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

text:
    [821 NE2d 942, 788 NYS2d 638]
    The People of the State of New York, Respondent, v Simeon Duggins, Appellant.
    Argued October 14, 2004;
    decided December 2, 2004

      POINTS OF COUNSEL

      Warren S. Landau, New York City, and Lynn W.L. Fahey for appellant.
    I. The evidence was insufficient to establish that appellant killed Wayne Flowers “as part of the same criminal transaction” in which he killed Franklin Dennis in a different location an hour and a half later, and the court erred in importing the broad definition of a “criminal transaction” contained in CPL 40.10 (2) for double jeopardy purposes into the first-degree murder statute when it defined that crime under Penal Law § 125.27 (1) (a) (viii) for the jury. (Jackson v Virginia, 443 US 307; People v Fernandez, 173 Misc 2d 938; People v Finnegan, 85 NY2d 53; People v Walker, 81 NY2d 661; Pajak v Pajak, 56 NY2d 394; Segar v Youngs, 45 NY2d 568; People v McNamara, 78 NY2d 626; People v Neumann, 51 NY2d 658; People v Powell, 54 NY2d 524; People v Hernandez, 98 NY2d 8.) II. When the People relied almost exclusively on appellant’s confessions, which he testified were involuntary, the trial court’s error in revising its Sandoval ruling to permit inquiry about appellant’s prior violent crime was harmful because the evidence of guilt was far from overwhelming when properly assessed “without reference to the error” and, in any event, there was a significant probability of acquittal but for the error. (People v Sandoval, 34 NY2d 371; People v Fardan, 82 NY2d 638; People v Cooper, 92 NY2d 968; People v Morgan, 171 AD2d 698; People v Melendez, 55 NY2d 445; People v Moore, 92 NY2d 823; Richardson v Marsh, 481 US 200; People v Moore, 71 NY2d 684; People v Lugo, 218 AD2d 711; People v Rojas, 97 NY2d 32.)

      Charles J. Hynes, District Attorney, Brooklyn (Victor Barall and Leonard Joblove of counsel), for respondent.
    I. Defendant’s contention that, under a correct definition of the term “criminal transaction,” the evidence was legally insufficient to sustain his first-degree murder conviction is without merit. The CPL 40.10 definition of “criminal transaction” applied to Penal Law § 125.27 (1) (a) (viii), and under that definition, the evidence of defendant’s guilt was legally sufficient. (People v Reed, 265 AD2d 56; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Matter of SIN, Inc. v Department of Fin., 71 NY2d 616; People v Cruz, 48 NY2d 419; People v McNamara, 78 NY2d 626; People v Fernandez, 173 Misc 2d 938; People v Mateo, 93 NY2d 327; Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166; People v Hernandez, 98 NY2d 175; People v Cahill, 2 NY3d 14.) II. The trial court properly modified its Sandoval ruling. In any event, if the court erred, the error was harmless because the evidence of defendant’s guilt, without reference to the error, was overwhelming, and there is no significant probability that the jury would have acquitted defendant had the court not modified its Sandoval ruling. (People v Smith, 97 NY2d 324; People v Hopkins, 58 NY2d 1079; People v Lawson, 293 AD2d 338; People v Sandoval, 34 NY2d 371; People v Fardan, 82 NY2d 638; People v Crimmins, 36 NY2d 230; People v Gray, 84 NY2d 709; People v Smith, 97 NY2d 324; People v Hopkins, 58 NY2d 1079; People v Schaeffer, 56 NY2d 448.)
   OPINION OF THE COURT

Read, J.

We hold that the People adduced legally sufficient evidence that defendant committed first-degree murder by killing multiple victims during the “same criminal transaction” (Penal Law § 125.27 [1] [a] [viii]). In affirming defendant’s conviction, we conclude that the statutory term of art “criminal transaction” in Penal Law § 125.27 (1) (a) (viii) should be construed as incorporating the technical definition given the phrase in CPL 40.10 (2).

I.

Defendant killed two people in a 90-minute time span. The first killing occurred about 1:40 a.m. on July 4, 1999, and the second took place nearby at roughly 3:10 a.m. The evidence against defendant consisted of statements and confessions that he made after being arrested; specifically, one that the police reduced to writing, which defendant signed, and another in a 50-minute videotaped interview conducted by an assistant district attorney. Additionally, the People presented several witnesses at trial who corroborated details of defendant’s confessions.

Defendant, who acknowledged being friendly with members of the “Bloods,” fatally shot his two victims, who he claimed were members of the “Crips,” because he believed that they were prepared to carry out a contract to kill him. The two homicides occurred within a relatively small area of a housing project where defendant had lived until two weeks beforehand. He moved away after a conflict with someone named “Snag.” Defendant subsequently learned that Snag, who had abandoned the Bloods to become a Crip, had issued an order or contract, called a “187” in gang parlance, directing any member of the Crips to kill him. Armed with a .38 caliber snub-nosed handgun, defendant returned to the housing project on July 3, 1999 to “squash” this contract on his life. As defendant put it, he intended to “catch[ ]” Snag.

Initially, defendant encountered a man known to him as “Callie” standing with another man. According to defendant, these men, like Snag, belonged to the Crips, and were “hench[es]” who could carry out the hit. When defendant tried to talk to the two men, they said nothing. He then entered a building in the housing project to visit a friend. From a window, defendant observed Callie and his companion, now standing with a third man. Fearing that the three men were armed and on the lookout for him, defendant and his unarmed friend decamped to the building’s roof, where defendant remained for nearly four hours.

Despite his professed fear for his life, defendant eventually left the roof—now alone, but still armed—and went to a fast-food restaurant outside the housing project. After eating, he returned and observed Callie standing with four men, none of whom he knew to be Crips. Believing that Callie would no longer be armed, defendant decided to confront him regarding the contract. They argued. Backing away, defendant drew his gun and fired three shots at Callie, fatally wounding him in the head. In his videotaped confession, defendant said that he intended only to hurt, not kill, Callie.

As defendant ran away after shooting Callie, he realized that as a result of what he had just done, Snag would now surely want him dead. He circled back to the roof, a vantage point from which to look out for Snag, “the dude [he] had the main beef with,” and watched as police officers placed crime scene tape near Callie’s body. Defendant saw Snag approach the crime scene on a bike “to see what happened to . . . his gang members,” then leave. Defendant reloaded his gun. As he explained, “I went this far [so] I better go on with it or . . . I’m gonna wind up dead.”

When defendant next spied Snag, standing on the sidewalk below and smoking marijuana, he climbed down a fire escape from the roof to street level and crept towards him. With his gun at the ready, defendant ducked behind a wall on which Snag’s male and two female companions were sitting. Then defendant called out, causing Snag to turn. Although he saw no weapon in Snag’s hands, defendant fired three shots, inflicting a fatal chest wound. Again, defendant claimed that he wanted his victim to “feel it,” but not to die.

Following the second killing, defendant hid in a vacant apartment in the housing project; he left the following day, disguised in women’s clothing. The police arrested him approximately 2V2 weeks later.

Defendant stood trial on two counts of first-degree “same transaction” murder (Penal Law § 125.27 [1] [a] [viii]). The first count charged defendant with intentionally killing Callie, and then, as part of the same criminal transaction and with intent either to kill or cause serious physical injury, causing Snag’s death; the second count reversed the order of the victims, listing Snag as the primary one. At the close of trial, the judge submitted both counts to the jury. Rejecting defendant’s request to define “criminal transaction” by reference to dictionary definitions, the trial court instead supplied the definition in CPL 40.10 (2). The jury convicted defendant of intentionally killing Snag (the second count), and acquitted him of the other count. The jury did not consider any lesser-included offenses because the trial judge had instructed the jurors to do so only if they acquitted defendant on both first-degree murder counts.

A divided Appellate Division affirmed defendant’s judgment of conviction (1 AD3d 450 [2d Dept 2003]), and a dissenting Justice of that Court granted him leave to appeal to us. We now affirm.

II.

Defendant asserts that the phrase “criminal transaction” in subdivision (1) (a) (viii) of the first-degree murder statute must be understood by its ordinary meaning and not by reference to the definition in CPL 40.10 (2). We disagree. Courts generally ascribe statutory words an “ordinary and usual” meaning only if a statute contains “words of ordinary import” (McKinney’s Cons Laws of NY, Book 1, Statutes § 232, at 392-393). A different rule applies when statutory language has “received a technical or peculiar significance from long habitual construction, or by legislative definition” (id. at 393-394).

“Words of technical or special meaning are construed according to their technical sense, in the absence of anything to indicate a contrary legislative intent” (Statutes § 233). Put somewhat differently, when a statute does not define a particular term, it is presumed that the term should “be given its ‘precise and well settled legal meaning in the jurisprudence of the state’ ” (Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166, 173 [1988], quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 233).

Moreover, “[w]hen terms of art or peculiar phrases are used, it is supposed that the Legislature had in view the subject matter about which such terms or phrases are commonly employed” (McKinney’s Cons Laws of NY, Book 1, Statutes § 233, at 397). As a corollary, “[w]here the same word or group of words is used in . . . different statutes, if the acts are similar in intent and character the same meaning may be attached to them” (McKinney’s Cons Laws of NY, Book 1, Statutes § 236, at 401-402). Applying these standard rules of statutory construction, we conclude that the trial court properly construed “criminal transaction” in subdivision (1) (a) (viii) of the first-degree murder statute by reference to the definition in CPL 40.10 (2), a conclusion shared by the two intermediate appellate courts of this state which have considered the issue (see People v Reed, 265 AD2d 56, 66-67 [2d Dept 2000]; People v Mower, 280 AD2d 25, 28 [3d Dept 2001], affd on other grounds 97 NY2d 239 [2002]).

It is difficult to imagine a clearer example of “[w]ords of technical or special meaning” (McKinney’s Cons Laws of NY, Book 1, Statutes § 233) than the phrase “criminal transaction” as defined in CPL 40.10 (2). This phrase is a legislative term of art, appearing in many statutes in addition to CPL 40.10 and the first-degree murder provision at issue here (see e.g. CPL 40.40 [1]; 40.50 [2], [3]; 200.20 [2] [a]; 200.40 [1] [c]; 240.20 [1] [a], [g]; Penal Law § 60.27 [4] [a]; § 70.25 [2-fl; §§ 130.53, 145.05 [1]; §§ 215.15, 215.16, 215.17, 450.10 [4] [cl; § 460.10 [4] [b]; § 470.03 [1], [2]; § 480.00 [7] [b]; see also CPLR 1310 [4-b] [b]; ECL 71-4401 [9]; Family Ct Act § 311.6 [2]; Vehicle and Traffic Law § 1690 [1]). Importantly, whatever the meaning of the phrase in these other statutes, nothing in the text or legislative history of the first-degree murder statute suggests that the Legislature intended for “criminal transaction” to have a meaning different from CPL 40.10 (2) (see Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d at 173; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 233).

Further, applying the species of dictionary definition proposed by defendant would render the statute vague, something the Legislature surely did not intend for a statute drafted to “narrow” the potential class of intentional murderers exposed to capital punishment (see People v Harris, 98 NY2d 452, 476 [2002] [the United States Supreme Court has “recognized that a state’s capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty” (internal quotation marks and citations omitted)]; see also People v Cahill, 2 NY3d 14, 68 [2003] [“(T)he Legislature crafted Penal Law § 125.27 (1) (a) to narrow the class of eligible offenders”]). The impracticability of using dictionary definitions is easily shown. By way of example, according to the Random House Unabridged Dictionary (2d ed 1993), to “transact” is to “carry on or conduct (business, negotiations, activities, etc.) to a conclusion or settlement.” This definition (suggested by defendant) begs the questions of what kind of “activities” a factfinder should view and how to determine when the “activities” have reached a “conclusion.” By contrast, CPL 40.10 (2) defines exactly what criminal conduct, both temporal and motivational, will lead to liability under subdivision (1) (a) (viii) of the first-degree murder statute.

Thus, liability under Penal Law § 125.27 (1) (a) (viii) attaches only to a defendant who commits an intentional murder and “causes the death of [at least one] additional person” (Penal Law § 125.27 [1] [a] [viii]) by engaging in “two or more or a group of acts either ... so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or ... so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2]). Limiting liability to only those intentional killers so situated fulfills the Legislature’s narrowing goal (see People v Cahill, 2 NY3d at 68).

Defendant makes two arguments to counter the importation of CPL 40.10 (2)’s definition of “criminal transaction” into Penal Law § 125.27 (1) (a) (viii). First, he points out that CPL 40.10 states that “[t]he following definitions are applicable to this article.” Citing People v McNamara (78 NY2d 626 [1991]) and People v Neumann (51 NY2d 658 [1980]), he contends that the definition of “criminal transaction” in CPL 40.10 is, thus, inapplicable to any other statute unless the Legislature expressly provides otherwise. Both McNamara and Neumann, however, involved attempts to define a particular substantive offense by reference to definitions applicable to another offense aimed at proscribing different conduct (see People v McNamara, 78 NY2d at 630 [refusing to apply definitions applicable to article 245 of the Penal Law to article 240 because the former, as contrasted with the latter, “is directed to offenses against ‘public sensibilities,’ not ‘public order,’ and proscribes different conduct”]; People v Neumann, 51 NY2d at 665 [definition sharing between weapons offenses and perjury offense would not lie “(b)ecause neither (of the weapons offenses) is related in any way to a prosecution for perjury”]). Here, by contrast, we are simply determining that a statutory term of art common to both statutes under consideration should be understood in light of the technical meaning supplied by CPL 40.10 because nothing in Penal Law § 125.27 indicated that the Legislature intended otherwise.

Defendant also argues that, at most, only the “single criminal incident” definition in subdivision (2) (a) of CPL 40.10 should be imported into Penal Law § 125.27 (1) (a) (viii). According to defendant, incorporating the “single criminal venture” definition of subdivision (2) (b) into subdivision (1) (a) (viii) of the first-degree murder statute would render subdivision (1) (a) (xi) of the latter statute superfluous. To support his argument, he asserts that there is no difference between a “group of acts . . . so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2] [b]) and a “common scheme or plan” as used in Penal Law § 125.27 [1] [a] [xi]. Defendant is wrong.

Initially, there is no basis for incorporating only half of CPL 40.10 (2)’s definition of “criminal transaction” into Penal Law § 125.27 (1) (a) (viii). If the Legislature had intended this result, it would have so stated, as it has both in other sections of the Penal Law (see Penal Law § 480.00 [7] [b] [for purposes of the criminal forfeiture provisions of the Organized Crime Control Act, defining a “(s)pecified felony offense” as “three or more violations of’ certain enumerated felonies, “which violations do not constitute a . . . single criminal transaction, as defined in paragraph (a) of subdivision two of section 40.10 of the criminal procedure law”]), and in other statutes (see CPLR 1310 [4-b] [b] [same with regard to civil forfeiture]).

Additionally, the potential superfluity of which defendant complains would exist only if he is correct that a “common scheme or plan” is equivalent to a “single criminal venture.” The Legislature, however, has treated these two terms of art as distinct. CPL 200.40 (1), for example, provides for joinder of multiple defendants in a single indictment if either “all the offenses charged are based upon a common scheme or plan; or ... all the offenses charged are based upon the same criminal transaction as that term is defined in subdivision two of section 40.10” (CPL 200.40 [1] [b], [c]). If the “single criminal venture” portion of CPL 40.10 (2) meant the same as a “common scheme or plan,” there would have been no need for the Legislature to differentiate as it did in CPL 200.40 (1), In fact, accepting defendant’s argument that a “single criminal venture” as defined in CPL 40.10 (2) is equivalent to a “common scheme or plan” would render CPL 200.40 (1) partially redundant or superfluous, the very result that defendant claims that he seeks to avoid.

The plain language of Penal Law § 125.27 also eliminates any potential superfluity. Subdivision (1) (a) (viii) premises liability on committing multiple homicides during the “same criminal transaction” while subdivision (1) (a) (xi) applies only if the homicides occurred in “separate criminal transactions.” A “same” transaction obviously cannot also be a “separate” transaction.

Further, under CPL 40.10 (2), a “ ‘[cjriminal transaction’ means conduct . . . comprised of two or more or a group of acts.” An “[a]ct” is a “bodily movement” (Penal Law § 15.00 [1]), while “[c]onduct” normally consists simply of “an act or omission and its accompanying mental state” (Penal Law § 15.00 [4]). By definition then, liability under subdivision (1) (a) (viii) is predicated upon committing at least two homicidal acts sharing either the temporal proximity necessary to be a “single criminal incident” under CPL 40.10 (2) (a), or the motivational unity called for in CPL 40.10 (2) (b) so as to “constitute elements or integral parts of a single criminal venture.” The latter is what defendant suggests may be indistinguishable from a “common scheme or plan” homicide under Penal Law § 125.27 (1) (a) (xi). What defendant overlooks, however, is that subdivision (1) (a) (viii) contemplates a virtual simultaneity, or at least contemporaneity, between the “two or more or a group of acts” necessary to establish “same transaction” first-degree murder, even acts that are “elements or integral parts of a single criminal venture” (CPL 40.10 [2] [b]). By contrast, subdivision (1) (a) (xi) applies in the absence of contemporaneity.

By way of explanation, the first-degree murder statute provides that “[a] person is guilty of murder in the first degree when . . . [w]ith intent to cause the death of another person, he causes the death of such person or of a third person” (Penal Law § 125.27 [1] [emphasis added]). The Legislature’s use of the present tense (“causes”) carries into subdivision (1) (a) (viii), but not into subdivision (1) (a) (xi).

Specifically, liability under subdivision (viii) attaches solely if, “as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons” (Penal Law § 125.27 [1] [a] [viii] [emphasis added]). Thus, as called for by the present tense “causes,” any additional homicides must be contemporaneous with the threshold intentional murder. If not, a defendant may simply have committed separate second-degree murders, or perhaps a second-degree murder and first-degree manslaughter (see People v Cahill, 2 NY3d at 64 [the first-degree murder “statute begins by declaring that every first degree murder must include an intentional (second degree) murder. An additional aggravating factor—murder ‘plus’—raises the crime to murder in the first degree”]).

By contrast, subdivision (1) (a) (xi) speaks in the past tense (“caused”), not the present tense (“causes” as used in subparagraph [viii]). Liability attaches under subparagraph (xi) solely “when . . . [w]ith intent to cause the death of another person, he causes the death of such person or of a third person; and . . . the defendant intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months” (Penal Law § 125.27 [1] [a] [xi] [emphasis added]).

Thus, subdivision (1) (a) (xi) contemplates that the additional homicides necessary to aggravate a threshold intentional second-degree murder to first-degree murder (see People v Cahill, 2 NY3d at 64) will have occurred in the past. Aggravation occurs under subdivision (1) (a) (viii), however, only if the additional homicides are sufficiently contemporaneous with the threshold intentional murder. There is consequently no danger of conflating “separate criminal transactions . . . common scheme or plan” murder under Penal Law § 125.27 (1) (a) (xi) with “single criminal venture” (CPL 40.10 [2] [b]) “same criminal transaction” murder under Penal Law § 125.27 (1) (a) (viii).

Because we conclude that the trial court properly charged the jury using the CPL 40.10 definition for “criminal transaction,” we now turn to whether the People adduced legally sufficient evidence that the homicides committed by defendant occurred during the “same criminal transaction.” Viewed in the light most favorable to the People (see People v Cunningham, 2 NY3d 593, 595 n 1 [2004]), we conclude that the evidence of defendant’s guilt was clearly sufficient.

By his own admission, defendant armed himself and set about “squashfing]” the contract on his life by “catch[ing]” Snag, the person whom he held responsible for placing the contract. Before finding Snag, though, defendant happened upon Callie, whom he viewed as Snag’s enforcer and therefore a likely candidate to carry out the hit. As part of his effort to “squash” the contract, defendant decided to confront Callie and, as a result of this motivation, he killed Callie.

After killing Callie, defendant raced back to an area less than a block away where he knew he would likely encounter Snag. Although defendant had a 90-minute interval during which to leave, he instead chose to stay, determined to “go on with it.” Carrying through on his continuing motivation to “squash” the contract, defendant indeed went “on with it” by reloading his gun and lying in wait for an opportunity to “catch[ ]” Snag. Ultimately, defendant completed exactly what he had set out to do: he came down from his rooftop sanctuary, sneaked up on Snag and shot him to death.

The spatial and temporal proximity of defendant’s homicidal acts, all of which were fueled by a common motivation, establish that he acted during the “same criminal transaction.” Indeed, defendant’s various acts were both “so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident” (CPL 40.10 [2] [a]) and “so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2] [b]). Put differently, defendant’s two homicidal acts were part of a continuous course of conduct sufficient to establish the contemporaneity necessary to constitute “same transaction” first-degree murder. Defendant’s remaining claim does not warrant reversal of his judgment of conviction. Accordingly, the order of the Appellate Division should be affirmed.

R.S. Smith, J. (dissenting).

I agree with the majority that the evidence was sufficient to permit a correctly-charged jury to convict defendant of first degree murder, and that the Sandoval error of which defendant complains was harmless. I dissent from affirmance of the conviction, however, because I believe the jury was incorrectly charged on the definition of “criminal transaction.” The definition used in the charge, while broadening the scope of the subparagraph of the Penal Law involved in this case, shrinks an important part of another subparagraph— the “common scheme or plan” branch of the serial murder statute—to the vanishing point.

Murder in the first degree is defined in Penal Law § 125.27 (1). Section 125.27 (1) (a) lists, in 13 subparagraphs, the aggravating factors that can convert second degree murder to first degree murder. Two of those subparagraphs—subparagraph (viii), the one at issue here, and subparagraph (xi), the serial murder subparagraph—use the term “criminal transaction.” Section 125.27 (1) (a) (viii) provides that first degree murder occurs where:

“(viii) as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons; provided, however, the victim is not a participant in the criminal transaction” (emphasis added).

Section 125.27 (1) (a) (xi) says a killing may be murder in the first degree where:

“(xi) the defendant intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months when committed in a similar fashion or pursuant to a common scheme or plan” (emphasis added).

Thus subparagraph (viii) applies only where crimes are committed “as part of the same criminal transaction” and subparagraph (xi) only where they are committed “in separate criminal transactions.” The two subparagraphs are mutually exclusive, and to expand or contract the definition of “criminal transaction” is a zero sum game: the more cases the definition includes, the more cases will fit within subparagraph (viii) and the fewer within subparagraph (xi). The flaw in the majority opinion, I believe, is that it never addresses this aspect of the statute. It discusses at some length another difference between subparagraphs (viii) and (xi)—that the former uses the present tense and the latter the past. But that discussion is irrelevant to my point, which is that the definition of “criminal transaction” affects each subparagraph in a fundamentally opposite way. For that reason the term should, if possible, be defined in a way that gives meaningful scope to both subparagraphs.

The Legislature has left it to the courts to select a definition. It did not define the term “criminal transaction” for purposes of Penal Law § 125.27; it could have, but did not, adopt the definition contained in CPL 40.10 (2), which is as follows:

“ ‘Criminal transaction’ means conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.”

Like the majority, I do not read into the Legislature’s failure to adopt the CPL definition an implied rejection of it. I agree that we are free to adopt that definition for purposes of Penal Law § 125.27 if we think it the best available. But we are not compelled to adopt it, and in my view it is not the best available. I would adopt instead only subsection (a) of CPL 40.10 (2), and I would define “criminal transaction” to mean “conduct which establishes at least one offense, and which is comprised of two or more or a group of acts so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident.”

If this definition is adopted, Penal Law § 125.27 (1) (a) (viii) will continue to have substantial content. Anyone who kills two people where the killings are sufficiently close in time and circumstance of commission will be guilty of first degree murder under subparagraph (viii). This definition would clearly permit the present defendant to be convicted of first degree murder. His two killings were only about an hour and a half apart and were linked by a continuous chain of circumstances: a jury could well have found that they were parts of “a single criminal incident.”

But it is a mistake, in my view, to include the second half of the CPL definition—acts “so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture”—when defining “criminal transaction” for Penal Law § 125.27 purposes. When this part of the definition is applied to Penal Law § 125.27 (1) (a) (xi) it produces a result that is strange at best. Subparagraph (xi) applies to crimes that occur “in separate criminal transactions . . . pursuant to a common scheme or plan.” Under the definition the majority adopts, this must mean crimes that are not “so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” and yet are part of “a common scheme or plan.” The language seems almost perfectly self-contradictory; I cannot think of a single case to which it would apply, and neither the People’s brief in this case nor the majority opinion offers an example. Thus the majority’s definition effectively nullifies the “common scheme or plan” branch of Penal Law § 125.27 (1) (a) (xi). Subparagraph (xi) would have meaning only as applied to crimes committed in “separate criminal transactions ... in a similar fashion.” When the Legislature added the words “or pursuant to a common scheme or plan” it was apparently wasting its breath.

Accordingly, I would reverse the defendant’s conviction on the ground that the trial court erroneously adopted the definition of “criminal transaction” contained in CPL 40.10 (2) (b).

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

Order affirmed.

      . Penal Law § 125.27 (1) (a) (viii) provides that “[a] person is guilty of murder in the first degree when . . . [wjith intent to cause the death of another person, he causes the death of such person or of a third person; and . . . as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons.” A “criminal transaction” is defined in CPL 40.10 (2) as “conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.”

      . In his confessions, defendant identified his friend Marcus as Snag’s male companion. Marcus testified for the People, corroborating defendant’s statement that Marcus had, indeed, been present when Snag was shot. According to Marcus, Snag uttered an expletive, which caused Marcus to turn and look in the same direction as Snag. When he did so, Marcus saw a “flash” and heard gunshots. He observed defendant near the flash, about 12 to 13 feet away from Snag.

      . Defendant testified at trial, claiming that he had invented his confessions under duress, and had not even been present at the housing project on the day of the murders. For example, defendant stated in his confessions that he hid in a vacant apartment with his friend “Snoop” after the shootings. While there, he phoned “Fife,” from whom he had borrowed the murder weapon, and arranged for someone to come and pick up the gun from him. As defendant told it in his confessions, a girl named “Sin” ultimately came to the apartment to get the gun, which he had placed in a bag. In his trial testimony, however, defendant claimed to have “made up” Sin. In rebuttal, the People presented a witness named Cindy Jean. She testified that, around July 4, 1999 (she couldn’t recall the exact date), her boyfriend, Fife, sent her to the housing project to pick up a package. When she arrived, Snoop met her, brought her to an apartment and handed her a bag to take to Fife. She remembered having seen defendant in the apartment.

      . Defendant did not raise his current claim concerning the definition of “criminal transaction” in the Appellate Division. The claim is fully amenable to our review, however, because defendant properly preserved it at trial (see CPL 470.35 [1] [“Upon an appeal to the court of appeals from an order of an intermediate appellate court affirming a judgment, sentence or order of a criminal court, the court of appeals may consider and determine . . . any question of law involving alleged error or defect in the criminal court proceedings resulting in the original criminal court judgment, sentence or order, regardless of whether such question was raised, considered or determined upon the appeal to the intermediate appellate court”]).

      . Penal Law § 125.27 (1) (a) (xi) provides that “[a] person is guilty of murder in the first degree when . . . [w]ith intent to cause the death of another person, he causes the death of such person or of a third person; and . . . the defendant intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months when committed in a similar fashion or pursuant to a common scheme or plan.”

      . The dissent seems to read subdivision (1) (a) (xi)’s requirement of “separate” criminal transactions as somehow negating the motivational linkage contemplated by CPL 40.10 (2) (b)’s “single criminal venture” definition. What the dissent overlooks is that acts constituting “separate” homicidal transactions lack, not motivational unity, but rather the contemporaneous conduct required to be the “same criminal transaction.” Thus, when different intentional murders are remote enough (due to a lack of the continuous conduct present in this case) to constitute “separate criminal transactions,” those murders may nonetheless have been carried out “pursuant to a common scheme or plan.”

      . While it may have been the case here, we are not suggesting that a defendant’s acts must establish both parts of the CPL 40.10 (2) definition of “criminal transaction.” Indeed, the trial court charged the jury in the disjunctive (compare People v Mateo, 2 NY3d 383, 406 [2004], cert denied — US —, 124 S Ct 2929 [2004] [rejecting the defendant’s claim “that the jury be unanimous on one theory (of first-degree murder liability) or the other”]), as the Criminal Jury Instructions recommend (see CJI2d[NY] Penal Law § 125.27 [1] [a] [viii], at 125-2).


source: Caselaw Access Project

author: CIPARICK, J.

license: Public Domain

text:
    [821 NE2d 952, 788 NYS2d 648]
    In the Matter of the Arbitration between R.M. Kliment & Frances Halsband, Architects, Respondent, and McKinsey & Company, Inc., Appellant.
    Argued November 17, 2004;
    decided December 16, 2004

      POINTS OF COUNSEL

      Stroock & Stroock & Lavan LLP, New York City (Brian M. Cogan and Tom A. Hakemi of counsel), for appellant.
    This Court should reverse because the decision below erroneously applies CPLR 214 (6) to an action in contract when CPLR 214 (6) applies only to an action for malpractice. (Caminetti v United States, 242 US 470; Zaldin v Concord Hotel, 48 NY2d 107; Golub v Baer, Marks & Upham, 172 AD2d 489; 530 E. 89 Corp. v Unger, 54 AD2d 848; Incorporated Vil. of Rockville Ctr. v Spiegel, Peter & Liu, Architects, 295 AD2d 479.)

      Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York City (Larry E Gainen and Joan Walter of counsel), for respondent.
    The First Department’s decision granting R.M. Kliment & Frances Halsband, Architects’ petition to permanently stay the arbitration on statute of limitations grounds should be affirmed. (Chase Scientific Research v NIA Group, 96 NY2d 20; Ruffolo v Garbarini & Scher, 239 AD2d 8; Sears, Roebuck & Co. v Eneo Assoc., 43 NY2d 389; Video Corp. of Am. v Frederick Flatto Assoc., 58 NY2d 1026; Santulli v Englert, Reilly & McHugh, 78 NY2d 700; 530 E. 89 Corp. v Unger, 54 AD2d 848, 43 NY2d 776; Carr v Lipshie, 8 AD2d 330, 9 NY2d 983; Matter of Landow & Landow Architects v Shorefront Jewish Geriatric Ctr., 289 AD2d 492; Breslin Realty Dev. Corp. v Lituchy, 269 AD2d 554; Brushton-Moira Cent. School Disk v Fred H. Thomas Assoc., 91 NY2d 256.)
   OPINION OF THE COURT

CIPARICK, J.

In 1996, the Legislature amended CPLR 214 (6) to provide that the limitations period in nonmedical malpractice claims is three years, whether the complaint is cast in contract or in tort. In this case we are called upon to determine whether the breach of a provision in an architectural contract requiring that plans, drawings and specifications comply with applicable building codes is governed by the three-year statute of limitations for malpractice claims or the more generous six-year contract limitations period. We hold that the purpose of the statute is best served by applying the three-year statute of limitations applicable to all nonmedical professional malpractice claims.

In January 1998, McKinsey & Company, Inc. entered into an agreement with R.M. Kliment & Frances Halsband, Architects (K&H) through which K&H would perform architectural and interior design services in connection with 13,000-plus square feet of office space McKinsey had leased in Stamford, Connecticut. The parties agreed that disputes arising from the contract would be subject to arbitration.

Upon K&H’s completion of the project, the Stamford Building Department issued a certificate of occupancy for the premises dated November 3, 1998. However, four years later, McKinsey claimed K&H failed to provide fire protection in compliance with the Connecticut Building Code and as specified in the parties’ agreement and that McKinsey was required to install fire protection at its own expense. Section V (A) of the agreement, entitled “ARCHITECT’S RESPONSIBILITY FOR DOCUMENTS,” states that:

“All plans, drawings, specifications and other documents prepared by Architect or its consultants or engineers in connection with the Project . . . shall be in compliance with all laws, codes, ordinances and other requirements applicable to the Project (including, without limitation, the relevant building code, the requirements of the local board of fire underwriters or similar body, and any permits for the work) . . . .”

In April 2002, McKinsey submitted a demand for arbitration. K&H responded by commencing the instant CPLR article 75 special proceeding for a permanent stay of arbitration, arguing that the claim was barred by the CPLR 214 (6) three-year statute of limitations for nonmedical malpractice actions. K&H further sought to dismiss McKinsey’s claim with prejudice. Supreme Court denied the petition, finding that McKinsey’s claim was one for breach of contract rather than malpractice because the architects failed to perform a contractual obligation. Supreme Court determined that the claim was timely under CPLR 213 (2)—the six-year contract statute of limitations—and directed the parties to proceed to arbitration.

The Appellate Division reversed, holding that the contract provision did not guarantee code compliance, but was an ordinary contractual term by which the parties agreed K&H would provide services in a professional manner. The Court stated that “whether petitioner’s alleged failure to comply with the applicable code provisions was a breach of contract or tortious in nature is immaterial for statute of limitations purposes, since the resulting noncompliance is the same, as is the remedy sought” (3 AD3d 143, 146 [2004]). The Appellate Division held that the claim was barred by CPLR 214 (6)—the three-year statute of limitations. We granted leave to appeal and now affirm.

Analysis

CPLR 214 (6) states that “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” is subject to a three-year statute of limitations. The Legislature specifically amended this statute in 1996 to counteract the effect of decisions by this Court that “abrogat[ed] and circumvent[ed] the original legislative intent” by allowing actions that were technically malpractice actions to proceed under a six-year contract statute of limitations (Revised Assembly Mem in Support, Bill Jacket, L 1996, ch 623).

Prior to the 1996 amendment, we determined the appropriate statute of limitations in nonmedical malpractice actions based upon the proposed remedy instead of the theory of liability (see e.g. Santulli v Englert, Reilly & McHugh, P.C., 78 NY2d 700, 708 [1992]; Sears, Roebuck & Co. v Enco Assoc., Inc., 43 NY2d 389, 394-395 [1977]). These cases held that liability would not have existed between the parties without the contractual relationship and that there was an implied agreement to perform professional services using due care (see Santulli, 78 NY2d at 707; Sears, 43 NY2d at 396). Parties were permitted to maintain a malpractice action under a breach of contract theory within the six-year statute of limitations, but were limited to damages available in a contract action if the three-year malpractice limitations period had expired (see Santulli, 78 NY2d at 709).

It is the effect of these decisions that the amendment to CPLR 214 (6) was intended to change. The legislative history makes clear that “where the underlying complaint is one which essentially claims that there was a failure to utilize reasonable care or where acts of omission or negligence are alleged or claimed, the statute of limitations shall be three years if the case comes within the purview of CPLR Section 214 (6), regardless of whether the theory is based in tort or in a breach of contract” (Revised Assembly Mem in Support, Bill Jacket, L 1996, ch 623).

Subsequent to the amendment, we again addressed CPLR 214 (6) and stated that it “was intended not only to remediate the Sears line of cases but also to reduce potential liability of insurers and corresponding malpractice premiums, and to restore a reasonable symmetry to the period in which all professionals would remain exposed to a malpractice suit” (Chase Scientific Research, Inc. v NIA Group, Inc., 96 NY2d 20, 27 [2001] [citations omitted]; see also Brothers v Florence, 95 NY2d 290, 299-300 [2000]). The Court recognized that a malpractice claim could “theoretically also rest on breach of contract to obtain a particular bargained-for result” (Chase, 96 NY2d at 25, citing Kirby, The Six-Year Legal Malpractice Statute of Limitations: Judicial Usurpation of the Legislative Prerogative?, 66 NY St BJ 14 [Dec. 1994]). The pertinent inquiry is thus whether the claim is essentially a malpractice claim.

McKinsey argues that this case is not a malpractice claim because it is not alleging that K&H failed to exercise due care in the performance of its professional obligations. Rather, McKinsey argues that this is a breach of contract claim as there is an express contractual provision stating that the plans, drawings and specifications will comply with the relevant building code and K&H breached its promise to comply with certain fireproofing requirements. McKinsey asserts that CPLR 214 (6) pertains to malpractice actions brought as contract actions for the breach of an implied contractual term requiring a professional to perform services in a nonnegligent manner, not for breach of a bargained-for contract provision.

McKinsey correctly notes that this case differs from the cases previously decided by this Court in that it alleges the breach of an express, rather than implied, term of the agreement. However, while compliance with the relevant building code may have been a particular bargained-for result, that result is not inconsistent with an architect’s ordinary professional obligations. Making such ordinary obligations express terms of an agreement does not remove the issue from the realm of negligence as argued by McKinsey, nor can it convert a malpractice action into a breach of contract action.

K&H did not guarantee a particular result or agree to perform a service above or beyond that which it might be expected to accomplish using due care even in the absence of the specific term in the agreement. Allowing this claim to proceed would accomplish the precise result the Legislature sought to prevent— allowing what is essentially a malpractice claim to be couched in breach of contract terms in order to benefit from the six-year statute of limitations. McKinsey’s claim is fundamentally a claim that K&H failed to perform services in a professional, nonnegligent manner by neglecting to comply with the relevant building codes as promised in the agreement. As a result, the claim is barred by CPLR 214 (6).

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.

      . Supreme Court originally granted K&H’s application for a permanent stay upon McKinsey’s default. However, the court granted McKinsey’s motion to reargue—characterizing it as a motion to vacate the default—vacated the default and permitted McKinsey to serve an answer.

      . This result is not meant to imply that an architect’s failure to comply with a relevant building code is negligence per se.


author: Graffeo, J.

text:
    [821 NE2d 959, 788 NYS2d 655]
    Robert Fleming et al., Appellants, v Rudolph W. Giuliani, as Mayor of the City of New York, et al., Respondents.
    Argued November 17, 2004;
    decided December 21, 2004

      POINTS OF COUNSEL

      Dienst & Serrins, LLP, New York City (Richard A. Dienst of counsel), for appellants.
    I. The Court of Appeals decision upholding the constitutionality of the predecessor of New York City Charter § 1127 in Matter of Legum v Goldin (55 NY2d 104 [1982]) was not asked to consider a city income tax on the total income of those executing a New York City Charter § 1127 waiver; the ruling should be limited to appellant’s salary only. (Criscione v City of New York, 97 NY2d 152; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Castro v United Container Mach. Group, 96 NY2d 398; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Desiderio v Ochs, 100 NY2d 159; Matter of Erie County Agric. Socy. v Cluchey, 40 NY2d 194; Allen v Minskoff, 38 NY2d 506; Lawrence Constr. Corp. v State of New York, 293 NY 634; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; City of Rochester v Bloss, 185 NY 42.) II. New York City Charter § 1127 (b) clearly states that when the Charter or the Administrative Code of the City of New York employs the term “salary,” “compensation,” or “any other word or words having a similar meaning,” such terms shall be deemed to be construed and mean the scheduled salary or compensation of any employee of the City of New York. (City of New York v State of New York, 94 NY2d 577; Matter of Legum v Goldin, 55 NY2d 104; City of New York v McLean, 170 NY 374; Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475.) III. New York City Charter § 1127 violates the Due Process Clause of the New York State Constitution which prohibits government from depriving a person of life, liberty or property without “due process” of law. (Matter of Zelinsky v Tax Appeals Trib. of State of N.Y., 1 NY3d 85; Shaffer v Carter, 252 US 37; Safe Deposit & Trust Co. of Baltimore, Md. v Virginia, 280 US 83; National Educ. Assn., Inc. v Lee County Bd. of Pub. Constr., 467 F2d 447; In re Lorber Indus, of Cal. Inc., 675 F2d 1062; City of New York v Feiring, 313 US 283; In re Camilli, 94 F3d 1330.) IV In the absence of New York City producing a signed New York City Charter § 1127 waiver no other documents can substitute for a voluntary contract. (Matter of Ganley v Giuliani, 94 NY2d 207; Matter of Legum v Goldin, 55 NY2d 104.) V Appellants are not guilty of laches and respondents were not prejudiced. (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801.)

      Michael A. Cardozo, Corporation Counsel, New York City (Jane L. Gordon and Pamela Seider Dolgow of counsel), for respondents.
    Plaintiffs accepted the benefits of New York City employment and cannot therefore avoid the plain requirements of that employment, including compliance with the express terms of New York City Charter § 1127, which, as the lower courts agreed, requires a condition of employment payment for all of an employee’s taxable income, and not just his or her city salary. (Matter of Ganley v Giuliani, 94 NY2d 207; Matter of Legum v Goldin, 55 NY2d 104; Matter of City of New York v Lieutenants Benevolent Assn., 285 AD2d 329; Matter of New York City Dept. of Probation v MacDonald, 205 AD2d 372; Matter of Schulz v State of New York, 81 NY2d 336; General Motors Acceptance Corp. v Clifton-Fine Cent. School Dist., 85 NY2d 232.)

      O’Donnell, Schwartz, Glanstein & Lilly LLP, New York City (Joel C. Glanstein and David M. Glanstein of counsel), for Lieutenants Benevolent Association of the City of New York, amicus curiae.
    I. Pursuant to the express text of New York City Charter § 1127, there must be a signed prehire agreement for a New York City employee to be subject to salary withholding. (Matter of Ganley v Giuliani, 94 NY2d 207; Matter of Ocean Hill-Brownsville Governing Bd. v Board of Educ. of City of N.Y., 30 AD2d 447, 23 NY2d 483; Golden v Koch, 49 NY2d 690; Matter of Judge Rotenberg Educ. Ctr. v Maul, 91 NY2d 298; Bender v Jamaica Hosp., 40 NY2d 560; Matter of Jose R., 83 NY2d 388; New York State Bankers Assn. v Albright, 38 NY2d 430; Schrader v Carney, 180 AD2d 200.) II. Laches cannot bar the claims of Avtar Josen and Israel Berkowitz since there is no showing of prejudice or that their delay was unreasonable or inexcusable. (Cohen v Krantz, 227 AD2d 581; Matter of Kuhn v Town of Johnstown, 248 AD2d 828; Matter of Ganley v Giuliani, 94 NY2d 207.)
   OPINION OF THE COURT

Graffeo, J.

New York City Charter § 1127 requires an applicant for city employment to enter into a contract with the City in which the prospective employee agrees to make payments in lieu of personal income taxes—so-called “condition of employment payments”—should he or she reside outside the City. The primary issue we are asked to resolve in this case is whether these condition of employment payments are to be computed using total taxable income or only the city salary earned by the employee. Based on the provisions of section 1127, as well as its underlying purpose, we conclude that the City is entitled to use total taxable income in determining the payments due and that such application is constitutional.

The Administrative Code of the City of New York requires city residents to pay a city personal income tax on all of their taxable income received during the year, subject to certain enumerated deductions, exemptions and modifications (see Administrative Code of City of NY §§ 11-1701, 11-1711, 11-1712). In contrast, individuals who are employed in the City but reside outside the City pay a city earnings tax on their wages or on their net earnings if self-employed (see Administrative Code § 11-1902). In 1973, the City adopted New York City Charter § 1127 (originally codified at section 820, and subsequently at section 822), which directs that all persons seeking employment with the City must enter into a written agreement, as a condition precedent to municipal employment, obligating city employees—if they are or become nonresidents of the City during the course of their employment—to make payments as if they were city residents paying city personal income taxes.

Plaintiffs are 13 physicians employed part-time by the New York City Police Department, holding the civil service title of “District Surgeon.” All of the plaintiffs reside outside the City and some have been employed by the City for over 20 years. In addition to their city employment, plaintiffs apparently derive income from their private practices and other sources. Plaintiffs commenced this action seeking injunctive relief and a declaration that the City improperly deducted section 1127 payments from their salaries. Alleging that they had not executed section 1127 preemployment agreements, plaintiffs asserted that all payments withheld under that City Charter provision were therefore unlawful. After joinder of issue, plaintiffs Avtar Josen, Israel Berkowitz, Bernard White and Stuart Eigen moved for summary judgment on the ground that they had never signed section 1127 agreements.

The City cross-moved for summary judgment to dismiss the complaint in its entirety, and in support of its motion, submitted written agreements signed by 10 of the plaintiffs, including Eigen, that required the payments delineated in section 1127. The City also tendered a certification signed by White, indicating that he agreed to “conform to Chapter 49 of the Charter,” but it acknowledged that the relevant preemployment agreements for Josen or Berkowitz could not be located. In response, Eigen and the remaining nine plaintiffs argued that, even though they had executed section 1127 agreements, the City had wrongfully determined the amount of the section 1127 payments owed by each plaintiff because the City based its calculations on total income rather than just their salaries from city employment.

Supreme Court denied plaintiffs’ motion for summary judgment and granted, in part, the City’s cross motion for summary judgment. The court held that section 1127 computation of income covers all income and that the City therefore properly withheld payments from the 10 plaintiffs who undisputedly signed section 1127 agreements, as well as from White, since his chapter 49 certification constituted his consent to comply with section 1127. The court concluded, however, that Josen and Berkowitz had raised triable issues of fact as to whether they had entered into section 1127 agreements. The Appellate Division granted the City’s motion for summary judgment in its entirety, concurring with Supreme Court that section 1127 applies to total income and determining that the Josen and Berkowitz claims were barred under the doctrine of laches. We granted plaintiffs leave to appeal.

Plaintiffs contend that section 1127 payments should apply only to the salaries they earn from their city employment and not to any other income they derive from other sources. They alternatively claim that the City’s withholding of payments on the basis of total income amounts to an unconstitutional tax on nonresidents. The City counters that the plain language of section 1127 demonstrates that nonresident employees are to make payments equal to the city personal income tax and calculated as if they were city residents and that this application is constitutional. We agree with the City.

New York City Charter § 1127, entitled “Condition precedent to employment,” provides:

“a. Notwithstanding the provisions of any local law, rule or regulation to the contrary, every person seeking employment with the city of New York or any of its agencies regardless of civil service classification or status shall sign an agreement as a condition precedent to such employment to the effect that if such person is or becomes a nonresident individual . . . such person will pay to the city an amount by which a city personal income tax on residents computed and determined as if such person were a resident individual . . . during such employment, exceeds the amount of any city earnings tax and city personal income tax imposed on such person for the same taxable period.
“b. Whenever any provision of this charter, the administrative code of the city of New York or any rule or regulation promulgated pursuant to such charter or administrative code employs the term ‘salary’, ‘compensation’, or any other word or words having a similar meaning, such terms shall be deemed and construed to mean the scheduled salary or compensation of any employee of the city of New York, undiminished by any amount payable pursuant to subdivision a of this section.”

We previously discussed the operation of the predecessor statute to section 1127 in Matter of Legum v Goldin (55 NY2d 104 [1982]). In that case we upheld the validity of section 1127’s predecessor determining that the obligation imposed by this provision does not constitute a tax payment; instead it is a valid payment pursuant to a contract voluntarily entered into as a condition precedent to municipal employment. In Matter of Ganley v Giuliani (94 NY2d 207 [1999]), we further clarified that section 1127 does not apply to nonresidents who have not executed section 1127 agreements and whose employment was transferred from a public benefit corporation to city agencies as a result of a merger. But in neither case did we have occasion to address whether section 1127 applies to all taxable income of a nonresident employee or only to the employee’s city salary.

We first analyze whether section 1127 covers total taxable income attributed to a nonresident city employee. Section 1127 (a) requires that an individual seeking city employment must enter into an agreement with the City wherein the prospective employee promises to pay the City, if the employee resides or later moves outside the City during the course of employment, the difference between the “city personal income tax . . . determined as if [the nonresident] were a resident” and “any city earnings tax and city personal income tax” actually imposed on the nonresident. To understand how this provision operates, it is necessary to compare the definition of “city personal income tax,” which is paid by city residents, with the definition of “city earnings tax,” which all nonresidents who work in the City must pay.

The city personal income tax is imposed on the “city taxable income” of all city residents (Administrative Code § 11-1701). The term “city taxable income” refers to a resident’s “city adjusted gross income less his city deduction and city exemptions” (Administrative Code § 11-1711 [a]). Significantly, the term “city adjusted gross income” is denoted as a resident’s “federal adjusted gross income as defined in the laws of the United States for the taxable year, with the modifications specified in this section” (Administrative Code § 11-1712 [a]). Hence, the city personal income tax is clearly a tax imposed on all taxable income of city residents—subject to appropriate deductions, exemptions and modifications—and not a tax limited to city wages.

In contrast, the city earnings tax is paid by all persons who are employed in the City but reside elsewhere. Currently, the tax consists of “[a] tax at the rate of one-fourth of one per cent on all wages” and “[a] tax at the rate of three-eighths of one per cent on all net earnings from self-employment’ ’ (Administrative Code § 11-1902 [a] [1] [i], [ii]). Unlike the city personal income tax, which encompasses taxable income from all sources, the city earnings tax applies only to city wages and self-employment earnings.

Based on the foregoing definitions, plaintiffs’ contention that section 1127 applies only to their city salaries finds no support in the language of the City Charter. Simply put, section 1127 treats nonresident city employees as if they were residents of the City by requiring them to agree to make payments equivalent to the city personal income tax, which by definition includes all taxable income (subject to specified deductions, exemptions and modifications), to the extent that amount exceeds any city earnings tax already paid to the City. Section 1127 therefore indicates that the computation of these payments is premised on an employee’s entire taxable income as reflected in the employee’s federal adjusted gross income.

Plaintiffs’ reliance on the terminology used in section 1127 (b) is misplaced. Section 1127 (a), the dispositive provision here, incorporates express references to the “city personal income tax” and “city earnings tax.” By the corresponding definitions, the provision is not limited to the salary or wages earned from city employment. Although section 1127 (b) defines the terms “salary” and “compensation” for purposes of the City Charter and the Administrative Code, those terms do not appear in section 1127 (a). Rather, section 1127 (b) merely explains that section 1127 (a) payments do not diminish a city employee’s salary for purposes of, for example, pension benefits.

Our interpretation is fully consistent with the legislative purpose of section 1127. The statutory provision later embodied in section 1127 was adopted more than 30 years ago to discourage city employees from moving out of the City for tax purposes (see 2 Proceedings of Council of City of NY, Dec. 13, 1972, at 1543; see also Ganley, 94 NY2d at 216; Matter of City of New York v Lieutenants Benevolent Assn., 285 AD2d 329, 331 [2001] [section 1127 enacted “to mitigate such a financial incentive that, otherwise might contribute to City employees relocating their residences outside of the City”]). If, as plaintiffs allege, section 1127 applies only to a nonresident’s city salary, a considerable financial incentive would still exist for city employees to reside outside the City. As viewed by plaintiffs, a city employee who lives in the City would be required to pay the city personal income tax on all taxable income while a city employee residing outside the City would only have to pay an amount equal to the city personal income tax owed on the employee’s city salary. Calculating section 1127 payments using total taxable income, on the other hand, places resident and nonresident city employees on equal footing, thereby promoting the City Council’s goal of encouraging employees to maintain their residences in the City.

We next address plaintiffs’ contention that the application of section 1127 in this case amounts to an unconstitutional tax. Plaintiffs’ reliance on Matter of Zelinsky v Tax Appeals Trib. of State of N.Y. (1 NY3d 85 [2003]) “confuses the fundamental distinction between a tax imposed by the sovereign and a contractual provision agreed to by two parties” (Legum, 55 NY2d at 107). We established in Legum that any payments made pursuant to a section 1127 agreement arise from voluntary contractual employment arrangements. Plaintiffs have not cited any constitutional provision that would prevent a nonresident city employee from contracting to make payments to the City based on total income and not just income derived from a city salary. The argument that section 1127 imposes an unconstitutional tax on employees who sign section 1127 agreements therefore fails.

Finally, the Appellate Division did not abuse its discretion as a matter of law in concluding that Josen’s and Berkowitz’s claims are barred by the doctrine of laches (see Matter of Vickery v Village of Saugerties, 64 NY2d 1161, 1163 [1985]; Amster dam Sav. Bank v City View Mgt. Corp., 45 NY2d 854, 856 [1978]). Plaintiffs’ remaining contentions are without merit.

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

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

Order affirmed, with costs.

      . The City indicates that between 700 and 1,000 agreements pursuant to section 1127 are filed annually.

        . Section 1127 is contained in chapter 49.

      . Based on the amount of a resident’s city taxable income, the city personal income tax rate in 2004, for example, varies between 2.907% and 4.45% (Administrative Code § 11-1701 [g] [1] [B]).

      . In Zelinsky, we stated that “[although a state may tax all the income of its residents, even income earned outside the taxing jurisdiction, it may constitutionally tax nonresidents only on their income derived from sources within the state” (1 NY3d at 89-90).

      . We decline to consider whether New York City Charter § 1127 applies to the income attributed to the spouse of a nonresident city employee because this case does not differentiate the implications of the tax elections available to spouses under Administrative Code § 11-1751.

      . We also agree with the Appellate Division’s conclusion that White’s “certification stating ‘I have read and shall conform to Chapter 49 of the City Charter’ (in which section 1127 is found) constitutes his agreement to have section 1127 applied to his income” (307 AD2d 866, 868 n [2003]).


author: G.B. Smith, J.

text:
    [822 NE2d 763, 789 NYS2d 456]
    John J. Sheehy, Respondent, v Clifford Chance Rogers & Wells LLP, as Successor-in-Interest by Merger to Rogers & Wells, Appellant.
    Argued September 7, 2004;
    decided October 26, 2004

      POINTS OF COUNSEL

      Holland & Knight LLP, New York City (H. Barry Vasios and Anthony J. Harwood of counsel), for appellant.
    I. The Appellate Division erred in concluding that the partnership documents permitted an oral agreement to pay supplemental retirement payments to a partner “treated as if” he were taking early retirement. (Brooke Group v JCH Syndicate 488, 87 NY2d 530; Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396; W.W.W. Assoc. v Giancontieri, 77 NY2d 157; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470; Reiss v Financial Performance Corp., 97 NY2d 195; Intercontinental Planning v Daystrom, Inc., 24 NY2d 372; Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229; Frank Corp. v Federal Ins. Co., 70 NY2d 966; Backer v Le-wit, 180 AD2d 134; Chadirjian v Kanian, 123 AJD2d 596.) II. Plaintiff-respondent’s breach of contract claim is barred by the statute of frauds. (D & N Boening v Kirsch Beverages, 63 NY2d 449; Martocci v Greater N.Y. Brewery, 301 NY 57; Cron v Hargro Fabrics, 91 NY2d 362; Acacia Natl. Life Ins. Co. v Kay Jewelers, 203 AD2d 40; Romar v Alli, 120 AD2d 420; Meyers v Waverly Fabrics, 65 NY2d 75; Zupan v Blumberg, 2 NY2d 547; Cohen v Bartgis Bros. Co., 264 App Div 260, 289 NY 846; Blake v Voight, 134 NY 69; Kane v Rodgers, 21 AD2d 773, 15 NY2d 544.) III. The Appellate Division’s decision may be reversed on the additional ground that John J. Sheehy’s alleged oral agreement is barred, by General Obligations Law § 15-301. (Backer v Lewit, 180 AD2d 134; Ganisin v Noeth, 163 AD2d 828; Chadirjian v Kanian, 123 AD2d 596; Bakhshandeh v American Cyanamid Co., 8 AD2d 35, 8 NY2d 981; DFI Communications v Greenberg, 41 NY2d 602.) IV The purported oral agreement is an unenforceable agreement to agree. (Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105; Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475; Willmott v Giarraputo, 5 NY2d 250.)

      Coblence & Warner, New York City (Kenneth E. Warner and Lewis S. Fischbein of counsel), for respondent.
    I. The Appellate Division properly ruled that the oral agreement alleged in the complaint is not barred by the statute of frauds. (Hubbell Elec. v State of New York, 153 Misc 2d 810; Cron v Hargro Fabrics, 91 NY2d 362; Weiner v McGraw-Hill, Inc., 57 NY2d 458; Lichtman v Estrin, 282 AD2d 326; Cabrini Med. Ctr. v KM Ins. Brokers, 142 AD2d 529; Pando v Fernandez, 127 Misc 2d 224, 118 AD2d 474; Kane v Rodgers, 21 AD2d 773, 15 NY2d 544; Kastner v Gover, 19 AD2d 480, 14 NY2d 821; RTC Props. v Bio Resources, 295 AD2d 285, 99 NY2d 531; Unicorn Enters. v Stonewall Contr. Corp., 232 AD2d 404.) II. The Appellate Division properly ruled that article X (b) of the Partnership Agreement, including its reference to a “written agreement,” has no relevance to John J. Sheehy’s claim for supplemental retirement payments under the Retirement Plan. (Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396; Muzak Corp. v Hotel Taft Corp., 1 NY2d 42; Reiss v Financial Performance Corp., 97 NY2d 195.) III. The Appellate Division properly ruled that neither section 6.1 nor section 2.5 (b) of the Retirement Plan undermines John J. Sheehy’s right to supplemental retirement payments under section 5 of the Plan. IV The Appellate Division properly ruled that John J. Sheehy’s right to receive supplemental retirement payments is not prohibited by General Obligations Law § 15-301 (1). (Backer v Lewit, 180 AD2d 134; Chadirjian v Kanian, 123 AD2d 596.) V The Appellate Division properly ruled that the oral agreement at issue here is not an unenforceable agreement to agree. VI. All material factual disputes must be referred to trial. (International Customs Assoc. v Bristol-Myers Squibb Co., 233 AD2d 161.)
   OPINION OF THE COURT

G.B. Smith, J.

In this breach of contract action, plaintiff John Sheehy, a former partner of defendant law firm’s predecessor Rogers & Wells, alleges that he was wrongfully denied certain retirement benefits orally promised to him in exchange for his agreement to take early retirement. The issue presented on this appeal is whether plaintiffs claim for the recovery of the benefits based on this alleged oral agreement is barred by the statute of frauds. We conclude that the statute of frauds does bar plaintiffs claim and therefore reinstate the order of Supreme Court dismissing the complaint.

At all times relevant to this case, the firm’s retirement plan, incorporated by reference into the partnership agreement, provided for early retirement for partners between the ages of 60 and 64. Partners who reached the age of 65 were eligible for normal retirement, while mandatory retirement began at age 70. The retirement benefits available to partners taking normal or mandatory retirement included four years of payments equal to 37.5% of the distribution of partnership profits which the partner would have received had he or she not retired (the four-year payout), participation in the firm’s medical and life insurance plans, use of office space and secretarial assistance, and supplemental retirement payments (SRPs), which are paid for life beginning in the fifth year after the partner’s retirement.

By contrast, partners taking early retirement would receive the amount in the partner’s net capital account, actual cash distributions made to the partner on or before the date of retirement and the partner’s share of the partnership profits accrued during the year of retirement. Partners taking early retirement were not entitled to subsequent profit distributions or SRPs. According to the partnership agreement, early retiring partners could receive additional payments only if the Executive Committee, in the exercise of its discretion, entered into a written agreement authorizing such payments. Moreover, the retirement plan stated that SRPs “shall not be paid to a Partner who takes Early Retirement, except at the specific written request of the Executive Committee.”

In December 1994, the firm’s Executive Committee requested plaintiffs resignation. According to plaintiff, he then met with James Asher, the supervising partner and member of the Executive Committee, who asked plaintiff to withdraw from the firm effective January 1, 1996. Asher allegedly told plaintiff that in return for his resignation, he would be treated as having taken early retirement at the firm’s request. Asher also allegedly promised that plaintiff would receive the four-year payout, SRPs and other retirement benefits under the partnership agreement. Plaintiff, then age 57, retired from the firm as of January 1, 1996, with the status of senior counsel. Senior counsel status, according to the retirement plan, is reserved for partners who retire “in accordance with the provisions of [the retirement p]lan.”

From 1996 until 1999, plaintiff indisputably received the four-year payout, consisting of annual profit distribution payments of approximately $200,000. Plaintiff maintained that he also participated in the firm’s health and life insurance benefits, and utilized firm office space and secretarial assistance. According to the complaint, the firm hired an outside actuary and later directed the firm’s controller to calculate the amount of SRPs that plaintiff would receive. The controller prepared a memorandum stating that plaintiff was entitled to receive SRPs in the amount of $81,245 each year beginning January 1, 2000. However, the firm subsequently refused to pay SRPs to plaintiff.

Plaintiff brought this lawsuit against the firm alleging breach of contract, unjust enrichment and breach of fiduciary duty arising from the failure to pay him SRPs. The firm raised various affirmative defenses, including the statute of frauds and the lack of a written agreement for the payment of SRPs in accordance with the provisions of the partnership agreement and the retirement plan. Plaintiff subsequently moved for an order, pursuant to CPLR 3212 (b), granting partial summary judgment, or alternatively, pursuant to CPLR 3211 (b), dismissing the firm’s affirmative defenses. Defendant cross-moved for summary judgment dismissing the complaint in its entirety for failure to comply with the statute of frauds or, in the alternative, for partial summary judgment dismissing so much of the complaint seeking damages for the present value of future installment payments not yet due. Supreme Court denied plaintiffs motion and granted defendant’s summary judgment motion dismissing the complaint in its entirety. In so doing, the court concluded that the statute of frauds barred plaintiff’s claims because the firm’s alleged obligation to make annual payments to him beginning five years after plaintiff’s retirement could not be performed within one year. Therefore, the court concluded, the contract was required to be in writing in order to be enforceable. The court further concluded that even if the statute of frauds did not bar the lawsuit, under the terms of the partnership agreement and the retirement plan, plaintiff was not entitled to SRPs because the firm made no specific written request for his early retirement.

The Appellate Division modified the order of Supreme Court, on the law, denied defendant’s cross motion as to plaintiff’s cause of action alleging breach of contract (except insofar as that cause sought damages for the present value of future installment payments not yet due), reinstated that cause of action to that extent and granted plaintiff’s motion dismissing certain affirmative defenses, and otherwise affirmed the order. Citing this Court’s decision in Kane v Rodgers (21 AD2d 773 [1964], affd 15 NY2d 544 [1964]), the Appellate Division held that the statute of frauds did not bar plaintiffs claim because the oral agreement between the parties had been completely performed within a year of its making and the payment of SRPs to plaintiff concerned only the enforcement of existing rights under the firm’s retirement plan. According to the Court, the oral agreement between the parties was for plaintiff to resign in exchange for the firm deeming him to have taken early retirement at the specific written request of the Executive Committee, thereby entitling plaintiff to receive SRPs under the retirement plan. The Court stated that this change of plaintiffs status—from partner to early retired partner—was capable of, and indeed was, performed within one year of making the agreement. The Court concluded that because plaintiffs right to collect SRPs was fixed upon his change of status, and the computation of the payment amount was a “ministerial act” (1 AD3d 225, 229 [2003]), the mere fact that the payments would extend into the future did not bring the agreement within the scope of the statute of frauds. The Appellate Division also concluded that nothing in the partnership agreement or the retirement plan prohibited an oral agreement between the firm and the partner taking early retirement allowing for the payment of SRPs. One Justice dissented, and would have affirmed the trial court.

The Appellate Division granted defendant leave to appeal, and we now reverse the order of the Appellate Division, insofar as appealed from, and reinstate the order of Supreme Court dismissing the complaint.

The statute of frauds, as incorporated in section 5-701 (a) (1) of the General Obligations Law, provides that an agreement is void if it is not in writing and “subscribed by the party to be charged therewith” when the agreement “[b]y its terms is not to be performed within one year from the making thereof.” The statute of frauds was intended to prevent “fraud in the proving of certain legal transactions particularly susceptible to deception, mistake and perjury” (D & N Boening, Inc. v Kirsch Beverages, Inc., 63 NY2d 449, 453 [1984]). Because memories fail over time, the statute requires a written contract for an agreement that is not to be performed within one year of its making. In order to remove an agreement from the application of the statute of frauds, both parties must be able to complete their performance of the contract within one year (see Cron v Hargro Fabrics, 91 NY2d 362, 367-368 [1998]; Meyers v Waverly Fabrics, 65 NY2d 75, 79 [1985]). Here, it is the firm’s alleged obligation to make payments beginning in the fifth year after plaintiffs retirement and ending with his death that brings the agreement within the parameters of the statute of frauds.

In this case, plaintiff concedes that no written agreement exists between the parties entitling him to SRPs. Nor does he dispute that such payments were not to begin until five years after his retirement. However, relying on Kane v Rodgers (21 AD2d 773 [1964], affd 15 NY2d 544 [1964]), plaintiff argues that the oral agreement is not barred by the statute of frauds because the payment of SRPs concerns only the enforcement of plaintiffs existing rights under the retirement plan.

In Kane, plaintiffs claimed they had an oral agency agreement with the defendants who, as agents of plaintiffs, had entered into written agreements with another defendant, Pisa, for the transfer of stock. Plaintiffs, as principals, thus claimed rights under the written agreements although they were not named in the agreements. Pisa alleged that the statute of frauds barred the claim, because his obligation to perform continued for more than one year. The Court held, and this Court affirmed, that the fact that the transfer of the stock was to take place over a period in excess of one year did not bring the oral agreement establishing the agency relationship within the statute of frauds (21 AD2d 773 [1964]). The oral agreement was fully capable of being performed within one year. The transfer of the stock, however, concerned only the enforcement of the plaintiffs’ rights under the written agreement.

Here, plaintiff argues that this case is analogous to the situation presented in Kane. According to him, “[t]he oral agreement gives [plaintiff] the status of Early Retirement at the Firm’s request under the Firm’s written Retirement Plan. That status entitles [plaintiff] to certain benefits under the Plan, including the right to SRPs. As in Kane, it does not matter for purposes of the statute of frauds that those benefits are to be performed for more than one year, because that performance is governed entirely by a written agreement—which makes the statute of frauds irrelevant and inapplicable.”

We disagree. In Kane, the acts to be performed beyond a year concerned enforcement of plaintiffs’ rights under the written agreement, not the oral agency agreement. Here, plaintiff has no right to SRPs under the written partnership documents, and his claim of entitlement to SRPs does not flow from the oral agreement giving him the status of early retired partner. As previously noted, the benefits to which an early retired partner is entitled under the retirement plan are significantly less than those available to a partner taking normal or mandatory retirement. Generally, a partner taking early retirement is not entitled to SRPs. Under the partnership agreement, an early retired partner may receive additional payments, including SRPs, if the Executive Committee chooses to enter into a written agreement authorizing such payments. Here, there was no such written agreement. Kane, thus, is inapplicable.

Under the retirement plan, a partner taking early retirement is not entitled to receive SRPs unless the early retirement was made at the specific written request of the Executive Committee. While the Executive Committee here asked plaintiff to withdraw from the firm, that request was never made in writing. Therefore, plaintiffs change of status from partner to early retired partner (at the oral request of the firm) did not entitle him to SRPs under either the retirement plan or the partnership agreement. Accordingly, plaintiffs claim of entitlement to SRPs is based not on the Executive Committee’s oral request for him to take early retirement, but on a separate oral promise to provide monetary benefits in addition to those normally provided to early retired partners. In order for plaintiff to enforce this alleged promise of SRPs, the performance of which could not possibly have been completed within one year of the agreement, it was necessary that the agreement be reduced to writing and subscribed by the firm’s representative. In the absence of such a writing, the statute of frauds bars plaintiffs claim.

Finally, the Appellate Division determined that the parties had orally agreed that in exchange for plaintiffs departure from the firm, he would be “deemed to have taken early retirement at the specific written request of the executive committee.” (1 AD3d at 228-229.) However, the complaint states only that plaintiff was told that if he were to withdraw from the firm, he would be treated as taking early retirement at the firm’s request. Nothing in the complaint alleges that the firm’s request for plaintiffs retirement was to be deemed to have been made in writing. Moreover, we conclude that the Appellate Division’s theory that the parties could orally “deem” the existence of a written request is unpersuasive. Here, there was no written request for plaintiffs retirement, and without such a writing, plaintiff’s status was merely one of an early retired partner. Thus, plaintiffs change of status did not entitle him to receive SRPs under the retirement plan. Such an entitlement must have been the result of an additional promise, and in order to satisfy the statute of frauds, the terms of that agreement must have been in writing.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the order of Supreme Court reinstated and the certified question answered in the negative.

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

Order, insofar as appealed from, reversed, etc.

      . We have also been asked to decide whether the complaint should be dismissed based on the plain language of the firm’s retirement plan and partnership agreement. However, we need not reach this issue because we conclude that the statute of frauds bars plaintiffs claims.

      . Plaintiff asserts that various documents prepared by the firm sufficiently satisfied the writing requirement of the statute of frauds, including his change of status form designating him a senior counsel, a letter from the firm’s business administrator incorporating the “Rogers & Wells Benefit Plans Guide for Partners,” a handwritten note prepared by the firm’s outside actuary and a memorandum from the firm’s controller. None of these documents, however, satisfy the statute of frauds. Neither the change of status form nor the letter from the business administrator, incorporating the firm’s benefit guide, makes any reference to plaintiffs entitlement to SRPs. In addition, the note from the actuary cannot satisfy the statute of frauds because the firm did not prepare it. Finally, the memorandum prepared by the firm’s controller merely reports the calculations of the outside actuary. It does not state that the firm agreed to pay SRPs to plaintiff. More importantly, the memorandum was not signed by anyone with authority to do so on behalf of the firm.