author: Wilson, J. Chief Judge DiFiore

text:
    [80 NE3d 982, 58 NYS3d 236]
    In the Matter of Tony Avella et al., Respondents, v City of New York et al., Respondents, and Queens Development Group, LLC, et al., Appellants.
    Argued April 25, 2017;
    decided June 6, 2017

      POINTS OF COUNSEL

      Gibson, Dunn & Crutcher LLP, New York City (Caitlin J. Halligan of counsel), Skadden, Arps, Slate, Meagher & Flom LLP, New York City (Jonathan Frank of counsel), and Fox Rothschild LLP, New York City (Karen Binder of counsel), for appellants.

      Zachary W. Carter, Corporation Counsel, New York City (Richard P. Dearing and Michael Pastor of counsel), for City of New York and others, respondents.

      John R. Low-Beer, Brooklyn and Law Office of Lorna Goodman, New York City (Lorna B. Goodman of counsel), for Tony Avella and others, respondents.

      Eric T. Schneiderman, Attorney General, New York City (Ani-sha S. Dasgupta, Barbara D. Underwood and Andrew Rhys Davies of counsel), for Attorney General of the State of New York, amicus curiae.

      Albert K. Butzel Law Office, New York City (.Albert K. Butzel of counsel), and Jonathan L. Geballe, New York City, for Natural Resources Defense Council and others, amicus curiae.
   OPINION OF THE COURT

Wilson, J.

Plaintiffs — a state senator, not-for-profit organizations, businesses, taxpayers, and users of Flushing Meadows Park, brought this hybrid CPLR article 78 proceeding and declaratory judgment action in Supreme Court seeking to enjoin the proposed development of parkland in Queens. The proposed development, “Willets West,” involves the construction of a shopping mall and movie theater on Citi Field’s parking lot, where Shea Stadium once stood.

Following New York’s loss of both the Dodgers and Giants, Mayor Wagner, determined that New York City should have a National League Team, formed a Baseball Committee, led by William Shea, to work with Major League Baseball and others to obtain an expansion franchise for New York City. Major League Baseball approved the issuance of a franchise to the New York Metropolitan Baseball Club, conditioned upon the club’s ability to secure the rights to use of a stadium that met League specifications (see Off of Mayor, Supp Mem in Support, Bill Jacket, L 1961, ch 729 at 41). In 1961, the state legislature enacted a law providing for the financing and use of a municipal baseball stadium within Flushing Meadows Park, later named Shea Stadium. As the State Department of Commerce noted in a memorandum supporting the bill, “[t]h[e] legislation [wa]s needed in order to get a second major league baseball team in New York City” (Bill Jacket, L 1961, ch 729 at 15). Shea Stadium was home to the New York Mets for nearly 50 years, before it was demolished in 2008 and replaced with a new stadium, Citi Field.

To the east of the parkland is an area known as Willets Point. As the Appellate Division noted, and as the parties agree, “Wil-lets Point is a 61-acre area that has long been considered by the City to be blighted. Indeed, Willets Point has no sewers, sidewalks or streetlights, is replete with potholed and rutted streets, and is prone to flooding” (131 AD3d 77, 78 [1st Dept 2015]). Prior proposals to remediate and develop Willets Point have foundered.

In response to the City’s request for proposals, in 2011, defendant Queens Development Group, LLC (QDG), proposed a two-phase project for developing Willets Point. The current Willets Point Plan calls for construction, in several staged phases, of retail space, a hotel, an outdoor space, a public school, and affordable housing in the Willets Point neighborhood, and the construction of a large-scale retail complex on the parkland of Willets West. QDG included Willets West in the development proposal under the theory that “the creation of a retail and entertainment center at Willets West w[ould] spur a critical perception change of Willets Point, establishing a sense of place and making it a destination where people want to live, work, and visit.”

The phases of the planned development project are as follows: Phase 1A, which was set to begin in 2015, included the construction of Willets West. That phase calls for a retail mall to be built on parkland — which is currently Citi Field’s parking lot — and would include over 200 retail stores and restaurants, as well as a movie theater. Phase 1A would also include the installation of sewage systems, roads and ramps, and a hotel in Willets Point. Phase IB, expected to begin in 2026, would include construction of 2,490 housing units (35% of which would be affordable), a public school, and open outdoor space. Under the agreement between QDG and the New York City Economic Development Corporation, QDG could avoid phase IB by paying $35 million. The City approved QDG’s proposal in May of 2012.

Thereafter, plaintiffs commenced the instant action against defendants including, among others, the City, various municipal officers and entities, and QDG, alleging that because the Willets West development was located within parkland, the public trust doctrine required legislative authorization, which had not been granted. Supreme Court denied the petition for declaratory and injunctive relief and dismissed the proceeding. The Appellate Division unanimously reversed and granted the petition “to the extent of declaring that construction of Willets West on City parkland without the authorization of the state legislature violates the public trust doctrine, and enjoining any further steps toward its construction” (131 AD3d at 87). We granted defendant QDG and related entities leave to appeal (26 NY3d 912 [2015] ). We now affirm.

I.

There is no dispute that the Willets West development is proposed to be constructed entirely on city parkland. The public trust doctrine is ancient and firmly established in our precedent. In Brooklyn Park Commrs. v Armstrong we held that, when a municipality takes land “for the public use as a park, . . . [it holds] it in trust for that purpose . . . Receiving the title in trust for an especial public use, [the municipality] could not convey [the land] without the sanction of the legislature” (45 NY 234, 243 [1871]). Likewise, in Matter of Boston & Albany R.R. Co., we held that parklands held by a village were held “upon a special trust and for public use. The village could not dispose of them or divert them from the purpose to which they were dedicated” (53 NY 574, 576 [1873]). Summarizing the long-standing history of the public trust doctrine in Friends of Van Cortlandt Park v City of New York, we explained that “our courts have time and again reaffirmed the principle that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes” (95 NY2d 623, 630 [2001]).

Only the state legislature has the power to alienate parkland (or other lands held in the public trust) for purposes other than those for which they have been designated. The parties here agree with that proposition. Even though a municipality may own the land dedicated to public use, “the title of the municipal corporation to the public streets [is] held in trust for the public and the power to regulate those uses [is] vested solely in the legislature” (Potter v Collis, 156 NY 16, 30 [1898]).

The approval of the legislature in alienating parkland must be “plainly conferred” through the “direct and specific approval of the State Legislature” (Friends of Van Cortlandt Park, 95 NY2d at 632 [internal quotation marks and citation omitted]; see Capruso v Village of Kings Point, 23 NY3d 631, 639 [2014]; Williams v Gallatin, 229 NY 248, 253 [1920]). Although we have often articulated that principle in the context of an initial alienation of lands held in the public trust (see e.g. Friends of Van Cortlandt Park, 95 NY2d at 631), the principle also requires that a proposed use of parkland falls within the scope of legislative authorization once granted. For example, in Potter v Collis, we held that, although the legislature’s General Railroad Act of 1850 authorized municipalities to assent to the construction of railroads, that legislative authorization was not “sufficient to authorize a city street railroad,” and the City’s resolution granting a third party authorization to construct a railroad on public streets was therefore invalid under the public trust doctrine (156 NY at 30). As we held in Matter of City of New York, which involved New York City’s right to alienate piers and wharves held in the public trust, “[w]hen there is a fair, reasonable and substantial doubt concerning the existence of an alleged power in a municipality, the power should be denied” (228 NY 140, 152 [1920]). We reiterated that rule in Lake George Steamboat Co. v Blais, in which we said, “legislative sanction must be clear and certain to permit a municipality to lease public property for private purposes” (30 NY2d 48, 52 [1972]).

Keeping in mind that the current proposed alienation must plainly fall within the scope of the legislative direction authorizing alienation of the parklands at issue, we now turn to an examination of the statute relied on by defendants for the legislative authorization of Willets West.

IL

Defendants contend that the 1961 legislation concerning Shea Stadium, which the City constructed on parkland, constitutes legislative authorization for the Willets West development. That legislation, codified in section 18-118 of the Administrative Code of the City of New York, is titled: “Renting of stadium in Flushing Meadow park; exemption from down payment requirements.” Section 18-118 (a) provides, as relevant here:

“a. Notwithstanding any other provision of law, general, special or local, the city ... is hereby authorized and empowered from time to time to enter into contracts, leases or rental agreements with, or grant licenses, permits, concessions or other authorizations to, any person or persons, upon such terms and conditions, for such consideration, and for such term of duration as may be agreed upon by the city and such person or persons, whereby such person or persons are granted the right, for any purpose or purposes referred to in subdivision b of this section, to use, occupy or carry on activities in, the whole or any part of a stadium, with appurtenant grounds, parking areas and other facilities, to be constructed by the city on certain tracts of land described in subdivision c of this section, being a part of Flushing Meadow park . . . Prior to or after the expiration or termination of the terms of duration of any contracts, leases, rental agreements, licenses, permits, concessions or other authorizations entered into or granted pursuant to the provisions of this subdivision and subdivision b of this section, the city, in accordance with the requirements and conditions of this subdivision and subdivision b of this section, may from time to time enter into amended, new, additional or further contracts, leases or rental agreements with, and grant new, additional or further licenses, permits, concessions or other authorizations to, the same or any other person or persons for any purpose or purposes referred to in subdivision b of this section.”

Section 18-118 (b), in turn, provides:

“b. Any contract, lease, rental agreement, license, permit, concession or other authorization referred to in subdivision a of this section may grant to the person or persons contracting with the city thereunder, the right to use, occupy or carry on activities in, the whole or any part of such stadium, grounds, parking areas and other facilities, (1) for any purpose or purposes which is of such a nature as to furnish to, or foster or promote among, or provide for the benefit of, the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce, including professional, amateur and scholastic sports and athletic events, theatrical, musical or other entertainment presentations, and meetings, assemblages, conventions and exhibitions for any purpose, including meetings, assemblages, conventions and exhibitions held for business or trade purposes, and other events of civic, community and general public interest, and/or (2) for any business or commercial purpose which aids in the financing of the construction and operation of such stadium, grounds, parking areas and facilities, and any additions, alterations or improvements thereto, or to the equipment thereof, and which does not interfere with the accomplishment of the purposes referred to in paragraph one of this subdivision. It is hereby declared that all of the purposes referred to in this subdivision are for the benefit of the people of the city and for the improvement of their health, welfare, recreation and prosperity, for the promotion of competitive sports for youth and the prevention of juvenile delinquency, and for the improvement of trade and commerce, and are hereby declared to be public purposes.”

When interpreting a statute, “our primary consideration is to discern and give effect to the Legislature’s intention” (Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120 [2012]). The text of a statute is the “clearest indicator” of such legislative intent and “courts should construe unambiguous language to give effect to its plain meaning” (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). We have also previously instructed that “[i]t is an accepted rule that all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 515 [1991]). Furthermore, “a statute . . . must be construed as a whole and ... its various sections must be considered together and with reference to each other” (Matter of New York County Lawyers’ Assn, v Bloomberg, 19 NY3d 712, 721 [2012]). Defendants’ argument disregards these fundamental rules of statutory interpretation.

Beginning with the plain language, subdivision (a) of section 18-118 grants the City the right to “enter into contracts, leases or rental agreements,” etc., for persons wishing “to use, occupy or carry on activities in, the whole or any part of a stadium, with appurtenant grounds, parking areas and other facilities” (emphasis added). Nothing in that language authorizes the construction of a shopping mall or movie theater; rather, it authorizes the City to enter into agreements permitting others to use the stadium and its appurtenant facilities. The term “appurtenant” means “[a]nnexed to a more important thing,” (Black’s Law Dictionary [10th ed 2014], appurtenant); or “constituting a legal accompaniment” or “auxiliary, accessory” to something else (Merriam-Webster Online Dictionary, appurtenant [https://www.merriam-webster.com/dictionary/ appurtenant] [accessed May 17, 2017]). Accordingly, the clear implication of the reference to “appurtenant . . . facilities” is that any such facilities must be related to, part of, belonging to, or serving some purpose for, the stadium itself.

Defendants point to the last sentence of subdivision (a), authorizing “the city, in accordance with the requirements and conditions of this subdivision and subdivision b of this section, [to] . . . enter into amended, new, additional or further contracts, leases or rental agreements . . . for any purpose or purposes referred to in subdivision b of this section,” arguing that subdivision (b) specifically authorizes this type of development on the parkland because one of the enumerated uses allowed is the “improvement of trade and commerce” (Administrative Code of City of NY § 18-118 [a], [b] [1]). That argument is also unpersuasive. The purposes enumerated in the legislation are consistent with typical uses of a park and/or stadium, including “scholastic sports and athletic events,” “theatrical, musical or other entertainment presentations,” and “meetings, assemblages, conventions and exhibitions.”

Subdivision (b), like subdivision (a), is limited to agreements the City might enter into for “the right to use, occupy or carry on activities in, the whole or any part of such stadium, grounds, parking areas and other facilities.” Here, “other facilities” in subdivision (b) cannot be divorced from its statutory context: “appurtenant grounds, parking areas and other facilities, to be constructed by the city,” to be read as a legislative grant to authorize the private construction of anything deemed by the City to improve trade and commerce. Just as a general statute authorizing municipalities to construct railroads on lands held in the public trust did not authorize New York City to construct a street railroad, the 1961 legislation does not authorize the construction of a retail complex and movie theater.

Reading “improvement of trade and commerce” as the City suggests — namely, as authorization for the construction of anything that might improve trade or commerce — would lead to an absurd result. The purposes enumerated in (b) (1) could not be read to exclude any use of the parkland, if understood to mean that the land can be used for any purpose at all related to the “improvement of trade and commerce” or “education,” “amusement,” “cultural development” or “enlightenment” (Administrative Code of City of NY § 18-118 [b] [1]). For example, defendants’ interpretation of the statute would permit the conversion of the parkland into a second Times Square or Wall Street, which is decidedly not evidenced in the statutory language. Moreover, had the legislature truly intended to authorize any use of the parkland, including private for-profit business enterprises, those portions of the statute describing the authorized uses would be rendered superfluous.

Defendants point to the differences between the 1961 legislation and the 2005 legislation authorizing the development of the new Yankee Stadium, arguing that when the legislature wanted to restrict its authorization to “development of a baseball stadium,” it knew how to do so. That argument misses the mark for several reasons.

First, that the legislature used different words in 2005 does not shed any real light on what the 1961 legislature meant. Second, the language cited by defendants from the 2005 Yankee Stadium legislation, restricting the legislative grant to “contracts, leases or rental agreements for a term not to exceed ninety-nine years, with the New York Yankees Limited Partnership, its affiliate and/or another entity or entities . . . for the purpose of developing, maintaining and operating thereon a professional baseball stadium and related facilities” would have been inapposite as to Shea Stadium, which was conceived as a multipurpose stadium that the City was free to lease to others (and which in fact housed the New York Jets football team from 1964-1983) (L 2005, ch 238, § 2 [a]- [b] [emphasis in defendants’ brief]).

Defendants also contend that, whereas the 2005 Yankee Stadium legislation limits the City’s authority to “stadium and related facilities,” the 1961 legislation does not. However, the 1961 legislation limits the City’s legislation to “appurtenant grounds, parking areas and other facilities,” and we perceive no difference between “appurtenant” and “stadium related” in the context of these statutes.

III.

The plain language of the statute does not authorize the proposed construction, and we therefore need not consider the legislative history. However, that history also unambiguously demonstrates that the legislature did not authorize the City to do more than enter into agreements for use of the stadium for public — not commercial — purposes and avoid certain restrictions to ease the financial burden on the City of constructing the stadium.

As a starting point, the title of the statute, “Renting of a stadium in Flushing Meadow park; exemption from down payment requirements,” suggests nothing at all about legislative authorization for anything other than a stadium and, indeed, pertains only to the renting of the stadium and exemption from statutory requirements that would have required a down payment. Although the title of the legislation may not “trump the clear language of the statute,” it “may help in ascertaining the [legislative] intent” (Matter of Suffolk Regional Off-Track Betting Corp. v New York State Racing & Wagering Bd., 11 NY3d 559, 571 [2008]; see McKinney’s Cons Laws of NY, Book 1, Statutes § 123).

Consistent with the bill’s title, the legislative history demonstrates that the statute was intended to authorize the lease, rental or licensing of the stadium, not the construction of unrelated facilities. A Memorandum in Support of the bill from the Mayor’s Office wrote that the bill

“would authorize the City ... to lease or rent, from time to time, for customary municipal stadium purposes, the 55,000-seat stadium with 5,500 parking places . . . proposed to be constructed by the City in Flushing Meadow Park, Borough of Queens, upon such terms and conditions ... as may be agreed upon by the City and the persons leasing or renting the stadium” (Bill Jacket, L 1961, ch 729 at 32).

The City did not explain the need for the legislation in terms of authorization for the construction of anything at all — even a stadium; instead, the memorandum explained:

“[s]ince the stadium is to be located on park lands, and since such lands are inalienable under the provisions of § 383 of the City Charter, the City will be unable to lease or rent the stadium for customary stadium purposes . . . without authorization by the Legislature. Moreover, without such authorization, the City will be unable to operate the stadium suitably as a revenue-producing project” (id. at 33 [emphasis added]).

Thus, the City requested the legislation to grant it the right to rent the stadium to private entities, not to construct new and unrelated facilities for private business purposes.

In Williams v Gallatin, we noted that “park purposes” may include “playing grounds,” which “contribute to the use and enjoyment of the park” (229 NY 248, 253-254 [1920]). A municipality may, without legislative authorization, make improvements to a park that are consistent with its status as “a pleasure ground set apart for recreation of the public, to promote its health and enjoyment. It need not and should not be a mere field or open space” (id. [citation omitted]). Our observation that municipalities may improve parks without legislative authorization by, among other things, the construction of playing fields, is consistent with the statutory language and legislative history of the 1961 legislation at issue here. The City explained:

“This bill would confer upon the City the leasing and renting powers necessary to make the stadium available for professional, amateur and scholastic sports and athletic events and entertainment presentations, and the holding of meetings, conventions, exhibitions and events of civic, cultural and community interest. Such powers are essential to enable the City to cooperate in the establishment of a new National League baseball team in the City, and to operate the stadium as a revenue-producing project which, as is explained below, will be substantially self-sustaining” (Off of Mayor, Supp Mem in Support, Bill Jacket, L 1961, ch 729 at 38).

Thus, the City sought legislative approval because rental — not construction — of the stadium constituted an alienation. Legislative authorization to rent Shea Stadium and its grounds to private parties cannot, under our long-standing construction of the public trust doctrine, constitute legislative authorization to build a shopping mall or movie theater.

The budget report on the bill stated that “[t]he bill grants statutory authority for the City to lease or rent the stadium which could not otherwise be leased or rented because of its location on inalienable park lands” (Bill Jacket, L 1961, ch 729 at 27). A report on the bill from the Department of Audit and Control, addressed to the Governor, describes each subsection of the bill: paragraph (a), it says, “authorizes the Commissioner of Parks, with the approval of the Board of Estimate, to enter into contracts, leases or rental agreements . . . , or grant licenses, permits, concessions or other authorizations for the use of the whole or any part of the new stadium” (Bill Jacket, L 1961, ch 729 at 28). The report then writes that “Paragraph b describes the purposes for which such use may be granted” (id.).

The statutory language and legislative history demonstrate that the legislation did not authorize further developments on the tract of parkland but, rather, ensured that the City was authorized to accommodate other public uses of the stadium and appurtenant facilities.

IV.

In sum, the text of the statute and its legislative history flatly refute the proposition that the legislature granted the City the authority to construct a development such as Willets West in Flushing Meadows Park.

We acknowledge that the remediation of Willets Point is a laudable goal. Defendants and various amici dedicate substantial portions of their briefs to the propositions that the Willets West development would immensely benefit the people of New York City, by transforming the area into a new, vibrant community, and that the present plan might be the only means to accomplish that transformation. Those contentions, however, have no place in our consideration of whether the legislature granted authorization for the development of Willets West on land held in the public trust. Of course, the legislature remains free to alienate all or part of the parkland for whatever purposes it sees fit, but it must do so through direct and specific legislation that expressly confers the desired alienation.

Plaintiffs’ additional claims are rendered academic by our decision. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge DiFiore

(dissenting). Under the public trust doctrine, parkland in our State is dedicated to public use, and can only be alienated for non-park purposes if expressly authorized by the state legislature. Our Court’s jurisprudence demonstrates unwavering support for the public trust doctrine. In such cases as Williams v Gallatin (229 NY 248 [1920]) and Friends of Van Cortlandt Park v City of New York (95 NY2d 623 [2001]), we held that the contemplated use of parkland for other than a “park use” violated the public trust doctrine. Notably, in those cases, the legislature had not expressly authorized non-park use, and it was up to us to uphold the public trust and determine “what is and is not a park purpose” (Union Sq. Park Community Coalition, Inc. v New York City Dept. of Parks & Recreation, 22 NY3d 648, 655 [2014]).

This case is different. Here, the legislature has spoken and directly and specifically authorized non-park uses of the property, as codified in Administrative Code of the City of New York § 18-118. Indeed, the specific parcel at issue, Willets West, presently covered in asphalt, is being used as a parking lot. Once the state legislature alienates parkland for non-park purposes and expressly authorizes development on parkland, as it has done here, our only role is to ensure that the proposed development comports with the authorization expressed in the statute. We may not second-guess the legislature and such matters as the utility of the development, its aesthetics, or its benefit to the public are beyond our review. Rather, the only issue is the scope of the legislature’s authorization in Administrative Code § 18-118 and whether the use contemplated falls within that authorization — a question of statutory interpretation.

To resolve this issue, we rely first and foremost on the plain language of the statute and canons of statutory interpretation. In my view, the statute expressly authorizes the proposed development of Willets West. Because I conclude that the development is specifically authorized by Administrative Code § 18-118 and would promote the specific public purposes set forth in the statute, I dissent from the majority view that the proposed development of Willets West, initiated by the City of New York and promoted and supported by the City and New York State, violates the public trust doctrine. I would therefore remit the case to the Appellate Division to consider the three additional issues raised in this appeal, but not addressed by the Appellate Division, which concern the applicability of land use regulations and zoning resolutions, and whether formal City Council approval is required for the plan to proceed.

L

In 1961, the state legislature enacted Administrative Code § 18-118, the law that led to the construction of Shea Stadium. This law also authorized the use of the adjacent parkland for a broad array of public purposes, including among others, to promote recreation, entertainment, amusement, and cultural betterment, and to improve trade and commerce. This legislation expressly authorized the entire alienated area, consisting of 77 acres, for non-park use.

Immediately to the east of the alienated parkland lies Wil-lets Point, a blighted and contaminated tract of land in Queens. This toxic wasteland of 61 acres is known as the “Iron Triangle” or, as F. Scott Fitzgerald described it 92 years ago in The Great Gatsby, the “Valley of Ashes.” Willets Point is not parkland. Beginning in the 1960s, the decade when Administrative Code § 18-118 was enacted and Shea Stadium was built, City officials tried and failed to redevelop the area. Recent environmental studies show likely contamination in nearly every part of Willets Point and the groundwater beneath it. The risks to public health from this contamination are exacerbated by Wil-lets Point’s proximity to the Flushing River, in an area susceptible to constant flooding that lacks basic infrastructure, including sewers and storm drains.

In 2008, the City proposed a development plan that included remediation of the environmental waste in the land, new sewers and roads, and construction of a mixed-use community at Willets Point consisting of affordable housing, a school, a hotel, and several acres of public open space. The plan, however, was not economically feasible and was abandoned. In 2011, the plan was revised. This time the City partnered with the appellants, and included, in addition to the plan for Willets Point, a proposed entertainment and retail center at a neighboring site known as Willets West, where Shea Stadium once stood, and where asphalt parking lots for Citi Field are now located. The Willets West development would include, in addition to restaurants and shops, public programming spaces, meeting places, and a rooftop farm for educational purposes. According to the plan, the development of Willets West would facilitate the remediation and revitalization of Willets Point.

Petitioners commenced a hybrid CPLR article 78 proceeding and declaratory judgment action in Supreme Court, claiming that the Willets West portion of the project violated the public trust doctrine because it was not authorized by state legislation, and that the Willets West component of the development plan requires further formal approval by the City Council.

Supreme Court denied the petition for declaratory and injunctive relief and dismissed the proceeding. The court reviewed the statutory language in Administrative Code § 18-118 and determined that rather than authorizing the use of the property for a stadium alone, the legislature considered "alternate uses of the property” that would “benefit the public.” The court held that the public trust doctrine was not violated because “use of the property for a shopping mall [would] serve the public purpose of improving trade or commerce” — one of the purposes specified in the statute — and that the intended use would likewise “serve the public purpose of ultimately altering the blighted Willets Point into a mixed use community.” Supreme Court further held that development of Wil-lets West is not subject to the City’s Uniform Land Use and Review Procedure, and that the City’s land use determinations were not arbitrary or capricious.

The Appellate Division unanimously reversed and granted the petition “to the extent of declaring that construction of Wil-lets West on City parkland without the authorization of the state legislature violates the public trust doctrine” (Matter of Avella v City of New York, 131 AD3d 77, 86-87 [1st Dept 2015]). The Appellate Division held “that the overriding context of Administrative Code § 18-118 concerns the stadium to be built” and “[t]here is simply no basis to interpret the statute as authorizing the construction of another structure that has no natural connection to a stadium” (id. at 84-85). The Court enjoined any further steps toward the construction of Willets West, and did not address the other land use issues.

II.

The majority states, “[t]here is no dispute that the Willets West development is proposed to be constructed entirely on city parkland” (majority op at 431). That is not the case. The proposed Willets West development would be constructed entirely on alienated parkland. When the state legislature codified Administrative Code § 18-118 in 1961, that 77 acre tract in Flushing Meadows Park was alienated and designated to further the non-park purposes specifically set forth in the statute.

“[T]he starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). A plain reading of Administrative Code § 18-118 shows that the legislature alienated the parkland at issue and authorized the City to enter into leases and other agreements with third parties for a variety of specific purposes, each of which it expressly declared to be a public purpose. Subdivision (a) of Administrative Code § 18-118 sets forth the City’s authority to enter into agreements for use of the alienated parkland and specifies that the alienated parkland includes not only the stadium but appurtenant grounds, parking areas and other facilities. Subdivision (b) lists the purposes for which that alienated property may be used. Nowhere does the statute limit authorized uses to those that “relate to the stadium itself and the naturally expected uses of a stadium,” as the Appellate Division held (131 AD3d at 86).

In Friends of Van Cortlandt Park, the legislature had not authorized non-park use for the disputed parcel, and the question was whether any legislative approval was required in the first place. In that case, we declared that parkland may be alienated for non-park purposes when there is “ ‘direct and specific approval of the State Legislature, plainly conferred’ ” (95 NY2d at 632 [citation omitted]).

Here, we have the legislature’s categorical approval. In subdivision (a) of the statute, the legislature directly authorized the area which includes Willets West to be used for non-park purposes; in subdivision (b), the legislature specifically listed those purposes. The plain language of these provisions makes clear that the development of Willets West, as summarized above, is well within this statutory authorization. The majority states, “[o]f course, the legislature remains free to alienate all or part of the parkland for whatever purposes it sees fit, but it must do so through direct and specific legislation that expressly confers the desired alienation” (majority op at 440). That is precisely what the legislature has done.

Administrative Code § 18-118 (a) begins by providing that the City may “from time to time” enter into agreements authorizing third parties “to use, occupy or carry on activities in, the whole or any part of a stadium, with appurtenant grounds, parking areas and other facilities, to be constructed by the city” (Administrative Code § 18-118 [a]). As of 1961, when Administrative Code § 18-118 was enacted, Black’s Law Dictionary defined “appurtenant” as “[b]elonging to; accessory or incident to; adjunct, appended, or annexed to” (Black’s Law Dictionary 133 [4th ed 1951]). “Appurtenant grounds” in the statute was plainly a reference to the “adjunct” or additional acreage being alienated that would not be used for the stadium itself (see id. at 64 [defining “adjunct” as “(s)omething added to another”]).

The second sentence of subdivision (a) specifies that “[p]rior to or after the expiration or termination” of the agreements referenced in the first sentence, the City may “enter into amended, new, additional or further” agreements or authorizations “for any purpose or purposes referred to in subdivision b” (Administrative Code § 18-118 [a] [emphasis added]). The majority would limit the second sentence of section 18-118 (a) to agreements that relate solely to the stadium. That, however, is not what it says. Moreover, if the second sentence of subdivision (a) merely allowed the City to enter into agreements that relate solely to a stadium, then this second sentence is superfluous since the first sentence of subdivision (a) already permits the City to enter into such agreements “from time to time.”

The legislature concludes subdivision (a) by specifically limiting the purposes for which the City may lease the stadium, grounds, parking areas and facilities, to “any purpose or purposes referred to in subdivision b.” Subdivision (b) (1), in turn, states that the City may enter into any agreements, leases, permits, contracts, or other authorizations “for any purpose or purposes which is of such a nature as to . . . provide for the benefit of, the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce” (id. § 18-118 [b]).

The Willets West center would include retail shops, a movie theater, restaurants, a food court, public programming spaces, and a rooftop farm. These uses fit squarely within the specific purposes set out in subdivision (b) (1). Movie theaters and restaurants provide amusement and gathering places for patrons. Like spectator sports, films engage, inspire, and entertain viewers, and have the added potential to expose audiences to other cultures and viewpoints, promoting cultural development and betterment. Public programming spaces are available for art exhibitions and performances and meeting places provide areas for education and community development. Likewise, the rooftop farm would be available to schools and other organizations so they may learn about urban farming and the environment.

Subdivision (b) (1) also sets out, as another authorized purpose, “[the] improvement of trade and commerce”— something that a shopping center in this blighted area would promote. Indeed, although the legislature could have omitted the purpose of “improvement of trade and commerce” from the list of specifically authorized purposes in favor of loftier intellectual or cultural purposes, it did not. The notion that the specific reference to “improvement of trade and commerce” nonetheless excludes a shopping center is as unsupportable as the notion that “entertainment” excludes a movie theater or that “cultural development” excludes exhibition or meeting spaces. Indeed, the development plan at issue would promote all of these specific statutorily authorized purposes.

Subdivision (b) (2) provides independent authority for another purpose, separate from those in subdivision (b) (1): to permit the land to be used “for any business or commercial purpose which aids in the financing of the construction and operation of [the] stadium, grounds, parking areas and facilities” {id. § 18-118 [b] [2]).

The legislature’s inclusion of subdivision (b) (2) likewise supports reversal of the Appellate Division order for two independent reasons. First, if the legislature intended to authorize uses only “relate [d] to the stadium itself and the naturally expected uses of a stadium” (Avella, 131 AD3d at 86), the expansive public purposes specified in subdivision (b) (1) would be wholly unnecessary. In the same vein, if the broad purposes named in subdivision (b) (1) intended to substantially limit the City’s authority to stadium-related uses, then subdivision (b) (2) would be superfluous because anything that aids in the financing of the construction and operation of the stadium necessarily relates to the stadium. Therefore, subdivision (b) (1) must permit uses of the alienated parkland that involve something other than a stadium.

Second, subdivision (b) (2) distinguishes between the “improvement of trade and commerce,” as stated in subdivision (b) (1), and “any business or commercial purpose which aids in the financing of the construction and operation of [the] stadium, grounds, parking areas and facilities.” Subdivision (b) (1) specifically authorizes uses that improve trade and commerce for the benefit of the people of the City. By contrast, minor commercial uses, such as individual food vendors and seasonal concession stands in the stadium, might not have an impact large enough to improve trade and commerce for the benefit of the people of the City. Nonetheless, if such concessions support the financing and operation of the stadium, its grounds, parking areas and facilities, and any additions thereto, they would be authorized by subdivision (b) (2). The inclusion of subdivision (b) (2) in the legislation does not mean that the statute only allows a business or commercial purpose that benefits the stadium or its grounds; rather, it carves out an exception that permits commercial and business uses of the property that are smaller in scale (and thus might not be deemed to “improve” trade and commerce) but are nevertheless authorized uses of the alienated land. Subdivision (b) (2) does not alter or qualify the purpose in (b) (1) that permits uses of the alienated property that will improve trade and commerce.

The legislature ended subdivision (b) by explaining, in direct and specific language, that

“all of the purposes referred to in this subdivision are for the benefit of the people of the city and for the improvement of their health, welfare, recreation and prosperity, for the promotion of competitive sports for youth and the prevention of juvenile delinquency, and for the improvement of trade and commerce, and are hereby declared to be public purposes” (Administrative Code § 18-118 [b]).

Although I have no doubt that the majority’s intention is to protect the public trust, the majority’s concern about undermining the public trust doctrine in this case is misplaced. Here, the legislature already decided to alienate the parkland at issue. The majority’s narrow reading of Administrative Code § 18-118 is principally derived from the statute’s title and immediate context — the construction of Shea Stadium — as opposed to the actual statutory language we are called upon to construe. The legislature sometimes speaks in broad terms and sometimes in targeted terms, but those distinctions have meaning, and it is this Court’s task to give effect to that meaning. Notwithstanding the broad, flexible, and expansive language embedded in this statute, the majority concludes that the authorization does not directly and specifically provide for the development of Willets West. Consequently, the majority’s implied holding is that the legislature must not only directly and specifically alienate parkland, but define the precise parameters of any development that may be built in the future. The necessary corollary of the majority’s decision is that the legislature may not alienate parkland for specific public purposes without the threat of the courts stepping in to further limit and circumscribe those purposes. This is a major departure from our precedent, and will limit the legislature’s flexibility to craft statutes that allow for future development. Furthermore, it is entirely consistent with the statutory scheme to allow future development of the land at issue. As appellants pointed out during argument, and respondents did not (and cannot) refute, of the 77 acres alienated by statute, only about 16 acres were used to construct Shea Stadium {see Administrative Code § 18-118 [c]). There is nothing in the statute to suggest that it was the legislature’s intent to allow 61 acres of alienated parkland to sit idle in perpetuity or, as they are now, covered in asphalt.

III.

While the text of a statute is always of prime importance, its legislative history may inform the analysis (see Nostrom v A.W. Chesterton Co., 15 NY3d 502, 507 [2010]). Here, the legislation’s bill jacket shows that the immediate context of the law concerned the construction and use of the stadium. Nonetheless, while the legislature’s primary objective in enacting the law was to authorize construction of Shea Stadium, the legislature chose to craft that authorization in broad terms: not only to allow use of the parkland for Shea Stadium, but to permit the City to enter into agreements and any other “authorizations” that would use the alienated parkland for several broad purposes. Thus, while the legislative history emphasizes the immediate objective of the statute, it is the plain meaning of the statutory language that should guide our interpretation today and it unequivocally permits further development to promote the listed purposes.

IV.

Finally, some historical context further supports reversal, as do the practical realities regarding stadiums. Although the Appellate Division concluded that “[t]here is simply no basis to interpret the statute as authorizing the construction of another structure that has no natural connection to a stadium” {Avella, 131 AD3d at 85), history suggests that shopping areas and public markets are frequently located alongside athletic stadiums. The largest and earliest stadium in ancient Rome, the Circus Maximus, demonstrates this fact. As early as the sixth century B.C., shops existed adjacent to the Circus Maximus to serve the needs of the spectators; similarly, when the Romans conquered the Greeks, they renovated the stadium at Olympia and built inns and shops in the area.

The practical realities regarding modern stadiums further support reversal as stadiums are frequently accompanied by malls or retail centers, adjacent to or near the sporting venues, to provide avenues for commerce and recreation that complement stadium attractions. Camden Yards in Baltimore, Gillette Stadium in Foxboro, Massachusetts, and Busch Stadium in St. Louis are all examples of the modern trend of using stadiums as hubs for economic activity. In fact, the author of an April 2017 article that discussed the evolution of stadium design over the last 40 years commented that “[f]rom pedestrian plazas to full-blown entertainment districts, the stadium projects of today are about much more than the game.” To be sure, Administrative Code § 18-118 envisioned that a stadium would be located on the parkland. But, as we have previously held, we should not assume that legislators intend “to confine the scope of their legislation to the present, and to exclude all consideration for the developments of the future” (Matter of Comptroller of City of N.Y. v Mayor of City of N.Y., 7 NY3d 256, 266 [2006], quoting Hudson Riv. Tel. Co. v Watervliet Turnpike & Ry. Co., 135 NY 393, 403-404 [1892]). The Appellate Division’s outdated and restrictive understanding of what is “natural[ly] connected]” to a stadium does the opposite, and should be rejected.

V.

Our Court’s fervent commitment to the public trust doctrine and our appreciation of natural parkland in our State is not undermined by a reversal in this case. The legislature expressly alienated the property at issue for non-park uses. More precisely, the legislature directly allowed for future development and use of this alienated parkland “for any purpose or purposes which is of such a nature as to furnish to, or foster or promote among, or provide for the benefit of, the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce” (Administrative Code § 18-118 [b] [1]). Permitting the Willets Point Plan to proceed certainly does not put parks elsewhere in our State at risk of being demolished and replaced with brick, mortar, and plastic. Instead, the proposed development has the potential to turn vacant lots into a vibrant community, transform parking lots into places of public use and enjoyment, and replace asphalt with hope and aspirations for the blighted community of Wil-lets Point.

In sum, the majority’s holding ignores the statute’s plain text. The majority’s narrow view that the statute authorizes only the construction of a stadium, or facilities directly related to a stadium, disregards the prescient and forward-looking nature of the statutory language. Willets West is designed to achieve the legislative objectives laid out expressly in the statute — improvement of trade and commerce and the promotion of recreation, entertainment, amusement, and cultural betterment. If permitted, the development will be enjoyed by those going to Citi Field, as well as others seeking recreation, food, shops, and entertainment. An afternoon at the ball game could become a day-long event, where families can shop, see a movie, and share a meal together. The New York State Legislature specifically allowed for this eventuality when it enacted the statute, and we should therefore find that the contemplated development of Willets West is an authorized use of this alienated parkland.

Accordingly, I dissent.

Judges Rivera, Stein, Fahey and Garcia concur; Chief Judge DiFiore dissents in an opinion.

Order affirmed, with costs.

      . QDG is a joint venture formed .by entities controlled by the Sterling Equities Associates, owner of the Mets, and The Related Companies, L.R, a real estate development firm.

      . The City did not seek leave to appeal in this case, but filed a brief in support of reversal.

      . Supreme Court relied on Murphy v Erie County (28 NY2d 80 [1971]) for the proposition that a “municipality may lease improvements to property to a private operator, on the condition that it serves a public purpose, and that ownership of the improvement is retained by the municipality.” In Murphy, the authorizing legislation, much like the statute here, allowed the county to “enter into contracts, leases, or rental agreements with, or grant licenses, permits, concessions, or other authorizations, to any person or persons.” We held: “Quite obviously, it was designed to give the county the broadest latitude possible in the operation of the stadium” {id. at 87). Nothing in Murphy suggests that a grant of legislative authority to lease a stadium located in parkland to a private business constitutes a legislative grant to allow private businesses to build unrelated commercial enterprises on the parkland.

      . On its face, the statute permits use of the stadium and facilities for, among other things, the improvement of trade and commerce. It does not permit, however, the construction of other facilities for the purpose of improving trade and commerce. Even if the statutory language were ambiguous, “Guided by the familiar canon of construction of noscitur a sociis, we ordinarily interpret the meaning of an ambiguous word in relation to the meanings of adjacent words” (Matter of Kese Indus. v Roslyn Torah Found., 15 NY3d 485, 491 [2010]; see State of New York v Mobil Oil Corp., 38 NY2d 460, 464 [1976]) and, following that canon, the phrase “improvement of trade and commerce” (Administrative Code of City of NY § 18-118 [b] [1]) — in light of the examples given and the other purposes listed in the statute — cannot reasonably be interpreted to encompass a private for-profit enterprise constructing an entirely new development on the parkland.

      . The incompatibility between defendants’ proposed use and the authorization provided by the statute is also illustrated by reference to subdivision (b) (2) of section 18-118. That subdivision authorizes leases for “any business or commercial purpose which aids in the financing of the construction and operation of such stadium, grounds, parking areas and facilities.” This plainly refers to private for-profit enterprises, but applies only where the purposes aid in the financing of the stadium, which compels the conclusion that “business or commercial purpose [s]” are not authorized where the businesses or commercial use does not aid in the financing of the stadium (Administrative Code of City of NY § 18-118 [b] [2]; see generally Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396, 404 [1984] [“specification of certain permitted activities . . . should be read as implicitly prohibiting other(s)” under doctrine of “inclusio unius est exclusio alterius”]).

      . Likewise, the bill jacket contains a telegram from William Shea to Governor Nelson Rockefeller, sent in anticipation of the legislation’s passage, which said, “the approval by the state legislature of the leasing of the stadium is our last step” (Bill Jacket, L 1961, ch 729 at 8-9). In a memorandum summarizing the bill, the New York State Department of Commerce wrote that its purpose was to amend the code “in relation to financing the construction of a stadium to be erected by the City of New York . . . and authorizing, in aid of such financing, the renting of such a stadium and exemption from down payment requirements” (Bill Jacket, L 1961, ch 729 at 15).

      . The other legislative approval required by the City, captured in subdivision (e), related to the City’s need for an exemption from the down-payment requirement of section 107.00 of the Local Finance Law, “[bjecause of the impracticability of issuing 15-year bonds, and because of the indicated minor deficits preventing operation of the stadium on a fully self-sustaining basis initially” (Off of Mayor, Supp Mem in Support, Bill Jacket, L 1961, ch 729 at 40; see generally id. at 38-40).

        . See F. Scott Fitzgerald, The Great Gatsby 16 (1925).

      . Indeed, in the first paragraph of section 18-118 (b), the use of “appurtenant” to describe the grounds is abandoned, and the City is authorized to grant any person or persons contracting with the City “the right to use, occupy or carry on activities in, the whole or any part of such stadium, grounds, parking areas and other facilities” (Administrative Code § 18-118 [b] [emphasis added]). Notably, the City may authorize third parties not only to “use” the grounds or parking areas, but to “occupy” these areas for any purpose specified in subdivision (b).

      . Following subdivision (b) (1)⅛ list of authorized purposes, the statute contains some examples of possible uses that would promote those purposes, such as theatrical presentations, trade conventions and exhibitions. Where, as here, a statute specifies that a list of general purposes “includes” certain specific items, those items are no more than a nonexhaustive list of examples (see e.g. Matter of Walker, 64 NY2d 354, 358 [1985] [“(W)ords of a general bequest followed by enumerated articles are not limited to things similar to the specific items listed”]; Matter of Cahill v Rosa, 89 NY2d 14, 21 [1996]). Here, the legislature chose to use the word “including” before the list of examples and omit any limiting language, thereby not restricting the statute’s application to the examples listed.

      . See e.g. Union Sq. Park, 22 NY3d at 654 (“Under the public trust doctrine, dedicated parkland cannot be converted to a nonpark purpose for an extended period of time absent the approval of the State Legislature”); Friends of Van Cortlandt Park, 95 NY2d at 632 (alienating parkland “requires the direct and specific approval of the State Legislature, plainly conferred” [internal quotation marks and citation omitted]); Brooklyn Park Commrs. v Armstrong, 45 NY 234, 243 (1871) (“Receiving the title in trust for an especial public use, [the city] could not convey without the sanction of the legislature; and the act of 1870 expresses the legislative sanction. ... It was within the power of the legislature to relieve the city from the trust to hold [the land] for a use only, and to authorize it to sell and convey”).

      . The majority cites Potter v Collis (156 NY 16 [1898]) as part of our Court’s public trust jurisprudence. However, in that case we held that the Common Council of New York City could not “invest private parties with an exclusive interest in [the public] streets” because the Railroad Act in question did not grant any contracting authority to the City; that authority remained “vested solely in the legislature” (156-NY at 30-31). Here, the legislature expressly alienated the property at issue and granted the City specific contracting authority to promote the purposes set out in the statute. Although the majority cites Matter of City of New York (228 NY 140 [1920]) for the proposition that “ ‘[w]hen there is a fair, reasonable and substantial doubt concerning the existence of an alleged power in a municipality, the power should be denied’ ” (majority op at 432, quoting Matter of City of New York, 228 NY at 152), in that case we explicitly held that the statute at issue demonstrated that the legislature intended “to prohibit the alienation of all water front property owned by the city” (id. at 151 [emphasis added]). Clearly, that case should not guide our interpretation of a statute that expressly alienates public land. The majority’s citation to Matter of Lake George Steamboat Co. v Blais (30 NY2d 48 [1972]) is equally inapposite, since that case does not involve any legislative enactment that expressly alienates parkland.

      . Paul Steinbach, Stadium Design Evolution from 1977 to 2017, Athletic Business, Apr. 2017, http://www.athleticbusiness.com/stadium-arena/ stadium-design-evolution-from-1977-to-2017.html (accessed May 30, 2017).

      . That is particularly so where, as here, the statute specifically contemplates and permits new contracts, leases, agreements, and authorizations after the initial ones have expired.


source: Caselaw Access Project

author: Chief Judge DiFiore.

license: Public Domain

text:
    [80 NE3d 999, 58 NYS3d 253]
    Karine Gevorkyan et al., Appellants, v Ira Judelson, Respondent.
    Argued June 1, 2017;
    decided June 27, 2017

      POINTS OF COUNSEL

      Andrew Lavoott Bluestone, New York City, for appellants.

      Watters & Svetkey, LLP, New York City (<Jonathan Svetkey of counsel), for respondent.

      Eric T. Schneiderman, Attorney General, New York City (Eric Del Pozo, Barbara D. Underwood and Steven C. Wu of counsel), for New York State Department of Financial Services, amicus curiae.

      Lisa Schreibersdorf, Brooklyn Defender Services, Brooklyn (Ashika David of counsel), for Brooklyn Defender Services and others, amici curiae.
   OPINION OF THE COURT

Chief Judge DiFiore.

The United States Court of Appeals for the Second Circuit, by certified question, has asked us whether an entity engaged in the bail bond business may retain the premium paid on a criminal defendant’s behalf when bail is denied and the defendant is never released from custody. Inasmuch as the Insurance Law provides that such an entity does not earn a premium for a bail bond if a court refuses to accept the bond following a bail source hearing, we answer in the negative.

L

In 2011, Arthur Bogoraz was indicted on state law fraud charges and bail was fixed at $2 million. Plaintiffs, the wife and family friends of Bogoraz, contacted defendant Ira Judel-son, a licensed bail bond agent affiliated with the International Fidelity Insurance Company, a bail bond surety. Judelson, on behalf of International Fidelity, entered into an indemnity agreement with plaintiffs whereby International Fidelity agreed to underwrite a bail bond to secure Bogoraz’s release from custody in exchange for a premium of $120,560. Plaintiffs promised to indemnify the bond and provide collateral. Shortly thereafter, plaintiffs paid the premium to Judelson, in trust for International Fidelity. Judelson then posted the bail bond with the court in compliance with Criminal Procedure Law § 520.20 (1) (a), which provides:

“[W]hen a bail bond is to be posted in satisfaction of bail, the obligor or obligors must submit to the court a bail bond in the. amount fixed, executed in the form prescribed in subdivision two, accompanied by a justifying affidavit of each obligor, executed in the form prescribed in subdivision four.”

The court thereafter ordered a hearing under CPL 520.30, which provides:

“Following the posting of a bail bond and the justifying affidavit or affidavits . . . , the court may conduct an inquiry for the purpose of determining the reliability of the obligors . . . , the value and sufficiency of any security offered, and whether any feature of the undertaking contravenes public policy . . .
“At the conclusion of the inquiry, the court must issue an order either approving or disapproving the bail” (CPL 520.30 [1], [3]).

The court denied the bail bond at the hearing and the Appellate Division dismissed a writ of habeas corpus on Bogoraz’s behalf (People ex rel. Aidala v Warden, Rikers Is. Corr. Facility, 100 AD3d 667 [2d Dept 2012], lv denied 20 NY3d 858 [2013]). Bogoraz never was released and, when plaintiffs requested the return of the $120,560 premium, Judelson refused.

Plaintiffs sued Judelson in the United States District Court for the Southern District of New York, asserting diversity jurisdiction. The complaint alleged breach of contract, unjust enrichment, and conversion. After a bench trial, the District Court found that the indemnity agreement permitted Judelson to retain the premium (2015 WL 13158513 [SD NY, Sept. 30, 2015, No. 13 Civ 8383(RMB)]). The District Court considered CPL 520.20 and 520.30, but concluded that “New York State practices and statutory guidance are not dispositive” (id. at *12).

On appeal, the Second Circuit stated that there is a “dearth” of New York legal authority on this subject and that the relevant New York Criminal Procedure Law is “ ‘not dispositive’ ” (841 F3d 584, 587-588 [2d Cir 2016]). The court determined that New York Insurance Law § 6804 (a), the provision relating to bail bond compensation, “controls the amount of the premium a bail bondsman may charge, [yet] nothing in that Article sheds light on when that premium is actually earned” (id. at 587). The court concluded that New York State’s “interest in regulating the premiums to be received by bail bond agents is clear” and that the New York Court of Appeals, rather than the federal courts, should strike the balance between the State’s interests in “securing] compensation for bail bond agents” and “protect [ing] defendants and their families at a critical juncture in criminal proceedings” (id. at 589). Accordingly, the Second Circuit certified the following question to us:

“Whether an entity engaged in the ‘bail business,’ as defined in [Insurance Law] § 6801(a)(1), may retain its ‘premium or compensation,’ as described in [Insurance Law] § 6804(a), where a bond posted pursuant to [CPL] 520.20 is denied at a bail-sufficiency hearing conducted pursuant to [CPL] 520.30, and the criminal defendant that is the subject of the bond is never admitted to bail” (id.).

II.

We begin with Insurance Law article 68 — the statutory provisions regulating the bail bond industry, including the premium payable to a bail bond entity. An entity is “deemed to be doing a bail business” when, on behalf of another, it “deposit[s] money or property as bail or execute[s] as surety any bail bond” in more than two unrelated cases within a period of one month (Insurance Law § 6801 [a] [1] [emphasis added]). A “surety” is someone other than the principal of the bond — that is, other than the criminal defendant — “who executes a bail bond on behalf of a principal and thereby assumes the undertaking described therein” (CPL 500.10 [11], [12]). For purposes of this certified question, we will limit our response to the “premium or compensation” due to bail bond sureties.

The premium payable to a bail bond surety is determined based on a sliding scale percentage not to exceed 10% of the bail bond amount (Insurance Law § 6804 [a]). The surety may not “charge or receive, directly or indirectly, any greater compensation for making a deposit for bail or giving bail” (id. § 6804 [b] [1]). Importantly, “[t]he premium or compensation” is “for giving bail bond or depositing money or property as bail” (id. § 6804 [a]). In other words, the surety may receive a premium only upon “giving bail bond.”

The Insurance Law does not expressly define “give bail bond” — or “give bail,” as used in Insurance Law § 6804 (b). However, Insurance Law § 6801 (a) (1) equates having “given such bail” with having “execute[d] as surety any bail bond.” In turn, Insurance Law § 6803 (b) provides that the court

“concerned in the matter may examine under oath any insurer . . . doing a bail business ... or the officer or agent of any such insurer . . . proposing to execute a bail bond . . . as to the indemnity, if any, . . . and as to the fee charged, if any, for the giving of such bond. The court . . . may refuse to accept such bond ... if satisfied that any portion of such security has been feloniously obtained by the defendant, or that the provisions of this or any other section of law have been violated, or that the person or persons indemnifying such insurer . . . shall have within a period of one month prior thereto given indemnification or security for like purpose in more than two cases not arising out of the same transaction and that such person is not duly licensed by the superintendent in accordance with the provisions of this chapter” (emphasis added).

Section 6803 (b) explains that a court may “refuse to accept such bond” under certain circumstances, including if the source of the security for the bond was “feloniously obtained.” This inquiry is known as a bail source hearing and in criminal actions, the procedure is governed by the corresponding statute CPL 520.30. Insurance Law § 6803 (b) authorizes the court to examine a surety “proposing to execute a bail bond” (emphasis added). In other words, if the court “refuse[s] to accept [the] bond,” the bond remains only proposed, and not fully executed within the meaning of the Insurance Law (Insurance Law §§ 6801 [a] [1]; 6803 [b]). Because “executing” a bail bond is equated with having “given bail” in section 6801 (a) (1), that provision and section 6803 (b), read together, establish that bail bond has not been given if the court refuses to accept the bond after the bail source hearing. Thus, a bail bond surety may not retain a premium when the court refuses to accept the bond because no premium is earned under section 6804 (a) until a bail bond is given, and the bond cannot be deemed given within the meaning of the Insurance Law if it is not accepted by the court.

This interpretation comports with the understanding of the phrase “giving bail” at the time that the forerunner of Insurance Law article 68 — Code of Criminal Procedure § 554-b — was enacted. “When the Legislature has failed to assign definition to a statutory term, the courts will generally construe that term according to fits ordinary and accepted meaning as it was understood at the time’ ” (People v Eulo, 63 NY2d 341, 354 [1984] [citation omitted]). In the 1920s, when the legislature enacted section 554-b, our decisions consistently used the phrase “giving bail” to encompass the release of the criminal defendant (see e.g. People v Buzzi, 238 NY 390, 393 [1924] [“The defendant . . . was released after obtaining a writ of ha-beas corpus and upon giving bail”]; Netograph Mfg. Co. v Scrugham, 197 NY 377, 381 [1910] [“When bail is given, the principal is regarded as delivered into the custody of his sureties” (internal quotation marks and citations omitted)]; Stono v Weiller, 128 NY 655, 656 [1891] [“(T)he release (of the defendant) was executed after bail had been given”]).

Judelson argues that we should instead equate “giving bail bond” to “posting bail bond” as that term is used in the Criminal Procedure Law. CPL 500.10 defines “post bail” to mean “to deposit bail in the amount and form fixed by the court, with the court” (CPL 500.10 [8]). This argument is not persuasive in light of Insurance Law article 68’s underlying purpose (see Matter of Cassano v Cassano, 85 NY2d 649, 655 [1995] [“(L)egislative purpose, not linguistic perfection, guides our determination” and thus “we must seek to give meaning to the (ambiguous) term ... in the context of the statute’s over-all objective”]). The legislature enacted the predecessor statute “because of the many abuses that have arisen in the administration of the criminal law” committed by “professional bondsmen” (Approval Mem of Assn of Bar of City of NY, Bill Jacket, L 1922, ch 303 at 3). These abuses, as related to compensation, include “charges [that] have been exorbitant” (Letter from St Ins Dept, Mar. 22, 1922 at 1, Bill Jacket, L 1922, ch 303). Indeed, in support of the statute, the Chief City Magistrate of New York City expressed concern about how bondsmen, in some cases, had been taking advantage of criminal defendants as to the compensation charged (see Letter from City Magistrates Ct, Mar. 21, 1922 at 2, Bill Jacket, L 1922, ch 303). To permit a surety to retain a premium when the criminal defendant is not admitted to bail is inconsistent with the legislature’s objectives in regulating bail bond compensation.

Further, as discussed above, the bail bond statutes empower a court to examine a posted bail bond and determine whether it should be approved or rejected (see CPL 520.30 [1], [3]; Insurance Law § 6803 [b]). The court may reject the bail bond if it is dissatisfied with the source of the funds, the reliability of the obligors, the value of the security, the qualifications of the surety, or indeed “any feature of the undertaking [that] contravenes public policy” (CPL 520.30 [1]; see also Insurance Law § 6803 [b]). Under Judelson’s interpretation, a court could reject a bail bond following a bail source hearing based on the surety’s qualifications or because the surety failed to properly vet the underlying security, yet, because the surety “posted” bail bond, the surety could still retain the premium. Such an outcome does not comport with the legislative intent to protect against abuses in the bail bond industry.

In short, Insurance Law § 6804 (a) prohibits a bail bond surety from retaining a premium when the criminal defendant is not released on bail.

III.

The insurance law principle that premium follows risk further supports this result. The legislature originally placed the predecessor bail bond compensation statute in the Code of Criminal Procedure (Code Crim Pro § 554-b [5]). However, when the legislature replaced the Code of Criminal Procedure with the Criminal Procedure Law in 1971, the bail bond compensation statute was moved to the Insurance Law (former Insurance Law § 331). This move reflects a legislative intent that the provision regulating bail bond compensation, along with certain other Code of Criminal Procedure provisions, “do[es] not fit into or belong in a body of criminal procedure law” and instead belongs in “other, more appropriate chapters of the consolidated laws” (Senate Mem in Support, Bill Jacket, L 1971, ch 545 at 4). The law today now deems entities engaged in the bail business to be “doing an insurance business” (Insurance Law § 6801 [a] [1]). It is therefore appropriate to look to principles of insurance law for guidance (see Motor Veh. Acc. Indem. Corp. v National Grange Mut. Ins. Co., 19 NY2d 115, 118-119 [1967]).

The question before us ultimately turns on when a “premium” is earned. The use of the word “premium” in section 6804 (a) is significant because that term connotes a consideration paid to an insurer for assuming a risk (see Ollendorff Watch Co. v Pink, 279 NY 32, 36-37 [1938]; see also Home Ins. Co. v Chang, 41 NY2d 288, 290 [1977]; S.A.F. La Sala Corp. v CNA Ins. Cos., 291 AD2d 228, 229 [1st Dept 2002]). Risk, when used “with reference to insurance, describes the liability assumed as specified on the face of the policy” (Continental Ins. Co. v Aetna Ins. Co., 138 NY 16, 21 [1893] [emphasis added]). Notably, in 1997, when the legislature amended section 6804 to increase premium rates to sureties, the sponsor justified the change as providing “an incentive to assume more risk by bonding agents” (Senate Introducer Mem in Support, Bill Jacket, L 1997, ch 400 at 4 [emphasis added]).

When does a bail bond surety incur risk? In our view, the risk associated with the bail bond is that the principal admitted on bail will fail to appear and the bail bond will be forfeited (see CPL 540.10). If the posted collateral does not cover the bail bond, the surety may suffer a financial loss. The surety does not incur this risk when the principal is not released and so has no opportunity to jump bail (see Penal Law §§ 215.55, 215.56, 215.57). While the surety assumes a binding obligation to pay the bail upon posting the bail bond, no risk attaches from this obligation alone. Risk is triggered only when the court takes additional steps following the posting — approving the bail bond and issuing a certificate authorizing the principal’s release (see CPL 510.40 [3]). When a hearing is ordered under CPL 520.30, the court approves or disapproves the bail bond after the hearing (see CPL 520.30 [3]). If the court disapproves the bail bond, the surety never runs the risk it contracted to insure. In light of the statutory language and legislative history described above, the principle that premium follows risk also supports our interpretation of Insurance Law article 68 as providing that, when a court holds a bail source hearing under CPL 520.30, the surety may retain a premium only when the principal is released on bail.

IV.

Accordingly, the certified question should be answered in the negative.

Judges Rivera, Stein, Fahey, Garcia and Wilson concur; Judge Feinman taking no part.

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

      . This action was brought against the bail bond agent, Ira Judelson, rather than the bail bond surety, International Fidelity. We confine our decision herein to the question of the right of the surety to retain a premium; we do not opine on New York law with respect to the compensation structure between the surety and the bail bond agent.

      . The Criminal Procedure Law governs the procedure in criminal actions (see Matter of Santangello v People, 38 NY2d 536, 538 [1976]). It does not regulate the bail bond business, such as the amount of compensation or when that compensation is earned. These matters are exclusively under the purview of Insurance Law article 68.

      . We acknowledge that the Criminal Procedure Law contemplates “executing a bail bond” to mean signing the bail bond undertaking and supporting affidavits as part of the process of “post[ing]” a bail bond (CPL 520.20 [1] [a]). The CPL 520.30 hearing, in turn, occurs “[flollowing the posting of a bail bond” (CPL 520.30 [1]). This different usage of the word “execute” does not, however, change our understanding of Insurance Law § 6803 (a). There is no indication that the legislature intended for the Criminal Procedure Law bail bond provisions to modify how former Code of Criminal Procedure § 554-b, the predecessor of Insurance Law article 68, regulated a surety’s premium. Rather, the legislature intended to preserve section 554-b, after determining that it was “of continuing utility or validity” and should be moved into the Insurance Law “lest [it] fall when the repeal of the Code of Criminal Procedure [became] effective” in 1971 (Senate Mem in Support, Bill Jacket, L 1971, ch 545 at 4). It follows that the particular matters related to sureties, including the premium that may be charged, survived the enactment of the Criminal Procedure Law. Thus, it is article 68’s use of the word “execute” that governs our analysis.

      . The phrase “giving bail” is used similarly in other bail bond statutes. For example, CPL 570.36 permits an out-of-state court to commit a criminal defendant to the county jail “unless the accused gives bail as provided in [CPL 570.38].” CPL 570.38, in turn, states that certain New York courts “may admit the person arrested to bail by bond or undertaking, with sufficient sureties, and in such sum as [the court] deems proper” (emphasis added). As used in these provisions, the term “giving bail” captures the bail process up to and including the principal’s release — i.e., until the principal is “admitted” to bail. Likewise, CPLR 7010 (b), which provides habeas corpus review of excessive bail, states that, when a court is required to direct a final judgment admitting a person to bail, “[s]uch judgment must fix the amount of bail, specify the time and place at which the person detained is required to appear, and order his release upon bail being given in accordance with the criminal procedure law” (emphasis added).


author: Wilson, J.

text:
    [80 NE3d 1026, 58 NYS3d 280]
    The People of the State of New York, Respondent, v Michael E. Prindle, Appellant.
    Argued June 1, 2017;
    decided June 29, 2017

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), for appellant.

      Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), for respondent.

      The Legal Aid Society, Criminal Appeals Bureau, New York City (Ursula Bentele, Andrew Fine, Lawrence Hausman, Richard Joselson and Whitney Robinson of counsel), for The Legal Aid Society, amicus curiae.
   OPINION OF THE COURT

Wilson, J.

“This appeal presents another Apprendi challenge to New York’s discretionary persistent felony offender sentencing scheme. The primary issue before us is whether, in light of [Alleyne v United States (570 US —, 133 S Ct 2151 [2013])], this sentencing scheme violates Apprendi [v New Jersey (530 US 466 [2000])] and defendant’s due process and Sixth Amendment rights. We again uphold the constitutionality of New York’s discretionary persistent felony offender sentencing scheme and further hold that defendant’s constitutional rights were not violated” (People v Quinones, 12 NY3d 116, 119 [2009]).

I.

The Sixth and Fourteenth Amendments guarantee criminal defendants in state courts “the right to a speedy and public trial, by an impartial jury.” To satisfy that right, the People must prove each element of a crime beyond a reasonable doubt. Among those elements is any fact — other than one admitted by the defendant or involving the mere fact of a prior felony conviction (Almendarez-Torres v United States, 523 US 224 [1998]) — that has the effect of increasing the prescribed range of penalties to which a defendant is exposed (see Apprendi, 530 US at 489-490). For nearly two decades, the United States Supreme Court has applied the Apprendi rule in cases involving capital punishment (Hurst v Florida, 577 US —, 136 S Ct 616 [2016]; Ring v Arizona, 536 US 584 [2002]), broad judicial discretion to find aggravating factors (Cunningham v California, 549 US 270 [2007]; Blakely v Washington, 542 US 296 [2004]), the federal sentencing guidelines (United States v Booker, 543 US 220 [2005]), and mandatory minimum sentences (Alleyne, 570 US —, 133 S Ct 2151).

Each successive decision of the Supreme Court has brought renewed challenges to the constitutionality of New York’s persistent felony offender statute. From the first of those challenges, we have held that the statute (Penal Law § 70.10 [1] [a]) falls within the exception provided by Almendarez-Torres, and thus outside the scope of the Apprendi rule, because it exposes defendants to an enhanced sentencing range based only on the existence of two prior felony convictions (People v Giles, 24 NY3d 1066 [2014]; People v Battles, 16 NY3d 54 [2010]; People v Quinones, 12 NY3d 116 [2009]; People v Rivera, 5 NY3d 61 [2005]; People v Rosen, 96 NY2d 329 [2001] j. As we have consistently explained, the existence of those prior convictions — each the result of either a guilty plea or a jury verdict — is the “sole determinant of whether a defendant is subject to recidivist sentencing as a persistent felony offender” (Rivera, 5 NY3d at 66, citing Rosen, 96 NY2d at 335). Only after the existence of those prior convictions is established and the maximum permissible sentence raised does Supreme Court have “the discretion to choose the appropriate sentence within a sentencing range prescribed by statute” (Quinones, 12 NY3d at 129; see Penal Law § 70.10 [2]).

“The court’s opinion is, of course, subject to appellate review, as is any exercise of discretion. The Appellate Division, in its own discretion, may conclude that a persistent felony offender sentence is too harsh or otherwise improvident” and reduce it in the interest of justice to a sentence within the statutory range fixed by the legislature for the crime of conviction, without regard to the persistent felony offender enhancement (Rivera, 5 NY3d at 68-69). “In this way, the Appellate Division can and should mitigate inappropriately severe applications of the statute” (id.).

In other words, the statute mandates a two-part process: in step one, the court adjudicates the defendant a persistent felony offender if the necessary and sufficient fact of the two prior convictions is proved beyond a reasonable doubt, thereby exposing him to the sentencing range applicable to such offenders; in step two, it evaluates what sentence is warranted and sets forth an explanation of its opinion on that question for the record (see Penal Law § 70.10 [2]; Rivera, 5 NY3d at 68).

Although Rivera and several of our cases following it include dissents questioning the soundness of our construction of New York’s persistent felony offender statute (Giles, 24 NY3d at 1073-1076 [Abdus-Salaam, J., concurring in part and dissenting in part]; Battles, 16 NY3d at 59-68 [Lippman, Ch. J., dissenting in part]; Rivera, 5 NY3d at 71-76 [Kaye, Ch. J., dissenting]; Rivera, 5 NY3d at 76-83 [Ciparick, J., dissenting]), that construction has withstood both Sixth Amendment scrutiny and the test of time. For the reasons elaborated in our prior cases and the principle of stare decisis, our construction withstands Mr. Prindle’s suit as well.

II.

In addition to asking us to discard our well-settled construction of the persistent felony offender statute established in Rosen, Rivera, Quinones, Battles, and Giles (a decision that would require us to strike down the statute as unconstitutional and hold the sentence at issue illegal), Mr. Prindle argues that the Supreme Court’s recent extension of Apprendi to increases in the mandatory minimum of a sentencing range requires us to declare that the statute, even as construed in our prior case law, violates the Sixth Amendment. His argument is unavailing because the persistent felony offender statute never increases the mandatory minimum sentence to which a persistent felony offender is exposed. Instead, persistent felons are subject to the same mandatory minimum as non-recidivist offenders guilty of the same crime.

In Alleyne v United States, the Supreme Court applied Ap-prendi and remanded for resentencing the case of a defendant who was subjected to an increased, mandatory minimum term of imprisonment based on a judicial finding that he had brandished, rather than merely used or carried, a firearm in relation to a crime of violence (Alleyne, 570 US at —, 133 S Ct at 2155-2156; 18 USC § 924 [c] [1] [A]). Overruling Harris v United States (536 US 545 [2002]), which had limited Apprendi to cases increasing the maximum sentence, the Court held that “a fact increasing either end of the [sentencing] range produces a new penalty and constitutes an ingredient of the offense” that must be proved to a jury beyond a reasonable doubt (Alleyne, 570 US at —, 133 S Ct at 2160).

New York’s persistent felony offender statute, however, does not increase the mandatory minimum sentence for defendants determined to be persistent felony offenders. After determining, on the sole basis of the predicate felonies, that a defendant is to be adjudicated a persistent felony offender, a sentencing court may choose to sentence that defendant to at least 15 years in prison but also retains “its discretion to hand down a sentence as if no recidivism finding existed” (Rivera, 5 NY3d at 68; Penal Law § 70.10 [2] [instructing judges that they may impose an A-I sentence]). Moreover, after a defendant has been “adjudicated as a persistent felony offender” during step one, “the People retain the burden to show that the defendant deserves the higher sentence” (Rivera, 5 NY3d at 68). Thus, even though Mr. Prindle is a persistent felony offender, the minimum sentence he could have received has never changed. Although a judge, in sentencing a persistent felony offender, is limited to sentences in a non-continuous range composed of both a lower register (the sentence authorized by Penal Law §§ 70.00, 70.02, 70.04, 70.06 or 70.80 [5] for the crime of which the defendant stands convicted) and an upper one (the sentence authorized by that section for a class A-I felony, or between 15 and 25 years to life), the floor of that expanded range remains — as the sentencing court in this case recognized — the floor faced by offenders who have not been adjudicated persistent felony offenders (see Portalatin v Graham, 624 F3d 69, 89 n 12 [2010]).

In attempting to apply Alleyne to the facts of this case, Mr. Prindle contends that judges sentencing defendants in accordance with the New York persistent felony offender statute are engaged in not a two- but a three-step process. In step one, the court relies on prior convictions to determine whether a defendant is a persistent felony offender; in step two, it relies on “the history and character of the defendant and the nature and circumstances of his [or her] criminal conduct” (Penal Law § 70.10 [2]) to form an opinion about whether that defendant should be sentenced as a non-recidivist or as a persistent felony offender; and, in step three, it relies on traditional sentencing factors to announce a sentence within whichever range was dictated by the results of step two. It is at the end of step two, on this view, that judicial fact-finding has impermissibly increased the minimum sentence to 15 years to life.

As we have repeatedly construed New York’s persistent felony offender statute, it calls for sentencing courts to proceed in two steps, not three (see Rivera, 5 NY3d at 64 [explaining “the two-part nature of the proceeding”]). Mr. Prindle is atr tempting to create a Sixth Amendment violation where one does not exist by artificially cleaving step two into distinct pieces. What Mr. Prindle treats as steps two and three — although they may occur on different days — are really a single inquiry: where within the expanded range authorized by step one the actual sentence should fall. As we explained in Rivera,

“[i]n practical terms, the legislative command that sentencing courts consider the defendant’s ‘history and character’ and the ‘nature and circumstances’ of the defendant’s criminal conduct merely makes explicit what sentencing courts have always done in deciding where, within a range, to impose a sentence . . . The practice . . . falls squarely within the most traditional discretionary sentencing role of the judge” (Rivera, 5 NY3d at 69; see id. at 71 [reiterating that “the requirement that the sentencing justice reach an opinion as to the defendant’s history and character is merely another way of saying that the court should exercise its discretion”]; Giles, 24 NY3d at 1071-1072 [Smith, J., concurring]; Quinones, 12 NY3d at 130; Rosen, 96 NY2d at 335).

Although the judge in this case announced that he planned to sentence Mr. Prindle within the upper register of the expanded range before hearing argument about where within that register his precise sentence should fall, his decision to be transparent about the court’s intentions did not trespass on the Sixth Amendment. Nor was either the sentencing court or the Appellate Division prohibited from later deciding a sentence within the lower register would be the more appropriate punishment. In short, the minimum sentence did not increase because the lower courts always retained the discretion to sentence defendant “as if no recidivism finding existed” (Rivera, 5 NY3d at 68).

Even were Mr. Prindle correct in characterizing New York’s persistent felony offender statute as increasing the sentencing floor for persistent felony offenders, that increase would not be the result of impermissible judicial fact-finding. The increase in the floor to 15 years — like the increase in the ceiling to life— would be based solely on the existence of two prior felony convictions. Indeed, as Alleyne is a mere application of the Ap-prendi rule (Hurst, 577 US at —, 136 S Ct at 621) and as its central contention is that there is “no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum” (Alleyne, 570 US at —, 133 S Ct at 2163) — or, to put it another way, to distinguish Apprendi from Alleyne — it follows that the same construction that shelters our persistent felony offender regime from Apprendi would also save it from the latter case.

III.

For the foregoing reasons, we reaffirm our construction of the persistent felony offender statute and our conclusion that the statute falls squarely within the exception afforded by Almendarez-Torres.

We encourage sentencing courts and all parties engaged in these determinations to be careful to apply the persistent felony offender statute as we have construed it in Rivera and Quino-nes, a construction that is also thoroughly set out in the Second Circuit’s opinion in Portalatin v Graham (624 F3d 69 [2010], supra).

The sentencing court in this case followed the statutory procedure in determining that Mr. Prindle is, and should ultimately be sentenced as, a persistent felony offender. Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge DiFiore and Judges Rivera, Stein and Garcia concur; Judges Fahey and Feinman taking no part.

Order affirmed.

      . Although an “especially long and disturbing history of criminal convictions” is one factor a judge may consider in determining where in the expanded range to sentence a defendant (Rivera, 5 NY3d at 70), no assessment of the nature of the crimes underlying the prior convictions is called for by the initial persistent felony offender adjudication.

      . Persistent felony offender statutes that require a judge to rely on traditional sentencing factors before exposing a defendant to an expanded sentencing range impermissibly infringe upon the province of the jury (Cunningham, 549 US at 290). However, Apprendi and its successors uniformly uphold sentencing laws that allow for such discretion after the defendant is determined to be eligible for the expanded sentencing range (see e.g. Alleyne, 570 US at —, 133 S Ct at 2163; Blakely, 542 US at 309; Apprendi, 530 US at 481). Our Penal and Criminal Procedure Laws, as construed by Rosen, Rivera and their progeny, outline precisely such a law.

      . Even the detractors of onr construction of the statute admit that the statute, as construed by this Court, is unquestionably constitutional (Rivera, 5 NY3d at 72 [Kaye, Ch. J., dissenting] [“I agree that the statutory scheme the Court describes would pass constitutional muster”]; State v Bell, 283 Conn 748, 808-809, 931 A2d 198, 234 [2007] [“the majority’s construction of the New York statute places it squarely outside the Apprendi proscription”]).

      . Mr. Prindle makes much of the discontinuity between the sentencing range’s two registers. Such discontinuities, however, are not unique to New York’s persistent felony offender statute, are of no constitutional moment, and have been approved in previous Apprendi contexts. The range for persistent felony offenders in New York — the perigee and “apogee of potential sentences that are authorized based on factual predicates obtained in compliance with the Sixth Amendment: those found by the jury, those admitted by the defendant, and findings of recidivism” (Portalatin, 624 F3d at 88)— resembles the range for offenders subject to the permissible portion of the California determinate sentencing law at issue in Cunningham, which (as relevant) invited judges to exercise their discretion in deciding whether to sentence offenders to a lower term sentence of six years or a higher term sentence of 12 years, but did not empower them to sentence offenders to any term in between (Cunningham, 549 US at 278). The sentencing scheme in Cunningham was not struck down on that basis. Accordingly, we respect the legislature’s power to prescribe an appropriate sentencing range and consider this equivalent to a case in which that range’s two registers were overlapping or adjacent to one another.