author: CIPARICK, J. Jones, J. (dissenting).

text:
    [923 NE2d 1095, 896 NYS2d 707]
    The People of the State of New York, Respondent, v George Davis, Appellant.
    Argued October 22, 2009;
    decided November 24, 2009

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Sara Gurwitch and Richard M. Greenberg of counsel), for appellant.
    In a drug sale prosecution where there is a judicially-recognized agency defense, simple drug possession is a lesser included offense of drug sale. (People v Glover, 57 NY2d 61; People v Cogle, 94 AD2d 158; People v Harrison, 136 AD2d 469; People v Lam Lek Chong, 45 NY2d 64; People v Andujas, 79 NY2d 113; People v Sierra, 45 NY2d 56; People v Alvarez, 51 AD3d 167, 11 NY3d 785; People v Carr, 49 AD2d 656, 41 NY2d 847; People v Van Buren, 188 AD2d 887; People v Mike, 92 NY2d 996.)

      Robert M. Morgenthau, District Attorney, New York City (Vincent Rivellese and Patrick J. Hynes of counsel), for respondent.
    Drug possession is not a lesser included offense of drug sale, regardless of whether the trial court submits the agency defense. (People v Glover, 57 NY2d 61; People v Sierra, 45 NY2d 56; People v Van Buren, 188 AD2d 887; People v Leon, 7 NY3d 109; People v Barney, 99 NY2d 367; People v Martin, 59 NY2d 704; People v Van Norstrand, 85 NY2d 131; People v Mike, 92 NY2d 996; People v Gondolfo, 94 Misc 2d 696; People v Yon, 300 AD2d 1127.)
   OPINION OF THE COURT

CIPARICK, J.

On this appeal, we are asked to determine whether it was error for Supreme Court to refuse to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal sale of a controlled substance in the third degree when an agency defense was properly submitted to the jury. Applying the test articulated in People v Glover (57 NY2d 61, 63 [1982]), because it is possible to sell drugs without concomitantly, by the same conduct, possessing them, we hold that criminal possession is not a lesser included offense of criminal sale of a controlled substance and decline to adopt a different rule for cases where the agency defense is charged.

On March 13, 2005, defendant was arrested for selling drugs to an undercover police officer. He was indicted for criminal sale of a controlled substance in the third degree (Penal Law § 220.39). At trial, the officer testified that he had approached defendant outside a building known for drug sales. When defendant asked what he was looking for, the officer requested two bags of crack and gave defendant $60. Defendant then went inside the building, came back outside, and handed the officer two bags of crack cocaine. In contrast, defendant testified that he was approached by the undercover officer at a donut shop and the officer asked for help purchasing crack. In return, the officer promised to “look out for” defendant. According to defendant, after helping the officer purchase a crack pipe, he led the officer to the building, took $40 the officer gave him, went inside alone, purchased crack, and gave the crack to the officer, all without receiving payment for his services. The officer and defendant then left in opposite directions and defendant was followed by a second undercover officer until he was apprehended by a nearby field team.

At defendant’s request, Supreme Court instructed the jury on the agency defense, explaining that “a person is not guilty of selling a controlled substance if he was acting as the agent of the buyer.” The prosecution never objected to this instruction, and does not contest its propriety. Supreme Court, however, denied the defense’s request to charge criminal possession of a controlled substance as a lesser included offense of the sale charge. Defendant was convicted, and the Appellate Division affirmed the judgment, holding that criminal possession is not a lesser included offense of the sale charge because “ ‘it is not necessary to possess a controlled substance in order to offer or agree to sell it’ ” (People v Davis, 54 AD3d 575, 575 [1st Dept 2008], quoting People v Cogle, 94 AD2d 158, 159 [3d Dept 1983]). As to defendant’s argument that cases where an agency defense is submitted to the jury should be treated differently, the Appellate Division stated that this “is a matter best left to the Court of Appeals” (Davis, 54 AD3d at 577). A Judge of this Court granted leave to appeal (11 NY3d 924 [2009]) and we now affirm.

A criminal defendant may request that the jury consider any “lesser included offense” of a count charged in an indictment that is reasonably supported by the evidence (CPL 300.50 [1], [2]). An offense is “lesser included” if “it is impossible to commit [the charged] crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree” (CPL 1.20 [37]). In Glover (57 NY2d at 63), we established a two-pronged test to determine when a defendant is entitled to have a lesser included offense charged. First, the proposed lesser offense must be “an offense of lesser grade or degree” and it must be “in all circumstances . . . impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense” (id. [emphasis added]). Second, there must be “a reasonable view of the evidence in the particular case that would support a finding that [defendant] committed the lesser offense but not the greater” (id.).

Although prior to Glover we asked only whether it was impossible to commit the greater crime without the lesser on the particular facts of the case, Glover broadened the inquiry to whether it is possible “in theory” to commit the greater crime without committing the lesser (57 NY2d at 64). Defendant’s reliance on pre-Glover cases is therefore misplaced. Indeed, we have recently and repeatedly reaffirmed this aspect of Glover’s holding (People v James, 11 NY3d 886, 888 [2008] [applying the Glover test]; People v Miller, 6 NY3d 295, 302-303 [2006] [clearly stating that “we have no intention of departing from Glover”]). Although Glover’s theoretical approach necessarily means that in many cases the proposed lesser crime was, in fact, committed, this approach has the benefit of ensuring uniformity in charging lesser included offenses. Today we once again affirm that whether it is possible to commit the greater offense without committing the lesser must be determined by “a comparative examination of the statutes defining the two crimes, in the abstract” (Glover, 57 NY2d at 64).

Turning to the statutes at issue here, it is possible to commit the sale crime without committing the possession crime. One charged with criminal sale of a controlled substance in the third degree is charged with “knowingly and unlawfully sell[ing] . . . a narcotic drug” (Penal Law § 220.39 [1]); “sell” is defined broadly as “to sell, exchange, give or dispose of to another, or to offer or agree to do the same” (Penal Law § 220.00 [1]). Thus, sale does not necessitate possession in the seventh degree— “knowingly and unlawfully possessing] a controlled substance” (Penal Law § 220.03)—since possession requires “physical possession or . . . dominion or control over tangible property” (Penal Law § 10.00 [8]). One need not have dominion or control over a drug in order to offer to sell it to someone else.

This analysis is in no way altered by our holding in People v Mike (92 NY2d 996, 998 [1998]) that a drug sale requires an “ability to proceed with the sale.” As we stated in Mike, ability to sell does not require “proof of possession of the contraband” (id. at 998-999). For example, a middleman paid a commission by a seller may be guilty of sale but not possession.

Defendant and the dissenting opinion urge us to reach a different result here because the agency defense was charged, permitting the jury to find defendant an agent of the buyer, rather than a seller, and treat him accordingly. Nothing about the agency defense, however, requires a defendant to be charged with possession, though he may confess to it. The agency defense is a well-established “interpretation of the statutory definition of the term ‘sell’ ” (People v Andujas, 79 NY2d 113, 117 [1992]). Although “Heading the statute literally, any passing of drugs from one person to another would constitute a sale” (People v Lam Lek Chong, 45 NY2d 64, 72 [1978]), we have held that “[o]ne who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics” (id. at 73). This assertion of agency is not a complete defense because it acknowledges defendant’s wrongdoing. A defendant who asserts the agency defense acknowledges that he is guilty of a crime, but it is not necessarily a crime for which he is charged.

Because the agency defense is a defense, not a separate crime under the sale statute, it does not alter our analysis under Glover. Thus, as the Appellate Division correctly noted and the dissenting opinion acknowledges, a ruling that drug possession is a lesser included offense of a drug sale count in agency defense cases would require an exception to the Glover test. We decline to fashion such an exception. Determining whether to charge a defendant with possession of a controlled substance initially is a standard exercise of prosecutorial discretion. Supreme Court therefore did not err in refusing to submit the charge of criminal possession of a controlled substance in the seventh degree to the jury as a lesser included offense of criminal sale of a controlled substance in the third degree.

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

Jones, J. (dissenting).

Relying on People v Glover (57 NY2d 61 [1982]), the majority holds Supreme Court did not err in refusing to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal sale of a controlled substance in the third degree. I disagree because a trial judge’s failure or refusal to charge seventh degree or simple possession as a lesser included offense in a drug case where the agency defense is properly submitted to the jury may lead to incongruous and deleterious results. Under the circumstances of this case, therefore, an exception to Glover is warranted. Accordingly, I dissent and would reverse the order of the Appellate Division.

The first requirement under Glover—“that it is theoretically impossible to commit the greater crime without at the same time committing the lesser” (57 NY2d at 64; see CPL 1.20 [37])—does not consider the realities that typically attend a drug sale prosecution where the agency defense is asserted. Although it is theoretically possible to commit criminal sale in the third degree without concomitantly, by the same conduct, possessing the drugs, the likelihood of that happening is remote. This is why prosecutors in the real world frequently charge defendants in drug sale cases with both criminal sale and possession.

To be sure, the uniformity that arises from consistent application of a legal standard is important. However, blindly fitting the Glover standard to this type of case flies in the face of common sense and fundamental fairness.

The very nature of the agency defense supports the view that strict application of Glover is inappropriate here. The agency defense is unique in that it requires the defendant to admit he/ she criminally possessed drugs as an agent of the buyer. We have stated this defense

“is not a complete defense. The defendant who has been a party to a drug sale is not relieved of all criminal responsibility simply because he was acting for the buyer. The agency concept is essentially a means of determining the extent of the intermediary’s culpability, and thus the nature of his crime, under a statutory scheme which reserves the most severe penalties for [drug sellers]. Evidence that the defendant was acting solely as an agent of the buyer is properly employed to determine whether he is guilty of possession, instead of sale” (People v Lam Lek Chong, 45 NY2d 64, 74 [1978] [citations omitted]).

To set forth the facts underlying the admitted wrongdoing the defendant will usually take the stand, bringing his/her credibility into question. The jury, therefore, must determine whether defendant’s testimony should be credited and, ultimately, whether defendant should be held criminally liable as an agent of the buyer (i.e., to the same extent as the buyer).

In a drug sale case such as this, not charging simple possession where the trial court properly submits the agency defense to the jury undermines the defense. That is, a jury weighing a defendant’s testimony that he/she was an agent of a purchaser of drugs, without the lesser charge that the defendant all but admitted, gives less credence to the agency defense. Further, submitting the agency defense without simple possession may have a coercive effect on a jury. Given only one choice, a jury which believes the agency defense may acquit a defendant who admitted to criminal drug possession or, out of a belief that the defendant should be held criminally liable for the offense admitted to, convict the defendant of a greater crime than the one actually committed.

Here, the Appellate Division, after noting that this Court has recognized an exception to the “impossibility” test, stated that “whether another exception . . . should be recognized on account of the agency defense ... is a matter best left to [this Court]” (People v Davis, 54 AD3d 575, 577 [1st Dept 2008]). Based on the foregoing and the fact that in the instant case there was a reasonable view of the evidence from which the jury could have concluded that defendant committed the crime of simple possession (Supreme Court saw fit to submit the agency defense to the jury), this Court should recognize simple possession as such an exception and view it as a lesser included offense of criminal sale of a controlled substance in the third degree. This conclusion is consistent with this Court’s prior decisions recognizing exceptions to the statutory definition of “lesser included offense” (see People v Miller, 6 NY3d 295 [2006] [held defendants’ second degree murder convictions (intentional and standard felony murder) were lesser included under their first degree murder convictions (intentional felony murder) even though it was theoretically possible to commit intentional felony murder without committing standard felony murder]; People v Green, 56 NY2d 427 [1982]). Moreover, charging simple possession in this sort of case would not amount to reversible error. Nor does such a charge aggrieve the People. If the evidence adduced at trial makes out criminal possession in the seventh, that is what defendant will be convicted of.

Chief Judge Lippman and Judges Graffeo, Read and Smith concur with Judge Ciparick; Judge Jones dissents and votes to reverse in a separate opinion in which Judge Pigott concurs.

Order affirmed.


source: Caselaw Access Project

author: CIPARICK, J.

license: Public Domain

text:
    [923 NE2d 1137, 896 NYS2d 749]
    In the Matter of Chasm Hydro, Inc., et al., Appellants, v New York State Department of Environmental Conservation, Respondent.
    Argued January 7, 2010;
    decided February 16, 2010

      POINTS OF COUNSEL

      Poklemba & Hobbs, LLC, Malta (Gary C. Hobbs of counsel), for appellants.
    I. The New York State Department of Environmental Conservation’s authority over the Chasm Dam, as a federally regulated dam, is preempted by federal law. (Brown-ville Power Corp. v Hydro Dev. Group, 97 AD2d 947; First Iowa Hydro-Electric Cooperative v FPC, 328 US 152; FPC v Oregon, 349 US 435; Matter of Niagara Mohawk Power Corp. v New York State Dept. of Envtl. Conservation, 82 NY2d 191, 511 US 1141; Fourth Branch Assoc. v Department of Envtl. Conservation, 146 Misc 2d 334; California v FERC, 495 US 490; Rivers Elec. Co., Inc. v 4.6 Acres of Land Located in Town of Catskill, County of Greene, 731 F Supp 83.) II. This Court has previously rejected the New York State Department of Environmental Conservation’s claim that it has regulatory authority over appellants’ federally approved dam repairs, where the repairs may affect the “cleanliness” of the river water. (First Iowa Hydro-Electric Cooperative v FPC, 328 US 152; FPC v Oregon, 349 US 435; California v FERC, 495 US 490; Matter of de Rham v Diamond, 32 NY2d 34; Matter of Niagara Mohawk Power Corp. v New York State Dept. of Envtl. Conservation, 187 AD2d 7, 82 NY2d 191, 511 US 1141; Fourth Branch Assoc. v Department of Envtl. Conservation, 146 Misc 2d 334; Matter of Erie Blvd. Hydropower, L.P. v Stuyvesant Falls Hydro Corp., 30 AD3d 641.) III. Exhaustion of administrative remedies is not required where an agency is proceeding in excess of its jurisdiction. (Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371; Matter of Town of Bellmont v New York State Dept. of Envtl.

      Conservation, 284 AD2d 761; Matter of Niagara Mohawk Power Corp. v New York State Dept, of Envtl. Conservation, 82 NY2d 191; State of New York v United States, 620 F Supp 374; Atlantic States Legal Found., Inc. v Eastman Kodak Co., 12 F3d 353, 513 US 811.)

      Andrew M. Cuomo, Attorney General, Albany (Owen Demuth, Barbara D. Underwood, Andrew D. Bing, Lisa M. Burianek and Joseph Koczaja of counsel), for respondent.
    Section 401 (d) of the Federal Water Pollution Control Act (Clean Water Act) authorizes the New York State Department of Environmental Conservation to enforce violations of New York’s water quality standards and the related conditions and limitations that the State of New York imposed to assure compliance with those standards. (S.D. Warren Co. v Maine Bd. of Environmental Protection, 547 US 370; PUD No. 1 of Jefferson Cty. v Washington Dept, of Ecology, 511 US 700; Matter of Niagara Mohawk Power Corp. v New York State Dept. of Envtl. Conservation, 82 NY2d 191, 511 US 1141; Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783; Matter of Schumer v Holtzman, 60 NY2d 46; American Rivs., Inc. v Federal Energy Regulatory Commn., 129 F3d 99; City of Tacoma, Wash, v Federal Energy Regulatory Commn., 460 F3d 53; Matter of Eastern Niagara Project Power Alliance v New York State Dept. of Envtl. Conservation, 42 AD3d 857; Fletcher v Kidder, Peabody & Co., 81 NY2d 623, 510 US 993; DDB Tech., L.L.C. v MLB Advanced Media, L.P., 517 F3d 1284.)
   OPINION OF THE COURT

CIPARICK, J.

On this appeal, we must determine whether a CPLR article 78 petition in the nature of prohibition lies to prevent the New York State Department of Environmental Conservation (DEC) from bringing an administrative enforcement proceeding against Chasm Hydro, Inc. and the other petitioners for the violation of a variety of state water quality laws. Because petitioners have an adequate remedy at law and have not demonstrated that the agency has exceeded its jurisdiction, prohibition does not lie.

Petitioners own and operate the Chasm Hydro Dam on the Chateaugay River in the Town of Chateaugay, Franklin County. Under the Federal Power Act (FPA), the Federal Energy Regulatory Commission (FERC) has licensing authority over the dam and authority to exempt projects from the Act’s licensing procedures (16 USC § 791a et seq.). Although regulation of hydroelectric dams is generally vested in FERC, states exercise some control over a dam’s impact on water quality. Section 401 of the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (CWA), requires that any application for a federal license or permit that may result in discharge into navigable waters must first receive state certification that the activities being licensed will not violate the state’s water quality standards (33 USC § 1341 [a]).

In 1980, before Chasm Dam began operating, petitioners received a water quality certificate from DEC. It certified that the dam’s operation would comply with New York’s water quality standards provided that the dam receive DEC approval for any future construction, abide by applicable state law, and conduct any draining and refilling for repairs or maintenance gradually to avoid damage downstream. FERC issued Chasm an exemption from certain FPA requirements in 1981, noting that the exemption “requires compliance with any conditions that . . . State fish and wildlife agencies have determined appropriate to prevent loss of, or damage to, fish and wildlife resources.”

In 2005, petitioners informed FERC and DEC that they wanted to drain the pond in order to repair the dam and penstock, and in June 2006 petitioners submitted an application to DEC for any necessary permits. DEC issued a combined Environmental Conservation Law article 15 stream disturbance permit and revised CWA § 401 water quality certificate that authorized draining of the pond behind the dam. The water quality certificate stated that the proposed sediment removal would not violate water standards under the CWA, “provided that all of the conditions listed herein are met.” These conditions included limits on the amount of sediment petitioners could move (200 cubic yards) and the methods used to remove it, as well as a general requirement that petitioners minimize downstream turbidity and sediment accumulation. The permit explicitly noted that it did not authorize dam repairs. In July 2006, FERC authorized repair of the dam, with “the understanding that all work will be done to meet the environmental requirements as stipulated on the NYSDEC permit.” In September 2006, petitioners opened the dam’s bottom drain gate and allegedly discharged approximately 4,000 cubic yards of sediment into the river.

DEC commenced an enforcement proceeding by notice of hearing and administrative complaint on November 10, 2006, alleging several violations of the ECL. The first two causes of action allege that Chasm violated ECL 17-0501 and 6 NYCRR 703.2 by discharging sediment, sand, and paint into the river. The third cause of action alleges that Chasm violated ECL 15-0501 (1) and its stream disturbance permit by disturbing and removing material from the riverbed. The fourth cause of action alleges that Chasm further violated section 15-0501 (1) by depositing sediment in the river without a stream disturbance permit. The fifth cause of action alleges that Chasm engaged in dam repair without a permit, in violation of ECL 15-0503 (1). Finally, the sixth cause of action alleges that Chasm discharged substances injurious to fish, in violation of ECL 11-0503 (1).

Petitioners commenced this CPLR article 78 proceeding seeking to enjoin DEC’S action as extra-jurisdictional, and DEC cross-moved for dismissal of the petition. Supreme Court dismissed the petition, finding the issue “not ripe for review,” and noted that petitioners’ preemption arguments would be fully addressed in the administrative proceeding and any resulting appeals. The Appellate Division unanimously affirmed, determining that DEC has authority to regulate petitioners’ activity in order to protect water quality (58 AD3d 1100 [2009]). We granted leave to appeal (12 NY3d 710 [2009]) and now affirm on different grounds.

Petitioners contend that DEC’s authority over a federally regulated dam is preempted by federal law and that DEC is therefore proceeding in excess of its jurisdiction (see Matter of Niagara Mohawk Power Corp. v New York State Dept. of Envtl. Conservation, 82 NY2d 191, 193-194 [1993]). In response, DEC argues that, because CWA § 401 (d) authorizes it to enforce violations of New York’s water quality standards (33 USC § 1341 [d]), it is acting within its authority by bringing this administrative enforcement proceeding against Chasm. We conclude that petitioners have failed to meet their heavy burden, as they have not established a clear legal right to relief or that prohibition would provide a “more complete and efficacious remedy” than the administrative proceeding and resulting judicial review (Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786 [1993]; accord Matter of City of New-burgh v Public Empl. Relations Bd. of State of N.Y., 63 NY2d 793, 795 [1984] [“prohibition does not lie against an administrative agency if another avenue of judicial review is available, absent a demonstration of irreparable injury to the applicant”]).

Petitioners have not clearly established that DEC’s enforcement action is in excess of its jurisdiction. Whether these causes of action fall within the State’s power to “ determine [ ] that construction and operation of the project as planned would be inconsistent with one of the designated uses” of the water (PUD No. 1 of Jefferson Cty. v Washington Dept. of Ecology, 511 US 700, 714 [1994]) should be determined, in the first instance, through the administrative process. In addition to the issues raised before this Court, the administrative proceeding should address whether the dam, as an exempt project, should be treated the same as a licensed project for the purpose of preemption analysis.

The courts below properly dismissed the article 78 petition. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed, with costs.

       FERC grants case-specific exemptions from licensing to small hydroelectric projects of five megawatts or less (18 CFR 4.30).


author: Ciparick, J. Jones, J. (dissenting). Smith, J. (dissenting).

text:
    [923 NE2d 1099, 896 NYS2d 711]
    The People of the State of New York, Appellant, v Juwanna Wrotten, Respondent.
    Argued November 17, 2009;
    decided December 15, 2009

      POINTS OF COUNSEL

      Robert T. Johnson, District Attorney, Bronx (Peter D. Codding-ton and Hannah E.C. Moore of counsel), for appellant.
    Nisi prius correctly permitted the complainant to testify via live, two-way television in a criminal trial. (People v Cintron, 75 NY2d 249; Coy v Iowa, 487 US 1012; Maryland v Craig, 497 US 836; United States v Moses, 137 F3d 894; United States v Weekley, 130 F3d 747; United States v Turning Bear, 357 F3d 730; United States v Rouse, 111 F3d 561; United States v Etimani, 328 F3d 493; United States v Miguel, 111 F3d 666; United States v Quintero, 21 F3d 885.)

      Office of the Appellate Defender, New York City (Daniel A. Warshawsky, Richard M. Greenberg and Anastasia B. Heeger of counsel), for respondent.
    I. In allowing the complainant to testify against Juwanna Wrotten via two-way television, the trial court exceeded its authority, made a substantive policy determination that only the Legislature could make, and violated the Criminal Procedure Law, and Ms. Wrotten is therefore entitled to a new trial. (Maryland v Craig, 497 US 836; People v Cintron, 75 NY2d 249; Bourquin v Cuomo, 85 NY2d 781; Cohen v State of New York, 94 NY2d 1; Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1; People v Ricardo B., 73 NY2d 228; People v Mezon, 80 NY2d 155; People v Ayala, 75 NY2d 422; Farrington v Pinckney, 1 NY2d 74; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407.) II. The two-way video testimony of the complainant violated Juwanna Wrotten’s right to confrontation under the United States and New York Constitutions and, where no important public policy justified the court’s decision to permit the complainant to testify in that manner, Ms. Wrotten’s conviction must be reversed. (Maryland v Craig, 497 US 836; People v Cintron, 75 NY2d 249; Ohio v Roberts, 448 US 56; Crawford v Washington, 541 US 36; Coy v Iowa, 487 US 1012; Pointer v Texas, 380 US 400; United States v Bordeaux, 400 F3d 548; United States v Yates, 438 F3d 1307; United States v Gigante, 166 F3d 75; Gentry v Death, 381 F Supp 2d 614, 456 F3d 687.) III. Where evidence adduced at trial by Juwanna Wrotten tended to establish that she had employed only non-deadly physical force against the complainant, and that she had only employed that force to repel the complainant’s attack against her, the court erred in failing to charge the jury with a justification defense under Penal Law § 35.15 (1). (People v Butts, 72 NY2d 746; People v Petty, 7 NY3d 277; People v McManus, 67 NY2d 541; People v Rivera, 138 AD2d 169; People v Padgett, 60 NY2d 142; People v Spittler, 168 AD2d 919; People v Wesley, 76 NY2d 555; People v Ogodor, 207 AD2d 461; People v Jones, 148 AD2d 547.)

      Richard D. Willstatter, New York City, and Murray E. Singer,
      Great Neck, for New York State Association of Criminal Defense Lawyers, amicus curiae.
    The trial court lacked the authority to permit the complainant to testify from another state by means of a live, two-way television transmission.
   OPINION OF THE COURT

Ciparick, J.

In People v Cintron (75 NY2d 249 [1990]), we upheld the use of two-way televised testimony of a vulnerable child witness and concluded that no violation of either the Federal or State Constitution existed. On this appeal, we are asked to determine whether Supreme Court erred in permitting an adult complainant living in another state to testify via real-time, two-way video after finding that because of age and poor health he was unable to travel to New York to attend court. We conclude that Supreme Court did not err, as the court’s inherent powers and Judiciary Law § 2-b vest it with the authority to fashion a procedure such as the one employed here. Furthermore, we conclude that defendant’s confrontation rights have not been unconstitutionally impaired.

In June 2003, defendant, a home health aide, was with 83-year-old complainant at his home in the Bronx. They were making food to bring to complainant’s wife, who was in a nursing home. According to complainant, defendant suddenly hit him from behind with a hammer and demanded money, which he gave her. According to defendant, she hit complainant with “something” only after he grabbed her breast, and she neither asked for nor received money. Complainant suffered five head wounds and two broken fingers. Shortly after the incident, he moved to California to be near his children. Defendant was indicted for assault in the first degree and two counts of robbery in the first degree.

Prior to trial, the People sought and were granted a conditional examination of complainant pursuant to CPL 660.20. This examination proved unfeasible, however, because CPL article 660 requires that the examination be conducted in New York State and complainant was unable to travel. The People then requested that the conditional examination be allowed to proceed via two-way video conferencing, with the witness remaining in California and the commissioners conducting the examination in New York. Supreme Court granted the relief sought, but required that complainant’s video appearance be live at trial and that the People first demonstrate that the witness would otherwise be unavailable to testify in New York.

After a hearing at which both the People and the defendant presented expert medical testimony, the court, crediting the People’s experts, held that complainant—at that time 85 years old, frail, unsteady on his feet, and with a history of coronary disease—could not travel to New York without endangering his health, and was therefore unavailable. At trial, complainant testified live from a courtroom in California via two-way video, appearing “on screen.” He stated that he could see the judge, prosecutor, defense counsel, defendant, and jury. The judge stated that the witness could be seen “very clearly,” including “any expressions on his face.”

Defendant was convicted of second degree assault only. On appeal, a divided Appellate Division reversed and vacated the conviction, holding that, in the absence of any express legislative authorization, Supreme Court lacked authority to permit the admission of televised testimony (People v Wrotten, 60 AD3d 165, 167 [1st Dept 2008]). The dissent concluded that Supreme Court retained discretion under its inherent powers and Judiciary Law § 2-b (3) to utilize this new procedure without legislative authorization (Wrotten, 60 AD3d at 192). A Justice of that court granted leave to appeal and we now reverse.

Although the Legislature has primary authority to regulate court procedure, “the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute” (People v Ricardo B., 73 NY2d 228, 232 [1989]). By enacting Judiciary Law § 2-b (3), the Legislature has explicitly authorized the courts’ use of innovative procedures where “necessary to carry into effect the powers and jurisdiction possessed by [the court].” Thus, as we have acknowledged, courts may fashion necessary procedures consistent with constitutional, statutory, and decisional law (see Ricardo B., 73 NY2d at 232-233 [a trial court has authority to empanel two juries, despite clear statutory references to a single jury and no statutory authorization for multiple juries]).

Unable to find any explicit statutory prohibition regarding two-way televised testimony at trial, defendant argues that extant statutes implicitly preclude its admission. However, there is no specific statutory authority evincing legislative policy proscribing televised testimony. Indeed, the CPL requires live video testimony of a child witness in a prosecution of a sex crime after a judicial finding of “vulnerability” (CPL 65.00-65.30). The CPL is silent as to other types of witnesses, like complainant here whom the trial court found to be elderly, infirm, and physically incapable of appearing in court. Because article 65 addresses only a single, discrete circumstance and otherwise leaves courts’ preexisting authority unaffected (CPL 65.10 [3] [“(n)othing herein shall be construed to preclude the court from exercising . . . any authority it otherwise may have to protect the well-being of a witness and the rights of the defendant”]), such witnesses’ testimony via two-way televised transmission is presumably left to the trial court’s discretion.

Neither do the statutes providing for preservation of pretrial testimony implicitly preclude the admission of live video testimony. CPL article 680 permits testimony taken by “examination on a commission” outside New York on defendant’s application to be received as evidence at trial (CPL 680.10, 680.20). CPL article 660 allows either party to secure testimony—including videotaped testimony—for subsequent use in a case where the witness will be unavailable for trial (CPL 660.10, 660.20). These statutes do not speak to the permissibility of real-time video testimony subject to cross-examination in front of a jury. Nowhere does the CPL purport to list all instances where live video testimony is permissible or all possible solutions to the problem of an unavailable witness. Supreme Court, acting pursuant to its inherent powers as defined in the New York Constitution and Judiciary Law, was therefore not precluded from exercising its authority to utilize necessary, extrastatutory procedures.

Moreover, the exercise of this authority following a finding of necessity is permissible under the Confrontation Clauses of both the Federal and State Constitutions. We held in Cintron that CPL article 65’s authorization of two-way closed-circuit testimony in a criminal trial passes constitutional muster (75 NY2d at 253). Soon after, the United States Supreme Court held that live testimony via one-way closed-circuit television is permissible under the Federal Constitution, provided there is an individualized determination that denial of “physical, face-to-face confrontation” is “necessary to further an important public policy” and “the reliability of the testimony is otherwise assured” (Maryland v Craig, 497 US 836, 850 [1990]). Thus, assuming without deciding that two-way video does not always satisfy the Confrontation Clause’s “face-to-face meeting” requirement (cf. United States v Gigante, 166 F3d 75, 81 [2d Cir 1999] [not applying the Craig standard because the trial court’s use of two-way video “preserved the face-to-face confrontation”]), complainant’s testimony would nonetheless be admissible under the federal standard if findings of necessity and reliability were made by the trial court.

Live two-way video may preserve the essential safeguards of testimonial reliability, and so satisfy the Confrontation Clause’s primary concern with “ensuring] the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact” (Craig, 497 US at 845). Essential to the holding in Craig was that “all of the other elements of the confrontation right” were preserved, including testimony under oath, the opportunity for contemporaneous cross-examination, and the opportunity for the judge, jury, and defendant to view the witness’s demeanor as he or she testifies (id. at 851). These traditional indicia of reliability were all present in this case.

Additionally, if Supreme Court’s findings were supported by clear and convincing evidence, Craig’s public policy requirement is satisfied here. Nowhere does Craig suggest that it is limited to child witnesses or that a “public policy” basis for finding necessity must be codified. Indeed, federal courts have permitted live video testimony in a variety of circumstances, including instances where public policy is implicated by a key witness too ill to appear in court (see e.g. Horn v Quarterman, 508 F3d 306, 317-318 [5th Cir 2007] [denying habeas relief where state court admitted two-way video testimony of witness too ill to travel]; United States v Benson, 79 Fed Appx 813 [6th Cir 2003] [permitting the two-way video testimony of an elderly witness too ill to travel]; United States v Gigante, 166 F3d 75, 79 [2d Cir 1999] [permitting two-way video testimony of a key prosecution witness too ill to travel]). Other states have likewise allowed the admissibility of two-way video testimony. We agree that the public policy of justly resolving criminal cases while at the same time protecting the well-being of a witness can require live two-way video testimony in the rare case where a key witness cannot physically travel to court in New York and where, as here, defendant’s confrontation rights have been minimally impaired.

Live televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness’s presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances. We do not decide here whether Supreme Court’s finding of necessity rested on clear and convincing evidence, as the Appellate Division did not address that question. We only pass on whether Supreme Court had authority to utilize a procedure “necessary to carry into effect the powers and jurisdiction possessed by it” (Judiciary Law § 2-b [3]). As the dissent below correctly noted, “[i]n the absence of direction from the Legislature, Supreme Court retained discretion ... to determine what steps, if any, could be taken to permit this prosecution to proceed notwithstanding the complaining witness’s inability to be physically present in the courtroom” (Wrotten, 60 AD3d at 192).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for consideration of the facts (see CPL 470.25 [2] [d]; 470.40 [2] [b]) and all other issues raised but not determined on the appeal to that court.

Jones, J. (dissenting).

In the absence of any express legislative authorization, the trial court here lacked the authority to permit the complainant to testify from California via live two-way television. Accordingly, I dissent and would affirm the order of the Appellate Division.

The Legislature provided for the taking of testimony by live two-way television only under the limited circumstances set forth under article 65 of the Criminal Procedure Law (L 1985, ch 505), which was enacted in response to the widespread recognition that child victims of sex abuse crimes typically suffer from acute anxiety and psychological trauma when giving live testimony (see People v Cintron, 75 NY2d 249, 254 [1990] [“The legislative purpose for permitting (certain child witnesses to testify via live two-way closed-circuit television) is the avoidance of the severe mental or emotional harm that may result from requiring a child witness to testify in the public atmosphere of the courtroom concerning the intimate sexual details of the crime”]). In enacting article 65, the Legislature promulgated a comprehensive scheme

“designed to further the aim of insulating child witnesses from the trauma of testifying in open court and also, under certain conditions, from having to testify in the presence of the defendant while, at the same time, fully preserving the defendant’s constitutional rights (see Mem of Dept of Law, Bill Jacket, L 1985, ch 505, at 34-38; Preiser, 1985 Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 65.00, 1990 Supp Pamph, at 485-486)” (id.).

“The Legislature drafted article 65 with full recognition of the necessity of safeguarding a defendant’s confrontation rights and with the explicit aim of providing sufficient limitations and protections to meet the constitutional requirements” (id. at 260, citing Mem of Dept of Law and numerous other memoranda in support, Bill Jacket, L 1985, ch 505). Further, the Legislature explicitly detailed that (1) article 65 applies only in prosecutions for incest or sex crimes under article 130 of the Penal Law where the testifying witness is 14 years of age or younger and found to be vulnerable to psychological harm if compelled to testify in the presence of the defendant, (2) in order for a child witness to be declared vulnerable (in such case, trial court must permit the televised testimony), the trial court must “determine[ ] by clear and convincing evidence that the child witness would suffer serious mental or emotional harm that would substantially impair the child witness’ ability to communicate with the finder of fact without the use of live, two-way closed-circuit television” (CPL 65.20 [2]), and (3) a trial court, in considering a vulnerability application, may consider whether any one or more of 12 enumerated circumstances have been established by clear and convincing evidence (see CPL 65.20 [10]).

In this case the trial court allowed the televised testimony based on its finding that the People established by clear and convincing evidence that complainant was unable to travel to New York without seriously endangering his health and was thus unavailable to testify. This was error.

From the exhaustive nature of the Legislature’s grant of authority permitting courts to receive televised testimony under the specific limited circumstances discussed above, there is a strong inference that the Legislature intended to exclude grants of authority under other circumstances (such as those present here). In my view, the detail that attends CPL article 65, coupled with the CPL’s silence as to other circumstances where a court may admit live two-way televised testimony, sets the parameters of the trial court’s discretion. Thus, by allowing the instant complainant’s testimony, the trial court exceeded its discretionary authority. Contrary to the majority’s suggestion, the trial court did not have “preexisting authority” (majority op at 38) to admit complainant’s testimony pursuant to CPL 65.10 (3). That provision, which must be read in the context of the child witnesses covered under article 65, speaks to a court’s inherent authority to protect the well-being of such witnesses, not the general (and amorphous) “preexisting authority” the majority speaks of According to this article’s Bill Jacket,

“[s]ection 65.10 . . . clarifies that the power to order the use of closed-circuit television in no way supplants the court’s . . . inherent authority to otherwise protect the well-being of the child. The bill leaves undisturbed the court’s power to, among other measures, allow for the presence of a person who can provide emotional support to the child witness when he or she testifies or adjust the courtroom setting to make it more comfortable and less threatening to the child witness” (Mem of Dept of Law, Bill Jacket, L 1985, ch 505, at 21).

In light of the fact that the Legislature has with painstaking detail addressed the subject of when certain absent witnesses can testify by means of two-way television, Judiciary Law § 2-b (3) cannot serve as the basis for granting trial courts the authority to receive such testimony. Section 2-b (3) authorizes a court of record to create new procedures “necessary to carry into effect the powers and jurisdiction possessed by [the court].”

However, it does not authorize a court to fashion a procedure that is inconsistent with existing law. Nor does it authorize a court to disregard the critical policy decisions already made by the Legislature. In reversing the Appellate Division, the majority, under the guise of upholding the inherent powers of the courts, has recognized a trial court ruling that is wholly inconsistent with article 65 (the existing law) and accorded no weight to the substantive policy choices made by the Legislature. Under the circumstances of this case, therefore, section 2-b (3) is inapposite.

If the inherent powers of the courts are sufficient to authorize the televised testimony in this case or, as stated by the majority, allow a trial court to make a “finding of necessity” (majority op at 38) regarding such testimony, these powers necessarily represent a broad source of authority that would permit trial courts to use live, two-way, televised testimony in ways not contemplated under article 65. That is, there would have been no need for the Legislature to enact article 65 in the first place. For example, a court, under its inherent powers, could be authorized to use such testimony in cases where it would be medically unsafe for any witness, regardless of age or where the witness resides, to travel to the particular New York court where the criminal matter is pending.

In addition, the majority’s use of the phrase “finding of necessity” is confusing. If the majority is arguing that allowing complainant’s testimony was “necessary to carry into effect the powers and jurisdiction possessed by [the court]” (Judiciary Law § 2-b [3]), that argument fails because the majority has not established, outside the circumstances prescribed in CPL article 65, that trial courts have the authority (discretionary or otherwise) to admit the testimony at issue. If the majority is arguing that allowing such testimony furthers an important public policy, they are necessarily referring to a policy decision the Legislature has not to this point made.

Moreover, the majority’s view of the courts’ inherent powers presents a number of problems. First, there does not appear to be any discernible limitation, within the inherent powers of the courts, on a court’s authority to allow the admission of an absent witness’s televised testimony as long as it is “necessary to carry into effect the powers and jurisdiction possessed by [the court]” (Judiciary Law § 2-b [3]). Second, what happens when individual courts, on similar facts, reach different conclusions as to whether to allow the admission of televised testimony or some other subject pertaining to the State’s public policy? Third, it appears that the majority’s ruling effectively circumscribes the Legislature’s role by allowing trial courts to (a) determine issues with public policy implications on a case by case basis and (b) create procedural rules for the sole purpose of allowing prosecutions to proceed (in direct contravention to state law).

In sum, because there was no express legislative authorization permitting the complainant to testify from California via live two-way television, the trial court here lacked the authority to admit complainant’s testimony.

Smith, J. (dissenting).

I join Judge Jones’s dissent, but add my own because I think that the majority’s opinion is wrong on the constitutional issue as well as the statutory one.

Article I, § 6 of the New York State Constitution (“In any trial in any court whatever the party accused shall ... be confronted with the witnesses against him or her”) and the Sixth Amendment to the United States Constitution (“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him”) protect the right of confrontation. (I assume here that the content of the state and federal rights is the same; I know of no authority holding otherwise.) If, as the majority holds, what happened in this case is permissible under the Criminal Procedure Law, the constitutional questions presented are whether defendant was denied her right of confrontation and if so whether there is an adequate excuse for the denial. I answer yes to the first question and no to the second.

The right of confrontation includes—indeed, is, at its core— the right to meet one’s accuser face to face (Coy v Iowa, 487 US 1012, 1016 [1988]). Neither our Court nor the United States Supreme Court has held, and I would not now hold, that a two-way-television encounter is “face to face” in this sense. The assumption underlying the constitutional right of confrontation is that a witness brought into the presence of the accused will be less likely to swear to a false accusation, or to do so convincingly (id. at 1019). The point of confrontation is thus the psychological effect it has on the witness. That effect is, beyond question, substantially diluted when, though the witness and the accused can see each other, the witness knows that the accused is far away. I therefore conclude that defendant in this case was not permitted to “confront” her accuser in the constitutional sense, and I would reject so much of United States v Gigante (166 F3d 75, 80-81 [2d Cir 1999]) as may be read to hold otherwise.

That conclusion does not resolve the case, because we held in People v Cintron (75 NY2d 249 [1990]) and the United States Supreme Court held in Maryland v Craig (497 US 836 [1990]) that the right of face to face confrontation is not absolute, and may be denied where “an appropriate individualized showing of necessity is made” (Cintron, 75 NY2d at 258)—or, as the Supreme Court put it, where “denial of such confrontation is necessary to further an important public policy” (Craig, 497 US at 850). But Cintron and Craig involved child victims in sexual assault cases, and presented a far more compelling case than this one for making an exception to the right of confrontation.

In Cintron and Craig, the harm to be avoided—emotional trauma to a child—would be caused by the confrontation itself; there was no way to avoid the harm except by dispensing with face to face confrontation. Here, the threatened harm is to the health of an elderly witness from the stress of travel, and there is a way to avoid that harm without depriving defendant of her confrontation right: bring the accused to the witness, instead of bringing the witness to the accused. In other words, the dilemma could be resolved by allowing the deposition or conditional examination of the complainant to be taken in California, with defendant present. It may well be that that solution is not available under New York’s statutes, but this does not affect the constitutional analysis. New York cannot deprive defendant of her constitutional right by its Legislature’s choice not to provide for a way of accommodating both that right and the witness’s legitimate interest.

Thus, while I agree with Judge Jones that the Appellate Division’s reversal of defendant’s conviction on statutory grounds—a result that has the virtue of avoiding the constitutional issue—was correct, I also believe that, if the constitutional issue is reached, we should decide it in defendant’s favor.

Judges Graffeo, Read and Pigott concur with Judge Ciparick; Judge Jones dissents and votes to affirm in a separate opinion in which Judge Smith concurs; Judge Smith dissents in another dissenting opinion; Chief Judge Lippman taking no part.

Order reversed, etc.

      . The People alternatively sought to examine the complaining witness upon commission in California pursuant to CPL 680.20 and 680.30. This relief was denied because the statute provides that such commission is available only upon the application of a defendant (CPL 680.30).

      . Article 65 mandates that, on the motion of either party, a court must consider evidence of a child witness’s vulnerability and, if the court finds the child to be vulnerable, it must permit video testimony (CPL 65.00-65.30).

      . See e.g. Bush v State (193 P3d 203, 215-216, 2008 WY 108, ¶ 52 [2008] [approving live video testimony of a witness too ill to travel to court in Wyoming]); State v Sewell (595 NW2d 207, 210 [Minn Ct App 1999] [approving live video testimony of a witness too ill to travel to court in Minnesota]); Harrell v State (709 So 2d 1364, 1368-1371, 23 Fla L Wkly 236 [1998] [approving live video testimony where witnesses could not travel to court in Florida, in part because of one witness’s ill health]).

       The level of specificity employed by the Legislature in enacting article 65 and addressing when witnesses can testify outside the courtroom (by depositions, conditional examinations [CPL article 660] and examinations on commission [CPL article 680]) implies that similar activities not specifically authorized are forbidden.


author: Read, J.

text:
    [924 NE2d 336, 897 NYS2d 382]
    In the Matter of City of New York et al., Appellants, v Patrolmen’s Benevolent Association of the City of New York, Inc., et al., Defendants, and Sergeants’ Benevolent Association of the City of New York et al., Respondents.
    Argued November 18, 2009;
    decided December 17, 2009

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein and Larry A. Sonnenshein of counsel), for appellants.
    The New York City Charter and Administrative Code grant the New York City Police Department Commissioner full disciplinary authority of the department. Therefore the Commissioner has full authority to both institute hair drug testing procedures to uncover individual or systemic corruption and to investigate accusations of malfeasance. The City Board of Collective Bargaining erred when it determined that the Commissioner’s disciplinary authority was limited and he was required to engage in collective bargaining before instituting drug testing by hair in order to maintain the discipline and good order of the department. (Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 13 AD3d 879, 6 NY3d 563; People ex rel. Masterson v French, 110 NY 494; Matter of De Boer v Looney, 60 Misc 2d 673; Matter of Di Lauria v Police Commrs. of Town of Harrison, 285 AD2d 464; Matter of Gamma v City of Newburgh, 277 AD2d 236; Kelley v Johnson, 425 US 238; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273;
      Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of City of Watertown v State of NY. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of City of Mount Vernon v Cuevas, 289 AD2d 674.)

      Steven D. DeCosta, General Counsel, Office of Collective Bargaining, New York City (John F. Wirenius of counsel), for New York City Office of Collective Bargaining and another, respondents.
    I. The City of New York’s fatally late and fatally flawed new evidence and new theories of the case are not properly before the Court. (Matter of Chaplin v New York City Dept. of Educ., 48 AD3d 226; Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827; Bingham v New York City Tr. Auth., 99 NY2d 355; Lichtman v Grossbard, 73 NY2d 792; Matter of County of Erie v State of N.Y. Pub. Empl. Relations Bd., 12 NY3d 72; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273; People v Rossi, 70 AD2d 575; Livoti v Mallon, 92 AD2d 532; W.G. & Assoc., LLC v A. Aleem Constr., Inc., 33 AD3d 387; DeSoignies v Cornasesk House Tenants’ Corp., 21 AD3d 715.) II. The Appellate Division properly interpreted the Civil Service Law, the New York City Charter and Administrative Code to reach a result consistent with this Court’s prior holdings, especially Matter of Patrolmen’s Benevolent Assn. of City of N. Y, Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006]). (Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268; Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 NY3d 465; Horn v New York Times, 100 NY2d 85; Wieder v Skala, 80 NY2d 628; People ex rel. Masterson v French, 110 NY 494; Matter of Von Essen v New York City Civ. Serv. Commn., 4 NY3d 220; Matter of City of Mount Vernon v Cuevas, 289 AD2d 674; Matter of Montella v Bratton, 93 NY2d 424; Matter of Lynch v Giuliani, 301 AD2d 351.)

      Certilman Balin Adler & Hyman, LLP, East Meadow (Candace Reid Gladston, Michael C. Axelrod and Donna-Marie Korth of counsel), for Sergeants’ Benevolent Association of the City of New York, Inc., and others, respondents.

      Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006]) does not foreclose bargaining over prophylactic random drug testing procedures. (Matter of Montella v Bratton, 93 NY2d 424; Matter of City of New York v MacDonald, 201 AD2d 258; Matter of Scornavacca v Leary, 38 NY2d 583; Police Benevolent Assn. of N.Y. State Troopers, Inc. v Division of N.Y. State Police, 11 NY3d 96; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; People ex rel. Masterson v French, 110 NY 494; People ex rel. Hogan v French, 119 NY 493; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273; Matter of County of Erie v State of N.Y. Pub. Empl. Relations Bd., 12 NY3d 72.)
   OPINION OF THE COURT

Read, J.

In January 2005, the New York City Police Department (NYPD) informed representatives of various police unions, including the Detectives Endowment Association (DEA), Patrolmen’s Benevolent Association (PBA), Sergeants’ Benevolent Association (SBA), and Captains Endowment Association (CEA) (collectively, the unions), that it intended to use a methodology for hair testing known as radioimmunoassay (hereafter, RIAH or hair analysis) for all drug screening of uniformed members, beginning the following summer. The unions protested that this decision was subject to collective bargaining. We disagree: the Police Commissioner’s disciplinary authority over the NYPD vests him with discretion to choose the scientific methodology to be used for drug testing, and the circumstances prompting testing; i.e., so-called testing triggers.

I.

At the time this dispute began to take shape, drug testing of uniformed members was governed by several Patrol Guide Procedures (PGP), effective January 1, 2000, two of which called for checking either urine or hair samples. Specifically, PGP No. 205-30 specified testing either the urine or hair of members reasonably suspected of illegal drug use; and PGP No. 205-35, which allowed members subject to unsubstantiated allegations of illegal drug use to request voluntary testing, provided for testing of either hair or urine samples. In addition, all probationary NYPD members received an end-of-probation medical examination, which included drug testing of hair samples. RIAH was the methodology used for hair testing.

PGP No. 205-29 addressed random drug testing, whereby an automated database was used to select uniformed members who were directed to appear at a specified time and date for testing. While this PGP did not identify urine analysis as the testing methodology, it incorporated a number of steps specific to urine testing. Four other PGPs similarly did not actually identify the method of drug testing, but referred only to the collection of urine samples: PGP No. 205-32 (covering members applying for and assigned to the Organized Crime Control Bureau); PGP Nos. 205-31 and 205-33 (covering members applying for assignment to designated specialized units); and PGP No. 205-34 (covering members applying for discretionary promotions).

Representatives of the City of New York and the unions met several times to discuss the NYPD’s plan to phase out urine analysis in favor of RIAH. At the first meeting, held on January 7, 2005 at the New York City Office of Labor Relations, the City-explained that there would be no change to existing NYPD policies regarding drug testing triggers, due process protection, and disciplinary consequences; the only modification of existing policies was the switch from urine analysis for most drug testing to RIAH for all drug testing. At a second meeting with the City on February 15, 2005, the unions asked questions and voiced concerns, and the City provided additional information about hair analysis.

By letter to the New York City Commissioner of Labor Relations, dated April 21, 2005, the unions requested an additional meeting “to continue our collective bargaining[] to discuss our concerns regarding hair follicle testing which the [NYPD] intends to implement over the summer.” On April 27, 2005, the Commissioner sent the unions a copy of a planned Finest Message from the NYPD’s Chief of Personnel, addressed to all commands. The cover letter identified the Finest Message as “the Police Department’s drug testing policy regarding the use of hair analysis,” and stated that “[a]s previously discussed, the City is providing you with a copy of this policy in advance of its August 1, 2005 implementation.”

The subject of the enclosed Finest Message was “Expanding the Use of Hair Analysis as a Means of Drug Screening Uniformed Members of the Service.” It began by explaining that effective August 1, 2005, the NYPD would

“expand the use of hair analysis as a means of drug screening uniformed members of the service.
Beginning on that date, the [NYPD] will use hair analysis in lieu of the current practice of using urine analysis to conduct random drug screening as well as for promotional drug screening. Hair analysis drug screening will also be used for uniformed members applying for assignment to designated specialized units.”

The Finest Message set out the protocol for collecting hair samples, and gave an assurance that appropriate chain-of-custody procedures would be followed; asserted that the NYPD had used hair analysis when testing for cause and at the end of probation since May 1995 and February 1996 respectively; and provided the following rationale for the changeover from urine analysis in most cases to RIAH in all cases:

“Hair analysis provides a window of detection of approximately ninety (90) days, compared with a relatively shorter window with urine analysis, and thereby provides a more effective method of detection. In addition, hair analysis cannot be evaded in the same fashion as urine analysis, where drug users can attempt to substitute clean specimens, or merely abstain from drug use for a few days, and pass the screening test. Furthermore, drug residues remain permanently embedded in the hair—they cannot be washed or bleached out.”

Finally, the Finest Message suspended any conflicting provisions of the NYPD’s manual or other directives.

Letters in the record from the Deputy Commissioner of the NYPD to the unions, dated June 6, 2005, indicate that City and union representatives met on June 1, 2005 to discuss further “the NYPD’s planned implementation of Hair Testing for [its] random drug screening program” and, according to the City, to address each of the unions’ outstanding concerns. These letters included as an enclosure a list of laboratories approved by the New York State Department of Health to conduct hair analysis “for reference only and pursuant to discussions at [the June 1st] meeting.” On August 1, 2005, the NYPD issued the same Finest Message supplied to the unions on April 27th.

On August 26, 2005, the DEA filed an improper practice petition on behalf of itself, the PBA and the SBA to commence proceedings before the Board of Collective Bargaining (the Board), a constituent body of the New York City Office of Collective Bargaining (OCB) (see New York City Collective Bargaining Law [NYCCBL] [Administrative Code of City of NY] § 12-306; Rules of NY City Office of Collective Bargaining [61 RCNY] §§ 1-07, 1-12). This petition generally alleged that the NYPD violated NYCCBL § 12-306 (a) (4) by unilaterally changing its policy regarding drug testing. The CEA filed an improper practice petition on November 7, 2005, which is described in the record as essentially identical to the earlier DEA petition.

The CEA alleged in its petition that the “procedures used by the [NYPD] in implementing a decision to conduct drug testing on employees [were] mandatory subjects of bargaining.” The CEA petition does not define what the word “procedures” is meant to encompass, but refers to “ ‘testing methodology, choice of laboratory, collection procedures, chain of custody, sample screening, conditions for retesting, and reporting and recording of test results’ ” (quoting Matter of District Council 37, AFSCME, AFL-CIO [New York City Emergency Med. Serv. of N.Y. City Health & Hosps. Corp.], 57 OCB 16 [BCB 1996] [Decision No. B-16-96], at 15 [following Matter of Nassau County Police Benevolent Assn. (County of Nassau), 27 PERB ¶ 3054 (1994)]). The singular thrust of the CEA petition is that the NYPD engaged in an improper practice by “using RIAH exclusively in lieu of urine analysis to conduct random drug screening,” and/or “implementing ... an expansion of RIAH testing”—i.e., by unilaterally changing the methodology for drug testing employees who were not under any suspicion of wrongdoing.

In its answer to the CEA petition, the City responded generally that there had been no change in its long-standing “procedures” for hair testing, and that the “decision to expand hair testing primarily involve[d] a basic goal or mission of the employer.” As was the case with the CEA petition itself, what the City meant by “procedures” is not entirely clear, although the City also seems to have considered this word to embrace testing methodology. In sum, the City contended that it had not unilaterally modified a term or condition of employment because the NYPD already used RIAH for drug testing, and other procedures employed for hair testing remained the same after August 1, 2005 as they had been before that date. That is, the City did not dispute that a change in drug testing procedures (however “procedures” might be defined) would give rise to an obligation to bargain with the unions; the City simply argued that there had been no change.

After the record closed in the proceedings before the Board, we issued our decision in Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006] [PBA v PERB]). In that case, we held that police discipline in New York City “may not be a subject of collective bargaining under the Taylor Law” because New York City Charter § 434 (a) and New York City Administrative Code § 14-115 (a) “expressly commit[ ] disciplinary authority over [the] police department to local officials” (id. at 570). The Board asked the parties to submit written statements to explain their respective positions on the applicability and impact, if any, of our decision.

In response, the unions took the position that PBA v PERB did not affect the duty to bargain over drug testing procedures because they “[were] not disciplinary procedures,” and “[did] not form the basis for discipline. Rather, the results of the tests, not the procedures, may form the basis for discipline.” The City countered that PBA v PERB foreclosed collective bargaining because “[t]esting procedures, testing triggers and disciplinary consequences [were] inextricably intertwined, at least in this situation, with the Police Commissioner’s disciplinary authority” under New York City Charter § 434 (a) and New York City Administrative Code § 14-115 (a). In short, the City now contended that drug testing procedures generally were disciplinary matters outside the purview of collective bargaining.

On December 4, 2006, the Board granted both petitions because it found that “even if [the] NYPD’s procedures for hair testing [were] the same [before and after August 1, 2005], the expansion of the categories of employees to whom the procedures now [were] applied constitute[d] a unilateral change in drug screening procedures” (Matter of Detectives Endowment Assn. [City of New York], 77 OCB 37 [BCB 2006] [Decision No. B-37-2006], at 16 [emphasis added]). Similarly, the Board characterized the issue before it as “whether [the] NYPD’s adoption of RIAH (hair) testing as the prescribed mechanism of drug screening under circumstances in which, prior to August 1, 2005, [the] NYPD tested only urine, constitute^] a unilateral change in a mandatory subject of bargaining,” and concluded that it did (id. at 12). That is, the Board decided that an expansion of categories subject to testing (i.e., the adoption of additional testing triggers) and a change in testing methodology were subject to collective bargaining.

In reaching these conclusions, the Board relied on County of Nassau (supra), the “leading decision” of the New York State Public Employment Relations Board (PERB) on the topic of drug testing (id.). In County of Nassau, PERB opined that there was a “clear distinction between an employer’s decision to drug test employees and the procedures used to implement that decision, including the consequences of the testing.” As a result of this “clear distinction,” PERB held that an employer’s choice to conduct drug testing might not be a mandatory subject of bargaining, but that the procedures to implement that choice most certainly were. Further, PERB classified both the particular scientific methodology to be utilized for drug testing and testing triggers as “procedures.”

Finally, the Board was not persuaded that our decision in PBA v PERB called for a different outcome. As the Board put it,

“[t]he procedural matters raised by the Unions, specifically, testing methodology, choice of laboratory, collection procedures, chain of custody, sample screening, conditions for re-testing, and reporting and recording of test results, are not implicit parts of the disciplinary process. As the Unions point out, the procedures for drug testing are utilized before any basis for discipline is determined by the Commissioner to exist . . . [T]he decision to conduct drug testing, like the decision to impose discipline, is a management right . . . not subject to bargaining; but . . . , unlike the matter of discipline, there is no statutory or policy basis to remove the procedures by which drug testing is to be conducted from within the scope of mandatory collective bargaining” (77 OCB 37, at 20).

There was a dissent to the Board’s decision on dual grounds: that the NYPD had not materially changed its drug testing procedures; and that the Board’s decision was “fundamentally irreconcilable” with PBA v PERB (.Matter of Captains Endowment Assn., dissenting op at 3). As for the former ground, the dissent noted that all NYPD uniformed members were already subject to hair testing, because that method had been used for end-of-probation, reasonable suspicion and voluntary drug screening. As a result, “[a]ll that ha[d] changed [was] the relative frequency with which the NYPD use[d] hair testing as opposed to urine testing, where the employees were already subject to testing with both procedures and where the procedures themselves were already well-established” (id. at 2).

Next, the dissent observed that County of Nassau and its progeny, which were cited by the Board to support its decision, all predated PBA v PERB and, in the case of the Board’s prior decisions, did not address the Police Commissioner’s responsibility for discipline. As a result, it was

“questionable . . . whether the distinction they purported] to find between a decision to test for drugs (not mandatory) and the procedure to be utilized to test for drugs (mandatory) could now be sustained in those jurisdictions such [as] the City of New York which have a special or local law relating to police discipline” (id. at 4).

The dissent further pointed out that, with respect to PBA v PERB,

“[a]mong the proposals held to be prohibited subjects of bargaining . . . were proposals that concerned the conduct of departmental investigations of possible misconduct. These investigatory procedures [were] necessarily utilized before the Commissioner determine [d] that there [was] any basis for discipline . . . Similarly, the Commissioner’s random drug tests are [to be] conducted for the purpose of investigating the possible misconduct of officer use of an illicit drug . . . The investigatory procedures utilized—whether interrogation procedures or biochemical assays—are an element of the Commissioner’s disciplinary decisions, and as such, under [PBA v PERB], are not proper subjects of bargaining” (id. at 5).

The dissent concluded by observing that the City had, for years, maintained two drug testing procedures (RIAH and urine analysis), applicable to all of the employees represented by the unions; thus, “[t]he decision to shift from predominant use of one test to predominant use of the other plainly [did] not constitute a material change in terms or conditions of employment, and it [was] clearly an exercise of the Commissioner’s authority over discipline” (id. at 6).

In January 2007, the City brought this CPLR article 78 proceeding to annul the Board’s decisions. In its petition, the City emphasized that hair testing is the most effective method for ferreting out illegal drug use, and that its hair testing procedures were “as related to the disciplinary process as were the investigatory interviews the Court of Appeals in [PBA v PERB] found to be prohibited collective bargaining subjects.” The City also again contended that it had not changed terms and conditions of employment because the complained-of procedures were identical to those already in effect in numerous contexts.

In a decision dated December 5, 2007, Supreme Court granted the City’s petition, annulled the Board’s decisions, and denied OCB’s cross motion to dismiss the City’s petition. According to the court, the unions, in line with County of Nassau, argued that

“while the Police Commissioner’s disciplinary authority over the police force included the right to screen officers for drug use, the expanded use of a particular testing method such as RIAH, along with the implementation of different procedures to administer the test, altered the terms and conditions of the represented officers’ employment.”

The court disagreed, reasoning that “requiring that drug screening methodologies and practices be submitted to collective bargaining seriously limits the Commissioner’s ability to effectively enforce discipline within the New York City Police Department.”

On October 16, 2008, the Appellate Division reversed Supreme Court’s judgment on the law; reinstated the Board’s decision; denied the City’s petition; and dismissed the proceeding. The court reasoned that the expanded use of hair testing “does not implicate the Police Commissioner’s discretion to conduct an investigation into an alleged infraction by a member of the force, a prerogative that arises only after written charges have been preferred” (Matter of City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., Inc., 56 AD3d 70, 76 [1st Dept 2008] [emphasis added]). The Appellate Division concluded that “no persuasive policy reason ha[d] been advanced to require [OCB] to depart from its prior decisions, which . . . consistently found that routine drug screening procedures are a mandatory subject of collective bargaining” (id. at 71). We subsequently granted leave to appeal (12 NY3d 707 [2009]), and now reverse.

II.

The Taylor Law requires public employers to collectively bargain over “terms and conditions of employment of the public employees” (Civil Service Law § 204 [2]). We have long recognized the “strong and sweeping policy of the State to support collective bargaining under the Taylor Law” (.Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778 [1976]). There exists a “presumption . . . that all terms and conditions of employment are subject to mandatory bargaining” (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, 79 [2000]). Nonetheless, “some subjects are excluded from collective bargaining as a matter of policy, even where no statute explicitly says so” (PBA v PERB, 6 NY3d at 572). In PBA v PERB, we concluded that New York City Charter § 434 (a) and Administrative Code of the City of New York § 14-115 (a), originally enacted as state statutes, “state the policy favoring management authority over police disciplinary matters in clear terms” and “express a policy so important that the policy favoring collective bargaining should give way” (id. at 576).

The DEA and the SBA, the two unions remaining in this litigation, essentially ask us to endorse County of Nassau and to opine generally that the Police Commissioner’s decision to drug test uniformed officers is a managerial prerogative, but the “procedures” to implement his decision are mandatorily negotiable. There are two problems with this approach. First, the Police Commissioner’s authority under New York City Charter § 434 (a) and Administrative Code § 14-115 (a) was not implicated in County of Nassau; second, the only “procedures” that the DEA and SBA challenged or the Board addressed in this case were testing methodology and testing triggers. The record admits no possibility of misunderstanding on this score, as the detailed discussion of it in Part I illustrates. Specifically, the narrow issue decided by the Board, and therefore the only issue properly before us for review, is “whether [the] NYPD’s adoption of RIAH (hair) testing as the prescribed mechanism of drug screening under circumstances in which, prior to August 1, 2005, [the] NYPD tested only urine, constitute[d] a unilateral change in a mandatory subject of bargaining” (Matter of Detectives Endowment Assn., supra at 12). In light of our decision in PBA v PERB, we conclude that it does not.

The Police Commissioner’s disciplinary authority under sections 434 (a) and 14-115 (a) is not limited to the formal disciplinary process; i.e., situations where allegations of misconduct have been made or are being adjudicated against identified officers. Our decision in PBA v PERB did not say this. Indeed, two of the five subjects covered by the expired collective bargaining agreement at issue in PBA v PERB—the length of time a police officer could confer with counsel before being questioned in a departmental investigation and guidelines for interrogation of police officers—preceded the lodging of any charges.

Moreover, the detection and deterrence of wrongdoing within the NYPD—particularly crimes, such as illegal drug use—is a crucial component of the Police Commissioner’s responsibility to maintain discipline within the force. And both the Board and the unions concede that the Commissioner may unilaterally institute drug testing of uniformed officers. They would, however, check his discretion to select the investigatory measures that he deems most effective to discover and deter illegal drug use by requiring collective bargaining over testing methodology and testing triggers. In our view, however, these subjects are inextricably intertwined with the Commissioner’s authority to conduct drug testing in the first place; they are not ancillary or tangential to his disciplinary authority. As Supreme Court put it

“if the Commissioner is not at liberty to use a particular drug test even after determining that [it] would be more effective at exposing drug use among police officers, then his ability to carry out his disciplinary ‘authority’ has been significantly limited. Similarly, decisions about when and where to use such a test—especially in the area of random testing—ha[ve] an obvious bearing [on] how effective efforts to detect drug use will ultimately be.”

Finally, we emphasize that we are answering only the discrete question posed in this case: whether drug testing methodology and testing triggers are encompassed within the Police Commissioner’s disciplinary authority and therefore are excluded from collective bargaining as a matter of policy. We are not saying that every step that the Commissioner takes or every decision that he makes to implement drug testing is excluded from bargaining. The full extent or the limits of his unilateral disciplinary authority in the context of drug testing are simply not presented on this record.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

Judges Ciparick, Graffeo, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

Order reversed, etc.

      . The City characterized its discussions with the unions as “information sharing,” not collective bargaining.

      . NYCCBL § 12-306 (a) (4) states that it is an improper practice for a public employer “to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees.”

      . The record includes a copy of only the CEA petition.

      . The only other unilateral change that the NYPD was ever alleged to have made was its designation in early 2006 of a different laboratory to perform RIAH testing of hair samples. The CEA brought up this issue in its reply to the City’s answer to its petition.

      . This opinion generally refers to the Board’s majority opinion in the DEA case only. The Board’s reasoning in the CEA decision was the same as in the DEA case. The Board did, however, address an additional question in the CEA case—i.e., “whether a change in testing laboratory [was] encompassed within mandatorily bargainable drug testing procedures” (Matter of Captains Endowment Assn. [City of New York], 77 OCB 38 [BCB 2006] [Decision No. B-38-2006], at 10; see also n 4, supra). The Board decided that it was. As noted later, the CEA has withdrawn from this litigation (see n 9, infra).

      . While pointing out the “clear distinction” between the decision to test and procedures to implement such a decision, PERB did not express an opinion in County of Nassau about the negotiability of the former because it was not an issue in the case. Thus, PERB assumed for purposes of its analysis that a public employer’s decision to test employees for drugs was not mandatorily negotiable. In discussing its own prior decisions in this case, though, OCB seems to accept the proposition that the public employer’s decision to test employees for drugs is not subject to collective bargaining. But, as was the situation in County of Nassau, the Police Commissioner’s decision at this level of generality was never an issue in this case.

      . In County of Nassau, PERB identified the following as “several separate implementation decisions” or “procedures used to implement” a public employer’s decision to drug test employees: “testing methodology, testing triggers (e.g., definition of reasonable suspicion), choice of laboratory, collection procedures, chain of custody, sample screening, conditions for retesting, reporting and recording of test results, due process protections, and disciplinary consequences” (emphasis added).

      . The Board is made up of two city representatives, two union representatives, and three impartial members. Both city representatives dissented in the CEA case. One of the city representatives recused himself in the DEA matter; the other city member dissented there, too, for the reasons set out in his dissent in the CEA case.

      . Prior to Supreme Court’s decision, the CEA withdrew its opposition to the City’s position in this litigation.

      . The PBA withdrew its appeal prior to the Appellate Division’s decision in this case.

      . The Taylor Law allows localities to establish substantially equivalent provisions and procedures, to be administered by a local version of PERB, or a mini-PERB, such as OCB (Civil Service Law § 212). Consistent with the Taylor Law, the New York City Collective Bargaining Law contains a requirement similar to Civil Service Law § 204 (2) (see NYCCBL § 12-307 [a]).

      . Section 434 (a) provides that “[t]he [police] commissioner shall have cognizance and control of the . . . discipline of the department, and of the police force of the department”; section 14-115 (a) specifies that, in cases of police misconduct, “[t]he [police] commissioner shall have power, in his or her discretion, ... to punish the offending party.”

      . We noted that “where Civil Service Law §§ 75 and 76 apply, police discipline may be the subject of collective bargaining” (PBA v PERB, 6 NY3d at 573); however, New York City Charter § 434 (a) and Administrative Code § 14-115 (a) were grandfathered pursuant to Civil Service Law § 76 (4).


author: Chief Judge Lippman.

text:
    [923 NE2d 1107, 896 NYS2d 719]
    The People of the State of New York, Appellant, v Stephen Price, Respondent.
    Argued January 6, 2010;
    decided February 11, 2010

      POINTS OF COUNSEL

      Thomas J. Spota, District Attorney, Riverhead (Thomas C. Costello of counsel), for appellant.
    The lower court erred when it dismissed the indictment on speedy trial grounds. (People v Kozlow, 31 AD3d 788, 8 NY3d 554; People v Foley, 94 NY2d 668, 531 US 875; People v Smietana, 98 NY2d 336; People v Chavis, 91 NY2d 500; People v Cortes, 80 NY2d 201; People v Correa, 77 NY2d 930; People v Warren, 81 AD2d 872; People v Clayton, 39 AD3d 873.)

      Reynolds, Caronia, Gianelli, Hagney, La Pinta & Quatela, LLP, Hauppauge (Christopher B. Abbott of counsel), for respondent.
    The indictment was properly dismissed on speedy trial grounds, as there exists no exceptional circumstance pursuant to CPL 30.30 (4) (g). (People v Smietana, 98 NY2d 336; People v Kozlow, 31 AD3d 788; People v Cortes, 80 NY2d 201; People v Warren, 81 AD2d 872, 85 AD2d 747.)
   OPINION OF THE COURT

Chief Judge Lippman.

At issue is whether the prosecution may rely on the “exceptional circumstances” exclusion contained within CPL 30.30 (4) (g) to avoid dismissal of defendant’s indictment on speedy trial grounds. We hold, as the Appellate Division did below, that the exclusion does not apply under the circumstances presented here.

On February 2, 2006, defendant was arraigned in Suffolk County on a felony complaint charging him with attempted disseminating indecent material to minors in the first degree. Defendant allegedly engaged in explicit, sexually motivated internet conversations with an undercover police officer posing as a 14-year-old girl. The communication, however, did not involve the transmission of any sexual images.

Nearly six months later, on July 25, 2006, the Second Department held in People v Kozlow (31 AD3d 788 [2006], revd 8 NY3d 554 [2007]) that a defendant may not be convicted of the above-named crime where the communications upon which the conviction is sought do not include sexual images. In light of the decision in Kozlow, the District Attorney’s office prosecuting this case—which is located within the Second Department— determined that defendant could not be indicted. The criminal complaint against defendant was, however, left pending.

On April 26, 2007, this Court reversed the Second Department in Kozlow and held that a defendant charged with the subject crime may properly be convicted of that crime “even though his communications contained no nude or sexual images” (8 NY3d at 556). Believing that our decision in Kozlow removed any barrier to the prosecution of defendant in this case, the People presented their case to the grand jury, which returned an indictment against defendant on May 30, 2007. Defendant was arraigned on that indictment on June 14, 2007, more than 16 months after he was initially arraigned on the felony complaint.

Defendant moved to dismiss the indictment on speedy trial grounds. The People opposed the motion, arguing that the interval between the Second Department’s decision in Kozlow and this Court’s reversal of Kozlow—a total of 275 days—should be excluded from the speedy trial calculation pursuant to the “exceptional circumstances” provision of CPL 30.30 (4) (g). Supreme Court granted defendant’s motion, and the Appellate Division, in the order now before us by leave of a Judge of this Court, affirmed (61 AD3d 127 [2d Dept 2009], lv granted 12 NY3d 919 [2009]).

CPL 30.30 (1) (a) requires the People to be ready for trial within six months of the commencement of a criminal action in which a felony is charged. The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded. CPL 30.30 (4) sets forth certain “periods [that] must be excluded,” and includes a catchall provision for

“other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people’s case and additional time is justified by the exceptional circumstances of the case.” (CPL 30.30 [4] [g].)

The parties here do not dispute that the People were not ready for trial within the six-month statutory limitation unless the period between the Second Department’s decision in Kozlow and this Court’s reversal in that case is deemed an “exceptional circumstance.”

We have observed that “[t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30 (4) (g),” since it is impossible to “anticipate every situation that might warrant tolling of the speedy trial time period” (People v Smietana, 98 NY2d 336, 341 [2002]). It is clear, however, that the range of the term’s application is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction (see People v Sinistaj, 67 NY2d 236, 239 [1986]; People v Worley, 66 NY2d 523, 527 [1985]). Mindful of this principal underlying purpose, we have allowed application of the exclusion only when the People for practical reasons beyond their control cannot proceed with a legally viable prosecution (see e.g. People v Washington, 43 NY2d 772 [1977]; People v Zirpola, 57 NY2d 706, 708 [1982]). Moreover, we note that, although not required, the statute’s text contemplates that the prosecutor will seek a continuance from the court where the circumstances make it impossible to proceed. The Legislature thus envisioned an approach by which the prosecutor could secure a prior judicial ruling as to exceptional circumstances rather than ask a court to apply the exclusion after the fact. This would ensure that the defendant is kept abreast of the status of his case and the charges pending against him.

Here, as the People concede, after the Appellate Division’s decision in Kozlow, there could have been no legal basis to proceed further against defendant. The criminal complaint could have been withdrawn at that juncture. Subsequently, after this Court’s reversal in Kozlow, when the prosecution again became legally viable, the People could have attempted to recommence the prosecution.

Although the circumstances presented here are unusual, they are not exceptional within the meaning of CPL 30.30 (4) (g). What is involved in the final analysis is prosecutorial inaction resulting in the prolonged pendency of a criminal complaint without any judicial intervention and any notification to defendant of the status of the proceeding. This is precisely the sort of conduct the Legislature intended to curb when it enacted CPL 30.30.

Application of the exclusion under these circumstances would permit a scenario in which a criminal complaint could pend for an open-ended and potentially lengthy period on the mere prospect that a change in the law might render it again viable. As we stated in People v Cortes (80 NY2d 201 [1992]), “[l]egal rulings are routine events in criminal trials. The fact that a particular ruling may be erroneous does not by itself transform that ruling into an ‘exceptional circumstance’ ” (id. at 211-212). Although Cortes is factually distinguishable from this case because the People could have resubmitted the case to the grand jury or appealed the order dismissing the indictment, the language of that decision is nonetheless persuasive in this context (see Smietana, 98 NY2d at 343 [Kaye, Ch. J., dissenting] [stating that the above-quoted language from Cortes “should be given (its) plain meaning”]).

To be sure, the People here were not in control of the ultimate circumstance that prevented them from being able to proceed to trial—the erroneous Appellate Division decision in Kozlow. They did, however, have control over defendant’s criminal complaint and, despite binding case law indicating that there was no legal basis to proceed against defendant for commission of the offense charged, allowed the charge to stand. The People complain that, if we do not find exceptional circumstances in this case, defendant, and others similarly situated, will enjoy immunity from prosecution based on an erroneous Appellate Division decision. While the result of our holding may in that respect be unfortunate, we have previously acknowledged that, in the context of speedy trial cases, our decisions often “transcend[ ] the issue of ... a particular defendant’s guilt or the disposition of a particular case” (People v Prosser, 309 NY 353, 361 [1955] [internal quotation marks and brackets omitted]).

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

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

Order affirmed.

       The People contend that this course of action was impossible based on our decision in People v Osgood (52 NY2d 37 [1980]). In Osgood, the felony complaint was dismissed for failure to prosecute, but the prosecutor later obtained an indictment for the same offenses charged in the felony complaint. We held that the commencement for speedy trial purposes related back to the filing of the original complaint, even though it had been dismissed. If that rule applied in this case, a subsequent indictment would have been untimely. However, the facts of Osgood are distinguishable, and the prosecutor here could have argued that it should not apply to these facts. That issue could then have been litigated through the appellate process. We have no occasion to address the issue here, however, where it is not properly presented.