text:
    [803 NE2d 375, 771 NYS2d 54]
    N.Y.A.A.D., Inc., Doing Business as Automotive Recyclers’ Association of New York, et al., Appellants, v State of New York et al., Respondents.
    Argued November 18, 2003;
    decided December 18, 2003

      POINTS OF COUNSEL

      DeGraff, Foy, Kunz & Devine, LLP, Albany (George J. Szary, Robert E. Biggerstaff, Douglas R. Kemp and Lori A. Sievers of counsel), for appellants.
    I. The Appellate Division’s decision should be reversed because chapter 161 of the Laws of 1996 contained a proviso such that failure to implement regulations as required by the proviso rendered chapter 161 void. (Matter of Livingston, 14 AD2d 264; Matter of Second Ave. M.E. Church, 66 NY 395; Farmers’ Bank of Fayetteville v Hale, 59 NY 53.) II. The Appellate Division’s decision should be reversed because the Commissioner impermissibly usurped legislative authority. (New York State Assn. of Nurse Anesthetists v Novello, 189 Misc 2d 564; State Div. of Human Rights [Valdemarsen] v Genesee Hosp., 50 NY2d 113; Boreali v Axelrod, 71 NY2d 1; Matter of Health Ins. Assn. of Am. v Corcoran, 154 AD2d 61, 76 NY2d 995.)

      Eliot Spitzer, Attorney General, Albany {Julie S. Mereson, Caitlin J. Halligan and Daniel Smirlock of counsel), for respondents.
    I. Rather than invalidating the Airbag Safety and Anti-theft Act, the Commissioner’s failure to approve organizations to certify the safety of salvaged airbags comports with the Legislature’s intent in enacting the statute. (Matter of Ellis Ctr. for Long Term Care v DeBuono, 261 AD2d 791, 93 NY2d 1037; Bingham v New York City Tr. Auth., 99 NY2d 355.) II. The effectiveness of the Airbag Safety and Anti-theft Act is not in any event conditioned upon the Commissioner’s adoption of regulations. (Matter of Campagna v Shaffer, 73 NY2d 237.)
   OPINION OF THE COURT

G.B. Smith, J.

Appellants (collectively NYAAD), vehicle dismantlers and recyclers engaged in the sale of salvaged airbags, commenced this declaratory judgment action against the State and the Commissioner of Motor Vehicles challenging the validity of the Airbag Safety and Anti-theft Act and the Commissioner’s action—or, more precisely, inaction—with respect to the Act. The issue before this Court is whether the Act, which imposes new requirements on the sale of salvaged airbags, is a nullity because the Commissioner has failed to promulgate regulations necessary to implement the Act. We modify the order of the Appellate Division to declare the Act valid and otherwise affirm.

I.

In 1996, the State Legislature passed the Airbag Safety and Anti-theft Act (L 1996, ch 161), adding subdivisions (6) and (7) to Vehicle and Traffic Law § 398-d. The new subdivisions provided that an airbag (inflatable restraint system) “activated in a crash or stolen” should be replaced only by a newly manufactured restraint system or a salvaged airbag “certified according to standards established by a nationally recognized testing, engineering and research body as provided for in subdivision two of section four hundred fifteen-c of this chapter” (Vehicle and Traffic Law § 398-d [6] [b], [e], as added by L 1996, ch 161, § 5). The new section 415-c (2) of the Vehicle and Traffic Law stated that, effective March 1, 1998, “prior to offering any salvaged inflatable restraint system for sale such . . . system shall be certified according to standards established by a nationally recognized testing, engineering and research body approved by the commissioner [of Motor Vehicles] in consultation with the superintendent of insurance.”

Section 11 of the 1996 Act states:

“This act shall take effect immediately, provided, that subdivision 7 of section 398-d of the vehicle and traffic law . . . shall take effect January 1,1997, provided, further, the commissioner of motor vehicles shall promulgate such rules and regulations as are necessary to implement the provisions of this act on or before January 1, 1997.”

At the time the Act was passed, no “standards established by a nationally recognized testing, engineering and research body” existed. Although the Legislature eventually extended the implementing deadline to March 1999, still no such standards were created. The Legislature did not extend the deadline further.

In December 1999, the Commissioner notified “All Repair Shops,” that “effective March 6, 2000, only NEW airbags [would] be allowed to be installed where the original had been deployed” (capitalization in original). The Commissioner explained that, because section 415-c (2) of the Vehicle and Traffic Law allowed only for installation of “certified salvage airbags” and no certification procedure was yet in place, the “only acceptable replacement bag at this time is a new one.”

Thereafter, NYAAD continued to engage in the sale of salvaged airbags, but commenced this declaratory judgment action challenging the Commissioner’s interpretation of the Act and the validity of his directive. NYAAD alleged that the Commissioner had a duty to promulgate regulations concerning certification standards for salvaged airbags and his failure to promulgate such regulations was an unsatisfied condition precedent, rendering the Act a nullity. In March 2000, NYAAD moved to preliminarily enjoin enforcement of the Commissioner’s directive. Defendants cross-moved to dismiss on standing grounds. Supreme Court granted NYAAD’s motion and denied defendants’ cross motion.

In March 2001, defendants moved for summary judgment. In support of their motion, defendants presented evidence that (1) the first two drafts of the Act did not contain a provision allowing the use of salvaged airbags, but the final version did only after lobbying pressure from automobile dismantlers and recyclers; (2) in order to gain the exclusive ability to sell salvaged airbags, the dismantlers agreed to find a certifying procedure for salvaged airbags; and (3) the Act’s original sponsor, Assembly Member Audrey Hochberg, stated that, if no approved system for certifying safety of salvaged airbags was found, the statute would only allow for the use of new airbags and the Act did not require the Commissioner to promulgate certifying standards. NYAAD cross-moved for summary judgment, offering evidence demonstrating the safety of salvaged airbags.

Supreme Court denied defendants’ motion, granted NYAAD’s cross motion and declared the Act a nullity. Reiterating its prior holding that “the Legislature intended to allow New York consumers access to salvaged airbags,” the court held the Commissioner’s failure to promulgate regulations was “fatal” to the Act “as it was a condition precedent” to its validity. The court reasoned that “Section 11 of Chapter 161 of the laws of 1996 was indeed a proviso as maintained by [NYAAD]. The effect of a proviso which is not satisfied is to restrain the enacting clause of the legislation.” Defendants appealed.

The Appellate Division reversed on the law, denied plaintiffs’ cross motion for summary judgment, granted defendants’ motion for summary judgment and dismissed the complaint. The Court noted that the Act’s plain language expressed the Legislature’s intent that either new or salvaged airbags certified by a nationally recognized testing body be installed as replacement systems, fulfilling the Act’s “primary purpose of discouraging airbag theft and repair shop fraud.” (298 AD2d 741, 742 [2002].)

The Court held that Supreme Court improperly

“construed the effective date clause to also require ‘the promulgation of rules or regulations to implement the certification standards described in section 8.’ The effective date clause, however, includes no such provision, requiring only that the Commissioner ‘promulgate such rules and regulations as are necessary to implement the provisions of this [A]et.’ Since the requirement inferred by Supreme Court was not ‘expressed clearly and unequivocally,’ we conclude that the Act’s effective date clause should not be read to make such regulations a condition precedent, thereby eviscerating the statute’s intent” (id. at 743 [citations omitted]).

This Court granted leave to appeal.

On this appeal NYAAD continues to argue that the legislative intent behind the Act was to provide access to salvaged airbags to New York State consumers, and that the Commissioner’s failure to establish a certifying body voids the Act. We disagree.

II.

To evaluate the impact of the Commissioner’s failure to promulgate regulations pertaining to the use of salvaged airbags on the validity of the Act, we must ascertain and give effect to the intention of the Legislature, as evidenced both by the language of the statute and its legislative history (see Riley v County of Broome, 95 NY2d 455, 463 [2000]).

Apparent from the language of the statute is the intent to permit the sale of salvaged airbags only if enumerated conditions are met. If the conditions are not met, only new airbags are permitted. The statute expressly provides, for example, that “in no case shall any inflatable restraint system be replaced with anything other than a newly manufactured inflatable restraint system or a salvaged inflatable restraint system certified according to standards established by a nationally recognized testing, engineering and research body” (Vehicle and Traffic Law § 398-d [6] [e], as added by L 1996, ch 161, § 5).

The legislative history additionally manifests that intent. As stated in a memorandum in support of the legislation, for example, the Act “sets up criteria for replacement of airbag systems, first with newly manufactured replacements, but also with salvaged replacement systems which conform to requirements set forth in the bill ... It further provides that, after March 1, 1998, only salvage[d] systems which have been certified as safe and appropriate for reinstallation may be sold according to the requirements set forth in the bill” (Senate Mem in Support of L 1996, ch 161, 1996 McKinney’s Session Laws of NY, at 2141). Similarly, when the effective date of the Act was postponed, “[t]he intent was to ensure the safety of the public when airbags which were previously installed in another car were used to replace stolen or deployed airbags. Presently, the auto manufacturers and other industry groups do not recommend the use of any airbags, other than new airbags, for replacement” (Senate Mem in Support of L 1998, ch 78, 1998 McKinney’s Session Laws of NY, at 1560).

Finally, the record contains later statements from individuals involved in the passage of the legislation that further confirm this conclusion.

As Assembly Member Hochberg testified at her deposition in this action, her interest in airbags resulted from a rash of thefts of airbags from automobile dealerships in the area she represented. In recounting the rest of the legislation, she stated that the original draft of the bill required that only newly manufactured airbags be used as replacements, and that after the bill passed all Assembly and Senate committees—but before it was submitted to a final vote—Assembly Member Bragman complained that the bill did not allow for the sale of salvaged airbags. Thereafter, Hochberg consulted with lobbyists from the dismantling industry and Nationwide Insurance, who suggested that salvaged airbags be sold subject to certification of their safety and verification that they were not stolen, and she modified the bill accordingly. Hochberg’s modified bill gave the dismantling industry a monopoly on the sale of salvaged airbags. In return, the industry was to create a certification process and identify nationally recognized bodies that could establish standards; if the Commissioner of Motor Vehicles was unable to approve an agency or the certification process, only newly manufactured airbags could be sold.

John Frederick, who worked with Assembly Member Hochberg in drafting chapter 161, in an affidavit described the legislation as retaining the ban on salvaged airbags except under certain conditions. In Frederick’s view, the effectiveness of the law was not meant to be contingent on the promulgation of regulations. Ernest Kitchen, the Director of Consumer Protection and Auto Business Regulation at the Department of Motor Vehicles, in his affidavit explained that he oversees the Department’s administrative functions regarding the sale and installation of salvaged airbags and was involved in the negotiations resulting in the enactment of chapter 161. According to Kitchen, the compromise permitted unregulated sales of salvaged airbags until January 1, 1997, on and after which salvaged airbags could be used only after they were checked against an anti-theft index. On and after March 1, 1998, salvaged airbags could be sold only if certified for safety by a nationally recognized testing, engineering and research body approved by the Commissioner in consultation with the Superintendent of Insurance.

To further illustrate the intent of the Legislature, Hochberg considered a second bill once the first bill encountered difficulties. The second bill repealed the safety and anti-theft certification process and replaced it with the requirement that salvaged airbags conform to original equipment manufacturers’ standards. Although Hochberg initially agreed to sponsor this bill, she had a change of heart after further study and put a sponsor’s hold on it. She withdrew her support because the amendment removed from the legislation reasonable and necessary safeguards against theft and unsafe salvaged airbags that were in the original legislation.

Accordingly, the order of the Appellate Division should be modified, with costs to the defendants, by declaring valid chapter 161 of the Laws of 1996 and, as so modified, affirmed.

Chief Judge Kaye and Judges Cipaeick, Rosenblatt, Geaffeo and Read concur.

Order modified, with costs to defendants, by declaring valid chapter 161 of the Laws of 1996 and, as so modified, affirmed.


source: Caselaw Access Project

author: G.B. Smith, J.

license: Public Domain

text:
    [803 NE2d 385, 771 NYS2d 64]
    The People of the State of New York, Respondent, v James Johnson, Appellant.
    Argued November 20, 2003;
    decided December 22, 2003

      POINTS OF COUNSEL

      Legal Aid Society Criminal Appeals Bureau, New York City (Richard Joselson, Laura R. Johnson and Judith Stern of counsel), for appellant.
    Because the People presented absolutely no evidence establishing that the officer searched appellant’s glove compartment pursuant to established police department procedures, the handgun recovered during the search, as well as appellant’s postarrest statements, must be suppressed as the fruits of an unlawful inventory search. (Florida v Wells, 495 US 1; South Dakota v Opperman, 428 AD2d 364; People v Galak, 80 NY2d 715; Colorado v Bertine, 479 US 367; Illinois v Lafayette, 462 US 640; People v Robinson, 97 NY2d 341; United States v Thompson, 29 F3d 62; United States v Arango-Correa, 851 F2d 54; People v Lewis, 217 AD2d 591; People v Minto, 272 AD2d 558.)

      Robert M. Morgenthau, District Attorney, New York City (Donald J. Siewert and Mark Dwyer of counsel), for respondent.
    The officer properly searched the glove compartment of defendant’s car and found a loaded gun as part of a limited and preliminary inventory search. Defendant’s admission that he carried the gun for his own protection was not the fruit of unlawful police conduct. (People v Richardson, 41 NY2d 886; People v Bleakley, 69 NY2d 490; People v Albro, 52 NY2d 619; People v Galak, 80 NY2d 715; People v Gonzalez, 62 NY2d 386; South Dakota v Opperman, 428 US 364; Cady v Dombrowski, 413 US 433; Colorado v Bertine, 479 US 367; Florida v Wells, 495 US 1; United States v Flores, 122 F Supp 2d 491.)
   OPINION OF THE COURT

G.B. Smith, J.

Following an arrest for driving with a suspended license, the police recovered a loaded gun in defendant’s vehicle. The issue in this case is whether the evidence was seized pursuant to a valid inventory search. We agree with the suppression court and the defendant that the evidence adduced at the hearing was insufficient to establish that the alleged inventory search was valid, and therefore reverse the Appellate Division.

I.

Defendant James Johnson was indicted for multiple counts of criminal possession of a weapon. At the suppression hearing, the arresting officer testified that on October 2, 1999, he and his partner were patrolling an area of Harlem in an unmarked car and in plainclothes. The officers were part of the Manhattan North Street Crime Unit which focused on “aggressive crimes,” including removing guns from the streets. The arresting officer had been a member of the Unit for about six or seven months and this was his third or fourth arrest. His partner was a sergeant.

The arrest took place around 7:10 p.m. at 133rd Street and Seventh Avenue (Adam Clayton Powell, Jr. Boulevard). About eight minutes earlier, the officers had observed defendant’s vehicle, a black Isuzu Trooper with Virginia license plates, “traveling at a high rate of speed cutting across lanes” without always signaling. The officers had initially stopped behind defendant’s vehicle at a red light at 133rd Street and Seventh Avenue. The officers learned that the car was a rental after radioing another vehicle for a plate check.

The officers followed the vehicle as it made a left turn on 135th Street heading west to Eighth Avenue (Frederick Douglass Boulevard), then a right turn heading north until 145th Street, then another right heading east to Seventh Avenue and another right heading south until returning to 133rd and Seventh Avenue. During the pursuit, the officer observed that other cars in front of the vehicle were forced to move out of its way and pedestrians were “jumping back on the sidewalks.”

As the officer exited his vehicle, he observed defendant reach for the glove compartment, open it, and then close it. When the officer reached the driver’s side of the vehicle, the officer told defendant that he had been pulled over for “driving kind of reckless.” When asked for his driver’s license and registration, defendant offered his license and stated that the car was a rental, but that he did not have the rental agreement with him. The officer then asked him to look in the glove compartment, but defendant stated that the agreement was not there. When the officer radioed another vehicle for a license check, the license came back suspended. The officer then told defendant to step out of the vehicle, conducted a pat-down search, and directed him to the back of the vehicle. Although the officer had yet to inform defendant, defendant was under arrest for driving with a suspended license.

While defendant remained at the back of his car with the officer’s partner, the officer—suspecting that there might be something illegal in the glove compartment—walked to the passenger side of the vehicle and opened the glove compartment, finding a loaded handgun. The officer left the gun in the compartment, approached the defendant and handcuffed him. While in the police vehicle and at the precinct, defendant stated that he was a bodyguard and the gun was for his protection.

The officer testified that the search of the glove compartment was undertaken pursuant to an inventory search. The officer further testified that the objectives of such a search were to make the car safe for the precinct personnel who would be transporting the vehicle and to protect against claims that items were missing. The officer did not complete any inventory forms at the scene, or at the precinct, and did not produce one at the suppression hearing. He did, however, complete a stop and frisk report, noting that he recovered a loaded firearm during a search incident to arrest. The vehicle was transported to the 32nd Precinct, where it was returned to defendant’s wife upon production of the rental agreement. The car was never vouchered.

The hearing court granted defendant’s motion to suppress the gun and the incriminating statement, rejecting the People’s argument that the gun was recovered pursuant to a proper inventory search. The court found that the People offered no evidence with respect to procedures officers must follow during inventory searches. The Appellate Division reversed, finding that the officer had conducted a “valid preliminary and limited inventory search at the scene” (298 AD2d 281, 282). We now reverse.

II.

Following a lawful arrest of the driver of an automobile that must then be impounded, the police may conduct an inventory search of the vehicle. Defendant does not challenge the stop. Rather, he argues that the People failed to show that the search of the glove compartment box was a proper inventory search. We agree.

An inventory search is exactly what its name suggests, a search designed to properly catalogue the contents of the item searched. The specific objectives of an inventory search, particularly in the context of a vehicle, are to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments (Florida v Wells, 495 US 1, 4 [1990]). As the Supreme Court has stated, “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence” (id.). To guard against this danger, an inventory search should be conducted pursuant to “an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably” (People v Galak, 80 NY2d 715, 719 [1993]). The procedure must be standardized so as to “limit the discretion of the officer in the field” (id.). While incriminating evidence may be a consequence of an inventory search, it should not be its purpose.

Here, the evidence adduced at the hearing was clearly insufficient to satisfy the prosecutor’s initial burden of establishing a valid inventory search. Although the officer testified that he knew of the general objectives of an inventory search, and declared that his search of the glove compartment box fulfilled those objectives, the People offered no evidence to establish the existence of any departmental policy regarding inventory searches. Even assuming such a policy existed, the People failed to produce evidence demonstrating either that the procedure itself was “rationally designed to meet the objectives that justify inventory searches in the first place” (id. at 719), or that this particular officer conducted this search properly and in compliance with established procedures. Indeed, if any policy did exist here that was properly designed to meet the goals of accounting for the contents of the vehicle and to protect others from harm, and that properly limited an officer’s discretion, it can hardly be said that the officer in this case followed the policy by conducting a search that included only the glove compartment, and upon finding a gun, leaving it in place.

Moreover, while the officer filled out a stop and frisk report in which he stated that the search here had been conducted incident to an arrest, he did not fill out the hallmark of an inventory search: a meaningful inventory list. “The policy or practice governing inventory searches should be designed to produce an inventory” (Wells, 495 US at 4; see also Galak, 80 NY2d at 720 [inventory search must “create a usable inventory”]).

In addition to finding lack of proof that the inventory search was proper, the hearing court also concluded the claim that the search was an inventory search was “less than a believable claim and it appears to be merely a pretext to cover for what was the officer’s desire in the first place, to see what the defendant was up to and to somehow get into the interior of his car to see if the defendant was in possession of contraband or the weapon.”

In reversing as a matter of law, the Appellate Division, citing People v Robinson (97 NY2d 341, 348-349 [2001]), which was decided after the trial court’s decision in this case, found that the search was a proper inventory search. In Robinson, this Court adopted as a matter of state law the holding of the Supreme Court in Whren v United States (517 US 806 [1996]) “that where a police officer has probable cause to detain a person temporarily for a traffic violation, that seizure does not violate the Fourth Amendment to the United States Constitution even though the underlying reason for the stop might have been to investigate some other matter” (97 NY2d at 348). Relying on Robinson, the Appellate Division found that the officer’s motives for conducting the inventory search did not matter as long as the stop and the arrest were lawful. In other words, the Appellate Division improperly applied the law governing pretext stops to inventory searches.

Accordingly, the order of the Appellate Division should be reversed, the defendant’s motion to suppress granted and the indictment dismissed.

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

Order reversed, etc.


author: Read, J.

text:
    [803 NE2d 379, 771 NYS2d 58]
    In the Matter of James A. Losurdo, Appellant, v Asbestos Free, Inc., Respondent. Workers’ Compensation Board, Respondent. In the Matter of Florencia Machado, Appellant, v Pleasantville Ford, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Argued November 18, 2003;
    decided December 22, 2003
    Decided December 22, 2003

      POINTS OF COUNSEL

      Olinsky & DiMartino, Oswego (Howard D. Olinsky and Jay a Shurtliff of counsel), for appellant in the first above-entitled proceeding.
    I. There could be no violation of Workers’ Compensation Law § 114-a (1) when the fact concealed was not material, in that it did not allow appellant to obtain benefits to which he would not otherwise have been entitled. (Matter of Flow v Mark IV Constr. Co., 288 AD2d 779; People v Hunter, 34 NY2d 432; People v Starks, 238 AD2d 621; Matter of Krebs v Town of Ithaca, 293 AD2d 883.) II. The penalty imposed was excessive and not permitted by statute because it was not related to amounts received as a direct result of the false statement. (Matter of Post v Burger & Gohlke, 216 NY 544; Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129; Matter of Esposito v Petruzzi, 278 AD2d 698; Matter of Lashlee v Pepsi-Cola Newburgh Bottling, 301 AD2d 879.)

      Wood & Richmond, LLP, North Syracuse {John I. Hoozda of counsel), for Asbestos Free, Inc., respondent in the first above-entitled proceeding.
    I. The order of the Appellate Division, Third Department affirming the findings of fraud pursuant to section 114-a of the Workers’ Compensation Law was correct as a matter of law when the fraudulent statement proffered by appellant was material within the meaning of section 114-a. (Matter of Flow v Mark IV Constr. Co., 288 AD2d 779.) II. The order of the Appellate Division, Third Department affirming the finding of the Workers’ Compensation Board disqualifying appellant from benefits was correct as a matter of law. (Matter of Post v Burger & Gohlke, 216 NY 544; Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129; Matter of Esposito v Petruzzi, 278 AD2d 698; Matter of Lashlee v Pepsi-Cola New-burgh Bottling, 301 AD2d 879.)

      Hoffman, Wachtell, Foster & Maier, White Plains {Lee A. Hoffman, Jr., of counsel), for appellant in the second above-entitled proceeding.
    I. As a matter of law, the question asked of appellant was ambiguous and appellant did not knowingly make a false statement or representation. (Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186.) II. As a matter of law, a penalty pursuant to Workers’ Compensation Law § 114-a cannot be imposed for any period prior to the effective date of the statute or for any period prior to the first false statement or representation. III. As a matter of law, appellant neither received nor claimed workers’ compensation benefits directly attributable to any alleged false statement or representation. IV As a matter of law, the Workers’ Compensation Board improperly rescinded the Workers’ Compensation Law Judge’s finding that claimant had a permanent partial disability. V As a matter of law, the determination of respondent Workers’ Compensation Board that appellant should be disqualified from all compensation payments subsequent to September 26, 1996 was arbitrary and capricious and an abuse of discretion. (Matter of Phelps v Phelps, 277 AD2d 736; Matter of Flow v Mark IV Constr. Co., 288 AD2d 779; Matter of Stolz v Board of Regents, 4 AD2d 361.) VI. There is no evidence in the record, and thus no substantial evidence in the record, to support the decision of the Workers’ Compensation Board.

      Alison Kent-Friedman, New York City, and James E O’Connor for respondents in the second above-entitled proceeding.
    I. Notwithstanding the effective date of Workers’ Compensation Law § 114-a, a finding of no compensable lost time for the period prior to the effective date of the statute is entirely appropriate and within the Workers’ Compensation Board’s discretion. (State Farm Fire & Cas. Co. v LiMauro, 103 AD2d 514, 65 NY2d 369; Allstate Ins. Co. v Farmers Ins. Group, 108 AD2d 284, 65 NY2d 1050, 67 NY2d 924; Matter of Richardson v Fiedler Roofing, 67 NY2d 246.) II. Application of Workers’ Compensation Law § 114-a as amended to prospectively disqualify claimant is permissible notwithstanding the occurrence of work activity prior to the effective date of the statute. (Matter of Kass v Club Mart of Am., 160 AD2d 1148; Matter of St. Vincent’s Hosp. & Med. Ctr. v New York State Div. of Hous. & Community Renewal, 109 AD2d 711, 66 NY2d 959; Matter of Phelps v Phelps, 277 AD2d 736.) III. The decision of the Workers’ Compensation Board is supported by substantial evidence and should not be disturbed. (Matter of Hollis v Marriott Hotel, 210 AD2d 714, 87 NY2d 859, 1008, 88 NY2d 920; Matter of Donohue v Scandinavian Airlines, 134 AD2d 660; Matter of Beehm v Educational Opportunity Ctr., 272 AD2d 808; Matter of Angelino v 660 Park Ave. Corp., 28 AD2d 798; Matter of Baumgarten v New York State Banking Dept., 279 AD2d 741; Matter of Stamoulis v Anorad Corp., 292 AD2d 657, 98 NY2d 609, 729; Matter of Hercules v United Artists Communications, 176 AD2d 998.) IV Rescission of the Workers’ Compensation Law Judge’s finding of permanent partial disability with no finding of reduced earnings was not improper and should be upheld. (Matter of Virtuoso v Glen Campbell Chevrolet, 292 AD2d 731, 98 NY2d 608; Matter of Schneider v Buffalo Crushed Stone Co., 43 AD2d 780.)
   OPINION OF THE COURT

Read, J.

These appeals call for us to decide whether section 114-a (1) of the Workers’ Compensation Law authorizes the Workers’ Compensation Board to disqualify a claimant from receiving wage replacement benefits where the forfeited compensation is not “directly attributable” to a false statement or representation. We hold that section 114-a (1) affords the Board discretion to impose such a penalty; however, the records below in these two cases are inadequate for us to determine whether the Board properly exercised its discretion.

I.

A. Losurdo

Appellant James Losurdo sought workers’ compensation benefits for an injury to his left knee, which occurred on September 12, 1994, while he was working for his employer, Asbestos Free, Inc. At a hearing held on May 15, 1997, Losurdo denied having previously injured his left knee. The Workers’ Compensation Law Judge (WCLJ) found that accident, notice and causal relationship were established for Losurdo’s injury, and awarded him wage replacement benefits.

The employer’s carrier requested review of the WCLJ’s decision. The carrier argued that medical records demonstrated a preexisting injury to Losurdo’s left knee, and sought apportionment. The carrier also requested a fraud investigation pursuant to section 114-a (1) because at the hearing Losurdo denied a preexisting injury. At the new hearing, Losurdo professed that he had honestly not recalled any previous injury to his left knee when he testified in 1997. He admitted that the medical records refreshed his memory about the previous injury. On September 8, 1999, the WCLJ found that Losurdo had not violated section 114-a (1), and that no apportionment was necessary, citing Matter of Peziol v VAW of Am. (245 AD2d 877, 877 [3d Dept 1997] [“(I)nasmuch as claimant was able to effectively perform his job despite his noncompensable preexisting [ ] condition, apportionment does not apply”]).

On July 27, 2001, the Board modified the WCLJ’s decision by finding that Losurdo had made “a misstatement of fact” concerning the injury site, which was material and violated section 114-a (1) “notwithstanding the fact that the claimant’s compensable injury is not, as a matter of law, apportionable with his prior injuries.” The Board rescinded all wage replacement awards after May 16, 1997; disqualified Losurdo from any future wage replacement benefits; and closed the case. The Board did not in any way contradict the establishment of the claim or the existence of a compensable injury. The Appellate Division affirmed (302 AD2d 703 [3d Dept 2003]), holding that the Board’s determination of a statutory violation was supported by substantial evidence, and that its interpretation of section 114-a (1) was reasonable. The Appellate Division did not independently review the penalty imposed.

B. Machado

Appellant Florencia Machado sought workers’ compensation benefits for a back injury that he sustained on June 13, 1989, while working as an auto mechanic for his employer, Pleasantville Ford, Inc. The WCLJ found that accident, notice and causal relationship were established for the injuries sustained, and awarded Machado compensation for total disability. In 1995, Machado was found to be partially disabled, and his wage replacement award was consequently reduced. Machado protested, claiming that he was totally disabled.

To investigate Machado’s claim of total disability, the employer’s carrier arranged for surveillance, which revealed that Machado was driving a taxi. At a new hearing requested by the carrier and held on September 26, 1996, Machado denied that he had “continued to do any work” since the accident. The carrier countered with the testimony of its investigator and the surveillance tape.

The WCLJ found that Machado was permanently partially disabled as a result of his work-related injury, notwithstanding his stint as a taxi driver. Alluding to the reduced earnings provisions in Workers’ Compensation Law § 15 (3) (w), he disqualified Machado from all wage replacement benefits received from January through September of 1996 because Machado’s income could not be determined for this period of time. The WCLJ also found that Machado had stopped working on September 26, 1996, and reinstated wage replacement benefits subsequent to that date at the rate for partial disability.

On November 30, 2000, the Board reversed the WCLJ’s decision. The Board stated that section 114-a (1) contains two penalties—one mandatory and the other discretionary. Finding that Machado had received compensation attributable to his false statements and representations, the Board agreed with the WCLJ that section 114-a (1) required forfeiture of wage replacement benefits received by Machado from January through September of 1996. In addition, the Board disqualified Machado from receiving any wage replacement benefits subsequent to September 1996, and closed the case.

The Appellate Division held that the Board’s determination of statutory violation was supported by substantial evidence (305 AD2d 704 [3d Dept 2003]), and concluded that under section 114-a (1), the Board may cut off the entire monetary award or a portion of it. The Appellate Division’s review of the penalty was limited to the observation that “[i]nasmuch as the penalty imposed by the Board is specifically authorized by the statute, we decline to disturb it” (id. at 706).

II.

Section 114-a (1), which was added to the Workers’ Compensation Law in 1996 as part of remedial legislation to repeal Dole v Dow Chem. Co. (30 NY2d 143 [1972]) and to curtail fraud, provides as follows:

“If for the purpose of obtaining compensation pursuant to section fifteen of this chapter, or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In addition, as determined by the board, the claimant shall be subject to a disqualification or an additional penalty up to the foregoing amount directly attributable to the false statement or representation.”

Preliminarily, we address the requirement that section 114-a (1) comes into play only when a claimant makes a false statement or representation as to a “material fact.” Pointing to People v Hunter (34 NY2d 432 [1974]), appellant Losurdo insists that a false statement or representation is material only if it enables a claimant to receive compensation to which he was not otherwise entitled. But section 145 of the Social Services Law, the statute at issue in Hunter, differs markedly from section 114-a (1). Section 145 (1) makes it a crime to deliberately conceal a “material fact” when applying for public assistance benefits, providing that “[a]ny person who by means of a false statement or representation . . . obtains or attempts to obtain . . . public assistance or care to which he is not entitled . . . shall be guilty of a misdemeanor.” (Emphasis added.) Thus, in Hunter we held that “[b]y definition, the fact concealed would not be material unless it allowed the defendant to obtain benefits to which he would not otherwise be entitled” (34 NY2d at 436 [internal quotation marks omitted]).

Section 114-a (1) places no comparable limitation on materiality. Accordingly, the “usual and commonly understood meaning” of the word “material” is all that the statute intends (Matter of Orens v Novello, 99 NY2d 180, 186 [2002] [citations omitted]; see also Matter of Flow v Mark IV Constr. Co., 288 AD2d 779, 780 [3d Dept 2001] [holding that phrase “material fact” in section 114-a (1) is not unconstitutionally vague, “has a common understanding and is used, without definition, in many other statutory schemes”]). We hold that a fact is material for purposes of section 114-a (1) so long as it is “significant or essential to the issue or matter at hand” (see Black’s Law Dictionary 611 [7th ed 1999]); therefore, a false statement need not affect the dollar value of an award to be material within the meaning of section 114-a (1). Losurdo’s denial of a previous injury to his left knee was significant to his claim of entitlement to workers’ compensation benefits and therefore was material.

Next, section 114-a (1) provides, as relevant here, that if the Board determines that a claimant has made a false statement or representation as to a material fact, “such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation” (emphasis added). The language is carefully crafted in that imposition of the penalty is mandatory (“shall”) and a strong link must be established between the false statement or representation and the forfeited compensation (“directly attributable”).

Further, “[i]n addition” to the mandatory penalty, section 114-a (1) grants the Board discretion to impose “disqualification or an additional penalty” on a claimant who violates the statute. The “additional penalty” may not exceed the amount “directly attributable to the false statement or representation” (i.e., the amount of the mandatory penalty). Alternatively, the Board may impose “disqualification” which, by its plain meaning, allows forfeiture of all or a portion of wage replacement benefits. Thus, while the mandatory penalty requires a link between the falsehood and the forfeited compensation, the Board may impose a discretionary penalty for violation of the statute whether or not the claimant is subject to the mandatory penalty (i.e., regardless of whether the false statement or representation enabled the claimant to receive compensation) (see Minkowitz, Practice Commentary, McKinney’s Cons Laws of NY, Book 64, Workers’ Compensation Law § 114-a, 2004 Pocket Part, at 68). Nothing in section 114-a (1) limits disqualification to cases where the false statement or representation negates the existence of a compensable injury. To the contrary, section 114-a (1) allows for penalties to be imposed where a compensable injury exists.

Both Losurdo and Machado contend that their disqualifications are not authorized by section 114-a (1) because they received no compensation “directly attributable” to a false statement. Losurdo argues that because his misstatement did not affect the Board’s apportionment decision, no compensation is “directly attributable” to it, and thus no compensation is subject to forfeiture. Machado argues that because he has a nonschedule impairment, he can receive compensation for reduced earnings pursuant to Workers’ Compensation Law § 15 (3) (w) even if he returns to work. Thus, his purported false statement did not enable him to receive any compensation to which he was not otherwise entitled, and so none of his compensation is subject to forfeiture.

These arguments have merit to the extent they relate to the mandatory penalty in section 114-a (1). Appellants, however, ignore the Board’s discretionary power under section 114-a (1), which, if exercised properly, supports disqualification even though the forfeited compensation is not directly attributable to a claimant’s false statement or representation.

III.

We agree with the Appellate Division that substantial evidence supports the Board’s findings that a violation of section 114-a (1) took place in both Losurdo and Machado (see Matter of Phelps v Phelps, 277 AD2d 736, 738 [3d Dept 2000]). We cannot determine from the records below, however, whether the Board imposed the disqualification penalties in these cases in accordance with section 114-a (1). In order for a reviewing court to assess whether section 114-a (1) has been properly applied, the administrative record must, at a minimum, reflect whether a mandatory or discretionary penalty was imposed. If mandatory, the record must demonstrate a link between the false statement or representation and the forfeited compensation to show that the compensation was “directly attributable” to the false statement or representation. If the Board exercises its discretionary power, the record must reflect that the additional penalty does not exceed the mandatory penalty, or, in the case of disqualification, provide some basis for appellate review.

In Losurdo, the forfeited compensation was not “directly attributable” to a false statement because notwithstanding Losurdo’s denial of a preexisting injury, the Board found that his injury was not apportionable and was, in fact, compensable under the statute. But in such a case, the statute does not require the Board to condone a claimant’s misrepresentations and continue wage replacement benefits undiminished. While the mandatory penalty does not apply to Losurdo, section 114-a (1) vests the Board with discretion to disqualify him from wage replacement benefits so long as the penalty is not disproportionate to his offense (see Matter of Harp v New York City Police Dept., 96 NY2d 892, 894 [2001]). On remand, the Board must reconsider whether or not blanket disqualification is justified and provide some explanation for its determination in this regard.

The Board properly applied section 114-a (1) in Machado to the extent that he was disqualified from receiving compensation from January through September of 1996. This compensation was directly attributable to Machado’s false statement about his employment in that his earnings from employment affected his entitlement to reduced earnings compensation. The record does not, however, demonstrate whether the forfeiture of Machado’s compensation subsequent to September 1996 was intended as a mandatory or as a discretionary penalty. Perhaps the Board’s reversal of the WCLJ’s decision was intended to overrule the finding of a permanent partial disability, and thus was a finding that Machado was not disabled and so was not entitled to any wage replacement, not even under the reduced earnings provision. In such a case, Machado’s false statement concerning his ability to work would result in a mandatory penalty. Alternatively, if the WCLJ’s finding of a permanent partial disability stands, then the Board’s penalty can only be sustained if it was an exercise of discretion under section 114-a (1), and the record demonstrates that disqualification from all future wage replacement benefits is not disproportionate to Machado’s offense.

Accordingly, the orders in Losurdo and Machado should be reversed, with costs, and these matters remitted to the Appellate Division, Third. Department, with directions to remand to the Workers’ Compensation Board for further proceedings in accordance with this opinion.

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

In Matter of Losurdo v Asbestos Free: Order reversed, etc.

In Matter of Machado v Pleasantville Ford: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.

      . These appeals pertain only to the forfeiture of wage replacement benefits. In Matter of Rodriguez v Burn-Brite Metals Co. (1 NY3d 553 12003] [decided today]), we hold that section 114-a (l)’s forfeiture penalty does not extend to medical benefits.

      . Appellant’s name appears with various spellings in the record. We use the spelling in the papers submitted to us on this appeal.

      . Section 114-a (1) also specifies that the false statement or representation must be made “knowingly” and either “for the purpose of obtaining compensation” or “for the purpose of influencing any determination regarding” compensation. Whether these prerequisites for violation of the statute were met is not an issue in these appeals.

      . Appellant Machado argues that because he is not subject to a mandatory penalty, the Board cannot exercise its discretionary power to penalize him for his false statement. This argument is without merit as it ignores the Legislature’s use of the phrase “[i]n addition.”


author: Graffeo, J. G.B. Smith, J.

text:
    [804 NE2d 392, 772 NYS2d 228]
    The People of the State of New York, Respondent, v Arthur Mills, Appellant.
    Argued September 18, 2003;
    decided October 28, 2003

      POINTS OF COUNSEL

      Frank J. Nebush, Jr., Public Defender, Utica (Esther Cohen Lee of counsel), for appellant.
    I. The charge in the indictment of murder in the second degree was used by the prosecution to circumvent the statute of limitations for the crime of criminally negligent homicide, for which defendant was convicted, and the trial court did not have jurisdiction to sentence defendant for that lesser offense, since the statute of limitations for that crime had run. (People v Gulston, 181 Misc 2d 644; People v Di Pasquale, 161 App Div 196; People v Lohnes, 76 Misc 2d 507; People v Legacy, 4 AD2d 453; People v Soto, 76 Misc 2d 491; People v Dickson, 133 AD2d 492; People v O’Neil, 107 Misc 2d 340; Spaziano v Florida, 468 US 447; People v Simpson, 175 AD2d 851; People v Holliday, 74 AD2d 993.) II. Since defendant’s wife, Jane Mills, had asserted the marital privilege at the trial, and had vehemently insisted that she did not want to testify against her husband because she still loved him, and since the defense had objected to the introduction of her testimony on that ground, the wife should not have been forced by the prosecution and the court, upon pain of being held in contempt of court and jailed, to testify about admissions that her husband had allegedly made to her about this incident. (People v Lifrieri, 157 Misc 2d 598; Poppe v Poppe, 3 NY2d 312; People v Melski, 10 NY2d 78; People v Dudley, 24 NY2d 410; People v Fields, 38 AD2d 231; People v Fediuk, 66 NY2d 881; People v Edwards, 151 AD2d 987; People v Branch, 224 AD2d 926; People v Naylor, 120 AD2d 940; People v Knapper, 191 AD2d 207.) III. Since defendant’s wife, Jane Mills, had informed the prosecutor that she did not wish to testify before the grand jury about admissions that her husband had allegedly made to her on the ground that they were protected by the marital privilege, the prosecutor did not have the right to force her, upon pain of being jailed, to testify without first seeking a court order. (Matter of A & M, 61 AD2d 426; People v Easter, 90 Misc 2d 748.) IV When defendant’s wife, Jane Mills, testified at the trial that she could not recall the admissions that her husband had allegedly made to her in their bedroom, the prosecutor was not allowed to impeach that testimony by reading her testimony given at a pretrial hearing in the matter and asking her if she had given that testimony, since that procedure violated the rules established in CPL 60.35. (People v Broadwater, 116 AD2d 1022; People v Estrada, 142 AD2d 512.) V. Since there had been insufficient evidence produced at the trial to support defendant’s conviction for criminally negligent homicide, the defense’s motion to dismiss the indictment at the close of People’s case should have been granted by the court. (People v Haney, 30 NY2d 328; People v Boutin, 75 NY2d 692.)

      Michael A. Arcuri, District Attorney, Utica (Carl J. Boykin of counsel), for respondent.
    I. The People properly indicted defendant for murder in the second degree. (People v Helliger, 96 NY2d 462; People v Boettcher, 69 NY2d 174; Fuller v United States, 407 F2d 1199, 393 US 1120; People v Dickson, 133 AD2d 492; People v Austin, 63 App Div 382, 170 NY 585; People v Blake, 121 App Div 613, 193 NY 616; People v Di Pasquale, 161 App Div 196; People v Legacy, 4 AD2d 453; People v Lohnes, 76 Misc 2d 507; Spaziano v Florida, 468 US 447.) II. Defendant’s threats to his wife were not “privileged” statements. (People v Capobianco, 218 AD2d 707, 86 NY2d 841; People v Branch, 224 AD2d 926, 87 NY2d 1017; People v Fediuk, 66 NY2d 881; People v Dudley, 24 NY2d 410.) III. The prosecutor properly informed defendant’s wife of the possible result of her failure to comply with her grand jury subpoena. (People v Wiggins, 89 NY2d 872; People v Natal, 75 NY2d 379, 498 US 862; Matter of Ferrara v Hynes, 63 AD2d 675; People v Johnson, 275 AD2d 949, 95 NY2d 965; Matter of Beach v Shanley, 62 NY2d 241; People v Ianniello, 21 NY2d 418.) TV The prosecutor’s direct examination of defendant’s wife comported with Criminal Procedure Law § 60.35. (People v Tonge, 93 NY2d 838; People v Saez, 69 NY2d 802; People v Logan, 261 AD2d 172, 93 NY2d 1003; People v Fitzpatrick, 40 NY2d 44; People v Andujar, 290 AD2d 654, 98 NY2d 648; People v Roman, 201 AD2d 933, 83 NY2d 914.) V Sufficient evidence supported defendant’s conviction for criminally negligent homicide. (People v Bleakley, 69 NY2d 490; People v Contes, 60 NY2d 620; People v Carr-El, 99 NY2d 546; People v Ford, 66 NY2d 428; People v Haney, 30 NY2d 328; People v Boutin, 75 NY2d 692; People v Whitlatch, 294 AD2d 909, 98 NY2d 703.)
   OPINION OF THE COURT

Graffeo, J.

Defendant Arthur Mills was indicted in March 2000 for murder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder]) in connection with his role in the 1978 drowning death of 12-year-old Raymond Umber. Although the drowning at Oneida Lake was originally determined to be an accident, a police investigation was instigated after defendant’s wife and his brother each came forward and gave statements to the police implicating defendant.

In a pretrial motion, defendant requested that relevant lesser included offenses be submitted to the jury. Noting that such motions are customarily addressed at the close of evidence, County Court nonetheless granted defendant’s request to the extent that the trial evidence would support any lesser included charges. Because murder in the second degree (a class A-I felony) (see CPL 30.10 [2] [a]) has no statute of limitations, the court recognized that the passage of time between the crime and the indictment—more than 20 years—would become an issue only if defendant sought to have a lesser included offense that was subject to a limitations period submitted to the jury. The court therefore expressly conditioned its willingness to consider defendant’s request to charge any lesser included offenses supported by the evidence upon defendant’s “understanding that, if convicted of any lesser included offense, he has waived his objection on statute of limitation[s] grounds.”

At the charge conference, defense counsel asked that the lesser included offense of criminally negligent homicide, a class E felony with a five-year statute of limitations (see Penal Law § 125.10; CPL 30.10 [2] [b]), be submitted to the jury. The trial court reiterated its position that the request constituted a waiver of any statute of limitations defense to the lesser included charge, indicating that it would not entertain a postverdict motion by defendant should the jury convict him of that offense. Defense counsel persisted in his charge-down request and stated that defendant reserved his right to appeal such a conviction on statute of limitations grounds. Consistent with its view of its obligations under CPL 300.50 and over the People’s objection, the court instructed the jury to consider criminally negligent homicide as a lesser included offense of depraved indifference murder. The jury acquitted defendant of second-degree murder but convicted him of the lesser crime.

The trial court later denied defendant’s motion to set aside the jury verdict and sentenced defendant to lVs to 4 years. Defendant has completed his term of incarceration and is presently under parole supervision.

On defendant’s appeal, a divided Appellate Division affirmed the conviction, reasoning that defendant had waived his right to assert any statute of limitations defense when he asked the trial court to charge the jury on the lesser included offense of criminally negligent homicide. One of the two dissenting Justices who voted to reverse the conviction on statute of limitations grounds granted defendant leave to appeal.

Although the lesser included offense was charged to the jury at defendant’s request, he now asks this Court to vacate the verdict. Defendant asserts that his conviction should be reversed and the indictment dismissed because the second-degree murder indictment was not supported by legally sufficient evidence. He contends that the prosecution overcharged him with depraved indifference murder in order to secure an indictment from the grand jury as a means of circumventing the five-year statute of limitations applicable to lesser degrees of homicide (see CPL 30.10 [2] [a], [b]).

The People respond that defendant’s demand that the trial court provide the jury with the option of convicting him of criminally negligent homicide, while purporting to reserve his statute of limitations defense to that charge, placed the court in an untenable position given its statutory obligations under CPL 300.50 (2). The People emphasize that defendant obtained a substantial benefit by insisting on the charge-down—reducing his potential sentence exposure from 15 years to life to 1 to 4 years in prison (see Penal Law § 70.00)—and he should not be heard to complain about that benefit on appeal or permitted to manipulate the jury into exercising leniency.

New York courts have long recognized that the statute of limitations defense is not jurisdictional and can be forfeited or waived by a defendant (see People v Kohut, 30 NY2d 183, 191 [1972]; People v Blake, 193 NY 616 [1908], affg 121 App Div 613, 616-617 [1st Dept 1907]; People v Dickson, 133 AD2d 492, 495 [3d Dept 1987]; People v Brady, 257 App Div 1000, 1000 [2d Dept 1939]). Lesser included offenses may be submitted as an alternative to the greatest offense in the indictment “if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. . . . Any error respecting such submission, however, is waived by the defendant unless he objects thereto before the jury retires to deliberate” (CPL 300.50 [1]; see People v Ford, 62 NY2d 275, 283 [1984]). “[B]y affirmatively requesting that the trial court submit the lesser charge to the jury, defendant waive [s] his right to challenge the submission of the lesser charge on appeal” (People v Richardson, 88 NY2d 1049, 1051 [1996], citing People v Ford, 62 NY2d at 283).

We hold that where an indictment is based on legally sufficient evidence defendant’s statute of limitations defense is forfeited or waived by his request to charge the lesser included offense. This rule eliminates the danger of prosecutorial overcharging to circumvent the statute of limitations. Here the evidence before the grand jury was legally sufficient to support the depraved indifference charge.

A person is guilty of depraved indifference murder when “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). Legally sufficient evidence is defined as “competent evidence which, if accepted as true, would establish every element of an offense charged” (CPL 70.10 [1]). In the context of grand jury proceedings, “legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” (People v Bello, 92 NY2d 523, 526 [1998]; see People v Mayo, 36 NY2d 1002, 1004 [1975]). Courts assessing the sufficiency of the evidence before a grand jury must evaluate “whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction” (People v Carroll, 93 NY2d 564, 568 [1999]; see People v Swamp, 84 NY2d 725, 730 [1995]).

Defendant’s brother, the primary witness who appeared before the grand jury to relate the events surrounding Raymond Umber’s death, testified that on the afternoon of July 7, 1978 he (then age 16) had accompanied defendant (then age 17) and three friends to the Sylvan Beach pier to go swimming. In order to access the pier, the group had to climb over a fence separating the beach area from the pier. As they were leaving the area, 12-year-old Umber was climbing the fence and walking toward the pier. Once defendant’s brother climbed back over the fence, defendant was the only member of their group left on the pier side with Umber. At that point, defendant told his brother that he planned to “push the bastard in,” referring to Umber, and then ran some distance down the pier to do so. Defendant’s brother observed defendant push Umber from behind at about shoulder level and saw the victim fall to the pier, striking his head on the concrete before sliding into the water.

According to defendant’s brother, when he and the others in the group saw or heard defendant push Umber into the water, they “yelled for him to help him, and then [defendant] went to me, he was swimming like in an under-water motion, and then he told us to run and we just took off.” Based on this gesture, the group was “under the impression [the victim] was swimming,” and, therefore, none of them attempted to help Umber or sought any assistance for him. As they were running to a friend’s home, defendant shook his head, indicating to his brother that the victim was not, in fact, swimming, as defendant’s earlier gesture had led him to believe. When the group arrived at the house, defendant’s brother inquired if Umber was swimming, and defendant responded no. Defendant then threatened that if any of them reported the incident they would all go to jail because they were present at the scene. Defendant’s brother and the other witnesses who testified before the grand jury explained that as a result of defendant’s continuing threats and directions to keep silent none of the group alerted the authorities to the victim’s plight.

This evidence, viewed in the light most favorable to the People, satisfies the threshold legal sufficiency standard (see People v Bello, 92 NY2d at 526). Defendant’s act of pushing the young victim with enough force to cause him to hit his head on the concrete pier and then fall into the water and defendant’s abandonment of the submerged victim, paired with the testimony that defendant misled his friends regarding the victim’s peril, discouraged them from offering assistance and subsequently threatened his friends into remaining silent once they learned the truth, establish a prima facie case of depraved indifference murder (see People v Kibbe, 35 NY2d 407 [1974], writ of habeas corpus granted with conditions sub nom. Kibbe v Henderson, 534 F2d 493 [1976], revd 431 US 145 [1977]). Thus, defendant has failed to substantiate his allegation that the indictment was improperly obtained.

Defendant also contends that the trial court erred in admitting the testimony of his wife over his objection that his statements to her regarding the victim’s death were protected by the marital privilege. This contention is meritless.

CPLR 4502 (b) provides that “[a] husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.” The privilege, which is “[d]esigned to protect and strengthen the marital bond, . . . encompasses only those statements that are ‘confidential,’ that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship” (Poppe v Poppe, 3 NY2d 312, 315 [1957], rearg denied 3 NY2d 941 [1957]; see Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73 [1982]). Communications or threats made during the course of physical abuse are not entitled to be cloaked in the privilege because the maker of the statement is not “relying upon any confidential relationship to preserve the secrecy of his acts and words” (People v Dudley, 24 NY2d 410, 415 [1969]; see People v Patterson, 39 NY2d 288, 304 [1976], affd 432 US 197 [1977]; People v Edwards, 151 AD2d 987, 987 [4th Dept 1989], lv denied 74 NY2d 808 [1989]).

Here, there is ample record support for the undisturbed finding of the trial court that defendant’s statements to his wife were not confidential. Defendant’s wife gave a statement to the police in which she described how defendant was choking and threatening her while he told her about the crime. During this episode, defendant stated that he was so mad that he could kill her “just like he did with that kid.” Under these circumstances, County Court properly concluded that defendant’s inculpatory statements were not made in the context contemplated by the privilege (see People v Edwards, 151 AD2d at 987). We have reviewed defendant’s remaining contentions related to his wife’s testimony and conclude that they are meritless.

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

G.B. Smith, J.

(dissenting). Because defendant did not waive or forfeit his right to a defense based upon the statute of limitations, I dissent and would vacate defendant’s conviction.

Defendant was indicted for depraved indifference murder in violation of Penal Law § 125.25 (2). He was found not guilty of that charge, however, and was convicted on the charge of criminally negligent homicide (Penal Law § 125.10). Defendant was sentenced to U/s to 4 years in prison and he has served that sentence. The evidence was that in 1978, defendant, then 17 years old, pushed a boy 12 years old into water and cement in an area where defendant and some other youths had been swimming. The charges were not brought until 21 years later when the defendant’s brother, angered that defendant was having an affair with the brother’s wife, went to the police and an investigation resulted.

Defendant was convicted not of depraved indifference murder, but of criminally negligent homicide. Prior to trial, defendant, acting on the basis of an indication from the trial court that it would not consider a charge on a lesser included offense unless the defendant moved for it prior to trial, moved for a charge on the lesser included offenses of manslaughter and criminally negligent homicide. The People opposed the motion as premature. The court ruled that it would base the decision on the trial evidence. Following the trial, the defendant requested a charge on criminally negligent homicide as a lesser included offense of depraved indifference murder. Defendant did not request a charge on the lesser included offense of manslaughter in the second degree. The trial judge requested that the defendant waive the statute of limitations for criminally negligent homicide. The defendant refused to do so but asserted that he was entitled to the charge. The court gave the charge as a lesser included offense and ruled that by requesting the charge, defendant waived his right to object to a conviction and sentence. Following trial, defendant moved pursuant to CPL 330.30 and 30.10 to set aside the conviction of criminally negligent homicide on the ground that it violated the statute of limitations. Defendant again asserted that he did not waive the statute of limitations. The trial court denied the motion.

On this appeal the prosecution contends that when the defendant requested the charge of criminally negligent homicide, he waived the defense of the statute of limitations. Defendant, however, specifically refused to waive the statute of limitations. Thus, no waiver with respect to the statute of limitations occurred. Moreover, there was no forfeiture, that is, a loss of a statutory right to assert the bar of the statute of limitations, merely by a request to charge a lesser included offense.

If there was a reasonable view of the evidence that defendant committed the lesser crime, he was entitled to the instruction on criminally negligent homicide. CPL 300.50 (2) states that if the defendant requests a charge on a lesser included offense and if there is a reasonable view of the evidence that the defendant committed the lesser included offense but did not commit the greater offense, the court “must” give that charge. By contrast, a defendant who objects to the lesser included charge must so state before it is given or he or she waives the right to object to it being given (CPL 300.50 [1]). In People v Richardson (88 NY2d 1049 [1996]) and People v Ford (62 NY2d 275 [1984]), both cited by the majority for the proposition that defendant’s conviction and sentence can stand because he has waived the statute of limitations in this case, the defendants argued that the charge on the lesser included offense should not have been given, but failed to object to the charge at trial. Because each defendant acquiesced in the charge when it was given, he waived objection to the charge and could not be heard to complain about his conviction of the lesser offense. Those cases do not address the issue currently before us, namely the effect of the statute of limitations on the conviction of and sentence upon the lesser included charge. Moreover, other cases cited by the majority (People v Kohut, 30 NY2d 183 [1972]; People v Blake, 193 NY 616 [1908], affg 121 App Div 613 [1st Dept 1907]; People v Dickson, 133 AD2d 492 [3d Dept 1987]) all stand for the proposition that a defendant waives the statute of limitations if he does not raise it at an appropriate time, an issue not before us.

It is clear that the evidence before the grand jury was sufficient to indict defendant for depraved indifference murder. At the same time, defendant was entitled to argue that the evidence was not sufficient to convict him of that offense but only of a lesser included offense, criminally negligent homicide. Once the defendant was convicted only of criminally negligent homicide, the statute of limitations precluded that conviction and the sentence imposed.

I agree with the majority that there is no validity to the defendant’s contention that his wife could not testify against him because of the marital privilege. Defendant’s confession to his wife was made during the course of his abuse of and threats to his wife. Therefore, the marital privilege did not apply.

Accordingly, I would reverse the conviction of the defendant.

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

Order affirmed.

      . CPL 300.50 provides, in part, that the trial court may submit lesser included offenses as an alternative to the highest offense in the indictment where there is “a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50 [1]). The statute further establishes that “[i]f the court is authorized by subdivision one to submit a lesser included offense and is requested by either party to do so, it must do so. In the absence of such a request, the court’s failure to submit such offense does not constitute error” (CPL 300.50 [2]).

      . Defendant’s pretrial motion included manslaughter, which is subject to a five-year statute of limitations, among the lesser included offenses he might request. At the close of proof, however, defense counsel requested only that criminally negligent homicide be submitted to the jury. Of course, the People could not have requested that the jury be charged with respect to any of the lesser included offenses, including second-degree manslaughter, because they were time-barred.

      . Although depraved indifference murder often involves acts directed at a number of victims (see e.g. People v Russell, 91 NY2d 280 [1998]; People v Gomez, 65 NY2d 9 [1985]; People v Fenner, 61 NY2d 971 [1984]), we note that Penal Law § 125.25 (2) encompasses depraved indifference murder of a single victim (see e.g. People v Best, 85 NY2d 826 [1995]; People v Kibbe, 35 NY2d 407 [1974], supra; People v Poplis, 30 NY2d 85 [1972]).

      . Neither the trial court nor the People noted or argued that the lesser included offense to depraved indifference murder (Penal Law § 125.25 [2]) was manslaughter in the second degree (Penal Law § 125.15 [1]) rather than criminally negligent homicide (Penal Law § 125.10). Penal Law § 125.25 (2) states, “A person is guilty of murder in the second degree when: ... 2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” Penal Law § 125.15 (1), a lesser included offense of depraved indifference murder, states, “A person is guilty of manslaughter in the second degree when: 1. He recklessly causes the death of another person.” Penal Law § 125.10, a lesser included offense of manslaughter, second degree, states, “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”

      . Arguably, the trial court should have refused to give the charge on criminally negligent homicide without first giving a charge on manslaughter in the second degree. The court charged the jury that for it to convict defendant of murder in the second degree, the People had to prove that defendant engaged in reckless conduct indicating a depraved indifference to human life. A charge on the lesser included offense of manslaughter in the second degree would require the People to prove that defendant recklessly caused the death of another person. If the jury found the defendant not guilty of both murder in the second degree and manslaughter in the second degree, the charge of criminally negligent homicide would have been appropriate.