author: Jones, J. Meyer, J.

text:
    Minister, Elders & Deacons of the Reformed Protestant Dutch Church of the City of New York, Respondent, v 198 Broadway, Inc., et al., Respondents, and Henry Modell and Co., Inc., Appellant.
    Argued May 3, 1983;
    decided June 9, 1983

      POINTS OF COUNSEL

      Simon H. Rifkind, Walter Feldesman, Lawrence A. Mendelker, Robert S. Smith, David Rosenberg and Eleanor J. Ostrow for appellant.
    I. Petitioner and 198 Broadway colluded unlawfully to terminate the sublease. (Global Realty Corp. v Kannel Corp., 9 Misc 2d 241; Eten v Luyster, 60 NY 252; Ashton Holding Co. v Levitt, 191 App Div 91; Schlaich v Blum, 42 Misc 225; La Shelle Co. v Armstrong Co., 263 NY 79; Wood v Duff-Gordon, 222 NY 88; Loudave Estates v Cross Rds. Improvement Co., 28 Misc 2d 54, 20 AD2d 864; Rosenthal Jewelry Corp. v St. Paul Fire & Mar. Ins. Co., 21 AD2d 160, 17 NY2d 857; Bray Terms. v Grand Union Co., 74 AD2d 965; 455 Seventh Ave. v Hussey Realty Corp., 295 NY 166.) II. 198 Broadway was obligated under the sublease to renew the master lease. (Canadian Ind. Alcohol Co. v Dunbar Molasses Co., 258 NY 194; City of New York v New York Jets Football Club, 90 Misc 2d 311; 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; Todem Homes v Freidus, 84 Misc 2d 1023, 55 AD2d 640; Loudave Estates v Cross Rds. Improvement Co., 28 Misc 2d 54, 20 AD2d 864.) III. At a minimum, Modell is entitled to discovery and a trial on whether the formal .distinctions between petitioner and 198 Broadway were sufficiently observed. (Walkovszky v Carlton, 18 NY2d 414; Port Chester Elec. Constr.

      Corp. v Atlas, 40 NY2d 652; Cone v Acme Markets, 41 AD2d 409; Thorburn v Wende, 235 App Div 424; Hausauer v Dahlman, 18 App Div 475, 163 NY 567; Feig v Hart, 138 Misc 749; Schlaich v Blum, 42 Misc 225.)

      Anthony M. Dattoma for Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York, respondent.
    I. There exists no contractual or good faith implied obligation compelling exercise of tenant’s option to renew the overlease. (Loudave Estates v Cross Rds. Improvement Co., 28 Misc 2d 54, 20 AD2d 864; Custer Bldrs. v Quaker Heritage, 41 AD2d 448; Liebowitz v Bickford’s Lunch System, 241 NY 489; J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392; Robinson v Jewett, 116 NY 40; Rae Co. v Courtney, 250 NY 271; Bostwick v Frankfield, 74 NY 207; Dunkum v Maceck Bldg. Corp., 256 NY 275; Smith v Roberts, 91 NY 470.) II. The court will not rewrite unambiguous agreements. (Arden v Freydberg, 9 NY2d 393; Grombach Prods. v Waring, 293 NY 609; Matter of Western Union Tel. Co. [American Communications Assn., C.I.O.], 299 NY 177; Sperling v Great Amer. Ind. Co., 7 NY2d 442; Rosenthal v American Bonding Co. of Baltimore, 207 NY 162; Streat Coal Co. v Frankfort Gen. Ins. Co., 237 NY 60; Frankel v Tremont Norman Motors Corp., 10 AD2d 680, 8 NY2d 901; Wilson Sullivan Co. v International Paper Makers Realty Corp., 307 NY 20.) III. The courts will not interfere with the business judgment of corporate directors. (Auerbach v Bennett, 47 NY2d 619; Pollitz v Wabash R. R. Co., 207 NY 113; Rapid Tr. Subway Constr. Co. v City of New York, 259 NY 472; Lowendahl v Baltimore & Ohio R. R. Co., 247 App Div 144, 272 NY 360; Billy v Consolidated Mach. Tool Corp., 51 NY2d 152; Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652.) IV. There is no justification to pierce the corporate veil. (Lowendahl v Baltimore & Ohio R. R. Co., 247 App Div 144, 272 NY 360; Schlaich v Blum, 42 Misc 225; Eten v Luyster, 60 NY 252.) V. Appellant’s request for discovery is totally inappropriate. (Newberger v American Sur. Co., 242 NY 134; Billy v Consolidated Mach. Tool Corp., 51 NY2d 152; Bankers Trust Co. v 1 East 88th St. Corp., 283 NY 369; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456; Oxford Commercial Corp. v Landau, 12 NY2d 362.)
   OPINION OF THE COURT

Jones, J.

Where a sublease is expressly made subject to the terms of the master lease, the subtenant has no legal right to compel the tenant to exercise an option granted the latter for renewal of the master lease of the entire premises with a 12-story building in order to enable the subtenant to exercise an option granted it for renewal of its sublease of the ground floor and a part of the basement only, in the absence of either proof of an agreement on the part of the tenant to exercise its option or proof of special circumstances entitling the subtenant to such relief.

In January, 1959, Daniel S. Levy and Joseph Richter as fee owners, leased premises at 198 Broadway in the Borough of Manhattan and City of New York to Arthur H. Bienenstock. The master lease covered the entire premises, 23 feet front by approximately 161 feet, 9 inches deep, on which stood a 12-story office building, and was for an initial term from January, 1959 to January 15, 1980. The tenant was given two successive options to renew for periods of 21 years each. On October 1, 1959, Bienenstock subleased the store as it then existed on the ground floor together with part of the basement thereunder to Henry Modell & Co., Inc., for a term of 20 years, 3¥2 months to end on January 15,1980. The sublease contained the following paragraphs pertinent to the present dispute:

“52. Provided that the Tenant is not in default of any of the terms, conditions and covenants of this Lease, it shall have the option to renew this Lease for an additional period of twenty-one years on the same terms and conditions as contained in the present lease, provided that the Tenant shall give notice in writing to the Landlord by registered mail of the exercise of such option at least one year prior to the expiration of this lease. The Tenant shall have the further option, under the same terms and conditions as aforesaid, to renew this lease for a second renewal term of twenty-one years upon giving of notice to the Landlord as aforesaid on or before one year prior to the expiration of the first renewal term.

“53. The Tenant has been informed that the Landlord named herein is the holder of a lease on the land and building in which the demised premises are situated and is not the owner of the fee. Accordingly, the lease is subject to the terms, covenants and conditions of the said major lease dated January 8, 1959 between Daniel S. Levy and Joseph Richter as lessors and Arthur H. Bienenstock as lessee.”

By agreement dated December, 1965, Bienenstock assigned his interest as tenant under the master lease to 198 Broadway, Inc., a New York corporation, subject to the terms and conditions contained in the sublease to Modell, and 198 Broadway, Inc., assumed and agreed to carry out the obligations of Bienenstock as landlord under the sublease. Thereafter on February 1,1966, the Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York (Church), a corporation organized under the royal charter of 1696 and existing under the laws of the State of New York, acquired fee title to the underlying premises at 198 Broadway. The master tenant, 198 Broadway, Inc., is a wholly owned subsidiary of the Church.

In November, 1978, Modell notified 198 Broadway, Inc., of its intention to exercise its option to renew the sublease for an additional period of 21 years. In January, 1980, 198 Broadway, Inc., notified Modell that it had not exercised its right to renew the master lease and took the position that in such circumstance Modell had no effective option to renew the sublease.

When Modell’s undertenant, The Camera Barns, Inc., failed to vacate the premises, the Church brought a holdover proceeding in Civil Court of the City of New York. The Church moved for summary judgment in its favor, and Modell cross-moved for summary judgment in its favor. Civil Court held that there were material issues of fact requiring a trial, denied the Church’s motion, and granted Modell’s cross motion unless the Church and 198 Broadway, Inc., submitted to an examination before trial as previously ordered. The Appellate Term reversed the order of Civil Court and granted summary judgment to the Church. The Appellate Division affirmed, one Justice dissenting, and thereafter granted leave to Modell to appeal to our court. In our turn, we affirm the grant of summary judgment to the Church.

The option granted Modell to renew its sublease of the ground floor and basement for an additional period of 21 years set forth in paragraph 52 of the sublease was expressly made subject in paragraph 53 to the terms, covenants and conditions of the master lease. In substance the tenant was given an option under the master lease to renew its tenancy of the entire 12-story building, and the subtenant was given an option, if the tenant renewed the master lease, to renew its sublease of the ground floor and basement. We agree with the courts below, however, that nothing in the master lease or in the sublease imposed any obligation on the tenant to exercise its option to renew the master lease so that the subtenant could effectively exercise its option to renew the sublease. The pyramid structure of the leases was erected before 198 Broadway, Inc., became tenant and before the Church became the fee owner. Nothing suggests the existence of any obligations between the original parties when the master lease and the sublease were initially executed other than those manifested in the written documents themselves.

Although Modell argues in a conclusory manner that when the Church became fee owner and its subsidiary became the tenant under the master lease, both became obligated to accept Modell’s exercise of its option to renew the sublease, it offers no tender of proof in admissible form, no submission that facts essential to justify opposition may exist that could not have been stated (other than a litany of theoretical questions followed by hypothetical speculations calculated to justify a fishing expedition) (CPLR 3212, subd [f ]), and no legal theory to sustain its conclusion. No tender is made of any parol evidence from which to ascertain the intent of either the original parties or the present parties to the master lease and the sublease with respect to the interrelation of the options to renew. No proof is tendered of any special understanding at the time the master lease was assigned to 198 Broadway, Inc., or at the time the Church acquired fee title to the underlying premises. The record shows that the Church and 198 Broadway, Inc., are separate and distinct corporations existing under the laws of the State of New York. No evidence is offered of any fraud or other circumstance warranting the exercise of the court’s power to pierce the corporate veil or to treat parent and subsidiary as a single corporate entity for present purposes. No evidence is tendered of bad faith on the part of either the subsidiary or the parent.

The documentary proof demonstrates the existence of sound business reasons for 198 Broadway, Inc., in its own best interests not to exercise its option to renew the master lease, and for the Church not to encourage its subsidiary to exercise that option. The sublease covered only the ground floor store and part of the basement; exercise of the option of renewal in the master lease, however, would have required the tenant to extend its lease of the entire 12-story building. No suggestion is advanced, and none could be, that the tenant could have renewed the master lease with respect only to the space leased to the subtenant. Additionally, it is noted that, in a time of rising rents, neither the master lease nor the sublease contains any provision for increase in the net annual rental in the event of the exercise of the options for renewal (other than a nominal, unexplained increase in annual rent of $28.08 in the master lease).

In the circumstances disclosed in this record the court is obliged to determine the rights of the parties in accordance with the express terms of the legal documents executed by them. The subtenant had an option to renew but only if the tenant chose to exercise its option to renew the master lease, which the tenant chose not to do. There is no proof that the tenant ever undertook any obligation to exercise its option to renew the master lease for the benefit of the subtenant so that the latter might effectively exercise the option it had to renew the sublease. Nor is any proof tendered of special circumstances in the particular case entitling the subtenant to the relief that it seeks.

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

Meyer, J.

(dissenting). Respectfully, I dissent. At the very least the sublease is ambiguous and the subtenant, Modell, was entitled to complete the discovery ordered by the Civil Court in order to establish the special circumstances, upon the absence of which the majority predicates affirmance. Indeed, I agree with Justice Milonas that there is enough in the present record to require reversal and denial of summary judgment.

Paragraph 52 of the sublease granted Modell an unconditional option. The fact that the sublease was stated by paragraph 53 to be subject to the terms and conditions of the overlease does not by itself make Modell’s option to renew conditional upon the exercise by 198 Broadway of the option to renew in the overlease. Rather, because the option accorded 198 Broadway by the overlease is likewise unconditional, renewal, being within the sole control of 198 Broadway, became obligatory upon it upon Modell’s exercise of the absolute option granted it by paragraph 52 (cf. Bradley v General Store Equip. Corp., 183 Misc 199, 203, affd without opn 268 App Div 852 [covenant to exercise option implied from execution of sublease for longer than original term of overlease]).

Had the parties intended otherwise, it would have been a simple matter expressly to spell out in the proviso of paragraph 52 the fact that Modell’s option was conditioned upon a corresponding option exercise by 198 Broadway. At best, therefore, there being nothing in either paragraph 52 or 53 (or for that matter elsewhere in the lease) which explicitly conditions Modell’s option, the general reference to the overlease in paragraph 53 creates an ambiguity authorizing the introduction of parol evidence in order to ascertain the intent of the parties (cf. Canadian Ind. Alcohol Co. v Dunbar Molasses Co., 258 NY 194, 198-199). Nor is Loudave Estates v Cross Rds. Improvement Co. (28 Misc 2d 54, affd without opn 20 AD2d 864), relied upon by the Appellate Division majority, to the contrary, for that case was decided after trial and involved a sublessee’s effort to use an ambiguous renewal clause in its sublease as a predicate for its exercise of the renewal privilege in the overlease.

The more particularly is it error to affirm in light of the record. Contrary to the majority’s suggestion (p 176), the fact that, in a time of rising rents, the master lease contained no provision for increase of the rent payable by 198 Broadway does not provide sound business reason for its refusal to renew the master lease, for there is no showing that 198 Broadway could not profit from doing so by increasing the rents for the 11 floors of the building not occupied by Modell. When, to that strong suggestion that the sublessor acted not in its own interests but in those of its parent-lessor, are added the facts that 198 Broadway continued to bill the tenants of the building although its lease had ostensibly expired and that checks were deposited interchangeably in the account of the Church and of 198 Broadway, there can be no question that the latter should be put to its proof before Modell is evicted in contravention of the option for which, by agreeing to an increase in rent, it had given consideration.

Chief Judge Cooke and Judges Jasen, Wachtler and Simons concur with Judge Jones; Judge Meyer dissents and votes to reverse in a separate opinion.

Order affirmed, with costs.


source: Caselaw Access Project

author: Jones, J. Jasen, J.

license: Public Domain

text:
    In the Matter of Daniel Brockway, Respondent, v Donald H. Monroe, as County Judge of the County of Chemung, et al., Appellants.
    Argued May 2, 1983;
    decided June 9, 1983

      POINTS OF COUNSEL

      Bruce Crew III, District Attorney {James T. Hayden of counsel), for appellants.
    The purported conferral of immunity for collateral matters elicited upon cross-examination constituted an ultra vires act on the part of the Trial Judge. (Matter of Doyle, 257 NY 244.)

      Gerald A. Keene and Joseph J. Balok, Jr., for respondent.
    The conferral of immunity by the Steuben County Court and District Attorney was in compliance with CPL article 50. (Matter of Doyle, 257 NY 244; People v McFarlan, 89 Misc 2d 905, 52 AD2d 112, 42 NY2d 896; Matter of Anonymous (S.) v Arkwright, 5 AD2d 792; People v Williams, 81 AD2d 418, 56 NY2d 916; People v Webster, 139 NY 73; Shepard v Parker, 36 NY 517; People v Kass, 25 NY2d 123; People v Wilson, 108 Misc 2d 417.)
   OPINION OF THE COURT

Jones, J.

Where the court, the prosecutor, the defense attorney and counsel for the witness have chosen to depart from the normal question-by-question conferral of transactional immunity on a prosecution witness as contemplated by CPL 50.20 and 50.30, and have charted their own course, agreeing that the witness shall receive immunity for all testimony given by him subject only to rulings by the court on objections by the prosecutor, whether the witness received transactional immunity must be determined by reference to the procedure which the principals chose to follow. In such a case, in the absence of timely objection by the prosecutor to the question, if the testimony given in answer is responsive to the question asked, the witness receives immunity for the transaction to which he testified.

Petitioner, Daniel Brockway, was indicted by a Che-mung County Grand Jury on January 9, 1981 for criminal sale of a controlled substance in the third degree and conspiracy in the second degree. The indictment alleged that Brockway had sold cocaine to one Camille Comfort on November 1, 1980. Subsequently, Brockway was subpoenaed by the Steuben County District Attorney’s office to testify for the prosecution’s case against Joseph and Larry Comfort, who were standing trial in Steuben County Court on charges of murder and attempted murder of State Police officers investigating cocaine sales in Steuben County.

On January 20, 1982, Brockway appeared with counsel at the Steuben County trial. Before he was called to the witness stand, his attorney informed the prosecutor that Brockway, on being called to testify, would invoke his Fifth Amendment privilege and refuse to answer any questions on the ground that the answers might tend to incriminate him. In a chambers conference, the Steuben County Judge was advised of Brockway’s position, and the prosecutor asked the court to confer immunity on him pursuant to CPL 50.20. The prosecuting attorney indicated that it would not be necessary to proceed by way of a question-by-question grant of immunity on direct examination and that such a procedure would also not be necessary on cross-examination so long as the questions concerned the transactions in issue. The prosecutor agreed to be guided by the court’s direction as to the scope of answers to questions on collateral matters but took the position that he would recommend against immunity on collateral issues, so as to leave it up to the witness and his attorney to decide whether to invoke his Fifth Amendment rights regarding such questions.

Brockway’s attorney informed the court that to the extent that the prosecutor was suggesting something less than full transactional immunity he would counsel his client not to answer any questions. He contended that the court only had authority to grant full transactional immunity subject to any evidentiary rulings. The prosecutor sought to clarify the situation by stating that he was willing to grant full transactional immunity with respect to the answers to questions asked and that the only limitations would be as to improper questions. The court then indicated that any immunity granted would be full transactional immunity and that the witness would be clothed with immunity as to anything to which he testified. As to collateral matters, the court informed the attorneys that it would determine whether answers to the questions would be allowed and that if in its discretion the court directed the witness to answer and allowed the question even if it were collateral then immunity would attach. The court noted that the prosecutor would have the opportunity to object to collateral or immaterial matters and that rulings would be made as they went along.

The prosecutor then asked whether the court had been notified by defense counsel of the collateral acts on which the witness would be questioned, and the court responded that it had not been so advised. The court instructed Brockway’s attorney to counsel his client that if there were an objection to a collateral matter the witness was not to answer until the court had an opportunity to rule on the objection. If the witness were to answer in violation of this direction, the court indicated that it would strike the answer so that it could never be used against him. Brockway’s counsel stated that he would so advise his client and that he had already informed him that all answers must be responsive to the questions.

The prosecutor then advised the court that he thought an on-the-record refusal to answer questions was required. The court responded that he had not gotten to that point yet and that the witness should be called to the stand. After being sworn in as a witness and answering several preliminary questions, Brockway asserted his Fifth Amendment right not to answer a question as to whether he knew Larry Comfort, one of the defendants in the Steuben County trial. The court then conferred transactional immunity on the witness in accordance with the prior discussion and ordered him to answer.

After direct examination by the prosecutor, the witness was cross-examined by defense counsel. During this cross-examination, the following testimony was elicited:

“Q. And did you subsequently undertake to sell that cocaine?

“A. Yes, I guess.

“Q. Did you or didn’t you?

“A. I don’t really remember. Yes.

“Q. You did?

“A. Yes.

“Q. To whom?

“A. I don’t know.

“Q. You don’t know?

“A. I’m sorry. I didn’t sell this cocaine. I sold cocaine earlier.

“Q. To whom?

“A. Camille Comfort.

“Q. When was that?

“A. Around the first of November”.

At this point, the prosecutor broke in and asked to approach the Bench. He contended that the witness’ response — that he had sold cocaine earlier — to the question whether he sold this particular cocaine was volunteered and nonresponsive. The court agreed that it was nonresponsive and directed the jury to disregard the witness’ answer as well as the questions and answers that followed. Defense counsel’s exception to the court’s ruling was noted.

By notice of motion dated March 15, 1982, Brock way moved to dismiss his Chemung County indictment for criminal sale of a controlled substance in the third degree and conspiracy in the second degree. He asserted that he had received transactional immunity by testifying at the Steuben County trial about the November 1 sale of cocaine to Camille Comfort which was the subject of the Chemung County indictment. The motion was denied by Chemung County Court in a decision dated April 27,1982. The court found that the immunity given was limited to the transaction in Steuben County and that petitioner’s answer to the question was not responsive but was volunteered so that it could not form the basis for transactional immunity.

Brockway then commenced this article 78 proceeding in the Appellate Division, Third Department, by an order to show cause signed on June 2,1982. He sought a judgment directing the Chemung County Judge to dismiss the indictment on the ground that he had obtained immunity on the charges and restraining the Judge from proceeding to trial of the indictment until further direction from the Appellate Division.

By order entered August 9,1982, the Appellate Division granted the petition and ordered the indictment dismissed. The court found that Brockway’s statements were reasonably responsive to the questions asked and that a review of the record failed to disclose that the responses were made in bad faith or could not have been anticipated. According to the court, the Steuben County Judge had ruled that if questioning were allowed and Brockway answered in a responsive fashion he would be clothed with immunity, and this is exactly what had happened here.

Justice Levine, in a dissenting opinion, contended that, even assuming that Brockway’s answer was responsive to the question, the Steuben County Judge in striking the testimony had ruled not only that it was unresponsive but that it related to a matter totally collateral to the issues on trial. The dissenter viewed the prosecutor’s request for immunity as only covering relevant and material questions and not extending to collateral acts which had no relevance to the Steuben County trial or indictment. He noted that there had been a failure to follow the multistep procedure outlined in CPL 50.20 and 50.30 for granting transactional immunity — i.e., the witness expressly refuses to answer a specific question based on the privilege against self incrimination, the District Attorney requests the court to confer immunity, and the court then orders the witness to answer the question after advising him that he will receive immunity on doing so. The dissenting Justice observed that this procedure had been set forth in the statute to avoid inadvertent, overly broad “immunity baths” which might have resulted under the automatic immunity provisions of prior law. He took the position that the prosecutor in this instance had not waived this multistep procedure but rather had insisted on proceeding on a question-by-question basis. According to the dissent, the questions posed by defense counsel could have been answered by testimony relevant and material to the issues in the trial so that the prosecuting attorney could not have known in advance that the witness would respond by testifying to an unrelated matter. The dissenter concluded that the prosecutor had promptly moved to strike the testimony when the witness testified about an unrelated transaction. Rather than affording Brockway transactional immunity as to his testimony, the dissenting Justice would have given him use and derivative use immunity only.

The dissenter reasoned that in addition to the multistep procedure set out in CPL 50.20 and 50.30, other statutory and case law limitations had been adopted to prevent overly broad and unnecessary conferrals of immunity. He pointed to CPL 190.40 (subd 2, par [b]) which provides that immunity will not be granted when a witness’ answer is volunteered and unresponsive and to case law that immunity will not extend to testimony which has a wholly insubstantial relation to the crime charged. The dissenting Justice saw even more compelling reasons to exclude immunity for answers to cross-examination on collateral matters. He noted that any prosecution witness is subject to cross-examination as to any immoral, vicious or criminal acts which may affect his character and show him to be unworthy of belief. He concluded that to extend transactional immunity to testimony on such collateral matters would create a risk of immunity baths far beyond the control of the prosecutor and far greater than those which the procedure of CPL 50.20 and its predecessors sought to avoid. He believed that the danger of this uncontrollable abuse of immunity would be so great as effectively to eliminate the use of immunity to prosecute crime.

We now affirm the judgment of the Appellate Division from which respondents have appealed.

The Legislature by enacting CPL 50.20 and 50.30 has created a multistep procedural scheme by which a court at the express request of the prosecutor in any criminal proceeding other than a Grand Jury proceeding may confer transactional immunity on a witness. Under these provisions, immunity is granted in the following fashion: the witness invokes his right not to give evidence on the ground that it may incriminate him; the prosecutor requests the court to grant immunity to the witness; the court orders the witness to give the requested evidence notwithstanding his assertion of his privilege against self incrimination and advises him that he will receive immunity on doing so; and the witness complies with the order by giving the requested evidence (see Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 50.20, p 316). This procedure contemplates that the witness will be given immunity on a question-by-question basis under which the witness claims his privilege not to answer a specific question, the prosecutor seeks immunity as to the answer to that question, and the court orders the witness to respond to the question conferring immunity for the particular response. Although use of this procedure may prove cumbersome and overly mechanical when applied to extended questioning, it has the salutary effect of permitting the court, the prosecutor, and the witness to know whether immunity is being granted and the prosecutor to decide whether the anticipated response to a particular question will be of sufficient assistance to the prosecution’s case to justify requesting immunity for the response (see Matter of O’Neil v Kasler, 53 AD2d 310, 317-320). In fact, this orderly, multistep process was designed by the Legislature to avoid conferring overly broad and unnecessary grants of immunity (id.).

Although nothing in the statute expressly precludes the prosecutor and counsel for the witness with the approval of the court from adopting a different procedure in an individual instance or prevents the court from granting immunity to a witness’ entire testimony subject to specific rulings on collateral questions and other evidentiary objections, the immunity at issue here is of legislative creation which ordinarily should be conferred in accordance with the statutory mandate (see People v Dunbar, 53 NY2d 868; Matter of Doyle, 257 NY 244).

The record in this case makes clear that the court, the prosecutor, the defense attorney and counsel for the witness chose not to use a question-by-question grant of immunity but rather chose to follow a different procedure. Although the prosecutor advised the court that it was not necessary to proceed question by question so long as the questions concerned the transactions in issue, he then agreed to be guided by the court’s direction as to the scope of the answers to questions on collateral matters. He later consented to the court’s statement that it would decide whether petitioner would be allowed to answer questions even if they were collateral and that the prosecutor would have the opportunity to make objections to questions on collateral issues but the court would make the final ruling. The court made it clear that if the questions were allowed immunity would be granted. It is thus evident that the principals here agreed to depart from the statutorily prescribed procedure and chose to chart their own course. In such a case, whether the witness has obtained transactional immunity must be determined by reference to the procedures which were followed.

Turning then to consideration of the transcript in this case, we conclude that full transactional immunity was to be granted the witness for all of his testimony subject to the right of the prosecutor to object to collateral or immaterial inquiries and to obtain a ruling thereon from the court, with the further understanding that if the witness answered before the court had an opportunity to rule on the objection the response would be stricken so that it could not be used against him. The witness, however, was instructed not to answer questions as to which an objection was raised until the court had made its ruling.

Here, the answer given by the witness, Brockway, was unquestionably responsive to the question put to him — as to whom he had earlier sold cocaine — and was not gratuitously volunteered. It has been observed that it is very difficult to deprive a witness of immunity based on a nonresponsive or volunteered answer and that a high burden is placed on the prosecutor to establish nonresponsiveness (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.40, p 244; see People v Perri, 53 NY2d 957, affg on opn at 72 AD2d 106; People v McFarlan, 42 NY2d 896, revg on opn at 89 Misc 2d 905). In this instance a reading of the transcript leaves no room for doubt. The witness’ memory had faltered, and he was having difficulty remembering whether and to whom he had sold cocaine. When asked for a second time whether he knew to whom he had sold cocaine, already having indicated that he did not know, he apologized for his prior answers and corrected himself by saying “I didn’t sell this cocaine. I sold cocaine earlier.” Then came the critical question by defense counsel to which the prosecutor failed to object — “To whom?” The witness responded, “Camille Comfort”, and was then further questioned — “When was that?” — to which he responded, “Around the first of November”. It was only after both questions had been asked and answered that the prosecutor came to life, at a point too late to deny the witness immunity with respect to the responsive answers he had already given. In these circumstances we agree with the majority at the Appellate Division that the witness received transactional immunity with respect to the sale of cocaine to Camille Comfort on or about November 1, 1980.

This case, in which Brockway was granted an immunity apparently unnecessary for the prosecution of the Steuben County trial and presumably unintended by the prosecutor, illustrates the compelling desirability of strict adherence to the procedures prescribed by sections 50.20 and 50.30.

For the reasons stated, the judgment of the Appellate Division should be affirmed, without costs.

Jasen, J.

(dissenting). I cannot agree with the majority’s conclusion that it is within the discretion of the trial court and the parties to determine the proper procedure for conferring transactional immunity. The Legislature has prescribed a detailed procedural statute clearly setting forth the steps which are to be taken by a defendant seeking a grant of immunity and, in light of that statute, I must conclude that there is no authority to deviate from that procedure and set up one’s own ground rules, contrary to the requirements of the statute. I must, therefore, respectfully dissent.

There is no basis at law for the majority’s view that “nothing in the statute expressly precludes the prosecutor and counsel for the witness with the approval of the court from adopting a different procedure in an individual instance or prevents the court from granting immunity to a witness’ entire testimony subject to specific rulings on collateral questions and other evidentiary objections”. (At p 188.) It seems to me that the detailed nature of the statute specifying as it does the precise method of requesting and receiving immunity indicates an express legislative intention that this be the exclusive method for granting immunity. That immunity is exclusively a creation of statute and, as such, can be invoked and can exist only where a statute has so authorized. (Matter of Doyle, 257 NY 244; 8 Wigmore, Evidence [McNaughton rev, 1961], § 2281.) The fact that the procedure established by the Legislature may in some cases prove to be cumbersome or time-consuming does not convey authority on the courts to deviate from the requirements of the statute. Had the Legislature intended the courts to have discretion in deciding whether or not to follow the statutory procedure, it could easily have so provided.

The majority, however, appears to interpret the Legislature’s failure to address any alternative means of obtaining and conferring immunity to be a tacit approval of other methods which will immunize the witness in a broader fashion than the question-by-question method prescribed by CPL 50.20 and 50.30. In my opinion, the proper interpretation of such legislative silence, particularly when a specific procedure is outlined in the statute, is that the Legislature intended to exclude any other alternatives. (McKinney’s Cons Laws of NY, Book 1, Statutes, § 74.) This is particularly true where a court in exercising discretion — in this case in granting immunity — does so solely on the basis of the authority conferred by legislative enactment. (People v Dunbar, 53 NY2d 868; Matter of Doyle, supra.) It is not unreasonable to conclude that the Legislature intended, in order to avoid inadvertent and unnecessary grants of immunity, that a specific scenario be followed before the court could exercise its legislatively granted authority to confer immunity.

Indeed, the very nature of the procedure established by CPL 50.20 and 50.30 indicates that the Legislature intended a procedure whereby the responsibility of seeking immunity would be upon the witness and that when he has asserted his Fifth Amendment rights, it then becomes the prosecutor’s responsibility to request that immunity be granted if he believes the information sought will justify granting the witness protection from other criminal charges. After considering the merits of the application, the court then is in a position to make its decision. This procedure, while perhaps “cumbersome” as it is termed by the majority, is not impracticable.

It is true that requiring the defendant to assert his Fifth Amendment privilege to each question he feels he should not be compelled to answer may be more time-consuming than allowing him to assert that privilege in a blanket fashion designed to cover every question he will be asked. So, too, it may be somewhat burdensome to require the prosecutor to request the court to instruct the witness to answer and then request that immunity be granted 1 the court may do so. Such a procedure, I believe, is nectt, sary despite its somewhat burdensome nature, not only because the Legislature has so directed, but because society’s interests as well as the interest of the witness are to be protected.

As for those of the witness, if he intends in the future to bar use of his testimony on the basis of the Fifth Amendment, he should assert that right in each situation and be compelled to testify in order to assure that he has been granted immunity as to the specific issue to be testified to.

The prosecutor, on the other hand, as the People’s representative, may only desire to have immunity granted for testimony he believes is critical, and not collateral, to the issues on trial. If he has any question whether the witness’ response will concern a collateral matter, rather than the case being tried, he may choose not to risk the People’s interest in prosecuting the witness on other charges in order to obtain testimony of a limited value in the case being prosecuted. Such a procedure also gives the prosecutor an opportunity to ascertain whether the witness’ testimony will be related to the matter being tried or to a collateral matter.

The case now before us demonstrates the necessity for a procedure which makes perfectly clear to all the interested parties the scope of the immunity being granted. Clearly, only the defendant would be cognizant of whether answers to collateral questions would tend to be incriminating and the onus of invoking the Fifth Amendment privilege in those regards should be placed squarely on him. As was cogently pointed out by Justice Levine in his dissenting opinion at the Appellate Division, “[i]t is elementary that any prosecution witness, including one immunized at the request of the District Attorney, is subject to cross-examination with respect to any immoral, vicious, or criminal acts which may affect his character and show him to be unworthy of belief * * * To extend transactional immunity to a witness’ answers on such collateral matters thus creates a risk of immunity baths beyond the control of the prosecutor and far greater than those which the statutory scheme of CPL 50.20 and its predecessor was designed to avoid.” (89 AD2d, at p 774.) Given the significant ramifications of the grant of immunity, I would hold that the Legislature was perfectly justified in requiring a specific procedure, as set forth in the statute, to be followed.

As noted by Justice Levine, such uncertainty was among the abuses of the predecessor statute’s automatic grant of immunity which lead the Legislature to enact this provision. The legislative history behind the enactment of this procedure was set forth in Matter of O’Neil v Kasler (53 AD2d 310). In that case, the Law Revision Commission had recognized that blanket grants of immunity conferred although the witness took no step to invoke the privilege subjected the system “to manipulation by witnesses”. (Matter of O’Neil v Kasler, supra, at p 317.) The concern expressed in the legislative history is that witnesses will be in a position to maneuver the testimony to secure a grant of immunity even though the testimony was not relevant to the case being tried. I would note that in this case the testimony about another unrelated drug deal was clearly irrelevant, as the trial court found.

The Law Revision Commission concluded that a requirement that the witness “positively assert his privilege would * * * notify ‘the person representing the state * * * that the witness regards the testimony as incriminating’ and afford ‘an opportunity to weigh the interests of the state against the value of the particular testimony sought’.” (Matter of O’Neil v Kasler, 53 AD2d 310, 318, supra, citing 1942 Report of NY Law Rev Comm, pp 354-355.) The commission adhered to its position and in 1953 the New York State Crime Commission adopted that position, also recommending a three-part procedure comparable to the present statute and designed to protect the interests of all involved in such a transaction. This recommendation was codified as section 2247 of the former Penal Law, the predecessor of the statute now under consideration.

In light of such clear legislative history, I cannot agree that the Legislature intended to allow the courts discretion to deviate from a procedure designed to protect the interests of all involved in the proceeding, particularly the interests of society, which the prosecutor bears the responsibility for protecting. Thus, I would agree with the Appellate Division in Matter of O’Neil (supra, at p 320) when it held that “the statute’s main thrust is to assure that a prosecutor will have advance warning that his questions [or those asked of his witness] may provoke incriminating responses, so that he can make a better-advised choice whether the value of the evidence sought from a witness outweighs the State’s interest in prosecuting him for such wrongdoing as his testimony may reveal.”

Since I believe that the clear mandate of the Legislature in enacting CPL 50.20 and 50.30 requires a holding that no immunity had been conferred upon defendant with regard to the sale of drugs in Chemung County, the order of the Appellate Division should be reversed and the petition to prohibit Chemung County Court from exercising its jurisdiction over defendant be dismissed.

Chief Judge Cooke and Judges Wachtler, Meyer and Simons concur with Judge Jones; Judge Jasen dissents and votes to reverse in a separate opinion.

Judgment affirmed, without costs.

      . The record does not disclose the relationship, if any, between Camille Comfort and Joseph and Larry Comfort.

      . CPL 50.20 provides:
      “1. Any witness in a legal proceeding, other than a grand jury proceeding, may refuse to give evidence requested of him on the ground that it may tend to incriminate him and he may not, except as provided in subdivision two, be compelled to give such evidence.
      “2. Such a witness may be compelled to give evidence in such a proceeding notwithstanding an assertion of his privilege against self-incrimination if:
      “(a) The proceeding is one in which, by express provision of statute, a person conducting or connected therewith is declared a competent authority to confer immunity upon witnesses therein; and

        “(b) Such competent authority (i) orders such witness to give the requested evidence notwithstanding his assertion of his privilege against self-incrimination, and (ii) advises him that upon so doing he will receive immunity.
      “3. A witness who is ordered to give evidence pursuant to subdivision two and who complies with such order receives immunity. Such witness is not deprived of such immunity because such competent authority did not comply with statutory provisions requiring notice to a specified public servant of intention to confer immunity.
      “4. A witness who, without asserting his privilege against self-incrimination, gives evidence in a legal proceeding other than a grand jury proceeding does not receive immunity.
      “5. The rules governing the circumstances in which witnesses may be compelled to give evidence and in which they receive immunity therefor in a grand jury proceeding are prescribed in section 190.40.”
      CPL 50.30 reads: “In any criminal proceeding, other than a grand jury proceeding, the court is a competent authority to confer immunity in accordance with the provisions of section 50.20, but only when expressly requested by the district attorney to do so.”

      . The fact, as asserted by the prosecutor, that the answer — “I’m sorry. I didn’t sell this cocaine. I sold cocaine earlier.” — to a previous question may have been unresponsive is immaterial inasmuch as the claim of immunity is here predicated on the answers to the two subsequent questions.

       “In a 1953 report, the New York State Crime Commission adopted the Law Revision Commission’s view by recommending ‘that legislation be adopted to accomplish the following:
      ‘A. Require that before immunity may be obtained: (1) the witness must in good faith claim his privilege against self-incrimination; (2) he must be directed by competent authority to testify, notwithstanding his claim of privilege; and (3) he must testify pursuant to such direction.’ ” (Matter of O’Neil v Kasler, 53 AD2d 310, 318.)


author: Meyer, J. Jones and Simons JJ.

text:
    In the Matter of Dennis L. Enright, Respondent, v Andrew F. Siedlecki, as Judge of the County Court of Tioga County, et al., Appellants. In the Matter of Arthur W. Huntzinger, Respondent, v Andrew F. Siedlecki, as Judge of the County Court of Tioga County, et al., Appellants.
    Submitted April 28, 1983;
    decided June 9, 1983

      POINTS OF COUNSEL

      Robert J. Simpson, District Attorney, for appellants.
    I. Given the manifest necessity, the interest of public justice could not otherwise be served absent a mistrial declaration. (People v Palermo, 32 NY2d 222; La Rocca v Lane, 47 AD2d 243, 37 NY2d 575, 424 US 968; Radosh v Shipstad, 20 NY2d 504; Matter of Napoli v Supreme Ct. of State of N. Y., 40 AD2d 159, 33 NY2d 980; People v Michael, 48 NY2d 1; Matter of Pastrana v Baker, 77 AD2d 653; People v Sorenson, 80 AD2d 878; United States v Goldstein, 479 F2d 1061, 414 US 873; People v McQueen, 58 AD2d 675.) II. A second trial would not subject respondent to prior jeopardy. (Hall v Potoker, 71 AD2d 995, 49 NY2d 501.)

      Robert L. Miller and Gerald A. Keene for Dennis L. Enright, respondent.
    The Trial Judge improperly declared a mistrial over defendant’s objection. (People v Michael, 48 NY2d 1; Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114.)

      Robert L. Miller and Gerald A. Keen for Arthur William Huntzinger, respondent.
    In light of the prohibition against double jeopardy, the lower court erred in granting a mistrial. (Bartkus v Illinois, 359 US 121, 360 US 907; Green v United States, 355 US 184; Benton v Maryland, 395 US 784; United States v Perez, 9 Wheat [22 US] 579; Matter of

      Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114; Matter of Snee v County Ct. of County of Cayuga, 31 AD2d 303; Matter of Art v City Ct. of City of Rochester, 35 AD2d 1062; Matter of Fonseca v Judges of Family Ct. of County of Kings, 59 Misc 2d 492; People ex rel. Stabile v Warden of City Prison of City of N. Y., 202 NY 138; People v Goldfarb, 152 App Div 870, 213 NY 664.)
   OPINION OF THE COURT

Meyer, J.

Manifest necessity for the declaration of a mistrial in a criminal case exists when after opening statements referring to a confession have been made, the prosecutor discovers a Miranda warnings statement indicating that defendant had requested counsel and the confession is, after a hearing, suppressed. Manifest necessity likewise exists when an essential defense witness becomes unavailable; the Trial Judge is not limited by defendant’s attorney’s request for a continuance rather than a mistrial and in passing upon the continuance request may take into account an appeal to sympathy by defense counsel during voir dire even though the Trial Judge denied the prosecution’s motion for mistrial made during voir dire. In each case, therefore, the judgment of the Appellate Division should be reversed and defendant’s article 78 petition seeking to prohibit retrial should be dismissed.

I

Petitioner Enright was indicted for robbery in the second degree. Following a lengthy Huntley hearing the suppression court denied his motion to suppress a confession given to the police. At the ensuing trial the confession was referred to in the opening statements of both the prosecutor and defense counsel. The next day, however, the trial prosecutor discovered a Miranda rights warning statement indicating that Enright had requested counsel before his statement was taken. The hearing was then reopened and, at its conclusion the statement was suppressed.

During discussion concerning the necessity for a mistrial, petitioner’s counsel agreed with the prosecutor that reference to the confession during opening statements constituted a major problem and expressed doubt that the jury could be “sanitized” with respect to defendant’s inculpatory statement, but refused to consent to a mistrial. The prosecutor, stating that he felt “penalized in the sense that I now have to fly a flag with different colors and I don’t know that anything the court says can dispel the doubt”, moved for a mistrial. The Trial Judge, noting that he had admonished the jury to listen carefully to the opening statements and concluding, that “there is no way we can proceed to a trial with this panel at this time and be sure that this defendant has a fair trial” granted the mistrial, stating that he was doing so on the prosecutor’s motion and on the court’s own motion.

Petitioner then commenced the present proceeding to prohibit the scheduled retrial. The Appellate Division held any prejudice to the People arising from the unavailability of the confession to be of their own making and no basis for mistrial, and that, no inquiry having been made by the Trial Judge into the jury’s ability to render a fair verdict or curative instruction given, the Trial Judge had abused his discretion in granting a mistrial without defendant’s consent. The appeal is before us by our leave (57 NY2d 608).

Petitioner Huntzinger was indicted for sodomy in the second degree based on an alleged 1981 incident with a minor girl. Petitioner, then 72 years old, appeared at trial in a wheelchair, accompanied by a female attendant. In the course of voir dire, defense counsel asked a prospective juror whether he would consider defendant’s age and physical limitations, including the fact that he had undergone three major operations, as well as his status as a widower after 44 years of marriage. The prosecutor’s objection was sustained but the court denied his request for a mistrial and stated that curative instructions would obviate any undue prejudice.

After the jury was sworn, however, the court declared a mistrial, over defendant’s objection, for three reasons. First, the Trial Judge ruled that the People were prejudiced by petitioner’s sympathetic appearance in a wheelchair when, in fact, the necessity for its use was not properly proven to the court’s satisfaction. Second, the Trial Judge reversed himself on the jury’s ability to disregard the improper remarks made during voir dire; he found that “despite my instructions to [this] jury, it’s impossible to unring a bell.” Finally, the Trial Judge based his decision, in part, on the unavailability of Chief Jackson of the Waverly Police. Defense counsel characterized Jackson as “absolutely crucial” to the defense case because he had signed the felony complaint which asserted that the crime occurred in July or August of 1982, but the indictment alleged that the crime occurred in July or August of 1980. Chief Jackson was unavailable for trial, however, because he was recuperating from extensive surgery. Although defense counsel requested a continuance, the court rejected that alternative after counsel was unable to even estimate the length of the witness’ unavailability.

A second trial having been scheduled, petitioner commenced this article 78 proceeding seeking to prohibit retrial. The same panel that decided the Enright proceeding held that the Trial Judge abused his discretion in granting a mistrial. It noted without comment that the granting of a mistrial was based in part on the unavailability of Jackson and ruled that the misconduct of defense counsel, if it be deemed misconduct, was not so egregious as to have irrevocably tainted the impartiality and objectivity of the jury after receipt of appropriate curative instructions. Huntzinger’s appeal is also before us by our leave (57 NY2d 608).

II

The rules governing the effect of declaring a mistrial in a criminal case without the consent or over the objection of the defendant are well settled. When such a mistrial is declared the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution and in section 6 of article I of the New York Constitution precludes retrial for the same offense unless “there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated” (United States v Perez, 9 Wheat [22 US] 579, 580; People v Michael, 48 NY2d 1, 9). This principle is at the root of CPL 280.10, which requires the declaration of a mistrial upon motion of the People when there has been “gross misconduct by the defendant or some person acting on his behalf” (subd 2) or on motion of either party or on the court’s own motion “when it is physically impossible to proceed with the trial in conformity with law” (subd 3). Under either the constitutional or statutory provisions “ ‘a defendant’s valued right to have his trial completed by a particular tribunal must in some circumstances be subordinated to the public’s interest in fair trials designed to end in just judgments’” (United States v Jorn, 400 US 470, 480, quoting from Wade v Hunter, 336 US 684, 689; accord Hall v Potoker, 49 NY2d 501, 505), but the Trial Judge must exercise sound discretion to assure that, taking all relevant circumstances into account, there was manifest necessity for the declaration of a mistrial without defendant’s consent (United States v Jorn, supra, at p 487).

A corollary of the discretion granted Trial Judges is the principle that a reviewing court will be hesitant to interfere with the discretion exercised out of deference to the fact that the Trial Judge “is in the best position to determine whether a mistrial is in fact necessary in a particular case” (People v Michael, 48 NY2d 1, 9, supra; Matter of Napoli v Supreme Ct. of State of N. Y., 40 AD2d 159, affd on opn below 33 NY2d 980, cert den 417 US 947). The Trial Judge’s discretion is not without limits, however. The reasons underlying the grant of a mistrial may not be illusory; rather, in order fully to protect the defendant’s right to trial by a particular tribunal they must be necessitous, actual and substantial (Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114, 119). Thus, if the Judge acts so abruptly as not to permit consideration of the alternatives (United States v Jorn, 400 US 470, 487, supra) or otherwise acts irrationally or irresponsibly (Arizona v Washington, 434 US 497, 514) or solely for convenience of the court and jury (People v Michael, 48 NY2d 1, 9, supra) or other similar abuse of discretion (People v Ortiz, 54 NY2d 288, 292), retrial will be barred.

The Trial Judge’s grant of a mistrial will be subjected to strict scrutiny when the basis for doing so is the unavailability of critical prosecution evidence, for the People are not entitled to a mistrial merely to gain “ ‘ “a more favorable opportunity to convict” ’ ” (Hall v Potoker, 49 NY2d 501, 506, supra). On the other hand, “the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by * * * improper comment” will be accorded “the highest degree of respect” (Arizona v Washington, 434 US 497, 511, supra). As we noted in People v Michael (48 NY2d, at p 10). “The decision whether a mistrial is necessary because of juror bias [is] often based on subtle indications of discontent, not always apparent on the cold face of the record presented to an appellate court. Hence * * * a Trial Judge is entrusted with considerable discretion in making such determinations, for it is the Trial Judge, better than any other, who can detect the ambience of partiality.”

IH

Though well settled, the rules relating to manifest necessity are not always easy of application. Viewing each matter in the context of all of the circumstances confronting the Trial Judge, we conclude that in neither case was there an abuse of discretion.

In finding an abuse of discretion in Matter of Enright, the Appellate Division placed undue emphasis on the prosecution’s error which resulted in defendant’s confession being put before the jury and on the Trial Judge’s failure to question the jurors concerning their ability to act impartially. Defendant does not suggest that the oversight which resulted in the confession reaching the jury was other than inadvertent. True, the absence of guile is not necessarily determinative. But the question for decision is not whether it would have been an abuse of discretion to continue the trial, but whether it was an abuse of discretion not to allow it to continue. The jury’s awareness that defendant had confessed prejudiced both sides; the People, because the promised confession had been suppressed; the defendant, because jurors unsophisticated in right to counsel law may not, despite the best of intentions, be able to disregard a confession which they are told cannot be considered, not because it v/as untrue or was coerced, but because defendant did not have legal advice before making it. In determining whether a trial should be permitted to continue, a Trial Judge need not necessarily explore every ramification by juror questioning before declaring a mistrial (cf. People v Tinsley, 58 NY2d 990). Enright’s attorney, asked for his feeling as to a mistrial, responded “I don’t see how the jury could be sanitized” and, the prosecutor having stated that the inability to mention during trial the statement the jurors had been told about on voir dire “is a big problem right now,” expressed his agreement. He nevertheless declined, as was his right, to consent to the prosecutor’s motion for a mistrial. The Trial Judge’s ruling on the motion, made as its language shows to protect the defendant’s right to a fair trial and then joined in by the court of its own motion because “I don’t see how he could get a fair trial with all this,” was not predicated on prejudice to the People. Moreover, defendant’s attorney’s concession that the jury could not be “sanitized” and the difficulty inherent in jurors disregarding a confession of which they have been told, made unnecessary the questioning of the jurors by the Trial Judge to determine their “ambience of partiality,” if indeed questioning would be helpful to that end. Nor in view of the public interest “ ‘in fair trials designed to end in just judgments’ ” (Hall v Potoker, supra, at p 505; United States v Jorn, 400 US 470, 480, supra), inherent in the due process provisions of the Federal and State Constitutions, did the fact that the provisions of CPL 280.10 did not exactly fit the situation limit the Trial Judge’s authority to declare a mistrial on the basis of prejudice to the defendant. The Trial Judge was justified in concluding that there was no acceptable alternative to a mistrial (People v Tinsley, supra; Hall v Potoker, supra).

Similarly, the Appellate Division erred in granting the Huntzinger petition because when all relevant circumstances are considered the Trial Judge’s decision cannot be characterized as either irrational or an abuse of discretion. The Appellate Division based its decision solely on the ground that the Judge’s curative instructions adequately safeguarded the jury’s impartiality vis-a-vis petitioner’s appearance in a wheelchair and his attorney’s statements on voir dire. It noted in a footnote but gave no effect to the fact that the unavailability of Chief Jackson, characterized by defendant’s attorney as an “absolutely crucial” defense witness without whom he could not proceed, was also a predicate for the granting of the mistrial. Defendant’s attorney, it is true, only requested a continuance in order to produce Jackson, but when asked how long Jackson would be incapacitated could only respond “I have no idea. I don’t know anything about his medical condition.” The Trial Judge was not obligated to grant defendant an indefinite continuance for the production of Jackson. The unavailability of a crucial witness constitutes manifest necessity for a mistrial (Hall v Potoker, supra; People v Kelly, 9 NY2d 697; People v Sorenson, 80 AD2d 878). Considering defendant’s questionable appearance before the jury in a wheelchair and his counsel’s improper remarks during voir dire together with defendant’s attorney’s insistence that Jackson was a crucial witness and his inability to indicate when Jackson would be available, we conclude that there was no abuse of discretion in the declaration of a mistrial, even though there may have been had the mistrial been declared on the basis of the first two factors alone.

For the foregoing reasons, in each case the judgment of the Appellate Division should be reversed, without costs, and the petition dismissed.

Jones and Simons JJ.

(dissenting). Inasmuch as substantial issues under the Federal Constitution are presented and in our view the disposition of the majority denies defendant in each case his constitutional right not to be twice put in jeopardy for the same offense (US Const, 5th Amdt) we dissent, and for the reasons stated in the respective opinions at the Appellate Division. The majority’s reliance to find manifest necessity on its view of the disadvantages to defendants of proceeding with trial in these cases is wholly impermissible; representation of the interests of defendants and determination of what procedures are best calculated to protect and advance those interests is entrusted to defense counsel. In each of these cases counsel for defendant concluded in the circumstances presented that a mistrial would not be in defendant’s best interest and categorically opposed declaration of a mistrial. The trial court denied each defendant his “valued right to have his trial completed by a particular tribunal” (Wade v Hunter, 336 US 684, 689; cited with approval in United States v Jorn, 400 US 470, 480, 486; Hall v Potoker, 49 NY2d 501, 505). The appellate court has no right to second-guess defense counsel and thus to deprive defendant of his constitutional protection against double jeopardy.

Chief Judge Cooke and Judges Jasen and Wachtler concur with Judge Meyer; Judges Jones and Simons dissent and vote to affirm in a memorandum.

In each case: Judgment reversed, etc.

      . Prohibition is, of course, available to bar a retrial which would violate double jeopardy (Hall v Potoker, 49 NY2d 501, 505, n 1).

      . Thus, in People v Jones (47 NY2d 528, 534) we said of a confession that “nothing could be more conclusive evidence of the defendant’s guilt” and in Matter of Westchester

        Rockland Newspapers v Leggett (48 NY2d 430, 440) spoke of "a possibly inadmissible confession or other legal bombshell.”

      . With respect to the dissent it is only necessary to note that Huntzinger’s attorney having characterized the missing witness as “absolutely crucial,” the Trial Judge second-guessed him only to the extent of declaring a mistrial rather than granting a continuance, which was within his discretion, and that Enright’s attorney’s agreement that the jury could not be “sanitized” was enough to authorize declaration of a mistrial without his consent, for as the Supreme Court said in Gori v United States (367 US 364, 368): “Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.”


author: Simons, J. Wachtler, J.

text:
    Park Knoll Associates, Appellant, v Aphrodite Schmidt, Respondent.
    Argued April 25, 1983;
    decided June 9, 1983

      POINTS OF COUNSEL

      Charles G. Mills and Philip C. Kilian for appellant.
    I. Communications made to induce others to file official complaints are not absolutely privileged. (Pecue v West, 233 NY 316; Toker v Poliak, 44 NY2d 211; Uni-Service Risk Mgt. v New York State Assn. of School Business Officials, 62 AD2d 1093; Kenny v Cleary, 47 AD2d 531; Stukuls v State of New York, 42 NY2d 272; Andrews v Gardiner, 224 NY 440; Longo v Tauriello, 201 Misc 35; Petty v General Acc. Fire & Life Assur. Corp., 365 F2d 419; Wiener v Weintraub, 22 NY2d 330.) II. The privilege claimed here cannot be determined on a motion to dismiss for failure to state a cause of action. (Stukuls v State of New York, 42 NY2d 272; Morone v Morone, 50 NY2d 481; Rovello v Orofino Realty Co., 40 NY2d 633; Theodore v News Syndicate Co., 270 NY 603; Guggenheimer v Ginzburg, 43 NY2d 268.) III. Special Term properly directed pretrial disclosure. (Coffey v Orbachs, Inc., 22 AD2d 317; Fekeith v New York City Tr. Auth., 65 Misc 2d 314.)

      Joseph R. Miaño for respondent.
    I. “Tenant’s statements) of complaint(s)”, containing statements alleged by appellant landlord to be libelous and filed with the Division of Housing and Community Renewal pursuant to its regulations are absolutely privileged. (Pecue v West, 233 NY 316; Roberts v Pratt, 174 Misc 585; Cheatum v Wehle, 5 NY2d 585; Gilbert v The People, 1 Denio 41; Garr v Selden, 4 NY 91; Andrews v Gardiner, 224 NY 440; Julien J.

      Studley, Inc. v Lefrak, 50 AD2d 162; Lipton v Friedman, 2 Misc 2d 165; Kitchner v State of New York, 82 Misc 2d 858; Weiner v Weintraub, 22 NY2d 330.) II. Does respondent, who as president of her tenants’ association, acted as advisor-scrivener to tenants in the preparation and filing of their “tenant’s statement(s) of complaint(s)” with the Division of Housing and Community Renewal, share the absolute privilege of those tenants with respect to those communications, alleged by appellant to be libelous? (Gilbert v The People, 1 Denio 41.) III. The court below properly dismissed appellant’s complaint for failure to state a cause of action. (Rovello v Orofino Realty Co., 40 NY2d 633; Davis v Williams, 59 AD2d 660, 44 NY2d 882.)
   OPINION OF THE COURT

Simons, J.

Plaintiff landlord alleges in its complaint that defendant, president of the Park Knoll Tenants’ Association, libeled it in its trade and business. The charges are based upon statements contained in 10 tenant applications prepared with the aid of defendant and filed with the State Division of Housing and Community Renewal in which the tenants seek refunds of rent overcharges and treble damages. The Appellate Division dismissed plaintiff’s complaint, finding the statements were absolutely privileged because made in the course of a quasi-judicial proceeding. Because of the dismissal, it did not address plaintiff’s motion for discovery or the remainder of defendant’s cross motion in which she sought a protective order.

There should be a reversal. A leader who assists group members in registering official complaints does not enjoy an absolute privilege from liability for defamation. The social value of such leaders is palpable but they are not within the limited group of persons who because of their official participation in the processes of government are granted immunity (see 1 Harper and James, Torts, § 5.21, p 421). Specifically, defendant was not an attorney, party or witness in a judicial or quasi-judicial proceeding and she may not acquire immunity for defamation by joining in the tenants’ applications as a scrivener or advisor for them.

Plaintiff alleges in its complaint that it is a limited partnership owning an apartment complex in East White Plains, New York; that defendant is a tenant in the complex; and, that she has embarked on a course of action designed to libel plaintiff in its trade and business by falsely accusing it of violating the laws of the State of New York and the regulations of the Division of Housing and Community Renewal (as to libel of a partnership see, generally, Restatement, Torts 2d, §§561, 562; 1 Harper and James, Torts, § 5.3, p 360). In 10 separate causes of action it alleges the publication of defamatory statements which defendant made to various tenants and which the tenants in turn made to the Division of Housing in their written applications for relief. Annexed to the complaint in support of each cause of action, and made a part of it for purposes of this motion (see 805 Third Ave. Co. v M. W. Realty Assoc., 58 NY2d 447, 451), are the 10 tenant applications, each executed by a different tenant and stamped “filed” with the division. The applications may be interpreted to allege a variety of legal and moral wrongs, many cognizable by the Division of Housing, others cognizable by the criminal courts of the State. Defendant does not contest plaintiff’s assertion that they contain defamatory matter. Seven applications contain the statement that they were prepared by defendant and they are signed by her as president of the tenants’ association. The other three state in the body of the application that they are submitted “with the assistance and preparation” of Aphrodite Schmidt or of the president of the tenants’ association. Plaintiff contends that defendant’s statements are not absolutely privileged and that she is answerable for them.

A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable (see Cheatum v Wehle, 5 NY2d 585; Andrews v Gardiner, 224 NY 440). Because the perceived social benefit in encouraging free speech or the discharge of governmental responsibility sometimes outweighs the individual’s underlying right to a good reputation, the individual’s right may have to yield to a privilege granted the speaker barring recovery of damages for the defamatory statements. The privilege may be either absolute or conditional' depending on the occasion and the position or status of the speaker. The difference is in the degree of protection afforded the speaker. If the privilege is absolute, it confers immunity from liability regardless of motive. If it is conditional or qualified, it can be lost by plaintiff’s proof that defendant acted out of malice (see, generally, Prosser, Torts [4th ed], §§114, 115; Restatement, Torts 2d, § 583 et seq.; 1 Harper and James, Torts, §§ 5.25, 5.26).

Absolute privilege is based upon the personal position or status of the speaker and is limited to the speaker’s official participation in the processes of government (Toker v Pollak, 44 NY2d 211, 219; Andrews v Gardiner, 224 NY 440, 446-447, supra; Prosser, Torts [4th ed], § 114; Restatement, Torts 2d, title B, Introductory Note to § 585 et seq., pp 242-244; 1 Harper and James, Torts, § 5.21, p 421). The public interest requires that such statements be absolutely privileged so that those discharging a public function may speak freely in doing so, insulated from harassment and fear of financial hazard (see Toker v Pollak, 44 NY2d 211, 219, supra; Stukuls v State of New York, 42 NY2d 272, 278). In judicial proceedings the protected participants include the Judge, the jurors, the attorneys, the parties and the witnesses (see Restatement, Torts 2d, §§ 585-589; 2 NY PJI, pp 728-729, 1982 Supp, pp 66-68). They are granted this protection for the benefit of the public, to promote the administration of justice, and only incidentally for the protection of the participants. Thus, a Judge has immunity if he is performing a judicial act but not otherwise (see Murray v Brancato, 290 NY 52 [no immunity for defamation contained in unofficial publication of an opinion]); a lawyer has immunity for defamatory words spoken in a judicial proceeding but not for words spoken while representing a client in a nonjudicial proceeding (see Youmans v Smith, 153 NY 214; Simon v Stim, 11 Misc 2d 653, affd 10 AD2d 647 [pretrial statements]; cf. Andrews v Gardiner, 224 NY 440, supra [a pardon application]); a witness is immune from suit for defamatory remarks pertinent to a judicial proceeding (Martirano v Frost, 25 NY2d 505; People ex rel. Bensky v Warden of City Prison, 258 NY 55), but not for those made before the proceeding commences (Uni-Service Risk Mgt. v New York State Assn. of School Business Officials, 62 AD2d 1093; Kenny v Cleary, 47 AD2d 531). The immunity does not attach solely because the speaker is a Judge, attorney, party or a witness, but because the statements are, in the words of Lord Mansfield, “spoken in office” (R. v Skinner, Lofft, p 55, quoted in Andrews v Gardiner, 224 NY 440, 446, supra).

The Appellate Division found the tenants’ proceedings before the Division of Housing and Community Renewal were quasi-judicial and thus that the tenants were immune from suit for defamatory information contained in their applications to the division (see Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, 164, affd insofar as appealed from 41 NY2d 881). It extended the tenants’ immunity to defendant. Assuming that the tenants enjoyed immunity because the proceedings before the division were quasi-judicial, defendant was not a participant in those proceedings. She was neither attorney, party, nor witness in them. Her role was solely that of a volunteer acting as a tenants’ representative and attempting to cover herself in by executing the applications in an advisory capacity. She had no “office” in the judicial proceedings and therefore she was not entitled to the immunity received by those who did.

Nor does the attendant social benefit require that immunity be granted to those in her position. As a matter of policy, the courts confine absolute privilege to a very few situations (see Stukuls v State of New York, 42 NY2d 272, 278, supra; Andrews v Gardiner, 224 NY 440, 448, supra; Prosser, Torts [4th ed], § 114, p 777). Were we to extend it to defendant here, there would be no apparent reason to deny immunity to the leader of any cause who encourages litigation no matter how worthwhile or frivolous the purpose of the movement. Defendant’s activities are protected and the public interest fully served by a qualified or conditional privilege which is recognized for matters of intermediate social value, matters which are important but less so than those going to the functions of government. She may plead the privilege as one which she enjoys because her communications were made “ ‘in the discharge of some public or private duty, legal or moral, or in the conduct of [her] own affairs, in a matter where [her] interest is concerned’ ” (Toker v Pollak, supra, p 219, quoting Lovell Co. v Houghton, 116 NY 520, 526; Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56, 60; Byam v Collins, 111 NY 143, 150; Prosser, Torts [4th ed], § 115; 1 Harper and James, Torts, § 5.25, pp 439-440). It appearing that defendant can establish the interest necessary to warrant a qualified privilege here, the burden rests upon plaintiff, if it is to sustain its cause of action, to prove that she acted out of malice. The complaint here contains sufficient allegations of malice to withstand the motion to dismiss.

Accordingly, the order should be reversed, the motion to dismiss the complaint denied, and the matter remitted to the Appellate Division for consideration of plaintiff’s discovery motion and the cross motion for a protective order.

Wachtler, J.

(dissenting). The critical question is not whether the defendant is entitled to an absolute privilege for statements she makes as a leader of an activist tenants organization, but whether the privilege should apply when she represents individual tenants in proceedings before the State Commission of Housing and Community Renewal, as she is permitted to do pursuant to the procedures adopted by the agency.

As the Appellate Division noted, these are often minor cases involving persons who cannot afford counsel and are unable to represent themselves because of age, disability, language barriers, or unfamiliarity with their rights. If there are compelling reasons for granting an absolute privilege to litigants and attorneys appearing before this body, the privilege should apply as well to those volunteer representatives whom the tenant has chosen to speak on his or her behalf. The privilege should not be applied in such a way as to only foster the rights of those who are capable of representing themselves or financially able to retain counsel.

For these and the other reasons stated in the opinion by Justice Seymour Boyers at the Appellate Division, the order of the Appellate Division should be affirmed.

Judges Jasen, Jones and Meyer concur with Judge Simons; Judge Wachtler dissents and votes to affirm in a separate opinion in which Chief Judge Cooke concurs.

Order reversed, with costs, motion to dismiss the complaint denied and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.


author: Jasen, J.

text:
    William E. Dabbs, Respondent, v State of New York, Appellant.
    (Claim No. 62230.)
    Argued April 27, 1983;
    decided June 14, 1983

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Michael S. Buskus and Peter H. Schiff oí counsel), for appellant.
    I. The arrest was privileged because the warrant was issued by a court of competent jurisdiction. (Barr v County of Albany, 50 NY2d 247; Parvi v City of Kingston, 41 NY2d 553; Snead v Bonnoil, 166 NY 325; Warner v State of New York, 297 NY 395; Douglas v State of New York, 269 App Div 521, 296 NY 530; Nastasi v State of New York, 275 App Div 524; Burns v Erben, 40 NY 463; Fischer v Langbein, 103 NY 84; Vittorio v St. Regis Paper Co., 239 NY 148; Marks v Townsend, 97 NY 590.) II. The description on the warrant was sufficient. (Gurnsey & Knight v Lovell, 9 Wend 319; Bozeman v City of Buffalo, 62 Misc 2d 967, 34 AD2d 892; Boose v City of Rochester, 71 AD2d 59; West v Cabell, 153 US 78; People ex rel. Sampson v Dunning, 113 App Div 35;
      People ex rel. Joseph v Jerome, 34 Misc 575; United States v Jarvis, 560 F2d 494, 435 US 934; United States v $1,058.00 in U. S. Currency, 210 F Supp 45, 323 F2d 211; Government of Virgin Is. v Gereau, 502 F2d 914, 420 US 909.) III. In any event, the court below employed the wrong legal standard in assessing damages. (Broughton v State of New York, 37 NY2d 451; Woodard v City of Albany, 81 AD2d 947; Williams v City of Buffalo, 72 AD2d 952; Oakley v City of Rochester, 71 AD2d 15.)

      Frederick M. Altman for respondent.
    I. Reasonable certainty, and not a mere general resemblance was the proper standard to apply. This warrant did not meet the test. II. The claimant’s arrest was not privileged since it was made pursuant to a warrant which was invalid on its face. (Boose v City of Rochester, 71 AD2d 59; Bozeman v City of Buffalo, 62 Misc 2d 967; Miller v Foley, 28 Barb 630; Maracle v State of New York, 50 Misc 2d 348; Ross v Village of Wappingers Falls, 62 AD2d 892; Houghtaling v State of New York, 11 Misc 2d 1049; Williams v State of New York, 16 Misc 2d 109; Harty v State of New York, 29 AD2d 243.) III. There was insufficient probable cause to arrest claimant under a warrantless arrest. (People v Ward, 32 Misc 2d 843; United States v Miles, 413 F2d 34; Broughton v State of New York, 37 NY2d 451; People v Coffey, 12 NY2d 443.) IV. The damages awarded were not excessive. (Mudge v State of New York, 271 App Div 1039; Coleman v Southwick, 9 Johns 45; Sandor v Katz, 27 AD2d 766.)
   OPINION OF THE COURT

Jasen, J.

In this action for false arrest and imprisonment against the State, we are asked to review whether the arrest of the claimant was privileged and nonactionable. In the event the arrest was not privileged, a further question is presented as to the standard of assessing damages.

On March 30, 1978, State University of New York at Albany (SUNY/Albany) campus security officers, accompanied by Albany city police, arrested claimant pursuant to a John Doe warrant issued by Albany County Court. The arrest was for a rape committed by two men on December 13, 1977, at the SUNY/Albany campus.

After an investigation of the rape by the campus security police and a positive identification of one Louis Rios by the victim as one of the perpetrators, on January 5, 1978 an Albany County Grand Jury indicted Louis Rios and “John Doe” as the other perpetrator. The same day, Officer O’Connor of the campus security police received a “John Doe” arrest warrant which identified the second perpetrator as “Black Male, 18 years, 5'8", 160 lbs., short Afro Hairstyle, Med. black-tone skin, poor complex. Glasses (Plastic Frame off-yellow color)”.

Thereafter, Officer O’Connor continued his investigation over a period of several months in which various individuals were considered and rejected as suspects. On March 10, 1978, after viewing a photo array, the victim selected claimant’s photo out of an array of seven photos as being a “strong possibility” as the second rapist.

After learning claimant’s place of residence on March 24, 1978, claimant was arrested on the morning of March 30, 1978, and immediately booked and processed at the SU-NY/Albany Department of Public Safety, and was then promptly taken to the Albany County Court where he was arraigned on the charge of first degree rape. The arrest, booking and arraignment all occurred within a matter of four hours. Subsequent to claimant’s arraignment, he was detained for a period of four days at the Albany County Jail prior to his release on bail. On June 12, 1978, the indictment against claimant was dismissed for insufficient evidence to prosecute. Claimant, thereafter, commenced this action alleging false arrest and imprisonment, malicious prosecution and libel and slander. The Court of Claims awarded the claimant $15,000 for false arrest and imprisonment and dismissed his causes of action sounding in malicious prosecution and libel and slander. The Appellate Division affirmed, stating, inter alia, that the description contained in the John Doe warrant was sufficiently vague and indistinct as to match a large number of persons; that, at the time of the arrest, the police knew the name of the person to be arrested; that hence, the 1978 John Doe warrant was invalid on its face, and arrest and imprisonment pursuant to that warrant was unlawful.

The State on this appeal argues that the arrest was privileged because the warrant was issued by a court of competent jurisdiction; that the description on the John Doe warrant was sufficient and that, in any event, the courts below employed the wrong legal standard in assessing damages.

The issuance of a John Doe warrant after the Albany County Grand Jury handed down an indictment against Louis Rios and a second person, whose name was unknown, was permissible, assuming that a description was provided by which that person could be identified with reasonable certainty. (CPL 120.10, subd 2.) However, approximately 20 days prior to the execution of the John Doe warrant, the police knew that the person described in the John Doe warrant was named William Dabbs, the claimant herein. Nevertheless, the John Doe warrant was never amended or reissued by the court to include “the name of the defendant to be arrested” prior to his arrest on March 30,1978, even though there was ample time to do so and no emergency, such as claimant’s suspected flight to avoid prosecution, existed which would have given the police good reason to act immediately. Under these circumstances, the failure to include the indicted person’s name on the warrant when it became known was violative of CPL 120.10 (subd 2, par [d]) and, therefore, rendered the warrant invalid on its face. Once the identity of the defendant to be arrested is known by the police, in the absence of exigent circumstances, the need for a John Doe warrant no longer exists, and the requirement of the statute that a valid warrant of arrest “must state or contain * * * (d) the name of the defendant to be arrested” must be complied with. Because of our holding that the warrant was facially invalid for failing to include claimant’s name on the arrest warrant after it became known, we express no view as to the sufficiency of the description contained on the warrant by which “John Doe” could be “identified with reasonable certainty” to satisfy the requirements of CPL 120.10 (subd 2).

The arrest of claimant not having been made pursuant to a facially valid warrant made it incumbent upon the State to prove that the arrest was otherwise privileged. To do so, the State was required to show that the arrest was based upon probable cause. (Broughton v State of New York, 37 NY2d 451, at p 458; Snead v Bonnoil, 166 NY 325, 328.)

The record, however, supports the affirmed finding that the police lacked probable cause to arrest the claimant and the issue is, therefore, beyond our power to review. (People v Harrison, 57 NY2d 470.) Accordingly, the determination below, adjudging the State liable for false arrest and imprisonment, was proper.

It was error, however, for the trial court to base its assessment of damages in part upon claimant’s four-day period of incarceration subsequent to his arraignment. As the State correctly points out, damages for false imprisonment are not recoverable after arraignment. (Broughton v State of New York, supra, at p 459; Williams v City of Buffalo, 72 AD2d 952, app dsmd 49 NY2d 799.) Subsequent damages resulting from continued incarceration are attributable only to the tort of malicious prosecution, an action that was properly dismissed against the State. (Broughton v State of New York, supra; Woodard v City of Albany, 81 AD2d 947.) Here, claimant spent only a few hours in jail prior to his arraignment. While he may recover a sum which reasonably compensates him for the State’s wrongful act, including loss of earnings, injury to reputation and humiliation (see Guion v Associated Dry Goods Corp. [Lord & Taylor Div.], 56 AD2d 798, affd 43 NY2d 876; see, also, 22 NY Jur, False Imprisonment, § 60, pp 499-501), claimant cannot recover for injuries other than in consequence of his prearraignment detention.

Accordingly, the order of the Appellate Division should be modified by remitting the case to the Court of Claims for a redetermination of the amount of damages in accordance with this opinion and, as so modified, affirmed, with costs.

Chief Judge Cooke and Judges Jones Wachtler, Meyer and Simons concur.

Order modified, with costs to the State of New York, and case remitted to the Court of Claims for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

       CPL section 120.10 (subd 2) provides: “2. A warrant of arrest must be subscribed by the issuing judge and must state or contain (a) the name of the issuing court, and (b) the date of issuance of the warrant, and (c) the name or title of an offense charged in the underlying accusatory instrument, and (d) the name of the defendant to be arrested or, if such be unknown, any name or description by which he can be identified with reasonable certainty, and (e) the police officer or officers or peace officers appointed by the state university to whom the warrant is addressed, and (f) a direction that such officer arrest the defendant and bring him before the issuing court.”