text:
    The People of the State of New York, Respondent, v Theodore Pollenz, Appellant. The People of the State of New York, Respondent, v Edward W. Mugavero, Appellant.
    Argued March 24, 1986;
    decided May 6, 1986

      POINTS OF COUNSEL

      Paula Schwartz Frome and John Laurence Ease for appellant in the first above-entitled action.
    I. Mr. Pollenz was entitled to an appeal of his sentence as of right. (United States v Payden, 759 F2d 202; Roth v Michaelson, 55 NY2d 278; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; People v Ifill, 127 Misc 2d 678; People v Farrar, 52 NY2d 302; Sanders v Winship, 57 NY2d 391; People v Kates, 77 AD2d 417, 53 NY2d 591; Matter of Anderson v Board of Educ., 46 AD2d 360, 38 NY2d 897; Matter of Schultz Mgt. v Board of Stds. & Appeals, 103 AD2d 687, 64 NY2d 1057; National Superlease v Reliance Ins. Co., 126 Misc 2d 988.) II. CPL 450.10 (1), as amended, is unconstitutional. (People v Coleman, 30 NY2d 582; People v Zuckerman, 5 NY2d 401; People v Speiser, 277 NY 342; People v Gottfried, 94 AD2d 632; People v Palaguay, 216 App Div 508; People v Dinehart, 155 App Div 687; People v Thompson, 60 NY2d 513; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Matter of Schultz Mgt. v Board of Stds. & Appeals, 103 AD2d 687, 64 NY2d 1057; People v Montgomery, 24 NY2d 130.) III. The application of CPL 450.10 (1), as amended, to Mr. Pollenz is unconstitutional. (Duncan v Missouri, 152 US 377; Beazell v Ohio, 269 US 167; People v Conyers, 86 Misc 2d 754, 63 AD2d 634; People

      v Martinez, 82 Misc 2d 56; People v Montgomery, 24 NY2d 130; People v Coleman, 30 NY2d 582; People v Speiser, 277 NY 342.)

      Denis Dillon, District Attorney (Denise Parillo and Anthony J Gírese of counsel), for respondent in the first above-entitled action.
    I. Defendant did not have an appeal as of right on the sole ground that his sentence was harsh or excessive. (People v Pitts, 6 NY2d 288; People v Santos, 64 NY2d 702; People v Sommer, 33 NY2d 688; United States v Turkette, 452 US 576; Consumer Prod. Safety Commn. v GTE Sylvania, 447 US 102; People v Farrar, 52 NY2d 302; Santobello v New York, 404 US 257; People v Selikoff, 35 NY2d 227; United States ex rel. Williams v McMann, 436 F2d 103, 402 US 914.) II. CPL 450.10, as amended, is constitutional. (Matter of Mitchel v Cropsey, 177 App Div 663; Matter of Pye, 21 App Div 266; Lacks v Lacks, 41 NY2d 71; Fisher v Hepburn, 48 NY 41; People v Harris, 107 AD2d 761; Nuernberger v State of New York, 41 NY2d 111; Matter of Alphonso C., 38 NY2d 923; Matter of Santangello v People, 38 NY2d 536; People v Crimmins, 38 NY2d 407.) III. The application of CPL 450.10 (1) to the case at bar does not violate the constitutional prohibition against ex post facto laws. (Weaver v Graham, 450 US 24; Dobbert v Florida, 432 US 282; Beazell v Ohio, 269 US 167; Hopt v Utah, 110 US 574; People ex rel. Lonschein v Warden, 15 NY2d 663; People v Nival, 33 NY2d 391, 417 US 903; Thompson v Missouri, 171 US 380; People v Montgomery, 24 NY2d 130; Griffin v Illinois, 351 US 12; McKane v Durston, 153 US 684.)

      Jonathan E. Gradess, Charles F. O’Brien, Martin I. Rosenbaum and Edward H. Wassermann for New York State Defenders Association, amicus curiae in the first above-entitled action. CPL 450.10 as amended by the Laws of 1984 (ch 671) is unconstitutional.

      (People v Zuckerman, 5 NY2d 401; People v Speiser, 277 NY 342; People v Williams, 6 AD2d 900; People v Davies, 275 App Div 726; People v Spagnolia, 260 App Div 551; Matter of Association of Bar of City of N. Y, 222 App Div 580; People ex rel. Patrick v Frost, 133 App Div 179; People v McKane, 7 Misc 371; People v Pride, 3 NY2d 545; People v Montgomery, 24 NY2d 130.)

      Mitchell Gittin for appellant in the second above-entitled action.
    I. CPL 450.10 as amended by the Laws of 1984 (ch 671) is unconstitutional. (People v Zuckerman, 5 NY2d 401; People v Speiser, 277 NY 342; People v Williams, 6 AD2d 900; People

      v Davies, 275 App Div 726; People v Spagnolia, 260 App Div 551; Alexander v Bennett, 60 NY2d 204; Landers v Staten Is. R. R. Co., 53 NY2d 450; People ex rel. Mayor of City of N. Y. v Nichols, 79 NY 582; People v Dinehart, 155 App Div 687; Matter of Mitchel v Cropsey, 177 App Div 663.) II. NY Constitution, article I, § 6 guarantees appellant the right to intermediate appellate review of his sentence. (People v Farrar, 52 NY2d 302; People v Thompson, 60 NY2d 513; People v Coleman, 30 NY2d 582.)

      Patrick Henry, District Attorney (Patricia A. Murphy of counsel), for respondent in the second above-entitled action.
    I. CPL 450.10 as amended by the Laws of 1984 (ch 671) is constitutional. (People v Gersewitz, 294 NY 163, 326 US 687; People v Kearse, 58 Misc 2d 277; People v Roberts, 25 Misc 2d 321, 13 AD2d 719, 29 Misc 2d 621; People v Zivin, 17 Misc 2d 40; People v De Jesus, 54 NY2d 447; Matter of Santangello v People, 38 NY2d 536; People v Carmichael, 224 App Div 766, 249 NY 189; People v Zerillo, 200 NY 443; People v Taylor, 99 AD2d 820; People v Smith, 53 AD2d 1004.) II. Appellant has no constitutional right to intermediate appellate review of his sentence. (People v De Jesus, 54 NY2d 447; Matter of Santangello v People, 38 NY2d 536; People v Gersewitz, 294 NY 163, 326 US 687; People v Scarbrough, 66 NY2d 673; People v Loughlin, 66 NY2d 633; People v Pelchat, 62 NY2d 97; People v Ferrara, 99 AD2d 257; People v Lee, 58 NY2d 491; People v Corti, 88 AD2d 345.)
   OPINION OF THE COURT

Per Curiam.

CPL 450.10, as amended by the Laws of 1984 (ch 671), purports to disallow an appeal as of right to the Appellate Division where the sole issue raised is the excessiveness of a negotiated sentence imposed by a judgment rendered upon a guilty plea. We conclude that, in doing so, it imposes a limitation or condition on the jurisdiction of the Appellate Division of Supreme Court in contravention of NY Constitution, article VI, § 4 (k). In each of these two cases, therefore, the Appellate Division erred in relying upon the statute to dismiss the appeal taken as of right by the defendant.

Section 4 (k) of article VI prohibits legislative curtailment of Appellate Division jurisdiction over appeals from final judgments. On its effective date, the Appellate Division was obliged to entertain all appeals from final judgments in criminal cases, including those rendered upon guilty pleas imposing negotiated sentences (see, e.g., People v Thompson, 60 NY2d 513, 520; People v Zuckerman, 5 NY2d 401). That preexisting duty had been "constitutionalized” by the adoption of various provisions, beginning with article VI, § 2 (1894) which vested in the Appellate Divisions all the jurisdiction previously exercised by the General Term. The section was amended in 1925 by the addition of language vesting in the Appellate Division "such original or appellate jurisdiction as is now or may hereafter be prescribed by law”, which change has been interpreted as "influenced by a desire to preserve the jurisdiction of the Appellate Divisions as broadly as it was then constituted” (9 New York Constitutional Convention of 1938, Problems Relating to Judicial Administration and Organization, at 97 [Poletti ed]). The 1925 Amendment was regarded as prohibiting the Legislature from reducing the jurisdiction of the Appellate Division in any way (1957 Report of Temporary Commn on the Courts, 1957 McKinney’s Session Laws of NY, at 1576). The Temporary Commission had also recommended the creation of an appellate tribunal apart from Supreme Court, with its jurisdiction expressly delineated by constitutional provision. That recommendation was later withdrawn for fear that "the creation of a separate court with a new definition of appellate and original jurisdiction might unwittingly result in the loss of some jurisdiction” (Recommendations of Temporary Commn on the Courts, 1958 McKinney’s Session Laws of NY, at 1683). Finally, in 1958, the Judicial Conference recommended that the Appellate Divisions be continued as then constituted. As a result of the foregoing reports, at the 1959 legislative session several joint resolutions to amend article VI were proposed and debated. In adopting the joint resolution that was to become the present section 4 (k), the Legislature rejected, among others, one that would have conferred upon the Appellate Division only such "appellate jurisdiction as provided by law.” This history indicates that section 4 (k) was intended to render inapplicable the general rule that the right to appellate review is purely statutory.

The People attempt to avoid the consequence of the constitutional command by ascribing to the term jurisdiction a narrow definition: that it relates only to the power of a court to decide a case properly before it, not to the duty of a court to hear a particular case. Our precedents are to the contrary, however, indicating that "[¡jurisdiction is a word of elastic, diverse, and disparate meanings” (Lacks v Lacks, 41 NY2d 71, 74, rearg denied 41 NY2d 862; see also, Nuernberger v State of New York, 41 NY2d 111, 115, 117). Among those definitions is the duty of a court to consider an appeal brought before it as of right (see, e.g., People ex rel. Feeny v Board of Canvassers, 156 NY 36, 43 [Haight, J., concurring], rearg denied 156 NY 686; see also, Governor’s Memorandum of Approval, L 1985, ch 300, in 1985 McKinney’s Session Laws of NY, at 3292 [substitution of an appeal by permission for certain appeals formerly as of right to this court termed a "jurisdictional revision”]).

In People v Kevlon (247 NY 192, rearg denied 247 NY 584), the People appealed to our court from a judgment of the Appellate Division reversing the defendant’s conviction. A recently enacted statute, Code of Criminal Procedure § 520, the constitutionality of which was not there being challenged, provided with respect to such appeals to our court that a certificate of a Justice of the Appellate Division or a Judge of our court was required, just as the statute here being challenged requires the permission of a Justice of the Appellate Division for an appeal to that court. In Kevlon, we concluded: "In the absence of compliance with the provisions of section 520 of the Code of Criminal Procedure, we have no jurisdiction to hear the appeal” (247 NY, at p 193). Similarly, in the case before us, the statutory abrogation of the unconditional right to appeal is jurisdictional.

The text of the controlling constitutional provision itself supports such a position. Fairly read, it permits the Legislature to expand the jurisdiction of the Appellate Division but not contract it, except with regard to appeals from nonfinal orders. In those cases, the Legislature is authorized to limit or condition Appellate Division jurisdiction, implying that it may not so limit or condition the taking and deciding of appeals in any other instance (see, Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208-209; Matter of Schultz Mgt. v Board of Stds. & Appeals, 103 AD2d 687, 689, affd 64 NY2d 1057). The statutory abrogation of the right to appeal, leaving only the right to seek leave of a single Justice, not even the court itself, to take an appeal, represents both a limitation and condition on the formerly existing right to appeal from a final judgment or sentence. In People v Pollenz, the People’s motion to dismiss the appeal should be denied. In each case, the order of the Appellate Division dismissing the defendant’s appeal to that court should be reversed, and the case should be remitted to the Appellate Division for determination of the appeal.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Hancock, Jr., concur in Per Curiam opinion; Judge Titone taking no part.

In each case: Order reversed and case remitted to the Appellate Division, Second Department, for determination of the appeal.

      . In pertinent part, the statute provides:
      "§450.10 Appeal by defendant to intermediate appellate court; in what cases authorized as of right.
      "An appeal to an intermediate appellate court may be taken as of right by the defendant from the following judgment, sentence and order of a criminal court:
      "1. A judgment other than one including a sentence of death, unless the appeal is based solely upon the ground that a sentence was harsh or excessive when such sentence was predicated upon entry of a plea of guilty and the sentence imposed did not exceed that which was agreed to by the defendant as a condition of the plea and set forth on the record or filed with the court as required by subdivision five of section 220.50 or subdivision four of section 340.20.”

        . That section provides: "k. The appellate divisions of the supreme court shall have all the jurisdiction possessed by them on the effective date of this article and such additional jurisdiction as may be prescribed by law, provided, however, that the right to appeal to the appellate divisions from a judgment or order which does not finally determine an action or special proceeding may be limited or conditioned by law.” The effective date of that provision was September 1, 1982 (see, NY Const, art VI, § 37).

      . Our disposition on this ground obviates the need to determine whether, as both defendants claim, they also have a due process right to Appellate Division review of their sentences under NY Constitution, article I, § 6. We also need not consider defendant Pollenz’s claim that CPL 450.10 (1) by its terms does not apply his situation.


source: Caselaw Access Project

author: Alexander, J.

license: Public Domain

text:
    Dena Friedman, Respondent, v State of New York, Appellant. Connie F. Cataldo, Appellant, v New York State Thruway Authority, Respondent. Ernest Muller et al., Appellants, v State of New York et al., Respondents.
    Argued February 10, 1986;
    decided May 1, 1986

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Michael S. Buskus, Robert Hermann and Peter H. Schiff of counsel), for appellant in the first above-entitled action.
    I. The standard of care by which governmental liability for highway design is measured is reasonable engineering practice at the time the highway was designed. (Schwartz v New York State Thruway Auth., 95 AD2d 928, 61 NY2d 955; Holscher v State of New York, 59 AD2d 224, 46 NY2d 792; Stuart-Bullock v State of New York, 38 AD2d 626, 33 NY2d 418; Hagen v State of New York, 53 AD2d 802; Kaufman v State of New York, 27 AD2d 587; Ruggiero v State of New York, 256 App Div 437.) II. Assuming, arguendo, there is ever an obligation to improve highway infrastructure, the decision of an administrative agency not to commit funds at once to a desirable capital project is not a basis for finding negligence by the State. (Garlinghouse v Jacobs, 29 NY 297; Wilson v Mayor of City of N. Y, 1 Denio 595; Mills v City of Brooklyn, 32 NY 489; Bottalico v State of New York, 59 NY2d 302; Tomassi v Town of Union, 46 NY2d 91; Stuart-Bullock v State of New York, 38 AD2d 626, 33 NY2d 418; Schwartz v New York State Thruway Auth., 95 AD2d 928, 61 NY2d 955; Kirisits v State of New York, 107 AD2d 156; O’Connor v City of New York, 58 NY2d 184; Weiner v Metropolitan Transp. Auth., 55 NY2d 175.)

      Stephen C. Glosser, Pamela Anagnos Liapakis and Frank V. Floriani for respondent in the first above-entitled action.
    I. Both the court below and the Court of Claims correctly found that the State was negligent in unreasonably delaying the replacement of the median divider where, as here, the record established that (i) the median was dangerous and concededly "inadequate” to prevent crossovers of traffic moving at 55 miles per hour; and (ii) the State had five years’ notice to repair a dangerous condition which concededly could have been repaired within 18 months and certainly within three to four years. (Alpert v 28 Williams St. Corp., 63 NY2d 557; Smirlock Realty Corp. v Title Guar. Co., 63 NY2d 955; Humphrey v State of New York, 60 NY2d 742; Matter of Marland v Ambach, 59 NY2d 711; Ferrer v Harris, 55 NY2d 285; Caprara v Chrysler Corp., 52 NY2d 114; Alexander v Eldred, 63 NY2d 460; Blum v Fresh Grown Preserve Corp., 292 NY 241; Bottalico v State of New York, 87 AD2d 807, 59 NY2d 302; Gutelle v City of New York, 55 NY2d 794.) II. Both the court below and the Court of Claims correctly rejected the State’s "fiscal impracticality” argument for a variety of reasons. (Puliatti v State of New York, 91 AD2d 1192, 59 NY2d 603; Tomassi v Town of Union, 46 NY2d 91; Hines v City of Lockport, 50 NY2d 236; Matter of Grossman v Rankin, 43 NY2d 493; Farmers’ Loan & Trust Co. v Siefke, 144 NY 354; Jones v Beame, 45 NY2d 402; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; Matter of New York State Inspection, Sec. & Law Enforcement Employees v Cuomo, 64 NY2d 233; Klostermann v Cuomo, 61 NY2d 525; Torres v Little Flower Children’s Servs., 64 NY2d 119.) III. Even assuming, arguendo, that the viaduct project was not a high priority, then the State is still liable since (i) any determination that the project was not a priority would lack a rational basis, and (ii) in any event, the repairs could have been effected either with the partial funds allocated or with a temporary barrier. (Weiss v Fote, 7 NY2d 579; Alexander v Eldred, 63 NY2d 460; Heffler v State of New York, 96 AD2d 926.)

      Thomas J. Leyden, Sr., and Patrick J. Leddy for appellant in the second above-entitled action.
    I. Limited immunity for highway planning decisions should be abolished and defendant-respondent should be held liable for the negligent nonperformance of its governmental function. (Bernardine v City of New York, 294 NY 361; Weiss v Fote, 7 NY2d 579; Urquhart v City of Ogdensburg, 91 NY 67; Canepa v State of New York, 306 NY 272; Eastman v State of New York, 278 App Div 1, 303 NY 691; Dalehite v United States, 346 US 15; Rayonier, Inc. v United States, 352 US 315; Indian Towing Co. v United States, 350 US 61; Motyka v City of Amsterdam, 15 NY2d 134; Woods v Lancet, 303 NY 349; Bing v Thunig, 2 NY2d 656.) II. The doctrine of limited immunity does not shield respondent from liability in this case. (Lopes v Rostad, 45 NY2d 617; Rindfleisch v State of New York, 27 NY2d 762; Warren v New

      York State Thruway Auth., 51 AD2d 679; Gutelle v City of New York, 55 NY2d 794; Eastman v State of New York, 303 NY 691; Stern v International Ry. Co., 220 NY 284; Seifert v City of Brooklyn, 101 NY 136; Kirisits v State of New York, 107 AD2d 156; Sanford v State of New York, 94 AD2d 857; Warren v New York State Thruway Auth., 51 AD2d 679, 38 NY2d 712; King v State of New York, 83 Misc 2d 748, 58 AD2d 934.) III. Respondent is liable for its failure to install barriers to correct known dangerous conditions since it owned and operated the toll bridge and acted in its proprietary capacity. (Miller v State of New York, 62 NY2d 506; Weiner v Metropolitan Transp. Auth., 55 NY2d 175.) IV. The court below applied an unconstitutional standard in reversing the trial court. (Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420; City of Albany v State of New York, 21 AD2d 224, 15 NY2d 1024; Zeidner v Wulforst, 197 F Supp 23; Gregg Dyeing Co. v Query, 286 US 472; McGowan v Maryland, 366 US 420; Two Guys v McGinley, 366 US 582; Bernardine v City of New York, 294 NY 361; East Coast Lbr. Term. v Town of Babylon, 174 F2d 106.)

      William H. Collier, III and James P. Gilpatric for appellants in the third above-entitled action.
    I. The court below erred, as a matter of law, in finding that the 1972 and 1973 studies and Thruway Authority staff actions thereafter which formed the basis for a safety plan with respect to the erection of a median barrier on the tangent section of the Tappan Zee Bridge were adequate and reasonable. (Weiss v Fote, 7 NY2d 579.) II. The court below erred, as a matter of law, in reversing the finding by the trial court that the New York State Thruway Authority breached its continuing duty to review and revise its highway safety plan in light of its actual operation. (Gutelle v City of New York, 55 NY2d 794; Weiss v Fote, 7 NY2d 579; Atkinson v County of Oneida, 59 NY2d 840; Danbois v New York Cent. R. R. Co., 12 NY2d 234; Sanford v State of New York, 94 AD2d 857; Heffler v State of New York, 96 AD2d 926; Eastman v State of New York, 303 NY 691.) III. The court below erred, as a matter of law, in reversing the findings of the trial court that the New York State Thruway Authority was negligent in maintaining the Tappan Zee Bridge in an unsafe condition after it had knowledge of an unusually dangerous condition and thereafter engaged in an unconscionable delay in effectuating the known remedy. (Tomassi v

      Town of Union, 46 NY2d 91; Zalewski v State of New York, 53 AD2d 781; Sanchez v Lippincott, 89 AD2d 372; Bottalico v State of New York, 59 NY2d 302; Rinaldi v State of New York, 49 AD2d 361; Trabisco v City of New York, 280 NY 776; Edgett v State of New York, 7 AD2d 570; Lattanzi v State of New York, 74 AD2d 378, 53 NY2d 1045; Waddingham v State of New York, 90 AD2d 855; Warren v New York State Thruway Auth., 51 AD2d 679.)

      Robert Abrams, Attorney-General (Michael S. Buskus, Robert Hermann and Peter H. Schiff of counsel), for respondents in the second and third above-entitled actions.
    I. The Weiss v Fote rule forbids courts from reweighing or rebalancing factors which governmental transportation officials have weighed and considered in the formulation of a transportation safety plan. (Weiss v Fote, 7 NY2d 579.) II. This court has previously held that median barriers need not be added as an incremental safety feature, even if a highway has a significant history of cross-median accidents. (Stuart-Bullock v State of New York, 38 AD2d 626, 33 NY2d 418; Warda v State of New York, 45 Misc 2d 385; Natina v Westchester County Park Commn., 49 Misc 2d 573; Schwartz v New York State Thruway Auth., 61 NY2d 955; Holscher v State of New York, 59 AD2d 224, 46 NY2d 792; Puliatti v State of New York, 91 AD2d 1192, 59 NY2d 603; Kaufman v State of New York, 27 AD2d 587.) III. The Weiss v Fote doctrine, which epitomizes important governmental separation of powers precepts, should not be overruled. (Annino v City of Utica, 276 NY 192; Urquhart v City of Ogdensburg, 91 NY 67; Tango v Tulevech, 61 NY2d 34; Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Santangelo v State of New York, 101 AD2d 20; Van Iderstine v Lane Pipe Corp., 89 AD2d 459; Schwartz v New York State Thruway Auth., 61 NY2d 955; Zalewski v State of New York, 53 AD2d 781; Lattanzi v State of New York, 74 AD2d 378, 53 NY2d 1045; Heffler v State of New York, 96 AD2d 926.) IV. Continuous planning responsibilities envisioned by Weiss v Fote must be reviewed by no less deferential a standard than is applicable to selection of the original plan or design. (Cimino v City of New York, 54 AD2d 843, 43 NY2d 966; Russell v State of New York, 75 AD2d 907, 53 NY2d 986; Ufnal v Cattaraugus County, 93 AD2d 521, 60 NY2d 554; Van Iderstine v Lane Pipe Corp., 89 AD2d 459; Boyd v State of New York, 103 AD2d 882; Schuls v State of New York, 92 AD2d 721; Chionchio v New York State Thruway Auth., 112 AD2d 610; Gleich v Volpe, 32 NY2d 517; Niagara Frontier Tr. Sys. v State of New York, 57 AD2d 59; New York Tel. Co. v City of New York, 95 AD2d 282, 65 NY2d 681.) V. Weiss v Fote is not unconstitutional. (Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Collins v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 361; Schwartz v New York State Thruway Auth., 61 NY2d 955; Rooney v State of New York, 111 AD2d 159; Chionchio v New York State Thruway Auth., 112 AD2d 610.)
   OPINION OF THE COURT

Alexander, J.

In each of these personal injury actions arising out of "crossover” accidents occurring on highways constructed and maintained by the State of New York in which a vehicle crossed the median dividing opposing lanes of traffic, a common issue is presented: whether the State breached its duty to alleviate a known hazardous highway condition. The alleged negligence in each case was the State’s failure to install median barriers at the accident site. The facts in each case are as follows.

Friedman v State of New York

On March 15, 1978, at about 5:00 p.m., claimant Dena Friedman was driving in an easterly direction across the Roslyn Viaduct, an elevated portion of Northern Boulevard (State Route 25A) located in Nassau County. The viaduct had two lanes of traffic in each direction separated by a median traffic divider that was 8 inches high and 46 inches wide. While Friedman was in the left lane next to the median, her car was struck by a vehicle that cut her off while attempting to pass. The collision caused Friedman’s car to swerve to the left and cross the median. As it continued across the two westbound lanes, the car was struck in the side by a westbound vehicle and hit a 21-inch-high pedestrian curb the angled top of which acted as a ramp, propelling the car over the 3-foot-wide walkway and a 39-inch guardrail into a 50-foot-deep ravine.

Friedman suffered severe personal injuries. She commenced this action against the State charging the State’s negligent failure to install a median barrier and safe guardrails on the viaduct.

Following trial, the Court of Claims found that as early as February 1973 the New York State Department of Transportation’s (DOT) Traffic and Safety Division (Region 10) had recognized, based on a proliferation of crossover accidents, two of which involved fatalities, that a median barrier was necessary on the viaduct. From that point on, DOT’S employees, including safety, maintenance, traffic and design engineers, submitted numerous requests and recommendations that median barriers be installed.

A DOT "Project Proposal and Evaluation” dated August 2, 1974 estimated that a general rehabilitative project on the viaduct, including grading, paving, drainage, lighting and installation of concrete median barriers, could be completed in 18 months. The State’s expert testified that if the project had been a priority, construction could have been started within three or four years. The expert conceded that temporary barriers could have been installed in the interim.

Nevertheless, at the time of the accident in 1978, construction on the proposed viaduct project had not yet begun and temporary barriers had not been installed. Two factors put forth by the State at trial as contributing to the delay were (1) that the project’s scope and cost had been expanded repeatedly to encompass many additional items including repairs to bridge abutments and approach pavement, a variety of cleaning, painting and resurfacing jobs on the viaduct, and repairs on a lVz mile stretch of Northern Boulevard and a Long Island Railroad Bridge, and (2) that a request for funding submitted to DOT’s Capital Project Section by Region 10 had been rejected because of inadequate documentation.

The State’s expert also testified that the project had not been given priority because a greater number of fatal accidents had been occurring on the entire length of several major highways in Nassau and Suffolk Counties than on the 2,000-foot Roslyn Viaduct. No evidence was adduced, however, as to the number of crossover accidents on those highways or whether a large proportion of the accidents had been occurring on relatively short stretches thereof. Nor was any evidence proffered as to other projects that had been given priority over the Roslyn Viaduct project.

The Court of Claims determined that the State and claimant each were 50% liable for claimant’s injuries, and ordered a trial to assess damages. The court rejected the State’s governmental immunity argument, which was based on its assertion that it had, in good faith, set priorities for the use of availablé funds, holding that the evidence did not establish that priorities had ever been set.

On cross appeals, the Appellate Division affirmed the interlocutory judgment. The court held that the governmental immunity doctrine enunciated in Weiss v Fote (7 NY2d 579) was inapplicable since the State’s own experts had recommended that barriers be installed immediately on the viaduct and the State failed to show that the delay in remedying the known hazardous condition resulted from a discretionary decision concerning funding priorities (111 AD2d 921). The appeal is now before this court on a certified question of law.

Cataldo v New York State Thruway Auth.

At 3:30 p.m. on January 26, 1973, Connie Flachs Cataldo was traveling west across the Tappan Zee Bridge. The bridge, which was opened in 1955 as part of the New York State Thruway, spans the Hudson River between Nyack in Rock-land County and Tarrytown in Westchester County. It is approximately 3 miles long and consists of two 37-foot-wide roadways in each direction separated by a raised 10-foot-wide median with a sloped 3-inch curb. Each roadway carries three lanes of traffic with no shoulder area.

The bridge can be divided roughly into three sections. From its west abutment it runs in a curve for approximately 3,100 feet. A straight, or tangent, section then stretches for approximately two miles. The span again curves at its east end. When it was constructed, the bridge contained no median barriers. In 1962, however, a 27-inch-high corrugated metal beam median barrier was installed along the curve at the west end.

On the day in question, Cataldo was driving on the westbound roadway, along the tangent portion of the bridge, in the lane next to the median. She collided with a vehicle that suddenly crossed the median from the easterly roadway. Cataldo suffered devastating personal injuries. She brought this negligence action against the New York State Thruway Authority (the Authority) based in part on its failure to place median barriers on the tangent section of the bridge.

The idea of installing median barriers on the Tappan Zee Bridge is not one that had escaped study by the Authority. Its first review of this issue took place in February 1962 following the occurrence of nine crossover accidents, and several fatalities, in the time since the bridge was put into service. A staff report presented to the Authority’s Director of Traffic noted that under certain circumstances a median barrier could be a valuable safety device. The report cautioned, however, that while barriers eliminate most crossover accidents, they tend to increase other types of accidents because they often bounce cars back into the flow of traffic, causing rear end and "pile on” collisions when traffic is heavy in one direction. The report also raised the specter that the median would be lost as a refuge for disabled vehicles and as an access route for emergency vehicles.

A second report submitted to the Director of Traffic in July 1962 by a traffic and safety engineer also questioned the overall effectiveness of median barriers on the bridge, but concluded that barriers should be installed on the west curve, which had a high concentration of crossover accidents. The recommendation with respect to the west curve was approved by the Authority chairman and the Thruway Authority Board in October 1962 and the barrier was installed.

No further comprehensive study of the barrier question was undertaken until July 1972 when the Director of Traffic appointed John Manning, one of the Authority’s Traffic and Safety engineers, to report on the desirability of installing barriers on the entire length of the bridge. Manning’s report acknowledged that crossover accidents on the west curve had been virtually eliminated since installation of a barrier. The report, however, reiterated the fears expressed 10 years earlier that a barrier would increase one-way accidents involving cars that were bounced back into traffic as well as rear end collisions resulting from disabled cars that would have to remain in the traffic lanes because of the loss of the median as a refuge. The report rated the feasibility and drawbacks of several approaches, including the installation of immovable barriers on either the east curve of the bridge or the entire length of the bridge as well as the placement of movable barriers that would allow for optimum traffic control. With respect to installing an immobile barrier on the tangent section, the report was not optimistic, noting that a tow truck would probably have to be stationed permanently at one end of the bridge to ensure adequate removal of disabled cars. The. idea of movable barriers, the report stated, would probably require considerable study and expense.

The Court of Claims denied the Authority’s motion to dismiss the claim, and entered judgment in claimant’s favor in the amount of $2,125,000. The court held that claimant had established the Authority’s negligence because, in its view, "had the matter been properly studied, a barrier would have been constructed on the tangent section of the bridge years before [the accident]” and the "decision not to do so * * * [was] not predicated upon reasonable professional engineering judgment.” The court based its holding on (1) its opinion that the Authority had overstated the value of the median mall as a factor in the safe and efficient flow of traffic on the bridge, (2) the fact that other bridges of similar character had median barriers, (3) the prevailing state of the art in highway design as it developed in the late 1960’s and early 1970’s, and (4) the continuous occurrence of crossover accidents on the bridge between 1962 and 1972.

The Appellate Division reversed and dismissed the claim, holding that "[b]ecause [the Authority’s] decision not to install median barriers was premised upon a reasonable public safety plan, it may not be held liable for claimant’s injuries” (111 AD2d 144).

Muller v State of New York

On December 17, 1977, at 7:20 a.m., Ernest Muller was driving eastbound on the tangent section of the Tappan Zee Bridge when he collided with a vehicle that had crossed the central median from the westbound roadway. Muller and his wife brought this action against the State of New York and the Thruway Authority alleging, inter alla, the Authority’s negligent failure to install median barriers on the tangent portion of the bridge. The claim against the State was dismissed, and the Court of Claims held that the Authority was liable for Muller’s injuries. A judgment in claimants’ favor was entered in the amount of $50,500.

The relevant facts for the period up until January 1973 are the same as those stated above with respect to the Cataldo claim. Thereafter, on February 28, 1973, the Manning report was reviewed by the Authority’s Traffic and Safety Committee, and the committee decided that a median barrier should be installed on the bridge’s east end. This project was completed by the spring of 1975. With respect to the tangent portion of the bridge, the committee deferred decision on the barrier question until further study could be had of the operational problems raised in the Manning report as well as safety recommendations that had been put forth in a report by Fred H. Fischer, an Authority bridge engineer. In his June 1973 report, Fischer recommended that barriers be placed on the tangent section and proposed measures to improve drainage and road surface and installation of traffic control lights on the length of the bridge.

By September 1974 the Authority’s chairman and its board had agreed that median barriers should be installed on the entire length of the bridge. Once this decision was made the Authority undertook to study and resolve two issues: (1) the concurrent installation of a traffic control system, and (2) the location of the barrier, i.e., whether it should be built straight down the center of the median, or in a serpentine or zigzag fashion that would provide alternating breakdown bays. Three years passed between the decision to install barriers and the Muller accident.

The Court of Claims finding of negligence against the Authority was based on its view (1) that in the 10 years following its initial decision not to install barriers, the Authority breached its continuous duty to review this determination, (2) that the 1972 and 1973 reports by Manning and Fischer were inadequate, and (3) that the delay between the decision in August 1974 to install barriers and the Muller accident in December 1977 was unreasonable.

The Appellate Division reversed and dismissed the claim, holding that (1) the Authority could not be liable under the rule of Weiss v Fote (7 NY2d 579, supra) since it was acting pursuant to a reasonable public safety plan, (2) that any breach of the Authority’s duty to reevaluate its safety plan between 1962 and 1972 was vitiated by the experts’ recommendation in 1974 that barriers not be installed on the tangent, and (3) that the delay in installing the barrier once the decision to do so was made was not unreasonable.

We now affirm the orders of the Appellate Division in Friedman and Cataldo, and reverse the order appealed from in Muller.

It has long been held that a municipality " 'owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition’ ” (Weiss v Fote, 7 NY2d 579, 584, supra, quoting Annino v City of Utica, 276 NY 192, 196; see also, Lopes v Rostad, 45 NY2d 617, 623). While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality’s planning and decision-making functions. Thus, in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision (Alexander v Eldred, 63 NY2d 460, 465-466; Weiss v Fote, 7 NY2d 579, 585-586, supra). In the seminal Weiss case, we recognized that "[t]o accept a jury’s verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts” (7 NY2d, at pp 585-586, supra). The Weiss court examined a municipality’s decision to design a traffic light with a four-second interval between changing signals, and concluded that there was no indication that "due care was not exercised in the preparation of the design or that no reasonable official could have adopted it” (id., at p 586). We went on to note that "something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public” (id., at p 588).

Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan (Alexander v Eldred, 63 NY2d 460, 466, supra [municipality’s traffic engineer’s mistaken belief that the city had no authority to place a stop sign on a private road]). Once the State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger (Heffler v State of New York, 96 AD2d 926, 927; Sanford v State of New York, 94 AD2d 857, 859; Atkinson v City of Oneida, 77 AD2d 257). Moreover, after the State implements a traffic plan it is "under a continuing duty to review its plan in the light of its actual operation” (Weiss v Fote, 7 NY2d 579, 587, supra; Atkinson v City of Oneida, 77 AD2d 257, 261, supra).

Before analyzing the cases before us in light of these principles, it is pertinent to discuss the procedural posture in which they are presented. In Friedman v State of New York, there is an affirmed finding of fact that the State breached its duty by its unreasonable delay in acting to remedy a known dangerous highway condition once the decision to do so had been made. This finding must be upheld if supported by evidence in the record (Huntley v State of New York, 62 NY2d 134, 137). In both Cataldo v New York State Thruway Auth. and Muller v State of New York, however, the intermediate appellate courts reached the factual conclusion, contrary to the respective trial courts, that the duty to the claimants was not breached. Thus, the scope of our review is limited to determining whether the evidence of record in each of these cases more nearly comports with the trial court’s findings or with those of the Appellate Division (Matter of Nathaniel T., 67 NY2d 838; Suria v Shiffman, 67 NY2d 87; Oelsner v State of New York, 66 NY2d 636, 637).

In Cataldo and Muller it is clear that no liability can flow from the Authority’s initial decision in 1962 not to construct median barriers on the tangent section of the bridge. This decision was consistent with the opinions that were expressed by experts in the Authority’s employ and was a rational response to valid safety concerns. The claimants argue, however, that by failing to reevaluate the barrier issue between 1962 and 1972 the Authority breached its "continuing duty to review its plan in the light of its actual operation” (Weiss v Fote, 7 NY2d 579, 587, supra). They contend that this inactivity was inexcusable given the changes in the state of the art of highway design occurring during that time. While this position might have some force if urged with respect to an accident occurring during the 10-year period of inactivity, such is not the case at bar. Here, both accidents occurred after the Authority reviewed its plan in 1972 and again reached the conclusion that the public’s safety would be better served by not installing median barriers.

Claimants argue, however, that the 1972 engineer’s reports upon which the Authority’s decision was made were the product of inadequate study of the issue (see, Alexander v Eldred, 63 NY2d 460, 466, supra). The gravamen of this assertion is that the reports failed to consider the history of the west curve barrier since its installation in 1962 and attached inordinate importance to operational difficulties that would be incurred while downplaying safety concerns to an inappropriate degree.

Strong policy considerations underpin the qualified immunity doctrine set forth in Weiss (supra), and, in cases such as these where a governmental body has invoked the expertise of qualified employees, the Weiss directive should not be lightly discounted. Appellants would have us examine the criteria that were considered by the State’s professional staff, emphasize factors allegedly overlooked, and, with the benefit of hindsight, rule that the studies were inadequate as a matter of law. We decline this invitation, for to do so, as the Appellate Division correctly concluded, "would constitute the type of judgment substitution that Weiss v Fote (supra) prohibits” (Muller v State of New York, 108 AD2d 181, 189).

Because the Authority’s decisions prior to the Cataldo accident in 1973 not to install median barriers were based on reasonable public safety considerations the Appellate Division properly dismissed the claim in that case. The Authority fulfilled its duty under Weiss by studying the dangerous condition, determining that design changes were not advisable and later reaching the same conclusion upon reevaluation of its decision.

In Friedman and Muller, however, a further basis upon which the defendants may be held liable is tendered: that once a decision has been reached to go forward with a plan intended to remedy a dangerous condition, liability may result from a failure to effectuate the plan within a reasonable period of time. Although this precise question has not been specifically addressed by this court, several Appellate Division decisions have held that when the State is made aware of a dangerous highway condition and does not take action to remedy it, the State can be held liable for resulting injuries (Lattanzi v State of New York, 74 AD2d 378, 379-380, affd 53 NY2d 1045; Zalewski v State of New York, 53 AD2d 781, 782; Stuart-Bullock v State of New York, 38 AD2d 626, 627, affd 33 NY2d 418). This conclusion flows logically from the premise that the State has a nondelegable duty to maintain its roads in a reasonably safe condition (Lopes v Rostad, 45 NY2d 617, supra), and it applies even if the design in question complied with reasonable safety standards at the time of construction. Of course as we have said, when a municipality studies a dangerous condition and determines as part of a reasonable plan of governmental services that certain steps need not be taken, that decision may not form the basis of liability (e.g., Alexander v Eldred, 63 NY2d 460, supra; Weiss v Fote, 7 NY2d 579, supra). When, however, as in Friedman and Muller, analysis of a hazardous condition by the municipality results in the formulation of a remedial plan, an unjustifiable delay in implementing the plan constitutes a breach of the municipality’s duty to the public just as surely as if it had totally failed to study the known condition in the first instance.

In Friedman, there is evidence to support the affirmed finding that the State unreasonably delayed its remedial action. The State failed to demonstrate at trial either that the five-year delay between DOT’S recognition of the hazardous condition on the viaduct and its project proposal and the Friedman accident was necessary in order to study and formulate a reasonable safety plan, that the delay was itself part of a considered plan of action taken on the advice of experts, or that the delay stemmed from a legitimate ordering of priorities with other projects based on the availability of funding (Puliatti v State of New York, 91 AD2d 1192; see, Gutelle v City of New York, 55 NY2d 794, 795; Tomassi v Town of Union, 46 NY2d 91, 97).

Similarly, in Muller, we conclude that the record evidence more nearly comports with the trial court’s finding that the three-year delay between the Authority’s decision in 1974 to construct median barriers and the Muller accident in 1977 was unreasonable. This is not to say that the study and resolution of issues surrounding the concurrent installation of a traffic control system and the optimum location of the barrier, the ostensible cause of the delay, was not warranted. Indeed, a reasonable delay justified by design considerations, as with one resulting from a legitimate claim of funding priorities, would not be actionable. Our review of the evidence, however, reveals that the period of consideration in this case was marked by only intermittent spurts of study and evaluation and long gaps of inactivity, wholly inconsistent with the project’s designation in an Authority press release as one having a "high priority” for which "[n]o significant delay [wa]s expected.”

Specifically, a traffic control system, which would consist of electronic message signs and directional signals designed to redirect traffic in cases of lane closures, was originally proposed as part of the east curve barrier installation project. Both the Traffic and Safety Committee and the Fischer report recommended in June 1973 that such a system be installed on the entire length of the bridge. These recommendations were echoed by the Authority’s Traffic and Safety Engineer, its Director of Operations and other staff members. Thus, on September 17, 1973, the Chairman requested a firm proposal on the installation of a traffic control system together with the east curve barrier and the inclusion of funds for both projects in the 1974 budget. Thereafter, it appears that no further discussion of the need to install the control system took place for 21 months until a private consulting firm, Madigan-Praeger, reiterated that the system was "considered to be a very important element of the median installation.”

Despite these strong recommendations and its own prior awareness of the need for a traffic control system, it was not until September 1, 1976 that the Authority finally determined that installation of the system should precede construction of the barrier, and not until January 1977 that another consulting firm, Loring & Associates, was retained to design the system. The Loring report was completed in six months, and one month thereafter the staff reached agreement on all major issues involved.

With respect to the barrier location, the evidence reveals similar unexplained and unwarranted delays that likewise appear to have resulted from the failure to undertake basic substantive analysis of the issues on which the Authority’s staff disagreed. The Madigan-Praeger report, submitted nine months after the September 1974 decision to install median barriers on the tangent, discussed three possible designs — a straight barrier down the center of the median, a zigzag barrier and a straight barrier along the northern edge of the median. The report clearly reflected the view, however, that safety considerations mandated use of the centerline barrier despite the reduced operational flexibility of that location. Opposition to this recommendation was expressed immediately, and although the subject was to have been discussed again, no further expert study or discussion was undertaken for two years. Indeed, it was not until the July 19, 1977 staff and management meeting on the Loring & Associates traffic control report that the question was again raised. A second consultant, Vollmer Associates, was retained to review the Loring report and recommend a location for the barrier. The Vollmer report was received two weeks later, and on August 15, 1977 the decision was made to place the barrier down the center of the median.

In light of the high priority that was placed on the barrier project, which was certainly deserved considering the hazard that the project was intended to remedy, the absence of funding limitations and the relative ease with which design and operational problems were resolved once proper analysis was undertaken, it is evident that the delay in effectuating the Authority’s plan to alleviate the dangerous condition was unjustified, and therefore was a breach of its duty to the public. The evidence supports the trial court’s finding that the delay was a proximate cause of Muller’s injuries. The record shows that the barrier location and traffic control questions could have been resolved within one year, and, according to both sides’ experts, the construction could have been completed within 18 months.

We conclude, therefore, that the order of the Appellate Division in Cataldo should be affirmed, with costs. The order appealed from in Muller should be reversed, with costs, and the judgment of the Court of Claims reinstated. In Friedman, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Wachtler and Judges Meyer,, Simons, Kaye, Titone and Hancock, Jr., concur.

In Friedman v State of New York: Order affirmed, etc.

In Cataldo v New York State Thruway Auth.: Order affirmed, etc.

In Muller v State of New York: Order reversed, etc.

       Although the Appellate Division orders and decisions in Muller and
        Cataldo provide that the reversals are on the law alone, it is clear that the respective appellate courts reviewed the evidence and made their own factual findings.


author: Chief Judge Wachtler.

text:
    The People of the State of New York, Respondent, v Peter Rosner, Appellant.
    Argued March 18, 1986;
    decided May 1, 1986

      POINTS OF COUNSEL

      Daniel J. Beller, Edward N Costikyan and Dorothy E. Roberts for appellant.
    I. The People were not entitled to rely exclusively on circumstantial evidence to prove the charge of perjury. (Eighmy v People, 79 NY 546; People ex rel. Madigan v Sturgis, 110 App Div 1; People v Stone, 32 Hun 41; Woodbeck v Keller, 6 Cow 118; People v Gleason, 285 App Div 278; United States v Otto, 54 F2d 277; Weiler v United States, 323 US 606; People v Doody, 172 NY 165; Behrle v United States, 100 F2d 714; La Placa v United States, 354 F2d 56, 383 US 927; United States v Wood, 14 Pet [39 US] 430.) II. The evidence was insufficient to support the verdict. (People v Smith, 232 NY 239; People v Mullen, 22 AD2d 756; United States v Carman, 577 F2d 556; People v Kidd, 76 AD2d 665; People v Caviness, 38 NY2d 227; People v Edwards, 47 NY2d 493; Waterman v Whitney, 11 NY 157; People v McCullough, 73 AD2d 310; People v Gleason, 285 App Div 278; People v Clegg, 18 AD2d 694.) III. Evidentiary errors at trial and the prosecutor’s trial misconduct denied Rosner a fair trial. (People v Crimmins, 36 NY2d 230; People v Alicea, 37 NY2d 601; People v Hicks, 102 AD2d 173; People v Carter, 52 AD2d 829; People v Ashwal, 39 NY2d 105; People v Wright, 41 NY2d 172; People v Petrucelli, 44 AD2d 58; People v Steiner, 30 NY2d 762; People v Melendez, 55 NY2d 445; People v Bennor, 86 AD2d 681.) IV. The trial court’s failure to notify defense counsel of the jury’s request for supplemental instructions and to respond to the jury’s request denied defendant a fair trial. (People v Gonzalez, 293 NY 259; People v Malloy, 55 NY2d 296, 459 US 847; People v Jackson, 20 NY2d 440, 391 US 928; United States v Wade, 388 US 218; United States v McCoy, 429 F2d 739; Baugh v Swenson, 279 F Supp 642; People v Sykes, 23 AD2d 701; People v Ramsey, 40 AD2d 837; People v Miller, 6 NY2d 152; People v Ravenell, 82 AD2d 868.) V. The trial court improperly imposed a custodial sentence on defendant because of his refusal to admit guilt. (United States v Tucker, 404 US 443; Scott v United States, 419 F2d 264; Thomas v United States, 368 F2d 941; United States v Laca, 499 F2d 922; People v Gittelson, 18 NY2d 427.)

      Robert M. Morgenthau, District Attorney (James Fogel and Norman Barclay of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt. (People v Barnes, 50 NY2d 375; People v Malizia, 92 AD2d 154, 62 NY2d 755; People v Rides, 273 NY 214; People v Montanez, 41 NY2d 53;
      People v Benzinger, 36 NY2d 29; People v Gallo, 75 AD2d 148; People v Turner, 73 AD2d 56; People v Johnson, 61 NY2d 932; People v Sabella, 35 NY2d 158.) II. Statements made by defendant and Bonizio were admissible and were properly used by the People. (People v Salko, 47 NY2d 230; People v Liccione, 63 AD2d 305, 50 NY2d 850.) III. There was no misconduct by the prosecutor. (People v Ashwal, 39 NY2d 105; People v Medina, 53 NY2d 951; People v Davis, 61 NY2d 202; Shaw v Tague, 257 NY 193; Town of Hempstead v Goldblatt, 9 NY2d 101, 369 US 590; People v Castillo, 16 AD2d 235, 12 NY2d 732; People v Johnston, 47 AD2d 897; People v Wright, 41 NY2d 172; People v Petrucelli, 44 AD2d 58; People v Anthony, 24 NY2d 696, 396 US 1025.) IV. The trial court properly did not respond to a note sent by the jury 10 minutes before they reported they had reached a unanimous verdict. (People v Jackson, 20 NY2d 440, 391 US 928.) V. Defendant’s sentence was legally imposed and appropriate. (People v Pena, 50 NY2d 400; People v Miller, 65 NY2d 502.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The defendant has been convicted of perjury for giving false testimony to a Grand Jury investigating a homicide. The Appellate Division affirmed and the defendant appeals. His primary contention is that the trial court erred "in permitting the prosecution to prove * * * perjury entirely by circumstantial evidence, where the alleged falsity of the defendant’s statements was capable of being proved by direct evidence”.

On August 24, 1982 the defendant complained to the police in Manhattan that Darren McNamara was harassing the defendant’s daughter by calling her, sending her letters, and following her. The investigating officer, Detective Hoffman, noted that this was not a high priority case because there had been no threats, but told the defendant that he would see what he could do. The defendant replied, "If the police can’t handle it, I will”.

The following day the defendant called Detective Hoffman and informed him that McNamara had threatened to kill the defendant’s daughter. The officer told the defendant that he would go to the address the defendant had given him and try to find McNamara. That evening, at about 8:30, the officer called the defendant and informed him he had been unable to locate McNamara or to reach him on the phone but would try again in a couple of days. The defendant said, "I got two guys that can handle it”, and "I’ll send them over”. Detective Hoffman told him, "I don’t want to hear that”. The defendant replied, "Don’t worry about it, goodbye”.

At approximately 9 o’clock that same evening McNamara was assaulted by two men on the street outside his apartment. One of the men, later identified as John Bonizio, beat McNamara with a baseball bat and told him "Keep away from her”. McNamara subsequently died as a result of the beating. Bonizio was a friend and former employee of the Rosner family. On August 30, five days after the assault, police officers saw Bonizio enter the defendant’s apartment accompanied by the defendant and his wife.

In November 1982 the defendant was summoned to appear before a Grand Jury investigating McNamara’s death. During that inquiry the defendant was asked the following questions and responded as indicated:

"Q. Did you ever ask John Bonizio to either see Darren McNamara or to contact him?

"A. No.

"Q. Did you ask anyone else other than Detective Hoffman to see or otherwise contact Darren McNamara?

"A. No.

"Q. Did you speak to John Bonizio on August 25th concerning Darren McNamara?

"A. I don’t believe so.”

On the basis of this testimony the defendant was indicted for perjury. At the trial the People called several witnesses to testify to the circumstances related above in support of the perjury charges. The defendant testified on his own behalf and corroborated much of the prosecution’s case. However, he claimed that the two men whose help he intended to seek were police officer acquaintances, whom he hoped would be able to obtain information concerning McNamara quicker than Hoffman could. He also claimed that he had seen Bonizio in July and again on August 30, 1982 and did not mention McNamara’s harassment to Bonizio until the latter date.

The defendant moved to dismiss the indictment on the ground, among others, that the People had failed to establish a prima facie case under Penal Law § 210.50, noting that the prosecution’s case was entirety circumstantial. The court denied the motion and the jury found the defendant guilty of three counts of perjury. The Appellate Division affirmed, without opinion (107 AD2d 652).

On this appeal the defendant contends that circumstantial evidence alone is generally insufficient to prove a perjury charge. He claims that there is a narrow exception recognized in this State in cases where the charge is inherently incapable of direct proof but urges that this exception is not applicable here. Thus he argues that the evidence was insufficient as a matter of law because the People did not produce any witness who either participated in or overheard, the conversations he allegedly had with Bonizio.

The arguments are based on the so-called "two-witness rule” recognized at common law (People v Fellman, 35 NY2d 158, 168) and codified in this State in Penal Law § 210.50. That statute provides, with exceptions not relevant here, that in "any prosecution for perjury * * * falsity of a statement may not be established by the uncorroborated testimony of a single witness”. On its face the statute only requires the People to furnish corroboration of a witness who testifies to the falsity of the defendant’s statement, and does not expressly preclude them from relying on circumstantial evidence. However, a majority of the States which still follow the two-witness rule have held that it also establishes a qualitative evidence standard which requires the People to submit direct evidence of falsity and corroboration in perjury cases generally (see, Conviction of perjury where one or more of elements is established solely by circumstantial evidence, Ann., 88 ALR2d 852). This rule, generally prohibiting the prosecution from relying totally on circumstantial evidence in perjury cases, has been criticized and the courts which originally adopted it have subsequently diluted it with exceptions (see, e.g., Ann., op. cit., at 857-858; see also, 7 Wigmore, Evidence §§ 2040, 2041 [3d ed 1940]). It has never been recognized by the courts of this State as having any validity (see, e.g., People v Doody, 172 NY 165; People v Fellman, 35 NY2d 158, 168, supra; People v Gottfried, 61 NY2d 617; People v Malone, 9 AD2d 658, affd 7 NY2d 1034; Ann., op. cit., at 873).

In People v Doody (supra), we expressly held that the People could rely entirely on circumstantial evidence to prove a charge of perjury. However, the defendant urges that that case created a narrow exception, permitting the People to rely exclusively on such proof only when the charge was inherently incapable of being proven by direct evidence. He notes that courts in other jurisdictions have so construed our holding (see, e.g., United States v Otto, 54 F2d 277; Behrle v United States, 100 F2d 714, 715; State v Shoemaker, 211 Ore 55, 559 P2d 498). The argument is based on the fact that in Doody, the defendant was charged with falsely testifying that he could not remember certain events. This, the defendant argues here, could not have been proven by direct evidence, and therefore circumstantial evidence alone was accepted for the limited purpose of proving subject matter which is not by its nature susceptible of direct proof. It is further urged that the narrow exception thus created applies only in cases where it is theoretically impossible to prove the perjury by direct proof, and has no application where the People are, as a practical matter, unable to offer direct evidence of a fact theoretically capable of such proof (see, e.g., United States v Otto, supra, p 279). Thus in the case now before us the defendant contends that the People were not entitled to rely on the exception because they could, theoretically, have called Bonizio or some other witness who overheard the conversations, even though it might have been actually impossible for the People to produce such a witness.

Our holding in Doody was not expressly limited to cases of inherent impossibility and the facts of the case do not support the suggested limitation. A confession or admission is direct proof (People v Lipsky, 57 NY2d 560, 570; People v Bretagna, 298 NY 323) and it is not theoretically impossible for the defendant to admit to another that he previously lied when he testified that he did not recall certain events (cf. People v Fellman, supra, pp 161-162). In fact, the Doody case did not recognize any general rule prohibiting the People from relying entirely on circumstantial evidence in perjury cases, nor did it create a limited exception. On the contrary we held that the two-witness rule does not pose any impediment to proving perjury solely on the basis of circumstantial evidence.

That holding is consistent with the limited purpose Penal Law § 210.50 serves in this State. The common-law rule was retained by the Legislature to protect " 'honest witnesses’ ” from unfounded, retaliatory complaints of perjury by " 'defeated litigants’ ” (People v Fellman, supra, p 168; Denzer & McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 210.50 [1967]). It is analogous to the accomplice rule because "both of these corroboration rules are founded on the common theory that an accused should not be convicted solely upon the testimony of a witness having a clear motive to fabricate” (People v Fellman, supra, pp 168-169). All that these rules require is that the People provide corroboration when they choose to rely on the suspect testimony of an accomplice or a single witness offering evidence, even direct evidence, of the defendant’s perjury. Neither rule was intended to require the People to produce the "suspect” testimony in every case or forfeit the prosecution when, as here, they are able to offer circumstantial evidence which alone is sufficient to establish guilt.

We have considered the defendant’s other arguments and have found that they were either not preserved or lack merit.

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

Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed.