text:
    The People of the State of New York, Respondent, v Roger Hicks, Appellant.
    Argued September 8, 1986;
    decided October 23, 1986

      POINTS OF COUNSEL

      Susan V. Tipograph for appellant.
    I. The initial stop of appellant’s automobile was unjustified and a violation of his rights. (United States v Shavers, 524 F2d 1094; Terry v Ohio, 392 US 1; Brinegar v United States, 338 US 160; United States v Sharpe, 470 US 675; Kolender v Lawson, 461 US 352; Dunaway v New York, 442 US 210; Kent v Dulles, 357 US 116.) II. The detention and transportation of appellant to the scene of the robbery was a violation of his constitutional rights. (People v Brnja, 50 NY2d 366; People v Henley, 53 NY2d 403; People v Battaglia, 56 NY2d 558; People v De Bour, 40 NY2d 210; Wong Sun v United States, 371 US 471; People v Bigelow, 66 NY2d 417; People v Johnson, 66 NY2d 398; People v Gokey, 60 NY2d 309; People v Adams, 53 NY2d 241.)

      Richard J. Arcara, District Attorney (Louis A. Haremski and John J. DeFranks of counsel), for respondent.
    The stop of appellant’s car was predicated upon reasonable suspicion and, therefore, the events which followed were constitutionally proper. (Terry v Ohio, 392 US 1; Elkins v United States, 364 US 206; People v De Bour, 40 NY2d 210; United States v Wade, 388 US 218; People v Brnja, 50 NY2d 366; People v Tutt, 38 NY2d 1011; People v Harrison, 57 NY2d 470; People v George T., 48 AD2d 779, 39 NY2d 1028; United States v Brignoni-Ponce, 422 US 873; People v Johnson, 102 AD2d 616.)
   OPINION OF THE COURT

Kaye, J.

We now answer the question reserved in People v Brnja (50 NY2d 366, 369): in the absence of probable cause, whether and when it is permissible for the police, having made a lawful stop, to detain the suspect and transport him to the crime scene for possible identification.

Shortly after 4:00 a.m. on November 12, 1981, Police Officer Murray Wright and his partner heard a radio report that a holdup had occurred at a nearby factory. As they headed toward the factory in their patrol car, another broadcast seconds later identified the robbers as two black men, both about five-feet five-inches tall, in a green Pontiac with black trim. At approximately that moment, at an intersection about a quarter mile from the factory, the officers saw two black men in a grey and black Buick sedan, turning out of the street near the factory, with no other traffic at the intersection. Both men appeared to Wright to be "sitting low in their seats”, indicating their height. Suspecting that they might be the robbers, the officers pulled them over.

Upon approaching the car, Wright (a police officer for 15 years) observed that both men seemed about five-feet five-inches tall. Asked where they had been, they responded that they were coming from work at American Brass, which Wright knew was not in the area, and in fact was miles away in the opposite direction. The officer then ordered the men out of the car and patted them down for weapons. He told them about the robbery, that he was going to take them to the factory for possible identification; he intended to release them if they were not identified. The passenger got into the back seat of the patrol car while defendant, the driver, first went to park the car nearby and then also got into the patrol car. Neither was handcuffed, and both accompanied the police without objection. There is no evidence that guns were drawn at any point. No additional questions were asked. Less than a minute later the patrol car arrived at the factory — these were the first police officers on the scene — where three of the victims identified both suspects. They were then placed under arrest, and they and the car were searched, revealing weapons, as well as other implements and fruits of the crime. In Wright’s estimation, approximately 10 minutes had elapsed between completion of the holdup and the identification.

While defendant — convicted after a jury trial of first degree robbery and related offenses — below challenged also the showup and the automobile search, on this appeal only the stop, and the subsequent detention and transportation to the crime scene, are in issue. We conclude that both were permissible and therefore affirm the conviction.

The warrantless stop and frisk were a seizure violative of the State and Federal Constitutions (NY Const, art I, § 12; US Const 4th Amend) unless based on reasonable suspicion of criminal activity (CPL 140.50), meaning " 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion’ ”. (People v Ingle, 36 NY2d 413, 420; see also, People v Cantor, 36 NY2d 106, 113; Terry v Ohio, 392 US 1.) Both courts below found the stop and frisk supported by the officer’s reasonable suspicion that defendant committed the robbery. Reasonable suspicion involves a mixed question of fact and law, and when there is support in the record for that undisturbed finding the matter is beyond the scope of our review (see, People v Van Luven, 64 NY2d 625, 627; People v Harrison, 57 NY2d 470).

Defendant’s assertion (adopted by Appellate Division dissenters) that the only basis for the stop was that the men in the car were black in a white neighborhood presents an issue of sufficiency and thus raises a question of law (People v McRay, 51 NY2d 594, 601). But that argument overlooks the other evidence corroborating the radio report, including the presence of two men of apparently equal size in a car close to, and coming from the direction of, the factory where a robbery had occurred only minutes before, at 4:00 a.m., with little or no other traffic in the area. There was thus sufficient evidence to raise an issue of credibility, placing the undisturbed finding beyond our review.

The presence of reasonable suspicion to support the original stop and frisk, however, still leaves open the question whether an otherwise valid stop became invalid by virtue of the subsequent detention and transportation of defendant to the crime scene. At the outset we reject the People’s contention that the police action was supported by probable cause, which would justify even an arrest and end our inquiry. Probable cause requires information sufficient to support a reasonable belief that an offense has been or is being committed by the suspect (CPL 140.10; see, People v Bigelow, 66 NY2d 417, 423). While the suppression court found probable cause to arrest, significantly the Appellate Division did not agree; indeed, two Justices believed that even reasonable suspicion was lacking. Nor can we hold that the facts known to the police at the time — including a nonspecific description of the perpetrators and some variation from the description of the automobile — gave rise to a reasonable belief as a matter of law that these suspects had committed the robbery. In the absence of probable cause, we must consider whether the actions of the police in detaining and transporting defendant to the crime scene violated his State and Federal constitutional rights to be free of unreasonable governmental intrusions.

Resolution of this question must begin with characterizing the police action: was it an arrest (see, CPL 140.05, 140.10, 140.15) or a stop (see, CPL 140.50; People v Cantor, 36 NY2d 106, supra; Terry v Ohio, 392 US 1, supra)? Next, if not an arrest but a Terry-type stop, did the police action here exceed the allowable limits of such a stop? We determine that, on the facts before us, the detention and transportation were not an arrest, but a permissible incident of a lawful stop.

An arrest and search of a suspect are unquestionably unlawful without probable cause (see, Dunaway v New York, 442 US 200; People v Battaglia, 82 AD2d 389, revd on dissent of Hancock, Jr., J., at App Div 56 NY2d 558). But not every seizure is an arrest. By the same token, the police testimony that defendant was arrested only after identification by the victims is not conclusive of the issue. Even without a technical formal arrest, a suspect’s detention may in fact be the equivalent of an arrest, requiring probable cause. As with many other questions in this troubling, sensitive area of police encounters with private citizens, the desire for a fixed list of factors that will guide persons in the field and courts sitting in review is frustrated by the speed and individuality with which such situations develop. No checklist has yet been assembled that would facilitate mechanical determination of when a given set of circumstances equals an arrest (see, Dix, Nonarrest Investigatory Detentions in Search and Seizure Law, 1985 Duke LJ 849, 921; Preiser, Confrontations Initiated by the Police on Less than Probable Cause, 45 Albany L Rev 57; and LaFave, Fourth Amendment in an Imperfect World: On Drawing fBright Lines” and "Good Faith”, 43 U Pitt L Rev 307). We have rejected as standards for determining when a de facto arrest has taken place the wholly subjective belief of the officer, as well as that of the citizen (see, People v Chestnut, 51 NY2d 14, 20; People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851), and looked instead to "what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s position” (People v Yukl, 25 NY2d 585, 589, supra). Applying this test, it is clear that the police action fell short of the level of intrusion upon defendant’s liberty and privacy that constitutes an arrest. Indeed, even on a wholly subjective analysis, we would conclude that defendant could not reasonably have believed that he was under arrest.

Defendant was not handcuffed, there was no show of force, he was permitted to park the car nearby before accompanying the police, he was not taken to the police station, the total time and distance involved were very brief, he was told the specific, limited purpose of the detention, and no information was asked of him after the initial inquiry. In direct contrast are Dunaway v New York (supra), where defendant was taken from his home in a police car to the station, placed in an interrogation room, given Miranda warnings and questioned at length by officers; People v Battaglia (supra), where defendant was handcuffed and his pockets searched, and he was placed in a police vehicle without any explanation of the circumstances while the police determined whether a crime had occurred; and People v Henley (53 NY2d 403) where, having first been confronted by a drawn gun, defendant was handcuffed, placed in a patrol car, driven in the patrol car to the crime scene and then home, while the police looked for evidence (ultimately found in his apartment) that would justify his arrest. Significantly, in none of those cases was defendant informed of the nature of the detention and that he would be released unless arrested.

The nonarrest detention including transportation of defendant to the crime scene was within the bounds of a lawful investigatory stop.

There can be no question that the stop recognized in Terry v Ohio (392 US 1, supra) and CPL 140.50 is a narrowly drawn exception to the requirement of probable cause (see, Dunaway v New York, 442 US 200, supra). However, as the Supreme Court itself has made clear, "the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry and Adams.” (Michigan v Summers, 452 US 692, 700.) "If the purpose underlying a Terry stop — investigating possible criminal activity — is to be served, the police must under certain circumstances be able to detain the individual for longer than the brief time period involved in Terry and Adams. ” (Michigan v Summers, 452 US, at p 700, n 12, supra; see, Dunaway v New York, 442 US 200, 219 [White, J., concurring], supra; see also, United States v Sharpe, 470 US 675; and United States v Place, 462 US 696, 709.)

In the present case, a robbery had been reported. In the circumstances given, defendant’s response to the officer’s initial inquiry — that he was just returning from work at American Brass — was unsatisfactory to allay the officer’s already well-founded suspicion that defendant may have committed that robbery. Indeed, the officer knew that American Brass was nowhere in the area, so that the only effect of the response was to arouse his suspicions even further. At that point, defendant urges, the law required the police simply to set him free because there was still no probable cause to arrest him, and nothing between a momentary stop and an arrest is permissible. This is hardly a sensible result, and is certainly not compelled by law. Defendant’s own action gave the police reason for prolonging the stop and inquiring further; the critical question is what are the bounds of such a prolonged stop.

The Appellate Division concluded that detaining defendant and transporting him to the crime scene were in the circumstances not unreasonable, and were therefore lawful, relying principally on the following guideposts set forth in United States v Sharpe (470 US, at pp 682-686, supra): first, the action must be reasonably related in scope to the circumstances justifying the interference in the first place. Second, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria. Third, in this examination it is appropriate to consider that the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. Finally, " '[a] court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.’ ” (116 AD2d, at p 155.)

Sharpe, of course, involved only the question whether a person suspected of criminal activity might be detained for a period of 20 minutes, and not the additional issue of movement of the suspect to the crime scene. Nonetheless, we agree with the Appellate Division that, applying a test of reasonableness, as more precisely articulated in Sharpe and its cited antecedents, the police action here did not violate defendant’s constitutional rights to be free of unreasonable searches and seizures: the police diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant (see, 3 LaFave, Search and Seizure § 9.2, at 40).

Nor does the fact that the detention included transporting defendant to the crime scene render the seizure unreasonable. There were witnesses within a quarter mile of the place of inquiry — approximately one minute away by car — who had just seen the perpetrators and would either identify defendant (in which event he would be arrested) or not identify him (in which event he would be released). A speedy on-the-scene viewing thus was of value both to law enforcement authorities and to defendant, and was appropriate here (see, People v Love, 57 NY2d 1023; People v Adams, 53 NY2d 241, 249; People v Brnja, 50 NY2d 366, supra; People v Blake, 35 NY2d 331, 337; see also, People v Lippert, 89 Ill 2d 171, 184, 432 NE2d 605, and 3 LaFave, Search and Seizure § 9.2, at 40-45, and 1986 Pocket Part, at 26). The transportation did not unduly prolong the detention. Defendant might, alternatively, have been momentarily detained where he had been stopped and the witnesses brought there, but such a procedure would have entailed first securing defendant and his companion and then arranging transportation for the witnesses, possibly even a more time-consuming process than that chosen. At all events, given the time and distance involved this is a difference without constitutional significance. Thus, the detention, including movement of defendant, fit within a concept of reasonableness, and within the principles spelled out in Sharpe.

While agreeing with the Appellate Division’s conclusion here, we recognize that movement of a suspect even a short distance presents a greater intrusion than that involved in Sharpe; further, given this difference, it would be desirable to define outer boundaries to guide law enforcement authorities and reviewing courts in such situations. A fixed yardstick by which to measure the reasonableness of such detentions may be impossible, but by the same token a test of what was unreasonable in the circumstances, applying common sense, seems to us to be unduly elastic, furnish little guidance, and provide inadequate protection of individual rights. Moreover, such analysis, in its emphasis on law enforcement objectives, does not accord sufficient weight to the fact that the Terry exception is limited and should not swallow up the probable cause requirement of the State and Federal Constitutions (see, United States v Sharpe, 470 US, at pp 688-689 [Marshall, J., concurring], supra). A conclusion that irrespective of time and distances involved, and irrespective of the basis for the stop or the prolonged inquiry, a detention (involving transportation to the crime scene) would be lawful if it enabled law enforcement officers expeditiously to resolve reasonable suspicion, would not satisfy State constitutional standards even if it conceivably did meet Federal constitutional standards. It should therefore be made clear that, in the case before us, we uphold the scope of the police action not only because its purpose was to confirm or dispel reasonable suspicion quickly, but also because of the presence of the following particular factors: the authorities knew that a crime had actually been committed; the total period of detention was less than 10 minutes, the crime scene to which defendant was taken was very close, and eyewitnesses were there; and there is no proof of significantly less intrusive means available to accomplish the same purpose.

Finally, we note that the Appellate Division has added a gloss of "totality of the circumstances” and "the whole picture” to the test for determining both reasonable suspicion (see, e.g., 116 AD2d, at p 154) and the reasonableness of a detention (see, e.g., 116 AD2d, at pp 157, 159). Both those determinations are of constitutional dimension; they must rest on articulable facts, credible objective evidence, and the rational inferences that flow therefrom (see, e.g., People v De Bour, 40 NY2d 210, 223, supra; People v Cantor, 36 NY2d 106, 113, supra). In another context we have, on State constitutional grounds, rejected the ubiquitous "totality of the circumstances” test as inadequately serving the aims of predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens (see, People v Johnson, 66 NY2d 398, 407). For those same reasons, we reject this ingredient as part of the present formulations. The findings of reasonable suspicion and reasonable detention rested on sufficient foundation without this gloss.

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

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

Order affirmed.

      . If this police action is determined to be illegal, defendant seeks suppression of the resultant evidence under State (see, People v Johnson, 66 NY2d 398, 408, n 3) and Federal exclusionary rules.

      . This analysis is made as a matter of State law, including State constitutional law. We further conclude that defendant’s Federal constitutional rights — a minimum guarantee — are preserved.

      . See, ALI Model Code of Pre-Arraignment Procedure § 110.2 (5) (a) (ii), imposing such a requirement for questioning suspects during stops.

      . We have no need in this case to consider whether a maximum time limitation should be fixed. (See, United States v Sharpe, 470 US 675 [rejecting a per se limitation of 20 minutes], and ALI Model Code of Pre-Arraignment Procedure § 110.2 [5] [a] [ii] [recommending a ceiling of 20 minutes].)


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    In the Matter of Harold Konigsberg, Appellant, v Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Argued September 9, 1986;
    decided October 16, 1986

      POINTS OF COUNSEL

      Robert Selcov and David C. Leven for appellant.
    Petitioner reasonably described the records sought, enabling respondents to locate them. (Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825, 61 NY2d 958; Matter of Dunlea v Goldmark, 54 AD2d 446, 43 NY2d 754; Matter of Capital Newspapers v Whalen, 113 AD2d 217; Yeager v Drug Enforcement Admin., 678 F2d 315; McGehee v Central Intelligence Agency, 697 F2d 1095; Miller v United States Dept. of State, 779 F2d 1378; Matter of Doolan v Board of Coop. Educ. Servs., 48 NY2d 341.)

      Robert Abrams, Attorney-General (Frank K. Walsh, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
    The court below properly concluded that respondents were justified in requesting petitioner to amplify his request for “any and all” records pertaining to him before attempting to meet his request. (Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825, 61 NY2d 958; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Quirk v Evans, 116 Misc 2d 554; Marks v United States, 578 F2d 261; Sears v Gottschalk, 502 F2d 122; Ferri v Bell, 645 F2d 1213; Krohn v Department of Justice, 628 F2d 195; Mason v Callaway, 554 F2d 129, 434 US 877; Irons v Schuyler, 465 F2d 608, 409 US 1076.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The dispositive issue on this appeal is whether petitioner "reasonably described” the documents to which he sought access under the Freedom of Information Law (Public Officers Law art 6 [FOIL]). Because respondents, the Commissioner of the Department of Correctional Services and the superintendent of petitioner’s correctional facility, failed to establish that the demand was insufficient for purposes of enabling them to locate and identify the documents sought, we hold that petitioner’s request satisfied the statutory standard (Public Officers Law § 89 [3]).

Petitioner, an inmate in the custody of the Department of Correctional Services (the Department), sought, pursuant to article 6 of the Public Officers Law, "to inspect and review any and all files of records kept on me and my number of identification of the New York State Department of Correctional Services which is identification number 71-A-0224”. The inmate records coordinator asserted, in answer to this request, that petitioner "must 'reasonably identify’ ” the documents sought. Once petitioner identified the documents sought, according to the coordinator, the Department would determine whether denial of the request was warranted "under the provisions of * * * Public Officers Law, Section 87, Paragraph 2”. The coordinator then suggested several means by which petitioner could more closely tailor his request — by stating "the name of document (if known), or the type of content, the approximate date, etc.” The inmate records coordinator also furnished petitioner with the names of several folders that were "accessible” to him. Petitioner was not satisfied by this response and took an administrative appeal to the Department’s Office of Counsel, which upheld the decision denying him access on the ground that the "request failed to reasonably describe the records sought as required by Public Officers Law § 89 (3)”.

Petitioner commenced this article 78 proceeding to annul respondents’ determination denying his FOIL request. He also sought an order allowing him to inspect and review his institutional files except for those papers claimed to be exempt under FOIL, and requiring respondents to provide him with a list of documents that were withheld as exempt and to submit those documents to the court for an in camera inspection. Respondents’ answer alleged, in essence, that their determination could not be termed arbitrary or capricious in light of the "voluminous” files on petitioner and his failure to provide a reasonable description of the documents he sought. Their answer, moreover, alleged that "many” documents likely were exempt pursuant to Public Officers Law § 87 (2) (f) (records that if disclosed would endanger the life or safety of any person) and (g) (certain inter-agency or intra-agency materials).

In further support of their position, respondents submitted the affidavit of Berdelia Smith, the inmate records coordinator for the Department’s Eastern Correctional Facility. Ms. Smith averred that "most” of that facility’s inmate records contained material that was exempt from disclosure under FOIL and that it was necessary, in order to avoid "oppressive and disruptive administrative burdens and backlogs” that the person handling the FOIL request know "the specific records being sought”. Ms. Smith claimed that the records located at petitioner’s facility were "voluminous”. Yet, at the same time, she acknowledged that respondents had managed to gather "[approximately 95 percent of Petitioner’s institutional records — comprised of [his] central file, service unit folder, education folder, hospital records, grievance file, correspondence office file, and package room and visiting room documents”.

Special Term was persuaded by respondents’ arguments of administrative burden. The court dismissed the petition, finding that although respondents claimed the benefit of certain exemptions under FOIL, the agency was relieved from examining the documents it had thus far culled for the purposes of determining which documents were exempt until petitioner "reasonably described” those to which he sought access. The Appellate Division affirmed on the ground that respondents’ determination was not irrational in view of the requirements of FOIL that the records requested must be "reasonably described” and the Department’s own regulation (7 NYCRR 5.11) that mirrors the statutory language.

On this appeal, petitioner argues that he satisfied the requirement of FOIL that the records to which he sought access be "reasonably described” (Public Officers Law § 89 [3]). We agree with his contention and therefore reverse.

I.

In Matter of Farbman & Sons v New York City Health & Hosps. Corp. (62 NY2d 75), we held that demands under FOIL need not meet the stringent requirement under CPLR 3120 that documents be "specifically designated” (id., at pp 82-83). We recognized that the requirement of Public Officers Law § 89 (3) that documents be "reasonably described” was to enable the agency to locate the records in question (id., at p 83). Thus, we stated that the agency had to establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought” (id.; see, Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825, 826, mod on other grounds 61 NY2d 958) before denying a FOIL request for reasons of overbreadth.

We are satisfied that the present FOIL request meets the standard set forth in Farbman, and conclude, accordingly, that respondents cannot evade the broad disclosure provisions of that statute (see, Matter of Capital Newspapers v Burns, 67 NY2d 562, 565-566; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 79, supra) upon the naked allegation that the request will require review of thousands of records (Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 83, supra). The affidavit of Ms. Smith, the inmate records coordinator, demonstrates that respondents were able to identify the documents to which petitioner sought access — namely, his institutional records, including, by Ms. Smith’s own description, petitioner’s "central file, service unit folder, education folder, hospital records, grievance file, correspondence office file, and package room and visiting room documents”. Moreover, respondents were able to locate the documents petitioner had identified to the extent of amassing some 2,300 pages of record, which, Ms. Smith estimated, represented approximately 95% of petitioner’s institutional records. These admissions seem to contradict respondents’ protestations that they were not able to locate and identify the requested files. Accordingly, we conclude that respondents have failed to establish that the documents were not "reasonably described” (id.).

Respondents contend that in this instance they followed regulations promulgated under FOIL by the Committee on Open Government (21 NYCRR 1401.2 [a]; 1401.2 [b] [1]), which require that each agency designate one or more records access officers to "[a]ssist the requester in identifying requested records, if necessary”. This argument misses the point, however, that because the present FOIL request was framed sufficiently, respondents lacked authority to require greater specificity (see, Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825, 826, mod on other grounds 61 NY2d 958, supra).

We note that respondents’ own regulations require them to maintain "reasonably detailed” subject matter lists and a master index of all Department records (7 NYCRR 5.13), including "inmate records”, which are defined as those papers "that pertain * * * to an individual inmate” (7 NYCRR 5.5 [g]). Notably, respondents have failed to supply any proof whatsoever as to the nature — or even the existence — of their indexing system: whether the Department’s files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC § 552 (a) (3), may be presented where agency’s indexing system was such that "the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency”]).

Nor have respondents presented any other justification for their conclusion that the present request failed to "reasonably describe” the documents petitioner sought (e.g., Marks v United States, 578 F2d 261, 263 [requirement of reasonable description may relate to place of search where requester apparently sought "an open-ended search throughout all (FBI) field offices”]; Matter of Gannett Co. v James, 86 AD2d 744, 745 [request as framed required agency to search through its files and essentially to create a new document, citing Public Officers Law § 89 (3)], lv denied 56 NY2d 502).

II.

Respondents in this case sought to deny petitioner access to any potentially responsive documents in their possession on the ground that their files probably contained material that was exempt under FOIL, citing, in their answer, Public Officers Law § 87 (2) (f) and (g). The failure of a requester to "reasonably describe” desired records, however, is a ground for nondisclosure that is entirely separate from the exemption provisions under section 87 (2) of the Public Officers Law (see, Ferri v Bell, 645 F2d 1213, 1219-1220, on reh 671 F2d 769). As to the claimed exemptions, respondents bore the independent burden of establishing that the material fell squarely within the ambit of the statutory exemptions "by articulating a particularized and specific justification for denying access” (Matter of Capital Newspapers v Burns, 67 NY2d 562, 566, supra; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 80, supra). Thus, the broad allegation here that the files contained exempt material is insufficient to overcome the presumption that the records are open for inspection (see, Matter of Capital Newspapers v Burns, supra) and categorically to deny petitioner all access to the requested material (Matter of Dunlea v Goldmark, 54 AD2d 446, 449, affd 43 NY2d 754).

In sum, because respondents used the requirement that documents be "reasonably described” as a "device to withhold records” (National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 191, supra), we reverse the order of the Appellate Division, with costs, and grant the article 78 petition to the extent of remitting the matter to the New York State Department of Correctional Services for reconsideration of petitioner’s FOIL application in accordance with this opinion.

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

Order reversed, with costs, and petition granted to the extent of remitting the matter to Supreme Court, Albany County, with directions to remand to the New York State Department of Correctional Services for further proceedings in accordance with the opinion herein.

       Respondents urge that we examine Federal case law interpreting the Freedom of Information Act, 5 USC § 552 (FOIA), which has provided us with some guidance in deciding the application of "reasonably described” requirement of Public Officers Law § 89 (3) (see, Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825, 826 [citing Sears v Gottschalk, 502 F2d 122, cert denied 422 US 1056], mod on other grounds 61 NY2d 958; see generally, Matter of Fink v Lefkowitz, 47 NY2d 567, 572).
      But cases construing the similar FOIA requirement that a request for records must "reasonably describe!]” such records (5 USC § 552 [a] [3]) are entirely consistent with the result we reach here. Indeed, as the court noted in Sears v Gottschalk (502 F2d 122, 126, supra), "[i]f otherwise locatable * * * equitable considerations of the costs, in time and money of making records available for examination do not supply an excuse for non-productian”.


author: Titone, J. Kaye, J.

text:
    In the Matter of Richard Montero, Appellant, v John C. Lum, as Director of the Harlem Valley Center Division for Youth, et al., Respondents.
    Argued September 8, 1986;
    decided October 16, 1986

      POINTS OF COUNSEL

      Thomas D. Mahar, Jr., for appellant.
    I. Petitioner herein was a full-time permanent employee and could not be summarily terminated. (Matter of Kelly v State Civ. Serv. Commn., 21 AD2d 872; Matter of Wadsworth v Garnsey, 62 AD2d 1141; Matter of Glisson v Steisel, 96 AD2d 83; Matter of Marlow v Tully, 100 AD2d 786, 63 NY2d 918; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539; Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; Scutti Pontiac v Rund, 92 Misc 2d 881; Matter of Going v Kennedy, 5 AD2d 173.) II. Petitioner herein was not terminated by the appointing authority. (Matter of Simpson v Wolansky, 38 NY2d 391; Todriff v Shaw, 95 AD2d 775; Matter of Sullivan v Superintendent of Ins., 103 AD2d 914.) III. Petitioner was not a temporary employee at the time of his appointment on November 8, 1982. (Matter of O’Reilly v Grumet, 308 NY 351.) IV. The court below erroneously relied on Marlow v Tully. (Matter of Marlow v Tully, 100 AD2d 786, 63 NY2d 918.)

      Robert Abrams, Attorney-General (Christopher Keith Hall, O. Peter Sherwood, Kent L. Mardon and J. Gardner Ryan of counsel), for respondents.
    I. The Division for Youth properly dismissed appellant within one year of the date he became a probationary employee by passing a civil service examination. (Matter of Marlow v Tully, 100 AD2d 786, 63 NY2d 918; Halpin v Reile, 64 Misc 2d 1023; Matter of York v McGuire, 63 NY2d 760; Matter of Talamo v Murphy, 38 NY2d 637; Matter of Bonney v Dilworth, 99 AD2d 468; Matter of Albano v Kirby, 36 NY2d 526; People ex rel. Kastor v Kearny, 164 NY 64; People ex rel. Sweet v Lyman, 157 NY 368; Matter of Hilsenrad v Miller, 284 NY 445; Koso v Greene, 260 NY 491.) II. The Acting Facility Director had authority to remove appellant. (Matter of Marasco v Morse, 9 Misc 2d 296; Todriff v Shaw, 95 AD2d 775; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Kreppein v Downs, 272 App Div 452; People ex rel. Cline v Robb, 126 NY 180; People ex rel. Corrigan v Mayor of City of Brooklyn, 149 NY 215; People ex rel. Griffin v Lathrop, 142 NY 113; Matter of Beers v Nyquist, 72 Misc 2d 210; Matter of Lawson v Cornelius, 38 Misc 2d 431; Matter of Bonney v Dilworth, 99 AD2d 468.)
   OPINION OF THE COURT

Titone, J.

Following his termination without a hearing, petitioner commenced this article 78 proceeding seeking reinstatement to his former civil service position as a Youth Division Aide IV at the State Division for Youth Harlem Valley Secure Facility. The principal question presented in this proceeding is whether petitioner’s period of probationary service should be deemed to have commenced on the date he actually began working as a designated "temporary” employee or instead when he subsequently passed the required qualifying examination and was awarded permanent status. Because we conclude that a nonexempt temporary employee cannot attain permanent status and begin serving the probationary term without having first qualified for the position, we hold that the Appellate Division correctly measured petitioner’s probationary period from the date he passed his civil service examination.

Petitioner was initially appointed as a part-time Youth Division Aide IV, a noncompetitive position, on October 27, 1982. Effective November 8, 1982, he was appointed to the same position on a full-time basis. On both occasions, the personnel action forms signed by the Facility Director indicated that the appointments were "temporary”. Petitioner actually began working for the agency on the date of his initial part-time appointment, although he had not yet taken and passed the required physical examination and agility test.

After some delay, those tests were scheduled to be conducted on January 13, 1983. Petitioner passed both tests and on March 24, 1983 was notified of his permanent appointment to the position of Youth Division Aide IV. The appointment was made effective January 13, 1983 and was subject to successful completion of a period of probationary service ending January 12, 1984.

During his employment at the Harlem Valley Secure Facility, petitioner’s supervisors found his performance less than satisfactory because of his inability to "maintain a professional distance from the residents”. As a result of his supervisors’ final negative evaluation, petitioner was terminated, without a hearing, on January 6, 1984. The decision to terminate petitioner was made by James Clancy, who was acting as the Facility Director while John Lum, the appointed Director, was on vacation.

In May of 1984, petitioner commenced the present proceeding for reinstatement and back pay. He argued principally that his one-year probationary period had begun on October 27, 1982, the date of his initial appointment, and that having completed one year’s probationary service on October 26, 1983, he could not thereafter be terminated without a hearing. He also argued that his termination was unauthorized because Clancy, the facility’s Acting Director, had no power to remove him.

Special Term agreed in principle with petitioner’s arguments, although it cited November 8, 1982, the date of petitioner’s full-time appointment, as the point at which his probationary period commenced. Noting that the two-month and five-day delay in scheduling petitioner’s tests was attributable solely to the employing agency, the court concluded that the agency should not be permitted to defer the effective date of petitioner’s permanent appointment until he had passed the tests because to do so would, in effect, be to expand the one-year probationary period authorized by Civil Service Law §63. In so ruling, the court found it significant that after petitioner had been hired the agency had recognized that Youth Division Aides were being "disadvantaged by the prolonged probationary status” occasioned by the need to schedule a qualifying physical examination and, as a consequence, had promulgated a prospective rule authorizing its personnel office to adjust the affected employees’ probationary periods accordingly. Additionally, the court rejected respondents’ contention that petitioner’s status was temporary, rather than permanent, before he had passed the examination, since, in its view, respondents had not satisfactorily established that a valid temporary appointment was made within the meaning of Civil Service Law § 64. Consequently, Special Term found that by January 6, 1984 petitioner was a permanent, nonprobationary employee who could not be terminated without a hearing. Accordingly, the court ordered him reinstated with back pay.

On appeal to the Appellate Division, the judgment awarding reinstatement and back pay was reversed and the petition dismissed. The Appellate Division concluded that petitioner could not have attained permanent status before January 13, 1983, the date he passed his qualifying examinations, and that his previous temporary appointment "could not have ripened into a permanent appointment by that time”. Thus, the Appellate Division held, petitioner’s probationary period had not begun until January 13, 1983, and the agency was within its rights when it terminated him without a hearing less than a year from that date. We agree.

Under Civil Service Law §63 (1), the State Civil Service Commission is authorized to provide for a period of probationary service, during which the employee may be summarily removed. The maximum probationary period for employees in petitioner’s position is one year, and its commencement is triggered by the employee’s "original permanent appointment” (4 NYCRR 4.5 [a] [1]; see, Civil Service Law § 63 [1]). The problem that disturbed the trial court here was the possibility of an appointing authority arbitrarily expanding an employee’s probationary period by first designating the employee temporary and then postponing the qualifying examination that would lead to "original permanent appointment”. Whether such a problem may be remedied by relating an employee’s permanent status back to his initial temporary appointment is the question we now address.

We begin, as we must, with NY Constitution, article V, § 6, which furnishes the guiding principle for all civil service appointments. That provision states that "[appointments and promotions in the civil service of the state and all of the civil divisions thereof * * * shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive”. The purpose of this provision was to replace the spoils system with a system of merit selection and to protect the public as well as the individual employee (Wood v City of New York, 274 NY 155, 161; Matter of Social Investigator Eligibles Assn. v Taylor, 268 NY 233, 237).

Although the constitutional mandate expressed in article V, § 6 has been characterized as self-executing (see, People ex rel. McClelland v Roberts, 148 NY 360), the Legislature has enacted a specific statutory scheme for its implementation. Under sections 44, 50 and 61 of the Civil Service Law, open competitive examinations must be held for "all positions for which it is practicable to determine the merit and fitness of applicants by competitive examination”. Even in instances where a competitive examination is not "practicable”, appointments to classified civil service positions outside the exempt and labor classes may be made only "after such non-competitive examination as is prescribed by the state civil service department or municipal commission having jurisdiction” (Civil Service Law § 42 [1]). The Legislature has also made provision for temporary appointments without examinations where the need is "urgent and important”, but has expressly limited the duration of such appointments to three months, except in certain narrowly defined situations (Civil Service Law § 64). Such stringent limitations are necessary to ensure adherence to the clear constitutional preference for merit selection (see, Matter of O’Reilly v Grumet, 308 NY 351).

While it would have been preferable for respondents to have explained in the trial court why they had an "urgent and important” need to hire petitioner on a temporary basis, we need not consider here whether his temporary appointment, which lasted less than three months, was valid under section 64. Whether petitioner’s initial appointment as a temporary was proper or improper, petitioner was not, and could not have been, appointed to a permanent position in the noncompetitive class, since he had not yet taken and passed the examinations prescribed for that position at the time of his initial appointment (see, Civil Service Law § 42 [1]; New York State Division for Youth, Change in Youth Division Aide Series Qualifications, Dec. 10, 1981). Indeed, because he had not passed the examination deemed "practicable” by the appointing authority, his permanent appointment would have violated article V, § 6 of the Constitution.

Furthermore, it is because of the inviolate constitutional mandate that we cannot by judicial fiat convert what was necessarily a temporary appointment into a permanent one (see, Amico v Erie County Legislature, 36 AD2d 415, 424, affd 30 NY2d 729). It is well settled that even an unlawfully extended period of temporary service cannot ripen into a permanent appointment (e.g., Matter of Board of Educ. v Nyquist, 31 NY2d 468; Matter of Hilsenrad v Miller, 284 NY 445; Matter of Agress v Board of Educ., 86 AD2d 869, affd 57 NY2d 755). Nor can an appointee’s successful completion of the qualifying examination after an initial temporary appointment operate retroactively to convert that temporary appointment into a permanent one ab initia (cf. Matter of Marasco v Morse, 9 Misc 2d 296, affd 263 App Div 1063, affd 289 NY 768).

This court has previously held that a person appointed permanently after successful completion of a civil service examination acquires no additional status or service credit by virtue of his prior incumbency in the position as a temporary appointee (Koso v Greene, 260 NY 491). Even more to the point, we recently upheld the termination of an employee whose status was deemed converted from temporary to permanent under a Civil Service Department rule only after he had submitted a required form (Matter of Marlow v Tully, 63 NY2d 918). Although in Marlow we explicitly addressed only the propriety of the rule itself, implicit in our decision upholding the employee’s termination was our recognition that subsequent fulfillment of the requirements for permanent status cannot alter an employee’s initial status as a temporary.

We note that we can perceive no imperative policy considerations warranting a reexamination of the time-tested rule that temporary appointments, however invalid, cannot ripen into permanent ones. To be sure, agencies may from time to time abuse their authority to make temporary appointments under Civil Service Law §64 and may even, in extreme cases, attempt to use that authority to revive precisely the type of croneyism that article V, § 6 of the Constitution was adopted to prevent. However, deeming an improperly appointed temporary employee to be a permanent employee is not an appropriate or even an effectual remedy for such abuses, since doing so would merely perpetuate the initial wrong. Moreover, a more direct remedy exists in the form of an action to enjoin a public employer from making recurring and extended temporary appointments without good cause in violation of the Civil Service Law (see, Matter of O’Reilly v Grumet, supra).

Finally, although we recognize that the rules governing temporary appointments may lead to harsh results in particular cases, we cannot allow that consideration to override the firm public policy of merit selection set forth in the Constitution. We would also note that employees who accept temporary appointments obtain a distinct benefit: employment before the prescribed requirements for the position are met. They are thus in a more advantageous position than they would have been had the appointing agency simply delayed their appointments until a qualifying examination could be scheduled. Accordingly, any perceived unfairness resulting from prolonged untenured status may well be illusory.

Since we conclude that petitioner was not and could not have been appointed to a permanent position until he had passed his physical examination and agility test, as he did on January 13, 1983, it follows that his one-year period of probationary service could not have been completed before a year from that date (Civil Service Law § 63 [1]; 4 NYCRR 4.5 [a] [1]). Consequently, his employer, the State Division for Youth, was entitled to terminate him without a hearing during that one-year period, provided it did so in good faith and without a constitutionally impermissible motive (see, Matter of York v McGuire, 63 NY2d 760; Matter of Talamo v Murphy, 38 NY2d 637).

It remains for us to consider petitioner’s alternative contention that his termination was invalid because the Acting Facility Director who made the dismissal decision, James Clancy, had no power to do so. The contention rests on the assumption that the State-wide Director of the Division, Peter Winfield, had not, in fact, specifically delegated his statutory power to discharge employees to the local Facility Directors and that, even if he had, the Facility Director in this case, John Lum, had not and could not have delegated such authority to James Clancy, his Acting Director. Neither of these assumptions withstand scrutiny.

Petitioner acknowledges that the State-wide Director, Win-field, had the power to hire and fire, as well as the authority to delegate those powers to subordinates (see, Executive Law § 500 [1], [2]). He argues only that the provision in the Division’s Policy and Procedure Manual authorizing Facility Directors to appoint employees at petitioner’s grade level was not an effective delegation of the authority to terminate such employees. This argument is unpersuasive, however, because the provision carried with it an implicit delegation to Facility Director Lum of the power to remove.

As a public officer, Lum, in turn, had the authority to designate a deputy to act and exercise all of his powers in his absence (Public Officers Law § 9). The uncontroverted affidavits submitted at Special Term unquestionably establish that Lum, in fact, had designated James Clancy, his deputy, to act in his absence. Moreover, there is no indication that Clancy had assumed the position of Acting Director without proper authorization from his principal.

In sum, petitioner was validly removed from his position as a Youth Aide IV on January 6, 1984. The Acting Director who made the decision was properly vested with the authority to remove him, and a hearing was unnecessary because the decision was made during petitioner’s probationary period. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Kaye, J.

(concurring). I agree that, having failed to satisfy the requirements for the position before January 13, 1983, petitioner cannot be considered a permanent employee; nor can temporary employment ripen into permanent employment. Moreover, petitioner was advised by memorandum dated April 27, 1983 of his appointment, with his probationary period to end January 12, 1984, and evidenced no disagreement or protest until after his termination more than a year later. His article 78 petition was therefore properly dismissed.

The purpose of this separate writing is to underscore my disapproval of the practice engaged in here, which is, by misuse of the category of “temporary” appointments, to extend the probationary period provided for in the Civil Service Law. Nothing in the transaction between the parties indicates that petitioner’s full-time appointment in November 1982 was to be in any sense temporary. He never accepted it as such. Surely nothing in the nature of that employment suggests that it was for a limited duration, or to fill a special need, or anything but petitioner’s full-time, all-time job. Civil Service Law § 64 defines the limited circumstances under which such an appointment may be made (see also, Matter of O’Reilly v Grumet, 308 NY 351), none of them apparent here. The abuse is particularly evident because the cause of the delay — a physical test, not a competitive examination — was wholly of respondent’s own making (cf. Matter of Marlow v Tully, 63 NY2d 918, cert denied 472 US 1010). By itself delaying the examination more than two months, respondent succeeded in extending petitioner’s probationary period beyond the maximum provided by law. This was surely no favor to petitioner.

While respondent has recognized the unfairness of the situation and has amended its own rules to prevent a recurrence, it should be clear that this court in no way sanctions a practice whereby "temporary” appointments become a device for enlarging the probationary periods provided by law.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Hancock, Jr., concur with Judge Titone; Judge Kaye concurs in a separate concurring opinion in which Judge Meyer also concurs.

Order affirmed, with costs.

      . Since respondents did not interpose the Statute of Limitations for article 78 proceedings as an affirmative defense, we do not consider whether the proceeding was timely commenced (see, Matter of Pollack v Bahou, 102 AD2d 286, 294, appeal dismissed 63 NY2d 773).

      . Inasmuch as this rule was applicable only to employees hired after August 25,1983, petitioner was not able to avail himself of its benefits.

      . Special Term based its conclusion that petitioner was entitled to a hearing on the terms of the governing collective bargaining agreement rather than on Civil Service Law § 75 which, by its terms, is inapplicable to employees in the noncompetitive class with less than five years’ tenure (see, Civil Service Law § 75 [1]). We thus have no occasion to consider here the extent to which section 75 or the due process clauses of the State and Federal Constitutions protect a noncompetitive civil service employee who has completed the probationary period but has served for less than five years in the position (see, Matter of Voorhis v Warwick Val. Cent. School Dist., 92 AD2d 571).

      . This court has recognized an exception to the rule in cases where an employee, although designated temporary, was actually appointed from a list compiled from the results of a competitive examination and was continued in the position for an extended period (Matter of Healey v Bazinet, 291 NY 430; see also, Matter of Battaglia v Morton, 272 App Div 372, affd 299 NY 746). Such an exception does not run afoul of the constitutional requirement of merit selection because it confers permanent status only on those who have actually qualified in accordance with the constitutional strictures. Since petitioner did not so qualify on the date of his initial "temporary” appointment, however, this exception does not apply to him.

      . This rule applies to employees holding temporary noncompetitive positions who simply pass the required examination, as well as to those holding temporary competitive positions whose score on the examination places them among the top three applicants (cf. Matter of Wadsworth v Garnsey, 62 AD2d 1141).

      . In holding that petitioner may gain no additional civil service status by virtue of his temporary appointment, we do not intend to convey a lax or tolerant attitude toward the abuse of temporary appointments, including those made for a period of less than three months. The plain language of Civil Service Law § 64 (1) requires public employers to justify such appointments in terms of an "urgent and important” need. This court has not yet had the opportunity to consider the degree of "urgency and importance” that is required for a legitimate temporary appointment of less than three months’ duration, and we need not do so here.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Jorge Pons, Appellant.
    Decided October 23, 1986

      APPEARANCES OF COUNSEL

      David P. Friedman and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Marianne Karas of counsel), for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

Justification based on self-defense (Penal Law § 35.15) pertains only to the use of physical force (see, People v McManus, 67 NY2d 541). It does not apply to a crime based on the possession of a weapon, even though an element of the crime is that defendant possessed the weapon with the intent to use it unlawfully against another. Here, defendant’s conviction for criminal possession of a weapon in the second degree (Penal Law § 265.03) should be affirmed since the court properly refused to charge justification (Penal Law § 35.15) as a defense to that crime.

Defendant’s conviction arises out of a shooting which occurred after defendant had become embroiled in an argument at a party in which threats of violence were exchanged. Defendant left the party and returned with a gun wrapped in a towel. There was testimony that the victim returned with a sawed-off shotgun. At least one witness testified that the victim pointed the shotgun at defendant first. Ultimately, five or six shots were fired from defendant’s gun, two of them striking the victim who later died of the gunshot wounds.

Defendant was indicted for murder in the second degree and criminal possession of a weapon in the second degree. The court submitted both these charges to the jury as well as the lesser included offenses of first degree manslaughter and criminal possession of a weapon in the third degree. Defendant was acquitted of all charges except criminal possession of a weapon in the second degree. At trial, the court instructed the jury on justification (Penal Law § 35.15) with respect to the murder and manslaughter charges but, relying on People v Almodovar (62 NY2d 126), refused the request as to second and third degree possession. It declined to follow People v Lewis (116 AD2d 16) and People v Morris (109 AD2d 413, 417) which hold that justification is available to negate the element of "intent to use unlawfully” in criminal possession of a weapon in the second degree. For reasons appearing hereafter, we conclude that the refusal of the justification charge under Penal Law § 35.15 was proper (see, People v Khan, 113 AD2d 773, 774; People v Wynn, 108 AD2d 768).

In People v Almodovar (62 NY2d 126, supra), where defendant was chárged with counts of murder, assault and criminal possession of a weapon, we held that the court correctly refused to charge justification as a defense to criminal possession of a weapon, second degree. There, defendant claimed that he came into possession of the weapon by wresting control of it from the victim who had attacked him with a gun and a screwdriver. We concluded that "the only charge defendant was entitled to on the [possession] count of the indictment was temporary innocent possession” (id., at p 130) and that any benefit "he was entitled to because of the claim of self-defense pertained to the use of a weapon and he received that when the court charged justification in connection with the counts of attempted murder and assault” (id., at pp 130-131). Emphasizing that crimes involving possession of a weapon are distinct from those involving its use, we observed that once "the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime” (id., at p 130).

Defendant would have us distinguish Almodovar because, unlike the defendant there, who asserted the defense of temporary possession, he does not claim that his possession of the gun was lawful from its very inception. On the contrary, defendant’s only contention is that he lacked "intent to use [the weapon] unlawfully against another” (Penal Law § 265.03 [emphasis added]). In Almodovar, defendant points out, the issue turned on the lawfulness of defendant’s taking possession of the weapon, not on his subsequent intent to use it unlawfully. Thus, he argues, the court in Almodovar did not decide the precise question here: whether justification based on self-defense is a proper defense to the intent element of criminal possession in the second degree. While defendant concedes that justification is not a defense to the lesser crime of criminal possession in the third degree, he maintains that he should have had the benefit of the charge as bearing not only on his use of the weapon in the murder and manslaughter counts but also on his intent to use it in second degree criminal possession.

Defendant’s argument proceeds on an erroneous conception of the fundamental basis for the justification defense found in Penal Law § 35.15. Contrary to his contention, justification does not negate a particular element of the crime charged. As we observed in McManus, justification "affirmatively permits the use of force under certain circumstances [citations omitted]. Pursuant to Penal Law § 35.15, a person fmay’ use physical force to defend himself or a third person, and his conduct, which would otherwise constitute an offense, is simply not criminal (see, People v Padgett, 60 NY2d 142, 145; cf. People v Sullivan, 7 NY 396, 400). The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful” (People v McManus, supra, at pp 545-546 [emphasis added]). Moreover, it is evident from the wording of the statute (Penal Law § 35.15), its title ("Justification; use of physical force in defense of a person”) and from our decisions that it is only the "use of physical force” which, under the circumstances specified in the statute, is lawful (see, People v McManus, supra, at pp 545, 546; see also, People v Magliato, 68 NY2d 24, 28-30). We hold, therefore, that because possession of a weapon does not involve the use of physical force (see, People v Almodovar, supra), there are no circumstances when justification (Penal Law § 35.15) can be a defense to the crime of criminal possession of a weapon.

Notwithstanding the foregoing, defendant maintains, citing People v Lewis (116 AD2d 16, supra) and People v Morris (109 AD2d 413, 417, supra), that the statute should apply to "intent to use” the weapon as well as its actual "use”. Because there was sufficient evidence of self-defense to warrant a justification charge on the murder and manslaughter counts based on defendant’s use of physical force in discharging the weapon, he contends that the court should also have given the charge on the criminal possession count as bearing on his intention to use physical force in the period prior to the actual shooting. The contention is clearly flawed. First, intent to use and use of force are not the same, and justification, by the very words of the statute (Penal Law § 35.15), is limited to the latter. Second, it does not follow that because defendant was justified in the actual. shooting of the weapon under the particular circumstances existing at that moment, he lacked the intent to use the weapon unlawfully during the continuum of time that he possessed it prior to the shooting. Whether the People established beyond a reasonable doubt that defendant possessed the weapon during that period "with intent to use [it] unlawfully against another” (Penal Law § 265.03) was a question for the jury to determine based on the court’s charge pertaining to the elements of the crime and to the proof necessary to establish unlawful intent (see, People v Evans, 106 AD2d 527).

Therefore, since there are no other issues presented for review, the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Meyer, Simons, Alexander and Titone concur; Judge Kaye taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed.

       Defendant did not request, and the record would not support, a charge under Penal Law § 35.05. Nor did defendant claim on the trial that his gun was licensed or otherwise exempt under Penal Law § 265.20.


author: Chief Judge Wachtler. Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Curtis Wilkins, Also Known as Curtis Williams, Appellant.
    Argued September 11, 1986;
    decided October 21, 1986

      POINTS OF COUNSEL

      Michael A. Gross and Philip L. Weinstein for appellant.
    The integrity of both Grand Juries considering charges against appellant was impaired when the prosecutor unilaterally withdrew the case from the "activist” Grand Jury without the consent of the grand jurors to the withdrawal, and presented the case to another Grand Jury without judicial authorization even though there was a strong possibility that the first Grand Jury would have dismissed charges if it had been permitted to vote. (People v Pelchat, 62 NY2d 97; People v Calbud, Inc., 49 NY2d 389; People v Iannone, 45 NY2d 589; People v Di Falco, 44 NY2d 482; Mooney v Cahn, 79 Misc 2d 703; People v DeLio, 75 Misc 2d 711; Matter of Morgenthau v Roberts, 104 AD2d 767, 65 NY2d 749; People ex rel. Flinn v Barr, 259 NY 104; United States v Lovasco, 431 US 783; People v Valles, 62 NY2d 36.)

      Robert M. Morgenthau, District Attorney (Susan Corkery and Amyjane Rettew of counsel), for respondent.
    The hearing court correctly denied defendant’s motion to dismiss the indictment because, by withdrawing the case and presenting it to another Grand Jury convened later, the People acted legally and in good faith, causing defendant no conceivable prejudice. (United States v Lovasco, 431 US 783; People v Di Falco, 44 NY2d 482; People ex rel. Flinn v Barr, 259 NY 104; People v Benson, 208 Misc 138; Matter of Colf v Serra, 58 NY2d 837; People v Nelson, 298 NY 272; People v Westbrook, 79 Misc 2d 902; People v Kelly, 140 Misc 377; People v Davis, 114 Misc 2d 645.)
   OPINION OF THE COURT

Chief Judge Wachtler.

This appeal requires us to determine whether a prosecutor may withdraw a case from the Grand Jury after presentation of the evidence, and resubmit the case to a second Grand Jury without the consent of either the first Grand Jury or the court which impaneled it. We conclude that such withdrawal is the equivalent of a dismissal by the first Grand Jury, and that the prosecution may only resubmit the charges with the consent of the court. We, therefore, reverse the order of the Appellate Division and dismiss the indictment with leave to the District Attorney to apply for an order permitting resubmission of the charges to another Grand Jury.

The defendant was charged with murder in the second degree after fatally shooting his victim during a dispute. His case was presented to a Grand Jury, but it was withdrawn before a vote on whether to issue an indictment. Presentation of the case to a second Grand Jury resulted in an indictment charging the defendant with murder in the second degree. A trial on that charge ended in a mistrial when the jury announced it could not reach a verdict.

During that trial, defense counsel learned of the prosecutor’s withdrawal and resubmission of the case. After the mistrial, the defendant moved for an evidentiary hearing on the circumstances of the resubmission. Granting the motion, the court concluded that there was no statute controlling whether the People could "abort a Grand Jury presentation in progress, and under what circumstances * * * Therefore, in the opinion of the court, each situation must be examined individually to determine whether the prosecution’s conduct was proper within the facts of that case or whether it was merely a pretext to circumvent the function of the Grand Jury.” (95 Misc 2d 737, 739.)

The hearing court concluded that the prosecutor acted in good faith in withdrawing the matter from the first Grand Jury, based on the following findings: The main reason the prosecutor withdrew the matter was his inability to produce two witnesses the Grand Jury requested, the arresting officer and a witness then known only as Freída. The detective assigned to locate her could not find Freída, and the Appearance Control Board (the Police Department’s liaison with the. District Attorney’s office) informed the prosecutor that the arresting officer was either on terminal leave or vacation and in any event could not be produced. Meanwhile, the prosecutor was directed to proceed to trial on another matter. On the last day of the first Grand Jury’s term, therefore, he asked another assistant to withdraw the case. The withdrawal was without the consent of the Grand Jury or the court.

After the mistrial, the defendant was tried a second time and convicted upon a jury verdict of first degree manslaughter. Sentence was imposed, and the Appellate Division affirmed the conviction, without opinion. The sole ground tendered on this appeal in support of the defendant’s claim for reversal is the withdrawal and resubmission of the charges against him at the Grand Jury level. Were the subjective good faith of the prosecutor in withdrawing and resubmitting the charges against the defendant the dispositive issue on this appeal, we would summarily affirm. The undisturbed finding of the hearing court that the prosecutor acted in good faith is beyond the review powers of this court if, as here, it is supported by evidence in the record (see, e.g., People v Harrison, 57 NY2d 470, 477).

That the prosecutor acted in good faith does not resolve the issue whether he had the legal authority to act, however. At common law a prosecutor could resubmit charges without limitation to successive Grand Juries until one voted an indictment (People ex rel. Flinn v Barr, 259 NY 104, 107-108; Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.75, pp 342, 343). However, just as the Grand Jury serves to insulate citizens from prosecutorial excesses (People v Pelchat, 62 NY2d 97, 104; People v Iannone, 45 NY2d 589, 594), the Legislature recognized a need to insulate the Grand Jury process from the excesses which would flow from domination by a prosecutor (see, People v Di Falco, 44 NY2d 482, 487). The result was section 270 of the former Code of Criminal Procedure, which prohibited the resubmission of dismissed charges without leave of court (People ex rel. Flinn v Barr, supra, at p 108). It became further necessary to curb the power of the courts, as well, which the Legislature did by limiting the number of authorized resubmissions to one (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.75, p 343). Thus, if the withdrawal of this case from the first Grand Jury is the equivalent of a dismissal by that Grand Jury of the charges against the defendant, the prosecutor could not lawfully resubmit the matter without leave of the court.

The comprehensive statutory scheme regulating Grand Jury proceedings does not contemplate the termination of deliberations without some action by the Grand Jury. Thus, CPL 190.60 gives the Grand Jury a limited range of dispositions after hearing and examining evidence, including either indicting the defendant or dismissing the charges. In this case, the required concurrence of 12 grand jurors to a dismissal (CPL 190.25 [l]) was not obtained because the question was not put to a vote.

Generally once a Grand Jury hears evidence in a case presented to it, the key factor in determining whether an unauthorized withdrawal of the case must be treated as a dismissal is the extent to which the Grand Jury considered the evidence and the charge. Thus, where a particular charge had not even been presented to a Grand Jury considering another charge against the defendant, this court held the first charge could not be considered dismissed: "Before a grand jury may be said to have acted upon a charge, there must be some indication that it knew about and considered the charge” (People v Nelson, 298 NY 272, 276; see also, People ex rel. Raimondi v Jackson, 277 App Div 924, lv denied 301 NY 816). However, the presentation need not be complete for consideration equivalent to a dismissal to occur. In Mooney v Cahn (79 Misc 2d 703), for example, the prosecutor failed to direct the Grand Jury to act on the evidence he had presented; nonetheless, the court declined to allow the District Attorney to continue the prosecutions (79 Misc 2d, at p 706). In Matter of McGinley v Hynes (75 AD2d 897, revd on other grounds 51 NY2d 116, cert denied 450 US 918), the court held there had been the equivalent of a dismissal on facts nearly identical to those in the case now before us — withdrawal of a case near the end of the presentation of the evidence and before giving either a charge or an instruction to deliberate.

In the case before us, the first presentation was, as far as the prosecution was concerned, complete. Contrary to the assertions of the dissent, the District Attorney need not have formally rested and charged the Grand Jury before that body may be held to have considered and acted upon the charge. Indeed, in Matter of McGinley v Hynes (75 AD2d 897, supra), it was clearly held that the Grand Jury had heard and considered enough to render the withdrawal of the case equivalent to a dismissal, even though the prosecutor conceded that he had not finished presenting his case and certainly could not at that point have formally instructed the Grand Jury on the law. Moreover, the Appellate Division in McGinley, while concluding that the prosecutor’s unauthorized resubmission to a second Grand Jury was improper, found that his estimate to the first Grand Jury that he had only a few more witnesses to present was "either erroneous or misleading”, which is hardly an explicit finding of bad faith.

Here, the presentation had progressed further than that in McGinley — as far as the prosecutor was concerned, all witnesses had testified, and all that was left was to instruct the Grand Jury on the law. This progress was what compelled the court in McGinley, and what compels us in this case, to hold that the prosecutor’s unilateral withdrawal so late in the game must be deemed a dismissal, regardless of the good faith of the withdrawal. Such conclusion is in keeping with the "beneficent purpose” of CPL 190.75 (3), which "must be interpreted fairly to carry out the policy which it was enacted to accomplish” and which "should not be nullified by a narrow technical construction which would * * * destroy its spirit” (People ex rel. Flinn v Barr, 259 NY, at pp 109, 108, supra).

The dissent and the People can cite no authority which directly supports the contention that the District Attorney possesses inherent power to withdraw a case from Grand Jury consideration. This lack of any judicial or legislative acknowledgement of authority is understandable. An explicit recognition of such power by this court would furnish the prosecutor the means of defeating CPL 190.75 (3) in almost every case by withdrawing all but "open and shut” cases and resubmitting them after further preparation or a more compliant Grand Jury is impaneled. Moreover, it would make a mockery of the legislative command that the District Attorney serve as legal advisor to the Grand Jury (CPL 190.25 [6]), because it would allow the prosecutor to circumvent the statutory command that an "affirmative official action or decision” of the Grand Jury requires the concurrence of 12 of its members, not the sole whim, or even considered judgment, of the prosecutor. As legal advisor to the Grand Jury, the District Attorney should also have known that the Legislature has provided a solution for the dilemma that occurs when a presentation has not been completed by the end of the Grand Jury’s term: extension of the term, as authorized by CPL 190.15 (1), upon a declaration of need by both the prosecutor and the Grand Jury. Indeed, the term of the first Grand Jury to which this defendant’s case was presented was extended as to another matter, indicating both the prosecutor’s knowledge of this option and its feasibility.

If, as the dissent suggests, there are reasons which routinely and legitimately require withdrawal or interruption of a Grand Jury presentation, such as illness or vacation of a witness, then surely the Grand Jury involved would understand and agree to an extension of its term. Even if it did not, the prosecutor would always have the fallback of obtaining court approval for resubmission, which, if the reasons tendered are indeed legitimate, should be granted. The dissent would have dismissal depend on a finding of prosecutorial bad faith. That, in turn, would require, in every case, a hearing with its attendant cost and delay. On the other hand, a request to the Grand Jury to extend its term can be made informally by merely asking for a vote on the question, and if 12 grand jurors do not concur, leave to resubmit could be sought in most instances by a motion, which the court could grant or deny on the papers alone.

The resubmission of this defendant’s case to a second Grand Jury without leave of court, because it violated the proscription of CPL 190.75 (3), constituted a failure to conform to the requirements of article 190 "to such degree that the integrity thereof is impaired” (cf. People ex rel. Flinn v Barr, supra). Prejudice to the defendant may have resulted both because the first Grand Jury, had it been given the opportunity to act pursuant to statute, may very well have dismissed the charges, given the lack of testimony from anyone who had actually seen the defendant shoot at and hit the victim, and because, had leave been sought to resubmit the charges, it may have been denied (see, Matter of McGinley v Hynes, supra).' Under these circumstances, notwithstanding the permissive language in CPL 210.20 (1) (c), the denial of the defendant’s motion constituted an abuse of discretion as a matter of law.

Accordingly, we reverse the order of the Appellate Division affirming the defendant’s conviction and dismiss the indictment. Because our reversal vacates the second, unauthorized Grand Jury presentation, we grant leave to the District Attorney to apply for an order permitting resubmission of the charges to another Grand Jury.

Hancock, Jr., J.

(dissenting). A Grand Jury indicted defendant for murder in the second degree. A petit jury could not agree whether defendant was guilty of this charge but, in a second trial, another jury convicted him of first degree manslaughter. The majority now reverses this conviction under CPL 210.35 (5) (majority opn, at p 276, n 6) because the District Attorney, concededly acting in good faith, withdrew the matter on the last day of the Grand Jury term (before deliberations had commenced or the testimony had been completed) in view of the unavailability of two witnesses which the Grand Jury had requested him to call. We find no statutory authority for this result or precedent in case law.

Under the Criminal Procedure Law, the court "may, upon motion of the defendant, dismiss” an indictment if the "grand jury proceeding was defective, within the meaning of section 210.35” (CPL 210.20 [1] [c]; emphasis added). As provided by the statute, a Grand Jury proceeding is "defective” under CPL 210.20 (1) (c) when the proceeding "fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35 [5]; emphasis added). Despite the lack of any showing in the record of impairment of the process or possible prejudice to the defendant, the majority has concluded that, as a matter of law, there was a nonconformance with article 190 "to such degree” as to require dismissal under CPL 210.35 (5).

The particular noncompliance with article 190 ("The Grand Jury and its Proceedings”) which is held to be sufficient to mandate dismissal under CPL 210.20 (1) (c) and CPL 210.35 (5) does not involve misconduct of the District Attorney or any irregularity or occurrence which might have affected the integrity of the proceedings themselves, such as, for example, the presence of unauthorized persons before the Grand Jury (see, CPL 190.25 [3]; People v Beauvais, 98 AD2d 897), the presentation of evidence by an unauthorized prosecutor (see, People v Di Falco, 44 NY2d 482), a violation of the requirement of secrecy (see, CPL 190.25 [4]), or proceeding in the presence of fewer than 16 grand jurors (see, CPL 190.25 [1]). Indeed, there was no such misconduct or irregularity. The hearing court expressly found no "interference by the prosecutor with the Grand Jury’s functions, duties or integrity” and rejected any finding that the motive for the withdrawal had been the desire to remove the case from an "active” Grand Jury to one which would be "more pliant”. It also found, contrary to the contentions of the majority and defendant, that the prosecutor, when the case was withdrawn, had not completed the presentation of all of the evidence to the Grand Jury. As the majority has noted, these findings are supported by evidence in the record and are beyond our review (majority opn, at pp 272-273). Rather than any noncompliance with article 190 pertaining to the actual proceedings before the Grand Jury, the sole reason for invoking CPL 210.35 (5) here is the failure of the District Attorney to seek leave of the court for resubmission — an act which is required by article 190 only after a case has been dismissed by the Grand Jury, something that did not occur here.

It is clear that in resubmitting the matter without court permission there was no per se violation of CPL 190.75. By the very terms of CPL 190.75 (3), the dismissal (referred to in the phrase "[w]hen a charge has been so dismissed”) which requires permission for resubmission is the dismissal by the Grand Jury under CPL 190.75 (1) when there is no "legally sufficient” evidence (subd [a]) or when "the grand jury is not satisfied that there is reasonable cause to believe” (subd [b]) that the defendant committed the crime charged. Clearly, a dismissal under the statute can only result from action by the Grand Jury. An action of the prosecutor cannot be deemed an action of the Grand Jury. Moreover, it has been held that to constitute a dismissal by the Grand Jury, the Grand Jury must have considered and acted upon the charge (see, People v Nelson, 298 NY 272-276; People ex rel. Raimondi v Jackson, 277 App Div 927, lv denied 301 NY 816). Because deliberations had not commenced and, indeed, the testimony had not been completed, there is no basis for concluding that the Grand Jury had, in reality, acted upon and dismissed the charge under CPL 190.75 and 190.60 (compare, e.g., People v DeLio, 75 Misc 2d 711, where there was no question that the Grand Jury had considered and "disposed of’ the charge, and Mooney v Cahn, 79 Misc 2d 703, 705 [majority opn, at p 274], where it was "clear that the Grand Jury heard and considered all of the evidence regarding the charges”).

Although the District Attorney’s failure to obtain court approval before resubmission to another Grand Jury cannot, under any construction of CPL 190.60 or 190.75, be considered an action of dismissal by the first Grand Jury, the majority, nevertheless, holds that this omission should be given "the effect of a dismissal”. With the necessary "dismissal” thus created for the purpose of the requirement of court authorization for resubmission under CPL 190.75, the District Attorney’s subsequent conduct in resubmitting the matter without such authorization is held to be nonconformance with article 190 "to such degree” as to render the proceedings defective under CPL 210.35 (5). The single case cited as authority for this proposition is Matter of McGinley v Hynes (75 AD2d 897, revd on other grounds 51 NY2d 116, cert denied 450 US 918) where the court concluded from the record before it that the "withdrawal of the case from the September 1978 Grand Jury took place because of the possibility that the Grand Jury would vote against indictment” and that "the Special Prosecutor’s admission to the September 1978 Grand Jury that he only had a few remaining witnesses was either erroneous or misleading” (75 AD2d 897, 898, supra). But it is the very element of bad faith on the part of the prosecutor upon which the McGinley court clearly premised its decision that the hearing court, in the case before us, has specifically found to be missing.

The majority does not suggest that every withdrawal of a charge by the District Attorney and subsequent resubmission without court approval would constitute a violation of article 190 making the Grand Jury proceeding defective under CPL 210.20 (1) (c) and subject to dismissal under CPL 210.35. Indeed, such a per se rule would be directly contrary to the plain wording of CPL 190.75 and 190.60 and would amount to an outright amendment of those statutes through judicial legislation. Under the announced rule, the motivation of the District Attorney in withdrawing the case and whether he acted in good faith or bad faith (decisive factors present in McGinley) are irrelevant. The equation is based entirely on "the extent to which the Grand Jury considered the evidence and the charge” (majority opn, at p 274). No guideline is provided as to when the case has progressed to the point where it should be deemed a dismissal. But, from the holding here, it is clear that a withdrawal may be deemed a dismissal even though there are further witnesses to be presented and even though the prosecutor has not instructed the Grand Jury on the law enabling them to begin their deliberations.

In our view, the interpretation of CPL 190.75 and 190.60 and the procedures followed by the courts below were entirely proper. If the hearing court had found bad faith or improper motivation on the part of the District Attorney, it should have dismissed the indictment provided that it also concluded that the integrity of the Grand Jury proceedings had been impaired and that there was a possibility of prejudice to the defendant (CPL 210.20 [1] [c]; 210.35 [5]). The court would, moreover, have been justified in requiring the District Attorney to obtain authorization for resubmission under CPL 190.75 (3) (see, Matter of McGinley v Hynes, supra). Because the court found no bad faith or other impropriety, it acted in accordance with existing statutory and decisional law in denying the defendant’s dismissal motion. We know of no practical or policy reason for changing the established rules and curtailing the power of the District Attorney when he acts in good faith in withdrawing a case before presentation of the evidence has been completed and the Grand Jury has commenced its deliberations on the matter. Certainly, nothing in the legislative history of CPL 190.75 (3) supports the conclusion that the Legislature intended to require court approval for resubmission of a charge which has not been dismissed but which has been withdrawn by the prosecutor acting in good faith for a proper reason. On the contrary, it appears from the history of the statute and its predecessor in the Code of Criminal Procedure (see, majority opn, at p 273) that the sole purpose behind the enactment of CPL 190.75 (3) was to insulate citizens from prosecutorial excesses and to curtail the power of a prosecutor to "resubmit charges without limitation” (majority opn, at p 273) after successive dismissals of the charge by different Grand Juries. Thus it is that the statute by its terms is precisely limited to a resubmission when "a charge has been * * * dismissed” (CPL 190.75 [3]; emphasis added).

As the hearing court pointed out, reasons "for withdrawing a case [before the Grand Jury has acted on it] arise when witnesses requested to appear are not able to do so because of illness, vacation or some other personal reason.” Henceforth, one must assume, resubmission of a charge which has been withdrawn for such routinely advanced reasons could, although clearly not called for under the statute, require court authorization under CPL 190.75 (3). Certainly prudence would dictate that court authorization be sought. Adding judicially created limitations on the District Attorney’s discretion to the limitations already existing in the statutory framework is certainly not necessary for the purpose of preventing the District Attorney from acting with improper motives and "defeating CPL 190.75 (3) in almost every case by withdrawing all but 'open and shut’ cases and resubmitting them after further preparation or a more compliant Grand Jury is impaneled” (majority opn, at p 275). For, as noted, the majority’s rule depends solely on the extent to which the evidence has been submitted and operates irrespective of the District Attorney’s motivation for withdrawing a case. And there are sufficient existing statutory safeguards for curbing the power of a prosecutor who acts in bad faith and withdraws a case from the Grand Jury for improper reasons (see, CPL 210.20 [1] [c]; 210.35 [5]; Matter of McGinley v Hynes, supra). The majority recognizes the "dilemma” that its judicial amendment of the applicable statutes will create for prosecutors who, for entirely legitimate reasons, must withdraw a case before presentation of the evidence is completed (majority opn, at p 276). It is hardly a satisfactory answer to this "dilemma” to point out, as the majority does, that a prosecutor may seek a court order for extension of the Grand Jury term (CPL 190.15 [1]) or authorization to resubmit to another Grand Jury (CPL 190.75 [3]). It is certainly no answer at all to the "dilemma” of the prosecutor who has withdrawn the case for good reasons, has had his requests for extension of the Grand Jury term and for resubmission to a new Grand Jury refused by the court, and must see his case dismissed. For these reasons, we must record our dissent.

Judges Meyer, Kaye and Titone concur with Chief Judge Wachtler; Judge Hancock, Jr., dissents and votes to affirm in a separate opinion in which Judges Simons and Alexander concur.

Order reversed and indictment dismissed with leave to the District Attorney to apply for an order permitting resubmission of the charges to another Grand Jury.

      . Freída was eventually located after the conclusion of the Grand Jury proceedings, and testified for the People at the second trial.

      . The statute which presently controls, CPL 190.75 (3), provides: "3. When a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury. If in such case the charge is again dismissed, it may not again be submitted to a grand jury.”

      . CPL 190.60 provides:
      "After hearing and examining evidence as prescribed in section 190.55, a grand jury may:
      "1. Indict a person for an offense, as provided in section 190.65;
      "2. Direct the district attorney to file a prosecutor’s information with a local criminal court, as provided in section 190.70;

        "3. Direct the district attorney to file a request for removal to the family court, as provided in section 190.71 of this article;
      "4. Dismiss the charge before it, as provided in section 190.75;
      "5. Submit a grand jury report, as provided in section 190.85.”

      . CPL 190.25 (1) provides: "1. Proceedings of a grand jury are not valid unless at least sixteen of its members are present. The finding of an indictment, a direction to file a prosecutor’s information, a decision to submit a grand jury report and every other affirmative official action or decision requires the concurrence of at least twelve members thereof.”

      . For example, the case primarily relied upon, People ex rel. Raimondi v Jackson (277 App Div 924, Iv denied 301 NY 816), merely held that habeas corpus would not lie to review an indictment resulting from an allegedly unauthorized resubmission. In dictum, the court noted: "Here there was no dismissal [of the charge by the first Grand Jury]. It does not appear that there was any consideration, action, vote or return” (277 App Div, at p 924).

      . The controlling statutory authority is CPL 210.35, which provides in pertinent part:
      "A grand jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 [i.e., will be properly dismissed upon motion] when: * * *
      "5. The proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result.”

      . [4] We decline the prosecutor’s invitation to adopt the rule of United States v Mechanik (475 US —, 106 S Ct 938) that conviction after trial renders a defect in Grand Jury proceedings harmless error. Our statute, CPL 210.35 (5), provides for dismissal upon the mere possibility of prejudice, and we have consistently held that defects in Grand Jury proceedings (as opposed to claims of insufficiency of evidence to support the indictment, which are barred by CPL 210.30 [6]) may be raised even after a plea of guilty (see, e.g., People v Dunbar, 53 NY2d 868).

      . CPL 210.20 (1) (c) provides:
      "1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that: * * *
      "(c) The grand jury proceeding was defective, within the meaning of section 210.35”.

      . The Judge hearing the motion to dismiss the indictment made the following finding of fact: "I am urged that the Assistant [District Attorney] had already submitted all of his evidence to the November Grand Jury for its consideration. I do not find this to be so since they asked for additional witnesses and when these were not produced no further action was taken by the Grand Jury before the case was withdrawn. As the Grand Jury transcripts indicate, they asked to hear the arresting officer, Detective Edward Martin, and a witness known only as Freda.” (Emphasis supplied.)

      . CPL 190.75 insofar as pertinent is as follows:
      "1. If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge. In such case, the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled.
      "2. If the defendant was previously held for the action of the grand jury by a local criminal court, the superior court to which such dismissal is presented must order the defendant released from custody if he is in the custody of the sheriff, or, if he is at liberty on bail, it must exonerate the bail.
      "3. When a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury. If in such case the charge is again dismissed, it may not again be submitted to a grand jury.”