author:
Fuchsberg, J.
      Jasen, J.

text:
    The People of the State of New York, Respondent, v Warren Joseph Knapp, Appellant.
    Argued April 1, 1981;
    decided May 14, 1981

      POINTS OF COUNSEL

      Anna M. Perry and John F. Middlemiss, Jr., for appellant.
    I. The trial court erred in denying appellant’s motion to suppress evidence seized from appellant’s home without a warrant. (Coolidge v New Hampshire, 403 US 443; Chimel v California, 395 US 752; Arkansas v Sanders, 442 US 753; Katz v United States, 389 US 347; People v Fields, 45 NY2d 986; People v Williams, 37 NY2d 206; People v Belton, 50 NY2d 447; People v Spinelli, 35 NY2d 77; People v Clements, 37 NY2d 675.) II. The circumstances surrounding appellant’s arrest constituted a denial of due process. (People v Isaacson, 44 NY2d 511; Oregon v Haas, 420 US 714; Sorrells v United States, 287 US 435; United States v Russell, 411 US 423; Hampton v United States, 425 US 484; United States v West, 511 F2d 1083.)

      Patrick Henry, District Attorney (Charles M. Newell of counsel), for respondent.
    I. The trial court properly denied the motion to suppress the physical, evidence seized at the time of and following appellant’s arrest. (People v Clements, 37 NY2d 675; People v Calhoun, 49 NY2d 398; People v Fields, 45 NY2d 986; People v Vaccaro, 39 NY2d 468; People v Cadby, 62 AD2d 52; People v Cunningham, 71 AD2d 559; United States v Campbell, 581 F2d 22; United States v Agapito, 477 F Supp 706; United States v Callabrass, 607 F2d 559.) II. Appellant’s conviction should not be reversed on the ground that he was denied due process of law by the conduct of the police in arresting him. (People v Isaacson, 44 NY2d 511; People v Archer, 68 AD2d 441; People v Pomeratnz, 63 AD2d 457.)
   OPINION OF THE COURT

Fuchsberg, J.

Defendant Warren Knapp was convicted, following a jury trial, of criminal possession and of criminal sale of a controlled substance, each in the sixth degree (Penal Law, §§ 220.06, 220.31). The Appellate Division having affirmed, the appeal is here by permission of a Judge of this court (CPL 460.20).

In the main, we are called upon to decide whether the warrantless search of defendant’s home, conducted at the time of his arrest, was reasonable within the meaning of our Constitutions (NY Const, art I, § 12; US Const, 4th, 14th Arndts). For the reasons which follow, we conclude that, in important part, it was not.

The recital of the facts, taken in a light most favorable to the People, may well begin with the role played by a 21-year-old biochemistry student, Frederick Allen Botway, who, in expectation that he would receive favorable consideration on an unrelated pending drug charge for which he was then under indictment, agreed to act as a police informer. In pursuit of that undertaking, and with the encouragement of Detective Robert Sievers, a Suffolk County undercover agent, Botway accepted an opportunity offered by an acquaintance, the defendant Warren Knapp, to guide and assist the latter, who was relatively ignorant of chemistry, in a project to produce a quantity of the controlled drug methaqualone.

The work had already begun, and with Botway’s help, continued in the basement of the defendant’s house. When it had progressed to a point where the manufacture was almost complete, Knapp told Botway that he expected to effect a sale of the drugs to a third party. On learning of this development, Sievers instructed Botway to tell Knapp that he had a friend who was interested in buying it. After an interval during which the informer reported on some supposed discussions with his prospect, a “friend Bob”, Knapp expressed a willingness to make such a sale at a contemplated price in the range of seven to eight hundred dollars, to be shared between Knapp and Botway. A time was then fixed for Botway to bring “Bob” to the house where he could meet Knapp and make his planned purchase.

When early on the appointed day, Botway, “friend Bob” in the person of Sievers in tow, arrived at the house, they came to the back door where Knapp, still in a bathrobe, admitted them directly to the kitchen. Unbeknownst to Knapp, a back-up team of four other police officers was waiting nearby to assist Sievers and Botway. After the introduction, the defendant left for his personal bedroom, from whence he returned with two plates, each of which contained a portion of the drugs. He set these down on the kitchen counter. Asked by Sievers whether that was the total, he replied that there was an additional plateful, along with a supply of capsules in which the drugs could be packaged for convenient ingestion, still in his bedroom. Sievers and Knapp then confirmed a price of $750.

At this point, the agreement to sell having been completed, as prearranged between Sievers and his informer, the latter was dispatched, ostensibly to get the money from a car, but in fact to signal the waiting police reinforcements, who, also gaining access through the rear door, entered the kitchen, where Knapp was about to be arrested. The informer having previously alerted his cohorts to the fact that the defendant rented bedrooms to four individuals who at that hour might still be in the house, the police at once rounded up and secured all four. By then, Sievers and company had also taken possession of the drugs the defendant had brought into the kitchen.

It was only after they had assured themselves of complete control of the house and its occupants that the police took their next step, a warrantless entry into defendant’s bedroom. There they found and seized the capsules and the third plate of methaqualone of which Knapp had spoken to Sievers.

The final relevant police activity in the house was to search the basement. The testimony indicates that this they did not do until 45 minutes to an hour after the arrest. As a result of Sievers’ superintendence of the informer’s earlier activity, the police, of course, had known well in advance that this was the location of the defendant’s homemade laboratory. There, besides some electronic appliances, they seized Bunsen burners, test tubes, chemicals, “raw” methaqualone and assorted pills.

Following a pretrial hearing, an omnibus motion to suppress the objects seized in the defendant’s home was denied. County Court, without differentiating among its various phases, sweepingly held that the search and seizure. “was a reasonable and proper activity” “made during the course of and immediately following such arrest”.

In so doing, the court failed to recognize that, analytically, there were three different seizures. Reviewing these in chronological order, the avails of the first were the two plates seized in the kitchen at the time of Knapp’s arrest. The fruits of the second, which flowed from the search of Knapp’s personal bedroom, were the third plate and capsules. It was in the last one, of the basement, that the People gained possession of the “laboratory” articles.

In the evaluation of each of these episodes of the broader event, we start with the reminder that our Constitutions accord special protection to a person’s expectation of privacy in his own home (NY Const, art I, § 12; US Const, 4th, 14th Amdts; Steagald v United States, 451 US —, 49 USLW 4418, 4421; Payton v New York, 445 US 573, 585, 589-590; People v Calhoun, 49 NY2d 398, 402). To further insulate this right, subject only to carefully drawn and narrow exceptions, a warrantless search of an individual’s home is per se unreasonable and hence unconstitutional (Mincey v Arizona, 437 US 385; 393-394; People v Gonzalez, 39 NY2d 122, 127; People v Williams, 37 NY2d 206). Further, to militate against any rationalizing away of these protections, the burden of proving the existence of sufficiently exceptional circumstances is placed squarely on the shoulders of the government (Vale v Louisiana, 399 US 30, 34; accord People v Hodge, 44 NY2d 553, 557). All the more is this so when there is ample opportunity to obtain a warrant (compare People v Hicks, 38 NY2d 90, with People v Spinelli, 35NY2d 77, 81-82).

We now turn to each phase of the search to determine whether the burden of proving that the fundamental and interrelated principles to which we have referred were respected in each instance.

The seizure of the two plates in the kitchen is easiest to justify because it was a search incident to arrest. Obviously, an arrest may provide a ready motive for a desperate suspect to attempt to offer resistance, with or without available weapons, or to destroy any incriminatory evidence that is within his reach. To guard against such eventuality, not the least of which is danger to the arresting officers themselves, the law, with sense and practicality, permits a limited “search of the arrestee’s person and the ‘area’ within his immediate control” to take place then and there (Chimel v California, 395 US 752, 763; see, also, People v Belton, 50 NY2d 447, cert granted 453 US —, 49 USLW 3515; People v Perel, 34 NY2d 462).

By this criterion, we cannot say that the kitchen search was unreasonable as a matter of law. Targeted to the two plates alone, it involved no rummaging. Nor was it an independent investigative inquiry. In real perspective, the cautionary search for and assembling of the renters, the consummation of the arrest and the protective seizure of the two plates of contraband were going forward contemporaneously, the latter two in close proximity in the same room.

In this temporal and spatial immediacy, it could have needed no more than the movements of an unsuccessful struggle to reach and scatter the plates, whose uncapsulated contents were later to be described as mucous-like in consistency. Moreover, it was too early to reliably appraise defendant’s penchant for resistance or destruction, if any, or his ability, at all odds, to essay either. Under these circumstances, the affirmed findings upholding the reasonableness of this judgment in the “field” may not be disturbed (see People v Alexander, 37 NY2d 202, 204).

In contrast, the subsequent searches of the bedrooms and the basement give us more than pause. To justify these, the People place primary reliance upon the exception carved out for “exigent circumstances” and, alternatively, upon the one for “plain view”. And, as an ultimate resort, after candidly recognizing that the 45 minute to an hour hiatus between the arrest and the search of the basement made that one in particular difficult, if not impossible, to defend, the People also urge us to sustain that seizure, as well as the one in the bedroom, either on a theory of inevitable discovery or on its pragmatically related cousin, harmless error.

The “exigent circumstances” doctrine, which allows for broader application of much of the logic which permeates the search-incident-to-arrest exception, is said to exist whenever, though there is probable cause to search, urgent events make it impossible to obtain a warrant in sufficient time to preserve “ ‘evidence or contraband threatened with removal or destruction’ ” (People v Vaccaro, 39 NY2d 468, 472, quoting Chapman v United States, 365 US 610, 615). But, even when that holds true, the scope of conduct thus sanctioned is strictly limited by the necessities of the circumstances in which it arises (People v Gonzalez, 39 NY2d 122, 127, supra; People v Clements, 37 NY2d 675, 679, cert den sub nom. Metzger v New York, 425 US 911).

These cautions in mind, before the police here undertook their search of either the bedroom or the basement, it is clear that any urgency was gone. Since the arrival of Sievers and Botway on the morning of the arrest was pursuant to appointment, made on a previous day, there had long been more than ample time in which to have applied for a warrant so that a Judge could objectively pass on the justification for the contemplated intrusion. Nothing about the entry onto the premises was left to spontaneity or opportunism. Not even a shift in the target time was to be anticipated. The climax of the investigation was well planned. Knapp had not been apprehensive. There was every reason to believe circumstances would not change.

Furthermore, if anything, there was even less uncertainty after the arrest. Indeed, the suppression court made no finding of any kind of emergency (cf. People v Clements, 37 NY2d 675, 677, supra), confining itself instead to a declaration that the contraband was of a type that “could easily be disposed of”. However, in and of itself, this is not a predicate for an exigency (Vale v Louisiana, 399 US 30, 34-25, supra; People v Torres, 45 AD2d 185, 187). The constitutional protections do not hinge upon whether drugs or other contraband are capable of easy removal or destruction. Absent any showing that they were self-destructable within the time frame with which the police in the present case had to reckon, the fact that they were beyond the reach of any destructive agency, human or mechanical, ruled out any inherent exigency.

As already indicated, by the time the police took it upon themselves to invade the bedroom, they were in complete control of the house. All occupants were out of commission. The information obtained from Botway had turned out to be reliable. There had been no hidden surprises. According to their own testimony, the only reason the police entered the room was to search for the drugs and capsules Knapp had described.

There was therefore no excuse for proceeding without a warrant, unless it was the personal impatience or inconvenience of the police, considerations which never may be permitted to outweigh the constitutional interests at stake (Steagald v United States, 451 US —, 49 USLW 4418, 4423, supra). The time and effort it may have taken to comply with the warrant prescription, and any delay it may have occasioned in seizing the additional drugs and paraphernalia, subjects on which the People proffered no proof, presented no demonstrated danger to the public or the police.

Similarly unavailing was “plain view”. This exception is premised on the rationale that what a person exposes to the public eye cannot be the subject of a legitimate expectation of privacy (People v Spinelli, 35 NY2d 77, 80, supra). But, it “may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges” (Coolidge v New Hampshire, 403 US 443, 466). Since the warrantless entry into the bedroom and basement here had no such prior justification, the objects observed and nevertheless seized must be suppressed as the product of that illegality (People v Allende, 39 NY2d 474, 477). In addition, we note that there was no finding nor, for that matter, testimony at the suppression level that the items seized in the bedroom, even then, were in plain view.

“Inevitable discovery” is of no greater help to the People. That doctrine, logically somewhat akin, for instance, to the “independent source” on which the acceptance of many disputed criminal identifications depends (Gilbert v California, 388 US 263, 272; People v Ballott, 20 NY2d 600, 606), stands for the proposition that fruits of an unlawful search need not be suppressed where there is “a very high degree of probability that the evidence in question would have been obtained independently of the tainted source” (People v Payton, 45 NY2d 300, 313, revd 445 US 573, on remand 51 NY2d 169).

But here the “inevitable discovery” was not of something the police in any event would have obtained through an independent untainted source (cf. People v Fitzpatrick, 32 NY2d 499, 507, cert den 414 US 1050 [search of closet in which gun was found would have taken place irrespective of illegal questioning of the defendant]; People v Payton, supra [routine systematic police investigation of gun dealers would have led to witness irrespective of illegal seizure of bill of sale from defendant’s apartment]), The People do not suggest any other means by which they would have gained possession of the contraband in question except for the by now tainted search of the bedroom and basement. Once so flawed, it could not be reincarnated as a hypothetical untainted one. Were the rule otherwise, every warrant-less nonexigent seizure automatically would be legitimatized by assuming the hypothetical alternative that a warrant had been obtained. Without the deterrment effect of the exclusionary rule, in such circumstances the constitutional warrant procedure for shielding Americans from unreasonable searches and seizures would be a shambles.

Finally, we cannot say that the erroneously unsuppressed products of the bedroom and basement searches were harmless. The defendant took the stand to testify to an exculpatory version of the events and apparently enough of the jurors were sufficiently impressed by his defense that, before the ultimate verdict brought their lengthy deliberations to an end, they had reported that they were at an impasse. This hardly supports the contention that there was “no reasonable possibility” that the errors contributed to the conviction (People v Almestica, 42 NY2d 222, 226).

For all these reasons, the order of the Appellate Division should be reversed, the motion to suppress granted to the extent indicated in this opinion, and the matter remitted to the Suffolk County Court for further proceedings on the indictment.

Jasen, J.

(concurring). I agree with the majority that the laboratory equipment seized in the basement of defendant’s house should have been suppressed. In regard to the third plate of methaqualone and the gelatin capsules obtained from defendant’s bedroom, the People assert that defendant, by informing Detective Sievers of the presence of this contraband in the bedroom, abandoned his expectation of privacy in that room as to those items and, therefore, the warrantless search of the bedroom was proper. (See United States v Candella, 469 F2d 173, 175.) Inasmuch as the People failed to raise this contention at the suppression hearing despite having had a full opportunity to do so, they may not now raise it on appeal as an alternative theory to sustain the warrantless search of the bedroom. (People v Payton, 51 NY2d 169, 177; People v Havelka, 45 NY2d 636,642-643.) Hence, I am constrained to concur in the suppression of the evidence obtained as a result of that portion of the search of defendant’s house.

Chief Judge Cooke and Judges Jones, Wachtler and Meyer concur with Judge Fuchsberg; Judge Jasen concurs in a separate opinion in which Judge Gabrielli concurs.

Order reversed, etc.

       The defendant also seeks to vitiate the indictment on the ground that the People, through their agent Botway, had deprived him of due process by “egregious foul play”, which he would have us equate with that which we condemned in People v Isaacson (44 NY2d 511, 521-522). This contention is not supported by the record. Among other things, it does uphold the conclusion that the defendant importuned the informer to engage in the illicit enterprise and not the other way around. And, there surely is no constitutional protection against misplaced “friendships” (cf. Hoffa v United States, 385 US 293; People v Cardona, 41 NY2d 333). Moreover, in all, the ultimate goal of the police activity was consistent with legitimate law enforcement objectives (People v Archer, 68 AD2d 441, affd 49 NY2d 978, cert den 449 US 839).


source: Caselaw Access Project

license: Public Domain

text:
    Tofick Rezey, Appellant, v Golub Corporation et al., Respondents.
    Argued November 10, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Robert M. Cohen and Paul T. Devane for appellant.

      Carroll J. Mealey for respondent.
   OPINION OF THE COURT

Memorandum.

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

The jury was charged, without exception, that defendant’s statements were qualifiedly privileged. It was therefore incumbent upon plaintiff to prove that the statements were false and that the defendants were actuated by express malice or actual ill will (see, e.g., Ashcroft v Hammond, 197 NY 488, 495). Since plaintiff failed to do so, the complaint was properly dismissed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Donald Corbett, Appellant.
    Argued November 17, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      John W. Condon, Jr., Rose H. Sconiers and Joseph B. Mistrett for appellant.

      Edward C. Cosgrove, District Attorney, (John J. De Franks of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. There was no abuse of discretion in the conduct of the voir dire in this case.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Manuel Garcia, Appellant.
    Argued November 14, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Philip L. Weinstein and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Gail Jacobs, Billie Manning and Robert J. Carlucci of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the opinion by Mr. Justice Harold Birns at the Appellate Division (72 AD2d 356).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Northeast Central School District, Appellant, v Webutuck Teachers Association, Respondent.
    Argued November 18, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Raymond G. Kuntz for appellant.

      J. Michael Eadry and Bernard F. Ashe for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 673).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Guiseppe Mauro et al., Plaintiffs, v Joseph McCrindle et al., Defendants. Joseph McCrindle et al., Third-Party Plaintiffs-Respondents, v Complete Conduit & Pipe Service Corp. et al., Third-Party Defendants, and John Scala, Third-Party Defendant-Appellant.
    Argued November 11, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Norman Bard, John Corcoran and Sandra Krevitsky for third-party defendant-appellant.

      Norman H. Dachs and Harold M. Foster for third-party plaintiff s-respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Samuel Rabin at the Appellate Division (70 AD2d 77). Question certified answered in the affirmative.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg. Judge Meyer taking no part.


text:
    In the Matter of Allen A. Currier et al., Appellants, v Planning Board of the Town of Huntington, Respondent, and Gerald S. Doyle et al., Intervening Respondents.
    Argued November 11, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Robert R. Caputi and Gary N. Weintraub for appellants. John M. Duffy, Town Attorney, for respondent.

      Eleanor Janosek Doyle, Gerard S. Doyle, Jr., and Gregory J. Battersby for Gerard S. Doyle and another, intervening respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (74 AD2d 872).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Eli Berman, Appellant, v Sheva Berman, Respondent.
    Argued November 12, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      J. Anthony Burton for appellant.

      Howard F. Husum and Roy M. Cohn for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice Arnold L. Fein at the Appellate Division (72 AD2d 425). Question certified answered in the affirmative.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of the Estate of Benjamin Bedotsky, Deceased. Louis J. Lefkowitz, as Attorney-General of the State of New York, et al., Respondents; Theodore W. Roth, Doing Business as Missing Heirs International, Appellant. In the Matter of the Estate of Adelma R. Maxson, Deceased. Louis J. Lefkowitz, as Attorney-General of the State of New York, et al., Respondents; Theodore W. Roth, Doing Business as Missing Heirs International, Appellant.
    Submitted November 13, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Samuel Lawrence Brennglass for appellant.

      Robert Abrams, Attorney-General (Shirley Adelson Siegel, Frank I. Strom, II, and Irwin M. Strum of counsel), for Attorney-General, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Samuel J. Silverman at the Appellate Division (66 AD2d 635).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of John McWilliams, Appellant, v Yoosuf A. Haveliwala, as Director of the Harlem Valley Psychiatric Center, Respondent.
    Argued November 17, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Eugene F. Frink for appellant.

      Robert Abrams, Attorney-General (Arlene R. Silverman and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (70 AD2d 659).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Bert Schussel et al., Appellants, v New York City Transit Authority, Respondent, et al., Defendants.
    Argued November 10, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Roger K. Solymosy and Steven E. Pegalis for appellants.

      Kenneth Howard Schiffrin, Helen R. Cassidy, John A. Murray and Solomon Tanzer for respondent.
   OPINION OF THE COURT

Memorandum.

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

There was no error of law in the unanimous determination of that court that all 22 causes of action set forth in the complaint should be dismissed. Nor was it an abuse of discretion to deny appellants leave to replead with respect to the claims alleged in the first four causes of action.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v John Pilgrim, Appellant.
    Argued November 13, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Michael J. Obus and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (Robert M. Nigro and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Counts 1 and 4 of the indictment (criminal sale of a controlled substance in the first and second degrees, respectively) , on which defendant was convicted and that are the subject of this appeal, were submitted to the jury on theories both of completed sale and of agreements to sell (Penal Law, §220.00, subd 1). While no particular instructions were included as to the elements of the transaction required to be proved to establish an agreement to sell, no protest to their omission from the court’s charge was registered by defendant.

The record contains sufficient evidence of transactions in Nassau County to support convictions on the basis of agreements to sell made in that county. The trial court made no error, therefore, when it denied defendant’s application to dismiss the counts on the ground that venue was improperly laid in Nassau County.

Nor may defendant now be heard to complain that the trial court erred in failing to submit the venue issue to the jury for its resolution. In view of the fact, as defendant candidly concedes, that he neither requested such submission nor took exception to the court’s failure to submit the issue to the jury, his claim of error, if any, has not been preserved for our review.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    New York Metro Corporation, Respondent, v Chase Manhattan Bank, N.A., Appellant.
    Argued November 13, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Michael J. Levin, Andrew J. Connick and Edward I. Handelman for appellant.

      Miles F. McDonald, Jesse Climenko, Robert A. Katz, Joseph J. Einhorn and Laurie A. Asch for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for a new trial.

In this action to impose liability on appellant bank for permitting an unauthorized withdrawal of funds from a corporate account at the direction of the corporate president, the case was defended by the bank principally on the theory that it was protected from liability under the provisions of section 9 of the Banking Law inasmuch as it had had a corporate resolution authorizing such withdrawal on file at the time of the withdrawal, although that resolution had subsequently been inadvertently destroyed. But the jury, in a special verdict, found that no such corporate resolution had been on file with the bank, thus effectively negating this defense.

There was, however, other evidence, though not extensive, from which the jury could have concluded that Mr. Schuddekopf had authority, as corporate president, to direct withdrawals from the corporate account unrelated to any specific corporate resolution. In addition to requests for a special verdict and for instructions with respect to the claimed corporate resolution, counsel for the bank also requested both that the question on which the jury was instructed to return a special verdict be phrased to include a finding as to whether Mr. Schuddekopf, as president of the corporation, had authorization to draw on the corporate bank account independent of any corporate resolution, and that the jury be instructed that they were to determine whether he had such authority unrelated to any corporate resolution. The trial court denied both requests.

This was error. The bank, while relying principally on the existence of a corporate resolution in its files, also contended that wholly without regard to such evidence the president in fact had authority to direct the withdrawal from the corporate account and the issuance of the cashier’s check payable to a third person. Inasmuch as there was evidence in the case to support this contention it was error not to have submitted it to the jury.

Nor can the jury verdict for plaintiff be sustained on the theory that the bank did not exercise reasonable care inasmuch as that theory of recovery was never submitted to the jury.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    In the Matter of the Arbitration between Windsor Central School District, Appellant, and Windsor Teachers Association, Respondent.
    Argued November 17, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Edward J. Sarzynski for appellant.

      Kevin H. Harren, Bernard F. Ashe and Rocco A. Soliviando for respondent.
   OPINION OF THE COURT

Memorandum.

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

In their 1977 collective bargaining agreement, the school district and the teachers association in article XXIV agreed unequivocally, at level four of their prescribed grievance procedures, to submit grievances to arbitration for resolution. Grievances are broadly defined as complaints “by a teacher or a group of teachers based upon an alleged violation or a variation from the provisions of this Agreement or the interpretation or application thereof” (art XXIV, subd A).

In the demand for arbitration the substantive provisions of the collective bargaining agreement as to the interpretation and application of which the present controversy arose were identified as “1. Recognition Clause; 2. Article 31 (Salaries); 3. Article 15-16 (Leaves); and 4. Article 3”. To this list the school district in effect added “Article XXXII (Length of Contract)”, which contained continuation provisions in the event a new contract had not been reached when the stated term of the 1977 agreement expired. Each .of these provisions, including the last, relates to the substantive terms of the agreement between the parties. It does not alter the classification of article XXXII as a “substantive” provision that its interpretation will determine the duration of the agreement to arbitrate. It is nonetheless a “provision of this Agreement”, other than the arbitration clause itself, and as such is a proper subject of a grievance, and thus of arbitration, within the explicit agreement of the parties.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    Louis Dreyfus Corporation et al., Appellants, v ACLI International, Inc., et al., Respondents, et al., Defendant.
    Argued November 18, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Frederick B. Boyden for appellants.

      Peter Fleming, Jr., Herbert Stoller, John E. Sprizzo and Robert Stolz for respondents.
   OPINION OF THE COURT

Memorandum.

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

The reliance expressed at the Appellate Division on the merger clauses in the 1971 and 1972 written partnership agreements and on the absence from the oral partnership agreement of any express provision as to sharing of losses is misplaced. The merger clauses refer explicitly only to the subsidiaries and in no way bind their parent corporations, and a provision to share partnership losses under the oral partnership in the same ratio as partnership profits would readily be implied (cf. Partnership Law, § 40, subd 1). The evidence on the whole supports the detailed findings made by the trial court and its pivotal conclusion that there was an overarching oral partnership agreement among the parent corporations and their subsidiaries, in conformity with which the subordinate partnership between the subsidiaries pursuant to their written partnership agreements was the implementing instrumentality.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Mattiace Industries, Inc., William J. Mattiace, M & M Drum Co., Inc., Peter Mattiace and Louis J. Mattiace, Appellants.
    Argued November 11, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Thomas Owen Morgan for appellants.

      Robert Abrams, Attorney-General (Mary L. Lyndon, Shirley Adelson Siegel and Marcia J. Cleveland of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed and a new trial ordered.

We agree with the Appellate Term's conclusion that ECL 71-1933 (subd 2) prohibits prosecution only prior to determination of administrative proceedings, if any, when the prosecution involves violation of orders and determinations of the commissioner or the department. In view of the fact that the defendants were not charged with violating such an order or determination, the provisions of subdivision 2 are not applicable.

With respect to the convictions for failing to give the notice required by ECL 17-1743, we agree with the defendants that the statute requires proof of actual knowledge of the prohibited contamination “into the waters of the state”. However, evidence on this point, particularly proof with respect to prior occurrences of this nature under similar circumstances, or other circumstantial evidence, could be sufficient to establish guilt beyond a reasonable doubt.

Reversal is mandated, however, because counsel for the defense was entitled to the prior statements made by the witnesses for the purpose of impeachment. The denial of this request was improper (People v Rosario, 9 NY2d 286, cert den 368 US 866). This error cannot be deemed harmless (People v Consolazio, 40 NY2d 446, cert den 433 US 914).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Nancy E. Wilson, Doing Business as Bayside Park Grocery, Respondent, v New York State Liquor Authority, Appellant.
    Argued November 12, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Barry C. Plunkett and Warren B. Pesetsky for appellant.

      Robert M. Weldon for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the determination of the authority reinstated, with costs.

In this case the petitioner, who sought a grocery store beer license, is married to a Deputy Sheriff who concededly is a field officer performing criminal law enforcement duties (see, also, CPL 1.20, subd 34, par [b]). In addition it is noted that the premises for which the license was sought is jointly owned by the petitioner and her husband. Under these circumstances it cannot be said that the authority acted irrationally in concluding that a granting of this application would give a police officer an indirect interest in the licensed sale of alcoholic beverages, in violation of section 128 of the Alcoholic Beverage Control Law.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Carl Payne, Also Known as Karl Dean, Appellant.
    Argued November 17, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Bertrand J. Kohn and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Lucille Di Bello and Barbara L. Linzer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant claims that it was reversible error for the People to have failed to give him, prior to trial, the memorandum of a statement previously made by a prosecution witness (see People v Rosario, 9 NY2d 286). The memorandum in question was the recorded statement made by Officer De Setto, an eyewitness to the crime, and was provided to defendant during the trial but after De Setto had testified.

Defendant alleges that the failure to afford him an opportunity to use this statement in cross-examination of De Setto prevented him from illuminating for the jury the significance of an asserted inconsistency between the previous statement and De Setto’s testimony at trial.

It is noted that defendant’s claim that he could have used the memorandum of De Setto’s prior statement had he only possessed it, appears disingenuous in view of the availability of essentially duplicative statements which De Setto had made to the Grand Jury and the prosecutor. Although, in the normal course, the memorandum certainly should have been provided along with the other statements by prosecution witnesses, here the availability of the duplicative material, which in fact was used by the defendant, eliminates both the possibility of prejudice and the asserted ground for reversal (People v Consolazio, 40 NY2d 446; cf. People v Rosario, supra).

We have considered defendant’s other contentions and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    Michael J. Faughnan, Appellant, v Robert McGuire, as Police Commissioner of the City of New York, Respondent.
    Argued November 12, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      John J. Maguire and Richard Hartman for appellant.

      Allen G. Schwartz, Corporation Counsel (Stephen J. McGrath and Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see Schampier v Office of Gen. Servs. of State of N. Y., 52 NY2d 746, decided herewith) .

Concur: Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer. Taking no part: Chief Judge Cooke.


text:
    Charles J. Schampier, Appellant, v Office of General Services of the State of New York et al., Respondents.
    Argued November 12, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      William F. Reynolds for appellant.

      Robert Abrams, Attorney-General (William J. Kogan and Shirley Adelson Siegel of counsel), for respondent.

      C. Roger Lunden for Division of Military and Naval Affairs, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 1011).

Concur: Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer. Taking no part: Chief Judge Cooke.


text:
    State Division of Human Rights, on Complaint of Fannie J. Williams, Appellant, v Burroughs Corporation, Respondent.
    Argued November 17, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Ann Thacher Anderson for appellant.

      William E. McKnight for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 801).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Board of Education of Three Village Central Schools of the Towns of Brookhaven and Smithtown, Appellant, v Three Village Teachers’ Association, Inc., Respondent.
    Argued November 10, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Vanessa M. Sheehan for appellant.

      Donald Congress and James R. Sandner for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (72 AD2d 756; see, also, Matter of Board of Educ. v Barni, 51 NY2d 894).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of C. Schmidt & Sons, Incorporated, Appellant, v New York State Liquor Authority, Respondent.
    Argued November 12, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Arthur M. Handler, Robert S. Goodman and Paul A. Batista for appellant.

      Stanley Stein and Warren B. Pesetsky for respondent.
   OPINION OF THE COURT

Memorandum.

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

While it would certainly have been the better practice for the authority explicitly to have spelled out in its determination of December 8, 1978 the fact that it had given consideration to the materials concerning Mr. Pflaumer submitted as part of the request for reconsideration, that fact is implicit in the statement that it had “granted your request for reconsideration of the disapproval”. That the authority adhered to its original determination cannot be held to be an abuse of discretion in light of the relationship of the misdemeanor convictions to the license sought, the more so since section 752 of the Correction Law enacted to prevent unfair discrimination against persons convicted of criminal offenses expressly excepts cases in which “there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought”. Finally, consideration by the authority of information received by its investigators from Rivinia Corporation and F & M Schaefer Corporation but never made available to petitioner did not constitute a denial of due process (Matter of Fink v Cole, 1 NY2d 48).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    In the Matter of Frank Goderre, Respondent, v City of Peekskill et al., Appellants.
    Argued November 13, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      Richard S. Scanlan for appellants.

      Reynold A. Mauro and Richard Hartman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the determination of respondents terminating petitioner’s employment by the City of Peekskill as a police officer should be reinstated, with costs.

We agree with Mr. Justice Charles Margett, dissenting below, that respondents’ determination is supported by substantial evidence on the record as a whole. We add only that, though it would have been better practice for the hearing examiner to make specific findings and conclusions rather than, as he did, to quote extensively from the findings and conclusions of the Supreme Court Justice who tried the false arrest action against petitioner and the city, it is clear from the hearing transcript that the examiner was aware of the difference between the false arrest trial and the hearing before him and sought by questioning petitioner in relation to the Supreme Court findings simply to give petitioner the opportunity to offer any explanation and present any evidence he wished in relation to the arrest of Pedro Rivera.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, with costs, and the determination of respondents reinstated in a memorandum. Question certified answered in the negative.


text:
    George Ruhland et al., Plaintiffs, v John W. Cowper Co., Inc., Appellant, and Grove Roofing Co., Inc., Respondent.
    Argued November 14, 1980;
    decided December 16, 1980

      APPEARANCES OF COUNSEL

      John F. Canale for appellant.

      James R. Walsh and William A. Gersten for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (72 AD2d 907).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Norman H. Shilling, as a Judge of the Civil Court of the City of New York, Kings County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted December 17, 1980;
    decided December 17, 1980
   Motion for reargument, considered one for reconsideration, granted. On reconsideration, original decision adhered to. A question under the Constitution of the United States, viz.: whether petitioner was denied due process of law by this court’s decision, was raised and necessarily passed on by this court. Motion for a stay denied without prejudice to an application under subdivision (f) of section 2101 of title 28 of the United States Code to an individual Judge of this court. [See 51 NY2d 397.]


text:
    The People of the State of New York, Respondent, v Ronald Roucchio, Appellant.
    Argued November 19, 1980;
    decided December 18, 1980
    APPEARANCES OF COUNSEL

      Irving Anolik for appellant.

      Robert M. Morgenthau, District Attorney (Bruce Allen and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division agreed with the suppression court that defendant’s inculpatory statement was spontaneously made. On this record, it cannot be said as a matter of law that the statement was not a spontaneous outburst, unprompted by police conduct. Accordingly,, suppression was not required (cf. People v Rogers, 48 NY2d 167, 174; People v Maerling, 46 NY2d 289, 301-302; see, also, People v Lynes, 49 NY2d 286, 294; People v Kaye, 25 NY2d 139). We have considered defendant’s other points and find no reversible error.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Edward McKnight, Appellant.
    Argued November 10, 1980;
    decided December 18, 1980

      APPEARANCES OF COUNSEL

      Joseph B. Mistrett and Rose H. Sconiers for appellant.

      Edward C. Cosgrove, District Attorney (John J. De Franks of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and a new trial ordered for reasons stated in the dissenting memorandum at the Appellate Division (71 AD2d 801, 802-804).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Sam Gershowitz, Appellant, v Planning Board of the Town of Brookhaven et al., Respondents. Sam Gershowitz, Appellant, v Town of Brookhaven et al., Respondents.
    Argued November 17, 1980;
    decided December 18, 1980

      APPEARANCES OF COUNSEL

      Oscar J. Bloom and Christopher Steele for appellant.

      Martin J. Kerins, Town Attorney (David P. Fishbein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Special Term reinstated.

The Brookhaven Zoning Board of Appeals, having issued petitioner a special use permit to operate an automobile shredder plant, determined that petitioner’s proposed use was in compliance with the Brookhaven Town Code. The use being so approved, the Brookhaven Planning Board was without power to disapprove petitioner’s site plan on the ground that petitioner’s use violated the Brookhaven Town Code. (See Brookhaven Town Code, § 85-160A; 2 Rathkopf, Law of Zoning and Planning [4th ed], § 30.04.) Thus, we agree with the Appellate Division that the planning board’s disapproval of petitioner’s site plan was a nullity.

We cannot, however, accept the Appellate Division’s determination that the issuance of petitioner’s special use permit by the Brookhaven Zoning Board of Appeals was beyond the board’s legislative authority. The issuance of petitioner’s special use permit was never challenged in an appropriate proceeding (see Town Law, § 267, subd 7) and was not before the Appellate Division in this case. In fact, the only matter before the court was the disapproval of petitioner’s site plan by the Brookhaven Planning Board. Inasmuch as no proceeding was ever brought to challenge the issuance of petitioner’s special use permit, the proposed use of the automobile shredder was rendered unassailable. Thus, the question whether issuance of the special use permit was authorized should not have been addressed by the Appellate Division as that determination was not before the court for review.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur; Judges Jones and Meyer dissent and vote to affirm in the following memorandum : We agree with the analysis and disposition at the Appellate Division and would accordingly give effect to the stipulation of judgment absolute.

Order reversed, with costs, and the judgment of Supreme Court, Suffolk County, reinstated in a memorandum.


text:
    The People of the State of New York, Respondent, v Abbott Manor Nursing Home et al., Appellants, et al., Defendant.
    Argued November 19, 1980;
    decided December 18, 1980

      APPEARANCES OF COUNSEL

      Charles G. Moerdler and Burton N. Lipshie for appellants.

      Gary Eichenbaum and Melinda A. Bass for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion by Mr. Justice G. Robert Wither (70 AD2d 434).

We note, however, that plaintiff has not attempted to appeal from the Appellate Division order insofar as it impliedly directs that the State be estopped from asserting defendants’ noncompliance with the time limitations contained in subdivision 4 of section 10 of the Court of Claims Act in any subsequent action brought by defendants against the State in the Court of Claims. Accordingly, we have no occasion to address the propriety of that aspect of the Appellate Division ruling.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


author: Meyer, J.

text:
    Paul Wolfgruber, Appellant, v Upjohn Company, Respondent.
    Argued November 20, 1980;
    decided December 18, 1980

      APPEARANCES OF COUNSEL

      David A. Shults for appellant.

      Andrea Lynch for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Richard J. Cardamons at the Appellate Division (72 AD2d 59).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler. Judge Meyer dissents and votes to reverse in an opinion in which Judge Fuchsberg concurs.

Meyer, J.

(dissenting). I would reverse and reinstate the order of Special Term which denied summary judgment to plaintiff based in part on. the fact that “plaintiff has not yet deposed the defendant.”

Plaintiff, a physician,. seeks to recover from defendant, drug manufacturer, for failure adequately to warn concerning the effects of the drug Cleocin. The Appellate Division reversing, granted summary judgment to defendant and held the warning contained in the package insert and in the Physician’s Desk Reference adequate as a matter of law.

Plaintiff’s infection developed in 1974 following administration of Cleocin to himself. Whether his doing so in the face of the warning printed in the insert and the desk reference and in view of his medical knowledge constituted contributory negligence or assumption of the risk presents a jury question' and furnishes no basis for summary judgment. Nor should plaintiff have been nonsuited on the adequacy of warning issue. Doing so deprived him of. his right to explore via pretrial discovery the facts known to defendant in 1974 as a basis for determining adequacy of the warning.

How fruitful such.discovery can be is, quite fortuitously, available in the record of a nearly identical case, Werner v Upjohn Co. (628 F2d 848). Comparison of defendant’s 1974 warning in the record of the present case with that in its 1974 “Dear Doctor” letter for the same drug set forth in the opinion in Werner shows the latter to be more detailed. Moreover, the history of the drug recounted in that opinion shows that disclosure may well provide plaintiff with evidence sufficient to take to the jury the question of adequacy of the warning relied upon by defendant in this case.

Plaintiff should not have been no-caused without an opportunity to obtain defendant’s records relating to its knowledge about and experience with the drug (CPLR 3212, subd [f]).

Order affirmed, etc.


text:
    In the Matter of Frank Di Maria, Respondent, v Philip Ross, as Industrial Commissioner, Appellant.
    Argued November 11, 1980;
    decided December 18, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Paul S. Shemin, Shirley Adelson Siegel and Iris A. Steel of counsel), for appellant.

      Ignatius John Melito, Barrish K. Flashner and Steven Di Joseph for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of the Unemployment Insurance Appeal Board reinstated.

The Unemployment Insurance Appeal Board found that claimant was not employed by Crown Tex Corporation and, ■thus, had failed to terminate his prior disqualification from receiving benefits caused by his discharge due to misconduct. (See Labor Law, § 593, subd 3.) In so finding, the board rejected testimony offered by claimant, his wife who was a bookkeeper at Crown Tex, and Gerald David, the assistant secretary of the company, on the ground that the circumstances surrounding claimant’s alleged employment rendered their testimony unworthy of belief. The circumstances relied on by the board in rejecting this testimony were, inter alia, that claimant earned exactly the amount required by statute to break his prior disqualification, that there was no economic reason which justified claimant’s temporary employment at Crown Tex, and that claimant made various misrepresentations concerning his alleged employment at Crown Tex when reapplying for unemployment insurance benefits.

As with any administrative determination of fact, the board’s assessment of the credibility of witnesses and the inferences to be drawn from the evidence presented are conclusive if supported by substantial evidence. (Labor Law, § 623; Matter of Fisher [Levine], 36 NY2d 146, 149-150; see Matter of Avon Bar & Grrill v O’Connell, 301 NY 150, 153; see, generally, 5 NY Jur 2d, Article 78 and Related Proceedings, §§ 16, 17.) In this case, the rejection of the testimony offered by the claimant, his wife and the assistant secretary of the alleged employer and the finding that claimant was not employed were well within the board’s power as fact finder. With the testimony of these witnesses discredited, there remained in the record evidentiary facts which, augmented by the inferences fairly to be drawn from such facts, supported the board’s finding that claimant’s prior disqualification had not been terminated. As such, the board’s determination that claimant continued to be disqualified from receiving unemployment insurance benefits by reason of his prior discharge due to misconduct, being supported by substantial evidence in the record, should not have been disturbed by the Appellate Division.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    Eden Gordon et al., Infants, by Their Mother Joan Gordon, Respondents, v Murray Gordon, Appellant.
    Argued November 20, 1980;
    decided December 18, 1980

      APPEARANCES OF COUNSEL

      Saul Edelstein and Phil Brown for appellant.

      Robert H. Harris for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Samuel Rabin at the Appellate Division (70 AD2d 86).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of John P. Hannon, Appellant, v Mario Cuomo, as Secretary of State of the State of New York, Respondent.
    Argued November 19, 1980;
    decided December 18, 1980

      APPEARANCES OF COUNSEL

      James B. Denman for appellant.

      Robert Abrams, Attorney-General (Diane De Furio Foody and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs.

On this record, there was substantial evidence to support the respondent’s conclusion. Nor can be it said that the penalty is shocking “to one’s sense of fairness” (Matter of Butterly & Green v Lomenzo, 36 NY2d 250, 256; Matter of Pell v Board of Educ., 34 NY2d 222, 223). It also appears that the notice and complaint served upon the appellant comported with the requirements of due process.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli taking no part.

Judgment affirmed, with costs, in a memorandum.


text:
    In the Matter of Glenville Gage Co., Inc., Respondent, v Industrial Board of Appeals of the State of New York, Department of Labor, Appellant.
    Argued November 20, 1980;
    decided December 18, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Carl E. Stephan and Shirley Adelson Siegel of counsel), for appellant.

      Arnold M. Gordon for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (70 AD2d 283).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Williams Real Estate Co., Inc., Appellant, v Douglas A. Edwards Incorporated et al., Respondents.
    Submitted November 20, 1980;
    decided December 18, 1980

      APPEARANCES OF COUNSEL

      Frederick E. Smithline for appellant.

      Burton H. Brody for Standard Brands, Inc., respondent. Sol V. Slotnik for Douglas A. Edwards, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

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

The only evidentiary fact to which plantiff points to sustain the fraud cause of action is that the exclusive agency agreement between Standard Brands Incorporated and Douglas A. Edwards Incorporated was not signed by Edwards until December 19, 1977. Plaintiff does not suggest that Edwards was not exclusive agent when on December 12, 1977 it represented to plaintiff that it was, but only that the written evidence of that agency, dated December 12, 1977, was not a completed agreement until Edwards signed it. Defendants are entitled to summary judgment on this cause of action because there is no triable issue concerning misrepresentation.

Plaintiff’s brokerage claim against Standard Brands and Edwards turns on the affidavit of Angela Pepi that on December 12,1977 in a telephone conversation with defendant Edwards principal, Ghazarossian, he told her that Edwards was “the exclusive broker-agent” and “Standard will pay a full brokerage commission to any procuring broker.” The fact of Edwards agency may not be proved by the declaration of the agent, however, and the only other evidence of agency submitted by plaintiff is the written1 agreement which contains the express limitation that “No commission will be due and payable unless and until a sublease or assignment of lease is executed”. Similar conditions were contained in the covering letters accompanying the proposed sublease forwarded by Standard Brands’ Director of Real Estate, of which Williams received a copy. Standard Brands is, therefore, entitled to summary judgment on the brokerage cause of action because no triable issue concerning either a written or an oral contract binding on it has been shown.

As concerns Edwards there is no factual support for the allegation of the complaint that Williams was employed by Edwards, for the Pepi affidavit establishes only that Ghazarossian told her that Standard would pay a full brokerage commission. Plaintiff’s claim against Edwards, as detailed in the supporting affidavits, is on an oral brokerage contract only. There is, therefore, no triable issue of fact on the contract cause of action against Edwards either.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Wayne Dozier, Appellant.
    Argued October 8, 1980;
    decided December 18, 1980

      APPEARANCES OF COUNSEL

      Donald E. Gilbert for appellant.

      Mario Merola, District Attorney (Vida M. Alvy and Billie Manning of counsel), for respondent.

      Robert Abrams, Attorney-General (Peter J. Dooley and Shirley Adelson Siegel of counsel), in his statutory capacity under section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that the Legislature did not act unreasonably when it fixed the age of female consent at 17 years, as opposed to some other, presumably younger, age. However we express no opinion with respect to the other claims of unconstitutionality urged by the defendant and discussed in the Appellate Division opinion, namely, the contention that the statute unconstitutionally discriminates on the basis of sex or that it violates due process by eliminating the mens rea element. Those issues were not properly raised in the trial court and thus are beyond our review.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Meyer concurs in result.

Order affirmed in a memorandum.


text:
    Central Funding Company, Respondent, v Theodore L. Deglin, Appellant, et al., Defendants.
    Submitted December 1, 1980;
    decided December 18, 1980
   Motion to withdraw appeal granted.


text:
    The People of the State of New York, Respondent, v Dwight Corley, Appellant.
    Submitted November 10, 1980;
    decided December 18, 1980
   Motion to dismiss the appeal herein granted and the. appeal dismissed upon the ground that appellant is not presently available to obey the mandate of the Court of Appeals in the event of an affirmance (see People v Diaz, 49 NY2d 760; People v Del Rio, 14 NY2d 165).


text:
    Harold Derdiarian et al., Respondents, v Felix Contracting Corp., Appellant, and Consolidated Edison Company of New York, Inc., Respondent, et al., Defendants. (And a Third-Party Action.)
    Submitted December 8, 1980;
    decided December 18, 1980
   Motion for reargument denied with $20 costs. Motion for a stay dismissed as academic. [See 51 NY2d 308,]

Judge Fuchsberg taking no part.


text:
    In the Matter of the Claim of Jeffrey Gibbons, Appellant, v Zara Construction Co., Inc., Respondent. Workers’ Compensation Board, Respondent.
    Submitted November 17, 1980;
    decided December 18, 1980
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that no appeal lies as of right from the Appellate Division order of unanimous affirmance (CPLR 5601, subd [a]).


text:
    Jeanette McLaughlin, Respondent, v Mobil Oil Corporation et al., Defendants and Third-Party Plaintiffs-Appellants. Michael McLaughlin, Third-Party Defendant-Respondent.
    Submitted November 17, 1980;
    decided December 18, 1980
   Motion for leave to appeal denied. Cross motion to dismiss appeal taken as of right granted and said appeal dismissed, with costs and $20 costs of motion, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of William M. Perry, Appellant, v Thomas Zarcone et al., Respondents.
    Submitted December 8, 1980;
    decided December 18, 1980
   Motion to dismiss appeal taken as of right granted and said appeal dismissed, without costs, and motion for leave to appeal dismissed, each upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. (See Cohen and Karger, Powers of the New York Court of Appeals, § 43, pp 169-171.) Motion for a stay dismissed as academic.


text:
    In the Matter of Edgar L. Ross, Appellant, v E. Leo Milonas, as Deputy Chief Administrative Judge, New York City Courts, Respondent.
    Submitted December 8, 1980;
    decided December 18, 1980
   Motion for leave to appeal denied.

Chief Judge Cooke taking no part.


text:
    In the Matter of Nancy G. Schlosser, Respondent, v Board of Education of the East Ramapo Central School District, Appellant, Sheri Alpert et al., Intervenors-Appellants, and Cynthia Diamond et al., Intervenors-Respondents. (Proceeding No. 1.) In the Matter of Claire Greenwald et al., Respondents, v Board of Education of the East Ramapo Central School District et al., Appellants, Sheri Alpert et al., Intervenors-Appellants, and Cynthia Diamond et al., Intervenors-Respondents. (Proceeding No. 2.) In the Matter of Ruth Elkind et al., Respondents, v Board of Education of the East Ramapo Central School District et al., Appellants, Sheri Alpert et al., Intervenors-Appellants, and Cynthia Diamond et al., Intervenors-Respondents. (Proceeding No. 3.) In the Matter of Norma Kobb, Respondent, v Board of Education of the East Ramapo Central School District, Appellant, Sheri Alpert et al., Intervenors-Appellants, and Cynthia Diamond et al., IntervenorsRespondents. (Proceeding No. 4).
    Submitted November 3, 1980;
    decided December 18, 1980
   Motion and cross motion for leave to appeal each dismissed insofar as they seek leave to appeal from so much of the order of the Appellate Division, Second Department, as affirmed the judgments of Supreme Court, Rockland County (Marbach, J.), in Proceedings Nos. 1, 3 and 4 and modified the judgment of that court in Proceeding No. 2, upon the ground that that part of the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution. Motions otherwise denied. Twenty dollars costs and necessary reproduction disbursements to each petitioner-respondent filing multiple copies of opposing papers.


text:
    Barbara L. Sesan, as Testatrix of Herman Sesan, Deceased, Appellant, v American Home Products Corp. et al., Respondents.
    Submitted November 24, 1980;
    decided December 18, 1980
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements to respondent Berzups, upon the ground that the order sought to be appealed from involves a question of discretion of the type not reviewable by the Court of Appeals (Cohen and Karger, Powers of the New York Court of Appeals, § 147, pp 584-587).


text:
    John A. Smith, Appellant, v City of Troy, Respondent.
    Submitted November 24, 1980;
    decided December 18, 1980
   Motion to dismiss the appeal from the Appellate Division order dated September 20, 1980 granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Hermann P. Wostl, Appellant, v Frances V. Wostl, Respondent.
    Submitted November 10, 1980;
    decided December 18, 1980
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the modification at the Appellate Division is not in a “respect, which is within the power of the court of appeals to review” (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582). Cross motion to extend the time in which to perfect the appeal dismissed as academic.


text:
    In the Matter of Psychiatric Services Center, Inc., Appellant, v Charles W. Bates, as Westchester County Commissioner of Social Services, et al., Respondents.
    Argued November 21, 1980;
    decided December 22, 1980

      APPEARANCES OF COUNSEL

      Evelyn K. Isaac and Marc E. Grossman for appellant.

      Samuel S. Yasgur, County Attorney (Marsha Bacon Glover and Jonathan Lovett of counsel), for Westchester County Commissioner of Social Services, respondent.

      Robert Abrams, Attorney-General (Robert A. Feuerstein, Shirley Adelson Siegel and George D. Zuckerman of counsel), for Acting New York State Commissioner of Social Services and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner seeks to obtain reimbursement for psychiatric clinic care administered to Medicaid patients. Under the applicable regulation (18 NYCRR 505.15 [b] [2] [ii]), such services are eligible for Medicaid payments or reimbursement only if they are provided in certain designated institutions: (1) municipal and voluntary hospitals supervised by the State Department of Health; (2) clinics operated by the State Department of Mental Hygiene; and (3) clinics under contract with or operated by community mental health boards. Inasmuch as petitioner does not qualify under one of these categories, it is ineligible to receive Medicaid payments or reimbursement for the psychiatric clinic care it rendered. This is so even though petitioner may be properly licensed to perform those services and may be entitled to reimbursement for other services furnished Medicaid patients.

Finally, we express "no opinion as to petitioner’s corporate status. Respondents did not put corporate status in issue, as they failed to deny petitioner’s allegation relating thereto.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Randolph Lockwood, Appellant.
    Argued November 21, 1980;
    decided December 22, 1980

      APPEARANCES OF COUNSEL

      Donald S. Hillman and William E. Hellerstein for appellant.

      Mario Meróla, District Attorney (Thomas L. Gazianis and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Defendant, convicted of robbery in the first degree, was charged with having committed the crime in the early morning hours of November 14, 1977, when, it is claimed, he effected a robbery of a gas station attendant by holding an object to the back of the station attendant’s neck and threatening to shoot him. The police arrived during the commission of the crime, and defendant made his escape by car trailed by a hail of bullets. An immediate chase ensued and after the perpetrator had eluded capture by the New York police, defendant was apprehended by the New Jersey State Troopers some 25 minutes after the robbery. According to testimony given at defendant’s suppression hearing, when the police at the scene asked the defendant where the gun was, he responded that he did not have a gun, but that he had used a toothbrush. No gun was ever found, but a white toothbrush was discovered in defendant’s coat pocket.

The testimony at trial concerning defendant’s use and possession of a weapon was not overwhelming. The station attendant from whom the money was taken did not see the alleged gun, and although a second attendant testified that he was certain that a gun was used in the incident, he could not identify the defendant as the perpetrator. Additionally, the two police officers who arrived at the scene of the crime were able only to say that defendant had a cylindrical object in his hand. A fourth witness, also not certain that defendant had a gun, testified that the perpetrator held a sharp metallic object. Furthermore, an officer who had processed defendant’s arrest testified that “[defendant] advised me he did not have a "gun; that he had a toothbrush in the pocket of his coat”. This statement was also referred to on summation by the prosecutor, who told the jury: “It’s for you to decide whether the defendant used a toothbrush or a shotgun or a handgun or a weapon”. Based upon all of the foregoing, the defendant made a request for a charge of the lesser included offense of robbery in the second degree and for a charge on the affirmative defense to robbery in the first degree as provided in subdivision 4 of section 160.15 of the Penal Law. Both of these requests were refused.

The court submitted to the jury the charges of robbery in the first degree and robbery in the third degree as a lesser included offense. “A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime * * * he * * * [djisplays what appears to be a pistol * * * or other firearm” (Penal Law, § 160.15). However, it is an affirmative defense to robbery in the first degree that such pistol or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged (Penal Law, § 160.15, subd 4).

In view of the evidence introduced at trial, under the circumstances of this case it was reversible error for the court to refuse defendant’s request to charge the jury regarding this affirmative defense. Without the benefit of the requested charge, the jurors may well have believed that defendant had committed the robbery with a toothbrush, yet also believed that it was their duty to find him guilty of robbery in the first degree because the toothbrush which he displayed appeared to be a pistol.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.

       If, of course, a defendant successfully proves his affirmative defense, he may still be found guilty of robbery in the second degree, which requires only that the defendant forcibly steal property while displaying what appears to be a firearm (Penal Law, § 160.10, subd 2, par [b] ; Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 160.15, p 206).


text:
    Timberline Electric Supply Corp., Appellant, v Insurance Company of North America, Respondent.
    Argued November 21, 1980;
    decided December 22, 1980

      APPEARANCES OF COUNSEL

      Thomas L. Jones and William J. Kirk for appellant.

      Robert A. Small for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (72 AD2d 905).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Frank Fallica et al., as Members of the Board of Fire Commissioners of the Holtsville Fire District, Respondents-Appellants, v Town of Brookhaven et al., Appellants-Respondents.
    Argued November 20, 1980;
    decided December 22, 1980

      APPEARANCES OF COUNSEL

      Martin J. Kerins, Town Attorney (Benjamin L. Herzweig of counsel), for appellants.

      Frederic Block and JoelM. Markowitz for respondents.
   OPINION OF THE COURT

Order modified, with costs to defendants, by reinstating the first and third decretal paragraphs of the judgment of Supreme Court, Suffolk County, for reasons stated in the dissenting opinion by Mr. Justice Leon D. Lazer at the Appellate Division (69 AD2d 579, 598-604) and, as so modi- . tied, affirmed.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Delia Laffey, Appellant, v City of New York, Respondent.
    Submitted November 21, 1980;
    decided December 22, 1980

      APPEARANCES OF COUNSEL

      Sol Gelman for appellant.

      Allen G. Schwartz, Corporation Counsel (Fay Leoussis and Carolyn E. Demarest of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (72 AD2d 685) (see, also, Keel v Parke, Davis & Co., 50 NY2d 833).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Clyde Collins, Jr., Appellant, v Edward R. Hammock, as Chairman of the New York State Board of Parole, et al., Respondents.
    Argued November 19, 1980;
    decided December 22, 1980

      APPEARANCES OF COUNSEL

      Kenneth G. Varley for appellant.

      Robert Abrams, Attorney-General (Frederick R. Walsh and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified as hereafter indicated and, as so modified, affirmed, without costs.

Petitioner sought a new parole release hearing based upon a number of claimed errors in the procedure followed by the superintendent and the board. Special Term held that two of three disciplinary violations erroneously relied on in. denying parole should be expunged.from petitioner’s record and that his criminal history score should have been computed at, and should be reduced to* eight rather than nine, but concluded that no error had been committed that warranted ordering a new parole hearing. The judgment entered simply dismissed the petition, however, and contained no direction for expunction or correction of the record.

On appeal to us petitioner argues for the first time that no verbatim record of the board proceedings was made as required by subdivision 6 of section 259-i of the Executive Law, that he was denied the opportunity to prepare for the hearing by seeking employment so that he could present a work plan, that the board improperly considered the third disciplinary violation, and that those errors required a new hearing.

The verbatim record point was not raised below and is not borne out by the record on this appeal, which shows that petitioner was offered but declined the opportunity to obtain the hearing record and thus establishes inferentially that such a record was made. The work plan argument, as the courts below have held, was not sustained factually. Nor was there error in not requiring a new hearing, for the board is directed by subdivision 2 of paragraph (c) of section 259-i to consider the inmate’s institutional record and met its obligation under paragraph (a) of informing petitioner in writing of the reasons for denial of parole. Moreover, both reasons given (“Serious Disciplinary Record” and “unsatisfactory parole plan”) find support in the record.

Special Term erred in two respects, however. First, it held that the board could consider discipline for stealing notwithstanding that petitioner had not received a copy of the institutional rules and regulations at the time of the incident. It reasoned that he, having been convicted of robbery, knew that stealing was forbidden notwithstanding that he had not received the required copy. That reasoning would be a sufficient predicate for prosecution under the Penal Law, but fails to meet the specific requirement of subdivision 5 of section 138 of the Correction Law that “No inmate shall be disciplined except for a violation of a published or posted rule or regulation, a copy of which has been provided the inmate” (emphasis supplied). In the face of that specific requirement petitioner’s knowledge of the Penal Law furnished no basis for discipline. None of the three disciplinary violations should have been considered, therefore.

The second error of Special Term was in failing to include in its judgment the directions for expunction and correction which its opinion indicated should be made. The judgment should, therefore, be modified to direct that the three violations referred to by Special Term be expunged from petitioner’s record and that his prior criminal history score be corrected from nine to eight.

Accordingly, the order of the Appellate Division should be modified to direct modification of Special Term’s judgment as above set forth. As so modified, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Joseph Colarco, Appellant.
    Argued November 21, 1980;
    decided December 22, 1980
    APPEARANCES OF COUNSEL

      Elaine T. Stogel, William E. Hellerstein and Michael A. Ciaffa for appellant.

      Mario Meróla, District Attorney (Peter D. Coddington and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. Defendant failed to request curative instructions (see People v Dawson, 50 NY2d 311).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Bernard Smith, Appellant.
    Argued November 14, 1980;
    decided December 22, 1980
    APPEARANCES OF COUNSEL

      Philip L. Weinstein and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Donald J. Siewert and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted for a new trial.

Defendant Smith and his codefendant were charged with assault in the first degree and criminal possession of a weapon in the fourth degree as a result of an incident in which they allegedly participated in the stabbing of one Jerry Mayer, an Australian businessman, as Mayer was attempting to escort his companion, Sylvia Gutloff, to her front door. The undisputed evidence at trial indicated that Mayer’s two assailants were accompanied by two other individuals who were never apprehended. Defendant was ultimately convicted of first degree assault, and his conviction was affirmed, without opinion, by the Appellate Division. We now conclude that the conviction must be reversed because of two serious trial errors which remained uncorrected despite defendant’s specific and timely objections.

The first such error occurred when the District Attorney, in an apparent effort to establish a motive for the stabbing, elicited from the witness Gutloff that immediately after the stabbing she heard one of the four in the group of assailants make a rather crude racial remark to the effect that whites were not welcome in the neighborhood. Although defense counsel promptly objected on the grounds that the statement was “inflammatory” and that no proper foundation had been laid for its admission, the trial court ruled the statement admissible on the theory that it was part of the “res gestae”. The District Attorney subsequently capitalized upon the admission of this statement when, over defense counsel’s objection, he made reference to it in his summation in an attempt to explain defendant’s motive to the jury.

The rulings of the Trial Judge with respect to this out-of-court statement were clearly erroneous. Even if it be assumed that the statement was technically admissible under the so-called “res gestae” exception to the rule against hearsay, itself a somewhat dubious proposition (see Richardson, Evidence [10th ed — Prince], §§ 279-292), the statement should nevertheless have been excluded in this case, because there was no proof concerning which of the four individuals who were present during the incident had actually made the statement. Indeed, upon cross-examination, Gutloff acknowledged that she simply could not identify the source of the racial remark from her own observations.

Inasmuch as there was no proof that defendant was the person who uttered the statement in question, the statement cannot be considered probative on the important issue of defendant’s motive. There was no indication on the record that the foursome which accosted Mayer and Gutloff shared a common purpose, and it was therefore logically impossible for the jury to have drawn a fair inference as to defendant’s motive from a remark that could have been made by any one of the four. On the other hand, the admission of this irrelevant statement might well have prejudiced defendant’s case in the minds of the jurors, since it was, as defendant contends, highly inflammatory and capable of arousing a juror’s inchoate fears about urban racial violence. In view of the District Attorney’s utter failure to establish the probative value of the statement, it was clear error for the trial court to admit it in evidence.

The second trial error upon which we base our reversal occurred during defense counsel’s cross-examination of the witness Gutloff when Gutloff volunteered that “one of [her] relatives [had] got [ten] hurt by one of the defendants.” Although both defense attorneys argued that Gutloff’s statement was completely “unresponsive” and urged the court to take immediate curative action, the Trial Judge allowed the statement to remain on the record, concluding only that it was “irrelevant”. Even more seriously, the Trial Judge prevented defense counsel from using the remainder of his cross-examination of the witness to explore or challenge Gutloff’s highly damaging but unsupported assertion. And, the error was only further compounded on the following day of the trial, when the court persisted in its refusal to take curative steps even after it was informed by defense counsel that he had learned through the office of the District Attorney that defendants were not at all involved in the incident to which Gutloff had referred and that, in fact, both defendants had been in jail at the time of the incident.

The trial court’s actions in connection with this matter can only be regarded as an abuse of discretion. By refusing either to expunge the highly prejudicial remark from the record or to permit defense counsel to pursue the. matter further in the presence of the jury, the trial court effectively deprived defendant of any opportunity to eliminate or minimize the obvious implication that defendant or his accomplice had committed an uncharged crime against a relative of the prosecutor’s prime witness. Moreover, we find the error in depriving defendant of his right to cross-examine particularly egregious in this case, since the error went uncorrected even after the trial court was made aware of the falsity of the witness’ assertion.

In view of the seriousness of these two errors, we cannot allow the conviction to stand. The admission of an irrelevant, but highly inflammatory statement, coupled with the trial court’s refusal to permit defense counsel to cross-examine the People’s witness concerning a damaging and apparently false assertion, operated to deprive defendant of his fundamental right to a fair trial. Consequently, the conviction must be reversed.

Wachtler, J.

(dissenting). This case involves an unprovoked and senseless attack on one member of an interracial couple, late at night on a city street. It was, to borrow a phrase from the majority, “capable of arousing a juror’s inchoate fears about urban racial violence.” The majority, however, does not find the evidence of the crime objectionable. What it finds inflammatory and reversible error is the fact that the black woman companion of the victim was permitted to testify, over objection, that after the white victim had staggered back to the taxi, and they were about to leave for the hospital, someone in the defendant’s group shouted, “We don’t want no white mother f — ers on 100th Street.”.

Although the statement does indeed show a racial motive for the assault, that alone provides no basis for excluding it from the jury’s consideration. The People are entitled to show a defendant’s motive, even though it may involve evidence of racial hatred (see, e.g., People v Moore, 42 NY2d 421, 428-429). This, of course, is inflammatory, but that is generally true of any motive. Criminal acts, particularly street assaults are not motivated by the highest principles.

The victim is an Australian businessman who, while visiting New York City in 1976, met Sylvia Gutloff at a birthday party in a Manhattan bar. At approximately 2 o’clock in the morning he escorted her home by taxi. On the sidewalk in front of the building adjoining hers, Gutloff saw four black youths including the defendant, who had long lived in the neighborhood, had gone to school with her and whose sister was a friend of hers. The victim accompanied her to the vestibule and, while standing there, she saw four “shadows” pass across the front of the door. As the victim left two of the four youths grabbed him and began punching him. He broke away and ran across the street to a vacant lot, pursued by the defendant and another. There they grabbed him again, near a street light, and while one of them held his arms behind his back, the other stabbed him in the chest. They made no effort to take anything from him; as he fell to the ground they simply walked away and stood next to their two companions.

After going with the victim to the hospital, Gutloff returned with the police who found the defendant and three others standing in a nearby doorway. Two of them, including the defendant, were arrested and charged with assault and criminal possession of a weapon.

That the defendant was motivated by hatred may, of course, be shown by statements he has made (Richardson, Evidence [10th ed — Prince], § 288). But this may also be established circumstantially by his close association with others who hated the victim personally or as a member of a class (see, e.g., People v Moore, 42 NY2d 421, supra; 2 Wigmore, Evidence, § 390, p 426; cf. 6 Wigmore, Evidence, § 1791, p 326).

An excited utterance made at the time of a startling event is generally considered trustworthy, even if made by one who was only a bystander (People v Caviness, 38 NY2d 227). In this case, if the defendant did not make the statement it was made by his codefendant or one of the two youths who did not actively participate in the assault. They were more than bystanders who could only be reasonably expected to describe the physical events they observed. They were defendant’s companions at 2 o’clock in the morning on an otherwise deserted city street. They moved with him as a group to the doorway and were waiting there when the victim came out. They stood again as a group when one of them announced that the assault was meant as a warning to instrusive whites. If they were not actually conspirators, it would nevertheless be incredible to believe that they were not, at least, privy to the defendant’s motives. Thus the trial court did not err in permitting the jury to hear the remark made by the defendant or his companions showing that the assault was racially motivated.

By fine tuning the rules of evidence, and taking an unrealistic view of what is relevant or probative in cases involving street violence, the court may succeed in removing the spectre of urban racial violence from the courtroom; however, those who commit crimes of violence out of racial hatred should not be permitted, in court, to conceal their motives behind unrealistic rules of evidence.

The order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Gabrielli, Jones, Fuchsberg and Meyer concur in memorandum; Judge Wachtler dissents and votes to affirm in an opinion in which Judge Jasen concurs.

Order reversed, etc.

      . The dissenters’ reliance upon People v Moore (42 NY2d 421) is misplaced. In that case, we permitted the People to establish the defendant’s motive circumstantially through the introduction of literature and statements published by a militant organization of which the defendant was an active member. It was not disputed, however, that the defendant in Moore shared the goals and motives of the organization; rather, the argument on appeal in that case was limited to the question whether the evidence was admissible for the purpose of proving motive even though “it reflected on the defendant’s character” (at p 428). Here, in contrast, there has been no showing at all that the four individuals who allegedly were present at the scene of the assault constituted a cohesive group with shared beliefs and purposes. Hence, in this case, the statements of one of the members of the group cannot be used as circumstantial evidence to establish defendant’s individual motive.

      . We find somewhat puzzling the dissenters’ assertion that defendant failed to raise his right to cross-examine the witness Gutloff in a timely manner at the trial (see p 808). Immediately after the Trial Judge directed defense counsel to abandon his attempts to cross-examine Gutloff about her allegation, defense counsel stated his position in the following manner:
      “I want to make a full record on this, Judge, please. I had asked [Gutloff] when she had [first made the accusation]. Now, your Honor said at the bench that — as I understand — that because the question was not relevant in your Honor’s view, the answer could stand. Now, first of all, I would say the answer was not responsive to the question, that it was highly prejudicial, and furthermore, your Honor, having inquired of the District Attorney * * * I now know for a fact that this incident which allegedly occurred between Miss Gutloff and her family and defendants was not in fact between Miss Gutloff and her family and the defendants at all but involved the third person and it appears to me that incident occurred while both these defendants were incarcerated.
      “Now, with that knowledge, it seems patently unfair to allow that statement * * * to stand in light of the fact the Court did not allow me to go into this with the witness. If I was allowed to go into it with the witness, it could have been established that it wasn’t [defendants] who she was talking about, but some third individual. She may think it was on the part of [defendants]. That’s her opinion but there’s no facts to back that up.
      “So her conclusion and statements to the jury that [defendants] hurt her and her family was false and highly prejudicial. And I’m requesting the Court instruct the jury to disregard it, or in the alternative, to recall the witness and allow us to cross-examine her with respect to it. My first application, of course, is for a mistrial” (emphasis supplied).
      In light of the foregoing, it is difficult to imagine how defense counsel could have made plainer his objection to being deprived of all opportunity to cross-examine the witness concerning her allegation that defendants had “hurt” one of her relatives.

      . After spending about a week in the hospital the victim recovered from the stab wound and a partially collapsed lung, and returned to Australia. He did not testify at the trial.

      . The other contention raised by the majority that the defendant was denied his right of confrontation with respect to testimony “impliedly” accusing him or his codefendant of an uncharged crime, for having “hurt” one of the witness’ relatives, was never raised at trial. There the defendant’s only argument was that this particular testimony was “unresponsive” to a question asked. Thus the issue which the defendant raises on appeal does not present a question of law for our review because the court did not rule on it and was not given an opportunity to consider the alleged implication at a time when the claimed error could have been avoided or corrected (GPL 470.05; cf. People v Thomas, 50 NY2d 467).