text:
    [646 NE2d 785, 622 NYS2d 483]
    The People of the State of New York, Respondent, v Clive Spencer, Appellant.
    Argued November 29, 1994;
    decided January 17, 1995

      POINTS OF COUNSEL

      Jay H. Schwitzman, Brooklyn, for appellant.
    The stop of appellant’s vehicle was a violation of the Fourth Amendment of the United States Constitution that protects individuals from unreasonable searches and seizures. (People v De Bour, 40 NY2d 210; People v Ingle, 36 NY2d 413; People v Sobotker, 43 NY2d 559; People v John BB., 56 NY2d 482, 459 US 1010; People v May, 81 NY2d 725; Delaware v Prouse, 440 US 648.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Roseann B. MacKechnie, Bruce D. Austern, Victor Barall and Anthea H. Bruffee of counsel), for respondent.
    The police officers’ conduct in stopping defendant’s car to determine whether defendant — who himself was not the target of any individualized suspicion — knew the location of a person, who had recently committed an armed assault, was reasonable under the circumstances. Therefore, the lower courts’ finding to that effect is a mixed question of law and fact which is beyond this Court’s review. (People v Harrison, 57 NY2d 470; People v Bing, 76 NY2d 331; Florida v Jimeno, 500 US 248; People v De Bour, 40 NY2d 210; People v Ingle, 36 NY2d 413;
      Terry v Ohio, 392 US 1; Camara v Municipal Ct., 387 US 523; People v Cantor, 36 NY2d 106; People v Kuhn, 33 NY2d 203; Brown v Texas, 443 US 47.)
   OPINION OF THE COURT

Ciparick, J.

The question presented is whether the police may stop a moving vehicle in order to request information of the driver concerning the whereabouts of a criminal suspect. We conclude that the stop in this case was an unreasonable seizure within the meaning of the Fourth Amendment.

I

On May 17, 1989, Police Officers Edward Alongé and Donald Conceicao were on routine patrol in a marked radio car when they received a radio report that a woman had been assaulted with a gun by her boyfriend the previous day. At 11:20 p.m., the officers picked up the complainant and, with her in the car, drove around the neighborhood searching for the suspect. According to the testimony of Officer Alongé, they drove around for "No more than four or five minutes” before the complainant saw defendant seated behind the wheel of a double-parked car and stated that he was a friend of her boyfriend’s and that the latter might be nearby. At this time, defendant’s vehicle began moving. The officers followed defendant and pulled him over using their turret lights and car horn. Defendant halted his vehicle on the next block and both officers approached the car carrying lighted flashlights. As the officers drew near they observed a female passenger. Upon shining their flashlights into the interior of the vehicle, the officers observed at the passenger’s feet a clear plastic bag containing green vegetable matter which they believed to be marihuana. The officers asked defendant and his passenger to exit the vehicle.

While defendant was outside the vehicle, Officer Alongé observed the butt of a revolver protruding from underneath the driver’s seat on the floor of the car. The officers determined that the gun was loaded and placed defendant under arrest. They permitted the passenger to leave the scene after defendant asserted she had nothing to do with the alleged marihuana. Defendant was charged with criminal possession of a weapon in the third degree and criminal possession of marihuana in the fourth degree.

Defendant moved to suppress the physical evidence on the ground that its seizure violated his constitutional rights. The suppression court denied defendant’s motion, finding that the police officers in this case had a right to request information of defendant and could stop his car in order to effectuate that right. The court stated: "at the time the police resolved to exercise their right to request information, defendant’s vehicle was in motion. Under these circumstances, common sense demands that they be permitted to stop it.”

The Appellate Division affirmed, holding that the police acted reasonably in stopping defendant’s car to request information concerning a suspect’s whereabouts. The Court relied principally on People v John BB. (56 NY2d 482, cert denied 459 US 1010), in which we held that an automobile stop made pursuant to a uniform, nonarbitrary, roving roadblock was constitutionally permissible.

On this appeal, defendant argues that the Appellate Division erred in holding that the police could validly stop his vehicle in order to request information of him. We agree and therefore reverse.

II

Although the right to stop a vehicle is generally analogous to the right to stop a pedestrian, police/motorist encounters must be distinguished from police/pedestrian encounters when the police are operating on less than reasonable suspicion. This is because "the obvious impact of stopping the progress of an automobile is more intrusive than the minimal intrusion involved in stopping a pedestrian” and constitutes "at least a limited seizure subject to constitutional limitations” (People v John BB., 56 NY2d 482, 487, supra), whereas the common-law right of inquiry — much less the right to request information— does not include the right to unlawfully seize (see, People v Sobotker, 43 NY2d 559, 563; People v Ingle, 36 NY2d 413, 418).

We have stated, time and again, that the stop of an automobile is a seizure implicating constitutional limitations (People v May, 81 NY2d 725; Sobotker, 43 NY2d 559, supra; Ingle, 36 NY2d 413, supra; see, Delaware v Prouse, 440 US 648, 653 ["stopping an automobile and detaining its occupants constitute a 'seizure’ within the meaning of (the Fourth Amendment), even though the purpose of the stop is limited and the resulting detention quite brief’]). Contrary to the urging of the dissent that we allow preventative "informational stops” so long as some articulable basis exists for that interference, police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime (see, People v Harrison, 57 NY2d 470, 476 [an automobile stop is "a limited seizure of the person which at least requires reasonable suspicion”]; Sobotker, 43 NY2d, at 563; Ingle, 36 NY2d, at 417-420).

We reaffirmed these principles recently in People v May (81 NY2d 725, supra), where the defendant and a female companion were sitting in a parked car on a deserted street known for criminal activity. When two police officers in a patrol car approached with red turret lights and a spotlight, defendant started his car and slowly pulled away. Defendant was ordered to pull over. We held that the police officers’ premise for that order — the common-law right of inquiry — did not satisfy Fourth Amendment standards: "the stop was proper only if the officers had a reasonable suspicion of criminal activity” (id., at 727).

Of course, nothing prevented the police in May from making a common-law inquiry of the individuals in the vehicle while they were still parked, based on the second level "founded suspicion that criminal activity is afoot”, which permits interference "with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (People v De Bour, 40 NY2d 210, 223). But we have made clear that the right to stop a moving vehicle is distinct from the right to approach the occupants of a parked vehicle (see, Harrison, 57 NY2d 470, supra [police needed only articulable basis to approach parked car and request information but, absent reasonable suspicion, officers could not forcibly detain or constructively stop defendants by ordering them to remain in car]). Thus, once the defendant in May indicated his unwillingness to speak to the officers by pulling away, they should not have forced him to stop absent a reasonable suspicion of criminal activity (May, 81 NY2d, at 728). "Any other rule”, we stated, "would permit police seizures solely if circumstances existed presenting a potential for danger” (id., at 728).

Clearly, as in cases involving the forcible detention of pedestrians, the instant stop of defendant was a seizure. At the moment defendant was pulled over the encounter lost the consensual characteristics which mark permissible first level intrusions under the De Bour four-part test (see, People v De Bour, 40 NY2d 210, supra). The question we must address in this case is whether that seizure was reasonable.

Ill

The reasonableness of a seizure must be judged "by balancing its intrusion on the Fourth Amendment interests of the individual involved against its promotion of legitimate governmental interests” (People v Scott, 63 NY2d 518, 525; People v John BB., supra; Delaware v Prouse, supra). Important factors in that balancing analysis are the effectiveness of the procedure in relation to the governmental interest to be promoted, and "the degree of intrusion of the procedure on the individual subjected to it, measured in terms of both its subjective effect and the degree of discretion vested in the officials charged with carrying it out” (Scott, 63 NY2d, at 525, supra).

Applying this balancing analysis to the instant case, we conclude that the nature and degree of the police intrusion outweighed the governmental interest at issue. It is not enough, contrary to the dissent’s view, that articulable governmental interests supported the stop. While the nature and degree of the governmental interest at issue here — investigation and detection of past criminal conduct — is undoubtedly significant, it does not implicate the same important social objectives that are at issue when police are investigating recent or ongoing suspected criminal activity (see, United States v Hensley, 469 US 221, 228).

In United States v Hensley (469 US 221, supra), the Supreme Court upheld the Terry stop of an individual based on a "wanted flyer” indicating that the defendant was a suspect in a past robbery. Nevertheless, the Court addressed the nature of the governmental interest implicated by the investigation of past criminal activity and made an important distinction that is relevant here:

"The factors in the balance may be somewhat different when a stop to investigate past criminal activity is involved rather than a stop to investigate ongoing criminal conduct. This is because the governmental interests and the nature of the intrusions involved in the two situations may differ. As we noted in Terry, one general interest present in the context of ongoing or imminent criminal activity is 'that of effective crime prevention and detection.’ * * * A stop to investigate an already completed crime does not necessarily promote the interest of crime prevention as directly as a stop to investigate suspected ongoing criminal activity. Similarly, the exigent circumstances which require a police officer to step in before a crime is committed or completed are not necessarily as pressing long afterwards. Public safety may be less threatened by a suspect in a past crime who now appears to be going about his lawful business than it is by a suspect who is currently in the process of violating the law. Finally, officers making a stop to investigate past crimes may have a wider range of opportunity to choose the time and circumstances of the stop.” (469 US, at 228-229.)

Not only is the dissent unwilling to acknowledge that stopping an automobile for the purpose of determining whether its occupants can provide information implicating others in past criminal activity involves a less substantial governmental interest than is at issue when the police are involved in actual crime prevention, it blurs the distinction between current or imminent, and past criminal activity.

The dissent’s efforts at highlighting the urgency of gathering fresh information on the violent felon’s then whereabouts and the prevention of further violence (see, dissenting opn, at 762) are belied by the record. The record is absolutely devoid of any evidence justifying the inference that the complainant, or anyone else for that matter, was in danger of further harm from the suspect. There is similarly no indication that the complainant had ever been assaulted by the suspect before this incident. Nor is there any evidence to support the inference that the suspect was "armed and dangerous” 43 hours later.

The circumstances of this case — including the 43-hour time lapse between the alleged assault and defendant’s stop, and the fact that the officers had not even searched for the suspect at his own home when they decided to stop defendant on the premise that he was a possible or even probable source of information regarding the suspect’s whereabouts — clearly do not warrant a "preventative governmental interest in the stop” (see, dissenting opn, at 762) and render the police activity unreasonable.

Beyond the fact that the police were investigating past criminal conduct here, the dissent also fails to appreciate that "the Fourth Amendment does not permit the stopping of potential witnesses to the same extent as those suspected of crime” (3 LaFave, Search and Seizure § 9.2 [b], at 354 [2d ed]). In United States v Ward (488 F2d 162), FBI agents, using sirens, pulled the defendant over in order to question him privately concerning some Federal fugitives. The court held that the seizure, which resulted in the agents’ recovering a false selective service registration card from the defendant, was unreasonable:

"First, there was no crime 'afoot.’ The FBI agents did not stop appellant’s car in connection with any particular crime, but rather the stop was pursuant to a general criminal investigation that had begun several months before. There was no emergency situation nor any need for immediate action. The FBI was not fearful that the appellant would leave town. The agents never sought an interview with the appellant at either his home or place of business although both could have been arranged. In short, there were no exigent circumstances warranting the extreme nature of a vehicular stop by a siren on a public street. * * *
"Finally, and most significantly, the stop was not made pursuant to the agent’s founded suspicion that the detainee was involved or about to be involved in criminal activity. Rather, the stop was made for the purpose of questioning the appellant about a third person. This then was not a '. . . brief stop of a suspicious individual [made] in order to determine his identity or to maintain the status quo momentarily . . .’ Adams v. Williams, 407 U.S. 143, 146 * * * (emphasis added), for the appellant was not the object of the FBI’s suspicions. Clearly, the narrow exception of Terry v. Ohio * * * which allows investigative stops on grounds short of probable cause cannot be stretched so far as to allow detentive stops for generalized criminal inquiries” (Ward, 488 F2d, at 169-170).

Crucial to the holding in Ward, and here also, is the absence of a crime "afoot.” Similarly, there is no indication here that the officers reasonably believed the suspect was about to disappear, thus permitting them to briefly stop defendant in order to "freeze” an ongoing or dangerous situation and acquire more information in contemplation of further action. The record is devoid of any indication that the suspect presented an imminent threat to public safety. Moreover, it should be noted that when defendant was pulled over, the officers had been circling the same neighborhood for only 4 or 5 minutes, obviously expecting to find the suspect in the same vicinity where the complainant had recently observed him; nevertheless, the officers stopped defendant, because, in Officer Alonge’s words, "he might possibly know” the suspect’s whereabouts, even though they had not even looked in the same "Jerk Chicken” restaurant where the complainant had actually and recently spotted the suspect.

In short, under the circumstances of this case, there was no genuine need for so immediate and intrusive an action as pulling over defendant’s freely moving vehicle. When the governmental interest in finding and apprehending the suspect in this case is considered in relation to the effectiveness of the procedures chosen to promote it, the intrusiveness of pulling over defendant’s freely moving vehicle cannot be justified (see, Scott, 63 NY2d, at 525, supra). Considered objectively, the law enforcement benefits that would accrue to the government on these facts by stopping an individual vehicle on the ground that its occupants might know the whereabouts of an individual suspected of past criminal activity are marginal. Indeed, less intrusive alternatives could have been employed here.

"[T]he Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers” (Brown v Texas, 443 US 47, 51; see, Scott, 63 NY2d, at 525, supra). We need not and do not hold today that police officers may never stop a vehicle in order to request information of its occupants. We merely hold that the specific, objective facts of this case did not justify defendant’s seizure. The governmental interest at issue in this case must be considered in context. This case involved: the investigation of past criminal activity; the stop of a third person not suspected of criminal activity; the absence of exigent circumstances justifying immediate police action; the availability of less intrusive alternatives; and, the candid testimony of the officers, who considered defendant no more than a possible source of information.

IV

Quite apart from the question of intrusion, the instant seizure is also unreasonable when measured in terms of the degree of discretion vested in the officials charged with carrying it out (see, Scott, 63 NY2d, at 525, supra). The act of forcibly pulling defendant over resulted from the unchecked discretion of the particular officers involved. It must be kept in mind that this defendant was not the subject of individualized suspicion. In the absence thereof, other safeguards are necessary to ensure that his reasonable expectation of privacy is not subject solely to the discretion of the police. In this case, there were no objective safeguards circumscribing the exercise of police discretion. The stop of defendant was standardless and unconstrained. Nor can we accept the People’s urging that the police officers acted in good faith. Subjective good faith, standing alone, is not enough.

Our decision in People v John BB. (56 NY2d 482, supra), also involving a suspicionless stop, does not support a contrary result, because other safeguards were present in that case. We held in John BB. that the Fourth Amendment does not prohibit the police from employing a roving roadblock in a sparsely populated area beset by burglaries where vehicles are stopped pursuant to a "nonarbitrary, nondiscriminatory and uniform procedure” for the purpose of ascertaining the identity of the occupants and obtaining information concerning criminal activity in the area (id,., at 488).

There are two crucial distinctions between John BB. and the instant case. First, the level of intrusion on the motorists’ Fourth Amendment rights in John BB. was arguably minimal given that all motorists were being stopped in an impersonal, random manner and no individual vehicle was singled out. The second vital distinction, also arising from the nature of the procedure utilized, was the elimination of "the element of arbitrariness”, which we noted had been identified "time and again as a critical factor in determining the reasonableness of official investigative activity of an intrusive nature” (id., at 488). The nonarbitrary, systematic stopping of vehicles in John BB. insured that the procedures employed by the police did not unfold in a manner resting solely upon the officers’ discretion.

Unlike John BB., this case evidences a complete lack of objective standards circumscribing the exercise of discretion by the individual officers involved in making the stop. Clearly, John BB. was improperly relied upon by the Court below.

"The exclusionary rule has as an objective the social benefit of deterring unlawful police conduct.” (People v Wesley, 73 NY2d 351, 354.) The rule’s contours are based in a social policy judgment which "necessarily entails balancing the cost of the loss of probative evidence against the gain in deterring lawless police conduct.” (Id., at 355.) In the circumstances of this case, when the foreseeable deterrent effect against unlawful police conduct is fairly balanced against the adverse impact of suppression upon the truth-finding process, the scale tips decidedly in favor of suppression. If the instant stop were permissible and motorists could in fact be pulled over at an individual police officer’s discretion based upon the mere right to request information, a pandora’s box of pretextual police stops would be opened.

Finally, we fail to discern the logic underlying the Appellate Division’s conclusion that "[t]here is a marked and critical distinction between this case and those in which the person whose vehicle is stopped is the target of the investigative questioning” (193 AD2d 90, 96). It would be quite an anomalous rule of law if the free movement of persons who are the targets of investigative questioning could not be interrupted without reasonable suspicion (see, Sobotker, 43 NY2d, at 563-564; Ingle, 36 NY2d, at 418), but ostensibly law-abiding citizens under no suspicion could be pulled over any time the police had reason to believe they might have information relevant to a past crime. The Fourth Amendment does not require such convoluted jurisprudence.

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

Levine, J.

(dissenting). We respectfully dissent. Patrolling in the course of their investigation of an armed, felonious assault by the victim’s estranged boyfriend, the police, accompanied by the victim, encountered defendant in his automobile. The victim assured them defendant would know the perpetrator’s immediate whereabouts. The police signaled defendant to stop his moving vehicle in order to obtain that information from him. The police did nothing more than activate their car’s turret lights and horn, and then approach defendant on foot without drawing their weapons. The majority condemns this straightforward, restrained response to the direct, immediate information obtained from the victim as an unreasonable seizure in violation of defendant’s rights under the Fourth Amendment. We disagree.

The majority arrives at this result by purporting to apply the balancing test of People v Scott (63 NY2d 518) and People v John BB. (56 NY2d 482, cert denied 459 US 1010). Those cases hold that the validity of an informational vehicular stop by the police, such as here, on less than individualized suspicion of criminal activity of an occupant of the vehicle, is dependent on its "reasonableness”, to be determined on a case-by-case basis by balancing the particular intrusion on the privacy interests of the individual involved against the State’s legitimate interest in the inquiry (see, People v Scott, supra, at 525; People v John BB., supra, at 487).

In finding the police conduct unreasonable here, the majority’s balancing analysis, in our view, lacks objectivity. It denigrates the State’s legitimate interest in likely gaining important information from defendant, exaggerates the intrusiveness of the stop on defendant’s privacy interest and ignores the findings of the lower courts, supported by evidence in the record, that the police conduct "was not arbitrary [nor] based on mere whim, caprice, or idle curiosity. It was based on information supplied by the victim of the crime who knew the perpetrator, Bloomfield; knew the defendant; knew that the defendant knew Bloomfield, and believed that the defendant would know where Bloomfield was” (193 AD2d 90, 95-96 [emphasis supplied]).

In actuality, there is no balancing by the majority here. Vehicular stops not based on reasonable suspicion of criminal activity of an occupant are strictly limited to (1) "nonpretextual traffic checks to enforce traffic regulations” (majority opn, at 753); (2) the existence of some undefined but apparently extreme or absolute exigency for police action while engaged in prevention of ongoing criminal activity (majority opn, at 754-755, 757-758); and (3) stops pursuant to a nonarbitrary, nondiscriminatory uniform procedure (majority opn, at 758). A rigid, restrictive code of police conduct has been applied by the majority here, in spite of our holding in People v John BB. that "[t]he indefiniteness of the term 'unreasonable’ [in the Fourth Amendment] militates against the construction of a general rule of universal application for determining the validity of official intrusions of this nature” (56 NY2d, at 487, supra).

The evidence at the suppression hearing established that the complainant first filed her charge against Dion Bloomfield, her estranged boyfriend, on May 16, 1989, accusing him of striking her in the mouth with a pistol (breaking a tooth) at 4:00 a.m. that day. According to her testimony at the hearing, she was instructed by the police to call them if she saw her assailant. During the evening of May 17, she saw the boyfriend at a neighborhood restaurant, the "Jerk Chicken.” She called the police and it was in response to that call that the arresting officers picked her up and began circling the neighborhood to look for her assailant, to no avail. However, they did spot defendant’s car double parked in the vicinity of the Jerk Chicken. Just as defendant’s car pulled away, according to the complainant, she informed the officers, "that’s Dion['s] friend. If he’s around, then Dion should he around” (emphasis supplied). It was this information that was the basis for the police action in following and then signaling defendant to stop his vehicle. The hearing court’s undisturbed finding was: "[b]elieving that [defendant] would furnish information as to [the boyfriend-assailant’s] whereabouts, [the officers] followed his car. They activated their turret light and car horn to stop defendant’s car” (emphasis supplied).

The foregoing facts establish the reasonableness of the limited seizure which occurred here, on any fair application of the balancing analysis mandated by the Supreme Court and our own case law. First, the governmental interest in stopping defendant’s vehicle for information on the assailant’s whereabouts was substantial. Even if we were to accept the majority’s characterization of that interest as strictly limited to the "investigation and detection of past criminal conduct” (majority opn, at 754), undeniably, the past criminal conduct here was a violent felony, committed only some 40 hours earlier, and the police were entitled to presume that the perpetrator remained in illegal possession of the deadly weapon used against the victim. United States v Hensley (469 US 221), relied upon by the majority to minimize the governmental interest here, is actually directly instructive on the justification for the stop under the uncontested facts just described:

"Particularly in the context of felonies or crimes involving a threat to public safety, it is in the public interest that the crime be solved and the suspect detained as promptly as possible. The law enforcement interests at stake in these circumstances outweigh the individual’s interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes” (id., at 229).

Moreover, as the Appellate Division recognized, there was more of a compelling governmental interest here than the mere detection of past criminal activity. The perpetrator was an armed and dangerous person. The crime he committed was not a random street assault, but arose out of a romantic relationship which had turned hostile and sufficiently perilous to the victim that her mother caused her to file a criminal complaint. The victim, following instructions from the police upon her prompt report of the crime the day before, reported seeing defendant in the neighborhood earlier that evening. These facts, notably the assailant’s particularized personal hostility toward the victim and his use and continuing possession of a handgun, readily support a preventative governmental interest in the stop, in addition to the interest in detecting a past crime. In its repeated assertion that no ongoing crime was "afoot” here (majority opn, at 756; see also, id., at 754-755, 757-758), the majority pointedly ignores Dion Bloomfield’s continued criminal possession of a deadly weapon. This illustrates the flaw in the majority’s application of the balancing analysis required in a case of this kind.

Moreover, inquiring of defendant just as he left the area where the victim’s assailant had been seen earlier in the evening promised more than just the possibility of locating the assailant at some future time. Since (according to what the complainant told the police) "if [defendant’s around, then [her assailant] should be around”, questioning the defendant would indeed likely disclose information on the assailant’s then location, as found by both lower courts here. Thus, a degree of urgency was present in that the police justifiably believed that defendant would give them information on the assailant’s immediate whereabouts. These governmental interests — apprehension of a serious felony offender, prevention of further violence, seizure of an illegal handgun and the urgency of the need to obtain fresh rather than stale information on the perpetrator’s whereabouts — far exceeded the substantiality of the governmental interest in conducting the informational stop in People v John BB. "in the heavily burglarized area, in order to facilitate the concededly legitimate function of acquiring information regarding the recent burglaries” (56 NY2d 482, 488, supra).

The degree of intrusion on defendant’s privacy interest was not high here. The stop occurred well after nightfall. The activation of turret lights and use of the patrol car’s horn would appear to have been the least threatening way effectively to signal defendant to stop his vehicle, an inference confirmed by the hearing court’s finding that defendant travelled an additional block thereafter before bringing his vehicle to a halt. The officers approached defendant’s vehicle without drawing their service revolvers. They did not issue any direct order to defendant not to resume moving (cf., People v May, 81 NY2d 725). Nor did the seizure here begin to approach the level of intensity of that in People v John BB. (supra) where, as reported in the decision at the Appellate Division, the defendant’s vehicle was surrounded by three troop cars at the side, front and rear (see, People v John BB., 81 AD2d 188, 189).

Given the urgency of gathering fresh information on the violent felon’s then whereabouts as previously described, the record fully supports the suppression court’s undisturbed finding that "[u]nlike other cases where means less intrusive than a stop, such as continued observation, are available to the police in furtherance of an investigation [citations omitted], here the police officers had no alternative to the stop.” The majority’s finding to the contrary, that some unspecified less intrusive procedures were available to the police to attain their objective (majority opn, at 757), is not only beyond our powers in reviewing the findings of the lower courts, but in our view is singularly inappropriate hindsight regulation of police conduct by appellate Judges far removed from the realities of dynamic street situations that the police confront as events unfold (see, People v De Bour, 40 NY2d 210, 225).

Finally, in determining, contrary to the findings of the courts below, that the informational stop here was arbitrary and the result of "the unchecked discretion” (majority opn, at 758) of the police and, thus, was unreasonable, the majority not only once more exceeds this Court’s fact-finding powers but also commits an error of law. According to the majority, vehicular stops not based upon reasonable suspicion of an occupant’s criminal activity are arbitrary and the result of the exercise of unconstrained discretion unless an extreme, immediate exigency exists to prevent a crime in process or the stop is pursuant to a nonarbitrary, nondiscriminatory uniform procedure of stopping vehicles for a legitimate informational purpose. There is no authority whatsoever which would support the majority’s position that such an absolute exigency is a sine qua non for the validity of an informational vehicular stop, rather than just one of many factors to be considered in assessing the weight of the governmental interest served by the stop in the balancing process mandated by the decisions of our Court and the Supreme Court.

Likewise, neither our decisions nor those of the Supreme Court condemn as arbitrary and wholly discretionary all informational stops unless made pursuant to a uniform, standardized procedure, such as a border or DWI checkpoint. Indeed, the Supreme Court’s holding in Brown v Texas (443 US 47, 51) instructs otherwise:

"A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field [citations omitted]. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers” (emphasis supplied).

In the instant case, the record clearly demonstrates the existence of "specific, objective facts” justifying the police procedure employed to stop defendant, namely, (1) the police had probable cause to believe that the complainant’s former boyfriend-assailant had committed a felonious assault, was armed and potentially dangerous; and (2) the police had direct information from someone having personal knowledge of the facts that defendant would likely be capable of disclosing the assailant’s then whereabouts. Thus, far from being based on pure whim or caprice, the reliable information possessed by the police actually furnished them with a completely objective (not subjective) justification for the stop, i.e., the likelihood on the basis of independent information that questioning defendant at that time would lead to the prompt arrest of the complainant’s dangerous assailant. This is in total contrast to the stop in People v May (81 NY2d 725, supra), relied upon by the majority, where the only objective facts the police had to suspect anything were that the defendant and his female companion were parked at night in a high-crime neighborhood and pulled away when the police approached. Moreover, the specific, objective factual justification for the stop of defendant here is far greater than merely "some articulable basis” (majority opn, at 753, 754), the majority’s mischaracterization of the standard we have applied for this informational vehicular stop.

On the basis of the foregoing, the Appellate Division correctly found that the stopping of defendant’s vehicle was not arbitrary or based on whim or caprice. Rather, the police action here fully complied with the requirement of reasonableness articulated in Delaware v Prouse (440 US 648, 654) "that the facts upon which an intrusion is based be capable of measurement against 'an objective standard, ’ whether this be probable cause or a less stringent test.” The majority’s fear here is absolutely unjustified that upholding this measured, entirely reasonable and commendably decisive response to the direct, immediate information given by a victim of a violent assault, will somehow open "a pandora’s box of pretextual police [informational] stops” (majority opn, at 759). As this case demonstrates, the objective, factual basis for an informational stop is fully capable of assessment in order to insure that the police are not acting from pure whim or caprice, no less than in the case of an investigative stop of a vehicle whose occupants are suspected of criminal activity. The majority’s prophylactic restriction on completely reasonable and responsible police conduct here ironically grants elevated Fourth Amendment protection to occupants of a moving vehicle in which a citizen is traditionally held to have a diminished expectation of privacy (see, People v Scott, 63 NY2d 518, 525, supra; United States v Martinez-Fuerte, 428 US 543, 561).

After legally stopping defendant’s vehicle, the police were justified in using flashlights to illuminate the interior to insure their own safety, to seize the bag of marihuana they saw in plain view and then to place defendant under arrest.

Accordingly, we vote to affirm the order of the Appellate Division.

Chief Judge Kaye and Judges Titone and Smith concur with Judge Ciparick; Judge Levine dissents and votes to affirm in a separate opinion in which Judges Simons and Bellacosa concur.

Order reversed, etc.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [646 NE2d 1098,622 NYS2d 671]
    The People of the State of New York, Respondent, v Jose Rivera, Appellant.
    Argued January 12, 1995;
    decided February 9, 1995

      POINTS OF COUNSEL

      Frances A. Gallagher, New York City, and Philip L. Weinstein for appellant.
    Appellant was denied his constitutional right to be tried only on those charges determined by the Grand Jury to be appropriate and to receive fair notice of the charges against him by the trial court’s charge to the jury, which added an accessorial theory of liability to the theory of appellant’s liability as principal, which was set forth in the indictment. (People v Grega, 72 NY2d 489; People v Iannone, 45 NY2d 589; United States v Miller, 471 US 130; People v Rooney, 57 NY2d 822; Stirone v United States, 361 US 212; People v Kaminski, 58 NY2d 886; People v Perez, 83 NY2d 269; People v Bliven, 112 NY 79; People v Katz, 209 NY 311.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Anthea H. Bruffee and Roseann B. MacKechnie of counsel), for respondent.
    Defendant was not denied a fair trial by the court’s acting-in-concert charge. (People v Katz, 209 NY 311; People v Corbalis, 178 NY 516; People v Bliven, 112 NY 79; People v Doles, 165 AD2d 689; People v Brooks, 161 AD2d 655; People v Guidice, 83 NY2d 630; People v Duncan, 46 NY2d 74, 442 US 910; People v Benzinger, 36 NY2d 29; People v Herbison, 22 NY2d 946; People v Jackson, 20 NY2d 440, 391 US 928.)
   OPINION OF THE COURT

Smith, J.

The principal issue here is whether the trial court erred in permitting the prosecution to pursue an accessorial liability theory at trial and in charging the jury on that theory where the indictment charged defendant only as the principal actor. We hold that charge was proper and affirm the order of the Appellate Division.

Defendant was convicted, after a jury trial, of manslaughter in the first degree in the shooting death of William Daniels. The Grand Jury voted an indictment charging defendant with murder in the second degree and criminal possession of a weapon in the second and third degrees, making no mention of accomplices and focusing solely on defendant’s conduct. The testimony before the Grand Jury was that defendant, Daniels and several other individuals were in defendant’s apartment and that defendant and Daniels were having a verbal disagreement. One shot rang out, after which Daniels was observed standing face to face with defendant. Daniels, looking directly at defendant who was holding a gun, exclaimed, "You shot me.” Thereafter, Daniels fell to the floor and was removed from the apartment by defendant and the other individuals.

The Grand Jury was charged to return a count of second degree murder if it found credible and legally sufficient evidence that defendant, with intent to cause the death of Daniels, shot him and caused his death. Additionally, the Grand Jury was charged to return counts charging defendant with second and third degree criminal possession of a weapon as a principal if there was credible and legally sufficient evidence of possession.

Prior to trial, the People moved to amend the indictment to add the theory of acting-in-concert to each of the indicted crimes. This motion was denied. The court, however, granted a pretrial adjournment to investigate further the acting-in-concert evidence the People intended to establish. The trial court permitted the prosecution, over defendant’s objection, to present evidence tending to establish that defendant did act in concert and the court further charged the jury on accessorial liability.

The Appellate Division affirmed the judgment, stating, "Although the indictment did not charge the defendant with accessorial liability, the trial court properly permitted proof that tended to establish that the defendant acted in concert with others in the victim’s shooting” (198 AD2d 529, 530 [citations omitted]). Quoting this Court’s decision in People v Duncan (46 NY2d 74, 79-80) that "[t]here is no distinction between liability as a principal and criminal culpability as an accessory and the status for which the defendant is convicted has no bearing upon the theory of the prosecution,” the Appellate Division determined that the People provided sufficient notice to defendant before trial of their intention to offer evidence establishing that he was an accomplice to the shooting, that defendant was given an opportunity to prepare his defense and that the admission of evidence of accessorial liability was proper.

Defendant argues that he was denied his constitutional right to be tried only on those charges determined by the Grand Jury to be appropriate and that he did not receive fair notice of the charges against him. The People argue that prosecutors have traditionally been allowed to introduce proof of acting-in-concert where the only charge is as a principal and that the defendant had adequate notice of the People’s intent to offer evidence of acting-in-concert.

I.

Initially, we note that "[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury” (NY Const, art I, § 6; see also, CPL 210.05). Such person should be clearly apprised of the conduct which is the subject of the accusation (id.; see also, CPL 200.50). The three primary functions of the indictment are (1) to provide "the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense,” (2) to "provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence” and (3) to indicate "just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes” (People v lannone, 45 NY2d 589, 594-595; see also, Russell v United States, 369 US 749, 770).

Traditionally, it has been permissible to charge and admit evidence convicting a defendant as an accessory where an indictment charges only conduct as a principal (People v Bliven, 112 NY 79). Whether a defendant is charged as a principal or as an accomplice to a crime has no bearing on the theory of the prosecution (People v Duncan, 46 NY2d 74, supra). An indictment charging a defendant as a principal is not unlawfully amended by the admission of proof and instruction to the jury that a defendant is additionally charged with acting-in-concert to commit the same crime, nor does it impermissibly broaden a defendant’s basis of liability, as there is no legal distinction between liability as a principal or criminal culpability as an accomplice (id., at 79-80). When the defendant was indicted as a principal and evidence was admitted and the jury charged that defendant could be convicted either as a principal or an accomplice, no new theory of culpability was introduced into the case. The court’s instruction on acting-in-concert did not charge "a substantive crime not appearing in the indictment or amend[] the indictment to charge additional criminal acts or crimes” (People v Wilczyn ski, 97 Misc 2d 307, 308, affd 65 AD2d 518, cert denied 439 US 1128).

II.

Defendant insists that the charge of acting-in-concert denied his right to be prosecuted on the Grand Jury indictment. However, in People v Duncan (supra, at 79-80) we indicated that there is "no distinction between liability as a principal and criminal culpability as an accessory and [that] the status for which the defendant is convicted has no bearing upon the theory of the prosecution.” Further, in People v Bliven (supra) this Court upheld a defendant’s indictment as a principal and conviction as an accomplice.

Defendant relies on People v Roberts (72 NY2d 489). The holding of that case does not aid defendant here. People v Roberts declared that where "the indictment specifies a set of facts supporting a material element of the crime charged, the People at trial are [not] at liberty to present evidence that affirmatively disproves it,” nor are they free to seek a defendant’s conviction on separate factual evidence (72 NY2d, at 497). People v Roberts involved an indictment charging that defendant caused the victim’s death, and specified the theory of liability, namely that defendant had struck the victim in the neck. However, at trial, the People argued and presented evidence that defendant had caused the victim’s death by deliberately strangling her. The Court concluded that the defendant was prejudiced by the People’s change in theory (72 NY2d, at 499).

People v Roberts (72 NY2d 489, supra) is distinguishable from this defendant’s case. In Roberts (supra) although the crime alleged in the indictment was technically the same one for which the defendant was tried, the theory of liability introduced at trial varied significantly from that charged in the indictment. The indictment charged defendant with manslaughter, consistent with his testimony that he struck the victim with his fist when his taxi began to swerve out of control, knocking her unconscious. The People’s proof at trial, however, that defendant caused the victim’s death by deliberately strangling her, was inconsistent with the manslaughter charge in the indictment but was consistent with intentional murder not charged in the indictment, which the Court found "defendant at trial was unprepared to meet” (72 NY2d, at 499).

In this defendant’s case, no new theory was introduced at trial which was inconsistent with that contained in the indictment. The indictment charged and the People proved that defendant, intending to cause serious physical harm, caused the death of William Daniels. The facts established that William Daniels was shot once on the evening of September 11, 1988 and died, as a result of that shot, several hours later. Although there were no identified witnesses to the actual shooting, witnesses observing the scene immediately after the shooting, saw Daniels standing face to face with defendant who was holding a gun. Daniels, looking directly at defendant stated, "You shot me”, just before falling to the floor. The witnesses further observed two individuals assist defendant in carrying Daniels’ body outside the apartment building and placing it near some garbage cans. These individuals were also holding guns.

Under section 20.00 of the Penal Law, a person, although not the principal actor, may nonetheless be criminally liable as though he/she were the principal actor when "acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids [the principal] to engage in such conduct” (Penal Law § 20.00). "The key to understanding accessorial liability is that whether one is the actual perpetrator of the offense or an accomplice is, with respect to criminal liability for the offense, irrelevant” (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 20.00, at 54).

That defendant was indicted as a principal and convicted either as a principal or an accomplice did not alter the theory of liability charged in the indictment. The elements of the indicted crimes were the same whether defendant was a principal or an accessory. The indictment charged defendant with intentionally causing the death of William Daniels by shooting him with a handgun. Before the defendant could be convicted as principal or accessory, the People were required to prove every element of the indicted crime. The theory upon which prosecution and conviction are sought does not depend upon a defendant’s liability as a principal or accessory (People v Duncan, 46 NY2d 74, 79-80, supra). As People v Guidice (83 NY2d 630) recently reaffirmed, "The People are not required to specify in an indictment whether a defendant is being charged as a principal or as an accomplice. For charging purposes, the distinction between principal and accomplice is academic” (id., at 637).

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order affirmed.


author: Simons, J.

text:
    [647 NE2d 96, 622 NYS2d 891]
    In the Matter of Andrew Duell et al., as Executors of Manny E. Duell, Deceased, Appellants, v Liza Condon, Respondent, et al., Respondent.
    Argued January 5, 1995;
    decided February 9, 1995

      POINTS OF COUNSEL

      Robert M. Olshever, P. C., Manhasset (Jeffrey S. Goldberg of counsel), for appellants.
    I. Section 234 of the Real Property Law is inapplicable to respondent, Liza Condon, who was not the tenant or signatory of the lease. (Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1; East Four-Forty Assocs. v Ewell, 138 Misc 2d 235; East 10th St. Assocs. v Estate of Goldstein, 154 AD2d 142; Matter of Herzog v Joy, 53 NY2d 821; 829 Seventh Ave. Co. v Reider, 111 AD2d 670; Brown v Badem Bldgs., 111 AD2d 103; Cier Indus. Co. v Hessen, 136 AD2d 145.) II. Section 234 of the Real Property Law should not be retroactively applied. (Whitmarsh v Farnell, 298 NY 336; Stern v Equitable Trust Co., 238 NY 267; Cox v First Natl. Realty & Constr. Co., 50 AD2d 535, 39 NY2d 887; Kalb v River Point Towers Coop., 77 AD2d 541; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443; Jacobus v Colgate, 217 NY 235; Matter of Container Co. [Corsi], 298 NY 277; College Props. v Bruce, 122 Misc 2d 766, 104 AD2d 1063.) III. Section 234 is in derogation of the common law and must be strictly construed. (Hooper Assocs. v AGS Computers, 74 NY2d 487; Transit Commn. v Long Is. R. R. Co., 253 NY 345; Berger v City of New York, 173 Misc 1070, 260 App Div 402.)

      Cowan, Liebowitz & Latman, P. C., New York City (Joseph H. Lessem of counsel), for Liza Condon, respondent.
    I. Liza Condon is entitled to an award of attorneys’ fees because she is bound by the terms of the Condon lease. (Cier Indus. Co. v Hessen, 136 AD2d 145; Barrow Realty Corp. v Village Brewery Rest., 272 App Div 262; North Shore Plaza Assocs. v Guida, 117 Misc 2d 778; Matter of Park E. Land Corp. v Finkelstein, 299 NY 70; Solomon v Burrows, 90 Misc 2d 770; Matter of Clarke v Morris, 46 Misc 2d 476; East Egg Assocs. v DiRaffaele, 158 Misc 2d 364, 160 Misc 2d 667.) II. An award of attorneys’ fees to Liza Condon is consistent with the language and meaning of Real Property Law § 234. (Schampier v Office

      of Gen. Servs., 73 AD2d 1011, 52 NY2d 746; Matter of Herzog v Joy, 74 AD2d 372, 53 NY2d 821; Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 66 NY2d 298; Matter of Lumbermens Mut. Cas. Co. [Berkovic], 74 AD2d 496; Braschi v Stahl Assocs. Co., 74 NY2d 201; Sullivan v Brevard Assocs., 66 NY2d 489; M & L Jacobs v DelGrosso, 128 Misc 2d 725, 133 Misc 2d 542; Cesbron v Reardon, 73 Misc 2d 715; Matter of Brighton Sixth St. Corp. v Finkelstein, 193 Misc 785; Mapama Corp. v Nadelson, 129 Misc 2d 816, 124 AD2d 1079.) III. An award of attorneys’ fees to Liza Condon advances the legislative purpose and policy of Real Property Law § 234. (Post v 120 E. End Ave. Corp., 62 NY2d 19; Festa v Leshen, 145 AD2d 49; Ancona v Metcalf, 120 Misc 2d 51; Dowling v Yamashiro, 116 Misc 2d 86; Braschi v Stahl Assocs. Co., 74 NY2d 201; Feierstein v Moser, 124 Misc 2d 369; 119 Fifth Ave. Corp. v Berkhout, 134 Misc 2d 963; Cier Indus. Co. v Hessen, 136 AD2d 145; Nesbitt v New York City Conciliation & Appeals Bd., 121 Misc 2d 336; Maplewood Mgt. v Best, 143 AD2d 978.) IV. The rent stabilization cases cited by the landlord are clearly inapplicable to the present case. (Braschi v Stahl Assocs. Co., 74 NY2d 201; Sullivan v Brevard Assocs., 66 NY2d 489; Matter of Chessin v New York City Conciliation & Appeals Bd., 100 AD2d 297; Enright v Mintz, 116 Misc 2d 1084; Brown v Badem Bldgs., 111 AD2d 103; Peck v Wolf, 157 AD2d 535, 75 NY2d 709; East Four-Forty Assocs. v Ewell, 138 Misc 2d 235; Festa v Leshen, 145 AD2d 49; Haroust Corp. v Yuen Chung Chin, 155 AD2d 317.) V. Real Property Law § 234 is applicable to leases entered into prior to the enactment of the statute. (Cox v First Natl. Realty & Constr. Co., 50 AD2d 535, 39 NY2d 887; College Props, v Bruce, 122 Misc 2d 766, 104 AD2d 1063; Greco v GSL Enters., 137 Misc 2d 714; 313 W. 100th St. Tenants Assn. v Kepasi Realty Corp., 139 Misc 2d 57, 143 Misc 2d 566; Scotia Assocs. v Bond, 126 Misc 2d 885; Deary v Keith, 68 Misc 2d 110; Lesser v Park 65 Realty Corp., 140 AD2d 169, 72 NY2d 1042; Civil Serv. Empls. Assn. v County of Oneida, 78 AD2d 1004, 53 NY2d 603; Matter of Fisher v New York State Employees’ Retirement Sys., 279 App Div 315, 304 NY 899.) VI. The landlord’s nonprimary resident proceeding was based on an alleged breach of the lease. (Cier Indus. Co. v Hessen, 136 AD2d 145; Troy v Oberlander, 146 AD2d 460.) VIL Liza Con-don is entitled to an award of attorneys’ fees and expenses incurred in connection with the landlord’s appeals. (Kumble v Windsor Plaza Co., 161 AD2d 259, 76 NY2d 709; Washburn v 166 E. 96th St. Owners Corp., 166 AD2d 272.)
   OPINION OF THE COURT

Simons, J.

The question submitted is whether the provisions of section 234 of the Real Property Law which permit successful tenants in landlord/tenant disputes to recover attorneys’ fees, may be applied in this proceeding involving a statutory tenant. We conclude that they may and therefore affirm.

I

In October of 1960, Edwin and Phyllis Condon executed a two-year lease for a seven-room apartment on Washington Square North in New York City. The lease was not renewed upon its expiration in 1962; at that time, the Condons became statutory tenants under the recently enacted local rent control laws (see, Local Emergency Housing Rent Control Act, added by L 1962, ch 21; New York City Rent and Rehabilitation Law, added by Local Laws, 1962, No. 20). After the death of her father in 1973, the Condons’ adult daughter, respondent Liza Condon, returned to the apartment to reside with her mother and upon Phyllis’ death in 1986, Liza became the statutory tenant (see, New York City Rent and Eviction Regulations, 9 NYCRR 2204.6 [d] [3] [i]).

In 1987, the owners of the Washington Square North property, petitioners Andrew Duell and Irene Duell as executors of the estate of Manny Duell, commenced a summary proceeding in New York City Civil Court to evict Condon on the grounds that the Washington Square apartment was not her primary residence. The court dismissed the petition after a hearing and held further that Condon was entitled to an award of attorneys’ fees pursuant to Real Property Law § 234. The parties stipulated to fees in the amount of $51,517.25 and judgment was entered accordingly.

Petitioners appealed the judgment contending that respondent, a statutory tenant who was never a party to the executed lease, was not entitled to fees under the Real Property Law. The Appellate Term, First Department, affirmed, as did the Appellate Division, following an appeal to that Court. The Appellate Division granted leave to appeal to this Court and certified the following question: "Was the order of the Appellate Term of the State of New York, as affirmed by this Court, properly made?”

II

Real Property Law § 234 provides:

“Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease * * * there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease”.

The 1960 lease executed by Edwin and Phyllis Condon contained a provision entitling the landlord to assess attorneys’ fees and expenses against the tenant. Petitioners contend, however, that respondent may not recover fees and expenses because (1) the provisions of the lease do not carry forward into the statutory tenancy of a tenant who was not a signatory to the lease; (2) the nonprimary residence litigation was not a proceeding “arising out of the lease”; and, even if those questions be answered affirmatively, (3) the provisions of Real Property Law § 234 may not be applied retroactively to a lease that was executed prior to the statutory enactment.

Preliminarily, because the parties rely on both rent-control and rent-stabilization decisions, it should be noted that those two schemes were enacted to address different problems and they endow landlords and tenants with distinct rights and obligations (see, Braschi v Stahl Assocs. Co., 74 NY2d 201, 210; Sullivan v Brevard Assocs., 66 NY2d 489, 492-494; see generally, Administrative Code of City of NY § 26-408, and 9 NYCRR part 2204 [rent control]; Administrative Code § 26-511 [b], and 9 NYCRR part 2524 [rent stabilization]). They permit evictions only under specific circumstances and define the residential landlord/tenant relationship in fundamentally different ways. A tenant in rent-controlled premises has a right to continued occupancy, assuming the tenant has complied with the rent control laws, notwithstanding the expiration of the lease (Administrative Code § 26-408 [a]; 9 NYCRR 2204.1). The tenancy exists not by contract but by operation of law — it is a "statutory tenancy.” In contrast, assuming the right to continued occupancy, the nature of the rent-stabilized landlord/tenant relationship continues to be contractual in nature because the landlord of a rent-stabilized apartment must offer the tenant a renewal lease at the expiration of a term (Administrative Code § 26-511 [c] [4], [9]; 9 NYCRR 2524.1). It is the absence of a current lease in the rent-controlled statutory tenancy that gives rise to this dispute over the applicability of Real Property Law § 234.

A

Addressing petitioners’ contentions, we hold first that the attorneys’ fee clause contained in the lease executed in 1960 carried forward into the statutory tenancy of Edwin and Phyllis Condon. The New York City Rent and Eviction Regulations say so: "[t]he provisions of any lease or other rental agreement shall remain in force pursuant to the terms thereof, except insofar as those provisions are inconsistent with the Rent Law or these regulations” (9 NYCRR 2200.13; see also, former New York City Rent and Eviction Regulations § 15). Various courts have applied that provision to hold that when a lease expires and is followed by a statutory tenancy, the terms and conditions of the expired lease — other than the duration of the lease and the amount of rent, but including clauses providing for payment of litigation expenses — continue into the statutory tenancy (see, Barrow Realty Corp. v Village Brewery Rest., 272 App Div 262; see also, 207-17 W. 25th St. Co. v Blu-Strike Safety Razor Blade Co., 302 NY 624, 626, revg 277 App Div 93; Matter of Park E. Land Corp. v Finkelstein, 299 NY 70, 74; 74 NY Jur 2d, Landlord and Tenant, § 129, n 11).

Petitioners contend, however, that the term "tenant” as used within Real Property Law § 234 applies only to signatories and thus even if Edwin and Phyllis Condon were entitled to the benefit of the statute, Liza Condon is not because she did not sign the lease. This is so, they say, because the statutory benefit is grounded on the provisions of the "lease” and in their view, the term "tenant” is understood to mean a signatory to a lease. They also rely on judicial authority which they assert denies the benefit of Real Property Law § 234 to nonsignatories.

When interpreting a statute, the words used by the Legislature are to be given their usual and commonly understood meaning unless the statute plainly indicates that a different meaning was intended (see, Matter of SIN, Inc. v Department of Fin., 71 NY2d 616, 620-621; Price v Price, 69 NY2d 8, 15-16). The word "tenant” is commonly understood to mean one who rightfully occupies and/or uses the premises of another (see, 17 Oxford English Dictionary 764 [2d ed 1989]; Black’s Law Dictionary 1314 [5th ed 1979]). To the extent that the Legislature’s concurrent usage of the terms "tenant” and "lease” creates an ambiguity as to the meaning of "tenant,” the statute must be construed to further the legislative intent and purpose (see, Nestor v McDowell, 81 NY2d 410, 414; Price v Price, 69 NY2d, at 16, supra; Ferres v City of New Rochelle, 68 NY2d 446, 451).

The overriding purpose of Real Property Law § 234 was to level the playing field between landlords and residential tenants, creating a mutual obligation that provides an incentive to resolve disputes quickly and without undue expense. The statute thus grants to the tenant the same benefit the lease imposes in favor of the landlord. An additional purpose, particularly relevant in cases in which the tenancy is governed by the emergency rent laws, is to discourage landlords from engaging in frivolous litigation in an effort to harass tenants, particularly tenants without the resources to resist legal action, into terminating legal occupancy (see, Mem of Senate Sponsor Harrison Goldin, Bill Jacket, L 1966, ch 286, at 1; Mem of NY St Dept of Social Welfare, op. cit., at 5; see also, Maplewood Mgt. v Best, 143 AD2d 978; Cier Indus. Co. v Hessen, 136 AD2d 145,150-151).

It would defeat the purpose of Real Property Law § 234 if "tenant” were construed to mean only signatories to the lease. A clause in the lease obligating a tenant to pay attorneys’ fees and/or expenses to the landlord continues into the statutory tenancy and binds a host of others who have not signed the lease (see, 9 NYCRR 2204.6 [d] [3] [i] [those succeeding to a statutory tenancy may include parents and offspring, in-laws and step-relatives, aunts and uncles, nieces and nephews, and other interdependent persons who have lived for two years with the statutory tenant]). If statutory tenants are bound to pay the landlord’s fees and expenses — and they are (see, Greenberg v Coronet Props. Co., 167 AD2d 291; College Props. v Bruce, 122 Misc 2d 766, affd 104 AD2d 1063) — then to effectuate the legislative purpose the term "tenant” used within the statute must be read to include all statutory tenants, whether or not they signed the lease.

Indeed, this case is a perfect example of why the statute should be read to include nonsignatories to the lease. Liza Condon is a statutory tenant and pays a rent that has been controlled for three decades. Thus the landlords had an obvious incentive to terminate her tenancy. Though they lacked any substantial evidence that she lived elsewhere, they commenced the eviction proceedings against Condon based upon the claim that the Washington Square apartment was not her permanent residence. The defense of the legal proceeding, as they concede, cost respondent in excess of $51,000. Had petitioners prevailed on the merits, they would have been entitled to reimbursement from Condon for their legal expenses. It would seem, then, that these are precisely the circumstances the Legislature envisioned when they considered section 234 and authorized the courts to award fees and expenses to those in Condon’s position.

Petitioners also rely on several lower court decisions refusing to apply Real Property Law § 234 for the benefit of successful litigants who were not signatories to leases (see, East Four-Forty Assocs. v Ewell, 138 Misc 2d 235; 317 W. 77th v Pera, NYU, Apr. 3, 1990, at 26, col 1; Beth Israel Med. Ctr. v Power, NYU, Nov. 8, 1990, at 23, col 2). Those decisions are not persuasive, for two reasons. First, as several courts have recognized, the applicability of Real Property Law § 234 is not limited to the signatories to the lease but turns on the existence of a cognizable legal relationship between the parties (see, Greenberg v Coronet Props. Co., 167 AD2d 291, supra [a successor statutory tenant]; Feierstein v Moser, 124 Misc 2d 369 [a successor landlord as against a statutory tenant]; Mapama Corp. v Nadelson, 129 Misc 2d 816 [the assignee of a statutory tenant]; Kalb v River Point Towers Coop., 77 AD2d 541 [the administrator of the estate of a deceased tenant]). When a statutory tenancy exists, the landlord/tenant relationship continues by operation of law.

Second, the decisions cited by petitioners all involved disputes over rent-stabilized premises. Within the New York City rent stabilization scheme, the term "tenant” is narrowly defined to include only a "person or persons named on a lease as lessee or lessees, or who is or are a party or parties to a rental agreement” (9 NYCRR 2520.6 [d]). Implicitly, the decisions in the rent stabilization cases hold that since the party seeking attorneys’ fees was not a tenant within the meaning of the Rent Stabilization Code, that party was not a tenant within the meaning of Real Property Law § 234. Although we do not pass on the correctness of those decisions, we note that they are distinguishable from the instant case, because the rent control law broadly defines a "tenant” as any person who is entitled to possession, use or occupancy of the premises (Administrative Code § 26-403 [m]).

B

Petitioners contend next that Real Property Law § 234 does not apply in this case because the eviction proceeding was based on a claim that the Washington Square property was not respondent’s primary residence and the lease does not contain a clause requiring the tenant to maintain the apartment as her primary residence. Thus, they maintain the litigation does not "arise out of’ the lease within the meaning of Real Property Law § 234.

The 1960 lease contained an express covenant by the tenant to quit and surrender the premises "[u]pan the expiration or other termination of the term of this lease.” Because this covenant to surrender the premises is not inconsistent with the rent control law or regulations, it is among those lease provisions that carried forward into the statutory tenancy (see, 9 NYCRR 2200.13). Upon the termination of the statutory tenancy, the tenant remains under the obligation to quit and surrender possession of the premises.

The New York City Rent and Rehabilitation Law does not apply to the housing accommodation unless it is occupied by the tenant as a primary residence (Administrative Code § 26-403 [e] [2] [i] [10]; New York City Rent and Eviction Regulations, 9 NYCRR 2200.2 [¶] [18]). When a tenant ceases to occupy the premises as a primary residence, the term of the statutory tenancy expires and the tenant is obligated by the covenant in the lease to quit and surrender the premises. Here, it was the tenant’s alleged breach of a covenant to quit the premises that caused the landlord to commence the non-primary residence proceeding to recover the premises. Accordingly, the landlord’s litigation arose out of the lease within the meaning of Real Property Law § 234 (cf., Cier Indus. Co. v Hessen, supra, at 149; see also, Troy v Oberlander, 146 AD2d 460).

C

Finally, petitioners contend that even if Real Property Law §234 applies to nonsignatories, and nonprimary residence litigation is found to arise out of the lease, Real Property Law § 234 should not be applied retroactively to this lease because it was executed before the statute was enacted.

Whether a statute is to be applied prospectively or retroactively generally requires determination of legislative intent (see, Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 453; McKinney’s Cons Laws of NY, Book 1, Statutes § 51 [b], [d]). When a statute creates a new right of action, it is presumed that the Legislature intended the statute to be applied prospectively only unless a contrary intent clearly appears (see, Jacobus v Colgate, 217 NY 235, 240-242). On the other hand, statutes that are remedial in nature may be applied retrospectively (see, Becker v Huss Co., 43 NY2d 527, 540). Though these maxims of statutory construction provide helpful guideposts, the reach of the statute ultimately becomes a matter of judgment made upon review of the legislative goal (see, Becker v Huss Co., 43 NY2d, at 540-541, supra).

Petitioners contend that because there was no opportunity to renegotiate the terms and conditions of the expired lease before the attorneys’ fee provision was carried forward into the statutory tenancy, Real Property Law § 234 unfairly imposes an unnegotiated obligation on the landlord of rent-controlled premises which could remain in effect for years before the statutory tenancy terminates. We conclude, however, that the imposition of a mutual obligation into preexisting leases is exactly what the Legislature sought to accomplish by the statute.

The remedial nature of the Legislature’s action to equalize the power of landlords and tenants is evident from both the language of the statute as well as historical documents (see, Bill Jacket, L 1966, ch 286). Real Property Law § 234 contains no limitation, stating that its terms apply "[wjhenever a lease of residential property” includes an attorneys’ fees and expenses clause in favor of the landlord (emphasis supplied). Moreover, the memorandum of the sponsor of the bill states that the proposed statute would provide that "any lease giving such a right [to recover fees and expenses] to the landlord shall be construed to give a similar right to the tenant”. (Mem of Senator Harrison Goldin, Bill Jacket, op. cit., at 1 [emphasis supplied].) It was intended, he said, that "by giving tenants the potential right to recover such legal expenses, the bill would act as a deterrent to overreaching practices by landlords who now rely upon their tenants’ inability to bear the cost of legal proceedings required to redress [the] landlord’s improper acts” (ibid, [emphasis supplied]). Moreover, the apparent legislative intent to apply the statute retroactively was recognized by those commenting on the proposed legislation; indeed they objected to the bill because it was retroactive (see, Mem of Commerce and Industry Assn of NY, Bill Jacket, op. cit., at 18).

Finally, we note that the statute, as originally enacted in 1966, applied only to New York City. At that time rent control had been in existence there for four years and doubtless many New York City leaseholds had become statutory tenancies during that period, as had the Condons’. The statute was enacted to correct an existing problem and there is no evidence that the Legislature intended statutory tenancies created between 1962 through 1966 to be exempt from its provisions. Because countless statutory tenants remained obligated under the preexisting attorneys’ fees provision in favor of the landlord and because the rent control scheme provides the landlord with an ever-increasing incentive to evict the statutory tenants, the remedial purpose of the statute would be ignored if the statute were applied only prospectively.

In sum, we hold that Real Property Law § 234 applies to a statutory tenant under the rent control law even if not a signatory to the lease, that the nonprimary residence proceeding arose out of the lease within the meaning of Real Property Law § 234, and that the statute applies retroactively to leases executed prior to the effective date of the statute.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, etc.

      . As originally enacted, the statute applied only to residential properties in New York City. It was subsequently amended and now applies Statewide (see, L 1969, ch 297).

      . In the order of the Appellate Division entered January 27, 1994 affirming Appellate Term, the matter was remanded to New York City Civil Court for the purpose of establishing the reasonable amount of attorneys’ fees and disbursements incurred by respondent in defending the appeal to the Appellate Division. Our disposition is without prejudice to respondent seeking attorneys’ fees and disbursements incurred in defense of the appeal to this Court on the remand to the Civil Court.


text:
    [647 NE2d 101, 622 NYS2d 896]
    Walter Sweeney, Respondent, v Prisoners’ Legal Services of New York, Inc., et al., Appellants.
    Argued January 3, 1995;
    decided February 14, 1995

      POINTS OF COUNSEL

      Harris Beach & Wilcox, Rochester (Edward H. Fox of counsel), for appellants.
    I. The trial court and the Court below properly held that defendants’ allegedly libelous statement was qualifiedly privileged. (New York Times Co. v Sullivan, 376 US 254; Toker v Poliak, 44 NY2d 211; Shapiro v Health Ins. Plan, 7 NY2d 56; Patane v Griffin, 164 AD2d 192, 77 NY2d 810; Derrig v Quinlan, 125 AD2d 777; Sweeney v Prisoners’ Legal Servs., 146 AD2d 1, 74 NY2d 842.) II. The Court below improperly reversed the trial court’s ruling granting judgment notwithstanding the jury’s verdict because plaintiff failed as a matter of law to prove that defendants acted with malice. (Freeman v Johnston, 84 NY2d 52; Liberman v Gelstein, 80 NY2d 429; Shapiro v Health Ins. Plan, 7 NY2d 56; Clark v Somers, 162 AD2d 982; Hollander v Cayton, 145 AD2d 605; New York Times Co. v Sullivan, 376 US 254; Garrison v Louisiana, 379 US 64.) III. Because plaintiff failed to meet his burden of proof as a matter of law, there is no need for a new trial. (Matter of Lakin [Motor Vehicle Acc. Indem. Corp.], 23 AD2d 488; Harte-Hanks Communications v Connaughton, 491 US 657; Bose Corp. v Consumers Union of U. S., 466 US 485, 467 US 1267.) IV. The finding of the Court below that defendants’ statement was defamatory is violative of defendants’ First Amendment rights. (New York Times Co. v Sullivan, 376 US 254; N. A. A. C. P. v Button, 371 US 415.) V. Even if plaintiff has proved that defendants were motivated exclusively by malice, the jury’s verdict should not be reinstated as their award was excessive as a matter of law and was properly reduced by the Court below. (Angel v Levittown Union Free School Dist. No. 5, 171 AD2d 770; Nellis v Miller, 101 AD2d 1002; Unker v Joseph Markovits, Inc., 643 F Supp 1043; Wachs v Winter, 569 F Supp 1438; Death v Salem, 143 AD2d 253.)

      Rowley, Forrest, O’Donnell & Hite, P. C, Albany (Brian J. O’Donnell and Richard W. Bader of counsel), for respondent.
    I. The Court below properly held that plaintiff met his burden of proving defendants’ actual malice. (New York Times Co. v Sullivan, 376 US 254; Herbert v Lando, 441 US 153; Rinaldi v Viking Penguin, 52 NY2d 422; Prozeralik v Capital Cities Communications, 82 NY2d 466; Freeman v Johnston, 84 NY2d 52; Liberman v Gelstein, 80 NY2d 429; Masson v New Yorker Mag., 501 US 496; Harte-Hanks Communications v Connaughton, 491 US 657; Minnesota v Clover Leaf Creamery Co., 449 US 456; Bose Corp. v Consumers Union of U. S., 466 US 485.) II. The Court below properly reinstated the jury’s verdict. (Pollicina v Misericordia Hosp. Med. Ctr., 158 AD2d 194, 76 NY2d 934; Muth v J & T Metal Prods. Co., 74 AD2d 898, 51 NY2d 745; Foulke v New York Consol. R. R. Co., 228 NY 269; Petrovski v Fornes, 125 AD2d 972, 69 NY2d 608; African Metals Corp. v Bullowa, 288 NY 78; Prozeralik v Capital Cities Communications, 82 NY2d 466; Rinaldi v Viking Penguin, 52 NY2d 422; Noonan v Paine, 267 App Div 1035; Liberman v Gelstein, 80 NY2d 429; Loughry v Lincoln First Bank, 67 NY2d 369; Stillman v Ford, 22 NY2d 48.) III. The decision of the Court below is not violative of defendants’ First Amendment rights. (Gross v New York Times Co., 82 NY2d 146; Herbert v Lando, 441 US 153; Prozeralik v Capital Cities Communications, 188 AD2d 178.) IV. The Court should reinstate the jury’s award of damages. (Toomey v Farley, 2 NY2d 71; Rossignol v Silvernail, 185 AD2d 497, 80 NY2d 760; Prozeralik v Capital Cities Communications, 82 NY2d 466.)

      Arthur N. Eisenberg, Penny Shane, Michael J. Bowe, New York City, and Elizabeth Alexander, of the District of Columbia Bar, admitted pro hac vice, for New York Civil Liberties Union and another, amici curiae.

    The expression at issue is protected by the constitutional right to petition the government for redress of grievances and is entitled to absolute immunity from defamation claims or, at least, an immunity that requires proof of "common law malice.” (United States v Cruikshank, 92 US 542; In re Quarles & Butler, 158 US 532; Mine Workers v Illinois Bar Assn., 389 US 217; McDonald v Smith, 472 US 479; 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130; Youmans v Smith, 153 NY 214; N. A. A. C. P. v Button, 371 US 415; Immuno AG. v Moor-Jankowski, 77 NY2d 235; Karaduman v Newsday, Inc., 51 NY2d 531; Anderson v United States, 417 US 211.)

      G. Robert Witmer, Jr., Albany, Eileen Kaufman, Huntington, and Hughes Hubbard & Reed, New York City (Daniel H. Weiner and Melissa A. Crane of counsel), for New York State Bar Association and another, amici curiae.

    I. The finding of the Court below of actual malice is inconsistent with decisions of this Court and the United States Supreme Court. (Bose Corp. v Consumers Union of U. S., 466 US 485; Mahoney v Adirondack Publ. Co., 71 NY2d 31; Prozeralik v Capital Cities Communications, 82 NY2d 466; New York Times Co. v Sullivan, 376 US 254; St. Arnant v Thompson, 390 US 727; Harte-Hanks Communications v Connaughton, 491 US 657; Garrison

      v Louisiana, 379 US 64; World Boxing Council v Cosell, 715 F Supp 1259; Bruno v New York News, 89 AD2d 260; Liberman v Gelstein, 80 NY2d 429.) II. The decision of the Court below seriously undermines the professional responsibility that attorneys owe their clients. (People ex rel. Bensky v Warden, 258 NY 55; Andrews v Gardiner, 224 NY 440; 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130; Park Knoll Assocs. v Schmidt, 59 NY2d 205; Toker v Poliak, 44 NY2d 211.)
   OPINION OF THE COURT

Simons, J.

The issue in this defamation case is whether plaintiff, a correction officer at Elmira Correctional Facility, proved by clear and convincing evidence that defendants acted with actual malice when they distributed a document that included his name on a list of correction officers accused of using unnecessary or excessive force.

Defendant Prisoners’ Legal Services, Inc. (PLS) is a private, not-for-profit corporation that contracts with the State to provide legal services to inmates at State correctional facilities. PLS provides services on a wide range of matters, including inmates’ complaints that correction officers have used excessive force. Defendant Terrizzi is PLS’ managing attorney and defendant Golder is employed as a legal assistant. On March 23, 1987 Terrizzi and Golder wrote a letter to the Superintendent of Elmira Correctional Facility concerning their study of prisoner complaints of unnecessary and excessive violence perpetrated by correction officers at the facility. Attached to the letter was a list of some 38 violent incidents, with names of inmates and officers. Included among them was an incident involving plaintiff and an inmate named Glen Mays.

The testimony at trial developed that in August of 1984, Mays wrote a letter to defendant Terrizzi in which Mays raised various complaints about the treatment he was receiving. Among other things, he complained of an incident during which plaintiff Sweeney had injured him by pushing him down several flights of stairs. Mays stated that he had been charged with misbehavior as a result of the incident, and that he had been found guilty after a prison disciplinary hearing and punished by 30 days of "keeplock” confinement. PLS opened a file upon receipt of Mays’ letter and shortly thereafter legal assistant Beverly Abplanalp-Gaede interviewed Mays at the facility. At that time, Mays executed an authorization permitting PLS to obtain any of his records that were in the possession of the Department of Correctional Services. Over the course of the next five weeks, Mays and Abplanalp-Gaede exchanged correspondence relating to the various complaints voiced by Mays. In a letter dated October 31, however, Mays acknowledged that his claim of excessive force would be difficult to prove, that he would be unable to get a good lawyer to represent him, and that the "system” was not in his favor. He concluded that he "could never win” a lawsuit and advised Abplanalp-Gaede that he had decided not to litigate his claim. His file at PLS was closed, and no further investigation of his allegations was conducted.

Approximately two years later, defendants undertook a project aimed at reducing incidents involving excessive use of force by correction officers at Elmira Correctional Facility. Defendant Golder assembled a list of such incidents using the PLS files exclusively; no further investigation or verification of the inmates’ allegations was conducted. At the trial, defendants Terrizzi and Golder admitted that when the letter was published they did not know whether Mays’ allegation was truthful, but since their project involved the compilation, study, and reporting of inmate complaints, the veracity of the complaints was not relevant to their purpose.

Golder’s list included incidents that had been reported since the summer of 1984. Each item included the name of the complaining inmate, the date and time of the incident and the names of the correction officers identified as having participated in the incident. When the assembled data was reviewed by defendants they perceived certain patterns relating to the time of day, location in the facility, and the correction officers most frequently named by inmates. In the March letter they informed the Superintendent of the study, described the patterns that had been identified, and specifically named five correction officers as those most frequently involved in alleged incidents involving the use of excessive force. Plaintiff was not among those five officers.

Attached to the letter was a printout of the data base assembled by Golder, which presented the complaints in chronological order. The list bore the heading "unnecessary/excessive USE OF FORCE BY GUARDS AT ELMIRA CORRECTIONAL facility” and the earliest incident, involving inmate Mays and identifying Sweeney, was at the top of the list. It was the only complaint against plaintiff. Copies of the letter and list were sent to the Chief Counsel and the Commissioner for Facility Operations for the Department of Correctional Services in Albany. Copies were also distributed within the prison population to each of the inmates who had reported an incident that was included in the list. Plaintiff’s action for damages followed.

As the case comes to us, plaintiff has obtained a jury verdict awarding compensatory and punitive damages for defamation, later vacated by the trial court on defendant’s motion and subsequently reinstated by a divided Appellate Division on condition that plaintiff stipulate to accept a reduced award for compensatory damages only (see, 197 AD2d 189; see also, Sweeney v Prisoners’ Legal Servs., 146 AD2d 1, lv dismissed 74 NY2d 842). The majority at the Appellate Division concluded that plaintiff had established actual malice by evidence in the record that (1) Mays’ complaint was not credible, (2) defendants failed to fully investigate the complaint before publishing it, and (3) defendants’ underlying motive was to prove a pattern of abusive conduct by correction officers. The appeal is before us on constitutional grounds.

At trial, Sweeney testified that he had never used excessive force against an inmate, and defendants did not challenge his assertion. Indeed, defendant Terrizzi testified that after this action was commenced he spoke with Mays and concluded at that time that Mays had apparently misidentified Sweeney because the description given by Mays fit another officer. However, plaintiff’s position as a correction officer provides defendants with a qualified privilege (see, Sweeney v Prisoners’ Legal Servs., 146 AD2d, at 6, supra). He was therefore obliged not only to establish that the statement was false, but also prove by clear and convincing evidence that it was published by defendants with "actual malice” (see, Prozeralik v Capital Cities Communications, 82 NY2d 466, 474; Liberman v Gelstein, 80 NY2d 429, 437; Mahoney v Adirondack Publ. Co., 71 NY2d 31, 39; Park Knoll Assocs. v Schmidt, 59 NY2d 205, 211).

"Actual malice” means that defendants published the false information about plaintiff "with knowledge that it was false or with reckless disregard of whether it was false or not” (New York Times Co. v Sullivan, 376 US 254, 280). Inasmuch as defendants did not know the statement was false, plaintiff’s claim rests on proof of a reckless disregard of whether it was false or not. To satisfy the reckless disregard standard, plaintiff had to establish that defendants in fact " 'entertained serious doubts as to the truth of [the] publication’ ” or that they actually had a " 'high degree of awareness of [its] probable falsity’ ” (Harte-Hanks Communications v Connaughton, 491 US 657, 667, quoting St. Amant v Thompson, 390 US 727, 731; and Garrison v Louisiana, 379 US 64, 74; see also, Liberman v Gelstein, 80 NY2d, at 438, supra).

We have observed that there is a genuine and critical distinction between lacking knowledge of a statement’s falsity and being aware that it is probably false or entertaining serious doubts about its truth (see, Liberman v Gelstein, 80 NY2d, at 438, supra). A qualified privilege may be sustained if the speaker is genuinely unaware that a statement is false because the failure to investigate its truth, standing alone, is not enough to prove actual malice even if a prudent person would have investigated before publishing the statement (St. Amant v Thompson, 390 US, at 731, 733, supra).

On the other hand, evidence that defendants purposefully avoided the truth may support a finding of actual malice if supported by evidence that defendants’ "inaction was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity” of the published statement (Harte-Hanks Communications v Connaughton, 491 US, at 692, supra). In other words, defendants’ failure to investigate cannot amount to "purposeful avoidance” unless it evidences an intent to avoid the truth (id,., at 693). Absent some direct evidence that defendants in this case were aware that Mays’ complaint was probably false, they cannot be found to have harbored an intent to avoid the truth (see, Mahoney v Adirondack Publ. Co., 71 NY2d, at 39, supra; cf., Prozeralik v Capital Cities Communications, 82 NY2d, at 475, supra).

In reviewing a case of actual malice the appellate court must make a de nova review of the entire record, and determine whether the proof before the trial court supports the finding of actual malice with convincing clarity (see, Prozeralik v Capital Cities Communications, 82 NY2d, at 474-475, supra; Bose Corp. v Consumers Union of U. S., 466 US 485, 514). We have done so and conclude that plaintiff did not sustain his burden of proving that defendants acted with actual malice. There was no direct evidence that defendants were aware that Mays’ claim against Sweeney was false. The Appellate Division majority concluded that Mays’ complaint was incredible because Mays was a convicted felon who had been administratively disciplined and who had not suffered serious injuries during the alleged incident. Even if that inference is drawn, it does not support the further inference that defendants were likely aware that Mays’ allegations were probably false. Indeed, the evidence at trial revealed that defendants’ statement was false not because the incident did not happen, but because Mays misidentified plaintiff as a participant in the incident.

Nor is the Appellate Division’s finding of actual malice supported by evidence that defendants were motivated to publish the allegation against Sweeney in furtherance of their campaign to eradicate excessive force at Elmira Correctional Facility. They could not have been improperly motivated unless they were aware Mays’ complaint was false. Moreover, the Supreme Court has stated that even if a defendant’s state of mind or motivation in publishing a statement is viewed as providing circumstantial support for a finding of actual malice, such factors should not be given undue weight (see, Harte-Hanks Communications v Connaughton, 491 US, at 668, supra). Finally, under these circumstances, defendants’ failure to investigate Mays’ allegation was, at most, negligent, not a "reckless disregard” of the truth amounting to actual malice sufficient to support a verdict in favor of a public official on a defamation claim.

Accordingly, the judgment appealed from and order of the Appellate Division brought up for review should be reversed, with costs, and the complaint dismissed.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith and Ciparick concur; Judge Levine taking no part.

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.


text:
    [647 NE2d 105, 622 NYS2d 900]
    Susan E. Dufel et al., Respondents, v Randy H. Green et al., Appellants.
    Argued January 10, 1995;
    decided February 16, 1995

      POINTS OF COUNSEL

      Bouck, Holloway, Kiernan and Casey, Albany (Michael J. Lonergan of counsel), for appellants.
    I. In a no-fault threshold case, it is improper and unnecessary for a medical expert to answer the same questions about serious injury later submitted to the jury on a special verdict sheet. (Robillard v Robbins, 168 AD2d 803, 78 NY2d 1105; Selkowitz v County of Nassau, 45 NY2d 97; People v Cronin, 60 NY2d 430; Van Wycklen v City of Brooklyn, 118 NY 424; Noah v Bowery Sav. Bank, 225 NY 284; De Long v County of Erie, 60 NY2d 296; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; People v Kincey, 168 AD2d 231, 78 NY2d 955; People v McCart, 157 AD2d 194.) II. Allowing a medical expert to answer the same questions about serious injury later submitted to the jury on a special verdict sheet virtually eliminates the burden of proving serious injury. (Scheer v Koubek, 70 NY2d 678; Gaddy v Eyler, 79 NY2d 955; Lopez v Senatore, 65 NY2d 1017.)

      William H. Mycek, Amsterdam, for respondents.
    I. A medical expert’s opinion regarding "serious injury” is properly admitted. (Robillard v Robbins, 168 AD2d 803, 78 NY2d 1105; Finn v Cassidy, 165 NY 584; De Long v County of Erie, 60 NY2d 296; People v Cronin, 60 NY2d 430; Lopez v Senatore, 65 NY2d 1017; Grzesiak v General Elec. Co., 68 NY2d 937.) II. Assuming, arguendo, that error occurred, it was harmless. (Lamphear v State of New York, 91 AD2d 791; Lynch v Adirondack Tr. Lines, 169 AD2d 904; Gaddy v Eyler, 79 NY2d 955; Valentino v State of New York, 62 AD2d 1086; Scala v Discount Rent-A-Car Corp., 58 AD2d 928.)
   OPINION OF THE COURT

Simons, J.

The question submitted is whether it constituted error in this personal injury action for plaintiffs doctors to testify that she sustained (1) a "permanent consequential limitation of use of a body organ or member” and (2) "significant limitation of use of a body function or system”, two of the statutory components of the "serious injury” threshold as defined by Insurance Law § 5102 (d). We conclude that it did not.

Plaintiff commenced this action seeking to recover damages for injuries to her right ankle and knee sustained when the vehicle she was driving collided with a vehicle driven by defendant Randy Green and owned by defendant Beverly Green. Plaintiff’s husband sought derivative damages. The testimony of which defendants complain was given during direct examination of plaintiff’s expert witnesses. To establish that plaintiff had sustained a serious injury, plaintiff’s two physicians were asked, in words tracking the statutory language, whether plaintiff sustained "a permanent consequential limitation” and "a significant limitation” of the use of a body member, function, organ or system. Over defendant’s objection both answered that she had. The doctors were also asked in nonstatutory language whether plaintiff had sustained a permanent injury and both answered that she had.

At the conclusion of the trial, the court asked the jury to determine whether plaintiff had sustained (1) permanent loss of a body organ, member, function or system; (2) permanent consequential limitation of use of a body function or system; (3) significant limitation of use of a body function or system; or (4) a medically determined injury preventing normal activities for 90 out of the 180 days following the accident. The jury returned a verdict finding in plaintiff’s favor on questions 2, 3 and 4 and awarded her damages.

Defendants claim the questions to the doctors were improper and inherently prejudicial because they posed the precise questions the jury was ultimately asked to answer in the interrogatories. They note that the jury answered the first question, asked of the doctors in nonstatutory language, in the negative, implying that the jury exercised independent judgment only when not influenced by the opinions expressed in the statutory words.

The admission of expert opinion evidence is a matter which rests within the discretion of the Trial Judge. Generally, an "expert” should be permitted to offer an opinion on an issue which involves " 'professional or scientific knowledge or skill not within the range of ordinary training or intelligence’ ” (Selkowitz v County of Nassau, 45 NY2d 97, 102, quoting Dougherty v Milliken, 163 NY 527, 533). The test is one of need as applied to the unique circumstances of each case. If the jury requires the benefit of the expert’s specialized knowledge, the expert’s opinion should be allowed even when it bears on an ultimate question (Fisch, New York Evidence § 413, at 264 [2d ed]). Thus, the question before the Court distills to whether a "permanent consequential limitation” or a "significant limitation” of use of a body function, organ or system lie within the medical expert’s specialized knowledge.

Whether an injury is permanent is usually a medical question beyond the knowledge of a lay jury. It was particularly so in this case in which plaintiff’s ankle and knee injuries could have been confused with effects of a hereditary orthopedic condition which required surgery on her right knee shortly after the accident. Whether a limitation of use or function is "significant” or "consequential” (i.e., important; see, Counter-mine v Galka, 189 AD2d 1043, 1045) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part (see, Robillard v Robbins, 168 AD2d 803, affd 78 NY2d 1105).

Proof of the extent of plaintiff’s injury is necessary because the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries (see, Licari v Elliot, 57 NY2d 230, 234-235). A medical judgment on the seriousness of plaintiff’s injury when the jury may not be able to resolve the question without expert opinion evidence is consistent with that legislative intent.

The opinions of the physicians in this case, though framed in the language of questions submitted to the jury, were supported by objective evidence of plaintiff’s condition and treatment (see, Lopez v Senatore, 65 NY2d 1017, 1020; and cf., Gaddy v Eyler, 79 NY2d 955). That factual foundation provided defendants with an adequate basis upon which they were able to cross-examine the experts and challenge their opinions. Moreover, defendants were at liberty to call their own expert to testify on the subject and did so in this case. He testified that plaintiff sustained a 20% permanent loss of use of her ankle. Thus, there was sufficient evidence in the record upon which the jury could exercise its independent judgment without relying solely on conclusory answers to the statutory questions from plaintiffs experts. While we agree with defendant that there may be instances in which questions posed to experts in the statutory form are unduly prejudicial, we do not find them so in this case.

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

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs.

I


text:
    In the Matter of Barry N. Kaplan et al., Appellants-Respondents, v Paul W. Bucha et al., Respondents-Appellants, et al., Respondents.
    Submitted August 30, 1994;
    decided August 30, 1994
   Motion for leave to appeal denied. Cross motions for leave to appeal dismissed upon the ground that the cross movants are not parties aggrieved (see, CPLR 5511).


text:
    The People of the State of New York, Respondent, v Nick Shala, Appellant.
    Submitted August 8, 1994;
    decided August 30, 1994
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from the order of the Appellate Division denying the motion to renew a motion for an order granting permission to file a late notice of appeal (CPL 450.90).