text:
    Jonathan Meath et al., as Coadministrators of the Estate of Ellen R. Meath, Deceased, Appellants, v Abdullah H. Mishrick, Defendant, and Joseph Tagliamonti et al., Respondents.
    Argued October 16, 1986;
    decided November 25, 1986

      APPEARANCES OF COUNSEL

      Alice F. Collopy and Paul A. Krez for appellants.

      Andrea M. Alonso and Patricia D’Alvia for Joseph Tagliamonti, respondent.

      E. Richard Rimmels, Jr., and Donald S. Neumann, Jr., for St. Francis Hospital, respondent.
   OPINION OF THE COURT

Memorandum.

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

In January 1977 decedent, a patient of Dr. Mishrick, was admitted to St. Francis Hospital (the Hospital) for removal of a growth behind her left ear. Dr. Tagliamonti, a pathologist at St. Francis Hospital, examined a sample of that tissue on January 28, 1977 and reported that he found no malignant cells; decedent was discharged the same day. Dr. Mishrick continued to treat decedent, discovered a basal cell carcinoma on her left shoulder in 1980, and in December 1982, admitted her to another hospital for further tests at the site of the original excision. These tests revealed a malignant melanoma at the site of the original growth. In 1983, the 1977 biopsy was reviewed at another hospital and found to contain malignant cells. This medical malpractice action, maintained by decedent’s personal representatives against Dr. Mishrick, Dr. Tagliamonti, and the Hospital was commenced in April 1983.

In April and May 1984, all three defendants brought motions for summary judgment because plaintiffs’ action was commenced beyond the Statute of Limitations. Summary judgment was denied as to each defendant. Special Term held that there were questions of fact as to whether there was continuing treatment by decedent’s treating physician, Dr. Mishrick, and whether this alleged continuous treatment could be the basis for extending the Statute of Limitations as against Dr. Tagliamonti and the Hospital. The Appellate Division reversed as to Dr. Tagliamonti and the Hospital and granted summary judgment dismissing the complaints against them. Only these rulings are before us.

In McDermott v Torre (56 NY2d 399), we held that the continuous treatment of a patient by the attending physician will not result in an extension of the Statute of Limitations as against an independent pathology laboratory which allegedly misread a biopsy. We reject the argument that a different rule should be applied here simply because the misreading of the biopsy was by a pathologist working in a hospital laboratory rather than by an outside laboratory, as in McDermott. We find no evidence of "an agency or other relevant relationship” between Dr. Tagliamonti and Dr. Mishrick or of a "continuing relation” between Dr. Tagliamonti and the decedent to warrant extension of the Statute of Limitations as against Dr. Tagliamonti (see, McDermott v Torre, supra, at pp 403, 408). Thus, under McDermott, the Statute of Limitations is not extended as against Dr. Tagliamonti or against the Hospital to the extent that its liability may be predicated on Dr. Tagliamonti’s negligence. Nor is the Statute of Limitations extended against the Hospital by imputing to it the continuous treatment of decedent by Dr. Mishrick by virtue of his status as a physician affiliated with the Hospital (see, Ruane v Niagara Falls Mem. Med. Center, 60 NY2d 908).

Plaintiffs argue that further discovery is required to reveal necessary facts pertaining to the relationship between Dr. Tagliamonti and Dr. Mishrick so as to oppose summary judgment. Summary judgment may not be defeated on the ground that more discovery is needed, where, as here, the side advancing such an argument has failed to ascertain the facts due to its own inaction (see, Tausig & Son v Providence Wash. Ins. Co., 28 AD2d 279, affd 21 NY2d 1022; Silinsky v StateWide Ins. Co., 30 AD2d 1, 5-6). Plaintiffs had ample opportunity to commence discovery proceedings before this motion was brought but did not do so.

Insofar as Fonda v Paulsen (46 AD2d 540), and cases relying on it (see, e.g., Walpole v Whitsell, 110 Misc 2d 508; Bongiorno v Brookdale Med. Center, 119 Misc 2d 442) are to the contrary, they should not be followed (see, Modzelewski v Kingsbrook Jewish Med. Center, 129 Misc 2d 461, mod 120 AD2d 120).

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

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Appellant, v Leonard Gonzalez, Respondent.
    Argued November 14, 1986;
    decided November 25, 1986
   Appeal dismissed. Our examination of the decision of the Appellate Division reveals that an alternative ground for its holding — the trial court’s failure to give a specified jury instruction — was not preserved as a question of law for appellate review. Thus, the order of reversal appealed from, notwithstanding its recital that it rests solely "on the law”, is not based "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]; see generally, People v Lawlor, 67 NY2d 904; People v Dercole, 52 NY2d 956).


text:
    The People of the State of New York, Appellant, v James Lavender, Respondent.
    Argued November 19, 1986;
    decided November 25, 1986
   Appeal dismissed. Our examination of the decision of the Appellate Division reveals that an alternative ground for its holding — the trial court’s failure to respond to proper questions from the jury — was not preserved for appellate review. Thus, the order of reversal appealed from, notwithstanding its recital that it rests solely "on the law”, is not based "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]; see generally, People v Gonzalez, 68 NY2d 995 [decided herewith]; People v Dercole, 52 NY2d 956).


text:
    F. L. D. Construction Corp., Appellant, v Henry G. Williams, as Commissioner of the New York State Department of Environmental Conservation, Respondent.
    Submitted November 3, 1986;
    decided November 25, 1986
   Chief Judge Wachtler taking no part.


text:
    Rose Quain et al., as Executors of Mark Quain, Deceased, Respondents, v Buzzetta Construction Corp., Appellant, and City of New York, Respondent.
    Submitted October 20, 1986;
    decided November 25, 1986
   Motion to resettle the order of this court, dated September 4, 1986, granting defendant Buzzetta Construction Corp. leave to appeal and to strike portions of defendant’s jurisdictional statement denied, without prejudice to its renewal in relation to the appeal (see, 22 NYCRR 500.2 [c]). [See, 68 NY2d 606.]


text:
    The People of the State of New York, Respondent, v Curtis Wilkins, Also Known as Curtis Williams, Appellant.
    Submitted November 17, 1986;
    decided November 23, 1986
   Motion to amend this court’s opinion (68 NY2d 269) denied.


author: Per Curiam.

text:
    In the Matter of A. G. Ship Maintenance Corp., Respondent, v Lawrence Lezak, Appellant. (And Another Proceeding.)
    Decided December 18, 1986

      APPEARANCES OF COUNSEL

      David B. Greenfield and Gerald P. Lally for appellant.

      Henry A. Martuscello for respondent.
   OPINION OF THE COURT

Per Curiam.

Petitioner instituted this special proceeding seeking an order adjudging respondent in contempt of court. On respondent’s motion Special Term dismissed the petition. In his answering papers, however, respondent had requested costs, disbursements and attorneys’ fees alleging that petitioner had instituted the proceeding in bad faith in an attempt to harass and intimidate him. Special Term denied him this relief and the Appellate Division affirmed. In denying the application, neither court indicated whether it did so because it believed the court lacked power to grant the requested relief or because, though the relief was available, it believed such relief was undeserved. The matter is now before us by our leave so that we may consider a matter which has drawn increasing attention from the courts, whether a court may, in the absence of legislation authorizing it to do so, impose a sanction upon an attorney or litigant appearing before it who asserts frivolous claims or pursues frivolous pretrial procedures.

Respondent is an attorney employed by the Waterfront Commission of New York Harbor, a body charged with the responsibility of eliminating racketeering and other corrupt and criminal activities on the New York and New Jersey waterfronts of the harbor. Petitioner is a stevedoring corporation licensed by the Commission. One of the conditions for maintaining a stevedoring license is that those operating the company possess good character. In 1976 the Commission instituted proceedings against petitioner, its officers and directors, and its affiliated companies charging that they lacked good character because petitioner had allegedly billed customers for stevedoring services not actually performed. After several months of proceedings, petitioner admitted various charges and paid a fine of $130,000. Respondent represented the Commission in that matter and petitioner claims that during the proceedings respondent falsely represented to the Administrative Law Judge, in violation of Judiciary Law § 487, that -he did not possess any exculpatory Brady material and also that he wrongfully withheld such material from petitioner (see, Brady v Maryland, 373 US 83). Its claim was based upon information developed at a hearing on unrelated charges against one of petitioner’s employees filed in 1979. Petitioner demanded that the Commission bar respondent from any further proceedings involving petitioner or its affiliates. The Commission denied petitioner’s request but it offered to reopen the hearing to consider petitioner’s claim that Brady material had been withheld. Petitioner did not accept the invitation but, instead, it filed a complaint with the Disciplinary Committee of the First Department in 1980 charging respondent with professional misconduct. After investigating the complaint, the Committee decided not to file charges.

In 1984 respondent, acting on behalf of the Commission, instituted an investigation against A.G. Container Repair Co., a joint venture partner of petitioner, to determine if it was involved in Federal tax violations and, on the basis of information developed during that investigation, respondent issued a subpoena duces tecum to Worldwide Management Consultants, Inc., another related company, seeking to examine its books and records in an effort to determine if Worldwide was used by A.G. Container Repair as a means to understate its income.

Following these events, petitioner instituted three separate proceedings: the present contempt proceeding, pursuant to Judiciary Law § 753 et seq., charging respondent with falsely representing to the Administrative Law Judge during the now closed 1976 proceedings that he lacked exculpatory Brady material and in failing to turn over Brady material pursuant to the court’s directions; an article 78 proceeding in which it sought to bar the Commission’s counsel from representing respondent in the contempt proceeding claiming that in doing so he was beyond the authority of the Commission; and a second article 78 proceeding, filed after the court had ruled against it on the prior article 78 proceeding, claiming that the Commission’s representation of respondent violated various disciplinary rules contained in the Judiciary Law. In response to the contempt petition, respondent alleged that petitioner had instituted the proceedings in bad faith and he sought an adjudication of his claim and an award of disbursements and attorneys’ fees as damages or sanction. Supreme Court dismissed all three proceedings and denied respondent the requested relief. Petitioner subsequently appealed these orders to the Appellate Division but abandoned the appeals before they were heard. On respondent’s cross appeals the Appellate Division affirmed the order denying his claim for damages.

For purposes of this appeal, we accept respondent’s contention that petitioner instituted these proceedings without any legal or factual justification and that the courts below would be warranted in granting him attorneys’ fees and disbursements if they had the power to do so. Moreover, we recognize that frivolous court proceedings present a growing problem which must be deterred. Indeed, the problem is larger than the difficulties highlighted by the facts of this case, extending beyond the institution of vexatious litigation or the assertion of meritless defenses or counterclaims and including baseless procedures pursued to gain tactical advantage in a lawsuit or to exhaust an opponent. Such practices not only injure and debilitate the honest litigant, but they also waste judicial resources. Existing remedies for such conduct, such as disciplinary proceedings for attorneys, contempt or possibly criminal proceedings if perjury is involved, or seeking redress in a separate action for damages on theories of malicious prosecution or abuse of process have not proved effective to deter frivolous litigation in the past. Thus, the assessment of attorneys’ fees and disbursements has become the single most important device suggested to deter such misconduct (see generally, Goodhart, Costs, 38 Yale LJ 849, 872-874 [1929]; McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn L Rev 619 [1931]; Van Patten and Willard, Limits of Advocacy: A Proposal for a Tort of Malicious Defense in Civil Litigation, 35 Hastings LJ 891, 921-936 [1984]; Comment, Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis, 88 Yale LJ 1218 [1979]). We are asked to approve such awards either as a sanction authorized under the exercise of the court’s inherent powers or to create a new remedy or cause of action which may be asserted within the action itself to provide a prompt remedy to an aggrieved party.

Under the general rule, attorneys’ fees and disbursements are incidents of litigation and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties or by statute or court rule (see, City of Buffalo v Clement Co., 28 NY2d 241, 262-263; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21-22). The rule is based upon the high priority accorded free access to the courts and a desire to avoid placing barriers in the way of those desiring judicial redress of wrongs. The preferred remedy for deterring malicious or vexatious litigation has been the use of separate, plenary actions after the challenged proceedings have concluded (see, Curiano v Suozzi, 63 NY2d 113; Hauser v Bartow, 273 NY 370; Wiener v Wiener, 84 AD2d 814, 815; Prosser and Keaton, Torts §§ 119, 120, at 874-875, 892 [5th ed]).

Notwithstanding this general rule, the parties have addressed themselves largely to the facts of this case, assuming from several recent decisions, which respondent asks us to approve, that the courts may elect to exercise their inherent powers to award attorneys’ fees and disbursements as a sanction for frivolous litigation (see, Ltown Ltd. Partnership v Sire Plan, 108 AD2d 435, mod 69 NY2d 670; Gabrelian v Gabrelian, 108 AD2d 445, appeal dismissed 66 NY2d 741; Oppenheim & Macnow v Worth, 109 AD2d 602; Matter of Photosound, Inc. v Gourdine, 126 Misc 2d 495, mod 118 AD2d 472).

Under the State Constitution the authority to regulate practice and procedure in the courts is delegated primarily to the Legislature (NY Const, art VI, § 30). There are some matters which are not subject to legislative control because they deal with the inherent nature of the judicial function (see, e.g., Riglander v Star Co., 98 App Div 101, affd 181 NY 531). Generally, however, the Legislature has the power to prescribe rules of practice governing court proceedings, and any rules the courts adopt must be consistent with existing legislation and may be subsequently abrogated by statute (Cohn v Borchard Affiliations, 25 NY2d 237). In addition, court rules must be adopted in accordance with procedures prescribed by the Constitution and statute (NY Const, art VI, § 30; Judiciary Law § 211 [1] [b]).

The Legislature has not been indifferent to the problems suggested by this case. In 1985 it adopted CPLR 8303-a authorizing the imposition of attorneys’ fees and costs not exceeding $10,000 against parties asserting frivolous medical malpractice claims and, in 1986, as part of the Governor’s program to reduce insurance costs, the Legislature expanded the scope of that section by amending it to authorize such sanctions in all personal injury litigation (L 1986, ch 220; see also, Minutes of Office of Court Administration’s Advisory Committee on Civil Practice, at 6-7 [May 16, 1986]). It has not addressed the problem generally, however.. Thus because frivolous litigation is so serious a problem affecting the proper administration of justice, the courts may proscribe such conduct and impose sanctions in this exercise of their rule-making powers, in the absence of legislation to the contrary (see, NY Const, art VI, § 30; Judiciary Law § 211 [1] [b]).

It is not necessary to determine whether the power of the courts to impose sanctions for frivolous proceedings is inherent to the judicial function or is merely delegable by the Legislature under our Constitution. The fact is that the most practicable means for establishing appropriate standards and procedures which will provide an effective tool for dealing with this problem is by plenary rule rather than by ad hoc judicial decisions.

Thus in the case now before us sanctions cannot be imposed because at the time the petitioner instituted the proceeding, there was neither a statute nor a court rule authorizing the imposition of sanctions for frivolous actions.

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

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

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


author: Hancock, Jr., J.

text:
    Jacklynn N. Price, Respondent, v Harold Price, Appellant.
    Argued November 11, 1986;
    decided December 19,1986

      POINTS OF COUNSEL

      James H. Goodfriend for appellant.

      Isabelle C. Flaherty, Barry Leibowicz and Paul Morgenstern for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

We hold that under the Equitable Distribution Law an increase in the value of separate property of one spouse, occurring during the marriage and prior to the commencement of matrimonial proceedings, which is due in part to the indirect contributions or efforts of the other spouse as homemaker and parent, should be considered marital property (Domestic Relations Law § 236 [B] [1] [d] [3]). Under the statute there are two categories of property: marital property which is subject to equitable distribution and separate property which is not (Domestic Relations Law § 236 [B] [1] [c], [d]). Marital property is broadly defined as "all property acquired by either or both spouses during the marriage” (Domestic Relations Law § 236 [B] [1] [c]). Separate property, which is specifically described as an exception to marital property, includes property "acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse” (Domestic Relations Law § 236 [B] [1] [d] [1]). Separate property also includes "property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse” (Domestic Relations Law § 236 [B] [1] [d] [3]; emphasis supplied).

The narrow question of statutory construction before us is whether the terms "contributions or efforts”, contained in the italicized phrase quoted above, are intended to incorporate contributions or efforts of the other spouse as homemaker and parent. Because we hold that increases in value due in part to such efforts or contributions are to be considered under section 236 (B) (1) (d) (3), such increases are excepted from separate property and treated as marital property available for equitable distribution by the court pursuant to Domestic Relations Law § 236 (B) (5).

I

The instant action, commenced in 1981, culminated in a judgment of divorce in April 1984. At issue is the treatment to be given under section 236 (B) (1) (d) (3) to defendant’s ownership interest in the Unity Stove Company (Unity), a family business engaged in the wholesale supply of kitchen parts and appliances. Defendant commenced his association with Unity several years before the parties were married in 1969. He acquired 25% of the outstanding stock of Unity by . gift from his father in 1957 and another 25% by gift in 1972. After commencement of the divorce action but prior to the divorce judgment, defendant became sole owner of Unity when the outstanding shares of the corporation were redeemed. He also became the owner of a corporation which holds title to the real estate holdings of Unity.

Before the marriage plaintiff was employed as a registered nurse at Mount Sinai Hospital. After the marriage, for a period of six months, she worked full time at Unity and, for the next six months, part time as a private duty nurse. When the first of the parties’ two children was born in 1972, plaintiff gave up her outside employment in order to devote her efforts to being a homemaker and parent. There is evidence that during the marriage she attended conventions with her husband and assisted him as hostess at various business-related social events.

Following trial of the divorce action, Supreme Court found that defendant’s interests in Unity and the related company constituted "separate property” since plaintiff had acquired these stock interests as gifts (see, Domestic Relations Law § 236 [B] [1] [d]). The court rejected plaintiff’s contention that the appreciation in value of defendant’s separate property should be treated as marital property to the extent that any such increase was due, in part, to her contributions and efforts (Domestic Relations Law § 236 [B] [1] [d] [3]). It found that whatever direct contributions she may have made to Unity were "minimal and inconsequential” and that her indirect contributions were "likewise insignificant”.

In a comprehensive opinion, the Appellate Division unanimously modified on the law and the facts (113 AD2d 299), concluding that plaintiff’s indirect contributions as a homemaker and mother, as well as her direct contributions to the business, "however minimal”, could warrant an award of a percentage of the appreciation of defendant’s separate holdings in Unity and the related company (Domestic Relations Law § 236 [B] [1] [d] [3]; § 236 [B] [5]). Accordingly, the Appellate Division remitted the matter to Supreme Court to determine the extent of the appreciation, if any, in defendant’s separate property and the amount "of such appreciation to which plaintiff is entitled by virtue of her direct and indirect contributions.”

Following its determination, the Appellate Division denied the parties’ reciprocal motions for reargument and granted defendant’s motion for leave to appeal to this court pursuant to CPLR 5602 (b). It has certified the following question to us: "Whether a nontitled spouse’s 'contributions or efforts’ (Domestic Relations Law § 236 [B] [1] [d] [3]) as homemaker and parent are entitled to recognition by the court in awarding said spouse a share of the appreciated value of the titled spouses separate property which occurred during the parties’ marriage”.

For reasons which will appear, the question should be answered in the affirmative and the order of the Appellate Division affirmed.

II

In construing Domestic Relations Law § 236 (B) (1) (d) (3) and determining whether the Legislature intended that efforts of the nontitled spouse as homemaker and parent should be included, we must, of course, look to the particular words for their meaning, both as they are used in the section and in their context as part of the entire statute. But we must also look beyond the statutory language and consider the history leading to the adoption of the Equitable Distribution Law and the legislative purpose and policy considerations underlying this radical change in the Domestic Relations Law (L 1980, ch 281, § 9) (see, Ferres v City of New Rochelle, 68 NY2d 446, 451; New York State Bankers Assn. v Albright, 38 NY2d 430, 434, 436, 437; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 91, 92, 96, 124). For it is fundamental that in "the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle” (People v Ryan, 274 NY 149, 152; see, Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38).

As background for an analysis of the statute, it is helpful to review the policy considerations leading to the enactment of the Equitable Distribution Law and to restate the main purpose of the legislation. The major reform accomplished by the law was a radical alteration of the traditional method of distributing property on dissolution of marriage. As we explained in O'Brien v O’Brien (66 NY2d 576, 585), the Legislature replaced the existing system of distribution, which depended on the common-law rules of property and had led to unfair results, "with equitable distribution of marital property, an entirely new theory which considered all the circumstances of the case and of the respective parties to the marriage (Assembly Memorandum, 1980 NY Legis Ann, at 129-130). Equitable distribution was based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker” (id., at p 585 [emphasis added]; see, Governor’s Memorandum of Approval, 1980 McKinney’s Session Laws of NY, at 1863; Assembly Memorandum, 1980 NY Legis Ann, at 129-130). The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends "not only upon the respective financial contributions of the partners, but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home (see, Governor’s Memorandum, McKinney’s Session Laws of NY, 1980, p 1863; see, also, Litman v Litman, 93 AD2d 695, 696, app dsmd 60 NY2d 586; Forcucci v Forcucci, 83 AD2d 169, 171; Wood v Wood, 119 Misc 2d 1076, 1079)” (Brennan v Brennan, 103 AD2d 48, 52; see, Capasso v Capasso, 119 AD2d 268; Wegman v Wegman, 123 AD2d 220). This "economic partnership” concept of marriage and the recognition of the value of "non-remunerated services” such as homemaking are exhibited in two important provisions in the statute: (1) that in making an equitable distribution the court shall consider any "contributions and services as a spouse, parent * * * and homemaker” (§236 [B] [5] [d] [6]); and (2) that in determining the amount and duration of maintenance the court shall consider "contributions and services of the party seeking maintenance as a spouse, parent * * * and homemaker” (§ 236 [B] [6] [a] [8]).

For any court making an equitable distribution under the statute, the necessary starting point is the critical determination of what constitutes "marital property” — the designation of the particular assets which the court is to distribute equitably pursuant to section 236 (B) (5). The Legislature, in defining this basic term. "marital property”, we have held, intended that the term should be construed broadly in order to give effect to the "economic partnership” concept of the marriage relationship recognized in the statute (see, Majauskas v Majauskas, 61 NY2d 481, 489, 490). The term "separate property”, on the othér hand, which is described in the statute as an exception to marital property, we have stated, should be construed narrowly (Majauskas v Majauskas, supra, at p 489). These observations are of particular relevance here because the question óf whether Domestic Relations Law § 236 (B) (1) (d) (3) includes increases in value due to contributions or efforts of a spouse as parent and homemaker involves a determination of what should be excluded from separate property and, thereby, included in marital property. Thus, to effect the broad construction of the term "marital property” mandated by our holding in Majauskas v Majauskas (supra), it follows that the exclusion from separate property for increases in value due, in part, to contributions or efforts of the nontitled spouse (§ 236 [B] [1] [d] [3]) should be broadly construed. (See, Scheinkman, 1981 Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C236B:4, 1986 Supp Pamphlet, p 205.)

With this background we turn to an analysis of the words of the statute, being guided by the accepted rules of construction that: (1) statutory language is generally given its natural and most obvious meaning (McKinney’s Cons Laws of NY, Book 1, Statutes § 94; see, Association of Contr. Plumbers v Contracting Plumbers Assn., 302 NY 495, 500); and (2) if there is nothing to indicate a contrary intent, terms of general import will ordinarily be given their full significance without limitation (McKinney’s Cons Laws of NY, Book 1, Statutes § 114; Matter of Board of St. Opening, 133 NY 329, 333-334). Here, the words "contributions or efforts” are used in the inclusive, general sense and, if given their natural and obvious meaning, would comprise contributions and efforts of any nature, including those of a spouse as homemaker and parent. Section 236 (B) (1) (d) (3) contains no words of limitation, and there is nothing to suggest that the general terms "contributions or efforts” should not be given their full significance (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 114).

Giving the words "contributions or efforts” their natural and obvious meaning as general and comprehensive terms is consistent with a third established rule of construction: that a particular construction of a statute should be preferred which furthers the statute’s object, spirit and purpose (see, Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38, 39, supra; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677, 685, 686; McKinney’s Cons Laws of NY, Book 1, Statutes § 96). Here, a broad construction of the terms "contributions or efforts” in section 236 (B) (1) (d) (3), as we have noted, results in enlarging the sum of marital property available for distribution and, thus, promotes the basic "economic partnership” concept of the statute.

Defendant argues, however, that two other provisions in section 236 (B) support a limited interpretation of the terms "contributions or efforts” in section 236 (B) (1) (d) (3). He contends that because the Legislature has specified that a court should consider contributions and services as a spouse, parent and homemaker in making an equitable distribution of marital property (§ 236 [B] [5] [d] [6]) and in fixing the amount and duration of maintenance (§236 [B] [6] [a] [8]), it follows that the Legislature did not intend that a court should consider such contributions in determining whether an appreciation in separate property should be treated as marital property (§ 236 [B] [1] [d] [3]) (see, Jolis v Jolis, 98 AD2d 692). We find this argument unpersuasive.

The purpose and function of section 236 (B) (1) (d) (3) are distinct from and not comparable to those of the two sections to which defendant refers (§ 236 [B] [5] [d] [6]; § 236 [B] [6] [a] [8]). In those sections, the Legislature has set forth precisely the several equitable considerations which must be weighed in making a distribution of marital property and in setting the amount and duration of maintenance. The specific mention of contributions and services of a spouse as parent and homemaker is consistent with the detailed enumeration of the equitable considerations contained in those sections. Section 236 (B) (1) (d) (3), on the other hand, is part of the definition of separate property. As we have noted, separate property, as an exception to the broader term of marital property, is to be narrowly construed. Giving the words "contributions or efforts” their natural and obvious meaning as general and inclusive terms results in expanding the extent of marital property and diminishing that of separate property. That result is entirely compatible with the legislative scheme of defining "marital property” broadly and "separate property” narrowly (see, Majauskas v Majauskas, supra, at pp 489-490). An enumeration of specific types of "contributions or efforts” in section 236 (B) (1) (d) (3) would be contrary to this statutory scheme. Thus, the fact that the Legislature did not mention services as a parent and homemaker is consistent with our reading of the section and does not support the limited construction urged by defendant.

Ill

We hold, therefore, that where separate property of one spouse has appreciated during the marriage and before execution of a separation agreement or commencement of a matrimonial proceeding and where such appreciation was "due in part” to the contributions or efforts of the nontitled spouse as parent and homemaker, the amount of that appreciation should be added to the sum of marital property for equitable distribution (§ 236 [B] [5]). Whether assistance of a nontitled spouse, when indirect, can be said to have contributed "in part” to the appreciation of an asset depends primarily upon the nature of the asset and whether its appreciation was due in some measure to the time and efforts of the titled spouse. If such efforts, as allegedly is true of defendant’s interest in Unity, were aided and the time devoted to the enterprise made possible, at least in part, by the indirect contributions of the nontitled spouse, the appreciation should, to the extent it was produced by efforts of the titled spouse, be considered a product of the marital partnership and hence, marital property (see, Nolan v Nolan, 107 AD2d 190, 193, where the court properly concluded that the indirect contributions of the wife as parent and homemaker entitled her to a share in the appreciation of securities which resulted, at least in part, from the time and effort that the titled spouse devoted to their management; see generally, Scheinkman, 1981 Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C236B:4, 1986 Supp Pamphlet, p 205; Foster and Freed, Price v Price: The Price is Right?, NYLJ, Dec. 30, 1985, p 3, col 1; see also, Majauskas v Majauskas, supra, at p 492, holding that an incremental increase in the value of the titled spouse’s pension rights occurring during the marriage was the product of his continued employment and, should, therefore, be treated as marital property pursuant to the provisions pertaining to pension rights [Domestic Relations Law § 236 (B) (5) (d) (4)]). As a general rule, however, where the appreciation is not due, in any part, to the efforts of the titled spouse but to the efforts of others or to unrelated factors including inflation or other market forces, as in the case of a mutual fund, an investment in unimproved land, or in a work of art, the appreciation remains separate property, and the nontitled spouse has no claim to a share of the appreciation.

The question under section 236 (B) (1) (d) (3) as to indirect contributions of the nontitled spouse as parent and homemaker is whether there was an appreciation of separate property due to the efforts of the titled spouse during the period when it is shown that those efforts were being aided or facilitated in some way by these indirect contributions. If so, the amount of appreciation during that period is considered a product of the marital partnership over which the trial court "retains the flexibility and discretion to structure [a] distributive award equitably” (O’Brien v O’Brien, 66 NY2d 576, 588, supra). The nature and measure of the services performed by the nontitled spouse as parent, and homemaker and the degree to which they may have indirectly contributed to the appreciation of separate property, are matters to be weighed and decided by the trial court — not in making this initial determination under section 236 (B) (1) (d) (3) — but in making its distribution of the appreciation as marital property under section 236 (B) (5).

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

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

Order affirmed, etc.

      .We address only the specific question of law because the scope of our review does not extend beyond the certified question as it reads or is reasonably interpretable (Cohen and Karger, Powers of the New York Court of Appeals § 86, at 363 [rev ed]; see, Mohrmann v Kob, 291 NY 181, 190). We interpret the certified question here as referring to an appreciation which occurred "during the parties’ marriage and before the execution of a separation agreement or the commencement of a matrimonial action.”

      .The New York State Assembly Memorandum in Support of Legislation confirms an interpretation of "contributions or efforts” in section 236 (B) (1) (d) (3) as including services of a spouse as parent and homemaker. The memorandum states in pertinent part: '(t]he exception with regard to the increment of value recognizes that a homemaker aids in making the spouse involved in business successful by permitting him/her the freedom and assistance to devote energy to financial endeavors”. (Bill Jacket tó L 1980, ch 281, at 2, reprinted in 11C Zett-Kaufman-Kraut, NY Civ Prac, Appendix B, at App B-3; emphasis added.)

      .Defendant’s argument is essentially an application of the maxim "expressio unius est exclusio dlterius” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240) — that by mentioning certain things in a statute (i.e., contributions or efforts) and omitting other things (i.e., specific contributions or efforts as parent and homemaker) the Legislature intended that the omitted items should be excluded. The maxim "is merely an aid to be utilized in ascertaining the meaning of a statute when its language is ambiguous, and should be applied to accomplish the legislative intention, not to defeat it.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240, at 414.)

      .As to the merits of plaintiffs claim to a share in the appreciation of Unity and whether she can assert a similar claim to any appreciation in the value of the corporation which holds title to Unity’s real estate, we express no view. These are matters of proof for the trial court on remand from the Appellate Division.

      . Here we must disagree with the Appellate Division in its holding that this initial determination whether to treat the appreciation in separate property as marital property "will depend on a variety of factors including the length of the marriage, the relationship between the parties, [and] the type of services actually performed by the nontitled spouse” (113 AD2d 299, 306-307). In making this determination, the court is not concerned with evaluating the contributions or efforts of the nontitled spouse or with determining the extent, if any, of the appreciation due to those efforts. These and the other factors mentioned by the Appellate Division are appropriate considerations in making the equitable distribution of the appreciation as marital property (see, Domestic Relations Law § 236 [B] [5] [d] [2], [6], [10]).


author: Alexander, J.

text:
    The People of the State of New York, Respondent, v Peter Lancaster, Appellant.
    Argued November 13,1986;
    decided December 18,1986

      POINTS OF COUNSEL

      Joseph E. Fahey for appellant.

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Michael P. Marmor of counsel), for respondent.
   OPINION OF THE COURT

Alexander, J.

We hold today that the People are under no obligation to charge the Grand Jury with respect to a potential defense of mental disease or defect, and therefore have no duty to present to the Grand Jury evidence within their possession of defendant’s psychiatric history in support of such a charge.

I.

On October 21, 1984, Peter Lancaster, while a patient at the Hutchings Psychiatric Center in Syracuse pursuant to a CPL article 330 commitment order, allegedly beat and choked another patient without provocation. Employees at the facility restrained the defendant before he was able to inflict further injury. The defendant was arraigned initially on a misdemeanor charge of assault in the third degree (Penal Law § 120.00 [1]), and ordered committed for a mental competency examination pursuant to CPL 730.30 (1). Thereafter, the Peopie notified defendant they were presenting the case to the Grand Jury, at which time defense counsel informed the prosecutor that defendant was incoherent and assaultive and would not be able to intelligently exercise his right to appear before the Grand Jury (CPL 190.50 [5]). The defendant’s mental state notwithstanding, the People presented its case to the Grand Jury pursuant to CPL 730.40 (3) which provides in pertinent part that when a court has committed an accused by temporary order of observation, and the People subsequently elect to present the charges to the Grand Jury, such Grand Jury need not hear the defendant as it ordinarily must under CPL 190.50. The People presented testimony from the victim and certain employees and patients at the facility. Neither the defendant, nor anyone on his behalf, testified before the Grand Jury, and the People did not present any evidence of defendant’s psychiatric history, his mental condition at the time of the offense, or the fact that he was a patient at the facility pursuant to a previous verdict of not guilty by reason of mental disease or defect. The People did, however, charge the Grand Jury that they may presume the defendant’s sanity, that such presumption is rebuttable by evidence showing the defendant was insane at the time of the offense and further instructed the Grand Jury as to the defense of mental disease or defect as that defense was defined in Penal Law former § 30.05, which was applicable at the time (Penal Law former § 30.05, repealed Nov. 1, 1984, reenacted as an affirmative defense Penal Law § 40.15). Defendant was indicted for attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the second degree (Penal Law § 120.05 [1]) and assault in the third degree (Penal Law § 120.00 [1]).

Based upon psychiatric examination reports, the trial court subsequently determined that defendant lacked the capacity to understand the proceedings against him and was unable to assist in his own defense and ordered him committed to the Mid-Hudson Psychiatric Facility, where he remained for over five months until he was determined competent to proceed (CPL 730.50). When defendant was deemed competent, he moved to dismiss the pending indictment (CPL 210.20 [1] [c]) on the grounds that the People had wrongfully withheld from the Grand Jury evidence within their possession of his psychiatric history, which would have supported a potential defense of insanity or would have tended to negate the requisite intent element of the charged crimes; that the indictment was invalid because his condition precluded him from exercising his right under CPL 190;50 (5) (a) to appear before the Grand Jury in that he was legally incompetent during the time the case was presented to the Grand Jury; and that the evidence submitted to the Grand Jury was not legally sufficient to sustain the indictment.

Trial court dismissed the counts of attempted murder and second degree assault for insufficient evidence. The Appellate Division reinstated both counts, finding the evidence sufficient to sustain all three counts of the indictment and holding, on the authority of People v Valles (62 NY2d 36), that the People were justified in relying on the presumption of sanity to establish a prima facie case before the Grand Jury and therefore had no duty to instruct the Grand Jury as to a possible defense of mental disease or defect because the determination that a person is not responsible by reason of mental disease or defect is not within the province of the Grand Jury (114 AD2d 92). The case is before us by leave of a Judge of this court (67 NY2d 945). For the reasons that follow we affirm the order of the Appellate Division.

II.

Article I, § 6 of our State Constitution guarantees 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; People v Ford, 62 NY2d 275, 280; People v Iannone, 45 NY2d 589, 594). The traditional purpose of the Grand Jury is to prevent prosecutorial excess by ensuring that "before an individual may be publicly accused of crime and put to the onerous task of defending himself from such accusations, the State must convince a Grand Jury composed of the accused’s peers that there exists sufficient evidence and legal reason to believe the accused guilty” (People v Iannone, 45 NY2d 589, 594, supra; see, People v Ford, 62 NY2d 275, 282, supra). Accordingly, we have long recognized the Grand Jury performs the dual function of investigating criminal activity to determine whether sufficient evidence exists to accuse a citizen of a crime, and of protecting individuals from needless and unfounded prosecutions (People v Pelchat, 62 NY2d 97, 104; People v Ford, 62 NY2d 275, 282, supra; Matter of Additional Jan. 1979 Grand Jury v Doe, 50 NY2d 14, 19; People v Iannone, 45 NY2d 589, 594, supra; People v Calbud, Inc., 49 NY2d 389, 396; People v Johnson, 20 NY2d 220, 225; see also, United States v Calandra, 414 US 338, 343; United States v Dionisio, 410 US 1, 16-17; Wood v Georgia, 370 US 375, 390; Costello v United States, 350 US 359, 362). In order to further the safeguards of indictment by Grand Jury and to enable that body to fulfill its functions, the Grand Jury is accorded broad investigative powers (CPL art 190; Matter of Stem v Morgenthau, 62 NY2d 331, 336) and ought to be well informed concerning the circumstances of the case before it, for the Grand Jury exercises its discretion not only in determining that legally sufficient evidence and reasonable grounds exist to force the accused to trial on the merits, but also in charging a greater or lesser offense, or in charging a single or numerous counts (Vasquez v Hillery, 474 US 274, —, 106 S Ct 617, 623; People v Valles, 62 NY2d 36, 40, supra [Kaye, J., concurring]).

The People generally enjoy wide discretion in presenting their case to the Grand Jury (People v Rockwell, 97 AD2d 853) and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused (People v Isla, 96 AD2d 789) even though such information undeniably would allow the Grand Jury to make a more informed determination. In the ordinary case, it is the defendant who, through the exercise of his own right to testify and have others called to testify on his behalf before the Grand Jury (CPL 190.50 [5], [6]), brings exculpatory evidence to the attention of the Grand Jury. Except to the limited extent that CPL 190.50 (5), (6) gives the accused the right to present such testimony, the Grand Jury proceeding is not intended to be an adversary proceeding (People v Brewster, 63 NY2d 419, 422). The Grand Jury and the petit jury are different bodies with different functions, and the People do not have the same burden of proof before the Grand Jury (CPL 190.65 [1], on evidence submitted by the People, Grand Jury must find reasonable cause to believe accused committed a crime) as they have before the petit jury (CPL 300.10 [2], on evidence submitted by People, petit jury must find proof of guilt beyond a reasonable doubt). Neither do the People have the same obligation of disclosure at the Grand Jury stage as they have at the trial stage (see, Brady v Maryland, 373 US 83; People v Hill, 122 Misc 2d 895, 897).

The prosecutor’s discretion in presenting the case to the Grand Jury, however, is not unbounded, for it is settled that at a Grand Jury proceeding, the prosecutor performs the dual role of advocate and public officer, charged with the duty not only to secure indictments but also to see that justice is done; "as a public officer he owes a duty of fair dealing to the accused and candor to the courts” (People v Pelchat, 62 NY2d 97, 105, supra). The prosecutor’s duty of fair dealing extends not only to the submission of evidence, but also to instructions on the law, for, by statute, responsibility for instructing the Grand Jury on the law rests solely with the court and the prosecutor, and the Grand Jury may not seek legal advice from any other source (CPL 190.25 [6]; People v Di Falco, 44 NY2d 482, 486-487; Matter of Report of Special Grand Jury, 77 AD2d 199, 202). While generally the prosecutor is required to instruct the Grand Jury on the law with respect to the matters before it (CPL 190.25 [6]; People v Valles, 62 NY2d 36, 38, supra), we have held that he need not instruct the Grand Jury as to every conceivable defense suggested by the evidence, but ordinarily need instruct only as to those "complete” defenses which the evidence will support (People v Valles, 62 NY2d 36, 39, supra).

Defendant maintains that because the defense of mental disease or defect is a complete defense, Valles requires that the prosecutor must instruct the Grand Jury as to that defense. Moreover, because the Grand Jury here was instructed as to the defense of mental disease or defect, defendant essentially argues that Valles implicitly imposes a concomitant duty upon the prosecutor to present to the Grand Jury such evidence within his possession as would support such a defense. Especially is this true here, defendant argues, because his mental incompetency prevented him from exercising his right to appear before the Grand Jury and to present that evidence. Thus, according to defendant, had the People fulfilled their duty to disclose his psychiatric history to the Grand Jury, that body would have had the opportunity to fulfill its function of determining whether he should be held to answer charges for which he may not be criminally responsible.

In Valles, we held that the People properly instructed the Grand Jury as to the complete defense of justification, but were not required to give instructions as to the mitigating defense of extreme emotional disturbance, even though that defense was also suggested by the evidence. We said the extent of the prosecutor’s obligation to instruct the Grand Jury on a particular defense depends upon whether that defense has the "potential for eliminating a needless or unfounded prosecution” (People v Valles, 62 NY2d 36, 38, supra). We further explained that a helpful approach for this purpose would be to distinguish between exculpatory and mitigating defenses, exculpatory defenses being complete defenses because, if believed, they would result in a finding of no criminal liability (People v Valles, 62 NY2d 36, 38, supra). To require instruction on complete defenses is to assist the Grand Jury in its function of protecting citizens from unfounded prosecutions, and consideration of such defenses therefore ordinarily rests within that body’s proper domain (People v Valles, 62 NY2d 36, 38-39, supra).

Valles does not require that every complete defense suggested by the evidence be charged to the Grand Jury; rather "whether a particular defense need be charged depends upon its potential for eliminating a needless or unfounded prosecution” (People v Valles, 62 NY2d 36, 38, supra). Thus, the defense of justification, for example, if proven, not only relieves a defendant of criminal liability in that his conduct is by statute deemed not criminal (see, Penal Law art 35; People v McManus, 67 NY2d 541, 548), but it also demands his immediate release (see, CPL 330.10). Accordingly, where evidence establishes a potential defense of justification, prosecution may be needless and the Grand Jury should be charged on the law regarding that potential defense because its consideration is properly within that body’s province (People v Valles, 62 NY2d 36, supra).

On the other hand, although the defense of mental disease or defect, also may be properly considered a complete defense in the sense that, if believed, it would relieve the defendant of responsibility for his otherwise criminal conduct, it is nevertheless a defense of a unique and specific nature — the defense of mental disease or defect does not have the potential for eliminating a "needless or unfounded prosecution”. Indeed, where evidence suggests a defendant suffered a mental disease or defect at the time of the offense, prosecution for the crime is necessary so that a determination may be made as to whether the defendant is to be relieved of criminal responsibility for his conduct and what the consequences of such a determination will be. While it is true that this defense reflects society’s recognition that a person suffering from mental disease or defect which deprives him of substantial capacity to know or appreciate either the nature and consequences of his conduct or that such conduct was wrong, ought not be held criminally responsible for that conduct and subjected to traditional punishment (see, Penal Law former § 30.05, reenacted Penal Law § 40.15), the legislatively mandated consequences of a successful interposition of the defense equally reflect society’s legitimate interest in knowing whether the defendant is and will continue to be a threat to himself or others because of that mental disease or defect. Where a defendant is adjudicated not responsible by reason of mental disease or defect, he is not at liberty to leave the courtroom, but is subject to immediate detention pursuant to CPL 330.10 (2) and 330.20.

The Legislature has provided for mandatory commitment procedures to follow upon a verdict of not guilty by reason of mental disease or defect. CPL 330.10 (2) provides that "[u]pon a verdict of not responsible by reason of mental disease or defect, the provisions of section 330.20 * * * shall govern all subsequent proceedings against the defendant”. CPL 330.20 provides that the court must immediately issue an examination order (CPL 330.20 [2]); that the court must direct that the defendant be committed to the custody of the Commissioner of Mental Health for the purpose of conducting such examination (CPL 330.20 [3]); and that the court must conduct an initial hearing after the examination reports are submitted to determine whether the defendant has a dangerous mental disorder, in which case criminal commitment must ensue, or whether the defendant does not have a dangerous mental disorder but is mentally ill, in which case civil commitment must ensue (CPL 330.20 [6], [7]; emphasis supplied throughout).

To require instruction to the Grand Jury on the defense of mental disease or defect would be to implicitly accord that body the latitude of electing not to indict an accused based upon the potential assertion of that defense. A Grand Jury dismissal of charges based upon that ground would circumvent the statutory provisions controlling the commitment of those adjudicated not responsible by reason of mental disease or defect and would frustrate the clear intent of the Legislature that a determination of not responsible by reason of mental disease or defect necessarily result, at least initially, in commitment and psychiatric examination. Moreover, the defense of mental disease or defect presupposes a finding of factual guilt — a finding that the defendant committed the act —before it may be determined that he will not be held criminally responsible for that act (see, e.g., 1 CJI [NY] p 820). It is the petit jury, and not the Grand Jury, that is empowered to make such determinations of guilt (People v Calbud, Inc., 49 NY2d 389, 396, supra; see, People v Galuppo, 98 Misc 2d 395, 400). We hold, therefore, that consideration of a potential defense of mental disease or defect should rest exclusively with the petit jury.

The defendant’s argument that the People were obligated to present evidence of his psychiatric history, especially since he was incapable of doing so, is without merit. Clearly, if the People have no duty to charge the Grand Jury as to the potential defense of mental disease or defect, they have no duty to present evidence, within their possession, of the defendant’s psychiatric history in support of such a charge. Moreover, inasmuch as it is the proper purpose of an indictment to bring a defendant to trial on a prima facie case, which, if unexplained, would warrant a conviction (People v Brewster, 63 NY2d 419, 422), the People are justified in relying on the presumption of sanity (People v Silver, 33 NY2d 475). Furthermore, evidence of defendant’s psychiatric history would not necessarily have had any relevance to the defendant’s mental state at the time of the offense without expert testimony connecting the defendant’s psychiatric history to the commission of the offense alleged. Thus, submission of defendant’s psychiatric history without more would not have warrantéd a charge on mental disease or defect in any event. We reject defendant’s implicit urging that we impose a duty on the prosecutor to present expert testimony on his behalf where he was not able to do so himself. As we have said, the prosecutor does not have the obligation to present all evidence to a Grand Jury that is favorable to the accused, nor does he have the obligation to present evidence that requires the weighing of competing expert testimony. A Grand Jury proceeding is not a "mini trial” (People v Brewster, 63 NY2d 419, 422, supra), but a proceeding convened primarily " 'to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to a criminal prosecution’ ” (People v Valles, 62 NY2d 36, 38, supra).

Defendant urges that the evidence of his psychiatric history nonetheless should have been presented, if not in support of an instruction on the defense of mental disease or defect, then as evidence tending to negate his intent to commit the crimes charged (see, People v Segal, 54 NY2d 58, 66). We have said in Valles, however, that where a defense is urged in mitigation, the effort is not to avoid criminal liability entirely, but to attempt to reduce the gravity of the offense committed (People v Valles, 62 NY2d 36, 39, supra). Therefore, notwithstanding the Grand Jury’s prerogative to charge a greater or lesser offense, or to charge a single or numerous counts, because the prosecutor is "free to seek an indictment for the highest crime the evidence will support”, the prosecutor is under no duty to instruct the Grand Jury as to mitigating defenses (People v Valles, 62 NY2d 36, 39, supra).

III.

Defendant also argues that the indictment should be dismissed because he was legally incompetent during the time the case was presented to the Grand Jury and was thereby precluded from exercising his right under CPL 190.50 (5) (a) to appear and testify before the Grand Jury. We agree with the Appellate Division that CPL 730.40 (3) clearly authorizes presentation of a case to the Grand Jury while a defendant is committed pursuant to a temporary order of observation and provides that, under those circumstances, the Grand Jury need not hear the defendant as it ordinarily must pursuant to CPL 190.50. To the extent the defendant raises an equal protection challenge to CPL 730.40, that argument was not preserved for our review (People v Dozier, 52 NY2d 781; People v Thomas, 50 NY2d 467, 471). We have considered defendant’s other arguments and have found them to be without merit. Therefore, based on the foregoing, the order of the Appellate Division should be affirmed.

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

Order affirmed.

      .The defendant had been found not guilty by reason of mental disease or defect as a result of a prior unrelated oifense and committed pursuant to CPL 330.10 (2) and CPL 330.20 which delineate the procedures to be followed upon such a verdict.

      .CPL 190.50 (5) (a) provides in pertinent part that "[w]hen a criminal charge against a person is * * * submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf * * * and * * * the district attorney must * * * accord the defendant a reasonable time to exercise his right to appear as a witness therein”.

      .The People charged the Grand Jury in pertinent part as follows: "And this is a section of the Penal Law that I would like you to consider. It’s not a separate count, it’s actually a definition. Penal Law section 30.05 is entitled mental disease or defect. Subsection 1 reads: is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity to know or appreciate either: (a) the nature and consequence of such conduct; or (b) that such conduct was wrong. Now, in conjunction with that there is a rebuttable presumption that you may consider. Sanity is the normal and usual condition of mankind. You may presume that every individual is sane. However, that presumption may be rebutted by credible evidence showing that the individual is insane. Okay? Now, with respect to intent and with respect to insanity or mental disease and defect, you may determine intent, sanity or insanity from the individual’s conduct before, during and after the commission of the offense.”

      .While defendant was at the Mid-Hudson Facility, the court, upon the People’s application, amended its underlying CPL article 330 commitment order, finding defendant was suffering from a "dangerous mental disorder”, defined in CPL 330.20 (1) (c) as existing where a defendant suffering from a mental illness, who because of such condition, currently constitutes a physical danger to himSelf and others. Such a finding results in commitment to a secure facility. During the CPL 330.20 hearings following the prior verdict of not guilty by reason of mental disease or defect, the court had found originally that defendant did not suffer from a "dangerous mental disorder”, but suffered from a "mental illness”, which permits retention in a nonsecure facility (CPL 330.20 [9], [11]).

      .Only after it has been determined by the Commissioner of Mental Health and the court that defendant is no longer suffering from a menta’ disease or defect may he be released.