author: Wachtler, J.

text:
    In the Matter of the Claim of Grace Valvo, Respondent. Philip Ross, as Industrial Commissioner, Appellant. In the Matter of the Claim of Debra Loll, Respondent. Philip Ross, as Industrial Commissioner, Appellant. In the Matter of the Claim of Josephine Polvino, Respondent. Philip Ross, as Industrial Commissioner, Appellant.
    Decided September 14, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Iris A. Steel of counsel), for appellant in the first, second and third above-entitled matters.

      Stephen S. Joy for respondent in the first above-entitled matter.
    Andrew M. Rothstein for respondent in the second above-entitled matter.

      Paul M. Aloi for respondent in the third above-entitled matter.

      . Disposition of these appeals has been expedited pursuant to 22 NYCRR 500.2 (g).

   OPINION OF THE COURT

Wachtler, J.

In these three cases recipients of unemployment insurance failed to report that they had performed occasional services of a business nature for friends or family members during periods of claimed unemployment. The agency found that these services constituted employment, that claimants had therefore made false statements of unemployment and that the statements were wilfully made. In each case a penalty was imposed and the claimants were also directed to repay the benefits received.

On three separate appeals the Appellate Division, Third Department, modified by annulling the penalty and repayment provisions after concluding that proof of the element of wilfulness was lacking. The Appellate Division also rejected the agency’s contention that a portion of the benefits are recoverable pursuant to subdivision 4 of section 597 of the Labor Law on the theory that claimant had made a false statement unintentionally. The agency appeals on the basis of the modifications.

VALVO CASE

Claimant, Grace Valvo, is employed by Tambe Oil, which delivers heating oil to homes and a few businesses during the winter months. From late spring to early fall it is dormant. The corporation is owned and operated by Anthony Tambe, the father-in-law of one of the claimant’s close friends. Mr. Tambe was formerly employed as a truck driver. He went into business for himself in September, 1976. The business presently consists of a truck and a garage with a small office in the garage. The owner personally delivers the oil, and in the beginning also attended to the clerical matters. However, he had so much difficulty balancing his checking account that his credit rating was soon impaired and he was on the verge of going out of business. When he mentioned this to his daughter in claimant’s presence, claimant volunteered to help. From October, 1976 to November, 1977 claimant wrote his checks and balanced the checkbook as a favor, without compensation. During this period she was receiving unemployment benefits.

In November, 1977 Mr. Tambe hired claimant as a secretary to write checks, send out the bills, record all financial transactions and answer the phone at the office. In this capacity she worked 40 hours a week at the office. During the summer months in 1978 and 1979 she was officially laid off and collected unemployment benefits. However, if a bill had to be paid for monthly utilities or outstanding loans Mr. Tambe would call claimant and ask her to write a check. He would then pick it up at her home, sign it and mail it. Claimant received no compensation for these services.

In June, 1980 the agency informed claimant that her uncompensated check-writing activities constituted employment under the Labor Law, that she had therefore made false statements when she claimed to be unemployed during the off-season, and also during the period she wrote the company’s checks on a volunteer basis before she was hired in November, 1977. It further concluded that the statement had been wilfully made and that claimant should therefore be penalized by forfeiting 664 days of future eligibility and must also repay all benefits received in the amount of $6,019.

Claimant requested a hearing which was held in July, 1980. After the hearing the administrative law judge concluded that the initial determination assessing a penalty and requiring repayment of benefits should be set aside primarily because there was no evidence of fraud or wilful misrepresentation on claimant’s part. He stated: “While claimant did perform check writing functions for this employer during the period prior to the time when she went on the payroll in November of 1977 and also during the off season of 1978, claimant could reasonably have believed that there was no employer employee relationship since she was not reporting to the employer’s establishment during the periods when she was writing such checks and she was performing no other services. This is especially the case in the period prior to her going on the payroll in November of 1977. With respect to the off season of 1978, claimant’s activities were so substantially different from her regular work assignments that even here she could reasonably have believed that she was not performing as an employee * * * In addition, she was clearly not self employed and since the amount of time required to write the checks was minimal the activity of writing the checks as such did not establish a lack of total unemployment.”

The appeal board reversed the decision of the administrative law judge and reinstated the initial determination. The board summarily concluded that claimant’s weekly certifications of unemployment “were false and known by her to be false when made” and therefore constituted wilful misrepresentations. The board also found that claimant’s statements were false in fact because “claimant performed substantial services for her employer of a similar nature to those she performed when concededly in employment”.

Claimant appealed to the Appellate Division to have the board’s determination set aside. In support of its determination the agency claimed that there was substantial evidence of wilfulness and that it was therefore authorized to impose the penalty and require repayment pursuant to section 594 of the Labor Law. In the alternative the agency urged that pursuant to subdivisions 3 and 4 of section 597 of the Labor Law, it could recover a portion of the benefits (i.e., those paid during the year preceding discovery of the overpayment) whenever the claimant has made a false statement of unemployment even unintentionally.

The Appellate Division unanimously modified by reversing that portion of the determination which imposed the penalty and ordered repayment of benefits. The court accepted the board’s determination that claimant’s check-writing activities constituted employment but found nothing in the record to support the board’s determination of wilfulness. With respect to the board’s right to recover a portion of the benefits pursuant to subdivisions 3 and 4 of section 597 of the Labor Law on the theory that she had made a false statement the court held that “the term ‘false statement’ in the statute refers to a false factual statement” and not to an erroneous conclusion of law. (83 AD2d, at p 346.) In this case the court found that “the requirement that claimant weekly ‘report and certify as to his unemployment’ (12 NYCRR 473.2 [a]) obligated claimant to draw a legal conclusion — whether her uncompensated check-writing activities constituted employment within the meaning of the Labor Law — rather than provide factual data”. (83 AD2d, at p 347.) The court distinguished our recent decision in Matter of Maguire (Ross) (54 NY2d 965) on the ground that the petitioner’s activities in that case obviously constituted employment.

LOLL CASE

In March, 1978 claimant, Debra Loll, was laid off from her job as a clerk cashier at Stop & Go in Elmira. She was rehired in September of that year. In the interim she collected unemployment benefits. At an unemployment interview on July 7,1978 she had stated that she occasionally helped out at her father’s drugstore, but received no compensation for these services. Toward the end of the month the agency sent her a letter warning her that any services performed for her father at his store would constitute employment even if she did not receive any compensation. On August 8, the manager of the unemployment office who was a regular customer at the drugstore saw the claimant behind the counter.

In October the agency made an initial determination that petitioner was ineligible to receive benefits for two days out of each week during the period of claimed unemployment, representing the days she helped her family at the drugstore. Her weekly certifications of unemployment were characterized as false and wilful misrepresentations. As a result claimant was penalized 96 effective days and was directed to repay $564 representing the benefits she received on the days she was employed at her father’s drugstore.

Claimant demanded a hearing which was held in February of 1979. At the hearing she testified that she went to her father’s store nearly every day during the period she claimed unemployment, so that she could borrow his car or have a family member babysit for her three-year-old son while she looked for a job. On occasion she would take care of a customer or deliver a prescription if her father or brother were busy or wanted to take a break. She usually only helped out for a few minutes one or two days a week during the evening or on a Saturday and on rare occasions worked for a few hours. These activities ceased after being warned of the consequences in July. However, she continued her daytime visits and during one of them might have assisted her family at the store for a few minutes because she had done so automatically throughout her life. She received no compensation for the help she provided at the store.

At the conclusion of the hearing the administrative law judge held that claimant’s activities at her father’s store constituted employment. He also stated that “the record is clear that the claimant was not candid with the local office and did not advise them of her activities”. Thus he sustained the initial determinations. The appeal board affirmed adopting both the findings of fact and opinion of the administrative law judge.

The case was heard by the Appellate Division in November, 1980, a year before its decision in the Volvo case. In a brief memorandum the court held that the record supported the board’s finding that claimant had made false statements but not its finding of wilfulness. The court modified by reversing so much of the agency’s determination as assessed a penalty of 96 effective days.

At the time of its decision in Valuó the Appellate Division .granted reargument in this case. In another brief memorandum, relying upon Valuó, the court further modified by reversing so much of the agency’s determination as directed claimant to repay benefits received. .

POLVINO CASE

From 1974 to 1977 claimant Josephine Polvino was intermittently employed by a small construction company owned and operated by her two sons, one of whom resides at home with his parents. The company does general construction work but specializes in paving driveways in the summer and removing snow in the winter. The company’s office is located in a trailer on property where the equipment is stored. However, company business is frequently conducted at claimant’s residence.

Claimant performed clerical duties at the office of a general and unskilled nature including answering phones, writing checks and keeping some company records. She was laid off and collected unemployment benefits on several occasions: March 4 to July 14, 1974; December 23, 1974 to June 13,1976, and August 8,1977 to May 14,1978. According to claimant and her sons this was due to a lack of work. However during these periods she continued on occasion to answer phone calls from customers, write checks and keep some company records at her residence without compensation.

In March of 1979 the agency sent claimant a notice of initial determination stating that she had been found to be ineligible for unemployment benefits during the periods of claimed unemployment listed above because she had continued to perform “services for Polvino Construction Corporation”. She was directed to make repayment in the amount of $8,834. The agency also imposed a penalty of 208 effective days for wilful misrepresentation “because you failed to divulge your association and activities for Polvino Construction Company”.

Claimant demanded a hearing at the conclusion of which the administrative law judge sustained the initial determination. He noted that claimant had been employed by her sons’ company where the services she performed were somewhat vague. He stated: “In a situation where a claimant is employed by a closely held corporation whose principal officers and shareholders are related to her, the closest scrutiny must be given to a claim for benefits. In the instant case the pattern of her claims over several years makes it appear obvious that the employer controlled her periods of employment. Because of the control exercised over the periods of her employment, the undersigned cannot accept claimant’s eligibility for benefits during these several periods when, by her own admission, claimant performed some services for the corporation.”

That decision was in turn affirmed by the appeal board which adopted the findings of fact and opinion of the administrative law judge.

The Appellate Division modified the agency’s determination by reversing the penalty and repayment provisions. In its memorandum the court held that there was substantial evidence to support the board’s determination that petitioner was unavailable for employment. The court also found no “reason for disturbing the board’s determination that claimant was not totally unemployed”. The court then stated: “We are of the opinion, however, that there is insufficient evidence to support the board’s determination on the issue of wilfull misrepresentation. Claimant’s activities did not obviously constitute employment as the situation was found to be in Matter of Maguire (Ross) (54 NY2d 965, supra). Although claimant may be found to have been employed in the technical sense of the Labor Law, there is no evidence of wilfulness in her certifications to total unemployment on her weekly reports. Consequently, the imposition of a forfeiture of effective days and the recovery of overpayments pursuant to section 594 of the Labor Law are not warranted in the present case (see Matter of Valvo [Ross], supra; Matter of Smalt [Ross], 82 AD2d 958). In addition, under the circumstances presented herein, there may be no recovery of a portion of the benefits pursuant to subdivision 4 of section 597 of the Labor Law (see Matter of Valvo [Ross], supra).” (85 AD2d, at p 807.)

The order of the Appellate Division should be affirmed in the first case (Valvo) and reversed in the other two (Loll and Pol vino).

Initially we note that at this stage no one challenges the agency’s determination that the petitioners’ activities technically constitute employment within the meaning of the statute. The appeals are limited to the following issues: (1) did the petitioners make false statements when they stated that they were unemployed and (2) did they act wilfully. In addition the agency concedes that in order to sustain a finding of wilfulness the evidence must show that the petitioners knew that their actions constituted employment.

The problem is that the agency’s interpretation of the statute defining employment (Labor Law, § 522) although rational, does not reflect the common understanding of employment. As a result laymen, particularly unskilled laymen who undoubtedly represent the majority of claimants for unemployment benefits, may not realize that occasionally helping a friend or relative may constitute employment even though they are not paid for it. The agency claims that its information booklet provides a kind of constructive notice when it states: “You are considered employed on any day when you work — even an hour or less — in self-employment, on a free lance basis, or for someone else. It makes no difference whether * * * you get paid for that day”. The agency, however, has omitted the next sentence which states: “For example, work on a straight commission basis is employment even though you may not receive the commission until some time later or make no sale at all”. This gloss leaves the impression that the term employment includes activities that are generally perceived as employment regardless of the technicalities.

The agency is on firmer ground when it relies on the facts of the particular cases. In the Polvino case, for instance, where the claimant worked for her sons, the evidence shows that she performed essentially the same limited services while allegedly unemployed as she did while allegedly employed. The only significant difference is that she received unemployment benefits instead of wages. In addition, as the agency notes, her periods of unemployment were never satisfactorily explained. It was appropriate for the agency to closely scrutinize this situation as it did, because of the possibility that the periods of employment and unemployment were manipulated in order to claim unemployment benefits. Under the circumstances the agency could conclude that if she understood that the services she performed for her sons constituted employment when she was on their payroll, she also realized that they constituted employment when she was technically laid off.

The Loll case presents a more sympathetic situation but nevertheless there is substantial evidence to sustain the agency’s finding that she acted wilfully. The evidence shows that she was warned that her services at her father’s drugstore constituted employment. When, despite this warning, she was later observed behind the counter, the agency could reasonably infer that her activities throughout the period were not the result of ignorance of the law. Notably in this case she was not required to repay all benefits received but only those relating to the days on which she was actually working at the store.

In the Valvo case, on the other hand, there is nothing in the record from which it can be reasonably inferred that she realized that her writing of a few monthly checks during a long period of seasonal unemployment would constitute employment disqualifying her from all benefits throughout the entire period. Although she worked for the father-in-law of a close friend, there is no suggestion that her employment was not legitimate and the obvious seasonal nature of the business and genuine lack of work during the period of claimed unemployment is undisputed. Thus the agency’s finding of wilfulness was arbitrary.

With respect to the agency’s alternative argument that claimant Valvo should be required to repay a portion of the benefits for making a false statement within the meaning of subdivision 4 of section 597 of the Labor Law, the Appellate Division correctly held that the statute only applies to false statements of fact and that petitioner’s certification of unemployment represented an error of law. This does not mean, as the agency suggests, that wilful misrepresentation is now required under this section and section 594 thus rendering one of the sections meaningless. It should be clear from the Appellate Division’s decision that section 597 permits recovery of benefits received within the past year when the claimant has made a false statement of fact even though unintended. However, when claimant has in good faith received benefits to which he or she was not entitled because of a mistake of law on the part of the claimant or the agency, none of the benefits may be recovered. This interpretation is required by the wording of the statute, and supported by its legislative history, which shows that it was designed to provide relief to claimants when an overpayment or erroneous payment of benefits resulted from an honest mistake, and to preclude all recovery when the claimant was not in any way responsible for the error (see, e.g., Industrial Comm Memorandum of April 9, 1942 on Assembly Int No. 1804, Print No. 2455).

Accordingly, the order of the Appellate Division should be affirmed in Matter of Valvo, and reversed in Matter of Loll and Matter of Pol vino. In the latter two cases the determination of the appeal board should be reinstated.

Chief Judge Cooke and Judges Jasen, Jones, Fuchs-berg and Meyer concur; Judge Gabrielli taking no part.

In Matter of Valvo: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs.

In Matter of Loll and Matter of Polvino: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), orders reversed, without costs, and decisions of the Unemployment Insurance Appeal Board reinstated.

      . Section 522 of the Labor Law states: “ ‘Total unemployment’ means the total lack of any employment on any day. The term ‘employment’ as used in this section means any employment including that not defined in this title.”

      . The relevant portion of section 594 of the Labor Law states: “A claimant who has wilfully made a false statement or representation to obtain any benefit * * * shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense for which he otherwise would have been entitled to receive benefits. Such penalty shall apply only once with respect to each such offense ® * * A claimant shall refund all moneys received because of such false statement or representation made by him.”

      . The relevant portions of section 597 of the Labor Law state:
      “3. Limitation on review of determinations. Any determination regarding a benefit claim may. in the absence of fraud or wilful misrepresentation, be reviewed only within one year from the date it is issued because of new or corrected information * *

        “4. Effect of review. Whenever a new determination in accordance with the preceding subdivision or a decision by a referee, the appeal board, or a court results in a decrease or denial of benefits previously allowed, such new determination or decision * * * shall not affect the rights to any benefits already paid * * * provided they were accepted by the claimant in good faith and the claimant did not make any false statement or representation and did not wilfully conceal any pertinent fact in connection with his claim for benefits.”


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Gerald White, Appellant.
    Submitted September 3, 1982
    decided October 5, 1982

      POINTS OF COUNSEL

      James J. Cruise, Jr., for appellant.
    I. The court erred in conveying the impression to the jury that defense counsel and the alibi witness had a duty to come forward to notify the police or District Attorney of the alibi and in accusing defense counsel of unethical conduct in failing to comply with the People’s late demand for a notice of alibi. (People v Hamlin, 58 AD2d 631; People v Smoot, 59 AD2d 898; People v Knox, 71 AD2d 41; People v Mason, 71 AD2d 961; People v Dawson, 50 NY2d 311.) II. Defendant-appellant was not proven guilty beyond a reasonable doubt. (Matter

      of Winship, 397 US 358; People v Elfe, 37 AD2d 208; Harris v United States, 404 US 1232; Thompson v Louisville, 362 US 199; Johnson v Florida, 391 US 596.)

      John J. Santucci, District Attorney (Thelma Lee and Richard G. Denzer of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. The Trial Judge’s interrogation of the witness Raab was not improper or prejudicial. (People v Dawson, 50 NY2d 311; People v Reed, 83 AD2d 645; People v Morales, 37 NY2d 262; People v Burgos, 50 NY2d 992; People v Figueroa, 80 AD2d 520; People v Richards, 78 AD2d 664; People v Turner, 83 AD2d 844.)
   OPINION OF THE COURT

Meyer, J.

A defendant’s attorney who learns of an alibi witness at arraignment does not act unethically in not then revealing the existence of that witness to the prosecution-. A trial in which the Trial Judge in his questioning of the attorney who represented defendant at arraignment, called as a witness to establish that the testimony of the alibi witness at trial is the same information he received at arraignment, implies that the withholding of the existence of the alibi witness was unethical and thus casts doubt upon the credibility of the defendant’s attorney is not a fair trial, nor under the circumstances of this case was the error harmless. The order of the Appellate Division should, therefore, be reversed and a new trial ordered.

On November 26,1974, at about 8 p.m., a grocery store in Jamaica was robbed. The person in charge of the store at the time was Derrick Brooks, then 15 years of age. Brooks testified that his cousin, Ricky Pridgen, was with him in the store at the time. About a week later, while taking a note to his mother at the Jamaica office of the Department of Social Services, Brooks saw defendant, whom he testified he recognized immediately from the coat he wore and his face and hat. The police were called and defendant was arrested. On December 2, 1974, defendant was arraigned at night court. During arraignment he was represented by Howard Raab, a Legal Aid attorney. Present also was defendant’s common-law wife, the mother of his two children. On January 3, 1975, more than the 20 days after arraignment allowed by CPL 250.20 for doing so, the People served a demand for a “notice of alibi.”

On May 27, 1975, after opening statements and just prior to the beginning of the People’s case, defendant’s then Legal Aid attorney, Charles Lavine, served a notice of alibi, arguing that he was not, however, required to do so because of the untimeliness of the People’s demand. Over objection from the People, the Trial Judge permitted the notice to be filed but stated that he would recess the trial to permit the People to investigate should they so request. The People’s case consisted of the testimony of Brooks, Pridgen, the detective who responded concerning the robbery on November 26 and the officer who arrested defendant on December 2. Cross-examination of Brooks revealed that he had signed a notarized statement that his identification of defendant was mistaken, of Pridgen that he could not recall the description of the robber (though he identified defendant in court), and of the detective that he understood Brooks to have been alone at the time of the robbery. On redirect, Brooks testified that he had signed the written statement under physical threat from defendant’s brother.

The defense presented defendant’s brother who testified that the statement though requested by him was voluntarily written by Brooks and then notarized, and defendant’s common-law wife who testified that she and defendant had left Jamaica at 4:30 p.m. on November 26 and returned to her mother’s apartment in The Bronx, where she testified defendant remained at least until she went to sleep at 10 p.m. As might be expected she was subjected to searching, cross-examination concerning her relationship with defendant, life-style and motive to protect defendant. To rehabilitate the alibi witness defendant then called as a witness Howard Raab, who testified from notes indorsed on the file at the arraignment that defendant’s wife had told him at that time that defendant was with her in The Bronx at the time of the robbery.

Although the prosecutor limited his cross-examination to the one question whether Raab himself made the particular notation (to which there was an affirmative response), the Trial Judge then inquired whether Raab had told the District Attorney he had an alibi witness “rather than put the prosecution and everybody through the burden of bringing this matter to court” and whether he did not “think it was your duty as a member of the Bar” to do so. To Raab’s response that he regarded the information as confidential, the Judge responded “You are an officer of the Court. You do owe a duty to the Court” and “You took no steps to apprise the District Attorney or anyone else. You let this matter proceed through the Grand Jury into the Trial Part.” He then advised the jury that though the “rules” require notice of an alibi witness, defendant had not served such notice until that morning, and that he was, therefore, recessing the trial to give the People an opportunity to investigate.

When the trial resumed two days later, the People recalled Raab who admitted that at times he checked out things told him as an attorney and sometimes found them false, but testified that he had not checked the alibi witness’ story because he knew he was not going to represent defendant beyond the arraignment. Summations followed immediately thereafter. Defendant’s trial attorney was permitted over objection to inform the jury that CPL 250.20 required a demand by the People within 20 days, that the demand was not received within 20 days and that he was, therefore, under no obligation to inform the District Attorney of anything. The prosecutor in summation responded that while the notice was four days late it was received by defendant’s attorney in January and not responded to until May.

The Trial Judge in his charge commented upon the attorneys’ summations regarding alibi notice and told the jury that “while Mr. Lavine [defendant’s trial attorney] raises the issue that under the law the notice served upon him was not served sufficiently, pay no attention to that” and that “it has nothing to do with the issues before you whether the statement was served or filed, has nothing to do absolutely, nor should you consider that in any way.” He then denied a request to charge CPL 250.20 and denied all requests to charge except as charged, including Lavine’s specific written request that the court charge that he had acted ethically concerning the notice requirement.

What the Trial Judge overlooked in denying the latter requests was the clear implication of his examination of Raab that Raab’s rehabilitating testimony was incredible, because an ethical attorney would immediately have revealed to the prosecutor the existence of an alibi witness. That there is no such rule of law is established by People v Dawson (50 NY2d 311) and People v Conyers (52 NY2d 454). Dawson recognized that exculpatory information may not be volunteered to the District Attorney because of a belief that “efforts to exonerate the suspect would be futile” or “because they were explicitly instructed to do so [not volunteer] by the defendant’s attorney” (50 NY2d, at p 322), commented upon “the low probative worth” of prior silence (id.), and required that the Trial Judge advise the jury that such testimony could be considered only on credibility (id., at p 323) and that a Bench conference be had “to ascertain whether the witness refrained from speaking under the advice of defense counsel” (id.). Conyers acknowledged that prior silence concerning exculpatory information “may be attributable to a variety of innocent circumstances that are completely unrelated to the truth or falsity of” testimony (52 NY2d, at p 458), that jurors, however, are not “necessarily sensitive to the wide variety of alternative explanations” (id., at p 459) and that the hazard is greatest for a defendant that an unjustified inference will be drawn and, therefore, the “utmost caution * * * [must be] exercised in order to ensure that the defendant is not deprived of a fair trial” (id., at p 459, n 2).

That the witness in question, Raab, was defendant’s attorney rather than the defendant himself is beside the point. CPL 250.20 requires that the People serve a demand for notice concerning alibi witnesses and Dawson requires a conference out of the presence of the jury to be held to ascertain whether a witness other than the defense attorney was instructed by the defense attorney not to come forward with exculpatory testimony. It follows that (1) it cannot be unethical for the defense attorney himself to withhold such information, and (2) in any event questioning or colloquy between the Trial Judge and the defense attorney concerning his failure to come forward should take place out of the presence of the jurors to avoid the possibility that they will be led to infer that the Trial Judge believes that the attorney’s testimony is incredible. In the instant case the colloquy following Raab’s testimony suggests that the Trial Judge was thinking more of the unnecessary burden on the courts and on the defendant who remained in jail pending trial than he was of the effect of what he was saying on the jury. His somewhat unusual step of allowing defendant’s attorney to argue the law concerning CPL 250.20 to the jury may, nevertheless, have straightened the matter out had he not then instructed them to ignore that part of the summation and denied defendant’s oral and written requests to charge with respect to that section. Though defendant is not entitled to a perfect trial, he is entitled to a fair trial, and a trial in which the Trial Judge interjects through questions and comments serious doubt concerning the veracity of a witness does not constitute a fair trial.

Nor can the error be deemed harmless. Brooks’ notarized statement and the detective’s notation that he was alone put both his and Pridgen’s testimony in serious doubt, and Pridgen’s inability to describe the robber raised substantive question concerning his identification. When to those flaws in the People’s case are added the alibi testimony of the wife and Raab’s testimony, establishing if accepted, that the alibi was not a recent fabrication, the evidence of guilt was far from overwhelming.

Accordingly, there should be a reversal and a new trial.

Chief Judge Cooke and Judges Jones, Wachtler and Fuchsberg concur with Judge Meyer; Judge Jasen concurs in result only; Judge Gabrielli taking no part.

Order reversed and a new trial ordered.


text:
    The People of the State of New York, Respondent, v Vicki Parker, Appellant.
    Argued August 31, 1982
    decided October 7, 1982

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (Howard A. Bloch of counsel), for appellant.
    I. There was no waiver of appellant’s right of presence; trial in absentia violated her constitutional rights of confrontation and due process, as well as her statutory rights pursuant to CPL 260.20, 340.50. (Illinois v Allen, 397 US 337; Lewis v United States, 146 US 370; Barber v Page, 390 US 719; Pointer v Texas, 380 US 400; Johnson v Zerbst, 304 US 458; Brady v United States, 397 US 742; People v Epps, 37 NY2d 343; Schneckloth v Bustamonte, 412 US 218; Miranda v Arizona, 384 US 436.) II. Assuming, arguendo, a waiver of appellant’s right of presence, it was an abuse of discretion to have tried her in absentia. (People v Foy, 32 NY2d 473; Goldsby v United States, 160 US 70; United States v Tortora, 464 F2d 1202; United States v Toliver, 541 F2d 958; People v Byrnes, 33 NY2d 343; People v Oskroba, 305 NY 113; People v Matz, 23 NY2d 196; People v Ballott, 20 NY2d 600.) III. The trial court erred in sentencing appellant in absentia. (United States v Behrens, 375 US 162; Illinois v Allen, 397 US 337; People ex rel. Lupo v Fay, 13 NY2d 253; Green v United States, 365 US 301; Snyder v Massachusetts, 291 US 97; People v Mullen, 44 NY2d 1; Townsend v Burke, 334 US 736; Mempa v Rhay, 389 US 128; People v Perry, 36 NY2d 114; People v Stroman, 36 NY2d 939.)

      Donald O. Chesworth, Jr., District Attorney (Sheldon W. Boyce, Jr., and Kenneth R. Fisher of counsel), for respondent.
    I. By her voluntary absence after personal notification of a day certain for her trial, defendant forfeited her right to be present. (Taylor v United States, 414 US 17; Diaz v United States, 223 US 442; United States v Tortora, 464 F2d 1202, cert den sub nom. Santora v United States, 409 US 1063; Government of Virgin Is. v Brown, 507 F2d 186; People v Aiken, 45 NY2d 394; People v Epps, 37 NY2d 343, 423 US 999; Matter of Whitley v Cioffi, 74 AD2d 230; Illinois v Allen, 397 US 337; People v Johnson, 37 NY2d 778.) II. By her continued absence, defendant also forfeited her right to be present at sentencing. (Matter of Root v Kapelman, 67 AD2d 131; People v Montez, 65 AD2d 777; People v Perry, 36 NY2d 114; People v McClain, 35 NY2d 483.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether a finding that a criminal defendant has received actual notice of the date for trial and has nonetheless voluntarily failed to appear is sufficient, as a matter of law, to permit the court to proceed to try the defendant in absentia. The courts below held this finding sufficient to establish an implicit relinquishment of a defendant’s right to be present at trial. We disagree and reverse.

In February, 1977 defendant was indicted for two counts of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39, subd 1). On Tuesday, July 5, 1977, the trial court notified defense counsel that defendant’s case was scheduled for trial on Friday, July 8, 1977. Defense counsel immediately contacted defendant by telephone to notify her of the trial date. She replied that she was seriously ill, that she might not be able to appear for trial, and that she was too ill to meet with counsel prior to the trial date.

Defendant did not appear for trial on July 8. After being informed of defendant’s illness by defense counsel, the court adjourned the matter until Monday, July 11. Defendant failed to appear on that day and defense counsel indicated that he had neither heard from nor been successful in locating defendant during the adjournment.

The trial court then conducted a hearing to determine defendant’s whereabouts. The prosecutor called Jeanette Harris, who had known defendant for 10 years and who posted bail for her. Mrs. Harris testified, on direct examination, that she spoke with defendant on June 25,1977, at which time defendant indicated an intention to leave town. Mrs. Harris also stated that defendant never mentioned that she was ill. On cross-examination, Mrs. Harris stated that about one month before the hearing defendant’s sister told defendant to leave town but that defendant responded by saying she would not flee. She testified that her son, James Harris, told her defendant was “out in the street”.

After Mrs. Harris testified, defense counsel told the court that defendant never told him she was planning to leave the jurisdiction. The court found that defendant’s absence was voluntary and that she had voluntarily waived her right to be present at trial. Pursuant to court order and over defense counsel’s objection, defendant was tried in absentia. No effort was made to secure the presence of the defendant through the use of a bench warrant.

At trial Officer Ruffin, of the Drug Enforcement Administration (DEA) Task Force of Monroe County, testified to purchasing cocaine and morphine from defendant. Two other DEA officers, who were observing Ruffin’s vehicle from a distance of 60 feet at the time of the sale identified defendant as the individual who entered the vehicle when the transaction occurred. At the close of the People’s case defense counsel called no witnesses but indicated that he would have called defendant had she not been tried in absentia, and that she would have rendered an exculpatory explanation of the transaction.

The jury returned a verdict finding defendant guilty on both counts of criminal sale of a controlled substance in the third degree. She was sentenced in absentia to an indeterminate term of two years to life in prison on each count, to run concurrently.

The Appellate Division affirmed the judgment of conviction, without opinion. We conclude that the trial court’s factual finding of voluntary absence from court on the day scheduled for her appearance is alone insufficient as a matter of law to establish an implicit waiver of defendant’s right to be present at trial so as to permit the court to try defendant in absentia.

A defendant’s right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions (NY Const, art I, § 6; US Const, 6th Amdt) and the Criminal Procedure Law (CPL 260.20, 340.50). Of course the right to be present may, as a general matter, be waived under both Constitutions (Diaz v United States, 223 US 442; People v Byrnes, 33 NY2d 343).

More specifically, we have recently held that a waiver of the right to be present at a criminal trial may be inferred from certain conduct engaged in by the defendant after the trial has commenced. Thus in People v Epps (37 NY2d 343, cert den 423 US 999), we held that defendant waived his right to be present when, after attending his trial for the first two days, he refused to leave his cell and attend further proceedings as part of his participation in an inmate boycott of the courts. We noted that prison personnel had repeatedly warned the defendant of the consequences of his refusal to leave his cell. Similarly, in People v Johnson (37 NY2d 778), we held that the defendant’s behavior in disrupting trial proceedings and his repeated requests to leave the courtroom, along with the court’s explanation of the consequence that the trial would proceed without him, were sufficient to waive the defendant’s right to be present at the trial (see, also, Taylor v United States, 414 US 17).

Although the right to be present at a criminal trial may be waived, the right is of a fundamental constitutional nature and therefore the validity of any waiver including one which could be implied, must be tested according to constitutional standards. Thus, in People v Epps (37 NY2d, supra, at p 350) we noted that the key issue was whether this defendant knowingly, voluntarily and intelligently relinquished his known right (Johnson v Zerbst, 304 US 458, 464).

The People argue that a forfeiture rather than a waiver analysis should be applied in the trial in absentia context when the trial is commenced in defendant’s absence. It is true that the forfeiture of a right may occur even though a defendant never made an informed, deliberate decision to relinquish that right. While waiver requires a knowing, voluntary and intelligent decision, which may be either express or implied, forfeiture occurs by operation of law without regard to defendant’s state of mind (see, generally, Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich L Rev 1214). The People argue that forfeiture of the right to be present at trial occurs as a matter of law whenever defendant knows of the court date and nonetheless voluntarily fails to appear.

We reject this contention and conclude that Epps and Johnson (supra), require the application of a constitutional waiver analysis to the facts now before us. In Epps and Johnson the defendants were present when trial commenced and were warned of the consequences of their conduct. In each of those cases the defendant’s conduct represented a clear expression of a desire not to be present at trial under any circumstances and therefore it would be inaccurate to say that the defendants in those cases renounced their right to be present. In those cases we required a voluntary, knowing and intelligent waiver of the right to be present at trial. In the case before us, considering the defendant’s knowledge at the time of her disappearance, there is no less reason for applying a waiver analysis. Certainly the mere fact of her disappearance presents a far more ambiguous situation than was present in Epps or Johnson for it does not appear that she was advised at any time by anyone that if she did not appear in court on the scheduled date the trial would proceed without her.

In order to effect a voluntary, knowing and intelligent waiver, the defendant must, at a minimum, be informed in some manner of the nature of the right to be present at trial and the consequences ,of failing to appear for trial (see Schneckloth v Bustamonte, 412 US 218, 243-244; Brady v United States, 397 US 742, 748). This, of course, in turn requires that defendant simply be aware that trial will proceed even though he or she fails to appear. As noted above, the defendants in Epps and Johnson were both expressly told that trial would proceed in their absence.

As we have previously noted, the record before us is devoid of any evidence indicating that defendant was ever apprised or otherwise aware that her trial would proceed in her absence. Defendant told her counsel that she might not be able to appear for trial due to illness and the trial court, after a hearing, determined that she had notice of a day certain for her scheduled appearance and deliberately failed to appear. However, the court made no finding regarding whether defendant was aware that the consequence of her absence would be that her trial would proceed without her being present.

Moreover, nothing in the record provides a basis for implying a waiver as a matter of law from the circumstances. In Taylor v United States (414 US, supra, at p 20) the defendant absented himself voluntarily after attending the opening of his trial. The Supreme Court implied a waiver from that conduct as a matter of law, stating: “It seems equally incredible to us, as it did to the Court of Appeals, ‘that a defendant who flees from a courtroom in the midst of a trial — where judge, jury, witnesses, and lawyers are present and ready to continue — would not know that as a consequence the trial could continue in his absence’ ” (citation omitted). A similar waiver was implied from mere voluntary failure to appear for trial in the multiple defendant case of United States v Tortora (464 F2d 1202, cert den sub nom. Santoro v United States, 409 US 1063). No similar circumstances are presented in the case at bar.

We consider it appropriate to emphasize that even after the court has determined that a defendant has waived the right to be present at trial by not appearing after being apprised of the right and the consequences of nonappearance, trial in absentia is not thereby automatically authorized. Rather, the trial court must exercise its sound discretion upon consideration of all appropriate factors, including the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling trial and the chance that evidence will be lost or witnesses will disappear (see United States v Peterson, 524 F2d 167). In most cases the simple expedient of adjournment pending execution of a bench warrant could provide an alternative to trial in absentia unless, of course, the prosecution can demonstrate that such a course of action would be totally futile.

Accordingly, the order of the Appellate Division should be reversed and the matter remitted for a new trial.

Chief Judge Cooke and Judges Jasen, Jones, Fuchs-berg and Meyer concur; Judge Gabrielli taking no part.

Order reversed and a new trial ordered.


text:
    Charles C. Welch, Respondent, v Mr. Christmas Incorporated, Appellant.
    Decided October 7, 1982

      APPEARANCES OF COUNSEL

      Dennis G. Jacobs for appellant.

      James P. Costello for respondent.
   OPINION OF THE COURT

Meyer, J.

Knowledge is not an element of the cause of action created by section 51 of the Civil Rights Law for compensatory damages and injunctive relief, nor will a written consent of the person whose name, picture or portrait is used which, by its terms, has expired at the time of the use complained of protect against the award of such relief under the statute. Neither malice nor recklessness need be shown for recovery in such an action of exemplary damages, it being sufficient for recovery of such damages to prove that “defendant shall have knowingly used” plaintiff’s name, portrait or picture. The question whether a sufficient showing of knowing use to permit recovery of exemplary damages in the instant case not having been preserved for our review, the order of the Appellate Division should be affirmed, with costs.

Plaintiff, a professional actor, and defendant, a manufacturer of artificial Christmas trees, entered into a one-year contract in November, 1973, whereby for a $1,000 fee plaintiff agreed to appear in a television commercial advertising defendant’s product. The contract also contained an option for the use of the commercial in 1974. Defendant distributed prints of the commercial to its local distributors who, in turn, arranged air time for broadcast of the commercial. In 1974, without prior notice or payment to plaintiff, defendant used the commercial. The parties subsequently entered into a financial settlement for the exercise of the 1974 option. In March, 1975, plaintiff, through the Screen Actors Guild, cautioned defendant that the term of permissible use of the commercial had expired and that negotiations were required for any further use of the commercial. Nevertheless, the commercial was aired during the 1975 Christmas season in Rochester, New York.

Plaintiff then commenced this action under section 51 of the Civil Rights Law. At trial, a Mr. Dauphin testified that he witnessed plaintiff’s commercial being telecast in Rochester, New York, in November, 1975, long after plaintiff’s consent to its use had expired. Dauphin also testified that the commercial contained a “tag line”, a message indicating the local distributor responsible for the commercial’s airing, but he could not recall the name of the distributor mentioned. There was, however, no testimony that defendant arranged or paid for the air time during which the commercial was exhibited or had actual knowledge that it was to be exhibited by that distributor at that time. Defendant, on the other hand, failed to demonstrate that it took any steps to recall the prints or limit the dissemination of the commercial after the contract period expired. To the contrary, its president testified that defendant had actively encouraged the maximum use of the commercial in order to sell Christmas trees and had placed no restrictions on the use of the commercial by its distributors, and was sure that he had not received back all of the prints sent out.

The jury returned a verdict for plaintiff in the amount of $1,000 compensatory damages and $25,000 exemplary damages. The Trial Judge held the latter award excessive and reduced it to $15,000, but denied defendant’s postverdict motion for judgment notwithstanding the verdict (CPLR 4404, subd [a]), and after reconsideration of the latter motion upon reargument, adhered to his original decision.

The Appellate Division, over a partial dissent, affirmed the judgment and order below. The majority held the evidence concerning defendant’s failure to prevent a distributor’s use of plaintiff’s commercial sufficient to justify compensatory damages under section 51 of the Civil Rights Law. It also held morally culpable conduct unnecessary for an award of punitive or exemplary damages under the statute and that the evidence supported the factual conclusion that defendant acted knowingly. The dissenter voted to modify in part by striking the punitive damage award because he viewed the dispute as a breach of contract action in which such damages were recoverable only for intentional wrongdoing.

Defendant appeals to our court as of right. It does not dispute that the November, 1975 use was for the purpose of trade but contends that (1) plaintiff having given a written consent can recover only for breach of contract, (2) it cannot be held for compensatory damages for a use by its distributor, (3) recovery of punitive damages can only be had upon a showing of malice or recklessness, and (4) the knowing use required for recovery of exemplary damages under the statute has not been shown. For the reasons hereafter stated, we affirm.

I

Section 51 of the Civil Rights Law authorizes injunctive relief to and the recovery of compensatory damages by an individual whose name, portrait or picture is used within the State for advertising or trade purposes without his or her prior written consent (Andretti v Rolex Watch, U.S.A., 56 NY2d 284, 286; Arrington v New York Times Co., 55 NY2d 433, 439; Brinkley v Casablancas, 80 AD2d 428, 440). Pointing to the fact that plaintiff’s prior written consent was in fact obtained, defendant argues that it can only be held liable in contract.

Here, however, the time limitation upon the use of the commercial had expired at the time of use. The right to withhold consent to a use includes the right to limit the period within which the consent remains in effect. Within the meaning and purpose of the statute, use after expiration of the effective period of consent is no less an invasion of privacy than is use without consent (Adrian v Unterman, 281 App Div 81, 89, affd 306 NY 771 [rights under the statute are not forfeited by a limited consent when the name is used after the consent expired]; see Booth v Curtis Pub. Co., 15 AD2d 343, 352, affd 11 NY2d 907 [voluntary surrender of privacy “does not forever forfeit for anyone’s commercial profit so much of (plaintiff’s) privacy as she has not relinquished”]; and Bunnell v Keystone Varnish Co., 254 App Div 885, affg 167 Misc 707 [Civil Rights Law, § 51, action maintainable where defendant used plaintiff’s name after defendant terminated, because of plaintiff’s illness, her agreement to assist in the sale of defendant’s products and to permit advertisement of plaintiff’s appearances]). Plaintiff’s statutory action is not foreclosed by the previously effective but now expired consent.

II

No more helpful to defendant, for several reasons, is its contention that it cannot be held under the statute because it did not use the commercial. Defendant does not suggest, nor could it in view of the nature of the commercial, that plaintiff’s picture was not used for the purpose of advertising its product. Rather it argues that it has not been shown either that it used or directed use of the commercial in 1975 or that it knew prior to that use that the commercial would be used by the distributor.

Knowledge is not an element of the cause of action for compensatory damages or injunctive relief under the statute. This necessarily follows from its express requirement as to exemplary damages that “defendant shall have knowingly used” another’s name, portrait or picture without consent, and the omission in the earlier portion of the same sentence dealing with compensatory damages of any modifier similarly limiting the use made "compensable (Lerman v Chuckleberry Pub., 496 F Supp 1105, 1109). Whether the claimed lack of knowledge concerns, as here, the use or, as in Lerman, the absence of consent is, as to compensatory damages, irrelevant in view of the wording of the statute. Nor need it be shown that defendant arranged for or directed use of the commercial by its Rochester distributor in 1975. The evidence that defendant actively encouraged maximum use of the commercial by its distributors who were expected to make their own arrangements for air time and neither placed any restriction upon the period within which it was to be used by the distributors nor made any effort at the expiration of the consent period or following the March, 1975 warning from the Screen Actors Guild to recall prints of the commercial from the distributors furnished a more than sufficient basis for holding defendant responsible for the unauthorized 1975 use (cf. Brinkley v Casablancas, 80 AD2d 428, 442, supra).

A further reason for rejection of defendant’s argument is that it neither took exception to, nor sought by request to limit the scope of, the Trial Judge’s instruction to the jury that it could be held for compensatory damages if it “or someone under its supervision or control used the commercial in which [plaintiff] appeared in the state of New York without his prior written consent.” Absent such an exception or request, that charge became the law of the case (Bichler v Lilly & Co., 55 NY2d 571, 584; Barry v Manglass, 55 NY2d 803, 805), and, in light of the evidence above detailed, the jury could quite properly have found that the Rochester distributor, in this respect at least, was someone under defendant’s supervision and control.

Ill

Although recovery of exemplary or punitive damages in a common-law action requires a showing of conscious disregard of the rights of others or conduct so reckless as to amount to such disregard (Hartford Acc. & Ind. Co. v Village of Hempstead, 48 NY2d 218), it is, as we indicated in Garrity v Lyle Stuart, Inc. (40 NY2d 354, 358; see, also, Hartford Acc. & Ind. Co. v Village of Hempstead, supra), within the province of the Legislature in authorizing the award of such damages to establish other and different criteria (e.g., Judiciary Law, § 487; Lien Law, § 39-a; RPAPL 853, 861; Workers’ Compensation Law, § 14-a). In section 51 of the Civil Rights Law the Legislature has done just that, providing that “the jury, in its discretion, may award exemplary damages” if it be shown that “the defendant shall have knowingly used such person’s name, portrait or picture”. For recovery of exemplary damages under the statute, therefore, no more need be shown than knowing use (cf. Brinkley v Casablancas, 80 AD2d 428, 443, supra; Lerman v Chuckleberry Pub., 496 F Supp 1105, 1110, supra).

IV

The Appellate Division held that, defendant having been warned that the permissible period of use for the commercial had expired, the evidence was sufficient to support the conclusion that defendant acted knowingly within the meaning of the statute’s exemplary damage provision. We do not find it necessary to reach that question. The jury was charged that it could award exemplary damages if it found that defendant “used plaintiff’s picture, knowing that plaintiff had not consented to the use, or in reckless disregard of whether plaintiff had consented to the use.” No exception was taken to that charge. It was, therefore, the law of the case that plaintiff’s right to exemplary damages turned on whether defendant knew plaintiff had not consented rather than whether defendant itself knowingly caused the commercial to be aired (Bichler v Lilly & Co., 55 NY2d 571, 584, supra; Barry v Manglass, 55 NY2d 803, 805, supra). Because, as the Appellate Division noted, there was evidence to support a finding that defendant, having been warned, knew that plaintiff had not consented to use of the commercial in 1975, the jury’s award of exemplary damages must be upheld under the law of the case.

For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs.

      . Causes of action alleging fraud and breach of contract were discontinued at trial.

      . The appeal has been decided on submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]). A brief amicus submitted jointly by CBS Inc., Metromedia, Inc., and National Broadcasting Company, Inc., raises issues of broadcaster liability under the statute which because they concern facts not presented by the instant case are not reached.

      . The section reads, in pertinent part: “Any person whose name, portrait or picture is used within this state for advertising purposes or for the purpose of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by the last section, the jury, in its discretion, may award exemplary damages.”

      . Exhibit 3 received in evidence establishes that in the commercial plaintiff illustrated how easily defendant’s tree could be removed from the box and set up, ready for decoration.

      . As originally given the charge referred to compensatory damages, but the slip of the tongue was immediately corrected.

      . Nor was the issue otherwise properly preserved for our review. Defendant’s motion at the end of plaintiff’s case that the jury not be charged on exemplary damages was made without a statement of the grounds for the motion and upon renewal at the end of the whole case the only ground stated was that plaintiff had not shown that defendant “used the commercial knowing that it had no consent.” Not until its postverdict motion did defendant articulate the ground now urged. Because objection at that point comes too late for correction during trial, the ruling of a Trial Judge on such a motion is a matter of discretion and, therefore, does not preserve the issue for our review (Bichler v Lilly & Co., 55 NY2d 571) absent a clear abuse of discretion as a matter of law.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Patricia Fuller, Appellant.
    Argued September 8, 1982
    decided October 19, 1982

      POINTS OF COUNSEL

      Shirley Werner Kornreich and William E. Hellerstein for appellant.
    I. Appellant’s sentence of restitution, which does not set the amount and manner of payment and improperly delegates authority to do so, is violative of section 65.10 of the Penal Law. (People v Lofton, 78 Misc 2d 202; People v Greene, 36 AD2d 826; People v Marx, 19 AD2d 577; People v Julye, 64 AD2d 614; Matter of Feldman v Reeves, 45 AD2d 90; People v Turner, 27 AD2d 141; People v Oskroba, 305 NY 113; People ex rel. Benacquista v Blanchard, 267 App Div 663; People ex rel. Perry v Cassidy, 43 Misc 2d 189, 23 AD2d 706; People v Thigpen, 60 AD2d 860.) II. The lengthy, unexcused delay in prosecution — a 21-month hiatus between discovery of the crime and arrest — violated State due process and section 145 of the Social Services Law. (People v Singer, 44 NY2d 241; People v Staley, 41 NY2d 789; People v Bryant, 12 NY2d 719; People v Taranovich, 37 NY2d 442; People v Johnson, 38 NY2d 271; People v McLaurin, 38 NY2d 123; People v Spruill, 47 NY2d 869; People v Masselli, 13 NY2d 1; People v Scott, 56 AD2d 667; People v Sylvester, 29 AD2d 985.)

      Robert M. Morgenthau, District Attorney (.Debora K. Grobman and Mark Dwyer of counsel), for respondent.
    I. The sentencing court’s pronouncement of the terms of the sentence need not be reviewed by this court as the rights of the parties will be unaffected by the relief sought. In any event, Justice Lang substantially complied with the statutory requirement that appellant be notified of the amount and manner of restitution. (People ex rel. Benacquista v Blanchard, 267 App Div 663; People ex rel. Perry v Cassidy, 43 Misc 2d 189, 23 AD2d 706.) II. The prearrest period was not unduly long and fully comported with due process requirements. (People v Taranovich, 37 NY2d 442; United States v Lovasco, 431 US 783; United States v Marion, 404 US 307; People v Bryant, 65 AD2d 333; People v Singer, 44 NY2d 241; People v Pollaci, 68 AD2d 71; People v Masselli, 13 NY2d 1; People v Scott, 56 AD2d 667; People v Sylvester, 29 AD2d 985; People v Lugo, 67 AD2d 1010.)
   OPINION OF THE COURT

Fuchsberg, J.

This appeal, here by leave of a Judge of this court, presents us with our first opportunity to construe Penal Law sections authorizing the imposition of “restitution” or “reparation” as part of a sentence (Penal Law, §§ 60.27, 65.10, subd 2, par [g]). As recently amended, these statutes, among other things, reflect both a more flexible penological approach and a heightened awareness of the “concerns and needs of the victims of crime” (Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 60.27). In particular, we are asked to decide whether, under the statutory scheme, a sentencing court, broad as its discretion to mold an appropriate disposition otherwise may be, is free to delegate the power to fix the conditions of such restitution or reparation to the Probation Department. We now hold that it is not.

A second question raised is whether, under the facts and circumstances in this case, a 21-month lapse of time between the discovery of the defendant’s criminal conduct and the time of her arrest violated her due process right to prompt prosecution. We find this issue to be without merit.

Upon her plea of guilty, the defendant, Patricia Fuller, stands convicted of grand larceny in the second degree (Penal Law, § 155.35). This stemmed from her unlawful receipt, from September, 1973 to December, 1975, of $5,994 in public assistance moneys, in violation of section 145 of the Social Services Law by concealing the fact that she then was gainfully employed. Her conduct first came to the attention of public authorities when it was discovered by the Social Services Department in December, 1975, but the department did not so inform the District Attorney until December, 1976 and she was not arrested until September 20, 1977.

It was on this delay that the defendant predicated her due process claim, urging it initially on an unsuccessful pretrial motion. Her guilty plea followed. At the sentencing,' the trial court imposed a five-year term of probation and. directed the defendant to make restitution “in the amount of her defalcation in a manner consistent with that to be set by the probation department”. In implementing this delegation, the department thereupon required the defendant to sign a confession of judgment in which she acknowledged a debt of $7,611.82 to the Social Services Department of the City of New York. That sum, substantially in excess of the $5,994 covered by the indictment, was arrived at by including additional benefits received during the 15 months following the completion of the crime charged.

On these facts, turning first to her restitution point, we note, preliminarily, that defendant registered no objection, either at sentence, by way of postjudgment motion or even on her appeal to the Appellate Division, to the fact that the Probation Department rather than the sentencing court passed on the amount and manner in which the restitution requirement was to be satisfied. Failure to challenge a procedure at a time when a trial court still has an opportunity to take effective correction action as a general rule will forfeit the right of review by this court (CPL 470.05, subd 2; People v Drummond, 40 NY2d 990, cert den sub nom. New York v Luis J., 431 US 908). But it has long been the law that the “essential nature” of the right to be sentenced as provided by law, though not formally raised at the trial level, preserves a departure therefrom for review in this court (People v Craig, 295 NY 116, 120; People v Bradner, 107 NY 1, 4-5; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 199, pp 750-751).

Proceeding then to substantive consideration of the legality of the delegation of the restitution element of the defendant’s sentence, we observe that the power of a court to order offenders to compensate the victims of their crimes is not new to the criminal justice system. Provision for a court to direct restitution may be found in our early probation statutes at least as far back as 1910 (Code Crim Pro, § 483, subd 2; § 932) and its use has long been advocated by a variety of standard-setting bodies (National Advisory Commission on Criminal Justice Standards and Goals, Standards on Probation and Parole, § 5.4, subd 2; § 5.5, subd 3; Model Sentencing Act, § 9; National Commission on Reform of Federal Criminal Laws, Study Draft [1970], § 3302; American Bar Association, Projects on Minimum Standards for Criminal Justice, Standards Relating to Probation, § 3.2, subds [a], [c], par [viii]; ALI Model Penal Code, § 301.1, subd [2], par [h]; cf. Bradford v United States, 228 US 446). Therefore, though the unfortunate current prevalence of crime has drawn renewed and intensified attention to sentencing in general and compensation for crime victims in particular, the latter has long been an integral part of the former.

Consistent with these developments, New York’s implementing statutes vest a great deal of discretion in the sentencing authority. They also make clear that a decision to direct a defendant to make “restitution of the fruits of his offense or reparation for the loss or damage caused [by his criminal conduct]” rests with it alone (Penal Law, § 60.27, subd 2; § 65.10, subd 2, par [g]).

Perhaps above all, it is manifest that the Legislature’s intention was to keep the responsibility for dealing with this increasingly emphasized feature of sentencing in the hands of our Judges and no one else. Nowhere does it as much as mention any other agency in this regard. Rather, section 60.27’s subdivision 1 specifically speaks of “discretion” of “the court” alone, while its subdivision 2 emphatically advises that it is “the court” which must make a “finding” as to the “fruits” or “damage” resulting from the offense and that it is likewise “the court” which is to conduct any hearing thought necessary for this purpose. Moreover, the section’s subdivision 5 in particular refers to the “amount of restitution or reparation” required “by the court”. Similarly, section 65.10 is precise in providing that it is “the court” which “shall fix the amount [of restitution or reparation and] the manner of performance”.

Consonantly, the Appellate Division, Second Department, the only New York court to have ruled on the issue, has held that the court’s responsibility for performing these functions may not be delegated to the Probation Department (People v Julye, 64 AD2d 614; People v Thigpen, 60 AD2d 860). In Thigpen, the court recognized that the amount and manner of restitution was not a perfunctory matter, but one which required nisi prius to make “findings of the sum actually due, with appropriate allowances made for offsets or other factors which could properly reduce the total amount”. Hardly less can be necessary under a statutory scheme which not only calls for a determination of the “fruits of [the] offense” or “reparation, in an amount [the defendant] can afford to pay” (Penal Law, § 65.10, subd 2, par [g]).

This is not to say that the Probation Department may play no part in ascertaining the appropriate amount to be set. On the contrary, a court may call on it to act as a preliminary fact finder and submit its recommendations in a written report. Nevertheless, in the end it is for the court, which alone must impose the sentence, to decide how much of the report, if any, to adopt and how much to reject. Since, in the present case, the court deviated from this course, the sentence cannot stand.

We now come to the defendant’s second contention, that she was denied her due process right to prompt prosecution by the passage of the 21-month interval between the time that her crime had been completed and the time of her arrest.

It is beyond dispute that, although a District Attorney, in representing the State, is vested with broad discretion to “initiate, prosecute and discontinue” criminal prosecutions (People v Zimmer, 51 NY2d 390, 394, and authorities cited thereat), unexplained and unreasonable delay in commencing a prosecution may constitute a denial of due process entitling a defendant to dismissal (People v Singer, 44 NY2d 241, 253-254). True, a suspect’s primary protection against protracted delay in being brought to bar ordinarily is the Statute of Limitations, but delay in arresting or lodging charges over a lesser period of time may, in special circumstances, impair the right to a fair trial (People v Singer, supra, at p 252, citing to United States v Lovasco, 431 US 783, and United States v Marion, 404 US 307).

However, no special circumstances have been shown here. A 21-month delay is well within the period prescribed by the Legislature for the commencement of a class D felony prosecution (CPL 30.10, subd 2, par [b]). Furthermore, 12 of these months were not attributable to the District Attorney, the case having first been reported to him by the Department of Social Services in late December, 1976, but nine months before the arrest took place. In the interim, social services personnel apparently were attempting to deal with the matter on a welfare level. Surely, notice to such an agency, whose societal concerns are so different from those of the police department and the District Attorney, need not be regarded as notice to the criminal justice system (cf. People v Masselli, 13 NY2d 1 [Correction Department]). Finally, there was no convincing support for defendant’s routine-like claim of prejudice.

For all these reasons, the order of the Appellate Division should be reversed and the case remitted to Supreme Court, New York County, for resentence in accordance with this opinion.

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

Order reversed, etc.

      . The defendant was sentenced under section 65.10 (subd 2, par [f]) of the Penal Law, effective July 23, 1980, this subdivision was relettered as paragraph (g) of subdivision 2 and was amended to require the sentencing court to “specifically state the date when restitution is to be paid in full prior to the expiration of the sentence of probation” (L 1980, ch 471, § 22).

      . We are informed that defendant’s period of probation is now at an end. It might, therefore, be suggested that the issue of the legality of defendant’s sentence is moot. The record before us does not permit us to resolve that question conclusively. But, even if, as a practical matter, the issues tendered indeed could be said to be moot, we nevertheless have retained the appeal. Whether the sentencing court is authorized to delegate the determination of the particulars of a restitutional sentence is not only of ongoing and accelerating importance to the criminal justice system, but is almost certain to affect a very large number of cases on a continuing basis (Matter of Oliver v Postel, 30 NY2d 171, 177-178; cf. Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-718).

      . To be distinguished is People v McGowen (42 NY2d 905). There the alleged sentencing error was held not to be reviewable following the defendant’s guilty plea and failure to object. Claimed was a failure by the court to exercise discretion provided in the statute with respect to potential youthful offenders (CPL 720.20, subd 1, par [a]). In the case before us now, on the other hand, the court exercised its discretion by ordering restitution as a part of the sentence, but exceeded the statutory limit on that discretion when it delegated the power to fix the terms and conditions to the Probation Department.

      . California’s Constitution recently was amended to assure that persons who “suffer losses as a result of criminal activity shall have the right to restitution * * * Restitution shall be ordered * * * in every case, * * * unless compelling and extraordinary reasons exist to the contrary (Cal Const, art I, § 28, subd b; see Broshahan v Brown, 32 Cal 3d 236).

      . The Legislature has evidenced its concern in other ways as well. For example, it has established a Crime Victims Compensation Board to aid victims of crime (see Executive Law, §§ 620-635; Comment, Compensation for Victims of Crimes of Violence, 31 Alb L Rev 120).

      . Courts in other jurisdictions, in construing statutes similar to section 65.10 of the Penal Law, have expressly found that courts have no authority to delegate the responsibility for imposing conditions of probation or the terms of those conditions (see, e.g., State ex rel. D.G.W., 70 NJ 488; People v Gallagher, 55 Mich App 613; Cox v State, 445 SW2d 200 [Tex]). Among the concerns expressed in these decisions are the interest of the public in having the court supervise the defendant’s rehabilitation, of which the payment of restitution is a part, and the defendant’s right of due process in the determination of the amount of restitution to insure that it did not represent unliquidated damages (see State ex rel. D.G.W., supra, at p 503).

      . [4] Since the due process claim arising from her protracted prosecution is predicated upon an asserted deprivation of a constitutional right to no longer be subjected to trial for a particular offense, if established, it would survive what ordinarily would be the waiver effected by her plea (cf. People v Michael, 48 NY2d 1 [right not to be subjected to double jeopardy]). We thus reach this issue.

      . Because there is no time limitation placed upon the commencement of a prosecution for murder or any class A felony (CPL 30.10, subd 2, par [a]), in Singer, where there was a four-year delay, we found the Statute of Limitations an inadequate protection (see People v Singer, supra, at p 253).