author: Jones, J. Wachtler, J. Fuchsberg, J. Cooke, J.

text:
    The People of the State of New York, Respondent, v Theodore Payton, Appellant. The People of the State of New York, Respondent, v Obie Riddick, Appellant.
    Argued April 28, 1978;
    decided July 11, 1978

      POINTS OF COUNSEL

      Elliot Schnapp, William E. Hellerstein and William J. Gallagher for appellant in the first above-entitled action.
    I. The shell casing found in appellant’s apartment must be suppressed where the police had no warrant authorizing their break in of appellant’s home, where there were no exigent circumstances excusing the failure to obtain a warrant, and where the break in, although assertedly for the purpose of effecting an arrest, was in fact undertaken to facilitate a blatantly unlawful, warrantless search for evidence. (Coolidge v New Hampshire, 403 US 443; United States v United States Dist. CL, 407 US 297; Johnson v United States, 333 US 10; United States v Watson, 423 US 411; Warden v Hayden, 387 US 294; People v Vaccaro, 39 NY2d 468; United States v Watson, 307 F Supp 173.) II. The evidence purporting to connect appellant to the purchase of a weapon, which the police admittedly had discovered because of information gleaned from an illegally seized document, should have been suppressed. (People v Fitzpatrick, 32 NY2d 499, 414 US 1050; Government of Virgin Islands v Gereau, 502 F2d 914; United States v Wade, 388 US 218; People v Ballott, 20 NY2d 600; People v Pobliner, 32 NY2d 356; United States v Tortorello, 342 F Supp 1029, 480 F2d 764; Nardone v United States, 308 US 338; Lawn v United States, 355 US 339; People v Roberts, 47 AD2d 664.) III. Appellant was deprived of his State and Federal constitutional rights by the trial court’s summary denial of his request to represent himself. (Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; Harrison v United States, 392 US 219; People v Reason, 37 NY2d 351.)

      Robert M. Morgenthau, District Attorney (Henry J. Stein-glass and Robert M. Pitler of counsel), for respondent in the first above-entitled action.
    I. Defendant was proved guilty beyond a reasonable doubt. II. The hearing court correctly denied defendant’s suppression motion because the .30 caliber shell casing was found in plain view by a police officer who entered Payton’s apartment in order to arrest him. (People v Pagnotta, 25 NY2d 333; Matter of Van Berkel v Power, 16 NY2d 37; People v Tutt, 38 NY2d 1011; United States v Watson, 423 US 411; United States v Chadwick, 433 US 1; Accarino v United States, 179 F2d 456; Holley v Mix, 3 Wend 351; Burns v Erben, 40 NY 463; People v Fitzpatrick, 32 NY2d 499, 414 US 1050; People v Valentine, 17 NY2d 128; Johnson v United States, 333 US 10; Ker v California, 374 US 23.) III. The exclusionary rule did not require suppression of Rose-man’s testimony and the "Firearm Transaction Record” which he willingly produced from his files. (People v Martinez, 37 NY2d 662; Terry v Ohio, 392 US l; Mapp v Ohio, 367 US 643; Alderman v United States, 394 US 165; Wong Sun v United States, 371 US 471; People v Fitzpatrick, 32 NY2d 499, 414 US 1050; People v Mendez, 28 NY2d 94, 404 US 911; Stone v Powell, 428 US 465; Michigan v Tucker, 417 US 433; United States v Calandra, 414 US 338.)

      David A. Lewis and William E. Hellerstein for appellant in the second above-entitled action.
    Appellant’s arrest in his own home was unlawful because the arresting officers entered his home without a warrant and because the officers failed to announce their authority and purpose before entering. (G. M. Leasing Corp. v United States, 429 US 338; Camara v Municipal Ct., 387 US 523; People v Spinelli, 35 NY2d 77; United States v United States Dist. Ct., 407 US 297; Silverman v United States, 365 US 505; Chimel v California, 395 US 752; United States v Watson, 423 US 411; Johnson v United States, 333 US 10; McDonald v United States, 335 US 451.)

      John J. Santucci, District Attorney (George Freed of counsel), for respondent in the second above-entitled action.
    I. The warrantless arrest of appellant in his home predicated upon probable cause was in conformity with New York statutes and case law and was therefore proper. (Dorman v United States, 435 F2d 385; People v Lombardi, 18 AD2d 177; United States v Di Re, 332 US 581; United States v Watson, 423 US 411; People v Feldt, 26 AD2d 743; United States ex rel. Foreman v Casseles, 311 F Supp 526; Lindsley v Natural Carbonic Gas Co., 220 US 61; Nettleton Co. v Diamond, 27 NY2d 182; People v Pagnotta, 25 NY2d 333; Matter of Fay, 291 NY 198.) II. There being no forcible entry the officers’ conduct at appellant’s door was not in violation of CPL 120.80 (subd 4) or 140.15 (subd 4). (People v Frank, 35 NY2d 874; People v Floyd, 26 NY2d 558.)
   OPINION OF THE COURT

Jones, J.

We hold that an entry made for the purpose of effecting a felony arrest within the home of the person to be arrested by a police officer who has entered without permission of the owner, if based on probable cause, is not necessarily violative of the constitutional right to be secure against unreasonable searches and seizures even though the arresting officer has not obtained a warrant and there are no exigent circumstances.

Defendant Theodore Payton has been convicted on a jury’s verdict of the felony murder of a service station manager in connection with an armed robbery committed on the morning of January 12, 1970 by a man carrying a rifle and wearing a ski mask, who fled the scene with the weapon and cash following the homicide. Two days later, on January 14, two eyewitnesses to the crime — both of whom had known defendant — identified him to the police as the killer. One of the witnesses also furnished defendant’s address. On the morning of January 15 about 7:30 a.m., without having first secured a warrant, the detective in charge of the investigation went with three other detectives and a police sergeant to defendant’s apartment. Although they observed a light shining beneath the door and heard a radio playing, there was no answer when they knocked. To open the locked metal door they summoned officers from the Emergency Service Department, who arrived about a half hour later and with the aid of crowbars forced open the door. The police entered the apartment, checked the rooms for defendant who was not found, observed a .30 caliber shell casing in plain view on top of a stereo set and then conducted a full-scale search of the apartment, which revealed a shotgun with ammunition in a closet and a sales receipt for a Winchester rifle and photographs of defendant with a ski mask in a dresser drawer. The following day defendant surrendered himself to the police and was subsequently indicted on charges arising out of the service station homicide.

Following a pretrial suppression hearing, the court, on concession by the District Attorney, suppressed all of the items found in the apartment with the exception of the shell casing. The suppression court held that the casing had been inadvertently observed while the police were lawfully in the premises to make a warrantless arrest for a felony which they had reasonable grounds to believe defendant had committed.

During the trial the People produced testimony that two .30-30 Winchester discharged shell casings had been found at the scene of the crime and that those shells and the .30 caliber shell casing found in defendant’s apartment had been fired from the same rifle. They also called as a witness the owner of a sporting goods store in Peekskill, New York, the store which had issued the rifle sales receipt seized at the time of defendant’s arrest but suppressed prior to trial. He testified that on November 19, 1969 he had sold a .30-30 Winchester rifle and shells to a man who identified himself as Theodore Payton. There was also introduced in evidence the Federally required Firearm Transaction Record retained by the seller which bore defendant’s signature. The defense objected to both the testimony and the exhibit as inadmissible "tainted fruit” of the unlawful seizure of the suppressed sales receipt. The objections were overruled and, after a posttrial hearing on defendant’s motion to set aside the verdict on the ground that the evidence at trial was the product of material which had been ordered suppressed, the motion was denied. The Appellate Division affirmed defendant’s conviction of felony murder.

Defendant Obie Riddick has been convicted of criminal possession of a controlled substance in the sixth degree on his plea of guilty following denial of his motion to suppress a quantity of narcotics and a hypodermic syringe taken from a dresser drawer in his home when he was arrested there on March 14, 1974 for the commission of two armed robberies which had occurred in 1971. In June, 1973 the victims had identified defendant from a photograph as the perpetrator of the robberies. Following that identification, the detective investigating the robberies contacted defendant’s parole officer and in January, 1974 learned his address. Without having procured an arrest warrant, about noon on March 14, 1974 the detective, two other detectives and the parole officer went to the house where defendant was living. After the parole officer had entered the house, determined that defendant was present and so signaled the waiting policemen, the detective investigating the robberies knocked on the door, which was opened by defendant’s three-year-old son. Through the open door the detective observed defendant in the bedroom sitting in bed covered to the waist by a sheet. Entering the apartment with one of the other officers, the detective announced his authority and asked defendant if he was Obie Riddick. Defendant acknowledged his identity and was told that he was under arrest, advised of his rights and instructed to get out of bed. When it then became apparent that defendant was dressed only in his underwear and that he would have to dress, the detective searched the bed, a chest of drawers two feet from the bed and the defendant’s clothing. In doing so he found a quantity of narcotics and a hypodermic syringe in the top drawer of the chest. After indictment for the crimes of criminal possession of a controlled substance in the fifth degree and criminal possession of a hypodermic instrument defendant moved to suppress the drugs and syringe, contending that the arrest had been unlawful because it had been made without a warrant and without announcement by the police of their purpose before entering defendant’s home. The motion was denied after a hearing, the suppression court finding that the arrest was lawful because it was based on probable cause and that the search conducted incidental to the arrest was reasonable and did not exceed the limits set out in Chimel v California (395 US 752). Defendant’s contentions were not explicitly addressed. A plea of guilty to a reduced charge in satisfaction of the indictment followed the denial of suppression. The conviction was affirmed at the Appellate Division.

In each of these cases we are confronted with the claim that evidence, the introduction or availability of which may be regarded as critical to defendants’ convictions, should have been suppressed because it had been unlawfully procured, that is, seized after an entry into defendant’s home to make an arrest without either the authority of a previously issued warrant or the existence of exigent circumstances, in violation of constitutional protections. In Payton the challenge is to the .30 caliber shell casing found on defendant’s stereo set which —matching those found at the service station — may well have contributed to identify defendant as the killer in the jury’s eyes; in Riddick it is to the narcotics and hypodermic syringes, denial of suppression of which prompted defendant’s plea of guilty. In Riddick reliance is also placed on the absence of compliance with a statutory requirement of prior announcement of the police officers’ authority and purpose.

The parties to these appeals have extensively briefed the question whether, without infringement of constitutional rights, an arrest may be made within the residence of a defendant based on unquestionable probable cause — as each of these arrests was — without a warrant in the absence of exigent circumstances. Not insubstantial arguments are mounted in support both of an affirmative and a negative response to the question, and multiple supporting authorities are offered on each side. It is contended by defendants that physical invasion of the home is the "chief evil against which the wording of the Fourth Amendment is directed” (United States v United States Dist. Ct., 407 US 297, 313); that it has been conclusively determined that, absent exigent circumstances (of which there were none here), an otherwise proper warrantless entry of the home to search for property is impermissible (Coolidge v New Hampshire, 403 US 443); that the sanctity of the home is equally invaded when entry is made for the purpose of arrest; that the more serious consequences of the latter class of entry provide a more compelling reason to require the authority of a warrant in such a situation (United States v Reed, 572 F2d 412; Accarino v United States, 179 F2d 456) — in sum, that if a warrant or exigent circumstances is required for a search and seizure, any proper sense of constitutional symmetry would mandate that the same predicate be required for an arrest.

The People, for their part, assert the existence of an established difference between entry in a home to effect an arrest and one to search and seize property (as to which they agree that a warrant is required in the absence of exigent circumstances), and urge that a proper regard for public safety permits — even demands — recognition of a right in a peace officer to enter a home for the purpose of arresting one who the officer has reasonable grounds to believe has committed a felony, without the necessity for obtaining a warrant, even though there be no exigent circumstances. They contend that the right to make such an arrest, as an alternative to arrest 'tyith a warrant, has been recognized both at common law before the adoption of the constitutional provisions and since their adoption, and that such procedure is presently authorized by explicit legislation in at least 30 States, including New York, as well as by the Model Code of Pre-Arraignment Procedure promulgated by the American Law Institute (§ 120.6, subd [1]).

The parties also draw the conflicting inferences (which others have similarly drawn) from holdings and writings of the Supreme Court of the United States and its individual Justices. Defendants infer from United States v Watson (423 US 411) that an arrest following a warrantless entry in the home is invalid; the People conclude from Ker v California (374 US 23) that the contrary is the case. The fact is that the Supreme Court has not yet resolved the issue, as appears from the explicit statement in the plurality opinion in Watson that the question " 'whether and under what circumstances an officer may enter a suspect’s home to make a warrantless arrest’ ” is "still unsettled” (423 US, at p 418, n 6). Nor has the issue been resolved in our court. In determining now that the warrantless arrests effected in these cases did not violate defendants’ constitutional rights to be free from unreasonable searches and seizures, we rely both on what we perceive to be a substantial difference between the intrusion which attends an entry for the purpose of searching the premises and that which results from an entry for the purpose of making an arrest, and on the significant difference in the governmental interest in achieving the objective of the intrusion in the two instances.

In the case of the search, unless appropriately limited by the terms of a warrant, the incursion on the householder’s domain normally will be both more extensive and more intensive and the resulting invasion of his privacy of greater magnitude than what might be expected to occur on an entry made for the purpose of effecting his arrest. A search by its nature contemplates a possibly thorough rummaging through possessions, with concurrent upheaval of the owner’s chosen or random placement of goods and articles and disclosure to the searchers of a myriad of personal items and details which he would expect to be free from scrutiny by uninvited eyes. The householder by the entry and search of his residence is stripped bare, in greater or lesser degree, of the privacy which normally surrounds him in his daily living, and, if he should be absent, to an extent of which he will be unaware.

Entry for the purpose of arrest may be expected to be quite different. While the taking into custody of the person of the householder is unquestionably of grave import, there is no accompanying prying into the area of expected privacy attending his possessions and affairs. That personal seizure alone does not require a warrant was established by United States v Watson (423 US 411, supra), which upheld a warrantless arrest made in a public place. In view of the minimal intrusion on the elements of privacy of the home which results from entry on the premises for making an arrest (as compared with the gross intrusion which attends the arrest itself), we perceive no Sufficient reason for distinguishing between an arrest in a public place and an arrest in a residence. To the extent that an arrest will always be distasteful or offensive, there is little reason to assume that arrest within the home is any more so than arrest in a public place; on the contrary, it may well be that because of the added exposure the latter may be more objectionable.

At least as important, and perhaps even more so, in concluding that entries to make arrests are not "unreasonable”— the substantive test under the constitutional proscriptions — is the objective for which they are made, viz., the arrest of one reasonably believed to have committed a felony, with resultant protection to the community. The "reasonableness” of any governmental intrusion is to be judged from two perspectives — that of the defendant, considering the degree and scope of the invasion of his person or property; that of the People, weighing the objective and imperative of governmental action. The community’s interest in the apprehension of criminal suspects is of a higher order than is its concern for the recovery of contraband or evidence; normally the hazards created by the failure to apprehend far exceed the risks which may follow nonrecovery.

The apparent historical acceptance in the English common law of warrantless entries to make felony arrests (2 Hale, Historia Placitorum Coronae, History of Pleas of Crown [1st Amer ed, 1847], p 92; Chitty, Criminal Law [3d Amer, from 2d London, ed, 1836] 22-23), and the existence of statutory authority for such entries in this State since the enactment of the Code of Criminal Procedure in 1881 argue against a holding of unconstitutionality and substantiate the reasonableness of such procedure. In People v Samuel (29 NY2d 252, 264) we said: "While antiquity is not an infallible criterion for determining the scope of constitutional rights, traditional usage and understanding is helpful in defining the privilege against self incrimination.” That rationale is even more persuasive when we are determining "reasonableness” — a quality, not always constant, which reflects and derives substance from the standards and mores of the time and the society.

Nor do we ignore the fact that a number of jurisdictions other than our own have also enacted statutes authorizing warrantless entries of buildings (without exception for homes) for purposes of arrest. The American Law Institute’s Model Code of Pre-Arraignment Procedure makes similar provision in section 120.6, with suggested special restrictions only as to nighttime' entries. The accompanying commentary states: "To go further and require a warrant or a showing of necessity before police may make a felony arrest on private property even in daytime seems unduly restrictive. Moreover, apart from the specially alarming quality of nighttime entries and apart from search considerations, it is far from clear that an arrest in one’s home is so much more threatening or humiliating than a street arrest as to justify further restrictions on the police.” (American Law Institute, Model Code of Pre-Arraignment Procedure [1975], p 307).

For these reasons and in the absence of an explicit determination by the Supreme Court which would permit us no alternative, we hold that the entries made by the police in the cases before us did not violate defendants’ constitutional protections against unreasonable searches and seizures. In reaching this conclusion we are not unmindful of considered decisions in the Federal courts which have reached an opposite result (e.g., United States v Reed, 572 F2d 412, supra; United States v Killebrew, 560 F2d 729).

We turn then to the other contentions made in Payton. First, it is argued that the true purpose of the police officers who entered defendant’s apartment was not to make an arrest but rather to conduct a full-blown search of the premises, in which event the plain view doctrine would not be applicable and the shell casing too should have been suppressed. The determination of the officers’ purpose, however, turned on a question of fact, the resolution of which was dependent on the credibility ascribed by the hearing Judge to the testimony of the entering officer. That factual issue, having been resolved in favor of the People by the suppression court and affirmed at the Appellate Division, is now beyond review by this court.

Next, Payton renews his challenge to the admissibility of the testimony of the Peekskill sporting goods store owner and of the latter’s gun sale record as tainted fruit of the initial unlawful seizure of the gun sale receipt which occurred when defendant’s apartment was illegally searched. To refute defendant’s claim that, but for the seizure of the sales receipt, the prosecution would not have gained access to the testimony or the record, the People assert (as the trial court found after the posttrial hearing) that the allegedly tainted evidence was admissible under the so-called "inevitable discovery” doctrine (cf. People v Fitzpatrick, 32 NY2d 499). Defendant responds that the factual situation here was insufficient to support the application of that doctrine. The evidence, however, is to the contrary.

In the first place the label "inevitable discovery” is inaccurate and therefore misleading. The doctrine does not call for certitude as the literal meaning of the adjective "inevitable” would suggest. What is required is that there be a very high degree of probability that the evidence in question would have been obtained independently of the tainted source. The proof in this case meets that standard and supports the finding of the Trial Judge at the posttrial hearing. Second, any and every application of the doctrine of inevitable discovery will inescapably be exposed to the observation that the police did not in fact pursue the inevitable course to discovery.

The investigating detective testified that, because the murder weapon was never recovered, proof of defendant’s ownership of a gun such as that used in the killing was of critical importance. The detective knew that the weapon used was a Winchester rifle. He also testified that he had learned from a friend and hunting companion of defendant that the latter had purchased such a gun in "upstate New York” in November, 1969. He further stated without contradiction — and this was critical in this instance — that it was "normal police procedure” in investigations such as this to communicate with the Tobacco, Alcohol and Firearms Unit of the United States Treasury Department, which maintains a list of all gun shops, and then to send out communications to and to make personal contacts with such shops in an effort to locate the weapon sought. He stated that in this instance he would have followed this procedure and would have inquired of gun stores, which would have included the one in Peekskill. Inquiry at the Peekskill store would have led directly to defendant because of the records of all gun sales maintained under Federal requirement. In corroboration the owner of the Peeks-kill store testified that he maintained the required records of gun sales and that he was accustomed to checking his records when police inquiries were made. The Trial Judge found that the People had established "that normal police investigative techniques would have uncovered the Peekskill gun dealer” and thus that "the unlawful seizure of the bill of sale was not a sine qua non of the discovery” of the seller. We agree.

Finally, it is asserted that defendant was deprived of his constitutional right to represent himself at his trial. The exercise of this right requires an unequivocal request to proceed pro se (People v McIntyre, 36 NY2d 10, 17), which was lacking in this case. Statements made by defendant as to his being his own lawyer were associated with references to discharging his assigned counsel and securing new representation and were always overshadowed by applications for adjournments and postponements for reasons which he declined to divulge. At no time did he demonstrate an actual fixed intention and desire to proceed without professional assistance in his defense to the charges against him.

It remains only briefly to address the other contention advanced in Riddick — that the police entry was statutorily invalid for the failure of the police officers to give notice of their authority and purpose prior to their entry to make the arrest. The requirement that such notice be given before breaking into a building to obtain access to effect an arrest is of ancient vintage and serves the purpose of providing the person within an opportunity to respond to the demand for admittance, thus obviating the need for forcible entry (Miller v United States, 357 US 301). The statement of the purpose demonstrates the inapplicability here of the statutory section in effect at the time in question which codified the common-law requirement. In Riddick the purpose of the notice requirement was accomplished when, in response to the investigating officer’s knock, defendant’s infant son opened the door, and promptly on entering the officers declared their authority and their purpose to arrest defendant. What is determinative is that the entry was peaceable. No forcible entry was necessary or effected and no prejudice resulted from the officers’ failure to give notice outside the open door.

Accordingly, for the reasons stated, the order of the Appellate Division in each case should be affirmed.

Wachtler, J.

(dissenting). For the reasons stated by Judge Cooke in his dissenting opinion I too would hold that the police need a warrant to enter a home in order to arrest or seize a person, unless there are exigent circumstances. Thus in the Riddick case where there was no exigency I would reverse, suppress the evidence and dismiss the indictment. In the Payton case I would reach substantially the same result as Judge Cooke proposes, but for somewhat different reasons.

Initially it seems to me that in the Payton case the circumstances were sufficiently compelling to permit the police to enter the defendant’s apartment to arrest him without a warrant. The record shows that from the time of the murder the police had actively sought the killer. As a result of their continuous and intensive investigation they soon identified the defendant, two days after the crime, and early the following morning went to his apartment. There they observed a light shining beneath the door and heard a radio playing. Thus for several days the police had been in continuous pursuit of the killer when they arrived at the defendant’s apartment, where they had reason to believe he might be hiding, particularly in view of their observations at the scene. Under these circumstances I believe it was reasonable for the police to continue their pursuit into the apartment in order to take a dangerous killer into custody (cf. People v Fitzpatrick, 32 NY2d 499, 509).

But the right to enter for the limited purpose of arresting the defendant did not justify a full-scale search of the defendant’s apartment for evidence of the crime. The People commendably admitted this at the hearing and the court suppressed all of the evidence seized, except for the shell casing which was found in plain view. I agree with that determination. But I cannot agree with the court’s further holding that certain fruits of the illegal search — namely, the records of a Peekskill gun dealer whose name appeared on a receipt seized during the seach — was properly admissible under the so-called "inevitable discovery” doctrine, on the theory that the police would have discovered this evidence in any event through normal police procedures.

The inevitable discovery doctrine is unrealistic in the purest sense. It permits the court to ignore what really happened and to rely instead on hypothesis. In this case for instance the police admitted that they did, indeed, obtain the gun shop records as a direct result of the illegal seizure of the gun receipt and that the evidence was therefore a classic example of poisoned fruit. Nevertheless ignoring the reality of the direct connection the court held that the evidence was not tainted because the police would, or should, have obtained it in the normal course of their investigation although they had made no effort to do so.

Apart from being completely unrelated to what really happened, this determination must, on the facts of this case, rest on pure conjecture. Without the receipt the only information the police had which could have led them to the record of the gun sale was a statement from the defendant’s friend and hunting companion that the defendant had purchased a weapon, similar to the one sought, in "upstate New York” in November, 1969. Furthermore, although it was noted that the Federal Government requires gun dealers to make a record of their sales, it was conceded that these records are not sent to any central repository. Thus the police could not obtain a record of the sale from the Federal Government. The Federal authorities could only furnish a list of all registered gun dealers in the State. The police would then have to contact every dealer individually to see if a record had been made and was still available.

At the hearing one of the officers testified that at the time there were approximately 1,100 gun dealers registered in the State. The record does not indicate how many of these dealers were located in the New York City area, which presumably could have been eliminated from the search. But even eliminating these dealers the task of locating the record of the sale would have involved a considerable effort. In fact it would have involved such an effort that the police officers themselves admitted that they could not recall a single instance where an investigation of this nature and magnitude had been undertaken. Of course they had not actually employed this approach in this case. Thus the determination that the police would have discovered the sale record in the normal course of their investigation, through communications with gun dealers, does not rest on experience, nor does it even rest on proof of a normal police procedure. As far as this record shows this type of investigation was neither tried nor proven and would have been quite extraordinary.

This is not the type of inevitability which was contemplated in Fitzpatrick (supra, at p 507) where the court repeatedly noted that discovery of the evidence was "certain” and the police had only to look in "the next most reasonable place”. Here there were literally hundreds of reasonable places to look, most of which were widely scattered throughout the State.

Apparently the majority recognizes the difficulty of holding that the police would have inevitably prevailed in the face of so many obstacles. Accordingly they have redefined the inevitable discovery doctrine by holding that it does not actually require "certitude” as the term itself implies, and as we held in Fitzpatrick. It simply requires "a very high degree of probability that the evidence in question would have been obtained independently of the tainted source.” Now apparently the only thing inevitable about the inevitable discovery doctrine is that the police with the benefit of hindsight, will inevitably be able to show that they could have obtained the evidence lawfully by employing some other technique, no matter how hypothetical and no matter how involved of extraordinary resort to the procedure would have been.

This type of reasoning can only serve to erode the exclusionary rule. In many, if not most cases, the police will undoubtedly be able to point to some lead which if pursued with fanatical devotion would have ultimately led them to the evidence which was actually obtained unlawfully. Unfortunately it is in cases where the evidence could have been obtained through lawful, but time-consuming methods that the exclusionary rule is most needed to discourage the police from resorting to the unconstitutional short cut (see Fitter, Fruit of the Poisonous Tree, 56 Cal L Rev 579, 630; see, also, People v Gonzalez, 39 NY2d 122, 131).

The mischief caused by the "inevitable” or "very highly probable” discovery doctrine is well illustrated in the case now before us. Here the majority has held that the police may enter a home without a warrant to make an arrest although they concededly could not have entered to make a search. The theory is that an entry to arrest is less intrusive than a search because it does not involve a wholesale rummaging through the individual’s belongings. Yet, despite the fact that the police did in fact completely rummage through the defendant’s apartment and belongings after entering to make the arrest, the majority holds that the police should not be deprived of the illegal fruits because the evidence would have been discovered in any event in the normal course of the police investigation. This decision can hardly be expected to discourage the police from completely searching the premises for evidence after entering for the "limited” purpose of making an arrest. Thus in this case the inevitable discovery doctrine has even undermined the basic premise on which the majority relies to support its conclusion that an entry to make an arrest is significantly different from an entry to search for evidence.

Accordingly, in the Payton case, I would reverse and suppress all evidence of the purchase of the weapon.

Fuchsberg, J.

(dissenting). I too would reverse in each of these cases.

My deepening concern over the proliferation of rationales which erode the protection the warrant requirement was intended to provide against illegal governmental intrusions on the privacy of home and person puts me at one with Judge Cooke in what he says so well on that subject today. (See, also, Younger, Constitutional Protection on Search and Seizure Dead? 3 Trial, Aug.-Sept., 1967, at p 41.)

But on the matter of "inevitable discovery” and the role it plays in the Payton case in particular, while my views are in harmony with the analysis on which Judge Wachtler would dispose of that issue here, I would add some thoughts of my own.

Though hardly universally accepted (see Fitzpatrick v New York, 414 US 1050 [White, J., dissenting from denial of certiorari]), the "inevitable discovery” exception to the exclusionary rule commended itself to those with whom it originally won favor largely because conceptually it was to apply in factual contexts which, in spirit, if not in dictionary definition, bespoke "inevitability”. Thus, while I appreciate the majority’s reluctance to continue a commitment to a definition which calls for the certitude, if not predestination, connoted by a literal reading of the word "inevitable”, it seems to me that the shift the majority today makes to one which talks only in terms of a degree of "probability” undermines its validity.

No matter how sincerely employed, hindsight rationalization of a train of events that never actually took place is bound to be weighted down with subjective factors difficult to appraise or disprove. Consequently, it would almost always be possible to make a colorably persuasive argument that the illegally discovered evidence would have been turned up in any event.

It follows that the sidestepping of constitutional safeguards will become all too easy — as is well illustrated by Judge Wachtler’s revealing recital of the Payton facts — unless the People, when relying on "inevitable discovery”, are made to meet that burden of proof which, short of certainty, is most demanding and most comprehendible. Therefore, if, as a predicate for the invocation of inevitable discovery, we are to move to an avowed standard short of true "inevitability”, it should be to one that asks no less than proof that lawful discovery would have taken place beyond a reasonable doubt.

The legal distinctions among our varied standards of proof are too often honored in their semantics rather than in their substance (see 9 Wigmore, Evidence [3d ed], § 2497). No doubt this is because they are easier to articulate than to apply. But, at least, the ingrained familiarity which the concept of proof beyond a reasonable doubt enjoys among the members of our society — repeatedly intoned as it is in the determination of guilt or innocence under our system of criminal justice — affords immeasurably more assurance of strict application of its language than we can count on in the verbalistic shadowland where words and phrases such as "preponderance”, "satisfactory”, "clear and convincing”, "reasonable certainty” and now "high degree of probability” too often are forced to dwell.

Cooke, J.

(dissenting). Today, the majority of this court holds that in the absence of exigent circumstances, the police may enter the home of a suspect, whether by force or simply without his consent, in order to effect an arrest for a felony for which they have probable cause but no warrant.

In so doing, the court leaves the law of this State in an anomalous state of flux: the Fourth Amendment forbids police entry into a private home to search for and. seize an object without a warrant except in carefully circumscribed instances (Katz v United States, 389 US 347, 357); yet, in the case of an arrest of a person, where the invasion of personal privacy interests is that much greater, the protections afforded by the amendment may be cast aside based solely upon the arresting officer’s subjective notion of probable cause. Thus, while a citizen’s guarantee to be free from unreasonable governmental intrusion constitutes the heart of the Fourth Amendment, the bifurcated standard between search and arrest announced today accords an individual’s bare possessions a greater quantum of protection than his very person, reviving the values of an era in which property interests were exalted over personal liberties.

Surprisingly, the Supreme Court has yet to confront the question of whether the police may arrest a man in his home —in the absence of exigent circumstances without a warrant (see, e.g., United States v Santana, 427 US 38; Jones v United States, 357 US 493, 499-500), but has, nevertheless afforded valuable insights as to its proper resolution. Thus, in Coolidge v New Hampshire (403 US 443), Justice Stewart, writing for the majority and responding to Justice White’s statement in dissent, stated: "It is clear, then, that the notion that the warrantless entry of a man’s house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man’s house without warrant are per se unreasonable in the absence of some one of a number of well defined 'exigent circumstances.’ * * * If we were to accept MR. JUSTICE WHITE’S view that warrantless entry for purposes of arrest * * * [is] per se reasonable, so long as the police have probable cause, it would be difficult to see the basis for distinguishing searches of houses and seizures of effects. * * * If we were to agree with MR. JUSTICE WHITE that the police may, whenever they have probable cause, make a warrantless entry for the purpose of making an arrest * * * then by the same logic any search or seizure could be carried out without a warrant, and we would simply have to read the Fourth Amendment out of the Constitution” (id., at pp 477-480; see, also, Warden v Hayden, 387 US 294; Davis v Mississippi, 394 US 721, 728; Wong Sun v United States, 371 US 471, 480-481).

Although the point has not been squarely adjudicated since Coolidge (see United States v Watson, 423 US 411, 418, n 6), its proper resolution, it is submitted, is manifest. At the core of the Fourth Amendment, whether in the context of a search or an arrest, is the fundamental concept that any governmental intrusion into an individual’s home or expectation of privacy must be strictly circumscribed (see, e.g., Boyd v United States, 116 US 616, 630; Camara v Municipal Ct., 387 US 523, 528). To achieve that end, the framers of the amendment interposed the warrant requirement between the public and the police, reflecting their conviction that the decision to enter a dwelling should not rest with the officer in the field, but rather with a detached and disinterested Magistrate (McDonald v United States, 335 US 451, 455-456; Johnson v United States, 333 US 10, 13-14). Inasmuch as the purpose of the Fourth Amendment is to guard against arbitrary governmental invasions of the home, the necessity of prior judicial approval should control any contemplated entry, regardless of the purpose for which that entry is sought. By definition, arrest entries must be included within the scope of the amendment, for while such entries are for persons, not things, they are, nonetheless, violations of privacy, the chief evil that the Fourth Amendment was designed to deter (Silverman v United States, 365 US 505, 511).

The court reaches its conclusion that a warrant is not required for a police officer to enter a private home and effect an arrest therein, so long as he has probable cause to believe that a felony has been committed on a number of factors, none of which, it is submitted, supports its holding. Reasoning that the intrusion which attends entry into the home to effect a warrantless arrest is somehow less egregious than entry to conduct a search, the majority simply reads the warrant requirement out of the Fourth Amendment. Even if one were to accept the conclusion that incursion for the purpose of arrest is less extensive than that for search (but see Foley v Connelie, 435 US 291, 297; United States v Watson, 423 US 411, 428 [Powell, J., concurring]; Chimel v California, 395 US 752, 766 [White, J., dissenting]), it is difficult to harmonize the constitutional dictate that any governmental intrusion into the sanctity of the home must be controlled by a neutral Magistrate with whatever actions the police may take after that intrusion is a fait accompli. Indeed, from the standpoint of the citizen — to whom the language of the Fourth Amendment is directed — it makes little difference whether the invasion of the privacy of his home was made to effect a warrant-less arrest or a warrantless search (Lankford v Gelston, 364 F2d 197, 205).

The police are constitutionally forbidden to enter and search an individual’s home in the absence of exigent circumstances, even where there is no doubt that the object of the search is within (Agnello v United States, 269 US 20, 32). Nevertheless, solely because of the officer’s perception of probable cause this same individual may have his constitutional guarantee of privacy violated and may be exposed to arrest while still in his dwelling. The distinction is tenuous at best, for it may be said that an entry to arrest is simply a search for a person rather than a search for things (Dorman v United States, 435 F2d 385, 390-391; Commonwealth v Forde, 367 Mass 798, 805) and that the arrest itself is "quintessentially a seizure” (United States v Watson, 423 US 411, 428 [Powell, J., concurring]). In short, the constitutional guarantee that assures citizens the privacy and security of their homes unless determined otherwise by a judicial officer, applies with equal force in the case of entry to arrest a suspect as it does in the case of entry to search for property (United States v Reed, 527 F2d 412; United States v Killebrew, 560 F2d 729; United States v Calhoun, 542 F2d 1094; United States v Shye, 492 F2d 886; Vance v North Carolina, 432 F2d 984; State v Cook, 115 Ariz 188; People v Ramey, 16 Cal 3d 263, cert den 429 US 929; People v Wolgemuth, 43 Ill App 3d 335).

As the majority notes, proper resolution of these cases hinges on the balancing of two competing, but not necessarily irreconcilable, concerns: the individual’s interest in maximum security within his home, where he has a greater quantum of protection than in public (see United States v Watson, supra; People v De Bour, 40 NY2d 210), and the interest of the State in apprehending felons and maintaining an orderly society. As noted, the Fourth Amendment was drafted to secure the right of privacy against any arbitrary governmental intrusion by taking that decision away from the police and placing it with a neutral Magistrate. But the protections afforded by the amendment are not absolute; instead, they are governed by a standard of general reasonableness (United States v Rabinowitz, 339 US 56, 70 [Frankfurter, J., dissenting]). In some instances where the exigencies of the moment will not tolerate the delay incident to obtaining a warrant, a warrantless entry and arrest will satisfy this ultimate standard of reasonableness (see, e.g., Warden v Hayden, 387 US 294; Ker v California, 374 US 23; People v Hodge, 44 NY2d 553). In still others, an individual may simply be located in an area in which his reasonable expectations of privacy must be subsumed by the demands of the public weal. Thus, where an individual is exposed to public view, expectations of privacy are substantially diminished and warrantless arrests are reasonable (United States v Watson, 423 US 411, supra; Santana v United States, 427 US 38, supra).

But these are not cases where the exigencies of the circumstances would not brook delay or where the arrests were effected in a public place. When an individual is safely ensconced within the confines of his home, special considerations áre brought to bear. It merits little repetition or citation of authority but to note that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” (United States v United States Dist. CL, 407 US 297, 313). The sanctity of a private home is traditional to our Anglo-Saxon heritage (Coke, Third Institutes, p 162), and the Constitution itself points to the proper procedure to be followed in intruding upon this precious sanctuary. That basic principle — the constitutional guarantee that, except in a few jealously guarded circumstances, assures citizens of the privacy and security of their own homes unless a judicial officer should determine otherwise — is applicable not only in cases of entry to search for and seize property, but in instances of entry to search for and seize a person as well. Indeed, the Fourth Amendment itself speaks of searches and seizures of both persons and property in indistinguishable terms. It is illogical at this juncture for the court "to pay homage to the considerable body of law that has developed to protect an individual’s belongings from unreasonable search and seizure in his home, and at the same time assert that identical considerations do not operate to safeguard the individual himself in the same setting” (People v Ramey, 16 Cal 3d 263, 275, supra).

Nor would an onerous burden be placed upon the police by requiring them to obtain approval of a judicial officer prior to their nonconsensual entry into a suspect’s home in the absence of extraordinary circumstances. On the contrary, what imposition of a warrant requirement would accomplish would be the minimization of nonconsensual entry into the home by overzealous police officers who may occasionally lose sight of the citizen’s expectation of privacy. Thus, the warrant requirement would permit a neutral Magistrate to make the decision whether to authorize arrest, just as he must do in the search and seizure context, rather than leave this decision to the ofttimes colored determinations of the police. As Justice Jackson has noted (Johnson v United States, 333 US 10, 13-14): "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”

Lastly, the court relies on the existence of statutes and the American Law Institute imprimatur codifying the common-law rule authorizing warrantless arrests in private homes. To be sure, the statutory authority of a police officer to make a warrantless arrest in this State has been in effect for almost 100 years, but neither antiquity nor legislative unanimity can be determinative of the grave constitutional question presented here (see Brown v Board of Educ., 347 US 483, 490-495; Walz v Tax Comm., 397 US 664, 678) and can never be a substitute for reasoned analysis.

Although I subscribe to the well-reasoned exegesis of Judge Wachtler concerning the majority’s misconception of the inevitable discovery rule, I cannot agree that the facts in the Payton case were so compelling as to allow the police to dispense with a warrant prior to their forcible entry into defendant’s apartment. The police were well aware of defendant’s identity and place of residence the day before their warrantless break in. In the intervening period they had ample opportunity to secure the approval of a detached judicial officer. Moreover, even on the day of the forcible entry, the police were compelled to delay even further while waiting for the arrival of officers from the Emergency Services Department — during which time they again could have secured the necessary warrant. Even barring that course of action, the police could simply have staked out the apartment while waiting for a judicial officer to authorize entry into the home. The difference between action which would have been constitutionally proper and that which was taken is not slight. Had the police in fact obtained a warrant, limiting the scope of their activities after entry, their patently illegal actions in conducting a full-blown search of the premises might have been avoided (cf. Mincey v Arizona, 437 US 385, 393-395).

In sum, a serious incongruity between the Fourth Amendment protections applicable to search and arrest has now been created. If the guarantee afforded by the Fourth Amendment is to remain viable, the police must be required, in absence of exigency, to obtain a warrant from a disinterested judicial officer before invading domestic perimeters for whatever purpose. The abuses which might result from the holding of the majority are legion. Probable cause in the eyes of a police officer is a somewhat amorphous concept and the privacy of our citizenry is far too cherished a right to be entrusted to his discretion. Where there is no warrant authorizing entry into the home and no circumstances necessitating immediate police action, it is constitutionally imperative to preclude law enforcement officers from effecting a forcible or nonconsensual entry into the home to make a felony arrest.

Accordingly, I vote that the orders of the Appellate Division should be reversed and, in each case, a new trial granted.

Chief Judge Breitel and Judges Jasen and Gabrielli concur with Judge Jones; Judges Wachtler, Fuchsberg and Cooke dissent and vote to reverse and order a new trial in separate dissenting opinions.

In People v Payton: Order affirmed.

Chief Judge Breitel and Judges Jasen and Gabrielli concur with Judge Jones; Judges Wachtler and Fuchsberg dissent and vote to reverse and dismiss the indictment in separate dissenting opinions; Judge Cooke dissents and votes to reverse and order a new trial in another dissenting opinion.

In People v Riddick: Order affirmed.

      . Sections 177 and 178 of the Code of Criminal Procedure, in effect at the time of this entry, provided:
      "§ 177. In what cases allowed.
      "A peace officer may, without a warrant, arrest a person,
      "1. For an offense, committed or attempted in his presence, or where a police officer as enumerated in section one hundred fifty-four-a of the code of criminal procedure, has reasonable grounds for believing that an offense is being committed in his presence.
      "2. When the person arrested has committed a felony, although not in his presence;
      "3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it;
      "4. When he has reasonable cause for believing that a felony has been committed, and that the person arrested has committed it, though it should afterward appear that no felony has been committed, or, if committed, that the person arrested did not commit it;
      "5. When he has reasonable cause for believing that a person has been legally arrested by a citizen as provided in sections one hundred eighty-five, one hundred eighty-six and one hundred eighty-seven of this code.”
      "§ 178. May break open a door or window, if admittance refused.
      "To make an arrest, as provided in the last section, the officer may break open an outer or inner door or window of a building, if, after notice of his office and purpose, he be refused admittance.”

      . CPL 140.15 provides with respect to arrest without a warrant: "4. In order to effect such an arrest, a police officer may enter premises in which he reasonably believes such person to be present, under the same circumstances and in the same manner as would be authorized, by the provisions of subdivisions four and five of section 120.80, if he were attempting to make such arrest pursuant to a warrant of arrest.”
      Subdivisions 4 and 5 of section 120.80 provide:
      "4. In order to effect the arrest, the police officer may, under circumstances and in a manner prescribed in this subdivision, enter any premises in which he reasonably believes the defendant to be present. Before such entry, he must give, or make reasonable effort to give, notice of his authority and purpose to an occupant thereof, unless there is reasonable cause to believe that the giving of such notice will:
      "(a) Result in the defendant escaping or attempting to escape; or
      "(b) Endanger the life or safety of the officer or another person; or
      "(c) Result in the destruction, damaging or secretion of material evidence.
      "5. If the officer is authorized to enter premises without giving notice of his authority and purpose, or if after giving such notice he is not admitted, he may enter such premises, and by a breaking if necessary.”

      . Sections 177 and 178 of that statute provided as follows:
      "§ 177. * * *
      "A peace officer may, without a warrant, arrest a person,
      "1. For a crime, committed or attempted in his presence;
      "2. When the person arrested has committed a felony, although not in his presence;
      "3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it”.
      "§ 178. * * *
      "To make an arrest, as provided in the last section, the officer may break open an outer or inner door or window of a building, if, after notice of his office and purpose, he be refused admittance.”
      These sections remained unchanged, except for expansion of the grounds for warrantless arrest provided in section 177 by amendments in 1960, 1963 and 1967, until replaced by the Criminal Procedure Law on September 1, 1971. The substance of the provisions was continued and expanded in sections 140.10, 140.15 (subd 4) and 140.25 (subds 1-3) of the present statute.

      . American Law Institute, Model Code of Pre-Arraignment Procedure (1975) Commentary, Appendix XI.

      . When the cross-examiner resorted to the "reductio ad absurdum”, the officer readily admitted that he had never known any such inquiry to include every gun shop in the State. There was, however, no contradiction of his testimony as to the normal police procedure in making such investigations.

      . As to the possible alternative ground for reaching this conclusion, namely, that the testimony of the keeper of the gun shop was admissible under the attenuation rule with respect to the testimony of live witnesses, see People v Mendez (28 NY2d 94) (compare, also, United States v Ceccolini, 435 US 268).

      . CPL 120.8 (subd 5) (supra, n 2).


source: Caselaw Access Project

author: Gabrielli, J.

license: Public Domain

text:
    In the Matter of the Arbitration between Marlene Industries Corp., Appellant, and Carnac Textiles, Inc., Respondent.
    Argued May 30, 1978;

    decided July 11, 1978

      POINTS OF COUNSEL

      Richard Weinberger for appellant.
    I. The lower court’s application of section 2-201 of the Uniform Commercial Code to the instant factual situation is improper and misplaced. (Trafalgar Sq. v Reeves Bros., 35 AD2d 194; Itoh & Co. [America] v Jordan Int. Co., 552 F2d 1228.) II. The inclusion of a specific prohibition against additional terms or conditions in the buyer’s order precludes any meeting of the minds as to arbitration when the acceptance added provision for arbitration in contravention of the limitation. (Matter of Doughboy Inds. [Pantasote Co.], 17 AD2d 216; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of Trim Corp. of Amer. v Richbloom Fabrics Corp., 49 AD2d 845; Tunis Mfg. Corp. [Allen Knitting Mills], 87 Misc 2d 1091; Tunis Mfg. Corp. v Mystic Mills, 40 AD2d 664.)

      Martin W. Fogel for respondent.
    I. The purchase order of petitioner-appellant has no validity and hence no existence. II. As between merchants the arbitration clause contained in Carnac’s written .confirmation is binding upon Marlene herein. (Matter of Helen Whiting, Inc. [Trojan Textile Corp.], 307 NY 360; Trafalgar Sq. v Reeves Bros., 35 AD2d 194; Matter of Baroque Fashions [Scotney Mills], 19 AD2d 873; Matter of Charles S. Fields, Inc. v American Hydrotherm Corp., 5 AD2d 647; Matter of Japan Cotton Trading Co. v Farber, 233 App Div 354; Matter of Perfect Fit Prod. Mfg. Co. [Pantasote Co.], 5 Misc 2d 348.)
   OPINION OF THE COURT

Gabrielli, J.

This appeal involves yet another of the many conflicts which arise as a result of the all too common business practice of blithely drafting, sending, receiving, and filing unread numerous purchase orders, acknowledgments, and other divers forms containing a myriad of discrepant terms. Both parties agree that they have entered into a contract for the sale of goods; indeed, it^would appear that there is no disagreement as to most of the essential terms of their contract. They do disagree, however, as to whether their agreement includes a provision for the arbitration of disputes arising from the contract.

Petitioner Marlene Industries Corp. (Marlene) appeals from an order of the Appellate Division which, one Justice dissenting, affirmed a judgment of Supreme Court denying an application to stay arbitration. There should be a reversal and arbitration should be stayed, for we conclude that the parties did not contract to arbitrate.

The dispute between the parties, insofar as it is relevant on this appeal, is founded upon an alleged breach by Marlene of a contract to purchase certain fabrics from respondent Carnac Textiles, Inc. (Carnac). The transaction was instituted when Marlene orally placed an order for the fabrics with Carnac. Neither party contends that any method of dispute resolution was discussed at that time. Almost immediately thereafter, Marlene sent Carnac a "purchase order” and Carnac sent Marlene an "acknowledgement of order”. Marlene’s form did not provide for arbitration; it did declare that it would not become effective as a contract unless signed by the seller, and that its terms could not be "superceded by a[n] unsigned contract notwithstanding retention”. Carnac’s form, on the other hand, contained an arbitration clause placed in the midst of some 13 lines of small type "boilerplate”. It also instructed the buyer to "sign and return one copy of this confirmation”. However, neither party signed the other’s form. When a dispute subsequently arose, Carnac sought arbitration, and Marlene moved for a stay.

The courts below have denied the application to stay arbitration, the Appellate Division reasoning that "as between merchants where 'a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents’ written notice of objection should be given within 10 days after it is received” (59 AD2d 359, 360, quoting Uniform Commercial Code, § 2-201, subd [2]). Since Marlene had retained without objection the form containing the arbitration clause, the court concluded that Marlene was bound by that clause. We disagree.

This case presents a classic example of the "battle of the forms”, and its solution is to be derived by reference to section 2-207 of the Uniform Commercial Code, which is specifically designed to resolve such disputes. The courts below erred in applying subdivision (2) of section 2-201, for that statute deals solely with the question whether a contract exists which is enforceable in the face of a Statute of Frauds defense; it has no application to a situation such as this, in which it is conceded that a contract does exist and the dispute goes only to the terms of that contract. In light of the disparate purposes of the two sections, application of the wrong provision will often result in an erroneous conclusion. As has been noted by a recognized authority on the code, "[t]he easiest way to avoid the miscarriages this confusion perpetrates is simply to fix in mind that the two sections have nothing to do with each other. Though each has a special rule for merchants sounding very much like the other, their respective functions are unrelated. Section 2-201(2) has its role in the context of a challenge to the use of the statute of frauds to prevent proof of an alleged agreement, whereas the merchant rule of section 2-207(2) is for use in determining what are the terms of an admitted agreement” (Duesenberg, General Provisions, Sales, Bulk Transfers and Documents of Title, 30 Business Law 847, 853).

Subdivison (2) of section 2-207 is applicable to cases such as this, in which there is a consensus that a contract exists, but disagreement as to what terms have been included in that contract. Subdivision (1) of section 2-207 was intended to abrogate the harsh "mirror-image” rule of common law, pursuant to which any deviation in the language of a purported acceptance from the exact terms of the offer transformed that "acceptance” into a counter-offer and thus precluded contract formation on the basis of those two documents alone (see Poel v Brunswick-Balke-Collender Co., 216 NY 310). Under subdivision (1) of section 2-207, however, an acceptance containing additional terms will operate as an acceptance unless it is "expressly made conditional on assent to the additional or different terms”. Having thus departed from the common-law doctrine, it became necessary for the code to make some provision as to the effect upon the contract of such additional terms in an acceptance. Subdivision (2) was designed to deal with that problem.

Before continuing, we would note that the section speaks of both acceptances and written confirmations. It is thus intended to include at least two distinct situations: one in which the parties have reached a prior oral contract and any writings serve only as confirmation of that contract; and one in which the prior dealings of the parties did not comprise actual formation of a contract, and the writings themselves serve as offer and/or acceptance. In either case, the writing or writings may contain additional terms, and in either case the effect of such additional terms under the code is the same. Thus, on this appeal, since the prior discussions of the parties did not reach the question of dispute resolution, it is unnecessary to determine whether those discussions rose to the level of contract formation, or whether no contract was created until the exchange of forms. Therefore, whether Marlene’s form is an offer and Carnac’s an acceptance, or whether both are mere confirmations of an existing oral contract, the result in this case is the same, and that result is dependent upon the operation of subdivision (2) of section 2-207.

Subdivision (2) of section 2-207 provides that any additional terms in an acceptance or a written confirmation are to be considered merely proposals for additions to the contract, and that such terms normally will not become a part of the contract unless expressly agreed to by the other party. As with many sections of the code, however, there is a special provision for merchants:

"(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
"(a) the offer expressly limits acceptance to the terms of the offer;
"(b) they materially alter it; or
"(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received” (Uniform Commercial Code, § 2-207, subd [2]).

The parties to this dispute are certainly merchants, and the arbitration clause is clearly a proposed additional term, whether Carnac’s form be considered an acceptance of an oral or written offer or a written confirmation of an oral agreement. As such, it became a part of the contract unless one of the three listed exceptions is applicable. We hold that the inclusion of an arbitration agreement materially alters a contract for the sale of goods, and thus, pursuant to section 2-207 (subd [2], par [b]), it will not become a part of such a contract unless both parties explicitly agree to it.

It has long been the rule in this State that the parties to a commercial transaction "will not be held to have chosen arbitration as the forum for the resolution of their disputes in the absence of an express, unequivocal agreement to that effect; absent such an explicit commitment neither party may be compelled to arbitrate” (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 512; accord Gangel v De Groot, 41 NY2d 840, 841; Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288, 289; Matter of Lehman v Ostrovsky, 264 NY 130, 132). The reason for this requirement, quite simply, is that by agreeing to arbitrate a party waives in large part many of his normal rights under the procedural and substantive law of the State, and it would be unfair to infer such a significant waiver on the basis of anything less than a clear indication of intent (see Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], supra, p 289; Siegel, New York Practice, § 588, p 835).

Since an arbitration agreement in the context of a commercial transaction "must be clear and direct, and must not depend upon implication, inveiglement or subtlety * * * [its] existence * * * should not depend solely upon the conflicting fine print of commercial forms which cross one another but never meet” (Matter of Doughboy Inds. [Pantasote Co.] 17 AD2d 216, 220). Thus, at least under this so-called "New York Rule” (Squillante, General Provisions, Sales, Bulk Transfers and Documents of Title, 33 Business Law 1875, 1881), it is clear that an arbitration clause is a material addition which can become part of a contract only if it is expressly assented to by both parties (see Matter of Doughboy Inds. [Pantasote Co.] supra; accord Frances Hosiery Mills v Burlington Inds., 285 NC 344; see, also, Duesenberg, General Provisions, Sales, Bulk Transfers, and Documents of Title, 30 Business Law 847, 853). Applying these principles to this case, we conclude that the contract between Marlene and Carnac does not contain an arbitration clause; hence, the motion to permanently stay arbitration should have been granted.

Accordingly, the order appealed from should be reversed, with costs.

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

Order reversed, with costs, and the motion to permanently stay arbitration granted.

      . The proper and rather limited role of subdivision (2) of section 2-201 has been graphically illustrated by Professors White and Summers, who consider it to be a partial exception to the Statute of Frauds which “merely ameliorates the writing requirement. A writing is still required, but it need not be signed by the party to be charged. The character of this exception is best understood in light of the form of fraud it was designed to combat. Assume that Orval Orfed and Len Lemhi orally agree over the telphone that Orfed will sell Lemhi 1000 bushels of wheat at $40 a bushel. Orfed, the seller, thereafter sends a signed confirmatory memorandum to Lemhi reciting the terms of the deal, a common practice in such transactions. Such a memo would be good against Orfed under 2-201 should Orfed back out and Lemhi sue him for damages. But absent 2-201(2) the confirmatory memo would not be good against Lemhi, for it is not signed by him as required by 2-201(1). Thus Lemhi would be free to sit back and 'play the market.’ If at delivery date the cost of wheat had fallen to some level below $40 a bushel, and he wanted to buy elsewhere, he could back out, whereas Orfed could not back out, at least so far as the statute of frauds goes, should the market rise. Section 2-201(2) is designed to prevent the Lemhis of the world from taking advantage of the Orfeds. It says that a memo good against Orfed will also be good against Lemhi provided that (1) both are merchants, (2) the memo is sent by Orfed to Lemhi within a reasonable time (after the phone call?), (3) the memo by its terms 'confirms’ the oral contract, (4) the memo is good against Orfed uner 2-201(1), (5) Lemhi receives it, (6) Lemhi has 'reason to know its contents,’ and (7) Lemhi does not object to its contents within ten days of receipt. This carefully circumscribed section thus seeks to combat one form of fraud which pre-Code versions of the statute of frauds actually facilitate. At the same time 2-201(2) itself encourages the common and wise business practice of sending memoranda confirming oral deals, for the section obviates a disadvantage to which the sender would otherwise be subject” (White & Summers, Uniform Commercial Code, § 2-3, pp 47-48).

      . Assuming, arguendo, that Carnac’s form was an acceptance rather than a confirmation, we would note that it did not expressly condition acceptance upon Marlene’s assent to inclusion of an arbitration provision (but cf. Roto-Lith v Bartlett & Co., 297 F2d 497).

      . It should be noted that in some cases, there may be no prior oral agreement, and the terms of the forms utilized may be so divergent as to preclude contract formation in the absence of further action upon the part of the parties (cf. Uniform Commercial Code, § 2-207, subd [3]). This is not such a case.


text:
    Mayor of the Village of Mount Kisco et al., Respondents, and William J. Green, Intervenor-Respondent, v Supervisor of the Town of Bedford et al. Appellants.
    Argued May 31, 1978;
    decided July 11, 1978

      POINTS OF COUNSEL

      Joseph J. Buderwitz, Jr., Alfred E. Page, Jr., and James F. Donohue for appellants.
    I. The determination of the court below that the proposed annexation is in the over-all public interest was arbitrary and capricious and should be reversed. (Matter of City of Saratoga Springs v Town of Greenfield, 34 AD2d 364, 28 NY2d 482; City of Batavia v Town of Batavia, 45 AD2d 203, 35 NY2d 644; Matter of City Council of City of Mechanicville v Town Bd. of Town of Halfmoon, 32 AD2d 152, 27 NY2d 369; Matter of Common Council of City of Albany v Town Bd. of Town of Bethlehem, 26 AD2d 230, 19 NY2d 646; Matter of Board of Trustees of Inc. Vil. of Warwick v Town Bd. of Town of Warwick, Orange County, 56 AD2d 928; Matter of Village of Hilton v Town of Parma, 27 AD2d 978; Matter of Common Council of City of Middletown v Town Bd. of Town of Wallkill, 29 AD2d 561; Matter of Common Council of City of Glens Falls v Town Bd. of Town of Queensbury, 30 AD2d 577.) II. Appeal to the Court of Appeals from an adjudication by the Appellate Division of the issue of whether a proposed annexation is in the over-all public interest is available as a matter of right, and the scope of review extends to factual as well as legal issues; the determination of over-all public interest is a legal issue; to the extent that the enabling statute is held to preclude, directly or indirectly, a full appellate review of annexation adjudications, it is unconstitutional. (Matter of Sarisohn, 21 NY2d 36, Matter of Fineman v Camp Ga-He-Ga, 258 NY 423.)

      Gerald W. Matlin for respondents.
    I. The court below properly determined that the annexation of the property here in question was in the over-all public interest and should be confirmed in all respects. (Matter of City of Saratoga Springs v Town of Greenfield, 34 AD2d 364, 28 NY2d 482; City of Batavia v Town of Batavia, 45 AD2d 203.) II. The decision of the court below approving annexation was based on the appropriate findings of facts and conclusions of law and was not in any way arbitrary or capricious or an abuse of the court’s judicial discretion. III. Appeal to the Court of Appeals from an adjudication by the Appellate Division of whether a proposed annexation is in the over-all public interest is not available as a matter of right and the scope of review does not extend to factual issues.

      Henry J. Smith, John G. McQuaid, Gerald Nolan, James Dempsey and Thomas J. Singleton for intervenor-respondent.
    I. The sole issue before this court is whether there was substantial evidence in the record to support the determination of the court below that the annexation is in the over-all public interest. (Matter of City Council of City of Mechanic

      ville v Town Bd. of Town of Halfmoon, 27 NY2d 369; Reed v McCord, 160 NY 330.) II. There was overwhelming proof to support the finding of the court below that annexation is in the over-all public interest. (Matter of Common Council of City of Gloversville v Town Bd. of Town of Johnstown, 32 NY2d 1; Matter of City of Saratoga Springs v Town of Greenfield, 34 AD2d 364, 28 NY2d 482; City of Batavia v Town of Batavia, 45 AD2d 203; Matter of Common Council of City of Albany v Town Bd. of Town of Bethlehem, 26 AD2d 230, 19 NY2d 646; Matter of Board of Trustees of Inc. Vil. of Warwick v Town Bd. of Town of Warwick, Orange County, 56 AD2d 928; Matter of Common Council of City of Middletown v Town Bd. of Town of Wallkill, 29 AD2d 561.) III. The decisions of the court below rendered after full consideration of all facts, constituted a valid finding that annexation is in the over-all public interest. (Matter of City Council of City of Mechanicville v Town Bd. of Town of Halfmoon, 27 NY2d 369.) IV. The claim of unconstitutionality of subdivision 10 of section 712 of the General Municipal Law is untimely raised, has in effect already been determined upon the prior "appeal as of right” and is, in all events, legally unfounded. (Matter of City Council of City of Mechanicville v Town Bd. of Town of Halfmoon, 27 NY2d 369; Matter of City of Saratoga Springs v Town of Greenheld, 34 AD2d 364, 28 NY2d 282; City of Batavia v Town of Batavia, 45 AD2d 203; Leach v Auwell, 154 App Div 170; People v Dunn, 157 NY 528.)

      Albert K. Butzel and Barry S. Neuman for the Regional Review League and Federated Conservationists of Westchester County, amicus curiae.

    I. The court below failed to address or assess factors which, as a matter of law, were required to be taken into account before a determination could be made as to the "over-all public interest”. (Matter of City of Saratoga Springs v Town of Greenfield, 34 AD2d 364; Matter of City Council of City of Mechanicville v Town Bd. of Town of Halfmoon, 27 NY2d 369; Golden v Planning Bd. of Ramapo, 30 NY2d 359; Matter of Common Council of City of Glens Falls v Town Bd. of Queensbury, 30 AD2d 577, 32 AD2d 855; Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221; Matter of Common Council of City of Middletown v Town Bd. of Town of Wallkill, 29 AD2d 561; Matter of Board of Trustees of Inc. Vil. of Warwick v Town Bd. of Town of Warwick, Orange County, 56 AD2d 928.) II. The court below failed to set forth findings and conclusions as required by law.
   OPINION OF THE COURT

Gabrielli, J.

The court is presented with a controverted proposed annexation by a municipality of territory within an adjoining town. The Supervisor and Town Board of the Town of Bedford ask this court to overturn a judgment of the Appellate Division which determined that annexation by the Village of Mount Kisco of certain lands presently located in the town adjacent to the village border is in the over-all public interest (see General Municipal Law, § 712, subd 10). We decline this invitation, and affirm the judgment appealed from.

The village seeks to annex 224.2 acres located on its southeasterly border. The bulk of that land is owned by the intervenor, William Green, who also has options to purchase the remainder of the acreage. Green wishes to build a 350-unit luxury condominium complex on 40 acres; the rest of the land is to be conveyed to a conservation organization to be held in perpetuity as open space. On the basis of studies he made indicating that the various municipal and public services necessary for such a project could only be provided by the village, and not by what is essentially a rural town, Green sought to have the land annexed by the village pursuant to article 17 of the General Municipal Law. The village board of trustees determined that annexation was in the over-all public interest; the town board, however, found that it was not. The village then commenced this proceeding pursuant to section 712 of the General Municipal Law, seeking to overturn the decision of the town board.

In 1963 the Legislature, in its implementation of the provisions of the New York Constitution (art IX, § 1, subd [d]) relating to annexation of territory by local governments, adopted article 17 of the General Municipal Law. Section 712 of this article provides that the appropriate Appellate Division shall have the responsibility of determining whether a proposed annexation is in the over-all public interest. It is further required that upon receipt of the report of three referees designated by that court, it shall "after hearing oral argument on the report of the referees, make its own adjudication and determination, on the law and the facts, on all questions presented to the referees and substitute its judgment for that of any of the governing boards of the local governments as made in their respective determinations and enter its judgment on the issue of whether the annexation is in the over-all public interest” (General Municipal Law, § 712, subd 10).

The Appellate Division designated three referees, all Justices of the Supreme Court as required by statute (General Municipal Law, § 712, subd 6), who conducted an exhaustive inquiry into the proposal. The record of that hearing, as well as the referees’ report itself, clearly show that the needs of the planned condominium complex are much more compatible with the substantially greater public services available in the village than with those more limited services provided by the town. Indeed, many of the public services which are available to town residents located near the village are apparently presently provided only by the village, at a somewhat higher rate than that charged to its own residents. After reviewing the entire situation, the referees declared that "[t]he development plan is excellent in concept. If it were carried out, it would provide an attractive, clustered residential community which would contribute substantial tax revenues to the village, the town and the school district, in excess of municipal costs. At the same time, it would set aside a sizable rustic land area as open space in perpetuity.” Although acknowledging that annexation would otherwise be in the public interest, nonetheless the referees reported against annexation, solely because of what they viewed as "the lack of any well-conceived plan for sewage disposal showing a reasonable expectancy of success.”

Upon receiving this report, the Appellate Division, rather than immediately exercising its power to determine whether annexation was in the over-all public interest, instead remitted the matter to the referees for reconsideration in light of intervening events. It appears that Green had originally hoped that the complex would be able to utilize the existing village sewage disposal system. For various reasons not pertinent to this appeal, it eventually became obvious that such was not to be. At that point, Green began to develop plans for a private sewage disposal system for the complex, but the referees were apparently not satisfied with the progress of those plans. They considered the proposals to be too speculative, and thus determined that annexation was not in the best interest of the public, for it would only be so if the condominium project were to become a reality. Shortly thereafter, however, Green obtained a pollutant discharge elimination system permit from the State Department of Environmental Conservation. The Appellate Division, before making its adjudication, deemed it necessary to determine the effect of this permit on the project.

There then followed the second hearing before the referees. Two of the referees adhered to their original determination, stating that the sewage disposal plan was still too conjectural, and thus the project as a whole was too speculative to warrant annexation. The third, however, disagreed, concluding that there was no reason to believe that the condominium project would not be successfully completed were the village to annex the land. The Appellate Division, after considering the various reports and entertaining oral argument, determined that the project was not too speculative, denied the town’s motion to have the referees’ report confirmed, granted the application of the village and Green to annul the determination of the town board disapproving the proposed annnexation, and adjudged that the annexation is in the over-all public interest, concluding, inter alia, that the landowner could and would build a sewage treatment plant meeting all government standards. The town appeals from the judgment entered by the Appellate Division.

Initially, we would note that the town requests this court to undertake a complete review of the law and the facts. This we may not do. As we have already held in clear and unmistakable terms in Matter of City Council of City of Mechanicville v Town Bd. of Town of Halfmoon (27 NY2d 369), our power to review determinations of the Appellate Division made pursuant to article 17 of the General Municipal Law is quite circumscribed. The function of the Appellate Division in an annexation proceeding is an extraordinary one which does not fit neatly within the usual rubrics of judicial activity. It is more closely analogous to what is normally considered to be quasi-legislative activity, for it involves the resolution of conflicting policy determinations by two governmental entities. The statutory scheme quite distinctly places the responsibility for this determination solely upon the Appellate Division (see General Municipal Law, § 712, subd 10), and our powers of review are accordingly quite limited. As we have previously stated when presented with a challenge to an annexation determination, "so long as the Appellate Division acted pursuant to law its judgment may not be overturned. Any issues resolved by it remain invulnerable if there was any rational basis for its findings and conclusions” (Matter of City Council of City of Mechanicville v Town Bd. of Town of Halfmoon, supra, pp 373-374).

In the instant case, no patent error of law is suggested (cf. Matter of Common Council of City of Gloversville v Town Bd. of Town of Johnstown, 32 NY2d 1). Rather, the town essentially argues that the Appellate Division incorrectly resolved the underlying question of law and fact it was called upon to consider: whether annexation is in the over-all public interest. In view of the limited scope of our review, we are required to affirm the judgment of the Appellate Division unless it is completely irrational, regardless of what we might have done were we free to address the question de novo. As it is, the initial referees’ report itself indicates that annexation would be in the public interest were it not for the uncertainty created by the sewer system dispute. The Appellate Division has concluded that in light of the issuance of the permit by the State for the system, whatever uncertainty previously might have existed has since been sufficiently obviated as to warrant a finding that annexation is in the over-all interest of the public. This decision is certainly not without any rational basis, and hence must be sustained.

Accordingly, the judgment appealed from should be affirmed, without costs.

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

Judgment affirmed.