author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Harold Brown, Appellant.
    Argued March 24, 1982;
    decided May 20, 1982

      POINTS OF COUNSEL

      Penelope D. Clute for appellant.
    I. The testimony of Patricia McCarthy that she observed three men leave the front of the apartment building was false because it is physically impossible to view the front of the building from the Doherty apartment and the prosecution must have known this testimony was false. (Perkins v LeFevre, 642 F2d 37.) II. The false testimony of McCarthy, which was uncorrected by the prosecution, violated defendant’s due process guarantees. (Giglio v United States, 405 US 150; Napue v Illinois, 360 US 264; United States ex rel. Washington v Vincent, 525 F2d 262, cert den sub nom. Bombard, Correctional Supt. v Washington, 424 US 934; People v Simmons, 36 NY2d 126; United States v Agurs, 427 US 97; Annunziato v Manson, 566 F2d 410; United States v Runge, 593 F2d 66; United States v Burkhead, 491 F Supp 1166; People v Savvides, 1 NY2d 554.) III. The prosecutor unconstitutionally failed to disclose to defendant an exculpatory statement made by codefendant Eric Teen. (Brady v Maryland, 373 US 83; People v Cwikla, 46 NY2d 434; People v Simmons, 36 NY2d 126; Taylor v Lombard, 606 F2d 371; Martinez v Wainwright, 621 F2d 184.) IV. The introduction in evidence against defendant of a tape recording purporting to be a conversation between him and admitted conspirator Finetti constituted fraud and misrepresentation on the part of the prosecution. (United States v Fuentes, 563 F2d 527; United States v Biggins, 551 F2d 64; United States v Knohl, 379 F2d 427, 389 US 973; United States v

      McKeever, 169 F Supp 426; United States v McMillan, 508 F2d 101; People v McGee, 49 NY2d 48; People v Connelly, 35 NY2d 171; People v Lawson, 75 AD2d 597; People v Rivera, 70 AD2d 625.) V. The tape recording introduced at trial purporting to be a January 9, 1976 conversation between defendant and admitted conspirator Finetti was obtained in violation of defendant’s right to counsel, privilege against self incrimination and due process guarantees. (People v Arthur, 22 NY2d 325; People v Hobson, 39 NY2d 479; People v Rogers, 48 NY2d 167; People v Skinner, 52 NY2d 24; People v Townes, 41 NY2d 97; People v Roberson, 41 NY2d 106; People v Waterman, 9 NY2d 561; Spano v New York, 360 US 315; Massiah v United States, 377 US 201.) VI. The courts below erred in denying defendant’s motion to vacate judgment without holding an evidentiary hearing. (People v Crimmins, 38 NY2d 407; People v Session, 34 NY2d 254; People v Wedra, 56 AD2d 903; People v Ausserau, 77 AD2d 152.) VII. The Court of Appeals may review the denial of defendant’s motion to vacate judgment on the grounds of denial of constitutional rights and prosecutorial misconduct, as well as on the grounds of newly discovered evidence. (People v Crimmins, 38 NY2d 407.)

      Elizabeth Holtzman, District Attorney (Roseann B. MacKechnie and Barbara D. Underwood of counsel), for respondent.
    I. The order of the court below, which affirmed the lower court’s denial of appellant’s motion to vacate, should not be disturbed. (People v Crimmins, 38 NY2d 407; People v Piazza, 48 NY2d 151; People v Monroe, 40 NY2d 1096; People v Ford, 46 NY2d 1021; People v Session, 34 NY2d 254; People v Savvides, 1 NY2d 554; People v Andre W., 44 NY2d 179; People v Geaslen, 54 NY2d 510; United States v Agurs, 427 US 97; People v Ausserau, 77 AD2d 152.) II. Appellant has waived review on the issue of the authenticity of the taped conversation between himself and coconspirator Vito Finetti; in any event, alleged trial errors are not reviewable in a collateral proceeding. (People ex rel. Gibbs v Vincent, 39 NY2d 918.) III. Appellant cannot now assert a violation of the right to counsel announced in People v Skinner, because the retroactive effect of that rule does not extend to cases in which the direct appellate. process has concluded. (People v Skinner, 52 NY2d 24; People v Pepper, 53 NY2d 213; People v Albro, 52 NY2d 619; People v Bell, 50 NY2d 869; People v Singer, 44 NY2d 241; People v Muller, 11 NY2d 154, 371 US 850.)
   OPINION OF THE COURT

Wachtler, J.

The question presented on this appeal is whether the courts below properly denied defendant’s motion to vacate a judgment of conviction, grounded on claims of prosecutorial misconduct, without initially conducting an evidentiary hearing. We hold that the facts of this case do not demonstrate that the lower courts abused their discretion as a matter of law and therefore affirm the denial of the motion to vacate.

Defendant was indicted for soliciting and conspiring with Vito Finetti, Vincent Pastore, Eric Teen and Joseph Medina to murder the defendant’s business partner, Thomas Wright. Pastore, Medina and Teen killed Wright on November 17,1975. Defendant was convicted of murder in the second degree (Penal Law, § 125.25), conspiracy in the first degree (Penal Law, § 105.17) and criminal possession of a weapon in the second degree (Penal Law, § 265.03). The Appellate Division unanimously affirmed the conviction, without opinion, and defendant moved, pro se, to vacate the judgment on the grounds of newly discovered evidence (CPL 440.10, subd 1, par [g]) and prosecutorial misconduct (CPL 440.10, subd 1, par [c]). The trial court denied the motion in all respects without a hearing and the Appellate Division affirmed.

Defendant’s first contention on the motion was that newly discovered evidence demonstrated that the testimony of Patricia McCarthy, an eyewitness to certain events on the evening of November 17,1975, was false. Ms. McCarthy testified that at 11:30 p.m. while visiting an apartment in Brooklyn on the night in question, Medina and Teen, her boyfriend, left the apartment and moments later she heard a noise in the hallway. When she looked out, she observed a white male running down the stairs. Responding to an unknown person’s directions she returned to her apartment. She stated that from her bedroom window she then observed Teen and Medina exit the building with a black male walking between them.

Defendant’s motion asserts that the bedroom window of the apartment in question does not overlook the front of the building and that McCarthy could not have seen what she testified to. Defendant claims that a private investigation undertaken after his conviction revealed building department records which conclusively establish that the witness could not possibly have seen the area in the front of the building from the bedroom window.

The trial court held that the records of the building department, which presumably existed since the building in question was constructed, were available to the defense at the time of trial and therefore do not constitute newly discovered evidence. The Appellate Division affirmed and, as we noted in People v Crimmins (38 NY2d 407, 409), this court has no power to review a discretionary order denying a motion to vacate a judgment upon the ground of newly discovered evidence.

Defendant’s motion to vacate also presented two claims premised on alleged prosecutorial misconduct. Trial Term also denied this branch of the motion and defendant now contends that it was error for the court to have done so without a hearing. Contrary to the rule which obtains with respect to newly discovered evidence, denial without a hearing of motions to vacate judgment on the ground of prosecutorial misconduct are reviewable to determine whether the trial court abused its discretion as a matter of law in its denial of a hearing (People v Crimmins, supra, at p 419). We conclude that there was no such abuse in this case. Defendant maintains that the prosecution knowingly permitted Patricia McCarthy to testify falsely. He bases his accusation on the building plans referred to above, reasoning that had the prosecution prepared the People’s case more carefully it would have discovered that McCarthy could not possibly have seen what she testified to from the apartment.

Mere conclusory allegations of prosecutorial misconduct are alone insufficient to require a trial court to conduct an evidentiary hearing for the purpose of resolving those accusations. To raise a triable issue some actual evidence of knowledge on the part of the prosecution that McCarthy’s testimony was false must be submitted to the court. Defendant’s pro se motion papers did not even contain the building department records which supposedly contradict McCarthy’s testimony, let alone any evidence tending to demonstrate that the prosecution was aware that McCarthy falsely testified, if indeed she did. No triable issue was raised and, accordingly, it was not an abuse of discretion for the trial court to deny the motion to vacate on this ground without an evidentiary hearing (see People v Ford, 46 NY2d 1021; People v Session, 34 NY2d 254). To hold otherwise and require a hearing to investigate every speculative and unsupported allegation of prosecutorial impropriety would unquestionably impose an undue burden upon both the District Attorney and the judiciary.

Defendant also contends that the courts below erred in not holding a hearing with respect to his allegation that the prosecution withheld exculpatory evidence in violation of his constitutional rights as established by the Supreme Court decision in Brady v Maryland (373 US 83). Defendant supported this claim with an affidavit from Eric Teen (a coconspirator) in which Teen stated that on the date of his arrest he told police officers that he did not know Harold Brown, at which point an audio tape recording of the conversation was stopped. Teen’s affidavit also stated that he never conspired to kill Thomas Wright with Brown or anyone else, and that he never saw Brown until after he (Teen) was arrested. Defendant also relied upon a voluntary disclosure form provided by the Kings County District Attorney’s office to Eric Teen notifying Teen of a tape made on the date of his arrest and offering him the opportunity to inspect it.

After an in camera inspection of the Teen tape as well as a stenographic statement made by Teen to an Assistant District Attorney, the trial court concluded that no exculpatory material had been withheld by the prosecution. Moreover, the court proceeded to describe in some detail how the tape was in fact inculpatory in nature, in that Teen readily identified defendant as a coconspirator in the murder of Thomas Wright. On this record we cannot say that the trial court abused its discretion as a matter of law in relying on in camera inspection of the tape rather than a full hearing to dispose of defendant’s contention. We have sanctioned the use of an in camera inspection procedure to review similar material (see, e.g., People v Geaslen, 54 NY2d 510; People v Andre W., 44 NY2d 179). We find the other contentions raised by defendant to be either not preserved or without merit.

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

Chief Judge Cooke (dissenting). A hearing should have been granted in the trial court on defendant’s motion to set aside his judgment of conviction because of alleged prosecutorial misconduct. I therefore dissent and vote to reverse and remit the case to Supreme Court for such a hearing.

In his pro se motion, defendant alleged that it was physically impossible for an important prosecution witness to have seen events that she described. In an affidavit, he stated that New York City Building Department plans showed that the apartment from which the witness said she had seen the events was located at the rear of an apartment building, rather than at the front as she testified. Defendant alleged that the prosecutor knew that the apartment in question was located at the rear of the building and that he nonetheless permitted the witness to testify that the apartment was located at the front and overlooked the street. At trial the prosecutor introduced photographs of the front of the building as well as of the street.

In response to defendant’s allegations, an Assistant District Attorney who did not conduct the trial submitted an affirmation, based only on information and belief, that did not expressly address the merits of defendant’s contention. Specifically, it did not respond to the allegation concerning the location of the apartment. Moreover, the affirmation failed to deny on the basis of first-hand knowledge that the prosecutor had not knowingly introduced testimony on this point.

Defendant’s moving papers raised a question of fact with respect to a breach of the prosecutor’s obligation not to knowingly introduce false testimony on a material point (see Giglio v United States, 405 US 150). It was, therefore, legal error for the court to have denied defendant’s motion without first conducting a hearing to resolve this question.

Of course, in an application in the nature of coram nobis such as defendant’s, “it is not enough to make conclusory allegations of ultimate facts; supporting evidentiary facts must be provided” (People v Session, 34 NY2d 254, 256). Here there was much more than a mere conclusory allegation that a witness had lied. Defendant’s affidavit stated that building department records indicated that the apartment from which the witness stated she saw the events on the street was designated as “the rear third floor apartment” and that the 14-foot by 12%-foot bedroom had only two windows, both located at the rear of the building.

It is true that the actual building department records would have provided better proof of the location of the apartment. To require defendant, incarcerated in a northern New York prison, to have included the actual New York City Building Department plans in his pro se application for coram nobis relief exalts form over substance. Indeed, the trial court ignored defendant’s request that it obtain the plans itself from the building department for its inspection. The principle that conclusory allegations are insufficient to merit a hearing is based on sound considerations of finality and judicial economy. But defendant’s allegations here were more than a mere speculative and conclusory assertion of prosecutorial misconduct. They were detailed and specific and raised a factual question that the prosecution did nothing to resolve. Contrary to the majority’s position, the level of defendant’s allegations was such that the failure of the People to deny or even address them was indeed significant.

Likewise, defendant’s affidavit was not devoid of any indication that the prosecutor knowingly introduced false testimony. The prosecutor introduced pictures of the front of the apartment building and the street facing it, thereby indicating that a representative of the police or prosecution at least visited the scene to photograph it. The People responded with a mere affirmation by an Assistant District Attorney who did not conduct the trial, based upon information and belief, that the prosecution had no reason to believe the testimony of any witness was false.

Far from a mere conclusory allegation of prosecutorial misconduct, then, defendant alleged specific and detailed facts. That the defendant’s allegations did not rise to the level of “damning evidence” (p 247, n) should not foreclose him from obtaining a hearing on his motion. Therefore, I must dissent.

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

Order affirmed.

       Thus, that the People failed in response to defendant’s motion to deny his allegations regarding the location of the apartment and to deny on the basis of first-hand knowledge that the prosecution did not knowingly introduce false testimony on this point is of no moment. It is not the prosecution’s duty to disprove defendant’s allegations in light of his failure to present any damning evidence, any more than it is its duty when preparing its case to affirmatively search for evidence to impeach its own witness’ testimony.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    In the Matter of Henry Camperlengo, Appellant, v Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued April 2, 1982;
    decided June 10, 1982

      POINTS OF COUNSEL

      Dennis B. Schlenker for appellant.
    I. The information sought by subpoena duces tecum is protected by statutory privilege as provided for in CPLR 4504. (Edington v Mutual Life Ins. Co. of N. Y., 67 NY 185; Westover v Aetna Life Ins. Co., 99 NY 56; Matter of Coddington, 307 NY 181; Anker v Brodnitz, 98 Misc 2d 148; Matter of City Council of City of N. Y. v Goldwater, 284 NY 296; Matter of Investigation of Criminal Abortions in County of Kings [Magelaner], 286 App Div 270, 309 NY 1031; Craig v Boren, 429 US 190; Eisenstadt v Baird, 405 US 438; Sullivan v Little Hunting Park, 396 US 229; Griswold v Connecticut, 381 US 479.) II. Information obtained from the psychotherapist-patient relationship is constitutionally within the right to privacy. (Carey v Population Servs. Int., 431 US 678; Roe v Wade, 410 US 113; Whalen v Roe, 429 US 589; Griswold v Connecticut, 381 US 479; Loving v Virginia, 388 US 1; Skinner v Oklahoma, 316 US 535; Eisenstadt v Baird, 405 US 438; Prince v Massachusetts, 321 US 158; Pierce v Society of Sisters, 268 US 510; Taylor v United States, 222 F2d 398.) III. Disclosure of those requested records in adherence to the subpoena duces tecum is not validated by a compelling State interest. (San Antonio School Dist. v Rodriguez, 411 US 1; Fuentes v Shevin, 407 US 67; Bransburg v Hayes, 408 US 665; Prink v Rockefeller Center, 48 NY2d 309; Roe v Wade, 410 US 113; Doe v Bolton, 410 US 179; Caesar v Mountanos, 542 F2d 1064.) IV. The physician-patient privilege was not waived by petitioner’s patients; public policy neither mandates nor requires waiver of the privilege as condition of participation in the Medicaid program. (Yaron v Yaron, 83 Misc 2d 276; Matter of Sigety v Hynes, 38 NY2d 260; Matter of City Council of City of N. Y. v Goldwater, 284 NY 296.)

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Shirley Adelson Siegel of counsel), for respondents.
    I. The Medicaid monitoring procedures here involved are authorized and required by Federal and State law in furtherance of important public policy, i.e., the prevention of Medicaid fraud and abuse; the CPLR 4504 privilege does not arise. (Lumpkin v Department of Social Servs. of N. Y., 45 NY2d 351, 439 US 1040; Matter of Dunbar v Toia, 45 NY2d 764; Matter of Sigety v Hynes, 38 NY2d 260, 425 US 974; Schaubman v Blum, 49 NY2d 375; Matter of People v Doe, 107 Misc 2d 605; Matter of Schulman v New York City Health & Hosps. Corp., 38 NY2d 234; Matter of Hyman v Jewish Chronic Disease Hosp., 15 NY2d 317.) II. Appellant lacks standing to assert the constitutional rights of others. (Singleton v Wulff, 428 US 106; Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Pharmaceutical Mfrs. Assn. v Whalen, 54 NY2d 486.) III. The right to maintain secrecy with respect to one’s affairs does not extend to Medicaid patient records where, as here, appellant’s patients are protected by the confidentiality constraints to which respondents are subject; this is especially so because there is no support in the record for an assumption that confidentiality provisions will be administered improperly and because the State’s interest in obtaining the information is legitimate. (Whalen v Roe, 429 US 589; People v Onofre, 51 NY2d 476; Plante v Gonzalez, 575 F2d 1119;, 439 US 1129; Nixon v Administrator of Gen. Servs., 433 US 425; Volkman v Miller, 41 NY2d 946; Fadjo v Coon, 633 F2d 1172; Hawaii Psychiatric Soc., Dist. Branch of Amer. Psychiatric Assn. v Ariyoshi, 481 F Supp 1028; Schachter v Whalen, 581 F2d 35; General Motors Corp. v Director of Nat. Inst, for Occupational Safety & Health, Dept. of Health, Educ. & Welfare, 636 F2d 163; du Pont de Nemours & Co. v Finklea, 442 F Supp 821.)
   OPINION OF THE COURT

Chief Judge Cooke.

The physician-patient privilege does not absolutely protect a doctor’s records of treatment of Medicaid patients from a subpoena of the State Department of Social Services issued in an investigation of billing practices. The order of the Appellate Division, therefore, should be affirmed.

Petitioner is a psychiatrist whose patients include a number of Medicaid recipients. The State Department of Social Services discovered that petitioner had submitted consecutive billing dates for certain Medicaid patients. Considering such billing unusual, the department sought access to petitioner’s records to determine if there had been unnecessary treatment or fraud in billing procedures. Petitioner’s co-operation was inadequate and the department eventually issued a subpoena duces tecum requiring petitioner to produce his records concerning 35 Medicaid patients. The subpoena sought: “1) all patient records including, but not limited to treatment plans, periodic evaluations and any other treatment or diagnostic or prognostic records. 2) Any other miscellaneous medical data relating to the patient’s physical or mental condition. 3) Records of any payments by third parties for medical services rendered to the patients.” Petitioner moved pursuant to CPLR 2304 to quash the subpoena. Supreme Court denied the motion and the Appellate Division affirmed (83 AD2d 661).

On this appeal, petitioner asserts that the material sought by the subpoena is protected by the physician-patient privilege set forth in CPLR 4504 (subd [a]). That statute provides that, unless the patient waives the privilege, a physician “shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”

The physician-patient privilege is a purely statutory creation, in derogation of the common-law rule that a physician could be compelled to disclose information acquired in the treatment of a patient (see People v AlKanani, 33 NY2d 260, 264, cert den 417 US 916; Steinberg v New York Life Ins. Co., 263 NY 45, 48; see, generally, Richardson, Evidence [10th ed — Prince], §§ 426-444). First enacted in New York in 1828, the privilege is designed “to protect those who are required to consult physicians from the disclosure of secrets imparted to them; to protect the relationship of patient and physician and to prevent physicians from disclosing information which might result in humiliation, embarrassment, or disgrace to patients” (Steinberg v New York Life Ins. Co., supra, pp 48-49; see, also, Pierson v People, 79 NY 424, 433). This provision of confidentiality encourages the patient to seek medical treatment and to be frank in describing his or her symptoms to the physician so that the most effective treatment can be obtained.

Although the privilege serves an important social function, in certain instances the Legislature has abrogated this privilege to effectuate some other public policy, such as the detection and prevention of child abuse (Family Ct Act, § 1046, subd a, par [vii]) or the treatment of narcotic addiction (Public Health Law, § 3373). The question here is whether and to what extent the State and Federal regulatory provisions of the Medicaid program have also created an exception to the privilege.

The Medicaid program uses public funds to help provide medical services to needy persons. For this program to be carried out effectively, “the public must be assured that the funds which have been set aside for this worthy purpose will not be fraudulently diverted into the hands of an untrustworthy provider of services” (Schaubman v Blum, 49 NY2d 375, 379). To this end, the Medicaid program requires that certain information be made available to those charged with administering the program.

The Federal Government requires that States participating in Medicaid “provide for agreements with every person or institution providing services under the State plan under which such person or institution agrees (A) to keep such records as are necessary fully to disclose the extent of the services provided to individuals receiving assistance under the State plan, and (B) to furnish the State agency or the Secretary with such information, regarding any payments claimed by such person or institution for providing services under the State plan, as the State agency or the Secretary may from time to time request” (US Code, tit 42, § 1396a, subd [a], par [27]). New York State regulations require that such information be kept by Medicaid providers for a minimum of six years after payment and made available to the appropriate agencies (18 NYCRR 540.7 [a] [8]).

Although there is no express statutory exception to the privilege for Medicaid-related records, the Federal and State record-keeping and reporting requirements evidence a clear intention to abrogate the physician-patient privilege to the extent necessary to satisfy the important public interest in seeing that Medicaid funds are properly applied. Of course, this exception to the privilege is intended to be no broader than necessary for effective oversight of the Medicaid program. Thus, the use of information obtained pursuant to the record-keeping requirements is restricted to purposes directly connected with administering the Medicaid program, and disclosure is otherwise prohibited (US Code, tit 42, § 1396a, subd [a], par [7]; Social Services Law, §§ 136, 367-b, subd 4; § 369, subd 3). Continued confidentiality is assured and any adverse impact on the policy underlying the privilege is kept to a minimum.

Petitioner therefore cannot avail himself of the physician-patient privilege with respect to the department’s subpoena of the treatment records of Medicaid patients. Although the exception to the privilege is limited in scope, it is broad enough to permit the department to ascertain whether Medicaid funds are properly applied.

Petitioner also argues that the information sought by the department is protected by the right to privacy embodied in the United States Constitution. This claim was not raised below, however, and therefore should not now be considered by this court (see Tumolillo v Tumolillo, 51 NY2d 790; Di Bella v Di Bella, 47 NY2d 828).

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

       Inasmuch as petitioner abandons on this appeal any claim that the department’s subpoena was overly broad, this court has no occasion to delineate the precise boundaries of the exception.


text:
    In the Matter of Board of Education of Farmingdale Union Free School District, Respondent, v New York State Division of Human Rights, Appellant. Rose A. Burns, Respondent.
    Argued May 14, 1982;
    decided June 10, 1982

      POINTS OF COUNSEL

      Ann Thacher Anderson for appellant.
    I. The Division was correct in reading the complaint to allege and the record to show discrimination in disallowance of seniority credit. II. The Human Rights Law forbids disallowance of seniority credit for services rendered before a forced pregnancy-related resignation. (State Div. of Human Rights v Board of Educ., 46 AD2d 483; State Div. of Human Rights v Bakery & Confectionery Workers Int. Union of Amer., 43 AD2d 814, 34 NY2d 634; Matter of ITT Cont. Baking Co. v New York State Div. of Human Rights, 70 AD2d 779, 48 NY2d 604; Cleveland Bd. of Educ. v La Fleur, 414 US 632; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Union Free School Dist. No. 6 of

      Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371; Board of Educ. v New York State Div. of Human Rights, 42 AD2d 49, 35 NY2d 673; Skinner v Oklahoma, 316 US 535; Turner v Department of Employment Security, 423 US 44; Nashville Gas. Co. v Satty, 434 US 136.) III. The complaint is timely.

      Robert E. Penn for Rose A. Burns, respondent.
    The regulation itself and the actions of the Board were discriminatory.

      Kendrick C. Smith for Board of Education of Farmingdale Union Free School District, respondent.
    I. Section 296 of the Human Rights Law is inapplicable to the alleged sex discrimination concerning complainant’s preresignation service rendered from September, 1956 to January, 1959. (Matter of Queensborough Community Coll. of City Univ. of N. Y. v State Human Rights Appeal Bd., 41 NY2d 926; Flaum v Board of Educ., 450 F Supp 191.) II. The complaint was untimely pursuant to the one-year Statute of Limitations. (Board of Educ. v New York State Div. of Human Rights, 44 NY2d 902.)
   OPINION OF THE COURT

Chief Judge Cooke.

The question here is whether a seniority system can be found to discriminate now against a woman when, in computing seniority, it disregards all service rendered prior to a resignation compelled because of pregnancy, notwithstanding that the Human Rights Law did not prohibit sex-based discrimination when the pregnancy-related resignation was originally demanded. Such a system can be found to be discriminatory.

Complainant Rose Burns was first hired in September, 1956 by respondent Board of Education of Farmingdale Union Free School District (Board) on probationary status as an elementary classroom teacher. She remained in that position until January 31, 1959, at which time she resigned under a Board regulation requiring the resignation of pregnant nontenured teachers. She was told that the resignation would not affect her return to work. In March, 1963, the Board approved complainant’s return, subject to a three-year probationary period. At that time, complainant was credited toward tenure and salary with the two and one-half years of service accrued prior to her forced resignation. Complainant worked continuously as a permanent teacher until 1978, except for unpaid maternity leaves between 1964 and 1971. The forced resignation policy was rescinded in May, 1975.

In 1976, the Board negotiated a collective bargaining agreement that eliminated a job security clause present in previous contracts. Apparently anticipating layoffs, the Board prepared a seniority list of all teaching personnel. In April, 1978, complainant first learned of the list and her place on it, and immediately questioned the computation of her seniority as she had been denied credit for her preresignation service. Complainant was informed that the Board’s practice for all personnel was to disallow preresignation service for . credit toward seniority. Complainant promptly filed a complaint with the State Division of Human Rights (Division) in May, 1978.

Following a hearing, the Division sustained the complaint. Specifically, the Division found that the prior forced resignation policy was discriminatory and that complainant’s seniority status was a direct product of that policy. The Division further found that the seniority list in 1978 continued the enforcement of a prior discriminatory practice and was intended to disadvantage complainant currently because of her sex. The Division ordered the Board to revise the seniority list to include credit for complainant’s preresignation service. The State Human Rights Appeal Board affirmed the Division’s decision and order.

The board of education thereafter instituted a review proceeding in the Appellate Division pursuant to section 298 of the Executive Law. The Appellate Division granted the petition and annulled the determination (82 AD2d 883). In that court’s view, the discriminatory act complained of was the forced resignation policy of which complainant was a victim in 1959. As such, the complaint was time barred. On the appeal to this court, there should be a reversal.

It is true that complainant’s forced resignation in 1959 cannot itself form the basis of a complaint under the Human Rights Law. Section 296 of the Executive Law first proscribed discrimination based on sex by amendment only in 1965 (L 1965, ch 516). Additionally, the complaint was time barred, having been filed well over one year after the alleged discriminatory act of forcing resignation because of pregnancy (see Executive Law, § 297, subd 5; State Div. of Human Rights [Williams] v Burroughs Corp., 52 NY2d 748; Matter of Queensborough Community Coll. of City Univ. of N. Y. v State Human Rights Appeal Bd., 41 NY2d 926). The Appellate Division therefore correctly determined that application of the forced resignation policy in 1959 is not now actionable. That determination, however, does not end the inquiry.

The Division maintains that the seniority system first developed after the 1976 collective bargaining agreement constitutes a discrete act upon which a discrimination complaint can be based. Initially, it should be noted that in reviewing a determination of the Division, a court generally is not free to substitute its judgment for that of the Division. As this court has recognized, “the division’s expertise in evaluating discrimination claims and formulating appropriate remedies may not be lightly disregarded in view of its wide discretion, legislatively endowed, to weigh and assess the conduct of the parties and to reach conclusions based on what is fairly inferable from the facts” (State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276,284). Giving due deference to the body charged with enforcing this State’s antidiscrimination laws, it cannot be said that the Division erroneously determined that the seniority system currently disadvantages complainant because of her sex.

As the Division argues, the practice it found discriminatory is not the forced resignation itself, but the disallowance of seniority credit for service preceding a resignation compelled because of pregnancy. The seniority system devised by the Board purports to treat all teaching personnel equally, disallowing credit for service preceding any resignation. The system, however, does not take into account the only resignation that was forced — that of a pregnant nontenured teacher. The system thus imposes a distinct burden on a woman who became pregnant during service (cf. Nashville Gas Co. v Satty, 434 US 136), effectively penalizing her again for her prior pregnancy. The facially neutral system cannot mask the unfavorable employment consequences attendant only upon pregnancy. The discrimination at its base need not go uncorrected.

Respondent Board cannot avoid the determination of discrimination by characterizing the loss of seniority as only the latent effect of the 1959 forced resignation. Complainant felt the effect of the resignation policy in 1959 when she was forced to resign. As noted, that policy did not then violate a statutory proscription and a complaint thereon is untimely. The complaint, however, also seeks to redress a distinct discriminatory wrong first perpetrated and felt when a new seniority system was devised. The Board’s system effectively revived the policy and constituted a separate discriminatory act — loss of seniority.

Similarly unpersuasive is the Board argument that the loss of seniority occurred upon resignation and thus was actionable only then. The record does not support this assertion or the claim that complainant knew or should have known in 1963 that her preresignation service would not be credited for seniority. At the time of her resignation, complainant was told that her return to employment would be unaffected. When she did return in 1963, her preresignation service in fact was recognized for purposes of tenure (which she attained in October, 1963) and of salary computation — the only benefits then available for which past service might have been given credit. When benefits associated with seniority first became available in 1977 (with the elimination of the job security clause from the collective' bargaining agreement), the failure then to give compensable credit for purposes of seniority benefits to complainant’s preresignation service afforded support for a finding of discrimination based on sex in 1977. It was not until April, 1978 that complainant first learned of the newly prepared seniority list disallowing credit for preresignation service. Having been filed in May, 1978, the complaint was timely.

Inasmuch as the complaint challenging the Board’s seniority system was authorized by the Human Rights Law and was timely filed, there is no basis for holding that the Division improperly exercised jurisdiction over the complaint. That being the only ground of the challenge in this court, and there being substantial evidence to support the finding of discrimination, the Division’s determination should be upheld.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the determination of the State Human Rights Appeal Board reinstated.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.


author: Gabrielli, J.

text:
    In the Matter of the Arbitration between Daniel Matarasso et al., Appellants, and Continental Casualty Company, Respondent.
    Argued May 7, 1982;
    decided June 10, 1982

      POINTS OF COUNSEL

      Bertram Herman and Norman Perlman for appellants.
    I. Failure to apply to the court to stay the arbitration within the 20-day statutory period should have barred respondent. (Matter of Jonathan Logan, Inc. [Stillwater Worsted Mills], 24 NY2d 898; Aetna Life & Cas. Co. v Stekardis, 34 NY2d 182; Matter of Spychalski v Continental Ins. Co., 45 NY2d 847.) II. Respondent’s automobile liability insurance policy had impressed upon it the statutorily promulgated uninsured motorist indorsement.

      Robert J. Ellsworth for respondent.
    I. The umbrella insurance policy contained no uninsured motorist protection and arbitration agreement either by reference to underlying policies or by operation of law. (State-Wide Ins. Co. v Curry, 43 NY2d 298; McCarthy v MVAIC, 16 AD2d 35, 12 NY2d 922.) II. A motion to stay arbitration made pursuant to CPLR 7503 (subd [c]) but beyond the specified time period is not barred where the movant was not a party to an agreement to arbitrate. (Glasser v Price, 35 AD2d 98.)
   OPINION OF THE COURT

Gabrielli, J.

The question presented on this appeal is whether a motion to stay arbitration may ever properly be entertained outside the 20-day period specified in CPLR 7503 (subd [c]). We hold today that such a motion may be entertained when, as here, its basis is that the parties never agreed to arbitrate, as distinct from situations in which there is an arbitration agreement which is nevertheless claimed to be invalid or unenforceable because its conditions have not been complied with.

Claimants were injured in an automobile accident involving an uninsured motor vehicle. They recovered the maximum benefits allowable under the uninsured motorist indorsement contained in their primary automobile liability insurance policy. Claimants then sought to recover their excess damages under a “Commercial Umbrella Liability Policy” issued by respondent. This policy provides coverage to Daniel Matarasso (one of the claimants) and A. Matarasso & Co., Inc., for general liability, automobile liability and employer liability over and above the limits of similar coverage contained in several underlying policies issued by other insurers. One such underlying policy is the automobile liability policy under which claimants had already recovered uninsured motorist benefits.

A demand for arbitration was served upon the respondent insurer on August 21, 1980, asserting a claim for uninsured motorist damages under the umbrella policy. Approximately two months later, respondent moved to stay arbitration on the ground that it was not a party to any agreement providing uninsured motorist protection or requiring arbitration of such claims. Claimants asserted, in opposition to the motion, the bar of CPLR 7503 (subd [c]), contending that respondent’s failure to move for a stay of arbitration within the 20-day period set forth in the statute precluded the granting of a stay.

Special Term granted respondent’s motion to stay arbitration. The Appellate Division unanimously affirmed (82 AD2d 861). We granted claimants’ application for leave to appeal to this court, and we now affirm.

CPLR 7503 (subd [c]) provides that a party upon whom a proper notice of intention to arbitrate has been served must apply to stay arbitration within 20 days of service of the notice. If a party fails to make a timely application, “he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with”. It is undisputed that, in the present case, respondent was served with a proper notice of intention to arbitrate, but failed to move to stay arbitration until approximately 60 days had passed. Claimants argue that the failure to make the motion within the statutory 20-day period absolutely bars respondent from obtaining a stay. We disagree and hold that where the application for a stay is made on the ground that no agreement to arbitrate exists, it may be entertained notwithstanding the fact that the stay was sought after the 20-day period had elapsed.

Generally, where the parties have entered into an agreement to arbitrate their disputes, and the party desiring arbitration has served a proper notice of intention to arbitrate, the party seeking to avoid arbitration on the ground that the agreement is invalid or has not been complied with, must, under the statute’s clear language, seek a stay of arbitration within 20 days of service. The courts have no discretion to extend this time period to permit consideration of an untimely application (Aetna Life & Cas. Co. v Stekardis, 34 NY2d 182). However, this rule barring judicial intrusion into the arbitral process operates only when an agreement to arbitrate exists. Support for this view can be found in the wording of the statute itself. CPLR 7503 (subd [c]) speaks in terms of “parties” (e.g., “A party may serve upon another party” [emphasis supplied]), the natural connotation being that the statute is directed toward parties to an agreement to arbitrate {Glasser v Price, 35 AD2d 98). Given the ease with which a broader class of persons could have been included within the statute’s ambit, we cannot impute to the Legislature an intent to bind persons to the arbitral process by their mere inaction for 20 days where no agreement to arbitrate has ever been made.

Thus, if there is no agreement to arbitrate between claimants and respondent, the motion to stay arbitration was properly granted. In this connection, we note that the umbrella policy itself contains no provision for arbitration of disputes. Further, the incorporation of the underlying automobile liablity policy did not extend to the provisions for uninsured motorist coverage (and arbitration of claims arising thereunder), as the umbrella policy covers only liability of the insureds for damages owing third parties.

Claimants argue, however, that the uninsured motorist indorsement is included in the policy by virtue of subdivision 2-a of section 167 of the Insurance Law. That statute applies to any automobile liability policy issued upon a motor vehicle principally garaged or used in this State, and requires the inclusion of uninsured motorist coverage in every such policy. The umbrella policy involved herein, however, is not an automobile liability policy; rather, it is an excess liability policy providing additional coverage for claims arising under three separate policies of varying types of insurance. Therefore, the mandatory uninsured motorist indorsement of section 167 has no application to this policy.

As claimants have failed to establish that any agreement to arbitrate has been entered into by themselves and respondent, the motion for a stay of arbitration was properly granted.

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

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

Order affirmed.

       Our holding in Matter of Lane (Abel-Bey) (50 NY2d 864) is not to the contrary, inasmuch as there, an agreement to arbitrate did exist among the shareholders of a corporation. In that situation, the question of whether the corporation was bound by its shareholders’ arbitration agreement, even though the corporation had not executed the agreement, could not properly be considered on an untimely motion to stay arbitration.


author: Jones, J. Chief Judge Cooke

text:
    The People of the State of New York, Respondent, v Alfred Michael Coleman, Appellant.
    Argued March 25, 1982;
    decided June 15, 1982

      POINTS OF COUNSEL

      David L. Glass for appellant.
    I. The court below erred in refusing to consider the merits of defendant’s objection to the constitutionality of a search of his property. (People v Mills, 18 AD2d 960; Miranda v Arizona, 384 US 436; People v Tutt, 38 NY2d 1011; People v De Bour, 40 NY2d 210; People v De Renzzio, 19 NY2d 45; United States ex rel. Vanderhorst v La Vallee, 417 F2d 411, cert den sub nom. McMann v Vanderhorst, 397 US 925; Volpicelli v Salamack, 447 F Supp, 578 F2d 1372; United States ex rel. Irons v Montanye, 520 F2d 646; United States v Cuomo, 479 F2d 688, cert den sub nom. Rizzo v United States, 414 US 1002; People v Danziger, 41 NY2d 1092.) II. The search of defendant’s property violated Fourth Amendment prohibitions against unreasonable searches; therefore, items seized and secondary evidence obtained should not have been admitted into evidence at trial. (United States v Jeffers, 342 US 48; Schneckloth v Bustamonte, 412 US 218; Bumper v North Carolina, 391 US 543; People v Kuhn, 33 NY2d 203; Katz v United States, 389 US 347; Coolidge v New Hampshire, 403 US 443; Chimel v California, 395 US 752; People v Abruzzi, 52 AD2d 499, 42 NY2d 813; Harris v United States, 390 US 234; People v Armour, 46 AD2d 872.) III. The court below erred in holding that the trial court’s erroneous admission of testimony regarding certain publications was harmless error. (People v Sorge, 301 NY 198; People v Jones, 62 AD2d 356; Kingsley Pictures Corp. v Regents, 360 US 684; Henley v Wise, 303 F Supp 62; People v Crimmins, 36 NY2d 230.)

      Patrick Henry, District Attorney (Charles M. Newell of counsel), for respondent.
    I. The court below correctly concluded that appellant failed to preserve the issue of the warrantless entry onto the railroad siding for review. (People v Tutt, 38 NY2d 1011; People v Danziger, 41 NY2d 1092; People v Ross, 21 NY2d 258; People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; People v McLucas, 15 NY2d 167; Katz v United States, 389 US 347; Sibron v New York, 392 US 40; People v Perel, 34 NY2d 462; Coolidge u New Hampshire, 403 US 443; People v Farenga, 42 NY2d 1092.) II. The scope of the cross-examination of appellant was properly within the discretion of the trial court and, alternatively, any error was harmless. (People v Sorge, 301 NY 198; People v Mackey, 49 NY2d 274; People v Duffy, 36 NY2d 258; People v Malkin, 250 NY 185; People v Capuano, 15 AD2d 400; People v Fritz, 279 App Div 1020; Gitlow v New York, 268 US 652; East Meadow Community Concert Assn. v Board of Educ., 18 NY2d 129, 26 AD2d 819, 19 NY2d 605; Thompson v Wallin, 301 NY 476, affd sub nom. Adler v Board of Educ., 342 US 485; Fox v Washington, 236 US 273.)
   OPINION OF THE COURT

Jones, J.

It was not error for the trial court to allow the prosecutor to impeach defendant’s credibility as a witness by use of pamphlets the publication of which was attributable to defendant and which advocated the evasion of all sales taxes and the cheating of the telephone company.

Defendant appeals from a conviction, on a jury verdict, of the misdemeanor of criminal possession of stolen property (Penal Law, § 165.50). The conviction arose from defendant’s alleged possession of a recently stolen Hobart generator found coupled to an antique railway car owned and in the process of being restored by a corporation of which defendant was the principal shareholder. When discovered by the police, the generator had just recently been painted red and its identification plate removed. A contemporaneous search of the railway car (now asserted to have been unauthorized) revealed a can of red paint and the missing identification plate.

On trial, defendant claimed no involvement in or knowledge of the theft of the generator. He testified that it had merely “turned up” one day, apparently, he then assumed, through the efforts of an underling who was aware of defendant’s need for such a machine. In an effort to impeach his credibility, the People cross-examined defendant about and subsequently introduced in evidence two pamphlets published three years earlier by a corporation of which defendant had been an incorporator and was administrative officer, a director and a shareholder. Counsel for defendant raised timely objections, both on the ground of remoteness and on the ground that publication of the pamphlets was not an immoral, vicious, or criminal act and therefore their use for impeachment purposes was impermissible. The judgment of conviction was unanimously affirmed at the Appellate Division (81 AD2d 869).

It was not error here to have permitted the prosecutor on cross-examination to seek to impeach defendant’s credibility as a witness by use of the two pamphlets. The pamphlets in question contained advice and advocacy responsive to their titles, “End Paying Sales Taxes Forever For Everything You Buy” and “How to Beat the Telephone System”. The latter publication, for instance, offered detailed instructions as to how to cheat the telephone company by the use of slugs and fictitious names and suggested several means to frustrate collection of telephone bills. Defendant conceded that he had published the pamphlets through his corporation. That the pamphlets quoted from the writings of other authors is immaterial; there was no suggestion or contention that defendant was not fully aware of the contents of the pamphlets in advance of their publication.

The determination of what evidence may be introduced for purposes of impeachment lies within the sound discretion of the trial court. Notwithstanding that the proof may be said to fall outside the conventional category of immoral, vicious or criminal acts, where, as here, the evidence offered by the People on cross-examination of the defendant “significantly revealed a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society, proof thereof may be relevant to suggest his readiness to do so again on the witness stand” (People v Sandoval, 34 NY2d 371, 377). By way of analogy it may be suggested that summary rejection would greet any assertion that examining counsel could not use for impeachment purposes writings, properly attributed to the witness, which advocated perjury on the witness stand (concededly more exaggerated in degree but similar in kind to the advocacy in the pamphlets in this case). So here, it was not error in the circumstances of this case for the trial court to conclude that the evidence introduced was both' relevant and material to the credibility, veracity and honesty of defendant.

The trial court carefully instructed the jury both as to the necessity for a preliminary finding of attribution of the pamphlets to defendant and then as to the restricted purpose for which the evidence could be considered: “[I]f you in fact do find that this conduct is attributable to the defendant, it cannot be considered by you in determining whether the defendant has committed the crime he has been accused of and is being tried before you. It may, however, be considered by you in determining whether his testimony or any part is credible or not. You cannot consider it for any other purpose.”

Defendant also contends that the physical evidence introduced at his trial (the Hobart generator, the can of red paint and the identification plate) was discovered and seized by the police during a warrantless entry on and search of the real property used and occupied by him in connection with his hobby of restoring antique railway cars and should accordingly have been suppressed. Inasmuch, however, as defendant failed to raise this contention on his pretrial motion to suppress (which was based solely on the lack of authority of the individual who granted the police permission to enter the railway car), as the Appellate Division observed, the issue has not been preserved for appellate review (cf. People v Danziger, 41 NY2d 1092).

For the reasons stated, the order of the Appellate Division should be affirmed.

Chief Judge Cooke

(concurring). Although I concur with the majority’s result in this case, I cannot agree that it was proper to permit the introduction of the pamphlets to impeach the witness.

In People v Sandoval (34 NY2d 371, 373), this court held that a defendant may be impeached by referring to his or her “prior specific criminal, vicious and immoral acts”. While this is stated in the disjunctive elsewhere in that opinion, it has generally been applied by admitting evidence of only criminal acts.

Under today’s decision, however, this situation will no longer obtain. The State is usurped of its power to define through the Penal Law what conduct evidences the improper placing of one’s own interest before that of society. Instead, a single Judge, according to his or her predilections, is to determine in the exercise of his or her discretion what acts are improper and thus may be raised for impeachment, regardless of whether they are criminal or vicious or immoral. Under this standard, the business owner or manager who is not meticulous in maintaining the account books and unintentionally writes a few checks with insufficient funds may be impeached by those acts. So, too, would the individual who ventures onto city streets without a face mask while ill with influenza. The editors of our State’s large publishing houses should beware lest they become subject to impeachment by reason of publishing political works unsavory to some Trial Judge.

In short, there is no justification for a noncriminal act that is not itself vicious or immoral to be admissible for impeachment purposes. In any event, even if noncriminal publication could be considered for impeachment purposes, neither the fact of publication nor the material published should be admitted unless each is relevant to the issue of credibility. At a minimum, there should be evidence showing that the witness has adopted the views stated. There was no such evidence here. The only evidence on the record that might attribute the pamphlets’ contents to the defendant was his admission that his advertising copywriter had praised the pamphlets’ contents. Under the majority’s reasoning, a publisher will be wise in the future to affirmatively express disagreement with the substance of his or her publications.

There being nothing immoral, vicious, or criminal here about the publication of the pamphlets nor any proof that defendant adopted the statements therein, they should not have been admitted for impeachment. In light of the overwhelming evidence of defendant’s guilt, however, the error should be considered harmless. I therefore concur in affirming the order of the Appellate Division.

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

Order affirmed.

       We have no occasion to consider the argument defendant now advances that the use of these pamphlets for impeachment purposes somehow violated his rights under the First Amendment to the Federal Constitution. This issue, not having been raised on trial, has not been preserved for appellate review, and we accordingly express no opinion with respect to its merit (cf. People v Liccione, 50 NY2d 850). Nor is this writing to be interpreted to suggest approval of any of the hypothetical impeachments envisioned in the concurring opinion. We address only the narrow issue presented in this case.

       There is no occasion here to discuss the First Amendment implications of the majority’s holding, inasmuch as defendant did not object on that ground.


author: Meyer, J.

text:
    Cloud Rich, Appellant, v Albert M. Lefkovits, Respondent, et al., Defendant.
    Argued May 7, 1982;
    decided June 10, 1982

      POINTS OF COUNSEL

      Michael C. Wimpfheimer and Henry Wimpfheimer for appellant.
    I. Special Term erred in entertaining defendant Lefkovits’ motion which was untimely due both to (a) CPLR 3211 (subd [e]) and (b) defendant’s waiver of its right to move based upon its stipulation. (Venizelos v Venizelos,
      30 AD2d 856.) II. Defendant Lefkovits waived objection to personal jurisdiction herein. (Glenesk v Guidance Realty Corp., 36 AD2d 852; MacIver v George Braziller, Inc., 32 Misc 2d 477; Morgenstern v Cohon, 2 NY2d 302; Walden v Thagard, 67 AD2d 973.) III. The court below erred in granting defendant’s motion under the circumstances. (Gilbert v Lehman, 73 AD2d 793; Newell v Lane, 45 AD2d 704.)

      Bruce F. Gilpatrick and Alfred C. Moran for respondent.
    I. Personal jurisdiction has never been acquired over defendant-respondent since neither “nail and mail” service pursuant to CPLR 308 (subd 4) nor service of any sort was ever effectuated. (Chalk v Catholic Med. Center of Brooklyn & Queens, 58 AD2d 822; Feinstein v Bergner, 62 AD2d 1049, 48 NY2d 234; Competello v Giordano, 71 AD2d 871, 74 AD2d 618, 51 NY2d 904; Barnes v City of New York, 70 AD2d 580, 48 NY2d 630.) II. Defendant-respondent, having properly raised in his answer the affirmative defense that the court lacks jurisdiction, over his person, Special Term’s dismissal of this action was proper. (Immediate v St. John’s Queens Hosp., 48 NY2d 671; General Precision v Ametek, Inc., 45 Misc 2d 451, 24 AD2d 757; Becker v Lesnick, 96 Misc 2d 819.) III. There are no circumstances extant from the pleadings or elsewhere in the record warranting a reversal of Special Term’s dismissal of this action and the affirmance of that dismissal by the court below. (Polizzano v Gotham Constr. Corp., 47 AD2d 48.)
   OPINION OF THE COURT

Meyer, J.

Defendant’s defense that improper substituted service deprived the court of jurisdiction over his person was not waived by the form of the affirmative defense. Nor was defendant’s right to move to dismiss the complaint for lack of jurisdiction waived by a stipulation which extended defendant’s time to answer but made no reference to his right to move with respect to the complaint. However, defendant’s motion to dismiss pursuant to CPLR 3211 (subd [a], par 8), made after answer, should have been treated as a motion for summary judgment, and pursuant to CPLR 3211 (subd [c]) plaintiff should have been given notice that it would be so treated. Because on the record properly before us it cannot be said that there is no dispute as to the facts or that plaintiff was not prejudiced by the failure to notify him that the motion would be considered as one for summary judgment, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, New York County, for reconsideration after such notice.

The action is one for malpractice against a physician and in product liability against the manufacturer of the drug prescribed by the physician. Only the physician is involved in this appeal. Service upon him was purportedly made pursuant to CPLR 308 (subd 4) after due diligence in attempting to serve him personally, by affixing the summons and complaint to the door of his office and mailing a copy of each to him at “his last known residence.” The flaws in service raised by defendant’s motion arise from the fact that the mailed copy was sent to the same address to which the “nailed” copy was affixed which, it is alleged, is not and never has been the physician’s residence, and from the contention that due diligence was not demonstrated. These deficiencies were brought to the court’s attention not by motion prior to answer addressed to the complaint, as CPLR 3211 (subd [a], par 8) authorizes, but by affirmative defense asserted in the answer, after a stipulation extending defendant’s time “to appear and answer.” The defense asserted was that “The court does not have jurisdiction of the person of defendant because defendant was not personally served with a copy of the summons and complaint.” Though the answer was served on May 3, 1978, it was not until February, 1980 that, by motion returnable March 14, 1980 and stating that it was made pursuant to CPLR 3211 (subd [a]), defendant moved to dismiss. By that time plaintiff had noticed defendant for examination before trial, the examination had several times been adjourned and plaintiff’s time to begin an action by proper service had expired. Plaintiff argues, therefore, that defendant is in any event estopped from pressing his defense of absence of jurisdiction.

Plaintiff’s waiver arguments do not withstand analysis. The stipulation extending defendant’s time to answer necessarily accorded him the right to interpose the defense of lack of personal jurisdiction in his answer (CPLR 3211, subd [e]). Because the absence from the stipulation of any reference to moving against the complaint does not waive defendant’s right to raise the jurisdictional defense by motion before answer (Santos v Chappell, 63 Mise 2d 730; Siegel, New York Practice, § 272, p 330), it clearly does not waive the right to move after joinder of issue accorded by CPLR 3212. In any event, the fact that the motion as made recited CPLR 3211 rather than 3212 as its basis would constitute a mere irregularity which under CPLR 2001 should be disregarded, the more so in view of the conclusion hereafter reached with respect to the notice requirement of CPLR 3211 (subd [c]).

Nor did the form of the affirmative defense constitute a forfeiture of the right to assert it. Plaintiff’s contention that it did is predicated on Walden v Thagard (67 AD2d 973). Walden held a defense of lack of jurisdiction “‘by reason of failure to serve summons on [defendant] in accordance with the provisions of statute ’ ” to be a waiver because it did not fairly apprise plaintiff of the actual objection, which was that the order of attachment was served after rather than before the summons and complaint was served outside the State (cf. CPLR 314, subd 3). It reached that conclusion in reliance upon the requirement of CPLR 3018 that “matters which if not pleaded would be likely to take the adverse party by surprise” be pleaded as affirmative defenses. CPLR 3018 goes to the subject matter of the defense (lack of personal jurisdiction) rather than to the particularity with which the defense is pleaded. The form as distinct from the subject of a responsive pleading is governed by CPLR 3013.

The latter provision, so far as pertinent, requires only sufficient particularity “to give the court and the parties notice of * * * the material elements of each * * * defense.” Although the defense would more clearly have alerted plaintiff to the defect relied upon had it added the words “and substituted service was not properly effected,” the absence of those words should not, for several reasons, be held to forfeit the defense. First, because service may be made either personally or by substituted service, a defense that the court lacks personal jurisdiction because defendant was not personally served necessarily implies that proper substituted service was not made, the more so in light of the fact that the only affidavit of service filed by plaintiff was of substituted service. Second, plaintiff was not without the means of ascertaining what the claimed defect in service was: by a motion under CPLR 3024 (subd [a]) for a more definite statement of the defense; by demand for defendant’s present address pursuant to CPLR 3118 followed by a motion to strike the defense if defendant failed to respond within the allotted 10 days (CPLR 3124, 3126); by service of appropriate interrogatories (CPLR 3131); by deposition (CPLR 3106); or by motion to dismiss the defense for lack of merit or for insufficiency (CPLR 3211, subd [b]). Third, CPLR 3013 was intended, together with CPLR 3026, to move pleadings away from the rigid formalism of prior case law and give the pleader, inartistic though his product may have been, the benefit of whatever can fairly be gathered from the pleading (Foley v D’Agostino, 21 AD2d 60, 65; see Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 284 [Cooke, J., concurring]; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3013.03). Plaintiff would be indeed hard put to show that he had been prejudiced under the circumstances of this case by the wording of the affirmative defense, especially since there remained almost two years after service of the answer, before the expiration of the Statute of Limitations, during which service could have been made upon defendant in person.

It was, however, error to consider the motion, made under CPLR 3211 long after joinder of issue, without giving “adequate notice to the parties” as required by subdivision (c) of that section, that the motion would be treated as one for summary judgment. True, there is no specific language in CPLR 3211 (subd [e]) that proscribes a motion such as the present one after answer provided only that no prior 3211 motion has been made, and both CPLR 3211 and 3212 contain provisions authorizing denial, continuance or disclosure if it appears that facts are unavailable to the opposing party (CPLR 3211, subd [d]; 3212, subd [f]) and authorizing immediate trial of issues of fact raised on the motion (CPLR 3211, subd [c]; 3212, subd [c]). But we think it implicit in CPLR 3212 (subd [c]), with its specific reference to a motion based on CPLR 3211 (subd [a]) grounds, CPLR 3212 (subd [a]) with its reference to a motion “after issue has been joined” and CPLR 3211 (subd [e]), the first sentence of which speaks to a motion “before service of the responsive pleading” and mandates that “no more than one such motion shall be permitted,” and the fourth sentence of which preserves a paragraph 8 ground for dismissal not made by objection under subdivision (a) only if the objection is raised in the responsive pleading, that a motion made under the latter circumstances is to be considered as one for summary judgment under CPLR 3212 rather than as one for dismissal under CPLR 3211 (Connell v Hayden, 83 AD2d 30, 32). The difference is subtle but important. As we emphasized in Rovello v Orofino Realty Co. (40 NY2d 633, 635), “CPLR 3211 allows plaintiff to submit affidavits, but it does not oblige him to do so on penalty of dismissal, as is the case under CPLR 3212”, and as the Judicial Conference pointed out in recommending the 1973 amendment requiring notice that the motion will be considered as one for summary judgment, “the interests of justice” are served when “an appropriate record and submission of the facts * * * [is] made by the parties” (Nineteenth Ann Report of NY Judicial Conference, 1974, p A62). Requiring that a motion addressed to lack of personal jurisdiction made after answer pleading that lack as an affirmative defense be made by motion specifying that it is made under CPLR 3212 or, if made under 3211, that the parties be given notice that the court will consider it as a 3212 motion reduces the possibility of gamesmanship, while at the same time permitting the court to deal with the issue in the most efficient manner by directing immediate trial of any factual issues underlying the jurisdictional question. Thus, we answer in the affirmative the question left open in Wahrhaftig v Space Design Group (29 AD2d 699, 700) concerning whether defendant may move after answer for summary judgment on his jurisdictional defense (accord Connell v Hayden, 83 AD2d 30, 32, supra) and decline to adopt the reasoning of Salerno u Kearney (87 Misc 2d 995).

It is necessary to add only that this is not a case such as O’Hara v Del Bello (47 NY2d 363) in which we held CPLR 3211 (subd [c]) notice unnecessary because the sole issue was one of statutory construction and no prejudice from the omission of notice had been shown. The salutary purpose of the 1973 amendment would be nullified were the notice requirement lightly to be ignored (see Rubin v Rubin, 72 AD2d 536; Shah v New York Foundling Hosp., 69 AD2d 899). It may well be that on reconsideration as a motion for summary judgment defendant will again succeed, for the question appears to turn on whether defendant used his office as a residence, but we cannot say that plaintiff was not prejudiced by the failure to receive notice or that the issue is one of law alone.

In view of the conclusion reached, we need not consider the questions concerning what defendant’s “last known residence” was, whether the process server acted with due diligence before attempting substituted service (on which the courts below made no findings), or plaintiff’s estoppel argument.

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

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

Order reversed, etc.


author: Per Curiam.

text:
    Mario Andretti, Respondent, v Rolex Watch U.S.A., Inc., et al., Appellants.
    Argued May 12, 1982;
    decided June 15, 1982

      POINTS OF COUNSEL

      Robert M. Callagy and George L. Mahoney for appellants.
    I. Formal recognition of the right of publicity and its proper application to the facts of this case require a finding that Andretti does not have standing to maintain this action. (Roberson v Rochester Folding Box Co., 171 NY 538; Haelan Labs. v Topps Chewing Gum, 202 F2d 866, 346 US 816; Koussevitzky v Allen, Towne & Heath, 188 Misc 479, 272 App Div 759; Gautier v Pro-Football, Inc., 278 App Div 431, 304 NY 354; Wood v Lucy, Lady Duff-Gordon, 222 NY 88; Madison Sq. Garden Corp. v Universal Pictures Co., 255 App Div 459; Zacchini v Scripps-Howard Broadcasting Co., 433 US 562; Time, Inc. v Hill, 385 US 374; Brinkley v Casablancas, 80 AD2d 428.) II. It was error to grant Andretti’s motion for partial summary judgment as to defendants’ alleged liability. (McAdam v Ridge Press, 57 AD2d 763; Manger v Kree Inst. of Electrolysis, 233 F2d 5; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 27 NY2d 410; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395.)

      Alfred S. Julien and William D. Fireman for respondent.
    I. The court below correctly held that infringement of Andretti’s “right of publicity” is actionable under section 51 of the Civil Rights Law. (Brinkley v Casablancas, 80 AD2d 428; Gautier v Pro-Football, Inc., 304 NY 354; Haelan Labs. v Topps Chewing Gum, 202 F2d 866, 346 US 816; Ali v Playgirl, Inc., 447 F Supp 723; Grant v Esquire, Inc., 367 F Supp 876; Rosenberg v Lee’s Carpet & Furniture Warehouse Outlet, 80 Misc 2d 479; Rosemont Enterprises v Urban Systems, 72 Misc 2d 788, 42 AD2d 544; Time, Inc. v Hill, 385 US 374; Booth v Curtis Pub. Co., 15 AD2d 343,11 NY2d 907; Ladany v Morrow & Co., 465 F Supp 870.) II. Andretti has standing to maintain this action. (Rosemont Enterprises v Urban Systems, 72 Misc 2d 788,42 AD2d 544; Yameta Co. v Capitol Records, 279 F Supp 582.) III. The court below properly held that consent under section 51 of the Civil Rights Law must be in writing and that the photograph autographed by Andretti did not constitute such written consent. (Durgom v Columbia Broadcasting System, 29 Misc 2d 394; Miles v Sears, Roebuck & Co., 61 AD2d 929; Lomax v New Broadcasting Co., 18 AD2d 229.) IV. Statute of Frauds principles are applicable; because the inscribed photograph is insufficient on its face as a written consent, it cannot be supplemented by parol evidence. (Felicie, Inc. v Leibovitz, 67 AD2d 656; Crabtree v Elizabeth Arden Sales Corp., 305 NY 48; Cohon & Co. v Russell, 29 AD2d 221, 23 NY2d 569; Matter of Levin, 302 NY 535; Drake v Seaman, 97 NY 230; Poel v Brunswick-Balke-Collender Co. of N. Y., 216 NY 310; Dorman v Cohen, 66 AD2d 411; Lauter v W & J. Sloane, 417 F Supp 252; Mentz v Newwitter, 122 NY 491; Kobre v Instrument Systems Corp., 54 AD2d 625, 43 NY2d 862.)
   OPINION OF THE COURT

Per Curiam.

This dispute arises out of the 1979 publication of two watch advertisements placed by defendant Rolex Watch U.S.A., Inc. The advertisements contained the name and picture of plaintiff, a well-known race car driver. Plaintiff sought recovery under section 51 of the Civil Rights Law, alleging that his name and picture were used in these advertisements without his written consent. Supreme Court denied plaintiff’s motion for partial summary judgment with respect to liability. The Appellate Division reversed and granted the motion (82 AD2d 765).

The Appellate Division erred in granting plaintiff’s motion. Section 51 of the Civil Rights Law, directly applicable to the instant case, permits an individual to recover damages if his or her name or likeness is used for advertising or trade purposes without the individual’s prior written consent (see Arrington v New York Times Co., 55 NY2d 433, 439). The parties do not dispute that before the Rolex advertisements were published, plaintiff accepted a Rolex watch worth approximately $6,000 and acknowledged his membership in the “Rolex Club” in writing. Plaintiff sent the president of Rolex a photograph of himself with the handwritten inscription: “To Rene ... it’s good to be a member of your Rolex Club! All the best, Mario Andretti.” Whether this membership encompassed the use of plaintiff’s picture and name in Rolex advertisements, however, is the subject of sharply divergent recitations of the relevant events. Factual issues exist as to what membership in the Rolex Club entailed, i.e., whether plaintiff thereby consented to the use of his name and likeness in Rolex advertisements. Summary judgment for plaintiff on the issue of liability was therefore improper. Parol evidence may be introduced to establish that an equivocal writing signed by the subject of the photograph was intended as the expression of consent contemplated by the statute to the use of the name.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the order of Supreme Court, New York County, entered December 8,1980 reinstated. The question certified should be answered in the negative.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order, insofar as appealed from, reversed, etc.


author: Fuchsberg, J.

text:
    In the Matter of an Investigation into the Death of Abe A. Jon L., Respondent; District Attorney, New York County, Appellant.
    Argued May 6, 1982;
    decided June 17, 1982

      POINTS OF COUNSEL

      Robert M. Mortenthau, District Attorney (Robert M. Fitter and Amyjane Rettew of counsel), appellant pro se.

    The order permitting the taking of blood samples from Jon L. complied with all constitutional and statutory requirements. (Cupp v Murphy, 412 US 291; Schmerber v California, 384 US 757; People v Allweiss, 48 NY2d 40; People v Macedonio, 42 NY2d 944; People v Robinson, 27 NY2d 864; People v Teicher, 52 NY2d 638; People ex rel. Simpson Co. v

      Kempner, 208 NY 16; Matter of District Attorney of Kings County v Angelo G., 48 AD2d 576, 38 NY2d 923; People v McClain, 88 Misc 2d 693.)

      Lawrence Iason, Robert Kasanof and Howard E. Heiss for respondent.
    I. There is no authority to require a suspect who has not been arrested or indicted to submit to a blood test. (People v Hickey, 40 NY2d 761; Matter of Alphonso C. [Morgenthau], 38 NY2d 923; Matter of Simonson v Cohn, 27 NY2d 1; People v Hillman, 246 NY 467; Heishon v Knickerbocker Life Ins. Co., 77 NY 278; Matter of Wade v Department of Mental Hygiene of State of N. Y., 71 AD2d 628, 49 NY2d 947; Matter of Buthy v Ward, 34 AD2d 884; Woods v Barton, 226 App Div 38; Matter of Weisberg v Police Dept. of Vil. of Lynbrook, 46 Misc 2d 846.) II. The order directing Jon L. to submit to a blood test is unreasonable and violates the Fourth Amendment. (Schmerber v California, 384 US 757; People v De Bour, 40 NY2d 210; People v Davis, 36 NY2d 280, 423 US 876; Matter of Alphonso C. [Morgenthau], 50 AD2d 97; Cupp v Murphy, 412 US 291; Matter of Barber v Rubin, 72 AD2d 347; People v Macedonio, 42 NY2d 944; People v Robinson, 27 NY2d 864.)
   OPINION OF THE COURT

Fuchsberg, J.

One of the greatest contributions of American law may be the protection it affords the individual against the power of the government itself. However, the values this bespeaks often require a delicate balancing of the individual interest in privacy and dignity against circumstances which may call for intrusion by organized society. In this context, we now are called upon to determine the exr tremely sensitive issue of whether a suspect in a homicide investigation may be compelled, pursuant to court order, to supply the People with corporeal evidence, in this case in the form of a sample of his blood for scientific analysis.

The question has yielded diverse opinions in the lower courts of this State (compare, e.g., People v Vega, 51 AD2d 33; Matter of Alphonso C. [Morgenthau], 50 AD2d 97, app dsmd 38 NY2d 923; and Matter of Mackell v Palermo, 59 Misc 2d 760, with Matter of District Attorney of Kings County v Angelo G., 48 AD2d 576, app dsmd 38 NY2d 923; People v McClain, 88 Misc 2d 693; People v Mineo, 85 Misc 2d 919; and Matter of Merola v Fico, 81 Misc 2d 206; cf. People v Middleton, 54 NY2d 42 [postarrest order]). Not unexpectedly, it has troubled commentators as well (see, e.g., Note, Detention to Obtain Physical Evidence Without Probable Cause, 72 Col L Rev 712; Note, Constitutional Limitations on the Taking of Body Evidence, 78 Yale LJ 1074).

It is in this perspective that, for the reasons which follow, we hold a court order to obtain a blood sample of a suspect may issue provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a “clear indication” that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable. In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other. Only if this stringent standard is met, as we conclude it was here, may the intrusion be sustained.

The proceedings in which we apply these principles are the aftermath of the discovery on January 16, 1980 that Abe A., business partner of Jon L., respondent on this appeal, had been bludgeoned to death in his Manhattan apartment. There was dramatic evidence' of a violent struggle. His head contained multiple lacerations, his face was severely contused, his larynx crushed. Blood was spattered throughout the apartment and five teeth, missing from the decedent’s mouth, were on the floor. Yet, there were no signs of a forced entry. Abe A. had last been seen alive in the early evening of the previous day when an attendant saw him park his car in the building’s garage; the car was still there when the body was found.

Entry of the apartment had been effected after Jon L., who claimed that he had become concerned when his partner had not arrived to keep a business appointment that morning, after receiving no answer on attempting to telephone Abe A. at home and learning that Abe A.’s car was still in the garage, called the police. After coming on the scene, an investigating detective who met Jon L. and the deceased’s son-in-law there observed that Jon L. had abrasions on his face and swellings and bruises on both hands, one of which bore tooth marks as well. The officer was struck by the fact that these were just the kind of injuries Abe A.’s assailant would have been likely to have received in the encounter which preceded the death. But inquiry of Jon L. only elicited the statement that he had sustained them while fending off an unsuccessful “mugging” robbery in the passageway leading to a busy subway station during the 4:30 p.m. “rush hour” on the previous day, an episode which, though allegedly causing him to be rendered unconscious for about an hour, he did not report to the police. The wristwatch for which the robber initially had lunged had not been taken. Neither a survey made that day among passengers who had traversed the same area at the approximate time when Jon L. said he was assaulted nor interrogation of a transit police department officer who had patrolled the passageway during that period brought any corroboration.

Thereafter, when analysis of the blood found in the murdered man’s apartment revealed it was of two types, one matching that of the deceased and the other a relatively rare one which was to be found in less than 1% of the population, the District Attorney requested Jon L. to voluntarily submit to the taking of blood samples for a blood-grouping test from which its type would be ascertained. Jon L. having persistently refused to comply, the District Attorney, reciting the afore-mentioned facts, and on notice to Jon L., moved in Supreme Court, New York County, for an order to compel him to do so.

At Criminal Term of that court, the Justice presiding having expressly found that “there is probable cause to believe that A.A. was murdered and that J.L. is guilty of that murder”, that the evidence sought “clearly” is probative and that the intrusion would be “trifling”, granted the application. He also cautioned that the blood must “be drawn in the minimum amount necessary to permit proper analysis * * * by a medical doctor in a medical environment * * * in a manner involving the least risk of trauma or pain”. The order he entered on this decision specified that the extraction of the blood take place at Bellevue, a city hospital, in the presence of a police detective charged with the duty of transporting it to the serology section of the New York City Medical Examiner’s office for analysis. It also provided for the sealing of the file in this matter.

Under New York law, there is no statutory authorization for direct appellate review of such an order (see Matter of Alphonso C. [Morgenthau], 38 NY2d 923, supra). The substantive question at stake nevertheless entered upon the appellate track when, Jon L. having failed to comply with the order, the People moved, pursuant to section 750 of our Judiciary Law, to punish him for willful disobedience of the “lawful mandate of the Court”. Though pronouncing him guilty of criminal contempt and imposing a sentence of 30 days’ imprisonment, the resulting order stayed execution of the punitive action pending appellate review, with the further proviso that, if it were upheld, Jon L. could purge himself by complying with the underlying direction.

This eventuality did not occur. Instead, a divided Appellate Division reversed the contempt order and, concomitantly, dismissed the order directing the giving of blood as academic (81 AD2d 362). The majority, without challenging the findings concerning probable cause or the probative quality of what the blood test would disclose, nonetheless was of the view that, because Jon L. had not been formally charged with any criminal offense, much less arrested, at the time the .underlying order was made, it ran counter to Fourth Amendment protections. On the People’s appeal to this court, we now reverse.

Preliminarily, we examine Criminal Term’s authority to compel production of the blood. In this connection, we note that, while in many States statutes or rules authorize their courts to compel a person whose status is no more than that of a suspect to supply nontestimonial evidence (e.g., 5A Ariz Rev Stat Ann, § 13-3905; Col Rules of Crim Pro, rule § 41.1; 4 Idaho Code, § 19-625; NC Gen Stat, § 15A-271 et sea.; Utah Code Ann, § 77-8-1; see ALI Model Code of Prearraignment Procedure, App VIII), our Criminal Procedure Law does not. And, absent express authorization, we have not favored importing, such power by implication (People v Gersewitz, 294 NY 163,167, cert den 326 US 687; People ex rel. Hirschberg v Orange County Ct., 271 NY 151, 155; Matter of Mollis v Cauise, 38 Misc 2d 179). Nor, therefore, are general enactments, such as section 2-b of the Judiciary Law to be construed to fill any supposed void (Matter of Alfonso C. [Morgenthau], 50 AD2d 97, app dsmd 38 NY2d 923, supra). Rather, we are as one with the Michigan Court of Appeals, which, when confronted with a like issue, graphically put it that “there is no such ‘animal’ in this jurisdiction as a court order authorizing the detention of a suspect for the purpose of a search” (People v Marshall, 69 Mich App 288, 300; see, also, Israel, Legislative Regulation of Searches and Seizures, 73 Mich L Rev 222, 310-314).

As Marshall also observes, however, equivalent judicial authority may be exercised under a court’s power to issue a search warrant (69 Mich App, at p 300). Nomenclature notwithstanding, if the application and the relief comport with all the requisites of a search warrant, it may be taken for what it is (id., at pp 300-302; United States v Allen, 337 F Supp 1041; Mills v State, 28 Md App 300, 307; cf. Schmerber v California, 384 US 757, 770).

So perceived, CPL 690.05 (subd 2) fits the search warrant bill. In so many words, it empowers a criminal court to order “a search * * * of a designated person” in order to seize specified property which, as defined in CPL 690.10 (subd 4) “[c]onstitutes evidence or tends to demonstrate that an offense was committed or that a particular person participated in the commission of an offense”. It requires no reach then to hold that the blood samples which are the target of the order in the proceeding before us now come well within these provisions (cf. People v Teicher, 52 NY2d 638, 651).

Turning then to the constitutional issues which confront us on this appeal, Fourth Amendment safeguards should be seen as implicated at two discrete levels. These are, first, “the ‘seizure’ of the ‘person’ necessary to bring him into contact with government agents” and, second, “the subsequent search for and seizure of the evidence” (United States v Dionisio, 410 US 1, 8). Each deserves separate analysis.

First, with regard to the “detention” — and thus the “seizure” — of an individual to obtain physical evidence, we begin by acknowledging that there are jurisdictions which have authorized such seizures on a standard below that of probable cause to arrest (e.g., State v Grijalva, 111 Ariz 476; State v Watson, 294 NC 159). But it is hard to regard such holdings as constitutionally firm. For, in Cupp v Murphy (412 US 291 [removal of fingernail scrapings]) and in Schmerber v California (384 US 757 [testing for alcohol in blood]), the Supreme Court, while in each case excusing the absence of a warrant because of “the ready destructibility of the evidence”, emphasized that the police had the requisite probable cause (Cupp v Murphy, supra, at pp 294-296; Schmerber v California, supra, at pp 770-771). Further, whatever doubt dicta may have introduced into the subject in Davis v Mississippi (394 US 721, 727-728) has been dispelled by Dunaway v New York (442 US 200), which squarely held that the seizure of a person can never be undertaken for less than probable cause. (See, generally, United States v Crowder, 543 F2d 312 [en banc], cert den 429 US 1062; United States v Jennings, 468 F2d 111, 115; Matter of Grand Jury Proceedings [Mills], 522 F Supp 500).

True it is that in Cupp and in Schmerber, judicial determination of probable cause was not made prior to the seizure, but, as we have already indicated, this was held permissible in those cases only because of exigent circumstances. A fortiori, when there is no danger of imminent destruction of the evidence for the procurement of which a person is to be detained, the rule is to the contrary. Indeed, this rule applies even when an inanimate object like a dwelling is seized so it can be searched for evidence (see, e.g., United States v Allard, 634 F2d 1182). Surely, then, when the physical evidence whose possession is the raison d’etre for detaining a person cannot be altered or destroyed, as in the case of the type of blood integral to one’s body (Graves v Beto, 301 F Supp 264, 265, affd 424 F2d 524), by definition there can be no exigency to justify exemption from the warrant standard of probable cause (US Const, 4th, 14th Arndts; NY Const, art I, § 12; United States v Allen, 337 F Supp 1041, supra; People v Marshall, 69 Mich App 288, 300, supra; Mills v State, 28 Md App 300, supra).

At this point it seems appropriate to add, since here there was no exigency, that the course followed by the People in bringing on its original application on notice to the suspect was no more than is required by such circumstances (see, e.g., United States v Crowder, 543 F2d 312, 316, supra; State v Martin, 404 So 2d 960 [La]). After all, when frustration of the purpose of the application is not at risk, it is an elementary tenet of due process that the target of the application be afforded the opportunity to be heard in opposition before his or her constitutional right to be left alone may be infringed (cf. Matter of Barber v Rubin, 72 AD2d 347, 352 [Hopkins, J.] [extraction of hair and their roots]).

This also may be a good juncture at which to express our disagreement with the Appellate Division’s conclusion that a formal charge that he had committed the crime was a prerequisite for the judicial directive that Jon L. make himself available for the drawing of the blood. We can find no case in which a court of general jurisdiction has been held to be without power to authorize a seizure or a search until a suspect is arrested and actually charged with a crime (cf. Zurcher v Stanford Daily, 436 US 547). So, in Cupp v Murphy (412 US, supra, at p 294), the Supreme Court held the seizure of the fingernail scrapings there permissible though the defendant had not been “formally arrested”. A like holding, significantly this time in a blood extraction case, may be found in Aliff v State (627 SW2d 166, 168-170 [Tex]).

Pragmatically put, “There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect * * *. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.” (Hoffa v United States, 385 US 293, 310.)

Beyond this, we fail to see how a formal arrest requirement would be any more protective of individual liberty. The procedure utilized here not only avoided the more extended detention inevitably entailed in formal arrest procedures, but, because of the sealing order, the suspect was able to keep his identity within private confines. Or, as Justice Silverman rhetorically asked in his dissent at the Appellate Division, “Appellant has a legitimate interest in not being prosecuted. But what possible legitimate interest does he have in being prosecuted?” (81 AD2d, at p 371.)

This said, we now come to the second level of our Fourth Amendment inquiry, a multifaceted one focusing on the bodily intrusion itself.

To begin with, “clear indication” that the intrusion will supply substantial probative evidence is a sine qua non (Cupp v Murphy, 412 US 291, 295, supra; Schmerber v California, 384 US 757, 770, supra). This requirement, by insuring that the evidence expected to be found is of importance, guards against a “fishing expedition”. Needless to say, most often facts which would establish probable cause will also tend to establish the high degree of relevance the nontestimonial evidence sought would have (Schmerber v California, 384 US, supra, at p 770).

Next, the method by which the authorized intrusion is to be accomplished must be safe, reliable and impose no more physical discomfort than is reasonably necessary (United States v Crowder, 543 F2d 312, supra; People v Scott, 21 Cal 3d 284; cf. Rochin v California, 342 US 165). When, as here, the body is to be invaded, the procedure should be carried out by a qualified physician in accordance with accepted medical standards (Schmerber v California, 384 US, supra, at pp 771-772).

Finally, before authorizing the intrusion, the court must give careful consideration to the circumstances of the particular case. These should include, for instance, not only the probable worth of the evidence to the investigation, but the nature of alternative means, if any, for obtaining the evidence (People v Scott, 21 Cal 3d 284, 293, supra; Matter of Barber v Rubin, 72 AD2d 347, 353, supra; cf. People v Teicher, 52 NY2d 638, 655, supra).

These standards in mind, we cannot say that the facts were insufficient to justify Criminal Term’s finding of probable cause that Jon L. committed the crime under investigation, a finding the Appellate Division did not disturb. Furthermore, unlike the dragnet operation condemned in Davis v Mississippi (394 US 721, supra), Jon L. is the only suspect. It is, to say the least, a strange coincidence that this man, who had such ready access to the decedent, bore injuries which dovetailed with those the deceased’s assaulter might be expected to have sustained, even to the detail of the tooth marks. In juxtaposition to this fact, the further coincidence that Jon L.’s injuries allegedly were sustained during the same time span in which the murder was committed is almost equally strange. And, taking Jon L.’s unreported explanation for his injuries at face value, the inability of prompt police investigation to unearth a single patron of the heavily trafficked subway station who witnessed either the mugging or any part of the ensuing unconsciousness or, for that matter, the failure of any one of the hundreds of passengers who traversed the area during the hour when he was prostrate to give aid or seek medical or other assistance is also more than passing strange. In toto, it cannot be concluded as a matter of law that Jon L. has been singled out as the prime suspect without good cause or that there was not a substantial factual predicate on which nisi prius could have posited its finding of probable cause.

Nor can there be any serious question but that Jon L.’s blood type would constitute material probative evidence. The serological tests having established that a type of blood other than that of Abe A. was found on the walls and floors of his apartment, it was not unreasonable to assume it was that of the killer. That the incidence of the presumed killer’s blood type in the general population is less than one to a hundred is well documented by medical statistics. The scientific validity and reliability of tests used to identify the type of blood a particular individual carries and to determine whether the blood of one person matches that of another are well recognized in both the medical and legal communities (Moenssens, Moses and Inbau, Scientific Evidence in Criminal Cases [1973 ed], §§ 6.13, 6.16; Soderman and O’Connell, Modern Criminal Investigation [5th ed], pp 242-253; Gross, Criminal Investigation [5th ed], pp 103-106; McCormick, Evidence [2d ed], § 211, pp 517-523; Blood Grouping Tests, Ann., 46 ALR2d 1000, §§ 11,17,18). Moreover, the relative rarity of the assailant’s type of blood relegates arguments as to remoteness to the realm of weight rather than admissibility (cf. People v Yazum, 13 NY2d 302).

Lastly, we observe that no alternative means of obtaining the evidence was brought forward and the order to submit to the taking of the blood, in today’s world hardly less routine than taking one’s temperature, respected minimization requirements.

From all this it follows that the order of the Appellate Division should be reversed, without costs, and the orders of Criminal Term should be reinstated.

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

Order reversed, without costs, and the orders of Supreme Court, New York County, reinstated.

      . Criminal Term and the Appellate Division each utilized this anonym to keep the identity of the parties confidential. To protect the presumptively innocent respondent, - we continue to use it on this appeal.

      . Our decision in People v Middleton (54 NY2d 42, supra) is not to be read as authority for such orders. There the criminal proceeding already had been commenced, so the order was issued against one who already was a defendant. In this circumstance, CPL 240.40 (subd 2, par [a]) would appear to authorize the issuance of such an order.

      . We here have no occasion to decide whether the Federal Constitution required that appellate review be made available prior to submission to the intrusion in this case (e.g., United States v Crowder, 543 F2d 312, 316, supra; cf. Note, Detention to Obtain Physical Evidence Without Probable Cause, 72 Col L Rev 712, 735-737). The technique employed here — appeal from conditional contempt — or an article 78 proceeding (see Matter of Barber v Rubin, 72 AD2d 347, 350-352, supra) in any event provides a constitutionally adequate substitute (see Matter of Wiley v Altman, 52 NY2d 410, 412-413, n 2).

      . Suffice it here to say that People v Macedonia (42 NY2d 944) and People v Robinson (27 NY2d 864), cited for the contrary proposition by the respondent, each dealt with type A blood, which is found in 40% of the population.