text:
    Carmen Baez, as Executrix of Rosa J. Caraballo, Deceased, and as Testamentary Guardian of Lisa R. Caraballo and Another, Infants, Appellant, v New York City Health and Hospitals Corporation et al., Respondents, et al., Defendants.
    Argued November 20,1992;
    decided December 22, 1992

      POINTS OF COUNSEL

      Stuart A. Mack, New York City, for appellant.
    I. The time for commencement of plaintiffs actions was tolled by statutory prohibitions contained in CPLR 204 (a) and 208, by reason of and until appointment of a guardian for the sole infant distributees of the decedent, which was necessary to obtain a personal representative to commence this proceeding, and, therefore, the Statute of Limitations prescribed by law was tolled for the duration of time until the appointment of the said guardian or personal representative (or until the infant reached majority) whichever first occurred, which time is excludable from the time within which the actions must be commenced, in the absence of any demonstrable actual prejudice to defendants-respondents. (Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687; Sharrow v Island Lines, 214 NY 101; Caffaro v Trayna, 35 NY2d 245; George v Mt. Sinai Hosp., 47 NY2d 170; Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256; Matter of Ziecker v Town of Orchard Park, 70 AD2d 422, 51 NY2d 957; Roldan v Allstate Ins. Co., 149 AD2d 20; Gonzalez v New York City Hous. Auth., 77 NY2d 663; Collins v New York City, 55 NY2d 646.) II. Defendants are precluded from relitigating the issue of whether this action is tolled by CPLR 204 (a) and 208 or until appointment of a guardian, personal representative or an infant reaches majority (whichever occurs first) by the order of this Court, dated December 23, 1991, in Hernandez v New York City Health & Hosps. Corp. (78 NY2d 687). (Schultz v Boy Scouts of Am., 65 NY2d 189; Schwartz v Public Adm’r of

      County of Bronx, 24 NY2d 65; McCue v Arel, 171 AD2d 845; George v Mt. Sinai Hosp., 47 NY2d 170; Statter v Statter, 2 NY2d 668; B. R. DeWitt, Inc. v Hall, 19 NY2d 141.) III. The statutory prohibitions contained in McKinney’s Unconsolidated Laws of NY § 7401 (1) and General Municipal Law § 50-h are excludable time periods for purposes of the toll contained in CPLR 204 (a) and the Statute of Limitations for each cause of action is extended by the like excludable period, thereby extending the time within which the within actions could have been brought from July 17, 1987 to December 1987, and when the toll for infancy is added, the extension of time within which plaintiff could bring the complaint ran to August 17, 1988 making all actions herein timely, as a matter of law. (Roldan v Allstate Ins. Co., 149 AD2d 20; Wakefield v Board of Educ., 274 App Div 884, 299 NY 664; Amex Asphalt Corp. v City of New York, 263 App Div 968, 288 NY 721; Kowalski v New York City Dept, of Corrections, 66 AD2d 814.) IV. The tolls and stays provided for in CPLR 204 (a) and 208 are applicable to the cause of action for conscious pain and suffering making service of the complaint on July 24, 1987 timely, as a matter of law. V. The nisi prius court found that the doctors defendants-respondents were united in interest with the corporation under CPLR 203-b (1), and the Court below did not contradict that finding, only determining erroneously that if the action failed against the hospital corporation as time-barred, it failed against said doctors. Since appellants have shown the timeliness of the action against the corporation, likewise, the actions against the doctors must be reinstated. (Caffaro v Trayna, 35 NY2d 245.)

      O. Peter Sherwood, Corporation Counsel of New York City, New York City (Stephen J. McGrath and Leonard Koerner of counsel), for respondents.
    I. The infancy of the decedent’s distributees does not serve to toll the one-year and 90-day limitations period since plaintiff was the named executor under the decedent’s will and thus was, at decedent’s death, a "potential personal representative entitled to 'commence an action’ ” for wrongful death. (Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687, 694 [1991].) Even assuming the infancy tolled the limitations period on the wrongful death action, any claim for personal injuries is time-barred. (Brennan v City of New York, 59 NY2d 791; DeGradi v Coney Is. Med. Group, 172 AD2d 582, 78 NY2d 860; Williams v City of New York, 97 AD2d 372; Hernandez v New York City

      Health & Hosps. Corp., 169 AD2d 535; Matter of Sellers v Motor Vehicle Acc. Indem. Corp., 20 AD2d 350; Wikoff v Hirschel, 258 NY 28; Hammie v City of New York, 143 AD2d 805; Williamson v Lee Opt. Co., 348 US 483; Maresca v Cuomo, 64 NY2d 242, 474 US 802.) II. Plaintiffs argument that the period of limitations is tolled pursuant to CPLR 204 (a) was never raised in the courts below and thus was not preserved. Should this Court reach that argument, it should be rejected since the one-year and 90-day limitations period contained in McKinney’s Unconsolidated Laws of NY § 7401 is not tolled by virtue of its own requirement that plaintiff await 30 days after serving a notice of claim prior to bringing suit, or by the request for a hearing pursuant to General Municipal Law § 50-h. Likewise the time to commence suit against the individual doctors is not tolled pursuant to CPLR 204 (a). (General Municipal Law §§ 50-i, 50-k [6].) (Quoin v Buzzetta Constr. Corp., 69 NY2d 376; Massie v Crawford, 78 NY2d 516; Telaro v Telaro, 25 NY2d 433; Matter of Richardson v Fiedler Roofing, 67 NY2d 246; Matter of Burns v Quinones, 68 NY2d 719; Bender v Jamaica Hosp., 40 NY2d 560; Joiner v City of New York, 26 AD2d 840; Astromovich v Huntington School Dist., 80 AD2d 628, 56 NY2d 634; Graber v City of New York, 89 AD2d 598; Rose v Metro N. Commuter R. R., 143 AD2d 993, 73 NY2d 994.) III. The record does not establish that the individual defendants, Drs. Chen and CeCe, were united in interest with defendant Health and Hospitals Corporation. (Brock v Bua, 83 AD2d 61; Lamb v Prime Computer, 158 AD2d 798.)
   OPINION OF THE COURT

Smith, J.

The primary issue presented on this appeal is whether CPLR 208 applies to toll the Statute of Limitations for commencing an action for wrongful death and conscious pain and suffering on behalf of infant beneficiaries where the decedent’s will named plaintiff executrix of her estate and stated that plaintiff should be appointed guardian for her infant children. We hold that CPLR 208 does not apply to toll the Statute of Limitations under those circumstances because plaintiff, as executrix, could have timely sought appointment as the personal representative of the decedent’s estate and commenced the action on the infants’ behalf (see, EPTL 5-4.1).

On April 17, 1986, Rosa Caraballo, then a 30-year-old widow and mother of two daughters, ages 8 and 10, died while receiving care and treatment at Elmhurst General Hospital, a facility owned and operated by defendant New York City Health and Hospitals Corp. (NYCHHC). Prior to her death, Rosa Caraballo had executed a will naming her mother, Carmen Baez, executrix of her estate and stating that she should be appointed guardian of the infant children. On October 7, 1986, letters testamentary were issued to Carmen Baez authorizing her to administer her daughter’s estate. Letters of guardianship for the decedent’s two children were issued to Carmen Baez on November 18, 1986.

On January 5, 1987 Carmen Baez, on behalf of the infants, filed a notice of a claim for wrongful death and conscious pain and suffering against defendant NYCHHC. On July 24, 1987, more than one year and 90 days after her daughter’s death, Baez served a summons and complaint upon defendant NYCHHC. Baez then commenced a second wrongful death cause of action against two doctors who allegedly operated on the infants’ mother by serving another summons and complaint on Dr. Yen Chen on April 21, 1988 and on Dr. John CeCe on June 17, 1988. All three defendants moved to dismiss the actions upon the ground that the Statute of Limitations for commencing the actions had expired or, alternatively, to consolidate the actions. Plaintiff cross-moved to dismiss the Statute of Limitations defenses, arguing that the actions were timely because CPLR 208 applied to toll the Statute of Limitations until letters of guardianship were issued.

Supreme Court granted plaintiff’s cross motion to dismiss the Statute of Limitations defenses, holding that "[i]nasmuch as the sole distributees of the decedent are the infants and the disability of infancy prevents an action from being commenced on their behalf until a guardian is appointed for them, the applicable statute of limitations is tolled until the date of the guardian’s appointment.” The Appellate Division reversed the order, denied plaintiff’s cross motion to dismiss the affirmative defenses of untimeliness and granted defendants’ motion to dismiss the complaints as time-barred. The Court held that "the limitations period commenced running on the date of the decedent’s death rather than on the date of [the] appointment [of decedent’s mother] as executrix or guardian * * * and a toll for infancy pursuant to CPLR 208 is unavailable as there was an adult relative of the deceased who could have instituted the action on behalf of the decedent” (168 AD2d 529, 530). The Appellate Division granted plaintiffs motion for leave to appeal to this Court.

Under the EPTL, personal representatives of a decedent have two years, measured from the date of death, in which to commence a wrongful death cause of action (EPTL 5-4.1). However, at the time the present action was commenced, a one-year and 90-day Statute of Limitations applied to actions brought against this municipal defendant (McKinney’s Uncons Laws of NY § 7401 [2] [New York City Health and Hospitals Corporation Act § 20 (2); L 1969, ch 1016, as amended]). A one-year and 90-day Statute of Limitations period also applied to actions commenced against employees of municipal defendants or public corporations (General Municipal Law § 50-i).

In this case, the decedent’s will named plaintiff Baez executrix of her estate. Upon her daughter’s death, plaintiff Baez could have timely sought appointment as a personal representative to commence the actions on behalf of the infant children and her failure to do so does not suspend the running of the applicable limitations period. The actions against defendants are untimely because they were not commenced until after the one-year and 90-day statutory period had expired.

In Ratka v St. Francis Hosp. (44 NY2d 604), the decedent was survived by his wife, an adult daughter and six infant children. More than two years passed during which neither the wife nor the daughter sought appointment as representative of the decedent’s estate for purposes of bringing a wrongful death action. One of the infant children, having subsequently reached majority, commenced a wrongful death action three years after the date of the father’s death. This Court held that "[t]he infancy of the decedent’s children will not suspend the running of the * * * Statute of Limitations for commencement of a wrongful death action” because a personal representative was not timely appointed despite the opportunity to do so (see, id., at 611-612).

Hernandez v New York City Health & Hosps. Corp. (78 NY2d 687), cited to support the argument that CPLR 208 applies to toll the limitations period for commencing the actions, does not aid the plaintiff. There, this Court held that CPLR 208 applies to toll the Statute of Limitations for commencing a wrongful death cause of action on behalf of an infant intestate distributee until letters of guardianship are issued or majority of the intestate distributee, whichever occurs first, where there is no representative to commence the action on behalf of the infant before that time. Thus, this Court "construe[d] the toll of CPLR 208 to apply until the earliest moment there is a personal representative or potential personal representative who can bring the action, whether by appointment of a guardian or majority of the distributee, whichever occurs first” (id., at 693).

Our holding in Hernandez does not control here because the decedent’s will named her mother executrix of her estate. The concern expressed in Hernandez of not reaching the unnecessarily harsh result of denying an infant claimant the right to assert a claim is absent in this case since the executrix provided for in the will could have timely sought appointment as the personal representative of the decedent’s estate and commenced the actions on infants’ behalf after the death of their mother (see, EPTL 5-4.1). Thus, we conclude that CPLR 208 does not apply to toll the applicable limitations period.

Plaintiff also argues that two waiting periods built into the statutory scheme serve to toll the Statute of Limitations pursuant to CPLR 204 (a). The waiting periods referred to involve the 30 days required between service of a notice of claim and commencement of an action (McKinney’s Uncons Laws of NY § 7401 [1]), and the time necessary for a claimant to comply with an examination request before commencing an action (McKinney’s Uncons Laws of NY § 7401 [2]). We conclude that the Legislature did not intend to extend the limitations period by inclusion of these waiting periods (cf., General Municipal Law § 50-i [3] [providing that none of the section’s provisions, including the 30-day waiting period and the § 50-h examination of claim, "shall operate to extend the (limitations) period.”]).

Plaintiff’s remaining contentions are without merit.

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

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

       As of August 24, 1990, a two-year Statute of Limitations applies to wrongful death claims against NYCHHC (L 1990, ch 804, § 122; Public Authorities Law § 2981).


source: Caselaw Access Project

author: Acting Chief Judge Simons. Hancock, Jr., J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Juan Castillo, Appellant.
    Argued October 16,1992;
    decided December 22,1992

      POINTS OF COUNSEL

      Susan Hofkin Salomon, New York City, and Philip L. Weinstein for appellant.
    The complete denial to the defense of access to the search warrant affidavit and oral application, and its subsequent exclusion from hearings on the warrant, all premised on the "informant’s privilege,” denied appellant the "opportunity for full and fair litigation” of any issues concerning the propriety of the search, and thereby violated his rights to the effective assistance of counsel and due process. (People v Seychel, 136 Misc 2d 310; People v Darden, 34 NY2d 177; United States v Nixon, 418 US 683; Waller v Georgia, 467 US 39; United States v Wade, 388 US 218; United States ex rel. Thomas v O’Leary, 856 F2d 1011; United States v Raddatz, 447 US 667; Kimmelman v Morrison, 477 US 365; Stone v Powell, 428 US 465; Alderman v United States, 394 US 165.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Nikki Kowalski and Mark Dwyer of counsel), for respondent.
    In order to protect the safety of the confidential informant who provided the probable cause for a warrant to search defendant’s apartment, the court below properly issued a protective order denying defendant discovery of the search warrant application and conducted a hearing ex parte and in camera on defendant’s claim that the warrant was tainted by a prior illegal entry. (People v Taylor, 65 NY2d 1; People v Petgen, 55 NY2d 529; People v Prescott, 66 NY2d 216, 475 US 1150; People v Darden, 34 NY2d 177; People v Liberatore, 79 NY2d 208; Roviaro v United States, 353 US 53; Stone v Powell, 428 US 465; United States v Williams, 716 F2d 864; People v Chipp, 75 NY2d 327; McCray v Illinois, 386 US 300.)
   OPINION OF THE COURT

Acting Chief Judge Simons.

Defendant has been convicted of criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the fourth degree. The inculpating evidence was discovered after police executed a warrant based upon information supplied by a confidential informant authorizing a search of his apartment.

After his arrest, defendant sought to inspect the warrant and the supporting documents and to have a hearing to challenge the issuing Judge’s determination that probable cause for the search existed. The court denied discovery and, following an in camera suppression hearing, denied the motion to suppress. Defendant was not afforded the opportunity to see the supporting documents or to participate in the hearing because the court found that disclosure of the informant’s identity and/or statements could compromise the safety of the informant or the integrity of future investigations (see, CPL 240.50). The sealed record, which includes the search warrant and supporting affidavits and the oral testimony heard by the issuing Judge and the suppression court, has been supplied to the Appellate Division and to this Court and an examination of it establishes convincingly that there was support for the determination by the courts below that the warrant was issued upon probable cause, that the documents supporting the warrant were not perjurious and that the affidavit and oral testimony could not be effectively redacted for delivery to defendant without destroying the informant’s anonymity.

Defendant does not challenge in this Court the claimed need for confidentiality; he contends only that a suppression procedure conducted without his participation violates his constitutional right to due process of law and the effective assistance of counsel. The sum of his argument is that regardless of the substantiality of the evidence supporting the warrant or the need for confidentiality, disclosure of the information, if not the identity, of the informant is always required. We conclude that under the circumstances presented in this record, the trial court could, and properly did, deny defendant discovery.

I

On April 6, 1988 police officers searched defendant’s apartment at 611 West 177th Street in New York. The search was authorized by a Supreme Court Justice who approved the warrant after examining the police officer and his affidavit in support of the warrant and after taking the sworn testimony of the confidential informant upon which the officer’s affidavit was based. After issuing the warrant, the Justice ordered the record sealed.

When the police executed the warrant, they found eight pounds of cocaine, a loaded machine gun, two handguns and 100 rounds of automatic ammunition underneath the floorboards of defendant’s bedroom closet. In a cabinet in the dining room they found $28,000 in cash, approximately half of which was in denominations of $20 bills or smaller. Defendant was present during the search and was arrested after the officers discovered the contraband. He was subsequently charged with criminal possession of a controlled substance in the first degree, and three counts of criminal possession of a weapon in the fourth degree. He sought suppression of the narcotics and weapons found in his apartment claiming they were seized pursuant to an unlawful search.

In addition to challenging the sufficiency of the warrant application, defendant also claimed that the search was tainted because of a prior police contact. Defense counsel alleged that defendant’s wife told him that two detectives had come to the apartment on April 5, 1988, the day before the search, and entered the living room without seeking permission to do so. Once inside, the officers showed defendant’s wife a picture of a person they claimed had previously lived in the apartment and asked if she knew where he was. She told them that she did not and that the only people then living in the apartment with her were her husband and her daughter. According to Ms. Castillo, some of the police officers went through the apartment without permission.

Defense counsel claimed that this entry into defendant’s apartment was illegal because it was not authorized by a warrant, was not consensual, and was not supported by exigent circumstances. He also maintained that, but for this illegal entry, there would be no evidence providing probable cause for the warrant authorizing the search conducted the following day. Subsequent to the hearing on the warrant, the suppression court conducted an in camera hearing to determine if the conduct of the officers on April 5 tainted the search on April 6. The evidence presented included the facts that the April 5 search was by officers from another agency, the Drug Enforcement Agency, and that it involved a former tenant. The suppression court found that the two searches were unrelated and that the earlier search had not tainted the latter.

After defendant’s suppression motion was denied, he entered a plea of guilty to criminal possession of a controlled substance in the second degree and one count of criminal possession of a weapon in the fourth degree in satisfaction of the indictment.

II

Defendant has a constitutional right to be free from unreasonable searches (US Const 4th Amend; NY Const, art I, § 12). Evidence acquired by unconstitutional means, as determined at a pretrial suppression hearing, must be excluded at trial (see, Murray v United States, 487 US 533, 536; People v Johnson, 66 NY2d 398). The question presented is whether defendant has an absolute right to take part in such a hearing. Its resolution depends upon a sensitive balancing of a defendant’s right to participate in the defense and society’s need to encourage citizens to participate in law enforcement by granting them anonymity when necessary for their protection (see, Roviaro v United States, 353 US 53, 62; People v Darden, 34 NY2d 177, 181-182).

Analysis starts by focusing on the nature of the proceeding for there is a fundamental difference between a trial to adjudicate guilt or innocence and a pretrial hearing to suppress evidence. The due process requirements for a hearing may be less elaborate and demanding than those at the trial proper (United States v Raddatz, 447 US 667, 679; United States v Williams, 716 F2d 864, 865, cert denied sub nom. Taylor v United States, 467 US 1216; People v Scalza, 76 NY2d 604, 609-610). This is so because, as the Supreme Court has observed, at a pretrial hearing,

" 'we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society’s need for the informer privilege.
Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment * * * If the motion to suppress is denied, defendant will still be judged upon the untarnished truth.’ ” (McCray v Illinois, 386 US 300, 307 [quoting from State v Burnett, 42 NJ 377, 201 A2d 39]; see generally, 1 LaFave, Search and Seizure § 3.3 [g] [2d ed].)

The ability to limit disclosure during trial must be fairly circumscribed where the identity of the informer or the contents of the informer’s communication is relevant and helpful to the defense (see, Roviaro v United States, 353 US 53, 60-61, supra; People v Goggins, 34 NY2d 163, 168-169, cert denied 419 US 1012). Indeed, many of the cases cited by the dissent stand for the unquestioned importance of defendant’s right to participate in his trial. They do not address the requirements for pretrial hearings, however, where the considerations are substantially different. The exclusionary rule is not aimed at safeguarding the truth-seeking process nor is its underlying purpose to redress any injury to the defendant’s privacy. It is a judicially created remedy intended as a means of discouraging police misconduct (see, Stone v Powell, 428 US 465, 486). Accordingly, defendant’s interest in availing himself of the exclusionary rule may, in exceptional circumstances, be subordinated to safety precautions necessary to encourage citizens to participate in law enforcement.

Recognition of this principle is implicit in our holdings that a suppression court can deny disclosure of the identity of an informant (see, People v Darden, 34 NY2d 177, 181, supra; People v Castro, 29 NY2d 324, 326; People v Coffey, 12 NY2d 443, 452-453, cert denied 376 US 916; accord, McCray v Illinois, 386 US 300, 312-313, supra; cf., People v Malinsky, 15 NY2d 86), or deny a defendant’s motion to compel an undercover police officer to testify at a suppression hearing (People v Petralia, 62 NY2d 47, 52-53, cert denied 469 US 852). Indeed, we have even circumscribed a defendant’s participation in pretrial hearings by limiting the right to compel an identified victim to testify at the hearing (see, People v Chipp, 75 NY2d 327, 336-339, cert denied 498 US 833). To be sure, the limitations on disclosure in those cases were only partial, but they establish that a defendant’s interests may be conditioned when necessary to protect those of society.

Moreover, People v Darden (34 NY2d 177, supra) endorsed the principle that when necessary the court may undertake the responsibility of protecting the defendant’s interests by authorizing the suppression court to examine the confidential informant in camera. In order to protect the confidentiality of the informant, we sanctioned a procedure whereby a significant aspect of the inquiry on the motion to suppress is conducted by the court on the defendant’s behalf, without the defendant’s direct participation (see, People v Darden, 34 NY2d, at 181, supra).

Thus, the Darden decision rejects the fundamental premise underlying defendant’s argument, that only through the advocacy of "single-minded counsel for the accused” (citing People v Rosario, 9 NY2d 286, 290, cert denied 368 US 866) can a defendant’s interests at a suppression hearing be adequately protected and that legal issues like probable cause can be determined only on the basis of a record fully available to the defendant. We have already decided that a hearing court may, when necessary to protect a confidential informant, undertake inquiry relevant to the issue of probable cause on the condition that it discharge its duties "with recognition of the special need for protection of the interests of the absent defendant” (People v Darden, 34 NY2d, at 181, supra).

We recently reaffirmed the continued viability of these principles in People v Liberatore (79 NY2d 208). There, the People, to protect the identity of a confidential informant, did not disclose to the defendant a sealed statement by the informant which was part of an application for an eavesdropping warrant. The defendant maintained that this omission violated the statute requiring disclosure of eavesdropping applications to the defense within 10 days of arraignment, and thus required suppression of the eavesdropping evidence. Despite our long tradition of strictly enforcing the technical requirements of the eavesdropping statute (see, e.g., People v Schulz, 67 NY2d 144, 148-149), we refused to order suppression solely on the basis of this omission. In doing so, we stated that even if the information from the informant had contributed to the probable cause for the eavesdropping warrant, it need not necessarily be disclosed to the defendant if there were "other compelling reasons for nondisclosure” (see, People v Liberatore, 79 NY2d, at 216, supra).

This case differs from Darden in two respects. First, here, unlike in Darden, none of the purported factual predicates for probable cause was revealed to defendant. Thus, the hearing court’s assumption of the burden of questioning the search on defendant’s behalf differed in degree, if not in nature, from that sanctioned in Darden. That circumstance is not fatal, however: several intermediate appellate courts have approved ex parte, in camera review of search warrant applications and affidavits, upholding similar orders denying disclosure to defendant (see, People v Rodriguez, 182 AD2d 439; People v Peterson, 159 AD2d 983, lv denied 76 NY2d 794; People v Diaz, 147 AD2d 912, lv denied 73 NY2d 1014; People v Delgado, 134 AD2d 951, Iv denied 71 NY2d 895; see also, United States v Williams, 716 F2d 864, supra). Under the unusual circumstances regarding confidentiality in this case, such procedure was appropriate.

The other difference is that Darden involved a warrantless search, whereas here the search was conducted pursuant to a warrant issued by a Judge who had personally examined the informant. This simplified the suppression court’s review because a presumption of validity attached to the warrant given that a Magistrate had already reviewed the purported basis for the search and determined it to be valid (see, People v Hanlon, 36 NY2d 549, 558-559) and the suppression court had before it a record consisting of the written application and the transcript of the informant’s sworn oral testimony offered in support of the application. Thus, it was not necessary to develop a factual record of the basis for the search. The court was left with the relatively uncomplicated task of deciding whether, based on the warrant application and supporting affidavit along with the informant’s oral testimony, the issuing Judge reasonably could have concluded that probable cause existed (see, People v Hendricks, 25 NY2d 129, 138; People v Rainey, 14 NY2d 35, 38-39). This is precisely the type of inquiry which can be resolved accurately on an ex parte, in camera basis (cf., Alderman v United States, 394 US 165, 182-183 [factual issues too complex to rely wholly on in camera judgment of trial court]).

Although a defendant who does not have access to the information purporting to establish probable cause will be unable to suggest reasons why probable cause was lacking, this fact does not deprive the defendant of due process or the effective assistance of counsel. The importance of a defendant’s input is limited in a suppression hearing because an appellate court does not reevaluate the accuracy of the underlying information; it does "no more than insure that there was a substantial basis for the magistrate’s conclusion that probable cause existed” (see, People v Johnson, 66 NY2d 398, 405, supra).

Concededly, when a court resolves this question without the defendant’s participation it must be particularly diligent and consider all possible challenges that might be raised on the defendant’s behalf, but we authorized the procedure in Darden and defendant offers no persuasive reason why, in the extraordinary cases in which safeguards are required, the court cannot be expected to do a competent job of performing such a straightforward, purely legal task particularly within the ambit of its expertise.

Ill

An examination of the record establishes that the court diligently protected defendant’s rights in the case before us. In determining whether to disclose the informer’s identity or statements, it followed the four-step procedure set forth in People v Seychel (136 Misc 2d 310). In the first step the court reviewed the search warrant to determine whether it alleged probable cause in this case by application of the AguilarSpinelli test (see, People v Griminger, 71 NY2d 635), or whether it was perjurious on its face. If the supporting affidavit had appeared perjurious on its face, the court would have conducted an in camera hearing to determine if the affidavit contained perjury and if it did, would have given the People the choice of turning over the affidavit for a hearing or discontinuing the prosecution (see, Franks v Delaware, 438 US 154; People v Alfinito, 16 NY2d 181). Finding neither, the court next proceeded to conduct an in camera, ex parte inquiry of the informant and examined the People’s exhibits to determine whether the informant’s life and/or future investigations would be jeopardized by disclosure. Confidentiality was deemed necessary, and the court then proceeded to try and redact portions of the affidavit to conceal the informant’s identity while giving the defendant a description of the information resulting in his arrest. It found this impossible and therefore ordered the People to produce the informant for a Darden-type inquiry in which it could evaluate credibility (see, People v Darden, 34 NY2d 177, supra). The court made a similar inquiry concerning the April 5 entry into the apartment and found the search of April 6 untainted by the prior police activity on April 5.

Based upon these hearings, the suppression court denied defendant’s motion for discovery and granted the People’s request for a protective order prohibiting disclosure. We conclude it properly exercised its discretion when it did so.

IV

Our conclusion that a defendant’s opportunity to participate in suppression proceedings must yield in some cases to the need for confidentiality is not intended to suggest that courts may routinely grant the People’s application to seal the record. The procedures sanctioned here are reserved for those cases in which the reliability of the evidence of probable cause and the necessity for confidentiality are clearly demonstrated. In this case, however, both the issuing Judge and the suppression court questioned the police officer affiant and the informant under oath and concluded that there was probable cause for the search, that the police officer’s affidavit was truthful and that there was an overriding need for confidentiality. Addressing the additional allegations of fact contained in defense counsel’s affidavit in support of the motion to suppress, the court found, after sufficient inquiry and on sufficient evidence, that there was no taint. We conclude, therefore, as did a unanimous Appellate Division, that there is support in the record for the suppression court’s findings and that under the circumstances the procedures it followed did not offend due process.

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

Hancock, Jr., J.

(dissenting). In his appeal, defendant raises fundamental constitutional questions as to whether he may be totally deprived of his right to challenge the validity of a search warrant which he claims the police obtained illegally following an unlawful entry and warrantless search of his residence and for which the police allegedly lacked probable cause. Defendant sought an adversarial hearing before the suppression court in which he could attack the warrant because it was the product of the illegal police entry and search and also because the warrant application and the informational basis were deficient.

The critical question is whether the suppression court could properly deny him all information concerning the basis for the warrant, exclude him and his lawyer from all participation in or knowledge of the secret in-chambers proceedings between the court and the prosecutor, and render only an ex parte determination on the validity of the warrant instead of a decision on the merits after an adversarial adjudication. The majority of this Court holds that in view of alleged danger to the informant these extraordinary measures were warranted and not violative of defendant’s constitutional rights. I disagree.

Depriving a defendant of any participation in or knowledge of a suppression hearing where the issues involve both probable cause and invalidity because of police misconduct is without precedent and, I believe, conflicts with fundamental tenets of fairness and due process of law inherent in our Federal and State Constitutions (see, US Const 4th, 6th, 14th Amends; NY Const, art I, §§ 6, 12; Nardone v United States, 308 US 338, 341). Secret proceedings of this nature in which significant questions materially affecting guilt are decided in the absence and without the knowledge of the defendant or his counsel are repugnant to the concepts "of fair play which have 'evolved through centuries of Anglo-American constitutional history’, particularly as applied to the relationship 'between the individual and the government’ ” (People v Millan, 69 NY2d 514, 519-520 [quoting Anti-Fascist Comm, v McGrath, 341 US 123, 162 (Frankfurter, J., concurring)]). I, therefore, dissent.

I.

In this case, the guilt or innocence of defendant depends entirely on the validity of the warrant the police obtained to search his apartment residence. Defendant claims that on April 5, 1988 — the day before the police obtained the search warrant — three detectives entered the apartment without permission and interrogated his wife at length about defendant and the prior occupant of the apartment. While two of the detectives held his wife in one room, the third detective searched the entire premises. The police subsequently obtained and executed a search warrant for the apartment and defendant was indicted.

Defendant thereafter moved to suppress the evidence and for a disclosure of the warrant application and supporting material. Based on its confidential inspection of these documents and of the minutes of the proceedings before the issuing Magistrate, Supreme Court prohibited defendant from having access to or knowledge of the application and of any related information. Although Supreme Court — after review of the warrant application — acknowledged that defendant’s suppression motion presented a material issue as to the possible taint from an illegal entry, it concluded that that issue, as well as the adequacy of the basis for the warrant, should be determined privately in chambers.

In an in camera and ex parte proceeding, the court, in the presence of the prosecutor, “interviewed” police witnesses and the confidential informant. The court excluded defendant and his counsel from the hearing and barred them from any participation in or knowledge of the proceedings. Thus, defendant was denied his right to confront the witnesses against him, to cross-examine and to adduce affirmative evidence. Moreover, the court refused defense counsel’s request that counsel be permitted to submit questions for the court to ask in his absence (see, People v Darden, 34 NY2d 177, 181, supra) and ordered that defendant and his counsel be prohibited from having any access to the record of the proceedings or to any information or report pertaining thereto. At the close of the hearing, the court concluded, with no explanation of its factual conclusions, that there was an adequate basis for the warrant and that it had not been tainted by police misconduct.

II.

Contrary to what seems to be the premise of the majority’s decision, the principal issue in this case does not involve the propriety of excluding defendant from a hearing pertaining only to the adequacy of the application for the warrant. That determination (see, infra, part III) involves such questions as whether the application was facially consistent, whether the information supplied by the informant was false and whether its inclusion in the police affidavit amounted to perjury or reckless disregard for the truth (see, 1 LaFave and Israel, Criminal Procedure § 3.4, at 224; People v Velez, 147 Misc 2d 865, 868-871).

The suppression court was faced with a second and entirely different factual issue relating to defendant’s attack on the warrant as the product of police misconduct — the classic "fruit of the poisonous tree” determination. Here, the questions did not involve the adequacy of the application but: (1) whether the police had violated defendant’s right to be free from unlawful searches and seizures by entering his home on April 5, 1988 without permission and conducting a search of it without a warrant; and, (2) if so, whether any information secured in the illegal search was in some way transmitted to or used by the police who applied for and obtained the warrant the next day — i.e., " 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint’ ” (Wong Sun v United States, 371 US 471, 488 [quoting Maguire, Evidence of Guilt, at 221]; see also, People v Stith, 69 NY2d 313, 318).

These questions pertain to alleged police misconduct which, if established, would amount to an obvious invasion of defendant’s expectation of privacy and a violation of his constitutional rights of far greater magnitude than that involved in the limited issue of the existence of probable cause for the warrant. At a hearing on police misconduct, defense counsel, had he been permitted to attend, could logically have inquired of the police and of other witnesses including defendant’s wife, if she had been called, about the permission of the police to enter the apartment; what they said to defendant’s wife and what she said to them; where the police went and where defendant’s wife and child were in the apartment after the police entered; whether, as defendant claims, two of the officers detained his wife in one room while a third police officer searched the entire apartment; what, if any, contraband the police discovered in the apartment and where they discovered it; and what, if any, information concerning any such contraband was transmitted to the police who subsequently applied for the search warrant.

To hold, as the majority does, that the police may be charged with a violation of a citizen’s constitutional rights of this gravity and yet not be made to answer for it in a contested hearing defeats the deterrent purpose of the exclusionary rule (see, People v Stith, supra, at 317). Shrouding allegations of police misconduct in secrecy and relying wholly on the police and prosecutor’s account of the facts subvert the application of the exclusionary rule because then prosecutors have the unfair advantage of presenting an unrebutted and untested version of the disputed police actions. As we have noted, "if the People are permitted to use the [improperly] seized evidence, the exclusionary rule’s purpose is completely frustrated, a premium is placed on the illegal police action and a positive incentive is provided to others to engage in similar lawless acts in the future” (People v Bigelow, 66 NY2d 417, 427).

That the traditional concepts of a fair trial and due process are deeply rooted in the adversarial system of resolving factual questions is beyond question. In the words of Justice Frankfurter "[o]urs is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber” (Watts v Indiana, 338 US 49, 54; see generally, Neef and Nagel, The Adversary Nature of the American Legal System from a Historical Perspective, 20 NY L Forum 123,123-126).

The issue here is whether, in lieu of a decision by the suppression court after a contested hearing on the legality of the police conduct, defendant must be content with what amounts to no more than a paternalistic assurance by the court that it has reviewed the facts in chambers and has decided that, although the defendant may believe otherwise, the police "didn’t violate his rights, after all”. The suggestion that a defendant must place his faith entirely in the judgment and perception of a fact finder who, in defendant’s absence, will hear only the prosecution’s side of the police misconduct charge is inimical to any accepted notion of adversarial due process. Given the variations, contrasts and contradictions in testimony inherent in a disputed issue of police misconduct, one can hardly think that, with input only from the prosecution, any Judge — no matter how conscientious — could effectively safeguard the defendant’s fundamental rights as a substitute for "the unique, indispensable presence of at least the 'single-minded counsel for the accused’ ” (People v Darby, 75 NY2d 449, 454 [quoting People v Rosario, 9 NY2d 286, 290]). Nor is the severity of the rights deprivation lessened because two appellate courts, on their review of the in camera proceedings, have pronounced that "there was support for the determination” (majority opn, at 580) of the hearing court on probable cause and "sufficient evidence, that there was no taint” (majority opn, at 587). No amount of appellate review of the proceedings and of the suppression court’s determination can change the record or erase the critical flaw — that the determination concerning defendant’s rights was made on presentation of only one side of the issue, at a hearing from which defendant was excluded, and on information which was kept secret from him. The law does not permit it.

In Alderman v United States (394 US 165), the Supreme Court rejected the Government’s claim that defendants’ challenge to their convictions as tainted by illegal police wiretapping could be conducted ex parte and in camera, stating:

"The United States concedes that when an illegal search has come to light, it has the ultimate burden of persuasion to show that its evidence is untainted * * * With this task ahead of them, and if the hearings are to be more than a formality and petitioners not left entirely to reliance on government testimony, there should be turned over to them the records of those overheard conversations which the Government was not entitled to use in building its case against them * * *
"It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to national security or third-party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally and which it admits, or which a judge would find, is arguably relevant to the evidence offered against the defendant” (id., at 183-184 [emphasis added]).

It is true, of course, that defendants have sometimes been excluded from warrant proceedings when the narrow issues raised pertain to adequacy of the application or probable cause (see, e.g., People v Darden, 34 NY2d 177, supra; People v Goggins, 34 NY2d 163; People v Seychel, 136 Mise 2d 310). The majority, however, assumes, without discussion, that these Darden/Seychel procedures are properly applicable to challenges based on police misconduct and taint (see, majority opn, at 586). But Darden/Seychel procedures are permissible only to address probable cause and Alfinito/Franks challenges. Indeed, the Seychel court recognized that in Goggins and Darden our Court "stressed that such [ ] procedure[s] [are] appropriate only for a probable cause determination” (People v Seychel, supra, at 312). As this Court stated in People v Malinsky (15 NY2d 86):

"The importance of the privilege [of nondisclosure] to successful criminal investigation is self-evident but this does not mean it may be successfully invoked in every case. Of necessity, its 'applicability* is limited by 'fundamental requirements of fairness’ * * * and, accordingly, the privilege may not be availed of, this court wrote in People v.
Coffey * * * when its assertion would seriously prejudice the defense 'by making a fair hearing impossible’ ” (id., at 92).

No one can deny that pretrial suppression hearings may determine the outcome of the prosecution or that full participation and adequate representation by counsel may be as essential to a proper defense then as during the trial itself (see, e.g., United States v Wade, 388 US 218, 225; Powell v Alabama, 287 US 45; United States v Clarke, 475 F2d 240, 245 [2d Cir 1973]; 4 LaFave, Search and Seizure § 11.2 [d], at 245-247 [2d ed]). A hearing to suppress in a drug possession case— where guilt usually depends entirely on the admissibility of the evidence seized — is often the most critical stage in the entire proceeding. While considerations of safety may justify nondisclosure of the informant’s identity and other information in probable cause determinations, as in Darden and Seychel, these considerations do not apply where the issue is whether the police have obtained the evidence in advance of the warrant in outright violation of defendant’s constitutional rights.

III.

If there had been no claim that the warrant was the product of the illegal police conduct on April 5, the suppression court would have had before it only questions relating to the facial adequacy of the warrant application or to issues of the type raised in People v Alfinito (16 NY2d 181) and Franks v Delaware (438 US 154). Had that been the case, I would still dissent.

No authority is cited for excluding the defendant and his counsel from any participation in or knowledge of the proceedings and depriving them of any access to the warrant affidavit or information pertaining to its contents. (See, supra, at 588, n 1.) To mount an Alfinito/Franks challenge, a defendant must point specifically to the portions of the warrant affidavit claimed to be false and meet the burden of proving that the challenged statements are false and that their inclusion in the affidavit constituted perjury or reckless disregard for the truth (see, People v Velez, 147 Misc 2d 865, 870-871, supra; 1 LaFave and Israel, Criminal Procedure § 3.4, at 224). The People have not suggested, nor has anyone, how the defendant here could have questioned the facial validity of the warrant application for consistency or staleness or have singled out specific parts of it and proven them to be false if he could not see the application. Indeed, we reasoned in Malinsky (supra) that:

”[W]here disclosure is demanded by the requirements of a fair trial — where, in other words, to refuse disclosure would completely deprive the defense of the opportunity of showing that there was in truth no reliable informer or, if there was, that his communication to the police was different from that testified to and that, for either of these reasons, the police did not have probable cause to make the arrest — the prosecution must either disclose or run the risk of having the arrest and search held illegal” (id., at 94).

As the court in People v Velez (supra) aptly observed:

"There is no escaping from the clear statement of People v McCall (17 NY2d 152, 159): 'A refusal to permit a defendant to examine the facts upon which his privacy has been broken into amounts to saying that any search warrant * * * is all right if a Judge has seen fit to sign it.’ This is particularly true with respect to an Alfinito/Franks issue, as to which the defense must make specific, factual allegations to merit a hearing on possible affiant perjury. Obvious inconsistencies apparent on the face of the affidavit rarely, if ever, occur. Defense counsel must know the alleged facts so that they may be discussed with, and perhaps contradicted by, the client or other defense witnesses.
"Accordingly, the defense is entitled to at least a 'report’, a la Darden (supra), of what the informant said to provide the basis for the search warrant” (id., at 870-871).

Nothing in People v Darden (supra), People v Seychel (supra) or in any other case sanctions a procedure under which a defendant has been prevented from making any challenge to the issuance of the warrant because the court denied all access to the information necessary for the challenge. As with his thwarted efforts to attack the warrant before the suppression court as resulting from police misconduct, defendant was told "not to worry”, for the court, in its wisdom, in a closed session with the prosecutor, would see to it that his rights were fully protected. I respectfully submit that under our judicial process and our State and Federal Constitutions, the defendant was entitled to more, much more.

Judges Titone, Bellacosa and Smith concur with Acting Chief Judge Simons; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion in which Judge Kaye concurs.

Order affirmed.

      . The majority’s holding today is unprecedented. None of the cases cited by the majority involve the question of whether defendant may be excluded from and deprived of all information pertaining to warrant review proceedings addressing police misconduct and possible taint (see, majority opn, at 583 [citing, e.g., People v Darden, 34 NY2d 177; People v Castro, 29 NY2d 324]). Indeed, none of the cases listed involve the complete exclusion of defendant from any type of warrant review proceeding and the deprivation of all information pertaining to those proceedings (see, id.).

      . Indeed, the People concede that after the in camera review of the warrant application, the court ruled that "there was a valid and material dispute between the parties as to whether the police had entered defendant’s apartment the day before the search warrant was executed and whether that entry, if it was illegal, had tainted the subsequent search conducted pursuant to the warrant”.

      . No case cited by the majority supports the proposition that "an in camera hearing to determine if the [supporting] affidavit contained perjury” (majority opn, at 586) should be undertaken only when the affidavit "appear[s] perjurious on its face” (id. [emphasis added]). It seems evident that the determination on the issues of falsity and whether the police officer has committed perjury or made statements in reckless disregard of the truth will require demonstration of facts outside the affidavit. Indeed, as the Velez court points out, inconsistencies on the face of the affidavit rarely occur (see, People v Velez, supra [quoted infra, at 594]).


author: Kaye, J. Hancock, Jr., J.

text:
    Lawrence J. Brady et al., Appellants, v State of New York et al., Respondents.
    Argued November 18,1992;
    decided December 22, 1992

      POINTS OF COUNSEL

      Kohn, Nast & Graf, P. C. (David H. Weinstein and Robert S.

      Kitchenoff, of the Pennsylvania Bar, admitted pro hac vice, of counsel), Krekstein, Wolfson & Krekstein, P. C. (Scott H. Mus-tin, of the Pennsylvania Bar, admitted pro hac vice, of counsel), and Goodkind, Labaton, Rudofif & Sucharow, New York City, for appellants.
    I. Section 601 (e) of the Tax Law is unconstitutional. (Hardwick v Cuomo, 891 F2d 1097; Brady v State of New York, 172 AD2d 17; St. Louis v The Ferry Co., 11 Wall [78 US] 423; Erie R. R. v Pennsylvania, 153 US 628; Norfolk & W. Ry. Co. v Tax Commn., 390 US 317; Moorman Mfg. Co. v Bair, 437 US 267; ASARCO Inc. v Idaho State Tax Commn., 458 US 307; International Shoe Co. v Washington, 326 US 310; Matter of Franklin Mint Corp. v Tully, 94 AD2d 877, 61 NY2d 980; Matter of Aldens, Inc. v Tully, 70 AD2d 720, 49 NY2d 525.) II. Section 601 (d) of the Tax Law unconstitutionally imposes a tax upon nonresidents’ unearned income derived from outside New York, in violation of due process of law. (Miller Bros. Co. v Maryland, 347 US 340; International Shoe Co. v Washington, 326 US 310; Erie R. R. v Pennsylvania, 153 US 628; St. Louis v The Ferry Co., 11 Wall [78 US] 423; Matter of Franklin Mint Corp. v Tully, 94 AD2d 877, 61 NY2d 980; Matter of Aldens, Inc. v Tully, 70 AD2d 720, 49 NY2d 525.) III. Class certification is the only effective protection for all class members. (Friar v Vanguard Holding Corp., 78 AD2d 83; Brandon v Chefetz, 106 AD2d 162; Ray v Marine Midland Grace Trust Co., 35 NY2d 147; Brady v State of New York, 172 AD2d 17; Matter of Dudley v Kerwick, 84 AD2d 884; Ammon v Suffolk County, 67 AD2d 959; J & A Roofing & Siding Co. v New York State Dept, of Law, 68 AD2d 880; O’Hara v Del Bello, 47 NY2d 363; Davidson v Rochester Tel. Corp., 163 AD2d 800.)

      Robert Abrams, Attorney-General, Albany (Daniel Smirlock, Jerry Boone and Peter H. Schiff of counsel), for respondents.
    I. Tax Law § 601 (e) is constitutional. (Maxwell v Bugbee, 250 US 525; Atlantic & Pac. Tea Co. v Grosjean, 301 US 412; Complete Auto Tr. v Brady, 430 US 274; Commonwealth Edison Co. v Montana, 453 US 609; American Trucking Assns. v Scheiner, 483 US 266; Washington v Yakima Indian Nation, 439 US 463; United States v State of Kansas, 810 F2d 935; Toomer v Witsell, 334 US 385.) II. Use of the unearned income tax to calculate what nonresidents’ 1988 New York tax would be if they were residents does not violate the Due Process Clause. III. Because a class action is not superior to other available methods, class certification was reasonably denied. (Askey v Occidental Chem. Corp., 102 AD2d 130; Matter of Martin v

      Lavine, 39 NY2d 72; Matter of Cotter v State Univ. of N Y, 80 AD2d 166; Duffy v Wetzler, 174 AD2d 253; 78 S. First Hous. Dev. Fund Corp. v Crotty, 150 AD2d 218; Conklin v Town of Southhampton, 141 AD2d 596; Gandolfi v City of Yonkers, 101 AD2d 188, 62 NY2d 995; Matter of Crociata v State Tax Commn., 133 Misc 2d 855; Foss v City of Rochester, 65 NY2d 247.)

      Dowd & Reilly (William F. Dowd, of the New Jersey Bar, admitted pro hew vice, of counsel) and Morrison & Foerster, New York City (Paul H. Frankel, Arthur R. Rosen, Saul Heckelman and Hollis L. Hyans of counsel), for New Jersey State Assembly, amicus curiae.

    I. New York’s method of calculating the income tax payable by a nonresident of New York violates the Privileges and Immunities Clause of the United States Constitution. (Austin v New Hampshire, 420 US 656; Hicklin v Orbeck, 437 US 518; Toomer v Witsell, 334 US 385; Ward v Maryland, 12 Wall [79 US] 418; Mullaney v Anderson, 342 US 415; Travis v Yale & Towne Mfg. Co., 252 US 60.) II. The standard of review under the Privileges and Immunities Clause is a rigorous one because of heightened concern for the integrity of the clause. (Austin v New Hampshire, 420 US 656.) III. Since there is no substantial reason for the discrimination and no reasonable relationship between the reason for enacting section 601 (e) of the Tax Law and the discrimination against nonresidents, section 601 (e) violates the Privileges and Immunities Clause. (Hicklin v Orbeck, 437 US 518; Toomer v Witsell, 334 US 385; Paul v Virginia, 8 Wall [75 US] 168; Brady v State of New York, 172 AD2d 17; Maxwell v Bugbee, 250 US 525; United States v State of Kansas, 810 F2d 935.) IV. Section 601 (e) violates the Due Process Clauses of the United States and New York State Constitutions because it uses a nonresident’s income which is not from New York sources to increase the income tax imposed on a nonresident. (Moorman Mfg. Co. v Bair, 437 US 267; Mobil Oil Corp. v Commissioner of Taxes, 445 US 425; Complete Auto Tr. v Brady, 430 US 274; Spector Motor Serv. v O’Connor, 340 US 602.) V. A class action should be permitted because it is needed to protect the great number of nonresidents of New York discriminated against by section 601 (e) of the Tax Law.
   OPINION OF THE COURT

Kaye, J.

Plaintiffs Lawrence Brady and Barbara Brady are married and reside in New Jersey. Plaintiffs Deborah Labovitz and Judah Labovitz are married and reside in Pennsylvania. At all relevant times, Lawrence Brady and Deborah Labovitz earned income in New York, and Barbara Brady and Judah Labovitz earned income outside New York; in addition, the Labovitzes had a combined adjusted gross income of more than $100,000 and received unearned income from non-New York sources. Both couples filed joint Federal tax returns. Plaintiffs challenge New York’s method of determining the nonresident tax on income earned in New York, whereby New York takes into account both New York and non-New York source income in calculating the tax rate to be applied to the New York income.

The laws at issue are Tax Law § 601 (d) and (e), sections of the Tax Reform and Reduction Act of 1987 (L 1987, ch 28) (TRARA). Under Tax Law § 601 (e) (1), the tax of a nonresident is first calculated "as if [the taxpayer] were a resident.” Thus, the nonresident’s tax base (as that term is used by the parties) is determined by applying the appropriate graduated rate in Tax Law § 601 (a) through (c) to the taxpayer’s total income from all sources (less any statutory deductions, exemptions or credits [Tax Law §§ 606, 611 (a)]). The taxpayer’s total income is derived from "New York adjusted gross income” (Tax Law § 611 [a]), which is determined by reference to the taxpayer’s "federal adjusted gross income” (Tax Law § 612 [a]).

Residents pay their entire tax base. For nonresidents, however, the amount is reduced by the percentage of income earned in New York compared to total income (Tax Law § 601 [e] [1]). Therefore, while residents and nonresidents with the same total income are taxed at the same rate, the nonresident pays tax only on the percentage of income attributable to New York.

Assuming, for example, an effective tax rate of 6% for incomes of $25,000 or less, and an effective tax rate of 7% for incomes above $25,000, a resident with total income of $50,000 would have a tax base of $3,500 and would pay that amount. So would a nonresident with the same income entirely attributable to New York sources. However, a nonresident with $25,000 of New York income and $25,000 of non-New York income, while having the same $3,500 tax base, would pay half that amount — $1,750—because only half of the income would be subject to the New York tax.

In addition, in 1988 only, the taxpayer’s effective rate was increased with reference to unearned income if the taxpayer had New York adjusted gross income over $100,000 (Tax Law § 601 [d]). Thus, the hypothetical resident taxpayer with a total 1988 income of $110,000, including total unearned income of $10,000 from non-New York sources, would have an initial tax base of $7,700. That tax base would be increased by $20, which is derived by multiplying $10,000 by 2% and then multiplying the resulting figure of $200 by (110,000-100,000)/ 100,000. A resident with such income would be liable for a tax of $7,720. A nonresident, however, would pay only $7,025, since the nonresident’s tax base would be apportioned by the percentage of New York income (here 100,000/110,000 or 91%).

Plaintiffs challenge this tax scheme, complaining that New York unconstitutionally disadvantages nonresidents. They urge us not to compare residents and nonresidents of the same total income, but to look only to New York income in reviewing the legality of the tax rate. Thus, plaintiffs argue, the same tax rate must apply to a resident with total income of $25,000 and a nonresident with New York income of $25,000, regardless of the nonresident’s total income reported on the tax return.

Plaintiffs seek a declaration, for themselves and a class of similarly situated persons, that these provisions violate due process because presumably higher taxes arising from higher tax rates demonstrate that New York is in effect impermissibly taxing out-of-State income. They also claim the scheme violates the constitutional Privileges and Immunities and Equal Protection Clauses since a New York resident having no income other than New York earnings may pay a lower tax than a nonresident with the same New York earnings who has additional income from other sources.

Supreme Court denied plaintiffs’ motion for class certification and granted defendants’ motion for summary judgment dismissing the complaint. The Appellate Division modified by declaring Tax Law § 651 (b) (2) unconstitutional and remitting for further proceedings on that issue, but otherwise affirmed. On plaintiffs’ appeal from the Appellate Division order, we now affirm.

I.

Plaintiffs first claim that by setting tax rates with reference to adjusted gross income, New York taxes non-New York income, thus taking property in violation of due process. They point to three instances: (1) income of the nonresident taxpayer earned outside New York and included on the taxpayer’s Federal return; (2) income of the nonresident spouse earned outside New York and included on the taxpayer’s joint Federal return; and (3) for 1988 only, unearned out-of-State income referenced for purposes of the section 601 (d) surcharge on those with a total adjusted gross income over $100,000. Each of these is included in the tax base solely for purposes of rate determination. Thus, the inquiry with respect to each category is the same: in these circumstances, is out-of-State income being impermissibly taxed?

We start with the proposition that legislative enactments enjoy a presumption of constitutionality (Montgomery v Daniels, 38 NY2d 41, 54). States, of course, have the power to tax nonresidents on income derived from sources within their borders (Travis v Yale & Towne Mfg. Co., 252 US 60, 75; Shaffer v Carter, 252 US 37, 52). Similarly, progressive tax systems, which apportion the tax burden based on the taxpayer’s ability to pay, are unquestionably constitutional (Brushaber v Union Pac. R. R., 240 US 1, 25), and indeed are "widespread among the United States and firmly imbedded in the federal tax structure” (Wheeler v State, 127 Vt 361, 365, 249 A2d 887, 890, appeal dismissed for want of a substantial Federal question 396 US 4).

It has long been the rule that States may refer to nontaxable out-of-State assets in setting their rates for taxable assets (see, Atlantic & Pac. Tea Co. v Grosjean, 301 US 412; Maxwell v Bugbee, 250 US 525). Maxwell involved a New Jersey inheritance tax that required the inclusion of the entire estate of the decedent, wherever located, to determine the rate by which the New Jersey property would be taxed. The actual tax was calculated, as here, by applying the rate applicable to the entire estate, but then reducing the tax to reflect only the percentage of the estate located in New Jersey. The United States Supreme Court found the statute constitutional, holding:

”[T]he subject-matter here regulated is a privilege to succeed to property which is within the jurisdiction of the State. When the State levies taxes within its authority, property not in itself taxable by the State may be used as a measure of the tax imposed * * * In the present case the State imposes a privilege tax, clearly within its authority, and it has adopted as a measure of that tax the proportion which the specified local property bears to the entire estate of the decedent * * * It is in no just sense a tax upon the foreign property.” (Id., at 539.)

Similarly, in Grosjean, the Supreme Court upheld a Louisiana license tax on in-State chain stores that was calculated on the basis of the taxpayer’s nationwide operation, stating ”[i]n legal contemplation the state does not lay a tax upon property lying beyond her borders” (id., at 425).

Since Maxwell and Grosjean, high courts in other States have upheld tax schemes similar to the one at issue here. (See, Stevens v State Tax Assessor, 571 A2d 1195 [Me], cert denied 498 US 819; Wheeler v State, 127 Vt 361, 249 A2d 887, supra; cf, United States v State of Kansas, 810 F2d 935 [10th Cir] [upholding validity of including nonresident military income— which was not taxable by State — in determining State tax rate]; Aronov v Secretary of Revenue, 323 NC 132, 371 SE2d 468 [upholding requirement that nonresident taxpayer reduce net operating loss from North Carolina partnership by amount of out-of-State income], cert denied 489 US 1096.)

As in Stevens and Wheeler, the subject matter here regulated is a tax on in-State income, which is within the jurisdiction of the State. When the State levies taxes within its authority, "property not itself taxable can be used as a measure of the tax imposed on property within the state and * * * to do so is 'in no just sense a tax on the foreign property.’ ” (United States v State of Kansas, 810 F2d, at 938, supra [quoting Maxwell v Bugbee, 250 US, at 539, supra].)

Plaintiffs’ contention that Maxwell and Grosjean have been superseded by Supreme Court cases dealing with business taxation and interstate commerce is without basis. Those cases address the constitutionality of directly taxing multistate corporate income, which turns upon whether such income is attributable to a "unitary” business with a sufficient nexus in the taxing State to justify the exercise of the State’s taxing authority. In Allied-Signal, Inc. v Director, Div. of Taxation (504 US —, 119 L Ed 2d 533 [June 15, 1992]), for example, the issue was whether New Jersey could tax the capital gain realized by a non-New Jersey company on the sale of a New Jersey company. Similarly, Complete Auto Tr. v Brady (430 US 274) and its progeny address whether a State can tax interstate corporate income in exchange for the privilege of carrying on its business. As even the dissent acknowledges (dissenting opn, at 606, n 1), neither line of cases controls the present issue. Here, there is no question about which of the jointly reported income is taxable and which not; the question is how to determine the rate on income clearly subject to New York tax.

Thus, plaintiffs’ due process challenge was correctly rejected by the courts below.

II.

Plaintiffs’ alternative contention — an undifferentiated argument under the constitutional Privileges and Immunities and Equal Protection Clauses — also was properly rejected: TRARA treats similarly situated residents and nonresidents the same.

The Privileges and Immunities Clause of the United States Constitution was designed " 'to place the citizens [including residents] of each State upon the same footing with citizens [and residents] of other States, so far as the advantages resulting from citizenship in those States are concerned.’ ” (Supreme Ct. of Va. v Friedman, 487 US 59, 64, quoting Paul v Virginia, 8 Wall [75 US] 168, 180; see also, Austin v New Hampshire, 420 US 656.) Pursuit of an occupation outside one’s home State is certainly a right protected by this clause (see, Hicklin v Orbeck, 437 US 518, 524-525; Austin v New Hampshire, 420 US 656, supra; Toomer v Witsell, 334 US 385, 396). However, to establish an unwarranted burden on their privileges and immunities, plaintiffs must demonstrate disadvantage as against others in a similar position (Stevens v State Tax Assessor, 571 A2d, at 1197, supra; Wheeler v State, 249 A2d, at 891, supra). This they have failed to do. (Compare, Austin v New Hampshire, 420 US 656, supra [taxing nonresidents but not residents violates privileges and immunities]; Spencer v South Carolina Tax Commn., 281 SC 492, 316 SE2d 386 [statute that denied certain deductions only to nonresidents violated privileges and immunities], affd, by an equally divided court 471 US 82.)

Plaintiffs would have us compare them to New York residents with a total income equivalent to plaintiffs’ New York income alone. Plaintiffs would urge, for example, that a nonresident earning $20,000 in New York, but with reported income of $100,000, should be taxed at the same rate as a resident with an income of $20,000. But plaintiffs’ hypothetical taxpayers are not similarly situated in terms of ability to pay. Similarly situated taxpayers are those with the same total income.

Again, plaintiffs have failed to establish that the challenged tax is unconstitutional.

III.

Plaintiffs’ real quarrel, in the end, is with the graduated tax. A system of progressive taxation apportions the tax burden based on ability to pay — higher income taxpayers can pay more and are therefore taxed at a higher rate than lower income taxpayers. This system does not implicate the State or Federal Constitution so long as the rates are applied, as here, in a nondiscriminatory manner and only to taxable New York income.

Finally, we note that the dissent is flawed not only in its reliance on recent Supreme Court decisions dealing with corporate tax, but also in its claim to logic, common sense and economic reality. In fact, those considerations — as well as precedent — support the challenged tax, which has the practical effect of equalizing tax rates among persons whose total incomes, as reported to taxing authorities, are the same.

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

Hancock, Jr., J.

(dissenting). No State may impose a tax on income earned outside of the State by a nonresident. That is settled constitutional law. Under the statute at issue, New York considers income earned outside of the State for purposes of determining the rate at which it will tax a nonresident’s New York income. Because New York has a progressive tax rate structure, the result of including the out-of-State income is a higher tax rate and a higher tax on the New York income. The question in this case is whether by considering the nontaxable out-of-State income in determining the tax rate on the New York income, the State is, in reality, taxing the out-of-State income and doing indirectly what it cannot do directly.

The answer to the question, of course, is the one dictated by logic and common sense: the State is taxing the outside income. Including it results in a higher tax bracket and the nonresident pays more tax on the New York income. But, the State maintains that this is not so. There is a distinction, it says, which "is straightforward and obvious. State taxes on nonresidents may be measured by income outside the State as long as they are not imposed upon such income” (respondents’ brief, at 17 [emphasis added]).

While the claimed distinction between taxing out-of-State income and using it as a measure of the tax that is ultimately imposed hardly seems "straightforward” or "obvious”, my colleagues are apparently content with it and find satisfactory precedent in two decisions of the Supreme Court — one handed down 73 years ago, Maxwell v Bugbee (250 US 525), and the other 55 years ago, Atlantic & Pac. Tea Co. v Grosjean (301 US 412). I believe that these decisions do not control this case. They do not reflect the Supreme Court’s express rejection of labelling and formalism and its adoption instead of economic reality as the current approach to problems involving State taxation of out-of-State income of nonresidents (see, e.g., Mobil Oil Corp. v Commissioner of Taxes, 445 US 425, 440-441; Complete Auto Tr. v Brady, 430 US 274, 279). For this reason, I respectfully dissent.

The case of Maxwell v Bugbee (250 US 525, supra) — the basis of the Attorney-General’s "straightforward and obvious” distinction between measuring a tax on out-of-State income and taxing out-of-State income — was decided in 1919 by a vote of five to four. The Maxwell majority, adopting the more formalistic approach of that time, dismissed the due process objection to the inclusion of out-of-State property in determining the tax on the privilege of transferring property within the State. It simply announced, without explanation of its reasoning, that the inclusion of the out-of-State property does not result in a tax on it, but "merely affords a measure of the tax imposed” (Maxwell v Bugbee, supra, at 535).

The soundness of the Maxwell decision has been questioned by the Court itself (see, Frick v Pennsylvania, 268 US 473, 495 [Maxwell "is on the border line, as is evidenced by the dissent of four members of the Court”]; see also, Hellerstein, Some Reflections on the State Taxation of a Nonresident’s Personal Income, 72 Mich L Rev 1309, 1317, n 53 [Maxwell riddled with "dubious logic”]; Lowndes, Rate and Measure in Jurisdiction To Tax — Aftermath of Maxwell v. Bugbee, 49 Harv L Rev 756, 770 [it is difficult "to imagine anything more iniquitously unfair than the application of the Maxwell v. Bugbee formula to income taxation”]).

Justice O. W. Holmes, Jr., viewing the substance of the statute in Maxwell and its effect on the taxpayer with the frank realism for which he was noted, dissented. Joined by Chief Justice White and Justices VanDevanter and McReynolds, Justice Holmes wrote:

"It seems to me that when property outside the State is taken into account for the purpose of increasing the tax upon property within it, the property outside is taxed in effect, no matter what form of words may be used. It appears to me that this cannot be done, even if it should be done in such a way as to secure equality between residents in New Jersey and those in other States” (Maxwell v Bugbee, supra, at 544 [emphasis added]).

Consistent with Justice Holmes’ pragmatic approach, in the past half century, the Supreme Court has moved away from its earlier reliance on the Maxwell-type of formalism and embraced a method of analysis based on "the practical effect of a challenged tax” (Mobil Oil Corp. v Commissioner of Taxes, supra, at 443) and on "economic realities” rather than "formal phrasing” (Complete Auto Tr. v Brady, supra, at 278-280 [overruling Spector Motor Serv. v O’Connor, 340 US 602, which had deemed "irrelevant any consideration of the practical effect of the tax” (430 US, at 278)]; see also, Allied-Signal, Inc. v Director, Div. of Taxation, 504 US —, —, 119 L Ed 2d 533, 545-546; ASARCO Inc. v Idaho State Tax Commn., 458 US 307, 319; Exxon Corp. v Wisconsin Dept, of Revenue, 447 US 207, 223-224; Wisconsin v J. C. Penney Co., 311 US 435, 444).

If the tax in question is analyzed with the candor employed by Justice Holmes in his Maxwell dissent and by the Supreme Court in its recent decisions, there can be no question that the practical effect of including out-of-State income for the purpose of increasing the rate on the in-State income is a tax on the out-of-State income. The majority does not dispute this proposition. Instead, it cites State cases, which, with no explication, have accepted the Maxwell procedure of deciding by labelling (see, majority opn, at 603 [citing Stevens v State Tax Assessor, 571 A2d 1195 (Me); Wheeler v State, 127 Vt 361, 249 A2d 887]). That Vermont and Maine have cited Maxwell with approval, of course, does not mean that the decision is regarded with favor by the Supreme Court. The Vermont Supreme Court, it should be noted, decided Wheeler in 1969, prior to the Supreme Court cases expressly renouncing the formalistic approach. In Stevens, the Supreme Court of Maine merely followed Wheeler in its uncritical acceptance of Maxwell. Whether the Court will again resort to the Maxwell-type of labelling in order to uphold a taxing scheme — where out-of-State income of the taxpayer and the taxpayer’s spouse is used to increase the tax on the taxpayer’s in-State income— only the Supreme Court can tell us. If the answer should be "yes”, then I respectfully submit that the answer would be inimical to Justice Holmes’ commonsense appraisal of the tax in Maxwell and to the Court’s recent method of analyzing State taxation due process problems by looking at the practical effect and the economic realities rather than "formal phrasing” (Complete Auto Tr. v Brady, supra, at 280; see, e.g., Mobil Oil Corp. v Commissioner of Taxes, supra, at 443). A statute which includes out-of-State income of the taxpayer and the taxpayer’s spouse for the purpose of increasing the tax on the in-State income and which results in such increase imposes a tax on the out-of-State income in violation of the Due Process Clause — no matter how the tax is described. To pretend that it does not endorses a due process violation and works a distinct unfairness on taxpayers such as the New Jersey and Pennsylvania residents in this case.

Judges Titone, Bellacosa and Smith concur with Judge Kaye; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion; Acting Chief Judge Simons taking no part.

Order affirmed, etc.

      . In the trial court and Appellate Division, plaintiffs also challenged Tax Law § 651 (b) (2), which required married nonresidents to file a joint nonresident tax return in New York if they filed a joint Federal return. The Appellate Division found this provision unconstitutional, as it exposed a nonresident spouse with no New York connections to civil and criminal liability in New York by virtue of that spouse’s signature on the State tax return. The State has not appealed that determination. The question before us — whether in fixing the tax rate, New York can refer to spousal income included in the total adjusted gross income on the couple’s joint Federal return — is unaffected by that holding.

      . Our decision on the merits renders it unnecessary to address the denial of class action status insofar as it relates to the claims at issue on this appeal. With respect to the Appellate Division’s determination that section 651 (b) (2) is unconstitutional — which is not before us on the merits —both the motion court and the Appellate Division found plaintiffs had not met their burden of establishing that the proposed class action would be the superior method for determining the controversy, pointing particularly to notification burdens weighed against speculative allegations of injury to the putative class. We see no reason to overturn that conclusion.

      . Dismissal for want of a substantial constitutional question operates as a decision on the merits (see, Washington v Yakima Indian Nation, 439 US 463, 476, n 20).

      . That these cases address the extraterritorial reach of corporate taxes, as the majority notes (majority opn, at 604), is of no moment. Their significance for present purposes is not their specific holdings but the methodology employed by the Court in analyzing the statutes: i.e., looking to the practical effect and economic realities of the tax in issue.

      . Atlantic & Pac. Tea Co. v Grosjean (301 US 412, supra), involving a chain store tax based on the total number of stores in the chain, is cited by the majority but is not discussed in the opinion. It adds nothing to the argument (see, Hellerstein, Some Reflections on the State Taxation of a Nonresident’s Personal Income, 72 Mich L Rev 1309, 1317, n 53 [Grosjean "may be viewed as a case primarily involving the states’ police power to regulate the growth of chain stores”]).

      . See, e.g., Holmes, The Path of the Law, 10 Harv L Rev 457; Summers, Pragmatic Instrumentalism in Twentieth Century American Legal Thought, 66 Cornell L Rev 861, 866-869; Frank, Mr. Justice Holmes and Non-Euclidean Legal Thinking, 17 Cornell LQ 568; Hantzis, Legal Innovation Within the Wider Intellectual Tradition: The Pragmatism of Oliver Wendell Holmes, Jr., 82 Nw U L Rev 541; Lyons, Legal Formalism and Instrumentalism — A Pathological Study, 66 Cornell L Rev 949 (Professor Lyons writes, at 949: "Holmes and those who followed in his wake believed they were rejecting a rigid and impoverished conception of the law [often called 'formalism’] which had, in their view, adversely affected judicial practice. They spawned a collection of doctrines that Professor Summers dubs 'pragmatic instrumentalism’ — fittingly so-called both because they viewed the law as an eminently practical instrument and because they were so strongly influenced by the philosophical pragmatists William James and John Dewey”).

      . Indeed, the decision in Wheeler does not address the issue of whether out-of-State income is a permissible consideration in setting the rate of tax on in-State income (see, Hellerstein, Some Reflections on the State Taxation of a Nonresident’s Personal Income, 72 Mich L Rev 1309,1318). The decision, as far as4t concerned due process, addressed only whether Vermont had in fact taxed Wheeler’s out-of-State income.

      . Avoiding a due process challenge by proclaiming that the statute "merely affords a measure of the tax imposed” as in Maxwell is the sort of formalism in decision-making which the Court repudiated in J. C. Penney: "|T]he descriptive pigeon-hole into which a state court puts a tax is of no moment in determining the constitutional significance of the exaction. 'In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect.’ Henderson v. Mayor of New York, 92 U. S. 259, 268. Such has been the repeated import of the cases which only recently were well summarized by the guiding formulation for adjudicating a tax measure, that 'in passing on its constitutionality we are concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it.’ Lawrence v. State Tax Commission, 286 U. S. 276, 280” (Wisconsin v J. C. Penney Co., 311 US, at 443-444, supra).