author: Simons, J.

text:
    [666 NE2d 207, 643 NYS2d 502]
    The People of the State of New York, Respondent, v Jose Ramirez-Portoreal, Appellant. The People of the State of New York , Appellant, v Alberto Sanchez, Respondent. The People of the State of New York, Appellant, v John Mims, Respondent.
    Argued March 26, 1996;
    decided May 2, 1996

      POINTS OF COUNSEL

      Castillo & Siegel, Albany (Gaspar M. Castillo Jr. and Thomas J. Neidl of counsel), for appellant in the first above-entitled action.
    I. The decision of the Court below that defendant lacked standing to contest the search of his luggage and reversing the hearing court’s decision was error. (People v Ponder, 54 NY2d 160; People v Tejada, 81 NY2d 861; People v Whitfield, 81 NY2d 904; People v Rodriguez, 69 NY2d 159; People v De Bour, 40 NY2d 210; People v Hollman, 79 NY2d 181; People v Cantor, 36 NY2d 106.) II. The search and seizure of defendant’s luggage cannot be justified on a theory of abandonment because the police conduct in questioning defendant was illegal in that there was no reasonable suspicion that criminality was afoot and in any event defendant’s denial of ownership of the luggage was a spontaneous reaction to a sudden and unexpected confrontation with the police. (People v De Bour, 40 NY2d 210; People v Hollman, 79 NY2d 181; People v Cirrincione, 206 AD2d 833; People v Irizarry, 79 NY2d 890; Matter of Antoine W., 79 NY2d 888; People v Bordeaux, 182 AD2d 1095; People v Martinez, 206 AD2d 693; People v Bailey, 204 AD2d 751; Terry v Ohio, 392 US 1; People v Owens, 206 AD2d 303.)

      Sol Greenberg, District Attorney of Albany County, Albany (Christopher D. Horn of counsel), for respondent in the first above-entitled action.
    I. Under CPL 450.90 and the Constitution of the State of New York, this Court has no authority to review the determination of the Court below which was based, at least in part, upon new findings of fact. (People v Hogya, 56 NY2d 602; People v Whitfield, 81 NY2d 904; People v Albro, 52 NY2d 619; People v Gruttola, 43 NY2d 116; Hedeman v Fairbanks, Morse & Co., 286 NY 240; People v Battaglia, 86 NY2d 755; Matter of Gissette Angela P., 80 NY2d 863.) II. The Court below properly determined that defendant lacked standing to challenge the search of the subject bag. (People v Whitfield, 81 NY2d 904; People v Rodriguez, 69 NY2d 159; People v Ponder, 54 NY2d 160; Simmons v United States, 390 US 377; People v Wesley, 73 NY2d 351; Jones v United States, 362 US 257; People v Hansen, 38 NY2d 17; Rakas v Illinois, 439 US 128; Rawlings v Kentucky, 448 US 98; United States v Salvucci, 448 US 83.) III. The police conduct was in all respects proper thus, even if defendant had standing to contest the search, suppression of the evidence seized is not warranted. (People v Hollman, 68 AD2d 259, 79 NY2d 181; People v De Bour, 40 NY2d 210; People v Hanson, 195 AD2d 408; People v Ocasio, 85 NY2d 982; People v Osborne, 194 AD2d 427; People v Jacob, 202 AD2d 444; People v Howard, 50 NY2d 583, 449 US 1023.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Patrick J. Hynes of counsel), for appellant in the second above-entitled action.
    Defendant did not have a legitimate expectation of privacy in the exhaust pipe of a van with which he was utterly unconnected except that he had wrongfully appropriated it as a hiding place for drugs; his motion to suppress cocaine removed from the exhaust pipe by the police should therefore have been denied. (People v Gomez, 67 NY2d 843; People v Wesley, 73 NY2d 351; Rakas v Illinois, 439 US 128; People v Rodriguez, 69 NY2d 159; Alderman v United States, 394 US 165; Jones v United States, 362 US 257; People v Hansen, 38 NY2d 17; Simmons v United States, 390 US 377; United States v Salvucci, 448 US 83; People v Ponder, 54 NY2d 160.)

      Joel M. Stein, New York City, and Andrea G. Hirsch for respondent in the second above-entitled action.
    Respondent had a reasonable expectation of privacy in a package which he secreted out of public view in the tailpipe of a parked automobile and stood several feet away, when the police, immediately thereafter, stopped him without any inquiry and seized the package. (People v Howard, 50 NY2d 583; People v Kelly, 172 AD2d 458, 79 NY2d 899; People v Holmes, 81 NY2d 1056; People v Reyes, 83 NY2d 945; People v Hogya, 56 NY2d 602; People v Hollman, 79 NY2d 181; People v Harrison, 57 NY2d 470; People v Ortiz, 83 NY2d 840; People v Ponder, 54 NY2d 160; United States v Salvucci, 448 US 83.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Aytan Y. Beilin and Paul Harnisch of counsel), for appellant in the third above-entitled action.
    I. Defendant lacked standing to contest the seizure of the bag containing crack which he had left across the street in a crushed cardboard box atop a pile of garbage. (People v Wesley, 73 NY2d 351; People v Rodriguez, 69 NY2d 159; People v Ponder, 54 NY2d 160; People v Mendoza, 82 NY2d 415; People v Gomez, 67 NY2d 843; People v Taylor, 97 AD2d 381; People v Coleman, 82 NY2d 415; Rakas v Illinois, 439 US 128; United States v Salvucci, 448 US 83; Rawlings v Kentucky, 448 US 98.) II. Officers Lott and Fleming both had probable cause to arrest defendant and seize the physical evidence. (People v Parris, 83 NY2d 342; People v Rosario, 78 NY2d 583, 502 US 1109; People v Petralia, 62 NY2d 47, 469 US 852; People v Benzinger, 36 NY2d 29; People v Connolly, 253 NY 330; People v Ferro, 63 NY2d 316, 472 US 1007; United States v Woods, 544 F2d 242, cert denied sub nom. Hurt v United States, 429 US 1062; United States v Cruz, 834 F2d 47, 484 US 1077; United States v Lomas, 706 F2d 886, cert denied sub nom. Margolis v United States, 464 US 1047; United States v Bernard, 623 F2d 551.)

      Martin M. Lucente, New York City, and Daniel L. Greenberg for respondent in the third above-entitled action.
    The record below supports the lower courts’ findings that respondent had a reasonable expectation of privacy in the closed bag searched by the police, which he did not relinquish, and that the People failed to present evidence establishing that the observing officer had transmitted his information to the arresting officer or issued a directive to arrest respondent; and, consequently, since these determinations were based on well-settled legal standards, the order of the Court below affirming the lower court’s grant of suppression should be affirmed. (People v Carmona, 208 AD2d 369, 85 NY2d 960; People v Mitchell, 185 AD2d 163, 81 NY2d 819; People v Kelly, 172 AD2d 458, 79 NY2d 899; People v McNally, 58 NY2d 1029; People v Harrison, 57 NY2d 470; People v Whitfield, 81 NY2d 904; People v Smith, 59 NY2d 454; People v Gokey, 60 NY2d 309; Matter of Marrhonda G., 81 NY2d 942; People v Pacheco, 107 AD2d 473, 67 NY2d 631.)
   OPINION OF THE COURT

Simons, J.

Defendants in these three unrelated appeals have been arrested and prosecuted for various counts of criminal possession of drugs. Prior to their arrests, each had deposited or hidden drugs in a public place and they challenged the legality of the police actions in seizing them. The questions raised are whether, in such circumstances, a defendant has standing to challenge the legality of the police conduct and whether the alleged "abandonment” of the property affects the right to do so. Defendant Mims also successfully claimed that he was arrested without probable cause. The arrest was unlawful, he says, because there was insufficient evidence to warrant the imputation of knowledge from one law enforcement officer to the other under the "fellow officer” rule.

For the reasons which follow we reverse all three orders.

I. People v Ramirez-Portoreal

On June 10, 1992, three law enforcement officers were on a drug interdiction assignment at the bus terminals in the City of Albany. Sheriff’s Investigator Matthew Campbell testified at the suppression hearing that he, Inspector John Burke and Detective Jimmy Tuffy were looking for drug couriers travel-ling from New York City, through Albany, to points west. The three plainclothes officers, with their badges prominently displayed, were seated on a loading platform observing bus passengers. Defendant Ramirez-Portoreal and two companions arrived on a bus from New York City. When they alighted, defendant was carrying a single piece of luggage; his companions carried none. One of defendant’s companions noticed the officers, and the three travelers immediately boarded a westbound bus and took seats in different parts of it. Before sitting, defendant placed the bag he carried in an overhead luggage compartment located one row béhind his seat and across the aisle from it.

The three officers boarded the bus, identified themselves and announced that they were conducting "drug interdiction.” They asked all passengers to show their tickets and identification. Defendant produced a ticket but no identification. When Burke asked him whether he had any luggage aboard the bus, he replied that he did not. When asked whether the bag that the officers had seen him place in the luggage rack was his, defendant denied ownership of it. Inspector Burke then asked the bus passengers as a group whether the bag belonged to anyone, and whether anyone objected to his opening it to learn its ownership. None of the passengers responded. Upon opening the bag, the officer discovered a glossine bag containing dime bags of heroin. Defendant and his companions were removed from the bus and arrested. A further search of the bag revealed a quantity of marihuana.

County Court concluded that Ramirez-Portoreal had standing to challenge the police conduct, and that he had not abandoned the bag. Applying the tiered analysis of People v De Bour (40 NY2d 210), the court determined that the officer’s questions regarding ownership of the bag constituted a common-law inquiry which was made without a founded suspicion of criminality to support that level of intrusion. Accordingly, the court concluded that the search of the bag was improper and granted defendant’s motion to suppress the physical evidence. The Appellate Division reversed. It concluded that the evidence at the suppression hearing revealed no more than defendant’s possessory interest in the bag, particularly in light of his denial of ownership of it, and decided that defendant had failed to establish standing (see, 214 AD2d 830). Defendant appeals.

People v Sanchez

Testimony at the suppression hearing established that on March 1, 1993, an undercover officer in a drug-prone location in Manhattan observed defendant Sanchez surreptitiously place a light brown "package,” which bore the characteristics of narcotics packaged for street sale, into the exhaust pipe of a parked van. After placing the drugs there, the defendant walked several feet away but did not leave the immediate area. Two other officers, acting on the undercover’s radio transmission, approached defendant and identified themselves. They told him not to move and immediately conducted a safety "pat-down.” The undercover officer directed one of the backup officers to remove the package from the exhaust pipe. When the officer did so, he recovered 10 small, pink baggies containing cocaine and held together by masking tape.

Criminal Court granted defendant’s motion to suppress the drugs. It did not expressly consider whether defendant had established standing to challenge the police conduct. Addressing only the issue of defendant’s abandonment of the package, it determined that he had not abandoned the property when he secreted it in the exhaust pipe of the van. Finding the police conduct illegal, the court granted defendant’s motion to suppress the physical evidence. The Appellate Term held that defendant’s standing was established by the fact that he had actually possessed the package moments before being detained and that he remained close to it at all times. It concluded that the circumstances did not justify a police intrusion any greater than an initial stop and inquiry of defendant, and it therefore affirmed the lower court. The People appeal.

People v Mims

Police Officer Brian Fleming testified at the suppression hearing that on September 27, 1991, he and Officer Edward Lott were stationed on the roof of a building in northern Manhattan. While Officer Fleming used binoculars to observe defendant Mims on the sidewalk on the north side of 154th Street, Officer Lott stood guard to make sure no one approached from the rear. Lott did not observe the scene below. Fleming saw two people approach and give defendant currency in exchange for green-topped vials. Moments later, another pair approached defendant. After a brief conversation, defendant crossed to the south side of 154th Street and reached into a cardboard box that was among a pile of boxes and garbage. He pulled a paper bag from the box, withdrew unidentified items from the bag, replaced the bag in the box, and returned to the other side of the street. Again, Fleming saw defendant conduct what appeared to be a drug sale.

Officers Fleming and Lott left the roof, got into their patrol car and drove around the block onto 154th Street to Mims’ location. When they got out of the car, Lott detained defendant while Fleming went to retrieve the paper bag from the box in the trash pile. Fleming looked inside the bag and found 18 green-capped vials of crack cocaine. He then recrossed the street, searched defendant and recovered $130 from defendant’s pocket. Lott found another green-capped vial on the ground near defendant.

Defendant moved to suppress the evidence and after a hearing Supreme Court granted the motion and dismissed the indictment. The court concluded that defendant had not abandoned the bag of crack vials, and that he therefore had standing to contest Officer Fleming’s recovery of the bag. On the merits, the court found that while Officer Fleming possessed probable cause to arrest defendant, Officer Lott did not because the People had failed to present direct evidence of any communication from Fleming to Lott. Accordingly, it determined that Lott’s arrest of defendant was not supported by probable cause and all the evidence was suppressed because it had been seized as incident to an illegal arrest. A divided Appellate Division held that defendant’s conduct in maintaining "control” over the paper bag in the garbage served to confer upon him standing to contest the search of it, and that the People had failed to establish that he had abandoned his property. It further concluded that Supreme Court had not erred in finding the evidence insufficient to establish Officer Lott’s probable cause (205 AD2d 78). The People appeal.

II.

A defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched (People v Wesley, 73 NY2d 351, 358-359; People v Reynolds, 71 NY2d 552, 557; People v Rodriguez, 69 NY2d 159; People v Ponder, 54 NY2d 160; see, Rawlings v Kentucky, 448 US 98, 106; United States v Salvucci, 448 US 83; Rakas v Illinois, 439 US 128; Katz v United States, 389 US 347; see generally, 5 LaFave, Search and Seizure § 11.3 [3d ed]). Once defendant has established standing, it becomes the People’s burden to demonstrate that defendant’s action in discarding the property searched, if that is the fact, was a voluntary and intentional act constituting a waiver of the legitimate expectation of privacy (see, People v Howard, 50 NY2d 583, 593, cert denied 449 US 1023).

A.

A legitimate expectation of privacy exists where defendant has manifested an expectation of privacy that society recognizes as reasonable (People v Reynolds, 71 NY2d, at 557, supra; California v Greenwood, 486 US 35, 39-40; see also, Oliver v United States, 466 US 170). Thus, the test has two components. The first is a subjective component — did defendant exhibit an expectation of privacy in the place or item searched, that is, did he seek to preserve something as private (see, Smith v Maryland, 442 US 735, 740). The second component is objective — does society generally recognize defendant’s expectation of privacy as reasonable, that is, is his expectation of privacy justifiable under the circumstances (see, id., at 740-741; see, e.g., People v Mercado, 68 NY2d 874, 876, cert denied 479 US 1095).

Standing to challenge a search is not established by asserting a possessory interest in the goods seized — defendant must assert a privacy interest in the place or item searched (see, People v Rodriguez, 69 NY2d, at 163, supra; People v Ponder, 54 NY2d, at 166, supra; United States v Salvucci, 448 US 83, supra; Rawlings v Kentucky, 448 US, at 106, supra). However, constitutional protections against unreasonable searches and seizures are not limited to private premises (see, e.g., People v Mercado, supra), and a person may have a legitimate expectation of privacy in an item or container such as a suitcase or bag which was the object of the search and the "place” from which the contraband was seized (see, People v Gokey, 60 NY2d 309, 312; People v Smith, 59 NY2d 454, 458; see also, New York v Belton, 453 US 454, 461; United States v Chadwick, 433 US 1). Accordingly, and particularly in cases where the search occurred in public, the suppression court must identify the place in which defendant asserts his or her expectation of privacy. For example, the object of defendant Ramirez-Portoreal’s claimed expectation of privacy was the piece of luggage he carried. Defendant Sanchez, whose "package” was not in a container and was obviously contraband, could claim an expectation of privacy only in the tailpipe of the van. The object of defendant Mims’ asserted expectation of privacy was the paper bag in which Officer Fleming discovered crack vials.

The suppression court must also consider and determine the nature of the interest asserted, distinguishing between the separate concepts of possession and an expectation of privacy (see, People v Wesley, 73 NY2d, at 359, supra; People v Rodriguez, 69 NY2d, at 163, supra; see also, United States v Salvucci, 448 US, at 91-92, supra; cf., Rawlings v Kentucky, 448 US, at 104-105, supra). Whether defendant has a legitimate expectation of privacy in the place searched is a substantively different and broader question than whether he or she has a possessory interest in it. While defendant’s exercise of dominion and control over premises searched or an item seized may establish constructive possession of it, a legitimate expectation of privacy turns on consideration of all of the surrounding circumstances, including but not limited to defendant’s possessory interest (see, People v Rodriguez, 69 NY2d, at 163, supra; Rawlings v Kentucky, supra; cf., People v Whitfield, 81 NY2d 904).

In sum, standing to seek suppression of evidence requires the defendant to establish, by defendant’s own evidence or by relying on the People’s evidence (see, People v Gonzalez, 68 NY2d 950, 951), that he or she had a legitimate expectation of privacy in the place or item that was searched. The suppression court must identify the object of defendant’s expectation of privacy, determine whether defendant exhibited an expectation of privacy in it, and evaluate whether the circumstances would lead society to regard defendant’s expectation as reasonable. If the court determines that defendant had a legitimate expectation of privacy in the item searched, standing to challenge the legality of the police conduct is established.

B.

In the context of a challenge to the legality of a police search, the People may argue that the evidence need not be suppressed because defendant has abandoned it. Property is deemed abandoned when the expectation of privacy in the object or place searched has been given up by voluntarily and knowingly discarding the property. The result is a waiver of the constitutional protection. The burden rests upon the People to establish the waiver (People v Howard, 50 NY2d, at 593, supra).

Defendant’s intention to relinquish an expectation of privacy will be found if the circumstances reveal a purposeful divestment of possession of the item searched (see, People v Martinez, 80 NY2d 444; cf., People v Howard, 50 NY2d, at 593, supra). Standing alone, the surrender of control or disclaimer of ownership does not always establish a waiver (see generally, 1 LaFave, Search and Seizure § 2.6 [b] [3d ed 1996]). Even where abandoned, moreover, if the abandonment is coerced or precipitated by unlawful police activity, then the seized property may be suppressed because it constitutes "fruit” of the poisonous tree (see, Wong Sun v United States, 371 US 471). The inquiry in such cases is whether the contraband itself "was revealed as a direct consequence of the illegal nature of the stop” (People v Cantor, 36 NY2d 106, 114) or whether defendant’s decision to relinquish possession was a calculated decision which attenuated the discovery of the evidence from the illegal police conduct (see, People v Boodle, 47 NY2d 398). That involves an evaluation of defendant’s motivation, to determine whether abandonment of the property was a spontaneous and unintended response to the police activity, or a considered judgment to waive any privacy interest in the item searched (compare, People v Boodle, supra, with People v Howard, supra).

In People v Ramirez-Portoreal, the People contend that defendant abandoned the bag. The suppression court correctly determined that defendant had a legitimate expectation of privacy in the bag and the question is whether he gave up that expectation of privacy. If he did, but did so as a result of unlawful police activity, the inquiry then is whether his abandonment was intentional and voluntary as the product of a considered judgment, or a direct and spontaneous consequence of the illegality.

The question of abandonment may also arise in cases such as People v Mims in which a vial of crack cocaine was recovered from the ground near defendant. That obvious contraband was allegedly discarded by defendant in response to a police encounter. Because it was plainly revealed by defendant’s action and not discovered as the result of a search, whether such evidence should be suppressed is to be analyzed only under the Boodle poisonous fruits analysis, not as a question of waiver of an expectation of privacy.

It should be noted that the legal question of abandonment— i.e., waiver of a legitimate expectation of privacy — is not implicated by the seizure of the 18 crack vials from the trash pile in Mims or the contraband discovered in the tailpipe in Sanchez. Inasmuch as neither defendant established a legitimate expectation of privacy in the place searched, no question of waiver arises.

C.

Applying these rules to the appeals before us requires a reversal in each appeal.

In People v Ramirez-Portoreal, County Court suppressed the evidence because it determined that defendant had standing to contest the search of the bag and that the police conduct in boarding the bus and questioning him was not lawful. The Appellate Division reversed, relying upon People v Whitfield (81 NY2d, at 906, supra), to determine that defendant lacked standing because he had shown no more than a possessory interest in the bag and had denied ownership of it. However, the facts in People v Whitfield are substantially different. There, defendant had been seen carrying the bag at a time and place significantly attenuated from the search and we concluded that such limited evidence of possession was insufficient to establish his expectation of privacy in the bag. Our decision was not intended to state a general rule that defendant’s possessory interest is insufficient to establish standing as a matter of law. As we stated, "[t]he [suppression] court must also consider such factors as whether the defendant took precautions to maintain privacy and whether the defendant had the right to exclude other persons from access” (id., at 906).

From the time defendant Ramirez-Portoreal left the first bus until he boarded the second bus and placed the bag in the luggage rack, he was in actual and sole possession of it. The bag was closed, evincing an effort to maintain the privacy it afforded. The fact that defendant seated himself at a distance from the bag does not necessarily indicate that he lacked the right to exclude others from access to it; indeed, it is unlikely that a stranger would have attempted to open the bag or would have been permitted to do so. And even though a prudent traveler might exercise greater care with respect to personal luggage, it cannot be said that society would deem an expectation of privacy in a closed piece of luggage unreasonable merely because it was not stowed in the luggage rack immediately above the traveler. In short, the evidence established defendant’s standing to contest the search.

Rather than evaluating the factors we identified in Whitfield, however, the Appellate Division blended the separate analytical questions of defendant’s establishment of the legitimate expectation of privacy and the People’s establishment of defendant’s waiver of it by abandonment. Moreover, because it held that defendant lacked standing, the Appellate Division did not reach the question of the legality of the police conduct (see, People v Hollman, 79 NY2d 181, 193; see also, People v Hanson, 195 AD2d 408). Thus, its order denying the motion to suppress should be reversed and the matter remitted to the Appellate Division to determine the question of abandonment.

In People v Sanchez, the suppression court and the Appellate Term concluded that defendant had standing to challenge the admissibility of the drugs seized from the tailpipe of the van. Their conclusions rested on analysis of defendant’s possession of the contraband; they did not evaluate whether defendant had a legitimate expectation of privacy in the tailpipe of the van. Defendant’s conduct in remaining close to the van may establish his "dominion and control” over the drugs, and therefore his possession of them, and his proximity may even support his subjective expectation of privacy in the tailpipe insofar as he believed he could exclude others from it. Notwithstanding this conduct, however, an expectation of privacy in the tailpipe of a vehicle not owned by defendant and parked on a busy urban street is not objectively reasonable as a matter of law. Accordingly, we conclude that defendant lacked a legitimate expectation of privacy in the area searched, and his motion to suppress the physical evidence should be denied because he lacked standing to challenge the police conduct.

Similarly, in People v Mims the motion to suppress the 18 vials of crack discovered in the paper bag that defendant had secreted in a trash pile should be denied for lack of standing. Supreme Court and the Appellate Division determined that defendant had not abandoned the property because he remained relatively close to it and returned to it repeatedly, thereby exercising dominion and control over it. While those facts are relevant to defendant’s subjective expectation of privacy, the courts did not evaluate the objective component of the expectation of privacy. To the extent Mims’ expectation of privacy is asserted in a trash pile on a city sidewalk, society would not accept that expectation as objectively reasonable: defendant claimed no possessory interest in the trash pile and it was "readily accessible to animals, children, scavengers, snoops, and other members of the public” (see, California v Greenwood, 486 US, at 40, supra).

Nor is there an objectively reasonable expectation of privacy in a paper bag secreted in a trash pile. Manifestly, any person or animal having access to the trash pile would have the same access to the container stowed in it, and it is not reasonable to expect that the contents of a paper bag found in a trash pile would remain undisturbed or undiscovered out of respect for the privacy of the person who put it there. Accordingly, we conclude that defendant lacked standing to challenge the police conduct leading to the discovery of the 18 crack vials and the motion to suppress that evidence should be denied.

III.

In People v Mims, defendant also sought to suppress the single crack vial and some currency seized from his person because it was the fruit of an unlawful arrest. The question presented relates to the legality of the arrest of defendant, and whether the knowledge of Officer Fleming could be imputed to Officer Lott to sustain the arrest.

The "fellow officer” rule provides that even if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer "acts upon the direction of or as a result of communication with a superior or [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest” (People v Horowitz, 21 NY2d 55, 60; People v Rosario, 78 NY2d 583, 588, cert denied 502 US 1109; People v Lypka, 36 NY2d 210, 213). If the arrest is challenged by defendant in a motion to suppress, however, "it becomes incumbent upon the People to establish that the officer or agency imparting the information, in fact possessed the probable cause to act” (People v Rosario, supra, at 588; People v Dodt, 61 NY2d 408, 416; People v Landy, 59 NY2d 369, 375). The People must therefore come forward with evidence establishing probable cause to arrest (People v Parris, 83 NY2d 342, 346; People v Petralia, 62 NY2d 47, 52, cert denied 469 US 852). The narrow question presented here is whether the People may establish that Fleming directed the arrest of defendant or communicated the information which gave him probable cause to arrest to Lott by relying on circumstantial evidence.

Officer Fleming testified that he observed defendant’s activities from the rooftop, but that Officer Lott, who was guarding him, did not. Thus, Lott had no personal knowledge of defendant’s activity. But Fleming also testified that he and Lott were working together on a drug interdiction assignment, that they left the roof together, drove around the block in one car, and that when they arrived at defendant’s location Lott exited the car and immediately detained defendant while Fleming retrieved the paper bag from the trash pile.

Supreme Court concluded that Fleming had probable cause to arrest defendant but that in the absence of direct evidence of communication from Fleming to Lott, the People had failed to establish the legality of Lott’s detention of defendant. While it would have been better practice to elicit direct evidence of a communication between the officers, the suppression court was not precluded from drawing the inference from the circumstantial evidence presented that Fleming conveyed his information to Lott.

Where undisputed facts permit but one inference to be drawn, this Court may determine the issue (see, People v Ferro, 63 NY2d 316, 321, cert denied 472 US 1007). Here, the two officers were engaged in a single assignment. They were together on the roof, and they proceeded together to arrest defendant. Officer Lott had no personal knowledge of defendant’s activity, appearance or precise location, and yet he alighted from the car and immediately detained defendant. No other inference may be drawn from these facts but that Lott was acting at the direction of, or upon knowledge shared by, Officer Fleming. Inasmuch as Supreme Court determined that Officer Fleming’s observations of defendant provided him with probable cause to arrest defendant, we conclude that the arrest of defendant was lawful and that the motion to suppress should be denied.

IV.

Accordingly, in People v Ramirez-Portoreal, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division, Third Department, for further proceedings in accordance with this opinion.

In People v Sanchez, the order of the Appellate Term should be reversed, defendant’s motion to suppress denied, and the case remitted to Criminal Court, New York County, for further proceedings on the Criminal Court complaint.

In People v Mims, the order of the Appellate Division should be reversed, defendant’s motion to suppress denied, and the case remitted to Supreme Court, New York County, for further proceedings on the indictment.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

In each case: Order reversed, etc.

       Inasmuch as there was circumstantial evidence of communication between the two officers, we need not consider the People’s contention that the knowledge of a team of officers generally in communication may be aggregated to establish probable cause even in the absence of evidence of an express communication between them.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    [666 NE2d 216, 643 NYS2d 511]
    Margaret Adams, Appellant, v New York City Transit Authority, Respondent.
    Argued March 26, 1996;
    decided May 2, 1996

      POINTS OF COUNSEL

      Garnett H. Sullivan, St. Albans, for appellant.
    I. The court should not abolish the long-standing law of liability to relieve, respondent, a common carrier, of the minimal duty of transporting its passengers free from willful assaults by its own employees in the course of their employment. (Stewart v Brooklyn & Crosstown R. R. Co., 90 NY 588; Vanderhule v Berinstein, 285 App Div 290; Cornell v State of New York, 46 NY2d 1032; Gillespie v Brooklyn Hgts. R. R. Co., 178 NY 347.) II. The particular job function or motive of the employee is not determinative of the common carrier’s liability to the passenger. (Palmeri v Manhattan Ry. Co., 133 NY 261.) III. Respondent is not immune from liability. (Weiner v Metropolitan Transp. Auth., 55 NY2d 175.)

      Lawrence Heisler, Brooklyn, Wallace D. Gossett and Lawrence A. Silver for respondent.
    The attack on plaintiff was committed by an employee who was acting outside the scope of her employment. This Court should reject cases which impose absolute liability on a carrier for such attacks and should declare that a carrier — or at least a public carrier like the Authority — can only be liable for those employee attacks committed during the course and scope of employment. In any event, that Authority should escape liability because Ms. Bowman was not assigned to carry out the contract of carriage. (Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Gillespie v Brooklyn Hgts. R. R. Co., 178 NY 347; Webber v Herkimer & Mohawk St. R. R. Co., 109 NY 311; Loehr v East Side Omnibus Corp., 259 App Div 200, 287 NY 670; Gelfand v Tanner Motor Tours, 339 F2d 317; Leeds v Metropolitan Transp. Auth., 117 Misc 2d 329; McLean v Triboro Coach Corp., 302 NY 49; Rainey v Paquet Cruises, 709 F2d 169; York v Commodore Cruise Line, 863 F Supp 159; Kelly v Manhattan Ry. Co., 112 NY 443.)
   OPINION OF THE COURT

Titone, J.

In 1882, this Court held that a common carrier is liable to passengers for the torts of its employees regardless of whether those torts were committed within or outside the scope of their employment (Stewart v Brooklyn & Crosstown R. R. Co., 90 NY 588). This appeal requires us to determine whether the New York City Transit Authority may be held liable under this holding for injuries sustained by a subway rider as a result of an unprovoked attack by a Transit Authority token booth clerk. Concluding that the liability rule enunciated in 1882 is no longer viable as a matter of law or policy, we hold that the token booth clerk’s assaultive conduct, which was indisputably outside the scope of her employment, does not give rise to vicarious liability on the part of her employer.

According to the complaint allegations and deposition testimony, plaintiff Margaret Adams was waiting in line to purchase a subway token when she heard the clerk inside the token booth yelling at the man immediately in front of her. After the man walked away, plaintiff stepped up to the booth, slid her fare through the opening in the window and asked for directions to her destination. Inexplicably, the clerk responded with a barrage of verbal abuse.

Shocked by the clerk’s reaction, plaintiff walked away from the booth, placed her token in the slot and attempted to proceed through the turnstile. Her movement was interrupted, however, when she was assaulted from behind by the token clerk, pushed to the ground and choked. The incident ended when plaintiff’s companion, who had been waiting on line with her, called for help and obtained the assistance of a man who pulled the assailant away from plaintiff. According to plaintiff, she suffered physical and emotional injury as a result of the assault.

Plaintiff commenced the present action for damages against the Transit Authority, alleging several causes of action. On cross motions for summary judgment, plaintiff’s claims based on negligent hiring, training and supervision and the Authority’s alleged acquiescence in its employee’s misconduct were dismissed for lack of factual or legal support. The Supreme Court concluded, however, that plaintiff had established entitlement to summary judgment on her cause of action that was based on defendant Authority’s breach of its carrier’s duty to provide its passengers with transportation " 'free from insults or assaults by [its employees]’ ” (quoting PJI 2:239).

On defendant Authority’s appeal, the Appellate Division reversed this aspect of Supreme Court’s ruling and modified its order accordingly by dismissing plaintiff’s remaining cause of action. After reviewing the legal history of the special common-carrier rule of vicarious liability on which the Supreme Court relied, the Appellate Division concluded that the rule was no longer viable. This appeal, taken by permission of the Appellate Division, ensued. We now affirm.

As a general rule, employers are held vicariously liable for their employees’ torts only to the extent that the underlying acts were within the scope of the employment (see, e.g., Riviello v Waldron, 47 NY2d 297; Cornell v State of New York, 46 NY2d 1032, 1033; Sauter v New York Tribune, 305 NY 442; Higgins v Watervliet Turnpike Co., 46 NY 23). The scope-of-employment limitation on employers’ vicarious liability is a logical consequence of the policies underlying the vicarious liability doctrine itself. The modern justification for the doctrine lies in the view that "[t]he losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise,” are most fairly allocated to the employer "as a required cost of doing business” (Prosser and Keeton, Torts § 69, at 500 [5th ed]). It follows from this rationale that torts which are outside the scope of employment and are therefore not part of the "conduct of the employer’s enterprise” should not be made the responsibility of the employer.

One particularly significant exception to the general rule is the expansive liability that has been imposed on common carriers for the torts of their employees. In Stewart v Brooklyn & Crosstown R. R. Co. (supra), this Court held that carriers are liable for their employees’ torts regardless of whether those torts were committed within the scope of employment. The Stewart decision was premised principally on the carrier’s implicit contract with its passengers, which was held, as a matter of law, to require the carrier to transport its passengers " 'safely and properly, and to treat [them] respectfully’ ” (90 NY, at 591, quoting Goddard v Grand Trunk Ry., 57 Me 202). An assault on a passenger by a carrier’s employee constituted a breach of this contractual duty and, in the Stewart Court’s view, should therefore be actionable without regard to the relationship between the employee’s conduct and the master’s business.

In subsequent cases applying the rule, the Court retained the breach of contract theory but also acknowledged the rule’s equally important underpinnings in tort law (Busch v Interborough R. T. Co., 187 NY 388; Gillespie v Brooklyn Hgts. R. R. Co., 178 NY 347; see also, Dwinelle v New York Cent. & Hudson Riv. R. R. Co., 120 NY 117). Modern authorities have recognized that the special duty of a common carrier to its passengers is a tort-based duty rather than an obligation derived from an implied contract between the carrier and the passenger (Prosser and Keeton, op. cit, § 12, at 57-58; see also, Webber v Herkimer & Mohawk St. R. R. Co., 109 NY 311; Loeher v East Side Omnibus Corp., 259 App Div 200, affd 287 NY 670). As one court has noted in a somewhat different context, " 'the tickets [issued by a carrier to a passenger] do no more than evidence a relation of common carrier and passenger for hire; it is the law of torts that imposes the standard of care and responsibility appropriate to the carrier-passenger relationship, but that standard, and any consequent liability, are not creatures of contract’ ” (Gelfand v Tanner Motor Tours, 339 F2d 317, 322). Accordingly, if the special rule adopted in Stewart is to retain its force in our contemporary body of law, it must find some justification in modern tort principles.

Consideration of the broad policies underlying the vicarious liability doctrine does not reveal such a justification. Where an unprovoked assault or other intentional tort committed by a carrier’s employees is determined to be outside the scope of the actor’s employment, it is, by definition, not of the kind of activity that is "as a practical matter * * * sure to occur in the conduct of the [carrier’s] enterprise” (Prosser and Keeton, op. cit., at 500). Thus, it makes no more sense to treat the cost of such misconduct as "a required cost” of the carrier’s business (see, id.) than it would to treat the same class of misconduct as a required cost of the business of a restaurateur, storekeeper or any other class of proprietor.

Since the general vicarious-liability principles that are applicable to all employers do not suggest a sound basis for the Stewart rule, its justification, if any, must be found in the special characteristics of common carriers. The lengthy history of the law’s attempt to address common-carrier liability suggests several possibilities. However, as the Appellate Division correctly found, none of these furnishes a wholly satisfactory ground for applying the 100-year-old Stewart rule to contemporary controversies.

In the past, carriers were held subject to a higher duty of care, and terms like "absolute liability” and "duty of an absolute nature” were often used to explain why "the usual distinctions which attend the doctrine of respondeat superior cut little or no figure” in cases involving common-carrier liability (Gillespie v Brooklyn Hgts. R. R. Co., supra, at 354 [emphasis in original], quoting Thompson, Negligence § 3186; see, 3 Harper, James and Gray, Torts § 16.14 [2d ed]; Prosser and Keeton, op. cit., §§ 56, 70, 92). However, the higher duty of care imposed on carriers has been subject to considerable criticism (see, McLean v Triboro Coach Corp., 302 NY 49; 3 Harper, James and Gray, op. cit., § 16.14; Prosser and Keeton, op. cit., § 56) and is no longer applied in many quarters (see, Lesser v Manhattan & Bronx Surface Tr.Operating Auth., 157 AD2d 352, 355, affd 79 NY2d 1031; Braceo v Manhattan & Bronx Surface Tr. Operating Auth., 117 AD2d 273, 278; Kermarec v Compagnie Generale Transatlantique, 358 US 625; Plagianos v American Airlines, 912 F2d 57; Rainey v Pacquet Cruises, 709 F2d 169; PJI 2:161). Moreover, there is no real logical connection between a carrier’s higher duty of care and the imposition of "absolute” liability for the unforeseeable acts of employees that are both beyond the employer’s control and outside the reasonable scope of the employer’s enterprise.

Further, the apparent historic underpinnings of the carrier’s absolute liability for employee misconduct are of dubious validity under current social and legal conditions. Any analogy between the carrier’s absolute responsibility as a bailee of inanimate goods and its responsibility to human passengers (see, Rabon v Guardsmark, Inc., 571 F2d 1277, 1281, n 5) has long been discredited (see, Kaczorowski, The Common-Law Background of Nineteenth-Century Tort Law, 51 Ohio St LJ 1127, 1157-1158; see also, Boyce v Anderson, 2 Pet [27 US] 150). Similarly, although the special hazards once posed by rail travel have sometimes been cited as an important source of the absolute liability imposed on carriers (see, Philadelphia & Reading R. R. Co. v Derby, 14 How [55 US] 468, 486-487; Vanderhule v Berinstein, 285 App Div 290, 297), that rationale has long since become outdated as public conveyances like trains, planes and boats have become at least as safe as private modes of travel. Moreover, even if travel by common carrier could still fairly be regarded as an especially hazardous activity, that circumstance would not provide a persuasive explanation for the Stewart rule’s retention, since the risks arising from the independent non-work-related tortious actions of an employee are unrelated to the hazards of travel and, in fact, are essentially the same regardless of whether the individual is hurtling through a subway tunnel or is instead leisurely sipping a cup of coffee in a quiet restaurant.

The status of passengers as helpless prisoners confined within the carriers’ travel compartments is another factor that has been mentioned in support of the absolute liability rule (see, Lopez v Southern Cal. R. T. Dist., 153 Cal App 3d 1135, 200 Cal Rptr 779, revd on other grounds 40 Cal 3d 780, 710 P2d 907; Derwort v Loomer, 21 Conn 245, 253, 254; see generally, Wheat, Liability of Carrier to Passengers for Injuries by its Servants, 14 Mich L Rev 626, 642; Comment, Strict Liability or Negligence: What Standard of Care Applies When Crew Members Assault Passengers on Cruise Ships, 19 Tul Mar LJ 353). Like the ultrahazardous activity rationale, this theory proves too much. As one court has noted, the same factors that appear to enhance the risk of assault in public conveyances, i.e., the difficulty of escape and the involuntary exposure to many strangers, may actually operate as deterrents to would-be wrongdoers and thereby reduce the risk of harm from third-party attacks (Jaffess v Home Lines, 1988 WL 42049 [SD NY]). Furthermore, modern life includes a host of other situations in which a consumer of services, such as a hospital patient or movie theater patron, might be confined to a limited area or find his or her movements similarly curtailed. It is doubtful that a court today would hold the proprietor of these classes of enterprises absolutely liable for an employee’s intentional torts solely because of the existence of those conditions (see, Cornell v State of New York, supra; Moritz v Pines Hotel, 52 AD2d 1020; Tobin v Slutsky, 506 F2d 1097).

Finally, the former absolute duty of carriers to protect their passengers from criminal attacks by third parties is an unconvincing reason for imposing absolute liability for assaults by employees. Since this Court decided Basso v Miller (40 NY2d 233) in 1976, landowners have been absolved of the heightened duties of care that they previously owed their business invitees and guests. Basso’s holding undermines the basic notion that owners of particular businesses should be held to special or different duties of care that are determined solely by their relationship to or the status of the injured party. Moreover, where governmentally operated carriers like the Transit Authority are concerned, the premise that carriers should be liable at all for third-party criminal assaults has been drastically curtailed (see, Weiner v Metropolitan Transp. Auth., 55 NY2d 175). Thus, the theoretical predicate for the third-party liability rule has itself been substantially eroded.

Even more importantly, the Stewart Court’s reasoning on the point is fundamentally flawed. The Court concluded in Stewart that carriers should be held liable for the irrational and gratuitous intentional misconduct of their employees, since it would be anomalous to deny liability in those circumstances while imposing liability when an employee negligently permits a passenger to be attacked by a stranger. First, this syllogism, if valid, is as pertinent to all other service enterprises as it is to common carriers and is therefore not a sound basis for a special rule for the common carriers. Second, the syllogism is logically defective because it overlooks that liability in situations involving employee negligence requires the existence of an analytically critical fact not present in cases involving gratuitous intentional employee misdeeds, i.e., employee misconduct occurring within the scope of employment. As previously noted, it is only that condition that justifies the imposition of vicarious liability on an otherwise faultless employer.

In this case, plaintiffs only cause of action against the Transit Authority that was not dismissed for want of proof is her claim based on the Authority’s vicarious liability for the tortious acts of its employee. Plaintiff does not contend that those acts were within the scope of her assailant’s employment and, accordingly, her claim depends wholly on the special rule of "absolute liability” that was previously applied to carriers under Stewart v Brooklyn & Crosstown R. R. Co. (supra). Since that rule is no longer viable, we conclude that plaintiff’s remaining cause of action was properly dismissed.

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

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs.

       Plaintiff also sued the token booth clerk, Christine Bowman, but Bowman has apparently never appeared in the action.


text:
    [666 NE2d 221, 643 NYS2d 516]
    The People of the State of New York, Respondent, v Blaine P. Bryce, Appellant.
    Argued March 28, 1996;
    decided May 7, 1996

      POINTS OF COUNSEL

      Charles J. Wilcox, Troy, for appellant.
    I. The trial court’s denial of defendant’s CPL 440.10 (1) (f), (h) and (g) motions, and denial of same without a hearing constitute an abuse of discretion as a matter of law, requiring a reversal and vacation of the judgment and dismissal of the indictment or a new trial or in the alternative a remittal for a hearing under CPL 440.30. (People v Kelly, 62 NY2d 516; People v White, 40 NY2d 797; United States v Bryant, 439 F2d 642; People v Wagstaff, 107 AD2d 877; People v Miller, 156 Misc 2d 824; People v Marks, 127 Misc 2d 591; People v Freshley, 87 AD2d 104; Brady v Maryland, 373 US 83; Giglio v United States, 405 US 150; Arizona v Youngblood, 488 US 51.) II. The trial court’s denial of defendant’s postjudgment motion under CPL 440.10 (1) (g) was an absolute abuse of discretion as a matter of law and should be reviewed by this Court. (People v Cosme, 48 NY2d 286; People v Cronin, 60 NY2d 430; People v Robinson, 36 NY2d 224; People v Crimmins, 38 NY2d 407; People v Brown, 56 NY2d 242; People v Baxley, 84 NY2d 208; People v Belge, 41 NY2d 60; People v Santos, 38 NY2d 173.)

      Sol Greenberg, District Attorney of Albany County, Albany (John E. Maney of counsel), for respondent.
    I. The trial court did not abuse its discretion in denying defendant’s motion to vacate judgment pursuant to CPL 440.10 (1) (f) and (h) without a hearing. (People v Baxley, 84 NY2d 208; People v Crimmins, 38 NY2d 407; Arizona v Youngblood, 488 US 51; People v Scattareggia, 152 AD2d 679; People v Callendar, 207 AD2d 900, 84 NY2d 1029; People v Vilardi, 76 NY2d 67; People v Cwikla, 46 NY2d 434; People v Kennedy, 47 NY2d 196; People v Murphy, 128 AD2d 177, 70 NY2d 969; United States v Stewart, 513 F2d 957.) II. The trial court did not abuse its discretion in denying defendant’s CPL 440.10 (1) (b) motion without a hearing. (People v Friedgood, 58 NY2d 467; People v Brown, 56 NY2d 242; People v Pelchat, 62 NY2d 97; People v Robertson, 12 NY2d 355; People v Lent, 204 AD2d 855; People v Satterfield, 66 NY2d 796; People v Crippen, 196 AD2d 548.) III. The trial court’s denial of defendant’s motion to vacate judgment on the grounds of newly discovered evidence is not subject to review by this Court. Nor did the trial court abuse its discretion in denying the motion on these grounds. (People v Baxley, 84 NY2d 208; People v Smith, 63 NY2d 41, 469 US 1227; People v Brown, 56 NY2d 242; People v Crimmins, 38 NY2d 407; People v Salemi, 309 NY 208; People v Latella, 112 AD2d 321; People v Balan, 107 AD2d 811; People v Miller, 144 AD2d 867; People v Copeland, 185 AD2d 280.)
   OPINION OF THE COURT

Simons, J.

Defendant appeals from an order of the Appellate Division which denied without a hearing his motion pursuant to CPL 440.10 to set aside a judgment convicting him of murder in the second degree. He alleged several grounds for relief but we find merit only in his allegation that the People failed to preserve and deliver Brady material to him before trial after assuring him they would do so. Accordingly, we remit for a hearing to determine if the People made such representations, whether the material allegedly withheld was exculpatory and if so, whether there is a reasonable probability that the verdict would have been changed had the jury heard it.

Defendant has been convicted after a jury trial of the 1988 murder of his seven-week-old son under circumstances evincing a depraved indifference to human life (Penal Law § 125.25 [2]). The death certificate assigned the cause of death to a massive brain hemorrhage due to a fractured skull. The coroner’s pathologists filed two autopsy reports and a third report was filed by a pathologist from the State Police forensic team who had examined the skull and brain tissue of the victim. Though the reports differed somewhat, their findings were generally consistent with the cause of death stated on the death certificate.

It was the theory of the prosecution that defendant, while caring for his son, inflicted serious injuries on him causing his death. Defendant, on the other hand, contended the death was accidental. He admitted that he had dropped the infant to the floor while he was caring for him and that he had subsequently shaken him in the belief that the child was choking, but he contended that he did not intentionally or recklessly injure him.

Because the incident took place when defendant and the victim were alone, the proof of depraved indifference rested largely on the nature of the injuries and their possible causes. The coroner’s pathologists testified they had observed a fracture to the front of the skull during the autopsy and other medical experts called by the People, relying on X rays of the infant’s head, confirmed that finding. The fracture was described as running from the anterior fontanelle of the head to the bridge of the nose: in the words the prosecutor used to the jury the "frontal bone [of the infant’s head was] split in half. Fractured. Cut in two. As a result of a traumatic blow to his head.”

On direct, the prosecutor elicited testimony from his medical experts that the fracture could not have been accidental and that the hemorrhage of the infant’s brain resulted from excessive blows to the head. One expert concluded that a fracture like the one observed on the front of the infant’s skull could result only from the application of force equivalent to that which a body might experience from being dropped from a second story window or being involved in a high speed auto accident.

Defendant called two medical experts who testified that after examining the CAT scans, X rays and autopsy results they found no evidence of a fracture to the frontal bone. They concluded that the medical evidence was consistent with defendant’s assertion that the death was accidental.

Although defendant had requested the skull and samples of brain tissue for his experts to examine, and alleges that he was assured they would be available, the only physical evidence delivered to him was a small piece of bone, represented as evidence of the fracture in the middle of the victim’s forehead, and portions of the liver, spleen, testes and other organs unrelated to any head injury. They had been preserved in an empty coffee can. On cross-examination the prosecutor used the insufficiency of this evidence to elicit admissions from defendant’s experts that the basis for their opinions was weaker than the opinions of the two pathologists who had observed the skull during the autopsy and swore that it was fractured.

After the judgment of conviction was affirmed by the Appellate Division, defendant obtained an order to exhume the infant’s body and discovered that the skull had not been preserved for examination but had been buried along with the infant’s remains. From an examination of it, witnessed by the People’s forensic experts and representatives of the District Attorney’s office, the defense medical experts determined that the infant had not sustained a fracture to the front of his skull. The People do not rebut that finding in their motion papers. Defendant further alleges without contradiction that it was apparent to all the experts examining the skull that the piece of bone originally turned over to the defense experts as evidence of the frontal fracture, actually came from the side of the skull. When advised of this, one of the People’s pathologists produced another bone, never before shown to defendant’s experts, asserting it was part of the infant’s skull. None of the experts, however, could relate it to the small bone previously examined or to the infant’s exhumed skull.

Based upon these observations of the infant’s skull, defendant moved to vacate the judgment and for a new trial on the grounds of (1) misconduct by the District Attorney, (2) newly discovered evidence and (3) the violation of his constitutional rights, i.e., failure to preserve and deliver Brady material (see, CPL 440.10 [1] [b], [g], [h]). County Court denied the motion without a hearing and the Appellate Division affirmed (210 AD2d 816).

A motion to vacate a judgment based upon a claim of newly discovered evidence is addressed to the discretion of the lower courts (see, People v Brown, 56 NY2d 242, 246; People v Crimmins, 38 NY2d 407, 409). Moreover, we agree with the courts below that the allegations of misconduct, other than those relating to the delivery of the skull and brain tissue, are conclusory and do not warrant a hearing (see, People v Brown, supra). However, we conclude that a hearing should be held to determine whether the District Attorney misrepresented to defense counsel that the skull and brain tissue had been preserved and that they would be available for examination by his experts before trial, whether the skull constituted Brady material and, if it did, whether a new trial is required.

A defendant has a right, guaranteed by the Due Process Clauses of the Federal and State Constitutions, to discover favorable evidence in the People’s possession which is material to either guilt or punishment (Brady v Maryland, 373 US 83, 87; People v Vilardi, 76 NY2d 67, 73). Under the New York rule, if a general demand has been made, evidence will be deemed material if there is a reasonable probability that had it been disclosed to the defense, the result would have been different — i.e., a probability sufficient to undermine the court’s confidence in the outcome of the trial (People v Vilardi, supra, at 77; see also, United States v Bagley, 473 US 667; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 440.10, at 429-430). The rule applies regardless of the good or bad faith of the prosecutor, for its purpose is not to punish misconduct but to insure that the accused receives a fair trial (Brady v Maryland, supra, at 87; see also, People v Ahmed, 20 NY2d 958, 960; People v Savvides, 1 NY2d 554, 557).

In the case before us, the People maintain that the brain tissue and skull were not Brady material but that in any event they were not responsible for the delivery of such evidence because it was not in their possession or control (see, People v Washington, 86 NY2d 189). The thrust of defendant’s argument, however, is that the prosecutor, in violation of his statutory duty to facilitate the discovery of exculpatory evidence (CPL 240.20 [1] [h]; [2]), prejudiced defendant’s ability to obtain the evidence before trial by misrepresenting that it had been preserved and would be available to him.

In support of this claim, defense counsel alleges that he not only made a general demand for Brady material in his omnibus motion, but that he also made several informal requests to examine the skull and brain tissue (the first such request was made while the Grand Jury was still considering the case), and that the prosecutor consistently represented to him that the evidence had been preserved and would be made available to him at the proper time. Two weeks before trial, however, the prosecutor delivered only one small piece of bone, claiming it evidenced the fracture of the frontal bone, and no brain tissue or relevant body organs.

Defense counsel contends that the evidence requested was exculpatory because the postexhumation examination established that the People’s experts were in error when they claimed defendant was responsible for inflicting a massive fracture of the frontal bones. He contends further that the evidence was material because the prosecution emphasized the frontal fracture to discredit defendant’s claim of accident, that the jury relied upon it, as evidenced by their inquiries during deliberations, and that the court explicitly referred to the fracture when it imposed the maximum sentence of imprisonment.

The People deny that they represented the skull and brain tissue had been preserved or that they promised to deliver any body specimens other than those produced before trial. Moreover, they assert that there was abundant evidence of guilt, any error in diagnosing the fracture notwithstanding, from the testimony of the several witnesses and the exhibits received at trial. They note that defense counsel had a full opportunity to examine all these exhibits before trial and that any evidence obtained in the exhumation, even if it fails to show a fracture, is merely cumulative of defendant’s experts’ original trial testimony and relevant only to impeach the credibility of the People’s experts. The People rely on a finding by the Appellate Division on the direct appeal (see, People v Bryce, 174 AD2d 945) that defendant was not prejudiced by the failure to produce the skull and brain tissue and maintain that defendant’s inability to obtain the evidence was caused by his own delay.

Whether other, sufficient evidence of guilt was produced in response to defendant’s discovery demand is irrelevant if the skull was Brady material and representations were made that it had been preserved, when it had not, and was available for trial, when it was not. Nor is the prior Appellate Division ruling conclusive. At the time of the direct appeal defendant’s arguments were necessarily restricted to the failure to deliver discoverable materials and the prejudice that accrued to him as a result. Notably, in rejecting defendant’s claim of prejudice at that time, the Appellate Division stated that defendant had made no claim the evidence was exculpatory (174 AD2d, at 947, supra). Indeed, defendant could not have made such a claim before seeing the skull. Thus, the Court’s determination on the direct appeal addressed an entirely different issue than now before us (see generally, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 240.10, at 216). Finally, whether there is any causal relation between the People’s actions and defendant’s ability to obtain exhumation earlier is a matter for the hearing court (cf., People v Brown, 67 NY2d 555).

Accordingly, the order of the Appellate Division should be reversed and matter remitted to County Court for further proceedings in accordance with this opinion.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order reversed, etc.


author: Bellacosa, J. Titone, J.

text:
    [666 NE2d 521, 643 NYS2d 928]
    Archbishop Walsh High School, Appellant, v Section VI of the New York State Public High School Athletic Association, Inc., Respondent.
    Argued February 15, 1996;
    decided April 2, 1996

      POINTS OF COUNSEL

      Dwyer & Black, P. C., Olean (Joseph C. Dwyer of counsel), for appellant.
    I. The conduct engaged in by defendant-respondent is a violation of plaintiff-appellant’s equal protection rights under the Fourteenth Amendment to the U. S. Constitution. (Matter of Friends Academy v Section VIII of N. Y. State Pub. High School Athletic Assn., 154 Misc 2d 1; St. Augustine High School v Louisiana High School Athletic Assn., 270 F Supp 767, 396 F2d 224.) II. Defendant-respondent’s maintenance and operation of a system of high school athletics is subject to judicial scrutiny under purview of the Fourteenth Amendment to the Constitution of the United States because it acts under color of State law. (Clark v Arizona Interscholastic Assn., 695 F2d 1126, 464 US 818; Yellow Springs Exempted Vil. School Dist. v Ohio High School Athletic Assn., 647 F2d 651; Brenden v Independent School Dist., 477 F2d 1292; Mitchell v Louisiana High School Athletic Assn., 430 F2d 1155; St. Augustine High School v Louisiana High School Athletic Assn., 270 F Supp 767, 396 F2d 224; Gilpin v Kansas High School Activities Assn., 377 F Supp 1233; Royster Guano Co. v Virginia, 253 US 412.) III. Plaintiff-appellant as an all Catholic diocesan high school, is a suspect classification which warrants "strict scrutiny”, and shifts the burden of proof to defendant-respondent as it relates to a constitutional challenge. (City of New Orleans v Dukes, 427 US 297; St. Augustine High School v Louisiana High School Athletic Assn., 396 F2d 224; Weber v Aetna Cas. & Sur. Co., 406 U S 164; In re Griffiths, 413 US 717; McLaughlin v Florida, 379 US 184; Alevy v Downstate Med. Ctr., 39 NY2d 326; Pickett v Brown, 462 US 1; Craig v Boren, 429 US 190; People v Hernandez, 75 NY2d 350.) IV. The additional admission requirement imposed on nonpublic school applicants (must prevail in a secret ballot of member public high schools) which is not required of public school applicants is violative of plaintiff-appellant’s right to equal protection under the law because Section VI has failed to advance any legitimate State interest which is rationally served by the unequal treatment of public and nonpublic school applicants. (Son Antonio School Dist. v Rodriguez, 411 US 1; Weber v Aetna Cas. & Sur. Co., 406 US 164; O’Connell High School v Virginia High School League, 581 F2d 81; Frontiero v Richardson, 411 US 677; Baltic Ind. School Dist. v South Dakota High School Activities Assn., 362 F Supp 780.) V. Without promulgating rules, regulations or any criteria for the secret ballot, Section VI has created a haven for rejection without rational basis. (St. Augustine High School v Louisiana High School Athletic Assn., 270 F Supp 767; Homes v New York City Hous. Auth., 398 F2d 262; Hornsby v Allen, 326 F2d 605; City of Santa Clara v Kleppe, 418 F Supp 1243; Baker-Chaput v Cammett, 406 F Supp 1134; Smith v Ladner, 288 F Supp 66.)

      Magavern, Magavern & Grimm, L.L.P., Buffalo (James L. Magavern and Robin J. Chapman of counsel), for respondent.
    I. To prevail in its equal protection challenge to Section Vi’s standards and procedures for admission of nonpublic schools, appellant must prove that there is not any reasonably conceivable state of facts that could provide a rational basis for the classification of nonpublic schools as distinct from public schools. (Heller v Doe, 509 US 312; F.C.C. v Beach Communications, 508 US 307; Nordlinger v Hahn, 505 US 1; Vance v Bradley, 440 US 93; New Orleans v Dukes, 427 US 297; James v Valtierra, 402 US 137; Matter of Friends Academy v Section VIII of N. Y. Pub. High School Athletic Assn., 154 Misc 2d 1; St. Augustine High School v Louisiana High School Athletic

      Assn., 270 F Supp 767, 396 F2d 224; Craig v Boren, 429 US 190.) II. Appellant has not sustained its burden of proof. It has failed to establish that there is no conceivable state of facts which would provide a rational basis for Section VTs requirement of approval by a majority of its members for admission of a nonpublic school or for the vote of its members to deny appellant’s application for membership. (O’Connell High School v Virginia High School League, 581 F2d 81.) III. Defendant is precluded from raising a due process argument for the first time before the Court of Appeals, which argument fails on the merits in any event. (Lichtman v Grossbard, 73 NY2d 792; Di Bella v Di Bella, 47 NY2d 828; Matter of Caso v New York State Pub. High School Athletic Assn., 78 AD2d 41; Board of Regents v Roth, 408 US 564; Greenholtz v Nebraska Penal Inmates, 442 US 1; Meachum v Fano, 427 US 215.) IV. Appellant’s position is based on a series of fundamental errors. (Heller v Doe, 509 US 312; F.C.C. v Beach Communications, 508 US 307; St. Augustine High School v Louisiana High School Athletic Assn., 270 F Supp 767, 396 F2d 224; Arlington Hgts. v Metropolitan Hous. Corp., 429 US 252; Committee for Pub. Educ. v Nyquist, 413 US 756.) V. Appellant’s claim for relief is unfounded. Even if respondent’s procedures were held legally deficient, appellant would be entitled at most to reconsideration or reapplication under procedures as modified.
   OPINION OF THE COURT

Bellacosa, J.

The sole issue on this appeal is whether the denial to appellant Archbishop Walsh High School of membership in Section VI of the New York State Public High School Athletic Association, Inc. constitutes a deprivation of appellant’s right to equal protection of the law under the Fourteenth Amendment of the United States Constitution. Both courts below found no such violation, and Walsh appeals to this Court as of right on constitutional grounds (CPLR 5601 [b] [1]). In particular, Walsh claims that Section VI failed to accord it equal protection of laws when Section VI denied Walsh membership in the Athletic Association based on an insufficient number of favorable votes in a member referendum on Walsh’s application. The voting mechanism is the culminating step of the qualifications imposed on all nonpublic school applicants for membership and the essential feature of appellant’s constitutional challenge.

The Archbishop Walsh High School, located in Cattaraugus County, New York, is a member of that county’s High School Athletic Association, one of the leagues sanctioned and regulated by Section VI. Section VI is the overarching, independent, not-for-profit corporation affiliated with the New York State Public High School Athletic Association. The State Association is also a not-for-profit corporation organized under the aegis of the New York State Commissioner of Education (see, 8 NYCRR part 135) to provide an umbrella organization under which secondary schools may operate and coordinate their interscholastic athletic programs. Section VI currently has a membership of 93 public schools located in the eight western counties of New York State. No nonpublic school has ever been granted membership in Section VI.

In August 1993, Walsh applied for Section VI membership. At that time, the Section VI constitution did not provide for the admission of nonpublic schools, but did recognize a category of "friends and neighbors” schools. Walsh’s application to Section VI was accepted under that special category and it met the pertinent special admission procedures, including the submission of a completed application and a presentation to the Section VI Athletic Council. Ultimately, Walsh failed to obtain approval by a majority of votes from Section Vi’s member schools, and for that reason alone its application was denied. It should be emphasized that this is a quite ordinary majority ballot system among membership organizations. To the extent that it is at all relevant in an equal protection calculus, as contrasted to a due process assessment not properly raised in this case, the voting procedure on this record is neither secret nor some single or block vote exclusionary subterfuge.

Walsh’s declaratory judgment action rests solely on a claimed deprivation of its right to equal protection under the Fourteenth Amendment of the United States Constitution. Upon the parties’ respective motion and cross motion for summary judgment, Supreme Court granted Section Vi’s motion for summary judgment and dismissed the complaint. The Appellate Division technically modified the judgment by converting it into a declaration that Section Vi’s referendum requirement did not deprive Walsh of equal protection of the law. We agree and affirm the order.

Preliminarily, everyone agrees that the actions of Section VI constitute State action, and Section VI must, therefore, comply with applicable equal protection standards and not deny Walsh its rights in that regard (see, Matter of Eastern N. Y. Youth Soccer Assn. v New York State Pub. High School Athletic Assn., 67 NY2d 665, 667; 8 NYCRR part 135; see also, Matter of Caso v New York State Pub. High School Athletic Assn., 78 AD2d 41, 46; Clark v Arizona Interscholastic Assn., 695 F2d 1126, 1128, cert denied 464 US 818). The disposition of this case turns on the standard of judicial review applicable to the controversy. We are unanimous that the rational basis standard governs and all but one of us conclude that the standard is satisfied in this case.

Although education, and by related extension participation in a publicly sponsored and supported interscholastic sports association, is not in and of itself a fundamental substantive right under the Constitution (Albach v Odle, 531 F2d 983, 984-985), the right to equal protection of the laws is fundamental and explicitly safeguarded (San Antonio School Dist. v Rodriguez, 411 US 1, reh denied 411 US 959; O’Connell High School v Virginia High School League, 581 F2d 81, 84, cert denied 440 US 936). Absent an allegation of discrimination based on a suspect classification elevating judicial review beyond the rational basis standard, Section VFs State action must be analyzed to determine whether it "rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment” (San Antonio School Dist. v Rodriguez, supra, at 17; see, Heller v Doe, 509 US 312, 318-321). Under this rational basis standard, no deprivation of equal protection of the law occurs so long as there is a plausible reason for the nonsuspect classification of the aggrieved complainant (Federal Communications Commn. v Beach Communications, 508 US 307, 313-314; Nordlinger v Hahn, 505 US 1, 11).

Walsh would have the courts apply the higher "strict scrutiny” standard to its claim because, it argues, as a Catholic high school it fits within a suspect classification that qualifies for protection under a heightened standard of judicial review. No equal protection deprivation as among nonpublic schools is alleged or involved in this case. Walsh’s narrowly targeted argument is untenable because the unequal treatment of which it complains is discrimination between public and nonpublic schools, not anything of a religious nature and not even anything within the entire class of nonpublic schools (cf., Matter of Di Maggio v Brown, 19 NY2d 283, 290, citing Oyler v Boles, 368 US 448, 456).

Notably, Walsh’s due process claim — that the membership referendum is a "secret ballot” that is inherently biased against schools like Walsh — is unpreserved. Thus, the legal implications of any belated due process complaint cannot be considered, nor may we even address the accuracy of the asserted factual underpinnings of the theory.

The precise focus of this case and appeal is an examination on this record to determine whether Section Vi’s admission requirements for nonpublic schools reflect a rational basis related to the purposes of the organization sufficient to survive Walsh’s equal protection challenge. Because Section Vi’s denial of membership to Walsh was predicated on the lack of a favorable majority of member votes, Walsh’s discrimination claim must be resolved solely on the rationality of Section Vi’s ballot requirement. Walsh and the dissent acknowledge that Section VI has no constitutional obligation to open its membership to anyone other than public schools in the first instance. The argument is then, nevertheless, cast that once Section VI opens its membership opportunity to others, it cannot rationally justify the members’ vote prerequisite for all nonpublic schools, while allowing automatic membership for all public schools.

Section VI, on the other hand, advances a number of concrete justifications for using specific membership qualifications for nonpublic schools, including an open membership ballot based on a majority vote. It states that because it is a voluntary organization of only public schools that necessarily have open community enrollment, it has an interest in the "character of competition that such community identity and non-selectivity engender” among member schools. This goal would be jeopardized by unlimited or unqualified membership admittance of private schools that are able to offer financial incentives and other differentiating admission incentives to their students. Section VI argues that this distinctive feature could cause competitive imbalances among schools, since public schools could not offer such benefits.

Section VI also points to the fact that, unlike public schools, nonpublic schools can draw students from a wider geographic area and, thus, skew the fair athletic balance among schools and regions. The diminution of community spirit among public schools — possibly resulting from the loss of identity that public schools usually enjoy through traditional community-based rivalries, especially in competitions such as championships — is part of the justification for membership criteria imposed on nonpublic school applicants that wish to enroll in Section VI. There is no absolute ban, nor is there automatic entry. Rather, the screening process includes a membership vote applicable to all nonpublic school applicants as a method to deal with Section Vi’s legitimate concerns. The dissent raises the spectre of per se invidious and arbitrary discrimination by the mere use of an open, majority ballot system. It thus rejects as spurious the most elemental hallmark of the democratic process and one of associative groups — a majority vote — and ignores the plaintiffs burden on this kind of constitutional attack of showing that the requirement has no rational basis.

We, on the other hand, agree with the courts below that Section Vi’s reasons sufficiently identify and demonstrate a rational basis for its special membership requirements. The constitutions of both Section VI and the State Association reflect that the primary purpose of these organizations is to provide a "central association through which public secondary schools * * * may cooperate” in organizing interscholastic athletic activities (emphasis added). Section Vi’s membership qualifications for nonpublic schools are consistent with and further the identified purposes by reasonably assuring that all member schools have the opportunity to compete on a relatively level playing field. Walsh and the dissent rely on conclusory speculation and fail to show that the justifications advanced by Section VI in response to this equal protection claim are not reasonably related to the concerns of promoting rationally rooted interscholastic athletic competition. Courts may not skeptically second-guess these proffered reasons in equal protection constitutional analysis and simply declare such a voting mechanism per se arbitrary and unconstitutional.

Moreover, the issues and concerns tendered by Section VI for promulgating its special admission requirements as to all nonpublic school members find some additional support in the determinations of other courts. Appropriate justifications designed to minimize or mitigate uneven or undesirable competition between public and nonpublic schools, especially as affected by the differentiating recruitment opportunities geared towards student athletes, have been upheld (see, O’Connell High School v Virginia High School League, 581 F2d 81, 85, supra; see also, Walsh v Louisiana High School Athletic Assn., 616 F2d 152, 160, cert denied 449 US 1124). In the Virginia High School League case, for example, the Court of Appeals for the Fourth Circuit found a rational basis for a public high school athletic association’s exclusion of all nonpublic schools, based on reasons similar to those advanced by Section VI here (581 F2d, at 87, supra).

On the other hand, Walsh’s and the dissent’s extended reliance on nisi prius rulings in Matter of Friends Academy v Section VIII of N. Y. State Pub. High School Athletic Assn. (154 Misc 2d 1) and St. Augustine High School v Louisiana High School Athletic Assn. (270 F Supp 767, affd 396 F2d 224), even if they were binding at this level, is seriously misplaced and flawed. The trial court in Friends Academy, while articulating and ruling on a rational basis analysis, also referenced the St. Augustine case as support for its conclusion on a rational basis characterization. No matter how ambiguous the District Court’s description and analysis are in St. Augustine concerning the proper judicial review to be applied, the Fifth Circuit decided the case unequivocally as a preclusion from membership on racial grounds (St. Augustine High School v Louisiana High School Athletic Assn., 270 F Supp 767, affd 396 F2d 224, 228, supra). Because St. Augustine was thus unquestionably and ultimately rooted in a race-based equal protection challenge at the strict scrutiny level, the nisi prius precedents advanced in support of appellant’s argument in this respect fail and lack any persuasive value for the proper disposition of this case.

In sum, Section Vi’s membership voting requirement for the enrollment of nonpublic schools is a rational screening process on its face, addressed to the particular concerns and issues affecting its otherwise exclusively public schools’ membership roster. Finally, nothing in this record supports the assertion or speculation that this voting procedure is intrinsically arbitrary or a subterfuge masking invidious discrimination that would offend the safeguards of the equal protection of the laws of this land. Such factors would present an entirely different case and constitutional theory. Since that is not this record and this case, and because appellant Walsh has failed to show its entitlement to a declaration of unconstitutionality, we conclude that the referendum requirement of Section VI does not deprive appellant Walsh of equal protection of the laws.

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

Titone, J.

(dissenting). I agree with the majority’s conclusion that the rational basis standard governs our review of the State action in this case. I also agree that maintaining balanced competition in the league is a legitimate State interest that may justify exclusion of certain nonpublic schools from its membership. However, unlike the majority, I cannot conclude that the referendum vote instituted by Section VI here is a mechanism that furthers that legitimate interest. Rather, because the referendum vote operates to exclude schools without reference to any objective or observable criteria, this type of State action is patently arbitrary and cannot rationally further the proffered legitimate State interest. Accordingly, I dissent.

Initially, it is beyond dispute that the athletic league may lawfully treat nonpublic school applicants seeking admission to the league differently from public-school members based on rational distinctions between those two classifications (O’Connell High School v Virginia High School League, 581 F2d 81, 85 [4th Cir 1978]). As recognized by the majority, Section Vi’s State action — its employment of the challenged admissions criteria for nonpublic school applicants — "must be analyzed to determine whether it 'rationally furthers some legitimate, articulated state purpose’ ” to survive Walsh’s equal protection challenge (majority opn, at 136, quoting San Antonio School Dist. v Rodriguez, 411 US 1, 17 [emphasis added]).

Section Vi’s justifications for its special membership requirements for nonpublic schools that are credited by the majority include the desires to maintain fair competition and community spirit (see, majority opn, at 137). According to Section VI, the goals of reducing "competitive imbalances” and of maintaining community spirit "would be jeopardized by unlimited or unqualified membership admittance of private schools that are able to offer financial incentives and other differentiating admission incentives to their students.” (Id., at 137.) While that may well be true, the majority fails to explain how the referendum vote, as it currently operates, is a rational means of safeguarding against such feared competitive mismatching or decreased morale in the league. In other words, I cannot envision how the unqualified referendum vote reasonably ensures that student competitors of applicant nonpublic schools will be an appropriate or inappropriate match for the public schools already permitted to compete in Section VTs activities.

Indeed, no objective criteria circumscribe the discretion granted to the members participating in the referendum vote. For example, the league has not required that the voters consider such factors as whether the applicant schools had more advanced competitors because their athletic programs were more highly funded or because their students had spent summers in professional training camps — considerations that might support Section Vi’s argument that a nexus exists between the goal sought to be achieved — fair competition — and the means instituted to achieve it — the referendum vote. However, as the voting mechanism currently stands, there is no possible way to know whether an applicant was excluded for a reason that would advance the stated goals or for some other discriminatory purpose. Further, the opportunity for mischief in this ballot exercise is apparent, since voting members may use that mechanism as a tool to further their own agendas, discriminatory or not. Accordingly, because the referendum vote bears no relationship to "level[ling the] playing field” in Section VI athletics (id., at 138), and in fact can be just as easily used to advance other, less favorable objectives, I cannot conclude that use of that criterion for league admission is a constitutionally acceptable State action (Louisiana High School Athletic Assn. v St. Augustine High School, 396 F2d 224, 228 [5th Cir 1968]; Matter of Friends Academy v Section VIII of N. Y. State Pub. High School Athletic Assn, 154 Misc 2d 1).

The majority reaches its contrary conclusion by misreading the holding of St. Augustine as one based on a suspect classification and strict-scrutiny analysis. St. Augustine involved a class action brought on behalf of nonpublic schools who were able to join the Louisiana High School Athletic Association (LHSAA) — the public school athletic league — by meeting certain admission requirements, and only then by receiving two-thirds vote of the schools in the district in which it was to compete, and a similar vote of the general membership attending the Association’s annual meeting.

The District Court invalidated the two-thirds majority vote provision on the ground that it was an "arbitrary vote” (St. Augustine High School v Louisiana High School Athletic Assn., 270 F Supp 767, 776 [ED La 1967]), and that holding was affirmed by the Fifth Circuit Court of Appeals (396 F2d 224). Importantly, that provision’s invalidation was not predicated on a threshold determination that any suspect classification had been created or injured by the challenged State action. To be sure, the District Court found that the proof pointed to the conclusion that racial discrimination formed the basis for the vote denying admission to St. Augustine (a school attended predominantly by African-Americans). However, its express holding was dependent solely upon the ground that "the voting requirement for LHSAA membership is an arbitrary and unreasonable method of making distinctions between applicants for membership, conducive to wholesale discrimination and arbitrary and capricious treatment of any and all candidates for membership in the LHSAA, and therefore is violative of the Fourteenth Amendment” (270 F Supp, at 777 [emphasis added]).

Employing an analysis that has compelling application here, the District Court in St. Augustine concluded that, "[Regardless of whatever other worth” the two-thirds majority vote may have had, one of its effects was that "the voting requirement provides the LHSAA with a painless and efficient method of denying membership to any high school it wishes without the embarrassing necessity of assigning a reason for the denial” (id., at 776). The court concluded that "[t]hat effect, the enhancement of the arbitrary power of the state in these matters, affects not only so-called 'Negro schools,’ but each and every high school of the State of Louisiana, including so-called 'white schools’ as well” (id., at 776). After noting that "[e]very school seeking membership must be faced with the prospect of securing the favorable vote of two-thirds of the members of the Association” (emphasis in original), the court asked: "What other state agency or association places such a burden on the citizens seeking its aid? Certainly the very thought of such an arbitrary vote by state officers or agents is abhorrent to the principles of the Fourteenth Amendment and every civil right of all the citizens of this country, Negro or white” (id., at 776 [emphasis added]).

Thus, St. Augustine stands for the sound proposition that when the basis for the State’s denial of a person’s participation in a State-promoted activity cannot be ascertained, that action is irrational, and, accordingly, not even the rational basis standard of review can be met. So too, here, the voting mechanism employed by Section VI is an inherently arbitrary procedure that cannot be trusted to further any legitimate State interest, much less the stated one. The majority’s sanction of this tallied-vote system renders the grant of eligibility for membership in Section VI to nonpublic schools a hollow victory.

The referendum vote here is also decidedly different from the State action that survived equal protection challenge in Walsh v Louisiana High School Athletic Assn. (616 F2d 152 [5th Cir 1980]), which the majority cites as persuasive authority here. There can be no doubt that the transfer rule upheld in Walsh, which prevented transfer students from engaging in sports for a period of one year from the date of their transfer to a new high school, was rationally related to the legitimate goal of discouraging or eliminating recruitment tactics designed to entice promising athletes to transfer to a recruiting school. In the Fifth Circuit’s own words, the rule barring participation in athletics for one year upon transfer is "rationally and logically” related to that goal because it "imposes a direct cost on an identifiable event that must necessarily accompany that conduct. Moreover, by exacting its price in terms of a period of interscholastic athletic ineligibility, the transfer rule focuses its effect on athletic recruiting” (id., at 160 [emphasis added]). Rather than sending a similarly clear message to applicants that certain conduct will distinguish them from public schools for purposes of participation in the league and cause their application for membership in Section VI to be treated with disfavor, the referendum vote here can leave denied applicants with nothing more than bewilderment over the reasons for their rejection. Indeed, because applicants such as plaintiff can never know the basis for the denial of their applications, they cannot refashion their conduct' in a manner that will avoid future rejection.

Accordingly, I conclude that Walsh has met its burden of showing that the voting mechanism itself — the dispositive State action — is not founded on any identifiable criteria and thus cannot serve as a reasonable basis for distinguishing between public and nonpublic schools in a manner that furthers the stated goal of matched competition. Thus, this State action is inherently unreasonable and cannot satisfy even the rational basis standard of review (see, St. Augustine, supra). As forcefully stated by the District Court in St. Augustine:

"It is certainly probable that many of the schools which voted against St. Augustine did so for reasons other than race, without any thought of discrimination, and in complete good faith. And it may be that the voting provision was inserted in the LHSAA Constitution for the purpose of allowing the member schools to investigate various aspects of a candidate for membership and to cast votes based on valid and reasonable criteria for membership * * *.
"However, the latter possibility is surely no excuse for vesting such broad and arbitrary power in an association acting essentially for the state. Where such wide discretion is the ready vehicle for a covert system of discrimination, the practice must be held in and of itself violative not only of the equal protection clause, but of the basic due process guarantees of the Constitution. In this case * * * there is simply no way of ascertaining positively why St. Augustine was refused membership in the LHSAA by a vote of 185 to 11. The very fact of that impossibility is the best reason and rationale for prohibiting such subtleties as this voting provision from interfering with the very important rights of all citizens to the equal protection of the laws. We need not call the 196 school principals who voted on the issue to testify in order to determine whether 120 of them voted against St. Augustine for racial reasons. We simply rule that no school which meets the express and objective qualifications for membership in LHSAA may be denied admission on the basis of an arbitrary vote of the members. The state simply may not employ practices which leave such a large amount of discretion in the hands of state officials, at least in circumstances and situations where definite standards may easily be fixed without sacrificing fair and efficient administration.” (St. Augustine, 270 F Supp, at 776-777, supra [emphasis added].)

To my knowledge, no such arbitrary voting mechanism used to distinguish among participants in a State-promoted activity has ever survived an equal protection challenge, and I am convinced that the referendum vote employed here should suffer the same fate. Accordingly, I respectfully dissent, and vote to reverse the order granting summary judgment to defendants, and grant the summary judgment motion in favor of plaintiffs, declaring that the Section VI referendum vote is unconstitutional.

Chief Judge Kaye and Judges Simons, Smith, Levine and Ciparick concur with Judge Bellacosa; Judge Titone dissents in a separate opinion.

Order affirmed, with costs.

       The majority’s misreading of St. Augustine as a "strict scrutiny” case also led it to disregard Archbishop Walsh’s citation to Matter of Friends Academy v Section VIII of N. Y. State Pub. High School Athletic Assn. (154 Misc 2d 1, supra), which invalidated a similar referendum vote on equal protection grounds in reliance on St. Augustine. The court in Friends not only expressly adopted the rational basis test and declined to employ strict scrutiny analysis, but also correctly noted that the court in St. Augustine had rested its holding not on strict scrutiny analysis, but on the ground that such an arbitrary voting provision was abhorrent to the very principles underlying and protections afforded to every citizen by the Fourteenth Amendment (154 Misc 2d 1, 11).