author: Ciparick, J.

text:
    [644 NE2d 1327, 620 NYS2d 771]
    In the Matter of Corning Glass Works, Respondent, v Ronald P. Ovsanik, Appellant, and New York State Division of Human Rights, Respondent.
    Argued October 19, 1994;
    decided December 13, 1994

      POINTS OF COUNSEL

      Raymond J. Urbanski, Elmira, for appellant.
    I. The Court below erred in ruling that the award of retroactive back pay by the Commissioner of Human Rights in this case constitutes substantial prejudice within the meaning of the Court of Appeals decision in Matter of Sarkisian Bros. v State Div. of Human Rights (48 NY2d 816 [1979]) warranting vacatur of the Commissioner’s order and dismissal of appellant’s complaint. (Matter of Rochester-Monroe County Ch. v Kramarsky, 73 AD2d 841; Matter of General Ry. Signal Co. v New York State Div. of Human Rights, 73 AD2d 834; Matter of Xerox Corp. v Kramarsky, 73 AD2d 803; State Div. of Human Rights v City School Dist. of Rochester, 75 AD2d 1009; State Div. of Human Rights v General Motors Corp., 78 AD2d 1006; State Div. of Human Rights v American Can Co., 78 AD2d 1005; State Div. of Human Rights v Human Rights Commr., 79 AD2d 181; State Div. of Human Rights v Baker Hall, 80 AJD2d 733; Matter of St. Elizabeth’s Hosp. v Kramarsky, 81 AD2d 1010; State Div. of Human Rights v St. Elizabeth’s Hosp., 105 AD2d 1063.) II. Coming Glass’ claim of substantial prejudice due to time delays was untimely made and not preserved for judicial review. (Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789; Matter of Rores v Passidomo, 104 AD2d 727.) III. Even if the award of back pay to appellant in this case can be said to constitute substantial prejudice, dismissal of the complaint was a remedy which went far beyond that necessary to correct the perceived prejudice.

      Sheila A. Donohue, New York City, Lawrence Kunin and Michael K. Swirsky for New York State Division of Human Rights, respondent.
    The mere passage of time in the processing of a complaint does not constitute prejudice; a party asserting prejudice must show that intervening events in the lapse of time prevented it from presenting a full and fair defense. (Logan v Zimmerman Brush Co., 455 US 422; Matter of Stacey v McDaniel, 54 AD2d 645; Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169; Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371; Matter of State Div. of Human Rights v County of Onondaga Sheriff’s Dept., 71 NY2d 623; Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72; Equal Empl. Opportunity Commn. v Alioto Fish Co., 623 F2d 86; Equal Empl. Opportunity Commn. v Dresser Indus., 668 F2d 1199.)

      Reed Smith Shaw & McClay (Scott F. Zimmerman and Martha Hartle Munsch of the Pennsylvania Bar, admitted pro hac vice, of counsel), and Christopher J. Thomas, Corning, for Corning Glass Works, respondent.
    The Court below’s exercise of discretion to dismiss the complaint under the facts of this case is well within its authority and should not be disturbed by this Court. (Equal Empl. Opportunity Commn. v Dresser Indus., 668 F2d 1199; Equal Empl. Opportunity Commn. v Alioto Fish Co., 623 F2d 86; Matter of Commonwealth of Mass. v New York State Bd. on Elec. Generation Siting & Envt., 197 AD2d 97; Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816; Matter of Tessy Plastics Corp. v State Div. of Human Rights, 62 AD2d 36, 47 NY2d 789.)
   OPINION OF THE COURT

Ciparick, J.

The question presented on this appeal is whether an 8 Vi-year delay by respondent State Division of Human Rights (DHR) in processing the complaint of discrimination against petitioner Corning Glass Works caused that party substantial prejudice warranting dismissal of the complaint. Although the delay was inordinate, petitioner has not shown that it was actually prejudiced thereby. Thus, the drastic remedy of dismissal was unwarranted.

Complainant suffers from a hereditary neurological condition that causes involuntary tremors in his fingers, hands, and head. He was hired by petitioner on January 9, 1984, and terminated on February 27, 1984 while still on probationary status. On March 6, 1984, he filed a complaint of handicap discrimination with respondent DHR. Hearings were conducted before Administrative Law Judge (ALJ) Eric Glazer on March 11, 1987, October 13-14, 1987, May 4, 1988, and September 7-8, 1988. After ALJ Glazer’s resignation in 1990, the matter was referred to Acting Chief Administrative Law Judge Albert Kostelny.

In August 1991 (7Vi years from complaint and 4 Vi years from start of hearing), ALJ Kostelny issued a decision based upon the hearing transcripts and papers. He recommended that petitioner be ordered to reinstate complainant as a probationary employee and that, upon completion of complainant’s probationary term, he be made a permanent employee with seniority and retirement credits retroactive to January 9, 1984, the original hiring date. Kostelny also recommended that petitioner be ordered to pay complainant eight weeks’ back pay, plus $5,000 in damages for mental anguish.

An administrative appeal ensued and on April 8, 1992, Chief Administrative Law Judge Manuel Del Valle issued an Alternative Proposed Order recommending that complainant be immediately reinstated as a permanent employee and awarded full back pay from February 1984, plus $25,000 compensatory damages. In October 1992, DHR Commissioner Margarita Rosa adopted the recommendations in the alternative proposed order and issued the final determination.

Petitioner commenced this proceeding pursuant to Executive Law § 298 to challenge DHR’s determination. The Appellate Division granted the petition and annulled the DHR determination. Relying on Matter of General Motors Corp. v Rosa (82 NY2d 183), the Appellate Division held that petitioner was denied due process when Commissioner Rosa, who had appeared as general counsel for DHR in the early stages of the proceeding, issued the final order. However, rather than remitting the matter for review by an impartial arbiter and issuance of a final order, as we did in General Motors (supra), the Appellate Division concluded that dismissal of the complaint was required in this case, because, in its view, "the unexplained delay of SVi years between the filing of the complaint and the Commissioner’s final determination * * * caused substantial prejudice to [petitioner]” (199 AD2d 959, 960). The Court determined that the long delay substantially prejudiced petitioner in two respects: it deprived petitioner of the ability to prove whether ALJ Glazer had agreed to make complainant’s application for Social Security disability benefits part of the record, and it significantly increased its liability for back pay.

We granted complainant leave to appeal.

We reject petitioner’s claim that the S^-year delay in this case was substantially prejudicial as a matter of law (see, Matter of Harris & Assocs. v deLeon, 84 NY2d 698, 702 [decided today]). It is well settled that the time limits contained in Executive Law § 297 are directory only (see, Matter of Sarki sian Bros. v State Div. of Human Rights, 48 NY2d 816, 818; Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371, 380-381). They exist for the benefit of complainants and should not be used to oust DHR of jurisdiction and shelter those charged with violating the statute unless there is a showing of substantial actual prejudice attributable to the delay (see, Matter of Harris & Assocs. v deLeon, at 703, supra; Sarkisian, 48 NY2d, at 818, supra; Union Free School Dist., 35 NY2d, at 380-381, supra; see also, Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 177-178, cert denied 476 US 1115). Thus, we must decide whether petitioner was actually prejudiced by the administrative agency’s delay such that dismissal of the complaint was warranted.

In support of its claim of prejudice, petitioner argues that the long delay increased its liability for back pay and urges us to follow Federal case law holding that an employer suffers prejudice when inordinate delay in processing claims substantially increases back pay liability (see, e.g., Equal Empl. Opportunity Commn. v Dresser Indus., 668 F2d 1199, 1204, n 13; Equal Empl. Opportunity Commn. v Alioto Fish Co., 623 F2d 86, 89).

We note that the Federal approach is inconsistent with prior statements of this Court. In Matter of Cortlandt Nursing Home v Axelrod (supra), we stated that "[w]here administrative delay has significantly and irreparably handicapped a private party in mounting a defense in an adversary administrative proceeding, the agency, or court reviewing a final administrative order, is authorized to dismiss the proceeding” (66 NY2d, at 180 [emphasis added]). Increased exposure for back pay liability does not implicate a party’s ability to defend. While the party’s purse is affected, its ability to mount a defense is not. What harm exists can be redressed without resorting to the drastic remedy of dismissing the complaint. An administrative agency awarding back pay, at an appropriate hearing or otherwise, can assess the nature and length of the delay, determine whether it is unreasonable, and adjust back pay accordingly. A reviewing court can similarly remit the matter to the agency with instructions to exclude so much of the award as is attributable to the agency’s unreasonable delay (see, e.g., State Div. of Human Rights [Hudson] v General Motors Corp., 107 AD2d 1081).

Petitioner also claims that it was prejudiced by the delay in that it was deprived of the opportunity to prove whether complainant’s Social Security disability applications were intended to be part of the record. We note that the documents remain available and may be considered by DHR when an impartial arbiter reviews the record anew.

In Cortlandt (supra), this Court was required to determine whether a 10-year delay by the Commissioner of Health in reaching a final Medicaid rate determination was "reasonable” within the meaning of the State Administrative Procedure Act. We set forth the following factors to consider in deciding whether an administrative delay is reasonable:

"(1) the nature of the private interest allegedly compromised by the delay; (2) the actual prejudice to the private party; (3) the causal connection between the conduct of the parties and the delay; and (4) the underlying public policy advanced by governmental regulation” (id., at 178).

These factors, though developed in a different administrative context, provide the appropriate guidance in this case (see, Matter of Harris & Assocs. v deLeon, at 703-704, supra).

The nature of the private interest allegedly compromised by the delay is petitioner’s asserted right to have the complaint against it resolved within a reasonable time. While this right is surely to be respected, we have observed that the time limits in this area are for the benefit of complainants "and cannot be held to shelter those charged with violation of the statute” (Sarkisian, supra, at 818).

There is no indication that petitioner contributed to the administrative delay in any way, but neither is there any evidence of "repetitive, purposeless and oppressive” conduct on the part of DHR (see, Cortlandt, 66 NY2d, at 181).

Finally, the underlying public policy advanced by this administrative determination — addressing and remedying, retroactively and prospectively, an instance of possible discrimination on the basis of handicap — is important to the individual complainant and society in general. We conclude that, on this record, the important public policy is not outweighed by any particularized injury to petitioner.

In sum, we conclude that petitioner has not demonstrated that it was actually prejudiced by agency delay and that the Appellate Division erred in dismissing the complaint on that ground.

Nevertheless, Commissioner Rosa’s dual participation in these proceedings requires annulment of the determination and remission to DHR for de nova review of the record by an impartial arbiter and issuance of a final order pursuant to Matter of General Motors Corp. v Rosa (82 NY2d 183, supra). The new review may or may not result in a finding of discrimination against petitioner. In the event of a finding of discrimination, DHR may consider an appropriate remedy to compensate complainant in a fair and equitable manner, taking into account the unfortunate delays encountered in the final resolution of this matter.

Finally, we reiterate that courts faced with excessive delays in the administrative context "should be careful to closely scrutinize the record for substantial prejudice to a party due to the delay” (Matter of Harris & Assocs. v deLeon, at 705, supra).

Accordingly, the order of the Appellate Division should be modified, without costs, and the case remitted to Supreme Court, Steuben County, with directions to remand to respondent State Division of Human Rights for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith and Levine concur with Judge Ciparick; Judges Titone and Bellacosa concur also for the reasons stated in Judge Bellacosa’s concurring opinion in Matter of Harris & Assocs. v deLeon (84 NY2d 698 [decided today]); Judge Simons taking no part.

Order modified, etc.

       Executive Law § 297 (2) (a) provides: "After the filing of any complaint, the division shall promptly serve a copy thereof upon the respondent and all persons it deems to be necessary parties, and make prompt investigation in connection therewith. Within one hundred eighty days after a complaint is filed, the division shall determine whether it has jurisdiction and, if so, whether there is probable cause to believe that the person named in the complaint, hereinafter referred to as the respondent, has engaged or is engaging in an unlawful discriminatory practice. If it finds with respect to any respondent that it lacks jurisdiction or that probable cause does not exist, the commissioner shall issue and cause to be served on the complainant an order dismissing such allegations of the said complaint as to such respondent.”


source: Caselaw Access Project

author: Bellacosa, J. Levine, J.

license: Public Domain

text:
    [644 NE2d 1331, 620 NYS2d 775]
    The People of the State of New York, Appellant, v Sidney Butler, Respondent.
    Argued October 18, 1994;
    decided December 13, 1994

      POINTS OF COUNSEL

      Jeanine Pirro, District Attorney of Westchester County, White Plains (Maryanne Luciano and Richard L. Hecht of counsel), for appellant.
    Finding no rational view of the evidence to support defendant’s request, the trial court properly refused to submit a down charge of manslaughter in the first degree under the intentional murder count; the Court below’s determination to the contrary is erroneous. (People v Reynoso, 73 NY2d 816; People v Asan, 22 NY2d 526; People v Stanfield, 36 NY2d 467; People v Tai, 39 NY2d 894; People v Cabassa, 79 NY2d 722; People v Green, 56 NY2d 427; People v Vargas, 125 AD2d 512, 69 NY2d 887; People v Green, 134 AD2d 516, 70 NY2d 955; People v DeGraw, 140 AD2d 984; People v Porter, 161 AD2d 811.)

      Jacqueline F. Oliva, White Plains, Stephen J. Pittari and Robert W. Stieve for respondent.
    Having found sufficient evidence of Butler’s intoxication for the jury to consider as negativing an intent to kill, the court was obligated under CPL 300.10 (2) to give the jury the applicable material legal principles on intoxication; and — its own opinion aside — on the necessarily included forms of mental culpability, including manslaughter in the first and second degrees. (People v Elmore, 277 NY 397; People v Aviles, 178 AD2d 201, 80 NY2d 997; People v Lee, 35 NY2d 826; Taylor v Louisiana, 419 US 522; People v Farnsworth, 65 NY2d 734; People v Perry, 61 NY2d 849; People v Orr, 35 NY2d 829; People v Zerillo, 200 NY 443; People v Goodfriend, 64 NY2d 695; People v Falzone, 150 AD2d 249.)
   OPINION OF THE COURT

Bellacosa, J.

The People appeal from an order of the Appellate Division that reversed, on the law, a judgment of Westchester County Court. Defendant was convicted after a jury trial of murder in the second degree and criminal possession of a weapon in the third degree. The Appellate Division ordered a new trial because, in its view, the trial court committed reversible error by refusing defendant’s request to instruct the jury on the lesser-included crime of manslaughter in the first degree. This holding was reasoned to be required because the trial court gave an instruction at defendant’s request on the possible effect of intoxication on his culpable mental state. The dissenting Justice at the Appellate Division granted the People leave to appeal. The People urge that no instructional error as to manslaughter in the first or second degrees was committed. Defendant argues that he is entitled to affirmance either because the Appellate Division majority was correct or, in the alternative, because the trial court erred additionally in denying his request to instruct further down to manslaughter in the second degree. We reverse and remit for further proceedings at the Appellate Division.

L

During the night of April 20, 1990, the homicide victim Anderson was socializing with some friends in her Yonkers apartment building. She decided to visit her cousin, a taxi dispatcher, at his company’s office. She went there and, at approximately 2:00 a.m., she met her cousin and defendant Butler. The trio talked, drank beer, smoked marijuana, and inhaled cocaine for several hours. At approximately 4:45 a.m., the taxi dispatcher called an end to the "party” and offered defendant and decedent a taxi ride. The latter two were described as being engaged in friendly conversation during the taxi ride as they next proceeded to decedent’s apartment at about 5:00 a.m. Decedent was last seen alive at 6:00 a.m. Neighbors discovered decedent lying semiconscious on the floor just outside her apartment, covered with blood, at approximately 7:00 a.m. She died in the hospital emergency room from three head contusions and 34 kitchen knife stab wounds, of which nine were fatal.

The police investigated, arrested and charged defendant in the killing. He was tried before a jury and requested jury instructions on intoxication and lesser-included homicide levels of manslaughter in the first degree and second degrees. The trial court gave the intoxication instruction, but refused the request with respect to the lesser-included offenses. The court reasoned that based on the brutality and ferocity of the attack, no reasonable view of the evidence could support either lesser manslaughter count (CPL 300.50; see, Penal Law §§ 125.20,125.15).

The jury’s conviction was overturned by the Appellate Division, on the law (196 AD2d 659). It ordered a new trial solely for the reason that the trial court should have given only the lesser-included offense instruction for manslaughter in the first degree.

IL

At the outset, the correctness of the intoxication instruction is not before us. For purposes of the dispositive analysis of the instructional issue involving the lesser-included manslaughter offenses, the intoxication instruction, although based on a thin evidentiary predicate, is deemed warranted in this case (see, People v Perry, 61 NY2d 849, 850, citing People v Orr, 43 AD2d 836, affd 35 NY2d 829; People v Farnsworth, 65 NY2d 734, 735; see also, People v Gaines, 83 NY2d 925, 927; People v Rodriguez, 76 NY2d 918, 920; Penal Law § 15.25). The intoxication instructional ruling sets the stage for the customary appellate review of the lesser-included instructional issues, as presented respectively by each side before us.

Contrary to defendant’s assertions, the Appellate Division’s rationale, and the discrete instructional trial court error propounded by Judge Levine, we conclude that a trial court’s decision to give a defendant an intoxication instruction does not mechanically trigger a corresponding obligation for the trial court to give defendant complementary lesser-included offenses instructions within the homicide classification. The two species of instructions — Penal Law § 15.25 (intoxication) and CPL 300.50 (charging lesser-included offense) — may often be intertwined, but they are distinct and not inexorably and inextricably linked for trial instructional rubrics or for appellate review evaluation. Independent consideration of the complex variety of factual and evidentiary situations facing trial courts should control their rulings and our review. That has been the guiding lesson of our precedents in this area. In other words, the evidence of the particular case, not pure or abstract logic, governs.

Thus, the holding in this case realistically respects the view that in a great many cases in which an intoxication instruction may be warranted and is given, some corresponding lesser-included offense instruction might be necessitated. The rulings, however, must be based on the appraisal of the particular evidence and the possibly reduced scale and difference of culpable mental states. This exceptional case does not fit that generality. Moreover, to create a logical imperative out of this case would clash with the individualized evidentiary assessment principles that are at the heart of this Court’s lesser-included offense instructional development and jurisprudence.

Ill

The textual guide on lesser-included offense instructions is found in CPL 300.50:

"1. In submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense * * *
"2. If the court is authorized by subdivision one to submit a lesser included offense and is requested by either party to do so, it must do so.”

Despite a defendant’s request, a lesser-included offense cannot be submitted to the jury unless two requirements are met. The lesser and the greater offenses must be analyzed in such a manner that it would be impossible to commit the greater offense without, at the same time, committing the lesser offense. A reasonable view of the evidence must also support defendant’s guilt on the lesser offense, but not on the greater offense (People v Cabassa, 79 NY2d 722, 728, cert denied sub nom. Lind v New York, — US —, 113 S Ct 633; People v Glover, 57 NY2d 61, 63; People v Green, 56 NY2d 427, 430; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 300.50, at 659). "If the record demonstrates * * * some * * * rational basis on which the jury might reasonably discredit the proof which would establish defendant’s commission of the greater crime, yet accept that of guilt of the lesser, then the statute compels submission of the lesser offense if requested” (People v Scarborough, 49 NY2d 364, 371). On the other hand, when an instruction on a lesser-included offense would direct the jury " 'to resort to sheer speculation,’ ” it should not be given (id., at 371, quoting People v Discala, 45 NY2d 38, 43; see also, People v Aviles, 80 NY2d 997, 997-998; see also, People v Green, supra, at 432-433).

The trial court, therefore, has the responsibility — usually in tandem but occasionally independent of its intoxication evidence and instruction assessment — to make a thorough and careful evidentiary assessment in the first instance to determine whether the evidence may reasonably support defendant’s guilt on the lesser, but not the greater, offense (People v Cabassa, supra, at 728). Then-Judge Fuld cautioned in a seminal case that "a court should avoid doing anything, such as submitting lower crimes in an inappropriate case, that would constitute an invitation to the jury to foreswear its duty and return a compromise or otherwise unwarranted verdict. Or, to express the matter in somewhat different terms, the jury’s power to dispense mercy, by favoring the defendant despite the evidence, should not be allowed so to dominate the trial proceedings as to impede or interfere with the jury’s primary fact-finding function” (People v Mussenden, 308 NY 558, 563).

We are unpersuaded that, generally and especially not in this case, an arguable intoxication instruction inexorably binds the trial court to instruct automatically on lesser-in-eluded manslaughter offenses, irrespective of particularized evidentiary evaluation. Intent to kill and intent to injure seriously have been said to require the same cognitive abilities (see, Commentary to Criminal Jury Instructions, 1 CJI[NY] 9.45, at 516). Taking this view, an intoxication instruction on a second degree murder charge does not compel an instruction down to manslaughter in the first degree (see, Penal Law § 125.20). The Court unanimously coalesces on that aspect and concludes that the Appellate Division erred in ordering a new trial on that theory. Even were the intent element for intentional manslaughter — intent to seriously physically injure— viewed as one of the " 'fine gradations along * * * [the] single spectrum of culpability’ ” (see, People v Green, 56 NY2d 427, 432, supra), an instruction on intoxication should not dictate a per se lesser-included offense rule devoid of any evidentiary assessment.

Likewise, an intoxication instruction on murder second degree should not compel a trial court to act, in essence and as it were, in a vacuum, and, irrespective of the evidentiary facts, thus allow the jury to decide that a defendant acted recklessly (see, Penal Law § 125.15; see also, People v Mussenden, 308 NY, at 563, supra). To propose, as the dissenting opinion does, that this jury — assuming it was ready to acquit defendant of intentional murder — could find this defendant guilty of reckless manslaughter in the second degree, but not be allowed ever to consider intentional manslaughter in the first degree would create its own anomaly. Simply put, an arguable intoxication instruction should not trigger an abstract and absolute command that defies or contradicts the rational and common sense view of the particular evidence as to either lesser manslaughter offense under the circumstances of this case, as further explained below.

IV.

Procedure, policy, practicalities and sound statutory interpretation and harmonization support reversal in favor of the People’s appeal in this case. We recognize the procedural conundrum that the intoxication instruction may sometimes logically engender. It is not incumbent on this Court, however, in these circumstances, to join two distinct, though related, instructional species into an indissoluble union.

The court’s thorough set of instructions to the jury included this unequivocal, easily understood choice:

"The question is one of degree and it is for you to decide whether the defendant was so intoxicated as to be unable to form the required intent. I will explain later the intent relative to each of the crimes charged.
"Remember, however, that since the People bear the burden of establishing that the defendant acted with the requisite intent you must find the defendant not guilty of a particular crime because of the evidence of intoxication [if] they were unable to prove that the defendant acted with the required intent”.

Thus, if the intoxication feature — emphasizing the Penal Law dictate that intoxication is neither a defense nor affirmative defense — were believed and credited, the jury would have been obligated to acquit defendant on the only indictment count before it — murder in the second degree.

As we learn from the development of the "any view of the evidence” rule in People v Mussenden (308 NY 558, supra) into the CPL "reasonable view” modality, this area of the law is instinct with evidentiary particularity, not pure inflexible logic (cf., 5 Zett, New York Criminal Practice |f 32.3 [4], at 32-62 [stating that " '(i)t is the policy of the law to allow juries a latitude which is not hemmed in by absolute logic,’ ” quoting People v Clemente, 285 App Div 258, 264]). A per se lesser-included offense rule would (1) encourage compromise verdicts where the evidence does not warrant them; (2) counter the traditional, well-established jurisprudential rubrics rooted, statutorily and precedentially, in the reasonable view of the evidence governing a jury’s consideration of potential lesser criminal culpability; and (3) alter, by constricting, the customary appellate review of instructional claims in this field of law.

The People in this case rely heavily on the nature and brutality of the slaying to support the argument that defendant’s actions belie his having formed anything other than intent to kill, irrespective of the arguable intoxication palliative offered to the jury. Reciting the severity of the numerous wounds, nine of which were individually fatal, the People assert that defendant could have acted neither recklessly nor with intent merely to seriously injure (see, e.g., People v Tai, 39 NY2d 894, 895; People v Asan, 22 NY2d 526, 530-531; People v Sanducci, 195 NY 361, 367-368; People v Totterman, 181 NY 385, 388-389; People v Moore, 192 AD2d 560, 561, lv denied 81 NY2d 1077; People v Ochoa, 142 AD2d 741, 741-742, lv denied 72 NY2d 1048; People v Bell, 111 AD2d 926, 927; People v Weems, 105 AD2d 763). We agree that in a case such as this one, no lesser-included offense instruction on either serious injury manslaughter intent or reckless manslaughter was warranted or compelled. The crime was intentional murder in the second degree or nothing, under the law and under the explicit instructions that were given.

In the end, the burden remains always on the People to establish beyond a reasonable doubt that defendant, despite the possible effect of the arguable intoxication evidence, was capable of and did form the necessary intent to kill. The jury did so find. Had it acquitted defendant, under the precise and thorough and correct instructions given, it would be attributable to a failure of the People to satisfy their burden of proof on intentional murder, not that defendant in these circumstances was realistically guilty of some lesser degree of vicious homicide. Applying policy considerations and an evidentiaryrooted appellate analysis, we conclude that the evidence in this case supports the trial court’s ruling to reject the request for both manslaughter lesser-included offenses.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for further proceedings in accordance with CPL 470.25 (2) (d) and 470.40 (2) (b).

Levine, J.

(dissenting). I respectfully dissent. In my view, the trial court erred in refusing to submit to the jury the lesser included offense of manslaughter in the second degree (Penal Law § 125.15 [1] [reckless homicide]). Thus, I would affirm the order of reversal and remittal for a new trial, but on a ground different from that adopted by the Appellate Division.

As the majority notes, we must assume for purposes of this appeal that the proof of defendant’s consumption of drugs and alcohol and their effect on him constituted "sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent [to cause the victim Anderson’s death] on that basis” (People v Perry, 61 NY2d 849, 850) and, therefore, the trial court was correct in giving an intoxication instruction. I also agree with the majority that a validly given intoxication charge does not automatically require the court to instruct the jury on every lesser included offense to the crime charged. The court must make the independent inquiry and determination required by CPL 300.50 (1) for submission of each lesser included offense of the pertinent count of the indictment, whether "there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (id.; see also, People v Glover, 57 NY2d 61, 63).

Applying the required CPL 300.50 (1) analysis here, I also agree with the majority that, on the undisputed facts of this case, notably the vicious infliction of 34 knife stab wounds to Anderson’s body, nine of which were fatal, submission of the lesser included offense of manslaughter in the first degree under Penal Law § 125.20 (1) was not required, and that the Appellate Division erred in so holding. There simply was no evidentiary basis in the record for the jury to have found that defendant’s intoxication created a reasonable doubt as to his intent to cause the victim’s death (the culpability element of murder in the second degree) but not as to his intent to cause the victim serious injury (the culpability element of manslaughter in the first degree under Penal Law § 125.20 [1]). A jury verdict of acquittal of murder in the second degree but guilty of manslaughter in the first degree would not be grounded upon any identifiable basis in the evidence, but on sheer speculation (see, People v Scarborough, 49 NY2d 364, 369, 371; see also, People v Discala, 45 NY2d 38, 43).

At first blush, the same reasoning would seem likewise to apply to the intentional murder lesser included offense of manslaughter, second degree, as "recklessly caus[ing] the death of [Anderson]” (Penal Law § 125.15 [1]); that is, that the jury had no basis upon which to conclude that defendant’s intoxication negated his specific intent to kill but did not negate his awareness and conscious disregard of the substantial and unjustifiable risk that his conduct would cause Anderson’s death (see, definition of "recklessly”, Penal Law § 15.05 [3]). Indeed, it is this reasoning that forms the basis of the majority’s conclusion that, in view of the ferocity of defendant’s attack on Anderson, "[t]he crime was intentional murder * * * or nothing” (majority opn, at 634).

As both I and the majority have already accepted, however, in this case there was sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent to kill. What the majority fails to consider in their analysis is that the Legislature has imposed by statute a limitation on the use of evidence of intoxication to negate criminal culpability: evidence of intoxication cannot be used to negate recklessness (Penal Law § 15.05 [3]; People v Register, 60 NY2d 270, 280; see also, Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 15.25, at 48 ["(voluntary intoxication may not negate a 'reckless’ culpable mental state”]). Thus the Penal Law definition of the reckless level of mental culpability states that "[a] person who creates such a risk [here, of causing death] but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto” (Penal Law § 15.05 [3]).

As we held in People v Register (60 NY2d 270, supra), the purpose of the intoxication proviso in the definition of reckless culpability was to exclude from the fact finder’s consideration of a defendant’s guilt of a reckless crime the effect of intoxication to negate the perpetrator’s awareness and conscious disregard of the substantial risk that his or her conduct would cause the prohibited result.

"The rationale is readily apparent: the element of recklessness itself — defined as conscious disregard of a substantial risk — encompasses the risks created by defendant’s conduct in getting drunk. "Ultimately, the only intended purpose in permitting the jury to consider intoxication in a reckless crime is to negate defendant’s awareness and disregard of the risk. It is precisely that point — the inconsistency of permitting reckless and otherwise aggravating conduct to negate an aspect of the offense — that persuades us that intoxication evidence should be excluded whenever recklessness is an element of the offense” (id., at 280).

It follows from the foregoing that, if in this case manslaughter, second degree (reckless homicide), had been submitted as a lesser included offense to intentional murder, the trial court would have appropriately instructed the jury not to consider the evidence of intoxication in determining defendant’s awareness and conscious disregard that his conduct in inflicting 34 stab wounds (nine of which were fatal) upon the victim would create a substantial and unjustifiable risk of her death. Without consideration of the effect of intoxication on defendant’s mental state, clearly the jury could have inferred defendant’s "conscious disregard” from his acts alone.

It appears self-evident that, in performing the required analysis under CPL 300.50 (1) to determine whether manslaughter, second degree (reckless homicide), should have been submitted here as a lesser included offense to intentional murder, we must take into account that the jury would, thus, have been instructed to consider the effect of defendant’s intoxication on his guilt of murder, but not on his guilt of manslaughter in the second degree. That being so, the conclusion appears inescapable that there would indeed have been a rational basis for the jury to have acquitted defendant of murder and yet convicted defendant of manslaughter, second degree (People v Scarborough, supra), and, therefore, the trial court committed reversible error in failing to submit that lesser offense to the jury. Accordingly, I vote to affirm the Appellate Division’s order reversing and remitting for a new trial.

Chief Judge Kaye and Judges Simons, Smith and Ciparick concur with Judge Bellacosa; Judge Levine dissents and

votes to affirm in a separate opinion in which Judge Titone concurs.

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.


author: Titone, J. Simons, J. Smith, J.

text:
    [644 NE2d 1353, 620 NYS2d 797]
    Jacqueline Schozer, Respondent, v William Penn Life Insurance Company of New York, Appellant.
    Argued September 20, 1994;
    decided December 6, 1994

      POINTS OF COUNSEL

      Bleakley Platt & Schmidt, White Plains (Robert D. Meade of counsel), for appellant.
    I. The exclusion of the report of the X ray was reversible error. (Hambsch v New York City Tr. Auth., 63 NY2d 723; Marion v Coon Constr. Co., 216 NY 178; Sirico v Cotto, 67 Misc 2d 636; United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254; See Chang Chiu v Garcia, 75 AD2d 594; Meyers v Meyers, 265 App Div 939; Johnson v Lutz, 253 NY 124; Mayor of City of N. Y. v Second Ave. R. R. Co., 102 NY 572; People v Kennedy, 68 NY2d 569; Borchardt v New York Life Ins. Co., 102 AD2d 465, 63 NY2d 1000.) II. The ruling refusing to permit the introduction of the X ray after it was found requires the granting of a new trial. (Ramos v DeMond, 127 AD2d 751; Ando v Woodberry, 8 NY2d 165.)

      Kane Kessler, P. C, New York City (S. Reid Kahn and Lauren Topelsohn of counsel), for respondent.
    I. The trial court properly determined that the X-ray report was not admissible into evidence in the absence of the underlying X ray. (Hambsch v New York City Tr. Auth., 63 NY2d 723; Marion v Coon Constr. Co., 216 NY 178; Ebanks v New York City Tr. Auth., 118 AD2d 363, 70 NY2d 621; See Chang Chiu v Garcia, 75 AD2d 594; Richter v Trailways of New England, 28 AD2d 737; Cellamare v Third Ave. Tr. Corp., 273 App Div 260; Kosiorek v Bethlehem Steel Corp., 145 AD2d 935; Whalen v Avis Rent A Car Sys., 138 Misc 2d 959; Flamio v State of New York, 132 AD2d 594; Sirico v Cotto, 67 Misc 2d 636.) II. The Court below properly determined that the X-ray report was not admissible into evidence as a business record. (Hambsch v New York City Tr. Auth., 63 NY2d 723; Ebanks v New York City Tr. Auth., 118 AD2d 363; Cellamare v Third Ave. Tr.

      Corp., 273 App Div 260; Marion v Coon Constr. Co., 216 NY 178; Toll v State of New York, 32 AD2d 47; Poses v Travelers Ins. Co., 245 App Div 304; Williams v Alexander, 309 NY 283; People v Jackson, 124 AD2d 975; Polcsa v East Riv. Mgt. Corp., 8 Misc 2d 798; Wilson v Bodian, 130 AD2d 221.) III. The trial court properly exercised its discretion by ruling that the X ray purportedly "found” on the last day of trial was not admissible into evidence. (Quoin v Buzzetta Constr. Corp., 69 NY2d 376; Stern v Calzado, 163 AD2d 299; Zarrelli v Littauer Hosp., 176 AD2d 1181; Coming v Carlin, 178 AD2d 576; Sherman v Tamarack Lodge, 146 AD2d 767, 74 NY2d 613; Feldsberg v Nitschke, 49 NY2d 636; Agate v Morrison, 84 NY 672; People v Lugo, 140 AD2d 715, 72 NY2d 1047.) IV. The doctrine of estoppel does not apply to plaintiff’s right to object to the admission of the underlying X ray. (Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175; Metropolitan Life Ins. Co. v Childs Co., 230 NY 285; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359; Farr v Newman, 14 NY2d 183; Atlantic Cement Co. v Fidelity & Cas. Co., 63 NY2d 798; Quain v Buzzetta Constr. Corp., 69 NY2d 376.)
   OPINION OF THE COURT

Titone, J.

In this action to recover life insurance proceeds, we are called upon to determine whether the trial court properly barred the admission of an X-ray report, recorded by a physician as part of the underwriting process, and expert medical testimony concerning the physician’s impression of the X ray, where the underlying X-ray film was unavailable at trial. Because the courts below improperly concluded that the best evidence rule establishes an absolute bar to the admission of that secondary evidence, without permitting defendant to establish any excuse for its nonproduction, we reverse and grant a new trial.

In October 1985, claimant Andrew Schozer applied for a life insurance policy with defendant William Penn Life Insurance Company. At that time, Schozer paid the policy premium for the first year and was issued a "conditional receipt.” The conditional receipt offered claimant’s beneficiary $100,000 in life insurance coverage, provided that claimant was found to be an acceptable health risk under defendant’s "rules, limits and standards.” The insurance company then embarked on an investigation of claimant’s medical history.

Because defendant’s underwriters believed that claimant’s medical history raised some concerns about a potential heart condition that might have disqualified him from the coverage he sought, defendant requested that Schozer complete a physical examination and have an X ray taken. These procedures were completed on March 20, 1986 by one of defendant’s authorized examiners, Dr. Sidney Dann. The X ray was sent to defendant’s medical director, Dr. Walter Ploss, a radiologist, for analysis. Dr. Ploss concluded in a written report which lies at the core of this dispute that Mr. Schozer’s cardiac-thoracic ratio was "17.3/29.5.” The numbers were followed by the letters "EH”, a notation which, according to defendant, stands for enlarged heart.

On April 9, 1986, Schozer died from a cause unrelated to a heart condition. Since defendant had yet to finally accept or reject claimant’s application for insurance at the time of his death, the terms of the conditional receipt govern the relationship between the parties. After claimant’s death, defendant insurer rejected his application, and returned the premium paid.

In March 1988, plaintiff, decedent’s wife, commenced this action against the insurer to recover the insurance proceeds available under the conditional receipt. Defendant disclaimed liability on the ground that Schozer had an enlarged heart at the time of his application which rendered him an unacceptable risk and thus uninsurable at the standard rate.

During discovery and trial, defendant could not locate the 1986 X ray taken by Dr. Dann, which it claimed had been transferred to a Kansas storage facility. In place of the X ray, defendant sought to introduce Dr. Floss’s testimony and his written X-ray report to establish that Schozer’s X ray would have revealed an enlarged heart. Defense counsel contended that an X ray is a writing subject to the best evidence rule, and because the X ray was lost — a fact sought to be proven through the testimony of the custodian of defendant’s records —defendant should have been permitted to establish the contents of that lost writing by any competent secondary evidence. Plaintiff moved to preclude the evidence, advancing the claim that the best evidence rule sets up an absolute bar to the admission of secondary evidence in the absence of the original X ray.

Supreme Court permitted defendant to elicit testimony from its custodian of records concerning the X ray’s loss outside of the jury’s presence, solely to create a record for purposes of appeal. However, the court declined to pass on whether defendant’s offer of proof on the efforts to locate the lost original was sufficient to establish the X ray’s unavailability. Citing the best evidence rule, the court granted plaintiffs motion in limine to preclude defendant from introducing Dr. Floss’s X-ray report and testimony absent the admission of the X ray. Because references to the X ray surfaced during the trial, the trial court instructed the jurors, over defense exception, that the X ray could not be located and that they should not "draw any inference from this ruling concerning the contents of the x-ray.” Just prior to the close of trial, defendant located the X ray. However, the court refused defendant’s request to permit its introduction. The jury returned a verdict for plaintiff in the amount of $100,000, which represented the face amount of the insurance policy, to which interest, costs and disbursements were added for a total judgment of $151,505.

The Appellate Division affirmed. Without advancing its supporting rationale, the Court held that the X-ray report was "inadmissible without the introduction of the underlying X ray” (197 AD2d 510). For the following reasons, we now reverse, and grant a new trial.

The "oft-mentioned and much misunderstood” best evidence rule simply requires the production of an original writing where its contents are in dispute and sought to be proven (Sirico v Cotto, 67 Misc 2d 636, 637; see also, Trombley v Seligman, 191 NY 400; 57 NY Jur 2d, Evidence and Witnesses, § 247, at 496). At its genesis, the rule was primarily designed to guard against "mistakes in copying or transcribing the original writing” (Fisch, New York Evidence § 81, at 50 [2d ed]). Given the technological advancements in copying, in modern day practice the rule serves mainly to protect against fraud, perjury and "inaccuracies * * * which derive from faulty memory” (ibid.).

Under a long-recognized exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence (Trombley v Seligman, 191 NY 400, 403, supra; Fisch, New York Evidence §81, at 49 [2d ed]; see also, Fed Rules Evid, rule 1004) and has not procured its loss or destruction in bad faith (Fisch, New York Evidence §§88-89, at 55-56 [2d ed]). Loss may be established upon a showing of a diligent search in the location where the document was last known to have been kept (see, Cole v Canno, 168 App Div 178; Dan v Brown, 4 Cow 483, 491; 57 NY Jur 2d, Evidence and Witnesses, § 262, at 518), and through the testimony of the person who last had custody of the original (see, Fisch, New York Evidence §§ 88-89, at 55-56 [2d ed]). Indeed, the more important the document to the resolution of the ultimate issue in the case, "the stricter becomes the requirement of the evidentiary foundation [establishing loss] for the admission of secondary evidence” (Harmon v Matthews, 27 NYS2d 656, 663, citing People v Dolan, 186 NY 4, 13). In other words, the court should give careful consideration to the possible motivation for the nonproduction of the original in determining whether the foundational proof of loss was sufficient.

Such a mitigating principle is necessary since a strict requirement of the original writing would serve to extinguish otherwise valid legal claims or defenses where a party has, through no mischief or bad faith, lost or destroyed an original. As stated by one commentator, the failure to excuse the loss of an original "would in many instances mean a return to the bygone and unlamented days in which to lose one’s paper was to lose one’s right” (2 McCormick, Evidence § 237, at 76 [Practitioner’s 4th ed]).

The courts of this State have applied this standard formulation of the best evidence rule and its exemption for "unavailable” originals with equal force to an unproduced X ray and the derivative evidence offered in its place to describe its contents (see, See Chang Chiu v Garcia, 75 AD2d 594; Sirico v Cotto, 67 Misc 2d 636, supra). In accordance with this framework, the original X-ray film must generally be produced to prove its contents (Fed Rules Evid, rule 1002; see also, 5 Weinstein, Evidence If 1001 [2] [01]). In treating an X ray as a "writing,” New York’s scheme parallels the formulation supplied by the Federal Rules of Evidence, which expressly include X rays in the definition of a "photograph”, and in turn define a photograph as a writing subject to the original writing rule (see, Fed Rules Evid, rule 1001 [2]). Indeed, our application of the best evidence rule to X rays is not unique, but is symbolic of an approach followed in a number of States which have either drafted their statutory definitions of a "writing” to include X rays for best evidence rule purposes (see, e.g., NJ Rules of Evid § 801 [e], and 1994 comment; NC Gen Stat § 8-45.1; Ore Rev Stat § 40.550 [3] [Ore Evid Code, rule 1001 (3)]; Tex Rules of Civ Evid, rule 1001 [2]) or have judicially applied the best evidence rule to X rays (see, e.g., Hernandez v Pino, 482 So 2d 450 [Fla App 1986]; Daniels v Iowa City, 191 Iowa 811, 183 NW 415, 416 [1921]; Fuller v Lemmons, 434 P2d 145, 147 [Okla 1967]). An expanded definition of "writings” is employed in recognition of the fact that evidentiary rules concerning the admissibility of originals should be fashioned "with a breadth sufficient to encompass modern techniques for storing and retrieving data” (see, Hippard, Article X: Contents of Writings, Recordings, and Photographs, 20 Hous L Rev 595, 599, n 17).

As in the case of any other lost original, once the absence of an X-ray film is excused, all competent secondary evidence is generally admissible to prove its contents (see, American Natl. Ins. Co. v Points, 81 SW2d 762, 767 [Tex Civ App] [expert testimony of contents of X ray rendered unavailable because located outside State was admissible as secondary evidence of its contents]), provided that its admission does not offend any other exclusionary rule or policy (see, 5 Weinstein, Evidence ]f 1001 [2] [01]). No categorical limitations are placed on the types of secondary evidence that are admissible. Nonetheless, the proponent of such derivative proof has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original. Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and "correctly reflects the contents of the original” before ruling on its admissibility (United States v Gerhart, 538 F2d 807, 809 [8th Cir 1976]; see also, Marion v Coon Constr. Co., 216 NY 178, 182). For example, when oral testimony is received to establish the contents of an unavailable writing, the proponent of that proof must establish that the witness is able to recount or recite, from personal knowledge, "substantially and with reasonable accuracy” all of its contents (Richardson, Evidence § 599, at 596 [Prince 10th ed], citing Edwards v Noyes, 65 NY 125; 2 McCormick, Evidence § 231, at 62 [Practitioner’s 4th ed]). Once a sufficient foundation for admission is presented, the secondary evidence is "subject to an attack by the opposing party not as to admissibility but to the weight to be given the evidence, with [the] final determination left to the trier of fact” (Gerhart, 538 F2d, at 809, supra).

Placement of this heavy foundational burden on the proponent of secondary evidence to prove its accuracy as a derivative source of proof serves to reduce the dangers of fraud and prejudice identified by Judge Simons in dissent as the basis for his unconditional opposition to the receipt of secondary evidence of an X ray (see, dissenting opn, Simons, J., at 651). Indeed, those same dangers exist any time an original document is lost — even when the writing is a contract or lease— and a witness is called upon to recount its terms. In other words, the opponent is always at a disadvantage when cross-examining a witness about a lost document, but no valid reason exists to assume that some greater degree of mistrust should be placed on the loss of an X ray so as to warrant application of a different rule. Additionally, the proponent of secondary evidence will naturally be discouraged from introducing "less convincing secondary evidence” because "an opponent may cause the jury to draw an unfavorable inference from such a strategy” (Hippard, Article X: Contents of Writings, Recordings, and Photographs, 20 Hous L Rev 595, 611).

We reject the conclusion of Judge Simons in dissent and the courts below that Hambsch v New York City Tr. Auth. (63 NY2d 723, 725) and Marion v Coon Constr. Co. (216 NY 178, 182, supra) created an absolute best evidence rule bar to the admission of secondary evidence in the absence of an original X-ray film. In Hambsch, although the Court concluded that expert testimony should not have been admitted at trial without presentation of the underlying X ray, no best evidence rule objection was lodged and the Court’s holding cannot be construed as addressing the issue (63 NY2d, at 725). Similarly, in Marion, the Court determined that expert opinion testimony should not have been admitted in the absence of the underlying X ray, but its holding rested ultimately on the conclusion that there was no proper foundation to ensure that the missing X ray in fact portrayed the plaintiffs fracture (216 NY, at 182). Thus, the existing case law does not per se preclude a party from introducing secondary evidence of an X ray, if the necessary showing of unavailability is made.

Under the aforementioned guiding principles, the trial court erred in refusing to permit defendant to establish that the X ray was lost, and in ruling that the unavailability of the X ray unconditionally precluded defendant from introducing secondary evidence of its contents. Contrary to the conclusion reached by our dissenting colleague Judge Smith, the fact that the X ray was found prior to the close of trial does not render the admissibility of the proffered evidence a question of limited importance (see, dissenting opn, Smith, J., at 652). That may have been true had the X ray ultimately been admitted into evidence. However, the trial court properly exercised its discretion in precluding admission of the X ray after all witnesses had testified and trial strategies had been fully executed (see, Zarrelli v Littauer Hosp., 176 AD2d 1181; Stern v Calzado, 163 AD2d 299), and the primary focus of our inquiry must remain whether the trial that defendant received was properly and fairly conducted. We conclude that the erroneous evidentiary ruling in this case so tainted the first trial that a new trial is warranted. Because of the procedural disposition of this case, we need not address defendant’s remaining contention.

Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial granted.

Simons, J.

(dissenting). I would affirm.

In my view, the Trial Justice correctly denied admission of the doctor’s report stating that decedent’s heart was enlarged, because the X ray of the heart was not produced in court. The court’s ruling was consistent with an unbroken line of New York decisions which hold that a doctor may not express an expert opinion of what an X ray shows unless the X ray is before the court. We stated it most recently in Hambsch v New York City Tr. Auth.:

"With respect to the claimed fracture, plaintiff’s physician testified that, based on his reading of an X ray of her lower back, she was suffering from spondylolisthesis, a misalignment of the vertebra. It was error to permit the doctor’s testimony without producing the X rays and introducing them into evidence” (63 NY2d 723, 725 [citations omitted]; see also, Marion v Coon Constr. Co., 216 NY 178, 182; Ebanks v New York City Tr. Auth., 118 AD2d 363, revd on other grounds 70 NY2d 621; See Chang Chiu v Garcia, 75 AD2d 594; Richter v Trailways of New England, 28 AD2d 737; Cellamare v Third Ave. Tr. Corp., 273 App Div 260; Gursslin v Helenboldt, 259 App Div 1064).

The rule also has been applied to opinions based on other medical evidence (see, e.g., Kosiorek v Bethlehem Steel Corp., 145 AD2d 935 [tissue slides]; Whalen v Avis Rent A Car Sys., 138 Misc 2d 959, 961 [CAT scans]).

The rule is based on the general proposition that witnesses must testify to facts not opinions and that expert opinions are permitted only because lay jurors are often unable to make an intelligent evaluation of facts without the assistance of experts possessing special knowledge to interpret them. Thus, an expert’s opinion, when allowed, must be based upon facts before the court, either facts acquired by personal observation or evidence in the record which the expert has heard or which has been presented to the expert by a hypothetical question (see, Cassano v Hagstrom, 5 NY2d 643; and see, Richardson, Evidence § 370 [Prince 10th ed]). Dr. Ploss did not personally examine decedent’s heart. Thus, to be admissible his opinion had to find support from evidence in the record. Because the X ray upon which the opinion was based was missing, the record lacked the necessary factual predicate for admission of his opinion.

Defendant seeks to supply the missing foundation by substituting the doctor’s report for the X ray. It contends, and the majority agrees, that under settled New York law it is entitled to offer the report as secondary evidence of what the X ray reveals. To support that statement, the defendant relies upon the brief memorandum in See Chang Chiu v Garcia (75 AD2d 594, supra), which stated ambiguously that the doctor could not testify about matters shown in X rays not in evidence or "whose absence was not explained”, dictum by the Marion Court (supra) and dictum by a Judge sitting in New York City Civil Court (Sirico v Cotto, 67 Misc 2d 636, 637-638). None of these decisions establishes a New York rule that secondary evidence may be received in cases involving missing X rays and, for the reasons stated below, we should not do so now.

As presently understood in this State, the best evidence rule requires that whenever a party seeks to prove the contents of a writing, the original must be produced or its absence satisfactorily explained (Richardson, Evidence §§ 568, 570 [Prince 10th ed]; Fisch, New York Evidence § 81, at 50 [2d ed]). The rule is designed to "reduce[ ] [the] danger of fraud and perjury and [eliminate] inaccuracies and errors which derive from faulty memory or mistakes in copying or transcribing the original writing” (Fisch, op. cit., § 81, at 50). Secondary evidence is permitted to establish the contents of a missing writing only if the absence of the original is excused (see, Richardson, Evidence § 568 et seq. [Prince 10th ed]). Before today, no New York case cited to the Court has extended the rule to X rays.

The majority would do so, however, and permit secondary evidence in the form of the expert witness’ report to the client to establish what the X-ray pictures show. I disagree with that result because, unlike the reproduction of the terms of a lease or a contract, a doctor’s report or testimony is not a "copy” of the X ray and does not purport to be an objective statement of what the X ray shows. It is an expert opinion interpreting the X ray on the basis of the witness’ experience and training. Inasmuch as the report does not establish facts, there is, in the absence of the X ray, no evidence to support the doctor’s opinion even if the report is received.

The majority concludes secondary evidence may be received because there is no difference between receiving secondary evidence of a writing and receiving secondary evidence of an X ray (majority opn, at 646). However, when the contents of a writing are in issue the jury need only evaluate the reliability of the secondary evidence. The evaluation of expert opinion evidence involves a two-step process: the jury must first determine whether the proponent has established the facts upon which the expert opinion rests and then determine the weight which should be accorded the expert’s opinion based upon those facts. It is difficult to see how the expert’s opinion could be considered more than speculative if the only factual foundation for it is the expert’s own analysis of what the unproduced X ray showed.

As a matter of policy there is much sense behind the existing rule. The value of X-ray evidence rests largely on the expert’s interpretation of what it shows. Manifestly, reasonable medical experts can read X rays differently and their readings can only be tested or verified by examining the picture they rely on. A physician — whether testifying in person or submitting a written report — who states an opinion that the patient suffered an enlarged heart (or a spinal injury or any number of other conditions which may be otherwise difficult to clinically diagnose) is wholly insulated from contradiction if the X ray on which that opinion is based is not before the court but appears only by the description in the report to the client. An opposing expert cannot judge the value of the opinion or contradict it if he or she has only the opponent’s statement of what was in the X ray.

The majority would avoid the danger of receiving this secondary evidence by insisting that the court ensure that doctor’s report is "authentic and ’correctly reflects the contents’ ” of the X ray (majority opn, at 645). It is difficult to see how a court could ensure the accuracy of the facts upon which Dr. Ploss decided that decedent had an enlarged heart. The report states only two challenged measurements and, based upon them, the doctor opined that decedent’s heart was enlarged. Whether Dr. Ploss’ report is received as secondary evidence or not, there will be nothing before the court which will enable an opponent to challenge the measurements on which the opinion rests. At best, it can only be said that if the measurements were accurate the heart was or was not enlarged.

It is not a question of "mistrusting” the doctor’s report, as the majority seems to believe (see, majority opn, at 646); it is a question of whether the doctor’s report will supply a factual basis for his opinion. The expert’s opinion has "no greater probative force than the basis on which * * * it is founded” (Matter of Riehl v Town of Amherst, 308 NY 212, 216; see generally, Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 334-335), and the expert’s self-serving and unverifiable reading of the X ray does not supply the necessary predicate to support an opinion. It would seem that in these circumstances the reception of secondary evidence, rather than preventing fraud or prejudice, would facilitate it.

Smith, J.

(dissenting). I would affirm. At the beginning of the trial, the plaintiff sought to preclude the defendant from introducing an X-ray report in the absence of the X ray itself. In addition to the issue of why the X ray was unavailable, there was some question about the accuracy of the report. The court sustained the objection to the report but agreed that the defendant could make a record as to the efforts to find the X ray. Testimony as to the efforts to find the X ray was given to the court in the absence of the jury. Before the end of the trial testimony, the X ray was found, strong evidence that an adequate search for the X ray had not been made.

The principal issues here are (1) whether the introduction of the secondary evidence of an X-ray report is relevant any longer given the posture of this case, (2) whether the trial court should have admitted the X ray after it was found on the last day of the trial and (3) whether in this case the "best evidence” rule precludes the introduction of an X-ray report as a business record and the testimony of the doctor who prepared the report, without the admission of the X ray itself into evidence. On the facts of this case, the trial court did not err or abuse its discretion in its rulings.

I

Defendant issued to plaintiff’s husband a conditional receipt providing that $100,000 in life insurance would become effective if certain conditions were met. After her husband’s death from causes unrelated to his heart, plaintiff commenced this action, alleging defendant is obligated to pay her $100,000. Defendant asserted, inter alla, that conditions precedent for the insurance to become effective were not met in that at the time of his application, plaintiff’s husband suffered a heart disorder which made him an unacceptable risk. At the beginning of the trial, because defendant was not able to locate an X ray taken of plaintiff’s husband, plaintiff moved to preclude defendant from introducing into evidence any report or expert testimony concerning the X ray. During trial, defendant located the X ray and sought to introduce it into evidence. Supreme Court refused the request.

The Appellate Division affirmed and awarded plaintiff the proceeds of her deceased husband’s life insurance policy, stating, inter alia:

"Contrary to the defendant’s contentions, the X ray report it sought to admit into evidence at trial is inadmissible without the introduction of the underlying X ray. * * * Further, the X ray report is not a business record since, in this case, it was not created for the purpose of diagnosis and treatment. * * *
"We find that, given the broad discretionary powers of a trial court to control the case before it, it was not an improvident exercise of discretion for the trial court to preclude admission of the newly found X ray on the last day of trial after all the witnesses had testified.” (197 AD2d 510, 510-511.)

Defendant appeals, pursuant to leave granted by this Court, arguing that the exclusion of the X-ray report and the refusal to permit the introduction of the X ray after it was found require the granting of a new trial.

II

The ruling of the trial court precluding use of the X-ray report without the production of the X ray was not erroneous. When the trial court made its ruling, it stated that defendant could have an opportunity to make a record as to why the X ray was not produced. The jury was told (in language objected to by plaintiff) that the X-ray report was not admitted in the absence of the X ray and that the X ray could not be located. Subsequently, out of the presence of the jury, testimony was taken about the efforts to locate the X ray.

Before any further argument was held on the admissibility of the X-ray report, the X ray was found. Once the X ray was found, the issue of the admission of the secondary evidence, an X-ray report, was no longer the primary issue. The issue became whether the newly found X ray should be admissible into evidence. The issue of whether the X-ray report was admissible is relevant now only if the majority is saying that on a retrial, it may be admitted into evidence.

III

The trial court did not abuse its discretion when it disallowed defendant’s request for the introduction of the X ray found on the last day of the trial after all the witnesses had testified (Feldsberg v Nitschke, 49 NY2d 636, 643; Agate v Morrison, 84 NY 672). Plaintiffs decedent applied for insurance and received a conditional receipt in October 1985. He died in April 1986 of causes unrelated to his heart. Several weeks prior to his death, an X ray of his chest had been taken. At the time the trial commenced in October 1991, the X ray had not been found despite plaintiff’s requests for it. However, other X rays, taken in 1973, 1974, and 1984, were admitted and analyzed. In the opinion of the expert who testified about those X rays, there was no evidence of an enlarged heart or of "cardiac abnormality.”

IV

Given the facts presented here, the preclusion of the X-ray report and the testimony of the doctor who prepared the report, without the admission of the X ray itself into evidence, was proper.

The best evidence rule requires a party who seeks to prove the contents of a document to offer in evidence the original copy of that document. If the party does not offer the best evidence, but rather offers secondary evidence, the adversary’s objection must be sustained. (4 Wigmore, Evidence §§ 1173-1175 [Chadbourn rev 1972].) The expert testimony of the physician regarding his X-ray report was inadmissible, as the best evidence, the actual X ray, was not in evidence.

Defendant argues that the X-ray report was secondary evidence. This report, however, is inadmissible hearsay unless it fits within one of the hearsay exceptions. Defendant contends the report fits within the business record exception of the hearsay rules. The Appellate Division, however, denied the admission of this report, as it was not completed within the normal course of the physician’s business, for purposes of diagnosis and treatment (Hambsch v New York City Tr. Auth., 63 NY2d 723, 725; Marion v Coon Constr. Co., 216 NY 178; Wilson v Bodian, 130 AD2d 221, 231). It is not necessary to agree with this aspect of the Appellate Division decision and to conclude that a doctor’s report could never be admissible in the absence of an X ray.

Here, there was a specific challenge to the accuracy of the report and the measurements it contained. The testimony of one expert made it clear that the measuring of the heart on an X ray is an art as well as a science and that physicians could differ as to those measurements. Thus, plaintiff was not able to make her own measurements from an X ray that defendant was obligated to produce. An ability to cross-exam-inc the doctor making the X-ray report was not an adequate substitute for production of the X ray.

Even if the report could be received as secondary evidence upon a foundation which explained adequately the absence of the X ray, the testimony on the search for the X ray was not sufficient. Moreover, the finding of the X ray raises an issue of the adequacy of any foundation.

For these reasons, I dissent and would affirm the order of the Appellate Division.

Chief Judge Kaye and Judges Bellacosa, Levine and Ciparick concur with Judge Titone; Judges Simons and Smith dissent and vote to affirm in separate opinions.

Order reversed, etc.

      . The conditional receipt provided that, unless each of the listed conditions was "fulfilled exactly, no insurance will become effective prior to policy delivery”. In the event that the applicant failed to comply with any of the conditions, the receipt would be considered null and void and defendant would be liable merely for return of the premium paid. The list of conditions included the following relevant provision: "all Proposed Insureds must be on the Effective Date * * * risks acceptable to the Company under its rules, limits and standards on the plan and for the amount applied for without modification and at the rate of premium paid with the application.”

      . According to trial testimony, the cardiac-thoracic ratio is a comparison of the diameter of the heart with the diameter of the thorax. The ratio is then compared to standardized tables to ascertain whether a claimant has a normal or enlarged heart, based on that person’s height and weight.

      . Although Judge Smith in dissent concludes that defendant’s "testimony on the search for the X ray was not sufficient” to establish its loss (see, dissenting opn, Smith, J., at 654), we decline to rule on the sufficiency of defendant’s proof on that issue, which was submitted merely to create a record and without the benefit of a full evidentiary hearing. That factual determination rests within the province of the trial court in the first instance — a determination which was bypassed in this case because of the trial court’s erroneous placement of an absolute bar on the admission of secondary evidence.

       Congress has established by statute that a photograph or an X ray may be classified as a writing (see, Fed Rules Evid, rule 1001 [2]). Customarily, however, the photograph or X ray is used only as an aid to the witness’ testimony. Testimony of what a photograph or X ray shows, without production of the original is, as the notes of the Advisory Committee point out, "most unusual” (see, Notes of Advisory Comm on Rules, reprinted in 28 USCA, Fed Rules Evid, rule 1002, at 570). The Committee recognized that in the case of X rays "substantial authority” (citing cases) called for the production of the original (ibid,.). Moreover, the reception of secondary evidence of an X ray in Federal courts is justified, at least in part, by the fact that under the Federal Rules an expert may give an opinion based on facts not in evidence (see, Fed Rules Evid, rule 703).


author: Simons, J.

text:
    [645 NE2d 716, 621 NYS2d 283]
    The People of the State of New York, Respondent, v Robert Landes, Appellant.
    Argued October 27, 1994;
    decided December 13, 1994

      POINTS OF COUNSEL

      Robert M. Cohen, Ballston Lake, for appellant.
    I. Defendant did not engage in a sale of securities which is covered by the Martin Act. (People v Glenn Realty Corp., 106 Misc 2d 46; State of New York v Rachmani Corp., 71 NY2d 718; People v Kaminsky, 127 Misc 2d 497; Ledgebrook Corp. v Lefkowitz, 77 Misc 2d 867; Eberhardt v Waters, 901 F2d 1578; Doran v Petroleum Mgt. Corp., 545 F2d 893; Van Dyke v Cobum Enters., 873 F2d 1094; People v Jackson, 65 NY2d 265; People v Scarborough, 49 NY2d 364; People v Bracey, 41 NY2d 296.) II. Defendant did not receive effective assistance of counsel. (Gideon v Wainwright, 372 US 335; Pointer v Texas, 380 US 400; People v Wandell, 75 NY2d 951; People v Mattison, 67 NY2d 462; People v Gomberg, 38 NY2d 307; People v McDonald, 68 NY2d 1; People v Tillman, 179 AD2d 886; Strickland v Washington, 466 US 668; People v Felder, 186 AD2d 1050; People v Ortiz, 76 NY2d 652.) III. Bob Landes could not be found guilty without scienter. (State of New York v Rachmani Corp., 71 NY2d 718; People v Federated Radio Corp., 244 NY 33.) IV. There was no fraud. V. Erroneous rulings deprived defendant of a fair trial. VI. The court should have granted defendant’s posttrial motion. (People v Ranghelle, 69 NY2d 56.)

      David A. Wait, District Attorney of Saratoga County, Ballston Spa (Jerry J. Scarano, Jr., of counsel), and G. Oliver Koppell, Attorney-General, New York City (David C. Farman and R. Verle Johnson of counsel), for respondent.
    I. Defendant offered securities to the public in violation of General Business Law §§ 352-c and 359-e. (Eschbach v Eschbach, 56 NY2d 167; Eyedent v Vickers Mgt., 150 AD2d 202; People v Tejeda, 73 NY2d 958; People v Alexander, 153 AD2d 507; All Seasons Resorts v Abrams, 68 NY2d 81; State of New York v Rachmani Corp., 71 NY2d 718; Securities & Exch. Commn. v Ralston Purina Co., 346 US 119; Van Dyke v Coburn Enters., 873 F2d 1094; Doran v Petroleum Mgt. Corp., 545 F2d 893; Hill York Corp. v American Intl. Franchises, 448 F2d 680.) II. Defendant did receive effective assistance of counsel. (People v McDonald, 68 NY2d 1; People v Gomberg, 38 NY2d 307; People v Mattison, 67 NY2d 462; People v Wandell, 75 NY2d 951; People v Ortiz, 76 NY2d 652; Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; People v Aiken, 45 NY2d 394; People v Lombardo, 61 NY2d 97.) III. This Court should not overrule its long-standing case law holding that neither scienter nor intent to defraud need be proved in order to convict a person of a misdemeanor pursuant to General Business Law § 352-c. (Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289; People v Two Wheel Corp., 71 NY2d 693; Matter of Richardson v Fiedler Roofing, 67 NY2d 246; People v Federated Radio Corp., 244 NY 33; Matter of Badem Bldgs. v Abrams, 70 NY2d 45; State of New York v Rachmani Corp., 71 NY2d 718; People v Barysh, 95 Misc 2d 616; People v Cadplaz Sponsors, 69 Misc 2d 417; People v Florentino, 116 Misc 2d 692.) IV. The jury properly found defendant guilty of count 13, fraud in the sale of securities under General Business Law § 352-c (1). (Matter of Badem Bldgs. v Abrams, 70 NY2d 45; State of New York v Raehmani Corp., 71 NY2d 718; People v Federated Radio Corp., 244 NY 33; People v Rosano, 69 AD2d 643, 50 NY2d 1013; TCT Indus. v Northway, Inc., 426 US 438; Basic Inc. v Levinson, 485 US 224; People v Tellier, 7 Misc 2d 43.) V. The court’s rulings were correct and defendant received a fair trial. VI. Defendant’s posttrial motion was properly denied. (People v Barysh, 95 Misc 2d 616; People v Howard, 127 AD2d 109.)
   OPINION OF THE COURT

Simons, J.

Defendant was indicted on multiple charges involving the unlawful sale of securities. Following a jury trial he was found guilty of one count of fraud in violation of General Business Law § 352-c (1) and one count of unregistered sale of securities in violation of section 359-e (3) of the General Business Law. On appeal the Appellate Division modified the sentence, but sustained the convictions.

In an opinion by then Justice Levine, the Court upheld defendant’s conviction for fraud, noting that the term "fraud” is broadly defined for purposes of the General Business Law, and that the jury could have determined that defendant’s oral misrepresentations to the investors fell within its scope. It also rejected defendant’s argument that he was not subject to the General Business Law’s registration requirements because these transactions were personal sales of stock in a private corporation, not a public offering of securities. Finally, the Court found without merit defendant’s claim that he had been denied effective assistance of counsel at trial because his attorney, who had been involved in drafting the distribution and investment contract, could not both testify and represent defendant at trial. The Court ruled that defendant had failed to demonstrate any significant possibility of conflict of interest, or any effect the circumstances had on the conduct of the defense. A Judge of this Court granted leave to appeal so that we could determine whether this was a public or private offering of securities within the meaning of the statute. We now affirm.

I

In 1988 defendant, the owner of the Four Seasons health food store and cafeteria in Saratoga, decided to distribute and market in the United States a health food product called Nutri-King, a mixture of soy bean and rice manufactured in India. Defendant had entered into an agreement with the manufacturer, obtaining sole distribution rights in the United States. To finance the venture, defendant sought investors who would provide him with cash payments and in exchange receive capital stock in a corporation he planned to form. Defendant orally assured potential investors that the moneys would be placed in certificates of deposit in escrow and spent solely to purchase the product, and that they would eventually receive stock in the planned corporation. Ultimately, 12 individuals invested an aggregate of $100,000 in the venture. Each entered into a written agreement with defendant, an agreement which did not, however, embody the oral promises.

Defendant’s efforts to market the product were unsuccessful and eventually he was indicted on six counts of grand larceny in the third degree and eight counts of criminal violation of article 23-A of the General Business Law (the Martin Act). The Martin Act charges consisted of six counts of fraud in the sale of securities in violation of General Business Law § 352-c (6), one count of fraud in the sale of securities in violation of General Business Law § 352-c (1), and one count of unregistered sale of securities in violation of General Business Law § 359-e (3).

At trial, six of the investors testified. The substance of their testimony was the same: each had been induced to invest in defendant’s planned corporation by his assurances of future success and oral promises that their investments would be secure. When it subsequently became apparent to them that no escrow account had been set up, and no stock was forthcoming, they individually demanded an accounting or a return of their money. No accounting, refund or stock was ever issued. Eventually they learned that although defendant had attempted to promote and arrange for distribution of NutriKing, he had commingled their moneys with his own funds and spent most of it for personal uses, including payment of a loan to his father-in-law, purchase of two automobiles and financing of his daughter’s education. Defendant did not testify at the ensuing trial, but the People introduced his Grand Jury testimony. Before the Grand Jury, defendant denied that he had made any oral promises to the investors and testified that he felt free to use the investor’s funds for his own purposes while he was seeking distributors for Nutri-King.

II

Article 23-A of the General Business Law regulates the offer and sale of securities and commodities in and from New York. The purpose of the statute is remedial: to protect the public from fraudulent exploitation in the offering and sale of securities. In 1955, section 352-c was added, imposing for the first time criminal liability for conduct constituting "fraudulent practices” under the Act, conduct which, in some instances, may be criminal because deceptive or misleading even absent proof of scienter or intent (General Business Law § 352-c [1]; see, Kaufmann, Practice Commentary, McKinney’s Cons Laws of NY, Book 19, General Business Law art 23-A, at 16-19).

Although the Martin Act was enacted in 1921, its present form generally tracks the Federal securities acts of 1933 and 1934. Accordingly, we have looked to Federal court decisions construing those statutes when interpreting our own (see, All Seasons Resorts v Abrams, 68 NY2d 81, supra). Although there are important differences between the State statute and its Federal counterpart, both seek to regulate parties selling securities and to advance the public’s knowledge about the securities offered for sale (see, 15 USC § 77aa; General Business Law § 359-e [3]). Unlike Federal law, however, there is no State requirement for registering securities before they are offered for sale, except in the three specific areas of real estate securities, theatrical syndication offerings, and issues offered solely intrastate (General Business Law § 359-ff). Accordingly, defendant was not required to register these securities but he was subject to the provisions of section 359-e requiring dealers to register with the New York State Department of Law because he was selling securities he had issued (General Business Law § 359-e [1]). He was subject to this registration requirement, however, only if he was selling securities "to the public” (see, General Business Law § 359-e [1] [a]; [3]). That qualification frames the issue before us: were the transactions at issue public offerings or personal sales of stock in a private corporation to which the statute does not apply?

Ill

Because there is no controlling New York authority establishing what constitutes a public offering, the Appellate Division looked to Federal case law for guidance. In Securities & Exch. Commn. v Ralston Purina Co. (346 US 119), the Supreme Court, in addressing the private offering exemption of the 1933 Securities Act, looked first to the purpose of the provision which required the registration of securities. The Court concluded that the purpose of the Act was "to protect investors by promoting full disclosure of information thought necessary to informed investment decisions” (id., at 124). Accordingly, it held that "the exemption question turns on the knowledge of the offerees” (id., at 126-127). The question was further developed by the United States Court of Appeals in Doran v Petroleum Mgt. Corp. (545 F2d 893 [5th Cir 1977]), which noted that its own previous cases had identified four relevant factors: the number of offerees and their relationship to each other and to the issuer, the number of units offered, the size of the offering, and the manner of the offering. Because the Supreme Court in Ralston Purina had pointed to "the knowledge of the offerees” as the key to the exemption, the Doran court concluded that the touchstone of the inquiry was the first factor, the number of offerees and their relationship to each other and the offeror and, to a lesser degree, the manner of the offering. In evaluating that first factor, the court deemphasized the number of offerees. Acknowledging that the more offerees, the greater the likelihood of a public offering, the court recognized that "Cj]ust as an offering to few may be public, so an offering to many may be private” (id., at 901). What concerned it most was that there be disclosed to the offerees, or that they have access to, information that a registration would provide.

The New York statute does not require registration of the securities in all cases and apparently did not require it here. Section 359-e (3) requires only that a dealer of securities file with the Department of Law a statement relating to his or her business history for the five preceding years, criminal record, educational background and the partners or associates in the business. The statute, like its Federal analog requiring dealer registration, is in large measure designed to permit the Attorney-General to investigate sellers and regulate their conduct. It deals with disclosures related to the seller, not the security, and is useful to offerees in only the general sense of warning them about those they are trusting with their money. Thus, the Ralston Purina and Doran tests, which focus on information about the security, must be adapted for State purposes to reflect more than the availability of information about the securities themselves. The court must also consider the information that might otherwise have been available to the offerees if the offeror had complied with the registration statute and the extent to which the relationship of the parties served as a reasonable substitute for information which it would have disclosed.

The Appellate Division correctly addressed all four Do-ran factors as the analytical framework for determining whether an offering is public or private for purposes of General Business Law § 359-e (3), but it implicitly, and correctly in our view, declined to conclude, as the Doran court did, that the availability of information about the investment was virtually determinative.

The sole prior New York case to address the issue of public versus private offering used the same approach as the Appellate Division, even in the context of a sale of cooperative interests in realty, one of the situations in which New York law requires filing of a prospectus (see, People v Glenn Realty Corp., 106 Misc 2d 46). Although the court in Glenn Realty declined to deem the offering public, it based that ruling on consideration of all the relevant factors, the facts that the parties had close relationships as neighbors and friends over several years, a history of extensive past dealings, and representation by counsel.

IV

After similarly weighing the four factors, we conclude that the evidence in the record supports the finding that this offering, though relatively small, was public. There was trial evidence that defendant offered 200 shares of stock in a proposed corporation formed to market Nutri-King. The only asset of the corporation was a contract to acquire the product from India and sell it throughout the United States. The business was to be run by defendant who, it developed at trial, had been a teacher many years ago but went into the business of training race horses and managing health food stores. He had operated Four Seasons with his wife for about SV2 years before embarking on the Nutri-King venture.

There were 12 investors but it does not appear that many of them had any knowledge of this background. One, a Dr. Winters, had known defendant about 10 years and had jointly owned horses with him, but most of those testifying had been recently introduced to defendant by Dr. Winters or by Thomas Viola or had met him casually at a local bagel shop or at the track. Dr. Winters, who introduced at least two investors to defendant, received his shares free, and Mr. Viola was paid fees for locating two other investors. The entire incident from beginning to disillusionment lasted approximately a year and several of the investors were involved for periods of only a few months. The record establishes that most of them knew little about defendant or each other. Indeed, when the venture faltered some of the investors advertised in the newspaper to locate others unknown to them who might have invested and similarly lost their money.

Moreover, although the investors did not know it, they were not treated equally. Some paid $500 a share for their stock, others, unaware of the lower price, paid as much as $1,000 a few months later and, as noted, Dr. Winters received his shares free. Most of the investors received contracts from defendant, although several did not receive the executed contract, or have an opportunity to examine it, until their money had been delivered to defendant and deposited to his account. Indeed, one investor was presented with a contract that denied him voting rights in the corporation.

Thus, it is clear that most of the investors knew little about defendant, the securities he was issuing or their fellow investors. The stock was issued on an ad hoc basis to any who could be induced to buy whether they were acquaintances or strangers. The relationship of many investors was far from intimate, and few if any had sufficient knowledge or access to information of defendant’s background and experience to substitute for what could have been learned about defendant from a State registration, or what could have been learned about the securities under the requirements of Federal law (see, 15 USC § 77aa). As the Appellate Division found, they had to rely completely upon defendant to learn the financial prospects of the new enterprise and when they realized that they did not have all the material information and sought to get it from defendant, "defendant evaded their inquiries” (People v Landes, 192 AD2d 1, 5). While this evidence of conduct subsequent to the purchases is not controlling, it indicates that the relations between the offerees and the defendant was not close enough to obviate the need for Martin Act protection of the public from "fraudulent exploitation in the offering and sale of securities and the protection of investors from such practices” (see, Landes, 192 AD2d, at 4, citing CPC Intl. v McKesson Corp., 70 NY2d 268, 277).

V

We have examined the remaining contentions advanced by defendant and reject them for the reasons stated by the Appellate Division.

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

Chief Judge Kaye and Judges Titone, Bellacosa, Smith and Ciparick concur; Judge Levine taking no part.

Order affirmed.

      . Defendant makes an argument that the transactions at issue were not a sale of securities but an "investment contract” (see, Securities & Exch. Commit, v Howey Co., 328 US 293). The argument is rejected for three reasons: first, our Court has implicitly included investment contracts as "other securities” for Martin Act purposes (see, All Seasons Resorts v Abrams, 68 NY2d 81); second, the Howey analysis depends greatly on the particularized and individualized terms of the contract, and it is clear defendant’s offer was available to anyone willing to invest; and third, it is clear that what defendant ultimately sold to the investors was stock in the company he planned to organize, even though such stock never materialized.

      . The procedural posture of the cases differs from that of the Federal cases to some degree. The Securities Act of 1933 provides in section 4 (2) (15 USC § 77d [2]) an automatic exemption from registration requirements for private offerings; the burden is on the defendant to demonstrate that the transaction at issue is a private offering. Under General Business Law § 359-f (2), the Attorney-General may, upon application, grant exemptions from the registration provisions of section 359-e under certain conditions, one of which is a sale or offer of securities made to fewer than 40 persons; however, defendant made no such application. Because the statutory section at issue here (General Business Law § 359-e [3]) is not an exemption provision, it appears incumbent upon the District Attorney to establish that the transaction is a public offering and that General Business Law § 359-e (3) applies.