text:
    Martin Roofing, Inc., Appellant, v Sheldon S. Goldstein, Also Known as Shelly Goldstein, Respondent.
    Argued October 27, 1983;
    decided November 29, 1983

      POINTS OF COUNSEL

      Louis G. Adolfsen and Stanley Weiner for appellant.
    I. The court below should not have dismissed the complaint since the testimony and permissible inferences from other evidence raised questions of fact which the trial court properly left to the jury. (Rosenkranz v Schriber Brewing Co., 287 NY 322; B. & F. Leasing Co. v Ashton Cos., 42 AD2d 652; Amend v Hurley, 293 NY 587; Cohen v Hallmark Cards, 45 NY2d 493; Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397; Kirton v Yunis Realty, 71 AD2d 765.) II. In view of the evidence of an independent promise, the court below misapplied the relevant law. (Bulkley v Shaw, 289 NY 133; Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397; Lang v Birch Holding Corp., 72 AD2d 806; Kirton v Yunis Realty, 71 AD2d 765; Carlin Constr. Co. v Whiffen Elec. Co., 66 AD2d 684.)

      Robert J. Miller and Jerry A. Weiss for respondent.
    Plaintiff’s claim, based upon an alleged oral promise to answer for the debt of another, is barred by the Statute of Frauds. (White v Rintoul, 108 NY 222; Richardson Press v Albright, 224 NY 497; Bulkley v Shaw, 289 NY 133; Zweighaft v Lang, 276 App Div 1017; Guinn Co. v Mazza, 296 F2d 441; Kossick v United Fruit Co., 166 F Supp 571; Carrolton Assoc. v Abrams, 57 Misc 2d 617; Culkin v Smith, 57 Misc 2d 901; Witschard v Brady & Sons, 257 NY 97; Kahn v Naitove, 171 Misc 504.)
   OPINION OF THE COURT

Simons, J.

Plaintiff seeks to recover $11,000 for materials and services. The sum represents an agreed price of $12,000, less $1,000 previously paid on account, due to plaintiff from Bon-Aire Construction Corporation pursuant to a roofing contract executed by the parties November 13, 1974. After completing the work in May, 1975, plaintiff sued the corporation, and when it failed to appear, plaintiff entered a default judgment on March 14, 1977. On June 7, 1977 plaintiff initiated the present action to recover the loss from defendant, a former officer of Bon-Aire Construction Corporation and a minority stockholder of Bon-Aire Industries, its parent, claiming defendant promised to pay him. Defendant denied the promise but alleged affirmatively that such promise, if made, was unenforceable because it was an oral promise to answer for the debt of another. Plaintiff recovered a jury verdict for its damages, but the Appellate Division reversed the judgment and dismissed the complaint finding the promise unenforceable. The issue is whether plaintiff’s evidence was legally sufficient to establish a prima facie case to take defendant’s promise out of the Statute of Frauds.

The statute provides that a “special promise to answer for the debt, default or miscarriage of another” may not be enforced unless it is in writing (General Obligations Law, § 5-701, subd a, par 2). Generally, the statute applies to circumstances in which the promisor has acted as surety of another (see 3 Williston, Contracts [3d ed], § 475; Restatement, Contracts 2d, § 112). There are surety situations in which no writing is required, however, e.g., if the promisee had no reason to know that the promisor was acting as a surety, when the duties of the principal and surety are joint or where the promise is made to the principal. We deal here with plaintiff’s claim that defendant’s promise is not within the statute because the promisor owed plaintiff an independent duty to pay. As to such promises, it has been stated that “[i]f, as between the promisor and the original debtor, the promisor is bound to pay, the debt is his own and not within the statute. ‘Contrariwise if as between them the original debtor still ought to pay, the debt cannot be the promisor’s own and he is undertaking to answer for the debt of another.’ ” (Witschard v Brody & Sons, 257 NY 97, 99, quoting 1 Williston, Contracts, § 472.) In the latter case the promise is unenforceable in the absence of some memorandum.

The purpose of the rule is evidentiary, to avoid perjury, and incidentally to serve as a cautionary measure to avoid ill-considered actions (3 Williston, Contracts [3d ed], § 452; Farnsworth, Contracts, § 6.3; Restatement, Contracts 2d, § 112). In most oral contracts, a writing is not required because the promisor has received something and the circumstances show probable liability. When a party promises to answer for the debt of another, however, the benefit to the promisor is not apparent and so the promise, if it is to be enforceable under the statute, must either be evidenced by writing or plaintiff must prove it is supported by a new consideration moving to the promisor and beneficial to him and that the promisor has become in the intention of the parties a principal debtor primarily liable (White v Rintoul, 108 NY 222, 227; and see Bulkley v Shaw, 289 NY 133; Witschard v Brody & Sons, 257 NY 97, supra; Richardson Press v Albright, 224 NY 497). Thus, it was plaintiff’s burden within this rule to produce evidence showing a consideration moving to defendant and showing that the parties intended, as ascertained from the language used and from all the facts and circumstances surrounding the transaction (Clark v Howard, 150 NY 232, 238), that an independent contract was created between them which obligated defendant to satisfy the corporation’s debt in any event.

Plaintiff’s evidence established that it was hired by Bon-Aire Construction Corporation in the fall of 1973 or 1974 when its president and sole stockholder, William Martin, was asked to do some roofing work on low income houses the corporation was building in Rockland County. While working on that job, a company official asked Martin to look at the leaking roofs of houses in a nearby project, Lake View Village, and on November 13,1974 plaintiff executed a contract with Bon-Aire Construction Corporation, through Marvin Lifschitz, its treasurer, agreeing to make the repairs on the Lake View Village houses for $12,000. On December 26, 1974 plaintiff sent a bill to the corporation for $6,000 to pay for the work performed and received in return the corporation’s check for $4,000 on account. Subsequently the corporation’s bookkeeper advised Martin that only $1,000 should be credited to the Lake View Village job and that the balance of $3,000 should be applied to other work plaintiff was doing for the corporation on the Eastchester Savings Bank building. Mr. Martin testified that he became concerned by the bookkeeper’s telephone call because the corporation then owed his company $19,000 for work completed on various jobs. He threatened to leave the Lake View Village job, but one of the corporation’s employees told him not to quit, that he was working for defendant and defendant always paid his bills. Martin then went to the corporation’s office and asked defendant for his money. He testified that defendant (by then no longer an officer of the corporation but a director and stockholder of its parent, Bon-Aire Industries) put his arm around him and said, “Bill, I’m going to make sure you get paid. I have to have this work done. Otherwise we don’t get paid for the job. I haven’t become as successful as I am by not paying my debts. I guarantee I will make sure you get paid.” With that Martin went back to work and his company continued to do work for the corporation and also for defendant until 1976. Plaintiff produced evidence that at the time of this conversation the corporation anticipated receiving several hundred thousand dollars from the Urban Development Corporation when the Lake View Village job was done.

Plaintiff was paid by the corporation for other jobs performed for it during 1975 and for subsequent jobs done for it in later years. It was not paid the $11,000 due on the Lake View Village job although the corporation offered to compromise the claim when it subsequently got into financial difficulties. Martin also testified that he received a partial payment from defendant personally on the Eastchester Savings Bank job in April, 1975 although the contract for work was with the corporation.

To prevail plaintiff was required first to establish consideration for defendant’s promise. It recognizes that the required consideration may not rest upon plaintiff’s return to work. That was legal consideration but the rule requires that the consideration must be beneficial to the promisor. Nor may a benefit to defendant be inferred solely because of defendant’s stock holdings in Bon-Aire Industries (see Bulkley v Shaw, 289 NY 133, supra; Richardson Press v Albright, 224 NY 497, supra). Stockholders are not liable for the debts of a corporation and thus a stockholder’s promise to answer for the corporation’s debts ordinarily provides no more than a remote and indirect benefit to him. That is particularly so in this case in which defendant owned no stock in the construction corporation but only a 10% minority interest in its publicly owned parent.

Plaintiff maintains, however, that the beneficial consideration to defendant for his promise is to be found in defendant’s need to complete the job and free up the Urban Development Funds and his need of plaintiff to work on future jobs. Neither is legally sufficient. The benefit accruing from the Urban Development Funds was a benefit to the corporation and benefited defendant as a minority stockholder of the parent corporation only indirectly. The speculation that defendant wished to retain plaintiff’s goodwill for the future was also insufficient because the evidence does not establish what pecuniary advantage, if any, flowed to defendant from that employment and any benefit to him was neither immediate nor direct.

More to the point, under New York law, when the original debt subsists and was antecedently contracted, an oral promise to pay it is enforceable only when there is consideration for the promise which is beneficial to the promisor and the promisor comes under a duty to pay irrespective of the liability of the original debtor (White v Rintoul, 108 NY 222, 227, supra; and see Richardson Press v Albright, 224 NY 497, supra; cf. Rosenkranz v Schreiber Brewing Co., 287 NY 322; see, generally, Calamari and Perillo, Contracts [2d ed], § 19-8, p 687). Thus, even if there was sufficient consideration to defendant, he could not be liable if he was acting as a surety of the corporation.

There are several recognized tests for determining whether the promise created an independent duty to pay irrespective of the original debtor’s liability which may be applied here (see 3 Williston, Contracts [3d ed], § 462).

First, as noted, there was no beneficial consideration to defendant. Second, it is said that presumptively the new promise is unenforceable unless the corporation was discharged from its underlying obligation. Obviously the corporation’s debt was not discharged by the promise here because plaintiff sued the corporation on it. Further, the evidence supports the Appellate Division’s finding that these parties assumed that the corporation was to remain liable and defendant’s promise was to be performed only if the corporation defaulted. Plaintiff executed contracts with the corporation both before and after this job without additional assurances of payment and when it was not paid for the Lake View Village work, it looked to the corporation first for payment. Similarly, although defendant’s oral promise was addressed to plaintiff’s claim of $19,000, which sum included $8,000 due on jobs other than Lake View Village, plaintiff sought and received payment of at least part of $8,000 apparently from the corporation. (The sum of $2,500 was allegedly paid by defendant personally for Eastchester Savings Bank, but it is not clear from the evidence whether the payment was made after a demand on the corporation or after a demand on defendant.) Despite its difficulties, plaintiff never made formal or written demand for payment on defendant until it commenced this action. Indeed, it sued the corporation first, and did so without naming defendant as a party, and took judgment against it on the claim (see Bulkley v Shaw, 289 NY 133, 136, supra). Even when it did sue defendant, the original complaint sought only damage for work, labor and services, and did not allege that defendant had made an independent promise to pay plaintiff. It was not until the complaint was amended, some five years after the promise was made, that plaintiff’s present claim was asserted for the first time. Finally, the form of the promise is significant. The language used, as plaintiff stated it, indicated that it was “guarantee”, i.e., that defendant was acting as a surety “to make sure you [plaintiff] get paid” (see Witschard v Brody & Sons, 257 NY 97, 99, supra).

Plaintiff contends alternatively that it may recover under the “main purpose rule” which permits defendant’s oral promise to be enforced even though he acted as surety of the corporation. The “main purpose rule” rests upon a recognition that in many cases the purpose underlying the statute may be satisfied if the evidence establishes that the promisor’s main purpose (or leading object, as it is also called) is a benefit which he did not enjoy before the promise. The elements of the rule are consideration for the promise and a benefit which accrues to the promisor (see, generally, 3 Williston, Contracts [3d ed], § 470; Farnsworth, Contracts, § 6.3, pp 388-390; Restatement, Contracts 2d, § 116; Calamari, Suretyship Statute, of Frauds, 27 Fordham L Rev 332, 341; Conway, Subsequent Oral Promise to Perform Another’s Duty and the New York Statute of Frauds, 22 Fordham L Rev 119). It is said that the benefit must be immediate, personal, pecuniary and direct (Calamari and Perillo, Contracts [2d ed], § 19-6; see, also, Restatement, Contracts 2d, § 116, Comment 6). The rule is not recognized in this state but whether it or the New York rule is applied, the evidence does not establish consideration beneficial to defendant and plaintiff’s complaint was properly dismissed.

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

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

Order affirmed, with costs.


source: Caselaw Access Project

author: Simons, J. Jasen, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Bruce Register, Appellant.
    Argued September 20, 1983;
    decided November 29, 1983

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (Connie O. Walker of counsel), for appellant.
    I. The trial court committed reversible error by refusing defense counsel’s repeated requests to charge the jury on the effect of extreme intoxication on appellant’s ability to commit depraved indifference murder. (People v Le Grand, 61 AD2d 815, 44 NY2d 737, 439 US 835; People v Poplis, 30 NY2d 85; Darry v People, 10 NY 120; People v Koerber, 244 NY 147; People v Miller, 6 NY2d 152; People v Gonzalez, 293 NY 259; People v Crimmins, 36 NY2d 230.) II. The trial court committed reversible error in charging the jury on depraved indifference murder since the evidence adduced at trial did not support such a charge. (Matter of Winship, 397 US 358; People v Green, 56 NY2d 427; People v Glover, 57 NY2d 61; People v France, 57 AD2d 432; People v Kibbe, 35 NY2d 407; People v McNeely, 77 AD2d 205; People v Graham, 41 AD2d 226; Darry v People, 10 NY 120; People v Le Grand, 61 AD2d 815, 44 NY2d 737, 439 US 835.) III. Reversible error occurred when the trial court improperly limited the direct examination of the expert witness for the defense and, further, abused its discretion by permitting the cross-examination of this witness to exceed the scope of the direct examination. (Cassano v Hagstrom, 5 NY2d 643; People v Di Piazza, 24 NY2d 342; People v Stone, 35 NY2d 69; People v Sugden, 35 NY2d 453; People v Mathias, 20 AD2d 696; People v Panarella, 66 AD2d 968; People v Graydon, 43 AD2d 842; People v Ciaccio, 47 NY2d 431; People v Garcia, 75 AD2d 625; People v Allweiss, 48 NY2d 40.)

      Howard R. Relin, District Attorney CKenneth R. Fisher of counsel), for respondent.
    I. The evidence was sufficient to support the jury’s determination that defendant committed a depraved mind murder. (People v Licitra, 47 NY2d 554; People v Haney, 30 NY2d 328; People v Angelo, 246 NY 451; People v Le Grand, 61 AD2d 815; Darry v People, 10 NY 120; People v Gladman, 41 NY2d 123; People v Lilly, 71 AD2d 393; People v Jernatowski, 238 NY 188; People v Poplis, 30 NY2d 85.) II. The trial court properly refused to charge that intoxication may negate an element of depraved indifference murder. (People v Wingate, 72 AD2d 955.) III. The examination of Dr. Barry was properly controlled by the court in its discretion. (Corelli v City of New York, 88 AD2d 810; People v Vincek, 75 AD2d 412; People v Ciaccio, 47 NY2d 431.)
   OPINION OF THE COURT

Simons, J.

Defendant appeals from an order of the Appellate Division which affirmed a judgment entered after a jury trial convicting him of murder in the second degree (Penal Law, § 125.25, subd 2 [depraved mind murder]) and two counts of assault in the first degree (Penal Law, § 120.10, subd 1). The charges arose from a barroom incident in which defendant shot and killed one man and seriously injured two others. He alleges that the evidence was insufficient to support the murder conviction and that the trial court erred in refusing to instruct the jury that it could consider intoxication evidence to negate an element of the crime of depraved mind murder. He also assigns error in rulings during the examination and cross-examination of his expert witness, claiming that the court limited his right to develop psychiatric evidence on the effect of alcohol on his conduct.

There should be an affirmance. The evidence supports the conviction and the court’s instructions were correct. Moreover, the court did not abuse its discretion in its rulings during the examination of defendant’s expert (cf. People v Cronin, 60 NY2d 430).

The shootings occurred about 12:30 a.m. on January 15, 1977 in a crowded barroom in downtown Rochester. The evidence established that defendant and a friend, Duval, had been drinking heavily that day celebrating the fact that Duval, through an administrative mixup, would not have to spend the weekend in jail. Sometime between 7:00 p.m. and 8:00 p.m., the two men left home for the bar. Defendant took a loaded pistol with him and shortly after they arrived at the bar, he produced it when he got into an argument with another patron over money owed him. Apparently the dispute ended without incident and defendant continued his drinking. After midnight another argument developed, this time between Duval and Willie Mitchell. Defendant took out the gun again, shot at Mitchell but mistakenly injured Lawrence Evans who was trying to stop the fight. He then stepped forward and shot Mitchell in the stomach from close range. At that, the 40 or 50 patrons in the bar started for the doors. Some of the bystanders tried to remove Mitchell to a hospital and while they were doing so, the decedent, Marvin Lindsey, walked by defendant. Lindsey was apparently a friend or acquaintance of defendant although that was the first time he had seen him that night. For no explained reason, defendant turned and fired his gun killing Lindsey.

Defendant did not contest the shootings. In defense, his counsel elicited evidence during the prosecution’s case of defendant’s considerable drinking that evening and he called as his only witness a forensic psychiatrist who testified on the debilitating effects of consuming alcoholic beverages. The jury acquitted defendant of intentional murder but convicted him of depraved mind murder and the two assault counts.

The murder conviction must be supported by evidence that defendant “[u]nder circumstances evincing a depraved indifference to human life * * * recklessly engage[d] in conduct which create[d] a grave risk of death to another person, and thereby cause[d] the death of another person” (Penal Law, § 125.25, subd 2). A person acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk (Penal Law, § 15.05, subd 3), but to bring defendant’s conduct within the murder statute, the People were required to establish also that defendant’s act was imminently dangerous and presented a very high risk of death to Others and that it was committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind (see People v Poplis, 30 NY2d 85, 88; People v Jernatowski, 238 NY 188; Darry v People, 10 NY 120, 148; see, generally, LaFave and Scott, Criminal Law, Depraved-Heart Murder, § 70, pp 541-545; Gegan, A Case of Depraved Mind Murder, 49 St John’s L Rev 417, 447). The crime differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant’s conduct.

Whether the risk of defendant’s conduct was of the type condemned by the Penal Law was to be decided by the trier of the facts aided by appropriate instructions (People v Licitra, 47 NY2d 554, citing People v Haney, 30 NY2d 328; People v Angelo, 246 NY 451). The jury’s proper role, as the Appellate Division found, was to make a qualitative judgment whether defendant’s act was of such gravity that it placed the crime upon the same level as the taking of life by premeditated design (90 AD2d 972, 973; see, also, People v Le Grand, 61 AD2d 815, cert den 439 US 835; ALI Model Penal Code, § 210.2, subd [1], par [b], comment, at pp 21-22 [1980]). It had to determine from the evidence if defendant’s conduct, though reckless, was equal in blameworthiness to intentional murder.

The evidence in the record supports the verdict. Defendant’s awareness of and indifference to the attendant risks was established by evidence that he entered a crowded bar with a loaded gun, he said that he was “going to kill somebody tonight”, or similar words, several times, and he had brought the gun out in the bar once before during the evening only to be told to put it away. Ultimately, he fired the gun three times in the “packed” barroom, conduct which presented a grave risk of death and did in fact result in the death of Marvin Lindsey. His conduct was well within that defined by the statute (see Penal Law, § 125.25, subd 2; § 15.05; People v Jernatowski, 238 NY 188, supra; Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 125.25, p 399; LaFave and Scott, Criminal Law, Depraved-Heart Murder, § 70, p 543).

At the conclusion of the evidence and after the charge, defendant requested the court to instruct the jury on the effect of intoxication (see Penal Law, § 15.25). The court complied with the request when discussing the intentional murder and assault counts, but it refused to charge the jury that it could consider defendant’s intoxication in determining whether he acted “[u]nder circumstances evincing a depraved indifference to human life” in causing the death of Marvin Lindsey. The court held that the mens rea required for depraved mind murder is recklessness and that subdivision 3 of section 15.05 of the Penal Law precludes evidence of intoxication in defense of reckless crimes because it provides that “[a] person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly”. That ruling is assigned as error by defendant. He contends that depraved mind murder contains a different or additional element of mental culpability, namely “circumstances evincing a depraved indifference to human life”, which elevates defendant’s conduct from manslaughter to murder and that this additional element may be negatived by evidence of intoxication (see Penal Law, § 15.25).

The Penal Law does not expressly define the term “element”. However, it does set forth what the “elements” of an offense are and identifies them, as does the common law, as a culpable mental state (mens rea) and a voluntary act (actus reus) (Penal Law, § 15.10). Both are required in all but the strict liability offenses (id.). Consistent with that provision, the statutory definition of depraved mind murder includes both a mental element (“recklessly”) and a voluntary act (“engaging in conduct which creates a grave risk of death to another person”) (see Penal Law, § 125.25, subd 2; §§ 15.05, 15.10). Recklessness refers to defendant’s conscious disregard of a substantial risk (Penal Law, § 15.05, subd 3) and the act proscribed, the risk creating conduct, is defined by the degree of danger presented. Depraved mind murder resembles manslaughter in the second degree (a reckless killing which includes the requirement that defendant disregard a substantial risk [Penal Law, § 125.15, subd 1; § 15.05, subd 3]), but the depraved mind murder statute requires in addition not only that the conduct which results in death present a grave risk of death but that it also occur “[u]nder circumstances evincing a depraved indifference to human life.” This additional requirement refers to neither the mens rea nor the actus reus. If it states an element of the crime at all, it is not an element in the traditional sense but rather a definition of the factual setting in which the risk creating conduct must occur — objective circumstances which are not subject to being negatived by evidence of defendant’s intoxication.

The view is supported by an analysis of the statutory development of the crime. Because of an inability to quantify homicidal risks in precise terms, the Legislature structured the degree of risk which must be present in nonintentional killings by providing that in a depraved mind murder the actor’s conduct must present a grave risk of death whereas in manslaughter it presents the lesser substantial risk of death (see, also, Penal Law, § 15.05, subd 4 [criminal negligence, a failure to perceive a substantial risk]). The phrase “[u]nder circumstances evincing a depraved indifference to human life” refers to the wantonness of defendant’s conduct and converts the substantial risk present in manslaughter into a very substantial risk present in murder (see LaFave and Scott, Criminal Law, § 70, p 542). The predecessor statute referred to “a depraved mind, regardless of human life” (Penal Law, § 1044, subd 2, cited in People v Jernatowski, 238 NY 188, 190, supra) and the older cases, in attempting to explicate this factor, speak of a “depraved heart devoid of social duty and fatally bent on mischief” (see LaFave and Scott, Criminal Law, § 70, p 542). Such phrases, suggesting malice aforethought, have provoked statements that malice or intent is inferred in depraved mind murder (see, e.g., Darry v People, 10 NY 120, supra). However, the focus of the offense is not upon the subjective intent of the defendant, as it is with intentional murder (Penal Law, § 125.25, subd 1), but rather upon an objective assessment of the degree of risk presented by defendant’s reckless conduct (see, e.g., People v Jernatowski, 238 NY 188, supra [firing a bullet into a room defendant knew contained several people]; People v Poplis, 30 NY2d 85, supra [defendant continually beat 3V£-year-old infant over five-day period]; see, also, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 125.25 [depraved mind murder committed when one shoots into a crowd, places a time bomb in a public place or opens the door of a lion’s cage in a zoo]; 8 Zett, NY Crim Prac, par 69.2 [2] [a], [c], p 69-18).

The present statute is derived from this conceptual base but it contains important differences. Thus, whereas the former penal statutes defined depraved mind murder by referring to defendant’s conduct, i.e., “[w]hen perpetrated by any act imminently dangerous to others”, etc., defined mens rea “as a depraved mind” and contained no references to recklessness (see Rev Stat of NY [1829], part IV, ch I, tit I, § 5, subd 2; former Penal Law, § 1044, subd 2), the present statute defines the crime by reference to the circumstances under which it occurs and expressly states that recklessness is the element of mental culpability required. The concept of depraved indifference was retained in the new statute not to function as a mens rea element, but to objectively define the circumstances which must exist to elevate a homicide from manslaughter to murder (see People v Le Grand, 61 AD2d 815, cert den 439 US 835, supra).

In People v Poplis (30 NY2d 85, supra), we construed the present statute and pointed out that depraved mind murder is a crime involving recklessness plus aggravating circumstances. While not explicitly drawing the distinction between the depraved mind mens rea of the former statute and the “circumstances” clause which qualifies the element of recklessness in the new statute, Judge Bergan writing for a unanimous court noted that the new statute eliminated the “psychiatrically complicating” considerations found in the former statute (at p 88) and that it was a distinct improvement over the former statutes which spoke in terms of the operation of defendant’s mind. Our holding that depraved mind murder is distinguishable from manslaughter, not by the mental element involved but by the objective circumstances in which the act occurs, finds sound support in that decision.

Further evidence that “recklessness” is the mens rea, and the only mens rea, of the crime is to be found in other sections of article 15. Section 15.05, which was intended to “limit and crystalize” the culpable mental states involved in the criminal law (see Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 15.05), includes recklessness as one of those culpable mental states but it does not list “depraved indifference”. Moreover, subdivision 1 of section 15.15 provides that when an offense requires a particular culpable mental state, such mental state is designated by use of the terms found in section 15.05. When only one culpable mental state appears in a statute defining an offense, section 15.15 directs that the mental state is presumed to apply to every element of the offense. The only culpable mental state found in section 125.25 which defines depraved mind murder is recklessness; it is defined in subdivision 3 of section 15.05 (which prohibits evidence of intoxication to negative it) and the statute prescribes that it apply to every element of the offense.

The dissenter’s concern that this decision will result in wholesale depraved mind murder prosecutions for what are essentially intentional murders is unwarranted. Our statutes have included a crime of depraved mind murder in its various forms and definitions for over 150 years. Its nature is “well understood” (see People v Poplis, 30 NY2d 85, 88, supra), and the unusual settings appropriate to it have been stated frequently (see citations, supra, at p 277). It is not and never has been considered as a substitute for intentional homicide. That intoxication evidence might under some unusual circumstances negative the intent of an intentional homicide although by virtue of the statute it would have no similar effect on the same act charged as done recklessly in a depraved mind murder should not alter the implementation of the statute. A similar alleged paradox exists presently for an act done under a mistaken belief of fact (see Penal Law, § 15.20, subd 1, par [a]).

In sum, the statutory requirement that the homicide result from conduct evincing a depraved indifference to human life is a legislative attempt to qualitatively measure egregiously reckless conduct and to differentiate it from manslaughter. It does not create a new and different mens rea, undefined in the Penal Law, or a voluntary act which can be negatived by evidence of intoxication. If the objective circumstances under which the crime is committed constitute an element of it, they do so only in the sense that carrying a gun or acting in concert with another are elements of the crime of robbery or that the theft of more than $250 is an element of grand larceny. It is an element which elevates the severity of the offense but it is not an element subject to being negatived by evidence of intoxication as may intent or the physical capacity to act.

In conclusion, it is worth noting that at common law intoxication was not a defense or excuse to criminal charges (People v Koerber, 244 NY 147, 151; People v Leonardi, 143 NY 360; People v Rogers, 18 NY 9), but was viewed instead as an aggravating circumstance which heightened moral culpability (see People v Koerber, supra, at pp 151-152, citing 8 Holdsworth’s History of English Law, pp 442-443). The common-law courts viewed the decision to drink to excess, with its attendant risks to self and others, as an independent culpable act. Despite widespread acceptance of this rule,' legal authorities began to recognize that the debilitating impact of voluntarily consuming excessive amounts of alcohol warranted the admission of evidence of intoxication in some cases, particularly to negative proof that defendant possessed the physical capacity to commit the crime, by striking a blow, for example (see ALI, Model Penal Code, Commentaries to Tentative Draft No. 9, May 8, 1959, p 4). In New York the Legislature further modified the common-law rule by permitting the defendant to introduce evidence of intoxication to aid the jury in determining his motive or intent in committing an act (see former Penal Code [1881], § 22; People v Mills, 98 NY 176).

Notwithstanding this relaxation of the prohibition against use of intoxication evidence, the present statute when enacted in 1967 continued to foreclose the use of intoxication evidence in cases involving recklessness. 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 (see, generally, ALI Model Penal Code [Proposed Official Draft, 1962], § 2.08, subd [2]). In utilitarian terms, the risk of excessive drinking should be added to and not subtracted from the risks created by the conduct of the drunken defendant for there is no social or penological purpose to be served by a rule that permits one who voluntarily drinks to be exonerated from failing to foresee the results of his conduct if he is successful at getting drunk.

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

Jasen, J.

(dissenting). The majority holds that the element of “circumstances evincing a depraved indifference to human life” set forth in subdivision 2 of section 125.25 of the Penal Law is not part of the mens rea of murder in the second degree and that evidence of intoxication is, therefore, inadmissible to negate that element. Since I believe the Legislature intended that a defendant’s alleged intoxication could be used to negate that element of the crime, I respectfully dissent.

Subdivision 2 of section 125.25 of the Penal Law provides that a person is guilty of murder in the second degree when “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person”. This statute evolved without substantial change from the Revised Statutes of 1829 which, inter alia, characterized a homicide as murder “[w]hen perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual”. (Rev Stat of NY [1829], part IV, ch I, tit I, § 5, subd 2.) While this statutory language was changed slightly in 1967, the new statute was intended to be “substantially a restatement” of the former provision. (Temporary State Comm on Revision of Penal Law and Criminal Code, Proposed NY Penal Law, § 339 [1964]; Gilbert Criminal Code and Penal Law [1967], § 130.25, p 1C-63; see, also, Gegan, A Case of Depraved Mind Murder, 49 St John’s L Rev 417, 437.) The majority’s unexplained refusal to recognize this crucial piece of legislative history represents the fundamental flaw in its reasoning. As the majority concedes, the predecessor statutes to subdivision 2 of section 125.25 of the Penal Law defined the requisite mens rea “as a depraved mind” (majority opn, at p 277). Thus, unless a significant change was intended by the Legislature in enacting subdivision 2 of section 125.25, this statute must be similarly construed as characterizing “depraved indifference” as a mens rea. That no such change was intended was made abundantly clear by the State commission in declaring that the new statute was intended to be “substantially a restatement” of the former. (Id.) Nevertheless, the majority disregards entirely the legislative intent behind the statute and states, without any authority in support thereof, that “[t]he concept of depraved indifference was retained in the new statute not to function as a mens rea element, but to objectively define the circumstances which must exist to elevate a homicide from manslaughter to murder”. (At pp 277-278.) Inasmuch as the cases construing this statute have consistently held that “depraved mind” and “depraved indifference” connote a culpable mental state, I see no reason why the majority should reach a different result now.

In Darry v People (10 NY 120, 148), our court held that the statute was designed “to provide for that class of cases, and no others, where the acts resulting in death are calculated to put the lives of [many] persons in jeopardy, without being aimed at any one in particular, and are perpetrated with a full consciousness of the probable consequences.” (Emphasis supplied.) Thus, in construing the 1854 version of the statute, a version which included the element “depraved mind” but not “recklessly”, as requiring proof that the accused was aware of and consciously disregarded the probable consequences of his act, the court viewed the “depraved mind” element as a culpable mental state. (See, also, People v Darragh, 141 App Div 408, 413-414, affd 203 NY 527.) Indeed, the plain wording of the statute compelled that conclusion. Similarly, in People v Jernatowski (238 NY 188, 191), this court held that where a person is “aware that there are human beings in a house [and] fires several shots into it, knowing that some one may be killed and with reckless indifference whether he is or not, he ought not to be relieved from the natural consequences of his act”. (Emphasis supplied.) Recognizing that the depraved mind murder statute required proof of consciousness of the risks of defendant’s conduct and a disregard of same, the court placed great emphasis on the fact that defendant was fully aware of the consequences of his act. It seems clear, therefore, that the defendant in the case before us should be treated similarly and be allowed to show that as a result of his intoxication he was not aware of what he was doing and the risks involved and was not, therefore, competent to consciously disregard those risks. If such proof were offered and believed, defendant could be convicted only of manslaughter.

This conclusion finds strong support in a recent decision of this court where it was reasoned that, under the present version of the statute, “circumstances evincing a depraved indifference to human life” plus “recklessness”, constitutes conduct of “graver culpability” which involves something more serious than mere recklessness. (People v Poplis, 30 NY2d 85, 88.) Although the majority chooses to ignore this plain language, by speaking in terms such as “graver culpability” this court made it abundantly clear that “depraved indifference” was to be construed as a mens rea involving a state of mind more vicious than recklessness but less so than intent. Inasmuch as proof of intoxication is admissible “whenever it is relevant to negative an element of the crime charged” (Penal Law, § 15.25), it should have been admitted here to show that defendant did not possess a state of mind sufficiently culpable to warrant a conviction for murder rather than manslaughter.

While the majority correctly states that “[t]he crime differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant’s conduct” (at p 274), can there be any doubt that to disregard the risks attending his conduct defendant must have at least been aware of those risks? As stated by Arnold D. Hechtman, Counsel to the Commission on Revision of the Penal Law and Criminal Code, the fatal conduct must be performed with “a depraved kind of wantonness.” (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 125.25, p 399.) Wantonness, a term used by the majority in defining what a defendant’s conduct must amount to before a conviction for depraved mind murder can be sustained (at p 277), is commonly defined as requiring a conscious doing of some act with knowledge of existing conditions and an awareness of the risks involved. Thus, it should be clear beyond cavil that “depraved indifference” was intended by the Legislature to constitute a culpable state of mind which could be negated by proof that the actor was so intoxicated he was not aware of existing conditions or the risks inherent in his conduct.

The construction which I would give the depraved mind murder statute is not only consistent with the Legislature’s intent, the history of the statute and precedent of this court, but is also in line with the basic underpinnings of our system of criminal justice. The rule announced by the "majority today effectively eviscerates the distinction between manslaughter in the second degree (Penal Law, § 125.15, subd 1) and murder in the second degree (Penal Law, § 125.25, subd 2) with respect to the accused’s state of mind. The majority holds that mere recklessness is a sufficient mens rea under the depraved mind murder statute if the objective circumstances surrounding the killing “presented a grave risk of death and did in fact result in the death” of another. (At p 275.)

Historically, our criminal law is based upon a theory of “punishing the vicious will.” (Pound, Introduction to Sayre, Cases on Criminal Law [1927], p XXXVI.) It is a deep-rooted part of our jurisprudence that, in the ordinary case, only those offenders who consciously choose to do evil rather than good will be punished. (Morissette v United States, 342 US 246, 250-251.) Under the majority’s rule, however, a person who possessed only a reckless state of mind when he caused the death of another could be convicted of depraved mind murder (Penal Law, § 125.25, subd 2) and sentenced to a term of 15 years to life imprisonment simply because objective circumstances surrounding the killing presented a “grave risk” of death even though the actor, due to intoxication, was unaware of those circumstances and could not appreciate the risks. The majority would also hold that another person who is fully aware of a “substantial and unjustifiable risk” and consciously disregards that risk can only be found guilty of manslaughter in the second degree and sentenced to as little as one and one-half years in jail. (Penal Law, § 125.15, subd 1; § 15.05, subd 3.) While there may be a technical distinction between a “grave” risk and a “substantial” one, the only real difference is about 15 years in prison. (See Gegan, 49 St John’s L Rev, op. cit., at p 442.) To accept this distinction as justification for the disparate penalties which the respective crimes carry defies basic principles of fairness and logic. I simply cannot agree that the Legislature intended that convictions for murder as opposed to manslaughter would turn upon the nature of the objective surrounding circumstances regardless of whether or not the accused was aware of those circumstances or could appreciate the consequences of his conduct.

In my view, the Legislature purposely distinguished between reckless manslaughter and depraved mind murder, intending that depraved indifference plus recklessness would connote a mens rea more culpable than recklessness alone and nearly as culpable as intent. The differences between the mental states set forth in the reckless manslaughter, depraved mind murder and intentional murder statutes are easily delineated, although somewhat difficult to apply. A person acts recklessly in causing the death of another when he is aware of and consciously disregards a substantial and unjustifiable risk. (Penal Law, § 15.05, subd 3.) A person intentionally kills another when his “conscious objective” is to cause the death of the victim. (Penal Law, § 15.05, subd 1.) A person acts with depraved indifference, however, when he engages in conduct whereby he does not intend to kill but is so indifferent to the consequences, which he knows with substantial certainty will result in the death of another, as to be willing to kill. (See Gegan, 49 St John’s L Rev, at p 446, citing English Law Commission Report [Gr Brit, 1966], Imputed Criminal Intent: Director of Public Prosecutions v Smith, par 17.) It is at this point that reckless homicide becomes knowing homicide and the killing differs so little from an intentional killing that parity of punishment is required. (Gegan, 49 St John’s L Rev, op. cit., at p 447.) This is so not because the surrounding circumstances happened to create a “grave” as opposed to a “substantial” risk, but because the accused has acted with greater culpability and a wickedness akin to that of one whose conscious objective is to kill.

By this approach, a person who acts without an awareness of the risks involved, due to intoxication or otherwise, will be punished for manslaughter, while a person who acts in a way which he knows is substantially certain to cause death, although not intending to kill, will be treated the same as a person who intentionally kills. It seems to me that this is the far more reasonable approach and the one intended by the Legislature.

Additionally, I note that the majority’s rationale appears to be inconsistent with the over-all legislative scheme manifest in article 125 of the Penal Law. In enacting subdivision 3 of section 15.05 of the Penal Law, the Legislature declared that a reckless killer should not be permitted to hide behind a defense of intoxication. However, recognizing that a reckless killer, whether intoxicated or not, should not be punished as severely as a person who intentionally takes the life of another, the lawmakers categorized reckless homicide as manslaughter in the second degree (a class C felony), rather than murder in the second degree (a class A-Tfelony). It is, therefore, anomalous to say, as the majority does, that the Legislature intended that an individual who had no awareness of the seriousness of his conduct or the circumstances surrounding his actions due to intoxication and had no intent to kill should be punished as severely as the intentional killer. Furthermore, as a result of the majority’s interpretation of the statute, prosecutors will be able to obtain murder convictions simply by proving that the defendant acted recklessly in killing another. This is so because the simple fact that the defendant’s conduct resulted in the victim’s death will, with 20/20 hindsight, be proof enough to a jury that the circumstances existing at the time and place of the killing presented a “grave risk” of death and that the defendant, therefore, acted with depraved indifference to human life. This result is clearly at odds with the legislative scheme set forth in article 125 of the Penal Law.

Further proof of this fact is manifest in a comparison of the three subdivisions of section 125.25 of the Penal Law. Persons accused of intentionally killing another, as well as those accused of felony murder, are permitted to mitigate their crimes by establishing certain affirmative defenses. (Penal Law, § 125.25, subds 1, 3.) However, under the majority’s construction of subdivision 2, a person charged with depraved mind murder who merely acted recklessly in causing the death of another is precluded from attempting to mitigate his crime to manslaughter.

Finally, with respect to the majority’s statement that “the risk of excessive drinking should be added to and not subtracted from the risks created by the conduct of the drunken defendant for there is no social or penological purpose to be served by a rule that permits one who voluntarily drinks to be exonerated from failing to foresee the results of his conduct if he is successful at getting drunk” (at pp 280-281), I would only note that although this may be an accurate representation of what the majority believes the law should be, the Legislature has decided otherwise (see Penal Law, § 15.25) and it is this court’s responsibility to construe the statute accordingly.

Inasmuch as the legislative history of subdivision 2 of section 125.25 of the Penal Law, prior precedent of this court and basic notions of justice make clear that the element of “depraved indifference” should be construed as a mental state more culpable than recklessness, evidence of defendant’s intoxication should have been admitted, pursuant to section 15.25 of the Penal Law, to negate that element of the offense.

Accordingly, I would reverse the conviction and order a new trial.

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

Order affirmed.

      . Inferred intent is a legal fiction much like the transferred intent concept of felony murder. It is perhaps indicative of the analytical problems involved in these two traditional crimes, depraved mind murder and felony murder, that they were defined in the same subdivision of the old statute (former Penal Law, § 1044, subd 2).

      . The dissent suggests that defendant’s knowledge that his conduct will “with substantial certainty * * * result in the death of another” is part of the definition of depraved mind murder (dissent, at p 285). That language is not found in our statute (see Penal Law, 8 125.25, subd 2). The quotation is based upon a legislative history from an unrelated English Law Commission Report which is quoted in an article of Professor Gegan dealing principally with People v Kibbe (35 NY2d 407) (Gegan, A Case of Depraved Mind Murder, 49 St John’s L Rev 417).

      . A leading lexicon defines “wantonness” as: “Conscious doing of some act or the omission of some duty with knowledge of existing conditions and consciousness that, from the act or omission, injury will likely result to another. Conscious failure by one charged with a duty to exercise due care and diligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable results of such failure. A reckless or intentional disregard of the property, rights, or safety of others, implying, actively, a willingness to injure and disregard of the consequences to others, and, passively, more than mere negligence, that is, a conscious and intentional disregard of duty.” (Citations omitted.) (Black’s Law Dictionary [5th ed], p 1419.)

      . While I would agree with the majority that the Legislature could constitutionally exclude intoxication as a factor which negates the element of “depraved indifference” just as it has with respect to the element of “recklessness” (see Penal Law, § 15.05, subd 3), the simple fact is that the Legislature has not done so; indeed section 15.25 of the Penal Law has done just the opposite.

      . As the majority correctly points out, the construction I would give to subdivision 2 of section 125.25 “is not found in our statute”. (At p 279, n 2.) I note parenthetically that neither is the majority’s. Moreover, the construction I urge is consistent with the legislative history of the statute, the cases construing it and basic principles of criminal justice. That the English Law Commission, whose criticism of reasoning similar to the majority’s (see Director of Public Prosecutions v Smith [1961], AC 290, 3 WLR 546) resulted in the enactment of the English Criminal Justice Act of 1967 overturning the Smith decision, agrees with my view, does not detract from the correctness of my position.
      I would also note that the failure to specifically define “depraved indifference” in subdivision 1 of section 15.15 is irrelevant, for that statute, by its own terms, was not intended to be an all inclusive list of the mental states to be found in the Penal Law. The majority’s reliance on said omission is, therefore, misplaced.

      . It is curious that the majority would opine that the depraved mind murder statute “is not and never has been considered as a substitute for intentional homicide” and that it would be an unusual case where intoxication would “negative the intent [element] of an intentional homicide [when] it would have no similar effect on the same act charged as done recklessly in a depraved mind murder” (at p 279). Indeed, this is precisely what happened in this case where defendant was acquitted of intentional murder yet the prosecutor was still able to obtain a murder conviction from the jury under the depraved mind murder statute.


author: Kaye, J.

text:
    Chemical Bank, Respondent, v Sandy Sepler et al., Appellants.
    Argued October 26, 1983;
    decided November 29, 1983

      POINTS OF COUNSEL

      Earl Barrison for appellants.
    I. The guarantee terminated in 1975. (Manufacturers Trust Co. v Cavell, 206 Misc 818, 2 AD2d 666; Long Is. Trust Co. v International Inst. for Packaging Educ., 38 NY2d 493; Bankers Trust Hudson Val. v Christie, 68 AD2d 969; Alside Aluminum Supply Co. v Berliner, 32 AD2d 731; Rose v Spa Realty Assoc., 42 NY2d 338; Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175; Kirke La Shelle Co. v Armstrong Co., 263 NY 79; Grad v Roberts, 14 NY2d 70; Rochester Park v City of Rochester, 38 Misc 2d 714, 19 AD2d 776; Sterling Factors Corp. v Freeman, 50 Misc 2d 715.) II. Regardless of whether the guarantee terminated in 1975 there was no consideration to support the extension of credit to Damsel’s suppliers afterwards. (Standard Oil Co. v Koch, 260 NY 156; Allied Chem. Corp. v Ruskin, 39 AD2d 881; American Chain Co. v Arrow Grip Mfg. Co., 134 Misc 321; Utica City Nat. Bank v Gunn, 222 NY 204; Di Sabato v Soffes, 9 AD2d 297.)

      Harold Weisblatt and Thomas J. O’Connor for respondent.
    I. The specific provisions of the guarantee cover the obligations which Chemical Bank seeks to enforce against the guarantors. (Continental Oil Co. v United States, 326 F Supp 266; Lowery v Steward, 25 NY 239; Associated Food Stores v Siegel, 20 Misc 2d 952,10 AD2d 1003, 9 NY2d 816; Chemical Bank v Wasserman, 37 NY2d 249; National Bank v Dogwood Constr. Corp., 47 AD2d 848; Corn Exch. Bank Trust Co. v Gifford, 268 NY 153; Chemical Bank v PIC Motors Corp., 87 AD2d 447; Brainard v New York Cent. R. R. Co., 242 NY 125; Mount Vernon Trust Co. v Bergoff, 272 NY 192.) II. The record on appeal is insufficient to establish any waiver of written notification of termination by course of conduct. (Travelers Ind. Co. v Buffalo Motor & Generator Corp., 58 AD2d 978; White’s Bank v Myles, 73 NY 335; Bakhshandeh v American Cyanamid Co., 8 AD2d 35, 8 NY2d 981; Bright Radio Labs. v Coastal Commercial Corp., 4 AD2d 491, 4 NY2d 1021; Reoux v First Nat. Bank, 17 AD2d 915; Burns v McCormick, 233 NY 230; Central Trust Co. Rochester v Bagliore, 78 AD2d 764; First Nat. Bank v Story, 200 NY 346.) III. Guarantors’ theories of lack of consideration, breach of duty of care, uncompensated surety and interruption of business relationship are not defenses to their guarantee obligations. (Associated Food Stores v Siegel, 20 Misc 2d 952,10 AD2d 1003, 9 NY2d 816; Halpern v Rosenbloom, 459 F Supp 1346; G. M. C. Process Corp. v United States Fid. & Guar. Co., 15 AD2d 766, 12 NY2d 1053; Emerson Garden Elec. Co. v Seaboard Sur. Co., 23 AD2d 624.)
   OPINION OF THE COURT

Kaye, J.

Personal guarantees issued in connection with loans to a corporation may survive repayment of the corporate indebtedness where the guarantees provide that they are continuing until terminated by written notice. We therefore affirm the order of the Appellate Division upholding summary judgment for respondent, Chemical Bank, in its application of appellants’ personal guarantees to subsequent obligations of the corporation acquired by the bank through assignment.

Appellants Sandy Sepler, David Sepler and Lawrence Roth were officers of Damsel Manufacturing Company (Damsel), a closely held corporation in the apparel business. In June, 1972, in order for Damsel to obtain financing from respondent, each appellant signed a guarantee of Damsel’s obligations to respondent. Those identical instruments provided that they were continuing guarantees of all present and future liabilities of the corporation to respondent, whether created directly or acquired by respondent through assignment; they were to remain in effect irrespective of any interruptions in the business relations of Damsel with respondent, subject to appellants’ right at any time to terminate the guarantees by written notice; and their terms could be modified or waived only in writing. Respondent thereafter extended loans to the corporation.

In March, 1974 Damsel, seeking alternate financing arrangements, entered into an agreement with another lender, United Virginia Factors Corporation. By November, 1975, Damsel had paid off all loans received from respondent, and did not borrow directly from respondent thereafter. Respondent continued, however, to factor accounts receivable for several suppliers of Damsel, and as a consequence the corporation continued to issue checks payable to respondent on those accounts. Between 1975 and 1980, Damsel issued approximately 350 such checks to respondent.

Damsel filed for reorganization under chapter 11 of the Bankruptcy Act (US Code, tit 11) in August, 1980. At the time, the corporation was obligated to respondent for merchandise purchased on credit between April and July, 1980 from three suppliers who had in turn factored their accounts receivable to respondent. In March, 1981, respondent brought suit against appellants to enforce their personal guarantees. Special Term granted respondent’s motion for summary judgment, finding that no written notice of termination had ever been sent by appellants to respondent, and concluding that neither the repayment of the initial loans nor the length of time between that repayment and the transactions eventually giving rise to appellants’ liability served to terminate the guarantees. The Appellate Division affirmed, two Justices dissenting.

Any analysis of appellants’ liability under the guarantees must of course begin with the words of the instruments themselves. Each guarantee provides, in relevant part, as follows:

“NOW THEREFORE, in consideration of the premises and of other good and valuable consideration and in order to induce the Bank from time to time, in its discretion, to extend-or continue credit to the Borrower, the undersigned hereby guarantees, absolutely and unconditionally, to the Bank the payment of all liabilities of the Borrower to the Bank of whatever nature, whether now existing or hereafter incurred, whether created directly or acquired by the Bank by assignment or otherwise, whether matured or unmatured and whether absolute or contingent * * *.

“This guaranty is a continuing guaranty and shall remain in full force and effect irrespective of any interruptions in the business relations of the Borrower with the Bank; provided, however, that the undersigned may by notice in writing, delivered personally to or received by registered mail by, an officer of the Bank at the Bank’s office at 349 Fifth Ave., New York, New York, terminate this guaranty with respect to all Liabilities of the Borrower incurred or contracted by the Borrower or acquired by the Bank after the date on which such notice is so delivered or received.”

We have already held in Chemical Bank v PIC Motors Corp. (58 NY2d 1023, affg 87 AD2d 447, 450), that this form of written guarantee used by respondent is a fully integrated, unambiguous contract which by its terms cannot be modified or varied by parol evidence or by an alleged course of conduct. Here, the guarantees executed by appellants, by their explicit terms, apply to the obligations of Damsel at issue, which were “hereafter * * * acquired by the Bank by assignment.”

While appellants gave no written notice of termination, they nonetheless contend that they should not be liable under the guarantees because no “business relationship” existed after the loans were satisfied, and the guarantees accordingly terminated due to the conduct of the parties, the passage of time, and the fact that there was no continuing consideration to support the continuing guarantees. This contention is at odds with both the terms of the guarantees and the applicable law.

Where, as here, a guarantee is continuing, applicable to after-acquired obligations and terminable only by writing, it may not be said to have terminated due to lack of further consideration, or cessation of what one party may have regarded as the “business relationship.” A single, unlimited, continuing guarantee, supported by consideration given once and for all time, is not automatically terminated by a change in the parties’ relationship. (Corn Exch. Bank Trust Co. v Gifford, 268 NY 153; Associated Food Stores v Siegel, 20 Misc 2d 952, mod on other grounds and affd 10 AD2d 1003, affd 9 NY2d 816; 57 NY Jur, Suretyship and Guaranty, § 130.) Unless the parties to a continuing guarantee provide otherwise in the writing, such a guarantee is not limited to the life of loans executed contemporaneously therewith (National Bank v Dogwood Constr. Corp., 47 AD2d 848, 849), and generally cantiot expire by mere conduct (Chemical Bank v PIC Motors Corp., 87 AD2d 447, 450, affd 58 NY2d 1023, supra), change of circumstances (Associated Food Stores v Siegel, 20 Misc 2d 952, 953, mod on other grounds and affd 10 AD2d 1003, affd 9 NY2d 816, supra), or lapse of time (Travelers Ind. Co. v Buffalo Motor & Generator Corp., 58 AD2d 978, 979). Here, the parties expressly provided that the guarantee would apply to obligations acquired in the future by assignment, and would be continuing “irrespective of any interruptions in the business relations of the Borrower with the Bank”. No clearer showing of intent is required.

Appellants’ final argument is that it would be inequitable to enforce the guarantees. But appellants at all times have had the power to extinguish any perceived inequity: they could simply have served a written termination notice upon respondent. Their failure to do so cannot give rise to an equitable claim.

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

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

Order affirmed, with costs.

      . Respondent after 1975 regularly acquired Damsel’s debts through factoring, which it points to as a continuation of the business relationship.

      . Appellants contend that our decision in Rose v Spa Realty Assoc. (42 NY2d 338), suggests that a contract which by its terms required written notice of termination may be terminated by mere conduct of the parties. This is not so. In Rose, we stated that conduct of the parties may be considered in addressing the validity of an oral modification, “[b]ut only if the partial performance be unequivocally referable to the oral modification is the requirement of a writing under [General Obligations Law] section 15-301 avoided”. (42 NY2d, pp 343-344.) Here, appellants do not allege that there was any oral notice of termination. In the absence of such oral notice, mere conduct is unavailing. (See Associated Food Stores v Siegel, 10 AD2d 1003, affd 9 NY2d 816.)


author: Wachtler, J.

text:
    Dennis S. De Long, Individually and as Administrator of the Estate of Amalia De Long, Deceased, Respondent, v County of Erie et al., Appellants.
    Argued September 13, 1983;
    decided November 1, 1983

      POINTS OF COUNSEL

      John J. Heffernan and Peter M. Kooshoian for County of Erie, appellant.
    I. No special relationship existed between the County of Erie and plaintiff’s decedent and therefore the county had no special duty to protect the decedent from the criminal attack of a third party. (Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Motyka v City of Amsterdam, 15 NY2d 134; Steitz v City of Beacon, 295 NY 51; Sanchez v Village of Liberty, 42 NY2d 876, 44 NY2d 817; Riss v City of New York, 22 NY2d 579; Matter of Gryziec v Zweibel, 74 AD2d 9; Florence v Goldberg, 44 NY2d 189; Schuster v City of New York, 5 NY2d 75; Baker v City of New York, 25 AD2d 770; Sorichetti v City of New York, 95 Misc 2d 451.) II. The trial court’s instructions explaining the special relationship rule are prejudicially inadequate and erroneous. (Meagher v Long Is. R. R. Co., 27 NY2d 39; Bergman v Schultz, 274 App Div 1001; Dutton v City of Olean, 60 AD2d 335, 47 NY2d 756; Riss v City of New York, 22 NY2d 579; Davis v Caldwell, 54 NY2d 176; Green v Downs, 27 NY2d 205; Barnevo v Munson S. S. Line, 239 NY 486; Titlebaum v Loblaws, Inc., 64 AD2d 822; Florence v Goldberg, 44 NY2d 189; Zibbon v Town of Cheektowaga, 51 AD2d 448.) III. The admission of expert testimony as to the pecuniary injuries sustained by decedent’s beneficiaries as a result of the death constitutes reversible error. (Zaninovich v American Airlines, 26 AD2d 155; Ferguson v Hubbell, 97 NY 507; Matott v Ward, 48 NY2d 455; Murphy v Erie R. R. Co., 202 NY 242; Ashdown v Kluckhohn, 62 AD2d 1137; Edgecomb v Buckhout, 146 NY 332; Merrill v United Air Lines, 177 F Supp 704; Sachs v Fumex Sanitation, 75 AD2d 595; People v Sugden, 35 NY2d 453; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140.)

      John J. Naples, Corporation Counsel (Carl Tronolone of counsel), for City of Buffalo, appellant.
    I. If the rule advocated by respondents is adopted, there will be a personal rather than a general duty of policy and fire protection; officers are presently liable for their negligence, as we all are, but the rule change will make a municipality liable for malpractice on the part of the police and fire fighters. (O’Connor v City of New York, 58 NY2d 184; Riss v City of New York, 22 NY2d 579; Malerba v Incorporated Vil. of Huntington Bay, 78 AD2d 899, 54 NY2d 863; Libertella v Maenza, 21 Misc 2d 317; Motyka v City of Amsterdam, 15 NY2d 134; Sanchez v Village of Liberty, 42 NY2d 876; Steitz v City of Beacon, 295 NY 51; Dutton v City of Olean, 60 AD2d 335, 42 NY2d 756; Messineo v City of Amsterdam, 17 NY2d 523; Vogel v Liberty Fuel Corp., 52 AD2d 667.) II. The court improperly excluded evidence of fake calls or questionable calls which related to the reasonableness of the dispatcher’s conduct. III. The 911 System is not a joint venture between the City of Buffalo and the County of Erie. (Yonofsky v Wernick, 362 F Supp 1005.)

      Philip H. Magner, Jr., for respondent.
    I. The County of Erie and the City of Buffalo, as operators of the 911 emergency telephone services, are liable for the negligent handling of Amalia De Long’s telephone call. (Bernardine v City of New York, 294 NY 361; Weiss v Fote, 7 NY2d 579; Garrett v Holiday Inns, 58 NY2d 253; Steitz v City of Beacon, 295 NY 51.) II. The County of Erie and the City of Buffalo are liable for breach of a special duty owed to Amalia De Long. (Garrett v Holiday Inns, 58 NY2d 253; Florence v Goldberg, 44 NY2d 189; Schuster v City of New York, 5 NY2d 75; Bloom v City of New York, 78 Misc 2d 1077; Baker v City of New York, 25 AD2d 770; Riss v City of New York, 22 NY2d 579; Dutton v City of Olean, 60 AD2d 335, 47 NY2d 756; Falco v City of New York, 34 AD2d 673, 29 NY2d 918; Pinkney v City of New York, 50 AD2d 928, 40 NY2d 1004; Messineo v City of Amsterdam, 17 NY2d 523.) III. The County of Erie and the City of Buffalo are both liable as participants in a joint venture. (Forman v Lumm, 214 App Div 579; Haxton & Son v Rich, 267 App Div 492.) IV. The trial court did not commit prejudicial error in its instructions to. the jury on the issue of special duty. (Schuster v City of New York, 5 NY2d 75; Florence v Goldberg, 44 NY2d 189; Nelson v Rumsey, 5 AD2d 460; Cohen v Gilbert, 12 AD2d 301.) V. The trial court did not err in excluding evidence of calls labeled “fake” by the City of Buffalo. (Radosh v Shipstad, 20 NY2d 504.) VI. The trial court did not err in admitting the testimony of an economist on the market cost of the services performed by an average housewife in the circumstances of Amalia De Long. (Dougherty v Milliken, 163 NY 527; Zaninovich v American Airlines, 26 AD2d 155; Edgecomb v Buckhout, 146 NY 332; Hoag v Wright, 174 NY 36.)
   OPINION OF THE COURT

Wachtler, J.

In this suit for damages brought by the family and estate of a woman killed by a burglar, a jury found the City of Buffalo and the County of Erie liable for negligent processing of and response to the victim’s call for emergency assistance made on the special 911 number established and serviced by the defendants. The Appellate Division affirmed the judgment with two Judges dissenting and the defendants have appealed.

Two primary issues are presented on the appeal. First, whether by creating the special service, accepting the call for emergency assistance and assuring the caller that help was on the way, the municipal agencies may be said to have established a special relationship with and duty to her, sufficient to hold them liable for negligently directing the police patrol cars to the wrong locality and taking no further action when the responding officers reported no such address as that given. Second, whether the trial court erred in permitting expert testimony concerning the monetary value of a housewife’s services on the issue of damages.

In October, 1976 the decedent, Amalia De Long, resided with her husband and three small children in Kenmore, a village adjacent to the City of Buffalo. Her home at 319 Victoria Boulevard was located approximately 1,300 feet from the Kenmore Police Department. One of her neighbors was a captain in that department.

On the morning of October 25 she telephoned for emergency police assistance by dialing 911. At 9:29 her call was answered by a complaint writer employed by Erie County to respond to such requests. The call, lasting approximately 14 seconds, was recorded in its entirety as follows:

Caller: “Police?”

Complaint Writer: “911.”

Caller: “Police, please come, 319 Victoria right Caller: away.”

Complaint Writer: “What’s wrong?”

Caller:

“I heard a burglar; I saw his face in the back; he was trying to break in the house; please come right away.”

Complaint Writer:

“Okay, right away.”

Caller:

“Okay.”

The complaint writer erroneously reported the address as 219 Victoria, and mistakenly assumed that the call had originated in Buffalo because he knew there was a Victoria Avenue in the city. Accordingly, after stamping the complaint card “flash” to indicate its high priority, he placed it on a conveyor belt which ran through a glass partition to the radio dispatcher for the Buffalo Police Department. At 9:30 the dispatcher broadcast a report of a burglary in progress to patrol cars in the vicinity of Victoria Avenue in the city. Three minutes later the officers who had responded to the call informed the dispatcher that there was no such address and that the highest number on Victoria was 195. At 9:34 the dispatcher “cleared the call”, in effect telling the officers at the scene to disregard it. The dispatcher himself took no further action on the call.

At approximately 9:42 Mrs. De Long was seen running from her house, unclothed and bleeding profusely. She collapsed on the sidewalk in front of her home. A neighbor called the Kenmore Police and within a minute a police car responded — a few minutes later paramedics arrived. However by 9:53 she displayed no vital signs. An autopsy revealed that she had been stabbed several times and had died from loss of blood.

After filing a notice of claim against the city and the county, the decedent’s husband commenced an action seeking damages for wrongful death and conscious pain and suffering.

At the trial it was shown that prior to 1975 the City of Buffalo had adopted the 911 number as the one to call for emergency services, including police and fire protection. At that time a person dialing the number within the city would immediately be connected with the Buffalo Police Department where a complaint writer would take the information and give it to a radio dispatcher who in turn would contact the appropriate patrol cars or other emergency vehicles. The complaint writers, originally police officers and later mostly civilians, together with the dispatchers were trained and supervised by a lieutenant or acting lieutenant from the Buffalo Police Department. In March of 1975 Erie County formed a new agency known as Central Police Services which took over the complaint writing function from the city and extended the 911 service to several communities beyond the city limits, including the Village of Kenmore. Thus in 1975 and 1976 the telephone directory for Erie County listed 911 as the emergency number for the “local police”.

Under the system adopted by the county, however, a 911 call made within the City of Buffalo or the extended area would not automatically connect the caller with the police department servicing the caller’s area. Instead the call would go to the Center for Emergency Services which, pursuant to an agreement with the city, was located in the old 911 room in the Buffalo Police Department headquarters. The stated purpose of the center was to “accept telephone requests for emergency services for all Public Safety Agencies within the service area of the Center, and relay, transfer, or forward such requests to the Public Safety Agency concerned, without requiring the caller to re-dial another telephone number.” At this center the county employed its own complaint writers many of whom, including the one who answered the call in this case, had held the same position with the city. In accordance with the agreement the city was required to provide training, supervision and assistance to the complaint writers for a year or more and was still doing so in October, 1976. A Buffalo police lieutenant or acting lieutenant remained in the room to coordinate the activities of the complaint writers and Buffalo police dispatchers and to furnish assistance of a supervisory nature when necessary.

Most of the procedures previously followed by the city were adopted by the county and incorporated in the “Manual for 911 Services”. The major additional requirement imposed by the county was that the complaint writers obtain information concerning the location or municipality involved so that the complaint could be forwarded to the police department or other emergency service responsible for that area. This was the subject of additional training for those complaint writers who had previously been employed by the city. They were further instructed to determine the origin of the call at the outset because calls from the city were necessarily processed differently from those originating elsewhere. In the case of city calls the complaint card was placed on a conveyor belt which ran to the Buffalo police dispatcher’s office in the room next to the center. For the noncity calls, buttons were installed at the complaint writer’s desk which permitted him to immediately transfer the call to the appropriate agency and monitor it to insure that the connection had been made and that the call had been properly routed.

There was also a standard operating procedure for cases in which officers responding to the scene of a priority complaint reported “no such address”. In that event the dispatcher was required to notify the lieutenant in charge or the complaint writer. They in turn would either replay the recording of the call to check the information or consult one of the street directories or “duplicate street” listings available at the center to determine whether the address provided could be located in another community.

The transcript of the recording and the testimony of various witnesses connected with the center showed that the complaint writer had failed to comply with the applicable regulations in several respects. He had neglected to obtain (1) the caller’s name, (2) the complete street address which would have indicated Victoria Boulevard and not Victoria Avenue as he assumed and (3) the name of the locality or municipality where the call originated. He also neglected to verify the information by repeating it.

In addition, the police dispatcher completely neglected to initiate the follow-up procedures. He had not notified the lieutenant in charge or the complaint writer that the investigating officers could find no such address. He had simply disregarded the call because he assumed it was a “fake”.

On the issue of damages for wrongful death the plaintiff called an economist who, over the defendants’ objection, testified concerning the value of a housewife’s services.

The jury returned a verdict for the plaintiff awarding $200,000 for conscious pain and suffering and $600,000 for wrongful death. Each of the defendants was found 50% responsible for the loss.

The Appellate Division affirmed. Two Justices dissented solely on the ground that a new trial should be granted with respect to the amount of damages recoverable for the wrongful death.

On this appeal the defendants initially contend, as they did in the courts below, that the complaint should be dismissed in its entirety because they owed no special duty to protect the decedent from an attack by a third party. The argument is based on the familiar rule that a municipality cannot be held liable for negligence in the performance of a governmental function, including police and fire protection, unless a special relationship existed between the municipality and the injured party (see, e.g., Garrett v Holiday Inns, 58 NY2d 253; Florence v Goldberg, 44 NY2d 189; Riss v City of New York, 22 NY2d 579; Motyka v City of Amsterdam, 15 NY2d 134; Schuster v City of New York, 5 NY2d 75; Steitz v City of Beacon, 295 NY 51).

This, of course, is not a case in which there was no contact between the victim and the municipality prior to her death. The plaintiff is not seeking to hold the defendants liable as insurers for failing to protect a member of the general public from a criminal act of which they were not aware but should have anticipated and prevented (see, e.g., Weiner v Metropolitan Transp. Auth., 55 NY2d 175; cf. Tuthill v City of Rochester, 27 NY2d 558). He is not urging that there should be a police officer on every corner or at every place where a crime is likely to occur (cf. Steitz v City of Beacon, supra). Nor is this a case in which the police refused a plea for assistance (e.g., Riss v City of New York, supra; cf. Messineo v City of Amsterdam, 17 NY2d 523) or failed to offer assistance when confronted with a situation arguably requiring police intervention (e.g., Pinkney v City of New York, 40 NY2d 1004; Evers v Westerberg, 32 NY2d 684). In those instances it has been urged with some force that the proper allocation of public resources and available police services is a matter for the executive and legislative branches to decide (Riss v City of New York, supra).

In this case the decision had been made by the municipalities to provide a special emergency service which was intended and proclaimed to be more efficient than normal police services. Those seeking emergency assistance were advised not to attempt to call the general number for the local police, which ironically might have avoided the tragedy encountered in this case, but were encouraged to dial the 911 number to obtain a quicker response. In addition, and most significantly, the victim’s plea for assistance was not refused. Indeed she was affirmatively assured that help would be there “right away”. Considering the fact that she was merely a .block and a half from the local police station, and was not yet at the mercy of the intruder, it cannot be said as a matter of law that this assurance played no part in her decision to remain in her home and not seek other assistance. Unfortunately, it only increased the risk to her life.

Under similar circumstances it has been held that a special relationship was created so as to require the municipality to exercise ordinary care in the performance of a duty it has voluntarily assumed. Thus a city may be held liable for neglecting to provide crossing guards for school children when it has voluntarily undertaken the task which the children’s parents could justifiably expect to be regularly and properly performed (Florence v Goldberg, supra). Similarly a municipality which has affirmatively certified a building as safe may be held liable to the owners for injury caused by known, blatant and dangerous violations (Garrett v Holiday Inns, supra; but also see O’Connor v City of New York, 58 NY2d 184). The basic principle, as Judge Cardozo observed, is this: “If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward” (Moch Co. v Rensselaer Water Co., 247 NY 160,167; see, also, Zibbon v Town of Cheektowaga, 51 AD2d 448, app dsmd 39 NY2d 1056).

Whether a special duty has been breached is generally a question for the jury to decide (see, e.g., Florence v Goldberg, supra, p 197). But it should be emphasized that whether the municipality has acted reasonably depends upon the circumstances of the particular case. When an emergency service is involved it must be recognized that the circumstances are often quite demanding and that some mistakes will occur, even when the service is well organized and conscientiously administered. Allowance must be made for this and although any error, however slight, may have dire consequences it will not always justify an award for damages. In this case, however, there was ample basis for the jury to conclude that neither defendant exercised ordinary care in the handling of the call and that they should share responsibility for the foreseeable consequences. We have therefore concluded that there is no basis for reversing and dismissing the complaint against either defendant.

The defendants also contend that the court’s charge to the jury concerning a special relationship was deficient, particularly in view of the fact that the court failed to give the jury any specific instructions with respect to the decedent’s reliance. The defendants correctly observe that this was an essential element of the plaintiff’s cause of action in this case. However, the defendants neglected to bring this omission to the court’s attention when the case was submitted to the jury and therefore the issue is not preserved for review (CPLR 4110-b; see, also, CPLR 4017). We would simply note, as we have above, that there was evidence in the record from which the jury could have found reliance in this wrongful death action (cf. Noseworthy v City of New York, 298 NY 76; Reilly v New York City Tr. Auth., 34 NY2d 764).

The only remaining question is whether the defendants are entitled to a new trial with respect to damages for the wrongful death because the trial court permitted expert testimony concerning the monetary value of a housewife’s services. This was the only legal issue which produced disagreement at the Appellate Division. A majority of that court decided not to follow earlier Appellate Division opinions which had precluded such testimony (Zaninovich v American Airlines, 26 AD2d 155; Ashdown v Kluckhohn, 62 AD2d 1137). The question has frequently arisen in other jurisdictions (see Admissibility and Sufficiency of Proof of Value of Housewife’s Services in Wrongful Death Action, Ann., 77 ALR3d 1175). This, however, is the first occasion this court has had to address the issue.

As a general rule the admissibility of expert testimony on a particular point is addressed to the discretion of the trial court (Selkowitz v County of Nassau, 45 NY2d 97). The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror (People v Allweiss, 48 NY2d 40, 50; Selkowitz v County of Nassau, 45 NY2d 97, supra; Dougherty v Milliken, 163 NY 527).

Here the plaintiff called an economist to offer his opinion of the market value of the types of services performed by the average housewife in the decedent’s circumstances. This evidence was relevant to the issue of damages on the wrongful death cause of action which is fixed by statute as follows: “fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought” (EPTL 5-4.3). When the decedent is a housewife who is not employed outside the home the financial impact on the survivors, aside from compensable losses of a personal nature (see, e.g., Tilley v Hudson Riv. R. R. Co., 24 NY 471), will not involve a loss of income but increased expenditures to continue the services she was providing or would have provided if she had lived.

Undoubtedly most jurors have at least a general awareness of the various services performed by a housewife. It is doubtful, however, that they are equally knowledgeable with respect to the monetary equivalent of those services. Although it was once thought that this was not a subject which would lend itself to scientific inquiry and analysis (see, e.g., Zaninovich v American Airlines, supra), that can no longer be said today. It is now apparent, as a majority of courts have held (see Ann., 77 ALR3d 1175), that qualified experts are available and may aid the jury in evaluating the housewife’s services not only because jurors may not know the value of those services, but also to dispel the notion that what is provided without financial reward may be considered of little or no financial value in the marketplace. We conclude that it was not an abuse of discretion to allow the expert testimony in this case.

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

Chief Judge Cooke and Judges Jasen, Jones, Meyer, Simons and Kaye concur.

Order affirmed, with costs.


author: Chief Judge Cooke.

text:
    The People of the State of New York, Respondent, v Joseph A. Gokey, Appellant.
    Submitted October 21, 1983;
    decided November 29, 1983

      POINTS OF COUNSEL

      Robert J. Hanrahan for appellant.
    The warrantless search of appellant’s closed denim bag in the absence of exigent circumstances while it was within the exclusive control of the police and the seizure of contraband from its recesses and the oral admission obtained from appellant violates the Fourth and Fourteenth Amendments and the New York State Constitution and requires that the evidence be suppressed and the indictment dismissed. (People v Price, 54 NY2d 557; New York v Belton, 453 US 454; People v Belton, 55 NY2d 49; Chimel v California, 395 US 752; People v Caldwell, 53 NY2d 933; Miranda v Arizona, 384 US 436.)

      Lee Clary, District Attorney (Steven J. Greenblatt and Michael A. Gross of counsel), for respondent.
    I. The warrantless search of defendant’s bag incident to his lawful arrest did not violate his Fourth Amendment rights. (United States v Robinson, 414 US 218; Chimel v California, 395 US 752, 396 US 869; New York v Belton, 453 US 454; People v Darden, 34 NY2d 177; People v Perel, 34 NY2d 462; People v De Santis, 46 NY2d 82; United States v Mason, 523 F2d 1122; People v Johnson, 86 AD2d 165; Mincey v Arizona, 437 US 385; People v Belton, 55 NY2d 49.) II. Defendant’s statement was not made in response to a custodial interrogation and is therefore admissible. (Peo

      ple v Rivers, 56 NY2d 476; People v Brooks, 88 AD2d 451; Miranda v Arizona, 384 US 436; Rhode Island v Innis, 446 US 291; Brewer v Williams, 430 US 387; Mapp v Ohio, 367 US 643; People v Sanders, 56 NY2d 51.)
   OPINION OF THE COURT

Chief Judge Cooke.

A duffel bag that is within the immediate control or “grabbable area” of a suspect at the time of his arrest may not be subjected to a warrantless search incident to the arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag. There being no such exigency present at the time police searched defendant’s bag here, the motion to suppress should have been granted.

On the afternoon of March 12,1981, the Watertown City Police Department received a tip from an informant that defendant was traveling on a bus from New Jersey to Watertown with marihuana and hashish in his possession. With an arrest warrant for an unrelated larceny charge in hand, three Watertown police officers and two officers from the Jefferson County Sheriff’s Department waited at the bus terminal. With them was a dog specially trained to detect marihuana. Defendant was observed to be carrying a duffel bag when he disembarked from the bus.

One of the officers approached defendant and informed him that he was under arrest. Defendant was then ordered to place his hands against the wall and to spread his feet so that he could be frisked. When led to the duffel bag, which lay on the ground between defendant’s feet, the dog’s reaction indicated the presence of marihuana. Defendant was then handcuffed. An officer searched the duffel bag and found approximately 11 ounces of marihuana.

After being indicted, defendant moved to suppress the seized marihuana as the fruit of an unlawful warrantless search. County Court, relying on New York v Belton (453 US 454), denied the motion. Defendant pleaded guilty to criminal possession of marihuana in the third degree and the Appellate Division affirmed the conviction, without opinion. This court now reverses.

In New York v Belton (453 US 454, 461, supra), the Supreme Court set forth a general rule under the Fourth Amendment of the United States Constitution that a custodial arrest will always provide sufficient justification for police to search any container within the “immediate control” of the arrestee. Under this standard, it is clear that defendant’s Federal constitutional rights were not violated.

This court has declined to interpret the State constitutional protection against unreasonable searches and seizures so narrowly (see People v Smith, 59 NY2d 454; NY Const, art I, § 12; see, also, People v Langen, 60 NY2d 170, 181). Under the State Constitution, an individual’s right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances. When an individual subjected to arrest has a privacy interest in property within his or her immediate control or “grabbable area”, this court has identified two interests that may justify the warrantless search of that property incident to a lawful arrest: the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment (see People v Smith, 59 NY2d 454, 458, supra; People v Belton, 55 NY2d 49, 52-53).

The reasonableness of a police officer’s assertion of the presence of either or both of these predicates to justify a warrantless search is measured at the time of the arrest. Moreover, the search must have been conducted contemporaneously with the arrest. In People v Smith (supra), for example, this court upheld a search by police of an arrestee’s briefcase that was within the arrestee’s possession at the time of arrest as a reasonable search incident to arrest. Determinative of the search’s validity were the facts that police reasonably believed that defendant was in possession of a weapon as was evidenced by his wearing a bulletproof vest, that the briefcase was large enough to contain a weapon, and that it was not so securely fastened that defendant would have been unable to gain access to it. The officers’ reasonable fear for their safety was found not to have dissipated merely because defendant was moved off a subway platform into a porter’s room less than 10 feet away before the search was initiated. The search of the briefcase was conducted virtually contemporaneously with the arrest and immobilization, by handcuffing, of defendant.

Similarly, in People v Johnson (59 NY2d 1014), a warrantless search of a handbag located approximately two feet from defendant at the time of his arrest, was upheld because police reasonably believed at the time of the search that defendant might gain access to a weapon. In that case, police had received a radio call about a “man with a gun” and were instructed to investigate the premises. When police arrived, the building superintendent warned them that a man had just struck him over the head with an automatic pistol and had attempted to shoot him. Police entered the apartment and, contemporaneously with the defendant’s arrest, dumped out the contents of the bag, which was in easy reach of the defendant, who had not yet been handcuffed.

In the present appeal, the People have not asserted the presence of any exigency to justify the warrantless search of defendant’s duffel bag. The police sought defendant’s arrest for two nonviolent crimes and the People concede that “in all frankness there was no immediate suspicion by the police officers that the defendant was in fact armed.” Indeed, the officers’ conduct leading up to the search of the bag confirms the absence of exigency. The police did not seize the bag from defendant upon his arrest but permitted him to keep the bag between his legs while he was frisked. The police officers’ interest in the bag focused solely on the possibility that it contained marihuana. A search was undertaken only after the dog’s conduct had corroborated the information that the bag contained marihuana.

Furthermore, the police have not asserted nor, on the facts of this case, could they reasonably rely on a belief that the search was justified by the need to preserve evidence located in the bag. Again, the presence of any exigency is belied by the police officers’ failure to seize the bag immediately upon encountering defendant. By the time the search was undertaken, defendant’s hands were handcuffed behind his back and he was surrounded by five police officers and their dog. Therefore, because the police concededly did not fear for their safety, and because they could not have reasonably believed that the search of the bag was necessary to preserve any evidence that might have been located in it, the warrantless search of the bag was invalid.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed.

Judges Jasen, Jones, Wachtler, Meyer and Kaye concur; Judge Simons taking no part.

Order reversed, etc.