text:
    The People of the State of New York, Respondent, v Joseph E. Basilicato, Appellant. The People of the State of New York, Respondent, v Joseph Carucci, Appellant. The People of the State of New York, Respondent, v Anthony F. Pontore, Appellant.
    Argued November 12, 1984;
    decided December 20, 1984

      POINTS OF COUNSEL

      Michael T. Wallender and James F. Downs for appellant in the first above-entitled action.
    I. The interception of “background” conversations was unauthorized. (Berger v New York, 388 US 41; Katz v United States, 389 US 347; United States v King, 335 F Supp 523, 478 F2d 494, 417 US 920; People v Floyd, 41 NY2d 245; People v Gnozzo, 31 NY2d 134; People v Frank, 85 AD2d 109; People v Di Stefano, 38 NY2d 640; People v Spinelli, 35 NY2d 77; Coolidge v New Hampshire, 403 US 443; Stanley v Georgia, 394 US 557.) II. The six-day delay in sealing the tapes of intercepted communications violated CPL 700.50 (subd 2) and mandates their suppression. (People v Nicoletti, 34 NY2d 249; People v Edelstein, 54 NY2d 306; People v Washington, 46 NY2d 116; People v Pecoraro, 58 AD2d 462; People v Guenther, 81 Misc 2d 258; People v Weiss, 63 AD2d 662, 48 NY2d 988; People v Sher, 38 NY2d 600.) III. The prosecution’s noncompliance with CPL 700.70 mandates suppression. (People v Sher, 38 NY2d 600; People v Briggs, 38 NY2d 319; People v Mark, 68 AD2d 315.) IV. The application for a wiretap warrant did not comply with the requirements of CPL article 700. (People v Sher, 38 NY2d 600; People v Gnozzo, 31 NY2d 134; People v Washington, 46 NY2d 116; United States v Giordano, 416 US 505; United States v Lilia, 699 F2d 99; People v Brenes, 52 AD2d 78, 42 NY2d 41.) V. Defendant’s constitutional right to a speedy trial was violated. (People v Taranovich, 37 NY2d 442; People v Watts, 57 NY2d 299; People v Savage, 54 NY2d 697; People v White, 32 NY2d 393; People v Rodriguez, 50 NY2d 553; People v Adams, 38 NY2d 605; People v Blakley, 34 NY2d 311; People v Ranellucci, 53 AD2d 384, 43 NY2d 943; People v Watts, 78 AD2d 1008.)

      Sol Greenberg, District Attorney (John P. M. Wappett of counsel), for respondent in the first above-entitled action.
    I. The hearing court properly refused to suppress tape recordings of “background” conversations. (Katz v United States, 389 US 347; Coolidge v New Hampshire, 403 US 443; Harris v United States, 390 US 234; People v Brosnan, 32 NY2d 254; Stanley v Georgia, 394 US 557; People v Jackson, 41 NY2d 146; People v Spinelli, 35 NY2d 77; People v Gnozzo, 31 NY2d 134; People v Di Stefano, 38 NY2d 640; United States v Feldman, 606 F2d 673.) II. The trial court properly held that the People satisfactorily explained the delay in sealing the eavesdropping tapes. (People v Edelstein, 54 NY2d 306; People v Guenther, 81 Misc 2d 258; People v Pecoraro, 58 AD2d 462; People v Glasser, 58 AD2d 448; People v Carter, 81 Misc 2d 345; United States v Hinton, 543 F2d 1002; United States v Lilia, 534 F Supp 1247; United States v Poeta, 455 F2d 117; United States v Aloi, 449 F Supp 698.) III. The People have complied adequately with the requirements of CPL 700.70. (United States v Cafero, 473 F2d 489; People v Sher, 38 NY2d 600; People v Zendano, 62 AD2d 537; People v Fortmuller, 59 AD2d 947; United States v Lilia, 534 F Supp 1247; People v Washington, 46 NY2d 116; People v Briggs, 38 NY2d 319; People v Young, 55 NY2d 419; People v Jones, 69 AD2d 912.) IV. Judge Harris properly determined that the proposed eavesdropping warrant fulfilled the requisites of CPL 700.15. (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; United States v Fury, 554 F2d 522; People v Hanlon, 36 NY2d 549; People v Elwell, 50 NY2d 231; People v Wirchansky, 41 NY2d 130; People v West, 44 NY2d 656; United States v Clements, 588 F2d 1030.) V. Defendant waived any rights to a dismissal of the indictment under CPL 30.20 and, in any event, defendant’s right to a speedy trial was not violated. (People v Rodriguez, 50 NY2d 553; People v Savage, 54 NY2d 697; People v Raco, 72 AD2d 857.)

      Carol Ann Venezia for appellant in the second above-entitled action.
    I. There was insufficient probable cause to support issuance of the eavesdropping warrant. (People v Washington, 46 NY2d 116.) II. The “background” conversations intercepted should have been suppressed. (People v Frank, 85 AD2d 109; United States v King, 335 F Supp 523,478 F2d 494,417 US 920.) HI. The People’s failure to comply with the sealing requirements of CPL 700.50 mandates suppression of recorded conversations. (People v Washington, 46 NY2d 116; People v Nicoletti, 34 NY2d 249; People v Edelstein, 54 NY2d 306; People v De Martino, 71 AD2d 477.) IV. The People’s failure to comply with CPL 700.70 mandates suppression of recorded conversations. (People v Briggs, 38 NY2d 319.)

      Sol Greenberg, District Attorney (John P. M. Wappett of counsel), for respondent in the second above-entitled action.
    I. Judge Harris properly determined that the proposed eavesdropping warrant fulfilled the requisites of CPL 700.15. (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; United States v Fury, 554 F2d 522; People v Hanlon, 36 NY2d 549; People v Elwell, 50 NY2d 231; People v Wirchansky, 41 NY2d 130; People v West, 44 NY2d 656; United States v Clements, 588 F2d 1030.) II. The hearing court properly refused to suppress tape recordings of “background” conversations. (Katz v United States, 389 US 347; Coolidge v New Hampshire, 403 US 443; Harris v United States, 390 US 234; People v Brosnan, 32 NY2d 254; Stanley v Georgia, 394 US 557; People v Jackson, 41 NY2d 146; People v Spinelli, 35 NY2d 77; People v Di Stefano, 38 NY2d 640; People v Gnozzo, 31 NY2d 134; United States v Feldman, 606 F2d 673; Zalmanowski v United States, 445 US 961.) III. The trial court properly held that the People satisfactorily explained the delay in sealing the eavesdropping tapes. (People v Edelstein, 54 NY2d 306; People v Guenther, 81 Misc 2d 258; People v Pecoraro, 58 AD2d 462; People v Glasser, 58 AD2d 448; People v Carter, 81 Misc 2d 345; United States v Hinton, 543 F2d 1002; United States v Lilia, 534 F Supp 1247; United States v Poeta, 455 F2d 117; United States v Aloi, 449 F Supp 698.) IV. The People have complied adequately with the requirements of CPL 700.70. (United States v Cafero, 473 F2d 489,417 US 918; People v Sher, 38 NY2d 600; People v Zendano, 62 AD2d 537; People v Losinno, 38 NY2d 316; People v Fortmuller, 59 AD2d 947; United States v Lilia, 534 F Supp 1247; People v Washington, 46 NY2d 116; People v Briggs, 38 NY2d 319; Stone v Powell, 428 US 465.)

      Bertrand F. Gould for appellant in the third above-entitled action.
    I. The eavesdropping warrant issued by Albany County Court Judge Joseph Harris on May 19, 1981 did not meet the requisites specified in CPL article 700. (People v Sher, 38 NY2d 600; People v Gnozzo, 31 NY2d 134; People v Washington, 46 NY2d 116; People v Brenes, 52 AD2d 78, 42 NY2d 41.) II. The six-day delay in sealing tapes recorded pursuant to the eavesdropping warrant violated CPL 700.50 (subd 2) and mandates suppression of all conversations so recorded. (People v Nicoletti, 34 NY2d 249; People v Edelstein, 54 NY2d 306; People v Washington, 46 NY2d 116; People v Pecoraro, 58 AD2d 462; People v Guenther, 81 Misc 2d 258; People v Weiss, 63 AD2d 662,48 NY2d 988; People v Sher, 38 NY2d 600.) III. Communications intercepted and recorded which were not authorized by the eavesdropping warrant must be suppressed. (United States v King, 335 F Supp 523, 478 F2d 494, 417 US 920; People v Floyd, 41 NY2d 245; People v Gnozzo, 31 NY2d 134; People v Di Stefano,
      38 NY2d 640; People v Spinelli, 35 NY2d 77; People v Frank, 85 AD2d 109.) IV. The prosecution’s noncompliance with CPL 700.70 mandates suppression of all intercepted communications and evidence derived therefrom. (People v Briggs, 38 NY2d 319; People v Mark, 68 AD2d 315.) V. The sentence imposed upon defendant was unnecessarily harsh and excessive. (People v McNair, 46 AD2d 476; People v Bullock, 80 Misc 2d 73; United States v Kayler, 491 F2d 1133; United States v Schipani, 315 F Supp 253, 435 F2d 26, 401 US 983; People ex rel. Carter v Warden, 62 Misc 2d 191; Williams v New York, 337 US 241; People v Richard, 65 AD2d 595; People v Cerio, 34 AD2d 1095; People v Farrar, 52 NY2d 302; People v Zuckerman, 75 AD2d 905.)

      Sol Greenberg, District Attorney (John P. M. Wappett of counsel), for respondent in the third above-entitled action.
    I. Judge Harris properly determined that the proposed eavesdropping warrant fulfilled the requisites of CPL 700.15. (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; United States v Fury, 554 F2d 522; People v Hanlon, 36 NY2d 549; People v Elwell, 50 NY2d 231; People v Wirchansky, 41 NY2d 130; People v West, 44 NY2d 656; United States v Clements, 588 F2d 1030.) II. The trial court properly held that the People satisfactorily explained the delay in sealing the eavesdropping tapes. (People v Edelstein, 54 NY2d 306; People v Guenther, 81 Misc 2d 258; People v Pecoraro, 58 AD2d 462; People v Blanda, 80 Misc 2d 79; People v Glasser, 58 AD2d 448; People v Carter, 81 Misc 2d 345; United States v Hinton, 543 F2d 1002; United States v Lilia, 534 F Supp 1247; United States v Poeta, 455 F2d 117, 406 US 948.) III. 'Hie hearing court properly refused to suppress tape recordings of “background” conversations. (Katz v United States, 389 US 347; Coolidge v New Hampshire, 403 US 443; Harris v United States, 390 US 234; People v Brosnan, 32 NY2d 254; Stanley v Georgia, 394 US 557; People v Jackson, 41 NY2d 146; People v Spinelli, 35 NY2d 77; People v Di Stefano, 38 NY2d 640; People v Gnozzo, 31 NY2d 134.) IV. Defendant did not object to the delay in receiving a copy of the eavesdropping warrant and supporting affidavits, and, therefore waived any right to review by this court. (People v Tutt, 38 NY2d 1011; Felhaber Corp. v State of New York, 65 AD2d 119.) V. Defendant’s sentence was neither unduly harsh nor excessive. (People v Miller, 74 AD2d 961, 50 NY2d 1003; People v Jordan, 59 AD2d 626.)
   OPINION OF THE COURT

Meyer, J.

A warrant authorizing the tapping of a telephone line permits the monitoring of conversations carried on over the telephone but not the monitoring of conversations carried on within the home in which the telephone is located which become audible to the monitoring officers when the telephone receiver is taken off the hook, not for the purpose of engaging in a telephone conversation but to avoid interruption by incoming calls. Nor does the wiretap warrant justify the bugging of such conversations on a “plain view” rationale, absent amendment of the warrant or obtention of a new warrant authorizing such bugging, it being clear to the monitoring officers from the nature of the system, before they hear any conversation, that a telephone communication is not in progress. Moreover, the statutory requirement that tapes be sealed under the direction of the Judge issuing the warrant “[immediately upon the expiration of the period” of the warrant (CPL 700.50, subd 2) is not satisfied when there is no explanation at all for one of the six days that elapsed between expiration of the warrant and sealing, and the People made no effort to contact the Judge on the two weekend days included in that period. Finally, the period of 15 days after arraignment within which the People are required by CPL 700.70 to furnish to defendant a copy of the warrant and accompanying application, failing which the contents of the intercepted communication or evidence derived therefrom may not be received in evidence, may be extended by the trial court only upon good cause shown.

Because the conversations sought to be introduced were outside the scope of the warrant and the statutory requirements referred to were not met, the orders of the Appellate Division affirming the conviction of each of the defendants should be reversed, the motion to suppress granted and the indictment dismissed.

I

On May 19, 1981, an eavesdropping warrant was issued by a Judge of the County Court of Albany County, authorizing the tapping of a specified telephone line running into the residence of defendant Anthony Pontore in the Town of Colonie. The supporting affidavits alleged that on May 7, 1981 and May 12, 1981, a Colonie detective had dialed the number and then listened while a confidential informant placed bets on professional basketball games with defendant Joseph Carucci, and that a second detective maintaining surveillance outside the Pontore residence had observed defendant Carucci enter the Pontore house on both occasions, on one of which he was accompanied by defendant Joseph Basilicato. .One of the affidavits also detailed the unsuccessful efforts made to secure evidence concerning Carucci’s gambling activities by surveillance, by contacting informants and by other investigative procedures.

The warrant issued authorized tapping the line during the period May 25, 1981 to June 23, 1981, and, as required by CPL 700.30, directed minimization by terminating the process when it became apparent that a particular conversation was unrelated to gambling activities. As installed pursuant to the warrant, the tap allowed conversations over the specified number to be picked up on a receiver at Colonie Police Headquarters. The equipment used included a speaker on which the intercepted conversation could be monitored and an automatic recording system on which the conversation was taped. The equipment was activated whenever the telephone receiver in Pontore’s residence was taken off the hook and provided a digital display of any number dialed when an outgoing call was made.

On two occasions the equipment was activated by removal of the receiver from the hook, apparently to avoid interruption by incoming calls, for no outgoing call was made nor was any incoming call received. That no telephone conversation was in progress on these two occasions was apparent to the monitoring detectives from the absence of any digital display of a number dialed, from a recorded telephone company message stating that the receiver was off the hook, followed by a sustained beeping tone and finally by a clear line which allowed them to overhear and record a face-to-face conversation among the three codefendants. On neither occasion did the detectives terminate their monitoring and recording of the conversation, nor after the first occasion was a new warrant or an amendment of the existing warrant sought to permit bugging as well as wiretapping.

Based on the incriminating material thus recorded, the three defendants were indicted for promoting gambling in the first degree, promoting gambling in the second degree and for conspiracy in the fifth degree. All three moved to suppress the evidence derived from the wiretap on the grounds that probable cause had not been established and that minimization requirements had not been complied with. Defendants Basilicato and Carucci also sought suppression on the ground that the prosecutor had not provided them with a copy of the warrant and the application on which it was based within 15 days of arraignment as required by CPL 700.70. The prosecutor’s response to the last claim was to serve defendants 23 days after arraignment with the required papers and file an affidavit which asserted that defendants had not been prejudiced by the delay, but which offered no explanation for it.

During the ensuing hearing an additional issue was raised regarding the sealing requirement of CPL 700.50 (subd 2). The warrant expired on June 23, 1981. Detective Milham testified that it took two days to complete the required paperwork (a two-page sealing order, a two-page affidavit and a document described as a “compliance order” to be affixed to the box in which the tapes were to be stored), and that on June 25 he took the tapes to the District Attorney’s office where he and the District Attorney sealed each separate container with a metal seal. The District Attorney, however, testified that Milham brought him the tapes on Friday, June 26, and the discrepancy was never explained. He agreed that he and Milham had placed each separate tape in a box which was fastened with a metal seal, a task which was completed during the early part of Friday afternoon. He testified that he then attempted to contact the Judge who had issued the warrant to obtain his approval of the sealing, calling the Judge’s chambers several times. Each time he was told by the Judge’s secretary that the Judge was on the Bench, but, although the courtroom and the District Attorney’s offices are in the same building, he made no attempt to send a note up to the Judge nor did he ask to speak with him during a trial recess. Eventually he left for an unspecified appointment, without arranging to see the Judge at the end of the day or delegating the task to an assistant. No further efforts were made over the weekend, and thus the sealing of the tapes was not judicially approved until the morning of Monday, June 29, six days after the warrant had expired.

The hearing Judge found no violation of the sealing requirement. Holding that the two-day delay until June 25 was justified “by the extensive paperwork required to be done to obtain a sealing order”, he also ruled that the District Attorney had been unable to contact the issuing Judge, “despite diligent efforts,” until June 29. No mention was made of the discrepancy regarding when the District Attorney received the tapes from Detective Milham. He also ruled that probable cause for issuance of the warrant had been shown and that because Basilicato and Carucci had not been prejudiced by the minor delay beyond 15 days in providing them with copies of the warrant and accompanying application, there was no defect in that regard. Finally, after noting that defendants had limited their lack of minimization claim to the argument that the two nontelephonic background conversations should not have been recorded, the court decided that a “logical corollary to the ‘plain view’ doctrine” required denial of the suppression motion in that respect.

Thereafter, each defendant pleaded guilty to two counts of promoting gambling in the first degree and one count of conspiracy in the fifth degree, and after sentencing, appealed to the Appellate Division. That court, on essentially the same reasoning as that of the hearing Judge, affirmed in each case. Defendants appeal by leave of a Judge of this court. We conclude that suppression is required because (1) an eavesdropping warrant which authorizes interception of telephonic communication does not permit interception of a nontelephonic face-to-face conversation heard over the telephone wire when the receiver was left off the hook, (2) the sealing requirements of the statute were not met, and (3) the People failed to show any cause for their delay in serving on defendants a copy of the warrant and accompanying papers.

II

The eavesdropping warrant in this case authorized the District Attorney “to obtain by the wiretapping of the said telephone lines” conversations pertaining to specified crimes. All that it permitted, therefore, was “the intentional overhearing or recording of a telephonic * * * communication” (Penal Law, § 250.00, subd 1, made applicable to CPL art 700 by CPL 700.05, subd 1; see, also, CPL 700.05, subd 3). The interception of face-to-face conversation, which is separately defined by subdivision 2 of section 250.00 of the Penal Law as “[m]echanical overhearing of a conversation” (more commonly referred to as “bugging”), was not authorized.

The specification in a warrant that it is limited to wiretapping, like the specification of the type of criminal conduct being investigated, is designed to implement the constitutional requirement that warrants contain provisions “particularly describing the place to be searched, and the persons or things to be seized” (US Const, 4th amdt; NY Const, art I, § 12; see CPL 700.30, sufods 2, 3, 4; Berger v New York, 388 US 41, 55-56; People v Floyd, 41 NY2d 245, 249). That requirement “prevents the seizure of one thing under a warrant describing another” (Marron v United States, 275 US 192,196; accord Berger v New York, 388 US 41, 58, supra; People v Baker, 23 NY2d 307, 319-322). Accordingly, the "seizure” of nontelephonic conversations pursuant to a warrant that authorizes only wiretapping clearly goes beyond the scope of the warrant and requires suppression of the resulting evidence (People v Frank, 85 AD2d 109, 112-113).

Nor can admissibility of the evidence be sustained by analogy to the “plain view” exception to the warrant requirement. The “plain view” doctrine permits seizure of an item not specifically referred to in the search warrant if the officer was lawfully in a position to observe the item, observation was inadvertent rather than anticipated, and the incriminating character of the items was immediately apparent (Coolidge v New Hampshire, 403 US 443, 465-471; People v Spinelli, 35 NY2d 77,80-81). For several reasons the “plain view” doctrine is inapplicable to this case. There is no “prior justification for [the] intrusion,” no “legitimate reason for being present”, when an unauthorized means of eavesdropping is employed (Coolidge v New Hampshire, 403 US, at p 466, supra). The detectives were required to terminate the interception when it became apparent that what was being heard was not a tapped telephone conversation but a face-to-face conversation bugged by defendants’ act of leaving the receiver off the hook. And while there was inadvertence on the part of defendants in converting the tap to a bug by leaving the receiver off the hook, the monitoring that followed was not inadvertently overheard by the detectives. The evidence is clear that well before any incriminating statements were overheard, the detectives were aware from the absence of a digital display, from the recorded telephone company message and from the beeping tone that no telephone conversation was in progress. At that point the detectives knew that the authorized wiretap had become an unauthorized bugging device and were obligated to terminate surveillance of the conversation, or at the very least to seek further authorization from the court. That their equipment was capable of bugging and that defendants unwittingly made bugging possible by removing the receiver from the hook did not authorize interception by bugging under a warrant authorizing only the wiretapping of telephone conversations. The nontelephonic conversations and any evidence derived from them should, therefore, have been suppressed.

Ill

An additional reason for suppression of not only the face-to-face, but also of the telephonic conversations as well is the People’s failure to comply with the sealing requirement of CPL 700.50 (subd 2). That subdivision mandates that, “Immediately upon the expiration of the period of an eavesdropping warrant, the recordings of communications * * * must be made available to the issuing justice and sealed under his directions.” The requirement is designed “to prevent tampering, alterations or editing; to aid in establishing the chain of custody; and to protect the confidentiality of the tapes” (People v Nicoletti, 34 NY2d 249, 253). We have, therefore, repeatedly held that the statute must be strictly construed (id.; People v Washington, 46 NY2d 116, 122; People v Sher, 38 NY2d 600,603), and that while “sealing of tapes on the day following the termination date of a wiretap warrant is generally sufficient” (People v Edelstein, 54 NY2d 306, 310), even brief additional delays must be explained (id), and unjustified delays of only a few days will warrant suppression (see People v Weiss, 48 NY2d 988; People v Washington, 46 NY2d 116, 125, supra).

It is, moreover, not the defendant’s burden to show that the tapes have been tampered with. Rather, because the potential for such abuse is the governing factor, it is the People’s burden to offer a satisfactory explanation for any delay (People v Edelstein, 54 NY2d 306, 309, supra; People v Nicoletti, 34 NY2d 249, 253, supra). They seek to explain the six-day delay in sealing by the need to prepare the paperwork and by their inability to contact the issuing Judge.

With respect to the paperwork, we noted in People v Edelstein (supra), that generally no more than one day should be required. But even if we allow the two days to which Detective Milham testified, there remains the unexplained gap of June 25 to 26 in the handling of the tapes. There is an affirmed finding that Milham turned the tapes over to the District Attorney on Thursday, June 25, yet the District Attorney testified that he first received them during the afternoon of Friday, June 26. In light of the purpose behind the sealing requirement, the unexplained gap of a whole day in the custody of the tapes is a sufficient basis for suppression.

An additional reason for doing so exists in the failure to contact the issuing Judge until the following Monday, for there is simply no explanation for the failure to attempt to contact the Judge over the weekend. True, in People v Edelstein (54 NY2d 306, 309-310, supra) we upheld a Saturday to Monday delay when there was evidence establishing that the issuing Judge was unavailable on the intervening Sunday. But the immediate sealing requirement of the statute makes no exception for weekends, and in People v Washington (46 NY2d 116,125, supra) we relied upon cases which had refused to excuse unexplained delays and which reasoned that, “ ‘Law enforcement does not cease on weekends nor holidays’ ” (People v Pecoraro, 58 AD2d 462, 470; People v Guenther, 81 Misc 2d 258, 259). There was, therefore, a failure to justify the delay in sealing, making inadmissible the contents of the intercepted communications, as well as evidence derived therefrom (People v Sher, 38 NY2d 600, 605, supra; CPLR 700.65, subd 3).

IV

Suppression is also required as to defendants Basilicato and Carucci because of the prosecutor’s failure to serve them with copies of the warrant and the application on which it was based within 15 days of arraignment as required by CPL 700.70.

The courts below held the delay excusable because defendants were served before the suppression hearing and, therefore, were not prejudiced. The statute, however, required a showing of both lack of prejudice and good cause for the delay. What constituted “good cause” need not be decided, for the People have offered no excuse whatsoever for the delay (cf. People v Greer, 42 NY2d 170,178-179; People v Briggs, 38 NY2d 319, 324), and the Trial Judge, therefore, had no authority to extend the 15-day period (People v Mark, 68 AD2d 315, 317-318).

The People argue, nevertheless, that by analogy to CPL 710.30, Basilicato and Carucci, having moved for suppression, should be held to have waived timely notice. CPL 710.30, which concerns notice within 15 days of arraignment of statement or identification evidence that the People intend to offer at trial, provides in its subdivision 3 that even though the required notice not be given the evidence will be admissible if defendant moves to suppress and the motion is denied. The flaw in the argument is, of course, that CPL 700.70 contains no similar provision. It may well be, as the People argue, that the notice requirements of CPL 700.70 and CPL 710.30 serve the same purpose of alerting criminal defendants to the existence of evidence that could be introduced against them at trial so that a timely decision may be made about whether to file a motion t o suppress such evidence (see CPL 255.20, subd 1; Bellacosa, Supplementary Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 700.70, 1983-1984 Pocket Part, p 201). That does not, however, warrant altering the plain language of CPL 700.70 by reading into the statute an exception not provided by the Legislature (People v Graham, 55 NY2d 144). Furthermore, it would make no sense to hold a violation of the section waived by the making of a motion to suppress, for such a motion can be based not only on constitutional violations but also on any ground “precluding admissibility thereof in a criminal action” (CPL 710.20, subd 2). Thus, a violation of CPL 700.70, itself a ground for suppression, would be held waived by the very act of moving to suppress. The motion by Basilicato and Carucci should have been granted on this ground as well.

V

Because the record establishes that all counts of the indictment are based on eavesdropping evidence alone and that evidence must be suppressed as to all three defendants, the indictment should be dismissed (see People v Grant, 45 NY2d 366, 377). It is not necessary, therefore, to discuss the other issues raised by defendants.

Accordingly, the orders of the Appellate Division should be reversed, the motions to suppress granted, and the indictment dismissed as to all three defendants.

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

In each case: Order reversed, etc.

      . A similar distinction is drawn in the applicable Federal statutes between the interception of “wire communications” and “oral communications” (18 USC § 2510, subds [1], [2]).

      . One application of “plain view” has, indeed, been codified in GPL 700.65 (subd 4), which permits retroactive amendment of an eavesdropping warrant as the basis for admission at trial of an intercepted communication “which constitutes evidence of any crime” but “which was not otherwise sought” under the terms of the original warrant. The subdivision is generally construed to permit amendment as to an interception over an authorized medium of a conversation about a different crime than that named in the warrant application (People v Di Stefano, 38 NY2d 640, 651; People v Gnozzo, 31 NY2d 134, 143-144), but Gnozzo suggests (“and perhaps on other circumstances,” 31 NY2d, at p 143) that it may not be limited to the different crime situation. We need not now decide whether it can be applied to the interception of a conversation — even one about the same crime — by means of an unauthorized medium, i.e., by bugging instead of wiretapping, for here no request was made for amendment pursuant to GPL 700.65 (subd 4), nor was a new warrant authorizing bugging as distinct from wiretapping sought.

      . Defendant Pontore raises the same issue before us but failed to preserve it by appropriate motion before the trial court.

      . That section provides: “The contents of any intercepted communication, or evidence derived therefrom, may not be received in evidence or otherwise disclosed upon a trial of a defendant unless the people, within fifteen days after arraignment and before the commencement of the trial, furnish the defendant with a copy of the eavesdropping warrant, and accompanying application, under which interception was authorized or approved. This fifteen day period may be extended by the trial court upon good cause shown if it finds that the defendant will not be prejudiced by the delay in receiving such papers.”


source: Caselaw Access Project

author: Kaye, J. Meyer, J.

license: Public Domain

text:
    Frank Torres, Appellant, v Little Flower Children’s Services et al., Respondents.
    Argued November 14, 1984;
    decided December 27, 1984

      POINTS OF COUNSEL

      Marcia Robinson Lowry and Lauren Anderson for appellant.
    I. The court below erred in dismissing plaintiff-appellant’s claims as being barred by the education malpractice theory. (Hoffman v Board of Educ., 49 NY2d 121; Donohue v Copiague Union Free School Dist., 47 NY2d 440.) II. The court below erred in granting summary judgment on plaintiff-appellant’s negligence claims. (Bartels v County of Westchester, 76 AD2d 517; Andrews v County of Otsego, 112 Misc 2d 37; Matter of Female S., 111 Misc 2d 313; Finlay v Finlay, 240 NY 429; Matter of Smith v Lascaris, 106 Misc 2d 1044; Matter of Domes v Board of Supervisors, 230 App Div 276; Matter of Anonymous, 39 Misc 2d 740; Wilder v

      Sugarman, 385 F Supp 1013; Matter of Crowley v Bressler, 181 Misc 59.) III. The court below erred in determining that Little Flower and the city defendants had not breached the duties they expressly contracted to perform for the benefit of plaintiff. (Snyder Plumbing & Heating Corp. v Purcell, 9 AD2d 505; Bernal v Pinkerton’s, Inc., 52 AD2d 760; Lawrence v Fox, 20 NY 268; Seaver v Ransom, 224 NY 233; Pond v New Rochelle Water Co., 183 NY 330; Sullivan v Staten Is. Elec. R.R. Co., 50 App Div 558; Lait v Leon, 40 Misc 2d 60; Vandewater & Lapp v Sacks Bldrs., 20 Misc 2d 677; Town of Ogden v Howarth & Sons, 58 Misc 2d 213.) IV. The court below erred in not finding that defendants-respondents’ failure to provide plaintiff-appellant with his State-created entitlement to education violated his due process rights. (Wolff v McDonnell, 418 US 539; Goss v Lopez, 419 US 565; Goldberg v Kelly, 397 US 254; Morrissey v Brewer, 408 US 471; Board of Regents v Roth, 408 US 564; Matter of Claire, 44 AD2d 407, 35 NY2d 706; Matter of Stella, 82 Misc 2d 2; Matter of Kirschner, 74 Misc 2d 30; Matter of David H., 72 Misc 2d 59; Brown v Board of Educ., 347 US 483.)

      Martin F. Hayes and J. Russell Clune for Little Flower Children’s Services and another, respondents.
    I. Little Flower Children’s Services and Ralph Chillion had no statutory or contractual duty to teach plaintiff to read and write. II. Little Flower Children’s Services and Ralph Chillion breached no common-law duty to plaintiff which would give rise to an action in negligence. (Donohue v Copiague Union Free School Dist., 47 NY2d 440; Hoffman v Board of Educ., 49 NY2d 121; Bartels v County of Westchester, 76 AD2d 517; Doe v New York City Dept. of Social Servs., 649 F2d 134, 709 F2d 782.) III. Little Flower Children’s Services and Ralph Chillion did not violate plaintiff’s due process rights. (Patton v Dumpson, 425 F Supp 621.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Karen Hutson, Ronald E. Sternberg and Pamela Seider Dolgow of counsel), for the City of New York and others, respondents.
    I. The complaint, which seeks money damages for the alleged failure of defendants to teach plaintiff to read, sounds in “educational malpractice,” and was thus properly dismissed by the courts below, for compelling public policy reasons as expressed by this court in Hoffman v Board of Educ. and Donohue v Copiague Union Free School Dist., which are controlling, a cause of action for educational malpractice is not cognizable in the courts of this State. (Hoffman v Board of Educ., 49 NY2d 121; Donohue v Copiague Union Free School Dist., 47 NY2d 440;
      Loughran v Flanders, 470 F Supp 110; Helm v Professional Children’s School, 103 Misc 2d 1053; Paladino v Adelphi Univ., 39 AD2D 85; Rutkowski v Wasko, 286 App Div 327; Matter of Michael 3., 73 Misc 2d 339; Sinhogar v Parry, 74 AD2d 204, 53 NY2d 424.) II. Plaintiff does not have a claim for breach of contract against the Department of Social Services predicated on his being a third-party beneficiary of the contract between the Department and Little Flower. (Hoffman v Board ofEduc., 49 NY2d 121; Donohue v Copiague Union Free School Dist., 47 NY2d 440; Fata v Healy Co., 289 NY 401; Pond v New Rochelle Water Co., 183 NY 330 ; Matter of Scott v Rockaway Community Coup,, 92 Misc 2d 178; Town of Ogden v HowarA & Sons, 58 Misc 2d 213.) HI. Plaintiff’s cause of action based on deprivation of constitutional rights was properly dismissed. The constitutional duty of the Legislature to provide for the maintenance and support of a system of free common schools, wherein all eMMxem may be educated, does not impose a duty flowing directly from a local school district to individual pupils to ensure that each pupil receives a minimum level of education. (Donohue v Copiague Union Free School Dist., 47 NY2d 440; Patton v Dumpson, 425 F Supp 621.)
   OPINION OF THE COURT

Kaye, J.

In Hoffman v Board of Educ. (49 NY2d 121) and Donohue v Copiague Union Free School Dist. (47 NY2d 440), we dismissed complaints for educational malpractice, holding that as a matter of public policy the courts would not second-guess the professional judgments of public school educators and administrators in selecting programs for particular students. In the appeal before us plaintiff, who never learned to read despite a public school education, seeks damages from his legal custodians for his failure to receive an appropriate education. While he urges that there are material differences from Hoffman and Donohue, we conclude that the same policy considerations bar recovery.

In 1964, when plaintiff, Frank Torres, was seven years old, his mother abandoned him and defendant New York City Department of Social Services (DSS) assumed responsibility for his care. DSS placed him with defendant Little Flower Children’s Services, an authorized child care agency (Social Services Law, §371, subd 10), which assumed a contractual obligation to provide him basic care, including room and board, and “the arrangement, as needed, of religious training, education and vocational training.” At the time, plaintiff was fluent in Spanish but spoke and understood little English. Little Flower enrolled him in a public school operated by the New York City Board of Education on the agency’s premises. Plaintiff admitted that he started to understand English “around the third grade.” While he was capable of doing math work at a normal level, he began doing poorly in reading. According to a report submitted by Little Flower to DSS, plaintiff was determined in a 1967 psychological study to suffer from borderline retardation. In light of his perceived condition, teachers at the public school assigned him a lesser work load but for the most part kept him in the regular classes, allowing him to sit in back of the classroom without participating in the instruction. Plaintiff’s reading problem was regularly discussed at conferences attended by Little Flower staff members as well as the school principal and teachers. Little Flower felt that the public school was equipped to deal with th is type of learning disability and did not attempt to provide supplemental reading instruction, except for a short period after seventh grade when plaintiff attended a special class.

In March 1972, a Little Flower social worker took plaintiff to a reading specialist who administered a series of tests with a view toward establishing an education plan to be initiated after plaintiff’s graduation from eighth grade in June 1972. The reading specialist concluded that plaintiff was not retarded but suffered from an “extremely complex reading disability.” He said, “To outline a remedial approach for Frank would be synonymous with writing a textbook.” However, he did recommend a method which had been described in detail in a designated publication.

Following the testing, plaintiff was tutored through the use of reading machines but he graduated from the eighth grade unable to read. The method recommended by the reading specialist was never implemented. However, Little Flower did arrange for further tutoring upon plaintiff’s graduation from grammar school. After some months, plaintiff stopped attending the tutoring sessions because no transportation was provided and the walk took approximately 45 minutes each way. In October 1972, plaintiff was enrolled in a BOCES school and placed in a class for the educable retarded, but he was expelled, after various difficulties in March 1973. Little Flower discharged plaintiff from its care in 1976.

Alleging that he was functionally illiterate, plaintiff brought this action against DSS, Little Flower, several individuals associated with them, and the Board of Education and school principal (the last two since dropped from the suit). He charged that defendants were negligent and violated the contract between DSS and Little Flower in failing to provide him with an appropriate education, and asserted a cause of action based on 42 USC § 1983 because he was not afforded a hearing with respect to the deprivation of an appropriate education. On defendants’ motions for summary judgment, Special Term dismissed the complaint, characterizing the negligence claim as educational malpractice and finding the contractual duties met by the placement of plaintiff in a public school. The court did not address the constitutional claim. The Appellate Division affirmed, without opinion, and this court granted leave to appeal. We now affirm.

In Donohue v Copiague Union Free School Dist. (47 NY2d 440, supra), plaintiff brought an action against the school district because he was graduated from high school unable to comprehend written English. He alleged that the school failed to evaluate his mental ability or take adequate remedial measures to deal with his learning disability. The court assumed that a tort action for educational malpractice could be stated, but nonetheless held as a matter of public policy that courts should not entertain such claims because to do so “would require the courts not merely to make judgments as to the validity of broad educational policies — a course we have unalteringly eschewed in the past — but, more importantly, to sit in review of the day-to-day implementation of these policies.” (Id., at p 445.) In Hoffman v Board of Educ. (49 NY2d 121, supra), plaintiff was mistakenly diagnosed as retarded by a psychologist whose recommendation for retesting was ignored. As a result, plaintiff, a person of normal intelligence, was educated in a class for children with retarded mental development. The court found the negligence cause of action grounded in educational malpractice and therefore barred by Donohue, stating “the courts of this State may not substitute their judgment, or the judgment of a jury, for the professional judgment of educators and government officials actually engaged in the complex and often delicate process of educating the many thousands of children in our schools” (id., at pp 125-126). As we noted, “the court system is not the proper forum to test the validity of the educational decision to place a particular student in one of the many educational programs offered by the schools of this State” (id., at p 127).

Plaintiff advances several arguments in an effort to distinguish Hoffman and Donohue. First, he asserts that those decisions prevented only suits against educators whereas here the charges are asserted against those responsible for his upbringing. Second, drawing an analogy to Klostermann v Cuomo (61 NY2d 525), he argues that he is not asking the court to evaluate different educational approaches but rather to enforce duties imposed on defendants principally by statute and common law. Those arising from statute — the Social Services Law and the Education Law — in general (1) require DSS to care for abandoned children and supervise child care agencies, which in turn must arrange for appropriate education, and (2) allow DSS or the agency to obtain administrative review of decisions made by the school regarding a variety of programs available to needy children. The common-law duties, it is argued, stem from DSS’s parens patriae function and from Little Flower’s responsibility for plaintiff’s daily care. A third distinction offered is that defendants breached their contract, which obligated Little Flower to provide education “as needed,” to comply with the Social Services Law, and to submit to DSS a detailed service plan concerning plaintiff’s care. The contract also required DSS to supervise plaintiff’s treatment. Finally, plaintiff asserts a deprivation of due process of law.

We cannot accept plaintiff’s initial argument that even if an action grounded in educational malpractice may be barred by public policy considerations when brought against the school, a different result should obtain when this same claim is lodged against the child’s legal custodians. What is at the root of the policy enunciated in Hoffman and Donohue is not the identity of the defendant but the nature of the determinations courts would be called upon to make. This policy is equally applicable whether the student challenges educational decisions made by the Board of Education or by his guardians in response to actions taken by school officials, for in either situation the court would be thrust into the position of reviewing the wisdom of educators’ choices and evaluations. Here, for example, plaintiff’s allegations would require the courts to assess the nature of his difficulty in learning, including such elusive factors as his own attitude, motivation, temperament, past experience and home environment (see Donohue v Copiague Union Free School Dist., 47 NY2d 440, 446 [Wachtler, J., concurring], supra), to examine Board of Education policies and their implementation by school officials — the very role we have already declined to assume — and then in addition to determine whether the guardians’ responses to these policies and decisions constituted negligence. While we have noted the right of students and parents to question choices made by educators (id., at p 445; Hoffman v Board of Educ., 49 NY2d 121,127, supra), we did not imply that the exercise of such a right would give rise to damage suits for negligence.

Plaintiff’s reliance on Klostermann v Cuomo (61 NY2d 525, supra) is misplaced. There, we held that courts would entertain mandamus proceedings and declaratory judgment actions brought to compel administrative agencies to carry out clearly defined, ministerial acts mandated by the Legislature — furnishing written service plans — even where in determining how to act — i.e., the content of those plans — agencies may have unreviewable discretion. Plaintiff points to no clearly defined, ministerial act mandated by the Legislature which defendants failed to perform. The statutes here require DSS and Little Flower to provide for a suitable or appropriate education and allow them to challenge the school’s decisions regarding the programs in which the student is enrolled. Contrary to plaintiff’s claim, defendants did act pursuant to their duty to provide for plaintiff’s education by placing him in a public school maintained by the Board of Education. What is challenged by plaintiff, but not subject to review, is the agency discretion in the manner in which the statutory duty was fulfilled.

Nor are more specific duties imposed by the government’s parens patriae function to safeguard the best interests of children placed in its care, or Little Flower’s responsibility to exercise reasonable care for their protection. Social service agencies or foster parents have been found liable in instances where abandoned children placed in foster care have been physically injured due to abuse or neglect (see, e.g., Bartels v County of Westchester, 76 AD2d 517; Andrews v County of Otsego, 112 Misc 2d 37), but liability has not been extended to judgments concerning a child’s education. On this question, defendants urge that the only duty of those in a parental relation is to cause the child to “attend upon instruction” (Education Law, § 3212, subd 2, par b). We need not define the responsibility of a legal custodian with respect to a child’s education, however, for we assume, as we did in Donohue, that under traditional tort law concepts defendants could be held answerable for their failure to assure plaintiff an appropriate education. Even accepting plaintiff’s argument that defendants have such a responsibility, still his claim must fail because of the public policy against educational malpractice claims. Whatever the precise statutory and common-law duties of a child’s governmental guardians may be, they do not support an action stemming from the alleged malpractice of public school educators and administrators because such an action is not cognizable in our courts.

For the same reason, plaintiff’s cause of action based on contract must also fail; enforcement of the contract as requested would require the court to decide which educational programs might have been preferable. That the source of such a duty was imposed by contract, rather than common law or statute, could not overcome the policy objections to the courts’ involvement in these matters (Paladino v Adelphi Univ., 89 AD2d 85). A different question would be posed if the contract required specified services, for instance, a designated number of hours of instruction (id., at p 92).

Finally, plaintiff cannot succeed on his constitutional claim that he was deprived of his State-created entitlement to an “appropriate” education without a hearing. Plaintiff does not complain that he was deprived of any particular program he was then enjoying (see Board of Regents v Roth, 408 US 564; compare Goss v Lopez, 419 US 565). Further, the “entitlement” at issue cannot be determined through the application of objective criteria. Rather, it depends upon the decisions of professional educators as to the needs of a particular student. Such nebulous entitlements do not lend themselves to protection through the procedural due process requirement. Indeed, they do not even come into existence until the discretionary determination as to what is appropriate is made. Though a due process protection may well apply when the child is not placed in school at all (see Patton v Dumpson, 425 F Supp 621, 625), no such claim may be advanced here. (See, also, Donohue v Copiague Union Free School Dist., 47 NY2d 440, 443, supra.)

Plaintiff acknowledges that recovery is precluded against the Board of Education, the party charged with actually furnishing his public school education and thus primarily at fault if he indeed received a deficient education. For the reasons set forth in Hoffman and Donohue recovery for this same alleged injury cannot be permitted against plaintiff’s legal custodians. The order of the Appellate Division dismissing the complaint should therefore be affirmed.

Meyer, J.

(dissenting). Because I cannot accept the distinctions drawn by the majority between this case and Klostermann v Cuomo (61 NY2d 525) and Snow v State of New York (64 NY2d 745), I respectfully dissent.

Klostermann v Cuomo (61 NY2d, at p 531, supra) held that “if a statutory directive is mandatory, not precatory, it is within the courts’ competence to ascertain whether an administrative agency has satisfied the duty that has been imposed on it by the Legislature” and that plaintiffs in that case had (at p 541) “properly petitioned the courts for a declaration of their rights, whether derived from the Federal or State Constitutions, statutes, or regulations.” Plaintiff Torres seeks damages from the city and its employees, and from Little Flower Children’s Services, the child-care institution with which the city contracted, for failure of the city to satisfy duties imposed upon it by statute and regulations, and for failure of defendant Little Flower to satisfy the duties imposed upon it by statute and regulation as well as by its contract with the municipality. The majority, because the dereliction from duty has resulted in plaintiff’s illiteracy, an educational lack, concludes that the policy against involving courts in the selection of educational programs enunciated in Hoffman v Board of Educ. (49 NY2d 121) and Donohue v Copiague Union Free School Dist. (47 NY2d 440) forecloses plaintiff’s claim.

Educational policy is no more involved in Frank Torres’ illiteracy than it was in Donald Snow’s stunted intellectual growth. In Snow’s case those in charge of his custody breached their duty by failing to ascertain that he was totally deaf; in Torres’, what defendants failed to ascertain, though obliged to do so, was that he had no understanding of, or ability to speak in, any language but Spanish while he was being raised in an almost entirely English speaking environment. In Snow’s case the action has been held maintainable because predicated on medical, rather than educational, malpractice; in like manner Torres’ claim should be held maintainable because based on custodial, rather than educational, breach of duty.

Special Term did not discuss the duties of the city at all and as to Little Flower said only that, “The contract required for the arrangement for education, and plaintiff admits he was placed in a public school. As such defendant did not breach its contractual obligation.” The Appellate Division affirmed, without opinion.

Summary judgment may not be granted if there is a triable issue of fact and in determining whether there is the evidence presented must be viewed in the light most favorable to the party moved against (Siegel, NY Prac, § 281, p 338). On that basis, there is ample proof, when measured against the obligations of the municipal defendants under statute and regulation, and of defendant Little Flower, under statute, regulation and contract of which plaintiff was the third-party beneficiary, to require denial of defendants’ motions.

As we have made clear in Tucker v Toia (43 NY2d 1) and Matter of Lee v Smith (43 NY2d 453), section 1 of article XVII of the State Constitution imposes upon the State an affirmative duty to aid the needy, which clothes the Legislature with discretion to determine the means by which aid is to be provided, but “unequivocally prevents the Legislature from simply refusing to aid those whom it has classified as needy” (Tucker v Toia, 43 NY2d, at p 8, supra). What distinguishes this case from the Hoffman and Donohue cases is that we deal here with whether the agencies chosen to carry out the State’s obligation to a needy foster child have carried out the duties imposed upon them by the Legislature and the governmental agencies acting under its aegis, not with whether the educational institution itself followed its separate, though incidentally related, obligations. And what distinguishes the obligation of defendants in this case from those of natural parents and other persons in parental relation to a child is that, although section 3212 (subd 2, par b) of the Education Law imposes upon both the duty to “cause such individual to attend upon instruction”, the Social Services Law imposes upon defendants obligations not imposed upon natural parents by that or any other statute, or (if, for purposes of argument we accept a broad view of the parental immunity declared in Holodook v Spencer, 36 NY2d 35) by common law. The overly simplistic view of Special Term, apparently accepted by the Appellate Division, that defendants had discharged their full obligation to Frank Torres by causing him to attend the public school maintained by the City Board of Education on Little Flowers’ premises fails to consider the pertinent constitutional, statutory, regulatory and contractual provisions.

Section 398 of the Social Services Law provides that the city’s public welfare officers “shall have powers and perform duties” including with respect to defective children to “[o]btain admission to state or other suitable schools, hospitals, other institutions *** in accordance with the provisions of the mental hygiene law, education law and acts relating to the family court” (subd 4, par [a]) and with respect to all children within their care to “[plrovide for expert mental and physical examination of any child whom he [sic] has reason to suspect of mental or physical defect or disease” (subd 6, par [b]) and to “provide suitable vocational training” (subd 6, par [k]).

Section 395 of the Social Services Law permits the public official charged with those duties to administer them either directly or through an authorized agency, but the institution in which a child is placed must be conducted in accordance with applicable regulations and the placement is to be supervised by the public official (Social Services Law, § 398, subd 6, par [g]). As the supervision requirement indicates, administration through an agency or institution such as Little Flower does not relieve the public official of his or her statutory obligations. Those obligations are nondelegable (Bartels v County of Westchester, 76 AD2d 517, 523) as was indeed recognized in the preamble to section VII and in section X (par A) of the contract between the city and Little Flower.

The regulations adopted pursuant to that authority required not only that children in the care of the institution receive suitable education as required by law (18 NYCRR 5.19 [in effect at times pertinent to this case], now 18 NYCRR 441.13) but also that a plan of service be developed for such child (18 NYCRR 5.22, now 18 NYCRR 441.14 [b]) and that psychiatric and psychological services, including tests and examinations, be made available to children under care of the institution (18 NYCRR 5.20 [b], now 18 NYCRR 441.15). Moreover, as to the plan of service, the State Board’s Commentary to section 5.22 not only required a preliminary plan on intake which was to include “proper placement in school” and “special services needed, e.g., remedial reading, speech therapy”, but also required that the plan of service “be subject to constant evaluation and formally reviewed annually,” and the Commentary to section 5.20 (b) recommended appropriate use of psychological services, including direction of a remedial program.

Little Flower does not dispute that it is an authorized agency governed by the above provision and that its contract with the municipal defendants required it to arrange, “as needed, religious training, education and vocational training.” Its argument that its obligation is limited solely to such arrangement overlooks the facts that (1) the quoted words simply define the “Basic Care” to be provided under the contract, (2) the contract required it to provide foster care services, (3) under section III of the contract it agreed to provide those services “in accordance with the Social Services Law, Rules of the State Board of Social Welfare, the Regulations of the New York State Department of Social Services, the Inter-Agency Manual and the policies and procedures of the Department” and (4) section VII of the contract required that it provide an initial service plan within 60 days of the placement of a child, submit a semiannual review at the end of six months and obtain reauthorization of the placement annually.

As one of the foster care children for whose benefit the contract with Little Flower was made, Frank Torres would be entitled, as a third-party beneficiary, to recover for its breach (see Seaver v Ransom, 224 NY 233). And as Snow v State of New York (supra), makes clear, the negligent failure of defendants, including Little Flower, to carry out the obligations imposed by statute or regulation may give rise to liability (see, also, Doe v New York City Dept. of Social Servs., 649 F2d 134, on second app 709 F2d 782, cert den _ US _, 104 S Ct 195).

Considered in light of the foregoing, the record, without question, presents triable issues of fact. The claim simply is that the defendants were aware of Frank Torres’ language problem but did nothing at all to remedy it. Thus it was known to defendants when he entered Little Flower that he spoke only Spanish, and an entry in his case record made a year later noted that, “Because of a language problem, communication with Frank has been minimal. He does not appear to understand the drift of a question and his answers are confused arid inappropriate.” Yet no steps were taken by defendants to assist him in overcoming his language problem. The Learning Diagnostic Center later noted that Frank’s “early attempts to learn to read and write were therefore surrounded by anxiety and confusion, due to his struggle with English.” Instead, based on tests administered in English, he was placed in classes for the retarded, and this despite the fact that his achievements in mathematics were inconsistent with retardation. Then when finally referred to a reading specialist, who recommended specific steps to remedy plaintiff’s reading problem, nothing was done during the ensuing four years that plaintiff remained in defendant’s custody. And of all this the city defendants received regular reports.

Donald Snow was misdiagnosed as retarded and will recover $1,500,000 because Willowbrook’s care included medical and psychiatric services and its failure can be labeled medical, rather than educational, malpractice. Yet Frank Torres, also misdiagnosed as retarded by those who had charge of his custody and were obligated to obtain for him instruction, including the ability to read and write in English, necessary reasonably to prepare him for later life, receives nothing because the issue is said to involve educational policy. If a label is necessary, defendants’ failures can properly be designated custodial malpractice. But in truth what is here involved, so the trier of fact could find, is a simple failure to carry out obligations imposed by Constitution, statute, regulation and contract, which has resulted in plaintiff’s illiteracy, but is wholly distinct from matters of educational policy.

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

Order affirmed, with costs.

      ., For example, DSS has the duty to care for abandoned children (Social Services Law, § 398, subd 2, par [b]), to provide suitable vocational training in certain circumstances (Social Services Law, § 398, subd 6, par [k]) and to supervise the institution in which the child is placed (Social Services Law, § 398, subd 6, par [g]). The child care agency must arrange for the child to receive a suitable education (18 NYCRR 441.13 [formerly 5.19]). Either organization may seek administrative review of any decision made by school officials (Education Law, § 310), including those with respect to special services available for handicapped children (current version codified at Education Law, § 4402).

      . Contrast Snow v State of New York (64 NY2d 745). In Snow, plaintiff was under three years of age when he was admitted to the Willowbrook State School, an institution where the “patients” received continuous medical and psychological treatment, where plaintiff’s record resembled a hospital or medical record rather than a school report, and where payment for treatment was made under his father’s medical plan. Plaintiff was deaf, but his condition was not diagnosed. Instead, he was given an intelligence test inappropriate for deaf children, resulting in his mistaken institutionalization and consequent injury. The Appellate Division upheld plaintiff’s cause of action as grounded in medical, rather than educational, malpractice. While mistaken evaluations are central to both Snow and Torres, such factors as age of the child upon entry, nature of the institution and kind of care administered mark the difference between medical and educational malpractice claims.

      . The dissent points to the various obligations the law imposes on defen- . dants to determine a child’s special needs (dissenting opn, at pp 131-132). Plaintiff’s underlying contention is not that defendants ignored any specific statutory direction to conduct reviews, for the record indicates that they conferred periodically about plaintiff’s problem, but that they erroneously concluded that the public school was equipped to deal with him.

      . For convenience, hereafter referred to collectively as the city.

      . See Bartels v County of Westchester (76 AD2d 517, 522) and Andrews v County of Otsego (112 Misc 2d 37, 44).

      . How damages for the breach would be calculated need not be considered on this motion for summary judgment (CPLR 3212, subd [b]).


author: Simons, J.

text:
    The People of the State of New York, Respondent, v William Maerling, Appellant.
    Argued November 19, 1984;
    decided December 27, 1984

      POINTS OF COUNSEL

      Rafael Abramovitz for appellant.
    I. Appellant was denied due process and a fair trial because of the perjured testimony of an Assistant District Attorney. (People v Savvides, 1 NY2d 554; Taylor v Lombard, 606 F2d 371; People v Fielding, 158 NY 542; People v Lombard, 4 AD2d 666; Napue v Illinois, 360 US 264.) II. The court erred in sustaining the People’s objection to the admission into evidence of the Sullivan affidavit. (People v Reed, 40 NY2d 204; People v Washington, 51 NY2d 214; People v Schwartzman, 24 NY2d 241; People v Rivera, 45 NY2d 989; People v Yarter, 41 NY2d 830; People v Huntley, 15 NY2d 72; Chambers v Mississippi, 410 US 284; People v Jordan, 59 AD2d 746; People v Cuevas, 67 AD2d 219; People v Simone, 59 AD2d 918.) III. The court erred in admitting the rebuttal testimony of Henry and Sullivan. (People v Biasi, 7 NY2d 544; Harris v New York, 401 US 222; People v Wise, 46 NY2d 321; United States v Havens, 446 US 620; People v Zimmer, 51 NY2d 390; People v Settles, 46 NY2d 154; People v Arthur, 22 NY2d 325; People v Failla, 14 NY2d 178; People v Donovan, 13 NY2d 148.) IV. The admission of appellant’s written confession was in violation of due process. (People v Valletutti, 297 NY 226; Spano v New York, 360 US 315; Jackson v Denno, 378 US 368; People v Huntley, 15 NY2d 72; People v Barboto, 254 NY 170; People v Bennett, 37 NY 117; People v Joyce, 233 NY 61; People v Yarter, 41 NY2d 830; People v Jackson, 77 AD2d 630.) V. The court committed reversible error by not holding a hearing to determine the extent of the prosecutorial misconduct during the voir dire in violation of appellant’s right to a fair and impartial jury. (Duncan v Louisiana, 391 US 145; People v Chestnut, 26 NY2d 481; People v Gordon, 77 AD2d 662; People v Alicea, 37 NY2d 601; People v Steinhardt, 9 NY2d 267; People v McMillan, 65 AD2d 776.) VI. The warrantless arrest of appellant violated due process and the only evidence against him must be suppressed. (Payton v New York, 445 US 573; People v Calhoun, 49 NY2d 398; People v Knapp, 52 NY2d 689; Bumper v North Carolina, 391 US 543; People v Rivera, 90 AD2d 778; Schneckloth v Bustamonte, 412 US 218; Dunaway v New York, 442 US 200; Wong Sun v United States, 371 US 471; People v Wright, 37 NY2d 88; People v Hendricks, 25 NY2d 129.) VII. The admission of the Hathcock testimony over the objections of the defense violated appellant’s rights under the Sixth Amendment of the Constitution of the United States and the Constitution of the State of New York. (People v Simmons, 36 NY2d 126.) VIII. The repeated denials of a subpoena for police records under the. facts and circumstances of this case deprived appellant of his constitutional rights under the Sixth and Fourteenth Amendments to the Constitution of the United States. (United States v Nixon, 418 US 683; Jencks v United States, 353 US 657; People v Rosario, 9 NY2d 286; People v Paige, 48 AD2d 6; People v Malinsky, 15 NY2d 86; People v Consolazio, 40 NY2d 446.)

      Patrick Henry, District Attorney (Mark D. Cohen and Gabrielle Weglein of counsel), for respondent.
    I. The judgment of conviction was not based on the use of false, peijured or otherwise improper rebuttal testimony by the prosecution. (People v Schwartzman, 24 NY2d 241; People v Fitzpatrick, 40 NY2d 44; People v Reed, 40 NY2d 204; People v Fuller, 50 NY2d 628; People v Dackowski, 50 NY2d 962; Green v Georgia, 442 US 95; Chambers v Mississippi, 410 US 284; People v Wise, 46 NY2d 321; United States v Havens, 446 US 620; Harris v New York, 401 US 222.) II. The court properly admitted appellant’s written confession into evidence. (Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55; People v Watson, 57 AD2d 143, 45 NY2d 867; People v Buthy, 38 AD2d 10; People v Moll, 26 NY2d 1, 398 US 911; People v Benzinger, 36 NY2d 29; People v Bracey, 41 NY2d 296; People v Montanez, 41 NY2d 53; People v Johnson, 57 AD2d 844.) III. There was no prosecutorial misconduct during the voir dire. IV. Appellant’s arrest was properly effected after the police received a valid consent to enter his home. (Payton v New York, 445 US 573; United States v Johnson, 457 US 537; People v Gonzalez, 55 NY2d 887; People v Martin, 50 NY2d 1029; People v Pollotta, 79 AD2d 852; People v Dancey, 57 NY2d 1033; People v Miguel, 53 NY2d 920; People v Rivera, 53 NY2d 1005; People v Albert, 98 AD2d 725; People v Baldi, 96 AD2d 212; People v Benson, 88 AD2d 229; People v Johnson, 84 AD2d 715.) V. The court properly admitted the testimony of a deceased witness. (Brady v Maryland, 373 US 83; Moore v Illinois, 408 US 786; United States v Giglio, 405 US 150; Brady v United States, 397 US 742; McMann v Richardson, 397 US 759; Parker v North Carolina, 397 US 790; Giles v Maryland, 386 US 66; People v Stridiron, 33 NY2d 287; Hudson v Blackburn, 601 F2d 785; Cepeda v Henderson, 493 F Supp 186.) VI. Appellant was not deprived of a fair trial by denial of his motion for a subpoena duces tecum for police records. (People v Simone, 92 Misc 2d 306; People v Hasson, 86 Misc 2d 781; People v Norman, 76 Misc 2d 644; United States v Agurs, 427 US 97; Moore v Illinois, 408 US 786; Matter of Rochester Police Dept. v Bergin, 68 AD2d 340; People v Fein, 24 AD2d 32,18 NY2d 162; Matter of Morgenthau v Hopes, 55 AD2d 255; People v Finkle, 103 Misc 2d 985; People v Privitera, 80 Misc 2d 344.)
   OPINION OF THE COURT

Simons, J.

Defendant appeals from a judgment convicting him of felony murder and first degree robbery. The charges arose out of the 1972 entry into the Suffolk County home of Jerry LoBasso, a reputed bookmaker, during which LoBasso was killed, his wife injured and jewels and cash belonging to them were stolen. This is the second time the case has been before us (see 46 NY2d 289). We reversed the prior conviction because the court improperly admitted prejudicial hearsay evidence and testimony relating to defendant’s oral statements to a jail guard, Lieutenant Cannatella, statements which had been elicited from defendant in violation of his right to counsel (see People v Hobson, 39 NY2d 479). At the second trial, the People relied primarily on a written confession defendant made to the police after his arrest, a confession which defendant testified was not voluntary but the product of physical abuse and coercion. To rebut that claim the People offered evidence that defendant had subsequently confirmed his complicity in the crime in two later oral statements obtained in violation of his right to counsel but which involved neither physical abuse nor coercion. It is the admissibility of that rebuttal evidence and defendant’s effort to impeach his own witness with respect to it (see CPL 60.35) which provide the substance of this appeal. Finding no error in the courts’ rulings, we affirm the judgment.

Defendant and codefendants Anthony Franciotti and Robert Ragonese were arrested for the LoBasso crimes on February 14, 1973. The night defendant was arrested, he signed a three-page confession in which he stated that he and Ragonese entered the LoBasso house while Franciotti remained in the car. He admitted accidentally wounding Mrs. LoBasso while he was there and stealing property from her home. He also stated that while he was locating jewelry and cash and placing it in a sack, he heard a gunshot in another room and that when he later left the house with Ragonese he saw Mr. LoBasso on the floor. Defendant took the stand in his own defense and alleged that his written confession was false and that he signed it only after being subjected to repeated threats and beatings. On cross-examination, defendant admitted that Suffolk County officials had subsequently met with, him on March 3, 1973, but he specifically denied making oral statements to them at that time admitting his participation in the crime. Specifically, he denied making any such statement to Lieutenant Cannatella or, later the same day, to Detective Gill of the Suffolk County Police Department and Patrick Henry, who was an Assistant District Attorney of Suffolk County at the time. In rebuttal Cannatella, Gill and Henry testified that they had met with defendant at his request on March 3, 1973 and that he had made the inculpatory statements. The court permitted the testimony but instructed the jury that it was to be considered only on the issue of defendant’s credibility.

Defendant asserts that it was. error to permit this rebuttal evidence because the statements were obtained in violation of his right to counsel. Indeed, we so held with respect to the statement to Cannatella in our prior decision (see 46 NY2d 289, 301) and although we had no occasion at that time to consider the admissibility of the similar statement to Henry and Gill since neither testified at the first trial, the People did not attempt to use it in their direct case and do not dispute that :it was also obtained in violation of defendant’s right to counsel .

I

In Harris v New York (401 US 222) and Oregon v Hass (420 US 714), the United States Supreme Court held that a statement obtained in violation of any aspect of a defendant’s Miranda rights, although not admissible as evidence-in-chief, may be used to impeach a defendant who chooses to take the stand and whose testimony is inconsistent with his illegally obtained statement. We have permitted the use of illegally obtained evidence for that purpose also (see People v Ricco, 56 NY2d 320, 326; People v Washington, 51 NY2d 214, 220; People v Wise, 46 NY2d 321, 324; People v Harris, 25 NY2d 175,177, affd 401 US 222; People v Kulis, 18 NY2d 318,322-323). Our rule permits the use for impeachment not only of statements obtained in violation of a defendant’s Miranda rights (see People v Washington, supra; People v Wise, supra; People v Harris, supra), but also of those obtained in violation of his right to counsel under the State Constitution (see People v Ricco, supra; People v Kulis, supra). There is some authority holding that a statement obtained in violation of the defendant’s Federal constitutional right to counsel is not admissible for impeachment purposes (see United States v Brown, 699 F2d 585; but cf. People v Monaghan, 118 Misc 2d 326), but admissibility rests not on whether a constitutional right is implicated but on a determination of voluntariness (see United States v Havens, 446 US 620). If the statement was voluntary, it may be used to impeach; if it was not, it may not be admitted, even though it may be reliable (New Jersey v Portash, 440 US 450 [legal compulsion]; Mincey v Arizona, 437 US 385 [physical duress]; People v Washington, 51 NY2d 214, supra). Inasmuch as defendant does not contend that his March 3 statements were involuntary, they were admissible for impeachment purposes.

Nor do we believe any distinction should be made because defendant’s inconsistent trial testimony was elicited on cross-examination rather than on direct examination. Central to the Supreme Court’s holding in Havens that “a defendant’s statements made in response to proper cross-examination * * * are subject to otherwise proper impeachment by * * * evidence that has been illegally obtained” (446 US, supra, at pp 627-628) was its conclusion that there is “no difference of constitutional magnitude between the defendant’s statements on direct examination and his answers to questions put to him on cross-examination that are plainly within the scope of the defendant’s direct examination” (id., at p 627).

n

Defendant also asserts that the trial court erred when it refused to admit into evidence an affidavit he offered for the purpose of impeaching his own witness (see CPL 60.35, subd 1). The offer was made when Assistant District Attorney Sullivan, prosecutor in defendant’s first trial, was testifying during the People’s rebuttal concerning two postconviction meetings he had had with defendant in December, 1973 and January, 1974. Defendant had been tried separately and after the conviction Sullivan had offered him a recommendation of leniency if he would aid the prosecution with the case against his two codefendants. While cross-examining Sullivan, defense counsel inquired about an affidavit Sullivan had executed March 21,1973 and submitted to the court during pretrial proceedings. Because this line of questioning went beyond the scope of the District Attorney’s examination of Sullivan about his posttrial meetings with defendant, defense counsel agreed to take Sullivan as her own witness and to be bound by the rules governing direct examination. Thereafter, in response to defense counsel’s questions, Sullivan denied that he had stated in his March 21 affidavit that no one had spoken to defendant about the LoBasso case or that defendant had not mentioned it during the March 3 meetings with Cannatella and with Gill and Henry. In fact the statement in the March 21 affidavit was that then Assistant District Attorney Henry had gone to the jail at defendant’s request (apparently because defendant wished to plea bargain) to speak with him about crimes other than those on which he had been indicted. The court refused to permit the affidavit to be received to impeach Sullivan’s trial testimony.

CPL 60.35 (subd 1) allows a party in a criminal proceeding to impeach his own witness with a prior inconsistent statement, signed and in writing, when that witness “gives testimony upon a material issue of the case which tends to disprove the position of such party”. Although we have previously discussed the meaning of the phrase “tends to disprove the position of such party” (see People v Fitzpatrick, 40 NY2d-44), we have not had occasion to consider what constitutes a “material issue” of the case within the meaning of the statutory provision. It is clear in this case that Sullivan’s rebuttal testimony and defendant’s subsequent cross-examination of him, turned direct examination, did not relate to a material issue and that the trial court properly refused to receive Sullivan’s March 21 affidavit for impeachment purposes.

The material issue before the jury was whether defendant’s written confession on the night he was arrested was voluntary. Not only was the People’s case built around it, but the defense focused almost exclusively on attempting to nullify the confession by demonstrating that defendant was coerced into making it. The prosecution’s rebuttal evidence put in issue whether defendant had made similar oral statements only two weeks later on March 3. Sullivan’s affidavit, however, and the testimony elicited from him by defense counsel on direct examination concerned only whether Sullivan had stated in his affidavit that this case was discussed at the March 3 meetings, and not whether defendant had made inculpatory oral statements at them. If Sullivan had testified, as had Cannatella, Gill and Henry, that on March 3 defendant had implicated himself in the crime, and his affidavit was inconsistent with that testimony, it might well have been admissible to impeach his testimony on a material issue. On the record, however, Sullivan’s testimony was not only irrelevant to the issue whether defendant inculpated himself on March 3, but it had no bearing on the principal issue in the case, whether his February 14 written confession was voluntary. Moreover the Sullivan affidavit was not admissible to impeach the trial testimony of Cannatella, Gill and Henry, as defendant impliedly was attempting to do, since they were not defendant’s witnesses and the affidavit was not their signed writing as the statute requires (see CPL 60.35, subd 1; see, also, People v Dackowski, 50 NY2d 962, 963).

We have considered defendant’s remaining contentions and find them without merit.

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

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

Order affirmed.


text:
    Ismail Parsa, Respondent, v State of New York, Appellant.
    Argued November 15, 1984;
    decided December 27, 1984

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Betsy Broder and Peter H. Schiff of counsel), for appellant.
    Section 112 of the State Finance Law bars recovery on claimant’s first and third causes of action. The statutory requirements of section 112 cannot be circumvented by resort to a theory of implied contract. (Seif v City of Long Beach, 286 NY 328; Belmar Contr. Co. v State of New York, 233 NY 189; McDonald v Mayor of City of N. Y., 68 NY 23; Guaranty Trust Co. v State of New York, 299 NY 295; 405 Co. v State of New York, 118 Misc 2d 305; Lutzken v City of Rochester, 7 AD2d 498; Stone v White, 301 US 532; Friar v Vanguard Holding Corp., 78 AD2d 83; Schank v Schuchman, 212 NY 352.)

      Morris Weissberg and Robert J. Krengel for respondent.
    I. The Court of Claims has jurisdiction over claimant’s suit for money had and received by the State of New York as repository of money which a State hospital received from Blue Cross as paying agent for certain hospital and doctor bills payable from Social Security funds, where such State hospital billed to and received from Blue Cross payment for claimant’s medical services to potential kidney transplant donors or recipients in such State hospital. (Miller v Schloss, 218 NY 400; IMFC Professional Servs. v State of New York, 59 AD2d 1047; Matter of Bay Ridge Diagnostic & Analytical Lab. v State of New York, 71 AD2d 889; Community Nat. Bank & Trust Co. v State of New York, 68 AD2d 999; Schaffer v Evans, 57 NY2d 992; Bank of N. Y. v Tully, 84 AD2d 704; Redmond v. Mayor of City of N. Y., 125 NY 632; Federal Ins. Co. v Groveland State Bank, 37 NY2d 252; Forest Fehlhaber v State of New York, 74 AD2d 272; St. Paul Fire & Mar. Ins. Co. v State of New York, 99 Misc 2d 140.) II. Claimant’s suit against the State of New York for money had and received which a State hospital billed to and received from Blue Cross for claimant’s medical services to potential kidney transplant donors or recipients in a State hospital did not attempt to circumvent the provisions of section 112 of the State Finance Law that the State’s contracts “shall first be approved by the comptroller and filed in his office”. (Stone v White, 301 US 532; Bradkin v Leverton, 26 NY2d 192; Ward v Kropf, 207 NY 467; Rosasco Creameries v Cohen, 276 NY 274; Cassella v City of Schenectady, 281 App Div 428.)
   OPINION OF THE COURT

Simons, J.

Claimant is a physician and a full-time professor of pathology at Downstate College of Medicine, a branch of the State University of New York. The State pays him a salary for his duties as professor and it pays him supplemental compensation for pathology services as a member of Downstate Pathology Associates, P. C. In this action claimant seeks further compensation for services performed in Downstate’s kidney transplant program for end stage renal disease (ESRD) patients during a two-year period from April 1, 1981 to March 31, 1983. A proposed agreement between claimant and Downstate had been drafted which authorized payments of $145,000 per year for these services, but it was not executed by Downstate or approved by tile State Comptroller. Downstate received Medicare benefits for ESRD patients from the Federal Government during this period, however, and paid part of them to claimant to compensate him for the services he had performed in the ESRD program. He rejected the payment as inadequate and instituted this action in the Court of Claims, claiming that the State owes him more.

Claimant’s first and third causes of action are for money had and received. He alleges that a portion of the Medicare funds paid by the Federal Government to the State equalling $290,000 represented two years’ compensation for his services in the ESRD program and that it rightfully belongs to him. His second and fourth causes of action seek relief in the nature of mandamus directing Downstate to comply with the Federal statute and to pay claimant $290,000 for his professional services. The State moved to dismiss the claim asserting that it failed to state a cause of action because claimant had not obtained approval of the payments by the State Comptroller as section 112 of the State Finance Law requires. The Court of Claims granted the State’s motion, ruling that it lacked jurisdiction to adjudicate claims for money had and received and claims seeking relief in the nature of mandamus. The Appellate Division modified that order by reinstating the first and third causes of action. The court believed that Downstate was merely acting as a conduit in receiving Medicare funds representing compensation for claimant’s services and that those funds belonged to him. It ruled, therefore, that claimant could assert a cause of action for money had and received, that the action was at law and within the jurisdiction of the Court of Claims and that it was not foreclosed by section 112 of the State Finance Law. It agreed that the second and fourth causes of action seeking relief in the nature of mandamus could not be maintained in the Court of Claims and that ruling is not contested.

A party contracting with the State is chargeable with knowledge of the statutes which regulate its contracting powers and is bound by them (Belmar Contr. Co. v State of New York, 233 NY 189,194). Moreover, the State’s acceptance of benefits furnished under a contract made without authority does not estop it from challenging the validity of the contract or from denying liability pursuant to it (Becker & Assoc. v State of New York, 48 NY2d 867, affg 65 AD2d 65; see, also, Seif v City of Long Beach, 286 NY 382; McDonald v Mayor of City of N. Y., 68 NY 23). Even though a promise to pay may be spelled out from the parties’ conduct, a contract between them may not be implied to provide “rough justice” and fasten liability on the State when applicable statutes expressly prohibit it (see Lutzken v City of Rochester, 7 AD2d 498). The result may seem unjust but any other rule would completely frustrate statutes designed to protect the public from governmental misconduct or improvidence. The contractor’s option is to withhold his services unless an agreement is executed and approved as the statutes require.

The Legislature has specified that contracts exceeding $5,000 shall not be effective unless first approved by the State Comptroller. Inasmuch as claimant’s contract was neither executed by the State nor approved by the Comptroller, he may not maintain an action on it (see Becker & Assoc. v State of New York, 48 NY2d 867, supra). Nor does he claim that he may. He contends that notwithstanding Downstate’s failure to execute the contract or to obtain the Comptroller’s approval, his claim may be maintained as an action resting on implied contract, an action for money had and received. We agree with the Appellate Division that an action for money had and received is an action at law which may be maintained in the Court of Claims but we disagree that claimant has stated a right to recover under the circumstances presented. We therefore reverse and dismiss the claim.

It is important at the outset to note that the courts recognize two different types of implied contract. The first, a contract implied in fact, rests upon the conduct of the parties and not their verbal or written words. It is a true contract based upon an implied promise and therefore it is subject to the provisions of section 112 of the State Finance Law.

The second type, the type claimed here for money had and received is a contract implied in law. Although the action is recognized as an action in implied contract, the name is something of a misnomer because it is not an action founded on contract at all; it is an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he ought not to retain and that belongs to another (Miller v Schloss, 218 NY 400, 406-407). It allows plaintiff to recover money which has come into the hands of the defendant “impressed with a species of trust” (see Chapman v Forbes, 123 NY 532, 537) because under the circumstances it is “ ‘against good conscience for the defendant to keep the money’ ” (Federal Ins. Co. v Groveland State Bank, 37 NY2d 252, 258, quoting from Schank v Schuchman, 212 NY 352, 358). The remedy is available “if one man has obtained money from another, through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass” (Miller v Schloss, supra, p 408). The action depends upon equitable principles in the sense that broad considerations of right, justice and morality apply to it, but it has long been considered an action at law (see Roberts v Ely, 113 NY 128; Diefenthaler v Mayor of City of N. Y., 111 NY 331, 337). An action for money had and received has been permitted against a public body in instances where plaintiff has paid money by mistake, money has been collected for an illegal tax or assessment, or property is erroneously taken or withheld by a public official (McDonald v Mayor of City of N. Y., 68 NY 23, 29, supra; see, e.g., Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262; and New York R. T. Corp. v City of New York, 275 NY 258,264, affd 303 US 573 [recovery of taxes paid under compulsion of an unconstitutional tax levy]; County of Oneida v First Citizens Bank & Trust Co., 264 App Div 212 [action by a county and its treasurer against a. depositor bank to recover funds deposited in a self-insurance plan which were fraudulently paid to third parties]).

Subdivision 2 of section 9 of the Court of Claims Act gives that court jurisdiction to determine claims for “breach of contract, express or implied”. The court had jurisdiction to adjudicate this claim for money had and received, therefore, because it states a legal cause of action for money damages founded upon an implied in law contract (see Stone v White, 301 US 532, 534-535; Matter of First Nat. City Bank v City of New York Fin. Admin., 36 NY2d 87). The action is not barred by section 112 of the State Finance Law because claimant is not seeking to enforce an agreement; he is seeking to recover funds from the State which he alleges belong to him and which the State is wrongfully withholding from him. His cause of action is predicated on his claim that he is entitled to $290,000 of the Medicare funds paid by the Federal Government to Downstate and, in the language of the cases, that he has been deprived of them by “oppression, imposition, extortion, or deceit, or by the commission of a trespass” (see Miller v Schloss, supra, p 408), or by mistake or illegality (see McDonald v Mayor of City of N. Y., supra, p 29). That was the Appellate Division’s view of the action, that pursuant to the Federal statutes some allocable portion of Downstate’s Medicare receipts belonged to claimant and that it was merely a collecting and disbursing agent. We reverse because the Medicare statute does not give claimant any legal claim to funds paid to Downstate for his services.

Federal Health Insurance for the Aged, popularly known as “Medicare”, was adopted as part of the Social Security Act of 1965. In 1978 the program was expanded to extend benefits to victims suffering from end stage renal disease so that they would be assured of adequate medical treatment in the face of skyrocketing medical costs (US Code Cong & Admin News, 1978, vol 3, Legislative History, Pub L 95-292, p 848). The Medicare program consists of two basic, substantively distinct, parts — part A providing insurance for hospital and hospital-related services (US Code, tit 42, §§ 1395c-1395i), and part B, . which creates a voluntary insurance program to pay for medical and other health services, including physicians, diagnostic home health and outpatient services. Part B is available to persons age 65 and older who agree to pay monthly premiums as established by the Secretary of Health and Human Services (US Code, tit 42, §§ 1395j-1395w). Payments under part A are made only to providers, i.e., “a hospital, skilled nursing facility * * * or home health agency” (US Code, tit 42, § 1395x, subd [u]) whereas payments under part B may be made to the patient or to the patient’s assignee. This claim concerns benefits paid for hospital services under the provisions of part A.

The rate of reimbursement to providers under part A is the lesser of “(A) the reasonable cost of such services * * * or (B) the customary charges with respect to such services” (US Code, tit 42, § 1395f, subd [b], par [1]) and reimbursement will be provided for such in-patient hospital services as bed and board, nursing services, use of hospital facilities, and “such other diagnostic or therapeutic items or services, furnished by the hospital or by others” (US Code, tit 42, § 1395x, subd [b]; see 20 CFR 405.116 [a]). Reimbursable items may include “medical or surgical services provided by a physician, resident, or intern” (US Code, tit 42, § 1395x, subd [b], par [7]; § 1395rr, subd [b], par [1], cl [A]).

For purposes of this motion we assume that claimant performed services in the ESRD program at Downstate College of Medicine between April 1, 1981 and March 31, 1983, that the services were compensable under Medicare and that Downstate received funds from the Government for them. That is not to say, however, that the State is holding funds that rightfully belong to him. The statute governs the relationship between the Secretary of Health and Human Services and providers of medical services to victims of renal disease. As a provider, the hospital was compensated for supplementary laboratory services claimant performed for it, as it was for other items included in its billing, i.e., “operating room”, “radiology”, “inhalation therapy”, “cardiac lab”, “renal dialysis”, “CAT scan”, “anesthesiology”, etc. None of these charges, however, were made on behalf of named physicians or therapists supplying the services listed because the statute does not permit the payment of physicians’ fees, as such. They were not entitled to payment under part A because they were not providers. The regulations provide that the hospital may be reimbursed for such services by receiving either sums of money representing part of staff salaries allocated to ESRD or that the Secretary also will recognize private agreements between the hospital as a cost of thé provider. But payment for staff physicians’ services are matters of private contract between the provider and the physician and whatever sums are paid over by the Federal Government, are payments to the hospital for services it supplied to the patients. Insofar as the statute refers to charges made by the provider which may include reasonable physician’s services, it states a formula for computing the provider’s charges, it does not set aside fees which the physician is entitled to receive as a matter of law.

In short, the State has not received nor is it holding sums of money to which claimant is entitled any more than any of the several physicians or therapists are entitled to the itemized sums listed on the hospital’s bill for various services they supplied to in-patients and which, in the aggregate, constituted the hospital’s total charge. Inasmuch as claimant cannot establish that the State is wrongfully withholding sums from him to which he is entitled under the Federal statute, he has failed to state a cause of action for money had and received.

Accordingly, the order of the Appellate Division should be reversed, the certified question should be answered in the negative, and the remaining claims dismissed.

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

Order reversed, with costs, remaining claims dismissed and question certified answered in the negative.

      . Section 112 of the State Finance Law provides, in pertinent part, as follows: “2. Before any contract made for or by any state department, board, officer, commission, or institution, shall be executed or become effective, whenever such contract exceeds five thousand dollars in amount, it shall first be approved by the comptroller and filed in his office. Whenever any liability of any nature shall be incurred by or for any state department, board, officer, commission, or institution, notice that such liability has been incurred shall be immediately given in writing to the state comptroller” (as amd by L 1980, ch 468, § 1).

      . 42 CFR 405.484 provided:
      “(b) Scope and effect of agreement. Typically, contracts between hospital-based physicians and hospitals provide for the payment of an aggregate amount (in the form of a salary, a percentage arrangement, or on some other basis) to the physician for all of his services within the institution without a service-by-service itemization. Where the physician is on salary and normally spends full time in administration of departmental affairs, the full salary may be considered a reimbursable hospital cost item and Medicare will bear its proportionate share of such cost. Where a salaried physician devotes only part of his time to institutional affairs and also renders an appreciable volume of personal patient care, only part of his salary may be attributed to hospital costs since the law requires that ‘medical or surgical services’ must be excluded in determining a hospital’s reimbursable costs.

        “(c) Allocation of compensation by parties. An agreement by the parties that a certain portion of the physicians’ compensation will be excluded from hospital costs and will be charged to those patients who are identified in accordance with § 405.483 will be respected unless, because of the small portion of time the physician devotes to the personal care of patients, such an agreement could lead to unreasonable charges to such patients.”