author: Levine, J. Smith, J.

text:
    [634 NE2d 961, 612 NYS2d 360]
    The People of the State of New York, Respondent, v Kenneth Inniss, Appellant.
    Argued March 22, 1994;
    decided May 10, 1994

      POINTS OF COUNSEL

      Steven N Feinman, White Plains, for appellant.
    I. The Court below incorrectly found that the trial court acted properly when it refused to allow defense counsel to call a witness to testify to events denied by the People’s only witness to the crime and to introduce into evidence a transcript of the cooperation agreement with that witness to establish his motive to falsify and his interest in the case; said error deprived appellant of his right to confront witnesses against him and his due process right to a fair trial. (People v Chin, 67 NY2d 22; People v Jackson, 74 NY2d 787; Davis v Alaska, 415 US 308; People v Gissendanner, 48 NY2d 543; People v Pavao, 59 NY2d 282; People v Schwartzman, 24 NY2d 241, 396 US 846; People v Ellis, 126 AD2d 663; People v Beavers, 127 AD2d 138; People v Green, 156 AD2d 465; People v White, 57 NY2d 129.) II. The Court below erred when it held that the trial court’s unbalanced charge on how to assess the key prosecution witness’s credibility, which told the jury that his criminal record was relevant only to his credibility and completely failed to mention his agreement with the People and consequent motive to falsify his testimony, did not deprive appellant of his due process right to a fair trial. (People v Jackson, 74 NY2d 787; United States v Bufalino, 683 F2d 639, 459 US 1104; People v Sherman, 156 AD2d 889; People v Strawder, 124 AD2d 758.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Sharon Kiel and Steven J. Chananie of counsel), for respondent.
    I. The trial court properly precluded testimony by Saunders’ alleged robbery victim, in an unrelated and dismissed case, because it was collateral. (People v Pavao, 59 NY2d 282; People v Sorge, 301 NY 198; People v Zabrocky, 26 NY2d 530; People v Schettini, 42 AD2d 878; People v Schwartzman, 24 NY2d 241, 396 US 846; People v Green, 156 AD2d 465; People v Chin, 67 NY2d 22; People v Hudy, 73 NY2d 40; People v Smith, 63 NY2d 41, 469 US 1227; People v Crimmins, 36 NY2d 230.) II. The trial court properly precluded additional evidence of the cooperation agreement because it would have been cumulative. (Giglio v United States, 405 US 150; People v Steadman, 82 NY2d 1; People v Novoa, 70 NY2d 490; People v Cwikla, 46 NY2d 434; People v Mangi, 10 NY2d 86; People v Savvides, 1 NY2d 554; People v Roth, 30 NY2d 99; People v McDowell, 9 NY2d 12; People v Thomas, 46 NY2d 100, 444 US 891; People v Brooks, 131 NY 321.) III. The court’s charge, when viewed as a whole, adequately conveyed to the jury the correct standard by which to evaluate Saunders’ testimony. Any failure by the trial court to mention the cooperation agreement in its charge was remedied by evidence received during direct and cross-examination as well as during summation. (People v Bynum, 70 NY2d 858; People v Nuccie, 57 NY2d 818; People v Jackson, 74 NY2d 787; People v Jamison, 188 AD2d 551; People v Dewindt, 156 AD2d 706; People v Whalen, 59 NY2d 273; People v Ochs, 3 NY2d 54; People v Reyes, 118 AD2d 666; People v Brabham, 77 AD2d 626.)
   OPINION OF THE COURT

Levine, J.

Defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree arising out of the assassination-like killing of Brian Rich, a reputed major drug dealer, on Sutphin Boulevard, Queens County, on the evening of Sunday, August 3, 1986. The only eyewitness who testified at the trial was Richard Saunders, whose evidence was given pursuant to a cooperation agreement entered into with the District Attorney’s office in October 1987. Saunders was a longtime friend of both defendant and the victim. Saunders testified that, while in a local detention facility awaiting trial on unrelated robbery in the first degree and unlawful imprisonment charges, he contacted the authorities regarding his knowledge of the identity of Rich’s killer and eventually was promised dismissal of all pending charges in exchange for giving truthful testimony in the prosecution of the murder.

According to Saunders, sometime in mid-July 1986 defendant offered him $10,000 to murder Rich, which he promptly declined, not taking the defendant seriously. Then, on the evening of August 3, he was walking with Rich on Sutphin Boulevard when he observed a grey van slowly approaching them. He separated himself from Rich because he thought the van might be occupied by police intending to arrest Rich. As the van pulled over to the curb, Saunders saw the sliding door open up and recognized defendant halfway out of the vehicle, armed with an Uzi automatic weapon. Saunders ran as the shooting started and he heard two kinds of weapons being fired. Rich died as a result of gunshot wounds. Saunders testified that defendant called him the next day to chide him for being so close to Rich, knowing that a "contract” was out on his life and to warn Saunders against revealing that he was one of the perpetrators. Saunders also testified to an October 5, 1987 telephone conversation with defendant in which they discussed the killing and another telephone conversation after defendant’s arrest, in which defendant threatened him if he testified.

The forensic evidence adduced at the trial was that the victim had 28 entrance wounds, and that the vast majority of spent bullets and shells recovered from his body or at the crime scene were fired from the same gun, and were of the same caliber as bullets used in the Uzi machine pistol. Also introduced into evidence was a tape recording of the October 5, 1987 telephone conversation between Saunders and defendant, which was initiated by Saunders from the District Attorney’s office pursuant to the cooperation agreement. During that conversation, Saunders turned to the subject of the killing of Rich and asked defendant in substance why he had to use the kind of weapon that would "put so many holes in [Rich]”. Defendant replied that "the Uzi was a weapon they used to kill and that was the gun he had to use”. A postarrest statement of defendant was also introduced into evidence. The defense consisted of the testimony of two alibi witnesses and of the defendant. Defendant was convicted as charged.

The Appellate Division affirmed defendant’s conviction (192 AD2d 553). A Judge of this Court granted defendant leave to appeal, and we now affirm.

Defendant’s first point on this appeal is that the trial court committed reversible error in refusing the defense requests to (1) introduce the testimony of the complainant, a Mark Sills, in the dismissed robbery and unlawful imprisonment indictment against Saunders; and (2) introduce into evidence a transcript of the cooperation agreement between Saunders and the District Attorney’s office leading to that dismissal.

We disagree. Saunders was subjected to rigorous and intensive cross-examination concerning both his commission of the criminal offenses in the dismissed indictment and concerning the cooperation agreement between him and the prosecutor’s office. The defense was furnished with the portions of the sealed file on the dismissed indictment to enable effective cross-examination. Saunders fully admitted the substance of the cooperation agreement and that his cooperation was motivated by the expectation of leniency. However, he denied committing the crimes charged against him in the indictment.

The only ground defendant put forth to the trial court for seeking to introduce the testimony of Sills (Saunders’ alleged victim in the dismissed charges) and the transcript of the cooperation agreement was to contradict Saunders’ denial of guilt of the dismissed charges, and thereby to impeach Saunders’ credibility. Thus, defense counsel in making both requests stated:

"mr. geduldig: My problem is if I want to bring Sills in to show that a gun was put on him.
"the court: You won’t get that either. That’s a collateral issue.
"mr. geduldig: Perjury. * * *
"mr. geduldig: Let’s assume for argument sake that the agreement contains a statement that he committed a crime.
"the court: I don’t care if he did or not. It’s a collateral issue” (emphasis supplied).

At no time during the trial did defense counsel ground his argument for the admissibility of Sills’ testimony and of the cooperation agreement on their probative value to demonstrate Saunders’ bias or interest, as defendant now contends on appeal. Consequently, the admissibility of Sills’ testimony and the cooperation agreement to show Saunders’ bias or interest was not preserved for review by this Court (see, People v Tarsia, 50 NY2d 1, 9-10; People v Cona, 49 NY2d 26, 33, n 2; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 470.05, at 12).

Because the only basis given at the trial for introducing the foregoing evidence was to establish Saunders’ "perjury”, i.e., to impeach his credibility, the Trial Judge properly ruled that its admission was barred by the collateral impeachment rule (see, People v Pavao, 59 NY2d 282, 288-289; People v Sorge, 301 NY 198, 201; Richardson, Evidence § 491, at 477 [Prince 10th ed]). Moreover, as the Appellate Division noted, since the terms of the cooperation agreement and Saunders’ interest and bias were "exhaustively]” (192 AD2d, at 554) explored on cross-examination, introduction of documentary evidence of the agreement was properly denied as being merely cumulative (see, People v Chin, 67 NY2d 22, 29).

Defendant’s remaining argument is that the Trial Judge committed reversible error in its instructions to the jury. Of the errors alluded to, the only one preserved was the refusal of defendant’s request to give an interested witness charge regarding Saunders’ testimony, i.e., that his testimony "should be scrutinized carefully and a determination made as to whether any benefit he received affected the truthfulness of that testimony” (People v Jackson, 74 NY2d 787, 790; see, 1 CJI[NY] 7.24). However, Saunders’ bias and interest were hammered at by the defense in opening, cross-examination and in summation, and not seriously disputed. Under such circumstances, we conclude that the charge as a whole, including the instruction given the jury that it could consider the interest or bias of any witness in assessing the credibility of that person, was sufficient to convey the need to scrutinize Saunders’ testimony with care. And the jury indeed intensely scrutinized Saunders’ testimony, requiring that it be read back to them twice, along with twice hearing the tape recording of his October 5 conversation with defendant. Therefore, the refusal of this requested charge forms no basis for reversal (People v Warren, 76 NY2d 773, 775; People v Agosto, 73 NY2d 963, 967).

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

Smith, J.

(dissenting). I dissent because the trial contained two prejudicial errors. First, the trial court refused to direct the production of Brady material (Brady v Maryland, 373 US 83) and Rosario material (People v Rosario, 9 NY2d 286). Second, the trial court refused to charge the jury that the main witness against defendant was an interested witness. The requests for the material and the charge were timely made.

Defendant was convicted of the murder of Brian Rich on August 3, 1986. The chief witness against defendant, Richard Saunders, testified that in July 1986, defendant approached him and asked if he would kill Rich for $10,000. Saunders did not think defendant was serious and refused. On the night of August 3, 1986, around 11:00 p.m., Saunders testified, he was walking with Rich and a woman, when a van pulled up. Saunders then saw the door open and defendant shoot and kill Rich.

It was not until almost a year after the murder, in June 1987, that Saunders, who was in jail on a robbery charge, contacted a detective and eventually agreed to cooperate with the police concerning the murder of Rich. During the course of that cooperation, Saunders telephoned defendant and engaged him in a conversation about the murder. Saunders asked defendant why he had to kill Rich "that way” and "put so many holes in him.” According to Saunders, defendant replied that "the Uzi was a weapon they used to kill and that was the gun he had to use.” Saunders also testified that the day after the killing, defendant came to his apartment and asked him why he had been with Rich knowing that a contract was out on his life and that he, Saunders, could have been killed. Defendant also threatened Saunders not to reveal anything incriminating defendant.

Defendant took the stand and denied killing Rich. He stated that his conversation with Saunders about the murder was "macho” conversation and also pursuant to a prearranged plan to help Saunders with his robbery charge. Saunders told him that if someone at the jail listened to his conversation with Saunders, that would be a violation of Saunders’ constitutional rights, Saunders would then be freed and would not testify against defendant.

Defendant made a pretrial request that any agreement between the prosecution and Saunders be produced. Prior to Saunders’ cross-examination at trial, defendant again asked for the cooperation agreement and, specifically, the minutes of the March 4, 1988 proceeding at which the robbery charges against Saunders were dismissed "for the reasons stated on the record.” Defendant claimed that the People had not met their burden in providing Brady or Rosario material. No minutes or cooperation agreement were produced. At the trial Saunders testified that he had agreed to testify in return for the pending robbery charges being dropped.

Both the majority and the dissent are in accord that any cooperation agreement between the prosecution and their witness, Saunders, had to be revealed. In fact, revelation is required by our cases. "The existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness, is evidence which must be disclosed under Brady principles” (People v Cwikla, 46 NY2d 434, 441). Where the majority and dissent differ is in the People’s obligation to produce any evidence of that cooperation agreement which was contained in the proceedings that dismissed the robbery charge against Saunders. In my view the People had an obligation not only to reveal the cooperation agreement but also to provide defendant with any written or recorded evidence of that agreement. The assertions here by the People’s main witness as to the nature of the agreement were not binding upon defendant.

Moreover, if at the time of the dismissal of the robbery charge against Saunders, he discussed this case at all, that discussion, arguably, constituted Rosario material. In People v Rosario (supra) this Court, noting that there was no substitute for the "single-minded counsel for the accused” (9 NY2d, at 290), rejected a contention that it was sufficient for a trial court to examine prior statements of a witness and turn over to the defendant anything it believed to be relevant.

I cannot agree with the majority that the only basis for defendant’s request for production of the minutes of the dismissal proceeding against Saunders was the issue of credibility. In his omnibus motion, defendant had asked for "[a]ny evidence known to the People which may be exculpatory in nature and favorable to the defendant.” At trial, defendant asked for production of the minutes because, "The People did not meet their burden with providing me with Brady or Rosario material.” Toward the end of his cross-examination of Saunders, defendant again asked for the transcript and, as he spoke, was cut off by the Trial Judge who said he would not get the transcript.

It is also clear that both at the Appellate Division and here, defendant argued that the production and introduction of the cooperation agreement were essential to his contention that the witness, Saunders, had a strong interest and bias in the outcome of the case. Such impeachment evidence, like exculpatory evidence, falls within the Brady rule that such evidence must be provided to defendant (see, United States v Bagley, 473 US 667, 676).

The failure to produce the transcript of the dismissal proceeding creates an issue as to Saunders’ assertion at trial that he did not commit the robbery of which he was charged and which led to the cooperation agreement. If Saunders admitted or arguably admitted that he committed the robbery, his credibility is severely compromised. Moreover, the transcript is relevant not only on the issue of credibility but on the issues of interest and bias as well. Defendant had the right to see the transcript in order to use it on cross-examination. In light of the failure to produce the transcript, it is simply speculative to conclude that it was cumulative.

Turning to the second issue, defendant requested a charge that Saunders was an interested witness. The request was refused both prior to and after the court’s charge. When a cooperation agreement such as that here has been entered into in return for testimony, it is incumbent upon the trial court, when requested, to give more than the standard charge on interested witnesses (see, People v Jackson, 74 NY2d 787 [specific charge as to the interest of cooperating witness should have been given]).

For the foregoing reasons, the order of the Appellate Division should be reversed, the conviction vacated and a new trial ordered.

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

Order affirmed.

      . The record indicates that the cooperation agreement was an oral one. However, the dismissed indictment, disclosed to defendant for purposes of cross-examination of Saunders, contained a notation that the prosecutor had moved to dismiss it "for the reasons stated on the record”. No transcript of the minutes of the proceedings on the dismissal of Saunders’ indictment was found in the sealed file, and it is inferable from the record that the minutes of that proceeding were not transcribed. Defense counsel was, thus, actually requesting the transcription of the "reasons stated on the record”, for the purpose of introducing those minutes into evidence.

      . Contrary to the position of the dissent, any claim made below concerning the prosecution’s failure to fulfill its Rosario (9 NY2d 286) or Brady (373 US 83) obligations has not been pursued on appeal before this Court.


source: Caselaw Access Project

author: Simons, J. Titone, J.

license: Public Domain

text:
    [634 NE2d 966, 612 NYS2d 365]
    The People of the State of New York, Respondent, v Lamont Branch, Appellant.
    Argued March 24, 1994;
    decided May 12, 1994

      POINTS OF COUNSEL

      Linda Poust, New York City, and Philip L. Weinstein for appellant.
    I. Appellant was denied his rights to due process and confrontation when the prosecutor was permitted to take her witness off the stand as soon as he gave an answer during direct examination which was harmful to the prosecution, and consult with him privately and off the record, which resulted in the witness’s returning to the stand and changing his answer. (Perry v Leeke, 488 US 272; People v Enrique, 165 AD2d 13, 80 NY2d 869; Geders v United States, 425 US 80; United States v Malik, 800 F2d 143; People v Paperno, 54 NY2d 294; Pointer v Texas, 380 US 400; United States v North, 910 F2d 843; United States v Loyd, 743 F2d 1555; United States v Adams, 785 F2d 917.) II. Because the basis of the witnesses’ identifications was amply established by other evidence, the extensive testimony concerning appellant’s purported drug dealing activities, which could easily have been redacted, was wholly unnecessary and, hence, inadmissible. (People v Robinson, 68 NY2d 541; People v Allweiss, 48 NY2d 40; People v Molineux, 168 NY 264; People v Beam, 57 NY2d 241; People v Alvino, 71 NY2d 233; People v Hudy, 73 NY2d 40; People v Satiro, 72 NY2d 821; People v Ely, 68 NY2d 520; People v Ventimiglia, 52 NY2d 350; People v Oritz, 156 AD2d 77.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Thomas S. Burka and Roseann B. MacKechnie of counsel), for respondent.
    I. Defendant has failed to preserve for appellate review his claims regarding the trial court’s decision to permit the prosecutor to confer briefly with People’s witness, Thomas Edwards, during Edwards’ direct examination. In any event, the court’s conduct constituted a proper exercise of discretion. (People v Liccione, 50 NY2d 850; People v Parsons, 150 AD2d 614, 74 NY2d 850; People v Udzinski, 146 AD2d 245, 74 NY2d 853; People v De Jesus, 42 NY2d 519; People v Yut Wai Tom, 53 NY2d 44; Perry v Leeke, 488 US 272; People v Enrique, 165 AD2d 13, 80 NY2d 869; People v Narayan, 58 NY2d 904; United States v Loyd, 743 F2d 1555; United States v Mandell, 525 F2d 671.) II. The court’s decision to admit evidence of defendant’s involvement in uncharged crimes as evidence that was probative of Edwards’ ability to identify defendant did not constitute an abuse of discretion. (People v Bradley, 150 AD2d 592, 74 NY2d 845; People v Jamerson, 119 AD2d 588, 68 NY2d 757; People v Beam, 57 NY2d 241; People v Molineux, 168 NY 264; People v Alvino, 71 NY2d 233; People v Jackson, 39 NY2d 64; People v Louis, 1 NY2d 137; People v Hudy, 73 NY2d 40; People v Santarelli, 49 NY2d 241; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Simons, J.

This appeal raises the question of whether the trial court abused its discretion when, during direct examination, it allowed the prosecutor to hold a brief private conference with a witness after that witness had given an unexpected and potentially damaging response. We hold that the trial court acted within its discretion in permitting such a conference to take place with appropriate safeguards.

Defendant was charged with murder and other crimes after Lushon Josephs was shot inside his Brooklyn apartment. A key prosecution witness was Thomas Edwards. In his statements to investigators and his testimony before the Grand Jury, Edwards said he had seen defendant carrying a gun when defendant entered the Josephs residence with two companions. He stated further that he heard a shot inside and then saw the three leaving, with defendant still armed.

At trial, however, Edwards changed his account. In response to a question from the prosecutor shortly after he took the stand, Edwards claimed that one of defendant’s companions had been carrying the gun. Defendant, he said, was unarmed. The prosecutor immediately requested a bench conference, at which she asked for a brief recess to talk to Edwards. The prosecutor expressed her concern that Edwards had changed his statement at trial because he had been intimidated by defendant’s family members outside the courtroom shortly before taking the stand. The court was advised that court officers — contrary to the court’s instructions — had prevented Edwards from arriving through a private entrance and, as a result, Edwards was forced to enter through the public area, where the alleged contact with defendant’s family took place.

Before ruling, the court allowed defense counsel to state and explain his objections. It then granted the recess and told both attorneys that Edwards could be cross-examined without limitation about the recess and any conversation he had with the prosecutor during it. The attorneys agreed, at the request of defense counsel, that Edwards would be told that he was not required to speak to the prosecutor. After the recess, the jury was informed that the recess had been called to allow the prosecutor and the witness to meet.

Upon his return to the stand, Edwards changed his testimony and said that defendant had been carrying the gun. The prosecutor was prohibited by the court from fully exploring what had caused the earlier contradictory testimony. Instead, Edwards was allowed to say only that he was scared when he testified earlier. No reason for his fear was offered or allowed. Though defense counsel was free to cross-examine about the recess and conference, he chose not to do so. Nor did he request, as he could have, an opportunity to voir dire the conference participants about the content of the meeting prior to cross-examination. In his summation, however, defense counsel suggested that Edwards had changed his testimony because he had been coached during the meeting with the prosecutor.

Defendant was convicted of murder in the second degree, burglary in the first degree and criminal possession of a weapon in the second degree. On appeal, the Appellate Division affirmed, holding that the decision to allow the prosecutor’s conference with Edwards was not an abuse of discretion. We now affirm.

There can be no question that once a witness takes the stand the truth-seeking function of a trial will most often be best served by requiring that the witness undergo direct questioning and cross-examination without interruption for counseling (see, Perry v Leeke, 488 US 272, 282; see also, People v Enrique, 80 NY2d 869, affg on opn below 165 AD2d 13, 17; People v Narayan, 58 NY2d 904). Indeed, a trial court may reject a request by a defendant to speak with his or her attorney during testimony despite the defendant’s conceded right to counsel (see, Perry v Leeke, supra, at 284). Nonetheless, in rejecting the contention that trial courts must allow attorney-client conferences to testifying witnesses, the Supreme Court and our Court have been careful to note that trial courts may allow such conferences as a matter of discretion (see, id., at 284; see also, People v Enrique, 80 NY2d 869, affg on opn below 165 AD2d 13, 22, supra). Though the Perry line of cases dealt with midtestimony conferences involving defendants, we see no reason why the rules articulated in those cases should not apply generally to other witnesses, including the prosecution witness here (see, Perry v Leeke, supra, at 282).

Thus, the decision to grant a recess and to allow a conference between a lawyer and a testifying witness falls within the broad discretion allowed a trial court in its management of a trial. This Court, as a court of law, may reverse such decisions only for legal error, i.e., "the case presented shows no room for the exercise of * * * reasonable discretion” (Matter of Coombs v Edwards, 280 NY 361, 364). We are not free to substitute our judgment for that of the trial court when conflicting facts and inferences reasonably support a decision for or against a certain result (see, Cox v Lykes Bros., 237 NY 376, 382; Matter of Droege, 197 NY 44, 53).

The Trial Judge in this case was confronted with the possibility that a witness was testifying falsely at the trial, thereby jeopardizing a criminal prosecution and exposing himself to perjury charges. Significantly, it was alleged that the witness was lying, not because of anything the prosecutor had done or failed to do, but because of a hallway confrontation that would not have occurred had court security personnel followed instructions. Faced with the need to make sure the court’s truth-seeking function was not impaired — either by witness intimidation or by improper witness coaching by the prosecution — the court chose a sound middle path that allowed the People a chance to rehabilitate their case to some extent, yet fully protected both defendant’s right to cross-examination and the jury’s authority to make informed determinations as to facts and credibility. The court required that the witness be told that he was under no obligation to speak to the prosecutor, it informed the jury that the witness had been removed so that the prosecutor could confer with him and it barred the People from introducing any details about why Edwards changed his story other than the equivocal testimony that he was frightened. The two directly contradictory statements made under oath by Edwards remained on the record for the jury’s consideration, both as a matter of credibility and as a matter of fact. Further, the court allowed the defense the opportunity to cross-examine the witness about the conference and about the change in testimony. The defense was also allowed, in summation, to urge the jury to consider whether improper coaching might have caused the change in testimony.

In light of these safeguards undertaken to preserve both the truth-seeking function of trial and defendant’s rights, we conclude that the trial court did not abuse its discretion. The dissent correctly points out that the trial court had at its disposal other means of dealing with this problem, including an in camera conference with the witness or simply leaving the People to impeach Edwards pursuant to CPL 60.35. Perhaps other Judges would have handled the matter differently, but that is not the standard of review on this appeal. The question is whether the Judge erred as a matter of law. In our view, the solution chosen here fell well within the broad scope of discretion allowed to a trial court.

Our decision today is consistent with decisions in other jurisdictions preserving the trial court’s authority to allow midtestimony conferences between the prosecution and a witness when appropriate safeguards are in place. In United States v Malik (800 F2d 143), a witness changed his testimony after a prosecutor routinely conferred with the witness during recesses without the court’s authorization. The Seventh Circuit concluded there was no error. The court found it significant that "the jury [was] advised of the conversation and heard the witness make the correction subject to cross-examination by defense counsel” (800 F2d, at 149). In United States v De Jongh (937 F2d 1), the First Circuit found no error where the prosecutor and a witness met privately between her direct testimony and cross-examination. The court noted that "the defense, the court, and the jury were fully informed of the meeting and its circumstances in ample time to assess their effect, if any, on [the witness’s] credibility” (937 F2d, at 3). Similarly, in State v Delarosa-Flores (59 Wash App 514, 799 P2d 736, review denied 116 Wash 2d 1010, 805 P2d 814), a 67-year-old rape victim was allowed to confer privately with a prosecutor after she became anxious and gave an answer on direct examination that contradicted her pretrial statements. In finding no abuse of discretion, the Washington appellate court pointed out that if improper coaching did take place during the recess, the appropriate remedy was "[s]killful cross-examination” (59 Wash App, at 517, 799 P2d, at 738). Finally, in Frierson v State (543 NE2d 669), an Indiana appellate court found it proper for a trial court to allow a conference during direct testimony after a sexual assault victim became upset on the stand. As in Delarosa-Flores, the court held that the opportunity to cross-examine protected defendant’s rights fully.

Though a trial court’s discretion is not boundless, these decisions, like Perry v Leeke and People v Enrique (supra), underscore the wisdom of leaving trial courts with broad discretion to determine when a conference is called for and when it is not. A midtestimony conference may be a strategic maneuver designed to frustrate the other side’s case, or it may be an important step toward making sure a flustered witness does not inadvertently misstate the facts. The trial court is in the best position to distinguish between the two. Its ruling necessarily turns on judgments we, as an appellate court, cannot easily make from a cold record: the apparent condition of the witness, the possible motivation of the attorney, the likelihood of undue delay, and the probability that cross-examination will be an adequate remedy. To unduly limit a trial court’s discretionary power in matters concerning trial management increases the likelihood that rigid rules will replace common sense and that the truth-seeking function of a trial will be impaired not advanced.

We have reviewed defendant’s other arguments and find them without merit.

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

Titone, J.

(dissenting). Relying on the limitations on our review power in cases involving trial court discretion, the majority has upheld a ruling permitting a prosecutor to conduct a private, midtestimony conference with a witness for the express purpose of questioning that witness about an unexpected and decidedly unfavorable turn in his testimony. In my view, however, the ruling fell well outside the permissible range of trial court discretion, since the risk of interference with the truth-seeking process was high and there were no countervailing considerations to justify this extraordinary departure from accepted courtroom practice. Accordingly, I dissent.

The majority begins its analysis with the premise that off-record midtestimony conferences with witnesses are generally permissible, subject to the trial court’s discretion. In support, the majority relies in part on Perry v Leeke (488 US 272) and People v Enrique (80 NY2d 869, affg 165 AD2d 13). However, both of those cases involved situations in which the trial court had refused to permit a conference between a defendant and defense counsel and the only question before the appellate court was whether the ruling violated any constitutional or procedural rights that the defendant may have had (see also, People v Narayan, 58 NY2d 904).

Manifestly, there is a significant difference between those cases and this one, where a midtestimony conference between a prosecutor and her witness was permitted. Unlike this situation, cases involving a midtrial conference between the defendant and defense counsel implicate the defendant’s constitutional right to the assistance of counsel (see, Perry v Leeke, supra, at 284; see also, Geders v United States, 425 US 80). Indeed, the entire focus of the analyses in Perry and Enrique was whether the trial courts’ decisions to disallow defense consultation violated that constitutional right (see also, People v Narayan, supra).

Both Perry and Enrique held only that, in the circumstances presented, the constitutional right to counsel did not obliterate the discretionary power of the trial court to forbid midtestimony conferences in order to protect the truth-seeking process. Neither case may fairly be cited for the proposition that off-the-record conferences with witnesses are generally permissible as a matter of State or Federal law.

Inasmuch as there are no New York cases affirmatively approving midtestimony conferences with nondefendant witnesses (cf., People v Gonzalez, 27 NY2d 53, 58, cert denied 400 US 996), the issue presented here should be approached as a matter of first impression. Viewed in that light, there is no particular, precedentially supported reason to treat the question as one that falls within the broad, virtually unguided discretion of the trial court, as the majority assumes. Since we are writing on a clean slate and without direct constitutional constraint, our primary focus should be on fashioning a rule that would most effectively advance the truth-seeking process.

The majority seems to proceed from the premise that mid-testimony conferences between witness and prosecutor may be helpful to that process, provided that full cross-examination to uncover any improper coaching is available. The majority’s premise, however, runs counter to the common law’s traditional mistrust of private, midtestimony consultations between witnesses and attorneys. That mistrust was recognized in Perry v Leeke (supra, at 281, 282), in which the Court stated that "[i]t is a common practice for a judge to instruct a witness not to discuss his or her testimony with third parties,” since midtestimony consultations by witnesses can impede "the truth-seeking function of the trial” in several ways, including "unethical 'coaching’.” The potential for impairment of the truth-seeking process was also recognized in People v Enrique (supra), in which it was cited as a basis for upholding a trial court decision to ban consultation between a defendant and his attorney during a luncheon recess.

Indeed, it is this very concern, i.e., that midtestimony consultations are inimical to the truth-seeking process, that has heretofore been used to rationalize most curtailments of what would otherwise be treated as a defendant’s absolute right to the advice of counsel during every stage of the proceeding (Perry v Leeke, supra; Geders v United States, supra; People v Enrique, supra). It is ironic (and more than a little troubling) that now — in a case where the defendant’s right to the assistance of counsel is not at stake and the person whose testimony was interrupted is witness for the prosecution — the Court has decided to take the position that midtestimony conferences can enhance, rather than undermine, the search for the truth.

Contrary to the view adopted by the majority, which relies heavily on decisions from other jurisdictions, I would adopt for our courts a view suggested in another out-of-State case, People v Pendleton (75 Ill App 3d 580, 595, 394 NE2d 496, 507), in which it was observed that midtestimony discussions between prosecutors and their witnesses "pose a tantalizing potential for misconduct” and thus "they are to be strictly scrutinized.” Under my view, trial courts would have some discretion to permit the suspect practice, but their discretion would be narrowly circumscribed and would be subject to review under one or more specific criteria.

The criterion that most readily comes to mind is that of necessity. Since the procedure in question is one that threatens the integrity of the truth-finding process, it should not be permitted until at least a threshold showing of need has been made. In most cases, of course, there are alternative, less perilous methods for remedying apparent reversals in a prosecution witness’s story. In situations involving recanting non-party witnesses, CPL 60.35 permits the prosecutor to impeach with certain of the witness’s prior inconsistent statements if that witness has "give[n] testimony upon a material issue of the case which tends to disprove the position of such party” (subd [1]). It is true that the case law has established a relatively stringent standard as a predicate for invoking this provision (see, e.g., People v Saez, 69 NY2d 802; People v Fitzpatrick, 40 NY2d 44). However, the difficulty of using the legislatively created procedure for challenging a witness’s eleventh-hour change of position on the record does not furnish a persuasive reason for permitting a prosecutor to cajole the witness into changing position in a private, off-record conference.

Moreover, in those rare cases where the rules for impeaching one’s own witness are genuinely too austere to fit the situation (see, State v Delarosa-Flores, 59 Wash App 514, 799 P2d 736, cited by majority opn, at 668; Frierson v State, 543 NE2d 669 [Ind], cited by majority opn, at 668) there are ordinarily other, less troubling remedies than a private, unmonitored discussion between the prosecutor and the witness. Presumably, the prosecutor can request an in camera conference in which the reasons for the witness’s change of heart can be explored in the presence of a Judge, a stenographer and even opposing counsel where appropriate (see, e.g., United States v Adams, 785 F2d 917; Kingery v State, 523 So 2d 1199 [Fla]). Since there is no attorney-client relationship and no privilege to be guarded, there is no justification for affording a conference between prosecutor and witness the same degree of privacy that is afforded when a defendant and defense counsel confer. It is the element of privacy that creates the opportunity for coaching and tampering, and, thus, courts should be directed to exercise their discretion so as to avoid unsupervised and unmonitored midtestimony colloquies unless no other practical option exists.

Viewed in light of these principles, the ruling challenged in this case can only be viewed as reversible error. When the testimony of Thomas Edwards, a critical prosecution witness, proved to be unexpectedly favorable to the defense, the trial court permitted the prosecutor to confer with her witness, in private, for the expressed purpose of affecting the substance of that witness’s testimony on a crucial point (cf., Frierson v State, 543 NE2d 669, supra [conference permitted to enable prosecutor to determine whether witness was too upset to continue]). However, apart from the prosecutor’s convenience and her partisan desire to remedy a sudden hole in her case in the most expeditious and least risky manner possible, there was no sound judicial reason — or, for that matter, any reason at all — for allowing such a drastic departure from the ordinary rules of courtroom practice. Edwards was not the prosecutor’s "client” so that he had a cognizable interest in obtaining midtestimony legal advice; nor was he a defendant with a constitutional right to the assistance of counsel. The only other possible countervailing interest, ensuring truthful testimony, could have just as readily been served through the use of less troublesome alternatives, such as an in camera inquiry in the presence of the court and counsel or even impeachment under CPL 60.35. The resort to a private conference, a practice that has long been regarded as inimical to the interests of truth finding, was clearly erroneous and cannot be condoned.

Unlike the majority, I would also reject the People’s contention that reversal is not required in cases such as this one because the danger of prejudice can be dissipated by the availability of cross-examination to determine whether the witness has been coached or otherwise influenced. While perhaps superficially appealing, the argument is ultimately disingenuous because it places an unfair and unnecessary burden on the defense.

Although cross-examination has been dubbed "the greatest legal engine ever invented for the discovery of truth” (5 Wigmore, Evidence § 1367 [Chadbourn rev 1974], cited in Perry v Leeke, supra, at 283, n 7), it is not without pitfalls for the party who wishes to use it. Every experienced trial lawyer knows that each question posed to an opponent’s witness carries a risk that the answer will be harmful in some unanticipated way. Additionally, despite the value of cross-examination for uncovering truth, there is always the possibility that a skillful or well-coached witness will be able to evade its searching light. While such pitfalls may be inevitable in our necessarily imperfect truth-finding system, it is fundamentally unfair to force the defense to assume the burdens and risks of cross-examination when it was a flaw in the People’s case that prompted resort to an unorthodox courtroom procedure.

If, as the People contend, cross-examination in the presence of the jury is the most effective method we have for ferreting out the truth, the proper solution for uncovering the truth when a prosecution witness testifies in a surprising and unfavorable way would seem to be cross-examination of that witness by the People under CPL 60.35. The People may well be unsatisfied with that option and instead prefer the more comfortable route of a private, midtestimony conference. However, if that is the case, they should not be heard to argue that the defendant should be satisfied to remedy any resulting prejudice by relying on the same right of cross-examination that they have eschewed.

Finally, I would stress my disagreement with the majority’s view that rulings of this sort cannot be challenged in our Court, a court of law, because they fall within the realm of trial court discretion. Our nisi prius courts undoubtedly enjoy a tremendous latitude in managing the courtroom and in directing the details of trial. However, that discretion is not unlimited. Rather, it must be exercised within a framework of legal rules, criteria and general principles, all of which are within this Court’s proper purview. Indeed, far from being an area that we should shun, the functions of line drawing and establishing criteria for the exercise of discretion are squarely within our responsibilities as the State’s highest court.

Where the management of the examination of witnesses is concerned, the trial court’s discretionary rulings should be informed by a concern for the integrity of the truth-seeking process. When, as here, a trial court permits a procedure that carries a clear potential for distorting the truth and there is no identifiable countervailing reason for taking that risk, the ruling cannot be upheld on the theory that it was within the permissible range of discretion. Accordingly, I would hold that the trial court in this case committed an error of law and that the resulting judgment must be reversed.

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

Order affirmed.


author: Bellacosa, J.

text:
    [635 NE2d 279, 613 NYS2d 110]
    In the Matter of Harvey O. Booth, Respondent, v Lee Clary, as Judge of the Jefferson County Court, Respondent, and James T. King, as Jefferson County District Attorney, Appellant. In the Matter of Leslie Bridgewater, Respondent, v Lee Clary, as Judge of the Jefferson County Court, Respondent, and James T. King, as Jefferson County District Attorney, Appellant.
    Argued March 24, 1994;
    decided May 12, 1994

      POINTS OF COUNSEL

      James T. King, District Attorney of Jefferson County, Water-town (Jane G. LaRock of counsel), appellant pro se in the first and second above-entitled proceedings.
    I. A proceeding under the Uniform Code of Military Justice is not a trial within the meaning of the Criminal Procedure Law. (People v Wendel, 59 Misc 354; United States v Mariea, 795 F2d 1094; People v Farrar, 52 NY2d 302; Abbate v United States, 359 US 187; United States v Wheeler, 435 US 313; Bartkus v Illinois, 359 US 121.) II. To hold that defendants may not be tried under Jefferson County indictments because of military proceedings results in a violation of the Equal Protection Clause of the Fourteenth Amendment and article I, § 2 of the State Constitution. (Matter of Feimer v Ward, 127 Misc 2d 853; Neale v Hayduk, 35 NY2d 182; Matter of Liss [Ross], 80 AD2d 716; People v Carter, 86 AD2d 451; United States v Mariea, 795 F2d 1094.)

      John W. Hallett, Public Defender of Jefferson County, Watertown, for petitioners-respondents in the first and second above-entitled proceedings.
    I. A court-martial proceeding constitutes a previous prosecution as envisioned by CPL 40.30 which triggers the double jeopardy protection of the statute. (Carter v Roberts, 177 US 496; Grafton v United States, 206 US 333; People v Benjamin, 22 NY2d 723; People v Lee, 35 AD2d 542; People v Williams, 78 AD2d 643; Jennings v Markley, 186 F Supp 611.) II. Appellant’s contention of unequal treatment of military personnel by CPL 40.30 does not violate the Equal Protection Clause of the State Constitution. (People v Rivera, 60 NY2d 110; People v P. J Video, 68 NY2d 296; Matter of Klein v Murtagh, 44 AD2d 465; People v Lo Cicero, 14 NY2d 374.)
   OPINION OF THE COURT

Bellacosa, J.

The District Attorney of Jefferson County appeals in two cases seeking to overturn the grant of writs of prohibition preventing his office from prosecuting serious crimes committed by two off-duty soldiers off military property. The petitioners soldiers were tried and convicted by a general court-martial for the identical conduct for which they were also indicted in Jefferson County. The issue in each case is whether a military tribunal is a court "of any jurisdiction within the United States” within the meaning of CPL 40.30 (1). If so, New York’s statutory double jeopardy protection bars the successive prosecutions at issue in the discrete cases. We conclude that the courts-martial constitute a statutorily intended "court” and must be deemed previous prosecutions for purposes of the statutory bar of subsequent prosecutions. The Appellate Division judgments barring the prosecutions under the indictments should be affirmed.

In August 1991, the United States Army charged petitioner, Sergeant Booth, with rape, carnal knowledge, sodomy, indecent assault in violation of articles 120, 125 and 134 of the Uniform Code of Military Justice (see, 10 USC § 920 [a], [b]; §§ 925, 934), and giving alcoholic beverages to a minor in violation of Penal Law § 260.20 (4). The victim was Booth’s 13-year-old niece. The incident occurred on July 6, 1991 in the Village of Carthage, New York. Booth, represented by counsel, waived trial by military jury. Following a trial by a military Judge on January 12, January 30 and March 10, 1992, Booth was convicted of indecent assault in violation of article 134 of the Uniform Code of Military Justice and sentenced on March 10, 1992 to confinement at hard labor for two years at Fort Knox, Kentucky, reduced in rank, discharged from the service with a bad conduct discharge and ordered to forfeit pay. An Army Court of Military Review approved the findings and sentence on December 9, 1992, except for the bad conduct discharge.

In December 1991, the Jefferson County Grand Jury indicted Booth for rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, endangering the welfare of a child and incest. The charges related to the same conduct for which Booth was tried and court-martialled. Booth sought dismissal of the indictment on statutory double jeopardy grounds (see, CPL 40.20, 40.30). County Court denied the motion and the instant prohibition proceeding was commenced in the Appellate Division, which granted the writ. This Court granted leave to appeal.

In the second matter before this Court, also by its grant of leave to appeal, petitioner Bridgewater, a former sergeant in the United States Army, was indicted by a Jefferson County Grand Jury. Bridgewater was charged with two counts of murder committed on September 23, 1991. The victim was his two-month-old son. During the pendency of the indictment, Bridgewater gave testimony and entered a guilty plea before a military tribunal, which found him guilty of involuntary manslaughter by culpable negligence in violation of article 119 of the Uniform Code of Military Justice (10 USC § 919). He was sentenced to one-year imprisonment. On December 16, 1992, Bridgewater moved to dismiss the Jefferson County indictment on statutory double jeopardy grounds. County Court denied the motion. The instant prohibition proceeding was commenced in the Appellate Division, which granted the writ.

Appellant District Attorney argues that a general military court-martial does not bar a subsequent State criminal action because the military tribunal is not a court and that proceeding does not constitute a "trial.” The argument urges us to conclude that the Uniform Code of Military Justice is merely a disciplinary code with different purposes and goals from the State Penal Law. The prosecutor also claims a State equal protection of the laws violation, justifying the prosecutions irrespective of the statutory bar arising from the statute. She does not dispute the fact that the offenses for which the soldiers were tried by court-martial stem from the same criminal events for which they were indicted.

The right not to be placed in jeopardy more than once for the same offense is a vital safeguard and "a fundamental ideal in our constitutional heritage” (Benton v Maryland, 395 US 784, 794; see also, People v Abbamonte, 43 NY2d 74, 82). The dual constitutional protection against double jeopardy, however, is not in issue in these cases (see, US Const 5th, 14th Amends; NY Const, art I, § 6; Blockburger v United States, 284 US 299). Successive State and Federal prosecutions based on the same criminal transactions or overt acts, as occurred here, might not offend constitutional precepts (see, United States v Wheeler, 435 US 313; Bartkus v Illinois, 359 US 121).

In these cases, however, the procedural framework requires that we construe New York’s additional and broader statutory double jeopardy protections (see, CPL art 40; Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560, 565). State prosecutions are more restricted under the expansive statutory double jeopardy protections found in CPL 40.20 and 40.30, which offer more protection than the "dual sovereign” doctrine would tolerate (see, People v Abbamonte, 43 NY2d 74, 81, supra; Matter of Abraham v Justices of N Y. Supreme Ct. of Bronx County, supra).

These statutory double jeopardy provisions, whose application to this novel context we must decide, provide the more intricate details against individuals being "twice prosecuted for the same offense” (CPL 40.20 [1]). A "same offense” crime must include "essentially the same statutory elements or one must be a lesser included offense of the other” (Matter of Corbin v Hillery, 74 NY2d 279, 289, affd sub nom. Grady v Corbin, 495 US 508). CPL 40.30 (1) defines a previous prosecution as follows:

"[A] person 'is prosecuted’ for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either:
"(a) Terminates in a conviction upon a plea of guilty; or
"(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn” (emphasis added).

Some guidance is provided by our recognition of the judicial nature of military tribunals in our second felony sentencing context. We have held that a court-martial adjudication may serve as a prior felony for purposes of second felony offender sentencing (see, People v Benjamin, 22 NY2d 723, mot to amend remittitur granted 23 NY2d 697; see also, People v Roman, 176 AD2d 568, lv denied 79 NY2d 863; People v Williams, 78 AD2d 643).

Additionally, under the comprehensive protection provided by CPL article 40, we have previously held that if the State prosecution was preceded by a Federal prosecution in a Federal District Court, the New York prosecution is blocked (see, CPL 40.20 [1]; 40.30 [1]; Matter of Wiley v Altman, 52 NY2d 410; People v Vera, 47 NY2d 825; People v Abbamonte, 43 NY2d 74, supra). Like a Federal District Court, a military tribunal exerts all its "powers under and by authority of the same government — that of the United States” (Grafton v United, States, 206 US 333, 355; see, US Const, art I, § 8; art II, §2).

The United States Supreme Court complements these two lines of authority with its guidance for our statutory construction task by its recognition that a general court-martial is a prior prosecution prohibiting a subsequent indictment by the United States for the same offense as violative of the Double Jeopardy Clause (see, US Const 5th Amend; see also, Grafton v United States, supra). Thus, for Federal constitutional double jeopardy purposes, a military court-martial is treated as the equivalent of a Federal District Court judgment (see, Gosa v Mayden, 413 US 665; United States v Wheeler, 545 F2d 1255; see also, United States v Walker, 552 F2d 566, 567, n 2 ["(a) conviction in the civilian court will preclude a subsequent court martial conviction and vice versa”]).

Grafton and the principle it embodies thus provide a cogent catalyst with the other authorities. The specific power exercised by military tribunals is bestowed by Congress pursuant to its powers under article I of the Federal Constitution. The fact that the prior criminal complaint there arose out of a violation and prosecution under military law, instead of common law or statutory penal prohibition, did not render the military prosecution any less a judicial exercise under the sovereign power of the United States.

We conclude, therefore, that in the absence of any statutory exclusion under New York’s CPL article 40, a court-martial tribunal is a court within the meaning of CPL 40.30 (1), and the prior prosecutions in each case bar the appellant District Attorney from proceeding under the indictments for the identical crimes as violations of New York’s Penal Law.

Finally, we note that notwithstanding New York’s expansive statutory double jeopardy protection, greater communication and cooperation between the District Attorney and military authorities might have obviated these procedural difficulties and circumstances.

Accordingly, the judgment of the Appellate Division in each case, dismissing the indictments, should be affirmed, without costs.

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

In each case: Judgment affirmed, without costs.


author: Simons, J.

text:
    [635 NE2d 282, 613 NYS2d 113]
    In the Matter of Prudential Property and Casualty Company, Respondent, v Brian Szeli, Appellant.
    Argued April 28, 1994;
    decided June 9, 1994

      POINTS OF COUNSEL

      Finkelstein, Levine, Gittelsohn and Tetenbaum, Newburgh (George A. Kohl, 2nd, of counsel), for appellant.
    I. The amount of bodily injury coverage provided by the single liability limit of the tortfeasor’s policy, which provides coverage for both bodily injury and property damage claims, is necessarily less than the bodily injury liability limits of the claimant’s policy. (Matter of Commercial Union Ins. Co. [Raymond], 172 AD2d 988; Manfredo v Centennial Ins. Co., 124 AD2d 979; Matter of Liberty Mut. Ins. Co. v Balaran, 163 AD2d 314; Passaro v Metropolitan Prop. & Liab. Ins. Co., 128 Misc 2d 21, 124 AD2d 647; Matter of Michigan Mut. Ins. Co. [Miller], 170 AD2d 102.) II. A claimant is entitled to underinsurance coverage if his total accident bodily injury limit is greater than the stated limit of the tortfeasor’s single limit policy. (Cantanucci v Reliance Ins. Co., 43 AD2d 622; Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663; Allstate Ins. Co. v Klock Oil Co., 73 AD2d 486; Little v Blue Cross, 72 AD2d 200; Hollander v Nationwide Mut. Ins. Co., 60 AD2d 380; Matter of Automobile Ins. Co. v Stillway, 165 AD2d 572; Matter of Fireman’s Fund Ins. Co. v Freda, 156 AD2d 364; Di Stasi v Nationwide Mut. Ins. Co., 132 AD2d 305; Nationwide Mut. Ins. Co. v Figliomeni, 147 AD2d 942.) III. Both public policy and the rules of construing insurance policies against the insurer mandate that this Court hold that the tortfeasor was underinsured at the time of the accident. A contrary holding would frustrate the reasonable expectations of the consumer policyholder that purchases underinsurance protection. (Carlino v Lumbermens Mut. Cas. Co., 136 Misc 2d 130; Di Stasi v Nationwide Mut. Ins. Co., 132 AD2d 305.)

      Shayne, Dachs, Stanisci, Corker & Sauer, Mineóla (Jonathan A. Dachs of counsel), and William J. Cariello, Garden City, for respondent.
    I. The Court below correctly held that the tortfeasor was not "underinsured” and that appellant’s underinsured motorist coverage was, therefore, not triggered. (Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951; Matter of Aetna Cas. & Sur. Co. v Schulman, 162 AD2d 450; Matter of Eagle Ins. Co. v Silva, 147 AD2d 641; Matter of Commercial Union Ins. Co. [Raymond], 172 AD2d 988; Matter of Allstate Ins. Co. v Hager, 151 Misc 2d 322; Matter of Liberty Mut. Ins. Co. v Balaran, 163 AD2d 314; Passaro v Metropolitan Prop. & Liab. Ins. Co., 128 Misc 2d 21, 124 AD2d 647; Manfredo v Centennial Ins. Co., 124 AD2d 979; Frank Corp. v Federal Ins. Co., 70 NY2d 966; Zuckerman v City of New York, 49 NY2d 557.) II. Even respondent-appellant’s argument regarding the doctrine of contra proferentum results in nonapplicability of his under-insured motorist coverage and mandates the affirmance of the decision and order of the Court below. (Matter of Commercial Union Ins. Co. [Raymond], 172 AD2d 988; Matter of Allstate

      Ins. Co. v Hager, 151 Misc 2d 322; Matter of Liberty Mut. Ins. Co. v Balaran, 163 AD2d 314; Passaro v Metropolitan Prop. & Liab. Ins. Co., 128 Misc 2d 21; Matter of Valente v Prudential Prop. & Cas. Ins. Co., 77 NY2d 894; Matter of Michigan Mut. Ins. Co. [Miller], 170 AD2d 102.) III. The decision and order of the Court below reversing the judgment of the trial court is consistent with the legislative intent behind the underinsured motorist coverage scheme and avoids potentially devastating long-term effects on underinsured motorist claimants throughout the State. (Matter of Liberty Mut. Ins. Co. v Balaran, 163 AD2d 314; Matter of Hanover Ins. Co. [Saint Louis] 119 AD2d 529; Drapak v Aetna Cas. & Sur. Co., 137 Misc 2d 156.)
   OPINION OF THE COURT

Simons, J.

Under Insurance Law § 3420 (f) (2), an insured’s supplementary underinsured motorist coverage is triggered when the limit of the insured’s bodily injury liability coverage is greater than the same coverage in the tortfeasor’s policy. On this appeal, we are asked to determine whether the tortfeasor in a multiple-victim automobile accident should be deemed underinsured where he has a "single limit” policy providing a $300,000 limit per accident for both bodily injury and property damage liability, while the insured has a "split limit” policy containing a bodily injury limit of $100,000 per person and $300,000 per accident and a separate limit for property damage liability. For the reasons that follow, we conclude that the tortfeasor should be deemed underinsured, and arbitration of the underinsurance claim should proceed.

I.

This litigation arises from an accident in which respondent Brian Szeli and two other teenagers were struck and seriously injured by a car as they walked along the road. The tortfeasor driver’s automobile insurance policy contained a single liability limit of $300,000 per accident for both bodily injury and property damage. After negotiations, his insurer paid the full policy limit, allocating $95,000 to Szeli and splitting the remaining $205,000 between his companions. All sums were paid to compensate bodily injury claims.

Szeli, asserting that his damages exceeded the settlement amount received, sought coverage under the supplementary uninsured/underinsured motorist (SUM) endorsement contained in his father’s automobile insurance policy with petitioner Prudential Property and Casualty Co. As set forth in Insurance Law § 3420 (i) (2) and in the policy, SUM coverage is triggered when the tortfeasor’s bodily injury liability limit is less than the bodily injury liability limit in the insured’s policy. The Szeli policy with Prudential contained a bodily injury limit of $100,000 per person and $300,000 per accident. Szeli asserted that this coverage was greater than the tortfeasor’s $300,000 single limit coverage for both property damage and bodily injury and therefore the tortfeasor was an underinsured motorist under the terms of the policy and Insurance Law § 3420 (f) (2).

When Prudential denied coverage Szeli sought arbitration. Prudential then instituted this proceeding pursuant to CPLR article 75 seeking a permanent stay. Supreme Court denied the petition and directed the parties to proceed to arbitration. The Appellate Division reversed, holding that the $300,000 available in the tortfeasor’s policy was equal to or greater than the bodily injury liability coverage in the Prudential policy, whether the $100,000 per person limit or the $300,000 per accident limit was employed in the comparison. We granted leave to appeal and now reverse.

II.

Insurance Law § 3420 (f) (2) provides that supplementary uninsured/underinsured coverage, when purchased at the option of the insured, is available "if the limits of liability under all bodily injury liability bonds and insurance policies of another motor vehicle liable for damages are in a lesser amount than the bodily injury liability insurance limits of coverage” provided by the insured’s policy. While the comparison called for would appear to be straightforward — the insured’s bodily injury coverage versus the tortfeasor’s — the matter becomes less clear, and is not addressed directly by the statute, when the two policies to be compared employ different limit structures. Thus, the appeal before us raises two related issues. First, when there are multiple victims in an accident but a single claimant under a policy providing SUM coverage, should the insured’s bodily injury limit for purposes of the comparison be the per person amount or the per accident amount? Second, for purposes of the comparison, should the tortfeasor’s entire single limit be considered his bodily injury limit even though property damage coverage is also contained in the limit?

Insurance Law § 3420 (f) (2) was enacted to allow an insured to "obtain the same level of protection for himself and his passengers which he purchased to protect himself against liability to others” (State Executive Dept Mem, 1977 McKinney’s Session Laws of NY, at 2446). By its terms, the statute calls for a facial comparison of the policy limits without reduction from the judgment of other claims arising from the accident (see, Matter of Commercial Union Ins. Co. [Raymond], 172 AD2d 988, 990, lv denied 78 NY2d 858, supra; Manfredo v Centennial Ins. Co., 124 AD2d 979).*

Prudential argues that the facial comparison here is clear: the tortfeasor has $300,000 available; Szeli has, at most, the $300,000 limit allowed per accident. Because Szeli’s policy does not provide greater coverage, the tortfeasor is not under-insured. In any event, Prudential argues, it is Szeli’s limit of $100,000 per person — not the $300,000 per accident limit— that should be used in the comparison. Though three persons were injured in the accident, only one is claiming under the Prudential policy. Thus, Prudential reasons, the logical comparison is the per person limit in each policy ($300,000 in the tortfeasor’s versus $100,000 in the insured’s).

Szeli responds that Prudential’s facial comparison is flawed by its failure to take into account the fact that property damage liability is also covered by the tortfeasor’s $300,000 single limit. Under Vehicle and Traffic Law § 311, a New York motorist is required to have at least $5,000 in property damage liability coverage. Because the tortfeasor’s policy meets the statutory requirements only if it is construed as providing the property liability minimum, Szeli contends that at most the tortfeasor has $295,000 available for bodily injury coverage. Second, Szeli argues that in an accident involving more than one victim, it is the per accident limit, not the per person limit, that is relevant. Thus, Szeli concludes, his policy provides $300,000 in bodily injury coverage, the tortfeasor’s policy contains no more than $295,000 in coverage, and SUM coverage is properly invoked.

III.

Because Insurance Law § 3420 (f) (2) itself does not clearly resolve the issue, it is helpful to refer back to the essential purpose of the statute: to provide the insured with the same level of protection he or she would provide to others were the insured a tortfeasor in a bodily injury accident. The necessary analytical step, then, is to place the insured in the shoes of the tortfeasor and ask whether the insured would have greater bodily injury coverage under the circumstances than the tortfeasor actually has. Under the circumstances here, a multiple-victim accident, Szeli’s policy with Prudential would provide $300,000 in coverage for bodily injuries plus an additional amount for any property damage. The tortfeasor’s policy, by contrast, provides $300,000 for bodily injuries less any amount payable for property damage. Viewed in this light, we agree with the insured here and Supreme Court below that the tortfeasor is underinsured for purposes of Insurance Law § 3420 (f) (2).

Concededly, in circumstances where there is no property damage, as here, the tortfeasor’s single limit policy provides coverage equivalent to that of the Szeli policy with Prudential. However, as Prudential acknowledges, the determination of underinsurance coverage under Insurance Law § 3420 (f) (2) is to be made facially from the policies and not by reference to the particular claims actually arising from any given accident. The tortfeasor’s policy is facially valid under New York law only if it is construed to contain the required minimum amount of property damage coverage. While we need not decide precisely how much of the tortfeasor’s coverage is properly assignable to property damage liability, there can be no question that a policy facially offering $300,000 exclusively for bodily injury liability insurance provides greater bodily injury coverage than one facially offering $300,000 divided between bodily injury and property damage.

Similarly, we reject Prudential’s assertion that the per person limit ($100,000) in its policy rather than the per accident limit ($300,000) should be employed in the underinsurance comparison when there is a multiple-victim accident but only one underinsurance claimant (accord, Heirs of Leetz v Arnica Mut. Ins. Co., 839 P2d 511, 513 [Colo App]; Staub v Hanover Ins. Co., 251 NJ Super 66, 68, 596 A2d 1096, 1097). Under Prudential’s view, the bodily injury limit to be employed in the comparison would turn on the number of insureds making SUM claims irrespective of the number of persons injured in the accident, even though it is the number of injured persons that is relevant to determining the applicable limit under the insured’s liability coverage ($100,000 per person and $300,000 per accident). Prudential’s approach appears to confuse two separate operations: the determination of whether underinsurance is available in the first instance, on the one hand, and, on the other, the determination of the limit to be applied under the underinsurance endorsement once SUM coverage has in fact been triggered. While the number of insureds making claims will of course be relevant (in a split limit SUM endorsement) to the latter determination —i.e., the limit of liability once SUM coverage is triggered— the determination of whether SUM coverage is available at all is made without reference to the terms of the SUM endorsement. Instead, that determination requires a comparison of each policy’s bodily injury liability coverage as it in fact operates under the policy terms applicable to that particular coverage. Only by doing that comparison is it possible to make the required determination: whether the tortfeasor has less bodily injury liability coverage than the insured.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition to stay arbitration denied.

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

Order reversed, etc.

      . [3] The limit to be used in the comparison is the insured’s bodily injury limit, not the limit contained in the insured’s SUM endorsement (see, Matter of Automobile Ins. Co. v Stillway, 165 AD2d 572, 575; Matter of Fireman’s Fund Ins. Co. v Freda, 156 AD2d 364, 365; Nationwide Mut. Ins. Co. v Figliomeni, 147 AD2d 942, 942-943; Di Stasi v Nationwide Mut. Ins. Co., 132 AD2d 305, 310; see also, Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951). Decisions to the contrary should not be followed (see, e.g., Matter

        of Commercial Union Ins. Co. [Raymond], 172 AD2d 988, lv denied 78 NY2d 858).

      . Because the insurance contract here was entered into prior to the effective date of 11 NYCRR 60-2.3 and the accident also occurred prior to that date, we have no opportunity to address what effect, if any, that regulatory provision would have on the availability of underinsurance coverage where other claims have been paid.


author: Per Curiam.

text:
    [635 NE2d 286, 613 NYS2d 117]
    In the Matter of David Schiff, a Justice of the Village Court of Liberty, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued April 26, 1994;
    decided June 9, 1994

      POINTS OF COUNSEL

      Robert J. Hilpert, Croton-on-Hudson, for petitioner.
    I. The Commission failed in its constitutional and statutory duty to investigate the charges before it. (Matter of Nicholson v State Commn. on Judicial Conduct, 50 NY2d 597; Carlisle v Bennett, 268 NY 212; Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; Matter of La Belle Creole Intl, v Attorney-Gen. of State of N. Y., 10 NY2d 192; Matter of Spector v State Commn. on Judicial Conduct, 47 NY2d 462; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Dixon v State Commn. on Judicial Conduct, 47 NY2d 523; Matter of Lonschein, 50 NY2d 569; Matter of Rogers v State Commn. on Judicial Conduct, 51 NY2d 224; Matter of Shilling, 51 NY2d 397.) II. The Commission failed to sustain its burden of proof on the three charges alleged as a matter of fact and of law and had such burden been sustained the sanction recommended is not supported by case law. (Matter of Cerbone, 60 NY2d 680; Matter of Greenfield, 76 NY2d 293; Matter of Rogers v State Commn. on Judicial Conduct, 51 NY2d 224; Matter of Rater, 69 NY2d 208.) III. At every stage of this proceeding, Judge Schiff was denied his statutorily guaranteed right to counsel by reason of the ineffective assistance of his counsel. (Strickland v Washington, 466 US 668; Matter of Cunningham, 57 NY2d 270; Matter of Steinberg, 51 NY2d 74; Matter of Shilling, 51 NY2d 397.)

      Gerald Stern, New York City, Cathleen S. Cenci and Jean M. Savanyu for respondent.
    I. Petitioner has engaged in conduct which demonstrates his lack of fitness for judicial office. (Matter of Agresta, 64 NY2d 327; Matter of Aldrich v State Commn. on Judicial Conduct, 58 NY2d 279; Matter of Esworthy, 77 NY2d 280; Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d 286; Matter of Levine, 74 NY2d 294; Matter of Rater, 69 NY2d 208; Matter of Cooley, 53 NY2d 64; Matter of Greenfield, 76 NY2d 293; Matter of Rogers v State Commn. on Judicial Conduct, 51 NY2d 224.) II. Neither the investigation nor the determination violated petitioner’s due process rights. (Matter of Gelfand, 70 NY2d 211.) III. Petitioner was not denied the effective assistance of counsel. (Matter of Sasson v Commissioner of Educ., 127 AD2d 875; People v Baldi, 54 NY2d 137; People v Rivera, 71 NY2d 705; People v Hewlett, 71 NY2d 841.)
   OPINION OF THE COURT

Per Curiam.

In this proceeding we are called upon to review a determination of the State Commission on Judicial Conduct removing from office petitioner, a Justice of the Liberty Village Court, Sullivan County, after finding that all three discrete charges of misconduct in the formal complaint were sustained (see, NY Const, art VI, § 22; Judiciary Law § 44). The first charge accused petitioner of making an inappropriate and derogatory remark about certain ethnic and racial groups during a recess in proceedings in his court. The second charge was essentially that petitioner conveyed the appearance that he granted a civil motion pending before him in retaliation against an attorney-Town Justice, whose law firm represented one of the litigants in the civil action, for having decided a traffic case against petitioner’s interests. The third charge concerned petitioner’s failure to maintain adequate records and dockets of dispositions of criminal cases in his court, resulting in his failure to report and remit fines and surcharges to the State Comptroller. After a hearing, the Referee sustained Charges II and III, but not Charge I. The majority of Commission members determined that all three charges had been sustained and that the appropriate sanction was petitioner’s removal from office. After a de nova review of the record, we find that the Commission’s determination sustaining all three charges is supported by the preponderance of the evidence, and that the sanction of removal is warranted.

Petitioner contends that the Commission failed to sustain its burden of proof as to all three charges and that the sanction of removal is not warranted. With respect to Charge I, the Commission found and the testimony established that during a break in proceedings before his court, petitioner stated — in the presence of a Legal Aid attorney and legal interns — that he recalled a time when it was safe for young women to walk the streets "before the blacks and Puerto Ricans moved here”. Petitioner in his testimony admitted awareness of a pending controversy between that Legal Aid attorney and another Judge who was a good friend of petitioner’s, and that he believed the Legal Aid attorney at whom the remark was directed was Hispanic. When an Assistant District Attorney who had overheard the remark privately commented to petitioner that the remark was inappropriate and that the controversy had taken a toll on the attorney, petitioner replied, "I know. That’s why I said it”. The Commission was entitled to reject petitioner’s less offensive version of his remark and his protestations that it was not intended to be derogatory. Petitioner admitted it was directed at the Legal Aid attorney and admitted telling the Assistant District Attorney it was made to annoy that attorney.

We are in complete agreement with the Commission’s determination that a deliberate and calculated remark of this nature, even if isolated, "casts doubt on [petitioner’s] ability to fairly judge all cases before him”, and seriously violated the governing rules related to his duty to uphold the integrity and impartiality of the judiciary and to avoid even the appearance of impropriety (see, Code of Judicial Conduct Canons 1, 2 [A]; 3 [A] [3] [22 NYCRR 100.1, 100.2 (a); 100.3 (a) (3)]).

The second charge arose out of petitioner’s handling of a plaintiff’s motion for judgment in a civil case pending before him. The defendant was represented by a law firm, one of whose partners was a local Town Court Justice. While that motion was pending, petitioner learned that that Town Court Justice had dismissed traffic charges filed against the driver of a car that had been involved in an auto accident with petitioner. When petitioner was told of the dismissal, he remarked to the arresting officer — referring to that Justice — "It’s a wheel. It goes around, and maybe someday I can do the same for him”. Petitioner admitted making this statement. Petitioner’s innocent explanation for that remark was rightfully rejected by the Commission. Petitioner told an Assistant District Attorney how angry and upset he was about that Justice’s ruling, using expletives, and stating he was politically more powerful. Further, his Court Clerk testified to overhearing petitioner tell an attorney he was so angry about the ruling that he intended to grant the plaintiff’s motion for judgment in the pending civil case because the defendant was represented by that Justice’s law firm. Petitioner thereafter granted the plaintiff judgment.

Whether petitioner actually decided the plaintiff’s motion on the merits in that case — as he contends — is largely irrelevant to the charge, because the harm inured when he indicated he would use his judicial powers to satisfy a personal vendetta, a classic instance in which "an appearance of such impropriety is no less to be condemned than is the impropriety itself’ (see, Matter of Spector v State Comma, on Judicial Conduct, 47 NY2d 462, 466; see also, Matter of Cunningham, 57 NY2d 270, 274-275). Petitioner created the impression that he was using his judicial office to retaliate, and thus failed to avoid the appearance of impropriety and to conduct himself in a manner that promotes public confidence in the impartiality and integrity of the judiciary (see, Code of Judicial Conduct Canons 1, 2 [A]; 3 [22 NYCRR 100.1, 100.2 (a); 100.3]).

As to Charge III, there is no dispute that over a two-year period petitioner committed judicial misconduct by failing to maintain adequate records and dockets of dispositions of over 600 criminal cases in his court, and failed to timely remit or report to the State Comptroller fines and surcharges, resulting in an unidentified surplus in his court account of over $22,000, despite repeated reminders, in violation of applicable rules (see, UJCA 2020, 2021 [1]; Village Law § 4-410; Vehicle and Traffic Law § 1803; see also, Code of Judicial Conduct Canons 1, 2 [A]; 3 [B] [1], [2] [22 NYCRR 100.1, 100.2 (a); 100.3 (b) (1), (2)]; Matter of Lenney, 71 NY2d 456; Matter of Petrie v State Commn. on Judicial Conduct, 54 NY2d 807; Matter of Cooley, 53 NY2d 64). The Commission’s reference to petitioner’s lack of understanding of rudimentary principles of law such as the difference between a conviction and a dismissal was supported by petitioner’s own testimony and did not constitute a finding of uncharged misconduct. Rather, it was used to explain and substantiate the petitioner’s conduct in the third charge of the formal complaint.

Petitioner’s remaining points are equally unpersuasive. There is nothing in the record to support his claim that the Commission violated a duty to conduct a fair investigation of the charges by failing to contact or call certain potentially exculpatory witnesses regarding Charges II and III. Any such objection should have been brought before the Commission in the first instance, so that its staff would have had the opportunity to explain or rebut it. Thus, we cannot consider the effect on the Commission’s determination had petitioner’s accusation of a biased investigation been substantiated (see, Judiciary Law § 44 [4] [Commission’s duty to disclose exculpatory evidentiary data]; Matter of Benjamin, 77 NY2d 296). Also, assuming petitioner was guaranteed the right to effective assistance of counsel in a proceeding which might result in his removal from judicial office (but see, Matter of Sasson v Commissioner of Educ., 127 AD2d 875, 876), we find he received effective representation and that his contentions to the contrary relate only to his attorneys’ strategies, which would not provide a basis for reversal even in a criminal case.

Finally, in view of the cumulative, serious judicial misconduct established here, we find that removal is supported by the record and is not excessive.

Accordingly, the determined sanction of removal should be accepted, without costs, and petitioner should be removed from his office of Justice of the Liberty Village Court.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur in Per Curiam opinion; Judge Ciparick taking no part.

Determined sanction accepted, etc.

       While the complaint charged petitioner with violating the nonexistent UJCA 2020 (1), we find that it was clear to petitioner during these proceedings that the reference was to section 2021 (l)’s remittal of funds requirements, and that there was no due process denial from this typographical error.


text:
    [635 NE2d 289, 613 NYS2d 120]
    In the Matter of Ilya Gotlib, Respondent, v Lia Ratsutsky, Appellant. Lia Ratsutsky, Appellant, v Ilya Gotlib, Respondent.
    Argued May 3, 1994;
    decided June 14, 1994

      POINTS OF COUNSEL

      Bressler Amery & Ross, New York City (David H. Pikus and Martin I. Shelton of counsel), for appellant in the above-entitled proceeding and action.
    I. Summary judgment was properly denied by the Supreme Court on public policy grounds. (Weiss v Garfield, 21 AD2d 156; People ex rel. Foussier v Uzielli, 23 AD2d 260, 16 NY2d 1057; Greschler v Greschler, 51 NY2d 368; Tamimi v Tamimi, 38 AD2d 197; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Mast, Foos & Co. v Stover Mfg. Co., 177 US 485; Williams v North Carolina, 317 US 287; Russian Socialist Federated Soviet Republic v Cibrario, 235 NY 255; Arpels v Arpels, 8 NY2d 339.) II. Respondent should be estopped from enforcing the Soviet divorce decree on the basis of his undisputed actions. (Rosenthal v Reliance Ins. Co., 25 AD2d 860, 19 NY2d 712; Levy v Louisiana, 391 US 68; Labine v Vincent, 401 US 532; Matter of Shan F. v Francis F., 88 Misc 2d 165, revd on other grounds sub nom. Matter of Ferrer v Ferrer, 58 AD2d 529.)

      Raymond P. Berberian, Kew Gardens, for respondent in the above-entitled proceeding and action.
    I. The Court below properly determined that the Soviet bilateral decree of divorce was entitled to comity. (Mack v Arnold Gregory Mem. Hosp., 90 AD2d 969; Mahar v Mahar, 111 AD2d 501; Laye v Shepard, 48 Misc 2d 478, 25 AD2d 498; Killian v Metropolitan Life Ins. Co., 225 App Div 781, 251 NY 44; Ronson v Ronson, 58 AD2d 987; Jones v Sumo Container Sta., 186 AD2d 539.) II. A party is estopped from attacking the validity of a foreign bilateral divorce decree when that party participated in its fraudulent procurement. (Peckham v Peckham, 97 AD2d 578; Roman v Vargas, 182 AD2d 543; Mack v Arnold Gregory Mem. Hosp., 90 AD2d 969; Goldstein v Town of Liberty, 189 AD2d 989; Harrison v Harrison, 134 AD2d 567; Rakowski v Rakowski, 109 AD2d 1; Faco-Rodi v Faco-Rodi, 139 Misc 2d 628; Sherrer v Sherrer, 334 US 343; Matter of Satulsky, 150 AD2d 193; Matter of Silver v Silver, 36 NY2d 324.) III. Acts of cohabitation in New York State years after a bilateral divorce do not give rise to a common-law marriage. (Matter of Watts, 31 NY2d 491; Matter of Farber v U. S. Trucking Corp., 26 NY2d 44; Jennings v Hurt, 160 AD2d 576, 76 NY2d 870; Cucalon v State of New York, 103 Misc 2d 808; People v Allen, 27 NY2d 108; Matter of Merritt v Chevrolet Tonawanda Div., 50 AD2d 1018.) IV. The Court below properly terminated the pendente lite child support award as the Court below determined that there was no "matrimonial action” pending and determined that appellant could not demonstrate a reasonable probability of success. (Lavi v Lavi, 103 AD2d 400; Cross v Cross, 112 AD2d 62; Greene v Greene, 90 AD2d 533; Matter of Nicholson, 180 AD2d 685; Lansford v Lansford, 96 AD2d 832; Merrick v Merrick, 56 AD2d 827; Pierot v Pierot, 49 AD2d 838; Ramirez De Bouhana v Bouhana, 112 Misc 2d 314; Kiss v Kiss, 132 Misc 2d 368.) V. Appellant’s causes of action for divorce and necessaries are dismissable on other grounds including appellant’s failure to assert meritorious supporting facts in opposition to the summary judgment motion. (Koppers Co. v Empire Bituminous Prods., 35 AD2d 906, 30 NY2d 609; Tutak v Tutak, 123 AD2d 758; Baron v Jeffer, 131 AD2d 411; Lavi v Lavi, 103 AD2d 400; Elson v Elson, 149 AD2d 141; Geiser v Geiser, 115 AD2d 373; Kiss v Kiss, 132 Misc 2d 368; Berman v Berman, 111 AD2d 141; Schine v Schine, 31 NY2d 113; Phillips v Phillips, 70 AD2d 30.)
   OPINION OF THE COURT

Bellacosa, J.

At the heart of this appeal surrounding a multipronged dispute between Lia Ratsutsky and Ilya Gotlib is her suit for divorce from him under New York law. Since she concedes that she was already divorced from him in 1976 in Odessa, The Ukraine, under then-Soviet law, she faces a formidable obstacle to obtaining such relief under comity principles respected and applied under New York jurisprudence.

The parties were married in the USSR in 1976 and divorced within a year. The wife initiated that divorce, appeared in court with her husband, and secured the sought-after bilateral divorce decree. She never renounced or disclaimed the validity and effect of that divorce until she commenced this New York litigation, some 14 years later. She and her former husband did eventually emigrate separately, as did her extended family, in the late 1970’s. During part of the 1980’s, she and her former husband lived together in Brooklyn, and while they did not marry or remarry, a daughter was born to them in 1980. The parties filed joint tax returns for the periods when they were together. Eventually, they went their separate ways and this litigation ensued. Though the litigation involves visitation and support issues, only the divorce aspect is before this Court on this appeal.

Appellant Ratsutsky claims that the Soviet divorce was a "sham” and was sought "pro forma” to ease the parties’ respective efforts and those of the Ratsutsky family to emigrate as Jewish-Soviet citizens to the United States. Her central contention is that the divorce was needed because married Jews were otherwise "barred” or "delayed” or burdened with "Soviet red tape” from emigrating.

Supreme Court ruled that there were questions of fact surrounding the allegedly legally coercive circumstances and public policies of the Soviet affecting the parties’ divorce. The Appellate Division disagreed, one Justice dissenting, and ruled that the validity of the Soviet divorce was unassailable and that the parties’ voluntary joint effort to secure the very relief they sought — divorce—was likewise incontestable. That Court, nevertheless, granted Ratsutsky leave to appeal to this Court on a certified question. We answer it in the affirmative as we affirm the order of the Appellate Division granting the former husband, Gotlib, summary judgment dismissing his former wife’s New York divorce action against him.

This divorce action may lie in New York only if the parties are still married. For New York to treat them as still married, it would have to disregard the facially valid and undeniably regular Soviet divorce decree from 1976. Such a departure from settled comity principles can be justified only as a rare exception (Greschler v Greschler, 51 NY2d 368, 376-377). Some evidentiary basis to support the proposition that the particular divorce decree of the foreign country was the product of individualized fraud or coercion or oppression or rested on proximately related public policies fundamentally offensive and inimical to those of this State must be demonstrated (id,.; Feinberg v Feinberg, 40 NY2d 124).

This high burden springs from an ordered sense of respect and tolerance for the adjudications of foreign Nations, paralleling that commanded among the States by the Full Faith and Credit Clause of the United States Constitution (US Const, art IV, § 1; see generally, Restatement [Second] of Conflict of Laws § 98). The comity doctrine is also pragmatically necessary to deal properly and fairly with the millions of relational and transactional decrees and determinations that would otherwise be put at risk, uncertainty and undoing in a world of different people, Nations and diverse views and policies.

This Court is not unmindful or unconcerned about judicially noticed and record-referenced policies of oppression against Jews and others by the former Soviet government, which are anathema to New Yorkers and all Americans with respect to human rights, freedom of religion and political expression and travel. Appellant Ratsutsky’s pleadings and summary judgment submissions, however, are insufficient as they relate to the central issues and burdens she carries in this New York litigation context. There is no evidence or inferential potentiality on this record that the contention concerning married Jews being blocked from jointly emigrating out of the Soviet Union was indeed a policy or a fact that directly or adversely affected the particular efforts of these parties in respect to their seeking and obtaining a Soviet divorce in 1976.

This Court requires particularization in claims emanating out of public policy assertions, a term "frequently used in a very vague, loose or inaccurate sense” (Mertz v Mertz, 271 NY 466, 472). Even if we were to assume that such a particularized repugnant policy existed, there is an insufficient basis in this record to substantiate the view that a question of fact exists relating that policy to the bilateral, voluntarily secured divorce of these parties. This record discloses no cause and effect correlation between the conclusory assertion and the facially valid divorce decree. The equivocality reflected in this record about "delays” and "red tape” in emigrating is not the kind or quantum of specificity our settled principles require to raise a cognizable legal coercion or public policy claim. Indeed, the emigration of appellant’s parents — married Jews — and her married siblings at or about the same time of her own emigration contradicts the very policy which is vaguely asserted as somehow divesting the otherwise valid Soviet divorce decree of legitimate recognition. New York cannot breezily disregard documented facts and facially regular records based on generalized and significantly belated claims (Mertz v Mertz, 271 NY 466, supra). Such a course of action would seriously undermine the "rare” public policy exception to the appropriate application of the doctrine of comity (Greschler v Greschler, 51 NY2d 368, 377, supra; see also, Feinberg v Feinberg, 40 NY2d 124, supra). Indeed, it would substitute an amorphous and inadvisably open-ended escape valve.

We are also satisfied that the conduct of the parties after they immigrated to Brooklyn separately, and then undertook a living arrangement together, cannot in these circumstances be used to deprive the Soviet decree of its validity or recognition in New York. These subsequent events are not enough to create a pertinent question of fact, nor do they manifest a cognizable repudiation or dubiety about the validity of the Soviet divorce. In no event can their subsequent activity be deemed under New York law to constitute a reformalizing of the legally terminated marriage.

Also, it appears uncontested that in 1986 appellant swore in her United States naturalization papers that she was "divorced”. This sworn assertion to the United States Government occurred at a time and place when she was far removed from general or particularized Soviet oppressive policies toward her or toward married Jews wishing to emigrate from that Nation. Instead of any hint that she deemed the divorce decree as anything but valid and binding, she swore and classified her status under the terms and effects of that nine-year-old decree.

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

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

Order affirmed, etc.