text:
    Milton Braten, Appellant, v Bankers Trust Company, Respondent. (And a Third-Party Action.) Williamston Pants Co., Inc., et al., Appellants, v Bankers Trust Company, Respondent. Erwin L. Klineman, Appellant, v Bankers Trust Company, Respondent. (And a Third-Party Action.) William J. Klineman et al., as Executors of Emery E. Klineman, Deceased, Appellants, v Bankers Trust Company, Respondent. (And a Third-Party Action.)
    Argued September 14, 1983;
    decided November 1, 1983

      POINTS OF COUNSEL

      Archibald A. Patterson and Daniel Rhoades for appellant in the first above-entitled action.
    I. The law does not bar proof of the Bank’s oral promise to appellant. II. Neither collateral estoppel nor res judicata applies here. III. Plaintiff presented triable issues of fact. (Community Nat. Bank & Trust Co. v Intercoastal Trading Corp., 55 AD2d 525; Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136; Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57; Holender v Cammann Prods., 78 AD2d 233.)

      Robert Feldman and Steven Troup for appellants in the second, third and fourth above-entitled actions.
    I. The courts below overlooked a prior ruling of this court and disregarded the basic rules applicable to summary judgment. (Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Davis v Shelton, 33 AD2d 707, 26 NY2d 829; Gallo v Higgins Erections & Haulers, 45 AD2d 790; Walski v Forma, 54 AD2d 776; Phillips v Kantor & Co., 31 NY2d 307; Plastoid Cable Corp. of Amer. v TFI Cos., 55 AD2d 930.) II. The courts below improperly applied the doctrine of collateral estoppel.

      David B. Eizenman and Arnold A. Jaffe for respondent in all of the above-entitled actions.
    I. Appellants failed to show any issue of fact which could support a contention that Bankers breached any agreement or promise. (Long Is. Trust Co. v International Inst. for Packaging Educ., 38 NY2d 493; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; Indig v Finkelstein, 23 NY2d 728.) II. The parol evidence rule bars appellants’ claims. (Oxford Commercial Corp. v Landau, 12 NY2d 362; Hanrihan v Parker, 19 Misc 2d 467; Bright Radio Labs. v Coastal Commercial Corp., 4 AD2d 491, 4 NY2d 1021; Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57; Sabo v Delman, 3 NY2d 155; Danann Realty Corp. v Harris, 5 NY2d 317; Long Is. Trust Co. v International Inst. for Packaging Educ., 38 NY2d 493; Leumi Fin. Corp. v Richter, 17 NY2d 166.) III. None of appellants has an independent claim. (Berry Harvester Co. v Wood Mowing & Reaping Mach. Co., 152 NY 540; Flemington Nat. Bank & Trust Co. v Domler Leasing Corp., 65 AD2d 29, 48 NY2d 678; Tomaso, Feitner & Lane v Brown, 4 NY2d 391; Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652; Stone v Metropolitan Life Ins. Co., 12 NY2d 487; Fosmire v National Sur. Co., 229 NY 44; Beveridge v New

      York El. R.R. Co., 112 NY 1; Fifty States Mgt. Corp. v Niagara Permanent Sav. & Loan Assn., 58 AD2d 177; Resinol v Valentine Dolls, 14 AD2d 853; Beck v FMC Corp., 53 AD2d 118, 42 NY2d 1027.) IV. Enforcement of appellants’ claims would violate public policy. (United States v Gens, 493 F2d 216; People v Marcus, 261 NY 268; Mount Vernon Trust Co. v Bergoff, 212 NY 192; Rothschild v Manufacturers Trust Co., 279 NY 355; Franklin Nat. Bank v Skeist, 49 AD2d 215; Chase Manhattan Bank v Komons, 73 AD2d 556.) V. Appellants’ claims are barred under the principles of prior adjudication. (Matter of Shea, 309 NY 605; Watts v Swiss Bank Corp., 27 NY2d 270; Schwartz v Public Administrator, 24 NY2d 65; Carucci v Hanna, 70 AD2d 772; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304; Matter of Reilly v Reid, 45 NY2d 24; Matter of American Ins. Co. [Messinger — Aetna Cas. & Sur. Co.], 43 NY2d 184; Jonas & Naumberg Corp. v Michlin, 220 App Div 649; Rothenberg v Wolfman, 16 Misc 2d 124.)
   OPINION OF THE COURT

Kaye, J.

The breach of contract actions before us, remnants of a web of litigation growing out of the commercial misfortunes of Braten Apparel Corporation (BAG), are based on an alleged oral promise of May, 1974 that, in exchange for an additional guarantee and pledge of services, Bankers Trust Company (the Bank) would continue BAC’s credit until at least September 30, 1974. Plaintiffs are Milton Braten, BAC’s president, individually; Erwin and Emery Klineman, Braten’s father-in-law and his brother; and three companies who were suppliers to BAG. A claim by BAG against the Bank based on this same oral promise was dismissed on the Bank’s summary judgment motion, the promise having been found unenforceable in light of the Bank’s integrated written loan agreement with BAG. (Braten Apparel Corp. v Bankers Trust Co., 80 AD2d 786, mot for lv to app den 54 NY2d 604.) The question presented is whether summary judgment dismissing plaintiffs’ separate claims is also appropriate, as the lower courts held.

Underlying the relationship among the parties is a revolving credit agreement between BAG and the Bank, dated March 31, 1971 (the 1971 Agreement). All loans by the Bank to BAG pursuant to the 1971 Agreement were evidenced by demand notes providing that, in the event of BAC’s changed financial circumstances, or at such time as the Bank felt itself insecure, the Bank could call the loan in full and proceed against the collateral. The 1971 Agreement specified further that it could not be changed orally.

By spring, 1974, the ratio of BAC’s accounts receivable to debt set forth in the 1971 Agreement had been exceeded. The Bank felt itself insecure and sought additional collateral from BAG. At that point the events giving rise to the present actions took place. Plaintiffs assert that, at a dinner meeting in May attended by Milton Braten, Erwin Klineman and representatives of the Bank, the Bank promised it would continue financial accommodations to BAG and would not exercise its rights under the 1971 Agreement until at least September 30, 1974, if both Klinemans would provide their personal guarantees and Emery Klineman would return to active participation in the business. This arrangement, however, was not concluded on the spot. Negotiations looking toward a writing ensued, each side represented by counsel. The Bank refused to renew letters of credit for BAG until there was a signed guarantee.

The document ultimately executed by both Klinemans on July 9, 1974, consists of a nine-page “Guaranty”, incorporating the 1971 Agreement as an exhibit. The “Guaranty” makes no reference to the Bank’s alleged promise of forbearance until September 30, 1974. On the contrary, it states that, up to a maximum amount of $500,000 and until September 30,1974, the Klinemans “irrevocably and unconditionally guarantee to the Bank when due, whether by acceleration or otherwise, a certain portion of [BAC’s] liabilities to the Bank”. The “Guaranty” recites that loans .to BAG are secured by an assignment of accounts receivable, that the unpaid principal balance exceeds the aggregate face amounts of the genuine accounts, and that the Klinemans have requested the Bank to continue making advances to BAG even though such advances may exceed the value of the accounts. The “Guaranty” is given, so it says, “in consideration of financial accommodations given, or to be given or continued” to BAG. In fixing the Kline-mans’ obligation, the terms of the 1971 Agreement are woven throughout the “Guaranty”.

After execution of the “Guaranty”, the Bank continued to extend credit to BAG. However, in late August, 1974, in response to financial statements indicating the insolvency of BAG, the Bank called the loan and proceeded against the collateral. Plaintiffs charge that the abrupt termination of BAC’s credit a full five weeks before September 30, 1974 constituted a breach of the oral agreement of May, 1974, which damaged them. Milton Braten claims he lost the value of his investment iii BAG; the Klinemans complain of the increased guarantee and uncompensated services for BAG; and the corporate plaintiffs, who say they knew of and relied on the Bank’s oral promise, assert that they were induced to gear up their production facilities to supply BAG through September 30,1974. Plaintiffs each state that the oral promise of forbearance was made directly to them, and also that each is the third-party beneficiary of the Bank’s oral promise made to the others.

We affirm the decision below, which granted the Bank’s motion for summary judgment dismissing plaintiffs’ claims, but on different grounds.

Before proceeding to a consideration of the three separate groups of claims, we point out that Millerton Agway Coop. v Briarcliff Farms (17 NY2d 57), relied on by all the plaintiffs, is inapposite. That was an action for fraud in the inducement. While plaintiffs have served more than a dozen complaints against the Bank, they do not assert fraud claims in the complaints before us. Nor is Nassau Trust Co. v Montrose Concrete Prods. Corp. (56 NY2d 175) applicable since the waiver plaintiffs seek to enforce is of the Bank’s contractual rights with a third party, BAG.

THE KLINEMANS

The claims of the Klinemans based on an oral promise to them in May, 1974 to continue credit to BAG were appropriately dismissed. The principle which governs this result is simply stated: evidence of what may have been agreed orally between the parties prior to the execution of an integrated written instrument cannot be received to vary the terms of the writing. Here, the oral agreement the Klinemans seek to enforce fails because it contradicts the provisions of the “Guaranty” which they negotiated and signed subsequent to the alleged oral promise and because it is so clearly connected with the “Guaranty” that the parties could have been expected to embody it in that writing. (Mitchill v Lath, 247 NY 377, 380-381.) Such a collateral agreement cannot be separately enforced. (Sabo v Delman, 3 NY2d 155, 161; Fogelson v Rackfay Constr. Co., 300 NY 334, 338.)

In their “Guaranty”, the Klinemans undertake “irrevocably and unconditionally” to guarantee payments to the Bank when due, subject only to the conditions of maximum amount and termination date. The Klinemans would now impose yet a third condition, the extension of financial accommodations to BAG until at least September 30,1974. But such a condition would flatly contradict the Kline-mans’ unconditional promise (Meadow Brook Nat. Bank v Bzura, 20 AD2d 287), and it is therefore unenforceable. (Bank of Suffolk County v Kite, 49 NY2d 827, 828; Long Is. Trust Co. v International Inst. for Packaging Educ., 38 NY2d 493, 497; 57 NY Jur, Suretyship and Guaranty, § 283.) Additionally, the oral promise contradicts the written instrument in the real sense that the “Guaranty” signed by the Klinemans embraces and adopts the 1971 Agreement, which permits the Bank to call the BAG loan and proceed against the collateral.

The “Guaranty” is a complete written instrument. In the absence of a merger clause, as here, the court must determine whether or not there is an integration “by reading the writing in the light of surrounding circumstances, and by determining whether or not the agreement was one which the parties would ordinarily be expected to embody in the writing.” (Ball v Grady, 267 NY 470, 472; Mitchill v Lath, 247 NY 377, 381, supra.) Both a reading of the “Guaranty” and a consideration of the surrounding circumstances lead to the conclusion that the “Guaranty” is a complete written instrument. The “Guaranty” recites that it is given “in consideration of financial accommodations given, or to be given or continued” to BAG. There is no mention of a promise to forbear until September 30 in this clause, dealing with the very subject matter, or in any other part of the “Guaranty”. The parties and their counsel negotiated during a two-month period, resulting in a specially drawn document executed by the Klinemans. Such a fundamental condition would hardly have been omitted.

The Klinemans having no enforceable claim for breach „ of the alleged oral promise, any claims of the remaining plaintiffs as their third-party beneficiaries would also fail. (4 Williston, Contracts [3d ed], § 647.)

MILTON BRATEN

Summary judgment was also properly granted for the Bank as to Milton Braten, BAC’s president. Braten now argues that the Bank made its oral promise to him in his personal capacity, but there are no facts alleged to support the contention that the Bank dealt with him as an individual rather than as the agent of BAC. The exhibits, affidavits and testimony before us indicate that the negotiations in spring, 1974 concerned BAC’s finances, and the transaction involved solely money advances to help BAG alleviate its financial predicament. In his extensive efforts to recover against the Bank on behalf of BAG, Braten himself has in testimony and affidavit described material events and his participation in them exclusively in terms of benefit to BAG. His actions throughout were consistent with his representation of BAC’s interests, and with shoring up the corporation’s finances. There is no factual showing to dispute the Bank’s assertions that it was dealing with Braten as the agent of BAG when it sought further security for BAC’s loan. Braten therefore individually has no claim against the Bank for breach of its alleged oral promise. (Restatement, Agency 2d, §§ 363, 372, subd [2].)

THE CORPORATE PLAINTIFFS

There is no evidence of any direct agreement between the Bank and the corporate plaintiffs. Moreover, in order to claim as third-party beneficiaries they must show that promises were in some way made for their benefit, and there is no support in the record for such a contention. Here, although a continuation of the. Bank’s extension of credit to BAG might have benefited them as suppliers, there is no proof of intent to give them any independent right. They are at best incidental beneficiaries with no action against the Bank for breach of the alleged promise. (Tomaso, Feitner & Lane v Brown, 4 NY2d 391, 393; 22 NY Jur 2d, Contracts, § 274.) Accordingly, it was proper to grant summary judgment against them as well.

For the reasons stated above, the orders of the Appellate Division should be affirmed, with costs.

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

In each case: Order affirmed, with costs.

      . Summary judgment was granted below on the basis that the dismissal of claims by BAG on a similar promise requires dismissal of plaintiffs’ claims. But BAC’s claims based on the oral agreement were precluded by the 1971 Agreement, to which these plaintiffs were not parties, while plaintiffs’ actions are based on oral promises allegedly made to or for them. Given these differences, neither collateral estoppel nor res judicata is applicable.

      . Braten’s conclusory assertion in an affidavit that the Bank’s promise was nonetheless a promise to him individually does not raise an issue of fact so as to defeat summary judgment. (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; 342.)


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    In the Matter of Lawrence Campbell, Appellant, v Michael Pesce, as Criminal Court Judge of City of New York, County of Kings, et al., Respondents.
    Argued September 21, 1983;
    decided November 3, 1983

      POINTS OF COUNSEL

      Michele Maxian, Caesar D. Cirigliano and Bennett M. Lincoff for appellant.
    I. Since the armed felony restrictions of CPL 180.50 (subd 2, par [b], cl [ii]) do not apply, appellant’s original conviction was validly entered and cannot be vacated over his objection. (People v Zambounis, 251 NY 94; People v Schultz, 301 NY 495; People v Grogan, 260 NY 138; People v Suarez, 103 Misc 2d 910; People v Di Falco, 44 NY2d 482; People v Harding, 44 AD2d 800; Oyler v Boles, 368 US 448; United States v Bland, 472 F2d 1329, 412 US 909; Guiseppi v Walling, 144 F2d 608; People v Samuels, 284 NY 410.) II. Even if the armed felony restrictions of CPL 180.50 (subd 2, par [b], cl [ii]) control, it must be assumed that the trial court complied with them, the conviction was therefore validly entered and the trial court was without power to vacate appellant’s conviction over his objection. (People v Thompson, 251 NY 428; People v Bartley, 47 NY2d 965; United States v Jerry, 487 F2d 600.) III. Even if appellant’s plea was erroneously entered, his re-prosecution is prohibited by the double jeopardy clause of the Federal and State Constitutions. (Ball v United States, 163 US 662; Ex parte Lange, 18 Wall [85 US] 163; Benton v Maryland, 395 US 784; Green v United States, 355 US 184;
      United States v Jorn, 400 US 470; People v Minaya, 54 NY2d 360; People v Bartley, 47 NY2d 965; United States v Scott, 437 US 82; People v Key, 45 NY2d 111.)

      Elizabeth Holtzman, District Attorney {Sarah G. Noll and Barbara D. Underwood of counsel), respondent pro se, and for Michael Pesce, respondent.
    I. Defendant’s plea and sentence were a nullity and were therefore properly vacated by the court. (People v Briggs, 38 NY2d 319; People v Jones, 69 AD2d 912, 51 NY2d 915; People v Minaya, 54 NY2d 360; People v Wilson, 56 NY2d 613; People v Hicks, 79 AD2d 887; Matter of Wadsworth v Mogavero, 71 AD2d 157; People v Mackley, 71 AD2d 1054; People v Dorsey, 89 AD2d 521; People v Chambers, 64 AD2d 533; Dorszynski v United States, 418 US 424.) II. Prosecution of defendant pursuant to the vacatur of his plea is permissible by statute and violates neither the Federal nor State guarantees against double jeopardy. (Fong Foo v United States, 369 US 141; Simmons v United States, 142 US 148; Gori v United States, 367 US 364; Arizona v Washington, 434 US 497; Green v United States, 355 US 184; United States v Di Francesco, 449 US 117; People v Sledge, 90 AD2d 588; People v Hicks, 79 AD2d 887; People v Alfano, 75 AD2d 584.)
   OPINION OF THE COURT

Kaye, J.

After sentence has commenced, a court which has accepted a plea in violation of the Criminal Procedure Law may not vacate the illegal plea and reinstate the original charges.

Appellant was arraigned on a felony complaint charging first degree robbery and criminal use of a firearm in the first degree. According to the complaint, appellant, acting in concert with another person, “forcibly stole certain property” from the victim and “displayed what appeared to be a handgun.” The prosecutor moved to reduce the charges to the misdemeanor offenses of petit larceny and fourth degree weapon possession. The court and the prosecutor then accepted appellant’s plea of guilty to petit larceny in satisfaction of the charges. Appellant was immediately sentenced to nine months in jail and commenced serving his sentence.

Two weeks later, the People moved to vacate appellant’s conviction on the ground that the charges had been reduced in violation of. CPL 180.50 (subd 2, par [b], cl [ii]), which prohibits reduction of an armed felony to a misdemeanor charge unless the court first determines that there was no reasonable cause to believe that the accused committed an armed felony. The court granted the motion and reinstated the original charges, noting that it had in fact made no inquiry as to whether the case involved an armed felony. Appellant thereafter commenced this article 78 proceeding seeking to prohibit further.prosecution on the felony charges and to have his original plea and sentence reinstated. The court denied the application and the Appellate Division affirmed.

Although acceptance of the plea was illegal, there exists no statutory authorization for the court to vacate the plea and sentence at the prosecutor’s request and reinstate the original charges. The District Attorney cited CPL 440.10 (subd 1, par [a]) and 440.40 (subd l) in support of his application to vacate both the plea and the sentence. Neither provision empowered the court to grant the motion. CPL 440.10 (subd 1, par [a]) permits the court to vacate a judgment only upon motion of the defendant. CPL 440.40 (subd 1) allows the court to vacate a sentence for illegality on motion of the People within one year of its imposition. But here it is not claimed that the sentence was illegal, and in any event this section confers no power to set aside the plea and reinstate the original charges. Indeed, subdivision 5 of the same section specifies that an order entered pursuant to the People’s motion “does not affect the validity or status of the underlying conviction”. Nor does any other provision of the CPL enable the People to upset the plea.

Within the statutory framework, we have recognized the inherent power of a court to correct its own error in connection with accepting a plea or imposing sentence. In People v Minaya (54 NY2d 360, cert den 455 US 1024), we upheld the court’s correction of a sentence where the record established that there had been patent clerical error in imposing the negotiated term. Again in People v Wright (56 NY2d 613), we recognized the inherent power of a court to correct its error in imposing sentence where the record showed that in sentencing the defendant to a concurrent, rather than consecutive, sentence, the Trial Judge had merely misspoken. In both Minaya and Wright, the corrections made after sentencing not only were evident from the record but also fully comported with the expectation of the court, the prosecutor and the defendant at the time sentence was imposed. In People v Bartley (47 NY2d 965), a plea which had been illegally accepted was vacated on the court’s inherent power, but that vacatur occurred prior to the imposition of sentence.

In no instance have we recognized a court’s inherent power to vacate, a plea and sentence over defendant’s objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by the entry of judgment. Indeed, by CPL 440.40 (subd 1) the Legislature has expressed its intent to place a time limit on the People’s right to challenge an illegal judgment, which would be vitiated by an undefined inherent power to correct errors, whenever evidenced, which do not even appear in the record.

There being no basis for the court’s vacatur of the plea, the original plea and sentence must be reinstated, and further criminal proceedings on the first felony charges are barred by double jeopardy protection. The order of the Appellate Division should be reversed and the petition granted, without costs.

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

Order reversed, etc.

      . CPL 440.10 (subd 1, par [a]) provides: “1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: (a) The court did not have jurisdiction of the action or of the person of the defendant”.

      . Under CPL 440.40 (subd 1), “At any time not more than one year after the entry of a judgment, the court in which it was entered may, upon motion of the people, set aside the sentence upon the ground that it was invalid as a matter of law.”


author: Chief Judge Cooke. Wachtler, J.

text:
    The People of the State of New York, Appellant, v John T. Langen, Respondent.
    Argued September 22, 1983;
    decided October 27, 1983

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney {Joyce P. Adolf-sen and Mark Dwyer of counsel), for appellant.
    The opening
    of Langen’s locked suitcase was permissible pursuant to the automobile exception to the warrant requirement of the Fourth Amendment and incident to his arrest. (Carroll v United States, 267 US 132; People v Belton, 55 NY2d 49; People v Orlando, 56 NY2d 441; United States v Ross, 456 US 798; Chambers v Maroney, 399 US 42; People v John BB., 56 NY2d 482; United States v Ventresca, 380 US 102; United States v Chadwick, 433 US 1; United States v Johnson, 457 US 537.)

      Mel A. Sachs for respondent.
    I. The court below correctly affirmed the order suppressing physical evidence obtained in violation of defendant Langen’s constitutional rights. (United States v Chadwick, 433 US 1; Arkansas v Sanders, 442 US 753.) II. All points raised in appellant’s brief are supported only by later cases which are nonretroactive. (People v Belton, 55 NY2d 49; United States v Ross, 456 US 798; United States v Chadwick, 433 US 1; Arkansas v Sanders, 442 US 753; Desist v United States, 394 US 244; United States v Peltier, 422 US 531; Robbins v California, 453 US 420.)
   OPINION OF THE COURT

Chief Judge Cooke.

This appeal presents the question left undecided in People v Belton (55 NY2d 49, 54, n 3): whether, when police engage in a lawful search pursuant to the automobile exception to the State and Federal Constitutions’ warrant requirements, they may search a locked container located in the passenger compartment of an automobile. It is held that when the circumstances giving rise to probable cause to arrest a driver or passenger in the automobile also support the belief that the automobile contains contraband related to the crime for which the arrest is made, police may search, within a reasonable time after the arrest, any container, locked or otherwise, located in the automobile.

I

Police stopped defendant after they observed him driving his pickup truck while a female passenger held under his nose a rolled bill inserted into a small manila envelope. When defendant stepped out of his vehicle, police saw a plastic vial containing white powder protruding out of defendant’s vest pocket. The vial was seized and defendant was arrested, frisked, and administered Miranda warnings. Defendant volunteered that a traveling bag located behind the seat in the passenger compartment of the truck did not belong to him. One of the officers removed the piece of luggage, which was locked, forced it open with a screw driver, and found cash, a bank account book in defendant’s name, and several envelopes containing a white powdery substance, later identified as cocaine.

Defendant moved to suppress the material seized from the suitcase as taken in violation of his constitutional rights against unreasonable searches and seizures. The court found that while the initial stop of defendant was valid, the police were required to obtain a warrant before searching the locked bag and, therefore, the material seized from it should be suppressed. In so holding, the suppression court relied on the Supreme Court’s decisions in United States v Chadwick (433 US 1) and Arkansas v Sanders (442 US 753).

The analysis employed by the court in finding no justification for the warrantless search of defendant’s suitcase centered on the holdings in Chadwick and Sanders that, unlike the situation with respect to automobiles generally, a person has no reduced expectation of privacy with respect to property kept in closed containers and, once a container has been seized by police, the obtaining of a warrant for their search is no longer impracticable. The court reasoned that inasmuch as defendant had a legitimate expectation of privacy in the contents of his suitcase, and no exigency existed, police had no justification to proceed with the search in the absence of a warrant. The Appellate Division affirmed, without opinion.

II

Since the suppression court granted defendant’s motion, the United States Supreme Court in United States v Ross (456 US 798), has expanded the scope of the automobile exception and, in doing so, explicated and distinguished Chadwick and Sanders. Inasmuch as one of the principal points of contention in this appeal concerns whether Ross should be given retrospective application, it is necessary to examine the Supreme Court’s reasoning in Chadwick and Sanders, as well as its decision in Ross.

A

In Chadwick, the Supreme Court considered the argument whether the rationale underlying the automobile exception to the Fourth Amendment’s warrant requirement should apply to movable, closed containers. In that case, Federal railroad agents became suspicious when they noticed that a padlocked footlocker that was to be loaded on a train was unusually heavy and was leaking talcum powder, a substance known to be used to mask the aroma of marihuana. The train was met at its destination by Federal narcotics agents who, through the use of a trained police dog, determined that the footlocker contained marihuana. Rather than securing a warrant, the agents waited for the defendant to retrieve the footlocker, whereupon it was seized and searched. A large quantity of marihuana was discovered.

In evaluating the reasonableness of the warrantless search, the court considered the rationale underlying the automobile exception to the Fourth Amendment’s warrant requirement. The court noted that the search of automobiles believed upon probable cause to contain contraband has constituted a long-standing exception to the warrant requirement (see United States v Chadwick, 433 US 1, 11-12, supra; see, also, Carroll v United States, 267 US 132). While the basis for this exception historically had been the inherent mobility of the automobile, which made obtaining a warrant impracticable, the Supreme Court also acknowledged that it had “sustained ‘warrantless searches of vehicles * * * in cases in which the possibilities of the vehicle’s being removed or evidence in it destroyed were remote, if not nonexistent’ ” (United States v Chadwick, 433 US 1,12, supra, quoting Cady v Dombrowski, 413 US 433, 441-442). The court noted that great reliance in supporting the exception was placed on the diminished expectation of privacy one has in an automobile, due to its highly visible interior, its use on public thoroughfares, and its being subjected to extensive regulation and inspection (id., at pp 12-13).

This diminished expectation of privacy surrounding automobiles, the court held, did not apply to the footlocker or other closed luggage. The footlocker was not exposed to public view or “subject to regular inspections and official scrutiny on a continuing basis” (id., at p 13). Nor, in the court’s view, did the mobility of a movable closed container justify excepting its search from the warrant requirement as the footlocker, having been immobilized, was not subject to loss or destruction pending the obtaining of a warrant (id.). Thus, the rationale underlying the automobile exception was inapplicable to closed containers, and, as a general matter, a search of closed, movable containers in nonexigent circumstances could not be conducted without a warrant.

In Arkansas v Sanders (442 US 753, supra), the court considered whether closed containers in a car may be examined as part of an otherwise proper search of the car under the automobile exception. In that case, police had been informed that the defendant would arrive on a particular flight landing at the Municipal Airport in Little Rock, Arkansas, carrying a green suitcase containing marihuana. The defendant, who fit the description given by the informant, arrived on the flight. Police observed him place some hand luggage in a taxi, and return to the terminal’s baggage area to retrieve a green suitcase. The defendant handed the bag to a companion who had met him at the airport. Eventually, both returned to the taxi and the green suitcase was placed in its trunk. Police stopped the taxi, as it pulled away from the terminal and had the driver remove the green suitcase. A warrantless search of the suitcase revealed its contents to be marihuana.

The Supreme Court held that the warrantless search of the suitcase violated the Fourth Amendment. The court first reiterated its holding in Chadwick that the rationale supporting warrantless searches of automobiles — mobility and diminished expectation of privacy — does not apply to closed containers (see Arkansas v Sanders, 442 US 753, 762, supra). While acknowledging that “[a] closed suitcase in the trunk of an automobile may be as mobile as the vehicle in which it rides”, the court noted that “the exigency of mobility must be assessed at the point immediately before the search — after the police have seized the object to be searched and have it securely within their control” (id., at p 763). The court stated that inasmuch as police had already seized the suitcase, “the extent of its mobility [was] in no way affected by the place from which it was taken” (id.). The court added that while the administrative burdens to law enforcement agencies attendant in requiring them to post guard or to move and store an immobilized automobile while procuring a search warrant provide an additional basis for permitting a warrantless search, “[n]o comparable burdens are likely to exist with respect to the seizure of personal luggage” (id., at pp 765-766, n 14). Accordingly, the search was held not justified under the automobile exception.,

In United States v Ross (456 US 798, supra), the scope of the automobile exception was expanded. In that case, police received a tip from a reliable informant that a man was selling narcotics from the trunk of a “purplish maroon” Chevrolet Malibu with District of Columbia license plates. The car described by the informant was sighted by police while being driven in an area in which the informant stated it would be located. Police stopped the car and told defendant to step out. The officers then conducted a warrantless search of the car and found a brown paper bag in its trunk. They opened the bag and discovered glassine envelopes containing what was later determined to be heroin.

The question before the Supreme Court was “the extent to which police officers — who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it — may conduct a probing search of compartments and containers within the vehicle whose contents aré not in plain view” {id., at p 800). The court held that in such circumstances, police may conduct a search “that is as thorough as a magistrate could authorize in a warrant ‘particularly describing the place to be searched’ ” {id.). The court added that under this holding, “[t]he scope of a warrantless search of an automobile * * * is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which [upon post hoc determination] there [was] probable cause to believe that it may be found” {id., at p 824).

The court reasoned that: “A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand” (United States v Ross, 456 US 798, 820-821, supra).

In so holding, the court reaffirmed its result in Sanders, but characterized it as not a “true” automobile exception case — a case in which police had probable cause to believe that contraband was secreted somewhere in the automobile necessitating a search of the entire automobile. Rather, the court stated that Sanders should have been considered a case closely akin to Chadwick, in which a warrant was required because there was probable cause to search only a container. As probable cause to search was localized in the suitcase, mere placement of the suitcase in the taxi did not give rise to generalized probable cause to believe that contraband was located somewhere in the taxi, thereby invoking the automobile exception and justifying a warrantless search of the entire taxi, including the suitcase in the trunk (id., at pp 812-813; see Arkansas v Sanders, 442 US 753, 766-767 [Burger, Ch. J., concurring], supra).

B

Defendant, in urging affirmance of the suppression order, argues that his motion was properly decided according to the law then extant defining the scope of the automobile exceptions to the warrant requirements of the Fourth Amendment and section 12 of article I of the New York State Constitution (see People v Belton, 55 NY2d 49, 54, n 3, supra), and that under the retrospectivity principles enunciated in United States v Johnson (457 US 537), the Supreme Court’s holding in Ross constituted a clear break with past precedent and therefore should be given prospective effect only. The People argue that the Supreme Court’s decisions in Ross and this court’s decision in People v Belton (supra) “instruct that the search of defendant’s suitcase and the recovery of his cocaine were lawful”. It is further argued that constitutional pronouncements that uphold or validate police conduct should be applied to cases not yet final at the time the pronouncement is made.

Consideration first turns to whether, under United States v Johnson (supra), the rule announced in Ross should be applied to this appeal. In Johnson, the court examined the circumstances in which a “new” Fourth Amendment interpretation will be applied to cases that are on direct appeal when the rule is announced. Three “threshold” categories of cases were identified as necessarily requiring either retrospective or prospective application of the newly announced constitutional rule. When the rule constitutes the application of settled principle to a novel factual situation “it has been a foregone conclusion that the rule of the later case applies in earlier cases, because the later decision has not in fact altered that rule in any material way” (United States v Johnson, 457 US 537, 549, supra). When, however, the court has expressly characterized the ruling to be “‘a clear break with the past,’ ” it will be applied only prospectively (id.). Finally, when the constitutional ruling serves to void ab initio a trial court’s authority to convict or punish a criminal defendant, that construction will be accorded full retroactive effect (id., at p 550-551).

The Supreme Court’s decision in Ross falls under none of these categories. On the one hand, the rule announced in Ross cannot be characterized as an application of settled precedent to a new factual setting. Indeed, in Robbins v California (453 US 420), the court’s last statement before Ross on the permissible scope of warrantless searches of automobiles, a majority of the court, relying on the rationale in Sanders, construed the Fourth Amendment to forbid the warrantless search of closed containers found in an automobile, notwithstanding that police had engaged in a lawful search of the automobile itself (id., at pp 428, 429-430). On the other hand, the court’s decision in Ross may not be considered “a clear break” with past precedent under the Johnson standard, which places great weight on how the court characterizes its holding in relation to past precedent (see United States v Johnson, 457 US 537, 549, 551-552, supra). The court, in Ross, while acknowledging that its decision substantially overruled the holding in Robbins and the rationale in Sanders, also noted that “no legitimate reliance interest can be frustrated” by its decision in Ross, and that it is “convinced” that the rule enunciated in Ross “is faithful to the interpretation of the Fourth Amendment that the Court has followed with substantial consistency throughout [its] history” (United States v Ross, 456 US 798, 824, supra). The Ross decision clearly does not fall under the third “threshold” category as it does not serve to completely insulate a defendant from conviction or punishment.

When the retrospective effect of a constitutional pronouncement is not controlled by a threshold rule, the Supreme Court has instructed that the newly announced rule should apply to all cases on direct review (see United States v Johnson, 457 US 537, 554, supra; see, also, Linkletter v Walker, 381 US 618; Tehan v United States ex rel. Shott, 382 US 406) as this would advance the principles that a court should not ordinarily diverge from the policy of stare decisis, that justice should be afforded the litigants on the merits of the case, and that cases should be resolved according to the best understanding of the constitutional principles involved (see United States v Johnson, supra, at pp 554-555). The court also noted that “[a]n approach that resolved all nonfinal convictions under the same rule of law would lessen the possibility that this Court might mete out different constitutional protection to defendants, simultaneously subjected to identical police conduct” (id., at p 556).

Applying this rule indicates that United States v Ross should be given retrospective application to all cases on direct review, including the instant appeal. Inasmuch as the principles of retrospectivity discussed above are derived from general principles of judicial decision-making, this court perceives no reason for its application to differ when the new constitutional pronouncement narrows rather than broadens a prior understanding of a constitutional protection.

C

Under the rule announced in Ross, it is evident that the officer’s warrantless search of defendant’s suitcase here was permissible under the automobile exception to the Fourth Amendment’s warrant requirement. The police observation of defendant’s companion holding under defendant’s nose a paper cylinder protruding from a manila envelope provided ample cause for police to believe that defendant was ingesting a controlled substance. Indeed, as the suppression court noted, “[g]iven the state of affairs in New York City in 1981, the average moderately aware, reasonable and prudent citizen who saw defendant’s behavior would have drawn the same conclusion as the police officers”. Thus, the initial stop was reasonable.

Immediately after the stop, as defendant was retrieving his license and registration from his pocket, a vial containing white powder came into plain view. There is an affirmed finding that probable cause to arrest defendant arose at this point from “the combination of the officers’ observations from their car plus the observation of the vial”. These observations also gave the officers cause to believe that contraband was secreted somewhere within defendant’s truck. Having observed the manila envelope, which was of the type typically used to contain controlled substances, and later having observed the vial containing white powder, police reasonably could have undertaken a search of the automobile. Thus, inasmuch as there was probable cause to believe contraband was located somewhere in the truck, police were free, under the Fourth Amendment, to conduct a warrantless search of the entire truck, including any compartments, and the locked suitcase (see United States v Ross, 456 US 798, supra). This was not an instance in which probable cause to search focused only on the particular piece of luggage.

_D

This court’s inquiry into this search’s reasonableness does not end, however, upon the determination that it passed muster under the Fourth Amendment. This court has held that “[b]y interposing the requirement of a warrant issued judicially, upon information attested by oath or affirmation and which establishes probable cause, the State Constitution protects the privacy interests of the people of our State, not only in their persons, but in their houses, papers and effects as well, against the unfettered discretion of government officials to search or seize” (People v Belton, 55 NY2d 49, 52, supra; see NY Const, art I, §12).

In People v Belton (55 NY2d 49, 54, supra), this court recognized a “narrow” automobile exception to the State Constitution’s warrant requirement. “[T]he reduced expectation of privacy associated with automobiles and the inherent mobility of such vehicles” combine to justify the warrantless search of an automobile upon probable cause to believe it carries contraband (id., at p 53). The court cautioned, however, that under the State Constitution, “[t]he automobile exception [is] * * * subject to the limitations inherent in the factors which are its predicate” (id., at p 54).

In limited situations, such as in the instant appeal, the warrantless search of closed containers found in an automobile may be justified. The circumstances giving rise to a valid arrest of the driver or passenger of an automobile may also permit police to search a closed container found in the automobile. In Belton, this court held that when “police have validly arrested an occupant of an automobile, and they have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein” (People v Belton, 55 NY2d 49, 55, supra [emphasis supplied]).

It is noted that there is no inconsistency in this rule and the general rule governing the permissible scope of a search incident to arrest (see People v Smith, 59 NY2d 454). The rule provided above has reference to property stored in an automobile and the lack of a need for obtaining a warrant, which do not attach in other circumstances. Moreover, while a search incident to arrest may be conducted without probable cause beyond that to arrest the person, thereby necessitating the strict temporal and spatial limits, as well as the presence of some exigency, the above rule requires both probable cause to search the automobile generally and a nexus between the probable cause to search and the crime for which the arrest is being made.

The officer’s warrantless search of defendant’s suitcase was permissible under the State Constitution. Upon defendant’s arrest for drug possession, the police had probable cause to believe that contraband related to that crime was located somewhere in the truck. Therefore, they could properly search the entire truck, including any closed containers found therein. It was irrelevant that the suitcase was locked. Again, under our State Constitution as under the Federal Constitution it is critical that the probable cause here related to the automobile and did not focus exclusively on the container.

Accordingly, the order of the Appellate Division should be reversed and defendant’s motion to suppress denied.

Wachtler, J.

(concurring). The majority has done an

excellent job of attempting to determine what the Supreme Court has held in the past and may hold in the future with respect to automobile searches following an arrest. However, on the facts of this case, I do not believe that is necessary. In my view when the defendant called the officers’ attention to the locked piece of luggage and stated that it was not his, he made it clear that he had no expectation of privacy with respect to the luggage or its contents (see Rawlings v Kentucky, 448 US 98, 104-106). Because there is no showing that the defendant’s rights were implicated it is unnecessary for this court to determine whether the search would have been lawful under standards not yet pronounced by the United States Supreme Court.

Judges Jasen, Jones, Simons and Kaye concur with Chief Judge Cooke; Judge Wachtler concurs in result in a memorandum in which Judge Meyer concurs.

Order reversed, etc.


author: Chief Judge Cooke.

text:
    Marjorie R. Sega, Appellant, v State of New York, Respondent. Richard Cutway et al., Respondents, v State of New York, Appellant.
    Argued September 19, 1983;
    decided October 25, 1983

      POINTS OF COUNSEL

      Andrew L. Spitz for appellant in the first above-entitled case.
    I. The court below should not have considered the applicability of section 9-103 of the General Obligations Law. (Basso v Miller, 40 NY2d 233; Racine v Morris, 201 NY 240; Heimburg v Manhattan Ry. Co., 162 NY 352; Commercial Credit Corp. v Wells, 228 App Div 402; Knauss v Webber Constr. Co., 156 App Div 39; Snider v Snider, 160 NY 151; Cullen v Naples, 31 NY2d 818, 41 AD2d 671, 32 NY2d 878; Martin v City of Cohoes, 37 NY2d 162.) II. Section 9-103 of the General Obligations Law is not applicable to this case. (Basso v Miller, 40 NY2d 233; Meyer v State of New York, 92 Misc 2d 996; Burkhart v State of New York, 50 Misc 2d 912, 28 AD2d 1167; Terry v State of New York, 79 AD2d 1069; Rock v Concrete Materials, 46 AD2d 300, 36 NY2d 772; Scurti v City of New York, 40 NY2d 433; Caldwell v Village of Is. Park, 304 NY 268; Smyke v State of New York, 203 Misc 186, 282 App Div 914, 307 NY 737; Michalovic v Genesee-Monroe Racing Assn., 79 AD2d 82.) III. This case must be remitted to the court below for determination of the factual issues raised in that court. (Havas v Victory Paper Stock Co., 49 NY2d 381; Nardelli v Stamberg, 44 NY2d 500; Cullen v Naples, 31 NY2d 818.)

      Robert Abrams, Attorney-General (Michael S. Buskus and Peter H. Schiff of counsel), for respondent in the first above-entitled case.
    I. The appeal should be dismissed, as the dissent in the court below was on a question of discretion. (Guaspari v Gorsky, 29 NY2d 891.) II. In any event, the application of the court below’s “interest of justice” discretion is not reviewable; assuming, arguendo, this court has jurisdiction, the appeal should be dismissed for it involves nonreviewable discretion. (Patron v Patron, 40 NY2d 582; Stevens v Breen, 283 NY 196.) III. The court below properly took judicial notice of a State statute. (Pine Grove Poultry Farm v Newton By-Products Mfg. Co., 248 NY 293; Howard Stores Corp. v Pope, 1 NY2d 110; Martin v City of Cohoes, 37 NY2d 162.) IV. Appellant’s arguments as to interpretation of the statute are improperly raised without any jurisdictional predicate.

      Robert Abrams, Attorney-General (Michael S. Buskus and Peter H. Schiff oí counsel), for appellant in the second above-entitled case.
    I. Section 9-103 of the General Obligations Law, with exceptions not here applicable, states that a landowner owes no duty; hence, there can be no liability. (Merriman v Baker, 34 NY2d 330; Atkins v Glens Falls City School Dist., 53 NY2d 325; Pulka v Edelman, 40 NY2d 781; Perkins v New York Cent. R.R. Co., 24 NY 196; Food Pageant v Consolidated Edison Co., 54 NY2d 167; Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392; Reichman v Compagnie Generale Transatlantique, 290 NY 344; Gross v Sweet, 49 NY2d 102; Wassef v State of New York, 98 Misc 2d 505; Castorina v Rosen, 290 NY 445.) II. The courts below erred as a matter of law in finding the cable gate to be a “trap”, and, in any event, erred in imposing liability even if it were a trap. (Curtiss v County of Chemung, 78 AD2d 908; Rock v Concrete Materials, 46 AD2d 300; Carbone v Mackchil Realty Corp., 296 NY 154; Morse v Buffalo Tank Corp., 280 NY 110; Beauchamp v New York City Housing Auth., 12 NY2d 400; Mandelowitz v Neisner, 258 NY 181.)

      Peter N. Wells for respondents in the second above-entitled case.
    I. The State had a duty to reasonably maintain its park property and not to create a hazardous condition without adequate warning. (Meyer v State of New York, 92 Misc 2d 996; Fitzsimmons v State of New York, 42 AD2d 636, 34 NY2d 739; Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433; Brzostowski v Coca Cola Bottling Co., 16 AD2d 196; Malcaso v State of New York, 15 Misc 2d 585,10 AD2d 663; Mitchell v State of New York, 193 Misc 507; Tamm v State of New York, 29 AD2d 601, 26 NY2d 719; Granai v State of New York, 206 Misc 984, 286 App Div 1145.) II. Section 9-103 of the General Obligations Law does not bar claimants’ action herein. (Rock v Concrete Materials, 46 AD2d 300, 36 NY2d 772; Curtiss v County of Chemung, 78 AD2d 908; Beauchamp v New York City Housing Auth., 12 NY2d 400; Mayer v Temple Props., 307 NY 559; Clark v City of Buffalo, 288 NY 62; Le Roux v State of New York, 307 NY 397; Schumm v State of New York, 12 AD2d 682; Serbalik v State of New York, 204 Misc 2, 283 App Div 1136.) III. The Adirondack Park State land master plan promulgated by the Department of Environmental Conservation and its regulations do not bar recovery to claimants. (Mitchell v State of New York, 193 Misc 507.)
   OPINION OF THE COURT

Chief Judge Cooke.

The Legislature has provided that landowners who gratuitously allow persons to use their property for certain enumerated recreational activities such as hiking, fishing, hunting, and off-road vehicle travel are not liable for injuries unless caused by willful or malicious acts or omissions of the owner. There being nothing to the contrary in the law, this protection is available to the State itself when no fee is charged for pursuing these activities on publicly owned property.

I

The cases before the court today raise the scope and application of section 9-103 of the General Obligations Law. Generally, that statute provides that a person in possession of property owes no duty of care to others who use it for a broad variety of recreational activities unless a charge is exacted for use of the property or there is a willful or intentional failure to guard or to warn against a dangerous condition. Claimants here were each injured while on State-owned land. The particulars of their accidents and the proceedings below are outlined briefly.

(A) SEGA V STATE OF NEW YORK

Claimant Sega was injured on July 14, 1976, while hiking with others in the Catskill Forest Preserve near the Peekamoose Campsite, an undeveloped camping ground with limited improvements. The area was largely unsupervised, with , only occasional visits by State agents for garbage collection and maintenance. An unpaved road to the campsite crossed a bridge which had pipe guardrails, suppprted by vertical pipes and T-couplings about 8-10 feet apart. A locked chain stretched across the bridge to prevent access to unauthorized vehicles. Claimant and her friends had been hiking for some time when they reached the bridge. Deciding to rest, claimant perched herself on the railing after shaking it to verify its stability. As she sat facing the creek some 18-20 feet below, the pipe pulled loose from its support after a short time. Claimant fell to the creek and was seriously injured.

Claimant commenced this action against the State on a simple negligence theory. At trial, claimant established that a vehicle had struck the cross chain on the previous Labor Day weekend, about 10 months earlier. As a result of that accident, the railing’s end support had been bent. State employees had visited the scene and determined that the damage was minor and no repairs were necessary. As did claimant, they had checked the railing by shaking it vigorously to ascertain its firmness.

Claimant had seated herself about 16 feet from the end of the bridge. The pipe that she was sitting on pulled loose from the second vertical support. Claimant presented an engineer who opined that the Labor Day accident had caused this second support to twist inward sufficiently to weaken the top rail from its couplings, and that claimant’s weight caused it to pull free completely.

The Court of Claims found that the State had not been negligent. On appeal, the Appellate Division considered section 9-103 of the General Obligations Law, which had not been invoked at trial. The majority concluded that the statute was properly before that court and that claimant had failed to establish any willful or intentional act by the State so as to justify imposing liability upon it.

(B) CUTWAY V STATE OF NEW YORK

In April, 1975, the State purchased approximately 4,200 acres of land (known as the “Schuler property”) as part of the Adirondack Forest Preserve. When acquired, the land had a gravel road that meandered through the property for about five miles. Access to the road was limited by a two-board wooden gate mounted on fieldstone pillars. On each side of the pillars was a fieldstone wall connected to a rail fence extending to the woods. The State padlocked this main gate to restrict vehicular access to the property, but unknown persons broke down and removed a portion of the rail fence to circumvent this obstacle. Buildings on the property were subjected to burglaries and vandalism during the summer of 1975.

In an effort to thwart further damage to the buildings, the State adopted another tack. During the fall of 1975, the main gate was unlocked, but a 10-inch by 20-inch sign was posted declaring the road to be barred to public vehicles. A new gate was installed 491 feet past the main gate. This second gate consisted of two steel well casings set in cement on each side of the roadway with a five-eighths inch steel cable stretched between the posts. When installed, the cable and posts were painted yellow and two red reflectors were hung from the cable. The cable gate was set at a low point in the road. Approaching from the direction of the main gate, the road was fairly straight. Coming from the other direction, however, the road made a sharp turn about 125 feet before the cable gate. No signs warning of the cable were posted anywhere.

On April 18, 1976, claimant and his brother-in-law entered the Schuler property through the main gate. They were riding three-wheeled all-terrain vehicles. Once through the main gate, they immediately left the gravel road and began riding at random through the forest. The two eventually returned to the gravel road and traveled along it towards the main gate at about 20-25 miles per hour. Claimant’s brother-in-law saw the cable in time to avoid it, but claimant struck it, receiving severe injuries to his neck and upper chest. At the time of the accident, the cable had not been inspected since the previous autumn, the reflectors were missing, and the yellow paint had worn off enough to impair the cable’s visibility.

At trial, the State relied on section 9-103. The Court of Claims agreed that the statute was applicable and found that the State had not acted “maliciously or wantonly” in installing the gate. The court found, however, that the cable gate constituted a trap or an inherently dangerous structure and that the State should have posted a warning sign on the road approaching the gate from the Schuler property’s interior. Taking into consideration claimant’s rate of speed, the court found the State to be 80% liable for claimant’s damages. The Appellate Division unanimously affirmed on reasoning essentially the same as that of the lower court.

II

These appeals present the question whether the State may invoke section 9-103 in defense of claims for injuries occurring on State-owned lands. If so, then the manner of the statute’s application must be determined.

On its face, section 9-103 unambiguously includes public property within its purview. By its terms, section 9-103 refers to any “owner, lessee or occupant of premises” without limiting the scope of that clause to private landowners. In addition, the statute refers to ECL 11-2111. ECL 11-2111 pertains to posting lands as fishing and hunting preserves, including “any lands or waters, rights or interests therein owned, leased or otherwise acquired by the state” (ECL 11-2101, subd 1, par d, referenced in ECL 11-2111, subd 1). This confirms that the Legislature intended to provide protection to the State as well as to private landowners.

Claimants in both actions argue that the legislative history indicates that section 9-103 and its predecessor were intended to apply to private land only (see Memorandum of Joint Legislative Committee on Revision of Conservation Law, McKinney’s Sess Laws of NY, 1956, pp 1943-1944). Their argument, at most, does nothing more than urge ambiguity where none exists. Generally, a statute is to be construed according to the ordinary meaning of its words (Riegert Apts. Corp. v Planning Bd., 57 NY2d 206, 209; but see Uniformed Firefighters Assn. v Beekman, 52 NY2d 463, 471 [“‘the absence of ambiguity facially is never conclusive’ ”]), and resort to extrinsic matter is inappropriate when the statutory language is unambiguous and the meaning unequivocal (People v Graham, 55 NY2d 144, 151; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1, 5-6). While legislative intent is the great and controlling principle (Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38), it should not be confused with legislative history, as the two are not coextensive. Inasmuch as the legislative intent is apparent from the language of section 9-103, there is no occasion to consider the import, if any, of the legislative memorandum.

Section 9-103 being applicable to State property, attention is now turned to the statute’s effect. In the lower courts (except, of course, the Sega trial court), the law was characterized as a codification of the common law existing in 1956, when the predecessor statute to section 9-103 was enacted (L 1956, ch 842). Having commenced on this path of reasoning, the courts concluded that each claimant’s status as trespasser, licensee, or invitee was determinative of the State’s duty to protect or to warn against dangerous conditions. Claimants have adopted this position on the present appeal. It must be rejected.

Nothing in the statute suggests that it was meant to codify the common law. It does not refer to trespassers, licensees, or invitees in general terms. Its scope is restricted to a limited number of activities. Indeed, the statute is contrary to the common law existing in New York in 1956. At that time, the occupier of premises was not liable to a licensee unless the occupier knew of the dangerous condition, realized that it involved an unreasonable risk, believed that the guest would not discover the condition or comprehend the risk, and then failed to exercise reasonable care in warning of the condition or risk (see Higgins v Mason, 255 NY 104, 109-110). In contrast, section 9-103 and its predecessors impose liability only if there is a willful or malicious failure to warn. And the statute does not indicate any intent to except traps or concealed defects from this standard.

Moreover, the policy in this State is to determine a landowner’s duty of care on the basis of foreseeability, not on rigid classifications. In Basso v Miller (40 NY2d 233), this court abandoned the common-law classifications of trespasser, licensee, and invitee. This course was chosen partly because “ The classifications and subclassifications bred by the common law have produced confusion and conflict’ ” (id., at p 240, quoting Kermarec v Compagnie Generale, 358 US 625, 631). On its face, section 9-103 imposes a single standard. We see no reason to reintroduce confusion and conflict by interpreting' the statute as a retention of the common-law classifications.

In short, when a plaintiff is confronted with a defense based on section 9-103, discernment of his or her burden is relatively simple. Assuming that the statute applies, plaintiff must prove that the defendant willfully or maliciously failed to guard or to warn against a dangerous condition, use, structure, or activity. The defendant’s negligence, if any, is immaterial.

Claimant Cutway tried his suit with notice that the State was relying on section 9-103 as a defense. Claimant was upon the Schuler property to operate a motorized vehicle for recreational purposes, so the statute is pertinent here. The affirmed findings of fact establish that The State may have been negligent in constructing the cable gate and failing to post warnings, but there is nothing to show that its conduct was willful or malicious. Therefore, there was no basis for imposing liability on the State for claimant’s injuries.

Claimant Sega did not have the benefit of trying her case with notice that section 9-103 would be invoked. A new trial, however, is not necessary. In tort law, the standard of conduct is a matter of degree measured against a “sliding scale, by which the defendant’s liability is least where his conduct is merely inadvertent, greater when he acts in disregard of consequences increasingly likely to follow, greater still when he intentionally invades the rights of another under a mistaken belief that he is committing no wrong, and greatest of all where his motive is a malevolent desire to do harm” (Prosser, Torts [4th ed], § 7, p 31; see id., at § 8, p 32). The standard imposed by section 9-103 requires a graver act than mere negligence before liability may be imposed. Presumably, claimant has adduced all of her evidence pertaining to the State’s conduct. She does not argue that she could have negatived the defense posed by section 9-103 through the presentation of other evidence, such as paying a fee for admission to the park. Although claimant was not walking when she was injured, the acts of sitting and resting are sufficiently related to traveling through the woods on foot to justify the conclusion that she was “hiking” when the accident occurred. The legal issue presented, then, is whether there is sufficient evidence to sustain a judgment for claimant under the strictures of section 9-103. As in Cutway, claimant shows nothing to support a finding that the State acted willfully or maliciously when it failed to discover or to warn about the defect in the bridge’s railing. There is, therefore, no ground for recovery by claimant.

Accordingly, in Sega v State of New York, the order of the Appellate Division should be affirmed, with costs. In Cutway v State of New York, the order of the Appellate Division should be reversed, with costs, and the claim dismissed.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

In Sega v State of New York: Order affirmed, with costs.

In Cutway v State of New York: Order reversed, with costs, and claim dismissed.

      . The full text of section 9-103 reads:
      “89-103. No duty to keep premises safe for certain uses; responsibility for acts of such users
      “1. Except as provided in subdivision two,
      “a. an owner, lessee or occupant of premises, whether or not posted as provided in section 11-2111 of the environmental conservation law, owes no duty to keep the premises safe for entry or use by others for hunting, fishing, canoeing, boating, trapping, hiking, cross-country skiing, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for noncommercial purposes or training of dogs, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes;
      “b. an owner, lessee or occupant of premises who gives permission to another to pursue any such activities upon such premises does not thereby (1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.
      “c. an owner, lessee or occupant of a farm, as defined in section six hundred seventy-one of the labor law, whether or not posted as provided in section 11-2111 of the environmental conservation law, owes no duty to keep such farm safe for entry or use by a person who enters or remains in or upon such farm without consent or privilege, or to give warning of any hazardous condition or use of or structure or activity on such farm to persons so entering or remaining. This shall not be interpreted, or construed, as a limit on liability for acts of gross negligence in addition to those other acts referred to in subdivision two of this section.
      “2. This section does not limit the liability which would otherwise exist
      “a. for willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity; or
      “b. for injury suffered in any case where permission to pursue any of the activities enumerated in this section was granted for a consideration other than the consideration, if any, paid to said landowner by the state or federal government, or permission to train dogs was granted for a consideration other than that provided for in section 11-0925 of the environmental conservation law; or
      “c. for injury caused, by acts of persons to whom permission to pursue any of the activities enumerated in this section was granted, to other persons as to whom the person granting permission, or the owner, lessee or occupant of the premises, owed a duty to keep the premises safe or to warn of danger.
      “3. Nothing in this section creates a duty of care or ground of liability for injury to person or property.”

      . In Sega, a threshold issue is presented as to whether the Appellate Division acted properly in considering section 9-103, which was not mentioned by the State until the case was on appeal. The lower court split on its power to consider the statute “in the interests of justice.” On different reasoning, this court finds nothing objectionable in the Appellate Division’s action. On appeal, a respondent may proffer in support of affirmance any legal argument that may be resolved on the record, regardless of whether it has been argued previously, if the matter is one which could not have been countered by the appellant had it been raised in the trial court (see Scott v Morgan, 94 NY 508,515; cf. Maloney v Hearst Hotels Corp., 274 NY 106, 111; Persky v Bank of Amer. Nat. Assn., 261 NY 212, 217-218; Nicholson v Greeley Sq. Hotel Co., 227 NY 345, 349; People v Bresler, 218 NY 567, 571). Under this standard, it was not inappropriate for the Appellate Division to rule on the basis of section 9-103 (see discussion, at p 193, infra). Similarly, the matter is properly before this court as an argument in support of affirmance.


author: Jasen, J.

text:
    The People of the State of New York, Appellant, v Barry Douglass, Robert Jones, Harmeen Logan, Gregory Baldwin, Kevin St. Halaire, Emilio Lopez and Julio Cordova, Respondents. The People of the State of New York, Appellant, v Gilberto Acevedo, Respondent.
    Argued September 22, 1983;
    decided November 1, 1983

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (.Robert M. Pitler and Marc Frazier Scholl of counsel), for appellant in the first above-entitled action.
    CPL 170.30 provides the exclusive grounds upon which a local criminal court Judge may dismiss an accusatory instrument, and there is no inherent judicial authority to dismiss merely to clear a calendar. (People v Coppa, 45 NY2d 244; Cohn v Borchard Affiliations, 25 NY2d 237; People v McLeod, 25 Wend 483; People v Bennett, 49 NY 137; People v Kwok Ming Chan, 45 AD2d 613; Matter of Rapp v New York City Employees’ Retirement System, 42 NY2d 1; Matter of O’Keefe v Murphy, 38 NY2d 563; Matter of Hogan v Supreme Ct., 281 NY 572; People v Beige, 41 NY2d 60; People v Taranovich, 37 NY2d 442.)

      Brian Sheppard and William E. Hellerstein for respondents in the first above-entitled action.
    The court below correctly found that New York City Criminal Court Judges have the inherent power to control their own calendars by dismissing misdemeanor complaints and that that power was properly exercised in these cases where the prosecutors failed to obey court orders to convert the complaints into informations within a reasonable time. (People v Bell, 95 Misc 2d 360; United States v Bowe, 698 F2d 560; People v Minaya, 54 NY2d 360; People v Olsen, 34 NY2d 349; People v Rickert, 58 NY2d 122; Plachte v Bancroft Inc., 3 AD2d 437; Jones v Maphey, 50 NY2d 971; Riglander v Star Co., 98 App Div 101, 181 NY 531; People v Oskroba, 305 NY 113.)

      Robert M. Morgenthau, District Attorney {Robert M. Pitler and Thomas Burrows of counsel), for appellant in the second above-entitled action.
    When the speedy trial period has not elapsed, and when defendant has not been prejudiced, a New York City Criminal Court Judge has no authority to clear his calendar by dismissing a prosecution for failure to prosecute. In any event, the dismissal here, based solely on the failure of the 11-year-old complainant to respond to a subpoena less than 30 days after defendant was arraigned, was a clear abuse of discretion. (People v Rickert, 58 NY2d 122; Varkonyi v S.A. Empressa De Viacao Rio Grandense [Varig], 22 NY2d 333; People v Bennette, 56 NY2d 142; People v Mayrant, 43 NY2d 236.)

      Mariann Sullivan and William E. Hellerstein for respondent in the second above-entitled action.
    The court below correctly found that New York City Criminal Court Judges have the inherent power to control their own calendars by dismissing misdemeanor complaints and that that power was properly exercised where the prosecutor had failed to convert the complaint to an information by the date the case was marked “final” for conversion. (People v Belge, 41 NY2d 60; People v Weinberg, 34 NY2d 429; People v Kirby, 92 AD2d 848; People v Singleton, 42 NY2d 466; People v Smith, 91 AD2d 928; People v Szychulda, 113 Misc 2d 736, 57 NY2d 719; People v De Rosa, 42 NY2d 872; Spears v Mayor of City of N. Y., 72 NY 442; Barasch v Micucci, 49 NY2d 594; Matter of Dorothy D., 49 NY2d 212.)
   OPINION OF THE COURT

Jasen, J.

On this appeal, we are asked to decide whether a trial court Judge has the power to dismiss a misdemeanor complaint on the grounds of “failure to prosecute” and “calendar control”. Although we do not question the general authority of the Trial Judge to control his calendar, we hold, nonetheless, that in exercising this authority, he may not dismiss a pending criminal proceeding for “failure to prosecute”.

These appeals involve the dismissal of misdemeanor complaints by Judges of the New York City Criminal Court. In each case, it was found that the prosecutor had failed to convert the complaint into an information within a period of time established by the court. In none of the cases, however, had the statutory speedy trial time period elapsed. The Appellate Term upheld the dismissals as proper exercises of the Judges’ discretion.

PEOPLE V DOUGLASS

Barry Douglass was arrested and charged with reckless endangerment in the second degree and harassment for allegedly tying a rope around complainant’s neck and dragging him along the ground for a distance of 80 feet. Defendant was directed to appear for arraignment on September 8, 1980. On that date, a misdemeanor complaint was sworn to by a police officer, based on information obtained from complainant. Douglass did not appear at his arraignment and a bench warrant was issued. The following day, Douglass voluntarily surrendered and the case was adjourned until October 6, 1980. Defendant was released on his own recognizance. When the parties appeared on October 6 and the People had not converted the misdemeanor complaint into an information by obtaining a supporting deposition from complainant, the charges were dismissed for “failure to prosecute”. Although the prosecutor explained that a corroborating affidavit had been sent to complainant a week earlier and that a response was expected, the court deemed the dismissal to be appropriate “to clear my calendar of such matters.” The records were then ordered sealed.

PEOPLE V JONES AND LOGAN

Robert Jones and Harmeen Logan were seen by two witnesses allegedly stealing an attaché case from a person on July 17, 1980 in a Manhattan subway station. The following day, a misdemeanor complaint jointly charging the defendants with petit larceny and criminal possession of stolen property in the third degree was sworn to by a police officer based on information supplied by the two witnesses.

Defendants were arraigned on July 18 and the case was adjourned until July 24 to allow the prosecutor to file supporting affidavits. Subsequent adjournments were requested by all parties and on August 12 the court papers were marked final for conversion. When the parties appeared on August 26 and the prosecutor had not yet converted the complaint to an information, the court dismissed the charges for “negligent process of cases”. Sealing of the records was ordered 31 days hence.

PEOPLE V BALDWIN AND ST. HALAIRE

Gregory Baldwin and Kevin St. Halaire were observed allegedly breaking into an automobile and stealing two suitcases on October 6, 1980. On the same day, misdemeanor complaints sworn to by a police officer based on information supplied by one witness to the event and two persons claiming ownership of property found in defendants’ possession were filed, charging defendants with two counts of petit larceny and two counts of criminal possession of stolen property in the third degree. Defendants were arraigned that day and released on their own recognizance. The cases were adjourned until November 12 for defense motions and for the People to file supporting depositions. On November 12, the prosecutor had not obtained the requisite supporting depositions and the court dismissed the charges for “failure to prosecute”. The records were then ordered sealed pursuant to CPL 160.50.

PEOPLE V LOPEZ AND CORDOVA

Emilio Lopez and Julio Cordova were observed and arrested by a police officer while allegedly attempting to steal a motorcycle on March 18, 1981. Defendants were released on their own recognizance and ordered to appear on April 14. On that date, defendants were arraigned and misdemeanor complaints, sworn to by a police officer, were filed, charging both defendants with attempted grand larceny in the third degree. An additional charge of possession of burglar tools was filed against Lopez. The cases were adjourned until May 11 and again until June 17 for defense motions. The court then ordered the prosecutor to provide a supporting deposition by June 2 or face dismissal of all charges on the June 17 adjourned date. When the deposition was not supplied by the prosecutor as ordered, the charges were dismissed for “failure to prosecute” and the records were ordered sealed.

PEOPLE V ACEVEDO

Gilberto Acevedo was arrested and charged by misdemeanor complaint, sworn to by a police officer based on defendant’s admissions, with endangering the welfare of a child and unlawful imprisonment in the second degree. The charges stemmed from an incident which occurred at 4:30 a.m. on September 10,1981, where defendant and two others allegedly tied an 11-year-old boy to a pillar at a local post office and then placed him in the trunk of an automobile and took him to a public park where they tied him to a see-saw. At defendant’s arraignment on September 11, the case was adjourned until October 7 and marked final for conversion. When the prosecutor was unable to produce the complainant on October 7, the court dismissed the charges for “failure to prosecute”.

In each of these cases, it is conceded that the statutory time period set forth in CPL 30.30, within which defendants must be brought to trial, had not elapsed. Nevertheless, Appellate Term affirmed the dismissals in the Douglass, Jones, Logan, Baldwin, St. Halaire, Lopez and Cordova cases “not on speedy trial grounds (CPL § 30.30) or ‘in furtherance of justice’ (CPL § 170.30, subd l[g]), but as unexceptionable exercises of discretion in the context of the court’s inherent authority to control its own processes and in the face of the prosecutor’s unsatisfactory explanation for his unpreparedness and failure to proceed [citations omitted].” Appellate Term also affirmed the dismissal in People v Acevedo, holding that “the court acted within its authority and within its discretion”. The court cited People v Douglass as support for its decision.

Inasmuch as the courts below had no authority — inherent, statutory or otherwise — to dismiss the subject charges for “failure to prosecute” or for “calendar control”, the orders of the Appellate Term must be reversed.

We note at the outset, however, that trial courts are vested with substantial power to control their calendars and our opinion today should not be read as holding, for example, that a court is obligated to grant every adjournment requested by a prosecutor simply because statutory or constitutional time limitations have not expired. Indeed, to so hold would not only place unnecessary burdens on the defendant and his attorney who would have to make unnecessary appearances, but would also be wasteful of judicial resources and would contribute to calendar congestion at a time when the volume of matters legitimately on the court calendars threatens to impair the proper administration of criminal justice. A system of open or reserved dockets is an example of how cases of unwarranted delay in prosecution can be dealt with properly. The cases are marked off the active calendar, subject to the right of the prosecutor upon oral application to have a case restored after filing the document, the absence of which led to the case being placed on the reserve calendar, or in other situations, after becoming ready to proceed, and so informing the court and the defendant.

It appears that the dismissals ordered below may have been intended to be final, on the merits and with prejudice. They were ordered unconditionally with no provision allowing for renewal, and they were intended, at least in part, to help alleviate the courts’ calendar congestion. It would seem to make little sense to presume that although the courts dismissed the instant proceedings in an effort to clear their calendars, they nevertheless intended to allow new proceedings to be renewed on the same charges whenever the District Attorney chose to do so. We also note that in five of the cases, the court ordered the records sealed. Inasmuch as CPL 160.50 provides for the sealing of records when a criminal action has been terminated in favor of the accused, it appears that the courts below, in ordering the records sealed in these cases, may have considered the subject proceedings to have been terminated in favor of the defendants. It is not necessary for present purposes, however, to decide, and we do not, whether the dismissals in these cases were intended to bar, or if allowed to stand would have had the effect of barring, reprosecution on the same charges. Whether these dismissals terminated all possible prosecution of the defendants on the underlying charges or only dismissed the present criminal proceedings with respect thereto is of no consequence for present purposes. The courts were without authority to do either.

Defendants’ central argument on these appeals is that trial courts have inherent power to control their calendars by dismissing misdemeanor complaints where the People have failed to prosecute the cases within a period of time deemed reasonable by the court. This argument is flawed for two reasons. First, courts at common law did not have inherent power to dismiss criminal charges for any reason; and, secondly, the Legislature has specifically addressed this issue in CPL 170.30 by setting forth, in an all inclusive manner, the grounds upon which a misdemeanor complaint may be dismissed; neither “failure to prosecute” nor “calendar control” is listed as a permissible ground.

An examination of the historical underpinnings of the courts’ power to dismiss criminal charges is necessary to deflate the myth that courts have inherent power to issue such orders under the guise of “failure to prosecute” merely to reduce a backlog of cases.

At early common law, the dismissal of criminal proceedings before a verdict was reached was accomplished by entry of a nolle prosequi. (See Commissioners’ Report on Code of Criminal Procedure [1850], ch VII, p 341.) The Attorney-General, however, was the only official who possessed this power. (People v McLeod, 25 Wend 483, 572.) Even the courts had no power to compel the entry of a nolle prosequi. (People v McLeod, supra, at pp 572-573.) This power was eventually delegated to District Attorneys who represented the Attorney-General in nearly all criminal proceedings. However, fearing that the District Attorneys might abuse this power, the Legislature, in 1828, enacted a statute making it unlawful for a District Attorney to enter a nolle prosequi upon any indictment or in any way discontinue a criminal proceeding without leave of the court. (People v McLeod, supra, at pp 572-573.)

It is interesting to note that it was the fear that too many criminal proceedings would be dismissed by District Attorneys without justification that prompted the Legislature, for the first time, to authorize the courts to intercede in this process. Accordingly, the courts were only granted a veto power against a prosecutor’s decision to discontinue a criminal proceeding, not a positive power to compel a discontinuance. (People v Bennett, 49 NY 137,141; People v McLeod, supra, at p 573; Commissioners’ Report on Code of Criminal Procedure [1850], ch VII, p 341.) This practice was carried through subsequent legislation without change. (See Rev Stat of NY [1830], part IV, ch II, tit IV, § 54; Rev Stat of NY [1845], part IV, ch II, tit IV, § 54; Rev Stat of NY [1852], part IV, ch II, tit IV, § 56; Rev Stat of NY [1858], part IV, ch II, tit IV, § 56; Rev Stat of NY [1875], part IV, ch II, tit IV, § 56.)

In 1850, the Commissioners on Practice and Pleading submitted to the Legislature an extensive report concerning an integrated Code of Criminal Procedure. In chapter VII of the report, captioned “Dismissal of the Action, Before or After Indictment, For Want of Prosecution, Or Otherwise”, the commissioners commented on the existing practice with respect to the courts’ inability to dismiss criminal proceedings for failure to prosecute. The commissioners opined that: “This chapter is intended to remedy, what the Commissioners deem defects in the existing practice, productive not only of great inconvenience, but of flagrant injustice. When a defendant is held to answer, or is indicted, there is now no mode of his compelling the prosecution to proceed to trial, or his being relieved from the indictment, in the event of their failure to do so. Until the attorney-general sees fit to exercise his power to enter a nolle prosequi, or the district attorney to exert his more limited authority, of applying to the court for permission to do so, the indictment may be kept forever suspended over the head of the defendant. The only remedy he can obtain, after months, or even years, of inexcusable neglect to bring him to trial, is by an order of the court, discharging him either upon bail or upon his own recognizance.” (Commissioners’ Report on Code of Criminal Procedure [1850], ch VII, p 341 [emphasis supplied].) It should be abundantly clear, therefore, that there was never any inherent power vested in the courts to dismiss a criminal prosecution for “failure to prosecute”, whether it was to clear a court’s calendar or to protect a defendant from unnecessarily protracted prosecution. Indeed, it was not until 1850 that the first organized effort was made to obviate the injustice to defendants which resulted from a prosecutor’s refusal or inadvertent failure to bring a case to trial. In that year, the Commissioners on Practice and Pleading recommended that the Legislature enact statutes abolishing nolle prosequi and shifting the power to dismiss criminal proceedings from the Attorney-General to the courts. Their proposed enactments provided as follows:

“§ 739. The court may, either of its own motion, or upon the application of the district attorney, and in furtherance of justice, order an action, after indictment, to be dismissed; but in that case, the reasons of the dismissal must be set forth in the order which must be entered upon the minutes.

“§ 740. The entry of a nolle prosequi is abolished; and neither the attorney general, nor the district attorney, can discontinue or abandon a prosecution for a public offence, except as provided in the last section.”

It is important to note, however, that the commissioners’ proposals required that a dismissal ordered by the court on its own motion be “in furtherance of justice”.

Nevertheless, the commissioners’ recommendations were ignored by the Legislature until the enactment of the Code of Criminal Procedure in 1881. Section 671 of the original version of the code read as follows: “Court may order indictment to be dismissed. — The court may, either of its own motion, or upon the application of the district attorney, and in furtherance of justice, order an action, after indictment, to be dismissed.”

' Section 672 provided that: “The entry of a nolle prosequi is abolished; and neither the attorney-general, nor the district attorney, can discontinue or abandon a prosecution for a crime, except as provided in the last section.” This is the first time that the courts of this State were given the power to dismiss a criminal proceeding on their own motion without the approval of either the Attorney-General or the District Attorney.

Consequently, it seems clear that the courts never had inherent power to dismiss, sua sponte, a criminal prosecution for any reason, be it “calendar control”, “failure to prosecute” or otherwise, until 1881, and that power was limited to situations where the court found such dismissal to be in furtherance of justice. The rule as set forth in section 671 of the Code of Criminal Procedure continued unchanged until the Legislature, in 1927, added the additional requirement that a court ordering a dismissal in furtherance of justice file, as a public record, a written statement of its reasons for dismissing.

When the Criminal Procedure Law was enacted in 1970, the Legislature, for the first time, chose to treat dismissals of indictments (CPL 210.20) separate from dismissals of misdemeanor complaints (CPL 170.30). CPL 170.30, which speaks directly to the issue raised on this appeal, provides seven grounds for dismissal of a misdemeanor complaint. Nowhere in the statute is “failure to prosecute” or “calendar control” mentioned as a ground for dismissal. Hence, it follows that inasmuch as the courts did not possess inherent power to order dismissals of the complaints, nor acquired such authority from the Legislature, the accusatory instruments at issue in these appeals should not have been dismissed.

This is all the more obvious when one recognizes that the CPL is an integrated and comprehensive system of laws which was carefully designed to “protect individual freedoms, to safeguard the public and to promote respect for law and the legal process.” (Governor’s Memorandum, McKinney’s Session Laws of NY, 1970, p 3140.) Thus, it is not for the trial courts to depart from the clear wording of CPL 170.30 and adopt, ipse dixit, a rule which empowers them to dismiss criminal proceedings on grounds, such as “failure to prosecute” and “calendar control”, which the Legislature never authorized. While we recognize that the New York City Criminal Court calendars are seriously overburdened, it is not for those courts to attempt to solve the problem by simply dismissing certain of those cases without any authorization for doing so. To condone such a practice would be to approve of a Judge-created rule which allows persons accused of criminal wrongdoing to be released in the unfettered discretion of the trial court simply because the court is overburdened with cases. This would not only be an abdication of the judiciary’s responsibility to safeguard the public and promote respect for the law, but would also create a situation whereby a trial court’s dismissal, rendered without consideration of any established guidelines, would be incapable of meaningful appellate review.

Moreover, we do not believe that there is a need to extend to the trial courts the power to dismiss criminal proceedings for “failure to prosecute” in order to protect defendants from unnecessarily protracted prosecution. Indeed, the Legislature has specifically addressed this problem by enacting provisions requiring dismissal of charges when the prosecution is untimely (CPL 170.30, subd 1, par [d]; 30.10) or when the defendant has been denied the right to a speedy trial (CPL 170.30, subd 1, par [e]; 30.30). Defendants may also avail themselves of constitutional protections. (See Moore v Arizona, 414 US 25; People v Winfrey, 20 NY2d 138; see, also, People v Staley, 41 NY2d 789, 791.) Furthermore, if the court believes that dismissal is warranted in furtherance of justice, CPL 170.30 (subd 1, par [g]) and CPL 170.40 specifically authorize the court to so dismiss after considering the 10 factors set forth in the latter statute. In light of the comprehensive scheme established in the CPL for acting upon motions to dismiss and the extensive constitutional protections available, the dismissals ordered by the courts below were clearly unauthorized and unnecessary, notwithstanding the Trial Judges’ sincere belief of unwarranted delay in prosecution.

Defendants’ reliance on cases such as People v Wingard (33 NY2d 192), People v De Rosa (42 NY2d 872), People v Osgood (52 NY2d 37), People v Szychulda (57 NY2d 719) and People v Rickert (58 NY2d 122) is misplaced. All of these cases are readily distinguishable from the ones before us. The court in Wingard dismissed the complaint in the interests of justice pursuant to CPL 170.40. De Rosa held only that in the circumstances of that case, it was an abuse of discretion not to have granted the People a short trial adjournment. In Osgood, the issue raised was whether the time period immediately following a dismissal for failure to prosecute was properly chargeable to the People under CPL 30.30. Thus, the question of the propriety of that dismissal was never addressed by this court. The dismissal in Szychulda was statutorily authorized pursuant to CPL 240.70 (subd 1) as a sanction against the police department for failing to comply with a properly issued subpoena. Finally, that part oí Rickert which speaks of the court’s inherent power to dismiss in the interests of justice has nothing whatsoever to do with defendants’ claim here that the courts have inherent power to dismiss for “failure to prosecute” or in the interest of “calendar control”. In any event, in light of the fact that the Legislature has specifically authorized the courts to dismiss in furtherance of justice, that part of the opinion is merely dicta.

For all of the above reasons, the orders of Appellate Term should be reversed, the complaints reinstated and the cases remitted for further proceedings.

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

In People v Douglass, Jones, Logan, Baldwin, St. Halaire, Lopez and Cordova: Orders reversed, complaints reinstated and cases remitted to the Criminal Court of the City of New York, New York County, for further proceedings on the complaints.

In People v Acevedo: Order reversed, complaint reinstated and case remitted to the Criminal Court of the City of New York, New York County, for further proceedings on the complaint.

      . An information may serve as a basis for both the commencement of a criminal action and for the prosecution thereof. (CPL 100.10, subd 1.) A misdemeanor complaint, however, may serve as a basis for the commencement of a criminal action, but cannot serve as a basis for prosecution unless the defendant waives prosecution by information. (CPL 100.10, subd 4.) A misdemeanor complaint can be converted to an information if it is supplemented by an appropriate supporting deposition. (CPL 170.65, subd 1.)

      . For a similar discussion of the courts’ lack of inherent power to dismiss civil actions for failure to prosecute, see Cohn v Borchard Affiliations (25 NY2d 237,247-248).

      . Nolle prosequi is commonly defined as “a formal entry on the record by the prosecuting officer by which he declares that he will not prosecute the case further.” (Black’s Law Dictionary [5th ed], p 945.)

      . Section 54 (part IV, ch II, tit IV) of the Revised Statutes of New York (1829), provided in full that: “It shall not hereafter be lawful for any district attorney to enter a nolle prosequi upon any indictment, or in any other way to discontinue or abandon the same, without the leave of the court having jurisdiction to try the offence charged, entered in its minutes.”

      . The statute provides as follows:
      “1. After arraignment upon an information, a simplified information, a prosecutor’s information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that: “(a) It is defective, within the meaning of section 170.35; or
      “(b) The defendant has received immunity from prosecution for the offense charged, pursuant to sections 50.20 or 190.40; or
      “(c) The prosecution is barred by reason of a previous prosecution, pursuant to section 40.20; or
      “(d) The prosecution is untimely, pursuant to section 30.10; or “(e) The defendant has been denied the right to a speedy trial; or “(f) There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged; or
      “(g) Dismissal is required in furtherance of justice, within the meaning of section 170.40.”

      . It is noteworthy that in sharp contrast to the Legislature’s failure to authorize dismissals for failure to prosecute criminal actions is the specific grant of such power to the courts with respect to civil matters. (See CPLR 3216.)