text:
    The People of the State of New York, Appellant, v S. Samuel Di Falco, Respondent.
    Argued April 26, 1978;
    decided May 31, 1978

      POINTS OF COUNSEL

      John F. Keenan, Deputy Attorney-General and Special Prosecutor (Thomas A. Duffy, Jr., of counsel), for appellant.
    In the absence of a finding by the court below that the integrity of the Grand Jury proceeding was impaired to the possible prejudice of defendant, a dismissal of the indictment was improper. (Matter of Dondi v Jones, 40 NY2d 8; People v Minet, 296 NY 315; People ex rel. Hamway v Truesdell, 261 App Div 824; People v Karney, 23 AD2d 924; People v Zara, 44 Misc 2d 698; People v Hopkins, 182 Misc 313; People v Dorsey, 176 Misc 932; People v Tru-Sport Pub. Co., 160 Misc 628; People v Percy, 45 AD2d 284, 38 NY2d 806.)

      Joseph J. Marcheso and Philip M. Kazin for respondent.
    I. There is no right to appeal from the order of the court below; nor does the Court of Appeals have jurisdiction to hear this appeal. The appeal should be dismissed. (Matter of Jones, 181 NY 389; People v Crimmins, 38 NY2d 407; People v Mackell, 36 NY2d 964, 40 NY2d 59; People v Rinaldi, 34 NY2d 843; People v Hattemer, 3 NY2d 939.) II. Where an unauthorized prosecutor presents a case to a Grand Jury, the indictment should be dismissed on jurisdictional grounds pursuant to People v Sam (49 AD2d 732 [1st Dept, 1975]). (Dondi v Jones, 40 NY2d 8.) III. The indictment was properly dismissed pursuant to CPL 210.35 (subd 5). There is a possibility of prejudice to the accused wherever an unauthorized Special Prosecutor presents the case to the Grand Jury. Accordingly, it was unnecessary to examine the Grand Jury minutes or to make specific findings of possible prejudice. (People v Percy, 45 AD2d 284, 38 NY2d 806; People v Scannell, 36 Misc 40; People v Welz, 70 Misc 183; People v Dorsey, 176 Misc 932; People v Minet, 296 NY 315; People v La Brecque, 198 Misc 470; People v Glen, 173 NY 395; People v Krstovich, 72 Misc 2d 90; United States v Crispino, 392 F Supp 764, 517 F2d 1395; United States v Wrigley, 392 F Supp 9.) IV. Where appellant’s arguments are raised for the first time on appeal, this court should not consider them. (People v Scandore, 3 NY2d 681; People v Melfi, 23 AD2d 681; Farr v Newman, 14 NY2d 183; Smith v Stewart, 45 AD2d 853, 38 NY2d 747; Board of Trustees of Vil. of Lansing v Pyramid Cos., 51 AD2d 414.) V. There was a sufficient showing in the court below of possible prejudice to the accused and impairment of the integrity of the proceedings. The indictment was properly dismissed pursuant to CPL 210.35. It would be improper to reverse the order of dismissal merely because the court did not make explicit fact findings on issues conceded by the People. (People v Percy, 45 AD2d 284.)
   OPINION OF THE COURT

Per Curiam.

The Special State Prosecutor obtained a two-count indictment from the Grand Jury of the Extraordinary Special and Trial Term of New York County accusing defendant of the misdemeanors of (1) official misconduct and (2) conspiracy to commit official misconduct. The defendant moved in the Appellate Division pursuant to subdivision 2 of section 149 of the Judiciary Law, to dismiss the indictment on the ground that the Special Prosecutor lacked jurisdiction to investigate or prosecute this matter since it does not involve corrupt acts by public officials relating to the enforcement of law or the administration of criminal justice, or, in the alternative, on the ground that the Grand Jury proceedings were defective since the Special Prosecutor was a person unauthorized to be in its presence. Holding that the Special Prosecutor was not a proper person before this Grand Jury, the Appellate Division dismissed the indictment and transferred the matter to the District Attorney of New York County with leave to apply for permission to submit the charges to another Grand Jury. We affirm.

The basic issue on this appeal is whether the presence of an unauthorized prosecutor before a Grand Jury is sufficiently likely to result in prejudice to the defendant that dismissal of the indictment is appropriate. We find that the crucial nature of the prosecutor’s role vis-á-vis the Grand Jury, particularly in view of his discretionary authority, mandates a finding that prejudice to the defendant is likely to result from the presence of an unauthorized prosecutor before the Grand Jury.

In any matter pending before an Extraordinary Special or Trial Term, subdivision 2 of section 149 of the Judiciary Law authorizes a defendant to move the Appellate Division to dismiss the indictment (see People v Sam, 49 AD2d 732; Matter of Moritt v Nadjari, 46 AD2d 784) upon proper grounds under the Criminal Procedure Law. An indictment may be dismissed where the Grand Jury proceedings are defective (CPL 210.20, subd 1, par [c]) in that they fail "to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35, subd 5). Pursuant to article 190 only authorized persons may be present during Grand Jury proceedings (CPL 190.25, subd 3).

The Special Prosecutor concedes that he lacked jurisdiction to prosecute the matter covered by the indictment because his grant of authority (Executive Order 55 [9 NYCRR 1.55]) is limited to those cases dealing with corruption relating strictly to the criminal justice process and does not embrace the judicial system in general or the civil justice system in particular (Matter of Dondi v Jones, 40 NY2d 8, 18-19). Because the instant matter involves only the civil justice system, appellant. was completely without authority to act. The Special Prosecutor, as an arm of the Attorney-General, requires specific authority to appear before the Grand Jury (see People v Rallo, 39 NY2d 217, 221-223; People v Dorsey, 176 Misc 932, 942; People v Welz, 70 Misc 183). Simply stated, where a prosecutor lacks the requisite authority he is not a proper person before the Grand Jury and those proceedings conducted by him before the Grand Jury are defective.

The Special Prosecutor, lacking the necessary jurisdictional authority, was clearly an unauthorized person before the Grand Jury, but he nonetheless contends that dismissal is inappropriate. Before a dismissal may be granted, a defect in the Grand Jury proceedings must operate to impair the integrity of the proceedings and potentially prejudice the defendant (CPL 210.35, subd 5) and the appellant argues that his presence neither offended the Grand Jury’s integrity nor created a possibility of prejudice to the defendant. It is also urged that before granting a dismissal of the indictment the Appellate Division should have reviewed the Grand Jury minutes to determine whether anything occurred which might have created the possibility of prejudice, and that if nothing unusual is found the motion should be denied.

In determining whether the presence of an unauthorized prosecutor may create a possibility of prejudice, it is necessary to consider the role of a prosecutor before the Grand Jury. Generally, the District Attorney is the prosecutorial officer with the responsibility to conduct all prosecutions for crimes and offenses cognizable by the courts of the county in which he serves (County Law, § 700, subd 1). The District Attorney has broad discretion in determining when and in what manner to prosecute a suspected offender (see United States v Lovasco, 431 US 783; People v Bowman, 88 Misc 2d 50; Pitler, New York Criminal Practice under CPL, § 5.27, p 267; see, also, People v Harding, 44 AD2d 800). When the alleged activity constitutes a misdemeanor, as in the case before us, he has complete discretion to determine whether available evidence should be submitted to a Grand Jury (CPL 190.55, subd 2, par [c]) or, perhaps, to bypass the Grand Jury and have an accusatory instrument filed. During the actual proceedings, the legal adviser of the Grand Jury is the District Attorney and legal advice from any other source is improper (CPL 190.25, subd 6; see Matter of Hynes v Moskowitz, 44 NY2d 383. The District Attorney determines the competency of witnesses to testify (CPL 190.30, subd 5), and must instruct the jury on the legal significance of the evidence (CPL 190.30, subd 6). He, in effect, determines what witnesses to present to that body and who should be excluded. These duties and powers, bestowed upon the District Attorney by law, vest that official with substantial control over the Grand Jury proceedings, requiring the exercise of completely impartial judgment and discretion.

Given the breadth and importance of the duties placed upon the District Attorney in Grand Jury proceedings, it is no small matter when another acts in this capacity. In certain specifically authorized areas, a special prosecutor may so act, but the powers and duties imposed by law upon the District Attorney, that require the exercise of judgment and discretion in their performance, cannot be delegated to another without express legislative authority. When an improper person presents evidence to the Grand jury, he has in essence substituted his judgment and decisions for those of the duly authorized District Attorney. In such a situation the integrity of the Grand Jury has been impaired for it is the sound theory and policy of our criminal procedure that only the regularly constituted officials upon whom the law devolves the power, may officiate in aid of the Grand Jury (People v Tru-Sport Pub. Co., 160 Misc 628, 636). Likewise the imposition upon the duties and responsibilities of the District Attorney by the presence of an unauthorized prosecutor is such that there exists considerable likelihood of prejudice to the defendant. Indeed, the District Attorney may choose not to pursue the matter at all.

Subdivision 2 of section 313 of the former Code of Criminal Procedure provided for automatic dismissal of the indictment when an unauthorized person appeared before the Grand Jury (People v Minet, 296 NY 315). As originally drafted the Criminal Procedure Law required a showing of actual prejudice before an indictment could be dismissed as the result of defective Grand Jury proceedings (see Proposed CPL 110.40, subd a, par [e] [1967]; Pitler, New York Criminal Practice Under CPL, § 8.6, p 161 of 1976 Cumulative Supplement), but as enacted the section requires only the possibility of prejudice (CPL 210.35, subd 5). Thus on this appeal we need determine only whether the presence of an unauthorized prosecutor may sufficiently create the possibility of prejudice to warrant dismissal. In view of the role played by the prosecutor in Grand Jury proceedings, as discussed above, the presence of one unauthorized must, at the very least, be deemed to create the possibility of prejudice, as a matter of law. Since a finding of actual prejudice is not required under the Criminal Procedure Law, a review of the Grand Jury minutes would be unnecessary. Our holding today is not intended to suggest that in other circumstances the mere showing of a defect in the Grand Jury proceedings is sufficient to demonstrate the possibility of prejudice. Where some other type of defect is alleged, a review of the Grand Jury minutes might be necessary in order to demonstrate the possibility of prejudice. We hold only that where an unauthorized prosecutor conducts the proceedings, prejudice to the defendant may result and the indictment should be dismissed.

Secrecy is a vital requisite of Grand Jury proceedings (CPL 190.25, subd 4) and its actions and deliberations must be "uninfluenced by the presence of those not officially and necessarily connected with it” (People v Minet, 296 NY 315, 323, supra). The unauthorized appearance of this prosecutor infringes upon the secrecy requirement, thereby, impairing the integrity of the proceeding.

When an indictment is dismissed because an unauthorized prosecutor presented the matter to the Grand Jury, the court may in the exercise of its discretion, transfer the matter, as distinguished from the indictment, to the appropriate District Attorney and authorize the People to seek leave to submit the charge or charges to a proper Grand Jury, if so advised (CPL 210.20, subd 4). It should be noted that the Appellate Division took such action in the instant case.

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

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.

Order affirmed.

       An order of the Appellate Division dismissing an indictment made pursuant to subdivision 2 of section 149 of the Judiciary Law is appealable by the People to the Court of Appeals upon permission from a Judge of this court or of the Appellate Division (see People v Hattemer, 3 NY2d 939; People v Rinaldi, 34 NY2d 843).


source: Caselaw Access Project

author: Gabrielli, J.

license: Public Domain

text:
    W. L. Development Corp., Appellant, v Trifort Realty, Inc., et al., Defendants, and Ace Hardwood Flooring Co., Inc., Respondent.
    Submitted March 21, 1978;
    decided May 11, 1978

      POINTS OF COUNSEL

      Norman S. Abrams for appellant.
    I. The Lien Law (§ 13, subd [1]) does not invalidate plaintiff-appellant’s mortgage nor deprive it of priority over a subsequently filed mechanic’s lien. (City & County Sav. Bank v Oakwood Holding Corp., 88 Misc 2d 198; Ausable Chasm Co. v Hotel Ausable Chasm & Country Club, 263 App Div 486; United States Mtge. & Trust Co. v Eastern Iron Co., 120 App Div 679, 195 NY 589; R. G. Equip. Corp. v Gursha, 60 Misc 2d 240; Matter of 938 Hempstead Turnpike Corp., 200 F Supp 692; Alberene Stone Co. v Grinnell Co., 153 Misc 812, 244 App Div 711; People ex rel. Mason v McClave, 99 NY 83; Buffalo Farm Exch. v Heinz, 235 App Div 277.) II. The Lien Law does not deprive plaintiff-appellant as mortgagee of its common-law priority over a subsequently filed mechanic’s lien. (Glens Falls Portland Cement Co. v Schenectady County Coal Co., 163 App Div 757; Dinkel v Roman Catholic Church of St. Teresa, 150 App Div 848; Behrer v McMillan, 114 App Div 450, 191 NY 530; Hudson Riv. Blue Stone Co. v Huntington, 143 App Div 99; Betcher v

      Rademacher, 35 Misc 2d 693; Matter of 938 Hempstead Turnpike Corp., 200 F Supp 692; Matter of Corbin-Kellogg Agency v Tasker, 248 App Div 58; City & County Sav. Bank v Oakwood Holding Corp., 88 Misc 2d 198.) III. Plaintiff-appellant’s mortgage meets all the statutory conditions to entitle it to priority over respondent’s mechanic’s lien.

      Gerald Zisholtz for respondent.
    I. The so-called bond and mortgage dated January 28, 1974 listing plaintiff as mortgagee has no priority over the mechanic’s lien filed by defendant, Ace Hardwood Flooring Co., Inc. (Clio Realty Corp. v Heflam Bldg. Corp., 227 App Div 439; Monroe Sav. Bank v First Nat. Bank of Waterloo, 50 AD2d 314; Wahle-Phillips Co. v Fitzgerald, 225 NY 137.) II. Plaintiff’s mortgage did not comply with section 13 of the Lien Law. (Monroe Sav. Bank v First Nat. Bank of Waterloo, 50 AD2d 314; Clio Realty Corp. v Heflam Bldg. Corp., 227 App Div 439; Friedman v Handelman, 300 NY 188.) III. The nature of an instrument is determined by the intention of the parties, not its form. (Goetting v Weber, 71 App Div 503; Nestell v Hart, 202 NY 280; Shattuck v Bascom, 105 NY 39; Cagliostro v Galgano, 69 Misc 321.) IV. Plaintiff, by its so-called mortgage, sought to circumvent the Lien Law and gain an illegal advantage. (HNC Realty Co. v Golan Hgts. Developers, 79 Misc 2d 696; Claflin v Boorum, 122 NY 385.) V. Plaintiff does not come into a court of equity with clean hands and should be denied relief. (Matter of Corbin-Kellogg Agency v Tasker, 248 App Div 58; I. Burack, Inc. v Simpson Factors Corp., 21 AD2d 481, 16 NY2d 604; Vogel & Binder Co. v Montgomery, 133 App Div 836.) VI. The action to foreclose the mortgage is premature. VII. Plaintiff’s alleged bond and mortgage does not qualify as a building loan so as to justify priority over a mechanic’s lien. (Gillet v Bank of Amer., 160 NY 549; Evelyn Bldg. Corp. v City of New York, 257 NY 501; O’Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50; St. Regis Paper Co. v Hubbs & Hastings Paper Co., 235 NY 30; J. & R. Lamb v Norcross Bros. Co., 208 NY 427; Friedman v Handelman, 300 NY 188; Smyth Constr. Corp. v Brooks, 75 Misc 2d 358.)
   OPINION OF THE COURT

Gabrielli, J.

The issue on this appeal is whether plaintiff’s prior recorded mortgage for materials and labor provided for the construetion of streets, road drainage, curbs, sewer lines and gas and electric service mains in a real estate subdivision has priority over a subsequently filed mechanic’s lien.

The property in question was originally owned by Muriel White and Sherry Linder and was subdivided into 77 lots in section 3 of Harbor Trees in Kings Park, Smithtown, New York. On July 30, 1973 White and Linder contracted to sell 27 lots to plaintiff corporation, which is wholly owned by their husbands, Samuel Linder and Stanley White, and in addition contracted to sell the remaining 50 lots to defendant mortgagor, Trifort Realty. All of the parties contemplated construction of one-family residences on their lots and it was known that Smithtown would not issue certificates of occupancy until improvements for the entire tract, such as roads, curbings, drainage and sewer lines had been installed. Pursuant to contracts executed by all parties on July 30, 1973, plaintiff obligated itself to install such improvements in the streets for the entire 77 lots and Trifort obligated itself to pay 50/77ths of the cost thereof, with a ceiling of $270,000. In accord with this agreement and simultaneously with the execution of the contract to purchase the land, W. L. Development and Trifort signed a written agreement which declared that W. L. Development "is about to commence construction of all off-site public improvements within the area shown on the Map of Harbor Trees, Sec. 3, which said improvements will enure to the benefit of [Trifort] and W. L. Development” and that "the parties hereto wish to provide by written agreement for the construction and installation of said public improvements and for the payment by [Trifort] to W. L. for a proportionate share of the cost of said work.”

On January 28, 1974, pursuant to the contract of purchase, Trifort acquired title to the 50 lots and simultaneously executed a bond and mortgage to W. L. Development in the sum of $270,000 to secure payment of its share of the improvements. The mortgage was recorded on February 11, 1974. When Trifort received title to the 50 lots, its share, as of that time, of the cost of the off-site improvements which W. L. Development had already provided for Trifort’s 50 lots under the July 30, 1973 agreement, was $52,643. By February, 1975 W. L. Development’s work under the contract was substantially completed and Trifort’s maximum cost obligation had been reached.

In November, 1974 Ace Hardwood Flooring Co. began installing hardwood flooring in the houses Trifort was building and it continued to do so until September 26, 1975. On December 3, 1975 Ace filed a mechanic’s lien for $26,107.50 against the lots, constituting the amount still owed by Trifort for work completed. Meanwhile in October, 1975 Trifort failed to make its quarterly payment to W. L. Development under the mortgage and the instant foreclosure action was instituted. The principal balance remaining on the mortgage at the time of trial was $130,950. Ace opposed the foreclosure arguing that the bond and mortgage constituted a subterfuge to avoid the mandates of the Lien Law and illegally granted plaintiff a priority over other mechanics’ lienors who should either have a priority or be on a parity with plaintiff. Ace counterclaimed for foreclosure of its mechanic’s lien, urging that the bond and mortgage are invalid as to it.

Special Term held that a mortgage may be validly given to secure future advances or future obligations (Knapp v McGowan., 96 NY 75; Truscott v King, 6 NY 147) and that a prior recorded mortgage has priority over a subsequently filed mechanic’s lien (Lien Law, § 13, subd [1]). Although section 7 of the Lien Law provides that a mortgage "made by an owner of real property, for the purpose of avoiding the provisions of this article, with the knowledge or privity of the person to whom the conveyance is made or in whose favor the mortgage * * * is created, shall be void and of no effect as against a claim on account of the improvement of such real property, existing at the time of the making of the conveyance or the creation of such mortgage” the court found that Ace’s claim was not in existence at the time the mortgage was given and thus section 7 was inapplicable. The court noted that section 7 proscribes inequitable or preferential treatment among lienors at a time when their claims are coexistent and both maker and receiver of the mortgage have knowledge of the existence of other claims and no such situation exists here.

The Appellate Division reversed the judgment, with one Justice dissenting, on the ground that a supplier of materials and labor should not be able to obtain a priority for its claim by use of a mortgage as compared to a mechanic’s lien when the Lien Law establishes a policy that all such "liens shall be on a parity” (Lien Law, § 13, subd [1]). The Appellate Division reasoned that there was no authority for the use of an "open-ended mortgage device” (58 AD2d 377, 383) to secure priority over mechanics’ lienors. Recognizing the validity of mortgages used for securing future money advances, the court distinguished them on the ground that they involved money whereas the present mortgage secured payments due for future work. Viewing the recorded instrument as something other than a proper mortgage, the court argued that it was analogous to a mechanic’s lien and should be treated, for priority purposes, as if it were such a lien. Under section 13 of the Lien Law, "[p]ersons shall have no priority on account of the time of filing their respective notices of liens, but all liens shall be on a parity”. Reasoning that the mortgage sought to secure payment for improvements of the real property and that such materials and labor are lienable improvements within the meaning of the Lien Law, the court treated the mortgage as a mechanic’s lien and placed plaintiff’s interest on a parity with Ace’s lien. In so holding, however, the Appellate Division affirmed Special Term’s finding of fact that Trifort made no payments prior to the time when under the contract those payments became due, nor did it enter into the mortgage agreement with any intent of avoiding the provisions of the Lien Law. It was clearly established that the mortgage was entered into prior to any mechanics’ claims on the property. Thus, the plaintiff’s claim was not void as to Ace under section 7 of the Lien Law.

In analyzing the case before us, we must first determine whether the services performed by plaintiff are covered by the Lien Law. Section 3 of the Lien Law provides, in pertinent part, that a "contractor, subcontractor, laborer. * * * who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof * * * shall have a lien”. Subdivision 4 of section 2 defines improvements as including "the demolition, erection, alteration or repair of any structure upon, connected with, or beneath the surface of, any real property and any work done upon such property or materials furnished for its permanent improvement, and shall also include any work done or materials furnished in equipping any such structure with any chandeliers, brackets or other fixtures or apparatus for supplying gas or electric light and shall also include the drawing by any architect or engineer or surveyor, of any plans or specifications or survey, which are prepared for or used in connection with such improvement”. The question is whether the construction of streets, curbs, road drainage, sewer mains, and gas and electric service mains, constitutes an improvement of the real property under the definition quoted above. It has been said that the grading and laying out of roadways and sidewalks on a tract intended ultimately to be used for building lots constitutes an improvement of the remaining property (Jensen, Mechanics’ Lien Law of State of New York [4th ed], § 17). Similarly, in Kenney v Apgar (93 NY 539, 548-549) this court has held that a sidewalk built beyond the owner’s property line on an adjoining street was nevertheless a lien-able improvement, reasoning that the property owner had a special interest affecting his property in the improvement (see, also, Johnson v Ocean View Cemetery, 198 App Div 854). To the contrary is Matter of Palumbo (225 NYS2d 98) in which the court found that repair work done at the request of a property owner on the street abutting his property did not constitute a lienable improvement since that work was viewed as benefiting the public rather than the private property. For the reasons stated below we find Palumbo unconvincing and prefer the approach adopted in Matter of Bradwood Realty v Transit Paving (43 Misc 2d 374) where it was held that a mechanic’s lien was properly filed against lots in a subdivision for improvements consisting of streets, storm and sanitary sewers, water mains and street curbings because such improvements were intended to benefit the contracting owner.

Courts in other jurisdictions have found similar construction work to give rise to mechanics’ liens (Christ Constr. Co. v Willete Assoc., 47 NJ 473; Ladue Contr. Co. v Land Dev. Co., 337 SW2d 578 [Mo]; Mitford v Prior, 353 F2d 550; 36 Am Jur, Mechanics’ Liens, § 64). There can be no dispute that the improvements provided by plaintiff are necessary to make the homes in the subdivision habitable in a manner consistent with reasonable standards of comfort and health and that they enhance the value of property. Indeed, the improvements are required before certificates of occupancy would issue. As was so aptly stated in Ladue Contr. Co. v Land Dev. Co. (337 SW2d 578, 585 [Mo], supra): "It is much too late in these modern times to embrace argument that the [streets, curbs, gutters and sanitary sewers] ought not to be treated as essential to the comfortable and convenient use of the dwellings. * * * [D]wellings without streets for ingress and egress * * * or without efficient sewer systems are just no longer constructed in urban areas. To hold that [these] items are outside the terms of the lien statute would be to turn the clock back to another century.”

Our statute defines an improvement as including the "erection, alteration, or repair of any structure * * * connected with * * * any real property” (Lien Law, § 2, subd 4). Giving the statute a liberal interpretation, as we must (Lien Law, § 23), the construction work performed by plaintiff clearly constitutes an improvement. The work was not only "connected with” but necessary to the subdivision plan and the individual lots were benefited thereby.

On the record before us it is unclear whether the roadbeds upon which plaintiff’s work was performed are owned by the original grantees, or are part of each subdivided lot or have been dedicated to Smithtown. Even assuming that the roadbeds were owned by someone other than Trifort, the work still constitutes an improvement of Trifort’s land since it enhanced the value of that property and was necessary to make the homes being constructed suitable for habitation (see Kenney v Apgar, 93 NY 539, 548, supra; Christ Constr. Co. v Willete Assoc., 47 NJ 473, supra; 36 Am Jur, Mechanics’ Liens, § 64). The fact that the work may have been done on land owned by someone other than Trifort in no way alters our conclusion that, under these circumstances, the work constitutes an improvement made at the request of and under contract between Trifort and plaintiff.

Now we must turn to the issue whether a mortgage given to secure payment for future work pursuant to a written construction contract constitutes a valid mortgage. There can be no doubt as to the validity of mortgages to secure future advances or liabilities as this has become a recognized form of security frequently used in the transaction of business (Ackerman v Hunsicker, 85 NY 43, 47; Knapp v McGowan, 96 NY 75, 86, supra; 3A Warren’s Weed New York Real Property, Mortgages, § 1.05; Rasch, Real Property Law and Practice, § 1702). The Appellate Division distinguished this rule on the ground that it covers future loans and advances involving the receipt of money and not money due on account for the performance of work in the future. This distinction is far too tenuous to be established as a rule of law. The mere fact that the mortgagee provides both work and financing should not place him in a lesser position than a banker who provides financing only, which would be used to pay for work performed by another. Although the mortgagee serves both as banker and contractor this should not diminish his right to take a valid mortgage.

A mortgage is the conveyance of an interest in property intended by the parties at the time of its making to be security for the payment of money or the doing of some prescribed act (Sullivan v Rosson, 223 NY 217, 224; Burnett v Wright, 135 NY 543; Trimm v Marsh, 54 NY 599; 3A Warren’s Weed New York Real Property, Mortgages, § 1.01; Rasch, Real Property Law and Practice, §§ 1681, 1682). In the present case we have such a conveyance, an agreement between the parties and an obligation to pay money in consideration for the performance of a prescribed act which was fully performed. There can be no doubt that the security interest involved in this case is indeed a valid mortgage.

Likewise, nothing in the Lien Law itself prohibits a contractor and an owner from entering into a mortgage agreement. A mortgage being an agreement between two parties requires no specific statutory authorization to be valid as contrasted with a mechanic’s lien, which is an ex parte acquisition of an encumbrance on one’s land, and clearly needs legislative sanction to be valid. The mere availability of the mechanic’s lien provisions does not automatically preclude the use of a mortgage. Section 7 of the Lien Law provides protection against the granting of collusive mortgages used for the purpose of avoiding the provisions of that law. Where a contractor takes a mortgage when mechanics’ lienors already possess claims against the property, then it may be assumed that the mortgagee seeks to take precedence over the others and section 7 would void that mortgage as to the other lienors (Foxson v Elmus Bldg. Corp., 276 NY 30). But this provision implies that a mortgage honestly given in good faith prior to the existence of any such claims will be valid.

Both lower courts found, as a matter of fact, that the mortgage herein was given in good faith and that there was no evidence to indicate an intent to avoid the provisions of the Lien Law. When the mortgage was given there were no persons who possessed claims for providing either labor or materials for the improvement of the property. In January, 1974 when the mortgage was executed, plaintiff had already completed approximately 20% of the required work and the remainder was finished by February, 1975 at a cost in excess of the amount of the mortgage. On the other hand Ace did not commence its work until November, 1974, some nine months after the recording of the mortgage and its lien was not filed until another 13 months later. When Ace began the flooring installation, it was chargeable with notice of plaintiffs mortgage just as it would be charged with notice of a prior recorded building loan mortgage. Under these circumstances and in view of the nature of the construction work performed, no reason exists to treat plaintiffs interest as anything other than a mortgage.

To treat this mortgage as a mechanic’s lien, as the Appellate Division did, would constitute an impairment of the obligations of the contract that the parties chose to make. Absent clear statutory authorization to do so, the court should not interfere with such rights. We should not read such an important power into the Lien Law absent more explicit language. Notable, again, in this context is section 7 which protects lienors from the abusive use of the mortgage, but does not prohibit the good faith use thereof.

A valid prior recorded mortgage has priority over a subsequent mechanic’s lien (Lien Law, § 13, subd [1]; Ausable Chasm Co. v Hotel Ausable Chasm & Country Club, 263 App Div 486). Since the mortgage complies with these requirements, it has priority.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

Chief Judge Breitel and Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, etc.

       We note, further, in the case before us that even if the contract and mortgage were cognizable as a building loan contract (Lien Law, § 22) there would be no doubt as to priority (Lien Law, § 13, subds [2], [3]) since the mortgage complied with the statutory requirements, including the requisite lien covenant.


text:
    Adam Nardelli, Appellant, v Melvin Stamberg et al., Respondents.
    Argued April 25, 1978;
    decided June 6, 1978

      POINTS OF COUNSEL

      Norman Bard and Alfred F. Sica for appellant.
    Plaintiff proved a prima facie case of malice against defendants, supporting an award for punitive damages. (Farr v Newman, 14 NY2d 183; Crane v Bennett, 177 NY 106; Voltz v Blackmar, 64 NY 440; Reid v Terwilliger, 116 NY 530; Sanders v Rolnick, 188 Misc 627; Martin v City of Albany, 42 NY2d 13; Broughton v State of New York, 37 NY2d 451; Velez v Craine & Clark Lbr. Corp., 33 NY2d 117.)

      Charles T. Matthews for respondents.
    I. The Court of Appeals has no jurisdiction to entertain this appeal. (Ferrucci v State of New York, 42 AD2d 359; Knibbs v Wagner, 14 AD2d 987; Matter of Nugent v New York State Civ. Serv. Comm., 46 AD2d 700; Mahony v Long Is. R. R. Co., 27 NY2d 724; Barber & Bennett v State of New York, 27 NY2d 738.) II. Stipulation filed by plaintiff does not comply with the order of the court below. (Canfield v Harris & Co., 252 NY 502; Davis v Mayor,

      etc., of N. Y., 93 NY 250.) III. There was no proof of actual malice or wanton or reckless disregard of plaintiffs rights to sustain an award of punitive damages as a matter of law. (Martin v City of Albany, 51 AD2d 596, 42 NY2d 13; Samieloff v New York & Queens County Ry. Co., 122 App Div 770; Sterling Inds. v Ball Bearing Pen Corp., 298 NY 483; Paulson v Margolis, 234 App Div 496; People v Lovejoy, 37 App Div 52; Van Vechten v American Eagle Fire Ins. Co., 239 NY 303; People v Kirnon, 39 AD2d 666, 31 NY2d 877; Ashlaw v Racquette Riv. Paper Co., 1 AD2d 69, 2 NY2d 744; Hopkinson v Lehigh Val. R. R. Co., 249 NY 296; Everson v First Trust & Deposit Co., 46 AD2d 722.) IV. Award of both compensatory and punitive damages was excessive. (Graham v City of New York, 28 AD2d 245; Baird v City of Hornell, 8 AD2d 766; Franzen v Danziger, 250 App Div 787; Dunn v City of New York, 23 AD2d 660; Warren v Balaker, 247 App Div 766.)
   OPINION OF THE COURT

Gabrielli, J.

Plaintiff commenced this action seeking to recover damages for malicious prosecution. He was successful at trial, and was awarded both compensatory and punitive damages. On defendants’ appeal, the Appellate Division, inter alia, reversed the judgment on the law insofar as it awarded punitive damages, and dismissed that part of plaintiffs complaint requesting such damages. The Appellate Division did, however, affirm the findings of fact with respect to defendants’ liability for malicious prosecution. In view of its determination as to the facts, the Appellate Division’s conclusion of law with respect to punitive damages may not stand.

A necessary element of the cause of action for malicious prosecution is "actual malice” (Martin v City of Albany, 42 NY2d 13, 16; Broughton v State of New York, 37 NY2d 451, 457, cert den sub nom. Schanbarger v Kellogg, 423 US 929) or "malice in fact” (Prosser, Torts [4th ed], § 119, p 847). While the requisite malice may be proven by circumstantial evidence (Martin v City of Albany, supra, p 17), and may thus in a sense be denominated "implied” or "inferred” in certain cases, it is far greater than the implied-by-law "malice” which is relevant to a defamation action (see Prosser, Torts [4th ed], §113, pp 771-772; §119, pp 847-849). The "actual malice” element of a malicious prosecution action does not require a plaintiff to prove that the defendant was motivated by spite or hatred, although it will of course be satisfied by such proof. Rather, it means that the defendant must have commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served (Restatement, Torts, § 668; Prosser, Torts [4th ed], § 119, pp 847-849).

It has long been recognized in New York that punitive damages may be awarded in an action for malicious prosecution if the defendant was motivated by actual malice or acted in reckless disregard of the plaintiff's rights (1 Clark, New York Law of Damages, § 70). While the latter phrase might at first seem to imply that something more than the "actual malice” essential to malicious prosecution is needed to support an award of exemplary damages, in fact this is so only in certain cases involving the imposition of vicarious liability (see Samieloff v New York & Queens County Ry. Co., 122 App Div 770; see, generally, 1 Clark, New York Law of Damages, §§ 47-50). In a case such as this, in which liability is to be imposed upon the wrongdoer himself, a finding of liability for malicious prosecution precludes a determination as a matter of law that punitive damages are improper, for the actual malice necessary to support an action for malicious prosecution also serves to justify an award of exemplary damages. "[I]n torts which, like malicious prosecution, require a particular anti-social state of mind, the improper motive of the tortfeasor is both a necessary element in the cause of action and a reason for awarding punitive damages” (Restatement, Torts, Comment c, § 908). Thus, the Appellate Division incorrectly held as a matter of law that plaintiff had no claim for exemplary damages.

This is not to say, of course, that exemplary damages must be awarded in every such action, for the trier of facts is not required to make such an award simply because it may do so (see 14 NY Jur, Damages, § 177). Whether to award punitive damages in a particular case, as well as the amount of such damages, if any, are primarily questions which reside in the sound discretion of the original trier of the facts (see Kujek v Goldman, 150 NY 176, 180; Walker v Sheldon, 10 NY2d 401, 405), in this case the jury, and such an award is not lightly to be disturbed. This does not mean that the Appellate Division or the trial court Judge may never interfere with such a jury award; those courts may, of course, exercise their own discretionary authority to overturn an excessive jury verdict and order a new trial unless the plaintiff will consent to a reduction in amount (see Faulk v Aware, Inc., 19 AD2d 464, affd without opn 14 NY2d 899; Gostkowski v Roman Catholic Church, 237 App Div 640, affd 262 NY 320). We would caution, however, that the amount of exemplary damages awarded by a jury should not be reduced by a court unless it is so grossly excessive "as to show by its very exorbitancy that it was actuated by passion” (1 Clark, New York Law of Damages, § 56, p 102; accord Restatement, Torts, Comment d, § 908; 14 NY Jur, Damages, § 188).

Here, since the Appellate Division erroneously concluded as a matter of law that plaintiff was not entitled to punitive damages, it did not exercise its discretionary authority to review the amount of exemplary damages awarded by the jury to determine whether the verdict was excessive in light of all the facts and circumstances. Thus, rather than simply reinstating the jury verdict, it is appropriate to remand the case to the Appellate Division.

Accordingly, the order of the Appellate Division, insofar as it reversed so much of the judgment of Supreme Court as awarded exemplary damages, and dismissed the claim seeking such damages, should be reversed, and the case remitted to the Appellate Division for review of the award therefor in the exercise of discretion (CPLR 5613), with costs to abide the event.

Chief Judge Breitel and Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur.

Order, insofar as it reversed so much of the judgment of Supreme Court as awarded exemplary damages and dismissed the claim seeking such damages, reversed and plaintiff’s claim for exemplary damages remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein, with costs to abide the event.


author: Chief Judge Breitel.

text:
    Village of Highland Falls, Appellant, v State of New York, Respondent.
    (Claim No. 55085.)
    Argued March 31, 1978;
    decided June 6, 1978

      POINTS OF COUNSEL

      Frederick J. Martin and Bleakley Schmidt, P. C., for appellant.
    The temporary easement imposed by the State on a portion of the subject premises fully involved the principal structural facilities of the water treatment plant. The court below erred in modifying the trial court’s use of the value of those facilities in its formula to measure the damages occasioned by the temporary easement. (Great Atlantic & Pacific Tea Co. v State of New York, 22 NY2d 75; Kravec v State of New York, 40 NY2d 1060; Wolfe v State of New York, 22 NY2d 292; Wayside Nurseries v State of New York, 36 AD2d 212, 34 NY2d 876; Leffmann v Long Is. R. R. Co., 120 App Div 528, 197 NY 513; Weeks-Thorne Paper Co. v City of Syracuse, 139 App Div 853, 140 App Div 916, 203 NY 647; Perry v Lehigh Val. Ry. Co., 9 Misc 515.)

      Louis J. Lefkowitz, Attorney-General (Dennis Hurley and Ruth Kessler Toch of counsel), for respondent.
    The modification by the court below of the award of the Court of Claims for the taking of a temporary easement by the State by eliminating the rental value of a water treatment facility was correct, where the Court of Claims had included the value of a water treatment facility to determine rental value of the easement area when the State had in no way interfered with the operation of the water treatment facility and when there were only three instances of short interruptions in the operation of the facility. (Matter of City of New York, 174 NY 26; Matter of City of New York [Steinecke], 47 AD2d 644; Kravec v State of New York, 40 NY2d 1060; Wolfe v State of New York, 22 NY2d 292.)
   OPINION OF THE COURT

Chief Judge Breitel.

In an eminent domain proceeding, appellant Village of Highland Falls sought compensation for temporary and permanent appropriations of property by the State. The subject property is land improved by a water treatment facility. On this appeal, claimant village challenges only the Appellate Division’s reduction of the Court of Claims’ award for the taking of a temporary easement.

In dispute is whether the damages suffered as a result of the State’s appropriation of a temporary easement may be determined retrospectively, or whether the determination of damages must be prospective. Stated more narrowly, the issue is whether the State, upon taking a temporary easement, must compensate a property owner for the possibility, which never eventuates, that the State may obstruct the owner’s use of the property during the entire term of the easement.

There should be an affirmance. It has been held by this court, albeit in a case where the issue was but one among many, that compensation need not be paid for the State’s taking of a temporary easement when there is no actual interference with the property owner’s use of his property (Great Atlantic & Pacific Tea Co. v State of New York, 22 NY2d 75, 87). In this case, involving as it does a dispute between governmental entities, there is insufficient reason for abandoning that precedent, however differently one might view the issue on a fresh analysis (see, generally, People v Hobson, 39 NY2d 479, 487-491; Matter of Eckart, 39 NY2d 493, 498-500).

The village’s property, a water treatment facility situated on 12.6 acres, was subjected to various appropriations by the State for highway purposes. The facility occupied only a relatively small unspecified portion of the tract, or of the part subject to the temporary easement. Some vacant land was taken in fee, a permanent easement for drainage was acquired over other vacant land, and still other land, together with the treatment facility itself, was subjected to a temporary easement. This appeal concerns only valuation of the temporary easement.

The Court of Claims awarded claimant $85,130, plus interest, for the temporary easement. This award represented the purported rental value of the entire parcel, including the treatment facility itself, for the duration of the easement. The figure was evidently computed by allowing a 10% return on $299,000, the "fair and reasonable market value” of the property, for just under three years. The award would undoubtedly have been appropriate had claimant been deprived of actual use of its property for that period.

The difficulty arises because claimant’s operation of the water treatment facility was rarely significantly interrupted, although the State retained the legal right to exercise some sort of dominion throughout the period of the easement. Apparently, on only three days had there been significant functional interruption.

The Appellate Division, emphasizing the largely untrammeled operation of its facility by the village, reduced the award to $5,640, plus interest, computed by allowing a 10% return on the land value added to the rental value of the treatment facility building only for the three days of interrupted operation. It is to this substantial reduction that the village objects.

The general rule is that property taken in eminent domain is to be valued prospectively from the time of appropriation (Wolfe v State of New York, 22 NY2d 292, 295; see 4 Nichols, Eminent Domain [3d ed], § 12.23).

When a temporary easement, contemplating only incidental and contingent use, is appropriated, rather than a permanent interest, however, it may be somewhat more acceptable to permit the use of hindsight in valuing the interest taken. If the condemnation award is made after the easement has expired, it makes practical sense to compute the property owner’s actual damages rather than indulging in speculation on the measure of damages claimant could have contemplated at the time of taking. In some unusual cases, as when the easement is of uncertain duration, if valuation is to be prospective "[t]he factors on which such a forecast must be based are too contingent, too unique for guidance by experience, to permit rational assessment” (United States v Westinghouse Co., 339 US 261, 267).

Not to be ignored, however, although not always measurable, is the damage to a property owner caused by uncertainty regarding the condemnor’s intentions. A temporary easement that leaves the property owner under constant threat that his use of the property may be curtailed or stopped is likely to affect business or other financial decisions even if use is never interrupted in fact. The threat imposed by the condemnor’s legal right to occupy may be almost as damaging as the actual occupation of the property. Damages caused by such uncertainty, difficult as they may be to measure, should generally be compensable.

Nevertheless, retrospective valuation of a temporary easement, looking only to actual entry on the property and interruption of the activity of the property owner, has been sanctioned by this court (Great Atlantic & Pacific Tea Co. v State of New York, 22 NY2d 75, 87, supra). Whatever the merits of that rule if applied generally, its application works no injustice in this case. The Village of Highland Falls, a municipality, suffered no significant economic injury as a result of the temporary easement. The threat that the State would seriously impede operation of the water treatment facility was small because of the inevitable consequences to local residents and the highly contingent and peripheral contemplated use of the temporary easement.

On any view of the matter, as a caveat, it would seem that in valuing the temporary easement, even prospectively, the nature of the easement should be realistically valued in the light of the economic damage the property owner is likely to suffer as a result of the condemnor’s prospective use. Arguably, the easement should not be valued, automatically, as if the condemnor will prevent entirely the property owner’s use of the property, especially where, as here, such pervasive interference is unlikely.

These conclusions are bolstered by language in the easement reserving to the property owner "the right of using said property and such use shall not be further limited or restricted under this easement beyond that which is necessary to effectuate its purposes”. Such language indicates, to some extent, an intention to permit substantially continued use by the property owner (see Pomeroy v State of New York, 18 Misc 2d 377, 378-379). It signifies, at the very least, that the village was not to be prevented entirely from operating its water treatment facility.

In sum, the Appellate Division’s award fully compensates the Village of Highland Falls for any damages it actually suffered as a result of the State’s temporary easement. That award is in harmony with such case law as exists. Any conceptual or logical inconsistencies in the method of retrospective computation should await reanalysis in a case where claimant is truly prejudiced. As for this appeal there should be deference to stare decisis (see, generally, People v Hobson, 39 NY2d 479, 487-491, supra; Matter of Eckart, 39 NY2d 493, 498-500, supra).

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.


author: Cooke, J. Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Edward D. Isaacson, Appellant.
    Argued February 16, 1978;
    decided May 9, 1978

      POINTS OF COUNSEL

      Peter C. Bradstreet for appellant.
    I. The court should find that the defense of entrapment has been established as a matter of law. (Sorrells v United States, 287 US 435; Sherman v United States, 356 US 369; United States v Russell, 411 US 423; People v Joyce, 47 AD2d 562.) II. The totality of the circumstances surrounding the arrest of Edward Isaacson constitutes a denial of due process of law. (Weeks v United States, 232 US 383; Mapp v Ohio, 367 US 643; Miranda v Arizona, 384 US 436; People v Donovan, 13 NY2d 148.) III. The conviction of Edward Isaacson should be reversed as a denial of the due process clause of section 6 of article I of the New York State Constitution. (Oregon v Hass, 420 US 714; People v Donovan, 13 NY2d 148; Escobedo v Illinois, 378 US 478; Miranda v Arizona, 384 US 436; Sibron v New York, 392 US 40.) IV. As applied to Edward Isaacson, the sentencing statute is unconstitutional as it provides for a minimum penalty which is so severe as to amount to cruel and unusual punishment. (People v Broadie, 37 NY2d 100.)

      John M. Finnerty, District Attorney, for respondent.
    I. The defense of entrapment was not established. (United States v Lemons, 470 F2d 135; Hampton v United States, 425 US 484; United States v Russell, 411 US 423; People v Calvano, 30 NY2d 199; People v Joyce, 47 AD2d 562.) II. The conviction of defendant-appellant did not violate due process principles of the United States or New York Constitutions. (People v Laietta, 30 NY2d 68; Hampton v United States, 425 US 484; United States v Russell, 411 US 423; Rochin v California, 342 US 165; People v Portelli, 15 NY2d 235; People v Isaacson, 56 AD2d 220.) III. The sentence of appellant was not unconstitutional. (People v Broadie, 37 NY2d 100; People v Jones, 39 NY2d 694; People v Riley, 50 AD2d 823.) IV. The expert testimony does not require reversal. (People v Lubrien, 19 AD2d 641; People v Williams, 6 NY2d 18; People v Kampshoff, 53 AD2d 325; People v Lebron, 46 AD2d 776.)
   OPINION OF THE COURT

Cooke, J.

We reverse and dismiss the indictment against defendant; we so hold for the fundamental reason that due process compels it.

This case concerns fortunately rare, and inexplicable, police misconduct. Involved is reprehensible police action, including violence and deception, culminating in the further deceitful luring of a Pennsylvania resident into New York solely to make a sale of cocaine, for which he was convicted and sentenced to 15 years to life at Attica. At the time of trial, defendant was in his mid-twenties and was a graduate student and teacher at Penn State University, on the brink of receiving his doctoral degree in plant physiology and biochemistry. He resided at State College, Pennsylvania. Although he admitted to having used three controlled substances on very few occasions, he had no prior criminal record.

The events leading to defendant’s conviction trace back to December 5, 1974 when J. D. Breniman, a young man with an unsavory drug history, was arrested by the New York State Police in Steuben County for possession of a controlled substance in the second degree, a class A-2 felony punishable by a 15-year to life term. At the time of his apprehension, Breniman was on bail pending an appeal from a 1973 conviction, based on a guilty plea for possession of a dangerous drug in the fourth degree, for which he had been sentenced to an indeterminate term of zero to three years at the New York Correctional Facility at Attica.

Breniman, who at defendant’s trial admitted to being an inveterate user of drugs, including amphetamines, sedatives, hallucinogens, marihuana and heroin, and a seller for profit to maintain his habit, was interviewed after his arrest on December 5, 1974 at the New York State Police substation at Painted Post. As found as a matter of fact by the trial court, during this questioning, an investigator of the New York State Police struck Breniman with such force as to knock him out of a chair, then kicked him, resulting in a cutting of his mouth and forehead, and shortly thereafter threatened to shoot him. Breniman testified that this abuse was administered because he refused to answer a question, that when struck his glasses flew off, that he was kicked in the ribs when down, that a chair was thrown at him, that he was also threatened with being hurled down a flight of steps, and that one of two uniformed State troopers who witnessed these events said, 'T [Breniman] may as well forget about it. They would swear that I fell coming in the substation on the steps.”

Following his seizure on December 5, 1974, Breniman was held without bail at the Steuben County Jail until December 24, when he was released. By December 23, one of the officers involved in his case had received a lab report showing that the capsules found on Breniman, which were the basis for his class A-2 felony charge and which had been purchased from defendant, were not controlled substances at all. Rather than being amphetamines of a type referred to on the street as "Black Beauties”, they were in fact nothing more pernicious than caffeine. However, Breniman was not told of this until some time later, at the trial of this matter — after he had been used by the police as an informant in this case.

Upon the advice of his attorney, and while suffering under the contrived delusion that he was still facing a long prison incarceration if found guilty of the A-2 felony on top of his previous conviction, Breniman agreed to assist the State Police as an informant. Although not specifically promised that his aid to the police would result in a lesser sentence, his attorney advised that this would provide him with a bargaining position with respect to the charges against him. The violence and threats of the investigator were not the reason for his co-operation, so he stated. Nevertheless, the trial court found that Breniman testified he would not have aided the police were it not for the fact that they deceived him by not revealing that the charges relating to the December 5 arrest would not stand up in court.

Breniman began his informant activities by telephoning various persons indiscriminately for the purpose of setting up drug sales in which the police would arrest the sellers. He made "collect” calls and one of the individuals contacted was defendant, whom he had known for two years through a mutual friend at State College. Defendant’s version of the conversations is that Breniman cried and sobbed on the phone, relating that he was facing 15 years to life in Attica, that his parents had effectively cast him from the family home, that he was running out of friends, and that he was looking for ways to make money to hire a decent lawyer. Breniman’s recollection was that he had not made the remarks in the manner described by defendant, but he otherwise corroborated defendant’s version. He admitted telling defendant that he was in trouble, that the police had beaten him, that he feared going to Attica, and that he needed a "score” or "deal” so that he could hire an attorney and "make” bail.

Between December 24, 1974 and January 4, 1975, Breniman made seven phone calls to defendant before finally arranging a sale. Initially, he sought to buy heroin, but defendant flatly refused. As to cocaine, defendant tried to put him off by saying that there was nothing worthwhile, but Breniman persisted in his efforts to get defendant to make a sale.

At the time of Breniman’s calls, defendant was living in an apartment in State College with Denise Marcon, a legal secretary, who admitted that she was a daily user of drugs including marihuana, cocaine, LSD, amphetamines and depressants. She testified that in October and November of 1974 defendant had sold one-gram quantities of cocaine which he kept at the apartment, and this was confirmed by Breniman who alleged that he made two purchases of small amounts of cocaine from defendant during these months. Although Mar-con had not herself spoken to Breniman about a sale, defendant discussed with her at length Breniman’s request.

Defendant’s studies and his teaching responsibilities required him to work 12 to 14 hours a day. He did not have access to someone who could supply him with the cocaine — the two ounces worth $3,800 which Breniman was seeking — but Denise Marcon did. She called a girl friend who gave her a number at which to contact a man known as "Zorch”. Although Marcon testified that defendant indicated that a sale of this magnitude to Breniman was worth $1,000 to them, she also confirmed that a desire to help Breniman was defendant’s motivation for entering into the transaction.

The sale was scheduled for January 4, 1975. The State Police claimed no knowledge of Breniman’s prior negotiations, but had spoken to Breniman concerning the sale in general. The investigator, who had previously struck Breniman, detailed the specifications to his victim-turned-informant. Breniman said he might be able to get an ounce of cocaine, but the investigator told him to get two because it was his experience that one never gets exactly what is asked for and he wanted a sale of at least one ounce to obtain a conviction for a higher grade of crime. Defendant feared New York’s drug laws and did not want to enter the State, but the investigator instructed Breniman that the transaction must take place in New York where he had authority to make an arrest.

To cause defendant to sell drugs in this State, Breniman cleverly kept changing the destination, progressively northward, culminating in an arrangement by which defendant would make a three- or four-hour trip to meet at a place near the Pennsylvania-New York border, at a spot where it would be difficult for defendant to ascertain his location. Initially, defendant agreed to meet in Williamsport, Pennsylvania, one and a half hours distant from State College. Breniman then succeeded in inducing defendant to commit himself to journey to Mansfield, a point near Williamsport and also in the Quaker State. Finally, he acceded to drive another 15 miles north from Mansfield to Lawrenceville, Pennsylvania, which is just south of the State boundary.

The meeting place finally settled upon was the Whiffle Tree Bar, which Breniman told defendant was in Lawrenceville. What Breniman did know, and defendant did not, was that the bar was actually in the Town of Lindley, Steuben County, New York. Traveling north on Route 15 in Pennsylvania toward Lawrenceville, the only clear indication a motorist might have that he is leaving Pennsylvania is a sign adjacent to the southerly approach of a bridge spanning the Cowanesque River and welcoming the traveler to New York State. Actually, the State line is several hundred yards southerly of the bridge and is designated by a stone marker, which at the time of defendant’s visit had crumbled and was obscured in the vegetation alongside the road. The Whiffle Tree Bar is situate between the hidden stone marker and the bridge sign and thus is located in the Town of Lindley in New York State, rather than in Lawrenceville, Pennsylvania, as defendant had been led to believe. Although Breniman devised the scheme for bringing defendant into this State, it was the State Police investigator who independently determined that the proposed location was within his jurisdiction.

Defendant engaged in a rather elaborate method of delivering the cocaine, including an arrangement to have Denise Marcon drive along in a separate vehicle conveying the contraband and the toting beneath his shirt of a plastic bag containing a nonnarcotic substance with a cocaine appearance to be turned over in the event of a "rip-off”. He testified these precautions were suggested by Zorch, the supplier. The Appellate Division majority and trial court inferred that defendant’s use of these methods showed he was not unskilled but was knowledgeable and wary. This evaluation is belied by the ease with which he was enticed into New York.

Defendant’s precautions notwithstanding, he was arrested in the course of the transaction outside of the Whiffle Tree Bar. Breniman was called as a material witness. So was defendant’s former paramour, Denise Marcon, who testified for the prosecution in return for a promise of life-time probation for her part in the sale.

Following a trial, without a jury, at which defendant raised the defense of entrapment and urged that his due process rights were violated, the County Judge found him guilty of criminal sale of a controlled substance in the first degree in violation of section 220.43 of the Penal Law, and imposed sentence. The Appellate Division affirmed, but two Justices vigorously dissented. For reasons which follow, we reverse and dismiss the indictment.

In holding that this prosecution should be barred, we find it unnecessary to examine in detail the question of whether this defendant was predisposed to commit the crime (see Penal Law, § 40.05). County Court found as a matter of law and fact that defendant did not prove by a preponderance of the evidence the defense of entrapment and the Appellate Division majority in turn held that the record amply supports the determination that defendant was predisposed to commit the offense for which he was charged. Even though defendant did not sustain his burden as to this affirmative defense (see Penal Law, § 25.00, subd 2), the police conduct, when tested by due process standards, was so egregious and deprivative as to impose upon us an obligation to dismiss.

Recent cases show greater recognition of due process as a check on police misconduct. In United States v Russell (411 US 423), based on a finding that defendant was predisposed to commit the crime, the Supreme Court rejected an entrapment defense even though a government agent supplied him with a chemical ingredient used by him to manufacture drugs illegally. However, while adhering to the test enunciated in Sorrells v United States (287 US 435), the court envisioned: "[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165” (411 US, at pp 431-432). In a later case, however, the meaning of Russell divided the majority of the court, which upheld a conviction where the government supplied contraband to a defendant later prosecuted for trafficking in the same (Hampton v United States, 425 US 484). Referring to Russell, the plurality stated: "We ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case, such as this one, where the predisposition of the defendant to commit the crime was established” (id., at pp 488-489). Two Justices concurred, on the basis that they were "unwilling to join the plurality in concluding that, no matter what the circumstances, neither due process principles nor our supervisory power could support a bar to conviction in any case where the Government is able to prove predisposition” (Powell, J., with whom Blackmun, J., joined, concurring in judgment, 425 US, at p 495). Therefore, in light of the concurrence and the dissent of three Justices in Hampton (see 425 US, at pp 495-500), a dismissal on due process grounds in the context of an insufficient entrapment defense has not been ruled out by the Supreme Court.

Of course, under our own State due process clause (NY State Const, art I, § 6), this court may impose higher standards than those held to be necessary by the Supreme Court under the corresponding Federal constitutional provision (see Oregon v Hass, 420 US 714, 719; see, generally, Brennan, State Constitutions and the Protections of Individual Rights, 90 Harv L Rev 489). However, the views expressed by some members of the Supreme Court, as well as those of other courts and respected commentators, illustrate and articulate the need for a due process analysis of the boundaries of permissible police conduct. We therefore decide this case under our own State Constitution.

It has been said that " 'due process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances” (Anti-Fascist Committee v McGrath, 341 US 123, 162 [Frankfurter, J., concurring]). It embraces fundamental rights and immutable principles of justice (People v Terra, 303 NY 332, 334) and use of the term is but another way of saying that every person’s right to life, liberty and property is to be accorded the shield of inherent and fundamental principles of justice (see Ives v South Buffalo Ry. Co., 201 NY 271, 293, 295-296; see, also, People v Yamin, 45 Misc 2d 407, 417). Due process of law guarantees respect for personal immunities "so rooted in the traditions and conscience of our people as to be ranked as fundamental” (Snyder v Massachusetts, 291 US 97, 105 [Carduzo, J.]). It imposes upon courts the duty to foster " 'that fundamental fairness essential to the very concept of justice’ ” (People v Leyra, 302 NY 353, 364). Although an application of due process to outrageous conduct of law enforcement agents such as to warrant a restraint of the government from invoking judicial procedures in obtaining a conviction has evolved more recently, the doctrine is an ancient one traceable to Magna Charta and has been "so often judicially defined that there can be no misunderstanding as to [its] meaning” (see Ives v South Buffalo Ry. Co., 201 NY 271, 292-293, supra).

Where the police obtain evidence by brutalizing a defendant, a conviction resulting from such methods offends due process (see, e.g., Rochin v California, 342 US 165, supra). And, as noted, even where a defense of entrapment is not made out because of the predisposition of the defendant to commit the crime, police misconduct may warrant dismissal on due process grounds (see United States v Russell, 411 US 423, 431-432, supra; see, also, Hampton v United States, 425 US 484, 495, supra [Powell, J., concurring]; cf. 425 US, at pp 495-500 [Brennan, J., dissenting]). Moreover, the type of conduct which mandates the barring of prosecution ought not to be limited to situations involving police brutality (see 87 Harv L Rev 243, 252; see, also, Cox v Louisiana, 379 US 559; Raley v Ohio, 360 US 423, 439; cf. United States v Archer, 486 F2d 670). To prevent improper and unwarranted police solicitation of crime, there is a need for courts to recognize and to uphold principles of due process (see United States v Lue, 498 F2d 531; see, also, Comment, Viability of the Entrapment Defense in the Constitutional Context, 59 Iowa L Rev 655; Comment, Defense of Entrapment: Next Move— Due Process?, 1971 Utah L Rev 266; cf. People v Joyce, 47 AD2d 562, 564). This is a case that demands the application of these principles.

While due process is a flexible doctrine, certain types of police action manifest a disregard for cherished principles of law and order. Upon an inquiry to determine whether due process principles have been transgressed in a particular factual frame there is no precise line of demarcation or calibrated measuring rod with a mathematical solution. Each instance in which a deprivation is asserted requires its own testing in the light of fundamental and necessarily general but pliant postulates. All components of the complained of conduct must be scrutinized but certain aspects of the action are likely to be indicative (see People v Taranovich, 37 NY2d 442, 445; cf. Sortino v Fisher, 20 AD2d 25, 28).

Illustrative of factors to be considered are: (1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity (compare Greene v United States, 454 F2d 783, with United States v Russell, 411 US 423, supra); (2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice (see United States v Archer, 486 F2d 670, supra; cf. Rochin v California, 342 US 165, supra); (3) whether the defendant’s reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness (see Schecter, Police Procedure and the Accusatorial Principle, 3 Crim L Bull 521, 527); and (4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace. No one of these submitted factors is in itself determinative but each should be viewed in combination with all pertinent aspects and in the context of proper law enforcement objectives — the prevention of crime and the apprehension of violators, rather than the encouragement of and participation in sheer lawlessness. As a bare minimum, there should be a purposeful eschewal of illegality or egregious foul play. A prosecution conceived in or nurtured by such conduct, as exemplified in these guidelines, so as to cast aside and mock "that fundamental fairness essential to the very concept of justice” should be forbidden under traditional due process principles.

Applying these factors to this case, first we find the manufacture and creation of crime. At most, and over his denial, the record shows that defendant had made small and rather casual sales of drugs. Indeed, it was established that he did not himself have access to the quantity of drugs sought by Breniman and for which he was arrested but was only directed to the source by one who testified against him. Doubtless, a crime of this magnitude would not have occurred without active and insistent encouragement and instigation by the police and their agent.

Turning to the second component, serious police misconduct repugnant to a sense of justice is revealed. Initially, there was conceded abuse of Breniman at the substation. While this harm was visited upon a third party, it cannot be overlooked, for to do so would be to accept police brutality as long as it was not pointed directly at defendant himself. Not only does the end not justify the means, but one should not be permitted to accomplish by indirection that which is prohibited by direction. More importantly, these actions set the pattern for further disregard of Breniman’s rights in failing to reveal to him that the material he possessed on December 5 would not subject him to criminal charges (cf. Brady v Maryland, 373 US 83). This was deceptive, dishonest and improper; it displayed a lawless attitude and, if countenanced, would suggest that the police are not bound by traditional notions of justice and fair play.

The third factor embraces a persistent effort to overcome defendant’s reluctance to commit the crime. Breniman, as informant, played upon defendant’s sympathy, their past relationship, and persevered in his requests despite defendant’s obvious unwillingness. Moreover, even if defendant was motivated by expectation of profit, the lure of exorbitant gain is not a proper basis to create crime for the purpose of obtaining convictions. With resistance so undermined, even a person not predisposed to crime may be enticed to violate the law.

Finally, there is the overriding police desire for a conviction of any individual. In this respect, one is immediately shocked by an incredible geographical shell game — a deceit which effected defendant’s unknowing and unintended passage across the border into this State. While this outright fraud was ostensibly accomplished by an informant, he was acting at the behest of the police, who emphasized that the sale must take place in New York, and thus are chargeable with the tactics employed by their agent (see Johnson v United States, 317 F2d 127, 128; State v Stein, 70 NJ 369). Of course, in a particular case it may be necessary for the police to apprehend a criminal who operates outside our borders, but this is not such a situation. There is no suggestion that defendant had previously sold great quantities of cocaine. In short, the police wanted a conviction and simply set two specifications— a large amount of the substance to denote a high grade of crime and a situs of sale in New York. There was no indication of any desire to prevent crime by cutting off the source and, thus, the conviction obtained became little more than a statistic.

In sum, this case exposes the ugliness of police brutality, upon which was imposed a cunning subterfuge employed to enlist the services of an informant who, deceived into thinking he was facing a stiff prison sentence, desperately sought out any individual he could to satisfy the police thirst for a conviction, even of a resident of another State possessed of no intention to enter our confines. Separately considered, the items of conduct may not rise to a level justifying dismissal but viewed in totality they reveal a brazen and continuing pattern in disregard of fundamental rights.

As expected, the argument is advanced that the police are to be condemned, but the criminal should still be punished. Indeed, defendant’s conviction was allowed despite the castigation of police conduct as "improper” and "reprehensible”. Whether conduct is so outrageous is a question of degree to be answered by sound judgment, but "there comes a time when enough is more than enough — it is just too much” (Williamson v United States, 311 F2d 441, 445 [Brown, J., concurring]). In this case, the police have simply gone too far. This court would be paying mere lip service to the principle of due process if it sanctioned the continuance of a prosecution in the face of the revelations of this record.

Certain comments in the dissent warrant discussion. Although stated elsewhere in this opinion, it appears to be necessary to emphasize our recognition that defendant has not established the defense of entrapment. That defense is not the issue in this case and no attempt has been made to interfere with or disturb the fact-finding powers of other courts. Analysis is not advanced by disputes over the extent of defendant’s predisposition. To be sure, he was predisposed to commit the crime, and for that reason the defense of entrapment failed. However, the proper focus is on whether, regardless of defendant’s inclinations or criminal intent, due process mandates dismissal of his indictment.

Presented for our legal evaluation are undisputed facts and findings of the trial court that the police engaged in serious misconduct, which even the dissent characterizes as "devious” and "inexcusable” (dissent, at p 527). The dissent would overlook this conduct because the defendant was not "a direct victim of police malfeasance” (at p 527). The point is, however, that while the informant was the victim of the trickery and beating, these actions were indeed directed at defendant. This misbehavior set the pattern for an investigation in which the informant was maliciously used as a pawn to obtain a conviction of any individual. The dissent apparently finds nothing wrong with this technique. Tactics here employed, if not checked, are certain to encourage lawlessness and destroy cherished freedoms. A defendant charged with the most heinous of crimes is still entitled to the fundamental fairness we conceive under the notion of due process.

The undisputed facts and the express findings of the trial court provide the pivot on which this case turns and the basis from which this opinion is reasoned. A standard must be set somewhere and the line should be drawn here.

To be sure, "[cjriminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer” (Sherman v United States, 356 US 369, 372). However, while Justice Frankfurter’s view was not adopted in the analysis of the entrapment defense, we now apply it in a due process context, thereby affirming this fundamental principle: "No matter what the defendant’s past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society” (id., 356 US, at pp 369, 382-383, Frankfurter, J., concurring]). There may be those who fear that dismissal of convictions on due process grounds may portend an unmanageable subjectivity. Such apprehension is unjustified for courts by their very nature are constantly called upon to make judgments and, though differences of opinion often surround human institutions, this is the nature of the judicial process (see Rochin v California, 342 US 165, 170-171, supra). Circumscribed by a sizeable body of constitutional and common law pronounced and steeped in traditions of Anglo-Saxon jurisprudence, due process is our most fundamental principle of law and must be applied here. The administration of justice must be above reproach (People v Savvides, 1 NY2d 554, 556). We therefore hold that this prosecution should be barred.

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

Gabrielli, J.

(dissenting). I cannot agree that due process either as urged by the defendant or as expostulated by the majority mandates a reversal of defendant’s conviction and a dismissal of the charges against him. Accordingly, I vote to affirm the order appealed from and sustain the conviction.

While it may well be that under certain egregious circumstances due process might mandate dismissal in an entrapment situation although the defendant is in fact predisposed to commit the crime of which he stands accused (but cf. United States v Russell, 411 US 423), this is not that case. My disagreement with the majority today lies more in the court’s unwarranted assessment of the facts than in its enunciation of basic principles. The defendant has been convicted, and that conviction has been affirmed by the Appellate Division. The testimony at trial, both as to defendant’s prior involvement in the drug subculture, and as to the details of the sale with respect to which he was convicted, was conflicting to say the least. The defendant, according to his own testimony which has been implicitly, and improperly, credited by the majority of this court, was a veritable innocent: an occasional user of marihuana, who agreed to sell cocaine in this case only because he wanted to help his friend, Breniman (whom he had met casually only three times before); a man who did not even know that the woman he was living with was a regular drug user.

Other witnesses, however, describe a completely different man. Breniman, the police informant, testified that he had on three prior occasions purchased varying amounts of marihuana, cocaine, and phenocyclidine from defendant. Denise Marcon, who shared an apartment with defendant, testified that defendant had been involved in several cocaine sales in the two or three months immediately preceding his arrest. She declared that on at least five occasions cocaine had been delivered to their apartment; that defendant took that cocaine to his laboratory, where he weighed it and broke it down into grams for easier sale; that he subsequently delivered it to several different people. As a perusal of the trial transcript indicates, someone at defendant’s trial took certain liberties with the truth. As we have stated on many prior occasions, the trial court was in the best position to assess the testimony, and that court believed the prosecution witnesses; indeed the experienced Trial Judge concluded that some of defendant’s testimony was incredible. These conclusions were not disturbed by the Appellate Division, and I cannot agree that it is proper for this court to supplant the conclusions of the original trier of fact with its own speculations absent clear error as a matter of law (People v Erwin, 42 NY2d 1064, 1066; People v Richardson, 41 NY2d 886, 887; see People v Gruttola, 43 NY2d 116, 122-123).

The majority has wisely chosen not to decide this case on the statutory entrapment defense issue, since a reversal on that ground would require that the court explicitly disturb the factual finding that defendant was predisposed to commit the crime of which he stands convicted. Unfortunately, it has fallen into the same difficulty in its due process analysis, for although the court admits that the defendant was in fact predisposed to commit the crime, it nonetheless then finds itself in the troublesome position of having to show that defendant’s character is such that he would not have committed this crime had he not been lured into it by Breniman. The distinction is tenuous at best. As I have noted, it is not for this court to set aside the factual determination of credibility made by the lower courts. Indeed, the majority concedes that defendant was previously involved in drug sales, but dismisses that impertinent fact by characterizing those sales as at most "small and rather casual sales”. Whatever the wisdom of our drug laws, it is for the courts to apply them, not demean them. Although the amount of drugs involved in a sale may lessen the degree of liability which attaches, the sale itself remains a criminal act, be it casual or the result of ten years’ planning. In the present case, at any rate, the testimony of Marcon tends to belie the lack of professionalism implied by the majority. I find it difficult to reconcile this evidence with the portrait of entrapped innocence drawn by the court.

Turning then to the police misbehavior which the majority posits as proof that defendant has been deprived of his basic right to fair treatment at the hands of the government, I agree, of course, that the beating of Breniman was inexcusable, as were the devious means used to convince him to work for the police. These actions, however, had no significant connection with defendant, and in no way violated any of defendant’s constitutional rights (cf. People v Cefaro, 21 NY2d 252; People v Hansen, 38 NY2d 17, 22). While police misbehavior is not to be condoned, neither should the punishment for such activity be lightly visited upon society as a whole (see Matter of Nigrone v Murtagh, 46 AD2d 343, 349, affd 36 NY2d 421). Had defendant been a direct victim of police malfeasance, the situation would be quite different. As it is, however, the beating and the trickery were directed solely toward Breniman. To free this defendant, a confirmed drug dealer, simply because the police had mistreated the man who was later to inform on him, makes as little sense as would invalidating all arrests made by a policeman who has mistreated one suspect.

Apart from the mistreatment of Breniman, there has been no other police misbehavior shown in this case. The majority would castigate the police for the "deceitful luring of a Pennsylvania resident into New York solely to make a sale of cocaine”. I do not agree that the actions which are so characterized constitute misconduct under the facts of this case. Proper analysis is furthered by separate consideration of the two discrete aspects of this alleged police misbehavior; the "luring” into New York, and the "entrapment” into the sale in the first place. Assuming that there was no real element of entrapment in this case, as I will discuss below, then surely there is no wrong in "luring” into the confines of New York State a man who would breach our laws with impunity from the far side of the border. Are not the people of this State entitled to some protection from criminal conduct outside the State which is intended to have a harmful effect inside the State? (See, generally, CPL 20.20, subd 2.) Defendant knew that Breniman intended to resell the cocaine in New York, and he had absolutely no compunction about that. His avowed reason for not wishing to enter New York had nothing to do with any desire not to commit a crime, for he had already agreed to do that by agreeing to sell the cocaine to Breniman. Rather, he did not wish to complete the sale in New York because he was afraid of our strict drug laws. In a situation such as this, involving someone who is selling contraband with the knowledge that it will be resold in New York, I see no problem in "luring” that person into our State for the purpose of obtaining criminal jurisdiction over him.

With respect to the nature of the incidents and communications which led to the sale itself, my differences with the majority are in large part based on our interpretations of the record. I find myself compelled to accept that version of the facts which has been accepted by the trial court and left undisturbed by the Appellate Division. So should the majority. As was discussed above, the testimony of Breniman and Marcon, the two other participants in the sale, indicates that the defendant was deeply involved in the drug subculture, and was in fact a seller of cocaine on a fairly regular basis. He had sold cocaine, as well as other illicit drugs, to Breniman on several prior occasions, and obviously had no compunctions about entering into subsequent transactions with Breniman. Although he did not wish to become involved in heroin, he clearly was already involved in the sale of cocaine.

The majority emphasizes that it took some time and several phone calls to set up the deal, and suggests that this is indicative of a disinclination upon the part of defendant to enter into the sale. I would note that the delay was due to the fact that these events transpired over the Christmas-New Year recess, during which time the campus was empty and defendant’s normal source of cocaine doubtless was temporarily curtailed. Thus, he was forced to delay until he could locate a new supply, which he eventually did, purchasing the drugs from a friend of a friend of Marcon.

In light of defendant’s prior sales, both to Breniman and to others, it is clear that this was not the type of manufactured crime which would never have taken place had it not been for the police, and with respect to which society might not wish to impose criminal liability. This is simply not a case in which an innocent man is seduced into criminal activity by police agents solely in order to obtain another conviction. Any reluctance upon defendant’s part came not from a disinclination to sell drugs, but from a temporary disruption of his supply lines and from a disinclination to travel into this State to complete the sale. It is simply not the type of reluctance relevant to either the statutory defense of entrapment or a due process based quasi-entrapment doctrine.

In conclusion, I would note that the police conduct in this case is much less offensive than that in Hampton v United States (425 US 484). There, the Supreme Court held that due process was not violated, and a prima facie entrapment defense was not available to a defendant who was predisposed to commit the crime, in a situation in which defendant alleged that not only had a police agent talked him into becoming involved in a heroin sale, but that it had in fact been the police agent who supplied the heroin.

Accordingly, I am compelled to vote to affirm the order appealed from.

Chief Judge Breitel and Judges Jones, Wachtler and Fuchsberg concur with Judge Cooke; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.

Order reversed, etc.

       The majority and the dissenters at the Appellate Division both characterized the police conduct as "reprehensible” (56 AD2d, at pp 226, 231).

       There was no entrapment here, and the majority acknowledges that the principles of that defense are not here involved (pp 518, 519). Any discussion of entrapment as a defense by the majority as it applies to this case is inappropriate. I must address the subject only because the majority expounds upon it and then concludes that the trial court held as a matter of law and fact that entrapment was not here present, a finding that was affirmed by the Appellate Division.
      It is emphasized at this point that both courts found that the evidence showed that the defendant, by proof of numerous previous drug sales and violations, "was predisposed to commit the offense for which he was charged” (p 518).