author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Jerry McManus, Appellant.
    Argued April 28, 1986;
    decided June 10, 1986

      POINTS OF COUNSEL

      Hillard Wiese and Philip L. Weinstein for appellant.
    I. The People’s evidence was insufficient to prove that appellant recklessly killed Dennis Hite under circumstances evincing a depraved indifference to human life. (People v Scarborough, 49 NY2d 364; Jackson v Virginia, 443 US 307; People v Register, 60 NY2d 270; People v France, 57 AD2d 432; People v Jernatowski, 238 NY 188; People v Poplis, 30 NY2d 85; People v Santoro, 68 AD2d 939; Darry v People, 10 NY 120.) II. Appellant was denied due process of law and a fair trial by the court’s refusal to instruct the jury that justification was a defense to reckless murder. (People v Watts, 57 NY2d 299; People v Torre, 42 NY2d 1036; People v West, 84 AD2d 795, 56 NY2d 637; People v Steele, 26 NY2d 526; People v Huntley, 59 NY2d 868; People v Stridiron, 33 NY2d 287; People v Albino, 104 AD2d 317; People v La Susa, 87 AD2d 578; People v May, 55 AD2d 739.)

      William L. Murphy, District Attorney (Paul J. Angioletti

      and Karen F. McGee of counsel), for respondent.
    I. Evidence that defendant fired indiscriminately into a crowd of youths, killing one of them, proved beyond a reasonable doubt his guilt of depraved indifference murder. (People v Malizia, 62 AD2d 755; People v Contes, 60 NY2d 620; People v Benzinger, 36 NY2d 29; People v Register, 60 NY2d 270, 466 US 953; People v Fenner, 61 NY2d 971; People v Jernatowski, 238 NY 188; People v Le Grand, 61 AD2d 815, 439 US 835; People v Licitra, 47 NY2d 554; People v Kennedy, 47 NY2d 196; People v Dlugash, 41 NY2d 725.) II. The court was not required to charge justification as a defense to depraved indifference murder; the objective evaluation of conduct and circumstances required in depraved indifference murder precludes the subjective analysis involved in justification. (People v Jacobs, 105 Misc 2d 616; People v Register, 60 NY2d 270, 466 US 953; Shorter v People, 2 NY 193; People v Macon, 110 AD2d 718; People v Poplis, 30 NY2d 85; People v Northrup, 83 AD2d 737; People v Almodovar, 62 NY2d 126; People v Sierra, 45 NY2d 56; People v Huntley, 59 NY2d 868; People v Stridiron, 33 NY2d 287.)
   OPINION OF THE COURT

Hancock, Jr., J.

Justification is a defense to depraved indifference murder and, where evidence supporting the defense has been presented, refusal to instruct the jury that the People must disprove justification beyond a reasonable doubt is reversible error. We, therefore, reverse the order of the Appellate Division which affirmed defendant’s conviction and remit for a new trial.

Defendant was indicted on one count each of intentional murder (Penal Law § 125.25 [1]) and depraved indifference murder (Penal Law § 125.25 [2]) for firing a shot into a group of youths and fatally wounding one of them. Defendant never denied firing the shot. Rather, he insisted that he did so to "scare off” the five youths who were robbing and assaulting his companion.

In a written statement, given at the station house on the night of the incident, defendant told the police that he and his companion were approached by five males. One put a pistol to his friend’s stomach and, when defendant attempted to intervene, another drew a pistol on him. Defendant was ordered to give up his money but instead turned and ran. When he looked back, defendant saw his friend being beaten and robbed. The group began to chase defendant and he fled to his home, locked the door and retrieved his uncle’s rifle. The group stood outside, yelling for defendant and brandishing their pistols. Defendant opened the door and, when they saw his rifle, the group fled. Defendant gave chase. During the chase, the group came upon defendant’s friend and began assaulting him again. At his friend’s desperate urging, defendant fired the rifle, hitting someone in the group.

Defendant was questioned again that night on videotape. His answers, given over a one hour period and covering about 70 pages of transcript, corresponded substantially with the former written statement.

At trial, the People sought to prove that defendant fired the rifle without provocation. Members of the group testified that, although some of them had chased defendant to his home, none was armed and none had assaulted defendant or his companion. The People introduced defendant’s written and videotaped statements and, when defendant took the stand in his own defense, he recounted the incident, albeit with some discrepancies, in essentially the same detail as he had previously.

During their summations, both counsel addressed the issue of justification and, prior to the court’s instructions, counsel for defendant requested a charge on that defense. The court assured him that the jury would be instructed on justification and the court did so with respect to the intentional murder count. The court gave no such charge, however, concerning depraved indifference murder and, at the conclusion of the court’s instructions, counsel requested that the charge of justification be repeated for that offense. The following exchange ensued:

"the court: You want me to charge justification twice and I’m not going to do it.

"counsel: If the jury has reasonable doubt as to whether or not the district attorney disproved the defense of justification, then they must acquit on all charges.

"the court: No, that’s not necessarily true here.

"counsel: I take an exception.

"the court: Depraved justification is not a defense as [to] depraved indifference.

* * *

"the court: You see, let me explain something to you [counsel], as one lawyer to another. In order for you to have justification, you must have intent. You are admitting that you killed somebody. You did it because you were justified. How can you have a reckless depraved indifference and say you were justified. I don’t think it applies. I decline your request.”

The jury acquitted defendant of intentional murder, failed to reach a verdict on the lesser included charge of manslaughter under extreme emotional disturbance, but convicted defendant of depraved indifference murder.

The Appellate Division unanimously affirmed. The court held that the evidence that defendant fired into a crowd of five persons causing death to one of them was legally sufficient to support a verdict of depraved indifference murder. We agree that defendant’s conduct, as portrayed by the People’s witnesses, could be found by a jury to have displayed the requisite wanton indifference to a very substantial risk to human life (see, People v Gomez, 65 NY2d 9, 10-11; People v Register, 60 NY2d 270, 277).

The Appellate Division further held that the defendant’s request for a charge on justification with regard to the depraved indifference murder count was properly refused. The court reasoned that a depraved mind murder, by its very definition, cannot be justified and hence, that the defense is necessarily precluded. The argument is that justification and depraved indifference are incompatible concepts: that the defense cannot excuse a reckless disregard of an unjustified risk. Such reasoning, we believe, misconceives the essential nature of the defense. Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all.

The defense of justification (Penal Law art 35) affirmatively permits the use of force under certain circumstances (see, People v Watts, 57 NY2d 299, 301; see also, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 35.15, p 93 [1975]). Pursuant to Penal Law § 35.15, a person "may” use physical force to defend himself or a third person, and his conduct, which would otherwise constitute an offense, is simply not criminal (see, People v Padgett, 60 NY2d 142, 145; cf. People v Sullivan, 7 NY 396, 400). The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful (see, People v Taylor, 177 NY 237, 245; cf. People v Padgett, supra, at p 145; compare, Penal Law §§ 15.25, 15.05 [3] on the effect of intoxication).

In this regard, the current statutory defense reflects the common-law "right” of an individual to repel a threat to life or limb (People v Governale, 193 NY 581, 587-588; see also, Shorter v People, 2 NY 193). Defense of oneself or one’s relations, deemed a natural, inalienable right at common law, justified the use of force, making even homicide lawful. Thus, one who committed an act of "justifiable homicide”, whether in defense of himself or another, was considered to have "no kind of fault whatsoever, not even in the minutest degree” (4 Blackstone’s Commentaries, at 932 [Chase’s 3d ed], see also, 69-70, 619).

This right to defend oneself or another was early codified in this State as an integral part of the murder statutes (see, e.g., L 1787, ch 22; 2 Rev Stat of NY, part IV, ch I, tit II, § 3 [1829]), and this court has long held the People have the burden of disproving beyond a reasonable doubt a defendant’s claim that he was acting in the exercise of that right (see, e.g., People v Taylor, 177 NY 237, 245, supra; People v Riordan, 117 NY 71, 74-75). Accordingly, justification under the Penal Law is an ordinary defense rather than an affirmative one (see, Penal Law § 35.00). As such, whenever justification is sufficiently interposed by the defendant, the People must prove its absence to the same degree as any element of the crime charged (People v Reed, 40 NY2d 204, 209; People v Steele, 26 NY2d 526, 528).

From the foregoing, it follows that there is no basis for limiting the application of the defense of justification to any particular mens rea or to any particular crime involving the use of force. Indeed, the Legislature has clearly not done so. The introductory provision to article 35 of the Penal Law evinces an intent to give the justification defense the broadest possible scope. It states without qualification that the defense is available "[i]n any prosecution for an offense” (Penal Law § 35.00 [emphasis added]). Likewise, section 35.15, the provision specifically at issue in this case which outlines the circumstances under which the use of physical force and deadly physical force are justified, is devoid of any such limiting language. (See also, Penal Law § 35.05 [2] and § 35.10 [6].)

Accordingly, this court has rejected a restrictive application of the defense and, instead, has permitted the defense to be raised against diverse charges involving the use of force, regardless of the relevant mens rea (see, e.g., People v Padgett, supra [criminal mischief, fourth degree; intentional]; People v Huntley, 59 NY2d 868, affg 87 AD2d 488 [manslaughter, second degree; reckless]; cf. People v Watts, supra [assault, second degree; intentional]; People v Stridiron, 33 NY2d 287 [manslaughter, second degree; reckless]; People v Torre, 42 NY2d 1036 [manslaughter, second degree; reckless]; compare, People v Almodovar, 62 NY2d 126 [criminal possession of a weapon, second degree; intentional]). As we made clear in People v Padgett (supra, at p 146) where we rejected an argument that the justification defense is only available in cases where the defendant’s conduct is conceded to have been intentional, such a rule would be "a much too narrow interpretation of the circumstances under which this doctrine may be applicable.” Reaffirming our decision in People v Huntley (supra), where we held the defense applicable to a charge of reckless homicide (Penal Law § 125.15 [1]), we stated that a defendant is entitled to a charge "that his conduct might not have been criminal under the circumstances”, whenever the defendant claims that "he engaged in [forceful] conduct in avoidance of [a] perceived attack” (60 NY2d, at p 146). There is no reason why the rule should be different solely because the crime charged is depraved indifference murder.

We have specifically held that justification may be asserted as a defense to manslaughter in the second degree (Penal Law § 125.15 [1]), a crime involving the culpable mental state of recklessness (see, People v Huntley, supra; see also, People v Torre, supra; People v Stridiron, 33 NY2d 287, supra). The rule should be applied with equal force to depraved indifference murder which involves the same mens rea (see, People v Register, 60 NY2d 270, 277-278, supra). To hold otherwise would permit an incongruous result: murder convictions could be obtained under the depraved indifference statute even where, because the prosecution could not disprove justification, convictions could not be obtained either for the lesser offense of manslaughter in the second degree or for the greater offense of intentional murder (Penal Law § 125.25 [1]; § 125.27 [1]) (cf. People v Register, supra, at pp 286-287 [Jasen, J., dissenting]).

To contend, as do the People, that depraved indifference murder, by definition, cannot be justified is to beg the very question at issue. Such an argument assumes the criminality of the use of force which the defense of justification renders entirely lawful. If the conduct is justified, it simply cannot be the basis of depraved indifference murder or any other crime. We reject the contention that the additional element of depravity — which, we have held, refers solely to the objective circumstances under which the reckless conduct is alleged to have occurred (see, People v Register, supra, at p 276) — in some way alters the rationale or operation of the defense. The apparent conceptual difficulty in reconciling the defense of justification with a "wanton indifference to human life or a depravity of mind” which is essential to depraved indifference murder (id., at p 274) is of no moment. The defense must not be viewed as one that operates to negate or refute an aspect of the crime charged. Rather, if the People fail to disprove justification, the use of force is deemed lawful (Penal Law § 35.15) and the defendant is entitled to an acquittal.

In sum, in a prosecution for depraved indifference murder, or another crime involving the use of force, a charge on justification is warranted whenever there is evidence to support it. The court must view the record in a light most favorable to the accused (People v Watts, supra, at p 301; People v Steele, supra, at p 529) and, if any reasonable view of the evidence would permit the fact finder to decide that the conduct of the accused was justified, an instruction on the defense should be given (People v Padgett, supra, at pp 144-145). Under such circumstances, refusal to charge that the People must disprove the alleged justification is reversible error (see, People v Watts, supra, at p 301; People v Torre, supra, at p 1037; People v Steele, supra, at p 529).

Here, defendant testified that he fired the rifle to "scare off” the five males who were beating and robbing his companion. Some members of the group, he said, were armed, had threatened him and his companion, and had chased him home while brandishing pistols. The evidence was sufficient to support a jury finding that defendant reasonably believed his actions were necessary to protect his companion from the use of deadly force and robbery. Consequently, with regard to the charge of depraved indifference murder — as with intentional murder — defendant was entitled to an instruction that the People had the burden of proving beyond a reasonable doubt that defendant’s use of deadly physical force was not justified (Penal Law § 35.15). Here, the court could have given that instruction as part of its charge dealing with the elements of the crime and what must be proven to establish guilt. Alternatively, it could have given the requested charge separately as a "defense” after charging the elements. Because the court did neither, there must be a reversal and a new trial.

Accordingly, the order of the Appellate Division should be reversed, the conviction vacated, and the case remitted for a new trial.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Alexander concur; Judge Titone taking no part.

Order reversed, etc.

      . Section 35.15 outlines the circumstances under which the use of physical force in defense of a person is justified. Subdivision (1) of that section provides, in part: "A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person”. (See also, Penal Law § 35.05 [2] and § 35.10 [6].)
      Subdivision (1) provides a limitation upon the foregoing where the force used is deadly. A person may only use such force upon another in certain specified situations, including where:
      "(a) He reasonably believes that such other person is using or about to use deadly physical force * * * or
      "(b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery”.

      . "Recklessly” is defined in Penal Law § 15.05 (3) which provides, in part, that a "person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur”.

      . Depraved indifference murder is defined in Penal Law § 125.25 (2) which provides that a "person is guilty of murder in the second degree when * * * lufnder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (emphasis added).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Joseph E. Myers, a Justice of the Norfolk Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued May 29, 1986;
    decided July 1, 1986

      POINTS OF COUNSEL

      Matthew A. King for petitioner.
    I. The creditable evidence on the record does not support the determinations of the State Commission on Judicial Conduct that petitioner herein in any way presided over the matter of People v Kerr, or that petitioner attempted to conceal any misconduct from the Commission. II. The denial by the Commission to hold oral argument in the City of Albany rather than New York City violated petitioner’s right to effective assistance of counsel at that proceeding and the Commission had no legitimate reason for denying that request. III. There is no creditable evidence on the record that petitioner engaged in any conduct for which removal is an appropriate remedy. (Matter of Steinberg, 51 NY2d 74; Matter of Shilling, 51 NY2d 397; Matter of Kane, 50 NY2d 360.)

      Gerald Stern and Jean M. Savanyu for respondent.
    I. Petitioner’s conduct violated established ethical standards and warrants removal from office. (Matter of Reedy, 64 NY2d 299; Matter of Randel, 158 NY 216; Marine Midland Bank v Russo Produce Co., 50 NY2d 31; Matter of Sims, 61 NY2d 349; Matter of Wait, 67 NY2d 15; Matter of Steinberg, 51 NY2d 74; Matter of Jones, 47 NY2d [mmm].) II. Petitioner was not deprived of the opportunity for the assistance of counsel.
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Town Justice of the Town of Norfolk, St. Lawrence County, commenced this proceeding to review a determination of the State Commission on Judicial Conduct that he violated the rules and canons governing judicial conduct by preparing a criminal summons and otherwise participating in a matter in which he, his son, and his daughter all had an interest. The Commission determined the appropriate sanction to be removal. Petitioner asserts that the evidence did not support the Commission’s determination and that the sanction of removal was too harsh.

The Commission proceedings were commenced on January 8, 1985, when a complaint was served on petitioner containing one charge setting forth several separate instances of misconduct in violation of sections 100.1 and 100.2 of the Rules Governing Judicial Conduct (22 NYCRR 100.1, 100.2) and canons 1 and 2 of the Code of Judicial Conduct. First, the complaint alleged that petitioner failed to disqualify himself in connection with an action entitled People v Kerr, arising from an automobile accident in which Kerr allegedly caused damage to an automobile owned by petitioner’s daughter and insured under an insurance policy for which petitioner paid the premiums.

Second, the complaint alleged that petitioner engaged in a discussion with Thomas Matzell, the Chief of the Norfolk Town Police Department, which led Chief Matzell to prepare a uniform traffic ticket and simplified traffic information so that there would be a basis for issuing a criminal summons against Kerr. The ticket, charging Kerr with failure to keep right, was returnable before petitioner in Norfolk Town Court on March 15, 1984. According to testimony adduced at a hearing conducted on April 2, 1985, Chief Matzell placed the ticket and all of the supporting documents on petitioner’s desk. Approximately two days later, he found in his mailbox in the town hall an unsigned criminal summons for Terry L. Kerr. Chief Matzell attempted to serve the summons on Kerr that weekend, but was unable to do so, and, therefore, returned the summons to petitioner at his office.

The third count of the complaint alleged that petitioner subsequently requested State Trooper Michael C. Swyers to serve the unsigned summons on Kerr. Trooper Swyers testified at the hearing that he refused to do so because he was uncertain of using a criminal summons in a traffic case. Thereafter, petitioner had a discussion with Detective Sergeant Dominic Germano of the St. Lawrence County Sheriff’s Department and indicated that no one had been able to serve the summons on Kerr. Sergeant Germano offered to attempt to serve the summons and subsequently did so.

The complaint alleged as a fourth count that petitioner telephoned Kerr’s home after Kerr failed to appear in court on March 15, 1984 and asked Kerr’s sister why her brother had not appeared. Petitioner allegedly stated that if Kerr did not pay for the damages to the automobile, petitioner would write to Albany to have Kerr’s license suspended.

At the hearing conducted in Canton, New York, on April 2, 1985, testimony was adduced on each count in the complaint. Moreover, other instances of misconduct were revealed which, although not alleged in the complaint, were relevant to the allegations therein. Specifically, there was evidence that petitioner wrote a note, dated March 15, 1984, addressed to his fellow Judge in the Norfolk Town Court, John J. Tanski, stating that petitioner could not handle the Kerr matter and purporting to transfer the case. However, Judge Tanski testified that he had never seen the uniform traffic ticket or the note regarding the case until the Commission staff sent him copies. Furthermore, Trooper Swyers testified that a few weeks prior to the hearing in this proceeding, petitioner had accused him of lying in a statement to the Commission regarding the Kerr matter, and had threatened that he would do his best to get Trooper Swyers fired. Petitioner did not testify and he called no witnesses. In his summation at the hearing, however, when not under oath, petitioner denied all of the allegations against him.

The Referee found that each count in the complaint had been sustained, except for the fourth which alleges petitioner’s telephone call to Kerr’s home in the spring of 1984. The Referee concluded that, by his conduct in discussing with police officers the issuance and service of the criminal summons against Kerr, as well as by "his failure to withdraw from the Kerr matter and assign the same to the other judge”, petitioner had engaged in misconduct and had violated established ethical standards.

The Commission affirmed the Referee’s findings, and determined that petitioner had violated sections 100.1 and 100.2 of the Rules Governing Judicial Conduct and canons 1, 2 and 3 (C) (1) of the Code of Judicial Conduct. The Commission further stated that petitioner "seriously exacerbated his misconduct by attempting to make it appear that he had intended to disqualify himself in a note that was never delivered to his fellow judge”, and "further compounded his misconduct by threatening a witness in the Commission proceeding against him.” The Commission concluded that the appropriate sanction was removal from office. This petition followed.

Review of this proceeding reveals that the allegations in the complaint, except those contained in count four, were supported by the evidence and should be confirmed and that the determined sanction should be accepted.

The testimony of Police Chief Thomas Matzell, Sergeant Dominic Germano, and Trooper Michael Swyers established that petitioner prepared a criminal summons to bring into his court a party to a dispute in which he, his son, and his daughter all had a personal interest. Petitioner’s exploitation of the criminal process and misuse of his judicial office for his own and his family’s personal gain was an egregious violation of judicial ethics (see, e.g., Matter of Wait, 67 NY2d 15; Matter of Reedy, 64 NY2d 299; Matter of Sims, 61 NY2d 349). Furthermore, the testimony of Honorable John Tanski established that petitioner compounded his misconduct by his efforts to conceal his improper activity. By providing the note to a Commission investigator, petitioner sought to obstruct the Commission’s discharge of its lawful mandate. Such deception is antithetical to the role of a Judge who is sworn to uphold the law and seek the truth (see, Matter of Steinberg, 51 NY2d 74, 78, n 1). Finally, petitioner attempted to impede the Commission’s investigative efforts by intimidating a witness (see, Matter of Fabrizio, 65 NY2d 275, 277).

In short, petitioner has clearly abused the power of his office in a manner that has brought disrepute to the judiciary and damaged public confidence in the integrity of his court. The more particularly is this so in view of petitioner’s failure to testify concerning the charges (see, Matter of Randel, 158 NY 216; Matter of Reedy, supra, at p 302). This breach of public trust calls for the sanction of removal from office (see, Matter of Wait, supra; Matter of Reedy, supra; Matter of Sims, supra). We have examined petitioner’s remaining contention and find it to be without merit.

Accordingly, the determined sanction should be accepted, without costs.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Titone and Hancock, Jr., concur in Per Curiam opinion; Judge Alexander taking no part.

Determined sanction accepted, without costs, and Joseph E. Myers is removed from the office of Justice of Norfolk Town Court.


text:
    The People of the State of New York, Respondent-Appellant, v Charles L. Brown, Appellant-Respondent.
    Argued May 27, 1986;
    decided July 1, 1986

      POINTS OF COUNSEL

      Susan P. Wheatley, Rose H. Sconiers and John A. Ziegler for appellant-respondent.
    I. The prosecution’s failure to disclose requested, favorable identification information, failure to preserve relevant photo arrays, and misleading of the defense and the Wade court deprived appellant of his due process right to a fair trial. (Brady v Maryland, 373 US 83; United States v Agurs, 427 US 97; United States v Menghi, 641 F2d 72; People v Geaslen, 54 NY2d 510; People v Shea, 54 AD2d 722; People v Brown, 117 Misc 2d 587; People v Ahmed, 20 NY2d 958; People v Simmons, 36 NY2d 126; People v Johnson, 106 AD2d 469; United States v Wade, 388 US 218.) II. Appellant was deprived of due process of law by denial of his motion to reopen the Wade hearing. (People v Martin, 35 AD2d 786; People v Fuentes, 53 NY2d 892; People v Villani, 59 NY2d 781.) III. The trial court erred in admitting, over defense objection, medical testimony which lacks sufficient probative force to be relevant. (Matott v Ward, 48 NY2d 455; Matter of Miller v National Cabinet Co., 8 NY2d 277; People u Feldman, 299 NY 153; People v Nitzberg, 287 NY 183; People v Sandoval, 34 NY2d 371.)

      Richard J. Arcara, District Attorney (Rosemarie A. Wyman and John J. DeFranks of counsel), for respondent-appellant.
    I. No violation pursuant to the authority of Brady v Maryland (373 US 83) occurred in the instant case. Accordingly, a new trial is not warranted. (United States v Agurs, 427 US 97; People v Simmons, 36 NY2d 126; People v Geaslen, 54 NY2d 510.) II. Defendant has waived his right to reopen the Wade hearing; nonetheless, the lower court’s denial of defendant’s motion at the time of defendant’s sentence was proper. III. The issue of the admissibility of the opinion evidence of a medical expert, whose qualifications went unchallenged below has not been preserved for this court’s review; nevertheless, the testimony of Dr. James Hassett was properly received.
      (People v Thomas, 53 NY2d 983; Tubiola v Baker, 225 App Div 420; People v Bethune, 105 AD2d 262; Matott v Ward, 48 NY2d 455; People v Allweiss, 48 NY2d 40; Matter of Miller v National Cabinet Co., 8 NY2d 277.) IV. Defendant’s convictions of criminal use of a firearm in the first degree were erroneously dismissed by the court below and should be reinstated by this court. (People v Williams, 47 AD2d 262; People v Lopez, 79 AD2d 531; People v Gaul, 63 AD2d 563; People v Almestica, 42 NY2d 222; People v Horne, 121 Misc 2d 389.)
   OPINION OF THE COURT

Per Curiam.

These cross appeals concern the consequence of the People’s failure to produce photo arrays in response to defendant’s request, the admissibility of expert testimony, and the propriety of separate convictions of robbery in the first degree involving a firearm and criminal use of the same firearm.

On February 5, 1981, several masked men entered a Buffalo tavern and committed a gunpoint robbery. Five days later, Merrel Sanford, a special police officer who had chanced upon the incident, identified defendant from a photo array as a participant in the robbery. Indicted for robbery, criminal use of a firearm, and unlawful imprisonment, defendant made a demand for production of documents and a Brady request, including a request for "photos that were used in the photograph identification”. The People responded that there was no Brady material, and offered to make available the District Attorney’s file (other than work product and Grand Jury minutes) for defendant’s inspection. At a Wade hearing, which resulted in denial of defendant’s motion to suppress any identification evidence, the People displayed the five photographs used when defendant was identified. Moreover, they assured defense counsel (contrary to doubts he had voiced) that there was no photograph of defendant in a first array that had been viewed by Sanford, and that a parole picture of defendant was used because it was the only recent photograph the People had of defendant. In a letter three days later, the People advised defense counsel that the first photo array shown to Sanford was not in existence.

At a bench trial commencing June 23, 1982 before the same Judge who denied defendant’s suppression motion, Sanford was extensively cross-examined about his prior identification of defendant. He testified that he had viewed at least two photo arrays — the first immediately following the crime, at which defendant’s picture did not appear, and the second five days later, when he was shown more than one picture of defendant. During the cross-examination, in response to defense counsel’s question, the People assured him that the photographs were still available. Defendant made no objection to Sanford’s identification testimony, no effort to reopen the Wade hearing, and no mention of the People’s failure to produce in his comprehensive motion at the close of the People’s case or elsewhere, until after the court had determined that defendant was guilty. The Appellate Division modified the judgment of conviction of seven counts of robbery in the first degree (Penal Law § 160.15 [4]), one count of robbery in the first degree (Penal Law § 160.15 [2]), and two counts of criminal use of a firearm in the first degree (Penal Law § 265.09 [2]) by reversing the two weapons counts, and otherwise affirmed. Both parties appeal.

Defendant urges that the People violated Brady by failing to produce the photographs in response to his requests, and that he was therefore denied a fair trial. Assuming the disputed information is Brady material, we conclude that defendant is entitled neither to a new trial nor to reopen the Wade hearing. While the People unquestionably have a duty to disclose exculpatory material in their control (see, People v Simmons, 36 NY2d 126, 131), and failure to respond to a specific, relevant request is seldom, if ever, excusable (see, People v Cwikla, 46 NY2d 434, 441), here — though the prosecutor’s conduct with respect to production is hardly laudable —reversal is not required. The information was known to defense counsel at the latest during his cross-examination of Sanford (cf. People v Ahmed, 20 NY2d 958), when the details of the various arrays were elicited and the photographs still available for inspection, yet defendant took no steps to challenge the identification based on that information until after he was found guilty. Defendant cannot claim that he was deprived of due process when he had the opportunity during the bench trial to cross-examine the identifying witness using the allegedly exculpatory evidence (see, People v Smith, 63 NY2d 41, 68, cert denied — US —, 105 S Ct 1226; compare, People v Geaslen, 54 NY2d 510). Similarly, in these circumstances the trial court did not abuse its discretion in denying defendant’s posttrial motion to reopen the Wade hearing (see, CPL 710.40 [4]; People v Fuentes, 53 NY2d 892).

'Nor is there merit to defendant’s contention that — in a case where the testimony indicated two shots had been fired at the person identified as defendant, and he was seen several hours later with his head and hand bleeding and bandaged— the expert medical testimony regarding scars found on defendant’s body should have been stricken as speculative. Expert conclusions need not be asserted with certainty, so long as the witness demonstrates a degree of confidence in his conclusions sufficient to satisfy accepted standards of reliability (see, Matter of Anthony M., 63 NY2d 270, 280; Matott v Ward, 48 NY2d 455, 459). The weight to be accorded such testimony lies within the province of the trier of fact (People v Thomas, 53 NY2d 983). Defendant’s objection, made at the close of the doctor’s testimony, was to strike that testimony in its entirety as speculative. The trial court acted within its discretion in concluding that the testimony as a whole was not without some probative value. While the doctor could not fix the dates of defendant’s wounds with any certainty, he was able to identify a scar on defendant’s left hand as an untreated bullet wound at least four months old.

Finally, reaching the People’s cross appeal, the Appellate Division properly concluded that robbery in the first degree could not serve as the predicate crime for the weapons counts. Defendant’s convictions of robbery in the first degree (Penal Law § 160.15) and criminal use of a weapon in the first degree (Penal Law § 265.09) are "concurrent counts” because defendant could receive only concurrent sentences (CPL 300.30 [3]; see, Penal Law § 70.25 [2]). However, neither crime is "greater” than the other — each being a class B felony — and they therefore constitute "non-inclusory concurrent counts” (CPL 300.30 [4]). Accordingly, the trial court was expressly authorized to consider all counts by CPL 300.40 (3) (a), which provides that, "[w]ith respect to non-inclusory concurrent counts, the court may in its discretion submit one or more or all thereof’.

Although technically proper, defendant’s convictions of both crimes should not stand. Neither crime contains an element which is not also an element of the other crime. The gun first elevated defendant’s robbery conviction to a class B violent felony; the class B felony and possession of that same gun then sustained the conviction for criminal possession of a firearm. When use of or display of a firearm is an element of a class B felony, the use or display of that same firearm cannot also be the predicate for criminal display of a firearm in the first degree. We therefore conclude that the convictions of both crimes under these circumstances constituted an abuse of discretion (compare, People v Leiva, 63 NY2d 288).

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

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion.

Order affirmed.


author: Simons, J.

text:
    In the Matter of Capital Newspapers Division of the Hearst Corporation et al., Respondents, v T. Garry Burns, as Records Access Officer for the Albany City Police Department, et al., Respondents, and James Tuffey, Intervenor-Appellant.
    Argued May 29, 1986;
    decided July 3, 1986

      POINTS OF COUNSEL

      Mark T. Walsh, Jr., for intervenor-appellant.
    I. The record sought is a personnel record used to evaluate intervenor’s performance toward continued employment, is within the ambit of New York Civil Rights Law § 50-a and is exempt from Freedom of Information Law disclosure under New York Public Officers Law § 87 (2) (a). (Matter of Kaplan, 294 NY 584; Matter of Gannett Co. v James, 108 Misc 2d 862, 86 AD2d 744; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of John P. v Whalen, 54 NY2d 89; Matter of Short v Board of Managers, 57 NY2d 399; Matter of Nichols v Gamso, 35 NY2d 35; Matter of Herald Co. v School Dist., 104 Misc 2d 1041; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Fitzpatrick v County of Nassau, 83 Misc 2d 884, 53 AD2d 628.) II. Disclosure of the requested information would constitute an unwarranted invasion of personal privacy. (Matter of Bahlman v Brier, 119 Misc 2d 110.)

      Peter L. Danziger, Salvatore D. Ferlazzo and Thomas F. Gleason for Capital Newspapers Division of the Hearst Corporation and another, respondents.
    The detective division "Lost Time Report” is subject to disclosure under the FOIL. Claimed exceptions relied on by the intervenor do not bar disclosure. (Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of Scott, Sardano & Pomeranz v Records Access Officer,
      65 NY2d 294; Matter of John P. v Whalen, 54 NY2d 89; Carpenter v City of Plattsburgh, 105 AD2d 295, 66 NY2d 791; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Gannett Co. v James, 108 Misc 2d 862, 86 AD2d 744; Brinkley v Casablancas, 80 AD2d 428; Montes v State of New York, 94 Misc 2d 972.)

      Robert Abrams, Attorney-General (Frank K. Walsh, Robert Hermann and Peter H. Schiff of counsel), for the Division of State Police and another, amici curiae.

    Personnel records used to evaluate performance toward continued employment or promotion of police officers and correction officers are absolutely exempt from FOIL disclosure under Civil Rights Law § 50-a (1). (Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of John P. v Whalen, 54 NY2d 89; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 65 NY2d 807; Roth v Michelson, 55 NY2d 278; Matter of Gannett Co. v James, 108 Misc 2d 862, 86 AD2d 744; Matter of Radich v Council of City of Lackawanna, 93 AD2d 559, 61 NY2d 652; Matter of Albano v Kirby, 36 NY2d 526.)
   OPINION OF THE COURT

Simons, J.

Petitioner Cipriano is a newspaper reporter. In the course of investigating administrative and fiscal procedures in the City of Albany, he was informed that certain members of the Albany police force were abusing the sick leave privileges accorded them by the collective bargaining agreement their union had negotiated with the city. He attempted to verify this information by a series of requests under the Freedom of Information Law (FOIL; Public Officers Law art 6) through which he sought access to police records containing "statistical or factual tabulations of data of the number of days and dates” on which certain named officers were absent from their scheduled employment. One of the requests concerned the records of Officer James Tuffey who was president of the local police officers’ union. Cipriano’s first request, for records of Tuffey’s absences during January 1983, was granted by the City Hall Records Access Officer and he was informed that Tuffey had not taken any sick time during January 1983. All Cipriano’s subsequent requests were denied.

This proceeding challenges only one of those denials, that which denied Cipriano’s request for records containing statistical or factual tabulations of sick time taken by Officer Tuffey during the month of February 1983. The City Hall Records Access Officer denied access to those records, contending that disclosure would constitute an unwarranted invasion of personal privacy (see, Public Officers Law § 87 [2] [b]; § 89 [2] [b]). On administrative appeal, however, Cipriano’s request was denied because the records were confidential and, absent the officer’s consent or a court order, exempt from disclosure by Civil Rights Law § 50-a.

Petitioners, Cipriano and his employer, then instituted this article 78 proceeding to compel the police department to release the record of Tuffey’s February sick time. Officer Tuffey moved to intervene in the proceeding and Special Term granted his request. The court thereafter examined in camera all records falling within the description of petitioners’ FOIL request and ruled that the "Lost Time Report” was not a personnel record within the meaning of Civil Rights Law § 50-a and that its release did not constitute an unwarranted invasion of personal privacy. Accordingly, it ordered release of the "Lost Time Report” in redacted form showing Tuffey’s absences from scheduled employment during February 1983. On appeal by the intervenor, the Appellate Division affirmed, but on different grounds. It found the information part of intervenor’s personnel record, but held, nonetheless, that the document should be released because Civil Rights Law § 50-a did not provide an exemption for FOIL requests, but rather was only intended to prevent a litigant in a civil or criminal action from obtaining documents in a police officer’s file that are not directly related to that action. The Appellate Division also agreed with Special Term that release of the "Lost Time Report” would not be an unwarranted invasion of personal privacy.

There should be an affirmance. The redacted "Lost Time Report” is not exempt from disclosure by Civil Rights Law § 50-a and intervenor has failed to show that its disclosure would constitute an unwarranted invasion of privacy.

The Freedom of Information Law expresses this State’s strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 79). The statute, enacted in furtherance of the public’s vested and inherent "right to know”, affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information to "make intelligent, informed choices with respect to both the direction and scope of governmental activities” and with an effective tool for exposing waste, negligence and abuse on the part of government officers (Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [citing Public Officers Law § 84]).

To implement this purpose, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted (see, Public Officers Law § 87 [2]; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 79-80, supra). This presumption specifically extends to intraagency and inter-agency materials, such as the report sought in this proceeding, comprised of "statistical or factual tabulations or data” (see, Public Officers Law § 87 [2] [g] [i]). Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access (see, Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 80, supra; Matter of Fink v Lefkowitz, 47 NY2d 567, 571, supra). Moreover, because FOIL has made full disclosure by public agencies a public right, the status or need of the person seeking access is generally of no consequence in construing FOIL and its exemptions. Finally, we note that, while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency’s discretion to disclose such records, with or without identifying details, if it so chooses (see, Matter of Short v Board of Managers, 57 NY2d 399, 404; Matter of John P. v Whalen, 54 NY2d 89, 94).

Intervenor relies on two FOIL exemptions to resist disclosure of his "Lost Time Report” for February 1983. First, he argues that the document is a personnel record within the meaning of Civil Rights Law § 50-a and, as such, is exempt from disclosure under Public Officers Law § 87 (2) (a). Second, he contends that release of the document is barred because it would constitute an unwarranted invasion of personal privacy under Public Officers Law § 87 (2) (b).

FOIL provides that an agency may deny access to records, or portions of records, that "are specifically exempted from disclosure by state or federal statute” (Public Officers Law § 87 [2] [a]). Intervenor urges that the "Lost Time Report” is a personnel record specifically exempted by Civil Rights Law § 50-a. That statute provides, in pertinent part, that: "All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency * * * shall be considered confidential and not subject to inspection or review without the express written consent of such police officer except as may be mandated by lawful court order.” Intervenor contends that even though no litigation involving him is pending this statute provides a blanket exemption foreclosing disclosure without his consent of any police personnel records used to evaluate his performance. Although we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting a FOIL disclosure claims as protection (see, Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 81, supra; Matter of John P. v Whalen, 54 NY2d 89, 96-97, supra). The legislative history does not indicate that the Civil Rights Law provision was enacted with the intention claimed by intervenor.

Prior to the enactment of section 50-a, the confidentiality of police records was governed by common-law rules governing privileged "official information” which permitted public officials to withhold official records or communications under some circumstances (see generally, Cirale v 80 Pine St. Corp., 35 NY2d 113, 117-119; People v Keating, 286 App Div 150, 153 [Breitel, J.]). The privilege was said to be highly qualified, however, and the court could compel disclosure where it was necessary to avoid false testimony or to secure useful testimony (see, People v Keating, 286 App Div 150, 153, supra [citing 8 Wigmore, Evidence, at 756 [3d ed]). The enactment of the broad disclosure provisions of CPLR article 31 permitted parties to obtain evidence "material and necessary” to pending actions or proceedings and, as litigation involving municipalities and police officers multiplied, these provisions were used increasingly to obtain police records to attack police officers’ credibility in pending litigation or for harassment purposes. Section 50-a was enacted to control that practice (see, Memorandum of Senator Padavan and Assemblyman De Salvio, and Memorandum of Division of Criminal Justice Services, Governor’s Bill Jacket, L 1976, ch 413; see also, Assembly Debates, June 1, 1976, at 7335-7343; Opn of Committee on Public Access to Records [FOIL-AO-904], Sept. 6, 1978). We recognized that underlying purpose in Carpenter v City of Plattsburgh, when we affirmed an Appellate Division determination that section 50-a "was designed to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination” (Carpenter v City of Plattsburgh, 105 AD2d 295, 298 [Main, J.], affd for reasons stated below 66 NY2d 791).

The intent behind the legislation was reaffirmed in 1981 when the section was amended to extend its protections to local corrections officers (L 1981, ch 778). The amendment was sponsored by Senator Marino, who had also been active in formulating the FOIL (see generally, Marino, New York Freedom of Information Law, 43 Fordham L Rev 83). His memorandum sponsoring the amendment to section 50-a stated that statutory protection should be expanded because: "The increasing number of legal actions brought by inmates and ex-inmates of correctional facilities has been accompanied by an increase in the number of requests from counsel representing them for unlimited access to personnel records of corrections officers. Corrections Officers are concerned that such unrestricted examinations of their personnel records increases their vulnerability to harassment or reprisals. To help alleviate this concern and to promote better relations between corrections officers and their governmental employers, this legislation imposes reasonable limitations on access to personnel records in the custody of a sheriffs office or county department of corrections.” (1981 NY Legis Ann, at 419.)

Given this history, the Appellate Division correctly determined that the legislative intent underlying the enactment of Civil Rights Law § 50-a was narrowly specific, "to prevent time-consuming and perhaps vexatious investigation into irrelevant collateral matters in the context of a civil or criminal action” (Matter of Capital Newspapers v Burns, 109 AD2d 92, 96). In view of FOIL’S presumption of access, our practice of construing FOIL exemptions narrowly, and this legislative history, section 50-a should not be construed to exempt intervenor’s "Lost Time Report” from disclosure by the police department in a nonlitigation context under Public Officers Law § 87 (2) (a).

Intervenor contends that Matter of Gannett Co. v James (86 AD2d 744, lv denied 56 NY2d 502) holds otherwise. Indeed, in that case the Appellate Division did construe Civil Rights Law § 50-a as granting a blanket exemption from FOIL disclosure to police personnel records sought by a nonlitigating newspaper. The result reached by the court was clearly correct, however, for each of the requests purportedly exempted from disclosure by section 50-a in that case were also exempt under other FOIL provisions, namely Public Officers Law § 87 (2) (e), (g); § 89 (3) (see, id., pp 745-746). Thus, to the extent that the court held that section 50-a created a blanket exemption insulating police records from FOIL disclosure, its holding was unnecessary because statutory exemptions contained in other sections, which are generally available to public officials, adequately provided protection for the police in that case and should provide similar protection against future unwarranted requests. Insofar as the court in Gannett relied on a blanket exemption in section 50-a, it erred.

Intervenor Tuffey also claims that release of the "Lost Time Report” would constitute an unwarranted invasion of personal privacy and, hence, the document is exempt from FOIL disclosure under Public Officers Law § 87 (2) (b). He relies on two clauses of section 89 (2) (b), which set out the characteristics of an unwarranted invasion of personal privacy. They provide that

"(b) An unwarranted invasion of personal privacy includes, but shall not be limited to:

"i. disclosure of employment, medical or credit histories or personal references of applicants for employment

* * *

"iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or”.

As with all FOIL exemptions, intervenor has the burden of proving he is entitled to the exemption. He has not met that burden. Clause (i) of section 89 (2) (b) is inapplicable to the disputed record because it is neither an employment history (although it records facts concerning employment) nor a medical history, and it does not come within any of the other listed categories. Nor has intervenor satisfied his burden of proving exemption under clause (iv) because his assertion that he will suffer "economic or personal hardship” if the "Lost Time Report” is released to the newspaper is conclusory and not supported by any facts (see, Matter of Gannett Co. v County of Monroe, 59 AD2d 309, 312, affd on opn below 45 NY2d 954).

In sum, Officer Tuffey has failed to demonstrate that the material requested by investigative reporter Cipriano comes squarely within a FOIL exemption such that the police department would be justified in barring access to the information by the public or the press.

Accordingly, the order of the Appellate Division granting release of the redacted "Lost Time Report” should be affirmed.

Chief Judge Wachtler and Judges Meyer, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed, with costs.

       Both the statute itself, and our case law interpreting it, speak only of the agency’s burden of proof when its denial of disclosure to a FOIL applicant is challenged in an article 78 proceeding (see, e.g., Public Officers Law § 89 [4] [b]; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 80; Matter of Fink v Lefkowitz, 47 NY2d 567, 571). Here, neither the police department nor the City Hall Records Access Officer appealed the decision of Special Term to release the redacted "Lost Time Record”. The appeal is prosecuted solely by intervenor Tuffey, and it is he who seeks to have this court apply a FOIL exemption to bar access to his records. We note that FOIL does not specifically grant a public employee the right to resist disclosure of agency records. The issue of intervenor’s standing to prosecute this appeal is not before us, however, and the parties below consented to Tuffey’s intervention to protect his interests in nondisclosure. Thus, on the record before us we do not reach the issue whether a public employee has a cause of action under FOIL to prevent disclosure (compare, Carpenter v City of Plattsburgh, 105 AD2d 295 [Main, J.], affd for reasons stated below 66 NY2d 791). Nor do we reach the issue of whether an agency’s failure to appeal from court-ordered release of agency records is tantamount to a nonreviewable discretionary decision on the part of the agency to release records it might have exempted from disclosure under Public Officers Law § 87 (2)’s permissive exemption provision.


text:
    In the Matter of Nancy Colton, as Administratrix of the Estate of Donne Colton, Deceased, Appellant, v Xavier C. Riccobono, as Administrative Judge, et al., Respondents, and New York Hospital et al., Additional Respondents.
    Submitted May 27, 1986;
    decided July 3, 1986

      POINTS OF COUNSEL

      Norman H. Dachs, Steven M. Jaeger and Christopher Carpentieri for appellant.
    The statute and regulation which respondents claim require that a medical malpractice panel hearing be held before an action can be tried, as applied in petitioner’s pending action, unconstitutionally deprive petitioner of reasonable access to the courts and of due process of law because the medical specialty involved, renal transplant surgery, is so unique that it is unlikely such a specialist will ever be found to serve on a panel. (Matter of Williams v White Plains Hous. Auth., 62 Misc 2d 613, 35 AD2d 965; Musso v Westfield Mem. Hosp., 64 AD2d 851, 45 NY2d 834; Comiskey v Arlen, 55 AD2d 304, 43 NY2d 696; Matter of Rappl & Hoenig Co. v New York State Dept. of Envtl. Conservation, 61 AD2d 20, 47 NY2d 925; Plachte v Bancroft, Inc., 3 AD2d 437; Headly v Noto, 22 NY2d 1; Wanger v Zeh, 45 Misc 2d 93; Feder Corp. v Bozkurtian, 48 AD2d 701; Stone v Buffalo Gen. Hosp., 117 Misc 2d 889.)

      Michael Colodner and Patricia P. Satterfield for Xavier C. Riccobono and another, respondents.
    Respondents lack the authority to direct an immediate trial of medical malpractice actions or to transfer such actions to another county for the panel hearings required by Judiciary Law § 148-a. (Rosa v Kulkarni, 113 Misc 2d 39, 89 AD2d 529; Gold v Hershey, 90 AD2d 704; Kasni v Krasner, 91 AD2d 512; Ricozzi v Balchunas, 97 AD2d 506; Matter of McCabe v DeLuca, 107 AD2d 1097; Matter of Seagraves v Cromarty, 110 AD2d 734.)

      George Van Setter and Timothy J. Sheehan for New York Hospital and others, respondents.
    I. Appeal to Court of Appeals cannot lie where appellant fails to establish that the opinion below is both final and based on constitutional grounds. (Matter of Gladstone v Association of Bar, 19 NY2d 603; Meenan v Meenan, 1 NY2d 269; Matter of Haydorn v Carroll, 225 NY 84; Matter of Durr v Paragon Trading Corp., 270 NY 464; Matter of Sheerin v New York Fire Dept., 46 NY2d 488; Matter of De Zimm v Connelie, 64 NY2d 860; Matter of Morgenthau v Cooke, 56 NY2d 24.) II. The statutory interpretation of the court below — as urged by appellant — is proper in all respects. (Gold v Hershey, 90 AD2d 704; Lawrence Constr. Corp. v State of New York, 293 NY 634.) III. Appellant has failed to demonstrate that the operation of Judiciary Law § 148-a deprived her of any cognizable constitutional right. (Matter of Williams v White Plains Hous. Auth., 63 Misc 2d 613, 35 AD2d 965; Mathews v Eldridge, 424 US 319; Leis v Flynt, 439 US 438; Logan v Zimmerman Brush Co., 455 US 422; Goldberg v Kelly, 397 US 254; Morrissey v Brewer, 408 US 471; Boddie v Connecticut, 401 US 371; West Coast

      Hotel Co. v Parrish, 300 US 379; Maresca v Cuomo, 64 NY2d 242.)
   OPINION OF THE COURT

Simons, J.

Petitioner instituted this article 78 proceeding seeking an order compelling respondent Riccobono, Administrative Judge of the First Judicial District, and respondent Reynolds, Clerk of the Medical Malpractice Part of Supreme Court, New York County, to immediately assemble a medical malpractice panel pursuant to Judiciary Law § 148-a and the Rules of the Appellate Division (22 NYCRR 636.1) to review and report on the claim petitioner has asserted against the additional respondents in a pending medical malpractice action. Alternatively, petitioner requests that the court either waive a panel hearing and order the action to trial or transfer it to a county other than New York County in which a suitable physician member of the panel may more easily be found. The Appellate Division dismissed the petition, without opinion, and petitioner appeals asserting that application of the statute and regulation unconstitutionally deprive her of access to the courts.

Petitioner’s underlying action was commenced against the additional respondents, the New York Hospital and various doctors, on May 16, 1974. In that action she alleges that her husband, Donne Colton, underwent a surgical procedure known as a right donor nephrectomy, that the additional respondents were negligent and guilty of malpractice in recommending and performing that procedure, and that as a result her husband sustained serious injuries and eventually died. Petitioner filed a note of issue with certificate of readiness nine and one-half years later, on December 29, 1983, and a prepanel conference was held on December 17, 1984. A panel hearing had not taken place at the time this proceeding was commenced five months later.

Judiciary Law § 148-a requires that, as a condition precedent to the trial of a medical malpractice action, a medical malpractice panel consisting of a Judge, physician and attorney must hear and evaluate the evidence in the action and issue a recommendation on the question of liability. Typically, after a note of issue is filed, the clerk calendars the action and a prepanel hearing is scheduled at which the parties may discuss the merits of the case and, if settlement is not possible, agree upon the medical specialty involved. The action is then referred to the Medical Malpractice Part, grouped with other cases by specialty, and scheduled for hearings chronologically unless mitigating circumstances warrant expedited action. The hearing is informal, with no stenographic record, and if the three members of the panel concur as to the question of liability, a formal written recommendation concerning such liability is signed by the panel members and forwarded to all parties. A unanimous recommendation is admissible in the subsequent trial of the action and the attorney and physician panel members concurring in it may be called to testify by either party (see, Bernstein v Bodean, 53 NY2d 520). The physician and attorney panelists are chosen from a list prepared by the Presiding Justices of the Appellate Division, the physicians being chosen from a list prepared with the assistance of the State or county medical society or the New York Academy of Medicine.

Petitioner contends that she is ready to proceed but that her trial has been delayed because of difficulty in assembling and convening a panel, that the delay will continue indefinitely denying her access to the courts and, therefore, that she is entitled to an order of mandamus.

Mandamus will not issue absent proof of a clear legal right to the relief requested, and even then issuance is a matter reserved for the discretion of the court (see, Matter of Crane Co. v Anaconda Co., 39 NY2d 14, 18). Petitioner’s claim of right rests solely on constitutional due process grounds; she claims that she has a property interest in access to the courts and that application of the statute and rule unfairly deprive her of that access. On this appeal she contends that the required mediation prevents her from proceeding to trial because no renal transplant specialist can be found to serve as a physician member of the panel and thus no hearing can ever be conducted. That argument was not presented below and, accordingly, it is not preserved for appeal (see, Cibro Petroleum Prods. v Chu, 67 NY2d 806). Our consideration is limited to the contention which petitioner did present below, that section 148-a and the Appellate Division Rules, as applied to her, deny her access to the courts because of the delay in assembling a hearing panel. That question is properly raised in this article 78 proceeding (see, Matter of Kovarsky v Housing & Dev. Admin., 31 NY2d 184, 190; cf. Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400, 407-408).

Access to the civil courts is primarily a matter of State concern and legislatures have been granted broad latitude in establishing the machinery for resolving disputes as long as the challenged provision is adopted in the interest of the community, is reasonable in relation to its subject, and affords litigants the fundamentals of procedural due process (see, Boddie v Connecticut, 401 US 371, 375-376; West Coast Hotel Co. v Parrish, 300 US 379, 391; and see, Note, Constitutional Considerations of Medical Malpractice Screening Panels, 27 Am U L Rev 161, 168). As a general rule, access to the courts in and of itself is not a right protected by the Constitution. It will be required only when the right sought to be asserted is one recognized as carrying a preferred status in the constitutional sense, and so entitled to special protection, and only then when there is no alternative forum where vindication of the right may be sought (Montgomery v Daniels, 38 NY2d 41, 60; Boddie v Connecticut, supra). When no such fundamental interest is at stake, the State is free to condition access to the courts (Ortwein v Schwab, 410 US 656; United States v Kras, 409 US 434) or deny it on an arbitrary basis without a hearing (Leis v Flynt, 439 US 438; see generally, 2 Rotunda, Nowak & Young, Constitutional Law: Substance and Procedure § 17.2). Nevertheless, a State may create a right of access by its Constitution or statutes, as petitioner claims it has done here (see, NY Const, art I, § 16), and if it does, the Legislature may not alter or restrict this property right arbitrarily (see, Logan v Zimmerman Brush Co., 455 US 422; Ortwein v Schwab, supra; United States v Kras, supra; Woods v Holy Cross Hosp., 591 F2d 1164 [involving a similar mediation procedure]; 2 Rotunda, Nowak & Young, op. cit., § 17.10). Although our State Constitution does not create a per se right of access to civil courts, it does prohibit the Legislature from abrogating the cause of action for wrongful death. Unless the Legislature removes jurisdiction of such causes of action from the civil courts and provides an alternative remedy, as it has for a limited number of other causes of action (see, e.g., Insurance Law § 5104 [no-fault]; Workers’ Compensation Law § 11 [workers’ compensation]), petitioner has, by implication, a right of access to the civil courts to plead and prove her wrongful death cause of action.

Judiciary Law § 148-a was one of a series of legislative responses to rising medical malpractice insurance rates. It was seen as a means of better equipping litigants to mediate a settlement, if warranted, or to prepare and narrow the issues for trial, if trial was required, thereby reducing the cost of litigation and helping preserve quality health care in this State. Since the legislation bears a rational relationship to that need, it does not violate substantive due process concerns (see, Treyball v Clark, 65 NY2d 589, 590-591; Bernstein v Bodean, 53 NY2d 520, 527, supra; Comiskey v Arlen, 55 AD2d 304, 314, affd 43 NY2d 696; see also, Woods v Holy Cross Hosp., supra; Note, Medical Malpractice Mediation Panels: A Constitutional Analysis, 46 Fordham L Rev 322).

Insofar as petitioner claims that the mediation process is procedurally unfair because it has delayed her trial, the short answer is that she has failed to demonstrate that her case has not moved toward hearing in timely fashion. The record indicates that the customary time elapsing before malpractice panels are assembled and convened, from calendaring to hearing, is one year. Petitioner has not established that the time involved in her case differs significantly from other malpractice actions or that she has been prejudiced as a result of it. Moreover, notwithstanding her own lengthy delay in noticing her case for trial, petitioner did not move for an expedited prepanel conference or for a panel to be promptly assembled when the note of issue was filed. Rather she waited almost a year for the prepanel hearing in December 1984 and even then she did not move to expedite the hearing at the prepanel conference. Instead, after several months, she commenced this proceeding.

Finally, even if petitioner could demonstrate egregious delay, any claimed constitutional violation would in most, if not all, cases be obviated by other remedies available to her. Although nothing in the statute appears to permit respondents to waive pretrial malpractice mediation (see, Rosa v Kulkarni, 89 AD2d 529; Gold v Hershey, 90 AD2d 704; Kasni v Krasner, 91 AD2d 512; Tobin v Ruskin, 91 AD2d 580) they may, in their discretion, transfer the matter to another county, as they have done in the past when they thought transfer warranted by the circumstances presented (see, Matter of Geier v DeLuca, App Div, 2d Dept, Dec. 11, 1984, appeal dismissed 64 NY2d 1040; Matter of Seagraves v Cromarty, 110 AD2d 734; see also, Matter of McCabe v DeLuca, 107 AD2d 1097; see also, 22 NYCRR 636.1 [e], eff Jan. 1, 1986). The Appellate Division declined to exercise its discretion to do so in this case and we find no basis for petitioner’s claim that its determination resulted in an unconstitutional denial of due process.

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

Judges Meyer, Kaye, Alexander, Titone and Hancock, Jr., concur; Chief Judge Wachtler taking no part.

Judgment affirmed, with costs.

       Shortly after this proceeding was commenced, Judiciary law § 148-a was amended to exempt the Fifth Judicial District and Suffolk County from the requirement of a medical malpractice panel (see, L 1985, ch 294, § 14, codified at Judiciary Law § 148-a [1]). Neither this change in the statute nor the recent adoption of a uniform rule governing malpractice panels for the State’s trial level courts (see, 22 NYCRR 202.56) affects the outcome or determination of this proceeding.


text:
    In the Matter of James A. Michaelsen et al., Respondents, v New York State Tax Commission, Appellant.
    Argued May 30, 1986;
    decided July 8, 1986

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Wayne L. Benjamin, Robert Hermann and Peter H. Schiff of counsel), for appellant.
    The court below erred in valuing the option on the difference between the option price when granted and the fair market value of the stock when exercisable; the option should have been valued on the difference between the option price when granted and the fair market value of the stock when exercised. (Shamburger v Commissioner of Internal Revenue, 508 F2d 883; Commissioner v Smith, 324 US 177; Commissioner v LoBue, 351 US 243; McDonald v Commissioner of Internal Revenue, 764 F2d 322; Matter of Friedsam v State Tax Commn., 64 NY2d 76; Matter of Hunt v State Tax Commn., 65 NY2d 13; Matter of Pardee v State Tax Commn., 89 AD2d 294; Divine v Commissioner of Internal Revenue, 500 F2d 1041.)

      Arnold Y. Kapiloff for respondents.
    I. New York Tax Law § 632 Ob) (2) specifically excludes from New York taxation income or gain realized by a nonresident individual from the sale of shares of capital stock not used in a trade or business, regardless of the holding period of the stock or the manner in which the shares were purchased. (Matter of McCarthy, 39 Misc 2d 915.) II. The rules of statutory construction also require the exclusion from New York source income of the gain realized from the later sale of Avon shares of stock. (Radzanower v Touche Ross & Co., 426 US 148; Rogers u Village of Port Chester, 234 NY 182; Board of Coop. Educ. Servs. v Goldin, 38 AD2d 267, 30 NY2d 486; Matter of Epstein v State Tax Commn., 89 AD2d 256; Matter of Donahue v Chu, 104 AD2d 523; Matter of Pardee v State Tax Commn., 89 AD2d 294.) III. If any tax is due, the court below correctly determined that the compensation element inherent in the opinion should be computed as of the date the option first becomes exercisable.
   OPINION OF THE COURT

Simons, J.

In this article 78 proceeding challenging a State income tax assessment, the issue presented is the proper treatment to be afforded to a nonresident who exercises stock options granted to him as a form of compensation by his New York employer and who later disposes of the stock acquired pursuant to those options. We agree with the position now taken by the Tax Commission that the taxable gain is the difference between the option price and fair market value of the stock on the date the option is exercised, and that gain derived from the subsequent sale of such stock is not income derived from New York sources and thus not taxable.

In 1968, petitioner, James Michaelsen, a senior executive working for Avon Products, Inc. in New York City was granted certain stock options in Avon capital stock pursuant to a qualified employee stock option plan (see, Internal Revenue Code § 422; 26 USC § 422). He exercised the options by purchasing 3,000 shares of stock on March 13, 1972 and an additional 3,000 shares on February 22, 1973. In 1973, while a resident of Connecticut, he sold all the shares. He reported a gain of $179,761 for 1973 Federal income tax purposes but he did not report any part of that sum on his nonresident New York State income tax return for that year. Respondent Tax Commission audited petitioner’s return and assessed additional personal income tax liability in the amount of $19,017.12. Following a hearing, the Tax Commission determined that the stock was connected with petitioner’s employment and ruled that both the gain derived from the exercise of the option and the gain derived from the subsequent sale of the stock were taxable in New York under Tax Law § 632 (b) (1) (B).

Petitioner then commenced this article 78 proceeding to annul the Commission’s determination, contending that the gain from the sale of the Avon stock was not derived from New York sources. Special Term dismissed the petition, holding that "there was no evidence indicating that the options through which the stock was acquired were issued other than as a form of compensation to petitioner James Michaelsen for either past services or incentive for future services to his employer” (122 Misc 2d 824, 826). The Appellate Division held that the Tax Commission had improperly calculated the gain attributable to New York sources. It therefore remitted the matter to respondent Commission directing it to recompute the tax on the value of the stock options by " 'subtracting] the aggregate exercise price of each issue of options from the aggregate fair market value of the shares of stock on the date that the options became exercisable’ ” (107 AD2d 389, 391, quoting its decision in Matter of Donahue v Chu, 104 AD2d 523, 525). We granted the Commission leave to appeal.

The Tax Commission’s determination and the confirmation by Special Term attributed both the gain realized from the exercise of the option and the gain realized on the subsequent sale of the stock acquired by exercising the options to compensation for New York State income tax purposes. The Appellate Division holding allowed New York State to tax only the difference between the fair market value of the stock when the options become exercisable and the option price. That formula normally will result in no New York State tax consequences since qualified stock options are usually exercisable when granted and under Internal Revenue Code § 422 (b) (4) the option price, with a limited exception, must equal the fair market value of the stock when the option is granted.

Tax Law § 632 (a) (1) provides that the New York adjusted gross income of a nonresident individual shall include all income entering into a taxpayer’s Federal adjusted gross income, provided that it is "derived from or connected with New York sources”. Section 632 (b) (1) (B) provides that income attributable to a "business, trade, profession or occupation carried on in this state” shall be considered income derived from or connected with a New York source. Section 632 (b) (2) provides that "[i]ncome from intangible personal property, including * * * gains from the disposition of intangible personal property, shall constitute income derived from New York sources only to the extent that such income is from property employed in a business, trade, profession, or occupation carried on in this state”.

Because New York income tax law evinces a strong intent to conform to Federal authority wherever possible (Matter of Hunt v State Tax Commn., 65 NY2d 13, 16; Matter of Friedsam v State Tax Commn., 64 NY2d 76, 79-80), it is necessary for background purposes to review the Federal income tax consequences to petitioner in this case. For Federal income tax purposes, in addition to the tax on any gain that petitioner may have realized from the sale of the stock — the fair market value of the stock when sold less the fair market value of the stock on the date the option was exercised — there is also a tax imposed to reflect the compensation the employee received by virtue of having the ability to purchase the stock at less than its fair market value by exercising the option. This principle was firmly established by the Supreme Court in Commissioner v LoBue (351 US 243) and petitioner concedes the point.

The more difficult question is how the compensation derived from a stock option is valued. If an option, by virtue of its transferability, has a readily ascertainable fair market value when it is granted, it will be valued at the time it is received by the employee (Internal Revenue Code § 83 [a]; Treas Reg [26 CFR] § 1.83-7 [a]). An option granted, as here, pursuant to a qualified employee stock option plan is not transferable, however (Internal Revenue Code § 422 [b] [6]), and cannot have a readily ascertainable fair market value when it is granted (Treas Reg [26 CFR] § 1.83-7 [b] [1], [2]). Gain derived from these latter options is realized when the option is exercised; the option is valued by subtracting the option price from the fair market value of the stock when the option is exercised (Treas Reg [26 CFR] § 1.83-7 [a]). This gain is characterized by Federal authorities as compensation for services performed (Commissioner v LoBue, 351 US 243, 247, supra; Treas Reg [26 CFR] § 1.422-1 [b] [3], example [2]). Although the gain on qualified stock options, such as the options granted to petitioner, is realized at the time the options are exercised, the gain is not recognized until the stock is disposed of. Thus, although under Federal law both the gain on the appreciation of the stock after it is purchased and the compensation derived from the exercise of the option are actually recognized when the stock is sold, there are two realization events reflecting the taxation of two distinct accretions to income.

Federal law does not tax options without a readily ascertainable fair market value at the time they are exercisable because to do so would leave much of the economic value of the option untaxed. "[T]he fair market value of an option is not merely the difference that may exist at a particular time between the option’s exercise price and the value of the property subject to the option, but also includes the value of the option privilege for the remainder of the exercise period” (Treas Reg [26 CFR] § 1.83-7 [b] [3]). The option period is the time frame within which the option may be exercised. The option privilege is the opportunity to benefit from any increase in the value of property subject to the option during such period without risking any capital (id.).

These Federal tax consequences may be harmonized with Tax Law § 632. While the options granted to petitioner were compensation attributable to his "business, trade, profession or occupation carried on in this state” and therefore taxable in New York under Tax Law § 632 (b) (1) (B), the formula the Appellate Division applied to value the options was incorrect.

Taxing only the difference between the fair market value of the stock on the date the option is first exercisable and the option price differs from Federal law and leaves much of the compensation to the employee untaxed. Plainly the option on the date it becomes exercisable is worth more than merely the difference between the fair market value of the stock at that time and the option price. Indeed, they are usually the same. The employee’s compensation comes from employer’s willingness to let the employee benefit from market appreciation in the stock without risk to his own capital. Although, in a sense, the employee makes a passive investment decision if he does not exercise his option when the option becomes exercisable, still the option in actual fact is worth more on the date it becomes exercisable than simply the difference between the fair market value of the stock at that time and the option price, and is appropriately taxed as New York compensation. Because the option is not transferable (Internal Revenue Code § 422 [b] [6]), this extra value cannot be adequately measured on the date the option becomes exercisable (Treas Reg [26 CFR] § 1.83-7 [b] [2]). Thus, in conformity with Federal law, we conclude that the proper method of valuing the compensation derived from an option that has no readily ascertainable fair market value on the date it is granted is to subtract the option price from the fair market value of the stock on the date the option is exercised. Accordingly, we find that respondent’s determination that this income is taxable in New York under Tax Law § 632 (b) (1) (B) is rational.

We only add in passing that the analysis originally used by the Tax Commission (but which it now concedes was incorrect) and Special Term taxes more than the value of the option in that it also imposes a tax on the stock’s gain in value after it is purchased. This treatment mirrors the tax consequences imposed under Federal law, but results in the taxation of intangible personal property not derived from a New York source (Tax Law § 632 [b] [2]). Any gain petitioner realized from an increase in the market value of Avon stock between the time the option was exercised and the time the stock was sold is clearly investment income rather than compensation and, as a nonresident, petitioner cannot be taxed on this amount.

The record does not reveal the value of the Avon stock on the dates the options were exercised — the key dates for purposes of assessing the appropriate New York tax. Accordingly, we modify the order of the Appellate Division by remitting the matter to respondent Commission for an appropriate assessment of tax based upon the difference between the option prices and the fair market value of the stock when the options were exercised, and, as so modified, the order should be affirmed, with costs to appellant.

Chief Judge Wachtler and Judges Meyer, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order modified and matter remitted to Supreme Court, Albany County, with directions to remand to the Tax Commission for further proceedings in accordance with the opinion herein and, as so modified, affirmed, with costs to appellant.

      . James Michaelsen’s wife, Vilia Michaelsen, is a named party to this special proceeding because a joint tax return was filed. However, James A. Michaelsen is the Avon employee who received the options and he will be referred to as "petitioner”.

      . Where, as here, the employee disposes of the stock within three years after the option is exercised, the gain on the option must for Federal purposes be reported as ordinary income (see, Treas Reg [26 CFR] § 1.422-1 [b] [3], examples [1], [2], for an illustration of the Federal tax consequences to petitioner in this case). If an employee who exercises an option to purchase stock pursuant to a qualified stock option plan holds the stock three years before disposing of it, then for Federal tax purposes the taxpayer is accorded capital gain treatment on all income — both that derived from the exercise of the option and from the sale of the stock (Internal Revenue Code § 421). This does not mean, however, that the employee did not realize compensation when he exercised the option, but only that this compensation may be recognized as capital gain.


author: Kaye, J.

text:
    In the Matter of the Estate of Murray Kronen, Also Known as Morris Kronen, Deceased. Albert Kronen, Appellant; Marlane Schreibman, Respondent.
    Decided July 8, 1986

      APPEARANCES OF COUNSEL

      Mitchell J. Devack and Diane Memmoli for appellant.

      Joseph P. Freireich for respondent.
   OPINION OF THE COURT

Kaye, J.

Where the testator’s wife predeceases him, where his will is silent as to his desires in this event, and where there is no residuary clause, the residuary estate must be distributed in intestacy.

Decedent, Murray Kronen, died in 1980. He was survived by his son (petitioner, Albert Kronen), his daughter (Pearl Smith), and his granddaughter (respondent, Marlane Schreibman), who was the daughter of the decedent’s predeceased daughter (Ruth Schreibman). Decedent’s wife also predeceased him. Decedent’s will, dated November 15, 1978 included the following relevant provisions:

"second: I give * * * to my * * * wife * * * all of my earthly belongings * * *

"third: I give * * * to my daughter, pearl smith, and to my son, albert kronen, each the sum of one dollar ($1.00). I make no other provision for them for reasons best known to me.

"fourth: In the event that my wife, thelma kronen, and I should die in a common accident, then, in that event, I give * * * all of my estate to my children, pearl smith and albert kronen, to be shared equally between them.”

There was no provision covering the situation in which decedent’s wife predeceased him. Petitioner, seeking to inherit under paragraph fourth of the will (he would take Vi of the net estate) rather than through intestacy (he would take Vs of the net estate), brought this construction proceeding and argued that paragraph fourth had been misdrafted and should read (bracketed material proposed by petitioner): "In the event that my wife, Thelma Kronen, and I should die in a common accident [or if my wife should predecease me], then I give all my estate to my children, Pearl Smith and Albert Kronen.”

Surrogate’s Court, Queens County, declared that decedent’s will was devoid of a residuary clause or a clause disposing of the assets should his wife predecease him, and determined that the residuary estate should be distributed in intestacy in accordance with EPTL 4-1.1. The Appellate Division unanimously affirmed, stating that petitioner’s "construction cannot be accepted since the court should not rewrite a will or supply an omission not necessarily implied from the language used even though intestacy results (Matter of Imperato, 18 NY2d 825). Nor can we find a gift by implication since the will contained an expression of a desire to limit the children’s participation in the estate (see, Matter of D’Allesandro, 55 Misc 2d 909).” After the Appellate Division denied petitioner’s motion for leave to appeal, we granted leave.

The courts below correctly concluded that Matter of Imperato (44 Misc 2d 639, revd 24 AD2d 598, revd for reasons stated by Surrogate’s Court 18 NY2d 825) controls. As in Imperato, the contingency of simultaneous death did not occur, and a court would have to rewrite decedent’s will to hold that his estate should pass to his two surviving children under paragraph fourth, rather than to decedent’s three distributees by intestacy. The courts below also correctly declined to apply the doctrine of gift by implication, which is available only in the "rare and exceptional case” where "common sense and justice require that the courts correct situations resulting from obvious error or omission in wills” (Matter of Englis, 2 NY2d 395, 402). In Imperato we refused to apply the doctrine because " 'To uphold a legacy by implication the inference from the will of the intention must be such as to leave no hesitation in the mind of the court and to permit of no other reasonable inference’ ” (44 Misc 2d, at p 642, quoting Bradhurst v Field, 135 NY 564, 568). Here, as in Imperato, the language of the will does not compel the conclusion that decedent intended petitioner to take under the will in these circumstances.

Similarly distinguishable is Matter of Bellows (103 AD2d 594, affd 65 NY2d 906). In her will, decedent had established a trust, with the income payable to her husband and children and, upon each child’s death, a portion of the principal payable to that child’s children. Although decedent had failed to anticipate that the last of her three children would die childless, invoking the doctrine of gift by implication we held that the trust principal at issue should be distributed to the children of the other two deceased income beneficiaries (decedent’s grandchildren) rather than to the husband’s relatives through intestacy. The provisions of the will, an elaborate document establishing three trusts and covering numerous contingencies, expressed a "clear intent * * * to dispose of [the] entire estate and not to have any portion fall into intestacy, and * * * to benefit [decedent’s] direct blood descendants only” (103 AD2d, at p 600). Language in the will established that decedent did not wish to leave her husband, whose relatives would take through intestacy, anything other than limited trust income during his lifetime. No similar expression is contained in the will before us.

Matter of D’Allesandro (55 Misc 2d 909, supra) and Margulis v Teichman (125 Misc 2d 729, rearg denied 127 Misc 2d 168), relied on by petitioner, conflict with Imperato and should not be followed. As in Imperato, in both cases individuals were to inherit under a joint will in the event of simultaneous death of joint testators, simultaneous death did not occur, and the wills did not provide for one joint testator surviving the other. The wills lacked statements that no provision was made for the individuals who would benefit from intestacy (see, Matter of Kajkowski, 13 AD2d 994, and Matter of Reichstein, 78 Misc 2d 787). Both courts concluded that, whereas in Imperato the individuals who would benefit from a gift by implication were named as executors only in the event that the joint testators died in a common disaster, in D’Allesandro and Margulis the individuals who would benefit from the doctrine were named as executors without limitation. That a person is appointed executor, however, does not mean that that person is to take under the will in the event of a contingency for which the will does not provide. Moreover, Imperato rejected the assumption articulated in Margulis, that a testator who accounted for a relatively unlikely event (such as simultaneous death) must have inadvertently omitted disposition of property under more likely contingencies.

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

Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs.


text:
    Ralph Macchia, Appellant, v Salvatore Russo, Respondent, et al., Defendant.
    Decided July 10, 1986

      APPEARANCES OF COUNSEL

      Jeffrey J. Ellis for appellant.

      Michael Conforti for respondent.
   OPINION OF THE COURT

Per Curiam.

Delivery of a summons to defendant’s son outside his house, after which the son goes into the house and gives the summons to his father, is not valid service on defendant pursuant to CPLR 308 (1).

Plaintiff instituted this action for damages arising out of injuries incurred on February 27, 1975 while he was a passenger in defendant’s car. Nearly three years later, on February 15, 1978, a process server — accompanied by plaintiff — went to the home of defendant, Salvatore Russo, to serve him with a summons. Upon arrival, the process server approached John Russo (Salvatore’s son), who was outside the house washing a car. The process server said either "Mr. Russo?” or "Sal Russo?”, and handed John the summons. John Russo walked to the car in which plaintiff was seated, inquired of plaintiff’s health, and asked what the papers were. The process server told him to read them and drove off with plaintiff. John then went into the house and handed the papers to his father.

Upon defendant’s motion for summary judgment dismissing the complaint for inadequate service, Special Term ruled that service on defendant had been effected, relying on Pitagno v Staiber (53 Misc 2d 858). The Appellate Division reversed and dismissed the complaint on the ground that delivery of a summons to the wrong person does not confer jurisdiction over defendant, even though the summons shortly thereafter comes into the possession of the party to be served, citing McDonald v Ames Supply Co. (22 NY2d 111). We granted leave to appeal and now affirm.

None of the three grounds tendered by plaintiff in support of service has merit.

First, plaintiff urges that delivery to defendant was sufficiently close in time and space to the initial delivery to his son to constitute valid service under CPLR 308 (1). The Legislature in CPLR 308 has provided a plaintiff with a range of methods for effecting personal service upon a natural person (see, Feinstein v Bergner, 48 NY2d 234, 239-240). Where plaintiff chooses to make service by personal delivery to defendant the statutory requirements could not be plainer: service must be made "by delivering the summons within the state to the person to be served” (CPLR 308 [1]). While the Appellate Division has in certain circumstances sustained service where delivery initially was made to the wrong person (see, Daniels v Eastman, 87 AD2d 882; Conroy v International Term. Operating Co., 87 AD2d 858; Green v Morningside Hgts. Hous. Corp., 13 Misc 2d 124, affd 7 AD2d 708), in Espy v Giorlando (56 NY2d 640), this court refused to recognize delivery of process to another person as constituting personal delivery to defendant. As we stated: "We see no reason to extend the clear and unambiguous meaning of CPLR 308 (subd 1).” (Id., at p 642.) Thus, plaintiff’s first contention must fail.

Second, citing McDonald v Ames Supply Co. (22 NY2d 111, 115, supra), plaintiff argues that service should be validated because "the process server has acted reasonably”. McDonald was decided before the enactment of CPLR 308 (2), which permits service to be made upon an individual by leaving a copy of the summons with a person other than the named defendant. Given this alternative, "any consideration of whether due diligence was or was not used in an effort to make delivery to [defendant] in person is irrelevant.” (duPont, Glore Forgan & Co. v Chen, 41 NY2d 794, 797.) Whether a narrow exception to the requirements of CPLR 308 (1) may be made in situations where a process server acts reasonably in the face of misrepresentations regarding the identity or authority of the person served is a question we do not reach, particularly in view of plaintiffs presence at the time the summons was delivered to defendant’s son (see, Bossuk v Steinberg, 58 NY2d 916; and Bradley v Musacchio, 94 AD2d 783).

Finally, plaintiffs contention that defendant has not been prejudiced, and therefore service should be upheld, must also be rejected. In a challenge to service of process, the fact that a defendant has received prompt notice of the action is of no moment (see, e.g., De Zego v Donald F. Bruhn, M. D., P. C., 67 NY2d 875). Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court (see, Feinstein v Bergner, 48 NY2d 234, 241; McDonald v Ames Supply Co., 22 NY2d 111, 115, supra).

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

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs.

         John testified that he was asked "Mr. Russo?”, and answered "Yes”, at which point he was handed a paper. The process server testified he said "Sal Russo?” and John made no answer. The courts below made no finding on this issue.


text:
    In the Matter of Ashford Leon, Appellant, v James B. Meehan, as Chief of the New York City Transit Police Department, et al., Respondents.
    Decided January 14, 1986

      APPEARANCES OF COUNSEL

      John M. Leventhal for appellant.

      Albert C. Cosenza, Carla Lowenheim and Kenneth Howard Schiffrin for James B. Meehan, as Chief of the New York City-Transit Police Department, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (112 AD2d 935). We add that neither petitioner’s bare denial of the violent acts with which he was charged nor the other averments contained in his papers were sufficient to entitle him to a trial in the article 78 proceeding on the issue of bad faith.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone. Taking no part: Judge Hancock, Jr.


text:
    In the Matter of Pedro Perez, Respondent, v John B. Wilmot, as Superintendent of Elmira Correctional Facility, et al., Appellants.
    Decided January 14, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Harvey M. Berman and Roy P. Moscowitz of counsel), for appellants.

      Alice O. Mann, Robert Selcov and David C. Leven for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed. A written misbehavior report by itself can constitute substantial evidence of an inmate’s misconduct (People ex rel. Vega v Smith, 66 NY2d 130). The report in this case is sufficiently relevant and probative to support the findings of the hearing officer. Petitioner’s bare assertion of the defense of justification does not require the hearing officer to call the charging officer as a witness. The hearing officer has no duty to cross-examine anyone, including the reporting officer (People ex rel. Vega v Smith, supra, p 141). If petitioner wished to cross-examine the charging officer, he had the right to call the officer as a witness (see, Matter of Coleman v Coombe, 65 NY2d 777). However, petitioner did not choose to exercise this right. The only witness called by petitioner could not substantiate his justification defense. Thus, the essential issue at the hearing was credibility, and the hearing officer was entitled to credit the charging officer’s report (People ex rel. Vega v Smith, supra, p 141).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and the judgment of Supreme Court, Dutchess County, dismissing the petition reinstated in a memorandum.