author: Jones, J. Wachtler, J. (concurring).

text:
    In the Matter of Gene L. Chu, an Attorney, Respondent. Association of the Bar of the City of New York, Appellant.
    Argued August 31, 1977;
    decided October 13, 1977

      James D. Porter, Jr., Ronald Eisenman, Irving Gertel and Michael Alan Schwartz for appellant.

      Eliot Lauer, Peter Fleming, Jr., and John E. Sprizzo for respondent.
   Jones, J.

We hold that the conviction of respondent attorney under the provisions of section 1001 of title 18 of the United States Code constituted conviction of a felony requiring his mandatory disbarment under subdivision 4 of section 90 of the Judiciary Law.

An indictment was filed in the United States District Court for the Southern District of New York charging respondent in 14 counts with a number of Federal felonies in connection with the procurement of permanent residence in the United States for aliens, through arrangement of marriages with United States citizens (paid to marry for the purpose), by the making of false and fraudulent documents and their submission to the Immigration and Naturalization Service, and by the subornation of false statements and testimony by witnesses in proceedings before the Service. Four counts having been dismissed, on May 17, 1976 respondent was convicted after a jury trial on all 10 remaining counts. On July 1, 1976 he was sentenced to concurrent six-month suspended terms of imprisonment, placed on two years’ probation (conditioned on his not representing or counseling anyone in any matter pending before the Immigration and Naturalization Service during such probation), and fined $23,000.

Petitioner Bar Association thereafter contended that, in the light of the New York State crime of offering a false instrument for filing in the first degree defined in section 175.35 of the Penal Law, respondent’s conviction on 4 of the 10 counts —of violating section 1001 of title 18 of the United States Code—was cognizable as a felony conviction under subdivision 4 of section 90 of the Judiciary Law. On that predicate the Bar Association sought an order striking respondent’s name from the rolls of attorneys and counselors at law of New York. The Appellate Division, invoking what appears to have been a literal interpretation of the majority opinion of this court in Matter of Donegan (282 NY 285), concluded that the Federal crime defined in section 1001 was not a mirror’ equivalent of the New York State crime defined in section 175.35. Specifically the court noted that "the State crime requires 'intent to defraud the state or any political subdivision thereof,’ obviously not descriptive of the Federal agency upon which fraud was practiced” in this instance. The court accordingly denied the application for automatic disbarment but appointed a referee to conduct disciplinary proceedings. (Rules of the Appellate Division, First Department, § 603.12; 22 NYCRR 603.12.) We now reverse and direct respondent’s automatic disbarment.

It is true that in the development of the law as to the scope of subdivision 4 of section 90 of the Judiciary Law frequent cross reference has been made to the somewhat comparable law as to predicate felony sentencing in New York based on a foreign felony conviction. We conclude that such reliance should not be read, however, as mandating confinement to an analysis and application identical to that in predicate felony sentencing. Indeed the perspective with which the sentencing of convicted criminals is approached—the imposition of individual punishment—is quite different from that involved in professional disciplinary proceedings—the protection of the public (Matter of Levy, 37 NY2d 279, 282). For this reason, among others, we reject the contention now made by the Bar Association that our recent decision in People v Parker (41 NY2d 21) announced after the determination of the Appellate Division, requires an automatic disbarment in this case. In Parker we upheld the constitutionality of an interim statute which was in effect at the time respondent committed the acts on which his Federal conviction was based (Penal Law, § 70.06, subd 1, as in effect from Sept. 1, 1973 to Aug. 8, 1975). That statute then provided that conviction of a felony in another State would constitute a predicate felony conviction, without requiring that the criminal conduct in question also be cognizable as a felony in New York State. The issue there was one of constitutionality rather than statutory construction. Furthermore, we cannot conclude that when the pertinent version of subdivision 1 of section 70.06 of the Penal Law was enacted by chapter 277 of the Laws of 1973, or when the provision on which the Bar Association would have us rely was thereafter deleted by chapter 784 of the Laws of 1975, the Legislature had any intention at either time of effecting a tangential substantive impact on subdivision 4 of section 90 of the Judiciary Law.

We conclude that conviction of an attorney for criminal conduct judged by the Congress to be of such seriousness and so offensive to the community as to merit punishment as a felony is sufficient ground to invoke automatic disbarment. Whatever may have been the proper evaluation of a felony conviction in courts other than those of our own State in 1940 when Donegan was decided, we now perceive little or no reason for distinguishing between conviction of a Federal felony and conviction of a New York State felony as a predicate for professional discipline. Certainly is this so when, as here, there is a New York State felony of substantially the same elements. When it is the underlying conduct of the attorney which calls for disciplinary response, it makes little sense to say that although that conduct has been defined as felonious throughout the Nation under Federal law, the attorney is not to be automatically disbarred unless our State Legislature has enacted a precisely matching felony statute. To accord determinative significance to such statutory discrepancy would be to elevate insignificance.

Additionally in the present instance there is a very close, if not a precise, parallelism between the conduct proscribed by section 1001 and that proscribed by section 175.35. It does not strike us as significant for present purposes that under one statute the filing of the false statement must be with a department or agency of the United States while under the other the filing must be in an office of the State or a political subdivision thereof. Nor are we persuaded by respondent’s contention that under section 175.35, to constitute the defined offense it must be proved that the defendant acted "with intent to defraud the state or any political subdivision thereof’, while such a specific intent has not been held to be an element of the Federal crime (e.g., United States v Simon, 425 F2d 796, cert den 397 US 1006; United States v Adler, 380 F2d 917, cert den 389 US 1006; United States v Marchisio, 344 F2d 653; cf. United States v Lange, 528 F2d 1280). The core of the offense under both statutes is the willful filing in a governmental office of a false statement knowing it to be false. In the present case we hold that such matching suffices.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to the Appellate Division, First Department, for entry of an order striking respondent’s name from the rolls of attorneys and counselors at law of New York.

Wachtler, J. (concurring).

We agree with the majority that the parallels between the elements of the Federal felonies at issue in this case are so similar to their New York State analogues that automatic disbarment is an appropriate result under our Judiciary Law. But in so doing, we assume that the majority did not intend to imply that all felony convictions in Federal courts would necessarily dictate the same result.

There may well be instances where certain felony convictions in Federal courts should not be considered of sufficient gravity to automatically rebut the presumption of integrity underlying an attorney’s license to practice law in this State. For example, where a Federal court applies "community standards” (see Miller v California, 413 US 15; Roth v United States, 354 US 476), an attorney would be subject to a Federal felony conviction for conduct that would not be considered felonious in New York (cf. Smith v United States, 431 US 291). Under current Federal obscenity legislation, an individual using the mails to distribute or transmit even a single item within a wide range of "nonmailable” materials may be prosecuted in a Federal district court sitting in the district where the material was delivered (US Code, tit 18, § 1461; see, e.g., United States v Treatman, 399 F Supp 258). He may then be convicted of a Federal felony under whatever standard of vulgarity may be current in that community (see, e.g., Iowa Code, ch 725, §§ 725.1-725.10), however divergent from thresholds of offensiveness to which New Yorkers may have become accustomed (see United States v Slepicoff, 524 F2d 1244).

In such an instance, a more qualitative evaluation of the particular conduct involved in the offense would still be appropriate (see Matter of Levy, 37 NY2d 279).

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

Order reversed, without costs, and the matter remitted to the Appellate Division, First Department, for entry of an order in accordance with the opinion herein.

      . Penal Law.
      "§ 175.35 Offering a false instrument for filing in the first degree.
      "A person is guilty of offering a false instrument for filing in the first degree when, knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision thereof, he offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant.
      "Offering a false instrument for filing in the first degree is a class E felony.”

      . Title 18 of the United States Code:
      "§ 1001. Statements or entries generally.
      "Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the saíne to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

      . New York Judiciary Law.
      "§ 90. Admission to and removal from practice by appellate division; character committees. * * *
      "4. Any person being an attorney and counsellor-at-law, who shall be convicted of a felony, shall, upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such.
      "Whenever any attorney and counsellor-at-law shall be convicted of a felony, there may be presented to the appellate division of the supreme court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be struck from the roll of attorneys.”

      . A felony is defined as "an offense for which a sentence to a term of imprisonment in excess of one year may be imposed” (Penal Law, § 10.00, subd 5; cf. US Code, tit 18, § 1, subd [1]). Section 1001 of title 18 authorizes imprisonment for not more than five years (see n 2, supra).

      . We note that as in Donegan, in the case now before us, the Federal conviction was in a Federal court sitting in New York for conduct committed in New York, although in Donegan the criminal conduct on which the Federal felony conviction was predicated would apparently have supported only a State misdemeanor conviction.

      . We do not now address the effect to be accorded felony convictions in the courts of a sister State or of a foreign country.


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    Columbia Ribbon & Carbon Manufacturing Co., Inc., Appellant, v A-1-A Corporation et al., Respondents.
    Aruged September 6, 1977;
    decided October 18, 1977

      Arthur M. Lieberman and James M. Rhodes, Jr., for appellant.

      A. Bernard Frechtman and Joel A. Klarreich for William E. Trecker, respondent.
   Fuchsberg, J.

We are here required to determine whether a covenant made by a salesman not to compete with his employer after the termination of employment is enforceable in whole or in part.

Defendant William E. Trecker was employed in what was essentially a sales capacity for several years by plaintiff Columbia Ribbon and Carbon Manufacturing Co., Inc., a manufacturer and supplier of consumable supplies, such as carbon paper and inked ribbons, to the word and data processing industry. He signed an employment agreement containing the following restrictive covenant:

"1. Employee will not during his employment or after the end thereof, irrespective of the time, manner or cause of the termination of said employment, directly or indirectly, disclose to any person, firm or corporation, the name, address or requirements of any customer or prospective customer of the Company and * * * he will not divulge any other information that he has or shall have acquired during his period of employment, insofar as the same is or may be necessary to protect the Company’s business.
* * *
"3. The Employee further expressly covenants that he will not, for a period of twenty-four months after the termination of his employment with the Company, directly or indirectly, for himself, or as agent or employee of, or on behalf of, or in conjunction with any person, firm or corporation, sell or deliver any goods, wares and merchandise of the kind or character sold by the Company at any time during the term of his employment with the Company, or in any other manner, engage in the sale and delivery thereof within any territory to which the Employee was assigned during the last twenty-four months prior to termination.” (So far as appears from the record, the "territory” is at least nationwide.)

Following Trecker’s demotion from sales manager to salesman, he terminated his employment with Columbia and obtained a position with defendant A-l-A Corporation, a competitor. Columbia thereupon sought to enforce the restrictive covenant by enjoining Trecker from competing with it "in the United States for a period of two years” and also to restrain him permanently from soliciting or selling to customers that he had serviced while in its employ.

On cross motions for summary judgment, Special Term dismissed Columbia’s complaint. The Appellate Division affirmed, by a divided court, and, for the reasons that follow, we now, in turn, affirm its order.

Since there are "powerful considerations of public policy which militate against sanctioning the loss of a man’s livelihood” (Purchasing Assoc. v Weitz, 13 NY2d 267, 272), restrictive covenants which tend to prevent an employee from pursuing a similar vocation after termination of employment are disfavored by the law (see Clark Paper & Mfg. Co. v Stenacher, 236 NY 312; Mandel, Preparation of Commercial Agreements [1973 ed], p 148). Such covenants will be enforced only if reasonably limited temporally and geographically (Gelder Med. Group v Webber, 41 NY2d 680, 683; Reed, Roberts Assoc. v Strauman, 40 NY2d 303, 307-308), and then only to the extent necessary to protect the employer from unfair competition which stems from the employee’s use or disclosure of trade secrets or confidential customer lists (Reed, Roberts Assoc. v Strauman, supra, p 308). Thus, where the employer’s past or prospective customers’ names are readily ascertainable from sources outside its business, trade secret protection will not attach and their solicitation by the employee will not be enjoined (Leo Silfen, Inc. v Cream, 29 NY2d 387, 392).

On the other hand, if the employee’s services are truly "’special, unique or extraordinary’” and not merely of "high value to his employer”, injunctive relief may be available though trade secrets are not involved (Purchasing Assoc. v Weitz, supra, pp 272, 274).

With these criteria in mind, we turn first to the provisions of the restrictive covenant before us. It is clear that its broad-sweeping language is unrestrained by any limitations keyed to uniqueness, trade secrets, confidentiality or even competitive unfairness. It does no more than baldly restrain competition. This it may not do. Consequently, as plaintiff itself now recognizes, on its face the covenant is too broad to be enforced as written. (See Paramount Pad Co. v Baumrind, 4 NY2d 393; Janitor Serv. Mgt. Co. v Provo, 34 AD2d 1098; but cf. Bates Chevrolet Corp. v Haven Chevrolet, 13 AD2d 27, 16 AD2d 917, affd 13 NY2d 644.)

Nonetheless, plaintiff now asks us "to 'sever’ the impermissible from the valid and uphold the covenant to the extent that it is reasonable” (Karpinski v Ingrasci, 28 NY2d 45, 51). We perceive no basis on which to grant equitable relief.

The papers submitted by Columbia in opposition to the Trecker motion for summary judgment do not add enough to justify a severance. For all practical purposes, they consist only of the verified complaint and an unsupported affidavit by counsel. The affidavit furnishes Columbia no succor in resisting the motion for summary judgment (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 342; Israelson v Rubin, 20 AD2d 668, affd 14 NY2d 887). The complaint, verified by an officer of the corporation with knowledge of the facts and thus the functional equivalent of an affidavit (CPLR 105, subd [s]), is here no more effective for that purpose (Indig v Finkelstein, 23 NY2d 728). It makes no showing that any secret information was disclosed, that Trecker performed any but commonplace services during his Columbia employment, or, for that matter, that there is any evidence of lost business, lost customers or other damage. Its only thrust in this direction is to allege, generally and without as much as a hint of time, date, place or actual orders, that Trecker solicited two of its customers. Nor is Trecker’s affidavit that no secrets had been involved in his Columbia employment, that he had taken possession of no customers’ lists or files and that all the customers were publicly known to be users of such products effectively controverted by Columbia’s purely conclusory assertions.

It follows that Columbia’s showing was insufficient to defeat summary judgment (see Woodmere Academy v Steinberg, 41 NY2d 746, 752), let alone justify an attempt at judicial rewriting of the restrictive covenant, and, accordingly, the order must be affirmed.

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

Order affirmed, with costs.

       The employment with A-l-A no longer continues, having come to an end during the course of this litigation.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Gregory Coleman, Appellant. The People of the State of New York, Respondent, v David Harvey, Appellant.
    Argued August 29, 1977;
    decided October 13, 1977

      Mary McGowan Davis and William E. Hellerstein for Gregory Coleman, appellant.

      Lewis R. Friedman and Herman Kaufman for David Harvey, appellant.

      Mario Merola, District Attorney (Joyce Marie Andren of counsel), for respondent.
   Wachtler, J.

The defendants were convicted, at a jury trial, of robbery in the second degree (Penal Law, § 160.10) and sodomy in the first degree, by "forcible compulsion” (Penal Law, § 130.50, subd 1). The incident occurred at a Bron?c housing complex in March of 1973. At that time both of the defendants were 18 years old. On this appeal they claim that (1) the evidence was legally insufficient (2) the court should have suppressed certain statements made by the defendants to the police, in the absence of counsel, but after an attorney had appeared and (3) their joint representation by one attorney deprived them of effective assistance of counsel because there was a conflict of interest.

The complainant stated that in 1973 she resided in a housing complex in The Bronx. She had lived there for several years with her husband and three children. During this period she had frequently seen the defendants in the lobby and hallways, but she had never spoken to them prior to March 3, 1973. On that date, at about 5:30 in the afternoon, she and her four-year-old son went to a nearby building to use the laundry room. When she returned, an hour or two later, she pushed her shopping cart into the elevator and waited to be taken to her sixth-floor apartment. Just as the doors were closing the defendant Harvey "jerked” them open and he and Coleman entered the elevator.

At the sixth floor the elevator stopped and the doors opened. But when she started to leave, Coleman stood between her and the doors and told her she was not getting off. While she and Coleman argued over this, Harvey reached over, took her son and placed him on his shoulders. The boy began to cry. One of the defendants then pressed the button for the tenth floor and the elevator proceeded up.

When they reached the tenth floor Coleman once again stood in front of the open door and told the complainant she was not getting off. He then jammed her shopping cart into the open door and told her to take off all her clothes. When she protested the defendant shouted at her and Harvey reached up and unscrewed the light bulb. Her son then began to scream in the darkness. Harvey shouted at the boy to "shut up”, but he would not, and Harvey reached up and put the light bulb on again. Finally, after the defendants "hollered” at her several times complainant began removing her clothes because, as she stated at the trial, "I was scared for my life and I was scared for my son.” As she removed her coat $5 fell onto the floor. Harvey told her to hand it over, which she did. Coleman then told her to "pull” her clothes off faster. He grabbed her blouse and her pants and ripped them.

When complainant had all her clothes off, Harvey "zipped” his pants down and told her, in effect, to perform fellatio. She protested saying she had never done this before, but the defendant responded "you are going to do it now.” With her son still on Harvey’s shoulders she complied with his demand. As she stated at the trial, "After I was up there I had nobody else to help me fight. I did it because I was scared and I suffered for my life * * * I was scared for myself and I was scared for my son.” There were three acts of sodomy in all: two with Harvey and one with Coleman. Finally complainant was able to work her way between the defendants and the door. She kicked the shopping cart out of the way and ran down the hall calling for help. The defendants left the elevator and retreated down the staircase. With the help of a neighbor, she soon recovered her son and her clothing from the elevator.

The complainant’s son, who was six at the time of trial, gave unsworn testimony which generally corroborated his mother’s statements except that he was unable to identify the defendants. The arresting officer testified that when he asked the defendants why they became involved with complainant, they stated without elaboration that "she is always trying to make out with us and we just laugh at her and we got out at the 10th floor.” According to the officer, Coleman spoke first and Harvey just said "yes, yes” to Coleman’s statement.

On appeal Harvey claims that this evidence was legally insufficient to establish that the sodomy was committed by forcible compulsion (Penal Law, § 130.50, subd 1). The Penal Law (§ 130.00, subd 8) states that forcible compulsion "means physical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another”. The People concede that complainant was not overcome by physical force and she herself admitted that there were no express threats of physical harm, serious or otherwise, to herself or her child. The question then is whether there is sufficient evidence to support a finding of an implied threat which placed her in fear of immediate death or serious physical injury.

Harvey apparently recognizes that his alleged conduct and Coleman’s was not entirely free of menace. He urges however that there is no basis for concluding that the threat inherent in their actions involved immediate death or serious injury as opposed to minor injury or pain. The point, of course, is not what the defendants would have done, but rather what the victim, observing their conduct, feared they would or might do if she did not comply with their demands. As noted complainant testified that she feared for her life and the life of her son. She stated that at the time she capitulated she was virtually imprisoned and isolated in the elevator; the defendants had sezied her son, taken the little money she possessed and had deprived her of all her clothing. Under the circumstances the jury could find that when the defendants proceeded from outrage to outrage, and finally shouted at her to perform the sexual acts, she genuinely feared that if she did not comply, she or her son or both of them might be seriously injured or killed. In short, on this record, the jury could find that complainant was telling the truth when she stated "I did it because I was scared and I suffered for my life * * * I was scared for myself and I was scared for my son.”

On a related point both of the defendants argue that the testimony of complainant’s six-year-old son is insufficient to corroborate her testimony. Under the statute then in effect (Penal Law, § 130.15, repealed by L 1974, ch 14, § 1) the victim’s testimony had to be corroborated by "other evidence tending to: * * * Establish” both the attempt to commit the deviate sexual acts and the element of forcible compulsion. The son’s testimony which supported the mother’s statements on these points, was not under oath, and thus it too had to be corroborated pursuant to CPL 60.20 (subd 3). That statute provides that a "defendant may not be convicted of an offense solely upon the unsworn evidence of a child less than twelve years old, given pursuant to subdivision two.”

The defendants urge that the testimony of two witnesses, each of whom has to be corroborated, cannot be used to corroborate each other. This they urge is similar to one accomplice seeking to corroborate another, which we have held to be insufficient to satisfy the accomplice rule (see, e.g., People v Mullens, 292 NY 408, 414; People v O’Farrell, 175 NY 323, 327-328). But cross-corroboration is permitted when, as here the "witnesses were required to be corroborated under different statutes and for different reasons” (People v Jelke, 1 NY2d 321, 333).

The defendants also claim that the statements they gave to the arresting officer should have been suppressed because they were obtained in violation of their right to counsel.

There was a pretrial suppression hearing. The arresting officer testified that on the day after the crime the defendants were brought to the station house by their parents but at police request. He then informed them they were under arrest and advised them of their rights. He initially testified that when he informed the defendants of their right to assigned counsel, "they said they have an attorney.” On cross-examination he added that he believed it was Coleman who had informed him that they already had counsel. However he later testified that he received a phone call from the lawyer and had not been informed by Coleman that they were represented by counsel. In fact, he denied that he had previously testified to the contrary. His last statement on this point was that a lawyer had called, although he could not recall "what lawyer”, and they had a conversation in which the lawyer reportedly said that he was "a lawyer for one of the defendants.” Despite this the officer, who had waited over 45 minutes for the complainant to arrive, immediately questioned both defendants and obtained the joint statement which was later used at the trial.

Harvey also testified at the hearing. He stated that he had been advised of his rights but that he had been represented by counsel—who was also counsel for Coleman—from the time of arrest.

The People now concede that Coleman was represented by counsel at the time he was questioned. However, relying on the arresting officer’s testimony, they urge that there is no basis for concluding that Harvey was similarly represented. The officer’s testimony of course is hopelessly inconsistent. It is not even clear that he ever knew whether the attorney represented both or only one of the defendants, and if so which one. If he was this confused at the time of questioning he should not have questioned either defendant (cf. People v Ramos, 40 NY2d 610, 618, 619).

In any event the record shows that the hearing court expressly rejected the officer’s ambivalent testimony and generally credited Harvey’s testimony. The motion was denied because the court held that the defendants had been advised of their rights and voluntarily chose to make the statement. The court felt that the voluntary nature of the statement was buttressed by the fact that "it was on face value wholly exculpatory, not incriminating in any capacity”.

The motion should have been granted. We have long held, and recently reaffirmed that "Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer (People v Arthur, 22 NY2d 324, 329)” (People v Hobson, 39 NY2d 479, 481).

The statements, although obviously not a full confession of guilt, were not entirely exculpatory (see, e.g., People v Ross, 21 NY2d 258; see, also, People v Shivers, 21 NY2d 118, 122). They contained a damaging admission which was later used to place the defendants at the scene of the crime and to establish identity.

The prejudice to Coleman is obvious. By his plea of not guilty he had denied everything and elected to put the People to their proof. His own pretrial statement, placing him at the scene, virtually took the issue of identification out of the case. Harvey on the other hand took the stand and elaborated on his statement at the trial, although he continued to deny the commission of the crime. His testimony however was not completely consistent with his prior statement, which was noted by the prosecutor at the trial (cf. People v Miles, 23 NY2d 527, 542-544). If the proof of identity had been firmly established by other evidence, the error in admitting the statement might be said to be harmless (cf. People v Sugden, 35 NY2d 453; People v Miles, supra; but see People v Ramos, 40 NY2d 610, 618-619, supra). But here the only other proof submitted by the prosecutor to establish identity was the victim’s testimony, and it cannot be said that the denial of the motion did not affect the defendant’s decision to take the stand to explain the inadmissible pretrial statement. Under all the circumstances we believe that both defendants should be granted a new trial.

In view of this disposition it is not necessary to discuss at length the defendants third point—concerning their claimed denial of the effective assistance of counsel because of the joint representation. It is sufficient to say that if, upon the new trial, the defendants are again jointly represented by one attorney, the court should "ascertain, on the record, whether each defendant has an awareness of the potential risks involved in that course and has knowingly chosen it” (People v Gomberg, 38 NY2d 307, 313-314). We would note however that the record of the last trial does suggest that the defenses were in ponflict and that, on a few occasions, counsel failed to press an obvious point which would seem to benefit one defendant at the expense of the other.

The orders of the Appellate Division should be reversed and the case remitted to the trial court for a new trial.

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

In each case: Order reversed and a new trial ordered.

       Harvey’s testimony is also supported by the conceded fact that the defendants actually were jointly represented by the same attorney throughout the trial and all pretrial proceedings. In addition the prosecutor herself introduced evidence at the trial showing that the defendants were inseparable, apparently even when it came to engaging in other criminal activities. Indeed they had arrived at the station house together, with their parents, had been jointly arrested, jointly advised of their rights, jointly questioned and gave a joint statement. Under these circumstances, something more than the vague and irreconcilable beliefs of the police officer would be required to sustain a finding that the statement was voluntary because the attorney who concededly represented Coleman, did not represent Harvey at that time.


author: Jones, J. Gabrielli, J. (concurring).

text:
    In the Matter of the Arbitration between the Acting Superintendent of Schools of Liverpool Central School District, Appellant, and United Liverpool Faculty Association, Respondent.
    Argued September 7, 1977;
    decided October 18, 1977

      Edward A. O’Hara III and Dennis G. O’Hara for appellant.

      Gerard J. De Wolf, Bernard F. Ashe and Richard C. Heffern for respondent.
   Jones, J.

We hold that in arbitrations which proceed under the authority of the Taylor Law, the scope of the particular arbitration clause, and thus whether the question sought to be submitted to arbitration is within or without the ambit of that clause, is to be determined by the courts. In making such determinations the courts are to be guided by the principle that the agreement to arbitrate must be express, direct and unequivocal as to the issues or disputes to be submitted to arbitration; anything less will lead to a denial of arbitration.

In this case Liverpool Central School District and the United Liverpool Faculty Association entered into a collective bargaining agreement which provided a grievance procedure, the fourth and final step of which called for submission of an unresolved grievance to arbitration. Tracking the provisions of subdivision 4 of section 682 of the General Municipal Law, the school district and the faculty association defined a grievance as follows: "Grievance shall mean any claimed violation, misinterpretation, or inequitable application of the existing laws, rules, procedure regulations, administrative orders or work rules of the District, which relates to or involves Teachers’ health or safety, physical facilities, materials or equipment furnished to teachers or supervision of Teachers; provided, however, that such term shall not include any matter involving a Teacher’s rate of compensation, retirement benefits, disciplinary proceeding or any matter which is otherwise reviewable pursuant to law or any rule or regulation having the force and effect of law.”

In November, 1974, Mrs. Lorraine Gargiul, an elementary school teacher, was obliged to take sick leave due to illness. In February, 1975 she notified the school district that she would be able to return to her teaching duties the following month. On February 26 she was advised that pursuant to the provisions of section 913 of the Education Law she would be required to submit to a complete medical examination by the school district physician, Dr. Paul Day, before being permitted to return to the classroom. The teacher took the position that she would participate only in an examination by a female physician. Following further correspondence of similar tenor, on March 17, 1975 the board of education passed a resolution directing her to be examined by Dr. Day before returning to her teaching responsibilities, if, after reviewing her health history, he determined that such examination was necessary. On the same day, based on the teacher’s refusal to be examined by Dr. Day, she was placed on leave of absence without pay until the matter was resolved.

On April 10, 1975 the faculty association instituted grievance procedures on behalf of Mrs. Gargiul. When the issue was not resolved, the faculty association demanded arbitration in accordance with the provisions of the collective bargaining agreement. The school district promptly applied for a stay of arbitration which was granted at Special Term. The Appellate Division reversed. We now reverse the determination of that court and reinstate the disposition of Special Term.

It will be useful to place this case, and indeed all arbitration under the Taylor Law, in a broader context. Generally speaking, as the law of arbitration between private parties has developed and progressed, a difference in perspective and approach has evolved between arbitration in commercial matters and arbitration in labor relations. In the former it is the rule that the parties will not be held to have chosen arbitration as the forum for the resolution of their disputes in the absence of an express, unequivocal agreement to that effect; absent such an explicit commitment neither party may be compelled to arbitrate (Gangel v DeGroot, 41 NY2d 840, 841; Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288, 289, 292). In the field of labor relations, by contrast, the general rule is the converse. Because of the recognition that arbitration has been demonstrated to be a salutary method ° of resolving labor disputes, because of the public policy (principally expressed in the Federal cases) which favors arbitration as a means of resolving such disputes, and because of the associated available inference that the parties to a collective bargaining agreement probably intended to resolve their differences by arbitration, the courts have held that controversies arising between the parties to such an agreement fall within the scope of the arbitration clause unless the parties have employed language which clearly manifests an intent to exclude a particular subject matter (Matter of Howard & Co. v Daley, 27 NY2d 285, 289-290; Matter of Long Is. Lbr. Co. [Martin], 15 NY2d 380, 385).

Arbitration agreements that derive their vitality from the Taylor Law (Civil Service Law, art 14) are sufficiently different that they cannot properly be categorized under either of these headings. Initially we observe that our court has never held that boards of education, unless authorized by specific legislation, are free to delegate to arbitrators the resolution of issues for which the boards have official responsibility. The enactment of the Taylor Law, establishing authority for the use of voluntary arbitration, confirmed rather than vitiated the principle of the nondelegable responsibility of elected representatives in the public sector. Hence, we approach consideration of the scope of arbitration clauses in public employment from this perspective.

When challenge is raised to the submission to arbitration of a dispute between employer and employee in the public sector the threshold consideration by the courts as to whether there is a valid agreement to arbitrate (CPLR 7503, subd [a]) must proceed in sequence on two levels. Initially it must be determined whether arbitration claims with respect to the particular subject matter are authorized by the terms of the Taylor Law. The permissible scope of arbitration under that law is variously limited (Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-617; Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743, 744; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122, 130). If, of course, the subject matter of the dispute between the parties falls outside the permissible scope of the Taylor Law, there is no occasion further to consider the language or the reach of the particular arbitration clause (Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774).

If it is concluded, however, that reference to arbitration is authorized under the Taylor Law, inquiry then turns at a second level to a determination of whether such authority was in fact exercised and whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration. In the field of public employment, as distinguished from labor relations in the private sector, the public policy favoring arbitration—of recent origin—does not yet carry the same historical or general acceptance, nor, as evidenced in part by some of the litigation in our court, has there so far been a similar demonstration of the efficacy of arbitration as a means for resolving controversies in governmental employment. Accordingly, it cannot be inferred as a practical matter that the parties to collective bargaining agreements in the public sector always intend to adopt the broadest permissible arbitration clauses. Indeed, inasmuch as the responsibilities of the elected representatives of the tax-paying public are overarching and fundamentally nondelegable, it must be taken, in the absence of clear, unequivocal agreement to the contrary, that the board of education did not intend to refer differences which might arise to the arbitration forum. Such reference is not to be based on implication.

We turn then to the appeal now before us to make the necessary judicial determinations both with respect to Taylor Law authorization and as to the scope of this arbitration clause, i.e., whether Mrs. Gargiul’s present complaint falls within the contract definition of grievance. We have no difficulty at the first level in concluding that there is nothing in statute, decisional law or public policy which would preclude the board of education, acting in behalf of the district, and the association, should they agree to do so, from referring disputes of the present nature to arbitration.

At the second level, we address the particular language employed by the parties for the articulation of their agreement to arbitrate. Surely their definition of grievances does not approach the breadth of provisions which in other contexts are referred to as "broad arbitration clauses”. This clause is explicitly a limited one. Indeed in form it expresses two separate agreements. First, the parties agree that certain disputes ("claimed violation, misinterpretation or inequitable application of existing laws, rules, procedure, regulations, administrative orders or work rules of the District which relate to or involve Teachers’ health or safety, physical facilities, materials or equipment furnished to teachers or supervision of Teachers”) shall be submitted to arbitration. In the same paragraph they then agree that other disputes shall not be referred to arbitration ("any matter involving a Teacher’s rate of compensation, retirement benefits, disciplinary proceeding”). Thus, the question is not to determine the outer boundaries of a single definition; the problem is rather to determine into which of two different classifications the present dispute falls, or more precisely in this instance, how it shall be treated when it may reasonably be included within both groups.

As is evident from the arguments pressed by the parties, as well as from the decisions in the courts below, the present controversy could be classified both in surface description and substantive context in either category. On the one hand, although contending principally that the issue of arbitrability is for the arbitrator and not for the courts, the faculty association has labeled the board’s action a claimed violation or inequitable application of existing laws and rules relating to the teacher’s health, thus in the included category. On the other hand, the school district classifies the dispute as a matter involving disciplinary proceedings, in the excluded category. The labels attached by the parties, each evidently for its own advantage, can never be determinative. A very reasonable assertion can be made that this particular controversy falls within both the included and the excluded categories.

In this circumstance, we cannot conclude that the present dispute falls clearly and unequivocally within the class of claims agreed to be referred to arbitration. Accordingly, the application of the school district for a stay of arbitration was properly granted.

For the reasons stated, the order of the Appellate Division should be reversed, without costs, and the order of Supreme Court, Onondaga County, reinstated.

Gabrielli, J. (concurring).

I concur in the opinion authored by Judge Jones and am in entire agreement with his analysis that it is for the court to determine whether a particular dispute is arbitrable with respect to a Taylor Law arbitration and, further, that in such an arbitration proceeding, a court should not be bound by any presumption of arbitrability. It should be emphasized that in fulfilling this particular function, a court must carefully limit its inquiry to the threshold question of arbitrability, and must not determine the merits.

I do not think that we need reach the question of arbitrability in the present case, however, for there exists an even more compelling reason for denying arbitration. Shortly after arbitration was sought, the teacher, Mrs. Gargiul, appealed to the Commissioner of Education from the board’s action. This appeal, instituted under section 310 of the Education Law, was founded on her contention that the board’s actions violated the State Education Law and Executive Law, as well as the Federal Constitution. The commissioner dismissed the appeal, finding that the board’s actions were justified. By electing to pursue her section 310 remedy under the circumstances of this case, the teacher must be found to have waived her right to seek arbitration of the same issues.

In reaching this conclusion, I am aware that in Matter of City School Dist. of Poughkeepsie (Poughkeepsie Public School Teacher’s Assn.) (35 NY2d 599), this court found that a teacher’s section 310 appeal to the commissioner, under the facts of that case did not bar arbitration. The two cases, however, are clearly distinguishable. The dispute in Poughkeepsie arose from the school district’s refusal to approve a teacher’s application for transfer to another position. In her section 310 appeal, the teacher argued that the district had violated section 2510 of the Education Law, dealing with the rights of a person whose position is abolished to be appointed to a similar position should one subsequently become available. At the same time arbitration was sought, and it was held that in the section 310 appeal there was no waiver of the right to arbitrate. In reaching this conclusion, it was stated that although the procedures were in some ways in the pleading sense duplicitous, there was actually no possibility of inconsistent results since the 310 appeal was based solely on the statute, whereas the arbitration involved the extensive provisions in the collective bargaining agreement concerning the promotional policy of the school system. In the present case, however, there is a clear possibility of inconsistent results. The Poughkeepsie arbitration was founded on provisions in the contract clearly dealing with the questidn there under consideration. Those contractual provisions gave the teachers considerable rights not specifically granted them by law, rights not the subject of the commissioner’s decision. Here, on the contrary, there exists no contractual provision concerning the underlying dispute. The faculty association seeks to bring this dispute to arbitration under the contractual provisions concerning salary and benefits. This connection is tenuous at best. Actually, the only question to be decided is whether the school board had the authority under the applicable statute to order the teacher to submit to a medical examination by the school physician, and this is precisely the issue already determined by the commissioner.

It should be noted, moreover, that the present arbitration agreement is much more limited than the one in Poughkeepsie. The arbitration agreement in Poughkeepsie provided only that it was not applicable to " 'any disciplinary proceedings under §§ 2508 and 2509 of the Election Law, or to any matter of compensation which may be appealable to the Commissioner’ ” (35 NY2d, at p 605). The present agreement excludes "any matter involving a Teacher’s rate of compensation, retirement benefits, disciplinary proceeding or any matter which is otherwise reviewable pursuant to law”. Under this more limited arbitration agreement, it seems apparent that a waiver is present.

Although this point appears related to the issue of arbitrability, it is not the same argument and need not be resolved in the same way. For example, had the teacher in this case instituted a grievance when she was first instructed to submit to an examination by the male physician, the dispute might well have been arbitrable, as is discussed below. Nonetheless, arbitration would still have been waived by her completion of the section 310 appeal. We are here dealing not with whether the dispute is arbitrable, but rather with the question of whether the grievant has waived whatever right to arbitrate she might have had absent the section 310 appeal. In making this latter determination, however, it does not seem improper to consider the extent of the arbitration agreement as it reflects on the likelihood of a waiver. Accordingly, it must be found that in the present case, the teacher’s actions in taking a section 310 appeal resulted in a waiver of arbitration.

Assuming, arguendo, that there had been no waiver, I would nonetheless concur. In the present case, we are faced with a narrow arbitration provision which contains a rather broad exclusionary clause. The function of the court is to determine whether the present dispute is more aptly characterized as involving a disciplinary proceeding, which is not arbitrable under the present agreement, or a matter relating to a teacher’s health, which may be arbitrable. I believe that under the facts of this case, it is clear that the dispute involves a disciplinary proceeding, and is thus not arbitrable.

The teacher’s dispute with the school system covered a period of several months, during which she was several times advised that she must be examined by the school district physician, and that her request that she instead be examined by a female physician was not acceptable to the district. During this extended period she could have sought to institute a grievance, and had she done so it might well have been construed as an arbitrable dispute over a matter of a teacher’s health. At any rate, she did nothing. Eventually, the school board adopted a resolution instructing her to submit to an examination by the district physician who, after studying her medical records, would determine whether an examination was necessary. The physician did so determine, and again she refused. Still, she did not institute a grievance; rather, she simply refused to obey a presumptively valid instruction of the school board. Finally, the school board ordered her placed on a temporary leave of absence without pay until she complied with the board resolution. It was only at this point that she entered a grievance.

Under these circumstances, it is clear that the present dispute more directly involves a disciplinary proceeding than a matter relating to a teacher’s health. The teacher was suspended because of her refusal to obey an apparently valid board order. Rather than instituting a grievance to determine her rights at a time when she could have done so effectively, she instead pursued a path of outright defiance of the board, and it was only after she was disciplined that she sought to challenge the board. In light of all this, this dispute must be considered to be one arising from a disciplinary proceeding, and is thereby not arbitrable under the agreement.

This is not to say that the board could transform any dispute into a nonarbitrable one by the simple expedient of formulating it in terms of a disciplinary proceeding. Where, however, as here, an employee simply ignores a valid instruction from the board rather than seeking to challenge it via the grievance process when the instruction is issued, and is subsequently disciplined for this insubordination, the dispute can only be characterized as one involving a disciplinary proceeding.

Accordingly, I concur in the holding that the order of the Appellate Division should be reversed and the order of Special Term reinstated.

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

Order reversed, etc.

      . In our view the not infrequent reference to a "presumption of arbitrability”, whilé understandable, does not advance analysis and indeed in some instances serves rather to obfuscate. In the field of labor relations, however, experience has demonstrated that an inference may usually be drawn that the signatories to a collective bargaining agreement between private parties intended to submit their differences to arbitration.

      . No claim is made that the present dispute falls within the very broad category of "any matter which is otherwise reviewable pursuant to law”.


author: Cooke, J.

text:
    The People of the State of New York, Respondent, v Freddie De Jesus, Appellant.
    Argued September 9, 1977;
    decided October 18, 1977

      Susan A. Tipograph for appellant. I.

      Eugene Gold, District Attorney (Jane S. Meyers of counsel), for respondent.
   Cooke, J.

"It is 'the law of the land’ that no man’s life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal” (Matter of Oliver, 333 US 257, 278). Such a right constitutes the most fundamental of all freedoms (Estes v Texas, 381 US 532, 540). The underlying issue here is whether defendant Freddie De Jesus was deprived of such a trial.

The prosecution’s proof indicated that at about 10:45 during the evening of August 30, 1972, while bakery truck driver Stephen Drowns waited in his halted vehicle for the gates of Levy’s Bakery to open, two youths approached the truck for the ostensible purpose of obtaining cake or doughnuts. When Drowns said he had no extra cake to give them and that he would ask the platform man at Levy’s if he had extra doughnuts, defendant slid through a truck door and placed a knife to the driver’s left side and held the driver back in the seat. One of the boys asked for "the monéy” and, when Drowns blew the horn, defendant told him to stop or he would put the knife through him. The other boy stood at the side of the truck near the door, held an unidentifiable object in his hand and threatened to blow Drown’s head off if he did not move fast. Drowns’ wallet and watch were seized and the two assailants ran around a corner and into one of Brooklyn’s streets. In a station house lineup Drowns identified defendant as one of the participants. This identification was confirmed on trial by testimony of a bakery security guard, who knew defendant from the vicinity, that he observed defendant on a stoop across from the bakery moments before the alleged robbery.

Defendant presented an alibi defense, offering his own testimony and that of his girl friend and sister-in-law in support of his contention that he never left his apartment on the evening in question. It was related that defendant’s brother, Richard De Jesus, was in and out of the apartment during the evening, but said brother was not called as a witness.

Defendant was convicted, after verdict, of robbery in the first degree, robbery in the second degree and grand larceny in the third degree. The Appellate Division affirmed, without opinion, two Justices dissenting. The dissent concluded that throughout the trial the Judge continually demonstrated manifest and open hostility toward defense counsel; that error was committed in allowing to stand uncorrected the prosecutor’s intimation during summation that, if acquitted, the defendant would be back on the street hurting others; and that, although not raised on appeal, the prosecutor should not have commented during summation on the failure of the defendant to produce his brother as an alibi witness, since the alleged accomplice was his brother whose case had been handled in Family Court because of his age.

I

The trial was punctuated by the trial court’s frequent caustic, if not snide and sarcastic, remarks directed at defense counsel. Taken out of context for the sake of brevity, these comments in the jury’s presence, included expressions such as:

"You’re putting words in his [the witness’] mouth, and everybody can see it, Mr. Wagner [on cross-examination]”;
"you know your questions are inaccurate [on cross-examination]”;
"Let’s not be playing any games”;
"You’re leading to beat the band”;
"And I don’t need any help from you”;
"Are you going to have a play on words now?”
"This is cross examination, and you know it. There is a lot more latitude on cross examination than direct, and this is cross examination, and you heard me rule like this many times. It doesn’t come as any surprise to you”;
"Oh, come on. Try this case [after defense counsel requested a brief conversation at the bar]”;
"It is not good enough then, Mr. Wagner and you know better. You’re not inexperienced [after defense counsel asked an alibi witness where she was the day before defendant’s arrest]”;
"Are you such a creature of bad habits, I mean, legally speaking, that you just persist?”
"I said exception. You are going to learn how to take a ruling from a Court if it’s the last thing you learn and I trust it won’t be the last. I hope you’re around longer than that. Now come on.”
"That’s two questions in one. [Mr. Wagner: Withdrawn.] And you knew you framed it this way”;
"I can’t understand you and some of your tactics”;
"Let’s have no crack out of you like that”;
"I don’t care what you’ve [defense counsel] ever seen. In all my practice of law, I’ve never seen some of the things I’ve seen in this trial. [Mr. Wagner: Both sides, admittedly?] * * * From you particularly. [Mr. Wagner: Your characterization I take exception to.] * * * You have it. You can review my conduct any time you want. They’ll review yours at the same time”;
"You’ll learn to take a ruling, or I’ll send you right over to the Appellate Division. Now, you do this in every trial. Now, you’ll take a ruling when I rule. You have your exception. Sit down. [Mr. Wagner: You never let me make argument.] You sit down, sir, and don’t you answer back. You had better learn something about conduct of a lawyer during trial, and I’m trying—and I’m tired of trying to teach you.”

The conduct of defense counsel did not warrant or justify the extent of this treatment nor the hostility which met his exceptions, offered in a gentlemanly manner, to the charge in the jury’s presence.

"The right of every person accused of crime to have a fair and impartial trial before an unbiased court and an unprejudiced jury is a fundamental principle of criminal jurisprudence” (People v McLaughlin, 150 NY 365, 375; see, also, People v Crimmins, 36 NY2d 230, 238). It is to be accomplished in surroundings in which both the accused and the prosecution enjoy the unfettered attention of the jury, to the end that the resulting verdict will be the product solely of evidence adduced on the witness stand (see Sheppard v Maxwell, 384 US 333, 350-351; Estes v Texas, 381 US 532, 540-541, supra; People v Sher, 24 NY2d 454, 457). Recognizing that juries are " 'extremely likely to be impregnated by the environing atmosphere’ ” (Turner v Louisiana, 379 US 466, 472, quoting dissent in Frank v Mangum, 237 US 309, 349 [Holmes, J.]), "[criminal trials are to be so conducted that the proof will be legal evidence, unimpaired by intemperate conduct * * * and irrelevant asides, all of which obfuscate the development of factual issues and sidetrack the jury from its basic mission of determining the facts relevant to guilt or innocence” (People v Alicea, 37 NY2d 601, 605).

Neither the nature of our adversary system in which facts are elicited and determined nor the constitutional command to afford a fair trial inhibit a Trial Judge from assuming an active role in the resolution of the truth (see People v Mendes, 3 NY2d 120, 121; People v Ohanian, 245 NY 227, 232). Indeed, as part of the responsibility of insuring a fair trial, he may seize the affirmative, when proper and necessary, to clarify perplexing issues, to develop significant factual information, to enforce propriety, orderliness, decorum and expedition in trial (People v Gonzalez, 38 NY2d 208, 210; People v Hinton, 31 NY2d 71, 76; People v Singletary, 54 AD2d 767; People v Russo, 46 AD2d 904, 905, affd 41 NY2d 1091). A correct verdict is not assured at the hands of an unbiased, though bewildered, jury.

While such an active participation is not foreclosed, care should be assiduously exercised lest the Trial Judge’s conduct, in the form of words, actions or demeanor, does not divert or itself become an irrelevant subject of the jury’s focus (see People v Carter, 40 NY2d 933; People v Budd, 38 NY2d 988; People v Robinson, 53 AD2d 898; People v Matos, 46 AD2d 903). Stationed above the clamor of counsel or the partisan pursuit of procedural or substantive advantage, the Judge functions in the critical area of regulating the proceedings so

as to guide the jury beyond distracting influences and to a reasoned determination on the facts. In this function, the Bench must be scrupulously free from and above even the appearance or taint of partiality (see People v Hommel, 41 NY2d 427, 429). Unnecessary and excessive interference in the presentation of proof, as well as the intimidation or denigration of counsel, particularly in the jury’s presence, are to be avoided. Since the presence of the Judge is likely to be equated with the majesty of the law itself, inappropriate remarks which might throw the scales out of balance should be omitted and "care must be taken to guard against 'the possibility that the stated opinion of the trial court or even the suggestion of an opinion might be seized upon by the jury and eventually prove decisive’ ” (People v Bell, 38 NY2d 116, 120).

It is not imperative here, as in most similar situations, that there be a precise demarcation of the line between proper regulation of criminal trials and improper denigration of defense counsel. It is sufficient to conclude, in this setting where there were sharp issues of credibility between the victim, security guard and police officer on the one hand, and defendant and his alibi witnesses on the other, that the demeaning of counsel, his dismissal as though unworthy of respect and attention, the casting of a pall of suspicion over his case and the interjection of extraneous considerations unfairly burdened the defendant with the obligation, not only of rebutting the proof of the People, but also of countering the implications imputed by the court. Under these circumstances, the error cannot be disregarded as harmless (see, e.g., People v Williamson, 40 NY2d 1073, 1074)..

Ii

In support of his defense of alibi, defendant testified together with two others allegedly at home with him on the night of the robbery. In this regard, the Assistant District Attorney stated in summation: "Talk about what you didn’t hear, I heard Mr. Wagner [defense counsel] say something about where are those other people in the line-up? Talk about what you didn’t hear, my God, the brother of the defendant is sitting right there in the audience, he’s identified for you by the defendant, he was supposed to be at the house, at the place where the defendant was supposed to have been on the night he’s accused of a crime. Have you heard him? Here he is. (Indicating.)” The following colloquy was then entered in the record:

"MR. WAGNER: Well, your Honor—your Honor, I object to that.
"THE COURT: That’s his recollection of the evidence.
"MR. WAGNER: Your Honor, he can’t call on the defendant to call witnesses.
"THE COURT: No, but once the witness offered a defense and took the stand himself, he made the subject an issue in the trial, and you know it.
"MR. WAGNER: But, your Honor—
"THE COURT: He opened the door.
"MR. WAGNER: Your Honor, if I may be permitted to say something?
"THE COURT: If he wanted to sit mute, he could, but once he didn’t, the whole subject is opened up. Now, you have your exception. Sit down.
"MR. WAGNER: Exception, Judge.
"THE COURT: We’ll have no summary summation from you at this time.”

It has been recently stated that, ordinarily, comment may not be made upon a defendant’s failure to testify or otherwise come forward with evidence, but, once a defendant does so, his or her failure to call an available witness who is under defendant’s control and has information material to the case may be brought to the jurors’ attention for their consideration (People v Rodriguez, 38 NY2d 95, 98). An exception to this general rule obtains where the person not called as a witness by defendant is a codefendant, an accomplice not presently on trial, or one already adjudged guilty of perpetrating the same act or offense as that for which defendant is being prosecuted (People v Slover, 232 NY 264, 269-270; 1 Wharton’s Criminal Evidence [13th ed], § 148, p 251; 2 Wigmore, Evidence [3d ed], § 287, p 168, n 1; see Presumption—Failure to Call Witness, Ann., 5 ALR2d 893, § 22, p 942 et seq; cf. People v Rodriguez, 38 NY2d 95, 100, supra; People v Sweeney, 41 Hun 332). The indictment referred to an unnamed accomplice. Although defendant’s brother Richard, referred to by the prosecutor in his summation, was not a codefendant, there was testimony that the brother was on the stoop with defendant shortly before the incident in question and it appears from the sentencing minutes that the brother was not indicted because of being underage and that he "got his comeuppance in the Family Court.”

The prosecution, citing, inter alia, People v Vidal (26 NY2d 249, 254-255), contends that defendant’s counsel, by merely stating that defendant could not be required to call witnesses, entered a general objection to the prosecutor’s remark, which was not followed by a specific objection pointing to the particular infirmity in the comment and which did not preserve the point for review. The record shows, however, that after the court turned down counsel’s general objection, when counsel started to make a statement introduced by the word "But”, counsel was interrupted and, when counsel asked if he might "be permitted to say something”, he was told to "Sit down.” Because of the court’s summary rejection of counsel’s proffered argument, it is difficult to know with certainty whether a specific objection would have been advanced. In any event, an attorney has the duty to protect the interests of his client and the right, generally, to press legitimate argument respectfully and in good faith (Matter of Hallinan, 71 Cal 2d 1179, 1183, 1184). When an attorney in summation enlarges upon facts not in evidence or presses upon the jury subjects which its members have no right to consider, the required and proper practice for opposing counsel is to interrupt the summation for the purpose of objecting to the improper statements (People v Marcelin, 23 AD2d 368, 370; 8 Carmody-Wait 2d, NY Prac, § 56:140) and the Trial Judge should respect the obligation of counsel to present such objections (American Bar Association Project on Standards for Criminal Justice, Function of the Trial Judge, § 5.7, pp 70-71). Since defense counsel was denied an opportunity for specification or enlargement of his objection, as to such a crucial point, his client was denied a fair trial in this respect as well.

Because defendant was not accorded a fair trial, the order of the Appellate Division should be reversed and a new trial ordered.

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

Order reversed, etc.

      . (See CPL 470.35, subd [1]; Persky v Bank of Amer. Nat. Assn., 261 NY 212, 218; Cohen and Karger, Powers of the New York Court of Appeals, pp 625-627.)

      . "O wise young judge, how I do honour thee” (Shakespeare, Merchant of Venice, act IV, scene 1).


author: Wachtler, J. Fuchsberg, J. (concurring). Jones, J. (dissenting).

text:
    New York Public Interest Research Group, Inc., et al., Respondents, v Hugh L. Carey, as Governor of the State of New York, Appellant.
    Argued November 1, 1977;
    decided November 2, 1977

      Louis J. Lefkowitz, Attorney-General (Jean M. Coon and Ruth Kessler Toch of counsel), for appellant.

      Dennis A. Kaufman, William J. Quirk and Leon E. Wein for
    respondents.
   Wachtler, J.

In this action a group of citizen taxpayers have asked the courts to declare chapter 455 of the Laws of 1977 unconstitutional. The chapter is not in effect and may never go into effect unless approved by the voters at the general election to be held on November 8, 1977. The action is an unusual one which raises a fundamental question concerning the proper role of the courts, that is, whether the courts should intervene in a pending election to determine whether a proposition, finally and irrevocably on the ballot, would be unconstitutional if the voters approve it.

We have concluded that under the State Constitution and applicable statutes it is neither necessary nor proper for the courts to express any view regarding the constitutionality of the proposed law on the eve of this election. Thus the determinations made by the courts below should be reversed and the complaint dismissed.

Chapter 455 of the Laws of 1977 authorizes, when effective, the creation of a State debt in the amount of $750,000,000. The State Constitution (art VII, § 11) provides, with exceptions not relevant here, that no debt shall be "contracted by or in behalf of the state, unless such debt shall be authorized by law, for some single work or purpose, to be distinctly specified therein. No such law shall take effect until it shall, at a general election, have been submitted to the people, and have received a majority of all the votes cast for and against it at such election”.

The Legislature passed chapter 455 on June 27, 1977. Section 3 of the law provides that it shall be submitted to the voters as a proposition in the following form: "Shall chapter [455] of the laws of nineteen hundred seventy-seven, known as the economic action program bond act for New York state of nineteen hundred seventy-seven, authorizing the creation of a state debt in the amount of seven hundred fifty million dollars ($750,000,000) to provide moneys for the acquisition, construction, reconstruction, establishment, improvement or rehabilitation of public capital facilities for industrial and community development, tourism and recreation, conservation and environment and local transportation access, all in furtherance of economic development, be approved?” On July 19 the law was signed by the Governor. On August 8 the State Board of Elections certified the text of the proposition as it will appear on the ballot at- the general election to be held on November 8.

More than a month after the Board of Elections certified the proposition for the ballot, the plaintiffs commenced this action claiming that the debt authorized by the law is not for a "single work or purpose” as is required by the State Constitution (art VII, § 11). The complaint seeks a judgment declaring the statute unconstitutional. In addition the plaintiffs sought (1) an injunction prohibiting the Governor from enforcing the law if approved by the voters, (2) a mandatory injunction directing the defendant May, Chairman of the State Board of Elections, to rescind the certification and remove the proposition from the ballot and (3) reimbursement for counsel fees.

The defendants moved for summary judgment dismissing the complaint. The plaintiffs cross-moved for summary judgment granting the relief requested. However on the return date of the motion the plaintiffs stipulated to discontinue the action against the Chairman of the Board of Elections and the request for a mandatory injunction removing the proposition from the ballot. Accordingly, this portion of the complaint was dismissed.

The trial court then granted plaintiffs’ motion for summary judgment for the remainder of the relief requested. The proposed law was declared unconstitutional; the Governor was enjoined from enforcing it and the plaintiffs were awarded counsel fees.

The Appellate Division modified by denying plaintiffs’ application for counsel fees, but otherwise affirmed. One Justice dissented and voted to dismiss the complaint on the ground that the case, in its present posture, called for an advisory opinion.

It is fundamental that the "function of the courts is to determine controversies between litigants * * * They do not give advisory opinions. The giving of such opinions is not the exercise of the judicial function” (Matter of State Ind. Comm., 224 NY 13, 16 [Cardozo, J.]). This is not merely a question of judicial prudence or restraint; it is a constitutional command defining the proper role of the courts under a common-law system (Matter of State Ind. Comm., supra).

In a sense, of course, any decision a court may render is always advisory since it determines the legal rights and obligations of the parties. But the courts should not perform useless or futile acts and thus should not resolve disputed legal questions unless this would have an immediate practical effect on the conduct of the parties. The need for judicial intervention is obvious when, because of the actions of one of the parties, a dispute arises as to whether there has been a breach of duty or violation of the law. Then the courts can declare the rights and obligations of the parties, and if a breach is found, compel compliance, award damages or otherwise order appropriate action to be taken.

That is the tradition'al, but not the only way in which a genuine legal dispute may arise or be resolved by the courts. For instance, when a party contemplates taking certain action a genuine dispute may arise before any breach or violation has occurred and before there is any need or right to resort to coercive measures. In such a case all that may be required to insure compliance with the law is for the courts to declare the rights and obligations of the parties so that they may act accordingly. That is the theory of the declaratory judgment action authorized by CPLR 3001 (James v Alderton Dock Yards, 256 NY 298; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3001, pp 355-357; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3001.02; Borchard, Declaratory Judgments, 9 Brooklyn L Rev, pp 1-3).

Whether a judicial determination of this nature will have this effect is generally for the court to decide in the exercise of sound discretion (CPLR 3001). There are however certain basic principles. The fact that the court may be required to determine the rights of the parties upon the happening of a future event does not mean that the declaratory judgment will be merely advisory. In the typical case where the future event is an act contemplated by one of the parties, it is assumed that the parties will act in accordance with the law and thus the court’s determination will have the immediate and practical effect of influencing their conduct (Borchard, Declaratory Judgments, pp 25-28, 75-76).

But a request for a declaratory judgment is premature if the future event is beyond the control of the parties and may never occur (Prashker v United States Guar. Co., 1 NY2d 584). Then any determination the court may make would be merely advisory since it can have no immediate effect and may never resolve anything (Borchard, Declaratory Judgments, pp 58-60). Thus it is settled that the "courts will not entertain a declaratory judgment action when any decree that the court might issue will become effective only upon the occurrence of a future event that may or may not come to pass” (3 Weinstein-Korn-Miller, op. cit., par 3001.09b). In accordance with this principle, we have held that the courts should not decide the constitutionality of a statute requiring mandatory arbitration in the event of a bargaining impasse, if there has been no impasse and no order to arbitrate (Park Ave. Clinical Hosp. v Kramer, 19 NY2d 958; Mount St. Mary’s Hosp. v Catherwood, 26 NY2d 493, 499). The same principle applies when a party challenges a statute which has not become effective. "[U]ntil the statute or ordinance is passed”, a declaratory judgment "would be premature” (Borchard, Declaratory Judgments, p 63; cf. Matter of McCabe v Voorhis, 243 NY 401, 411-412). For instance here, if the voters do not approve the proposition all the determinations which the courts have made in this case would be merely of abstract interest and moot. In addition when final approval rests with the voters, "the hazardous and inconvenient nature of such action, taken in the necessary haste of disposing of pre-election contests, makes it wise and expedient for the courts to refuse to intervene in advance of some threatened action” (Matter of McCabe v Voorhis, supra, p 412).

That is not to say that the courts may never consider the validity of proposed legislation. This has been done on several occasions, although with reluctance and then only incidentally to resolve a dispute as to whether the proposition should be placed or remain on the ballot (see, e.g., Matter of McCabe v Voorhis, supra; Matter of Tierney v Cohen, 268 NY 464; Matter of Osborn v Cohen, 272 NY 55; Matter of Mooney v Cohen, 272 NY 33; Johnson v Etkin, 279 NY 1; Matter of Stroughton v Cohen, 281 NY 343; Matter of Atwood v Cohen, 291 NY 484).

These are not advisory opinions. The effect of the court’s determination in those cases does not depend on the outcome of the election. On the contrary, those orders have the immediate and practical effect of determining whether the proposition should be submitted to the voters, or whether all the expense and human effort involved in the election process would be wasted because of fatal defects in the law.

That is not what the plaintiffs have asked the courts to do in this case. Indeed, as noted, they have specifically abandoned their original demand for a determination that the proposition be removed from the ballot and have discontinued the action against the Chairman of the Board of Elections. Thus the proposition will be submitted to the voters and the courts have simply been asked to determine whether the statute if adopted would be unconstitutional. This is the kind of advisory opinion the Judges of this State have been unable to give since the abolition of the Council of Revision in the early part of the 19th century. It is not, as Judge Cardozo noted, the proper "exercise of the judicial function” (Matter of State Ind. Comm., 224 NY 13, 16, supra) and thus at this point we express no views as to the constitutionality or unconstitutionality of the proposition. Judicial intervention or expression would be premature pending the outcome of the referendum.

Accordingly, the order of the Appellate Division insofar as appealed from should be reversed and the case remitted to Supreme Court, Albany County, to dismiss the complaint.

Fuchsberg, J. (concurring).

Besides joining in Judge Wachtler’s opinion because of the procedural limitations that he articulates, I believe it well that the attack on the proposed bond referendum not go unanswered. For, in my opinion, it is not to be assumed that it would not pass constitutional muster.

Section 11 of article VII of the State Constitution in its phrase "single work or purpose” employs verbiage which succeeded to the phrase "single work or object” in order to "remove any doubt that may exist as to the power of the state to contract a debt for a single objective that may relate to more than one physical structure or, indeed, as in the case of relief bonds, may not include a physical structure” (New York State Constitutional Convention of 1938, Proposed Amendments, vol II, No. 748, Int 665, p 19; emphasis supplied).

"Comprehensive and integrated economic” development, the stated purpose of chapter 455, appears to be well within the embrace of "purpose” as so defined. And nowhere is it suggested that the Constitution’s use of the word "single” is to be equated with concepts of simplicity, narrowness or size.

In adopting chapter 455, the Legislature noted the "alarming decline [in the] once vigorous economy of the 'Empire State’ ” to a point where the loss of 700,000 jobs had brought manufacturing employment to its lowest level since the depression of the thirties, State-wide employment had lagged behind the rest of the Nation by an aggregate of about 14% and the 21 major industrial groups within the manufacturing section had declined by more than 20% since 1970. Pointing also to a rapid deterioration of capital facilities vital to New York’s commerce and industry to a state of imminent economic disaster for the State and its localities, it concluded that a problem of this magnitude could no longer be addressed in piecemeal fashion but only by means of a single economic action program. These legislative findings are not lightly to be disregarded (People ex rel. Cotte v Gilbert, 226 NY 103, 107). Nor is the proposed remedy. It is difficult to believe that section 11 of article VII is not intended to be resilient enough to meet so pressing a societal need in an age when, for over 40 years now, the interrelationship between our economy and our government is no longer dependent on whether the thinking of a Keynes or of a Friedman holds forth in the White House or the Governor’s mansion.

A public "objective” like the one here may require multiple steps or projects for its fulfillment and these components, of course, can often readily be classified into "categories”. However, they need not take away from the singleness of a permissible objective to which they are subordinate just as the four categories listed in the proposition before us do not obscure the singleness of its purpose. Their enumeration there appears to be more statistical and informational rather than legal or economic in significance.

There is no stereotyped way to best assure the electorate an intelligent choice. If the four categories were not detailed in the particularization of how the economic development objective was to be implemented would that have satisfied those who would focus on the word "single”? Or if, instead, each of the four were submitted as a separate proposition, would it evoke challenges because each of the multiple projects of which it was made up, was not, in turn, put to a separate vote? After all, the proliferation of sets and subsets in such a situation can go on ad infinitum. What is more, the passage of some rather than all of such subproposals might as effectively frustrate a particular proposition’s objective as would its repudiation as a whole.

The concept of a public referendum is the basic safeguard in the contracting of debts which the Constitution contemplated. Insistence that it be oversimplified in form or substance does a disservice to our citizens and is not what I conceive to be within the spirit of section 11 of article VII. If the amount of a bond issue sought to be approved is a large one, the voters may reject it for that very reason. If each of its "integrated” parts is objectionable to its own opponents, there may be a totality of more informed and interested critics than if there was but one category of projects to achieve the stated "purpose”. There are those who well may oppose the incurring of debt on principle while "pay-as-you-go” is a viable alternative. In short, without further example, it is not at all to be taken for granted that propositions submitted will be adopted or rejected willy-nilly or that the true constitutional purpose will be carried out by overprotectiveness of the right to exercise the franchise.

Therefore, if we were not reversing and remitting with directions to dismiss the complaint, I would vote for a declaration of constitutionality.

Jones, J. (dissenting).

We cannot agree with the majority that the dispositions of the courts below must now be reversed and the complaint dismissed on the ground that the issue presented is premature. Section 11 of article VII of our State Constitution provides that no debt may be contracted by the State unless it has been authorized by law "for some single work or purpose, to be distinctly specified therein” and shall thereafter have been approved by the voters at a general election. Only one such proposition may be submitted at any general election. Chapter 455 of the Laws of 1977 was adopted in purported conformity with this constitutional mandate. It had two intended legal consequences: one to authorize the creation of a State debt to an amount not exceeding $750,000,-000 for the purpose of "promoting and implementing a comprehensive and integrated economic action program”, the other to direct submission of the proposition to the voters at the general election on November 8, 1977. While it might be said that the authorization aspect of the act would not be subject to judicial attention until after the results of the election had been tabulated and it was known that the voters had approved the proposal, the direction for submission to the voters was ripe for possible judicial examination at any time after the Governor’s signature on July 19, 1977.

The parties have complicated our consideration of this appeal. The failure of the New York Public Interest Research Group to have joined the New York State Board of Elections and plaintiffs’ willingness thereafter to dismiss the action as to the chairman of that board have substantially hindered the courts in fashioning a complete remedy—one which would include a direction for the removal of the proposition from the November 8 ballot. Additionally and equally unfortunately, that circumstance has served to create an impression of prematurity on which the dissenter below and now the majority rely. Had the Board of Elections been made party, effective direction could have been given for the removal of the proposition from the ballot. The present appeal would then have matched the circumstance which existed in Matter of McCabe v Voorhis (243 NY 401), and that case would have been authority for reaching and resolving the merits of the present appeal, notwithstanding that the electorate has not yet spoken. The majority opinion cites a number of other instances in which, where the Board of Elections had been made a party, the courts have ruled on the validity of propositions to be submitted to the electorate prior to the actual vote (p 531).

In our view, while the absence of the Board of Elections on this appeal makes it more difficult to grant the applicable remedy, it does not serve to make what would otherwise be a ripe controversy premature and thus beyond the reach of judicial consideration. There can be no denial of the genuineness of the dispute between the parties or of its present reality. There is a real controversy, not abstract differences of opinion or an academic disputation. (1 Anderson, Actions for Declaratory Judgments, § 9, p 51.) While absence of parties may limit the choice of implementing remedies, it should not be held to vitiate what would otherwise be a justiciable controversy appropriate for judicial determination in an action for a declaratory judgment. The circumstance that the court may not, without great difficulty, direct the performance of a mechanical change in the voting machines and on the written ballot does not oust the court of jurisdiction to resolve the substantive differences between those persons who are directly interested and are parties to the litigation. From another perspective, to say that a declaration of unconstitutionality by this court would be legally and practically useless or futile unless applied directly to the voting machines would be to ignore the vitality of our judicial writings, which we are not willing to do. In our view the absence of the Board of Elections does not oust our court of authority or relieve us of responsibility for its exercise, and no case is cited by the majority which holds that it does.

We recognize the element of uncertainty stressed by the majority which is unquestionably present in this case—the comprehensive and integrated economic action program may never be approved at the polls, a circumstance comparable to that in the cases that the majority cites. This contingency factor, relevant to the authorization aspect of the act but irrelevant to the submission aspect, might have pursuaded the lower courts to reject the present action for a declaratory judgment. Whether to entertain such an action, however, is to be determined in the exercise of, judicial discretion (CPLR 3001). We cannot say that the determination of the Supreme Court, now affirmed at the Appellate Division, to accept the present action constituted an abuse of discretion as a matter of law (Woollard v Schaffer Stores Co., 272 NY 304, 311-312).

Our judicial predicament is also made more difficult by the fact that the Attorney-General has not raised the defense of laches, by appropriate pleading of otherwise. It is only that circumstance which deters us from consideration of dismissal of the present action because of an unacceptable delay in commencing this action for a judicial declaration of the unconstitutionality of chapter 455. Advance publicity has been widespread, and neither the passage of the act by the Legislature on June 27, 1977 nor its signature by the Governor on July 19 could have come as a surprise to these plaintiffs. Then, to have postponed action until September 12, 1977 and thus to confront the courts and the Attorney-General with the necessity—in telescoped proceedings inescapably conducted under an acute consciousness of the imminence of the November 8 election—to consider and resolve an issue of such significance, is an imposition on the people of the State of New York. Nonetheless, the defense of laches was not raised, and, litigation having progressed this far, the courts have a responsibility to determine the issue regardless of the difficulties created for the lawyers in the litigation and even for the voters, who are kept in doubt and perhaps in confusion as to the status of the bond proposition. Certainly the failure of our court to address the merits can only deepen and compound the confusion.

On the merits, we would hold that chapter 455 falls short of obedience to the command of section 11 of article VII of our State Constitution, and very much for the reasons expressed by Mr. Justice Larkin at the Appellate Division. In our view, the debt contemplated by the present enactment is not "for some single work or purpose” within the constitutional contemplation. We would now go no further. It would be imprudent and unwise in the present circumstances to undertake to define or to describe the permissible outer boundaries of the single-purpose requirement. Focus on linguistics cannot be determinative in interpretation of this provision—perhaps is not even helpful; the constitutional history submitted to us is far from conclusive. The argument that a single purpose may be discerned from the natural and necessary relatedness of functional components of a program does not commend itself to our acceptance. We go no further than to say that the presently proposed debt program does not meet the constitutional requirement and to note that we decline to attempt, on the present accelerated submissions, any formulation as to the meaning of the constitutional provision.

We do observe that, unlike the propositions which authorized State indebtedness in 1932, 1933 and 1934 to which our attention is drawn by the Attorney-General, chapter 455 of the Laws of 1977 contains no allocation of the proceeds of the bond sales to different components of the comprehensive and integrated economic action program. (Cf. L 1932, chs 566, 567, § 1; L 1933, chs 260, 259, § 2; L 1934, chs 718, 717, § 2.) There is no legislative or statutory representation, to say nothing of legally enforceable assurance, as to what allotment or even economic emphasis would be apportioned to the four aspects of the program. In effect the voters are asked to approve a proposition with respect to which only the total amount is known, and which if approved would serve as a precedent for placing within executive and legislative reach largely unallocated and thus uncontrolled expenditure opportunities.

One of the great purposes of a Constitution is to restrain a majority, which will usually take care of itself. Hence, constitutional limitation is designed to protect against a transitory electoral majority as it is also designed to control transitory legislative and executive branches. The provisions of our Constitution are to be liberally interpreted, but surely not to be distorted to the point of near meaninglessness. (Cf. Flushing Nat. Bank v Municipal Assistance Corp. for City of N. Y., 40 NY2d 731, 739.)

For the reasons stated we would affirm the order of the Appellate Division.

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

Order insofar as appealed from reversed, without costs, and the case remitted to Supreme Court, Albany County, with directions to dismiss the complaint in accordance with the opinion herein.

       There was a time in the early history of the State when the Judges of the higher courts were designated members of the Council of Revision, which was required to determine the constitutionality of proposed legislation. This council, and the concept it represented, was abolished by the second State Constitution in the early part of the 19th century (see Lincoln, Constitutional History of New York, vol I, pp 592, 639, 743-749; vol II, pp 145-146).

       Even now we are informed that, were our court to issue implementing directives, practical means could be found, perhaps at some expense, to avoid voter confusion.