text:
    In the Matter of the State of New York, Respondent, v Avco Financial Service of New York Inc., Appellant.
    Argued March 27, 1980;
    decided June 5, 1980

      POINTS OF COUNSEL

      Alvin M. Stein, Stanley R. Stern, P. C., Amos Alter and Kenneth R. Davis for appellant.
    I. The clause is not an illegal waiver of the execution exemption. (Matter of Brooklyn Loan Corp. v Gross, 259 App Div 165; Matter of Rade v Denver Public Schools Credit Union, 205 F Supp 336.) II. The issue of unconscionability was not properly raised or considered. (Shapira v United Med. Serv., 15 NY2d 200; Matter of City of New York [Northern Blvd.], 270 NY 652; Zodiac Imports v Levis, 52 AD2d 543; Adam Young, Inc. v Ivy Broadcasting Co., 22 AD2d 651; Matter of People v Long Is. Home, 32 AD2d 618.) III. The clause is not unconscionable. (London Realty Co. v Riordan, 207 NY 264.) IV. The issue is for the Legislature, which has heretofore declined to enact any change in the law. (Matter of Rade v Denver Public Schools Credit Union, 205 F Supp 336.)

      Robert Abrams, Attorney-General (Shirley Adelson Siegel, William J. Kogan, Jacquelyn R. Bullock and Robert S. Hammer of counsel), for respondent.
    I. The clause is an unconscionable practice, hence the grant of injunctive relief against its use was a valid exercise of the sound judicial discretion of the Supreme Court. (State of New York v Princess Prestige Co., 42 NY2d 104; Matter of Lefkowitz v Bull Inv. Group, 46 AD2d 25; Wilson Trading Corp. v David Ferguson, Ltd., 23 NY2d 398; Rodriguez v Nachamie, 57 AD2d 920; Hollywood Leasing Corp. v Rosenblum, 100 Misc 2d 120; Public Loan Co. v Hyde, 47 NY2d 182; Williams v Walker-Thomas Furniture Co., 350 F2d 445; Woodward v Murray, 18 Johns 400; Harper v Leal, 10 How Prac 276; Crawford v Lockwood, 9 How Prac 547; Kneettle v Newcomb, 22 NY 249.) II. Apart from its unconscionability, the security clause is plainly illegal. It violates section 9-203 of the Uniform Commercial Code and the Federal Truth In Lending Act because of its insufficient description of the collateral, as well as section 5-702 of the General Obligations Law because it does not apprise the debtor of its effect in "plain English”. (Public Loan Co. v Hyde, 47 NY2d 182.) III. The self-help option of a creditor under the Uniform Commercial Code is not flouted by the result below. The Uniform Commercial Code and the State’s policy as expressed in CPLR 5205 can be applied in harmony, protecting the consumer while recognizing the legitimate rights of creditors.

      K. Wade Eaton, V. Jerome Luhn and Peter D. Braun for Hugh Wilkes and others, amici curiae.

    I. The central purpose of the security clause is to insure, through its in terrorem effect, the continuation of payments by necessitous debtors. (Wilson Trading Corp. v David Ferguson, Ltd., 23 NY2d 398.) II. The use of threats of repossession of property dear to its owners, but of little value to the secured party, violates public policy. (Long v Beneficial Fin. Co. of N. Y., 39 AD2d 11; Fifty States Mgt. Corp. v Pioneer Auto Parks, 46 NY2d 573; Truck Rent-A-Center v Puritan Farms 2nd, 41 NY2d 420; Equitable Lbr. Corp. v IPA Land Dev. Corp., 38 NY2d 516.)

      John Carter Rice and Gerard L. Conway for New York State Consumer Finance Association, amicus curiae.

    I. The consumer finance industry operates within a comprehensive statutory and regulatory framework which pre-empts judicial intrusion. (Matter of Collins v National Aniline Div., Allied Chem. & Dye Corp., 8 AD2d 900; Jackson v Citizen Cas. Co. of N. Y., 252 App Div 393, 277 NY 385; Matter of Deth v Castimore, 245 App Div 156; London Realty Co. v Riordan, 207 NY 264; Red Hook Cold Stor. Co. v Department of Labor of State of N. Y., 295 NY 1; People ex rel. Hull v Graves, 289 NY 173.) II. The preclusion of the use of household goods as the security for small loans would deprive the borrower of substantial rights of ownership.
   OPINION OF THE COURT

Fuchsberg, J.

The Attorney-General, acting on a consumer complaint, instituted this special proceeding under subdivision 12 of section 63 of the Executive Law to enjoin respondent Avco’s use of a security clause in a loan agreement form. The petition alleged that the clause was illegal and void as against public policy on the theory that it constituted an impermissible waiver of the personal property exemption afforded a judgment debtor under CPLR 5205 (subd [a]). Special Term summarily declared the clause invalid for this reason. Although the Appellate Division, over a single dissent, affirmed the order and judgment, it did so on the ground that the provision was unconscionable (70 AD2d 859). We now reverse, holding that it is not illegal and that the determination of unconscionability was improperly made without any opportunity for an evidentiary presentation as to the commercial and bargaining context in which the clause appears.

The clause at issue is one regularly inserted by Avco, a finance company, in its loan agreements. Its terms unmistakably provide: "This loan is secured by ** * * all household goods, furniture, appliances, and consumer goods of every kind and description owned at the time of the loan secured hereby, or at the time of any refinance or renewal thereof, or cash advanced under the loan agreement secured hereby, and located about the premises at the Debtor’s residence (unless otherwise stated) or at any other location to which the goods may be moved.”

It is not denied that this language must be understood to create a security interest in items of personal property which include the ones made exempt from the reach of a judgment creditor by CPLR 5205 (subd [a]). From its inception, this statute — along with its venerable antecedents — has embodied the humanitarian policy that the law should not permit the enforcement of judgments to such a point that debtors and their families are left in a state of abject deprivation (see Stewart v Brown, 37 NY 350, 351; Griffin v Sutherland, 14 Barb 456, 459).

It is well recognized, however, that simply because the law exempts such property from levy and sale upon execution by a judgment creditor does not mean that the exemption statute was intended to serve the far more paternalistic function of restricting the freedom of debtors to dispose of these possessions as they wish (see Montford v Grohman, 36 NC App 733; Mutual Loan & Thrift Corp. v Corn, 182 Tenn 554; Swan v Bournes, 47 Iowa 501, 503; 1 Jones, Chattel Mortgages and Conditional Sales [6th ed], § 114). No statute precludes exempt property from being sold; nor is there any which expressly interdicts the less drastic step of encumbering such property. So, for example, while contractual waivers of a debtor’s statutory exemptions are usually held to be void (see Caravaggio v Retirement Bd. of Teachers’ Retirement System, 36 NY2d 348, 357-358; Kneettle v Newcomb, 22 NY 249), the law has not forbidden a debtor to execute a mortgage upon the property so protected and thus create a lien which may be foreclosed despite the property’s exempt status (see Banking Law, § 356 [governing security interests in household furniture]; Uniform Commercial Code, § 9-102, subd [l]; Matter of Brooklyn Loan Corp. v Gross, 259 App Div 165, 166; Emerson v Knapp, 129 App Div 827; 6 Weinstein-Korn-Miller, NY Civ Prac, par 5205.7). The clause here permits no more and, hence, cannot be said to contravene the exemption statute.

The Attorney-General nevertheless argues that the clause should be invalidated under the doctrine of unconscionability. The contention, as accepted by the majority of the Appellate Division, is that "the inequality of bargaining position and the granting to the creditor of enforcement rights greater than those which the law confers upon a judgment creditor armed with execution, lead inevitably to the conclusion that the absence of choice on the part of the debtor left him with no recourse but to grant to his creditor rights which, in good conscience, the law should not enforce” (70 AD2d 859, 860). The clause is also alleged to be unconscionable in that its broad terms create security interests even in items not sold or financed by Avco and function mainly as an in terrorem device to spur repayment.

In this connection, we note initially that the statute under which this proceeding was brought (Executive Law, § 63, subd 12) lists "unconscionable contractual provisions” as a type of "fraudulent” conduct against which the Attorney-General is authorized to move. Furthermore, an application for injunctive or other relief under this provision is one which may properly look to the exercise of a sound judicial discretion (State of New York v Princess Prestige Co., 42 NY2d 104, 108). But the petition here provided no opportunity for the operation of such discretion on the issue of unconscionability since it alleged only that the clause per se was "illegal” and "void as against public policy and contrary to law”, theories which, as we have seen, are not consonant with established law. Indeed, the only ground presented to nisi prius was that the clause violated CPLR 5205 (subd [a]); the petitioner never raised an unconscionability argument until it arrived at the Appellate Division.

As a general proposition, unconscionability, a flexible doctrine with roots in equity (see Chesterfield v Janssen, Ves Sen 125, 155-156; 28 Eng Rep 82, 100 [Ch 1750]; Hume v United States, 132 US 406, 411), requires some showing of "an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party” (Williams v Walker-Thomas Furniture Co., 350 F2d 445, 449). The concept, at least as defined in the Uniform Commercial Code — which both parties seem to agree governs the transactions at issue here — is not aimed at "disturbance of allocation of risks because of superior bargaining power” but, instead, at "the prevention of oppression and unfair surprise” (McKinney’s Cons Laws of NY, Book 62 VS, Uniform Commercial Code, § 2-302, Official Comment 1). To that extent at least it hailed a further retreat of caveat emptor.

By its nature, a test so broadly stated is not a simple one, nor can it be mechanically applied (see White and Summers, Handbook on the Uniform Commercial Code [2d ed], p 151). So, no doubt precisely because the legal concept of unconscionability is intended to be sensitive to the realities and nuances of the bargaining process, the Uniform Commercial Code goes on to provide: "When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination” (Uniform Commercial Code, § 2-302, subd 2).

That such evidence may be crucial is made plain too by the drafters’ own explication of unconscionability as "whether * * * the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract” (McKinney’s Cons Laws of NY, Book 62 Vi, Uniform Commercial Code, § 2-302, Official Comment 1; see Wilson Trading Corp. v David Ferguson, Ltd., 23 NY2d 398, 403-404). And, in the light of this dependency upon the particular circumstances surrounding a transaction, courts and commentators have consistently construed subdivision 2 of section 2-302 to mandate at least the opportunity for an evidentiary hearing (Matter of People v Long Is. Home, 32 AD2d 618 [proceeding under Executive Law, § 63, subd 12]; Sinkoff Beverage Co. v Schlitz Brewing Co., 51 Misc 2d 446, 448; Fleischmann Distilling Corp. v Distillers Co., 395 F Supp 221, 233, n 18; see Ellinghaus, In Defense of Unconscionability, 78 Yale LJ 757, 812, n 257; 1 Anderson’s Uniform Commercial Code, § 2-302:5).

But as indicated, here a case on unconscionability was not presented to Special Term either in form or substance. Nor was that issue available when raised on appeal for the first time (see, e.g., City of New York v State of New York, 39 NY2d 951, 953). Specifically, at no point did the Attorney-General by affidavits from borrowers or otherwise make any factual showing as to such matters as, for instance, deception of borrowers as to the clause’s content or existence (cf. Jefferson Credit Corp. v Marcano, 60 Misc 2d 138; Matter of State of New York v ITM Corp., 52 Misc 2d 39), or the presence of language difficulties or illiteracy affecting its execution, or any other reasons that would have made it unlikely that consent was freely and knowingly given (see Frostifresh Corp. v Reynoso, 52 Misc 2d 26), all within the embrace of what is sometimes referred to as "procedural unconscionability” (see White and Summers, Handbook of the Uniform Commercial Code [2d ed], § 4-3, at p 150). Nor, for that matter, in light of the limited scope of its petition, was there occasion to delve into, much less attempt to prove, the now belated assertion of so-called "substantive unconscionability” (see, generally, Leif, Unconscionability and the Code — The Emperor’s New Clause, 115 U of Pa L Rev 485, 487; cf. Jones v Star Credit Corp., 59 Misc 2d 189 [Wachtler, J.]).

Accordingly, the order of the Appellate Division should be reversed and the petition should be dismissed, without costs, with leave to the petitioner to commence a new proceeding, if it be so advised.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur; Judge Gabrielli taking no part.

Order reversed, etc.

      . CPLR 5205 (subd [a]) provides in pertinent part, as follows:
      "(a) Exemption for personal property. The following personal property when owned by any person is exempt from application to the satisfaction of a money judgment except where the judgment is for the purchase price of the exempt property or was recovered by a domestic, laboring person or mechanic for work performed by that person in such capacity:
      "1. all stoves kept for use in the judgment debtor’s dwelling house and necessary fuel therefor for sixty days; one sewing machine with its appurtenances;
      "2. the family bible, family pictures, and school books used by the judgment debtor or in the family; and other books, not exceeding fifty dollars in value, kept and used as part of the family or judgment debtor’s library;
      * * *
      "5. all wearing apparel, household furniture, one mechanical, gas or electric refrigerator, one radio receiver, one television set, crockery, tableware and cooking utensils necessary for the judgment debtor and the family;
      "6. a wedding ring; a watch not exceeding thirty-five dollars in value; and
      "7. necessary working tools and implements, including those of a mechanic, farm machinery, team, professional instruments, furniture and library, not exceeding six hundred dollars in value, together with the necessary food for the team for sixty days, provided, however, that the articles specified in this paragraph are necessary to the carrying on of the judgment debtor’s profession or calling.”

      . This section originally recited that it applied to security interests created by contract in "any personal property and fixtures within the jurisdiction of this State” (emphasis mine). While the italicized language is missing from the revision, the deletion was intended solely to remove any restriction on out-of-State applicability (see Denonn, Supplementary Practice Commentary, McKinney’s Cons Laws of NY, Book 62V4, Uniform Commercial Code, § 9-102 [1979-1980 Supp]). That there was no intent to thereby exclude exempt property from mortgagability is apparent from subdivision 4 of section 9-203 which lists a variety of other statutes that may govern in cases of conflict but nowhere mentions CPLR 5205 (subd [a]).

      . Notably, too, the Legislature has thrice declined to adopt an amendment to section 356 of the Banking Law which would have made security interests in household furniture invalid and unenforceable (see NY State Assembly, 1979 Banking Comm Bill Mem on A 5538).


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Mark J. Gerard, Appellant.
    Argued April 30, 1980;
    decided June 6, 1980

      POINTS OF COUNSEL

      Milton S. Gould, Saul S. Streit, Richard F. Czaja, Neil T. Shayne and Paula Schwartz Frome for appellant.
    I. The evidence at trial was insufficient to establish beyond a reasonable doubt that Dr. Gerard was guilty of the offenses charged. (People v Castillo, 47 NY2d 270; People v Alvarez, 88 Misc 2d 709; People v Cornier, 42 Misc 2d 963; United States v Mespoulede, 597 F2d 329; People v Yanik, 43 NY2d 97; People v Montanez, 41 NY2d 53; People v Suffern, 267 NY 115; People v La Belle, 18 NY2d 405; People v Cleague, 22 NY2d 363; People v Ledwon, 153 NY 10.) II. The statute under which appellant was convicted is so vague and indefinite as to violate the due process requirements of the United States and New York Constitutions. (Connally v General Constr. Co., 269 US 385; People v Caswell-Massey Co., 6 NY2d 497; United States v Harriss, 347 US 612; Giaccio v Pennsylvania, 382 US 399; People v Scott, 26 NY2d 286; People v Grogan, 260 NY 138; People v Hardy, 47 NY2d 500; People v Firth, 3 NY2d 472; People v Munoz, 9 NY2d 51; People v Bailey, 21 NY2d 588.)

      Denis Dillon, District Attorney (Anthony J. Gírese and William C. Donnino of counsel), for respondent.
    Gerard was convicted by more than sufficient evidence beyond any doubt whatsoever under a constitutional statute. (People v Horton, 308 NY 1; People v Piazza, 48 NY2d 151; United States v

      Mespoulede, 597 F2d 329; United States v Zane, 495 F2d 683; People v Mayo, 48 NY2d 245; Matter of Jacobs v Joseph, 282 App Div 622; People v Pisani, 48 NY2d 725; Hunter v New York, Ontario & Western R. R. Co., 116 NY 615.)
   OPINION OF THE COURT

Fuchsberg, J.

The essential issue on this appeal is whether, in the context of a prosecution which relied on both direct and circumstantial evidence, the People presented sufficient proof to support a jury verdict declaring defendant Dr. Mark J. Gerard, a veterinarian specializing in the care of racehorses, guilty of two counts of "fraudulent entries and practices in contests of speed” arising out of a celebrated incident of "horse-switching” at Belmont Park Racetrack in 1977. The statute under which he was indicted and convicted is subdivision 1 of section 12-a of chapter 440 of the Laws of 1926 (as amd by L 1965, ch 1031, § 194).

The record reveals a factual scenario that might have been authored jointly by an Alfred Hitchcock and a Damon Runyon. The alleged intrigue may be said to have hit the light of day after September 23, 1977, when a recently imported Uruguayan four-year-old bay thoroughbred entered in the ninth race at Belmont Park under the name Lebon won handily, finishing four lengths ahead of the pack. Having ended up as a miserable "also-ran” in its only previous North American outing, the horse in its second entry went to the post at pari-mutuel odds of 57 to 1. As one of the lucky bettors, defendant’s share of the winner’s pool was approximately $77,000.

These seemingly coincidental events soon were revealed to be anything but happenstance. Suspicions voiced by several Uruguayan racing fans led to the discovery that the winning horse in fact was not the "longshot” Lebon, a South American five year old that had not won a race since its legs began to fail, but a virtual look-alike, Cinzano, a highly touted prizewinner also brought in from Uruguay at the same time. As it turned out, Gerard had arranged for the purchase of both horses from their South American owners several months earlier, the $450 Lebon ostensibly for Jack Morgan, defendant’s former trainer, and the $150,000 Cinzano for Joseph Taub, a client and investor in sports enterprises.

Shortly after the. animals had arrived at John F. Kennedy International Airport in New York City, and immediately following their release from quarantine, they were stabled at Gerard’s Muttontown, Long Island, horse farm, where, within no more than a day after their arrival, an unfortunate incident purportedly befell Cinzano. As it was being returned to its stall after exercise, it allegedly reared up, struck its head on a ceiling beam and fell, fracturing its skull and breaking a leg in the process. The report the defendant soon thereafter was to file with Taub’s insurance company (which was to indemnify the owner for the loss in full) claimed that the severity of the injuries necessitated the prompt destruction of the horse, which Gerard personally effected that very day.

According to the available proof, only Gerard and his estranged wife were eyewitnesses to the euthanasia. Thus, since the animal’s carcass was disposed of without any loss of time, the couple appears to have beén the only ones in a position to make a positive identification of the horse that was despatched. But Gerard never took the stand, and his wife was not called during the People’s case. However, the defense did stipulate that of the two horses, the survivor, who remained in Gerard’s care and control, was Cinzano.

Additional data of significance were proffered by the People in the form of testimony by Jack Morgan. Defendant’s former trainer related that Lebon had been shipped in from South America in his name because State Racing and Wagering Board rules prohibited veterinarians from owning horses licensed to race in New York (see 9 NYCRR 4002.14). Actually, he told the jury, he was only the "paper owner”, Gerard having paid the purchase price of the horse and the expenses of its care, completed its registration forms and participated in deciding when and where it was to race. Morgan further denied that he had any inkling that "Lebon” was Cinzano.

This as background, the defense theory, bearing in mind that knowledge was an essential element of the crime charged, was that Gerard himself was unaware of the imposture. To support this contention, it relied almost entirely on Mrs. Gerard, who was a horse fancier in her own right. Having been granted immunity by the Grand Jury, she maintained that it was she who, on her own initiative, had arranged the purchase of the two animals, had exchanged their identifying halters and, as the only eyewitness to the accident, had misled the defendant, whom she thought incapable of distinguishing Lebon from Cinzano, into believing that it was the latter that had been injured. Mrs. Gerard, who had a history of emotional disorders and was under a psychiatrist’s care at the time of trial, explained further that she had devised the scheme because she had long been incensed over what she perceived to be the racing industry’s indifference to the welfare of the animals around which it was built. To hear her tell it, her plan was to alleviate this condition by establishing a humane society for thoroughbreds. The money she hoped to win with a "ringer” was to provide her with the wherewithal to finance reforms.

Insisting that this testimony "accounts for all the facts proven” and is therefore "consistent with either the hypothesis of innocence or the hypothesis of guilt”, defendant argues that the prosecution failed to prove its case beyond a reasonable doubt (see People v Montanez, 41 NY2d 53, 57). But that evidence leaves a jury with a choice between competing facts and inferences does not mean that a prima facie case has not been established. Characteristic of the existence of a question of fact is that there be at least two sides. The essential thing is that, after a trier of facts weighs the choices qualitatively and quantitatively, the selection it makes be one arrived at beyond a reasonable doubt (People v Castillo, 47 NY2d 270, 277).

Nor in this case need we be concerned with the so-called "moral certainty” standard utilized to draw a jury’s attention additionally to the "complex analytical function” it may have to perform in cases that depend entirely on circumstantial evidence (see People v Barnes, 50 NY2d 375). For, since the stipulation as to the identity of the surviving horse as well as the testimony of Jack Morgan were in the nature of direct evidence, it cannot be said that the prosecution’s case rested on circumstantial evidence alone.

These principles in mind, we observe that defendant at this stage continues to focus, as he did at trial, on the issue of scienter, emphasizing that the proof of that element was insufficient to support a finding of its existence beyond a reasonable doubt. We note, however, that there was a barrage of circumstances developed by the People on this matter.

These include such things as Gerard’s admission to the State Racing and Wagering Board that he could tell the two horses apart when they were brought into the country; the fact that Lebon was seen wearing a halter with the name Cinzano on it at the Gerard farm the day it became a casualty; defendant’s solicitation of a fellow veterinarian to state falsely on the insurance report that the latter had examined "Cinzano” the night it was destroyed; his disposal of Lebon’s remains so that its distinguishing markings would no longer be available for comparison with those of the true Cinzano; his use of yet another pseudonym to identify the horse when it was quartered at Saratoga the month before the race; his advice to track personnel that "Lebon” was four years old when, as he had to have been aware from the documents he had processed, the true Lebon would have been five; and his placement of $3,100 in bets on a horse which he supposedly believed was a "has-been” sold for a nominal $450.

Moreover, the record also highlights evidence that, once news of the switch broke, defendant engaged in conduct that can fairly be interpreted as an attempt to cover up his wrongdoing: He told the manager of the stables at Saratoga to deny that he had ever paid for "Lebon’s” care there. He tried to induce Morgan to assert ownership of "Lebon” at a racing board hearing and offered him counsel of his choice at no cost. He tried to badger the veterinarian who signed the insurance form to adhere to his misrepresentation that he was present at the Gerard farm the night of "Cinzano’s” destruction. And he even assisted in the falsification of the doctor’s diary entries on the events of that evening.

As a counterpoise illustrating how open and aboveboard his comportment was, defendant relies in particular on such things as the fact that, in completing customs forms when the horses arrived in the United States, he was reasonably accurate in noting the small differences in their markings; that the two Belmont races in which "Lebon” was entered were low stakes claiming races, a course of conduct that would have been irrational, it is asserted, if he knew the colt was worth $150,000 because claiming race rules permit anyone who bids the stipulated amount ($10,000 or $16,000 here) to claim the mount for that price at the finish; that he personally placed his bets on these races at Belmont rather than at a remote betting facility; that the amount he wagered was no more than his "usual bet”; and that he cashed his winning tickets on the day of the race and openly discussed them with the track’s wagering personnel.

But, almost needless to say, the jury did not have to draw the inferences defendant suggests. For one thing, reliance on the testimony of Mrs. Gerard is not, of course, necessarily availing since the jury could and apparently. did pass adversely on her credibility when it voted to convict. So too, for example, that Gerard accurately drew the distinguishable identifying marks of Lebon and Cinzano on the customs forms may be seen not so much as the lack of a plan to deceive as an indication of his ability to tell them apart. And, considering Lebon’s anonymity in this country, resort to claiming races could reasonably be viewed as a minimal risk.

In sum, from the pattern of facts and deceptions as a whole emerges a solid basis for inferring that Gerard knew "Lebon” was Cinzano and, in consequence, that he masterminded the plan to race the "ringer”. That this plot was not flawlessly conceived and executed does not prevent the jury from finding beyond a reasonable doubt that that inference was justified.

We therefore conclude that the conviction was premised on legally sufficient evidence. Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed.

      . Defendant was sentenced to a $1,000 fine on the first count and a one-year period of imprisonment on the second. This appeal is from an order of the Appellate Division, Second Department, which affirmed the judgment of conviction.

      . Section 12-a reads, in relevant part: "Fraudulent entries and practices in contests of speed. Any person who: 1. Knowingly enters for competition, or furnishes to another person for entry or competition, or brings into this state for entry or competition for any purse, prize, premium, stake or sweepstakes offered or established by any person, association or corporation, any running, trotting or pacing horse, mare, gelding, colt or filly under an assumed name, or out of its proper class, or that has been painted or disguised or represented to be any other or different horse, mare, gelding, colt or filly from the one which is purported to be entered where such prize, purse, premium, stake or sweepstakes is to be decided by a contest of speed * * * Shall be guilty of a misdemeanor, punishable by a fine of not less than five hundred nor more than fifteen hundred dollars, or by imprisonment for not more than one year, or both.”

      . We are advised by counsel on this appeal that, at the time of trial, the insurer was seeking to recover this amount from Taub.

      . As to other points raised by the defendant, suffice it to note that we find them to be without merit.


text:
    The People of the State of New York, Respondent, v Joseph Pena, Appellant. The People of the State of New York, Respondent, v Harry Turrell, Appellant.
    Argued April 23, 1980;
    decided June 10, 1980

      POINTS OF COUNSEL

      Lawrence J. D. Mort for Joseph Pena, appellant.
    I. Appellant has been denied rights guaranteed by the Sixth Amendment, because the trial court abused its discretion in limiting cross-examination of both prosecution witnesses and the trial court persistently interrupted appellant’s counsel during cross-examination of the only eyewitness. (People v Cook, 37 NY2d 591; People v Vidal, 26 NY2d 249; People v Duffy, 36 NY2d 258; People v Warner, 52 AD2d 684; People v Davis, 44 NY2d 269; Davis v Alaska, 415 US 308.) II. Appellant has been denied his Fourteenth Amendment right to due process of law by the failure of the prosecutor to disclose: prior statements of complainant, the fact of the complaining witness’ institutionalization at the time of trial, his juvenile record and underlying facts thereof, his drinking problem, his involvement in a burglary, complainant’s prior contact with Officer Imperiale; and by the failure of the prosecutor to correct an erroneous impression of the jury that complainant was without guile, and the misconduct of the prosecutor in bolstering said wrongful impression by his argument. (United States v Agurs, 427 US 97; People v Consolazio, 40 NY2d 446; People v Maynard, 80 Misc 2d 279; People v Roth, 30 NY2d 99; People v Rosario, 9 NY2d 286; Matter of Kelvin D., 40 NY2d 895; People v Hickman, 34 AD2d 831; People v Clemons, 48 AD2d 802; People v Range, 49 AD2d 832; United States ex rel. Rohrlich v Fay, 240 F Supp 848.) III. Appellant has not been proven guilty of crimes beyond a reasonable doubt. (People v Early, 59 AD2d 912; People v Strong, 47 AD2d 798; People v Wachowicz, 22 NY2d 369; People v Ozarowski, 38 NY2d 481; People v Cwikla, 60 AD2d 40; People v Lopez, 58 AD2d 516; People v Morris, 39 AD2d 750; People v Santos, 38 NY2d 173.) IV. The form and content of the instructions to the jury denied appellant a fair trial. (People v Gonzalez, 293 NY 259; People v Perez, 54 AD2d 1009; People v Forest, 50 AD2d 260; People v Hicks, 91 Misc 2d 205; People v Cohen, 61 AD2d 929.) V. Admission of a knife in no way connected with the crime was prejudicial error; admission of testimony and argument about a gun and intent to kill was prejudicial error; argument of the trial assistant about facts not in evidence was prejudicial error; admission of evidence of an uncharged crime was prejudicial error, all of which denied appellant a fair trial. (People v Mirenda, 23 NY2d 439; People v Melendez, 14 AD2d 557; People v Ashwal, 39 NY2d 105; People v Cook, 42 NY2d 204; People v Griffin, 29 NY2d 91; People v Jackson, 40 AD2d 1006; People v Crimmins, 41 AD2d 933.) VI. Appellant’s sentence was unfair and excessive when he had never withdrawn a prior offer to plead guilty; he was unfairly punished for his codefendant’s exercise of his right to trial by jury. (Santobello v New York, 404 US 257; People v Esposito, 32 NY2d 921; People v Johnson, 48 AD2d 643.)

      Robert Bergen and William E. Hellerstein for Harry Turrell, appellant.
    I. Evidence that codefendant Pena possessed a paper bag containing a knife was insufficient to prove that a half hour earlier appellant used the same bag and knife in committing a robbery. (Vachon v New Hampshire, 414 US 478; People v Montanez, 41 NY2d 53.) II. Appellant was denied the constitutional right to confront his only accuser by the court’s order precluding any impeachment of that witness with his prior bad acts and his recent adjudication of delinquency. (Davis v Alaska, 415 US 308; Douglas v Alabama, 380 US 415; Pointer v Texas, 380 US 400; People v Ocasio, 47 NY2d 55; People v Sorge, 301 NY 198; People v Duffy, 36 NY2d 258; People v Moore, 42 AD2d 268; Matter of Hecht, 90 Misc 2d 308; People v Greer, 49 AD2d 297, 42 NY2d 170.) III. The prosecution was improperly relieved of its constitutionally mandated burden of proof (US Const, 14th Arndt; NY Const, art I, § 6) when the court charged, in effect, that intent could be presumed from appellant’s voluntary acts and explained reasonable doubt as proof "to a moral certainty” which could be determined by judging whether the "scales are even” in the same manner as "everyday” decisions. (Morissette v United States, 342 US 246; United States v United States Gypsum Co., 438 US 422; Mullaney v Wilbur, 421 US 684; United States v Robinson, 545 F2d 301; People v Dellipizzi, 61 AD2d 961; People v Bonifacio, 190 NY 150; People v Borrero, 26 NY2d 430; People v Hicks, 91 Misc 2d 205; People v Cotto, 28 AD2d 1116; People v Forest, 50 AD2d 260.) IV. Appellant’s due process right to a fair jury determination of the facts was violated when the court urged the jurors, over defense objection, to resolve all questions about the evidence in the jury room and to not return to have testimony read except as a "last resort”. (People v Jackson, 20 NY2d 440; People v Miller, 6 NY2d 152; People v Gonzalez, 293 NY 259; People v Britt, 43 NY2d 111; People v Lorenz, 16 AD2d 135.)

      Eugene Gold, District Attorney (Alan D. Rubinstein of counsel), for respondent.
    I. The court’s charge did not deprive appellants of a fair trial. (Sandstrom v Montana, 442 US 510; People v Robinson, 36 NY2d 224; People v Russell, 266 NY 147; People v Getch, 68 AD2d 891; United States v Robinson, 595 F2d 301; People v Fournier, 70 AD2d 491; People v Montanez, 41 NY2d 53; People v Benzinger, 36 NY2d 29; People v Tyler, 54 AD2d 723.) II. The trial court did not coerce the jury into requesting a rereading of testimony only as a "last resort”. III. The guilt of both appellants was proven beyond a reasonable doubt. (People v Early, 59 AD2d 912; People v Briggs, 52 AD2d 1053; People v Iglesias, 40 AD2d 778; People v Woods, 41 NY2d 279; People v Mirenda, 23 NY2d 439.) IV. The prosecutor’s summation did not deprive appellants of a fair trial. V. Appellants were not deprived of their right of confrontation. (Davis v Alaska, 415 US 308; People v Gruden, 42 NY2d 214; People v Greer, 42 NY2d 170; People v Duffy, 36 NY2d 258; People v Sandoval, 34 NY2d 371; People v Ocasio, 47 NY2d 55; People v Simone, 92 Misc 2d 306; People v Norman, 76 Misc 2d 644; People v Le Grand, 67 AD2d 446; People v Harte, 99 Misc 2d 86.) VI. The sentence imposed upon appellant Pena should be affirmed. (People v Discala, 45 NY2d 38; People v Gittleson, 18 NY2d 427; People v Speiser, 277 NY 342; People v Esposito, 32 NY2d 921; Corbitt v New Jersey, 439 US 212; United States v Jackson, 390 US 570.)
   OPINION OF THE COURT

Fuchsberg, J.

Appellants Harry Turrell and Joseph Pena stand convicted, after a trial by jury, of robbery in the first degree and criminal possession of stolen property in the third degree, both arising out of the robbery of 16-year-old Anthony Irons.

Their convictions having been affirmed by the Appellate Division, each defendant now raises the claim that the proof was insufficient to convict him of first degree robbery, which, under the theory charged in the indictment, involves the use or threatened immediate use of a dangerous instrument (Penal Law, § 160.15, subd 3). Despite Turrell’s express threats to shoot the victim, no weapon was observed during the course of the robbery; in view of these circumstances, appellants maintain that it could not be found that a knife later seized from Pena played any role in the crime. In addition, both defendants assign as error the trial court’s refusal to allow cross-examination of the arresting officer on the subject of the complainant’s confidential youthful offender adjudication. They further complain of errors in the charge, particularly on the availability of trial testimony .to aid the jury in its deliberations. Finally, Pena alone contends that he was penalized for exercising his right to a trial when the trial court imposed a more severe sentence than he had been promised in the context of an unconsummated plea bargain. For the reasons that follow, we find each of appellants’ arguments unpersuasive.

The facts are uncomplicated. After an initial brief encounter during which Turrell and Pena apparently sought to determine whether Irons had any drugs, the two men followed him into a nearby park, and, upon approaching the bench where he was seated, Turrell asked him for money. Irons surrendered what little he possessed, whereupon Turrell thrust his arm, with its hand enclosed in a brown paper bag, towards Irons, who later was to testify it "looked like there was a gun in it”, and threatened, "See, if you run, I’ll shoot you”. Pena, meanwhile, instructed Irons to remove his coat, telling the boy that it would be returned if he were to hand over $10 to Turrell. Before the two departed, Turrell added that if Irons called the police he would be killed.

Irons nevertheless promptly summoned the police and, when they arrived, joined them in the search for the robbers. After driving around for a short time, Irons sighted both Turrell and Pena standing on a street corner three blocks from the park in which he had been accosted. Pena was wearing the complainant’s coat and holding in his hand a brown paper bag of the type employed in the robbery and which, upon his arrest, was found to contain a knife. At the trial, in which the People’s case was developed through Irons and the arresting officer, both the paper bag and the knife were introduced as evidence.

These facts before us, we treat first with the alleged insufficiency of proof. Doing so, we observe that, in the circumstances of this case, the issue narrows down to whether the People met their burden of proving that Turrell possessed and employed a "dangerous instrument” when he and Pena divested young Irons of the currency and the coat. Because Irons testified that he did not actually observe the weapon within the paper bag with which Turrell menaced him at the time of the commission of the robbery, proof of this element of the crime was dependent on circumstantial evidence. While the proof, in light of the affirmance at the Appellate Division, must now be viewed most favorably to the People, its sufficiency must be assessed in terms of whether the inferences which the jury must have drawn in order to convict are to be found in the evidence adduced at trial (People v Piazza, 48 NY2d 151, 158-159; People v Kennedy, 47 NY2d 196, 202-203). That means that the foundation for the finding of guilt may not be based on conjecture or suspicion but on facts and inferences which "common human experience would lead a reasonable man, putting his mind to it, to * * * accept” (People v Wachowicz, 22 NY2d 369, 372; People v Castillo, 47 NY2d 270, 277).

Decisional law tells us that, though the statutory ground upon which the first degree robbery count was brought is not explicit in that regard (Penal Law, § 160.15, subd 3), the jury was required to find that Turrell actually possessed a dangerous instrument at the time of the crime (see People v Early, 59 AD2d 912; People v Briggs, 52 AD2d 1053). To that end, the prosecutor’s voluntary disclosure form and his argument at the trial made clear that the People were proceeding upon the theory that the concealed weapon with which Turrell exercised duress on Irons was the knife later found in his accomplice Pena’s possession. As we analyze the record, the jury indeed could have found this the most natural inference to be drawn.

Only about 20 minutes and several city blocks separated the defendants from the time and scene of the crime when they were apprehended. Pena was then holding a knife inside a brown paper bag similar in appearance to the one which Irons had so recently seen in Turrell’s possession. That Turrell’s verbal threat was to shoot Irons rather than to stab him did not necessarily negate the inference that the knife was, in. actuality, the dangerous weapon then utilized by the robbers. It is conceivable that a mugger, relying on a knife to support his depredations, may nevertheless find it convenient to advantage himself of the fact that his weapon was masked, as it was by the bag in this case, to allow him to discourage his victim from any attempt to flee with the suggestion, founded or not, that escape would be intercepted by a bullet. Furthermore, the "threatened] immediate use” of a dangerous instrument to which subdivision 3 of section 160.15 speaks requires no correspondence between the content of any verbal threat and the instrumentality behind it. The "use” or "threaten[ed] immediate use” need not be accompanied by any statement. For example, the .brandishing of a weapon might be enough. So would a display of what appears to be a firearm (Penal Law, § 160.15, subd 4). It therefore sufficed, if found by the jury, that a threat brought home, as in this case, by Turrell’s thrusting his hand, which held the concealed instrument, toward the victim, in fact represented the imminent use of force by means of an instrument "readily capable of causing death or other serious physical injury” (Penal Law, § 10.00, subd 13; see People v Woods, 41 NY2d 279, 283).

True, there was no direct evidence that Turrell and Pena had exchanged possession of the bag or knife during the brief period between the robbery and their arrest. And, concededly, at trial Irons could not say for certain whether the bag found in Pena’s hands was the very same one he observed in Turrell’s. But the Trial Judge was both correct and realistic in demanding no more positive identification as a predicate for the admission into evidence of the bag found on Pena than that it "looked like” the one Irons had seen on Turrell (see People v Mirenda, 23 NY2d 439, 453 [eyeglasses "resembled”]; People v Miller, 17 NY2d 559 [guns "look like”]; People v Randolph, 40 AD2d 806 [gun "like the one”]; Fisch, New York Evidence [2d ed], § 133, p 77). Midst the surrounding circumstances this was sufficient to permit the jury to find, as it apparently did, that the bag was the one used in the commission of the crime.

That it would also have been possible for it to reach a contrary conclusion is no answer. As on all issues which stand or fall on circumstantial evidence "[a] choice between competing inferences, as a choice between competing facts, is available to the trier of facts so long as the one arrived at is found beyond a reasonable doubt” (People v Castillo, 47 NY2d 270, 277, supra; see People v Bracey, 41 NY2d 296, 302). So too, at this stage of the litigation, it is enough that, though it was possible to draw the inference that either Pena or Turrell in the short span between crime and capture had somehow obtained and placed a knife in the brown paper bag, or the inference that the knife was in it when the threat was delivered, taking "the whole complex of interrelated information” which was presented (People v Kennedy, 47 NY2d 196, 201, supra), the jury was entitled to discount the former inference as an unreasonable one (People v Bracey, supra). In all, we cannot say that a prima facie case was not made out.

We now consider appellants’ claims that their constitutional rights of confrontation were abridged when the Trial Judge disallowed any questioning regarding the juvenile complainant’s Family Court adjudication. The issue arose when, during the hearing on defendants’ motion to suppress their confessions, a notation in the arresting officer’s memo book, which had been furnished to defense counsel for impeachment purposes (see People v Rosario, 9 NY2d 286), revealed that Irons was "previously known” to the officer. This alerted appellants to the existence of the complainant’s juvenile arrest record. In response to the District Attorney’s pretrial motion to preclude appellants from making any reference to Irons’ juvenile record, which by law was required to be kept confidential (see Family Ct Act, § 784), counsel for Turrell did no more than state that he "intend[ed] to ask the officer if he knew the complainant before”. Although the Trial Judge indicated he would allow this manner of inquiry, defense counsel never availed himself of the opportunity.

Nor was any other objection or request made by counsel for either defendant, not even when Turrell’s counsel made the seemingly inexplicable remark that the then 16-year-old witness "ha[d] a record as an adult”. And, neither registered any protest when the Trial Judge in colloquy opined that there should be no probing about any offense committed by Irons as a minor (but cf. Davis v Alaska, 415 US 308; People v Gissendanner, 48 NY2d 543). Consequently, the point now raised was not preserved for review.

Next, turning to defendants’ contentions that reversible error was committed in the course of the charge to the jury, we find that only one was preserved for our review (CPL 470.05,. subd 2). That is defendants’ assertion that the Trial Judge impermissibly restricted the jury’s right to have testimony or parts of the charge read back to it during its deliberations. Critical was the following language "let me tell you something, this is, in no way, intimidating you. You heard it here yesterday. Don’t tell me you haven’t heard it. If you were paying the attention that these gentlemen were, and I was, you should be able to reconcile those matters in there. It’s at your disposal, but see if you can do it in there. This should be your last resort.” On their face, these instructions do have an inhibiting sound. In voicing their objection, defendants’ counsel not only informed the court that "it wasn’t clear * * * that each juror had the right to hear the testimony read back”, but respectfully characterized the Judge’s admonition as a "gentle coercive”.

For self-evident reasons, when, in the course of their consideration of a case, jurors find the need to refresh their recollection or more fully comprehend any part of either the trial testimony or the instructions they have received on the law, they are privileged to have these read back (see PJI 1:24; 1 Devitt and Blackmar, Federal Jury Practice and Instructions [3d ed], § 18.11). Any judicial concern that the procedure may be abused is not to be manifested by discouraging the jury from employing it, but, where occasion arises, by a tactful and restrained exercise of the measure of discretion Trial Judges retain as to their manner of complying with such requests (cf. 50 ALR2d 176). However, better as it would have been had the advice to the jury been phrased in less forbidding tones, in the context of the related portions of the charge on this subject we cannot say that the instruction as a whole adversely affected the jury’s actions in this regard.

The paragraph in which the flawed language occurred was preceded by the following one: "If, at anytime, you feel that you cannot recollect, by discussion, as to what it was, you have a right to request, by giving it to the Forelady in question form, that you want certain testimony read or you want something in my charge, and I’ll tell you what my charge was. Or, if you want to bring in the exhibits, you have a right to have the exhibits brought in right now, or send for them, at anytime. These are the things that are at your disposal”. This unqualified offer was followed immediately by the court’s co-operative advice that the jury would be provided with a pad "in case there are any questions”. Moreover, cushioned by these ameliorating comments, the over-all connotation perceived by the jury was a sufficiently unrestraining one for it to have later asked for and received supplemental instructions without untoward incident.

Finally, we remark on defendant Pena’s claim that he was penalized for exercising his right to a jury trial by the imposition of a heavier-than-promised sentence. It appears that the District Attorney had initially offered Pena, a second felony offender, the option of pleading to third degree robbery and receiving a two- to four-year term of imprisonment on the condition that he make a statement inculpatory of Turrell and testify against him. However, when, perhaps because Turrell’s own subsequent refusal to plead guilty made the prospect of taking the stand more real, Pena began to balk at fulfilling his part of the bargain, the prosecutor withdrew his earlier plea offer, as he had a right to do (CPL 220.30, subd 3). The District Attorney then gave Pena the choice of either pleading to the entire indictment on the understanding that he would recommend a three- to six-year sentence, or of going to trial. The defendant chose the latter. Subsequently, after Pena had been convicted, the Judge, relying on the recommendation of the postconviction probation report, fixed a 5- to 10-year term of imprisonment.

From the fact that the court had been willing to accede to the District Attorney’s recommendation as to sentence in a plea bargaining context, it does not follow that it was not free, once the defendant was found guilty, to impose a greater, but nevertheless lawful, term of imprisonment. It is not now to be questioned that a State may encourage a guilty plea by offering substantial benefits, notwithstanding the fact that every such instance is bound to have the concomitant effect of discouraging a defendant’s assertion of his trial rights (Corbitt v New Jersey, 439 US 212, 219-221; Bordenkircher v Hayes, 434 US 357, 364). Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater (see Adelstein, Negotiated Guilty Plea: A Framework for Analysis, 53 NYU L Rev 783, 802-807, 820-823; cf. People v Selikoff, 35 NY2d 227, 233-234), it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea. Since no more than this emerges from the record here, it cannot be said that Pena was punished for refusing to accept the plea bargain.

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

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

In each case: Order affirmed.

      . The statute provides: "A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime * * * 3. Uses or threatens the immediate use of a dangerous instrument”.

      . Subdivision 3 of section 160.15 of the Penal Law was apparently intended to take into account the gravity of the threat faced by the robbery victim as well as the nature of the force employed by the robber. Its predecessor statute was far less precise, specifying as an aggravating circumstance that the perpetrator was "armed with a dangerous weapon” (Penal Law of 1909, § 2124, subd 1); it permitted the prosecution for first degree robbery whether the culprit openly menaced the victim with a shotgun or, without issuing any threat to use it, merely had, let us say, a penknife in his pocket. The more subtle grading scheme introduced by the revised Penal Law somewhat mitigated this problem. Thus, only one who commits robbery while carrying a "deadly weapon” upon his person is now guilty of robbery in the first degree (emphasis added). (Penal Law, § 160.15, subd 2; Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 10.00, p 22.) However, if he does not carry a weapon classified as "deadly” but instead a more broadly defined "dangerous instrument” (Penal Law, § 10.00, subd 13), the statute now requires a showing not merely of possession but of "use” or threatened "immediate use”, on the theory that it was the employment of such an instrumentality that was significant (see People v Iglesias, 40 AD2d 778; cf. Model Penal Code, § 221.1, Comments [Tent Draft No. 11], p 70).


author: Jones, J. Jasen, J.

text:
    The People of the State of New York, Respondent, v Melvin Brothers, Also Known as Arthur Every Regan, Appellant.
    Argued March 27, 1980;
    decided May 29, 1980

      POINTS OF COUNSEL

      Anna M. Perry and John F. Middlemiss, Jr., for appellant.
    The trial court erred in denying defendant’s motion to dismiss the indictment for failure to diligently prosecute and for denial of a speedy trial. (People v Hamilton, 46 NY2d 932; People v Moore, 47 NY2d 872; Klopfer v North Carolina, 386 US 213; Dillingham v United States, 423 US 64; People v Sturgis, 38 NY2d 625; People v McCaskey, 67 AD2d 1010; People v Ranellucci, 43 NY2d 943; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498; People v Cahill, 54 AD2d 938.)

      Patrick Henry, District Attorney (Gabrielle Weglein and Maureen S. Hoerger of counsel), for respondent.
    The trial court did not err in its denial of appellant’s motion to dismiss the indictment for failure to diligently prosecute and for denial of a speedy trial. (People v Gruttola, 43 NY2d 116; People v Hamilton, 46 NY2d 932; United States v Pierro, 478 F2d 386; People v Goodman, 41 NY2d 888; People v Conrad,
      44 NY2d 863; People v Scaccia, 55 AD2d 444; People v Johnson, 38 NY2d 271.)
   OPINION OF THE COURT

Jones, J.

Inasmuch as CPL 30.30 accords a defendant the right to dismissal of his indictment "where the people are not ready for trial” within the period prescribed by the statute rather than according him a legislatively created right to a speedy trial, court congestion does not excuse the People’s failure to be ready for trial or defeat defendant’s entitlement to a dismissal under CPL 30.30.

Defendant was arrested on New Year’s Day, 1975 and indicted the following February 13 on two counts of driving while intoxicated as a felony (Vehicle and Traffic Law, § 1192, subds 2 and 5, and subds 3 and 5). He was arraigned on February 26, 1975 by Suffolk County Court and released on his own recognizance. The case appeared on the County Court Calendar on March 27 and again on April 3. On the latter date, apparently with defendant’s consent, it was transferred to a "ready reserve” calendar and remained there until January 20, 1976 when it was transferred to Supreme Court, Suffolk County. It next appeared on the calendar of that court on February 19, 1976.

On March 3, 1976 defendant moved for dismissal of his indictment under CPL 30.30 (statutory ready trial rule) and CPL 30.20 (constitutional right to speedy trial). The prosecutor submitted no papers in opposition to the motion. On March 19, 1976 the court obtained and introduced into the record factual and statistical data with reference to the trial of criminal cases in Suffolk County Court. Based on that data and on his own personal knowledge of the Trial Calendar situation in that court, the hearing Judge found that the "sheer weight of numbers” of cases (including those involving incarcerated defendants charged with class A, B and C felonies) coupled with the limited availability of judicial personnel constituted, with respect to defendant who was charged with a class E felony and was not incarcerated, "exceptional circumstances” within the meaning of CPL 30.30 (subd 4, par [g]) and denied the motion to dismiss on both branches. Thereafter on April 23, 1976 defendant pleaded guilty to the first count of the indictment (Vehicle and Traffic Law, § 1192, subds 2, 5), and sentence was imposed. On appeal the Appellate Division affirmed, the judgment of conviction. We now reverse, vacate the conviction and dismiss the indictment.

On the CPL 30.30 branch of the appeal we note that, although on oral argument of the motion to dismiss the prosecutor asserted that he had been ready for trial as early as April 3, 1975, there was submitted to the hearing court no record proof of any contemporaneous communication of his readiness within the standard enunciated in People v Hamilton (46 NY2d 932, 933); the oral assurance on argument of the motion was insufficient. Accordingly, it must be taken that the prosecutor did not establish that he was "ready for trial”. Thus, the disposition of this branch of the appeal turns on whether the delay in being ready may be excused under CPL 30.30 by the factual determination (for which there is ample support in the record) that trial of the case was prevented by court congestion which extended over the period between April 3, 1975 and January 20, 1976. It is the People’s contention that the trial delay due to this congestion constituted a delay "occasioned by exceptional circumstances” within CPL 30.30 (subd 4, par [g]) and that the duration thereof should accordingly be excluded from the period within which the People were required to be ready for trial.

In the first case to reach our court after the enactment of CPL 30.30 we took care to note the very great difference between the right of a defendant to a dismissal because of the failure of the People to be ready for trial in accordance with the mandate of that section and the right of a defendant to dismissal on the ground that he had been denied his constitutional right to a speedy trial (People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498). In that case, confronted with proof of calendar congestion and lack of adequate court facilities, we wrote with respect to the statutory provision:

"We have been urged to interpret the clause in the statute, 'where the people are not ready for trial’ as intended to refer not alone to the District Attorney, but more broadly to the State of New York. Under the interpretation pressed on us the fact (which we think we can properly assume on the record before us) that the District Attorney has been and is ready for trial in each of these cases, would not satisfy the requirements of the statute. The statute, we are told, should be read as demanding not only that prosecutor be ready but that court facilities also be available. In substance, we are invited by interpretation to read CPL 30.30 as containing the substance of the rule promulgated by the Administrative Board of the Judicial Conference on April 30, 1971 (the so-called 'prompt trial’ rule).

"This we cannot do. Not only would such a construction do violence to the language of CPL 30.30; it would evidently fly in the face of the clear intention of the Legislature which in passing chapter 184 of the Laws of 1972 not only adopted the present language of CPL 30.30 but additionally and explicitly provided that it 'shall be deemed to supersede any rule of the Administrative Board’. The context of public discussion which attended the passage of the amendment confirms this conclusion.

"Accordingly, on the records before us we cannot say that the appellants have established the prerequisites entitling them to the relief which they seek under CPL 30.30.” (31 NY2d 498, 501-502.)

Thus, we held that once the District Attorney had effectively announced his readiness for trial the operational effect of CPL 30.30 was exhausted. If the defendant’s trial were thereafter delayed on account of court congestion, he would not be entitled to dismissal under CPL 30.30. His only remedy would lie by way of proof that he had been denied his constitutional right to a speedy trial.

In reaching our decision in Franklin we explicitly left open "the question whether calendar congestion or lack of court facilities constitute 'exceptional circumstances’ within the meaning of subdivision 4 (par. [g]) of CPL 30.30” (p 502, n 4). That question is now presented for resolution. Although the words "speedy trial” appear in the title to CPL 30.30 and the section is often referred to as expressing a statutory right to a speedy trial, in both form and intention it articulates only the right of a defendant to a dismissal "where the people are not ready for trial”. Following the analysis in Franklin we are now obliged to conclude that court congestion before the District Attorney is ready for trial, as in the present case, is irrelevant and thus cannot excuse the District Attorney’s failure to be ready. While court congestion may prevent a trial, in no sense does it operate to prevent the District Attorney from being ready for trial. Nor does it do to point out that, in the face of known court congestion, it makes little practical sense to require the District Attorney to expend the effort (largely useless for any other purpose) just to enable him conscientiously to report to the court that he is ready for trial. Any futility on that account stems from the form in which the statute was enacted — expressing a command that the People must be ready for trial rather than that the defendant must be granted a trial within the prescribed period. This, however, inhered in the design of the Legislature in departing from the prompt trial rule of the Administrative Board of the Judicial Conference which had given rise to and was expressly superseded by CPL 30.30.

We therefore conclude that, inasmuch as the District Attorney did not demonstrate that he was ready for trial prior to March 19, 1976, over a year after the indictment, it was error to deny defendant’s motion to dismiss under CPL 30.30.

It remains to make a further comment on this branch of defendant’s appeal. Inasmuch as a defendant’s right to a CPL 30.30 dismissal has its origin solely in legislative enactment which is in no way expressive of or dependent on any constitutional right to speedy trial, it may be that a subsequent plea of guilty, even if conditionally expressed (short possibly of a court sanctioned agreement for preservation), should be held to have operated as a waiver of the statutory entitlement to dismissal. (Cf. People v Dodson, 48 NY2d 36, in which we drew a somewhat similar distinction, holding that a defendant’s plea waived his statutory previous prosecution claim but not his constitutional double jeopardy claim.) No such contention has been raised by the People in the present case, however, and accordingly this defendant has been afforded no opportunity to respond. For these reasons it would be inappropriate to base our disposition in this case on any such ground. (Cf. People v Lomax, 50 NY2d 351.)

Finally, it should be observed that in view of our resolution of this appeal in defendant’s favor under CPL 30.30, there is no occasion to consider his related claim that he was denied his constitutional right to speedy trial.

For the reasons stated, the order of the Appellate Division should be reversed, defendant’s conviction vacated and the indictment dismissed.

Jasen, J.

(dissenting). The clear intent of the Legislature in enacting CPL 30.30 was to require the District Attorney to be ready for trial within the time period prescribed by statute unless he is prevented from being ready for trial due to "delay occasioned by exceptional circumstances” or delay brought about by the defendant. Once the District Attorney indicates his readiness for trial within the delineated time periods, the statutory requirement is satisfied and we need not concern ourselves with the issue whether delay of trial due to court congestion is an "exceptional circumstance” within the meaning of CPL 30.30 (subd 4, par [g]).

There is no dispute that the District Attorney, with defendant’s consent, placed the case on the trial court’s "ready reserve calendar” within the period prescribed by statute. Thus, the requirement enunciated by this court in People v Hamilton (46 NY2d 932, 933) — that "the People must communicate readiness for trial to the court on the record when ready to proceed” — was, in effect, satisfied by the placement of the case on the criminal trial court’s ready reserve calendar. What more reliable expression of readiness should we require of the District Attorney than having a case calendared "ready” for trial and placed on the "ready reserve calendar” to follow other ready cases calendared earlier but not reached due to court congestion. Can there be any question that the operational effect of CPL 30.30 terminated when the District Attorney as well as the defendant "communicate[d] readiness for trial to the court” but, due to limited availability of courtrooms and judicial personnel, were unable to proceed immediately to trial. Having the case placed on the "ready reserve calendar” was a clear expression of readiness to the court on the part of the District Attorney to proceed. It is ludicrous to impose upon the District Attorney the additional responsibility of pulling a case from the ready calendar — itself reflecting the People’s readiness — only to place on the record a formal statement to that effect. In reality, such indication of readiness was already on the trial court’s record and no further indication of readiness should be required. To do so exalts form over substance.

For these reasons, I would affirm defendant’s felony conviction, upon his plea of guilty, of operating a motor vehicle under the influence of alcohol.

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

Order reversed, etc.

       See similar analysis of this section by Judge Denzer (Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 30.30, 1979-1980 Supp, p 52).


author: Wachtler, J.

text:
    The People of the State of New York, Appellant, v Anthony Provenzano and Harold Konigsberg, Respondents.
    Argued April 24, 1980;
    decided May 29, 1980

      POINTS OF COUNSEL

      Michael Kavanagh, District Attorney (Edward M. P. Greene of counsel), for appellant.
    I. The situation in the case at bar bears no semblance of similarity to the situation presented in the Branch case. (People v Branch, 46 NY2d 645.) II. The need for guidelines is demonstrated by the extreme extension of the statutory dimensions for disqualifying a juror for cause by the court below.

      Gerald L. Shargel, Maurice Edelbaum, John Pollok and Jay Goldberg for Anthony Provenzano, respondent.
    I. The court below correctly applied People v Branch to the trial court’s erroneous ruling which denied a challenge for cause against a prospective juror who was a political associate of the prosecutor. (People v Branch, 46 NY2d 645; Sims v United States, 405 F2d 1381; People v Culhane, 33 NY2d 90; Irvin v Dowd, 366 US 717.) II. The cross-examination of Ralph Picardo was so unduly restricted as to deprive the defense of the right of effective cross-examination. Moreover, the court below erred in failing and refusing to permit the defense to produce extrinsic evidence demonstrating that Picardo had committed an unrelated murder. (Pointer v Texas, 380 US 400; Douglas v Alabama, 380 US 415; People v Webster, 139 NY 73; Shepard v Parker, 36 NY 517; People v Kass, 25 NY2d 123; People v Alamo, 23 NY2d 630; People v Sorge, 301 NY 198; People v Fiori, 123 App Div 174; People v Smoot, 59 AD2d 898.) III. The court below erred when it rejected defendant’s offer of negative character evidence to impeach the credibility of John Nadratowski. Moreover, the court below unduly restricted the cross-examination of Nadratowski by refusing to allow him to be questioned with respect to immoral, vicious, criminal acts and evidence to show his bias and motive. (Carlson v Winterson, 147 NY 652; People v Loris, 131 App Div 127; People v Colantone, 243 NY 134; United States v Oliver, 492 F2d 943; United States v Parker, 447 F2d 826; People v Viger, 53 AD2d 991.) IV. The trial court’s charge on the statutory requirement of corroboration was insufficient; the court’s refusal to explain the application of the law to the facts is reversible error. (People v Gioia, 286 App Div 528; Krulewitch v United States, 336 US 440; People v Devaul, 54 AD2d 1038; People v Nitzberg, 287 NY 183; People v Dixon, 231 NY 111; People v Rossi, 11 NY2d 379; People v Clayborn, 50 AD2d 952; People v Coonan, 64 AD2d 541; People v Elbroch, 250 App Div 583; People v Singleteary, 54 AD2d 1088.) V. The prosecutor’s conduct in this case, including his comments on summation, deprived defendant of his constitutionally guaranteed right to a fair trial. (People v Carborano, 301 NY 39; People v Ashwal, 39 NY2d 105; People v Garcia, 40 AD2d 983; People v Slaughter, 28 AD2d 1082; People v Douglas, 36 AD2d 994; People v Lovello, 1 NY2d 436; People v Morales, 53 AD2d 517; People v Cleague, 22 NY2d 363; Berger v United States, 295 US 78; People v Rogers, 59 AD2d 916.) VI. The entire jury selection process in this case was tainted; Provenzano was deprived of his right to an unbiased jury. (Estes v Texas, 381 US 532; Sheppard v Maxwell, 384 US 333; Chambers v Florida, 309 US 227; People v Di Piazza, 24 NY2d 342; Marshall v United States, 360 US 310; People v Coleman, 43 NY2d 222; United States v Wade, 388 US 218.)

      Ivan S. Fisher and Joel B. Rudin for Harold Konigsberg, respondent.
    I. Konigsberg was denied his constitutional and common-law right to test the credibility of John Nadratowski, a crucial prosecution witness. (People v Kress, 284 NY 452; United States v Nevitt, 563 F2d 406; People v Sorge, 301 NY 198; People v Sandoval, 34 NY2d 371; People v Ocasio, 47 NY2d 55; La Beau v People, 34 NY 222; People v Allen, 67 AD2d 558, 47 NY2d 1013; People v Smoot, 59 AD2d 898; People v Summers, 49 AD2d 611; People v Donovan, 35 AD2d 934.) II. The trial court erred in refusing to charge the jury that it could not convict Konigsberg if it did not believe Nadratowski, the People’s sole corroborative witness. (People v Horton, 61 AD2d 1082; People v Ohlstein, 54 AD2d 109; People v Wasserman, 46 AD2d 915; People v Ice, 265 App Div 46; People v Fiore, 12 NY2d 188; People v Fox, 38 AD2d 767; People v Cline, 271 App Div 988; People v Hamm, 140 Misc 335; People v Reddy, 261 NY 479; People v Rivera, 60 AD2d 852; People v Coonan, 64 AD2d 541; People v Baker, 23 NY2d 307; People v Goldfeld, 60 AD2d 1; People v Horton, 19 AD2d 80, 18 NY2d 355.)
   OPINION OF THE COURT

Wachtler, J.

In June of 1961, Anthony Castellito, a New Jersey union official, disappeared. Fifteen years later, although Castellito’s body was never discovered, Anthony Provenzano and Harold Konigsberg were charged with his murder. They were tried jointly before a jury and were convicted of murder in the first degree (former Penal Law, § 1044) upon proof consisting of circumstantial evidence, admissions, and accomplice testimony.

On appeal the Appellate Division reversed the conviction, on the law, and ordered a new trial as to both defendants. While numerous grounds were urged by the defendants as a basis for reversal in the Appellate Division, that court reached but one — the Trial Judge’s refusal to excuse an individual juror, Theresa E. Thomas, for cause.

The record discloses that Mrs. Thomas had met the trial prosecutor, Michael Kavanagh, at several political rallies and that both were members of the same local political club. She revealed that she had campaigned for the prosecutor in his 1977 race for election as Ulster County District Attorney; however, her campaign effort was for her party’s ticket, on which Kavanagh ran, rather than a personal effort for the District Attorney alone. Although she readily admitted that at the time of the campaign she believed the trial prosecutor to be the best qualified for the office of District Attorney, at no time did she indicate any social relationship between them.

The trial court refused a defense request to dismiss Mrs. Thomas as a juror "for cause”. The defense thereupon struck her from the panel by exercise of a peremptory challenge. Although at that point the defense had peremptory challenges remaining to it, those peremptory challenges were exhausted before completion of the jury selection process thus if the denial of the challenge for cause was error, it was prejudicial and requires reversal (CPL 270.20, subd 2).

The question on this appeal is whether it can be said, as a matter of law, that the relationship testified to was "likely to preclude” (CPL 270, subd 1, par [c]) the potential juror from giving an impartial verdict, rendering reversible error the failure to grant a challenge "for cause”.

The Appellate Division found the relationship in question to be essentially indistinguishable from that which we found objectionable in People v Branch (46 NY2d 645) and, as previously noted and without comment on the defendants’ other assignments of error, reversed the convictions. The People appeal by leave of a Judge of this court.

CPL 270.20 (subd 1, par [c]) specifies certain relations which, if existing between a potential juror and the defendant, victim, a prospective witness, or attorneys for either the prosecution or defense, will automatically bar the potential juror from service in that case. The last clause of subdivision (c) disqualifies from jury service anyone who "bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict”. In the case of any of the relationships covered by subdivision (c) an expurgatory oath is not available to purge the taint of bias implied by the law from the existence of the relationship (People v Branch, supra, at p 649).

People v Branch concerned a juror who was a part-time policeman. Not only did he have professional contacts with the District Attorney’s office, but he had also worked closely and socialized with the very attorney who prosecuted the case in which the officer had been called as juror. Emphasizing the direct and personal nature of the contacts this court held that that relationship, as a matter of law, was likely to preclude the juror from rendering an impartial verdict (Branch, supra, at p 651).

By contrast, the facts of the case at bar show little more than a nodding acquaintance coupled with a belief by the juror that the District Attorney was the best qualified candidate for that post. Neither separately nor in combination do these factors amount to a relationship of which it could be said that the impact on the mind of the average juror would be likely to preclude the juror from rendering an impartial verdict. Merely generalized support for the candidates of one party or attendance at political rallies does not signal a relationship which would preclude fairness on the part of a prospective juror. Of course, direct partisan support in an individual campaign effort might impart a different hue to the relationship — but that was not the case here.

On argument before our court the District Attorney readily conceded that if these circumstances were repeated he would consent to the challenge. Indeed, in retrospect it is probable that the Trial Judge would have "lean[ed] toward disqualifying a prospective juror of dubious impartiality, rather than testing the bounds of discretion by permitting such a juror to serve” (People v Branch, supra, at p 651). This, of course, would have been the better course in the instant case, but on the facts presented here we cannot say, as a matter of law, that the failure to do so was error. We therefore reverse.

However, as the Appellate Division has not yet had an opportunity to pass on the other arguments of the defendants or to exercise its powers of discretion this matter should be remitted for further proceedings (see People v Berkowitz, 50 NY2d 333).

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

Order reversed and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.


author: Per Curiam.

text:
    In the Matter of the Arbitration between the Board of Education of Middle Island Central School District No. 12, Respondent, and Middle Island Teachers Association et al., Appellants.
    Argued April 25, 1980;
    decided May 29, 1980

      POINTS OF COUNSEL

      James R. Sandner and Jams Levart Barquist for appellants.
    1. There are no public policy considerations prohibiting arbitration of this dispute. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411; Matter of Associated Gen. Contrs. [Savin Bros.], 36 NY2d 957; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122.) II. The agreement to arbitrate is broad and clearly encompasses the instant dispute. III. As the requirements of the Liverpool decision have been met, the merits of the grievance should be left to the arbitration forum and not resolved by the courts. (Matter of Board of Educ. v United Federation of Teachers, Local No. 2, AFT, AFL-CIO, 46 NY2d 1018; Board of Educ. v Chautauqua Cent. School Teachers Assn., 41 AD2d 47.)

      John H. Gross for respondent.
    I. The decision of the court below in granting a stay of arbitration upon public policy grounds was proper and should be sustained. (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Morris Cent. School Dist. Bd. of Educ. v Morris Educ. Assn., 54 AD2d 1044, 42 NY2d 804; Clifton-Fine Cent. School Dist. Bd. of Educ. v Wisner, 59 AD2d 50, 43 NY2d 643; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Conte v Board of Educ., 58 AD2d 219; Board of Educ. v Chautauqua Cent. School Teachers Assn., 41 AD2d 47; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411.) II. The demand for arbitration does not present an arbitrable issue since the parties have not agreed to arbitrate the denial of tenure for nonclassroom acts. Hence, the arbitration should be permanently stayed. (Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 66 AD2d 895; Matter of Board of Educ. v West Babylon Teachers Assn., 60 AD2d 577.)
   OPINION OF THE COURT

Per Curiam.

At issue is whether a probationary teacher, denied tenure for alleged professional incompetence in the performance of his nonclassroom duties, has a right to arbitrate alleged breaches of contract evaluation procedures specifically referable to classroom performance. The Appellate Division has stayed the arbitration noting that "the demand for arbitration avoids dealing with the fact that irrespective of respondent [teacher’s] classroom performance — he may have been an outstanding teacher — the school board denied tenure for unrelated, nonarbitrable reasons.”

There is no question, and both courts below agree, that the demand states a basis for arbitration. Although the decision whether or not to grant tenure is not within the permissible area of negotiation in the public employee sector, the performance of a probationary teacher preliminary to a tenure determination is (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).

In addition, the two-tier analysis established in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.) (42 NY2d 509) would indicate that the reference to arbitration is authorized under the Taylor Law (Civil Service Law, art 14) and that the subject matter of the dispute is encompassed by the broad arbitration clause contained in the agreement.

Nevertheless the school board urges that the arbitration be stayed because the results of that proceeding would be violative of public policy. It fears, as does the Appellate Division, that the remedy fashioned by an arbitrator for a violation of the evaluation procedures would prevent the school board from exercising its authority to deny tenure. This is not a valid reason to stay the arbitration.

Even though the board has the right to deny tenure to a probationary teacher without an explanation, the bargained for right to procedural steps preliminary to the tenure determination cannot be considered a nullity (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., supra, p 778; see, also, Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167). The courts should not, by staying arbitration, “foreclose any remedy for alleged violations of procedural guarantees as well as substantive rights said to be afforded under the contract” (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 415).

The school board is bound by the agreement it negotiated and signed — an agreement which requires certain teacher evaluation procedures. Its failure to perform as required is appropriately claimed as a grievance under the terms of the contract and may be submitted to arbitration. The procedural aspect of the contract is discrete from the denial of tenure and should be so treated.

The judgment of the Appellate Division should be reversed, with costs, and the order of Special Term reinstated.

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

Order reversed, with costs, and the judgment of Supreme Court, Suffolk County, reinstated.


author: Jones, J. Chief Judge Cooke

text:
    Emil Landau et al., Appellants, v Joseph Percacciolo et al., Respondents.
    Argued April 23, 1980;
    decided June 3, 1980

      POINTS OF COUNSEL

      Bernard Gartlir for appellants.
    I. Plaintiffs’ contract is not void under article 18 of the General Municipal Law. (Patrolman’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205; Rose v Eichhorst, 42 NY2d 92; Matter of Albano v Kirby, 36 NY2d 526; Caben v Boyland, 1 NY2d 8; New York State Bridge Auth. v Moore, 299 NY 410; Matter of Smith [Great Amer. Ins. Co.], 29 NY2d 116; Bright Homes v Wright, 8 NY2d 157; Fontheim v Third Ave. Ry. Co., 281 NY 392; Matter of Palmer v Spaulding, 299 NY 368; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293.) II. Plaintiff’s contract is not void under "public policy”. (Farrington v Pinckney, 1 NY2d 74; Messersmith v American Fid. Co., 232 NY 161; Waddey v Waddey, 290 NY 251; Meltzer v Koenigsberg, 302 NY 523; Patrolman’s Benevolent Assn. of City of N. Y. v City

      of New York, 41 NY2d 205; Rankin v Shanker, 23 NY2d 111; Sexauer & Lemke v Burke & Sons Co., 228 NY 341; Bright Homes v Wright, 8 NY2d 157; Matter of Erie County Agric. Soc. v Cluchey, 40 NY2d 194.) III. The county failed to meet its burden of proof to establish its alleged defense of fraud. (Low v State of New York, 281 App Div 309, 305 NY 913; Rudman v Cowles Communications, 30 NY2d 1; Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403; Jones v Title Guar. & Trust Co., 277 NY 415.) IV. Plaintiffs are entitled to specific performance of the contract. (Bauman v Pinckney, 118 NY 604; Morgan & Brother Manhattan Stor. Co. v Balin, 47 AD2d 85, 39 NY2d 848.)

      Andrew W. Tully, Jr., for respondents.
    I. The contract is void and unenforceable under article 18 of the General Municipal Law. (Village of Fort Edward v Fish, 156 NY 363; Civil Serv. Forum v New York City Tr. Auth., 4 AD2d 117; City of Buffalo v Stevenson, 207 NY 258; Donovan v City of New York, 33 NY 290; Supervisors of Rensselaer County v Bates, 17 NY 242.) II. The contract contravenes public policy in its violations of the intent and purpose of article 18 of the General Municipal Law. (Rella v National City Bank of N. Y., 240 App Div 513; Veazey v Allen, 173 NY 359; Sayres v Decker Auto. Co., 239 NY 73; Flegenheimer v Brogan, 284 NY 268; Carr v Hay, 2 NY2d 185; McConnell v Commonwealth Pictures Corp., 7 NY2d 465; Hoe v Sanborn, 21 NY 552; Kountze v Kennedy, 147 NY 124; Peabody, Jr., & Co. v Travelers Ins. Co., 240 NY 511; Matthews v Schusheim, 42 AD2d 217, 35 NY2d 686.)
   OPINION OF THE COURT

Jones, J.

One who contracts with a municipality knowing that an employee of the governmental unit has an interest in the contract and that the employee has not disclosed that interest as required by section 803 of the General Municipal Law may not enforce performance of the agreement over the objection of the municipality.

Plaintiffs seek specific performance by the County of Putnam of a contract for the purchase by it from them of a 50-acre area of land to be used for garbage disposal and a solid waste recycling plant. The contract was executed on March 25, 1975 pursuant to approval by the county board of supervisors given that morning. Prior thereto, the Town of Carmel, within the county, had been directed by the State Department of Environmental Conservation to cease using its then garbage disposal site by March 31, 1975. Thomas Bergin, the town supervisor, searching for a replacement site, had inspected plaintiffs’ land on which stood a real estate broker’s "for sale” sign inviting inquiries to Frank Barbarita, the broker. Bergin contacted Barbarita, who arranged a meeting with plaintiff Landau in February, 1975 and, after two such meetings at which the three were present, Bergin and Landau negotiated an agreement for the county’s purchase of 50 acres of plaintiffs’ land at a price of $14,000 an acre, which was evidenced by the contract signed on March 25, 1975. Although no discussion as to a broker’s fee had preceded the contract signing, both plaintiffs and Barbarita expected that a fee would be due the broker.

At the time of the negotiations and contract execution Barbarita held a part-time salaried position with the County of Putnam as County Director of Civil Defense. With the position he also held the titles of "Federal and State Aid Coordinator” and "Engineering Coordinator”. Plaintiffs knew that Barbarita was a county employee. On the day preceding the signing of the contract the broker raised a question with Supervisor Bergin and County Attorney Winnie whether his receipt of a commission as an employee might be embarrassing. When told that it might, Barbarita stated that he could rely on plaintiffs’ recognition of their obligation to him for a broker’s fee and instructed Winnie, who was preparing the contract, that it could be drawn, as it subsequently was, with a recital that "no broker [was] in any way concerned with the transfer of this realty”. In furtherance of the intent to keep secret the fact that a fee would be received by Barbarita, no public disclosure of his role in the transaction was made prior to or at the time of the contract’s execution.

For a variety of reasons, not now pertinent, a closing on the contract had not yet taken place by July 7 and July 8, 1976 when, at a hearing being conducted by the State Investigation Commission, the participation and involvement of Barbarita in the sale came to public light. A week later the county board of supervisors passed resolutions rescinding their prior action with respect to the purchase and declaring the contract void. Plaintiffs then instituted this specific performance action.

A judgment recovered by them at Trial Term of Supreme Court was reversed by the Appellate Division on two grounds —that the broker-county employee Barbarita’s interest in the contract was a prohibited interest which nullified the contract under section 804 of the General Municipal Law and that enforcement of the contract against the county would contravene public policy in view of Barbarita’s failure to make written public disclosure of his interest in the contract as required by section 803 of the General Municipal Law, coupled with plaintiffs’ knowledge of and assistance in such statutory violation. We now affirm the disposition at the Appellate Division.

In our view section 804 of the General Municipal Law which is a part of article 18 relating to conflicts of interest of municipal officers and employees, is not applicable to the present case. We read the language of that section more narrowly than did the Appellate Division. The section makes null and void any municipal contract "in which there is an interest prohibited by this article”. The only prohibition set forth in the article is that found in section 801, which provides that no municipal officer or employee shall have an interest in a contract with his municipality if he has the power or duty to negotiate or to approve the contract or payments thereunder, to audit bills or claims under the contract, or to appoint an officer or employee with any such authority. As to contracts in which such an interest exists, section 804 of the General Municipal Law works a statutory nullification, thereby providing for municipal taxpayers the protection of a bar to any waiver of the prohibited conflicts of interest through consent of the governing body or authority of the municipality (such as may be effected in the private sector by a principal with respect to an agent who participates in the making of a contract on the principal’s behalf). Because Barbarita, the county civil defense director, lacked any authority on behalf of the County of Putnam to negotiate or approve the contract for the purchase of plaintiffs’ land, there was here present no prohibited interest resulting in nullity under section 804. To read section 803, the section mandating disclosure, as impliedly prohibiting any such interest not so disclosed, and thus to invoke the consequence of nullification of the subject contract imposed by section 804, by interpretation would extend section 804 beyond its intended scope. The Legislature was particular in its identification of prohibited interests in section 801; its failure to have included there interests undisclosed in violation of section 803, when such inclusion could so facilely have been made, suggests strongly that the inclusion should not be accomplished by inference.

It does not follow, however, as plaintiffs contend, that nondisclosure of an interest in a municipal contract by an officer or employee which falls short of the prohibition of section 801 is without significance insofar as enforcement of the agreement by the other party to the contract is concerned. It is true that a sanction against the offending public employee for nondisclosure is provided by section 805 of the General Municipal Law which makes any knowing and willful nondisclosing municipal officer or employee guilty of a misdemeanor, and that the municipality may have other practical and civil remedies against its offending employee. That is not the end of the matter however where, as here, the nonmunicipal party to the contract seeking to compel specific performance was aware of the undisclosed interest of the municipal employee and actively participated in the nondisclosure.

Section 803 of the General Municipal Law is clear and explicit in imposing on a municipal officer or employee an obligation to make written public disclosure to the governing body of the municipality of an interest held or to be held by him in an actual or proposed contract with the municipality, which notice of disclosure must be made a part of the official record of proceedings of the body. The requirement extends to all such employees; it is not limited to those who have a part in the negotiation or approval of the contract.

Plaintiffs were chargeable with notice of the duty of disclosure of his expected broker’s fee which rested on the county’s employee Barbarita. They knew that the duty was being violated and in fact participated in the concealment by executing the contract with its false statement that no broker was involved in the transaction. In these circumstances plaintiffs could not succeed in this action to compel performance of the contract by the county without frustrating the first expressed purpose of the enactment of article 18 of the General Municipal Law — i.e., "to protect the public from municipal contracts influenced by avaricious officers” (L 1964, ch 946, § 1). That consequence itself militates against enforcement of the contract (United States v Mississippi Val. Co., 364 US 520, 563). There is no question that the interest Barbarita would have in the contract between plaintiffs and the county was one which fell within the scope of section 803. Had there been compliance with the section — rather than the concealment accomplished by Barbarita and plaintiffs — the Putnam County Board of Supervisors would have been aware, before its approval of the contract, of the fact that a county employee would receive a portion of the consideration which it was agreeing to pay to plaintiffs; from the fact of its rescission of approval almost immediately after revelation of Barbarita’s part, an inference is available that, had the county board known of it, it would not have authorized the contract under the circumstances as they then existed. At the very least, the board was entitled to the information as to Barbarita’s interest so that it might make its decision as to acceptance or rejection of the agreement with knowledge of the true facts, rather than under the misimpression, created by the absence of any disclosure, that no county officer or employee would benefit from the contract. Plaintiffs’ knowledge of and participation in Barbarita’s failure to fulfill the obligation imposed on him by section 803 infected the rights created in them by the agreement and serves to bar their petition for the equitable remedy of specific performance.

This result does no more than compel respect for the obligation of loyalty due from an agent to his principal. The agent — here, Barbarita — may not entertain an interest adverse to that of his principal nor may he obtain an advantage for himself from a transaction entered into by his principal, unless with the knowledge and consent of the latter. While these principles are generally stated with respect to one who acts as agent for the principal in the negotiation of the contract (Manhattan Life Ins. Co. v Forty-Second St. & Grand St. Ferry R. R. Co., 139 NY 146, 151; cf. Restatement, Agency 2d, § 387), they apply no less to an agent-employee of the principal who is acting on behalf of the party with whom the principal is contracting; the obligation to place the principal’s interest foremost springs not from the fact of the agent’s participation in the particular transaction but from the existing relationship of principal and agent. In this case plaintiffs were fully aware that, if the sale to the county and consequent payment of fee to the broker were to be completed as anticipated, Barbarita would be violating his duty not to secure personal gain from the transaction with his principal. Knowledge by the latter of the agent’s interest, which would be a prerequisite to possible consent by the board of supervisors which might have validated the broker’s interest, was effectively precluded by Barbarita’s failure to disclose in the form and to the body specified in the statutory provision for disclosure. Plaintiffs may not enjoy the benefits of the transaction which, to their knowledge and through their assistance, incorporated Barbarita’s violation both of his fiduciary duty as an agent of the county not to benefit from his principal’s contract and of his statutory duty of disclosure of his prospective interest in the contract.

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

Chief Judge Cooke

(concurring). While I join in the ultimate disposition of this appeal, I would affirm for the reasons stated by Mr. Justice James D. Hopkins at the Appellate Division (66 AD2d 80). In my view, Barbarita was under an affirmative duty to disclose his interest in the contract in writing to the Putnam County Board of Supervisors (General Municipal Law, § 803). Until that interest was disclosed, it was indeed an interest prohibited by article 18 of the General Municipal Law, thereby rendering the contract, willfully executed by plaintiffs with knowledge of Barbarita’s undisclosed interest, "null, void and wholly unenforceable” (General Municipal Law, § 804).

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

Order affirmed.

      . "§ 804. Contracts void.
      "Any contract willfully entered into by or with a municipality in which there is an interest prohibited by this article shall be null, void and wholly unenforceable.”

      . "§ 803. Disclosure of interest.
      "1. Any municipal officer or employee who has, will have, or later acquires an interest in any actual or proposed contract with the municipality of which he is an officer or employee, shall publicly disclose the nature and extent of such interest in writing to the governing body thereof as soon as he has knowledge of such actual or prospective interest. Such written disclosure shall be made part of and set forth in the official record of the proceedings of such body.”

      . We do not consider or intimate any views as to what the result would have been if plaintiffs had had no knowledge of the statutory violation.

      . Section 800 of the General Municipal Law (definitions) provides: "3. 'Interest’ means a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves.”