text:
    Ettore Tomassi et al., Respondents, v Town of Union, Appellant. Ettore Tomassi et al., Respondents, v Louis Forbidussi et al., Appellants. Robert Corwin et al., Respondents, v Margaret Tanzini et al., Appellants. Robert Corwin et al., Respondents, v Louis Forbidussi, Appellant. Louis Forbidussi et al., Plaintiffs, v Margaret Tanzini et al., Defendants.
    Argued October 24, 1978;
    decided December 7, 1978.

      POINTS OF COUNSEL

      Thomas F. O’Connor for Louis Forbidussi, appellant.
    I. If this court determines that there was reversible error against one defendant, all defendants are entitled to a new trial. (Dole v Dow Chem. Co., 30 NY2d 143; Ward v Iroquois Gas Corp., 258 NY 124; Stein v Whitehead, 40 AD2d 89; Estate of Canale
      v Binghamton Amusement Co., 45 AD2d 424, 37 NY2d 875.) II. The court erred in denying counsel for defendant-appellant Forbidussi the right to make opening and closing statements. (Vidal v Sheffield Farms Co., 208 Misc 438; Gibbs v Sokol, 216 App Div 260; Tisdale v President, Managers & Co. of D. & H. Canal Co., 116 NY 416; Zemliansky v United Parcel Serv., 175 Misc 829; Lyman v Fidelity & Cas. Co., 65 App Div 27; Shea v Benjamin, 275 App Div 1003; Denton v Koshfer, 201 Misc 394; Martin v Marshall, 25 AD2d 594.) III. The court erred in denying a request to charge that a driver was entitled to assume that another driver would drive on the right-hand side of the road. (Ward v Clark, 232 NY 195; Walter v State of New York, 187 Misc 1034; Lee v City Brewing Corp., 279 NY 380; Crombie v O’Brien, 178 App Div 807; McDonald v Central School Dist. No. 3, 179 Misc 333, 264 App Div 943, 289 NY 800.)

      David M. Gouldin for Margaret Tanzini and another, appellants.
    I. It was reversible error to permit the prejudicial, speculative testimony of Dr. Barron regarding possible future regression of plaintiff Corwin’s back injury. (MCGrath v Irving, 24 AD2d 236; Mamarella v Consolidated Edison Co. of N. Y., 44 AD2d 571.) II. The comments by counsel for Tomassi which invited speculation, and the references by counsel for Corwin to newspaper articles and thinly veiled unit of time arguments were improper and prejudicial as evidenced by the grossly excessive verdicts rendered. (Paley v Brust, 21 AD2d 758; Jacobs v Peress, 24 AD2d 746.) III. Since the advent of proportionate liability, the rights and responsibilities of joint tort-feasors have been so inextricably intertwined that a new trial for one warrants a new trial for all. (Dole v Dow Chem Co., 30 NY2d 143.)

      Brian R. Wright for Town of Union, appellant.
    I. As a matter of law the record demonstrates no substantial evidence to support the jury verdict of negligence against the Town of Union. (Ellis v State of New York, 12 NY2d 770; Kinne v State of New York, 8 AD2d 903, 8 NY2d 1068; Proctor v Town of Colonie, 8 NY2d 952; Shaffer v Coleman, 37 AD2d 646; Gleich v Volpe, 32 NY2d 517; Weiss v Fote, 7 NY2d 579; Schoonmaker v State of New York, 32 AD2d 1005; Kaufman v State of New York, 27 AD2d 587; Warda v State of New York, 45 Misc 2d 385; Jacobs v State of New York, 276 App Div 452; McCauley v State of New York, 23 Misc 2d 925, 9 AD2d 488, 8 NY2d 938; Lane v Town of Hancock, 142 NY 510; Hubbell v

      State of New York, 104 NY 434.) II. As a matter of law, the sole proximate cause of the accident was the inattention of the two drivers. (Murray v State of New York, 38 NY2d 782; Stuart-Bullock v State of New York, 38 AD2d 626, 33 NY2d 418; Agius v State of New York, 50 AD2d 1049; Ellis v State of New York, 16 AD2d 727, 12 NY2d 770; Kinne v State of New York, 8 AD2d 903, 8 NY2d 1068; Bezio v County of Clinton, 6 AD2d 963; Goes v State of New York, 46 AD2d 697; Darling v State of New York, 16 NY2d 907; Cole v New York Racing Assn., 24 AD2d 993, 17 NY2d 761; Bolm v Triumph Corp., 33 NY2d 151; Spier v Barker, 35 NY2d 444.) III. As pointed out by the dissenting opinion of two of the Justices of the court below, Third Department, the Town of Union is entitled to a new trial based upon the prejudicial effect of evidence of a prior irrelevant accident. (Annino v City of Utica, 276 NY 192; Kaplan v City of New York, 6 AD2d 489; Jasinski v New York Cent. R. R., 21 AD2d 456; Flansburg v Town of Elbridge, 205 NY 423; Cross v Cross, 108 NY 628; Tryon v Willbank, 234 App Div 335.)

      Remo A. Allio and Harold Boreanez for Robert Corwin and another, respondents.
    I. The facts found by the jury with respect to the negligence of defendants (Forbidussi, Tanzini and the Town of Union) were supported by the weight of the evidence and the apportionment of liability was proper. II. The Town of Union was properly held liable for a portion of the damages. (Weiss v Fote, 7 NY2d 579; Annino v City of Utica, 276 NY 192; Schoonmaker v State of New York, 32 AD2d 1005; Kaufman v State of New York, 27 AD2d 587; Gleich v Volpe, 32 NY2d 517; Pratt v Robinson, 45 AD2d 641; Ellis v State of New York, 12 NY2d 770; Kinne v State of New York, 8 NY2d 1068; Hulett v State of New York, 4 AD2d 806; Zalewski v State of New York, 53 AD2d 781.) III. There was no error in admitting evidence as to the prior accident. (Nappi v Falcon Truck Renting Corp., 286 App Div 123, 1 NY2d 750; People v Miller, 50 AD2d 757; People ex rel. Packwood v Riley, 232 NY 283; People v Barberi, 149 NY 256; People v Crimmins, 36 NY2d 230; People v Kingston, 8 NY2d 384; Evans v Newark-Wayne Community Hosp., 35 AD2d 1071.) IV. The testimony of Dr. Barron was based on reasonable medical certainty. (McGrath v Irving, 24 AD2d 236.) V. Plaintiff Corwin’s summation was proper and defendant’s objections were not timely. (Bagully v Morning Jounal Assn., 38 App Div 522; Nelson v Forty-Second St., Manhattenville & St. Nicholas Ave.

      Ry. Co., 55 Misc 373; Cattano v Metropolitan St. Ry. Co., 173 NY 565; Rice v Ninacs, 34 AD2d 388; Carroll v Roman Catholic Diocese of Rockville Centre, 26 AD2d 552, 19 NY2d 658; Jacobs v Peress, 24 AD2d 746; Paley v Brust, 21 AD2d 758; Bischert v Limousine Rental Serv., 33 AD2d 355.) VI. There was no error in the refusal of the trial court to allow counsel for defendant Forbidussi to make opening and closing arguments. (People v Cook, 8 NY 67; Martin v Marshall, 25 AD2d 594.) VII. There was no error in the refusal to charge that a motorist was entitled to assume that another driver would drive on the right-hand side of the road. (Wallace v D'Aprile, 221 App Div 402; Blixton v MacNary, 23 AD2d 573; Moses v Bliss, 252 App Div 909.)

      Vincent P. Vetrano for Ettore Tomassi and another, respondents. I.
    The jury verdict of negligence against the Town of Union was supported by substantial evidence. (Lue v English, 44 NY2d 654; Russell v State of New York, 268 App Div 585; Brown v State of New York, 284 App Div 1014; Ellis v State of New York, 16 AD2d 727, 12 NY2d 770; Kinne v State of New York, 8 AD2d 903, 8 NY2d 1068; Shaffer v Coleman, 37 AD2d 646; Proctor v Town of Colonie, 8 NY2d 952; Weiss v Fote, 7 NY2d 579; Zalewski v State of New York, 53 AD2d 781; Stern v International Ry. Co., 220 NY 284; Collett v Mayor, City of N. Y., 51 App Div 394.) II. The jury verdict that the accident and the injuries were caused by the concurrent negligence of all three defendants was supported by the evidence. (Agius v State of New York, 50 AD2d 1049; Stuart-Bullock v State of New York, 38 AD2d 626, 33 NY2d 418; Boyce Motor Lines v State of New York, 280 App Div 693; Murray v State of New York, 38 NY2d 782; Lyle v State of New York, 44 AD2d 239; Tortora v State of New York, 269 NY 167; Bolm v Triumph Corp., 33 NY2d 151.) III. There was no prejudicial error to the Town of Union in admitting evidence of the prior accident. IV. There was no error in the refusal of the trial court to allow counsel for defendant-appellant Forbidussi to make opening and closing arguments. (People v Cook, 8 NY 67; Martin v Marshall, 25 AD2d 594, 18 NY2d 579.) V. There was no error in the refusal to charge that a motorist was entitled to assume that another driver would drive on the right-hand side of the road. (Wallace v D'Aprile, 221 App Div 402; Blixton v Mac-Nary, 23 AD2d 573; Moses v Bliss, 252 App Div 909; Patenaude v Fortin, 4 AD2d 410.) VI. Comments on summation by plaintiffs’ counsel were not improper or prejudicial. (Carroll v

      Roman Catholic Diocese of Rockville Center, 26 AD2d 552, 19 NY2d 658.) VII. If this court finds reversible error as to one defendant, the other defendants are not entitled to a new trial on all of the issues. (Gannon Personnel Agency v City of New York, 57 AD2d 538.)
   OPINION OF THE COURT

Cooke, J.

Buffalo Street is a lightly traveled, east-west, two-lane roadway traversing a sparsely populated section of the Town of Union in Broome County. The macadam pavement is approximately 22 feet wide, with a shallow storm-water drainage ditch flanking both sides. On its southerly side, a driveway, built over a 15-inch sluice pipe in the drainage ditch, connects Buffalo Street with the Serowik home. The Serowiks had erected a stone wall and earthen embankment immediately adjacent to the drainage ditch and sluice pipe. An attractive flower garden adorned the embankment.

On the afternoon of September 24, 1972, the flowers were in bloom. It had rained earlier in the day but visibility was good although the roadway was wet. An automobile, owned by Alfred Tanzini and driven by his wife, was proceeding in a Westerly direction along Buffalo Street. By her own admission, Mrs. Tanzini was not paying careful attention to her driving. She had just realized that she had driven past an intersecting road leading to her destination when her attention was drawn and affixed to the flower bed on the Serowik property. At the same time, an automobile owned and driven by Louis Forbidussi with passengers Ettore Tomassi and Robert Corwin was proceeding easterly on Buffalo Street at what was, according to one witness, an excessive rate of speed. By the time Mrs. Tanzini saw the approaching vehicle there was little she could do to avoid the impending collision. Forbidussi, too, took no defensive steps until impact was unavoidable, although he had the Tanzini vehicle in sight within ample time to avoid the accident. The impact from the resulting collision in the eastbound lane of the roadway forced the Forbidussi vehicle into the ditch where it hit the right bank. From there the car struck the stone wall adjacent to the ditch, careened into the sluice pipe and came to rest against the driveway and pipe.

A jury found in favor of plaintiffs Tomassi and Corwin, apportioning 50% of the liability against Tanzini, 25% against Forbidussi and 25% against the Town of Union. The single issue we address on this appeal is whether the town may be held to answer in damages for permitting the ditch to exist on the sides of Buffalo Street. The theory of plaintiffs’ case against the town is that the construction of the ditch in such close proximity to the pavement constituted a hazard to motorists which was the cause of their injuries. Viewing the evidence, as we must, in a light most favorable to plaintiffs (Commisso v Meeker, 8 NY2d 109), we hold that there are no grounds upon which the liability of the town may be properly predicated.

A municipality, of course, is not an insurer of the safety of its roadways. The design, construction and maintenance of public highways is entrusted to the sound discretion of municipal authorities and so long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied (Annino v City of Utica, 276 NY 192, 196; Boyce Motor Lines v State of New York, 280 App Div 693, 696, affd 306 NY 801). The liability of a municipality begins and ends with the fulfillment of its duty to construct and maintain its highways in a reasonably safe condition, taking into account such factors as the traffic conditions apprehended, the terrain encountered, fiscal practicality and a host of other criteria (see, generally, Liability of Governmental Entity or Public Officer for Personal Injury or Damages Arising out of Vehicular Accident Due to Negligent or Defective Design of a Highway, Ann., 45 ALR3d 875, and cases cited therein; cf. Weiss v Fote, 7 NY2d 579).

Undoubtedly, certain risks are unavoidable. Especially in rural locales, such objects as utility poles, drainage ditches, culverts, trees and shrubbery are often in close proximity to the traveled right of way (see Hayes v Malkan, 26 NY2d 295, 297). But for the careful driver, the placement of these items near the pavement creates no unreasonable danger. Often they simply enhance the beauty of the highway, prevent the flooding of roadways and serve the needs of area residents. This paved roadway, 22 feet in width, is more than adequate for safe public passage, and travel beyond those limits is neither contemplated nor foreseeable (Kinne v State of New York, 8 AD2d 903, affd 8 NY2d 1068; Proctor v Town of Colonie, 6 AD2d 967, affd 8 NY2d 952). To be sure, any public roadway, no matter how careful its design and construction, can be made safer. Indeed, plaintiffs’ expert witness testified that the town should have posted signs warning motorists of the drainage ditch, painted center lines on the roadway and eliminated the ditch by installing shoulders. We decline, however, to impose a duty upon the town which transcends that imposed by reasonable care and foresight — resulting in conversion of the town into an insurer of the safety of its highways.

Moreover, the steps the town could have taken to safeguard against unforeseeable risks have no bearing on the question of its liability to these plaintiffs. Quite simply, even if it can be said that the Town of Union was negligent in the design, construction or maintenance of Buffalo Street, the record is devoid of any evidence establishing that such negligence was the proximate or concurring cause of the accident. On the contrary, the evidence most favorable to plaintiffs’ theory of liability compels the conclusion that the sole cause of the accident was the negligence of Forbidussi and Tanzini, which the prevailing weather and visibility conditions at the time of the accident served but to enhance. Had either driver been cognizant of approaching traffic or have taken even minimal action to avoid the collision there would have been no accident. Neither would the adoption of the recommendations of plaintiffs’ expert witness serve any useful purpose since it is clear beyond peradventure that the accident was caused by the failure of Forbidussi and Tanzini to observe the rules of the road (Hicks v State of New York, 4 NY2d 1, 7-8; Applebee v State of New York, 308 NY 502, 507-508; Ellis v State of New York, 16 AD2d 727, affd 12 NY2d 770; Kinne v State of New York, 8 AD2d 903, affd 8 NY2d 1068, supra; Proctor v Town of Colonie, 6 AD2d 967, affd 8 NY2d 952, supra). In sum, there is nothing in this record to warrant a conclusion that reasonable care required the town, at the pain of civil liability, to provide more safeguards to prevent motor vehicles leaving the roadway than it had done.

Accordingly, the orders of the Appellate Division should be modified, with costs to defendant Town of Union in all courts against plaintiffs and with costs to plaintiffs in this court only as to the other defendants, by dismissing the complaints against defendant Town of Union and remitting the case to Supreme Court, Broome County, for reapportionment of liability and, as so modified, affirmed.

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

Orders modified, with costs to defendant Town of Union in all courts against plaintiffs and with costs to plaintiffs in this court only as to the other defendants, by dismissing the complaints against defendant Town of Union and remitting the case to Supreme Court, Broome County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.


source: Caselaw Access Project

author: Jones, J. Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Herman Thomas, Respondent.
    Argued October 26, 1978;
    decided December 7, 1978

      POINTS OF COUNSEL

      Mario Merola, District Attorney (Alan D. Marrus of counsel), for appellant. I.
    Subdivision 4 of section 1194 of the Vehicle and Traffic Law, which permits introduction into evidence at trial of a defendant’s refusal to take a chemical test to determine the alcoholic content of his blood, provided that defendant was given sufficient warning of the effect of the refusal, does not violate the Fifth Amendment privilege against self incrimination. (People v Craft, 28 NY2d 274; People v Paddock, 29 NY2d 504; Schmerber v California, 384 US 757; Breithaupt v Abram, 352 US 432.) II. The trial court’s exclusion of evidence relating to defendant’s civilian complaint against a police officer who did not participate in the investigation or arrest in the instant case was not reversible error. (People v Crimmins, 36 NY2d 230; People v Donovan, 54 AD2d 1076.)

      Bertrand J. Kahn and William E. Hellerstein for respondent. I.
    Respondent was denied his Sixth Amendment right to compulsory process and his Fourteenth Amendment right to due process of law by the trial court’s refusal to admit evidence tending to show the bias and hostility of the arresting officers. (Chambers v Mississippi, 410 US 284; Jenkins v McKeithen, 395 US 411; People v Gilliam, 45 AD2d 744, 37 NY2d 722; People v Hepburn, 52 AD2d 958; People v Brooks, 131 NY 321; People v Michalow, 229 NY 325; People v McDowell, 9 NY2d 12; People v Torres, 51 AD2d 225; United States v Kartman, 417 F2d 893; People v Baker, 54 AD2d 547.) II. Subdivision 4 of section 1194 of the Vehicle and Traffic Law, under which the trial court admitted evidence of respondent’s refusal to submit to a blood test to determine the presence or absence of alcohol, violates the privilege against self incrimination secured by the Fifth and Fourteenth Amendments to the United States Constitution and by section 6 of article I of the Constitution of New York. (People v Von

      Werne, 41 NY2d 584; Miranda v Arizona, 384 US 436; Schmerber v California, 384 US 757; Gay v City of Orlando, 390 US 956; United States v Dionisio, 410 US 1; Gilbert v California, 388 US 263; People v Paddock, 29 NY2d 504; People v Stratton, 286 App Div 323, 1 NY2d 664; People v Johnson, 88 Misc 2d 53; People v Almestica, 42 NY2d 222.)
   OPINION OF THE COURT

Jones, J.

We uphold the constitutionality of subdivision 4 of section 1194 of the Vehicle and Traffic Law which provides that evidence of a defendant’s refusal to submit to a chemical test to determine the alcoholic content of his blood shall be admissible in any trial based on a violation of section 1192 of the Vehicle and Traffic Law, provided he was given sufficient warning, in clear and unequivocal language, of the effect of such refusal. The introduction of such evidence in accordance with this statute does not violate the defendant’s privilege against self incrimination under either the Federal or the State Constitution.

After a passing motorist had stopped them to report a serious accident, New York City Police Officers Mosiello and Spaulding proceeded immediately to the scene and found an automobile with its engine still running rammed into a fence separating the Major Deegan Expressway from the adjoining street. Defendant, alone in the front seat, was slumped over and bleeding profusely from the head. After calling for an ambulance the officers left their police car, walked over to the automobile and asked defendant who was fully awake what had happened. Both officers detected a heavy odor of alcohol on defendant’s breath and observed two bottles of wine, one full, the other more than half empty, on the floor by the front seat. The officers helped defendant out of his car and, no ambulance having arrived, took him to the hospital in their patrol car. It was clear to both officers, who together had effected 25 arrests for driving while intoxicated, that defendant was then in that condition.

While awaiting medical treatment in the emergency room, defendant was asked for his.driver’s license and automobile registration. After some difficulty he produced his driver’s license from his wallet but refused to part with his registration, at which point Officer Mosiello took his wallet from him, opened, it and in addition to the registration found several betting slips.

When Police Officer Haverlin, assigned to the Intoxicated Drivers Testing Unit, arrived at the hospital to administer a blood test to determine the extent of defendant’s inebriation, he informed defendant of his rights and warned him that refusal to take the blood test might result in the revocation of his driver’s license. When defendant refused to take the test he was further advised that pursuant to law his refusal to take the test could be introduced into evidence in court. Because of defendant’s continued refusal no test was administered (Vehicle and Traffic Law, § 1194, subd 2).

Defendant was thereafter charged with possession of gambling records in the second degree, promoting gambling in the second degree, and driving while intoxicated. After a pretrial hearing defendant’s motion to suppress the betting slips taken from his wallet was denied. At the trial the People were permitted, over objection, to introduce evidence of defendant’s refusal to submit to the chemical test to determine the alcoholic content of his blood. On the People’s case defense counsel sought to cross-examine the two arresting officers as to their knowledge at the time of the arrest of a civilian complaint which had previously been filed by defendant against a fellow officer. The prosecutor’s objection to such cross-examination was sustained. When defendant took the stand later in the trial he testified that one of the officers told him that the officer knew about the complaint and that the policeman against whom the complaint had been lodged would give the arresting officer a medal when he heard, about defendant’s arrest. The prosecutor’s objection to this testimony was sustained.

At the conclusion of the evidence the jury was charged, inter alia, that it could consider the evidence of defendant’s refusal to submit to the chemical test of his blood. Defense counsel’s request that such evidence could not be considered was denied. The trial court also submitted the charge of driving while impaired as a lesser included offense of driving while intoxicated. The jury acquitted defendant of the charges of promoting gambling and of driving while intoxicated, but found him guilty of possession of gambling records and of driving while impaired.

The Appellate Term reversed the judgment of conviction on both charges and ordered a new trial, holding that the exclusion of the circumstantial evidence of hostility of the arresting officers was reversible error and that the introduction of the evidence of defendant’s refusal to submit to a chemical test to determine the alcoholic content of his blood (as provided for by Vehicle and Traffic Law, § 1194, subd 4) violated his constitutional privilege against self incrimination. Leave was granted the People to appeal to our court, and we now reverse the order of Appellate Term and remit the case to that court for determination of the facts. (CPL 470.40, subd 2, par [b].)

With reference to the exclusion of the evidence offered in this case on the issue of hostility of the arresting officer witnesses, it is recognized as a general proposition that as to any witness "hostility to the party against whom he testifies, may be shown to affect his credibility” (Richardson, Evidence [10th ed], § 503, pp 490-491). The evidence sought to be introduced for that purpose in this instance, however, was remote; it was not evidence that defendant had made a complaint against the witness himself which, because of the normal reaction to the filing of a complaint, would have permitted an inference of personal hostility on the part of the witness who was testifying. Here the inference of hostility which defendant would have hoped that the jury might draw would have been because the action was taken against a fellow police officer, a significant step removed. Other than that they were members of the same police department and that the witness knew the other officer and had worked with him on one or two occasions, the nature or quality of the relationship between the witness and the officer against whom the complaint had been lodged was never established. Nor was any tender made to show the character or seriousness of the complaint, or whether it was warranted or could reasonably have been viewed as an unjustified attack on a public servant. Importing, as the admission of the evidence in this case would have, consideration by the jury of these collateral issues, it should be left to the sound discretion of the trial court whether to admit or to exclude as too remote the evidence of hostility. (3A Wigmore, Evidence [Chadbourn rev, 1970], § 949). We cannot conclude that the exclusion in this instance, in which the weighing of remoteness under all the circumstances was critical, was erroneous as a matter of law, although in most instances, at least where the hostility-provoking circumstance or action involves the witness himself, such factors are properly classified as going to probative worth rather than admissibility.

In consideration of defendant’s attack on the constitutionality of subdivision 4 of section 1194 of the Vehicle and Traffic Law, we start with the decision of the Supreme Court of the United States in Schmerber v California (384 US 757) in which that court held that withdrawal of blood from the human body for chemical analysis, although compelled, does not constitute evidence of a testimonial or communicative nature and does not, therefore, violate the Fifth Amendment privilege against self incrimination (cf. People v Craft, 28 NY2d 274). It follows from this holding that, inasmuch as a defendant can constitutionally be compelled to take such a test, he has no constitutional right not to take one.

The precise question before us is whether testimony may be admitted to establish that in fact this defendant refused to take the blood test, an issue expressly left open in Schmerber because it had not been preserved for review in that case (384 US, at pp 765-766, n 9). Realistically analyzed such testimony is relevant only in consequence of the inference it permits that defendant refused to take the test because of his apprehension as to whether he would pass it. To this extent the evidence may be characterized as "communicative or testimonial” rather than "real or physical” evidence or descriptive of an existing physical characteristic. But our inquiry does not end there. For example, evidence of flight of a defendant is admissible without question, yet the objective of offering such evidence is not to describe the geographical course the defendant followed in the particular instance or the manner in which he followed it (both of which would be irrelevant), but to permit the inference of a consciousness of guilt on his part.

Several courts which have confronted the issue have held that, inasmuch as the defendant has no constitutional right to refuse to take the test, the privilege against self incrimination is not applicable (People v Sudduth, 65 Cal 2d 543; State v Holt, 261 Iowa 1089; City of Westerville v Cunningham, 15 Ohio St 2d 121; State v Miller, 257 SC 213; State v Smith, 230 SC 164; cf. People v Ellis, 65 Cal 2d 529; People v Taylor, 73 Mich App 139).

We think the rationale should be stated more broadly. Although the evidence of the defendant’s refusal to take the test be classified as communicative or testimonial (and in our view it is immaterial for present purposes whether the particular proof introduced is in the form of a witness’ description of the defendant’s physical behavior in refusing to submit to the test or of testimony by the witness as to the defendant’s oral or written statement refusing to do so), it should be admissible so long as the defendant was under no compulsion of any sort to refuse to take the test.

Critical to this conclusion is the recognition that the constitutional provisions on which defendant would rely (the Fifth Amendment of the United States Constitution as made applicable to the State by the Fourteenth Amendment and section 6 of article I of the New York State Constitution) do not preclude receipt in evidence of self incriminating material per se; only communicative or testimonial evidence that has been compelled is excludable in a criminal proceeding by virtue of the constitutional protection. Thus, a defendant’s pretrial confession of guilt — perhaps the ultimate in self incriminating matter — is admissible in evidence if voluntarily and knowingly made and preceded by adequate warnings, if warnings were required in the setting in which the confession was made. It is only communicative or testimonial evidence that has been extracted from the defendant by compulsion in some form that falls before the constitutional proscriptions.

Compulsion need not of course be physical; it may as well be accomplished by the State’s attaching to the alternative course of action a penalty, punishment or detriment for the imposition of which no . other justification exists and of which the defendant is therefore entitled to be free. If, to avoid that unwarranted threatened consequence, the defendant produces what is self incriminating evidence, that evidence is fairly to be regarded as having been compelled and thus constitutionally inadmissible in a criminal proceeding against him.

The application of this analysis is demonstrated by consideration of the proscription against comment on a defendant’s failure to take the witness stand during a trial against him. The alternative to silence available to the defendant is his submission to interrogation by the prosecution under oath when he becomes a witness in open court — thereby exposing himself to the risk of giving testimony against himself and forfeiting the protection against such conduct which the Constitutions confer. Comment oh defendant’s failure to take the stand is an impermissible " 'penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly’ ” (Griffin v California, 380 US 609, 620 [Stewart, J., dissenting]). By like token, "it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation” (Miranda v Arizona, 384 US 436, 468, n 37).

Quite a different situation is presented however when the prosecution offers evidence of the defendant’s refusal to submit to a blood alcohol test. In no way in such a circumstance is there any compulsion on the defendant to refuse to take the test — the conduct which is the subject of the challenged evidence; on the contrary, the compulsion is to take the test. Submission to the test, not its evasion, was what was desired by the police officers in this case and, before them, by the Legislature in the enactment of section 1194 of the Vehicle and Traffic Law, embodying as it did two penalties or adverse consequences of refusal — license revocation and disclosure of refusal in a prosecution for operating a vehicle while under the influence of alcohol or drugs. As an alternative to refusal, defendant had a legitimate option available to him, the choice of which would have involved no forfeiture of a constitutional privilege or a statutory right — i.e., he could have submitted to the chemical test offered to him (Schmerber v California, 384 US 757, supra). Before making his determination as to which course to follow, defendant was informed, as the statute required that he be, "in clear and unequivocal language” of the effect of a refusal. The choice whether to take the test or to refuse was entirely his, as the statute makes clear. Under the procedure prescribed by section 1194 of the Vehicle and Traffic Law a driver who has initially declined to take one of the described chemical. tests is to be informed of the consequences of such refusal. If he thereafter persists in a refusal the test is not to be given (§ 1194, subd 2); the choice is the driver’s. With the advice at hand, this defendant chose to persist in his refusal, incurring the statutory consequences attendant thereon, apparently satisfied that his interests would thereby be better served than by risking disclosure of whatever the test might have revealed as to the alcoholic content of his blood. As Chief Justice Traynor so cogently observed: "A guilty party may prefer not to find himself in a situation where consciousness of guilt may be inferred from his conduct, but it can scarcely be contended that the police, who seek evidence from the test itself, will tend to coerce parties into refusing to take tests in order to produce this evidence” (People v Ellis, 65 Cal 2d 529, 537, supra). In being presented with the choice defendant was confronted with no impairment of any right enjoyed by him, for he had no constitutional privilege not to submit to the chemical test and the statutory right not to take the test conferred by the Vehicle and Traffic Law was qualified by express provision for admissibility of proof of refusal in a prosecution of the type now before us.

This analysis finds support in consideration of the inadmissibility of comment with respect to a defendant’s silence when he is arrested or accused of a crime. In such a situation he has the privilege under the Constitutions to remain silent and it is impermissible to penalize him for exercising that privilege. In the present case, defendant had no constitutional privilege or statutory right to refuse to take the test; hence comment on his refusal represents no infringement of privilege or right.

The conclusion we reach in this case is not inconsistent with that reached in People v Paddock (29 NY2d 504) and, earlier, in People v Stratton (1 NY2d 664), in both of which we found error in the admission of proof of a driver’s refusal to submit to a blood test on the trial of a charge which arose out of the operation of a vehicle while intoxicated. At the time those cases were decided the Vehicle and Traffic Law conferred an absolute right to refuse to submit to such a test, unqualified by any provision that evidence of such refusal might be received on trial of a charge arising out of the operation. Additionally, at the time of the Stratton case (before Schmerber) it was not yet clear that a defendant did not have a constitutional right to refuse to take a blood test. The theory of the Stratton case articulated at the Appellate Division was that “the fact that a defendant did what he had an absolute right to do cannot be used to create any unfavorable inference against him” (286 App Div, at p 326). We affirmed the disposition at the Appellate Division (1 NY2d 664).

As Judge Jasen pointed out in his concurring opinion in the Paddock case, by the time that case was before us it had been determined by the Schmerber decision that there was no constitutional right to refuse to submit to a blood test. The holding of inadmissibility of evidence of defendant’s refusal to submit had then to be predicated only on the unqualified statutory right of refusal conferred by section 1194 of the Vehicle and Traffic Law as it then read (29 NY2d, at pp 505-506). Inasmuch as that statutory right has now been modified and is qualified by the provision enacted by chapter 351 of the Laws of 1973 making evidence of refusal admissible, the decisions in Stratton and Paddock are no longer determinative.

In a different aspect, now that the authority for admission of the evidence is expressly embodied in the only statutory predicate for refusing to take the test, the admissibility of refusal evidence may also be viewed as a permissible condition reasonably attached to the grant of permission to operate a motor vehicle on the highways of the State. No physical characteristic or condition could be more closely related to incompetence to operate a motor vehicle than inebriation, and no aspect of motor vehicle regulation can be more important to the welfare of both operators and the public than keeping inebriated drivers off the public highways.

We conclude that the evidence of defendant’s persistent refusal to take the test was properly admitted, that the jury was correctly charged that it could consider such evidence, and that subdivision 4 of section 1194 of the Vehicle and Trafile Law is not violative of a defendant’s rights under either Federal or New York State Constitution.

Accordingly, the order of the Appellate Term should be reversed, and, inasmuch as the reversal in that court was on the law, the case remitted to that court for determination of the facts.

Fuchsberg, J.

(dissenting). I would uphold the Appellate Term in its unanimous determination that the defendant was deprived of a fair trial both because of the admission of the defendant’s refusal to submit to a blood test and because it was error to foreclose the defendant from establishing the hostility of the prosecution’s witnesses.

As I see it, in concluding that evidence of a refusal to submit to a blood test is admissible against an accused in a criminal prosecution, the majority misconceives the essential character of such evidence, which appears fully protected by the Fifth Amendment. This view does not break new ground. Long before the enactment of subdivision 4 of section 1194 of the Vehicle and Traffic Law it reflected the established rule in New York (People v Paddock, 29 NY2d 504; People v Stratton, 1 NY2d 664).

True, Schmerber v California (384 US 757), on which the majority rests much of its argument, rebuffed all Federal constitutional objections to the admissibility of the results of the blood test the defendant there was compelled to undergo. That decision, however, was expressly premised on the distinction between " 'communications’ ” or " 'testimony’ ” on the one hand and " 'real or physical evidence’ ” on the other (384 US, at p 764). I find it difficult to accept the idea that evidence of refusal to submit to a test is not communicative and testimonial. In contrast to physical evidence directly probative of a crime, such as the results of the blood test actually undertaken in Schmerber, the sole purpose for introducing refusal evidence is to permit triers of fact to infer consciousness of guilt (People v Von Werne, 41 NY2d 584, 588; Note, Constitutional Limitations on the Taking of Body Evidence, 78 Yale LJ 1074). ''[I]f a communication, written, oral, or otherwise, involves an accused’s consciousness of the facts and the operations of his mind in expressing it, such is testimonial and communicative in nature” (Dudley v State, 548 SW2d 706, 707 [Tex]; emphasis in original). Interestingly, the Schmerber opinion, which did not reach the question before us now, itself stated "[i]t is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications” (Schmerber, supra, at pp 763-764 [emphasis mine]).

Not surprisingly, then, this court today attempts to base its decision on what it terms a more broadly stated rationale. It argues that the defendant was under no compulsion to refuse to take the test. I respectfully suggest that this approach is more semantic than substantive. How can it be said the defendant in this case was not subjected to compulsion? He had to either submit to the test or refuse to do so; as the statute was structured, either alternative was capable of producing evidence against him. It would not be contended that if an arrested suspect, having been given Miranda warnings, is queried about the crime under investigation, his refusal to answer is admissible against him merely because it was not compelled (see People v Von Werne, 41 NY2d 584, supra). I find this indistinguishable in principle from the present case.

The majority’s reply would apparently be that, in the Miranda context, the defendant has a constitutional right not to respond, whereas Schmerber establishes that there is no constitutional right to refuse to submit to a blood test. The fact is, however, that Schmerber did not say there was no right to refuse to submit to a blood test. It merely held that, when an accused does refuse, compelled submission does not produce inadmissible evidence since a blood sample is physical — as opposed to testimonial or communicative — evidence. Furthermore, though it may well be true that the primary rationale for excluding refusal evidence in the Miranda context has been prophylaxis — any other course might undermine the constitutional protection itself — broader principles are at stake. Refusal evidence is protected in its own right by the Fifth Amendment because it is self incriminating testimony the Government forces from an accused. Indeed, I view it as first cousin to thought control itself.

This is not to denigrate the Legislature’s laudable and necessary attempts to keep the drunk driver off the road, and I have no qualms about revoking the license of a driver who refuses a founded police request to submit to a blood test. But criminal prosecutions under the Vehicle and Traffic Law are another thing. They must comport with the Fifth Amendment. The Legislature’s decision to prohibit compelled blood tests was an enlightened and humane one (see Vehicle and Traffic Law, § 1194, subd 2). But this praiseworthy conduct does not permit the State to impinge on a basic right. I would therefore hold that subdivision 4 of section 1194 of the Vehicle and Traffic Law is unconstitutional and that it was error to admit the defendant’s refusal into evidence.

I am persuaded too that the trial court’s rejection of defense counsel’s offer to impeach the police officer’s testimony with evidence of his hostility to the defendant also commands reversal. The facts bespeak the tenuousness of the People’s case and the importance of the testimony sought to be impeached.

The uncontradicted testimony is that defendant was driving in a rented taxicab when another driver cut him off and caused his vehicle to strike a highway divider. The proof merely was that an accident had happened, hardly an event to be regarded as extraordinary or inculpatory per se in this automobile age; there was no evidence whatsoever as to the operation of the taxicab before the accident, certainly none indicating any conduct associated with drunken driving.

It is conceded that defendant suffered severe injuries. Right after the accident he was bleeding profusely from lacerations on the head so extensive that fully 117 stitches were required for their approximation. As is obvious, observations of a person in such a state are without any worth in deciding whether he is under the influence of alcohol. If anything, defendant’s insistence that the police obtain medical attention for him before anything else bespeaks sobriety. When, midst the emergency treatment at the hospital, the police continued to badger him tq submit to an immediate blood test, his declination was also compatible with a lack of intoxication.

The People relied in the main on the testimony of the officers who claimed they had detected a "heavy” odor of alcohol on the defendant’s breath. But "heaviness” of a breath odor is related more to the type of beverage imbibed (see Erwin, Trial of a Drunk Driving Case, Trauma, Oct., 1959, p 108 [breath tests unreliable]) or the nature of the stomach contents an injured person regurgitates rather than to the quantity of alcohol consumed. It also tells nothing about whether it was ingested too recently to have affected the nervous system. The police also testified that they found two bottles of wine, one unopened, one half full, in the car (see Erwin, Trial of a Drunk Driving Case, Trauma, Oct., 1959, p 49 [at least 16 oz. of 20% fortified wine must be consumed to cause intoxication]). But the car was borrowed. And the vehicle inventory the police prepared made no reference to the bottles; to explain this discrepancy the officers stated they had turned over this valuable evidence of the crime to defendant’s brother. There was no record that they had done so, and the brother categorically denied the story.

Even more to the point, putting aside defendant’s own denial that he was drinking, arrayed against the assertions of the police was disinterested evidence of a highly convincing sort. One was clear proof that defendant was interdicted from drinking alcohol because he suffered from active stomach ulcers. True, people do not always follow the course doctors prescribe for them, but in this case defendant’s claim that he did not drink had some confirmation from the presence in the car of a bottle of Gellusil, a recognized antiacid used to assuage ulcers. Most important, however, was the hospital chart. Though the examination in this case had to have focused closely on defendant’s head, the record not only failed to note any finding of intoxication, but even of any odor of alcohol. This is all the more revealing since standard medical practice calls for neurological tests in head injury cases as a matter of routine. These would disclose any measurable alcoholic effect on reflexes; there was none here. This recital may not be determinative of guilt or innocence; but, at the very least, I suggest it demonstrates that the case was close.

It was in this context — with the police odor-of-alcohol testimony the sole direct evidence of intoxication — that the defense sought to introduce evidence that, on the occasion of the arrest, one of the officers had recognized the defendant as the complainant in a review board proceeding against another officer and had stated that "[the fellow officer was] going to give me a medal for this [arrest]”. Yet, the trial court excluded this proof at every turn. As I see it this constituted an abuse of discretion as a matter of law (People v McDowell, 9 NY2d 12, 15; Richardson, Evidence [10th ed], §§ 503, 504; 3A Wigmore, Evidence [Chadbourn rev, 1970], § 950). I would find nothing remote about the proffered proof. Quite the contrary, if it were to be believed it would have exposed the officer’s contemporaneous awareness of the prior complaint at the time of the arrest and a degree of consciousness great enough for him to have blurted it out to the defendant in words of sarcasm. These would permit the inference of an immediate motive for the charges against the defendant.

All the more is this so in a case where the testimony whose motivation is attacked is at best unreliable. For here the observations, if any, of defendant’s behavior made by the police were scanty, and the officers lacked competence to judge whether the source of any erratic behavior was intoxication as opposed to the aftereffects of the injury and its accompanying shock.

Accordingly, I would affirm the order of the Appellate Term.

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

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

      . The protection against self incrimination in both Constitutions is identical: "No person * * * shall be compelled in any criminal case to be a witness against himself’.

      . Proof, of which there is none here, that might be explanatory of a particular defendant’s refusal to take the test unrelated to any apprehension as to its results (as, for instance, religious scruples or individual syncopephobia) should be treated not as tending to establish any form of compulsion but rather as going to the probative worth of the evidence of refusal (Commonwealth v Robinson, 229 Pa Super Ct 131, 148-149; but see State v Andrews, 297 Minn 260). Thus, a jury might in such circumstances reject the inference of consciousness of guilt which would otherwise have been available.

      . In any event, we would be entitled to afford defendants in this State greater safeguards than in the Federal system by virtue of our own self incrimination clause (NY Const, art I, § 6) which we are free to interpret more protectively than the Supreme Court does the Fifth Amendment. (See Oregon v Hass, 420 US 714; Cooper v California, 386 US 58; Lego v Twomey, 404 US 477; Barker v Wingo, 407 US 514.) Thus, there is no reason for us to overrule Paddock and Stratton and the sensible approach they take to this problem.

      . Moreover, the court expressly conceded that their "conclusion would not necessarily govern had the State tried to show that the accused had incriminated himself when told that he would have to be tested. Such incriminating evidence may be an unavoidable by-product of the compulsion to take the test” (Schmerber, supra, at p 765, n 9). In the present case, the refusal is just such an unavoidable by-product of the police request that the defendant submit to the blood test.

      . Because I find subdivision 4 of section 1194 of the Vehicle and Traffic Law to be violative of fundamental Fifth Amendment principles, it is not necessary in this case to treat with the further objection that a refusal to submit to a blood test might be based on factors other than guilt of the charge, whether it be religious opposition, fear of hypodermic needles (see Schmerber, supra, at p 765, n 9), or simply principled objection to this kind of violation of one’s person by the State.

      . The majority also argues that the defense had failed to show the relationship between the arresting officer and the target of the complaint. It was the trial court’s hasty interjection, however, that cut off any such attempts, and I would not in any event require such showings with undue strictness because of the unavailability of examinations before trial in criminal cases.


author: Fuchsberg, J.

text:
    The People of the State of New York, Appellant, v Lionel Washington, Respondent.
    Argued October 24, 1978;
    decided December 7, 1978

      POINTS OF COUNSEL

      Eugene Gold, District Attorney (Alan D. Rubinstein and Helman R. Brook of counsel), for appellant.
    I. The People have complied with the statutory requirements concerning sealing. (Berger v New York, 388 US 41; Katz v United States, 389 US 347; Monroe v United States, 234 F2d 49; People v Feld, 305 NY 322; Alfano v United States, 555 F2d 1128; United States v Donovan, 429 US 413; United States v White, 401 US 745; Lopez v United States, 373 US 427; People v Nicoletti, 34 NY2d 249; People v Sher, 38 NY2d 600.) II. Assuming, arguendo, that the tapes were not properly sealed, it was nevertheless appropriate to use defendant’s intercepted communications to establish probable cause for his arrest. (United States v Fury, 554 F2d 522; United States v Hall, 543 F2d 1229; United States v Johnson, 539 F2d 181; United States v Vento, 533 F2d 838; People v Sher, 38 NY2d 600; People v Crimmins, 36 NY2d 230; People v Hobson, 39 NY2d 479; United States v Calandra, 414 US 338; Harris v New York, 401 US 222.)

      Abraham Hecht for respondent.
    I. The original eavesdropping warrant was defective in that it failed to comply with CPL 700.10 (subd 2). (People v Fiorillo, 63 Misc 2d 480; People v Palozzi, 74 Misc 2d 774, 44 AD2d 224; People v Gnozzo, 31 NY2d 134; People v Castania, 73 Misc 2d 166; Wong Sun v United States, 371 US 471; People v Dannic, 30 AD2d 679.) II. The original warrant was defective in that’ it failed to comply with CPL 700.50 (subd 1). (People v Castania, 73 Misc 2d 166.) III. The original application for the eavesdropping warrant was defective in that it failed to comply with CPL 700.20 (subd 2, par [e]). (People v Palozzi, 44 AD2d 224; People v Gnozzo, 31 NY2d 134; United States v Cafero, 473 F2d 489.) IV. New York statute requires immediate sealing without regard to extension order. (People v Simmons, 84 Misc 2d 749, 86 Misc 2d 737, 54 AD2d 624; People v Sher, 38 NY2d 600; People v Nicoletti, 34 NY2d 249; United States v Falcone, 505 F2d 478, 420 US 955.) V. The People offered no satisfactory excuse for the delay in sealing. (People v Nicoletti, 34 NY2d 249; People v Guenther, 81 Misc 2d 258; People v Scaccia, 55 AD2d 444; People v Sher, 38 NY2d 600.) VI. Respondent’s alleged confession and his alleged possession of narcotics are inadmissible. (People v Sher, 38 NY2d 600; Nardone v United States, 308 US 338; Silverthorne Lbr. Co. v United States, 251 US 385; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Fuchsberg, J.

The New York wiretapping statute (CPL art 700) is the subject of the two questions presented on this appeal: 1. Does CPL 700.50 (subd 2) allow the police to postpone presentation of recordings of intercepted conversations for judicial sealing until after the expiration of the final extension of an eavesdropping warrant? 2. Is this section’s immediate sealing requirement satisfied when transcription and rerecording difficulties delay police presentation of the tapes until 39 days after the expiration of the final extension order? For the reasons that are detailed below, we hold (1) that the police must present each eavesdropping tape for sealing immediately upon the expiration of the specific order covering the period during which it was recorded, and (2) that, in the circumstances of this case, allegations of technical difficulties and manpower shortages were inadequate excuses for delay.

In November, 1972, the police began their investigation of narcotics trafficking at a building on Lexington Avenue in Brooklyn. Visual surveillance of the premises revealed the frequent presence of known narcotics dealers, and undercover agents succeeded in purchasing drugs from these individuals on several occasions. Because they were unaware of the identities of many of those who were involved in the drug trade at that location, the police requested and received judicial authorization to install an eavesdropping device on June 13, 1973. This device, placed in the handset of a telephone at the Lexington Avenue premises, was designed so as to pick up all conversations in the room as well as those conducted via telephone. The warrant was extended for an additional 30-day period on July 11, 1973.

On August 1, the police observed a previously unknown individual later identified as the defendant enter the building. A message to that effect was radioed to another officer, who activated a single tape recorder that received the signal transmitted by the eavesdropping device. This officer also monitored the conversation aurally as it transpired. The substance of the discussion was that the defendant desired to purchase one-half kilogram of heroin for $14,500. The sale was completed when the defendant returned to Lexington Avenue about three hours later. The police observed him enter the premises, receive a brown paper bag and then depart in a taxicab. Acting on the basis of the overheard conversation and their observations, but without a warrant, the police stopped the cab and arrested the defendant, recovering the paper bag, which was later determined to contain heroin. After he was given the warnings required by Miranda v Arizona (384 US 436), the defendant admitted having "had the bag in [his] left hand”.

The police obtained two further extensions of the eavesdropping warrant, but no other conversations involving the defendant were overheard before the device was removed on November 3, 1973. Nevertheless, the original tapes of the recorded conversations were not presented to the issuing Justice for sealing until December 14, 39 days after the expiration of the final extension order on November 5, 1973. One hundred twenty-five days had elapsed since the expiration of the extension order under which the defendant’s conversations were seized.

Before trial, motions were made to suppress the tapes for defects in the applications for the eavesdropping warrant and extensions and for the failure of the police to comply with the statute’s minimization requirements. In addition, the defendant moved to suppress the heroin and his statement on the ground that the police did not have probable cause to arrest him. The motions were denied. At trial, a jury convicted him of criminal possession of a dangerous drug in the first degree, and he was sentenced to from 20 years to life imprisonment.

Upon appeal to the Appellate Division, the court remitted the case for a hearing on the extent of compliance with the sealing requirements of CPL 700.50 (subd 2) (52 AD2d 645). Criminal Term conducted a hearing and found that the Lexington Avenue operation consumed 120 reels of tape which recorded approximately 3,200 conversations; that all these tapes were sealed at the same time, December 14, 1973; that the 3 to 10 officers engaged in the investigation spent considerable time on duties other than monitoring the subject premises; that delays were caused by the incompatibility of the original and rerecording equipment, by the inability of some team members to identify all voices on the tapes, and by manpower reductions for vacations and court appearances; and that, before sealing, the tapes were kept at offices of the New York City Police Department or the District Attorney.

On the basis of these findings, the Appellate Division reversed the conviction and ordered a new trial. The court reasoned that, "[i]n the absence of at least a claim that the duplicate tapes of the intercepted communications were uniformly inaudible, or substantially below that quality which is necessary for transcription * * * the acknowledged need to complete the transcription of the 120 reels of intercepted communications did not constitute a satisfactory explanation for the 39-day hiatus between the expiration of the last extension of the eavesdropping warrant and the date upon which the original tapes were presented for sealing” (55 AD2d, p 609). The analysis which follows leads us to affirm.

CPL 700.50 (subd 2) demands judicial sealing of taped communications "[immediately upon the expiration of the period of an eavesdropping warrant.” The People contend that this language authorizes the police to await the expiration of the final extension of an eavesdropping warrant before presenting any tapes for sealing, as was the case here. We find that construction at odds with both the terms of the statute and the policies it seeks to promote.

Our interpretation of article 700 must be sensitive to the constitutional guarantees against search and seizure that the statute seeks to protect. The insidiousness of electronic surveillance threatens the right to be free from unjustifiable governmental intrusion into one’s individual privacy to a far greater extent than the writs of assistance and general warrants so dreaded by those who successfully battled for the adoption of the Bill of Rights (Olmstead v United States, 277 US 438, 476, 478 [Brandeis, J., dissenting]). Bound up with this right are the individual’s interest in personal autonomy, his need to control the image of his self that is projected to the world, and his right to freedom of expression (1 Dorsen, Bender & Neuborne, Political and Civil Rights in the United States 1048-1049 [4th ed, 1976]). These concerns are particularly germane to our construction of the sealing requirements, for it was the Supreme Court’s constitutional analysis in Berger v New York (388 US 41, 60) that gave rise to the statutory command for a prompt return on an eavesdropping warrant (Blakey & Hancock, A Proposed Electronic Surveillance Control Act, 43 Notre Dame Lawyer 657, 677, n 46).

Appreciation of the constitutional dimensions of the problem has led this court to construe strictly article 700’s sealing requirements (People v Sher, 38 NY2d 600; People v Nicoletti, 34 NY2d 249). A clear implication of those decisions is that, as a drastic and extraordinary remedy (see Berger, supra, p 58; CPL 700.15, subd 4), resort to eavesdropping must be circumscribed by extraordinary safeguards.

A due regard for these principles compels us to conclude that recordings of overheard communications must be presented for judicial sealing immediately upon the expiration of the specific warrant or extension covering the period when they were intercepted. CPL 700.50 (subd 2) speaks in terms of "the expiration of the period of an eavesdropping warrant”, not the termination of the final extension order. In contrast, title 18 (§ 2518, subd [8], par [a]) of the United States Code, upon which our statute was modeled (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL art 700, p 243), reads "expiration of the period of the order, or extensions thereof ’ (emphasis ours). There is no escaping the conclusion that the Legislature’s enactment of this variance was purposeful, especially in light of its frequent express references to warrants or extensions in other sections of article 700 (see CPL 700.50, subd 3; 700.60, subd 1). Nor do we stand alone in so construing the statute (see People v Glasser, 58 AD2d 448 [Shapiro, J.]; People v Pecoraro, 58 AD2d 462, 471 [Damiani, J. P., and Hawkins, J., concurring]).

Requiring judicial sealing of tapes upon the expiration of each order is in harmony with the underlying purposes of CPL 700.50 (subd 2) "to prevent tampering, alterations or editing; to aid in establishing the chain of custody; and to protect the confidentiality of the tapes” (People v Nicoletti, 34 NY2d 249, 253, supra). The goal of strictly limiting the opportunity for tampering is particularly undermined by any rule that delays the onset of judicial supervision of the tapes (see People v Glasser, 58 AD2d 448, 452, supra; cf. Biddle, CourSupervised Electronic Searches: A Proposed Statute for California, 1 Pac LJ 97, 117-118). To await the expiration of the final extension order in cases like the one before us now effectively vitiates the "immediate” sealing requirement. Given the absence of a statutory limit on the number of renewal orders that can be obtained (cf. Senate Report No. 1097, 90th Cong, 2d Sess, US Code Cong & Admin News, 1968, pp 2112-2192), sealing might then be postponed indefinitely under the rule proposed by the People.

In the face of this potential for unfairness to the parties to a recorded conversation, the People can suggest no undue hardship that would befall the police if a continuous sealing requirement were imposed (see United States v Fury, 554 F2d 522, 533). For these reasons, we conclude that the reasonableness of a delay in sealing a recorded conversation must be measured from the expiration of the specific order or extension under which it was seized.

In evaluating the adequacy of the explanations advanced for the delay here, it is worth repeating that the tape of defendant’s August conversations was not presented for sealing until 125 days after the expiration of the extension order pursuant to which it was recorded. True, no allegation or proof of tampering or alteration during that protracted period is offered by the defendant. But none is needed. "It is the potential for such abuse to which we address ourselves” (People v Nicoletti, 34 NY2d 249, 253, n, supra). Nor are the allegations of good faith on the part of the police dispositive. Rather, we consider solely whether the People have offered a satisfactory explanation for their delay (People v Pecoraro, 58 AD2d 462, 470, supra; United States v Poeta, 455 F2d 117, 122, cert den 406 US 948).

The officers involved in the investigation testified that manpower shortages and technical problems with recording equipment delayed the production of duplicate tapes and that, in any event, it was necessary to listen to the originals in order to properly transcribe the conversations and identify the participants. We have already rejected many of these arguments in a case in which the tapes were never sealed at all (People v Nicoletti, 34 NY2d 249, 253-254, supra), and we see no reason to depart from that analysis merely because we now are construing the immediacy requirement, which, in effect, seeks to protect the same interests.

The People attempt to go beyond Nicoletti, however, by arguing that its suggestion that duplicate tapes be prepared was demonstratedly inadequate in the present circumstances. We decline to allow the police to rely on their own failure to use proper equipment or to institute more efficient procedures as an excuse for delay. Law enforcement officials must be sensitive to the fact that, just as a warrant to wiretap may only be granted upon a showing of strict compliance with the law, so will its execution have been for nought unless there has been meticulous adherence to the terms of the warrant and the statute pursuant to which it issued (see, also, People v Simmons, 84 Misc 2d 749, resettled 86 Misc 2d 737, affd 54 AD2d 624).

In fact, it takes little imagination to visualize ready means for producing accurate transcriptions and for identifying the participants to the conversations. The police, for instance, might have installed a second recorder at the site where they received the signal from the eavesdropping device. Thus, two "original” tapes would have been generated, one for immediate judicial sealing and one to be retained for the production of a transcript (see United States v Falcone, 505 F2d 478, 486, supra [Rosenn, Ch. J., dissenting], cert den 420 US 955). Or, obviously they could have attempted to transcribe from the duplicates they made, and, upon reaching the limit of their ability to understand the rerecordings, they could have applied for unsealing and listened to the relevant portions of the originals under judicial supervision (see Sher, 38 NY2d 600, 604-605, supra).

In sum, whether it be measured from the expiration of the final order or that under which the defendant’s conversations were seized, the delay in this case was egregious (compare People v Pecoraro, 58 AD2d 462, supra [7 days]; People v Guenther, 81 Misc 2d 258 [7 days]; People v Scaccia, 55 AD2d 444 [18 and 15 days]; People v Glasser, 58 AD2d 448, supra [41 days]; People v Simmons, 84 Misc 2d 749, resettled 86 Misc 2d 737, affd 54 AD2d 624, supra [21 to 109 days]). Given the inadequacy of the explanation for the lengthy delay, the trial court erred in admitting the recordings.

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

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

Order affirmed.

      . CPL 700.50 (subd 2) provides: "Immediately upon the expiration of the period of an eavesdropping warrant, the recordings of communications made pursuant to subdivision three of section 700.35 must be made available to the issuing justice and sealed under his directions.”
      CPL 700.35 (subd 3) requires intercepted communications to be "recorded on tape or wire or other comparable device.”

      . CPL 700.30 (subd 7) limits the duration of a warrant authorizing eavesdropping to 30 days, but, under CPL 700.40, the police may obtain successive 30-day extension orders if they can satisfy the statute’s rigorous standards for showing continued need.

      . On this appeal the defendant has raised several challenges to the validity of this initial eavesdropping warrant and the sufficiency of the application therefor. We have considered these arguments and find them to be without merit.

      . CPL article 700 contains numerous provisions designed to prevent police interception of conversations not pertinent to their investigation or engaged in by individuals not named in the authorization warrant (e.g., CPL 700.10, subd 2; 700.30, subd 7; 700.35, subd 2; 700.65, subd 4; see, generally, People v Brenes, 42 NY2d 41; People v Floyd, 41 NY2d 245; Comment, 61 Cornell L Rev 92, 94-126).

      . The comments of an ABA Advisory Committee on a proposed model wiretapping act are also instructive. The statutory formula reads: "As soon as practicable but not later than thirty days after the termination of the overhearing or recording” (ABA Advisory Committee on the Police Function, Standards Relating to Electronic Surveillance, § 5.14 [1968]). The commentary notes that this section "requires that as soon as practicable, but not later than 30 days, a return be made on the electronic surveillance order. This would be in most cases shortly after the surveillance is terminated, or when a renewal of the warrant is sought” (emphasis ours).

      . The adequacy of the People’s "logistical difficulties” excuse is considered infra.

      . This approach is premised in part on the susceptibility of recorded evidence to manipulation and on a consensus that alterations may be difficult to detect (see, e.g., Nicoletti, supra, p 253; Sher, 38 NY2d 600, 604, supra; United States v Gigante, 538 F2d 502, 505; United States v Falcone, 505 F2d 478, 488 [Rosenn, Ch. J., dissenting], cert den 420 US 955). As Justice Brennan stated in his classic dissent to Lopez v United States (373 US 427, 468), "[f]ar from providing unimpeachable evidence, the devices lend themselves to diabolical fakery” (see, also, Dash, Schwartz & Knowlton, The Eavesdroppers [1959], p 368). CPL article 700 is the realization of a legislative judgment that compliance with procedural safeguards is a more judicially manageable basis for the admissibility of recordings than inquiry into the perhaps insolvable question of whether the tapes have been "doctored”. Unless the police meet their burden of demonstrating compliance, the question of tampering is never even reached (see Sher, supra, p 605).

      . As indicated in these cases, this standard has its genesis in the last clause of CPL 700.65 (subd 3), which reads: "the presence of the seal provided for by subdivision two of section 700.50, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any communication or evidence derived therefrom” (emphasis ours) and which has been adopted judicially as an appropriate standard under which to decide cases involving delays in sealing.


text:
    The People of the State of New York, Respondent, v Richard Newman, Appellant.
    Argued December 1, 1978;
    decided December 21, 1978

      POINTS OF COUNSEL

      Lynn W. L. Fahey and William E. Hellerstein for appellant.
    I. The court’s refusal to charge (a) that the People have the burden of proving guilt of every element of the crimes charged beyond a reasonable doubt, (b) that the jury must assess the credibility of the witnesses, and (c) that intent or mental culpability is needed for a conviction on an aiding and abetting theory resulted in a charge which violated the mandate of CPL 300.10 and denied appellant a fair trial. (Patterson v New York, 432 US 197; Mullaney v Wilbur, 421 US 684; Matter of Winship, 397 US 358; People v Green, 35 NY2d 437; People v Laudiero, 192 NY 304; People v Montesanto, 236 NY 396; People v Cardinale, 35 AD2d 1073; People v Ochs, 3 NY2d 54; People v Ohanian, 245 NY 227; People v Walker, 198 NY 329; People v Caserta, 19 NY2d 18.) II. The jury’s verdict, which convicted appellant of assault in the second degree under subdivision 6 of section 120.05 of the Penal Law, while acquitting him of robbery in the second degree under section 160.10 (subd 2, par [a]) of the Penal Law, was a repugnant verdict. (People v Carbonell, 40 NY2d 948; People v Bullis, 30 AD2d 470; People v McEaddy, 30 NY2d 519.)

      Eugene Gold, District Attorney (Sharon Litwin and David Harrigan of counsel), for respondent.
    I. The court’s charge was adequate. II. The verdict was internally self-contradictory but should not be reversed. (People v Salemmo, 38 NY2d 357; People v Cicchetti, 44 NY2d 803; People v Gruttola, 43 NY2d 116; People v Fonseca, 36 NY2d 133; People v Robinson, 36 NY2d 224; People v Kibbe, 35 NY2d 407, affd sub nom. Henderson v Kibbe, 431 US 145; People v Miles, 289 NY 360; People v Mussenden, 308 NY 558; People v Clemente, 285 App Div 258.)
   OPINION OF THE COURT

Fuchsberg, J.

We hold that, in the circumstances of this criminal case, it was reversible error for the trial court to have refused a request to charge that the People had the burden of proving every element of the crimes charged beyond a reasonable doubt when the ground for the refusal was that the court had already so advised the jury in a preliminary address at the outset of trial.

The appellant, Richard Newman, was charged with multiple counts of assault, larceny and robbery, all stemming from a subway altercation in which a passenger was robbed of six dollars. After a vigorously contested trial, the jury acquitted him of three counts of robbery, but found him guilty of assault in the second degree (Penal Law, § 120.05, subd 6), robbery in the third degree (Penal Law, § 160.05) and larceny in the third degree (Penal Law, § 155.30, subd 5). The Appellate Division, deeming the third degree larceny a lesser included offense of the third degree robbery, modified the judgment of conviction "on the law and as a matter of discretion in the interest of justice” by striking the lesser count, but otherwise affirmed (59 AD2d 624). The case is now here by permission of an Associate Judge of this court. For the reasons which follow, we are of the opinion that a new trial is required.

CPL 300.10 (subd 2), in language that simply restates a venerable postulate, mandates that a trial court’s instructions to a jury "must state the fundamental legal principles applicable to criminal cases”. It hardly seems necessary to point to the fundamental nature of the constitutional precept that each essential element of a crime must be proved beyond a reasonable doubt (see Matter of Winship, 397 US 358; People v Green, 35 NY2d 437, 442). In applying this mandate, it must be remembered that a case in the end is the sum of each of its parts. As New York’s codification of the principle puts it, "No conviction of an offense by verdict is valid unless based upon trial evidence which is sufficient and which establishes beyond a reasonable doubt every element of such offense and the defendant’s commission thereof’ (CPL 70.20).

Examining the record, we note that in the present case the trial court in fully acceptable language indeed did tell the jury that "the prosecution is put on notice by a mandate of law that they must prove the defendant’s guilt of each and every material element of the indictment, all beyond a reasonable doubt”. However, it was not in his charge that he did so, but only in the course of preliminary remarks delivered before counsel made their opening statements and, therefore, before any proof had been presented. In contrast, days later, when each side had completed its proof and closing argument, he rendered no such instruction, either in words or substance. That is not to say that all the components of CPL 70.20 were omitted. The Trial Judge separately, and adequately, explained what was meant by "reasonable doubt”. And at another point in his charge he enumerated the elements of each crime for which Newman was being tried, reading the indictment and the applicable sections of the Penal Law. But, reasonable doubt was not coupled with his reference to the elements of the crimes. In short, at no point was the jury advised in the charge that the burden of proving guilt beyond a reasonable doubt attached to each material element of the crimes rather than merely to some generalized concept of the crimes as a whole.

Sensitive to this omission, counsel, promptly upon the conclusion of the charge and before the jury had commenced its deliberations, specifically requested a supplementary instruction "that each and every element of the crime charged must be proved beyond a reasonable doubt.” The court denied the request, explaining, "No, I read the statute to them. I think it was quite definitive and I think they understood”. The request should have been granted. That the Trial Judge, in his talk to the jurors at the beginning of the trial, had taken that occasion to inform them of the precise concept which counsel would later ask be charged is almost beside the point. The eventual defective charge was not rendered harmless thereby.

It is well and good for Trial Judges to give jurors the benefit of an introductory and explanatory address to help dissipate some of the mystery that may lurk in laypersons who are about to undertake the responsibilities of playing a significant and determinative, albeit transient, role in the adjudicative process. It is also more than helpful, and in some cases essential, that jurors be familiarized with pertinent rules and procedures peculiar to the law and the courts and perhaps the particular matter at hand. Every Judge who has had to preside over a jury trial and every lawyer who has ever prepared or tried such a case appreciates the advantages of such indoctrination in easing the transition jurors must make as they move from their usual occupational environments into the world of law (see CPL 260.30; Prettyman, Jury Instructions — First or Last? 46 Amer Bar Assn J 1066).

The desirability of orientation, however, does not excuse the requirement for the eventual predeliberation instructions which would ordinarily be included in a charge in a particular case. To believe that the first is a substitute for the second, or to act as if it does not matter when but only that a charge is given, is to misapprehend the function of the latter. For a charge should do more than merely articulate the legal principles applicable to the case to be decided. Among other things, it should also focus attention on the specific factual issues raised by the evidence to which the principles are to be applied (Green v Downs, 27 NY2d 205, 208; 1 Dowsey, Charges to the Jury and Requests to Charge in a Criminal Case, § 8; cf. 1 NY PJI — Civil 1:6).

The presentation of the proofs as they have actually developed, the conflicts thereby created in the minds of jurors, the contentions advanced on interrogation and in argument by opposing counsel — these are the sort of things that turn dry-sounding legal propositions into living laws whose significance jurors will readily appreciate and apply as tools to the resolution of a case they have come to know. On the other hand, before the jurors will have experienced this exposure to the trial process, the same words, when heard by the untutored ear for the first time, may come off as little more than abstract and highsounding phraseology. A charge given as here, before any of the evidence was in and before the witnesses had been heard or seen, indeed before the lawyers had even opened on what they intended to prove, obviously is not suited to that purpose. In brief, the issue crystallization process can only achieve its potential if detailed instructions are given immediately before the jury’s deliberation. Introductory remarks are no substitute (People v Cardinale, 35 AD2d 1073).

Moreover, the time interval between the outset of trial and the point at which jurors begin their deliberations, what with the plethora of facts and arguments to which they may be exposed in the interim, makes it extremely unlikely that preliminary instructions would carry much weight in the jury room. Common experience teaches that things we were told most recently are those we will usually remember. And it is no accident of statutory draftsmanship, but rather the product of logic and long experience, that in every one of the United States, without exception, the practice is to charge at a terminal stage of the case (see, generally, 23A CJS, Criminal Law, § 1299). In our own, as in most, it is at the "conclusion of the summations” (CPL 300.10).

It also goes without saying that even the premature instruction with which we here are concerned, recited as it was at a time when at best it could only be surmised as to what the proof would turn out to be, was not co-ordinated with what later would turn out to be the evidence relevant to each specific element that had to be proved to establish guilt (see Green v Downs, supra). Such a charge, without more, would in any event have run the risk that it would not be sufficiently comprehensible in the context of a case tried on a multicount, multielement indictment like the one this defendant faced.

For these reasons, the order of the Appellate Division should be reversed and a new trial ordered on the counts of assault in the second degree and robbery in the third degree.

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

Order reversed and a new trial ordered in accordance with the opinion herein.

      . Because we have so concluded, we find no occasion to reach the other alleged errors urged on us by the appellant.

      . This was a second trial. The jury had disagreed in the first one after advising the trial court that there was "a problem in deciding guilt or innocence”.


text:
    Jeanette Haimes, as Administratrix of the Estate of Edward Haimes, Deceased, Respondent, v New York Telephone Company, Appellant.
    Argued October 18, 1978;
    decided December 21, 1978

      POINTS OF COUNSEL

      Lawrence E. Lagarenne and D. Christopher Du Bois for appellant.
    Defendant-appellant is not responsible under sections 240 and 241 of the Labor Law of the State of New York for the death of decedent in this case. (Rocha v State of New York, 77 Misc 2d 290, 45 AD2d 633; Myers v Cornell Univ., 46 AD2d 839; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1; Allen v Cloutier Constr. Corp., 56 AD2d 348; Iuliani v Great Neck Sewer Dist., 38 NY2d 885; Bidetto v New York City Housing Auth., 25 NY2d 848; Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136; Wright v Belt Assoc., 14 NY2d 129; Hess v Bernheimer & Schwartz Pilsener Brewing Co., 219 NY 415; Kappel v Fisher Bros., 6th Ave. Corp., 39 NY2d 1039.)

      Michael Davidoff and John S. McBride for respondent.
    I. Section 240 of the Labor Law (L 1969, ch 1108, §§ 1, 2, 3) imposes a nondelegable duty on owners. (Allen v Cloutier Constr. Corp., 56 AD2d 348; Iuliani v Great Neck Sewer Dist., 38 NY2d 885; Kappel v Fisher Bros., 6th Ave. Corp., 39 NY2d 1039; Rocha v State of New York, 77 Misc 2d 290, 45 AD2d 633; Myers v Cornell Univ., 46 AD2d 839; Dole v Dow Chem. Co., 30 NY2d 143; Whelen v Warwick Val. Civic & Social Club, 89 Misc 2d 577.) II. Where there is no general contractor and no subcontractors then section 240 of the Labor Law imposes a nondelegable duty on owners. (Rivers v Sarter, 26 NY2d 260; Whelen v Warwick Val. Civic & Social Club, 89 Misc 2d 577.) III. Defendant exercised control and supervision of the work site.
   OPINION OF THE COURT

Fuchsberg, J.

This action for wrongful death is grounded on an alleged violation of section 240 of the Labor Law of the State of New York. The basic question we are called upon to decide is whether a breach of the duties prescribed by that statute gives rise to absolute liability on the part of an owner of a building despite the fact that the owner exercised no supervision, control or direction of the work being performed and that the person injured by the violation was a self-employed independent contractor whom the owner had engaged to do the work.

Subdivision 1 of section 240 reads as follows: "All contractors and owners and their agents, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed” (emphasis supplied).

Essentially, the facts are undisputed. Plaintiff’s decedent, Edward Haimes, was painting a cornice at the roof level of a building owned by the defendant, New York Telephone Company, when the ladder on which he was standing toppled, throwing him 18 feet to the ground and causing him to lose his life. The work was being done for a fixed price pursuant to defendant’s purchase order. The exact time of performance and the other details of the work were left entirely to Haimes, who also supplied all equipment, including the ladder used on the job. At the time of the occurrence, no person was assisting the decedent and the ladder was not being secured against slippage by any mechanical or other means whatsoever.

The appeal comes to us in the following procedural context:

After a nonjury trial on the issue of liability alone, Trial Term, though its findings of fact accorded with those we have recited, dismissed the complaint, which was premised only on the alleged violation of section 240. The court did so solely because the plaintiff had failed to establish "control or supervision”, which the Trial Judge then thought the statute required as an essential predicate for imposition of liability on the owner.* * But the Appellate Division, noting that "no issue of fact having been considered” by it, reversed "on the law and the facts”, ordered judgment entered in favor of the plaintiff and remitted the matter for assessment of damages. It thereafter granted defendant leave to appeal to this court and, pursuant to CPLR 5713, certified the following question: "Did the Trial Term err as a matter of law in dismissing plaintiff’s complaint?” For the reasons that follow, in answering the question in the affirmative, we also conclude that the complaint should not have been dismissed.

Viewed in perspective, section 240 is one of the progeny of our State’s long line of legislative efforts to eliminate dangers to the health and safety of those working in hazardous occupations. As long ago as 1885, enactments to that end had already come to include the first "scaffold laws”, which expressly placed house painters within the embrace of their protections (L 1885, ch 314; L 1892, ch 517). During the ensuing decades, with the growth of social consciousness, the statutory provisions became increasingly favorable to workers, but as is not unusual in such matters there came a time when the pendulum began to swing the other way.

The retreat reached its most pronounced form with the passage of the 1962 amendments. Prior thereto, an owner or general contractor had come to be regarded as subject to vicarious first instance liability without regard to fault or control. The amendments, however, especially section 240’s companion section 241, came to be construed as requiring that an owner or general contractor actually had to have exercised control or supervision before either could be held responsible for the negligent acts of others (see Allen v Cloutier Constr. Corp., 44 NY2d 290, 292-293, supra). However, the full effects of this turnabout had hardly come to be felt when the Legislature, in 1969, once again reversed its course and returned to what were essentially the pre-1962 provisions (see L 1919, ch 545, § 2; L 1962, ch 450, § 3; L 1969, ch 1108, § 3).

In calling a halt to its earlier backtracking, the Legislature minced no words. Referring expressly to both section 240 and section 241, its stated purpose in redrafting these statutes was to fix "ultimate responsibility for safety practices * * * where such responsibility actually belongs, on the owner and general contractor” (NY Legis Ann, 1969, p 407). Whatever doubt may have remained that it had succeeded in doing so as to section 241 was laid to rest by our recent decision in Allen v Cloutier Constr. Corp. (supra).

There is no less reason to apply the expressed legislative policy in our construction of section 240. Prior to 1969, this section placed liability for its violation upon "A person employing or directing another to perform labor” (emphasis ours); it now unqualifiedly places liability upon "All contractors and owners and their agents”, duplicating the language of section 241. Under both amended sections, an owner no longer need be the employer of the worker or one directing his labor in order to be subject to liability. Furthermore, section 240 no longer contains any provision spelling out responsibility of subcontractors for compliance with the duties that section imposes; as Judge Cooke, writing in Allen, pointed out, the 1969 deletion of such a clause from section 241 was a significant factor in the revitalizing of that statute (Allen v Cloutier Constr. Corp., supra, p 298). If, with all that, an owner’s liability had been intended to continue to be conditioned on control and supervision, it would have to be said that the Legislature, for all its vaunted labors and professions, had engaged in but an empty charade. There is no basis for such conclusion (Carinha v Action Crane Corp., 58 AD2d 261, 267 [Murphy, P.J., concurring in part], 275 [Lupiano, J., dissenting]; Rocha v State of New York, 45 AD2d 633; Matter of Weinstein v . Swan-Finch Oil Corp., 7 Misc 2d 291).

Having thus disposed of the underlying issue, we turn to the owner’s alternative position, i.e., that, since Haimes was an independent contractor rather than an "employee” of one, he did not fall within the class of persons protected by section 240. It argues that neither the legislative history nor the decided cases deal discretely or expressly with that question and that, therefore, the question is an open one. We hardly think so. The Legislature in its memorandum spoke to an owner’s "non-delegable duty to provide a safe place to work for all workmen on the job” (emphasis ours) and to the common prediliction of "an owner and/or contractor * * * to choose a subcontractor predicated on price” rather than safety. As already indicated, the legislators also implemented their words by eliminating section 240’s earlier bracketing of subcontractors with those upon whose shoulders the statutory duties theretofore had been placed. Thus, given the history and purpose behind the 1969 amendment, the failure to litigate the point would appear to prove nothing more than that those affected accepted the fact that a workman who is an independent contractor is yet a workman.

Little more, if anything, can be inferred from the fact that the statute, in referring to safety devices, states that these are intended for "protection to a person so employed”. This is far from saying that such a person must be part of an employer-employee relationship. It needs no resort to the dictionary to know that the meaning of the word "employed” is not so limited. In the statute itself, "employed” refers back to the phrase "performance of such labor”. And, revealingly, the Labor Law’s own definition of "employed” is "permitted or suffered to work” (Labor Law, § 2, subd 7).

Finally, the defendant claims it could not have been the legislative design that "every property owner who had people working on his premises in the capacity of an independent contractor, whether applying siding, painting, repairing a television antenna or a roof, or doing similar work, would be an insurer of the independent contractor’s safety”. In so arguing, it ignores the fact that the Legislature apparently decided, as it was within its province to do, that over-all compliance with safety standards would be achieved by placing primary and inescapable responsibility on owners and general contractors rather than on their subcontractors who, often occupying an inferior economic position, may more readily shortcut on safety unless those with superior interests compel them to protect themselves.

That is not to say, and it would be unrealistic for us to assume, that the Legislature was not aware of the fact that in many instances the circumstances may be just the opposite. The owner of a one-family dwelling, for example, may be in a less dominant position than the particular subcontractor he engages. Or, perhaps neither the owner nor the contractor, most especially when the hiring is for a limited or casual task, is more to be looked to as a guardian of safety than is the other. But, whether these or other situations warrant exceptional treatment was, as with the basic legislation itself, a matter for the exercise of the Legislature’s judgment, not ours. Precedent for exceptions in comparable circumstances, should the Legislature believe it wise to make any, is not hard to find (see, for instance, Labor Law, § 202).

Accordingly, the question certified must be answered in the affirmative and the order of the Appellate Division must be affirmed.

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

Order affirmed, with costs. Question certified answered in the affirmative.

APPENDIX A

"§ 240. Scaffolding and other devices for use of employees.

"1. All contractors and owners and their agents, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

"2. Scaffolding or staging more than twenty feet from the ground or floor, swung or suspended from an overhead support or erected with stationary supports, except scaffolding wholly within the interior of a building and covering the entire floor space of any room therein, shall have a safety rail of suitable material properly attached, bolted, braced or otherwise secured, rising at least thirty-four inches above the floor or main portions of such scaffolding or staging and extending along the entire length of the outside and the ends thereof, with only such openings as may be necessary for the delivery of materials. Such scaffolding or staging shall be so fastened as to prevent it from swaying from the building or structure.

"3. All scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom, or placed thereon when in use.”

      . The full text of section 240 is set out as Appendix A to this opinion.

      . Aside from the violation of the statute itself, the unsecured use of the ladder did not conform with the rules of the Board of Standard and Appeals, which, inter alia, specifically provide: "When work is being performed from rungs higher than 10 feet above the ladder footing, mechanical means for securing the upper end of such ladder against side slip are required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used.” (12 NYCRR 23-1.21 [b] [4] [iv]). Thus, if the facts had not been broad enough to implicate the statute per se, the violation of the rules, as has long been recognized, would still constitute evidence of negligence (Allen v Cloutier Constr. Corp., 44 NY2d 290, 299; Teller v Prospect Hgts. Hosp., 280 NY 456, 460; Prosser, Torts [4th ed], § 36, pp 197-198).

      . The Trial Judge interpreted our decision in Iuliani v Great Neck Sewer Dist. (38 NY2d 885) as requiring the dismissal. However, Iuliani arose before 1969, when the Legislature last recast sections 240 and 241 of the Labor Law (see Kappel v Fisher Bros., 6th Ave. Corp., 39 NY2d 1039).