author: Cooke, J.

text:
    American Trading Company, Inc., Appellant, v Leonard Fish, Respondent.
    Argued April 26, 1977;
    decided June 9, 1977

      Lawrence M. Rosenstock for appellant.

      Michael P. Fuchs for respondent.
   Cooke, J.

This case presents the question of whether the four-year Statute of Limitations under subdivision 1 of section 2-725 of the Uniform Commercial Code bars this action by a seller of goods against a guarantor to recover amounts due on dishonored trade acceptances and bills of exchange issued pursuant to a contract for the purchase of such goods by a corporation no longer in business.

In June, 1967, plaintiff American Trading Company, Inc., entered into a written agreement with Kinematix, Inc., and its sole shareholder, defendant Leonard Fish. The tripartite agreement provided for the establishment of a branch office of plaintiff at the offices of Kinematix. Defendant Fish was to act as branch manager of that office without compensation because the parties "recognized that the consideration for his acceptance of such employment are the benefits flowing to Kinematix from this agreement.” The understanding between the corporations was that Kinematix would purchase basically all of the materials used in its business from American, and American in turn agreed to sell to Kinematix all such materials at a price based on direct cost plus 5%. The pivot of this action is a clause stating: "Fish hereby guarantees full performance by Kinematix of all of the terms and conditions of this agreement on the part of Kinematix to be performed.”

Trade acceptances and bills of exchange were executed and delivered by Kinematix to American pursuant to the agreement, but all of these instruments were dishonored. Judgments obtained against Kinematix within four years from the date of the last such instrument remain uncollectible. American then sought to recover against defendant on the guarantee. This action, however, was not commenced until four and one-half years from the date of the last trade acceptance, allegedly because of difficulty encountered in serving defendant Fish.

Special Term granted defendant Fish’s motion to dismiss on the ground that the action was barred by the four-year Statute of Limitations under subdivision 1 of section 2-725 of the Uniform Commercial Code. It was reasoned that defendant’s liability could not exceed that assumed by his principal (Kinematix), that the essence of the transaction was a sale of goods, and that therefore defendant’s guarantee was subject to the four-year Statute of Limitations under the Uniform Commercial Code rather than the six-year limitation under CPLR 213 (subd 2). In this regard, the court construed the agreement as requiring the defendant to guarantee payment for the sales and not payment of the trade acceptances as such, thus dismissing the contention that defendant was liable on the trade acceptances. Finally, it rejected plaintiff’s argument that, because it allegedly took six months to ascertain defendant’s residence address in Illinois, the Statute of Limitations tolled pursuant to CPLR 207, and the contention that certain letters from defendant constituted an acknowledgment and promise to pay sufficient to start the statute running anew (see General Obligations Law, § 17-101). The Appellate Division affirmed for the reasons advanced by Special Term.

There should be a reversal. Although a narrow reading of the agreement executed by American, Kinematix and defendant may lead one to the conclusion that the "essence” of the transaction is the sale of goods, the writing actually embodies separate undertakings—a contract for the sale of goods between American and Kinematix, an obligation to manage the branch office undertaken by defendant, and a guarantee by defendant to American that Kinematix will perform. It is taking far too formalistic an approach to say that all this was merely a sales agreement and that, solely for this reason, defendant’s guarantee is subject to the Statute of Limitations applicable to contracts for the sale of goods under subdivision 1 of section 2-725 of the Uniform Commercial Code.

In resolving the question of which Statute of Limitations is applicable and in examining certain contentions of defendant, we must proceed from a point recognizing the instrument under survey as more than a mere contract for the sale of goods. Initially, we reject the argument that defendant was not a guarantor but a co-obligor of the contract of sale, and hence a beneficiary of the Statute of Limitations applicable to such contracts. Defendant’s obligations, both as a guarantor and as a branch manager, were of a different nature from those of Kinematix. Despite assertions to the contrary, in our view the agreement did not grant defendant the right to enforce the sales aspect of the agreement against American. Therefore, we conclude that defendant’s undertaking in this respect was not that of co-obligor, but rather that of guarantor of the obligation of Kinematix.

It is urged that since an action based on the contract of sale would be barred by the Statute of Limitations, this action on defendant’s undertaking is likewise barred. In support of this position, defendant quotes the following from Matter of Cheesman v Cheesman (236 NY 47, 51): "It is the general rule that a surety is not liable if the original debt is barred by the Statute of Limitations. In such a case no recovery may be had even where the principal has allowed judgment to be taken against him. The surety may avail itself of the statute in an action brought against it * * * McMullen v. Rafferty, 89 N. Y. 456”.

In Cheesman, an employee had failed to file a claim within the one-year period required under the then existing provisions of the Workmen’s Compensation Law. At a hearing on the claim, the carrier objected to the delay but the employer, who was the claimant’s father, did not join in this objection. As to the employee, the court characterized the carrier as a surety which could raise the objection independently of the employer. The court then made the quoted statement regarding a surety’s liability.

Despite the language used in Cheesman, it is noteworthy that the case contains no discussion of the Statute of Limitations applicable to the carrier. By comparison, in McMullen v Rafferty (89 NY 456 [1882]), cited in Cheesman for the quoted proposition, the court determined that the cause of action against a guarantor of nonnegotiable notes accrued at the same time as it accrued against the maker, and thus the period for bringing the action had expired at the same time with respect to both the maker and the guarantor. Hence, neither Cheesman nor McMullen involve a situation where for some reason the period of time for bringing the action against the guarantor had not yet expired but the period had run as to the principal. In other words, under the facts of those cases, the court was not confronted with the question of whether in an action not otherwise barred a guarantor is relieved of liability solely because the action against the principal is time-barred (see Surety—Limitation of Actions, Ann., 122 ALR 204, 208-209).

It has been said that "the weight of authority is against the surety pleading the running of the Statute of Limitations against his principal” (10 Williston, Contracts, [3d ed, 1967], § 1214, p 715; see, e.g., Weems v Carter, 30 F2d 202; see, also, 38 Am Jur 2d, Guaranty, § 53). To the extent that any formal distinction is still made between a surety and a guarantor (see 57 NY Jur, Suretyship and Guaranty, § 15), as to the latter the authority is weighted in the same direction (see Guarantor —Release or Discharge, Ann., 58 ALR2d 1272; compare Bomud Co. v Yockey Oil Co., 180 Kan 109). This is illustrated in Manufacturers Trust Co. v McConnell (72 NYS2d 876 [Hecht, J.]), where as an affirmative defense a guarantor claimed to be discharged because the creditor failed to proceed against the principal on certain notes until after any action thereon was barred by the Statute of Limitations. Rejecting this contention the court commented that "[i]t was no condition of the guaranty that a valid cause of action should exist against the [principal] at the time when recovery was sought on the guaranty” (p 878).

There is a very basic reason why the guarantor should not be discharged merely because the Statute of Limitations could have been raised in an action against the principal. While ordinarily the liability of a guarantor will not exceed in scope that of his principal, the guarantee is a separate undertaking and may impose lesser or even greater collateral responsibility on the guarantor (see Standard Brands v Straile, 23 AD2d 363; 10 Williston, Contracts, [3d ed, 1967], § 1211, p 686; see, generally, 57 NY Jur, Suretyship and Guaranty, § 108; cf. Pink v Investors Syndicate Tit. & Guar. Co., 246 App Div 172, 174, affd 273 NY 483; Richardson Press v Albright, 224 NY 497). Although the language employed in Cheesman may imply a contrary approach, it should not be read as creating an immutable rule that if the action against the principal is time-barred the guarantor is automatically discharged. Cheesman has not generally been so read (see, e.g., People v Standard Acc. Ins. Co., 17 AD2d 1, 3, see, also, p 4 [dissent], mod on other grounds 13 NY2d 751; see, generally, 57 NY Jur, Suretyship and Guaranty, § 236; but see, e.g., Matter of Donahue, 78 Misc 2d 923), and to the extent that its language may be in opposition to the foregoing analysis, it is now expressly disapproved. This issue thus resolved, we come to the question of whether this action against defendant is time-barred.

In our view, the appropriate Statute of Limitations with respect to defendant’s guarantee should be the six-year period applicable to contracts generally under CPLR 213 (subd 2). This determination is not based on any conclusion that the agreement here did not involve a contract for the sale of goods (compare Owens v Patent Scaffolding Co., Div. of Harsco Corp., 50 AD2d 866; Schenectady Steel Co. v Trimpoli Gen. Constr, Co., 43 AD2d 234, affd on other grounds 34 NY2d 939). Rather, it is based on the recognition that defendant’s guarantee was an undertaking separate from the sales arrangement itself. In so holding, we reject the notion that a guarantee of a contract of sale must in all instances be subject to the same Statute of Limitations as the underlying obligation. Of course, the Uniform Commercial Code rather than the CPLR controls with regard to contracts for the sale of goods (CPLR 213, subd 2). However, article 2 of the Uniform Commercial Code does not expressly or by implication provide that it is applicable to guarantees of such contracts, and there is no statutory direction requiring that its provisions supersede the CPLR simply because the undertaking in question is a guarantee of a contract for the sale of goods rather than some other type of contract (see CPLR 201). In light of this, it is appropriate to treat the guarantee as an obligation separate and distinct from, rather than subsumed by, the underlying contract of sale. So viewed, the guarantee is subject to the six-year period of limitations applicable to contracts generally, and therefore it was error for the courts below to dismiss as time-barred this action against defendant.

An alternative ground for our holding is simply that defendant’s guarantee, apart from the underlying sales contract, covered the trade acceptances furnished to plaintiff by Kinematix, and therefore this action was timely since it was commenced within the six-year period for bringing an action on such trade acceptances. This is not to consider whether defendant guaranteed payment on the trade acceptances to persons not party to the contract of guarantee. As to American, however, since the guarantee covered performance and therefore payment on the trade acceptances, it should be entitled to look for payment from defendant thereon. In relevant part, the agreement states that payment by Kinematix "shall be evidenced by trade acceptances” and, as noted, defendant guaranteed "full performance by Kinematix of all the terms and conditions of this agreement on the part of Kinematix to be performed.” Since defendant guaranteed performance of the terms and conditions of the agreement, which in this respect required payment by means of trade acceptances, the guarantee must be interpreted as including payment according to and as provided in the agreement (Catskill Nat. Bank v Dumary, 206 NY 550, 556). Therefore, as defendant’s undertaking, properly viewed, guaranteed payment evidenced by trade acceptances, despite various assertions to the contrary, an action commenced against defendant by American on the trade acceptances would not be time-barred.

Accordingly, for the reasons stated, the order of the Appellate Division should be reversed, with costs, and defendant’s motion to dismiss the complaint denied.

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

Order reversed, etc.


source: Caselaw Access Project

author: Gabrielli, J.

license: Public Domain

text:
    Peter Mancini et al., Appellants, v Junius T. S. Bard et al., Respondents.
    Argued May 5, 1977;
    decided June 14, 1977

      Joseph P. Kirley for appellants.

      Andrew J. Fiore for respondents.
   Gabrielli, J.

In this action, for declaratory relief, somewhat unusual in nature, plaintiffs seek to establish that an easement and right of way over a private road, appurtenant to a particular parcel of land owned by them, may also be enjoyed by two contiguous parcels of land which they subsequently purchased and to which the easement is not appurtenant.

Plaintiffs own a parcel of land abutting Palmer Lane West located in the Town of Mount Pleasant in Westchester County and designated as lot 16B-13 which their predecessor in title purchased from one Alice Gulesian. This parcel enjoyed an easement and right of way over Palmer Lane West, a private road, in common with certain other parcels of land appurtenant to that road and now owned by defendants. This easement was granted to each of the parties or their predecessors in title by Alice Gulesian, their common grantor, when she conveyed to them the afore-mentioned parcels of land. Plaintiffs are also the owners of two other parcels of property, designated as lots 16B-2 and 16C-1 which plaintiffs purchased from other parties subsequent to the purchase of lot 16B-13. The subsequently purchased parcels did not abut Palmer Lane West but enjoyed a right of way over other properties to Virginia Lane, a public highway, which right of way was expressly relinquished by plaintiffs when title was conveyed.

Plaintiffs and defendants are also tenants in common of Palmer Lane West, they or their predecessors having received title from Alice Gulesian. The deed conveying these joint interests contained the following restriction: "The grantees herein do, for themselves, their heirs, assigns and successors [plaintiffs and defendants], agree and covenant with each other that the easement right of each in and over the right of way granted to each of them or their predecessors in the premises herein granted shall remain in full force and effect, and that the easement right of each party is not hereby abrogated, enlarged or restricted” (emphasis added). As indicated, an easement and right of way over Palmer Lane West had previously been granted to each of the parties or their predecessors in title by Alice Gulesian, their common grantor. This easement was not extinguished but remained in "full force” by virtue of the recitation and grant in the deed conveying the tenancy in common in Palmer Lane West, and, by its express language, could not be enlarged. The easement was appurtenant to the property conveyed by Alice Gulesian to the parties or their predecessors in title. Plaintiffs did not obtain title to lots 16B-2 and 16C-1 from Gulesian, nor does the record indicate that their predecessors in title did. These parcels did not independently enjoy an easement or right of way over Palmer Lane West, and in fact, did not abut that street. Thus, the easement benefited only lot 16B-13, the property in connection with which the easement was granted.

The subsequent conveyance of a tenancy in common in Palmer Lane West to plaintiffs’ predecessor specifically limited each party’s rights in Palmer Lane to those enjoyed pursuant to the original easement. Property purchased subsequent to the creation of that easement, and the conveyance of the joint interest in Palmer Lane West, could not therefore impose a new and greater burden on the original easement. It has long been the rule that "the owner of the dominant tenement may not subject the servient tenement to servitude or use in connection with other premises to which the easement is not appurtenant (Williams v. James, L.R. 2 C.P. 577)” (McCullough v Broad Exch. Co., 101 App Div 566, 572, affd 184 NY 592; accord Wilson v Ford, 209 NY 186; 3 Powell, Real Property, § 418, p 526.3). The two additional parcels purchased by plaintiffs were not part of the original dominant tenement and thus could not benefit from the easement appurtenant to that property.

Furthermore, plaintiffs’ tenancy in common in Palmer Lane West does not confer upon them the right to create a new easement for the benefit of property to which the original easement was not appurtenant. It is an equally well-established rule that an owner may not unilaterally, and without the consent of the other owners, subject property held in common to an easement in favor of other property either owned by him alone or third parties (Wilson v Ford, supra, pp 197-198; Palmer v Palmer, 150 NY 139, 149; Crippen v Morss, 49 NY 63, 68; 2 Warren’s Weed New York Real Property, Easements, § 17.01).

We note finally that subdivision 1 of section 5-703 of the General Obligations Law, which is concerned with the creation of interests in real property, is not applicable in this case where we are dealing with a restriction on the use of property. Hence, it was not necessary for plaintiffs or their predecessors in title to have signed the deed conveying the joint interests in Palmer Lane West in order for the restriction on the enlargement of the easement to be binding upon them, since "The grantee having accepted the deed and taken possession under it is bound by the convenants therein contained as effectually as if he had signed them” (1A Warren’s Weed New York Real Property, Deeds, § 13.29; cf. Vogeler v Alwyn Improvement Corp., 247 NY 131, 135).

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

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

Order affirmed.


text:
    In the Matter of Thomas Levin, Respondent, v Norman F. Gallman et al., Individually and Constituting the State Tax Commission, Appellants.
    Argued May 6, 1977;
    decided June 14, 1977

      Louis J. Lefkowitz, Attorney-General (Robert W. Bush and Ruth Kessler Toch of counsel), for appellants.

      John J. Mullally for respondent.
   Memorandum. The judgment of the Appellate Division is reversed, with costs, the determination of the Tax Commission is confirmed, and the petition is dismissed. Petitioner, president of the now defunct Allcrete Corporation, received a notice of deficiency from the New York State Income Tax Bureau for employee withholding deductions which were reported but not remitted to the bureau. Petitioner filed an application for redetermination and a formal evidentiary hearing was held. The hearing officer found that petitioner was the corporate officer responsible for withholding employee income taxes and for filing the appropriate reports with the bureau. It was also found that taxes were withheld from salaries and wages of employees of the corporation for the period July 1, 1965 through December 31, 1965. On or about January 31, 1966 petitioner filed with the bureau a semiannual report of income tax withheld, amounting to $3,986.10, but made no remittance. Subdivision (g) of section 685 of the Tax Law provides: "Any person required to collect, truthfully account for, and pay over the tax imposed by this article who willfully fails to * * * truthfully account for and pay over such tax * * * shall * * * be liable to a penalty equal to the total amount of the tax”. Under this provision a person responsible for collecting and paying taxes withheld from employees’ wages is liable for a 100% civil penalty if he willfully fails to collect and pay over the tax. Petitioner argues that he did not "willfully” fail to pay the tax because the financial plight of the corporation was so deplorable that the necessary funds were not available and he was merely unable to pay.

No prior New York authorities have defined "willful” as used in this statute. Prevailing Federal opinion, in interpreting a similar Internal Revenue Code provision (US Code, tit 26, § 6672) appears to hold that the test is whether the act, default, or conduct is consciously and voluntarily done with knowledge that as a result, trust funds belonging to the Government will not be paid over but will be used for other purposes (see, e.g., Hartman v United States, 538 F2d 1336, 1341; Sorenson v United States, 521 F2d 325, 328; Kalb v United States, 505 F2d 506, 511, cert den 421 US 979; White v United States, 372 F2d 513, 521; Horwitz v United States, 339 F2d 877, 878; Dillard v Patterson, 326 F2d 302, 304; Spivak v United States, 254 F Supp 517, 523, affd 370 F2d 612, cert den 387 US 908; Melillo v United States, 244 F Supp 323, 327; 22 ALR3d 8, 24 et seq.). No showing of intent to deprive the Government of its money is necessary but only something more than accidental nonpayment is required (see, e.g., Hartman v United States, supra; Kalb v United States, supra; Bloom v United States, 272 F2d 215, 223, cert den 363 US 803; 22 ALR3d 8, 24 et seq.). Section 607 of the Tax Law provides that "Any term used in this article shall have the same meaning as when used in a comparable context in the law of the United States relating to federal income taxes” and therefore we adopt the Federal definition of "willful” as so defined.

In the evidentiary hearing before the commission the petitioner has the burden of proving the deficiency assessment improper (Tax Law, § 689, subd [e]), and if there are any facts or reasonable inferences from the facts to support the commission’s determination, the assessment should be confirmed (Matter of Great Lakes Dredge & Dock Co. v State Tax Comm., 39 NY2d 75, 80; Matter of Grace v New York State Tax Comm., 37 NY2d 193, 195-196; Matter of Young v Bragalini, 3 NY2d 602, 605; People ex rel. Hull v Graves, 289 NY 173, 177). The employer was obligated to withhold employee income taxes (Tax Law, § 671) and petitioner, by his own admission, was the corporate officer responsible for these deductions. Any money actually deducted was required to be held as a "special fund in trust for the tax commission” (Tax Law, § 675). Petitioner, fully aware that the money was required to be turned over to the State, testified that he knew deductions were made but never created a separate trust account. Thus, the record contains sufficient evidence to sup-' port a finding that petitioner willfully failed to pay the tax within the meaning of section 685 of the Tax Law in that he knowingly, deliberately and voluntarily disregarded his obligations under the statute. The fact that the money was unavailable for remittal in January, 1966 does not aid the petitioner since it was required that the money be set aside when the deductions were made during the last six months of 1965. The determination of the commission must be sustained.

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

Judgment reversed, etc.


author: Fuchsberg, J.

text:
    The People of the State of New York, Appellant, v Richard Sylvester Anderson, Respondent.
    Argued April 25, 1977;
    decided June 14, 1977

      Lawrence T. Kurlander, District Attorney (Melvin Bressler of counsel), for appellant.

      Peter L. Yellin, Public Defender (Edward J. Nowak of counsel), for respondent.
   Fuchsberg, J.

After his first jury had deadlocked, defendant Richard Sylvester Anderson, Jr.’s second trial resulted in a verdict of guilty of murder. The Appellate Division, in reversing that conviction and ordering a new trial as a matter of law, did so essentially on the ground that an incriminating written statement given to the police by the defendant should not have been received in evidence because it was the product of defendant’s unlawful detention.

The People now appeal, the case having been certified for our review by a Judge of this court. On that review, we conclude there should be an affirmance, but on a different, albeit broader, rationale than that articulated by the Appellate Division.

As we see it, the ultimate question for our consideration is whether, as a matter of law, Anderson’s statement must be found to have been involuntary. The determination of that issue requires us to examine the largely undisputed circumstances under which it was made. These circumstances arose out of the death of one William Alexander, whose body, bullet wounds in its head and face, was discovered late in the evening of November 9, 1972.

No more than three hours later, at approximately 1:,00 a.m. on November 10, the police, in the course of what they later described as part of a "roundup” of the decedent’s friends in order to learn of "some of the activities of the victim”, brought Anderson, then 21 years of age, to an "interrogation room” at police headquarters. Though neither the record of the trial nor that of an earlier suppression hearing tender any proof of probable cause for arrest at that time, the police blotter signifying the time of arrests carries the entry of Anderson’s name as of the time of his arrival. He was then kept there without interruption and without arraignment until he signed an incriminatory statement well over 19 hours later. It is not on that fact alone but on the entire course of events that ensued during that time period on which we focus.

For it is a complex of values that is at the heart of the rule, codified in New York as CPL 60.45, that an extrajudicial confession involuntarily made is inadmissible against an accused (Blackburn v Alabama, 361 US 199, 207). Certainly since at least Brown v Mississippi (297 US 278), it has come to be accepted that the requirement for voluntariness of confessions, though heavily influenced by the privilege against self incrimination (Malloy v Hogan, 378 US 1), is essentially a matter of due process. It is basic that "ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and not by coercion prove its charge against an accused out of his own mouth” (Rogers v Richmond, 365 US 534, 541; see, also, Spano v New York, 360 US 315, 320-321). If the State were permitted so to do, if the route of the short cut of a confession could be pursued when it is unaccompanied by its maker’s exercise of free will, the fundamental principle that the burden of proving guilt is on the accuser rather than the accused could all too readily and effectively be thwarted.

However, crucial as the determination of the voluntariness of a confession may therefore be, such terms as "involuntary” and "coerced” are not simple to define. The difficulty is compounded by the fact that they may be used to describe either circumstances that render a confession inadmissible on the ground of its unreliability on the issue of guilt or innocence (see People v Schompert, 19 NY2d 300, 305; cf. 3 Wigmore, Evidence [Chadbourn rev, 1970], § 822) or ones that invoke societal disapproval of police methods so extreme that they offend our notions of fundamental fairness, or because of both (Spano v New York, supra, at pp 320-321; Lisenba v California, 314 US 219; see, also, Allen, The Supreme Court, Federalism and State Systems of Criminal Justice, 8 De Paul L Rev 213, 235; Paulsen, The Fourteenth Amendment and the Third Degree, 6 Stan L Rev 411, 429-430).

Indeed, except in general terms, the test of involuntariness may be easier to apply than to verbalize. A series of circumstances may each alone be insufficient to cause a confession to be deemed involuntary, but yet in combination they may have that qualitative or quantitative effect (see People v Leyra, 302 NY 353, 363). And, considering the variety of techniques that may suggest themselves to interrogators, it may be undesirable to prescribe inflexible and all-inclusive limitations in advance to guide interrogating law enforcement officers on all occasions. Failure to do so would not necessarily permit resort to coercion with impunity. Such tactics, when applied, tend to tell their own tale. In short, aside from a case where descent to physical brutality may make it obvious that a confession is "inherently coerced” (e.g., Brooks v Florida, 389 US 413; Ashcraft v Tennessee, 322 US 143), the involuntariness of an inculpatory statement may usually best be uncovered by looking at the " 'totality of the circumstances’ ” under which it came about (Clewis v Texas, 386 US 707, 708; Fikes v Alabama, 352 US 191, 197).

Nevertheless, in appraising that "totality”, we now necessarily turn to the specific circumstances of which it is composed in this case. We do so, of course, for the purpose of determining whether the People met its burden of proving , that the statement was voluntary beyond a reasonable doubt (People v Yarter, 41 NY2d 830; People v Huntley, 15 NY2d 72, 78). If it did, the determination of the factual questions on which it is based would not be subject to our review (People v Yarter, supra; People v Leonti, 18 NY2d 384, 390, cert den 389 US 1007), but whether the proof met the reasonable doubt standard at all is a matter of law which we may decide (People v Leonti, supra, at p 389; cf. People v Jackson, 41 NY2d 146, 152; People v Chapple, 38 NY2d 112, 114).

The circumstances here include the following:

1. The more than 19 hours of detention without probable cause was continuous. The interrogation room contained a table and chairs but no telephone or other means of outer communication. Anderson’s detention was confined to that room. The entire atmosphere was one strange to the defendant. As hour after hour dragged on, almost inevitably it had to take on an air of hostility. None but the police, their image permeated with the authority of the State, were admitted to plaintiff’s presence. In particular, there were no friendly or familiar figures to bolster his morale.. No time for his release was ever suggested.

In the face of such not so subtle pressures, elementary principles of psychology tell us that Anderson, unconsciously at least, had to feel that the police had the right to hold him as they were doing, that he would be regarded as recalcitrant if he failed to answer their questions, that they had all the time in the world to query him and that, if he was to be freed, it would be when his answers had satisfied them. It is no doubt such realities that have caused us to say of unlawful detention that it is "one of the factors to be considered on the issue of voluntariness” (People v Johnson, 40 NY2d 882, 883; cf. People v De Tore, 34 NY2d 199, 208-209; People v Herbison, 22 NY2d 946; Brown v Illinois, 422 US 590).

2. The defendant was deprived of sleep during this entire period. His interrogators, who worked in relays, would take their rest, but when Anderson would as much as doze or nod, they immediately shook him to attention. As he had been transported to police headquarters an hour after midnight, his hours in the interrogation room must be added to those which had elapsed since the time he had arisen from his bed on the morning of the day before. The result is that at the time of his confession he was probably at the end of a period of over 30 hours without sleep. To this must be added a comparable deprivation of food during the entire interrogation which, extending from 1:00 a.m. to 8:20 p.m., had encompassed at least three normal mealtimes. It was only when his confession was ready to be made and when the effect of his deprivation of food and rest presumably had taken their toll that frankfurters and coffee appear to have been offered to him, almost in the nature of a reward (cf. Davis v North Carolina, 384 US 737, 741).

The potential effect on human beings of the lack of such elemental needs as sleep and sustenance requires no elaboration. Case law repeatedly has emphasized the vital effect that the resultant "slowly mounting fatigue” may be expected to have on a person’s judgment and will (Spano v New York, supra, at p 320; see, also, Greenwald v Wisconsin, 390 US 519, 521 [no food during 12 hours of custody]; Sims v Georgia, 389 US 404, 407 [no food during eight hours of custody]; Clewis v Texas, 386 US 707, 712, supra).

3. The detention was anything but a passive time for the defendant. Questioning continued without let throughout its long duration. It was conducted by a total of eight or nine officers operating in teams. The exhausting effect of such prolonged and persistent cross-questioning on the mental, emotional and physical state of its target is self-evident. Even allowing for appropriate questioning of suspects by law enforcement officers in the course of their investigation of crime (cf. People v De Bour, 40 NY2d 210, 219), the long and incessant nature of the interrogation here cannot be ignored in reconstructing the total picture of what occurred during the preconfession period in this case (Darwin v Connecticut, 391 US 346, 349; cf. People v Roth, 11 NY2d 80, 88-89).

4. As already indicated, the defendant was isolated from friends and family during this entire period. This happened despite persistent efforts by his mother to see him. Having learned that he was in the custody of the police as early as 3:00 a.m., her attempts were at first diverted by official advice that her son would be home shortly; when this promise proved to be an empty one, she presented herself at police headquarters in person at 8:00 a.m. and thereafter, at least once during most of the following 12 or 13 hours, her requests for access to him were denied. This is no small matter, particularly in circumstances where, for the first 13 hours of his interrogation, it is admitted that Anderson was neither advised of his right to counsel or of his constitutional protection against self incrimination. The incommunicado nature of this confinement too is to be weighed in the scales (see People v Carbonaro, 21 NY2d 271, 278; People v Taylor, 16 NY2d 1038; People v Hocking, 15 NY2d 973; cf. People v Townsend, 33 NY2d 37).

5. Finally, the fact that the defendant was not made aware of his right to counsel until the interrogation had been underway for over 13 hours is not without significance on this inquiry. Whatever its legal effect might be for other purposes, it is very pertinent in establishing the climate that prevailed when the combination of events that led to the confession were building up to their denouement (cf. Clewis v Texas, 386 US 707, 709, supra; Davis v North Carolina, 384 US 737, supra; People v Chapple, 38 NY2d 112, supra).

These circumstances, in combination, make it impossible for the trial court’s finding that the defendant’s statement was voluntary to stand as a matter of law. For, on the totality of this record, since the People failed to prove that the defendant’s "will [had not] been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process” Culombe v Connecticut, 367 US 568, 602 [Frankfurter, J.]).

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

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

Order affirmed.

      . The Appellate Division resettled its order to indicate that the reversal was on the law alone.

      . For some reason, the Appellate Division reversed only the judgment of conviction and did not undertake, as is the usual practice in such a case, to reverse the suppression order as well.


author: Fuchsberg J.

text:
    The People of the State of New York, Appellant, v Miguel Brenes, Respondent.
    Submitted April 28, 1977;
    decided June 14, 1977

      Mario Merola, District Attorney (Daniel J. Sullivan of counsel), for appellant.

      Lawrence Stern and Martin L. Schmukler for respondent.
   Fuchsberg J.

In April of 1972, Miguel Brenes became the subject of an eavesdropping order obtained by the New York City police in the course of its investigation of Brenes’ alleged narcotics violations. Upon the basis of the information garnered from the ^eavesdrop so undertaken, a search warrant was issued and executed. Brenes was thereafter arrested and indicted for narcotics violations. After denial of his motion to suppress the intercepted conversations, derivative physical evidence and inculpatory statements, he pleaded guilty to attempted possession of a dangerous drug in the first degree.

Upon review of the orders denying suppression, a sharply divided panel of the Appellate Division reversed and directed dismissal of the indictment, a majority finding that a "blatant” violation of the minimization requirements of the wiretap statute had occurred and that the appropriate remedy under the circumstances was total suppression of all conversations and the fruits thereof (53 AD2d 78). This appeal by the People is now before us pursuant to leave granted by a dissenting Justice at .the Appellate Division (CPL 460.20, subd 2, par [a]).

In the main, the pertinent facts are as indisputable as they are revealing. Pursuant to the eavesdrop order itself, which named only Brenes as its target and which contained the statutorily required minimization directive, a tap was installed on an instrument listed under his name and located at his apartment. At the hearing to suppress, the People offered the testimony of its chief monitoring agent, as well as that of two Assistant District Attorneys who had been instrumental in securing the order. Their evidence showed that, except for a 14-hour period during which an officer, posing as a telephone repairman, entered defendant’s apartment to install a device in its kitchen, the tap was in continuous operation, 24 hours a day, during the 20 days of tapping.

With the help of a mechanical taping device which automatically activated a recorder whenever the subject phone was used, every conversation—some 743 in all—was recorded at full volume. When the chief monitoring agent would man the tapping plant in person, he did occasionally lower the volume of his overhearing device, but he never turned it off and never disconnected the machines, even when calls he overheard were obviously "nonpertinent.” Only during the five to six hours each day when it was thought that Brenes would be asleep was the tapping plant unmanned, but since the machines continued to record all calls, each of which without exception was later replayed, all 29 conversations that took place during the expected sleeping hours were also recorded and replayed. Some conversations were in Spanish; they were later given to two Spanish-speaking officers who were assigned to the case for interpretation. When unmonitored conversations were replayed, they were described in logs that were kept as if they too had been contemporaneously monitored; no distinction was made between calls which were personally monitored and those which were not.

It is not surprising that, because of these indiscriminate practices, there was, and is, no dispute that entirely "innocent” calls were recorded and that, stored on the tapes, are entire conversations whose irrelevancy to the object of the wiretap should have been obvious to any monitor by any screening standard. Some calls involved children, others attorneys, and still others persons unnamed in the order and presumably unconnected in any way with the criminal enterprise under investigation.

Although the order itself did not provide that the tap should cease upon the obtaining of any particular information, the known purpose of the tap, according to the chief monitoring agent, was to locate the subject’s "stash and connection”. As the Assistant District Attorney in charge of supervising the monitoring officers put it, the objective was to obtain sufficient information to make a seizure of narcotics at Brenes’ apartment or elsewhere. However, when examined as to whether that goal in actual practice served as a limitation, he candidly stated that "for the most part” he had "lost control” of the case after the order was obtained. Indeed, at the hearing, the People introduced no evidence at all of any procedure by which any minimization of calls intercepted, listened to, replayed, described or transcribed was essayed.

It appears unnecessary to here review the authoritative expressions of concern for individual rights, running the gamut all the way from Mr. Justice Holmes now classical prescient "dirty business” dissent in Olmstead v United States (277 US 438, 470) to President Carter’s statement only last month (New York Times, May 19, 1977, p 1), that are at the root of the cautions that must be exercised in granting or executing any permissible order for the invasion of private telephonic communications. Sufficient unto this case is reference to the minimization guidelines we recently articulated in People v Floyd (41 NY2d 245), where we stated that, for the People to meet its initial burden to prove legality of such surveillance, they must show that "procedures were established to minimize interception of nonpertinent communications and that a conscientious effort was made to follow such procedures” (41 NY2d, at p 250).

Necessarily, many variables enter into the determination of whether that burden has been met. Obviously, what may be a reasonable procedure and "a conscientious effort” under the circumstances of one investigation may be unjustifiable under others. The nature and scope of an actual investigation in progress; the character and sophistication of the parties who are its targets and the nature of their expected associates; the extent of the official supervision devoted to each step of the surveillance; the possibility and practicality of determining, contemporaneously with their interception, whether particular conversations are in fact pertinent to the objectives of the investigation; these are among the many factors to be taken into account. Ultimately, in each case, the primary question is whether, realistically considered, there was a good faith attempt to affirmatively avoid interception of conversations unrelated to the crime or crimes authorized to be investigated by terms of the court order by leave of which the authorities were acting.

Turning then to whether, under the circumstances in this case, minimization was achieved, we note at the outset that CPL 700.05 (subd 3) specifically defines interception as inclusive of the recording of conversations. Its requirements therefore are equally applicable to conversations which are overheard aurally and those which in the first instance are mechanically recorded.

We reject any suggestion, however, as we did in Floyd (see 41 NY2d, at p 250, n 4, supra), that total interception, be it aural or by tape, constitutes, without more, a per se violation of the statutory and constitutional requirements; in a rare case, a decision to use automatic and continuously operating recording machines might constitute a reasonable effort to achieve lawful seizures by the only practicable procedure available, as, for example, where, due to some peculiarity in the location of the subject phone, a live monitoring agent might be detected, or where, perhaps, a target suddenly and unexpectedly begins to speak in a foreign language that is strange to the community and not subject to interpretation until experts are found. In such situations, courts have found that it may be permissible to protect privacy interests by establishing procedures to minimize perpetuation of the conversations (see, e.g., United States v Manfredi, 488 F2d 588, 600, n 9, cert den 417 US 936, which suggests that erasure of nonpertinent calls might suffice). In the present case, there is no suggestion that any attempt at minimization would have totally frustrated the purposes of the tap.

Thus, the bare statistic that every conversation was intercepted does not control. Rather, as noted, the inquiry must at all times be addressed to whether, despite the fact that some "innocent” conversations were perpetuated, practicable procedures could have been fashioned at its inception to avoid the interception, for it is indiscriminately intrusive conduct by the police that the minimization safeguards seek to control. (See, generally, Comment, Post-Authorization Problems in Use of Wiretaps: Minimization, Amendment, Sealing and Inventories, 61 Cornell L Rev 92.)

With the inquiry thus focused on the evidence of good faith efforts in this case, we hold that, since the record before us indicates not only that no procedures to limit interception were established but none were even attempted, the People have not satisfied their burden.

Specifically, we are not persuaded by the People’s argument that the greater difficulty of determining pertinence in a case involving a target who speaks a foreign language is enough to justify neglect of any éffort to achieve contemporaneous minimization. Certainly, it came as no surprise to the New York City officers who pursued the investigation of defendant’s activities that Brenes and his confederates might speak Spanish on the telephone. In fact, as indicated, two Spanish-speaking officers were assigned for the later indiscriminate interpretation of such conversations; it hardly would have taken much more effort to assign others so qualified to the initial monitoring so that patterns of innocent conversation could have had the protection of early detection and been eliminated from future interception.

Moreover, whatever breadth of interception the order may have authorized, it most certainly did not allow carte blanche surveillance. Nor was the failure to take minimization steps here fortuitous. No attempt to define "pertinence” was ever made and instruction with regard to it is not shown to have been given to the agents who executed the warrant. It goes without saying that, if minimization is to be carried out in good faith, police officers conducting interceptions must know what and how to minimize. Here, once the tap order was signed, the supervising attorney’s loss of "control” left the police officers without his guidance. This was the opposite of what was required. Presearch guidelines—as well as mid-search re-evaluation—by responsible State attorneys are crucial (see United States v Bynum, 360 F Supp 400, 413-414).

Having concluded that total disregard for the minimization requirements imposed by statute offends the constitutionally based prohibition against general searches in which they are rooted (Berger v New York, 388 US 41; Katz v United States, 389 US 347), we now give our attention to the appropriate remedy, a question which has been the subject of considerable debate.

On that question, at least three theories have been advanced by courts and commentators. First, it is urged, on a deterrence rationale, that there should be total suppression when a failure to comply with the statutes has been shown (see, e.g., United States v Focarile, 340 F Supp 1033, 1046-1047 [dictum], affd sub nom. United States v Giordano, 469 F2d 522, affd 416 US 505; People v Castania, 73 Misc 2d 166; People v Holder, 69 Misc 2d 863). A second approach, analogous to the "overextended search” doctrine of search and seizure law, would permit suppression of only those conversations that should not have been intercepted under the wiretap order (see, e.g., United States v Sisea, 361 F Supp 735, 746-747, affd on other grounds 503 F2d 1337, cert den 419 US 1008; People v Solomon, 75 Misc 2d 847 [Scholnick, J.]). the third has been dubbed the "double-standard” approach; it would rest the extent of the remedy on whether minimization was unsuccessful or whether none was attempted at all (United States v Lanza, 349 F Supp 929, 932; United States v Leta, 332 F Supp 1357, 1360; see, generally, Note, Minimization of Wire Interception, 26 Stan L Rev 1411, 1432-1438).

The People urge that, given the difficulty of avoiding interception of nonpertinent conversations, it would be "unduly harsh” to suppress all fruits of an unminimized interception and that such a "blanket suppression rule” would "hamper the effectiveness of a wiretap as a law enforcement tool.” However, though no "blanket rule” need be stated, a distinction must be drawn between, on the one hand, cases where, as here, the order is executed as if in defiance of the existence of statutory and decisional minimization requirements and, on the other, cases where in retrospect it appears that the minimization efforts have merely fallen short. While an unlimited intrusion requires a remedy as broad as the unlawful act, a limited one may not. Since, in our view, the present case falls within the first category, total suppression was warranted (cf. United States v Principie, 531 F2d 1132, 1140, cert den 430 US 905).

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

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

Order affirmed.

      . Two members of the Appellate Division also would have held the conversations and derivative evidence suppressible on the ground that the wiretap order was improperly issued in its inception. They were of the opinion that the People had failed to make a sufficient showing, as required by CPL 700.15 (subd 4), that "normal investigative procedures” were pursued unsuccessfully or "reasonably appealed] to be unlikely to succeed if tried”. While that issue has been litigated on the present appeal, since our holding on the minimization issue will be dispositive, it is unnecessary for us to reach that question.

      . As required by CPL 700.30 (subd 7), the order, dated April 25, 1972, stated that execution of the warrant "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to eavesdropping”. It authorized interception until the expiration date of the order, May 27, 1972. There was no provision for an earlier triggering of termination by the interception of any particular conversation. In fact it was discontinued on May 16.

      . Although, at the trial, the District Attorney had estimated that 60% of the calls were "pertinent”—a figure apparently accepted by the Trial Judge—appellant, on the basis of an analysis of the logs and transcripts undertaken for the purposes of the appeal, has concluded that, "[o]f a total of 743 calls, 80 incoming calls received either a busy signal or no answer. Of the remaining 663 calls, only 119 were pertinent” (i.e., accepting the accuracy of the notations in the logs themselves). Of the remaining 544 calls, 132 were in Spanish.

      . This would have been perfectly convenient as well as practical. Of New York City’s cosmopolitan population, current statistics published by the Strategy Research Corporation in its annual Spanish Market Analysis indicates that over 1,400,000 of its residents speak Spanish. The wide use of that language has also led to the adoption of a provision of the New York City Civil Court Act (§ 401, subd [d]), which requires that summonses isued in consumer credit transactions be printed in Spanish as well as English.

      . The discussion of appropriate guidelines to aid in the formulation of instructions on pertinence in People v Floyd (see 41 NY2d 245, 251-253, supra) makes it unnecessary for us to discuss them here.


text:
    The People of the State of New York, Respondent, v Frank J. Easley, Appellant.
    Argued May 3, 1977;
    decided June 16, 1977

      Michael J. Obus, James J. McDonough and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (William C. Donnino, Anthony J. Girese and Steven R. Bernhard of counsel), for respondent.
   Fuchsberg, J.

The defendant, Frank J. Easley, was charged with the commission of the crime of rape in the third degree for engaging in sexual intercourse with one Rita Waller, who, though past her seventeenth birthday, the present age of statutory consent (Penal Law, § 130.05, subd 3, par [a]), was alleged to have been incapable of consenting to such an act because she was "mentally defective” (Penal Law, § 130.25, subd 1; § 130.05, subd 3, par [b]). He now appeals from an order of the Appellate Division affirming a judgment of conviction entered against him after a trial by jury. '

Defendant relies in the main on three propositions: (1) that the trial court committed reversible error when, in instructing the jury on the law, it charged that Ms. Waller’s appreciation of the "moral quality” of the sexual act in which she had participated was a factor to be considered in determining whether she lacked capacity to consent, (2) that, in any event, on the record here, as a matter of law the People failed to prove beyond a reasonable doubt that Ms. Waller was "mentally defective” within the compass of section 130.05 and subdivision 5 of section 130.00 of the Penal Law and (3) that section 130.10 of the Penal Law, under which it would be an affirmative defense if Easley established that he "did not know of the facts or conditions responsible for such incapacity to consent”, deprived him of due process of law by shifting the burden of proof on that question from the People to the defendant. For the reasons which follow, we do not find that any of these contentions warrant a reversal.

Preliminarily, we note these facts:

It was conceded that the act of sexual intercourse on which the prosecution is based took place. It happened at the home of Rita Waller’s grandmother, with whom she had resided since early childhood. Easley was a family friend; for five years immediately preceding the occurrence he was a close neighbor and shortly before the time when the crime of which he was convicted was committed he had actually been a member of the grandmother’s household for three weeks. Presumably on the basis of the knowledge he had so gained, though contending that Ms. Waller’s mental state was not such as to bring it within the embrace of the statute, for all practical purposes he did not deny that he was aware of her condition as it was developed at the trial.

The evidence of that condition included two separate psychological tests performed under the aegis of the special school for the mentally retarded which she attended. One test had been conducted in 1967, when she was 10 years of age; the other, in 1974, was administered shortly before the episode with which we are here concerned. They placed her I.Q. in the 45-54 range, the "moderately retarded” classification (see 9 Encyclopedia Britannica [15th ed], p 673).

The school psychologist, who had observed her hundreds of times at two or three week intervals over a period of 10 years, described her as having "very little control over her impulses”, as "over-anxious” and "dependent”, as at times "difficult to understand and communicate with” and as given to regressive infantile behavior. It was the psychologist’s professional opinion that Ms. Waller was limited in her understanding to "concrete” as opposed to "abstract” matters to a degree where her conceptual comprehension in general, and that of sexual relations in particular, was at the level of an eight-year-old child. She also testified that, while it was possible for Ms. Waller to respond sexually if stimulated, and while she was physically capable of "indulging] in the concrete act of sexual intercourse” and of comprehending that it could result in "having a baby”, she was incapable "of thinking beyond the act in terms of what its consequences could be”.

The grandmother also took the stand. Her testimony was confirmatory of that of the school psychologist as to Ms. Waller’s mentality, demeanor and rapport. She related that she and the defendant had had occasion to discuss this condition. She also described how, over the years, her attempts to broach the subject of sex to her granddaughter had met with almost total incomprehension.

Examined by the court for the purpose of determining if she could be sworn, Ms. Waller did not know what telling the truth meant. As a result, without objection, she testified without affirming or taking an oath. The record reveals that her performance as a witness was replete with shouting, giggling, crying, incoherence, emotionalism and other inappropriate behavior. In the end, defense counsel, in his summation, thought it best to acknowledge to the jury that "after observing her * * * along with you, you would have to agree she is mentally retarded.” ‘

Before arraying this proof against the provisions of subdivision 1 of section 130.25 and section 130.05 of the Penal Law, it is also well to note that those statutes are consonant with the general principle that "consent given by one who is mentally inadequate is no consent at all” (see Marks and Paperno, Criminal Law in New York under the Revised Penal Law, § 249; 65 Am Jur 2d, Rape, § 9, pp 766-767; Rape—Mentally Deficient Woman, Ann., 31 ALR3d 1227, esp p 1234). This principle, equally applicable, for instance, where capacity to marry or to contract are at issue, bespeaks society’s special concern for the protection of those lacking capacity to consent (Lindman, Mentally Disabled and the Law [American Bar Foundation, rev ed], p 226; 1 Foster & Freed, Law and the Family, §§2:3, 3:3, 18:37; see Domestic Relations Law, §7, subd 2). In the context of the law of rape, it is reasoned that "[w]hen a man has sexual intercourse with a woman who * * * does not know the nature of intercourse, he has deprived her absolutely of sexual choice and therefore deserves punishment as a rapist, though his victim was unaware of the invasion of rights when it occurred” (Comment, Towards a Consent Standard in Law of Rape, 43 U of Chi L Rev 613, 634).

Specifically, subdivision 5 of section 130.00 of the Penal Law, the definitional section of the statutory scheme under which the defendant here was indicted, succinctly states that "mentally defective” means a person who "suffers from a mental disease or defect which renders him incapable of appraising the nature of his conduct”. The very breadth of this language no doubt reflects the fact that whether a particular defendant’s sexual partner’s mental condition comes within the statute cannot be determined in accordance with precise and inelastic standards.

That is particularly so since the law does not adopt the fiction that all persons are mentally or judgmentally equal. As do all others, the mentally aberrant differ from one another in greater or lesser degree. Even mental retardation does not mean that an individual is incapable of consenting as a matter of law. The requisite degree of intelligence necessary to give consent may be found to exist in a person of very limited intellect (see 1 Wharton, Criminal Law and Procedure, § 310; Hacker v State, 73 Okla Cr 119). Crucial to a determination may be how such a person actually functions in society (Lindman, Mentally Disabled and the Law [American Bar Foundation, rev ed], p 226). It therefore behooves a Trial Judge, in any elaboration or explanation he includes in the instructions he gives to a jury to aid it in understanding and applying the statutory definition, to do so with extraordinary care (see People v Odell, 230 NY 481, 487-488).

In the present case, after twice reading the statutory definition, the Trial Judge added:

"Consent has been defined in one of the cases as requiring the exercise of intelligence based upon knowledge of its significance and moral quality.
"It has also been defined, or capacity to consent has been defined in this relationship, as presupposing the mental capability to form an intelligent opinion on the subject with an understanding of the act, its nature and its possible consequence.”

The defendant excepted to that charge and now maintains that the use of the term "moral quality” was improper. We reject that contention.

The source of the portion of the charge in question appears to have been People v Palvino (216 App Div 319), in which the Appellate Division, Fourth Department, stated (p 321): "Consent to such an act requires the exercise of intelligence, based upon knowledge of its significance and moral quality”. In Palvino the woman with whom the defendant had engaged in sexual intercourse was an escapee from a State institution for epileptics and feebleminded to which she had been committed; her mental age was seven years and two months. Significantly, the court also noted the finding that (p 321) "this female had no sound mentality, and was not able to appreciate the nature of the act” (emphasis added).

Palvino was decided under former subdivision 1 of section 2010 of the Penal Law, the present subdivision 5 of section 130.00’s predecessor. The statute then in force defined the mental condition that would render a female "incapable of giving consent” as one beset by "idiocy, imbecility, or any unsoundness of mind, either temporary or permanent” (emphasis added). However, despite the difference in terminology, it is recognized that the words of the later statute were intended to do "no more than to state the same abnormality in language employed by contemporary psychiatry”. (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 130.00, p 447.) The key phrases in the two statutes are "incapacity to give consent” in the old one and "incapable of appraising the nature of his conduct” in the present one.

An ability to "appraise” is, of course, a qualitative matter, all the more so when the appraisal is one to be made of the "nature” of "conduct”, with the variety of factors that the one "appraising” may have to take into account for such purposes. Cognitive understanding is involved. In a case such as the one before us, it includes being substantially able to understand what she was doing (see 1 Dowsey, Charges to Jury and Requests to Charge in a Criminal Case, Form 119). An understanding of coitus encompasses more than a knowledge of its physiological nature (see People v Boggs, 107 Cal App 492). An appreciation of how it will be regarded in the framework of the societal environment and taboos to which a person will be exposed may be far more important. In that sense, the moral quality of the act is not to be ignored.

That is to be distinguished, however, from the participating woman’s personal sense of morality. Whether her character is exemplary or depraved is besides the point. The object is not to probe the degree of her conformity or nonconformity to the norms of society. A knowing defiance of social mores, a mere yielding to temptation or passion, even an inclination to vice, these are not the concern of this statute.

But to flout society or to arraign oneself against its views is entirely different from having an understanding, or the capacity to understand, that one is doing so. Whether there is an awareness of the social or other cost of one’s conduct is a legitimate area of inquiry in determining whether one is so mentally defective that the protective shield of section 130.05 of the Penal Law is invoked. Such inquiry should of course include the question of whether the person whose mentality is being judged has insight into the "consequences” of conduct for which the law exacts criminal penalties.

But that is not enough. The law does not mirror all prevailing moral standards (Schwartz, Moral Offenses and the Model Penal Code, 63 Col L Rev 669). Therefore, there also needs to be inquiry as to whether there is a capacity to appraise the nature of the stigma, the ostracism or other noncriminal sanctions which society levies for conduct it labels only as immoral even while it yet "struggles to make itself articulate in law” (see Cardozo, Paradoxes of Legal Science, pp 17, 41-42). Put in terms of this case, in its determination of Ms. Waller’s capacity to appraise the sexual act, its significance and its consequences, the jury may very well have been required to consider the "moral quality” of the act as it would be measured by society and to assess as well her ability to appreciate that fact (cf. People v Wood, 12 NY2d 69, 76-77; People v Schmidt, 216 NY 324).

With these considerations in mind, it was well that the Judge’s charge did not resort to pedantry, but broadly spoke of "the exercise of intelligence”, of "knowledge of the significance” of the thing consented to, of "mental capability to form an intelligent opinion”, of "an understanding of the act”, of its "possible consequence” and of its "nature”. These he mentioned in the conjunctive along with his reference to "moral quality” and they therefore served to qualify that expression. There was no suggestion that the determination of the presence or absence of mental defect could turn on Ms. Waller’s own appreciation of the "moral quality” of her act of sexual intercourse alone; indeed, no special emphasis was put on that factor. Indeed, no factor was elevated over the others and the effect was to present a blend of all these considerations. This encouraged the jury to more freely decide the weight to be accorded to each factor against the perspective of the total picture.

Moreover, the charge did not suggest that Ms. Waller’s own personal moral behavior or sense of values, as distinguished from her awareness of the prevailing moral code, was to enter into the equation by which her "mental capability to form an intelligent opinion on the subject” was to be judged. That would have constituted an impermissible attempt to control her own moral behavior (see Commentary to American Law Institute Model Penal Code, § 207.1 [Tent Draft No. 4], p 204 et seq.).

An examination of the American Law Institute Model Penal Code, whose language is embodied in our New York Penal Law, makes that especially clear. Both codes use the identical words "the nature” in speaking of the quality of the conduct. The Commentary to the Official Draft of the Model Code expressly states that it was "by specifying that the woman must lack capacity to appraise 'the nature’ of her conduct, [that] we make it clear that we are not talking about appraisals involving value judgments”. (Commentary To Proposed Official Draft [1962], § 213.1, subd [2], par [b].) As already indicated, the trial court used that very phrase "its nature”, as indeed had the court in Palvino, to accomplish the same purpose. And while it may have been preferable to explicitly set out the dichotomy between Ms. Waller’s own sense of morality, on the one hand, and her appreciation of society’s sense of morality, on the other, given the one-sided proof of her long-standing and essentially undisputed condition in this case the failure to do so was harmless.

Furthermore, we conclude that, by the standards the charge articulates, there was sufficient proof on the basis of which the jury had a right to find, as it did, that Ms. Waller was a mentally defective person under the statute beyond a reasonable doubt.

We turn now to defendant’s assertion that section 130.10 of the Penal Law is unconstitutional because it placed the burden of proving that he was unaware of Ms. Waller’s incapacity at the time he engaged in the conduct constituting the sex offense on him. In support of his position he relies largely on Mullaney v Wilbur (421 US 684) (but see People v Patterson, 39 NY2d 288, probable juris noted 429 US 813). The People, on the other hand, argue that knowledge of the mental defect is no more part of the required mens rea of the crime charged than in the statute prohibiting extramarital sexual conduct with females younger than 17, that the affirmative defense was no more than an ameliorative device (see People v Patterson, supra, esp concurring opn [Breitel, Ch. J.]) and that, in any event, Mullaney would at most require New York to convert the affirmative defense into a "defense” which defendant would have been required to, but here did not, place in issue.

However, we find ourselves unable to reach the merits of that issue and the subsidiary questions it gives rise to since, as the People correctly point out, after both sides had rested, counsel for defendant, whose thrust throughout the trial had been to controvert the claim that Ms. Waller’s condition came within the statute rather than whether Easley was aware of it, indicated that no such defense would be made. Indeed, he reiterated that statement during a colloquy with the prosecutor outside the presence of the jury during the People’s summation, leading the court at that time to indicate, without objection, that it would charge the affirmative defense out of the case. It in fact did so. The matter was thus placed beyond our review (People v Robinson, 36 NY2d 224).

Finally, we note that an additional question raised by the defendant, that is whether he was unconstitutionally sentenced as a second felony offender on the basis of a previous conviction in the State of Virginia, must be determined adversely to him on the authority of our recent decision in People v Parker (41 NY2d 21), which is dispositive of that issue.

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

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

Order affirmed.

       "Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if * * * he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct”. (American Law Institute Model Penal Code, § 213.1, subd [2], par [b].)


author: Chief Judge Bkeitel.

text:
    In the Matter of the Claim of Louis Pfeffer, Appellant, v Parkside Caterers, Inc., et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted April 26, 1977;
    decided June 16, 1977

      Burton J. Jacowitz for appellant.

      Joseph F. Manes and Peter M. Pryor for respondents.
   Chief Judge Bkeitel.

This is a simple case. The issue on appeal is whether the Workmen’s Compensation Board which denied claimant the higher benefits he seeks rested its decision on substantial evidence.

The hearing referee determined that claimant was not entitled to the higher benefits he seeks. There were three separate hearings before the referee, two after remittal by the board. The board considered the matter on at least two separate occasions and unanimously affirmed the referee’s last determination. The Appellate Division affirmed the board’s decision by a three to two vote, and this sharp division occasions the discussion which follows.

Claimant, who was a 77-year-old banquet waiter at the time of the industrial accident which caused his injuries, seeks workmen’s compensation benefits based on a formula applicable to occasional employees who are fully available for employment. Claimant responded to job requests through his labor union over weekends and some weekdays. The question before the board, whose determination is not to be disturbed so long as supported by substantial evidence, was whether claimant limited his availability for work, and hence his earned income, in order not to overtax his failing capacities.

The legal rule is that one who is not fully available, voluntarily, for the occasional employment in which he is purportedly engaged may not qualify for the same workmen’s compensation benefits as if he were so available (see, e.g., Matter of Ruppert v Plattdeutsche Volksfest Verein, 263 NY 338, 341; Matter of Jacob v Town of Glenville, 43 AD2d 409).

Claimant is now 85 years old, and this case has been litigated for almost eight years since the 1969 industrial accident. The board found that claimant suffered a 75% loss of use of his left leg. Apart from medical expenses, claimant was awarded $9,417.60 based on 216 weeks’ compensation at $43.60 per week. The compensation was premised on a weekly wage of $65.39. Claimant seeks more based on a formula which assumes that claimant was fully available for employment (see Workmen’s Compensation Law, § 14, subd 3). That is, he claims a weekly wage of $186.54, a sum he had not earned for years, and which, if he had, would have in the earlier years cost him the loss of Social Security benefits.

The law, in this field, as with other areas of administrative agency review, is that the determination of the agency is conclusive if there is substantial evidence to support it. Moreover, the drawing of inferences of fact is solely the province of the administrative agency. (E.g., Matter of Holland v Edwards, 307 NY 38, 44; Matter of Avon Bar & Grill v O’Connell, 301 NY 150, 153; 1 NY Jur, Administrative Law, § 192.)

In his brief to this court claimant concedes that the evidence to support voluntary limitation of his income is ambiguous. Of course, the resolution of ambiguities is a fact-finding function, and therefore the sole province of the administrative agency.

This is the evidence from the record. On April 26, 1971 claimant testified:

"Q. How old are you?
"A. 79.
"Q. Are you on Social Security?
"A. Yes.
"Q. How much do you get?
"A. Me and my wife?
"Q. Your share.
"A. I don’t know.
"Q. How much do you get?
"A. $235.90; me and my wife.
"Q. Your’re 79 years of age?
"A. Now.
"MR. NACHBAR: Our contention is he is a part-time worker, works weekends occasionally.
"Q. Do you limit your income?
"A. That’s right.
"Q. Only when you have an opportunity to work?
"A. The union sent me to work.”
On December 20, 1971, after ample opportunity to review his prior testimony, claimant testified:
"Q. Are you working, sir?
"A. No.
"Q. Why not?
"A. I’m disabled.
"Q. How old are you?
"A. 79.
"Q. Did you limit your earning capacity after you reached 65 years?
"A. Pardon?
"Q. Did you limit your earnings?
"A. No. I worked as much as I could, as much as they gave me.”

Particularly significant is that claimant’s income tax forms (whether returns [U. S. 1040] by claimant or information returns [U. S. W-2] by the employer produced by claimant is not clear) show that he earned only $1,227 in the calendar year 1969. His union, however, reported that he earned $3,492 in that period. Again, the discrepancy was for the fact finder to resolve, and it was evidently resolved in favor of claimant.

Whether the testimony supply ambiguity, rather than self-contradiction, in either event it was the board’s and not this court’s responsibility to construe. In construing the claimant’s ambiguous or self-contradictory testimony, the board was entitled to consider the claimant’s demeanor, the time interval between the April and December testimony, his advanced age, the claimant’s possible desire to limit his working burdens toward the end of his eighth decade, and the possible motivation of self-interest to increase his workmen’s compensation benefits or to protect his Social Security income. And certainly the board was entitled to draw upon its experience with many thousands of cases. Moreover, the courts are aware of the generous and liberal social policy applied by the board and the agency throughout its history since the inception of the first valid Workmen’s Compensation Law in 1913.

There is, if claimant’s version of the contradictory proof be accepted, an immaterial "misstatement” in the board’s finding that claimant worked only on weekends. The dissent at the Appellate Division made much of this. The ultimate issue was not when claimant worked, but whether he deliberately limited his employment in order not to overtax himself. So too, it is immaterial that the dissent at the Appellate Division misstated the issue as whether claimant limited his income in order not to impair his Social Security benefits.

Of course, because the issue was one of fact, with substantial evidence to support either view, the board could have concluded otherwise, and if it had then the decision in favor of claimant would have been invulnerable on judicial review (compare Matter of Jacob v Town of Glenville, 43 AD2d 409; supra; Matter of Winter v Camp Scatico, 7 AD2d 812; Matter of Derion v Gilford Mfg. Co., 282 App Div 788, with Matter of Gurewicz v 107 N. Fifth St. Corp., 48 AD2d 990; Matter of Zoeller v Fulton Stor. Warehouse Co., 33 AD2d 1084).

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

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

Order affirmed.


text:
    Henrietta G. Christian, Respondent, v William L. Christian, Appellant.
    Argued February 17, 1977;
    decided June 9, 1977

      Stephen W. Schlissel and Charles S. Sherman for appellant.

      George R. Hoffman for respondent.
   Cooke, J.

Marriage being a status with which the State is deeply concerned, separation agreements subjected to attack are tested carefully. "A court of equity does not limit its inquiry to the ascertainment of the fact whether what had taken place would, as between other persons, have constituted a contract, and give relief, as a matter of course, if a formal contract be established, but it further inquires whether the contract [between husband and wife] was just and fair, and equitably ought to be enforced, and administers relief where both the contract and the circumstances require it” (Hen dricks v Isaacs, 117 NY 411, 417; Hungerford v Hungerford, 161 NY 550, 553).

We review here the grant by the Appellate Division of a divorce to one spouse, because of a living separate and apart by the marital parties pursuant to a separation agreement as provided by statute (Domestic Relations Law, § 170, subd [6]), and, more particularly, the declaration that a portion of the agreement, which stipulated that there be an equal division of certain securities, was null and void.

Henrietta Christian and William Christian were married in 1958. Five years later a daughter was born and, about two years thereafter, a son. The husband, the holder of a degree in mechanical engineering, was the vice-president in charge of manufacturing for a metal fabricating concern. The wife in time had acquired a master’s degree in social work and held a position at a school for girls. Unfortunately, differences arose and, following a bit of marriage counseling, they entered into a separation agreement on January 15, 1972. At that time, the husband’s employment earnings were $40,000 a year and the wife’s $10,000. In addition, both also had separate unearned income.

The agreement contained a section numbered "6”, entitled "Division of Property”. In it, provisions were made with reference to such items as the family residence, automobiles, household furnishings, hospital, medical and dental care policies and life insurance. The section concluded with the paragraph: "During the period of the separation assets held in individual name shall continue to be so held and all joint assets shall continue to be held jointly. In the event that the parties are divorced all assets held by the parties in their joint and individual names on January 1, 1972, a list of which properties is appended hereto as Schedule A, shall be divided equally between the parties so that the Husband shall take one-half of all assets held by the Wife in her individual name on January 1, 1972 and she shall take one-half of all assets held by the Husband on that date. It is the intent of the parties that so far as economic circumstances of the parties permit the money which each receives from the other shall be preserved and left by Will to the two children, Christine and Keith.” No mention was made of support of the wife, but the husband covenanted to pay $100 a week for the children.

This action was commenced in August of 1972 by the plaintiff wife for divorce on the ground of cruel and inhuman treatment, pursuant to subdivision (1) of section 170 of the Domestic Relations Law. The defendant, in the following January, served an amended answer containing a counterclaim for divorce predicated on the living separate and apart by the parties since the execution of the separation agreement, a period in excess of one year, and the due performance by defendant of all of the agreement’s terms and conditions. The answer also prayed that the separation agreement be incorporated but not merged in the judgment and for such other relief as would be just. For her reply, plaintiff denied the essential allegations of the counterclaim and asserted affirmative defenses to the effect that the agreement was procured as a result of fraud, misrepresentations and concealment, was the product of coercion and duress, was made without consideration and violated public policy.

During a nonjury trial, plaintiff’s complaint was dismissed for failure to make out a prima facie case. Following full submission of proof, Supreme Court declared the separation agreement null and void for fraud, set it aside in its entirety, dismissed the husband’s counterclaim, and ordered the parties to co-operate to effect a reconciliation and resumption of the marital relationship. The last paragraph of section "6” of the agreement was examined. Noting that the husband was aware that his stocks listed in the schedule were worth’$200,000 while those of the wife had a value of $800,000 to $900,000, that the wife contended that she had no idea of the relative values of the securities, that the husband cleverly maneuvered the retention of the attorney who ostensibly represented the wife and drew the agreement, that neither party informed the attorney of the values of the stock being split, it was concluded that the husband’s conduct in procuring the drafting of the agreement and in concealing from the attorney the details of the distribution of assets constituted such fraud as to vitiate the agreement completely.

The Appellate Division unanimously reversed, on the law and the facts, granted defendant husband’s counterclaim for divorce and declared the last paragraph of provision "6” of the parties’ agreement null and void. It was held that the record did not support Supreme Court’s findings of fact to the effect that defendant was guilty of fraud or overreaching with regard to the formulation or signing of the agreement, that plaintiff failed to sustain her burden of proof as to her affirmative defense of fraud in the inducement. Insofar as the parties had lived separate and apart pursuant to the agreement, properly executed and filed, and adhered to its terms for more than a year, thus fulfilling the statutory requirements, defendant was held to be entitled to a decree of divorce. In the Appellate Division’s view, the wife was not represented by an attorney acting solely in her interests and her knowledge of financial matters was not equal to that of her husband. In the light of these facts, the relative value of the listed securities to be divided and the high price plaintiff apparently was prevailed upon to pay for her husband’s signature to the separation agreement, the last paragraph of provision "6” was held to be so unconscionable as to be unenforceable.

With the enactment of the Divorce Reform Law of 1966 (L 1966, ch 254), New York abandoned its position as the only State in the union which regarded adultery as the sole ground for absolute divorce. Under a new section 170 of the Domestic Relations Law, an action for divorce may be maintained on any one of six grounds, including adultery, the scope of which was extended by definition (subd [4]). Cruel and inhuman treatment, abandonment and imprisonment were joined as bases for the action (subds [1], [2], [3]). Finally, under the last two subdivisions, two new grounds for absolute divorce were specified—living apart pursuant to a separation decree or judgment and living separate and apart pursuant to a written separation agreement (subds [5], [6]).

These last two bases have become known as the "no fault” grounds, since they were designed to make separation a ground for divorce, regardless of fault, as long as the authenticity of the separation is supported by a separation decree or agreement (see Foster & Freed, Matrimonial Law [rev ed, 1973], p 29). "The decree [or agreement] is simply intended as evidence of the authenticity and reality of the separation” (Gleason v Gleason, 26 NY2d 28, 35). This requirement as to a separation decree or agreement is peculiar to New York and reflects legislative concern over the fraud and collusion which historically infected divorce actions involving adultery. At the 1966 legislative session, the original broad proposal for a "living separate and apart” ground, as incorporated in the Wilson-Sutton Bill, at first rejected in the so-called "Leader’s Bill”, was finally incorporated in the compromise bill, conditioned on the requirements that there be a formal and filed written agreement and that the party seeking to come within the embrace of such ground prove that "he or she has duly performed all the terms and conditions of such agreement” (1 Foster & Freed, Law and the Family, pp 264, 333, n 9; p 337; Foster & Freed, The Divorce Law Reform [1970], p 22; see Littlejohns v Littlejohns, 76 Misc 2d 82, 86, affd on opn at Trial Term 42 AD2d 957).

Divorces provided for in subdivisions (5) and (6) are also referred to as "conversion” divorces in that they permit the conversion of a judicial separation decree or separation agreement into an absolute divorce decree. In Gleason, an action under subdivision (5), it was held that "the statute, as a whole, points [to] the construction that all that has to be proved is that there is some kind of formal document of separation * * * that the plaintiff has complied with its terms and that the parties have lived apart” pursuant to the document for the statutory period (p 37).

It was the legislative intent to provide these nonfault grounds for divorce where marriages are dead, based on a recognition that it was morally and socially desirable, to society and to the parties to such a union, to enable them " 'to extricate themselves from a perpetual state of marital limbo’ ” (Gleason v Gleason, 26 NY2d 28, 35, 37, supra). The "vital and operative” fact, in subdivision (6) divorce cases, is the actual living apart of the parties—pursuant to the separation agreement (cf. id., p 37). Put a bit differently, the function of the document is "merely to authenticate the fact of separation” (cf. id., p 37). Once there has been a separation for one or more years (L 1970, ch 835, § 2) supported by the prescribed separation agreement with which there has been substantial compliance, the statute suggests no condition or restriction on the right of either party to commence the action (see Tantleff v Tantleff, 60 Misc 2d 608, 611, affd on limited grounds 33 AD2d 898). A number of decisions, following in the wake of the 1966 reforms, have held that even though individual clauses in a separation agreement were void, the agreement supplied grounds for divorce under subdivision (6) of section 170 of the Domestic Relations Law since such agreements survive for that purpose (see, e.g., Bruno v Bruno, 51 AD2d 862, mot for lv to app den 39 NY2d 706; Seligman v Seligman, 78 Misc 2d 632, 635; Hummel v Hummel, 62 Misc 2d 595, 599; but see Markowitz v Markowitz, 77 Misc 2d 586, 589, 592).

The cause of action in defendant’s counterclaim is one for divorce under subdivision (6) of section 170, and the reply thereto asserts affirmative defenses. No cause is set forth by either party for enforcement or invalidation of the separation agreement. As to said counterclaim, it is the physical separation, rather than the writing, which constitutes the actual basis of the cause (Littlejohns v Littlejohns, 76 Misc 2d 82, 86, affd on opn at Trial Term 42 AD2d 957, supra; Hummel v Hummel, 62 Misc 2d 595, 599, supra). The agreement is "simply intended as evidence of the authenticity and reality of the separation” (cf. Gleason v Gleason, supra, p 35; Harris v Harris, 36 AD2d 594; see Martin v Martin, 63 Misc 2d 530, 533). In Littlejohns the agreement was viewed as evidence of the parties’ actual and continued separation (p 86), and, in Markowitz, the instrument was said to be "merely documentary proof of a separation” (p 591). In Martin, a stipulation made in open court, the transcript of which was filed with the County Clerk, was held to carry no less weight than a written agreement, since the purpose of the filing provision in respect to separation agreements is to evidence the fact that the agreement was made before maintenance of the divorce action (but see Nitschke v Nitschke, 66 Misc 2d 435, 436-437; Jacobs v Jacobs, 55 Misc 2d 9).

Although a written separation agreement is a sine qua non to a divorce under subdivision (6), it is evidentiary in nature and admissible under general rules of evidence (see Richardson, Evidence [Prince—10th ed], § 643). By the same token, proof independent of the agreement would also be admissible on the question of whether or not the parties actually lived separate and apart for at least one year. Therefore, if the separation agreement conforms to the statute but is otherwise found to be void and unenforceable insofar as its substantial provisions are concerned, generally it may still be accepted for the sole purpose of evidencing the parties’ agreement to live separate and apart, thus satisfying the statutory requirement in respect to a separation agreement (see Henderson v Henderson, 47 AD2d 801, app dsmd 37 NY2d 782; 11A Zett-Edmonds-Schwartz, NY Civ Prac, Matrimonial Actions, § 21.05, p 21-14; see, also, La Barge v La Barge, 84 Misc 2d 523, 524-525; but see Cicerale v Cicerale, 85 Misc 2d 1071, 1075). In this same vein, it was held, long before 1966, in Reischneld v Reischneld (100 Misc 561), an action for separation based on abandonment and other grounds, that, even though void, a separation agreement negated an abandonment since the husband and wife separated voluntarily (see Matter of Brown, 153 Misc 282, 284; 16 NY Jur, Domestic Relations, § 886; see, also, Rosenbaum v Rosenbaum, 56 Misc 2d 221, 224). Since, as the Appellate Division here stated, "[t]he parties have lived separate and apart from each other pursuant to their agreement, which was properly executed and filed, and each has adhered to the terms thereof for a period of more than one year”, the requirements of subdivision (6) were fulfilled and that court properly granted a divorce on the counterclaim.

Said court was of the view, however, that the portion of the agreement which called for an equal division of the assets listed in the annexed schedule was "so unconscionable as to be unenforceable” and that the wife should not be required to pay such substantial sums to her husband "upon the advent of such divorce in compliance with a portion of the separation agreement which is tainted with unconscionability” citing Riemer v Riemer (48 Misc 2d 873, affd 25 AD2d 956, mot for lv to app dsmd 17 NY2d 915). In Riemer the word "unconscionable” does not appear, but, over the years, an unconscionable bargain has been regarded as one " 'such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other’ ” (Hume v United States, 132 US 406, 411), the inequality being " 'so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense’ ” (Mandel v Liebman, 303 NY 88, 94). Unconscionable conduct is something of which equity takes cognizance, when warranted (see Weirfield Holding Corp. v Pless & Seeman, 257 NY 536; Graf v Hope Bldg. Corp., 254 NY 1, 4; Howard v Howard, 122 Vt 27; 27 Am Jur 2d, Equity, § 24, pp 549-550; cf. 2 Pomeroy’s Equity Jurisprudence [4th ed], § 873, p 1804).

Generally, separation agreements which are regular on their face are binding on the parties, unless and until they are put aside (2 Foster & Freed, Law and the Family, p 476; see, also, Schmelzel v Schmelzel, 287 NY 21, 26; 2 Lindey, Separation Agreements and Ante-Nuptial Contracts [rev ed], § 36, subd 1, p 36-3). Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions. Furthermore, when there has been full disclosure between the parties, not only of all relevant facts but also of their contextual significance, and there has been an absence of inequitable conduct or other infirmity which might vitiate the execution of the agreement, courts should not intrude so as to redesign the bargain arrived at by the parties on the ground that judicial wisdom in retrospect would view one or more of the specific provisions as improvident or one-sided.

If voidable, such an agreement may be set aside under principles of equity in an action in which such relief is sought in a cause of action or by way of affirmative defense (Susquehanna S. S. Co. v Andersen & Co., 239 NY 285, 292-294; 16 NY Jur, Domestic Relations, § 715). Agreements between spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring the utmost of good faith (Ducas v Guggenheimer, 90 Misc 191, 194-195, affd sub nom. Ducas v Ducas, 173 App Div 884). There is a strict surveillance of all transactions between married persons, especially separation agreements (Hendricks v Isaacs, 117 NY 411, 417, supra; Benesch v Benesch, 106 Misc 395, 402; 2 Lindey, Separation Agreements and Ante-Nuptial Contracts [rev ed], § 37, subd 4, p 37-9). Equity is so zealous in this respect that a separation agreement may be set aside on grounds that would be insufficient to vitiate an ordinary contract (Hungerford v Hungerford, 161 NY 550, 553, supra; Cain v Cain, 188 App Div 780, 782; Crowell v Crowell, 135 Misc 530, 532, affd 229 App Div 771). These principles in mind, courts have thrown their cloak of protection about separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity. (Scheinberg v Scheinberg, 249 NY 277, 282-283; Hungerford v Hungerford, 161 NY 550, 553, supra; Matter of Smith, 243 App Div 348, 353; Ducas v Guggenheimer, 90 Misc 191, 194, affd sub nom. Ducas v Ducas, 173 App Div 884, supra; Montgomery v Montgomery, 170 NYS 867, affd 187 App Div 882; see Validity of Separation Agreement As Affected by Fraud, Coercion, Unfairness or Mistake, Ann., 5 ALR 823, 827).

To warrant equity’s intervention, no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other’s overreaching (2 Lindey, Separation Agreements and Ante-Nuptial Contracts [rev ed], § 37, subd 5, p 37-12; cf. Matter of Baruch, 205 Misc 1122, 1124, affd 286 App Div 869; Pegram v Pegram, 310 Ky 86, 89-90). In determining whether a separation agreement is invalid, courts may look at the terms of the agreement to see if there is an inference, or even a negative inference, of overreaching in its execution. If the execution of the agreement, however, be fair, no further inquiry will be made.

Whether a contract is entire or severable generally is a question of intention, to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted (5 Williston, Contracts [3d ed], § 767, p 629). Here the parties had a right to and did, by expressly stipulating that if any provision of the separation agreement be held invalid or unenforceable all other shall nevertheless continue in full force, make the agreement within reasonable limits divisible, and there is little room for construction (New Era Homes Corp. v Forster, 299 NY 303, 306-307; Coppedge v Leiser, 71 Idaho 248, 251-253; see United States v Bethlehem Steel Corp., 315 US 289, 298). Courts were therefore, by contract terms, free to adjudge the validity of the last paragraph of provision "6” of the separation agreement without consequential effect on the remainder of the writing.

This case is of moment. Important it is, because separation agreements have assumed a new and greater legal dimension. Not only may they serve as "evidence of the authenticity and reality of the separation” which is a basis for absolute divorce but, even though a portion of the agreement, such as one dealing with the economics or property of the marital parties, be declared void because of overreaching in bringing about its execution, the separation agreement still retains vitality as an essential ingredient in such an action for dissolution of the marriage. Because of the law’s purpose, to achieve its moral and social goals and to avoid a frustration of those aims, separation agreements must not be permitted to be employed as instruments for the improper exaction in the inducement of execution of unconscionable terms within a frame of inequitable conduct.

The order of the Appellate Division, insofar as appealed from, should be reversed, without costs, and the case remitted to the Supreme Court, Suffolk County, for further proceedings including a hearing and findings as may be appropriate in accordance with this opinion.

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

Order, insofar as appealed from, reversed, without costs, and the case remitted to Supreme Court, Suffolk County, for further proceedings in accordance with the opinion herein.

      . It is pointed out in Zett-Edmonds-Schwartz (vol 11 A, NY Civ Prac, Matrimonial Actions, § 21.01) that all of the grounds for a separation decree, with the exception of imprisonment, are based upon the fault of one spouse or the other.

      . Chapter 700 of the Laws of 1968 substituted "substantially” for "duly”.