author: Alexander, J.

text:
    The People of the State of New York, Respondent, v Scott Kern, Jason Ladone and Jon Lester, Appellants.
    Argued February 7, 1990;
    decided March 29, 1990

      POINTS OF COUNSEL

      Charles L. Weintraub, Susan C. Wolfe, John L. Pollok, Edward Gasthalter and Michael H. Gold for appellants.

      Helman R. Brook, Special State Prosecutor (Arthur G. Weinstein and Matthew S. Greenberg of counsel), for respondent.

      Arnold S. Cohen for The Legal Aid Society, amicus curiae.

   OPINION OF THE COURT

Alexander, J.

On this appeal, defendants assert a right, through the mechanism of the peremptory challenge, to exclude persons of a particular race from service on a criminal jury. We hold today that such racial discrimination has no place in our courtrooms and that such conduct by defense counsel is prohibited by both the Civil Rights Clause and the Equal Protection Clause of our State Constitution. Accordingly, we affirm the order of the Appellate Division upholding defendants’ convictions.

I

Defendants were convicted, after a highly publicized trial, of manslaughter, and other charges arising out of their participation in an attack by a group of white teen-agers upon three black men in the community of Howard Beach in Queens. This so-called "Howard Beach incident” occurred during the early morning hours of December 20, 1986, after the three victims, Michael Griffith, Cedric Sandiford and Timothy Grimes left their disabled car on the nearby Cross Bay Boulevard and walked into the Howard Beach neighborhood to seek assistance.

At the same time that Griffith, Sandiford and Grimes left their car, a birthday party was being held in Howard Beach and was attended by approximately 30 teen-agers, including defendants Kern, Lester, and Ladone, their codefendant Michael Pirone and the accomplice who testified against them, Robert Riley. At approximately 12:20 a.m., Kern’s girlfriend, Claudia Calogero, left the party and was driven home by Salvatore DeSimone, accompanied by Lester and a fourth youth. As DeSimone turned the corner from Cross Bay Boulevard onto 157th Avenue, Griffith, Grimes and Sandiford started to cross the street, heading towards the New Park Pizzeria. Calogero testified that three black men darted in front of the car, forcing DeSimone to stop suddenly. An argument ensued between the pedestrians and the occupants of the car. According to Calogero, Sandiford stuck his head into the car window and stared at the teen-agers. According to Sandiford’s testimony, however, the occupants of the car stuck their heads out of the window and yelled "Niggers, get [out of] the neighborhood”. Following that confrontation, the three men crossed the street and entered the pizzeria while the youths continued on their way. After driving Calogero home, DeSimone, Lester and the other youth returned to the party.

Robert Riley was sitting on the steps outside the house where the party was being held when DeSimone, Lester and the other youth arrived. Lester shouted "There were some niggers on the boulevard, lets go up there and kill them”. A few minutes later, a number of youths, including Kern, Lester, Ladone and Pirone, left the party to track down the three black men. DeSimone led the caravan of cars from the party to the New Park Pizzeria in his car with Lester and Ladone. Riley followed in his own car with three male teen-agers and Laura Castagna, whom Riley intended to escort home. John Saggese followed the group in his car. Although Riley did not know in which car Kern and Pirone traveled, he testified that he observed the two when the group eventually arrived at the pizzeria.

Meanwhile, at approximately 12:45 a.m., Grimes, Sandiford and Griffith left the New Park Pizzeria. At that point, the cars containing the teen-agers pulled into the parking lot and the youths, with the exception of Laura Castagna, emerged from the cars. The group, wielding bats and sticks, confronted Griffith, Grimes and Sandiford and yelled at them to get out of the neighborhood. Riley testified that Kern was banging a baseball bat on the ground as the teen-agers formed a semicircle around the three men, who, according to Riley, were each holding a knife. According to Grimes, several of the youths were carrying bats and sticks and one youth held "something that looked like an iron pipe”. Sandiford testified that he did not have a weapon and that he did not observe whether Griffith or Grimes displayed any weapons. Grimes testified that he pulled out a knife and held it in front of him as the youths approached. At that point, Sandiford was struck in the back by a bat. Although Riley never saw Kern swing the bat he had been holding, he did testify that after Sandiford was struck, Riley grabbed the bat from Kern because he (Riley) could swing it "harder”. As the three men fled across Cross Bay Boulevard, Riley, Kern, Ladone, Lester, Pirone and several other youths gave chase.

Griffith, Grimes and Sandiford ran in different directions. Grimes headed north on Cross Bay Boulevard and managed to escape his attackers. Sandiford was struck several times with bats and tree limbs as his assailants chanted "Niggers, get * * * out of the neighborhood”. Sandiford was able to break away from the youths and was eventually joined by Griffith as they ran down an alleyway behind several stores parallel to Cross Bay Boulevard. The two men were followed by Kern, Ladone, Lester, Riley, Pirone and two other youths. The alleyway ended at a three-foot-high barricade where it intersected with 156th Avenue. Both Sandiford and Griffith jumped over the barricade and made a left turn onto 156th Avenue. The group of teen-agers followed, approximately 30 feet behind, jumped the barricade and continued the chase.

At that time, Saggese pulled up in the westbound lane on 156th Avenue, and, after clearing the barricade, Riley got into the backseat. The car followed closely behind the youths on foot, who turned right on 90th Street, following Griffith. At the end of 90th Street, a three-foot-high guardrail separated that street from the Belt Parkway, a six-lane highway which runs east and west. Shore Parkway, a service road for the Belt Parkway which also runs east and west, partially intersects 90th Street at the guardrail and leads to Cross Bay Boulevard. The Saggese car, which had pulled ahead of the youths on foot, “ stopped three quarters of the way down 90th Street. Lester ran to the car, grabbed a bat from Riley, and he, Riley, Kern and Ladone ran toward the end of 90th Street after Griffith. Griffith jumped over the guardrail and ran onto the Belt Parkway. When the youths reached the guardrail, Riley observed Griffith run across the three eastbound lanes of the highway, jump the center median and enter the westbound lanes where he was struck by a car driven by Dominic Blum. Griffith was killed in the accident; his body was thrown a distance of approximately 75 to 125 feet and Blum left the scene without realizing that he had hit a person. He later returned to the scene of the accident and spoke to the police.

After the youths observed Griffith being struck by a car, Lester, Kern and Ladone ran back toward 156th Avenue where they met up with two other youths. Riley, Pirone, Saggese and another youth returned in Saggese’s car to the pizzeria, where they picked up Castagna and headed toward 156th Avenue.

Sandiford, who had managed to temporarily escape his assailants, was walking west on 156th Avenue when he was attacked from behind by the group of teen-agers who beat him with bats and tree limbs. Sandiford testified that he managed to grab the bat being wielded by Lester as he pleaded with Lester not to kill him. At that point, a car pulled up and, as its occupants approached, Sandiford released the bat which Lester then swung at him, striking him in the head and causing blood to run down the back of his head. He further testified that he "fe[lt] like [his] brain * * * busted apart”.

Sandiford broke away from his attackers, who continued to chase him. The chase ended when Sandiford tried to climb a chainlink fence which ran parallel to the Belt Parkway. The youths pulled Sandiford down from the fence, kicking and beating him with bats and tree limbs. Sandiford cried for help to Theresa Fisher, who was standing in the doorway of a house across the street. In response, Fisher called the police. A tape recording of her 911 call was admitted into evidence at the trial. The beating of Sandiford continued and the final attack was witnessed by George and Marie Toscano, who also called the police.

After his assailants left him, Sandiford was picked up by a police car on the Belt Parkway and driven to the site where Griffith’s body was located, where he identified the body. He was later taken to the hospital and treated for his injuries.

Thereafter, defendants were arrested and indicted and Huntley hearings were conducted on the admissibility of their statements to law enforcement officials. The hearing on Lester’s statements established that he was arrested and brought to the 106th Precinct on the the morning of December 22, 1986. When Lester requested and was given a newspaper by a police officer, Lester read the front-page headline about the Howard Beach incident and declared "[t]his isn’t what happened. It’s not even close.” Lester was then advised, for the first time, of his Miranda rights and gave a statement detailing his participation in the crime. Questioning ceased at 1:50 p.m., when Lester was advised that his attorney had telephoned. Shortly before 2:00 p.m., Lester was seated uncuffed in a room adjoining the squad room. Lester motioned to Assistant District Attorney Wolk, who was standing in the squad room. Wolk recounted his conversation with Lester as follows: "[Lester] said to me, '[a]re you an attorney?’ I said '[j]ust so you know, I’m an Assistant District Attorney’. After I said that [Lester] motioned me towards him with a finger. I walked a few steps towards him and I stood next to him. [Lester] said * * * T know people are giving me up. I won’t give anybody up. I was taught you don’t rat on your friends, but I’ll tell you what I did.’ I stood there and he continued * * * T chased the taller black guy with a baseball bat and I struck him with the baseball bat, but I didn’t chase the other guy.’ Then he repeated again, T won’t tell you what anybody else did. I was taught you don’t rat on your friends’ ”. Following this conversation, Wolk walked away from Lester. Supreme Court ruled admissible Lester’s declaration upon viewing the newspaper and his statement to ADA Wolk. The court also ruled admissible certain statements made by defendants Kern and Ladone.

After these rulings, the trial commenced. On the first day of jury selection, defense counsel successfully challenged for cause one of the four black jurors on the panel. Defense counsel unsuccessfully challenged for cause two of the remaining three black jurors, and subsequently peremptorily challenged all three black jurors. Before exercising these peremptories, defense counsel applied for eight additional peremptory challenges because, in their view, the black jurors did not "want to be excused. They’re coming in here, volunteering”, whereas white jurors "who aren’t anxious to serve are using all kinds of excuses to get off any duty”. Supreme Court rejected defense counsel’s argument that the venire did not represent a fair cross-section of the community and denied the application. After the defense exercised its peremptory challenges, the prosecution argued that it had established a prima facie case of discrimination and moved to require defense counsel to provide racially neutral explanations for the challenges to black prospective jurors. Supreme Court denied the application as premature.

The prosecution renewed its application on the third day of jury selection and the court reserved decision. At the end of voir dire that day, defense counsel challenged for cause six black jurors on the panel. One challenge was granted on consent and the remainder were denied. The next day, Supreme Court ruled that defense counsel could not constitutionally exercise peremptory challenges in a racially discriminatory manner and held that the procedures articulated in Batson v Kentucky (476 US 79) were therefore applicable to defense counsel. As a remedy, the court ordered that its ruling be applied prospectively — requiring defense counsel to provide neutral explanations for any future peremptory challenges of black jurors.

When jury selection resumed, the defense peremptorily challenged seven black jurors. One juror was excused without explanation and the defense proffered racially neutral explanations for the challenges to the remaining six. The court accepted the explanations as to three of the jurors, and rejected the explanations offered as to the other three jurors. Two of those jurors, however, were subsequently excused for unrelated reasons and only one juror was seated over defense objection. That juror, however, was also excused when her son became ill prior to the completion of the trial. The first alternate, who had been accepted by both the prosecution and the defense, took her place and deliberated with the other jurors, all of whom the defense had indicated were satisfactory.

Defendants Kern and Lester were convicted of second degree manslaughter with regard to Griffith’s death, first degree assault with regard to the attack on Sandiford at 156th Avenue, and fifth degree conspiracy. Ladone was convicted of second degree manslaughter and first degree assault. The Appellate Division affirmed their convictions in all respects and defendants appeal by leave of an Associate Judge of this court.

Defendants’ primary contention on this appeal is that Supreme Court erred in restricting their exercise of peremptory challenges. They argue that neither the State nor the Federal Constitutions prohibit a criminal defendant from exercising racially discriminatory peremptory challenges. In addition, they argue that the evidence was legally insufficient to sustain their convictions and that Supreme Court committed reversible error by admitting certain of their statements at the trial. We find the arguments unpersuasive and affirm the order of the Appellate Division.

II

Although peremptory challenges have long played an important role in the conduct of criminal trials (Holland v Illinois, 493 US —, 110 S Ct 803; Lewis v United States, 146 US 370, 380; Pointer v United States, 151 US 396, 408-409; see also, People v Thompson, 79 AD2d 87; see generally, Goldwasser, Limiting a Criminal Defendant’s Use of Peremptory Challenges: On Symmetry and the Jury in a Criminal Trial, 102 Harv L Rev 808), they are not of constitutional dimension (Holland v Illinois, supra; Batson v Kentucky, 476 US, at 91, supra; Stilson v United States, 250 US 583, 586; Hayes v Missouri, 120 US 68, 71-72; People v Lobel, 298 NY 243, 257; People v Doran, 246 NY 409, 426-427; Walter v People, 32 NY 147, 160). In New York, it was not until 1828 that defendants were accorded the right to exercise peremptory challenges (2 Rev Stat of NY [1829], part IV, ch II, tit V, § 9; see, People v Thompson, 79 AD2d, at 98, supra). Today, the right derives from CPL 270.25, which defines a peremptory challenge as "an objection to a prospective juror for which no reason need be assigned” and sets the number of peremptory challenges for both the prosecution and the defense in accordance with the seriousness of the crimes charged.

The prosecution’s exercise of peremptory challenges, however, is not completely unfettered. The Supreme Court has restricted the prosecution’s use of peremptories in accordance with the mandates of the Equal Protection Clause, holding that the Fourteenth Amendment prohibits the prosecution from exercising peremptory challenges so as to purposefully exclude persons of a particular race from service on the petit jury (Batson v Kentucky, 476 US 79, supra; Swain v Alabama, 380 US 202; Strauder v West Virginia, 100 US 303). Of course, at least to the extent that our State equal protection provision is coextensive with the Federal provision (Matter of Esler v Walters, 56 NY2d 306, 314), the State Constitution prohibits such discrimination as well (see, People v Hernandez, 75 NY2d 350; cf., People v McCray, 57 NY2d 542, 550, cert denied 461 US 961 [following Swain]). Rejecting the evidentiary standard articulated in Swain v Alabama (supra), Batson established the present procedure for making out an equal protection claim in the selection of the petit jury. First, the defendant is required to establish a prima facie case of discrimination by demonstrating that (1) he or she is a member of a cognizable racial group, (2) the prosecution has exercised peremptory challenges to exclude members of that group from the petit jury, and (3) "these facts and any other relevant circumstances raise an inference” of purposeful discrimination (Batson v Kentucky, 476 US, at 96, supra; see also, People v Jenkins, 75 NY2d 550 [decided today]; People v Scott, 70 NY2d 420). Once the defendant has made such a showing, the burden shifts to the prosecution to articulate nonpretextual, racially neutral reasons for the suspect peremptory challenges (Batson v Kentucky, 476 US, at 97, supra).

The question we confront today is whether the procedures articulated in Batson may be applied to limit the exercise of peremptory challenges by the defense. Since defense peremptory challenges are not so limited by statute, the question, more precisely, is whether purposeful racial discrimination by defendants and their counsel, in the form of exercising peremptory challenges to exclude a particular racial group from the petit jury, is constitutionally permissible. For the reasons that follow, we agree with the courts below that such purposeful racial discrimination is prohibited by both the Civil Rights Clause and the Equal Protection Clause of article I, § 11 of our State Constitution.

A

As a threshold matter, we reject the People’s contention that defendants’ challenge to the restrictions on their peremptory challenges is moot because the one juror seated over their objection was excused prior to deliberations. Supreme Court’s ruling, after six jurors had been selected, that the Batson procedures would be applied to the defense, affected the selection of all the remaining jurors. Once the People established a prima facie case of discrimination, defense counsel were required to offer nonpretextual, racially neutral explanations for their peremptory challenges to black prospective jurors. The legitimacy of the reasons proffered, defense counsel knew, might be evaluated in light of their conduct throughout the jury selection, including their questioning of and challenges to white prospective jurors (see, e.g., People v Bridget, 139 AD2d 587, 588; People v Gregory ZZ., 134 AD2d 814, 816, lv denied 71 NY2d 905; State v Tolliver, 750 SW2d 624 [Mo App 1988]; State v Antwine, 743 SW2d 51 [Mo 1987]; Slappy v State, 503 So 2d 350 [Fla App, 3d Dist 1987], cert denied 487 US 1219). Consequently, the defense questioning of these white prospective jurors, some of whom did serve on the jury, may have been inhibited as well.

B

Because this case implicates fundamental policies of the State of New York, we turn to the question of whether the State Constitution permits the purposeful racial discrimination practiced by the defense here. We conclude that it does not.

Section 11 of article I of the State Constitution provides: "No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision of the state.” While the first sentence of this section is an equal protection provision which, like the Federal equal protection right, is addressed to "State action” (Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 360, n 6; Matter of Esler v Walters, 56 NY2d 306, 314, supra; Dorsey v Stuyvesant Town Corp., 299 NY 512, 530-531), the Civil Rights Clause contained in the second sentence prohibits private as well as State discrimination as to "civil rights” (Dorsey v Stuyvesant Town Corp., 299 NY, at 531, supra). The term "civil rights” was understood by the delegates at the 1938 Constitutional Convention to mean "those rights which appertain to a person by virtue of his citizenship in a state or community” (4 Rev Record of NY State Constitutional Convention, 1938, at 2626 [statement of Delegate H.E. Lewis]). The Civil Rights Clause is not self-executing, however, and prohibits discrimination only as to civil rights which are "elsewhere declared” by Constitution, statute, or common law (id., at 2626-2627; see also, Dorsey v Stuyvesant Town Corp., 299 NY, at 531, supra).

Defendants argue that this Civil Rights Clause is inapplicable in this instance because no statute prohibits the exercise of racially discriminatory peremptory challenges. This argument, however, reduces our constitutional Civil Rights Clause to a mere redundancy; in defendants’ view, the clause would operate to prohibit private discrimination only where such discrimination was already expressly prohibited by statute. We do not read the constitutional provision so narrowly.

In Dorsey, we held that the right to be free from racial discrimination in the acquisition of housing was not a "civil right” "elsewhere declared” because, at that time, no statute recognized the right to the acquisition of an interest in real property to be a civil right, the delegates at the Constitutional Convention in 1938 had expressly rejected the designation of such an interest as a civil right, and the Legislature had recently declined to amend the Civil Rights Law to define the opportunity to purchase and lease real property to be a civil right (Dorsey v Stuyvesant Town Corp., 299 NY, at 531, supra).

Jury service, by contrast, is a civil right established by Constitution and statute. First, jury service is a "privilege[] of citizenship” secured to the citizens of this State by article I, § 1 of the State Constitution. Service on the jury has long been recognized to be both a privilege and duty of citizenship (Thiel v Southern Pac. Co., 328 US 217, 224; Strauder v West Virginia, 100 US, at 308, supra; see also, People v Briggins, 67 AD2d 1004, 1006 [Titone, J., dissenting], revd 50 NY2d 302; People v Gary M., 138 Misc 2d 1081, 1095; People v Davis, 142 Misc 2d 881, 889). Indeed, it is because jury service is a means of participation in government that, in the words of Mr. Justice Black, "[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government” (Smith v Texas, 311 US 128, 130).

These concerns have been articulated in the context of ensuring that a criminal defendant is tried by a jury drawn from a venire that is representative of a fair cross section of the community (see, Taylor v Louisiana, 419 US 522) and that the Grand Jury, the venire and the petit jury afford him the equal protection of the laws (Smith v Texas, supra; Strauder v West Virginia, supra; Batson v Kentucky, supra). Nevertheless, these cases illustrate that jury service is a means of participation in government which can only be considered a privilege of citizenship. Racial discrimination in the selection of juries harms the excluded juror by denying this opportunity to participate in the administration of justice, and it harms society by impairing the integrity of the criminal trial process (Batson v Kentucky, 476 US, at 87-88, supra; McCray v Abrams, 461 US 961, 968 [Marshall, J., dissenting from denial of certiorari]; Ballard v United States, 329 US 187, 195).

We reject defendants’ contention that these fundamental concerns are relevant only to prohibiting racial discrimination in the selection of the venire and therefore that the privilege of citizenship secured by article I, § 1 extends only to qualification for jury service on the venire. A citizen’s privilege to be free of racial discrimination in the qualification for jury service is hardly a privilege if that individual may nevertheless be kept from service on the petit jury solely because of race. While it is true that no citizen has a right to sit on any particular petit jury, the Legislature has declared as the policy of this State that "all eligible citizens shall have the opportunity [and obligation] to serve on grand and petit juries in this state” (Judiciary Law § 500). We hold today that this opportunity for service on a petit jury is a privilege of citizenship which may not be denied our citizens solely on the basis of their race.

Second, the Legislature has expressly declared service on the petit jury to be a civil right, providing in Civil Rights Law § 13 that "[n]o citizen of the state possessing all other qualifications which are or may be required or prescribed by law, shall be disqualified to serve as a * * * petit juror in any court of this state on account of race”. We are unpersuaded by defendants’ contention that this statute is directed only at the actions of the Jury Commissioner and does not serve to limit the peremptories accorded to the defense in CPL 270.25. The statute leaves no doubt that service on the petit jury is a civil right in this State, and, this being so, it is the Civil Rights Clause of article I, § 11 of the Constitution which limits the defense exercise of its peremptories, notwithstanding the language of CPL 270.25.

Accordingly, we conclude that purposeful racial discrimination in the exercise of peremptory challenges, whether exercised by the prosecution or the defense, is prohibited by the Civil Rights Clause of article I, § 11 of the State Constitution.

C

The People further argue that the exercise of racially discriminatory peremptory challenges by the defense violates article I, § 11 because such challenges deny the excused jurors the equal protection of the laws. In previous cases we have held that our State equal protection provision, like the Federal equal protection right, is directed at discrimination attributed to the government and requires a showing of "State action” (Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d, at 360, n 6, supra; Matter of Esler v Walters, 56 NY2d, at 314, supra; Dorsey v Stuyvesant Town Corp., 299 NY, at 530-531, supra).

Our analysis begins with the Supreme Court’s decision in Batson v Kentucky (supra). In Batson, the court expressly declined to decide whether the Equal Protection Clause restricted the exercise of peremptory challenges by defense counsel as well as the prosecution (Batson v Kentucky, 476 US, at 89, n 12, supra), although in his dissent, Chief Justice Burger concluded that the same restrictions on defense peremptories would "inevitably” follow (id., at 125-126) and Justice Marshall, concurring in the majority opinion, noted that the "potential for racial prejudice * * * inheres in the defendant’s challenge as well” and recommended eliminating peremptories entirely (id., at 108). Moreover, while holding that the Equal Protection Clause prohibits a prosecutor’s exercise of peremptory challenges to exclude from the petit jury a member of the defendant’s race, the court recognized that it was both the defendant and the excluded juror who were denied equal protection (Batson v Kentucky, 476 US, at 87-88, supra; see also, Strauder v West Virginia, 100 US, at 308, supra). In addition, the court’s decision to prohibit racial discrimination in the exercise of prosecution peremptories was also premised upon the injury to the criminal justice system inherent in such discrimination: "The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Discrimination within the judicial system is most pernicious because it is 'a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others’ ” (Batson v Kentucky, 476 US, at 87-88, supra [citations omitted]). By their application to restrict defense peremptory challenges, the People have asserted the rights both of the excluded jurors and the community-at-large.

Defendants argue that Batson does not restrict their exercise of peremptory challenges because such conduct is not State action and therefore is not subject to the mandates of the Equal Protection Clause. The People respond that the defense exercise of racially discriminatory peremptory challenges is sufficiently imbued with the authority of the State to constitute "State action” for the purposes of equal protection.

While it is settled that the Equal Protection Clause of the Fourteenth Amendment "erects no shield against merely private conduct, however discriminatory or wrongful” (Shelley v Kraemer, 334 US 1, 13; Civil Rights Cases, 109 US 3), there is no precise formula to determine State responsibility under the clause. It is "[o]nly by sifting facts and weighing circumstances [that] the nonobvious involvement of the State in private conduct [can] be attributed its true significance” (Burton v Wilmington Parking Auth., 365 US 715, 722). More recently, the court explained that the requisite State action is present when "the conduct allegedly causing the deprivation of a federal right [is] fairly attributable to the State” (Lugar v Edmondson Oil Co., 457 US 922, 937).

Defendants, relying on Polk County v Dodson (454 US 312), argue that the defense exercise of peremptory challenges is not State action because the decision to discriminate is purely private, and therefore not attributable to the State. In Polk, the court held that a public defender’s withdrawal of an appeal was not action "under color of state law” for the purposes of 42 USC § 1983, reasoning that although the public defender was a State employee, he performed an essentially private function (454 US, at 318-319, supra). Contrary to defendants’ contention, we do not read Polk as establishing that every action performed by a defense attorney may never be attributable to the State. The argument before the court in Polk was that the actions of the public defender were necessarily attributable to the State by virtue of the attorney’s relationship to the State and not because of any action taken by the State. Indeed, the court later likened the claim in Polk to an argument that the State was responsible for the private decisions of a nursing home because the State extensively regulated the nursing home industry (Blum v Yaretsky, 457 US 991, 1008-1009). It is in that circumstance, where there is no other action by the State affecting the discriminatory act, that the relevant inquiry is whether the decision to discriminate can be attributed to the State (id., at 1004; Jackson v Metropolitan Edison Co., 419 US 345, 357; Moose Lodge No. 107 v Irvis, 407 US 163; Flagg Bros, v Brooks, 436 US 149, 166; see also, Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, supra).

To be distinguished are circumstances such, as that presented here — where the claimed State action arises from the State enforcement of and involvement in the discriminatory act. Thus in Shelley v Kraemer (334 US 1, supra), the court held that judicial enforcement of racially restrictive covenants constituted State action, notwithstanding that the decision to discriminate could not be ascribed to the State. Rather, State action existed because "the States have made available to [persons choosing to discriminate] the full coercive power of government to deny [black citizens] the enjoyment of property rights” (id., at 19; see also, Matter of Wilson, 59 NY2d 461, 478). Similarly, in Lugar v Edmondson Oil Co. (457 US 922, supra), the court found State action where a private party made use of ex parte State attachment procedures to deprive another person of his property. The court explained that the State had created the attachment right and that the private party’s joint participation with State officials in the seizure of the property was sufficient to render that person a "State actor”, even though the decision to seize the property was purely private (id., at 941; compare, Adickes v Kress & Co., 398 US 144; see also, Tulsa Professional Collection Seros, v Pope, 485 US 478, 484-488). The question is whether the degree of involvement by the State can be said to be substantial such that the coercive power of the State has been enlisted to enforce private discrimination (Tulsa Professional Collection Servs. v Pope, supra; Shelley v Kraemer, supra; Matter of Wilson, 59 NY2d, at 479, supra).

Turning then to the case before us, there can be no question that the State is inevitably and inextricably involved in the process of excluding jurors as a result of a defendant’s peremptory challenges. A defendant’s right to exercise the challenges is conferred by State statute (CPL 270.25). The jurors are summoned for jury service by the State (see, Judiciary Law § 516), sit in a public courtroom and are subject to voir dire at the direction of the State, and, although defense counsel exercises the peremptory challenge and advises the Judge of the decision, it is the Judge, with the full coercive authority of the State, who enforces the discriminatory decision by ordering the excused juror to leave the courtroom escorted by uniformed court officers or Deputy Sheriffs. The jurors do not know whether it is the Judge, the prosecutor or the defense attorney who has excused them, and the inference is inescapable to both the excluded jurors and the public that it is the State that has ordered the jurors to leave. When these jurors are so excluded solely because of their race, the State cannot ignore its role in the discrimination against them. We fully agree with the sentiments expressed by a panel of the Fifth Circuit in a different context but apt language: "Justice would indeed be blind if it failed to recognize that the [trial] court is employed as a vehicle for racial discrimination when peremptory challenges are used to exclude jurors because of their race. The government is inevitably and inextricably involved as an actor in the process by which a [trial] judge, robed in black, seated in a paneled courtroom, in front of an American flag, says to a juror, 'Ms. X, you are excused’. A litigant’s decision to provoke the court’s action by virtue of a statutorily accorded right does not disguise the official governmental character of the procedure as a whole.” (Edmonson v Leesville Concrete Co., 860 F2d 1308, 1313, on reh 895 F2d 218.)

Thus we agree with the courts below that the judicial enforcement of racially discriminatory peremptory challenges exercised by defense counsel constitutes "State action” for the purposes of our State equal protection provision and therefore that Batson applies to the defense (see, People v Gary M., 138 Misc 2d 1081, supra; People v Muriale, 138 Misc 2d 1056; People v Davis, 142 Misc 2d 881, supra; People v Piermont, 143 Misc 2d 839; see also, Chew v State, 71 Md App 681, 527 A2d 332; State v Alvarado, 221 NJ Super 324, 534 A2d 440; Maloney v Washington, 690 F Supp 687; Note, Discrimination by the Defense: Peremptory Challenges After Batson v Kentucky, 88 Colum L Rev 355 [1988]; cf., Fludd v Dykes, 863 F2d 822 [11th Cir] [holding Batson applicable to civil trials]; Esposito v Buonome, 642 F Supp 760 [same]; Thomas v Diversified Contrs., 551 So 2d 343 [Ala] [same]; Chavous v Brown, 299 SC 398, 385 SE2d 206 [same]; but see, Edmonson v Leesville Concrete Co., 895 F2d 218 [5th Cir] [en banc], supra [Batson inapplicable to civil trials]).

Accordingly, we conclude that upon the People’s demonstration of a prima facie case of discrimination, Supreme Court properly required defense counsel to provide nonpretextual, racially neutral explanations for their challenges to black jurors. Thus, when defense counsel failed to explain their peremptory challenge to one juror, she was properly seated over their objection.

Ill

We also reject defendants’ contentions that the evidence adduced at trial was legally insufficient to support their convictions of second degree manslaughter (Penal Law § 125.15 [1]) and first degree assault (Penal Law § 120.10 [1]).

Viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621), the evidence supports the jury’s finding that defendants recklessly caused Griffith’s death (Penal Law § 125.15 [1]) because they were aware of the risk of death to Griffith as they continued to chase him on 90th Street and onto a six-lane highway, they consciously disregarded that risk, and, in so doing, grossly deviated from the standard of care which reasonable persons would have observed under the circumstances (see, Penal Law § 15.05 [3]). The evidence was also sufficient to support findings that defendants’ actions were a "sufficiently direct cause” of Griffith’s death (People v Kibbe, 35 NY2d 407, 413) and that although it was possible for Griffith to escape his attackers by turning onto Shore Road rather than attempting to cross the Belt Parkway, it was foreseeable and indeed probable that Griffith would choose the escape route most likely to dissuade his attackers from pursuit. The evidence was sufficient to prove, beyond a reasonable doubt, that Blum’s operation of his automobile on the Belt Parkway was not an intervening cause sufficient to relieve defendants of criminal liability for the directly foreseeable consequences of their actions (id., at 413).

The evidence is also legally sufficient to support defendants’ conviction of first degree assault (Penal Law § 120.10 [1]). Contrary to defendants’ contention, when viewed in the light most favorable to the People (People v Contes, 60 NY2d, at 621, supra), the evidence supports the jury’s determination that Sandiford suffered "serious physical injury” as a result of their attack upon him. Their determination that Sandiford suffered a "protracted impairment of [his] health” (Penal Law § 10.00 [10]) was supported by the testimony of Sandiford and the doctors who treated him that Sandiford suffered severe injuries to his back and right eye which affected him for nearly a year after the incident.

Defendants also assign error to several of Supreme Court’s suppression and trial rulings. We note that any error in the admission of Lester’s statement to Assistant District Attorney Wolk (see, People v Cunningham, 49 NY2d 203), is harmless beyond a reasonable doubt. The content of the statement, in which Lester admitted hitting Sandiford in the head with a bat, was also established by Sandiford’s own testimony, as corroborated by the testimony of Robert Riley and three nonaccomplice eyewitnesses. Thus, in light of the overwhelming evidence of defendants’ guilt, there is no reasonable possibility that the statement contributed to the verdict (People v Crimmins, 36 NY2d 230, 237). We have reviewed those of defendants’ remaining contentions which have been preserved for our review, and conclude that they do not warrant reversal.

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

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed.

      . Pirone, who was tried jointly with the other defendants, was acquitted of all the charges against him.

      . We note that our decision is in accord with the decisions of several other State courts which, interpreting their own Constitutions, have held that defendants, as well as the prosecution, are prohibited from exercising racially discriminatory peremptory challenges (see, Commonwealth v Soares, 377 Mass 461, 387 NE2d 499, cert denied, 444 US 881; People v Wheeler, 22 Cal 3d 258, 583 P2d 748; State v Neil, 457 So 2d 481 [Fla]).

      . We also reject defendants’ contention that Batson is inapplicable to the defense because the District Attorney is not a member of a cognizable racial group and therefore does not have standing to assert the equal protection rights of the excluded jurors (see, Batson v Kentucky, 476 US 79, 96; Castaneda v Partida, 430 US 482). Although a plurality of the Supreme Court has recently declined to pass on the issue (Holland v Illinois, 493 US —, 110 S Ct 803), five Justices agreed that notwithstanding the "cognizable racial group” requirement articulated in Batson, a criminal defendant’s race is "irrelevant to the Fourteenth Amendment standing inquiry”, concluding that a white defendant would have standing to challenge the exclusion of blacks from his petit jury (id., at —, at 814 [Marshall, J., dissenting]; id., at —, at 811-812 [Kennedy, J., concurring]; id., at —, at 820-822 [Stevens, J., dissenting]). We agree with the Appellate Division that as a representative of the community, the District Attorney has a direct interest in protecting its citizens and therefore a substantial relationship with the excluded jurors (149 AD2d, at 233). Moreover, as the jurors are not parties to the litigation and are unlikely to be able to assert their own rights, the State should be able to vindicate their rights (id.; see, Holland v Illinois, 493 US, at —, 110 S Ct, at 811-812 [Kennedy, J., concurring]). For these reasons, we conclude that the District Attorney has standing to assert the rights of these jurors under both the Equal Protection Clause and the Civil Rights Clause of our State Constitution.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    In the Matter of Board of Education of the City School District of the City of New York et al., Respondents, v New York State Public Employment Relations Board et al., Appellants.
    Argued March 27, 1990;
    decided May 1, 1990

      POINTS OF COUNSEL

      John M. Crotty and Jerome Thier for New York State Public Employment Relations Board, appellant.

      Bruce K. Bryant, J. Christopher Meagher, Stephen L. Fine, Rosaria R. Esperon, James R. Sandner and Robert Perez-Wil

      son for Council of Supervisors and Administrators, Local 1, AFSA, AFL-CIO, and others, appellants.

      Victor A. Kovner, Corporation Counsel (Paul T. Rephen and David Karnovsky of counsel), for respondents.

      Nancy E. Hoffman, Marilyn S. Dymond and Robert T. DeCa

      taldo for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, amicus curiae.

   OPINION OF THE COURT

Kaye, J.

Does the public interest in detecting and deterring official corruption prohibit collective bargaining concerning employee disclosure requirements imposed by New York City’s Board of Education? For the reasons that follow, we disagree with the Appellate Division’s broad assessment that public policy bars all negotiation on the subject.

In 1975, the Legislature amended Education Law § 2590-g ("Powers and duties of the city board”) by adding subdivisions (13) and (14) — the statutes that gave rise to this litigation. Those amendments for the first time authorized the New York City School Board (the Board) to obtain certain financial disclosures from its officers and employees. Nine years later, invoking its authority under these subdivisions, the Board adopted two regulations promulgated by the City School District Chancellor. These measures were apparently prompted by the widely publicized improprieties committed by a former Chancellor, and were intended to restore public confidence in the integrity of the school system. The regulations required designated Board employees at certain wage levels to submit detailed annual financial disclosure statements. Some employees were additionally required to undergo an in-depth background investigation that involved, among many other things, consent to verification of tax and credit information, disclosure of former employers’ records, health information, disclosure of certain political party associations, consent to be fingerprinted, and an agreement to hold the City harmless for all damages arising out of the investigation, save for those resulting from a breach of confidentiality. Failure to comply with the financial reporting requirements or other disclosure mandates could result in termination or denial of appointment, assignment or promotion.

Following adoption of the regulations, a number of unions representing affected employees filed improper employer practice charges with the Public Employment Relations Board (PERB), claiming that the disclosure requirements and background investigations constituted "terms and conditions of employment” subject to mandatory negotiation under the Taylor Law, and could not be imposed unilaterally by the Board. The unions also charged that the Board’s refusal to negotiate despite union demands violated Civil Service Law § 209-a (1) (d).

In a consolidated decision upon administrative appeal, PERB ruled that the Board had no duty to negotiate the specific financial reporting requirements set out in Education Law § 2590-g (13). However, it concluded that the Board was not unilaterally entitled to require disclosure of additional information under section 2590-g (14). Noting the far broader discretion as to the actual reporting requirements given the Board under subdivision (14), and weighing the various affected interests, PERB concluded that — other than the disclosure required by subdivision (13) — all the disclosures required by the Board were terms and conditions of employment that had to be negotiated.

The Board then instituted this article 78 proceeding seeking annulment of PERB’s determination. Supreme Court confirmed PERB’s determination, but the Appellate Division reversed (147 AD2d 70). In the view of the Appellate Division, collective bargaining over any disclosure requirements was necessarily prohibited in order to effectuate "the strong public interest in detecting and deterring corruption,” as "[i]t would be absurd to require the Board here to negotiate over anticorruption measures with the very employees whose honesty and integrity are at issue.” (Id., at 74.) We now reverse and dismiss the Board’s petition.

Analysis

At the outset of our analysis it is useful to establish the frame of reference within which the parties’ contentions should be evaluated. "In public employment law, 'prohibited’ subjects are those forbidden, by statute or otherwise, from being embodied in a collective bargaining agreement. 'Mandatory’ subjects are those over which employer and employees have an obligation to bargain in good faith to the point of impasse. 'Permissive’ subjects are those as to which either side may, but is not obligated to bargain.” (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Employment Relations Bd., 48 NY2d 398, 402-403, n 1.)

The Board maintains, as the Appellate Division held, that its disclosure requirements are a prohibited subject of collective bargaining by virtue of the strong public interest in rooting out corruption. Alternatively, the Board maintains that those policy concerns required, at the very least, that PERB recognize that the requirements are a permissive subject of negotiations, and that the Board need not enter into negotiations unless it chooses to do so! The unions, of course, contend that the disclosure requirements are "terms and conditions of employment” within the meaning of Civil Service Law § 201 (4), and must be negotiated (Civil Service Law § 204 [3]).

Also germane to the present discussion are well-established principles concerning the scope of our review. As the agency charged with interpreting the Civil Service Law, PERB is accorded deference in matters falling within its area of expertise (see, Matter of Rosen v New York State Pub. Employment Relations Bd., 72 NY2d 42, 47). In cases involving the issue of mandatory or prohibited bargaining subjects under the Civil Service Law, we have defined our review power as a limited one: "[s]o long as PERB’s interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation.” (Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50.) However, where the issue is one of statutory interpretation, dependent on discerning legislative intent, judicial review is not so restricted, as statutory construction is the function of the courts, not PERB. (Matter of Rosen v New York State Pub. Employment Relations Bd., 72 NY2d, at 47-48, supra.)

Prohibited Bargaining Subjects

We turn first to the Board’s claim — concurred in by the Appellate Division — that the disclosure requirements are a "prohibited” subject of collective bargaining. According to the Board, Education Law § 2590-g (14) embodies a strong public policy to detect and deter corruption; to subject anticorruption measures to the give-and-take of the negotiating process would necessarily compromise, or appear to the public to compromise, the Board’s ability to maintain the highest standards of integrity among its employees. Therefore, reasons the Board, implicit in the statutory scheme empowering the Board to require disclosure is prohibition of collective bargaining. In addition, the Board suggests that permitting the unions to negotiate over the disclosure requirements would significantly infringe its nondelegable responsibility for "the general management, operation, control, maintenance and discipline of schools.” (Education Law § 2554 [13] [b].)

The obligation under the Taylor Law to bargain as to all terms and conditions of employment is a "strong and sweeping policy of the State” (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778; Board of Educ. v Associated Teachers, 30 NY2d 122, 129). In a few instances, however, what might otherwise be negotiable terms and conditions of employment are prohibited from being collectively bargained. For example, a statute may direct that certain action be taken by the employer, leaving no room for negotiation (see, Matter of Union Free School Dist. No. 2 v Nyquist, 38 NY2d 137). Similarly, a subject that would result in school board surrender of nondelegable statutory responsibilities cannot be negotiated (see, Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, supra; Board of Educ. v Areman, 41 NY2d 527). That certain statutory obligations of a school board are nondelegable, we have held, is an implicit expression of public policy that forecloses negotiation (see, Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d, at 778, supra).

We have also recognized that there may be general public policy limitations on collective bargaining that are not derived from statute (see, Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers’ Assn.] 37 NY2d 614, 617). However, we have never actually prohibited bargaining or invalidated a collective bargaining agreement on such a non-statutory public policy ground. As we have noted, a public policy strong enough to require prohibition would "almost invariably involv[e] an important constitutional or statutory duty or responsibility.” (Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898, 899.)

The Legislature, if it chooses, can of course explicitly prohibit collective bargaining. Certainly, Education Law § 2590-g (14), as presently formulated, contains no such prohibition. Nor is the statute so unequivocal a directive to take certain action that it leaves no room for bargaining. The Board itself viewed its power to act under the statute as discretionary and it refrained for nine years from acting at all; the statute also explicitly gives the Board wide discretion concerning the substance of the reporting requirements.

Negotiation of disclosure requirements would not amount to an impermissible restriction of the Board’s responsibility to provide for the "management, operation, control, maintenance and discipline of schools.” It is difficult to conceive of any term and condition of employment that does not in some way impinge upon the operation or discipline of schools, but that does not mean that any agreement reached between the Board and the unions would constitute an unenforceable delegation of power (see, Matter of Board of Educ. v Merrick Faculty Assn., 65 AD2d 136, 141-142). Indeed, even while invalidating agreements in which a board surrendered its nondelegable responsibility for tenure decisions, we have permitted other agreements that obviously affected the tenure decision — for instance, by requiring certain procedures to be followed by the board (see, Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d, at 778, supra).

In cases where a stay of arbitration pursuant to a collective bargaining agreement has been sought on the ground that the remedy awarded might run afoul of a prohibition against the delegation of a duty, we have refused to stay the arbitration prematurely, unless no remedy fashioned by the arbitrator could possibly be consistent with public policy (see, Matter of Enlarged City School Dist. [Troy Teachers Assn], 69 NY2d 905, 906-907). Here the Board in effect asserts that there is no agreement it could reach with the unions that would not result in so severe a restriction of its power to manage the schools as to require us to set it aside on public policy grounds. Plainly, that cannot be so, and we refuse in advance to prohibit all negotiation on that broad speculation.

The Board next maintains that whether or not ascribable to any specific statute, the public stake in the integrity of school board employees is so compelling that public policy requires that the measures taken by the Board not be impaired by the process of negotiating with the employees whose integrity is in question. This open-ended "public policy” argument is more aptly denominated a "public interest” argument, for it is not based on statute, Constitution or even clear common-law principles — sources in which a public policy prohibition against a collective bargaining agreement might be found (see, Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 422-423 [Breitel, Ch. J., concurring]).

Issues of public concern, while unquestionably important, are not to be confused with the strong, unmistakable public policy that would — and then only rarely — require invalidation of a collective bargaining agreement. Here, what the Board asks is not even that we invalidate a collective bargaining agreement violative of public policy, but prospectively that we declare that the entire area of disclosure requirements is off-limits for negotiation — and on the basis of no body of law whatsoever. This, we decline to do. Apart from the precedent such a ruling would create for future cases, we recognize in this case, as did PERB, that reasonable people might well disagree about what measures were appropriate to further the goal of eliminating corruption. We cannot discern a public policy that requires that employees, prospectively, be denied any voice in the matter (see, Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23).

Thus, it cannot be said that a prohibition against collective bargaining is found, explicitly or implicitly, in Education Law § 2590-g (14), or in public policy.

Permissive Bargaining Subjects

We have also recognized that certain decisions of an employer, though not without impact upon its employees, may not be deemed mandatorily negotiable "terms and conditions of employment,” either because they are inherently and fundamentally policy decisions relating to the primary mission of the public employer (see, Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, supra), or because the Legislature has manifested an intention to commit these decisions to the discretion of the public employer (see, Matter of Webster Cent. School Dist. v Public Employment Relations Bd., 75 NY2d 619 [decided today]). There is no absolute bar to collective bargaining over such decisions, but the employer may not be compelled to negotiate them. They fall into the "permissive” category.

We reject the Board’s contention that its decision to promulgate these disclosure requirements represents such a managerial prerogative as a matter of law. To the extent that the Board argues that Education Law § 2590-g itself embodies a legislative choice to permit it unilaterally to impose disclosure requirements beyond those set forth in subdivision (13), we need not defer to PERB’s interpretation of the statute (see, Matter of Rosen v New York State Pub. Employment Relations Bd., 72 NY2d 42, 47-48, supra). However, upon our independent review of the statute, we see no evidence — let alone clear evidence — that the Legislature intended to withdraw the subject of disclosure requirements from the mandatory negotiating process despite their evident impact upon the employees forced to reveal voluminous information on pain of discipline and even dismissal (contrast, Matter of City School Dist. v New York State Pub. Employment Relations Bd., 74 NY2d 395).

We are similarly unpersuaded by the Board’s argument that the decision to impose reporting requirements was so closely tied to the success of its educational goals that it must be categorized for Taylor Law purposes as a policy choice. PERB’s conclusion that the disclosure requirements, while important to the Board’s interests, represented a still greater intrusion upon the employees’ terms and conditions of employment was not so plainly legally impermissible that we may set aside its expert assessment. Essentially, the Board argues that in balancing the factors that led to its conclusion, PERB gave inadequate consideration to the Board’s concerns for employee integrity, elimination of corruption and the like. Although the interests at stake might be weighed differently, PERB articulated a rational basis for its decision. It was hardly irrational for PERB — while recognizing that the Board (like all public employers) had a significant interest in the integrity of its workforce — to give even greater weight to the employees’ interest in being able to negotiate the requirements proposed by the Board. Nor was it irrational for PERB to determine that monitoring corruption is sufficiently attenuated from the primary educational mission or function of the school district that it may be outweighed by the other interests involved.

Finally, we accord no significance to the apparent failure of the Legislature to provide any final impasse resolution mechanism in the case of school district negotiations (compare, Civil Service Law § 209 [3] [e], with Civil Service Law § 209 [3] [f]). If the theoretical possibility of a negotiating deadlock were grounds for refusing to require negotiation of initiatives undertaken by the Board, little if any Board action would be subject to the Taylor Law’s broad command, and that would plainly be absurd. Any complaint the Board has in that regard must be directed to the Legislature; it provides no basis for overturning PERB’s determination.

PERB’s determination was neither irrational, unreasonable nor affected by any error of law. Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

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

Order reversed, etc.

      . On the operative dates, Education Law § 2590-g provided that the city board shall have power and duty to:
      "13. a. Prescribe regulations and bylaws requiring members of the city board, the chancellor, and any other officer or employee in schools and programs under the jurisdiction of the city board and the chancellor, to make disclosure to the city board, within ninety days of the effective date hereof for the one-year period preceding such effective date, and subsequent to such effective date upon the occurrence thereof, of the following information:
      "(1) any direct or indirect interest of the person reporting or his or her spouse in the furnishing of any supplies or materials, or in the doing of any work or labor, including the provision of professional services, or in the sale or leasing of any real estate, or in any proposal, agreement or contract for any of these purposes, in any case in which the price or consideration is to be paid, in whole or part, directly or indirectly, out of any public or school moneys, or any employment, labor, compensation, direct or indirect interest, membership or relationship to any individual, firm, company, corporation, business, organization or association doing business with the city of New York or the city school district of the city of New York.
      "(2) the source of any income, reimbursement, gift or other form of compensation for services rendered together with a description of such services arising out of interest disclosed pursuant to paragraph (1) above.

        "b. Regulations and bylaws authorized herein shall apply with equal force and effect to community board members, community superintendents and all other officers and employees in schools and programs under the jurisdiction of the community boards.
      "c. Willful failure to make full and timely disclosure shall constitute cause for removal from office of any member of the city board or for any other officer or employee disciplinary action and such other penalty as provided by law.
      "14. a. Prescribe regulations and bylaws requiring members of the city board, the chancellor and, for good cause shown, any other officer or employee in schools and programs under the jurisdiction of the city board and the chancellor, to submit to the city board, in the discretion of the city board, financial reports for themselves and their spouses.
      "b. The frequency and period of coverage, the designation of persons to submit such reports by name, title or income level or by a combination thereof, and the content of such reports, including minimum dollar amounts, shall be determined by the city board and such reports may include but not necessarily be limited to the following:
      "(1) amount and source of income for services rendered, together with a description of such services;
      "(2) amount and source of gifts, capital gains, reimbursements for expenditures, and honoraria;
      "(3) investments in securities and real property;
      "(4) amount of debts and names of creditors;
      "(5) outstanding loans and other forms of indebtedness due to person reporting or spouse, by name and amounts;
      "(6) trusts and other fiduciary relationships and their assets in which a beneficial interest is held.
      "c. Regulations and bylaws authorized herein shall apply with equal force and effect to community board members, community superintendents and all other officers and employees in schools and programs under the jurisdiction of the community boards.
      "d. Willful failure to file required financial reports shall constitute cause for removal from office of any member of the city board or for any other officer or employee disciplinary action and such other penalty as provided by law.”

        . The unions do not take issue with that aspect of PERB’s ruling on this appeal.

      . Our decision in this respect is limited to the claims presented to us by the parties. As noted in the administrative decisions, the disclosure requirements imposed by the Board go well beyond the types of financial disclosure specifically enumerated in the statute. The unions do not argue that the Board exceeded its statutory authority; by the same token, the Board does not argue that disclosure requirements more closely tailored to those enumerated in the statute might in some respects be permissive bargaining subjects only. Thus, we have no occasion to consider whether there might be certain limited powers reserved to the sole discretion of the Board under Education Law § 2590-g (14), as were found by the Administrative Law Judge to exist under Education Law § 2590-g (13).


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Charles Edmonson, Appellant.
    Argued March 20, 1990;
    decided May 3, 1990

      POINTS OF COUNSEL

      Lissa Griffin for appellant. I.

      Robert M. Morgenthau, District Attorney (Laurie Sapakoff and James M. McGuire of counsel), for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant’s appeal presents a novel question: whether evidence of a prior extrajudicial identification made by the complaining witness from a videotape taken by the police, canvassing a particular neighborhood and focusing on numerous passersby, is inadmissible as a matter of law under CPL 60.30. We hold that such evidence may be admitted as proof of identity provided there is nothing suggestive in the videotape or the manner in which it was presented to the witness. In this case, the hearing court’s findings "that the videotape procedure employed by the police officers and the subsequent viewing by the victim were neither suggestive nor prejudicial” (137 Misc 2d 408, 410) are supported by the evidence, and, accordingly, there should be an affirmance.

I

After a trial on charges stemming from a savage attack on the victim on the night of April 6, 1987, a jury found defendant guilty of attempted murder in the second degree (Penal Law § 125.25 [1]) and assault in the first and second degrees (Penal Law § 120.10 [2]; § 120.05 [1]). The victim testified that she met the man who attacked her on the street (she had seen him three or four times previously, she said). She went with him to a building in the Lincoln Housing Projects where the man repeatedly assaulted her, choked her into unconsciousness and caused severe injuries which required her hospitalization for almost three weeks. In the hospital, the victim gave the police a description of defendant and told them where she thought he could be found. Acting on this information, the police made a videotape and showed it to her. She identified the man who attacked her from the videotape and the police arrested defendant on April 25, 1987. The next day, she identified defendant at a precinct lineup.

On defendant’s motion to suppress the evidence of the victim’s identification of him from the videotape, the court conducted a suppression hearing during which it viewed the entire tape. At the hearing, the People presented one witness, Detective Edward May. He testified that he interviewed the victim at the hospital and received information from her concerning the attacker’s description and the possibility of finding him in the vicinity of 55 West 129th Street and Fifth Avenue between 131st and 132nd Streets.

The facts pertinent to the videotaping procedure and its viewing by the victim may be briefly summarized. Officer May with two other detectives stationed a surveillance van at various locations in the area described by the victim and randomly videotaped the passersby on the street. The 50-55-minute tape depicts the pedestrian traffic at 10 to 15 different locations, and focuses particularly on individuals generally matching the description provided. Of the men appearing in the videotape, 50 are seen in closeup or "zoom” shots. About one-half hour into the tape, the defendant is depicted in one of the closeup shots, standing at the entrance of 55 West 129th Street. He appears in the midst of a group of men seen going into and out of the building.

The victim’s viewing of the videotape took place at her home the day after her release from the hospital. Officer May, using a portable VCR and viewer, played the tape without sound. The victim recognized certain landmarks and various people shown on the screen. When defendant’s image appeared, she promptly and unequivocally identified him.

In its written decision concluding that the identification procedure was neither "suggestive nor prejudicial” and denying defendant’s suppression motion, the trial court made the following findings: "There was nothing in the manner in which the tape was made and thereafter viewed by the victim that unduly influenced her to identify the defendant. The officers admittedly concentrated the camera’s attention on those who matched the victim’s description of the assailant. The description could apply to many of those who came within camera range. Nothing in a viewing of the tape suggests that the defendant was singled out in any way. The tape was presented to the victim without prompting. She viewed the tape, and commented from time to time on people she recognized. Her identification of the defendant was immediate and certain when his image appeared on the tape.” (137 Misc 2d, at 410.) Defendant’s conviction was affirmed by the Appellate Division, without opinion.

II

Discussion of the admissibility of pretrial identification procedures under CPL 60.30 must start with a reiteration of our established rule that suggestive pretrial identifications are to be excluded (see, People v Adams, 53 NY2d 241, 251). The purpose of the rule is plain: to "reduce the risk that the wrong person will be convicted as a result of suggestive identification procedures employed by the police.” (Id., at 251.) As we recently noted in People v Riley (70 NY2d 523, 530), the "importance of identification evidence is, of course, self-evident. But then so, too, are the weaknesses and dangers of improper identification evidence. 'The influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other factor — perhaps it is responsible for more such errors than all other factors combined’ (Wall, Eye-Witness Identification in Criminal Cases, at 26, quoted in United States v Wade, 388 US 218, 229).”

Being mindful of these admonitions, we conclude that there is nothing inherently suggestive in the videotaping procedure employed here which should render evidence of the witness’s identification inadmissible. As found below, defendant was not singled-out, portrayed unfavorably, or in any other manner prejudiced by police conduct or comment or by the setting in which he was taped. In fact, it is undisputed that, at the time of the videotaping, the police neither suspected defendant nor had any reason to believe that the victim’s assailant would be among the pedestrians they might actually get on camera.

The police simply canvassed the area in which the victim had previously seen the assailant and videotaped all the pedestrian traffic at the locations she had mentioned. Though they took a closeup of defendant, they did the same for approximately 50 other individuals and did nothing, visually or through commentary, to distinguish defendant from the rest. Thus, when the police "zoomed in” on defendant, they did so only as part of a continuous flow of pedestrians, all of whom matched the victim’s general description of her assailant and were engaged in seemingly unremarkable activities.

Contrary to defendant’s contentions, the videotape and its presentation to the victim suffered none of the problems of identification procedures we have disapproved in prior decisions. The procedure here was certainly not akin to the type of precinct showup at issue in People v Ballott (20 NY2d 600). There, in what we condemned as a "grossly and unnecessarily suggestive” identification procedure (id., at 607), defendant, under arrest at the police station, was made to don a hat and a coat similar to those worn by the robber and to utter words which the robber had reportedly spoken to the victim. The videotaping procedure here is in no way analogous. The viewing of defendant was not contrived or posed. He was videotaped going about his business on the street without interference or direction by the police.

Nor is there any similarity here to the fatally flawed showups in People v Riley (70 NY2d 523), People v Rodriguez (id.), or People v Adams (53 NY2d 241, supra). In Riley, the two suspects identified by the armed robbery victim were the only nonuniformed persons in the station house room and were positioned near a table bearing the stolen property and a weapon; in Rodriguez, the two identified suspects were shown handcuffed and in civilian clothes, being escorted into the police barracks by two uniformed officers; and in Adams, the victims were first informed that the police had the three suspected robbers in custody and then shown the suspects being held, by police officers, with their hands behind their backs. The videotape procedure here bears no resemblance to those showups. Defendant appeared on the videotape by happenstance among many pedestrians in natural, nonpolice surroundings; he was viewed without any suggestive comment or conduct by police.

For like reason, the videotaping used in this case does not suffer the potential prejudice we have recognized in photo arrays. A "rogues’ gallery” of "mug shots” shown to a witness or mentioned to a jury is likely to create an inference that the identified suspect has had previous trouble with the law (see, People v Caserta, 19 NY2d 18, 21). Moreover, such photographs are sometimes of poor or uneven quality and easily distorted (id.). By sharp contrast, a videotape, randomly canvassing pedestrians on the street, imputes no prior criminality to those it depicts, and it reflects their likeness and physical characteristics more uniformly and completely than does an array of still photographs (see, People v Tunstall, 97 AD2d 523, 524, mod 63 NY2d 1).

Finally, we have previously approved the admission into evidence of a videotaped lineup. In People v Tunstall (63 NY2d 1, 10, modfg 97 AD2d 523, supra), we adopted the reasoning of the Appellate Division which found videotaping to be a fair and effective tool in identification. What that court said in the context of the lineup there is equally relevant here: "Unlike photo array identifications videotapes can accurately depict the makeup of a lineup without imputing prior involvement with the law. Bolstering is also minimal. Since the identifying witness’ credibility is the only one under scrutiny, videotaped lineups avoid the possibility that the credibility of third parties will be used to strengthen a questionable identification” (97 AD2d, at 524 [citations omitted]). Indeed, the videotaping procedure used here is, in some respects, even less suggestive than the videotape of a lineup. A lineup, whether on videotape or in person, typically involves a small number of participants, at least one of whom is under suspicion. A videotaped canvass of pedestrians on the street does not focus attention on so few a number of individuals (cf., People v Landor, 92 AD2d 625, 626 [victim immediately pointed out defendant in room containing 200 people]), nor does it even suggest that a suspect is among them. Of course, videotaping could be abused in such a way as to single out a police suspect to a witness. But, when used with complete randomness, as it was here, it can avoid the intimation of suspicion that is sometimes difficult to prevent in a lineup.

In short, just as there can be no objection to permitting a victim to canvass an area for her attacker, there can be none to a videotaping procedure, such as that used here, which simply permits her to do the same without actually being on the streets. Defendant’s remaining contentions are either without merit or unpreserved.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order affirmed.


author: Simons, J.

text:
    Teresa Mas et al., Respondents, v Two Bridges Associates, by National Kinney Corp., Now Known as Andal Corp., et al., Respondents, and Otis Elevator Company, Appellant.
    Argued March 21, 1990;
    decided May 3, 1990

      POINTS OF COUNSEL

      Steven J. Ahmuty, Jr., for appellant.

      Sally Weintraub for Teresa Mas and another, respondents.

      Eric A. Portuguese and Steven B. Prystowsky for Two Bridges Associates and another, respondents.
   OPINION OF THE COURT

Simons, J.

Plaintiff, Teresa Mas, was injured when attempting to escape from an elevator stuck between floors in her apartment building. She and her husband instituted this action against defendant Two Bridges Associates, the owner of the building, defendant Grenadier Realty Corporation, the managing agent and defendant Otis Elevator Company, which had contracted to maintain the elevator, seeking damages for Ms. Mas’ personal injuries and her husband’s derivative claim. Plaintiffs asserted that defendants negligently permitted the elevator to remain in a dangerous and defective condition and that the Owner negligently failed to provide assistance to Ms. Mas or notify Otis or the other rescue personnel following its malfunction. Defendants interposed cross claims for indemnification and contribution against each other.

After trial the jury returned a verdict of $400,000 in plaintiff’s favor, apportioning fault 5% against plaintiff for her comparative negligence, 10% against defendant Owner for failure to provide assistance, and 85% against the Owner and Otis for failure to maintain and repair. The trial court subsequently granted defendant Owner judgment on its cross claim against Otis for indemnification of the 85% portion of the verdict attributable to negligent maintenance and repair of the elevator. The Appellate Division affirmed, without opinion, and we granted defendant Otis Elevator Company leave to appeal.

Otis contends that the court improperly instructed the jury on the emergency doctrine and therefore seeks a new trial on liability and damages or, failing that, a reversal of the Owner’s indemnity judgment and a new trial to reapportion the damages between the defendants. It contends that indemnity may not be awarded because a properly charged jury would have found the Owner actually at fault for failing to maintain the elevator but that even if the Owner was only vicariously liable for Otis’ failure to maintain the elevator, the Owner cannot have common-law indemnity when it was at fault, as the jury found, for failing to provide emergency assistance. For the reasons which follow, we reject Otis’ contentions and affirm the order of the Appellate Division.

The action arises from the following facts.

On the afternoon of September 15, 1984 at approximately 4:00 p.m., plaintiff and Reuben Requena, a young man unknown to her, entered an elevator on the ground floor of the premises of 275 Cherry Street in downtown Manhattan. Plaintiff pressed the button for the 4th floor, intending to return to her apartment, and Requena pressed the button for the 26th floor, intending to visit his sister who lived there. The elevator passed the 4th floor without stopping and proceeded to the top of the building, shaking violently from side to side and making loud banging noises as it rose. Upon reaching the 26th floor the elevator stopped momentarily, the doors opened and closed quickly, and then the elevator made a booming sound and suddenly began sliding down in an uneven manner, eventually coming to rest between the 25th and 26th floors. The light went out when the elevator stopped. The passengers sounded the alarm bell for approximately 20 minutes without response. They also pressed various other buttons but the elevator failed to move. Plaintiff testified that while confined she was terrified that "the elevator was going to fall and that [she] would be killed.” According to Requena, plaintiff was very nervous; she paced the elevator, perspiring, crying, shaking, screaming for help and praying. He testified that it was becoming very hot and that he thought plaintiff was going to have a heart attack or collapse.

Requena was in some distress himself. He is asthmatic and was having trouble breathing in the confinement of the elevator. Accordingly, after about 20 minutes, he pried open the elevator doors and the two passengers observed the 25th floor landing about 4 feet below them. After waiting an additional 10 or 15 minutes with the doors open, Requena stated he was going to leave the elevator to seek assistance. Plaintiff pleaded with him not to leave her there alone, explaining that she was afraid she would die. They agreed that she would exit while he held the doors open and then he would follow. When plaintiff jumped to the 25th floor she landed on her right foot, injured it, and fell to the floor. Requena followed her. Two building security guards soon arrived and plaintiff was transported to the hospital for treatment of her foot.

At the conclusion of the trial the court instructed the jury that the Owner and Otis were responsible for maintaining the elevator, the Owner because it had a nondelegable duty imposed by section 78 of the Multiple Dwelling Law and Otis because of its contract with the Owner assuming that responsibility. The court also instructed the jury that the Owner had a duty to use reasonable care to respond to the elevator emergency alarm. The court denied Otis’ request to charge that the Owner could be liable "irrespective of Otis’ failure” to maintain the elevator, if "the jury were to find that the building owner had actual notice of a recurring problem and should have done something” about it. Interrogatories were submitted to the jury embracing the two accepted theories of liability and it was instructed to find the percentage of negligence, if any, attributable to each party.

The jury returned a verdict in plaintiffs favor and apportioned fault between the parties. The trial court subsequently granted the Owner indemnity from Otis on the cause of action seeking damages for negligent inspection and maintenance of the elevator.

Otis’ claim that it was error to charge the emergency rule does not require extended discussion.

The trial court instructed the jury that "a person faced with an emergency who acts without opportunity for deliberation * * * may not be charged with contributory negligence, if she acts as a reasonably prudent person would act under the same emergency circumstances” that an emergency is "a sudden and unforeseen condition not brought about or contributed to by [the plaintiffs] own negligence.” As the words make clear, the court stated an objective standard of care not, as Otis contends, a subjective standard.

Otis contends further, however, that the court should not have delivered the charge because the event was not sudden and unforeseeable and did not require immediate action by plaintiff leaving her little time for reflection or deliberate judgment. Plaintiff counters that there was no error but if there was, the error was harmless because the jury found her 5% responsible for her injuries.

We think that on the evidence in this case the emergency was not dissipated by a lapse of time, as a matter of law, and that the question was properly submitted to the jury. After a violent and noisy ride 22 stories past the floor plaintiff had designated, the elevator in which she was riding stopped suddenly and then dropped several feet. She remained confined in the dark for over 20 minutes, without assistance and without assurance that the elevator would not fall further at any minute. The elevator had failed to respond to the controls and it continued to do so as she and Requena pressed buttons and tried to move to a floor where they could exit safely. The circumstances were obviously perilous and the lapse of time did not necessarily permit plaintiff the opportunity for cautious deliberation because the precariousness of her situation continued unabated (cf., Wagner v International Ry. Co., 232 NY 176). Thus, unlike cases relied upon by Otis in which the emergency had ended leaving plaintiff in a position of safety (see, Mack v Altmans Stage Light. Co., 98 AD2d 468; Guida v 154 W. 14th St. Co., 13 AD2d 695, affd 11 NY2d 731), the jury in this case could find that the emergency continued throughout the period of confinement and that when plaintiff jumped she acted without an opportunity for reflection or deliberation. Accordingly, we find no error in the court permitting the jury to do so.

Alternatively, Otis contends that the Owner was not entitled to indemnity on the portion of the verdict attributable to negligent inspection and repairs. It attacks the judgment on two grounds. First, it urges that notwithstanding its maintenance contract, the Owner had a duty to shut down the elevator because it had notice of its dangerous condition. Thus, it contends that the Owner’s liability for maintenance of the elevator was not solely vicarious, arising from Otis’ culpable conduct, and it cannot recover in common-law indemnity.

Second, Otis maintains that there may be no indemnity because, as the jury found, the Owner was also at fault for failing to respond to the alarm and, inasmuch as the parties are in pari delicto, all damages must be apportioned.

The first issue involves an interpretation of the contract to determine the scope of Otis’ duty to maintain and repair the elevator. The second presents a novel question of the application of the legal principles applying to indemnity and contribution in a situation in which the Owner’s liability is based on two theories: failure to respond, which involves primary negligence and for which there may be contribution in an appropriate case but not indemnity, and failure to maintain, which involves vicarious liability because of the contract with Otis, and could, standing alone, warrant a recovery in indemnity.

The owner of a multiple dwelling owes a duty to persons on its premises to maintain them in a reasonably safe condition (Multiple Dwelling Law § 78). This duty is nondelegable and a party injured by the owner’s failure to fulfill it may recover from the owner even though the responsibility for maintenance has been transferred to another. As between the owner and one voluntarily undertaking responsibility for maintenance, however, the party assuming the contractual duty is liable to the owner for the damages the owner must pay. We explained these principles in Rogers v Dorchester Assocs. (32 NY2d 553), a case in which the property owner had entered into an exclusive maintenance agreement with Otis Elevator Company much like the one presently before us. We held there that the owner was liable to the injured party because of the statutory provision but that indemnification was not barred because of the owner’s nondelegable duty; as between the owner and Otis the former "had the right, under the maintenance contract, to look to Otis to perform [the owner’s] entire duty to plaintiff.” (Id.., at 563.) Notwithstanding this general rule, Otis maintains that the Owner may not obtain indemnity here because it also had notice of the unsafe condition before the accident and thus, it had a duty to shut down the elevator or take other appropriate safety precautions.

Defendant Otis had executed an agreement with the managing agent, acting on behalf of the Owner, in which it assumed full responsibility for (1) keeping the equipment properly adjusted, (2) using all reasonable care to maintain the elevator equipment in proper and safe operating condition, (3) regularly and systematically examining, adjusting and, if necessary, repairing elevator parts, (4) examining periodically all safety devices and governors, (5) providing emergency minor adjustments, and (6) maintaining parts on the premises for routine maintenance. For this purpose, Otis maintained a storeroom on the premises and agreed to have someone available 24 hours a day 7 days a week. It had access to enter the building at will to service the elevators and its serviceman testified that he inspected the elevators every day and spent an average 4-6 hours per vyeek repairing and maintaining them.

In view of this broad assumption of responsibility, the trial court correctly ruled that Otis had undertaken the duty to remove the elevator from service if it had notice of the problem. Thus it was irrelevant, for purposes of cross-over liability, that the Owner also knew of the problem and could have shut down the elevator before the accident (see, Rogers v Dorchester Assocs., supra, at 562).

Finally, Otis asserts that common-law indemnity is not available to the Owner because the jury found it guilty of primary negligence contributing to plaintiff’s injuries in failing to respond to the elevator alarm. That being so, Otis maintains the third-party claim, if the Owner has one, must be for contribution, not indemnity, and there must be a new trial to apportion the damages between the defendants.

The short answer is that the jury has already apportioned the primary negligence of the defendants: 10% to the Owner for failure to respond and 85% to Otis for failure to maintain the elevator. The Owner is liable for failure to maintain also, but not because it has been negligent, only by imputation of law. For policy reasons both are answerable to plaintiff, but their "wrong” is the same and thus there is no rational way to apportion the damages between them on the theory of negligent maintenance; any apportionment would necessarily result in 100% liability against Otis in favor of the Owner because Otis had the "entire duty to plaintiff” under the contract (see, Rogers v Dorchester Assocs., supra, at 563; Prosser and Keeton, Torts § 52, at 346 [5th ed]; see also, CPLR 1401, 1404 [b]). That being so, the question presented is whether indemnity is foreclosed by the finding that the Owner was also guilty of primary negligence on a separate theory of liability.

Our prior cases have not addressed the issue. Generally, they have considered either indemnity in favor of a tort-feasor who is vicariously liable for another’s negligence without having breached any duty owed to the injured plaintiff (see, Kelly v Diesel Constr., 35 NY2d 1; Rogers v Dorchester Assocs., supra), or in favor of a tort-feasor liable for damages arising for breach of a particular duty owed to the injured plaintiff and seeking indemnity over from another who has breached a related duty owed to the injured plaintiff (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; D’Ambrosio v City of New York, 55 NY2d 454). Otis maintains that contribution and indemnity are mutually exclusive and since the jury’s verdict calls for contribution between the defendants, the entire verdict must be apportioned; contribution and indemnity cannot both be at work between the same parties in one verdict.

The conceptual basis of contribution and indemnity have been traced many times before (see, e.g., Glaser v Fortunoff of Westbury Corp., 71 NY2d 643, 646; Guzman v Haven Plaza Hous. Dev. Fund Co., supra, at 567-568; D’Ambrosio v City of New York, supra; McDermott v City of New York, 50 NY2d 211, 216-217). Briefly, in contribution, the tort-feasors responsible for plaintiff’s loss share liability for it. Since they are in pari delicto, their common liability to plaintiff is apportioned and each tort-feasor pays his ratable part of the loss. In indemnity which arises commonly in cases involving vicarious liability (see, e.g., Rogers v Dorchester Assocs., 32 NY2d 553, supra [duty to maintain premises]; Logan v Esterly, 34 NY2d 648 [public highway construction]; Traub v Dinzler, 309 NY 395 [automobile owner and driver]; see generally, Restatement [Second] of Torts § 886B [2]) a party held legally liable to plaintiff shifts the entire loss to another. The right to do so may be based upon an express contract, but more commonly the indemnity obligation is implied, as it is here, based upon the law’s notion of what is fair and proper as between the parties.

Implied indemnity is a restitution concept which permits shifting the loss because to fail to do so would result in the unjust enrichment of one party at the expense of the other (McDermott v City of New York, supra, at 216-217; see also, Guzman v Haven Hous. Dev. Fund Co., supra, at 568; Dole v Dow Chem. Co., 30 NY2d 143, 152). Generally, it is available in favor of one who is held responsible solely by operation of law because of his relation to the actual wrongdoer, but authorities have noted that “the principle is not * * * limited to those who are personally free from fault” (Prosser and Keeton, Torts § 51, at 342 [5th ed]; see also, Restatement [Second] of Torts § 886B [2], comment k). The jury having found separate grounds of liability in this case and apportioned the damages attributable to each theory, we see no reason why equitable principles should prevent a defendant from recovering a loss occasioned by imputation of law, notwithstanding its sole liability for another part of the damages based upon an act of primary negligence.

The purpose of all contribution and indemnity rules is the equitable distribution of the loss occasioned by multiple defendants. In furtherance of that purpose the courts have granted relief in a variety of cases in favor of the party who, in fairness, ought not bear the loss, allowing it to recover from the party actually at fault. They have found indemnity appropriate because of a separate duty owed the indemnitee by the indemnitor (thus the indemnitee may recover for the wrong to it), because there is "a great difference” in the gravity of the fault of the two tort-feasors, or because the duties owed to the injured plaintiffs and causing injury are disproportionate (see, Prosser and Keeton, op. cit., at 344; see also, Davis, Indemnity Between Negligent Tortfeasors: A Proposed Rationale, 37 Iowa L Rev 517, 544-553).

These considerations are hardly precise, nor do they supplant our well-settled rules on the subject, but they illustrate that indemnification of this Owner’s claim for its loss on the negligent maintenance theory is appropriate. Had plaintiff’s verdict rested solely on the failure to maintain the elevator, the Owner’s right to indemnification would be cleár. Otis had voluntarily promised that it would inspect, repair and maintain the elevator and the Owner was entitled to rely on that promise and recover under settled rules of indemnity. Moreover, failure to provide the Owner with relief here will result in it being responsible for a disproportionate share of the entire verdict, far exceeding the measure of its actual wrongdoing. The damages to plaintiff arise principally from Otis’ primary negligence. The Owner breached a separate and discrete duty to provide assistance after the plaintiff was trapped between floors, and for that it alone has been held in damages. But that does not diminish Otis’ negligence in subjecting the passenger in the elevator to risk. If each party is to be accountable for its fault, then Otis should answer to the Owner for its negligence in maintaining the elevator.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone and Hancock, Jr., concur; Judge Bellacosa taking no part.

Order affirmed, with costs.

       The owner and managing agent appeared jointly and, for convenience, will be referred to as the Owner.
      The derivative action of plaintiff’s husband is not before us on appeal.