author: Bellacosa, J. Simons, J.

text:
    [658 NE2d 192, 634 NYS2d 415]
    The People of the State of New York, Respondent, v Willie Buie, Appellant.
    Argued September 13, 1995;
    decided October 26, 1995

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender of Monroe County, Rochester (Stephanie Batcheller of counsel), for appellant.
    I. The trial court deprived defendant of a fair trial and due process of law by admitting the 911 tape in People’s case-in-chief which violated the rules against use of prior consistent statements and did not properly fall within the present sense impression exception to the hearsay rule. (People v Brown, 80 NY2d 729; People v Huertas, 75 NY2d 487; People v Watson, 100 AD2d 452; People v Luke, 136 Misc 2d 733, 147 AD2d 990; People v Jardin, 154 Misc 2d 172; People v Brown, 70 NY2d 513; People v Connors, 149 AD2d 606; People v McClean, 69 NY2d 426; People v Davis, 44 NY2d 269; People v Singer, 300 NY 120.) II. The police officers’ testimony impermissibly bolstered the complaining witness’s identification and improperly impeached the same witness’s in-court identification of another person and thereby deprived defendant of a fair trial. (People v Trowbridge, 305 NY 471; People v Hall, 82 AD2d 838; People v Holt, 67 NY2d 819; People v Annis, 48 AD2d 622; People v Zanfordino, 78 AD2d 558; People v Faison, 126 AD2d 739; People v Bowman, 122 AD2d 849; People v Caseria, 19 NY2d 18.) III. The Court below made an incorrect determination that the error in this case would be harmless in applying the "significant probability” standard for errors of statutory nature. (People v Reddick, 65 NY2d 835; People v Johnson, 57 NY2d 969; People v Crimmins, 36 NY2d 230; People v Trowbridge, 305 NY 471; People v Bowman, 122 AD2d 849; People v Caseria, 19 NY2d 18.)

      Howard R. Relin, District Attorney of Monroe County, Rochester (Robert Mastrocola of counsel), for respondent.
    I. The trial court properly admitted the 911 tape. (People v Brown, 80 NY2d 729; Ando v Woodberry, 8 NY2d 165; Ohio v Roberts, 448 US 56; California v Green, 399 US 149; People v Sugden, 35 NY2d 453; People v Anthony, 24 NY2d 696; People v McDaniel, 81 NY2d 10; People v McClean, 69 NY2d 426; People v Davis, 44 NY2d 269; Crawford v Nilan, 289 NY 444.) II. There was no improper bolstering and/or impeachment in the testimony of the police witnesses. (People v West, 56 NY2d 662; People v Figueroa, 153 AD2d 576.)
   OPINION OF THE COURT

Bellacosa, J.

Defendant appeals by leave of a Judge of this Court from an order affirming his conviction, after a jury trial, of burglary and related offenses. The evidentiary law question is whether the admission of a 911 tape under New York’s present sense impression hearsay exception, where the declarant was available and testified at trial, improperly "bolstered” that victim-witness’s testimony. We hold first that the declarant’s availability at trial does not preclude the admissibility of the tape under that hearsay exception (see, People v Brown, 80 NY2d 729) and that its admission did not constitute improper bolstering in this case.

I

This case arises out of a break-in at a private home in Rochester in the early morning hours of April 18, 1992. The sound of breaking glass awakened the homeowner, who immediately dialed 911 on his cellular telephone and described the unfolding events to the operator. Under standard practice, the call was recorded and preserved, and the integrity of the tape is not in issue.

While speaking to the operator, the owner left his house and saw a figure also departing and carrying the owner’s black briefcase, which contained his camera equipment, all of which had been inside the house moments earlier. The owner described the burglar’s features with great particularity. He added that the perpetrator was wearing dark gray or dark green, midlength, solid-colored, baggy shorts, a white T-shirt, white socks, and white sneakers. This description essentially matched that of the defendant at the time of his arrest, shortly after the break-in.

After leaving the house, the burglar was followed by the owner, who kept talking on his cellular telephone. The burglar got to the main road and then began to run. The owner briefly lost sight of him, but spotted the black briefcase a short distance down the road, next to a driveway leading to a neighbor’s open garage. At that point, two police officers arrived and quickly found the perpetrator lying down in a car inside the neighbor’s garage. He was perspiring and his T-shirt was bloody. The owner identified him to the police as the man who had broken into his home. The police investigation noted a broken window at the owner’s home, and a stain taken from the wall next to that window tested positive for human blood.

At trial, when asked to identify the person who broke into his home, the owner inexplicably did not point to the defendant, but instead identified the deputy sitting next to the defendant. The trial court allowed the victim to testify about his prior identification of the defendant to the police, both before and after the in-court misidentification. That is not in issue here. The court also precluded the police officers from referring to the victim’s prior identification at the scene, and that is also not in issue. Both arresting officers testified that they arrested the defendant in the garage in the presence of the owner and that is the subject of an unpreserved Trow-bridge-type bolstering claim (People v Trowbridge, 305 NY 471; see also, CPL 60.25, 60.30).

The essence of the controversy before us revolves around the trial court’s admission, over a defense objection, of the four-minute tape of the burglary victim’s conversation with the 911 operator. The tape ended shortly before the events that took place at the neighbor’s garage when the police arrived. In a pretrial ruling, the court stated that it would allow the evidence in under the present sense impression exception to the hearsay rule. At trial, the evidence was not objected to as such, but rather, defendant’s objection was based on the availability of the witness to testify and a claimed impermissible "bolstering” of the witness through the use of his prior, consistent, recorded statement. Defendant was convicted on all counts.

The Appellate Division unanimously affirmed, with two Justices concurring separately. The majority held that because the victim-witness was available, the confrontation concerns associated with unavailable witnesses were not implicated. Rather, though it found no error, it saw a potential problem in the bolstering of the victim’s testimony by admitting a prior consistent recorded statement. The Court’s view, with which we agree, was that the evidence was properly admitted because it "did more than mimic the in-court testimony of the owner” (201 AD2d 156, 160). It stated that the tape "gave the jury a temporal and auditory sense of the events” and, thus, "should not be viewed in the same light as a prior consistent written statement” (id.). The two concurring Justices stated that because the witness was available, there was no "pressing need” for the evidence and it should not have been admitted (id., at 163). They further stated that in all cases, the present sense impression exception should be employed only when the declarant is unavailable. The concurring Justices joined the Court to affirm, however, on harmless error grounds.

IL

The 911 tape is hearsay, as an out-of-court statement admitted for the truth of the matter asserted (see, People v Caviness, 38 NY2d 227, 230; Prince, Richardson on Evidence § 8-101, at 497 [Farrell 11th ed 1995]). The purpose of presenting the tape to the jury was to prove the unfolding events described in the burglary victim’s contemporaneously recorded narrative.

This Court recently adopted the present sense impression exception to the rule against hearsay as the law in New York (People v Brown, 80 NY2d 729, supra). Brown presented a similar situation with a different twist, in that the evidence at issue there was a 911 tape of a bystander’s description of the perpetrators of a burglary where the declarant was not fully identified and, therefore, not present or available to testify. In holding that the admission of the tape was proper, the Court added that "spontaneous descriptions of events made substantially contemporaneously with the observations are admissible if the descriptions are sufficiently corroborated by other evidence” (id., at 734). The corroboration aspect is not in issue in this case.

We left open in Brown, however, the question of whether a declarant must be unavailable before present sense impression evidence is admissible. Defendant in this case argues that dictum in a footnote in Brown signalled this Court’s preference for an unavailability requirement and, in any event, such a threshold is necessary to ensure the evidence’s trustworthiness (People v Brown, supra, at 732, n 1).

We hold that the present sense impression exception does not require a showing of the declarant’s unavailability as a sine qua non to admissibility, though that factor may be weighed by Trial Judges in assessing the traditional probativeness versus undue prejudice calculus for allowing evidence before a petit jury.

A fundamental precept of the law of hearsay is that certain exceptions require that the proponent of the evidence prove the declarant’s unavailability as a witness at trial, while other exceptions treat availability as immaterial (4 Weinstein and Berger, Weinstein’s Evidence fl 804 [a] [01], at 804-40 — 804-41 [1995]; 2 McCormick, Evidence § 253, at 130 [4th ed 1992]; Proposed NY Code of Evidence §§ 803, 804 [1980, 1982, 1991]). For example, unavailability is not required for certain exceptions, such as the business records exception (see, CPLR 4518; Meiselman v Crown Hgts. Hosp., 285 NY 389, 396-397; People v Klein, 105 AD2d 805, 806, affd 65 NY2d 613), the excited utterance exception (see, People v Caviness, 38 NY2d 227, 232, supra; Fisch, New York Evidence § 1000, at 577 [2d ed 1977]), and the exception for official entries (see, CPLR 4520; Fisch, op. cit., § 953, at 550). On the other hand, a declarant’s unavailability is a prerequisite to the admission of statements under several other hearsay exceptions, including the declaration against penal interest (see, People v Thomas, 68 NY2d 194, 197; People v Settles, 46 NY2d 154, 167; People v Brown, 26 NY2d 88, 91), the exception for former testimony (see, CPL 670.10; People v Ayala, 75 NY2d 422, 428, rearg denied 76 NY2d 773; People v Arroyo, 54 NY2d 567, 570, cert denied 456 US 979), and the exception for statements of pedigree and family history (see, Aalholm v People, 211 NY 406, 412).

Neither this Court nor courts of other jurisdictions have fashioned a doctrinal distinction to classify which exceptions to the hearsay rule should require the declarant’s unavailability as a condition for admissibility (4 Weinstein and Berger, op. cit., [[ 804 [a] [01], at 804-40 — 804-41; 2 McCormick, op. cit., § 253, at 130). Rather, that factor and the particular exceptions to which it adheres have developed on the typical case-by-case basis (2 McCormick, op. cit., § 253, at 130). The drafters of the Federal Rules of Evidence, for example, placed exceptions into the "unavailability-needed” category when, in their judgment, the character of the hearsay was not sufficiently or inherently trustworthy to otherwise receive the evidence (Advisory Comm Notes, Fed Rules Evid, rule 804; 4 Weinstein and Berger, op. cit., fl 804 [a] [01], at 804-40). As to the alternative "availability-immaterial” category, Professor McCormick suggests that some exceptions are placed into that grouping because those hearsay statements are by their nature at least as trustworthy as live testimony (2 McCormick, op. cit., § 253, at 130).

Virtually no jurisdiction imposes "unavailability” as an absolute prerequisite to admissibility of present sense impression evidence or its close cousin, the excited utterance (4 Weinstein and Berger, op. cit., ]j 803 [1] [02], at 803-95 — 803-100; see, People v Brown, 80 NY2d 729, 736, supra; see also, Note, The Present Sense Impression, 56 Tex L Rev 1053 [1978]; compare, People v Caviness, 38 NY2d 227, 232, supra; Fisch, op. cit., § 1000, at 577). Moreover, the vast majority of States have adopted some version of rule 803 (1) of the Federal Rules of Evidence, the codification of the present sense impression, which does not require the declarant’s unavailability (4 Weinstein and Berger, op. cit., [f 803 [1] [02], at 803-95 — 803-100). Finally, unavailability was never required at common law (2 McCormick, op. cit., § 271, at 211-213).

That array of authorities and our independent analysis convince us that there is no need in logic or in practical procedural protection terms to add this extra unavailability requirement on a per se basis to the opportunity to offer present sense impression evidence. Moreover, contrary to defendant’s argument here, in Brown this Court simply noted the difference between the 1982 Proposed NY Code of Evidence and the Federal rule, not a preference for one over the other. While the proposed New York Code (1982) would have required the declarant’s unavailability (People v Brown, 80 NY2d 729, 732, n 1, supra), the 1980 proposed version would not have (Proposed NY Code of Evidence § 803 [1] [1980]). The 1991 version omitted this hearsay exception altogether, except to allow for a hybrid common-law development under the "residual,” catch-all exception to the hearsay rule (see, Comment of NY Law Rev Commn, reprinted in Proposed NY Code of Evidence § 806, at 241 [1991]). These unenacted, fluctuating formulations are of no value to assist in deciding anything at issue in this case.

Significantly, when this Court sought to guarantee the threshold trustworthiness of the exception by adding New York’s unique version of a corroboration element (People v Brown, 80 NY2d 729, 737, supra; see, Note, The Present Sense Impression, 56 Tex L Rev 1053, 1068-1074 [1978]; 2 McCormick, op. cit., § 271, at 214-215), it went beyond the Federal counterpart (Fed Rules Evid, rule 803 [1]). Analogizing to the excited utterance exception, however, the Court reasoned that without the extra assurance of reliability that excitement affords, courts should not admit present sense impressions unless some evidence exists, independent of the statement itself, tending to corroborate that the statement was made "spontaneously] and * * * contemporaneously with the events described” (People v Brown, 80 NY2d 729, 737, supra; compare, People v Brown, 70 NY2d 513, 518; Fisch, op. cit., § 1000, at 576). This case incontrovertibly satisfies that aspect.

Having concluded that admission of a present sense impression does not require the declarant’s unavailability, we note further that in this case the burglary victim’s availability and testimony do not otherwise preclude the admissibility of the 911 tape. As it is undisputed that the 911 call in this case was contemporaneous with the victim’s observations and independently corroborated by much other evidence and, thus, constituted a present sense impression, we conclude that the admission of the tape was also not otherwise error or an abuse of the trial court’s discretion (see generally, Richardson, op. cit., § 1-304, at 17). Of course, trial courts may take into consideration a witness’s availability or actual presence in court when balancing the probative value of present sense impression evidence against the potential for undue prejudice or jury confusion (People v Hudy, 73 NY2d 40, 68 [Wachtler, Ch. J., dissenting]; People v Alvino, 71 NY2d 233, 242; Richardson, op. cit., § 4-103, at 138).

Finally, the notion in this respect that the proponent of such evidence has an obligation to demonstrate some special "necessity” before probative evidence is deemed admissible finds no support in our evidentiary principles. The concurrence adverts to a statement in People v Brown, noting that if an independent witness is "available to testify to the events, there is certainly no pressing need for the hearsay testimony” (80 NY2d 729, 736, supra [emphasis added]). However, that statement merely explains our rejection in Brown of another proposed requirement, that present sense impression evidence be corroborated by an "equally percipient witness” (id.) That explanation in no way was intended to add another component to the opportunity to tender evidence under this newly adopted hearsay exception.

Rather, we wish to reinforce in the application of several evidentiary rubrics to this case that "[all] relevant evidence is admissible unless its admission violates some exclusionary rule” (People v Lewis, 69 NY2d 321, 325; Richardson, op. cit., § 4-101, at 136). Neither Brown nor any other applicable authority requires a novel, threshold showing of "necessity” or "pressing need.” As we have said strongly in another context, the People are "not bound to stop after presenting minimum evidence but could go on and present all the admissible evidence available to them” (People v Alvino, 71 NY2d 233, 245, supra [emphasis added]). Then-Judge Fuld summed up an apt parallel guidepost in his concurrence in Fleury v Edwards (14 NY2d 334, 341): "Absent some strong public policy or a clear act of pre-emption by the Legislature, rules of evidence should be fashioned to further, not frustrate, the truth-finding function of the courts in civil cases.” This reasoning applies as well, within constitutional limits not applicable here, to criminal cases.

IIL

A.

Defendant next argues that admitting the 911 tape in this case improperly "bolstered” the testimony of the victim witness by merely repeating a consistent version of his trial testimony. First of all, as the Appellate Division noted, the character of this evidence is different from typical prior consistent statement material and did far more than "mimic” the in-court recollective testimony. Also, because the 911 tape at issue is admissible under an independent hearsay exception, and because of this Court’s well-established preference for cross-examination of hearsay declarants, we reject the bolstering concept as inapplicable in this case.

The term "bolstering” has doctrinally referred to two distinct situations, both related to the rule against hearsay. First, in the context of eyewitness identification, the testimony of a third party (typically, a police officer) to the effect that the witness identified a defendant as the perpetrator on some prior occasion is generally inadmissible under the rule enunciated in People v Trowbridge (305 NY 471, supra; see also, People v Holt, 67 NY2d 819; People v Blue, 155 AD2d 472). The undeviating rationale behind this rule is that such identification evidence is hearsay, not falling within any exception (People v Trowbridge, supra, at 475; People v Jung Hing, 212 NY 393, 401-404; Fisch, op. cit., § 492, at 326). The Legislature has since codified and modified the Trowbridge rule, allowing for some third-party testimony about a previous identification if a witness cannot at trial identify a defendant as the person who committed the crime (see, CPL 60.25; see also, CPL 60.30). That is not a problem in the case before us.

The second common use of the term "bolstering,” and the one applicable here, refers to the fortification of a witness’s testimony and credibility through the use of a prior consistent statement (People v McDaniel, 81 NY2d 10, 16; Crawford v Nilan, 289 NY 444, 450). Such evidence may be admissible, but only to rebut a claim of recent fabrication (People v McDaniel, supra, at 16; People v Davis, 44 NY2d 269, 277). A prior consistent statement is admitted under these limited circumstances as an exception to the hearsay rule (see, People v Baker, 23 NY2d 307, 323; People v Concepcion, 175 AD2d 324, 326, n, Iv denied 78 NY2d 1010; Richardson, op. cit., § 8-615, at 654; Martin, Prior Consistent Statements, NYLJ, June 10, 1994, at 3). Significantly, the prior consistent statement prohibition and exception are anchored to the impeachment and rehabilitation of witnesses (People v Davis, 44 NY2d 269, 277, supra; Crawford v Nilan, supra, at 450).

This Court’s cases discussing the admissibility of prior consistent statements have been uniformly concerned with the rehabilitation of witnesses through the use of statements that are otherwise clearly hearsay but which do not fall within any other exception. Categorically different from the present case, the typical situation involves a witness’s statements to police after time for reflection or statements to close friends or relatives after the crime (see, People v McDaniel, 81 NY2d 10, 19, supra; People v McClean, 69 NY2d 426, 428; People v Davis, 44 NY2d 269, supra; Crawford v Nilan, 289 NY 444, 449, supra). If such statements are not offered in response to a claim of recent fabrication, they are generally inadmissible. Even this Court’s recent decision in People v Seit (86 NY2d 92), which held that it was error to exclude evidence of a 911 call where the witness’s testimony had been attacked as a recent fabrication, involved a pure hearsay statement falling only into the recent fabrication exception, and no other. If a proffered statement also meets the requirements to be admitted as an excited utterance, for example, its admission would be proper, notwithstanding the characterization as a prior consistent statement (see, People v Alberto, 144 AD2d 368; 2 Jones, Evidence § 10:19 at 299 [6th ed 1972] ["the rule * * * is( ) to exclude statements made by a witness which are consistent with his testimony unless they qualify for admission under some conventional hearsay exception” (emphasis added)]).

Thus, merely because a statement suffers some impediment under one hearsay exception does not preclude the proponent of the evidence from satisfying a court that a different, better-fitting exception fully applies. That is when the trial courts then exercise their evaluation of probativeness versus undue prejudice. Here, the 911 tape plainly did not qualify for admission under the prior consistent statement exception, as there was no charge of recent fabrication made. Indeed, it was not even offered on that basis. Nevertheless, because the evidence fulfilled all the requirements independently for the present sense impression exception, it was admissible (cf., Richardson, op. cit., § 8-615, at 654 [details of a prompt outcry rape complaint admissible if statement satisfies an independent hearsay exception]).

Our reasoning that the tape, admissible under the present sense impression exception, does not constitute improper "bolstering” parallels the logic underlying the availability-unavailability dichotomy. To exclude evidence admissible under a hearsay exception for which availability is immaterial, such as we are holding for the present sense impression type, merely because it might also be a prior consistent statement, would mean that the availability of the declarant does matter, especially if the witness also testifies. Such a contradiction would inherently clash with hearsay jurisprudence, which has recognized the distinctions between different types of hearsay exceptions and allows them to operate side-by-side, not mutually exclusively.

B.

The rule against hearsay developed at common law due to an inherent suspicion of testimony that was not subject to cross-examination (2 McCormick, op. cit., § 245, at 95; Richardson, op. cit., §8-102, at 498). In cases involving statements admitted pursuant to hearsay exceptions where the declarant has also testified in court, this Court has consistently not only permitted the use of the statements, but has also cited the declarant’s presence on the witness stand as additional justification for the allowance because of the opportunity to verify and test the statements’ trustworthiness (see, Matter of Danny R., 50 NY2d 1026, 1028; People v Caviness, 38 NY2d 227, 232, supra; Letendre v Hartford Acc. & Indent. Co., 21 NY2d 518).

An example of the importance the Court attaches to the cross-examination of a hearsay declarant is People v Caviness (supra), in which the declarant herself, while on the witness stand as an eyewitness to a murder, testified that moments after the shooting, she exclaimed that " 'Burnis shot Earl’ ” (38 NY2d 227, 229, supra). The Court upheld this statement as an excited utterance and noted that "although not essential for admissibility, there was an added assurance of reliability since the proof of the declaration was by the [testimony of the] declarant who, in taking the stand, was subject to cross-examination” (id., at 232). The Court did not condemn the "availability” feature as bolstering or otherwise block its admissibility as unnecessary. Rather, we countenanced its use and upheld the admission of the evidence (see also, Meiselman v Crown Hgts. Hosp., 285 NY 389, 396-397, supra; Klein v Benrubi, 60 AD2d 548).

Significantly also, in Matter of Danny R. (50 NY2d 1026, 1028, supra), the Court held that a police officer’s testimony that a robbery victim screamed, " 'That’s him’,” when she saw the juvenile in police custody was admissible as an excited utterance notwithstanding the "antibolstering” rule of CPL 60.25 (see, People v Trowbridge, 305 NY 471, supra). In Matter of Danny R., the victim testified and was subject to cross-examination. Though there was no indication that she was unable to identify her attackers in court, the Court still found the excited statement "properly admitted as a spontaneous declaration” (50 NY2d, at 1028, supra, citing People v Caviness, 38 NY2d 227, supra). We specifically held that the rule of CPL 60.25 did not affect "the rule recognizing the admission of such evidence * * * as an exception to the hearsay rule” (Matter of Danny R., supra, at 1028).

In the present case, the witness who communicated the prior statement by the 911 recorded telephone call also testified to the events surrounding the crime. He was vigorously cross-examined, including about his conversation with the 911 operator. Consequently, the admission of the tape is consistent with this Court’s expressed preference for cross-examination, and it does not constitute, under the circumstances presented in this case, an impermissible bolstering that automatically blocks the use and utility of otherwise valid present sense impression evidence.

Our determination in this case is fortified by the powerfully probative nature of this evidence and its inherent individual integrity and reliability. The tape admitted at trial revealed the urgency — and effectiveness, with defendant’s prompt apprehension and arrest — of the owner’s call to 911. It gave the jury a chance to experience the crime as the events unfolded. Only a video recording of the crime in progress would be more reliable and more potent. We know of no evidentiary rule that would — or should — automatically preclude admission of such evidence (see, United States v Inadi, 475 US 387, 395-396; White v Illinois, 502 US 346).

Defendant’s remaining claims have been considered and are likewise without merit.

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

Simons, J.

(concurring). The tape of the victim’s 911 call was inadmissible hearsay and was improperly received to bolster his in-court testimony. Nevertheless, the error was harmless and I therefore vote to affirm.

This appeal stems from an incident which occurred when the defendant broke into the victim’s house in the early morning hours. The homeowner was awakened by the sound of shattering glass and immediately phoned 911 to report the entry. He subsequently left the house and hid behind some bushes while he continued to report his observations to 911 on the portable phone. The burglar eventually emerged from the house carrying a briefcase and the victim followed him, while continuing his conversation with the 911 operator. The conversation, which lasted about four minutes, terminated before the police arrived and apprehended defendant. In a pretrial ruling, County Court held the 911 tape would be admissible at trial. After the victim had testified in full and recounted essentially the same facts recorded on the tape, the prosecution played the tape for the jury. A majority of the Appellate Division and of this Court conclude this was not error. For several reasons, I disagree.

First, the 911 tape is not admissible in this case because it does not meet the standards for admissibility of evidence satisfying the present sense impression exception to the hearsay rule as stated in People v Brown (80 NY2d 729).

In Brown 911 tapes were received to fill an evidentiary gap to explain why police officers were unable to locate suspects while investigating a burglary in progress. The source of the information was an anonymous 911 caller who was observing from his apartment the actions of the police as they searched for the defendant. The witness made two 911 calls, the first to report the crime and the second to tell the stumped police officers that the suspect they could not locate was hiding on the roof of the burglarized building.

In adopting the present sense impression exception, we held that spontaneous descriptions of events made substantially contemporaneously with the observations are admissible if independently corroborated. While the issue of corroboration was not raised during the pretrial hearing in this case, that circumstance does not justify a categorical rule for admissibility of 911 tapes. Such evidence is admissible only if the proponent demonstrates the evidence is reliable, i.e., the observations are "corroborated by other evidence” in the record (People v Brown, 80 NY2d, at 734, supra [emphasis added]). Here, the People did not make such a showing when arguing the admissibility of the 911 tape.

Moreover, while we have not held that the declarant must be unavailable before the present sense impression applies, there must be a need for the hearsay evidence. The tape was admitted as substantive evidence of material facts in Brown because those facts could not be proven by any other evidence. We implicitly recognized that necessity was the predicate for the admissibility of the evidence when we stated "[i]f [the] eyewitness is available to testify to the events, there is certainly no pressing need for the hearsay testimony” (People v Brown, 80 NY2d, at 736, supra; see also, id., at 732, n 1). That statement was consistent with the view that, at bottom, necessity is the reason for most hearsay exceptions (see, e.g., People v Liccione, 63 AD2d 305, 316, affd 50 NY2d 850; People v Persico, 157 AD2d 339, 345; United States v Inadi, 457 US 387; see also, People v Jiminez, 102 AD2d 439, 442 [Alexander, J.]; Proposed NY Code of Evidence § 806 [iii]; Richardson, Evidence § 206 [Prince 10th ed]).

The basis for the rule of necessity was discussed by the United States Supreme Court in United States v Inadi (475 US 387, 394, supra): "former testimony is only a weaker substitute for live testimony. It seldom has any independent evidentiary significance of its own, but is intended to replace live testimony. If the declarant is available and the same information can be presented to the trier of fact in the form of live testimony * * * there is little justification for relying on the weaker version”. Notwithstanding this statement of the general rule, the Supreme Court allowed the hearsay of a coconspirator in Inadi> finding that it was necessary to establish a conspiracy in progress, and because of the practical difficulties in securing forthcoming testimony from all the coconspirators. In the case before us, there was no similar need for the evidence in the 911 tape because the declarant testified and the four-minute conversation he had with the 911 operator did no more than duplicate his in-court testimony of the events before the police arrived (cf., People v Huertas, 75 NY2d 487). Thus, although I agree that a 911 tape might be admissible as a present sense exception to the hearsay rule if the proponent establishes that the evidence is adequately corroborated and that there is some necessity for it, I cannot agree the 911 tape met those requirements on the record before us.

Moreover, because declarant testified in this case the evidence constituted improper bolstering.

Generally, all relevant, i.e., probative, evidence is admissible unless there is some legal reason to exclude it (see, People v Lewis, 69 NY2d 321; Ando v Woodberry, 8 NY2d 165). Even when hearsay evidence is found reliable, and therefore admissible under some exception to the general rule barring hearsay, it remains subject to the general rules of relevance. The evidence must not only have probative value but its probative value must outweigh the potential prejudice to the defendant resulting from its reception, and its admission must not violate some established policy against admissibility (see generally, Fisch, NY Evidence § 3, at 3-4 [2d ed]). Familiar illustrations are evidence of prior criminal acts, which although probative of material issues before the court, may be precluded because of the prejudice arising from it (see, People v Alvino, 71 NY2d 233, 242; People v Lewis, supra, at 325; see also, People v Ventimiglia, 52 NY2d 350, 360).

The 911 tape had the potential to prejudice defendant in this case because it improperly bolstered the victim’s testimony; it violated the rule which provides that if a witness has testified in person his or her testimony may not be supported by similar out-of-court statements (see, People v McDaniel, 81 NY2d 10, 16; People v McClean, 69 NY2d 426, 428). Bolstering testimony is, by definition, relevant and probative, but it is customarily prohibited as a matter of policy because of its potential for prejudice, i.e., its tendency to support the testimony of the declarant and improperly enhance his or her credibility. It adds nothing to the proof but merely permits a witness to confirm, by unsworn statements, testimony given under oath.

The People’s contention that the evidence should be admitted because it is reliable and persuasive is beside the point. Evidence is not admissible simply because it is reliable; it must also be relevant. Moreover, an audio tape is reliable only in the sense that it is a permanent record of what the witness previously said. While the tape of the complainant’s 911 call may indeed be a reliable reproduction of what he saw and testified to in court, it is not necessarily an accurate statement of what happened. It suffers the same infirmities as the declarant’s in-court testimony with respect to the witness’ ability to perceive what happened and accurately restate it. It served only to enhance the victim’s credibility by reenforcing his in-court testimony without adding additional probative evidence.

The Appellate Division majority cited People v Huertas (75 NY2d 487, supra) to support its contention that the use of the 911 tape fell within an exception to the rule against bolstering. The statement in Huertas was not offered for the truth of the matters asserted and therefore was nonhearsay. It was received solely to establish, contrary to defendant Huertas’ claims, that the complainant had a sufficient opportunity to view defendant and that there was some basis for her subsequent corporeal identification.

The People did not offer the 911 tape on Huertas grounds in this case nor, in fact, did they offer any reason other than the fact that the tape qualified as a present sense impression. It was introduced to prove the facts contained in the recording but it did not include any additional description of the suspect not testified to by declarant, nor did it include the identification of the suspect at the time and place of the arrest. It was merely a repetition of the events from the break-in of declarant’s apartment until he lost sight of the fleeing burglar. The declarant had already testified to those facts in full, however, and the tape improperly bolstered his in-court testimony.

The Appellate Division concluded the 911 evidence was even stronger than the typical out-of-court statement because it "vividly” portrayed the events (201 AD2d 156, 160). The majority finds it admissible because it gave the jury a chance to experience the crime "as the events unfolded” and because it was "potent” (majority opn, at 513). The People state that there was an element of "excitement” in the tape created by the victim’s wavering voice and his repeated emotional appeals for the police to get there quickly. But these characteristics, none of which were offered below to support admission, merely confirm that the tape, made under the stress of the crime in progress, would allow jurors to empathize with the victim. That, however, only enhances the improper bolstering effect of this unsworn evidence. By dramatically duplicating the witness’ in-court testimony without any necessity for doing so, the hearsay evidence repeated facts and circumstances which may or may not have been accurately perceived and did so in an emotional context which only echoed and reenforced declarant’s trial testimony. The unsworn statements on the tape, by their emotional impact, made the declarant’s in-court testimony stronger in the eyes of the jury —the essence of impermissible bolstering.

The cases cited by the majority do not support their result. In People v Caviness (38 NY2d 227), the witness was permitted to testify about a statement she had made at the time of the crime as an excited utterance. Inasmuch as her statement qualified under that exception to the hearsay rule, she was allowed to testify to it. The statement was part of her direct testimony, it was not repetitive, bolstering evidence which reiterated her in-court testimony. In Matter of Danny R. (50 NY2d 1026), the issue was whether the identification violated CPL 60.25. The Court decided it did not. There was no evidence in the record to establish whether the victim could or could not identify the juvenile at trial, and the common-law bolstering issue was apparently not presented to the court; at least it was not addressed in our opinion. Letendre v Hartford Acc. & Indemnity Co. (21 NY2d 518) permitted prior sworn statements of a faithless employee to be admitted in the employer’s action to recover on a fidelity bond. The evidence did not constitute bolstering of in-court testimony, indeed it contradicted the employee’s in-court testimony and was made necessary when the employee denied the peculations at trial.

Accordingly, I conclude that the 911 tape was improperly admitted into evidence and played for the jury. It did not qualify as an admissible exception to the hearsay rule under the present sense impression rule because it was not properly corroborated, and because its proponent did not establish the need for it. Moreover, admitting the tape permitted the in-court testimony of the declarant to be improperly bolstered.

Nevertheless, I conclude the error was harmless. The victim followed defendant from his burglarized home to the area of the garage in which he was found hiding shortly after the crime. When arrested, defendant was perspiring and had wet blood on his shirt, a significant fact because human blood was found at the point of the break-in. The victim’s briefcase was found near the place of defendant’s arrest. Defendant fit the description given by the victim and was identified by him at the time of the arrest. Under the circumstances, admission of the 911 tape was harmless (see, People v Crimmins, 36 NY2d 230, 242).

Judges Titone, Smith and Levine concur with Judge Bellacosa; Judge Simons concurs in result in a separate opinion in which Chief Judge Kaye and Judge Ciparick concur.

Order affirmed.

       A common exception arises when an opponent assails a witness’ testimony as a recent fabrication. In such cases the party is entitled to offer evidence of prior consistent statements made before there existed any motive to lie (People v Seit, 86 NY2d 92, 95; People v McDaniel, 81 NY2d 10, supra; People v McClean, 69 NY2d 426, supra).


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    [658 NE2d 202, 634 NYS2d 425]
    Fleet Factors Corp., by Its Ambassador Factors Division, Appellant, v Bandolene Industries Corp. et al., Defendants. Cambria Fuel Oil Co., Inc., Now Known as Radogna Holding Co. Inc., Respondent.
    Argued September 19, 1995;
    decided October 31, 1995

      POINTS OF COUNSEL

      Ruskin, Moscou, Evans & Faltischek, R C., Mineola (Douglas J. Good of counsel), for appellant.
    I. Where seller of a business knew that purchaser intended to change its name to seller’s promptly after closing and learned that purchaser did so, seller was required to file or refile financing statements that will be indexed against purchaser’s "new” name in order to perfect a security interest. (In re Kalamazoo Steel Process, 503 F2d 1218.) II. Even if respondent’s security interest was valid, it was not "perfected” because respondent failed to file a financing statement in Nassau County. (In re Knapp, 575 F2d 341; In re Mimshell Fabrics, 491 F2d 21; Package Mach. Co. v Cosden Oil & Chem. Co., 51 AD2d 771; In re P.S. Prods. Corp. v Equilease Corp., 435 F2d 781; Uniroyal, Inc. v Universal Tire & Auto Supply Co., 557 F2d 22; Matter of Enark Indus. [Bush —Long Is. Trust Co.J 86 Misc 2d 985.) III. Trial Term erred, on the law, in ruling that Old Cambria’s agreement to subordinate its security interest was conditioned upon its receipt of notice of new financing and the release of escrowed UCC-3’s and new UCC-1’s. (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Buffardi v Parillo, 168 AD2d 812; Londner v Pearlman, 129 App Div 93, 198 NY 629; Comptroller of State of N. Y. v Gards Realty Corp., 68 AD2d 186; First Natl. Bank v American Foam Rubber Corp., 530 F2d 450, cert

      denied sub nom. Buchman v American Foam Rubber Corp., 429 US 858; Cherno v Dutch Am. Mercantile Corp., 353 F2d 147; Bank of Okla. v Fidelity State Bank & Trust Co., 623 F Supp 479; In re Credit Indus. Corp., 366 F2d 402; In re Kors, Inc., 819 F2d 19; Statland Holliday v Stendig Dev. Corp., 46 AD2d 135.)

      Robinson Brog Leinwand Reich Genovese & Gluck, P. C., New York City (Harvey Reich, Jeffrey W. Herrmann and John D. D’Ercole of counsel), for respondent.
    I. 306 Fuel Oil’s change of name to New Cambria does not result in the forfeiture of Old Cambria’s prior, perfected security interest in preexisting collateral of the debtor. (Matter of Pasco Sales Co., 77 Misc 2d 724; In re Hammons, 438 F Supp 1143, 614 F2d 399; Chemical Bank v Haskell, 51 NY2d 85.) II. The trial court’s factual finding that 306 Fuel Oil had places of business in two counties when Old Cambria filed its financing statement with the Secretary of State is not subject to review by this Court because it is amply supported by the evidence in the record. (Alpert v 28 Williams St. Corp., 63 NY2d 557; Stiles v Batavia Atomic Horseshoes, 81 NY2d 950; In re Mimshell Fabrics, 491 F2d 21; Chandler v Flynn, 111 AD2d 300.) III. 306 Fuel Oil’s failures to provide Old Cambria with notice of Ambassador’s financing and deliver to it a new, subordinate UCC-1 were failures of conditions precedent to the subordination of Old Cambria’s security interest. (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Printers II v Professionals Publ., 784 F2d 141; Jafari v Findlay Galleries, 741 F Supp 64; Lanvin Inc. v Colonia, Inc., 739 F Supp 182; Grace v Nappa, 46 NY2d 560.)
   OPINION OF THE COURT

Bellacosa, J.

Neither Uniform Commercial Code § 9-402 (7) nor Uniform Commercial Code § 1-203, under the circumstances of this case, requires a secured party to refile a properly and accurately filed financing statement, upon the subsequent event of a name change by the debtor. Nor does either section require a special notation of an impending name change by the debtor on the initially filed financing statement, even if known by the filing creditor.

Cambria Fuel Oil Co. (Old Cambria), on November 1, 1988, sold its business to 306 Fuel Oil Corp., retaining a security interest in the transferred assets. Old Cambria filed its only UCC-1 financing statement on November 18, 1988, and 306 Fuel changed its name on December 29, 1988 to Cambria Petroleum Corp., referred to here as "New” Cambria.

The contract of sale identified the buyer as "306 Fuel Oil Corp.” Old Cambria gave 306 Fuel the right to use the name "Cambria Fuel Oil Co., Inc.” and "Cambria” as trade names, while agreeing not to use either of the names in the future. The same day they entered into the contract of sale, 306 Fuel and Old Cambria also entered into an escrow agreement, which included a security interest subordination clause. Pursuant to that clause, Old Cambria agreed to subordinate its security interest to the new lender should 306 Fuel acquire additional financing from another lender. The clause, paragraph 5 of the escrow agreement, also provided that if 306 Fuel obtained new financing, it would have to deliver a statement on its letterhead informing Old Cambria of the arrangement, together with a new, subordinate UCC-1 financing statement. At that point, 306 Fuel could file a simultaneously executed UCC-3 termination statement relating to Old Cambria. This UCC-3 was to be held in escrow by 306 Fuel’s attorneys.

On November 18, 1988, before 306 Fuel changed its name, Old Cambria filed its UCC-1 financing statement with the Secretary of State, listing the debtor as "306 Fuel Co.”

After the sale in November but before 306 Fuel’s name change in December, Fleet Factors Corp., represented in the transaction at issue by its Ambassador Factors Division, extended credit to New Cambria. This financing was purportedly secured by the same assets in which Old Cambria still held a filed security interest for the payment of promissory notes.

Ambassador, a commercial lender, now seeks to foreclose its subsequently perfected security interest in certain liquidated assets of New Cambria and the defendant Bandolene companies. Intervenor-claimant Old Cambria, a former fuel oil company, acquired its security interest in New Cambria’s assets when it sold its business to the company now known as New Cambria. The buyer, New Cambria’s predecessor in name 306 Fuel, gave Old Cambria as seller $700,000 in promissory notes.

Ambassador and 306 Fuel made their financing arrangement on December 16, 1988. Secured seller Old Cambria was never notified of this new loan transaction, was never provided with a subordinate UCC-1, nor was the escrowed UCC-3 ever released. Nearly two weeks later, on December 29, 1988, 306 Fuel changed its name to "Cambria Petroleum Corp.”

On January 5 and 6, 1989, Ambassador filed its own UCC-1 financing statement after making its loan to New Cambria. Ambassador thus perfected its security interest in the Old Cambria assets and identified New Cambria as the debtor. The Ambassador loan to New Cambria/306 Fuel was for approximately $633,000. New Cambria subsequently defaulted.

Ambassador started this lawsuit targeting especially the doubly secured Old Cambria collateral. Supreme Court appointed a temporary receiver, who sold New Cambria’s assets for $686,000. Old Cambria claims $697,189 and Ambassador $543,858 out of the liquidated assets. The principal issue is whether Old Cambria’s prior perfected security interest prevails.

Supreme Court held a hearing to determine the competing claims of priority. It awarded the entire net proceeds to Old Cambria, with interest, concluding that Old Cambria had priority over Ambassador by virtue of its valid, senior perfected security interest, and had no duty to file a new financing statement upon the debtor’s name change. The court noted that Old Cambria’s filing with the Secretary of State fully complied with Uniform Commercial Code requirements because, at the time of the sale between Old Cambria and 306 Fuel, the latter was doing business under that name in Nassau and Kings Counties. Finally, the court held that the subordination agreement did not become operative because 306 Fuel/New Cambria had breached the agreement by failing to give notice to Old Cambria and to file the escrowed UCC-3 termination statement.

The Appellate Division affirmed for the reasons stated in the lower court’s detailed opinion, containing findings of fact and conclusions of law (207 AD2d 523). We granted leave to appeal and now affirm the order of the Appellate Division.

Initially, we note that no one disputes that Old Cambria filed the earlier security interest. The secured party who first files a financing statement is deemed to have the senior security interest (UCC 9-312 [5] [a]; see, e.g., Matter of Chase Manhattan Bank v State of New York, 40 NY2d 590, 594).

Ambassador argues, however, that Old Cambria knew of 306 Fuel’s intended name change at the time of its initial filing. That, it claims, triggers an affirmative duty to file an amended financing statement, or at the very least to have noted the potential change of name on the initial filing. Ambassador argues that because Old Cambria took neither of those additional steps, Old Cambria’s security interest was not valid or was nullified.

Old Cambria first counters that there was no finding of fact that Old Cambria knew of the intended name change. In any event, says Old Cambria, Ambassador itself had a duty to ascertain the true name of the party to whom it was making its loan and the status and lineage of the proffered collateral.

Until 1978, the Uniform Commercial Code was silent as to the effect of a name change by a debtor on a secured party’s filing obligations (see, Matter of Pasco Sales Co., 77 Misc 2d 724, 726 [1974]). In 1978, UCC 9-402 (7), as part of the 1972 revision of the Uniform Commercial Code, went into effect (L 1977, ch 866, § 26 [eff July 2, 1978]; 9 Hawkland, Uniform Commercial Code Series § 9-402:07, at 534). That section provides that a secured party must refile a financing statement upon the debtor’s name change only when the name change is seriously misleading and the collateral at issue was obtained more than four months after the name change:

"Where the debtor so changes * * * its name, identity or corporate structure that a filed financing statement becomes seriously misleading, the filing is not effective to perfect a security interest in collateral acquired by the debtor more than four months after the change, unless a new appropriate financing statement is filed before the expiration of that time” (UCC 9-402 [7]).

The section by its terms applies only to collateral obtained by the debtor after the expiration of the four month period. That is not the situation here and, thus, the statute imposes no refiling requirement.

The Official Comment to section 9-402 (7) declares that a "seriously misleading” name change does not alone trigger a secured party’s duty to refile (Official Comment, reprinted in McKinney’s Cons Laws of NY, Book 62½, UCC 9-402 [7], at 503). Also significantly, "[t]he old financing statement, if legally still valid under the circumstances, would continue to protect collateral acquired before the change” (Official Comment, reprinted in McKinney’s Cons Laws of NY, Book 62½, UCC 9-402 [7], at 503; see, Woods u Bath Indus. Sales, 549 A2d 1129 [Me]; In re Falk Interiors, 61 Bankr 720, 722 [Bankr WD Wis]; 9 Hawkland, Uniform Commercial Code Series § 9-402:07, at 535).

Here, 306 Fuel changed its name to Cambria Petroleum Corp. (New Cambria) about a month and a half after acquiring the Old Cambria assets. Because the only collateral at issue in this litigation, however, is that acquired prior to the name change, Old Cambria incurred no obligation to refile anything under section 9-402 (7) to continue to protect its security interest (Woods v Bath Indus. Sales, 549 A2d 1129, 1132, supra; In re Falk Interiors, 61 Bankr 720, 722 [Bankr WD Wis], supra). Here, we need not reach the issue of whether the name change was "seriously misleading” because that clause applies only to collateral acquired after the four-month period following the name change, a circumstance and event not present in this case (UCC 9-402 [7]; see, In re Rentclub, 149 Bankr 699, dismissed by stipulation 163 Bankr 604 [Bankr MD Fla]).

Moreover, section 9-402 (7) does not require an amended filing dependent on the secured party’s awareness of a name change (McLaughlin, "Seek But You May Not Find": Non-UCC Recorded, Unrecorded and Hidden Security Interests Under Article 9 of the Uniform Commercial Code, 53 Fordham L Rev 953, 973 ["regardless of (the secured party’s) knowledge of the name change, (its) security interest in the specified equipment takes priority over (a new creditor’s) subsequent security interest”]). On the contrary, rather than obligate the secured party to refile, the drafters of the Uniform Commercial Code provided instead "to place the burden on the party searching the files to know the true name of the entity that possesses the property” (In re Falk Interiors, supra, at 722).

The Uniform Commercial Code balances the duty on a prospective secured creditor in the few cases where the situation would arise against the less desirable result of requiring "anything of secured parties that might increase the cost of secured credit” (Knippenberg, Debtor Name Changes and Collateral Transfers Under 9-402 (7): Drafting From the Outside-In, 52 Mo L Rev 57, 92). The end result of that balancing is to require refiling only as to after-acquired collateral, regardless of a previously secured party’s knowledge (compare, Beneficial Fin. Co. v Kurland Cadillac-Oldsmobile, 32 AD2d 643, 645; In re Sparmal Enters., 68 Bankr 901, 903 [Bankr SD Ind]).

Appellant Ambassador further proposes to permeate or overlay the duty of good faith in UCC 1-203 into an article 9 particularized duty to refile in the circumstances of this case. Its fallback claim is that good faith triggers a duty at least to note an impending name change on the initial financing statement in a way that would make subsequent prospective creditors likely to find it.

Section 1-203 provides that "Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement” (UCC 1-203). Ambassador relies heavily on In re Kalamazoo Steel Process (503 F2d 1218 [6th Cir 1974]), which elevated good faith to transcendent importance by holding that a secured party with knowledge of an impending name change must either refile or note the impending change on its initial filing (id., at 1222; see also, Wollenberg v Phoenix Leasing, 182 Ariz 4, 893 P2d 4, 10 [Ct of App]; Woods v Bath Indus. Sales, 549 A2d 1129, supra; In re Darling Lbr., 56 Bankr 669 [Bankr ED Mich]).

Kalamazoo Steel, first of all, predated the enactment of section 9-402 (7) (see, Mich Stat Annot § 19.9402 [7]). After the Sixth Circuit decided Kalamazoo Steel and before the enactment of the new subsection, the Michigan Supreme Court, however, considered the secured party’s duties upon the debt- or’s subsequent change of name in Continental Oil Co. v Citizens Trust & Sav. Bank (397 Mich 203, 244 NW2d 243 [1976]). It substantially disavowed Kalamazoo Steel’s reasoning, holding that where a name change occurs after the initial filing of a financing statement, the law imposes no duty to refile. Significantly, the court in Continental noted that section 9-402 (7) had at that time been proposed but not enacted. The proposed change was cited as authority, nevertheless, that then-existing commercial practice was not to require refiling or amendment or anticipatory notation. In light of the Uniform Commercial Code’s preference for retaining commercial custom (see, UCC 1-102 [2] [b]), the court refused to impose a requirement not found in law (Continental Oil Co. v Citizens Trust & Sav. Bank, 397 Mich 203, 244 NW2d 243, 245, supra).

On another tack, Ambassador argues that Kalamazoo Steel also held that the filing there at issue was misleading ab initia, in that the secured party knew that a name change was imminent. Following this view, the Supreme Judicial Court of Maine in Woods v Bath Indus. Sales (549 A2d 1129, 1132, supra), while recognizing that amended filing was not required under section 9-402 (7), nevertheless held that "the statute does not negate the requirement of good faith with regard to the initial filing” (emphasis added) (compare, UCC 9-402 [8]; First Manufactured Hous. Credit Corp. v Clarkson Mobile Home Park, 148 AD2d 901, 902, Iv denied 74 NY2d 611; TMMB Funding Corp. v Associated Food Stores, 136 AD2d 540, 542; see generally, Note, The Effect of Errors and Changes in the Debtor’s Name on Article Nine Security Interests, 1975 Duke LJ 148).

We reject the general approach of Kalamazoo Steel, the tilt of those authorities that have followed its cue, and note further that there is no finding of knowledge on Old Cambria’s part in this case. To impose a generalized duty, not fairly precisely fixed in a particular section of the Uniform Commercial Code, would upset the preference for definiteness, regularity and predictability in commercial dealings underlying the Uniform Commercial Code and our precedents (see, UCC 1-102 [2] [a]; SOS Oil Corp. v Norstar Bank, 76 NY2d 561, 571; Putnam Rolling Ladder Co. v Manufacturers Hanover Trust Co., 74 NY2d 340, 349; Note, Hotu Appellate Opinions Should Justify Decisions Made Under the U.C.C., 29 Stan L Rev 1245, 1247).

Under Uniform Commercial Code § 9-402 (1):

"A financing statement is sufficient if it gives the names of the debtor and the secured party * * * from which information concerning the security interest may be obtained, gives a mailing address of the debtor and contains a statement indicating the types, or describing the items, of collateral.”

The first part of section 9-402 (7) cogently states that "[a] financing statement sufficiently shows the name of the debtor if it gives the individual, partnership or corporate name of the debtor.” Plainly, therefore, no requirement exists in article 9 or by incorporation of some general good-faith component that the debtor name recorded on an otherwise complete and properly filed financing statement be anything other than the debtor’s then-operative name (see, In re Falk Interiors, 61 Bankr 720, 722, supra). It would be irregular and unauthorized to conclude that a party who complied with sections 9-402 (1) and 9-402 (7) is otherwise ousted and deprived of its senior secured position with respect to the collateral at issue under circumstances as developed in this case.

We need not reach the issue of whether a secured party who files a financing statement with knowledge of a definite impending name change and an intent to deceive or defraud may ever be deemed to be acting in bad faith sufficient to interpose UCC 1-203 and other remedial theories. Rather, it is sufficient to note that in this case, there was no finding of knowledge, bad faith or wrongful intent attributable to Old Cambria. Indeed, the mere possibility of and contractual authorization for a name change are all that exist in this case as fact findings. That the change did come about, six weeks later and with other key intervening developments and transactions, does not vitiate the valid senior filing by Old Cambria.

Ambassador’s charges of bad faith against Old Cambria also ring hollow in light of the trial court finding inherently incredible Ambassador’s claim of its own ignorance about the impending name change by a party with whom it was negotiating. The Uniform Commercial Code imposes a heavy duty on prospective secured creditors to know the then-pertinent, proper corporate name of its prospective debtor. At the time that Ambassador negotiated its financing agreement, it did so with 306 Fuel, not New Cambria. In light of Ambassador’s own duty of good faith under section 1-203, it cannot be heard now to complain that someone else should have told it the true and then-present legal name of the party to whom it was extending credit.

We have considered all arguments, including that relating to the subordination agreement, and conclude that they are without merit.

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

Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Ciparick concur.

Order affirmed, with costs.


author: Simons, J.

text:
    [658 NE2d 706, 634 NYS2d 660]
    The People of the State of New York, Respondent, v Julian Shack, Appellant.
    Argued September 20, 1995;
    decided November 2, 1995

      POINTS OF COUNSEL

      Kevin Costello, Flushing, for appellant.
    I. The charging instrument was defective because it lacked specificity. (People v Keindl, 68 NY2d 410; People v Brannon, 58 AD2d 34; People v Sanchez, 84 NY2d 440; People v Moriss, 61 NY2d 290; People v Beauchamp, 74 NY2d 639; People v Watt, 192 AD2d 65; People v Davila, 198 AD2d 371; People v Romero, 147 AD2d 358; People v Okafore, 72 NY2d 81.) II. The trial court improperly permitted Ms. Buffalin to testify as to confidential communications. (People v Edney, 39 NY2d 620; Perry v Fiumano,
      61 AD2d 512.) III. Penal Law § 240.30 (2) is unconstitutional on its face and as applied to appellant. (People v Dupont, 107 AD2d 247; People v Dietze, 75 NY2d 47; Rowan v Post Off. Dept., 397 US 728; Cohen v California, 403 US 15; People v Nelson, 69 NY2d 302; People v Bright, 71 NY2d 376; United States v Harriss, 347 US 612; Colten v Kentucky, 407 US 104; Jordan v De George, 341 US 223; People v Berck, 32 NY2d 567.)

      Richard A. Brown, District Attorney, of Queens County, Kew Gardens (Alexander H. Gardner and Steven J. Chananie of counsel), for respondent.
    I. Aggravated harassment is a continuing crime and the prosecutor’s information was thus not duplicitous in charging defendant in a single count with making repeated harassing telephone calls. Moreover, defendant received adequate notice of the charged crime. (People v Patterson, 39 NY2d 288, 432 US 197; People v Branch, 73 AD2d 230; People v Iannone, 45 NY2d 589; People v Nicholson, 98 AD2d 876; People v Flores, 84 NY2d 957; People v Weston, 56 NY2d 844; People v Fremd, 41 NY2d 372; People v Davis, 72 NY2d 32; People v Keindl, 68 NY2d 410; People v Okafore, 72 NY2d 81.) II. Defendant’s strategic decision at trial to rely upon and elicit Buffalin’s testimony about his mental illness waived his claim that the testimony violated the psychologist-patient privilege. In any event, no psychologist-patient relationship existed between Buffalin and defendant. (Johnson v Zerbst, 304 US 458; People v Ahmed, 66 NY2d 307; Orco Bank v Proteinas Del Pacifico, 179 AD2d 390; People v Edney, 39 NY2d 620; People v Patrick, 182 NY 131; Poppe v Poppe, 3 NY2d 312; Henry v Lewis, 102 AD2d 430; People v Biondo, 41 NY2d 483, 434 US 928; People v Mann, 31 NY2d 253; People v Yakoumakis, 156 AD2d 499.) III. Section 240.30 (2) of the Penal Law is constitutional on its face and as it was applied to defendant. In any event, defendant’s conduct was not constitutionally protected. (People v Smith, 89 Misc 2d 789; Rowan v Post Off. Dept., 397 US 728; Cohen v California, 403 US 15; Carey v Brown, 447 US 455; Gregory v Chicago, 394 US 111; Kovacs v Cooper, 336 US 77; People v Hollman, 68 NY2d 202; Board of Educ. v Barnette, 319 US 624; Tinker v Des Moines School Disk, 393 US 503; Chaplinsky v New Hampshire, 315 US 568.)
   OPINION OF THE COURT

Simons, J.

Defendant appeals from an order of the Appellate Term affirming his conviction, upon a jury verdict, of violating Penal Law § 240.30 (2), aggravated harassment in the second degree. The statute provides: "A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he * * * [m]akes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication.”

Defendant contends that the statute violates the United States and New York State Constitutions because it prohibits constitutionally protected speech, and because it violates his constitutional right to due process. Defendant also maintains that the information charging him with commission of the crime lacked sufficient specificity because it failed to set forth the dates and times of his alleged criminal conduct. Finally, defendant complains that he was deprived of a fair trial because the complaining witness was permitted to testify in violation of the psychologist/patient privilege set forth in CPLR 4507. We hold that the statute is not unconstitutional and find no merit in defendant’s remaining contentions. Accordingly, the order of the Appellate Term should be affirmed.

I

Defendant Julian Shack suffers from mental illness, a fact which he concedes and which was the centerpiece of his defense at his trial. Complainant Diane Buffalin, defendant’s first cousin, is a psychologist who lives and practices in Michigan. In June of 1990, defendant placed a telephone call to Buffalin at her home seeking information regarding his illness and medications and posing questions that arose from his treatment with a psychiatrist in New York. Buffalin, who had had no contact with defendant during the 12 years preceding this phone call, tried to answer his questions. Defendant apparently obtained some benefit from speaking with her, and upon his request she agreed to a continued telephone relationship with him, so long as he remained in treatment with his psychiatrist and continued taking his medication. From June through October, they spoke on the telephone approximately twice each week, and, during a visit to New York that summer, Buffalin "connected” defendant with an anxiety clinic at a New York City hospital.

Toward the end of October of 1990, defendant informed Buffalin that he was "doing better” and that he had stopped taking medication. She told him that because he was not taking his medication, she no longer welcomed his calls. In response, defendant advised Buffalin that if he ever got angry with her, he could burn down the house of her elderly father (his uncle), who lived in New York City. Through November and into December, defendant continued to call Buffalin. She repeatedly advised him that she did not want to speak with him if he was not taking his medication.

At the end of November, Buffalin informed defendant that she would be undergoing major surgery and told him not to call her during her two-week period of recuperation. On the day of her surgery, defendant called Buffalin three times, and he continued to place calls to her home repeatedly and regularly thereafter. From December 12 through the end of that month, he placed 88 phone calls to her home, sometimes calling as many as seven times a day. Defendant left messages on Buffalin’s answering machine, asserting that if she refused to take his calls, he would begin to place repeated calls to her adult daughter, her mother-in-law and her father. In December, Buffalin wrote defendant a letter in which she tried to make it clear to him that his calls were unwanted, and she advised defendant that she would file a criminal complaint against him if he did not stop calling her.

Defendant continued to telephone Buffalin and records for his residence in Queens County indicate 185 calls to her residence between December 12, 1990 and May 20, 1991. Defendant left messages in which he stated that if she refused to speak with him, he would sell her telephone number to a "pervert” who would delight in calling and upsetting her, that he would place dozens of phone calls to other family members and that he would call the Michigan licensing board to have her psychologist’s license revoked. Buffalin telephoned defendant once in January to implore him to stop calling, and on several occasions she called him and replayed the taped messages of his calls so that he would know that evidence against him was being gathered. Nevertheless, defendant continued to place calls to Buffalin’s home until May of 1991, when Buffalin came to New York and filed a criminal complaint against him. Defendant was arrested, prosecuted and convicted on one count of aggravated harassment in the second degree and sentenced to three years of probation.

II

Defendant challenges the constitutionality of the statute on several grounds.

A

Defendant’s first claim is that the statute is facially unconstitutional because it impermissibly infringes the freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution and article I, § 8 of the New York Constitution. Even if not facially unconstitutional, defendant maintains that it is unconstitutional as applied to him.

Penal Law § 240.30 (2) does not prohibit speech or expression — on its face, its proscription is limited to conduct (making a telephone call without any legitimate purpose of communication). The limiting clause which expressly excludes constitutionally protected speech from its reach plainly distinguishes this statute from those which impose criminal liability for "pure speech” (see, e.g., People v Dietze, 75 NY2d 47 [use of "abusive language”]; Cohen v California, 403 US 15, 18 [an epithetic phrase worn on a jacket was not "offensive conduct”]; see also, Walker v Dillard, 523 F2d 3, cert denied 423 US 906), or "expressive conduct” (see, e.g., Spence v Washington, 418 US 405 [displaying a peace symbol on an American flag]; cf., People v Hollman, 68 NY2d 202 [nude sunbathing is not expressive conduct]). Accordingly, because Penal Law § 240.30 (2) proscribes only conduct and expressly removes from its application "legitimate communication,” defendant may not invoke the First Amendment or article I, § 8 of the State Constitution to support a challenge to the facial validity of the statute.

Moreover, even if Penal Law § 240.30 (2) is construed to proscribe speech, a declaration of facial overbreadth does not automatically follow. Constitutional free speech protections "have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses”; a person’s right to free expression may be curtailed "upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner” (Cohen v California, 403 US, at 19, 21, supra). An individual’s right to communicate must be balanced against the recipient’s right "to be let alone” in places in which the latter possesses a right of privacy (Rowan v Post Off. Dept., 397 US 728, 736), or places where it is impractical for an unwilling listener to avoid exposure to the objectionable communication (see, Lehman v City of Shaker Hgts., 418 US 298, 302-303). Under some circumstances, the privacy right may "plainly outweigh” the free speech rights of an intruder (see, Federal Communications Commn. v Pacifica Found., 438 US 726, 748). As the Rowan Court noted in regulating unwanted mail, permitting communications to be foisted upon an unwilling recipient in a private place would be tantamount to licensing a form of trespass, and thus "a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee” (Rowan v Post Off. Dept., 397 US, at 736-737, supra).

The Rowan analysis may be extended to Penal Law § 240.30 (2). Manifestly, an individual has a substantial privacy interest in his or her telephone; in the context of a telephone harassment statute, the device is easily conceptualized as the functional equivalent of the mailbox. Thus, to the extent Penal Law § 240.30 (2) limits a caller’s right to free speech, it permissibly subordinates that right to the recipient’s right to be free of unwanted telephone calls. The statute is narrowly drafted and furthers the State’s compelling interest in protecting its citizens from "persons who employ the telephone, not to communicate, but for other unjustifiable motives” (United States v Lampley, 573 F2d 783, 787; see also, Gormley v Director, Conn. State Dept. of Probation, 632 F2d 938, 941, cert denied 449 US 1023).

Nor is the statute unconstitutional as applied to defendant, because it did not subject him to criminal liability for engaging in protected speech; his liability arose from his harassing conduct, not from any expression entitled to constitutional protection. Although defendant claims that he had a legitimate purpose because he placed his calls seeking help for his illness, that argument addresses only those telephone calls placed before Buffalin told him to stop calling her. The manner and substance of defendant’s calls changed dramatically in December, and the information charged him with criminal conduct only after that time. Indeed, defendant does not now deny that the evidence at trial was sufficient to support the jury’s determination that after December 12, 1990, he called Buffalin with the intent to harass, annoy, threaten or alarm her and that his calls were made with no legitimate communicative purpose (see, People v Smith, 89 Misc 2d 789, 790, cert denied 434 US 920). Accordingly, Penal Law § 240.30 (2) is not unconstitutional as applied to defendant.

Defendant further asserts that Penal Law § 240.30 (2) is overbroad because it may impair or chill others’ lawful exercise of free speech rights; it may reasonably be interpreted to prohibit expression which is constitutionally protected (Grayned v City of Rockford, 408 US 104, 114-115). However, because defendant did not suffer a violation of his right to free speech, he may challenge the constitutionality of the statute on the grounds that it impairs the rights of others only if it is "substantially overbroad,” that is, if the statute is so broadly worded that it may reach a substantial amount of constitutionally protected expression (Houston v Hill, 482 US 451, 458-459; Broadrick v Oklahoma, 413 US 601, 615; People v Hollman, 68 NY2d 202, 208-209, supra).

Defendant does not assert any circumstances in which the language of Penal Law § 240.30 (2) would impermissibly restrain protected speech, only suggesting generally that it would permit criminal prosecution of "any patient who has an argument over the phone with a psychologist, or a provider of any good or service” (compare, People v Hollman, supra). His argument overlooks the statutory requirement that the telephone call be made "with no purpose of legitimate communication,” a provision which plainly excludes the vast majority of such calls. It is this limitation which distinguishes Penal Law § 240.30 (2) from other telephone harassment statutes that have been declared constitutionally overbroad (see, People v Klick, 66 111 2d 269, 362 NE2d 329; see also, State v Dronso, 90 Wis 2d 110, 279 NW2d 710; Walker v Dillard, 523 F2d 3, cert denied 423 US 906, supra; Radford v Webb, 446 F Supp 608, affd 596 F2d 1205). Even if the statute may, on rare occasion, reach constitutionally protected expression, we are unable to conclude that the statute’s overbreadth, if any, is substantial and thus defendant may not rely on the theoretical overbreadth of Penal Law § 240.30 (2) to challenge his conviction under the statute (see, People v Hollman, 68 NY2d, at 209, supra). In sum, Penal Law § 240.30 (2) is not overbroad because it does not infringe protected rights of defendant nor chill the exercise of free speech rights by others.

B

Defendant further claims the statute is unconstitutionally vague, i.e., that it violates the constitutional right to due process because it fails to give a citizen adequate notice of the nature of proscribed conduct, and permits arbitrary and discriminatory enforcement (see, People v Bright, 71 NY2d 376, 382; People v Nelson, 69 NY2d 302, 307; People v Illardo, 48 NY2d 408, 413-414; Grayned v City of Rockford, 408 US 104, 108-109, supra; United States v Harriss, 347 US 612, 617). The essence of defendant’s argument is that the subjective term "legitimate” contained in the statutory clause "no purpose of legitimate communication” is incapable of precise definition.

Defendant claims that the statute does not adequately apprise ordinary citizens that phone calls made to "vent anger” or to "inform someone that an attempt would be made to revoke a professional license” would fall within its proscription. As one whose conduct clearly fell within the ambit of the statute, defendant may not assert a due process challenge on the grounds that the statute may be vague when applied to the potential conduct of others (see, Broadrick v Oklahoma, 413 US, at 608, supra; People v Nelson, 69 NY2d, at 308, supra). Accordingly, we now address only his contention that the statute was vague with respect to his conduct.

Whether a statute is unconstitutionally vague is measured by whether it provides notice to "a person of ordinary intelligence * * * that his contemplated conduct is forbidden by the statute” (United States v Harriss, 347 US, at 617, supra; People v Cruz, 48 NY2d 419, 423-424). The legislative use of inherently imprecise language, however, does not render a statute fatally vague if that language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices” (United States v Petrillo, 332 US 1, 8; see also, Miller v California, 413 US 15, 27-28, n 10, quoting Roth v United States, 354 US 476, 491-492; People v Illardo, 48 NY2d, at 414, supra; City of Albany v Lee, 53 NY2d 633). Measuring the phrase "no purpose of legitimate communication” by these standards, we are satisfied that the phrase, notwithstanding its subjective quality, would be understood to mean the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances.

Moreover, insofar as defendant contends that Penal Law § 240.30 (2) fails to put citizens on notice of what they may not do, the challenged clause cannot be viewed in isolation, for it is but one element of a statute that gives greater definition to the proscribed conduct. Specifically, the statute prohibits one from making such telephone calls "with intent to harass, annoy, threaten or alarm another person” (Penal Law § 240.30). By including a specific intent element in the statute, the Legislature has removed the possibility that a defendant could be unaware of his criminal conduct (see, Screws v United States, 325 US 91, 101-102; United States v Lampley, 573 F2d 783, 787, supra; cf., People v Bright, 71 NY2d, at 383-384, supra). This specific intent element also removes the possibility that criminal liability would be imposed based on the unascertainable sensitivities of the victim (compare, Coates v City of Cincinnati, 402 US 611, 613-614; see, e.g., Constantino v State, 243 Ga 595, 598, 255 SE2d 710, 713).

Further, we find no possibility of arbitrary enforcement. The combination of the described standards and the clear and understandable elements of the criminal conduct adequately defines the criminal conduct for the police officers, Judges and juries who will enforce the statute. Notably, because of the very nature of the conduct proscribed by Penal Law § 240.30 (2), enforcement of the statute is unlikely to occur in the absence of a victim’s complaint to authorities. Given the opportunity to consider the veracity of the complainant and to engage in preliminary investigation, this statute vests no more discretion in the police than any other statute which proscribes malevolence or misconduct toward another person (compare, People v Bright, supra [statute required loiterer to give police officer a "satisfactory explanation of his presence”]). We conclude that the statute adequately describes an element of the proscribed conduct, and provides sufficient notice to potential offenders and sufficient guidelines to those who would enforce the statute and that defendant has failed to overcome the presumption of validity which attaches to legislative enactments (see, People v Bright, 71 NY2d, at 382, supra).

Ill

Defendant claims that the accusatory instrument was defective for lack of specificity because it did not identify the particular dates on which he was alleged to have made harassing telephone calls. Defendant was charged with one count of aggravated harassment in the second degree by an information which alleged that he "on or about and between December 12, 1990 & May 20, 1991 in the County of Queens, with the intent to harass, annoy, threaten and alarm Diane Buffalin, did make a series of telephone calls to Diane Buffalin with no purpose of legitimate communication.” The People contend that the information’s allegation that the criminal conduct occurred over a six-month period should not result in dismissal for lack of specificity because Penal Law § 240.30 (2) may be characterized as a continuing crime. We agree.

Each count in a charging instrument must state "that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time” (CPL 200.50 [6]). This requirement, along with others set forth in CPL 200.50, serves three purposes: to provide the accused with fair notice of the nature of the charge against him so that he may prepare his answer and defense to the charge; to ensure that the crime for which defendant is tried before the petit jury is in fact the crime with which he was charged; and, to identify the criminal conduct with sufficient specificity so that defendant, if convicted, may raise a double jeopardy claim as a bar to subsequent prosecution for the same conduct (People v Sanchez, 84 NY2d 440, 445; see also, People v Charles, 61 NY2d 321, 326-327; People v Iannone, 45 NY2d 589, 594). When defendant is charged with a crime that is perpetrated by commission of a single act and time is not a substantive element of the crime charged, the allegation of when that act was committed must be reasonably specific in light of all the circumstances of the particular case (see, People v Morris, 61 NY2d 290, 295-296; see also, People v Keindl, 68 NY2d 410, 419-420). When a crime may be committed by multiple acts over time and is amenable to characterization as a "continuing crime,” however, the count in the charging instrument may properly allege that the single offense was committed over a significant period of time (see, People v Keindl, 68 NY2d, at 421-422, supra; see also, People v First Meridian Planning Corp., 86 NY2d 608, 615-616 [decided today]).

A continuing crime is one "that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time” (People v Keindl, supra, at 421). Whether multiple acts may be charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act (see, People v Keindl, supra, at 421-422; see also, Matter of Johnson v Morgenthau, 69 NY2d 148). Guidance is also obtained from analysis of whether the Legislature intended to prohibit a course of conduct or only specific, discrete acts (see, People v Okafore, 72 NY2d 81, 86-87).

By its terms, Penal Law § 240.30 (2) imposes criminal liability for making a single telephone call, if placed with the requisite intent and lack of legitimate purpose. While a defendant may annoy, harass, or, more likely, threaten or alarm another person with a single telephone call, the statute does not necessarily contemplate a single act. The use of the terms “harass” and "annoy” are easily susceptible of describing multiple acts occurring over a period of time. Indeed, Penal Law § 240.30 (2) derives from, and was intended to be broader than, former Penal Law § 1423 (6) which was directed to tieing up business telephone lines by repeated calling. In revising the statute, the Legislature intended to proscribe repeated telephone calls to a residence that might "driv[e] a person to distraction” (see, Staff Notes of Commn on Revision of Penal Law, reprinted in CLS NY Statutes, vol 23B, Penal Law § 240.30, at 261). Thus, despite the statutory reference to a single phone call, the provision and its history readily permit characterization as a continuing offense over time (compare, People v Sanchez, 84 NY2d 440, 448, supra [crime of fortune telling completed each time a person answers a question or gives advice]). Given the circumstances of this case, the superior court information that charged defendant with making a series of phone calls to a specific person over a six-month period adequately advised defendant of the conduct for which he was charged and the purposes of the specificity rule were achieved: he was able to defend the charges, his trial was conducted according to the conduct alleged in the information, and he will have sufficient information to fend off any subsequent attempts to reprosecute him for the same conduct.

Finally, defendant contends that he was deprived of a fair trial by the introduction of evidence of defendant’s mental illness through the testimony of Buffalin because her testimony violated the psychologist/patient privilege which attended their relationship (see, CPLR 4507). Asserting the existence of a psychologist/patient relationship, defense counsel successfully obtained a pretrial ruling that Buffalin could not testify about defendant’s condition or medication unless defendant opened the door to such testimony. Subsequently, however, defense counsel affirmatively injected the issue of defendant’s mental illness into the trial during her opening statement, and thereafter raised no relevant objection to Buffalin’s testimony. Thus, defendant’s contention that the trial court erroneously permitted such testimony is not preserved for this Court’s review.

IV

In sum, we conclude that Penal Law § 240.30 (2) does not violate the constitutional right to free speech, and it does not suffer from vagueness. The statute is amenable to characterization as a continuing crime, and in this case, the charging instrument adequately advised defendant of the time period during which he was alleged to have harassed his victim.

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

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.

      . Defendant does not contend that the Free Speech or Due Process Clauses of the New York State Constitution afford greater protection than those of the Federal Constitution. Accordingly, our analysis assumes the requirements of both documents are the same.

      . This statute has once before withstood a constitutional challenge in an intermediate appellate court (see, People v Smith, 89 Misc 2d 789, cert denied 434 US 920, supra).


author: Ciparick, J.

text:
    [658 NE2d 715, 634 NYS2d 669]
    In the Matter of William F. Wallace et al., as Trustees under a Declaration of Trust Dated December 30, 1955, Respondents, v 600 Partners Co., Appellant.
    Argued September 21, 1995;
    decided November 2, 1995

      POINTS OF COUNSEL

      White & Case New York City (Philip H. Schaeffer, John S. Willems, T Douglas Hollowell and J Stepan Wood of counsel), for appellant.
    I. Postponement of each appraisal for 32 years (i.e., until one year prior to the end of each respective renewal term) is contrary to the intent of the parties as shown in the balance of the ground lease. II. The majority and concurring opinions below fail to confront many inconsistencies and are based on unacceptable speculations. III. The court should either (1) implement the intent of the parties to the ground lease by interpretation and correct the scrivener’s error by directing the appraisal to proceed, or (2) direct a new trial at which, after disclosure proceedings are completed, tenant can demonstrate the true intentions of the original parties. (Aron v Gillman, 309 NY 157; W.W.W. Assocs. v Giancontieri, 77 NY2d 157; Castellano v State of New York, 43 NY2d 909; Long Is. R. R. Co. v Northville Indus. Corp., 41 NY2d 455; Potthoff v Safety Armorite Conduit Co., 143 App Div 161, 144 App Div 937; Castelli v Burns, 156 App Div 200; White v Roughton, 689 F2d 118, 460 US 1070; Kister Oil Dev. Corp. v Young, 27 F2d 433; Hart v Blabey, 287 NY 257; De Forest v Walters, 153 NY 229.)

      Kaye, Scholer, Fierman, Hays & Handler, New York City (Richard C. Seltzer and Naomi B. Waltman of counsel), for respondents.
    I. The court should dismiss the appeal for lack of jurisdiction pursuant to CPLR 5601 (a), since the dissent does not involve a question of law. (Cross Props, v Brook Realty Co., 67 NY2d 869; Matter of McVey v Papier, 60 NY2d 890.) II. The majority below properly found that article 17 is unambiguous and consistent with the other provisions of the lease and with the intent of the parties. (W.W.W. Assocs. v Giancontieri, 77 NY2d 157; American Express Bank v Uniroyal, Inc., 164 AD2d 275.) III. Tenant’s criticisms of the decision of the majority below are without merit. IV. The majority below correctly held that interpretation is not available to rewrite article 17. (W.W.W. Assocs. v Giancontieri, 77 NY2d 157; Castellano v State of New York, 43 NY2d 909; Castelli v Burns, 156 App Div 200.) V. Since article 17 is clear and unambiguous on its face and is consistent with the other provisions of the lease, the court should not consider paroi evidence. (W.W.W. Assocs. v Giancontieri, 77 NY2d 157.) VI. Tenant should not be allowed to proceed with its reformation claim, because any claim for reformation is time-barred. (Duffy v Horton Mem. Hosp., 66 NY2d 473; McCarthy v Volkswagen of Am., 55 NY2d 543.)
   OPINION OF THE COURT

Ciparick, J.

The question presented is whether article 17 of the ground lease between these parties is enforceable as written. We agree with the courts below that the provision at issue is unambiguous and does not lead to an absurd result or render the lease unenforceable. Thus, resort to judicial construction and extrinsic evidence is unnecessary. Accordingly, we affirm.

Petitioners landlords and respondent tenant entered into a 99-year ground lease in 1960 for property located on Madison Avenue between 57th and 58th Street in the Borough of Manhattan. Tenant is the assignee of the lease. Landlord succeeded the original trustee who entered into the ground lease with tenant’s assignor. Tenant has constructed a 26-story office building on the property.

The lease provided for an initial term of 33 years, with options to tenant to renew for two additional 33-year terms. The lease provided for six incremental rent increases during the initial 33-year term, with a starting rent of $100,000 annually increasing to $160,000 in 1985. The rent for the final eight years of the initial term was to be calculated at 6% of the appraised "then value” of the land, which amount was determined to be $2,100,000 in 1985.

Prior to expiration of the initial term, tenant timely exercised its option to renew under article 16 of the lease, which provides that the rent amount is to be fixed by agreement between the parties or, in the absence of agreement, by an appraisal to be calculated at 6% of the "then value” of the land. When the parties could not agree on a rental amount for the renewal term, tenant sought an appraisal under article 17 of the lease, which provides in pertinent part:

"The party desiring * * * appraisal shall give written notice to that effect to the other party * * * except that in case of any appraisal under the provisions of Sections 16.01 or 16.02 hereof with respect to the first renewal term and the second renewal term, neither party shall give such written notice to the other party earlier than twelve (12) months prior to the expiration of any such renewal term” (emphasis added).

The term "expiration” is at the heart of this dispute. If read literally, it requires that the determination of the rent amount for the first renewal term — which commenced on July 1, 1993 — take place 32 years after the term began, in 2025. The effect of postponing a determination of the rent due until 2025 is to freeze the annual rent for the first renewal term at the current amount, requiring tenant to make a lump-sum payment at the end of the first renewal term representing the difference between the amount arrived at pursuant to the retrospective appraisal and the rent actually paid during the renewal term.

Landlords commenced this proceeding pursuant to CPLR 7601 to stay the appraisal on the ground that it was premature and could not be instituted until 2025 under the terms of the lease. Tenant answered, seeking reformation of the lease based upon a scrivener’s error. Supreme Court granted the petition to stay the appraisal, concluding that the lease was a clear and unambiguous document entitled to enforcement according to its terms. The court noted that the lease was executed and later revised by "sophisticated business people ably assisted by presumed reasonably competent counsel and competent financial advisors.” Finally, the court concluded that any claim for reformation of the lease was time-barred under the six-year Statute of Limitations of CPLR 213.

The Appellate Division affirmed, with two Justices dissenting. The majority concluded that courts should not, "under the guise of interpretation, rewrite part of an agreement which is clear and explicit simply because a party’s expectation of the bargain does not materialize due to a change in economic climate.” (205 AD2d, at 206.) The majority additionally noted that article 17 of the lease was not only negotiated and drafted by experienced business people, but also "reviewed and revised by the parties a number of times.” (Id., at 206.) The dissent opined that "this provision is so at odds with normal business practice as to render its meaning unclear”, thus necessitating a trial on the issue of the parties’ intent. (205 AD2d, at 211.) Tenant appealed to this Court as of right pursuant to CPLR 5601 (a).

Tenant contends that the word "expiration” appearing in paragraph 17.01 of the ground lease is a scrivener’s error which went unnoticed from 1960 to 1993. Tenant claims that article 17.01 should not be read literally because it would give rise to dramatic inconsistencies and anomalies. Primarily, tenant complains of the fiscal uncertainties resulting from retrospective appraisal, including the prospect of belated lump-sum payments in amounts which are presently unascertainable, and resultant difficulty in selling or mortgaging its interest in the lease and setting rents when subleasing to tenants of the office building.

At the outset, we note that tenant’s claim for reformation is time-barred. The six-year Statute of Limitations of CPLR 213 (6) began to run in 1960, at the time the asserted "scrivener’s error” was allegedly committed. In the absence of a claim for reformation, courts may as a matter of interpretation carry out the intention of a contract by transposing, rejecting, or supplying words to make the meaning of the contract more clear (see, Castellano v State of New York, 43 NY2d 909, 911). However, such an approach is appropriate only in those limited instances where some absurdity has been identified or the contract would otherwise be unenforceable either in whole or in part (see, e.g., Castelli v Burns, 156 App Div 200).

" 'It is axiomatic that a contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language employed’ ” (Breed v Insurance Co., 46 NY2d 351, 355, quoting Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16, 19). Thus, "clear, complete writings should generally be enforced according to their terms” (W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 160). This "sensible proposition of law”, which we reaffirm today, imparts " 'stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesses * * * [and] infirmity of memory’ ” (id., at 162, quoting Fisch, New York Evidence § 42, at 22 [2d ed]). The rule has even greater force in the context of real property transactions, "where commercial certainty is a paramount concern” (id.), and where, as here, the instrument was negotiated between sophisticated, counseled business people negotiating at arm’s length (see, Chimart Assocs. v Paul, 66 NY2d 570, 574).

The question whether a writing is ambiguous is one of law to be resolved by the courts (see, Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191; Sutton v East Riv. Sav. Bank, 55 NY2d 550, 554). The rules governing the construction of ambiguous contracts are not triggered unless the court first finds an ambiguity (see, Breed, supra, at 355). We conclude that article 17 as written is not unenforceable and does not create an absurd result. Considered in isolation or in the context of the ground lease as a whole, article 17 is clear and complete and allows for the implementation and enforcement of its terms. While the retrospective appraisal mechanism may be novel or unconventional, this does not warrant an excursion beyond the four corners of the document (see, 4 Williston, Contracts, § 610A, at 513 [3d ed] ["it is not the function of the judiciary to change the obligations of a contract which the parties have seen fit to make”]).

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.

Order affirmed, with costs.

       Article 16 provides in pertinent part:
      "during said first renewal term the net annual rental * * * shall be a sum agreed upon by the Landlord and the Tenant or, in the case of their failure to agree, a sum per annum equivalent to six per centum (6%) of the then value of the land (said land being considered as vacant and unimproved) as fixed and determined by appraisal under the provisions of article 17, hereof, but in no event less than a sum per annum equivalent to the net annual rental at the rate payable immediately prior to the expiration of said original term. * * *
      "If at the commencement date of any renewal term the amount of the net annual rental payable during such renewal term under this article 16 shall not have been determined, then until such determination the Tenant shall continue to pay the net annual rental thereafter becoming due and payable at the rate payable immediately prior to the commencement of such renewal term, provided that within fifteen (15) days after the determination by the appraisers of the net annual rent, the Tenant shall pay to the Landlord the difference, if any, between the rent theretofore paid at said rate and the rent as fixed by appraisal.”