author: Fuchsberg, J. Chief Judge Breitel and Jones and Wachtler, JJ. Gabrielli, J.

text:
    The People of the State of New York, Appellant-Respondent, v Antonio Roche, Respondent-Appellant.
    Argued March 29, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      Mario Merola, District Attorney (Leonard G? Kamlet and Billie Manning of counsel), for appellant-respondent.
    I. Defendant’s guilt was established by overwhelming evidence. II. A charge to the jury as to the defense of agency was not warranted by a reasonable view of the evidence adduced at trial. (People v Bucher, 30 NY2d 708; People v Hingerton, 27 AD2d 754, 26 NY2d 790; People v Repola, 280 App Div 735, 305 NY 740; People v Fisher, 35 AD2d 886; People v Fuller, 34 AD2d 852; People v Harris, 28 AD2d 1174, 24 NY2d 810; People v Pulliam, 28 AD2d 786; United States v Foster, 469 F2d 1; People v Wright, 15 NY2d 555; People v Paturso, 34 AD2d 832.)

      Lawrence A. Vogelman and William E. Hellerstein for respondent-appellant.
    I. The court below correctly reversed defendant’s narcotics sale conviction because the trial court refused to instruct the jury on the agency defense, where the evidence strongly suggested that defendant had acted solely on the undercover officer’s behalf. (People v Lindsey, 16 AD2d 805, 12 NY2d 958; United States v Sawyer, 210 F2d 169; United States v Moses, 220 F2d 166; People v Buster, 286 App Div 1141; People v Johnston, 47 AD2d 897; People v Fortes, 24 AD2d 428, 17 NY2d 583.) II. The court below erred in upholding the trial court’s failure to charge agency as to the narcotics possession charge, where defendant’s possession was merely incidental to the officer’s purchase. (People v Silverman, 23 AD2d 947.)
   OPINION OF THE COURT

Fuchsberg, J.

Today this court reaffirms the established New York rule that one who acts solely as the agent of a purchaser of narcotics cannot be convicted of the crime of criminal sale of a controlled substance. Having thus determined that the abolition of that defense would be an unwarranted departure from the decisional law of this State, we must decide in the present case whether, under a reasonable view of the evidence adduced at trial, the jury should have been charged on that question.

The proof in this case, essentially undisputed, was garnered by an undercover police officer, Sylvio Lugo, who struck up a friendship with the defendant, Antonio Roche, after initially encountering him as a fellow patron at various bars. In the course of one of their later meetings, Lugo mentioned that he was interested in making a purchase of narcotics. Roche indicated that he might be of assistance in doing so and invited Lugo to telephone him for that purpose if he so desired. After Lugo’s subsequent attempts to follow up were unsuccessful, he sought out Roche at a bar and advised him that he had indeed decided to buy cocaine or heroin. In the course of this conversation, he told Roche that he had in mind an "eighth” (approximately four ounces); Roche estimated the cost of such a quantity at between three and four thousand dollars, depending on its quality and who the seller was.

It was not, however, until the better part of two months had gone by that Lugo telephoned Roche to tell him that he was in a hurry to make an immediate purchase. From The Bronx, where they then met at Roche’s request, they proceeded at the latter’s direction to Les Nannettes Bar in Manhattan, using Lugo’s car. There Roche entered the premises alone, presumably to "see the man” who was the seller. Upon returning to Lugo, who had been waiting in the car, he reported that things had been arranged and that the price would be $4,000. Lugo thereupon handed that sum in cash to Roche who, again alone, re-entered Les Nanettes with it and in a few minutes was back to advise Lugo that the actual delivery of the drugs would take place at a discotheque called the Cheetah.

At the Cheetah, Lugo remained in an upstairs bar area while Roche went to the floor below. As he waited, Lugo observed a shabbily dressed man enter the lower level of the premises with a newspaper under his arm. From Lugo’s vantage point, he was able to observe this man remove a white paper bag from the folds of the newspaper and hand it to Roche, who placed it in his waistband. Roche then walked upstairs and, in turn, gave the package to Lugo. Police analysis was to reveal it contained heroin.

About 10 days later, Lugo in the course of a telephone conversation with Roche, complained about the quality of the narcotics. Roche chided Lugo for not having said something about it earlier. The record does not indicate that there was any request or suggestion for adjustment.

Roche was subsequently indicted for criminal sale of a controlled substance in the first degree (Penal Law, § 220.43) and criminal possession of a controlled substance in the first degree (Penal Law, § 220.21). At nisi prius, defense counsel’s request for an instruction on agency was denied, the trial court ruling that there was no evidence to support such a contention. A divided Appellate Division, finding that there was such proof, modified by reversing the conviction for criminal sale and directing a new trial on that count; it affirmed the conviction for criminal possession. The case is now here on cross appeals. On this record, we believe the Appellate Division’s determination should be upheld.

As noted in People v Sierra (45 NY2d 56), People v Lam Lek Chong (45 NY2d 64) and People v Argibay (45 NY2d 45), the underlying theory of the agency defense in drug cases is that one who acts as procuring agent for the buyer alone is a principal or conspirator in the purchase rather than the sale of the contraband. Since the thrust of our statutes, as consistently construed, is not directed against purchasers, an individual who participates in such a transaction solely to assist a buyer and only on his behalf, incurs no greater criminal liability than does the purchaser he aids and from whom his entire standing in the transaction is derived. Specifically, without more he may not be treated as an accomplice of the seller (see People v Pasquarello, 282 App Div 405, affd 306 NY 759; see, also, People v Catterall, 5 Wash App 373; 23 CJS, Criminal Law, § 798 [16], [18], [20]). Of course, such a role is not to be confused with that of a middleman — be he a jobber or any other category of merchant trading in narcotics, or a broker furthering his own interests by serving both seller and buyer — who thus essentially acts for himself rather than merely as an extension of the buyer (People v Argibay, supra, p 53).

Concededly, the introduction of the term "agency” into the lexicon of the law governing drug prosecutions at most carries with it limited application of concepts which govern its use in defining relationships and responsibilities more characteristic of the world of commerce and property (People v Argibay, supra, p 53). Blunt acknowledgement of that fact would lessen consequent confusion. As a practical matter, it lends an element of flexibility to the resolution, by Judge or jury, of the relationship to a particular drug transaction of certain of the wide variety of participants who do not neatly fit into the mold of buyer or seller. These range along a spectrum reaching all the way from those whose predatory and profit-laden motives spell out the unmistakably dominant parts they play in such transactions, to those at the far end — who may include persons as diverse as impressionable students, victims of contributing socioeconomic or medical problems, and others who have been seduced by exposure to drugs to fall into a state of dependency on them.

It is therefore not to be assumed that all those who engage in procurement of illegal drugs are motivated by a criminal disposition rather than a desire to satisfy a personal craving to feed an irresistible habit or to aid one so afflicted. Thus, the "agency defense” in good part may be seen as a common-law attempt, in appropriate cases, to recognize the existence of medical and sociological aspects which complicate the factual setting within which the nature of a particular defendant’s participation is to be determined.

Perhaps it was out of a recognition of this problem that, just as it has chosen to leave the act of buying drugs unprohibited by the criminal law, the Legislature has also left the agency defense inviolate. Given the accelerated and massive legislative attention that the narcotics laws have received within the last decade, and the fact that our Legislature has chosen to punish drug trafficking more severely than has any other jurisdiction (People v Broadie, 37 NY2d 100, 116, cert den 423 US 950; Carmona v Ward, 576 F2d 405 [Oakes, J., dissenting]), we must assume that its acceptance of the defense represents a calculated and ameliorative judgment not to impose such penalties upon a person who merely facilitates the acquisition of drugs by a purchaser (People v Chong, supra, p 74).

Moreover, the agency defense rarely, if ever, is credited by the fact finder in the predator case. Not surprisingly, examination of the existent literature on drug prosecutions discloses no suggestion that the assertion of that defense in such profit-laden circumstances leads to any noticable number of acquittals.

This does not mean that the agency defense is a broad brush to be laid on indiscriminately. It goes without saying that, in order to fall within its sweep, the agent must have no direct interest in the contraband being sold. His function must be performed without any profit motive (compare People v Wright, 20 AD2d 652, affd 15 NY2d 555, with People v Lindsey, 16 AD2d 805, affd 12 NY2d 958). If he is in fact interested in the outcome, either by ownership of the property or by an agency relationship with the seller, he fails, by definition, to be an agent for the purchaser (see People v Chong, supra; People v Argibay, supra).

Where the defense is raised, it is incumbent to focus on the parties’ conduct during the transaction. Salesman-like behavior, commonly connoting an interest that goes beyond representation of the buyer alone, may include touting the quality of the product (see United States v Smith, 452 F2d 404; cf. United States v Johnson, 371 F2d 800, 806-807), bargaining over price (United States v Winfield, 341 F2d 70, 71; cf. People v Harris, 24 NY2d 810) and apologizing for the quality of drugs or the manner of their delivery (United States v Winfield, supra, p 71). Previous acquaintance with the supplier, or with narcotics in general, though of lesser import, may also be taken into account (cf. People v Jenkins, 41 NY2d 307, 312; People v Bucher, 30 NY2d 708; People v Hingerton, 26 NY2d 790).

On the other hand, the fact that an accused advances no funds of his own in making a purchase for another may militate against a finding that he is a principal (see Vasquez v United States, 290 F2d 897, 898). Though evidence that he was simply doing a favor for a friend may also suggest an agency, he still may be found to have participated in selling if his actions were undertaken with the paramount idea that he would profit thereby (see People v Wright, 20 AD2d 652, affd 15 NY2d 555, supra; United States v Smith, 452 F2d 404, supra).

This is not to say, however, that the acceptance of any benefit must preclude the assertion of the defense as a matter of law. That an agent does not act gratuitously would not necessarily be inconsistent with the defense of agency (People v Valentine, 55 AD2d 585; People v Bostick, 51 AD2d 749; People v Johnson, 47 AD2d 897; People v Fortes, 24 AD2d 428, app dsmd 17 NY2d 583).

Although often raised together with entrapment (e.g., United States v Barcella, 432 F2d 570, 572; United States v Sawyer, 210 F2d 169; Note, 22 Kan L Rev 272, 276), agency is not an affirmative defense (Lewis v United States, 337 F2d 541, 543, n 4 [Burger, J.], cert den 381 US 920; contra, People v Fuller, 34 AD2d 852). Rather, it may negate the existence of an essential element of the crime — the "sale” (Lewis v United States, supra, p 543, n 4).

It follows that, so long as there is some reasonable view of the evidence that the defendant acted as a mere instrumentality of the buyer, determination of the existence of an agency relationship should be submitted to the jury with appropriate instructions (People v Argibay, supra, p 53; see, also, People v Carr, 41 NY2d 847, revg on dissent at 49 AD2d 656, 657; Lewis v United States, 337 F2d 541, supra; Kelley v United States, 275 F2d 10; cf. People v Henderson, 41 NY2d 233).

Applying that yardstick here, it is apparent that there was an issue of fact on the question of agency. The course of negotiations was such that Roche could well have been found not to have shared the role of principal in the transaction. At no time did he suggest the purchase or press for it. It was Lugo who pursued their relationship and initiated their conversations about drugs. Nonentrepreneur like, despite Lugo’s evincing a desire to make a purchase, Roche apparently never brought the subject up again; it remained for Lugo to do so, nearly two months later.

Though Roche expressed an opinion as to what he thought would be the cost of the quantity of drugs Lugo desired to buy, so far as the proof indicates it may not have been until after he entered Les Nannettes to see "the man” that he was able to inform Lugo how much it actually was. Nor is there an iota of proof, by way of admission or otherwise, of any material benefit received by Roche at any time; the record is barren of evidence of how the proceeds of the purchase were disposed of other than as described by Roche himself.

Moreover, it may be significant that Lugo was not dependent upon Roche’s own statements that the supplier of the drugs was a third party; the observations it was his duty as an officer to make enabled him to witness the delivery itself. And when Lugo later mentioned to Roche that the heroin was of poor quality, the tape that recorded the conversation discloses not the slightest expression of an obligation to explain or undertake to remedy this shortcoming nor did Lugo appear to expect any.

True it is that Roche was no stranger to drugs, to their prices and to persons involved in. their traffic, but no matter what suspicions that fact might very well engender it could hardly be conclusive, since that no doubt is the prime qualification a prospective buyer would look for in choosing an intermediary.

The defense having thus squarely presented the issue of agency, the jury should have been instructed on the applicable law under which it could decide whether Roche enjoyed the status of agent. But, with respect to the conviction of criminal possession of a controlled substance, first degree, since agency would not be a defense (People v Sierra, 45 NY2d 56, supra) and the evidence establishes that Roche, however transitorily, was knowingly in possession of the heroin, the conviction on that count must stand.

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

Chief Judge Breitel and Jones and Wachtler, JJ.

(concurring). We concur in result for the reasons stated in People v Lam Lek Chong (45 NY2d 64, decided herewith) with respect to the nature of the so-called "agency defense”. We do not believe that it is useful or desirable to characterize the agency defense in more precise terms. Essentially, the defense is one submitted to the jury for assessment on broad grounds not susceptible of meticulous definition. If the defense were susceptible of meticulous definition it would limit the jury’s perspective in determining whether the defendant was an independently culpable actor in the making of the sale rather than an abettor of the buyer in effecting the purchase. Worse, it would clutter a court’s charge with multifarious "ifs”, "ands”, and "huts”, confusing the jury and making likely, to no substantial interest in achieving justice, error-prone charges by the most conscientious and able of Trial Justices.

Gabrielli, J.

(dissenting in part). I respectfully dissent from so much of the court’s holding as affirms that part of the order appealed from which reversed defendant’s conviction for criminal sale of a controlled substance in the first degree.

My primary objection to the majority’s decision stems from my conclusion that this court ought not to recognize the existence of any "agency defense” to a charge of sale of a controlled substance. The "agency defense” in such a case is an unwarranted, unnecessary, and essentially unworkable judicial modification of that classification of criminal conduct enacted by the Legislature and embodied in the Penal Law. Moreover, even were I to concede the validity of an "agency defense” in certain situations, I would not deem it applicable to a case such as this, which involves the sale of a quantity of illicit drugs so large as to warrant the presumption that the purchaser was buying not for personal use, but for resale.

Initially, I note that the doctrine of stare decisis does not serve to bar consideration by this court of the existence of an "agency defense”, for we have not previously seized upon the opportunity to discuss the soundness of a doctrine which has crept into our law without that careful analysis appropriate to so significant a topic. The "theory” underlying the "agency defense” in New York State, such as it is, has been developed and applied in drug cases by the various Appellate Divisions rather than by this court. Even those courts, moreover, seem to have simply accepted at face value a doctrine which was initially developed in another day to deal with the somewhat different problems created by passage of the Eighteenth Amendment (see People v Buster, 286 App Div 1141); a doctrine, moreover, which has since been repudiated by the very Federal system which fostered it (compare United States v Sawyer, 210 F2d 169, with United States v Pruitt, 487 F2d 1241).

While decisions of the Appellate Divisions are, of course, of considerable persuasive authority, they are certainly not binding upon this court. Examination of those so-called "agency defense” cases which did reach this court, however, reveals for the most part a series of affirmances without opinion of Appellate Division determinations which discussed the agency defense concept (People v Lindsey, 12 NY2d 958; People v Wright, 15 NY2d 555; People v Bray, 15 NY2d 637; People v Harris, 24 NY2d 810; People v Sheldon K., 26 NY2d 949). It is of some interest to note that in the vast majority of cases before this court the "agency defense” was unavailing (compare People v Wright, supra; People v Bray, supra; People v Harris, supra; People v Hingerton, 26 NY2d 790, with People v Lindsey, supra; People v Hollins, 19 NY2d 864). At any rate, it is beyond cavil that an affirmance without opinion indicates merely that the result reached in a particular case is correct, and does not serve to place the imprimatur of this court upon the particular theory espoused by the court below. Such an affirmance is thus of little, if any, precedential value.

Perhaps the one case decided by this court which prevents me from declaring outright that we have in fact never indicated any approval of the "agency defense” prior to today is People v Carr (41 NY2d 847, revg 49 AD2d 656). There, the Appellate Division had sustained the refusal of the trial court to charge possession of a controlled substance as a lesser included offense to a charged sale of that substance. Mr. Justice Louis M. Greenblott dissented, contending that the jury could have found the defendant to be an agent of the buyer, and could thus have convicted him of possession and yet not of sale. We reversed on that dissenting memorandum. Although it cannot be denied that by our adoption of that memorandum we necessarily indicated some acceptance of the "agency defense” concept, I do not believe that so slender a reed should foreclose reconsideration of the doctrine at this time, especially since the validity of the "agency defense” theory was not challenged in that case. Accordingly, I conclude that my objections to the "agency defense” do not run afoul of the doctrine of stare decisis.

Turning then to the question of the validity of the "agency defense”, I cannot agree that that concept is implicit in the statutory classification of drug-related offenses, as the majority of this court concludes in both this case and its companion, People v Lam Lek Chong (45 NY2d 64, decided herewith). The majority purports to find legislative sanction for the "agency defense” in the admitted and hardly enigmatic fact that the Legislature has chosen to impose more stringent punishment upon the seller of drugs than upon the possessor of drugs. The court would draw from this classification the conclusion that the Legislature could not have wished to treat more severely than the actual buyer someone who can be denominated under some arcane mixture of agency and penal concepts an agent of the buyer. Admittedly this statement, so baldly put, has a certain appeal to one’s innate sense of justice. More careful consideration of the legislative scheme for controlling the illicit drug trade in New York, however, must lead to its rejection for several reasons even more compelling than the truism that had the Legislature wished to so modify its apparently all-inclusive classification system it could undoubtedly have found some less cryptic means of expressing that intent. I find the majority’s extrapolation a rather tenuous foundation upon which to exempt a person who engages in a forbidden transaction from criminal liability based on his participation in that transaction.

My disagreement with the majority is founded in large part upon an essential difference in interpretation of the legislative intendment. It is, of course, undisputed that the statutory classification of drug-related offenses may be broken down into two largely discrete categories, possession and sale, and that by and large those who are guilty of selling drugs are treated more harshly than those who are guilty only of their possession. The majority would view this system as turning upon a distinction between buyers and sellers, and would conclude that the Legislature did not intend to impose harsher sanctions upon an agent of the buyer than it did upon the buyer himself. I cannot agree with this dichotomy; rather, I suggest that the distinction intended to be drawn by the Legislature was between those individuals who contribute in some way to the distribution of illicit drugs, on the one hand, and the ultimate users of those drugs on the other. Thus, I believe that the Legislature is distinguishing not seller from buyer, but rather seller-distributor from user.

The Legislature has determined that the use and distribution of drugs constitutes a grave social danger and a basic threat to the very fabric of our society. Having made that determination, it was faced with a choice between a number of reasonable alternative means of attacking that problem. It could, if it so decided, for example, have concentrated solely on the seller of narcotics and have refrained from imposing any sanctions on the user. Instead, it determined, and wisely I believe, that in order to effectively counteract drug abuse, it was necessary to impose sanctions on both the seller and the user of drugs. Rather than treating with equal severity all participants in drug transactions, however, the Legislature tempered the potential harshness of its action by imposing less stern penalties upon those who possess small amounts of drugs, realizing that the user is as much a victim of the crime as he is a criminal. At the same time, however, it has not neglected to place on a parity with the seller those who possess drugs either with intent to sell or in such large quantities as to fall within the ambit of the "legislative presumption that he who possesses a large amount of narcotics is a seller” (People v Broadie, 37 NY2d 100, 113).

Viewed thusly, the statutory framework provides neither reason nor support for any "agency defense”. The Legislature has chosen to distinguish between those whose only crime is to possess relatively small amounts of drugs for their own use, and those who participate in and further the sale and distribution of illicit drugs to others. The agent, by definition, must fall within the latter category, regardless of whether his participation in the sale is motivated by a hope of profiting from the misery of others or by a misguided belief that it is in an addict’s best interests to obtain the drugs needed to assuage his habit. The agent may readily be distinguished from the buyer who purchases for personal use, for the latter is as much sinned against as sinning, and may with some reason be treated more gently. The agent, on the other hand, has made a knowing decision to aid in the distribution of drugs, something which is so clearly illegal. He does so not because he is driven to satisfy his own immediate needs, but for some other reasons — possibly a more selfless reason in the case of the "accommodation” agent, but in any case a more considered and less urgent reason. It does not seem unreasonable to treat such persons more harshly than one who possesses drugs for his personal use, for the latter is at least not contributing to the corruption of others. In any transaction involving an agent, that agent is an indispensable link in the chain of distribution. Since he is participating in the sale of narcotics to another, and is not simply obtaining drugs for his own use, his degree of culpability is greater than that of the buyer for personal use. The effect of the "agency defense” is to disrupt this carefully constructed system by the imposition of distinctions which are drawn from the law of agency and which are simply not pertinent to the legislative objective of eliminating drug abuse in New York.

Even were I to agree, however, that in some cases involving, for example, an "accommodation” agent, who simply accepts delivery of a small amount of already purchased drugs for a friend, some type of "agency defense” might be appropriate, I cannot agree that any valid public policy or purpose is served by the application of that "defense” in a case such as this. In the case before us, Roche stands convicted of the sale of four ounces of cocaine to an undercover police officer for some $4,000. The sale was the culmination of several meetings between the two, in the course of which Roche informed the officer that he sold "eighths” of cocaine on a regular basis and made about $500 on each eighth he sold. He also urged the officer to become involved in the drug business, telling him that he could, easily make as much as $1,000 a week by selling drugs he could purchase from Roche. This testimony was uncontested, and I am appalled that an "agency defense” is to be premised solely upon the shadowy existence of "the man” to whom Roche supposedly delivered the money given him by the officer as well as upon the fact that Roche, like most dealers, obtained the drugs from someone else.

The picture presented by the testimony is not that of an "accommodation” buyer seeking to aid a friend; rather it is a portrait of a man who is deeply involved in narcotics sales as a business, and who attempted to recruit the police officer into his business as a pusher of drugs to be supplied by him. To even suggest that an "agency” concept is appropriate in such a situation is inconsistent with reality. This conclusion is buttressed by the fact that such a large amount of cocaine was involved. The Legislature, which in most situations treats the crime of possession more leniently than that of sale, has excepted from this pattern the possession of large amounts of illicit drugs. In such cases, the Legislature has indulged in the reasonable presumption that the possession is with an intent to sell, and so provides sanctions commensurate to those imposed on sellers. Indeed, as we have stated in another context, a person who possesses a large amount of drugs "is hardly less culpable or dangerous than the appellants who made 'street’ sales” (People v Broadie, 37 NY2d 100, 113, supra).

I am concerned, moreover, not merely with the absence of any statutory authority for the so-called "agency defense” (see People v Sierra, 45 NY2d 56, 60, decided herewith), but also with what I consider to be certain potential inconsistencies inherent in so vague a concept. Indeed, I believe that close examination of the various "agency defense” cases decided by this court today shows that even those on this court who agree that there does exist an "agency defense” are unable to agree as to its source, its ramifications, and its applications. In the present case, for example, the majority is requiring an "agency defense” charge although all the testimony at trial indicates that Roche was certainly more than a mere agent of the police. In People v Lam Lek Chong (45 NY2d 64, supra, decided herewith), however, the court is sustaining a conviction, in the face of what the majority characterizes as an erroneous "agency defense” charge, on the ground that no "agency defense” charge is necessary in that case because the defendant there admitted that he hoped to obtain a collateral economic benefit as a result of the sale, although he denied that he was going to receive any direct profit from the sale itself. Finally, in People v Argibay (45 NY2d 45, decided herewith), the court is also sustaining the conviction of a defendant who was denied an "agency defense” charge. There the majority’s decision is based .upon the fact that all the People’s evidence at trial showed that Argibay was a middleman between the purchaser and the supplier. I see little difference between that case and this, since in both cases the respective defendants did not testify and the police testimony, if believed in full, would preclude an "agency defense”. On the other hand, there would appear to be as little in Argibay to preclude the jury from believing only a part of the police testimony as there is in the instant case. Indeed, in this case, as in Argibay, the portrait painted by the testimony is that of a middleman engaged in the sale and distribution of narcotics for profit. If anything, application of an "agency defense” concept is even less acceptable in this case than it would be in Argibay, because of the much greater amount of drugs involved here. Whatever possible justification may exist for an "agency defense” concept is certainly lacking in a case involving the sale of a large quantity of illicit drugs for resale. In short, I see no benefit to either the public or the law in recognizing a "defense” which is so uncertain of application.

I am also troubled by certain questions, not passed upon in these cases because of the posture in which they have reached us, but which may arise subsequently because of the court’s discussions of the "agency defense”. It is indicated, I believe, by the various opinions handed down today, that a majority of this court would agree that the term "agency defense” is a misnomer, since the concept propounded by the court is not a defense, but rather would negate the existence of an essential element of the crime charged, the sale itself. As such, it could be argued that in any case in which an "agency defense” charge could reasonably be demanded, it may well be a part of the People’s burden to prove the absence of agency. Looking to the realities of the rather murky world of the drug culture and of drug dealers, it is clear that such proof will often be well nigh impossible to obtain. Indeed, it would appear that the use of a few fairly simple ruses by a dealer would suffice to throw an impenetrable veil of confusion and uncertainty over his dealings and his status. In the present case, for example, it might be argued that for the People to convict defendant it would be necessary to proffer proof as to the relationship between Roche and the mysterious third man. I cannot agree that this is or should be necessary under the existing statutory scheme. The Legislature has deemed it appropriate to forbid all drug transactions, not simply those which can be proven to be profit oriented or organized along the lines of more legitimate business ventures.

Accordingly, I must dissent from so much of the majority decision as affirms that part of the order appealed from which reversed defendant’s conviction for sale of a controlled substance. I am, of course, in full agreement with so much of the court’s decision as rejects defendant’s cross appeal from the affirmance of his conviction for possession of a controlled substance.

Judge Cooke concurs with Judge Fuchsberg; Chief Judge Breitel and Judges Jones and Wachtler concur in result in a concurring memorandum; Judge Gabrielli dissents in part and votes to modify in a separate opinion in which Judge Jasen concurs.

Order affirmed.

      .The defense is not indigenous to New York alone. A clear majority of those of our sister States who have addressed the matter have adopted it (People v Fenninger, — Col —, 552 P2d 1018; Dent v State, 301 So 2d 475 [Fla] [semble]; State v Lott, 255 NW2d 105 [Iowa]; State v Osburn, 211 Kan 248; Kohler v Commonwealth, 492 SW2d 198 [Ky] [semble]; Snead v State, 234 Md 63; Commonwealth v Harvard, 356 Mass 452; Roy v State, 87 Nev 517; Jones v State, 481 P2d 169 [Okla]; State v Buchanan, 8 Ore 150 [semble]; Commonwealth v Simione, 447 Pa 473; Smith v State, 396 SW2d 876 [Tex]; State v Schultz, 28 Utah 2d 240; State v Catterall, 5 Wash App 373; see, also, United States v Stewart, 20 USCMA 300; contra, McKay v State, 489 P2d 145 [Alaska]; State v Russell, 108 Ariz 549; Granville v State, 287 A2d 652 [Del]; Brooks v

        State, 125 Ga App 867, cert den 409 US 1129; People v Shannon, 15 Ill 2d 494; State v Stone, 114 NH 114; State v Weissman, 73 NJ Super 274; State v Dwyer, 172 NW2d 591 [ND]; Higby v State, 485 P2d 380 [Wyo]).

      .In so indicating, the court, as at the time of our decision in People v Broadie, 37 NY2d 100, 118, supra, does not pass on the wisdom of the Legislature’s judgment. We note, however, that the intervening three years do not appear to have undermined the validity of Chief Judge Breitel’s observation that the "pragmatic value [of these penalties] might well be questioned, since more than a half century of increasingly severe sanctions has failed to stem, if indeed it has not caused, a parallel crescendo of drug abuse. The premises upon which the Legislature has proceeded have been subjected to vigorous dispute (see, e.g., United States v Moore, 486 F2d 1139, 1243-1246 [Wright, J., dissenting], supra; Report of the President’s Advisory Comm, on Narcotic and Drug Abuse, pp 3, 40; Drug Use in America, op. cit., pp 250-251; Rosenthal, Proposals for Dangerous Drug Legislation, Task Force on Narcotics and Drug Abuse, op. cit., pp 80, 103; Chambliss, Types of Deviance and the Effectiveness of Legal Sanctions, 1967 Wis L Rev 703, 707-708; Frankel, Narcotic Addiction, Criminal Responsibility and Civil Commitment, 1966 Utah L Rev 581, 587-588). Indeed, the debate moves beyond the wisdom of substituting long mandatory prison terms in place of flexible sentencing, of emphasizing isolation and deterrence over rehabilitation. Even the questions whether 'the policy of criminalization, which raises the cost and increases the difficulty of obtaining drugs, does in fact make the drug user a proselytizer of others in order that he may obtain the funds to acquire his own drugs’, and whether 'the compulsion of the addict to obtain drugs and the moneys to purchase them causes him to commit collateral crime that otherwise he might not commit’, are questions about which reasonable men can and do differ [citations omitted]”.


source: Caselaw Access Project

author: Jasen and Gabrielli, JJ.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Lloyd George McLeod, Appellant.
    Argued February 17, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      Herbert S. Siegal for appellant.

      Mario Merola, District Attorney (Leonard G. Kamlet and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed on the memorandum at the Appellate Division (58 AD2d 747).

Concur: Chief Judge Breitel and Judges Jones, Wachtler, Fuchsberg and Cooke. Judges Jasen and Gabrielli concur in result only in the following concurring memorandum.

Jasen and Gabrielli, JJ.

(concurring). We concur in result only because we reject the agency defense, as is articulated and explained in the dissenting opinion by Judge Gabrielli in People v Roche (45 NY2d 78, decided herewith).

Order affirmed, etc.


author: Wachtler, J. Gabrielli, J.

text:
    Roger Selkowitz et al., Respondents, v County of Nassau, Appellant.
    Argued April 27, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      Edward G. McCabe, County Attorney (Matthew Tedone, Natale C. Tedone and J. Trubee Miller of counsel), for appellant.
    I. The failure of the trial court to instruct the jury relating the law to the testimony was fundamental error. (Green v Downs, 27 NY2d 205; Stanton v State of New York, 26 NY2d 990; Thain v City of New York, 35 AD2d 545, 30 NY2d 524.) II. The admission of expert testimony was prejudicial error.

      Morris Block for respondents.
    I. Patrolman Donley violated his obligation to conduct himself with due regard for the safety of others on the highway and this was a proximate cause of the accident. (Myers v Town of Harrison, 438 F2d 293; Thain v City of New York, 35 AD2d 545, 30 NY2d 524; Jansen v State of New York, 60 Misc 2d 36, 32 AD2d 889; Stanton v State of New York, 29 AD2d 612.) II. The charge was proper in that it adequately presented the main contentions of the parties as applied to the pertinent provisions of the law. (Green v Downs, 27 NY2d 205; Myers v Town of Harrison, 438 F2d 293; Kellegher v Forty-Second St. R. R. Co., 171 NY 309; Dolan v Delaware & Hudson Canal Co., 71 NY 285; Izzo v Jennings, 271 App Div 914; Callahan v New York Rys. Corp., 235 App Div 219.) III. Expert testimony by a police expert in the matter of police practice assisted in the determination of this matter. (Myers v Town of Harrison, 438 F2d 293; Matter of General Acc. Fire & Life Assur. Corp. v Krieghbaum, 46 AD2d 713.) IV. Defendant’s counsel first introduced the question to plaintiffs’ police expert as to the propriety in stopping the police car in the parking lane. It cannot now complain of error. V. The testimony in this trial was completed in one day. Accordingly, defendant’s reliance on Green v Downs (27 NY2d 205) is misplaced. (Leven v Marguerite, 52 AD2d 970; Tenczar v Mulligan, 47 AD2d 773.)
   OPINION OF THE COURT

Wachtler, J.

In this negligence action arising out of an automobile collision during a high-speed police chase, a jury found the defendant county liable for injuries sustained by the plainitff bystanders after hearing expert testimony on the propriety of using a police vehicle as a partial or complete roadblock. The admissibility of the expert’s opinion evidence is the critical issue on this appeal by the county.

According to the trial testimony of Patrolman Donley of the Nassau County Police Department, while on motor patrol duty shortly before 3:00 a.m. on May 7, 1972, he received a radio call for assistance in intercepting and stopping a stolen Lincoln sedan. The Lincoln’s 14-year-old driver had turned off the parkway and was being pursued at high rates of speed by a State Parkway Police vehicle.

A second radio message advised Patrolman Donley that the State Police were then in pursuit southbound on Grand Avenue, a four-lane undivided thoroughfare with a parking lane and sidewalks on either side. By the time he received a third radio report, Donley was heading northbound on Grand Avenue just south of an intersection with North William Street.

Three cars occupying Grand Avenue’s southbound lanes were stopped behind a red traffic signal at that intersection. The plaintiffs were passengers in one of those cars, a Volkswagen stopped in the lane nearest the center of the road. Another car was behind the Volkswagen and a third was alongside in the right southbound lane. The parking lanes on both sides of Grand Avenue were unobstructed.

As Patrolman Donley approached the intersection from the opposite direction, he observed the Lincoln closing in at a distance of approximiately 500 feet and a speed of some 70 to 80 miles per hour. He testified that just after crossing North William Street he had pulled over to the parking lane against the curb on the northbound side, intending to make a U-turn and assist in the chase after pursuer and pursued had passed.

According to the plaintiffs’ testimony, however, the police vehicle was in fact positioned slantwise across the northbound lanes adjacent to the Volkswagen blocking the traveled portion of Grand Avenue completely and causing the driver of the stolen Lincoln to suddenly apply his brakes, skid sideways and collide without any warning into the rear of the three cars still stopped at the traffic light. Both plaintiffs were severely injured.

After presenting their version of the accident to the jury, the plaintiffs called former Police Captain John McCaffrey as a purported expert witness on emergency traffic procedures. As a 26-year veteran of traffic control management and a former Senior Police Examiner for the State of New York with 11 years’ experience as an instructor and consultant for various police departments, the witness’ qualifications as an expert were found by the trial court to be beyond objection. He was therefore permitted to testify, again over the defendant’s objection, that in his opinion it would be neither proper nor accepted police practice to place an emergency vehicle across the northbound lanes under the circumstances described on direct examination. The witness based his opinion on a single premise: the first concern of a policeman driving an authorized emergency vehicle is for the complete safety of the public and he should therefore at no time jeopardize anyone using a public highway by placing his vehicle in a position which might create a dangerous condition.

On cross-examination Mr. McCaffrey was asked whether it would not be proper police practice to have stopped the emergency vehicle in the parking lane next to the curb some 10 to 15 feet north of the three cars stopped at the traffic light on the opposite side of the road. The witness answered that this would create a partial roadblock endangering the three stopped cars since the open parking lane would otherwise be considered by the fleeing driver of the Lincoln as part of the roadway available for escape. The proper police practice in his opinion would have been to pull off the highway at the intersection or any driveway, report his position, and join in the pursuit only after the speeding vehicles had safely passed the three jeopardized cars.

The trial court charged the jury on negligence generally and then sought to relate the trial testimony to the law, including relevant portions of the Vehicle and Traffic Law dealing with authorized emergency vehicles and the traditional guidelines for determining the weight, if any, to be accorded an expert’s testimony. Specifically the jury was instructed that the expert’s opinion should be entitled to no greater weight than his qualifications and over-all credibility were found to warrant; his testimony was admitted solely to assist the jury in determining the appropriate standard of care for a police vehicle in an emergency situation, but not to provide any ready-made answer or to otherwise control the judgment of the jury. A verdict in favor of the plaintiffs was returned on the issue of liability.

The defendant on this appeal argues that the trial court’s failure to properly instruct the jury on the law to be applied in emergency situations, coupled with the license afforded to the expert’s testimony, in effect gave the jury no choice but to find the county negligent.

We agree with the majority at the Appellate Division that the main issue at trial was essentially one of credibility and that both sides of the case were fairly presented to the jury. In addition, precisely because there is no particularized "emergency law” or specific set of established or even informal rules and regulations detailing the proper role for police vehicles in each unique highway emergency, the testimony of an experienced professional in these matters could only have assisted rather than prejudiced the jury.

Whether or not expert testimony is admissible on a particular point is a mixed question of law and fact addressed primarily to the discretion of the trial court. As a general rule the expert should be permitted to offer an opinion on an issue which involves "professional or scientific knowledge or skill not within the range of ordinary training or intelligence” (Dougherty v Milliken, 163 NY 527, 533). For that reason expert testimony has been held to be admissible not only to explain highly technical medical or surgical questions (e.g., Meiselman v Crown Hgts. Hosp., 285 NY 389), but has also been found appropriate to clarify a wide range of issues calling for the application of accepted professional standards. This includes the standard of care for contractors (e.g., O’Connor v 595 Realty Assoc., 23 AD2d 69, app dsmd 17 NY2d 493), fire fighters (McGee v Adams Paper & Twine Co., 26 AD2d 186, affd 20 NY2d 921), window washers (Gonzalez v Concourse Plaza Syndicates, 31 AD2d 401) and mariners (e.g., Carpenter v Eastern Transp. Co., 71 NY 574) to name but a few.

To be sure the average juror is quite familiar with the everyday rules of the road. These are a matter of common knowledge and therefore the standard of care ordinarily imposed on members of the public in handling common traffic perils neither requires nor admits expert clarification. However the jury in this case was being asked the different question whether the police officer, by reason of his special training and experience, should have been able to foresee and act to forestall or at least minimize rather than aggravate the obvious danger, given the few split seconds and scanty information available to him in choosing an appropriate course of conduct. Most jurors of course have never been involved in a high-speed chase. And few indeed are familiar with authorized police procedures.

Since the police are confronted with a special responsibility not only for, apprehending violators but also for preventing them from endangering others while at the same time operating their emergency vehicles in a manner that is neither careless, reckless nor wanton, however compelling the emergency (Commisso v Meeker, 8 NY2d 109; see Vehicle and Traffic Law, § 1104), special rules of accepted police emergency practices have naturally developed from this particular professional experience. That code, although often merely internal or even tacit, nevertheless creates a special standard of care for this particular class of drivers.

Under these circumstances expert testimony was admissible to clarify the proper police practice expected in a given police emergency, despite the fact that no specific departmental rules or formal guidelines prevail and despite the jury’s common understanding of driving standards generally (see Myers v Town of Harrison, 438 F2d 293; cf. Kulak v Nationwide Ins. Co., 40 NY2d 140).

The defendant of course was free to impeach the plaintiffs’ expert or to offer a different opinion through its own qualified witnesses. Having opted to rely exclusively on its own cross-examination of the single expert witness called to testify in the case, the county should not be heard to complain of prejudice when clarification alone would be the result.

The order of the Appellate Division should be affirmed and the question certified answered in the affirmative.

Gabrielli, J.

(dissenting). I dissent, and vote to reverse the order of the Appellate Division and answer the certified question in the negative.

It was error for the trial court to permit plaintiff’s "expert” to testify that Officer Donley’s conduct was improper, under either version of the evidence. The expert was improperly permitted to invade the province of the jury and, in effect, conclude that there was negligence when a jury of average intelligence could properly form its own conclusion upon all the evidence.

Expert testimony is permissible where "the conclusions to be drawn from the facts stated * * * depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence” (Dougherty v Milliken, 163 NY 527, 533). The action of the police officer and the placement of his car involved simple matters concerning the operation and parking of one’s car. Members of the jury, as persons of at least average intelligence, are familiar not only with the everyday rules of the road but with the dangers of automobiles operated at high speed. The reasonableness of the officer’s placement of his vehicle under these circumstances did not require resort to that special knowledge of men whose background and expertise permits them to speak with authority (Dougherty v Milliken, supra). While the expert may have had experience in such matters, this fact does not establish the inability or incompetence of the jurors to comprehend the issues, draw a conclusion as to the reasonableness of the action, and to determine fault (or lack thereof) based upon a court’s instructions concerning the applicable statutes (Kulak v Nationwide Ins. Co., 40 NY2d 140, 148). With the facts before the jury they were entirely competent to form a conclusion. In this case it was for the jury to assess and determine all the facts and, after applying the law to the found facts, to then reach a conclusion as to fault just as in any other simple negligence case. These are assessments to be made by the jury and, as this court stated in Kulak (40 NY2d 140, 148, supra), "[sjince those assessments did not 'depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence’, there was no occasion to resort to 'the knowledge of men whose experience or study enables them to speak with authority’ [citations omitted]”. Since it is impossible to determine whether the jury based its verdict on the conclusion of the expert, the order should be reversed and a new trial ordered.

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

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


author: Gabrielli, J.

text:
    In the Matter of Louis F. De Sena, Respondent, v Board of Zoning Appeals of the Incorporated Village of Hempstead, Appellant.
    Submitted April 24, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      Saul Horowitz for appellant.
    I. The Board of Zoning Appeals may consider as a factor in passing upon the application for a variance by petitioner the fact that petitioner created the very condition of which he complains and that the dwelling sought to be erected by petitioner is aesthetically undesirable. (Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Matter of Courtesy Estates v Schermerhorn, 51 AD2d 966; Contino v Incorporated Vil. of Hempstead, 27 NY2d 701.) II. The evidence in the record clearly indicates that petitioner failed to establish that the denial of the variance would result in the infliction of either significant economic hardship or practical difficulty.

      Vincent De Rosa for respondent.
    I. Reliance upon the self-created hardship rule, as promulgated in Contino v Incorporated Vil. of Hempstead (27 NY2d 701) as the basis for the denial of a frontage variance for aesthetic reasons, relating to the design of the proposed dwelling in the absence of a specific ordinance designed to control aesthetics, and in spite of the practical difficulties demonstrated, represents an abuse of discretion and renders the denial of the relief sought arbitrary and capricious. (People v Goodman, 31 NY2d 262; Philanz Oldsmobile v Keating, 51 AD2d 437; Matter of McCormick v Lawrence, 83 Misc 2d 64; Matter of Sarant v Zoning Bd. of Appeals of Town of Oyster Bay, 39 AD2d 711; Matter of Ozolins v Horn, 26 AD2d 555; Matter of Murphy v Kraemer, 16 Misc 2d 374; Matter of 293 North Broadway Corp. v Lange, 282 App Div 1056; Matter of Leone v Yates, 280 App Div 823; Matter of Stadden v Macauley, 12 Misc 2d 297; Matter of Gapinski v Zoning Bd. of Appeals of Town of Cheektowaga, 3 AD2d 976.) II. The decision and judgment of the court in the first proceeding between the litigants is binding upon respondent-appellant and the reviewing court in the second proceeding and must be adhered to in the absence of a reversal by a higher court. (Matter of Wright v County of Monroe, 45 AD2d 932; Parker v Rogerson, 33 AD2d 284, 26 NY2d 964; Carlos v Motor Vehicles Acc. Ind. Corp., 22 AD2d 866; Empire Mut. Ins. Co. v West, 22 AD2d 938; James v Powell, 32 AD2d 517; Flack v Prudential Ins. Co., 42 Misc 2d 512.)
   OPINION OF THE COURT

Gabrielli, J.

Respondent is the owner of a corner lot which measures 100 feet by 47 feet. Since the local zoning ordinances mandate a 50-foot frontage on all streets in the area, he was required to obtain an area variance in order to use this residential property in any reasonable manner. The property was originally part of a larger plot which was purchased in 1970 by a corporation in which respondent has a substantial interest. The corporation divided the plot into three lots, of which respondent’s is one. The other two meet all zoning requirements, and have since been sold to third parties. For the corporation to have divided the property in such a way that all three lots would have met all requirements, it would have been necessary to demolish an existing residence located to one side of what is now the middle lot.

Respondent now seeks to erect a 20-foot-wide residence on his property. Before the Board of Zoning Appeals he emphasized the fact that his property was only three feet short of the required frontage, and that only on one street. He also presented undisputed evidence that there were several other undersized lots upon which residences had been built in the immediate vicinity of his property. Appellant Board of Zoning Appeals denied his request for an area variance on the ground that the proposed structure was "an aesthetic abomination” and that any hardship was self-created by the decision of respondent’s predecessor in title to subdivide the property as it did. Supreme Court sustained the board, but the Appellate Division found this decision to be "arbitrary and an abuse of discretion.” We agree.

That a landowner’s difficulty is in a sense self-created is certainly a factor to be taken into account in considering an application for an area variance, although it is less significant a consideration in such cases than in those involving use variances (2 Anderson, New York Zoning Law and Practice [2d ed], § 18.43). It is not, moreover, the determinative factor, and we have in the past upheld the authority of a board to grant an area variance in situations involving self-created hardships (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309). A finding of self-created hardship normally should not in and of itself justify denial of an application for an area variance (see, generally, Matter of National Merritt v Weist, 41 NY2d 438; Matter of Craig v Zoning Bd. of Appeals of City of Yonkers, 41 NY2d 832; 2 Anderson, New York Zoning Law and Practice [2d ed], § 18.43). The basic inquiry at all times is whether strict application of the ordinance in a given case will serve a valid public purpose which outweighs the injury to the property owner (see Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 455-456).

Here, the public purpose purportedly served by denial of the variance was an aesthetic one. The board concluded that "a dwelling having a width of only 20 feet would not be aesthetically desirable, nor could it as a practical matter be a functional dwelling * * * This type of a home with a bowling alley appearance would * * * tend to depreciate the value of the other dwellings in the area and would adversely affect the aesthetic character of the area. In its efforts to obtain the maximum financial return from this venture, the developer has created an aesthetic abomination. It is the opinion of this Board that such a practice should not be condoned”.

Aesthetic considerations do, of course, constitute a valid public purpose sufficient to justify certain regulation over the use of land (Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483, 489-490; Modjeska Sign Studios v Berle, 43 NY2d 468, 478; 1 Anderson, New York Zoning Law and Practice [2d ed], § 7.16). But when denial of a variance is sought to be justified on aesthetic grounds, the public interest in regulation is not necessarily as strong as in those cases involving threats to the public safety (see, also, Modjeska Sign Studios v Berle, supra), and care must be “taken lest the State "trespass through aesthetics on the human personality” (People v Stover, 12 NY2d 463, 472 [Van Voorhis, J, dissenting]). In the present case, it should be noted that the alleged "aesthetic abomination” is simply a somewhat narrow house, which concededly is a permitted use in the area. It would appear rather incongruous to deny an area variance on the ground that the use to be made of the property is aesthetically displeasing when the use is in fact a permitted use. Were this corner lot a mere three feet wider, respondent would have an absolute right to build the proposed residence.

As it is, however, we need not reach the reasonableness of that determination. Although aesthetic considerations are indeed a valid concern of land use regulations, in this case the Zoning Board of Appeals was without power to deny an area variance on aesthetic grounds. The criteria to be applied by a zoning board must in the first instance be delineated by local law, for such a body may exercise only that authority properly delegated to it (2 Anderson, New York Zoning Law and Practice [2d ed], § 18.62). In the present case, the record is bare of any indication that appellant is authorized to apply aesthetics as a criterion in considering applications for area variances. Absent specific authorization which provides sufficient guidance to prevent complete arbitrariness, a Zoning Board of Appeals may not deny an area variance for aesthetic reasons alone (see, generally, 2 Anderson, New York Zoning Law and Practice [2d ed], § 18.62; see, also, Matter of Tandem Holding Corp. v Board of Zoning Appeals of Town of Hempstead, 43 NY2d 801, 802). The allegedly applicable village ordinance, section 16-23, does not supply the requisite authority or ingredient for a denial of the variance.

Accordingly, the order appealed from should be affirmed, with costs.

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

Order affirmed.


author: Chief Judge Breitel.

text:
    The People of the State of New York, Respondent, v Robert F. Key, Appellant.
    Argued April 26, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      Robert C. Alexander for appellant.
    I. The intermediate appellate court erred in distinguishing the case at bar from those in which demands for supporting depositions under CPL 100.25 have not properly been met. (People v De Feo, 77 Misc 2d 523; People v Hust, 74 Misc 2d 887; People v Zagorsky, 73 Misc 2d 420.) II. The court below erred in reversing the trial court’s dismissal of the simplified information supported by a patently deficient deposition because defendant-appellant’s motion was made during trial and not in writing on notice prior to trial. III. Since jeopardy had attached prior to the dismissal of the information, and, upon reargument, the trial court denied, on such ground, the People’s request for leave to renew proceedings, the case at bar was not properly appeal-able. (United States v Wilson, 420 US 332; United States v Jenkins, 420 US 358; Serfass v United States, 420 US 377; People v Brown, 48 AD2d 95; Downum v United States, 372 US 734.)

      Denis Dillon, District Attorney (Anthony J. Gírese and William C. Donnino of counsel), for respondent.
    I. The double jeopardy clause does not bar the People’s appeal from the intratrial dismissal of the accusatory instrument and defendant’s retrial. (People v Brown, 40 NY2d 381; People v Baker, 39 NY2d 923, 429 US 868; People v Brooks, 42 NY2d 866; People v Singleton, 42 NY2d 466; People v Crimmins, 38 NY2d 407; United States v Wilson, 420 US 332; United States v Jenkins, 420 US 358; Serfass v United States, 420 US 377.) II. The accusatory instrument was improperly dismissed. (People v De Rosa, 42 NY2d 872; People v Prim, 40 NY2d 946; People v Quigley, 37 NY2d 913, 38 NY2d 771; People v Blasenheim, 26 NY2d 711; People v Parks, 41 NY2d 36; People v Singleton, 42 NY2d 466; People v Armlin, 6 NY2d 231; People v Boback, 23 NY2d 189; Matter of Prudhomme v Hults, 27 AD2d 234; People v Blake, 5 NY2d 118.)
   OPINION OF THE COURT

Chief Judge Breitel.

Defendant was charged, in a simplified traffic information, with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law, § 1192). After a jury had been sworn the District Court, on defendant’s motion, dismissed the information for legal insufficiency. On reargument, the court adhered to its original determination. The Appellate Term reversed and reinstated the information agreeing that the information was defective, but holding that the defect was not properly asserted. Defendant appeals.

Three issues are presented. The first is whether the information was, in fact, defective. The second is whether any defect was waived for untimeliness. The final and crucial issue is whether further proceedings against defendant are prohibited by double jeopardy principles.

There should be an affirmance. Although, as held by both courts below, the information was defective, the defect was waived for untimeliness. Moreover, when a dismissal on motion by defendant, even after a jury has been sworn, is based only on the legal insufficiency of the information, retrial is forbidden neither by the double jeopardy clauses of the State and Federal Constitutions nor by the statutory double jeopardy provisions.

On July 24, 1974, in East Rockaway, defendant was found by a police officer lying unconscious on the driver’s side of the front seat of his automobile. He appeared intoxicated, and the police officer brought him to the department’s central testing unit, where he was determined to have a blood alcohol level of .29 of 1%. The Vehicle and Traffic Law prohibits operation of a motor vehicle with a blood alcohol level in excess of .10 of 1% (Vehicle and Traffic Law, § 1192, subd 2).

Defendant was charged with a misdemeanor in a uniform traffic ticket, which meets the CPL requirements for a simplified traffic information (CPL 100.10, subd 2, par [a]). At arraignment, the same day, defendant did not request a supporting deposition, but the People furnished one anyway. Neither the ticket nor the deposition, however alleged that defendant was operating the automobile or that the engine was running.

Defense counsel, however, did not move to dismiss the information until eight months later, when the case was reached for trial. As soon as a jury had been selected and sworn, counsel moved orally to dismiss, apparently having delayed intentionally to permit jeopardy to attach. The People objected, asserting that the motion was untimely. Nevertheless, after denying two other motions to dismiss made by defense counsel, the trial court dismissed the information because of the failure to allege operation of the vehicle. The People moved to reargue the motion, requesting reinstatement of the information or, at least, authorization to obtain a new accusatory instrument (CPL 40.30, subd 4). The court granted reargument, but adhered to its original determination. The court expressed its belief that subsequent prosecution would be barred by the double jeopardy proscription. The Appellate Term reversed, holding the motion to dismiss improperly asserted and finding no bar to reprosecution.

A simplified traffic information, to be sufficient on its face, need only comply with the requirements of the Commissioner of Motor Vehicles; it need not provide on its face reasonable cause to believe defendant committed the offense charged (CPL 100.25, 100.40, subd 2). But if defendant requests a supporting deposition, to which he has a statutory right, it must provide reasonable cause (CPL 100.25, subd 2). The People’s tender of such a deposition voluntarily, rather than waiting for defendant’s request, should not obviate the need for the deposition to provide reasonable cause. In this case, there was no allegation that defendant was operating his automobile or even that the engine was running, an allegation necessary to establish commission of the crime. Hence, as both courts below have held, the information was insufficient.

The People, however, contend that insufficiency of the information was waived by failure to assert it until after trial had begun. CPL 170.30, governing motions to dismiss an information, supports this contention. Prior to an amendment effective September 1, 1974, it provided that "[a] motion pursuant to this section should be made prior to entry of a plea of guilty or commencement of trial” (subd 2). After a trial begins, such a motion could be entertained only "in the interest of justice and for good cause shown” (id.). The statute, as amended, permits such motions "within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment” (L 1974, ch 763, § 3; CPL 255.20). Since the effective date of the amendment was after arraignment of defendant but before trial, it is not entirely clear whether the amendment applies.

In either event, however, the motion was not timely made. Certainly no good cause for the delay was shown, thus foreclosing the motion under the old statute. And, since defendant made no application for an extension of time, the statutory amendment provides no help to defendant. In addition, the motion was neither in writing nor on reasonable notice to the People, as required by statute (CPL 170.45, 210.45, subd 1). Hence, the motion should not have been granted.

Moreover, there should be no question that the defect in this information was, in fact waivable. Even if, despite the CPL provisions, there be some defects in accusatory instruments that may never be waived, the defect in this case is not of that class. Since a simplified traffic information can proceed to trial without any supporting deposition at all, and hence without any facts providing reasonable cause, it is unacceptable that absence of a factual allegation in the deposition is nonwaivable.

The remaining issue involves double jeopardy. Under New York law, if an accusatory instrument is "so radically defective that it would not support a judgment of conviction”, jeopardy never attaches under the instrument, and retrial upon correction of the defect is not barred (People ex rel. Zakrzewski v Mancusi, 22 NY2d 400, 403, quoting Shoener v Pennsylvania, 207 US 188, 195; see, e.g., People v Smith, 266 App Div 57, 61-62; People ex rel. Weiner v Warden, 237 App Div 28, 30-31, app dsmd 261 NY 620; see, generally, 22 CJS Criminal Law, § 246). The original analysis proceeded on formalistic lines: if there had been no possibility of obtaining a valid conviction under the accusatory instrument, defendant was never put in jeopardy, and should be subject to subsequent prosecution (see 22 CJS Criminal Law, § 246).

As the rule has developed in New York, however, reprosecution is permitted whenever a dismissal has been granted on motion by defendant, so long as the dismissal does not constitute an adjudication on the facts going to guilt or innocence. The rule applies even if the dismissal occurs after jeopardy has attached.

Thus reprosecution has been permitted after an accusatory instrument is dismissed for legal insufficiency, even after trial had begun. For instance, in Matter of Bishop v Superior Ct. (14 NY2d 321, remittitur amd 14 NY2d 959, cert den 380 US 909), defendant had been indicted for carnal abuse as a felony, based on a predicate offense that was an essential element of the felony count. After trial had started, the predicate conviction was vacated, resulting in dismissal of the felony count of the indictment. The predicate conviction was reinstated on appeal, however, and this court held that double jeopardy principles did not bar a new trial on the felony count.

People ex rel. North v Skinner (280 App Div 611, affd 305 NY 711) is closely analogous to the instant case. There, after trial had started, defendant moved to dismiss because an obvious error in an affidavit constituted a discrepancy with the information. The information was dismissed, but when defendant sought to bar retrial, it was held that double jeopardy did not prevent reprosecution. The court reasoned that defendant, having sought and received dismissal because of the information’s insufficiency, could not then use double jeopardy principles to prevent a new prosecution.

In fact, until the Supreme Court’s most recent flurry of decisions in the double jeopardy area, this court had held that whenever a trial order of dismissal, made on motion by defendant, was legal, as opposed to factual, in nature, appeal and reprosecution were permissible (People v Sabella, 35 NY2d 158, 164-169, remittitur amd 35 NY2d 853; but cf. People ex rel. Meyer v Warden, 269 NY 426, 429-430). While the Sabella holding was abandoned in People v Brown (40 NY2d 381, 383, cert den 429 US 975, mot for rearg den 42 NY2d 1015) on constraint of Supreme Court cases, Sabella does indicate that under the statutory and constitutional law of this State, reprosecution is permitted after an accusatory instrument had been dismissed at trial for legal insufficiency.

What remains, then is to determine whether the Supreme Court’s most recent excursion into the double jeopardy area requires a result contrary to established New York law. Although it would be presumptuous to attempt a definitive explication of the Supreme Court’s writings, some treatment of the most recent cases is essential.

In 1975, the Supreme Court handed down a trilogy of double jeopardy decisions (United States v Wilson, 420 US 332; United States v Jenkins, 420 US 358; Serfass v United States, 420 US 377). They, particularly the Jenkins opinion, were construed, both by this court and apparently by the author of the Jenkins opinion, to prevent appeal by the People and retrial in any case where an order of dismissal had been made after jeopardy had attached and before "there is available a determination of guilt which without more may be reinstated in the event of a reversal and remand” (People v Brown, 40 NY2d 381, 391, supra; see Lee v United States, 432 US 23, 36-37 [Rehnquist, J., concurring]).

Two subsequent Supreme Court cases, however, have cast doubt on this reading of the trilogy (see Lee v United States, 432 US 23, supra; United States v Martin Linen Supply Co., 430 US 564).

The Martin Linen Supply case involved the status, for double jeopardy purposes, of a judgment of acquittal entered under rule 29 of the Federal Rules of Criminal Procedure. It is therefore of doubtful relevance. The Lee case, on the other hand, is relevant. Defendant moved, just before jeopardy attached, to dismiss the information for legal insufficiency. The trial court reserved decision, and not until after both sides had rested was the motion finally granted (432 US, at pp 25-26). The Supreme Court held that the dismissal did not bar a second trial for substantially the same crime (432 US, at p 34).

The court explained its earlier holding in Jenkins as not barring retrial whenever a trial order of dismissal had been made, but only when the trial proceedings had "terminated 'in the defendant’s favor’ ” (432 US, at p 30, quoting United States v Jenkins, 420 US 358, 365, n 7). It was concluded that a holding that the information had been drawn improperly was not a termination in defendant’s favor. Instead, the court analogized this type of dismissal to a mistrial order made as a result of prosecutorial or judicial error, and concluded that retrial would therefore be permissible (432 US, at pp 30-31; see United States v Dinitz, 424 US 600, 606-612; United States v Jorn, 400 US 470, 485). It had of course been settled sometime before by the Supreme Court that a mistrial resulting from an inadequately drawn accusatory instrument does not bar retrial (Illinois v Somerville, 410 US 458).

In other words, it appears from its latest exposition that the Supreme Court has divided trial orders of dismissal into two classes. In the first class are those that terminate the proceedings in defendant’s favor (see Lee v United States, 432 US 23, 29-31, supra). These dismissals do not permit reprosecution. In the second class, however, are those dismissals that are "functionally indistinguishable from a declaration of mistrial” (id., at p 31). These dismissals do not bar reprosecution, so long as the motion is made by defendant, and the error prompting the motion is not motivated by bad faith or desire to provoke the motion (id., at pp 33-34).

In candor, it bears mention that the trial court in this case, unlike its counterpart in Lee, believed that after the dismissal retrial would not be permissible. Thus, the dismissal was not "in comtemplation of’ a second prosecution. Nevertheless, a Trial Judge’s interpretations of the double jeopardy clause should not determine whether appeal and retrial are permissible. It is the nature of the order, and not the Trial Judge’s views on double jeopardy, that should govern.

Thus, following the Supreme Court’s latest explanation of its earlier double jeopardy holdings, it appears unnecessary to abandon traditional New York Law in this area. Especially in light of the developments in the Supreme Court, abandonment is unwarranted. Defendant moved for dismissal and there was no adjudication on the facts addressed directly or indirectly to proof of his innocence or guilt, but only a determination that the pleading was defective. Under these circumstances, having himself requested the dismissal, defendant is in no position to claim the protection of the double jeopardy clause. Hence, retrial should be permitted.

One final comment is merited. If trial courts in cases like this one were, whenever practicable, only to reserve decision until after trial has been completed and determinations of fact made, much difficulty would be avoided. Of course, if the motion had been made and decided, as it should have been, before trial, no problem would have arisen. But, once trial has started, decision on a belated motion might well be delayed until after jury verdict or decision on the facts. If defendant were to be acquitted, that would be the end of the matter; if convicted, appeal of the ruling, and, if appropriate, retrial or reinstatement of the verdict or decision would be permissible on any view of double jeopardy doctrine. It is the premature dismissal that has caused the trouble in this case, and that should be avoidable in most other cases (People v Brown, 40 NY2d 381, 394, supra).

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

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

Order affirmed.

      The holding in People v Brown (40 NY2d 381, supra) may be correct on some views of the matter since there the defendant’s motion to dismiss was made on the basis that the People had, at the close of their case, failed to prove a prima facie case, concededly on an issue of law (id., at pp 383-384). Hence, apparently on this court’s view, the determination required consideration of the facts and the proceeding was "terminated 'in the defendant’s favor’ ” (Lee v United States, 432 US 23, 30, supra, quoting United States v Jenkins, 420 US 358, 365, n 7). Such a view finds' support in a recent summary reversal by the Supreme Court holding that a dismissal for failure to state an offense, after consideration by the trial court of an agreed statement of facts, bars reprosecution (Finch v United States, 433 US 676). On the other hand, although the holding may be correct, the reasoning in the Brown opinion by this court, because it relied on the Jenkins case (supra), is affected to whatever degree the later opinion in the Lee case affected the reasoning in the Jenkins case.
      After this opinion had been written, the Supreme Court, in United States v Scott (437 US 82), explicitly overruled its prior holding in United States v Jenkins (420 US 358, supra). But see also the four other double jeopardy decisions handed down at the same time: Burks v United States (437 US 1), Greene v Massey (437 US 19), Crist v Bretz (437 US 28), and Sanabria v United States (437 US 54).


author: Wachtler, J. Fuchsberg, J.

text:
    The People of the State of New York, Appellant, v John Sciacca, Respondent.
    Argued May 3, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      John J. Santucci, District Attorney (Eileen Sullivan of counsel), for appellant.
    The entry of the tax investigators into the Greenpoint Avenue garage to effect seizure of the van was proper. (Coolidge v New Hampshire, 403 US 443; Terry v Ohio, 392 US 1; Johnson v United States, 333 US 10; Marron v United States, 275 US 192; Boyd v United States, 116 US 616; Steele v United States No. 1, 267 US 498; People v Nieves, 36 NY2d 396; People v Dumper, 28 NY2d 296; People v Sprague, 47 AD2d 510; People v Hansen, 38 NY2d 17.)

      Robert E. Sparrow and Stephen J. Singer for respondent.
    I. The tangible evidence should have been suppressed. (McDonald v United States, 335 US 451; Johnson v United States, 333 US 10; People v Dentine, 27 AD2d 139, 21 NY2d 700; United States v Kaye, 432 F2d 647; United States v Broomfield, 336 F Supp 179; Coolidge v New Hampshire, 403 US 443; Sibron v New York, 392 US 40; Rios v United States, 364 US 253; People v Butterly, 25 NY2d 159; Chimel v California, 395 US 752; People v Ernest E., 38 AD2d 394, 30 NY2d 884.) II. Defendant was denied the effective assistance of counsel. (Sellers v United States, 271 F2d 475; People v O’Neil, 109 NY 251; People v Vasquez, 47 AD2d 864; People v Setaro, 44 AD2d 847; People v Ramsey, 40 AD2d 837.) III. Numerous errors committed by the court and prosecutor cumulatively constitute reversible error.

      Louis J. Lefkowitz, Attorney-General (Jules E. Orenstein and Samuel A. Hirshowitz of counsel),
    in his statutory capacity under section 71 of the Executive Law. Searches under section 474 of the New York State Tax Law, as construed in People v Rizzo (40 NY2d 425) need not always or generally be conducted pursuant to a warrant for the search of particular premises. (United States v Biswell, 406 US 311; People v Farenga, 81 Misc 2d 287, 52 AD2d 587, 42 NY2d 1092.)
   OPINION OF THE COURT

Wachtler, J.

The People appeal from an order of the Appellate Division which reversed a judgment convicting defendant of the felony of unlawfully possessing and transporting untaxed cigarettes. The court below suppressed some 3,000 cartons of untaxed cigarettes that the tax investigators had discovered and seized from defendant’s van. It was here that the investigators had acted improperly when, in the dead of night, they broke into the locked garage where the van was parked. The lone dissenter would have affirmed, reasoning that the instant search and seizure was legitimate under section 474 of the Tax Law and its interpretation in People v Rizzo (40 NY2d 425). In our view, the determination of the majority below was correct.

The New York State Tax Enforcement Bureau received confidential information to the effect that defendant, John Sciacca, was involved in the smuggling of untaxed cigarettes into New York in violation of article 20 of the Tax Law. The informant alleged that the defendant was using a green Dodge van license number 4205KA to transport untaxed cigarettes into this State. A check of official records and communications revealed that defendant had three prior arrests and one conviction to date for cigarette tax violations and that he had been stopped recently by the North Carolina State Police who observed in his green van several thousand cartons of untaxed cigarettes.

Based on this information, the Tax Enforcement Bureau began watching for the defendant’s return. When they sighted the green van they followed it to an address in Brooklyn where the driver, who matched the defendant’s description, was observed removing a box the size and shape of a one-half case of cigarettes from the rear of the van and giving it to an unknown male.

Some 12 days later the tax investigators received further confidential information that defendant planned to drive to North Carolina that day and would return in the evening of September 24, 1974 with a large load of contraband cigarettes. The surveillance team saw defendant hand the driver some papers which appeared to be cigarette order forms and also observed defendant remove three cartons of Kent cigarettes from under the driver’s seat of the truck. The vehicle was then followed to the New Jersey Turnpike where it was seen heading south.

On the strength of this information a search warrant authorizing the search of defendant’s green van was obtained. The tax investigators stationed themselves near the garage where defendant parked his van and waited for the defendant to return. At 12:50 a.m. on the 25th, the van driven by an unknown male double parked outside the garage. The defendant who arrived in a separate car then entered the van and backed it into the garage. The two men emerged a few minutes later, closed and secured the overhead door, and departed.

The tax investigators continued their observation of the garage which was a one-story brick building rented by a sewer contracting company. At 4:00 a.m., the tax investigators moved a loose panel on the door aside and crawled into the garage. They proceeded to defendant’s van and found 3,060 cartons of untaxed cigarettes inside. The investigators remained in the building until approximately 6:00 a.m. when the owner of the sewer contracting company arrived. The investigators identified themselves and showed the search warrant to the lessor of the garage. The cigarettes were subsequently removed and inventoried by the police property clerk.

A motion to suppress was denied after a hearing and, after trial, the defendant was convicted by a jury. On appeal the Second Department reversed on the law concluding that the unauthorized entry into the garage constituted an unreasonable search and seizure and that the instant search was not lawful under the Tax Law or on the theory of inevitable discovery. One Justice dissented on the ground that section 474 of the Tax Law authorizes entry into premises when there is probable cause to believe that the regulated activity is being conducted there. Alternatively, the dissent relied on the inevitability of the discovery of the untaxed cigarettes.

The first issue we must consider is whether the search warrant was properly and lawfully executed under the circumstances. In our view the tax investigators exceeded the authority granted in the warrant. By its terms the warrant authorized the search of "a green Dodge Van bearing New York plate #4205KA * * * [for] * * * untaxed cigarettes and bills or records relating thereto.” Nothing in the warrant authorized the entry into the garage in order to execute the warrant.

It is clear that a warrant to search a building does not include authority to search vehicles at the premises (People v Hansen, 38 NY2d 17; People v Dumper, 28 NY2d 296). The converse is also true. Authority to search a vehicle does not include authority to enter private premises to effect a search of a vehicle within those premises. The Constitution (NY Const, art I, § 12; US Const, 4th Arndt) requires that a warrant particularly describe the place to be searched and the Criminal Procedure Law provides for the issuance of warrants to search persons, premises or vehicles (CPL 690.15). The fact that premises are generally fixed while persons and vehicles are moveable presents a problem to officers executing search warrants. However, the constitutional mandate of particularity of the place to be searched may not be circumvented by implication as the People urge. We cannot accept the argument that the entry into the private garage was a permissible incident of the right to search pursuant to a warrant. The warrant here authorized the search of a particular van and nothing else. The garage had a structual and functional existence distinct from defendant’s van which should have been recognized by the investigators.

That is not to say that a vehicle may never be searched while on private property. As we recently decided in People v Farenga (42 NY2d 1092), a vehicle may be searched in the driveway when it does not constitute an invasion of an area where a justifiable expectation of privacy exists. Similarly in United States v Taylor (428 F2d 515) and Peeples v United States (341 F2d 60, cert den 380 US 988) searches of a truck in defendant’s driveway and of defendant’s exposed carport, respectively, were deemed valid. Nor does the holding in United States v Scher (305 US 251) compel a different result. There, prior to any search the defendant admitted hauling bootleg liquor to an investigator who had followed him into an open garage. The garage in the case at bar was unoccupied and locked and defendant was presumably home in bed when the search occurred.

It should be noted that the investigators here were aware of defendant’s use of the garage to secure his vehicle and they could have sought authority to enter the garage. They failed to do so and therefore the unlawful entry into the private garage rendered the subsequent search of the van illegal.

Nor may this entry be justified on the theory of exigency. There was nothing inherent in the situation confronting the investigators which necessitated immediate action. It was the dead of night, the vehicle was in an unoccupied, locked garage which had only one exit and was surrounded by tax investigators ready to prevent the van or its illicit cargo from eluding their grasp.

The People urge that the investigators were authorized to forcibly enter the garage since there was probable cause to believe that the regulated activity (i.e., cigarette storage and sales) was occurring on the premises. This argument is most cogently presented by the dissent below which relies on language in Rizzo (40 NY2d 425, supra) to support the validity of the instant search. Pointing to the second of three common situations likely to involve administrative inspection, the dissent contends that where there is probable cause to believe that the regulated activity is being conducted at that location the agency "may lawfully enter the premises and examine the records and inventory pursuant to their statutory power” (quoting Rizzo, supra, at p 429).

The language quoted should not be construed as sanctioning illegal action by administrative inspectors. We cannot state it more emphatically than we did in Rizzo: "Nevertheless, the mere existence of a valid regulatory scheme of itself cannot derogate constitutional safeguards against unreasonable searches and seizures” (id., at p 428). The actions of the investigators in this case were unreasonable by any standard. The agents had no evidence whatever which would indicate that the garage was a premises where the controlled activity was taking place. The garage was completely distinct, indeed incidental, to any illegal activity.

Regulatory schemes are necessary to insure compliance with health, safety and even revenue codes, however they are not so necessary as to override or bypass constitutional mandates. To be sure, an administrative inspector can demand entry into locked areas which he reasonably believes contain regulated activity (see United States v Biswell, 406 US 311). This does not mean that he has the authority to break and enter. As the United States Supreme Court noted in Colonnade Corp. v United States (397 US 72, 77) our traditions are strongly opposed to using force without definite authority to break into a locked premises. In the instant case there was no authority either in the statute or the warrant to enter forcibly, consequently the search must be voided.

Rather than being analogous to entry permissible to execute an arrest warrant as the People urge, the situation at bar is more akin to the analysis underlying the plain view doctrine, to wit, only when the police are lawfully in a place may the evidence in plain view be utilized. In the administrative context, a prerequisite to the examination of records and inventory is that the inspectors be lawfully on the premises. The determination of whether or not they are lawfully there must be considered in light of conventional search and seizure analysis involving the justifiable expectation of privacy. Clearly, in this case Sciacca had a considerable expectation of privacy in his van which was placed in a completely enclosed, locked garage. This was not an area that could be considered public or open and notorious as in Farenga (42 NY2d 1092, supra); Taylor (428 F2d 515, supra); and Peeples (431 F2d 60, supra).

Finally, we need only consider the claim of inevitable discovery briefly. The theory of inevitable discovery is essentially a safety valve for the exclusionary rule to be used when the constitutional violation is of technical dimension and should not be used to countenance the breaking into a locked garage by administrative investigators.

Accordingly, the order appealed should be affirmed.

Fuchsberg, J.

(concurring). Although I did not subscribe to the court’s rationale in the Rizzo case (see People v Rizzo, 40 NY2d 425, 430 [concurring opn]), I would ordinarily follow it in the present case on constraint of the doctrine of stare decisis. Rizzo, as I believe the dissent of Mr. Justice J. Irwin Shapiro at the Appellate Division persuasively demonstrates, mandates that the search and seizure under scrutiny here be sustained.

However, the majority having today limited the holding in Rizzo, I am no longer so constrained (People v Perez, 42 NY2d 971, 972 [Jasen, J., concurring]). I therefore cast my vote for affirmance on the ground that section 474 of the Tax Law may not be read to authorize "entry and search of a residence, without consent” (People v Rizzo, 47 AD2d 468, 471, affd on other grounds 40 NY2d 425).

Chief Judge Breitel and Judges Jones and Cooke concur with Judge Wachtler; Judge Fuchsberg concurs in a separate opinion; Judges Jasen and Gabrielli, dissent and vote to reverse on the dissenting memorandum by Mr. Justice J. Irwin Shapiro at the Appellate Division (57 AD2d, at pp 848-850).

Order affirmed.