author: Titone, J.

text:
    The People of the State of New York, Appellant, v Edwin Cortes, Respondent. The People of the State of New York, Appellant, v Santo Zenon, Respondent.
    Argued September 10,1992;
    decided October 20, 1992

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Seth M. Lieberman, Jay M. Cohen and Leonard Joblove of counsel), for appellant in the first above-entitled action.
    The time chargeable to the People pursuant to CPL 30.30 does not exceed six months. (People v McKenna, 76 NY2d 59; People v Sinistaj, 67 NY2d 236; People v Correa, 77 NY2d 930; People v Osgood, 52 NY2d 37; People v Kendzia, 64 NY2d 331; People v Anderson, 66 NY2d 529; People v Brothers, 50 NY2d 413; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498; People v Greene, 134 AD2d 612; People v Conrad, 93 Misc 2d 655, 44 NY2d 863.)

      Solomon Rosengarten, New York City, for respondent in the first above-entitled action.
    This Court should affirm the judgment of the Court below affirming the trial court’s dismissal of the indictment. (People v Lomax, 50 NY2d 351; People v Osgood, 80 AD2d 623; People v Haynes, 80 AD2d 620; People v Liotta, 79 NY2d 841; People v Greene, 134 AD2d 612; Harris v Kuhlman, 601 F Supp 987; People v Scott, 56 AD2d 667; People v Sylvester, 29 AD2d 985; People v Santos, 68 NY2d 859; People v Berkowitz, 50 NY2d 333.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Seth M. Lieberman, Jay M. Cohen and Leonard Joblove of counsel), for appellant in the second above-entitled action.
    The time chargeable to the People pursuant to CPL 30.30 does not exceed six months. (People v McKenna, 76 NY2d 59; People v Sinistaj, 67 NY2d 236; People v Correa, 77 NY2d 930; People v Osgood, 52 NY2d 37; People v Anderson, 66 NY2d 529; People v Brothers, 50 NY2d 413; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498; People v Conrad, 93 Misc 2d 655, 44 NY2d 863; People v Worley, 66 NY2d 523; People v Liotta, 79 NY2d 841.)

      Carol Santangelo, New York City, and Philip L. Weinstein for respondent in the second above-entitled action.
    The trial court correctly found that the prosecution was not ready to proceed to trial within six months of the date that it commenced action against defendant, notwithstanding the People’s claim that they are responsible for only 43 of the 753 days that elapsed from the filing of the original indictment until the dismissal of the case. (CPL 30.30.) (People v Berkowitz, 50 NY2d 333; People v Jones, 105 AD2d 179; People v Anderson, 66 NY2d 529; People v Cade, 140 AD2d 99, 74 NY2d 410; People v Correa, 77 NY2d 930; People v Liotta, 79 NY2d 841; People v Pappas, 128 AD2d 556; People v Seabrook, 126 AD2d 583; People v Gaggi, 104 AD2d 422, 65 NY2d 636; People v Meierdiercks, 68 NY2d 613.)
   OPINION OF THE COURT

Titone, J.

In each of these cases, more than two years elapsed between the filing of the initial indictment and the date the charges were dismissed because of the prosecution’s failure to satisfy the readiness prescriptions of CPL 30.30. The People have appealed from the Appellate Division orders affirming these dismissals. Their appeals raise several novel issues, including the People’s accountability for delays resulting from the failure of the County Law article 18-B Panel to promptly supply an attorney to represent defendant Cortes and for a delay that resulted from the dismissal of the original indictments on a ground that was subsequently proven erroneous. The People’s appeals also raise questions concerning the excludability of certain periods of prearraignment delay, as well as other periods when the proceedings were postponed without defendants’ express consent. Having considered all of the parties’ arguments, we conclude that the People’s time to prosecute both defendants under CPL 30.30 was exceeded and that, accordingly, the indictments were properly dismissed.

L

Defendants Edwin Cortes and Santo Zenon were jointly charged with first degree criminal sale of a controlled substance and several other related offenses, all arising out of an incident in which the two men had allegedly sold more than four ounces of cocaine to an undercover officer. Cortes was arrested and, on June 18, 1987, was arraigned on a felony complaint. Both men were subsequently charged in an indictment filed on July 10, 1987. Cortes was arraigned on that indictment on July 21st, and Zenon was arraigned six days later on July 27th. At that point, Zenon was represented by an attorney from the Legal Aid Society. Cortes, whose retained counsel did not appear, was temporarily represented by an attorney assigned by the court.

On the next calendar date, September 9, 1987, Zenon was present without counsel, but neither Cortes, who previously had posted bail, nor his attorney appeared. The case was adjourned to September 29, 1987, at which time the People declared themselves ready to proceed. Since Cortes was still absent, the court ordered that a bench warrant be issued. However, Cortes was not actually returned until February 23, 1988, when he was involuntarily brought into court on the warrant. At that time, Cortes advised the court that he could no longer afford his retained attorney and that he would need assigned counsel to represent him. The case was adjourned until March 1, 1988.

Two more adjournments ensued, the first to give Cortes’s new attorney additional time to prepare and the second to enable the People to respond to Cortes’s new attorney’s discovery motion. On May 5, 1988, the case was again adjourned at both counsels’ request, and Cortes’s counsel asked to be relieved. That request was granted at the next calendar call on May 31, 1988. However, despite several additional adjournments and the court’s submission of "a requisition” to the 18-B Panel, no counsel appeared for Cortes until the October 19, 1988 calendar call.

At that time, the court examined the Grand Jury minutes and discovered that the indictment had been obtained in violation of the Appellate Division’s recent decision in People v Cade (140 AD2d 99 [Aug. 29, 1988], adhered to on rearg 145 AD2d 565, subsequently revd 74 NY2d 410). The court immediately dismissed the indictment against both defendants and directed the People to file a written motion for permission to resubmit (see, CPL 210.20 [4]). The suggested motion was made on November 17, 1988, and on December 6, 1988 the court granted the motion. A new indictment was not filed, however, until January 17, 1989. Following several more adjournments, Zenon was arraigned on February 16, 1989 and Cortes was arraigned on March 9, 1989. The People announced their readiness to proceed on the new indictment on March 14, 1989.

On the same day that the People’s readiness announcement was made, Cortes’s attorney failed to appear, and the court ordered new counsel to be assigned. A similar direction was made on the next court date, April 17, 1989, when Cortes’s former attorney appeared and formally asked to be relieved. Nonetheless, three more calendar calls ensued during which Cortes had to appear without counsel. On one occasion, the court stated that the 18-B Panel was having difficulty obtaining an attorney who was willing to take an A-l felony case. On another occasion, the court noted that it was planning to involve the Administrative Judge in the effort to obtain counsel for Cortes. Finally, on July 19, 1989, Cortes appeared with an assigned attorney.

On September 14, 1989, after two additional adjournments, Cortes’s attorney moved to dismiss the indictment against his client on the ground that the requirements of CPL 30.30 had not been satisfied. A similar motion had already been made by Zenon’s attorney on March 30, 1989.

The trial court granted both motions, holding that, in both cases, the prosecution had far exceeded the time in which it was required to become ready. The Appellate Division affirmed the trial court’s dismissal decision, although its computations and legal analysis were different in several respects (People v Zenon, 175 AD2d 193; People v Cortes, 175 AD2d 171). The Appellate Division held that the People should be charged with the 85 days between July 26, 1988 and October 19, 1988, when defendant Cortes was without counsel due to the failure of the 18-B Panel, a failure that was characterized as being "attributable to the fault of the court” (175 AD2d, at 194, supra; 175 AD2d, at 172, supra) The Appellate Division also charged the People with the 90-day period between the October 19, 1988 dismissal of the first indictment and the January 17, 1989 filing of the second, holding that the People could not have been ready during this period and, further, that the delay between the dismissal and the re-presentment was "unreasonable.” These major periods of delay, when added to the several shorter periods of pre- and postarraignment delay, brought the time chargeable to the People to well over the 183 days they had to become ready in Cortes and the 184 days they had to become ready in Zenon The People now appeal from the Appellate Division’s orders, arguing that many of its assumptions about the time chargeable to the People were erroneous. We will consider each of their separate claims seriatim.

IL

In felony cases such as this one, CPL 30.30 requires the People to be ready for trial within six months of the commencement of the criminal action (CPL 30.30 [1] [a]). Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People’s declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion. Since there were extensive pre- and postreadiness delays in these defendants’ prosecutions, an analysis of the causes of the delay and the availability of the statutory exclusions is crucial.

The People’s first claim concerns the availability and proper application of the exclusion for periods when the defendant was without counsel "through no fault of the court” (CPL 30.30 [4] [f]). The People argue that the Appellate Division erred in charging them with the periods of delay when defendant Cortes was without counsel because the underlying problem — i.e., the failure of the 18-B Panel to produce an attorney for him — was not the "fault of the court.” The People’s argument, however, cannot be maintained in light of the close relationship between the courts and the 18-B system.

In our State, the system for assigning counsel to individuals who cannot afford to pay is derived from article 18-B of the County Law. Section 722 of that article requires counties to provide for the defense of indigents. Under section 722 (3), counties may fulfill this responsibility through "a plan of a [local] bar association * * * whereby the services of private counsel are rotated and coordinated by an administrator.” Compensation and reimbursement are to be fixed by the court within certain statutorily prescribed limits (County Law § 722-b).

Under the rules of the Second Department, in which these prosecutions were commenced, the Second and Eleventh Judicial Districts are required to maintain an Assigned Counsel Plan formulated by an Advisory Committee. The Committee consists of an Administrative Judge of the Supreme Court (or designee), an Administrative Judge of the Criminal Court (or designee) and several nonjudicial members selected by the Presiding Justice of the Second Department (22 NYCRR 678.3, 678.4 [a]; see also, 22 NYCRR part 612 [1st Dept rules]). This Committee is responsible for establishing not only the basic operating plan of the 18-B Panel, but also the procedures for evaluating, training and disciplining attorneys, as well as the procedures for appointing and reappointing the attorneys who will serve (22 NYCRR 678.5).

In addition to its involvement through the Advisory Committee, the judiciary is directly responsible for many important aspects of the 18-B Panel’s operation. The Appellate Division itself designates the attorneys who will serve on the Panel for each county within its jurisdiction, and the Presiding Justice makes the final determination as to whether a particular attorney should be removed or reinstated (22 NYCRR 678.8, 678.10 [c]). Additionally, the Chief Administrator of the Courts is responsible for monitoring the operations of the Plan, and the Appellate Division itself has the duty to determine whether changes in the Plan’s procedures are needed to improve the system’s performance (22 NYCRR 678.11, 678.12).

It is thus apparent that the judiciary is intimately involved in both the design and the operation of the 18-B Panel. In view of this pervasive supervisory role, it is both fair and reasonable to hold the courts accountable for deficiencies in the system such as occurred in this case, where the 18-B Panel failed to perform its basic mission of furnishing counsel to a defendant who could not afford to retain an attorney on his own. Under this analysis, the lengthy delays that occurred because of defendant Cortes’s lack of representation were unquestionably attributable to the "fault of the court,” and, consequently, the exclusion provided by CPL 30.30 (4) (f) is unavailable.

That conclusion, however, does not resolve the ultimate question of whether the delays associated with the 18-B Panel’s failure should be "charged” to the People for purposes of computing their compliance with CPL 30.30’s strictures. The exclusions set forth in CPL 30.30 (4) are ordinarily invoked to excuse delays attributable to the People’s unreadiness. In this case, however, the two periods when Cortes was without counsel because of the 18-B Panel’s default both occurred after the People had declared themselves ready for trial. Under these circumstances, the analysis suggested by People v Giordano (56 NY2d 524) and People v Anderson (66 NY2d 529) must be employed.

In People v Giordano (supra, at 525), this Court reiterated the principle it had earlier set forth in People v Brothers (50 NY2d 413) and held that once the People announce their readiness on the record, their obligations under CPL 30.30 are satisfied. Under Giordano, subsequent delays resulting from such circumstances as Court congestion provide "no basis for [CPL 30.30] dismissal” (56 NY2d, at 525, supra).

In People v Anderson (supra, at 535), the Court refined this principle, noting that Giordano did not mean that "no delay on the part of the People * * * after announcement of readiness is to be counted against them.” As the Court stated in Anderson, some postreadiness may be chargeable to the People, but only when the cause of the delay directly implicates the People’s ability to proceed with trial (66 NY2d, at 536, supra).

In this case, the People had declared themselves ready on September 29, 1987, thereby signifying that they had done everything they could up to that point to move the case to trial. The impediment that caused the delay during the disputed periods — Cortes’s lack of representation — did not affect the People’s ability to present their own case and, consequently, did not affect their "readiness” as that term is used in CPL 30.30 analysis. Thus, the periods of postreadiness delay attributable to Cortes’s lack of representation were simply not cognizable under CPL 30.30, and the Appellate Division’s decision to include them in the time chargeable to the People was erroneous.

Ill

The second major source of controversy in this appeal is the 90-day period between October 19, 1988, the date the first indictment was dismissed for a violation of the then-existing rule announced in People v Cade (140 AD2d 99, supra), and January 17, 1989, the date that the second indictment against these two defendants was filed. Both courts below charged this entire period to the People, and we find no reason to disturb their holdings.

Initially, we note that, unlike the postreadiness delays attributable to Cortes’s lack of representation, this 90-day period of delay did implicate the People’s CPL 30.30 obligations, since the absence of a valid indictment during this period was a circumstance that directly impaired their ability to proceed to trial (see, People v Colon, 59 NY2d 921; People v Sturgis, 38 NY2d 625). Thus, the only question is whether the People’s unreadiness during this period may be excused under the terms of the statute.

The People first argue that the entire 90-day period during which there was no extant indictment should have been excluded as an "exceptional circumstance” under CPL 30.30 (3) (b) and (4) (g) because, as was established by this Court’s subsequent decision in People v Cade (74 NY2d 410, supra), the dismissal of the indictment was erroneous. Alternatively, they contend that since the People could have successfully appealed from the order of dismissal, the entire period should be excluded under CPL 30.30 (4) (a) as resulting from "other proceedings concerning the defendant” that were, in the People’s words, "the functional equivalent of a successful People’s appeal.”

The People’s contention that the 90-day period should be excluded as an "exceptional circumstance” is unpersuasive. First, the court’s decision to dismiss the indictment was not erroneous at the time it was made. To the contrary, the trial court was bound to follow existing precedent and was, accordingly, acting properly when it dismissed the indictment under the authority of the Appellate Division’s decision in People v Cade (140 AD2d 99, supra).

Second, even if the trial court’s ruling had been legally improper, an erroneous dismissal is simply not the type of "exceptional circumstance” that the Legislature had in mind when it enacted CPL 30.30 (3) (b) and (4) (g). Legal rulings are routine events in criminal trials. The fact that a particular ruling may be erroneous does not by itself transform that ruling into an "exceptional circumstance.” Moreover, the Legislature has already provided the People with adequate protections in the event of an erroneous dismissal. When an indictment has been dismissed, the People have the right to take an immediate appeal and if they elect that course, the court must exclude from the time in which the People must be ready a "reasonable” time for the appeal’s completion (see, CPL 30.30 [4] [a]; 450.20 [1]). In view of these express provisions, it would be anomalous to hold that erroneous dismissals may also be treated as "exceptional circumstances” under CPL 30.30 (3) (b) and (4) (g).

For similar reasons, we reject the People’s alternative argument that the 90-day period before a new indictment was obtained should be excused under CPL 30.30 (4) (a) as the "functional equivalent of a successful appeal.” In fact, there is no "functional equivalence” between an appeal and the procedure utilized here, i.e., a formal motion for permission to resubmit followed by a resubmission to a Grand Jury and the filing of a new indictment. CPL 30.30 (4) (a) specifically lists appeals and pretrial motions as separate categories of "proceedings concerning the defendant” that may lead to excusable delays. Moreover, appeals and resubmission proceedings have different purposes, are characterized by entirely different procedures and are governed by wholly distinct time constraints. The most significant difference is, of course, that, in contrast to an appeal, the process of resubmitting and obtaining a new indictment is largely within the People’s control. Having opted to rely on this process, the People cannot now claim the benefit of the lengthier period of excusable delay that might have been permitted had they opted instead for an appeal.

Finally, we decline to follow the People’s request to exclude at least some of the 90-day period between indictments as a "reasonable time” for motion practice (see, CPL 30.30 [4] [a]). Since both courts below held the entire 90-day period to be unreasonable, any effort by us to define a lesser "reasonable” period for motion practice would require us to engage in fact finding — an activity that is outside the scope of our powers.

IV.

The third major block of disputed time involves the periods that preceded Cortes’s and Zenon’s two arraignments. The People do not contest their accountability for the 22-day period between the filing of the felony complaint in Cortes on June 17, 1987 and the filing of the indictment on July 10, 1987, but they do contest their accountability for the periods between the filing of the two indictments and the defendants’ arraignments on those indictments.

The question of prearraignment delays was recently addressed in People v Correa (77 NY2d 930), in which we established the principle that the People are not excused from readying their case merely because the defendant has not yet been arraigned. As we stated in Correa, "[d]clays between indictment and arraignment, like other court congestion, do not prevent the People from being ready for trial” (id., at 931).

It is true, as the People contend, that Correa did not go so far as to hold that prearraignment delays are always automatically chargeable to the People. Some prearraignment delays may be excused if they are caused by events recognized as exclusions under CPL 30.30 (4). In the Cortes case, however, the People did not claim any specific CPL 30.30 (4) ground for exclusion in response to the dismissal motion. Instead, they argued only that both periods of delay between the filing of the two indictments and the arraignments on those indictments should be excluded, in their entireties, as "reasonable time[s] to arrange for defendant’s arraignment.” That is precisely the argument we rejected in Correa. Accordingly, since the People failed to satisfy their burden of proving their entitlement to an exclusion during this period preceding their readiness declaration, they are fully chargeable with the 84 days of prearraignment delay that occurred in People v Cortes (see, People v Santos, 68 NY2d 859; People v Berkowitz, 50 NY2d 333).

In the Zenon case, the People are chargeable with most of the 47 days of prearraignment delay. The 17-day period between the filing of the first indictment (July 10, 1987) and the arraignment on that indictment (July 27, 1987) is chargeable to the People because, in addition to arguing that it represented a "reasonable time” to arrange for an arraignment, the only explanation they offered for that period was that it should be excluded as a "consent” adjournment because defense counsel did not object to the delay. However, as we recently held in People v Liotta (79 NY2d 841, 843), a mere failure by defense counsel to object to an adjournment does not constitute "consent” within the meaning of CPL 30.30 (4) (b).

Of the 30 days that elapsed between the filing of the second indictment (January 17, 1989) in Zenon and the arraignment on that indictment (February 16, 1989), all but 8 days are chargeable to the People, since the People made essentially the same faulty arguments with respect to this period as they did in connection with the delay that preceded the first arraignment. The period between February 8, 1989 and the February 16, 1989 arraignment should be excluded, however, because the court and the prosecutor were prepared to proceed on the 8th but defense counsel requested a later date due to his own scheduling problems. Thus, this part of the prearraignment delay was, in actuality, consented to by the defense (see, CPL 30.30 [4] [b]).

Finally, we reject the People’s contention that the delays between the filing of the second indictments and defendants’ separate arraignments on those indictments should not be charged to them under People v Anderson (supra) because they were, in fact, "ready” within the meaning of CPL 30.30 as soon as the second indictments were filed. The People’s contention rests on the erroneous assumption that having previously announced their readiness to try the first indictments, they were not required to reannounce their readiness for trial upon the filing of the second. While the People are generally not required to declare their readiness repeatedly throughout the pendency of a criminal action, the dismissal of an indictment and the filing of a new one represents such a substantial break in the proceeding that a new communication of readiness is needed to eliminate guesswork and post hoc rationalizations (see, People v Kendzia, 64 NY2d 331; People v Brothers, 50 NY2d 413, supra; People v Hamilton, 46 NY2d 932). Without a new declaration of readiness, the trial court and the defense would be left to speculate about the People’s state of preparedness on the new indictment.

V.

The last large blocks of time in dispute involve two adjournments, both of which primarily affected defendant Cortes: one resulting in a 44-day delay and the other resulting in a 70-day delay. The 70-day delay occurred between Cortes’s first arraignment on July 21, 1987 and the People’s readiness declaration on September 29, 1987. The 44-day delay occurred between August 1, 1989, when Cortes appeared with counsel but the case was nevertheless adjourned, and September 14, 1989, when Cortes moved for a CPL 30.30 dismissal.

With regard to the latter delay, we agree with the Appellate Division’s conclusion that it should be included within the People’s unready time, although we reach our own conclusion by a somewhat different route. The People argued before the trial court that the delay between August 1 and September 14, 1989 was occasioned by Cortes’s counsel’s expressed intention to make a CPL 30.30 motion by the latter date. However, no contemporaneous record was made of the reason for the August 1, 1989 adjournment and, consequently, the trial court could not determine on the subsequent CPL 30.30 motion to whom the adjournment should be charged. Although the defendant ordinarily has the burden of showing that any postreadiness adjournments occurred under circumstances that should be charged to the People (see, People v Anderson, 66 NY2d, at 541, supra), we have recently held that it is the People’s burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged (People v Liotta, supra, at 843; see also, People v Berkowitz, supra). Since the People failed to satisfy this primary obligation, they must assume responsibility for the 44-day delay that followed the August 1,1989 adjournment.

The 70-day period between Cortes’s first arraignment on June 18, 1987 and the People’s first readiness declaration on September 29,1987 is also chargeable to the People because of their failure to meet another burden of proof that the case law construing CPL 30.30 imposes. Inasmuch as this entire period occurred before the People had declared themselves ready, the prosecution had the burden of establishing their entitlement to have the delay excluded from their readiness time (see, e.g., People v Santos, 68 NY2d 859, supra). The only argument the People made in the trial court with respect to this period was that these 70 days, like the remainder of the time between Cortes’s arraignment and their readiness declaration, were excludable under CPL 30.30 (4) (b) because there were adjournments to which the defense had consented by failing affirmatively to object. As previously noted, however, defense counsel’s silence is not sufficient, in itself, to constitute "consent” (People v Liotta, supra).

Thus, as defendant Cortes argues, the entire 70-day period should be charged to the People in his case. In defendant Zenon’s case, the only claim made on appeal with respect to delay between the first arraignment and the first readiness declaration concerns the period between an adjournment occurring on September 9, 1987 and the People’s declaration of readiness on September 29, 1987. Since the defense did not affirmatively consent to this adjournment, the intervening 20 days are chargeable to the People.

VI

Applying the foregoing legal conclusions to the facts in these cases, we hold that both indictments were properly dismissed.

In Cortes, the People are chargeable with the 22 days from the filing of the felony complaint to the filing of the first indictment, the 11 days from the filing of that indictment to Cortes’s arraignment on that indictment and the 70 days between the arraignment and the People’s first declaration of readiness. Additionally, the People were properly charged with the entire 90-day period between the dismissal of the first indictment and the filing of the second, as well as the 51-day period between the latter event and Cortes’s arraignment on the second indictment. Finally, the People are chargeable with the 44-day delay that occurred between August 1, 1989, when the case was adjourned for reasons not apparent from the contemporaneous record, and September 14, 1989, when defendant moved to dismiss the indictment pursuant to CPL 30.30. Thus, even when the days that were improperly charged to the People are subtracted, the total delay chargeable to the People, 288 days, is well over the 183 days in which the People were required to become ready.

In the Zenon case, there were 17 days of unexcused prearraignment delay associated with the first indictment and 30 days of unexcused prearraignment delay associated .with the second. Additionally, as in the Cortes case, the People are chargeable with the entire 90-day period between the dismissal of the first indictment and the filing of the second. The People’s unreadiness time also included a 24-day adjournment from December 15, 1987 to January 8, 1988 that was occasioned by the unavailability of the People’s file and a 26-day delay between a February 16, 1989 calendar call and the second People’s readiness declaration on March 14, 1989. Finally, the 20-day period between the September 9, 1987 adjournment and the People’s first readiness declaration on September 29, 1987 was attributable to the People, resulting in a total of at least 187 days of delay that should be charged to the People.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

In each case: Order affirmed.

      . In Cade, the Appellate Division had held that where the Grand Jury has voted a true bill and, before any indictment can be filed, has vacated it at the prosecutor’s request to hear additional evidence, the resulting indictment is fatally defective (140 AD2d 99, supra). On October 24, 1989, this Court rejected that conclusion and reversed the Appellate Division’s order (74 NY2d 410, supra).

      . The period during which Cortes was unrepresented was relevant to Zenon’s motion as well because CPL 30.30 (4) (d) permits an exclusion for delays associated with properly joined codefendants, but only when the statutorily prescribed time for the People to be ready to try the codefendant has not yet run.

      . The six months that the People have to become ready in felony cases is measured by calendar months. Since the number of days in each calendar month may differ, the period in question, which is computed from the date the action was first commenced (see, People v Osgood, 52 NY2d 37) is not necessarily 180 days (see, e.g., People v Rhee, 111 AD2d 655, 656; People v

        Jones, 105 AD2d 179, affd 66 NY2d 529; People v Battles, 77 AD2d 405, 407). The discrepancy in this instance between the time the People had to become ready in Cortes and the time they had to become ready in Zenon results from the fact that the action against Cortes was commenced with the filing of a felony complaint in June of 1987, while the action against Zenon was not commenced until an indictment was filed in July 1987.

      . Even where the postreadiness delay is attributable to the People’s inability to proceed to trial, the delay may be excused if it was occasioned by "some exceptional fact or circumstance” (see, CPL 30.30 [3] [b]) or " 'resulted] from’ action taken by the defendant within the meaning of subdivisions 4 (a), 4 (b), 4 (c) or 4 (e)” (People v Anderson, supra, at 536).

      . The 84 days includes the 22-day period between the filing of the felony complaint (June 17, 1987) and the filing of the first indictment (July 10, 1987), the 11-day period between the filing of the first indictment and the arraignment on that indictment (July 21, 1987) and the 51-day period between the filing of the second indictment (January 17, 1989) to the arraignment on that indictment (March 9,1989).

      . On this appeal, the People make a number of other claims for exclusions during this 84-day period. However, since none of these claims were made before the trial court, they are not cognizable on this appeal.

      . The foregoing is not inconsistent with the Court’s holding in People v Lomax (50 NY2d 351, 356), in which we stated that, even where there have been successive indictments, there can be only one criminal action for each set of criminal charges brought against a particular defendant. Here, we hold only that, despite the theoretical continuity of the criminal action for purposes of computing the time within which the People must become ready (see, id., at 356), the dismissal of the first indictment and its replacement by a new one constituted a sufficiently significant interruption in the normal progression of that unitary action to require a new declaration of readiness from the People.

      . This period occurred after the August 1, 1989 CPL 30.30 dismissal of the Zenon indictment and is thus relevant only to the Cortes case.

      . The additional explanations offered by the People on appeal cannot be considered, since they are not preserved for our review.

      . The People’s present argument that this 70-day period should be excluded under CPL 30.30 (4) (f) because defendant Cortes was without counsel through no fault of the court is unpreserved.

      . When the prosecutor reported that the file was missing, the court initially suggested January 8, 1988 as the next court date, but at Zenon’s counsel’s request, the adjourn date was postponed to January 19, 1988. Contrary to defendant Zenon’s present contention, the intervening 11 days are not chargeable to the People, since that delay is directly attributable to the defense (see, People v Anderson, supra, at 536 ["with respect to postreadiness delay it is the People’s delay alone that is to be considered”]).

      . Before the trial court, the People argued that this period should be excluded because defendant consented to the adjournment. That argument is simply not supported by the record (see, People v Liotta, supra). To the extent that the People now rely on other grounds for excluding this time period, their claims are unpreserved and therefore not reviewable.


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    Peter Mondello, Individually and as Administrator of the Estates of Diane Mondello and Another, Deceased, Respondent, v New York Blood Center — Greater New York Blood Program et al., Appellants, et al., Defendants.
    Argued September 10,1992;
    decided October 22, 1992

      POINTS OF COUNSEL

      Brody & Fabiani, New York City (Roger K. Solymosy, Ellen S. Davis and Neil Brody of counsel), for New York Blood Center — Greater New York Blood Program, appellant.
    I. The statutes and regulations of the State of New York do not establish vicarious liability on the part of a hospital for the acts or omissions of an independent blood center. (Perlmutter v Beth David Hosp., 308 NY 100.) II. The claims against the New York Blood Center, Inc. asserted in the second amended complaint do not relate back to the time of interposition of plaintiffs claim against the New York Hospital. (Brock v Bua, 83 AD2d 61; Di Marco v Hudson Val. Blood Servs., 147 AD2d 156.) III. New York Blood Center, Inc. is not united in interest with the New York Hospital at common law. (Sawyer v Methodist Hosp., 522 F2d 1102; Connell v Hayden, 83 AD2d 30.)

      Martin, Clearwater & Bell, New York City (Barbara D. Goldberg and Kathleen M. Beck of counsel), for the New York Hospital, appellant.
    I. 10 NYCRR 405.2 (h) applied to services "furnished in the hospital”, and as such does not make a hospital vicariously liable for negligence by a blood center outside the hospital’s premises. (Perlmutter v Beth David

      Hosp., 308 NY 100.) II. 10 NYCRR 405.2 (h) was not intended to create a new basis for civil liability. (Barr v Wackman, 36 NY2d 371.) III. Apart from the erroneous construction of 10 NYCRR 405.2 (h) by the Court below, New York law does not permit the imposition of vicarious liability upon a hospital for negligence by a blood supplier, and, accordingly, they cannot be united in interest. (Prudential Ins. Co. v Stone, 270 NY 154; Brock v Bua, 83 AD2d 61; Connell v Hayden, 83 AD2d 30; Raschel v Rish, 69 NY2d 694; Kavanaugh v Nussbaum, 71 NY2d 535; Miles v R & M Appliance Sales, 26 NY2d 451; Bing v Thunig, 2 NY2d 656; Hill v St. Clare’s Hosp., 67 NY2d 72; Mduba v Benedictine Hosp., 52 AD2d 450.)

      Theodore H. Friedman, P. C, New York City, and Dominique Penson for respondent.
    I. New York Hospital has no "independent contractor” defense when it supplies negligent services. (Feliberty v Damon, 72 NY2d 112; Miles v R & M Appliance Sales, 26 NY2d 451; Hannon v Siegel-Cooper Co., 167 NY 244; Dunham v Village of Canisteo, 303 NY 498; Hill v St. Clare’s Hosp., 67 NY2d 72; Cohen v Winter, 144 Misc 2d 503; Mduba v Benedictine Hosp., 52 AD2d 450; Commissioners of State Ins. Funds v City Chem Corp., 290 NY 64; Cleary v Maris Co., 173 Misc 954; Holtfoth v Rochester Gen. Hosp., 304 NY 27.) II. The Court below properly construed 10 NYCRR 405.2 to make the Hospital vicariously liable for negligent services furnished in the Hospital. (Matter of Jeffers v Duffy, 52 AD2d 730; Matter of Saunders v State of New York, 129 Misc 2d 45.) III. New York Blood Center has no Statute of Limitations defense to liability for wrongful death. (Prudential Ins. Co. v Stone, 220 NY 154; Raschel v Rish, 69 NY2d 694; Connell v Hayden, 83 AD2d 30; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Jordan v Westhill Cent. School Dist., 42 AD2d 1043; Zeilter v City of Rochester, 32 AD2d 728; Cohen v Winter, 144 Misc 2d 503; Mangan v White Plains Hosp. Med. Center, 136 AD2d 608; Duffy v Horton Mem. Hosp., 66 NY2d 473.)

      Kopff, Nardelli & Dopf, New York City (Martin B. Adams of counsel), for Hospital Underwriters Mutual Insurance Company, amicus curiae.

    I. The decision of the Court below is erroneous, as a matter of law, in holding a hospital vicariously liable for the negligent acts or omissions of an independent blood bank. (Waters v New York City Hous. Auth., 69 NY2d 225; Strauss v Belle Realty Co., 65 NY2d 399; De Angelis v Lutheran Med. Center, 58 NY2d 1053.) II. The Court below’s construction of 10 NYCRR 405.2 (h) is contrary to the legislative intent of Public Health Law § 580 (4). (Perlmutter v Beth David Hosp., 308 NY 100; Simone v Long Is. Jewish Hillside Med. Center, 81 Misc 2d 163; Samuels v Health & Hosps. Corp., 432 F Supp 1283; Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 65 NY2d 807.) III. The decision of the Court below cannot be supported by any of the rationales used to expand plaintiffs’ rights under vicarious and strict liability.

      Kornstein Veisz & Wexler, New York City (Marvin Wexler and Geoffrey Kaiser of counsel), for FOJP Service Corporation, amicus curiae.

    I. 10 NYCRR 405.2 (h) does not impose vicarious liability on hospitals for the negligence of independent contractors such as blood banks. (Servomation Corp. v State Tax Commn., 51 NY2d 608; Boreali v Axelrod, 71 NY2d 1; Major v Waverly & Ogden, 7 NY2d 332; Hill v St. Clare’s Hosp., 67 NY2d 72; Holzberg v Flower & Fifth Ave. Hosps., 39 AD2d 526, 32 NY2d 716; Freitas v Geddes Sav. & Loan Assn., 63 NY2d 254; Matter of Cortland-Clinton, Inc. v New York State Dept, of Health, 59 AD2d 228; People v Esposito, 146 Misc 2d 847; Lizby Assocs. v Baron, 130 Misc 2d 834; Arbegast v Board of Educ., 65 NY2d 161.) II. The Hospital is not vicariously liable for the acts of the Blood Center under a theory of ostensible agency. (Mduba v Benedictine Hosp., 52 AD2d 450; Smith v Hooker Chem. & Plastics Corp., 83 AD2d 199, 56 NY2d 503; Chung, Yong II v Overseas Nav. Co., 774 F2d 1043, cert denied sub nom. Hibernia Natl. Bank v Chung, Yong II, 475 US 1147; Connell v Hayden, 83 AD2d 30.)

      Mark Thomas, Albany, for Hospital Association of New York State and another, amici curiae.

    I. The Court below improperly interpreted and applied the subject regulations. (Matter of Trump-Equit. Fifth Ave. Co. v Gliedman, 57 NY2d 588; Matter of Jones v Berman, 37 NY2d 42; Freitas v Geddes Sav. & Loan Assn., 63 NY2d 254; Boreali v Axelrod, 71 NY2d 1; Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186; Matter of Campagna v Shaffer, 73 NY2d 237.) II. The existence of rules making a hospital "responsible” for services does not create a private right of action. (Sheehy v Big Flats Community Day, 73 NY2d 629; Bums Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Matter of Citizens For An Orderly Energy Policy v Cuomo, 159 AD2d 141.) III. Imposing vicarious liability on a hospital in these circumstances is beyond recognized permissible limits. (Hill v St. Clare’s Hosp., 67 NY2d 72; Mduba v Benedictine

      Hosp., 52 AD2d 450; Kavanaugh v Nussbaum, 71 NY2d 535; Graddy v New York Med. Coll., 19 AD2d 426, 13 NY2d 1175; Connell v Hayden, 83 AD2d 30; Feigelson v Ryan, 108 Misc 2d 192; Feliberty v Damon, 72 NY2d 112; Raschel v Risk, 110 AD2d 1067; Florentino v Wenger, 19 NY2d 407; Byork v Carmer, 109 AD2d 1087.) IV. For policy reasons, the decision of the Court below should be reversed and vicarious liability not imposed on hospitals for the acts of independent contractors.
   OPINION OF THE COURT

Bellacosa, J.

This legal controversy, still at its early but critical motion stages, originates with the deaths, apparently of complications from AIDS-related diseases, of an infant child in late 1986 and her mother in early 1987. In 1984, the mother received intravenous transfusions of apparently HIV-infected blood. Her widower instituted an action in 1987 against defendant-appellant New York Hospital (Hospital) and several physicians on behalf of himself and his deceased spouse’s and daughter’s estates. Insofar as relevant to the singular Statute of Limitations issue before us in this case, the 1987 complaint was amended in 1989 to add the New York Blood Center (Blood Center) as a defendant.

At this juncture, we must decide whether the wrongful death causes of action against the Blood Center were started too late and are thus time barred. Unless the defendant Hospital and putative defendant Blood Center are "united in interest” within the meaning of CPLR 203 (b) and Brock v Bua (83 AD2d 61), the wrongful death causes of action against the party added in 1989, defendant Blood Center, are concededly untimely and cannot relate back to the timely commenced action against defendant Hospital.

Supreme Court determined that the parties were not united in interest and dismissed as to the Blood Center. The Appellate Division reversed (175 AD2d 718). We agree with Supreme Court’s dismissal of the wrongful death causes of action against the Blood Center on the ground that the Hospital and Blood Center are not united in interest for purposes of avoiding the pertinent time bar.

I

Diane Mondello suffered a placental abruption in November 1984, which caused the death of the near-term child she was carrying at that time. In the course of being treated in the New York Hospital under emergency circumstances for this and subsequent complications, she was given a large number of blood transfusions. It eventually became known and undisputed that the blood and blood parts which she received were collected, tested and provided by the Blood Center. Prior to being used in her treatment, the blood was routed through the Hospital’s licensed and accredited blood bank. About a year and a half later, Mondello gave birth to a daughter. The child died six months later in December 1986, and the mother died less than a month after that in January 1987. The apparent cause of death for both victims was complications associated with AIDS.

The surviving spouse and father brought suit in July 1987, against New York Hospital and several physicians, alleging negligence in the "medical care, treatment and services provided” to the mother and daughter, and for their wrongful deaths. In a bill of particulars, plaintiff set forth the distinct theory that the Hospital had not properly collected and screened the blood used in the transfusions to the mother in connection with the 1984 emergency treatment.

In May 1989, plaintiff served a notice for discovery and inspection to trace the source of the transfused blood. Counsel for the New York Hospital, in June 1989, identified the Blood Center as the source. Plaintiff promptly amended his original complaint against the Hospital in an attempt to add the Blood Center as a defendant and to state additional causes of action against the Hospital. A new, separate complaint was also initiated against the Blood Center. In both complaints, the Blood Center was charged under theories of negligence, including the "testing, manufacture, inspection, distribution, promotion and sale” of blood products.

Supreme Court dismissed those causes of action against the Blood Center which sounded in strict product liability and breach of warranty, noting that, by statute, the collection, processing and dispensing of blood is a "public health service” and not a "sale of such blood or blood derivative, for any purpose * * * whatsoever” (Public Health Law § 580 [4]). That court, however, declined on prematurity grounds to dismiss causes against the Blood Center sounding in negligence for loss of services and for conscious pain and suffering. These were deemed governed by the "toxic substance” discovery rule of CPLR 214-c and, thus, additional disclosure would be necessary to ascertain the dispositive discovery date.

The only part of Supreme Court’s ruling now before us is the dismissal of the wrongful death causes of action against the defendant Blood Center on Statute of Limitations grounds. The court noted that the two-year bar of EPTL 5-4.1 would apply to those actions, unless plaintiff could demonstrate that the Blood Center and the Hospital were united in interest within the meaning of CPLR 203 (b). If such unity of interest were present, the amended and new complaints of 1989 would relate back for Statute of Limitations purposes to the date of the originally commenced action in 1987. The court concluded, however, that the Hospital and Blood Center were "at most joint tortfeasors and not parties united in interest.”

The Appellate Division, First Department, reversed the dismissal of the wrongful death causes of action (175 AD2d 718). It adopted and applied the relation back test formulated by the Appellate Division, Second Department, in Brock v Bua (83 AD2d 61, 69, supra), which embossed the bare language of CPLR 203 (b) with a three-pronged application. The Appellate Division found all three prongs satisfied in this case.

Its analysis of the second prong, unity of interest of the defendant parties, has emerged as the central dispositive focus of this appeal. The Appellate Division noted that unity of interest will generally be found where one of the parties is vicariously liable for the conduct of the other (Raschel v Risk, 69 NY2d 694). It found vicarious liability between the Hospital and the Blood Center rooted in a perceived State policy reflected in certain regulations of the New York State Department of Health (175 AD2d, at 722, supra). These regulations, among other things, declare that "[t]he governing body [of the hospital] shall be responsible for services furnished in the hospital whether or not they are furnished by outside entities under contracts” (10 NYCRR 405.2 [h] [emphasis added]). The Appellate Division thus found it unnecessary to determine whether, "even in the absence of these regulatory provisions, the facts of this case might present an exception to the general rule that parties are not liable for the negligence of independent contractors either because plaintiff reasonably looked only to the Hospital for the performance of this service * * * or because the harm caused arose from a danger inherent in the work” (175 AD2d, at 722, supra). We find it necessary to address and resolve the latter questions because plaintiff now concedes that the regulation relied on by the parties and Appellate Division up to this point in the litigation was not in effect at the relevant time at issue. It simply is not dispositive in this case.

n.

The CPLR 203 (b) relation back rule provides in pertinent part that a "claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest * * * when: 1. the summons is served upon the defendant” (compare, Shaw v Cock, 78 NY 194 [1879]). The Appellate Division, in Brock v Bua (83 AD2d 61, supra), gave the rule a three-prong specificity, patterned largely after the Federal "relation back” test codified in rule 15 (c) of the Federal Rules of Civil Procedure (see generally, 1 Weinstein-Korn-Miller, NY Civ Prac If 203.05, at 2-92, 2-93; compare also, Duffy v Horton Mem. Hosp., 66 NY2d 473, 476-477). The Brock test examines whether (1) both claims arose out of the same conduct, transaction or occurrence; (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement; and (3) the new party knew or should have known that, but for an excusable mistake by the plaintiff in originally failing to identify all the proper parties, the action would have been brought against the additional party united in interest as well (Brock v Bua, supra, at 69). All three features must be met for the statutory relation back remedy to be operative.

We endorse the Brock test and apply it in this case, concluding essentially that the second prong is not met. Because we conclude that the Hospital cannot be held vicariously liable for the alleged negligence of the Blood Center in the discharge of the Blood Center’s discrete responsibilities, we cannot say that the interest of the Hospital and the Blood Center "in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other” (Prudential Ins. Co. v Stone, 270 NY 154, 159).

Generally, liability in negligence is premised on a wrongdoer’s own fault, not the fault of others (see, Feliberty v Damon, 72 NY2d 112, 117). Vicarious liability, somewhat like strict products liability, is an exception to the general proposition that limits one’s liability to one’s own wrongdoing. Exceptions such as these evolve out of a complex mix of policy considerations concerning spreading and allocating risks and providing recourse in damages as a means of recompense and deterrence. Always in making such calibrated choices a "line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit” (De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055). In particular, problems of blood contamination and the control of the epidemic spread of HIV and AIDS present the sort of "grave problem[] * * * exciting high priority activity on the part of the national, State and local governments” toward which the courts should be reluctant to "foist a presumed cure * * * by judicial innovation of a new kind of liability in tort” (see, Riss v City of New York, 22 NY2d 579, 582).

The delivery of medical services in hospitals is meticulously governed by a web of professional, legislative, judicial and regulatory precepts which assign duties and apportion liabilities. Because of its unique and critical nature, the handling of human blood has been treated with particularly close governmental scrutiny. Thus, despite the fact that modern rules of strict products liability in tort customarily apply when products, including medicinal products, are in commerce between manufacturers, suppliers, intermediaries and users, that has not been so in the case of the blood supply. Like a number of other States, New York has chosen to treat human blood differently. New York defines "[t]he collection, processing, storage, distribution or use of blood or a blood derivative” for medical purposes to be a "public health service” (see, Public Health Law § 580 [4] [emphasis added]). In so doing, the State shields blood providers and this uniquely different "service” from ordinary strict tort liability precepts and remedies.

Public Health Law § 580 (4), a legislative codification of the holding in Perlmutter v Beth David Hosp. (308 NY 100, rearg denied 308 NY 812), thus contributes significantly to our analysis of the liability implications and relationships involved in supplying blood. Notwithstanding the intertwined practical logistics of the collection, distribution and delivery processes, we are faced with a precedent and statute that treat the flow of blood from its source to an ultimate recipient as a unique discrete service. For the purposes of imposing liability, the provision of blood is viewed as a continuum of service made up of segmented duties and responsibilities imposed consecutively on the purveyors of that service, up to and including giving the blood to the patient. This approach is consistent with the allocation scheme erected by the Legislature through the Department of Health, apportioning some duties to blood collection agencies and others to hospitals (compare, e.g., 10 NYCRR 58-2.17 [specifying tests to be performed prior to transfusions], with 10 NYCRR 58-2.3 [specifying tests to be performed on blood "collected from the donor at the time of each donation”]).

Also, we have construed the undertaking which a hospital makes to a patient in a hospital to be less than a plenary assumption of all medical responsibilities and services (Florentino v Wenger, 19 NY2d 407, 414). Most pointedly, when treatment is provided by an independent physician, the physician, not the hospital, is regarded as rendering a direct professional service to the patient. The relationship between an independent physician and the hospital does not thrust vicarious liability on the hospital for all the actions of the doctor (id.). This settled principle is somewhat shaken by the vicarious liability analysis in this case by the Appellate Division which, seemingly aware that its interpretation might be viewed as too all-encompassing, tried to trim the sweep of its holding. It stated that the Health Department regulations on which it was relying did not apply to services furnished by physicians who are independent contractors, since the governing body’s relations with the hospital’s "medical staff * * * is dealt with independently in a separate subdivision of the same regulation (10 NYCRR 405.2 [e])” (175 AD2d, at 721, supra).

We do not mean to suggest that the legal relationship between hospitals and physicians who provide services in hospitals is determinative of the relationship between blood service providers and hospitals. Rather, the comparison serves to defuse the mistaken generality that the hospitals must be viewed as total care providers with a common, united interest with all other providers. Plaintiff would have the Hospital charged with undertaking to provide a holistic health and medical service that includes all aspects of a blood supply service from donor through collector to recipient. We are unable to accept that view and its corollary: that the Hospital has delegated part of its duty to the Blood Center. The Hospital has not transferred to the Blood Center any responsibility for performing its own uniquely nondelegable hospital functions; nor is the converse true. Each has a distinct role, not necessarily and legally united. Thus, we conclude that the Hospital and Blood Center provide respective, complementing parts of a "public health service” to the Hospital’s patients (Public Health Law § 580 [4]). Their discrete responsibilities, as a matter of policy choice on the allocation of vicarious tort liability, may be related but they are not legally united.

The ostensible agency doctrine of Hannon v Siegel-Cooper Co. (167 NY 244) does not change our analysis or result. The principle of Hannon is reflected in Restatement (Second) of Torts § 429: "One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by [its] servants” is liable for the negligence of the "contractor”. We applied this principle in Hill v St. Clare’s Hosp. (67 NY2d 72) by attributing malpractice vicariously to the physician-owner of a medical clinic "which is held out to the public as offering medical services” (id., at 75). However, here, the Hospital did not hold itself out as having screened blood for contagious disease or furnish any personnel for that purpose. Moreover, we see no basis to assign a generalized expectation or to credit individual subjective beliefs that a hospital is performing certain highly technical tests when that duty is already reposed by regulation in sophisticated and specialized blood collection entities. It may be that blood testing duties existed independently in each of these parties, but we see no reason why each should not answer for its own wrongdoing under the general tort principle of personal responsibility, not one for another’s wrongdoing by way of vicarious attribution, invoked to allow a bypass of the otherwise applicable Statute of Limitations.

Also, no one can doubt that the provision of blood carries with it inherent grave dangers. There could be no more dramatic example than the instant case, where the transfusions of blood allegedly led to the tragically interrelated deaths of two people. Though the medical consequences in this case are frightening, poignant and distressing, we must nevertheless remain mindful in the assignment of liability context that "[t]he art of healing frequently calls for a balancing of risks and dangers to a patient” (Perlmutter v Beth David Hosp., 308 NY 100, 107, supra). In the case of blood services, the Legislature, this Court and regulatory agencies have balanced some of the dangers and risks. The choices that are made surely and dramatically affect, for good or ill cannot always be known, the manner and kind of services that are rendered by the respective medical care providers.

The subject wrongful death causes of action here, our only focus, rest entirely on the potential vicarious liability of the Hospital for the discrete wrongdoing of the Blood Center as a predicate for the application of the relation back provision of CPLR 203 (b). We conclude that CPLR 203 is not a time machine by which the late lawsuit against the Blood Center can be given life by carrying it back to the earlier date of the timely commenced lawsuit against the defendant Hospital, because the Hospital should not be vicariously liable for the pertinent alleged negligent acts of the Blood Center.

IIL

Inasmuch as we conclude that a basis for vicarious liability in these circumstances is absent, it does not suffice that the first prong of Brock v Bua (83 AD2d 61, supra) is met — that the complaints against both the Hospital and the Blood Center did arise out of some of the same "conduct, transaction or occurrence,” the provision of allegedly HIV-infected blood to Diane Mondello. We note also that, under the circumstances presented, we have no occasion to address and resolve the third prong of Brock concerning the excusability of the conduct of plaintiffs counsel in not timely suing the Blood Center.

The narrow aspect of the procedurally complicated case that we decide today does not bear on the direct liability of the New York Hospital for any of its own wrongdoing. Plaintiff has alleged in his second amended complaint that the Hospital was "grossly negligent” in the "medical care, treatment and services provided” to his wife, and plaintiff has further alleged in a bill of particulars that this negligence encompassed the failure of the Hospital to properly screen the blood used in the transfusions to his wife in 1984. As the timely actions against the Hospital go forward, plaintiff will be afforded an opportunity to prove that the Hospital was negligent under a variety of theories, including its selection of the Blood Center as a blood provider (see, e.g., Davidson v Hillcrest Gen. Hosp., 40 AD2d 693). Furthermore, our ruling today does not affect any other timely instituted action against the Blood Center.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant Blood Center’s motion to dismiss the wrongful death causes of action granted.

Chief Judge Wachtler and Judges Simons, Kaye, Titone and Hancock, Jr., concur; Judge Smith taking no part.

Order reversed, with costs, and defendant Blood Center’s motion to dismiss the wrongful death causes of action granted, and certified question answered in the negative.


text:
    In the Matter of LaCorte Electrical Construction and Maintenance, Inc., Appellant, v County of Rensselaer et al., Respondents.
    Argued September 9,1992;
    decided October 22, 1992

      POINTS OF COUNSEL

      Hiscock & Barclay, Albany (Robert L. Adams of counsel), for appellant.
    I. Appellant was denied its due process rights to prior notice of the basis for concerns relative to its responsibility and an opportunity to be heard by the Board of Trustees prior to a determination that appellant was not a responsible bidder. (Matter of Schiavone Constr. Co. v Larocca, 117 AD2d 440, 68 NY2d 610; New York State Asphalt Pavement Assn, v White, 141 Misc 2d 28; Matter of Seacoast Constr. Corp. v Lockport Urban Renewal Agency, 72 Misc 2d 372; Old Dominion Dairy Prods, v Secretary of Defense, 631 F2d 953; Conset Corp. v Community Servs. Admin., 655 F2d 1291; Board of Regents v Roth, 408 US 564; Wisconsin v Constantineau, 400 US 433.) II. The Board of Trustees’ violation of the Open Meetings Law renders its determination to reject appellant’s bid a nullity. (Matter of Sciolino v Ryan, 81 AD2d 475.) III. The decision of the Board of Trustees, based upon a process conducted in violation of law and in violation of appellant’s due process rights, was irrational, arbitrary and capricious. (Matter of Bonacorsa v Van Lindt, 71 NY2d 605.)

      Robert A. Smith, County Attorney of Rensselaer County, Troy (Thomas R. doff of counsel), for respondents.
    I. Appellant was accorded its due process rights by being given notice and an opportunity to be heard prior to the making of the final determination by the County Legislature as to the award of the contract. (Matter of Schiavone Constr. Co. v Larocca, 117 AD2d 440; New York State Asphalt Pavement Assn, v White,, 141 Misc 2d 28.) II. The Board of Trustees did not violate the Open Meetings Law. III. The determinations of the Board of Trustees and the County Legislature were not arbitrary, capricious or otherwise illegal. (Matter of Zara Contr. Co. v Cohen, 45 Misc 2d 497, 23 AD2d 718; Abco Bus Co. v Macchiarola, 52 NY2d 938; Matter of Dellwood Foods v Board of Educ., 97 Mise 2d 751; Matter of Lord Elec. Co. v Litke, 122 Misc 2d 112; Matter of Meyer v Board of Educ., 31 Misc 2d 407.)
   OPINION OF THE COURT

Bellacosa, J.

In this dispute involving the award of a public works contract to the "lowest responsible bidder”, petitioner-appellant LaCorte Electrical Construction and Maintenance, Inc. (LaCorte), the low bidder, seeks in effect to clear its business name and reputation from the implication that it was not a responsible bidder. The challenged determination of the Hudson Valley Community College (HVCC) Board of Trustees, subsequently approved by the Rensselaer County Legislature as required by Education Law § 6306 (7), implicitly rejected LaCorte as a responsible bidder under General Municipal Law § 103 by awarding the electrical contract to the second lowest bidder. The premise for the relief LaCorte seeks is that it was deprived of notice and an opportunity to present its views to the HVCC Board. We hold, under the circumstances and representations of respondent in this case, that LaCorte was denied meaningful and timely opportunity to defend its name and reputation, and we therefore reverse the order of the Appellate Division.

On March 30, 1990, LaCorte, an electrical contractor in Rensselaer County, bid for the subcontract electrical work for the construction of the Edward F. McDonough Health, Physical Education and Recreation Complex to be built on the campus of respondent HVCC. LaCorte’s bid was $683,994— $67,732 lower than the next lowest bid submitted by respondent Schenectady Hardware and Electric (SH&E). In the course of evaluating the various bids, officials at HVCC confirmed with the State Department of Labor that in 1987 LaCorte had stipulated to willful violations of the Labor Law for failing to pay the prevailing wage on public projects in 1984-1985. HVCC also confirmed through an Assistant Attorney-General that LaCorte was accused under a 25-count criminal indictment involving extortion, larceny and other crimes stemming from conduct in demanding paybacks after making restitution for the violations of the Labor Law. HVCC was accurately informed that, in accordance with a plea bargain, LaCorte was expected to plead guilty on April 3, 1990 to one class E felony count in satisfaction of the indictment. LaCorte was not contacted to verify the data nor given an opportunity to explain or defend its reputation before HVCC, a procedural step that counsel for respondents forthrightly acknowledges would have been prudent and preferable.

The HVCC Board of Trustees held a regularly scheduled meeting on April 2, 1990. The published agenda for that meeting included consideration of certain bids for the subject building complex. The agenda purposefully did not include the electrical work contract. Shortly after the meeting convened, however, the Board went into executive session to discuss financial, credit and employment histories of the bidding contractors. When the Board reconvened its regular session, it voted to amend the agenda to include a vote on the electrical work contract and, without explanation, awarded it to SH&E as the "lowest responsible bidder”. By implication and operation of law, LaCorte was thus deemed to be not a "responsible” bidder (see, General Municipal Law § 103 [1]). LaCorte was not present or aware of this development. The next day, LaCorte pleaded guilty to a single class E felony in satisfaction of the indictment. The HVCC Board’s contract with SH&E was approved by the Rensselaer County Legislature at its April 11, 1990 meeting (see, Education Law § 6306 [7]). Though the record reflects that letters were submitted to the Legislature concerning LaCorte’s reputation, there is no evidence that LaCorte had any official notice or opportunity to present its position to that body.

LaCorte sued on various grounds to annul the implication of its nonresponsibility and to prohibit or void the award of the contract to SH&E. Its principal attack rests on the failure of HVCC to give it notice and an opportunity to defend its status as a responsible bidder prior to HVCC’s award of the electrical contract. Its subsidiary claims are that the implied determination of nonresponsibility is arbitrary and capricious, and that the Board’s actions violate the Open Meetings Law (Public Officers Law § 100 et seq.).

Supreme Court dismissed LaCorte’s CPLR article 78 petition and the Appellate Division affirmed, with two Justices dissenting (177 AD2d 786). This appeal as of right followed. The majority at the Appellate Division relied essentially on Education Law § 6306 (7), which requires the County Legislature’s approval for the award of the HVCC contracts. The Court reasoned (at 787) that before the Legislature approved HVCC’s award, LaCorte "had notice of the concern about its responsibility and the reason for that concern,” and that while "the nature of [LaCorte’s] opportunity to rebut the charges” prior to the Legislature’s vote was "not clearly established],” LaCorte’s due process rights were satisfied by the submission of letters on LaCorte’s behalf addressed to the Legislature attesting to its responsibility as an electrical contractor. The dissenting Justices contended that, while the County Legislature’s approval of the contract award is required under Education Law § 6306 (7), the HVCC Board of Trustees is the entity that undertakes to make the decision and, therefore, LaCorte’s due process rights were violated by the HVCC Board’s conceded failure to provide LaCorte with any notice and opportunity to present views prior to the Board’s consideration of the pertinent bids and its award of the contract. The dissent added that there is no record evidence, in any event, that LaCorte received any notice or opportunity to be heard prior to the County Legislature’s consideration of the matter.

This case raises competing concerns regarding the manner in which a government entity deals with prospective contractors. General Municipal Law § 103 (1) required that "all contracts for public work involving an expenditure of more than [$7,000] * * * shall be awarded by the appropriate officer, board or agency of a political subdivision * * * to the lowest responsible bidder furnishing the required security after advertisement for sealed bids” (emphasis added). While the protected "liberty” interest in this context has not been precisely defined, it has been given flexible meaning and has been held to include the right to contract (see, Board of Regents v Roth, 408 US 564, 571-572, quoting Meyer v Nebraska, 262 US 390, 399). Respondents, for purposes of this case, virtually concede that LaCorte has some protected interest, but urge that it was adequately safeguarded.

When a low bidder such as LaCorte has its bid rejected with the inevitable implication of nonresponsibility, its commercial " 'good name, reputation, honor, or integrity is at stake’ ” (see, Board of Regents v Roth, supra, at 573, quoting Wisconsin v Constantineau, 400 US 433, 437; see also, Paul v Davis, 424 US 693, 701, reh denied 425 US 985; Old Dominion Dairy Prods, v Secretary of Defense, 631 F2d 953, 963 [DC Cir]). While safeguards of reasonable notice and timely opportunity to be heard become operative in such circumstances, the public fisc and process must also be weighed in light of the additional expense of a more costly contract flowing from the rejection of the lowest bid. In considering required and appropriate remedies for failure to afford necessary protections, courts are not blind to the need that governmental entities be able to conduct business in an efficient and effective manner and to "the potentially crippling effect that might result from the imposition of stringent due process requirements with respect to all [Government] actions adverse to unsuccessful bidders on Government contracts” (see, Old Dominion Dairy Prods, v Secretary of Defense, 631 F2d 953, 968, supra).

In awarding the contract as it did here and effecting the determination of LaCorte’s nonresponsibility, HVCC withheld notice and timely opportunity from LaCorte so it could not provide its input concerning its responsibility as a contractor (see, Matter of Schiavone Constr. Co. v Larocca, 117 AD2d 440, 444, Iv denied 68 NY2d 610). Instead, the electrical work contract was not included on the published HVCC agenda and was only added to the agenda after an executive session, and then quickly resolved before the adversely affected party could know or address its impact. Inasmuch as it is undisputed that LaCorte received absolutely no notice and no timely opportunity to address the Board’s concerns prior to its implied determination of nonresponsibility, we conclude that the losing bidder is entitled to appropriate relief shaped by the circumstances of this case.

Moreover, in these circumstances, the deficiency cannot be excused by resorting to the requirement that the County Legislature "approve” the HVCC award of the contract to the second lowest bidder (see, Education Law § 6306 [7]). In this respect, we agree with the dissenting Justices at the Appellate Division that "the decision-making process is undertaken by HVCC’s Board of Trustees” (177 AD2d 786, 787, supra), and therefore LaCorte’s conceded rights were triggered and inextricably implicated at that key stage, i.e., the Board’s consideration of the bids and determination of the contract awards.

Despite the reference to letters submitted to the Legislature, there is no proof, in any event, on this record that LaCorte ever received notice or an adequate opportunity to present views even prior to the County Legislature’s action. The opportunity to be heard should be afforded "'at a meaningful time and in a meaningful manner’ (Mathews v Eldridge, 424 US 319, 333 [emphasis added], quoting Armstrong v Manzo, 380 US 545, 552). Thus, the circumstance that LaCorte, after the Board’s vote, may have known that its responsibility as a bidder was at risk and that letters addressed to the Legislature were submitted on LaCorte’s behalf attesting to its responsibility as an electrical contractor does not cure the defect.

Petitioner’s criminal indictment or stipulation to willful violations of the Labor Law may have provided a rational basis for a determination that petitioner is not a responsible bidder (see, Abco Bus Co. v Macchiarola, 52 NY2d 938, revg on App Div dissent 75 AD2d 831, 833, rearg denied 53 NY2d 797; Matter of Konski Engrs. v Levitt, 49 NY2d 850, affg on App Div 69 AD2d 940, 942, cert denied 449 US 840; Matter of Schiavone Constr. Co. v Larocca, 117 AD2d 440, 444, lv denied 68 NY2d 610, supra). While we may not make that determination in the first instance or at this stage of the proceeding, we see no need or basis at this time and at this juncture to vacate the award of the electrical contract. On the remand, the Board should reexamine only its implicit determination of LaCorte’s nonresponsibility, on appropriate notice and opportunity to LaCorte.

We have considered LaCorte’s other contentions and conclude that they are without merit in the context of this case.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court to grant the petition only to the extent of remanding to the HVCC Board of Trustees for such further proceedings as may be sought, consistently with this opinion.

Chief Judge Wachtler and Judges Simons, Kaye, Titone and Hancock, Jr., concur; Judge Smith taking no part.

Order reversed, with costs, and matter remitted to Supreme Court, Rensselaer County, for further proceedings in accordance with the opinion herein.


author: Chief Judge Wachtler.

text:
    The People of the State of New York, Appellant-Respondent, v David Roth and Lance Wilson, Respondents, and James Domermuth and Domermuth Petroleum Equipment and Maintenance Corporation, Doing Business as Domermuth Environmental Services, Respondents-Appellants.
    Argued September 9,1992;
    decided October 27, 1992

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General, New York City (Richard M. Greenberg and Jerry Boone of counsel), for appellant-respondent.
    The evidence before the Grand Jury was legally sufficient to support counts one through four of the indictment and those counts were improperly dismissed. (People v Mikuszewski, 73 NY2d 407; People v Deegan, 69 NY2d 976; People v Warner-Lambert Co., 51 NY2d 295; People v Reyes, 75 NY2d 590; People v Pelchat, 62 NY2d 97; People v Richards, 128 AD2d 387; People v Finley, 104 AD2d 450; Matter of Anthony M., 63 NY2d 270; People v Cicchetti, 44 NY2d 803; People v Alaxanian, 89 AD2d 700.)

      Sinzheimer & Keefe, P. C, Albany (Ronald H. Sinzheimer and Peter J. Molinaro of counsel), for respondents-appellants.
    I. Counts one, two and four of the indictment charging manslaughter, criminally negligent homicide and reckless endangerment were properly dismissed. (People v Warner-Lambert

      Co., 51 NY2d 295, 450 US 1031; People v Reyes, 75 NY2d 590; People v Deitsch, 97 AD2d 327.) II. The dismissal of count three of the indictment by the court below should be affirmed. (United States v Harriss, 347 US 612; Grayned v City of Rockford, 408 US 104.) III. The decision of the court below in reinstating counts five, six, seven and eight of the indictment alleging falsified business records should be reversed and the counts dismissed. IV. The Court below erred in reversing the trial court’s dismissal of counts nine, ten, eleven and twelve of the indictment, the hazardous waste counts. (Matter of Al Tech Specialty Steel Corp. v New York State Dept, of Taxation & Fin., 130 AD2d 84; People v Harris Corp., 104 AD2d 130; People v Valles, 62 NY2d 36; People v Calbud, Inc., 49 NY2d 389; People v Macellaro, 131 Misc 2d 383.) V. The dismissal of the zoning counts as to James Domermuth should be affirmed.

      Edward F. Gerber, Syracuse, and Mary J. Fahey for David Roth, respondent.
    I. There was insufficient evidence presented to the Grand Jury. (People v Stewart, 40 NY2d 692; People v Warner-Lambert Co., 51 NY2d 295; People v Boutin, 75 NY2d 692; People v Reyes, 75 NY2d 590; People v Deitsch, 97 AD2d 327; People v Ricardo B., 73 NY2d 228.) II. Defendant David Roth cannot be found to be criminally liable for acts he did not commit and for which he had no culpable mental state. (People v Byrne, 77 NY2d 460.)

      Michael J. Vavonese, Syracuse, and Emil M. Rossi for Lance Wilson, respondent.
   OPINION OF THE COURT

Chief Judge Wachtler.

This criminal prosecution stems from the death of an employee of the corporate defendant, a company engaged in the business of transporting petroleum products. The employee was killed when petroleum vapors exploded while he was cleaning a tank trailer. The defendant corporation and defendants Roth and Wilson, the district manager and operations manager of the facility, were indicted for second degree manslaughter, criminally negligent homicide, reckless endangerment, endangering public health, safety or the environment in the second degree and a variety of other charges relating to their handling and documentation of hazardous waste. In addition, these defendants and defendant Domermuth, the corporation’s president, were charged with zoning violations.

With respect to the homicide charges, the theory of the prosecution is that the defendants were responsible for a variety of unsafe conditions and improper practices at the facility and that the explosion and death were the foreseeable results of these conditions and practices. County Court dismissed all counts of the indictment except, as against the corporation, one count of hazardous waste possession and the zoning violations. While it reinstated several of the lesser charges against certain defendants, the Appellate Division affirmed the dismissal of the homicide charges, the reckless endangerment charge and the charge of endangering public health, safety or the environment. Both lower courts, relying on People v Warner-Lambert Co. (51 NY2d 295, cert denied 450 US 1031), ruled that as to these counts, the evidence before the Grand Jury was insufficient because it did not establish the actual triggering cause of the explosion.

We modify by reinstating the reckless endangerment charge. We agree that the other charges were properly dismissed, but for different reasons.

In our view, the evidence before the Grand Jury was sufficient to establish that the fatal explosion underlying this homicide prosecution was triggered by a spark from a nonexplosion proof trouble light. According to the evidence, the spark was produced when the unprotected bulb was struck by a stream of water from a high pressure washer. Witnesses also identified a number of other unsafe conditions at the site, several of which had the potential to trigger an explosion in the vapor-laden atmosphere. The fire investigator, however, who was the only witness to offer an expert opinion about the actual cause of the explosion, stated that he was 99.9% certain that the explosion was caused by a spark from the trouble light. This was legally sufficient proof to support the conclusion that the explosion was in fact caused by conditions for which the defendants were responsible (see, People v Reyes, 75 NY2d 590, 593 [fire marshall 98% certain that fire started by heat from overloaded electrical wiring]).

To support the charges of reckless manslaughter and criminally negligent homicide, however, the People were also required to submit proof from which the Grand Jury could conclude that the actual cause of the explosion was foreseeable (see, People v Warner-Lambert Co., supra; People v Kibbe, 35 NY2d 407). For purposes of criminal liability, it was not enough to show that, given the variety of dangerous conditians existing at the site, an explosion was foreseeable; instead the People were required to show that it was foreseeable that the explosion would occur in the manner that it did.

It was error, therefore, to instruct the Grand Jury that the defendants could be indicted “if you find that they recklessly created unsafe conditions that led to [the victim’s] death by a foreseeable event, namely, the explosion.” Moreover, even if the Grand Jury had been properly instructed in this regard, the indictment on these charges could not stand. Keeping in mind that the standard for criminal liability is higher than that required for civil liability (see, People v Warner-Lambert Co., supra, at 306), we conclude that the evidence before the Grand Jury is insufficient to support the conclusion that the defendants should have foreseen that their employee would place the unprotected trouble light in the path of the high pressure washer during the tank cleaning operation and that an explosion-causing spark would result from this combination. Thus, we agree with the courts below, although for somewhat different reasons, that counts one and two of the indictment, charging defendants with second degree manslaughter and criminally negligent homicide, respectively, must be dismissed for legal insufficiency.

We also agree with the courts below — although again for different reasons — that count three of the indictment, charging defendants with endangering public health, safety or the environment in the second degree (ECL 71-2713 [1]) must be dismissed. Pursuant to ECL 71-2720 (1), the provisions of ECL 71-2713 (1) and its companion statutes do not apply to “persons who possess and whose conduct is subject to and in compliance with * * * a valid license, permit, certificate or order” when engaged in an activity requiring such a license, permit, etc.

It is undisputed that defendants possessed a valid permit to transport petroleum wastes. Although there is evidence that defendants may have violated the terms of their transporter permit in various ways, there is no evidence that these alleged violations had anything to do with the emission of petroleum vapors that led to the explosion. Instead, the vapors were released in the course of a tank cleaning operation. No evidence was proffered that tank cleaning was other than a normal and lawful aspect of defendants’ transport activities or that any violations contributed to the release of vapors. In short, whatever violations may have been lurking in the background, it appears that the petroleum vapors were released in the course of an activity that fell within the scope of defendants’ transporter permit and therefore within the exemption of ECL 71-2720 (1) — at least, no evidence to the contrary was before the Grand Jury.

Count four of the indictment, however, charging defendants with reckless endangerment in the second degree, should be reinstated. This crime is committed when a person "recklessly engages in conduct which creates a substantial risk of serious physical injury to another person” (Penal Law § 120.20).

In contrast to the crimes charged in counts one and two —reckless manslaughter and criminally negligent homicide— there is no requirement that the defendants’ reckless conduct cause injury or death (see, People v Davis, 72 NY2d 32, 36). Since the occurrence of an injury is immaterial, the fact that the defendants could not have foreseen the manner in which this injury occurred does not negate their liability under the statute. It is enough that the defendants were "aware of and consciously disregarded] a substantial and unjustifiable risk * * * of such nature and degree that disregard thereof constitute[d] a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3] [definition of "recklessly”]), and that the risk involved serious injury to another person.

The evidence before the Grand Jury indicated that defendants allowed a tank containing petroleum products to be cleaned without adequate ventilation and in the presence of numerous sources of ignition. This evidence was sufficient to support the charge of reckless endangerment in the second degree.

Finally, as to the counts of the indictment reinstated by the Appellate Division, we agree, for the reasons stated by that Court, that there was legally sufficient evidence to sustain those counts

Accordingly, on the People’s appeal, the order of the Appellate Division insofar as appealed from should be modified by reinstating count four of the indictment and, as so modified, affirmed. On the appeal by defendants James Domermuth and Domermuth Petroleum Equipment and Maintenance Corp., the order of the Appellate Division insofar as appealed from should be affirmed.

Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

On the People’s appeal, order insofar as appealed from modified by reinstating count four of the indictment and, as so modified, affirmed. On the appeal by defendants James Domermuth and Domermuth Petroleum Equipment and Maintenance Corp., order insofar as appealed from affirmed.

       We note that our review of the Appellate Division order is limited in several respects. On the People’s appeal, as limited by the Attorney-General’s brief, no review is sought of that part of the order which affirmed the dismissal of counts five through eight as against defendant Wilson. In addition, defendants Roth and Wilson do not cross-appeal, thus precluding our review of the reinstatement of counts five through eight against defendant Roth and counts nine through fourteen against both Roth and Wilson. Finally, on their cross appeal, defendants James Domermuth and Domermuth Petroleum Equipment and Maintenance Corp., as limited by their brief, do not seek review of that part of the Appellate Division order which pertains to counts thirteen and fourteen as against the corporate defendant.


author: Simons, J.

text:
    The People of the State of New York, Respondent, v Domingo Antommarchi, Appellant.
    Argued September 11,1992;
    decided October 27, 1992

      POINTS OF COUNSEL

      Kenneth Finkelman, New York City, and Philip L. Weinstein for appellant.
    I. Appellant was denied due process by the court’s repeated instruction that a doubt was reasonable only if a reason for the doubt could be articulated to other jurors, including during its Allen charge where it emphasized that jurors holding reasonable doubts must be "willing and able to give a fair, calm explanation for [their] position.” (In re Winship, 397 US 358; People v Guidici, 100 NY 503; Adams v South Carolina, 464 US 1023; Francis v Franklin, 471 US 307; People v Victor, 62 NY2d 374; Jackson v Virginia, 443 US 307; People v Diaz, 66 NY2d 744; People v Stokes, 139 AD2d 428; People v Rivera, 116 AD2d 371.) II. Appellant was deprived of his absolute right to be present during the impaneling of the jury, when the court, in his absence, conducted crucial voir dire questioning of prospective jurors on the subject of whether they could be fair and impartial in a drug case and about other issues which related to possible bias. (People v

      Anderson, 16 NY2d 282; People v Ciaccio, 47 NY2d 431; People v Wilson, 106 AD2d 146; People v Rodriguez, 71 NY2d 214; People v Buford, 69 NY2d 290; United States v Mackey, 915 F2d 69; United States v Gordon, 829 F2d 119; Lewis v United States, 146 US 370; People v Velasco, 77 NY2d 469; People v Harris, 76 NY2d 810.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Paul Shechtman, David Joseph Mudd and Eleanor J. Ostrow of counsel), for respondent.
    I. The trial court properly charged the jury on the concept of proof beyond a reasonable doubt. (People v Jackson, 76 NY2d 908; People v Guidici, 100 NY 503; People v Malloy, 55 NY2d 296, 459 US 847; People v Jones, 27 NY2d 222; People v Lagroppo, 90 App Div 219, 179 NY 126; People v Serrano, 170 AD2d 269, 77 NY2d 1000; People v Jones, 162 AD2d 204, 76 NY2d 859; People v Quinones, 123 AD2d 793; United States v Davis, 328 F2d 864; United States v Eury, 268 F2d 517.) II. Defendant is not entitled to a new trial under People v Sloan (79 NY2d 386). (People v Velasco, 77 NY2d 469; Snyder v Massachusetts, 291 US 97; People v Pepper, 53 NY2d 213; People v Morales, 37 NY2d 262; People v Taylor, 76 NY2d 873; People v Bolling, 79 NY2d 317; United States v Washington, 705 F2d 489; People v Mullen, 44 NY2d 1; People v Ganett, 68 AD2d 81, 51 NY2d 991.)
   OPINION OF THE COURT

Simons, J.

A jury has convicted defendant of criminal possession of a controlled substance in the third degree and the Appellate Division has affirmed. He seeks reversal contending that (1) he was denied his constitutional and statutory right to be present during a material stage of the proceedings (see, US Const 6th, 14th Amends; NY Const, art I, § 6; CPL 260.20) and (2) the court’s instruction on reasonable doubt deprived him of due process of law under the Federal and State Constitutions (US Const 14th Amend; NY Const, art I, §6). We agree that defendant was denied the right to be present during a material stage of the trial and that a portion of the court’s instruction was erroneous. We therefore reverse the order of the Appellate Division.

I

Defendant’s first claim is based upon his absence during part of the proceedings when the jury was impaneled. He was present in the courtroom when the court began the voir dire by asking prospective jurors to respond orally to questions contained in a questionnaire and to follow-up questions posed by the court and counsel. Thereafter, several prospective jurors, at the court’s invitation, went to the bench to speak about matters they did not wish to discuss publicly. The discussions were held on the record and in the presence of counsel, but without defendant. They addressed such matters as whether individual jurors would be able to remain objective despite experiences as crime victims or relationships with people who had been arrested, and whether they thought that defendant was guilty merely because he had been charged with participating in a drug sale. The court also asked at least one juror whether she could objectively assess the testimony of a police officer without being influenced by her friendships with other police officers.

As we have noted before, a defendant has a fundamental right to be present during any material stage of the trial (see, CPL 260.20; People v Turaine, 78 NY2d 871, 872; People v Mullen, 44 NY2d 1, 4-5) and questioning during the impaneling of the jury may constitute a material stage of the trial (see, People v Sloan, 79 NY2d 386; People v Velasco, 77 NY2d 469). A court may conduct side-bar discussions with prospective jurors in a defendant’s absence if the questions relate to juror qualifications such as physical impairments, family obligations and work commitments (see, People v Velasco, 77 NY2d, at 472-473, supra). The court may not, however, explore prospective jurors’ backgrounds and their ability to weigh the evidence objectively unless defendant is present. Defendants are entitled to hear questions intended to search out a prospective juror’s bias, hostility or predisposition to believe or discredit the testimony of potential witnesses and the venire person’s answers so that they have the opportunity to assess the juror’s "facial expressions, demeanor and other subliminal responses” (see, People v Sloan, 79 NY2d, at 392, supra).

By questioning the prospective jurors’ ability to weigh evidence objectively and to hear testimony impartially, the court violated defendant’s right to be present during a material part of the trial. Moreover, because defendant had a fundamental right to be present, his failure to object to being excluded from the side-bar discussions is not fatal to his claim (see, People v Dokes, 79 NY2d 656, 662).

II

Defendant also contends that the court’s charge on reasonable doubt was erroneous. In its main charge, the court instructed the jury that:

"A reasonable doubt is a doubt based upon reason.
It is a doubt for which a juror can give a reason if he or she is called upon to do so in the jury room.
It must be a doubt based upon the evidence or the lack of evidence in this case.”

The court delivered somewhat similar instructions during the jury’s deliberations in an Allen charge (see, Allen v United States, 164 US 492, 501-502):

"You swore that, if you have a reasonable doubt, I repeat, a reasonable doubt, on any relative point or material element or on the evidence or lack of it, and when one or more of your fellow jurors questioned you about it, you would be willing and able to give him what you believe is a fair, calm explanation for your position based upon the evidence or the lack of evidence in this particular case.”

Defendant claims that these instructions deprived him of a fair trial because they unfairly advised the jury that a juror’s doubt about guilt was not "reasonable” unless the juror was able to articulate the basis for it and because the instruction improperly shifted the burden of proof to defendant. We conclude the instruction in the main charge did not suffer from those faults but that the instruction in the Allen charge did. The difference is between a charge which essentially defines the degree of clarity and coherence of thought necessary for the jurors to conclude they harbor a reasonable doubt and one which imposes an affirmative obligation on the juror to specifically articulate the basis for such doubt.

Reasonable doubt, the standard by which criminal guilt or innocence must he determined, is a nebulous concept not susceptible of precise definition. Necessarily, trial courts must use general terms to explain to the jury the important yet subtle difference between a reasonable doubt and one which is based on conjecture or caprice. Nonetheless, the distinction is critical, for the essence of the jury system is the deliberative process by which a number of intellects are brought to bear on assessing and evaluating the evidence presented at trial to arrive at a just verdict. A decision based on a whim or a hunch involves no intellectual effort and the basis for it cannot be expressed to, or evaluated by, fellow jurors and if the system is to work as intended, the jurors must engage in reasoned discussion of the evidence. Thus, it is not surprising, nor improper, for a court to instruct the jury that a reasonable doubt is one for which a reason can be given, nor to augment that definition with an explanation that the doubt should be sufficiently clear so that the juror would be capable of giving a reason for his or her views. Indeed, it is difficult to envision how jurors could follow the manifestly proper instructions of the court to listen to other jurors, give their views careful consideration, and reason together when considering the evidence if none of the individual jurors were able to express the reasons underlying their vote (see, People v Guidici, 100 NY 503, 510). Consequently, for over 100 years we have approved language defining a reasonable doubt as one which a juror could, if called upon to do so, express or articulate (see, People v Malloy, 55 NY2d 296, cert denied 459 US 847; People v Guidici, 100 NY 503, supra; People v Lagroppo, 90 App Div 219, affd 179 NY 126; see also, People v Serrano, 170 AD2d 269, lv denied 77 NY2d 1000; People v Jones, 162 AD2d 204, lv denied 76 NY2d 859; People v Quinones, 123 AD2d 793).

The language used in the Allen charge, however, went beyond permissible bounds by placing on each juror the express duty of giving a "fair, calm explanation for your position”. Manifestly, the burden of proving guilt beyond a reasonable doubt in a criminal proceeding must always remain with the People (see, In re Winship, 397 US 358). An instruction that requires jurors to supply concrete reasons "based upon the evidence” for their inclination to acquit implicitly imposes on defendants the burden of presenting a defense that supplies the jurors with the arguments they need to legitimize their votes (see, State v Cohen, 108 Iowa 208, 78 NW 857, 858; Siberry v State, 133 Ind 677, 685, 33 NE 681). As such, the charge actually reverses the constitutionally required principles that the defense bears no burden and that it is the prosecution that must introduce evidence sufficient to persuade the fact finder, beyond a reasonable doubt, of the defendant’s guilt (see, Pettine v Territory of New Mexico, 201 F 489, 496-497). Consequently, the instruction in the court’s Allen charge violated the Due Process Clauses of both the State and Federal Constitutions. While the instructions contained in the court’s main charge did not constitute reversible error, to avoid error trial courts would be wise if using similarly worded instructions in the future to follow them with a clarifying statement that the jurors have no obligation to articulate the basis for their doubts.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Wachtler and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

Order reversed, etc.