author: Alexander, J. Titone, J.

text:
    The People of the State of New York, Respondent, v Charles Patterson, Appellant.
    Argued September 11, 1991;
    decided November 21, 1991

      POINTS OF COUNSEL

      Robert H. Kirchner for appellant.
    I. The lower courts erroneously failed to suppress Hagenbach’s identification of appellant. (People v Gilbert, 136 AD2d 562; People v London, 124 AD2d 254; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; United States v Hammad, 858 F2d 834; People v Silverstein, 74 NY2d 768; People v Taylor, 73 NY2d 683; People v Crandall, 69 NY2d 459; People v O’Doherty, 70 NY2d 479; People v Gallina, 66 NY2d 52; People v Basilicato, 64 NY2d 103.) II. There was insufficient evidence that appellant stole Hagenbach’s truck in the early morning hours of March 30, 1986. (People v Contes, 60 NY2d 620; People v Kennedy, 47 NY2d 196; People v Jennings, 69 NY2d 103; People v Parker, 96 AD2d 1063.)

      Robert E. Wildridge, District Attorney (Victoria Anthony and Lisa Sapino of counsel), for respondent.
    I. Use of appellant’s photograph does not constitute reversible error. (People v Anderson, 97 Misc 2d 408; Matter of Molineux v Collins, 177 NY 395; Herschel v Dyra, 365 F2d 17, cert denied sub nom. Herschel v Wilson, 385 US 973; People v Dozier, 131 AD2d 587, 70 NY2d 711; People v Gallina, 110 AD2d 847; People v London, 124 AD2d 254, 68 NY2d 1001; People v Gilbert, 136 AD2d 562; People v Lord, 104 Misc 2d 150; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; People v Ford, 110 AD2d 847.) II. The People presented sufficient evidence to support the verdict. (People v Barnes, 50 NY2d 375; People v Cleague, 22 NY2d 363; People v Benzinger, 36 NY2d 29; People v Licitra, 47 NY2d 554; People v Kennedy, 47 NY2d 196; People v Rumble, 45 NY2d 879; People v Rosencrants, 77 AD2d 768; People v Gruttola, 43 NY2d 116; People v Joyiens, 39 NY2d 197; People v Montanez, 41 NY2d 53.)

      Andrew C. Fine for The Legal Aid Society and another, amici curiae.

    The display by police to a witness of a photograph retained in violation of CPL 160.50 after the dismissal of the underlying charges and the ensuing sealing order requires suppression of the resulting identification of defendant. (People v Silverstein, 74 NY2d 768; Matter of Emilio M.,
      37 NY2d 173; People v Bethea, 67 NY2d 364; People v Johnson, 66 NY2d 398; People v Hobson, 39 NY2d 479; People v Sampson, 73 NY2d 908; People v Harris, 48 NY2d 208; People v Payton, 45 NY2d 300, 445 US 573; United States v Crews, 445 US 463; People v Dodt, 61 NY2d 408.)
   OPINION OF THE COURT

Alexander, J.

On this appeal we consider the question of whether suppression of in-court identification testimony is required where there has been a violation of CPL 160.50, to wit: the failure to return defendant’s photograph taken in connection with an unrelated charge which was dismissed and the file ordered sealed, and the subsequent use of that photograph in an identification procedure in relation to defendant’s prosecution in the instant proceeding. We conclude that suppression is not required.

On April 2, 1986, upon viewing a photographic array containing a photograph of defendant, complainant Michael Hagenbach identified defendant as one of the persons who assaulted and robbed him. That photograph had been taken at the time of defendant’s arrest in early 1986 in connection with an unrelated matter which had been dismissed without prejudice and the case file ordered sealed pursuant to CPL 160.50. Despite that sealing order, some two months later the police used the photograph in the array which Hagenbach viewed. Defendant’s ensuing motion to suppress any in-court identification testimony was denied by the trial court because it concluded that the identification procedure was not tainted by the use of the subject photograph in the photo array. The Appellate Division affirmed defendant’s conviction of second degree robbery, holding that use in a photo array of defendant’s photograph retained in violation of CPL 160.50 does not require per se suppression of in-court identification testimony. Leave to appeal was granted by a Judge of this Court.

Defendant argues that the use of his photograph in violation of CPL 160.50 implicated substantial constitutional rights and tainted the identification procedure such as to warrant suppression of any in-court identification testimony by Hagenbach. He argues further that the trial evidence was legally insufficient to support his conviction for robbery. We disagree. Although CPL 160.50 was violated, that violation did not infringe upon any constitutional right of the defendant sufficient to warrant invocation of the exclusionary rule. Furthermore, the trial evidence was sufficient to sustain defendant’s conviction of the crime of robbery.

I

The photograph used in the photo array in this case was obtained from a criminal file which had been ordered sealed some two months earlier. Thus, defendant was entitled to have the photograph returned to him; its retention by the police and use in the photo array violated CPL 160.50. While we find no authorization in that statute for the use in a law enforcement agency’s investigatory procedures of a photograph retained in violation thereof (cf., People v Dozier, 131 AD2d 587, lv denied 70 NY2d 711; People v London, 124 AD2d 254, lv denied 68 NY2d 1001), a statutory violation such as this does not warrant suppression of the identification testimony.

Defendant does not allege that the identification procedure was conducted under impermissible circumstances; he argues only that the use of the challenged photograph was improper and requires suppression. Moreover, he makes no claim that the taking of the photograph originally was in any way illegal. Thus, he does not challenge the reliability of the identification process, as indeed he could not inasmuch as the reliability of that process was unaffected by the use of the photograph. Finally, the violation of the statute does not in any way affect the proceedings to determine defendant’s guilt or innocence of the crimes charged.

Defendant argues, however, and our dissenting colleagues agree, that although no Fourth or Fifth Amendment right is at issue in this case, suppression is nevertheless mandated in order to protect a "substantial right” conferred by CPL 160.50 and to further the underlying purposes of the exclusionary rule. Defendant and the dissent argue that the statute creates a "substantial right” that "relate[s] rather closely” to Fourth Amendment protections. However, a review of the legislative history of CPL 160.50 and related statutes enacted at the same time lead inevitably to the conclusion that the nature of that statutory remedy is unrelated to any Fourth or Fifth Amendment protections. Nor is there any indication that the use of a photograph retained in violation of CPL 160.50 should require suppression in an independent criminal proceeding of otherwise reliable, admissible identification evidence.

A defendant has no inherent or constitutional right to the return of photographs, fingerprints or other indicia of arrest where charges are dismissed (see, Matter of Molineux v Collins, 177 NY 395; see also, People v Anderson, 97 Misc 2d 408, 411). In New York, this entitlement to the return of such items is statutorily conferred by CPL 160.50, which became effective in September of 1976 (L 1976, ch 877, as amended by L 1977, ohs 835, 905). That statute (CPL 160.50), along with CPL 160.60 and Executive Law § 296 (14) (now § 296 [16]) (both of which were enacted at the same time as, and cross-reference CPL 160.50), was enacted as part of an over-all legislative package designed "to protect the rights of individuals against whom criminal charges have been brought, but which did not ultimately result in a conviction” (Governor’s Approval Mem in Support of S 9924-A, 1976 McKinney’s Session Laws of NY, at 2451).

In addition to creating a right to the return of a defendant’s photographs, fingerprints and palmprints, the Legislature made it an unlawful discriminatory practice under Executive Law § 296, except in specified cases, for any person or agency to inquire into or take adverse action in connection with the licensing, employment or providing of credit or insurance to an individual in regard to a favorably terminated criminal action (Executive Law § 296 [16]). Further, in order to restore accuseds "in contemplation of law, to the status [they] occupied before the arrest and prosecution,” CPL 160.60 provides that a favorably terminated criminal prosecution shall not operate as a disqualification "of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling,” and prohibits inquiry into such prosecution, except where authorized by statute or a court (see, People v Gallina, 110 AD2d 847; People v Anderson, 97 Misc 2d 408, 412, supra).

The legislative history of CPL 160.50 does not at all support an intent on the part of the Legislature to create a constitutionally derived right. Rather, the Legislature’s objective in enacting CPL 160.50 and the related statutes concerning the rights of exonerated accuseds was to ensure that the protections provided be "consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law” (Governor’s Approval Mem, 1976 McKinney’s Session Laws of NY, at 2451). Indeed, the over-all scheme of the enactments demonstrates that the legislative objective was to remove any "stigma” flowing from an accusation of criminal conduct terminated in favor of the accused, thereby affording protection (i.e., the presumption of innocence) to such accused in the pursuit of employment, education, professional licensing and insurance opportunities (see, People v Anderson, 97 Misc 2d 408, supra).

Consistent with this objective, the Legislature established procedures, under article 15 of the Executive Law, for the filing and determination of complaints relating to unlawful discriminatory practices based on a previously terminated criminal action (Executive Law § 296 [16]; § 297 et seq.; see also, Anderson v City of New York, 611 F Supp 481 [violation of CPL 160.50 supports 42 USC § 1983 action]). These provisions support the view that the Legislature intended to provide a civil remedy for violation of the provisions of CPL 160.50. Contrary to defendant’s assertions, there is nothing in the history of CPL 160.50 or related statutes indicating a legislative intent to confer a constitutionally derived "substantial right”, such that the violation of that statute, without more, would justify invocation of the exclusionary rule with respect to subsequent independent and unrelated criminal proceedings. Consequently, we conclude that although the statutorily conferred right to the return of one’s photograph serves important purposes and protects important interests, the infringement of that right does not implicate constitutional considerations such as to require the sanction of suppression.

As the dissent notes, we have, in limited circumstances, held that the violation of a statute may warrant imposing the sanction of suppression. However, we have done so only where a constitutionally protected right was implicated, a circumstance not here present (see, e.g., People v Taylor, 73 NY2d 683; People v Gallina, 66 NY2d 52; People v Moselle, 57 NY2d 97). For instance, in Taylor (supra), where there was a failure to comply with the provisions of CPL 690.40 (1), requiring the court to record or summarize on the record an examination made in determining an application for a search warrant, we found suppression appropriate because fundamental Fourth Amendment rights were implicated. We concluded that compliance with the statute was "indispensable to the determination whether the constitutional requirements for a valid search and seizure have been met” (People v Taylor, id., at 690). Similarly, in Gallina (supra), suppression was required where certain wiretap evidence was obtained pursuant to a warrant whose issuance depended on information obtained from a prior wiretap illegally procured in violation of the extension and inactivation requirements of CPL article 700. In Moselle (supra), a constitutionally protected interest was clearly implicated where blood tests were administered without the defendant’s consent or court order in violation of subdivisions (1) and (2) of former section 1194 of the Vehicle and Traffic Law and CPL 240.40.

In each of these instances, the statutory imperative operates directly to protect and preserve a constitutionally guaranteed right of the citizen. By contrast, the right conferred by CPL 160.50 to have one’s photographs returned does not implicate fundamental constitutional interests or considerations.

Moreover, while we have held that an individual’s right to due process is violated by improper access to records sealed pursuant to CPL 160.50 (Matter of Dondi, 63 NY2d 331, 339), we noted that such violation "in itself will not necessarily justify a dismissal of the complaint,” and concluded that dismissal of the complaint therein was warranted because of the existence of other significant factors, in addition to the statutory violation. To require the remedy of suppression for a violation of CPL 160.50, without more, would impermissibly expand the exclusionary rule, and would be inappropriate, particularly where, as here, the violation had no bearing on the reliability of the identification process and no relevance to the determination of defendant’s guilt or innocence at his trial.

The trial court found that the photographic array procedure utilized by the police "was conducted in a lawful manner and was in no way impermissively [sic] suggestive so as to constitute a violation of defendant’s constitutional rights.” Indeed, no claim to the contrary has been raised. Thus, inasmuch as it does not appear that the in-court identification testimony was obtained under circumstances inconsistent with any constitutional rights of the defendant, the technical violation of CPL 160.50 does not warrant suppression of the identification testimony.

II

Defendant’s contention that the evidence was legally insufficient to sustain his conviction for robbery in the second degree is without merit. The Appellate Division found, upon its factual review, that the trial evidence was legally sufficient to sustain defendant’s conviction for robbery in the second degree. We agree. Viewing that evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we conclude that it provided a sufficient basis upon which the jury could rationally conclude that defendant and his codefendant forcibly deprived Hagenbach of the use of his truck and caused him physical injury (see, Penal Law § 160.10 [2] [a]).

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

Titone, J.

(dissenting). The majority asserts, conclusorily, that the elements of a robbery were established, and the Court further holds that the police’s use of a photograph that should have been sealed to obtain an identification of defendant did not give rise to reversible error. Inasmuch as the former conclusion is not supported by the record and the latter conclusion is inconsistent with sound policy and precedent, we dissent.

Since the underlying facts are not apparent from the majority’s opinion, a summary of the background and the People’s evidence is necessary. According to the victim, Michael Hagenbach, he first encountered defendant and the codefendant, Gordon Thompson, on the evening of March 29, 1986, while driving away from his friend’s home in the City of Syracuse. Hagenbach spoke briefly with defendant and Thompson about going out with them to drink some beer. Suddenly, Thompson jumped into Hagenbach’s truck and pushed Hagenbach into the passenger seat while defendant entered on the driver’s side and drove the truck to the Onondaga Indian Reservation, where Thompson and defendant, as well as Hagenbach’s present girlfriend Arlette Thomas, resided. Hagenbach thought it was "all a big joke” and, consequently, was not frightened. The three men drank beer outside Arlette Thomas’s home, with several others, for a while. Hagenbach then returned to his vehicle and continued to drink alone.

At some point, Thompson entered Hagenbach’s truck and, without provocation, grabbed him around the neck. Defendant and Thompson punched him and threw him on the ground, taking his wallet and demanding money and the keys to his truck. Hagenbach, however, had stuffed the keys down into the truck seat during the earlier part of the struggle. His assailants released him when he promised that he would retrieve the keys, but he instead immediately ran into the woods.

Hagenbach emerged from the woods early the next morning when he thought that no one was around. When he got into his truck and tried to find his keys, he noticed that the dashboard had been damaged and that the ignition and speakers had been torn out. While he was trying to start the truck by "hot wiring” it, Hagenbach saw Thompson and defendant come toward him. They first tried unsuccessfully to persuade Hagenbach to come out of the truck. Hagenbach finally emerged from the truck when the two men threatened him with an axe. According to Hagenbach, defendant and Thompson punched him and hit him with the blunt part of an axe, saying "[t]his is what a white boy gets for being on the Onondaga Reservation.”

Hagenbach eventually fell into unconsciousness. He was beginning to revive when he heard defendant and Thompson telling a third person who had approached in a three-wheeled vehicle that there had been an accident. Hagenbach took this opportunity to flee to a nearby house, where he telephoned for help. Hagenbach was taken to the hospital for treatment. The police subsequently found his truck outside Arlette Thomas’s house.

At the trial, defendant took the position that Hagenbach was mistaken in his identification of him and that the second assailant was, in fact, defendant’s younger cousin Brian Patterson. According to defendant, he had been drinking with his younger cousin, Brian Patterson, and several others most of the day, until Brian passed out. Hagenbach arrived at the reservation at about 7:00 p.m. with a case of beer in the back of the truck. Some time shortly thereafter, defendant, who was drunk and tired, went into the house to find llene Thomas, his girlfriend, and then went to sleep.

Both the codefendant, Thompson, and Brian Patterson gave testimony that supported the defense theory. Thompson testified that defendant had gone to bed shortly after Hagenbach had arrived at the reservation. Thompson, who did not like Hagenbach, told him to leave and, when Hagenbach could not get his truck started, told him to go to a gas station. Thompson then drank some beer and went to sleep. He awoke to the sound of Hagenbach trying to start his truck. He and defendant’s cousin Brian Patterson went outside and became embroiled in a fist fight with Hagenbach after the latter used racial epithets. According to Thompson, Hagenbach ran away as a three-wheeled vehicle approached. Brian Patterson gave substantially the same account of events.

On the basis of this evidence, the jury acquitted defendant of all the indictment counts that were submitted in connection with the events that occurred on the evening of March 29, 1986. He was convicted of only one crime, second degree robbery (Penal Law § 160.10 [2]), which, as charged to the jury, required the People to prove that on March 30, 1986 he and Thompson forcibly stole Hagenbach’s truck. Notably, the court had instructed the jury that it should consider the events of March 29th and March 30th to be two separate incidents. Following the Appellate Division’s affirmance of his conviction, defendant appealed to this Court.

I.

The majority concludes that the trial evidence was legally sufficient to sustain the robbery count of which defendant was convicted, but, apart from an unadorned assertion that the trial evidence "provided a sufficient basis” for the conviction, the majority has not troubled to identify either the evidence supporting the robbery charge or a viable theoretical basis for finding the defendants guilty of that crime. Certainly, an affirmance cannot be based on the premise that defendant stole Hagenbach’s truck by damaging it and thereby reducing its value, since, as the trial court stated, defendants were "simply not charged with” damaging the truck and such a theory was "not part of the case.” Yet, if this theory is subtracted, there is little, if any, other ground to support the essential theft element of the robbery charge (see, Penal Law § 160.00 ["(r)obbery is forcible stealing”]), since no "taking” of the truck was proven.

A person steals property "when, with intent to deprive another of property or to appropriate the same to himself * * * he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05 [1]). At a minimum, the underscored element of larceny and robbery requires a showing that "the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner’s continued rights” (People v Jennings, 69 NY2d 103, 118). While actual "asportation” of the property need not be proven in a case involving the alleged theft of a vehicle, there must be some proprietary act taken by the accused in connection with the property to establish a taking. Thus, in People v Alamo (34 NY2d 453, 455-458), the Court concluded that the thief had sufficiently "taken command” of the vehicle when he entered it, closed the door, turned the lights on and started it before he was intercepted by the police. Similarly, in People v Robinson (60 NY2d 982), the Court held that a "taking” of the parts of a car was complete when the car itself, with its parts, was removed from its owner’s premises, even though the parts may not yet have been severed from the vehicle. Here, in contrast, there is absolutely no evidence that defendant or Thompson exercised any "dominion and control” whatsoever over Hagenbach’s truck on the morning of March 30th.

According to Hagenbach’s version of events, defendant and Thompson accosted him as he was trying to start his truck, threatened him with an axe until he stepped outside and then beat him into unconsciousness. By his own admission, Hagenbach ran away when he revived and saw an opportunity to escape, thereby abandoning the truck. Nothing in the otherwise reprehensible conduct described by Hagenbach even remotely suggests an attempt by the two assailants to take control of the truck. Indeed, the only movements that either of the assailants made in the direction of the truck were the menacing gestures appellant allegedly made with the axe. As is evident from Hagenbach’s own statements, however, these gestures were, if anything, calculated to gain "dominion and control” over Hagenbach’s person, not his truck.

Furthermore, there was no evidence of any efforts by defendant or Thompson to take control of the truck after Hagenbach ran away and left it behind. To the contrary, when the authorities went to the reservation to investigate, they found the truck in Thomas’s yard, where Hagenbach had left it. Defendant’s inaction when he had every opportunity to take control of and appropriate the truck to himself belies any serious argument that he was acting with larcenous intent. In sum, while the accuseds’ conduct on the preceding evening might have supported an attempted robbery charge, the evidence did not support the charge of which they were convicted, i.e., robbing Hagenbach of his truck on the morning of March 30, 1986. Accordingly, the judgment should have been reversed and the indictment dismissed.

II.

Even if there were evidentiary support for the second degree robbery charge, there would still have to be reversal and a retrial because of the manner in which the police initially obtained an identification from Hagenbach through the use of a photograph from a prior arrest, which should have been returned to defendant pursuant to an order issued under CPL 160.50. In upholding defendant’s conviction despite this gross violation of law, the majority has explicitly rejected the People’s primary contention, i.e., that CPL 160.50 was not intended to preclude the "investigative use” of sealed records and photographs, and has instead held that the police’s retention and use of defendant’s photograph violated the statute (see, majority opn, at 714; see also, Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662). Nonetheless, despite its rejection of the People’s main argument, the majority holds that no remedy for the wrong is required. Its analysis is unconvincing.

The majority begins with the unobjectionable, but irrelevant, observations that the photograph was not initially obtained in an illegal manner, that the reliability of Hagenbach’s identification of defendant’s photograph is not challenged and that the violation of CPL 160.50 did not impair the truth-seeking process (majority opn, at 714; see also, majority opn, at 718). The majority also stresses, again without apparent relevance, that the statutory violation occurred in a criminal proceeding that was unrelated to the earlier criminal proceeding in connection with which the photograph was originally obtained (majority opn, at 713, 715). Having thus disposed of several "straw men” of its own invention, the majority then turns to the only salient question presented: whether the right conferred by CPL 160.50 is so substantial and so closely related to identifiable constitutional guarantees that the remedy of suppression should be invoked as a means of redressing violations.

On this question, the determinative legal principles are clear. This Court only recently held that suppression is an appropriate remedy for a statutory violation when the violated statute’s purpose is to implement a constitutional guarantee (People v Taylor, 73 NY2d 683). While insubstantial violations of procedural statutes or violations of statutes that are unrelated to constitutional goals need not lead to suppression (see, e.g., People v Silverstein, 74 NY2d 768, cert denied 493 US 1019; People v Harris, 48 NY2d 208, 216; People v Payton, 45 NY2d 300, 314-315, revd on other grounds 445 US 573; Matter of Emilio M., 37 NY2d 173), we have not hesitated to suppress for nonconstitutional statutory wrongs where important privacy interests of citizens were implicated (see, e.g., People v Taylor, supra; People v Gallina, 66 NY2d 52; People v Moselle, 57 NY2d 97, 109). Moreover, it has been recognized that the exclusionary rule may fairly be invoked to remedy statutory violations "when the provision in question confers a substantial right, especially if it is one which can be said to relate rather closely to Fourth Amendment protections” (1 La Fave and Israel, Criminal Procedure § 3.1 [e], at 146; see also, People v Dyla, 142 AD2d 423, 438-439 [suggesting distinction between statutes which are designed to protect substantial privacy interests and statutes which are not]; Dix, Exclusionary Rule Issues as Matters of State Law, 11 Am J Crim L 109, 133). Another obvious consideration in deciding whether to apply the exclusionary rule is the value of and need for that remedy as a means of enforcing the statutory prohibition.

When viewed in light of these criteria, the majority’s refusal to invoke the suppression remedy in this context reflects an overly restrictive application of the law. Although the majority insists that CPL 160.50 was not designed "to create a constitutionally derived right” (majority opn, at 716), its assertion is belied by its own acknowledgment that the statute was specifically designed to protect the constitutionally derived presumption of innocence by ensuring that "one who is charged but not convicted of an offense suffers no stigma as a result of his having once been the object of an unsustained accusation” (Matter of Hynes v Karassik, 47 NY2d 659, 662-663; accord, Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d, at 668, supra; Governor’s Approval Mem, 1976 McKinney’s Session Laws of NY, at 2451; Bill Jacket, L 1976, ch 877, Sponsors’ Mem in Support of S 9924-A [per Senator Pisani and Assemblymen Fink and Blumenthal], at 2 [bill "would make presumption of innocence more of a reality”]; see, majority opn, at 716). Further, although the majority describes the gist of this Court’s recent decisions invoking the exclusionary rule for statutory violations that "implicate” constitutional rights (majority opn, at 716-717), it never explains why, in contrast to the result in those cases, the constitutional presumption of innocence that CPL 160.50 "implicates” is not similarly deserving of the protection afforded by the remedy of suppression. Instead, it merely asserts, in conclusory fashion, that the rights conferred by CPL 160.50 do not "implicate fundamental constitutional interests or considerations” (majority opn, at 717) and are not "such as to require the sanction of suppression” (majority opn, at 716). Certainly, the conclusion of the Court in Matter of Dondi (63 NY2d 331, 339 [emphasis supplied]) that a violation of CPL 160.50 "in itself will not necessarily justify a dismissal of the complaint [in an attorney disciplinary proceeding]” has no analytical bearing on the entirely separate question of whether the lesser remedy of suppression is appropriate. Thus, the majority’s unexplained reference to the Dondi opinion is, at best, unconvincing.

The majority’s refusal to accord legal significance to the constitutional considerations that underlie the statute is particularly surprising, since it is plain that the statutory requirement of confidentiality also implicates the Fourth Amendment to the United States Constitution. Even without a statute like CPL 160.50 mandating sealing of records and return of photographs, courts of other jurisdictions have held that, under some circumstances, expungement of police records following the dismissal of the charges may be required as a means of effectuating the constitutional rights to privacy, as well as the presumption of innocence (Utz v Cullinane, 520 F2d 467, 478-483; Davidson v Dill, 180 Colo 123, 503 P2d 157; see also, Matter of Henry v Looney, 65 Misc 2d 759 [Wachtler, then J.]; see generally, Leedom, Removing the Stigma of Arrest: The Courts, The Legislatures and Unconvicted Arrestees, 47 Wash L Rev 659; Comment, Maintenance and Dissemination of Criminal Records: A Legislative Proposal, 19 UCLA L Rev 654, 657-664). Further, in Anderson v City of New York (611 F Supp 481), which the majority has itself cited, the court thrice recognized that CPL 160.50 was designed to protect "reputation and privacy interests by controlling the physical location of the photographs and fingerprints” (611 F Supp, at 490 [emphasis supplied]; see, id., at 488). Significantly, where statutory rights implicating the Fourth Amendment guarantees have been violated, this Court has not hesitated to apply the exclusionary rule to remedy violations (see, People v Taylor, 73 NY2d 683, supra; People v Gallina, 66 NY2d 52, supra).

The majority’s analysis is also lacking because it fails to consider the substantiality of the harm suffered by individuals whose rights under CPL 160.50 have been disregarded. Where the individual’s confidentiality rights are not protected, " '[opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration’ ” (Matter of Henry v Looney, supra, at 762, quoting Menard v Mitchell, 430 F2d 486, 490). Additionally, materials retained from a prior arrest may be "employed as a basis * * * to subsequently suspect, harass or otherwise penalize” the released arrestee (Matter of Henry v Looney, supra, at 762). The unauthorized retention and use of arrest photographs and fingerprints is particularly pernicious because, as occurred here, they form the basis of a new criminal investigation, subjecting the individual to the attendant humiliation and discomfort. Thus, there can be no doubt that violations of the statutory command result in impairments of constitutional rights that are both real and substantial.

Finally, the majority’s discussion of the problem presented here is incomplete because it fails to recognize the exclusionary rule as an important means of enforcing CPL 160.50’s mandate. The central function of the exclusionary rule is to provide a deterrent to official misconduct. To the extent that the majority has overlooked this critical purpose and instead focused on the impact of the CPL 160.50 violation on the reliability of the identification, the fairness of the trial and the defendant’s guilt or innocence, its analysis is, quite simply, irrelevant. Similarly, the majority’s reliance on the availability of a civil remedy under article 15 of the Executive Law is, at best, puzzling, since the rights conferred by the relevant provisions of that article are restricted to the improper use of sealed criminal records, photographs and fingerprints "in connection with the licensing, employment or providing of credit or insurance” (Executive Law § 296 [16]). The Executive Law’s civil remedy is thus of no value where remedy is most needed, i.e., the misuse of sealed records for law enforcement purposes.

The majority’s apparent lack of concern for the deterrent function of the exclusionary rule is particularly disturbing in this context because of the patent and pressing need to stimulate law enforcement authorities’ compliance with the dictates of CPL 160.50. The record in this case reveals that the Onondaga County Sheriff’s Department had taken no steps to ensure that the photographs it possessed and displayed for identification purposes were not from sealed files. Similarly, the court in Anderson v City of New York (611 F Supp 481, 492, supra), expressed skepticism about the New York City Police Department’s vigilance in ensuring compliance with CPL 160.50 in view of the facts that two sealing orders in the defendant’s case had been ignored, the codefendant’s photographs had not been returned despite the existence of a sealing order and the parties had cited "numerous [other] cases involving unreturned photographs.” The widespread disregard of the statute is also reflected in a recent study conducted by the State Comptroller’s office, which indicates that in a significant percentage of cases sealing orders issued by courts were not included in the individual "criminal history” database maintained by the Division of Criminal Justice Services, which provides information, including fingerprints, to law enforcement agencies State-wide (Off of St Comp, Performance Audit Report 89-S-16, Division of Criminal Justice Services: Criminal Records, at 4-7 [1991]). An equally shocking conclusion was drawn in a recent legislative document, which asserts: "In reality, the majority of cases that are supposed to be sealed pursuant to the current statute are not. Often, the court fails to enter a sealing order * * * Furthermore, even when a judge specifically orders an arrest sealed, the proper paperwork may not reach the Division of Criminal Justice Services so that the record will in fact be sealed” (Assembly Mem in Support of A 2522, at 1-2 [1991]).

In short, whether the cause is deliberate disobedience or careless disregard of the statutory command, there is ample ground to be concerned about a State-wide pattern of "inattention to [CPL 160.50’s] requirements” that can only be addressed through the application of the exclusionary rule (see, Matter of Emilio M., supra, at 177). Indeed, the disincentive to disobedience that the exclusionary rule provides is needed to counterbalance the built-in incentive that law enforcement authorities have to disregard the statute and retain arrestees’ photographs as a means of simplifying their investigative process. Regrettably, there is nothing in the majority’s perfunctory treatment of this important issue that suggests a possible alternative approach to improving law enforcement’s compliance with CPL 160.50. To the contrary, I fear that the majority’s dismissal of the infraction here as a mere "technical” violation not warranting suppression (majority opn, at 718) may serve as a signal to some that they may continue to violate these important statutory guarantees with impunity.

For all of these reasons, I would apply the suppression rule here. Application of the exclusionary rule is particularly meaningful in this context because it would implement the legislative goal of "restoring the accused] * * * to the status he occupied before the arrest and prosecution” (CPL 160.60 [companion provision]).

Suppression of the wrongfully obtained photographic identification would necessarily lead to reversal and retrial in this case, since there was no Wade hearing inquiry into the "independent source” for Hagenbach’s in-court identification testimony and, consequently, the admission of that testimony must be deemed reversible error (see, People v Burts, 78 NY2d 20). Moreover, the error cannot be dismissed as harmless because, although there were several witnesses to the melee on the preceding evening, Hagenbach was the only witness to identify defendant as a participant in the March 30th assault. Inasmuch as the assailant’s identity was very much in issue, Hagenbach’s identification testimony was crucial and the error in its admission requires reversal.

Chief Judge Wachtler and Judges Simons and Bellacosa concur with Judge Alexander; Judge Titone dissents and votes to reverse in a separate opinion in which Judge Kaye concurs; Judge Hancock, Jr., taking no part.

Order affirmed.

      . CPL 160.50 provides, in pertinent part:
      "Upon the termination of a criminal action or proceeding against a person in favor of such person * * * * unless the district attorney * * * demonstrates to the satisfaction of the court that the interests of justice require otherwise * * * the court wherein such criminal action or proceeding was terminated shall enter an order, which shall immediately be served by the clerk of the court upon the commissioner of the division of criminal justice services and upon the heads of all police departments and other law enforcement agencies having copies thereof, directing that:
      "(a) every photograph of such person and photographic plate or proof, and all palmprints and fingerprints taken or made of such person pursuant to the provisions of this article * * * shall forthwith be returned to such person, or to the attorney who represented him at the time of the termination of the action or proceeding”.

      . Our holding here is consistent with the underlying premise of the Dondi decision. In Dondi, we implicitly held that a violation of CPL 160.50, standing alone, was insufficient to require the drastic remedy of dismissal of the complaint — a remedy which would preclude further prosecution. Similarly, in the context of a criminal prosecution, imposition of the severe sanction of suppression often results in an inability to successfully proceed with prosecution of the defendant.

       Hagenbach knew Thompson fairly well, but was not acquainted with defendant, although he believed he had seen him once in a bar.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    Roberta Rinaldo et al., Appellants, v Arthur McGovern, Respondent, et al., Defendants.
    Argued October 16, 1991;
    decided November 21, 1991

      POINTS OF COUNSEL

      John Humann for appellants.
    I. Plaintiffs, as travelers on a public highway, are entitled to be protected against acts on private premises which cause projectiles to come on to the public highway. (Gleason v Hillcrest Golf Course, 148 Misc 246; Jenks v McGranaghan, 30 NY2d 475; Nussbaum v Lacopo, 27 NY2d 311; Noe v Park Country Club, 115 AD2d 230; Tinker v New York, Ontario & W. Ry. Co., 157 NY 312; Town of Albion v Ryan, 201 App Div 717; Palsgraf v Long Is. R. R. Co., 248 NY 339; Munsey v Webb, 231 US 150; Condran v Park & Tilford, 213 NY 341; Robert v United States Shipping Bd. Emergency Fleet Corp., 240 NY 474.) II. Summary judgment is a drastic remedy and should not be granted where there are issues of credibility or even a color of a triable issue. (Sillman v Twentieth Century-Fox Film Corp., 30 NY2d 395; Robinson v Strong Mem. Hosp., 98 AD2d 976; Goldstein v County of Monroe, 77 AD2d 232; Ugarriza v Schmeider, 46 NY2d 471; Callari v Pellitieri, 130 AD2d 935.)

      Chris G. Trapp for respondent.
    I. No duty existed to appellant. (Gleason v Hillcrest Golf Course, 148 Misc 246; Nussbaum v Lacopo, 27 NY2d 311; Jenks v McGranaghan, 30 NY2d 475; Noe v Park Country Club, 115 AD2d 230; Traumann v City of New York, 208 Misc 252.) II. Solely a question of law was presented. III. Summary judgment shall be granted where there is no issue of fact sufficient to require a trial. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Zuckerman v City of New York, 49 NY2d 557; Fried v Bower & Gardner, 46 NY2d 765; Alvord & Swift v Muller Constr. Co., 46 NY2d 276; Platzman v American Totalisator Co., 45 NY2d 910; Andre v Pomeroy, 35 NY2d 361.)
   OPINION OF THE COURT

Titone, J.

The issue in this appeal is whether a golfer who accidentally misses the fairway and instead sends the ball soaring off the golf course onto an adjacent roadway can be held liable in negligence for the resulting injury. Under the circumstances of this case, we hold that the defendant golfer incurred no tort liability for what amounted to nothing more than his poorly hit tee shot.

The present action arises out of an accident in which a golf ball driven by one of the two individual defendants soared off the golf course on which they were playing, traveled through (or over) a screen of trees and landed on an adjacent public road, where plaintiffs happened to be driving their automobile. The ball struck and shattered plaintiffs’ windshield, with the result that plaintiff Roberta Rinaldo was injured. It is undisputed that both defendants, who were teeing off at the eleventh hole of the golf course, intended to drive their balls straight down the fairway and not in the direction of the trees. However, each defendant "sliced” his ball, causing it to veer off to the right. There is no evidence that either defendant was careless or guilty of anything other than making an inept tee shot.

Plaintiffs commenced the present action charging the individual defendants with negligence and failure to warn. On defendants’ motion for summary judgment, the Supreme Court, Erie County, dismissed both causes of action, holding that defendants had no duty to warn plaintiffs of their impending tee shots and that defendants’ conduct in mishitting their golf balls did not, without more, constitute actionable negligence. The Appellate Division affirmed, with two Justices dissenting. This appeal ensued (see, CPLR 5601 [a]). Plaintiffs also sued the operator of the golf course, Springville Country Club, Inc. By consent order dated May 6, 1991, plaintiffs’ appeal with respect to this defendant, as well as to the individual defendant Donald Vogel, was discontinued. Accordingly, the only question before us now is the liability of the other individual defendant, Arthur McGovern.

In general, a golfer preparing to drive a ball has no duty to warn persons "not in the intended line of flight on another tee or fairway” (Jenks v McGranaghan, 30 NY2d 475, 479; see generally, Annotation, Liability to One Struck by Golf Ball, 53 ALR4th 282). Even more to the point, whatever the extent of a golfer’s duty to other players in the immediate vicinity on the golf course (see, Johnston v Blanchard, 301 NY 599), a golfer ordinarily may not be held liable to individuals located entirely outside of the boundaries of the golf course who happen to be hit by a stray, mishit ball (see, Nussbaum v Lacopo, 27 NY2d 311, 318).

In Nussbaum v Lacopo (supra), we considered the liability of a golfer for failing to warn the occupant of a nearby residence before driving his golf ball. In rejecting the injured resident’s claim, we noted that the duty to warn "is imposed to prevent accidents” and that no such duty should be imposed where "the relationship between the failure to warn and [the] plaintiff’s injuries is tenuous” (id., at 318). We concluded that imposing a duty to warn would be futile under the circumstances presented in Nussbaum because "[l]iving so close to a golf course, plaintiff would necessarily hear numerous warning shouts each day * * * [and, consequently,] could be expected to ignore them” (id., at 318).

Plaintiffs contend that the analysis in Nussbaum is inapplicable to . this case because the Nussbaum Court specifically stated that "one who chooses to reside on property abutting, a golf course is not entitled to the same protection as the traveler on the public highway” (id., at 316 [emphasis supplied]), thereby suggesting that individuals in the latter class are entitled to special protection. Although plaintiffs, who were innocent travelers, hope to benefit from this distinction, their argument on this point is meritless. The dictum on which plaintiffs rely appears in the section of the Court’s opinion dealing with the liability of the golf course for nuisance and negligent design. Whatever its legal significance in that category of cases, this dictum has no bearing on the viability of a claim such as this one, which was brought against an individual golfer on the basis of an alleged failure to warn.

Instead, the pertinent question here, as in Nussbaum, is whether a warning, if given, would have been effective in preventing the accident. We conclude that, under the circumstances of this case, a warning would have been all but futile, albeit for a somewhat different reason than in Nussbaum. Even if defendant had shouted "fore”, the traditional golfer’s warning, it is unlikely that plaintiffs, who were driving in a vehicle on a nearby roadway, would have heard, much less had the opportunity to act upon, the shouted warning. Accordingly, just as was true in Nussbaum, the possibility that a warning would have been effective here to prevent the accident was simply too "remote” to justify submission of the case to the jury (id., at 318).

Plaintiffs’ cause of action based on the claimed negligence of the defendant golfer is similarly untenable. Although the object of the game of golf is to drive the ball as cleanly and directly as possible toward its ultimate intended goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in the game. Contrary to the view of the dissenters below, the presence of such a risk does not, by itself, import tort liability (see, 167 AD2d 942, 944 [Callahan, J. P., and Balio, J., dissenting]). The essence of tort liability is the failure to take reasonable steps, where possible, to minimize the chance of harm. Thus, to establish liability in tort, there must be both the existence of a recognizable risk and some basis for concluding that the harm flowing from the consummation of that risk was reasonably preventable.

Since " 'even the best professional golfers cannot avoid an occasional "hook” or "slice” ’ ” (Jenks v McGranaghan, supra, at 479, quoting Nussbaum v Lacopo, supra, at 319), it cannot be said that the risk of a mishit golf ball is a fully preventable occurrence. To the contrary, even with the utmost concentration and the "tedious preparation” that often accompanies a golfer’s shot (see, Nussbaum v Lacopo, supra, at 319), there is no guarantee that the ball will be lofted onto the correct path. For that reason, we have held that the mere fact that a golf ball did not travel in the intended direction does not establish a viable negligence claim (Jenks v McGranaghan, supra, at 479). To provide an actionable theory of liability, a person injured by a mishit golf ball must affirmatively show that the golfer failed to exercise due care by adducing proof, for example, that the golfer "aimed so inaccurately as to unreasonably increase the risk of harm” (Nussbaum v Lacopo, supra, at 319).

No such proof was adduced here. In response to defendants’ motion for summary judgment, plaintiffs submitted nothing more than the affidavit of a golf pro explaining that "slicing” is a common problem among inexperienced and experienced golfers alike and a deposition statement by defendant Vogel to the effect that his codefendant, McGovern, had such a problem. At most, this evidence, if ultimately proven to be true, would establish only what is obvious — that if one or both defendants teed off from the eleventh hole, there was a risk that one or both of their golf balls would travel off to the right in the direction of the road rather than the direction of the fairway. Plaintiffs’ evidence did not, however, support the other element of the cause of action essential to plaintiffs’ recovery, i.e., that defendant’s actions with respect to this risk were negligent. Hence, plaintiffs’ cause of action based on defendant’s purported lack of due care was properly dismissed.

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

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

Order affirmed, with costs.


author: Bellacosa, J. Kaye, J.

text:
    Patricia B. Blackmon et al., Respondents, v Estate of Elizabeth T. Battcock, Deceased, et al., Defendants, and Salesians of St. John Bosco (New Rochelle) et al., Appellants.
    Argued November 21, 1991;
    decided December 19, 1991

      POINTS OF COUNSEL

      Frank C. McLaughlin, Jr., and Myron J. Meadow for appellants.
    I. It was error for the court below to nakedly imply in fact into the stipulation a proscription against Totten trust accounts where, as here, strict proof consisting of clear and convincing evidence is required. (Oliver v Wells, 254 NY 451; Miller v Schloss, 218 NY 400; Ferber v Sterndent Corp., 51 NY2d 782; Zuckerman v City of New York, 49 NY2d 557; Oursler v Armstrong, 10 NY2d 385; Wallace v Wallace, 216 NY 28; Matter of Klein, 114 AD2d 848; Taylor v Higgs, 202 NY 65; Rubin v Irving Trust Co., 305 NY 288; Tracy v Danzinger, 253 App Div 418.) II. To imply in fact a proscription against trust accounts from the conduct of the parties would violate the applicable Statute of Frauds because such a proscription is a material term which must be in writing. (Behrman v Peoples Camp Corp., 30 AD2d 973, 25 NY2d 920.) III. The creation of Totten trust accounts by the late Mrs. Battcock did not defeat the purpose of the stipulation of settlement which was the settlement of Mrs. Battcock’s right of election claim for $3,600 in exchange for her agreement not to change her will which does no more than leave plaintiffs-respondents her residuary estate. (Schwartz v Horn, 31 NY2d 275; Matter of Goldberg, 275 NY 186; Oliver v Wells, 254 NY 451.) IV. The promisor, in an agreement such as that in this controversy, disables herself only from making an inconsistent testamentary disposition and the creation of trust accounts is not a testamentary disposition. (Kaplan v Kaplan, 284 App Div 972.)

      David Otis Fuller, Jr., for respondents.
    I. Elizabeth Battcock breached her written agreement not to change her will when she set up Totten trusts for beneficiaries not named in her will. (Schwartz v Horn, 31 NY2d 275; Matter of Pasquariello, 11 NY2d 864; Rastetter v Hoenninger, 214 NY 66; Matter of Hassan, 98 Misc 2d 80; Matter of Nelson, 200 Misc 3; Matter of Totten, 179 NY 112; Matter of Miller, 84 Misc 2d 807; Kaplan v Kaplan, 284 App Div 972.) II. The Statute of Frauds does not prohibit the finding of implied provisions in written agreements concerning wills. (Cohan & Co. v Russell, 23 NY2d 569; Matter of Wosnitzer, 47 AD2d 402, 37 NY2d 919; Bensons Plaza v Great Atl. & Pac. Tea Co., 44 NY2d 791; Manson v Curtis, 223 NY 313; Bray Terms. v Grand Union Co., 74 AD2d 965; Matter of Wiggins, 45 AD2d 604, 39 NY2d 791; Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1; Hegeman v Moon, 131 NY 462; Sutton v East Riv. Sav. Bank, 55 NY2d 550.)
   OPINION OF THE COURT

Bellacosa, J.

Decedent, Elizabeth Battcock, agreed in 1971 as part of a settlement of her deceased husband’s estate not to change a will she had executed in 1969. Her daughter and grandchildren claim that she breached the settlement agreement by subsequently creating Totten trust accounts for beneficiaries not named in that will. The religious and charitable beneficiaries of the disputed trust accounts appeal, arguing that the Appellate Division erred in holding that the trust accounts violated the 1971 settlement agreement. We hold that the agreement, which did not expressly prohibit the creation of Totten trusts, does not impliedly create such a restriction on the decedent’s actions during her lifetime. The order of the Appellate Division, which is before us by leave of that court, should be reversed and the order of the Surrogate’s Court should be reinstated.

Elizabeth Battcock’s husband died in 1971, leaving her $1 in his will; the remainder was left to their two children, Gregory Battcock, now deceased, and plaintiff Patricia Battcock Blackmon. Elizabeth Battcock elected against her husband’s will and then settled with the estate, agreeing to accept $3,600 (12%) of his estate in full settlement of all her claims. In return, she promised to "leave intact and without change” her Last Will and Testament dated December 1, 1969 (1969 will). No mention was made of Totten trusts, trust accounts, inter vivas transfers or gifts of any kind. Decedent’s 1969 will bequeathed a sum of money to a church in Yonkers and to a friend, with the residue and remainder to her two children, or to her grandchildren per stirpes in the event her children predeceased her. .

Decedent’s son died without issue in 1980. During the years following his death, she opened bank accounts — Totten trusts (see, EPTL 7-5.2) — in her own name, in trust for various charities, including the appellants Salesians of St. John Bosco (New Rochelle), Church of the Immaculate Conception, and the Salvation Army (Yonkers Branch). She also made two new wills — in 1982 and 1984 — in which she expressly excluded her daughter and her grandchildren. Following decedent’s death in September 1985, with plaintiffs’ consent, her 1982 will was admitted to probate and letters testamentary were issued. The two subsequently executed wills themselves are not in controversy in this litigation and have no direct relevance or dispositional significance.

Plaintiffs — decedent’s daughter and her children — instituted this action by verified complaint in Supreme Court (later transferred to Surrogate’s Court), seeking a declaration that the Totten trusts violated the 1971 agreement. They sought an order enjoining the bank from paying out the trust accounts to the named beneficiaries. The Totten trust beneficiaries moved for summary judgment on Statute of Frauds grounds. The Surrogate’s Court denied plaintiffs’ motion and granted the beneficiaries’ motion. The Surrogate concluded that the Statute of Frauds precluded reading into the 1971 agreement an implied prohibition against the creation of Totten trust accounts, and directed the depository banks to pay out the account balances to the named beneficiaries.

The Appellate Division reversed, holding that a promise not to create Totten trusts must be implied into the settlement agreement promising not to change the existing will. The court reasoned that such a construction was necessary to prevent defeat of the primary purpose of the agreement. The implied promise was deemed also to be in the stipulation in satisfaction of the Statute of Frauds (168 AD2d 590). Justice Lawrence dissented, urging that in the absence of an express provision in the settlement agreement precluding the creation of Totten trust accounts, no basis exists for judicially inferring such a promise (168 AD2d, at 592, supra). We agree with the conclusion reached by the Surrogate and the dissenting Justice and therefore reverse the order of the Appellate Division and reinstate the order of the Surrogate’s Court granting summary judgment in favor of the appellants — the Totten trust beneficiaries.

We begin with the fundamental proposition that a will is ambulatory in nature and is ordinarily revocable during the life of the testator (EPTL 1-2.18 [a]; Tutunjian v Vetzigian, 299 NY 315, 319; Matter of Goldberg, 275 NY 186, 193; Edson v Parsons, 155 NY 555, 568). Even after due execution of a will, testators also retain unfettered authority to dispose of all property during their lifetimes (Matter of Fabbri, 2 NY2d 236, 239). Individuals may by agreement, however, validly surrender their power of revocation (Oursler v Armstrong, 10 NY2d 385, 389; Tutunjian v Vetzigian, 299 NY 315, 319, supra; Edson v Parsons, 155 NY 555, 567, supra). On the other hand, the law strictly scrutinizes the renunciation of the right to revoke a will and requires a threshold showing of clear and unambiguous evidence to give effect to this surrender of rights (Oursler v Armstrong, 10 NY2d 385, 389, 392, supra; see, Rubenstein v Mueller, 19 NY2d 228, 232).

In this case, the 1971 settlement agreement signed by decedent in which she agreed not to change her 1969 will clearly satisfied the Statute of Frauds requirement as to that singular promise. Significantly, however, the 1971 agreement is silent regarding other forms and methods of alienation of property. When Elizabeth Battcock deposited money in the disputed bank accounts for the designated beneficiaries, she established revocable savings account trusts, commonly known as Totten trusts (EPTL 7-5.2; Matter of Totten, 179 NY 112). Beneficiaries enjoy only expectancy interests and not vested legal rights (EPTL 7-5.2). In this case, "title to the funds [vested] in the beneficiaries] free and clear of the trust” on the death of Elizabeth Battcock (EPTL 7-5.2 [2], [4]), unless a promise barring her from creating the Totten trusts is implied and is found to violate the 1971 agreement.

We disagree that the promise must be implied into decedent’s 1971 agreement not to change her will (168 AD2d, at 591, supra). To do so constitutes a significant judicial alteratian and addition to the settlement agreement of the parties. The agreement itself is silent as to Totten trusts or any other testamentary-like forms of disposition of property. Only the change of the will is forbidden. Moreover, the significant infringement of decedent’s rights during her lifetime to do whatever she wished with her property is not fairly inferable "by reasonable construction and necessary implication” (Cohort & Co. v Russell, 23 NY2d 569, 575). That approach also suggests that other affirmative and negative dispositions and powers could be squeezed out of this no-change-in-will promise. The application and expansion of the proposition of the law flowing from this case would be a most unsettling, troubling and unwise development in this area of the law. In the absence of an express provision in the agreement or factors far more substantial within the four corners of the settlement agreement itself from which a judicial inference could comfortably and properly be drawn, courts should not innovate for parties after the fact. The parties, after all, could have explicitly provided for the significant limitation on the right to create Totten trusts. Decedent therefore retained her right in this respect, just as she retained her rights to convey all or any part of her property by inter vivas gifts or transfers, a power plaintiffs concede.

The entirety of decedent’s promise in the settlement agreement involving her husband’s estate was to unalterably retain her children and their issue as residuary legatees under her 1969 will. This promise did not include a provision to leave any particular property or any amount of money to them, and nowhere purported to handcuff her from disposing of certain or all of her assets by gifts or bank trust accounts for named beneficiaries. Thus, the express agreement was not violated by what the decedent chose to do in this respect. To hold otherwise rewrites the settlement agreement.

Further, since a contract "to establish a trust” must be in writing (EPTL 13-2.1 [a] [1]), a promise to refrain from creating trust accounts must also be in writing, for the same reason that a promise to refrain from altering an existing will must be reduced to a writing (Rubin v Irving Trust Co., 305 NY 288). The promise not to create Totten trusts, assuming it could be implied in this case, does not satisfy that writing requirement.

Finally, the argument of plaintiffs by analogy to the decisional law governing joint wills is not helpful and is clearly distinguishable. In that line of cases, this Court has held that where two people sign joint or mutual wills and one of them dies, the survivor is bound to the terms of the will and may not make a different testamentary disposition or inter vivas gift that would defeat the purpose of the joint will agreement (Glass v Battista, 43 NY2d 620, 624; Schwartz v Horn, 31 NY2d 275, 279; Rastetter v Hoenninger, 214 NY 66, 73; see, Matter of Hassan, 98 Misc 2d 80, 83-84). Joint or mutual wills involve an agreement between two people to dispose of their property in a particular manner — either to each other or to third persons. The compact generally involves the joint disposition of the collective property of both and not the independent disposition by each of their own (Glass v Battista, 43 NY2d 620, 624, supra; Rastetter v Hoenninger, 214 NY, at 72, supra). Where the agreement bequeaths a specific piece of property to named individuals, the survivor is precluded from making an inconsistent inter vivas gift (Schwartz v Horn, 31 NY2d 275, 280, supra). But an agreement that the survivor’s entire estate will be left to certain beneficiaries does not necessarily prevent a survivor from making a lifetime gift, since such a gift would not necessarily defeat the purpose of the agreement (id.; see, Rastetter v Hoenninger, 214 NY 66, 73, supra). This is so because only plain and express words limiting the use of, or impressing a trust upon, the property of the other during their lifetimes would be sufficient to prevent disposition by the owner after the death of the other (Rastetter v Hoenninger, 214 NY 66, supra). The settlement agreement here, with its express and claimed implied restrictions, is simply not analogous to the joint and mutual will rules and policies. Inconsistent testamentary dispositions or inter vivas gifts would defeat the very purpose of particularized promises, expectations and mutuality of benefits involved with joint and mutual wills. That is not this case.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of the Surrogate’s Court, Westchester County, reinstated.

Kaye, J.

(dissenting). Reading any restriction on the creation of Totten trusts into decedent’s agreement to leave her will unchanged would, according to the majority, constitute "a significant judicial alteration and addition to the settlement agreement of the parties. ” (Majority opn, at 739-740.) That conclusion, however, ignores the testamentary nature of Totten trusts, and contravenes established principles of contract interpretation. I would affirm the Appellate Division order that precluded decedent’s use of Totten trusts to defeat her contractual agreement.

While the relevant facts are set out in the majority writing, several aspects of the case bear emphasis.

In December 1971, decedent entered into a written agreement, settling her claimed right of election against the estate of her late husband — decedent had been bequeathed $1 under the terms of her husband’s will. The stipulation noted that decedent was in the process of applying for an order relieving her default in filing a notice of election. Decedent agreed — in exchange for cash — to abandon her effort to resuscitate the untimely claim and to "leave intact and without change her Last Will and Testament dated December 1, 1969.” That will left the bulk of her estate to her son and daughter, or to her grandchildren per stirpes in the event her children predeceased her. The cash paid to decedent was drawn from the distributive shares of each of her children.

Decedent then proceeded to execute two wills in direct contravention of her stipulation — the first specifically disinheriting her children and the second simply ignoring them. As the majority notes, no one argues for the validity of those wills; they do, however, evidence decedent’s determination to subvert her undertaking under the settlement agreement.

What decedent could not do through the invalid wills she now accomplishes through a dozen or more Totten trusts.

Clearly, a person can enter into an enforceable agreement to make a particular testamentary disposition, including an agreement not to revoke a will (see, Oursler v Armstrong, 10 NY2d 385, 389; Rastetter v Hoenninger, 214 NY 66, 71). Moreover, it is well settled that "clear evidence of the existence of a promise of this nature” is required (Oursler v Armstrong, 10 NY2d, at 389, supra). The existence of such a promise, however, is not in issue — the stipulation could not be plainer on this point. Rather, the sole issue before us is whether a restriction on the ability to establish Totten trusts should be implied from the agreement.

Precedents in the joint/mutual wills line of cases, as well as ordinary principles of contract interpretation, dictate that such a restriction be implied in order to effectuate the terms of the settlement agreement.

The majority dismisses the settlement agreement as "not analogous to the joint and mutual will rules and policies.” (Majority opn, at 741.) These rules and policies presumably include the "particularized promises, expectations and mutuality of benefits involved with joint and mutual wills.” (Id.) Those very purposes and policies, however, are also implicated by the terms of the settlement agreement, where decedent’s children gave consideration for her agreement that she not revoke her existing will.

Both the settlement agreement at issue in the present case and the agreements involved in the mutual will cases cited by the majority seek to achieve the same goal — contractual restriction of testamentary dispositions — and thus the same rules of construction should apply (see, e.g., Schwartz v Horn, 31 NY2d 275). As this Court stated in Rastetter v Hoenninger (214 NY 66, 74, supra), the "survivor could not after accepting the benefits of the agreement make a gift in the nature, or in lieu, of a testamentary disposition or to defeat the purpose of the agreement.” The Totten trust device employed by decedent is just such a gift in the nature of a testamentary disposition that frustrates the purpose of the settlement agreement.

As the majority notes, during the settlor’s lifetime the beneficiaries of a Totten trust have no present interest, only an expectancy interest, in the corpus of the trust; title to the funds vested "free and clear” upon the settlor’s death (majority opn, at 739; see generally, EPTL 7-5.2). Thus, in all its relevant characteristics, the Totten trust functions as a testamentary disposition: decedent retained full enjoyment of the assets during her lifetime, the remaining funds passing to the beneficiaries only upon her death. As this Court noted in Matter of Totten (179 NY 112, 124), there is a presumption in such a case that the "trust was intended in order to avoid the trouble of making a will.” Decedent here has indeed successfully avoided the trouble she would have encountered had she attempted this same disposition by will.

Implying a restriction on the use of Totten trusts which would otherwise serve to defeat the purpose of a settlement agreement is consistent with general principles of contract interpretation. As we have several times observed, the aim of contract interpretation is not simply mechanical application of the literal language of an agreement, but also consideration of what may reasonably be implied from that language in effectuating the parties’ purpose in entering the contract (see, e.g., Sutton v East Riv. Sav. Bank, 55 NY2d 550, 555; Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1, 6). The purpose of the settlement agreement in the present case is utterly undermined if the Totten trust dispositions are allowed.

Finally, there is no Statute of Frauds problem in implying a restriction on the creation of Totten trusts. In order to satisfy the Statute of Frauds, a writing must contain "expressly or by reasonable implication all the material terms of the agreement.” (Cohan & Co. v Russell, 23 NY2d 569, 575.) As demonstrated, the bar on Totten trusts is reasonably implied in the express terms of this settlement agreement.

The Appellate Division thus was clearly correct in its conclusion that "where an agreement is entered not to modify an existing will, the decedent cannot use a Totten trust to defeat the purpose of that agreement.” (168 AD2d 590, 591.)

Chief Judge Wachtler and Judges Alexander and Titone concur with Judge Bellacosa; Judge Kaye dissents and votes to affirm in a separate opinion in which Judges Simons and Hancock, Jr., concur.

Order reversed, etc.


author: Bellacosa, J.

text:
    Cordia Beverley, Respondent, v Choices Women’s Medical Center, Inc., Appellant.
    Argued November 19, 1991;
    decided December 23, 1991

      POINTS OF COUNSEL

      Andrew S. Fisher and Judith E. Held for appellant.
    I. The court below ignored the protection historically accorded to pictures of newsworthy events appearing in a political context. (Roberson v Rochester Folding Box Co., 171 NY 538; Freihofer v Hearst Corp., 65 NY2d 135; Stephano v News Group Publs., 64 NY2d 174; Cohen v Herbal Concepts, 63 NY2d 379; Arrington v New York Times Co., 55 NY2d 433, 57 NY2d 669, 459 US 1146; Flores v Mosler Safe Co., 7 NY2d 276; Gautier v Pro-Football, Inc., 304 NY 354; Sutton v Hearst Corp., 277 App Div 155, 873; Finger v Omni Publs. Intl., 77 NY2d 138; Murray v New York Mag. Co., 27 NY2d 406.) II. The affirmance of the substantial award of compensatory damages was an abuse of discretion. (Memphis Community School Dist. v Stachura, 477 US 299; Reno v Bull, 226 NY 546; Harris v Standard Acc. &
      ■ Ins. Co., 297 F2d 627; Gressman v Morning Journal Assn., 197 NY 474; Murphy v Murphy, 109 AD2d 965; Napolitano v Branks, 141 AD2d 705; Lombardo v Doyle, Dane & Bernbach, 58 AD2d 620; Ismail v Cohen, 899 F2d 183.) III. There is no basis on this record for an award of punitive damages.

      Lawrence E. Kelly for respondent.
    I. The holding of the court below that the calendar, under Civil Rights Law § 51, is an undisguised advertisement should be affirmed. (Flores v Mosler Safe Co., 7 NY2d 276; Almind v Sea Beach By. Co., 157 App Div 230; Selsman v Universal Photo Books, 18 AD2d 151; Manger v Kree Inst. of Electrolysis, 233 F2d 5; Murray v New York Mag. Co., 27 NY2d 406; Stephano v News Group Publs., 64 NY2d 174; Valentine v Chrestensen, 316 US 52; Lerman v Flynt Distrib. Co., 745 F2d 123; Finger v Omni Publs. Intl., 77 NY2d 138; Arrington v New York Times Co., 55 NY2d 433, 459 US 1146.) II. The decision of the court below upholding the minimal award of $25,000 punitive damages was properly based on the "knowing use” standard and should be affirmed. (Tate v Colabello, 58 NY2d 84; Zipprich v Smith Trucking Co., 2 NY2d 177; Welch v Mr. Christmas, 57 NY2d 143; El Gemayel v Seaman, 72 NY2d 701; Gramercy Boys’ Club Assn. v City of New York, 74 NY2d 678; Woska v Murray, 57 NY2d 928; Cohn v Meyers, 125 AD2d 524; Guion v Associated Dry Goods Corp., 43 NY2d 876; Felice v Delporte, 136 AD2d 913.) III. The decision of the court below upholding the compensatory damages award of $50,000 as proper compensation for plaintiffs physical and mental injuries as well as changes in her life-style and career decisions caused by the invasion of her privacy should be affirmed. (El Gemayel v Seaman, 72 NY2d 701; Good Karma Prods. v Penthouse Intl., 88 AD2d 561; Long Is. Airports Limousine Serv. Corp. v Northwest Airlines, 124 AD2d 711; Berley Indus. v City of New York, 45 NY2d 683; Matter of Fasano v State of New York, 113 AD2d 885; Clancy v County of Nassau, 142 AD2d 626; Flores v Mosler Safe Co., 7 NY2d 276; Binns v Vitagraph Co., 147 App Div 783, 210 NY 51; Murphy v Murphy, 109 AD2d 965; Caprara v Chrysler Corp., 52 NY2d 114.)
   OPINION OF THE COURT

Bellacosa, J.

Plaintiff, Dr. Cordia Beverley, sued defendant, Choices Women’s Medical Center, Inc. (Choices), seeking damages primarily for invasion of her privacy in violation of Civil Rights Law § 51. Choices, without plaintiffs consent, used her photo, name and professional title in a calendar widely disseminated to promote Choices’ for-profit medical services business.

We agree with the lower courts that plaintiffs photo, name and professional title were used for "advertising purposes” within the meaning of Civil Rights Law § 51 as a matter of law. Also, the public interest/newsworthiness and public figure doctrines do not rescue Choices from liability for this invasion of privacy. Inasmuch as the damage award is supported by trial evidence and is not affected by error of law, we affirm the order of the Appellate Division.

Choices is a for-profit corporation, operating a medical facility in Queens County, which provides medical services in connection with family planning. In 1984, it produced 10,000 copies of a calendar for 1985 and distributed them free of charge to its patients, to several media organizations and women’s organizations, and to medical facilities, health insurance plan centers and physicians who referred, or might refer, patients to Choices. Choices budgeted and paid for the approximately $7,000 cost of printing its calendars as an "advertising and promotion” expense. Choices’ name, logo, address and telephone number were printed at the bottom of each page of the calendar. The last part of the calendar consisted primarily of plaudits, e.g., the "highest quality medical care” Choices provides; its "state-of-the-art medical treatment”; its "caring physicians and staff”; and its "sensitivity to patient needs”. Choices’ concept of "Patient Power”, which recognizes patients’ rights as consumers to complete medical information, was also described.

The calendar was entitled "Women — Choosing to Make a Difference”. This theme was expressed through pictures of people and events Choices deemed important in the history of the women’s movement. Certain historical dates throughout the year were highlighted, including the anniversary date of the Supreme Court’s 1973 abortion decision; the birth dates of leaders in the women’s movement, including Choices’ president; and the date Choices was founded. Photos illustrating the theme were featured for each month. A joint photo of Dr. Beverley and Dr. Lena Edwards was used for the month of June 1985. It had been taken at the 1983 Regional Conference of Women in Medicine, at which Dr. Edwards was honored. The caption under the photo in the calendar stated:

"A Woman for All Seasons — 1964 recipient of the Freedom Medal, Dr. Lena Edwards has dedicated her life to improving health care for poor women; at 85, she’s still an activist. Here with Dr. Cordia Beverley; Women in Medicine Conference, 1983.”

Choices purchased the photo from a photographer who had been hired to publicize the 1983 Conference, and concedes it did not seek or obtain Dr. Beverley’s consent to use her photo, name or professional title in its 1985 calendar. Dr. Beverley is a Board certified physician who specializes in internal medicine and gastroenterology and has never had an association of any kind with Choices.

Plaintiffs action for damages and injunctive relief alleged invasion of privacy in violation of Civil Rights Law §§ 50 and 51 and defamation. After discovery, Choices moved to dismiss the complaint or for summary judgment, and Dr. Beverley cross-moved for summary judgment on her statutory privacy claim. Supreme Court granted plaintiffs motion and denied defendant’s motion to dismiss the defamation claim. The Appellate Division modified by dismissing the defamation claim and remitted for a trial on damages with respect to the privacy claim (141 AD2d 89). The Appellate Division concluded that Choices’ calendar was "used * * * for advertising purposes” within the meaning of Civil Rights Law § 51, and that Choices was not insulated from liability under that statute merely because the calendar depicted a matter of legitimate public interest, namely, the women’s movement. After the trial on damages only, Supreme Court awarded plaintiff $50,000 in compensatory and $25,000 in punitive damages. The Appellate Division affirmed the judgment (170 AD2d 475) and this Court granted Choices’ motion for leave to appeal. Dr. Beverley does not cross-appeal the dismissal of her defamation claim, so the only issue before us is whether the lower courts properly awarded plaintiff summary judgment on the statutory invasion of privacy cause of action, and damages after trial on that cause.

Civil Rights Law § 50 provides that use of the "name, portrait or picture of any living person” for "advertising purposes, or for the purposes of trade” absent written consent is a misdemeanor. Civil Rights Law § 51 authorizes a civil action for injunctive relief and damages, including exemplary damages if a defendant acts knowingly in violation of that protection.

Use for "advertising purposes” and use "for the purposes of trade” are separate and distinct statutory concepts and violations (Flores v Mosler Safe Co., 7 NY2d 276, 284). Courts have liberally construed the statutory term "advertising purposes” (Gautier v Pro-Football, Inc., 278 App Div 431, 434, affd 304 NY 354; Selsman v Universal Photo Books, 18 AD2d 151, 152). A name, portrait or picture is used "for advertising purposes” if it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service (Flores v Mosler Safe Co., supra, at 279, 284; Pagan v New York Herald Tribune, 32 AD2d 341, affd without opn 26 NY2d 941).

Under this test, we agree that Choices’ calendar is an advertising medium and promotional publication. The pervasive and prominent placement of Choices’ name, logo, address and telephone number on each page of the calendar, the wide scope of distribution of the calendar and the range and nature of the targeted audiences, and the glowing characterizations and endorsements concerning the services Choices provides, leave no doubt that the calendar is commonly recognized as quintessential advertising material. Laudatory references about Choices’ for-profit medical services business are plainly designed to preserve existing patronage and to educate and solicit new clients.

That proposition having been established as a matter of law, we also conclude that plaintiff’s photo, name and professional title were used "for advertising purposes” in a manner forbidden by Civil Rights Law § 51. Significantly, only Drs. Beverley and Edwards were identified as medical doctors, and the services being promoted by Choices were its medical services. Thus, Dr. Beverley’s name, photo and professional title were central to and cannot be deemed merely incidental to the calendar’s unmistakable commercial message and purpose. Rather, they were used in a niijhner directly and professionally related to the advertised product — Choices’ medical services. This is plainly actionable under the "advertising purposes” prong of Civil Rights Law § 51 (Flores v Mosler Safe Co., 7 NY2d 276, supra; contrast, Gautier v Pro-Football, Inc., 304 NY 354, supra; Delan v CBS, Inc., 91 AD2d 255; University of Notre Dame Du Lac v Twentieth Century-Fox Film Corp., 22 AD2d 452, affd on opn at App Div 15 NY2d 940; Stillman v Paramount Pictures Corp., 1 Misc 2d 108, mod 2 AD2d 18, affd without opn 5 NY2d 994).

Nevertheless, Choices seeks to escape liability under Civil Rights Law § 51 on the ground that the theme of its calendar — the history of the women’s movement — is a message of public interest, which envelopes the calendar in a First Amendment free speech/free press protection. To be sure, literal application of Civil Rights Law § 51 could conflict with First Amendment protection accorded to the dissemination of news and matters of public interest (Arrington v New York Times Co., 55 NY2d 433, 440; Delan v CBS, Inc., 91 AD2d 255, 259, supra). Thus, we have stated that " ‘[a] picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise’ ” (Murray v New York Mag. Co., 27 NY2d 406, 409 [emphasis added], quoting Dallesandro v Holt & Co., 4 AD2d 470, 471, appeal dismissed 7 NY2d 735; see also, Finger v Omni Publs. Intl., 77 NY2d 138, 142; Stephano v News Group Publs., 64 NY2d 174, 185; Arrington v New York Times Co., 55 NY2d 433, 440, supra; Pagan v New York Herald Tribune, 32 AD2d 341, affd without opn 26 NY2d 941, supra). This newsworthiness/ public interest exception evolved out of, and has been applied in, a series of cases in which media defendants used plaintiffs’ photos in connection with periodical or newspaper articles or documentary films concerning newsworthy events or subjects of public interest, including political events, social trends, scientific news, and stories of consumer interest. Choices, however, is not a media enterprise; its calendar was an advertisement of its only business — providing medical services; and it used Dr. Beverley’s photo, name and professional title not as part of a disguised advertisement for that business, but in a direct and promotional, commercial manner. It included the statutorily offending photo and descriptive information in a publication which, on its face, was an advertisement.

Moreover, although women’s rights and a host of other worthy causes and movements are surely matters of important public interest, a commercial advertiser such as Choices may not unilaterally neutralize or override the long-standing and significant statutory privacy protection by wrapping its advertising message in the cloak of public interest, however commendable the educational and informational value (Selsman v Universal Photo Books, 18 AD2d 151, 152, supra; Almind v Sea Beach Ry. Co., 157 App Div 230, 232). The "advertisement in disguise” caveat to the newsworthiness/ public interest exception reinforces this analysis, as does the overarching statutory prohibition against unauthorized privacy invasions for "advertising purposes”.

We agree with the Appellate Division that to hold otherwise would diminish the statutory privacy protection against exploitation of a person’s name or likeness. Ordinary citizens are entitled to the protective mantle of this statute, and persons with professional reputations should receive no less coverage in this respect.

Choices turns that aspect around and argues that its use of Dr. Beverley’s photo, name and professional title is not actionable because she is a limited-purpose public figure due to her profession and her professional activities, including her involvement in the 1983 Conference. Our precedents declare that "a public personage or an active participant in a public event cannot invoke the protection afforded by [sections 50 and 51] when [a] name, picture or portrait is used in connection with a truthful recounting or portraying of an actual current event” (Flores v Mosler Safe Co., 7 NY2d 276, 281-282, supra, citing Binns v Vitagraph Co., 210 NY 51; Gautier v Pro-Football, Inc., 304 NY 354, supra). Here, however, as in Flores, "we are presented not with a simultaneous reporting by a public medium of communication of the actions of a person who has voluntarily entered the public eye, but rather with a deliberate later publication of a no longer current news item in an individual firm’s advertising literature” (Flores v Mosler Safe Co., 7 NY2d, at 282, supra). New York law gives Dr. Beverley a broad, remedial statutory privacy interest and the right not to be associated with or identified with causes or enterprises, to their benefit and at her expense, without her consent (compare, Matter of Cahill v Public Serv. Commn., 76 NY2d 102, 109-112). Choices violated plaintiff’s precious protection and may not seek cover under the public figure/public event exception, which is not applicable under the facts of this case.

Finally, the damage award is supported by trial evidence and any further challenge by Choices to the amount of the damage award is not reviewable in this Court. The affirmed finding of fact that Choices acted knowingly also renders the punitive damages award under Civil Rights Law § 51 supportable and not further reviewable. We have examined appellant’s remaining arguments and conclude they are without merit.

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

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

Order affirmed, with costs.