author: Cooke, J.

text:
    Western Electric Company, Respondent, v Francis X. Brenner, Appellant.
    Submitted January 11, 1977;
    decided February 17, 1977

      Leo C. Fennelly, New York City, for appellant.

      James M. Leonard and Margaret M. O’Neill, New York City, for respondent.
   Cooke, J.

To be determined on this appeal is the Statute of Limitations appropriate to an action brought by an employer against an employee for money allegedly received by the latter in violation of his duty of loyalty to the former.

The complaint alleges that defendant, a senior contract specialist in the corporate realty department of plaintiff Western Electric Company, had among his duties the initiating and negotiating of contracts and business arrangements. It further alleges that, by virtue of his employment with Western Electric, defendant was instrumental in securing the award of a 1971 contract to the J. L. Williams Company to construct a building at Warrenville, Illinois, for lease by Western Electric. In consideration of his efforts in obtaining that award, it is alleged that defendant demanded payment to him by the J. L. Williams Company of $50,000 which he received in two installments of $25,000 each, one in August and the other in December of 1971. Western Electric asserts that by virtue of defendant’s position with the company, it was entitled to place reliance and trust in the integrity, competence, honesty and fidelity of defendant in respect to the duties which he owed Western Electric and that such duties and obligations were breached by reason of defendant’s aforedescribed conduct.

The complaint sets forth two causes of action. Paragraph "SEVENTEENTH” of the first provides "That by virtue of the breach of Defendant’s duties of faithfulness and trust owing to Western Electric his receipt of the aforesaid payment deprived Western Electric of such amount which rightfully belonged to it and Defendant must be deemed to have received said payment in trust on behalf of Western Electric.” Paragraph "TWENTIETH” of the second talks of restitution: "That the breach by Defendant of his obligations to Western Electric has occasioned Western Electric damage in the amount of $50,000 and Defendant should be compelled to make restitution in said amount.”

On his motion to dismiss, defendant argued that plaintiff’s cause of action is based upon tortious conduct for which the Statute of Limitations is three years and that this action, commenced in May of 1975, is time-barred. In denying that motion, Special Term accepted plaintiff’s argument that the basis of the complaint was defendant’s breach of his contract of employment and of the duties of trust and loyalty which flowed therefrom. Taking this view, plaintiff’s action was commenced well within the six-year limit. The Appellate Division affirmed, agreeing that the complaint sounds in contract, not in tort, but certified to this court the following question: "Was the order of the Supreme Court, as affirmed by this Court, properly made?”

The answer to the question posited is, in a word, yes. Contract, not tort, forms the basis of plaintiff’s causes of action.

While both parties agree that it is the gravamen or essence of the cause of action that determines the applicable Statute of Limitations (Brick v Cohn-Hall-Marx Co., 276 NY 259, 264; Corash v Texas Co., 264 App Div 292, 295), they differ in their analysis of the nature or essence of the claim. Defendant, citing section 25-b of the General Construction Law, contends that the cause of action is one for wrongful injury to property and thus governed by the three-year limitation of CPLR 214 (subd 4). Section 25-b of the General Construction Law, however, which provides that " 'Injury to property’ is an actionable act, whereby the estate of another is lessened”, specifically excepts from its definition injuries to property brought about by "the breach of a contract”. In support of a narrow reading of that exception, defendant cites Buyers v Buffalo Paint & Specialities (199 Misc 764). In Buyers, the court sought to determine whether two causes of action, one for breach of warranty and the other for negligence, were barred by the three-year Statute of Limitations. A key factor there was that the plaintiff sought, not "restitution of the contract price”, but consequential damages for the injury to its buildings when the product, "Ruf-Kote”, manufactured by defendant and applied to the buildings by plaintiff, ignited and exploded. The Buyers court accepted the reasoning that "the term 'breach of contract’ * * * must be deemed to refer only to ordinary breaches of contract for which the normal direct damages are sought, and not breaches which involve consequential damages to person or property” and held "that actions for consequential damages to property are governed by the Statute of Limitations expressly applicable to such injuries, regardless of the form of the action” (199 Misc, at p 776). The holding in Buyers, however, was effectively overruled in Blessington v McCrory Stores Corp. (305 NY 140, 147) with this court’s recognition that an action for breach of an implied warranty of fitness for use may be related to, but is independent of, an action in negligence. Moreover, it is not the relief sought which is determinative but, rather, it is the underlying nature of the claim (Corash v Texas Co., supra, at p 297).

The situation in the instant case is also quite dissimilar from those in cases cited by defendant involving causes of action which stem from the breach of a defendant’s duty to use due care. In those cases the gravamen of the action is negligence and the claim is governed by the three-year period of CPLR 214 (see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 213:2, p 326; 214:4, pp 428-429; see, e.g., Alyssa Originals v Finkelstein, 22 AD2d 701, affd 24 NY2d 976; Carr v Lipshie, 8 AD2d 330, 331, affd 9 NY2d 983).

Here, as plantiff argues, the basis of the lawsuit stems from a wrong resulting from defendant’s breach of his duty of loyalty as an employee. Absent the relationship between the parties, there would be no duty to be breached, no wrong, and, thus, no cause of action. In Bravo Knits v De Young (35 AD2d 932, 933), where the issue was the arbitrability of a claim such as this, that court commented: "Bearing in mind that the contract is one of employment and that the claims are that this defendant transgressed against the duties of loyalty inherent in the employer-employee relationship, it is clear that the controversy arises out of and relates to the contract which is the genesis of the relationship and the consequent duty. It is of no moment that the causes of action are framed in commercial tort.”

The employer-employee relationship is one of contract, express or implied (Meo v Bloomgarden, 237 App Div 325, 327, app dsmd 262 NY 72) and, in considering the obligations of one to the other, the relevant law is that of master-servant and principal-agent (see 9 Williston, Contracts [3d ed], § 1012, p 13; Restatement, Agency 2d, § 2, Comment a, subd d). Fundamental to that relationship is the proposition that an employee is to be loyal to his employer and is "prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties” (Lamdirt v Broadway Surface Adv. Corp., 272 NY 133, 138). Clearly, an employee must not seek to acquire indirect advantages from third persons for performing duties and obligations owed to his employer (9 Williston, Contracts [3d ed], § 1014C, p 72). Drawing again on the law of agency, it is likewise basic that absent an agreement otherwise, an employee who makes a profit or receives a benefit in connection with transactions conducted by him on behalf of his employer is under a duty to give such profit or benefit to his employer, whether or not it was received by the employee in violation of his duty of loyalty (see Restatement, Agency 2d, §§ 388, 403). As here, when such benefit is not turned over, the employer has a choice of remedies, one among them being an action for restitution (see Restatement, Agency 2d, § 421A, Comment on Clause [c]). Moreover, any compensation secretly or improperly received from others beyond the compensation to which the employee is entitled is deemed to be held by him on a constructive trust for his employer (9 Williston, Contracts [3d ed], § 1015, p 84). To be sure, the fact that alternative remedies sound in tort, does not change the nature of this claim, which is essentially contractual.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

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

Order affirmed, etc.


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v William Bracey and Tyrell Foster-Bey, Indicted as Tyrell Foster, Respondents.
    Argued January 7, 1977;
    decided February 17, 1977

      Nicholas Ferraro, District Attorney (Gary C. DiLeonardo of counsel), Kew Gardens, for appellant.

      Julia P. Heit, New York City, for William Bracey, respondent.

      Allen E. Burns and William E. Hellerstein, New York City, for Tyrell Foster-Bey, respondent.
   Wachtler, J.

A jury found the defendants guilty of attempted robbery in the second degree (Penal Law, §§ 110.00, 160.10) and unlawful possession of a weapon as a misdemeanor (Penal Law, § 265.05, subd 9). The Appellate Division held that the evidence is insufficient to sustain the convictions and the People have appealed. The primary question is whether there is sufficient evidence from which the jury could conclude, as they did, that the defendants acted with intent to commit a robbery.

The main witness for the prosecution was Freddie Starks, who owned and operated a stationery store located at the corner of Foch Boulevard and 143rd Street in Jamaica. He testified that he and his employee were alone in the store when the defendants entered on September 13, 1973 at approximately 2 o’clock in the afternoon. According to Starks the defendants "looked around” and then one of them bought 2 cents worth of candy. Starks’ employee took the money, deposited it in the cash register and the defendants left. Starks saw them pass in front of his window along 143rd Street and disappear from sight behind the store’s partition. Then they "came back again”, turned around and went back up 143rd Street.

This time Starks went to a telephone booth next to the window and watched them as they walked toward a green Pontiac parked about 30 feet away on 143rd Street. He noticed that the car had no license plate. Starks saw Bracey, who was carrying a white canvas shoulder bag, enter the car. As Foster-Bey leaned over, and partially entered the car, Bracey handed the shoulder bag to him. Foster-Bey then stepped out of the car and Bracey drove off. Starks watched as Bracey made a U-turn, passed the store and proceeded across Foch Boulevard. Meanwhile Foster-Bey started back toward the store with the canvas bag over his shoulder.

Starks called the police "while all this was going on.” He then went outside where he found Foster-Bey standing in front of the store on Foch Boulevard. As Starks "looked up the block” he once again saw the green Pontiac, this time parked on Foch Boulevard near the corner of 142nd Street. Starks returned to the store, sat on some newspapers and continued to watch through the glass in the front door.

After two or three minutes, Foster-Bey started toward the door. Starks noticed that as Foster-Bey reached for the door with his left hand, he put his right hand into the shoulder bag and withdrew a black object resembling a pipe. Then, just as Foster-Bey opened the door and placed his foot inside the store, with the object in his hand, Starks heard car motors and tires screeching. Foster-Bey immediately backed out of the store, replaced the object in the bag and stood on the sidewalk with his back to the door. Starks spoke briefly to the police who then went over to Foster-Bey and frisked him. The police found a pellet pistol in the canvas bag. The pistol, which resembled a .38 caliber revolver, was fully loaded and, according to a ballistics test conducted prior to trial, the gun was functional. There was nothing else in the bag.

Fifteen or 20 minutes after Foster-Bey was taken into custody, Starks saw Bracey drive past the store in the green Pontiac. This time the car had a license plate on it and was proceeding on Foch Boulevard toward Sutphin Boulevard. Shortly after that the car passed the store again proceeding in the same direction. Starks saw Bracey make a left turn onto 143rd Street and then another left onto 116th Road. Soon after that Bracey came up to Starks on foot and asked "What happened? What’s going on?” Starks replied, "Nothing.” Bracey walked away toward 116th Road and about a minute or a minute and a half later drove past the store in the Pontiac on 142nd Street, "going toward Rockaway Boulevard.”

At this point a police car, responding to the earlier report, arrived at the store. Starks pointed out the Pontiac and Bracey was arrested. A police officer who inspected the car said that the screws on the license plate were "hand-loose. I could move the screws with my fingers.” Finally Starks identified both defendants at the scene and at the trial and testified that he had never seen either of them prior to this incident.

Neither defendant had made any statement at the time of arrest. However at the trial Bracey took the stand and testified that he had gone to a Manhattan union hall looking for work on the morning of September 13, 1973. He arrived home in Jamaica at about 11:00 a.m. He left again at approximately 2:15 in the afternoon and proceeded to an auto supply store on Rockaway Boulevard to buy a battery cable. On the way over he passed Starks’ candy store and on the return trip he stopped for a soda at approximately 2:30.

According to Bracey, when he approached the store "Mr. Starks was standing on the corner, and he kept looking at me over his glasses, you know * * * so I said 'what’s happening?’ ” but Starks "said nothing.” After he bought the soda he returned to the car, which was "Right in front of the store”, got in and "went straight down Foch.” But when he looked in the rear view mirror, he saw "a radio car with a light on” so he pulled over and stopped. He was frisked by the police and was taken back to the store "where something had happened. They told me I looked like somebody.” He also testified that the green Pontiac was his father’s car but Bracey himself had originally installed the license plates with a screwdriver in the spring of 1973. They were securely fastened on the date of his arrest. He admitted that he had seen Foster-Bey "in the neighborhood” before that day, but was not a friend or a "buddy”. He denied conspiring with him, or anyone, to commit a robbery and denied handing him a bag with a pellet gun.

As indicated, the jury, found the defendants guilty of attempted robbery in the second degree and unlawful possession of a weapon as a misdemeanor. The Appellate Division reversed and dismissed the indictment because in their view the evidence did not clearly establish the defendants’ intent. With respect to the attempted robbery conviction they held that the evidence "does not clearly show” that the defendants "intended to rob the complainant. Their acts * * * were consistent with the crimes of attempted menacing and attempted assault, as well as attempted robbery.” As regards the weapons charge, they found that there was no testimony that anyone had seen either defendant "with the pellet gun in his hand, poised in a manner implying the intent to use it in a criminal manner.” Thus they held that the People had not established that the defendants possessed the gun "with intent to use the same unlawfully against another” as is required by the statute (Penal Law, § 265.05, subd 9).

Section 110.00 of the Penal Law states that "A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” Essentially then, an attempt is an act done with an intent to commit some other crime (see, e.g., People v Moran, 123 NY 254, 257). The theory is that although the defendant may have failed in his purpose, his conduct is nevertheless culpable and if carried far enough causes a sufficient risk of harm to be treated as a crime in itself (see, e.g., Hall, Criminal Attempt—A Study of the Foundations of Criminal Liability, 49 Yale LJ 789, 816). The defendants’ criminal responsibility is less than, but necessarily dependent upon, the crime he has attempted to complete (Penal Law, § 110.05).

Thus it must first be established that the defendant acted with a specific intent; that is, that he intended to commit a specific crime (see, e.g., People v Kane, 161 NY 380). "It is not enough to show that the defendant intended to do some unspecified criminal act” (La Fave & Scott, Criminal Law, § 59, p 429). Secondly it must be proven that the defendant acted to carry out his intent. The law does not punish evil thoughts (People v Sullivan, 173 NY 122, 133; see, also, Holmes, The Common Law, p 65), nor does it generally consider mere preparation sufficiently dangerous to require legal intervention (People v Sullivan, supra; People v Collins, 234 NY 355; People v Werblow, 241 NY 55; People v Rizzo, 246 NY 334). The statute requires that there be "conduct which tends to effect the commission of’ the crime contemplated (Penal Law, § 110.00). The act need not be "the final one towards the completion of the offense” (People v Sullivan, supra, at p 133; see, also, Model Penal Code, § 5.01 [Tent Draft No. 10], p 39), but it must "carry the project forward within dangerous proximity to the criminal end to be attained” (People v Werblow, supra, at p 61; People v Ditchik, 288 NY 95, 96; People v Rizzo, supra; People v Di Stefano, 38 NY2d 640).

On this appeal we are concerned with the first element; whether there was sufficient evidence that the defendants intended to commit a robbery. If this was their intent, it is not disputed that their actions at the scene clearly demonstrated that they came dangerously close to their goal.

This poses an unusual problem. In most attempt cases, the defendant’s actual intent or purpose is not in issue and the only questions are whether he committed an overt act which went beyond the stage of mere preparation (People v Sullivan, supra; People v Collins, supra; People v Werblow, supra; People v Rizzo, 246 NY 334, supra; People v Mirenda, 23 NY2d 439; People v Di Stefano, supra) or whether it was impossible to accomplish the act intended (People v Moran, 123 NY 254; People v Gardner, 144 NY 119; People v Jaffe, 185 NY 497; People v Teal, 196 NY 372, but now see Penal Law, § 110.10). Legal comment usually focuses on the same points (see, e.g., Model Penal Code § 5.01, Comments [Tent Draft No. 10], pp 24-75; Perkins, Criminal Attempt and Related Problems, 2 UCLA L Rev 319; Ryu, Contemporary Problems of Criminal Attempts, 32 NYU L Rev 1170; Sobel, Inchoate Crimes, 32 Brooklyn L Rev 257, 268-269; La Fave, op. cit., § 59). Thus far we have not had to consider the sufficiency of the evidence of intent principally because there has been an admission by the defendant or an accomplice that the act was done with a specific criminal purpose (but see People v Sobieskoda, 235 NY 411, and People v Levan, 295 NY 26, where the intent was not conceded, but the reversal was based on an error in the charge). The issue however has occasionally been raised in other jurisdictions (see, e.g., People v Nichols, 255 Cal App 2d 217; Thompson v State, 5 Md App 191; Hines v Texas, 458 SW2d 666 [Tex]; Larsen v Nevada, 86 Nev 451; State v Powell, 277 NC 672) and the lower courts of this State (People v Bauer, 32 AD2d 463, affd without opn 26 NY2d 915; People v Sanders, 38 AD2d 877; see, also, La Fave, op. cit., p 429, n 80).

In some cases of course intent can be inferred from the act itself. In People v Moran (123 NY 254, 256-257, supra) for instance, where the defendant was seen in a crowded market "to thrust his hand into the pocket of a woman and to withdraw it therefrom empty” we noted in dictum that "It was plainly inferrable” that an intent "to commit larceny from the person existed”. But in many, if not most attempt cases, it will not be possible to look only at the act and its "natural consequences” to discover intent "since by definition of a criminal attempt the ultimate consequences do not ensue” (Skilton, Mental Elements in a Criminal Attempt, 3 U of Pitt L Rev 181, 182). Thus in the case now before us the fact that Foster-Bey entered a stationery store with a gun in his hand does not unequivocally establish that he intended to commit a robbery. He might have intended, as the Appellate Division noted, to assault or menace the owner, or he might have had an innocent purpose in mind. The act does not speak for itself, as it rarely will in the case of criminal attempt.

But intent can also "be inferred from the defendant’s conduct and the surrounding circumstances” (La Fave, op. cit, p 429, n 80) and "indeed this may be the only way of proving intent in the typical case” of criminal attempt (see Model Penal Code, § 5.01, Comments [Tent Draft No. 10], p 28). The question then is whether the jury, considering the act and all the surrounding circumstances, could conclude that there was no reasonable doubt that these defendants acted with an intent to rob the store.

The evidence, of course, must be viewed in the light most favorable to the People, since we must assume from the conviction that the jury credited the People’s proof (see, e.g., People v Benzinger, 36 NY2d 29). No one seems to dispute the fact that the evidence submitted by the prosecutor shows that the defendants intended to commit some type of crime. Their conduct obviously fits a familiar pattern common to robberies. The evidence shows that they came to a commercial establishment armed with a gun concealed in a bag, driving a car which could not be easily traced because of a missing license plate. They came in together, looked around and made a token purchase, Outside they exchanged the bag and split up. Bracey drove the car around the block and parked down the street from the store. Foster-Bey stationed himself outside and then proceeded into the store with the gun drawn and only withdrew when the police arrived. Under all the circumstances the jury could well find that the defendants, who acted together throughout, had reconnoitered the store and returned to rob it. In fact the only thing that could have made this intention plainer was an actual demand for money.

The defendants urge however that their conduct is equally consistent with an intent to assault or menace. This of course is a possibility, but the jury was entitled to conclude that it was not a reasonable possibility under the circumstances. According to Starks’ testimony, he did nothing which could provoke an assault, and he had never had any contact with either defendant prior to the incident. In order to find that the defendants intended a personal assault or menace under these circumstances, the jury would have to resort to sheer speculation.

Since we have found that the evidence is sufficient to establish the defendants’ intent to commit robbery, it follows that the jury could also find that the defendants possessed the weapon "with intent to use same unlawfully against another” (Penal Law, § 265.05, subd 9).

Accordingly, the orders of the Appellate Division should be reversed, the convictions reinstated and the cases remitted to the Appellate Division for review of the facts.

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

Orders reversed and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

       Starks testified that when the defendants were at the car, “There was also a third party in the car, but I couldn’t see his face.” However, he was certain that Bracey, “the shorter man” who had just entered the store with Foster-Bey, was driving when the car left. Apparently the "third party” was never identified.


author: Fuchsberg, J. (dissenting).

text:
    The People of the State of New York, Respondent, v Jory Lowrance, Appellant.
    Argued January 10, 1977;
    decided February 22, 1977

      Elliot Schnapp and William E. Hellerstein, New York City, for appellant.

      Mario Merola, District Attorney (Billie Manning of counsel), Bronx, for respondent.
   Memorandum. That part of the order of the Appellate Division, as appealed from and which affirmed a judgment of Supreme Court, Bronx County, convicting defendant, on his plea of guilty, of attempted burglary in the third degree and imposing sentence, should be affirmed.

Defendant was convicted, after a jury trial, of attempted assault in the first degree, reckless endangerment in the first degree and possession of a weapon as a felony. Subsequent to the rendition of the jury’s verdict, defendant pleaded guilty to attempted burglary in the third degree in satisfaction of an indictment charging burglary in the first degree and in further satisfaction of charges under two other indictments and a misdemeanor charge pending in Criminal Court. For each of the crimes for which defendant was found guilty by the jury, sentence to an indeterminate term of from one and one-half to five years was imposed, to be served concurrently. For the crime to which he pleaded guilty, defendant was sentenced to an indeterminate term of four years, to be served concurrently with the sentences imposed upon the convictions after trial. Upon appeal, the Appellate Division reversed the convictions based on the jury’s verdict, on the law and the facts and in the exercise of discretion, and granted a new trial.

Defendant contends that his guilty plea should be vacated since it was the tainted fruit of unconstitutionally obtained trial convictions, that it lacked a factual basis and that if he did not so plead he would again be subjected to the outrageous prosecutorial abuse which had marked the just concluded trial. The record reveals that, at the time of plea, defendant responded in the negative when asked if anyone threatened him or coerced him into pleading guilty. No promise was made concerning sentence except that the prosecutor agreed that he would recommend at the time of sentence that the punishment received as a result of the guilty plea would be concurrent with that imposed in connection with the three crimes for which there was a jury verdict. When asked if he pleaded guilty to the facts that on a given date he entered an apartment of one Davis at a specified address and committed an assault in said premises, he replied, "Yes, I am pleading guilty to the indictment”. The fact that the indictment to which defendant pleaded guilty involved a marital dispute and an entry into his mother-in-law’s apartment is irrelevant as a basis for vacating his plea.

Significantly, in People v Flowers (30 NY2d 315), it was stated that an application to set aside a guilty plea, on the often asserted ground it was exacted from defendant by duress of circumstances, is entitled more often than not to short shrift when supported only by the convicted defendant’s say-so (p 317). Moreover, the circumstances of this case are readily distinguishable from those requiring the vacating of the guilty plea in Flowers. There, defendant made a motion to withdraw his guilty plea before sentence and the court transcripts demonstrated that "to some extent defendant’s guilty plea was occasioned by duress.” Here, there was no application to withdraw and the record, far from showing duress or even coercion, indicates there was none—supported by defendant’s own statement. In Flowers, there was substantial indication that defendant was fearful of physical violence in the jail where he was detained; here, there was no threat of physical force and, since the record contains no expression of defendant’s fears, we are left to speculate what was in his mind.

Defendant’s plea of guilt was entered after consulting with counsel, concerning whom he voices no complaint. Defendant on trial was represented by the same attorney and on sentence thé court remarked, and defendant agreed, that his lawyer "conducted a very aggressive defense in your behalf.” Defendant’s rights were protected by a reversal of his convictions at trial and he should not now be permitted to take advantage, in this action terminated by plea, of the fact that there has been a subsequent reversal in the action involving trial, and thus renounce the understanding made at the time of plea. To permit such a carry-over on these facts would serve as a dangerous precedent. Furthermore, defendant has not demonstrated that his plea to a reduced charge, after consultation with counsel, resulted from fear arising from the trial on separate charges, rather than apprehension resulting from the pending charges or from the taking advantage of the offer made.

Fuchsberg, J. (dissenting).

In the extraordinary circumstances of this case, the plea taken by the defendant was the product of a "manifest injustice” and therefore should not be permitted to stand (cf. ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, § 2.1, p 52; Note, 64 Yale LJ 590, 592).

As background, it is noteworthy that the indictments against the defendant were a concomitant of his unfortunate matrimonial difficulties. The charges on which he was convicted after a trial, since found to have been permeated with prejudice, arose out of his discovery of another man at the apartment where his children and estranged wife resided; the plea which is the subject of this appeal was to an accusation associated with an intrusion into his mother-in-law’s house and other incidents involving his wife.

The record is very revealing as to the situation in which the defendant found himself when he accepted the trial prosecutor’s proposal that he plead. Even his "aggressive defense” had availed him nought in the face of the unfair trial. Freshly convicted as the result of prosecutorial trial tactics so gross that the Appellate Division was later to describe them as "intentional * * * injection of] racial prejudice” (50 AD2d 769), he faced a choice between what he had every reason to expect would be but a repetition of the performance and result tolerated at the completed trial, or an acceptance of the carrot stick of an offer to plead guilty and receive only a sentence which, because it was to be concurrent with that meted out in the first case, would bring him no actual punishment. In the light , of the coercive pressures and inducements of these circumstances, it was hardly an offer that he could refuse.

It is difficult to believe that the defendant’s witnessing of the outrageous means which then appeared permissible of employment against him in a court of law would not have a demoralizing effect. A plea, a form of confession (Boykin v Alabama, 395 US 238, 242), when so brought about, whether through the force of things as extreme as physical torture or, as here, by the subtler means of insidious language and events, may not withstand the scrutiny of due process (see Waley v Johnston, 316 US 101; Walker v Johnston, 312 US 275; Smith v O’Grady, 312 US 329; cf. Henderson v Morgan, 426 US 637).

Additionally, when the instrument of coercion is official misconduct, strong societal policy calls down sanctions, which, in the effectuation of their deterrent purpose, are so pervasive that they may be imposed irrespective of the actual guilt of a particular defendant (see Thomas v Teets, 205 F2d 236; Nickels v State, 86 Fla 208; Note, 55 Col L Rev 366, 369; cf. People v Flowers, 30 NY2d 315).

As our court had occasion to say in People v Flowers (supra), where a guilty plea was vacated because of unusually oppressive conditions at a local jail, in which the defendant there had been lodged, the "State is not so short of grist for its criminal mill that it must absorb convictions” obtained under such circumstances (30 NY2d, at p 319).

In short, an elementary sense of justice requires vacatur of the plea and remittal to the Supreme Court, Bronx County, for further proceedings.

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

Order affirmed.

         While the Appellate Division characterized its determination that the trial had been unfair as "inescapable”, it did not vacate the plea here because it apparently felt bound by its earlier decision in People v Alicea (46 AD2d 322), which had not yet then been reversed (37 NY2d 601). It is interesting that the trial prosecutor in Alicea and in the present case are one and the same.


author: Gabrielli, J. Fuchsberg, J. (dissenting).

text:
    The People of the State of New York, Respondent, v Thomas Jenkins, Appellant. The People of the State of New York, Respondent, v John Daniel, Appellant. The People of the State of New York, Respondent, v Benjamin Law, Appellant.
    Argued November 22, 1976;
    decided February 10, 1977

      Peter L. Yellin, Public Defender (Edward J. Nowak of counsel), Rochester, for appellants in the first and second above-entitled actions.

      Lawrence T Kurlander, District Attorney (Michael Nelson of counsel), Rochester, for respondent in the first and second above-entitled actions.

      Peter L. Yellin, Public Defender (Andrew C. Fine of counsel), Rochester, for appellant in the third above-entitled action.

      Lawrence T. Kurlander, District Attorney (Edward J. Spires of counsel), Rochester, for respondent in the third above-entitled action.

      People v Jenkins and People v Daniel

   Gabrielli, J.

The primary issue on this appeal is the obligation of the People to produce at trial a confidential informant once in the control of the police, who has become unavailable through no intention of the prosecutor, but through the otherwise excusable or justifiable act of the prosecutor. Because the charges against them arose from the same transaction involving the sale of narcotics, the defendants were tried together. The identity of the confidential informant, Pat Adams, was revealed on cross-examination of prosecution witnesses and at the close of the People’s case, the defendants sought the production of the informant. It was revealed that she had moved to Florida, having departed New York by means of a plane ticket provided by the Drug Enforcement Administration. The trial court denied defendants’ motion for production of the informant stating that, while disclosure was required in this case, it would not be appropriate to require production. The defendants were convicted of the criminal sale of narcotics, and the convictions have been affirmed by the Appellate Division.

In People v Goggins (34 NY2d 163, 169-170, cert den 419 US 1012), we articulated standards governing the disclosure of the identity of a confidential informant, indicating that the defendant "must show a basis in fact to establish that his demand does not have an improper motive and is not merely an angling in desperation for possible weaknesses in the prosecution’s investigation” and that "the truly crucial factor in every case is the relevance of the informer’s testimony to the guilt or innocence of the accused” (see, also, People v Pena, 37 NY2d 642, 644-645). We also stated that production of the witness "if appropriate” may be directed by the court. Goggins did not treat with the problems arising from the unavailability of the informant to both the prosecution and the defense at the time of trial.

We emphasize that the right to production does not flow from the right to disclosure (see United States v Gentile, 495 F2d 626; United States v Super, 492 F2d 319, cert den sub nom. Burns v United States, 419 US 876; Wilson v United States, 409 F2d 184, cert den 395 US 983; United States v Cimino, 321 F2d 509). However, once the Goggins test is satisfied, where an unavailable informant is or has been under the employ or control of law enforcement authorities, the People have a duty to produce the informant or exert diligent efforts to effect the production of the informant for the defense. This follows almost apodictically from the Goggins mandate, the essential purpose of which is to make an informant possessing material and relevant information available to the defense for examination at trial. The difficulty arises, however, when reasonable efforts to locate the informant prove unsuccessful. In this case we do not have a situation where the People intentionally removed the informant from the jurisdiction in order to prevent her from testifying at trial (e.g., Hernandez v Nelson, 298 F Supp 682, affd 411 F2d 619). The record does not suggest any such "sinister motive” or bad faith on the part of the prosecution in assisting the informant to move to Florida (see, e.g., United States v Super, 492 F2d 319, 321, n 2, supra; United States v Noah, 475 F2d 688, 691, n 2). While law enforcement authorities provided funds which enabled the informant to leave Rochester, she decided on her own initiative to move to Florida because of her stated fear for her own personal safety. Moreover, there is no indication that the People were in any way responsible for the informant’s ultimate disappearance following her arrival in Sanford, Florida.

The Trial Judge found that the prosecution undertook diligent efforts to locate the missing informant through the services of New York, Florida and Federal law enforcement agencies. Thus, the question presented in this case is whether, under these circumstances, in light of the efforts to locate the informant on the part of the People and in the absence of bad faith, the People may be required to produce an unavailable informant who had previously been under their control or, in the alternative, forfeit their case against the defendants.

The ultimate concern, as Goggins aptly articulated, is the defendant’s "right of confrontation, due process, and fairness” (supra, p 168). At the same time, the People should not be penalized when the informant has, on his or her own initiative, effectively disappeared after relinquishment of government control. Thus, in order to compel production, or dismissal of the charges under the circumstances presented in this case, we conclude that the defendant must meet a higher burden and demonstrate that the proposed testimony of the informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution’s case either through direct examination or impeachment. While this approach has been utilized in situations involving nontestimonial exculpatory evidence withheld by the prosecution (see, e.g., United States v Agurs, 427 US 97, 110-111; Brady v Maryland, 373 US 83), we think it should apply here where a defendant seeks the production of a witness alleged to have been under the control of the People.

In sum, we are not here concerned with a case dealing with a bad faith removal of a critical or material witness. Nor, of course, does this case involve inadequate efforts to ascertain the whereabouts of a missing material witness who was once under the control of the People and whose disappearance was in any fashion due to such prosecutorial bad faith. Likewise, we are not here involved with an obligation to produce any claimed or demonstrated exculpatory nonwitness evidence as in Brady v Maryland (supra) or United States v Agurs (supra). Requirements to disclose the identity of an informant, to produce exculpatory nontestimonial evidence or to produce a witness under prosecutorial control touch tangentially upon the question presented in this case. However, we are not here directly concerned with the rules governing these situations for, although they too are concerned with the relevance and materiality of the evidence sought with respect to the question of guilt, each of these situations is subject to somewhat differing standards.

We intend by our holding to make it clear that if it is demonstrated that the prosecutor once had the informant under his control and was responsible for his disappearance, there should be a duty to produce and if this be impossible of accomplishment, then he may be faced with dismissal of the charge, or a new trial may be appropriate. However, if the prosecutor exerts reasonable good faith efforts to make the witness available, then neither dismissal of the charges may be ordered nor a new trial directed unless the defendant demonstrates affirmatively that the testimony of the informant was not only relevant but also that it is likely to have been favorable to some degree in tending to exculpate the defendant or, alternatively, he must show the existence of a significant likelihood that the witness’ testimony could be impeached to a meaningful degree creating a doubt as to the reliability of the prosecutor’s case.

Here the defendants demonstrated that the informant might give relevant testimony on a material issue, but they failed to satisfy the higher burden of establishing a likelihood that her testimony would tend, to a significant degree, to exculpate them to the extent that there should be a dismissal or a new trial.

Thus, each of the defendants initially had the burden of demonstrating the materiality and relevance of the informant’s testimony to his case under Goggins. The Trial Judge held that this burden was satisfied in this case and we do not disturb that conclusion based on the exercise of sound discretion. Once that burden is satisfied, the defendants were entitled to disclosure of the informant’s identity and, at least, diligent efforts toward the production of an unavailable informant once under the control of the People. An absolute duty of production, or, alternatively, dismissal of the prosecution’s case, is required only where the People have intentionally procured the disappearance of the informant when they knew or should have known that the testimony would be material and relevant to the defense, or have exerted inadequate efforts to locate the informant, to avoid his or her presence at trial.

In the case where diligent efforts have been exercised, however, a defendant must satisfy a higher standard of materiality and relevance. In the instant cases, where it was found that such efforts were undertaken, we conclude that the defendants have not shouldered this burden. It is claimed that Jenkins was merely used by defendant Daniel to hand over a package of heroin to a purchaser and that he had no knowledge of its contents. Jenkins chose not to testify but relied on Daniel’s testimony concerning the transaction to establish this defense. However, there was only minimal contact between Jenkins and the informer and it is not alleged in what manner the testimony of Miss Adams could have assisted him in demonstrating his lack of knowledge of the nature of the transaction in which he was concededly engaged.

Daniel based his defense on the contention that he was acting as an agent of the informant Pat Adams (cf. People v Lindsey, 16 AD2d 805, affd 12 NY2d 958) and handled the drugs only as a favor to her. Doubt was cast upon this defense by the testimony of one of Daniel’s customers who stated that he had had prior drug dealings with Daniel.

The People established their case, and defendants have not demonstrated that the testimony of the informant would tend to be exculpatory or in any way weaken the prosecution’s case against them.

The discussion by the dissenter would be persuasive if, but only if, there was the slightest suggestion in the record that Pat Adams’ testimony would to the slightest degree establish any of the facts influencing the issue of guilt or innocence of the defendants. The fact is, however, that there is nothing except defendants’ exploitation of her unavailability in order to speculate that maybe somehow, in some way, or in some fertile imagination, her testimony might provide something.

We have examined the other claims advanced by the defendants and we find them to be without merit. Hence, the convictions should not be disturbed.

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

People v Law

Memorandum. We reverse the order of the Appellate Division and direct that a new trial be had.

Defendant’s plaint that the Trial Judge erred in refusing to compel production of the unavailable informant or, in the alternative, to dismiss the indictment, is rejected for the reasons stated in People v Daniel and Jenkins (decided herewith). This case involves the same informant as in the Daniel and Jenkins cases, and raises the same issue treated by our determination in those cases. The Trial Judge found, and correctly we think, that the prosecution exercised diligent efforts in attempting to locate the informant for the defense.

We conclude that the defendant has not met the burden of showing the materiality and relevance of the informant’s testimony to a significant degree sufficient to establish the likelihood that her testimony would tend to exculpate him. The defendant was charged with making two separate sales to Inspector Herritage, an undercover officer, who testified to the transactions involving the sale of narcotics. His defense, in part, was that he did not know Herritage and had never seen him. The prosecution, however, established, through the testimony of three witnesses, that meetings had taken place between the defendant and Herritage. Indeed, the Appellate Division (p 233), concluded that Law’s guilt had been "overwhelmingly established by eyewitness testimony”.

Defendant’s request, however, that the jury be instructed that possession of heroin is a lesser included offense of its sale should have been granted since, on the facts of this case, the jury was "free to accept or reject part or all of the defense or prosecution’s evidence” (People v Henderson, 41 NY2d 233, 236; People v Malave, 21 NY2d 26).

Fuchsberg, J. (dissenting).

As I see it, the primary problem. we face in this case is not so much with the articulation of legal principles but, rather, as is so often true, how they are applied to the facts at hand. That, of course, is the truest measure of the meaning of the words with which we give expression to our ideas. On my analysis, that observation has particular pertinence here because, by almost any supportable legal standard, I believe we are required to hold that (1) the unavailability of Pat Adams deprived the defendants of a fair trial and (2) the People were responsible for her unavailability

The Witness Adams’ Importance

The events in which Adams played a crucial role in this case, as well as in the companion case of People v Law, were central to the determination of the defendants’ guilt or innocence.

Without question, the Jenkins and Daniel cases are intertwined. As to each one of these defendants, the People’s chief witness was its undercover agent, Herritage, who testified that the events which concern us were initiated when Adams, a prostitute and paid confidential informer, left the agent’s car, approached Daniel on the street and there engaged him in a conversation of which Herritage did not claim he overheard any part. Since neither Herritage nor Daniel ever asserted that any other person was present at this conversation, in the absence of Adams the court could look to no one but Daniel, who took the stand in his own defense, to recount what he and Adams had had to say to one another; Daniel swore that it consisted of a plea that he find someone who would sell her drugs which she desperately needed because she was sick. Largely posited on that conversation, Daniel’s defense, i.e., that the relationship between himself and Adams, who, admittedly was then acting on behalf of the police, was that of principal and agent, a fact which, if credited, would preclude conviction (see People v Lindsey, 16 AD2d 805, affd 12 NY2d 958), could be verified or discredited by Adams alone.

Nor was that all. Herritage further testified that, following the afore-mentioned conversation, Daniel and Adams entered Herritage’s car and that, at that time, Herritage asked Daniel to sell him some heroin and advanced some money to Daniel for that purpose. At trial, Daniel denied the truth of this second conversation. Since, according to Herritage himself, no one else but the three of them were present at this second conversation, again Adams’ testimony would have gone to the heart of the matter.

At trial, Herritage went on to relate how the same three had next met at a bar a short time later that day.'Daniel, who admitted this second meeting took place, was accompanied there by Jenkins, who was a tenant of Daniel, and, according to Daniel, ignorant of the contents of a package that Daniel had asked him to hold contained heroin, which Daniel claimed he purchased earlier that day in compliance with Adams’ request. No witness contradicted Daniel’s testimony as to how Jenkins came to be present and, as a consequence, proof of the latter’s knowing participation, as a practical matter, was in this instance almost entirely dependent on whether Daniel was to be believed or not. Also, at this meeting, again according to Herritage, Jenkins, though saying nothing, handed him the package; Daniel’s testimony, on the other hand, was that Jenkins had handed the drugs to Adams, which presumably would bear out the story that it was for her and not for Herritage. Thus as to every phase of their dealings, Adams, if produced, was key to the resolution of the sharp conflict between Herritage’s and Daniel’s stories.

Not even the back-up police officers who, at the various times, had seen Adams, Herritage, Daniel or Jenkins together, were able to shed a single ray of light on the actual conversations or transactions. As Mr. Justice Robert Kennedy, the Trial Judge, noted, the informer "was the only person in a position to corroborate the testimony of either Officer Herritage or the defendant”. It seems impossible therefore to suggest that her production would not be vital to the ultimate issue of guilt or innocence and even more impossible to suggest that it was not "relevant” or "material” or adequate to satisfy the so-called "higher standard of materiality and relevance” referred to by the majority.

Review of the facts in the companion Law case, which was argued before us jointly with those of Jenkins and Daniel, serves to underline that the People were bound to know that Adams would be crucial to the defense of these cases. As to all three, the alleged crimes were committed at about the same time, the police operatives were identical and the disappearance of Adams had a like effect.

At Law’s trial, Herritage testified that, having been introduced to that defendant by Adams, he told Law that he wished to purchase heroin. According to Herritage, the three of them then went to another building, where Herritage gave the defendant $130 and the defendant handed him some packets of heroin in return. At the trial, Law denied either of these transactions. Since, aside from the undercover agent and the defendant, the only other person present was Adams, it is obvious the determination of which of them was telling the truth would likely turn on her testimony.

Herritage went on to testify to a second purchase of heroin from Law. This was three days later; once again, he claimed Adams was the only other person present. Once again, as in Jenkins-Daniel, not one of the back-up officers had overheard the conversations or seen anything pass between Herritage and Law. Obviously, then, Adams alone was the only other one in a position to bring firsthand knowledge of the events to the fact-finding process.

In the light of all the foregoing, I confess I am at a loss to understand how the majority can suggest that there is nothing to show that Adams’ testimony "in some way, or in some fertile imagination * * * might provide something” when in fact it is difficult to conceive of anyone in this case in a position to provide more. I can only speculate, therefore, that what the majority intends to say is that the defendants were required to prove that her testimony would have been favorable to them. To ask that, especially in these cases, where the informer has not only been no more, available to the defendants for interview than she was for testimony and where a shielding custodial relationship between the police and herself persisted from a time prior to the commission of the alleged crimes right through the entire period until they permitted her to vanish, would, I respectfully suggest, be but to mock the fundamental "right[s] to confrontation, due process, and fairness” of which we wrote so earnestly in People v Goggins (34 NY2d 163, 168, cert den 419 US 1012) and upon which the ability of a defendant to resist wrongful conviction is utterly dependent.

The Informer’s Unavailability

As indicated, until they assisted her in her departure for Florida, the People maintained close control of Adams; the crimes were committed in the Jenkins-Daniel case on October 25, in the Law case on October 23 and 26. The record shows that since even on an earlier date, October 11, 1973, Adams was in the custody of the Monroe County Sheriff; by November 16, 1973 the authorities at their expense had checked her into the Rochester Flagship Hotel under an assumed name where she could be kept under effective surveillance; on December 6, 1973, they took her directly from there to the airport. They certainly were aware of the fact that only Adams, Herritage and the defendants had witnessed the sales, the payments and the deliveries on which these prosecutions were grounded; for whatever they may have been worth, even the collateral issues as to credibility that arose at trial were then still matters for the future. Defendants’ motion for disclosure of the informer’s identity, albeit unsuccessful, also alerted the People both to the fact that the defendants believed Adams was being maintained at the Flagship Hotel under the People’s control and that they would probably seek Adams’ production.

It therefore challenges credulity that the People not only assisted in Adams’ departure from the jurisdiction, but appeared almost to have deliberately avoided any effort to maintain continuing contact with her thereafter. It would have been a simple matter to arrange that she be met and her intended whereabouts ascertained when she alighted in Orlando, Florida, all the more so since the co-operation of the Federal authorities, who had provided the funds for the flight, was available to the People; instead, the police never even so much as asked her for a forwarding address. Not once, until months later, when, at the trial court’s prompting, they for the first time engaged in a last-minute, overnight and, not surprisingly, fruitless attempt to learn her whereabouts, mostly limited at that eleventh hour to the use of the long distance telephone, had they lifted a finger to ascertain her location. This hardly should be described by such adjectives as "diligent”, "adequate” or "reasonable”.

It must be remembered that this picture of neglect, if that is all it was, is that of a specialized professional police unit sophisticated in the ways of confidential informers and undercover agents and highly trained in all aspects of drug law enforcement. After all, they had the occasion to learn her state of mind, to know how helpful or harmful her testimony was likely to be to each side. Indeed, it would be naive to fail to conclude from the signposts provided by this seemingly practiced avoidance of even a minimal effort to maintain contact with Adams that there was not at least a calloused unconcern, if not a conscious hope, that things would end up, as indeed as they did, with her unavailability at the time of trial. If these circumstances do not require a finding of bad, faith as such, they at least rise to the level of such reckless disregard for the elementary rights of each defendant to a fair trial as to constitute its equivalent (see United States v Agurs, 427 US 97; Brady v Maryland, 373 US 83, 87; People v Kiihoa, 53 Cal 2d 748; Hernandez v Nelson, 298 F Supp 682, affd on opn below 411 F2d 619).

Accordingly, reversal and dismissal is called for in each case.

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

In People v Jenkins and People v Daniels: Order affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur in memorandum; Judge Fuchs-berg dissents in part and votes to reverse and dismiss the indictment in a separate opinion.

In People v Law: Order reversed, etc.

      . Pat Adams had reported to the police that threats against her had been made and her apartment had been broken into; and even after the People moved her to a hotel where she could be better protected, she continued to be fearful of her safety.

      . I would note that the presence of the informant in another State does not, strictly speaking, render the informant unavailable to the defendant. CPL 640.10 (subd 3) sets forth the procedure for securing the attendance of a witness from without the State in criminal cases, and that section itself requires the defendant to show that the witness sought is material and relevant to the defense (see People v McCartney, 38 NY2d 618).


author: Jasen, J.

text:
    In the Matter of William J. Charles, Respondent, v Henry Diamond, as New York State Commissioner of Environmental Conservation, Appellant, William Harris, as Deputy Commissioner of Onondaga County Department of Health, Respondent, and Village of Camillus, Appellant.
    Argued November 16, 1976;
    decided February 15, 1977

      Louis J. Lefkowitz, Attorney-General (Martin H. Shulman, Ruth Kessler Toch and Stanley Fishman of counsel), Albany, for Henry Diamond, appellant.

      Roger Scott and Alexander J. Hersha, Camillus, for Village of Camillus, appellant.

      Victor J. Ciabotti, Syracuse, for William J. Charles, respondent.
   Jasen, J.

Petitioner, a landowner in the Village of Camillus, planned to construct three apartment buildings, totaling 36 units, on his property. Village law required that such buildings had to be connected to the village sewage system. On May 9, 1972, the village board authorized issuance of a building permit. However, on May 22, 1972, the State Department of Environmental Conservation informed petitioner that he could not connect into the village sewage system until "the Village undertakes a program to correct the deficiencies of their sewage system”. The State likewise directed the Onondaga County Health Department not to authorize the petitioner to connect into the existing system until the present deficiencies were corrected. Thereafter, in June, 1972, petitioner commenced this article 78 proceeding against the State Commissioner of Environmental Conservation, the Deputy Commissioner, Onondaga County Department of Health, and the Village of Camillus, contending that the actions of the State, county and village were arbitrary and capricious, resulting in an unconstitutional appropriation of his property without compensation. Petitioner sought a judgment directing the respondents to approve the sewer connection to his property, requiring the village to take appropriate steps so that the State and county would allow petitioner to use the village sewer system and awarding damages in the amount of $50,000 for damages already sustained. Alternatively, petitioner sought damages in the amount of $100,000 for the appropriation of his property in the event "that sewers are not approved * * * and he is not allowed to build the apartments on his property”.

The sewage treatment problems of the Village of Camillus are long standing, and village sewage has contributed to the pollution of the waters of Nine Mile Creek. In July, 1966, the village and the State Department of Health entered into a consent decree concerning improvement of the village sewage system. However, in April, 1968, the State Department of Health agreed with the village and the County of Onondaga that the village should not proceed with the design of secondary treatment facilities until the results of the Nine Mile Creek portion of a county-wide comprehensive sewage study had been received and evaluated. The department advised the village that any enforcement action on the 1966 consent order would be withheld pending analysis of the results which were expected to be available during June, 1968. However, the department acted in the expectation that, after study of the findings, the village would present the department with a schedule for implementation of the abatement program.

The next development, as indicated by the present record, occurred in October, 1972. The village entered into a new consent order with the State Department of Environmental Conservation, which in the interval had become the State agency responsible for the enforcement of the Water Pollution Control Law. The 1972 order provided a timetable for taking designated remedial steps. One tank of the sewage treatment plant was to be emptied of accumulated sludge and sediment and its baffles were to be repaired or replaced. The village was also to obtain and submit for approval a plan for the elimination of excessive groundwater and stormwater infiltration into the village sewage collection system. The village agreed to file an undertaking in the amount of $10,000 payable to the State commissioner in the event that the village failed to comply with the consent order. In July, 1973, the department found that the village was still discharging sewage and waste effluents into Nine Mile Creek which had not been subjected to effective primary treatment. The village’s attempt to prohibit the State from conducting an administrative enforcement proceeding designed to establish a definite date for abating the discharge of untreated sewage into Nine Mile Creek was unsuccessful. (See Village of Camillus v Diamond, 76 Misc 2d 319, affd 45 AD2d 982, mot for lv to app den 35 NY2d 645, cert den 421 US 931.)

The most recent development took place in March, 1976 when the village and the State entered into another consent order. The order recited the fact that the village had met technical problems in complying with the 1966 and 1972 orders, that the village had co-operated actively with the county in developing regional wastewater facilities, and that the county had completed a plan of study for the construction of regional facilities which would treat wastewater generated within the village. It was also noted that the original schedules were no longer attainable, and that Federal laws had been enacted requiring local compliance with Federal standards. A new schedule was agreed to, whereby the village was to apply for a State/Federal grant for the construction of new facilities with the facilities to be completed and in operation by January 1, 1980.

Special Term dismissed the article 78 proceeding for failure to state a cause of action, but the Appellate Division reversed. (42 AD2d 232.) On remand, Special Term directed the village to proceed immediately to correct the deficiencies in its sewer system and directed the State to issue a permit authorizing a sewer connection to petitioner’s property upon proof of satisfactory compliance by the village. The claim for money damages was dismissed against all respondents. The Appellate Division modified the order of Special Term by "reinstating petitioner’s cause of action for money damages for the alleged taking” and directed an immediate trial on that claim. (47 AD2d 426, 430.)

On this appeal, issues both of substance and procedure are raised. It is useful to first discuss the substantive rights of the respective parties before proceeding to consideration of the proper procedural vehicle for the enforcement of cognizable rights.

At the threshold, we note that this case does not involve the potentially troublesome issue of whether mere failure to provide municipal services can result in an inverse condemnation for which the municipality must pay compensation. Much more is involved here than merely an asserted failure to provide a service due equally to all members of the community. It is, of course, old law that a municipality is under no obligation to furnish sewers to particular property owners. Municipal corporations have ample authority to provide sewers "but it is not their duty to make every sewer or drain which may be desired by individuals, or which a jury might even find to be necessary and proper.” (Wilson v Mayor, 1 Denio 595, 600; accord O’Donnell v City of Syracuse, 184 NY 1; Seifert v City of Brooklyn, 101 NY 136; see 40 NY Jur, Municipal Corporations, § 1023, p 281.) Although municipal sewage disposal obligations have been discussed at great length in the tort realm, and little mentioned elsewhere, it is virtually beyond question that an individual property owner has no right to insist that the municipality provide him with a system, at least where the problem is unique to his land and can be remedied at his expense. (Cf. 45 NY St Dept Rep 666 [Inf Opn of Atty Gen].) Article 14 of the Village Law provides for the optional construction of sewers in a village, with the cost to be borne entirely by the village, entirely by the owners of the property benefited or by the village and the property owners jointly, at the option of the village. It is also old law that once a municipality has acted to provide a sewer and its improvement causes damage, the municipality is liable to compensate for the injuries sustained. (Seifert v City of Brooklyn, 101 NY 136, supra.)

In this case, it is undisputed that the village provided a sewage disposal system and that local law requires that if a sewer is provided, it must be used. Moreover, the local law requires sewer-connected toilet facilities if the property is intended for any human use. The vice of the situation is that the municipality requires the use of public sewers if the property is to be developed for human use and yet has not provided an adequate system for meeting the requirement imposed by the ordinance. Hence, the claim is more than an undifferentiated demand for municipal service due to all citizens equally. The contention, strippéd to its essence, is that the sewer ordinance is being applied unconstitutionally to petitioner’s property, thereby frustrating nearly all reasonable development.

A municipality has ample power to remedy sanitation problems, including difficulties presented by inadequate treatment or disposal of sewage and waste. (Westwood Forest Estates v Village of South Nyack, 23 NY2d 424, 427.) Inadequate systems of sewage disposal present not only ecological and aesthetic problems, but may pose direct and immediate health hazards. The municipal power to act in furtherance of the public health and welfare may justify a moratorium on building permits or sewer attachments which are reasonably limited as to time. (23 NY2d, at pp 428-429; accord Smoke Rise v Washington Suburban Sanitary Comm., 400 F Supp 1369.) Temporary restraints necessary to promote the over-all public interest are permissible. Permanent interference with the reasonable use of private property for the purposes for which it is suited is not. We have held that police power enactments must be reasonable and that unreasonable exercises of the police power result in a deprivation of property without due process. (French Investing Co. v City of New York, 39 NY2d 587, 594-595, app dsmd 429 US 990, and cases cited therein.)

A police power regulation to be reasonable must be kept within the limits of necessity. (Arverne Bay Constr. Co. v Thatcher, 278 NY 222, 230.) In Matter of Belle Harbor Realty Corp. v Kerr (35 NY2d 507), we established a three-pronged test for measuring whether necessity limits have been exceeded. "To justify interference with the beneficial enjoyment of property the municipality must establish that it has acted in response to a dire necessity, that its action is reasonably calculated to alleviate or prevent the crisis condition, and that it is presently taking steps to rectify the problem.” (35 NY2d, at p 512.) In that case, the municipality revoked a building permit on the ground that evidence uncovered since the issuance of the permit revealed that sewers were "grossly inadequate” for present use and new sewer connections were not advisable. The builder contended that the city had not acted because of sewer inadequacy but in response to community opposition to the planned development. We authorized the commencement of a proceeding to determine whether the revocation was a necessary health measure or was, in fact, motivated by political considerations. However, there was no contention that the developer would be entitled to money damages for any delay, whether justified by health requirements or not.

Similarly, in the Westwood case (supra), we struck down a village zoning ordinance that prohibited all apartment house construction. The ordinance was purportedly justified by the fact that the village had inadequate sewage treatment facilities and new multiple dwellings would increase pollution of the Hudson River. Yet the sewage problem was. not caused by the nature of the plaintiff’s land but was general to the community. It was, we concluded, impermissible to single out one landowner to bear a heavy financial burden caused by a general community condition. (23 NY2d, at p 424.) We were careful to note that the village, while it could not blanketly prohibit development, could impose moratoriums or other temporary measures in order to deal with the problem. (23 NY2d, at pp 426, 428-429.) Indeed, we have sustained development restrictions, pursuant to a general community plan, for periods as long as 18 years. (See Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, app dsmd 409 US 1003.) However, the crucial factor, perhaps even the decisive one, is whether the ultimate economic cost of the benefit is being shared by the members of the community at large, or, rather, is being hidden from the public by the placement of the entire burden upon particular property owners. (See French Investing Co. v City of New York, 39 NY2d 587, 596-597, supra.)

Petitioner has alleged sufficient facts to create a triable issue as to whether the village sewer ordinance is being applied to his property unconstitutionally. Ultimate constitutionality hinges upon several important and diverse, yet not exclusive, factors. At the trial, it will be relevant to establish the exact nature of the village sewage disposal problem. Only when the problem has been specifically identified can it be determined what steps are necessary to correct the difficulty and at what cost, in terms both of expense and time. (Cf. Berenson v Town of New Castle, 38 NY2d 102.) The capacity of the municipality to raise the necessary capital, either from taxes or by borrowing, is pertinent. (Matter of Golden v Planning Bd. of Town of Ramapo, supra, at pp 377-378.) Attention should be focused on the role of the State and Federal governments. In addition to supplying assistance in raising the necessary funds, both governments likely may have significant supervisory functions. We are, of course, concerned that the village sewer problem first appeared in 1966 and will not be rectified, at the earliest, until 1980. Such a period of delay can be justified only if the remedial steps are of sufficient magnitude to require extensive preparations, including preliminary studies, applications for assistance to other governmental entities, the raising of large amounts of capital, and the letting of work contracts. Performance of the actual construction and repair work may involve substantial periods of time. Construction factors, beyond control of the village, may contribute to delay. (See Matter of Golden v Planning Bd. of Town of Ramapo, supra, at p 382.) Crucial also is the diligence and good faith of municipal officials in pursuing the necessary improvements.

The municipality, as we have said, to sustain an interference with the beneficial enjoyment of property, must establish that the interference is justified by dire necessity, that the governmental restraint is calculated to alleviate or prevent the crisis condition, and steps are presently being undertaken to rectify the situation. (Matter of Belle Harbor Realty Corp. v Kerr, 35 NY2d 507, 512, supra.) Although reasonable excuse may justify delay, the village must be committed firmly to the construction and installation of the necessary improvements. (See Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 382, supra.) Absent the constraints imposed by law or contract, governmental officials may conduct the affairs of government at their own pace. However, where the municipality has affirmatively barred substantially all use of private property pending remedial municipal improvements, unreasonable and dilatory tactics, targeted really to frustrate all private use of property, are not justified. The municipality may not, by withholding the improvements that the municipality has made the necessary prerequisites for development, achieve the result of barring development, a goal that would perhaps be otherwise unreachable. (Cf. Berenson v Town of New Castle, 38 NY2d 102, supra.) Development may not be zoned out of a community by the indirection of needless municipal delay in providing the essentials for construction.

The extent of damage sustained by the individual property owner must, of course, be ascertained. (Cf. Matter of Fulling v Palumbo, 21 NY2d 30.) Mere financial loss is not enough, but the restriction on use must be so great as to deprive the owner of any reasonable use of the property to which any owner would be generally entitled to put the property. (1 Anderson, American Law of Zoning [2d ed], § 3.26.) Much, too, may depend upon when the property owner alerted the government to the particular damage being inflicted upon his property.

It is commonplace that a municipality is vested with discretion in determining whether construction of municipal improvements is necessary, and if so, the form of such improvements, their extent and location. Moreover, the judgment of municipal officials necessarily entails evaluation of relevant budgetary and taxation considerations. Only where the municipality has acted, or refused to act, and the social cost of a benefit has been placed entirely upon particular landowners, rather than spread throughout the jurisdiction, does it become necessary to review discretion and set aside unconstitutional confiscation.

The crux of the matter is that a municipal exercise of the police power which interferes with the beneficial use of property must be a reasonable and legitimate response to a situation which it is within the police power to correct. As the cases have made clear, no single factor, by itself, controls the determination of whether a particular municipal action is reasonable. Just as no single factor is decisive, no set of factors is exclusive. While we have mentioned several considerations that may serve as useful guides, determinations of reasonableness must turn upon the facts and circumstances of particular cases. "What is an 'unreasonable’ exercise of the police power depends upon the relevant converging factors. Hence, the facts of each case must be evaluated in order to determine the private and social balance .of convenience before the exercise of the power may be condemned as unreasonable”. (French Investing Co. v City of New York, 39 NY2d 587, 596, supra.)

In this case, the delay, as measured from the time the difficulty first surfaced, has been substantial. Petitioner has been through a tortured course of litigation and appeal. Yet the reásons, if any, for apparent municipal inactivity in the face of sewage difficulties have never been explained. The present record, even after two appeals to the Appellate Division, is woefully silent. While it is true that the municipality has not submitted any justification for the delay, we also note that the property owner has not submitted any proof, apart from his conclusory allegations, that the municipal delay has exposed him to, or has caused him, significant economic injury of some sort. It is, of course, the property owner that must come forward with such proof in support of the claim that the zoning ordinance is being applied to the property unconstitutionally, in order to put the municipality to the task of justifying its action. (E.g., Arverne Bay Constr. Co. v Thatcher, 278 NY 222, 232-233, supra; 1 Anderson, New York Zoning Law and Practice [2d ed], § 2.09, pp 48-50; see Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 454; cf. Matter of Belle Harbor Realty Corp. v Kerr, 35 NY2d 507, supra.) On this inadequate record, it would be inappropriate for us to determine the constitutionality of the municipal action. Both parties have not submitted the proof necessary for an intelligent and conclusive judicial evaluation of their respective claims. Since the parties should be given an opportunity, which neither has yet had, to submit their proof on trial, any temporary relief, short of a final declaration on the constitutionality of the village action, would be an idle gesture.

Therefore, this proceeding should be remitted to the trial level for the taking of additional proof to supplement the record and for the resolution of any disputed issues of fact that might arise with the proof. We are mindful of the delay and expense already incurred and we direct that the court below proceed expeditiously to conclude the necessary supplemental proceeding.

Although the present record is inadequate to resolve the constitutional issues presented, we can approve the part of the judgment which directs the village to comply with pertinent consent orders, as modified. It has been established that the village is under legal constraint, imposed by the State, to improve its inadequate sewer system. Quite apart from whether delay to date in improvement has been damaging to property owners and unjustified, the village must undertake compliance with lawful and persistent State directives. By ordering that the village proceed in accordance with existing State consent orders and directives, the courts below have simply imposed judicial authority which may rest, all together comfortably, beside the executive authority previously asserted. In short, this aspect of the judgment requires the village to do only what other lawful authority has already directed it to do. In practical effect, the judgment blends executive direction into judicial injunction. Since the judgment is predicated upon State executive action, to which municipal self-rule, in any event, must yield, the judgment, in this respect, does not entail issues of a constitutional magnitude. The judgment has not added any additional sewer improvement requirements; rather it only makes available a separate arsenal of sanctions in the event that the village fails to satisfy the requirements which the State has, or might, impose.

Assuming that the landowner has been prejudiced by an unreasonable delay on the part of the municipality, the question of proper constitutional remedy is reached. Of course, in the event that unreasonable delay is established, the landowner is entitled to a declaration that the ordinance, insofar as it requires the use of public sewers, may not be constitutionally applied to him. (See, e.g., Westwood Forest Estates v Village of South Nyack, 23 NY2d 424, supra; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 458, supra.) Thus, this petitioner would be constitutionally free from the requirement that his property be tied into the public sewer system. The property could be developed by the use of private sewer disposal systems, provided compliance is made with pertinent provisions of local law. (See Local Laws, 1968, No. 1 of Village of Camillus, art III.) He should have that option.

A permit for the construction of a private sewage disposal system may be obtained by the owner. Of course, the proposed facility must comply with all relevant State health and sanitary requirements and is subject to village inspection. (Local Law, 1968, No. 1 of Village of Camillus, art III, §§ 1, 2, 3.) In addition, the property owner would be required to operate and maintain the facility in a sanitary manner at all times. (§ 6.)

The remaining question is whether petitioner would be entitled to a money judgment for alleged temporary or permanent damages sustained. We have recently reiterated the rule that absent factors of governmental displacement of private ownership, occupation or management, the proper remedy for an invalid police regulation is a declaration of unconstitutionality and not compensation as for a taking in eminent domain. (French Investing Co. v City of New York, 39 NY2d 587, 594595, supra.) The only exception to this limitation to a nonpecuniary sanction is where the government intends that the property will eventually come into public ownership or where government has already intruded upon the property and inflicted virtually irreversible damage. (39 NY2d, at pp 594-595, quoting Costonis, "Fair” Compensation and the Accommodation Power: Antidotes for the Taking Impasse in Land Use Controversies, 75 Col L Rev 1021, 1035.) The present case does not involve either exception. (Compare Keystone Assoc. v State of New York, 33 NY2d 848, affg on opn at App Div 39 AD2d 176; Matter of Keystone Assoc. v Moerdler, 19 NY2d 78.) Hence, there is no question but that damages for a permanent loss are not available. Indeed, whether the village repairs its sewers or petitioner builds his own sewage disposal system, development is not permanently frustrated.

The question still remains as to whether temporary or consequential damages resulting from unreasonable delay by the village in repairing its sewers are available. In fact, consequential damages are at the heart of the case, since, absent such damages, the petitioner is restricted to building his own private disposal system or waiting for the village to complete the necessary repairs. We have never passed directly upon the issue of consequential damages for an invalid police power regulation (see French Investing Co. v City of New York, 39 NY2d 587, 599, supra) and research has failed to disclose any helpful precedent. The only analogous situation, the Keystone litigation (where temporary damages were authorized for interference with the pending destruction of the Old Metropolitan Opera House), involved a situation of actual governmental encroachment. Even in that situation, the award of temporary damages has been criticized. Judge Breitel, in dissent, pointed out that a tort remedy for the harmful effects of unconstitutional legislation would, in effect, provide the very defect that made the legislation void. (Keystone Assoc. v State of New York, 33 NY2d 848, 850, supra.) The dissent also noted that there is no precedent for such an award and that the scope of liability would be potentially unlimited. It was stated that one result of the availability of tort relief "could well be the failure of or the delay in resistance to unconstitutional legislation until the quantum of damages has increased to make resistance worthwhile.” (33 NY2d, at p 851.)

The discussion contained in the Keystone dissent is far broader than the result reached by the majority. The facts of the case were that the owner of the Opera House intended to demolish the building and to erect an office tower. The Legislature forbade demolition of the existing structure, giving a private corporation time to gather sufficient funds to rescue the historic Opera House from the wrecker’s ball. In the meantime, the owners, having emptied the building of its contents, could only use the building for the purpose desired by the Legislature or permit it to sit idle and empty with resulting economic loss. On the first appeal to our court, we concluded that the statute was a "condemnation statute” and the Legislature had, in effect, appropriated private property. (Matter of Keystone Assoc. v Moerdler, 19 NY2d 78, 87, 90, supra.) Later, the Appellate Division concluded, and a majority of our court agreed, that the property owner was entitled to damages for the de facto appropriation. (Keystone Assoc. v State of New York, 39 AD2d 176, 178-179, affd 33 NY2d 848, supra.)

The Keystone decisions are now bedrock law. In fact, we have had recent occasion to refer to those cases when we struck down a similar effort by government to coerce a private property owner to continue a use of the private property that the owner would have otherwise terminated and that the government preferred to have continued. (French Investing Co. v City of New York, 39 NY2d 587, 595, supra.) We cited Keystone as apt illustration of the availability of money damages where either private property was intended to eventually pass into governmental hands or where government had already intruded upon the land with irreversible, trespassory consequences. On the other hand, we noted that those two situations are the only ones in which money damages are available (p 595).

The majority’s resolution of the Keystone case is not controlling here. In that case, there had been an actual and direct governmental encroachment; a de facto taking linked to an avowed taking statute. (Lutheran Church in Amer. v City of New York, 35 NY2d 121, 130.) Here, by contrast, government has not directly intruded upon the land. Although the village may have unconstitutionally regulated, in one sense, the use of the land, government did not effectuate or intend a de facto taking. The dissent in Keystone is helpful only because the considerations it expressed went beyond the narrow facts involved. However, Keystone itself remains an unquestionable and invaluable decision, now firmly rooted in the law of the State.

Nevertheless, we decline to extend Keystone to a situation where there has been no de facto appropriation of private property and thereby create money liability for consequential damages to land even though there has been no governmental trespass. Although the present case involves damages to undeveloped land, the tort principle might be extended to drug regulations, rent control regulations, and a myriad of other socially oriented legislative programs. The prospect is limitless. While a Damoclean sword of liability for damages to undeveloped land might encourage municipalities to build sewers, and thus serve as a beneficial spur, the same rationale might be applied to encourage the building of highways and streets, railroad facilities, airports, sidewalks, and hundreds of other governmental improvements, in effect stripping municipal officers of their discretionary power over the desirability and timing of public construction. More important, the prospect of tort liability might impede equally desirable governmental regulation and legislation since municipal officers might fear subsequent judicial imposition of massive tort recoveries. Open-ended liability could inhibit the enactment of needed, but constitutionally borderline, legislation. The most salutory and effective means to curtail unconstitutional action is to stop the action before it can take effect. Indeed, the prospect of a tort action might incite potential plaintiffs to cumulate their damage and institute their constitutional claims only after significant passage of time and significant reliance upon the heretofore unchallenged validity of its action by the governmental unit involved. In the absence of legislative guidance and compelling precendent, we decline to extend tort liability for unconstitutional action to situations where government has not trespassed in some manner upon the burdened property.

The government of municipalities is committed not to the courts, or to juries, but to elected governmental officers. Although the courts may properly set aside unconstitutional or unlawful conduct by municipal officials, their judgment and discretion is otherwise unchallengeable in the courts. The ultimate remedy for disgruntled citizens is in the polling booth. In the absence of constitutional or statutory contentions, the courts have only a limited role in the review of municipal activity. Most emphatic, absent a taking of property, the courts may not impose liability damages, particularly where the imposition appears to be more punitive than compensatory. The courts should not use the threat of money sanctions to whip government into providing municipal improvements.

Turning to the procedural aspects of this case, we conclude that article 78 relief was proper insofar as necessary to compel the village to comply with State directives. (CPLR 7803, subd 1.) As to the claim of unconstitutionality, the proper procedure is an action for a declaratory judgment. (See, e.g., Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 458, supra; Berenson v Town of New Castle, 38 NY2d 102, 107, n 1, supra.) Thus, the claim of unconstitutionality should be severed and this portion of the proceeding converted into an action for declaratory judgment, with leave to replead if the parties are so advised. The claims for money damages should be dismissed.

As to the claim against the State, it should be dismissed in its entirety. The fault, if there be any, rests entirely with the village. The State Department of Environmental Conservation is involved solely because of its supervisory function in the prevention of water pollution. (See ECL 17-0301, 17-0303.) There is no State responsibility for providing local sewers.

The order of the Appellate Division should be modified and, as modified, affirmed, without costs.

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

Order modified, without costs, and the matter remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . The judgment also directs that the State, upon proof of due compliance by the village, issue any necessary permits so that petitioner might connect to the public sewer. As discussed, infra, the State is not a proper party to this proceeding and the judgment below may not impose requirements upon the State. The county, which is also affected by the order, has not appealed.

      . In light of our disposition of the merits of the claim for money damages, it is unnecessary to determine whether the claim should have been made in the context of a plenary action. It is of interest, nevertheless, that CPLR 7806 authorizes the recovery of money damages in an article 78 proceeding provided the claim for money is "incidental” to the primary relief and is such that might be recoverable on the same set of facts in a separate action in Supreme Court against the same governmental officer or body.