author: Chief Judge Cooke. Jones, J.

text:
    The People of the State of New York, Respondent, v Angel Claudio, Appellant.
    Argued June 9, 1983;
    decided July 7, 1983

      POINTS OF COUNSEL

      Albert A. Gaudelli for appellant.
    Appellant Claudio’s Sixth and Fourteenth Amendment constitutional rights were violated by the sheer ineptness and downright incompetence of counsel that caused his 16-year-old client to be arrested and prosecuted for murder. (People v Donovan, 13 NY2d 148; Escobedo v Illinois, 378 US 478; People v Baldi, 76 AD2d 259; People v Settles, 46 NY2d 154; McMann v Richardson, 397 US 759; People v Bennett, 29 NY2d 462; People v Droz, 39 NY2d 457; Jackson v Denno, 378 US 368; People v Shinkle, 51 NY2d 417; Berger v United States, 295 US 78.)

      John J. Santucci, District Attorney (< Joseph Fisch, Joseph J. Hester and Deborah Carlin Stevens of counsel), for respondent.
    I. The alleged ineffectiveness of appellant’s retained counsel, who advised him before and at the time of his noncustodial confession, did not violate appellant’s rights to counsel under the United States Constitution. (Miranda v Arizona, 384 US 436; Massiah v United States, 377 US 201; Cuyler v Sullivan, 446 US 335; Scott v Illinois, 440 US 367; Brewer v Williams, 430 US 387; Kirby v Illinois, 406 US 682; Argersinger v Hamlin, 407 US 25; Coleman v Alabama, 399 US 1; United States v Wade, 388 US 218; Gideon v Wainwright, 372 US 335.) II. The alleged ineffectiveness of appellant’s retained counsel, who advised him before and at the time of his noncustodial confession, did not violate appellant’s rights to counsel under the New York State Constitution, (Miranda v Arizona, 384 US 436; Massiah v United States, 377 US 201; Cuyler v Sullivan, 446 US 335; People v Ellis, 58 NY2d 748; People v Beam, 57 NY2d 241; People v Pepper, 53 NY2d 213; Kirby v Illinois, 406 US 682; People v Hobson, 39 NY2d 479; People v Rogers, 48 NY2d 167; People v Bartolomeo, 53 NY2d 225.) III. The exclusion of appellant Claudio’s confession is not the appropriate remedy for a claim of ineffective assistance of counsel. (Weeks v United States, 232 US 383; Wolf v Colorado, 338 US 25; Mapp v Ohio, 367 US 643; Terry v Ohio, 392 US 1; United States v Calandra, 414 US 338; Stone v Powell, 428 US 465; Burdeau v McDowell, 256 US 465; United States v Janis, 428 US 433; People v McGrath, 46 NY2d 12; Michigan v Tucker, 417 US 433.)
   OPINION OF THE COURT

Chief Judge Cooke.

The question presented by this appeal is whether defendant’s confession to police, made in a noncustodial setting before a criminal prosecution had commenced, must be suppressed as the product of the ineffective assistance of defendant’s retained counsel. This court concludes that suppression of statements made at such an early stage of an investigation is not required, because defendant’s Sixth Amendment right to counsel had not yet attached.

In the early morning hours of May 15, 1980, a 16-year-old high school student returning from a prom was robbed and fatally shot on a Queens street. Four days later, as the result of an anonymous tip, police went to the home of defendant Angel Claudio, who was also 16 years old. Defendant, accompanied by his stepmother, went to the precinct station house at the officers’ request. He stated that he had been at home sleeping at the time of the murder, and was allowed to leave.

On May 21,1980, defendant called the law firm of Heller & Heller, whose listing he had come across in the telephone directory. Attorney Mark Heller returned the call and met with defendant and defendant’s cousin the following morning. Defendant retained Heller to represent him in connection with the shooting. Heller and defendant, after a discussion, determined that defendant would surrender to the Queens County District Attorney. Defendant and Heller offered sharply differing accounts at the suppression hearing of what Heller advised his client to say to the authorities. The finding of the courts below, which is supported by the record, was that Heller did not explain the seriousness of the charges defendant might face or his available defenses. The lawyer told defendant that the best course of action was to surrender, and that the lawyer might be able to obtain probation or parole without jail time if defendant did so.

When defendant and his attorney arrived at the District Attorney’s office, the lawyer was told by a prosecutor that there was insufficient evidence to charge defendant unless he confessed. He was also informed that there would be no plea bargain. The lawyer did not ask whether defendant was wanted by the police. The courts below found that, after further conversations with representatives of the District Attorney’s office, Heller advised his client to make a statement. With his attorney present, defendant was interviewed by the authorities and made extensive inculpatory admissions, resulting in his arrest.

Heller subsequently made a plea through the media for other persons involved in the murder to come forward, and arranged for another young man, Randolfo Maldonado, to surrender after Maldonado contacted him. Both young men were subsequently indicted for murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree. This appeal involves only defendant Claudio.

At the suppression hearing, defendant argued that the performance of Heller, who by that point had been replaced by assigned counsel, had denied defendant effective assistance of counsel. The court agreed and ordered defendant’s statements suppressed. The Appellate Division reversed and denied the motion to suppress, holding that defendant’s Sixth Amendment right to counsel had not attached because formal judicial proceedings had not commenced.

At the outset, it should be noted that all members of this court are in agreement that the performance of defendant’s lawyer was woefully inadequate. The issue to be determined, however, is whether the lawyer’s conduct, coming before the commencement of a criminal prosecution, violated defendant’s right to counsel under the Sixth Amendment.

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to * * * have the Assistance of Counsel for his defence.” With respect to this right, “[i]t has long been recognized that the right to counsel is the right to effective assistance of counsel” (McMann v Richardson, 397 US 759, 771, n 14; see People v Baldi, 54 NY2d 137, 146). In assessing effective assistance, no distinction is to be drawn between assigned and retained counsel (Cuyler v Sullivan, 446 US 335, 344; People v Aiken, 45 NY2d 394, 401).

Furthermore, the right to assistance of counsel in a criminal proceeding attaches well before the opening of the actual trial. Indeed, more than 50 years ago, the Supreme Court based its reversal in a capital case on the “conclusion that during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself” (Powell v Alabama, 287 US 45, 57).

In the long line of cases that followed the Supreme Court’s historic decision in Powell, “it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him” (Kirby v Illinois, 406 US 682, 688, plurality opn of Stewart, J.). The right has been held to attach at arraignment (Powell v Alabama, supra; see White v Maryland, 373 US 59; Hamilton v Alabama, 368 US 52), at a postindictment lineup (United States v Wade, 388 US 218), at a preliminary hearing after arrest but before indictment (Coleman v Alabama, 399 US 1), at a preindictment lineup where defendant’s presence was directed by court order (People v Coleman, 43 NY2d 222; People v Banks, 53 NY2d 819), and when an accusatory instrument has been filed (People v Blake, 35 NY2d 331). The right has been held not to apply to the postarrest, preindictment taking of handwriting exemplars from an accused (Gilbert v California, 388 US 263).

The guiding principle behind the decisions construing the Federal constitutional right to counsel is “that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial” (United States v Wade, 388 US 218, 226, supra [emphasis added] [nn deleted]).

It logically follows, therefore, that when no stage, not even an informal one, of a prosecution has been reached, a person has no right to assistance of counsel under the Sixth Amendment. When defendant went to the authorities, they had no intention of arresting him. Indeed, defendant’s lawyer was told that there was insufficient evidence to charge defendant, unless he made a statement. Under these circumstances, an indigent person could not have insisted on appointment of an attorney under the authority of the Sixth Amendment. Inasmuch as defendant would have had no right to insist that a lawyer be provided for him when he talked to the authorities, he should not be rewarded by a suppression order merely because he chose to bring a lawyer who proved valueless.

Contrary to the dissent’s assertion, it is not irrational to draw a line at the commencement of criminal proceedings. It bears emphasis that this line does not blindly decree that the Sixth Amendment right to counsel begins at the courthouse door. From Powell down through the most recent decisions, the courts have remained cognizant of the realities of criminal prosecutions. Yet, all prosecutions must be deemed to start at some time. Unless the Constitution is read to require counsel for all persons — innocent or guilty — at the moment when any crime is committed, a line must be drawn at some later point. The commencement of criminal prosecution is the logical choice. Indeed, before commencement of prosecution, neither law enforcement officials nor the courts have any reason to be aware of the ineffectiveness of a person’s lawyer, or any obligation to remedy such ineffectiveness. Moreover, before a criminal prosecution has begun, the State has no means of ensuring that a person has “the guiding hand of counsel at every step in the proceedings against him” (Powell v Alabama, 287 US 45, 69, supra).

People v Smith (59 NY2d 156) does not stand for a contrary proposition. In Smith, the defendant alleged that his lawyer provided ineffective assistance by advising him to speak to authorities at a meeting set up with he lawyer’s agreement. The meeting was arranged in connection with a prosecution in Schenectady County, on which the defendant had already been indicted. Thus, with respect to the meeting, the defendant’s Sixth Amendment right to counsel had attached. The statements made at this meeting were later used at his trial on other charges in Albany County. The defendant sought suppression on the ground that he was denied effective assistance of counsel at the meeting with Schenectady County officials. Therefore, the fact that the alleged ineffective assistance occurred before criminal proceedings had begun in Albany County was not germane. The defendant’s right to effective assistance had already attached by virtue of the Schenectady County indictment. Thus, in Smith, this court did not construe the Sixth Amendment as applying to a lawyer’s actions before commencement of any criminal prosecution.

One final point merits mention. There is no indication in the record that the ineffectiveness of defendant’s lawyer was in any way induced, encouraged, or abetted by the police or District Attorney. The authorities were frank and complete in the information they provided to the attorney. The lawyer’s failure to diligently protect his client’s interests can be laid at no one else’s doorstep.

In conclusion, defendant’s statements were induced by the faulty advice of his lawyer, but it does not follow that they must be suppressed. Defendant’s right to effective assistance of counsel under the Sixth Amendment had not attached, because criminal proceedings against him had not commenced.

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

Jones, J.

(dissenting). In this case of first impression, I cannot agree that, for no reason other than that it occurred prior to the commencement of the criminal action, this defendant has no constitutional right to relief for what unquestionably was gross ineffective assistance of counsel which may well lead to his conviction. The factual circumstances of the case are detailed in the majority opinion. Both courts below, the People in our court, and the majority do not dispute that the conduct of defendant’s retained counsel constituted such ineffective representation as to call for judicial remedy had it occurred after the formal initiation of criminal proceedings.

The majority mistakenly equates a defendant’s constitutional right to effective representation by counsel with his right to be free from impairment of his right to counsel by the police or the prosecutor. The cases on which the majority relies all involve issues in the latter category — police or prosecutorial interference with a defendant’s constitutional right to counsel; none addresses the constitutional right of a defendant to effective assistance of counsel, wholly independent of any activity on the part of the People. There can be no doubt that a defendant’s right to be free from police and prosecutorial interference arises at the stage identified in the majority opinion. That circumstance, however, is not determinative of the stage at which a defendant’s right to effective assistance of counsel arises. Two quité different aspects of the right guaranteed by the Sixth Amendment are involved; that both are sometimes imprecisely referred to under the general rubric of a “right to counsel” should not be permitted to obscure the essential differences between the two.

It is acknowledged that the constitutional right to representation by counsel is the right to representation by effective counsel (Cuyler v Sullivan, 446 US 335, 344; McMann v Richardson, 397 US 759, 771, n 14; People v Baldi, 54 NY2d 137), and that the constitutional right to effective assistance of counsel extends to retained as well as assigned counsel. In Cuyler v Sullivan (446 US 335, supra), the Supreme Court of the United States considered the nature of the constitutional right to counsel and whether it extended to retained counsel. As to the latter issue it wrote: “A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. We may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused. But experience teaches that, in some cases, retained counsel will not provide adequate representation. The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.” (Cuyler v Sullivan, 446 US 335, 344-345, supra [nn omitted]). We have similarly rejected arguments based on a distinction between retained and assigned counsel (People v Aiken, 45 NY2d 394, 400-401).

In addressing the broader issue of the nature of the constitutional right to be represented by counsel, Justice Lewis F. Powell, Jr., writing for a unanimous court in Cuyler, recognized that the constitutional right to counsel is implicated because it is State action that leads to a defendant’s ultimate conviction, whether in consequence of a trial or a plea, and held “that inadequate assistance does not satisfy the Sixth Amendment right to counsel made applicable to the States through the Fourteenth Amendment”. (446 US, p 344.) Nothing in the opinion suggests that the right to effective assistance arises only after criminal proceedings have been commenced. Nor has any court heretofore so held. To’ the contrary, as recently as in People v Smith (59 NY2d 156) our court entertained and after careful consideration rejected contentions that the defendant’s conviction in Albany County Court should be reversed because of ineffective assistance of retained counsel prior to the institution of any charges in Albany County. In that case, as in the present, the claimed ineffective representation was the attorney’s advice to the defendant to give statements to law enforcement authorities.

On principle a line of demarcation, as to ineffective assistance of counsel, fixed at the initiation of the criminal action makes no sense other than that it happens to be the critical point when it is claimed that activity on the part of the police deprived the defendant of his constitutional right to the presence of counsel. Nothing can be envisioned which could be more disastrous than, as here, such incompetence of representation, when the defendant was no more than a suspect and no criminal proceeding had even been commenced, as all but to assure his conviction. The panoply of constitutional protections to which defendant is entitled during the investigatory stage and later in the prosecutorial stage, both pretrial and at trial, may have been effectively frustrated. If, as the Supreme Court and this court have recognized, a defendant is entitled to competent representation by retained counsel, once counsel has been engaged such right must extend to representation at any stage of the events where incompetency may contribute significantly to his ultimate conviction.

The reasons advanced at the Appellate Division for holding that remedy is to be given only for ineffective assistance of counsel which occurs after a criminal proceeding has been commenced are unpersuasive. That court appears mistakenly to have concluded that a defendant’s right to relief in consequence of ineffective assistance of counsel is somehow predicated on a failure of the court or of the prosecutor at the time to have protected him from the incompetence of his attorney. Reference is made to the fact that “cases which examine the effectiveness of counsel involve situations in which the State, usually through its Judges, has failed in its duty to oversee the criminal process and to discern and prevent ineffective representation” (85 AD2d 245, 257), that the standard for determining ineffective assistance is based on “the assumption that Judges on the pretrial or trial level will police the competence of lawyers practicing before them”, that “[t]his factor of judicial involvement is not present in a case such as this”, and that it cannot “be argued that the District Attorney had an obligation to assess the competency of counsel’s advice” and that even if such obligation be assumed in an extreme case, “in this case the District Attorney did not know that Heller was giving incompetent advice” (p 258). Although it is true that the court, and perhaps the prosecutor in extreme instances, has the obligation to protect the defendant from representation by his counsel which is perceived at the time to be incompetent (see People v Medina, 44 NY2d 199, 207), the constitutional right to representation by competent counsel is self-standing, to be protected independent of misconduct on the part of the People. Determination of the merit of the defendant’s claim is made on review by an appellate court and depends on the character and circumstances of the particular representation, unrelated to whether the trial court erred in failing to perceive the incompetence or to remedy it if perceived. The application for judicial remedy in this case is not grounded on any claim of default or error on the part of the court or the prosecutor.

It becomes apparent that opportunity for judicial oversight is not the basis for granting relief when it is observed that relief is granted after a criminal proceeding has been commenced if there has been unacceptable incompetence in the pretrial stages (see, e.g., People v Smith, 59 NY2d 156, supra) or prior to plea (see, e.g., Tollett v Henderson, 411 US 258, 266-268; McMann v Richardson, 397 US 759, 768-771, supra) notwithstanding that in such instances there has been no opportunity or occasion for either the court or the prosecutor to know at the time of such incompetence. Thus, in my view the Appellate Division was in error in concluding that defendant was entitled to no relief because “the alleged incompetence occurred at a time where there was no opportunity or possibility of contemporaneous judicial intervention” (p 259).

Because I perceive no sound reason for holding that the right to effective assistance of counsel arises only with the commencement of judicial proceedings and, on the contrary, am of the opinion that to draw such a line of demarcation not only is irrational in view of the nature and substance of the constitutional right to be represented by counsel but operates to deny defendant his constitutional right, I would reverse the order of the Appellate Division and, accepting the determination of both courts below that the representation in this instance was indeed ineffective, remit the case to the Appellate Division to determine the appropriate remedy to be granted defendant in the circumstances.

Judges Jasen, Wachtler and Simons concur with Chief Judge Cooke; Judge Jones dissents and votes to reverse in a separate opinion in which Judge Meyer concurs.

Order affirmed.

      . Defendant asserts only a violation of the Sixth Amendment of the United States Constitution, as applied to the States through the Fourteenth Amendment. Defendant does not claim before this court, nor did he do so at the suppression hearing or before the Appellate Division, that his right to counsel under the State Constitution has been violated. Therefore, this court has no occasion to consider the application of the State Constitution to defendant’s situation.

      . In light of the indisputably noncustodial setting in which defendant’s statements were made, Miranda v Arizona (384 US 436) and its progeny are not implicated.

      . The right to effective "assistance of counsel can be no broader than the right to counsel on which it is based.

      . In the present case adjudication with respect to deprivation of defendant’s right to effective assistance of counsel must be made at a preliminary stage of the criminal action. It remains later to be determined whether defendant will be convicted and if so whether in consequence of a trial or a plea.

      . The asserted ineffective assistance of counsel with respect to what later became the Albany County charges occurred during negotiations for disposition of charges for which defendant had been indicted in Schenectady County.

      . The majority appears to have adopted this rationale in part (p 562).

      . To suggest, as the Appellate Division appears to (85 AD2d, at p 257), that prior to the commencement of judicial proceedings the obligation of the authorities to refrain from questioning a suspect outside the presence of his attorney is discharged by the mere presence of an attorney, although accurate, is immaterial; that proposition again refers only to deprivation of a defendant’s constitutional rights by the police. The remedy for ineffective assistance of counsel at any stage of the proceedings, by sharp distinction, is predicated on the fact of ineffective assistance, not on the failure of the court or the People to have detected it.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Louise McCormick et al., Appellants, v David Axelrod, as Commissioner of the New York State Department of Health, et al., Respondents.
    Argued April 25, 1983;
    decided July 7, 1983

      POINTS OF COUNSEL

      Helaine Barnett and Kalman Finkel for appellants.
    This court should construe the mandatory language of section 2810 (subd 2, par a) of the Public Health Law, which was amended in 1977. to change “may” to “shall”, as mandatory to conform with its plain meaning as well as the legislative intent that the Commissioner of Health must seek the appointment of a receiver for the protection of elderly nursing home residents, whenever he revokes the operating certificate of a residential health care facility. (Munro v State of New York, 223 NY 208; Matter of 121-129 Broadway Realty v New York State Div. of Human Rights, 43 AD2d 754; Springer v Whalen, 92 Misc 2d 922, 68 AD2d 1011, 47 NY2d 710; Matter of Greenblatt [Ottley], 106 Misc 2d 169; East Meadow Community Concerts Assn. v Board of Educ., 18 NY2d 129; Le Drugstore Etats Unis v New York State Bd. of Pharmacy, 33 NY2d 298; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430.)

      Robert Abrams, Attorney-General (Clifford A. Royael and Peter H. Schiff of counsel), for David Axelrod, respondent.
    I. Section 2810 (subd 2, par a) of the Public Health Law does not require the commissioner to seek the appointment of a receiver where, after having revoked the operating certificate of a residential health care facility, he has ordered the transfer of patients in a short period of time. (Matter of Shannon v Introne, 80 AD2d 834, 53 NY2d 929; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; Matter of Industrial Comr. of State of N. Y. v Five Corners Tavern, 47 NY2d 639; O’Bannon v Town Ct. Nursing Center, 447 US 773; Matter of Guardian Life Ins. Co. v Chapman, 302 NY 226.) II. This proceeding is moot. (Matter of Hearst Corp. v Clyne, 50 NY2d 707.)

      Irwin R. Karassik for Beth Rifka, respondent.
   OPINION OF THE COURT

Per Curiam.

On November 22, 1982, following a hearing, respondent New York State Commissioner of Health issued an order revoking the operating certificate of Beth Rifka, Inc., as operator of the Beth Rifka Nursing Home on Staten Island, citing numerous health and safety violations. Although that order directed that all patients be discharged from Beth Rifka by December 1, 1982 and placed in alternate facilities, it left the operator itself responsible for effecting the discharge and for operating the facility until that time. Petitioners, residents of Beth Rifka Nursing Home, instituted this article 78 proceeding seeking, inter alia, an order directing respondent to appoint a receiver pursuant to section 2810 (subd 2, par a) of the Public Health Law to oversee operation of the facility pending completion of the discharge. Special Term denied the application. On appeal the Appellate Division affirmed, holding that the commissioner possesses discretion to determine whether or not to apply for appointment of a receiver and that insofar as section 2810 (subd 2, par a) provides that the commissioner shall apply to Supreme Court for appointment of a receiver upon revocation of a facility’s operating certificate, the statute is directory and not mandatory.

Despite the fact that this proceeding is moot because all patients residing in Beth Rifka Nursing Home have been discharged and transferred, the issue is re viewable. The interpretation given the statute potentially affects the health and safety of numerous nursing home patients, and, when a predictably similar situation arises, the need for prompt remedial action would likely deprive this court of an opportunity for meaningful review (see Matter of Storar, 52 NY2d 363, 369-370; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715). With recognized exceptions to the mootness doctrine manifestly applicable, we treat the instant proceeding as one seeking declaratory relief and reach the issue of statutory construction.

At the time of its enactment in 1975, section 2810 (subd 2, par a) of the Public Health Law provided in part that the commissioner, upon ordering the revocation of a facility’s operating certificate, “may apply” to the Supreme Court for the appointment of a receiver (L 1975, ch 649). Only two years later, section 2810 was amended and the word “shall” apply was substituted in place of may (L 1977, ch 896, § 2). The change evinced an unmistakable legislative intent to require the commissioner to submit the matter to the court for its determination and control (McKinney’s Cons Laws of NY, Book 1, Statutes, § 171, p 334; 2A Sutherland, Statutory Construction [4th ed, Sands], § 57.05). Moreover, it is noteworthy that a segment of the Moreland Report issued in 1976, a year before the amendment, pointed to serious deficiencies in the “large-scale transfer of patients” (Sixth Report of New York State Moreland Act Commission on Nursing Homes and Residential Facilities, Assessment and Placement: Anything Goes [March, 1976]), indicating that the Legislature was cognizant of these deficiencies and added the word “shall” in an effort to provide mandatory application for supervision by receivers of patient transfers. Such an interpretation of the statute is supported, not belied, by its express wording and the purposes the statute seeks to achieve, which are, as always, the primary determinants of whether a provision is directory or mandatory (see Matter of King v Carey, 57 NY2d 505; People v Karr, 240 NY 348, 351-352; Matter of 121-129 Broadway Realty v New York State Div. of Human Rights, 43 AD2d 754). By its terms, the statute provides that the appointment of a receiver is “a means of protecting the health, safety and welfare of the patients in a residential health care facility, whenever the commissioner revokes the operating certificate” (Public Health Law, § 2810, subd 2, par a). With these important objectives in mind, a mandatory interpretation requiring an application for the appointment of receivers should be adopted. Entrusting the issue to judicial discretion when considering the application leaves room for denying the appointment of a receiver if circumstances dictate that no appointment is desirable or prudent.

Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted declaring that section 2810 (subd 2, par a) of the Public Health Law requires the Commissioner of Health to apply to Supreme Court for an order appointing a receiver to supervise the closing of a residential health care facility whose operating certificate has been revoked by the commissioner.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Simons concur in Per Curiam opinion; Judge Meyer taking no part.

Order reversed, with costs, and judgment granted in favor of appellants in accordance with the opinion herein.

       Public Health Law, § 2810: “2. a. As a means of protecting the health, safety and welfare of the patients in a residential health care facility, whenever the commissioner revokes the operating certificate of such a facility he shall apply to the supreme court in the county where the facility is situated for an order directing the owner of the land and/or structure on or in which the facility is located to show cause why the commissioner, or his designee, should not be appointed receiver to take charge of the facility.”


text:
    In the Matter of the Application of Louise McCormick et al., Appellants, v David Axelrod, as Commissioner of New York State Department of Health, et al., Respondents.
    Decided July 7, 1983

      POINTS OF COUNSEL

      Kalman Finkel, Helaine Barnett, Marshall Green and Helen Hershkoff for appellants.
    I. Justice Gagliardi’s findings clearly establish that each of the named respondents acted in violation of this court’s order, defeating petitioners’ right to choose to remain at the nursing home pending determination of their appeal to this court. (Ketchum v Edwards, 153 NY 534; Juidice v Vail, 430 US 327.) II. Respondent Commissioner Axelrod should be held in contempt of court. (Friendly Ice Cream Corp. v Great Eastern Mall, 51 AD2d 883, 39 NY2d 1032.) III. Respondents Beth Rifka and Administrator Gearhart violated this court’s stay and should be held in contempt of court. (Link v Wabash R. R. Co., 370 US 626; Smith v Ayer, 101 US 320; Farr v Newman, 14 NY2d 183; Price v Concourse Super Serv. Sta., 32 Misc 2d 349.)

      Robert Abrams, Attorney-General (Melvyn R. Leventhal, Barbara B. Butler and Marion R. Buchbinder of counsel), for David Axelrod, respondent.
    Petitioners have not met their burden of proving, with reasonable certainty, that Commissioner Axelrod violated the January .28, 1983 agreement or this court’s order of February 17, 1983. A contempt finding may not be based on the acts of any other State employee; and in any event, petitioners have not proved that any other State employee engaged in clearly proscribed acts. (Ketchum v Edwards, 153 NY 534; Pereira v Pereira, 35 NY2d 301; Suchomski v Suchomski, 73 AD2d 1038; Hynes v Hartman, 63 AD2d 1; Dowler v Johnson, 225 NY 39; Rager v Lefkowitz, 20 AD2d 867; Matter of Sentry Armored Courier Corp. v New York City Off-Track Betting Corp., 75 AD2d 344; Matter of Benson Realty Corp. v Walsh, 54 AD2d 881; Matter of Leto Constr. Corp. v Wentworth, 11 AD2d 860; People ex rel. Golden v Golden, 57 AD2d 807.)

      Irwin Karassik for Beth Rifka and another, respondents.
   OPINION OF THE COURT

Per Curiam.

This is a motion by petitioners in the above-captioned appeal to hold respondents Commissioner of the New York State Department of Health, Beth Rifka, Inc., and the administrator of Beth Rifka Nursing Home in civil contempt for having violated the terms of a stay order issued by this court in connection with the appeal. The motion is hereby granted. The importance of the issues raised prompts us to publish this opinion describing our rationale for this disposition.

I

On November 22, 1982, the Commissioner of Health ordered the revocation of the operating certificate of respondent Beth Rifka, Inc., as operator of the Beth Rifka Nursing Home on Staten Island, based upon numerous violations directly related to patient care. The commissioner’s order directed the discharge of all patients from the nursing home by December 1, 1982, leaving the nursing home itself responsible for its continued operation. Two proceedings were instituted on the basis of this order. Beth Rifka commenced an article 78 proceeding challenging the determination to revoke its operating certificate. This proceeding was transferred to the Appellate Division for decision. Several residents of the nursing home commenced a separate article 78 proceeding, seeking an order pursuant to section 2810 (subd 2, par a) of the Public Health Law directing the commissioner to appoint a receiver to supervise the operation of the nursing home and discharge of the remaining patients. Named as respondents were the commissioner, Beth Rifka, Inc., and the nursing home’s administrator, Sally Gearhart. Although Beth Rifka and Ms. Gearhart had been served with all papers in this proceeding, they never appeared. Supreme Court denied petitioners’ application.

The two matters were argued together in the Appellate Division. At that time, Beth Rifka orally joined in petitioners’ request that a receiver be appointed. On January 20, 1983, the Appellate Division decided both matters, confirming the commissioner’s determination to revoke Beth Rifka’s operating certificate (Matter of Beth Rifka, Inc. v Axelrod, 91 AD2d 1143) and affirming Supreme Court’s denial of petitioners’ application to require the commissioner to appoint a receiver (Matter of McCormick v Axelrod, 91 AD2d 1144). The commissioner, by letter dated January 27, 1983, directed that the patients be discharged by February 3.

On January 28, 1983, petitioners presented an order to show cause to an Associate Judge of this court seeking a temporary stay of the involuntary discharge of the nursing home’s residents pending decision on petitioners’ motion for leave to appeal to this court and for a stay in connection therewith. Counsel for the commissioner and petitioners appeared at the hearing on the order to show cause, but no one appeared on behalf of the nursing home or its administrator, despite an earlier representation to the contrary. Beth Rifka had decided to seek leave to appeal and a stay in connection with its own proceeding against the commissioner. At the conclusion of the hearing, the matter of a temporary stay was resolved by the commissioner’s agreement to forbear from taking any action to discharge the residents of Beth Rifka until a decision was rendered by this court on petitioners’ motion. Respondents were ordered to show cause why an order should not be made granting petitioners leave to appeal to this court and staying the involuntary discharge of the remaining residents at Beth Rifka pending determination of the appeal. This order was served upon the commissioner, the nursing home and its administrator, in accordance with its direction to that effect.

On February 17, 1983, this court denied Beth Rifka’s motion for leave to appeal in its article 78 proceeding (58 NY2d 607). We also granted petitioners’ motion for leave to appeal and for a stay. Our order provides: “ordered, that the said motion for a stay be and the same hereby is granted and all steps and/or proceedings to enforce the Appellate Division order of affirmance dated January 21, 1983, or to effect the involuntary discharge of the remaining residents at Beth Rifka Nursing Home stayed pending hearing and determination of the appeal herein.”

Despite this order and on the following day, by lunchtime, all remaining residents of Beth Rifka including petitioners had been discharged and transferred to other nursing homes.

Petitioners then made the present motion to hold David Axelrod, as Commissioner of Health, Beth Rifka, Inc., as operator of the nursing home and Sally Gearhart, as its administrator, in civil contempt of the order of this court, which petitioners alleged had been violated by the involuntary transfer of the remaining residents. The allegations of possibly contumacious conduct having been set forth by petitioners sufficiently to warrant further inquiry, we ordered the parties to present evidence on the issues raised at a hearing before Honorable Joseph F. Gagliardi, Justice of the Supreme Court and administrative Judge of the Ninth Judicial District.

Following conferences related to discovery procedures and possible stipulations, a two-day hearing was held, during which testimony was taken at the nursing homes where petitioners now reside and at the Westchester County Courthouse. Justice Gagliardi’s report, summarizing the evidence and reporting his factual findings and conclusions, was delivered to this court on June 1, 1983.

The hearing focused primarily upon whether and to what extent the various respondents had knowledge of this court’s February 17 order and whether their conduct violated its express terms. The record indicates that on the afternoon of February 17, counsel for all parties learned of the disposition of the relevant motions. Helaine Barnett, the Legal Aid attorney representing petitioners, testified that she had a telephone conversation that afternoon with Irwin Karassik, the attorney for Beth Rifka and Ms. Gear-hart. Mr. Karassik asked her to have Legal Aid arrange funding for the continued operation of the nursing home. Although Mr. Karassik testified that he informed Ms. Barnett of his belief that this court’s stay did not in any way restrain his client’s conduct, Ms. Barnett emphatically denied that the information was communicated to her, until after all patients had been discharged.

At about the same time, Department of Health personnel learned that this court had granted petitioners a stay. Carolyn Scanlan, Associate Director of the Division of Health Facility Standards and Control in the office of Health Systems Management, testified that she never learned the precise terms of the court’s order, but thought that it prohibited the department only from closing the facility and itself discharging the patients. Ms. Scanlan called Elaine Kesner, then long-term care program director in the department’s New York City area office and informed her that a stay had been granted.

The testimony of the three petitioners indicates that, during the evening hours of February 17, they were informed by Ms. Gearhart and other personnel that they would have to leave the following morning. Their belongings were put into cardboard boxes or plastic bags. Petitioners were quite distressed at this news and all had difficulty sleeping that night. They all suffered varying degrees of emotional upset.

The following morning, Ms. Scanlan realized that the Beth Rifka staff might simply abandon its remaining residents, and had Department of Health staff contact the New York City office to ensure that monitoring of the facility would continue. Shortly thereafter, Ms. Gearhart informed Ms. Kesner that Beth Rifka was closing and that other facilities might be contacting the department regarding transfer of the patients. In a subsequent telephone conversation among Ms. Kesner, Ms. Scanlan and counsel to the department, they worked out the language that was to be used in communicating with other facilities, attempting to limit department involvement so that it would not be deemed in violation of this court’s order. During the course of the morning, Clove Lakes and Holy Family Nursing Homes, the facilities to which petitioners were transferred, asked Department of Health personnel for authorization to “overbed” in order to accept the patients being transferred from Beth Rifka. Ms. Scanlan authorized the overbedding, thus allowing the facilities to exceed their actual certified bed capacity as previously established by the department. The nursing homes were told that if they could handle the additional patients at the appropriate level of care and if the patients wanted to transfer to the particular facility, the department had no objection to the overbedding.

Although it was Ms. Kesner’s impression that the patients were being transferred to facilities of their choice, she had no personal knowledge that this was so. No one from the Department of Health attempted to contact petitioners or their counsel to ascertain whether they were, in fact, leaving voluntarily or to inform petitioners of the terms of this court’s stay. Ms. Gearhart was never told to delay discharge until the monitors arrived, nor was authorization for overbedding withheld until the monitors arrived at Beth Rifka.

The attorney-in-charge of Legal Aid’s Staten Island office, who had been asked by Ms. Barnett to contact Beth Rifka concerning health benefits for the patients and to inform petitioners of the judicial stay prohibiting their involuntary movement, began trying to telephone Ms. Gearhart the morning of February 17. She contacted the nursing home at about 10:55 a.m. and was informed that Ms. Gearhart was too busy to speak with her. The attorney was left on hold, at her request, until 11:30 a.m., when Ms. Gearhart came to the telephone and told the attorney that the question of funds for the patients was complex and she had no time to discuss it just then. When the attorney called Beth Rifka again at 2:00 p.m. she was informed that the patients were gone. In fact, it appears that all patients had been transferred out by 12:40 p.m. when Department of Health monitors arrived at the nursing home.

On the basis of this record, Justice Gagliardi concluded that: (1) petitioners had been transferred from Beth Rifka involuntarily on February 18; (2) that the Department of Health facilitated and participated in the patients’ transfers after obtaining knowledge that this court had stayed their involuntary movement; and (3) Beth Rifka and Ms. Gearhart discharged petitioners and transferred them against their will, when counsel had knowledge that petitioners had obtained a stay. We accept these findings as representing the most reasonable interpretation of the evidence and conclude that petitioners have demonstrated, with reasonable certainty, that respondents have, by their conduct, deprived them of a substantial right secured by the stay and should therefore be held in contempt. Further, we fix the fine at the amount of damages found by Justice Gagliardi to have been suffered by the three petitioners as a result of respondents’ disregard of this court’s stay.

II

Petitioners sought, by this motion, to have this court hold respondents in contempt pursuant to section 753 (subd A, par 3) of the Judiciary Law, which provides, in relevant part: “A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases: * * * 3. A party to the action or special proceeding * * * for any other disobedience to a lawful mandate of the court”. Civil contempt has as its aim the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right (State of New York v Unique Ideas, 44 NY2d 345). Criminal contempt, on the other hand, involves vindication of an offense against public justice and is utilized to protect the dignity of the judicial system and to compel respect for its mandates (King v Barnes, 113 NY 476). Inasmuch as the objective is deterrence of disobedience of judicial mandates, the penalty imposed is punitive in nature (State of New York v Unique Ideas, supra). Although the line between the two types of contempt may be difficult to draw in a given case, and the same act may be punishable as both a civil and a criminal contempt, the element which serves to elevate a contempt from civil to criminal is the level of willfulness with which the conduct is carried out (compare Judiciary Law, § 753, subd A, par 3 [civil contempt], with id., § 750, subd A, par 3 [criminal contempt]; see, e.g., Sentry Armored Courier Corp. v New York City Off-Track Betting Corp., 75 AD2d 344). It is clear, in the present case, that the record does not support a finding of the willfulness necessary to hold respondents, particularly the Commissioner of Health, in criminal contempt. Accordingly, our further discussion is limited to the elements of civil contempt.

In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed (e.g., Pereira v Pereira, 35 NY2d 301, 308; Matter of Spector v Allen, 281 NY 251, 259; Ketchum v Edwards, 153 NY 534, 539; Coan v Coan, 86 AD2d 640, 641, app dsmd 56 NY2d 804). Moreover, the party to be held in contempt must have had knowledge of the court’s order, although it is not necessary that the order actually have been served upon the party (e.g., People ex rel. Stearns v Marr, 181 NY 463, 470; Power Auth. of State of N. Y. v Moeller, 57 AD2d 380, 382; Shakun v Shakun, 11 AD2d 724). Finally, prejudice to the right of a party to the litigation must be demonstrated (see Judiciary Law, § 753, subd A).

This court’s February 17 stay order expresses a clear mandate that “all steps and/or proceedings * * * to effect the involuntary discharge of the remaining residents of the Beth Rifka Nursing Home [are] stayed pending hearing and determination of the appeal herein”, which was in effect at the time petitioners were transferred. The commissioner’s argument that this language can only be interpreted as prohibiting him from setting another date for discharge represents a misreading of the clear language of the order. The broad language prohibiting involuntary discharge makes plain that the residents were not to be removed against their will.

The order’s clear mandate was violated when petitioners were transferred from Beth Rifka over their expressed protests that they did not wish to leave. The nursing home and Ms. Gearhart were, of course, directly responsible for the involuntary discharge. The Department of Health, as found by Justice Gagliardi, facilitated and participated in the patients’ transfers. Although department personnel testified that they were aware that involuntary movement of the patients was prohibited by the order, no effort was made to ascertain whether they were leaving voluntarily. Given the extent to which petitioners had pursued their desire to remain at Beth Rifka until a receiver was appointed, it was entirely unreasonable to assume that, the very day after petitioners had been granted a stay, they were leaving voluntarily. Thus, we conclude that department personnel should have known that petitioners were being transferred against their will or, at the very least, acted or refrained from acting at their peril without having verified that the transfers were voluntary. Their subsequent participation in and facilitation of the discharge by approving appropriate levels of care, authorizing over-bedding in other facilities and permitting the transfers to be accomplished without even having monitors present must be deemed conduct in violation of the stay. Without the department’s intervention, the transfers could not have been completed. It is clear that a party who assists another in a violation of judicial mandate can be equally as guilty of contempt as the primary contemnor (People ex rel. Drake v Andrews, 197 NY 53; People ex rel. Stearns v Marr, 181 NY 463). Thus, although the department’s participation in the patients’ involuntary discharges was only indirect, its assistance to the nursing home forms the basis for the conclusion that the department also violated the stay.

We also conclude that all parties or their counsel, had sufficient knowledge, actual or imputed, of the terms of the stay, to render their conduct in disregard of the stay contumacious. Counsel for the nursing home and its administrator testified that he learned from the Court of Appeals clerk’s office only that petitioners had obtained a “continuation” of the stay. Counsel interpreted this to mean that the commissioner’s prior agreement to forbear from closing Beth Rifka had been continued and that his clients were therefore under no restraints. He attempted to bring this “anomaly” to the attention of the clerk’s office, but was informed simply that this court had surely considered the effect of its order. Despite the perceived existence of this anomaly, counsel never undertook to learn the precise terms of the stay. Under the circumstances, we conclude that his failure to do so was entirely unreasonable. Counsel had represented the nursing home and Ms. Gearhart throughout this proceeding, in which they were named respondents and received all papers, including the order to show cause, which clearly indicated that petitioners sought a stay against their involuntary discharge. Counsel assumed that the stay applied only to the commissioner at his own peril; he was not entitled to avoid its effect by failing to inquire further. Moreover, Ms. Gearhart indicated her personal awareness of the thrust of the stay, by her failure to inform the Legal Aid attorney that patients were being discharged at the very moment the attorney was waiting to speak with her about possible sources of continued funding. It is not without significance that neither Ms. Gearhart nor any other person from the nursing home testified at the hearing in opposition to the evidence of their possibly contumacious conduct.

Department of Health personnel testified that they knew of the stay, but not its precise terms. Although there is testimony that the department believed that the commissioner was merely prohibited from closing down the nursing home, other testimony indicates awareness that the stay was against the patients’ involuntary movement. Further, we conclude that the department also had an obligation, once it knew that a stay had been granted, to determine what its terms were. Moreover, it appears that department personnel undertook a course of conduct designed to accomplish transfer of the patients while creating the appearance that the department was uninvolved. In particular, concern was expressed on February 18 that if the Legal Aid attorneys were to find out what was taking place at Beth Rifka, they might try to have the commissioner held in contempt. The log entries of Ms. Kesner, in which she detailed her conversations concerning the events at the nursing home demonstrate a keen awareness of the possibility that the stay might be violated by Department of Health activities.

It is argued, on behalf of the commissioner that he personally did nothing to violate our stay order and that he cannot be held in contempt solely on the basis of his subordinates’ conduct. The commissioner is named as a party in this proceeding and on the stay order. Although we realize that he personally engaged in no purposeful conduct in violation of this court’s order, it is equally clear that he delegated to his subordinates the authority to act for him in this matter and must remain accountable for the manner in which it was handled by his staff. The commissioner is being held in contempt, not personally, but solely in his representative capacity as head of a very large State agency. Although we recognize the difficult position the commissioner is placed in when his staff fails to comply with a court order properly, nevertheless, this court cannot be expected to name every one of the commissioner’s employees in its order to ensure its effectiveness. The commissioner having chosen to act through his subordinates may not escape the consequences of their contumacious conduct (see, e.g., Friendly Ice Cream Corp. v Great Eastern Mall, 51 AD2d 883, app dsmd 39 NY2d 1032; Matter of Otis A., 89 Misc 2d 109).

Finally, petitioners were clearly deprived of a substantial right by the conduct of respondents. They commenced this proceeding to have a receiver appointed to supervise their discharge from Beth Rifka. The stay was meant to ensure that any relief petitioners might be deemed entitled to was not rendered altogether academic by their involuntary, unsupervised discharge pending decision of the appeal. Petitioners’ discharge in violation of that stay deprived them of their potential right to be transferred in an orderly responsible manner under the direct supervision of the Department of Health. Although it is unnecessary to this finding, it is not insignificant that we have determined that petitioners were entitled to the relief they sought (see Matter of McCormick v Axelrod, 59 NY2d 568 [decided herewith]). Petitioners’ damages were determined by Justice Gagliardi based upon such factors as the degree of emotional upset suffered by each of these elderly women, the period of time required for adjustment to their new surroundings, and the benefits to petitioners from their new placements. We conclude that the damage amounts reached are reasonable.

Accordingly, petitioners’ motion to hold respondents Commissioner of Health, Beth Rifka, Inc., and Sally Gear-hart in contempt is granted, and respondents áre fined in the total amount of $4,000 for which they shall be deemed jointly and severally liable to be paid to petitioners as follows: $2,500 to be paid to petitioner Louise McCormick; $1,000 to be paid to petitioner Maria Bonsignore; $500 to be paid to petitioner Theresa Coppola.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Simons concur in Per Curiam opinion; Judge Meyer taking no part.

Motion to hold respondents Commissioner of Health, Beth Rifka, Inc., and Sally Gearhart in contempt granted, etc.

      . Although the motion papers indicated that petitioners also sought to hold the commissioner in contempt for having violated his January 28 agreement, petitioners appear to have abandoned this effort. It is clear, in any event, that even if the commissioner’s conduct were contrary to this agreement, which does not appear to be the case, the agreement qould not have been violated, because it had expired by its own terms when this court decided petitioners’ motion, before the remaining residents were discharged.

      . Ms. Kesner recorded the following entry in her log after learning that Beth Rifka was closing: “Any calls about the move refer to Beth Rifka for information; we are aware * * * don’t release anything. When Legal Aid hears will go to court against involuntary movement and allege Commissioner is in contempt; be careful to say to facility staff and keep a log; if Beth Rifka is sending patients *** that placement is appropriate, it is all right with us for patient to be placed with you today”.
      After she learned that all patients had been transferred from Beth Rifka, Ms. Kesner recorded this entry: “John [Stefani, counsel to Department of Health]. Just spoke to Peter Shieff in AG’s office, wants us to be very careful; do we have a monitor 2/17/83 at Beth Rifka? Write down notes about what they did. Also today’s monitors; log what we did step by step; should demonstrate activity today was at Beth Rifka’s; nothing we did precipitated it”.


author: Jones, J. Simons, J.

text:
    In the Matter of Jamie D., a Person Alleged to be a Juvenile Delinquent, Respondent. City of New York, Appellant.
    Argued June 8, 1983;
    decided July 12, 1983

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Michael S. Adler, Leonard Koerner and Carolyn E. Demarest of counsel), for appellant.
    I. The phrase “any dangerous knife” in section 265.05 of the Penal Law should be interpreted as encompassing both knives that are dangerous per se and utilitarian knives that are dangerous under the surrounding circumstances. The steak knife protruding from respondent’s belt was a dangerous knife under the circumstances. (Fall v Esso Std. Oil Co., 297 F2d 411, 371 US 814; United States v Hamilton, 626 F2d 348, 449 US 902; United States v Buchanon, 529 F2d 1148, 425 US 950; United States v Johnson, 324 F2d 264; United States v Barber, 297 F Supp 917; Matter of Ricci S., 41 AD2d 406, 34 NY2d 775; Matter of Bush v Bethlehem Steel Corp., 39 AD2d 989; Matter of Sheehy v Doyle, 8 AD2d 267.) II. Assuming, arguendo, that the phrase “any dangerous knife” in section 265.05 of the Penal Law is interpreted as encompassing only knives that are designed, modified, or adapted for use primarily as a weapon, the knife carried by respondent satisfies that criterion.

      John F. McGlynn and Lenore Gittis for respondent.
    An ordinary steak knife designed for innocent and lawful culinary purposes does not constitute a “dangerous knife” within the meaning of section 265.05 of the Penal Law.
      (People v Criscuoli, 157 App Div 201; Matter of Ricci S., 34 NY2d 775; People v Rosello, 36 AD2d 595; Matter of Chidi N., 65 AD2d 688; People v Glassman, 255 App Div 997; Matter of Talmadge v Talmadge, 54 AD2d 581; People v Kinred, 18 AD2d 1086; People v Panitz, 251 App Div 276; People v Criscuoli, 164 App Div 119; Feder v Caliquira, 8 NY2d 400.)
   OPINION OF THE COURT

Jones, J.

A knife which may not come within the term “dangerous knife” under section 265.05 of the Penal Law by reason of its inherent characteristics may nonetheless be determined to fall within the statutory prescription when the circumstances of its possession including the behavior of its possessor demonstrate that the possessor himself considered it a weapon and thus a “dangerous knife” within the contemplation of the statute.

A petition was filed in Bronx County Family Court alleging that respondent had possessed a dangerous knife in violation of subdivision (2) of section 265.01 (criminal possession of a weapon with intent to use it unlawfully against another) and section 265.05 of the Penal Law (unlawful possession of a weapon by a person under 16). At the fact-finding hearing evidence was introduced that on January 31, 1980 respondent, then under 16 years of age, and another youth were observed with guns attempting,to rob a youngster and that when a passer-by went to the assistance of the youngster the two youths told him to get away or they would blow his head off. A police officer and a security officer from a nearby department store apprehended the two youths after a chase. When respondent placed his hand at his belt line one of the officers ordered him to remove his hand. When he refused to do so, after the other officer came to the assistance of the first, respondent’s resistance was overcome, his hand was removed and a knife was revealed protruding from his belt. The knife was removed, and both youths were arrested.

Family Court dismissed the charge under subdivision (2) of section 265.01 (possession with intent to use against another) but sustained the charge under section 265.05 (possession by a person under 16). Following a dispositional hearing respondent was adjudicated a juvenile delinquent and placed on probation for one year. The Appellate Division reversed the order of disposition, on the law, and dismissed the petition on the ground that the knife in question was not a “dangerous knife” within the contemplation of the statute. We reverse and reinstate the order of disposition.

Section 265.05 of the Penal Law provides:

“Unlawful possession of weapons by persons under sixteen.

“It shall be unlawful for any person under the age of sixteen to possess any air-gun, spring-gun or other instrument or weapon in which the propelling force is a spring or air, or any gun or any instrument or weapon in or upon which any loaded or blank cartridges may be used, or any loaded or blank cartridges or ammunition therefor, or any dangerous knife.

“A person who violates the provisions of this section shall be adjudged a juvenile delinquent.”

The knife here in question was described by the Family Court Judge as “the kind of knife usually found in the kitchen in the home or in a place where food is served and [the kind] used for such activities as cutting steaks”. The court estimated that its blade measured five inches in length.

The statute contains no definition of the term “dangerous knife” (cf. Penal Law, § 10.00, subd 13, defining “dangerous instrument”). In the context in which it appears the term “dangerous knife” connotes a knife which may be characterized as a weapon. The title to the section refers to weapons and the other articles enumerated in it are inherently weapons or for use with weapons. It is the possession of “an instrument of offensive or defensive combat” (Webster’s Third New International Dictionary, defining “weapon”, p 2589) which is the essence of the criminal prescription.

Viewed from this perspective a knife may come within the scope of the statute in some instances because of its own characteristics. Thus, a bayonet, a stiletto, or a dagger, while each may possibly be employed for utilitarian purposes, is primarily intended for use as a weapon. Possession of such an instrument without more would fall within the scope of the statute.

Whether other knives, designed and primarily intended for use as utilitarian utensils, would come within the statutory contemplation may be determined by either of two, or perhaps other, considerations. First, as we suggested in Matter of Ricci S. (34 NY2d 775, 776), in consequence of physical modification what would otherwise be a utensil may be converted into a weapon. Alternatively, the circumstances of its possession, although there has been no modification of the implement, may permit a finding that on the occasion of its possession it was essentially a weapon rather than a utensil. The definition of a “dangerous instrument” found in subdivision 13 of section 10.00 of the Penal Law is not made explicitly applicable to the term “dangerous knife” in section 265.05. Nonetheless, the subdivision states a sound criminological principle, that criminal behavior may be determined from the particular manner and context of activity which might be wholly innocent in other circumstances. The application of the principle may be illustrated by comparison of the factual situations in Ricci S. and in the present case.

In Ricci S. while the police were conducting a search of an apartment which they had had under surveillance in connection with suspected activity in narcotics, the defendant came on the scene. When he was being searched for possession of narcotics, the police discovered a hunting knife on his person. There was nothing in the characteristics of the knife or in the circumstances of its possession to suggest that it was other than what it appeared to be — a utilitarian hunting knife and not a weapon.

By contrast, in the present case, respondent had demonstrated his disposition to violence and criminal activity and then, when accosted, by his behavior and reluctance to give up the knife effectively manifested that he himself considered it a weapon of significance to the police and not an innocent utilitarian utensil. In these circumstances Family Court was warranted in determining that the knife in question was a dangerous knife within the meaning of section 265.05 of the Penal Law.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the case remitted to the Appellate Division pursuant to CPLR 5613.

Simons, J.

(dissenting). The majority’s effort to define what is and what is not a “dangerous knife” within the meaning of section 265.05 of the Penal Law is understandable, but doing so by reference to the conduct and intent of the possessor is unwarranted. I, therefore, dissent and vote to affirm.

The statute makes it a crime for a person under 16 years of age to possess a “dangerous knife”. The term is undefined and almost beyond salvage by judicial construction because all knives are dangerous. The majority has construed the statute to define the crime by reference to defendant’s subjective intent, “the possessor himself considered it a weapon”, and by his behavior subjectively evaluated, a demonstrated “disposition to violence and criminal activity” (pp 591, 593). Nothing in the statute Or its history indicates that the Legislature intended the crime to include some lesser element of mental culpability and insofar as it does so, it encroaches on the previously dismissed count charging respondent with criminal possession with intent to use it against another (Penal Law, § 265.01, subd [2]). Moreover, the inclusion of respondent’s behavior as an element of the crime introduces another subjective element and criminalizes conduct other than the possession of a knife when there is no indication the Legislature intended to do so. The provisions of the Penal Law are to be construed according to the fair import of their terms, but nothing suggests that section 265.05 encompasses possession in which subjective thoughts and behavior of the respondent are elements of the crime.

In the only other case in which this court considered the statute, we defined it by objective standards of size or modification (see Matter of Ricci S. (34 NY2d 775). Although that definition may not be entirely satisfactory, it is appropriate and should be followed until the Legislature amends the statute. It is not for this court to redefine the crime.

The order should be affirmed.

Chief Judge Cooke and Judges Jasen and Meyer concur with Judge Jones; Judge Simons dissents and votes to affirm in a separate opinion in which Judge Wachtler concurs.

Order reversed, without costs, and matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

       Subdivision 13 provides: “ ‘Dangerous instrument’ means any instrument, article or substance, including a ‘vehicle’ as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.”


text:
    Trajam Realty Corporation, Respondent, v Abraham J. Hirschfeld et al., Appellants.
    Argued March 22, 1983;
    decided April 26, 1983

      APPEARANCES OF COUNSEL

      Owen McGivern, Frank S. Ioppolo, Allan R. Freedman and Marc E. Fleischman for appellants.

      Edward J. Reilly for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by former Justice Arthur Markewich at the Appellate Division (87 AD2d 468).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Simons. Taking no part: Judges Fuchs-berg and Meyer.


text:
    Alessandro Faravelli, Doing Business as Guisto Faravelli, s.a.s., Plaintiff, v Bankers Trust Company et al., Defendants. Bankers Trust Company, Defendant and Third-Party Plaintiff, v Credito Italiano, Third-Party Defendant. Bankers Trust Company, Defendant and Third-Party Plaintiff-Appellant-Respondent, v Punjab & Sind Bank, Ltd., Third-Party Defendant-Respondent-Appellant.

      Argued March 21, 1983;
    decided April 26, 1983

      APPEARANCES OF COUNSEL

      Jack H. "Weiner and Charles Leeds for appellant-respondent.

      Kurt Dinkelmeyer for respondent-appellant.
   OPINION OF THE COURT

On appeal by Bankers Trust Company: Order affirmed, with costs. There was no jurisdiction for the reasons stated in the opinion by Justice Arnold L. Fein at the Appellate Division (85 AD2d 335).

On appeal by Punjab & Sind Bank, Ltd.: Appeal dismissed, without costs, upon the ground that appellant is not a party aggrieved (CPLR 5511).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons.


text:
    Clara Shelden, Appellant, v Hample Equipment Company, Inc., et al., Respondents.
    Argued March 23, 1983;
    decided April 26, 1983

      APPEARANCES OF COUNSEL

      Frederick J. De Filippo for appellant.

      Stephen D. Smyk for Hample Equipment Company, Inc., respondent.

      Joan Squires Lind for Cory Food Services, Inc., respondent.

      Edward B. Hoffman for Corning Glass Works, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (89 AD2d 766).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons.


text:
    The People of the State of New York, Respondent, v James Harrell, Appellant.
    Argued March 23, 1983;
    decided April 26, 1983

      APPEARANCES OF COUNSEL
    A. Brent Blacksburg for appellant.

      Kenneth Gribetz, District Attorney (Stephen B. Lowe and James H. Mellion of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Not having been raised either at the suppression hearing or as a ground for objection to the admission of the evidence at trial, defendant’s present contention that the statement made in his jail cell by him to his mother was inadmissible as having been obtained in violation of a purported parent-child privilege has not been preserved for our review. Accordingly, we have no occasion to address defendant’s claim that such a privilege should be recognized.

Both the suppression court and the Appellate Division found that the statement made in the police car by defendant to Heath was spontaneous and not the product of custodial interrogation. In view of the evidence in the record supporting this finding we cannot say that it was erroneous as a matter of law.

There is no merit to defendant’s contention that the evidence was insufficient to sustain the jury verdict that defendant was guilty on all counts charged.

No timely protest by way of request or exception having been registered with regard thereto, defendant’s present assertions that the trial court erroneously failed to instruct the jury as to the defense of justification and in other respects have not been preserved for our review.

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

Order affirmed in a memorandum.


text:
    Robert J. Sommella et al., Respondents, v Richard Roach et al., Defendants, and Great River Pools, Inc., et al., Appellants. (And Other Actions.) (Action No. 1.) Robert J. Sommella et al., Respondents, v John Holze et al., Respondents. (And Other Actions.) (Action No. 2.)
    Decided April 26, 1983

      APPEARANCES OF COUNSEL

      Morris Zweibel for Great River Pools, Inc., and others, appellants.

      Stephen M. McCabe for Dover Pools, Inc., and another, appellants.

      Peter James Johnson for Robert J. Sommella and another, respondents.

      George D. Argiriou and William A. Scorzari for John Holze, respondent.

      Charles B. Updike for Union Carbide Corporation, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. We agree with the Appellate Division that there have not been shown facts sufficient to require a trial of the claim that John Holze disconnected the rope marker in the swimming pool (CPLR 3212, subd [b]).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons.


text:
    Amsterdam Urban Renewal Agency, Respondent, v Francis L. McGrattan et al., Appellants.
    Decided April 26, 1983

      APPEARANCES OF COUNSEL

      Richard A. Insogna for appellants.

      Vincent E. Vicinanzo for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (91 AD2d 792).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons. -


text:
    Patrick Cicorelli et al., Respondents, v Donald Capobianco, Appellant.
    Argued March 21, 1983;
    decided April 26, 1983

      APPEARANCES OF COUNSEL

      James M. O’Brien, Eugene McGarry and Kevin J. Murtagh for appellant.

      Jeffrey G. Stark for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (90 AD2d 524).

Concur: Chief Judge Cooke and Judges. Jasen, Jones, Wachtler, Fuchsberg and Simons. Taking no part: Judge Meyer.


text:
    Dorothy Steckal, Appellant, v Haughton Elevator Co., Inc., et al., Respondents.
    Argued March 21, 1983;
    decided April 26, 1983
    APPEARANCES OF COUNSEL

      Frederic Block for appellant.

      Reid A. Curtis and Wade T. Dempsey for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs.

Although the words “strictly liable” appear in plaintiff’s complaint, there was no request to charge on such a theory nor was plaintiff’s motion for a directed verdict made on any such ground. Moreover, there is no proof that the elevator was defective when it left defendants’ hands, an essential of a strict liability cause of action. That defendants both supplied the elevator and serviced it after installation would not impose upon them strict liability for a defect which developed after installation was completed.

Nor is plaintiff’s case helped by the 1975 amendment to section 2-318 of the Uniform Commercial Code, if its applicability be assumed, there being no evidence in this record that the delivery of the elevator occurred after the effective date of that amendment (Fisher v Graco, Inc., 81 AD2d 209, 211, app withdrawn 54 NY2d 1027).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Estate of Aspasia E. Zaharis, Also Known as Tessie Zaharis, Deceased. Nicholas Stamatakos et al., Respondents; Dino Theodoropoulos et al., Appellants.
    Decided April 26, 1983

      APPEARANCES OF COUNSEL

      Angelos Peter Romas for Dino Theodoropoulos, appellant.

      Peter A. Daniels for Greek Orthodox Community of Holy Trinity, Binghamton, N. Y., Inc., appellant.

      Paul E. Pool for Nicholas Stamatakos, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (91 AD2d 737).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons.


text:
    In the Matter of Donovan E. Kretser, Appellant, v Ann M. Kretser, Also Known as Yamuna Dujany, Respondent.
    Decided April 26, 1983

      APPEARANCES OF COUNSEL

      Stanley A. Rosen for appellant.

      Isabelle Ravoich for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not a question of law (CPLR 5601, subd [a], par [i]).


text:
    Ante Kurtin, Appellant, v Cating Rope Works, Inc., et al., Respondents. (And a Third-Party Action.)
    Decided April 26, 1983

      APPEARANCES OF COUNSEL

      Brian J. Shoot for appellant.

      Eugene H. Lieber and Anthony J. McNulty for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and case remitted to the Appellate Division, Second Department, for review of the facts (see Miskiewicz v Hartley Rest. Corp., 58 NY2d 963; CPLR 5613).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons.


text:
    John W. Cowper Company, Incorporated, Appellant, v Buffalo Hotel Development Venture et al., Respondents, et al., Defendants.
    Decided April 26, 1983
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of Lillian Liss, Appellant, v Anthony Sadowski et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued April 26, 1983;
    decided April 27, 1983
    APPEARANCES OF COUNSEL

      Saul Rudes for appellant.

      Robert Schmukler for David Kaplan, respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant filed designating petitions for a seat on the school board of Community School District No. 15 in Brooklyn. On a number of petitions, sufficient to affect the validity of appellant’s candidacy, the subscribing witness transposed the numbers of his election district and his assembly district. This defect is fatal. The provisions of the Election Law governing the nomination of candidates apply to the election of community school board members (see Education Law, § 2590-c, subd 6, par [31]). It is established that the requirement of subdivision 1 of section 6-140 of the Election Law that the subscribing witnesses set forth their election and assembly districts on designating petitions is to be strictly enforced (see Matter of Higby v Mahoney, 48 NY2d 15).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur; Judge Fuchsberg taking no part.

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Leon Schwimmer, Respondent, v Edward Hammock, as Chairman of the New York State Board of Parole, Appellant.
    Argued March 23, 1983;
    decided April 28, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Grace A. Brannigan, Peter H. Schiff, Gerald Ryan and Bridget E. Farrell of counsel), for appellant.

      Barry J. Teller for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, the determination of the Board of Parole reinstated, and the petition dismissed.

Petitioner was convicted of grand larceny in the second degree and was sentenced on January 16, 1980, to an indeterminate period of zero to three years in prison. The sentencing court did not set a minimum period of incarceration (MPI). Under the law in existence at the time of sentencing, if the sentencing court in its discretion did not set an MPI, the State Board of Parole was empowered to do so. The Board of Parole did not set petitioner’s MPI, however, until April 27, 1982, after his conviction had been affirmed and he had surrendered to serve his sentence. His MPI was. set at 28 months.

In this CPLR article 78 proceeding, petitioner challenges the authority of the Board of Parole to fix his MPI. This claim is grounded on an amendment to subdivision 3 of section 70.00 of the Penal Law that took effect after he was sentenced but before his MPI was set. Effective September 1, 1980, the authority of the Board of Parole to fix MPI’s was repealed and exclusive power for establishing MPI’s was vested in the sentencing court (see L 1980, ch 873).

Petitioner’s argument that the amendment should be applied retroactively to require his return to the sentencing court for the setting of an MPI is unpersuasive. At the time petitioner was sentenced, the Board of Parole had authority to fix petitioner’s MPI. Only petitioner’s release pending appeal prevented the board from acting before the amendment’s effective date. A prime goal of the legislation was to eliminate duplication by placing the function of setting MPI’s in one body (see memorandum of Governor on approving L 1980, ch 873, McKinney’s 1980 Session Laws of NY, p 1922). This purpose would not be furthered by requiring that inmates sentenced before September 1, 1980, but whose MPI’s were set after that date by the Board of Parole, be returned to the sentencing court for a new MPI determination. That the Legislature did not intend the amendment to apply to defendant’s sentence prior to its effective date is also reflected in its failure to repeal subdivision 1 of section 259-i of the Executive Law, which sets forth the procedures that the board must follow in setting MPI’s where the sentencing court has not done so. Although section 259-i does not confer any independent authority on the Board of Parole to set MPI’s, the failure to repeal it indicates that the Legislature contemplated that the Board of Parole would continue to set MPI’s for persons sentenced before September 1, 1980. The Board of Parole, therefore, acted within its authority when it established petitioner’s MPI.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur in memorandum.

Order reversed, etc.


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    In the Matter of the Claims of Joseph Di Martino et al., Respondents. Buffalo Courier Express Co., Inc., Appellant. Philip Ross, as Industrial Commissioner, Respondent. In the Matter of the Claim of David L. Wells, Respondent. Utica Observer-Dispatch & Utica Daily Press, Inc., Appellant. Lillian Roberts, as Industrial Commissioner, Respondent.
    Argued March 23, 1983;
    decided April 28, 1983

      APPEARANCES OF COUNSEL

      Bonnie Glatzer and Fredric H. Fischer for Buffalo Courier Express, appellant.

      William E. McKnight and Michael A. Hausknecht for Utica Observer-Dispatch & Utica Daily Press, Inc., appellant.

      Robert Abrams, Attorney-General (Paul S. Shemin, Peter H. Schiff and Iris A. Steel of counsel), for Philip Ross, Industrial Commissioner, respondent.

      John D. Chestara for David L. Wells, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, in each of these cases.

Whether the relationships of the bundle-haulers and the motor route carriers with the publishers are those of employees or independent contractors involves resolution of questions of fact. We agree with the Appellate Division that in each case, taken as a whole the proof in the record constituted substantial evidence sustaining the determination of the Unemployment Insurance Appeal Board that the relationship was that of employer-employee.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-. ler, Fuchsberg, Meyer and Simons concur.

In each case: Order affirmed, with costs, in memorandum.


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    The People of the State of New York ex rel. George Shippens, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Decided April 28, 1983

      APPEARANCES OF COUNSEL

      Norman P. Effman and Leigh E. Anderson for appellant.

      Robert Abrams, Attorney-General (Nancy A. Spiegel of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 870).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons.


text:
    In the Matter of John Coffey et al., Appellants, v Daniel W. Joy, as Commissioner of the Department of Housing Preservation and Development of the City of New York, Respondent.
    Decided April 28, 1983

      APPEARANCES OF COUNSEL

      Howard C. Amron for appellants.

      Harry Michaelson and Alan W. Ginsberg for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 923).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons.


text:
    Newin Corporation et al., Appellants, v Hartford Accident and Indemnity Company et al., Respondents, et al., Defendants.
    Decided April 28, 1983
    APPEARANCES OF COUNSEL

      Charles L. Stewart for appellants.

      William P. Sullivan, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for consideration of the appeal to it on the merits.

Plaintiffs had an appeal as of right to the Appellate Division (CPLR 5701, subd [a], par 2, els [iv], [v]). It was thus error for the Appellate Division to dismiss it as “nonappealable”.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


text:
    Suffolk County Water Authority, Respondent, v Board of Fire Commissioners, Centerport Fire District, Appellant.
    Argued March 22, 1983;
    decided April 28, 1983

      APPEARANCES OF COUNSEL

      Charles T. Matthews for appellant.

      LeRoy Van Nostrand, Jr.., for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (89 AD2d 849). In addition, we note that the appellant has cited no authority to support its contention that the respondent should have been compelled to enter into a contract specifying the terms on which respondent’s service was to be provided. Rather, the clear import of section 1085 of. the Public Authorities Law is that the making of such a contract is permissive. This statute, which applies specifically to the Suffolk County Water Authority, does no more than “authorize” the authority to contract with a municipality or fire district. Moreover, the inference that the statute is permissive is reinforced by the provision that, after a public hearing to be called by the prospective purchaser, its governing body “may authorize the execution [of a contract] by the adoption of a resolution to such effect” (emphasis supplied). Remaining doubt, if any, is dispelled by the fact that, even when such a contract is entered into, it yet must defer to “any resolution of the authority authorizing obligations relating to the imposition of rates, fees or charges and the revision or adjustment thereof”.

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

Order affirmed, with costs, in a memorandum.


text:
    Leonard Gray et al., Appellants-Respondents, v B. R. Trucking Co., Respondent-Appellant.
    Decided April 28, 1983
    appearances of counsel

      David Greifer and Morton Alpert for appellants-respondents.

      Steven Kent for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

On plaintiffs’ appeal the order of the Appellate Division should be reversed, defendant’s motion to vacate the default denied and the certified question answered in the affirmative. In view of this disposition made on plaintiffs’ appeal, defendant’s cross appeal should be dismissed as academic.

Defendant’s moving papers fail to demonstrate an acceptable excuse for its delay in appearing and answering plaintiffs’ complaint and a meritorious defense to the action. It was error, therefore, to vacate its default (see Eaton v Equitable Life Assur. Soc. of U. S., 56 NY2d 900).

The summons and complaint were served on defendant on August 4,1981 and he promptly delivered the papers.to his personal attorneys who, in turn, delivered them to defendant’s insurance carrier. The carrier then delivered the papers to its counsel. Notwithstanding the insured’s prompt action, counsel failed to serve a notice of appearance or an answer to the complaint until after plaintiff entered a default judgment in January, 1982. During the period defense counsel did attempt to extend the time to appear by unilaterally serving a stipulation on plaintiff’s counsel on October 8,1981, but the stipulation was refused and it cannot serve as an appearance to extend defendant’s time to appear or avoid its default. Moreover, the only “defense” alleged by counsel retained to represent defendant is that there may be a question of coverage on the claim. That defense does not relate to the merits of the main action and is legally insufficient on this motion.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur in memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]):

On plaintiffs’ appeal: Order reversed, with costs, defendant’s motion to vacate the default denied and question certified answered in the affirmative.

On defendant’s cross appeal: Cross appeal dismissed, without costs.


text:
    L. F. Rothschild, Unterberg, Towbin, Appellant, v Bernard McTamney, Respondent.
    Submitted March 23, 1983;
    decided April 28, 1983

      APPEARANCES OF COUNSEL

      David B. Eizenman and Joel David Sharrow for appellant.

      Mitchell L. Marinello and Raymond T. Munsell for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (89 AD2d 540).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons.


text:
    Alwyn Court Tenants' Association et al., Appellants, v David C. Walentas et al., Respondents.
    Argued February 15, 1983;
    decided March 22, 1983,
    amended June 2, 1983

      APPEARANCES OF COUNSEL

      Anne Jaffee for appellants.

      Richard S. Fischbein for David C. Walentas and others, respondents.

      Robert Abrams, Attorney-General (Gerald J. Hurwitz and R. Scott Greathead of counsel), respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, to the extent of granting summary judgment to plaintiffs-appellants annulling the declaration of effectiveness of the eviction plan for co-operative conversion of Alwyn Court, and the case remitted to Supreme Court for further proceedings. The question certified should be answered in the negative.

The critical issue on this appeal (as to which the Appellate Division, notwithstanding that it later granted leave to appeal to our court, expressed no opinion) is whether, on the date the declaration of effectiveness of the eviction plan for co-operative conversion of Alwyn Court was filed with the Attorney-General, a sufficient number of tenants in occupancy of the building known as Alwyn Court had agreed to purchase their residential apartments to warrant the declaration that the proposed plan was effective under the applicable provisions of the Rent Stabilization Law and Code of the Rent Stabilization Association of New York City, Inc. (Code). It is unquestioned that 35% is the critical level; the parties differ as to the base group of tenants against which this percentage is to be applied.

Section 61 (subd 4, par [a]) of the Code, one of the applicable provisions, reads in part: “In establishing a base for computing the required 35 percent all residential apartments in the building shall be included”. Recognizing that the interpretations placed on the law and Code sections by the Attorney-General have not always been consistent and that such sections are far from a model of drafting clarity, we conclude that, for the purposes of this case, the quoted sentence should be read as mandating at least that there be agreements to purchase on the part of 35% of the tenants in occupancy of all residential apartments in the building, including apartments subject to rent stabilization and apartments subject to rent control. Inasmuch as it is undisputed that there was a failure to meet that requirement in this instance and the issues in contention have largely been resolved for the future in consequence of the enactment of chapter 555 of the Laws of 1982, there is no necessity for us to reach the other questions tendered by the parties.

Plaintiffs are therefore entitled to a declaration that, inasmuch as the requirements of the Rent Stabilization Law and Code were not met, the acceptance for filing of the declaration of effectiveness of the eviction plpn for cooperative conversion of Alwyn Court, as amended, be vacated and set aside. We determine no other issue, but remit the action to Supreme Court for such further proceedings as may be appropriate.

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

Order modified, without costs, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.


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    The People of the State of New York, Respondent, v John Doe, Appellant.
    Decided April 28, 1983

      APPEARANCES OF COUNSEL

      Robert J. Hirsch and Richard S. Tubiolo for appellants.

      Donald O. Chesworth, Jr., District Attorney (Wendy Evans Lehmann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Fifth Amendment privilege which exists as to private papers cannot be asserted with respect to records which are required, by law, to be kept and which are subject to governmental regulation and inspection. (See Shapiro v United States, 335 US 1, 33; Davis v United States, 328 US 582, 589-590; Wilson v United States, 221 US 361, 380; Matter of Cappetta, 42 NY2d 1066, 1067; Matter of Sigety v Hynes, 38 NY2d 260, 268.) To hold otherwise and allow the privilege to cloak such records would make enforcement of State and Federal laws impossible. (United States v White, 322 US 694, 700.)

In light of the fact that the physician appellants in this case were required to maintain the subject records (8 NYCRR 29.2 [3]) and, under certain circumstances, make them available for governmental inspection (Public Health Law, § 230, subd 10, par [k]), we hold that appellants’ personal privilege against self incrimination does not apply to the records sought here.

With respect to appellants’ claim that the demand for billing records exceeds the scope of disclosure pursuant to section 17 of the Public Health Law, we note that CPL 190.40 (subd 1) requires witnesses in Grand Jury proceedings to provide “any evidence legally requested”.

In light of the disposition of this appeal on the basis of the “required records exception” (Matter of Cappetta, 42 NY2d 1066, supra), it is unnecessary to pass on the other issues raised by the appellants.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Simons taking no part.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.

       Each of the patients whose records were subpoenaed have authorized their release.