author: Simons, J.

text:
    In the Matter of Allstate Insurance Company, Respondent, v Eric Killakey, Individually and as Administrator of the Estate of Nancy Pommerenk, Also Known as Nancy P. Killakey, Deceased, Appellant.
    Argued September 5, 1991;
    decided October 10, 1991

      POINTS OF COUNSEL

      Brendan F. Gallagher and Edward J. Donlon for appellant.
    When the wheel and tire — admittedly from a "hit-and-run” car — smashes into an innocent vehicle, killing a passenger, there is sufficient "physical contact” under section 5217 of the Insurance Law to protect insurers from fraudulent claims. (Matter of Smith [Great Am. Ins. Co.], 29 NY2d 116; Government Employees Ins. Co. v Goldschlager, 44 AD2d 715; Motor Vehicle Acc. Indemnification Corp. v Eisenberg, 18 NY2d 1; Matter of Utica Mut. Ins. Co. v Tucker, 132 Misc 2d 920; Matter of Aetna Cas. & Sur. Co. v Loy, 108 AD2d 709; Matter of Diaz v Motor Vehicle Acc. Indemnification Corp., 82 AD2d 749; Matter of Eagle Ins. v Watanabe, 171 AD2d 451; Matter of Utica Mut. Ins. Co. v Spenningsby, 133 AD2d 765; Gavin v Motor Vehicle Acc. Indemnification Corp., 57 Misc 2d 335.)

      Marshall D. Sweetbaum and Benjamin Purvin for respondent.
    The Supreme Court and the Appellate Division properly resolved the issue of "hit-and-run” involvement against respondent-appellant. (Canter v American Cyanamid Co., 12 AD2d 691; Matter of Smith [Great Am. Ins. Co.], 29 NY2d 116; Matter of Diaz v Motor Vehicle Acc. Indemnification Corp., 82 AD2d 749; Government Employees Ins. Co. v Goldschlager, 44 AD2d 715; Matter of Aetna Cas. & Sur. Co. v Loy, 108 AD2d 709; Gavin v Motor Vehicle Acc. Indemnification Corp., hi Misc 2d 335; Goncalves v Regent Intl. Hotel, 58 NY2d 206.)
   OPINION OF THE COURT

Simons, J.

Respondent Eric Killakey has demanded arbitration of a claim against petitioner Allstate Insurance Company on behalf of his deceased wife. She was killed while riding in an automobile, owned by her and driven by respondent, when it was involved in an accident with a hit-and-run vehicle. Prior to the accident, the decedent had purchased an automobile insurance policy from petitioner containing an uninsured motorist endorsement which provided for recovery for bodily injury caused by a hit-and-run vehicle.

Petitioner seeks to stay the arbitration, contending that respondent’s claim is not compensable under the policy because there was no "physical contact” between the Killakey vehicle and the unidentified vehicle. Its denial of coverage is premised on evidence that the accident did not occur after contact with another automobile but rather after the tire and rim from an unidentified vehicle struck the windshield of decedent’s car and caused it to crash. The courts below granted the petition and stayed arbitration. They rested their decisions on language found in Matter of Smith (Great Am. Ins. Co.) (29 NY2d 116), which some authorities have interpreted to foreclose coverage under the circumstances presented here. We granted leave to appeal so that we might clarify the Smith holding.

Although respondent’s claim is made under the deceased’s automobile insurance policy, the policy’s uninsured motorist endorsement follows the statutory language of Insurance Law §5217 with respect to "hit-and-run” accidents, and, thus, is subject to the same interpretation (see, Matter of Smith [Great Am. Ins. Co.], 29 NY2d 116, 118, supra). Accordingly, our analysis addresses both decisions interpreting section 5217 which applies to New York residents not covered by insurance and decisions involving claims presented by insureds against their insurer.

The Motor Vehicle Accident Indemnification Corporation Act (Insurance Law art 52) was enacted for the purpose of "securing to innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them” (Insurance Law § 5201 [b]; see also, Matter of Smith [Great Am. Ins. Co.] 29 NY2d 116, supra; Motor Vehicle Acc. Indemnification Corp. v Eisenberg, 18 NY2d 1). To further this purpose, the act requires insurance protection for persons injured or killed in motor vehicle accidents involving hit-and-run vehicles (see, Insurance Law §§ 5201, 5217). Such accidents, however, are susceptible to fraud and collusion because they are "easy to allege and difficult to disprove” (see, MVAIC v Eisenberg, supra, at 4). Thus, to deter the prosecution of fictitious claims, the Legislature imposed a "physical contact” requirement for all "hit-and-run” accidents (see, Insurance Law § 5217 [formerly § 617]; Matter of Smith [Great Am. Ins. Co.], supra, at 118; MVAIC v Eisenberg, supra, at 4).

The "physical contact” language was first interpreted by this Court in MVAIC v Eisenberg (supra), a case in which an unidentified vehicle struck another and propelled it into claimant’s vehicle. We held that the "contact” required by the statute could be indirect provided there was sufficient evidence to prove that the accident resulted from impact with an unidentified vehicle. The Court returned to the subject in Matter of Smith (supra). In that case, the claimant sought recovery for damages sustained when ice and snow, which he alleged had been disengaged from an unidentified vehicle, struck his automobile and caused an accident. We held that contact with cast-off ice and snow was not sufficient to constitute physical contact and stated that "the kind of contact required by the statute, even if not direct, must at least originate in collision.” (Matter of Smith [Great Am. Ins. Co.], supra, at 119.) We explained that:

"physical contact as contemplated by the statute may involve * * * the continued transmission of force indirectly and simultaneously through an intermediate agency, but the initial impact must * * * be that of a collision between the unidentified vehicle with the claimant, the vehicle occupied by him, an obstruction or other object causing the bodily injury.” (Matter of Smith [Great Am. Ins. Co.] supra, at 119.)

Insofar as claimant Smith failed to prove physical contact, as measured by that test, we stayed arbitration (see, Matter of Smith [Great Am. Ins. Co.] supra, at 122).

Had the decision ended there, the courts might well have dismissed the petition in this case and directed the parties to proceed to arbitration. But the Smith court went on to explain the importance of requiring "collision” as a prerequisite to a finding of "physical contact” because collision increased the probability that the offending vehicle was operated negligently and decreased the probability that the claim was fictitious. It noted, however, that, as a result of this requirement, there may be instances where negligently caused accidents by hit- and-run vehicles will be excluded from coverage. "Good examples of such negligently caused accidents, and yet not covered by the statute”, it stated "would be those caused by objects cast off or falling from a speeding or insecurely laden hit-and-run vehicle itself, such as parts of the vehicle” (Matter of Smith [Great Am. Ins. Co.], supra, at 120 [emphasis added]).

Understandably, a number of courts have relied upon this language to bar recovery for injuries caused when parts of a vehicle strike the insured or the insured’s, vehicle (see, e.g., Matter of Soto v Motor Vehicle Acc. Indemnification Corp., 140 AD2d 223 [pedestrian struck by hubcap dislodged from unidentified vehicle]; Matter of Diaz v Motor Vehicle Acc. Indemnification Corp., 82 AD2d 749 [same]; Matter of Utica Mut. Ins. Co. v Spenningsby, 133 AD2d 765 [rear relief spring from an unidentified truck struck driver’s windshield, causing him to lose control and collide with another vehicle]). Indeed, in a claim involving facts indistinguishable from those presented today, a sharply divided Appellate Division denied arbitration because the majority believed itself constrained by the dicta in Smith (supra) (see, Government Employees Ins. Co. v Goldschlager, 44 AD2d 715). The holding does not require that result, however, and we take this opportunity to clarify the governing rule: "physical contact” occurs within the meaning of the statute, when the accident originates in collision with an unidentified vehicle, or an integral part of an unidentified vehicle.

That formulation does no violence to the purpose behind the statutory requirement. The remedy for distinguishing between valid and fraudulent hit-and-run claims should rest on the proof that there was, indeed, an unidentified vehicle and that physical contact with the vehicle caused an accident, not on artificial distinctions between accidents involving a vehicle and those which may involve parts which undeniably come from it. The burden of proving a claim when only a part of a vehicle is involved, however, is necessarily substantial; to establish that the claim originated in collision, as Matter of Smith (supra) requires, the claimant must prove that the detached part, in an unbroken chain of events, caused the accident.

It is clear that the burden was met in the present case. The evidence, though circumstantial, was strong. Five independent witnesses recounted various details to establish that an unidentified vehicle traveling east on the Long Island Expressway lost a wheel and that the tire and its rim traveled across the median and struck Killakey’s westbound vehicle. Witnesses also heard the assembly of the missing wheel scraping on the pavement, observed the vehicle come to a stop in the eastbound lane to mount the spare, and then disappear before the police arrived without the driver identifying himself. From this evidence, the court below found as a fact that "[t]he tire that struck Mrs. Killakey came off an unidentified vehicle” and that "[t]he sole cause of injury and death was the wheel and tire” which had been propelled into her vehicle. In view of these findings, respondent has satisfied the "physical contact” requirement of the policy, i.e., that the claim "originated] in collision” with an unidentified vehicle, and arbitration is not foreclosed merely because the tire and the rim had separated from the vehicle moments before, bounded across the median and crashed into decedent’s car.

Our decision is consistent with the holding in Matter of Smith (29 NY2d 116, supra). Snow and ice from an unidentified vehicle are clearly not integral parts of the vehicle and contact between them and a claimant’s vehicle does not constitute a "collision” between the two. Manifestly, such occurrences fall outside the scope of today’s ruling (see generally, 8C Appleman, Insurance Law and Practice § 5095.45, at 428; Whitney, Uninsured Motorist Coverage for Hit-and-Run Vehicles: The Requirement of Physical Contact, 49 La L Rev 955; Annotation, Hit-and-Run Vehicle — Physical Contact, 25 ALR3d 1299).

Accordingly, the order of the Appellate Division should be reversed, with costs, and petitioner’s motion to stay arbitration denied.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

       The term hit-and-run vehicle is defined in the policy as "an automobile which caused bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided * * * there cannot be ascertained the identity of either the operator or owner of such 'hit-and-run’ automobile.” (Emphasis added.)


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Town of Dryden et al., Appellants, v Tompkins County Board of Representatives, Respondent.
    Argued September 4, 1991;
    decided October 10, 1991

      POINTS OF COUNSEL

      Jan S. Kublick for appellants.
    I. The requirements of SEQRA were not met. (Monroe County Conservation Council v Volpe, 472 F2d 693; Natural Resources Defense Council v Callaway, 524 F2d 79; Webster Assocs. v Town of Webster, 112 Misc 2d 396, 85 AD2d 882, 59 NY2d 220; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 60 NY2d 805; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Roosevelt Campobello Intl. Park Commn. v United States Envtl. Protection Agency, 684 F2d 1041; Horn v International Business Machs. Corp., 110 AD2d 87; Akpan v Koch, 75 NY2d 561.) II. Discovery was improperly denied. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400.)

      James F. Dwyer and Harris Lindenfeld for respondent.
    I. The County complied literally with SEQRA procedures. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Akpan v Koch, 75 NY2d 561, 76 NY2d 846; Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674.) II. The County met the test of reason in compliance with the substantive requirements of SEQRA. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862; Horn v International Business Machs. Corp., 110 AD2d 87; Aldrich v Pattison, 107 AD2d 258; Natural Resources Defense Council v Callaway, 524 F2d 79; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 60 NY2d 805; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222; Webster Assocs. v Town of Webster, 112 Misc 2d 396, 85 AD2d 882, 59 NY2d 220; Society of N. Y. Hosp. v Johnson, 5 NY2d 102; Kahlen v State of New York, 223 NY 383.) III. Petitioners’ demand for depositions was properly denied. (Matter of Residents for More Beautiful Port Washington v Town of N. Hempstead, 149 AD2d 266; Plaza Operating Partners v IRM [U.S.A.], Inc., 143 Misc 2d 22.)
   OPINION OF THE COURT

Per Curiam.

In February 1986, Tompkins County, through respondent Board of Representatives, began the process of searching for a new landfill site to replace the Landstrom Landfill ordered closed by the Department of Environmental Conservation. Under Phase I of this project, the County’s engineering consultants identified 23 potential sites, and ranked them for suitability based on various environmental, social and economic factors. After Phase I was completed, the County decided to withhold its eminent domain power and to test those sites for which the property owner’s permission could be obtained. In Phase II, the County inspected nine of the top 16 sites, including two of the three ranked highest on the list, and subsequently recommended three of those sites. Two were later eliminated from consideration due to wetland and access problems, and the remaining site, known as DR-7 (ranked sixteenth of the 23 potential sites) was ultimately selected as the preferred site.

Phase III, undertaken in December 1988, involved extensive hydrogeologic investigation of DR-7. After these tests were performed, draft and final environmental impact statements for development of the site were completed. Respondent thereafter filed an application to construct and operate a sanitary landfill at DR-7.

On this appeal, petitioners argue that the County violated SEQRA by failing to use its eminent domain power to gain access to and test all 23 potential sites, or at least those ranked above the sixteenth. On these facts, we conclude that the County acted reasonably in testing nine of the top 16 sites, and therefore did not violate the statute as claimed.

In undertaking an assessment of a project’s environmental impact, an agency must take a hard look at areas of environmental concern and make a reasoned elaboration of the bases for its determination (see, Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417). This determination will be set aside by the courts only if it " 'was affected by an error of law or was arbitrary and capricious or an abuse of discretion’ ” (Akpan v Koch, 75 NY2d 561, 570).

SEQRA requires that an Environmental Impact Statement include alternatives to the proposed action (see, ECL 8-0109 [2] [d]; see also, 6 NYCRR 617.14 [f] [5]; Weinberg, Practice Commentary, McKinney’s Cons Laws of NY, Book 17½, ECL C8-0109:5, at 78). Agencies are required to "choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects” (ECL 8-0109 [1]).

To be meaningful, any choice among alternatives must be based on an awareness of all reasonable options, but the degree of detail required in assessing those alternatives will vary with the circumstances and nature of each proposal (see, Webster Assocs. v Town of Webster, 59 NY2d 220, 228). A rule of reason applies: the agency must consider a reasonable range of alternatives to the specific project (see, Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d, at 422, supra). Where it appears, as here, that there has been such a reasonable consideration of alternatives, the judicial inquiry is at an end (Matter of Jackson, supra).

Petitioner urges, however, that a municipality has a greater duty than a private landowner in considering alternatives, citing dicta in Horn v International Business Machs. Corp. (110 AD2d 87, lv denied 67 NY2d 602). While the availability of the eminent domain power may be a factor in determining whether the agency acted reasonably in considering alternatives to the proposed action, this power need not be invoked to investigate all, or any particular number of, alternative sites. We agree with the lower courts that, under the circumstances of this case, the County acted reasonably in testing the nine sites for which owner consent was obtained and in reserving use of its eminent domain power until it determined whether any of the inspected sites were feasible.

Petitioner’s remaining contention is without merit.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur in Per Curiam opinion; Judge Hancock, Jr., taking no part.

Order affirmed, with costs.

       As noted in Supreme Court’s comprehensive writing (144 Misc 2d 873, 881), 6 NYCRR 360-2.12 ("Landfill siting”), promulgated after the County’s siting decision, is not in issue in this case.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Appellant, v Sylvester Webb, Respondent.
    Argued September 6, 1991;
    decided October 15, 1991

      POINTS OF COUNSEL

      Howard R. Relin, District Attorney (Elizabeth Clifford of counsel), for appellant.
    The trial court properly allowed the jury to go home at the end of the day pursuant to defendant’s waiver of CPL 310.10. (People v Coons, 75 NY2d 796; People v Iannone, 45 NY2d 589; People v Eatmon, 136 AD2d 909; People v Silvernail, 55 AD2d 72; People v Thomas, 91 AD2d 857; People v Prosser, 130 AD2d 972; People v Clayborn, 50 AD2d 952; Cancemi v People, 18 NY 128; People v Ahmed, 66 NY2d 307.)

      Edward J. Nowak, Public Defender (James Eckert of counsel), for respondent.
    I. The court below correctly applied this Court’s decision in People v Coons (75 NY2d 796) in reversing respondent’s conviction and ordering a new trial. (Cancemi v People, 18 NY 128; People v Patterson, 39 NY2d 288, 432 US 197; People ex rel. Battista v Christian, 249 NY 314; People v Ahmed, 66 NY2d 307; People v Bing, 76 NY2d 331.) II. The trial court erred by proceeding with the verdict without determining whether defendant’s absence was deliberate (being a separate basis to affirm the decision below). (People v Parker, 57 NY2d 136; Snyder v Massachusetts, 291 US 97; People v Ciaccio, 47 NY2d 431; People v Mehmedi, 69 NY2d 759; People v Brooks, 75 NY2d 898.)
   OPINION OF THE COURT

Hancock, Jr., J.

CPL 310.10 provides that once a jury has retired to deliberate, it "must be continuously kept together under the supervision of a court officer or court officers.” The question here is whether this sequestration requirement creates the sort of fundamental right which may never, under any circumstances, be affirmatively waived by the defendant. We hold that it does not and that where, as here, defendant and his attorney have expressly agreed to the procedure, the court, in its discretion and with appropriate instructions, may permit deliberating jurors to return overnight to their homes separately and without supervision.

I

On April 21, 1988, defendant was convicted by a jury of first and third degree rape, first and third degree sexual abuse, attempted sexual abuse in the third degree and incest. Early in the afternoon of the previous day, the court completed its charge and submitted the case to the jury. After the jury had retired to deliberate, the court raised the question of permitting the jurors to return to their homes for the night in the event that they had not agreed on a verdict by 4.50 p.m. The following discussion took place in open court between the court, defendant and defense counsel Hinman:

"the court: As I indicated to you in chambers, Mr. Hinman, there being no coverage of this particular matter, nothing of any consequence, it’s been our practice, with the permission of the defendant, agreement of the defendant and his lawyer, to allow the jury to return home should they not arrive at a verdict by ten minutes of five or thereabouts. That would require an agreement from you and waiver of Section 310.10 of the Criminal Procedure Law. Now, are you agreeable to doing that?
"mr. hinman: Yes, your Honor, I’ve discussed this matter with Mr. Webb. I’ve explained to him what the procedure would be in the event that he did not waive the provisions of the statute and I’ve reviewed with him what the procedure would be if he did waive the provisions of the statute and both he and I are agreeable to waiving it and allowing the jury to go home at ten of five if they have not reached a verdict by that time.
"the court: Did you hear the comments your lawyer has made, Mr. Webb?
"the defendant: Yes, your Honor.
"the court: Are you agreeable to that?
"the defendant: Yes, your Honor.
"the court: Very well.”

The jury returned to the courtroom at 4:45 p.m. and, in response to the court’s inquiry, the foreperson reported that the jury had not reached a verdict. The court then advised the jury as follows:

"the court: Ms. Barber [the foreperson], ladies and gentlemen of the jury, it is now twelve minutes of five. Since this particular case has not received that much notoriety, we had determine [sic] that I would send you home this evening with the admonition to you, of course, not to discuss the matter at home with anyone else, do not visit the alleged scene of the alleged crime, listen to, watch, read anything on the matter should it appear in the news media.
"I’d like you to come in tomorrow morning at 8:30. Now, when you come in, someone may stop you. Tell them, I’m going to Judge Celli’s court; I’m a juror and in deliberation. They will let you up. Deputy Kryk will be here to greet you and you will go immediately at 8:30 to the jury deliberating room and continue your deliberation. Everybody understand that?
"(no verbal response)”.

The jury returned and resumed deliberations the next morning pursuant to the court’s directions and ultimately found defendant guilty on the various counts.

On appeal to the Appellate Division, that court, citing People v Coons (75 NY2d 796), held that it was error to permit "the jurors to return home overnight separately and unsupervised during deliberation” (161 AD2d 1167). Accordingly, it reversed and granted a new trial. The People have been given leave to appeal to this Court, and we now reverse and reinstate the judgment.

II

In addressing the central question of whether a defendant may waive the sequestration requirement in CPL 310.10, we note preliminarily that we did not decide that question in People v Coons (75 NY2d 796, supra) as defendant contends. In Coons, the issue was whether the Court’s departure from the dictates of CPL 310.10 in permitting deliberating jurors to return to their homes for dinner could be reviewed on appeal even though the defendant had not objected. Unlike the case before us, the defendant had not consented to the procedure. Our holding was simply that a failure to follow CPL 310.10 presented an error affecting the organization of the court or mode of proceedings prescribed by law . which did not require preservation for appellate review. As in Coons, defendant’s failure to object constitutes no impediment to appellate review in this case. But the question of law we address here is one not presented in Coons: whether the sequestration requirement in CPL 310.10 may be effectively waived when, as in the case before us, the defendant has been informed of his rights by counsel and expressly consents on the record in the presence of counsel to the departure from the statute.

Defendant argues that because the sequestration requirement has been held to be sufficiently linked to the mode of proceedings so as not to require preservation (see, People v Coons, supra), it follows that the requirement is not waivable. The argument equates an error which does not require an objection for preservation with an error which necessarily entails a part of the process so essential to the form and conduct of the actual trial that the defendant may not waive it. In other words, what need not be preserved may not be waived. Defendant’s argument is contrary to our decisions.

In People v Ahmed (66 NY2d 307) we pointed out that "[w]aiver and preservation are separate concepts (People v Iannone, 45 NY2d 589, 600), although they are often 'inextricably intertwined’ (People v Michael, 48 NY2d, at p 5, n 1 * * *)” (id., at 311). In Ahmed, the claimed error was the delegation by the Trial Judge to his law secretary of the responsibility for supervising the jury and for rereading portions of the court’s charge in response to requests from the jury. We held that the error was one which did not require preservation since it " 'would affect the organization of the court or the mode of proceedings prescribed by law’ (People v Patterson, 39 NY2d, at p 295 * * *)” (id., at 310). Nevertheless, we proceeded to examine separately the discrete issue of whether the departure from the regular trial procedure was waived by the defendant’s consent to it. As to that issue, we held that the presence and active participation of a Judge constituted an integral component of the common-law right to trial by jury, a fundamental right which could not be waived by the defendant except in compliance with the strict statutory terms (see, CPL 320.10) mandated by the State Constitution (see, NY Const, art I, § 2).

Accordingly, as we did in Ahmed, we address the waivability of the claimed error as an issue that is separate and distinct from the question of preservation. Contrary to defendant’s contention, we conclude that the sequestration provision does not implicate fundamental rights that are an integral part of the trial itself. Unlike in People v Ahmed (supra) and in Cancemi v People (18 NY 128, 137) — both of which involved the defendant’s common-law and constitutionally based right to a jury trial — the requirement that a deliberating jury be sequestered is entirely statutory and reflects no established common-law right of the defendant. The protection which the provision affords a defendant does not relate to the actual trial proceeding or to how, by what proof or by whom a defendant may be tried and adjudged guilty. Rather, CPL 310.10 relates to what happens after completion of the trial proper and "simply prescribes the separate place, outside the courtroom, the supervisory personnel and interdiction against anyone speaking to or being permitted to speak to any of the jurors” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 310.10, at 647).

Thus, we conclude that the sequestration requirement does not entail a right of defendant that is so essential to the trial proceeding that it may never be waived. Obviously, the need to isolate deliberating jurors to guard against the possibility of outside influence will vary, depending upon the nature, seriousness and notoriety of the case. No reason has been suggested why, in a proper case — such as the one at bar where neither the attorneys nor the court believed the circumstances required sequestration — the court, in its discretion, should not be permitted to dispense with sequestration upon a proper waiver by the defendant. This view accords with the rule in Federal courts and other States and with expressions in comments questioning the need for a stringent rule which permits of no exception to mandatory sequestration (see, e.g., United States v Arciniega, 574 F2d 931, 933 [7th Cir]; United States v Acuff, 410 F2d 463, 466-467 [6th Cir]; 11th Ann Report of Advisory Comm on Criminal Law and Procedure, at 11-13, reprinted in 4th Ann Report of Chief Adm’r of Cts, 1982 NY Legis Doc No. 90, at 166-167).

We find no basis for questioning the adequacy of the waiver obtained here by the trial court. Nor does defendant suggest that the verdict was affected or that he was prejudiced, in any way, by the procedure which was followed. We find no merit in the other issue raised by defendant. Accordingly, the order of the Appellate Division should be reversed and the judgment of Monroe County Court reinstated.

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

Order reversed, etc.

       Rather than to protect the defendant by keeping the deliberating jurors from being improperly influenced by contacts with or communications from outside sources, it appears that the purpose of the ancient common-law practice of keeping the jurors locked up without food or drink, and sometimes without heat and light, until they reached a verdict was simply to force them to agree (see, Proffatt, Trial by Jury § 77, at 112-114 [1877]).


text:
    In the Matter of Istim, Inc., Respondent, v Chemical Bank, Respondent, and Willkie Farr & Gallagher, Appellant.
    Argued September 4, 1991;
    decided October 17, 1991

      POINTS OF COUNSEL

      Anthony F. Phillips and Pamela Bannon Kelly for appellant.
    I. The trial court erred in granting Istim’s application for a turnover order and the court below erred in affirming that decision because, as Willkie Farr has amply demonstrated, it has attorney’s liens upon the settlement fund which supersede Istim’s claim to the fund as Coronet’s purported judgment creditor. (Wyatt v Fulrath, 16 NY2d 169; Weissman v Banque De Bruxelles, 254 NY 488; Goetschius v Brightman, 245 NY 186; Bi-Rite Enters. v Button Master, 555 F Supp 1188; Dearing v McKinnon Dash & Hardware Co., 165 NY 78; Intercontinental Planning v Daystrom, Inc., 24 NY2d 372; Babcock v Jackson, 12 NY2d 473; Aetna Cas. & Sur. Co. v Atom Foreign

      Auto Parts, 116 Misc 2d 250; People v Keeffe, 50 NY2d 149; Entertainment & Amusements v Barnes, 49 Misc 2d 316.) II. The court below erred in failing to disqualify the Yerushalmi firm because its representation of Istim herein violated both its ethical and fiduciary obligations. (SMI Indus. Canada v Caelter Indus., 586 F Supp 808; Cardinale v Golinello, 43 NY2d 288; Greene v Greene, 47 NY2d 447; T. C. Theatre Corp. v Warner Bros. Pictures, 113 F Supp 265; Nichols v Village Voice, 99 Misc 2d 822; Armstrong v McAlpin, 699 F2d 79; Matter of Fleet v Pulsar Constr. Corp., 143 AD2d 187; Colonie Hill v Duffy, 86 AD2d 645; Jamaica Sav. Bank v Florizal Realty Corp., 95 Misc 2d 654.)

      Maralyn B. Fairberg for Istim, Inc., respondent.
    I. The courts below properly granted Istim’s application for a turnover order because Istim’s claim to the fund as a judgment creditor was superior to that of Willkie Farr, which had no valid attorney’s lien on the fund. (Intercontinental Planning v Daystrom, Inc., 24 NY2d 372; Babcock v Jackson, 12 NY2d 473; United States v J.H.W. & Gitlitz Deli & Bar, 499 F Supp 1010; People v Keeffe, 50 NY2d 149; Entertainment & Amusements v Barnes, 49 Misc 2d 316; Matter of City of New York v Avenue U Serv. Center, 5 Misc 2d 795.) II. The courts below properly denied Willkie Farr’s motion to disqualify the Yerushalmi firm from representing Istim. (T. C. Theatre Corp. v Warner Bros. Pictures, 113 F Supp 265, 125 F Supp 233; Berkowitz v Estate of Roubicek, 122 Misc 2d 322; ABKCO Indus. v Lennon, 85 Misc 2d 465, 52 AD2d 435.)
   OPINION OF THE COURT

Hancock, Jr., J.

Both parties to this appeal claim a right to a settlement fund from a terminated Illinois Federal court action in which neither party was a litigant. Petitioner Istim, Inc.’s claim is based on a default judgment, and respondent law firm Willkie Farr & Gallagher’s claim is based on a disputed statutory attorney’s charging lien. The issue before us is a choice-of-law question: whether the Illinois or New York attorney’s lien statute applies. If Illinois law applies, Willkie’s asserted lien did not attach because it failed to provide the notice apparently required by the Illinois statute. If the New York attorney’s lien statute applies, Willkie has a valid claim to the settlement fund. We hold that under the interests analysis approach to choice-of-law questions, the courts below erroneously concluded that Illinois law applies in this proceeding. Accordingly, we modify and remit for a determination of which of the parties’ valid claims has priority to the settlement fund.

I

This is a special proceeding brought by Istim seeking turnover of the settlement fund as partial payment of an unpaid loan. Istim is a New York corporation acting in the United States as a purchasing and sales agent for Israeli manufacturers, and Willkie Farr & Gallagher is a New York law firm. In January 1983, Istim loaned $1,000,000 to Coronet Enterprises, a Utah mining company owned by two Israeli entrepreneurs, Yori Salant and Haggai Blich. Coronet failed to make the first loan repayment due in July 1983. Thereafter, Salant and/or Blich allegedly informed Istim that Coronet would repay the loan with the proceeds from a lawsuit. Coronet, represented by Willkie, commenced the lawsuit in July 1983 in Federal District Court in Illinois (Coronet Enters. v ETX Petroleum Corp. [the Illinois lawsuit]).

Meanwhile, the Israeli government was conducting an investigation of Salant and Blich which resulted in their indictment in January 1986 for stock fraud and manipulation; they both absconded. In June 1986, during the pendency of the Illinois lawsuit, Istim commenced an action against Coronet in Supreme Court, New York County, seeking damages arising from Coronet’s default on its loan agreement (Istim, Inc. v Coronet Enters. [the debt action]). Istim moved to attach the settlement fund it expected the Illinois lawsuit to yield. In August 1986, Coronet and ETX settled the Illinois lawsuit and created a settlement fund with Willkie acting as escrow agent. In October 1986, in the debt action on the loan, which Coronet never repaid, the New York court entered a default judgment for Istim against Coronet. The Illinois lawsuit settlement fund, in which both parties claim an interest, is presently held in a Treasury Bill by respondent Chemical Bank in New York.

In September 1988, Istim commenced this special proceeding pursuant to CPLR 5225 (b) and 5227 seeking an order directing Chemical Bank to turn over the settlement fund to Istim. Supreme Court, New York County, denied Willkie’s motion to disqualify Istim’s law firm. Thereafter, Willkie answered the petition and cross-moved for an order dismissing the petition, denying Istim’s application and awarding Willkie summary judgment enforcing its statutory lien on the settlement fund pursuant to Judiciary Law § 475 or its retaining lien pursuant to New York common law. Supreme Court denied Willkie’s cross motion, granted Istim’s application and ordered Chemical Bank to turn over the fund to Istim. Supreme Court stated that the choice of applying either Judiciary Law § 475 or Illinois’ Attorneys Lien Act was dispositive. The court applied the interests analysis approach for choice-of-law questions and determined that Illinois’ interests and contacts were more significant than New York’s. It, therefore, applied Illinois law and held that Willkie had waived its lien by failing to give notice as required by the Illinois statute. The Appellate Division, First Department, affirmed. This Court granted Willkie leave to appeal.

II

In deciding whether the New York or Illinois attorney’s lien statute applies, we first must determine what choice-of-law approach will be utilized in this type of proceeding.

Prior to Auten v Auten (308 NY 155) and Babcock v Jackson (12 NY2d 473), New York courts generally applied a traditional, "territorially oriented” approach to choice-of-law issues which applied the law of the geographical place where one key event occurred, such as the place of the wrong in tort cases or where an agreement was entered into or performed in contract cases (see, Schultz v Boy Scouts, 65 NY2d 189, 196). In Auten, the Court abandoned such rules and adopted the more flexible "center of gravity” or "grouping of contacts” theory. An even more flexible approach often called "interests analysis” was utilized in Babcock, a tort case in which the Court stated that choice-of-law questions are governed by "the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation.” (Babcock v Jackson, supra, at 481.) These less rigid approaches were also applied in property cases (see, Matter of Clark, 21 NY2d 478; Matter of Crichton, 20 NY2d 124), although the traditional situs rule — that the location of the property was controlling — continued to hold some sway (see, James v Powell, 19 NY2d 249, 256 [conveyance of real property governed by the law of the place where the property was located, but Babcock’s interests analysis also employed in determining a punitive damages issue]).

Under the "interests analysis” approach, the " 'law of the jurisdiction having the greatest interest in the litigation will be applied and * * * the [only] facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict’ ” (Schultz v Boy Scouts, 65 NY2d 189, 197, supra [quoting Miller v Miller, 22 NY2d 12, 15-16]). Because interests analysis is an analytical approach of general application and has been employed by this Court in recent years in a number of areas of law, we see no reason not to apply this approach to the present turnover proceeding concerning competing claims to a settlement fund.

In determining whether Illinois or New York law governs Willkie’s attorney’s lien, it is important to identify the litigation in which this issue is being resolved. This is a turnover proceeding brought by Istim, a New York corporation, against Willkie, a New York law firm, in a New York court under New York law seeking a settlement fund located in New York based on a default judgment in a debt action which Istim also chose to bring in New York. The proceeding does not present the typical attorney’s lien dispute between an attorney and a client or a party to the litigation upon which the lien is based where focusing upon the underlying litigation would be appropriate. The parties to the Illinois lawsuit, Coronet and ETX, have no interest in the present proceeding. The only connection between the Illinois lawsuit and this proceeding is essentially historical — that it was in the now-defunct Illinois lawsuit where the settlement fund originated and Willkie performed the work upon which it bases its lien. Thus, Supreme Court’s focus on the Illinois lawsuit to the virtual exclusion of the present proceeding, where the choice-of-law question must be resolved, was not appropriate.

Applying interests analysis, we first look to the purposes of the statutes in conflict and identify the policies which the States seek to promote through application of their laws. Then, based upon the facts of the case which relate to the statutes’ purpose, we determine which State has the greater interest in having its law applied (see, Schultz v Boy Scouts, supra, at 197). The purpose of the New York attorney’s lien statute is to ensure that attorneys have the means to enforce the right to their fees (see, Robinson v Rogers, 237 NY 467, 470-472). The basic purpose of the Illinois statute is the same (see, Baker v Baker, 258 Ill 418, 101 NE 587), but its provision for notice to the judgment debtor in the action in which the lien was obtained is intended to benefit the judgment debtor (see, Fischer v Slayton & Co., 25 Ill App 2d 250, 166 NE2d 617; Mid-City Trust & Sav. Bank v City of Chicago, 292 Ill App 471, 11 NE2d 617).

Looking to the circumstances here, we note that the judgment debtor in the Illinois lawsuit, ETX — not a party to the instant dispute — has nothing to do with Willkie’s enforcement of its attorney’s lien. Therefore, whatever interest Illinois might have had in requiring Willkie to give notice to ETX is not now applicable. Supreme Court’s analysis — that the "purpose of each statute can only be carried out if the court enforcing the lien can reach the judgment debtor” — misses the point. Willkie is not seeking to enforce its lien against ETX. ETX and Coronet created the settlement fund and the only issue the present proceeding must resolve is whether Istim or Willkie has priority to it. Because Illinois’ policy of requiring notice to judgment debtors is irrelevant, the only relevant policy interest is that of New York in having its attorneys fairly compensated.

New York has more than sufficient interest to justify application of its statutory policy. As previously noted, both parties, the settlement fund and the significant proceedings are all in New York. Even more importantly, New York’s undisputed interest in protecting its attorneys’ ability to be paid for legal services rendered is paramount and, in the circumstances of this case, there is no contrary interest in another State to suggest that New York’s policies should not control.

We also reject Istim’s contention that section 251 of the Restatement (Second) of Conflict of Laws requires the application of Illinois law. New York has not adopted that rule. Moreover, application of the New York attorney’s lien statute in this case comports generally with the interests analysis approach of section 6 of the Restatement (Second).

Because we conclude that Willkie has a statutory attorney’s lien, we need not reach Willkie’s alternative claim to a common-law retaining lien. The parties’ arguments regarding whether Istim’s law firm should be disqualified are not reviewable since that portion of the Appellate Division order is nonfinal and does not necessarily affect the final portion of the order.

The question remains whether Istim’s default judgment or Willkie’s statutory lien has priority to the settlement fund. Inasmuch as this issue has not yet been addressed, the proceeding should be remitted to Supreme Court for its ultimate resolution.

Accordingly, the order, insofar as it affirms the order of Supreme Court entered December 8, 1989, should be modified, with costs to respondent Willkie Farr, by denying petitioner’s motion for a turnover order and remitting the matter to Supreme Court for further proceedings in accordance with this opinion, and, as so modified, affirmed. The appeal, insofar as it pertains to respondent’s motion to disqualify petitioner’s attorneys, should be dismissed.

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

Order, insofar as it affirms the order of Supreme Court entered December 8, 1989, modified, with costs to respondent Willkie Farr & Gallagher, by denying petitioner’s motion for a turnover order and remitting to Supreme Court, New York County, for further proceedings in accordance with the opinion herein, and, as so modified, affirmed; appeal, insofar as taken from that portion of the Appellate Division order that affirmed the order of Supreme Court entered on April 20, 1989, which denied respondent’s motion to disqualify petitioner’s attorneys, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution.

      . Judiciary Law § 475 provides:
      "Attorney’s lien in action, special or other proceeding
      "From the commencement of an action * * * in any court * * * the attorney who appears for a party has a lien upon his client’s cause of action [or] claim * * * which attaches to a verdict * * * in his client’s favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien.”

      . The Illinois Attorneys Lien Act (Ill Rev Stat, ch 13, ¶ 14) provides:
      "Attorney’s lien for fees — Enforcement
      "Attorneys at law shall have a lien upon all claims, demands and causes of action * * * upon which suit or action has been instituted * * * for a reasonable fee, for the services of such suits, claims, demands or causes of action, plus costs and expenses. To enforce such lien, such attorneys shall serve notice in writing, which service may be made by registered or certified mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action. Such lien shall attach to any verdict, judgment or order entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the notice.”

      . For the reasons discussed above, the fact that the settlement fund originated in Illinois and that Willkie’s lien may theoretically have attached in Illinois is of no moment when analyzing New York’s and Illinois’ interests in the context of the present proceeding.


text:
    In the Matter of Steven Hill, Respondent, v Cesar Perales, as Commissioner of the New York State Department of Social Services, Appellant, et al., Respondent.
    Decided October 22, 1991

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Robert J. Schack and Eugene E. Zegarowicz of counsel), for appellant.

      Geoffrey Potter and Douglas Lasdon for Steven Hill, respondent.
    I. By the plain language of both the applicable statute and regulation, Mr. Hill is entitled to the food allowance. (Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Triborough Bridge & Tunnel Auth. v Crystal & Son, 2 AD2d 37, 2 NY2d 961; Matter of Rankin v Lavine, 41 NY2d 911.) II. Because the Legislature intended the food allowance as a supplement, Perales must provide it. (Zaldin v Concord Hotel, 48 NY2d 107; Jiggetts v Grinker, 75 NY2d 411.) III. Perales’ reading is wrong; shelter residents are entitled to the food allowance. (Matter of Town of Mamaroneck PBA v New York State Pub. Employment Relations Bd., 66 NY2d 722; Matter of Action Elec. Contrs. Co. v Goldin, 64 NY2d 213; Jiggetts v Grinker, 75 NY2d 411; Thrower v Perales, 138 Misc 2d 172; Matter of Delgado v Sipprell, 54 AD2d 1131; Matter of Stevens v Shang, 68 AD2d 998; Matter of Hill v Perales, 164 AD2d 624.) IV. Perales’ policy arguments are unpersuasive and irrelevant.
   OPINION OF THE COURT

Simons, J.

The Social Services Law directs social service officials to provide assistance to needy persons in accordance with a defined "standard of need” (Social Services Law § 131-a [1]). Included in this standard are "amounts for additional cost of meals for persons who are unable to prepare meals at home” (Social Services Law § 131-a [2] [b]). Petitioner resides in a public shelter and contends that he is entitled to a food allowance because he is unable to prepare meals at home. After respondent Commissioner denied his application, petitioner instituted this proceeding. The courts below sustained his claim but we conclude that the Commissioner’s decision should be upheld and the petition dismissed.

Petitioner is a resident at the Ward’s Island Shelter and receives a monthly $45 Home Relief grant in exchange for working 20 hours per week in the Public Works Program. The shelter is required by regulation to provide three meals each day which are "balanced, nutritious and adequate in amount and content to meet the dietary needs of residents” (18 NYCRR 491.9 [a]). Nonetheless, petitioner requested a food allowance pursuant to Social Services Law § 131-a (2) (b). The Commissioner denied the request after an administrative hearing, determining that the provision of meals at the shelter precluded petitioner from qualifying for a food allowance. The Commissioner did, however, award him retroactive relief for certain lunches and dinners, inasmuch as petitioner necessarily missed those meals while he was working in the Public Works Program.

Petitioner commenced this CPLR article 78 proceeding alleging that respondent’s decision was arbitrary and capricious. Supreme Court granted the petition and the Appellate Division affirmed. Relying upon our decision in Jiggetts v Grinker (75 NY2d 411), it held that the food allowance is mandated and the Commissioner is without discretion to deny it to persons, such as petitioner, who cannot prepare meals at home. In Jiggetts, we held that the Commissioner had a nondiscretionary duty to provide "adequate” shelter allowances and that the petitioners were entitled to a trial to establish the allowances provided were not adequate. Our decision in Jiggetts is inapposite because it is not disputed here that the Commissioner lacks discretion to deny allowances to qualified persons: the question is whether petitioner is such a qualified person. Needy persons who cannot prepare meals at home do not qualify automatically for the statutory allowance.

Social Services Law § 131-a (2) (b) includes in the definition of the standard of need "amounts for additional cost of meals for persons who are unable to prepare meals at home” (emphasis added). Applicants for food allowances must show that their inability to prepare meals at home results in a need to incur the "additional cost” of eating out. Assuming petitioner qualifies as a person unable to prepare meals at home, he cannot show that he necessarily incurs "additional cost” for meals because he was a resident of the shelter and as such the shelter was required to provide meals to him at no cost (see, 18 NYCRR 491.9; cf., Matter of Stevens v Shang, 68 AD2d 998; Matter of Delgado v Sipprell, 54 AD2d 1131 [upholding denial of food allowance where applicants failed to show that they needed to be in residences without cooking facilities]). The Appellate Division’s conclusion that the word "shall” in the statute mandates payment of the allowance to "supplement” Home Relief payments, notwithstanding the availability of meals to petitioner at the shelter, fails to give meaning to the language of the statute directing payment only when the applicant incurs "additional cost” for meals.

Moreover, considering that petitioner lived at the shelter and his meals were prepared at the shelter, the Commissioner could reasonably conclude that the shelter was petitioner’s "home” and that he did not fall within the category of persons "unable to prepare meals at home.” Petitioner’s position could reasonably be viewed as similar to one residing at home whose meals were prepared by another person living there.

Inasmuch as the Commissioner’s determination that petitioner had "no additional need for meals” because he was able to eat at the shelter rested on a rational interpretation of the statute, it should be accepted by the court (Matter of Lumpkin v Department of Social Servs., 45 NY2d 351, 356).

Accordingly, the order of the Appellate Division should be reversed and the petition dismissed, without costs.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.

      . Social Services Law § 131-a (2) (b) provides in pertinent part: "In addition to the above, the standard of need shall include amounts for shelter and fuel for heating, amounts for home energy payments (including amounts for supplemental home energy grants), amounts for additional cost of meals for persons who are unable to prepare meals at home” (emphasis added).

      . Meals obtained from charitable sources, such as soup kitchens, would not affect an applicant’s food allowance because provision of these meals are not mandated, nor are the charitable sources associated with the Department of Social Services (see, 18 NYCRR 491.9).


text:
    The People of the State of New York, Respondent, v Jose B. Romero, Appellant.
    Argued September 12, 1991;
    decided October 22, 1991

      POINTS OF COUNSEL

      J. Scott Porter for appellant.
    I. Appellant’s constitutional guarantees to a trial by jury were violated when the Trial Judge coerced the jury into reaching a verdict. (People v Ahmed, 66 NY2d 307; Cancemi v People, 18 NY 128; People v Iannone, 45 NY2d 589; People ex rel. Battista v Christian, 249 NY 314; People v Udzinski, 146 AD2d 245; People v Coons, 75 NY2d 796; People v Santana, 163 AD2d 495; People v Patterson, 39 NY2d 288, 432 US 197; People v Ali, 47 NY2d 920;
      People v Pagan, 45 NY2d 725.) II. Counsel’s absence from the Trial Judge’s discussion with the jury concerning the deliberation schedule violated appellant’s constitutional guarantees to the right of presence and/or the right to counsel. (People v Ramos, 26 NY2d 272; People v Duenas, 120 AD2d 978; People v De Armas, 106 AD2d 659; People v Darby, 75 NY2d 449; People v Mullen, 44 NY2d 1; People v Ciaccio, 47 NY2d 431; People v Trendell, 61 NY2d 728; People v Parker, 57 NY2d 136; People v Buford, 69 NY2d 290; People v Samuels, 49 NY2d 218.) III. The third-party testimony to the informant’s translations of appellant’s statements constituted inadmissible hearsay. (People v Randazzio, 194 NY 147; People v Chin Sing, 242 NY 419; United States v Alvarez, 755 F2d 830, cert denied sub nom. Hernandez v United States, 474 US 905; United States v Da Silva, 725 F2d 828; People v Perez, 128 Misc 2d 31; People v Sanchez, 125 Misc 2d 394; Kalos v United States, 9 F2d 268; People v Elwell, 50 NY2d 231.) IV. The agreement between the informant and the government constituted an illegal contingent fee arrangement violating appellant’s State due process rights. (People v McGee, 49 NY2d 48; United States v Russell, 411 US 423; People v Isaacson, 44 NY2d 511; United States v Cuomo, 479 F2d 688; People v Zannone, 130 AD2d 699; People v Surpris, 125 AD2d 351; United States v Prescio, 832 F2d 705; United States v Cresta, 825 F2d 538; United States v Cervantes-Pacheco, 826 F2d 310.) V. The prosecutor’s use of inflammatory and prejudicial evidence violated appellant’s fair trial rights. (People v Vails, 43 NY2d 364; People v Whitfield, 144 AD2d 915; People v Wesley, 154 AD2d 880.)

      Robert E. Wildridge, District Attorney (James P. Maxwell of counsel), for respondent.
    I. Appellant’s conviction was not the result of a coerced jury verdict. (People v Legacy, 4 AD2d 453; People v Ford, 62 NY2d 275; People v Aleschus, 55 NY2d 775; People v Lipton, 54 NY2d 340; People v Patterson, 39 NY2d 288, 432 US 197; People v Faber, 199 NY 256; People v Pagan, 45 NY2d 725; Allen v United States, 164 US 492; People v Ali, 47 NY2d 920.) II. Appellant’s right to counsel was not violated. (People v Narayan, 54 NY2d 106; People v Samuels, 49 NY2d 218; People v Felder, 47 NY2d 287; People v Arthur, 22 NY2d 325; Snyder v Massachusetts, 291 US 97; People v Ciaccio, 47 NY2d 431; People v Mullen, 44 NY2d 1; People v Van, 161 AD2d 326, 76 NY2d 867; People v Darby, 75 NY2d 449; People v Margan, 157 AD2d 64.) III. The testimony of the undercover officer was proper. (People v Randazzio, 194 NY 147; People v Perez, 128 Misc 2d 31; United States v Alvarez, 755 F2d 830, cert denied sub nom. Hernandez v United States, 474 US 905; United States v Da Silva, 725 F2d 828; People v Chin Sing, 242 NY 419; People v Crimmins, 36 NY2d 230.) IV. The government’s pay arrangement with the informant was proper. (Williamson v United States, 311 F2d 441, 340 F2d 612, 381 US 950; United States v Cervantes-Pacheco, 826 F2d 310, cert denied sub nom. Nelson v United States, 484 US 1026; People v Thomasula, 158 AD2d 126, 76 NY2d 897; People v Kelly, 56 NY2d 873; United States v Cuomo, 479 F2d 688, cert denied sub nom. Rizzo v United States, 414 US 1002; People v Godley, 130 AD2d 791, 70 NY2d 750; United States v Grimes, 438 F2d 391, 402 US 989; United States v Prescio, 832 F2d 705, 486 US 1022; United States v Cresta, 825 F2d 538, cert denied sub nom. Impemba v United States, 486 US 1042.) V. Appellant was not denied a fair trial by the prosecutor.
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant, who speaks and understands only Spanish, was convicted of two sales of drugs to an undercover police officer, who speaks and understands only English. The "buys” on which the convictions were based were made with the assistance of a paid bilingual informant who participated in setting up the transactions and acted as the interpreter for both defendant and the undercover officer. During the jury trial, the undercover officer, over objection to his testimony as inadmissible hearsay, was permitted to testify to what the informant told him in English that the informant and defendant had said to each other in Spanish. Defendant’s convictions for criminal sales of a controlled substance in the first and third degree and related drug charges were unanimously affirmed by the Appellate Division (People v Romero, 167 AD2d 923). For reasons to be explained, we conclude that the admission of the undercover officer’s testimony was error requiring a reversal and a new trial.

I

Defendant was arrested on December 29, 1987 at the North-way Motel in the Town of Salina on drug sale and possession charges arising out of transactions that occurred that day at the motel and earlier on December 17, 1987 at a supermarket in Syracuse. The two transactions were controlled "buys” of cocaine which had been planned by Sergeant Tierney and other members of the Central New York Drug Enforcement Task Force for the purpose of arresting and charging defendant as a drug seller.

The December 29th arrest was the culmination of a series of meetings involving the three participants in the transactions: Reginald Tillery, Hector Davila and defendant. Tillery, a Special Agent of the United States Drug Enforcement Administration, was the undercover officer who "purchased” the drugs; Davila was the paid police informant who tipped off the police about defendant as a drug seller, set up the meetings leading to the "buys” and helped effectuate the transactions by acting as interpreter. Tillery did not know Spanish, and defendant, a native of the Dominican Republic who had come to Syracuse from Puerto Rico, did not know English. Davila, the informant, was fluent in both languages and was the sole means of communication between defendant and Tillery.

Davila’s first association with the Syracuse Police Department as an informant had occurred in the summer of 1986 when he supplied some accurate information on area drug dealers to Syracuse Police Sergeant Tierney. On December 9, 1987, Tierney, who, in the interim, had been assigned to the Central New York Drug Enforcement Task Force, talked with Davila about working for the Task Force as a paid informant. Davila agreed to do so and provided names of people allegedly involved in drug trafficking including that of defendant. It was understood that Davila was to work as an "unrestricted informant” — one who would provide information "strictly for money” and not for the purpose of obtaining a favorable disposition of pending criminal charges. Under the arrangement that was ultimately made after Davila signed a "Cooperating Individual Agreement”, Davila was to be paid for each drug deal. The amount of the payment would depend in part on the size and value of the particular drug seizure. But it would also depend, as Tillery specifically explained to Davila, on the extent to which his activities resulted "in a prosecutable case”. In addition, the Task Force agreed to help with the disposition of some traffic violations against Davila whose driving license was then suspended.

On December 12th, the Task Force, with Davila’s cooperation, commenced its investigation of defendant and the planning for his arrest. Davila, who had become acquainted with defendant shortly after defendant’s arrival from Puerto Rico, agreed to try to arrange for Tillery to purchase a large quantity of drugs from defendant. The subsequent meetings between Tillery, Davila and defendant led to the two alleged sales: the first, on December 17th, in Syracuse of one ounce of cocaine; and the second, on December 29th, in Salina of one pound of cocaine — the staged "large buy” following which the preplanned arrest of defendant took place.

Davila was present at both the December 17th and 29th transactions and acted as the interpreter between Tillery and defendant in the negotiations concerning the amount, the price and other elements of the sales agreements. He also participated as go-between and interpreter in the preliminary discussions between Tillery and defendant leading up to the two transactions. Davila received $730 for his services and the police, Davila said, took care of the problems he had had with his driver’s license "in exchange for the information”.

In the People’s case, Davila testified in English as to what was said in the three-way conversations among Tillery, defendant and himself at the time of the two drug sales and in various preliminary meetings. Following Davila’s testimony, Tillery described what occurred at these same meetings. Tillery was permitted to testify to what Davila, acting as interpreter, represented to him was the English version of what Davila had said to defendant and what defendant had said in reply. Defense counsel objected to the entire line of testimony as hearsay. In overruling the objection, the court noted that Tillery’s testimony presented a "unique situation”. It cautioned the jury that it "should understand that [Tillery’s] knowledge of what the defendant allegedly said is coming through Hector Davila” and that the jury would "have to accept the credibility of Hector Davila if [it] accepted] the truth of the words allegedly spoken by [defendant]”.

The essence of the defense was an attack on the character and credibility of Davila who had engaged in drug trafficking himself and, at the time of the trial, was under pending drug charges. Davila, it was argued, had engineered the entire case for his own financial gain. Defendant testified that Davila had duped him into acting as the unwitting conduit in the transactions of December 17th and 29th between Davila and a man later identified as Tillery. According to defendant, Davila supplied the packages which were given to Tillery and Davila kept all but $50 of the $900 which Tillery gave in return on the 17th, the only money which actually changed hands. During summation, defense counsel did not question the accuracy of Tillery’s account of what Davila had said to him but only whether what Davila had said was the truth.

In its memorandum affirming, the Appellate Division, citing, inter alia, People v Randazzio (194 NY 147), reasoned that "[s]ince Davila acted by common consent of the parties as their translator and agent and testified to defendant’s statements, thereby verifying his translation, the trial court correctly admitted Special Agent Tillery’s testimony of Davila’s translation of defendant’s statements to him” (167 AD2d 923-924, supra). The Appellate Division rejected defendant’s contention that his due process rights had been violated because the agreement with Davila constituted an unlawful contingent fee arrangement.

Defendant has appealed by permission and we now reverse.

II

As the trial court noted, Tillery’s testimony as to what Davila said to him concerning his discussions with defendant fits the accepted definition of hearsay: "[A] statement made out of court, that is, not made in the course of the trial * * * if it is offered for the truth of the fact asserted in the statement” (Richardson, Evidence § 200, at 176 [Prince 10th ed]). A material part of the People’s case consisted of the proof that defendant orally agreed in his conversations with Davila to make the two drug sales to Tillery. Tillery’s testimony as to what Davila said regarding the content of these conversations was offered for its truth and to prove that defendant had indeed agreed to make the sales. The People contend and the Appellate Division held, however, that the testimony was properly admitted for essentially two reasons: (1) Davila was defendant’s agent as interpreter and acted as no more than a "language conduit” for him; and (2) during the trial, Davila testified to the conversations and thereby "verified” the translation he had given to Tillery. Neither provides a basis for admitting the testimony here.

A

The rationale of the agency exception to the hearsay rule is simply that if a party has made an interpreter an agent for the purpose of translating what he or she says, the interpreter’s translations may be received as party admissions (see, 4 Wigmore, Evidence § 1078 [Chadbourn rev 1972]; 6 Wigmore, op. cit., § 1810). The agency theory for the receipt of interpreted testimony has been applied recently in Federal courts (see, United States v Da Silva, 725 F2d 828, 831-832 [2d Cir 1983] [DEA Special Agent permitted to testify to interpreter’s translation of defendant’s statements made through interpreter under questioning]; accord, United States v Alvarez, 755 F2d 830, 859-860 [11th Cir 1985]). In Da Silva, the court, in approving the receipt of the testimony, noted that there may be circumstances "tending to negate an inference of agency [including] * * * a substantial possibility that the interpreter sought to shift suspicion to the accused” (725 F2d, at 832). But where "there is no motive to mislead and no reason to believe the translation is inaccurate, the agency relationship may properly be found to exist. In those circumstances the translator is no more than a 'language conduit,’ United States v. Ushakow, 474 F.2d 1244, 1245 (9th Cir. 1973), and a testimonial identity between declarant and translator brings the declarant’s admissions within Rule 801(d)(2)(C) or (D)” (id., at 832 [emphasis added]).

The agency rationale has been applied in some earlier decisions in State courts (see, e.g., Commonwealth v Vose, 157 Mass 393, 32 NE 355; Miller v Lathrop, 50 Minn 91, 52 NW 274; Nadau v White Riv. Lbr. Co., 76 Wis 120, 43 NW 1135) and acknowledged as a tenable theory for admitting interpreted testimony by our Court (see, People v Chin Sing, 242 NY 419, 422-423; but see, People v Randazzio, 194 NY 147, 156-158, supra [unnecessary to rely on agency rationale for admission of stenographer’s transcript of confession made through interpreter since reliability was sufficiently established where interpreter testified to accuracy of translation]; Fisch, New York Evidence § 874 [2d ed]; Richardson, Evidence § 557 [Prince 10th ed]; see also, People v Perez, 128 Misc 2d 31, 32-34).

Notwithstanding the precedential support for its use, the agency theory could not be a ground for admitting Tillery’s testimony. Here, in contrast to the circumstances in Da Silva, it cannot be said that the interpreter had "no motive to mislead” (725 F2d, at 832) or that there was no reason to question the accuracy of his translation (id.). Whatever his actual role and true motives might have been in the transactions, it can hardly be thought that Davila — a paid informant whose remuneration depended on the "prosecutability” of the case against defendant — could have been acting in the capacity of go-between and interpreter as an agent for defendant’s benefit.

B

Nor is there merit to the People’s alternative argument for receiving Tillery’s testimony under the rationale employed in People v Randazzio (supra) — i.e., that Davila presumably "verified” his translation by testifying to the same transactions as Tillery and thereby made Tillery’s testimony reliable. Davila, unlike the interpreters in Randazzio and Da Silva, had a motive to lie. As the trial court noted in its cautionary instructions, the probative worth of Tillery’s testimony depended entirely on the truth of Davila’s translations. If it be assumed that Davila’s original translations to Tillery were false, his reiteration of the same falsehoods on the stand could certainly not have enhanced the underlying probative worth of Tillery’s testimony. All that Davila’s testimony could have "verified” is that Tillery remembered and repeated Davila’s supposed falsehoods correctly.

Ill

We reject the People’s contention that there was not a significant probability that the receipt of Tillery’s testimony affected the result. The case hinged on the jury’s accepting as true the translations of one witness, Davila, an interpreter whose credibility was very much in issue. We cannot say that permitting Tillery — a witness of good reputation whose credibility could not be questioned — to bolster Davila’s testimony by repeating the same translations and, in effect, giving them the gloss of approval was harmless error (see, People v Crimmins, 36 NY2d 230, 236). Defendant’s due process argument concerning Davila’s fee arrangements is not preserved for our review. In view of the foregoing decision, we do not address defendant’s other arguments.

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

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

Order reversed, etc.


text:
    In the Matter of Stanley G. Prue, Respondent-Appellant, v Leigh Hunt, as Chief of Police of the City of Syracuse, Appellant-Respondent, et al., Respondent.
    Argued September 11, 1991;
    decided October 24, 1991

      POINTS OF COUNSEL

      C. Frank Harrigan, Corporation Counsel (Marguerite A. Conan of counsel), for appellant-respondent.
    Section 73 of the Civil Service Law, as interpreted in Matter of Economico v Village of Pelham (50 NY2d 120 [1980]), fully satisfies the due process protections guaranteed by the New York State and the United States Constitutions. (Matter of Dolan v Whalen, 49 NY2d 991; Rao v Gunn, 73 NY2d 759; Cleveland Bd. of Educ. v Loudermill, 470 US 532; Anti-Facist Comm. v Mc-Grath, 341 US 123; Zinermon v Burch, 494 US 113; Ingraham v Wright, 430 US 651; Sniadach v Family Fin. Corp., 395 US 337; Dixon v Love, 431 US 105; Federal Deposit Ins. Corp. v Mallen, 486 US 230.)

      Kevin F. McDonough for respondent-appellant.
    I. Respondent-appellant was denied due process of law under both the United States Constitution and the New York State Constitution. (Matter of Economico v Village of Pelham, 50 NY2d 120; Arnett v Kennedy, 416 US 134; Cleveland Bd. of Educ. v Loudermill, 470 US 532; Bishop v Wood, 426 US 341; Matter of Richie v Coughlin, 148 AD2d 178, 75 NY2d 707; Board of Regents v Roth, 408 US 564; Zinermon v Burch, 494 US 113; Brock v Roadway Express, 481 US 252; Williamson Planning Commn. v Hamilton Bank, 473 US 172.) II. Section 73 of the Civil Service Law is unconstitutional. (Laurido v Simon, 489 F Supp 1169; Hilf v New York City Hous. Auth., 550 F Supp 1000; Matter of Robinson v Hall, 119 Misc 2d 90; People v Scott, 26 NY2d 286; Giaccio v Pennsylvania, 382 US 399; Foss

      v City of Rochester, 65 NY2d 247; Connally v General Constr. Co., 269 US 385; Rao v Gunn, 73 NY2d 759.)

      Robert Abrams, Attorney-General (Peter G. Crary, O. Peter Sherwood and Peter H. Schiff of counsel), in his statutory capacity under Executive Law § 71.
    Civil Service Law § 73 is not unconstitutional on its face. This Court should read into the statute the procedural requirements necessary to satisfy due process. (Matter of Buttonow, 23 NY2d 385; People v Bailey, 21 NY2d 588; Matter of Coates, 9 NY2d 242; Matter of Hecht v Monaghan, 307 NY 461; Matter of Economico v Village of Pelham, 50 NY2d 120; Cleveland Bd. of Educ. v Loudermill, 470 US 532; LaRossa, Axenfeld & Mitchell v Abrams, 62 NY2d 583; Mathews v Eldridge, 424 US 319; Matter of Deas v Levitt, 73 NY2d 525; Mackey v Montrym, 443 US 1.)
   OPINION OF THE COURT

Hancock, Jr., J.

Section 73 of the Civil Service Law authorizes the termination and replacement of civil servants when they have been continuously absent from and unable to perform the duties of their position for one year or more by reason of a disability. The questions raised are whether the Federal Due Process Clause requires a hearing prior to termination under section 73 and, if so, what form that hearing must take. In light of Cleveland Bd. of Educ. v Loudermill (470 US 532), we hold that the section 73 discharge in this case must be accompanied by pretermination notice and a minimal opportunity to be heard. To the extent that our holding in Matter of Economico v Village of Pelham (50 NY2d 120) permits a section 73 discharge with only a posttermination hearing, it is superseded by Loudermill (supra).

I

On November 15, 1986, petitioner Prue, a 19-year veteran of the City of Syracuse Police Department, was seriously injured in an accident unrelated to his work which allegedly prevented him from performing his duties as a police officer. Having exhausted all his paid vacation, personal and sick leave by October 15, 1987, petitioner requested reinstatement but failed to submit the medical documentation necessary to show that he was able to perform the duties of his position. On November 13, 1987, he again requested reinstatement, this time submitting a letter from his physician stating that he was able to return to a desk job. Prue, it appears, during the 10 years preceding his accident, had, as President of the PBA, been assigned to a desk job in the department pursuant to a collective bargaining agreement. Respondents rejected petitioner’s request and terminated his employment pursuant to section 73.

Although petitioner was offered a posttermination Económico hearing to be held within five days of his termination, he declined the hearing and commenced this CPLR article 78 proceeding contesting his termination. Supreme Court held that the termination was justified under section 73 and that the opportunity for the posttermination hearing satisfied the requirements of due process. That court relied on our decision in Economico (supra) where we held that Federal due process (see, Mathews v Eldridge, 424 US 319) compelled the interpretation of section 73 as affording a posttermination hearing in addition to the procedures specified in the statute. The Appellate Division reversed, holding that the United States Supreme Court’s ruling in Loudermill (supra) supersedes Economico (supra) and requires that discharged civil servants be afforded a pretermination "hearing” (157 AD2d 160, 165). We granted respondents’ motion and petitioner’s cross motion for leave to appeal to address the question of Loudermill’s effect on our holding in Economico. There should be an affirmance.

II

We agree with the Appellate Division that in a section 73 termination under circumstances as presented here, the Federal due process requirements established in Loudermill are not satisfied by the posttermination procedures specified in section 73 and in our holding in Economico. Loudermill (supra) involved the consolidated cases of two tenured public employees discharged from their jobs without pretermination hearings. Respondent Loudermill was dismissed from his security guard position for allegedly lying on his job application by stating that he had never been convicted of a felony. In fact, Loudermill had been convicted of a felony; he claimed, though, that he was unaware that the crime constituted a felony (470 US, at 535). Respondent Donnelly was discharged from his position as a bus mechanic because he had failed and refused to retake an eye examination. Both were terminated pursuant to an Ohio statute which authorized discharge for cause in the discretion of the employer and made available full, posttermination administrative review (id., at 535).

The Supreme Court held that due process required that the employees be given a pretermination opportunity to respond, in addition to the posttermination procedures provided for in the Ohio statute (id., at 547). The Court noted specifically that because of the apparent potential for an erroneous discharge or an inappropriate exercise of the discretion conferred under the Ohio statute, the minimal burden imposed on the employer in providing some preliminary opportunity to respond was justified (id., at 543-544). Loudermill’s discharge "turned not on the objective fact that he was an ex-felon or the inaccuracy of his statement to the contrary, but on the subjective question whether he had lied on his application form.” (Id., at 544, n 9.) The Court observed that the question was disputable and could not be properly answered without hearing Loudermill’s side of the story (id.). It also recognized that when a discharge is discretionary, as it was under the Ohio statute, "the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect.” (Id., at 543.)

Petitioner Prue’s termination under section 73 is controlled by the holding of Loudermill. The potential for an erroneous discharge or an inappropriate exercise of the discretion conferred under section 73 justifies the minimal burden placed on respondents in requiring them to provide petitioner with some pretermination opportunity to respond. Petitioner’s discharge implicates contested questions regarding his physical condition and whether his ability to perform the desk job he had filled for the preceding 10 years constitutes an ability "to perform the duties of his position” within the meaning of section 73. Moreover, like the Ohio statute in Loudermill, section 73 calls for the termination of employees in the discretion of the employer. Consideration of petitioner’s contentions concerning his ability to perform the desk job he had previously held could have been a significant factor in the initial discretionary decision of whether to order termination under section 73. Petitioner was given no opportunity to make these arguments prior to his discharge under the procedure followed by respondents. We hold that in order to meet the minimum requirements of Federal due process under Loudermill, petitioner must be given some pretermination opportunity to be heard in addition to the posttermination procedures required by section 73 and our ruling in Economico (supra).

III

The remaining question is what pretermination procedural formalities are mandated by Federal due process. We conclude that due process requires only notice and some opportunity to respond (see, Cleveland Bd. of Educ. v Loudermill, supra, at 545-546). The formality and procedural requisites of a hearing can vary depending on such factors as the importance of the interest involved, the extent to which that interest may be lost, the hardship imposed by the loss and the availability of subsequent proceedings (see, Loudermill, supra, at 545; Boddie v Connecticut, 401 US 371, 378). The Supreme Court has required full evidentiary hearings prior to adverse governmental action in cases of termination of government assistance where severe hardship will be immediately imposed, as, for example, when the government cancels Aid to Families With Dependent Children (see, Goldberg v Kelly, 397 US 254). The Loudermill Court noted, however, that the cutting off of public assistance in Goldberg presented significantly different considerations from the dismissal of the public employees involved in Loudermill (id., at 545). The Court decided that since the discharged employees were entitled to a full scale posttermination hearing, at which the propriety of their discharges would be finally determined, due process could be satisfied by a pretermination showing that "there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. See Bell v. Burson, 402 U. S., at 540.” (Id., at 546.) This, the Court stated, demands no more than that the employees be given an explanation of the charges against them and an opportunity to present their side of the story either in writing or in person (id., at 546).

In the present case, we see no need for procedural formality greater than that required in Loudermill (supra) to meet Federal due process standards. Here, as in Loudermill, posttermination review is also available to the discharged employee. Moreover, the questions to be screened at the pretermination hearing — whether petitioner was absent for one year or more and whether he is able to return to his position — are no more complex than those in Loudermill. Finally, petitioner’s discharge will impose no more hardship than that in Loudermill and clearly does not necessitate a full evidentiary hearing (cf., Goldberg v Kelly, supra). We hold that to meet the minimum demands of Federal due process petitioner should at least have been given an explanation of the grounds for the discharge and an opportunity to respond prior to his discharge.

In view of our interpretation of section 73 as requiring pretermination notice and opportunity to be heard comporting with the minimum demands of the Federal Due Process Clause, we agree with the Appellate Division that section 73 should not be held facially unconstitutional (see, People v Cintron, 75 NY2d 249, 260).

The order should be affirmed, without costs.

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

Order affirmed, without costs.

       Civil Service Law § 73 provides in pertinent part:
      “When an employee has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability * * * his employment status may be terminated and his position may be filled by a permanent appointment.”
      If within one year of termination of disability employees are certified pursuant to a medical exam as able to return to their position, then they may be reinstated in a same or similar position if a vacancy exists, or placed on a preferential hiring list if no vacancy exists.