text:
    In the Matter of the Arbitration between Benjamin Petrofsky, Appellant, and Allstate Insurance Company, Respondent.
    Submitted October 20, 1981;
    decided November 19, 1981

      POINTS OF COUNSEL

      S. Edmund Resciniti for appellant.
    I. The master arbitrator exceeded his powers of review in resolving a factual question in favor of Allstate. II. Petitioner’s constitutional right to due process of law has been violated.

      Marshall D. Sweetbaum and Benjamin Purvin for respondent.
    The opinion of Special Term and its resultant order was in direct contravention of section 675 (subd 2) of the Insurance Law which became effective on December 1; 1977. (Gruhn v Taylor Constr. Co., 180 Misc 956, 266 App Div 954; Blum v Fresh Grown Preserve Corp., 292 NY 241; Cook v Lewis, 285 App Div 1201; Baudenbaeh v Schwerdtfeger, 224 App Div 314; Gasser v Olin’s Car Rental, 41 AD2d 922; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493; Matter of Garcia v Federal Ins. Co., 46 NY2d 1040.)
   OPINION OF THE COURT

Jasen, J.

The appropriate scope of review for a master arbitrator when reviewing, pursuant to section 675 of the Insurance Law, the decision of an arbitrator is the question presented on this appeal.

The underlying facts of this case are that the petitioner, Benjamin Petrofsky, was injured in an automobile accident on December 4, 1977. At the time of the accident, petitioner was unemployed and, therefore, not entitled to no-fault benefits for loss of earnings. In February, 1978, he presented a letter to the respondent Allstate Insurance Company (Allstate) that indicated he had been offered employment at a salary of $300 per week starting January 3, 1978, but that the position was filled by another individual when petitioner was unable to begin work because of his injuries. Allstate then began paying loss of income benefits. These payments were discontinued as of April 30,1978, when petitioner suffered a heart attack, on the grounds that his inability to work was no longer attributable to the injuries he sustained in the automobile accident.

Petitioner brought a claim to recover loss of earnings benefits for the period from April 30, 1978 to March 31, 1979. This claim was arbitrated pursuant to subdivision 2 of section 675 of the Insurance Law, and petitioner was awarded $4,629.40 for lost earnings and an additional amount for attorney’s fees. Allstate moved pursuant to subdivision 2 of section 675 of the Insurance Law, to have the arbitrator’s award vacated by a master arbitrator. The master arbitrator did vacate the arbitrator’s award, finding it “grossly inconsistent with the facts, circumstances and proofs, and [to be] without a scintilla of support from the record.”

Petitioner then brought this proceeding to vacate the award of the master arbitrator pursuant to CPLR article 75. Special Term granted the petition and reinstated the arbitrator’s award. The Appellate Division reversed and reinstated the master arbitrator’s award. The court held that it was error for Special Term to vacate the master arbitrator’s award because no grounds for vacatur existed under CPLR article 75. We now reverse and reinstate the judgment of Supreme Court.

Judicial review of a master arbitrator’s award “is restricted, by the terms of the statute, to ‘the grounds for review set forth in article seventy-five’ of the CPLR (except in those cases where the award is $5,000 or more, and the applicant or insurer may seek de novo review in the courts).” (Matter of Bamond v Nationwide Mut. Ins. Co., 75 AD2d 812, 813, affd 52 NY2d 957.) CPLR 7511 allows a court to vacate an arbitrator’s award and, by judicial construction, a master arbitrator’s award on the application of either party if “the court finds that the rights of that party were prejudiced by: * * * (iii) an arbitrator, or agency or person making the award exceeded his power or * * * that a final and definite award upon the subject matter submitted was not made.” (CPLR 7511, subd [b], par 1, cl [iii].) The question before this court then is whether the master arbitrator exceeded his powers in vacating the award of the arbitrator.

The authority for the master arbitrator to review an arbitrator’s award is derived from section 675 of the Insurance Law. It states in pertinent part that a master arbitrator may vacate or modify an award made by an arbitrator “in accordance with simplified procedures to be promulgated or approved by the superintendent”, but that “[t]he grounds for vacating or modifying an arbitrator’s decision * * * shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules.” (Insurance Law, § 675, subd 2.) The master arbitrator, therefore, while not limited by CPLR article 75, is bound by the procedures promulgated by the Superintendent of Insurance.

Those procedures are set forth in 11 NYCRR 65.17 and establish the grounds on which a master arbitrator reviews an arbitrator’s award. Among those grounds are “any ground for vacating or modifying an award enumerated in article 75” of the CPLR, (11 NYCRR 65.17 [a] [1].) It is also grounds for review that the award exceeded the insurance policy’s limitations (11 NYCRR 65.17 [a] [2], [3]); that the award “was incorrect as a matter of law” (11 NYCRR 65.17 [a] [4]); that the award of attorney’s fees was improperly rendered (11 NYCRR 65.17 [a] [5]); and that the award was “inconsistent, and irreconcilable with the award rendered in the H.S.A. arbitration” (11 NYCRR 65.17 [a] [6]). The master arbitrator in this case, then, because there was no dispute concerning policy limitations and no H.S.A. arbitration was involved, could only review the arbitrator’s decision under the standards of CPLR article 75 or on the ground that the award was incorrect as a matter of law.

In cases of compulsory arbitration, this court has held that CPLR article 75 “includes review * * * of whether the award is supported by evidence or other basis in reason”. (Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493, 508.) This standard has been interpreted to import into article 75 review of compulsory arbitrations the arbitrary and capricious standard of article 78 review. (Caso v Coffey, 41 NY2d 153, 158; Siegel, New York Practice, § 603, pp 865-866.) In addition, article 75 review questions whether the decision was rational or had a plausible basis. (Caso v Coffey, 41 NY2d 153, 158, supra.) The master arbitrator, when reviewing an arbitrator’s award made in a compulsory arbitration setting pursuant to 11 NYCRR 65.17(a) (1) which authorizes article 75 review, is, therefore, like the courts, limited to reviewing on the basis of the limited grounds enumerated by article 75 (CPLR 7511; Siegel, New York Practice, § 602, pp 861-865) and to reviewing whether the arbitrator acted in a manner that was arbitrary and capricious, irrational or without a plausible basis. (Caso v Coffey, 41 NY2d 153, supra; Siegel, New York Practice, §§ 602, 603, pp 861-866.)

The superintendent’s regulations (11 NYCRR 65.17),-in addition, broaden the master arbitrator’s review to include questions of law (11 NYCRR 65.17 [a] [4]) which are not normally reviewable under article 75. (Siegel, New York Practice, § 602, p 861.) This regulation, however, states that “procedural or factual errors committed in the arbitration below are not encompassed within this ground”. (11 NYCRR 65.17 [a] [4].) Therefore, while the additional grounds contained in the superintendent’s regulations give the master arbitrator broader powers of review than the courts enjoy, the master arbitrator is also expressly precluded from reviewing factual or procedural errors.

It is on the basis of this interpretation of the applicable regulations that we hold that the master arbitrator, in this case, exceeded his powers in vacating the award of the arbitrator. A review of the master arbitrator’s written determination indicates that he engaged in an extensive factual review, which included weighing the evidence, assessing the credibility of various medical reports and on the basis of that review, making independent findings of fact. A master arbitrator’s powers of review do not encompass such a review of the facts, nor do they authorize him to determine the weight of the evidence. This is not to say that in making his determinations as to whether the arbitrator’s determination is correct, that the master arbitrator will conduct no review of the facts; rather, it means his review in this respect is limited to whether or not the evidence is sufficient, as a matter of law, to support the determination of the arbitrator. The role of the master arbitrator is to review the determination of the arbitrator to assure that the arbitrator reached his decision in a rational manner, that the decision was not arbitrary and capricious (11 NYCRR, 65.17 [a] [1]), incorrect as a matter of law (11 NYCRR 65.17 [a] [4]), in excess of the policy limits (11 NYCRR 65.17 [a] [2], [3]) or in conflict with other designated no-fault arbitration proceedings (11 NYCRR 65.17 [a] [5], [6]). This does not constitute a de novo review of the matter originally presented to the arbitrator.

Accordingly, the determination of the master arbitrator having been made in excess of his powers of review, the order of the Appellate Division reinstating the master arbitrator’s determination should be reversed and the judgment of Supreme Court should be reinstated, with costs.

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

Order reversed, with costs, and the judgment of Supreme Court, Kings County, reinstated.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    Darlene Trainor, Respondent, v John Hancock Mutual Life Insurance Company, Appellant, et al., Defendant.
    Argued October 14, 1981;
    decided November 23, 1981

      POINTS OF COUNSEL

      Edward T. Post for appellant.
    I. Insurance Department regulation 60 (11 NYCRR Part 51) is not applicable to the facts presented by the present case. II. John Hancock’s noncompliance with Insurance Department regulation 60 did not constitute conduct that was contrary to public policy. (Hollis v Drew Theol. Seminary, 95 NY 166; People v Hawkins, 157 NY 1; Messersmith v American Fid. Co., 232 NY 161; Straus & Co. v Canadian Pacific Ry. Co., 254 NY 407; Matter of Meit v P. S. & M. Catering Corp., 285 App Div 506; Acorn Employment Serv. v Moss, 292 NY 147; Tannenbaum v Provident Mut. Life Ins. Co. of Phila., 53 AD2d 86, 41 NY2d 1087.) III. John Hancock’s defense in this action, grounded on Trainor’s material misrepresentations in his insurance application, is not barred by its partial noncompliance with Insurance Department regulation 60. (Eastern Dist. Piece Dye Works v Travelers Ins. Co., 234 NY 441; Reznikoff v Equitable Life Assur. Soc. of U. S., 267 App Div 785, 294 NY 935; Geer v Union Mut. Life Ins. Co., 273 NY 261; Tolar v Metropolitan Life Ins. Co., 297 NY 441; Leamy v Berkshire Life Ins. Co., 39 NY2d 271; Vander Veer v Continental Cas. Co., 34 NY2d 50; Myers v Equitable Life Assur. Soc. of U. S., 60 AD2d 942.) IV. The employment of an inference based upon an inference by the trial court led to conclusions not justified by the record which require a reversal of the judgment below. (Ruppert v Brooklyn Hgts. R. R. Co., 154 NY 90; Lamb v Union Ry. Co. of N. Y. City, 195 NY 260; Leonard v Ashley Welding Mach. & Iron Co., 11 AD2d 1073.) V. Plaintiff-respondent’s recovery, if any, should be limited to $5,399.52.

      Peter Schneider for respondent.
    I. The evidence supported the Trial Judge’s finding that defendants violated the Insurance Department’s replacement regulations. Hancock is estopped from asserting the defense of misrepresentation. (Tannenbaum v Provident Mut. Life Ins. Co. of Phila., 41 NY2d 1087; Hurley v John Hancock Mut. Life Ins. Co., 247 App Div 547.) II. The decision of the Trial Judge is supported by the evidence.
   OPINION OF THE COURT

Jasen, J.

The question presented by this appeal is whether an insurance company’s failure to follow Insurance Department regulations when issuing a replacement life insurance policy estops it from raising the insured’s material misrepresentation on an application for life insurance as a defense to liability under that new policy.

Plaintiff, Darlene Trainor, seeks to recover in excess of $79,000 under a life insurance policy written on her husband’s life approximately seven months before his death in January, 1977. It is undisputed that in applying for that policy, Mr. Trainor did not disclose his prior hospitalization for alcoholic hepatitis and cirrhosis of the liver. It is similarly undisputed that if that medical information had been revealed, the policy would not have been written.

Prior to taking out the policy in dispute, the Trainers had allowed six separate policies on various members of their family to lapse for nonpayment of premiums. Four of the six policies automatically converted to paid-up term insurance under the extended benefits provisions of those contracts. The total value of the extended term benefits was $9,522.

In late June, 1976, Hancock’s agent visited the Trainers to discuss reinstating the lapsed policies. Instead, at least in part because Mr. Trainor had lost insurance benefits when he was laid off from his position as a New York City policeman, a plan was formulated whereby the old policies would be cashed in and a new policy written. The new policy provided for, at a comparable monthly premium, superior benefits. Hancock’s agent waited until the new policy had cleared underwriting and been issued before processing the cash surrender forms and applying the value of the old policies to the new policy’s initial premiums.

It is undisputed that in the course of formulating and executing this plan Hancock’s agent did not comply with Insurance Department regulations. (11 NYCRR Part 51.) Those regulations require the agent to obtain a statement listing existing policies and whether or not the new policy is intended to replace any of the existing policies. If the agent believes that the new policy is intended as a replacement policy, he must submit the proposal he presented to the insured along with certain disclosure statements to the company. The company is required to both inform its agents of these regulations and see that the regulations are complied with. The intent of the regulations is that “by reducing the opportunity for misrepresentation and incomplete comparison in replacement situations, and by precluding unfair methods of competition and unfair practices” that each insured will be able to make an informed decision in his own best interests. (11 NYCRR 51.1.) The particular effect of this agent’s failure to comply with the regulations was that Mr. Trainor was not properly warned that the new policy would be contestable for a two-year period.

The effect of the agent’s failure to comply with the regulations also made it significantly more difficult for the company to discern that this was, in fact, a replacement policy. This difficulty was compounded because the policy was being written for one of the company’s current insured so that no credit check, which might have revealed that this policy was intended to replace existing policies, was requested. The trial court correctly attributing the actions of the agent to the company held that Hancock had violated public policy by failing to conform to the Insurance Department regulations.

Based on this finding, the trial court found the determinative question to be “whether the insured’s alleged misrepresentations so outweigh Hancock’s violations that plaintiff should be barred from recovering despite those violations.” The court then held that although the decedent’s misrepresentation would normally bar recovery under the new policy, Hancock could not disclaim its obligations because Hancock had sought and accepted the benefits of the replacement contract. The Appellate Division affirmed, without opinion. We now reverse and dismiss the complaint.

Recently, in Tannenbaum v Provident Mut. Life Ins. Co. of Phila. (41 NY2d 1087), we had occasion to pass on the question of when an insurer would be estopped from relying on misstatements in the insurer’s application in order to void a policy. In that case, we held that “there [was] sufficient evidence in the record for the jury to find that the defendant should be estopped from relying on the misstatements in the insured’s application in order to void the policy.” The invocation of estoppel by the plaintiff against the defendant insurance company was condoned by this court only because the conduct of the company had been so violative of public policy that estoppel was authorized in support of those regulations and the public policy they embodied. (Tannenbaum v Provident Mut. Life Ins. Co. of Phila., 41 NY2d 1087, 1089, supra; 3 Pomeroy’s Equity Jurisprudence [5th ed], § 941, pp 733-734.)

In the Tannenbaum case, the plaintiff’s husband had $200,000 worth of fully effective life insurance written by the Guardian Insurance Company (Guardian). His agent, formerly with Guardian, induced the insured to surrender his policy with Guardian, which was incontestable, and secure comparable coverage with the agent’s new employer, the Provident Mutual Life Insurance Company (Provident) . As part of his effort to convince the insured to change companies, the agent gave the insured written comparisons of the benefits and costs of the two policies, but failed to explain that the new policy would be contestable for a two-year period. Although Provident’s agent did not indicate to the company that this was a replacement policy, Provident, unlike Hancock, was made aware that the policy they were to issue was intended to replace Guardian’s policies by a credit bureau report requested by Provident’s underwriting department. Despite this information, they failed to either require their agent to conform to the applicable regulations or to inform Guardian of the intended replacement as required by regulation. That regulation was also designed to assure full disclosure to the insured and to reduce potentially harmful competition. The sum total of Provident’s actions which amounted to actively inducing the insured to change policies despite the fact that such a change would not be in the insured’s best interests led this court to hold that Provident had so violated public policy that the plaintiff should be allowed to invoke estoppel despite the parties status in pari delicto.

The parties in the present case are also in pari delicto, there being no dispute that the company failed to comply with the applicable regulations and that the insured failed to disclose a prior hospitalization that, if known by the company, would have prevented the policy from being issued. This, then, is a case of counterestoppel, the normal effect of which is that the two estoppels “destroy each other”. (21 NY Jur, Estoppel, § 71, pp 105-106.) It is only in cases such as Tannenbaum (41 NY2d 1087, supra) where “public policy is considered as advanced by allowing either party to sue for relief against the transaction” (3 Pomeroy’s Equity Jurisprudence [5th ed], § 941, p 733) that the courts will interfere and allow one estoppel to rise above the other. (3 Pomeroy’s Equitable Jurisprudence [5th ed], § 941, pp 733-738.)

But it is incumbent upon courts when determining whether or not the case before them warrants application of the public policy exception to the rule of counterestoppel to weigh the facts of each case as they relate to the over-all public policy of this State.

This court, in deciding Tannenbawn (41 NY2d 1087, supra), found that Provident’s violations of the Insurance Department regulations were so gross that Provident’s misconduct outweighed the insured’s misconduct. This determination was a recognition that these regulations were designed to protect against the very situation in Tannenbaum (41 NY2d 1087, supra) where an insured is induced to replace existing coverage and, as a result, not only loses the benefits of that coverage, but also is left without legal or equitable remedy.

Neither the concerns of equity nor public policy dictate such a result in this case. Instead, it is possible for equity to formulate an alternate remedy which would return the parties to their original position prior to their misconduct. The concerns of public policy and equity are better served by formulating a remedy which does not allow either party to recover as a result of its wrongdoing. This is particularly so in a case such as this, where the plaintiff stands to recover a windfall if the exception to the rule of counterestoppel is applied.

In sum, we hold that the plaintiff is estopped by the insured’s fraudulent misrepresentations from claiming under the new policy, since that policy would not have been written but for that misrepresentation. (30 NY Jur, Insurance, § 946, pp 314-315.) But the defendant’s own misconduct in violating relevant Insurance Department regulations when issuing replacement life insurance policies precludes them from disclaiming all liability. Return to status quo ante requires that Hancock reinstate the previous policies and pay the plaintiff the benefits owing under those policies. This offer to restore the parties to their original status prior to their respective misconduct we assume is still open to the plaintiff and our disposition is based upon the confident expectation that it will be honored.

Since neither public policy nor equity requires a different result, the order of the Appellate Division should be reversed and the plaintiff’s complaint should be dismissed, without prejudice to a claim under the prior policies.

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

Order reversed, without costs, and complaint dismissed, without prejudice to a claim under the prior policies.


text:
    Clarence Vey et al., Plaintiffs, v Port Authority of New York and New Jersey et al., Defendants. (And a Third- Party Action.) Port Authority of New York and New Jersey, Fourth-Party Plaintiff-Respondent, v Grand Iron Works, Inc., et al., Fourth-Party Defendants-Appellants. (And a Fifth-Party Action.)
    Argued October 12, 1981;

    decided November 23, 1981

      POINTS OF COUNSEL

      Arthur N. Seiff and Nathan Cyperstein for Grand Iron Works, Inc., fourth-party defendant-appellant.
    I. Grand Iron is entitled to contractual indemnity by Ermco. (Goodrich v Ross-Ketchum Co., 274 App Div 157; Witte v Maier, 256 NY 465; Levine v Shell Oil Co., 28 NY2d 205; Kurek v Port Chester Housing Auth., 18 NY2d 450; Liff v Consolidated Edison Co. of N. Y., 29 AD2d 665, 23 NY2d 854; Mennes v Syfeld Mgt., 75 AD2d 936; Dillon v Riverso Constr. Co., 39 AD2d 744, 33 NY2d 530; General Elec. Co. v Hatzel & Buehler, 19 AD2d 40, 14 NY2d 639; Margolin v New York Life Ins. Co., 32 NY2d 149; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153.) II. Grand Iron is entitled to full indemnity by Ermco on the basis of common-law tort liability. (Biss v Town of Conquest, 45 AD2d 914; Beliefeuille v City & County Sav. Bank, 43 AD2d 335, 49 AD2d 323, 40 NY2d 879; Panzica v Colnick, 57 AD2d 946; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1; Rogers v Dorchester Assoc., 32 NY2d 553; Schwartz v Lipkin & Son, 76 AD2d 141; Cohen Agency v Perlman Agency, 51 NY2d 358; Norman Co. v County of Nassau, 63 Misc 2d 965; Margolin v New York Life Ins. Co., 32 NY2d 149; McDermott v City of New York, 50 NY2d 211.)

      Steven Di Joseph and Thomas R. Newman for Ermco Erectors, Inc., fourth-party defendant-appellant.
    I. The complaint against Ermco should be dismissed since there is no evidence to support the finding that Ermco was responsible to any extent for plaintiff’s injuries. The finding of negligence against Ermco is contrary to the evidence based as it is on impermissible speculation and inadmissible opinion testimony of lay witnesses. (Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1; Rochester Tel. Corp. v Green Is.

      Constr. Corp., 51 NY2d 788; Pollock v Pollock, 71 NY 137; Passantino v Board of Educ., 41 NY2d 1022; Schwartz v Macrose Lumber & Trim Co., 29 AD2d 781, 24 NY2d 856; Lane v City of Buffalo, 232 App Div 334; Babcock v Fitch-burg R. R. Co., 140 NY 308; White v Lehigh Val. R. R. Co., 220 NY 131; Digelormo v Weil, 260 NY 192; Lyle v State of New York, 44 AD2d 239.) II. Since Grand Iron’s liability is based solely on its voluntarily assumed contractual obligation to Port Authority, Grand Iron should not be permitted to pass on any portion of that purely contractual liability to Ermco. III. Grand Iron is not entitled to contractual indemnification from Ermco. (Allman v Siegfried Constr. Co., 49 AD2d 357; Grumman Amer. Aviation Corp. v International Business Machs. Corp., 77 AD2d 582; 67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245; James Berardi, Inc. v Callanan Inds., 63 AD2d 804; Matter of Friedman, 64 AD2d 70; Ruhland v Cowper Co., 72 AD2d 907; Levine v Shell Oil Co., 28 NY2d 205; Brainard v New York Cent. R. R. Co., 242 NY 125; Loba v Carey, 29 NY2d 302.) IV. Grand Iron is not entitled to indemnity from Ermco on the basis of common-law tort liability. (McDermott v City of New York, 50 NY2d 211; Putvin v Buffalo Elec. Co., 5 NY2d 447; Szarewicz v Alboro Crane Rental Corp., 30 AD2d 787; Storch v Moritsky, 24 AD2d 1027; Dole v Dow Chem. Co., 30 NY2d 143; Kelly v Long Is. Light. Co., 31 NY2d 25; Logan v Esterly, 34 NY2d 648; Rogers v Dorchester Assoc., 32 NY2d 553; Mazelis v Wallerstein, 51 AD2d 579; Berliner v Kacov, 51 AD2d 962.)

      William F. McNulty and Anthony J. McNulty for fourth-party plaintiff-respondent.
    Questions of law are presented vis-a-vis the Port Authority and the other parties hereto.
   OPINION OF THE COURT

Jasen, J.

The issue on appeal is whether a contractual provision requiring the subcontractor “to hold [the contractor] harmless and to indemnify and protect [the contractor] against all damages, claims or demands arising out of the work covered by this contract” requires indemnification when the contractor is held liable to the owner under an indemnification clause in a separate contract.

Plaintiff Clarence Vey, an employee of Ermco Erectors, Inc. (Ermco), was injured when he fell into an open stairway while working on the construction of an addition to a bus terminal owned by the Port Authority of New York and New Jersey (Port Authority). The Port Authority had contracted with Grand Iron Works, Inc. (Grand Iron), to fabricate and erect the structural steel necessary for this addition. Grand Iron subcontracted the erection of the steel to Ermco. Plaintiffs, Clarence Vey and his wife, Minnie Vey, brought this suit for injuries and loss of services against the Port Authority, the alleged general contractor Carlin-Atlas Construction Co., Inc. (Carlin-Atlas), and against Empire City Iron Works (Empire City), the company responsible for the construction of the stairway. Third-party actions were brought by each of the defendants against Grand Iron and Ermco. All parties stipulated that the plaintiffs were to receive $1,200,000 in damages.

After a non jury trial, solely on the issue of liability, it was determined that Port Authority and Ermco were each 50% liable. Since plaintiff Clarence Vey was an employee of Ermco, he could recover only workers’ compensation benefits from Ermco, but he could recover the full amount of the judgment from the other tort-feasor, the Port Authority. (Kelly v Long Is. Light. Co., 31 NY2d 25, 30.) The Port Authority then sought to recover over against Grand Iron on the basis of the indemnification clause in their contract. Grand Iron, in turn, cross-claimed against Ermco seeking indemnification not only on the basis of the indemnification clause in Grand Iron’s contract with Ermco but also on the basis of the common-law tort doctrine that a principal who has been held liable in tort because of the negligence of its agent is entitled to indemnification from that agent.

Supreme Court granted Grand Iron’s cross claim upon both theories. The Appellate Division modified that award by disallowing any recovery based upon contractual indemnity. The court reasoned that the Grand Iron-Ermco contract did not incorporate the indemnification provisions set forth in the Port Authority-Grand Iron contract and that the Grand Iron-Ermco contract indemnification provision evidenced “no intent by the parties to be bound by an indemnification arising out of a separate contract between different parties, but only against claims 'arising out of the work covered by this contract.’ ” (79 AD2d 920, 921.) The Appellate Division concluded that “Ermco therefore is liable to Grand Iron only for contribution based upon its 50% tort liability and not for contractual indemnity.” (79 AD2d, supra, at p 921.) We now modify to the extent of reinstating Grand Iron’s judgment over against Ermco.

The specific question raised by this appeal is whether Grand Iron is entitled to contractual indemnity by Ermco. Our examination of the contractual language and the surrounding facts and circumstances leads us to the conclusion that the indemnification provision in Grand Iron’s contract with Ermco was intended to require Ermco to indemnify Grand Iron for all damages incurred as a result of Ermco’s work regardless of how the claim arose.

The undisputed evidence indicates that Vey’s claim arose in connection with his work for Ermco, Grand Iron’s subcontractor for the erection of the structural steel at the addition to the Port Authority’s bus terminal. Ermco and its employee Vey were in the process of doing the contracted-for work when Vey was injured. That is precisely what Ermco had agreed to indemnify Grand Iron for — “damages, claims or demands arising out of the work covered by this contract in favor of, or happening to employees, the public or property.” The mere fact that Port Authority could seek indemnification only from Grand Iron does not bar Grand Iron from then seeking indemnification from Ermco when the original claim clearly arose during Ermco’s execution of its contract with Grand Iron.

Furthermore, the broad language of the Grand IronErmco indemnification provision evidences a clear intent by the parties for Ermco to assume all liability arising out of their work at this construction site. (Margolin v New York Life Ins. Co., 32 NY2d 149, 153.) The provision does not specifically limit the subcontractor’s liability to his own acts or omissions. If it had, an inquiry would have been required to determine whether Ermco was responsible for the injury. (Lopez v Consolidated Edison Co. of N. Y., 40 NY2d 605.) Rather, the broad language and the specific mention of employees and the public in this provision indicates an intent to indemnify Grand Iron against all claims arising out of the work Ermco contracted to perform. (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153.)

This interpretation is further bolstered by the undisputed facts of this case. Grand Iron was never present on the construction site, having subcontracted the erection work to Ermco. It was Ermco’s responsibility to insure that the work was done properly, that the work site was safe and that its employees abided by applicable safety regulations. The logical implication of these facts is that this indemnification provision was intended by the parties to totally indemnify Grand Iron for any liability arising from the Ermco-Grand Iron contract which was let pursuant to Grand Iron’s contractual responsibilities to Port Authority for the fabrication of the structural steel and for its erection on the construction site.

We believe the clear language of the indemnification provision, strengthened by the surrounding facts and circumstances, demonstrates that the parties intended Grand Iron to be indemnified by Ermco against all liability arising out of Ermco’s work for Grand Iron at the Port Authority’s construction site.

Accordingly, the order of the Appellate Division should be modified to reinstate Grand Iron’s judgment over against Ermco.

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

Order modified, with costs to Grand Iron and the Port Authority against Ermco Erectors, in accordance with the opinion herein, and, as so modified, affirmed.

       It was held at trial, and affirmed on appeal, that no liability was proved against Carlin-Atlas or Empire City. This appeal having been taken from only so much of the order as concerned the cross claims between Grand Iron and Ermco, there is no occasion to consider those issues.


author: Jones, J. Fuchsberg, J. Gabrielli, J. Jasen, J.

text:
    Dennis Bellanca, Doing Business as The Main Event, et al., Respondents, v New York State Liquor Authority et al., Appellants.
    Argued October 15, 1981;
    decided November 23, 1981

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Peter J. Dooley and Jeremiah Jochnowitz of counsel), for appellants.
    Alcoholic Beverage Control Law (§ 106, subd 6-a) is neither vague nor overbroad and does not violate section 8 of article I of the New York Constitution., (California v La Rue, 409 US 109; Matter of J. D. H. Rest, v New York State Liq. Auth., 21 NY2d 846; People v Stover, 12 NY2d 462; Matter of Scott v Board of Educ., 61 Misc 2d 333; Tinker v Des Moines School Dist., 393 US 503; People v Kovner, 96 Misc 2d 414; Ferguson v Skrupa, 372 US 726; People v Broadie, 37 NY2d 100; Matter of Beal Props, v State Liq. Auth., 37 NY2d 861; People v Moreira, 70 Misc 2d 68.)

      George P. Doyle for respondents.
    I. Subdivision 6-a of section 106 of the Alcoholic Beverage Control Law violates the New York State constitutional guarantee of freedom of expression. (Larkin v Putnam’s Sons, 14 NY2d 399; Tucker v Toia, 54 AD2d 322; Matter of McCann v Walsh Constr.

      Co., 282 App Div 444, 306 NY 904; Beneficial Fin. Co. of N. Y. v Bond, 83 Misc 2d 9; Doran v Salem Inn, 422 US 922.) II. The statute is void for vagueness and overbreadth. (United States v Harriss, 347 US 612; People v Scott, 26 NY2d 286; Wegman’s Food Markets v State of New York, 76 AD2d 95; Gooding v Wilson, 405 US 518.)

      Jay M. Zerin for Association of Adult Entertainment Taverns, amicus curiae. I.
    Topless dancing is a constitution-
    ally protected form of expression. (Bellanca v New York State Liq. Auth., 50 NY2d 524; Matter of Beal Props, v State Liq. Auth., 45 AD2d 906; California v La Rue, 409 US 109.) II. A State’s constitutional provision which is identical to a provision of the United States Constitution may be more broadly interpreted by the State courts than the identical provision of the Federal Constitution is interpreted by the United States Supreme Court. (Matter of McCann v Walsh Constr. Co., 282 App Div 444; Ives v South Buffalo Ry. Co., 201 NY 271; New York City v Central Sav. Bank, 306 US 661; PruneYard Shopping Center v Robins, 447 US 74; Lloyd Corp. v Tanner, 407 US 551; Cooper v California, 386 US 58.) III. New York has acted improperly in attempting to regulate conduct commonly known as topless dancing under the powers granted to it by the Twenty-first Amendment to the United States Constitution.
   OPINION OF THE COURT

Jones, J.

The guarantee of freedom of expression declared in our State Constitution mandates invalidation of the blanket proscription against all topless dancing in premises licensed by the State Liquor Authority presently stated in subdivision 6-a of section 106 of the Alcoholic Beverage Control Law. Although that statutory ban has been held to be valid under the Federal Constitution in consequence of the provisions of its Twenty-first Amendment, it is invalid under the guarantee of freedom of expression of our State Constitution, as to which the Twenty-first Amendment has no application.

This case is now before us on remand from the Supreme Court of the United States (452 US 714). On our prior consideration a majority in our court held that subdivision 6-a of section 106 of the Alcoholic Beverage Control Law was unconstitutional under the First Amendment of the United States Constitution insofar as it prohibits topless dancing at premises licensed by the State Liquor Authority (50 NY2d 524, rearg and amdt of remittitur den 51 NY2d 879). On that occasion we found it unnecessary to consider the parallel contention that the statute was unconstitutional under section 8 of article I of our State Constitution (50 NY2d 524, 528, n 5, swpra).

The rationale of the majority then was that the Supreme Court had recognized dancing as a form of expression and had held that topless dancing, like nudity in art and sculpture, was to be accorded at least limited protection under the First Amendment (Doran v Salem Inn, 422 US 922). We explicitly took note of what we considered a critical circumstance in the case, namely, that the statutory provision under scrutiny barred all topless dancing — “The only question before us is whether the statute is constitutional to the extent that it absolutely prohibits liquor licensees from presenting nonobscene topless dancing performances to willing customers under all circumstances” (50 NY2d 524, 529, supra). We then recognized, as we do now, the right of the Legislature or the State Liquor Authority without infringement of the constitutional prescriptions to prohibit or to regulate topless dancing on either of two bases. If the dancing is itself found to be obscene there can be no question but what it falls outside the shelter of any constitutional right of expression. Or, topless dancing although not obscene may be regulated, even to the extent of its prohibition, in circumstances so functionally related to the exercise of the State’s authority to regulate the sale and consumption of alcoholic beverages as to overcome the applicable constitutional guarantee of freedom of expression, as for instance, by a rule, such as that of the State Liquor Authority iu effect prior to the legislative enactment of subdivision 6-a, prohibiting topless dancing performed on a stage or platform less than 18 inches above the immediate floor level or removed by less than 6 feet from the nearest patron (9 NYCRR 53.1 [s] prior to its amendment).

The determinative infirmity in the enactment of subdivision 6-a by the Legislature was the total absence of any findings by the Legislature or by the State Liquor Authority to support a rationally based factual justification for the blanket prohibition. Chapter 321 of the Laws of 1977 was predicated on no legislative finding and it included no declaration of legislative intent. It was merely a straightforward, unembellished amendment of section 106 to add a new subdivision. Nor was the amending bill introduced by the State Liquor Authority or accompanied by any memorandum from the authority in support of its enactment. Presumably the authority had been content with the adequacy, for purposes of the discharge of its supervisory responsibility, of its own existing 18-inch 6-foot rule.

The dissenters in our court expressed ’the view, corresponding to that of the majority in the Supreme Court, that even if it were to be concluded that subdivision 6-a would otherwise be unconstitutional under the First Amendment its enactment by the State would be authorized under the provisions of the Twenty-first Amendment of the Federal Constitution.

The Supreme Court expressly upheld the validity of subdivision 6-a against attack under the Federal Constitution on the ground that its adoption was permitted under the provisions of the Twenty-first Amendment. “This Court has long recognized that a State has absolute power under the Twenty-first Amendment to prohibit totally the sale of liquor within its boundaries. * * * It is equally well established that a State has broad power under the Twenty-first Amendment to regulate the times, places and circumstances under which liquor may be sold * * * Pursuant to its power to regulate the sale of liquor within its boundaries, it has -banned topless dancing in establishments granted a license to serve liquor. The State’s power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs * * * Whatever artistic or communicative value may attach to topless dancing is overcome by the State’s exercise of its broad powers arising under the Twenty-first Amendment.” (452 US 714, —, 49 USLW 3950, 3951, supra.)

The posture in which we confront this case on remand can thus be summarized as follows. When the case was previously before us the majority held subdivision 6-a unconstitutional as violative of the First Amendment of the United States Constitution; the dissenters would have held that in view of the authority granted the States by the Twenty-first Amendment to regulate the sale and use of liquor, the provision of subdivision 6-a was not irrational and accordingly should be upheld. The Supreme Court similarly upheld subdivision 6-a against challenge under the Federal Constitution on the ground that the broad provisions of the Twenty-first Amendment substantially curtailed the operative scope of the First Amendment. Nothing in its opinion intimates, however, that it would have upheld the subdivision against First Amendment challenge had there been no Twenty-first Amendment.

We are, of course, bound by the decision of the Supreme Court as to the validity of subdivision 6-a under the provisions of the Federal Constitution. We are now called on to consider the validity of the subdivision under the provisions of our State Constitution, an issue which we did not address when the case was before us on the prior occasion and which, of course, was not within the scope of the Supreme Court’s review.

We perceive no reason to depart from our conclusion, reached before, that subdivision 6-a in its present form is violative of a constitutional guarantee of freedom of expression. In arriving at this result we have no occasion to consider whether our State constitutional guarantee is broader than the guarantee of the Federal Constitution. For present purposes it suffices to observe that, at the very least, the guarantee of freedom of expression set forth in our State Constitution is of no lesser vitality than that set forth in the Federal Constitution (considered without reference to the curtailing effect of its Twenty-first Amendment) . Our State Constitution contains no provision modifying the State guarantee of freedom of expression corresponding to what the Supreme Court has held is the diminishing effect of the Twenty-first Amendment with respect to the Federal guarantee of freedom of expression. We therefore hold that subdivision 6-a is unconstitutional under the provisions of our State Constitution.

Nor is there anything in the Twenty-first Amendment itself which inhibits or modifies the right of freedom of expression assured by our State Constitution. As read by the Supreme Court, the Twenty-first Amendment recognizes, so far as the restrictive provisions of the Federal Constitution are concerned, the absolute power of a State to prohibit totally, and consequently to regulate, the sale of alcoholic beverages. Appellants do not assert, however, that the source of the State’s authority to regulate the sale and consumption of alcoholic beverages is to be found in the Twenty-first Amendment. Contrary to the position now advanced by one of the dissenters, the authority of our State in this respect stems not from any grant to be found in the Federal Constitution but derives from the inherent police power of the State as a sovereign (see 9 NY Jur, Constitutional Law, § 143; US Const, 10th Amdt). The exercise of the police power by the State Legislature is necessarily subject to the strictures of our State Constitution, of which the guarantee of freedom of expression found in section 8 of article I is controlling in this instance. The Supreme Court has never espoused the proposition that the Twenty-first Amendment of the Federal Constitution confers a power on the States which is superior to or free from the constraints of their own Constitutions, and nothing cited by the dissenters is to the contrary.

Accordingly, we hold that the present statutory ban against topless dancing in premises licensed by the State Liquor Authority is prohibited by the guarantee of freedom of expression declared in section 8 of article I, there being no legislative findings or declaration in this instance providing warrant for the judicial conclusion that the categorical ban is sufficiently functionally related to the exercise of the State’s police power in the discharge of the responsibilities vested in the State Liquor Authority.

For the reasons stated, the judgment of Supreme Court should be affirmed, with costs.

Fuchsberg, J.

(concurring). Because Judge Jones’ analysis of the controlling constitutional and procedural issues — with all of which I agree — does not focus on the practical nature of the imposition on freedom of expression which we strike down anew today, I add this additional comment for myself:

Licensed liquor establishments, regardless of whether they provide nonobscene topless dancing entertainment, may not dispense alcoholic beverages to minors (Alcoholic Beverage Control Law, § 65).

As to adults, such performances are not thrust upon the patrons. Those who, understandably, do not choose to attend, should be, and are, perfectly free to stay away, and, presumably, they exercise that right. Our profound commitment to personal liberty demands not only that we respect their right to do so, but, correlatively, that we evince like respect for the right of adults who elect to attend. In a free society, one such right could not long exist without the other.

The protection of both is implicit in section 8 of article I of our State Constitution. Its guarantee is not confined to the expression of ideas that are conventional or those shared by a majority.

Gabrielli, J.

(dissenting). I am again impelled to dissent from the majority’s holding that the Legislature has no power to proscribe female topless dancing in an establishment which is licensed by the State Liquor Authority to dispense alcoholic beverages for on-premises consumption.

When the appeal was previously before this court, the majority declared the statutory ban on topless dancing in licensed establishments unconstitutional, as a consequence of the statute’s impermissible infringement on the Federal Constitution’s guarantee of the freedom of expression (US Const, 1st Arndt). The majority there declared that the State had not justified its attempt to regulate the mixture of topless dancing and alcohol. In so doing, our court failed to appreciate the broad power given the State by the Twenty-first Amendment to regulate the sale of liquor within its boundaries (Bellanca v New York State Liq. Auth., 50 NY2d 524). Having been reversed by the United States Supreme Court on this point directly (New York State Liq. Auth. v Bellanca, 452 US 714), the majority now turns to our State Constitution to reach the same result. I cannot agree.

In its reliance on the State-Constitution (NY Const, art I, § 8), the majority, for the first time, holds legislative activity to be unlawful on the basis of its infringement on the freedom of expression, notwithstanding the fact that the United States Supreme Court has clearly and expressly declared that the statute is within the ambit of State legislative power. The basis for the present holding by the same Judges who comprised the majority whose decision, as noted, was reversed by the Supreme Court, is that our State Constitution, whose guarantee of freedom of expression is worded in the same terms as the Federal guarantee, nevertheless does not contain a counterpart of the Twenty-first Amendment. Thus, it is intimated, in the absence of such a proclamation in our Constitution, the State is forbidden the power to regulate the sale of liquor, where that regulation impairs, in any way, some form of the freedom of expression.

I do not quarrel with the use of our State Constitution to afford broader guarantees to individuals than those granted by the Federal Constitution. Indeed, in a proper case, we have full authority to construe our own Constitution to provide such greater protections. I do not agree, however, with the development of a separate jurisprudence relative to the right of freedom of speech, in the absence of a legally compelling reason for doing so. I am entirely unpersuaded by the rationale of the majority, predicated as it is on the absence of the equivalent of a Twenty-first Amendment in our State Constitution. The Supreme Court has flatly and squarely held that the “State has absolute power under the Twenty-first Amendment to prohibit totally the sale of liquor within its boundaries * * * It is equally well established that a State has broad power under the Twenty-first Amendment to regulate the times, places and circumstances under which liquor may be sold” (New York State Liq. Auth. v Bellanca, 452 US 714, —, 101 S Ct 2599, 2600, supra). To now require, as a precondition to the exercise of such power in a manner expressly condoned by the highest court of this Nation, that the State must enact its own counterpart of the Twenty-first Amendment, is without reason or authority.

Even assuming, arguendo, the propriety of proceeding unhampered by the permissive scope of the Twenty-first Amendment, I have further disagreement with the majority’s holding. As the Supreme Court has noted, “the customary ‘barroom’ type of nude dancing may involve only the barest minimum of protected expression” (Doran v Salem Inn, 422 US 922, 932). Indeed, our own court, on the prior appeal in this very case, recognized that this form of activity is entitled to only “some constitutional protection” (Bellanca v New York State Liq. Auth., 50 NY2d 524, 531, supra [emphasis added]). The court there also noted that the State must demonstrate a rational connection between the activity to be prohibited and the State’s “legitimate concern in controlling liquor consumption”. Of course, our function is limited to making certain that a rational connection exists.

Thus, it appears conclusively that the State need only advance a rational justification for its prohibition on topless dancing in the circumstances presented here. Without question, I believe it has done so. In this connection, I note the legislative support memorandum accompanying the challenged amendment to section 106 of the Alcoholic Beverage Control Law:

“Nudity is the kind of conduct that is a proper subject for legislative action as well as regulation by the State Liquor Authority as a phase of liquor licensing. It has long been held that sexual acts and performances may constitute disorderly behavior within the meaning of the Alcoholic Beverage Control Law. What soberness and dress conceal, drunkenness and nudity reveal. Freedom, undisciplined by a sense of responsibility in its use, can produce chaos.

“Common sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior. This legislation prohibiting nudity in public will once and for all, outlaw conduct which is now quite out of hand.”

This memorandum was quoted with approval by the United States Supreme Court, in support of its view that even if explicit legislative findings were required to uphold the ban on topless dancing, they exist in this case. The majority proclaims, without citation of authority or good reason, that these statements are not sufficient. Thus, the majority would apparently deprive the Legislature of the power to use its “common sense”, as it professed to do in its support memorandum. It is concluded that this memorandum was not adopted by the Legislature, nor, it is said, is there any declaration of legislative intent. Contrary to this conclusion, it is noteworthy that the memorandum is reprinted in the 1977 New York State Legislative Annual (at p 150), whose prefatory remark states: “The Legislative Annual compiles primary source material on New York State legislation for the 1976 regular and extraordinary sessions. By annotating each bill enacted into law with its most pertinent memoranda, which were prepared by the agencies or individuals initiating or recommending particular legislation, the Annual provides contemporaneous documentation of legislative intent”. I think it can safely be concluded that the Legislature was aware of its sponsoring member’s memorandum. In the absence of any indications to the contrary, we can also properly conclude that it adopted that rationale in approving the legislation itself.

Thus, the Legislature has made clear the basis for its proscription of topless dancing on licensed premises. It has determined that nudity coupled with the public consumption of alcohol “begets undesirable behavior”. Surely the Legislature is in a better position to make that determination than is this court. The majority of this court nevertheless concludes that this finding is insufficient. I am at a loss to discern what type of finding would be required before what is essentially a “ Time, place and manner’ ” restriction on a nonobscene display of the human anatomy (see Young v American Mini Theatres, 427 US 50, 58, and analysis thereof; Nowak, Rotunda & Young, Constitutional Law, at pp 845-846; cf. FCC v Pacifica Foundation, 438 US 726) will be permitted by this court. I can only wonder what findings this court would now require if faced with the question of when the Legislature can properly prohibit topless dancing on our public streets, or indeed, on the steps of our own courthouse. The fallacy in the majority’s analysis rests in the imposition on the State Legislature of a high and specific threshold of findings concerning a right which is concededly entitled to only the “barest minimum” of constitutional protection.

The majority expresses concern that the State Liquor Authority neither introduced the amendment in question nor submitted a memorandum in support of its enactment. Thus, they conclude that the authority must have been content with its prior rules regulating topless appearances in licensed premises. In this connection, I note the memorandum to the Governor from the chairman of the State Liquor Authority, which, although received after action by the Governor, recommended approval of the amendment prohibiting nudity in licensed premises. This memorandum states: “Sponsors of the bill argue that there is an ever growing proliferation of topless dancing and go-go establishments, many of which are now creeping into residential areas and operating within short distances of churches and schools. Some of these establishments are being located in areas which are undergoing severe transition and then-presence acts as an additional irritant and causes homeowners to move to other communities. The bill would help to combat the pernicious effect of sex oriented businesses.” Thus, it is clear that the majority’s concern over the State Liquor Authority’s position (or claimed lack thereof) on topless barroom dancing is unfounded. Moreover, the authority’s position is really irrelevant to our determination in this case. We are to be concerned only with the Legislature’s findings and actions, and not those of its agency. Frankly, the majority’s holding demonstrates complete disregard for the action taken by the legislative branch of government with respect to a societal problem particularly within the sphere of authority consigned to its judgment.

As if the Supreme Court’s ruling in Bellcmca were not enough, our own court set forth the charter by which the Legislature could act. In Matter of Beal Props, v State Liq. Auth. (37 NY2d 861), we concluded on the rationale of the dissenting opinion below (45 AD2d 906 [Cooke, J.]), that the State Liquor Authority could not impose a sanction for nude dancing in a bar, inasmuch as that conduct, not lewd or indecent per se, had not been specifically proscribed by either statute or regulation (45 AD2d 906, 908, supra). The inescapable implication of the holding in that case is that once such a statute or regulation were adopted, the State Liquor Authority could properly prohibit nude dancing on licensed premises. The statute in question is nothing more than an effort to follow our direction that before such nonobscene conduct may be prohibited, it must be adequately detailed via statute or regulation so as to give notice to those who must abide by its dictates. I see no difference of constitutional magnitude between totally nude barroom dancing, which the court would apparently allow the Legislature to prohibit, and topless barroom dancing, which, according to the majority of this court, apparently the Legislature may not prohibit. I believe the Legislature acted properly, lawfully and constitutionally. Nonetheless, the majority has determined to go its own way and repudiate our own rationale in Beal. I dissent because I think the majority is wrong in so obdurately rejecting the direction of our prior precedent.

In conclusion, I stress, as I did in my previous dissent, that as Judges we are not to shut our eyes to reality: “No reasonable person, moralist or not, could deny that the admixture of alcohol and topless dancing presents a very real possibility of disturbances of the public peace in licensed premises, a problem which may be addressed in advance by the Legislature. The elected representatives of the people of this State have now chosen to avoid such disturbances by means of a reasonable restriction upon establishments which sell liquor for on-premises consumption. Although some may believe this solution to be unwise or unnecessary, there exists no justification for disturbing the legislative judgment in this case” (Bellanca v New York State Liq. Auth., 50 NY2d 524, 534, supra).

Accordingly, I dissent and vote to uphold the constitutionality of subdivision 6-a of section 106 of the Alcoholic Beverage Control Law.

Jasen, J.

(dissenting). I agree completely with the views expressed in the dissenting opinion of Judge Gabrielli. There is, however, an additional and more fundamental reason that compels me to dissent in this case. In holding that subdivision 6-a of section 106 of the Alcoholic Beverage Control Law is violative of the right to freedom of expression guaranteed by section 8 of article I of our State Constitution, the majority, in my view, misconceives the effect of the Twenty-first Amendment in terms of conferring a right upon this State, independent of the normal police power, to regulate the sale of liquor.

According to the majority, the Twenty-first Amendment has “no application” to our State Constitution. In their view, a State’s right to regulate the sale of alcoholic beverages is derived solely from the police power. Pursuant to this line of reasoning, the majority is able to formulate a rather neat and seemingly logical argument, to wit: because our State Constitution contains no equivalent to the Twenty-first Amendment that counterbalances the right to free expression guaranteed by section 8 of article I, subdivision 6-a of section 106 of the Alcoholic Beverage Control Law is invalid. I cannot agree.

Contrary to the majority’s view, when a State acts to regulate the sale of liquor within its boundaries, its authority stems from both its general police power and directly from the Twenty-first Amendment to the United

States Constitution. Indeed, rather than merely restoring to the States their pre-existing police power over the sale of alcoholic beverages .by repealing the Eighteenth Amendment, the second section of the Twenty-first Amendment expressly reserves to the States a power to regulate traffic in liquor: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Thus, although the States “require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has. been recognized as conferring something more than the normal state authority over public health, welfare and morals.” (California v La Rue, 409 US 109, 114.) This independent right to regulate the sale of liquor under the Federal Constitution has been interpreted by the Supreme Court as not only creating an exception to the commerce clause (e.g., Seagram & Sons, v Hostetter, 384 US 35, 41-42; Ziffrin, Inc. v Reeves, 308 US 132; State Bd. v Young's Market Co., 299 US 59), but, more recently, as qualifying rights guaranteed by the First Amendment as well — at least insofar as certain forms of nude and partially nude entertainment are concerned. (New York State Liq. Auth. v Bellanca, 452 US 714; California v La Rue, supra.) Perhaps the most persuasive support for the proposition that the Twenty-first Amendment confers upon the States a right to control the sale of alcoholic beverages independent of the normal police power may be found in the contrary remarks of one of the dissenting Justices in this very case. (See New York State Liq. Auth. v Bellanca supra, at pp 718, —, pp 2604-2605 [Stevens, J., dissenting]; cf. Craig v Boren, 429 US 190, 204-208; Wisconsin v Constantineau, 400 US 433; see, generally, Note, Effect of the Twenty-first Amendment on State Authority to Control Intoxicating Liquors, 75 Col L Rev 1578.)

Lest there be any further doubt on the subject, this court, on a prior occasion, has made clear that, notwithstanding a restoration of the normal police power, “the Twenty-first Amendment spells out an additional specific and federally protected right of each State to eliminate as well as regulate the liquor traffic within its borders.” (Seagram & Sons v Hostetter, 16 NY2d 47, 56, affd 384 US 35, supra [emphasis supplied].) Given the undisputed existence of this State’s right under the Federal Constitution to regulate the sale of liquor, it is difficult to understand the majority’s view, unsupported by the citation of any authority, that the Twenty-first Amendment has “no application” to our State Constitution. This Federally recognized power on the part of the States to control the commercial distribution of alcoholic beverages within their respective boundaries does not exist in a vacuum; nor is it limited to the confines of the Federal Constitution. The power conferred by the Twenty-first Amendment simply does not evaporate once the analysis shifts to a determination of the right to free expression under our State Constitution. Rather, this independent, Federal right to control the traffic in liquor subsists, and, pursuant to the supremacy clause, must be given full recognition and effect — even when considering the provisions of our own Constitution.

Placed in this perspective, a proper resolution of the issue presented as a result of the Supreme Court’s remand to us requires that the right to freedom of expression guaranteed by section 8 of article I of our State Constitution be weighed against the State’s right to regulate the sale of alcoholic beverages. In this regard, subdivision 6-a of section 106 of the Alcoholic Beverage Control Law must be viewed as an exercise of both the police power and this State’s independent right under the Twenty-first Amendment to control the sale of liquor within its boundaries. However, as I read the majority’s opinion in this case, the right to freedom of expression guaranteed by our State Constitution is coextensive with the First Amendment right to free speech. (At pp 234-235.) If this be so, then, in view of the Supreme Court’s determination in this case that the State’s right to ban the sale of liquor supercedes the protection afforded by the First Amendment, our State constitutional guarantee of freedom of expression must also give way to the Twenty-first Amendment. Therefore, the constitutionality of subdivision 6-a of section 106 of the Alcoholic Beverage Control Law should be sustained.

Of course, this court can recognize a right to freedom of expression under our State Constitution which is broader than the rights conferred under the First Amendment. (Cf. People v Elwell, 50 NY2d 231; Cooper v Morin, 49 NY2d 69; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; People v Isaacson, 44 NY2d 511; People v Hobson, 39 NY2d 479.) In my view, however, this would be most unfortunate. There is no significant difference between the language of the First Amendment and of section 8 of article I of the New York Constitution. Nor is any compelling reason offered to justify such an expansion of the State right to freedom of expression. Finally, such a holding would require that we deviate, for the first time, from the Supreme Court’s interpretation of constitutionally protected rights in this area.

In any event, the majority has declined to recognize any such broader right to freedom of expression under our State Constitution. In fact, the court continues to adhere to the principle that the guarantees of section 8 of article I are coextensive with the rights secured under the First Amendment. Instead, the majority, in the guise of effectuating our State constitutional right to freedom of expression, , has struck down subdivision 6-a of section 106 of the Alcoholic Beverage Control Law simply by ignoring this State’s independent right under the Federal Constitution to regulate the sale of liquor. As noted earlier, I have grave misgivings as to whether such a complete failure to recognize the effect of the Twenty-first Amendment upon our State Constitution accords with the mandate'of the supremacy clause.

Finally, it should be noted that subdivision 6-a of section 106 of the Alcoholic Beverage Control Law is not an across-the-board prohibition on topless dancing. Rather, the statute only bans topless dancing in establishments where liquor is sold for on-premises consumption. This fact, when coupled with a recognition that such forms of entertainment “involve only the barest minimum of protected expression” (Doran v Salem Inn, 422 US 922, 932; accord California v La Rue, supra, at pp 117-118), causes plaintiffs’ claim of unconstitutionality to be placed in serious doubt. In my view, subdivision 6-a of section 106 of the Alcoholic Beverage Control Law is a rational exercise of both the police power and this State’s independent right under the Twenty-first Amendment to regulate the sale of liquor. Although some may question the wisdom behind a statute which prohibits the mixing of alcohol and nude dancing, in the words of the Supreme Court, “the Twenty-first Amendment makes that a policy judgment for the state legislature, not the courts.” (New York State Liq. Auth. v Bellanca, supra, at p —, p 2602.)

For all these reasons, I would reverse the judgment of Supreme Court and uphold the constitutionality of subdivision 6-a of section 106 of the Alcoholic Beverage Control Law.

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

On reargument, following remand by the United States Supreme Court, judgment affirmed, with costs.

      . Subdivision 6-a (added by L 1977, ch 321) provides: “No retail licensee for on-premises consumption shall suffer or permit any person to appear on licensed premises in such manner or attire as to expose to view any portion of the pubic area, anus, vulva or genitals, or any simulation thereof, nor shall suffer or permit any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof.”

      . Prior to its amendment effective August 31, 1977 (the same date chapter 321 of the Laws of 1977 became effective), section 53.1 of the rules of the authority provided in pertinent part:
      “Any license or permit issued pursuant to the Alcoholic Beverage Control Law may be revoked, cancelled or suspended for the following causes:
      * :!-■ :¡¡
      “(s) for suffering or permitting any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof. The provisions of this subdivision shall not apply to any female entertainer performing on a stage or platform which is at least 18 inches above the immediate floor level and which is removed by at least six feet from the nearest patron.”
      Effective August 31, 1977 subdivision (s) was amended to read: “For suffering or permitting any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof.” In its original form subdivision (s) conformed to the provisions of rule 143.3 of the California Department of Alcoholic Beverage Control as to which no claim of unconstitutionality was raised in California v La Rue (409 US 109, 112, n 2) and which provided in its subdivision (2) : “Subject to the provisions of Subdivision (1) hereof, entertainers whose breasts and/or buttocks are exposed to view shall perform only when a stage is at least 18 inches above the immediate floor level and removed at least six feet from the nearest patron.”

      . To the extent that the Per Curiam opinion in the Supreme Court may be read as concluding that such findings did exist in this ease we cannot agree. It is true, as recited in that opinion, that the memorandum of the Assemblyman who introduced the bill, as was to be expected, contained a statement of his objective in introducing his bill. Although his memorandum might perhaps be classified as part of the legislative history, and thus possibly available to assist in the interpretation of this statute were it ambiguous, there is nothing to suggest that it was adopted by the Legislature or otherwise converted into legislative findings as a premise for enactment of the statute. Nor have we found any other document which may be classified as containing findings or a declaration of purpose by the Legislature.

      . As the dissenters recognized, “It is, of course, far too late in the day to suggest that dancing, even topless or nude dancing, is entitled to absolutely no First Amendment protections.” (50 NY2d 524, 532, supra.)

      . First Amendment of the United States Constitution:
      “Freedom of religion, speech and press; peaceful assemblage; petition of grievances
      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
      Section 8 of article I, of the New York State Constitution: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.”

      . The quotation from Seagram & Sons v Hostetter (16 NY2d 47, 56), cited in the dissent, relied for its authority on Mahoney v Triner Corp. (304 US 401). That case, however, stands only for the proposition that (p 404) “[independently of the Twenty-first Amendment, the State had power to [regulate the sale of intoxicating liquors] ” and that since the adoption of the Twenty-first Amendment the State’s exercise of that power is not subject to attack on grounds of denial of equal protection under the Fourteenth Amendment of the Federal Constitution — in effect a holding with respect to the interplay between the Fourteenth and Twenty-first Amendments of the Federal Constitution paralleling that of the Supreme Court in this case with respect to the interplay between the First and Twenty-first Amendments of the Federal Constitution.

      . The statement found at the conclusion of the Per Curiam opinion in the Supreme Court, that “the Twenty-first Amendment makes [the prohibition of topless dancing] a policy judgment for the state legislature, not the courts” (452 US 714, —, 49 USLW 3950, 3951, supra), is incomplete; any policy judgment made by our Legislature must necessarily conform to the commands of our State Constitution.

      . In Matter of Beal Props, v State Liq. Auth. (37 NY2d 861, 862) we held that the State Liquor Authority did not have authority to impose a sanction against nude dancing “absent a regulation by the agency giving notice that conduct not lewd or indecent per se was proscribed”. That decision may not properly be read as implying that just any regulation, regardless of its constitutional validity, would serve to confer such authority. What the agency adopted following our decision in that case was the presently unchallenged 6-foot 18-inch regulation referred to (supra, at p 232).
      We do not now undertake to define the standard to be applied under our State Constitution to determine whether a particular regulation of speech or conduct in connection with the sale or consumption of alcoholic beverages violates the guarantee of freedom of expression declared in section 8 of article I. It would seem that the test would be higher than that of mere rational relationship, the standard required for the justification of any exercise of the police power quite independent of the provision of section 8 of article I. Presumably, too, the standard would be significantly different depending on the nature of the speech or conduct to be regulated, e.g., as between topless dancing, on the one hand, and political activity, on the other, assuming indeed that the latter would be subject to any such regulation.

      . It must be conceded, and indeed the majority does not controvert or deny, that the provisions of the State and Federal Constitutions do not differ in any significant respect.

      . The court emphasized this pronouncement on the level of justification that must be offered by the State in the following statement: “Of course when the State seeks to prohibit more traditional forms of expression, it must make a more compelling showing of need for the restriction. For instance, it would be most difficult to sustain a law prohibiting political discussions in places where alcohol is sold by the drink, even though the record may show, conclusively, that political discussions in bars often lead to disorderly behavior, assaults and even homicide” (Bellanca v New York State Liq. Auth., 50 NY2d 524, 531, n 7).

      . I do not, of course, ascribe to the majority's holding the view that legislation prohibiting such conduct is unconstitutional (see Penal Law, §§ 245.00, 245.01, 245.02). However, inasmuch as such legislation is apparently based on the State’s interest in preventing indecent conduct in public and on the necessity of avoiding public disturbance, my difficulty rests merely with the character of legislative findings that would be required before such proscriptions will be found valid.

       The supremacy clause (US Const, art VI) provides in relevant part: “This Constitution * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (Emphasis supplied.)


author: Fuchsberg, J. Gabrielli, J.

text:
    The People of the State of New York, Respondent, v William Carrasquillo, Appellant.
    Argued September 17, 1981;
    decided November 23, 1981

      POINTS OF COUNSEL

      Helena Pichel Solleder for appellant.
    I. There was no probable cause to detain appellant initially; the subsequent seizure of his person and the property he was carrying was in derogation of his Fourth Amendment rights. (People v De Bour, 40 NY2d 210; People v Cantor, 36 NY2d 106; People v Moore, 47 NY2d 911; People v Cruz, 43 NY2d 786; People v McLaurin, 43 NY2d 902; People v Howard, 50 NY2d 583.) II. The error was not harmless; but for the evidence appellant might not have been convicted. (People v Crimmins, 36 NY2d 230; Chapman v California, 386 US 18; Fahey v Connecticut, 375 US 85.)

      Robert M. Morgenthau, District Attorney (Gregory L. Waples and Mark Dwyer of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. Defendant’s appearance and conduct supplied the police with an objective credible reason to request information from him. Thereafter, defendant’s inconsistent and demonstrably false answers to proper questions constituted reasonable cause for his arrest and the seizure of the contraband. (People v Harmon, 51 NY2d 863; People v Wharton, 46 NY2d 924; People v De Bour, 40 NY2d 210; People v Moore, 62 AD2d 155, 47 NY2d 911; People v Cantor, 36 NY2d 106; People v Howard, 50 NY2d 583; People v Cruz, 43 NY2d 786; People v Rosemond, 26 NY2d 101; People v Skinner, 48 NY2d 889; People v Ray, 62 AD2d 772.)
   OPINION OF THE COURT

Fuchsberg, J.

In the main, we here determine whether, under the facts in this case, William Carrasquillo’s arrest following a street encounter with the police was made with probable cause, and, if it was not, whether physical evidence seized at the time of his arrest should have been suppressed as violative of the Fourth Amendment and the comparable section of our State Constitution (NY Const, art I, § 12; US Const, 4th. Amdt).

The defendant was acquitted of robbery in the first degree but convicted of robbery in the second degree (Penal Law, § 160.10, subd 1), for which, having served the minimum term of imprisonment, he is now on parole. Before his case was tried, a motion he made to suppress the articles in question was denied summarily without a hearing. When the case went to the Appellate Division, that court, therefore, remanded the matter to Trial Term to conduct an evidentiary hearing, pending the outcome of which the appeal was held in abeyance. At the conclusion of the hearing, the suppression court found no violation of defendant’s rights. The Appellate Division, Justice Sandler dissenting, thereupon affirmed the judgment of conviction, without opinion. The dissenting Justice, of the view that the facts “did not * * * measure up to the probable cause required for an arrest”, would have granted the motion to suppress and ordered a new trial (75 AD2d 784). For the reasons which follow, we agree with that conclusion.

The facts on which the stated issue must stand or fall are not seriously disputed. At 8 o’clock one clear Manhattan morning, a marked police patrol car, traveling northbound on Columbus Avenue, was approaching the intersection of that street with West 81st Street. As it did so, its driver observed a pedestrian, who, opaque brown paper shopping bag in hand, also was approaching the intersection. The pedestrian, who turned out to be the defendant, was proceeding northerly along the west sidewalk of Columbus Avenue at a normal gait. The officer also noticed that the defendant’s clothes were untidy and that his hair was “frizzled up”. Further, as the car was about to enter the intersection, the officer testified that his eyes and those of the defendant met. Then, noticing that the latter made a “quick” left turn at the corner, the officer decided to back up and swing his vehicle into the intersection, where he stopped right off the southwest corner and within six feet of where the defendant was standing.

Alighting, the uniformed police officer and his partner went to the defendant and asked, “What do you have in the bag?” The response, given unhesitatingly so far as the record shows, was to name three items: a hair dryer, rosary beads and a radio. Asked the make of the radio, the defendant answered that it was a Sylvania, a popular electronics trade name. He then voluntarily proceeded to take the articles from the bag and hand them to the officers for their inspection. At that point, while the operator of the police car was handling the radio, noticing that it did not bear the name Sylvania, but that of Zenith, another well-known manufacturer of similar articles, he next asked the defendant “if [the articles] were his”. To further quote the officer, “ [Defendant] said he found them in a garbage a couple of blocks away”. Without more, the police thereupon placed the defendant and the contents of his shopping bag in the police car and took him to the police station. There he and the transported property were to be detained until a later search of precinct records unearthed a witness who would identify the articles; whereupon, he was formally booked for possession of stolen property.

On analysis, these events, logically and legally, are conveniently divisible into two parts. The first concerns itself with the period which preceded the inception of the police activity, i.e., the time when they undertook to approach the defendant. The second deals with their decision to arrest him.

Focusing first on the earlier period, existing case law makes extended discussion unnecessary. For, it can hardly be doubted that there was no justifictaion for detaining the defendant when the police initiated the confrontation. To begin with, it is agreed that at this point the police conduct was not propelled by any knowledge that a crime had been committed or was about to take place, or, for that matter, that the defendant had been involved in such an episode. And, surely, whether the defendant was more or less attentive to costume or coiffure, particularly in this day of variegated dress, did not sanction restraint on his liberty or privacy. So too, that his eye was caught by the cruising police vehicle did not forfeit his freedom of movement. Nor, for the purpose of determining whether any detention could be so premised, can it be said that the turn he took at the corner, towards which he already was heading when the police drove up, provided an excuse to invade his personal security; given that almost any change in direction will call for sudden alteration in body movement, no more significance can be attached to the officer’s instantaneously perceived impression that defendant’s turn was “quick”, especially when at all other observed times he was seen to walk at a “normal” pace. These, neither singly nor in combination, constituted other than “innocuous behavior”, sole reliance on which would impermissibly reduce the foundation for any intrusion to nothing but “whim or caprice” (People v De Bout, 40 NY2d 210, 216-217; see, also, People v Howard, 50 NY2d 583, 590; People v Allende, 39 NY2d 474, 477). By no means do they reach the level of “reasonable suspicion”, which this court in De Bour indicated was essential to justify an encounter “involving actual or constructive restraint” (People v De Bour, 40 NY2d 210, 216, supra).

But, in this instance, at least at the outset, there does not appear to have been any “actual or constructive restraint”. No claim is made, for instance, that, in purportedly exercising their common-law right to inquire, the police acted in a threatening or abusive manner. Their questions were brief and to the point. They did not suggest to the defendant that he was compelled to answer their questions. Nor did they do or say anything to indicate that he was not free to leave. No move was made to search or seize liis person or possessions. No frisk or any other action that would connote a prospect of resistance or violence or the avoidance of resistance or violence was as much as hinted. Moreover, while the defendant was asked what was contained in the bag, there was no demand that he open it or hand over its contents. Perhaps reflecting the commendably relaxed way in which this inquiry was carried on, the defendant, rather than evade or refuse to answer the questions, as was his right (People v Howard, 50 NY2d 583, 586, supra), elected to respond with alacrity and on his own proffered the contents of the bag for inspection.

Furthermore, though, as already indicated, the observations of the police were insufficient to permit them to act on “reasonable suspicion” and certainly not on “reasonable cause”, justification for simple inquiry, though meager, was not nonexistent. Comparison with De Bour, makes this self-evident. There, the defendant, by crossing from one side of a street to the other when, had he not done so, he would have encountered approaching policemen, was held to have supplied a sufficiently credible and objective predicate on which to found a bare informational inquiry (People v Be Bour, supra). Allowing for the fact that no two criminal cases are ever exactly alike, here police perception that defendant was paying unusual attention to the patrol car and that his turn into the side street was “quick”, even if these acts or the rapid succession in which they occurred, in fact were innocuous or coincidental or misunderstood, are equitable with the circumstances described in Be Bour. (See United States v Mendenhall, 446 US 544.)

However, though the defendant was not detained against his will while the street inquiry was in progress, as the People concede, from the moment the police directed him to their car for removal to the police station, he had been placed in custody and, concomitantly, the property in the bag had been seized. The question then becomes whether there was probable cause for this arrest. For, the cases are legion that, because the Fourth Amendment specifically guarantees that “no warrant shall issue, but upon probable cause”, the requirement for searches and seizures made without a warrant “cannot be less stringent” (Wong Sun v United States, 371 US 471,479).

In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice (People v De Bour, 40 NY2d 210, 216, supra; People v Corvado, 22 NY2d 308; La Fave, “Street Encounters” and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich L Rev 40, 73-75). In making such a judgment, we must also bear in mind that “[i]n dealing with probable cause * * * we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (Brinegar v United States, 338 US 160, 175).

As our analysis has revealed, the events which preceded the officer’s approach to the defendant fall far short of any justification for an arrest of the defendant. Consequently, the application of the foregoing principles now requires us to concentrate on what was disclosed during the course of the ensuing inquiry. As the transcript tells us, except for one thing, this was a most uneventful encounter. The defendant did not attempt to flee; rather, he was most co-operative and most responsive. His story on the whole was quite straightforward and was told without prodding. The single suspicious note was sounded when, after the defendant had stated that the radio was a Sylvania, the officer happened to notice that it was a Zenith. But the sequence of questions, as described in the record, does not indicate the inquiring officer brought his discovery of the discrepancy to defendant’s immediate attention. Instead, astutely, he at once asked the defendant to whom all the articles belonged and received an immediate reply that they had been found by defendant in a nearby garbage heap. Looking at it pragmatically, the thus described manner and recency of acquisition of this discarded secondhand item could, of course, have been a ready, a logical and a truthful explanation for why its new possessor thought of it in terms of one widely known manufacturer of small radios rather than another. All the more is this so since the explanatory information was produced in an answer seemingly unprompted by any question which might suggest that any doubt now lurked in the officer’s mind. It must also be remembered that at this time the officers had no knowledge that any of the three articles, none of which appeared to have any appreciable intrinsic value, figured in any crime. Furthermore, bearing in mind, then, that, in an otherwise unflawed accounting of his possession of the property, the singular imperfection was not without reasonable explanation, it seems to us impossible to say that the picture was one more consistent with guilt than with innocence.

This said, some words are in order on People v Moore (47 NY2d 911), where, in a memorandum decision on which the People place great reliance, we reversed an order of the Appellate Division which, inter alia, had granted defendant’s motion to suppress evidence seized incident to an arrest as a matter of law. Even for an issue which is so heavily dependent on the facts and circumstances in a particular case as is probable cause, the line of demarcation between Moore and the present case is sharp. True, in each, the defendant was arrested following a common-law police street inquiry concerning articles he was carrying. But in most other respects, the controlling details are dramatically different. In Moore, for instance, the defendant presented the unusual picture of one who, limping and bearing a serious wound over his temple, was first seen tramping along covered with snow and carrying a pillowcase, which looked like it contained a television set slung over his shoulder; in sharp contrast, Carrasquillo, as we know, presented the conventional picture of one who bore no signs of any fracas, was walking normally in broad daylight and was carrying nothing but an ordinary brown paper shopping bag in his hand. In Moore, when the police asked what the pillowcase contained, the defendant replied that it held a Sony television set and a fur coat, but when, upon a detective’s request, inspection was permitted, it was found to contain three pieces of jewelry and watches as well; in Carrasquillo, however, the inspection volunteered by the defendant tallied with .the three articles he had described. In Moore, after misdescribing the name of the television set, the defendant could offer no explanation for doing so; though Carrasquillo, too, confused the radio names, implicit in his other answers was a plausible explanation for having done so. In Moore, the defendant was unable to explain where he had obtained the television set; here, the defendant suffered from no such inexplicable uncertainty. In sum, the balance struck between the rights of the defendant and that of the People was as different in the two cases as day is from night.

Finally, we treat with the People’s harmless error contention. The defendant, insisting that he had been misidentified, relied on an alibi defense. As the dissenting Justice below emphasized on this score, the People presented no more than an identification by a victim who never had seen the defendant before the robbery in which the latter allegedly participated. It is also noteworthy that, although the other alleged participant is one with whom the victim was acquainted and whom he presumably could easily identify, this person was never produced. Consequently, we adopt the view that the admission of the articles sought to be suppressed, especially since the error in failing to suppress them is of constitutional dimension, was not harmless (see People v Knapp, 52 NY2d 689, 698; People v Crimmins, 36 NY2d 230, 237).

For all these reasons, the order should be reversed, the motion to suppress granted and the case remitted to Supreme Court, New York County, for further proceedings on the indictment.

Gabrielli, J.

(dissenting). I believe our decision in People v Moore (47 NY2d 911) governs the disposition of ' this case and requires an affirmance of the order of the Appellate Division sustaining the defendant’s conviction of robbery, second degree.

The events leading to defendant’s arrest are not in substantial dispute. At 8:00 a.m. on a Saturday morning, two police officers observed defendant walking down the street. His clothing was dirty, his hair disheveled, and he was carrying a shopping bag. Defendant noticed the officers and made a quick turn onto another street, continuing to look back at the police officers. The officers pulled up near defendant and approached him, asking him what he had in the bag. The defendant responded that he had a hair dryer, rosary beads and a radio. When asked to identify the make or brand of the radio, defendant said it was a Sylvania. He then proceeded, without request, to take the items out of tide shopping bag and show them to the officers. One officer, noting that the radio was in fact a Zenith, asked defendant if the items belonged to him. Defendant replied that they did, but when further queried why he had misidentified the brand of the radio, defendant changed his story and stated that he had found the items in the garbage a few blocks away. Defendant was then arrested and taken to the Twentieth Precinct, where'the officers learned that the items defendant was carrying were among those stolen in a robbery earlier that morning. Defendant was charged with that robbery, after its victim identified him as the perpetrator.

There is no question that the officers’ conduct, up to the point at which defendant was arrested, was proper. The issue is whether, under the undisputed facts and circumstances, the police officers had probable cause to arrest the defendant. Believing as I do that this case is substantially indistinguishable from our previous holding in People v Moore (47 NY2d 911, revg on dissenting opn below 62 AD2d 155), I would hold that defendant’s arrest was not unreasonable, and there is thus no need to suppress the items seized from him.

In People v Moore, the defendant was observed limping down a street, with a cut on his left temple, and a pillowcase through which the outline of a television set could be discerned. These observations justified the initial encounter between the police and defendant. Further intrusion was found reasonable when the defendant informed the police that he was carrying a Sony television set and a fur coat. Defendant then allowed the officers to look inside the pillowcase, whereupon they discovered watches, jewelry and other items, besides the fur coat and the television, which it turned out, was of the General Electric brand. Defendant could not explain where he got these items. All of these circumstances led to our holding that the officers entertained a reasonable suspicion that defendant had committed a crime.

As noted, I disagree only with the majority’s conclusion that, at the time of the arrest, probable cause did not exist. My disagreement rests upon my belief that the totality of the circumstances must be examined in order to determine whether probable cause existed. At the time of the arrest, the police were faced with an extraordinary collection of items in defendant’s possession, his inability to identify the make of the radio, and, importantly, the change in his explanation regarding the origin of his possession of the items when confronted with his inability to identify the radio’s brand.

That theffiinute details of the encounter might differ but slightly from those present in Moore does not justify a departure from its holding where the totality of circumstances renders the two cases so'"strikingly similar.

Accordingly, I dissent and vote to affirm the order of the Appellate Division.

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

Order reversed, etc.