text:
    615 Company, Appellant, v Gene E. Mikeska, Respondent.
    Argued February 13, 1990;
    decided May 3, 1990

      APPEARANCES OF COUNSEL

      Jeffrey R. Metz, Gerald R. Shapiro and Patricia DeCicco Goldstein for appellant.

      Kenneth G. Schwarz and Ruth C. Haber for respondent.
   OPINION OF THE COURT

Memorandum.

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

It has long been the rule in this State that a landlord who is uncertain as to whether a lease must be renewed can ask a court to declare the rights of the parties and resolve the dispute before the time for renewal arrives (Leibowitz v Bickford’s Lunch Sys., 241 NY 489; Fidelity & Columbia Trust Co. v Levin, 248 NY 551; see also, Borchard, Declaratory Judgments, at 625-628). In the circumstances presented, however, involving a situation heavily regulated by statute, we agree with the Appellate Division that the general rule is not dispositive.

At issue here is a lease under the rent stabilization laws, which provide that a landlord must offer a renewal lease during a "window period” shortly before the lease’s expiration, unless the tenant has not been using the housing accommodation as a "primary residence” (Rent Stabilization Code [9 NYCRR] §§ 2523.5, 2524.4 [c]). That a tenant is not using the premises as a "primary residence” does not entitle the landlord to eviction during the lease term, but only to nonrenewal, and the landlord’s right to nonrenewal on this basis can be interposed only during times specified by statute in the window period. While we are not now called upon to determine what would constitute "primary residence” during a lease term, it would seem to be generally desirable for a court considering the issue of nonprimary residence to be able to evaluate the entire history of the tenancy to the time of renewal.

We conclude, therefore, that it would be inconsistent with the statutory concept of "primary residence,” as well as the requirement of a legally matured controversy for a declaratory judgment action, to permit a landlord to avail itself of that remedy prior to the window period in the circumstances presented by cases such as these.

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

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of David Hazan, Inc., Formerly Known as David Fur Couture, Inc., et al., Appellants, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Argued March 20, 1990;
    decided May 3, 1990

      APPEARANCES OF COUNSEL

      Fred Ehrlich for appellants.

      Robert Abrams, Attorney-General (Daniel Smirlock, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (152 AD2d 765).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa. Judge Hancock, Jr., dissents and votes to reverse for the reasons stated in the dissenting memorandum by Justice Ann T. Mikoll at the Appellate Division (152 AD2d, at 767-769; see, Richfield Oil Corp. v State Bd., 329 US 69).


text:
    The People of the State of New York ex rel. Nathaniel Abdullah, Appellant, v Anthony J. Laveglia, as Warden of the Brooklyn House of Detention, Respondent.
    Submitted April 2, 1990;
    decided May 3, 1990
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous Appellate Division order absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for poor person relief and assignment of counsel dismissed as academic.


text:
    Edward J. Kuriansky, as Deputy Attorney-General for Medicaid Fraud Control, et al., Respondents, v Professional Care, Inc., Appellant, et al., Defendants.
    Submitted April 9, 1990;
    decided May 3, 1990
   Motion for leave to appeal from the March 6, 1990 judgment, seeking review of the February 26, 1990 Appellate Division order denied; motion for leave to appeal from the March 15, 1990 Supreme Court order denying movant-defendant’s motion for summary judgment dismissed upon the ground that this court has no jurisdiction to entertain a motion for leave to appeal from that order (NY Const, art VI, § 3 [b]; CPLR 5602); motion for a stay dismissed as academic.


text:
    Miriam Oginski, Individually and as Personal Representative of Joseph Oginski, Deceased, Appellant, v Allan Rosenberg et al., Respondents.
    Submitted April 9, 1990;
    decided May 3, 1990
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; 2103 [b] [2]; 22 NYCRR 500.11 [d] [1] [iii]).

Judge Bellacosa taking no part.


text:
    In the Matter of Charles Brucia et al., Appellants, v Planning Board of the Town of Huntington et al., Respondents.
    Submitted March 12, April 9, 1990;
    decided May 3, 1990
   Motion for leave to appeal denied. Cross motion by respondents Rotolo for an order tolling the 180-day period of conditional final approval denied.

Motion by respondent Sherri Construction Corporation for an order tolling the 180-day period of conditional final approval denied.


text:
    The People of the State of New York, Respondent, v Julio Basora, Appellant.
    Argued March 28, 1990;
    decided May 8, 1990
    APPEARANCES OF COUNSEL

      Domenick J. Porco for appellant.

      Carl A. Vergari, District Attorney (James A. Montagnino, Maryanne Luciano and Richard E. Weill of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted after a jury trial of criminal sale of a controlled substance in the first degree. The charges arose out of a transaction occurring in the parking lot of a motor inn in Tuckahoe, New York, where defendant’s alleged agent, in the company of a police informer, sold drugs to undercover police officers while defendant looked on from a distance. Defendant and his agent were arrested in the parking lot when the sale was completed.

It was the People’s theory that defendant, a major drug dealer, had masterminded the sale but had carefully insulated himself from it to avoid incrimination. To support this theory at trial, a police investigator, called by the People during their case-in-chief, testified that after he approached defendant and informed him he was under arrest, "[defendant] looked at me, kind of smiled” and then cooperated with the police as they handcuffed him and placed him under arrest. During summation the prosecutor commented on this and upon defendant’s smiling in the courtroom during the trial. He invited the jury to infer from these acts that, although guilty, defendant believed he had sufficiently removed himself from the sale to avoid a finding of criminal liability.

Defendant had the constitutional right to remain silent at the time of his arrest (NY Const, art I, § 6; US Const 5th Amend) and his exercise of that right at or after his arrest cannot be used by the People as part of their direct case (People v Conyers, 49 NY2d 174, 177; People v Rothschild, 35 NY2d 355, 359; People v Rutigliano, 261 NY 103, 106-107; see generally, People v Lourido, 70 NY2d 428, 434). We have also held, under our State rules of evidence, that silence in the face of police interrogation shortly after evidence of a crime is uncovered is usually ambiguous and its probative value minimal (People v De George, 73 NY2d 614, 618; People v Conyers, 52 NY2d 454, 458; see also, People v Conyers, 49 NY2d 174, 181, supra; United States v Hale, 422 US 171,176-177).

In this case, the trial court erroneously allowed the People, as part of their direct case, to thwart defendant’s Fifth Amendment right by attributing communicative value to his act of smiling (see, People v Conyers, 49 NY2d 174, 177, supra). The People argue that the evidence of defendant’s reaction to the police was not offered as a communication but as an affirmative act by defendant producing circumstantial evidénce of consciousness of guilt, similar to flight from custody (see, People v Yazum, 13 NY2d 302, 304-305; Richardson, Evidence § 167 [Prince 10th ed]). A smile, however, can convey many different states of mind — for example, relief, bewilderment, nervousness, exasperation or happiness (see, People v De George, 73 NY2d 614, 618-619, supra). Admission of such testimony as evidence of a consciousness of guilt was erroneous because the evidence was ambiguous and its probative value minimal. That is all the more so here because no statement was made to defendant that might evoke a response of any kind (see, People v De George, 73 NY2d 614, 620, supra; People v Allen, 300 NY 222, 225; People v Egan, 78 AD2d 34, 36).

Defendant also contends that it was error for the prosecutor to comment on his deportment in the courtroom, particularly his smiling at times during the trial (see, United States v Schuler, 813 F2d 978, 979-982; United States v Wright, 489 F2d 1181, 1186). After defense counsel objected to these comments, the Judge stated that he would cure any alleged error in his charge. He failed to do so, however, and defendant neither renewed the objection nor requested further instructions. In the absence of an objection to the charge or a request for further clarification at a time when the error complained of could readily have been corrected, no question of law reviewable by this court has been preserved (People v Robinson, 36 NY2d 224, 228; see also, People v Burke, 72 NY2d 833; CPL 470.05 [2]).

Given the strong proof of defendant’s guilt, the preserved evidentiary error standing alone was harmless beyond a reasonable doubt (see, People v Crimmins, 36 NY2d 230, 237; Chapman v California, 386 US 18, 24). An undercover informant provided detailed testimony of defendant’s involvement in the drug transaction, and this testimony was corroborated by police witnesses.

Defendant’s remaining contentions are either without merit or unpreserved for our review.

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

Order affirmed in a memorandum.


text:
    In the Matter of Larry E. McKenzie, Jr., Appellant, v Norwood E. Jackson, as Commissioner of the Westchester County Department of Correction, Respondent.
    Decided May 8, 1990
    APPEARANCES OF COUNSEL

      Robert David Goodstein for appellant.

      Marilyn J. Slaatten, County Attorney (Carol L. Van Scoyoc of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner was dismissed from his position as a probationary correction officer by respondent Commissioner of the Westchester County Department of Correction, after testing positive for cannibis in a random urinalysis test conducted in the seventh month of his 12-month period of probation. The test was mandated by the Department’s policy of requiring probationary correction officers periodically to produce urine sampies to be analyzed for evidence of illegal drug use. Petitioner was aware of this policy when he accepted the position. We have today concluded in Matter of Seelig v Koehler (76 NY2d 87 [decided today]) that the random urinalysis testing of tenured correction officers of the New York City Department of Correction, without reasonable suspicion and under circumstances and procedures nearly identical to those employed in this case, comports with the exception articulated in Matter of Patchogue-Medford Congress of Teachers v Board of Educ. (70 NY2d 57) and is therefore constitutionally permissible (see also, Matter of Caruso v Ward, 72 NY2d 432). No different result is warranted here.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Melanie Tarka, Appellant.
    Decided May 8, 1990
    APPEARANCES OF COUNSEL

      Melanie Tarka, appellant pro se.

      Robert M. Morgenthau, District Attorney (Carthy A. Smith of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed, the judgment of conviction vacated and the information dismissed.

To be facially sufficient, an information must contain allegations of every element of the offense charged and the defendant’s commission thereof (CPL 100.40 [1] [c]; 100.15 [3]). Inasmuch as the information charging defendant with disorderly conduct fails to allege the essential element of either intent or recklessness (see, Penal Law §240.20 [3]), as the People concede, the information is jurisdictionally defective and must be dismissed (see, People v Alejandro, 70 NY2d 133, 135-136; People v Hall, 48 NY2d 927, 928).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.40), order reversed, etc.


text:
    Paul Di Nuzzo et al., Appellants, v Ronald Gardner, Doing Business as Gardner Construction, et al., Respondents.
    Submitted March 26, 1990;
    decided May 8, 1990
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the denial of plaintiffs’ motion to amend their complaint, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Leon Aronsky, Appellant, v Board of Education, Community School District No. 22 of the City of New York et al., Respondents.
    Decided May 10, 1990

      APPEARANCES OF COUNSEL

      Katherine A. Levine and James R. Sandner for appellant.

      Victor A. Kovner, Corporation Counsel (Jean Brandon of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division, insofar as appealed from, should be reversed, with costs, particular "F” of the charges against petitioner dismissed as time barred, and the matter remitted to the Board of Education for reconsideration of the penalty for excessive lateness.

Petitioner, a tenured teacher, brought a motion to dismiss the charges preferred against him by respondent school district on the ground that they were barred by the six-month limitation period in Education Law § 2590-j (7) (c). The statute states, in pertinent part, "[n]o charges shall be brought more than six months after the occurrence of * * * the alleged incompetency or misconduct except where the charge is of misconduct constituting a crime when committed” (emphasis added). Respondents opposed the motion, contending that the facts alleged in the six particulars comprising the charge, if proved, constituted the crime of assault in the second degree as well as the lesser included offense of assault in the third degree.

After a hearing pursuant to Education Law § 3020-a, the three-member panel dismissed the first five particulars as time barred. It sustained the sixth particular, which alleged that petitioner kicked a student in the leg causing him substantial pain, on the ground that the allegations therein, if proven, constituted the crime of assault in the third degree and, therefore, was not barred by the six-month Statute of Limitations. At a subsequent hearing, an excessive lateness charge was consolidated with the sixth particular and, after hearing, a three-member panel determined that respondents had proven their case on both charges and recommended that petitioner be dismissed. The school district voted unanimously to implement the recommendation and petitioner was terminated from the employment of the school district.

Petitioner commenced this proceeding contending that the school district, when attempting to invoke the exception to the six-month Statute of Limitations period in Education Law § 2590-j (7) (c), has the burden of proving each element of the "crime”, which his act allegedly constituted, as those elements are defined by the Penal .Law. We agree.

In Matter of Bott v Board of Educ. (41 NY2d 265, 268), we noted that "disciplinary charges against teachers are not criminal proceedings” and observed that the primary function of the disciplinary proceeding is to determine the fitness of the subject teacher to continue on in their professional responsibilities. Therefore, we held that the excessive use of force against schoolchildren by a teacher may form the basis for disciplining the teacher even where the force employed is not sufficient to constitute a crime (Matter of Bott v Board of Educ., supra, at 268). Nothing in Matter of Bott, however, indicates that Penal Law definitions do not apply to the limitations exception provision found in Education Law § 2590-j (7) (c).

Education Law § 2590-j (7) (c) states that a complaint can be brought after the normal six-month Statute of Limitations period only "where the charge is of misconduct constituting a crime when committed” (emphasis added). Under settled rules of construction, words having a "precise and well settled legal meaning in the jurisprudence of the state” are to be understood in such sense when used in statutes, unless a different meaning is plainly indicated (Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166, 173; McKinney’s Cons Laws of NY, Book 1, Statutes § 233). The term "crime” has a precise and well-settled meaning in the Penal Law. (see, Penal Law § 10.00 [6]) and, therefore, the exception to the six-month Statute of Limitations in Education Law § 2590-j (7) (c) should only apply when the specific facts alleged in the charge, if proven by a preponderance of the evidence, constitute a crime under our Penal Law. In addition, while the evidentiary standards of "beyond a reasonable doubt” imposed in a criminal trial are not applicable in this civil context (see, Matter of Bott v Board of Educ., supra, at 268), requiring proof of the basic elements of a particular crime to invoke Education Law § 2590-j (7) (c)’s extended Statute of Limitations is necessary to provide certainty to Education Law proceedings and to protect the due process rights of tenured teachers (see, Education Law §§ 3020, 3020-a).

Respondents initially alleged that petitioner’s acts constituted assault in the second degree or the lesser included offense of assault in the third degree. The Department of Education panel found that petitioner’s acts constituted the "crime” of assault in the third degree, rejecting petitioner’s claim that the Statute of Limitations in Education Law § 2590-j (7) (c) barred the charges. Before this court, respondents concede that the panel erroneously concluded that petitioner’s acts constituted assault in the third degree because there was no proof of "physical injury” (Penal Law § 120.00) but claim that the proof adduced at the hearing established that petitioner’s acts constituted the "crime” of reckless endangerment in the second degree (Penal Law § 120.20) and accordingly they were entitled to the exception to the six-month Statute of Limitations period. Judicial review of an administrative determination is limited to the grounds invoked by the agency (see, Matter of Parkmed Assocs. v New York State Tax Commn., 60 NY2d 935, 936). We may not sustain the determination by substituting a more appropriate basis now asserted by the Board to satisfy the exception to the Statute of Limitations in Education Law § 2590-j (7) (c) (id.). Consequently, the sixth particular should be dismissed as time barred and the matter remitted for a reconsideration of the penalty as to the lateness charge.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment, insofar as appealed from, reversed, etc.


text:
    The People of the State of New York, Respondent, v Dwayne Pearson, Appellant.
    Argued March 27, 1990;
    decided May 10, 1990
    APPEARANCES OF COUNSEL

      Richard S. Missan and Philip L. Weinstein for appellant.

      John J. Santucci, District Attorney (Howard Meshnick of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified. Defendant’s convictions on the first and third counts for criminal possession of a controlled substance and the sentence thereon should be vacated and those counts dismissed. The order should be otherwise affirmed.

The People’s evidence was legally insufficient to establish defendant’s constructive possession of the cocaine found in the back room of a grocery store where defendant was arrested. Immediately after announcing his presence, the arresting officer observed the defendant and three others exiting a back room of a grocery store and walking briskly towards the front exit. There was contraband in the back room in plain view. There was no evidence that defendant owned, rented or had control over or a possessory interest in the store or the back room (compare, People v Watson, 56 NY2d 632; People v Robertson, 48 NY2d 993; People v Phiefer, 43 NY2d 719). Nor was there proof that defendant was involved in any drug selling or other operation being conducted there (compare, People v Tejeda, 73 NY2d 958; People v Gina, 137 AD2d 555, lv denied 71 NY2d 1027).

The proof that defendant was coming from the back room is insufficient. Presence in a public place does not itself prove dominion and control over contraband discovered there (see, People v Headley, 74 NY2d 858, 859, affg 143 AD2d 937; People v Russell, 34 NY2d 261, 264-265; People v Siplin, 29 NY2d 841; Penal Law § 10.00 [8]; cf., People v Dawkins, 136 AD2d 726, 727 [defendant found standing in kitchen of apartment with vials of cocaine between her feet]). The case of People v Tejeda (73 NY2d 958, supra) cited by the People is distinguishable. There the drugs were found in an apartment in which the defendant was present and the statutory presumption of possession applied (see, Penal Law § 220.25).

Defendant’s remaining contentions pertaining to his conviction on the other counts of the indictment are without merit.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Paul J. Colletti et al., Appellants, v Board of Zoning Appeals of the Incorporated Village of Centre Island, Respondent.
    Submitted April 2, 1990;
    decided May 10, 1990
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Theodore Donaldson et al., Appellants, v State of New York et al., Respondents.
    Submitted April 2, 1990;
    decided May 10, 1990
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as transferred the declaratory judgment action to Supreme Court, Bronx and New York Counties, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Charles Glinton, Appellant.
    Submitted April 2, 1990;
    decided May 10, 1990
   On the court’s own motion, appeal dismissed upon the ground that it does not lie. The order of Supreme Court, New York County, appealed from is considered to be an order denying a motion for reargument of defendant’s motion pursuant to CPL 440.10 to vacate the judgment. Motion for assignment of counsel dismissed as academic.


text:
    In the Matter of Michael P., Appellant, v Diana G., Respondent.
    Submitted April 30, 1990;
    decided May 10, 1990
   Motion for leave to appeal denied. Motion for a stay dismissed as academic. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; New York Pub. Interest Research Group v Governor’s Advisory Commn., 71 NY2d 964).


author: Chief Judge Wachtler.

text:
    The People of the State of New York, Respondent, v Heriberto Guzman, Also Known as Herberto Guzman, Appellant.
    Argued March 23, 1990;
    decided May 1, 1990

      POINTS OF COUNSEL

      Steven A. Feldman and Arza R. Feldman for appellant.

      Robert M. Morgenthau, District Attorney (Joseph J. Dawson and Phyllis A. Monroe of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Wachtler.

The question presented in this case is whether a hearing-impaired person is, by reason of that impairment, disqualified from service as a juror. We agree with the courts below, based on their factual determinations concerning the abilities of the prospective juror and the interpreter assigned to assist him, that the prospective juror’s deafness did not render him "incapable of performing in a reasonable manner the duties of a juror” (Judiciary Law § 510 [3]).

I.

Defendant was tried and convicted on a charge of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) for selling $20 worth of cocaine to an undercover police officer. The events relevant to this appeal, however, occurred before the presentation of any evidence and the central character is one who took no part in the trial. Alec Naiman was, at the time of trial, 29 years old, a student at New York University and a resident of New York County. He was summoned for jury duty and appeared as part of the pool of prospective jurors for defendant’s trial. Mr. Naiman speaks English, reads English and writes English, but he cannot hear. Although he is able to read lips, he was assisted during jury selection by a court-appointed sign language interpreter. He explained that, through lip-reading, "I can see everything about the person, I can feel the tone, I can see the tone, the inflection of the person, but I can never get full verbatim. That is why I prefer to use the interpreter.” Mr. Naiman and the interpreter communicated using signed English, a signing technique that transmits the speaker’s words literally, without any intervening translation. The interpreter assured the court that she was familiar with and would abide by the code of ethics for sign language interpreters and that she would limit her role to that of a "communications facilitator.” Defendant challenged the prospective juror for cause, asserting among other reasons that the juror’s hearing impairment would prevent him from judging the witnesses’ credibility and that the interpreter’s presence in the jury room would inhibit deliberations and violate the confidentiality of the deliberative process. Supreme Court rejected the challenge, concluding that the juror’s deafness would not prevent him from performing the duties of a juror in a reasonable manner and that the concerns about the interpreter’s presence in the jury room were unfounded (see, People v Guzman, 125 Misc 2d 457).

Defendant nevertheless excluded the prospective juror by exercising a peremptory challenge. He exhausted his remaining peremptory challenges before jury selection was complete and thus preserved for appellate review his challenge to the court’s ruling (see, CPL 270.20 [2]; People v Blyden, 55 NY2d 73, 76). As noted, the ensuing trial resulted in a guilty verdict.

The Appellate Division affirmed the conviction, adopting the reasons stated by Supreme Court with respect to the juror qualification issue. That is the only issue raised on appeal to this court.

II.

Under prior law, which required among other qualifications that a juror "[b]e in the possession of his natural faculties” (Judiciary Law former § 504 [3]; § 596 [3]; § 662 [3] [repealed L 1977, ch 316, § 1]), a profound sensory impairment automatically disqualified a juror (see, Matter of Lewinson v Crews, 28 AD2d 111, affd on opn below 21 NY2d 898, appeal dismissed 393 US 13). In 1977, juror qualification requirements were consolidated in Judiciary Law § 510 (L 1977, ch 316, § 2) but, although the language of the statute was otherwise changed, the reference to "natural faculties” was retained (Judiciary Law former § 510 [3]). In 1983, however, that requirement was replaced by the current language of section 510 (3) (L 1983, ch 474, § 1). The statute now provides that a juror must "[n]ot have a mental or physical condition, or combination thereof, which causes the person to be incapable of performing in a reasonable manner the duties of a juror.”

The avowed purpose of the amendment was to end the automatic exclusion of disabled persons by "shifting the emphasis from pre-determination to the capability of the individual to perform the duties of a juror in a reasonable manner” (see, Legislative Mem, an act to amend the Judiciary Law in relation to qualifications for jury duty — purpose of the bill, Bill Jacket, L 1983, ch 474). The amendment was prompted in part by a concern that the exclusion of disabled persons from jury service contravened Federal regulations implementing section 504 of the Rehabilitation Act of 1973 (29 USC § 794), which prohibits handicap-based discrimination in programs and activities that receive Federal financial assistance.

Thus, there is no longer a blanket statutory prohibition against jury service by those, such as the juror in this case, whose hearing is impaired to a profound degree. The question in each case, assuming that the prospective juror is otherwise qualified, must be whether the individual is capable of doing what jurors are supposed to do. The statute requires no more; defendant’s constitutional rights to a fair trial and to trial by jury demand no less.

At a minimum, a juror must be able to understand all of the evidence presented, evaluate that evidence in a rational manner, communicate effectively with the other jurors during deliberations, and comprehend the applicable legal principles, as instructed by the court. In addition, any accommodation that may be necessary to allow the juror to fulfill these duties —in this case, for example, the presence of a sign language interpreter during the trial and deliberations — must not itself interfere with defendant’s fundamental trial rights. In short, although the citizens of this State have a civil right to serve as jurors (see, People v Kern, 75 NY2d 638), this right is conditioned on the individual’s ability to carry out the primary function of the jury — to provide a fair trial. We conclude that the juror’s impairment was not in that respect a disability.

III.

As with most juror qualification questions, the determination whether a hearing-impaired person can provide reasonable jury service in a given case must be left largely to the discretion of the trial court, which can question and observe the prospective juror and the interpreter during the voir dire (see, People v Williams, 63 NY2d 882, 885). Here, in light of the juror’s ability to speak English fluently, read lips and communicate readily in signed English, the trial court concluded that he would "do as fine a job or better than many of the hearing jurors” (People v Guzman, 125 Misc 2d 457, 467, supra). In addition, the court was satisfied that the interpreter was competent and could abide by ethical constraints and the court’s instructions prohibiting participation in the jury’s deliberations.

Defendant contends, nonetheless, that the prospective juror was incapable of performing the duties of a juror in several respects. First, he challenges the juror’s ability to perceive and understand the evidence on the ground that an interpreter might make mistakes in transmitting the testimony to the juror or might miss certain testimony if more than one person speaks at a time. Given the trial court’s findings concerning the abilities of this juror and the interpreter, however, it seems unlikely that mistakes or omissions would occur with significantly greater frequency than they do with hearing jurors, who may be distracted or inattentive at times. Furthermore, material discrepancies between oral testimony and the signed transmission could be detected with the juror’s lip reading ability or would surface during deliberations and could be resolved by having the testimony read back.

Defendant also contends that, even with a signer, the juror could not adequately evaluate oral testimony because he would miss vocal inflections, which provide important clues about a witness’s credibility. We disagree. For one thing, as the trial court noted, a qualified signer is able to convey much about the speaker’s delivery, including the speed, pauses, modulations and other variations (125 Misc 2d, at 466). Furthermore, the juror testified that he was able to use visual clues to determine the tone and inflection of the speaker. More importantly, however, there is no reason to suppose that perception of vocal inflections is a necessary part or a superior method of assessing credibility. Each juror is expected to bring to the courtroom his or her own method of sorting fact from fiction — the same method the juror relies on in conducting everyday affairs. The factors that each juror will rely on to evaluate the trustworthiness of a statement will be a function of that juror’s experience. This juror’s experience has been to make such determinations without vocal clues. Nothing but speculation suggests that this has been a disadvantage. If anything, his apparent success suggests that for him the ring of truth need not be heard to be recognized.

Finally, defendant contends that the juror should have been excluded because he could not serve without a sign language interpreter being present during deliberations. Certainly, the general rule is that nonjurors are not allowed in the jury room during deliberations. This rule protects the jury from outside influence, promotes uninhibited discussion and maintains secrecy. In our view, however, the rule is sufficiently flexible to allow the presence of a signer where that is necessary to accommodate a hearing-impaired juror and where other safeguards are implemented to protect the interests on which the rule is based.

Certain outsiders, such as a bailiff or other court official, may inhibit or influence the jury by their mere presence. They may be perceived as having pertinent legal knowledge or as being aligned with the law enforcement community. In either case, their presence could have an adverse impact on the deliberations. The signer, on the other hand, is a neutral figure, associated only with a fellow juror, and her presence should not have such an effect. Of course, the presence of any nonjuror creates a danger that he or she will participate in the deliberations. But the signer and the jurors can be instructed that such participation is improper and that any breach should be reported to the court. We assume that the jury can be trusted to follow those instructions as they are trusted to follow all others. For similar reasons, the signer should be sworn to keep the confidences of the jury room. This, together with ethical constraints and the signer’s hope of future employment in this capacity should provide sufficient assurance that the signer will not make public the proceedings in the jury room.

For these reasons, we conclude that the trial court did not err in denying defendant’s challenge for cause. The order of the Appellate Division, therefore, should be affirmed.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed.

      . The precise degree of Mr. Naiman’s impairment v/as not explored during the voir dire. Supreme Court’s decision describes him as "profoundly deaf,” and we assume for purposes of our analysis that he is completely unable to hear.

      . We note, therefore, that this appeal does not require us to determine whether a juror dependent on a nonliteral sign language, such as American Sign Language, would be qualified under our statutory requirement that a juror be English-speaking (see, Judiciary Law § 510 [5]).


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v Philip Walker Zinke, Appellant.
    Argued March 23, 1990;
    decided May 3, 1990

      POINTS OF COUNSEL

      Barry D. Leiwant and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Lisa Feiner and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Kaye, J.

The single question before us is whether the general partner in a limited partnership can be found guilty of larceny for misappropriating partnership funds. As a matter of statutory interpretation, we answer that question in the negative, leaving the subject of partnership defalcations to be addressed by any other penal provisions that may be applicable, or by civil litigation, or (if deemed appropriate) by legislative reform.

Defendant, an investment adviser for small pension and profit-sharing funds, was the sole general partner in Stonehenge Investment Notes 1, Ltd., a limited partnership; defendant himself was a significant investor in the firm. In January 1987, after the limited partners and their insurers exhausted their efforts to recoup the funds defendant had allegedly embezzled, defendant was indicted for two counts of grand larceny in the second degree. Specifically, the indictment accused defendant of stealing $1,050,000 from the partnership by writing two checks on its money market account — one for $250,000 in April 1984, the other for $800,000 three months later. Defendant, who had authority under the partnership agreement to borrow firm funds, claimed that these were partnership investments.

At trial, upon the close of the People’s case, defendant moved to dismiss the indictment on the ground that, as a general partner, he was a "joint or common” owner of the partnership’s property and, thus, under the Penal Law could not be prosecuted for larceny even if he had misappropriated partnership property. The court reserved decision and submitted the case to the jury, which convicted defendant of both counts of the indictment. After the verdict, Supreme Court denied defendant’s motion to dismiss, and the Appellate Division affirmed the conviction, concluding that the general partner in a limited partnership could be prosecuted for larceny for stealing partnership property. We now reverse.

Larceny is committed when one wrongfully takes, obtains or withholds "property from an owner thereof’ with intent to deprive the owner of it, or appropriate it to oneself or another (Penal Law § 155.05 [1]). "Owner” is defined in Penal Law § 155.00 (5) as one "who has a right to possession [of the property taken] superior to that of the taker, obtainer or withholder.” This broad definition is immediately qualified by the declaration that "[a] joint or common owner of property shall not be deemed to have a right of possession thereto superior to that of any other joint or common owner thereof.” (Penal Law § 155.00 [5].)

In that partners under the Partnership Law are "co-owners” of firm property (see, Partnership Law §§ 10, 51 [1]), defendant contends that he cannot be charged with having committed larceny as against his limited partners, because all of the partners have an equal right of ownership. The People respond that, under Partnership Law § 51 (2) (a), partners lose their status as joint owners when they divert firm property to their own purposes. Alternatively, the People contend that defendant’s conviction should be sustained because his position as a general partner in a limited partnership is more akin to that of corporate officers and directors, who do commit larceny when they embezzle firm assets, than it is to general partners in other partnerships.

A useful backdrop against which to consider this issue is the historical evolution of the common-law concept of "owner” into its modern statutory form. As with other aspects of larceny, "a proper interpretation of the past can assist us in understanding the technical rules of the crime.” (Fletcher, The Metamorphosis of Larceny, 89 Harv L Rev 469, 474 [1976]; People v Olivo, 52 NY2d 309, 315.)

At common law, no less than today, the requirement that the victim of a theft be an "owner” of the stolen property was an indispensable element of the crime of larceny. The idea behind this requirement was that the property alleged to be stolen had to "belong” to a party other than the accused (see, 2 LaFave & Scott, Substantive Criminal Law § 8.4 [c], at 355 [1986]; cf, Ward v People, 6 Hill 144 [1843] [thief in possession of property that he stole deemed to be its owner where same property was stolen from him]). If the defendant was the owner of the property and entitled to possession at the time of the taking, there could be no larceny. From this principle emerged the rule that if property was owned by two or more persons, none of the owners could commit larceny from the others. In the words of Lord Hale: "Regularly a man cannot commit felony of the goods, wherein he hath a property.” (Hale, History of Pleas of the Crown, at 513 [1683].)

Consistent with this principle was the common-law view that a partner could not be convicted of larceny for the misappropriation of partnership assets; because each partner held title to an undivided interest in the partnership, the theory was that partners could not misappropriate what was already theirs. This view has been widely recognized throughout the common-law world. Even as States began codifying larceny, the common-law. rule continued to flourish. In the absence of a legislative expression to the contrary, courts have ordinarily held that a partner cannot be guilty of larceny for misappropriating firm property, with any such defalcations left for resolution in the civil arena (see, Annotation, Embezzlement, Larceny, False Pretenses, or Allied Criminal Fraud by a Partner, 82 ALR3d 822 [collecting cases]).

Such has been the history of the law in this State: it is surely no accident that the People cite no reported New York case where a partner has been convicted of larceny for taking partnership property. Since 1881, larceny has been defined by statute in terms of a wrongful taking or withholding from the possession of the "owner” or "true owner” (compare, Penal Code § 528 [1] [1881], with former Penal Law § 1290 [1942]; and present Penal Law § 155.00 [5]; § 155.05 [1]). For more than 80 years the Legislature made no effort to define these terms. As in other States, the courts of this State consistently regarded the common-law definition of owner as controlling, concluding that partners could not be prosecuted for stealing firm property (e.g., Holmes v Gilman, 138 NY 369, 377 [1893]; People v Hart, 114 App Div 9, 13; People v Dudley, 97 NYS2d 358, 359-360; People v Dye, 134 Misc 689, 692; see also, People ex rel. Murphy v Crane, 80 App Div 202, 205; People v Herbert, 162 Misc 817, 818-819).

In 1965, the Legislature put to rest all possible doubt on this score. The Model Penal Code, completed in 1962, had rejected the common-law view by defining larceny as stealing "property of another,” which was in turn defined as property "in which any person other than the actor has an interest * * * regardless of the fact that the actor also has an interest in the property.” (Model Penal Code § 223.0 [7].) The purpose of this provision was to permit "a person ordinarily considered the owner of property * * * [to] be convicted of theft * * * Thus, a partner may be convicted of theft of partnership property.” (Model Penal Code § 223.2, revised comment, at 169 [1980].) In enacting the present Penal Law in 1965, however, the New York Legislature chose to reject the Model Penal Code approach and instead codified its own existing rule. This choice was made clear when the Legislature set forth the common-law rule, in so many words, in Penal Law § 155.00 (5): "[a] joint or common owner of property shall not be deemed to have a right of possession thereto superior to that of any other joint or common owner thereof.”

As noted in the contemporary Practice Commentary by Judges Denzer and McQuillan — members of the Commission that drafted article 155 — the purpose of this provision was to continue in force what "has long been the law of New York” that "a partner who appropriates partnership property is not guilty of larceny from his co-partners.” (Denzer & McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 155.00, at 410 [1967].) This court has previously relied upon these very Commentaries as a reliable source for ascertaining the legislative intent underlying Penal Law article 155 (see, e.g., People v Alamo, 34 NY2d 453, 459; People v Eboli, 34 NY2d 281, 285-286), and their conclusion as to the meaning of “owner” is consistent with all other available legislative history (see generally, Staff Notes of Temporary State Commission on Revision of Penal Law and Criminal Code, Proposed New York Penal Law, McKinney’s Spec Pamph, at 351 [1964] [Penal Law § 155.00 generally designed to clarify definition of larceny; no indication intent was to expand or limit then-existing definition of “owner”]; Fourth Interim Report, Temporary State Commission on Revision of the Penal Law and Criminal Code, 1965 NY Legis Doc No. 25, at 38 [Feb. 1, 1965] ["nothing * * * new (in) broad definition of larceny” contained in Penal Law § 155.05 (1)]).

A decision not to extend the larceny statute to partnership disputes — commonly litigated in civil courts — is, moreover, consistent with the Legislature’s reluctance to elevate civil wrongs to the level of criminal larceny (see, Third Interim Report, Temporary State Commission on Revision of the Penal Law and Criminal Code, 1964 Legis Doc No. 14, at 25 [Feb. 1, 1964]). In particular, the Legislature was concerned both about the effects of criminalizing conduct arising out of legitimate business activities — where there can often be close questions as to intent — and the effects of offering defeated litigants in civil suits the opportunity to seek retaliation by criminal actions (People v Foster, 73 NY2d 596, 603-604). Allowing larceny prosecutions against partners is, of course, contrary to those legislative concerns.

Thus, it is clear that, in New York, partners cannot be charged with larceny for misappropriating firm assets. Indeed, while not alone in this view, New York is widely recognized as a prime example of a State that has enacted in statutory form the common-law rule that a partner “could not steal partnership property.” (Model Penal Code § 223.2, revised comment, at 169, n 15; LaFave & Scott, op. cit, § 8.4 [c], at 355, n 38.) Since 1965, "[s]everal states have followed the lead of New York on this point in recent enactments and proposals” (Model Penal Code § 223.2, revised comment, at 170, n 15 [citing statutes of Ariz, Conn, Ore, Tex, 111]), and many other State courts have continued to follow or have recently adopted the New York rule (see, e.g, People v Clayton, 728 P2d 723 [Colo]; Burroughs v State, 406 So 2d 814 [Miss]; Patterson v Bogan, 261 SC 87, 198 SE2d 586; State v Brown, 81 NC App 281, 343 SE2d 553; State v Birch, 36 Wash App 405, 675 P2d 246; Hudson v State, 408 So 2d 224 [Fla App]).

Against this backdrop, the People’s arguments for criminal liability must fail. -

The gist of the People’s first contention is that, under Partnership Law § 51 (2) (a), partners who divert firm property lose their right to possess that property and thus may no longer be deemed "owners” for purposes of the larceny statute (see also, Partnership Law § 98 [1] [d]). This argument, however, is laid to rest by the words and history of Penal Law § 155.00 (5). The qualifying language of Penal Law § 155.00 (5) —enacted long after Partnership Law § 51 (2) (a) — directly contradicts the People’s position. The argument is even flawed as a matter of partnership law. While a partner has no right to possess or use partnership property except for partnership purposes, it does not follow that partners who misappropriate the firm assets cease to be "owners” of that property. Despite a wrongful taking, a dishonest partner may still retain an ownership interest as a "tenant in partnership,” until the partnership winds up (see, Kraus v Kraus, 250 NY 63, 67 [Cardozo, Ch. J.]; see generally, Report of ABA Uniform Partnership Revision Subcommittee, Should the Uniform Partnership Act Be Revised, 43 Bus Law 121, 154 [1987] [recommending that Uniform Partnership Act "be revised to the extent necessary to make it clear that a partner who misappropriates partnership property is guilty of embezzlement”]).

Nor are we persuaded by the People’s second argument— that the well-entrenched rule applying generally to partnerships should be disregarded for general partners of limited partnerships because their position is analogous to that of corporate managers. To be sure, analogies can be drawn between a general partner in a limited partnership and a corporate officer or director. Both, for example, stand in a fiduciary relation to limited partners or shareholders, who do not manage and control the business, and consequently they may have heightened civil responsibilities (see, Birnbaum v Birnbaum, 73 NY2d 461, 465; Lichtyger v Franchard Corp., 18 NY2d 528, 536-537). But for present purposes the essential differences between a general partner in a limited partnership and a corporate manager are far more compelling than any similarities.

Most significantly, limited partnerships and corporations are distinctly different organizational forms in the law of New York. Limited partnerships are governed by the Partnership Law — as they have been since the inception of the Partnership Law — and corporations are governed by the Business Corporation Law, a fact that has pervasive legal and financial significance. Apart from the inclusion of limited partnerships within the Partnership Law, the statute itself at several points specifically fortifies the blood relationship between the two types of partnership. For example, section 10 (2) states that the Partnership Law "shall apply to limited partnerships except in so far as the statutes relating to such partnerships are inconsistent herewith”; section 98 (1) provides that a "general partner shall have all the rights and powers and be subject to all the restrictions and liabilities of a partner in partnership without limited partners,” with enumerated exceptions (see, Reuschlein & Gregory, Agency and Partnership § 264, at 436-437 [1979]). In short, under the law, "limited and general partnerships are identical forms of doing business.” (Executive House Realty v Hagen, 108 Misc 2d 986, 991.)

Many additional distinctions can be drawn between corporations and limited partnerships: unlike corporations, limited partnerships (like all partnerships) have informal agreements among the partners as their basic documents of governance; and the general partner in even a limited partnership, unlike a corporate manager, risks unlimited personal liability in the conduct of firm business (Partnership Law §§26, 98 [1]). However, it is unimportant for the resolution of this appeal to define further distinctions, or indeed to establish any substantive law about corporations or partnerships. The important point is that limited partnerships are partnerships in the eyes of the law of this State, and as such they come within the rule that partners cannot be guilty of larceny when they steal from them.

We therefore disagree with the People that either Partnership Law § 51 (2) (a) or the limited partnership form are cause for departing from our longstanding rule. While the People urge that, for deterrence purposes, the rule should be otherwise — especially for limited partnerships — that is a matter of legislative policy, not a matter for the courts, who are bound not to extend criminal responsibility beyond the fair reach of the statutes.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed.

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

Order reversed, etc.

        See, e.g., Bromberg & Ribstein, Partnership § 3.05 (b), at 50-51 (1988); 2 LaFave & Scott, Substantive Criminal Law § 8.4 (c), at 355 (1986); 3 Wharton’s Criminal Law § 393, at 392 (Torcía 14th ed 1980); Lindley, Partnership, at 548 (10th ed 1935) (English common law).


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Donald Graves, Appellant.
    Argued March 21, 1990;
    decided May 3, 1990

      POINTS OF COUNSEL

      David Epstein for appellant.

      Charles J. Hynes, District Attorney (Keith Dolan, Jay M. Cohen and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

The primary issue in this appeal is whether the trial court properly charged that the "enter or remain unlawfully” element of the crime of burglary may be satisfied by proof that the defendant harbored a secret intent to commit a crime within the premises. We conclude that the instruction was erroneous in that it merged two entirely separate elements— entering unlawfully and acting with the intent to commit a crime. Consequently, since the instruction on burglary was necessary to the jury’s consideration of the felony murder charge against appellant, his conviction on that charge must be reversed.

Appellant was charged with two counts of murder in the second degree (Penal Law § 125.25 [1] [intentional murder]; [3] [felony murder]), burglary in the first degree (Penal Law § 140.30 [1]), and several weapons counts (Penal Law §§ 265.03, 265.02 [4]). The charges arose out of an incident, during the early morning hours of June 18, 1983, in which appellant shot and killed Tracy Smith in a Brooklyn apartment. The primary witnesses against appellant at trial were Smith’s girlfriend, LaShawn Finley, and codefendant Aaron Jones, who was accorded a favorable plea bargain in exchange for his testimony.

Early in the evening, appellant had met Jones, Smith’s cousin, at a candy store, and Jones suggested that the two men go to Finley’s apartment where Smith had been staying. The two men arrived at the building at approximately 5:00 a.m. Jones, who had been in the apartment on numerous occasions, left appellant waiting downstairs while he went upstairs, entered through a closed but unlocked door, and then entered the room where Smith and Finley were sleeping. Jones conversed with Smith, who expressed no surprise in seeing Jones at his bedside so early in the morning. After a brief discussion, Smith gave Jones $10 to purchase beer and "reefer”. Jones then mentioned, "I got my man downstairs with me,” and Smith replied that it was "all right,” which Jones understood to mean that he could bring appellant into the apartment.

When Jones returned to the lobby, he told appellant of his plan to steal a stereo from the apartment. Then, instead of entering the apartment through the unlocked front door, the two men went into a neighboring building, crossed over the roof and entered the apartment through a window. While appellant was in the process of disconnecting the stereo components, Smith and Finley awoke and a fight between Smith and appellant ensued. The melee ended when appellant shot Smith in the chest.

In charging the jury on the essential elements of the crime of burglary, which was the predicate for the felony murder count, the court stated: "[A] person knowingly enters or remains unlawfully in a dwelling when he is aware that he has no license or privilege to enter or remain[ ]. And to remain in a dwelling, regardless of how you entered it, because you have the intent to commit a crime is remaining unlawfully. By that, the law means that he has no right, authority or permission to enter or remain. * * * In this case you have heard testimony that the witness, Jones, testified that he was told by Tracy Smith, who was an occupant of the dwelling, that he could bring up his friend. But, if at the time the entry was made there was an intent to commit a crime, that would be an unlawful remaining.” (Emphasis supplied.) Appellant’s counsel objected to the charge, arguing that the court failed adequately to address the intent issue and improperly explained the element of "unlawfully remaining.” Appellant was found guilty of felony murder, manslaughter in the second degree, which had been submitted as a lesser included offense of the intentional murder count, and one count of criminal possession of a weapon in the third degree.

The Appellate Division affirmed, concluding that "[although the court’s charge on burglary * * * was inaccurate concerning the element of entering or remaining unlawfully * * * [t]he record establishes that even assuming that the defendant had permission to enter the apartment in which the shooting occurred, that permission had been obtained solely through the deception of a codefendant. Entry through deception is the same as entry without license or privilege for purposes of the statute” (149 AD2d 529). We now reverse.

A person may be found guilty of burglary when he "knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein” (Penal Law § 140.30). "A person 'enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so” (Penal Law § 140.00 [5]). In general, a person is "licensed or privileged” to enter private premises when he has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent (see, Barker v Parnossa, Inc., 39 NY2d 926, 928; Vaughan v Transit Dev. Co., 222 NY 79, 82; Restatement [Second] of Torts, §§ 329, 330; Annotation, Maintainability of Burglary Charge, Where Entry into Building is Made with Consent, 58 ALR4th 335, §§ 10, 11). Under the former Penal Law, a person entering with the owner’s consent could nevertheless be guilty of burglary if the consent was obtained by "threat or artifice” (former Penal Law §§ 402, 403, 404, 400 [3]; see, Denzer & McQuillan, Practice Commentary, McKinney’s Cons Law of NY, Book 39, Penal Law § 140.00, at 341 [1967]). Although the current Penal Law does not include analogous language, the lower courts and commentators have concluded that the same rule exists today (People v Griffin, 147 AD2d 897; People v Dupree, 122 AD2d 852; People v Thompson, 116 AD2d 377; People v Hutchinson, 124 Misc 2d 487; People v Ludlowe, 117 Misc 2d 567; Denzer & McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 140.00, at 341 [1967]; see, Restatement [Second] of Torts § 330, comment g, at 175; cf., People v Piro, 121 AD2d 748; see also, Model Penal Code and Commentaries, Official Draft and Revised Comments § 221.1, at 68-70).

Relying on this line of cases, the People contend that the court correctly charged that a person may be found to have entered or remained "unlawfully” if he harbored an intent to commit a crime at the time he entered the premises. We conclude, however, that this contention lacks merit, even assuming the validity of the cited cases, since those cases involve situations where the defendant obtained a license to enter premises through fraud or deception (see, People v Thompson, supra; People v Hutchinson, supra). Here, however, the jury was never instructed to consider whether appellant’s license to enter the apartment was obtained by such means (see, People v Hutchinson, supra, at 490). Thus, the Appellate Division’s conclusion that appellant obtained permission solely through Jones’ deception is not supported by a jury finding or by a review of the record.

The notion of a secret intent to commit a crime at the time of entry always rendering a consented to entry unlawful eliminates the trespassory element, i.e., the unlawfulness of the entry, by making it coextensive with the intent required to establish a burglary. This is not what the case law or the former Penal Law provisions meant when they referred to obtaining entry through artifice or deceit. To the contrary, these references are to situations in which there exists both a hidden intent to commit a crime as well as the additional deceit in obtaining the license to enter the premises, for example, a trick as to an individual’s true identity (see, e.g., People v Griffin, supra; People v Thompson, supra). However, if intent alone were enough, it would convert every act of theft by a housekeeper, social guest or family member from a larceny to a burglary simply upon a showing that the person had intent to commit the crime prior to entering the premises. However, in situations where the "burglar” is known by the owner, there exists no invasion of premises especially likely to terrorize the occupants, and thus is far removed from the classic conception of burglary as a nighttime assault on a dwelling (see, Model Penal Code and Commentaries, Official Draft and Revised Comments § 221.1, at 67). Consequently, we see no valid reason to warrant the automatic transformation of garden variety larceny into the higher graded offense of burglary.

This view of burglary in private premises is consistent with the statutory provisions involving burglary of public buildings, which insulate from liability for that crime "[a] person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public [since he] does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person” (Penal Law § 140.00 [5] [emphasis supplied]; see, People v Powell, 58 NY2d 1009; People v Licata, 28 NY2d 113). Thus, in the case of public buildings, it is clear that the element of absence of license, or unlawfulness of the accused’s presence on the premises, is entirely independent of the element of criminal intent (see, People v Brown, 25 NY2d 374, 376; Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 140.00, at 14, 16 [1975]).

The People maintain that the explicit statutory mandate to disregard the actor’s criminal intent when considering his license or privilege to enter a public building suggests that a contrary rule was intended when private premises are involved. However, the legislative history of this provision does not support the People’s argument. This provision was enacted specifically to overrule People v Sine (277 App Div 908), which held that, under the former Penal Law, a person who enters a department store with the intention of shoplifting is guilty of an unlawful entry, as well as of any crime committed while on the premises (Staff Notes of Commission on Revision of Penal Law and Criminal Code, Proposed New York Penal Law, McKinney’s Spec Pamph, at 347-348 [1964]). Thus, in enacting this provision, the Legislature had in mind a specific problem relative to a class of public places, and there is no reason to infer that a broader rule, with implications for cases involving private premises, was intended.

Finally, even though the trial court referred to appellant’s conduct as an unlawful remaining rather than an unlawful entering, this misuse of terminology does not affect the outcome since appellant either entered or remained unlawfully, but not both (see, People v Gaines, 74 NY2d 358, 362, n 2). Whether appellant’s conduct is viewed as "entering” or "remaining”, the primary focus is still whether the conduct was unlawful. This determination requires an examination of appellant’s license or privilege to be on the premises, which in turn requires some consideration by the jury as to whether appellant had permission to be on the premises.

Here, there was testimony that Smith had given his cousin permission to bring appellant into the apartment. However, the court’s charge required the jury to conclude that appellant was unlawfully on the premises simply if he possessed intent to commit a crime. Thus, the jury could have been misled to believe that burglary consisted of only one element — entering with intent to commit a crime — and might have completely failed to consider the fact that appellant had permission to be in the apartment. Since appellant’s felony murder conviction was predicated on burglary, the felony murder conviction must be reversed and a new trial ordered on that count of the indictment.

Appellant’s remaining contentions are either unpreserved or without merit.

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

Bellacosa, J. (dissenting). I respectfully dissent. The order of the Appellate Division unanimously affirming the judgment of conviction based on a jury verdict finding defendant guilty of felony murder and related counts should be affirmed.

The trial evidence established that defendant Graves, while in the act of burglarizing a Brooklyn apartment, shot and killed Tracy Smith. Defendant’s accomplice, Jones, who was Smith’s cousin, woke Smith up at 5:00 a.m. in the apartment and said, "I got my man [defendant-appellant] downstairs with me.” Smith said, "All right,” which Jones interpreted as permission for Graves and himself to enter the apartment. Jones went downstairs and sojourned with appellant Graves to an adjoining building, crossed over a roof and entered the apartment through a window. Graves’ and Jones’ only intent throughout was to steal a stereo from the apartment and get "high”. Graves was armed with a sawed-off shotgun and Jones carried a .22 caliber revolver.

It is not our privilege or custom to isolate out-of-context portions of a trial court’s instructions to the jury (People v Russell, 266 NY 147, 153). Yet, in this case, appellant successfully presses two sentences out of a very lengthy and detailed set of instructions. As to the burglary elements of the crimes charged, the Trial Justice stated: "And to remain in a dwelling, regardless of how you have entered it, because you have the intent to commit a crime is remaining unlawfully. * * * But, if at the time the entry was made there was an intent to commit a crime, that would be an unlawful remaining. ” (Trial transcript, at 358-359 [emphasis added].)

My disagreement with the reversal of this conviction rests on a diametrically opposed perception of the nature of this case, its evidence and the relevance of the isolated portions of the instructions to the jury. First, the trial court did not merge the unlawful entry element of the burglary charge, the predicate felony on which the murder conviction pivots, with the intent element. Rather, the instruction, read reasonably in context and in relationship to the evidence adduced, alerted the jury that the same fact — defendant’s unlawful entry into the apartment through a window, carrying a shotgun, and with intent to commit an armed theft — could be used to establish more than one element of the crime charged. Second, the majority independently concludes and suggests the jury might have speculated that defendant did not gain entry to the apartment through lawful social invitation, but rather through unlawful deception. However, the undisturbed findings, the inescapable inferences and the cogent evidence support the conclusion that defendant was not granted "permission,” even through the "good offices” of his codefendant, to enter an apartment by crossing a roof, climbing through a window, armed with a shotgun, and intending from the outset to steal the victim’s stereo. From those evidentiary facts, the jury was entitled to conclude under correct instructions that Graves’ entry was plainly unlawful, irrespective of any deception by Jones. This scenario hardly depicts a "garden variety larceny” (majority opn, at 22) with Graves and Jones harboring "secret” intents (majority opn, at 21). Frankly, to swallow the theory that the victim "invited” this defendant into the apartment under these circumstances on the basis of an ambiguous conversational exchange with his cousin is ludicrous and adds insult to the fatal injury. To embellish the tableaux with the notion that Jones believed he and Graves were "invited” in under these circumstances also defies belief. Graves’ fable ends with our being asked to credit his tale that he and Jones RS.V.P.’d the "invitation” by climbing across a roof and through a window, only to shoot dead the host while stealing his stereo.

Defendant focuses his primary claim on the argument that his undisclosed intention to commit a crime once inside the apartment does not qualify as unlawful deception to gain entry and that the trial court’s instruction in that connection requires reversal. The majority appears to accept this out-of-context and theoretical construct predicated on a fact pattern clearly contrary to the evidence. I reject the defendant’s artifice for the reasons already expressed, and because the preoccupation with the element of unlawful remaining is, at worst, mere surplusage to what this case is really all about. The Trial Justice, for example, concluded the lengthy technical instruction on the elements of burglary with this disjunctive admonition: "You will notice that the statute says 'Unlawful entry or remaining’ ”. (Emphasis added.)

There is irrefutably on the proof, as found by the jury and affirmed by the Appellate Division, an unlawful entry and an intent to commit a crime in the apartment. Satisfaction of these two elements should be enough to affirm the conviction because they are what constitute the predicate crime charged here in order to convict of murder. The reductio ad absurdum illustrations about convicting all sorts of innocent guests, employees and family members on the theory and instructions in this case are just what the Latin phrase connotes — Cassandra-like absurdities. They cannot, should not, and will not happen based on the elementary principles of this case applied to the evidence adduced, and should not block us from coming to the correct result in this case.

The trial court’s instruction, it respectfully seems to me, is being strained out of its natural context and range to imply that the presence of the element of "intent to commit a crime therein” itself and solely converted a speculatively privileged entry to the private dwelling into an unlawful one and, thus, into a burglary — either in this case or as a general proposition. But the trial court merely instructed the jury, awkwardly perhaps, that the same evidentiary facts, i.e., defendant’s intent to commit an armed theft proven by direct evidence, could inferentially support more than one element of the crime charged in what, except for the fatal outcome, could be viewed as an almost "Gang That Couldn’t Shoot Straight” unlawful entry. Awkward articulation is not reversible error, and precious parsing of selected phrases in jury instructions is not the test we have used; rather "[t]he test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision.” (People v Russell, 266 NY, supra, at 153; People v Goodfriend, 64 NY2d 695, 697.)

I do not believe there can be any question that test was met in this case. It is the height of supposition to attribute to this jury a misunderstanding of the essence of this case and of the law principles governing its resolution.

A reasonable assessment of this record and the governing authorities should result in an affirmance, as I perceive no reversible error and what error there might be, if any, is of the most harmless, innocuous variety.

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

Order reversed, etc.

      . The jury did not reach the burglary count, since it had been instructed not to do so if it found appellant guilty of felony murder.

      . The charge in this case was much more than simply "[ajwkward articulation” as suggested by the dissent (dissenting opn, at 26). To the contrary, the court’s instruction was clear that entering with intent to commit a crime constitutes "remaining unlawfully” — one of the two separate elements of burglary. Consequently, even applying the test articulated by the dissent, we conclude that the jury would not " 'gather from [the court’s charge] the correct rules which should be applied in arriving at decision.’ ” (Dissenting opn, at 26.)
      In addition, the dissent posits that there are "undisturbed findings” and "inescapable inferences” that appellant was not granted "permission” to enter the apartment (dissenting opn, at 24). However, since the jury was never instructed by the trial court to consider whether appellant had permission to enter the apartment, or if such permission was unlimited or conditional, there are no "findings” which are "undisturbed.” Finally, the dissent suggests that Jones had intent to commit a crime at the moment he obtained permission from Smith to enter the apartment, thereby receiving a license through trick or misrepresentation (see, People v Thompson, 116 AD2d 377, 380). The jury was not, however, instructed to consider this question. Thus, this "factual finding” by the dissent is based on pure speculation as to what a properly instructed jury might have found, and this record does not support such a conclusion.


text:
    David S. Hall, Appellant, v United Parcel Service of America, Inc., et al., Defendants, and Doyle Detective Bureau, Inc., et al., Respondents. (Action No. 1.) David S. Hall, Appellant, v United Parcel Service of America, Inc., et al., Respondents. (Action No. 2.)
    Argued March 28,1990;
    decided May 8, 1990

      POINTS OF COUNSEL

      E. Robert Fussell for appellant

      Thomas E. Lenweaver for Doyle Detective Bureau, Inc., and another,

      E. Robert Fussell for appellant in action No. 2.1.

      Thomas R. Smith for respondents in action No. 2. I.
   OPINION OF THE COURT

Titone, J.

In this consolidated appeal, the primary issue is whether a person who has been pressured into resigning from employment after "failing” a polygraph test may maintain an action for damages against an examiner who allegedly conducted the test in a negligent manner. Also at issue is whether this plaintiff is entitled to be paid a bonus under the specific terms of his employer’s bonus plan. We hold that neither of plaintiff’s claims is legally viable and that both were properly dismissed.

Plaintiff had been employed by defendant United Parcel Service (UPS) since 1972. In the fall of 1981, two bags containing money were determined to be missing from the UPS office in Rochester, where plaintiff was the center manager. UPS retained defendant Doyle Detective Bureau, Inc., to assist in the investigation of the missing bags. As part of this investigation, several UPS employees, including plaintiff, were subjected to polygraph lie detector tests administered by the individual defendants Griffin and Mahoney. According to Griffin’s and Mahoney’s reports, plaintiff, who was tested on two separate occasions, showed considerable stress and deception during both tests. Griffin’s report concluded that plaintiff was "directly involved in theft.” After having been apprised of the test results, plaintiff was allegedly forced to resign on November 13, 1981.

Before these events took place, plaintiff had been approved for and scheduled to receive a Participation Notice for a bonus, payable in the early spring of 1982, to cover the fiscal period ending on September 30, 1981. The Participation Notices were not distributed, however, until November 15, 1981, two days after plaintiff had left the company. Because its written bonus plan expressly provided that bonus rights accrue upon receipt of a Notice of Participation, UPS took the position that plaintiff, who was not given a Notice, was not entitled to receive a bonus.

In May of 1983, plaintiff commenced an action against UPS, Doyle and Griffin, among others, seeking damages for his lost employment and mental anguish (action No. 1). On defendants’ motion for summary judgment, which was made after discovery was had, the trial court dismissed the causes of action based on defamation, intentional infliction of emotional distress and breach of an alleged oral agreement, but left standing the two remaining causes of action, which were asserted against Doyle and Griffin and were based on the alleged negligent administration of the lie detector tests. The court also denied a cross motion by plaintiff to amend his complaint by adding a new cause of action for recovery of the 1980-1981 bonus plaintiff allegedly should have received, concluding that the claim lacked substantive merit. This decision was not fatal to plaintiff’s claim, however, since plaintiff had previously commenced a second action against UPS on January 6, 1988, claiming entitlement to a bonus (action No. 2). This second action was disposed of in an order of dismissal dated October 4, 1988, which was predicated in part on the court’s earlier conclusion that the claim lacked merit and in part on its determination that the claim was time barred.

On plaintiff’s appeal in action No. 2, the Appellate Division affirmed, without opinion. On appeal by defendants Doyle and Griffin in action No. 1, the Appellate Division modified the trial court’s order by dismissing the remaining negligence causes of action against those defendants. The court held that Doyle owed no duty of care to plaintiff because he was not "part of a limited group whom Doyle should have expected to rely upon its report.” (151 AD2d, at 985.) Additionally, the court held, General Business Law § 74 (1) (b), which permits civil recovery for "wilful, malicious and wrongful act[s]” of licensed private investigators, does not give rise to a cause of action for negligent investigation. Following the Appellate Division’s decisions, this court granted plaintiff leave to take a further appeal in both actions.

Action No. 1

Resolution of the appeal in action No. 1 requires us to decide whether a person who has been made the subject of a polygraph lie detector test may maintain a negligence action against the party who conducted the test. The parties have focused on the question of whether plaintiff may maintain the action even though defendants Doyle and Griffin were retained by UPS, and both sides have made a number of arguments concerning the applicability of the line of cases represented by Ossining Union Free School Dist. v Anderson LaRocca Anderson (73 NY2d 417), Credit Alliance Corp. v Andersen & Co. (65 NY2d 536), White v Guarente (43 NY2d 356), Glanzer v Shepard (233 NY 236) and Ultramares Corp. v Touche (255 NY 170). This line of cases, however, specifically concerns the extent to which a party who has negligently misrepresented facts may be held liable to those who have relied to their detriment on the misrepresentations. The cited cases are of limited analytical utility in resolving a case such as this, where the injury arose not as a result of the injured’s reliance on negligently made statements but rather as a result of the direct impact that those statements had on the injured party’s business and personal life. In that regard, this case is more analogous to one in which the test subject suffered physical injury by virtue of a negligently administered test than it is to the fact pattern presented in Ossining and its predecessors (cf., People v Hamilton, 125 AD2d 1000 [civil damage suit on behalf of women victimized by "unnecessary touching” and unnecessary, sexually suggestive questioning by polygraph examiner]).

Indeed, if plaintiff had sustained physical injury from the test rather than the less tangible reputational injury he sustained, there would be no question of his right to maintain a cause of action against the examiner, notwithstanding the absence of a relationship of privity. The problematic aspect of this case is not the absence of a contractual relationship between plaintiff and defendants, but rather the nature of the harm for which plaintiff seeks a remedy.

Injuries to an individual’s personal and professional reputation such as the injuries alleged here have long been compensated through the traditional remedies for defamation. Of course, this plaintiff cannot avail himself of those remedies, since they are circumscribed by rules of qualified privilege that, in closely analogous circumstances, foreclose recovery in the absence of a showing of malice or other culpable conduct beyond the level of ordinary negligence (see, Kasachkoff v City of New York, 68 NY2d 654; Sondak v Dun & Bradstreet, 39 Misc 2d 13 [applying qualified privilege to credit reporting service’s activities]; Houston v TRW Information Servs., 707 F Supp 689 [same]; cf, General Business Law § 74 [1] [b]). Plaintiff’s recovery thus depends upon our willingness to recognize a new tort cause of action, or to adopt substantial modifications of the existing defamation remedies. Whether we should do so by recognizing a remedy in tort is a question that is best resolved by reference to the relevant judicial and social policy considerations.

As to the social considerations, there can be little doubt that the use and abuse of lie detector tests in the workplace is a significant matter meriting government attention. On the one hand, there is a substantial practical demand for this technology in the private employment marketplace. The use of the polygraph in private industry has increased dramatically in the past decade (see, Note, Lie Detectors in the Workplace: The Need for Civil Actions Against Employers, 101 Harv L Rev 806, n 1 [hereinafter Note, Lie Detectors in the Workplace]). By 1987, it was estimated that approximately two million lie detector tests were being administered annually (Senate Report No. 100-284, reprinted in 1988 US Code, Cong & Admin News 726, 728 [hereinafter Senate Report]).

Reasons have been advanced for curtailment or regulation of these tests. Despite their widespread use, serious questions persist about the accuracy and scientific validity of these tests (see, id., at 728-731; Note, Lie Detectors in the Workplace, op. cit., at 807-813; Scientific Validity of Polygraph Testing: A Research Review and Evaluation — A Technical Memorandum, Washington, D.C.: US Cong, Office of Technology Assessment, OTA-TM-H-15, Nov. 1983, at 102). Indeed, a committee of the American Medical Association recently concluded that the polygraph is capable of providing evidence of honesty or deception by the test subject in a percentage of cases that is statistically only slightly better than pure chance (see, Senate Report, op. cit., at 728-730).

Further, the potential for substantial harm resulting from the misuse of lie detector tests has been recognized. The indiscriminate use of questionable test results can permanently tarnish the reputation of the test subject and lead to unjust loss or denial of employment (see, id., at 734). The potential for mischief is especially acute in the employment arena, because, given the high rate of employee theft in some industries, employers will often prefer to err on the side of caution by terminating employees, or not hiring applicants, where a lie detector test, accurate or otherwise, raises questions about the employee’s honesty (see, Note, Lie Detectors in the Workplace, op. cit., at 812). Additionally, the false aura of validity generated by these tests’ supposed scientific basis may lead employers to repose undue confidence in their results.

The conclusion that some governmental oversight and regulation may be desirable, however, does not necessarily lead to the further conclusion that a new tort cause of action should be established to address the problem. As we have observed in other contexts, some social problems "are best and more appropriately explored and resolved by the legislative branch of our government” (Murphy v American Home Prods. Corp., 58 NY2d 293, 302), particularly where, as here, there are competing interests at stake. In such circumstances, "[t]he Legislature has infinitely greater resources and procedural means to discern the public will, to examine the variety of pertinent considerations, to elicit the views of various segments of the community that would be directly affected * * * and to investigate and anticipate the impact of imposition of such liability.” (Id.) In the analogous area of credit reporting, the problems of negligence and misuse have been addressed through legislation at the Federal and State levels (see, Federal Fair Credit Reporting Act, 15 USC § 1681 et seq.; Fair Credit Reporting Act, General Business Law art 25; see especially, General Business Law §§ 380-/, 380-m [civil liability for willful and negligent noncompliance]).

Furthermore, our State Legislature has not been completely silent on the question of lie detector tests and has adopted some limited remedial measures. For example, New York prohibits credit reporting agencies from retaining records of any lie detector tests that an individual may have taken (General Business Law § 380-j [g]). Additionally, New York has long provided for civil recovery in cases involving "wilful [or] malicious” misconduct by licensed detective agencies (General Business Law § 74 [1] [b]). Under Labor Law §§ 733-739, psychological stress evaluators, which purport to measure a subject’s truthfulness "on the basis of vocal fluctuations or vocal stress” (Labor Law § 733 [4]) are banned from the workplace, and civil damages are available to those injured by their use. Significantly, no similar measure has been adopted by our State Legislature in relation to conventional polygraph tests, which are based on fluctuations in blood pressure, pulse beat, breathing and galvanic skin responses (see, Scott v Transkrit Corp., 91 AD2d 682; Nothdurft v Ross, 104 Misc 2d 898, 900, affd 85 AD2d 658). The Legislature’s choice to regulate the use of some lie detector devices in certain limited contexts suggests that this court should stay its own hand and refrain from crafting additional remedial measures (see, Sheehy v Big Flats Community Day, 73 NY2d 629, 635-636).

Finally, to the extent that there is a perceived need for more extensive government intervention, that need has been filled by the recently adopted Federal Employee Polygraph Protection Act of 1988 (29 USC § 2001 et seq.). Enacted in 1988 (Pub L 100-347, 102 US Stat 646), this comprehensive legislation prohibits private employers from "directly or indirectly * * * requiring], requesting], suggesting], or causing] any employee or prospective employee to take or submit to any lie detector test” or even making use of the results of such a test (29 USC § 2002 [1]), except in certain narrowly defined circumstances. Violations of the statutory prohibition may not be waived and are punishable by civil penalties, as well as injunctions and private actions for damages, which may be commenced in either Federal or State court (29 USC § 2005). In situations such as that presented in this case, where "an ongoing investigation involving economic loss” to the employer is involved, polygraph tests may be conducted, but only if certain conditions, including a showing of "reasonable suspicion”, are satisfied (29 USC § 2006 [d]). Even in these cases, however, the test results may not be used as a basis for adverse action unless there is "additional supporting evidence”, the examinee is afforded certain specified procedural and substantive rights and the examiner has the delineated qualifications (29 USC § 2007 [a] [1]; [b]-[c]). The statute also imposes stringent restrictions on the disclosure of polygraph test results (29 USC § 2008).

Although Congress made clear that the Federal statutory scheme was not intended to preempt more restrictive State legislation (29 USC § 2009), this detailed, far-reaching act greatly diminishes the strength of the arguments for recognizing a new tort remedy at the State level. Most of the concerns of those who have urged the creation of such a remedy (see, e.g., Note, Lie Detectors in the Workplace, op. cit.) have been addressed, directly or indirectly, by the Federal statute. It is true that the statute, which focuses on restricting the very use of these tests, does not squarely address the discrete problem of their negligent administration (but cf., 29 USC § 2007 [c] [regarding examiner’s qualifications]). However, by imposing such stringent rules for the use and disclosure of polygraph test results, the Federal statute will presumably curtail the potential for harm to innocent employees that the use of these tests, negligent or otherwise, entails.

For these reasons, and under the circumstances of this case, we decline to recognize a cause of action based on plaintiffs allegations that the polygraph tests he took were negligently administered. Accordingly, plaintiff cannot maintain a claim against defendants Doyle and Griffin, and the complaint against them was properly dismissed.

Action No. 2

Contrary to the conclusion of the trial court, plaintiffs claim for payment of the 1980-1981 bonus, which was not formally interposed until he served a new summons and complaint on UPS in January of 1988, is not time barred. A claim of this nature must be deemed to have accrued on the date that the plaintiff claims the breach of the employer’s alleged obligation occurred, without regard to whether the claim has merit or whether the claimant has even accurately identified the event which would have triggered his rights, if such rights existed.

The gist of plaintiffs claim in this case is that, notwithstanding his failure to receive a Participation Notice in November of 1981, plaintiff should have been given the bonus for which he had previously been approved at the scheduled time, i.e., February of 1982. Because his claim was framed in this manner, it must be deemed to have accrued not when the Participation Notice was withheld, but rather at the time when the distribution would otherwise have been made, since that was the point at which, according to plaintiffs allegations, defendant UPS breached its duty to him. Thus, service of the summons and complaint on January 6, 1988, was timely.

Plaintiffs claim must ultimately fail, however, because, as the trial court held, it lacks substantive merit. An employee’s entitlement to a bonus is governed by the terms of the employer’s bonus plan (see, Bayer v Oxford Univ. Press, 270 App Div 586, affd 296 NY 780).

At common law, "a corporation proposing to give a sum for the benefit of any person or any set of persons has the right to fix the terms of his bounty, and provide under what circumstances the gift shall become vested and absolute.” (McNevin v Solvay Process Co., 32 App Div 610, 612, affd 167 NY 530.) Here, the UPS bonus plan was described in informal memorandum to the upper-level managers responsible for selecting participants. After an initial statement that "[a] new determination of membership [in the plan] is made each year without regard to membership in prior years”, the memorandum went on to state that "[membership in the Plan for any year becomes effective only when the member receives a UPS Managers Incentive Plan Participation Notice” (emphasis supplied). Further, "[n]o part of the UPS Managers Incentive Plan earnings accrues to or becomes a right of any individual member until he is given a Participation Notice.”

Thus, contrary to plaintiffs contention that the delivery and receipt of a participation notice were mere "ministerial acts,” the explicit terms of the employer’s plan made those events crucial to the vesting of the employee’s bonus payment. Accordingly, although plaintiff had been approved for a bonus payment before he left the company, his employer retained the right not to make any such payment.

Accordingly, in actions No. 1 and No. 2, the orders of the Appellate Division should be affirmed, with costs.

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

Orders affirmed, with costs.

       Plaintiff did not bear his burden of proving that defendant Doyle is collaterally estopped from litigating this issue because of a prior judicial ruling in a case arising out of the same theft investigation involving a different UPS employee. It is true, as plaintiff notes, that in Zampatori v United Parcel Serv. (125 Misc 2d 405), the court denied a motion for summary judgment by Doyle, without prejudice to renewal, after concluding in principle that the plaintiff in that case could maintain an action against Doyle for negligent administration of a polygraph test, even in the absence of privity. However, plaintiff Hall’s bare allegation in this case that "a verdict was [subsequently] rendered against Doyle” in the Zampatori action leaves unclear whether a final judgment necessarily encompassing this specific determination ultimately resulted — a matter which Hall is obligated to prove (see, Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11, 19; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 73; see generally, 5 Weinstein-Korn-Miller, NY Civ Prac f 5011.23, at 50-151 — 50-153; If 5011.26, at 50-168).