author:
Jasen, J.
      Chief Judge Cooke

text:
    Leona Holt, Respondent, v County of Tioga, Appellant.
    Argued May 4, 1982;
    decided June 15, 1982

      POINTS OF COUNSEL

      Peter J. Walsh and Nathaniel F. Knappen for appellant.
    I. Tioga County Local Law No. 2 of 1978 is authorized by the Municipal Home Rule Law and is not in express conflict with general State law. (Fullerton v City of Schenectady, 285 App Div 545, 309 NY 701; Lighthouse Shores v Town of lslip, 41 NY2d 7; Belle v Town Bd. of Town of Onondaga, 61 AD2d 356; New Rochelle Trust Co. v White, 283 NY 223; Jewish Consumptives’ Relief Soc. v Town of Woodbury, 230 App Div 228, 256 NY 619; People v County of Westchester, 282 NY 224; McMillen v Brown, 20 AD2d 531; Matter of Reuss v Katz, 43 Misc 2d 921; People v Del Gardo, 1 Misc 2d 821.) II. The State has not evinced an intent to pre-empt the field of prior notice requirements for counties. (Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327,12 NY2d 998; Matter of Marino v Town of Ramapo, 68 Misc 2d 44; Pennsylvania v Nelson, 350 US 497; Hines v Davidowitz, 312 US 52; People v Broady, 5 NY2d 500, 361 US 8; People v Lewis, 295 NY 42; People v Cook, 34 NY2d 100.) III. A finding of unconstitutionality would vitiate other legislative enactments. (Marcus Assoc. v Town of Huntington, 45 NY2d 501; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Childs v Childs, 69 AD2d 406.)

      Peter H. Bouman and James P. O’Brien for respondent.
    I. Defendant’s prior written-notice ordinance is inconsistent with general State law and is therefore unconstitutional. (Matter of Wilson v Board of Supervisors of County of Oneida, 152 Misc 645; Little v County of Suffolk, 73 AD2d 663; Lopes v Rostad, 45 NY2d 617; Thomas v Consolidated Fire Dist. No. 1 of Town of Niskayuna, 50 NY2d 143; MacMullen v City of Middletown, 112 App Div 81, 187 NY 37; Fullerton v City of Schenectady, 285 App Div 545; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; MacPherson v Buick Motor Co., 217 NY 382.) II. Local Law No. 2 denies citizens equal protection of the law. III. Local Law No. 2 deprives citizens of due process of law. (Snyder v Massachusetts, 291 US 97.) IV. Tioga County’s Local Law is not authorized by section 50-e of the General Municipal Law. (Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362.)
   OPINION OF THE COURT

Jasen, J.

The issue raised by this appeal is whether a local law which makes prior written notification of a dangerous condition or defect a condition precedent to maintaining a suit against the county conflicts with the general State law which imposes liability on the county for injuries caused by unsafe or improperly maintained highways so that it must be declared unconstitutional.

Plaintiff Leona Holt brought this action against the County of Tioga to recover actual and punitivé damages for injuries she sustained in a one-vehicle accident on a county-owned highway. In her complaint, she alleged that the shoulder of the highway was defective because it was lower than the paved portion of the highway and that this defect caused her to lose control of her truck and strike a tree. She also alleged that the county failed to inspect or repair the road and was thus grossly negligent.

The county raised, in its answer, the affirmative defense that the plaintiff did not plead or prove compliance with Tioga County Local Law No. 2 of 1978 and moved to dismiss the complaint. Plaintiff moved for a day certain and in response to the defendant’s motion to dismiss, plaintiff asserted that she had complied with Local Law No. 2, that the county should be estopped from raising the issue and that the local law was unconstitutional. Special Term granted plaintiff’s motion tq the extent of setting a trial date and denied, without comment, defendant’s motion to dismiss.

The county brought an appeal from' that order. The Appellate Division ordered the affirmative defense in question struck on the ground that Local Law No. 2 was unconstitutional. In so holding, the Appellate Division stated that although there is a strong presumption that local laws are constitutional, a local law cannot stand if it conflicts with a general law passed by the State Legislature. Because section 139 of the Highway Law, a general law, imposes liability on counties without reference to any prior notification requirements, the Appellate Division reasoned that any local law which imposes a condition precedent is inconsistent and, thus, unconstitutional. The Appellate Division granted leave to appeal to this court on a certified question so that we might consider whether the Appellate Division correctly found Local Law No. 2 to be unconstitutional. For the reasons that follow, we hold Local Law No. 2 to be constitutional.

When a locality exercises the legislative power delegated to it by the State Constitution, there is an “exceedingly strong presumption” that the local law enacted is constitutional. (Lighthouse Shores v Town of lslip, 41 NY2d 7, 11.) In order to defeat that presumption of validity, a party must show that the local law in question is inconsistent with either provisions of the State Constitution or with a general law enacted by the State Legislature.

Local governments, including counties, are authorized by the State Constitution to “adopt and amend local laws * * * relating to * * * [t]he presentation, ascertainment and discharge of claims against it [or] [t]he acquisition, care, management and use of its highways, roads, streets, avenues and property.” (NY Const, art IX, § 2, subd [c], par [ii], els [5], [6].) This constitutional authority is implemented by identical provisions in subdivision 1 of section 10 of the Municipal Home Rule Law. Section 3 of article IX further provides that: “Rights, powers, privileges and immunities granted to local governments by this article shall be liberally construed.” (NY Const, art IX, § 3, subd [c].) But section 2 of article IX also restricts the power granted local governments by providing that only laws which are “not inconsistent with the provisions of this constitution or any general law” may be enacted. A general law is defined by article IX (§ 3, subd [d], par [1]) as one “which in terms and effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages.” Thus, the specific question raised by this appeal is whether the local law in question is inconsistent with either the Constitution or any general law. Since this appeal arises on a certified question, our review is limited to whether Local Law No. 2 is unconstitutional, as the Appellate Division found, because its provisions are inconsistent with section 139 of the Highway Law.

Local Law No. 2 provides in pertinent part that: “No civil action shall be maintained against the County of Tioga * * * for damages or injuries to persons or property sustained by reason of any highway, bridge or culvert being defective, out of repair, unsafe, dangerous or obstructed unless written notice of such defective, unsafe, dangerous or obstructed condition of such highway, bridge or culvert was actually given to the County Clerk or County Superintendent of Highways, and that there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of”.

Section 139 of the Highway Law, a general law because it applies to all counties in the State, provides that when “a county has charge of the repair or maintenance of a road, highway, bridge or culvert, the county shall be liable for injuries to person or property * * * but the county shall not be liable in such action unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law”. The notice procedure to be used in maintaining a civil action against the county is thus controlled by section 50-e of the General Municipal Law.

That statute requires that in a tort action a notice of claim must be filed within 90 days of when the claim arose. Subdivision 4 of section 50-e further provides: “Requirements of [this] section [are] exclusive except as to conditions precedent to liability for certain defects or snow or ice. No other or further notice * * * shall be required as a condition to the commencement of an action or special proceeding * * * provided, however, that nothing herein contained shall be deemed to dispense with the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway * * * where such notice now is, or hereafter may be, required by law, as a condition precedent to liability”.

Reading these statutes together, we do not find Local Law No. 2 to be inconsistent with section 139 of the Highway Law. Local Law No. 2 speaks to the notification required as a condition precedent to maintaining a civil action against a county for negligent maintenance of county highways. Section 139 of the Highway Law has the sole effect of imposing liability on counties for injuries caused by unsafe or improperly maintained highways. As to the procedure necessary to commence an action, section 139 of the Highway Law defers to section 50-e of the General Municipal Law. Subdivision 4 of section 50-e of the General Municipal Law specifically allows for the enactment of prior notification statutes and requires compliance with such laws. There is no indication in the statutory language that the Legislature in any way intended to limit that provision’s applicability. The statutory language makes no distinction between general laws and local laws; it must be read to apply alike to all laws enacted by any legislative body in this State. Similarly, section 139 of the Highway Law contains no provision that can be read to limit the applicability of section 50-e of the General Municipal Law or to bar local laws which impose conditions precedent to maintaining an action against a county. Thus, it cannot be said that the Legislature intended to preclude counties from enacting prior notification statutes when, pursuant to section 139 of the Highway Law, it imposed liability on the counties.

While it is true that prior notification provisions such as Local Law No. 2 are most often designed to bar claims which would otherwise be authorized, that alone is not adequate to overcome the presumption of constitutionality. It cannot be said that statutes enacted under this grant of legislative authority are inconsistent with general laws which merely impose liability but do not speak to the presentation of claims. Rather, it appears that by not specifically addressing the question of prior notification, the Legislature deferred to the judgment of local governments.

In the past, when this court has considered the constitutionality of other prior notification statutes, which were also enacted pursuant to similar delegations of legislative authority, we have found them to be constitutional. In Fullerton v City of Schenectady (285 App Div 545, affd 309 NY 701, app dsmd 350 US 980), this, court affirmed, without opinion, the order of the Appellate Division which dismissed plaintiff’s complaint on the ground that the failure to comply with the City of Schenectady’s prior notification statute meant that the action could not be pursued. In so holding, the Appellate Division found that Schenectady’s prior notification law was authorized by the home rule amendment to the State Constitution, and by both the City Home Rule Law and the Second Class Cities Law. The decision in Fullerton (supra) was based, in part, on this court’s decision in MacMullen v City of Middletown (187 NY 37) in which we held a prior notification provision in a municipal charter to be a valid exercise of legislative power. We see no reason to deviate from those holdings. In this case, as in those, the Legislature has deferred to the localities to determine what notice is required. The County of Tioga, which “exercise[s], by delegation, a portion of the sovereign power” (MacMullen v City of Middletown, supra, at p 41), acted within its constitutionally mandated powers in enacting Local Law No. 2. Neither section 139 of the Highway Law nor section 50-e of the General Municipal Law indicate any intention by the Legislature to restrict the county’s constitutionally delegated powers or to bar prior notification statutes.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, and the second affirmative defense should be reinstated. The question certified should be answered in the negative.

Chief Judge Cooke

(dissenting). A reading of the pertinent constitutional and statutory provisions and case law reveals nothing that authorizes the County of Tioga’s enactment of Local Law No. 2 of 1978. Therefore, I respectfully dissent.

The majority finds two constitutional bases for validating the local law. First, the majority relies on a local government’s authority to legislate as to “[t]he presentation, ascertainment and discharge of claims against it” (NY Const, art IX, § 2, subd [c], par [ii], cl [5]). Reading this in conjunction with subdivision 4 of section 50-e of the General Municipal Law, the majority concludes that Local Law No. 2 is a proper procedural rule. Second, the majority finds the ordinance valid under the county’s power to legislate as to “[t]he acquisition, care, management and use of its highways, roads, streets, avenues and property” (NY Const, art IX, § 2, subd [c], par [ii], cl [6]).

Initially, the nature of laws such as Local Law No. 2 should be determined — i.e., does the ordinance affect procedural or substantive rights. The unavoidable conclusion is that the prior-notice law here is a substantive rule. The ordinance’s entire thrust is to remove from the county the threat that it may be found to have had constructive notice of a defect. As this court noted in discussing the purpose of a similar law in MacMullen v City of Middletown (187 NY 37, 41), “The fact of knowledge should no longer be dependent upon inferences from the evidence of circumstances; nor the liability of the municipality be left to a determination reached upon an indulgent construction of the legal rule as to actual notice.”

The conclusion that the local law is substantive is buttressed by a consideration of section 50-e of the General Municipal Law. A notice of claim under that section is “a condition precedent to the commencement of an action or special proceeding” (General Municipal Law, § 50-e, subd 1, par [a]). And such notice may be served after the action is commenced if, among other concerns, “the delay in serving the notice of claim [has not] substantially prejudiced the public corporation in maintaining its defense on the merits” (§ 50-e, subd 5 [emphasis added]). In contrast, a prior-notice law is characterized as “a condition precedent to liability for damages or injuries” (§ 50-e, subd 4), rather than merely a condition precedent to the commencement of an action. In keeping with its substantive nature, the failure to give such notice is not remediable by a later act.

As a substantive rule of law, then, a prior-notice ordinance does not come within the constitutional language regarding a local government’s power to legislate over “[t]he presentation, ascertainment and discharge of claims against it” (NY Const, art IX, § 2, subd [c], par [ii], cl [5]). The terms of clause (5) sound in procedural, not substantive law.

In addition, when viewed in light of the over-all limitation precluding local governments from legislating inconsistently with the general law of the State (NY Const, art IX, § 2, subd [c], par [ii]), clause (5) cannot reasonably be read to authorize enacting substantive laws. First, a municipality has no immunity from lawsuit greater than that of the State unless authorized by Constitution, statute, or charter (see Bernardine v City of New York, 294 NY 361, 364-365). If clause (5) is to be read as providing such authority, then nothing exists to prevent any municipality from granting itself total immunity. This, of course, is contrary to the policy underlying the Court of Claims Act, which is generally to subject the State and its subdivisions to liability “determined in accordance with the same rules of law as applied to actions * * * against individuals or corporations” (Court of Claims Act, § 8; see Bernardine v City of New York, supra). Second, it is difficult to identify any area of law that is not already the subject of either statute or case law, including rules about constructive notice. Consequently, as a practical matter, no municipality can limit its immunity through the amendment by local law of substantive rules of law without running afoul of the State’s general law as declared in section 8 of the Court of Claims Act. Thus, clause (5) reasonably can be construed as applying only to procedural matters; a contrary interpretation would recognize a grant of power that would be virtually meaningless. And, as a limited grant of power to adopt procedural rules, clause (5) cannot be authority for a substantive law such as Local Law No. 2.

Nor can it be said that subdivision 4 of section 50-e of the General Municipal Law provides any such authority. Section 50-e as a whole is a procedural statute regulating the commencement of actions against municipalities. Subdivision 4 states that section 50-e sets forth the exclusive requirement for serving a notice of claim as a condition precedent to commencing such actions, but that actual notice of the defect is not thereby dispensed with when required by law. The majority, focusing on a single phrase in subdivision 4 — “where such notice now is, or hereafter may be, required by law” (emphasis added) — asserts that this implicitly authorizes local governments to enact prior-notice laws. Accurately read, however, subdivision 4 does nothing more than resolve a potential conflict, present or future.

It should be noted that the terms of subdivision 4 are particularly detailed. Its proviso refers to “the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway, bridge, culvert, sidewalk or crosswalk, or of the existence of snow or ice thereon”. This substantially repeats the language in subdivision 1 of section 65-a of the Town Law and section 6-628 of the Village Law, both of which are State-enacted prior-notice laws pre-existing section 50-e. A long-standing standard rule of statutory construction is that the Legislature is deemed cognizant of all existing laws (see Davis v Supreme Lodge, Knights of Honor, 165 NY 159, 166; McKinney’s Cons Laws of NY, Book 1, Statutes, p 56). When prior law is contradicted by subsequent legislation there exists the possibility that the Legislature has repealed the former by implication (see Davis v Supreme Lodge, Knights of Honor, supra, at pp 166-167; cf. American Sugar Refining Co. of N. Y. v Waterfront Comm. of N. Y. Harbor, 55 NY2d 11, 30). Rather than broadly reading subdivision 4 of section 50-e to be an implicit grant of power, it should be recognized as nothing more than careful legislative drafting designed to avoid the potential problem of repeal by implication, whether created by the enactment of section 50-e or by a later State enactment of a prior-notice law.

As to the second constitutional basis urged by the majority, it is agreed that, on its face, Local Law No. 2 is within the county’s legislative power as affecting “[t]he acquisition, care, management and use of its highways” (NY Const, art IX, § 2, subd [c], par [ii], cl [6]). The infirmity of Local Law No. 2, however, arises from its conflict with section 139 of the Highway Law, a general law of the State, thereby rendering the ordinance unconstitutional (see NY Const, art IX, § 2, subd [c], par [ii]).

When it has seen fit to do so, the Legislature has enacted statutes limiting a municipality’s duty to maintain its roads and sidewalks in a safe condition to those situations where there is prior written notice of the defect (see Village Law, § 6-628; Town Law, § 65-a). As to townships, however, the Legislature retained the constructive-notice doctrine to the extent of allowing liability to be imposed when “such * * * condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence” (Town Law, § 65-a, subd 1).

In contrast, section 139 of the Highway Law imposes on a county liability for injuries caused by road conditions “existing because of the negligence of the county, its officers, agents or servants.” Other than referring to a requirement that a notice of claim must be served in compliance with section 50-e of the General Municipal Law, section 139 makes no mention of notice — written, oral, actual, or constructive — of the defect as a condition precedent to a finding of negligence. In the absence of such language, counties “are answerable equally with individuais and private corporations for wrongs of officers and employees” (Bernardine v City of New York, 294 NY 361, 365, supra) and thereby subject to liability on the basis of constructive, as well as actual notice. If the Legislature had desired to do otherwise, it clearly'knew how to achieve that goal.

No different result is compelled by the two cases relied on by the majority. Indeed, the local law considered in MacMullen v City of Middletown (187 NY 37, supra), rather than being a “delegation of legislative authority” or a legislative “deferr[al] to the localities to determine what notice is required” (at p 420), was actually part of the city charter (187 NY, at p 39), enacted by the State Legislature itself (L 1902, ch 572). The majority correctly notes that, in MacMullen, this court “held a prior notification provision in a municipal charter to be a valid exercise of legislative power” (at p 420). What the majority overlooks is that the MacMullen ordinance was held a valid exercise of the State’s legislative power in that, in delegating powers to political subdivisions, the Legislature acts supremely and may impose any condition on bringing a civil action against a municipality (MacMullen v City of Middletown, supra, at pp 41-43). Thus, MacMullen offers no support to the majority’s position, as the validity of a local law in a home-rule context was not at issue there.

Nor is Fullerton v City of Schenectady (285 App Div 545, affd no opn 309 NY 701, app dsmd 350 US 980) of any assistance to the majority. The Appellate Division there upheld the local law on the express finding that it was within “the constitutional power of the Legislature to delegate to a city of the second class the right to supersede provisions of a statute that applied to it” (285 App Div, at p 547). No such delegation exists here as to section 139 of the Highway Law. Moreover, although the Legislature has granted towns and villages the power to amend or supersede the Town Law and Village Law, respectively (Municipal Home Rule Law, § 10, subd 1, par [ii], cl d, subcl [3]; cl e, subcl [3]), no such general power has been granted to counties (compare Municipal Home Rule Law, § 10, subd 1, par [ii], cl b). The legal basis for validating the Schenectady ordinance in Fullerton simply is not present in the instant case.

In conclusion, Local Law No. 2 should be recognized as a substantive law in conflict with the provisions of a general law, section 139 of the Highway Law. As such, it is unconstitutional. Accordingly, I would affirm the order of the Appellate Division and answer the question certified in the affirmative.

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

Order, insofar as appealed from, reversed, with costs, and the second affirmative defense reinstated. Question certified answered in the negative.

       Subdivision 4 of section 50-e of the General Municipal Law reads in its entirety: “Requirements of section exclusive except as to conditions precedent to liability for certain defects or snow or ice. No other or further notice, no other or further service, filing or delivery of the notice of claim, and no notice of intention to commence an action or special proceeding, shall be required as a condition to the commencement of an action or special proceeding for the enforcement of the claim; provided, however, that nothing herein contained shall be deemed to dispense with the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway, bridge, culvert, sidewalk or crosswalk, or of the existence of snow or ice thereon, where such notice now is, or hereafter may be, required by law, as a condition precedent to liability for damages or injuries to person or property alleged to have been caused by such condition, and the failure or negligence to repair or remove the same after the receipt of such notice.”


source: Caselaw Access Project

author: Meyer, J. Gabrielli, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Leonard Green, Appellant.
    Argued April 1, 1982;
    decided June 23, 1982

      POINTS OF COUNSEL

      Andrew C. Fine and William E. Hellerstein for appellant.
    I. The trial court’s refusal to submit the lesser included offense of reckless assault constituted reversible error. (People v Henderson, 41 NY2d 233; People v Tai, 39 NY2d 894; People v Smith, 47 AD2d 909; People v Licitra, 47 NY2d 554; People v Weston, 41 AD2d 423; People v Scarborough, 49 NY2d 364; People v Malagon, 50 NY2d 954; People v Bell, 48 NY2d 913; People v Gallo, 12 NY2d 12; People v Dlugash, 41 NY2d 725.) II. The sentencing court’s determination that appellant was ineligible for youthful offender treatment was erroneous as a matter of law, because (a) the court improperly applied the restrictive “armed felony” mitigating circumstances test to its assessment of appellant’s youthful offender eligibility on his conviction for attempted second degree murder as well as his conviction for first degree assault, even though attempted murder is not an armed felony (CPL 1.20, subd 41; 720.10); and (b) the court improperly ruled that it was bound by an earlier ruling of the court below to reject, as a mitigating circumstance, what it considered a reasonable view of the evidence that the shooting was accidental. (People v Green, 76 AD2d 814; People v Drayton, 39 NY2d 580; People v Shannon, 1 AD2d 226, 2 NY2d 792; Matter of Altimari v Meisser, 23 AD2d 672, 15 NY2d 964; Matter of Laudy, 161 NY 429; Kelly v Eggers, 235 App Div 53; People v Palumbo, 79 AD2d 518; People v Junco, 43 AD2d 266, 35 NY2d 419, 421 US 951; People v Farrar, 52 NY2d 302.)

      Robert M. Morgenthau, District Attorney (James H. Fogel and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt. (People v Dorta, 46 NY2d 818.) II. There was no reasonable view of the evidence that defendant acted recklessly; hence the court accurately refused to submit to the jury a count of assault in the second degree as a lesser included offense. In any event, any error in failing to submit reckless assault in the second degree was harmless in light of the jury’s verdict convicting defendant of the highest count submitted — attempted murder — as well as the included offense of intentional assault in the first degree. (People v Strong, 37 NY2d 568; People v Walker, 58 AD2d 737; People v Duncan, 55 AD2d 690; People v Brown, 50 AD2d 1078; People v Safian, 59 AD2d 20, 46 NY2d 181; People v Porter, 69 AD2d 1007; People v Granger, 187 NY 67; People v Brown, 203 NY 44; People v Symcox, 40 AD2d 1039; People v Crimmins, 36 NY2d 230.) III. The sentencing court did not err in denying defendant youthful offender status. (People v Green, 76 AD2d 814.)
   OPINION OF THE COURT

Meyer, J.

A crime which as defined by the Penal Law includes as an element defendant’s mental state can be a lesser included offense of a crime the definition of which requires the same act but a higher mental state, but cannot be a lesser included offense of a crime in the definition of which mental state plays no part. It was, therefore, error for the trial court to refuse defendant’s request that assault in the second degree be charged under an indictment charging assault in the first degree. The order of the Appellate Division should, therefore, be reversed and a new trial ordered.

When a crime may or must be submitted to the jury as a lesser included offense and the effect of doing so are governed by CPL 1.20 (subd 37) and CPL 300.50. “Lesser included offense” is defined by CPL 1.20 (subd 37) as follows: “When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a lesser included offense.’” Absent a request for submission of a lesser included offense, it is not error not to do so, but the court may, and if a request is made by either party the court must, “submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense. Any error respecting such submission, however, is waived by the defendant unless he objects thereto before the jury retires to deliberate” (CPL 300.50, subds 1, 2). CPL 300.50 (subd 4) also requires that when two or more offenses are submitted in the alternative under the section, the court must instruct the jury that it may render a verdict of guilty with respect to any one of such offenses, depending upon its findings of fact, but that it may not render a verdict of guilty with respect to more than one. A verdict of guilty of any such offense is not deemed an acquittal of any lesser offense submitted, but is deemed an acquittal of every greater offense submitted. The principle behind these provisions is as we stated in People v Perez (45 NY2d 204,209), “that a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act may, because of statutory definition, be theorized as constituting separate criminal acts.”

Whether a crime is a lesser included offense under these provisions is determined by a two-tiered analysis, as our Per Curiam in People v Glover (57 NY2d 61) makes clear: (1) considering in the abstract the Penal Law definition of the crime charged in the indictment in relation to the Penal Law definition of the claimed lesser included offense, is it theoretically impossible to commit the greater crime without at the same time committing the lesser; (2) is there a reasonable view of the evidence in the particular case that would permit the jury to conclude that the defendant committed the lesser but not the greater offense. The impossibility element speaks not to all the variations of the greater offense that are detailed in a Penal Law section with numerous subdivisions, but only to the subdivision which the particular act or omission referred to in the indictment brings into play. The theoretical comparison then to be made is of the act or omission which each statute makes criminal and whether the greater offense is one of strict liability rather than one of mental culpability.

If the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met and the charge should not be given (People v Graham, 44 NY2d 768 [giving an unlawful gratuity which is rewarding official conduct already performed (Penal Law, § 200.30), not lesser included of bribery the gist of which is the effort to influence an official act yet to be performed (Penal Law § 200.00)]; People v Acevedo, 40 NY2d 701 [robbery, second degree, which requires proof that defendant was aided by another person actually present (Penal Law, § 160.10, subd 1), not lesser included of robbery, first degree, which does not (Penal Law, § 160.15)]; see, also, People v Ramirez, 55 NY2d 708; People v Greer, 42 NY2d 170). Likewise, when the greater crime is an offense of strict liability with respect to an element of required conduct, no offense which includes as part of its required conduct a culpable mental state can be a lesser included offense because it is possible to commit the greater offense without “by the same conduct” committing the lesser. In such a case the impossibility test has not been met and the charge should not be given (People v Miguel, 53 NY2d 920 [assault, third degree, which requires proof that defendant acted recklessly or with specific intent to cause physical injury (Penal Law, § 120.00), not lesser included of either robbery, second degree (Penal Law, § 160.10), or felony assault (Penal Law, § 120.05, subd 6), neither of which requires proof of a culpable mental state with respect to the physical injury caused]; People v Newton, 46 NY2d 877 [assault, first degree, which requires proof of an intent to cause serious physical injury (Penal Law, § 120.10, subd 1), not lesser included of robbery, first degree, under either subdivision 1 or 3 of section 160.15 of the Penal Law, which though they require proof that serious physical injury was caused do not require proof of mental culpability]).

If, however, both the lesser and the greater offenses require demonstration of a culpable mental state, the fact that the degree of culpability specified for each differs from the other does not foreclose giving a lesser included charge on impossibility grounds. The reasons for this are spelled out in People v Stanfield (36 NY2d 467) and, though no issue on this question has been raised by the parties, bear review and reaffirmation in view of the arguments advanced in the dissent. Stanfield recognized that the various degrees of culpability specified in subdivision 6 of section 15.00 of the Penal Law and defined in section 15.05 (intentionally, knowingly, recklessly, with criminal negligence) are not capable of direct proof. They are, instead, to be inferred from the facts and circumstances proved and involve “fine gradations along but a single spectrum of culpability” (36 NY2d, at p 473), the lower mental states being necessarily included in the higher forms of mental culpability. Consequently, we held, the result and underlying conduct of criminally negligent homicide (Penal Law, § 125.10) and manslaughter, second degree (Penal Law, § 125.15, subd 1), being identical and the only distinction between the two crimes being the mental state of the defendant, it is, within the meaning of CPL 1.20 (subd 37) and CPL 300.50, impossible to commit the latter without concomitantly committing the former. We reached that conclusion, moreover, notwithstanding the People’s contention that the necessary implication of CPL 220.20 was to the contrary (36 NY2d, at p 472). In concluding that the kaleidoscopic nature of the varying degrees of mental culpability warranted the broader view of the statutory definition of “lesser included offense” adopted by us, rather than the overly mechanical reading urged upon us by the People, we were guided in part by the fact that the rule adopted serves the best interests of both the person accused and the People. From the perspective of the accused, submission of a lesser included offense enables the jury to extend mercy by providing a less drastic alternative than the choice between acquittal and conviction of the offense charged (People v Mussenden, 308 NY 558, 562; People v Rytel, 284 NY 242, 245; see, also, Beck v Alabama, 447 US 625, 633). But submission of a lesser included offense redounds to the benefit of the People as well, for it may prevent “the prosecution from failing where some element of the crime charged was not made out” (People v Murch, 263 NY 285, 291; see, generally, Pitler, New York Criminal Practice Under the CPL, § 12.49, p 660 [and cases cited]).

Stanfield’s rule and rationale have been applied in later cases in which we held that reckless manslaughter is a lesser included offense of intentional murder (People v Murray, 40 NY2d 327, 335, cert den 430 US 948; People v Tai, 39 NY2d 894; see, also, People v Russo, 41 NY2d 1091, 1092; People v Strong, 37 NY2d 568). Indeed, this court has consistently applied the rule that where the elements of the lesser offense (i.e., result and underlying conduct) are identical with the requisite elements of the greater crime and the only thing that differs between the two crimes is the culpable mental states, the CPL definition of “lesser included offense” is nevertheless satisfied since the lower forms of mental culpability are necessarily subsumed within the higher mental states. Moreover, in the seven years that have elapsed since Stanfield was decided, the Legislature has expressed no disagreement with its holding nor has either the defense or the prosecution side of the trial bar. Usual principles of stare decisis suggest, therefore, that we should make no change in the Stanfield rule now (see Matter of Higby v Mahoney, 48 NY2d 15, 19) and that neither People v Ramirez (55 NY2d 708, supra) nor People v Miguel (53 NY2d 920, supra) can be regarded as having overruled or modified the Stanfield rule sub silentio, as the dissenter, who concurred in the Stanfield decision and appears still to accept its rationale, suggests. The fallacy of the dissent is in failing to distinguish, as does section 15.10 of the Penal Law, between an offense of strict liability (one which “does not require a culpable mental state on the part of the actor”) and one of mental culpability (one which requires “a culpable mental state on the part of the actor * * * with respect to every material element”). Because as above demonstrated the greater crimes involved in Miguel were, as to the resulting physical injury, offenses of strict liability, the lesser crime which required proof of mental culpability was held not to be a theoretically impossible concomitant of the conduct required to prove the greater. Nothing in the wording or the result of Miguel is inconsistent with the Stanfield rationale.

The second prong of lesser included offense analysis requires review of the evidence presented in the particular case to determine whether there is a reasonable view of the evidence upon which the jury could find that defendant committed the lesser offense but not the greater (CPL 300.50, subd 1; People v Henderson, 41 NY2d 233). In that analysis the court’s evaluation of the persuasiveness of the evidence of guilt of the greater crime is irrelevant and the jury’s right to accept some part of the evidence presented by either side and reject other parts of that proof must be respected (People v Henderson, supra; People v Shuman, 37 NY2d 302; People v Asan, 22 NY2d 526).

In the instant case defendant was charged with attempted murder in the second degree under section 110.00 and subdivision 1 of section 125.25 of the Penal Law that is, with conduct tending to intentionally cause death, and with assault in the first degree under subdivision 1 of section 120.10 of the Penal Law, that is, with intent to cause serious physical injury, causing such injury by means of a deadly weapon or a dangerous instrument. He requested but was denied a charge, as a lesser included offense, of assault in the second degree under subdivision 4 of section 120.05 of the Penal Law, that is, recklessly causing serious physical injury by means of a deadly weapon or dangerous instrument. Because each is a crime of mental culpability and the acts required to prove both first and second degree assault are exactly the same, the impossibility condition is met, notwithstanding the difference in degree between first degree (intentional) and second degree (reckless) assault.

There is also a reasonable view of the evidence from which the jury could conclude that defendant committed the lesser but not the greater offense. Although the victim’s testimony was that the trigger was deliberately pulled, there was before the jury the testimony of Peter Mitchell, introduced by the People, that defendant said as they ran from the scene that the gun went off by accident. The jury could conclude on the basis of that testimony, the evidence that the weapon was given to defendant but a few minutes before the shooting,' and his age that the act of shooting was reckless but accidental, or that defendant’s statement was a subjective, but untruthful, effort to lessen his guilt, but it cannot be said that the latter is the only or even a necessarily more reasonable view of the evidence than the former.

Nor can it be said that the error in failing to submit the lesser crime was harmless. Only if defendant were convicted of the higher offense charged (attempted murder in the second degree) and acquitted of the lower offense charged (assault in the first degree) would the failure to charge an even lesser offense (second degree assault) be harmless. The fact that defendant was convicted of both offenses charged (attempted murder and first degree assault) does not establish that there was no significant probability the jury would have acquitted him of those charges and convicted him of second degree assault if that option were available to it (compare People v Granger, 187 NY 67, with People v Crimmins, 36 NY2d 230).

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

Gabrielli, J.

(dissenting). Because I believe the result reached by the majority in this case represents a departure from the strict approach we have recently taken to the proper definition of a “lesser included offense”, I must dissent.

It now appears to be settled that, in order to have a “lesser included offense” submitted to the jury as an alternative charge to a greater offense, two showings must be made. First, it must be shown that the particular offense meets the definition of a “lesser included offense” contained in CPL 1.20 (subd 37). Secondly, there must be a reasonable view of the evidence to support a finding that the defendant committed the lesser offense rather than the greater offense (CPL 300.50).

It is the first requirement that has given the courts trouble and which is the focal point of this appeal. “Lesser included offense” is defined in the Criminal Procedure Law in the following manner: “When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a lesser included offense’ ” (CPL 1.20, subd 37). At one time, this court approached the interpretation of this definition by taking into consideration the facts of the particular case (People v Cionek, 35 NY2d 924; People v Hayes, 35 NY2d 907, affg on opn below 43 AD2d 99). We have, however, recently abandoned that approach in favor of one which abides by a literal reading of the statutory definition. Thus, in order to satisfy the first requirement of CPL 300.50 — that the offense sought to be charged is indeed a “lesser included offense” — it must be shown that it is theoretically impossible to commit the greater offense without concomitantly committing the lesser. If, under every set of circumstances, commission of the greater offense necessarily involves commission of the lesser, the latter is to be considered a “lesser included offense”.

Using this interpretation of the term “lesser included offense”, we recently held, in People v Miguel (53 NY2d 920), that the crime of assault in the third degree (Penal Law, § 120.00), requiring either that defendant intentionally or recklessly cause physical injury, is not a “lesser included offense” of either the crime of robbery in the second degree (Penal Law, § 160.10, subds 1, 2, par [a]) or felony assault (Penal Law, § 120.05, subd 6). Because it is possible to commit either of the two greater offenses charged without concomitantly committing assault in the third degree, the latter crimes is not a “lesser included offense”, notwithstanding that, on the facts of the particular case, it may have been true that commission of the greater offense included commission of the lesser.

Similarly, in People v Ramirez (55 NY2d 708), we held that reckless endangerment in the first degree (Penal Law, § 120.25) is not a “lesser included offense” of attempted murder in the second degree (Penal Law, §§ 110.00,125.25, subd 1), because the crime of reckless endangerment requires that a grave risk of death be created by defendant’s conduct, which is not required for the crime of attempted murder. This is so, even though in many cases, an attempt to commit murder will involve the creation of a grave risk of death. However, there remains the theoretical possibility that an attempt to commit murder, rendered innocuous by some circumstances of factual impossibility, will not create a grave risk of death to another person. It is this possibility that the greater offense might, under a given set of circumstances, be committed without also committing the lesser offense, that precludes the lesser offense from being considered a “lesser included offense”.

Finally, in the case decided simultaneously with the present case, we have reaffirmed our strict interpretation of what constitutes a “lesser included offense”. In People v Glover (57 NY2d 61), we held that criminal facilitation in the second degree (Penal Law, § 115.05) is not a “lesser included offense” of the crime of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41, subd 1), because theoretically it is possible to effectuate a criminal sale of a controlled substance without concomitantly intending to aid another to commit a class A felony.

Although the court now appears committed to this approach, the majority nevertheless has concluded that an entirely different approach is warranted in cases where the only difference between the charged crime and the crime of lesser grade is the mental state with which the crime is committed. In so doing, the majority relies upon cases such as People v Stanfield (36 NY2d 467), whose rationale I firmly believe has been overruled by our recent cases on this point.

In People v Stanfield (supra), the court articulated a rule to the effect that where the result and the underlying conduct of two crimes are the same, the only difference being the mental element, the lesser of the two crimes is to be considered a “lesser included” of the greater. On the facts of Stanfield, this rule resulted in a holding that the crime of criminally negligent homicide (Penal Law, § 125.10) is a “lesser included offense” of the crime of manslaughter in the second degree (Penal Law, § 125.15, subd 1). Later cases adopted the view that where the crimes involve the same conduct and result, but contemplate a differing mental element, a crime involving reckless conduct may properly be considered a “lesser included offense” of a crime involving intentional conduct (see, e.g., People v Tai, 39 NY2d 894; People v Murray, 40 NY2d 327).

Clearly then, this court has, in the past, adhered to the theory expressed by the majority today that the varying mental states exist along a continuum and that the lesser forms of mental culpability are necessarily included within the higher forms. My disagreement with the majority lies in my belief that the rationale underlying that theory is no longer a plausible one, in view of the recent decisions of this court. That the strict interpretation of “lesser in-eluded offense” adopted in Miguel and followed in Ramirez and Glover precludes continued adherence to the “continuum of mental state” approach is clear.

It bears repeating that this recent authority establishes the principle that an offense is a “lesser included offense” only if it is theoretically impossible, under every set of circumstances, to commit the greater offense without concomitantly committing the lesser. An examination of the definitions of the various culpable mental states contained in the Penal Law demonstrates the difficulty with the majority’s theory. A person acts “intentionally” when his conscious objective is to cause a particular result or engage in particular conduct (Penal Law, § 15.05, subd 1); he acts “recklessly” when he is aware of and consciously disregards a substantial and unjustifiable risk that a particular result will occur (Penal Law, § 15.05, subd 3); and one acts with criminal negligence when he fails to perceive a substantial and unjustifiable risk that a particular result will occur (Penal Law, § 15.05, subd 4). Although I agree with the majority that, in reality, there may be but shades of difference between these mental states on the facts of a given case, nevertheless, the theoretical possibility of committing a crime of intent without at the same time committing a crime of recklessness or criminal negligence does exist. Indeed, these mental states are mutually exclusive in the sense that the existence of one mental state on the part of a given actor precludes the existence of all others. One who acts intentionally, that is, with specific intent to bring about a particular result, cannot, at the same time, have acted merely in conscious disregard of a substantial risk. More obviously, one cannot act in conscious disregard of a substantial risk and at the same time fail to perceive that risk. Practical difficulties in terms of the nature of proof and the varying inferences that might be drawn from it do not justify a departure from the clear statutory language. And while I can sympathize with the desire for greater flexibility in this area, I believe the adoption of such an approach is, at this point, a matter of legislative concern.

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

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

Order reversed, etc.

      . CPL 300.40 (subd 3, par [b]) also speaks to the question but its requirements are included in CPL 300.50 and, therefore, are not separately considered.

      . Though not pertinent to the present case, the subdivision also states that: “In any case in which it is legally possible to attempt to commit a crime, an attempt to commit such crime constitutes a lesser included offense with respect thereto.”

      . Although an intent is required as to the underlying crime for conviction of felony assault (Penal Law, § 120.05, subd 6) as well as felony murder (Penal Law, § 125.25, subd 3), it is an intent to commit the underlying felony. As to the physical injury or death involved, the intent is unrelated and the crime is, therefore, as to that injury or death one of strict liability.

      . Our disavowal in People v Glover (57 NY2d 61, supra) of so much of Stanfield as accepted the rationale of People v Johnson (39 NY2d 364), People v Cionek (35 NY2d 924) and People v Hayes (35 NY2d 907) and permitted consideration of the impossibility inquiry on a factual rather than a theoretical basis does not affect our continued acceptance of the aspect of Stanfield now under discussion.

      . In Keeble v United States (412 US 205, 212-213), Justice Brennan succinctly explained the benefit received by an accused when the jury is provided with the “third option” of convicting on a lesser included offense: “[I]t is no answer to petitoner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction * * * precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction” (emphasis in original).

       What the majority terms a “fallacy” in this regard, of course, represents nothing more than the point at which our respective opinions diverge. I see no “fallacy” in adhering to recent precedent of this court and in recognizing that it has undermined the rationale, if not the letter, of prior precedent.


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Joseph F. Orlando, Appellant.
    Argued May 14, 1982;
    decided July 1, 1982

      POINTS OF COUNSEL

      Robert Rivers for appellant.
    I. Robbins v California mandates reversal of the judgment of conviction. (Robbins v California, 453 US 420; Coolidge v New Hampshire, 403 US 443; United States v Chadwick, 433 US 1; Rakas v Illinois, 439 US 128; Arkansas v Sanders, 442 US 753; United States v Dien, 609 F2d 1038, 615 F2d 10; United States v Mannino, 487 F Supp 508.) II. Defendant’s oral admissions were involuntary and must be suppressed. (Miranda v Arizona, 384 US 478; Brown v Illinois, 422 US 590; Fikes v Alabama, 352 US 191; Boulden v Holman, 394 US 478; People v Huntley, 15 NY2d 72; People v Langert, 44 Misc 2d 399, 25 AD2d 952, 21 NY2d 890.) III. The search of defendant’s automobile subsequent to his arrest was illegal and the evidence seized therein must be suppressed. (Coolidge v New Hampshire, 403 US 443; People v Clark, 45 NY2d 432; People v La Borde, 66 AD2d 803; Schneckloth v Bustamonte, 412 US 218; Preston v United States, 376 US 364; Chambers v Maroney, 399 US 42; People v Garcia, 41 AD2d 560; People v McCarthy, 14 NY2d 206.) IV. The sentences imposed were excessive in light of the nature of the offense and defendant’s background. (People v Yore, 36 AD2d 818.)

      Denis Dillon, District Attorney (Denise Parillo and Anthony J. Girese of counsel), for respondent.
    I. The search of defendant’s car and the paper bags found in the passenger area premised upon probable cause to believe that they contained contraband was proper. (Robbins v California, 453 US 420; Chambers v Maroney, 399 US 42; Carroll v United States, 267 US 132; Colorado v Bannister, 449 US 1; People v Kreichman, 37 NY2d 693; People v Belton, 55 NY2d 49; People v Middleton, 54 NY2d 474; People v Clark, 45 NY2d 438; People v Milerson, 51 NY2d 919; United States v Chadwick, 433 US 1.) II. The court correctly ruled that defendant’s statements were voluntary. (People v Anderson, 42 NY2d 35; People v Bridget, 73 AD2d 291; People v Prochilo, 41 NY2d 759; People v James, 24 AD2d 608, 17 NY2d 552; People v MacMillan, 56 AD2d 662; People v Fox, 65 AD2d 880; People v Chaffee, 55 AD2d 736; People v Pooler, 41 AD2d 1011, 34 NY2d 772; People v Bryant, 50 NY2d 949; People v Leonti, 18 NY2d 384.) III. The sentence imposed was legal. (People v Lopez, 41 NY2d 876; People v Gittleson, 18 NY2d 427; People v Broadie, 37 NY2d 100.)
   OPINION OF THE COURT

Meyer, J.

When the police have probable cause to arrest a defendant with respect to three forged prescriptions presented to a pharmacy by him and in the course of questioning immediately following arrest he admits that his car is parked alongside the pharmacy and contains additional forged prescriptions as well as illegally obtained drugs, search of the vehicle by the police without a warrant is permissible. The order of the Appellate Division should, therefore, be affirmed.

At about 8 p.m. on May 4, 1978, detectives from the Narcotics Squad of the Nassau County Police Department entered the Pathmark Pharmacy in East Rockaway, New York, and asked to see the record of controlled substances dispensed (see Public Health Law, § 3343, subd 2). Inquiry of the pharmacist trainee who gave them the book with respect to a tuinal prescription filled for Charles Bandel brought forth from her the information that a man had just left three prescriptions to be filled for Charles Bandel, and a description of the man. Those three prescriptions were on forms bearing the name of Dr. Leon Oxman and what purported to be Dr. Oxman’s signature. A telephone call to Dr. Oxman revealed, however, that he had neither prescribed drugs for nor had a patient named Charles Bandel and that some of his pads of prescription blanks were missing.

Twenty minutes later defendant entered the pharmacy and was identified to one of the detectives by signal from the pharmacist trainee. Asked by the detective whether he had brought in the three Bandel prescriptions, defendant acknowledged that he had and was immediately placed under arrest. After being advised of and, as both courts below found, having waived his constitutional rights, defendant was questioned, first inside the pharmacy and then while seated in the detectives’ car, a process which took altogether about 15 minutes. During the questioning defendant admitted that his name was Joseph Orlando and that there were other prescriptions as well as drugs obtained from other pharmacies in his car, which was parked in the parking lot alongside of the pharmacy. The detectives then took the keys to the car from defendant’s pocket (he was handcuffed), searched the passenger compartment and seized six paper bags containing barbituates and an attaché case containing 33 forged prescriptions.

In a 37-count indictment, defendant was charged in 36 counts with possession of a forged instrument (the first three covering the Pathmark prescriptions and the remaining 33 covering the prescriptions recovered from the attaché case) and in the last count with illegal possession of the drugs in the six paper bags recovered from the car. Defendant moved to suppress the statements made after his arrest as well as all of the prescriptions and all of the drugs. After a hearing, the 33 prescriptions found in the attaché case were suppressed, but the motion was otherwise denied. Defendant then pleaded guilty to the three counts based upon the Pathmark prescriptions in satisfaction of the entire indictment and was sentenced accordingly. The Appellate Division affirmed, without opinion.

On defendant’s appeal to our court, he makes no argument that the Pathmark prescriptions, in which the suppression court found he had no possessory interest, are suppressible. Moreover, there being affirmed findings of fact that defendant’s statements were made after knowing and voluntary waiver of his constitutional rights, we perceive no basis upon which to disturb that ruling. The only question requiring discussion then is the admissibility of the drugs involved in the last count, seized during search of defendant’s parked car.

To be emphasized is the fact that the vehicle was parked in a public place; its location did not necessitate a warrant as might be the case had it been parked in a nonpublic place (cf. Coolidge v New Hampshire, 403 US 443). Moreover, the drugs in question were in paper bags within the passenger compartment and thus within the area of search permissible under the rulings of the Supreme Court in United States v Ross (456 US_, 50 USLW 4580), and of this court in People v Belton (55 NY2d 49). What distinguishes the present case from Ross and Belton, however, is that they involved moving vehicles stopped by the police and that, therefore, there is less of a basis in the present case for an exigency contention in support of the search.

The distinction notwithstanding, the search of defendant’s vehicle was justified because the detectives had probable cause on the basis of what they had been told by the pharmacist trainee, by Dr. Oxman and by defendant himself to believe not only that defendant had possessed the forged instruments presented to Pathmark but also that additional contraband (in the form of forged prescriptions and drugs illegally obtained through use of other such prescriptions) would be found in the car.

The Supreme Court has upheld the warrantless search of a stopped vehicle when there is probable cause to believe that contraband or evidence of a crime will be found in the vehicle (Colorado u Bannister, 449 US 1; Carroll v United States, 267 US 132), even though all of the occupants of the vehicle have been arrested before the search is made (Chambers v Maroney, 399 US 42). It has also made clear that it is not of constitutional significance whether the vehicle is searched where it was stopped or impounded and searched after removal to the station house (Texas v White, 423 US 67, 68; Cardwell v Lewis, 417 US 583, 594; Chambers v Maroney, supra, at p 52) or that it would have been reasonable to post a police guard at the vehicle until a warrant could be obtained (Chambers v Maroney, supra; Cardwell v Lewis, supra). And as recently as a month ago, that court has re-examined those cases in United States v Ross (456 US _, _, n 9; 50 USLW 4580, 4583, n 9, supra) and concluded that “if an individual gives the police probable cause to believe a vehicle is transporting contraband, he loses the right to proceed on his way without official interference” (id.), a result which it noted was based upon “the practicalities of the situations presented and a realistic appraisal of the relatively minor protection that a contrary rule would provide for privacy interests” (id.).

The same considerations sustain the search in the instant case of defendant’s parked vehicle, bearing in mind the proximity of the vehicle to the point of arrest and the closeness of the search to the time of arrest and the probable cause which, as already noted, the detectives had for conducting the search. The result reached is consistent with our holdings in People v Middleton (54 NY2d 474, 482-483); People v Milerson (51 NY2d 919, 921); People v Clark (45 NY2d 432, 439), and People v Singleteary (35 NY2d 528, 533). A contrary result cannot be justified simply because the vehicle in one case is parked and in the other had been moving until stopped. The same realistic evaluation of the privacy interests involved and practicalities of police investigation sustain the seizure of the drugs involved in the present case, in view of the closeness in time and space between the arrest and the search and seizure. The extent to which differences in time, place or circumstances may call for the application of a contrary rule we are not now called upon to decide.

Accordingly, the order appealed from should be affirmed. Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Fuchsberg concur with Judge Meyer; Judge Gabrielli concurs in result only.

Order affirmed.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Charles E. Schaeffer, Appellant.
    Argued June 8, 1982;
    decided July 1, 1982

      POINTS OF COUNSEL

      Ira P. Sloane for appellant.
    I. A confession to murder, placed before a jury in violation of defendant’s constitutional privilege against self incrimination and right to counsel, is not harmless error. (People v Crimmins, 36 NY2d 230; People v Skinner, 52 NY2d 24; People v Rogers, 48 NY2d 167; People v Arthur, 22 NY2d 325; People v Hobson, 39 NY2d 479; People v Pinzon, 44 NY2d 458; People v Bevilacqua, 45 NY2d 508; People v Garofolo, 46 NY2d 592; People v Cunningham, 49 NY2d 203.) II. In addition to the detailed confession, two additional admissions were permitted into evidence in violation of defendant’s privilege against self incrimination and right to counsel. (People v Kaye, 25 NY2d 139; People v Roucchio, 52 NY2d 759; Watts v Indiana, 338 US 49; People v Hobson, 39 NY2d 479; People v Rogers, 48 NY2d 167; People v Maerling, 46 NY2d 289; People v Grimaldi, 52 NY2d 611; People v Lucas, 53 NY2d 678; People v Burke, 53 NY2d 672.) III. At a minimum, the resolution of this appeal must be held in abeyance pending a new suppression hearing for determination of the point at which defendant’s right to counsel attached. (People v Lombardi, 18 AD2d 177, 13 NY2d 1014; People v Manguso, 24 AD2d 539; People v Cunningham, 49 NY2d 203; Dunaway v New York, 442 US 200; People v Grant, 80 AD2d 862; People v Calhoun, 73 AD2d 972; People v Specks, 77 AD2d 669; People v Misuis, 47 NY2d 979.)

      John J. Santucci, District Attorney (Thelma Lee of counsel), for respondent.
    I. The admission into evidence of defendant’s statement made after his right to counsel had attached did not affect the verdict in this case. (People v Hobson, 39 NY2d 479; People v Rogers, 48 NY2d 167; People v Garofolo, 46 NY2d 592; People v Bevilacqua, 45 NY2d 508; People v Pinzon, 44 NY2d 458; People v Patterson, 53 NY2d 829; People v Conroy, 97 NY 62; People v Leyra, 1 NY2d 199; Milton v Wainwright, 407 US 371; United States v Levy, 578 F2d 896.) II. Defendant’s two spontaneous admissions were properly introduced into evidence at trial. (People v Lynes, 49 NY2d 286; People v Kaye, 25 NY2d 139; People v Roucchio, 52 NY2d 759; People v Lucas, 53 NY2d 678; People v Anderson, 42 NY2d 35; People v Leonti, 18 NY2d 384.) III. A new suppression hearing is wholly unnecessary. (People v Gonzalez, 39 NY2d 122; Bumper v North Carolina, 391 US 543; People v Brady, 16 NY2d 625; People v Acosta, 74 AD2d 640; People v Massiah, 47 AD2d 931; Dunaway v New York, 442 US 200; United States v Reda, 563 F2d 510; United States v Calandrella, 605 F2d 236; People v Wright, 71 AD2d 585.)
   OPINION OF THE COURT

Fuchsberg, J.

The question presented on this appeal is whether the concededly erroneous admission into evidence of a statement given in violation of his right to counsel by defendant, Charles Schaeffer, was harmless error in light of his other statements which properly were received. The Appellate Division held the tainted statement harmless and affirmed defendant’s conviction (79 AD2d 1034). Because we cannot agree with this conclusion, we reverse and order a new trial.

At a suppression hearing, it was adduced that early one morning, the body of Charlie Angelos was found dead at the bar he tended at the Steinway Terrace in Queens. He had been shot through the head. Later that day, preliminary investigation led detectives to seek out defendant at his mother’s house, from which they asked him to accompany them to the police station. These detectives testified that he did so willingly and that they therefore had no occasion to question him or to give him the warnings against self incrimination mandated by Miranda v Arizona (384 US 436). Defendant’s mother, the only witness the defendant produced at the hearing, described how, as her son left with the officers, he asked her to call an attorney named Lester. On this point the detectives’ recollection was to the contrary.

The hearing also developed that, when the defendant arrived at the station house, he was turned over to another officer, Detective McTigue, who, in his turn on the stand, narrated how “I advised the defendant of his right to counsel and he indicated to me that he didn’t do anything and that he would answer questions put to him. I asked him if he owned a gun and he said that he didn’t own a gun. I asked him if he was at the Steinway Terrace Park on March 18 and 19 and he stated that he went in there in the evening, maybe around 5 P.M. or 7 P.M. He stated he had some drinks, he left and he went to P.J.’s Bar on 21st Street. Later on in the evening, he came back to the Steinway Terrace Bar. He had a drink and then he went home.” At this juncture, as McTigue went on to relate, he confronted the defendant with a man named McGuinness, upon whose appearance the defendant asked “Aren’t you the man that was in the bar when I left last night?”, to which McGuinness replied, “Wait a minute. You have it reversed. You were the man in the bar when I left, you were the only one left in the bar; that must have been 3:45 A.M.”. And, after McGuinness was excused, McTigue, accusing the defendant of lying, told him, “You said you didn’t own a gun and I have a man that said you told him that you owned a .45. You said that you were not the last one in the bar and now I have a man who said you were the last one in the bar”. After McTigue reiterated the claimed inconsistencies “several times”, defendant finally replied, “All right, I shot him. I will take you to where the gun is”. This was his first admission of the shooting.

Continuing his testimony, McTigue described how the defendant then led him: and several other detectives back to his mother’s house, where he pointed to a box which he said contained the murder weapon. When McTigue opened it and found no gun, the defendant, explained, “Well, the other gun is in the back” and indicated a second box. Opening this one, McTigue recovered a bolstered, fully loaded .38 caliber pistol, which defendant identified as one he had taken from the deceased. Right after that, according to McTigue, the defendant asked his mother to give the police the murder weapon and volunteered, “I shot the man and I want to get it over with”. Significantly, at this time, while they were all still at the mother’s house, as McTigue later acknowledged, the mother called out that there was a lawyer on the telephone and McTigue replied that he would not speak to any lawyer on the telephone and that, if it was defendant’s lawyer, she should tell him to meet them at the station house.

The police then returned the defendant to the station house, where he made a third, this time more detailed, oral statement to McTigue, who related it to the hearing court as follows: “I questioned the defendant some more and he stated that he was in the bar, he had about 20 drinks, scotch and soda. There were three people at the bar, himself, the cook, Tommy [Planz], and another man with gray hair [Mr. McGuinness] * * * He stated that after a while, Tommy Planz, the cook, left and that left himself and the gray-haired man at the end of the bar. At about 3:30, twenty minutes to four, the man at the end of the bar left which left him and the bartender. Charlie, the bartender, started to count the receipts. Mr. Scha[ef]fer took a $5 bill out and put it on the counter as a tip for the bartender. He took out the .45 and pointed it at Charlie and Charlie said, ‘Look, don’t get excited, I will take my gun out and I will put it on the bar so you can see that everything is all right.’ He said with that the gun went off and it kept on going off and Charlie fell down * * * He then said, T went behind the bar and took the gun. I went home. I put the gun in the basement and I went to bed.’ ”

It was on this record and no more that the hearing court found that defendant’s statements were made “[after] he was told of his rights [and] waived his right to remain silent and he waived his right to counsel when he made the statements”. No specific finding was made concerning the point at which defendant invoked his right to counsel. All the statements were ruled admissible.

Testimony that these three statements and two later ones were made was introduced at the trial. Of the additional two, the initial one was made in a police car on the way back from the mother’s house after the defendant had given McTigue the gun he admitted taking from Angelos. It is undisputed that it started with a self-generated remark by the defendant that “You guys must hate me for what I did” and, after the two detectives who heard it reassured the defendant on this point, he continued, “Charlie was a good friend of mine. Charlie was the only guy that ever did anything for me, and look what I did to him”. The last of the two additional statements were part of a telephone conversation between the defendant and his mother and brother while he was waiting to be booked. McTigue, who overheard the conversation, quoted the defendant as having said, “Mom, you do not understand me. You know I had problems”, and, to the brother, “Do not wind up like me. You know what I am doing, do not be like me”. At trial, defense counsel did not object to the introduction of any of this matter.

Assuming, without deciding, that defendant’s first two statements were properly admitted at the trial, it is clear that admission of defendant’s detailed station house statement, taken by McTigue immediately after the detective had refused to speak to counsel on the telephone, was reversible error. Indeed, the People candidly concede that, from that moment, further questioning should have ceased. Surely, at this stage in the development of our law on this subject, it hardly needs repetition that, under these circumstances, defendant’s right to counsel had attached, that it could not be waived in counsel’s absence and that any statements taken in violation of that right would be subject to suppression (People v Garofolo, 46 NY2d 592; People v Hobson, 39 NY2d 479).

The harmless error rule, as it relates to error of constitutional dimension, is, simply stated, “that there is no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt (Chapman v. California, 386 U. S. 18; Fahy v. Connecticut, 375 U. S. 85).” (People v Crimmins, 36 NY2d 230, 237.) While easily articulated, however, its application at times presents a considerable challenge (see, generally, McCormick, Evidence, § 183, p 431; Kamisar, La Fave and Israel, Modern Criminal Procedure [5th ed], pp 809-818; Mause, Harmless Constitutional Error: The Implications of Chapman v. California, 53 Minn L Rev 519; Notes, 83 Harv L Rev 814, 20 Stanford L Rev 83; see, generally, Traynor, The Riddle of Harmless Error, pp 1-26).

Especially is this true when the flawed evidence, as here, is in the nature of a confession, since, as pragmatic practitioners long ago learned, confessions of crime, supremely self-condemnatory acts, are almost sure to weigh most heavily with fact finders (see People v Ramos, 40 NY2d 610, 618-619; McCormick, Evidence [2d ed], § 148, p 316; Richardson, Evidence [10th ed — Prince], § 556). Nevertheless, before constitutional error, even when it deals with confessions, may be found to be harmless, it is not necessary that the untainted evidence on which the verdict in the case must be supported demonstrate undisputable guilt. Rather, the reasonable doubt standard, extremely high though it is, still leaves room for judgmental determination of harmlessness (e.g., People v Sanders, 56 NY2d 51, 66-67). In cumulative statement cases this invites caution.

Thus, reviewing courts should take into account the degree to which tainted statements are duplicative of untainted ones and, to the extent that they are not, the nature and extent of the differences. For, though the corroborative nature of an overlap between a statement whose admission is infected with error and one which is not may contribute to the weight a fact finder gives to one which was properly received, still the more they differ the greater the possibility that the additional matter supplied by the tainted one was a sine qua non of the production of the verdict.

And, because consideration of whether an error is harmless requires an evaluation not only of the tainted matter, but of the strength of the case absent the taint, the court must focus on the reliability and persuasiveness of the untainted matter and its source. So, for instance, written statements may be “looked at as more reliable than their more evanescent oral counterparts” (People v Garofolo, 46 NY2d 592, 602, supra; see People v Prince, 50 NY2d 883 [tainted statement taken by an Assistant District Attorney in his official capacity held not harmless though untainted one was of similar content]).

In short, neither side of the evidentiary equation may be ignored; in the end, the picture must be seen as a whole. The ultimate question, of course, must be whether the People, as the beneficiary of the error, have fully borne the burden of establishing harmlessness by the strict, though not unrealistic Chapman-Crimmins standard; fair trial requires no less (Chapman v California, 386 US 18, 24, supra).

Turning then to the statements in the case before us now, we note at once that the one statement taken in defiance of the fact that the right to counsel had attached not only was by far the longest, but also the most detailed. From this the jury could very well have inferred that, in contrast with what could be claimed to be the earlier utterances of a pressured suspect, its narrative carried the authoritative ring of more precise and unharried deliberation. More important, the defendant’s two preceding colloquies with the police — in one of which he said little more than “I shot him” and in the second of which the heart of his confession again was “I shot the man and I want to get it over with” — were bare of any indication of intent or motive. Indeed, standing alone, their tone of contrition was as consistent with remorse over an accidental shooting as over murder. Nor were the two brief statements made subsequent to the erroneously admitted one — the one in the car with the police and the other on the telephone with his family — in any different vein.

On the other hand, the tainted statement, independently and noncumulatively, told a tale by which, although the defendant attempted to portray the events of the fatal night as ones culminating in an accident, it readily could have led the jury to believe his motive was robbery, since it included, for the first time, a recounting of how Angelos had started to count his day’s receipts immediately before he was killed. Moreover, this dovetailed particularly in its timing, with what might otherwise have been the less significant fact that, when Angelos’ body was found, he was clutching money in his hand.

Furthermore, other condemnatory evidentiary interaction between the tainted statement’s factual recital and the People’s properly admitted proof at trial came to depend on the defendant’s assertion therein that the gun went off, presumably by accident, after defendant had placed it on the bar behind which Angelos was standing. This became the very vulnerable target of the People’s forensic evidence, which was offered to establish not only that Angelos had been shot after he had already fallen, or been pushed, to the floor, but, as a not inconsequential byproduct, to undermine the credibility of defendant’s story as a whole.

In all, on the record here, we conclude as a matter of law that it cannot be said beyond a reasonable doubt that the erroneously admitted statement did not contribute to the defendant’s conviction.

Accordingly, the order of the Appellate Division should be reversed, the tainted statement suppressed, and the case remitted to Supreme Court, Queens County, for a hearing on the admissibility of the first two statements and for a new trial in accordance with this opinion.

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

Order reversed, tainted statement suppressed, and case remitted to Supreme Court, Queens County, for further proceedings in accordance with the opinion herein.

       Defense counsel also sought to have these confessions suppressed on the ground that the right to counsel had attached when the defendant allegedly asked his mother to call attorney Lester. Though the hearing court never resolved the issue of credibility that arose over whether he had made such a request in the presence of the police, our disposition of this appeal makes resolution of that issue unnecessary at this time.