text:
    The People of the State of New York, Respondent, v Ronald H. Krom, Appellant.
    Argued January 9, 1984;
    decided February 23, 1984

      POINTS OF COUNSEL

      Gary Greenwald for appellant.
    I. The holding of People v Cunningham (49 NY2d 203) mandates reversal as a matter of law. (People v Donovan, 13 NY2d 148; People v Arthur, 22 NY2d 325; People v Hobson, 39 NY2d 479; People v Settles, 46 NY2d 154; People v Rogers, 48 NY2d 167; People v Samuels, 49 NY2d 218; People v Skinner, 52 NY2d 24; People v Beam, 57 NY2d 241; People v Yut Wai Tom, 53 NY2d 44; People v Kasmarick, 52 NY2d 322.) II. The court below committed error by not applying the rule set forth in Edwards v Arizona (451 US 477). (Miranda v Arizona, 386 US 436; Massiah v United States, 377 US 201; United States v Henry, 447 US 264; Brewer v Williams, 430 US 387; Rhode Island v Innis, 446 US 291.) III. The court below committed error by applying the holding of the dissent in People v Knapp (57 NY2d 161) as controlling authority. (People v Cunningham, 49 NY2d 203; People v Heller, 33 NY2d 314; People v Munoz, 40 AD2d 337, 33 NY2d 998; Garvey Carting & Stor. v State Tax Comm., 27 AD2d 337; People v Bneses, 91 Misc 2d 625; People v Skinner, 52 NY2d 24; Brewer v Williams, 430 US 387; Edwards v Arizona, 451 US 477; United States v Mohabir, 624 F2d 1140; People v White, 56 NY2d 110.) IV. The court below erred in holding that the admission into evidence of appellant’s statements taken in violation of appellant’s right to counsel was “harmless error”. (People v Crimmins, 36 NY2d 230; People v Schaffer, 56 NY2d 448; People v Weinman, 90 AD2d 220.) V. The trial court’s charge on the voluntariness of defendant’s statements was error. (People v Bradner, 107 NY 1; People v McLucas, 15 NY2d 167; Cancemi v People, 18 NY 128; People v Miles, 289 NY 360; People v Cunningham, 49 NY2d 203; People v Griswold, 58 NY2d 633; People v Pepper, 53 NY2d 213; People v Marr, 50 NY2d 456.) VI. The court below erred as a matter of law by failing to apply the rule set forth in Sandstrom v Montana (442 US 510). (People v Marr, 50 NY2d 456.) VII. Appellant’s conviction should be reversed because of the dual roles played by Mr. Leopold, his former attorney. (People v Shinkle, 51 NY2d 417; Mesarosh v United States, 352 US 1.) VIII. The Court of Appeals has the jurisdiction to grant to appellant relief pursuant to the authority stated in People v Shinkle (51 NY2d 417). (People v Bradner, 107 NY 1; People v McLucas, 15 NY2d 167; People v Patterson, 39 NY2d 288; People v De Jesus, 42 NY2d 519; People v Michael, 48 NY2d 1; People v Thomas, 50 NY2d 467; People v Fuller, 57 NY2d 152.) IX. The holding of Dunaway v New York (442 US 200) requires reversal as a matter of law. (Brown v Illinois, 422 US 590; People v Dunaway, 38 NY2d 812; Morales v New York, 396 US 102; Terry v Ohio, 392 US 1; Davis v Mississippi, 394 US 721; Wong Sun v United

      States, 371 US 471; People v Misuis, 47 NY2d 979; People v Rodney P., 21 NY2d 1.) X. The decision by the trial court to allow appellant to proceed pro se was reversible error. (People v Reason, 37 NY2d 351; People v McIntyre, 36 NY2d 10; Johnson v Zerhst, 304 US 458; People v Fruehwirth, 83 AD2d 975; Faretta v California, 422 US 806.) XI. The court below was in error in finding that the trial court did not violate appellant’s right when it terminated the pro se representation without a hearing. (Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; People v Reason, 37 NY2d 351; People v Yates, 45 AD2d 778; People v Pippin, 67 AD2d 413; People v Nelson, 72 AD2d 64; Rogers v Richmond, 365 US 534; Jackson v Denno, 378 US 368; Manson v Brathwaite, 432 US 98; Patterson v New York, 432 US 197.) XII. The court below erred as a matter of law in its finding that the County Court did not err in denying defendant’s motion for a mistrial, upon the termination of the pro se representation. (Hall v Potoker, 49 NY2d 501; People v Young, 48 NY2d 995; People v Michael, 48 NY2d 1; Faretta v California, 422 US 806.) XIII. The trial court erred in refusing to disqualify Juror Noble for cause. (People v Moorer, 77 AD2d 575; People v Branch, 46 NY2d 645.) XIV. The District Attorney’s summation to the jury was inflammatory and prejudicial beyond proper limits so as to abrogate defendant’s right to a fair trial. (People v Ashwal, 39 NY2d 105; People v Crimmins, 36 NY2d 230; People v Shanis, 36 NY2d 697; People v Lovello, 1 NY2d 436; Williams v Brooklyn El. R. R. Co., 126 NY 96; People v Richards, 78 AD2d 664; People v Rivera, 75 AD2d 544; People v La Cava, 75 AD2d 997; People v Wise, 74 AD2d 929.) XV. The holding that the statements of defendant while en route to the jail were spontaneous was error as a matter of law. (People v Di Biasi, 7 NY2d 544; People v Waterman, 9 NY2d 561; People v Meyer, 11 NY2d 162; People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154; Rhode Island v Innis, 446 US 291; Edwards v Arizona, 451 US 477; Brewer v Williams, 430 US 387; People v Grimaldi, 52 NY2d 611; People v Lanahan, 55 NY2d 711.)

      Stephen F. Lungen, District Attorney, for respondent.
    I. All statement^ made by appellant and the fruits flowing therefrom were properly admitted by the trial court. (People v Cunningham, 49 NY2d 203; People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154; People v Rogers, 48 NY2d 167; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; Dunaway v New York, 442 US 200; People v Knapp, 57 NY2d 161; People v Hawkins, 55 NY2d 474.) II. The rule announced by the United States Supreme Court in Edwards v Arizona (451 US 477) was not violated. (Miranda v Arizona, 384 US 436; North Carolina v Butler, 441 US 369.) III. The trial court’s charge on voluntariness was correct. (People v Griswold, 84 AD2d 854; People v Pepper, 53 NY2d 213; People v Graham, 55 NY2d 144.) IV. The court’s determination to allow appellant to proceed pro se was correct. (Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; People v Reason, 37 NY2d 351; People v Sawyer, 57 NY2d 12.) V. Appellant was competent to stand trial. (People v Miller, 84 Misc 2d 310; People v Peterson, 40 NY2d 1014.) VI. The replacement of counsel and continuation of trial was proper. (People v McIntyre, 36 NY2d 10; People v Michael, 48 NY2d 1; Hall v Potoker, 49 NY2d 501.) VII. Juror Noble was properly retained on the jury panel. VIII. Appellant was not denied a fair trial by the transfer of Leopold. (People v Shinkle, 51 NY2d 417.) IX. The suppression epurt was correct in its finding of fact and conclusions of law. (People v Prochilo, 41 NY2d 759; People v Yukl, 25 NY2d 585, 400 US 851; People v Moore, 66 AD2d 906; People v Maerling, 46 NY2d 289; People v Liccione, 63 AD2d 305; People v Knuckles, 51 AD2d 835; People v Pooler, 41 AD2d 1011, 34 NY2d 772; People v Hopkins, 86 AD2d 937; People v Byers, 71 AD2d 77.) X. The court’s charge to the jury was proper in all respects. (Sandstrom v Montana, 442 US 510; People v Thomas, 50 NY2d 467; People v Getch, 50 NY2d 456; People v Johnson, 185 NY 219; People v McCallam, 103 NY 587; People v Leahy, 60 AD2d 558; People v Hurel, 60 AD2d 537; People v Green, 50 NY2d 891; People v Gray, 71 AD2d 295; People v Marr, 50 NY2d 456.) XI. The remarks of the District Attorney during summation did not deprive appellant of a fair trial. (People v Crimmins, 36 NY2d 230; People v Alicea, 37 NY2d 601; People v Steinhardt, 9 NY2d 267; People v Petrucelli, 44 AD2d 58; People v Williams, 46 NY2d 1070; People v Ashwal, 39 NY2d 105; People v Safian, 46 NY2d 181; People v Broady, 5 NY2d 500; People

      v Shields, 58 AD2d 94, 46 NY2d 764; People v Dawson, 50 NY2d 311.)
   OPINION OF THE COURT

Wachtler, J.

The primary question on this appeal concerns the admissibility, under the State Constitution, of statements concerning the whereabouts of a kidnap victim made by the kidnapper to the police after he had been arrested and had asserted his right to counsel. The trial court held that the defendant’s rights had not been violated and that all his statements were admissible. He was subsequently convicted of felony murder and related offenses at a jury trial. The Appellate Division affirmed the conviction concluding that some of the statements, made after the defendant had led the police to the victim’s body, should have been suppressed but that the error was harmless under the circumstances. The defendant appeals.

In May, 1977 the victim, Trudy Farber, resided with her husband Roger at Sackett Lake, New York. Both of the Farbers had jobs outside the home. On the evening of May 24, 1977, Roger Farber arrived home with his business partner at approximately 5 o’clock. After entering the house, they encountered a man wearing a ski mask who was armed with a rifle. The man motioned them to the floor and tied their hands behind their backs. The man then showed Roger Farber a note asking when Trudy was expected home and was told she should be back about 5:30. The man informed Farber, with another note, that he should not call the police or the FBI and that Trudy’s father, Harry Resnick, “would be contacted”. When Trudy Farber arrived soon thereafter, the man abducted her and led her at gunpoint through the woods at the rear of the premises.

After freeing himself, Roger Farber called his father-in-law and the FBI. The State Police and the local Sheriff’s office were also notified. With the consent of Farber and the Résnicks, wire taps were placed on their telephones. At approximately 6:30 that same evening a man telephoned Mr. Resnick and demanded a million dollars ransom for his daughter’s safe return. Resnick agreed to try to raise the money. The next evening at about 11 o’clock a man called and asked for Mr. Resnick. This call was answered by Roger Farber. Although the caller immediately hung up, Farber was able to identify the voice as that of the defendant. Farber had known the defendant for several years. Their parents had been business associates at one time, they had hunted together on at least one occasion, and, more recently, the defendant had asked Farber to invest in a bar.

On the morning of May 26,1977 two State Police investigators, Fuente and Chandler, went to the defendant’s home where he resided with his parents. In the garage they noticed an orange Corvette which seemed to fit the description of a car seen by neighbors near the Farber residence at the time of the kidnapping. When the defendant came out, Fuente informed him that they were trying to find Trudy Farber, who had been kidnapped, and that they believed the defendant may have information which might help them. Fuente noted the results of the investigation thus far with respect to the car and the identification of the defendant’s voice by the victim’s husband. He also advised the defendant of his rights under Miranda v Arizona (384 US 436). The defendant said that he did not want a lawyer and told the police that he might know “something” or someone who knew where the victim was. However the defendant wanted $400,000 for the information. He then entered his car and attempted to start it, but Chandler removed the keys and Fuente asked the defendant to come to the police station to see if he could assist in the investigation. Defendant agreed to go with the officers.

At the police station the defendant continued to demand large sums of money for information concerning the victim’s whereabouts and asked the police to produce the victim’s father so that arrangements could be made for payment. He repeatedly stated that the victim was safe and that he would lead them to her if her father would agree to meet his monetary demands. At other times he stated that he did not know where the victim was, or “exactly” where she was, and refused to provide any information without compensation. On several occasions he suggested that the victim’s husband was involved in the kidnapping and that the police should, seek his assistance. He admitted, however, that he had made the two phone calls demanding $1,000,000 in ransom money. During the discussions he stated that he would accept $400,000 and later reduced his demands to $300,000 indicating that $100,000 would be paid to the victim’s husband. Indeed, in the officer’s presence, he drafted a written agreement for the victim’s father, to sign assuring the payment of the money demanded. He also drafted another agreement for the police to sign which, in essence, granted him immunity for his cooperation. When the officers stated that they could not sign such an agreement, the defendant started to leave. At that point the officers informed him that he was under arrest. The defendant then asked to speak with a lawyer and all questioning ceased.

The defendant initially requested a Florida attorney but when the police suggested that might be impractical, the defendant called a local attorney who had previously represented his family. When the attorney came to the station house the defendant informed him that he could not pay his fee, unless he received the money demanded of the victim’s father. The attorney left after informing the defendant, and the police, that he would not represent the defendant and had recommended that the defendant call Legal Aid.

The police asked the defendant if he wanted to consult with a Legal Aid lawyer; the defendant replied that he would act as his own attorney. He also persisted in his refusal to provide the police with any information concerning the victim and repeated his request that the police produce the victim’s father so that a financial arrangement could be made. In addition, he reduced his demands and stated that he would take them to Trudy Farber if her father agreed to pay his attorney’s fees, bail, and $10,000 for “expenses”.

Later that evening the victim’s father met the defendant at the police station and agreed to make these payments. The defendant briefly reasserted his demand for $400,000, but when the police protested that that was not “the deal”, the defendant jumped up and said “Let’s go”.

The defendant was placed in a police car and directed the officers to a wooded area in an adjoining county. He removed some leaves and branches from the ground revealing a grave-shaped hole containing a large box with a lock on the lid. He also produced a key from under a nearby rock. When the box was opened the police found the body of Trudy Farber. A subsequent autopsy showed that she had died of suffocation. At that location the police also found a rifle, ski mask, and clothing fitting the description of the items used by the kidnapper. A sales record, found prior to trial, showed that the defendant had purchased the rifle a short time before the kidnapping.

The police informed the defendant that he was now being held for murder arid noted that there were bullet holes in the lid of the box. The defendant stated that he had tried to ventilate the box by shooting holes in the lid before he placed the victim in it. He also stated that he had returned the next day, opened the box, and had offered Mrs. Farber food and something to drink, but she had refused the food. After being returned to the station house, the defendant gave a full oral confession in response to police questioning.

At about midnight the defendant was arraigned before a Town Justice. He was then transported to the county jail by two police officers who had not been involved in the prior questioning. Without any prompting from the officers, the defendant again provided a full narrative of the kidnapping.

The defendant was indicted for felony murder, kidnapping and burglary. He made a pretrial motion to suppress all of the statements he had made to the police. After a hearing the court denied the motion. The suppression court found that the police questioning of the defendant “became custodial” when they removed the keys from his car at his home. The court noted, however, that “the police were not merely investigating an antecedent crime, but were conducting an investigation during a crime in progress, one of their main purposes, if not the main purpose, being to save the life of the victim”. The court also held that the statements allegedly made by the defendant on the way to jail “were not the result of interrogation, suggestion, or prompting, and were spontaneously volunteered”. The court concluded that those statements made by the defendant “which were the result of interrogation, and any volunteered thereafter, were not made in violation of any of his constitutional rights”. The statements were later admitted at a jury trial and the defendant was found guilty as charged.

The Appellate Division affirmed holding that the police did not violate the defendant’s State constitutional right to counsel by questioning him concerning the victim’s whereabouts after he had been arrested and had asserted his right to counsel, because this type of questioning falls “within the missing person investigation emergency exception” (91 AD2d, at p 44). However, the court found that the emergency ended once the victim’s body was discovered, and therefore the trial court should have suppressed the statements the defendant subsequently made in response to police questioning. Nevertheless, the court concluded that the error was harmless because “[a]t the very most, defendant’s statement after discovery of the body was cumulative, and there is not the remotest possibility that its erroneous admission affected the jury’s verdict” (91 AD2d, at pp 44-45).

On this appeal the defendant raises a number of issues most of which relate to the admissibility of the various statements he made to the police. He urges that the police lacked probable cause to arrest him at his home and that all his statements were therefore tainted (Dunaway v New York, 442 US 200). In this regard the finding of the lower courts that there was probable cause for the arrest involves a mixed question of law and fact, is supported by evidence in the record, and thus is beyond furthér review in this court (see, e.g., People v Alexander, 37 NY2d 202; People v Rizzo, 40 NY2d 425). It is the defendant’s primary contention, however, that all of the statements he made in custody after he asked to speak to an attorney should be suppressed because they were obtained in violation of his right to counsel under the State Constitution. He also raises related points, including a contention that his right to counsel under the United States Constitution was violated.

With respect to the Federal constitutional right the defendant relies on Edwards v Arizona (451 US 477). In that case the Supreme Court stated (at pp 484-485) that a defendant who has “expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police”. The case now before us does not indicate any breach of that restriction.

A more substantial argument is presented by the defendant’s reliance on the State constitutional right to counsel which generally affords broader protections than. its Federal counterpart (People v Hobson, 39 NY2d 479, 483-484). The defendant places special reliance on People v Cunningham (49 NY2d 203) in which we stated (at p 205): “[0]nce a suspect in custody requests the assistance of counsel, he may not be questioned further in the absence of an attorney. We intend by our holding to make it clear that an uncounseled waiver of a constitutional right will not be deemed voluntary if it is made after the right to counsel has been invoked”. The application of this rule to the defendant’s statements, made at a time the police were attempting to find the missing woman and after he invoked his right to counsel, poses a novel question. The issue was previously discussed in People v Knapp (57 NY2d 161). However, this is the first case to reach our court in which the issue was properly preserved for appellate review at the suppression hearing.

The rule precluding the police from questioning a person in the absence of counsel, once the right to counsel has indelibly attached under the State Constitution, is exceptional because it represents a departure from the. general rule that constitutional rights may be waived, provided only that the waiver is voluntary and knowing (Johnson v Zerbst, 304 US 458). The special requirement imposed by the State Constitution is designed to protect the accused from the coercive power of the State intent on prosecuting him for a criminal offense (People v Hobson, supra). It brings to criminal prosecutions the ethical principle which has long applied to civil cases, even “the least-consequential civil matter” (People v Hobson, supra, at p 484), that “[o]nce a matter is the subject of a legal controversy any discussions relating thereto should be conducted by counsel” (People v Settles, 46 NY2d 154,164). Thus the rule has been broadly applied in cases where the only purpose of the police inquiry was to solve a crime or gather evidence against the defendant for trial (see, e.g., People v Hobson, 39 NY2d 479, supra; People v Singer, 44 NY2d 241; People v Settles, 46 NY2d 154, supra; People v Rogers, 48 NY2d 167; People v Skinner, 52 NY2d 24; People v Bartolomeo, 53 NY2d 225).

In none of these cases did the life or safety of the victim depend on the success of the police investigation. Application of the rule to such an investigation would involve more than a purely logical extension because it would bring the rule into conflict with other principles, equally well settled in the law, concerning the power of the police to respond to emergencies consistent with constitutional limitations.

A primary role of the police is to prevent crime and provide emergency assistance to those whose lives may be in danger. Once a crime has been committed the police generally assume their secondary role of attempting to apprehend the person responsible, and gathering sufficient evidence to obtain a conviction. A rule which prohibits the police from questioning a person represented by counsel unless the attorney is present, naturally limits the investigative techniques available to the police (People v Middleton, 54 NY2d 474). When the sole purpose of the investigation is to solve a crime or obtain evidence needed to secure a conviction, this restriction has often meant that the guilty party must go free. But if the same restriction is imposed in cases where the police are engaged in their primary duty of attempting to provide assistance to a person whose life is, or may be, in danger, there is the additional risk that delay or frustration of the investigation may result in death or injury of the victim.

In Fourth Amendment cases this court and others have recognized an emergency exception which permits the police to enter premises, without a warrant or probable cause to believe that a crime has been committed, in order to search for a person who is missing and may be in danger (People v Mitchell, 39 NY2d 173). In that case we observed (at p 180, quoting from Warden v Hayden, 387 US 298-299) that “ e[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others’ ”. Delay of the investigation may also prove fatal to the missing person when it is occasioned by the inability of the police to employ the usually less-intrusive technique of making inquiry of all persons, even those who may be represented. by counsel, if they are likely to have, or actually claim to have, information of the person’s whereabouts.

The emergency exception adopted in the Fourth Amendment cases undoubtedly reflects the reasonableness standard incorporated in that amendment. However, the State constitutional right to counsel is also subject to limitations dictated by reason and policy. The police are not obligated to silence a talkative defendant. Spontaneous statements made after the right to counsel has indelibly attached are admissible even though they may be said to represent an implicit waiver of the right to counsel in the absence of an attorney (see, e.g., People v Rivers, 56 NY2d 476; see, also, People v Bryant, 59 NY2d 786). We have also held that a defendant who after being arrested offers the policeman a bribe, is not immune from further questioning with respect to the bribe merely because he asserted his right to counsel at the time of his initial arrest (People v Middleton, 54 NY2d 474, supra). We noted (at p 482) that a contrary holding would “unrealistically * * * limit investigatory procedures relating to bribe offers”. We have also observed that the right to counsel may not be used as a “shield” so as to permit a defendant to commit new crimes with impunity while in police custody (People v Mealer, 57 NY2d 214, 218; see, also, People v Ferrara, 54 NY2d 498, 508). Similarly, any extension of the right to counsel which would hinder the police in the performance of their emergency duties is also unwarranted.

When the police are searching for a person who has recently disappeared, the need to provide prompt assistance is not terminated once the police learn that the person has been abducted. Even if the suspected kidnapper has been arrested the police emergency role may continue as long as the victim’s whereabouts remains unknown. It would not be reasonable or realistic to expect the police to refrain from pursuing the most obvious, and perhaps the only source of information by questioning the kidnapper, simply because the kidnapper asserted the right to counsel after being taken into custody. To hold that the special restrictions of the State right to counsel rule extend into this area of police activity would either dangerously limit the power of the police to find and possibly rescue the victim or would, perversely, permit the kidnapper to continue his ransom demands and negotiations from the sanctuary of the police station. We therefore hold that the police did not violate the defendant’s right to counsel under the State Constitution by questioning him concerning the victim’s whereabouts.

The police, however, should not have continued to question the defendant in the absence of counsel once the victim’s body was found. At that point the questioning could only serve to provide evidence for use against the defendant at trial. That is precisely the type of police inquiry in which the State right to counsel was intended to provide the accused with added protection by prohibiting the police, and prosecutors, from questioning him in the absence of counsel when he had previously asserted the right during the police investigation (People v Cunningham, supra; People v Skinner, 52 NY2d 24, supra; People v Singer, 44 NY2d 241, supra). As noted, that would not preclude the defendant from making spontaneous statements. Although the defendant contends that none of his statements were spontaneous, that issue is beyond the scope of our review. The determination made by the lower courts, that any statements he made on the way to jail were spontaneous, involves another mixed question of law and fact which is supported by evidence in the record, and thus poses no question of law for this court to consider (People v Bryant, supra; People v Rivers, supra; People v Harrell, 59 NY2d 620). In sum, the Appellate Division correctly held that the only statements which should have been suppressed were the oral confession the defendant made in response to police questioning, after the victim’s body was found, and before the defendant began his trip to the county jail.

The defendant also argues that the Appellate Division erred in concluding that the admission of the improperly obtained confession was harmless error. He contends that all of his statements prior to discovery of the body “can be characterized as an attempt to sell information as to the whereabouts of a missing person” and that without his subsequent statements he would not have been implicated in her death. This argument erroneously assumes that the defendant’s final confession, made on the way to jail, is also inadmissible. Since the first confession is essentially the same as the later spontaneous one, its admission was cumulative as the Appellate Division observed. In addition, the jury properly had before it evidence, including the defendant’s own admission, that he had made the two ransom phone calls, that even after his arrest he continued to negotiate his monetary demands, and that when he led the police to the victim’s body, the officers found at the scene the rifle and other tokens of the kidnapper, which were shown at the trial to have been purchased by the defendant or were otherwise connected with him. In light of all this evidence identifying the defendant as the kidnapper, there is no reasonable possibility that the jury would have reached a different conclusion had it been informed that after the defendant led the police to the victim’s body he made only one full oral confession, instead of two virtually identical ones.

We have considered the defendant’s other arguments and find that most of them have not been preserved for review and that the remaining ones lack merit.

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

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

Order affirmed.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Charles Davis, Appellant.
    Argued January 12, 1984;
    decided February 23, 1984

      POINTS OF COUNSEL

      Marla Tepper and William E. Hellerstein for appellant.
    Under State evidentiary law, the prosecutor’s highly prejudicial comments in summation regarding appellant’s post-arrest silence were improper given the ambiguity of the silence under the circumstances. (People v Conyers, 52 NY2d 454; People v Rothschild, 35 NY2d 355; People v Crimmins, 36 NY2d 230; People v Ashwal, 39 NY2d 105; People v Gonzalez, 38 NY2d 208; People v Stanard, 32 NY2d 143; People v Manganaro, 218 NY 9; People v Wilkinson, 43 AD2d 565.)

      Mario Merola, District Attorney {Allen H. Saperstein and Peter D. Coddington of counsel), for respondent.
    I. There was overwhelming evidence of appellant’s guilt. (People v Goodman, 54 NY2d 451.) II. Since appellant spoke when apprehended by the police, it was proper for the prosecutor at trial, in the absence of objection, to question appellant about this subject and to comment during summation upon the credibility of appellant’s testimonial claim that he had never said anything to the police. (People v Dobranski, 89 AD2d 250; People v Conyers, 52 NY2d 454; People v Bowen, 50 NY2d 915; People v Lewis, 79 AD2d 977; People v Davis, 58 NY2d 1102; People v Pavao, 59 NY2d 282; People v Gibbs, 59 NY2d 930; People v Williams, 46 NY2d 1070; People v Argibay, 45 NY2d 45; Wainwright v Sykes, 433 US 72.)
   OPINION OF THE COURT

Kaye, J.

In People v Conyers (52 NY2d 454) we held that evidence of a defendant’s silence at the time of arrest is inadmissible for impeachment purposes in the absence of unusual circumstances. On this appeal defendant contends that Conyers requires reversal of his conviction. We hold that it does not.

In September, 1979 the police were summoned to an apartment building in The Bronx by one John Puig, who reported that defendant was inside the building and was carrying a revolver. There was then an outstanding bench warrant for defendant’s arrest on an unrelated matter. When defendant emerged from the rear of the building, Puig alerted the police, whereupon defendant took flight, with the police, including both uniformed and plain-clothes officers, in pursuit. The chase ended in an exchange of shots in an alley, where defendant was wounded and then arrested. Defendant was charged with three counts of attempted murder in the first degree and one count of criminal possession of a weapon in the second degree.

At trial, the police testified that during the chase they shouted to defendant and ordered him to stop. In support of the People’s contention that defendant knew his intended victims were police, two of the arresting officers testified that after defendant was apprehended and was confronted by the arresting officers he stated, “I should have killed you when I had the chance,” and spit on one of the officer’s shoes. This testimony was central to the People’s contention that defendant had the requisite knowledge and intent for attempted murder (of a policeman) in the first degree. (See Penal Law, §§ 110.00, 125.27, subd 1, par [a], cl [i].)

Appellant testified that Puig had previously threatened him and that he did not know the men chasing him were police officers, but thought they were Puig’s friends who were out to “get” him, and that he fled, and ultimately fired upon his pursuers, because of that fear. When asked by the prosecutor, without objection, if he spoke to the officers at the time of his arrest, defendant testified that he said nothing. In his summation, defense counsel argued that defendant became aware that his pursuers were police officers “only after the shooting had stopped,” that while he “may have cursed at them” he did not do or say what the officers attributed to him upon his arrest, and that the officers who testified to the contrary were lying in an attempt to cover up the fact that they had shot defendant in the back.

During his summation, in the course of challenging the credibility of defendant’s testimony, the prosecutor argued:

“[Defendant] says that the police came into the alleyway and he knew they were police officers. Now here’s a fellow who wants you to believe that he was protecting his own life, that he thought they were the bad guys out there. They come in, and does he say, ‘Oh my God, it’s the police, it’s been a big misunderstanding, I thought you were Puig’s friends, I thought you were there to hurt me, I didn’t know you were the police’? He’s being handcuffed, put in an ambulance and taken away under police escort and he tells you he said absolutely nothing to the police. When I asked him, ‘Did you say anything at all’ he said, T didn’t say anything to them.’ Is that how someone who is the innocent, the innocent victim, is that how he reacts? Wouldn’t he have said something more consistent with his position? Would he have really stood there and said nothing while handcuffs are being put on him?

* * *

“Now, he’s got absolutely no obligation whatsoever to say anything. He doesn’t have to say a word to anybody but you apply your own common sense, your own everyday knowledge.”

Defense counsel’s objections to these comments were sustained. After the charge, defense counsel moved for a mistrial, contending that “given the testimony of Mr. Davis [that] he didn’t say anything * * * I’m sure the law is so clear that this defendant’s silence cannot in any way be used against him.” The Trial Judge agreed that the comments were improper but denied the motion for a mistrial. The prosecutor then suggested that a curative instruction be given to the jury that “if they believe [defendant] said nothing, they can draw no inference from the fact that he said nothing and he has no obligation to say anything to [police officers] at the time he’s arrested.” Defense counsel objected to such an instruction and none was given. Defendant was convicted of one count of attempted murder in the second degree, two counts of attempted assault in the first degree, and criminal possession of a weapon in the second degree. The Appellate Division, two Justices dissenting, affirmed the conviction.

Defendant now urges that his conviction must be set aside because, under Conyers, a defendant’s postarrest silence may not be used for impeachment purposes, as the prosecutor did in his summation. Because Conyers does not establish such a per se rule, and does not apply to the facts of this case, we affirm.

In Conyers, it was undisputed that defendant stood silent at the time of arrest. We held that because defendant’s silence in those circumstances was ambiguous, evidence of such silence was inadmissible to impeach his later exculpatory testimony. By contrast, here the evidence of defendant’s postarrest silence came in without objection, and a key issue is whether defendant was indeed silent at the time of arrest. The prosecution contended that defendant made inculpatory statements. Defendant himself put the question of his silence in issue by testifying that he said nothing to the police at his arrest, .thereby disputing the prosecution testimony. The credibility of the testimony of defendant and of the arresting officers on this point was commented upon in closing argument by counsel for both sides.

This is not a case, like Conyers, where the prosecution tried to use evidence of the fact of a defendant’s postarrest silence against him by contending that such silence itself renders a later exculpatory version of events incredible. Here the defendant testified as to his postarrest silence, contradicting the prosecution witnesses, and the prosecutor attacked the veracity of defendant’s testimony upon summation. In such a situation, the prosecutor’s statements on summation about whether defendant was or was not silent at the time of his arrest concerned a key issue of fact.

Given these circumstances, the mistrial demanded by defendant was in no event required. While the prosecutor’s summation improperly invited the jury to draw an unwarranted inference of guilt from defendant’s testimony that he had been silent at his arrest, a curative instruction could have helped insure that such an inference would not be drawn. Defendant, however, objected to the prosecutor’s suggestion that such an instruction be given. In view of defendant’s objection, the failure to give such an instruction cannot now be a ground for upsetting his conviction.

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

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

Order affirmed.


author: Jasen, J.

text:
    Michael Mitchell et al., Plaintiffs, v New York Hospital, Defendant and Third-Party Plaintiff-Appellant. Syska & Hennessy, Inc., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendant.
    Argued January 3, 1984;
    decided February 23, 1984

      POINTS OF COUNSEL

      Barry Jacobs and Richard T. Farrell for defendant and third-party plaintiff-appellant.
    I. Having entered into the stipulation under review, the third-party defendants-respondents have effectively waived the provisions of section 15-108 of the General Obligations Law and have rendered that statute irrelevant to this case. (Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435; Bond v Bond, 260 App Div 781, 261 App Div 835; Young & Co. v Leong, 53 AD2d 515, 40 NY2d 984; Alwinseal, Inc. v Travelers Ind. Co., 61 AD2d 803; Matter of Dolgin Eldert Corp., 31 NY2d 1; Matter of New York, Lackawanna & Western R. R. Co., 98 NY 447; Brady v Nally, 151 NY 258; Tepper v Tannenbaum, 83 AD2d 541; Martin v City of Cohoes, 37 NY2d 162; Cullen v Naples, 31 NY2d 818.) II. The intent of section 15-108 of the General Obligations Law has been frustrated. (Rock v Reed-Prentice, 39 NY2d 34; Loucks v Standard Oil Co., 224 NY 99; Intercontinental Hotels Corp. v Golden, 15 NY2d 9; Vey v Port Auth. of N. Y. & N. J., 54 NY2d 221; Kenny v Fuller Co., 87 AD2d 183; Dole v Dow Chem. Co., 30 NY2d 143; Kelly v Long Is. Light. Co., 31 NY2d 25; Klinger v Dudley, 41 NY2d 362; Matter of Dolgin Eldert Co., 31 NY2d 1; Matter of New York, Lackawanna & Western R. R. Co., 98 NY 447.)

      Robert M. Callagy and Ronald R. Papa for Syska & Hennessy, Inc., third-party defendant-respondent.
    I. The court below properly concluded that, by obtaining its own release from liability through a prejudgment settlement, the Hospital is precluded under subdivision (c) of section 15-108 of the General Obligations Law from seeking contribution from any other tort-feasor. (Rock v Reed-Prentice, 39 NY2d 34; Maryland Cas. Co. v State of New York, 66 AD2d 953; McBride v Plotnick, 92 Misc 2d 639; Lettiere v Martin Elevator Co., 62 AD2d 810, 48 NY2d 662; Flood v Re Lou Location Engr., 487 F Supp 364, affd sub nom. Flood v Japan Line, 636 F2d 1201; State of New York v County of Sullivan, 43 NY2d 815; T. W. Oil v Consolidated

      Edison Co., 57 NY2d 574; Martin v City of Cohoes, 37 NY2d 162; Dole v Dow Chem. Co., 30 NY2d 143; McDermott v City of New York, 50 NY2d 211.) II. In addition to subdivision (c) of section 15-108 of the General Obligations Law, independent grounds exist for affirming the grant of summary judgment by the court below. (Andre v Pomeroy, 35 NY2d 361; Haig v Channing Co., 54 AD2d 992; Koch v Haven-Busch Co., 41 AD2d 774; Rosenberg v Del-Mar Div., 56 AD2d 576.)

      Anthony J. McNulty and A. Paul Goldblum for Wolf & Munier, Inc., third-party defendant-respondent.
    New York Hospital has no claim for contribution against the remaining third-party defendants. (Morrill Realty Corp. v Rayon Holding Corp., 254 NY 268; Matter of Dolgin Eldert Corp., 31 NY2d 1; D'Ambrosio v City of New York, 55 NY2d 454; Rock v Reed-Prentice, 39 NY2d 34; Maryland Cas. Co. v State of New York, 66 AD2d 953; Mielcarek v Knights, 50 AD2d 122; Blasch v Chrysler Motors Corp., 93 AD2d 934; Bonnot v Fishman, 88 AD2d 650, 57 NY2d 870; State of New York v County of Sullivan, 54 AD2d 29, 43 NY2d 815; Bay Ridge Air Rights v State of New York, 44 NY2d 49.)

      Morgan Kennedy, Benjamin J. Sergi and Thomas E. Paterson for Utilex Demolition, Inc., third-party defendant-respondent.
    Defendant and third-party plaintiff, New York Hospital, is barred from pursuing third-party actions against third-party defendants for contribution. (Rock v Reed-Prentice, 39 NY2d 34; McDermott v City of New York, 50 NY2d 211; Lettiere v Martin Elevator Co., 62 AD2d 810, 48 NY2d 662; State of New York v County of Sullivan, 43 NY2d 815.)
   OPINION OF THE COURT

Jasen, J.

On this appeal, we are asked to decide whether subdivision (c) of section 15-108 of the General Obligations Law, which prohibits a settling tort-feasor from obtaining contribution from another person, can be waived by agreement of all parties to the litigation.

Michael Mitchell, one of the plaintiffs in the underlying action, was employed by third-party defendant, Wolf & Munier, Inc. (W & M), as a steamfitter. On August 20, 1976, he was working at defendant third-party plaintiff New York Hospital (Hospital) replacing steam boilers and performing other tasks related to the renovation of the Hospital’s steamroom when he sustained personal injuries as a result of being scalded by steam or hot water which escaped from a ruptured pipe.

Plaintiff brought suit against the Hospital in September, 1977, alleging, inter alia, that the Hospital failed to provide plaintiff with a safe place to work. The Hospital commenced a third-party action for contribution and indemnification in March, 1980 against W & M, Syska & Hennessy, Inc. (S & H), the professional consulting engineer on the project, Utilex Demolition, Inc. (Utilex), the demolition contractor, and Regal Insulation Corp., the insulation subcontractor.

Thereafter, all named parties appeared in Supreme Court, Kings County, and advised the Trial Judge that they had reached a settlement. At that time, a stipulation was read into the record, which provides, in pertinent part, that:

“It is hereby stipulated and agreed by and between all of the counsel present representing all of the named parties, that the cause[s] of action on behalf of the plaintiffs Michael Mitchell and Angela Mitchell are being settled in the sum of FIVE HUNDRED FIFTY THOUSAND DOLLARS.

“All counsel, present consent to the settlement and the reasonableness of the settlement and will not contest the reasonableness of the settlement.

“Payment of the settlement will be made by the New York Hospital, Third-party Plaintiff in . this action, which has third-party actions as against Syska and Hennessey, Utilex Demolition, Inc., Wolf and Munier, Inc., and Regal Insulation Corp.

“An application will be made to the Court to settle the third-party action so that New York Hospital may try its case for either indemnification or apportionment as against each of the named third-party defendants.

* * *

“The settlement is being placed on the record before Judge Monteleone and the case will remain on the calendar of this Court for trial on the third-party action.

“It is specifically agreed and understood by all of the Third-party Defendants here that no one waives any rights to contributions [sic] or indemnification by entering into this settlement.

“All cross-claims and counterclaims of any kind or nature in connection with that third-party claim which has been severed remain in effect”. (Emphasis supplied.)

Shortly thereafter, a jury was selected and the matter was assigned for trial of the third-party action. Before the trial got under way, third-party defendants orally moved to dismiss the Hospital’s third-party complaint for contribution contending, inter alia, that the Hospital was barred from seeking contribution by virtue of subdivision (c) of section 15-108 of the General Obligations Law. The Hospital successfully moved for a mistrial and the court directed the third-party defendants to submit their motions on formal papers.

Upon doing so, the motions were considered and denied by the Trial Judge, the court holding that by entering into the challenged stipulation the third-party defendants waived the protection offered by the statute. On appeal, the Appellate Division reversed with respect to the contribution issue, holding that the rights of the third-party defendants as to this issue “have been defined by statute, and cannot therefore be circumvented by an agreement to the contrary.” The Appellate Division also granted S & H’s motion for summary judgment on the issue of contractual indemnity and denied all other motions. After an appeal to this court was dismissed as nonfinal (59 NY2d 968), the Appellate Division granted leave and certified the following question: “Was the order of this court dated April 11, 1983 properly made?”

Whenever the enforceability of a stipulation among parties in a civil case is put in issue, we must begin our analysis with the recognition that courts have long favored and encouraged the fashioning of stipulations as a means of expediting and simplifying the resolution of disputes. (Salesian Soc. v Village of Ellenville, 41 NY2d 521, 525-526.) We have repeatedly held that, unless public policy is affronted, parties to a civil dispute are free to chart their own litigation course. (T. W. Oil v Consolidated Edison Co., 57 NY2d 574, 579-580; Rector, Church Wardens & Vestrymen of St. Bartholomew’s Church v Committee to Preserve St. Bartholomew’s Church, 56 NY2d 71, 76; Martin v City of Cohoes, 37 NY2d 162, 165.) They “may fashion the basis upon which a particular controversy will be resolved” (Cullen v Naples, 31 NY2d 818, 820) and in doing so “[t]hey may stipulate away statutory, and even constitutional rights.” (Matter of New York, Lackawanna & Western R.R. Co., 98 NY 447, 453.)

There can be no serious claim that the subject stipulation offends public policy. Far from offending our sense of justice or threatening the public welfare (Intercontinental Hotels Corp. v Golden, 15 NY2d 9, 13; Loucks v Standard Oil Co., 224 NY 99,110), the stipulation here is designed to insure the fair and prompt compensation of an injured party while reserving the right of one tort-feasor to seek contribution from the remaining wrongdoers in an effort to accomplish an equitable sharing of liability. We believe stipulations such as this effectuate, rather than affront, the public policy of this State.

The principal argument proffered by third-party defendants is that subdivision (c) of section 15-108 of the General Obligations Law, which states that “[a] tortfeasor who has obtained his own release from liability shall not be entitled to contribution from any other person”, precludes the Hospital from seeking contribution from them even though all of the parties agreed that this could be done. Their position, quite simply, is that the protection offered by the statute to nonsettling tort-feasors cannot be waived. We disagree.

A review of the historical underpinnings of the statute is necessary to demonstrate how enforcement of the agreement at issue here not only presents no affront to the Legislature’s purpose in enacting section 15-108 but will be of assistance in achieving the lawmakers’ goals of encouraging out-of-court settlements and insuring that liability will be fairly apportioned among all tort-feasors.

Prior to this court’s decision in Dole v Dow Chem. Co. (30 NY2d 143), New York law encouraged parties to settle lawsuits by insulating a settling tort-feasor from contribution claims by the remaining tort-feasors who were subsequently found liable to the plaintiff. (Occhialino, Contribution, Nineteenth Ann Report of NY Judicial Conference, 1974, pp 217-218.) Pre-Dole law, however, made little provision for equitable loss sharing among all tort-feasors. While our decision in Dole remedied the problem of disparate apportionment of liability, its suggestion that a settling tort-feasor could be held liable for contribution to nonsettling wrongdoers who would otherwise be responsible for paying more than their equitable shares of liability had the effect of discouraging out-of-court settlements. (Dole v Dow Chem. Co., supra, at pp 148-149,153; see, also, Williams v Town of Niskayuna, 72 Misc 2d 441; McLaughlin, Practice Commentary, McKinney’s Cons Laws of NY, Book 23A, General Obligations Law, § 15-108, p 717.)

Thus, in an effort to strike a better balance between the often competing policies of encouraging settlement and providing for equitable sharing of liability among tortfeasors, the Legislature enacted section 15-108. (Memorandum of Judicial Conference in support of Assembly Bill A-9192, Jan. 24,1974.) Subdivision (a) of the statute permits a plaintiff to settle with a defendant without risking the discharge of other potentially liable tort-feasors while insuring that those defendants who choose not to settle will pay no more than their equitable share of liability. Subdivision (b) was designed to remedy the problem left in the wake of the Dole, case by allowing a defendant to settle a claim and obtain his release without fear of being brought back into the action by a nonsettling defendant seeking contribution. (See Rock v Reed-Prentice, 39 NY2d 34, 41.)

In addition to these two subdivisions which were intended to encourage settlement and apportion responsibility in an equitable manner, the Legislature enacted subdivision (c) which prohibits a tort-feasor who has obtained his own release from liability from receiving any contribution from any other person. As best as can be ascertained from the available legislative history, this subdivision was adopted to preserve judicial resources by forestalling future litigation between a settling tort-feasor, who voluntarily bought his release from the case at a price he considered fair, and nonsettling tort-feasors who contested their liability at trial and prevailed in having the ultimate damage award determined to be less than the settling tortfeasor believed it would be at the time he settled. (See Rock v Reed-Prentice, supra, at p 41.) Our view of the Legislature’s purpose in enacting this subdivision is supported by the Judicial Conference’s statement that a tort-feasor who settles with a claimant by paying more than his equitable share “is a volunteer as to the excess paid by him. ‘The rule is familiar that money voluntarily paid by one person may not be recovered back.’” (Judicial Conference Report on CPLR, McKinney’s Session Laws of NY, 1974, p 1820, quoting Codling v Paglia, 38 AD2d 154, 161, 162, mod on other grounds 32 NY2d 330.)

Recognizing what the Legislature hoped to accomplish generally in enacting section 15-108, we turn to the claim of the third-party defendants who argue that the Legislature did not intend that the protection offered by subdivision (c) of the statute could be waived. We reject this view. There is nothing in the history or purpose of the legislation to indicate that the statute was intended to be nonwaivable. Indeed, in view of the Legislature’s clear pronouncement that section 15-108 was designed to encourage settlement and provide for a more equitable sharing of liability (Judicial Conference Report on CPLR, McKinney’s Session Laws of NY, 1974, pp 1816-1817), we believe that enforcement of stipulations such as the one before us will help accomplish that which the Legislature intended in enacting the statute.

The subject stipulation was freely, knowingly and openly agreed to by all of the named parties. It provides for fair and prompt compensation of the plaintiff, yet allows all of the tort-feasors to litigate, or decide among themselves, who is responsible for plaintiff’s injuries and to what degree, while armed beforehand with the knowledge of the exact amount of the monetary damages involved. Thus, by preserving the Hospital’s claims for contribution against third-party defendants, the stipulation has removed a barrier to settlement which would otherwise exist by virtue of subdivision (c) of section 15-108. It can hardly be disputed that the Hospital, a lone defendant third-party plaintiff, would rarely, if ever, settle with an injured party if it knew that by doing so it could not seek contribution by way of a third-party action against other potentially liable third-party defendants whom the plaintiff, for whatever reason, chose not to sue directly. Additionally, by providing a postsettlement vehicle whereby each tort-feasor, including the Hospital, can contest its liability vis-a-vis the others in a single proceeding, equitable sharing of liability will be more fully realized. We hold, therefore, that the stipulation should be enforced.

The cases cited by third-party defendants do not require a contrary, result as each is readily distinguishable. Lettiere v Martin Elevator Co. (62 AD2d 810, affd 48 NY2d 662) involved a stipulation, unlike the one before us, to which the nonsettling tort-feasor was not a party. Thus, even if that stipulation was intended to waive the protection afforded by subdivision (c) of section 15-108, the tort-feasor whose protection was purportedly being waived did not consent thereto and obviously could not be bound thereby. In Rock v Reed-Prentice (39 NY2d 34, supra), we were asked to enforce a settlement agreement between plaintiff and one defendant reached after judgment had been entered against the remaining defendant. It was held that subdivision (c) of section 15-108 did not even apply to that fact situation because the statute was not intended to nullify pre-existing judgments. Third-party defendants’ reliance on McDermott v City of New York (50 NY2d 211) is equally misplaced. All that was decided there was that settlement of an underlying cause of action has no effect under subdivision (c) of section 15-108 upon a claim for indemnity rather than contribution.

Finally, with respect to W & M’s claim that the Hospital cannot seek recovery against third-party defendants under the inconsistent theories of contribution and contractual indemnity, we note the well-settled rule that “a plaintiff is entitled to advance inconsistent theories in alleging a right to recovery.” (Cohn v Lionel Corp., 21 NY2d 559, 563; Siegel, Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR 3014, p 8.)

Accordingly, the order of the Appellate Division should be modified by denying third-party defendant W & M’s and Utilex’s motions for summary judgment on the issue of contribution, and, as so modified, affirmed. The certified question should be answered in the negative.

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

Order modified, with costs to appellant against respondents Wolf & Munier and Utilex, in accordance with the opinion herein and, as so modified, affirmed, with costs to respondent Syska & Hennessy against appellant. Question certified answered in the negative.

      . Regal Insulation Corp. is not a party to this appeal, the third-party complaint against it having been dismissed on consent.

      . No serious objection is raised as to the Appellate Division’s decision concerning the claims for contractual indemnity. To the extent W & M contests this issue, we need only note its concession that the record contains “some documentary evidence of the existence of such an indemnity agreement between Wolf & Munier * * * and the Hospital”.
      We further note that S&His entitled to summary judgment on the contribution issue but not for the reason given by the Appellate Division — that the Hospital was barred from seeking contribution by virtue of subdivision (c) of section 15-108 of the General Obligations Law — but, rather, because the Hospital failed to dispute evidentiary facts proffered by the president of S & H which, if believed, demonstrate that there was no negligence pn the part of S & H.
      We would only add that although it could not appeal the order below by virtue of its status as a successful nonaggrieved party, S&H, in our court, can assert lack of negligence in support of an affirmance of the relief granted by the Appellate Division because it was properly preserved and supports judgment in its favor. (Parochial Bus Systems v Board of Educ., 60 NY2d 539, 544-546.)