author: Fuchsberg, J. Jasen, J.

text:
    Alfred K. Greene, Respondent, v Maynard Hellman, Appellant, et al., Defendants.
    Argued September 4, 1980;
    decided October 21, 1980

      POINTS OF COUNSEL

      Paul J. Yesawich, III, for appellant.
    I. The decision below should be reversed because there is no proof that Driscoll had actual authority to act for Heilman. Moreover, Driscoll did not have apparent authority to act for Heilman because no representation was ever made to Greene that Heilman owned the plaza, and because Greene never relied on Driscoll’s purported ability to act for appellant. (O. A. Skutt, Inc. v J. & H. Goodwin, 251 App Div 84; Oldman-Magee Boiler Works v Ocean & Inland Transp. Co., 210 App Div 183; Ford v Unity Hosp., 32 NY2d 464; Stanton v Hawley, 193 App Div 559.) II. The lower court’s holding that the presence of Greene’s name in the purchase offer required Heilman to check with the purchaser and resolve the matter of possible commissions should be reversed because the owner’s consent to the broker’s rendition of unsolicited services does not justify a conclusion that the owner intended to enter into a contractual relationship with the broker and pay for his services. (Naum v Wiltsie, 271 App Div 169; Meltzer v Flying Fame, 224 App Div 41; McVickar v Roche, 74 App Div 397; Fowler v Hoschke, 53 App Div 327; McGrath v Bagley, 273 App Div 822; Warsawer v Burghard, 234 App Div 346; Ficor, Inc. v National Kinney Corp., 67 AD2d 659.) III. The decision below awarding plaintiff a commission should be reversed because Greene merely brought the property to the attention of the ultimate purchaser, and never effected a meeting of the minds of the buyer and seller. (Munson v Tilley, 45 AD2d 806; Newberry & Co. v Warnecke & Co., 267 App Div 418, 293 NY 698; Sibbald v Bethlehem Iron Co., 83 NY 378; Byrne, Bowman & Forshay v 488 Madison Ave., 11 Misc 2d 587, 286 App Div 826; Boyd v Improved Prop. Holding Co., 135 App Div 623; Gardner v Pierce, 131 App Div 605; Lord v United States Transp. Co., 143 App Div 437; Matter of McCrea, 47 Misc 2d 361.) IV. The decision below awarding plaintiff a commission based upon Heilman’s alleged breach of contract should be reversed because no contract claim was pleaded against Heilman and no motion to conform the pleadings to the proof was made. (Walrath v Hanover Fire Ins. Co., 216 NY 220; Northam v Dutchess County Mut. Ins. Co. of Poughkeepsie, 177 NY 73.)

      James W. Kiley for respondent.
    I. Both the trial court and the court below resolved the question of the credibility of the witnesses in plaintiff’s favor and that determination may not be disturbed by the Court of Appeals. (Foreman v Foreman, 251 NY 237; Noce v Kaufman, 2 NY2d 347.) II. The court was correct in its determination that Heilman was aware of plaintiff’s involvement and had in fact authorized defendant Driscoll to offer the plaza for sale. Consequently, whether the authority granted to Driscoll was actual or apparent, defendant Heilman is responsible for plaintiff’s commission. (Wen Kroy Realty Co. v Public Nat. Bank & Trust Co. of N. Y., 260 NY 84; Levine v Shell Oil Co., 28 NY2d 205.) III. Even assuming Heilman had not given Driscoll apparent or actual authority to sell the plaza, the facts clearly indicate Heilman ratified Driscoll’s unauthorized acts and therefore remains liable to plaintiff for his commission. (Ramsay v Miller, 202 NY 72; Hamlin v Sears, 82 NY 327; Fowler v Hoschke, 53 App Div 327.) IV. This court properly held that plaintiff was the procuring cause of the sale of the plaza to I. Gordon Realty Corporation. (Salzano v Pellillo, 4 AD2d 789; Saft v Dorn, 24 AD2d 1072, 18 NY2d 631; Kalmanson v Callahan, 276 App Div 983; Busher Co. v Galbreafh-Ruffin Realty Co., 22 AD2d 879, 15 NY2d 992.) V. Plaintiff’s first cause of action properly alleged a cause of action against defendant Heilman for breach of contract and therefore the verdict against defendant Heilman was proper. (Diamond Int. Corp. v Little Kildare, 28 AD2d 1192, 22 NY2d 819; Dampskibsselskabet Torm A/S v Thomas Paper Co., 26 AD2d 347; Diemer v Diemer, 8 NY2d 206.)
   OPINION OF THE COURT

Fuchsberg, J.

This appeal by the defendant Maynard Heilman comes to us in the context of a claim by plaintiff Alfred K. Greene, a real estate broker, who asserts he was wrongfully deprived of commissions due him on the sale of a shopping center owned by Heilman to I. Gordon Realty Corporation. Greene had been invited to procure a buyer for-the property by the defendant Richard E. Driscoll. A central issue is the applicability of the agency doctrine of apparent authority in determining whether the codefendant Driscoll’s arrangement with Greene was binding on Heilman. Disputed too is whether Greene was the procuring cause of the ultimate sale, consummated as it was directly between the buyer and seller about a year after Greene had informed Gordon that the property was for sale.

In all, the plaintiff named five defendants. Other than Heilman and Driscoll, these included two corporations and one other individual. The corporate defendants, Todd Mart, Inc. (Todd), and West Wayne Shopping Plaza, Inc. (Plaza), formerly owned the center. Heilman’s other codefendant, one Morris Diamond, like Driscoll, had served with Heilman as an officer of these and other real estate management, ownership or construction corporations.

The complaint contained three causes of action. The first, against all the defendants for breach of contract, asserted, inter alia, that mainly Driscoll and later, to a lesser extent, Diamond, each acting as an individual and as a "principal” of the two corporations, had made the arrangements to hire Greene to procure a buyer for the center and that, in doing so, they had falsely represented that Todd was its owner. Incorporating these allegations by reference, the second count sounded in fraud against Driscoll and Diamond alone, while the third rested on the theory that all the defendants had joined in a civil conspiracy to deprive the plaintiff of his commissions. In a nutshell, Heilman’s defense, aside from its general denial of the conspiracy claim, was that Driscoll had lacked authority, actual or apparent, to contract with Greene on behalf of Heilman and that, in any event, the former was not the procuring cause of the sale to Gordon.

After a nonjury trial, the trial court, largely on the conclusory rationalization that the "corporate connections” between Driscoll and Heilman "were sufficient to cloak Driscoll with the apparent authority not only to manage but to sell such properties as the corporations * * * formerly own[ed]”, handed down a decision solely against Heilman and on the contract cause of action alone. Doing so, the Judge stressed the fact that, in the written offer which immediately preceded the eventual contract to sell, the purchaser recited that he had "received a statement covering West Wayne Plaza from Alfred K. Greene”.* Reasoning that, since the plaintiff was thus "made whole by the judgment on the first cause of action no damage has ensued as a result of the alleged conspiracy [or fraud]”, the court then proceeded to dismiss the remaining counts against all those named.

Affirming the judgment entered on this decision, the Appellate Division, over a dissent by Justice Cardamone, took the position that the cited language in the purchase offer placed a burden on the defendant, presumably at his peril, "to check with the purchaser and settle with him the matter of his potential claim before accepting the offer”. It also found sufficient evidence in the record to support a finding "that the plaintiff was the procuring cause of the sale”. For his part, the dissenter, who would have reversed and directed that all three causes of action be retried, after noting that the trial court had not found that either Driscoll or Diamond had actual authority to deal with Greene on Heilman’s behalf, concluded that, as a matter of law, the alternative of apparent authority had not been established. He also disagreed with the consequences attributed by his colleagues to the purchase offer language. Since we do not find fault with either of these positions, we believe the order affirming the judgment should be reversed. Our analysis follows:

We begin with a more detailed recitation of the controlling facts, many undisputed. The initial communication relevant to the case was a conversation between Driscoll and Greene in October, 1974, during which the former indicated that he was interested in obtaining a buyer for the shopping center and certain other properties as a package. In response to Greene’s routine request for income and expense information, Driscoll immediately followed up by sending him existing operating statements prepared in the course of the management of the properties. Soon thereafter, Greene told Robert Gordon, who throughout acted for the Gordon corporation, that the center was on the market and furnished him with a photocopy of the statement. Greene admits that then and at all pertinent times thereafter he acted on the assumption that Todd, and not Heilman, owned the property and that Driscoll was acting for it. This despite the fact that Heilman’s ownership was a matter of public record, he having bought the property at a Sheriff’s sale some months earlier. It is agreed too that Driscoll never expressly did or said anything from which Greene could gather that Driscoll was acting for Heilman. Consistently, when Greene eventually elected to make a claim, he did so not by sending a bill to Heilman, but to Todd.

Perhaps most remarkably, the record is barren of even a hint that Heilman, whom a family health problem kept away from New York during most of the intervening months until the spring of 1975, was aware of Driscoll’s dealings with Greene, much less that he authorized them. Certainly, whatever motivated Driscoll to act on his own, whether it was a desire to make his marketing of the corporate properties more attractive by coupling them with this one, or whether it was a presumptuous assumption that Heilman would accept a fait accompli, or for whatever other reason best known to himself, none of these were ever shown to be acts, or even motivations, of Heilman.

These facts in mind, taking the proof most favorably to Greene, as we must in the posture of the affirmed findings on which this appeal comes to us, we observe that both Greene and Gordon testified that, although Gordon appeared "interested” in the property, he was not then ready to seriously consider buying it. Imminent bankruptcy of W. T. Grant, the now defunct chain store which was the property’s major tenant, and, to quote Gordon directly, "a number of other things we were doing at that time” kept him from even soliciting an asking price or making an offer. This attitude must have continued for at least a half year, because, whatever his inchoate "interest” amounted to, the unchallenged fact is that he never met, asked to meet or was invited to meet with anyone purporting to represent the owner of the property, and concededly not with Heilman. Neither, during all this time, did Greene ever show or offer to show him through the property, nor, significantly, at trial, could Gordon recollect that a second meeting or telephone call with Greene had ensued during the balance of that year.

We now shift our attention to the spring of 1975. Heilman, having just returned to New York, was faced with demands that the total of a large bank loan on which he was an obligor be reduced. While reviewing the possibility of liquidating some of his holdings with Joseph La Manna, his accountant, he was advised by La Manna that another one of his firm’s clients, I. Gordon Realty, had recently come into a large sum of money it was looking to invest. Following up on this independent recommendation, Heilman asked to meet with Gordon. It was this meeting from which there eventuated negotiations which were consummated by the sale of the center in the fall of 1975, by which time approximately a year had gone by since Greene’s unfruitful conversation with Gordon.

In sum, a fine-tooth-combing of the record discloses no proof that Heilman delegated power to choose Greene or any other broker to negotiate the sale of his property. There is no indication of any direct grant of such authority to Driscoll or, for that matter, to Diamond. Nor was Heilman responsible for any manifestations which, though indirect, would support a reasonable inference of an intent to confer such authority (see Restatement, Agency 2d, § 7, Comment c). Certainly, that Heilman, Driscoll and Diamond in common held stock, directorships or officerships in several corporations, whatever the powers they thus possessed with respect to the corporations’ affairs, did not, without more, give rise to any power to act with respect to each other’s personal property. In particular, mere authority to manage Heilman’s personal realty would not include authority to take steps to sell it (see Restatement, Agency 2d, § 52, Comment c). And, of course, Greene’s unsupported surmise — that Driscoll would not have contracted with Greene if he had not been commissioned to do so — but begs the question.

We turn then to the subject of apparent or, as it is sometimes called, ostensible authority, essentially the legal wellspring from which, absent actual authority, Trial Term and the majority at the Appellate Division thought Greene drew the right to hold Heilman for the acts of Driscoll. Apparent authority may exist in the absence of authority in fact, and, if established, may bind one to a third party with whom the purported agent had contracted even if, as in the present case, the third party is unable to carry the burden of proving that the agent actually had authority.

As with implied actual authority, apparent authority is dependent on verbal or other acts by . a principal which reasonably give an appearance of authority to conduct the transaction, except that, in the case of implied actual authority, these must be brought home to the agent while, in the apparent authority situation, it is the third party who must be aware of them (Ford v Unity Hosp., 32 NY2d 464, 473; Stanton v Hawley, 193 App Div 559, 560; see Restatement, Agency 2d, § 8, Comments a, c). Key to the creation of apparent authority is that the third person, accepting the appearance of authority as true, has relied upon it (Restatement, Agency 2d, § 27, and Comment a). As demonstrated in the case before us now, these criteria just were not met.

So also, the consequent failure to establish apparent authority was not offset by the lack of exception by Heilman to Gordon’s insertion of Greene’s name in the purchase offer. The first sentence in its brokerage clause merely acknowledged that Greene had provided Gordon with "a statement” covering the premises. It in no way declared that a commission was due on that account or that Greene had been the procuring cause. Instead, it carefully avoided the familiar boilerplate used to indicate which broker, if any, brought about the sale (see, e.g., Williston, Contracts [3d ed, 1 Forms], § 922, at p 184). So, in the clause’s second and only other sentence, the purchaser did no more than assure itself, as sophisticated purchasers usually do, that the obligation for "any” brokerage commission on the sale was to be the seller’s and not the buyer’s. Fairly read, this language manifested no intention to create a third-party beneficiary (see 2 Williston, Contracts [3d ed], § 356A; cf. Ficor, Inc. v National Kinney Corp., 67 AD2d 659).

The record here also lends no support to the charge that Heilman was a participant in the conspiracy charged by the third cause of action. There was nothing to show that he played any párt in Driscoll’s and Diamond’s alleged misrepresentations as to the ownership, the gravamen of the fraud pleaded in the second cause of action, which, in turn, specifically ascribed the fraud to Driscoll and Diamond only. Therefore, had the third cause of action not been dismissed by the trial court solely because it had decided to award damages on the first one, as to Heilman the third would have had to go by the board because no prima facie case had been made out.

For all these reasons, we conclude that no actual or apparent authority in Driscoll or Diamond to enter into the agreement has been established.

The trial court’s rationale for dismissal of the second and third causes of action against Driscoll and Diamond having thus been swept aside, we now give our attention to the procuring cause issue. For, to put it broadly, if it cannot be said that Greene brought about the sale, he at all odds would not be entitled to compensation. The remaining claims then bespeaking instances of damnum absque injuria, they too would have to fall.

It has long been recognized that a broker, save when he enjoys the benefit of a special agreement to the contrary, does not automatically and without more make out a case for commissions simply because he initially called the property to the attention of the ultimate purchaser (see Newberry & Co. v Warnecke & Co., 267 App Div 418, 421, affd 293 NY 698; Munson v Tilley, 45 AD2d 806, 807). If that were enough, given the enterprise which our competitive society prizes in its brokers and its salesmen, a veritable morass of claims to proprietary rights in their prospects would result.

That is not to say that, in order to qualify for a commission, the broker in all instances must have been the dominant force in the conduct of the ensuing negotiations or in the completion of the sale. But, however variable the judicial terminology employed to express the requirement that the broker must be the procuring cause, it has long been recognized that there must be a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation (see Lord v United States Transp. Co., 143 App Div 437, 454-455).

Sibbald v Bethlehem Iron Co. (83 NY 378), our seminal case on this point, articulating the prevailing rule (e.g., Lipe v Ludewick, 14 Ill App 372; Nielson’s Case, 236 Mass 1; Armstrong v Wann, 29 Minn 126; Earp v Cummings, 54 Pa 394), has made that clear. In Sibbald, after repeated efforts by the plaintiff to solicit an offer from his customer over a period of four months had been to no avail, negotiations initiated by the purchaser on its own led to a sale through another broker. The court held he was not the procuring cause of the sale because he had not brought together the "minds of the buyer and seller”. (Sibbald v Bethlehem Iron Co., supra, at p 382; see, also, Byrne, Bowman & Forshay v 488 Madison Ave., 11 Misc 2d 587, 590, affd 286 App Div 826 [broker who initiated negotiations for a lease of realty, eventually closed by another broker, never "discussed any of the basic and material details upon which the parties would reasonably have had to agree before a lease could be executed”].)

The facts in the case before us fall foursquare within the spirit of these cases. In essence, the most that can be said for Greene’s efforts is that he alerted Gordon to the availability of the property. Although he testified that, after his initial conversations with Gordon and Driscoll, he had spoken again to each of them on some other unrecorded and undated occasions, he did not claim that he had obtained a figure from either of them even then. He never arranged nor attempted to arrange for a meeting of these persons, much less of their minds. He never showed Gordon the property. He did nothing to excite a practical interest in negotiating, even by exploring, on his own or with the parties, such obvious questions as the ability of Gordon to make the purchase, whether there was a cure for a tax problem the record shows then confronted the property, or the effect of the expected commercial demise of the Grant tenancy. There was not even the slightest prodding towards any meeting of the minds from October, 1974 until the time six months later when Heilman and Gordon, prompted by each one’s then current financial picture and the happenstance that each was a client of La Manna’s accounting firm, independently and directly, and without any aid or intervention by Greene, on their own entered upon meetings, discussions and negotiations, things Greene never even suggested.

Over and above this, Greene’s indifference and inactivity, an attitude presumably conditioned by Gordon’s passivity, extended far beyond the months preceding the direct Hellman-Gordon dealings. As detailed previously, it also prevailed for the four or five months that elapsed from the time the negotiations between the principals got underway in the late spring of 1975 until the closing in September of that year. During all the latter period, Greene, if he knew the property was being sold, made no claim to any continuing interest and, if, perchance, he did not know, he did not so much as lift a finger to do anything towards a sale of the property, not even to the extent of proposing a single other prospect. In all, the entire picture smacks almost irrefutably of abandonment (see Sampson v Ottinger, 93 App Div 226).

Under these circumstances, even if it be said that Greene had "introduced to each other parties who otherwise would have never met” or had "created impressions which, under later and more favorable circumstances, naturally [led] to and materially [assisted] in the consummation of a sale”, a picture far more favorable to the plaintiff than the one we face here, as a matter of law his claim for commissions would have had to be dismissed (Sibbald v Bethlehem Steel Co., 83 NY 378, 383, supra). A fortiori, we so conclude here.

For all these reasons, the order of the Appellate Division should be reversed and the complaint dismissed, with costs.

Jasen, J.

(dissenting). In my view, the order of the Appellate Division should be affirmed.

The trial court found that the "corporate connections between Driscoll and Heilman-were sufficient to cloak Driscoll with apparent authority”. This finding of fact was affirmed by the Appellate Division. Nonetheless, the majority, rejecting this affirmed finding of fact, concludes that "a fine-tooth-combing of the record discloses no proof that Heilman delegated power to choose Greene or any other broker to negotiate the sale of his property.” Such a conclusion is reached by the majority only after reviewing the facts in the record and drawing inferences therefrom. This, we are unable to do. (NY Const, art VI, § 3.) The issue of whether Driscoll was cloaked with apparent authority is essentially one of fact. The finding by the court below that there was apparent authority, being affirmed by the Appellate Division, is beyond our review if there exists any factual support in the record for such a determination. (See, e.g., Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 491.) I believe that there is.

An examination of the record before us reveals that in June, 1974, defendants Heilman, Driscoll and Diamond held various positions in West Wayne Shopping Plaza, Inc., Todd Mart, Inc., and Montezuma Construction Company, Inc. Specifically, Heilman was the president of Todd Mart, Inc., and a vice-president in West Wayne Shopping Plaza, Inc., and the Montezuma Construction Company, Inc. Driscoll, on the other hand, was the president of West Wayne Shopping Plaza, Inc., and the Montezuma Construction Company, Inc., and a vice-president of Todd Mart, Inc. These companies had a variety of real estate holdings, one of which was the property involved in this appeal, the West Wayne Shopping Plaza.

In July, 1974, ownership of the West Wayne Shopping Plaza was transferred in a Sheriff’s sale pursuant to an execution issued on a judgment in favor of the Montezuma Construction Company, Inc., against West Wayne Shopping Plaza, Inc. For some unexplained reason, however, title to the West Wayne Shopping Plaza was recorded in the name of Heilman as an individual, rather than in the name of the judgment creditor, the Montezuma Construction Company, Inc.

Approximately three months later, in October or November, 1974, it is undisputed that plaintiff Greene, a real estate broker, was contacted by Driscoll on the telephone. Driscoll, who was known by Greene to be an officer of Todd Mart, Inc., notified Greene that the West Wayne Shopping Plaza, along with two other parcels of property purportedly owned by Todd Mart, Inc., were being offered for sale. Driscoll also indicated to Greene that a 5% commission would be paid if a willing buyer for these properties could be procured. It is further undisputed that Driscoll then supplied Greene with financial statements relating to the West Wayne Shopping Plaza and the other properties allegedly being sold by Todd Mart, Inc. Shortly thereafter, Greene contacted Robert Gordon, president of I. Gordon Realty Corp., and informed Gordon of the availability of the West Wayne Shopping Plaza. Greene also sent Gordon the financial statements of the plaza, now stamped with Greene’s name, which had originally been sent to Greene by Driscoll.

Thus, Greene was the first person to introduce Gordon to the plaza. Gordon testified that he was interested in the property from the beginning — that is, from the time he obtained the statements from Greene — and that his interest continued to grow from the fall of 1974 through the spring of 1975. Gordon also stated that during this time he visited the plaza on several occasions. Testimony from Greene and Gordon further reveals that during this time Greene had a number of conversations with Gordon concerning the sale of the property. In addition, Greene testified that in late October, 1974 he informed Driscoll of Gordon’s interest in the plaza.

In the early spring of 1975, negotiations took place between Gordon, Heilman and Driscoll with an eye toward the eventual sale of the shopping plaza. Meetings, sometimes attended by all three individuals, were held at the offices of Todd Mart, Inc. Moreover, Gordon on occasion would bring to these meetings the financial statements which bore Greene’s name.

Throughout these negotiations, no mention was made of the actual ownership of the West Wayne Shopping Plaza. In fact, Gordon, like plaintiff Greene, believed that Todd Mart, Inc., was the actual owner of the plaza. Moreover, Gordon was not made aware of Heilman’s individual ownership of the plaza until just prior to preparation of the final purchase offer.

In April, 1975, Gordon submitted a written offer to Heilman to purchase the shopping plaza. The purchase offer contained a clause denominated "Broker’s Commission” which recited that "Alfred K. Greene” had supplied Gordon with financial statements and that any broker’s commissions on the sale should be paid by Heilman. On June 27, 1975, Heilman made a counteroffer in which he made various modifications to the original Gordon offer. Heilman’s counterproposal, however, failed to delete the broker’s commission clause containing Greene’s name. Finally, on September 4, 1975, I. Gordon Realty Corp. purchased the shopping plaza. Thereafter, plaintiff Greene sought his 5% commission for securing Gordon as purchaser.

Based on the foregoing scenario, the trial court found that the "corporate connections between Driscoll and Heilman were sufficient to cloak Driscoll with apparent authority not only to manage but to sell such properties as the corporations in fact managed and controlled, and, such properties as the corporations owned — or — did formerly own.” I would agree.

As mentioned before, a finding of apparent authority essentially involves a factual determination. "[Wjhere [as here] no written authority of the agent has been proven, questions of agency and of its nature and scope and of ratification by or estoppel of the principal, if dependent upon contradictory evidence or evidence, though not contradictory or disputed, from which different inferences reasonably may be drawn, are questions of fact to be submitted to the jury upon proper instructions by the court.” (Hedeman v Fairbanks, Morse & Co., 286 NY 240, 248-249.) Therefore, in this action, tried without a jury, there was a factual basis upon which the trial court could find, as it did, that Driscoll was cloaked with apparent authority by Heilman to authorize the sale of the plaza. The majority at the Appellate Division agreed and affirmed.

The doctrine of apparent authority is an outgrowth of the equitable concept that "when one of two innocent persons must suffer from the act of a third person, he shall sustain the loss who has enabled the third person to do the injury.” (Walsh v Hartford Fire Ins. Co., 73 NY 5, 10.) So viewed, apparent authority can be expressed in terms of estoppel: "where a principal has, by its voluntary act, placed an agent in such a situation that a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in assuming that such agent has authority to perform a particular act and deals with the agent upon that assumption, the principal is estopped as against such third person from denying the agent’s authority.” (2 NY Jur, Agency, § 92, p 256; see Restatement, Agency 2d, § 8; cf. Palmer, Law of Restitution, §§ 14.15 — 14.16.) Stated somewhat differently, apparent authority " 'implies a transaction itself invalid, and a person [the principal] who is forbidden for equitable reasons to set up that invalidity.’ ” (Wen Kroy Realty Co. v Public Nat. Bank & Trust Co. of N. Y., 260 NY 84, 92.)

From the evidence presented at trial, it could be inferred that Heilman was aware of Driscoll’s activities in contacting Greene. Both Heilman and Driscoll were interlocked financially and as officers in a number of real estate management and development corporations, including the shopping plaza involved in this litigation. Moreover, as the president of Todd Mart, Inc., it is not unreasonable to conclude that Heilman was aware of the activities of Driscoll, a vice-president in the same corporation, in procuring Greene’s services in connection with the sale of the shopping plaza property. This conclusion is supported further by the fact that negotiations for the sale of the shopping plaza took place in the offices of Todd Mart, Inc., and were participated in by both Heilman and Driscoll. Finally, Heilman’s signature on the purchase agreement which recited Greene’s name under the broker’s clause is yet another indication that Heilman was aware that Greene had acted as procuring broker on the deal. Therefore, I simply cannot agree with the majority that "the record is barren of even a hint that Heilman * * * was aware of Driscoll’s dealings with Greene”.

The record in this case also supports the inference that Greene was justified in his reliance on Driscoll’s authority to manage and sell the plaza. Greene, like the ultimate purchaser Gordon, reasonably concluded that Todd Mart, Inc., was engaged in selling the property. Both the president and vice-president of that corporation were engaged in the solicitation and negotiations which led to the sale. Moreover, as mentioned earlier, meetings and negotiations regarding the sale took place at the offices of Todd Mart, Inc. Thus, it would appear that the major portion of activities leading up to the sale of the shopping plaza focused on Todd Mart, Inc., rather than on Heilman, the individual. Under these circumstances, can it be said, as a matter of law, that Greene’s reliance on Driscoll’s authority to enter into a real estate broker’s agreement was unjustified? I think not.

Given Heilman’s awareness of Driscoll’s activities and the justified, although mistaken, reliance on the part of Greene as to the true ownership of the property, the doctrine of apparent authority was properly invoked by the courts below to prevent Heilman from denying Driscoll’s authority to procure a purchaser for the shopping plaza and enter into an agreement with Greene. Heilman fully participated in the transaction and has reaped the benefits of the sale. He should not now be able to avoid payment to Greene by seeking refuge in a network of corporations and claiming that he, as an individual, was not responsible for creating the appearance that Todd Mart, Inc., was selling the property and that Driscoll, its vice-president, was authorized to contract with Greene as broker to effectuate such a sale. It should be readily seen that the doctrine of apparent authority, with its underlying theory of estoppel, specifically precludes Heilman from denying Driscoll’s authority and actions.

Furthermore, I would agree with the Appellate Division that the record discloses sufficient evidence to support the finding that Greene was the procuring cause for the sale of the shopping plaza. As mentioned earlier, the purchaser Gordon testified that Greene was the first and only real estate broker to introduce him to the plaza. Gordon also stated that his interest in the property continued to develop from the time Greene supplied him with the financial statements until he eventually purchased the property. Moreover, the record indicates that during the fall of 1974 Greene had additional conversations with both Gordon and Driscoll concerning the sale of the plaza. Therefore, because there was sufficient evidence to link Greene’s activities with the ultimate purchase by Gordon, this court is without power to disturb such an affirmed finding of causation. (See, e.g., Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 491, supra.)

Finally, I cannot agree with the majority’s dismissal of Greene’s remaining claims against Heilman. The trial court, having sustained Greene’s contract action, dismissed his second cause of action in fraud and third cause of action in conspiracy because Greene was made whole by recovering under a contract theory. (See, e.g., Simon v Noma Elec. Corp., 293 NY 171, 177.) The majority, however, sustains the dismissal of these causes of action because, in its view, the record is devoid of any evidence linking Heilman with the fraud engaged in by Driscoll or of any support for the allegation that Heilman and Driscoll conspired to deprive Greene of his broker’s commissions.

While this conclusion logically coincides with the majority’s view of the record on the issue of apparent authority, it again involves a factual determination which, under the circumstances of this case, this court is without power to make. As mentioned before, there is evidence in the record from which the trier of the fact could infer that Heilman was aware of and participated in Driscoll’s activities. Thus, the record could support a judgment against Heilman under a cause of action either in fraud or conspiracy. Therefore, as with the issue of apparent authority, a factual determination as to Greene’s claims in fraud and conspiracy is beyond this court’s power of review. (NY Const, art VI, § 3.)

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

Order reversed, etc.

      . As Heilman’s brief points up, the first cause of action does not appear to be directed against Heilman per se. Specifically, nowhere is it alleged in so many words that Heilman contracted with Greene or that Driscoll or Diamond did so other than for the corporations and themselves. Nevertheless, in the contract count, the plaintiff did state specifically that he had made a demand for commissions against all the defendants, which included Heilman by name. Further, the charge that Heilman was involved in the transaction was explicit in both the second and third causes of action. Moreover, no suprise is or was claimed either at nisi prius or at the Appellate Division, and the issue passed upon in those courts, even if the pleading left the matter obscure, was fully litigated there on its merits. True, appellant’s protestations are hardly hypertechnical. And the pleading imperfections to which they are directed are not to be encouraged. Yet, the question having been raised at the Appellate Division, in light of our ever-increasing concern for substance over form, we do not disturb the exercise of discretion implicit in that court’s condonation of this irregularity (Dampskibsselskabet Torm A/S v Thomas Paper Co., 26 AD2d 347; see Diemer v Diemer, 8 NY2d 206, 212).

      . This statement preceded the following sentence: "It is understood and agreed that any broker’s commission due on the transfer of this property shall be the obligation of the seller, and the [buyer] shall not be obligated for a broker’s commission if this transaction shall fail to close for any reason whatsoever or under any other circumstances”. The two quoted sentences are the only ones on this or any related subject.

      . We note that, conceptually at least, unless and until the judgment were paid, this would not follow (1 NY Jur 2d, Actions, § 14).

      . Gordon testified that, apparently unbeknownst to either Greene or anybody connected with the center, he had visited stores located there on several occasions. However, none of these visits stimulated him to communicate with Greene, Driscoll or anyone else.

      . E.g., "efficient cause of the sale” (Sussdorff v Schmidt, 55 NY 319, 321); "predominating efficient cause” and "really effective means” (Myers v Batcheller, 177 App Div 47, 51).


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Harry Washington, Appellant.
    Argued October 13, 1980;
    decided November 13, 1980

      POINTS OF COUNSEL

      Barry D. Leiwant and William E. Hellerstein for appellant.
    I. Appellant was denied his right to a speedy trial under CPL 30.30 because (a) the prosecution was never actually ready for trial until appellant was arraigned on the third indictment 349 days after the criminal action commenced, and (b) even if the adjournments consented to or requested by the defense are excluded, over six months of unexcused delay elapsed before the prosecution was ready for trial. (People v Hamilton, 46 NY2d 932; People v Sturgis, 38 NY2d 625; People v Dean, 45 NY2d 651; People v Washington, 43 NY2d 772; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498.) II. Appellant was denied his constitutional rights to receive due process of law and be protected against self incrimination (a) by the trial court’s improper admission of unconstitutionally obtained evidence for use on cross-examination and rebuttal where the hearing court had previously held that the evidence did not meet the constitutionally mandated standard of trustworthiness and therefore could not be admitted for any purpose, (b) by the failure of the trial court to inform the jury that this impeachment evidence could be considered only on the question of credibility, and (c) by the trial court’s improperly permitting the prosecutor to bolster the testimony of his rebuttal witness with prior consistent Grand Jury testimony (US Const, 5th, 14th Amdts; NY Const, art I, § 6). (Harris v New York, 401 US 222; Mincey v Arizona, 437 US 385; Oregon v Hass, 420 US 714; New Jersey v Portash, 440 US 450; People v Schompert, 19 NY2d 300, 389 US 874; People v Maerling, 45 NY2d 289; People v Settles, 46 NY2d 154; United States v Bagley, 537 F2d 162, 429 US 1075; People v Davis, 43 NY2d 17, 435 US 998; People v Quinones, 61 AD2d 765.)

      Eugene Gold, District Attorney (Howard E. Heiss of counsel), for respondent.
    I. Appellant was not denied his right to a speedy trial under CPL 30.30. The People were ready for trial during the pendency of the two superseded indictments which were valid accusatory instruments upon which appellant could be tried. The issue of apportionment of the delay between the parties was not preserved for appellate review. In any- event, appellant acquiesced in the court adjournments at issue and thereby waived any objection to the adjournments on speedy trial grounds. (People v Dean, 45 NY2d 651; People v Whisby, 48 NY2d 834; People v Hardy, 47 NY2d 500; People v Reynolds, 25 NY2d 489; People v Friola, 11 NY2d 157; People v Tutt, 38 NY2d 1011; People v Piscitello, 7 NY2d 387; People v White, 2 NY2d 220, 353 US 969; People v Prosser, 309 NY 353; People v Timothy, 34 NY2d 867; People v Kelly, 38 NY2d 633.) II. The trial court’s decision to permit the People to utilize appellant’s statements to the arresting officer for purposes of impeaching appellant’s credibility was proper. The hearing court’s suppression of the statements based upon the finding that appellant’s rights under Miranda had been violated resulted only in prohibiting the introduction of the statements on the People’s direct case. The additional finding by the hearing court that the People failed to prove, beyond a reasonable doubt, that appellant made statements to the officer was beyond the scope of the hearing and did not bind the trial court with respect to its ruling that evidence of the statements was admissible for impeachment purposes. (Harris v New York, 401 US 222; Miranda v Arizona, 384 US 436; People v Wise, 46 NY2d 321; Jackson v Denno, 378 US 368; Rogers v Richmond, 365 US 534; Lee v Mississippi, 332 US 742; Mincey v Arizona, 437 US 385; People v Huntley, 15 NY2d 72; Oregon v Hass, 420 US 714.) III. The failure of the trial court to instruct the jury that evidence of appellant’s statements, offered by the People on rebuttal, could only be used for purposes of assessing appellant’s credibility was not preserved for this court’s review by timely objection at trial. (People v Campbell, 59 AD2d 912; People v Boone, 56 AD2d 892; People v Patterson, 48 AD2d 933; People v Patterson, 39 NY2d 288, 432 US 197; People v Robinson, 36 NY2d 224; People v Darrisaw, 49 NY2d 786; People v Teeter, 47 NY2d 1002; People v Kibbe, 35 NY2d 407, affd sub nom. Henderson v Kibbe, 431 US 145; People v McLucas, 15 NY2d 167.) IV. Appellant failed to make an appropriate objection to the prosecutor’s redirect examination of Officer Caracappa concerning the officer’s prior consistent Grand Jury testimony. Appellant did not object to the specific questions complained of on appeal and did not advance the theory of error asserted in this court. Therefore, he has failed to preserve the issue for appellate review. In any event, the error, if any, was harmless. (People v Reilly, 47 NY2d 860; People v McDowell, 47 NY2d 858; People v Davis, 44 NY2d 269; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Wachtler, J.

The primary question on this appeal is whether the defendant’s credibility may be impeached by use of prior inconsistent statements which were suppressed at a pretrial hearing where the court had found, contrary to the police officer’s testimony, that the defendant had not been advised of his rights (Miranda v Arizona, 384 US 436), and had, in fact, not made the statements attributed to him. The trial court and the Appellate Division, relying on Harris v New York (401 US 222), held the statements were admissible for impeachment and that it was for the jury to decide whether the defendant had made them.

The defendant appeals claiming that the People were barred from using the statements for any purpose by the hearing court’s finding that he did not make them which, he urges, amounts to a determination that this evidence did not satisfy the "trustworthiness” standard mentioned as a proviso or prerequisite to admissibility in the Harris case. It is the People’s position that the term "trustworthiness” simply applies to, and prohibits the use of statements obtained involuntarily by duress or coercion. More fundamentally, however, the appeal poses the question as to whether a court may suppress or hold inadmissible a confession, or other evidence, on the ground that it was fabricated by the police, supported only by a factual finding that the court did not believe the police officer’s testimony.

On the night of June 6, 1975 several police officers went to the defendant’s Brooklyn apartment to investigate a report of a man with a gun. The defendant’s wife admitted them to the apartment where they found the defendant asleep on a living room couch, with a gun protruding from his pants pocket. The police removed the gun, woke the defendant and placed him under arrest. The defendant was then asked where he got the gun and, according to the arresting officer, gave two different explanations. Initially the defendant stated that he had found the gun in a car. Later, however, at the station house he told the officer that his wife had planted the gun on him.

Prior to trial the defendant moved to suppress the statements on the ground that they were "made in violation of the defendant’s Constitutional rights.” The arresting officer, who was the only witness at the hearing, testified that the defendant made the statements after being advised of his rights. However, defense counsel emphasized the fact that the officer had not mentioned the statements in his reports or at the preliminary hearing, and argued that the witness’ testimony regarding the statements "was manufactured out of whole cloth; that there never was a statement made by the defendant to the police officer at the time of the arrest”. Although the People urged that that was for the jury to decide and that the only issue before the pretrial suppression hearing court was whether the officer had advised the defendant of his rights, the court responded that "[T]he issue of [the officer’s] credibility goes to the entire issue as to whether or not I believe he did give the Miranda warnings, and whether these statements were made.” At the conclusion of the hearing the court held that "[T]he credibility of the police officer has been so impaired” that the People have failed to establish "beyond a reasonable doubt that the warnings were given and that these statements were made. Under those circumstances, the motion to suppress is granted as to those two statements.”

At the trial the defendant’s wife and the arresting officer testified to the defendant’s possession of the weapon. There was also expert testimony the gun was operable. Before the defendant testified on his own behalf he moved to have the court preclude the People from cross-examining him with respect to the suppressed statements. He urged that the finding that the People had failed to prove that the defendant had made the statements, which finding was made by the Justice who presided at the pretrial suppression hearing, barred the People from using the statements pursuant to Harris v New York (401 US 222, supra). The trial court denied the motion noting that, at a suppression hearing, the People are not obliged to prove that the defendant made the statements.

When the defendant testified at trial, he denied bringing the gun to the apartment or placing it in his pocket. He stated that on the night of his arrest he had an argument with his wife over his sister-in-law, who had been residing with them for several months, had been a constant source of irritation and was in the apartment when he returned from work that evening. He stated that after the argument he fell asleep and was not aware of the gun’s existence until he was awakened by the police. He denied making any statement to the police. On cross-examination he specifically denied making any statements to the effect that he had found the gun in a car, or that his wife had planted it on him. In rebuttal the People called the arresting officer who testified that the defendant had made the statements.

The jury found the defendant guilty of criminal possession of a weapon in the third degree. The Appellate Division affirmed the conviction (68 AD2d 90). One Justice dissented and granted the defendant leave to appeal to this court.

In Harris v New York (401 US 222, 224, supra) the Supreme Court held that statements obtained in violation of a defendant’s rights under Miranda v Arizona (384 US 436, supra), and thus inadmissible as evidence in chief, may nevertheless be used to impeach the defendant’s credibility "provided of course, that the trustworthiness of the evidence satisfies legal standards.” It is clear that the rule applies to any violation of the defendant’s rights under the Miranda decision (Oregon v Hass, 420 US 714; People v Wise, 46 NY2d 321, 329). It is also apparent that the prosecutor may use the statements on cross-examination of the defendant (Harris v New York, supra) or on rebuttal by calling another witness to testify that the defendant made them (Oregon v Hass, supra). The meaning of the proviso, however, has not been explained, and is not readily apparent (see, e.g., Stone, Miranda Doctrine in the Burger Court, 1977, Supreme Ct Rev 99, 113-114).

The District Attorney urges that the term "trustworthiness” refers to voluntariness, noting that in subsequent cases the court has held that a defendant may not be impeached by a statement obtained involuntarily as a result of physical duress (Mincey v Arizona, 437 US 385) or legal compulsion (New Jersey v Portash, 440 US 450). But the court has long abandoned the idea that trustworthiness and voluntariness are synonomous. It is now recognized that involuntary confessions are inadmissible "not because such confessions are unlikely to be true but because the methods used to extract them offend” the Constitution (Rogers v Richmond, 365 US 534, 540-541). Actually the cases cited by the District Attorney, in which the court held involuntary statements inadmissible even for impeachment, turned upon this latter principle and did not involve interpretation or application of the "trustworthiness” standard mentioned in Harris (see, e.g., Mincey v Arizona, supra, at pp 397-398). Indeed in one of the cases, the court found the statement, which had been compelled under a grant of immunity during defendant’s appearances before a Grand Jury, was inadmissible despite its apparent trustworthiness because the "Fifth and Fourteenth Amendments provide a privilege against compelled self-incrimination, not merely against unreliable self-incrimination” (New Jersey v Portash, supra, at p 459). These cases, in fact, indicate that the court did not employ the term "trustworthiness” as a synonym for voluntariness.

The defendant argues that a statement cannot be said to be trustworthy, and thus admissible under Harris, unless the court has made an independent determination that he did in fact make the statement as the police contend. He urges that the hearing court’s factual finding in this case should be deemed to have the effect of rendering the statement inadmissible, even for the limited purpose of impeachment.

Traditionally, of course, any dispute as to whether the defendant made the statement would present a factual question for the jury to resolve. The common-law rules of evidence applicable to prior inconsistent statements do not require a court to make such a determination as a prerequisite to admissibility. On the contrary, the fact that the witness has denied making the statement is generally viewed as a proper, if not necessary, foundation for its admissibility to the jury (see, e.g., Richardson, Evidence [10th ed — Prince], § 502; see, also, People v Wise, 46 NY2d 321, supra). Neither is such a determination a recognized part of a pretrial suppression hearing. Although the court must now make a preliminary determination, that a statement was voluntarily obtained (Jackson v Denno, 378 US 368) and that the defendant was advised of his rights (Miranda v Arizona, 384 US 436, supra), there has been no change in the long-standing rule that any dispute as to whether the defendant made the statement is a factual matter for the jury to decide (Lee v Mississippi, 332 US 742, 745).

That is not to say, of course, that a claim of fabricated evidence does not touch the defendant’s constitutional rights. It is well settled that the defendant’s right to due process is violated if the People knowingly use perjured testimony on any material point (see, e.g., Mooney v Holohan, 294 US 103; Alcorta v Texas, 355 US 28; Napue v Illinois, 360 US 264; Miller v Pate, 386 US 1; Giglio v United States, 405 US 150; People v Robertson, 12 NY2d 355). However, there is no reason why a disputed claim of fabricated evidence, involving only the credibility of witnesses, may not be resolved in the usual manner, by submitting the matter to the jury at trial. The question as to whether the police are telling the truth when they testify that the defendant made the statement does not involve complex questions of law and fact, similar to those involved in determining whether a statement was voluntary (Jackson v Denno, 378 US 368, 390, supra), or whether the defendant was properly advised of his rights (Miranda v Arizona, 384 US 436, supra). Nor does there appear to be any cause for fear that the jury will inject irrelevant and impermissible considerations into their assessment as to whether the defendant actually made the statement (Jackson v Denno, supra, at p 386). It is understandable that a jury may improperly rely upon a confession, which was obtained involuntarily, or in violation of the defendant’s rights, if it believes that it was nevertheless a truthful statement. It is hard to imagine, however, that jurors would hold a confession against the defendant if they find that it was entirely fabricated by the police. Notably the cited cases upholding the defendant’s constitutional right to a trial free of deliberately perjured testimony involved motions made after trial in which the perjury was conceded or irrefutably established, and the only question for the court concerned the materiality of the evidence. They did not involve pretrial or trial motions, requiring the court to pass upon pure questions of fact and credibility customarily reserved for the jury.

Thus adoption of the defendant’s argument would require a rejection of traditional rules of evidence governing the admissibility of prior inconsistent statements and an extension of the recognized scope of pretrial suppression hearings to encompass claims of fabricated evidence as an independent ground for exclusion. Harris v New York (401 US 222, supra) cannot be read to require such a result. The purpose of the court’s decision in that case was not to alter the rules of evidence with respect to prior inconsistent statements but rather to preserve one of "the traditional truth-testing devices of the adversary process” (Harris v New York, supra, at p 225). And far from manifesting any intent to extend the exclusionary rule into new areas, the court expressly noted that its concern was to prevent an "extravagant extension” of the concept (Harris v New York, supra, at p 225, n 2).

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

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

Order affirmed.

       Our decision in People v Briggs (38 NY2d 319) is not to the contrary. All that we decided in that case was that a statement could not be admitted at trial when the authorities had inexcusably failed to give the defendant the pretrial notice required by statute. Although we indicated that the defendant is entitled to be notified of "the fact” of the confession so that he may prepare his defense, we did not mean to suggest that a defendant who denied making the statement was entitled to have a pretrial determination of that fact. We recognize, of course, that in assessing the police officer’s credibility the hearing court may consider, as the court did in the case now before us, whether the defendant actually made a statement as the police contend, although a factual determination of that point is not essential to the resolution of the motion. A collateral finding of that nature, however, should not have the same effect as a factual finding the court must make in order to determine the substantive issues, as was the case in People v Zimbardo (21 NY2d 15; cf. Hinchey v Sellers, 7 NY2d 287, 293).


author: Per Curiam.

text:
    In the Matter of Brent Rogers, as Justice of the Town Court of Brookfield, Madison County, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Argued October 8, 1980;
    decided November 13, 1980

      POINTS OF COUNSEL

      Thomas P. Bogan for petitioner.
    I. The commission lacked jurisdiction to grant the administrator’s motion for summary judgment. II. The commission’s rule requiring verification of a Judge’s answer is inconsistent with law. III. The commission’s rule allowing summary determination is inconsistent with law. IV. The commission’s findings of fact were not supported by substantial evidence. (Israelson v Rubin, 20 AD2d 668, 14 NY2d 887.) V. The sanction of removal imposed by the commission was excessive. (Matter of Kuehnel, 45 NY2d [y].)

      Raymond S. Hack, Gerald Stern and Seth A. Halpern for respondent.
    The commission’s determination of removal was proper and in full compliance with the law of the State of New York. (State Div. of Human Rights v Xerox Corp., 57 AD2d 1069; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; Andre v Pomeroy, 35 NY2d 361; Weinberger v Hynson, Westcott & Dunning, 412 US 609; Federal Power Comm. v Texaco, 377 US 33; United States v Storer Broadcasting Co., 351 US 192; Matter of Hering, 47 NY2d [ll]; Matter of Pfingst, 33 NY2d [a]; Matter of Bulger v State Comm. on Judicial Conduct, 48 NY2d 32.)
   OPINION OF THE COURT

Per Curiam.

The Commission on Judicial Conduct has determined that petitioner Rogers should be removed as a Town Justice of the Town of Brookfield. Petitioner argues that the procedures followed by the commission were beyond its powers, but in view of petitioner’s answer we do not find it necessary to consider those procedural arguments. The answer admitted that petitioner failed to respond to commission inquiries and failed to report or remit moneys during the period from June, 1978 through August, 1979, and thus established his misconduct. We reject the determined sanction of removal, however, and direct that petitioner be censured.

Petitioner is a dairy farmer who stood for election as a Town Justice at the request of both political parties. His answer states that he filed reports as required for his first five months in office but was unable to keep up with the demands of his administrative duties because of the heavy inroads into the time required for farming which his judicial duties made (contrary to what he had been led to believe), a result of the fact that he worked and resided in the geographical center of the township and was, therefore, always available whereas the other Justice lived in the northeastern corner of the township and worked outside of the community. The answer indicates further that petitioner considered resigning but decided not to because he had already made considerable financial and personal sacrifice for the position (which paid him only $2.60 per day) and felt strongly that someone who lived and worked in the community should hold the office.

The commission noted that petitioner had filed the overdue 1978 and 1979 reports in October, 1979 and filed the September through November, 1979 reports later than the law required, in December, 1979. It concluded that petitioner should be removed essentially because he "has evinced repeatedly his inability or unwillingness to discharge the responsibilities of judicial office.” While we do not condone petitioner’s admitted failures, we do not construe his answer as indicating an unwillingness to discharge the responsibilities of office, his decision not to resign and the bringing of this review proceeding strongly suggesting the contrary, as does the fact that he brought his reports up to date before the commission’s sanction determination was made. Bearing in mind that petitioner is the elected choice of the voters of his township to hold the office, that the difficulties that resulted in his slighting his administrative responsibilities appear now to have been overcome and that the commission made no finding that he had failed to deposit moneys received by him in his official account within the time required by the Rules of the Administrative Board (cf. Bartlett v Flynn, 50 AD2d 401, 403, app dsmd 39 NY2d 942), we conclude that a different sanction than removal, namely, censure, should be imposed (cf. Judiciary Law, §44, subd 9).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Determined sanction rejected, without costs, and the sanction of censure imposed.


text:
    In the Matter of John L. Silverman, Respondent, v Robert J. McGuire, as Police Commissioner of the City of New York, et al., Appellants.
    Argued October 16, 1980;
    decided November 18, 1980

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Alexander J. Wulwick and Carolyn E. Demarest of counsel), for appellants.
    I. As the police commissioner ultimately must be held accountable for the efficacy and integrity of the police department, so also must he be held to assume final, sole, and nondelegable responsibility for disciplining the members of his department, including the power to review a stipulated penalty. (Matter of Brown v Codd, 62 AD2d 547; Matter of Kelly v Monaghan, 9 AD2d 92; People ex rel. Garvey v Partridge, 180 NY 237; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Perry v Blair, 64 AD2d 870; Matter of Gristmacher v Felicetta, 57 AD2d 444; Matter of Juno Operating Corp. v Police Dept. of City of N. Y., 22 Misc 2d 676.) II. The police commissioner is not estopped from rejecting the recommended plea bargain inasmuch as petitioner was fully aware of the tentative nature of the recommendation and did not rely thereon to his detriment. (People v Selikoff, 35 NY2d 227; Matter of Town of Cornwall v Diamond, 39 AD2d 762; Matter of Roberts v Parker, 52 AD2d 651; Matter of 1555 Boston Rd. Corp. v Finance Administrator of City of N. Y., 61 AD2d 187; Eden v Board of Trustees of State Univ. of N. Y., 49 AD2d 277; Matter of Di Giacomo v

      City of New York, 58 AD2d 347; Matter of Talamo v Murphy, 38 NY2d 637; Matter of Bergstein v Board of Educ., 34 NY2d 318.) III. The determination to dismiss petitioner was within the sound discretion of the police commissioner to make and was not so disproportionate to the offenses as to be shocking to one’s sense of fairness. (Matter of Steward v Leary, 57 Misc 2d 792; Matter of Alfieri v Murphy, 38 NY2d 976; Matter of Gristmacher v Felicetta, 57 AD2d 444; Matter of Mansfield v Murphy, 21 AD2d 659, 16 NY2d 986; Matter of McDermott v Murphy, 15 AD2d 479, 12 NY2d 780; Matter of Gibides v Powers, 45 NY2d 994; Matter of Beneky v Waterfront Comm. of N. Y. Harbor, 42 NY2d 920; Matter of Anonymous v Codd, 40 NY2d 860.)

      Richard A. Dienst for respondent.
    The Deputy Police Commissioner of Trials of the Police Department of the City of New York has the authority, both actual and apparent, to settle a police disciplinary proceeding and bind the police commissioner where the plea settlement was absolute upon its face, and there was no indication that it was conditioned upon the approval of the police commissioner. (Matter of Brown v Codd, 62 AD2d 547; Matter of Dolgin Eldert Corp., 31 NY2d 1; Veith v ABC Paving Co., 58 AD2d 257; Fuchs v Fuchs, 65 AD2d 595; Matter of Abramovich v Board of Educ., 46 NY2d 450.)
   OPINION OF THE COURT

Per Curiam.

During a police department disciplinary proceeding petitioner agreed to enter a nolo contendere plea with the understanding that he would forfeit 30 days’ pay and be placed on probation for one year. Neither the trial commissioner nor the prosecutor stated explicitly that the plea was conditioned on the police commissioner’s approval or that it was not. Though the trial commissioner recommended acceptance of the plea, the police commissioner rejected it and ordered that there be a departmental hearing.

After hearing, the charges against petitioner were sustained and upon recommendation of the trial commissioner, he was dismissed by the police commissioner. In this article 78 proceeding petitioner contends that the plea arrangement negotiated by the trial commissioner was binding on the police commissioner, and that he is, therefore, entitled to reinstatement. Special Term relying on Matter of Brown v Codd (62 AD2d 547) annulled the commissioner’s determination and remanded the matter to the department for rehearing and reconsideration. The Appellate Division affirmed, on constraint of Matter of Brown (supra).

Petitioner’s first argument, that the police commissioner is estopped by the plea arrangement made by the trial commissioner, is negated by the acknowledgment of his attorney during oral argument that petitioner suffered no detriment through loss of a witness or otherwise. He argues further that the trial commissioner’s determination to accept the plea is binding upon the police commissioner because section 434-a-14.0 of the Administrative Code of the City of New York authorizes the hearing of disciplinary charges against members of the police force by "the commissioner, or one of his deputies” in accordance with rules and regulations prescribed by the commissioner (subd b) and provides that "the commissioner, or the deputy * * * hearing * * * the charges” may place the department member on probation for a period not exceeding one year, and that the commissioner may impose punishment at any time during that period (subd d). He relies also upon CPLR 2104 which makes an oral stipulation in open court binding on the parties to it.

CPLR 2104 is not helpful -to petitioner because departmental proceedings are not, however similar to a courtroom setting the physical surroundings may be, conducted in a court but in an administrative proceeding. No more helpful are the Administrative Code provisions which simply authorize a deputy to conduct hearings, but appear to leave ultimate discipline to the commissioner, and do not speak to the extent to which a trial commissioner can make an agreement binding upon the commissioner.

Nor do we find persuasive the reasoning of Matter of Brown (supra). Though the trial commissioner may negotiate plea settlements in disciplinary matters and could by appropriate express regulation or other express delegation be given authority to enter into binding plea arrangements, petitioner has not established that the commissioner in fact did so either in his case or generally. Given the sensitive nature of the work of the police department and the importance of maintaining both discipline and. morale within the city’s "chosen mode of organization for its police force” (Kelley v Johnson, 425 US 238, 247), we believe that there are, indeed, policy impediments precluding enforcement of plea arrangements negotiated by a trial commissioner, absent express prior delegation of that authority by the commissioner or subsequent express approval of the particular bargain made in an individual case.

Accordingly, the order of the Appellate Division should be reversed and the commissioner’s order of dismissal reinstated, without costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order reversed, without costs, and the determination of the police commissioner reinstated.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Timothy Hudson, Appellant.
    Submitted October 10, 1980;
    decided November 18, 1980

      POINTS OF COUNSEL

      F. Stanton Ackerman for appellant.
    I. The court committed reversible error by admitting the confession of an accomplice, Henry Edge, into evidence under the recent fabrication theory. (People v Davis, 44 NY2d 269; Crawford v Nilan, 289 NY 444; People v Singer, 300 NY 120.) II. There was insufficient evidence to corroborate the accomplice testimony of Roger Nelson and Henry Edge. The court committed reversible error in denying defendant’s motion to dismiss and in submitting the case to the jury. (People v Ohlstein, 54 AD2d 109; People v O’Farrell, 175 NY 323; People v Mullens, 292 NY 408; People v Dixon, 231 NY 111; People v Nitzberg, 287 NY 183; People v Kress, 284 NY 452; People v Brown, 30 AD2d 279; People v Wasserman, 46 AD2d 915; People v Fiore, 12 NY2d 188; People v Horton, 61 AD2d 1082; People v Dingle, 70 Misc 2d 840.) III. Defendant was deprived of his right to a fair trial by the prejudicial actions and comments of the Assistant District Attorney. (People v Tassiello, 300 NY 425; Berger v United States, 295 US 78; People v Petrucelli, 44 AD2d 58; People v Pabon, 48 AD2d 862; People v Butler, 57 AD2d 931; People v Lovello, 1 NY2d 436; People v Jones, 47 AD2d 761; People v Pollock, 21 NY2d 206; People v Dennis, 62 AD2d 1022; People v Ashwal, 39 NY2d 105.) IV. The elements of the second and third counts of the indictment, as charged to the jury, were identical, and the verdicts of an acquittal on one and guilty of the other were so inconsistent that the guilty verdict was repugnant and should have been set aside. (People v Bullis, 30 AD2d 470; People v Pierce, 40 AD2d 581; People v Williams, 47 AD2d 262; People v Sullo, 91 Misc 2d 475.)

      Sol Greenberg, District Attorney (F. Patrick Jeffers of counsel), for respondent.
    I. The court properly admitted the confession of accomplice Henry Edge into evidence. (People v Singer, 300 NY 120; People v Davis, 44 NY2d 269; People v Coffey, 11 NY2d 142; People v Crimmins, 36 NY2d 230.) II. There was sufficient evidence to corroborate the accomplice testimony. (People v Daniels, 37 NY2d 624; People v Kohut, 30 NY2d 183; People v Morhouse, 21 NY2d 66; People v Reddy, 261 NY 479; People v Dixon, 231 NY 111; People v Brown, 30 AD2d 279; People v Brannon, 58 AD2d 34.) III. Defendant was not deprived of a fair trial. (People v Robinson, 36 NY2d 224; Henry v Mississippi, 379 US 443; People v Patterson, 39 NY2d 288; People v Garcia, 51 AD2d 329; People v Gray, 303 NY 660; People v Ashwal, 39 NY2d 105; People v Castillo, 16 AD2d 235, 12 NY2d 732; People v Marks, 6 NY2d 67; People v Mackey, 52 AD2d 662.) IV. The verdict was not repugnant and was properly accepted by the trial court. (Dunn v United States, 284 US 390; People v Pugh, 36 AD2d 845; People v Alcudia, 59 AD2d 786; People v Bullis, 30 AD2d 470; People v Pierce, 40 AD2d 581; People v Williams, 47 AD2d 262; People

      v Steffens, 12 AD2d 962; People v Patterson, 39 NY2d 288; Henry v Mississippi, 379 US 443.)
   OPINION OF THE COURT

Jones, J.

There is in this record, after excising all evidence which depends for its probative worth and relevance on testimony of the accomplices, sufficient independent proof to meet the requirements for corroboration under CPL 60.22 (subd 1).

On June 6, 1977, about 10:00 p.m., defendant entered O’Con-nor’s Grocery Store oh Judson Street in Albany, New York. He had been in the store previously and was known to James O’Connor, the proprietor. After he had been on the premises 5 or 10 minutes defendant asked where the toilet paper was. At the time of his inquiry he was standing in the rear of the store, about two feet from the counter on which were stacked 8 or 10 packages of toilet paper, four rolls to a package. O’Connor, offering to get the toilet paper, came around the checkout counter and proceeded to the back of the store where defendant was standing and the toilet paper was located. Defendant took a roll of the toilet paper and followed O’Con-nor back to the front of the store.

Just before O’Connor reached the checkout counter, Roger Lee Nelson, who was not known to O’Connor, stopped him with a gun and announced, "This is a stickup.” Defendant exclaimed, "Oh, he’s got a gun, he’s got a gun”, and addressing Nelson, added, "Don’t shoot me, Mister. I’m only a customer.” Thereupon Nelson ordered defendant to take out O’Connor’s wallet. Defendant reached into O’Connor’s right rear pocket and removed the wallet. O’Connor grabbed the wallet from defendant and Nelson took it from O’Connor. In the meantime Henry Edge who accompanied Nelson and was also unknown to O’Connor had gone behind the checkout counter and emptied the cash register. Nelson and Edge then ran out of the store. There were some teen-agers outside. As two of them started after the robbers, defendant who had come outside cautioned them, "Don’t chase him. He’s got a gun and it’s loaded.” O’Connor went to the call box where he called the police who immediately came to the store.

After the police had completed their on-the-scene investigation at the grocery store, they explained to defendant that, inasmuch as he was a witness to the crime, they would like to take a written statement from him as to what he had observed. Defendant offered to come down to the police station if the police would pick him up at 9 Wilkins Avenue where he said that he lived. About 11:15 p.m. the police went to 9 Wilkins Avenue and found defendant who accompanied them to the police station where he gave a written statement. Both defendant and O’Connor, who had also given a statement, viewed police department photographs in an attempt to identify the two robbers. Neither was able to make an identification although pictures of Nelson and Edge were included in the photographs displayed.

On July 1, 1977 the police arrested Nelson and Edge on an unrelated charge. As Nelson was being booked he was informed that he, Edge and defendant had been implicated in the robbery of O’Connor’s Grocery Store, whereupon Nelson asked to make a statement. After learning that Nelson had given a statement, the next day Edge also expressed a desire to make a statement regarding the O’Connor robbery. Nelson and Edge stated in substance that they, with defendant, had planned the robbery of the grocery store at defendant’s cousin’s house at 9 Wilkins Avenue; that their plan called for defendant to enter the store first to divert O’Connor, who had some trouble with his eyes, by calling him to the rear of the store to get some toilet paper and for Nelson, with a gun furnished by defendant, and Edge then to enter the store; that Edge was to take the money out of the cash register while Nelson held the gun; that after the robbery had been completed all three returned to defendant’s cousin’s house at 9 Wilkins Avenue where the proceeds of the robbery were divided, and Nelson and Edge then left.

After a jury trial at which defendant’s statement and the statements of Nelson and Edge were received in evidence and both Nelson and Edge testified, defendant was found guilty of one count of robbery in the second degree and acquitted of another. The Appellate Division affirmed the judgment of conviction.

Only one issue of any substance is tendered on the appeal to our court. Defendant contends that the inculpatory testimony of Nelson and Edge, concededly accomplices in the criminal transaction as the trial court charged, was not sufficiently corroborated by independent proof to meet the requirements of CPL 60.22 (subd 1), which provides: "A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.” The People rely for such corroborative evidence on three items of proof: the presence and conduct of defendant in the grocery store, what is characterized as defendant’s deliberate failure to identify the photographs of Nelson and Edge, and defendant’s return to 9 Wilkins Avenue and his participation in the division of the robbery spoils.

The mandate of the statute is that there shall be evidence, in addition to that furnished by the accomplice, "tending to connect the defendant with the commission” of the crime. And the role of the additional evidence is only to connect the defendant with the commission of the crime, not to prove that he committed it. The accomplice testimony, if credited by the jury, may serve the latter purpose, provided that there is other proof to satisfy the "tending-to-connect” requirement. In the present case our attention is focused on the sufficiency of the nonaccomplice evidence.

To meet the statutory mandate the corroborative evidence must be truly independent; reliance may not to any extent be placed on testimony of the accomplice for to do so would be to rely on a bootstrap. "The independent evidence must be material evidence other than that of the accomplice and must fairly and reasonably tend to connect the defendant with the commission of the crime * * * It may not depend for its weight and probative value upon the testimony of the accomplice” (People v Kress, 284 NY 452, 460; «emphasis in original). If there is such independent evidence of connection, that evidence will serve to lend support to the testimony of the accomplice that the defendant was involved in the criminal transaction. It will counter any inference that the accomplice, without warrant, sought for reasons of his own to implicate the defendant — the risk to which the statute is addressed. The objective of the statute is not to require bolstering of the testimony of the accomplice as a witness or to lend credibility to the details of his testimony; rather the purpose of the statute is to protect the defendant against the risk of a motivated fabrication, to insist on proof other than that alone which originates from a possibly unreliable or self-interested accomplice (People v Daniels, 37 NY2d 624). It is for this reason that the so-called corroborative evidence must stand on its own. To permit the testimony of the accomplice himself to import meaning or significance into the independent proof would furnish no assurance that the independent proof was not itself subject to the very untrustworthiness against which the statute seeks to protect.

Turning, then, to the present case, we conclude that no reliance may properly be placed on the independent proof that defendant failed to identify the photographs of his accomplices or that he was at 9 Wilkins Avenue when the police called for him. In both instances the probative worth, even the relevance of the proof, depends entirely on testimony furnished by the accomplices whose testimony it is necessary to "corroborate”. If the oral and written testimony of Nelson and Edge be excised there is no proof that defendant knew either of them or otherwise had any reason to recognize them or their pictures. That being so his failure to identify the photographs shown him by the police has no probative worth or relevance. Similarly, without the testimony of the accomplices there is no proof with respect to any division of the spoils of the robbery or defendant’s participation therein, or that 9 Wilkins Avenue was anything more than an address at which, the police had been told by defendant that he could be found and where they in fact found him. Although part of the narrative, the proof with respect to 9 Wilkins Avenue is wholly nonindicative with respect to the crime charged without the linking testimony of the accomplices.

We are left then with the testimony concerning defendant’s presence and conduct at the scene of the crime. We conclude, in the circumstances of this case, that the independent proof in this regard suffices to meet the command of the statute. It is pertinent to restate that the function of the independent evidence is not to bolster the details to which the accomplice has testified, but to give reasonable assurance that defendant has not been improperly implicated in the criminal transaction. So, recently, in People v Cunningham (48 NY2d 938) we held that where a defendant was charged with having made a sale of controlled substance to an accomplice, independent proof that the accomplice had sent money to the defendant and that it had been received by him about the time of the alleged sale met the statutory requirement. It was the facts of payment and of receipt of money which sufficed to connect the defendant with the commission of the crime, without any reference to the accomplice’s testimony as to the purpose for the transfer of the money.

We agree with defendant’s contention that, inasmuch as there could have been an innocuous explanation for his being in the grocery store, proof of his mere presence there would not necessarily be sufficient in the circumstances of this case. There is more here, however, than mere presence on the scene. O’Connor’s testimony was that defendant, standing at the back of the store, but two feet from the counter where toilet paper was openly stacked, asked where the toilet paper was located. Defendant’s inquiry succeeded in drawing O’Con-nor’s presence and attention away from the checkout counter. Defendant orally drew attention to the fact that Nelson had a gun. Without a moment’s hesitancy he executed Nelson’s order to remove O’Connor’s wallet from his rear pocket. As the robbers fled it was defendant who followed them out to the street and cautioned two teen-agers who would have chased after them not to do so because one had "a gun. It is significant that defendant added explicitly that the gun was loaded, something which an innocent bystander could have only surmised.

The determinative question is not whether this independent proof conforms to and bolsters Edge’s story of the planning and execution of the robbery — obviously it does that. The critical issue is whether the conduct of defendant, objectively evaluated independent of the coloration supplied by Edge’s testimony, tends to connect defendant with the commission of the robbery of O’Connor’s Grocery Store.

It may, of course, be said that each of the particulars of this independent proof, taken separately and without reference to the accomplice testimony, is innocent and nonindicative. It is also fair to say, however, that the fact that defendant drew O’Connor to the rear of the store on what appears to have been a pretext inquiry, that as an apparent bystander he volunteered an escalating reference to the gun held by the robber, that he promptly co-operated with the gunman in extracting O’Connor’s wallet, that unbidden he followed the departing robbers to the street and then discouraged any pursuit of them by statements not only that one had a gun but that it was loaded, taken cumulatively, could support a reasonable inference that he was an adjunct to the robbery. The independent proof therefore constituted, in the words of the statute, "evidence tending to connect the defendant with the commission” of the robbery.

We have examined defendant’s other contentions and find them to be of no merit for the reasons stated in the memorandum at the Appellate Division (70 AD2d 740).

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

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

Order affirmed.

       Presence at the scene of the crime alone might suffice in another case, as for example, a case in which there was no plausible hypothesis therefor other than that the defendant was a likely participant in the criminal transaction, or, even if there were an innocent explanation therefor, if the circumstances of the crime itself were otherwise such as to import corroborating significance.