author: Chief Judge Cooke. Gabrielli, J. Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Roger Belton, Appellant.
    Reargued November 16, 1981;
    decided February 11, 1982

      POINTS OF COUNSEL

      Paul J. Cambria, Jr., and Barbara Davies Eberl for appellant.
    The warrantless search of appellant’s zippered jacket in the absence of exigent circumstances while it was within the exclusive control of the police (and outside of appellant’s reach) and the seizure of contraband from its zippered recesses violates section 12 of article I of the New York State Constitution. Thus this court must adhere to its original judgment, which decision is based on the State constitutional prohibition against warrantless searches and seizures. (People v Belton, 50 NY2d 447; People v Caldwell, 53 NY2d 933; People v Roman, 53 NY2d 39; People v Knapp, 52 NY2d 689; People v Howard, 50 NY2d 583; Oregon v Hass, 420 US 714; Cooper v Morin, 49 NY2d 69; People v Marsh, 20 NY2d 98; People v Weintraub, 35 NY2d 351; People v Kelly, 77 Misc 2d 264, 79 Misc 2d 534.)

      James R. Harvey, District Attorney (R. Michael Tontillo of counsel), for respondent.
    The search of appellant’s jacket incident to his lawful arrest was neither violative of the Fourth Amendment to the United States Constitution nor of its counterpart, section 12 of article I of the New York State Constitution. (People v Belton, 50 NY2d 447; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; People v Isaacson, 44 NY2d 511; Cooper v Morin, 49 NY2d 69; People v Calhoun, 49 NY2d 398; People v Knapp, 52 NY2d 689; People v Hodge, 44 NY2d 553; People v Gleeson, 36 NY2d 462; People v Howard, 50 NY2d 583; Jones v United States, 357 US 493.)
   OPINION OF THE COURT

Chief Judge Cooke.

The United States Supreme Court having disagreed with our perception of the requirements of the Fourth Amendment to the United States Constitution and reversed our earlier decision, this case comes once again to this court. Defendant urges that, although the search in question has been held valid under the Federal Constitution, we should hold that it violated section 12 of article I of the State Constitution, a contention not confronted when the case was previously before us. The identical wording of the two provisions does not proscribe our more strictly construing the State Constitution than the Supreme Court has construed the Federal Constitution (see Sibron v New York, 392 US 40, 60-61; Cooper v California, 386 US 58, 62). We do not find it necessary to consider the Supreme Court’s rationale as applied to our Constitution, however, for we now hold on a different rationale that the search and seizure were not improper under the State Constitution. The evidence sought to be suppressed was, therefore, admissible and defendant’s conviction should, in consequence, be affirmed.

The facts are uncomplicated. On April 9, 1978, a State trooper stopped a car speeding along the State Thruway in Ontario County. Upon smelling marihuana and seeing on the car floor an envelope of a type frequently used in sales of that substance, he ordered defendant and the three other occupants out of the car and then patted them down. He inspected the envelope and ascertained that it did contain marihuana. The trooper placed the four persons, who were still standing outside the car, under arrest. He then entered the vehicle, searched the passenger compartment and, finding defendant’s jacket lying on the back seat, opened its zippered pocket and discovered a small amount of cocaine. After defendant’s motion to suppress the cocaine was denied, he pleaded guilty to sixth degree criminal possession of a controlled substance.

The Appellate Division affirmed defendant’s conviction. This court, however, reversed and held that the cocaine should have been suppressed because the warrantless search of defendant’s jacket violated the Fourth Amendment to the United States Constitution (People v Belton, 50 NY2d 447). The Supreme Court, extending the rationale of Chimel v California (395 US 752), has now held that the Fourth Amendment did not prohibit the warrantless seizure and search of a closed container within the passenger compartment of an automobile shortly after the arrest of the vehicle’s occupants. It ruled that even though the search of the zippered jacket pocket took place after the occupants had left the vehicle and been placed under arrest, the search was permissible as incident to the arrest, and the cocaine admissible as the product of a proper search incident to lawful arrest (New York v Belton, 453 US 454). It found no need, in view of that conclusion, to consider the “automobile exception” to the warrant requirement, although as it acknowledged (453 US 454, 462-463, n 6, supra), the court had previously recognized the exception (see Arkansas v Sanders, 442 US 753; United States v Chadwick, 433 US 1; Carroll v United States, 267 US 132).

A majority of this court now concludes that the search which followed defendant’s lawful arrest was permissible under the State Constitution under the automobile exception to the warrant requirement.

By interposing the requirement of a warrant issued judicially, upon information attested by oath or affirmation and which establishes probable cause, the State Constitution protects the privacy interests of the people of our State, not only in their persons, but in their houses, papers and effects as well, against the unfettered discretion of government officials to search or seize. To this proscription against “unreasonable searches and seizures”, certain narrow exceptions have been recognized. One such exception is the search incident to arrest, the classic statement of which is in Chimel v California (395 US 752, supra). It is grounded in protecting the safety of the arresting officer by permitting him to search for and seize weapons when there is reason to fear for his safety and in preventing the person arrested from destroying evidence of criminal involvement by permitting the arresting officer to search for and seize such evidence.

Until the Supreme Court’s decision in the instant case, the search has been limited both temporally and geographically, a search being upheld only when it closely follows arrest and is of the person of the individual arrested and the area within his immediate reach (the “grabbable” area). In extending Chimel to the facts of this case, in which defendant’s jacket was neither on his person nor within his reach (he being outside the vehicle and the jacket being inside with its pocket zippered), the Supreme Court has departed from the rationale in Chimel. Once the exception is employed to justify a warrantless search for objects outside an arrested person’s reach it no longer has any distinct spatial boundary. As Judge Wachtler, dissenting in People v Brosnan (32 NY2d 254, 267), put it, “search and seizure law [becomes] uncontrollable when the rubric [is] adopted and the rationale discarded.”

A separate exception to the warrant requirement is that recognized with respect to automobiles. Its predicate is the reduced expectation of privacy associated with automobiles and the inherent mobility of such vehicles (see Cady v Dombrowski, 413 US 433, 442; see, generally, 2 La Fave, Search and Seizure, pp 508-544). As the Supreme Court has noted, “the configuration, use, and regulation of automobiles often may dilute the reasonable expectation of privacy that exists with respect to differently situated property” (Arkansas v Sanders, 442 US 753, 761, supra). Among the factors that contribute to this decreased expectation are that automobiles “operate on public streets; they are serviced in public places; *** their interiors are highly visible; and they are subject to extensive regulation and inspection” (Rakas v Illinois, 439 US 128, 154 [Powell, J., concurring]; see South Dakota v Opperman, 428 US 364, 368; Cardwell v Lewis, 417 US 583, 590-591 [plurality opn]). In addition, the mobility of automobiles often makes it impracticable to obtain a warrant (see United States v Chadwick, 433 US 1, 12, supra; Carroll v United States, 267 US 132, 153, supra).

Logically, these considerations should apply to containers within the passenger compartment as well as to the compartment itself. Such containers, as distinct from their contents, are exposed to public view, and generally are subject to the same risk of theft or intrusion as other articles in the passenger compartment. Likewise, the special problems created by the mobility of automobiles apply equally to containers in the compartment. In both cases, the impracticability of obtaining a warrant and the danger that evidence may be lost in the interim merge as supportable bases for an exception to the warrant requirement.

The automobile exception has, however, been subject to the limitations inherent in the factors which are its predicate. Where the special mobility of autpmobiles is no longer a factor because the vehicle itself has been seized and impounded by the police, a warrantless search of the vehicle or of a closed container in the passenger compartment made after impoundment of the vehicle has been held justified only when the contents were by their nature sufficiently discernible to be said to be openly visible or some special exigency existed (Preston v United States, 376 US 364; see People v Roman, 53 NY2d 39; cf. Arkansas v Sanders, 442 US 753, supra).

Justification for an automobile search contemporaneous with a valid arrest arises, however, not only from the mobility of an automobile, or the reduced expectation of privacy as to materials within the automobile, or both, but also from the circumstances which validate the arrest. Thus, by way of contrast, a motorist stopped for a traffic infraction may not be searched unless when the vehicle is stopped there are reasonable grounds for believing the driver guilty of a crime, as distinct from a traffic offense (People v Marsh, 20 NY2d 98, 101). However, a valid arrest for a crime authorizes a warrantless search — for a reasonable time and to a reasonable extent — of a vehicle and of a closed container visible in the passenger compartment of the vehicle which the arrested person is driving or in which he is a passenger when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made (as possibly containing contraband or as having been used in the commission of the crime) or there is reason to believe that a weapon may be discovered or access to means of escape thwarted (see People v De Santis, 46 NY2d 82, 88-89; People v Weintraub, 35 NY2d 351). In the present case, in light of the discovery of the marihuana-filled envelope on the car floor and the odor of the substance, there clearly was reason to believe that the automobile might contain other drugs (cf. Dyke v Taylor Implement Mfg. Co., 391 US 216, 221-222).

In conclusion, then, we hold, that where police have validly arrested an occupant of an automobile, and they have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein. The search of defendant’s jacket as it lay on the back seat was therefore proper, and the evidence seized admissible.

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

Gabrielli, J.

(concurring). I cannot subscribe to the majority’s limited analysis, for I firmly believe that the court should simply affirm the determination of the Supreme Court on remand, without further comment. While I agree that the search of defendant’s jacket is indeed justified under the automobile exception to the warrant requirement based, as the majority opinion rationalizes, upon Federal constitutional grounds (Arkansas v Sanders, 442 US 753; United States v Chadwick, 433 US 1; Carroll v United States, 267 US 132) (p 53), I can see no reason for relying solely upon this rationale in light of the clear holding and conclusion of the Supreme Court that the search in this case was proper because it was incident to a lawful custodial arrest.

When this case was previously before our court, a majority held that the search of defendant Belton’s jacket by the arresting officer could not be justified as incident to his lawful arrest. On appeal, the Supreme Court reversed and held that the search was justified upon this very ground, concluding that no invasion of defendant’s Fourth Amendment rights took place. Now, on remand, the majority expressly rejects the rationale articulated by the Supreme Court, under, the banner of our Státe Constitution, and upholds the search leading to defendant’s conviction upon an independent rationale not addressed or mentioned by the majority on the previous appeal in this court. I find this procedure to be untenable for several reasons.

First, I find it anomalous that the majority would justify the search of Belton’s jacket under the automobile exception to the warrant requirement, using an analysis which relies entirely upon Federal constitutional principles (see Arkansas v Sanders, supra; United States v Chadwick, supra; Carroll v United States, supra), when on the prior appeal the majority struck down the search of defendant’s jacket altogether. The court could have upheld defendant’s conviction on the initial appeal on the basis of the automobile exception to the warrant requirement, but by then reversing defendant’s conviction the majority necessarily flatly rejected the application of the automobile exception to these facts.

More fundamentally, I question the propriety of the majority^ interpretation of section 12 of article I of our State Constitution in a manner differing from the Supreme Court’s interpretation of the Fourth Amendment of the United States Constitution. To be sure, the States are free to grant protections to their citizens beyond those within the scope of the Bill of Rights (see Oregon v Hass, 420 US 714). Thus, conceivably, the provisions of our State Constitution may impose greater restrictions on police activity than are imposed by the Federal Constitution. However, the mere fact that our State Constitution might establish greater restrictions on police activity does not compel the conclusion that it does establish such greater restrictions. Indeed, although this court has the power to interpret our own State Constitution, it may not fashion restrictions upon otherwise legitimate and acceptable police activity unless these restrictions are embodied within the clear terms of our Constitution. Our power to interpret the State Constitution is not tantamount to the power to legislate.

The operative language of section 12 of article I of our State Constitution is identical to the language of the Fourth Amendment to the United States Constitution. Recently, by an unanimous court in People v Ponder (54 NY2d 160), we held that this identity of language supports a policy of uniformity of interpretation. In fact, we there stated: “section 12 of article I of the New York Constitution conforms with the Fourth Amendment regarding the proscription against unreasonable searches and seizures, and this identity of language supports a policy of uniformity in both State and federal courts”. Particularly in view of this circumstance, I fail to see any basis upon which to renounce the sound rationale articulated by the Supreme Court in the present case.

Moreover, wholly apart from the power ostensibly assumed by both the majority and dissent to reject the analysis of the Supreme Court, I perceive no justifiable reason for doing so. In formulating its conclusion that upon the lawful custodial arrest of the occupant of an automobile, a police officer may, as a contemporaneous incident to that arrest, search the passenger compartment of that automobile, the Supreme Court endeavored to create a workable rule for an area theretofore enveloped in confusion. The court noted that “[w]hen a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.” (New York v Belton, 453 US 454, 459-460.) The majority, by its decision to reject the theoretical underpinnings of the Supreme Court’s holding in this case, leaves the citizens and law enforcement officials of New York in a state of continued confusion. The task of discerning the differing limits of permissible police conduct in regard to automobile searches under the Federal and State Constitutions is a burden which we should not place upon our citizens or our law enforcement officials at this juncture, particularly when one of our goals in this area should be to create workable and understandable rules which adequately protect the rights of our citizens while assuring effective administration of the criminal law. In this area involving rapidly unfolding roadside encounters, there should not be two apparently inconsistent rules with respect to the police officer’s power to search. If the police officer obeys the mandate of the Fourth Amendment to the Federal Constitution, his actions should not be held to be invalid under the State Constitution. Providing the police officer in the field with a consistent, easily followed guideline would certainly enhance the effectiveness of the police and, in the long run, should also provide greater protection for the individual. Mixed and inconsistent signals from the courts would be intolerable and perverse, not only because they create the false impression of judicial irresolution but because confusion often leads to subtle erosion of the rights sought to be protected.

For the reasons set forth herein, I would affirm the order of the Appellate Division and uphold defendant’s conviction.

Fuchsberg, J.

(dissenting). On this case’s second go round in this court, I remain convinced, as was the court when the matter was last here, that the warrantless search of Belton’s jacket, as it lay on the back seat of the unoccupied automobile, fell outside the permissible scope of a search-incident-to-an-arrest. I am no less so now that the court newly elects to act under the State rather than the Federal Constitution. Interestingly, however, though the majority now professes that it is not fettered by the Federal Constitution in this respect, it avoids answering the question as to whether its original-search-incident-to-arrest stand is as valid under New York’s search and seizure clause (NY Const, art I, § 12) as it was when the court deferred to the Supreme Court. Instead, turning its back on its prior convictions and reaching for a rationale that the parties themselves have not urged upon us, to conform its result to that espoused by the Supreme Court it concludes that the search was permissible under the State Constitution under the so-called “automobile exception”.

Specifically, I cannot subscribe to the view that our State Constitution provision, which evinces an unequivocal concern that warrantless searches be strictly limited, can have intended to support the search on this much-criticized theory (see infra, at p 66). To the contrary, I am persuaded that fidelity to our constitutional standards precludes the warrantless search of a “container” which, having come under police control, presents no “exigency” — save as one arbitrarily may choose to characterize the occasion as urgent for no better reason than it was found in a motor vehicle. Nor, in this regard, given exclusive police control, does it seem other than specious to draw a distinction over the happenstance that a “container”, be it luggage, a briefcase, a parcel or a garment whose pockets provide a private receptacle for one’s wallet, keys or other possession, was placed in the tonneau of the car rather than in the trunk. My reasons follow.

But first, since the present majority and I, our previous reliance on the Federal Constitution having been rebuffed, now turn to the State Constitution, comment on this score is in order. There is, of course, nothing unprecedented or unique in a sovereign State’s assertion of its privilege to more stringently safeguard individual rights. The Supreme Court has repeatedly maintained that the Federal Constitution establishes only a base level of protection for individual rights and that “a State is free as a matter of its own law to impose greater restrictions on police activity” (Oregon v Hass, 420 US 714, 719; see, e.g., Barker v Wingo, 407 US 514, 523; Sibron v New York, 392 US 40, 60-61; Cooper v California, 386 US 58, 62; see, generally, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489).

Indeed, even where the language of the two Constitutions is precisely the same, there need be no uniformity of interpretation (see People v Elwell, 50 NY2d 231, 235; Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159-161; People v Isaacson, 44 NY2d 511, 519-520; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84). For history teaches that the Federal Bill of Rights, when adopted, in the main mirrored corresponding pre-existing provisions of the Constitutions of the newly independent States and not the reverse (see 1 Schwartz, The Bill of Rights: A Documentary History, pp 199, 206, 383; vol 2, p 1204). Indeed, Revolutionary diarists reveal that the drafters of the Federal Constitution contemplated that the States would remain the chief defenders of these rights (The Federalist Papers, No. 45 [Madison], No. 17 [Hamilton], both quoted in Mosk, The State Courts in American Law: The Third Century [Schwartz ed], at p 223). Thus, so long as freedom of the individual is thereby enlarged rather than diminished, recourse to State Constitutions for vindication of such regional right to differ was provided. New York has not hesitated to avail itself of this fundamental principle of Federalism (e.g., Bellanca v State Liq. Auth., 54 NY2d 228; People v Elwell, supra; Cooper v Morin, 49 NY2d 69; Sharrock v Dell Buick-Cadillac, supra; People v Isaacson, 44 NY2d 511, supra; People v Hobson, 39 NY2d 479).

Not unrelated to the accelerating pace at which States have come to rely on their own Constitutions are the somewhat correspondingly increased number of instances in which an important conceptual shift or troublesome indecision by the Supreme Court has disturbed the symmetry of State law whose design had been influenced by the Federal Constitution alone (see Mosk, supra, pp 216-220, and cases collected thereat; Wilkes, The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 Ky LJ 421, 450; Falk, A More Than “Adequate” Nonfederal Ground, 61 Cal L Rev 273, 277-279, ns 17, 18). The question for State courts then may become: Are we endlessly to march up and down the jurisprudential hill to the ever-present beat of the Supreme Court’s drum?

A well-nigh perfect example of the problem is found in the pair of Supreme Court decisions which includes the one returned to us now (New York v Belton, 453 US 454). It is no coincidence that it and Robbins v California (453 US 420) were handed down together. The two are very close on their facts. Opinions in one take note of those in the other. Both involve an initial stop of an automobile for a traffic violation, pat-down of the occupants, their arrest at the scene and a search at the scene of a personal “container” found in the automobile. In Belton, the “container” was a leather jacket whose zippered pockets were closed; in Robbins, it was a wrapped and sealed package. The only difference of any consequence is that in Belton the “container” was in the passenger compartment of the automobile, while in Robbins it was found in the trunk.

In disposing of these cases, seven different Justices wrote more than that number of opinions, which, by and large, were as varied as varied can be. In delivering the opinion of the court in Belton, Justice Stewart held that, though the defendant was separated from the car and his jacket was not within his reach when he was arrested, it nevertheless was deemed subject to his “immediate control” and therefore its search was an “incident to a lawful custodial arrest” (New York v Belton, 453 US 454, 460, 462, supra). On this basis, Justice Stewart was willing to automatically expose a closed container located in the passenger compartment of a car to a rionexigent, warrantless search. In contrast, in the plurality opinion which he authored in Robbins, the same Justice wrote that a closed package found in a car trunk was entitled to the same protection that a closed container discovered anywhere else would be because of the individual’s “expectation that the contents would remain free from public examination”. That is, a search warrant was required.

Justice Rehnquist, in providing one of the votes for the 5 to 4 result in Belton, in turn, concurred only because the court did “not find it necessary to consider the ‘automobile exception’” and because it was unwilling to abolish the exclusionary rule (New York v Belton, supra). Justice Stevens, in a separate concurrence, then explained that he was contributing his vote for the reasons elaborated in his Robbins dissent. There he took issue with the Robbins plurality and Justice Powell and opined that the “automobile exception” was applicable to both cases and that it permitted the warrantless search of the package in the Robbins trunk and the jacket on the Belton back seat.

Expressing even greater differences than did the concurring members of the slender and doctrinally divided Belton majority, Justice Brennan, in a dissent joined by Justice Marshall, branded the majority’s view that a car’s interior is always within the immediate control of an arrestee “a fiction”, “a great disservice”, “a dangerous precedent”, “analytically unsound”, “inconsistent with every significant search-incident-to-arrest case” and insisted that, even if expediency rather than principle were a permissible approach, the court had “undermined rather than furthered the goal of consistent law enforcement” (New York v Belton, supra [dissenting opn, Brennan, J.], at pp 466, 469, 468, 468, 468, 471).

In a separate dissent authored by Justice White, and in which Justice Marshall also joined, we have the flat statement that the writer just “[could] not subscribe” to a rule under which “searches of luggage, briefcases and other containers in the interior of an auto are authorized in the absence of any suspicion whatsoever that they contain anything in which the police have a legitimate interest” (New York v Belton, supra [dissenting opn, White, J.]).

Writing as a concurrer in Robbins, but speaking of Belton, Justice Powell noted his general agreement with a “bright-line” rule sanctioning, as an incident to an arrest, the search of containers found in a passenger compartment but not those in the car trunk. He differed, however, with the Robbins plurality’s extension of the warrant requirement to every closed opaque container except those which, because of a revealing shape or other characteristic, may be said to place their contents in plain view. Justice Pow-. ell would require a warrant “only when the container is one that generally serves as a repository for personal effects or that has been sealed in a manner manifesting a reasonable expectation that the contents will not be open to public scrutiny.” (Robbins v California, supra, at p 432 [concurring opn, Powell, J.].) In addition, referring to the “presently fractured Court”, Justice Powell also reflected that “the law of search and seizure with respect to automobiles is intolerably confusing” and that “[t]he Court apparently cannot agree even on what it has held previously, let alone on how these cases should be decided.” (Id., at pp 435, 430.)

Justice Blackmun, in yet another writing, dissented in Robbins and would have adopted a rule that a warrant not be required to search and seize any personal property found in an automobile which itself is seized without a warrant. And Justice Rehnquist, in a second dissent, in which he termed the “preference for a warrant” a “judicially-created” one, reiterated his oft-expressed conviction that the Fourth Amendment’s “no warrants shall issue but upon probable cause” language does not mandate warrants, but only qualifies such as “may issue” (Robbins v California, supra [dissenting opn, Rehnquist, J.], at p 438; emphasis added). He caps his comments by dubbing the court’s decisional course in this area “twisting and turning”.

If there then is anything this Belton-Robbins survey of contemporary Supreme Court institutional thinking on this subject strongly suggests, it is that, in being compelled to focus on our State Constitution, we take the occasion to return to first principles. Broadly stated, in the context of search and seizure law, this enjoins us to recognize that the intent of our State Constitution is that we never lose sight of the goal of assuring the utmost individual privacy and liberty. This is not to say that the pragmatics of societal • protection are to be ignored, but, rather, in the words of Justice Harlan, that “endorsement of a warrantless invasion of that privacy where another course would suffice is simply inconsistent with our repeated stress on * * * ‘adherence to judicial processes’” (Chambers v Maroney, 399 US 42, 64 [Harlan, J., concurring in part and dissenting in part]; emphasis added). As this wise counsel suggests, only such adherence, and not the illusory expedient of one “bright line rule” or another, be it the one so discordantly denominated by the Supreme Court or be it the less labeled one our majority ventures today, can hope to lead us out of the decisional morass.

Now, like most constitutional guarantees, section 12 of article I of our State Constitution, is not self-executing. So, its drafters had enough foresight not only to articulate the expectation of freedom from unreasonable searches, but, by setting up the warrant requirement, to draw on what to them was the familiar dynamics of checks and balances (see, e.g., The Federalist Papers, No. 48 [Madison], No. 49 [Hamilton or Madison], No. 51 [Hamilton or Madison]). Self-evident is the design that well-intentioned invasions by overzealous officers, who might forget that over the long haul a good end does not justify an illicit means, will be curbed by the foreknowledge that, save in an exigency, they must first satisfy the detached magistrate that the contemplated action is warranted (see United States v United States Dist. Ct., 407 US 297, 317; Coolidge v New Hampshire, 403 US 443, 481).

For these reasons, one must certainly would have thought, especially after the Supreme Court spoke as it did in Arkansas v Sanders (442 US 753, 758), that it is beyond cavil that “mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant”. And, exceptions to this rule are to be narrowly construed (Mincey v Arizona, 437 US 385, 393; see, generally, Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 358-360). It therefore can come as no surprise that, as one of the members of this court had occasion to note, long before Sanders, “careful study of the [Federal] ‘exception’ cases will reveal that the rationale underlying the case where the exception was established was not that there was a good reason to search, but that there was a good reason why a search warrant could not be obtained” (People v Brosnan, 32 NY2d 254, 267 [Wachtler, J., dissenting]).

In this perspective, I now move to the much criticized “automobile exception”, a “rule by rubric” (People v Brosnan, supra, at p 264), which, in light of the disarray produced in the Supreme Court on this subject after half a century of tacking and filling in its application, I find it regrettable this court today advances. All the more is this so since, .on freshly probing our State Constitution, we are now freer than we are likely to be again to act upon the mistakes of the past.

The vice in the “automobile exception”, which, of course, in essence is but another “bright line rule”, is that, while exigency may permit dispensing with a warrant under the circumstances of a particular case, and though the nature, mobility or other properties of the objects or site of a proposed search surely may enter into a determination of whether failure to obtain a warrant is justified, there is no reason to elevate it to a blanket exception (People v Clark, 45 NY2d 432, citing Preston v United States, 376 US 364; and People v Spinelli, 35 NY2d 77). By thus substituting an inflexible label for a varying condition, our court makes of “[t]he word ‘automobile’ *** a talisman in whose presence the Fourth Amendment fades away and disappears” (Coolidge v New Hampshire, 403 US 443, 461-462). Suffice it to say that the underlying questions that should always be answered, and answered separately in each case, are whether there was probable cause to search and, if there was, whether an exigency compelled such immediacy that a warrant was excused. Absent either, suppression should follow, irrespective of the locus.

The danger of a broadbrush exception approach is evident in this case. The odor of marihuana and the presence of the exposed marihuana envelope could lay the foundation for a finding of reasonable cause that the zippered pockets of the jacket, which gave it the functional character of a container, concealed more of this or like contraband. However, the officer easily could have taken possession of the garment and, thus, by maintaining it in its original zippered state, protected its contents from possible destruction or disappearance. Lacking any exigency, it therefore would have been a simple matter to protect the legitimate interest of the State in the investigation of crime while yet safeguarding the privacy interest of the defendant. Moreover, this would have been equally true, it seems to me, whether the zippered jacket had been found on the back seat or in the baggage compartment.

But the majority here, while it would prohibit such warrantless invasions of containers carried in a motor vehicle’s trunk, condones the opening of closed containers found in a passenger compartment. I must confess I can see no logical reason for such a holding — that is, unless privacy requires “two layers”, a trunk plus a container. Once an individual has concealed an object in a closed, opaque container, the constitutional protection of a warrant must be afforded.

It is also significant that, earlier this year, when we had occasion to deal with a “container” — there an opaque cigarette case found in the passenger compartment of a car — since the automobilist had been arrested and the car itself taken into the possession of the police, we had no trouble with the position I now espouse, unanimously declaring that “[i]t is now clear that even in cases where the seizure is based on probable cause to believe that the item taken from a vehicle contains contraband or evidence of a crime, the right to seize does not include the right to conduct a warrantless search of its contents, absent exigent circumstances (Arkansas v Sanders, supra; see, also, United States v Chadwick, supra; cf. Walter v United States, 447 US 649)” (People v Roman, 53 NY2d 39, 42).

No one then suggested that it represented a grant of greater protection than that which our Constitution demands. True, the Supreme Court, in its Belton-Robbins decisions, now seems to beat a retreat from what it had to say in Sanders only yesteryear. But I am under the impression that the reason we now resort to our State Constitution is that New York’s constitutional principles are at odds with the Supreme Court’s Belton rationale. It thus is dismaying that, armed with our Constitution, we now ally ourselves with forces which move away from Sanders and from Roman. I repeat: another “bright-line rule”, substituting omnibus declaration for particularized analysis of individual cases, does just that.

It is for all these reasons, that I once again would reverse the order of the Appellate Division, grant the motion to suppress and dismiss the indictment.

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

On reargument, following remand by the Supreme Court of the United States, order affirmed.

      . The first unnumbered paragraph of section 12 of article I reads: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      . As distinct from being in “plain view”, which requires that discovery of an object be inadvertent (Coolidge v New Hampshire, 403 US 443, 468; People v Jackson, 41 NY2d 146, 150; see 2 La Fave, Search and Seizure, § 7.5, subds [a], [b]).

      . On the facts of this case we do not reach the questions whether a container which is not only closed but locked or a container within a vehicle’s trunk or baggage compartment comes within the exception. As to containers within the trunk, see Robbins

        v California (453 US 420, 429), plurality opinion and Justice Powell concurring, but note that in granting certiorari in United States v Ross (454 US 891), the Supreme Court directed the parties to address the question whether the court should reponsider Robbins.

        . Contrary to the assertion of the concurrence, today’s holding provides meaningful guidance to police officers. The area that may be searched is clearly delineated, as are the circumstances that justify such a warrantless search.

      . Section 12 of article I provides: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.

      . After each of the four occupants of the motor vehicle had been searched, at the direction of the officer each was placed at a separate portion of the highway. No ingenuity was required for the armed arresting officer to secure the automobile and its contents in this case. Among ready alternatives, he simply could have taken the keys from the driver, locked the stopped vehicle, locked the arrestees in his patrol car and taken them to the station house until the search warrant was obtained.

      . For instance, article XIV of the Massachusetts Declaration of Rights, adopted in 1780, declared that “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws”. (1 Schwartz, The Bill of Rights: A Documentary History, at p 342.)
      Although New York’s Constitution did not contain a provision against unreasonable searches and seizures until 1938, New York’s concern for the guarantee of this individual liberty was made exceptionally plain in 1787 when it ratified the Federal Constitution. It prefaced its ratification with a declaration of rights which it regarded as being implicit in the Constitution. Included was the following search provision: “That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore, that all warrants to search suspected places, or seize any freeman, his papers or property, without information, upon oath or affirmation, of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted.” (See Temporary State Commission on the Constitutional Convention of 1967, Pamphlet 7 [Individual Liberties], at p 47.)

      . That this evaluation enjoys as contemporary a validity as it does an historical one is certified by the following statement in the latest year-end report on the judiciary issued by the Chief Justice of the United States Supreme Court on December 28,1981: “State courts are estimated to handle over ninety-five percent of all the litigation that goes to trial in the United States. They are responsible for first resolving issues arising under their constitutions and statutes and then for passing on matters concerning federal law. It is not surprising that the public’s perceptions of the quality of justice in the United States is largely determined by the quality of justice in the state courts”.

      . Even for the nonce, the end may not yet be in sight. As the majority notes (its n 3), figuratively almost before the ink has dried in Robbins v California (453 US 420), the Supreme Court, in granting certiorari in United States v Ross (655 F2d 1159), already has requested counsel to address the issue of whether Robbins should be reconsidered (454 US 891).

      . Probable cause for Belton’s arrest was based on the presence in the car of a smell of burnt marihuana and of a single envelope marked “supergold”, in which that substance is commonly purchased. Inspection of the envelope’s contents revealed “a small amount of marihuana” (People v Belton, 50 NY2d 447, 449).

      . Not of moment to Justice Stewart was the “personal” or “impersonal” nature of 1 the container (Robbins v California, supra, at p 426). He would make no distinction between them.

      . In part, Justice Brennan states (453 US 454, 469-470) the “problems” he foresees as follows: “Thus, although the Court concludes that a warrantless search of a car may take place even though the suspect was arrested outside the car, it does not indicate how long after the suspect’s arrest that search may validly be conducted. Would a warrant-less search incident to arrest be valid if conducted five minutes after the suspect left his car? Thirty minutes? Three hours? Does it matter whether the suspect is standing in close proximity to the car when the search is conducted? Does it matter whether the police formed probable cause to arrest before or after the suspect left his car? And why is the rule annouhced today necessarily limited to searches of cars? What if a suspect is seen walking out of a house where the police, peering in from outside, had formed probable cause to believe a crime was being committed? Could the police then arrest that suspect and enter the house to conduct a search incident to arrest? Even assuming today’s rule is limited to searches of the ‘interior’ of cars — an assumption not demanded (by logic — what is meant by ‘interior’? Does it include locked glove compartments, the interior of door panels, or the area under the floorboards? Are special rules necessary for station wagons and hatchbacks, where the luggage compartment may be reached through the interior, or taxicabs, where a.glass panel might separate the driver’s compartment from the rest of the car? Are the only containers that may be searched those that are large enough to be ‘capable of holding another object’? Or does the new rule apply to any container, even if it ‘could hold neither a weapon nor evidence of the criminal conduct for which the suspect was arrested’?”

      . “The Justices’ opinions exhibit the chronic lack of agreement that has come to plague fourth amendment jurisprudence” (The Supreme Court, 1980 Term, Search and Seizure, 95 Harv L Rev 251, 253).

      . The warrant requirement is a guide, not a deterrent, to appropriate and efficient police action. As such, it separates the pursuit of crime and the criminal from the innocent and the law-abiding, who otherwise could be ravaged by a police state. As the Supreme Court itself has put it, “the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make * ** * a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law” (McDonald v United States, 335 US 451, 455).

      . (See, generally, Wilson, The Warrantless Automobile Search: Exception Without Justification, 32 Hastings LJ 127, esp at pp 130-132, 158-159; Note, Warrantless Searches and Seizures of Automobiles, 87 Harv L Rev 835.)

      . Of course, not all containers deserve the full protection of the warrant requirement. Their configuration, transparency or other identity-revealing characteristic may signal a disinterest in privacy. So, “some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to ‘plain view,’ thereby obviating the need for a warrant” (Arkansas v Sanders, 442 US 753, 764-765, n 13, supra).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Yvonne Jefferson, Claimant, v Bronx Psychiatric Center et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued January 15, 1982;
    decided February 16, 1982

      POINTS OF COUNSEL

      Thomas J. Spargo and Peter M. Pryor for appellants.
    The employer is entitled to be reimbursed for wages paid pursuant to subdivision 4 of section 25 of the Workers’ Compensation Law even though claimant’s sick leave was used for the 10-day period. (Matter of Adolf v City of Buffalo Bd. of Educ., 50 NY2d 871; Matter of Puglia v Sing Sing Prison, 8 NY2d 891; Matter of Sokoloff v New York State Dept. of Labor, Div. of Safety Serv., 9 AD2d 830; Matter of Rivard v New York State Police State Campus, 46 AD2d 34; Matter of Johnson v General Aniline & Film Corp., 32 AD2d 1003; Matter of Fabian v Link Division-General Precision, 22 AD2d 725; Matter of Knaszak v Buffalo Forge Co., 15 AD2d 971; Matter of Jefferson v Bronx Psychiatric Center, 78 AD2d 922.)

      Robert Abrams, Attorney-General (Morris N. Lissauer, Shirley Adelson Siegel and Henriette Frieder of counsel), for respondent.
    The payments of salary to claimant for the first 10 days of her absence, due to a compensable accident were mandated, were charged to her accumulated sick leave credits and would not be recredited to her sick leave account under any circumstances. Hence the employer was not entitled to reimbursement under section 25 (subd 4, par [a]) of the Workers’ Compensation Law either for “advance payments of compensation” or for “payments to an employee in like manner as wages”. (Matter of Knaszak v Buffalo Forge Co., 15 AD2d 971; Matter of Johnson v General Aniline & Film Corp., 32 AD2d 1003; Matter of Puglia v Sing Sing Prison, 8 NY2d 891; Matter of Sokoloff v New York State Dept. of Labor, Div. of Safety Serv., 9 AD2d 830; Matter of Lynch v Board of Educ., 1 AD2d 362, 3 NY2d 871; Public Loan Co. v Hyde, 47 NY2d 182; Matter of Howard v Wyman, 28 NY2d 434; Matter of Milan v Trico Prods. Corp., 53 NY2d 867; Matter of Adolf v City of Buffalo Bd. of Educ., 50 NY2d 871; Matter of Holcomb v Daily News, 45 NY2d 602.)
   OPINION OF THE COURT

Per Curiam.

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

Under section 25 (subd 4, par [a]) of the Workers’ Compensation Law, an employer’s “advance payment of compensation” or “payments to an employee in like manner as wages” during a period of disability need not be voluntary in order to be reimbursable. So their character is not altered when, as here, they are required to be made pursuant to a collective bargaining agreement. (See Matter of Adolf v City of Buffalo Bd. of Educ., 50 NY2d 871 [contract provision, at p 875].)

While, therefore, without more, this would seem to suggest that the employer should be reimbursed, especially since it had not waived its right either by “filing a document so stating *** [or] by failing to file a claim before compensation is awarded” (Matter of Adolf, supra, at p 872; Workers’ Compensation Law, §25, subd 4, par [a]), the agreement also provides that the first 10 days of sick leave are to be charged against the claimant’s accrued sick leave credits and that such credits once so consumed in any event are not to be restored. Accordingly, even if the “advances” here are reimbursed, the sick leave debits will result in a permanent benefit to the employer, most certainly because they will no longer be available for conversion into additional retirement service credits. A concomitant of the advance, therefore, was that the employee surrendered valuable vested rights in return. It follows that reimbursement of the advance under these circumstances would result in a net benefit to the employer and a net detriment to the employee.

However, our recent cases suggest that reimbursement to an employer is not intended to achieve such a disproportionate result, either to employer or employee. For instance in Matter of Milan v Tricot Prods. Corp. (53 NY2d 867, 868), where an employee received both his regular wages and an award of compensation for a July 4th holiday which had occurred during his period of disability, thus bringing the employee a duplication of benefits, we held that “it cannot be said as a matter of law that [the employer’s] claim for credit for the holiday pay did not come within the purview of section 25 (subd 4, par [a])”. Similarly, in Matter of Lynch v Board of Educ. (3 NY2d 871, affg 1 AD2d 362), we upheld reimbursement for an employer when otherwise an employee would have netted both compensation and full wages for the period of her disability. On the same rationale, in the case before us now, avoidance of an imbalance favorable to the employer correctly dictated denial of its claim.

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

Order affirmed.


author: Chief Judge Cooke.

text:
    The People of the State of New York, Respondent, v Herbert X. Blyden, Appellant.
    Argued January 5, 1982;
    decided February 16, 1982

      POINTS OF COUNSEL

      Leonard J. Klaifiov appellant.
    I. The juror showed actual bias toward defendant and thus the trial court committed reversible error in failing to grant the challenge for cause made by defendant. (People v McQuade, 110 NY 284; People v Branch, 46 NY2d 645; People v Culhane, 33 NY2d 90.) II. The obvious racism of the juror showed implied bias on his part, and the trial court committed reversible error in failing to grant the challenge for cause made by defendant. (People v Oddy, 16 AD2d 585; Crawford v United States, 212 US 183; People v Decker, 157 NY 186; People v Rubicco, 34 NY2d 841.) III. The fact that appellant did not exercise all his peremptory challenges at the time the prospective juror was questioned is irrelevant.

      Edward C. Cosgrove, District Attorney (Kurt T. Sajda of counsel), for respondent.
    I. The expurgatory oath is a viable procedure to overcome “actual bias”. (People v Branch, 46 NY2d 645.) II. The prospective juror unequivocally stated his belief that his opinions would not influence his verdict and that he could render an impartial verdict based on the evidence presented at trial. (People v McQuade, 110 NY 284; People v Culhane, 33 NY2d 90; People v Wilmarth, 156 NY 566; Ham v South Carolina, 409 US 524; People v Martell, 138 NY 595; People v Biondo, 41 NY2d 483; People v Casey, 96 NY 115.) III. Absent a demonstration of racial prejudice or racism, no claim of implied bias can be made.
   OPINION OF THE COURT

Chief Judge Cooke.

After a jury trial, defendant Herbert X. Blyden was convicted of assault in the first degree (Penal Law, § 120.10). The Appellate Division affirmed the conviction. On appeal to this court, defendant, who is black, argues that the trial court committed reversible error when it refused to discharge for cause a prospective juror who voiced hostility to racial minorities. Because the juror never expressly and unequivocally stated that his feeling toward minorities would not affect his verdict and that he could render an impartial verdict based on the evidence, this court reverses defendant’s conviction and remits for a new trial.

Defendant’s trial began on December 4,1979. During an early phase of the jury selection process, a prospective juror responded to a general question by the Judge regarding racial prejudice by indicating that he wished to speak to the Judge. At proceedings in chambers, the juror was questioned by the Judge and attorneys about his feelings toward minorities.

When asked by the Judge to “state your feelings”, the juror responded, “I’m against minorities. Now, not colored, not Indian, but what the government considers minorities. I work on construction, and when that comes up, I get up tight, that is all.” He stated that the cause of his feelings was that “the government says you got to have a certain amount of people, minorities, on a job that is federally funded. And I think I pay taxes the same as anybody else, and that is why I get up tight.”

Upon the Judge’s first inquiry as to whether the juror’s feelings would affect his deliberations, the juror replied, “I don’t know. I don’t know if it would or not, and I wouldn’t want to jeopardize this guy’s case, because of that. That is why I came forward.” The juror repeated these misgivings under questioning by the prosecutor. He then told defense counsel that “I have been known to flip my wig when minorities come into [a conversation]. This summer I wasn’t allowed to go on a job because the next person that went on was a minority. It turned out to be an Indian, they had to put a minority on the next — the next construction.” He added, “I bet a lot of minorities made a lot more money than I did this year. That is what I mean, why I got up tight.”

Finally, in response to the court’s thrice-repeated question whether he could put aside his feelings about minorities, the juror stated, “Yes, I think I could,” “I think I could,” and, “Yes, I think I could.” He also stated “absolutely not” when asked by the Judge if he had made up his mind “about this case on the sketchy information that I gave you”.

Defense counsel challenged the prospective juror for cause, but the Trial Judge denied the challenge. Defendant’s attorney then used a peremptory challenge to remove the juror. Because defendant éxhausted his peremptory challenges before the completion of jury selection, the claimed error in denying his challenge for cause may be considered on this appeal (see CPL 270.20, subd 2).

In determining whether the trial court erred in refusing to discharge the challenged juror for cause, it is necessary to look first to CPL 270.20 (subd 1, par [b]), which authorizes a challenge for cause where the juror “has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial”. This provision reflects the long-standing recognition of “the fundamental rule that an accused person is entitled to be tried by a fair and impartial jury” (People v McQuade, 110 NY 284, 300; see People v Branch, 46 NY2d 645, 652; Reynolds v United States, 98 US 145, 155). Questioning of prospective jurors on voir dire, of course, is crucial to the selection of- an impartial jury (see Ham v South Carolina, 409 US 524; Aldridge v United States, 283 US 308).

In light of the prospective juror’s initial comments, the Trial Judge in this case appropriately permitted further voir dire and took part himself in the exploration of the subject. The question to be resolved is whether the juror’s answers to these subsequent questions overcame the clear indication of bias in the juror’s previous statements.

At common law, a prospective juror’s expression of an opinion or impression bearing on the guilt or innocence of a defendant was conclusive grounds for disqualification (see People v McQuade, supra). In 1872, however, the Legislature enacted the predecessor of the current Criminal Procedure Law provision (L 1872, ch 475, § 1). Codified as subdivision 2 of section 376 of the old Code of Criminal Procedure, the statute provided that a previous expression of opinion or impression indicating “actual bias” could be overcome if the prospective juror “declare on oath, that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied, that he does not entertain such a present opinion or impression as would influence his verdict.”

When the Criminal Procedure Law superseded the old code in 1971, all references to the “expurgatory oath” were deleted (see CPL 270.20). The District Attorney asserts that the oath maintains its vitality, while defendant contends both that it is no longer applicable and that even if it was applicable, it was not satisfied in this case.

In People v Culhane (33 NY2d 90, 104, n 2) this court, although dealing with a case falling under the old Code of Criminal Procedure, noted that under the Criminal Procedure Law “the talismanic expurgatory oath has been abandoned, so that there is no longer any facile method for purging a prima facie showing of bias” and that “the new law gives the Trial Judge greater flexibility and a greater responsibility in determining which veniremen should be excused for cause.” This flexibility is also reflected in the language of the new provision (CPL 270.20, subd 1, par [b]), which focuses on whether the juror “has a state of mind that is likely to preclude him from rendering an impartial verdict” without reference to any mechanical procedure for purging the taint of a prior expression of opinion about the guilt or innocence of the defendant. Thus, to the extent that the old code’s expurgatory oath may have been used as a mere pro forma recitation, it is no longer available.

This is not to say that the rationale underlying the expurgatory oath has no continuing validity (see People v Branch, 46 NY2d 645, 651, supra). To the contrary, it is an effective means of resolving doubt about a prospective juror’s impartiality. When a question is raised regarding a prospective juror’s ability to render an impartial verdict, it is still necessary that the prospective juror in unequivocal terms “must expressly state that his prior state of mind concerning either the case or either of the parties will not influence his verdict, and he must also state that he will render an impartial verdict based solely on the evidence” (People v Biondo, 41 NY2d 483, 485). Furthermore, in considering whether such statements are unequivocal, the juror’s testimony should be taken as a whole. “It is not enough to be able to point to detached language which, alone considered, would seem to meet” the oath’s requirements (People v McQuade, 110 NY 284, 301, supra).

In conclusion, it is essential that all elements of the required statements be voiced, and that they be voiced with conviction. The mere words themselves, however, have no talismanic power to convert a biased juror into an impartial one, although they do nonetheless provide a minimum level of protection. They must be taken in context. A hollow incantation, made without assurance or certitude, is not enough. Where there remains any doubt in the wake of such statements, when considered in the context of the juror’s over-all responses, the prospective juror should be discharged for cause. The costs to society and the criminal justice system of discharging the juror are comparatively slight, while the costs in fairness to the defendant and the general perception of fairness of not discharging such a juror are great. As this court stated in People v Branch (46 NY2d 645, 651-652, supra), “the trial court should lean toward disqualifying a prospective juror of dubious impartiality, rather than testing the bounds of discretion by permitting such a juror to serve. It is precisely for this reason that so many veniremen are made available for jury service.” Even if, through such caution, the court errs and removes an impartial juror, “the worst the court will have done * * * is to have replaced one impartial juror with another impartial juror” (People v Culhane, 33 NY2d 90, 108, n 3, supra).

Turning to the facts of the instant case, it is clear that the prospective juror’s initial statements indicated a hostility to racial minorities that cast serious doubt on his ability to render an impartial verdict. Throughout the further questioning, however, the juror never unequivocally stated that his bias would not influence his verdict' or that he could render an impartial verdict based on the evidence presented. To the Judge’s questions, the juror merely responded that he thought he could put aside his personal feelings and keep an open mind. These answers fall short of the required express and unequivocal declarations. In addition, although the juror’s use of the word “think” might not in every case render his or her statements inadequate (see People v Martell, 138 NY 595), in the context of this juror’s voir dire his responses can be considered nothing other than equivocal and uncertain. The fundamental importance of a defendant’s right to trial by an impartial jury requires more than this.

For these reasons, the order of the Appellate Division should be reversed and a new trial ordered.

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

Order reversed, etc.

       Defendant also, argues that the prospective juror should have been discharged under CPL 270.20 (subd 1, par [c]) because his relationship to defendant was “of such nature that it is likely to preclude him from rendering an impartial verdict”. It is true that “[i]n the case of any of the relationships covered by subdivision (c) an expurgatory oath is not available to purge the taint of bias implied by law from the existence of the relationship” (People v Provenzano, 50 NY2d 420, 424; see People v Branch, 46 NY2d 645, 651). The expressions of animosity toward racial minorities by the juror in this case, however, do not constitute a “relationship” as envisioned by subdivision (c).


author: Jasen, J.

text:
      In the Matter of Michael J. Mashnouk, Appellant, v Frederick Miles, as Acting City Manager of the City of Newburgh, et al., Respondents.
    Argued January 5, 1982;
    decided February 16, 1982

      POINTS OF COUNSEL

      Richard P. Walsh, Jr., and Frederick K. Reich for appellant.
    I. The Legislature intended that firemen being paid pursuant to subdivision 2 of section 207-a of the General Municipal Law should continue to be paid salary increases granted to the bargaining unit. (Matter of Barber v Lupton, 282 App Div 1008, 307 NY 770; Pease v Colucci, 59 AD2d 233; Matter of Birmingham v Mirrington, 284 App Div 721; Matter of Ellis v Fire Chief of City of Ithaca, 29 Misc 2d 37; Cook v City of Binghamton, 48 NY2d 323.) II. Judicial precedent requires that a fireman paid pursuant to subdivision 2 of section 207-a of the General Municipal Law be paid increases in salary granted to the bargaining unit. (Pease v Colucci, 59 AD2d 233; Cook v City of Binghamton, 48 NY2d 323; Matter of Drahos v Village of Johnson City, 80 AD2d 106; Harzinski v Village of Endicott, 83 AD2d 305.) III. The language of the statute requires that a fireman being paid under subdivision 2 remain a member of the fire department entitled to increases in salary. IV. Subdivision 2 of section 207-a should not be construed to work a harsh and unjust result against a fireman who qualifies for an accidental disability retirement allowance. (Matter of Tyler v Gadwood, 195 Misc 674, 279 App Div 1138; Connors v Bowles, 63 AD2d 956; Pease v Colucci, 59 AD2d 233.)

      William -M. Kavanaugh, Corporation Counsel, for respondents.
    I. The memoranda and other documents contained in the addendum to appellant’s brief were not in evidence before the trial court, are not part of the trial record, are not a proper subject for judicial notice, and should be disregarded by this court in deciding this appeal. (Tippetts-Abbett-McCarthy-Stratton v New York State Thruway Auth., 32 Misc 2d 479; Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291; Hunter v New York, Ontario & Western R. R. Co., 116 NY 615; Matter of Yanoff v Commissioner of Educ. of State of N. Y., 64 AD2d 763.) II. The legislative history of the 1977 amendment to section 207-a shows a clear legislative intent not to require cities to pay negotiated pay raises to retired firemen. (Travis v American Cities Co., 192 App Div 16.) III. The wording of the 1977 amendment to subdivision 2 of section 207-a reflects a clear legislative intent that the city’s payment to a fireman retired on New York State accidental disability be based on his salary at the time he retired. IV. Judicial precedent supports the city’s position that firemen retired pursuant to subdivision 2 of section 207-a of the General Municipal Law and section 363 of the Retirement and Social Security Law, should not be granted pay raises that might be negotiated by working firemen. V. The purpose of the 1977 amendment to section 207-a was to increase the level of fire protection in cities throughout the State by reducing the extravagant cost of firemen’s pensions as they then existed. (Cook v City of Binghamton, 48 NY2d 323.)
   OPINION OF THE COURT

Jasen, J.

On this appeal,, we are asked to resolve a narrow issue of statutory interpretation involving section 207-a of the General Municipal Law. The specific question is whether the phrase “regular salary or wages” in subdivision 2 of that statute, defining the accidental disability retirement allowance to be paid a disabled fireman, includes salary increases paid to active firemen when such increases were negotiated after the award of the disability allowance. We hold that it does.

The facts are not in dispute. On December 23, 1977, petitioner, while in the course of his employment as a fireman for the respondent City of Newburgh, seriously injured his knee. Although he briefly returned to work in February of 1978, reoccurrence of pain in and lack of support from the injured knee prevented petitioner from performing his duties. At that time, petitioner was 33 years old and his annual salary was $13,867. On May 3, 1979, petitioner was granted an accidental disability retirement allowance under section 363 of the Retirement and Social Security Law.

Thereafter, pursuant to subdivision 2 of section 207-a of the General Municipal Law, the city paid petitioner the difference between his accidental disability retirement allowance and his regular salary of $13,867. Effective January 1, 1980, an across-the-board salary increase was awarded to the Newburgh fire fighters. By letter dated January 24, 1980, the city notified petitioner that payments made to him pursuant to section 207-a of the General Municipal Law would not include any salary increases, but would continue to be computed on the basis of petitioner’s salary at the time he was awarded the accidental disability retirement allowance.

Petitioner then commenced the present article 78 proceeding, seeking to compel the respondents — Frederick Miles, Acting City Mamager, and the City of Newburgh — to recompute the payments made to him under section 207-a of the General Municipal Law by taking into account salary increases paid to active fire fighters employed by the city. Supreme Court granted the relief requested, ordering respondents to pay petitioner the difference between his accidental disability allowance and his regular salary, including increases in annual salary retroactive to January 1, 1980 and any future salary increases as they occurred. On appeal, a unanimous Appellate Division reversed, on the law, and dismissed the proceeding, stating: “Based upon the language of subdivisions 1, 2 and 3 of section 207-a of the General Municipal Law, along with the legislative history of the 1977 amendment to that section * * * we hold that the phrase ‘regular salary or wages’ as employed in subdivision 2 of section 207-a of the General Municipal Law refers to a disabled fireman’s salary as of the time of his retirement and should not reflect prospective salary increases of firemen.” (80 AD2d 855.) We disagree.

Prior to the amendment of section 207-a of the General Municipal Law (see L 1977, ch 965, eff Jan. 1, 1978), the statute provided that any paid fire fighter disabled in the course of duty was to be “paid by the municipality or fire district by which he [was] employed the full amount of his regular salary or wages until his disability *** ceased.” (General Municipal Law, former § 207-a.) As construed by the courts, the phrase “regular salary or wages” included any subsequent increases in salary that were given to active fire fighters of the same grade or title after the disability arose. (Matter of Barber v Lupton, 282 App Div 1008, affd 307 NY 770.) In addition, payments under former section 207-a continued so long as the fire fighter did not recover from his injury, even if he remained disabled for the rest of his life. (Matter of Birmingham v Mirrington, 284 App Div 721, 728.)

The former statute was the subject of a great deal of criticism. (See, e.g., Governor’s Memorandum upon approving L 1977, ch 965, NY Legis Ann, 1977, p 336; Report by Permanent Commission on Public Employee Pension and Retirement Systems [recommendation for reform of section 207-a of the General Municipal Law].) The excessive cost of carrying disabled firemen on the public payroll at full salary, sometimes for life, often prevented local municipalities from employing an adequate force of able-bodied fire fighters. Moreover, the former statute, by guaranteeing full salary after disability, provided no incentive to an injured fire fighter to accept the lesser amounts paid under the disability retirement provisions, and the municipality was without power to involuntarily retire a fireman even though he was permanently disabled. As a result, funds readily available to disabled fire fighters under the New York State Policemen’s and Firemen’s Retirement System were not being utilized. Finally, an injured fireman was free to accept outside employment while he continued, under the former statute, to receive his full salary from the municipality.

The original course of statutory reform proposed to the Legislature was that section 207-a be repealed and that the provisions of section 207-c of the General Municipal Law, which govern disability payments to policemen, be made applicable to firemen as well. (See Governor’s Memorandum upon approving L 1977, ch 965, NY Legis Ann, 1977, p 337.) Interestingly, subdivision 2 of section 207-c of the General Municipal Law provides that all payments of salary or wages are to terminate upon the injured policeman being granted an accidental disability retirement allowance or pension. However, apparently as a result of various compromises between the sponsors of the amendment and representatives of the firemen (see Memorandum of State Comptroller in support of Bill No. 8978 in Assembly), the original proposal to repeal section 207-a never received legislative approval.

Although the present statute contains, for the most part, the language found in former section 207-a (see General Municipal Law, § 207-a, subds 1, 7), five new subdivisions have been added. Subdivision 2, which is the focus of this appeal, authorizes the municipality to apply for an accidental disability allowance or pension on behalf of the injured fireman and states that, if the allowance or pension is granted, the “[playment of the full amount of regular salary or wages * * * shall be discontinued.” In that event, however, subdivision 2 requires that the fireman be paid by the municipality “the difference between the amounts received under [the] allowance or pension and the amount of his regular salary or wages” (emphasis supplied) until he either reaches the age of mandatory retirement or attains the age or performs the service specified by law for the termination of his service.

Petitioner contends that the term “regular salary or wages” contained in subdivision 2 of section 207-a of the General Municipal Law was intended by the Legislature to include salary increases granted to active fire fighters after the award of a disability retirement allowance or pension. In support of his position, petitioner relies primarily on the judicial interpretation of the phrase prior to the amendment and on various memoranda submitted to the Legislature in connection with the revision of the statute. For their part, respondents assert that injured fire fighters who are collecting an accidental disability retirement allowance or pension are not entitled to salary increases under subdivision 2 of section 207-a of the General Municipal Law, but are limited to payment from the municipality based on their salary at the time of the disability award. In support of this contention, respondents cite the unsuccessful history of two proposed amendments to the statute (see Bill No. 4764 in Assembly, dated Feb. 24, 1977; Bill No. 10709 in Assembly, dated March 25, 1980), as well as the difference in the language employed in subdivisions 1, 2 and 3 of section 207-a of the General Municipal Law. We agree with the view advanced by petitioner.

Turning first to the express language of the statute, subdivisions 1, 2 and 3 of section 207-a provide for the payment of “regular salary or wages” to certain categories of disabled firemen. Although subdivision 3, which deals with an injured fireman capable of performing “light duty”, states that such an individual is entitled to “regular salary or wages, including increases thereof and fringe benefits”, there is no indication that the Legislature, by adding this supplemental phrase to subdivision 3, intended thereby to limit the payments made under subdivision 2 of the statute. Indeed, no similar qualifying clause appears in subdivision 1 of the statute, and respondents concede that under that subdivision the phrase “regular salary or wages”, without more, includes all salary increases granted after a disability arises. Thus, juxtaposing the express language found in the various subdivisions of section 207-a offers no meaningful guidance in ascertaining what the Legislature intended by the use of the phrase “regular salary or wages” in subdivision 2 of the statute.

A review of the legislative history leading úp to the amendment of section 207-a, however, is rather enlightening. The relevant memoranda submitted to the Legislature in connection with the amendment indicate that the primary aim of the new statute was to shift a large portion of the financial burden generated by disabled fire fighters from the municipal payrolls to the appropriate retirement system or pension fund. (See, e.g., Governor’s Memorandum on approving L 1977, ch 965, NY Legis Ann, 1977, p 337; Sponsor’s Memorandum in support of Bill No. 8978 in Assembly; Memorandum of Department of State recommending approval of Bill No. 8978 in Assembly.) Aside from partially shifting the source of the payments made to disabled fire fighters, there is no indication that the Legislature also intended to reduce the amount of such payments. Indeed, the relevant memoranda are to the contrary; they indicate that the new law was to have no effect on the income received by a disabled fire fighter. (See, e.g., Sponsor’s Memorandum in support of Bill No. 8978 in Assembly; letter of the Permanent Commission on Public Employee Pension and Retirement Systems, dated Aug. 4, 1977 [recommending that Bill No. 8978 in Assembly be vetoed by the Governor]; letter of New York State Association of Counties, dated July 18, 1977.)

Contrary to respondents’ contention, the unexplained failure on the part of the Legislature to adopt the two proposed amendments to section 207-a of the General Municipal Law is not dispositive of the meaning to be given to the phrase “regular salary or wages”. True, both these proposals clearly provided that the phrase in issue included salary increases that an injured fireman would have otherwise been entitled to had he not retired (see Bill No. 4764 in Assembly, dated Feb. 24, 1977; Bill No. 10709 in Assembly, dated March 25, 1980) and, therefore, the failure to enact these proposals might evince an intent on the Legislature’s part to limit the payments made under subdivision 2 of section 207-a. On the other hand, the term “regular salary or wages” had already been interpreted by the courts to include subsequent salary increases. Thus, it is equally possible that the Legislature was of the view that it was unnecessary to add anything to the express language of the statute. In the face of such conflicting inferences, no particular significance can be attributed to the Legislature’s failure to adopt these amendments.

As one court has noted, “[s]ection 207-a of the General Municipal Law is a remedial statute enacted for the benefit of firemen and should be liberally construed in their favor.” (Pease v Colucci, 59 AD2d 233, 235; see, also, Cook v City of Binghamton, 48 NY2d 323, 332.) Viewed from this perspective, and in light of the legislative history discussed above, we conclude that the 1977 amendment to section 207-a of the General Municipal Law was intended only to affect the source, not the amount, of payments made to disabled fire fighters. In the absence of some clear indication from the Legislature signaling a departure from the meaning that has been attributed to the phrase “regular salary or wages”, we hold that that phrase, as employed in subdivision 2 of section 207-a of the General Municipal Law, includes prospective salary increases given to active fire fighters subsequent to the award of an accidental disability retirement allowance or pension.

For the reasons stated, the order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court, Orange County, reinstated.

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

Order reversed, etc.

      . Subdivision 2 of section 207-a of the General Municipal Law provides that a permanently disabled fireman granted an accidental disability retirement allowance or accidental disability pension “shall continue to receive from the municipality or fire district by which he is employed, until such time as he shall have attained the mandatory service retirement age * * * or shall have attained the age or performed the period of service specified by applicable law for the termination of his service, the difference between the amounts received under such allowance or pension and the amount of his regular salary or wages.” (Emphasis supplied.)

      . The Third Department recently arrived at the same conclusion. (See Harzinski v Village of Endicott, 83 AD2d 305.)

      . One possible explanation as to why only subdivision 3 of section 207-a of the General Municipal Law contains the phrase “including increases thereof and fringe benefits” is that the Legislature desired to avoid any suggestion that a disabled fire fighter who accepts “light duty” in a lower-salaried position would be subject to a reduction in pay. (See Sponsors Memorandum in support of Bill No. 8978 in. Assembly.) That potential difficulty does not arise, however, when dealing with fire fighters covered by subdivisions 1 and 2 of the' statute.


author: Meyer, J.

text:
    Sharon Friederwitzer, Appellant, v Elliot Friederwitzer, Respondent.
    Argued January 4, 1982;
    decided February 16, 1982

      POINTS OF COUNSEL

      Carl D. Bernstein for appellant.
    I. There were no extraordinary changes in circumstances which justified a switch in custody to the father. (Matter of Nehra v Uhlar, 43 NY2d 242; Corradino v Corradino, 48 NY2d 894; La Veglia v La Veglia, 54 AD2d 727; Matter of Austin v Austin, 65 AD2d 903; Matter of Heller v Bartman, 65 AD2d 876; McLaughlin v McLaughlin, 71 AD2d 738; Martin v Martin, 74 AD2d 419.) II. The wishes of an 11-year-old child are of little weight in determining custody. (Matter of Calder v Woolverton, 50 AD2d 587, 39 NY2d 1042; Pino v Pino, 57 AD2d 919.) III. There has been no showing that the mother was in any sense unfit or that the father was more fit.

      Stanley Lehrer for respondent.
    I. The court found sufficient grounds to justify transferring custody from the mother to the father. (Matter of Barkley v Barkley, 60 AD2d 954, 45 NY2d 936; Braiman v Braiman, 44 NY2d 584.) II. The totality of the circumstances justified the custodial change. (Matter of Nehra v Uhlar, 43 NY2d 242; Corradino v Corradino, 48 NY2d 894; Matter of Nierenberg v Nierenberg, 36 NY2d 850; Opferbeck v Opferbeck, 57 AD2d 1074; Papernik v Papernik, 55 AD2d 846; Mantell v Mantell, 45 AD2d 918; Matter of D’Alessandro v Parisi, 60 AD2d 897.) III. The wishes of Lisa Friederwitzer, 11 years and 9 months old at the time of the trial, should be accorded consideration. (Martin v Martin, 308 NY 136; Pact v Pact, 70 Misc 2d 100; Matter of Barry v Glynn, 59 Misc 2d 75.) IV. The trial court was in the best position to fully evaluate the facts. The best interests of the children will not now be served by another uprooting. (Matter of Gloria S. v Richard B., 80 AD2d 72.)
   OPINION OF THE COURT

Meyer, J.

Extraordinary circumstances are not a sine qua non of a change in parental custody of a child, whether the original award of custody is made after plenary trial or by adoption of the agreement of the parties, without contest, and without merging the agreement in the judgment. The more particularly is this so with respect to a judgment governed as is the judgment in this case by rule 699.9 of the Appellate Division, Second Department (22 NYCRR 699.9), pursuant to which the trial court expressly “retains jurisdiction *** for the purpose” to the extent permitted by law, “of making such further decree with respect to *** custody *** as it finds appropriate under the circumstances existing at the time application for that purpose is made to it” (22 NYCRR 699.9 [b], Approved Forms For Matrimonial Judgments, J13). The order of the Appellate Division affirming Special Term’s order changing custody to the father should, therefore, be affirmed, without costs.

The parties were married in 1968. An uncontested divorce was awarded plaintiff wife after inquest, by judgment dated July 24, 1979. The separation agreement entered into by them provided that as to the two children of the marriage, Lisa and Nicole, the husband and wife would have joint custody with the children residing with the wife and reasonable visitation rights to the husband. It provided further that the terms of the agreement would survive a judgment of divorce “without merging, other than child support which shall merge in said decree.” The judgment of divorce provided that the parties have joint custody of the children, the father to have visitation as provided in the separation agreement, and that the agreement should survive and not merge in the judgment. It also contained the retention of jurisdiction provision (Approved Forms, J13) required by Appellate Division rule.

In September, 1979, the mother, who had been living with the children on Long Island close to the residence of the father, moved with the children to an apartment on East 93rd Street in Manhattan. Both parties and the children have been reared as Orthodox Jews, strictly observing both the Sabbath and the dietary laws. The children, who had attended a yeshiva on Long Island, were transferred to a yeshiva in Manhattan. Less than a year after the original judgment, in April, 1980, the father moved for modification of the judgment of divorce so as to award him sole custody of his daughters. The mother cross-moved for sole custody. After a trial during which the mother, father and both children testified, the Trial Judge found the father to be “a loving and caring person *** well qualified as a fit parent.” He found that the mother, while not unfit, was less fit to have custody than the father because her own best interests and social life, appeared to be of “paramount concern to her, to the total exclusion of the best interests of her children.” He predicated that conclusion on the mother having frequently left her then 11- and 8-year-old girls alone in the apartment until late at night when she went out for the evening even though the children informed her that they were afraid to stay alone, and on the mother’s profession of raising the children in the tenets of Orthodox Judaism while at the same time flagrantly violating those tenets by permitting a male friend to stay in the apartment and share her bed to the knowledge of the children, by failing, except rarely, to take the children to Sabbath services, and by permitting the male friend to violate the Sabbath by turning on the television, all of which confused the children and was contrary to their religious beliefs and detrimental to their religious feeling. Noting the older daughter’s strong desire to live with her father and the younger child’s wish to continue living with her mother but not to be separated from her sister, the Trial Judge acknowledged that the wishes of the children was an element to be considered, but held it controlled in this instance by the overriding considerations above detailed. He therefore modified the judgment to award custody of both children to the father.

The Appellate Division by a divided court modified in a respect not material to our determination and affirmed Special Term’s order. The majority found the Trial Judge’s conclusion that custody in defendant would serve the best interests of the children to be supported by the evidence. The dissenter, interpreting our decisions in Corradino v Corradino (48 NY2d 894) and Matter of Nehra v Uhlar (43 NY2d 242) as holding that custody “pursuant to an agreement should not be transferred absent extraordinary circumstances” (81 AD2d, p 606) of which he found no evidence in the record, voted to reverse and deny the father’s motion. The mother’s appeal to us presents the question of law whether extraordinary circumstances are required as the dissent suggested. We affirm.

The only absolute in the law governing custody of children is that there are no absolutes. The Legislature has so declared in directing that custody be determined by the circumstances of the case and of the parties and the best interests of the child, but then adding “In all cases there shall be no prima facie right to the custody of the child in either parent” (Domestic Relations Law, § 240;. see, also, § 70). Because the section speaks to modification as well as to an original matrimonial judgment, “all cases” must be read as including both. That, of course, does not mean that custody may be changed without regard to the circumstances considered by the court when the earlier award was made but rather that no one factor, including the existence of the earlier decree or agreement, is determinative of whether there should, in the exercise of sound judicial discretion, be a change in custody.

Indeed, in Matter of Nehra v Uhlar (43 NY2d 242, supra), we were at pains to point out many of the factors to be considered and the order of their priority. Thus, we noted that “Paramount in child custody cases, of course, is the ultimate best interest of the child” (p 248), that stability is important but the disruption of change is not necessarily determinative [pp 248, 250), that the desires of the child are to be considered, but can be manipulated and may not be in the child’s best interests (p 249), that self-help through abduction by the noncustodial parent must be deterred but even that “must, when necessary, be submerged to the paramount concern in all custody matters: the best interest of the child” (p 250), that the relative fitness of the respective parents as well as length of time the present custody had continued are also to be considered (pp 250-251), that “Priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement” (p 251), whereas of lesser priority will be the abduction, elopement or other defiance of legal process as well as the preferences of the child (id.).

The priority which is accorded the first award of custody, whether contained in court order or voluntary agreement, results not from the policy considerations involved in res judicata (which permits change in custody decrees when warranted by the circumstances, Kunker v Kunker, 230 App Div 641, 645; cf. Matter of Bachman v Mejias, 1 NY2d 575, 581; Goldman v Goldman, 282 NY 296, 304; see Restatement, Judgments 2d [Tent Draft No. 3], § 74, Comment d; and [Tent Draft No. 5], § 61, Comment f, illustration 11), so much as from the conceptions that stability in a child’s life is in the child’s best interests and that the prior determination reflects a considered and experienced judgment concerning all of the factors involved (Martin v Martin, 74 AD2d 419, 427). But the weight to be given the prior award necessarily depends upon whether it results from the Trial Judge’s judgment after consideration of all relevant evidence introduced during a plenary trial or, as here, finds its way into the judgment through agreement of the parties proven as part of a proceeding in which custody was not contested and no evidence contradictory of the agreement’s custody provision has been presented. No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child’s best interest (People ex rel. Wasserberger v Wasserberger, 42 AD2d 93, 95, affd on opn below 34 NY2d 660). Nor is an agreement so contradictory of considered judgment as to determine custody solely upon the basis of the wishes of the young children involved a “‘weighty factor’” for consideration (Martin v Martin, 74 AD2d 419, 426, supra). Thus, Nehra’s phrase “absence of extraordinary circumstances” is to be read as “absence of countervailing circumstances on consideration of the totality of circumstances,” not that some particular, sudden or unusual event has occurred since the prior award. The standard ultimately to be applied remains the best interests of the child when all of the applicable factors are considered, not whether there exists one or more circumstances that can be denominated extraordinary.

An additional reason for so holding in the instant case exists in rule 699.9 of the Appellate Division, Second Department, to which the decree in the instant case is subject. Custody decrees remain subject to modification because the governing statute so provides (Goldman v Goldman, 282 NY 296, 304, supra; Domestic Relations Law, §240; Siegel, 1964 Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law, §240, 1981-1982 Pocket Part, p 165; Ann., 73 ALR2d 1444). Rule 699.9 expressly states that “as to support, custody and visitation, no such [separation] agreement or stipulation is binding” (22 NYCRR 699.9 [f] [4]) and requires, as earlier noted, that the judgment contain the provision {id., Approved Forms, J13) that the court retains jurisdiction for the purpose of making such further custody decree “as it finds appropriate under the circumstances existing at the time application for that purpose is made to it” (italics supplied). Such a modification is, as already noted, permitted by law when authorized by the totality of circumstances, including the existence of the prior decree. Moreover, the language of the rule makes indelibly clear that it is the circumstances existing at the time of the application for change that governs whether a change should be made, whether or not any of them can be characterized as extraordinary. This, of course, does not mean that a matrimonial court in the Second Department has the authority to change custody simply because change is requested, but that it has the discretion to do so when the totality of circumstances, including the existence of the prior award, warrants its doing so in the best interests of the child.

It thus appears that the standard applied by the courts below was not legally incorrect. Moreover, the record supports the determination of the courts below that the change of custody was warranted by the lesser concern of the mother for the emotional well-being of her children than for her own life style demonstrated after the original award was made, particularly in light of the short period of time it had been in existence when the application for modification was made and the fact that the custody provisions of the divorce judgment were based on the agreement of the parties rather than plenary consideration by the trial court.

For the foregoing reasons, the order of the Appellate Division should be affirmed, without costs.

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

Order affirmed.

       While physical custody was not to be shared under the agreement, it required consultation between the parties on all matters pertaining to the health, welfare, education and upbringing of the children.