text:
    Safeco Insurance Company of America, Respondent, v Jamaica Water Supply Company, Appellant.
    Argued October 4, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      John R. O’Connor for appellant.

      Terence M. Quinlan for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by former Justice James D. Hopkins at the Appellate Division (83 AD2d 427). Question certified answered in the affirmative.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


source: Caselaw Access Project

license: Public Domain

text:
    Edward H. Phillips, Jr., Appellant, v City of Syracuse et al., Respondents, et al., Defendants.
    Argued October 4, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      Stephen F. Guthmann for appellant.

      David M. Garber, Corporation Counsel (Thomas M. Carnrike and Robert J. Jenkins of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (84 AD2d 957).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Anthony Love, Appellant.
    Argued October 8, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      Kenneth G. Varley for appellant.

      Sol Greenberg, District Attorney (llene R. Bergman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s voluntary waiver is established by a finding of fact. That defendant was a patient in the Capital District Psychiatric Center at the time of waiver is not sufficient to meet defendant’s burden of persuasion, the People having shown the legality of the police conduct in the first instance (People v Di Stefano, 38 NY2d 640, 652). Thus, the finding was not improper.

Nor can we conclude on the present record that the assistance of counsel received by defendant was constitutionally ineffective. Reviewing the trial minutes only, one could conclude that the trial attorney failed properly to interview his expert witness before putting him on the stand, with the result that the expert’s response to questions from the court established that defendant knew his conduct was wrong and understood the nature and consequences of his act in committing the burglary for which he was being tried. Yet unlike the situation in People v Bennett (29 NY2d 462), the record shows that trial counsel in the instant case had read the medical records, had contacted a doctor who, as the August 28, 1975 laboratory report in Exhibit A shows, had had previous contact with defendant and who reviewed the hospital records prior to testifying, and phrased his inquiry to the doctor in proper, though somewhat inartful, terms. That the doctor testified as he did in answer to questions from the court could evidence ineffective assistance of counsel only if it were shown either that on the available medical evidence another doctor would have testified to the contrary (cf. People v Aiken, 45 NY2d 394, 400) or that trial counsel in fact had not sufficiently reviewed with the doctor prior to calling him as a witness the record in relation to the governing rules of law. Here, as in People v Jones (55 NY2d 771, 773), we cannot conclude that defendant’s counsel was ineffective simply by reviewing the trial record without the benefit of additional background facts that “might have been developed had an appropriate after-judgment motion been made” pursuant to CPL 440.10 (cf. People v Brown, 45 NY2d 852).

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

Order affirmed in a memorandum.


text:
    In the Matter of Friends of the Pine Bush et al., Respondents-Appellants, v Planning Board of the City of Albany et al., Appellants-Respondents, and G.M.R. Properties, Inc., et al., Intervenors-Respondents.
    Submitted October 18, 1982
    decided November 9, 1982
   Motion for leave to cross-appeal granted. Motion to vacate September 2, 1982 order dismissing cross appeal taken as of right dismissed as academic [see 57 NY2d 700]. Motion to dismiss appeal denied.


text:
    Julius Mehrberg, Respondent, v June G. Mehrberg, Appellant.
    Decided November 9, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the modification at the Appellate Division is not in a “respect, which is within the power of the court of appeals to review” (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


text:
    In the Matter of Andrew Martin, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued October 12, 1982
    decided November 11, 1982

      APPEARANCES OF COUNSEL

      Kevin H. Horren and Bernard F. Ashe for appellant. Kenneth Pawson and Robert D. Stone for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (85 AD2d 869).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Amy K. Quinn et al., Appellants-Respondents, v Stuart Lakes Club, Inc., et al., Respondents-Appellants.
    Argued October 11, 1982
    decided November 11, 1982

      APPEARANCES OF COUNSEL

      Ludwig A. Saskor for appellants-respondents.

      John H. Hartman and Paul F. Eaton for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to plaintiffs, by deleting so much thereof as declares that the purposes of the corporation have failed and that any party claiming an interest in the corporation may bring a proceeding for dissolution of the corporation and distribution of its assets.

We agree that article 9 of the corporation’s by-laws is void as an absolute restraint on the power of alienation violative of the public policy in this State (see Allen v Biltmore Tissue Corp., 2 NY2d 534). Plaintiffs are thus entitled to a declaration that Amy Quinn has inherited the stock of John J. Quinn in Stuart Lakes Club, Inc. The corporation, therefore, must transfer the stock to her and record the transfer on the books of the corporation.

Since only that part of article 9 which prohibits transfers of the stock of the corporation is null and void, the remainder, providing for the election of new members, survives, with the consequence that not only the current stockholders, plaintiff Amy Quinn and defendant James Crawford, but also any new stockholders may be able to carry out the purposes of the corporation by purchasing, leasing or acquiring land and by protecting and promoting the interest of legitimate sport with rod and gun.

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

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


text:
    Michael Bernardo, an Infant, by His Father and Natural Guardian, Clement Bernardo, et al., Appellants, v Mary A. Barrett, Respondent.
    Decided November 11, 1982

      APPEARANCES OF COUNSEL

      Lawrence Rothberg and Bernard Meyer son for appellants.

      Thomas A. Osborn for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 832).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Benjamin Levin, Appellant.
    Argued October 11, 1982
    decided November 11, 1982

      APPEARANCES OF COUNSEL

      Paula Schwartz Frome and James O. Druker for appellant.

      Robert Abrams, Attorney-General (Elliott S. Greenspan, Peter H. Schiff and William F. Dowling of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The indictment charges the defendant with larceny in the language of the statute and thus cannot be said to be insufficient on its face (People v Cohen, 52 NY2d 584). Any issue concerning the proper interpretation or application of the statute was forfeited by the guilty plea.

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

Order affirmed in a memorandum.


text:
    In the Matter of Barry J. Lichtenstein, Respondent, v Board of Trustees of the Police Pension Fund of the Police Department of the City of New York, Article II, Appellant.
    Argued October 14, 1982
    decided November 11, 1982

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Paul T. Rephen and Leonard Koerner of counsel), for appellant.

      Louis L. Stutman for respondent.

      Murray A. Gordon and John Mills for Vincent J. Bollon and others, amici curiae.

      Richard A. Dienst and Peter A. Schwartz for Captains Endowment Association and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of respondent Board of Trustees of the Police Pension Fund of the Police Department of the City of New York should be reinstated.

In order to obtain accidental disability retirement, petitioner must establish that he suffered physical or mental incapacitation “as a natural and proximate result of an accidental injury received in * * * city-service” (Administrative Code of City of New York, § B18-43.0). The legislative history of the statute indicates that not every line-of-duty injury will support an award of accidental disability retirement. The express requirement that the employee establish that the line-of-duty injury be incurred as the result of an accident was added in 1940 (see Uniformed Firefighters Assn., Local 94, IAFF, AFL-CIO v Beekman, 52 NY2d 463). Prior to that time, line-of-duty retirement benefits were payable solely upon a determination that the disability was employment related (L 1920, ch 427, § 1, Administrative Code, §§ B18-4.0, B19-4.0).

Although the term “accident” is not specifically defined by the statute, we adopt the commonsense definition of a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” (Johnson Corp. v Indemnity Ins. Co. of North Amer., 6 AD2d 97, 100, affd 7 NY2d 222). (According to this definition, an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury within the meaning of section B18-43.0) (see, e.g., Retirement and Social Security Law, § 363; Matter of Covel v New York State Employees’ Retirement System, 84 AD2d 902, mot for lv to app den 55 NY2d 606; Matter of Panek v Regan, 81 AD2d 738). So, too, the occurrence in question on this appeal involving a back injury sustained while leaning over the hood of an automobile in order to place a summons on the vehicle, cannot be deemed an accidental injury.

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

Order reversed, etc.


text:
    In the Matter of Kingdon Gould, Jr., et al., Respondents, v Robert A. Kerwick, as Assessor of the Town of Hardenburgh, et al., Appellants.
    Decided November 11, 1982

      APPEARANCES OF COUNSEL

      Stephen L. Oppenheim for appellants.

      G. Gordon Coughlin, Jr., for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and the judgment and order of Supreme Court, Ulster County, reinstated for reasons stated in the dissenting memorandum of Justice Howard A. Levine at the Appellate Division (87 AD2d 917, 919-920). Question certified answered in the affirmative.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Harold Cooper, Appellant, v Daniel Schube et al., Individually and as Trustees Under the Last Will and Testament of Morris Schube, et al., Respondents.
    Decided November 11, 1982

      APPEARANCES OF COUNSEL

      David L. Berkey for appellant.

      Lesley E. Goldberg for respondents.
   OPINION of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the opinion by Justice David Ross at the Appellate Division (86 AD2d 62).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Whitacre Construction Specialties, Inc., Appellant, v Aetna Casualty & Surety Company, Respondent.
    Argued October 14, 1982
    decided November 11, 1982

      APPEARANCES OF COUNSEL

      Barry R. Kogut for appellant.

      Jeffrey R. Jones for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (86 AD2d 972).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer. Taking no part: Judge Gabrielli.


text:
    Hanover Insurance Company, Appellant, v Charles Eggelton, Doing Business as Wallkill Body Shop, Appellant, et al., Defendant, and Nationwide Insurance Company, Respondent.
    Decided November 11, 1982

      APPEARANCES OF COUNSEL

      Robert D. Cook for Hanover Insurance Company, appellant.

      Benjamin J. Fried for Charles Eggelton, appellant.

      Robert P. Augello for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the opinion by Justice Ann T. Mikoll at the Appellate Division (88 AD2d 188).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v William Love, Appellant.
    Argued October 11, 1982
    decided November 11, 1982

      APPEARANCES OF COUNSEL

      Darren O’Connor and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney {Stanley K. Shapiro and Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

To the extent that defendant seeks to argue that the showup was not necessary because Officer Phillips had himself identified defendant, the point has not been preserved for our review. Moreover, though the better practice when feasible is not to conduct a showup before a group of witnesses (People v Adams, 53 NY2d 241, 249), procedures that are less than ideal may, as Adams held, be tolerable in the interest of prompt identification. This is particularly so in a case such as the present, in view of the proximity of the apprehension of defendant in time and space (five minutes and one block, cf. People v Brnja, 50 NY2d 366) to the scene of the crime. Nor was there any allegation that the conduct of the police was in any way impermissibly suggestive.

Defendant’s second claim of error, bolstering contrary to People v Trowbridge (305 NY 471), was not preserved, the objection stated having been no more than the one word “objection” (People v West, 56 NY2d 662).

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

Order affirmed in memorandum.


text:
    In the Matter of the Arbitration between Board of Trustees of Maplewood-Colonie Common School District, Respondent, and Maplewood Teachers’ Association, Appellant.
    Argued October 12, 1982
    decided November 11, 1982

      APPEARANCES OF COUNSEL

      Gerard John De Wolf, Bernard F. Ashe and Rocco A. Solimando for appellant.

      William J. Hoblock for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the stay of arbitration should be denied.

The public policy issue which the school district raises on this stay application is not premature for the arbitration demand at issue here would lead inexorably to the violation of public policy, if the school district is correct (cf. Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 418-419).

The district’s contention cannot be upheld, however, because, in substantive as distinct from procedural matters, we decide cases on the basis of the law as it exists at the time of decision (Matter of Hodes v Axelrod, 56 NY2d 930, 932; Strauss v University of State of N. Y., 2 NY2d 464, 467, app dsmd 355 US 394). There can be no question that the issue here involved is substantive (Matter of Windsor Cent. School Dist. [Windsor Teachers Assn.], 52 NY2d 734; Matter of Delaware Val. Cent. School Dist. [Delaware Val. Faculty Assn.], 54 NY2d 613), and the Legislature, which is also a source of public policy, has decreed by chapter 868 of the Laws of 1982 (amdg Civil Service Law, § 209-a, subd 1) that “It shall be an improper practice for a public employer or its agents deliberately * * * (e) to refuse to continue all the terms of an expired agreement until a new agreement is negotiated.” Whether the new contract moots the issue is a question for the arbitrator.

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

Order reversed, etc.


text:
    In the Matter of John H. Koch, Appellant, v Webster Central School District Board of Education, Respondent.
    Decided November 11, 1982

      APPEARANCES OF COUNSEL

      Warren B. Rosenbaum for appellant.

      Daniel R. Mooney for respondent.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs.

Review pursuant to CPLR 7803 (subd 3), whether by Special Term or the Appellate Division, of the discretion exercised by a board of education in dismissing an employee for misconduct is limited to whether the board’s discretion was abused as a matter of law (Matter of Pell v Board of Educ., 34 NY2d 222, 234). The discretion exercised in such matters of internal discipline is of a “broader range because of ‘the complexity and sensitiveness of personnel administration in continuing intraorganizational relationships’” (Matter of Di Vito v State of New York, Dept. of Labor, 48 NY2d 761, 763, quoting Matter of Ahsaf v Nyquist, 37 NY2d 182, 185).

In light of the findings of the hearing officer, confirmed by the appointing officer and as to which petitioner has not sought review, that petitioner persisted in his disruptive conduct despite blunt and adequate warnings and of our review of the record, we cannot say that the board abused its discretion by dismissing petitioner (cf. Matter of Gailband v Christian, 56 NY2d 890).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed.


text:
    Anna Sterrer, Appellant, v Olivia G. Calestine et al., Respondents.
    Decided November 11, 1982

      APPEARANCES OF COUNSEL

      Solomon Cohen for appellant.

      Peter Voletsky and Donald G. Simmonds for respondents.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs.

Plaintiff’s argument that the earlier action dealt with an implied easement over the surface of the lots rather than an express reservation with respect to sewers and repairs may have been a valid basis for appeal of the prior judgment which held defendants’ title absolute and unencumbered and declared plaintiff barred from all claim to an easement in the land. Not having appealed that judgment, however, plaintiff is barred by it from maintaining the present action for the reasons stated in the Appellate Division memorandum.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Linda Dancey, Also Known as Linda Hickman, Appellant.
    Argued October 8, 1982
    decided November 11, 1982

      APPEARANCES OF COUNSEL

      William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney {Jane S. Meyers, Barbara D. Underwood and Lucille A. Di Bello of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends that the seizure of an incriminatory handwritten note from her apartment violated her rights under the search and seizure provisions of the Federal and State Constitutions because, at the time of the seizure, the exigency which justified the initial presence of the police in the apartment no longer existed and her consent to their initial entry was no longer viable. Consequently, defendant argues that the evidence obtained as a result of the entry should have been suppressed.

Upon review of the record, we conclude that there should be an affirmance of the order of the Appellate Division because of the failure of defendant at the combined suppression hearing and nonjury trial to preserve the error on which reliance is now placed for a reversal. During the suppression hearing, defendant advanced but a single, categorial contention — that suppression of the incriminatory note was warranted because Detective Martin was not worthy of belief when he testified that he had not intended to search for evidence upon returning to the apartment, but had inadvertently seen an exposed note on top of a dresser and had recovered it. There was then no claim made that Detective Martin’s re-entry was constitutionally impermissible because it was not justified by the initial consent of defendant.

Having failed to raise at the suppression hearing a constitutional challenge to Detective Martin’s presence in defendant’s apartment at the time of the discovery of the incriminatory note, “defendant is now foreclosed by our rule of ‘preservation’ from advancing any such ground for reversal on appeal to this court.” (People v Martin, 50 NY2d 1029, 1031.)

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Terrance B. Adams, Appellant.
    Argued October 12, 1982
    decided November 11, 1982

      APPEARANCES OF COUNSEL

      Joseph A. Shifflett, Rose H. Sconiers and Joseph B. Mistrett for appellant.

      Richard J. Arcara, District Attorney {John J. De Franks and Deborah N. Sorbini of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that the questioning by the police was conducted while the defendant was being held on less than probable cause (Dunaway v New York, 442 US 200) has not been preserved for appellate review. The record does not support his contention that this was properly raised to the suppression court. Nor does it indicate that he ever sought to subsequently raise it at trial. (CPL 60.45.)

Prior to a second trial on the felony murder indictment, which was necessitated by the first jury’s inability to reach a verdict on this charge, the defendant chose to plead guilty to manslaughter in the first degree. (Penal Law, § 125.20.) The court sentenced him to consecutive terms on the basis of his conviction for burglary and his plea to manslaughter. Defendant argues that consecutive sentences for these two crimes are illegal because subdivision 2 of section 70.25 of the Penal Law requires concurrent sentences where two or more offenses are “committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other”.

The core of defendant’s argument is that the commission of the burglary in this case is a material element of the crime of felony murder. While this might present a valid concern for this court were we considering the validity of the sentences after a jury verdict convicting defendant of felony murder, that is not the situation in this case. Rather, we are asked to decide that concurrent sentences are mandated when the defendant is convicted of burglary and pleads guilty to manslaughter in satisfaction of the felony murder indictment. Although the burglary would be a material element of the felony murder plea or conviction, it is not a material element of the manslaughter plea.

We cannot accept defendant’s contention that we must evaluate the validity of the sentences as if he had pleaded guilty to felony murder rather than manslaughter. Defendant bargained for the benefits he thought would flow from pleading guilty to manslaughter, a crime which mandates a lesser sentence than felony murder. He cannot now seek to benefit from the statutory protection he arguably would have received pursuant to subdivision 2 of section 70.25 of the Penal Law if he had risked conviction or entered a plea on the felony murder charge.

Furthermore, this bargained plea “makes unnecessary a factual basis for the particular crime.” (People v Clairborne, 29 NY2d 950, 951.) Such a plea is not rendered invalid because it was entered to a crime which might be theoretically inconsistent with the crime charged. “While there may be question whether a plea to attempted manslaughter is technically and logically consistent, such a plea should be sustained on the ground that it was sought by defendant and freely taken as part of a bargain which was struck for the defendant’s benefit.” (People v Foster, 19 NY2d 150, 154.)

We have considered defendant’s other contentions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    Tribune Printing Co., Inc., Appellant, v 263 Ninth Avenue Realty, Inc., et al., Respondents.
    Decided November 11, 1982

      APPEARANCES OF COUNSEL

      William A. Zutt for appellant.

      Harry Shapiro for respondents.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division, except that, contrary to the statement in said memorandum, a representation which is promissory in nature may constitute a misrepresentation of an existing fact. (Adams v Gillig, 199 NY 314.) The correct rule provides that a false statement, promissory in nature, “may be deemed the statement of a material existing fact, because it falsely represents the [declarant’s] state of mind and the state of his mind is a fact.” (Deyo v Hudson, 225 NY 602, 612; see, also, Rudman v Cowles Communications, 30 NY2d 1, 9; Adams v Clark, 239 NY 403.) An affirmance on this point is required, however, because plaintiff has failed to proffer evidence sufficient to raise a triable issue of fact with respect to its claimed reliance on defendants’ alleged fraudulent representation.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Leo Kerness, Appellant, et al., Petitioners, v Peter A. A. Berle, as Commissioner of the Department of Environmental Conservation, State of New York, et al., Respondents.
    Submitted October 11, 1982
    decided November 11, 1982

      APPEARANCES OF COUNSEL

      Howard P. Fritz for appellant.

      Robert Abrams, Attorney-General {Peter H. Schiff, Marcia J. Cleveland and Mary L. Lyndon of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (85 AD2d 695).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Raymond E. Aldrich, Jr.
    Decided November 11, 1982
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Raymond E. Aldrich, Jr., not be suspended from his office of County Judge, Dutchess County, New York.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Richard M. Atkinson et al., Respondents, v County of Oneida, Appellant.
    Submitted August 30, 1982
    decided November 11, 1982
   Motion to dismiss appeal taken as of right granted and appeal dismissed, without costs, upon the ground that the order sought to be reviewed does not necessarily affect the final judgment (CPLR 5601, subd [d]).


text:
    In the Matter of Citizens for an Orderly Energy Policy (COEP) et al., Respondents, v County of Suffolk et al., Appellants.
    Submitted November 1, 1982
    decided November 11, 1982
   Motion by respondents to dismiss appeal taken as of right granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that no substantial constitutional question is directly involved. Motion by respondents to vacate statutory stay denied as unnecessary in view of the stipulation entered into by the parties. Motion by respondents to deem appellants’ papers as an application for leave to appeal, etc., denied. Motion by appellants for a preference dismissed as academic.


text:
    In the Matter of Collum Signs, Inc., Appellant, v Martin Lang et al., Constituting the Town Board of the Town of Southampton, Respondents.
    Submitted October 25, 1982
    decided November 11, 1982
   Motion to dismiss appeal taken as of right denied. Motion for leave to appeal dismissed as academic. Appellant is directed to notify the Attorney-General of this appeal as required by section 71 of the Executive Law and rule 500.2 of the Rules of the Court of Appeals (22 NYCRR 500.2) and to file an amended jurisdictional statement containing the required certification.


text:
    William E. Dabbs, Respondent, v State of New York, Appellant.
    (Claim No. 62230.)
    Submitted October 11, 1982
    decided November 11, 1982
   Motion to dismiss appeal denied.


text:
    Jerome Karan, Respondent, v Karan Drugs, Inc., Appellant.
    Submitted October 11, 1982
    decided November 11, 1982
   Motion by landlord to dismiss appeal taken as of right granted and appeal dismissed, with costs and $20 costs of motion, and cross motion by tenant for leave to appeal dismissed, upon the ground that neither the appeal nor the motion for leave to appeal lies (NY Const, art VI, § 3; CPLR 5601, 5602). Motion by landlord for injunctive relief dismissed upon the ground that the Court of Appeals does not have jurisdiction to grant the relief requested.


text:
    David Maresca et al., Appellants, v Harold E. Berson, Respondent.
    Submitted October 25, 1982
    decided November 11, 1982
   Motion to vacate this court’s order of dismissal dated September 22, 1982 denied. [See 57 NY2d 777.]


text:
    In the Matter of the Estate of Joseph A. Ragone, Deceased. Antoinette Viscardi et al., Respondents-Appellants. Josephine Ragone, Appellant-Respondent.
    Decided November 11, 1982
   Cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the petitioners are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Suffolk Outdoor Advertising Co., Inc., Appellant, v Town of Southampton et al., Respondents.
    Submitted October 25, 1982
    decided November 11, 1982
   Motion to dismiss appeal taken as of right denied. Motion for leave to appeal dismissed as academic. Appellant is directed to notify the Attorney-General of this appeal as required by section 71 of the Executive Law and rule 500.2 of the Rules of the Court of Appeals (22 NYCRR 500.2) and to file an amended jurisdictional statement containing the required certification.


author: Jasen, J. Fuchsberg,

text:
    In the Matter of Walter Tolub et al., Appellants, v Herbert B. Evans, as Chief Administrative Judge of the State of New York, et al., Respondents.
    Argued October 7, 1982;
    decided November 18, 1982

      POINTS OF COUNSEL

      Joseph L. Forstadt, Charles G. Moerdler, Burton N. Lipshie, Daniel Turbow and Richard F. Cauley for appellants.
    Law secretaries to Supreme Court Justices in the Unified Court System must be treated equally; prior city-paid law secretaries may not lawfully be paid a lesser salary than prior State-paid law secretaries of equal tenure. (Royster Guano Co. v Virginia, 253 US 412; Matter of Abrams v Bronstein, 33 NY2d 488; Matter of Mager v Bartlett, 69 AD2d 517, 48 NY2d 607; Matter of Goldberg v Beame, 18 NY2d 513; Weissman v Evans, 82 AD2d 441; Cass v State of New York, 109 Misc 2d 107; Matter ofMarthen v Evans, 83 AD2d 415; Matter of Hogan v Rosenberg, 24 NY2d 207, revd on other grounds sub nom. Baldwin v New York, 399 US 66; Matter of Pratt v Tofany, 37 AD2d 854; Walsh v Commonwealth of Mass., 618 F2d 156.)

      John Eiseman, Paul A. Feigenbaum and Michael Colodner for Herbert B. Evans and others, respondents.
    I. Section 39 (subd 8, par [b]) of the Judiciary Law does not deprive appellants of their constitutional right to equal protection of the law. (Weissman v Evans, 82 AD2d 441, 56 NY2d 458; Matter of Abrams v Bronstein, 33 NY2d 488; 8200 Realty Corp. v Lindsay, 27 NY2d 124, 400 US 962; Tigner v Texas, 310 US 141; Matter of Town of Haverstraw v Newman, 75 AD2d 874; Local 456 Int. Brotherhood of Teamsters v Town of Cortlandt, 68 Misc 2d 645; Confederation of Police v City of Chicago, 481 F Supp 566; McCorkle v

      United States, 559 F2d 1258, 434 US 1011; Bruce v Scearce, 390 F Supp 297, 521 F2d 796; Ross v Moffitt, 417 US 600.) II. Appellants have no statutory right to preallocation salary increases reflecting their prior years of local service. (Matter of Jones v McCoy, 37 NY2d 932, 39 NY2d 743; Matter of Alweis v Wagner, 14 NY2d 923; Matter of Dreher v Wagner, 14 NY2d 926; Barkovich v Beame, 25 AD2d 518; Alesi v Procaccino, 47 AD2d 887; Matter of Kraus v Beame, 36 AD2d 989; Matter of Wingate v McGoldrick, 279 NY 246; Matter of Gosch v Horvath, 59 AD2d 822; Matter of Bartlett v Morgan, 42 AD2d 435; County of Broome v Bates, 197 Misc 88, 302 NY 587.)
   OPINION OF THE COURT

Jasen, J.

The issue presented by this appeal is whether the various provisions of the Judiciary Law which provide the method of computing salaries for law assistants serving in the Unified Court System violate the petitioners’ right to equal protection of the law.

Petitioners are law assistants to Justices and Judges of the Supreme Court and the Surrogate’s Court in the City of New York. Prior to April 1, 1977, they were paid by the city pursuant to the city’s managerial and executive pay plan. As of April 1,1977, the responsibility for petitioners’ salaries was assumed by the State pursuant to the Unified Court Budget Act of 1976. (Judiciary Law, § 39, L 1976, ch 966, § 2, as amd by L 1977, ch 32, § 9.)

Section 39 (subd 8, par [a]) of the Judiciary Law authorized the Administrative Board of the Judicial Conference to “adopt a classification structure for all non-judicial officers and employees who become employees of the state of New York pursuant to this section”. The statute further specified that the classifications should be in accordance with the “duties required to be performed” and that a salary grade should be designated for each person becoming a State employee because of the unification of the courts.

Section 39 (subd 8, par [b]) of the Judiciary Law further provides that when a nonjudicial employee is allocated to a salary grade in accordance with paragraph (a) of subdivision 8, he shall be placed “into that salary grade at the salary received by such officer or employee immediately prior to said allocation or at the minimum of that grade, whichever is higher.” The salary grade, in turn, determines the incremental step each employee covered by this statute is assigned. For the purposes of determining future increments, the number of years service was computed on the basis of the increment step determined when the employee’s prior salary was converted to the State payroll. After the initial conversion, all employees would then receive the same increment credit for each subsequent year of service.

In November of 1977, section 28 of article VI of the New York State Constitution was adopted. That provision created an Administrative Board for the Unified Court System and authorized the Chief Judge of the Court of Appeals, who was appointed Chief Judicial Officer of the Unified Court System, to appoint a Chief Administrator. Standards and administrative policies for the courts are now promulgated by these administrators with the approval of the Court of Appeals. (NY Const, art VI, § 28, subd c.)

Pursuant to that change in administration, the Chief Administrative Judge was charged with formulating a new classification plan for employees. This plan was adopted in May, 1979. The plan was designed to allocate to each court title of the Unified Court System a salary grade. All law clerks in trial level courts, whether previously paid by the State or local government, were assigned a grade on the basis of the number of years they had been admitted to the Bar.

Salary assignments within each grade were computed pursuant to the dictates of subdivision 4 of section 37 and section 39 (subd 8, par [b]) of the Judiciary Law. Those clerks who had previously been State employees were assigned a salary grade according to the number of years they had been admitted to the Bar and an increment step within that grade based on the incremental step they had previously attained in State service. (Judiciary Law, § 37, subd 4, par [a].) Law clerks who previously were paid by local governments were similarly assigned a salary grade on the basis of the number of years they had been admitted to the Bar. Their incremental step, however, was determined pursuant to the mandates of section 39 (subd 8, par [b]) of the Judiciary Law. This statute requires that they be assigned to the minimum salary within the proper grade unless that salary was below the salary they had been earning. In that case, they Were assigned to the incremental level which provided them with an equivalent salary. In no case did anyone incur any loss of salary. Indeed, all the petitioners were earning salaries greater than the minimum for their classification and, thus, were placed on incremental steps within their classifications so that they incurred no loss.

The effect, however, of these different means of converting the salaries was to create some disparity. An employee who was previously paid by the State at grade 31 level with five years of increments remained at that salary. An employee previously paid by the City of New York and admitted to the Bar five or more years would be assigned to grade 31, but the incremental level would be determined not by the number of years of service but by the employee’s previous city salary. Thus, that employee may have eight years of service but be placed on the third incremental level if that was sufficient to insure that his present State salary would be equivalent to or greater than that paid by the city. As a result of this disparity, petitioners receive less salary than some prior State-paid employees with the same number of years of service. Additionally, although they receive the same percentage salary increases, the actual increase they receive is smaller than that received by prior State employees because the base on which the percentage is computed is smaller.

Petitioners commenced these actions to redress this inequality. The first action is a CPLR article 78 proceeding which alleges that respondents had the authority to grant increases in salary and increments during the two-year period that the reclassification plan was being developed. Not to have done so, petitioners argue, was an arbitrary and capricious decision designed only to keep their salaries below prior State-paid employees. The second action seeks a declaratory judgment that the failure to equalize the salaries of prior city-paid employees and prior State-paid employees is a violation of petitioners’ right to equal protection of the law. The two actions were consolidated by the court.

Special Term found that although disparities existed, no one group of employees was favored. Rather, whether the prior State-paid or city-paid employees were on a higher incremental level depended on whether they were hired before or after the consolidation of the court system. In considering the article 78 proceeding, Special Term concluded that the respondents had properly followed the dictates of section 39 of the Judiciary Law and their decisions could not be termed arbitrary and capricious. Concerning the declaratory judgment action, Special Term held that no violation of equal protection existed. Equal protection, the opinion states, “does not require exact equality for salaries.”

The Appellate Division unanimously affirmed, without opinion, and granted leave to appeal to this court. We now affirm.

Petitioners’ claim that respondents acted in an arbitrary and capricious manner by not, in an exercise of their discretion, granting them additional incremental salary increases is totally without merit. We agree with the courts below that respondents acted in complete accord with the dictates of section 39 of the Judiciary Law. That statute did not allow respondents any range of discretion on how incremental levels within a salary grade would be assigned. Rather, the Legislature specified that the incremental level was to be determined on the basis of the previously non-State-paid employee’s prior salary. Since respondents acted pursuant to the statutory dictates, it cannot be said that they acted in an arbitrary and capricious manner.

The primary concern raised by these actions is whether the differential which results from an application of the statutory formula constitutes a violation of petitioners’ rights to equal protection of the law. We find no reason to disturb Special Term’s determination that: “This statutorily-mandated difference in salary-grade allocation does not constitute a denial of equal protection. And the fiscal constraints of the State provide a natural basis for the classification.”

In matters concerning the allocation of the public fisc, the courts do not review the Legislature’s wisdom or the propriety of their decisions. (Board of Educ. v Nyquist, 57 NY2d 27, 38-39.) Rather, the scope of review is to determine whether a rational basis exists for the classification enacted by the Legislature. Particularly in matters concerning the State’s budget, equal protection does not require that all classifications be made with mathematical precision. (Dandridge v Williams, 397 US 471, reh den 398 US 914; Lindsley v Natural Carbonic Gas Co., 220 US 61; Board of Educ. v Nyquist, supra; Walsh v Commonwealth of Mass., 618 F2d 156; Bruce v Scearce, 390 F Supp 297, affd 521 F2d 796; Eielson v Parker, 179 Conn 552; Employees Retirement System of Ala. v Oden, 369 So 2d 4 [Ala].)

In this case, the Legislature has more than a sufficient rational basis for designating different formulas to convert the salaries of prior State-paid employees and prior city-paid employees into a unified salary scale. The prior State-paid employees had been under a similar system making a direct transition regarding increments feasible. City-paid employees, on the other hand, were being paid under a completely different system. Thus, the Legislature chose to incorporate them into the State salary schedule, using their prior salary as a guide to the incremental level they should be placed at. This system assured that the cost of unification would be reasonably controlled and that no one would suffer any loss in salary. Thus, it cannot be said that the statutorily mandated system was irrational.

Similarly, a statutory scheme will not be struck as violative of equal protection merely because it creates differences in geographic areas. (McGowan v Maryland, 366 US 420, 427; Salsburg v Maryland, 346 US 545; Walsh v Commonwealth of Mass., supra, at p 158; Matter of Colt Inds. v Finance Administrator of City of N. Y., 54 NY2d 533, 544.) As long as the State had a rational basis for making such a distinction, it will pass constitutional muster under an equal protection challenge.

In this case, there is an adequate factual basis for the Legislature to have prescribed different methods of converting court employees onto the unified court budget. During the period that the State was assuming the costs of these courts and merging the various previously used payroll systems, the Legislature deemed salary to be the controlling element in determining incremental steps for employees who had no prior State service. The Legislature determined that this would assure that all employees would receive credit for their prior service while not requiring individual evaluations which otherwise would have been necessary to ascertain how much of each employee’s prior service would have been in work comparable to that required in the salary grade petitioners were now serving in.

It should also be noted that the remaining subdivisions of section 39 insure that prior city employees will retain all their former fringe benefits. Those benefits are superior to ones enjoyed by prior State-paid employees. From this, it can be concluded that the Legislature considered the total cost of the unification of the court system in enacting the various transitional provisions. Even though the effect of these various provisions was to create geographic distinctions because an employee’s prior status depended on the location of his position, there was both an historical and rational reason for making the transition in salaries in the manner prescribed by the Legislature even though in doing so distinctions would be made on the basis of locality.

It is the existence of this rational basis which distinguishes this case from Weissman v Evans (56 NY2d 458). In that case, we held that the wage disparity which continued to exist between Judges in various counties subsequent to their incorporation into the Unified Court System was not supported by a rational basis and, thus, violated the Judges’ equal protection rights. The legislation controlling in that case indicated no legislative attempt to create an orderly transition of various systems, but, rather, only a continuation of an historical disparity. In fact, the evidence submitted indicated that defendant Evans, as Chief Administrative Judge, had repeatedly recommended elimination of the disparity because there was no reason for continuing it. Having been presented with nothing more than tradition as the reason for continuing the wage disparity, we concluded that the statute was unconstitutional. Where significant reasons of fiscal concern and proper administration of the courts exist, we will not strike legislation merely because it creates some geographic distinctions.

We conclude that the disparity in wages created by sections 37 and 39 of the Judiciary Law have a rational basis in the Legislature’s concern for an orderly and speedy transition to a State-wide Unified Court System which was created, at least in part, to alleviate the financial burden imposed by requiring fiscally strained cities and counties to fund the court system. In assuming this additional financial responsibility for local court costs, it was reasonable for the Legislature to attempt to control the cost for the Unified Court System and make allocations in the unified court budget in a fairly impartial and expedient manner during this transitional period.

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

Fuchsberg,

J. (dissenting). Though no two cases are

exactly alike, one would have expected that this one would be treated as a sequel to Weissman v Evans (56 NY2d 458), in which, only some months ago, we found that the continuance of a salary disparity between Judges of the same rank in different counties of this State left us “no choice but to declare it offensive” to the constitutionally protected right to equal protection of the law (id., at p 466). I see no essential difference between that case and this one.

True it is that, in Weissman, some of the Judges served courts in one county and the others in an adjoining one, while here some of the secretaries serve State Judges in New York City while others serve State Judges of equal rank in non-New York City areas.

But, though it is undisputed that the services rendered by law secretaries in New York City are no less demanding than those performed by their counterparts outside of New York City, under our Unified Court System (NY Const, art VI, § 1, subd a), and though both now are State employees, a secretary to a State Supreme Court Justice in New York City receives considerably less in salary than does a secretary of equal training, experience and tenure attached to a Justice of the same court in another part of the State. Moreover, under a salary scheme which provides a lockstep progression through varied increment levels, the salary discrepancy will continue until a so-called “extra longevity step” is reached some 10 or 15 years later, which for many of the secretaries means the balance of their professional lifetimes. (See Judiciary Law, § 39, subd 8, par [b].) It is to challenge this condition that these proceedings were brought by the Association of Secretaries to Justices of the Supreme and Surrogate’s Courts of the City of New York and its members.

The problem has its genesis in the Unified Court Budget Act of 1976 (L 1976, ch 966), legislation designed, among other things, to eliminate precisely the kind of disparities at issue here. Prior to unification, the petitioners, though employed by State-paid Justices, were carried on the payroll of local governments, while those performing identical duties in the remainder of the State, were paid by that branch of government. The act, in harmony with the plan of the newly formed court unification system (see Weiss - man v Evans, supra, at pp 462-463) and the State’s longstanding policy “to provide equal pay for equal work” (Civil Service Law, § 115), was expected to eliminate such distinctions by merging all these employees into a single personnel structure. Instead, however, as applied, the statute froze most New York City law secretaries into their inferior salary status and, to boot, perpetuated these preexisting disparities by using the payrolls of the local governments to which they once were charged as a base for fixing their future earnings. This arrangement, as applied to petitioners, creates distinctions, which, lacking a rational basis, deny them equal protection (NY Const, art I, § 11; US Const, 14th Amdt, § 1).

Respondents have sought to justify this discrimination essentially on four grounds, one historical, the second geographical and the last two fiscal.

The historical one hardly need detain us. We made clear in Weissman that, so far as the State court system is concerned, “however intrenched the local influence at one time may have been”, it lost its viability when court unification finally arrived (Weissman v Evans, supra, at p 464).

As to the geographical excuse respondents offer, we observed that “while equal protection does not necessarily require territorial uniformity * * * ‘[a] territorial distinction which has no rational basis will not support a state statute’ ” (Weissman v Evans, supra, at pp 464-465, quoting from Manes v Goldin, 400 F Supp 23, 29 [three-Judge court], affd 423 US 1068 [citations omitted]). Ironically, since the respondents have not disputed the fact that, if anything, the greater complexity and volume of litigation pending in the courts of the City of New York render petitioners’ tasks more onerous, discrimination in favor of, rather than against them, would appear to be the only kind that could be in order.

Moreover, analysis of the cases cited by the majority emphasizes the point. For the distinction upheld in each was one peculiarly and unmistakably related to the area singled out (McGowan v Maryland, 366 US 420 [upholding statutory exemption from Sunday closing laws for retailers selling merchandise in resort area]; Salsburg v Maryland, 346 US 545 [pre-Mapp v Ohio (367 US 643) case, permitting State to use illegally obtained evidence in one highly urbanized part of Maryland where there was an unusually high incidence of gambling]; Walsh v Commonwealth of Mass., 618 F2d 156 [upholding the payment of higher salaries to court officers in Boston solely because of the especially onerous duties of court officers in that city]; Matter of Colt Inds. v Finance Administrator of City of N. Y., 54 NY2d 533; 544-545 [upholding legislation restricting admissibility of State equalization rates in New York City and Nassau County solely because of the “high density of population and diversity of property” in those areas]).

Of the majority’s two fiscal thrusts, one is that, by keeping petitioners’ wages in tow, “reasonable control” of “the cost of unification” might be achieved. This, I respectfully venture, is most outlandish. The issue here is not whether the Legislature had the right to save money when it embarked on the court unification plan. Rather, it is whether the State could enact a statute which imposes a disproportionate share of the costs of its scheme on one class of persons. Certainly, respondents would not contend that the Legislature could constitutionally justify a decision to give red-haired law secretaries lower salaries than all others simply by claiming that it did not have enough money to pay all law secretaries equal salaries. For identical reasons, the State cannot use that justification to support its discriminatory treatment of petitioners, who were classified on a similarly arbitrary basis, i.e., the identity of the government unit that paid their salaries prior to April 1, 1977. In short, “fiscal constraints” alone cannot justify disparate treatment of equals.

Allocatable to the fiscal category too, I suppose, is the majority’s supposition that the Legislature in fact had equalized law secretarial wages by charging the New York City contingent with its fringe benefits, such as they were. To this there are several short answers. To take three: 1. Overall, as respondents themselves agreed and as Special Term concluded, substantial and material disparities in salaries unfavorable to prior city-paid secretaries do exist. 2. Special Term expressly found that “fringe benefits do not constitute ‘salary’ within the purview of Judiciary Law section 39 (6) (c) and cannot be added into the equation for the purpose of determining comparability of salary”. 3. There is just no proof of any such legislative calculation or intention.

For all these reasons, I vote to reverse the order of the Appellate Division and to grant judgment to the petitioners declaring section 39 (subd 8, par [b]) of the Judiciary Law unconstitutional.

Judges Jones, Wachtler and Meyer concur with Judge Jasen; Judge Fuchsberg dissents and votes to reverse in a separate opinion in which Judge Gabrielli concurs; Chief Judge Cooke taking no part.

Order affirmed, with costs.


author: Jasen, J. Wachtler, J.

text:
    The People of the State of New York, Appellant, v Donald Evans, Respondent.
    Argued November 9, 1982;
    decided December 14, 1982

      POINTS OF COUNSEL

      Denis Dillon, District Attorney (Bruce E. Whitney, Anthony J. Girese and Martin I. Saperstein of counsel), for appellant.
    Defendant’s motion to suppress and preclude was properly denied. (People v Cefaro, 23 NY2d 283; Harrison v United States, 392 US 219; Bram v United States, 168 US 532; People v Spitaleri, 9 NY2d 168; People v Corbo, 17 AD2d 351; United States v Anderson, 481 F2d 685, 417 US 211; Edmonds v United States, 273 F2d 108; Smith v Slayton, 369 F Supp 1213; McMann v Richardson, 397 US 759; Silverthorne Lbr. Co. v United States, 251 US 385.)

      Michael J. Obus and Matthew Muraskin for respondent.
    I. The statements required as a condition of respondent’s guilty pleas were impelled by the imminent use of his unlawfully obtained prearraignment confessions after the erroneous refusal of the County Court to order their suppression. (Harrison v United States, 392 US 219; Wong Sun v United States, 371 US 471; People v Sugden, 35 NY2d 453; United States v Bohle, 475 F2d 872; People v Arthur, 22 NY2d 325; People v Felder, 47 NY2d 287; People v Samuels, 49 NY2d 218; People v Hogya, 56 NY2d 602; People v Bay, 54 NY2d 808; People v Goodman, 54 NY2d 451.) II. The refusal of the County Court to exclude statements and testimony required as a condition of guilty pleas which had been vacated on previous appeals violated respondent’s privilege against self incrimination. (People v Evans, 85 AD2d 740; People v Spitaleri, 9 NY2d 168; People v Steinmetz, 240 NY 411; Kercheval v United States, 274 US 220; United States v Adelman, 107 F2d 497; Carter v Kentucky, 450 US 288; Wood v United States, 128 F2d 265; Boykin v Alabama, 395 US 238; United States ex rel. Spears v Rundle, 268 F Supp 691, 405 F2d 1037; United States v Albano, 414 F Supp 67.) III. The statements and testimony provided by respondent in exchange for promises of plea and sentence reductions which could not be given effect were involuntary. (Hutto v Ross, 429 US 28; Bram v United States, 168 US 532; Gunsby v Wainwright, 596 F2d 654, 444 US 946; People v Mandel, 61 AD2d 563, 48 NY2d 952;
      People v De Jesus, 63 AD2d 148, 48 NY2d 734; People v Andino, 80 Misc 2d 155; People v Washington, 51 NY2d 214; Rogers v Richmond, 365 US 534; New Jersey v Portash, 440 US 450; People v Bay, 76 AD2d 592, 54 NY2d 808.)
   OPINION OF THE COURT

Jasen, J.

We are asked to decide whether a defendant, who, with the advice and in the presence of counsel, prior to entering into a plea bargain initiated by him, voluntarily furnishes the District Attorney a preplea incriminating statement and, subsequent to the plea and conviction, voluntarily testifies against a codefendant at his trials, is entitled to preclude the People from using any of these statements against him at a subsequent trial ordered by the Appellate Division following suppression of statements made by defendant at the time of his arrest.

On February 18,1976, defendant and his friends, Edwin Fuller and Gary Thompson, robbed a gasoline service station in Farmingdale, Nassau County, New York. Defendant and Fuller entered the station and held the 16-year-old station attendant at gunpoint. Fuller then directed the boy to kneel in front of him with his head down. While defendant watched, Fuller shot and killed the boy. The three then fled in a car driven by Thompson. On March 27, 1976, after being taken to the police station, defendant made several statements admitting his complicity in the crime. Fuller and Thompson were arrested the same day. Fuller confessed, but Thompson did not.

Defendant and Fuller were indicted by a Nassau County Grand Jury on two counts of murder in the second degree, one for intentional murder and one for felony murder, and on related charges arising out of the service station robbery. Thompson was named as a codefendant in both indictments. After a joint hearing, suppression of defendant’s confessions, as well as that of Fuller, was denied. Fuller chose not to plea bargain and proceeded to trial where he was convicted. His conviction was upheld on appeal. (People v Fuller, 65 AD2d 823, mot for lv to app den 46 NY2d 943.)

Defendant, however, chose a different course of action and on November 17, 1976, the day scheduled for his trial, his attorney approached the prosecutor to initiate plea negotiations. Defendant’s attorney represented that defendant would plead guilty and co-operate with the District Attorney by testifying at the trials of his codefendant Thompson in return for reducing the crime to which he would plead from a class A to a class B felony. The prosecutor requested that defendant give a complete account of the crime to demonstrate that he was sincere in his desire to co-operate. Defendant agreed, and, in the presence of his counsel, acknowledged that he was giving the statement voluntarily, without coercion. Thereupon, defendant, still in the presence of counsel, gave a complete account of the crime.

Later that day, defendant, his attorney and the prosecutor appeared in Nassau County Court where the guilty plea was formally entered and accepted.

The defendant and Thompson had also been charged in a Suffolk County indictment with committing an armed robbery of a liquor store on February 17,1976. On November 22, 1976, defendant reached an agreement with the Suffolk County prosecutor similar to that which had been approved in Nassau County, under which defendant would receive a sentence to run concurrently with his sentence in Nassau County.

Pursuant to his agreement to co-operate with the prosecutor, defendant, in the presence of his counsel, testified as a witness for the prosecution at the Thompson trial in Nassau County. Defendant’s testimony at this trial fully implicated him in the commission of the murder of the 16-year-old station attendant. On May 16, 1977, defendant again testified against Thompson in the latter’s trial in Suffolk County, and, in so doing, defendant made admissions which connected him to the Nassau County murder.

On May 24, 1977, defendant was sentenced on the Nassau County conviction to a term of imprisonment of 6 to 18 years, and on June 1, 1977, defendant was sentenced to a concurrent term of imprisonment on the Suffolk County conviction of from 5 to 15 years. Defendant thereafter appealed both convictions.

Subsequently, the Appellate Division reversed the Nassau County Court conviction, holding that defendant’s station house statements were unconstitutionally obtained in violation of his right to counsel and remanded the case for a new trial. (70 AD2d 886.) Defendant’s Suffolk County conviction was subsequently reversed as a matter of discretion in the interest of justice. (72 AD2d 751.)

Upon remand of the Nassau County murder charge, the People served defendant with a written notice (CPL 710.30) of their intent to offer in evidence at trial defendant’s November 17, 1976 Question and Answer (Q and A) statement and his sworn testimony at Thompson’s Nassau and Suffolk County trials. Defendant moved to suppress and preclude those statements, raising several grounds: (1) that the statements in question were an integral part of the plea which was vacated by the Appellate Division and the failure to suppress them would constitute a violation of his right against self incrimination and the rule of People v Spitaleri (9 NY2d 168); (2) that the statements were impelled by the erroneous refusal of the County Court to suppress defendant’s previously unlawfully obtained prearraignment confessions; (3) that the statements were the fruit of the poisonous tree; and (4) that the statements were involuntarily made in that they resulted from promises of reduction of charges and sentences.

The motion was denied on May 22,1980 and, thereafter, defendant pleaded guilty a second time to manslaughter in the first degree and robbery in the first degree, and sentence of the same length as the original term was imposed.

On appeal, the Appellate Division reversed defendant’s second Nassau County Court conviction, concluding that defendant’s Q and A statement and his testimony in the Thompson trials were the impermissible fruit of the original station house statements. (85 AD2d 740.) We disagree.

We commence our analysis by noting the circumstances which attended defendant’s November 17, 1976 Q and A statement and plea bargain. The plea minutes disclose that the defendant had consulted with his attorney and that he gave the statement willingly; his attorney was present and participated in the transcription of the Q and A statement. Defendant further agreed to testify at the two trials of Thompson; there was a full colloquy between the court and defendant as to the factual elements of the service station robbery and murder and defendant’s participation in it as well as to the consequences of his plea; defendant stated that his plea was not the result of forcé, threats, pressure or persuasion and that he had discussed all the facts and circumstances, possible defenses, and his legal and constitutional rights with his attorney, and that there had been no “conversations, commitments, promises, assurances or anything * * * said” other than what had been indicated on the record; the court concluded that the plea was voluntary and made by defendant of his own free will.

Defendant in the Appellate Division successfully argued that the Q and A statement and his testimony at the Thompson trials were impelled by the prospect of the imminent use of his prior unconstitutionally obtained station house confessions and were thus the fruit of a poisonous tree. In support of his argument, he cited the holding of the Supreme Court of the United States in Harrison v United States (392 US 219). In that case on the defendant’s first trial, when the People introduced defendant’s three pretrial confessions, he took the witness stand to explain and in part to refute those confessions. On appeal after conviction, defendant’s pretrial confessions were held to have been unconstitutionally obtained and his conviction was reversed. At the second trial, the prosecutor read the defendant’s prior testimony. On appeal from the affirmance of the defendant’s second conviction, the Supreme Court reversed, holding that the defendant’s testimony at his first trial was inadmissible on his second trial because it was the fruit of the illegally procured initial confessions.

By contrast, in this case, while the illegally obtained station house confessions preceded the Q and A statement and the Thompson trial testimony in point of time, the interposing of a voluntary guilty plea, based upon the defendant’s assessment of the case, provided insulating attenuation to the illegally procured initial statement by severing the causal link between the predicate illegal activity and defendant’s decision to incriminate himself. There can be little doubt that the plea bargain was voluntarily negotiated and concluded by defendant on advice of his counsel and by it he obtained the considerable independent advantage of a reduced plea and sentence in the event that his first conviction was not overturned for error in the denial of suppression of the station house confessions. However, the fact that his first conviction was thereafter reversed did not negate this independent, bargained-for advantage. In effect, defendant had hedged his position; he stood to gain either by a reversal of his conviction, or, if not, by conviction of a lesser crime.

Under these circumstances, we believe that the connection between defendant’s original unconstitutionally procured station house confessions and the voluntary preplea incriminating statement made by him to the prosecutor, as well as the testimony given at the Thompson trials, was not so direct or unbroken as to require suppression of this evidence as fruit of a poisonous tree. The same conclusion has been reached by other courts. (Cf. United States v Ceccolini, 435 US 268; United States v Davis, 617 F2d 677; United States v Stevens, 612 F2d 1226; United States v Hoffman, 385 F2d 501.)

We turn now to defendant’s contention that our decision in People v Spitaleri (9 NY2d 168, supra) precludes the People from using his Q and A statement or his testimony at the two Thompson trials. In People v Spitaleri (supra), this court held that evidence of a defendant’s guilty plea could not be introduced at his criminal trial after that plea had been withdrawn and a plea of not guilty entered in its place. A similar decision had previously been reached by the United States Supreme Court in Kercheval v United States (274 US 220). While acknowledging that the plea was probative evidence of defendant’s guilt, as are all admissions, it was reasoned that it would be unfair to allow a defendant to withdraw a plea of guilty and then permit its use against him at trial. Such a rule, the court held, would make the court’s original decision to allow withdrawal of the plea meaningless. Spitaleri rested entirely on fairness grounds and was in no way constitutionally or statutorily compelled.

. In this case, the District Attorney does not seek to use defendant’s vacáted plea against him. Instead, the People seek to use defendant’s preplea factual admissions of the crimes charged made to the prosecutor and the subsequent testimony (six months later) he gave at the Thompson trials, all of which he made with the advice and in the presence of his attorney. Nevertheless, defendant contends that considerations of fundamental fairness require that we extend Spitaleri to suppress his preplea statement and postplea testimony, along with his plea. We disagree.

Defendant was indicted on two counts of murder in the second degree and one count of robbery. If convicted after a trial, he faced a possible sentence of life imprisonment. Consequently, after the motion to suppress his station house confession was denied, defendant, after consultation with counsel, sought to plea bargain with the prosecutor for a reduced charge. After an extended conference, the prosecutor agreed, provided that defendant gave a complete account of the crimes charged to demonstrate that he was sincere in his desire to co-operate. In the presence of his attorney, defendant agreed and acknowledged that his answers to the questions asked.of him would be completely voluntary. Thereupon, defendant, still in the presence and with the advice of his attorney, gave a complete account of the crimes for which he was indicted. In addition, defendant agreed to testify against his codefendant at his subsequent trials. Later that same day, defendant, his attorney and the prosecutor appeared in Nassau County Court and the recommended plea to the lesser charge of manslaughter, first degree, and robbery, first degree, was formally entered and accepted. Subsequently, defendant was allowed to plead to lesser charges with respect to another robbery committed in Suffolk County.

Although fully aware that the Q and A statement and testimony at the Thompson trials would be tantamount to admissions inculpating him in the robberies and murder, neither defendant nor his attorney expressed as a condition of the pleas that statements made pursuant thereto could be withdrawn upon a successful appeal of his motion to suppress statements made at the time of his arrest. The record is entirely devoid of any such condition to the plea bargain. Defendant, therefore, by agreeing to enter an unconditional plea when it would have been a simple task to include such a limiting condition as part of that plea, assumed the risk that the challenged evidence might be used against him if he succeeded on his appeal to have his original station house confession suppressed. By doing so, he cannot now be heard to say that principles of fairness require us to insert such a condition into the agreement after both parties have fully complied with the terms thereof. To adopt such a rule would do irreparable damage to the integrity of the plea bargaining process.

We are not faced with the situation where the prosecutor failed to honor the terms of the plea agreement, thus requiring exclusion of inculpating statements in order to protect the integrity of the plea bargain, as was the case in People v McConnell (49 NY2d 340) and People v Smith (94 Misc 2d 384). Here, on the other hand, the prosecutor and the court fully honored the terms of the plea agreement and, thus, those cases are inapplicable. It is important to note that as a result of the plea agreement, defendant, rather than face a possible sentence of life imprisonment, received a greatly reduced sentence of 6 to 18 years. Under these circumstances, allowing defendant, who received the full benefit of his agreement, to unilaterally inject a new condition into that agreement, permitting retroactive retraction of his testimony thereunder, would unjustifiably deprive the District Attorney, and in turn the public, of the benefits of a fairly negotiated agreement. Because our decision in Spitaleri does not rest on constitutional or statutory grounds, we believe that it is unnecessary and undesirable to reach out and suppress the challenged evidence of guilt on the basis of that decision. By refusing to extend the Spitaleri doctrine to the facts of this case, we would hold that each party to the voluntarily entered-into plea agreement is entitled to the benefits emanating from the agreement which cannot be retroactively vitiated. To hold otherwise would make a mockery of the plea bargaining process. (Cf. People v McConnell, 49 NY2d 340, supra.)

Furthermore, we believe, as a matter of policy, that the principles espoused in People v Spitaleri (9 NY2d 168, supra) with respect to fundamental fairness do not apply to the situation before us. What is so unfair here? Defendant had the opportunity, if he so desired, to express as a condition of his pleas that none of his statements and future testimony would be used against him if he succeeded on his appeal of the original suppression ruling. This was entirely within his control. However, after consulting his attorney, he did not even attempt to so condition his plea. Under these circumstances, we do not believe that considerations of fundamental fairness require suppression of the challenged evidence. On the contrary, it would be fundamentally unfair to the prosecution, and in turn the public, to rewrite the parties’ agreement after the fact to include this condition which defendant could have but did not include.

Exclusion of evidence of defendant’s guilty plea provides all the protection necessary to assure that the court’s decision to allow defendant to withdraw that plea is a meaningful one as required by Spitaleri. Providing an additional ground for exclusion of probative evidence serves only to denigrate the plea bargaining process and deprives a Judge or jury of evidence which is important to the truth-finding process.

In sum, suppression of the evidence challenged in this case is neither constitutionally nor statutorily required. We hold, therefore, that the integrity of the plea bargaining process, as well as balanced fundamental fairness, require that Spitaleri not be extended to suppress either defendant’s Q & A statement or his testimony on the Thompson trials.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division, Second Department, for determination of the facts. (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b].)

Wachtler, J.

(concurring). I agree that the order of the Appellate Division should be reversed and the defendant’s guilty plea reinstated. However, in my view, it is only necessary to consider one of the defendant’s arguments on the merits in order to reach this conclusion.

As the court notes, there is no merit to the defendant’s constitutional arguments. In addition, we -have consistently held that a defendant who pleads guilty forfeits his right to appellate review of rulings on nonconstitutional points (see, e.g., People v Thomas, 53 NY2d 338). Because the defendant’s argument, that the statements and testimony he gave in connection with his first plea should be inadmissible under People v Spitaleri (9 NY2d 168), falls into this latter category, it should be deemed forfeited by his guilty plea.

The fact that the defendant made the Spitaleri argument during the course of a suppression hearing is irrelevant. The grounds upon which a court may grant an order to suppress are specified in CPL 60.45 (subd 2) (see, also, CPL 710.20) and do not include the Spitaleri holding. Thus, in substance, if not in form, the court’s order denying the defendant’s motion on this point, is nothing more than a pretrial decision on a common-law rule of evidence. It does not involve the type of determination which the Legislature has chosen to preserve for appellate review following a guilty plea (CPL 710.70, subd 2).

Similarly irrelevant is the prosecutor’s “failure” to object to the defendant’s making this argument during the course of a suppression hearing. A prosecutor cannot expressly agree to preserve for appellate review an issue which is forfeited by a guilty plea (People v Thomas, supra). The prosecutor’s default should have no greater effect on the defendant’s right to appeal issues necessarily forfeited, as a matter of law, following a guilty plea.

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

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

      . There first is some procedural underbrush to be cleared.
      The Spitaleri-Kercheval doctrine has not been regarded as of constitutional dimension. In the former case, we expressly declined to place it on a constitutional footing (9 NY2d 168, 173, supra), and no case has been cited in which the Supreme Court has placed the Federal counterpart rule on a constitutional premise. In this circumstance, we would normally hold that defendant had forfeited his right to advance a contention based on a nonconstitutional, evidentiary ground on appeal in consequence of his having pleaded guilty the second time (cf. People v Di Raffaele, 55 NY2d 234, 240; People v Thomas, 53 NY2d 338). Where, as here, a defendant has admitted commission of the crime with which he has been charged, his plea normally renders irrelevant any consideration of a contention that his conviction should be reversed for evidentiary error.
      CPL 710.70 (subd 2), however, prescribes an exception to the general rule: “An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.” Accordingly, defendant here may claim the benefit of that provision. On a subsidiary level, any contention on the part of the People that the Spitaleri rule is not among the grounds on which suppression may be sought under the statute (CPL 710.20), and thus would fall outside the scope of CPL 710.70 (subd 2), had not been preserved for our review inasmuch as there is no indication in the record or assertion in the briefs that this objection was raised by the People on the suppression motion.

      . Defendant, at oral argument, indicated that the omission from the plea agreement of a provision prohibiting defendant from appealing the denial of his original suppression motion is somehow relevant. We disagree. If the defendant wished to prevent future use of the challenged evidence, it was incumbent upon him to structure the plea agreement accordingly. Because defendant failed to do this, the District Attorney had no reason to condition the plea on defendant agreeing not to appeal the suppression ruling. Indeed, if defendant had requested the additional benefit of prohibiting the District Attorney from using his subsequent Q & A statement and testimony against him in the future, the District Attorney might then have had reason to require, in return, that defendant waive his right to appeal the suppression ruling. As the agreement stood, the District Attorney had no reason or obligation to impose such a requirement.