author: Wachtler, J.

text:
    In the Matter of Rochester Christian Church, Inc., et al., Appellants, v State of New York Public Service Commission et al., Respondents.
    Argued January 12, 1982;
    decided February 23, 1982

      POINTS OF COUNSEL

      David C. Gibbs, Jr., and Charles E. Craze, of the Ohio Bar, admitted on motion pro hac vice, and Samuel G. Brundage for appellants.
    I. The church schools of petitioner churches are operated for religious purposes as understood by section 76 of the New York Public Service Law. (Matter of Community Synagogue v Bates, 1 NY2d 445; Slevin v Long Is. Jewish Med. Center, 66 Misc 2d 312; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of Westbury Hebrew Congregation v Downer, 59 Misc 2d 387; Matter of Unitarian Universalist Church of Cent. Nassau v Shorten, 63 Misc 2d 978; Matter of Faith for Today v Murdock, 11 AD2d 718, 9 NY2d 761; NLRB v Catholic Bishop of Chicago, 440 US 490; McCollum v Board of Educ., 333 US 203; Everson v Board of Educ., 330 US 1; Lemon v Kurtzman, 403 US 602.) II. The term “exclusively” within the context of section 76 of the New York Public Service Law is to be interpreted in the sense of “principal” or “primary”; petitioner churches utilize their gas and electric services primarily in connection with religious purposes. (People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350; People ex rel. Untermyer v McGregor, 295 NY 237; Greater N. Y. Corp. of Seventh Day Adventists v Town of Dover, 29 AD2d 861, 23 NY2d 682; Gospel Volunteers v Village of Speculator, 33 AD2d 407, 29 NY2d 622; Matter of Multi Million Miles Corp. v State Liq. Auth., 55 AD2d 866, 43 NY2d 774; Matter of Calvary Presbyt. Church v State Liq. Auth., 245 App Div 176; People ex rel. Clausen v Murray, 16 Misc 398, 5 App Div 441; People ex rel. Cairns v Murray, 148 NY 171; Pouch v Prudential Ins. Co., 204 NY 281; Matter of Guardian Life Ins. Co. of Amer. v Joseph, 272 App Div 481, 297 NY 976.) III. The Public Service Commission’s interpretation and application of section 76 of the Public Service Law violates the churches’ rights to the free exercise of their religion as guaranteed by the First Amendment to the United States Constitution and section 3 of article I of the New York Constitution. (Sherbert v Verner, 374 US 398; Thomas v Collins, 323 US 516; Wisconsin v Yoder, 406 US 205; Watson v Jones, 13 Wall [80 US] 679; Gonzalez v Archbishop, 280 US 1; Kreshik v St. Nicholas Cathedral, 363 US 190; Presbyterian Church v Hull Church, 393 US 440; Serbian Orthodox Diocese v Milivojevich, 426 US 696; Cantwell v Connecticut, 310 US 296; Murdock v Pennsylvania, 319 US 105.) IV. The Public Service Commission’s interpretation and application of section 76 of the Public Service Law violates the establishment clause of the First Amendment to the United States Constitution and section 3 of article I of the New York Constitution. (Wolman v Walter, 433 US 229; NLRB v Catholic Bishop of Chicago, 440 US 490.) V. The authorities upon which the Public Service Commission relies are not adequate to sustain its position. (Crusade for Christ v Town of New Lebanon, 36 AD2d 247, 31 NY2d 765.)

      Charles R. Gibson and David E. Blabey for State of New York Public Service Commission, respondent.
    The parochial schools operated by petitioners are not entitled to the residential rate under section 76 of the Public Service Law or otherwise. (Crusade for Christ v Town of New Lebanon, 36 AD2d 247, 31 NY2d 765.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether the utility rate applicable to “domestic consumers” and religious institutions utilizing the service “exclusively in connection with such religious purposes” (Public Service Law, § 76) applies to gas and electricity consumed by parochial schools where both secular and religious subjects are taught. The Public Service Commission has determined that such schools are not operated “exclusively” for religious purposes within the meaning of the statute. In an article 78 proceeding brought by several churches which maintain parochial schools, the Supreme Court annulled the determination but the Appellate Division reversed and reinstated it. The churches now appeal to this court.

The petitioners are churches organized under the Religious Corporation Law. In addition to providing facilities for religious services each of the petitioners also operates a school where students in elementary through high school grades receive instruction in the tenets of their faith as well as the secular subjects prescribed by law. The issue before us is presented in the context of schools located on church property, either adjacent to the church or part of the same building, and in which the classrooms are used for both secular and religious instruction. Utility service for these institutions is provided by Rochester Gas and Electric Corporation. t

Prior to 1979 the utility treated the “combined church and school operation” as a single entity which was billed for utility services at.the “domestic rate”. By statute this rate, which is lower than the general rate, is applicable to residential consumers and “any corporation or association organized and conducted in good faith for religious purposes” when the service is “utilized exclusively in. connection with such religious purposes” (Public Service Law, § 76). In 1979, however, the utility company informed petitioners that “a school where secular subjects are taught is an operation which is not exclusively for religious purposes, and a general service rate must be applied”. The more favorable domestic rate would still be applied to utility services furnished to “the church and its related facilities”, as opposed to the school, provided each was separately wired so that they could be billed at different rates. Petitioners were further informed that if this was not done all utility services consumed by the “combined operation” would be billed at the higher general rate.

The petitioners filed a complaint with the Public Service Commission urging that the utility service consumed by the schools was utilized exclusively for religious purposes because each of the schools “is directly affiliated with the respective church and * * * is an integral part of the religious observance of each church.” They explained that the “so called secular subjects, when taught by a church school are taught with a religious connection and are a part of the observation by the church of its religious tenets. These tenets require that all subject matter must be religiously connected and must be taught to the children in the church school as mandated by the Bible * * * all subjects are taught from a religious point of view and with a religious inflection. Thus, when the buildings are used to teach the children, the religious practices of the churches are being accomplished.” They also relied on court decisions in which the terms “exclusively religious” and similar language employed in other statutes had been interpreted broadly to mean “primarily religious”. They further contended that the utility’s interpretation of the statute would violate the free exercise clause of the First Amendment.

The commission held that section 76 of the Public Service Law did not apply to educational institutions. It was noted that in older statutes dealing with tax exemptions (former Tax Law, § 4, subd 6; [now Real Property Tax Law, § 421, subd 1, par (a)]; Tax Law, §§221, 249-c, subd [3]) the Legislature had expressly provided that the benefits of the law would extend to organizations serving religious and educational purposes. Since the Legislature made no similar references to educational institutions when it subsequently enacted section 76 of the Public Service Law in 1934 the commission found an implied legislative intent to exclude such institutions. In reaching this conclusion the commission relied upon, and specifically adopted the reasoning of an unreported lower court decision which is apparently the only known case to address the issue (Staten Is. Bd. of Jewish Educ. v Brooklyn Union Gas Co., Municipal Ct of City of NY, Borough of Richmond, July 27, 1961, affd Supreme Ct, App Term, 2d dept, Oct. 30, 1961). The cases cited by the petitioners in which the courts had given an expansive meaning to religious purposes and uses in statutes, such as the tax exemption law, were rejected on the ground that “none are directly applicable to the present issue, nor do they involve our statute.”

The petitioners then commenced this article 78 proceeding to have the commission’s determination annulled. The Supreme Court granted the relief on the ground that providing formal education is “[floremost among * * * [the] varied legitimate purposes” of a church and “it would be an unwarranted and unreasonable straining of the statutory language to arbitrarily draw a line between parochial and secular studies taught within the religious structure.”

The Appellate Division reversed and reinstated the commission’s determination. Like the commission the Appellate Division found inapplicable those cases construing the term “ ‘exclusively’ when similarly used in other statutes” to mean “primarily” (81 AD2d, p 207). Nevertheless the court concluded that by providing secular and religious education in furtherance of “two coequal objectives” petitioners’ schools could not be described as either exclusively or even primarily religious.

Although our prior cases defining the legitimate scope of religious uses and purposes were not specifically addressed to section 76 of the Public Service Law they are not as irrelevant as the commission and the Appellate Division assume. The effect of this statute is to give religious institutions the benefit of a utility rate more favorable than the general rate. In this regard it is but one of many statutes which place religious institutions in special protective categories with respect to various activities such as paying taxes (Real Property Tax Law, § 421, subd 1, par [a]), zoning (see, e.g., Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508) and the use of alcohol in the community (Alcoholic Beverage Control Law, § 64, subd 7). Of course the statutes are not identically worded in all particulars, but it is significant that in defining the organization or activity to be benefited the Legislature consistently requires that it be “exclusively” religious, as it has in the statute now before us. The most striking parallel is found in the real property tax exemption statute (Real Property Tax Law, § 421, subd 1, par [a]) which in terms nearly identical to section 76 applies to property owned by a “corporation or association organized or conducted exclusively for religious * * * purposes” and “used exclusively for ’ * * * such purposes”. When the Legislature has employed similar terms in statutes having a common purpose it is reasonable to assume that it intended a uniform meaning when, as here, there is no indication of a contrary intent (see, e.g., Matthews v Matthews, 240 NY 28, 35).

Religious services are, of course, “exclusively religious”, but the term embraces more than that. Religious activities are not confined to a church or house of worship. Traditionally churches and religious organizations engage in a wide variety of activities which may be seen to be “exclusively religious” when they are reasonably incidental to the religious goal (People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350; cf. Matter of St. Luke’s Hosp. v Boyland, 12 NY2d 135, 143). Thus a farm operated by a religious organization to feed its members has been held to be exempt from taxes although farming is not necessarily a religious activity (People ex rel. Watchtower Bible & Tract Soc. v Haring, supra). An exemption has also been held to be applicable to a summer camp maintained for the members of a particular congregation (Greater N. Y. Corp. of Seventh-Day Adventists v Town of Dover, 29 AD2d 861, app dsmd 23 NY2d 682). A school operated by a church to educate its children in a religious context is even more intimately related to religious objectives (cf. Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508, supra). That is particularly true when, as in the cases now before us, it is a tenet of the faith.

The fact that part of the curriculum includes secular subjects does not mean that the facilities are being partly devoted to nonreligious purposes. Nonreligious use of religious facilities typically involves loan or rental of the property, or the sale of its products, to third parties to be used for purposes unrelated to religious objectives (see, e.g., Matter of Multi Million Miles Corp. v State Liq. Auth., 43 NY2d 774; Matter of Trustees of Calvary Presbyt. Church v State Liq. Auth., 270 NY 497; People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350, supra). Here the teaching of secular subjects by a religious school is an integral part of the church’s belief that knowledge of the world should be conveyed and considered in a religious context. If feeding church members can be considered a completely religious activity, educating its children would seem to fall into the same category. Assuming, however, that teaching the secular subjects is not a religious pursuit, it nevertheless would not deprive the institution of its essentially religious character.

Partial or part-time use of a religious facility for nonreligious purposes does not make it any less religious unless, of course, the secular use is the predominant one (Matter of Trustees of Calvary Presbyt. Church v State Liq. Auth., supra; Matter of Multi Million Miles Corp. v State Liq. Auth., supra). The test, as expressed in our more recent opinions, is whether the property is primarily or principally used for religious purposes (Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143, 153; Matter of American Bible Soc. v Lewisohn, 40 NY2d 78, 83; Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87, 93). Thus a church farm which sells a small portion of its food as surplus, does not lose its essentially religious character or its tax exemption (People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350, supra). Nor does the occasional and noncommercial use of a portion of a church by a nonreligious individual or group detract from its primary or paramount function as a religious institution (Matter of Trustees of Calvary Presbyt. Church v State Liq. Auth., supra; Matter of Multi Million Miles Corp. v State Liq. Auth., 43 NY2d 774, supra; cf. Matter of Community Synagogue v Bates, 1 NY2d 445).

In this case the record shows that the teaching of religious beliefs is the paramount objective and that it pervades all subjects whether secular or religious. Indeed the courts have long recognized that this is generally, if not universally^ true of parochial schools (see, e.g., Lemon v Kurtzman, 403 US 602, 617; Tilton v Richardson, 403 US 672, 685; Meek v Pittenger, 421 US 349, 370) at least at the elementary and high school levels (cf. Roemer v Maryland Public Works Bd., 426 US 736) and that the primary reason they were established and maintained by religious organizations is for “the propagation of a religious faith” (NLRB v Catholic Bishop of Chicago, 440 US 490, 503, quoting Douglas, J., concurring in Lemon v Kurtzman, supra, p 628). Thus we conclude that the petitioners’ parochial schools are primarily or “exclusively religious” within the meaning of section 76 of the Public Service Law and that they are entitled to the domestic rate for the utilities they consume.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of the Supreme Court, Albany County, should be reinstated.

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

Order reversed, etc.

       No issue has been raised as to whether the statute extending the mo$e favorable domestic rate to religious organizations violates the establishment clause of the First Amendment nor do we reach that issue in this case.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    In the Matter of the Estate of Alice Brandon, Deceased. Ann Murphy et al., Appellants; Ethel Bashnal, as Executrix of Alice Brandon, Deceased, Respondent.
    Argued January 14, 1982;
    decided February 18, 1982

      POINTS OF COUNSEL

      John R. Kelligrew for appellants.
    I. The admission of prior verdicts that appellant Murphy exercised undue influence and fraud constituted reversible error. (Ross v Ackerman, 46 NY 210; Matter of Dale, 159 Misc 578; People v Molineux, 168 NY 264; Altman v Ozdoba, 237 NY 218; People v Fiore, 34 NY2d 81; Boyd v Boyd, 164 NY 234.) II. The admission of the incompetent evidence was not harmless error. (Altman v Ozdoba, 237 NY 218.) III. Respondent failed to establish that appellant Murphy received the money on certain issues and was present at the time of the fraud in another as a matter of law.

      William A. Egan, Jr., for respondent.
    I. The collateral acts were admissible because they were probative and outweighed any potential prejudice. (Boyd v Boyd, 164 NY 234; Altman v Ozdoba, 237 NY 218; Faucett v Nichols, 64 NY 377; Hall v Naylor, 18 NY 588; People v Fiore, 34 NY2d 81.) II. Assuming, arguendo, error in the admission of collateral acts it would be harmless error because the result would be the same. (Children’s Aid Soc. of City of N. Y. v Loveridge, 70 NY 387; Matter of Schillinger, 258 NY 186; Smith v Keller, 205 NY 39; Matter of Smith, 95 NY 516; Matter of Kaufmann, 20 AD2d 464, 15 NY2d 825; Heath v Koch, 74 App Div 338, 173 NY 629; Buchanan v Belsey, 65 App Div 58; Matter of Whitmarsh, 133 Misc 858.) III. The circumstantial case against appellants was sufficient as a matter of law. (Spiegel v Saks 34th St., 43 Misc 2d 1065, 26 AD2d 660; People v Cleague, 22 NY2d 363; People v Wachowicz, 22 NY2d 369; Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203.)
   OPINION OF THE COURT

Jasen, J.

In this discovery proceeding brought by the executrix to recover property obtained by appellants from the decedent by means of fraud and undue influence, we are asked to decide whether it was error to admit evidence of two prior judgments decreeing that one of the appellants had engaged in fraud and undue influence in obtaining property from two other elderly individuals.

The record discloses that the decedent, Alice Brandon, was rather frugal by nature. For example, it was said that she used an egg timer while making long distance telephone calls. As a result of her temperate life-style, decedent had managed to amass a tidy sum. Unfortunately, the onset of various ailments, including terminal cancer, made it impossible for the 75-year-old widow to continue to care for herself, and, in December, 1976, she visited the Friendly Acres Home for Adults with the thought of spending her remaining years there. At Friendly Acres, decedent met the owner and operator of the nursing home, appellant Ann Murphy. In conversations with Mrs. Murphy, decedent expressed some concern about her ability to adjust to the institutional life-style at Friendly Acres. Thereupon, Mrs. Murphy offered to take decedent into her private residence, a luxurious home located adjacent to the grounds of a Westchester country club. Decedent quickly accepted this offer and moved into the Murphy home on or about September 1,1977, paying $600 per month for room and board.

In the months that followed, decedent became almost totally dependent on Mrs. Murphy, and the decedent’s family and friends found it increasingly difficult to communicate with her. When they did see her, decedent indicated that she was displeased with her new home. In addition, decedent’s health became progressively worse, and, on September 24, 1977, she apparently suffered a stroke. Yet, perhaps the thing that perplexed her friends and family the most was the drastic change in decedent’s personality immediately after moving into the Murphy home. A person who characteristically did not share her wealth with even those who were closest to her, decedent began showering her new landlord with numerous “gifts”. Most notably, decedent provided Mrs. Murphy with the money to purchase a Mercedes-Benz automobile at a cost of approximately $20,000. In addition, decedent agreed to finance a trip to Florida for herself, Mrs. Murphy and the appellant Mortimer C. O’Brien, Jr.

Alice Brandon died less than one year after moving into the Murphy home. During the last eight months of her life, nearly $130,000 was transferred from the various accounts in her name, usually with some form of “assistance” from Mrs. Murphy. It is undisputed that when decedent entered the Murphy home in September, 1977, she had a net worth in excess of $150,000. Upon her death on May 3,1978, only $35,000 could be located.

The executrix then instituted this proceeding pursuant to SCPA 2103 seeking to recover the assets of the estate of Alice Brandon from the appellants. As a result of a demand made by the executrix (see SCPA 502), the matter was tried before a jury. Over objection, the executrix was permitted to question Mrs. Murphy about two prior judgments that had been entered against her. Specifically, Mrs. Murphy admitted on the stand that one Daniel Sullivan, while a resident in the Murphy home, had set up a trust account for her benefit, but that a judgment had been entered in 1976 ordering the return of the trust corpus to the Sullivan estate on the ground that the trust was the product of undue influence exerted by Mrs. Murphy on the elderly gentleman. Mrs. Murphy also admitted that one Louise Metz, while a resident in the Murphy home, had executed a will that was denied probate in 1978 upon a finding that it was the result of undue influence and fraud engaged in by Mrs. Murphy. By coincidence, Mrs. Murphy happened to be the principal beneficiary under that will.

The Surrogate ruled that the testimony concerning the two prior judgments was admissible as parts of a common scheme or plan by Mrs. Murphy to obtain money from elderly people by means of fraud and undue influence. In charging the jury, however, the Surrogate stated that the testimony concerning the two prior judgments could not be considered as direct evidence on the question whether Mrs. Murphy actually obtained money from the decedent, but could only be used for purposes of determining whether she acted with the intent to obtain the decedent’s property by means of fraud and undue influence. The jury found that the appellants had obtained a considerable portion of Alice Brandon’s estate through the use of fraud and undue influence, and a decree was entered directing appellants to return that which was improperly obtained.

On appeal, a unanimous Appellate Division affirmed, stating that “the Sullivan-Metz matters were properly admitted as tending to establish a common scheme or plan under which appellants inveigle into Murphy’s place of residence aged and ailing residents of her nursing home for the purpose of stripping them of their life savings.” (79 AD2d, at p 248.) We affirm, but on a somewhat different rationale than that relied upon by the court below.

A general rule of evidence, applicable in both civil and criminal cases, is that it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion. (See Richardson, Evidence [10th ed], §§ 170, 184.) Certain exceptions to this rule have been recognized where the evidence offered has some relevancy to the issues presented other than mere similarity. Although not subject to precise categorization, evidence of other similar acts will be admitted if it tends to establish: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan; or (5) identity. (People v Molineux, 168 NY 264, 293; accord Nev York Proposed Code of Evidence, § 404, subd [b].) This appeal involves the second and fourth categories of the celebrated Molineux exceptions.

Where guilty knowledge or an unlawful intent is in issue, evidence of other similar acts is admissible to negate the existence of an innocent state of mind. (People v Molineux, supra, at pp 297-298; see People v Schwartzman, 24 NY2d 241, 247-249; Richardson, Evidence [10th ed], §§ 172-176.) The focus here is not on the actual doing of the act, for the act is either conceded or established by other evidence. Rather, the element in issue is the actor’s state of mind, and evidence of other similar acts is admitted under this exception because no particular intent can be inferred from the nature of the act committed. (People v Molineux, supra; People v Katz, 209 NY 311, 327-328; Richardson, Evidence [10th ed], § 172.) Indeed, the intent exception has often been applied in cases where fraud is alleged because a fraudulent intent rarely can be established by direct evidence. (People v Schwartzman, 24 NY2d 241, 248, supra; Beuerlien v O’Leary, 149 NY 33, 38-39; Richardson, Evidence [10th ed], § 184.) Similar considerations come into play when it is claimed that a person has exerted undue influence.

The intent exception is predicated primarily on a theory of increased probability arising from repetitive actions. According to Professor Wigmore: “The argument here is purely from the point of view of the doctrine of chances — the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all.” (2 Wigmore, Evidence [Chadbourn rev ed], § 302, p 241.) Stated somewhat differently, the successive repetition of similar unlawful acts tends to reduce the likelihood of the actor’s innocent intent on the particular occasion in question. (See, e.g., People v Marrin, 205 NY 275, 282.) The crucial consideration under the intent exception is, therefore, the degree of similarity between the various acts and not their connection with one another. (People v Schwartzman, 24 NY2d 241, 248, supra; 2 Wigmore, at p 245; see, also, McCormick, Evidence [2d ed], § 197, p 468.)

In contrast, somewhat different principles apply where evidence of similar acts is admitted pursuant to the “common scheme or plan” exception. Here, proof of similar acts is offered not to establish a particular intent, but to prove that the person did the act in issue. (2 Wigmore, § 304, at p 249.) Under this exception, evidence of collateral acts is admitted provided it is shown that the collateral acts are sufficiently connected with the act in issue such that each forms a part of a common plan on the part of the actor to achieve some ultimate result. (People v Molineux, supra, at pp 305-310; see, also, Altman v Ozdoba, 237 NY 218; see, generally, Richardson, Evidence [10th ed], §§ 179, 184.) Unlike the intent exception, mere similarity between the acts is an insufficient predicate for admissibility under the common scheme or plan exception. Rather, “[s]ome connection between the [acts] must be shown to have existed in fact and in the mind of the actor, uniting them for the accomplishment of a common purpose, before such evidence can be received.” (People v Molineux, supra, at p 306.) Indeed, there must be such a clear concurrence of common features — i.e., time, place and character — that “the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” (2 Wigmore, Evidence [Chadbourn rev ed], § 304, p 249; compare, e.g., People v Grutz, 212 NY 72, with People v Duffy, 212 NY 57.) In the absence of such a clear connection between the collateral acts and the act in issue, the evidence should be excluded. (People v Molineux, supra; see People v Fiore, 34 NY2d 81, 84-87.)

Thus, the intent exception and the “common scheme or plan” exception constitute two discrete theories under which evidence of collateral acts may be admitted. Unfortunately, the distinction between the two exceptions has sometimes been overlooked and, as a result, the more stringent requirements of the common scheme or plan exception (i.e., direct connection in time, place and character) have been applied in cases in which only the intent theory was involved. (E.g., Boyd v Boyd, 164 NY 234, 241-242; Hall v Naylor, 18 NY 588, 589; see Richardson, Evidence [10th ed], §§ 175,177; Fisch, New York Evidence [2d ed], § 216, p 128.) In fact, a failure to distinguish between these two exceptions was the cause of the problem in this case.

In the end, the main distinction between the two exceptions is found in the purpose for which evidence of collateral acts is admitted under each. As Professor Wigmore explains: “The clue to the difference is best gained by remembering that in the one class of cases the act charged is assumed as done, and the mind asks only for something that will negative innocent intent; and the mere prior occurrence of an act similar in its gross features — i.e., the same doer, and the same sort of act, but not necessarily the same mode of acting nor the same sufferer, may suffice for that purpose. But where the very act is the object of proof, and is desired to be inferred from a plan or system, the combination of common features that will suggest a common plan as their explanation involves so much higher a grade of similarity as to constitute a substantially new and distinct test.” (2 Wigmore, Evidence [Chadbourn rev ed], § 304, p 251.)

Applying these principles to the facts of this case, the prior judgments against Mrs. Murphy should not have been admitted as evidence of a common scheme or plan. The executrix made no showing that the Sullivan-Metz incidents had any direct connection, either in fact or in Mrs. Murphy’s mind, with the fraud and undue influence visited upon Alice Brandon. Indeed, the record indicates that the Sullivan-Metz matters were no more than “separate and independent transaction^] entered into as the occasion arose and not in pursuance of any preconcerted general plan or design.” (People v Grutz, 212 NY 72, 79, supra.)

Nevertheless, we conclude that there should be an affirmance. As noted earlier, although the evidence of the two prior judgments initially was admitted under the common scheme or plan exception and that exception was referred to in the charge, the Surrogate ultimately instructed the jury that testimony concerning the SullivanMetz matters could only be used “upon the question of the intent of Ann Murphy to obtain monies from Alice Brandon by fraud or undue influence.” The jury was specifically told that they could not use this testimony as evidence that appellant Murphy in fact obtained the decedent’s property. True, this charge resulted in a shift in the theory under which this evidence initially was admitted. However, inasmuch as both appellants failed to object to the charge as given, they cannot raise that claim for the first time in this court.

For purposes of the intent exception, there was a sufficient degree of similarity between the Sullivan-Metz mátters — as to each of which Mrs. Murphy is bound by the conclusion that she intended to defraud these individuals — and the activities of Mrs. Murphy in this case to permit the introduction of evidence of the two prior judgments in order to negate her innocent state of mind. In all three situations, appellant Murphy brought elderly and infirm individuals into her home, lulled them into a false sense of security and dependence, and then proceeded to strip them of their life savings. Admittedly, these misdeeds occurred over a period of a few years. There is, however, no strict time limitation that governs the admissibility of such proof for the purpose of establishing intent. (See Richardson, Evidence [10th ed], § 177.) Under the particular circumstances of this case, we cannot say, as a matter of law, that these prior acts were so remote in time that the potential for prejudice outweighed the probative value of this evidence on the issue of Mrs. Murphy’s intent to engage in fraud and undue influence.

Finally, contrary to Mrs. Murphy’s contention, there is sufficient circumstantial proof to sustain the jury’s findings that she obtained certain assets from the decedent. Those findings, having been affirmed by the Appellate Division, are now beyond this court’s power of review. (NY Const, art VI, § 3, subd a; CPLR 5501, subd [b].)

For the reasons stated, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed.


author: Gabrielli, J.

text:
    In the Matter of Thomas De Milio, Appellant, v William G. Borghard, as Commissioner of the Department of Environmental Facilities, et al., Respondents.
    Argued January 8, 1982;
    decided February 23, 1982

      POINTS OF COUNSEL

      James M. Rose for'appellant.
    I. The Justice below misapprehended the nature of petitioner’s claim, and incorrectly determined when the Statute of Limitations commences. (Matter of Johnson v Director, Downstate Med. Center, State Univ. of N. Y., 52 AD2d 357, 41 NY2d 1061; Matter of Edell v Municipal Broadcasting System of City of N. Y., 9 Misc 2d 220; Matter of Maynard v Monaghan, 284 App Div 280; Matter of Davis v Kingsbury, 27 NY2d 567; People ex rel. Schau v McWilliams, 185 NY 92; Matter of Quinn v Streeter, 174 Misc 1078; Matter of Foy v Brennan, 285 App Div 669; Austin v Board of Higher Educ., 5 NY2d 430; Matter of Perry v Blair, 49 AD2d 309.) II. Petitioner did not ask for a rehearing, but rather submitted a demand as he was required to do. (Matter of Social Spirits v Town of Colonie, 74 AD2d 933; Austin v Board of Higher Educ., 5 NY2d 430; Matter of Davis v Kingsbury, 27 NY2d 567; Matter of Economico v Village of Pelham, 50 NY2d 120; Matter of Cassidy v Municipal Civ. Serv. Comm. of City of New Rochelle, 37 NY2d 526; Matter of Cordani v Board of Educ., 66 AD2d 780; Matter of Brayer v Lapple, 44 NY2d 741; Matter of Johnson v Director, Downstate Med. Center, State Univ. of N. Y., 52 AD2d 357, 41 NY2d 1061; Matter of Sirles v Cordary, 49 AD2d 330.)

      Samuel S. Yasgur, County Attorney (Eric D. Koster and Jonathan Lovett of counsel), for respondents.
    The proceeding was untimely commenced. (Matter of Williamson v

      Fermoile, 31 AD2d 438, 28 NY2d 731; Matter of Davis v Westchester County Personnel Off., 75 AD2d 600; Matter of Galuppi v New York State Liq. Auth., 12 AD2d 987; Matter of Abramson v Commissioner of Educ. of State of N. Y., 1 AD2d 366; Matter of Davis v Kingsbury, 27 NY2d 567; Matter of Castaways Motel v Schuyler, 24 NY2d 120; Matter of McDermott v Johnson, 2 NY2d 608; Matter of Wininger v Williamson, 46 AD2d 698; Matter of Fiore v Board of Educ., 48 AD2d 850, 39 NY2d 1016; Matter of Qualey v Shang, 70 AD2d 619.)
   OPINION OF THE COURT

Gabrielli, J.

Presented for our determination is the question of whether the four-month limitations period in an article 78 proceeding brought by a probationary governmental employee to review his discharge commences to run from the termination date of his employment or from the date his request for reconsideration of his discharge is denied.

Petitioner was employed in a probationary capacity by the Westchester County Department of Environmental Facilities. By letter of October 12, 1979 from the commissioner of this department he was advised that his employment would be terminated on October 25,1979. In response to this notice of termination, petitioner first commenced an administrative grievance procedure in accordance with his union’s collective bargaining agreement, which proved unavailing. Petitioner also sent a letter to the commissioner on October 29, 1979 requesting that he reconsider the decision to terminate him, alleging that the commissioner had misconstrued certain facts underlying his decision. As alleged by petitioner, he received a negative response to this letter on or about November 15, 1979.

On March 5, 1980, petitioner commenced the present article 78 proceeding to review respondent’s determination terminating his employment. Special Term dismissed the petition on the ground that the proceeding was barred by the four-month limitations period specified by CPLR 217. In doing so, the court measured this period from October 25, 1979, the date on which petitioner’s probationary employment was terminated. The Appellate Division thereofter affirmed, noting that petitioner’s application for reconsideration of an administrative decision did not extend the four-month limitations period, The dissenters below, however, concluded that this period should be measured from November 15,1979, the date on which petitioner’s demand for reinstatement was refused. The issue now presented for our consideration may thus be simply stated: does the four-month limitations period in an article 78 proceeding brought by a probationary governmental employee to challenge his discharge begin to run on the termination date of his employment or upon the subsequent denial of his request for reconsideration of his discharge?

Although the article 78 proceeding was designed to replace the three prerogative writs formerly known as certiorari, mandamus and prohibition (see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 7801:1, pp 25-26), reference to these writs is still useful in determining issues concerning the measurement of the applicable Statute of Limitations. CPLR 217 provides, in pertinent part, that “[u]nless a shorter time is provided in the law authorizing the proceeding, a proceeding against a.body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact, or after the respondent’s refusal, upon the demand of the petitioner or - the person whom he represents, to perform its duty”. The application of this four-month limitation period to a proceeding to challenge the discharge of a governmental employee depends, of course, upon the nature of the proceeding commenced.

An article 78 proceeding to review a discharge from governmental employment falls within one of three categories. Where the employee is entitled to and receives a hearing in connection with his discharge, the proceeding is in the nature of certiorari to review. Certiorari lies to review judicial and quasi-judicial decisions of administrative bodies. (See McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 7801:2, pp 26-29.) The Statute of Limitations runs from the date the administrative determination becomes final and binding.

If the discharged employee is entitled to but is deprived of a hearing, his remedy is by way of mandamus to compel. This remedy lies to compel the performance of a ministerial act enjoined by law. (See McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 7801:4, p 31.) As we noted in Austin v Board of Higher Educ. (5 NY2d 430, 442), “in the case of a proceeding in the nature of mandamus, the aggrievement does not arise from the final determination but from the refusal of the body or officer to act or to perform a duty enjoined by law.” Accordingly, the limitations period for a discharged employee who has been denied a right to a mandated hearing runs from the date his demand for reinstatement was refused.

When an employee is not entitled to a hearing in connection with his discharge, his remedy is by way of mandamus to review. (See McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 7801:3, pp 30-31.) The present derivation of this ancient writ permits the employee to question whether his discharge was arbitrary, unreasonable or capricious. The limitations period for this proceeding runs from the date the determination sought to be reviewed becomes final and binding. Thus, the period runs from the notice of discharge, or the effective date of discharge, if later (Matter of Wininger v Williamson, 46 AD2d 689).

In the present case, it is clear that petitioner’s article 78 proceeding is in the nature of mandamus to review. As a probationary employee, petitioner was not entitled to a hearing in connection with his discharge (Matter of Perry v Blair, 49 AD2d 309, 313; Matter of Ramos v Department of Mental Hygiene, 34 AD2d 925). Hence, the four-month limitations period of CPLR 217 began to run on October 25, 1979, the date of petitioner’s dismissal, and the present article 78 proceeding is therefore untimely. Petitioner’s application for reconsideration of this administrative determination did not serve to extend the four-month limitations period (see Matter of Fiore v Board of Educ., 48 AD2d 850, affd 39 NY2d 1016; Matter of Wininger v Williamson, supra).

The reliance placed by petitioner on Matter of Johnson v Director, Downstate Med. Center, State Univ. of N. Y. (52 AD2d 357, affd 41 NY2d 1061) is misplaced and uftavailing. There, a governmental employee was discharged without the benefit of the hearings to which he was entitled and, thus, it was there proper to conclude that the employee was not required to seek reinstatement within four months from discharge, but could instead delay until such time as requested reinstatement had been refused. In the present case, in contrast, petitioner clearly had no right to a hearing, nor did he seek one, and the limitations period therefore ran from his date of discharge.

Petitioner raises one further issue concerning the timeliness of his petition which deserves brief mention. In August of 1979 petitioner contracted an eye disorder allegedly arising out of his work environment. In the letter notifying petitioner of his discharge from employment, the commissioner listed as reasons for petitioner’s discharge both his poor attendance record before and after the eye problems arose and also his failure to respond to inquiries by the department concerning his attendance following the injury. Petitioner later claimed in his letter requesting reinstatement that he had valid medical reasons for missing work after August, 1979 and, that he had not received his employer’s letter of October 10, 1979 directing him to return to work until after his employment was terminated. This letter, however, gave no explanation for his poor attendance record prior to the date on which his eye disorder began. Petitioner now argues that his proceeding is timely because it does not actually seek review of his discharge, but instead seeks review of the decision to deny his reinstatement. He begins by noting that the article 78 proceeding is designed in part to overturn the arbitrary and capricious action of administrative agencies. In this vein, petitioner maintains that the allegedly arbitrary decision to deny him reinstatement is the decision he now wants reviewed. In presenting this second issue he does not press review of the original decision to discharge him from employment. Rather, he maintains that his original discharge on October 25, 1979, since based upon erroneous information, was not arbitrary or capricious because this information, if true, would readily provide grounds for termination. The crux of his argument is that the commissioner’s later decision to deny petitioner reinstatement, coming áfter petitioner supplied the commissioner with assertedly correct information and an explanation for his conduct, was arbitrary and capricious and is the true determination from which petitioner now seeks review.

We find this line of argument to be unpersuasive. Initially, we note that in form and content the petition in this case relates only to the commissioner’s determination to dismiss petitioner. No reference is included, either factually, by implication or argumentatively, to the November 15 denial of petitioner’s application for reinstatement. Moreover, when petitioner’s present argument is stripped of its veneer, it is apparent that he merely seeks to extend the Statute of Limitations by commencing it from the date a requested reconsideration of an administrative determination is denied. The rule that the four-month limitations period begins to run on the date that the determination to be reviewed becomes final and binding would be completely emasculated if the petitioner could extend the commencement of this period by merely requesting that reconsideration be given to a prior decision because it is asserted that the earlier decision was based upon facts which were misconstrued. It is inescapable in this instance that the limitations period began to run from the date of petitioner’s original discharge.

We therefore conclude that the petition was properly dismissed as untimely because this article 78 proceeding to review the discharge of petitioner, who had no entitlement to a hearing, was commenced more than four months after the determination to be reviewed became final and binding.

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

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

Order affirmed.

       Likewise unavailing is the statement in Matter of Sirles v Cordary (49 AD2d 330, 332, affd 40 NY2d 950), which petitioner urges upon us, concerning the right of an employee discharged without a hearing to delay until such time as he has demanded and been refused reinstatement. In Sirles, although the employee’s collective bargaining agreement contained a hearing provision, it was determined as a matter of public policy that his employer would not be subjected to this provision. As we have noted, the statement in Sirles concerning the timeliness of the employee’s petition generally is correct only as to a case in which the employee was entitled to a hearing.


text:
    In the Matter of the Arbitration between Daryl B. Smith, Appellant, and Firemen’s Insurance Company, Respondent. In the Matter of the Arbitration between David L. Mott, Appellant, and State Farm Insurance Co., Respondent.
    Argued January 12, 1982;
    decided February 23, 1982

      POINTS OF COUNSEL

      John L. Bell for appellant in the first above-entitled proceeding.
    I. The expediting arbitrator’s conclusion that appellant did not intentionally injure himself was not erroneous as a matter of law as determined by the master arbitrator and the court below in the present no-fault arbitration proceeding. (Matter of Shand [Aetna Ins. Co.], 74 AD2d 442; Matter of La Cova v Allstate Ins. Co., 99 Misc 2d 678; Country-Wide Ins. Co. v Harnett, 426 F Supp 1030, 431 US 934; Matter of Furstenberg [Aetna Cas. & Sur. Co.], 49 NY2d 757; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493; Matter of Levine v Zurich Amer. Ins. Co., 49 NY2d 907; Caso v Coffey, 41 NY2d 153; People v Williams, 6 NY2d 18; Wadsworth v Delaware, Lackawanna & Western R.R. Co., 296 NY 206; Thomas v New York, 285 NY 496.) II. Special Term properly vacated the master arbitrator’s award, reinstated the arbitrator’s award and remanded the matter to the arbitrator for further proceedings on the remaining issues. (Matter of Shand [Aetna Ins.

      Co.], 74 AD2d 442; Matter of Furstenberg [Aetna Cas. & Sur. Co.], 49 NY2d 757; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493.)

      William L. Owens for respondent in the first above-entitled proceeding.
    I. The master arbitrator may vacate an award of an arbitrator based upon errors of law or upon the ground that the decision lacked a rational basis. (Matter of Shand [Aetna Ins. Co.], 74 AD2d 442; Matter of La Cova v Allstate Ins. Co., 99 Misc 2d 678; Country-Wide Ins. Co. v Harnett, 426 F Supp 1030, 431 US 934; Matter of Furstenberg [Aetna Cas. & Sur. Co.], 49 NY2d 757; Matter of Petrofsky v Allstate Ins. Co., 78 AD2d 856; Matter of Mott [State Farm Ins. Co.], 77 AD2d 488; Matter of Bamond v Nationwide Mut. Ins. Co., 75 AD2d 812, 52 NY2d 957; Mitchell v Motor Vehicle Acc. Ind. Corp., 98 Misc 2d 882; Matter of Garcia v Federal Ins. Co., 46 NY2d 1040.) II. Judicial review of the decision of a master arbitrator appointed under section 675 of the Insurance Law is restricted to the grounds set forth in CPLR 7511. (Fleming v Allstate Ins. Co., 102 Misc 2d 994.)

      Joseph T. Pondolfino, Jr., for appellant in the second above-entitled proceeding.
    I. The decision and award of the expedited arbitrator was not incorrect as a matter of law. (Chess v Colonial Penn Ins. Co., 93 Misc 2d 765, 46 NY2d 710; Hughes v State of New York, 23 Misc 2d 1081; Durham v Melly, 14 AD2d 389; Matter of Brown v Murphy, 43 AD2d 524; Matter of Garcia v Federal Ins. Co., 61 AD2d 236, 46 NY2d 1040; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442.) II. The master arbitrator’s decision to reverse the expedited arbitrator’s award was based upon factual issues and therefore, beyond the scope of authority conferred upon the master arbitrator by the Insurance Law and the regulations promulgated thereunder. III. The “rational basis” test should apply when a master arbitrator reviews a compulsory arbitration award of an expedited arbitrator which is claimed to be infected by errors of law. (Matter of Shand [Aetna Ins. Co.], 74 AD2d 442; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493; Matter of Furstenberg [Aetna Cas. & Sur. Co.], 49 NY2d 757.) IV. The decision of the expedited arbitrator is founded upon a reasonable hypothesis sufficient to support the questioned interpretation even though there may be grounds for differences of opinion, and therefore, must be affirmed by the Court of Appeals. (Chess v Colonial Penn Ins. Co., 93 Misc 2d 765, 46 NY2d 710; Hughes v State of New York, 23 Misc 2d 1081; Durham v Melly, 14 AD2d 389; Matter of Brown v Murphy, 43 AD2d 524.)

      Martin J. Kane and John Rittinger for respondent in the second above-entitled proceeding.
    I. The acceptance of the appeal by the master arbitrator was within the express authority provided by the Insurance Law. (Montgomery v Daniels, 38 NY2d 41; Country-Wide Ins. Co. v Harnett, 426 F Supp 1030, 431 US 934; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493; Caso v Coffey, 41 NY2d 153; Matter of Levine v Zurich Amer. Ins. Co., 49 NY2d 907; Matter of Furstenberg [Aetna Cas. & Sur. Co.], 49 NY2d 757; Matter of Garcia v Federal Ins. Co., 46 NY2d 1040; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442.) II. The decision of the master arbitrator is supported by a rational basis. (Matter of Bamond v Nationwide Mut. Ins. Co., 75 AD2d 812, 52 NY2d 957; Matter of Furstenberg [Aetna Cas. & Sur. Co.], 49 NY2d 757; Matter of Central Hosp. v Hanover Ins. Co., 49 NY2d 950; Matter of Levine v Zurich Amer. Ins. Co., 49 NY2d 907; Matter of Garcia v Federal Ins. Co., 46 NY2d 1040; Matter of Petrofsky v Allstate Ins. Co., 78 AD2d 856; Fleming v Allstate Ins. Co., 102 Misc 2d 994.)
   OPINION OF THE COURT

Gabrielli, J.

These two appeals involve the proper application of our recent decision in Matter of Petrofsky (Allstate Ins. Co.) (54 NY2d 207), regarding the scope of a master arbitrator’s powers when reviewing an arbitrator’s award made in compulsory arbitration.

In Matter of Smith (Firemen’s Ins. Co.), the first of these appeals, petitioner Smith sustained personal injuries when he exited from the passenger side of a vehicle while it was being driven by his then spouse at a speed of 3Ó miles per hour. His claim for first-party benefits under a no-fault automobile policy was denied by respondent Firemen’s Insurance Company on the basis of its determination that Smith had caused his own injuries (a permissible policy exclusion under Insurance Law, § 672, subd 2, par [a]).

Petitioner sought expedited arbitration of his claim pursuant to section 675 of the Insurance Law and the related regulation (11 NYCRR 65.16). The arbitrator found that Smith had intentionally left the vehicle, but that there was no indication that he intended to harm himself when he did so (there was testimony that Smith had military training in jumping and had jumped from a car at least once before, apparently without injury to himself). The arbitrator relied on McGroarty v Great Amer. Ins. Co. (36 NY2d 358, 364), where it was said: “it is not legally impossible to find accidental results flowing from intentional causes, i.e., that the resulting damage was unintended although the original act or acts leading to the damage were intentional”.

The respondent insurance company appealed the adverse decision to a master arbitrator, pursuant to section 675 of the Insurance Law and the related regulation (11 NYCRR 65.17). The master arbitrator vacated the arbitrator’s award, finding that there was no rational basis on which the arbitrator could find Smith’s injury to have been caused unintentionally and that the arbitrator’s finding was therefore erroneous as a matter of law.

Smith then commenced this proceeding to have the master arbitrator’s award vacated and the arbitrator’s award reinstated. Special Term granted this relief, holding that the master arbitrator had made a factual determination which was beyond his power of review. The Appellate Division reversed, concluding that the master arbitrator’s determination was within the broad power of review granted him and that a rational basis existed for the master arbitrator’s determination that the arbitrator’s finding was erroneous as a matter of law. We agree that the master arbitrator did not exceed his power in this case. There should be an affirmance.

In Matter of Mott (State Farm Ins. Co.), the second of the two appeals before us, petitioner Mott sustained personal injuries in a one-car accident. His claim for first-party benefits was denied by respondent insurance company on the basis of Mott’s intoxication at the time of the accident (a permissible exclusion from coverage under Insurance Law, § 672; subtj 2, par [b]).

An expedited arbitration hearing was held at Mott’s instance. The arbitrator awarded Mott first-party benefits finding that there was insufficient proof that Mott was intoxicated at the time of the accident. A blood test which showed Mott’s blood alcohol level to have exceeded the point of legal intoxication was disregarded by the arbitrator as “insufficient to qualify as probative evidence under [section] 1192 of the [Vehicle and Traffic] Law”. The arbitrator further found it relevant that Mott had not been convicted for driving while intoxicated.

The master arbitrator vacated the arbitrator’s award, making the following findings: that the arbitrator should have considered the blood test results; that a conviction for driving while intoxicated is not a prerequisite to denial of first-party benefits; that other proof regarding the accident and surrounding circumstances was sufficient to prove Mott’s intoxication; and, finally, that Mott was injured as a result of operating a motor vehicle while intoxicated.

Mott then brought this article 75 proceeding to have the master arbitrator’s award vacated on the basis that he exceeded his powers of review and to have the arbitrator’s award reinstated. Special Term granted the requested relief, without prejudice to the insurance company to again pursue the statutory master arbitration proceeding, finding that the master arbitrator had made findings of fact and conclusions of law beyond the authority granted him by the applicable Insurance Law and regulations. The Appellate Division reversed, holding that the master arbitrator did not exceed his authority inasmuch as a rational basis existed to support his finding that the arbitrator’s award was incorrect as a matter of law. We conclude, however, that the master arbitrator’s vacatur was based upon a review of procedural and factual matters outside his powers of review, and that the order of the Appellate Division should therefore be reversed.

In Matter of Petrofsky (Allstate Ins. Co.) (54 NY2d 207, supra) we explained the principle that judicial review of a master arbitrator’s authority to vacate an award under section 675 of the Insurance Law (and related regulations) derives from CPLR 7511 (subd [b], par 1, cl [iii]) and involves the question of whether the master arbitrator has exceeded his power. We further set forth the bases upon which the master arbitrator is empowered to vacate an arbitrator’s award as follows: (1) a CPLR 7511 ground for vacatur exists (held to include the question of whether the award is supported by evidence or other basis in reason, as compulsory arbitration is involved [citing Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493]); (2) the award exceeds the policy limitations; (3) the award is “incorrect as a matter of law”; (4) the award of attorneys’ fees is improper; (5) the award is inconsistent or irreconcilable with an award rendered in Health Services Association arbitration (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 210-211, supra).

The ground relied upon for the master arbitrator’s vacatur of the awards involved in each of the present appeals is that the award was incorrect as a matter of law (11 NYCRR 65.17 [a] [4]). As noted in Petrofsky, this basis for vacatur by the master arbitrator does not include “procedural or factual errors committed in the arbitration below”, by virtue of the express language of the regulation. Thus, the precise question presented by both appeals is whether the master arbitrator exceeded the proper scope of review by passing upon factual or procedural questions, or whether he properly limited his review to questioning the award’s correctness as a matter of law.

In the Smith case, the master arbitrator determined that, as a matter of law, one who exits a car traveling at 30 miles per hour intends to cause his own injury, and that no rational basis existed to support the arbitrator’s finding that the injury was unintentional. There is nothing to indicate that, in reaching this conclusion, the master arbitrator exceeded his statutory power by weighing the evidence or resolving issues such as the credibility of witnesses. Indeed, ,he explicitly concluded “The Arbitrator’s finding * * * is erroneous as a matter of law, and is therefore reversed”, and nothing in his award suggests that this is not an accurate statement of the basis for his reversal. Thus, it is clear that the vacatur was based upon the master arbitrator’s determination that the arbitrator had made an error of law. Such a determination is within the master arbitrator’s powers of review. Having made that determination, the courts are limited in their further review of the master arbitrator’s resolution of that error of law, since we generally will not vacate an arbitrator’s award where the error claimed is the incorrect application of a rule of substantive law (see Matter of Garcia v Federal Ins. Co., 46 NY2d 1040; Matter of Furstenberg [Aetna Cas. & Sur. Co.], 49 NY2d 757), unless it is so “irrational as to require vacatur” (Cohn v Royal Globe Ins. Co., 49 NY2d 942, 944; Matter of McKenna v County of Nassau Off. of County Attorney, 75 AD2d 815, affd 51 NY2d 902). There is nothing in this record to suggest that the master arbitrator’s award is irrational, and, no other ground for vacatur having been urged on this appeal, the master arbitrator’s award was properly reinstated, by the Appellate Division.

In the Mott case, however, a different situation is presented. Here, the arbitrator’s award was vacated by the master arbitrator on the basis of conclusions which were quite clearly outside the master arbitrator’s review powers. These conclusions related to the propriety of the arbitrator’s refusal to consider the blood test results and to the weight of the evidence regarding Mott’s intoxication at the time of the accident. The question of the admissibility of evidence involves a procedural issue, and the master arbitrator’s differing view regarding this issue is an insufficient basis for vacating an arbitrator’s award. Furthermore, the master arbitrator is without power to vacate an award based upon a de novo review of the evidence (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212, supra). His scope of review in this regard is limited to determining whether the award was incorrect as a matter of law, and this ground for vacatur was not the basis for the decision in this case. Thus, Special Term properly vacated the master arbitrator’s award and reinstated the arbitrator’s award.

Accordingly, in Matter of Smith (Firemen’s Ins. Co.), the order of the Appellate Division should be affirmed, with costs. In Matter of Mott (State Farm Ins. Co.), the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, Delaware County, to be remanded to the master arbitrator for further proceedings not inconsistent with this opinion; this disposition being without prejudice to an application to Supreme Court, Delaware County, for counsel fees.

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

In Matter of Smith (Firemen’s Ins. Co.): Order affirmed, with costs.

In Matter of Mott (State Farm Ins. Co.): Order reversed, with costs, and matter remitted to Supreme Court, Delaware County, with directions to remand to the master arbitrator.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Rosario S. Di Raffaele, Appellant.
    Argued January 15, 1982;
    decided February 23, 1982

      POINTS OF COUNSEL

      Bernard Ulano and Aaron Nussbaum for appellant.
    I. The statute in issue (L 1976, ch 424; Penal Law, § 190.42) is unconstitutionally vague and overbroad. (People ex rel. Nauss v Graves, 283 NY 383; People v Shakun, 251 NY 107; United States v Bass, 404 US 336; Berger v New York, 388 US 41.) II. The denial of appellant’s motion to suppress unlawfully acquired evidence was constitutional error. (Smith v Maryland, 442 US 735; People v Isaacson, 44 NY2d 511; Katz v United States, 389 US 347; United States v Dionisio, 410 US 1; People v Perel, 34 NY2d 462; Matter of Application of U. S. of Order Authorizing Use of Pen Register, 538 F2d 956; United States v New York Tel. Co., 434 US 159; United States v Miller, 425 US 435.) III. The gross prosecutorial overreaching permeating the previous prosecution of this appellant barred his reprosecution under the double jeopardy and due process clauses of the State and Federal Constitutions. (United States v Dinitz, 424 US 600; Arizona v Washington, 434 US 497; United States v Perez, 22 US 579.) IV. The outrageous prosecutorial misconduct manifested throughout all the proceedings below warranted dismissal of the indictment under the due process clause of the State and Federal Constitutions. (People v Isaacson, 44 NY2d 511; Matter of Heisler v Hynes, 42 NY 250; Matter of Hynes v Moskowitz, 44 NY2d 383; People v Arocho, 85 Misc 2d 116; Weeks v United States, 232 US 383; Mapp v Ohio, 367 US 643; Elkins v United States, 364 US 206; Terry v Ohio, 392 US 1; Olmstead v United States, 277 US 438.)

      Patrick Henry, District Attorney (Charles M. Newall of counsel), for respondent.
    I. Appellant waived his right to challenge the constitutionality of section 190.42 of the Penal Law and, alternatively, the statute is constitutional. (People v Thomas, 74 AD2d 317; People v La Ruffa, 40 AD2d 1022, 34 NY2d 242; People v Hall, 48 NY2d 927; People v Harper, 37 NY2d 96; People v Iannone, 45 NY2d 589; People v Case, 42 NY2d 98; People v Baranello, 24 AD2d 637; People v Fitzgerald, 45 NY2d 574, 70 AD2d 955, 101 Misc 2d 712; United States v Chestnut, 533 F2d 40, 429 US 829; People v Broadie, 37 NY2d 100; People v Jackson, 76 Misc 2d 872, 36 NY2d 726.) II. The trial court properly denied the motion to suppress the evidence “seized” since appellant had neither cognizable Fourth or Fifth Amendment rights in the evidence nor standing to contest evidence taken from a third party. (Berger v New York, 388 US 41; United States v Miller, 425 US 435; Smith v Maryland, 442 US 735; United States v Barter, 492 F2d 150; United States v Kohne, 347 F Supp 1178; People v Elwell, 50 NY2d 231; Cooper v Morin, 49 NY2d 69; People v Hobson, 39 NY2d 479; Matter of Cappetta v Santucci, 42 NY2d 1066.) III. The retrial of appellant is not barred by the double jeopardy clauses of the Federal and State Constitutions. (United States v Scott, 437 US 82; Arizona v Washington, 434 US 497; United States v Jorn, 400 US 470; Lee v United States, 432 US 23; United States v Dinitz, 424 US 600; People v Key, 45 NY2d 111; Mitchell v Smith, 633 F2d 1009; Matter of De Canzio v Kennedy, 67 AD2d 111; People v Catalano, 101 Misc 2d 436.) IV. Any errors committed by the prosecutor did not amount to a violation of appellant’s right to due process requiring a dismissal of the indictment. (People v Isaacson, 44 NY2d 511; People v Pomerantz, 46 NY2d 240; People v Tyler, 62 AD2d 136, 46 NY2d 251; People v Arocho, 85 Misc 2d 116; People v Boulet, 88 Misc 2d 353; People v Anderson, 97 Misc 2d 408.)

      Robert Abrams, Attorney-General {Lew A. Millenbach and Shirley Adelson Siegel of counsel),
    in his statutory capacity under section 71 of the Executive Law. Section 190.42 of the Penal Law is not unconstitutionally vague and overbroad. (Patterson v University of State of N. Y., 14 NY2d 432; Matter of Van Berkel v Power, 16 NY2d 37; People v Pagnotta, 25 NY2d 333; People v Byron, 17 NY2d 64; United States v Petrillo, 332 US 1; People v Klose, 18 NY2d 141; People v Illardo, 48 NY2d 408; People v Cruz, 48 NY2d 419.)
   OPINION OF THE COURT

Jones, J.

Defendant’s conditional plea of guilty to criminal usury in the second degree under section 190.40 of the Penal Law having been premised on an ineffectual assurance of the prosecutor, approved by the court, that, notwithstanding his plea, defendant could reserve his right to appellate review with respect to his contentions that section 190.42 of the Penal Law (criminal usury in the first degree) was unconstitutional and that the indictments should be dismissed for preindictment prosecutorial misconduct, defendant should be permitted to withdraw his plea and his conviction based thereon should accordingly be vacated. Additionally, there is no merit to defendant’s further contentions that his motion to suppress certain telephone toll-billing records was improperly denied or that his retrial is barred under constitutional double jeopardy principles.

Defendant was charged in two indictments with 12 counts of criminal usury in the first degree under section 190.42 of the Penal Law. He made an omnibus motion and then a supplemental motion in which he sought, inter alia, suppression of toll-billing records of his home telephone number and of the telephone number of Cecilia De Witt, a friend whose telephone he used to make and receive calls, and dismissal of the indictments on the ground that section 190.42 is unconstitutionally vague and overbroad. His motions in these respects were denied, and, on renewal of the motion to declare the statute unconstitutional, the court again denied the motion to dismiss. A further pretrial motion to dismiss the indictments on the ground of preindictment prosecutorial misconduct was also denied.

The action proceeded to trial which ended when the trial court granted defendant’s motion for a mistrial based on prosecutorial improprieties in the course of the summation for the People.

Defendant then brought a proceeding under CPLR article 78 to prohibit a second trial on double jeopardy grounds. The relief sought was denied on the merits and the proceeding dismissed at the Appellate Division. Defendant appealed as, of right on constitutional grounds, but we granted the People’s motion to dismiss the appeal on the ground that no substantial constitutional question was directly involved (48 NY2d 974).

Thereafter defendant pleaded guilty to a single count of the crime of criminal usury in the second degree under section 190.40 of the Penal Law in satisfaction of all the counts in the two indictments. As part of his plea, with the express consent of the prosecutor and approval of the court, defendant explicitly reserved the right to appeal with respect to four rulings: denial of his motion to dismiss the indictment on the ground that section 190.42 of the Penal Law is unconstitutional; denial of his motion to suppress the toll-billing records of his home telephone and that of his friend; denial of his motion to dismiss the indictment on the ground of preindictment prosecutorial misconduct, and denial of his application to dismiss the indictment on constitutional double jeopardy grounds.

On appeal the Appellate Division affirmed the judgment of conviction of criminal usury in the second degree, without opinion (79 AD2d 686).

We now reverse the order of the Appellate Division, hold the purported reservation of rights to appeal ineffectual, vacate the plea, and remit the matter to the trial court for further proceedings on the indictments.

At the threshold we focus our attention on the reservation by defendant of his right to appeal with respect to the four stipulated rulings on which his plea was conditioned. We observe that with respect to two of such rulings no such reservation was required. The right to appellate review of the denial of his suppression motion is statutorily preserved to defendant (CPL 710.70, subd 2), and that right is not diluted by what otherwise might be an ineffective attempt at preservation, an attempt which in view of the express statutory provision should be deemed immaterial surplusage. Similarly, but in this instance in consequence of controlling decisional law, the constitutional right not to be subject for the same offense to be twice put in jeopardy (US Const, 5th Amdt; NY Const, Art I, § 6) is not waived or forfeited by a guilty plea (Menna v New York, 423 US 61). Again, this principle is not affected by an unnecessary attempt at explicit preservation.

We turn then to the other two rulings as to which defendant sought to preserve his right to appellate review, notwithstanding his guilty plea. Reservation of such right with respect to the denial of his motion to dismiss the indictments on the ground of preindictment prosecutorial misconduct is precluded under the principles of forfeiture of the right to appellate review explicated in our recent decision in People v Thomas (53 NY2d 338). It is true that the precise issue sought to be preserved in Thomas was the legal sufficiency of the evidence to sustain the charge against the defendant; we held appellate challenge on that ground to be inconsistent with defendant’s admission, explicit in his guilty plea, that he had committed the crime with which he was charged. Similarly, and perhaps even more evidently, where defendant has by his plea admitted commission of the crime with which he was charged, his plea renders irrelevant his contention that the criminal proceedings preliminary to trial were infected with impropriety and error; his conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial (People v Lynn, 28 NY2d 196, 201). The rationale and objective of appellate reversal of a trial conviction because of misconduct on the part of a prosecutor is not to discipline or punish the prosecutor but to protect the rights of the defendant and to assure that his conviction has not been accomplished by impermissible means. This rationale and objective would not be served by the vacatur of a conviction based on the defendant’s plea of guilty.

A defendant’s attempt by an explicitly conditional plea to reserve a right to contest the constitutionality of the statute under which he was convicted might not yield to the sáme analysis. In this case, however, we have no occasion to address or resolve that issue. Here defendant’s conviction was of criminal usury in the second degree under section 190.40. He raises no challenge to the constitutionality of that section. Rather, he seeks by the device of his conditional plea to attack the constitutionality of another statute, section 190.42, defining criminal usury in the first degree, the statute under which he was indicted, but which is wholly irrelevant to his present conviction. Accordingly, he now has no standing to raise any question with respect to forfeiture of his right to appellate review of the constitutionality of section 190.42. To the extent that we now decline to give effect to the bargain made by defendant that notwithstanding his plea he could nonetheless contest the constitutionality of section 190.42, the proper remedy — which we accord him — is to permit him to withdraw the plea based on what has proved to be a false assurance, not to grant specific performance of the plea bargain (cf. People v Selikoff, 35 NY2d 227, 238-239).

The assurance on which defendant’s plea was predicated having been held to be ineffectual to preserve his right of appeal, he is entitled, if he wishes, to withdraw his plea of guilty (People v Thomas, 53 NY2d 338, 344, supra). On oral argument, defendant’s counsel stated that in such event defendant would wish to exercise that right. Accordingly, defendant should be permitted to withdraw his plea, in which case, of course, his conviction must be vacated and the case remitted for further proceedings on the two indictments.

Inasmuch as the case is to be remitted for further proceedings it is appropriate to address defendant’s contentions of error with respect to the two issues to which he is entitled to appellate review irrespective of the conditional plea and which will unquestionably be raised again in such further proceedings. We refer, of course, to his contentions with respect to suppression of the telephone toll-billing records and to his claim that constitutional double jeopardy principles bar his retrial.

There is no merit to his arguments that the telephone toll-billing records should have been suppressed. Defendant had no legitimate expectation of privacy in the records maintained by the telephone company with respect to either his own telephone or that of his friend, and their release., to the District Attorney of Suffolk County worked no violatioti of defendant’s right to be free from unreasonable searches and seizures under the Fourth Amendment to the Federal Constitution (cf. United States v Miller, 425 US 435 [bank records]; and Smith v Maryland, 442 US 735 [data collected by use of a “pen register”]). We decline defendant’s invitation to establish a more restrictive standard under the provisions of section 12 of article I of the New York State Constitution, concluding that there is no sufficient reason for any such differentiation (see contra, People v Blair, 25 Cal 3d 640; Burrows v Superior Ct., 13 Cal 3d 238).

Next, defendant claims that the toll-billing records were obtained in violation of his constitutional privilege against self incrimination. There is no merit to this assertion inasmuch as the records were those of a third party, not defendant’s, were obtained from the third party and not defendant, and entailed no testimonial compulsion against defendant (Fisher v United States, 425 US 391).

In the third place, defendant claims that the toll-billing records should have been suppressed because they were obtained pursuant to subpoenas which were null and void inasmuch as they purported to be issued by a Grand Jury which was not convened, organized or sworn until more than two weeks after the subpoenas were issued. Even if it be assumed that the subpoenas in question were indeed null and void, whatever may have been the right of the telephone company to challenge their validity, defendant, having no possessory or proprietary interest in the records, has no standing to do so (cf. People v Ponder, 54 NY2d 160).

Finally, defendant claims that the records should have been suppressed inasmuch as they were sought for prosecution under what he asserts was an unconstitutional statute, viz., section 190.42 of the Penal Law. This ground for suppression being raised for the first time in our court and not having been raised below in support of the motion to suppress is not now available to defendant (CPL 470.35, subd 1; cf. People v Tutt, 38 NY2d 1011).

As to the other issue which was not forfeited by the guilty plea, defendant’s contention that constitutional double jeopardy principles preclude his retrial, defendant is independently foreclosed from raising that issue on this appeal under the doctrine of res judicata. Case law preserving defendant’s right to seek appellate review accords him only a procedural opportunity; it does not assure him success on the merits of his contention. In the present instance defendant’s constitutional double jeopardy claims were fully litigated in his article 78 proceeding in the nature of prohibition. The final determination in that proceeding adverse to his present contentions (48 NY2d 974) now constitutes a res judicata bar to any further judicial consideration of his contentions.

For the reasons stated, the order of the Appellate Division should be reversed, defendant’s conviction vacated, his plea withdrawn, and the action remitted to Supreme Court, for further proceedings on the indictments.

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

Order reversed, conviction vacated, plea withdrawn and case remitted to Supreme Court, Suffolk County, for further proceedings on the indictments.

       A “pen register” is a mechanical device that records the number dialed on a telephone by monitoring the electrical impulses caused as the dial on the telephone is released. It does not overhear oral communication and does not indicate whether calls are actually completed (United States v New York Tel. Co., 434 US 159, 161, n 1).


text:
    In the Matter of Larry W., a Person Alleged to be a Juvenile Delinquent, Respondent. Corporation Counsel of City of New York, Appellant. In the Matter of Glenford S., a Person Alleged to be a Juvenile Delinquent, Respondent. District Attorney of Kings County, Appellant.
    Argued January 14, 1982;
    decided February 25, 1982

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Trudi Mara Schleifer and Francis F. Caputo of counsel), for appellant in the first above-entitled proceeding.
    The Family Court correctly held that neither the applicable statutes nor the juvenile’s right to equal protection of the laws requires immediate disclosure to the juvenile of the minutes of a secret Grand Jury proceeding as a matter of course in every juvenile offender proceeding removed to Family Court, and, therefore, the decision of the Family Court should be reinstated and the motion denied in all respects. (Matter of Wolfe v Berman, 40 AD2d 869; Matter of Gary S., 100 Misc 2d 854; Albano v Kirby, 36 NY2d 526;
      People v Di Napoli, 27 NY2d 229; Matter of Jaffe v Scheinman, 47 NY2d 188.)

      Eugene Gold, District Attorney (Lois M. Raff of counsel), for appellant in the second above-entitled proceeding.
    In the absence of any explicit legislative authorization for disclosure of Grand Jury testimony, the court below erred in requiring that all respondents in actions removed to Family Court after indictment be immediately served with a complete copy of the Grand Jury minutes. (Matter of Jaffe v Scheinman, 47 NY2d 188; Matter of Windsor Park Nursing Home v Hynes, 42 NY2d 243; Matter of Heisler v Hynes, 42 NY2d 250; People v Gray, 41 AD2d 125; Abood v Hospital Ambulance Serv., 30 NY2d 295; Matter of Hogan v Culkin, 18 NY2d 330; Matter of Avien, Inc., 390 F Supp 1335, 532 F2d 273; Matter of Perry v Zarcone, 98 Misc 2d 899; Matter of Gold v Quinones, 37 AD2d 618; Matter of Wolfe v Berman, 40 AD2d 869.)

      Wendy Sue Lauring, Lenore Gittis, Helen Neuborne and Rhea Friedman for respondent in the first above-entitled proceeding. Wendy Sue Lauring, Lenore Gittis, Helen Neuborne and J. J. Borer for respondent in the second above-entitled proceeding.
    The court below correctly held that the plain language of CPL 725.05 (subd 8) and subdivision 3 of section 731 of the Family Court Act require that the Grand Jury minutes be served on respondent as part of the petition in a removed juvenile offender case. (Matter of Vega v Bell, 47 NY2d 543; Nettleton Co. v Diamond, 27 NY2d 182; People v Woman’s Christian Assn. of Jamestown, 56 AD2d 101, 44 NY2d 466; People v Lethenia, 87 Misc 2d 713; Matter of Martin D., 100 Misc 2d 339; People ex rel. Guggenheim v Mucci, 32 NY2d 307; Matter of Quinton A., 49 NY2d 328; Matter of Jaffe v Scheinman, 47 NY2d 188; People v Copicotto, 50 NY2d 222.)
   OPINION OF THE COURT

Jones, J.

The respondent in a juvenile delinquency proceeding originated by removal to Family Court is not automatically entitled to inspect or to receive a copy of the minutes of any Grand Jury proceeding which must be transferred to Family Court when the case is removed.

In Matter of Larry W. a presentation was made to the Grand Jury concerning the alleged participation of respondent and Robert Pringle, an adult, in the robbery of Jannie Nicholls on December 27, 1979. Pursuant to CPL 190.71 the Grand Jury requested that the matter pending against respondent be removed to Family Court and accused respondent of committing acts which, if committed by an adult, would constitute the crime of robbery in the second degree. Supreme Court made and filed an implementing order of removal, and the matter was transferred to Family Court, Kings County. Following arraignment, respondent by his Law Guardian moved orally to dismiss the petition for lack of jurisdiction on the ground that the forwarding court in making the transfer to Family Court had failed to forward a copy of the Grand Jury minutes, and further to inspect the Grand Jury minutes, a copy of which was then in the possession of the Corporation Counsel. Family Court denied both motions, and on application by respondent the Appellate Division granted permission to appeal, limited to so much of the Family Court order as denied the motion to inspect or obtain a copy of the minutes of the Grand Jury. On the appeal the Appellate Division reversed the order of Family Court and granted respondent’s motion to obtain a copy of the Grand Jury minutes (79 AD2d 991) and then granted leave to the City of New York to appeal to our court on a certified question.

In Matter of Glenford S. a felony complaint was filed in Criminal Court, Kings County, charging respondent with robbery in the first degree, alleging that on April 25,1979 respondent, acting in concert with four other persons, forcibly took money and property from one Thomas Rosario by threatening him with a handgun. Following a preliminary hearing respondent was held for action of the Grand Jury. An indictment was filed charging respondent with two counts of robbery in the first degree. Respondent’s case was thereafter removed to Family Court with the consent of the District Attorney, pursuant to CPL 210.43. On respondent’s first appearance in Family Court his Law Guardian moved to have a copy of the Grand Jury minutes served on him and in the alternative to dismiss the petition as jurisdictionally defective for failure to include a copy of the Grand Jury minutes. Family Court denied both motions. In this case, too, on respondent’s application, the Appellate Division granted permission to appeal but again only with respect to the denial of respondent’s motion to cause copies of the Grand Jury minutes to be served on him. On the appeal the Appellate Division reversed the order of Family Court and granted respondent’s motion for copies of the Grand Jury minutes (78 AD2d 350) and similarly then granted leave to the District Attorney of Kings County to appeal to our court on a certified question.

The determinations at the Appellate Division that respondents were entitled to receive copies of the minutes of the Grand Jury were based on that court’s reading of CPL 725.05 (subd 8) with subdivision 3 of section 731 of the Family Court Act. Those subdivisions provide as follows:

CPL "725.05 Order of removal.

“8. The order of removal must direct that all of the pleadings and proceedings in the action, or a certified copy of same be transferred to the designated family court and be delivered to and filed with the clerk of that court. For the purposes of this subdivision the term ‘pleadings and proceedings’ includes the minutes of any hearing inquiry or trial held in the action, the minutes of any grand jury proceeding and the minutes of any plea accepted and entered.”

“§ 731 [Family Ct Act] Originating juvenile delinquency proceeding

“3. When an order of removal pursuant to article seven hundred twenty-five of the criminal procedure law is filed with the clerk of the court such order and the pleadings and proceedings transferred with it shall be and shall be deemed to be a petition filed pursuant to subdivision one of this section containing all of the allegations therein required notwithstanding that such allegations may not be set forth in the manner therein prescribed. Where the order or the grand jury request annexed to the order specifies an act that is a designated felony act, the clerk shall annex to the order a sufficient statement and marking to make it a ‘designated felony act petition’.” We agree with the Appellate Division that the Legislature has unmistakably prescribed that, for the purposes of CPL 725.05 (subd 8) which specifies what must be transferred under an order of removal, the “pleadings and proceedings” there mandated to be transferred to the Family Court shall include “the minutes of any grand jury proceeding”, and that under subdivision 3 of section 731 of the Family Court Act, dealing with the origination of juvenile delinquency proceedings, the “pleadings and proceedings” transferred to the Family Court pursuant to the order of removal “shall be and shall be deemed to be a petition”. At this point, however, we depart from the analysis and reasoning of the Appellate Division.

The determination of the issue presented on this appeal turns not on what comprises the “petition” in these cases; the statutory provisions quoted make it clear that any Grand Jury minutes are a part of the petition. The critical question is whether respondents were entitled to copies of the entires delinquency petitions, including the Grand Jury minutes. We conclude that they were not automatically entitled to a copy of the Grand Jury minutes under the statutory provisions cited.

First, we look to the sections of the Family Court Act for statutory provisions relating to respondents’ entitlement to receive copies of the petitions. It is somewhat surprising, perhaps, but there is no provision of the Family Court Act in this regard. Counsel for respondents invite our attention only to sections 736 and 738 (and we have found no other pertinent provision). Section 736 is entitled, “Issuance of summons”, is addressed to the issuance and service of a summons, and at most authorizes but does not command the issuance of a copy of the petition. Section 738 relates to the issuance of a warrant and has nothing to do with service of a copy of the petition.

On initial consideration one might be disposed to assume without question that, of course, a respondent would be entitled to receive a copy of the delinquency petition. That might well be true in the case of a petition filed under subdivision 1 of section 731 pursuant to which a single instrument may initiate the proceeding. As to proceedings initiated by removal, however, subdivision 3 makes provision for what is to be deemed to be the procedural equivalent of a petition, consisting, pursuant to the cited statutory provisions, of the order of removal and, in some instances, of other documents as well. In any event, absent a statutory command that a copy of the entire petition shall be served on or otherwise be made available to a respondent, the latter’s right thereto would appear to depend on constitutional due process rights to notice (cf. Matter of Gault, 387 US 1, 33). Measured by this standard, which we hold to be applicable, respondents in juvenile delinquency proceedings are not necessarily entitled to copies of the Grand Jury minutes; due process entitlement to notice, except possibly in a most unusual case, can be fully met by service of a copy of the order of removal and of other documents in the petition file, if need be, without recourse to Grand Jury minutes. Respondents here, relying only on the statutory provisions cited, do not contend in either of the cases now before us that the papers furnished to them failed to provide the notice to which they were Constitutionally entitled and that they were accordingly entitled to copies of the Grand Jury minutes as a matter of constitutional right; indeed there is nothing in the record in either case on which such a contention could be premised.

To read the statutes cited as mandating by implication or extension that a respondent be furnished with a copy of the Grand Jury minutes would run counter to the longstanding and fundamental doctrine of the secrecy of Grand Jury minutes. The articulation of this doctrine, codifying the common law, is now to be found in CPL 190.25 (subd 4) (cf. Penal Law, § 215.70 [unlawful Grand Jury disclosure, a class E felony]; Judiciary Law, § 325 [restricting disclosure by a Grand Jury stenographer]). Disclosure is permissible only if authorized by statute or directed by court order. Here neither of the statutory provisions on which respondents rely addresses the issue of disclosure, and our attention is invited to no legislative history which suggests that in enacting these provisions the Legislature intended to authorize any disclosure of Grand Jury proceedings. We have no doubt that the Legislature could have directed that in removal cases a copy of the minutes of any Grand Jury proceeding be furnished to the respondent; it is determinative in the two cases now before us that the Legislature made no such statutory direction.

The evident purpose of requiring the transfer of any Grand Jury minutes along with the rest of the file on removal of a case to the Family Court, in addition to the obvious advantages of maintaining a single integrated file, was to place such minutes within the jurisdiction of the Family Court, thereby making them available to facilitate compliance with any pertinent statutory mandate (e.g., CPL 240.45), in the event of a motion to inspect the Grand Jury minutes (CPL 210.30), or should the Family Court Judge in an individual case determine for other reasons that there should be a disclosure of the minutes.

For the reasons stated, in each case the order of the Appellate Division should be reversed, without costs, the order of Family Court denying respondent’s motion reinstated, and the certified question answered in the negative.

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

In each case: Order reversed, without costs, the order of Family Court, Kings County, reinstated, and the question certified answered in the negative.

      . Thus, in neither of the cases now before us is the issue of the jurisdictional sufficiency of the petition without copies of the Grand Jury minutes presented for our review.

      . Compare CPL 170.10 (subd 2) and 210.15 (subd 1) which expressly require that an adult defendant be served with a copy of the information or the indictment and sections 765 and 774 of the Family Court Act, which mandate prompt service of copies of other types of Family Court petitions. Although section 737 of the Family Court Act prescribes the manner in which a petition shall be served, it does not mandate such service (cf. CPLR 307-312).

      . Subdivision 1 of section 731 of the Family Court Act:
      “1. A proceeding to adjudicate a person a juvenile delinquent is originated by the filing of a petition, alleging:
      “(a) the respondent did any act which, if done by an adult, would constitute a crime and specifying the act and the time and place of its commission;
      “(b) the respondent was a person under sixteen years of age at the time of the alleged act; and
      “(c) the respondent requires supervision, treatment, or confinement.”

      . (E.g., CPL 240.20, subd 1, par [b] [according a defendant the right to his own Grand Jury testimony and that of his codefendant if they are tried together]; 240.45, subd 1 [requiring a prosecutor to make available to the defense, after the jury has been sworn and before the prosecutor’s opening statement, the Grand Jury testimony of prosecution witnesses].)

      . (E.g., CPL 210.30 [motion to inspect Grand Jury minutes].)