author: Kaye, J.

text:
    In the Matter of Pace Photographers, Ltd., Respondent. Herman Rosen, Appellant.
    Argued April 26,1988;
    decided June 2, 1988

      POINTS OF COUNSEL

      Andrew M. Schnier for appellant.
    I. Trial Term failed to correctly determine the "fair value” of appellant’s stock for redemption pursuant to Business Corporation Law § 1118. (Matter of Kemp & Beatley [Gardstein], 64 NY2d 63; Matter of Blake v Blake Agency, 107 AD2d 139; Matter of Fleischer, 107 AD2d 97; Matter of Barry One Hour Photo Process, 111 Misc 2d 559; Matter of Sands Point Land Co. v Rossmoore, 43 Misc 2d 368.) II. Trial Term erred in failing to provide appellant with a hearing on the issues of oppression and misconduct. (Matter of Rosen [Hofteller Enters.] 102 AD2d 855; Matter of Ricci v First Time Around, 112 AD2d 794; Matter of Allchester Dev. Co. [Posner — Katz] 34 AD2d 660.) III. Trial Term should have granted appellant’s motion for renewal and reconsideration, or at least conducted a hearing thereon. (McRory v Craft Architectural Metals Corp., 112 AD2d 358; Patterson v Town of Hempstead, 104 AD2d 975; Webb & Knapp v United CigarWhelan Stores Corp., 276 App Div 583; Olean Urban Renewal Agency v Herman, 101 AD2d 712.) IV. By breaching the shareholders’ agreement, respondents waived any right to rely upon it. (McGrath v Hilding, 41 NY2d 625.) V. Imposition of the restrictive covenant upon appellant is unreasonable and constitutes a denial of due process. (Purchasing Assocs. v Weitz, 13 NY2d 267; Matter of Sprinzen [Nomberg] 46 NY2d 623; Mohawk Maintenance Co. v Kessler, 52 NY2d 276; Meteor Indus. v Metalloy Indus., 104 AD2d 440.)

      Eli Feit and Stuart A. Blander for respondent.
    I. The shareholders’ agreement provides the exclusive means whereby Rosen may obtain the cash value of his equity investment in Pace. (Matter of Kemp & Beatley [Gardstein] 64 NY2d 63; Matter of Levy, 79 AD2d 684; Matter of Moskowitz v Surrey Sleep Prods., 30 AD2d 818; Matter of Siegel v 141 Bowery Corp., 80 Misc 2d 255, 51 AD2d 209; Matter of Stuart Becker, Ltd. v Horowitz, 94 Misc 2d 766; Matter of Harris [Daniels Agency] 118 AD2d 646; Matter of Doniger v Rye Psychiatric Hosp. Center, 122 AD2d 873; Da Silva v Musso, 53 NY2d 543; Horowitz v Sprague, 440 F Supp 1346; Matter of Herzog, 301 NY 127.) II. Rosen is not relieved of his "clear and unambiguous” obligation to sell his shares pursuant to the shareholders’ agreement by his allegations of "oppression” and "breach of contract”. (Zion v Kurtz, 50 NY2d 92; Adler v Svingos, 80 AD2d 764; Mintz v Dallek & Zaret Assocs., 120 AD2d 654; Callanan v Keeseville Ausable Chasm & Lake Champlain R. R. Co., 199 NY 268; Fink v Friedman, 78 Misc 2d 429; Babylon Assocs. v County of Suffolk, 101 AD2d 207; O’Herron v Southern Tier Stores, 9 AD2d 568; Canfield v Reynolds, 631 F2d 169; Direction Assocs. v Programming & Sys., 412 F Supp 714.) III. Even if Rosen is not precluded from petitioning the dissolution, "fair value” of his shares must be determined in accord with the shareholders’ agreement. (Matter of Kemp & Beatley [Gardstein], 64 NY2d 63.) IV. Rosen’s bad faith and injurious conduct precludes him from seeking dissolution of Pace under Business Corporation Law § 1104-a. (Matter of Gunzberg v Art-Lloyd Metal Prods. Corp., 112 AD2d 423.) V. No evidentiary hearing was required under Business Corporation Law § 1109. (Matter of Probe Personnel Consultants [Petters], 117 Misc 2d 21; Matter of Gordon & Weiss, 32 AD2d 279; Matter of Garay v Langer, 37 AD2d 545; Rotuba Extruders v Ceppos, 46 NY2d 223; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285.) VI. The Supreme Court correctly denied petitioner’s motion for renewal and reconsideration. (Brann v City of New York, 96 AD2d 923; 300 W. Realty Co. v City of New York, 99 AD2d 708; Smith v Smith, 97 AD2d 932; Spiro v Spiro, 91 AD2d 1103; Brussel v Ruxton Hotel Assocs., 91 AD2d 919; McRory v Craft Architectural Metals Corp., 112 AD2d 358; Olean Urban Renewal Agency v Herman, 101 AD2d 712; ESA v New York Prop. Ins. Underwriting Assn., 89 AD2d 865.) VII. The courts below correctly enforced the "restrictive covenant” in the shareholders’ agreement. (Purchasing Assocs. v Weitz, 13 NY2d 267; Mohawk Maintenance Co. v Kessler, 52 NY2d 276; Reed, Roberts Assocs. v Strauman, 40 NY2d 303; Brintec Corp. v AKZO, N. V., 129 AD2d 447; Meteor Indus. v Metalloy Indus., 104 AD2d 440; Town Line Repairs v Anderson, 90 AD2d 517.)
   OPINION OF THE COURT

Kaye, J.

In a close corporation, the terms of a, shareholders’ agreement governing a voluntary sale of stock by a shareholder to the corporation do not dictate the "fair value” of a minority interest under section 1118 of the Business Corporation Law. The Appellate Division order directing a sale on the terms fixed by the shareholders’ agreement at issue here, with no hearing and no evidence on valuation, should therefore be reversed and the case remitted to Supreme Court for a determination of the fair value of petitioner’s interest and other terms of the purchase by the corporation.

In the early 1960’s, petitioner cofounded a photography business that ultimately became respondent Pace Photographers, Ltd. (Pace). Over the decades, Pace grew from a basement operation to a major commercial photography studio with annual sales exceeding a million dollars. In 1975, the business was incorporated and, on November 10, 1982 — on the occasion of taking in a fifth shareholder — a shareholders’ agreement was signed. Under that agreement, petitioner— who owned 26% of the company’s 100 outstanding shares— became president.

The agreement committed the five shareholders to a period of continuity by providing that none of the parties "shall sell, hypothecate, transfer, encumber or otherwise dispose of any of his shares of the Corporation * * * without the written consent of all the parties hereto for a period of five (5) years from the date of this Agreement” (para 12). A sale might be made within those first five years, but only to the other shareholders, at a deep discount: "Notwithstanding the provisions of this paragraph in the event a stockholder desires to sell his shares of the stock to the other stockholders within the first five years of this Agreement, he shall not be restricted, provided however, the price to be paid shall be one-half of the formula as set forth in paragraph 15” (para 12 [e]).

In paragraph 14 of the shareholders’ agreement, the parties stipulated that because the actual value of a stock interest in Pace was difficult to ascertain, they would agree upon "the value of each party’s stock interest in the Corporation for the purpose of determining the purchase price to be paid for the interest of any party hereto who is retiring or withdrawing from the business”. Paragraph 15 specified that, in schedule A, a value would be fixed for the entire stock interest of the company, and that value would be redetermined at the end of every four-month period. Until a new value was entered in schedule A, however, the last stated value would control. Schedule A in the November 10, 1982 agreement set the total value of Pace at $400,000; that value was never updated. The final term of the shareholders’ agreement relevant to the present dispute is paragraph 18: "Upon the sale of shares as herein provided,” the selling stockholder for a period of three years from the date of the sale would not engage in, or in any manner become interested in, any business, trade or occupation similar to the one conducted by Pace within a 50-mile radius of the company’s then office in Brooklyn.

Barely three years after the shareholders’ agreement was signed, a rift developed between petitioner and the other four shareholders, culminating on October 7, 1986 in petitioner’s written offer to buy them out for $440,000. Of that amount, petitioner offered $175,000 to each of the other two shareholders whose stockholdings matched his. They refused.

One month later, on November 13, 1986, petitioner commenced a proceeding to compel judicial dissolution of Pace pursuant to Business Corporation Law § 1104-a. He alleged that the other four shareholders had improperly taken control of Pace, and that they were guilty of illegal, fraudulent and oppressive action toward him, and guilty of waste, mismanagement and diversion of corporate assets. At a shareholders’ meeting November 17, 1986, petitioner was replaced as president and removed as a director. By letter dated November 21, 1986, respondent elected to purchase petitioner’s shares as follows:

"We have received a copy of your Petition for Dissolution under Section 1104-A of the Business Corporation Law of the State of New York. Pace construes your action as an offer to sell your 26-% shares of common stock of Pace ('the Shares’). As you know, such an offer is governed by an Agreement between the undersigned and yourself, dated November 10, 1982 ('the Agreement’) * * *

"Pace hereby elects to purchase the Shares under the terms and provisions of the Agreement, or in the alternative under Section 1118 of the Business Corporation Law, at its 'fair value’, which the Agreement establishes as being fifty (50%) percent of the amount set forth in Paragraph 15 of the Agreement. Accordingly, under the terms of the Agreement or under Section 1118 of the Business Corporation Law, Pace elects to purchase all of your shares for the sum of $53,340.00.

"This election to purchase is without prejudice to the rights of the undersigned pursuant to the Agreement.”

On December 15, 1986 — some three weeks after the election to buy petitioner’s shares — respondent both answered the petition and made a cross motion. In its answer, respondent denied all impropriety, counterclaimed for damages caused by petitioner’s own wrongdoing, and sought a declaration that petitioner was bound by the valuation established in the agreement — a price of $53,340 for his shares; alternatively, respondent requested a stay pending the determination of fair value under section 1118; and it sought enforcement of the restrictive covenant contained in the agreement. In its cross motion, respondent requested dismissal of the petition on the ground that the buy-out provision of the shareholders’ agreement was the exclusive method by which petitioner could dispose of his shares — at a price of $53,340; alternatively, pursuant to Business Corporation Law § 1118, respondent sought a stay of the dissolution proceeding and a determination of the fair value of petitioner’s shares in accordance with the shareholders’ agreement. The cross motion was supported by an extensive affidavit detailing petitioner’s wrongdoing, including promotion of his private photography business, inattention to the business of Pace, and sexual harassment of employees, and charging that the dissolution proceeding was merely an effort to circumvent the buy-out provisions of the agreement as well as the restrictive covenant.

Supreme Court denied the petition for dissolution and granted the cross motion, finding from the motion papers alone that there was no proof of the alleged misconduct toward petitioner; that the petitioner himself was the wrongdoer, having abandoned his obligations to respondent and embarked on a course of activity against its economic interests; and that respondent’s actions were the result of petitioner’s bad faith, injurious conduct. Recognizing that respondent had elected to purchase petitioner’s stock pursuant to Business Corporation Law § 1118, and to have the court fix the fair value of petitioner’s shares as of the day prior to filing the petition, the court further concluded that the fair value of petitioner’s stock was that agreed to in the shareholders’ agreement — $53,340—to be paid over a five-year period in accordance with a prior provision of the agreement (para 12 [d]). Finally, in the judgment (though not in the decision), the court held petitioner bound by the restrictive covenant.

The Appellate Division affirmed as to fair value, without reaching the issue of who wronged whom. In light of respondent’s election under Business Corporation Law § 1118, the court perceived that the value of petitioner’s shares was the sole remaining question in the case; respondent’s election made it unnecessary to conduct any hearing on petitioner’s allegations of misconduct. Noting that petitioner protested the fairness of the valuation under the agreement, the court nonetheless agreed with the trial court that petitioner should be bound by the unambiguous value fixed in the shareholders’ agreement, which had been voluntarily entered into by all shareholders. The court, moreover, found that it was proper to enforce the restrictive covenant, in that it was reasonable in scope and duration. We now reverse.

Threshold Issues Concerning Respondent’s Election

Prior to 1979, minority shareholders in close corporations who suffered abuse at the hands of the majority lacked the options available to business partners and shareholders in public corporations to extricate the value of their investments. To preserve and protect the interests of minority shareholders in such situations, the Legislature in 1979 provided a mechanism — a petition for dissolution — by which holders of at least 20% of the outstanding shares of a corporation whose stock is not traded on a securities market could salvage the value of their investments. Section 1104-a of the Business Corporation Law sets forth two possible grounds for such a petition: that those in control of the corporation have been guilty of illegal, fraudulent or oppressive actions toward the complaining shareholders, and that the property or assets of the corporation are being looted, wasted or diverted for noncorporate purposes by those in control.

Concomitantly, the Legislature provided a defensive mechanism for the other shareholders and the corporation, giving them an absolute right to avoid the dissolution proceedings and any possibility of the company’s liquidation by electing to purchase petitioner’s shares at their fair value and upon terms and conditions approved by the court (Business Corporation Law § 1118 [a]). Whatever the true facts regarding oppression or wrongdoing, the corporation and the remaining shareholders have the unconditioned right within 90 days of the petition (and later within the court’s discretion), to avoid the potential drain and risk of dissolution proceedings by simply offering to buy out the minority interest; the minority is protected by a court-approved determination of fair value and other terms and conditions of the purchase. (See generally, Davidian, Corporation Dissolution in New York: Liberalizing the Rights of Minority Shareholders, 56 St John’s L Rev 24 [1981].)

This appeal raises several threshold procedural questions concerning the combined operation of sections 1104-a and 1118.

The first question concerns the interplay between the factual allegations of abuse required for an 1104-a petition and the election to buy under 1118. Respondent urges that petitioner was not the victim but the perpetrator of abuse, and that he has invoked 1104-a solely to sidestep the buy-out provisions and restrictive covenant of the shareholders’ agreement. As we noted in Matter of Kemp & Beatley (Gardstein) (64 NY2d 63, 74), it would contravene the remedial purpose of the statute to permit its use by minority shareholders merely as a coercive tool. "[T]he minority shareholder whose own acts, made in bad faith and undertaken with a view toward forcing an involuntary dissolution, give rise to the complained-of oppression should be given no quarter in the statutory protection.” (Id.; see also, Matter of Dubonnet Scarfs, 105 AD2d 339, 343.) Petitioner, on the other hand, urges that the hotly disputed factual issues underlying the petition should not have been determined in this special proceeding on papers alone, but required a hearing.

Resolution of this question has been obviated by respondent’s election, one week after the petition, to buy petitioner’s shares under the agreement or, alternatively, under Business Corporation Law § 1118. That election, which respondent chose to make by letter to petitioner at the very outset of the dissolution proceeding — even before its answer, and unrelated to the fate of the petition — relieved petitioner of the need to prove the allegations underlying his petition (see, Matter of Gargano, 112 AD2d 225, 226; Matter of Cristo Bros., 97 AD2d 274, 276, affd 64 NY2d 975). As the Appellate Division noted, the trial court’s findings on the issue of wrongdoing were superfluous in light of the fact, recognized by both courts, that respondent had elected to buy petitioner’s shares pursuant to Business Corporation Law § 1118. Fixing blame is material under 1104-a, but not under 1118.

Similarly, respondent’s 1118 election makes it unnecessary for us to decide the next threshold issue raised by respondent: whether a shareholders’ agreement fixing value in and of itself precludes relief under 1104-a, because the statute provides that the court must take into account whether "liquidation of the corporation is the only feasible means whereby the petitioners may reasonably expect to obtain a fair return on their investment”. (Business Corporation Law § 1104-a [b] [1]; see also, Matter of Kemp & Beatley [Gardstein], 64 NY2d 63, 73-74, supra; Matter of Harris [Daniels Agency], 118 AD2d 646.) Upon respondent’s election, the central question in this case became one of valuation under 1118, not liquidation under 1104-a.

An 1118 election is irrevocable unless the court in its discretion determines otherwise (Business Corporation Law § 1118 [a]). Given this weighty consequence, the election should be clear and unequivocal. Here, however, respondent does not contend that its offer was hedged or conditional and therefore not an election at all (see, Matter of Barry One Hour Photo Process, 111 Misc 2d 559, 566, affd sub nom. Matter of Taines, 108 AD2d 630, appeal dismissed 66 NY2d 757, lu denied 67 NY2d 602; see also, Martin v City of Cohoes, 37 NY2d 162, 165-166). Respondent’s consistent position in this litigation undoubtedly accounts for the conclusion reached both by Supreme Court and by the Appellate Division that an election under Business Corporation Law § 1118 had in fact been made.

We therefore proceed to consider whether the value fixed in this shareholders’ agreement is alone determinative of the "fair value” of petitioner’s shares under section 1118 of the Business Corporation Law, and conclude that it is not.

Impact of the Shareholders’ Agreement on "Fair Value”

In purporting to fix the fair value of petitioner’s shares in accordance with Business Corporation Law § 1118, both the Supreme Court and the Appellate Division viewed the 1104-a petition as petitioner’s voluntary offer to sell his stock, and therefore simply applied the agreed terms for a voluntary sale. Supreme Court declared that "the fair value of the stock of the petitioner is that agreed to in Section 12 (d) of the shareholders’ agreement”. The Appellate Division, in affirming, concluded that a petitioner claiming unfairness in an agreed price must show more than a disparity between that price and current value (citing Allen v Biltmore Tissue Corp., 2 NY2d 534), and that this agreement was both voluntary and unambiguous as to terms for a buyout. Finally, the court noted that, a " 'review of the record reveals that the petitioner may obtain a fair return on his investment pursuant to the buy-out provisions of the shareholder’s agreement’ (Matter of Harris [Daniels Agency], 118 AD2d 646, 647).” (133 AD2d, at 830.) Significantly, no evidence was taken on valuation.

As an abstract matter, it may well be that shareholders can agree in advance that an 1104-a dissolution proceeding will be deemed a voluntary offer to sell, or fix "fair value” in the event of judicial dissolution, and that their agreement would be enforced (see, Matter of Doniger v Rye Psychiatric Hosp. Center, 122 AD2d 873, 877, lu denied 68 NY2d 611). Participants in business ventures are free to express their understandings in written agreements, and such consensual arrangements are generally favored and upheld by the courts. (See, e.g., Zion v Kurtz, 50 NY2d 92, 102-103; Triggs v Triggs, 46 NY2d 305, 309-310; Clark v Dodge, 269 NY 410, 415.)

But in the absence of explicit agreement a shareholders’ agreement fixing the terms of a sale voluntarily sought and desired by a shareholder does not equally control when the sale is the result of claimed majority oppression or other wrongdoing — in effect, a forced buyout (Matter of Kemp & Beatley [Gardstein] 64 NY2d 63, 75, supra; see also, Matter of Sands Point Land Co. v Rossmoore, 43 Misc 2d 368, 373). Here, the shareholders’ agreement neither provided that an 1104-a dissolution proceeding would be deemed a voluntary offer to sell, nor fixed fair value in the event of an 1118 election. The buy-out provisions were explicitly limited to the desire of any party to "sell, hypothecate, transfer, encumber or otherwise dispose of’ his shares. The only event otherwise deemed a voluntary sale was the death of a stockholder. The provisions of the shareholders’ agreement regarding buyout within the first five years, at a 50% discount, were expressly limited to the situation where "a stockholder desires to sell his shares of the stock to the other stockholders” (para 12 [e]), contemplating a voluntary sale at the convenience of and for the benefit of the selling shareholder, without regard to the inconvenience or detriment inflicted on the corporation or other shareholders. Similarly, paragraph 14 and schedule A by their terms dealt with the value of shares for shareholders "retiring or withdrawing from the business.” It is plain from these cited provisions that a sale occasioned by an 1104-a petition premised on abuse by the majority does not fall within the contemplation of this shareholders’ agreement regarding a sale of stock by a shareholder to the corporation.

We therefore conclude that the stipulated price of "one-half of the formula as set forth in paragraph 15” does not in and of itself dictate the "fair value” of petitioner’s shares under section 1118, and that it was error to impose those terms without further inquiry regarding valuation.

Section 1118 (b) directs that, when petitioner and the corporation cannot agree upon fair value, the court upon application of either party shall stay the 1104-a proceedings and determine fair value as of the day prior to the date on which the petition was filed. While respondent’s election and application stayed the 1104-a proceeding, and petitioner consented to the buyout (133 AD2d 829, 830, supra), no steps were taken to fix fair value. Value "should be determined on the basis of what a willing purchaser, in an arm’s length transaction, would offer for the corporation as an operating business, rather than as a business in the process of liquidation.” (Matter of Blake v Blake Agency, 107 AD2d 139, 146, Iv denied 65 NY2d 609.) In reaching such a determination, the court obviously may take into account the shareholders’ agreement provisions regarding value (see, Amodio v Amodio, 70 NY2d 5, 7), petitioner’s own offer to buy, the corporation’s alleged efforts to sell the business earlier, and any other pertinent evidence (see generally, Wimpfheimer and Dunn, Corporate Squeeze Out: Aspects of Valuation, 58 NYSBJ 32 [May 1986]). In this forced sale, the court’s objective will be to fix the value of the business as a going concern as of the day prior to the filing of the petition, which may be very different from the objective of a shareholders’ agreement fixing value for a voluntary sale.

Upon remittal, therefore, there should be further proceedings to fix the fair value of petitioner’s shares as of the day prior to the filing of the petition, as well as any other terms and conditions of the purchase of his shares.

The Restrictive Covenant

While respondent in its cross motion made no argument concerning the restrictive covenant, and the trial court made no mention or evaluation of it in its decision, the judgment implemented that court’s conclusion that petitioner should be strictly bound by the shareholders’ agreement. The judgment not only incorporated the precise words of paragraph 18, but also embellished the broad restrictions of the agreement by additionally applying the clause to Pace’s new principal place of business (rather than as written), by precluding petitioner’s use of the name "Pace” in any fashion, and by forbidding any interference with existing contracts or use of confidential or proprietary information of Pace, including names of customers. The Appellate Division, also holding petitioner to the letter of the shareholders’ agreement, concluded that the restrictive covenant in the agreement was reasonable in scope and duration, and it made no comment on the restrictions added by the judgment.

The restrictive covenant found in the shareholders’ agreement is, by its terms, limited to "the sale of shares of stock as herein provided”. In that the sale of petitioner’s stock is not proceeding under the shareholders’ agreement but rather pursuant to Business Corporation Law § 1118, the express covenant is literally inapplicable. Whether or not a reasonable restriction may be imposed by way of an implied covenant in connection with a sale of goodwill (see, Mohawk Maintenance Co. v Kessler, 52 NY2d 276, 284) is an open question that must first await resolution by the trial court on remittal.

Accordingly, the Appellate Division order should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

      . Under the agreement, the death of a shareholder was to be deemed a voluntary offer of sale by the legal representative of all the decedent’s stock; a separate agreement was to be concluded regarding sale to the other shareholders in the event of disability.

      . Petitioner initially made no response to respondent’s recitation of alleged improprieties. After the trial court’s decision, petitioner retained new counsel and sought reargument to submit his version of the facts, centering on the majority’s course of oppression after a confrontation in summer 1986. In a decision denying reargument, the court dismissed petitioner’s facts as inconsequential.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Thaxton Hamlin, Appellant. The People of the State of New York, Respondent, v Kurtis A. Brown, Appellant.
    Argued April 25, 1988;
    decided June 2, 1988

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (Howard K. Broder of counsel), for appellant in the first above-entitled action.
    I. The trial court erred in refusing to instruct the jury that the diagram was a statement subject to involuntariness constraints. The trial court also erred in refusing to instruct the jury that physical evidence found as a matter of fact to be the "fruit” of involuntarily obtained statements should not be considered. Because the jury may have found the primary statements to have been involuntarily obtained and still have convicted based upon the diagram and "fruit” evidence, a new trial is required. (Jackson v Denno, 378 US 368; People v Huntley, 15 NY2d 72; People v Graham, 55 NY2d 144; People v Gibson, 89 AD2d 859; People v Inglesia, 96 AD2d 515; Schmerber v California, 384 US 757; People v Lanquetot, 104 Misc 2d 179; Wong Sun v United States, 371 US 471; People v Ressler, 17 NY2d 174; People v Paulin, 25 NY2d 445.) II. Denial of Mr. Hamlin’s motion for a separate trial was error. The introduction of codefendant Green’s statement, in the absence of Green’s being subject to cross-examination, deprived Mr. Hamlin of his constitutional rights to confrontation and a fair trial. The devastating effect cannot be said to be harmless. (Bruton v United States, 391 US 123; People v McNeil, 24 NY2d 550; Cruz v New York, 481 US —, 107 S Ct 1714; People v Crimmins, 36 NY2d 230; People v Owens, 69 NY2d 585.) III. The seizure of Mr. Hamlin’s coat was unlawful. There is no basis on the record for a finding of consent. (People v Jennings, 69 NY2d 103; People v Santos, 68 NY2d 859; People v Whitehurst, 25 NY2d 389; People v Gonzalez, 39 NY2d 122; People v Crimmins, 36 NY2d 230.) IV. The court below erred in admitting the two bills into evidence. There was no testimony establishing that these bills were the same bills that were spent in the store. Mr. Hamlin was seriously prejudiced because these bills gave a false aura of credibility to his purported statements to the police. (People v Connelly, 35 NY2d 171; People v Mirenda, 23 NY2d 439; People v Thornton, 104 AD2d 426; People v Jackson, 291 NY 451; People v Beasley, 9 AD2d 954; People v Roff, 67 AD2d 805; People v Clark, 29 AD2d 700.)

      Howard R. Relin, District Attorney (Robert Mastrocola of counsel), for respondent in the first above-entitled action.
    I. The trial court properly declined to instruct the jury that the diagram drawn by defendant was a part of his statements and to disregard "derivative” evidence if they should find defendant’s statements involuntary. (People v Crimmins, 36 NY2d 230; People v Huntley, 15 NY2d 72; Duffy v People, 26 NY 588.) II. The introduction of codefendant’s statements was harmless error. (Bruton v United States, 391 US 123; Parker v Randolph, 442 US 62; Cruz v New York, 481 US —, 107 S Ct 1714; Harrington v California, 395 US 250; People v Baker, 26 NY2d 169; Schneble v Florida, 405 US 427; People v Pelow, 24 NY2d 161; People v Brensic, 70 NY2d 9; People v Smalls, 55 NY2d 407; People v Safian, 46 NY2d 181.) III. The issue of the seizure of defendant’s coat has not been preserved for appellate review and in any event the seizure was lawful. (People v Gonzalez, 55 NY2d 887; People v King, 61 NY2d 969; People v Rizzo, 40 NY2d 425; People v Kuhn, 33 NY2d 203; People v Crimmins, 36 NY2d 230; People v Young, 55 NY2d 419, 459 US 848.) IV. The trial court properly admitted the two bills. (People v Julian, 41 NY2d 340; People v White, 40 NY2d 797; People v Connelly, 35 NY2d 171; People v Mirenda, 23 NY2d 439; People v Crimmins, 36 NY2d 230.)

      Michael A. Rosenbloom for appellant in the second above-entitled action.
    I. The joint trial of Brown, Hamlin and Green and the admission into evidence of statements of Hamlin and Green violated Brown’s right to confront witnesses against him as set forth in the 6th Amendment to the United States Constitution. (Pointer v Texas, 380 US 400; Bruton v United States, 391 US 123; Cruz v New York, 481 US —, 107 S Ct 1714; Parker v Randolph, 442 US 62; People v Wheeler, 62 NY2d 867.) II. Neither Hamlin’s nor Green’s statements were directly admissible against Brown. (People v De Jesus, 69 NY2d 855; People v Tabarez, 69 NY2d 663; People v Nieves, 67 NY2d 125; People v Villani, 59 NY2d 781; People v Brensic, 70 NY2d 9; People v Settles, 46 NY2d 154; People v Maerling, 46 NY2d 289; United States v Sarmiento-Perez, 633 F2d 1092, 459 US 834; People v Thomas, 68 NY2d 194.) III. The Confrontation Clause violation was not harmless error. (Chapman v California, 386 US 18; Harrington v California, 395 US 250; People v Crimmins, 36 NY2d 230; Fahy v Connecticut, 375 US 85; People v Smalls, 55 NY2d 407.) IV. Kurtis Brown’s 6th Amendment critical stage right to counsel was violated by the delay in arraignment and police interrogation in the absence of counsel and by the failure to recognize his request for assistance. (People v Cooper, 101 AD2d 1; People v Samuels, 49 NY2d 218; People v Gillespie, 83 AD2d 712; People v Blake, 35 NY2d 331; People v Wilson, 56 NY2d 692; People v Lindo, 85 AD2d 643; People v Edgerton, 115 AD2d 257; People v Cun

      ningham, 49 NY2d 203; People v Claudio, 85 AD2d 245, 59 NY2d 556; People v Dodt, 92 AD2d 1063.) V. The alleged statement of appellant was given involuntarily in violation of his rights under CPL 60.45 and the Due Process and Self-incrimination Clauses of the 5th Amendment.

      Howard R. Relin, District Attorney (Robert Mastrocola of counsel), for respondent in the second above-entitled action.
    I. The introduction of the nontestifying codefendants’ statements was harmless error. (Cruz v New York, 481 US —, 107 S Ct 1714; Bruton v United States, 391 US 123; Harrington v California, 395 US 250; People v Baker, 26 NY2d 169; Schneble v Florida, 405 US 427; People v Pelow, 24 NY2d 161; People v Brensic, 70 NY2d 9; People v Smalls, 55 NY2d 407; People v Safian, 46 NY2d 181; People v Payne, 35 NY2d 22.) II. The determination of the admissibility of defendant’s statements is beyond review in this court; in any event the statements were properly admitted. (People v Winchell, 64 NY2d 826; People v King, 61 NY2d 969; People v Harrison, 57 NY2d 470; People v Johnson, 40 NY2d 882; People v Lane, 64 NY2d 1047; People v Smith, 62 NY2d 306; People v Ridgeway, 101 AD2d 555, 64 NY2d 925; Hoffa v United States, 385 US 293; People v Middleton, 54 NY2d 474; People v Brinsko, 115 AD2d 859.)
   OPINION OF THE COURT

Simons, J.

Defendants and another, Billy Joe Green, have been found guilty of murdering defendant Brown’s wife, Susan. All three executed written statements confessing to their parts in the crime and the statements were received in evidence during their joint trial. Only defendant Brown testified. He repudiated his statement, claiming that it was obtained illegally and as the result of psychological coercion. Defendants Hamlin and Brown now appeal, contending that because statements of nontestifying codefendants were received in evidence they were denied their constitutional right to confrontation (US Const 6th Amend).

In Bruton v United States (391 US 123), the Supreme Court determined that the statement of a nontestifying codefendant implicating a defendant could not be received in a joint trial without violating the Confrontation Clause because, notwithstanding instructions to the jury that it must not be considered as evidence of guilt against the defendant, the danger of misuse was too great to be constitutionally permissible. This was so, the court said, not only because the incriminations were "devastating” to the defendant but also because their credibility was suspect when the codefendant accomplice did not testify and thus was not subject to cross-examination. For a time, the courts recognized a limited exception to the Bruton rule in cases in which the confession of the defendant and the codefendant "interlocked” (see, People v Cruz, 66 NY2d 61, 69-72; People v McNeil, 24 NY2d 550; Parker v Randolph, 442 US 62 [plurality opn]). They did so in the belief that the dangers recognized in Bruton were minimized in the case of interlocking confessions because the codefendant’s statement could not be "devastating” to a defendant who had confessed to substantially similar events and because jury consideration of the codefendant’s statement would be minimized if defendant himself had confessed to the same facts. The trial court relied on the exception in this case and admitted the statements of the three defendants. The exception for interlocking confessions has now been rejected by the Supreme Court (see, Cruz v New York, 481 US —, 107 S Ct 1714, reversed on remand 70 NY2d 733) and we must determine whether the trial court’s ruling constituted harmless error.

Constitutional error may be harmless only if it is harmless beyond a reasonable doubt, that is, there is no reasonable possibility that the erroneously admitted evidence contributed to the conviction (Schneble v Florida, 405 US 427, 431; Chapman v California, 386 US 18, 24; People v Almestica, 42 NY2d 222, 226; People v Crimmins, 36 NY2d 230, 237). In making that determination, the court considers two discrete factors: (1) the quantum and nature of the evidence against defendant if the error is excised and (2) the causal effect the error may nevertheless have had on the jury (see, People v Crimmins, supra, at 240). In the appeals before us, we need not evaluate the first factor because the codefendants’ statements were not admitted as substantive evidence against the defendants; they claim only that receipt of the codefendants’ statements was unacceptably prejudicial.

I

We turn then to the facts.

The People submitted evidence at trial that in the winter of 1982-1983 defendant Brown was having serious problems with his wife and that he devised a plan to solve these problems, and also to obtain substantial life insurance proceeds, by killing her. For that purpose, he contacted defendant Hamlin, a friend who had worked with him at one time and who knew his wife, and he offered Hamlin $5,000 to kill her. Hamlin agreed but subsequently lost his nerve and brought Billy Joe Green into the plan to help him. Brown offered to pay Green $5,000 also if he and Hamlin did the job.

On the morning of February 2, 1983 the three met at a local restaurant for breakfast and completed their plans. After eating, Hamlin and Green left the restaurant and went to the Brown apartment where they visited with Susan for a short time and then stabbed her to death. Her body, when found, had approximately 30 knife wounds.

The prosecutor’s evidence at trial consisted of defendants’ statements, several items of tangible evidence and testimony from several witnesses who related Brown’s activities on the morning of the killing and his motive for killing his wife. These witnesses established that Susan Brown had elected to take out an insurance policy through her employer which paid $110,000 to her husband upon her accidental death, that shortly before her death Brown told others that he expected to come into about $100,000 and that he intended to use the money to buy an expensive Corvette automobile and move to Florida to be with a girlfriend and a child she had by him. The People also introduced evidence of Brown’s other matrimonial infidelities and his admissions to others that his wife had caught him "messing around”.

The role of Hamlin and Green in the killing was confirmed by recovery of the bloodstained knives used in the crime from locations they identified, by evidence that their clothes contained human blood stains not inconsistent with Susan’s blood, and by evidence that threads similar to those in Susan’s sweater and hair similar in nature to her hair were found on Hamlin’s clothes. There was also evidence that fibers consistent in type with those in Green’s pants were found on the victim’s pants.

Independent witnesses corroborated that the three men had eaten breakfast together the morning of the crime and that Hamlin had tried to contact Brown at work later in the morning, apparently to signal him that the killing had been completed.

The police interviewed Brown after the crime was discovered but he denied any part in it. They subsequently obtained oral and written confessions from Hamlin and Green, however, setting forth in minute detail their parts in the crime and inculpating Brown. On February 3, the day after the homicide, Brown came to the police station with his father and his two brothers-in-law to recover property the police were holding. The police questioned him again at that time and obtained a written statement in which he acknowledged his role in the crime. His statement was read by one of the detectives to Brown’s father and brothers-in-law in his presence and he was asked if it were true. Both brothers-in-law testified at the trial that defendant acknowledged to them that it was. Brown did not call his father at trial to contradict them.

II

When considering harmless error in a Bruton case, the court must determine on the basis of its own reading of the record the probable impact of the codefendant’s admissions on the "minds of an average jury” and whether they were sufficiently prejudicial to defendant to require reversal of the conviction and a new trial (see, Harrington v California, 395 US 250, 254). In making that assessment, we consider a number of factors, including how comprehensive defendant’s statement is and whether it satisfactorily explains his or her part in the crime without reference to the codefendant’s statement, whether it is corroborated or contradicted by other objective evidence, and whether defendant has reiterated it on one or more subsequent occasions (see, Sehneble v Florida, 405 US 427, 431, supra). If the defendant has repudiated the confession, a similar, detailed statement by a codefendant may be particularly prejudicial to the minds of a jury instructed to decide whether defendant’s statement was voluntary (see, Cruz v New York, 481 US, at —, 107 S Ct, at 1718, supra; People v Pitts, 71 NY2d 923; cf, Schneble v Florida, supra).

ra

After considering these factors, we find no reasonable possibility that the jury’s assessment of Hamlin’s guilt was affected by the statements of Brown and Green. Hamlin’s written confession was detailed, complete, and internally consistent. It was supported by objective evidence establishing that Brown and Hamlin knew each other and that they were together on the day of the crime — thus confirming the bargain —and by evidence of the blood and hair similar to that of decedent which was on defendant’s clothes — confirming his participation in the killing. It was also corroborated by the recovery of Hamlin’s knife from the place where he said he had discarded it and the recovery of blood-spotted money, stolen from the Brown apartment, at a store where Hamlin stated he had spent it. Moreover, Hamlin executed written statements recounting his version of events twice and in both the facts critical to establishing his guilt were consistent. In the first statement, which related only the events in the apartment and did not refer to defendant Brown, Hamlin stated that he and Green killed Susan to obtain money which they found in her dresser drawer. The second statement included the details of Brown’s part in planning the crime and Hamlin revealed in it that the motive was payment of $5,000 from Brown. But his second statement was otherwise consistent with the first and he even repeated the same facts concerning the theft of money from Susan’s dresser drawer although he did not claim theft was the motive for the killing. Although the court submitted the issue of voluntariness to the jury, Hamlin did not directly challenge these statements by taking the witness stand and there is nothing in the record to suggest the jury did not accept his statements as voluntary and reliable. Based upon them and the objective corroborating evidence, the proof of Hamlin’s guilt was overwhelming and any error in admitting the statements of his codefendants was harmless beyond a reasonable doubt.

The case against Brown rested on his confession. The remaining evidence established a strong motive for him to want his wife dead and his efforts to establish an alibi but there was nothing to connect him to the killing except his confession. He repudiated the confession during his testimony at trial, however, and the jury was instructed that it could find the statement involuntary and, if it did so, it was to disregard it.

In repudiating the statement, Brown noted that he had become so emotionally upset upon finding his wife’s mutilated body that he was taken to the hospital for treatment. He claimed that the statement, executed the next day, was made when he was still suffering from the shock of her death and after he had been implicated in the killing by the codefendants. He also claimed the police had arrested him illegally and had failed to accord him his Miranda rights. Finally, he contended that the police had induced the confession by promising a lesser charge if he cooperated in establishing the case against Hamlin and Green.

The evidence against Brown, without his confession, is not sufficient to support the jury’s verdict and, considering his broad attack on the police conduct, we cannot say beyond a reasonable doubt that the jury’s verdict that his confession was voluntary was not effected by hearing the statements of Hamlin and Green. Accordingly, Brown’s conviction must be reversed and a new trial ordered.

IV

Two other points must be addressed.

Defendant Hamlin contends that the court erred in refusing to charge the jury that if it found his statements involuntary, all physical evidence "derived as a result of those statements” must be dismissed from consideration. He cited no authority for his request but in his pretrial argument urged that the tangible evidence had to be suppressed because of his unlawful arrest, citing Payton v New York (445 US 573) and Dunaway v New York (442 US 200).

In Jackson v Denno (378 US 368), the Supreme Court reviewed New York’s existing procedure for determining the voluntariness of a defendant’s statement and found that it denied defendants’ due process of law because it permitted a jury to determine voluntariness in the first instance and the jury might be influenced improperly in making that determination by its view of the reliability of the statement. The court held that to avoid this danger decisions on voluntariness must be made by the trial court alone but States could, if they wished, adopt the "Massachusetts procedure” and also permit the jury to pass on the issue of voluntariness a second time after the court had first done so (id., at 378-379). In People v Huntley (15 NY2d 72), we implemented Jackson v Denno (supra), holding that New York would follow the Massachusetts procedure in the future. Noting that our prior practice of permitting juries to decide issues of voluntariness evolved from the New York Constitution’s guarantee of jury trial, we held that, in accordance with Jackson v Denno (supra), a pretrial hearing must be held by the court to consider whether defendant’s statement was voluntary and, therefore, admissible at trial, but that if the court decided that question against defendant, the issue could also be submitted to the jury for its consideration.

Following Huntley, the Legislature formalized the procedures for suppressing evidence which are now codified in article 710 of the Criminal Procedure Law. CPL 710.70 (3) provides that the "exclusive” method to suppress evidence shall be by pretrial hearing before the court. This procedure satisfies Federal constitutional requirements for admissibility of evidence (see, Jackson v Denno, supra; see generally, 4 LaFave, Search & Seizure § 11.2 [d], [f] [2d ed]). The Legislature provided a further statutory right to defendants challenging statements, however, and directed that a defendant must also be permitted to submit to the jury the issue of whether the statement was voluntarily obtained within the meaning of CPL 60.45. This statutory provision not only incorporates the Huntley "second bite” procedure for statements, but it grants even broader protection than Jackson u Denno or People v Huntley require by incorporating the statutory definition of voluntariness found in CPL 60.45 (see, People v Graham, 55 NY2d 144, esp concurrence of Wachtler, J., at 152; CPL 710.70 [3]). The Legislature enacted no similar provision authorizing juries to consider the admissibility of tangible evidence (see generally, Bacigal, A Case for Jury Determination of Search and Seizure Law, 15 U Rich L Rev 791, 808 [stating that jury consideration of search and seizure issues is a matter for the Legislature and finding, after a review of authorities, that none has enacted provisions authorizing it]).

In the matter before us, defense counsel requested generally that the jury be instructed to disregard physical evidence obtained as a result of any infirmity in securing Hamlin’s statements. He had no right to the submission of that question to the jury under the Due Process Clause of the Federal Constitution or under the Criminal Procedure Law and he did not preserve for our review any question that he was entitled to such relief under the State Constitution.

Finally, inasmuch as defendant Brown will be subject to a new trial, we add that we find no merit to his claim that he was denied his 6th Amendment right to counsel. The accusatory process had not commenced at the time the statement was taken from him the day after the killing (see, People v Lane, 64 NY2d 1047, 1048; People v Ridgeway, 64 NY2d 952, 964).

We have considered defendants’ remaining points and find them without merit.

Accordingly, the order of the Appellate Division in People v Hamlin should be affirmed, and in People v Brown the order should be reversed, and a new trial ordered.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

In People v Hamlin: Order affirmed.

In People v Brown: Order reversed and a new trial ordered.

      . Defendants Green and Hamlin each executed two written confessions, one detailing the events of the actual killing but omitting any mention of Brown’s promise to pay them money for the murder and another which also included details of the preliminary arrangement with Brown. Both of their confessions were received in evidence.

      . Brown testified and was subject to cross-examination. Thus, there is no Bruton violation insofar as Hamlin was tried with Brown. Nevertheless, the People did not attempt to use Brown’s statement directly against Hamlin and the court instructed the jury that they could not consider his statement as evidence of the guilt of Hamlin or Green. The People concede that under the circumstances they cannot argue now that because Brown testified there was no Bruton violation.

      . Defendant does not challenge the finding of the court in the Huntley hearing.


author: Hancock, Jr., J.

text:
    In the Matter of Richard Frasier, Respondent, v Board of Education of the City School District of the City of New York et al., Appellants.
    Argued April 25, 1988;
    decided June 7, 1988

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Fay S. Ng and Stephen J. McGrath of counsel), for appellants.
    The petition should be dismissed. Petitioner’s discontinuance was not illegal or in any way improper, and the Chancellor’s exercise of his discretion to reinstate petitioner to his probationary service does not entitle him to an award of back pay or to any other emoluments for the period of his discontinuance. (Matter of Venes v Community School Bd., 43 NY2d 520; James v Board of Educ., 37 NY2d 891; Matter of Kaufman v Anker, 42 NY2d 835; Matter of Velger v Williams, 118 AD2d 1037; Matter of Macklin v Powell, 107 AD2d 964; Matter of McAulay v Board of Educ., 61 AD2d 1048, 48 NY2d 659; Haron v Board of Educ., 411 F Supp 68; Austin v Board of Higher Educ., 5 NY2d 430; Matter of Sinicropi v Bennett, 92 AD2d 309, 60 NY2d 918; Piro v Bowen, 76 AD2d 392, 52 NY2d 702.)

      Richard A. Shane and James R. Sandner for respondent.
    The courts below properly determined that petitioner is entitled to retroactive reinstatement, seniority credit and back salary. (Matter of Golomb v Board of Educ., 92 AD2d 256; Matter of Sinicropi v Bennett, 92 AD2d 309, 60 NY2d 918; Matter of Lezette v Board of Educ., 43 AD2d 755; Matter of Brown v Board of Educ., 42 AD2d 702; Matter of Venes v Community School Bd., 43 NY2d 520; Matter of Maryland v Ambach, 59 NY2d 711; People ex rel. Doscher v Sisson, 222 NY 387; Matter of Garcia v Board of Educ., 100 AD2d 967; Matter of Lehman v Board of Educ., 82 AD2d 832.)
   OPINION OF THE COURT

Hancock, Jr., J.

Petitioner, a probationary teacher in the New York City school system, was notified by a letter from the Chancellor dated June 28, 1984 that his probationary appointment was terminated as of September 4, 1984. Subsequently — after a review, as afforded by the collective bargaining agreement, under the procedures established in the Board bylaws — the Chancellor reversed his earlier determination and reinstated petitioner to probationary status.

The issue in this appeal by respondent Board of Education is whether the Chancellor’s original action terminated petitioner’s rights as a probationary appointee under Education Law § 2573 (1) (a) as of September 4, 1984, or whether, as petitioner claims in his CPLR article 78 proceeding, that action was nonfinal and ineffective until completion of the review procedure. The Appellate Division, affirming Supreme Court’s judgment in favor of petitioner, held that the Chancellor’s original determination was not final and that, therefore, from September 4, 1984 until March 25, 1985, when the review was complete, petitioner was illegally deprived of his position. Accordingly, it directed that petitioner’s reinstatement be retroactive with back pay and full benefits from September 4, 1984. We granted leave to appeal and, for reasons which follow, now reverse.

I

Unquestionably, a Board of Education, under Education Law § 2573 (1) (a), has the right to terminate the employment of a probationary teacher at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith (see, Matter of Venes v Community School Bd., 43 NY2d 520, 525; James v Board of Educ., 37 NY2d 891, 892). In the City of New York, the Chancellor, as the Board’s designee, may properly make the determination to discontinue a probationer (see, Matter of Brown v Board of Educ., 42 AD2d 702 Iv denied 34 NY2d 519). A teacher who has been discontinued, however, may ask the Chancellor to review his decision and, in effect, reverse himself pursuant to section 5.3.4 of the Board of Education bylaws. Under this procedure, a hearing is held before a committee appointed by the Chancellor and selected in accordance with the collective bargaining agreement. After the hearing, the committee submits its advisory findings and recommendations to the Chancellor who makes the ultimate decision (see, Matter of Kaufman v Anker, 42 NY2d 835, 837).

It is a basic policy underlying Education Law § 2573 (1) (a) that the responsibility for selecting probationary teachers and evaluating them for appointment on tenure should lie with the Board of Education upon appropriate recommendation of its professional administrators (see, Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 49 NY2d 732, 734; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 777, 778), and that the Board should have broad discretion in making such decisions (see, Matter of Venes v Community School Bd., supra; Bergstein v Board of Educ., 34 NY2d 318, 323). From the language of Education Law § 2573 (1) (a), it is evident that a decision not to grant tenure to a probationary teacher, once made, is intended to be final. The statute contains no provision for reconsideration or review or for reinstatement of a discontinued probationary appointee. Except for the requirement that a person who is not being recommended for tenure be notified in writing no later than 60 days before the expiration of the probationary term, the authority of the Board to discontinue the services of a probationer is without temporal limitation. Indeed, the Board is specifically authorized to exercise its power to discontinue "at any time during such probationary period” (Education Law § 2573 [1] [a] [emphasis supplied]).

The question remains, however, whether anything in the review procedure established in the bylaws (see, Education Law § 2590-d [1]; Matter of Lehman v Board of Educ., 82 AD2d 832, 833; Matter of Jacobs v Board of Educ., 73 AD2d 623, 624) makes the Chancellor’s original decision on discontinuance nonfinal. We think not. Section 5.3.4 of the bylaws in no way pertains to the finality of the Chancellor’s decision. The section is procedural only, contains no provision concerning reinstatement or back pay, and does not purport to affect the teacher’s substantive rights under the statute.

Probationary teachers have no constitutional or statutory right to a review of the Chancellor’s decisions to discontinue their services and to deny tenure (see, Matter of Aherns v Board of Educ., 57 AD2d 925; Matter of Clausen v Board of Educ., 39 AD2d 708). Their right to a review stems solely from the collective bargaining agreement. Section 5.3.4 does no more than establish an optional procedure under which a teacher may ask the Chancellor to reconsider and reverse his initial decision, a decision which is final and which, when made, in all respects terminates the employment of a probationer under Education Law § 2573 (1) (a). To adopt petitioner’s position that a section 5.3.4 review postpones the effective date of the Chancellor’s action until completion of the review procedure would have anomalous consequences. A probationary teacher could, although validly removed from the teaching rolls by action of the Chancellor under Education Law § 2573 (1) (a) and performing no services for the school system, become entitled to full salary during the review process, regardless of its eventual outcome. To obtain such entitlement, a discontinued teacher would have only to institute review under section 5.3.4. We need not consider the constitutional implications of such a construction, for it was clearly never intended.

II

In this case, petitioner had a probationary appointment as a teacher of English as a second language at the Adlai Stevenson High School. The Chancellor, upon the recommendation of the Superintendent of the Bronx High Schools, advised petitioner by letter on June 28, 1984 that his service as a teacher was "terminated as of the close of business on September 4, 1984” and that pursuant to the collective bargaining agreement petitioner was "entitled to the review procedures under Section 5.3.4 of the Bylaws”. In a letter to petitioner dated March 25, 1985, the Chancellor stated: "After careful consideration of your case, I have determined to reverse the recommendation to discontinue your probationary service as a Teacher of English as a Second Language which was effective at the close of business September 4, 1984” (emphasis added).

Petitioner does not contend that the Chancellor’s initial action in discontinuing his services was unlawful in the sense that the Chancellor lacked authority or that it was in violation of petitioner’s constitutional or statutory rights. Matter of Golornb v Board of Educ. (92 AD2d 256), relied on by petitioner and the Appellate Division, is, therefore, not on point. In that case, the probationary status of a teacher in the New York City system was improperly terminated by her high school principal rather than, as required, by the Chancellor. Thus, unlike the case at bar, the ouster in Golornb was patently unlawful (id., at 258). Nor does petitioner contend z that his discontinuance was procedurally defective (cf., Matter of Pascal v Board of Educ., 100 AD2d 622 [probationary teacher not given 60 days’ prior notice of discontinuance required by Education Law § 2573 (1) (a)]). There is no question that the Chancellor’s June 28, 1984 letter was within the probationary period, that it gave petitioner more than the required 60 days’ notice of the effective date of the termination, and that the action was taken on recommendation of the Superintendent (Education Law § 2573 (1) (a); see, Matter of Brown v Board of Educ., 42 AD2d, supra, at 703). Petitioner argues only that the Chancellor’s original action, as recited in the June 28, 1984 letter, was incomplete and, for that reason, ineffective. We disagree.

There is nothing tentative or conditional about the letter. The message is simple and direct: that petitioner’s "probationary service as a teacher of ESL is terminated as of the close of business on September 4, 1984” (emphasis supplied). The Chancellor’s June 28, 1984 letter met all the statutory requirements.

Accordingly, the order should be reversed, with costs, and the proceeding dismissed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order reversed, etc.

       Section 5.3.4C pertaining to review of decisions on continuance of services is as follows:
      "Review Committee in Recommendation for Discontinuance of Service”
      "Any person in the employ of the board of education who is summoned to appear before the chancellor, or a committee designated by the chancellor, in respect of the discontinuance of service during the probationary term, or at the expiration thereof, shall have a review of the matter before a committee which shall be designated in accordance with contractual agreements covering employees or by regulations of the chancellor, as appropriate.
      "After the review, the committee shall forward its advisory recommendation to the community school board or to the chancellor in accordance with contractual agreements.”


text:
    The People of the State of New York, Respondent, v Michael Scarola, Appellant. The People of the State of New York, Respondent, v Henry Merchant, Appellant.
    Argued April 26, 1988;
    decided June 7, 1988

      POINTS OF COUNSEL

      Andrew C. Fine and Philip L. Weinstein for appellant in the first above-entitled action.
    I. Where complainant testified that her assailant had no speech impediment and appellant’s sister testified that appellant’s speech had been impaired throughout his life due to a physiological condition, the court’s ruling, conditioning the introduction of appellant’s voice exemplar upon appellant’s submission to cross-examination concerning his prior felony conviction and unspecified circumstances surrounding the crime, deprived appellant of due process and his right to present a defense. (People v Shields, 81 AD2d 870; People v Williams, 130 Misc 2d 773; People v Rodriguez, 64 NY2d 738; United States v Wade, 388 US 218; United States v Dionisio, 410 US 1; Schmerber v California, 384 US 757; People v Cwikla, 46 NY2d 434; United States v Bay, 762 F2d 1314; Wardius v Oregon, 412 US 470; United States v Esdaille, 769 F2d 104, 474 US 923.) II. The trial court improperly ruled that the prosecutor had an absolute right to prompt an in-court identification by showing a single arrest photograph of appellant to an eyewitness in court, and erroneously failed to recognize that it had the discretionary authority to direct the preparation of a nonsuggestive photographic array for display to the witness, as defense counsel requested. (People v Powell, 105 AD2d 712, 67 NY2d 661; People v Cronin, 60 NY2d 430; People v Williams, 56 NY2d 236; People v Caviness, 38 NY2d 227; People v Sandoval, 34 NY2d 371.) III. The series of rulings denying, without a hearing, appellant’s motions to suppress complainant’s arrest-scene identification as the fruit of an unlawful arrest, unjustifiably deprived appellant of his statutory and constitutional right to a full and fair opportunity to litigate a motion to suppress. (People v Cavagnaro, 88 AD2d 938; People v Davis, 74 AD2d 714; People v Growich, 38 AD2d 733; People v Lombardi, 18 AD2d 177, 13 NY2d 1014; Stone v Powell, 428 US 465; Mapp v Ohio, 367 US 643; Townsend v Sain, 372 US 293; People v Millan, 118 AD2d 236, 69 NY2d 514; People v Gruden, 42 NY2d 214; People v Ramos, 130 AD2d 439.)

      Paul T. Gentile, District Attorney (Lisa M. Rubin and Peter D. Coddington of counsel), for respondent in the first above-entitled action.
    I. Appellant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. (People v Posten, 54 AD2d 948; Bass v Scully, 562 F Supp 905; United States ex rel. Phipps v Follette, 428 F2d 912; People v Regina, 19 NY2d 65; Gonzalez v Hammock, 639 F2d 844, 449 US 1088; People v Johnson, 57 NY2d 969.) II. The trial court properly exercised its discretion in refusing to permit appellant to give a voice exemplar without being subject to cross-examination where the voice exemplar was of questionable probative value and unduly prejudicial to the People. (People v Iannelli, 69 NY2d 684; People v Stith, 69 NY2d 313; People v Mountain, 66 NY2d 197; People v Nuccie, 57 NY2d 818; People v Dozier, 52 NY2d 781; People v Thomas, 50 NY2d 467; United States v Wade, 388 US 218; People v Acevedo, 40 NY2d 701; People v Smith, 86 AD2d 251; People v Williams, 130 Misc 2d 773.) III. Where appellant waived his presence at trial during the testimony of a prosecution witness, the trial court properly exercised its discretion in permitting the prosecution witness to make an in-court photographic identification of appellant. (United States v Harvey, 439 F2d 142, 403 US 934; People v Powell, 105 AD2d 712, 67 NY2d 661; United States v King, 433 F2d 937; People v Logan, 25 NY2d 184, 396 US 1020; People v Greenridge, 46 AD2d 947; United States v Jackson, 476 F2d 249; Holt v United States, 218 US 245; People v Winship, 309 NY 311; People v Sanchez, 65 NY2d 436; People v Pearce, 48 NY2d 897.) IV. The court below acted properly in summarily denying appellant’s initial suppression motion, which contained mere conclusory allegations and was barren of supporting facts, and appellant’s subsequent suppression motions, which contained information which could have been discovered earlier with reasonable diligence. (People v Gomez, 67 NY2d 843; People v Allweiss, 48 NY2d 40; People v Bennett, 30 NY2d 283; People v Lofton, 129 AD2d 970; People v Washington, 106 AD2d 593; People v Ricks, 96 AD2d 788; People v Hernandez, 124 Misec 2d 840; People v Roberto H., 67 AD2d 549; People v Thompson, 129 AD2d 655; Watkins v Sowders, 449 US 341.)

      Miriam J. Hibel and Philip L. Weinstein for appellant in the second above-entitled action.
    Where complainant testified that, throughout the robber’s conversation with her, he manifested no impairment or peculiarity of speech, and defense witnesses testified to appellant’s lifelong speech impediment, the court’s refusal to permit appellant to give a voice exemplar deprived him of his right to present relevant, exculpatory evidence. (Crane v Kentucky, 476 US 683; Chambers v Mississippi, 410 US 284; Washington v Texas, 388 US 14; Jenkins v McKeithen, 395 US 411; People v Gilliam, 45 AD2d 744, 37 NY2d 722; People v Foy, 32 NY2d 473; People v Acevedo, 40 NY2d 701; People v Williams, 130 Misc 2d 773; People v Shields, 81 AD2d 870; People v Rodriguez, 64 NY2d 738.)

      Paul T. Gentile, District Attorney (Robert L. Shepherd and Billie Manning of counsel), for respondent in the second above-entitled action.
    I. Appellant’s guilt was proved beyond a reasonable doubt by compelling evidence. (People v Johnson, 57 NY2d 969; People v Bleakley, 69 NY2d 490; People v Malizia, 62 NY2d 755; People v Stroman, 83 AD2d 370; People v Samuels, 68 AD2d 683, 50 NY2d 1035; People v Daniels, 88 AD2d 392; People v Davis, 92 AD2d 177, 61 NY2d 202; United States v Esdaille, 769 F2d 104.) II. The court below properly precluded appellant from offering a nontestimonial voice exemplar before the jury since the prejudicial impact of the evidence outweighed its probative value. (People v Iannelli, 69 NY2d 684; People v Stith, 69 NY2d 313; People v Mountain, 66 NY2d 197; People v Nuccie, 57 NY2d 818; People v Dozier, 52 NY2d 781; People v Thomas, 50 NY2d 467; United States v Wade, 388 US 218; People v Acevedo, 40 NY2d 701; People v Smith, 86 AD2d 251; People v Williams, 130 Misc 2d 773.)
   OPINION OF THE COURT

Simons, J.

The principal issue presented in these unrelated appeals is whether the trial courts erred in refusing to allow defendants to demonstrate their voices to the jury. Inasmuch as the voice exemplars were offered as real or demonstrative evidence, defendants did not have an absolute legal right to admission of the evidence and under the circumstances presented we hold that neither court abused its discretion in refusing to admit it. Accordingly, the orders of the Appellate Division should be affirmed.

I

Defendant Michael Scarola was indicted for the crimes of robbery in the second degree, attempted rape in the first degree and assault in the second degree arising out of an incident occurring on April 18, 1984 in The Bronx. According to the People’s proof at trial, defendant followed Kathy Mc-Manus home from work one evening and attacked her in the vestibule of her apartment. Before opening the locked door to the lobby, McManus looked over her shoulder and saw defendant. He immediately placed his hand over her mouth, told her to be quiet and threw her against the wall. When she tried to scream, the defendant punched her in the jaw and said at least twice, "I have a knife. Don’t make me have to cut your heart out”. He demanded that she give him money. After taking $13, defendant punched McManus in the face again and then ordered her to open the lobby door so that he could take her inside and have intercourse with her. Seeing a friend outside the building McManus screamed for help and defendant fled. The police apprehended defendant a short time later and the victim identified him as her assailant.

The defense was mistaken identity. Although McManus testified on cross-examination that her assailant had no noticeable speech impediment and that she had no trouble understanding any of his statements during the incident, defendant called his sister, and she testified that defendant talks through his nose "like he has a cold all the time” and that she has trouble understanding him when they have an extended conversation. On cross-examination the sister admitted that she had no degree in speech pathology, audiology, or any other medical discipline, and that based on her knowledge defendant would not have any problem saying "short sentences” of "maybe two or three words together”, such as "take the money.”

Based upon this foundation, defense counsel requested a ruling permitting defendant to take the stand to provide a voice exemplar for the jury establishing that he had a speech impediment. The trial court ruled that defendant could not testify without being subjected to cross-examination, not only about the sound of his voice — to which defendant consented— but also about the events of the incident insofar as they related to his voice and, for credibility purposes, questions concerning his prior convictions. In view of this ruling, defendant chose not to take the stand. The jury convicted him of robbery in the second degree and a unanimous Appellate Division affirmed the judgment of conviction. A Judge of this court granted defendant permission to appeal.

Defendant Henry Merchant was indicted for committing the crimes of robbery in the first degree, grand larceny in the third degree, criminal possession of stolen property in the third degree and criminal possession of a weapon in the fourth degree. According to the People’s proof at trial, at 10:45 p.m. on July 18, 1984 defendant accosted Michelle Sherrel with a knife, demanding, "Give me your wallet. I won’t hurt you”. He asked Sherrel how much money she had in her wallet and when she had difficulty finding her money buried in a change purse at the bottom of her handbag, he told her, "I am going to give you a few minutes to find that wallet. If you don’t find that wallet, I’m going to have to do some work on you.” Eventually defendant reached into the victim’s handbag himself and took the small zippered change purse containing $12 and some change. He then asked what she held in her hand and when she responded that it was a radio he demanded both the radio and the headphones she was wearing. Before leaving, he asked if she lived in the area and then warned, "Don’t let me have to come back here and do some work on you.” Sherrel went home, reported the incident to the police and defendant was arrested the next morning. She identified him in a lineup conducted at the police station and at trial she testified that there was "no doubt” and "no question” in her mind that defendant was the man who robbed her.

The defense was alibi. Two of defendant’s longtime friends testified that he accompanied them to the movies at White-stone Cinema on the night of the robbery and that all three individuals stayed at the movies until after 11:30 p.m. William Beebe, who was employed as a security guard at the theatre, testified that he remembered that defendant was 1 of 3 individuals who tried to "sneak in” the theatre that night and that when he caught them he gave them free passes to the 10:00 p.m. showing of the movie.

Defendant elected not to testify but he sought permission to take the stand for the limited purpose of giving a voice exemplar. The court denied the application observing that in his opinion there was too great a risk that defendant would be able to fake a speech impediment before the jury.

Defense counsel then attempted to lay a foundation for the voice exemplar evidence. Defendant’s father testified that defendant had a speech problem for which he had been undergoing treatment all his life, that defendant’s speech at present was a little better than when he began treatment, but that he still talked through his nose. Defendant also called a speech therapist who had treated him for six months in 1983. She testified that defendant could not pronounce certain sounds correctly, that he had stoppages and sound repetitions in his speech similar to a stutterer and that because of his rapid rate of speech défendant often had difficulty correctly pronouncing multisyllabic words. On cross-examination, however, the therapist conceded that defendant could articulate, "I won’t hurt you, give me your wallet or I’ll do some work on you” without betraying any noticeable speech problem. She also noted that if defendant spoke in short sentences it was possible for him to "camouflage” his speech.

After hearing this testimony, the trial court denied defense counsel’s renewed request to permit the voice exemplar evidence, noting that "any such offer would be subject to such mischief as to make it meaningless in the context of this case”. The jury convicted Merchant of robbery in the first degree, a unanimous Appellate Division affirmed the judgment and leave to appeal was granted by a Judge of this court.

II

In each case defendant contends that the trial court erred in denying him the opportunity to refute the complainant’s identification by demonstrating to the jury that he had a speech impediment. Unquestioned is defendants’ right to take the witness stand and testify, thereby waiving the privilege against self-incrimination and subjecting themselves to cross-examination about the incident itself, prior convictions, and prior bad acts (see, People v Betts, 70 NY2d 289). That is not what they sought to do, however; they wished to exhibit their voices to the jury. The relevance of the evidence they offered was not in what they would say, but in how they would say it.

Voice exemplar testimony has been accepted as nontestimonial in nature. Thus, the prosecution can require, for example, that a defendant speak in a station house lineup to aid the witnesses identification (United States v Wade, 388 US 218, 222) or provide a voice exemplar to a Grand Jury (United States v Dionisio, 410 US 1, 7). A defendant can even be compelled to speak at the trial itself without implicating the right against self-incrimination if doing so will aid a witness with an identification (People v Smith, 86 AD2d 251; see, Annotation, Criminal Defendant in Trial Demonstrations, 3 ALR4th 374, § 12).

Relying on these rulings and the general proposition that one of the essential ingredients of due process of law is reciprocity (see, Wardius v Oregon, 412 US 470, 472), defendants contend that if the State can compel a defendant to provide a voice exemplar to assist the prosecution at trial then the State must also permit a defendant to provide an exemplar during his defense if he or she so elects. Their argument does not withstand analysis. Whether an act is testimonial determines whether the State may compel a person to perform an act -without violating his or her 5th Amendment right, but the fact that an exhibition of a physical characteristic is not testimonial in nature does not necessarily require its reception as evidence at trial (United States v Esdaille, 769 F2d 104, 107, cert denied 474 US 923; see also, People v Acevedo, 40 NY2d 701, 704-705; People v Selby, 56 AD2d 584, cert denied 434 US 845; United States v Lam Muk Chiu, 522 F2d 330, 331-332). The test of whether voice exemplar evidence should be admitted as real or demonstrative evidence is not whether the proposed exemplar would be communicative, but whether it is relevant and reliable (United States v Esdaille, supra).

In New York, the general rule is that all relevant evidence is admissible unless its admission violates some exclusionary rule (People v Alvino, 71 NY2d 233, 242; Ando v Woodberry, 8 NY2d 165). Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence (People v Lewis, 69 NY2d 321, 325; Richardson, Evidence § 4 [Prince 10th ed]; Proposed Code of Evidence for State of New York § 401 [noting that its definition would "codify” existing law]). The voice exemplar evidence offered by these defendants was broadly relevant, and the trial courts could have exercised their discretion to admit it without permitting substantive cross-examination (see, People v Williams, 130 Misc 2d 773; see also, United States v Pastore, 537 F2d 675, 678 [admissibility of exemplar evidence should be left to the trial court’s discretion]). Not all relevant evidence is admissible as of right, however. Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury (People v Alvino, supra, at 242; People v Acevedo, 40 NY2d 701, 704, supra; cf., Uss v Town of Oyster Bay, 37 NY2d 639, 641). Considering the inherent lack of trustworthiness of defendants’ proposed exemplars and the difficulty of testing the authenticity of any alleged speech impediment they displayed, we cannot conclude that the trial courts abused their discretion in rejecting the proposed exemplars in these cases.

Initially, we note that voice exemplar evidence by its very nature is different from other common types of exemplar evidence. In People v Shields (81 AD2d 870), for example, the defendant attempted to display a 14-to-16-inch scar on his abdominal region that the complaining witness, a rape victim, did not mention. Since the defendant proffered hospital records showing that the scar had antedated the crime, there was no possibility of the scar’s lack of authenticity. The same reasoning has been applied to tattoos on a defendant’s body. If a defendant can demonstrate that the tattoos predated the crime and that the crime victim would have had reason to notice the tattoos during the incident, it would be proper to permit the defendant to exhibit the tattoos to the jury without being subject to substantive cross-examination (compare, People v Rodriguez, 64 NY2d 738, 741 [no abuse of discretion to refuse to allow defendant to display his tattooed hands inasmuch as there was no independent evidence that the tattoos were present on the date of the crime], with United States v Bay, 762 F2d 1314 [with a foundation that the tattoos were present on the date of the crime, defendant should be allowed to show hands to the jury without being subjected to substantive cross-examination]). In contrast, voice exemplar evidence, as the trial courts in these cases recognized, is relatively easy to feign (see also, United States v Esdaille, supra, at 107-108; People v Harding, 163 Mich App 298, 413 NW2d 777, 790, vacated on other grounds — Mich —, 420 NW2d 826).

Defendants rely on State v Tillett (351 So 2d 1153 [La]). In that case, the complaining witness identified defendant, in part, because he had a Spanish accent. The defendant’s request to take the stand to read a passage for purposes of demonstrating to the jury that he did not have an accent was denied by the trial court but the Louisiana Supreme Court reversed. The case is distinguishable from those before us on grounds of relevance and reliability. In Tillett defendant had been identified by his accent and the court believed a voice exemplar reliable because it is more difficult for a person to feign the absence of an accent if he normally speaks with one. Neither of these defendants was identified by the victims by means of his speech and any attempt by defendants at trial to demonstrate the existence of a speech impediment or nasal quality in their voices would not prove that they had such a problem because of the ease in feigning the defect before a lay jury.

Turning to the facts of these cases, we conclude that the trial courts did not abuse their discretion in denying defendants permission to give the proposed exemplars. In neither case did the victim rely on defendant’s voice to identify him. Moreover, the foundation for the admission of the evidence, in each case did not rule out the possibility that defendants could feign the existence of a speech defect. Even the speech therapist, called as an expert witness by defendant Merchant, testified that he could have "camouflaged” any speech problem he had when he spoke in brief sentences similar to the ones the actual robber used when holding up Sherrel.

Finally, we find no merit to defendants’ contention that there must be a reversal because the trial courts made their rulings in the mistaken belief that they had no discretion to permit the introduction of voice exemplar evidence without subjecting the defendants to substantive cross-examination (see, People v Cronin, 60 NY2d 430). It is clear that both courts rejected the proffered demonstrative evidence because, in the exercise of their discretion, they found its probative value outweighed by its unreliability and potential for prejudice.

in

One other contention of defendant Scarola warrants comment.

During his trial, defendant learned that an eyewitness, Christopher Odierno, would be called. He decided to leave the courtroom during Odierno’s testimony, believing that Odierno’s ability to identify the assailant would be unduly influenced if he saw the defendant in the courtroom prior to any questioning. The court conducted an allocution to insure that defendant knowingly and voluntarily waived his right to be present while Odierno was on the witness stand and then permitted him to leave.

Odierno then testified that he was sitting on the window sill of his third-floor apartment when he saw a man, whom he described, follow McManus into her apartment building. A short time later he heard a scream and the same man ran out of the building. Minutes after the incident defendant was apprehended and Odierno identified him as the same man that he had seen. The prosecution then attempted to show Odierno a photograph of defendant and ask him if it portrayed the man. Defense counsel objected and claimed that the People should be required to use a photographic array rather than a single picture. The court overruled the objection, and through the use of the picture Odierno identified defendant as Ms. McManus’ assailant.

We find no error in the court’s ruling. The People could have compelled the defendant to be present for purposes of the identification (People v Winship, 309 NY 311, 313-314). Having knowingly and voluntarily absented himself, he waived his right to object to the People’s use of a single photograph as opposed to a photographic array.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

In each case: Order affirmed.


author: Chief Judge Wachtler.

text:
    In the Matter of the Estate of Elizabeth H. B. Carmer, Deceased. Barbara Scoppettone, Respondent; Willis C. Bailey, Appellant.
    Argued April 26, 1988;
    decided June 7, 1988

      POINTS OF COUNSEL

      David Feureisen and John R. Bartels, Jr., for appellant.
    I. The court below erred by including the cooperative apartment stock and proprietary lease in paragraph third of decedent’s will. (Matter of State Tax Commn. v Shor, 43 NY2d 151; Matter of Fabbri, 2 NY2d 236; United Hous. Found,. v Forman, 421 US 837; Grenader v Spitz, 537 F2d 612; Matter of Bellows, 103 AD2d 594; Matter of Symonds, 79 AD2d 24; Matter of Larkin, 9 NY2d 88.) II. The court below erred in granting summary judgment to the specific legatee. (Zuckerman v City of New York, 49 NY2d 557.)

      Irving J. Neimark and Warren J. Schneider for respondent.
    I. On a motion for summary judgment appellant has failed to come forward with evidentiary proof in admissible form. (Zuckerman v City of New York, 49 NY2d 557; Hasbrouck v City of Gloversville, 102 AD2d 905, 63 NY2d 916; Schwerin v Leibowitz, 358 F Supp 195; Friedrich v Martin, 294 NY 588.) II. The holding of the court below that paragraph third of decedent’s will is clear, definite and unambiguous, and that her intent is best ascertained by the plain and ordinary meaning of the language she employed in her will, is in accord with the known facts, and should be affirmed. (Rossbach v Rosenblum, 260 App Div 206, 284 NY 745; Matter of Ordway, 196 NY 95; Kane v Walsh, 295 NY 198; People v Finn, 73 Misc 2d 266; Maggio v State of New York, 88 AD2d 1087; Newitt v Newitt, 282 App Div 81; Matter of Paciona v Marshall, 45 AD2d 462, 35 NY2d 289; Matter of Ireland, 231 App Div 288; Matter of Miller, 205 Misc 770; Matter of Englis, 2 NY2d 395.) III. The Court of Appeals should speak out and condemn character assassination. (Matter of Reohr, 71 AD2d 161.) IV. Converting common stock of a cooperative corporation from an article of personal property to a chattel real, is a legislative function, not the court’s. (Matter of State Tax Commn. v Shor, 43 NY2d 151; United Hous. Found. v Forman, 421 US 837; Grenader v Spitz, 537 F2d 612; Silverman v Alcoa Plaza Assocs., 37 AD2d 166; Shulkin v Dealy, 132 Misc 2d 371.) V. Appellant’s failure to file objections to the executor’s supplemental amended account constitutes an admission of the pleading, or due proof of the facts therein stated. (Matter of Kilborn, 232 App Div 580; Schoenborn v Kinderhill Corp., 98 AD2d 831; Melahn v Hearn, 60 NY2d 944.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The question in this will construction proceeding is whether decedent’s specific bequest of all her shares of common or preferred stock included her interest in the cooperative apartment in which she resided. We hold that it did not, and that the interest passes instead under the will’s residuary clause.

Elizabeth Carmer executed a will in 1973, when she was 72 years old, leaving everything to her husband if he survived her. He did not, however, and in that event the will provided: "I give and bequeath all shares of common or preferred stock of any corporation which I may own at the time of my death, in equal shares to Barbara and Orlando Scoppettone, or if only one of them shall survive me, all to such survivor.” The will then provided that the remainder of the estate, with small exceptions inconsequential here, was given in equal shares to decedent’s niece and nephew and to decedent’s husband’s niece and nephew, if then living, or if not living, to the deceased residuary legatee’s issue, per stirpes.

At the time the will was executed decedent owned and possessed a deed to a home. Three years later, however, decedent’s husband died and the home was sold. Decedent then purchased shares in a cooperative corporation, entitling her to a proprietary lease in an apartment owned by the cooperative. She resided in this apartment until her death. After decedent’s death the interest in the cooperative apartment was sold, and the proceeds placed in escrow.

Barbara Scoppettone, a specific legatee of decedent’s stock, is respondent here. She is the wife of the other specific legatee, Orlando Scoppettone, who was the decedent’s financial advisor and also was named executor under her will. Appellant Willis Carmer Bailey is decedent’s husband’s nephew named in the residuary clause of the will. Each party now claims a right to the proceeds of the sale of the interest in the cooperative apartment — respondent under the specific stock bequest, and appellant under the residuary clause. The Surrogate granted summary judgment on this issue to appellant. The Appellate Division disagreed, and granted summary judgment to respondent. We now reverse.

The interest in a cooperative apartment is sui generis in modern property law, because it does not fit neatly into traditional property classifications; the interest is represented by shares of stock, which are personal property, yet in reality what is owned is not an interest in an ongoing business enterprise, but instead a right to possess real property (see, Matter of State Tax Commn. v Shor, 43 NY2d 151, 156; United Hous. Found. v Forman, 421 US 837, 851). Characterization of an interest in a cooperative apartment, therefore, is "not resolved by uncritical resort either to the rubrics governing real property or those governing personal property.” (Matter of State Tax Commn. v Shor, supra, at 156.) Instead, this court, and other courts, have assessed on a case-by-case basis which aspect of this paradoxical interest predominates, in order to determine the applicability of a particular rule of law or statutory scheme; for example, in United Hous. Found. v Forman (supra, at 848-851) the United States Supreme Court held that because shares in a housing cooperative are purchased primarily to provide living space, and lack the characteristics traditionally associated with stock, they are not "securities” for the purpose of Federal securities laws, while in Matter of State Tax Commn. v Shor (supra, at 154) this court held that the personal property aspects of an interest in á cooperative apartment predominate in determining the priority of judgment creditors (see also, Weiss v Karch, 62 NY2d 849, 850 [a contract to sell a cooperative apartment is a sale of securities governed by the Uniform Commercial Code]; Rosner v 80 CPW Apts. Corp., 73 AD2d 39 [the sale of stock in a housing cooperative implicates the Statute of Frauds because it is the sale of an interest in real property]). In estate matters, the handling of interests in housing cooperatives by lower courts also is marked by tension between the residence ownership and corporate structure aspects of the interest; thus the gift of "any home of which I may die seized” was held to include the decedent’s interest in a cooperative apartment (Matter of Rockwell, 26 Misc 2d 709, 711), while the gift of "real estate” was found not to encompass such an interest (Matter of Miller, 205 Mise 770, 772).

In the case now before us, respondent argues that the decedent’s bequest of all her stock unambiguously includes the interest in the cooperative apartment, and that the court is without power "to change the clear and definite words of a will.” Nevertheless, while it might be linguistically defensible to mechanically hold that decedent’s gift to respondent of "stock” includes the disputed interest, this ignores that at issue here is not an ordinary investment security, but in substance a major capital expenditure securing a long-term living space. Thus the result respondent desires may not be facilely reached by focussing solely upon the word "stock” in the will; instead, a broader inquiry is necessary.

We begin, of course, with the elemental proposition that in construing a will the court’s foremost objective is ascertainment of decedent’s intent, and, concomitantly, effectuating the will’s purpose (e.g., Matter of Walker, 64 NY2d 354, 357). This task is not furthered by rote ascription of technical meanings to terms regardless of context; instead, "a sympathetic reading of the will as an entirety” is required (Matter of Fabbri, 2 NY2d 236, 240). The facts and circumstances of the will’s framing may be used to discern intent, and, if the will as a whole evidences a dominant purpose or plan for distribution, "the individual parts of the will must be read in relation to that purpose and given effect accordingly” (id.; Matter of Thall, 18 NY2d 186, 192). In cases in which discovery of the decedent’s intent was more difficult, we have employed a presumption in favor of the testator’s relatives as against unrelated persons (e.g., Matter of Gulbenkian, 9 NY2d 363, 371; Matter of Larkin, 9 NY2d 88, 92).

In the case now before us, a sympathetic reading of the will as a whole evidences that, notwithstanding the use of the word "stock” in the specific bequest to respondent, decedent intended to give her major capital investment in her residence to her relatives. First, the will’s dominant scheme is to leave the bulk of decedent’s estate to her relatives. The primacy of these beneficiaries is evidenced by the structure of the will; it was framed so that if decedent’s husband predeceased her, which he did, everything was left to her relatives. To this decedent made the exception of a gift of her "stock” to her financial advisor and his wife, the respondent. The gift also was limited; if neither respondent nor her husband survived decedent, the stock would pass through the residuary clause of the will to decedent’s named relatives, including appellant, or their issue.

Moreover, decedent owned a home when the will was framed, an interest that beyond dispute at that time was intended to pass to decedent’s relatives through the residuary clause of the will. When decedent sold her home and purchased an interest in a cooperative, the legal form of her home ownership changed, but her economic situation did not; she still had made a major capital expenditure to secure a living space, for a period, in essence, until she died or sold the interest. In fact, at the time of her death decedent’s interest in her residence was her single greatest asset, making up between one quarter and one third of her estate.

Thus it would turn decedent’s distributive scheme on its head, ignoring both the primacy of her relatives under the will and the limited nature of the gift to respondent, to hold that under these circumstances the bequest of "stock” exhibits decedent’s intent to make a gift of her interest in her residence to respondent. To the contrary, in view of the facts and circumstances surrounding the will’s drafting, read as a whole the document manifests decedent’s intent that her relatives take the interest in her residence. Also noteworthy is decedent’s modification of the term "stock” with the words "common or preferred,” which, while generally associated with business enterprises, are not used to classify interests in cooperative apartments. The term "common or preferred stock”, therefore, seen in the context of the entire will, refers only to interests in business corporations, and not to an interest in decedent’s home.

Indisputably, for many commercial purposes the law treats a shareholder’s interest in a cooperative apartment primarily as an interest in a corporation. Here, however, the intent of the decedent controls, not the technical definitions found in commercial law. The will manifests decedent’s intent to leave the interest in her home to her relatives, and to this intent the court must give effect.

Accordingly, the decree appealed from and the order of the Appellate Division brought up for review should be reversed, and the executor directed to distribute the proceeds of the sale of the cooperative stock to the residuary legatees, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone taking no part.

Decree appealed from and order of the Appellate Division brought up for review reversed, etc.