author: Dillon, J. Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Katherine Reynolds, Appellant.
    Argued February 5, 1988;
    decided March 31, 1988

      POINTS OF COUNSEL

      Noel Tepper for appellant.
    I. Defendant’s challenge to probable cause for issuance of a search warrant is based on State constitutional grounds and therefore, this court should adopt a stricter standard than imposed by the Fourth Amendment to the US Constitution. (California v Ciraolo, 476 US 207; People v Joeger, 111 AD2d 944; People v Gustafson, 101 AD2d 920;
      Beneficial Fin. Co. v Bond, 83 Misc 2d 9; People v Shepherd, 130 Misc 2d 284; Manson v Brathwaite, 432 US 98; Michigan v Mosley, 423 US 96; Cooper v Morin, 49 NY2d 69; People v Teicher, 73 AD2d 136, 52 NY2d 638; Oregon v Hass, 420 US 714.) II. Both trial and appellate courts erred in applying the doctrine of "open fields” to this case without an initial evidentiary hearing on factual allegations. (Oliver v United States, 466 US 170; Boyd v United States, 116 US 616; United States v Berrong, 712 F2d 1370, 718 F2d 1115; United States v Dunn, 766 F2d 880, 773 F2d 1236, 781 F2d 52, 782 F2d 1226; People v Abbott, 94 AD2d 831.) III. There was no probable cause for a warrant to search defendant’s house. (United States ex rel. Pugach v Mancusi, 310 F Supp 691, 441 F2d 1073, 404 US 849; United States v Thomas, 757 F2d 1359; United States v Ocampa, 492 F Supp 1211, 650 F2d 421.) IV. Items seized which were not described with particularity in the search warrant or found in plain view should have been suppressed. (Coolidge v New Hampshire, 403 US 443; People v Basilicato, 64 NY2d 103; United States v Rega, 496 F Supp 101; People v Martinelli, 117 Misc 2d 310.) V. According to the rules of statutory construction, defendant could not be charged under the Penal Law. (People v Fusco, 75 Misc 2d 981; Thielebeule v M/S Nordsee Pilot, 452 F2d 1230; Matter of Lo Bello v McLaughlin, 39 AD2d 404, 31 NY2d 782, 33 NY2d 755; People v Doe, 117 Misc 2d 35; People v Garthaffner, 115 Misc 2d 93; Sheridan Suzuki v Caruso Auto Sales, 110 Misc 2d 823; People v Mann, 113 Misc 2d 980.)

      Eugene Keeler, District Attorney (John E. Carter, Jr., of counsel), for respondent.
    I. The summary determination by the trial court of defendant’s motion for suppression was in all respects proper. (People v Glen, 30 NY2d 252, cert denied sub nom. Baker v New York, 409 US 849; People v Solimine, 18 NY2d 477; People v Cusumano, 108 AD2d 752; People v Ricks, 96 AD2d 788; People v Hernandez, 124 Misc 2d 840; People v Mitchell, 90 Misc 2d 463; Oliver v United States, 466 US 170; United States v Dunn, 480 US 294, 107 S Ct 1123; Hester v United States, 265 US 57; People v Abbott, 105 AD2d 1029.) II. The search of defendant’s property was reasonable, and did not violate her rights under the Constitutions of the United States and the State of New York. (Wong Sun v United States, 371 US 471; People v Harris, 62 NY2d 706; People v Plevy, 52 NY2d 58; People v Seidita, 49 NY2d 755; People v Vonderhyde, 114 AD2d 479; United States v Giordano, 416 US 505; People v

      Bigelow, 66 NY2d 417; People v McRay, 51 NY2d 594; Katz v United States, 389 US 347; Hester v United States, 265 US 57; Oliver v United States, 466 US 170.) III. There was probable cause for the search of defendant’s residence, and items found there were properly seized pursuant to the search warrant as evidence tending to demonstrate that an offense was committed. (People v Christopher, 101 AD2d 504, 65 NY2d 417; People v Sinatra, 102 AD2d 189; People v Hanlon, 36 NY2d 549; People v Dwork, 116 Misc 2d 411.) IV. Defendant was properly indicted for the Penal Law felony of criminal possession of marihuana in the first degree. (Matter of Parmeter v Feinberg, 105 AD2d 886.)
   OPINION OF THE COURT

Dillon, J.

The principal and narrow issue to be resolved on this appeal is whether an open field, bearing no manifestation of the owner’s subjective expectation of privacy other than is naturally provided by the land’s woods and contour, falls within the protection of the Search and Seizure Clause of this State’s Constitution (NY Const, art I, § 12). We hold that it does not, and that governmental intrusion upon or above such land without a warrant is not constitutionally prohibited.

Defendant owns a 103-acre farm in the Town of Gallatin. The State Police, acting on an anonymous tip, but without a warrant, surveyed defendant’s property from a helicopter flying in navigable airspace, and then entered the land on foot, looking for evidence of what had been described to them as a "commercial marihuana operation”. Both the overflight and the foot surveillance revealed the presence on the property of a greenhouse-type structure located approximately 150 feet from defendant’s house. The troopers observed that there were mature marihuana plants both within the structure and in the area surrounding it. The ground search revealed other marijuana plants in areas further removed from the structure. Photographs were taken of the structure, the marihuana plants, and the general area in which they were located. The photographs graphically depict the separation of that area by distance and terrain from defendant’s house. They also reveal that the "greenhouse” structure was little more than a frame. The roof and sides were only partially covered by transparent material, and its interior was fully viewable from either ground level on the property or from above. Based upon the police observations and the photographs, a search warrant was issued. Execution of the warrant resulted in seizure of 1,282 marihuana plants, processed marihuana, United States currency, a triple beam scale, peat humis and lengths of hose.

Defendant’s motion to suppress the evidence was denied without a hearing. County Court, finding that neither the helicopter search nor the foot search was unlawful, concluded that the search warrant was properly issued. Defendant entered a plea of guilty of the crime of criminal possession of marihuana in the first degree. The Appellate Division affirmed the conviction, and we now affirm.

On appeal to this court, defendant contends that her rights under article I, § 12 of the New York State Constitution were violated when the troopers made the warrantless aerial and ground level observations of her property. Relief is sought under the State Constitution for the obvious reason that neither search is proscribed by the Fourth Amendment of the United States Constitution. In California v Ciraolo (476 US 207), the Supreme Court found it permissible for the police, by overflight, to make warrantless observations of marihuana growing in a backyard which was surrounded by fences. From the holdings in United States v Dunn (480 US 294, 107 S Ct 1123, 1139) and Oliver v United States (466 US 170), the rule evolves that neither the erection of fences nor the posting of "No Trespassing” signs on otherwise open land will establish a legitimate expectation of privacy in the sense required by the Fourth Amendment (cf., Riley v State, 511 So 2d 282 [Fla], cert granted sub nom. Florida v Riley, — US —, 98 L Ed 2d 977 [a case in which the greenhouse was located 10-20 feet from the house and within a fence surrounding both buildings which had been posted with "Do Not Enter” signs]).

We need not address the applicability of those cases because defendant makes no claim here that her property was bounded by fencing, marked by signs warning against trespassing, or that she in any other way overtly demonstrated an expectation that members of the public should not enter upon the land. The defendant fails to establish a constitutionally protected privacy interest under the Fourth Amendment. Indeed, even the dissenters in Oliver agreed that if an owner has not marked the boundaries of his fields or woods in a way that informs passersby that they are not welcome, no objection will lie if the police enter upon his land and make observations (Oliver v United States, 466 US 170, 193-194 [Marshall, J., dissenting], supra).

In assessing whether the police conduct here violated defendant’s State constitutional rights, it is significant that the relevant language of article I, § 12 of the New York Constitution conforms with that of the Fourth Amendment of the United States Constitution. While both guarantee security against "unreasonable searches and seizures”, principles of federalism secure to a State the right to afford its citizens greater insulation from governmental intrusion than is provided under the Fourth Amendment (People v P. J. Video, 68 NY2d 296; People v Class, 67 NY2d 431; People v Johnson, 66 NY2d 398, 407). That power is cautiously exercised, however, because, as we have repeatedly said, the identity of language in the two clauses supports a policy of uniformity in both State and Federal courts (see, e.g., People v P. J. Video, supra, at 304; People v Johnson, supra, at 406; People v Gonzalez, 62 NY2d 386, 389-390; People v Ponder, 54 NY2d 160, 165).

The purpose of the State and Federal warrant clauses is to protect people from unreasonable government intrusion into their legitimate expectations of privacy (United States v Chadwick, 433 US 1, 7; People v Mercado, 68 NY2d 874). A protected privacy interest is established when a person has exhibited a subjective expectation of a privacy right which society recognizes as reasonable (Katz v United States, 389 US 347, 361 [Harlan, J., concurring]). We have made it clear that a warrantless search may only be challenged by one having a reasonable expectation of privacy in the place or object of the search (People v Rodriguez, 69 NY2d 159; People v Ponder, 54 NY2d 160, supra). Manifestly, persons have a reasonable expectation of privacy in their homes, and a protected privacy right is recognized in other confined areas as well (see, People v Mercado, 68 NY2d 874, 876, supra). Generally, however, conduct and activity which is readily open to public view is not protected. It is for that reason that we decline to declare as a matter of State constitutional law that an owner has a reasonable expectation of privacy in open fields and woods where no precautions have been taken to exclude the public from entry. Consequently, the warrantless observations of marihuana on defendant’s property provided probable cause for issuance of the search warrant.

In reaching this conclusion, we do not at all depart from our decision in People v Gleeson (36 NY2d 462), where we held that a police entry upon private property without a warrant constituted an illegal trespass requiring suppression of the derivative evidence. Unlike the police activity we see here, the trespass in Gleeson extended into the primary building of the landowner (see, People v Doerbecker, 39 NY2d 448, 452). Nor do we here decide whether this State’s Search and Seizure Clause (NY Const, art I, § 12) would be similarly applied if defendant’s lands were fenced or otherwise marked in a way which demonstrated an expectation of privacy. It is also sufficient for purposes of this decision to state that where ground level police intrusion is not unreasonable under our State Constitution, police overflight in navigable airspace is similarly permissible.

We next address defendant’s claim that County Court erred in failing to hold a hearing on her motion to suppress the seized evidence. The argument is without merit. While the affidavit of defendant’s counsel submitted in support of the motion includes conclusory assertions that the marihuana was found within the "curtilage” of the house, not in an "open field” but "hidden in enclosed areas”, it contains no sworn allegations of fact supporting those conclusions (see, CPL 710.60 [1]). The affidavit does not dispute the averments in support of the warrant application that the "greenhouse” structure was located 150 feet from the residence on the property and that the marihuana was discovered merely by walking the land. No claim is made that the location and terrain of the area searched is other than is graphically shown in the photographs submitted with the warrant application, and no facts are asserted which would support a finding that the area is in any way related to the intimate activities of the home.

In addition, in order for the defendant to prevail, it is not enough for her to show or prove that some of this evidence was illegally observed within an area entitled to Fourth Amendment protection. She must show that all of the evidence necessary to establish probable cause was obtained from such locations. In this instance, quite apart from the evidence observed in the greenhouse, evidence was found in what were obviously open areas to establish probable cause for the issuance of the warrant. Thus, the suppression court appropriately concluded that the motion should be summarily denied (see, CPL 710.60 [3] [bj; People v Gomez, 67 NY2d 843; see also, People v Glen, 30 NY2d 252, cert denied sub nom. Baker v New York, 409 US 849).

Finally, we agree with the Appellate Division, for reasons stated in its memorandum (124 AD2d 356), that defendant was properly charged under Penal Law § 221.30. We have reviewed defendant’s other claims of error and find them to be without merit.

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

Hancock, Jr., J.

(dissenting). The majority bases its affirmance on facts which have not been found after an evidentiary hearing or accepted as true by either lower court and, indeed, which those courts did not even consider relevant or necessary to their decisions. Instead of remitting the matter for a hearing, the majority simply makes two critical assumptions: (1) that defendant failed to post "no-trespassing” signs or to take other steps to exclude the public, and (2) that the premises searched were "open fields”. The court, thus, finds it unnecessary to answer the important questions presented by defendant on this appeal:

(1) whether the warrantless aerial surveillance of defendant’s premises, with the aid of binoculars, from a helicopter, hovering at an altitude of 600 feet, violated defendant’s reasonable expectation of privacy under the Fourth Amendment of the Federal Constitution, notwithstanding the Supreme Court’s decision in California v Ciraolo (476 US 207); or, whether it did so under article I, § 12 of the New York State Constitution; and

(2) whether no-trespassing signs or other indicia of efforts to exclude the public are relevant in ascertaining the extent of an owner’s legitimate expectation of privacy under our State Constitution — as contradistinguished from the Supreme Court’s "open fields” doctrine under the Fourth Amendment (see, Oliver v United States, 466 US 170; United States v Dunn, 480 US 294, 107 S Ct 1123) — in wooded lands, isolated rural areas, and in the buildings in the immediate vicinity of the home.

This case cannot be decided as the courts below sought to do —by simply applying the Supreme Court’s decisions in Ciraolo and Oliver. Those cases differ from this one, and, in any event, have not been ádopted by this court — nor do I think that they should be — as the measure of protection under our State Constitution. Moreover, the questions before us cannot be resolved under our State Constitution without a determination, at an evidentiary hearing, of the facts relevant to defendant’s claim of an expectation of privacy in the premises. Because the majority declines to remit the matter for a hearing and, instead, grounds its affirmance on factual assumptions not warranted by the record, I respectfully dissent.

I

The basis of the majority’s affirmance is different from that of either court below. County Court held no hearing and did not determine whether defendant’s greenhouse was in "open fields”. Instead, relying solely on federal law, that court concluded that both the helicopter surveillance and the initial portion of the foot search were lawful under Oliver regardless of what might be developed at a hearing. The Appellate Division, likewise, found the aerial surveillance and the foot search entirely permissible under federal law without addressing the state constitutional questions. Relying on Ciraolo, the court held that there could be no Fourth Amendment objection to the aerial observation of the greenhouse because there is "no reasonable expectation of privacy from such observation”, regardless of the location of the greenhouse in the "open fields” or the "curtilage”. Additionally, the court upheld the foot search on the authority of Oliver, without considering whether defendant had taken any measures to exclude the public from the premises or whether, for some other reason, she was justified in expecting her prémises to be treated as private. Now, in affirming the order below, the majority of this court makes its own factual determinations and, apparently, sees no ground for distinguishing the Supreme Court’s decisions or need to articulate the applicable State rules.

In the motion papers submitted in support of suppression, defendant’s counsel affirmed that "the location where the marihuana was found could not be seen from the road”, that it "was located within the 'curtilage’ of the house”, that it was "not in open view”, that it was not part "of an open field”, and that it was "if anything, hidden in enclosed areas”. These factual allegations, based on counsel’s personal inspection of the premises, are clearly sufficient to entitle defendant to an evidentiary hearing. They can hardly be characterized els conclusory; they are statements of fact which could be established at an evidentiary hearing.

The defense counsel’s assertions, uncontraverted by any factual statement in the reply papers of the Assistant District Attorney or in any other documents in the record, are, in fact, supported by the investigation reports, the application for the search warrant, and the warrant itself. The investigation report pertaining to the aerial surveillance refers to the greenhouse as being "a short distance away [emphasis added]” from the residence. The warrant application and the warrant state that the premises encompass the residence and the other outbuildings as one group, "including a greenhouse like structure with a removable roof and surrounding field, occupied & inhabited by Katherine Reynolds”. Moreover, the residence is described in a police memorandum as being in an "isolated location [emphasis added]” and "a considerable distance” from Columbia County Route No. 8. There can be no question that a hearing is required under our statutes and case law (CPL 710.60, 710.70; People v Millan, 69 NY2d 514, 521; People v Abbott, 94 AD2d 831).

The majority, however, without the benefit of any fact-finding process and relying solely on its de novo analysis of the record, has made its own factual determinations, apparently rejecting defense counsel’s affirmations. The majority states that defendant’s property bore "no manifestation of the owner’s subjective expectation of privacy other than is naturally provided by the land’s woods and contours,” that the "photographs graphically depict the separation of that area [where the marihuana was found] by distance and terrain from defendant’s house”, and that defendant’s conduct and activity were "readily open to public view.” Such fact finding is beyond the power of this court and, moreover, is not supported by the evidence. By no means do the photographs establish lack of efibrts to exclude the public, the absence of natural boundaries shielding the property from public view, the distance of the greenhouse from the residence, or that evidence was found in "obviously open areas”. Defense counsel’s unrefuted factual statements based on his own observations — that the marihuana plants were found within "the curtilage” of defendant’s house, not in an "open field”, but "hidden in enclosed areas” — raise questions of fact that must be resolved.

II

Nor, in my view, do the recent Supreme Court decisions provide a basis for the outright rejection of defendant’s claim of an expectation of privacy. First, the Supreme Court has held that the "open fields-curtilage” issue framed in Oliver is to be resolved by examining various factors including proximity of the area to the home, whether it is enclosed, how it is used, and what if any steps have been taken to render it private (United States v Dunn, 480 US, at —, 107 S Ct, at 1139, supra). Consideration of the factors outlined in Dunn obviously calls for fact finding.

Second, the Supreme Court in Ciraolo merely held that "naked-eye observation of the curtilage by police from an aircraft lawfully operating at an altitude of 1,000 feet” does not violate an expectation of privacy under the Fourth Amendment (California v Ciraolo, 476 US 207, 213, supra [emphasis added]). And in Dow Chem. Co. v United States (476 US 227), decided the same day, the court upheld the high altitude warrantless surveillance of a large outdoor manufacturing facility, with the use of sense enhancing equipment. The court explained that "the Government has 'greater latitude to conduct warrantless inspections of commercial property’ ” than of "an area immediately adjacent to a private home, where privacy expectations are more heightened” (id., at 237, n 4). Read together, Ciraolo and Dow certainly provide no clear authority for aerial surveillance of a greenhouse in the immediate vicinity of a residence, where the surveillance is conducted in a "hovering” helicopter, with the aid of binoculars, at a height of 600 feet.

Third, the Supreme Court precedents are not, in any event, controlling under our State Constitution. Indeed, there are good reasons why our State rules should be different (see, Oliver v United States, 466 US 170, 189 if [Marshall, J., dissenting]; California v Ciraolo, 476 US 207, 216, and 223-225 [Powell, J., dissenting], supra; see also, discussion in 1 LaFave, Search and Seizure § 2.3 [g], at 421-424; § 2.4 [a], at 428-429 [2d ed]).

Ill

As to both the warrantless aerial and foot searches, a hearing should be ordered to determine whether defendant had a protectable expectation of privacy, under either State or Federal law, in the areas surveilled (see, People v Perel, 34 NY2d 462, 466; People v Mercado, 68 NY2d 874, 875-876; Katz v United States, 389 US 347, 361 [Harlan, J., concurring]). At the hearing, the suppression court should consider, among other things: the nature, use and location of defendant’s property; whether the property was rural or isolated and the extent to which it was secluded or otherwise hidden from public view; the distance of the property from public thoroughfares or air routes and the volume and type of related traffic; the use of signs or other devices to warn or exclude trespassers; the distance of the area searched from the residence; and the manner in which the aerial and foot searches were conducted, including their scope and duration, what, if any, sense enhancing devices were employed, and the over-all degree of intrusiveness on the owner’s property and privacy (see, People v Farenga, 42 NY2d 1092 [defendant’s activities overt]; People v Doerbecker, 39 NY2d 448, 452 [defendant’s efforts at seclusion]; People v Gleeson, 36 NY2d 462 [officers’ trespass]; People v Spinelli, 35 NY2d 77 [use of binoculars]; United States v Allen, 675 F2d 1373 [frequent Coast Guard overflights]; United States v Broadhurst, 612 F Supp 777 [defendant’s property secluded]; National Org. for Reform of Marijuna Laws v Mullen, 608 F Supp 945 [observation from hovering helicopter]; United States v Taborda, 491 F Supp 50 [use of telescope]; see, discussion of factors employed in Federal courts, United States v Bassford, 601 F Supp 1324, 1330).

For these reasons, I am persuaded that under governing state and federal law the order should be reversed and the matter remitted to County Court for an evidentiary hearing.

Chief Judge Wachtler and Judges Simons and Bellacosa concur with Judge Dillon; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion in which Judges Kaye and Alexander concur.

Order affirmed.

      . This is no less true for the statement that the greenhouse "was located within the 'curtilage’ of the house”. This assertion about the greenhouse is the equivalent of stating that it was in the yard near or belonging to the house — as, indeed, appears to have been the case. "Curtilage” is defined in Webster’s New 20th Century Dictionary as "in law, a yard, garden, enclosure, or field near and belonging to a dwelling”.

      . See, Riley v State (511 So 2d 282 [Fla], cert granted sub nom. Florida v Riley — US —, 98 L Ed 2d 977) where the Florida Supreme Court, distinguishing Ciraolo and Dow, held that the defendant’s privacy rights were violated where an aerial surveillance of a greenhouse on defendant’s property was conducted from a helicopter hovering at about 400 feet. We agree with that court that it is difficult to "believe that society is prepared to say that individuals relinquish all expectations of privacy in their residential yards merely because they have not taken the extraordinary steps required to protect against all types of aerial surveillance” (id., at 288-289 [emphasis in original, footnote omitted]).
      Significantly, that court had the benefit of the suppression court’s factual findings after a full evidentiary hearing.

       Designated pursuant to NY Constitution, article VI, § 2.


source: Caselaw Access Project

author:
Simons, J.
      Bellacosa, J.

license: Public Domain

text:
    In the Matter of Elizabeth Holtzman, Appellant, v Richard Goldman, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Argued February 8, 1988;
    decided April 26, 1988

      POINTS OF COUNSEL

      Elizabeth Holtzman, District Attorney (Janet M. Berk and Barbara D. Underwood of counsel), appellant, pro se.

    I. This court has jurisdiction to prohibit the trial court from enforcing its unauthorized trial order of dismissal. (Matter of Jaffee v Scheinman, 47 NY2d 188; People v Harding, 101 AD2d 221; Matter of Lipari v Owens, 70 NY2d 731; People v Tineo, 64 NY2d 531; People v Sawyer, 57 NY2d 12, 459 US 1178; People v Arroyave, 49 NY2d 264; Lockett v Montemango, 784 F2d 78; Matter of Lockett v Juviler, 65 NY2d 182; Moore v Foti, 546 F2d 67; People ex rel. Leventhal v Warden, 102 AD2d 317.) II. The court lacked the power to purport to commence a trial when the People were not ready to proceed. (People v Di

      Falco, 44 NY2d 482; People ex rel. Doe v Beaudoin, 102 AD2d 359; Matter of Hassan v Magistrates’ Ct., 20 Misc 2d 509, 10 AD2d 908, 364 US 844; People v Mendez, 125 Misc 2d 1011; People v Worley, 66 NY2d 523.) III. The unilateral commencement of a trial is an inappropriate sanction for the People’s failure to be ready. (People v Douglass, 60 NY2d 194; Matter of Veloz v Rothwax, 65 NY2d 902; People v Worley, 66 NY2d 523; People v Sharpe, 115 AD2d 996; People v Ronzetti, 88 AD2d 982; People v Friscia, 70 AD2d 709; Matter of Lipari v Owens, 70 NY2d 731.) IV. The court’s conduct was the functional equivalent of a calendar control dismissal in violation of People v Douglass (60 NY2d 194 [1983]).

      Robert Abrams, Attorney-General (Darren O’Connor, O. Peter Sherwood and Lawrence S. Kahn of counsel), for Richard Goldman, respondent.
    I. The article 78 proceeding is barred by the four-month Statute of Limitations under CPLR 217. (Sega v State of New York, 60 NY2d 183; Matter of De Milio v Borghard, 55 NY2d 216; Matter of Edmead v McGuire, 67 NY2d 714; Lenihan v City of New York, 58 NY2d 679; Gertler v Goodgold, 107 AD2d 481, 66 NY2d 946; Matter of Lubin v Board of Educ., 60 NY2d 974, 469 US 823; Matter of Feldman v Matthews, 32 Misc 2d 996.) II. An article 78 proceeding does not lie to challenge the trial court’s actions. (Matter of State of New York v King, 36 NY2d 59; Matter of Morgenthau v Erlbaum, 59 NY2d 143, 464 US 993; Matter of Hennessy v Gorman, 87 AD2d 29, 58 NY2d 806; Matter of Gold v Gartenstein, 54 NY2d 627; Matter of Morgenthau v Gold, 117 AD2d 386, 69 NY2d 735; Matter of Morgenthau v Altman, 58 NY2d 1057; People v Jackson, 111 NY 362; Matter of Anthony M., S3 NY2d 270; People v Singleton, 41 NY2d 402; People v Matz, 23 NY2d 196.)
   OPINION OF THE COURT

Simons, J.

This appeal questions whether a Judge presiding over a criminal prosecution has the power to dispose of the matter before him by entering a nonappealable trial order of dismissal on the merits even though no evidence is presented and the merits of the case have not yet been heard. The question arises because on the day this case was scheduled for trial, the People were unable to locate the complaining witness and requested a further adjournment. The court denied the request, ordered the People to start trial immediately and when they were unable to do so, dismissed the charges and discharged the defendant. We hold that the court exceeded its power when it did so and that prohibition is available to correct its order.

I

In August 1985, Mahmoud Shahhosseini, an Iranian national undergoing medical treatment in New York, paid defendant Richard Babayan 36,250 West German deutschmarks in exchange for Babayan’s check of $13,595.50. When Shahhosseini presented the check, payment was refused. Shahhosseini asked defendant to make the check good. He claims that defendant refused, telling him he was a member of the Iranian secret police and threatening to retaliate against him if he pursued the matter with the authorities. Disregarding the warning, Shahhosseini filed a complaint with the police and they arrested defendant on November 7, 1985.

The case was adjourned with defendant’s consent or approval until an indictment was returned on May 30, 1986 charging him with second degree grand larceny and second degree criminal possession of a forged instrument. The People answered ready July 1, pretrial proceedings followed and defendant answered ready on October 16. Shahhosseini was in Iran at that time and defendant consented to an adjournment until November 10, 1986 to give the People an opportunity to produce him.

When the case was called on November 10, the People advised the court that they had not located complainant, although his family had been contacted and had told the District Attorney that he was "interested in prosecuting th[e] case.” Defense counsel then advised the court that his client believed the complainant had been jailed in Iran on drug charges. The claim was false, but when the People were unable to disprove it at the November 10 proceeding, the trial court expressed its belief that there was no extradition treaty between the United States and Iran, noted that defendant was a resident of Washington, D.C., who had been compelled to appear in Brooklyn several times in response to the charges, and concluded that he should not be required to appear further based on the "vague hopes” that the People would produce the complainant in the future. The court recognized that it could not dismiss the indictment, but suggested that it would order an immediate trial if defendant would waive his demand for suppression hearings and for a jury trial. Defendant quickly did so.

The People protested, stating that they were "not prepared to go to trial” and that the court’s actions constituted an improper attempt at calendar control (see, People v Douglass, 60 NY2d 194). The court nevertheless dismissed the indictment, stating that its dismissal was founded upon "basic equity” principles, the People’s "failure to produce * * * the complaining witness, after being ordered to do so and being given a month’s adjournment to do so,” and the prosecution’s inability to proceed with its case. On November 18, 1986, the court executed an order which recited that the dismissal was ordered pursuant to CPL 290.10. That section provides that "[a]t the conclusion of the people’s case or at the conclusion of all the evidence, the court may * * * upon motion of the defendant, * * * issue a 'trial order of dismissal’ ” (CPL 290.10 [1] [a]).

The People subsequently instituted this article 78 proceeding in the Appellate Division seeking to prohibit enforcement of the trial court’s order. The Appellate Division found prohibition appropriate to review the trial court’s actions but held that the trial court had exercised its discretion properly in refusing a further adjournment because the People failed to establish that they exercised due diligence in attempting to locate the complainant.

On this appeal, the People acknowledge that the trial court had the power to grant or deny a further adjournment (see, People v De Rosa, 42 NY2d 872). They question only its authority to enter a nonappealable trial order of dismissal, purportedly based upon a review of the merits of their case, when they did not present any evidence.

II

When a petitioner seeks relief in the nature of prohibition pursuant to CPLR 7803 (2), the court must make a two-tiered analysis. It must first determine whether the issue presented is the type for which the remedy may be granted and, if it is, whether prohibition is warranted by the merits of the claim.

A

Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court — in cases where judicial authority is challenged — acts or threatens to act either without jurisdiction or in excess of its authorized powers (Matter of Rush v Mordue, 68 NY2d 348, 352; Matter of Steingut v Gold, 42 NY2d 311, 315; Matter of Dondi v Jones, 40 NY2d 8, 13). The inquiry is not limited to whether the court has subject matter jurisdiction over the proceeding; "prohibition is [also] available * * * to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction” (La Rocca v Lane, 37 NY2d 575, 578-579, cert denied 424 US 968; see also, Matter of Proskin v County Ct., 30 NY2d 15, 18; see generally, Comment, Writ of Prohibition in New York — Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76, 76-84; Wolfram, "Ancient and Just” Writ of Prohibition in New York, 52 Colum L Rev 334, 338-353). Thus, we have entertained prohibition to determine whether the court had exceeded its undoubted powers to control the conduct of counsel in the courtroom (see, La Rocca v Lane, supra) or to rule upon the sufficiency of Grand Jury evidence (Matter of Proskin v County Ct., supra).

Prohibition will not lie, however, simply to correct trial errors (Matter of Rush v Mordue, supra, at 353). Although the distinction between legal errors and actions in excess of power is not always easily made (see, La Rocca v Lane, supra, at 580), abuses of power may be identified by their impact upon the entire proceeding as distinguished from an error in a proceeding itself proper (Matter of State of New York v King, 36 NY2d 59, 64; see, e.g., Matter of Rush v Mordue, supra [double jeopardy]; Matter of Steingut v Gold, 42 NY2d 311, supra [territorial jurisdiction over crime]).

Finally, even if prohibition lies and an act in excess of power is perceived, the remedy is not granted as of right but only in the sound discretion of the reviewing court (Matter of Rush v Mordue, 68 NY2d 348, 354, supra; Matter of Dondi v Jones, 40 NY2d 8, 13, supra; La Rocca v Lane, 37 NY2d 575, 579, supra). The courts are most reluctant to entertain prohibition when doing so interferes with normal trial and appellate procedures by permitting collateral review of matters which could be cured upon direct appeal (Matter of Rush v Mordue, supra, at 353; Matter of State of New York v King, supra, at 62-63; Matter of Nigrone v Murtagh, 36 NY2d 421, 426). The appealability or nonappealability of an issue is not dispositive, however (see, e.g., Matter of State of New York v King, supra [prohibition found not to lie even though trial court’s decision to afford an unauthorized number of peremptory challenges to defendant might be insulated from appellate review]).

Applying these rules, the People are entitled to review of their claim in this proceeding. The trial court’s dismissal here, if erroneous, was not merely a legal mistake, it related to the power of the court and affected the entire proceeding in the most conclusive manner; it terminated the case. While the court based its dismissal on insufficient evidence it, in effect, found the People in default and sua sponte dismissed the indictment, and the question is whether it had the power to enter a default in a criminal proceeding.

B

The power of the trial court to deny the People further adjournment is not disputed; the error lies in the corrective action it took after it did so. Trial courts are vested with statutory power to dismiss indictments, of course, but the power is not unlimited. The court "has power to do for some purposes what it lacks power to do for others” (Matter of Proskin v County Ct, 30 NY2d 15, 20, supra). Thus, it is no answer to assert that because the court can dismiss an indictment in some circumstances its improper exercise of that power in others was merely trial error. The Criminal Procedure Law carefully specifies the instances in which the Legislature has granted trial courts the power to dismiss and none is applicable here. The petition should, therefore, be granted.

First, it should be noted CPL 290.10 (1) (a), the statute upon which the trial court’s dismissal was based, speaks only of dismissal "upon motion of the defendant” at "the conclusion of the people’s case or at the conclusion of all the evidence”. The plain language of the statute manifests the Legislature’s intention only to grant the court the power to rule on insufficiency, not the power to terminate the proceedings by default.

The history concerning People’s appeals also suggests that the court lacked statutory authority to act as it did. When the Criminal Procedure Law was enacted, the Legislature, for the first time, attempted to authorize the People to appeal trial orders of dismissal (see, CPL 290.10, 450.20 [L 1970, ch 996]). That attempt failed when we held that such appeals were barred by double jeopardy concerns (see, People v Brown, 40 NY2d 381, cert denied 433 US 913). In response, the Legislature amended the statute to limit the appealability of trial orders of dismissal to instances where double jeopardy does not proscribe further review (see, CPL 290.10 [1] [L 1983, ch 170, § 1]; 450.20 [L 1983, ch 170, § 3], and the Practice Commentaries thereto, McKinney’s Cons Laws of NY, Book 11 A). Thus, if a dismissal in a particular case is not barred by double jeopardy concerns, one would expect that the Legislature, which had shown its interest in extending the People’s power to seek review of adverse trial court decisions, would have provided for an appeal from the dismissal. In cases such as this, jeopardy does not attach because a trial was never commenced (CPL 40.30 [1] [b]). If that be so, there was no constitutional impediment to the Legislature’s authorizing the People to appeal. Presumably, it did not do so because it did not intend to give trial courts the power to enter nonappealable trial orders of dismissal when no trial has been started.

Furthermore, the court’s actions cannot be upheld as a permissible pretrial dismissal of the indictment. Statutory authorization for such dismissals is found in CPL 210.20 and none of its provisions supports the trial court’s action in this case. Arguably, the transcript of the November 10 proceedings could be read as indicating that the court dismissed in the interest of justice (subd [1] [i]), but such an interpretation is dispelled by the court’s written order dismissing the case on the merits. Moreover, if the court intended to dismiss on interest of justice grounds, it was required to consider the 10 factors set forth in CPL 210.40 and make clear which factor served as the basis for its dismissal (see, CPL 210.40; People v Rickert, 58 NY2d 122, 128). It did not do so. Finally, notwithstanding some of the court’s comments, the dismissal cannot be construed as based on speedy trial principles (subd [1] [g]). The court never specified that it was dismissing on constitutional (CPL 30.20; Barker v Wingo, 407 US 514, 530) or statutory speedy trial grounds (CPL 30.30), and it is clear that the People’s time to prosecute defendant had not expired under either theory.* **

Moreover, an examination of the statutory scheme manifests the Legislature’s attempt to avoid judicial interference by providing that before an accusatory instrument is dismissed prior to presentment of evidence, the prosecutor should have advance notice that dismissal is being contemplated, followed by a chance to explain the circumstances leading to delay and, if dismissal is granted, an opportunity for appellate review so that arbitrary action by the trial court can be remedied (see, CPL 210.45). None of these safeguards was afforded to the District Attorney in this case.

Nor did the court have the inherent power to dismiss the prosecution (see, People v Douglass, 60 NY2d 194, supra). In Douglass we considered several unrelated cases, argued together in this court, in which trial orders of dismissal had been entered after the People failed to proceed. The prosecutions involved misdemeanor complaints and, by statute, such complaints must be converted into informations before trial can commence. This is done by annexing to the complaints affidavits executed by the complaining witnesses. In the Douglass cases, the People had failed to obtain affidavits from the complaining witnesses, omissions analogous to failing to produce the complaining witness for trial in this case. We reversed orders dismissing the complaints, concluding that courts did not have statutory power to dismiss the subject proceedings and that they had never possessed inherent power to do so, even in the interests of justice. Indeed, we noted that for many years the Legislature resisted giving the judiciary power to dismiss an accusatory instrument, even on interest of justice grounds, notwithstanding its recognition that prosecutors often refused unjustly, or failed through inadvertence, to bring a case to trial for extended periods of time (id., at 202-204).

The reluctance to recognize such broad inherent powers can best be understood when one compares the dismissal powers of courts presiding over criminal prosecutions and similar powers held by courts in civil proceedings. In civil matters, particularly those involving private litigants, the State’s interests are largely administrative and relate solely to the effective operation and management of the judicial system. Even so, the courts have no inherent power to dismiss civil cases for failure to proceed and cannot do so in the absence of legislation (see, Cohn v Borchard Affiliations, 25 NY2d 237, 248; see, CPLR 3216). By contrast, criminal proceedings implicate more substantial concerns. District Attorneys are members of the executive branch of government, constitutional officers charged with the responsibility for prosecuting offenders in the county they represent and possessing broad discretion in determining when and in what manner to do so (see generally, County Law § 700 [1]; Matter of Schumer v Holtzman, 60 NY2d 46, 50; People v Di Falco, 44 NY2d 482, 486). A court’s precipitous dismissal of a criminal proceeding not only raises separation of powers concerns but also may have serious practical consequences, particularly when related proceedings or investigations are involved, and may directly affect the District Attorney’s ability to exercise those powers.

It should be emphasized that the trial court was not helpless here. As suggested in People v Douglass (60 NY2d 194, 200, supra), the court could have denied the adjournment and, if the prosecutor was unable to proceed, placed the case on a reserve calendar to be restored only when ready for trial or dismissed when the speedy trial period had elapsed (see, e.g., Matter of Morgenthau v Gold, 69 NY2d 735). Alternatively, petitioner suggests that the court could have exercised its contempt powers if the People failed to use reasonable efforts to produce complainant. It also could have entertained a motion for dismissal in the interest of justice (see, People v Henriquez, 68 NY2d 679; People v Rickert, 58 NY2d 122, supra; People v Wingard, 33 NY2d 192). Indeed, the court’s references to "basic equity” suggest that interest of justice indeed motivated it in this case. Its order was not based on appealable interest of justice grounds, however. Instead, it entered a nonappealable trial order of dismissal on the merits when there had been neither a trial nor consideration of the merits, and it was without power to do so.

Finally, addressing the dissent, no casual reader should be left believing that this court really has "routinized” the extraordinary remedy of prohibition, or impaired the authority or discretion of trial courts or the Appellate Division to deal with adjournments or prosecutorial abuses. The court does neither.

First, this decision does not in any sense render the extraordinary remedy of prohibition routine or ordinary. Both the extraordinary nature of prohibition and its appropriate use here — where the trial court has acted outside its power in terminating a criminal prosecution — are well illustrated by contrasting this case with Matter of State of New York v King (supra) (dissenting opn, at 578). In King, prohibition was denied to review a ruling during trial allowing 30 rather than 20 peremptory challenges. As former Chief Judge Breitel wrote: "[n]o trial can be conducted while appellate courts by their own protracted proceedings review the alleged errors which may arise preliminary to the trial, during the trial, and before the verdict and judgment. Such a system is neither civilized nor even rational. And most certainly it would make speedy trial a legal impossibility.” (36 NY2d, at 63-64.) Here, by contrast, the trial court has terminated a prosecution by entering a nonappealable order of dismissal where it has no inherent (People v Douglass, 60 NY2d 194, supra) or statutory (see, CPL 210.20) power to do so. Nor can statutory power for the dismissal be found under CPL 290.10, upon which the dismissal ostensibly was based. Dismissal under CPL 290.10 can be made only upon defendant’s motion; defendant did not seek dismissal. Dismissal in this singular case was plainly and simply the trial court’s reaction to the People’s expression on November 10 that they could not produce the complainant.

Second, it should be made perfectly plain that the court’s decision does not divest Supreme Court of authority or discretion respecting adjournments or otherwise. Nor does it elevate the prosecutor or approve prosecutorial ploys or disregard of a defendant’s rights. Only the extreme measure of dismissal of a criminal prosecution is in issue — not any of the panoply of other measures available to courts for dealing with abuses respecting adjournments or improper conduct of any sort. This court in no way denies or curtails even the extreme measure of dismissal of a criminal prosecution to redress the People’s abuse of adjournments. Dismissal in the interest of justice may well be appropriate for just such abuses; indeed, "the attitude of the complainant” is specifically identified among the factors to be considered on a motion to dismiss in furtherance of justice (CPL 210.40 [1] [i]). But when a trial court dismisses a prosecution in the interest of justice — as the trial court here appears to have done, citing "basic equity” principles, and noting the People’s "failure to produce * * * the complaining witness, after being ordered to do so and being given a month’s adjournment to do so” — it must follow CPL 210.40, stating the basis for its ruling and entering an appeal-able order. The trial court’s failure to follow the statute is what requires reversal here, a determination involving nothing more than a straightforward application of settled law.

Accordingly, the judgment of the Appellate Division should be reversed and the petition granted.

Bellacosa, J.

(dissenting). I would affirm the Appellate Division’s denial of prohibition. The extraordinary writ does not lie and should not discretionarily issue in the first instance from this court, even if it did lie.

Former Chief Judge Charles D. Breitel warned in his unanimous opinion in Matter of State of New York v King (36 NY2d 59, 65): "Were the court to conclude otherwise than to reject this unsound and novel extension of the extraordinary ancient remedies of prohibition and mandamus, it might be a credit to man’s ingenuity but a disabling discredit to the jurisprudence.” His prophecy has come to pass. The majority’s holding remakes the writ of prohibition into a quite ordinary implement for interference in the fair and neutral adjudication of criminal prosecutions. Functionally, it substitutes the prosecutor, already a very powerful official and one of the partisan litigants, for the Trial Justice as the person in charge of the progress of a case in court, in part, under the guise of the separation of branches doctrine.

This is a fairly simple theft case in which the victim has for all practical purposes disappeared. After 10 adjournments to both the People and the defense, the Trial Justice gave one more adjournment to the People because the complaining victim/witness was unavailable. The court granted the People four more weeks and specifically ordered them to produce the victim in this one-witness case "for trial on the adjourned date”. The parties appeared on the scheduled calendar date but the People failed to produce the complaining witness. The Assistant District Attorney stated that he was unaware of the witness’s specific whereabouts in Iran, that his office had not contacted the witness since the last appearance date, and he offered no assurance of producing the witness in the future. The Trial Justice then took concededly appropriate and lawful action, denying the People another adjournment. The next natural consequence, dismissal of the case, is what now lies at the heart of our diverging views of the correct decision in this case.

The Assistant District Attorney objected to the dismissal asserting, despite his inability to proceed as previously ordered, that the court was acting for calendar control purposes. Trial Justice Goldman explicitly responded that "[t]he purpose of this dismissal has nothing to do with calendar control”, but that it was based upon the People’s failure to produce the complaining witness despite being ordered and given a reasonable opportunity to do so; the absence of even a “scintilla of information concerning the complaining witness’ whereabouts”; the defendant’s perfect record of attendance on each adjourned date; and, most importantly, after refusing a further adjournment based upon basic equity and an exercise of discretion, the People’s failure to proceed with the trial. Justice Goldman subsequently executed an order dismissing the case under CPL 290.10 based upon the People’s failure to establish a legally sufficient case. For the majority to render the trial court impotent in the face of this defiant prosecutorial challenge to the court’s directives in its effort to secure defendant’s rights is wrong; to arm that prosecutor with the weapon of prohibition magnifies the affront.

The People argue that the trial court’s dismissal is susceptible to prohibition. A majority of this court, agreeing with the prosecution, overrules as a matter of law the sound and separate discretion respectively exercised by the Trial Justice and by the Appellate Division. People v Douglass (60 NY2d 194), a set of cases barring wholesale dismissals of cases for openly declared calendar management purposes on a direct appeal track to this court, is the cornerstone of the majority holding. Apart from its evident procedural and substantive distinctions of a fundamental nature, that very case correspondingly held “that trial courts are vested with substantial power to control their calendars and our opinion today should not be read as holding, for example, that a court is obligated to grant every adjournment requested by a prosecutor simply because statutory or constitutional time limitations have not expired” (supra, at 200). Douglass itself therefore cogently refutes the assertion that all a trial court may do, when stymied by a prosecutor, is to shelve the defendant on something called a reserve calendar — a procedure itself nowhere defined or authorized in New York’s Criminal Procedure Law provisions. Unlike People v Douglass (60 NY2d 194, supra), in the present case the court exercised an express statutory power (whether correctly or incorrectly is irrelevant to the “power” fulcrum of prohibition) to dismiss the indictment (CPL 290.10).

The anomaly of the majority’s reliance on People v Douglass (supra) is that it saps that critical part of Douglass which expressly reserves to trial courts the power to really rule on adjournments within the usual discretionary standards, reserved to an independent judicial officer (see, Balogh v H.R.B. Caterers, 88 AD2d 136, 141-144 [Titone, J.]). The result of the majority’s holding, despite what it tries to say to the contrary, will give new meaning to the decision on a prosecutor’s application announced by a trial court, "Adjournment denied”. In the well of a trial courtroom, that announcement will be met at the very least by diffidence and then by departure from the courtroom. Nothing could be more vain or contrary to the announced decision especially in the light of fair forewarning and opportunity to prepare which had been given to the People. If the trial court tries to do anything meaningful about this disturbing denouement to its ruling, the District Attorney will simply go to the Appellate Division which, now also stripped of its supervisory discretion by the holding here, must grant the now-routinized writ of prohibition. This holding unsettles the long-standing "extraordinary” and "discretionary” components of the prohibition remedy.

This is not only the first time that the Douglass precedent has been extended into the prohibition area, but it also directly contradicts the only other existing circumstance where this court considered that precise question — the availability and application of article 78 to Douglass-like problems (Matter of Morgenthau v Gold, 69 NY2d 735, revg 117 AD2d 386). There, the court unanimously rejected the availability of such relief to the prosecutor on the ground of no clear legal right.

The trial court did not exceed either its jurisdiction or authorized power even if we accept only arguendo that it may have erred in the application of CPL 290.10 (Matter of Rush v Mordue, 68 NY2d 348, 353; Matter of Dondi v Jones, 40 NY2d 8, 13; La Rocca v Lane, 37 NY2d 575, 578-579; Matter of State of New York v King, 36 NY2d 59, 62, supra). Jurisdiction includes the power to err (Fauntleroy v Lum, 210 US 230, 237 [Holmes, J.]; Matter of Farmland Dairies v Barber, 65 NY2d 51, 55).

This case is not what prohibition, up to now, has been all about. "A writ of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity” (Matter of Morgenthau v Erlbaum, 59 NY2d 143, 147 [emphasis supplied]), and "is never available merely to correct or prevent trial errors of substantive law or procedure, however grievous” (La Rocca v Lane, 37 NY2d 575, 579, supra). "Even in those rare circumstances where an arrogation of power [this case does not nearly qualify for that ranking] would justify burdening the judicial process with collateral intervention and summary correction, the writ of prohibition nonetheless does not issue as of right, but only in the sound discretion of the court” (Matter of Rush v Mordue, 68 NY2d 348, 354, supra [emphasis supplied]).

The precedents firmly support Justice Goldman’s trial discretion, exercised in an evenhanded way towards both parties. Thus, his conceded power to deny the People’s additional request for an adjournment, having previously set the case down for trial, clearly and necessarily included the power to effectuate his earlier order to proceed with the trial. We just recently restated, against an asserted right-to-counsel interest of a defendant, that "[determinations regarding questions of the timely and proper trial of a case are squarely within the power and jurisdiction of the trial court” (Matter of Lipari v Owens, 70 NY2d 731, 733 [emphasis added]). By denying prohibition to defendants in such circumstances and now by mandating its issuance here to prosecutors, the majority surely seem to be applying a double standard (see also, Matter of Jacobs v Altman, 69 NY2d 733, 735 [prohibition not available to defendant to review unauthorized interim probation supervision]).

The District Attorney, in effect, argues nevertheless that the trial court had "options” other than ordering the case to trial and dismissing for failure in that regard. Thus it is argued, and a majority of this court agrees, the court exceeded its "power” by ordering the case to trial. The proffered alternatives include putting the case on a so-called reserve docket, or directing the People again to become ready for trial, or again to take specific steps to locate the complainant and then perhaps to hold the Assistant District Attorney in contempt for failure to comply with these instructions. But all these options bespeak discretion, not competence to rule. Prohibition does not run against discretion but pursuant to discretion.

The majority even implies that an interest of justice dismissal would lie as a remedy for what transpired here and would probably be upheld based on the record in this case. That being so, the District Attorney should not prevail in a prohibition setting.

The majority also unfairly criticizes the trial court for "precipitous” and "arbitrary” conduct. Based on the record before us, the trial court gave fair notice and ample time and opportunity to the prosecutor to get ready for a case expressly set down "for trial”. The prosecutor sat on that notice and opportunity.

"Adjournment”, after all, simply means postponement or to put off to another day. Prior to this decision, an adjournment was not permitted for an unavailable witness unless the requesting party showed "diligence and good faith” in trying to acquire the witness’s attendance (People v Foy, 32 NY2d 473, 478; see also, People v Jackson, 111 NY 362, 367). The majority opinion converts adjournments into mandatory ministerial acts requiring Trial Justices to tack on further repeated delays in criminal cases. If the trial court should boldly and neutrally exercise the unique judicial function of denying the adjournment (a power expressly reserved to it by People v Douglass, 60 NY2d 194, supra), then the District Attorney prevails anyway over the prejudiced party, the defendant, and over the court because the case must nevertheless be postponed or put off to another day. This is surely ironical.

Accordingly, I vote to affirm.

Judges Kaye, Alexander, Hancock, Jr., and Dillon concur with Judge Simons; Judge Bellacosa dissents and votes to affirm in a separate opinion in which Chief Judge Wachtler concurs.

Judgment reversed, without costs, and petition granted.

      . The court’s dismissal was not final until it issued its order on November 18, 1986. The four-month Statute of Limitations applicable in article 78 proceedings (CPLR 217) thus did not accrue until that date. This proceeding, commenced March 18, 1987, is therefore timely.

      . [3] Not all dismissals are subject to review by way of an article 78 proceeding, of course. Prohibition will not lie to address pretrial dismissals of indictments entered pursuant to CPL 210.20, or dismissals on the merits pursuant to CPL 290.10 (1) (b) rendered after the jury returns a guilty verdict, for such dismissals are reviewable by way of direct appeal (CPL 450.20 [1], [2]). Nor will prohibition lie to assess the propriety of dismissals rendered after the People choose to go forward with their evidence, but before a verdict is reached (CPL 290.10 [1] [a]), for any issue remaining in the case is rendered academic by the fact that further prosecution of the defendant is proscribed by double jeopardy principles (Tibbs v Florida, 457 US 31, 41; People v Brown, 40 NY2d 381, 391, cert denied 433 US 913).

      . CPL 210.20 (1) provides:
      "1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that:
      "(a) Such indictment or count is defective, within the meaning of section 210.25; or
      "(b) The evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense; or
      "(c) The grand jury proceeding was defective, within the meaning of section 210.35; or
      "(d) The defendant has immunity with respect to the offense charged, pursuant to section 50.20 or 190.40; or "(e) The prosecution is barred by reason of a previous prosecution, pursuant to section 40.20; or
      "(f) The prosecution is untimely, pursuant to section 30.10; or "(g) The defendant has been denied the right to a speedy trial; or "(h) There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged; or
      "(i) Dismissal is required in the interest of justice, pursuant to section 210.40.”

      . Matter of Lipari v Owens (70 NY2d 731, 733), People v Foy (32 NY2d 473, 478) and People v Jackson (111 NY 362, 367), cited by the dissent, have no bearing on this case.
      In Lipari, the action challenged by prohibition was the trial court’s order requiring defendant to obtain new counsel after 18 adjournments had been granted because of counsel’s unavailability. The case involved neither the court’s power to dismiss, nor the separation of powers problems implicated by dismissal. In holding that prohibition did not lie, we noted that the court’s action was reviewable on appeal. The court’s dismissal of the prosecution in this case, however, is insulated from appellate review.

        Foy and Jackson addressed the court’s authority to deny adjournments, but the discretionary power of the court to grant or deny an adjournment is not disputed. The question is what power the court had once it had denied the requested adjournment. Neither Foy nor Jackson shed light on the answer.

      . The Morgenthau case relied upon by the dissent is inapposite to the case before us. In Morgenthau we denied prohibition, implicitly finding that the trial court had the discretionary power to place a case not ready for trial on the reserve calendar, as we suggested in People v Douglass (60 NY2d 194), and also had the discretionary power to deny a motion by the District Attorney to restore the case to the active calendar until the People were ready to proceed to trial.

       Designated pursuant to NY Constitution, article VI, § 2.


author: Kaye, J.

text:
    Cherylan Reed et al., Respondents, v Federal Insurance Co. et al., Appellants, et al., Defendant.
    Argued March 16,1988;
    decided April 26, 1988

      POINTS OF COUNSEL

      Francis J. Holloway and Michael Jon Longstreet for appellants.
    I. The courts of this State should not permit the use of a straw party to perpetrate insurance fraud by arson. (Krupp v Aetna Life & Cas Co., 103 AD2d 252; Winter v Aetna Cas. & Sur. Co., 96 Misc 2d 497; Lumbermens Mut. Ins. Co. v Edwards, 293 F Supp 687; Angerosa v White Co., 248 App Div 425; Clover Crest Stock Farm v New York Cent. Mut. Fire Ins. Co., 189 App Div 548; Shawanga Holding Corp. v New York Prop. Ins. Underwriting Assn., 57 AD2d 677, 43 NY2d 643.) II. By denying defendants a setoff in the amount paid to the mortgagee for the building loss, the lower courts have allowed a double recovery for the building loss. (Syracuse Sav. Bank v Yorkshire Ins. Co., 301 NY 403; Eddy v London Ins. Corp., 143 NY 311; Grady v Utica Mut. Ins. Co., 69 AD2d 668; Hartwig v American Ins. Co., 169 App Div 60.)

      Frank A. Weg, Dennis T. D’Antonio and Jonathan A. Murphy for Cherylan Reed, respondent.
    I. Respondent Cherylan Reed, determined to be innocent by the jury, cannot be precluded from recovery based upon the acts of her father, of which she was found to have no knowledge and gave no consent. (Clover Crest Stock Farm v New York Cent. Mut. Fire Ins. Co., 189 App Div 548; Shawanga Holding Corp. v New York Prop. Ins. Underwriting Assn., 57 AD2d 677; Elgi Holding v Insurance Co., 511 F2d 957; Deitsch Textiles v New York Prop. Ins. Underwriting Assn., 93 AD2d 853; Winter v Aetna Cas. & Sur. Co., 96 Misc 2d 497; T. G. W. Realties v Long Is. Bird Store, 151 Misc 918; Sullivan v Bonesteel, 79 NY 631; Krupp v Aetna Life & Cas. Co., 103 AD2d 252; Commercial Union Ins. Co. v State Farm Fire & Cas. Co., 546 F Supp 543.) II. Appellants are not entitled to a setoff as a matter of law. (Whitestone Sav. & Loan Assn. v Allstate Ins. Co., 28 NY2d 332; First Natl. Bank & Trust Co. v Novick Realty, 68 AD2d 191.) III. The question of Cherylan Reed’s sole ownership of the property is not subject to review by the Court of Appeals. (Stanton v State of New York, 26 NY2d 990; Kehoe v Incorporated Vil. of Val. Stream, 44 NY2d 704; Plaza Hotel Assocs. v Wellington Assocs., 37 NY2d 273.)
   OPINION OF THE COURT

Kaye, J.

The innocent owner of property destroyed by fire is not barred from recovery, under the terms of insurance policies unqualifiedly naming her as an insured, even though the property was transferred to her through her father without consideration when she was 18 years old and her father, the named coinsured, independently caused the fire. Moreover, the insurers here have no right to offset against liability to their insured the amounts they previously paid to the mortgagee under a standard mortgagee clause. The insurers’ own conduct in acquiring title to the property, after simply disclaiming liability and before any adjudication of the issue of liability to their insured, precludes such relief.

In 1976, Universal Gym Equipment Corporation, of which both plaintiffs — Cherylan Reed and her father, Russell Reed— were shareholders, purchased a contemporary 14-room house and barn on 30 acres of land in Clinton Corners. The Reed family occupied those premises as their home. Title was transferred to Russell Reed and his wife, as tenants by the entirety, and thereafter to International Credilogical Corporation, of which plaintiffs were shareholders and Cherylan was president. On February 15, 1978, the property was conveyed— without consideration — to Cherylan Reed alone. She was then 18 years old.

One year later, in January 1979, defendant insurers issued standard homeowners policies on the property, effective immediately, providing total coverage of more than $500,000. The named insureds were Cherylan Reed and Russell Reed. The applications revealed that the deed to the property was in Cherylan’s name alone, that Russell lived in the house, and that the house had previously been owned by his corporation. The applications also showed that Dutchess Bank and Trust Company held a first mortgage on the property; in October 1978, after repeated delinquencies in mortgage payments, Dutchess had begun foreclosure proceedings and filed a lis pendens against the property. Both policies provided that they would be void in the event of the insured’s willful concealment, misrepresentation or false swearing regarding material facts, and that the insurer would not be liable for any loss that occurred "while the hazard is increased by any means within the control or knowledge of the insured”. Both policies also included a standard mortgagee clause in favor of Dutchess, the mortgagee.

On March 13, 1979, some two months after effectiveness but before cancellation for failure to transmit the down payment or first premiums, the Reed home was destroyed by fire. Suspecting arson, defendants commenced an investigation and disclaimed liability. On December 18, 1979, they paid Dutchess $186,893.41, the mortgage indebtedness as of the date of the fire, and they obtained an assignment of the mortgage.

Upon defendants’ continued refusal to pay under the insurance policies, in April 1980 plaintiffs began the present action. Defendants denied liability on the ground that plaintiffs had knowingly increased the risk of fire, made fraudulent statements in proofs of loss and examinations under oath,, and attempted to conceal the cause of the fire. Defendants further contended that any recovery by plaintiffs had to be reduced by the amount already paid to Dutchess, the mortgagee, in accordance with the standard mortgagee clause.

At trial, the evidence established that by the time of the fire there were numerous unsatisfied judgments against Russell Reed, that he was heavily in debt, that the bank was threatening to foreclose, and that he was attempting to sell the property. Russell Reed had previously been convicted of forgery, mail fraud and securities fraud; shortly before the fire he had pleaded guilty to petty larceny in connection with a check-kiting scheme. Defendants urged that title to the house and other assets (including Russell Reed’s mother’s assets) had been transferred to Cherylan Reed simply to insulate the property from the demands of her father’s creditors while in actuality he maintained complete control of them. Cherylan acknowledged that she did not make the mortgage payments or take responsibility for maintaining the property. That was her father’s role.

The trial court charged the jury that even if it found that one insured intentionally set the fire that destroyed the insured premises, the other — though a relative — still might recover unless there were "proof of knowledge, consent or authorization or connivance upon the part of a particular plaintiff in regard to the fire”. Defense counsel unsuccessfully contended that the jury should be instructed that one plaintiffs knowledge of or consent to the other’s acts need not be actual and could be implied, that the "unity of interest” between father and daughter meant they were "virtually inseparable and equals” so that no showing of actual knowledge was required.

In response to special questions, the jury found that the fire was incendiary; that Russell Reed had caused or procured it; that Cherylan Reed had not; that his actions were taken without her knowledge and consent; that Russell Reed had willfully and intentionally sworn falsely to a material fact in the proof of loss or examination under oath, so as to defraud defendants; and that Cherylan Reed had not. The jury awarded her $186,000, the cash value of the destroyed building, and $3,440 for lost personal property, apparently rejecting her claim that the entire contents, of the house also had been transferred to her. Defendants’ motions to set aside the verdict or to set off against the award their payment to Dutchess were both denied by the trial court. The Appellate Division affirmed the judgment, concluding that in the circumstances the jury’s determination left the insurance companies without a defense to payment. We are in fundamental agreement with the thorough Appellate Division opinion (123 AD2d 188), and therefore affirm.

The Insurance Issue

Undisputedly, the property was insured by defendants against the very peril that destroyed it, and plaintiff Cherylan Reed was the owner of the property and a named insured with her own contract right to recover under the policies; further, as the jury found and the Appellate Division affirmed, she was herself innocent of both material misrepresentation to the insurers and knowledge of or complicity in her father’s wrongdoing. A single question remains for our determination: whether in the circumstances the misconduct of Russell Reed, which would defeat recovery if he alone were the named insured, should be imputed to the coinsured, his daughter.

Legal responsibility generally flows from one’s own acts, not the imputed misconduct of others. At the root of the doctrine of imputed fault is control of the actor (see, e.g., Prosser and Keeton, Torts ch 12 [5th ed 1984]). On the issue of control, however, defendants’ position throughout this litigation has strenuously and undeviatingly been the converse: not that Cherylan Reed had any right to control her father’s actions, but that he so dominated and controlled her that the veil of her property ownership must be pierced and cast aside, and the two treated as one person.

There being no direct authority for this novel position, defendants urge that the appropriate analogy is to cases barring recovery of insurance proceeds by corporations where corporate property has been destroyed by agents who would be the beneficiaries of any recovery (see, e.g., Shawanga Holding Corp. v New York Prop. Ins. Underwriting Assn., 57 AD2d 677; Clover Crest Stock Farm v New York Cent. Mut. Fire Ins. Co., 189 App Div 548). We agree with the Appellate Division that this analogy fails. Whatever the law may be with respect to the imputation of corporate agents’ wrongdoing to the entity —because the corporate entity necessarily acts only through its agents — that situation finds no parallel in the one before us, involving two adults (albeit father and daughter), each of them able to act independently of the other and each of them generally responsible under the law only for his or her own acts.

A closer analogy is in the "innocent coinsured” cases, typically involving the central elements of arson and spouses, one innocent the other not (see, e.g., Krupp v Aetna Life & Cas. Co., 103 AD2d 252; O’Donnell, Imputation of Fraud and Bad Faith: The Role of the Public Adjuster, Co-Insured and Independent Adjuster, 22 Tort & Ins LJ 662, 680 [1987]; Annotation, Right of Innocent Insured to Recover Under Fire Policy Covering Property Intentionally Burned by Another Insured, 11 ALR4th 1228). In our view, these better guide our decision in the present case as it was put to the jury, in that they concern individuals (one innocent, the other not) alleged to have a single interest in property or insurance proceeds and for that reason to share in each other’s culpability, the wrongdoing of one nullifying recovery as to both. Moreover, these decisions balance similar competing policy concerns — for example, a reluctance to impute one individual’s fraud to another, and yet an interest in discouraging arson for profit (see, Note, The Problem of the Innocent Co-Insured Spouse: Three Theories on Recovery, 17 Val U L Rev 849 [1983]).

Traditionally in these cases the courts have focused on the nature of the property ownership — usually tenancy by the entirety — as well as the policy ownership, and denied recovery to both coinsureds on the theory that the mutual obligation to save and preserve the property necessarily meant that a breach by one party was chargeable to the other (see, e.g., Short v Oklahoma Farmers Union Ins. Co., 619 P2d 588 [Okla]; Matyuf v Phoenix Ins. Co., 27 Pa D & C 2d 351; see also, Butler & Freemon, Innocent Coinsured: He Burns It, She Claims — Windfall or Technical Injustice% 17 Forum 187 [1981]). The anachronistic assumption underlying such a rule, and its potential unfairness, have led courts within the past decade increasingly to reject it (see, O’Donnell, op. cit., 22 Tort & Ins U, at 679-680).

The "new 'dominant’ rule” (Ryan v MFA Mut. Ins. Co., 610 SW2d 428, 434 [Tenn]) looks not to the property interest of each named insured but to the terms of the insurance policy— which is, after all, a contract — reading ambiguous language against the insurer (see, Note, op. cit., 17 Val U L Rev, at 852; Comment, Spouse’s Fraud as a Bar to Insurance Recovery, 21 Wm & Mary L Rev 543 [1979]). In thus viewing the issue, courts have given effect to the reasonable expectation of a property owner that her interest was covered by a policy naming her without qualification as one of the persons insured, despite the independent wrongdoing of a coinsured (see, e.g., Ryan v MFA Mut. Ins. Co., 610 SW2d 428 [Tenn], supra; Hosey v Seibels Bruce Group, S.C. Ins. Co., 363 So 2d 751 [Ala]; Hoyt v New Hampshire Fire Ins. Co., 92 NH 242, 29 A2d 121). On a related rationale, other courts have allowed recovery by an innocent coinsured — again without regard to the nature of the property interest — as a matter of fairness and equity, concluding that the independent wrongdoing of one insured should not bar recovery as to the coinsured under a policy that names and is intended to protect her (see, e.g., Howell v Ohio Cas. Ins. Co., 130 NJ Super 350, 327 A2d 240). The soundness of such an approach has, prior to the Appellate Division writing in the present case, also been recognized in Krupp v Aetna Cas. & Sur. Co. (103 AD2d 252, supra) and Winter v Aetna Cas. & Sur. Co. (96 Misc 2d 497).

Distinctions plainly can be drawn between the "innocent coinsured” decisions and the present case; perhaps most significant is the fact that Cherylan Reed was the sole owner of the property. We are nonetheless persuaded that the rationale of those cases permitting an innocent coinsured to recover in accordance with the contract of insurance, despite an alleged unity of interest in the property with a guilty coinsured, is applicable. Knowing the facts set forth in plaintiffs’ applications, defendants chose to underwrite the risk, and the insurance policies unqualifiedly named Cherylan Reed as an insured. Cherylan Reed made no material misrepresentations to defendants, and had no knowledge of or complicity in her father’s wrongdoing. Given these affirmed findings, the alleged "unity of interest” of the two individuals — which defendants at trial pressed as the dispositive issue — furnishes no basis for imputing Russell’s wrongdoing to Cherylan Reed.

In these circumstances, we therefore conclude that the independent wrongdoing of Russell Reed should not be imputed to Cherylan Reed, and that her recovery was correctly sustained.

The Set-off Issue

Defendant insurers next claim that amounts previously paid to the mortgagee must be offset against any amounts found due to plaintiff Cherylan Reed, or she will enjoy a double recovery. Because of the insurers’ own chosen course, however, we affirm the Appellate Division order denying the offset.

A standard mortgagee clause in an insurance policy gives rise to a separate insurance of the mortgagee’s interest, independent of the mortgagor’s right of recovery (Syracuse Sav. Bank v Yorkshire Ins. Co., 301 NY 403, 407). Payment by the insurer to the mortgagee, to the extent of its interest, is ordinarily regarded as having been made on behalf of the mortgagor and extinguishes the mortgagor’s debt, leaving the mortgagor with its property as well as any excess paid by the insurer (see, Grady v Utica Mut. Ins. Co., 69 AD2d 668; Hartwig v American Ins. Co., 169 App Div 60; 6A Appleman, Insurance Law & Practice § 4164). Generally, an insurer who is liable to its insured is not entitled to an assignment of the mortgage (see, 16 Couch, Insurance 2d § 61:374, at 375-376).

A different sequence necessarily ensues when the insurer, having paid the mortgagee in accordance with the standard mortgagee clause, contests liability under the policy (see, O’Neil v Franklin Fire Ins. Co., 159 App Div 313, affd 216 NY 692). If the insurer is indeed not liable to the insured under the policy, then it may be subrogated to the rights of the mortgagee and obtain an assignment of the mortgage, with the right to foreclose and take possession of the property (see, 16 Couch, Insurance 2d, op. cit.). The mere disclaimer of liability by an insurer does not vest the insurer with a right of subrogation to the rights of the mortgagee (see, O’Neil v Franklin Fire Ins. Co., supra; Southern Tier Coop. Ins. Co. v Coon, 53 AD2d 970, 971; see generally, Comerford, When is Money Paid the Mortgagee Recoverable? — Is the Counterclaim Compulsory?, 22 Tort & Ins LJ 113 [1986]; Dwyer and Barney, Analysis of Standard Mortgage Clause and Selected Provisions of the New York Standard Fire Policy, 19 Forum 639, 667 [1984]).

Here, soon after the fire, defendants commenced an arson investigation, retained counsel and asserted that they had no liability to plaintiffs under the policies. On December 18, 1979, defendants paid the mortgagee $186,893.41, and they obtained an assignment of the mortgage. In September 1981, defendants foreclosed and at the sale bid $219,911.58, the total sum purportedly owed in the foreclosure action. Their application for a deficiency judgment against plaintiffs, on the ground that the market value of the property was only $45,000, was denied in light of the amount they had voluntarily chosen to bid for the property. Thus, long before any adjudication of the issue of defendants’ liability to either plaintiff (trial commenced in late summer 1983), defendants had exercised a right of subrogation and assumed ownership of the property.

Upon merely disclaiming liability to plaintiffs, defendants were not entitled to the assignment of the mortgage which they obtained from Dutchess. In the circumstances, their payment to Dutchess, the mortgagee, must be regarded as having discharged the mortgage debt, leaving no claim against Cherylan Reed to which they might have been subrogated. Having themselves chosen a course which included proceeding with the foreclosure sale, bidding in the full mortgage indebtedness, and assuming ownership of the property in place of their insured — all well before any adjudication of their liability to her — defendants cannot now claim a right of setoff against Cherylan Reed under the insurance policies.

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

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

Order affirmed, with costs.

      . The standard mortgagee clause provides in part:
      "If a mortgagee is named in the Declarations, loss or damage, if any, on buildings under this policy, shall be payable to the aforesaid as mortgagee (or trustee) as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner * * *
      "Whenever this Company shall pay the mortgagee (or trustee) any sum for loss or damage under this policy and shall claim that, as to the mortgagor or owner, no liability therefor existed, this Company shall,.to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may at its option, pay to the mortgagee (or trustee) the whole principal due or to grow due on the mortgage with interest, and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of said mortgagee’s (or trustee’s) claim.”

      . There was no criminal prosecution for arson.

      . Plaintiffs will be referred to in this opinion as "coinsureds”, as they were so named in the policies. The thrust of defendants’ argument is not that Russell Reed lacked any insurable interest (see, Insurance Law § 3401), but that neither named insured can recover by reason of the wrongdoing of one and their unity of interest. The opinion treats the issue as it was presented.

      . Defendants devote their argument in this court principally to a "straw party” defense, not precisely articulated as such at trial, and they strenuously urge that the rationale of the "innocent coinsured” cases should not apply. However, we approach this case as it was presented at trial — essentially, that by reason of the "unity of interest” between Cherylan and Russell Reed, his wrongdoing is necessarily imputed to her. To the extent defendants’ theory rests on a notion that Cherylan Reed was a "consenting pawn” in her father’s fraud, it is of course at odds with the affirmed findings regarding her own innocence.

      . Defendant’s insistence that this court ignore facts that are reported in a decision in a separate proceeding, because they are "outside the record,” is misplaced. These facts — which both Supreme Court and the Appellate Division properly took into account — are recited in a Supreme Court decision dated May 14, 1982 in defendants’ own action from which no appeal was filed and of which we may take notice (CPLR 4511 [a]; Richardson, Evidence § 17 [Prince 10th ed 1973]). The facts were, moreover, actually made a part of the record in the present case in connection with plaintiifs’ opposition to defendants’ affirmative defense of setoff. We further note, as did the Appellate Division (123 AD2d 188, 196), that in the present action the parties have not raised or relied on any preclusive effect of the judgment of foreclosure.


author: Bellacosa, J.

text:
    The People of the State of New York, Appellant, v Richard Winkler, Respondent.
    Argued, March 16, 1988;
    decided April 28, 1988

      POINTS OF COUNSEL

      Carl A. Vergari, District Attorney (Diane E. Selker and Richard E. Weill of counsel), for appellant.
    An arrangement in the nature of a contingency fee in a criminal case does not by itself create an actual conflict of interest so as to constitute a per se violation of a defendant’s right to counsel. (People v Gomberg, 38 NY2d 307; People v Mattison, 67 NY2d 462; People v Salcedo, 68 NY2d 130; People v Macerola, 47 NY2d 257; Glasser v United States, 315 US 60; People v McDonald, 68 NY2d 1; People v Monroe, 54 NY2d 35; Cuyler v Sullivan, 446 US 335; People v Alicea, 61 NY2d 23; People v Lane, 60 NY2d 748.)

      Robert N. Isseks and Alex Smith for respondent.
    A fee contingent upon an acquittal in a criminal proceeding creates a conflict of interests which as a matter of law violates a defendant’s Federal and State constitutional rights to counsel. (Riggs v Palmer, 115 NY 506; Cuyler v Sullivan, 446 US 335; Holloway v Arkansas, 435 US 475; Glasser v United States, 315 US 60; United States ex rel. Sullivan v Cuyler, 553 F Supp 1236, 723 F2d 1077; United States v Mavrick, 601 F2d 921; Ross v Heyne, 638 F2d 979; Baty v Balkcom, 661 F2d 391; Bishop v Parratt, 509 F Supp 1140; United States ex rel. Bermudez v Vincent, 472 F Supp 448, 614 F2d 1285.)
   OPINION OF THE COURT

Bellacosa, J.

Legal representation in a criminal proceeding pursuant to a contingent fee retainer, while unquestionably unethical, does not constitute per se ineffective assistance of counsel. A defendant may, however, be entitled to relief upon satisfying the defense burden of showing that the contingent fee conflict of interest effected less than meaningful and constitutionally guaranteed legal representation.

Defendant’s conviction for murder in the second degree after a jury trial was reversed by the Appellate Division on the law; it ordered a new trial solely on a per se ineffective assistance of counsel ground raised in a CPL 440.10 proceeding. We disagree with that result and reverse and remit to the Appellate Division.

Defendant-respondent Winkler and an accomplice, Williams, killed Winkler’s father while he slept. The two men with another, named Gruber, drove to the family house and parked nearby. Leaving Gruber with the car, the two walked to the house. Approximately 45 minutes later, Gruber heard two shots. Shortly thereafter, Winkler and Williams returned; Winkler opened the trunk and Williams placed a rifle wrapped in a tee shirt inside. In the car, Winkler told Gruber, "You don’t know anything” and promised Williams $10,000. Williams made statements such as, "I shot him in the head and chest”, "we got the guy”, and "I can’t believe I shot him”.

After Winkler’s arrest, his mother and grandmother engaged Robert Huflay as his counsel under a written contract requiring payment to Hufjay of $2,000 upon execution and $18,000 upon the settlement of the elder Winkler’s estate. The contract added that: "It is understood and agreed, subject to the approval of richard winkler, that in the event richard winkler is acquitted or found not guilty by reason of insanity, or some other legal reason, and inherits from the Estate of Irving Winkler, that richard winkler shall pay, as additional legal fees, the sum of $15,000.” Prior to endorsing the contract, defendant personally increased the figure in the contingent fee clause from $15,000 to $25,000.

Following his conviction for murder in the second degree after a jury trial and while his appeal from the judgment was pending, Winkler moved under CPL 440.10 to set aside his conviction on the ground of ineffective assistance of counsel. Winkler revealed for the first time in his moving papers that his trial counsel had represented him on a contingent fee arrangement. He contended that the agreement was a per se violation of his right to effective assistance of counsel and that the representation he received was deficient in other respects; namely, not seeking jury instructions on lesser included offenses; not asking for a charge that Gruber was an accomplice; not asserting an intoxication defense; not moving for severance; not preparing him for his testimony; and not making certain trial objections.

The Westchester County Court rejected the per se violation argument and addressed the issue of denial of effective assistance of counsel under the standard in People v Baldi (54 NY2d 137). In its Baldi analysis, the trial court did not consider the contingent fee agreement at all nor did it examine the potential compromising effects the agreement might otherwise relevantly have exerted on the representation of defendant. Finding no factual support for Winkler’s assertion of professional deficiencies, the court ruled he received meaningful representation.

The Appellate Division reversed, on the law, the denial of Winkler’s CPL 440.10 motion, granted it, vacated the judgment of conviction, ordered a new trial and dismissed the appeal from the judgment as academic. That court concluded that such agreements intrinsically create a substantial possibility of prejudice because they pit an attorney’s financial interest against the client’s entitlement to uncompromised counsel. The court reasoned that since these agreements are outside the record and their effect on counsel’s conduct is insidiously subtle, they would seldom come to the attention of the Trial Judge so that protections such as those provided by People v Gomberg (38 NY2d 307) could be interposed. The Appellate Division ruled that contingent fee arrangements in criminal cases constitute a per se denial of a defendant’s right to effective assistance of counsel because of the perceived significance of the conflict and the apparent unavailability of practical protections.

Our analysis starts with the well-settled proposition that ”[p]ublic policy properly condemns contingent fee arrangements in criminal cases” (Code of Professional Responsibility EC 2-20). DR 2-106 (C) of the code makes it a breach of legal ethics for a lawyer to "enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case” (Code of Professional Responsibility DR 2-106 [C]; see also, ABA Standards for Criminal Justice, Defense Function § 3.3 [e]). The New York State Bar Association adds relevantly "that the Code prohibition of DR 2-106 (C) encompasses, in addition to wholly contingent fees, agreements which provide in addition to a fixed basic fee, a further fixed fee contingent upon some specified result” (NY State Bar Opn No. 412 [1975]).

Complementing the professional disciplinary perspective, civil law principles condemn "bargain[s] to conduct a criminal case * * * in consideration of a promise of a fee contingent on success” (Restatement of Contracts § 542 [2]). These arrangements are thus met with universal disapproval and, as a matter of strong public policy, we join in all appropriate efforts to discourage and sanction them.

The conflict between a client’s interest in effective assistance of counsel and an attorney’s financial inducements to satisfy the contingent fee qualifying terms creates an atmosphere for risky compromise of the client’s best interests on the gamble that the contingency might produce a bonus to the attorney rather than justice to the client. The prohibition of contingent fee arrangements protects a criminal defendant’s interests and reduces the temptation for counsel "to employ improper or corrupt tactics to enhance his fee” (ABA Standards for Criminal Justice, Defense Function, Commentary to § 3.3 [e]).

We strongly support the unanimous view that fees contingent upon achieving a specific result in a criminal case are wrong (see, MacKinnon, Contingent Fees for Legal Services, at 52 [1964]). We hold, however, that such agreements do not collaterally constitute a per se violation of a criminal defendant’s constitutional right to effective assistance of counsel. These two views are not inconsistent and may be harmonized without the adoption of a per se rule requiring reversals of convictions to sanction unethical contingent fee agreements. Indeed, the unethical attorney in this very case within the disciplinary arena has received the mildest form of professional sanction — admonition; whereas a per se rule in the criminal proceeding arena produces a serious and potent remedy — automatic reversal and full new trial. That is a disproportionate remedy.

Fee arrangements between an attorney and a client very often present some form of conflict of interest. An attorney whose fee is based on an hourly rate may have a financial incentive to prolong the action and go to trial in situations where the client’s best interest might be a negotiated guilty plea early on in the proceedings. Conversely, attorneys paid a lump-sum fee may have an incentive to dispose of a case quickly in situations where the client’s best interest might be to put the People to their proof at trial. These kinds of conflicts and their consequences are avoided, for the most part, by the honorable and faithful fulfillment of professional responsibilities by most attorneys. But none of these potential conflicts, including the forbidden contingent fee one in this case, when they do unfortunately occur, are apparent or amenable to trial court therapy because all these fee arrangements are confidential between lawyer and client.

We are persuaded that the existence of a potential conflict of interest should not automatically be equated to ineffective assistance of counsel. Under similar circumstances, this court has declined to recognize a per se rule requiring reversal (see, People v McDonald, 68 NY2d 1, 11, n 5; People v Mattison, 67 NY2d 462, 468; People v Monroe, 54 NY2d 35, 38; People v Macerola, 47 NY2d 257, 264; see also, Strickland v Washington, 466 US 668; Cuyler v Sullivan, 446 US 335). A defendant attacking the integrity of what may otherwise be a validly secured criminal conviction on this ground bears an appropriately specified burden to demonstrate the alleged ineffectiveness by showing that a contingent fee agreement existed and that it affected the manner in which his attorney conducted the defense prejudicially to the defendant. On defendant’s satisfaction of that burden, a court can conclude that defendant was denied legally cognizable effective assistance of counsel.

A test for "effective assistance is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation” (People v Baldi, 54 NY2d 137, 146, supra, citing People v Droz, 39 NY2d 457). Thus, an unethical fee arrangement is not tantamount to less than "meaningful representation” any more than an ethical fee arrangement automatically equates to meaningful representation in all cases.

The potential impediment of less than meaningful representation derived from a contingent fee arrangement may exert an insidious and potentially permeating affect on the proceeding and the professional relationship. We hold, therefore, that a defendant is entitled to relief upon satisfying the defense burden of showing that the possible conflict of interest affected the defense in such a way, based on all relevant aspects of the representation directly or indirectly rooted in that impediment, that meaningful representation was not supplied under the Federal and State Constitutions (US Const 6th Amend; NY Const, art I, § 6; People v Alicea, 61 NY2d 23, 31; People v Baldi, 54 NY2d 137, 147, supra).

Automatic reversal in the retained attorney-client instance disproportionately penalizes the public weal because of a contingent fee arrangement entered into confidentially and against which no advance State protection can be imposed or is even available. Something more must be shown proving that the contingent fee arrangement in the particular and relevant circumstances adversely and prejudicially affected the quality of the representation of defendant. Moreover, a per se rule would unwisely give sophisticated defendants and unscrupulous attorneys a delayed-trigger weapon to be sprung at some later strategic phase of the proceeding if events developed very badly for a defendant and the stakes made it worthwhile to assert even an illegal bargain.

Most jurisdictions which have ruled on this question have also rejected the per se test (see, Schoonover v State, 218 Kan 377, 543 P2d 881; Downs v State, 453 So 2d 1102 [Fla]; State v Labonville, 126 NH 451, 492 A2d 1376; see contra, People v Meyers, 46 Ill 2d 149, 263 NE2d 81).

The weight of authority and sound analytical and policy considerations support a rule requiring fact-finding courts to evaluate the specific impact which the contingent fee arrangement might have on the meaningfulness of counsel’s representation rather than a per se rule. Defendant is entitled to effective and meaningful representation based on a fair test, not on a blind windfall triggered by his own conduct.

Accordingly, the order of the Appellate Division should be reversed and the case should be remitted to that court for consideration of all issues not reached on appeal to that court and such further proceedings, if any, as may be appropriate.

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

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