source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    In the Matter of Standard Fruit & Steamship Company, Appellant, v Waterfront Commission of New York Harbor, Respondent.
    Argued October 5, 1977;
    decided November 10, 1977

      POINTS OF COUNSEL

      Wynne B. Stern, Jr., Morris J. Fellner and Daniel Cohen for appellant.
    I. The subpoena should have been vacated and quashed in its entirety as an abuse of process. (Matter of Ellis, 176 Misc 887; Matter of Smith v Smith, 26 AD2d 922.) II. In response to the subpoena appellant is not required to produce specific employees not named in said subpoena. Appellant in the first instance had the right to produce an officer or employee of its own selection. III. Respondent by its subpoena and the court orders directing compliance therewith have no authority to compel appellant to produce specific individuals where such individuals have not been served with subpoenas in New York or New Jersey are not employed or reside in those States and have refused voluntarily to appear at the hearing for any purpose. (Southbridge Finishing Co. v Golding, 2 AD2d 430.) IV. The court below was in error in affirming the resettled order dated November 15, 1976 and dismissing the appeal from the prior court order as moot, for the reasons that (a) appearance of appellant pursuant to the prior order rendered respondent’s resettlement application improper; (b) respondent waived any right to resettle the prior order; and (c) there is no statutory, procedural rule or other authority authorizing the resettlement of the prior order under the facts involved. (Fox v Schrader Corp., 36 AD2d 591; Matter of Cisco v Lavine, 72 Misc 2d 1087.)

      Irving Malchman and Richard Paul Cohen for respondent.
    I. The Waterfront Commission compact empowers the Waterfront Commission to subpoena the testimony of Standard Fruit & Steamship Company (which does business in the port and which made payments in New York City of $100,000 in cash to the president and co-owner of stevedoring companies licensed by the commission) concerning such payments through its officers and employees who participated in the corporate transaction. (Southbridge Finishing Co. v Golding, 2 AD2d 430; Kuzmak v Atlantic Cement Co., 20 AD2d 845; Wilson v United States, 221 US 361; Matter of Erb Strapping Co. v Waterfront Comm, of N. Y. Harbor, 31 AD2d 101.) II. Standard Fruit & Steamship Company is also required to testify through its officers and employees who participated in the transaction (the payment of $100,000 in cash in New York City to the president and co-owner of stevedore companies licensed by the commission) in order to identify the subpoenaed records and to testify respecting their origin, purpose and custody. (Sorin v Shahmoon Inds., 34 Misc 2d 1008.)
   OPINION OF THE COURT

Jasen, J.

We are asked to pass on whether a corporation, which conducts business in New York, may be subpoenaed, with its records, as witness in connection with a hearing before the Waterfront Commission of New York Harbor, and be required to produce both its records and employees with knowledge of the records and transactions, regardless of whether the employees were within the jurisdiction.

In 1976, the Waterfront Commission of New York Harbor (commission) noticed a hearing to determine whether to grant or deny the applications of five companies for licenses as stevedores. This hearing was prompted by information received by the commission from the United States Securities and Exchange Commission (SEC) that Castle & Cooke, Inc., the parent corporation of the appellant, had made various questionable payments, including payments to a stevedoring company, to ensure the unloading of bananas during a longshoremen strike in October and November, 1971.

One Irving Held is the president and co-owner of said five stevedoring companies seeking stevedoring licenses. The notice of hearing charges, in essence, that Held falsely denied in a sworn interview before the commission that he had been paid $100,000 in cash by a representative of the appellant Standard Fruit & Steamship Company, in order to ensure the unloading of the steamship company’s cargo of bananas during the 1971 longshoremen strike.

The commission ascertained that Michael Cusimano, appellant’s director of labor relations, had testified under oath before the SEC that he had made two payments of $50,000 in cash to Irving Held in New York City in order to guarantee that the cargo of bananas of appellant would be unloaded notwithstanding the longshoremen’s strike. In addition, Harold L. Rolfes testified before the SEC that, as appellant’s treasurer, he had collected a cash fund for the making of various questionable payments by appellant and that he supplied Cusimano with the cash to pay Irving Held in order to ensure the unloading of appellant’s cargo of bananas during the longshoremen’s strike.

Commission staff counsel in charge of the investigation requested the appellant to produce Cusimano for examination by the commission. Pursuant to this request, appellant produced Cusimano for examination by the commission in New Orleans, and Cusimano, in his sworn but ex parte testimony before the commission, reiterated his testimony to the SEC, namely, that he had made two payments of $50,000 in cash to Irving Held in New York City in order to ensure the uninterrupted unloading of appellant’s cargo of bananas during the longshoremen’s strike.

Thereafter, after institution of the commission’s hearing to determine whether to grant licenses to the five stevedoring companies, the commission requested appellant to produce Cusimano and Rolfes as witnesses at the commission’s licensing hearing. However, appellant advised the commission that it had already produced Cusimano for examination and supplied the commission with the SEC testimony of Rolfes and that it would not "divert * * * Cusimano and Rolfes from their normal duties.” Thereupon, the commission caused the subject subpoena to be served upon the appellant.

Appellant’s motion to quash the commission’s subpoena was denied by Special Term and the Appellate Division and the appellant was required to produce its officers or employees having knowledge of the transaction. On November 9, 1976, and again on November 23, 1976, pursuant to a resettled order, appellant produced Joseph Dreher, one of its officers, to testify. However, the two employees of appellant, Cusimano and Rolfes, who testified before the SEC, were not produced. Dreher testified he knew nothing about the matters in issue, other than that the requisition for the checks had been signed by Rolfes and checks in the total sum of $100,000 were issued to him.

Appellant now appeals to this court from the order of the Appellate Division which denied its motion to quash the commission’s subpoena and required the corporation "to produce both its records and employees with knowledge of the records and transactions, regardless of whether or not the employees are within the jurisdiction”.

We hold that a corporation doing business in New York may be subpoenaed to testify as a witness about a corporate transaction through its officers and employees who have knowledge of the transaction. (L 1953, ch 882, § 1, art IV, subd 8; § 1, art XI, subd 5; Southbridge Finishing Co. v Golding, 2 AD2d 430.) It is no excuse to say that the officers and employees who participated in the corporate transaction involved are not within the jurisdiction or that they refuse to appear or testify in New York. So long as the person who participated in the questioned corporate activity is an officer or employee of the corporation, or is under its control or direction, it is the corporation’s responsibility to produce that person pursuant to a subpoena served upon the corporation.* As a corporation can only act through its officers and employees, a corporation is required to produce such officers and employees who have knowledge of the transaction. To hold otherwise would stultify the commission’s broad statutory powers of investigation and the discharge of its public responsibilities.

We find little merit in appellant’s further contention that in furnishing one of its officers, Dreher, to the commission for examination, it complied with the subpoena. CPLR 2305 (subd [b]) provides: "Any person may comply with a subpoena duces tecum by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.” (Emphasis added.) Dreher’s testimony amply demonstrates that he did not know the purpose for which the checks issued by him were used. His testimony was, therefore, insufficient to satisfy CPLR 2305 (subd [b]). It would appear only Cusimano and Rolfes had such knowledge.

Finally, insofar as the commission proceeded to examine Dreher, it cannot be said to have waived its right to seek further testimony. Only after examining Dreher could it be determined that he lacked the knowledge required to proffer the information sought by the commission.

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

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

Order affirmed, with costs.

       Appellant argues that its control over Cusimano terminated when he retired on January 1, 1977. By granting an early retirement to him, and a larger pension than he was normally entitled to receive, it cannot be said upon the record before us that appellant relinquished control over him. Furthermore, Cusimano was concededly in appellant’s employ when the resettled order, dated November 15, 1976, was issued, directing compliance with the subpoena. There having been ample time to comply prior to Cusimano’s retirement, his current employment status is immaterial. Like reasoning renders unconvincing and irrelevant appellant’s assertion that it no longer exerts control over Rolfes, who terminated his direct employment with appellant on April 1, 1977, but who is currently employed by an entity in which appellant is a joint-venturer.


author: Cooke, J. Chief Judge Breitel (dissenting in part).

text:
    The People of the State of New York, Respondent, v Joseph Davis, Appellant. The People of the State of New York, Respondent, v Joseph James, Appellant.
    Argued September 7, 1977;
    decided November 15, 1977

      POINTS OF COUNSEL

      James J. Duggan and David E. Kendall for appellant in the first above-entitled action.
    I. Defendant’s guilt was not proved beyond a reasonable doubt. (People v Dillon, 197 NY 254; People v Patterson, 39 NY2d 288; Matter of Winship, 397 US 358; Cool v United States, 409 US 100; Ivan v City of New York, 407 US 203; Mullaney v Wilbur, 421 US 684; Speiser v Randall, 357 US 513.) II. The court erred in having refused to admit People’s Exhibit 35 into evidence. III. It was error to have refused to allow the witness Smith to testify. (Chambers v Mississippi, 410 US 284; Washington v Texas, 388 US 14;
      Cool v United States, 409 US 100; Herring v New York, 422 US 853.) IV. It was error to have denied defendant’s motion for a new trial. (People v Moltesen, 282 App Div 1090.) V. At the time of the shooting, the victim was not acting as a police officer. VI. The statute fixing death as the punishment for the murder of a police officer is unconstitutional. (Barbier v Connolly, 113 US 27; Barrett v Indiana, 229 US 26.) VII. The death penalty statute under which appellant was condemned is unconstitutional. (People v Fitzpatrick, 32 NY2d 499; Fur-man v Georgia, 408 US 238; Woodson v North Carolina, 428 US 280; Roberts v Louisiana, 428 US 325; Williams v Oklahoma, 428 US 907.)

      Carl A. Vergari, District Attorney (B. Anthony Morosco and Janet Cunard of counsel), for respondent in the first above-entitled action.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. Defendant’s claim of newly discovered evidence does not justify a new trial. III. It was not error to refuse to admit People’s Exhibit 35 into evidence. IV. It was not error to have barred the witness Smith from giving irrelevant, immaterial and prejudicial testimony. (People v Sapia, 41 NY2d 160.) V. The victim was acting as a police officer at the time of the shooting. VI. The New York death penalty is constitutional. (People v Fitzpatrick, 32 NY2d 499; Gregg v Georgia, 428 US 153; Furman v Georgia, 408 US 238; Woodson v North Carolina, 428 US 280; Winston v United States, 172 US 303; Williams v New York, 337 US 241; McGautha v California, 402 US 183; Roberts v Louisiana, 428 US 325; Washington v Louisiana, 428 US 906; Jurek v Texas, 428 US 262; Proffitt v Florida, 428 US 242.)

      Louis J. Lefkowitz, Attorney-General (Jules E. Orenstein and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law in the first above-entitled action.
    New York’s death penalty is constitutional. (People v Patterson, 39 NY2d 288; Furman v Georgia, 408 US 238; People v Fitzpatrick, 32 NY2d 499; Gregg v Georgia, 428 US 153; Proffitt v Florida, 428 US 242; Jurek v Texas, 428 US 262; Woodson v North Carolina, 428 US 280; Roberts v Louisiana, 428 US 325; McGautha v California, 402 US 183; Green v Oklahoma, 428 US 907.)

      James W. B. Benkard and Phebe C. Miller for appellant in the second above-entitled action.
    I. Appellant’s guilt as to the count of murder in the first degree was not proved beyond a reasonable doubt. (People v Horton, 18 NY2d 355; People v Jackson, 18 NY2d 516.) II. The court’s Sandoval ruling, allowing cross-examination of appellant concerning certain prior charged but not proven offenses, constituted prejudicial error requiring a retrial. (People v Sandoval, 34 NY2d 371; People v Branch, 34 AD2d 541, 27 NY2d 834; People v Carmack, 52 AD2d 264; People v Mallard, 78 Misc 2d 858; Gordon v United States, 383 F2d 936; Jackson v Osborn, 2 Wend 555; People v Cascone, 185 NY 317; People v Balsano, 51 AD2d 130; People v Porter, 47 AD2d 908; People v Hepburn, 52 AD2d 958.) III. The trial court violated the principles of Witherspoon v Illinois in dismissing six veniremen. (Witherspoon v Illinois, 391 US 51'0; Taylor v Louisiana, 419 US 522; Woodson v North Carolina, 428 US 280; Boulden v Holman, 394 US 478; Maxwell v Bishop, 398 US 262; Wilson v Florida, 403 US 947; Wigglesworth v Ohio, 403 US 947; Harris v Texas, 403 US 947; Davis v Georgia, 429 US 122; Adams v Washington, 403 US 947.) IV. The death penalty provisions under which appellant was sentenced are unconstitutional. (People v Velez, 88 Misc 2d 378; Woodson v North Carolina, 428 US 280; Roberts v Louisiana, 428 US 325; Williams v Oklahoma, 428 US 907; Furman v Georgia, 408 US 238; People v Fitzpatrick, 32 NY2d 499; Williams v New York, 337 US 241; Jurek v Texas, 428 US 262; Mullaney v Wilbur, 421 US 684; People v Patterson, 39 NY2d 288.)

      Eugene Gold, District Attorney (Michael S. Ross of counsel), for respondent in the second above-entitled action.
    I. The evidence was sufficient to support the jury’s verdict and no reversible error was committed by either the court or the prosecutor. (People v Cerullo, 18 NY2d 839; Moccio v New York, 387 US 946; People v Monaco, 14 NY2d 43; People v Mullin, 41 NY2d 475; People v McQueen, 18 NY2d 337; People v Horton, 18 NY2d 355, 387 US 934; People v Bracey, 41 NY2d 296; People v Drees, 53 AD2d 735; People v Agron, 10 NY2d 130; People v Schmidt, 168 NY 568; People v Robinson, 36 NY2d 224; United States v Larsen, 525 F2d 444, 423 US 1075.) II. The trial court properly exercised its discretion in excusing six veniremen. (Witherspoon v Illinois, 391 US 510; People v Boulware, 29 NY2d 135; United States v Hall, 536 F2d 313; People v Culhane, 33 NY2d 90; People v Biondo, 41 NY2d 483; United States v Gay, 522 F2d 429.) III. The death penalty provisions pursuant to which appellant was sentenced and as applied to him are constitutionally unassailable. (Peo

      pie v Broadie, 37 NY2d 100, 423 US 950; Gregg v Georgia, 428 US 153; Furman v Georgia, 408 US 238; Woodson v North Carolina, 428 US 280; Roberts v Louisiana, 428 US 325; People v Kaiser, 21 NY2d 86; People v Barber, 289 NY 378.)

      Louis J. Lefkowitz, Attorney-General (Jules E. Orenstein and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law in the second above-entitled action.
    New York’s death penalty is constitutional. (People v Patterson, 39 NY2d 288; Furman v Georgia, 408 US 238; Gregg v Georgia, 428 US 153; Proffitt v Florida, 428 US 242; Jurek v Texas, 428 US 262; Woodson v North Carolina, 428 US 280; Roberts v Louisiana, 428 US 325; People v Kaiser, 21 NY2d 86; Berger v New York, 388 US 41; People v Epton, 19 NY2d 496, 390 US 29.)

      Sara Halbert and Bruce J. Ennis for New York Civil Liberties Union, amicus curiae, in the second above-entitled action.
    I. Section 60.06 of the Penal Law violates the Eighth Amendment to the United States Constitution. (Roberts v Louisiana, 428 US 325; Woodson v North Carolina, 428 US 280; Williams v Oklahoma, 428 US 907.) II. Section 60.06 of the Penal Law violates section 5 of article I of the New York State Constitution. (Trop v Dulles, 356 US 86; Weems v United States, 217 US 349; Furman v Georgia, 408 US 238; McGinnis v Royster, 410 US 263; Tigner v Texas, 310 US 141.)
   OPINION OF THE COURT

Cooke, J.

In the setting of these two appeals, in each of which defendant has been sentenced to death, we are called upon to determine the constitutionality of New York’s death penalty statute—a legal issue—not to express our views as to whether such a statute, granted that it is constitutional, is wise or advisable—a legislative concern.

I

Defendant Joseph Davis appeals directly from a judgment of the Supreme Court, Westchester County, convicting him, after a jury trial, of murder in the first degree, two counts of robbery in the first degree, two counts of robbery in the second degree and criminal possession of a weapon in the second degree, and sentencing him to death for the crime of murder in the first degree and to various indeterminate terms for the other crimes.

At about 10:30 p.m. on September 17, 1974, Officer Harold Woods of the Yonkers Police Department was in plain clothes and on his way to report for duty when he stopped at an A & P in Yonkers for a container of milk. As he attempted to leave the market, one of two men who were in the process of robbing the place stopped him. When Woods identified himself as a policeman, the robber shot him in the neck causing his death five days later. Favia, the assistant manager of the A & P, testified that a man approached him, produced a gun, directed him to the cashier’s booth where Mary Cahill was preparing the night’s deposit and then ordered them to put money into a canvas bag which he carried. While placing money in the sack, Favia heard a shot at the front of the store and a voice saying "Come on, man, we have to get out of here.” Kevin Wynne, the boyfriend of Mary Cahill, related that another man, whom he identified as defendant, stood by the door; that, when a customer attempted to leave, defendant pushed him back; and that, when the customer proceeded forward again, inquired what was going on and said he was a cop, defendant took out a gun and shot him. Mary Cahill swore that, after she and Favia had placed over $5,000 into the bag, she heard a man near the front doors say "Oh, you’re a cop”, followed by an expletive and then a shot. Charlie Cola, a produce clerk, testified he saw defendant push a man in the front entrance area and say "Get back in there”, that defendant pushed the man again saying "Get back into the store”, that the man said "What are you doing? I’m a cop” and that defendant then shot him. Ann Ringler, a checker, heard a "pop” by the door, looked over and saw a man fall to the floor bleeding with defendant standing over him. Melvin Jones, an FBI informer, took the stand and stated that on September 18, 1974 he was at a bar in Manhattan when defendant and "Bo” Perkins appeared, that they told him they did something and had just "wasted” a guy up in Yonkers or Mount Vernon, that they both had .38 revolvers and money, that defendant gave him a $50 bill and also gave money to Lu, the owner of the bar who was defendant’s girl friend.

Defendant testified in his own behalf. He recalled that he flew to New Orleans on a Delta Airlines flight on September 6, 1974, that the plane arrived there in the evening and was met by defendant’s first cousin, Arthur Johnson. He stated that at no time did he leave the New Orleans or Napoleonville areas of Louisiana during the period ensuing from his arrival until his arrest on September 28, 1974 and that while at New Orleans he worked with Mitchell Romar as an auto mechanic. He denied being in the City of Yonkers on September 17, that he had killed a police officer on that day and that he had met Jones during the interval in question. Arthur Johnson and his wife testified as to defendant’s living with them while in New Orleans and specifically that he was in their home both on September 17 and September 18 at the times mentioned. Arthur Johnson told of defendant’s work with Romar. Romar swore that on September 17 and 18 he had worked with defendant. Lucia Thompson, the owner of the Manhattan bar, testified that the last she saw defendant prior to trial was on September 6, 1974 when he enplaned to New Orleans, that she did not see him on September 17 or 18 and that he did not give her any money from September 6, 1974 through the remainder of that month.

On rebuttal, Danny Mese testified that on September 17 he saw a tow truck operated by a man named Mitchell and that he did not see anyone with him. A Delta Airlines stewardess testified she saw defendant on a flight from New Orleans to New York on September 11, 17 or 23.

Defendant contends that it was error for the court not to admit into evidence, unconditionally on his offer, a photograph identified as People’s Exhibit 35. Utilizing a device creating a photo montage incorporating certain features of a suspect which is then projected upon a screen, Wynne assisted in the construction of two images resembling the two men involved in the A & P robbery—"[f]irst * * * the robber” and "then the shooter”. Photographs were then taken of each projection in the same order. When asked what Exhibit 35 was, Wynne responded: "It’s supposed to be the picture of the man that shot the police officer.” He stated that the exhibit was not a photographic reproduction of the picture that was on the screen, differing in that "like the face blew up. The cheeks were larger. Like the eyebrows became lighter. As you can see, there was like a glare on the screen from the picture, and that’s pretty much what happened. Like it just blew up the face entirely.” The witness identified Exhibit 36 as "supposed to be the photograph of the robber” and said that both photos were distorted from the pictures he had seen on the screen, that "[t]hese are not the guys I picked” and that "these are the photographs they handed me as being the robber here and the shooter here, and I disagreed * * * [b]ecause of the facial features, that they’re wrong.” Although the trial court ruled that it would not admit one photograph without the other, under the circumstances evinced in Wynne’s testimony, it cannot be said that the rejection of Exhibit 35 was error (see Alberti v New York, Erie & Western R. R. Co., 118 NY 77; Nies v Broadhead, 75 Hun 255, 256; Catanese v Quinn, 29 AD2d 675; McCormick, Evidence [2d ed], § 214; Richardson, Evidence [Prince—10th ed], § 137; Fisch, New York Evidence [2d ed], § 142, p 82).

The name and address of Oliver Smith was listed in the People’s alibi notice of rebuttal. The People did not call Smith but the defendant did call him as a surrebuttal witness, whereupon he testified that he gave to the Yonkers police a signed statement dealing with the case and that he "had made [the] statement under duress.” At that point, an objection was made and sustained. In discussing the ruling, defense counsel stated, relating a conversation he had with Smith, that Smith had been taken to a precinct in New York City where he was interrogated, that a day or two later he was picked up by New York City police in the company of a Yonkers detective or two and taken to a second New York City precinct for questioning, that at this juncture he told "them” he was on parole and "they” said "Well, look, Smith, just by being in this headquarters you are in violation of parole”, that they prodded him as to when he last saw Davis, that at a fourth interview in Yonkers Smith said "Look, fellows, you write down anything you want about what I know, and I will sign it”, and that, as counsel understood it, the statement says he saw Davis in New York during the middle of September, 1974. While a party’s attempt to procure false testimony or to corrupt a witness, though collateral to the issues, is competent as an admission by acts and conduct that the party’s case is weak and its evidence dishonest (Nowack v Metropolitan St. Ry. Co., 166 NY 433, 437) and while the fact that evidence was fabricated is admissible even though the evidence itself was not used (see 1 Wharton’s Criminal Evidence [13th ed], § 218), there is no indication, much less proof, of falsification on the part of the police or misconduct such as bribery of a witness nor any "fastening” of such wrongdoing to the prosecution (see McCormick, Evidence [2d ed], § 273, p 660). Here, the statement signed by Smith was not offered or received in evidence.

Relevant evidence means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” (Uniform Rules of Evidence, rule 401 [1974]). It tends to convince that the fact sought to be established is so (People v Yazum, 13 NY2d 302, 304). Relevance, however, is not always enough, since "even if the evidence is proximately relevant, it may be rejected if its probative value is outweighed by the danger that its admission would prolong the trial to an unreasonable extent without any corresponding advantage; or would confuse the main issue and mislead the jury; or unfairly surprise a party; or create substantial danger of undue prejudice to one of the parties” (Richardson, Evidence [Prince—10th ed], § 147, p 117; see, also, People v Harris, 209 NY 70, 82; McCormick, Evidence [2d ed], § 185, pp 438-440). Since the attempt to introduce Smith’s testimony on a collateral issue was for the obvious purpose of creating the impression that a substantial portion of the prosecution’s proof was tainted in a fashion similar to the proffered Smith account, the probative value of the testimony could be outweighed by dangers that the main issue would be obscured, by prolongation of trial and by the solid possibility of undue prejudice to the prosecution. Therefore, the discretion of the trial court was not abused (see Radosh v Shipstad, 20 NY2d 504, 508; Fisch, New York Evidence [2d ed], § 3, p 5).

There is no merit to defendant’s assertion of error because of the denial of a new trial. The newly discovered evidence which formed the basis of the motion consisted of a copy of an airline schedule, purportedly to prove that defendant could not have returned by air to New Orleans from the New York area after the commission of the crime on September 17, so as to have been seen by the Johnsons in New Orleans early on the morning of September 18. Such proof would be relevant only if one accepted the alibi testimony of defendant, his relatives and friends, which proof was not accepted by the jury. It is conceded in appellant’s brief that defense counsel was aware during trial of certain airline schedules and that "very close to the end of the trial * * * a local travel agent acquainted the defense with a publication known as the Official Airline Guide published by Reuben Donnelly in Chicago.” It is a portion of this Donnelly publication which defense seeks to introduce as new evidence, yet significantly no application was made during trial for an adjournment to secure it. In any event, the evidence was not "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 330.30, subd 3).

II

The second appeal involves a judgment of the Supreme Court, Kings County, convicting Joseph James of murder, first degree; murder, second degree; attempted murder, second degree; assault, first degree; criminal possession of a weapon, second degree; and escape, second degree; and sentencing him to death for murder in the first degree and to concurrent prison terms for the other crimes. This, too, is a direct appeal.

There was proof that, on the morning of September 9, 1975, James, in the custody of Officers Connor and Motchan of the New York City Department of Corrections, was escorted to the dental clinic at the Kings County Hospital for examination. At that time defendant was incarcerated awaiting trial on an unrelated murder charge. While waiting for X rays to be taken defendant, cuffed to Motchan, asked to go to the lavatory. Motchan, unarmed, went into a bathroom with defendant and removed a chain from defendant’s wrist. Connor, who was armed, remained outside. Defendant seized a pistol, which had been secreted at his request in the bathroom earlier in the day by his girl friend, and confronted Officer Motchan with the weapon. Motchan opened the door and warned his colleague that defendant had a gun, whereupon defendant shot and killed Motchan. Defendant then fired at and hit Connor twice, shot a patient-bystander and escaped from the hospital. Defendant did not take the stand.

Defendant’s brief and reply brief in this court contain points to the effect that the trial court’s Sandoval rulings constituted prejudicial error requiring a retrial and that said court violated the principles of Witherspoon v Illinois (391 US 510) in dismissing six persons in the venire. After filing said briefs, defendant’s appellate counsel, orally and in writing and with defendant’s concurrence after a discussion with trial counsel, has requested the court "not to consider, and treat as withdrawn” these arguments for relief as well as any portion of the point in said briefs to the effect defendant was not provén guilty of murder in the first degree beyond a reasonable doubt, which could be construed as arguments for a new trial. While these grounds, as to which there has been such a request and withdrawal and for which a reason has been ascribed, are deemed without merit, in the context of our adversary system there is no reason to interfere with this appellate strategy involving a conscious choice not to raise certain issues (see People v De Renzzio, 19 NY2d 45, 50-51; Ennis v Le Fevre, 560 F2d 1072; cf. People v DiPiazza, 24 NY2d 342, 352; People v Castro, 19 NY2d 14, 17-18).

III.

We all agree that as to defendant Davis, while the facts support a conviction of the crime of murder in the second degree, there has not been proof of guilt beyond a reasonable doubt as to all of the elements of the crime óf murder in the first degree. After careful review, there continues to be doubt among us concerning whether the victim, Officer Woods, was acting in the line of duty when he was killed, which is one of the elements of murder in the first degree as specified by our Legislature (Penal Law, § 125.27, subd 1). Accordingly, as to defendant Davis we conclude on nonconstitutional grounds that his guilt of murder in the first degree has not been established, and thus do not reach the constitutional issue as to him.

IV

On the other hand, as to defendant James we conclude that there has been proof beyond a reasonable doubt of his guilt of murder in the first degree, for which he has been sentenced to death, and thus now consider his contention that the statutory death penalty provisions under which he was sentenced are unconstitutional. Section 60.06 of the Penal Law, pursuant to which these sentences were imposed provides that ”[w]hen a person is convicted of murder in the first degree as defined in section 125.27, the court shall sentence the defendant to death.” Thus, when read with section 125.27, New York has enacted a death penalty statute which positively provides for a mandatory death sentence for all persons over 18 years of age found to have intentionally caused the death (1) of a police officer in the line of duty where defendant knew or had reason to know the victim was such an officer, or (2) of an employee of a State correctional institution or local correctional facility under such circumstances (as specified in [1]), or (3) of anyone if defendant was confined or in custody for a life term or upon an indeterminate sentence with a maximum of life and a minimum of at least 15 years or if defendant had escaped from such confinement or custody and had not yet been returned.

We approach our consideration of this issue with full recognition that the State statutes under scrutiny carry with them a strong presumption of constitutionality, that they will be stricken as unconstitutional only as a last resort and that courts may not substitute their judgment for that of the Legislature as to the wisdom and expediency of the legislation. As stated by Justice Blackmun in his dissent in Furman v Georgia (408 US 238, 411): "We should not allow our personal preferences as to the wisdom of legislative * * * action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great”. At the same time, it must be kept firmly in mind that this court, as other State courts, is bound by rulings of the United States Supreme Court as to the validity of State statutes under the United States Constitution (Magnolia Petroleum Co. v Hunt, 320 US 430, 438; Bourjois Sales Corp. v Dorfman, 273 NY 167, 171).

The Eighth Amendment to the United States Constitution provides that "cruel and unusual punishments [shall not be] inflicted”, and the Fourteenth Amendment by its due process clause prohibits the infliction of such punishment by a State (Francis v Resweber, 329 US 459, 463). In People v Fitzpatrick (32 NY2d 499, 512-513), in considering former death penalty statutes in this State (Penal Law, former §§ 125.30, 125.35), this court stated that "[s]ince * * * the New York statute * * * challenged * * * leaves infliction of the death penalty solely to the discretion of the jury, we conclude, in light of the Supreme Court’s reading of the Eighth Amendment in Fur-man [v Georgia] (408 U. S. 238, supra), that we have no alternative but to hold that that penalty constitutes cruel and unusual punishment within the sense of that provision”. Since that decision, New York has enacted section 125.27 of the Penal Law (L 1974, ch 367, § 5) which specifies the instances when murder in the first degree is committed and which incorporates two affirmative defenses applicable to those instances—that "defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” and that "defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide.”

Since the enactment of section 125.27, the Supreme Court has issued several opinions concerning State statutes revised in an effort to conform to Furman v Georgia. In Gregg v Georgia (428 US 153), the plurality opinion of the court summarized, at page 195, that "the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information”. (Emphasis added.) In Woodson v North Carolina (428 US 280, 304), it was held that "the fundamental respect for humanity underlying the Eighth Amendment * * * requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death”. In Roberts (Stanislaus) v Louisiana (428 US 325), it was made clear that this principle applies even where the crime of first degree murder is narrowly defined. There it was stated at page 332: "That Louisiana has adopted a different and somewhat narrower definition of first-degree murder than North Carolina is not of controlling constitutional significance. The history of mandatory death penalty statutes indicates a firm societal view that limiting the scope of capital murder is an inadequate response to the harshness and inflexibility of a mandatory death sentence statute.” This analysis is not based simply on the Supreme Court’s conclusion that mandatory death sentences are unduly harsh insofar as they fail to take into account mitigating circumstances; it is also based on the historical fact that "[a]t least since the Revolution, American jurors have, with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict” (Woodson v North Carolina, 428 US 280, 293, supra).

Based on these statements, since New York’s statute provides neither for the furnishing of information, without which there cannot be consideration of the individual offender and the circumstances of a particular offense, nor standards to guide the sentencing authority in the use of that information had it been furnished, unconstitutionality is certainly indicated. Indeed, since the statute requires by its terms a mandatory death penalty for the enumerated crimes, it is indistinguishable from those death penalty statutes found unconstitutional in Woodson v North Carolina (428 US 280, supra) and Roberts (Stanislaus) v Louisiana (428 US 325, supra). (See People v Velez, 88 Misc 2d 378 [McQuillan, J.].)

Any doubt concerning the question of constitutionality, however, has now been removed and has been firmly resolved by the Supreme Court in Roberts (Harry) v Louisiana (431 US 633). It is decisive. There, Harry Roberts was indicted and convicted of first degree murder of a police officer, engaged at the time of his death in the performance of his duties, and, as required by Louisiana statute (La Rev Stat Ann, § 14:30), was sentenced to death. There, in view of prior holdings (see 431 US, at p 638, n 7), a majority of the Supreme Court, with clarity and direction and without obfuscation, stated (pp 636-637):

"To be sure, the fact that the murder victim was a peace officer performing his regular duties may be regarded as an aggravating circumstance. There is a special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property. But it is incorrect to suppose that no mitigating circumstances can exist when the victim is a police officer. Circumstances such as the youth of the offender, the absence of any prior conviction, the influence of drugs, alcohol, or extreme emotional disturbance, and even the existence of circumstances which the offender reasonably believed provided a moral justification for his conduct are all examples of mitigating facts which might attend the killing of a peace officer and which are considered relevant in other jurisdictions.

"As we emphasized repeatedly in Roberts and its companion cases decided last Term, it is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense. Because the Louisiana statute does not allow consideration of particularized mitigating factors, it is unconstitutional”. (Emphasis added.)

So, too, plainly and simply and without verbiage, because the New York statute "does not allow consideration of particularized mitigating factors” for purposes of "the capital sentencing decision” as to "the particular offender”, it is unconstitutional.

That the statutory framework may in some manner reflect various mitigating factors as defenses is not enough to save New York’s death penalty statute from constitutional infirmity. Similar defenses are found in other jurisdictions, including those whose death penalty statute has been held unconstitutional by the Supreme Court. For example, Louisiana has many of the same defenses found in the New York statutes: (1) "sudden passion or heat of blood” in given circumstances may reduce a homicide to manslaughter (La Rev Stat Ann, § 14:31, subd [1]); (2) justification is a defense to prosecution for a crime (§ 14:18); (3) incapacity to distinguish between right and wrong because of mental disease or defect is a defense (§ 14:14), and intoxication may preclude specific criminal intent (§ 14:15). Similar to New York’s defense of duress (Penal Law, § 40.00) is Louisiana’s justification defense of compulsion, but such is not a defense to murder in that jurisdiction (see La Rev Stat Ann, § 14:18, subd [6]). In addition, Louisiana has a defense of infancy (§ 14:13), as does New York (Penal Law, § 30.00), but its statute does not set forth a specific age limitation in the case of capital crimes. In this respect, however, under the recent decisions of the Supreme Court the exclusion of an entire category of offenders under 18 years of age by New York (Penal Law, § 125.27, subd 1, par [b]) from punishment by death is not a mitigating factor since such limitations do not afford individualized consideration of the offender (Rockwell v Superior Ct. of Ventura County, 18 Cal 3d 420, 438). Aside from the fact that Louisiana’s law includes many of the same defenses, examination of the statutory defenses reveals their inadequacy as a solution to the constitutional deficiencies of New York’s death penalty statute.

The problem lies partly in the distinction between a defense as that term is used in criminology and mitigating factors as described by the Supreme Court. The answer does not turn on whether mitigating factors may be considered at the guilt portion of the trial or whether such factors may be elevated to defenses. The problem is of greater magnitude than mere procedure or form. In a statutory framework where there is no distinct consideration of mitigating factors, there is an inherent fallacy in the notion that defenses provide the same function or are as good as or even better than separate consideration of such mitigating factors. The fundamental error in the reasoning is that defenses relate to guilt or innocence whereas a mitigating factor may be of no significance to a determination of criminal culpability. This was recognized in Gregg v Georgia (428 US 153, 190, supra), when it was noted that "[m]uch of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question.” The point is that what is urged in mitigation will often not rise to the level of a defense. For example, in considering the third question of the Texas statute, which asks whether the conduct of the defendant was unreasonable in response to any provocation by the deceased, it was remarked: "This might be construed to allow the jury to consider circumstances which, though not sufficient as a defense to the crime itself, might nevertheless have enough mitigating force to avoid the death penalty—a claim, for example, that a woman who hired an assassin to kill her husband was driven to it by his continued cruelty to her” (Jurek v Texas, 428 US 262, 272, n 7). In short, statutory defenses alone do not take the place of a distinct consideration of mitigating factors, and this is all the more so where those defenses do not include a significant portion of what first the plurality and now the majority of the Supreme Court has emphasized should be examined—the character and record of the defendant.

The plurality of the Supreme Court was careful to state that it was not suggesting that a finding of constitutionality was dependent on following exactly the procedures used in those statutes upheld by it, instead explaining that "each distinct system must be examined on an individual basis” (Gregg v Georgia, 428 US 153, 195, supra). But, except in circumstances not relevant here, the common thread running through the court’s analysis of statutes of other jurisdictions is that there should be a consideration of the "relevant facets of the character and record of the individual offender” (Woodson v North Carolina, 428 US 280, 304, supra) or, "the attributes of the individual offender” (Roberts [Stanislaus] v Louisiana, 428 US 325, 334, supra). This requirement was derived from the observation that traditionally a determination of what is an appropriate sentence requires an investigation of the "character and propensities of the offender” (Gregg v Georgia, 428 US 153, 189, supra, quoting from Pennsylvania ex rel. Sullivan v Ashe, 302 US 51, 55). Therefore, it was reasoned that the "futility of attempting to solve the problems of mandatory death penalty statutes by narrowing the scope of the capital offense stems from our society’s rejection of the belief that 'every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender’ ” (Roberts [Stanislaus] v Louisiana, 428 US 325, 333, supra, quoting from Williams v New York, 337 US 241, 247).

Of telling significance, the New York defenses do not take into account the character, propensity, record or attributes of the individual offender. This omission results from the simple fact that an unblemished record and evidence of prior good character has never been considered as a defense, and probably never will be. Of course, one may infer character from conduct, but the Supreme Court has indicated that a more individualized consideration is necessary. Hence, while there may be some visual or empirical satisfaction derived from counting and generally comparing the New York defenses with the mitigating factors indorsed by the Supreme Court, the fact is that these defenses do not require consideration of the character and record of the individual in respect to his sentence or punishment as mandated by the Supreme Court (see, e.g., Roberts [Harry] v Louisiana, supra).

This individualized consideration, with proper guidance and standards, is the crucial aspect of the sentencing decision. "What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine” (Jurek v Texas, 428 US 262, 276, supra). New York’s defenses simply do not present the required information and, if the defenses are not established, the defendant must be sentenced to death. New York’s law does not permit a jury which has rejected these defenses and has found a defendant guilty of murder in the first degree to then mitigate the punishment by resurrecting the defenses. Indeed, this is implicit in our justification defense statute which states that "[t]he necessity and justifiability of * * * conduct may not rest upon considerations pertaining only to the morality and advisability of [a] statute” (Penal Law, § 35.05, subd 2; see Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 35.05, p 83).

Accordingly, the argument urging constitutionality fails for two reasons: initially, because the statutory framework does not permit the consideration of legally insufficient defenses as mitigating factors, and, more importantly, because these defenses do not present sufficient information about the character and record of the individual to allow a constitutionally permissible sentencing decision. Properly viewed, it is thus apparent that our statute is a mandatory capital punishment statute of the same type as has been struck down by the Supreme Court.

V

Under the Constitution of our State, in capital cases in which the sentence of death has been imposed, this court is vested with the power to and must review the facts (NY Const, art VI, §§ 3, 5; People v Carbonaro, 21 NY2d 271, 274). The scope of our inquiry into the facts in capital cases was defined in People v Crum (272 NY 348, 350): "A review of the facts means that we shall examine the evidence to determine whether in our judgment it has been sufficient to make out a case of murder beyond a reasonable doubt. We are obliged to weigh the evidence and form a conclusion as to the facts. It is not sufficient, as in most of the cases with us, to find evidence which presents a question of fact; it is necessary to go further before we can affirm a conviction and find that the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt.”

In summary, under the United States Constitution, the death penalty is not per se unconstitutional, but New York’s statute, as presently written, in the absence of any provision in it for consideration of relevant and particularized mitigating factors, despite its narrow categories and various statutory defenses, is unconstitutional under recent holdings of the United States Supreme Court. Since we have determined under the decisions of the United States Supreme Court, the ultimate arbiter on the question, that the sentence of death as imposed on defendant James was invalid as a matter of law, that part of the judgment of conviction must be modified (CPL 470.15, subd 4, par [c]). In addition, as noted, as to defendant Davis we have determined on nonconstitutional grounds that his guilt of murder in the first degree has not been established beyond a reasonable doubt. However, based on our review of the records, as to the respective indictment counts charging murder in the first degree, we determine that in each case there has been a showing beyond a reasonable doubt of defendant’s guilt of murder in the second degree in violation of subdivision 1 of section 125.25 of the Penal Law, and hence there should be a resentencing of each defendant.

As to appellant Davis, the judgment should be modified by vacating the sentence of death and the case remitted to Supreme Court, Westchester County, for resentencing and, as so modified, the judgment should be affirmed.

As to appellant James, the judgment should be modified by vacating the sentence of death and the case remitted to Supreme Court, Kings County, for resentencing, and, as so modified, the judgment should be affirmed.

APPENDIX

"A person is guilty of murder in the first degree when:

"1. With intent to cause the death of another person, he causes the death of such person; and

"(a) Either:
"(i) the victim was a police officer as defined in subdivision 34 of section 1.20 of the criminal procedure law who was killed in the course of performing his official duties, and the defendant knew or reasonably should have known that the victim was a police officer; or "(ii) the victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was killed in the course of performing his official duties, and the defendant knew or reasonably should have known that the victim was an employee of a state correctional institution or a local correctional facility; or
"(iii) at the time of the commission of the crime, the defendant was confined in a state correctional institution, or was otherwise in custody upon a sentence for the term of his natural life, or upon a sentence commuted to one of natural life, or upon a sentence for an indeterminate term the minimum of which was at least fifteen years and the maximum of which was natural life, or at the time of the commission of the crime, the defendant had escaped from such confinement or custody and had not yet been returned to such confinement or custody; and
"(b) The defendant was more than eighteen years old at the time of the commission of the crime.

"2. In any prosecution under subdivision one it is an affirmative defense that:

"(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime except murder in the second degree; or
"(b) The defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime except murder in the second degree.

"Murder in the first degree is a class A-l felony.”

Chief Judge Breitel (dissenting in part).

I would modify in the Davis case to reduce the conviction to murder in the second degree on the ground that defendant’s guilt of murder in the first degree has not been established in law and in fact beyond a reasonable doubt. Consequently, it is not, in the Davis case, necessary or appropriate to reach any constitutional issue concerning New York’s capital punishment statute. I would affirm in the James case on the ground that his guilt of murder in the first degree has been established beyond a reasonable doubt and that the New York statute appears to meet the latest tests for validity laid down by the United States Supreme Court.

The constitutional issue before the court is, as the majority opinion observes, not to be determined by the philosophical or penological predilections of the court or its individual members on the appropriateness of capital punishment as a sanction in a civilized society. Instead, the issue is whether Federal constitutional limitations allow the Legislature as the lawmaking representatives of the people to determine the values and judgments to be attached to the several factors influencing the choice of capital punishment as a sanction.

Davis and James, defendants in unrelated criminal cases, each convicted of first degree murder and sentenced to death, appeal directly to this court (NY Const, art VI, § 3, subd b; CPL 450.70). One intentionally killed a police officer. The other intentionally killed a correction officer.

There are two issues. The first, given this court’s power to review the facts in a capital case, is whether, in each case, the evidence justifies the jury’s verdict (NY Const, art VI, § 3, subd. a; CPL 470.30, subd 1). The second is whether section 60.06 of the Penal Law, providing capital punishment for first degree murder, an offense defined in narrow terms (Penal Law, § 125.27), violates Federal constitutional proscriptions of cruel and unusual punishment (US Const, 8th Arndt; see, also, NY Const, art I, § 5).

The evidence in the Davis case failed to establish beyond a reasonable doubt that the police officer killed was acting in the line of duty at the time he was shot. Hence, the crime of first degree murder was not made out and there should be a modification.

The judgment against defendant James should be affirmed. In his case, every element of first degree murder was established beyond a reasonable doubt. Because the New York statute defining first degree murder is so narrowly drawn, and because the statutory scheme takes into consideration possible mitigating factors by making them defenses to the substantive crime, it does not run afoul of constitutional limitations.

On September 17, 1974, Davis participated in an armed robbery of a supermarket. While his collaborator filled a canvas bag with money in excess of $5,000, Davis stood watch, relatively inconspicuously, just inside the exit door. Police Officer Woods, not in uniform, but about to report for work, had just paid for his purchases, apparently unaware of the ongoing robbery. As Woods attempted to leave the store, he was shoved by Davis and ordered to "get back in the store.” Recovering and starting out for a second time, he was again repulsed. Angrily, according to one witness, he exclaimed, "What are you doing. I’m a cop.” Davis responded with a statement, "You’re a cop, huh”, and a bullet, which felled Officer Woods. This exchange was corroborated by other witnesses. Davis and his cohort emptied another cash register, ordered everyone to the back, and left. Officer Woods, having suffered a severed spinal cord, died five days later of broncho-pneumonia.

At trial, the proof of Davis’ guilt was overwhelming. Six witnesses placed him at the scene; four of these witnessed the killing and identified Davis as the killer. In addition, an FBI informer testified to admissions made to him by defendant. The defense sought to place Davis in New Orleans at the time of the shooting, but his alibi witnesses failed to contradict convincingly the strong evidence presented by the prosecution.

Thus, the evidence leads, inexorably, to the conclusion that Davis intentionally killed Officer Woods.

There is no doubt whatever that appellant James is guilty of the killing of Correction Officer Motchan. For almost two months, James, jailed on a pending murder charge, with an impending probability of a life sentence, discussed his escape with a girl friend, Patricia Singleton, during daily telephone conversations. Then on September 7, 1975, on defendant’s request, the girl friend procured a gun. After receiving further instructions from defendant on the morning of September 9, Miss Singleton left the gun in the lavatory in the Kings County Hospital Dental Clinic, where James had an appointment that day.

James was escorted to the clinic by two correction officers, Motchan and Connor. When defendant asked to use the lavatory, Officer Motchan, unarmed, accompanied him, while Officer Connor waited outside the door. After some scuffling in the lavatory, Officer Motchan emerged, without being able to close the door behind him, warning Connor that appellant had a gun. A shot from the lavatory hit Motchan in the back, mortally wounding him, and James, in the course of his escape, also wounded Officer Connor and an innocent bystander in the now-panicked waiting area.

James contended that the undisputed shooting was an "accident”, caused by Motchan’s stumbling as he left the lavatory. But the testimony of eyewitnesses does not support this contention, and defendant’s continued shooting at other bystanders belies it. And if more' be needed, there is defendant’s desperate letter to a former girl friend, sent days before the attempted escape: "Listen, Debbie, I am very serious about what I am about to say. I am going to have an interview this week. I’m getting out of here or die trying. And if I die trying, you know me, that I am going to take someone with me”.

Although it is beyond reasonable doubt that each appellant intentionally caused the death of his victim, in the Davis case, a police officer, and in the James case, a correction officer, that alone is not enough to establish a violation of section 125.27 of the Penal Law. The restricted scope of that section requires that the officer be "killed in the course of performing his official duties” (subd 1, par [a], els [i], [ii]). As to this element, there was a failure of proof in the Davis case. True, decedent Woods announced "I’m a cop”, provoking Davis to shoot him. But from those words alone, one may not draw beyond a reasonable doubt the inference that Woods was acting in the line of duty. And there is no more. Woods might have uttered the words expecting only to induce Davis into moving aside and letting him continue on his way. Other likely explanations exist. The point is not that these inferences are any better than the one drawn by the prosecution; the point is rather that there is not evidence beyond a reasonable doubt to support any one inference more than another arising out of Woods’ utterance. The result is that one may only speculate about the decedent’s state of mind and his intentions. Davis’ conviction must, therefore, be reduced to one for murder in the second degree.

The James case, by contrast, falls squarely within the proscription of the statute (Penal Law, § 125.27). What remains to be addressed is only the constitutional challenge to the statute mandating a sentence of death (Penal Law, § 60.06).

Section 125.27 of the Penal Law, defining first degree murder, is applicable only to three categories of intentional killing. The first two cover killings of police officers and correctional employees in the course of performing their duties, where defendant knew or reasonably should have known that the victim was a police officer or correctional employee (subd 1, par [a], els [i], [ii]). The third category applies to defendants who were life prisoners or escaped life prisoners (cl [iii]). There are, significantly, two ameliorative provisions in the statute. First, a defendant may not be convicted of first degree murder unless he is at least 18 years of age (subd 1, par [b]). Second, it is a defense in a prosecution for first degree murder that defendant acted under the influence of extreme emotional disturbance (subd 2, par [a]).

It is now settled, for the nonce, at least, that capital punishment, per se, does not violate Federal constitutional prohibitions of cruel and unusual punishment (Gregg v Georgia, 428 US 153, 168-187; Proffitt v Florida, 428 US 242, 247; Jurek v Texas, 428 US 262, 268). Although the Supreme Court has held invalid mandatory capital punishment statutes covering a wide range of offenses, it has never been held that all mandatory capital punishment statutes are necessarily inconsistent with the Constitution (see Roberts [Harry] v Louisiana, 431 US 633; Roberts [Stanislaus] v Louisiana, 428 US 325; Woodson v North Carolina, 428 US 280). In fact, it has been noted, explicitly, that mandatory capital punishment statutes applied to assaults or murders committed by prisoners serving life sentences might well pass constitutional muster (Roberts [Harry] v Louisiana, 413 US 633, 637, n 5, supra; Roberts [Stanislaus] v Louisiana, 428 US 325, 334, n 9, supra; see Gregg v Georgia, 428 US 153, 186, supra; Woodson v North Carolina, 428 US 280, 292, n 25, supra).

The life prisoner presents a special case, according to the Supreme Court, because there may be no satisfactory deterrent other than the death penalty. But the court did not hold that only in the case of a life prisoner may a mandatory capital punishment statute be applied. Only a weak imagination would fail to perceive other cases just as special as that of the life prisoner. For instance, belief that a soldier is frightened of death and considering desertion in time of war may justify the threat of capital punishment to keep him at his station. And, of course, a prisoner like appellant James in the instant case, not yet sentenced to life imprisonment, but facing a murder charge which could well bring upon him such a sentence, presents a case no different from that of the life prisoner. Nor would the killing of a victim of or witness to a crime punishable by life imprisonment, to prevent successful identification and prosecution for the first crime, be of a different nature.

The Supreme Court has recognized, then, that mandatory capital punishment statutes applicable only in very special cases may not run afoul of constitutional limitations. It is not, however, necessary to decide whether all the categories of section 125.27 of the Penal Law constitute "special” cases, because the New York statute is not truly a "mandatory” capital punishment statute, as that term has been used by the Supreme Court.

Crucial are the statutory defense of extreme emotional disturbance and the limitation on conviction of first degree murder to persons more than 18 years old. These mitigating circumstances are precisely the kind of factors, specific to the offense or the offender, which the Supreme Court has required to sustain capital punishment statutes (see, e.g., Gregg v Georgia, 428 US 153, 193-195, n 44, supra). In fact, of the eight mitigating circumstances proposed by the Model Penal Code, and cited in Gregg, six are, in some manner, reflected in the New York statutory scheme: (1) extreme emotional disturbance is a defense to murder (Penal Law, § 125.27, subd 2, par [a]); (2) conduct causing or aiding another to commit suicide may not bring a conviction for murder (Penal Law, § 125.27, subd 2, par [b]); (3) justification for the killing is a defense (Penal Law, art 35); (4) duress is a defense (Penal Law, § 40.00); (5) lack of capacity by reason of mental disease or defect is a defense (Penal Law, § 30.05), and intoxication may negative the intent to commit first degree murder (Penal Law, § 15.25; People v Koerber, 244 NY 147, 151-152; see People v Jackson, 14 NY2d 5, 7-8); and (6) only those over 18 years of age at the time the crime was committed may be convicted of first degree murder (Penal Law, § 125.27, subd 1, par [b]). (See Gregg v Georgia, 428 US 153, 193-194, n 44, supra, quoting ALI Model Penal Code, § 210.6 [Proposed Official Draft, 1962].)

It is notable that these are factors that the Supreme Court in the Roberts (Harry) case (431 US 633, 636-637, supra), relied on and quoted by the majority, stipulated as bearing upon the validity of a capital punishment statute. New York’s statutory scheme is even better in raising these factors to complete or partial defenses.

True, other capital punishment statutes sustained by the Supreme Court have provided for consideration of mitigating factors after the jury has convicted defendant of the substantive offense (Gregg v Georgia, 428 US 153, 196-198, supra; Proffitt v Florida, 428 US 242, 247-253; supra; Jurek v Texas, 428 US 262, 268-274, supra). But there is no reason to assume that mitigating factors could not, instead, and even preferably, be built into the definition of the substantive offense. Indeed, the Supreme Court itself used similar analysis in Jurek v Texas, indicating that narrowing the categories of murders for which capital punishment may be imposed serves much the same function as listing aggravating factors for the jury to consider (supra, p 270). The situation is analogous where mitigating factors are involved. Certainly, if every possible mitigating factor were made a defense to the substantive crime, there would be little reason for the jury to consider mitigating factors in making a discretionary sentencing determination.

Section 125.27 of the Penal Law does not, of course, encompass every conceivable mitigating circumstance. But the Constitution does not require so much. It is essential only "that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense” (Roberts [Harry] v Louisiana, 431 US 633, 637, supra).

Determining what circumstances are "relevant” must be a legislative, not judicial, task, at least once it has been determined that the Legislature has in fact decided to consider mitigating factors.

Nor in justice to the Supreme Court should it be assumed that that court would harden for all time under constitutional standards all conceivable categories of mitigating circumstances or that all must be accorded recognition, or that the procedure for their recognition must follow a particular pattern laid down by the court. It has had much too much trouble with this very problem not to be more flexible. The very caveats and provisos in its most recent opinions make this point explicit so that it is not necessary to have recourse to inference. Moreover, that court addresses constitutional principles and does not purport to write or dictate a statutory criminal code.

To recapitulate, it has never been held that all mandatory capital punishment statutes violate the cruel and unusual punishment clause of the Constitution. At least in a narrowly drawn category of special cases, a category which may be broad enough to include the entire New York statute, failure to provide for consideration of mitigating factors does not make a capital punishment statute constitutionally defective. But, in any event, the New York statute, although written in mandatory terms, is not embracively mandatory in that it does not encompass, indiscriminately and without consideration of mitigating factors, a mass aggregation of crimes. Thus, since section 125.27 of the Penal Law does require the jury to consider mitigating factors as elements of the substantive crime of first degree murder, there is no constitutional violation.

That the Constitution plays an important role in limiting the scope of capital punishment statutes is not now a matter of controversy. Unbridled jury discretion, because of possible discriminatory effects, must not be an element of the sentencing process in capital cases (Furman v Georgia, 408 US 238, reh den 409 US 902). At the opposite end of the spectrum, statutes which require mechanical application of the death penalty without any consideration of circumstances surrounding the crime and the criminal, are also unconstitutional (Roberts [Harry] v Louisiana, 431 US 633, 637, supra; Roberts [Stanislaus] v Louisiana, 428 US 325, 333, supra; Woodson v North Carolina, 428 US 280, 304, supra).

But within the constitutional limitations, the decision to impose capital punishment at all, as well as the decision when it should be imposed, remains within the province of the Legislature. True, it has never been established that capital punishment is an effective deterrent. But there may be other reasons, unrelated to utilitarian considerations, to justify the death penalty. Whatever one thinks of capital punishment, the Legislature is entitled to conclude, rightly or wrongly, that the death penalty serves useful social purposes. Since the Legislature has so concluded, and has drawn a statute that comports with constitutional requirements, the statute should be upheld.

The ultimate issue is whether society through its Legislature or lawmaking body may determine the usefulness of capital punishment or whether Judges are empowered to do so, recognizing that capital punishment has been a sanction throughout the history of Anglo-American law. Progressively, lawmaking bodies have restricted more and more the use of that sanction. Rarely, although on occasion, has the sanction been reinvoked. England treated the matter legislatively and eliminated the sanction for murder (Murder [Abolition of Death Penalty] Act, 1965, c 71, as amd by Statute Law [Repeals] Act, 1973, and Statute Law [Repeals] Act, 1974). Many States of the Union have abolished capital punishment. The Supreme Court, both in Furman, and in subsequent cases, has never presumed to strike down the sanction as inherently invalid. It has only attacked the procedures used which allowed arbitrariness or compelled mechanical absolutist application across a broad range of homicide offenses. Nor has it ever presumed, in this troubled area, to deny the power of the Legislature to rely on the extreme sanction. Its greatest concern has been the racial discrimination which resulted from the arbitrariness allowed fact finders and sentencing courts under the old procedures (see Furman v Georgia, 408 US 238, supra). In the later cases it reacted to the brutality and undiscriminating mechanical application of the "absolutist” cure to the risk of arbitrariness in the "discretionary” procedures which had prevailed before (see Woodson v North Carolina, 428 US 280, supra; Roberts [Stanislaus] v Louisiana, 428 US 325, supra; Roberts [Harry] v Louisiana, 431 US 633, supra). These are the concerns which motivated the Supreme Court’s treatment of the problem.

Accordingly, I dissent in part and vote to reduce the judgment against appellant Davis to a conviction of second degree murder, and to remit the case for resentencing, and to affirm the judgment against appellant James.

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

In People v Davis: Judgment modified and the case remitted to Supreme Court, Westchester County, for resentencing in accordance with the opinion herein and, as so modified, affirmed.

Judges Jones, Wachtler and Fuchsberg concur with Judge Cooke; Chief Judge Breitel dissents and votes to affirm in a separate opinion in which Judges Jasen and Gabrielli concur.

In People v James: Judgment modified and the case remitted to Supreme Court, Kings County, for resentencing in accordance with the opinion herein and, as so modified, affirmed.

      . Section 125.27 of the Penal Law, entitled "Murder in the first degree”, added by section 5 of chapter 367 of the Laws of 1974 and effective September 1, 1974 (see Appendix).

      . We are advised that this argument—that New York’s defenses reflect mitigating factors—was presented to the Supreme Court (see brief of the Attorney-General of State of New York as amicus curiae in Roberts [Harry] v Louisiana, supra).

      . The Supreme Court has reserved the question of whether or in what circumstances mandatory death sentence statutes may be constitutionally applied to prisonars serving life sentences (Roberts [Harry] v Louisiana, 431 US, at p 637, n 5, supra). Hence, we do not pass on the constitutionality of section 125.27 (subd 1, par [a], cl [iii]) of the Penal Law.

      . Inasmuch as we have declared our death penalty statute unconstitutional under the United States Constitution and the decisions of the United States Supreme Court, we need not pass upon its constitutionality under the State Constitution.

       Speaking for myself alone among the dissenters I find capital punishment repulsive, unproven to be an effective deterrent (of which the James case itself is illustrative), unworthy of a civilized society (except perhaps for deserters in time of war) because of the occasion of mistakes and changes in social values as to what are mitigating circumstances, and the brutalizing of all those who participate directly or indirectly in its infliction. This has been a lifelong view buttressed by over 40 years of experience as prosecutor, counsel to the Governor entailing 81 applications for commutation of capital sentences, Judge, member of the "National Crime Commission”, witness before the British Royal Commission on Capital Punishment, and member of the American Law Institute and its Advisory Committee on the Model Penal Code. In all of these roles, when appropriate, I actively resisted viewing capital punishment as a proper or useful sanction for civilian crime. (With respect to the dubiousness of capital punishment as a deterrent, see Royal Commission on Capital Punishment, 1949-1953 Report, pp 18, 328-380; Sellin, The Death Penalty [1959], pp 19-63; President’s Commission on Law Enforcement and Administration of Justice, Challenge of Crime in a Free Society, p 143; Model Penal Code, § 201.6, Comment [Tent Draft No. 9, 1959]; Temporary Commission on Revision of Penal Law and Criminal Code, Special Report on Capital Punishment [1965], pp 86-94, in NY Legis Doc, 1965, No. 25; Forst, Deterrent Effect of Capital Punishment: A Cross-State Analysis of the 1960’s, 61 Minn L Rev 743).


author: Jones, J. Cooke, J. (dissenting).

text:
    In the Matter of Beth Chauvel, Appellant, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued October 12, 1977;
    decided November 17, 1977

      POINTS OF COUNSEL

      Rocco A. Solimando, Bernard F. Ashe and Richard C. Heffern for appellant.
    I. Appellant has tenure in the secondary area and not in a specific subject. (Matter of Becker v Board of Educ., 9 NY2d 111; Matter of Van Heusen v Board of Educ., 26 AD2d 721; Matter of Baer v Nyquist, 34 NY2d 291.) II. The order of priority among teachers whose positions have been abolished is seniority in a general tenure area, not as to a specific subject. (Matter of Siniapkin v Nyquist, 68 Misc 2d 214; Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Amos v United Free School Dist. No. 9, 47 AD2d 711.) III. Subdivisions 2 and 3 of section 2510 of the Education Law have been construed in pari materia. (Matter of Mannix v Board of Educ., 21 NY2d 455; Matter of Kobylski v Agone, 37 Misc 2d 255, 19 AD2d 761; Matter of Lippold v Board of Educ,, 67 Misc 2d 499; Matter of Meliti v Nyquist, 41 NY2d 183; Matter of Steele v Board of Educ., 53 AD2d 674, 42 NY2d 840; Matter of Boyd v Collins, 11 NY2d 228.)

      Richard E. Clark for Board of Education of the Salmon River Central School District, respondent.
    I. The Legislature intentionally adopted wholly different criteria in subdivisions 2 and 3 of section 2510 of the Education Law. (Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Albano v Kirby, 36 NY2d 526; Matter of Hogan v Culkin, 18 NY2d 330.) II. Petitioner’s right to reinstatement under subdivision 3 of section 2510 is only to a "corresponding or similar” position, not to any position within the general secondary tenure area. (Matter of Abrams v Ambach, 43 AD2d 883; Matter of Baron v Mackreth, 30 AD2d 810, 26 NY2d 1039; Matter of Howard v Wyman, 28 NY2d 434; Matter of Lezette v Board of Educ., 35 NY2d 272.) III. The instant case is distinguishable on its facts from the underlying facts of Matter of Amos v United Free School Dist. No. 9 (47 AD2d 711).

      Judith M. Hecker, Robert D. Stone and Louis H. J. Welch for Commissioner of Education, respondent.
    I. The decision of the commissioner is final unless arbitrary, unreasonable or an abuse of discretion. (Bullock v Cooley, 255 NY 566; Matter of Board of Educ. v Allen, 6 NY2d 127; Matter of Vetere v Allen, 15 NY2d 259; Matter of Sullivan County Harness Racing Assn, v Glasser, 30 NY2d 269; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Mishkoff v Nyquist, 57 AD2d 649.) II. Respondent board of education complied with the relevant provisions of section 2510 of the Education Law. (Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588.) III. The commissioner’s construction of the statute in question is reasonable. (Bullock v Cooley, 225 NY 566; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Rochester Tel. Corp. v United States, 307 US 125; Matter of Marsh [Catherwood], 13 NY2d 235; Matter of Willcox v Stern, 18 NY2d 195; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588.) IV. Petitioner has no statutory claim to a position for which she is not certified. V. The court decisions in Lynch and Amos are not controlling in this case. (Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Amos v Union Free School Dist. No. 9, 47 AD2d 711.)
   OPINION OF THE COURT

Jones, J.

This is another of the several cases which collectively describe the maze which must be followed by teachers and boards of education alike through the interrelated provisions of the Education Law when the board in a bona fide retrenchment program finds it necessary to reduce teaching faculty.

In June, 1972 the Salmon River Board of Education abolished the junior high school French program and terminated the employment of appellant, Beth Chauvel, who had been a certified and tenured teacher of French in the program. She was informed that she would be placed on a preferred eligibility list and would be entitled to reinstatement if the program were re-established within the next four years. It appears that appellant did not at that time assert rights she may have had under subdivision 2 of section 2510 of the Education Law in consequence of the abolition of her position.

In May of 1974 appellant sought appointment to any teaching vacancy in the secondary tenure area pursuant to the provisions of subdivision 3 of section 2510. Thereafter the board hired three new teachers with less seniority than appellant for the school year beginning September, 1974, but denied appellant reinstatement. The new teachers were employed in positions in the secondary tenure area to teach English and science, in which they were certified but appellant was not.

Appellant thereupon appealed to the Commissioner of Education under section 310. of the Education Law. The commissioner, aware of the interpretation which had been placed by the courts on subdivision 2 of section 2510, nonetheless, at least in part because of the difference in diction, held that the right of reinstatement under subdivision 3 "is limited to a position which is 'corresponding or similar’ to the one previously held by the individual. As a result, boards of education are required to reinstate individuals only to positions for which they are qualified (certified)”, not to positions in the individual’s tenure area generally. Accordingly the commissioner upheld the Salmon River Board of Education and dismissed the appeal.

Appellant thereupon instituted the present article 78 proceeding to review the commissioner’s determination. Supreme Court upheld the commissioner, the Appellate Division unanimously affirmed, and we now state our agreement with the dispositions below.

At the outset we observe that since 1976 the standard for review of determinations of the Commissioner of Education is the customary test in article 78 proceedings (§ 310, as amd by L 1976, ch 857). Accordingly the inquiry on this appeal is whether the commissioner’s determination supporting the board of education and dismissing appellant’s appeal was arbitrary and capricious, i.e., whether there was no rational basis for his decision (CPLR 7803, subd 3).

While arguments may be made that subdivisions 2 and 3 of section 2510 should be given parallel interpretation and application, there are differences, as the commissioner noted, in terminology—thus subdivision 2: "seniority in the system within the tenure of the position abolished”, and subdivision 3: "office or position similar to the one which such person filled”. As noted at the Appellate Division the words "corresponding or similar positions” have consistently been interpreted by the commissioner and the courts to restrict the right of reinstatement to new positions the duties of which are similar to those performed by the individual in his previous position. There can be said to be differences, too, between the role of recall rights under subdivision 3 and that of rights on position abolition under subdivision 2.

We recognize that what appears to be an incongruity in interpretation and application between subdivisions 2 and 3 may work some unevenness in individual cases. A premium may be placed on the promptness of the teacher to assert her rights on abolition of her position, and, as to staff reductions which have already occurred, advantage may attach to alertness in having anticipated the course of determinations of the commissioner and decisions of the courts. Time and experience may be expected to produce uniformity in practice. Perhaps even more to the point, the result in this case underscores the invitation stated elsewhere to legislative review of the applicable sections of the Education Law (Matter of Amos v Board of Educ., 43 NY2d 706, decided herewith).

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

Cooke, J. (dissenting).

The determination of the Commissioner of Education in this matter is arbitrary and capricious and should be annulled. Under the circumstances presented, there is simply no logical basis for the distinction made by the commissioner between subdivisions 2 and 3 of section 2510 of the Education Law. More significantly, the majority’s acceptance of this distinction ignores the underlying rationale of prior decisions of this court and changes course in its approach to what steps may be taken with respect to tenured teachers by financially troubled school boards. Disagreement and dissent are therefore registered.

Contrary to the commissioner’s position, the only rational interpretation of subdivisions 2 and 3 is that, with respect to a tenured teacher such as petitioner, the same degree of protection is afforded regardless of whether such teacher is seeking on the one hand to avoid dismissal or on the other hand to obtain reinstatement. Except as to subjects not involved herein, the requirement under subdivision 3 of section 2510 that a vacancy be filled by one formerly holding a "similar” position must be considered satisfied when a teacher tenured in the grade level area of secondary education seeks reinstatement to a vacancy occurring in a secondary education position. This is because tenure is not granted on the basis of subjects taught, except in certain specialized subjects such as art and music, but is merely descriptive of grade level, e.g., secondary education (see Matter of Baer v Nyquist, 34 NY2d 291). Hence, since petitioner is tenured in secondary education, there is no rational ground for concluding that her position was not similar to those positions for which a vacancy had occurred.

Apart from the principle expressed in Matter of Baer v Nyquist (supra), the commissioner concedes that in determining the right to reinstatement a liberal interpretation has been given to the term "similar” in order to safeguard the tenure rights of incumbents in abolished positions (Matter of Ward, 13 Ed Dept Rep 273, 275; see, also, Matter of Englert, 12 Ed Dept Rep 234, 235). The commissioner, however, explains that this interpretation does not permit a board of education to employ an individual in a position for which he is not certified. But this explanation ignores the facts of this case and allows a board of education to make use of certification requirements in a manner condemned by this court in prior decisions.

This is not a situation where a tenured teacher lacked any certification (see Matter of Meliti v Nyquist, 41 NY2d 183). In this matter, the record indicates that petitioner is certified to teach social studies as well as French. Despite its awareness of petitioner’s certification in another subject, the board of education made no suggestion that it would attempt to adjust the schedule to find a position for which she was certified rather than hiring teachers with less seniority. Instead, the board treated petitioner as if she were tenured in the narrow area of French rather than in the broader area of secondary education. The board in this sense was violating the principle that certification requirements may not be employed to erode the protections afforded tenured teachers (see Matter of Lynch v Nyquist, 41 AD2d 363, 365, affd 34 NY2d 588). Indeed, what occurred here is suggestive of the vertical tenure manipulations warned against in Matter of Baer v Nyquist (34 NY2d 291, 297-298, supra).

Even if one were to ignore the underlying rationale of the Baer and Lynch cases, there is a more fundamental reason for concluding that the commissioner erred in this matter. As a practical matter, it begs the question to resolve the right to reinstatement on the basis of whether a vacancy occurs in a "similar” position if similarity is determined on the basis of certification. The lack of a similar position may result from the fact that a board of education has the opportunity, through scheduling of subjects and teachers, to make sure that a vacancy does not occur in the area of certification of a tenured teacher whose position was recently abolished. In times of financial difficulties a board of education might quite naturally desire to fill vacancies with lower salaried teachers and thus there is an incentive to schedule in such a way that no vacancies occur which can be filled by higher salaried tenured teachers seeking reinstatement.

With respect to tenured teachers who might otherwise be dismissed, a board of education may be required where possible to adjust the schedule so that such teachers may retain their positions (see Matter of Steele v Board of Educ., 53 AD2d 674, affd 42 NY2d 840). There is no justification for not requiring, in the same manner, that schedules be rearranged to accommodate a teacher seeking reinstatement under subdivision 3 of section 2510. Moreover, the fact that a teacher such as petitioner did not assert any rights she may have had under subdivision 2 of section 2510 should not hurt her cause, since "[t]he tenure statutes are intended to protect the teacher and not become a trap to those not guileful enough to avoid it” (Matter of Baer v Nyquist, 34 NY2d 291, 299, supra). Hence, in the instant matter, the board of education should be required to attempt to adjust the teaching schedule to allow petitioner to teach in an area in which she is certified and only if this is impossible should it be allowed to hire those with less seniority (see Matter of Amos v Board of Educ., 54 AD2d 297, affd 43 NY2d 706.).

The majority concedes that "arguments may be made” for giving parallel interpretations to subdivisions 2 and 3 of section 2510 of the Education Law (see p 52) and recognizes that the commissioner’s interpretation "may work some unevenness in individual cases” (p 53). This manifests the arbitrariness of the commissioner’s interpretation and the need for judicial intervention. Accordingly, the order of the Appellate Division should be reversed, the determination of respondent commissioner annulled, and the matter remitted for a determination of whether it is possible to adjust the teaching schedule to allow petitioner to teach in an area in which she is certified.

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

Order affirmed.

       Subdivisions 2 and 3 of section 2510 provide as follows:
      "2. Whenever a hoard of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.
      "3. If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled. The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within four years from the date of abolition or consolidation of such office or position.”