text:
    In the Matter of the Power Authority of the State of New York, Respondent, v New York State Department of Environmental Conservation, Appellant, and Catskill Center for Conservation and Development, Inc., et al., Intervenors-Appellants.
    Argued February 15, 1983;
    decided March 30, 1983

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Lawrence A. Rappoport, Peter H. Schiff and James A. Sevinsky of counsel), for appellant.
    I. Issuance of declaratory rulings that explain an administrative agency’s jurisdiction under the statute (or statutes) it administers is an administrative function and may be done upon a state of facts in which some facts are hypothetical, assumed or unadjudicated. (Matter of Miracle Mile Assoc. v Department of Environmental Conservation of State of N. Y., 98 Misc 2d 519, 73 AD2d 807; Matter of City of New York v State of New York Comm. on Cable Tel., 47 NY2d 89; National Automatic Laundry & Cleaning Council v Shultz, 443 F2d 689; Matter of Flacke v Freshwater Wetlands Appeals Bd. of State of N. Y., 53 NY2d 537; Dairy Barn Stores v State Liq. Auth., 67 AD2d 692.) II. Issuance of the declaratory ruling at issue herein did not violate the memorandum of understanding between the State Power Authority and the Department of Environmental Conservation. (Matter of de Rham v Diamond, 32 NY2d 34.)

      Robert C. Stover for intervenors-appellants.
    I. The court below erred in holding that the Department of Environmental Conservation exceeded its jurisdiction in issuing the declaratory ruling challenged herein. II. This appeal should not be dismissed on the ground of mootness. (Matter of Gold v Lomenzo, 29 NY2d 468; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Jones v Berman, 37 NY2d 42; Le Drugstore Etats Unis v New York State Bd. of Pharmacy, 33 NY2d 298; East Meadow Community Concerts Assn. v Board of Educ., 18 NY2d 129; Matter of Rosenbluth v Finkelstein, 300 NY 402.) III. Issuance of the challenged declaratory ruling did not violate the memorandum of understanding between the Department of Environmental Conservation and the State Power Authority.

      Charles M. Pratt, Stephen L. Baum, Peter A. Giuntini and James P. Rigano for respondent.
    I. Issuance of the declaratory ruling by the Department of Environmental Conservation was improper. II. The Department of Environmental Conservation does not have authority to issue a declaratory ruling on the applicability of section 401 of the Clean Water Act. III. The question raised in this appeal is moot since the rights of the parties cannot be affected by a determination in this proceeding. (Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Storar, 52 NY2d 363.) IV. If the Court of Appeals concludes that the Appellate Division’s rationale for annulling the declaratory ruling is incorrect, this appeal should be remitted to the Appellate Division, Third Department, for further consideration.
   OPINION OF THE COURT

Meyer, J.

Under section 204 of the State Administrative Procedure Act the Department of Environmental Conservation (DEC) had authority to issue a declaratory ruling concerning whether the Prattsville Pumped Storage Project (Project) requires certification under section 401 of the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977 (US Code, tit 33, § 1341), or a State Pollutant Discharge Elimination System (SPDES) permit under ECL 17-0803, even though the facts upon which DEC was requested to rule were not established by evidence or conceded by other interested parties who received notice of the request for a ruling. Moreover, its doing so at the request of a petitioner other than the Power Authority of the State of New York (PASNY) was not precluded by a memorandum agreement between PASNY and DEC pursuant to which PASNY withdrew its application to DEC for section 401 certification pending hearings to be held by the Federal Emergency Regulatory Commission (FERC) on PASNY’s application to it for a Federal license to construct the Project. The order of the Appellate Division should, therefore, be reversed and the matter remitted to it for further proceedings.

I

The Project as proposed by PASNY would cause water to be pumped from the Schoharie Reservoir to a newly constructed reservoir at a higher elevation. By releasing water from the upper reservoir at times of peak demand for electricity and passing it through turbines, PASNY would generate needed additional power. After passing through the turbines the water would be returned via a tailrace to the Schoharie Reservoir. Water from Schoharie flows through the Shandaken Tunnel into Esopus Creek. The Project has aroused concern about its effect upon the environment and economy of the Catskill region, including whether the water quality of Schoharie Reservoir and Esopus Creek and the fisheries of the area would be adversely affected by increased turbidity and temperature resulting from it.

On May 26, 1977, PASNY applied for a Federal license for the project. Under section 401 of the Clean Water Act a license may not issue if the proposed facility would result in a “discharge into the navigable waters” unless the State in which the discharge originates certifies (or waives certification) that the facility will comply with sections 301, 302, 303, 306 and 307 of the Clean Water Act (US Code, tit 33, §§ 1311, 1312, 1313, 1316, 1317). On May 27, 1977, PASNY applied to DEC for section 401 certification.

The certification request was, however, withdrawn by PASNY after the execution by PASNY and DEC on May 22, 1978 of a memorandum of understanding reciting the desirability that DEC’s consideration of it be subsequent to FERC hearings on PASNY’s Federal application “so that the Authority, the DEC and interested members of the public, including interveners in the FERC proceeding on the Authority’s application, may avoid unnecessary duplication of effort, expense and inconvenience”.

In April, 1980, the Catskill Center for Conservation and Development, Inc., and three other groups which had intervened in the FERC licensing proceeding (Catskill Center) petitioned DEC for a declaratory ruling. The petition, which posed seven questions, in essence sought declaratory rulings (1) that the Project would entail a “discharge into the navigable waters” governed by the Clean Water Act, (2) that it would entail a discharge of “pollutants” governed by ECL title 8, requiring a SPDES permit pursuant to ECL 17-0803, and (3) that neither the section 401 certification nor the SPDES permit would be issued if the DEC criteria pertaining to water quality (6 NYCRR part 701) or thermal discharges (6 NYCRR part 704) would be violated by the effects of the Project upon the Schoharie Reservoir or Esopus Creek.

The Catskill Center’s petition stated that a declaratory ruling was required because the questions were unsettled, answers to them were necessary in order to prepare for the FERC proceeding, and a declaratory ruling would permit an expeditious challenge to an adverse ruling and thus prevent costly delay in commencement of the Project. In response PASNY filed extensive comments, arguing that no declaratory ruling should issue in view of the pendency of the FERC proceeding and the section 401 application.

DEC issued a declaratory ruling, which assumed that the facts stated in the petition were accurate and declared that the Project would require both a section 401 certification and an SPDES permit and that satisfaction of the water quality and thermal discharge criteria in 6 NYCRR parts 701 and 704 was required. It noted, however, that under 6 NYCRR 704.4 modification of the applicable criteria was possible.

PASNY then instituted the instant article 78 proceeding to annul DEC’s declaratory ruling. Special Term dismissed the petition, finding that the declaratory ruling was not irrational, unreasonable, or arbitrary and capricious. The Appellate Division, Third Department, however, reversed that judgment and annulled the ruling. It held that under section 204 of the State Administrative Procedure Act and 6 NYCRR part 619 the DEC is empowered to issue declaratory rulings “only if they are based upon the actual facts, established or conceded, of a genuine question, dispute or controversy” (86 AD2d 57, 60). Consequently, it held, DEC had abused its discretion and exceeded its jurisdiction and power by basing its declaratory ruling upon assumed facts. Additionally, it held that by issuing the declaratory ruling DEC violated its memorandum of agreement with PASNY.

On April 9, 1982, the day after the Appellate Division reversed as to the declaratory ruling, DEC denied section 401 certification and an SPDES permit. Noting the Appellate Division’s ruling, DEC stated that the absence of established facts was no longer a problem, FERC and DEC hearings which established the facts having been held after the DEC declaratory ruling. That denial is the subject of a separate article 78 proceeding instituted by PASNY.

Catskill Center appealed as of right the Appellate Division’s order annulling the declaratory ruling. In view of DEC’s April 9, 1982 denial of certification, PASNY moved to dismiss the appeal on the grounds of mootness. We denied that motion (57 NY2d 806; see Matter of Lutwin v Alleyne, 58 NY2d 889; People v Fuller, 57 NY2d 152,156, n 2). On the merits PASNY argues DEC is without authority to issue a declaratory ruling on assumed facts and specifically without authority to issue a ruling concerning section 401 certification because section 401 is a Federal statute not enforceable by DEC. It argues also that absent its agreement to the assumed facts the issuance of a declaratory ruling on facts assumed by DEC and Catskill Center but not by it violates its right to due process. Neither of the latter two arguments was made below, however. We, therefore, consider only (1) whether the ruling was authorized under section 204 of the State Administrative Procedure Act and the implementing DEC regulations and (2) whether DEC’s exercise of its power under section 204 was foreclosed by the memorandum of understanding or was an abuse of discretion because based on assumed facts. We now reverse.

II

Neither the statute nor the regulations proscribe issuance of a declaratory ruling on the basis of assumed facts. Section 204 provides in pertinent part: “On petition of any person, any agency may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it. Each agency shall prescribe by rule the form for such petitions and the procedure for their submission, consideration and disposition. A declaratory ruling shall be binding upon the agency unless it is altered or set aside by a court. The agency may not retroactively change a valid declaratory ruling, but nothing in this section shall prevent an agency from prospectively changing any declaratory ruling.” Notably absent from that language is any limitation to agreed or proved facts or “genuine” questions, disputes or controversies. In this respect the section differs markedly from CPLR 3001, pertaining to declaratory judgments, which requires “a justiciable controversy.” Under section 204, the only limitations upon the authority of an agency to issue a declaratory ruling are the discretion of the agency to withhold a ruling, the power of the agency to regulate the procedure governing petitions seeking a ruling, the power of a court to alter a ruling or set it aside, and the power of the agency to change the ruling prospectively. Within these limitations, the statute permits rulings on any state of facts described by a petition. Because there is no requirement that the agency determine the accuracy of the facts as stated in the petition, it follows that an agency may in the exercise of its discretion issue a declaratory ruling based upon an assumed state of facts (cf. City of Des Moines v Public Employment Relations Bd., 275 NW2d 753 [Iowa]). As with any factually based ruling, however, the binding effect of the ruling will be limited by its assumed fact predicate.

The regulations as to declaratory rulings issued by DEC (6 NYCRR part 619) do not limit its authority to issue such rulings either. Subdivision (a) of section 619.1 of the regulation simply restates the first sentence of section 204 of the State Administrative Procedure Act, and while subdivision (b) requires “a full and carefully detailed description of all relevant facts and circumstances” and indicates that if the petition does not contain sufficient data on which to base a declaratory ruling DEC will ask for more, neither provision in any way precludes a ruling based upon assumed facts. Indeed, the absence of any provision in the regulations for fact finding and the requirement of section 619.2 that the requested ruling be issued within 30 days of DEC’s receipt of the completed petition clearly indicate the expectation that a declaratory ruling will be based on the facts developed by the petition and comments and set forth in the ruling as its assumed basis.

III

Nor can it be said that the ruling issued by DEC violated the memorandum of understanding between PASNY and DEC or because based on assumed facts involved an abuse of discretion. That PASNY and DEC deemed it desirable that PASNY’s section 401 certification application be considered after the FERC hearings had been held could not deprive Catskill Center of the right to request a declaratory ruling accorded it by section 204 of the State Administrative Procedure Act, particularly since the center’s petition was not addressed to the merits of the section 401 application. And it was well within the discretion of DEC to issue the ruling on the assumed facts presented. The answers to the questions posed by the center’s request — which sought construction of unclear terms, such as “discharge”, “thermal discharge”, “navigable waters”, “pollutant”, as applied to the discharge of warm water from the upper reservoir into the cool water of the Schoharie Reservoir and of water from the Shandaken Tunnel into Esopus Creek — were involved in both the FERC proceedings and the section 401 application and, therefore, were important in relation to the center’s preparation for the proceedings to follow.

Because the Appellate Division held that the DEC did not have jurisdiction to rule upon assumed facts, it did not reach the merits as to DEC’s declaratory ruling on the facts and in relation to the statutes involved. The matter should, therefore, be remitted to the Appellate Division for its consideration of the merits and of the effect of DEC’s April 9, 1982 ruling on the issues presented.

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

Chief Judge Cooke and Judges Jasen, Jones, Fuchs-berg and Simons concur; Judge Wachtler taking no part.

Order reversed, etc.


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    In the Matter of District Attorney of Suffolk County, Appellant.
    Argued February 15, 1983;
    decided March 31, 1983

      POINTS OF COUNSEL

      Patrick Henry, District Attorney (James J. O’Rourke and Mark D. Cohen of counsel), for appellant pro se.

    The County Court’s May 20, 1981 order which permitted the District Attorney to utilize certain Grand Jury minutes in connection with a civil suit brought pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO) (US Code, tit 18, § 1961 et seq.) was in all respects a proper exercise of the court’s discretion. (Penn-Ohio Steel Corp. v Allis-Chalmers Mfg. Co., 50 Misc 2d 860, 28 AD2d 659, 21 NY2d 916; Matter of Corporation Counsel of City of Buffalo [Cosgrove], 61 AD2d 32; Robert Hawthorne, Inc. v Director of Internal Revenue, 406 F Supp 1098; Matter of Aswad v Hynes, 80 AD2d 382; People v Werfel, 82 Misc 2d 1029; People v Behan, 37 Misc 2d 911; Matter of Attorney-General of U. S. [National Tit. & Guar. Co.], 160 Misc 533; Matter of Epstein, 37 AD2d 333; Matter of Scro, 200 Misc 688; Matter of Miami Fed. Grand Jury No. 79-8, 478 F Supp 490.)

      Paul F. Corcoran, Robert W. Corcoran, Gerald L. Shargel and Emanuel Sfaelos for certain respondents.
    I. The court below properly found respondents to have standing to challenge the disclosure order based upon their status as unindicted subjects of the Grand Jury proceeding. (People v Di Napoli, 27 NY2d 229; Douglas Oil Co. v Petrol Stops Northwest, 441 US 211; United States v Proctor & Gamble, 356 US 677; United States v Rose, 215 F2d 617; Matter of Hynes v Karassik, 47 NY2d 659; Matter of Attorney-General of State of N.Y., 101 Misc 2d 36; Matter of City of Buffalo [Cosgrove], 57 AD2d 47; Matter of Carey [Fischer], 68 AD2d 220; Matter of Corporation Counsel of City of Buffalo [Cosgrove], 61 AD2d 32.) II. The court below applied well-established standards in vacating the Grand Jury disclosure order. The District Attorney’s disclosure application failed to provide the issuing court with a basis to conclude that public interest in disclosure outweighed public interest in Grand Jury secrecy. (People v Di Napoli, 27 NY2d 229; Matter of Carey [Fischer], 68 AD2d 220; Matter of Goldberg v Extraordinary Special Grand Juries of Onondaga County, 69 AD2d 1; Matter of Zinna [Rensselaer County Grand Jury], 63 AD2d 800; Matter of Corporation Counsel of City of Buffalo [Cosgrove], 61 AD2d 32; Matter of City of Buffalo [Cosgrove], 57 AD2d 47; Matter of Kinsella v Andreoli, 95 Misc 2d 915; Matter of Hynes v Karassik, 47 NY2d 659; Matter of Grand Jury Investigation of Cuisi

      narts, Inc., 665 F2d 24; United States v Sobotka, 623 F2d 764.) III. Public policy should preclude the District Attorney from using the fruits of an unsuccessful Grand Jury investigation to prosecute charges in a civil suit.

      Norman S. Ostrow, Paul R. Grand, Diana Parker, Lawrence S. Bader and William A. Zeck for certain respondents.
    I. The court below was correct in finding that the order disclosing Grand Jury evidence was an abuse of discretion. (Matter of Aswad v Hynes, 80 AD2d 382; People v Di Napoli, 27 NY2d 229; Matter of Corporation Counsel of City of Buffalo [Cosgrove], 61 AD2d 32; Matter of Kinsella v Andreoli, 95 Misc 2d 915; People v Werfel, 82 Misc 2d 1029; Douglas Oil Co. v Petrol Stops Northwest, 441 US 211; Matter of Grand Jury Matter, 682 F2d 61; Matter of Carey [Fischer], 68 AD2d 220; Hardwick v Brinson, 523 F2d 798.) II. Appellant’s arguments that this case is moot and that respondents lack standing are frivolous. (Matter of Grand Jury Investigation No. 78-184, 642 F2d 1184; Matter of Fritz v Huntington Hosp., 39 NY2d 339; People v Di Napoli, 27 NY2d 229.)

      Thomas B. Treacy, Norman Alvy and George F. Mackey for certain respondents.
    Certain respondents have standing to protest unlawful dissemination and use of Grand Jury transcripts and materials. (Penn-Ohio Steel Corp. v Allis-Chalmers Mfg. Co., 50 Misc 2d 860, 28 AD2d 659, 21 NY2d 916; People v Di Napoli, 27 NY2d 229; Matter of Scotti, 53 AD2d 282; People v Doe, 103 Misc 2d 524, 84 AD2d 518; Matter of Fritz v Huntington Hosp., 39 NY2d 339; Matter of City of Buffalo [Cosgrove], 57 AD2d 47; Matter of Carey [Fischer], 68 AD2d 220; Matter of Scro, 200 Misc 688; Matter of Hynes v Karassik, 47 NY2d 659; Matter of Attorney-General of State of N. Y., 101 Misc 2d 36.)
   OPINION OF THE COURT

Fuchsberg, J.

At issue is the appropriateness of the exercise of a court’s discretion to allow the appellant, the District Attorney of Suffolk County, to utilize Grand Jury minutes in aid of a civil suit his county’s legislature authorized. The discretion was exercised under the umbrella of CPL 190.25 (subd 4), which, while articulating the secrecy which is to govern Grand Jury proceedings, does permit disclosure “upon written order of the court”.

The minutes are those of Suffolk County’s February 1980 Grand Jury III. It was one of several successive and overlapping Grand Juries impaneled to investigate possible fraud and political corruption in the ongoing construction of the county’s Southwest Sewer District No. 3, a major public work.

The respondents include businessmen and political figures who, along with certain construction and engineering firms, played significant roles in the planning and execution of the project. Three individual respondents testified before Grand Jury III. Others, though subpoenaed, were excused after refusing to waive immunity. Still others supplied records to one or more of the Grand Juries. Unquestioned is it that all were subjects of the inquiry conducted by Grand Jury III. Most pertinent to this case, though, as authorized by CPL 190.85, that body issued a critical report deploring relationships between public officials and private interests, and though the three respondents who testified were indicted for perjury because of the nature of their testimony, in the end no substantive indictments on the subject matter of the inquiry were returned.

Against this background, on January 27, 1981 Suffolk’s County Legislature, at the District Attorney’s urgent request that it do so posthaste, adopted emergency legislation authorizing him to commence a civil suit against the respondents for damages allegedly resulting from the conduct explored within the confines of the Grand Jury. Lodged that very day in the United States District Court for the Eastern District of New York, its legal theory was premised on the so-called “RICO” statute (Racketeer Influenced and Corrupt Organizations Act, US Code, tit 18, § 1961 et seq.).

Also before the day was out, the District Attorney secured an ex parte order granting him blanket approval to employ the Grand Jury III minutes in the contemplated civil litigation. Supporting this application in essence was no more than his assistant’s conclusorily worded statement that the “transcripts are required and necessary in the interests of justice” to take “the profit out of kickbacks and payoffs and bribery”. No attempt was made to describe, much less to detail, any of the conduct so labeled or to isolate the pertinent portions of the transcripts “required”. This nonspecificity was matched by the order which, issued by a Suffolk County Court Judge, broadly and unqualifiedly provided that “the District Attorney of Suffolk County, his appointed staff, special counsel, experts and consultants be authorized and permitted to utilize, the Grand Jury transcripts * * * in the * * * civil proceeding”.

When, in due course, the respondents moved to vacate this order, the issuing Judge, taking cognizance of the District Attorney’s challenge to the movants’ standing, refused to recognize that any one other than those who actually had testified before Grand Jury III had a right to attack the order. He thereupon modified his earlier ruling so as to stay disclosure pending the outcome of the perjury trials. On review, the Appellate Division, in its turn, ruled that all the respondents, so long as they were targets of, or witnesses at, the inquiry, had standing. Thus reaching the merits, it went on to find that the District Attorney had failed to make a sufficient showing to warrant lifting the veil of secrecy.

On his appeal to this court, the District Attorney, by way of threshold argument, repeats his contention that the respondents lacked standing to challenge the County Court’s order. To this he adds that, in any event, because parts of the minutes had been revealed in the course of intervening litigation, the matter is now moot. Substantively, he also insists that the Appellate Division applied erroneous standards in its evaluation of the application. Ignored in the process, he complains, was what he terms prosecutorial “intra-office disclosure rights” and the fact that the civil case in which the District Attorney here was planning to exploit the minutes was one brought on behalf of a public agency. For the reasons which follow, in our view all of these points are without merit.

Treating at the outset with the question of standing, the contemporary rule is that a party has standing to enforce a statutory right if its abuse will cause him injury and it may fall within the “zone of interest” protected by the legislation (Fritz v Huntington Hosp., 39 NY2d 339, 346). As we have had occasion to observe in recent years, “[ojnly where there is a clear legislative intent negating review * * * or lack of injury in fact * * * will standing be denied” (Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 11).

In the present case, it is not open to question that one of the goals advanced by the time-honored Grand Jury secrecy principle is the “protection of an innocent accused from unfounded accusations if in fact no indictment is returned” (People v Di Napoli, 27 NY2d 229, 235). The implementation of this principle renders it essential that one threatened with stigmatization by unwarranted disclosure be accorded an opportunity to enforce the confidentiality it is designed to secure (see Douglas Oil Co. v Petrol Stops Northwest, 441 US 211, 218, n 8; cf. Matter of Hynes v Karassik, 47 NY2d 659).

These considerations in mind, it is at once clear that the rule of secrecy applies equally to either one who gives evidence or to one concerning whom evidence is given. Since all the respondents, as targets, were at least in the second category, the three who did not testify because they would not waive immunity -do not lack standing on this account. Nor, the scope of the rule not being limited to a witness’ own testimony, did those whose testimony allegedly was perjurious or, for that matter, has since been so found, thereby forfeit what otherwise was their legitimate interest in maintaining the confidentiality of any other accusations leveled against them.

Equally unpersuasive is appellant’s suggestion that, because some Grand Jury testimony entered the public domain some time after the original disclosure order was issued, the appeal has become moot. The short answer, without more, is that, while we may not be able to restore such secrecy as has been lost, we can curb any further disclosure of unpublished parts or further dissemination of those already circulated. The availability of this remedy forecloses dismissal for mootness (Gilpin v Mutual Life Ins. Co. of N. Y., 299 NY 253, 261-262; see 10 Carmody-Wait 2d, NY Prac, § 70:298).

Turning then to the substantive side of the case, we begin by noting that secrecy has been an integral feature of Grand Jury proceedings since well before the founding of our Nation (Pittsburgh Plate Glass Co. v United States, 360 US 395, 399; see Calkins, Grand Jury Secrecy, 63 Mich L Rev 455; Comment, Secrecy in Grand Jury Proceedings, 38 Ford L Rev 307). The reasons it has survived go beyond our afore-mentioned concern that the reputations of those investigated by or appearing before a Grand Jury be protected from unfounded accusations. Thus, in more recent times, we have observed that confidentiality also serves the important objectives of ensuring the independence of Grand Juries, preventing the flight of the accused and encouraging free disclosure of information by those summoned before it (People v Di Napoli, supra, at p 235).

Nevertheless, the rule of secrecy is not absolute and, in the discretion of the trial court, disclosure may be directed when, after a balancing of a public interest in disclosure against the one favoring secrecy, the former outweighs the latter (People v Di Napoli, supra). But since disclosure is “the exception rather than the rule”, one seeking disclosure first must demonstrate a compelling and particularized need for access (Pitler, NY Crim Prac under the GPL, § 5.7, p 236). However, just any demonstration will not suffice. For it and the countervailing policy ground it reflects must be strong enough to overcome the presumption of confidentiality. In short, without the initial showing of a compelling and particularized need, the question of discretion need not be reached, for then there simply would be no policies to balance.

Without contesting the validity of this rule, the District Attorney nonetheless counters with the contention that it is applicable only when private, rather than public, litigants seek Grand Jury materials. But the cases brook no such distinction. This was well illustrated when the City of Buffalo sought access to minutes of a Grand Jury investigation into a “no-show” job scandal involving municipal employees (Matter of City of Buffalo [Cosgrove], 57 AD2d 47). The occasion was the proposed pursuit of civil litigation to recoup improperly disbursed public funds. Despite the public interest at stake, absent a showing “that sources other than the Grand Jury minutes are inadequate to provide the information which the city seeks”, Grand Jury secrecy was held paramount (id., at p 51; accord Matter of Carey [Fischer], 68 AD2d 220; Matter of Corporation Counsel of City of Buffalo [Cosgrove], 61 AD2d 32).

Off center too is the District Attorney’s further theory that a standard of mere “relevance” should be applicable to what the District Attorney urges us to regard as a mere “intra-office transfer of Grand Jury minutes for civil purposes within a prosecutor’s office”. In reaching for such a rule, he looks to subdivision (e) of rule 6 of the Federal Rules of Criminal Procedure (in US Code, tit 18, Appendix), which permits liberal transfer of such material among “attorney[s] for the government”. A fundamental difficulty with this approach, however, is that New York has no comparable statutory scheme (Matter of Heisler v Hynes, 42 NY2d 250, 254). To add to its inaptness as authority, the majority of the Federal circuits which have considered the issue apply the rule only when criminal matters are involved. In civil litigation, these courts hold governmental entities to the compelling and particularized need standard. (Compare Matter of Grand Jury Investigation No. 78-184, 642 F2d 1184, 1190, cert granted sub nom. United States v Sells Eng., 456 US 960; Matter of Grand Jury Investigation of Cuisinarts, Inc., 665 F2d 24; Matter of State of Illinois, 659 F2d 800, cert granted sub nom. Illinois v Abbott Assoc., 455 US 1015, with Matter of Grand Jury Subpoenas, 581 F2d 1103, 1110.)

Indeed, as was candidly conceded on oral argument, the circumstance that a District Attorney, in discharging his criminal justice enforcement responsibilities, has a special relation to a Grand Jury (see People v Di Falco, 44 NY2d 482, 486-487) is irrelevant. So his designation to represent the county in the prosecution of its RICO claims accorded him no greater rights than would accrue to any other attorneys retained by the county for this purpose.

Measured then by the compelling and particularized standard we restate today, the District Attorney’s presentation to the County Court must be found wanting. True, a public interest is to be found in the county’s efforts to recover civil damages from those who allegedly defrauded its taxpayers. But, absent was anything to indicate that the Grand Jury minutes were essential to the pursuit of this interest.

Specifically, for instance, nothing was offered to explain why the liberal discovery devices available under the Federal Rules of Civil Procedure would not suffice (cf. Matter of Zinna [Rensselaer County Grand Jury], 63 AD2d 800, 801). Since information so gathered might obviate the need to compromise Grand Jury confidentiality, this was not an insignificant deficiency.

And, concomitantly, there was a shortfall too in identifying what made it impossible for the District Attorney to establish his case without resort to the minutes. Without being provided with such particularization, nisi prius, of course, was hardly in a position to appraise the application intelligently and an appellate court was left with nothing more than the occasion to say so. Perhaps worst of all, the conclusory generalizations to which the application was confined left the court without any rationale by which it could minimize any invasion of secrecy by narrowing it to the essential (cf. Matter of Scotti, 53 AD2d 282, 289). Instead, the court was confronted with a choice between an uninformed wholesale grant or none at all.

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

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

Order affirmed.

      . CPL 190.25 (subd 4) provides: “Grand jury proceedings are secret, and no grand juror, other person [authorized to be present] * * * may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, or * * * other matter attending a grand jury proceeding”.

      . Subsequently, one indictment was dismissed on the People’s motion. The other two were disposed of by guilty pleas, one to the counts charged and one to lesser misdemeanor charges.

      . The local law later was declared an unconstitutional delegation of jurisdiction to the District Attorney (Davis Constr. Corp. v County of Suffolk, 112 Misc 2d 652 [Wager, J.]). Appeal from this determination is still pending in the Appellate Division, Second Department. Thus, neither the circumstances surrounding the passage of the local legislation nor its substance is before us.

      . The RICO suit, which had been in preparation well before its legislative authorization, was in the charge of two of the District Attorney’s assistants, who, following their supervision of the Grand Jury investigation, were sworn in, anticipatorily, as Special Assistant County Attorneys so that, with the aid of at least one outside consultant, they could work up the civil suit. Later, the same assistants were to be cross-designated as Assistant Attorneys-General (while, compensatingly, two Assistant Attorneys-General were designated as Assistant District Attorneys), so the former could represent the State too when it was decided to have it intervene in the RICO case.
      For an extended discussion of the civil use of the RICO statute as such see Comment, Civil RICO: The Temptation and Impropriety of Judicial Restriction (95 Harv L Rev 1101).

      . Appellant advises us that, in the course of another Federal criminal trial, several witnesses repeated the substance of their Grand Jury III testimony, and that, in response to a subpoena duces tecum served during the course of that trial, “certain portions” of the Grand Jury transcripts were supplied to the defendants. While this is all dehors the record and it is therefore not possible for us to accurately gauge the extent of the disclosure, in essence there appears to be no disagreement that not all of the evidence before the Grand Jury was made public.

      . The policy of secrecy continues to be so strong into the present day that unauthorized disclosure is a felony in this State (Penal Law, § 215.70; compare 4 Blackstone’s Commentaries, p 126).


author: Simons, J.

text:
    805 Third Ave. Co., Appellant, v M.W. Realty Associates, Respondent, et al., Defendant.
    Argued February 9, 1983;
    decided March 31, 1983

      POINTS OF COUNSEL

      Richard E. Hershenson and Samuel Kirschenbaum for appellant.
    The complaint fully states a cause of action for economic duress and should not have been dismissed. (Barr v Wackman, 36 NY2d 371; Austin Instrument v Loral Corp., 29 NY2d 124; Rovello v Orofino Realty Co., 40 NY2d 633; Muller Constr. Co. v New York Tel. Co., 40 NY2d 955.)

      Jay A. Kranis, Thomas J. Malmud and Barbara L. Levine for respondent.
    805 failed to state a claim for rescission based upon economic duress and the complaint was properly dismissed. (Muller Constr. Co. v New York Tel. Co., 40 NY2d 955; Metcalf v Metcalf, 274 App Div 744; J.D. & H. Enterprises Corp. v Byrne, 12 Misc 2d 1066; Manno v Mutual Benefit Health & Acc. Assoc., 18 Misc 2d 80; Didier v Macfadden Pub., 299 NY 49; Friar v Vanguard Holding Corp., 78 AD2d 83; Bachorik v Allied Control Co., 34 AD2d 940; Oleet v Pennsylvania Exch. Bank, 285 App Div 411; Herlou Card Shop v Prudential Ins. Co. of Amer., 73 AD2d 562.)
   OPINION OF THE COURT

Simons, J.

In September, 1979 plaintiff, 805 Third Avenue Co., and defendant, M.W. Realty Associates, two limited partnerships, entered into a contract for the sale by defendant of a portion of its air rights to plaintiff. In July, 1980 the parties modified the contract and in May, 1981 plaintiff instituted this action charging defendant with economic duress in compelling execution of the 1980 modification. It seeks to rescind the modified contract, to recover compensatory and punitive damages, and to obtain other related relief. After the action was commenced, plaintiff obtained preliminary injunctive relief from Special Term which maintained the status quo prior to trial. At the same time defendant moved to dismiss the complaint for failure to state a cause of action (CPLR 3211, subd [a], par 7). Special Term denied defendant’s cross motion. On appeal, the Appellate Division modified Special Term’s order by vacating the preliminary injunction and granting the cross motion to dismiss (87 AD2d 544). Plaintiff appeals from that order. It contends that its complaint states a cause of action, that in effect the Appellate Division has held that it must plead performance of conditions precedent in the September contract contrary to CPLR 3015 and that the Appellate Division has improperly dismissed the complaint and granted judgment against it without prior notice (see CPLR 3015; Rovello v Orofino Realty Co., 40 NY2d 633). Defendant contends that the complaint must be judged by considering the terms of the 1979 contract annexed to it and that when that is done plaintiff’s complaint fails as a matter of law. We agree with defendant.

Briefly, it appears from the complaint that plaintiff is the ground lessee of the entire blockfront on Third Avenue between 49th and 50th Streets in New York City except for a two-story building on the northeast corner of 49th Street and Third Avenue which is owned by defendant. Plaintiff desired to construct an office building on the site and in order to increase to 31 stories the lawful floor area permitted under the city’s zoning laws, it agreed to purchase the air rights necessary for the additional stories from defendant for $1,900,000. The details of the purchase were set forth in a contract dated September 18, 1979. By its terms plaintiff agreed to deliver in escrow a cash down payment and a promissory note for the balance of the purchase price which was to be paid over eight years. In turn defendant agreed to deliver in escrow a declaration of zoning lot restrictions and a single lot and easement agreement which would complete the transfer of the air rights. The escrow deposits were to be exchanged on the “Sales Closing Date” set forth in the contract or earlier at plaintiff’s election. After the deliveries to the escrow agents were made, and relying on the agreement, plaintiff obtained from the city a permit authorizing it to commence construction of the building foundation only. It thereafter commenced excavation and construction and let contracts for erection of the superstructure. Plaintiff then alleges in its complaint that in May, 1980 it demanded that defendant deliver the documents “as required” by the contract of September 18,1979; that defendant refused to do so unless plaintiff agreed to a modification of the September contract on terms more favorable to defendant; that defendant’s refusal was “unconscionable” and “oppressive” and was done “maliciously” to apply economic duress to plaintiff because defendant knew that pursuant to the terms of the ground lease any delay in construction would cause serious and irreparable injury to plaintiff and its general partners; that compelled by such wrongful acts of defendant and the economic duress resulting from its wrongful refusal to deliver the documents, plaintiff executed the modified contract of 1980 to its damage and defendant’s benefit.

The theory on which plaintiff seeks recovery permits a complaining party to void a contract and recover damages when it establishes that it was compelled to agree to the contract terms because of a wrongful threat by the other party which precluded the exercise of its free will (Muller Constr. Co. v New York Tel. Co., 40 NY2d 955, 956; Austin Instrument v Loral Corp., 29 NY2d 124, 130; Oleet v Pennsylvania Exch. Bank, 285 App Div 411). The existence of economic duress is demonstrated by proof that one party to a contract has threatened to breach the agreement by withholding performance unless the other party agrees to some further demand (Austin Instrument v Loral Corp., supra). Thus, if all we had before us was plaintiff’s complaint we would reverse and deny defendant’s motion to dismiss, for accepting the allegations of the complaint as true, as we must, it alleges a cause of action upon which plaintiff may recover.

But that is not all there is before us. Plaintiff has annexed to its complaint the contract of September 18, 1979 and by doing so it has made the contract a part of its pleading for all purposes (CPLR 3014; see, also, Wernham v Moore, 77 AD2d 262). Interpretation of the contract is a legal matter for the court (West, Weir & Bartel v Carter Paint Co., 25 NY2d 535, 540; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456, 459), and its provisions establish the rights of the parties and prevail over conclusory allegations of the complaint (see Miglietta v Kennecott Copper Corp., 25 AD2d 57; Metcalfy Metcalf, 274 App Div 744; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3014:9, p 11; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3014.14). Thus, we must determine defendant’s obligation from the contract and if it does not appear from the pleading as a whole that defendant has wrongfully withheld its promised performance, the complaint must be dismissed.

Under the terms of the contract of September, 1979 defendant’s declaration and lot agreement were to be delivered to plaintiff on the “Sales Closing Date”. Plaintiff was entitled to the document, however, only if plaintiff secured delivery to defendant of (a) the cash down payment and promissory note held in escrow, plus interest, (b) a letter of credit securing payment of the balance of the purchase price and (c) the architectural drawings filed with the authorities as proof that the final floor area did not exceed the area defendant agreed to convey.

Plaintiff does not contend, nor has it pleaded, that it did any of these things although the contract expressly provides that defendant’s delivery of the declaration and lot agreement is conditioned on plaintiff doing so. Rather, it contends that the “Sales Closing Date”, the time set for its performance in the contract, had not occurred, that its failure to perform was defensive matter to be pleaded by defendant and that its performance was excused because of defendant’s refusal to perform.

The contract defined the “Sales Closing Date” as “the date of issuance * * * by the Department of Buildings” of “a Building Permit for the Proposed Building.” Date of issuance, insofar as pertinent here, was defined as the earlier of the date on which plaintiff received authorization to begin or on which it actually did begin “excavation or any other construction activity (exclusive of demolition) for the Proposed Building” (emphasis added). Concededly, construction of the foundation started on December 4, 1979. Plaintiff pleads that it had started in its complaint. The dispute between the parties is whether the foundation work was the start of construction of the “Proposed Building” within the terms of the contract. Plaintiff contends that it was not because on December 4, 1979 it had not received final approval for the 31-story office building and therefore the only office building it could legally erect under the zoning ordinances could not exceed six stories. Obviously, plaintiff had no intention of building a six-story building, however; the construction undertaken was for erection of a 31-story building. Lease arrangements had been negotiated with prospective tenants to occupy such a building and construction contracts had been let to build it. As a matter of law, December 4, 1979 was the “Sales Closing Date”, the date that plaintiff began “excavation or any other construction activity * * * for the Proposed Building”, and' that was the date plaintiff was required to perform the preconditions for transfer of the air rights. Since it did not, it has not pleaded an actionable wrong by defendant and it cannot claim its nonperformance is excused or is defensive matter.

In short, the contract does not establish that defendant had an absolute duty to perform, as plaintiff claims. Since plaintiff was not entitled to performance, plaintiff has failed to state a cause of action for economic duress for a party cannot be guilty of economic duress for refusing to do that which it is not legally required to do. Defendant’s cross motion should be granted, therefore, because unlike those cases in which plaintiff’s pleading is sufficient on its face, .though his right to recover may be doubtful (see Rich v Lefkovits, 56 NY2d 276, 281), this action is controlled by the contract annexed to the complaint. There is no dispute about the facts, only a dispute of law concerning the interpretation of that instrument. Having resolved that dispute in defendant’s favor, we must affirm (see O’Hara v Del Bello, 47 NY2d 363, 368; see Guggenheimer v Ginzburg, 43 NY2d 268, 275, supra; Muller Constr. Co. v New York Tel. Co., 40 NY2d 955, supra).

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

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

Order affirmed, with costs.

       Defendant Citibank, N. A., is named as a party only because it issued a letter of credit for the benefit of defendant M.W. Realty Associates. It has not participated in this appeal.


author: Per Curiam.

text:
    In the Matter of Ruth Johnson et al., Appellants, v Barbara Blum, as Commissioner of the New York Department of Social Services, et al., Respondents.
    Argued February 14, 1983;
    decided March 31, 1983

      POINTS OF COUNSEL

      Andrew M. Rothstein and Rene H. Reixach for appellants.
    The courts below erred by failing to award petitioners attorney’s fees under section 1988 of title 42 of the United States Code, which requires awards of attorney’s fees to prevailing section 1983 plaintiffs in the absence of special circumstances which would render such an award unjust. (Matter of Bess v Toia, 66 AD2d 844; New York Gaslight Club v Carey, 447 US 54; Davis v Murphy, 587 F2d 362; Rodriguez v Taylor, 569 F2d 1231, 436 US 913; Matter of Fairly v Fahey, 79 AD2d 35; Carey v Piphus, 435 US 247.)

      Robert Abrams, Attorney-General (Clifford A. Royael and Peter H. Schiff of counsel), for respondents.
    The courts below did not abuse their discretion under section 1988 in denying petitioners an award of attorney’s fees. (Alyeska Pipeline Serv. Co. v Wilderness Soc., 421 US 240; Maine v Thiboutot, 448 US 1; Newman v Piggie Park Enterprises, 390 US 400; Northcross v Memphis Bd. of Educ., 412 US 427; Matter of Jones v Berman, 37 NY2d 42; Matter of Badame v Berger, 55 AD2d 931; New York Public Interest Research Group v Steingut, 40 NY2d 250; Matter of Bess v Toia, 66 AD2d 844; Matter of Young v Toia, 66 AD2d 377; Felder v Foster, 86 AD2d 766.)

      Bernard J. Reilly and Dana H. Freyer for the New York State Bar Association, amicus curiæ.

      A prevailing plaintiff under section 1983 of title 42 of the United States Code should recover attorney’s fees unless special circumstances render such an award unjust. (New York Gaslight Club v Carey, 447 US 54; Gates v Collier, 616 F2d 1268; Davis v Murphy, 587 F2d 362; Christiansburg Garment Co. v EEOC, 434 US 412; Northcross v Memphis Bd. of Educ., 412 US 427; Newman v Piggie Park Enterprises, 390 US 400; Milwe v Cavuoto, 653 F2d 80; Mid-Hudson Legal Servs. v G & U, Inc., 578 F2d 34; Matter of Ashley v Curtis, 67 AD2d 828; Matter of Fairly v Fahey, 79 AD2d 35.)
   OPINION OF THE COURT

Per Curiam.

The issue on this appeal is the appropriate standard to be applied by the court before denying attorney’s fees under section 1988 of title 42 of the United States Code.

Petitioners brought this proceeding to challenge the validity of respondents’ rulings denying public assistance to petitioner’s minor children. The denial was based upon the State Commissioner’s Administrative Directive 80ADM-1 issued January 30, 1980. That directive, issued in response to our decision in Matter of Gunn v Blum (48 NY2d 58), provided that “in the absence of a demonstration of lack of need, financial assistance directed to dependent children may not be discontinued or reduced because their parents refuse to dispose of certain non-essential assets belonging to the parents.” It then went on to provide that it did not apply to applicants. “When an applicant fails to dispose of an available resource * * * the entire family is ineligible for public assistance.” Because of the refusal of petitioner Johnson, and in the case of petitioner Stone, her husband, to dispose of automobiles, respondents denied assistance to their minor children and petitioners commenced this proceeding. Special Term ordered respondents to provide assistance to the minors, declaring that the directive violated the equal protection clauses of the United States and the New York Constitutions because it treated recipients and applicants unequally. The court denied petitioner’s request for attorney’s fees without explanation. The Appellate Division affirmed in a memorandum in which it held that allowance of counsel fees pursuant to the 1976 Civil Rights Attorney’s Fees Awards Act (US Code, tit 42, § 1988), was discretionary (83 AD2d 731).

Section 1983 of title 42 imposes liability on those who under color of law, custom or usage of any State or territory deprive citizens of the United States or other persons of any rights, privileges or immunities secured by the Federal Constitution and laws. Section 1988 was enacted in 1976 and provides in pertinent part: “In any action or proceeding to enforce a provision of section[s] * * * 1983 * * * the court, in its discretion,may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” It is settled that attorney’s fees may be awarded pursuant to section 1988 in a State court proceeding (Maine v Thiboutot, 448 US 1, 11; see, also, New York Gaslight Club v Carey, 447 US 54, 66-70), and manifestly fees may be available where, as here, the court has decided in petitioners’ favor because the challenged act violates their Federal constitutional rights. Although some courts have held, as did the court in this case, that the decision whether to grant an award is entirely discretionary (see Matter of Bess v Toia, 66 AD2d 844), this is incorrect. Under the Newman-Northcross rule, which we follow, the prevailing party ordinarily should recover reasonable fees “unless special circumstances would render such an award unjust” (Newman v Piggie Park Enterprises, 390 US 400, 402; Northcross v Memphis Bd. of Educ., 412 US 427, 428; see, also, New York Gaslight Club v Carey, supra, at p 68). In Northcross, the Supreme Court recognized that in enacting the 1964 Civil Rights Act Congress intended to facilitate access to the judicial process for victims of civil rights violations who might not otherwise be able to afford it because either no money was involved or if financial recovery was available, the sum involved did not warrant the expense of the litigation required to secure their rights. It has also recognized that the imposition of attorney’s fees would help to insure that those who violate the Nation’s fundamental laws could not proceed with impunity (see Carey v Piphus, 435 US 247, 257, n 11). In essence, the Fees Act created a system of “private attorneys general” to vindicate the national policy who could be paid by an award of attorney’s fees for representing a successful party (see Newman v Piggie Park Enterprises, supra; Northcross v Memphis Bd. of Educ., supra). These important remedial policies also motivated section 1988 of the 1976 act, and we should construe it broadly to require that respondents establish the special circumstances which militate against awarding a fee to a successful litigant (Mid-Hudson Legal Servs. v G & U, Inc., 578 F2d 34, 37-38). They do not meet that burden solely by submitting evidence that petitioner’s counsel is a publicly funded legal service organization (see Washington v Seattle School Dist. No. 1, 458 US_, 102 S Ct 3187; New York Gaslight Club v Carey, supra, at pp 70-71; Holley v Lavine, 605 F2d 638, cert den sub nom. Blum v Holley, 446 US 913; Rodriguez v Taylor, 569 F2d 1231, 1245), or that the relief afforded is personal to the petitioner (see Zarcone v Perry, 581 F2d 1039, 1042).

Accordingly, the judgment of Supreme Court insofar as appealed from and the order of the Appellate Division insofar as brought up for review should be reversed and the proceeding remitted to Supreme Court for the determination of counsel fees.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur in Per Curiam opinion.

Judgment, insofar as appealed from, and order of the Appellate Division, insofar as brought up for review, reversed, with costs, and matter remitted to Supreme Court, Chemung County, for further proceedings in accordance with the opinion herein.

       The legislative history of section 1988 of the 1976 Civil Rights Attorney’s Fees Awards Act reveals that Congress was justifiably concerned about the meaning which various State and Federal courts would ascribe to the phrase “in its discretion”. Thus, in a commendable bit of foresight, Congress set forth precisely what it intended, to wit: “It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by I the Fees Act], if successful, ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust’. (Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968)).” (S Rep No. 94-1011, 94th Cong, 2d Sess, p 4 [19761; 1976 US Code Cong & Admin News, p 5912; see, also, HR Report No. 94-1558, 94th Cong, 2d Sess, pp 5, 8 [19761.)

      . Fees may also be awarded even though relief is awarded on State grounds if petitioner seeks relief on both State grounds and Federal grounds. In such cases, Congress intended that fees may still be available under the act: “To the extent a plaintiff joins a claim under one of the federal statutes covered by the Fees Act with a claim that does not allow attorney fees, that plaintiff if it prevails on the non-fee claim, is entitled to a determination on the other claim [if nonconstitutional] for the purpose of awarding attorney fees. In some instances, however, the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the non-constitutional claim is dispositive. In such cases, if the constitutional claim for which fees may be awarded meets the 2-pronged Gibbs test, attorney fees may be allowed even if the court doesn’t decide the constitutional question” (HR No. 1558, 94th Cong, 2d Sess, p 4, n 7). The “Gibbs test” (see Mine Workers v Gibbs, 383 US 715, 725) is the same as the test for pendent jurisdiction. It permits an award of attorney’s fees if (1) the Federal claim has substance sufficient to confer subject matter jurisdiction and (2) the Federal and non-Federal claims “derive from a common nucleus of operative fact.” The test for substantiality is set forth in Hagans v Lavine (415 US 528, 537-538) which held that a Federal court is without jurisdiction only if the claim is “wholly insubstantial”, “obviously frivolous” or “obviously without merit” (see, generally, Wolf, Pendent Jurisdiction, Multi-Claim Litigation and the 1976 Civil Rights Attorney’s Fees Awards Act, 2 Western New England L Rev 193, 234-240).


author:
      Per Curiam.
     Fuchsberg, J.

text:
    Willard W. Cass, Jr., et al., Appellants, v State of New York et al., Respondents. (And Two Other Actions.)
    Argued February 14, 1983;
    decided March 30, 1983

      POINTS OF COUNSEL

      Murray A. Gordon and Richard Imbrogno for appellants.
    I. The act, in perpetuating the disparities in judicial salaries which exist here, violates the New York State and Federal Constitution equal protection clauses. In this respect the instant appeals are governed by Weissman. (Weissman v Evans, 56 NY2d 458; Lindsley v Natural Carbonic Gas Co., 220 US 61; Dandridge v Williams, 397 US 471.) II. The disparity in judicial compensation here complained of violates the constitutionally guaranteed independence of the judiciary. (Matter of McCoy v Mayor of City of N. Y., 73 Misc 2d 508, 41 AD2d 929; People ex rel. Burby v Howland, 155 NY 270; United States v Will, 449 US 200; Benvenga v La Guardia, 182 Misc 507, 268 App Div 566, 294 NY 526; Evans v Gore, 253 US 245; O’Donoghue v United States, 289 US 516; Atkins v United States, 556 F2d 1028, 434 US 1009.) III. The State of New York is a necessary and proper party to these actions and the dismissal of the complaint as against the State was error. (Press v County of Monroe, 50 NY2d 695; Fehlhaber Corp. v State of New York, 69 AD2d 362; Saso v State of New York, 20 Misc 2d 826; St. Paul Fire & Mar. Co. v State of New York, 99 Misc 2d 140; Hallock v State of New York, 39 AD2d 172, 32 NY2d 599; Matter of Martin v Ronan, 47 NY2d 486.)

      Robert Abrams, Attorney-General (William J. Kogan and Peter H. Schiff of counsel), for State of New York and another, respondents.
    I. The salary disparity issue is inappropriate for judicial resolution; in any event, there is no violation of equal protection because there is a rational basis for the unequal pay. (Matter of Tolub v Evans, 58 NY2d 1; Weissman v Evans, 56 NY2d 458; Board of Educ. v Nyquist, 57 NY2d 27; Matter of Evans v Newman, 71 AD2d 240, 49 NY2d 904; Farrington v Pinckney, 1 NY2d 74; Matter of Rosenthal v Hartnett, 36 NY2d 269; Matter of Roosevelt Raceway v County of Nassau, 18 NY2d 30; Cox v Katz, 22 NY2d 903; New York State Assn. of Trial Lawyers v Rockefeller, 267 F Supp 148.) II. Neither the language of New York State Constitution (art VI, § 25) nor the principle of an independent judiciary is violated by the Unified Court Budget Act. (County of Broome v Bates, 197 Misc 88, 302 NY 587.) III. The court below properly dismissed the complaints against the State of New York for lack of subject matter jurisdiction. (Schaffer v Evans, 57 NY2d 992.)

      Paul A. Feigenbaum for Herbert B. Evans, respondent.
    The salary disparities among Judges in the respective Family, County and Surrogate’s Courts do not deprive plaintiffs of their rights to equal protection of the law.
   OPINION OF THE COURT

Per Curiam.

In these three declaratory judgment actions the plaintiffs are County Court Judges, Family Court Judges, and Surrogates who claim that the Unified Court Budget Act (L 1976, ch 966; L 1979, ch 55; L 1980, ch 881) denies them equal protection insofar as it provides higher salaries for Judges of co-ordinate jurisdiction in certain counties in the New York City metropolitan area. The plaintiffs also seek a declaration that they are entitled to retroactive salary increments to compensate them for the discrepancies.

The Supreme Court consolidated the three actions and granted summary judgment for the plaintiffs, against all defendants except the State Comptroller and dismissed the action against him.

The Appellate Division reversed and granted judgment in favor of all the defendants, except the State declaring the statute constitutional. The complaint against the State was dismissed because the Appellate Division found “no persuasive authority * * * to demonstrate that it is a proper defendant in these actions”. (88 AD2d 305, 308.)

The order of the Appellate Division should be modified by reinstating the complaints against the State and otherwise affirmed.

Claims against the State primarily seeking money damages should, of course, be brought in the Court of Claims (Schaffer v Evans, 57 NY2d 992). It is settled, however, that a declaratory judgment action in the Supreme Court is an appropriate vehicle for challenging the constitutionality of a statute (Press v County of Monroe, 50 NY2d 695). In addition, the State is a proper party to such an action because of its obvious interest in and right to be heard on matters concerning the constitutionality of its statutes (CPLR 1012; cf. Weissman v Evans, 56 NY2d 458). Thus the motion to dismiss the complaint against the State for lack of jurisdiction should have been denied.

In all other respects the Appellate Division correctly held that the defendants are entitled to summary judgment for the reasons stated in its opinion. We would simply note that our recent opinion in Matter of Tolub v Evans (58 NY2d 1) provides additional authority for the Appellate Division’s conclusion that the plaintiffs have not been denied equal protection.

In the Tolub case we stated (at p 8) that a State budgetary act “will not be struck as violative of equal protection merely because it creates differences in geographic areas * * * As long as the State had a rational basis for making such a distinction, it will pass constitutional muster under an equal protection challenge”. In the case now before us the relevant classes encompass Judges of three separate courts established and maintained throughout the State. As the Appellate Division indicates, there are State-wide disparities in population, caseload, and cost of living, which provide a rational basis for the Legislature to adopt price differentials for those serving in different areas of the State. The case is clearly distinguishable from Weissman v Evans (supra) involving a limited class composed entirely of Judges of the District Court which exists only in two adjoining counties on Long Island, where differences of this nature were not evident and therefore could not serve to provide a rational justification for a salary differential between the Judges sitting in Nassau County and those sitting in Suffolk County.

In the Tolub case we also observed that when a rational basis exists for the classification enacted by the Legislature, “equal protection does not require that all classifications be made with mathematical precision” (Matter of Tolub v Evans, supra, at p 8). Thus in this case the fact that the general statutory scheme, when applied on a Statewide basis, may produce some inequities for certain Judges within a particular class does not render the statute unconstitutional.

Accordingly, the order of the Appellate Division should be modified, with costs, by reinstating the complaints against the State only for the technical purpose of declaring in favor of the State as well as the other defendants; and otherwise the order should be affirmed.

Fuchsberg, J.

(dissenting). Special Term’s holding that “[t]here is no rational basis for the classifications here under review” (109 Misc 2d 107, 113) is eminently correct.

Far from the Legislature having adopted “price differentials for those serving in different areas of the State” (at p 464), whether on the basis of population, caseload or cost of living, the criteria which occur to the majority, or, for that matter, to any other factors, be these qualifications, experience, length of service or any other acceptable justification for singling out certain members of the same court, these differences were totally disregarded. Rather, the only basis for the patent discrimination to which plaintiffs point is the historical fact that in times gone by it was permissible for each of the 62 counties of the State, all discrete governmental units, to set whatever salary it thought best. And, lest there be any doubt on this score, although the respondent on this appeal, Chief Administrator of the Courts, now urges that we hold that the system adopted by the Legislature be found not to violate the plaintiffs’ equal protection rights, his official report made a point of noting that the differences in compensation with which we deal in this case indeed are due solely to “the former system of court funding by local government” (Report of the Chief Administrator of the Courts to the Governor, the Legislature and the Chief Judge of the Court of Appeals [pursuant to L 1979, ch 55]). Such a ground, standing alone, will not support the disparate treatment here (Weissman v Evans, 56 NY2d 458, 464).

This though the “long-heralded and legislatively indorsed substitution of State for local control of the courts” (56 NY2d, at p 466) ushered in by section 1 of article VI of our State Constitution took this power and obligation away from the counties and placed it in one authority, the State. For court unification, “unimpeded by artificial local boundaries”, was to eliminate “the discordant results which were bound to flow from the discredited funding practice which permitted each county to go its own way” (Weissman v Evans, supra, at p 464).

Nevertheless, irrational disparities, which no nonhistorical theory can explain, continue to abound. For example, bearing in mind that a geographical distinction without rational basis will offend equal protection (Manes v Goldin, 400 F Supp 23, 29, affd 423 US 1068), while the State paid the Onondaga Surrogate $48,000 per annum for managing a caseload of 1,868 probate and accounting petitions in a county which ranked tenth in population, his counterpart in Richmond County, which ranked eleventh, received $10,000 more for managing a load of only 648 petitions. An even more topsy-turvy illustration, say from the County Court, is found in a comparison between the $53,928 paid to the Judge of that court in Broome County, where the load of 445 case filings was the largest in the State, with that of his fellow Judge in more rural Sullivan County (where, though the filings numbered only 112, the County Judge received $58,422) or the salary of their Putnam County colleague (who, though concerned with but 39 filings, was the recipient of $61,792).

Equal protection does not, to be sure, demand absolute uniformity. So a broad classification may be divided into subclasses whose distinctions are not governed by mathematical nicety. By equal logic, a total failure to classify should not validate invidious discrimination within the resulting broad classification. It follows that to treat the salary levels of the County, Family and Surrogate’s Court Judges as though they still are set by 62 separate counties rather than by the unitary State government upon which this responsibility has been imposed is to mock not only the equal protection principle in general, but, as applied to fair compensation, our pretensions of uniformity in particular.

Finally, as to Matter of Tolub v Evans (58 NY2d 1), from which the majority seeks succor, it is enough to note that the salary differential which prevailed among the law assistants there was, as our court took the pains to note (58 NY2d 1, 9-10), then in the process of being equalized during an ongoing transitional period which the Legislature had established to wipe out the inequality. Consequently, whatever the merits of the equal protection claim there, it is not to be equated with the present case, where the inequality has been completely ignored.

It follows that the order of the Appellate Division should be reversed and judgment entered declaring (1) the Unified Court Budget Act unconstitutional insofar as it denies equal protection of the laws to the plaintiffs, County Court Judges, Family Court Judges and Surrogates by whom this suit is brought and (2) that, accordingly, these Judges are entitled to retroactive salary increments.

Judges Jasen, Jones, Wachtler, Meyer and Simons concur in Per Curiam opinion; Judge Fuchsberg dissents and votes to reverse in a separate opinion; Chief Judge Cooke taking no part.

Order modified, with costs to respondents, in accordance with the opinion herein and, as so modified, affirmed.


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Charles E. Friedgood, Appellant.
    Argued February 8, 1983;
    decided March 30, 1983

      POINTS OF COUNSEL

      Jack S. Hoffinger and Robert A. Goldschlag for appellant.
    I. The verdict was tainted by juror misconduct. (Parker v Gladden, 385 US 363; Turner v Louisiana, 379 US 466; Irvin v Dowd, 366 US 717; Bulger v McClay, 575 F2d 407; People v Brown, 48 NY2d 388; People v Crimmins, 26 NY2d 319; People v De Lucia, 20 NY2d 275; People v Cocco, 305 NY 282; People v Bouton, 50 NY2d 130; People v Marrero, 83 AD2d 565.) II. The prosecutor was guilty of misconduct. (People v Isaacson, 44 NY2d 511; People v Shapiro, 50 NY2d 747; People v Klein, 96 Misc 2d 564; People v Dayter, 33 AD2d 1055; Webb v Texas, 409 US 95; People v Ciaccio, 47 NY2d 431; People v Picciotti, 4 NY2d 340; People v Ausserau, 77 AD2d 152; People v Wedra, 56 AD2d 903; People v Arocho, 85 Misc 2d 116.) III. Appellant was denied a fair trial by misrepresentations of a prosecution witness. (Franks v Delaware, 438 US 154.)

      Denis Dillon, District Attorney (Bruce E. Whitney and Anthony J. Girese of counsel), for respondent.
    The order of the court below, which affirmed the lower court’s denial of appellant’s motion to vacate, should not be disturbed. (People v Brown, 56 NY2d 242; People v Ford, 46 NY2d 1021; People v Crimmins, 38 NY2d 407; People v Piazza, 48 NY2d 151; People v Monroe, 40 NY2d 1096; People v Donohue, 23 NY2d 1002; People v Scott, 10 NY2d 380; People v Session, 34 NY2d 254; People v Withridge, 33 AD2d 693, 27 NY2d 713; United States v Mandel, 415 F Supp 1033, 591 F2d 1347, 602 F2d 653.)
   OPINION OF THE COURT

Jasen, J.

The question raised on this appeal is whether the trial court properly denied defendant’s motion to vacate a judgment of conviction, grounded on claims of prosecutional misconduct, juror misconduct and misrepresentation by a prosecution witness, without initially conducting an evidentiary hearing. We hold that the facts of this case do not demonstrate that the trial court abused its discretion as a matter of law and, therefore, affirm the denial of the motion to vacate.

Defendant was arrested and charged with the murder of his wife, Sophie. He was also charged with grand larceny for stealing more than $450,000 worth of securities, jewelry and currency from his wife’s estate following her death. During defendant’s 11-week jury trial, the prosecution sought to prove that defendant had killed his wife by injecting her with multiple doses of Demerol over the course of two days, June 17 and June 18,1975. On December 15, 1976, the trial concluded and defendant was found guilty of murder in the second degree and grand larceny in the second degree. Defendant was sentenced on January 26, 1977 to concurrent terms of not less than 25 years to life imprisonment on the murder count and not more than 7 years on the grand larceny count. On June 5, 1978, the Appellate Division affirmed (63 AD2d 972). Leave to appeal to this court was denied on June 29, 1978 (45 NY2d 780).

In January, 1980, more than three years after the trial was concluded, defendant commenced the instant proceeding by bringing a motion in the Nassau County Court, pursuant to CPL 440.10, seeking an order vacating the judgment of conviction. Defendant’s motion was denied without a hearing. A divided Appellate Division affirmed (85 AD2d 698).

Defendant argues on this appeal that the judgment of conviction should be vacated and a new trial ordered because the jury’s verdict was tainted by prosecutorial misconduct, juror misconduct and the misrepresentations of a prosecution witness.

We note at the outset that the trial court’s denial of defendant’s motion without providing a hearing can be reversed only if we find that the court abused its discretion. (People v Brown, 56 NY2d 242, 246; People v Crimmins, 38 NY2d 407,418-419.) With respect to his claim of prosecutorial misconduct, defendant contends that the District Attorney improperly summoned a potential defense witness, Binnie Lazarus, to his office on July 29, 1975, by use of a Grand Jury subpoena and while there coerced her into signing a statement which was inconsistent with her prospective testimony. It is also contended that it was improper for the District Attorney not to present Binnie Lazarus’ testimony to the Grand Jury. While defendant does not specify which provisions of CPL 440.10 he relies on in asserting this claim, it appears that 440.10 (subd 1, par [b]) is the applicable section. That section provides that the court may vacate a judgment of conviction if it is shown that “[t]he judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor.” In support of his claim, defendant offered the affidavit of Binnie Lazarus, in which she states that she spoke with Sophie Friedgood on Wednesday morning, June 18, 1975, when, according to the prosecution’s expert witness, Mrs. Friedgood was dead. It is further alleged that Lazarus was summoned to the District Attorney’s office and coerced into signing a statement which stated that she was not sure whether she had spoken to Mrs. Friedgood on Tuesday, June 17, or Wednesday, June 18. The People, in opposition to defendant’s motion, offered the affidavits of four witnesses who were present at the meeting in the District Attorney’s office and denied that any threats were made or coercion used to force Binnie Lazarus to sign the statement.

Defendant’s claim that the trial court abused its discretion in not providing a hearing on this charge suffers from two defects. First, although defendant waited for over three years to bring the instant proceeding, his attorney made no effort to explain this delay other than to say he was busy working on defendant’s appeal. Moreover, nowhere does defendant disclose when he learned of the alleged coercive tactics employed by the prosecutor. As a result, defendant has failed to show that he used due diligence in adducing such facts prior to sentencing as required by CPL 440.10 (subd 3, par [a]). The second flaw in defendant’s position is that he has failed to allege sufficient facts to show that the prosecutor’s allegedly coercive tactics could have prejudiced his defense. Defendant was well aware that Binnie Lazarus had given a signed statement on July 9, 1975, nearly three weeks before she was subpoenaed to appear before the Grand Jury, in which she stated that she had spoken with Mrs. Friedgood on Wednesday morning, June 18, the day Mrs. Friedgood died. Nevertheless, defendant did not call Lazarus as a defense witness at trial, nor has he made any effort to explain why. If the reason for failing to do so was his knowledge that Lazarus had subsequently signed the contradictory statement on July 29 under the improper direction of the District Attorney, then his failure to promptly investigate the circumstances surrounding this change and immediately bring the matter to the court’s attention is inexcusable. If, however, the reason is that Lazarus’ original, arguably equivocal, statement and her anticipated testimony would not have been helpful to the defense, then the prosecutor’s alleged misconduct did not prejudice the defendant. Finding himself on the horns of this dilemma, defendant not only failed to make the requisite showing of due diligence (CPL 440.10, subd 3, par [a]), but he also failed to sufficiently allege that he was prejudiced by the alleged misconduct which, because it would have to be proven for defendant to succeed in having his conviction vacated, must be alleged. (CPL 440.30, subd 4, par [b].) Hence, defendant has not met the minimum requirements necessary for the court to either vacate his conviction or, in the alternative, order that an evidentiary hearing be held.

We note in passing that the mere act of interviewing Binnie Lazarus on July 29, 1975 and then deciding not to present her testimony to the Grand Jury does not constitute prosecutorial misconduct per se. Indeed, as the official charged with the orderly presentation of evidence to the Grand Jury, it is sound practice for the prosecutor to interview and, when appropriate, dismiss prospective witnesses in order to eliminate unnecessary or equivocal material so that grand jurors’ time can be conserved. (See United States v Mandel, 415 F Supp 1033, 1039-1040, conviction vacated on other grounds 591 F2d 1347, on reh conviction affd 602 F2d 653; cf. People v Stridiron, 33 NY2d 287, 292; People v Fein, 18 NY2d 162, 172.) This is especially so where, as here, the prospective witness had given a prior statement, conceded to have been freely made, wherein she stated that she was unsure of the very facts that she would be called upon to testify to before the Grand Jury. Consequently, it cannot be said that the trial court abused its discretion in denying defendant’s motion insofar as it was based on prosecutorial misconduct.

Defendant’s claim of juror misconduct, which is apparently premised on CPL 440.10 (subd 1, par [f]), is equally unavailing. That section provides that the court may vacate a judgment of conviction upon the ground that “[improper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom”. Once again, however, the only explanation given for failing to promptly investigate and report these alleged instances of juror misconduct is that defense counsel was busy preparing defendant’s appeal. We believe that this explanation, in light of defendant’s three-year delay in bringing this motion, is insufficient, as a matter of law, to satisfy the due diligence requirement of CPL 440.10 (subd 3, par [a]). Furthermore, with respect to all but one of defendant’s claims of juror misconduct, only hearsay allegations contained in the affidavits of defense counsel and a private investigator employed by him have been proffered in support thereof. Since no explanation was given as to why affidavits could not be obtained from jurors who allegedly admitted to having acted improperly or from those jurors who allegedly observed other jurors acting improperly, and since the only juror who gave an affidavit, Enoch Gilbert, did not state which or how many jurors heard an allegedly improper comment by juror Fred Lee, defendant cannot be heard to say that the trial court abused its discretion in denying the motion on this ground. (See People v Ford, 46 NY2d 1021; People v Session, 34 NY2d 254; People v Scott, 10 NY2d 380.)

We also note that, as a matter of policy, efforts to undermine a jury’s verdict by systematically questioning the individual jurors long after they have been dismissed in hopes of discovering some form of misconduct should not be encouraged. (People v De Lucia, 20 NY2d 275, 278; United States v Brasco, 516 F2d 816, 819, n 4, cert den 423 US 860.)

Defendant’s final ground for vacatur is that Dr. Helpern, a medical expert who testified for the prosecution, misrepresented facts critical to his opinion concerning the time of Mrs. Friedgood’s death. While defendant seeks to frame this contention in terms of CPL 440.10 (subd 1, par [b]), he is in actuality basing his claim on newly discovered evidence pursuant to CPL 440.10 (subd 1, par [g]). Consequently, the trial court’s exercise of discretion in denying the defendant’s motion on this ground is beyond our power to review. (People v Brown, 56 NY2d 242, 246, supra; People v Crimmins, 38 NY2d 407, 409, supra.)

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

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

Order affirmed.

      . Insofar as any or all of defendant’s claims are based on violations of his constitutional rights (see CPL 440.10, subd 1, par [d]; 440.10, subd 1, par [h]), the analyses which follow apply equally thereto.

      . CPL 440.10 (subd 3, par [aj) provides in full that:
      “Notwithstanding the provisions of subdivision one, the court may deny a motion to vacate a judgment when:
      “(a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal. This paragraph does not apply to a motion based upon deprivation of the right to counsel at the trial or upon failure of the trial court to advise the defendant of such right”.

      . In her original statement of July 8, Binnie Lazarus also stated that she was unsure of some facts.

      . Defense counsel alleges that one juror discussed the case with his wife and consulted a medical book during the course of the trial. It is further alleged that another juror read newspaper articles and watched television broadcasts concerning the trial and that several jurors discussed the case prior to deliberations.


text:
    The People of the State of New York, Respondent, v Peter R. Mahoney, Appellant.
    Argued February 10, 1983;
    decided March 31, 1983

      POINTS OF COUNSEL

      Douglas P. Rutnik for appellant.
    The New York and United States Constitutions prohibit the entry into a residence where the entry is founded upon an executed but undelivered search warrant, absent the presence of exigent circumstances. (Payton v New York, 445 US 573; Silverman v United States, 365 US 505; United States v United States Dist. Ct., 407 US 297; Steagald v United States, 451 US 204; People v Knapp, 52 NY2d 689; United States v Alvarez-Porras, 643 F2d 54; People v Knapp, 57 NY2d 161; Riley v Gray, 674 F2d 522; United States v Griffin, 502 F2d 959, 419 US 1050; Michigan v Tyler, 436 US 499.)

      Sol Greenberg, District Attorney (Ilene R. Bergman of counsel), for respondent.
    Defendant’s motions to suppress were properly denied. (Payton v New York, 445 US 573; Steagald v United States, 451 US 204; People v Hicks, 38 NY2d 90; Wong Sun v United States, 371 US 471; People v Arnau, 58 NY2d 27; People v Clements, 37 NY2d 675; People v Knapp, 52 NY2d 689.)
   OPINION OF THE COURT

Jasen, J.

On this appeal, we are asked to decide whether police officers with knowledge that a warrant authorizing the search of a suspect’s home has been issued and is en route may enter those premises before the warrant arrives.

On May 16, 1981, at approximately 8:00 p.m., Detective Raymond Milham of the Town of Colonie Police Department and a police informant arrived at the Holiday Inn on Route 5 in Colonie, New York, intending to meet David Longe, who was to sell Detective Milham a quantity of cocaine. Pursuant to a prearranged plan, Detective Mil-ham and the informant proceeded to room 110 to await Longe’s arrival.

At about 7:00 p.m. the same evening, Longe and his girlfriend, Mary Lou Rorick, drove to defendant Peter Mahoney’s residence at 2 Lucia Lane in Colonie, where they met defendant and his girlfriend Susan. At the house, Longe produced an ounce of cocaine and asked Mary Lou Rorick to deliver it to “Tim” in room 110 at the Colonie Holiday Inn. Rorick agreed and set out to make the delivery accompanied by defendant’s girlfriend, who rode along apparently to show Rorick the way. After arriving at the motel, they went to room 110 where they sold the cocaine to Detective Milham for $1,900. After the two women were arrested, Rorick told the police that. Longe could be located at 2 Lucia Lane and that he and defendant had approximately one-half pound of cocaine and 40 pounds of marihuana in the house. She further advised that she was expected back soon and that Longe would come looking for her if she was late.

At approximately 8:30 p.m., Detective Milham and Sergeant Krolak, who was part of the back-up team positioned in room 112, returned to the station house to prepare an application for a 24-hour “no-knock” warrant authorizing a search of the premises at 2 Lucia Lane. In the meantime, a number of other officers were dispatched to 2 Lucia Lane with orders to keep the premises under surveillance. After their arrival, one of the surveillance officers, Inspector Gerace, notified Sergeant Krolak that Longe and Mahoney were pacing the floor and looking out the upstairs picture window at 5- to 15-second intervals. Thereupon, Sergeant Krolak proceeded to 2 Lucia Lane while Detective Milham, armed with the warrant application and a supporting deposition from Mary Lou Rorick, proceeded to Town Justice Nicholas Griesler’s residence in Colonie.

After Judge Griesler signed the warrant, Detective Milham contacted Sergeant Krolak and advised him that the warrant had been signed and that he was en route with it. When the surveillance team was informed by Sergeant Krolak that Detective Milham was en route with a “no-knock” search warrant, they entered defendant’s premises by breaking down a side door. Both Longe and Mahoney were taken into custody. Detective Milham arrived approximately five minutes later with the warrant and a search of the premises was then conducted, during which large quantities of cocaine and marihuana were discovered.

Following the search, defendant was taken to the Colonie Police Department where he was given his Miranda rights. After executing a voluntary written waiver, the defendant told the police that he let Longe use his house to store drugs and in return received about a pound of marihuana and some cocaine.

On May 26, 1981, the Albany County Grand Jury returned a two-count indictment charging the defendant with criminal possession of a controlled substance in the first degree and criminal possession of marihuana in the first degree.

A suppression hearing was held on August 7 and September 10, 1981, and defendant’s motion to suppress both the physical evidence seized at 2 Lucia Lane and his incriminating statement was denied. On September 15, 1981, defendant entered a plea of guilty to the charge of criminal possession of a controlled substance in the second degree, and on October 5, 1981, was sentenced to an indeterminate term of six years to life imprisonment. On appeal, the Appellate Division unanimously affirmed the denial of defendant’s motion to suppress. Leave to appeal to this court was granted by a Justice of the Appellate Division.

On this appeal, defendant contends that the entry by the police pursuant to a validly executed but undelivered search warrant was illegal and, therefore, violated his right against unreasonable search and seizure pursuant to the Fourth Amendment of the United States Constitution and section 12 of article I of the New York State Constitution. In support of this contention, defendant relies primarily upon Payton v New York (445 US 573), wherein the Supreme Court held that, absent exigent circumstances, a warrantless entry into a person’s home is unconstitutional. Defendant argues “that an executed but undelivered search warrant is tantamount to there being no warrant for purposes of the illegal entry, rendering Payton directly applicable.” It is crucial to note, at the outset, that in Payton the police who entered the defendant’s apartment to arrest the defendant made no effort to obtain a warrant authorizing the entry. By sharp contrast, the police in the instant case refrained from entering defendant’s house until they knew a search warrant had been issued. Payton, therefore, is clearly distinguishable. We conclude that, once a warrant had been issued by a neutral magistrate, physical possession of the warrant at the time of entry was not required under the facts of this case.

Thus, it should be clear that the evil Payton sought to prevent was the warrantless entry inside a home to search for weapons or contraband. “Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” (Payton v New York, supra, at p 590.) This is precisely what was not done in this case. A warrant to search was obtained by the police from a neutral magistrate who had determined that probable cause did exist to enter and search defendant’s apartment.

Detective Milham received first-hand information that defendant had in his possession large quantities of cocaine and marihuana. Rather than immediately proceeding to defendant’s home and seizing the contraband, Detective Milham applied to Judge Griesler for a search warrant. Even though the police* officers assigned to watch defendant’s house observed defendant and Longe growing restless, they refrained from entering the premises. Not until they were informed that a search warrant had been issued did the police enter defendant’s home and it was not until the warrant designating the place to be searched and the contraband to be seized had arrived that a search of the premises was conducted. It is clear, therefore, that the purpose and spirit of the warrant procedure — to place a neutral magistrate between the police and the citizen — was fully complied with, thus making suppression of the evidence seized unnecessary.

Defendant also claims that actual possession of the warrant is required by statute because CPL 690.50 (subd 1) requires a police officer to give notice of his authority and purpose to an occupant of the premises before entry and to show the occupant the warrant or a copy thereof upon request. CPL 690.50 (subd 1), however, is wholly inapplicable to this case because the subject warrant was executed pursuant to subdivision 2 of CPL 690.50. Paragraph (b) of that subdivision provides that a police officer need not give notice to anyone of his purpose and authority before entering the premises if the warrant so provides. Inasmuch as the warrant issued by the magistrate authorized the police “to enter the premises to be searched without giving notice of your authority and purpose” and since the officers who initially entered defendant’s house had been informed by Sergeant Krolak that a “no-knock” warrant had been issued, their unannounced entry was entirely proper.

The fact that the officers entered defendant’s house without actual possession of the search warrant, which they knew had been issued, in no way interfered with defendant’s right to be free from unreasonable governmental intrusions. The entry and search in this case was authorized by a magistrate prior to the entry and search occurring. Our Federal and State Constitutions require nothing more.

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

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

Order affirmed.

      . Because defendant does not claim that he requested to see the search warrant, we express no opinion as to the effect of such a request under the facts of this case.

      . We express no opinion as to what consequences would follow if the officers who entered the premises did not know that the warrant authorized an unannounced entry.