text:
    In the Matter of Kwok T., a Person Alleged to be a Juvenile Delinquent, Respondent. Neil Mauriello, Appellant.
    Argued October 7, 1977;
    decided November 22, 1977

      POINTS OF COUNSEL

      W. Bernard Richland, Corporation Counsel (Susan L. Bloom, L. Kevin Sheridan and Leonard Koerner of counsel), for appellant.
    I. The evidence against respondent was not rendered inadmissible by reason of the seizure of photographs from his companion, Paul Wong. (Cardwell v Lewis, 417 US 583; Brown v United States, 411 US 223; Alderman v United States, 394 US 165; Simmons v United States, 390 US 377; Wong Sun v United States, 371 US 471; United States v Masterson, 383 F2d 610, 390 US 954.) II. Respondent’s statement to Detective Mauriello was not obtained in violation of Miranda v Arizona, and the evidence thereafter seized at his apartment was not seized in violation of his Fourth Amendment rights. (Miranda v Arizona, 384 US 436; People v Rodney P. [Anonymous], 21 NY2d 1, cert den sub nom. Prucha v New York, 390 US 992; People v Yukl, 25 NY2d 585; Elkins v United States, 364 US 206; People v Perel, 34 NY2d 462; Coolidge v New Hampshire, 403 US 443; Chambers v Maroney, 399 US 42; People v Doerbecker, 39 NY2d 448; People v Sanders, 52 Misc 2d 989; People v Concepcion, 38 NY2d 211.)

      Barbara H Dildine, William E. Hellerstein and Charles Schinitsky for respondent.
    The decision of the court below suppressing the guns, which were obtained in violation of respondent’s State and Federal constitutional rights against unreasonable searches and self incrimination, was properly rendered. (United States v Harris, 403 US 573; People v Schnitzler, 18 NY2d 457; People v Marshall, 13 NY2d 28; Steele v United States No. 1, 267 US 498; Sgro v United States, 287 US 206; People v Loewel, 50 AD2d 483, 41 NY2d 609; People v Mercado, 45 AD2d 699, 35 NY2d 854; Katz v United States, 389 US 347; Jones v United States, 357 US 493; Cupp v Murphy, 412 US 291.)
   OPINION OF THE COURT

Jasen, J.

On February 20, 1975, two police officers assigned to an anti-crime unit investigating youth gangs in New York’s "Chinatown” spotted a juvenile for whom a Family Court warrant was outstanding. Having parked their patrol car, the officers returned to the location where they had seen the juvenile only to find that he was no longer there. In an attempt to determine his whereabouts, the officers decided to investigate a nearby clubhouse known to be frequented by the juvenile. While outside these premises, the police officers observed five boys exiting from the clubhouse. When four of the boys, including the respondent, crossed the street, the police stopped and questioned the group.

In the course of their inquiry, the police obtained from one of the boys photographs depicting the respondent holding firearms. Seeking to determine the immediate location of the weapons displayed in the photographs, the police focused their questioning upon the respondent. In response to this questioning, the respondent admitted possessing two guns and led the police to his home where the guns were seized and the respondent arrested. Prior to his arrest, respondent was not advised of his rights either with regard to the assistance of counsel or of his right to remain silent.

The Family Court denied a motion to suppress the seized weapons and, after a trial, adjudicated the respondent a juvenile delinquent. The Appellate Division reversed, on the law, granted the motion to suppress the physical evidence, and dismissed the proceeding. The court was of the opinion that the interrogation of the respondent after the discovery of the photographs was custodial within the meaning of Miranda v Arizona (384 US 436) and, therefore, the police were required to give the respondent the necessary warnings before conducting their interrogation.

On this appeal, by the People, it is argued that the respondent was not in custody during the street investigative inquiry and, thus, preinterrogation advice and warnings were not required prior to the inquiry.

Once again, we are asked to draw a line between conduct which is a permissible exercise of the investigative function of the police and conduct which must be characterized as a seizure, which places the individual interrogated in custody, necessitating the giving of preinterrogation warnings. At what precise point in a street encounter the police are required to give an individual preinterrogation warnings is a question which cannot be resolved by resort to a simplistic answer. Certainly, "there is no litmus-paper test for determining what kind or degree of interference with one’s freedom of action brings the [fifth] amendment into play.” (La Fave, "Street Encounters” and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich L Rev 40, 97.)

In Miranda, the Supreme Court defined custodial interrogation as "questioning initiated by law enforcement officers after a person had been taken into custody or otherwise deprived of his freedom of action in any significant way.” (384 US, at p 444, supra.) There is, of course, a wide spectrum of police conduct separating custodial interrogation in a police-dominated atmosphere and an investigative inquiry addressed to an individual during a street encounter. To be sure, an interrogation held in an environment selected deliberately to subjugate the will of an individual may not proceed without the police informing the individual of his rights. (Miranda v Arizona, 384 US, at pp 457-478, supra; People v Rodney P. [Anonymous], 21 NY2d 1, 5.) However, routine police investigation of suspicious conduct on the street generally does not entail a significant deprivation of freedom which would require Miranda warnings. (See People v Rodney P. [Anonymous], 21 NY2d, at pp 10-11, supra.)

Often police may not have probable cause to arrest an individual, but only a reasonable suspicion that he is engaged in criminal activity. Lacking probable cause the police may not lawfully place an individual in custody. Nonetheless, to ensure effective law enforcement the police have the right to stop and inquire as to the conduct of an individual whom they have reasonable suspicion to believe has committed a crime. (See People v Cantor, 36 NY2d 106; People v De Bour, 40 NY2d 210; People v Stewart, 41 NY2d 65; People v Townes, 41 NY2d 97.)

Certainly, in a brief street encounter in which the police suspect an individual of some criminal activity, it should not be required that warnings be given before questions are asked. To do so would unnecessarily hamper the ability of the police to thwart criminal activity. The need for allowing the police a certain degree of latitude in this area is amply demonstrated in the present case.

While in search of a juvenile for whom a warrant had been issued by Family Court, two police officers stopped and questioned a group of boys exiting from a clubhouse which the officers were aware had been frequented in the past by the juvenile wanted on the warrant. As a result of their inquiry, the officers obtained from one of the boys, other than the respondent, photographs depicting the respondent holding weapons. At this point, although the police officers did not have probable cause to arrest the respondent since they did not know whether he still possessed the guns, they certainly had reasonable suspicion to believe that a crime may have been committed, thus giving them the right—in fact a duty— to inquire whether the respondent had knowledge as to the present whereabouts of the weapons. Confronted with an apparent violation of the Penal Law—a violation which presented a grave danger in the neighborhood—the absence of probable cause to arrest did not preclude the police from conducting an investigative inquiry to determine whether, in fact, a crime had been committed.

The question remains, however, whether the police, although initially justified in inquiring as to the whereabouts of the weapons without giving the respondent preinterrogation warnings, conducted their interrogation in such a manner that would lead a reasonable man to believe that his freedom had been deprived in a significant way. (See People v Rodney P. [Anonymous], 21 NY2d 1, 9, supra.) We believe not. Here, the respondent was questioned on the street, his friends nearby, and on familiar territory close to his home. There was no attempt made to restrain respondent and the nature of the questioning was not coercive. Nor is there any evidence that the police drew their guns or abused the respondent in any way.

Interestingly, these facts are not unlike those presented in People v Rodney P. (Anonymous) (supra). There, the police, after learning of the defendant’s identity from his accomplice in a car theft, questioned the defendant in front of his home. Finding that a reasonable person would not have believed that his freedom had been restricted in a significant way, we held that preinterrogation warnings were not required to have been given. (21 NY2d, at p 10, supra.)

Respondent would contend that Rodney P. is distinguishable in that in the present case the respondent knew that the police suspected him of a crime, for the simple reason that the basis for the questioning was the seized photographs. In essence, respondent’s argument is that a suspect having knowledge of the information which led the police to question him is more apt to believe that his freedom has been restrained than is a suspect without such knowledge. The test, however, in deciding whether a defendant was in custody at the time of the questioning "is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s position.” (People v Yukl, 25 NY2d 585, 589, cert den 400 US 851.) Thus, a suspect’s awareness that the police already possess incriminating evidence against him generally is irrelevant in determining whether the interrogation was custodial. Since the manner of questioning cannot be characterized as custodial, the police were not required to give the respondent preinterrogation warnings prior to questioning him in conjunction with their investigative inquiry as to the whereabouts of the weapons portrayed in. the seized photographs.

Although we conclude that the interrogation of the respondent was not custodial, we must still decide whether the ensuing warrantless search of the respondent’s apartment and seizure of the weapons involved was reasonable and necessary under the circumstances. In the absence of a valid search warrant, governmental intrusion into the privacy of the home is, with certain limited exceptions, prohibited by constitutional limitations. (NY Const, art I, § 12; US Const, 4th, 14th Arndts; People v Gonzalez, 39 NY2d 122.) The exception upon which the People rely is the existence of exigent circumstances necessitating an immediate search of respondent’s apartment. While it has been recognized that there are circumstances which make the requirement of obtaining a search warrant either unwise or impractical, the burden of justifying a warrantless search is placed squarely on the law enforcement agency that seeks to apply the exception of exigent circumstances. In other words, the People who seek exemption from constitutional mandate must show that the exigencies of the situation made that course imperative. (McDonald v United States, 335 US 451, 456.)

The People contend that upon learning from the respondent that he had weapons secreted in his apartment, it became imperative for the police to act immediately before someone in the apartment could remove or destroy the weapons. While we would agree that the police could search respondent’s apartment upon learning from him that the weapons were at his apartment where they reasonably believe such evidence is threatened with loss from any source, we do not find, upon the record before us, that the police had any basis to reasonably believe that the weapons were in fact threatened with removal or destruction. Even though the police had probable cause to arrest the respondent, as they did after his admission that he possessed the weapons, as well as probable cause to justify the issuance of a search warrant, it does not justify a warrantless search of the respondent’s apartment, absent a showing that the weapons were likely to be removed from the premises or destroyed. The People having failed to establish this essential element, other than alleging the possibility of destruction or removal, it cannot be said that the People have met the burden of justifying the warrantless search and seizure of the evidence. Moreover, the police had ample opportunity to obtain a search warrant after arresting and placing the respondent in custody. Certainly, having been incarcerated, the respondent was prevented from returning to his apartment to remove or destroy the weapons. Under these circumstances, we cannot say that exigent circumstances were present necessitating an immediate warrant-less search of respondent’s apartment.

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

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

Order affirmed, without costs.


source: Caselaw Access Project

author: Jasen, J. Fuchsberg, J. (concurring).

license: Public Domain

text:
    The People of the State of New York, Respondent, v John Coleman, Appellant.
    Argued October 3, 1977;
    decided November 22, 1977

      POINTS OF COUNSEL

      Patrick F. Broderick for appellant.
    I. The ex parte order compelling defendant to appear in a lineup triggered his right to assistance of counsel. (People v Blake, 35 NY2d 331; People v Sugden, 35 NY2d 453; Kirby v Illinois, 406 US 682; United States ex rel. Robinson v Zelker, 468 F2d 159; People v Vega, 51 AD2d 33.) II. Defendant was improperly denied his right to have notice of his removal from jail by ex parte order to appear in a lineup. (Matter of District Attorney of Kings County v Angelo G., 48 AD2d 576; People v Sugden, 35 NY2d 453; Matter of Pannell v Jones, 36 NY2d 339; United States v Harris, 453 F2d 1317, 412 US 927.) III. Silence in a hostile setting belies any waiver of defendant’s right to assistance of counsel. (People v Paulin, 25 NY2d 445.)

      John J. Santucci, District Attorney (Bruce E. Whitney and George Freed of counsel), for respondent.
    I. Appellant affirmatively waived the right to contest the propriety of the ex parte order requiring him to participate in a lineup. (People v Tutt, 38 NY2d 1011; People v Robinson, 36 NY2d 224; People v

      Gines, 36 NY2d 932; People v Pereira, 26 NY2d 265; People v Feldt, 26 AD2d 743; United States ex rel. Foreman v Casscles, 311 F Supp 526; Schmerber v California, 384 US 757; People v Sugden, 35 NY2d 453.) II. The hearing record supports a finding that appellant properly waived his right to counsel. However, inasmuch as the courts below made no finding as to waiver, the case should be remitted for such a determination. (People v Hobson, 39 NY2d 479; People v Sugden, 35 NY2d 453; People v Blake, 35 NY2d 331; People v Waterman, 9 NY2d 561; Kirby v Illinois, 406 US 682, Massiah v United States, 377 US 201; Miranda v Arizona, 384 US 436; Schmerber v California, 384 US 757; People v Burwell, 26 NY2d 331.)
   OPINION OF THE COURT

Jasen, J.

We are asked to pass on the question of whether a defendant, incarcerated pending trial on a charge for which he was represented by counsel, may waive, in the absence of an attorney, his right to counsel at a lineup, held in an unrelated investigation, in which his presence was secured pursuant to a court order of removal.

On May 21, 1974, a robbery occurred at a bar in Queens County. Two witnesses to the robbery identified defendant from a photographic display shown to them on May 22, 1974. As a result of these identifications, two lineups were held on May 28, 1974 to allow the witnesses an opportunity to identify the defendant in person. At the time of the lineups, defendant was incarcerated in the Queens House of Detention on an unrelated charge. To secure his presence in the lineups, the police obtained an ex parte order from the Criminal Court of the City of New York directing defendant’s removal from the detention center. At each of the lineups conducted, defendant was identified by the witnesses. On the basis of these identifications, as well as the earlier photographic identifications, defendant was indicted on May 29, 1974.

At a hearing held to determine the admissibility of these identifications, the photographic identifications were suppressed as suggestive; however, the lineup identifications were held admissible. Subsequently, after a jury trial, the defendant was convicted of two counts of robbery in the first degree. The Appellate Division affirmed, with two Justices dissenting.

Cognizant of the dangers of misidentification and suggestive procedures which may accompany a corporeal viewing, the Supreme Court has held that a postindictment lineup is a critical stage, at which point the accused has a right to have counsel present at the identification. (United States v Wade, 388 US 218; Gilbert v California, 388 US 263, 272.) The rule has been refined in Kirby v Illinois (406 US 682, 688), where the Supreme Court held that an accused’s right "to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.” (See People v Blake, 35 NY2d 331, 335.) In acknowledging the difficulty in determining the exact moment at which the right to counsel attaches, the court noted that in all those cases in which the right to counsel has been found to attach, adversary judicial proceedings have been initiated either by "formal charge, preliminary hearing, indictment, information, or arraignment.” (Kirby v Illinois, 406 US, at p 689, supra; see People v Blake, 35 NY2d, at p 335, supra.)

Interpreting the Federal mandate formulated in Kirby, we held that a criminal proceeding is initiated in New York by the filing of an accusatory instrument. (People v Blake, 35 NY2d, at p 339, supra.) "Consequently, upon the filing of an accusatory instrument, whether or not a lawyer has been retained or assigned for general purposes, there may not be, except in exigent circumstances, a corporeal viewing of the defendant for identification purposes in the absence of counsel” (People v Blake, 35 NY2d, at p 340, supra).

Although in Blake the commencement of adversary judicial proceedings was equated with the filing of an accusatory instrument, it has been recognized that the filing of an instrument other than one forming the basis of an arraignment or issuance of an arrest warrant, may nevertheless constitute a "formal” proceeding triggering an accused’s right to counsel. In People v Sugden (35 NY2d 453, 461), we held that a court order directing the removal of a defendant serving a sentence on an unrelated charge requiring him to visit the scene of a crime he was alleged to have committed, was "sufficiently 'judicial’ in nature, not unlike arraignment or the issuance of an arrest warrant, so that a right to counsel exists at 'critical stages’ held after tht order is issued (see People v. Blake, 35 N Y 2d 331; People v. Waterman, 9 N Y 2d 561, 565-566; see, also, Kirby v. Illinois, 406 U. S. 682, 689-690; Massiah v. United States, 377 U. S. 201, 205-297).” In Sugden, we did not reach the question whether a defendant may waive the right to counsel after it has attached as a result of a judicial order of removal. Today we reach this question and decide that the right to counsel may be waived notwithstanding the absence of counsel whom a defendant had retained with respect to a wholly unrelated charge.

At the time the police secured the presence of defendant at the lineup, pursuant to a court order of removal, he was incarcerated pending trial on an unrelated charge. Although the defendant was represented by counsel on the unrelated charge—a fact which the police admittedly were aware of—he was not represented by counsel in the investigation of the robbery complaint for which the lineup order was obtained. For this reason People v Hobson (39 NY2d 479) is not, as appellant would contend, dispositive of the permissibility of a waiver of the right to counsel.

In Hobson, where an attorney had been appointed to represent the defendant during a lineup, we held that defendant, while being held in custody and questioned by a police officer, could not thereafter waive his right to counsel in the absence of his attorney. In reaffirming the vitality of the Donovan-Arthur principle (see People v Arthur, 22 NY2d 325; People v Vella, 21 NY2d 249; People v Donovan, 13 NY2d 148), we said that "[o]nce a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer. (People v Arthur, 22 NY2d 325, 329).” (39 NY2d, at p 481, supra.)

The difference between defendant Hobson and this defendant is that here no attorney had entered the criminal proceeding in which the police, as part of their investigation of the robbery complaint, secured the presence of the defendant in a lineup. The fact that defendant was represented by counsel in a proceeding unrelated to charges under investigation is not sufficient to invoke the rule that, once a lawyer has entered a criminal proceeding representing a defendant on a charge under investigation, the defendant may not waive his right to counsel in the absence of the attorney. The representation by counsel must be in the same or related investigation or proceeding. Certainly, the presence of counsel in an unrelated proceeding does not "immunize the defendant from normal, good faith, investigation” of other criminal activity. (People v Clark, 41 NY2d 612, 615.) Since no lawyer representing the defendant had entered the criminal proceedings involving the investigation of the robbery complaint at the time the lineup order was obtained, the defendant could waive his right to counsel.

Although the defendant may validly waive his right to counsel under the circumstances presented, there still remains the question of whether the defendant did waive his right to counsel, as the People contend. The testimony of the police officer revealed that the defendant was informed that he,was a suspect in the Queens robbery and in conjunction with this investigation he would be placed in a lineup. He was also informed that he had a right to have an attorney present at the lineup. In response to this information, defendant apparently nodded his head affirmatively, a reaction which the police officer assumed to indicate that the defendant understood his rights. When asked whether he desired to have an attorney present, however, the defendant nodded negatively, apparently indicating, at least in the mind of the police officer, that he had waived his rights. Notwithstanding the absence of a verbal request for an attorney, the defendant refused to sign a statement acknowledging that he had been informed of his right to counsel.

Whether the defendant validly waived his right to counsel is a question which must be resolved in light of the totality of the circumstances surrounding the alleged waiver. The defendant’s conduct in response to the police officer’s inquiry—whether he wanted an attorney present—cannot be divorced from his refusal to sign a statement indicating that he had been informed of this right. Before a waiver of the right to counsel will be upheld, it must be shown that it was voluntarily and intelligently made. (People v Paulin, 25 NY2d 445, 450.) In light of the equivocal conduct of the defendant in refusing to sign a waiver statement, we hold that the prosecution has failed, as a matter of law, to establish that the defendant voluntarily and intelligently waived his right to counsel.

Accordingly, the order of the Appellate Division should be reversed, a new trial ordered, and the identifications of defendant in the lineups suppressed.

Fuchsberg, J. (concurring).

I join in the court’s conclusion that, as a matter of law, there was no knowing and voluntary waiver of counsel in this case and that there must therefore be a reversal. But I would leave open—and certainly not decide adversely to the defendant at this time—whether he in any event could have waived without consulting counsel under the circumstances in this case. Those circumstances, not fully developed, include, among others, the fact that the defendant was represented by counsel on the charge on which he was being held in the detention center, that his removal from there to the scene of the lineup to be conducted in connection with the second crime in which the police believed he was implicated was effected by formal court order, that the order was obtained ex parte, and that opportunity was thereby denied for counsel to advise his client on at least the crossover consequences of the second charge to the defense of the first one.

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

Order reversed, etc.


author: Wachtler, J. Jasen, J. (concurring in part and dissenting in part).

text:
    Hector Brito et al., Respondents, v David Ross, as a Justice of the Supreme Court of the State of New York and as Administrative Justice of the Criminal Court of the City of New York, et al., Appellants.
    Argued October 6, 1977;
    decided November 22, 1977

      POINTS OF COUNSEL

      W. Bernard Richland, Corporation Counsel (Leonard Koerner, L. Kevin Sheridan and Edward J. Schwarz of counsel), for appellants.
    The determination of the New York City Commissioner of Correction to separate prisoners into two groups, below and above the age of 21, was not arbitrary, capricious or contrary to law. The court below erred in substituting its judgment for the Commissioner of Correction in requiring the segregation of prisoners into two groups above and below the age of 19. (Matter of Pell v Board of Educ., 34 NY2d 222; People ex rel. Price v Warden of N. Y. City Correctional Inst, for Men, 48 AD2d 275; Matter of Duval v Smith, 50 AD2d 1066; Wolff v McDonnell, 418 US 539.)

      Donald H. Zeigler, William J. Gallagher and Donald L. Doernberg for respondents.
    Section 88 of the New York City Criminal Court Act compels segregation of prisoners 19 and over from those not yet 19 while in the court detention pens.
   OPINION OF THE COURT

Wachtler, J.

The question in this article 78 proceeding is whether the detention facilities at the New York City Criminal Court building in Manhattan adequately provide "for the separation of * * * youthful and less hardened offenders from older or more hardened offenders” as required by section 88 of the New York City Criminal Court Act. The current practice at the courthouse is to separate persons who are under 21 years of age from those who are older. Petitioners claim, inter alia, that under the statute the separate facilities for youths should only include those who are less than 19 years old. The Appellate Division agreed with this contention and we granted leave to consider the issue.

The two named petitioners, Hector Brito and Herman Mills, were arrested in May, 1976. At the time they were both less than 19 years old. Although they were arrested on different dates in connection with different incidents, the history of their detention is virtually identical. Each was initially held in a police station, apparently overnight, and then transported to the New York City Criminal Court, at Centre Street, for arraignment. Because of a backlog in the arraignment parts each petitioner spent the first day in detention cells located in the courthouse. In the evening each petitioner was returned to the police station and then in the morning was transported back to the courthouse. After spending part of the second day in the court’s detention facilities, each petitioner was arraigned. Mills was released on cash bail. Brito’s bail was set at $2,500. He was unable to post this amount and was thus sent to the Adolescent Reception and Detention Center at Riker’s Island to await trial.

On May 11, 1976 the petitioners commenced this article 78 proceeding in the Appellate Division complaining, on their own behalf and on behalf of all those similarly situated, about the detention conditions they encountered during their appearances at the courthouse. In the petition and the accompanying affidavits it was alleged that in the court detention cells and even in the courtrooms youthful detainees were commingled with adults, including persons more than 21 years old, many of whom were hardened criminals, sex offenders, drug addicts or alcoholics. The petition sought mandamus and injunctive relief directing the respondents to segregate youthful from adult offenders in accordance with section 88 of the New York City Criminal Court Act. It was urged that since CPL 720.10 defined youthful offenders as persons between 16 and 19 years of age, persons in this age group should be maintained in separate detention facilities during court appearances.

In their answer the appellants denied that adults and youths were detained together. They conceded that there were no separate facilities maintained at the courthouse for persons under 19 years of age. The existing practice, apparently initiated by the City Commissioner of Correction, was to segregate persons under 21 from those who were older. It was urged that this satisfied the requirements of section 88 of the New York City Criminal Court Act since the City Commissioner of Correction was responsible for maintaining and supervising the detentional cells for the court (New York City Charter, § 623) and he, in turn, was bound to insure that persons "under the age of twenty-one years shall not be put or kept in the same room with prisoners twenty-one years of age or older” (Correction Law, § 500-c).

The Appellate Division inspected the courthouse and found that many of the conditions alleged in the petition did not exist at the present time. They concluded however that the current practice of segregating all persons under 21 from older detainees was invalid. After summarizing the arguments of the parties the Appellate Division stated: "We believe that inasmuch as those held for arraignment are in the initial stages of the criminal justice process, until such time as the court determines otherwise, the dividing line should be for those under 19.” However, recognizing the administrative burden involved in further segregating persons brought to the court for arraignment from those who are there "for trial or otherwise”, the Appellate Division held that all persons under 19 should be detained in separate facilities. (53 AD2d, at p 416.)

In the context of this proceeding that determination was erroneous. It is important to emphasize that the only issue properly presented in this petition was whether the current practice violates section 88 of the New York City Criminal Court Act. That section provides: "in every building used by the court or any part thereof for the detention of prisoners, adequate provision shall be made for the separation * * * of youthful and less hardened offenders from older and more hardened offenders of the same sex.” The statute does not further define "youthful” and "older” offenders in terms of a specified age limit. The other two statutes, CPL 720.10 cited by the respondents and section 500-c of the Correction Law cited by the appellants, indicate conflicting or variant age limitations in different contexts. Neither however is applicable here.

Although CPL 720.10 (subd 1) defines a youth as a person "at least sixteen years old and less than nineteen years old”, that definition is limited in its application to CPL article 720. In any event the youthful offender concept embodied in CPL article 720 is essentially designed to protect a youth after conviction, by ameliorating the consequences (cf. People ex rel. Wayburn v Schupf, 39 NY2d 682, 688; see, also, Pitler, New York Criminal Practice Under the CPL, pp 366, 387-389) and does not deal with detention, or insure any particular method of detention, for youthful persons held prior to conviction.

Section 500-c of the Correction Law, which is relied on by the appellants, provides, as noted earlier, that "Persons under the age of twenty-one years shall not be put or kept in the same room with prisoners twenty-one years of age or older.” This statute however is primarily concerned with county jails maintained by Sheriffs. It specifically excludes detention facilities located within the City of New York, with the exception of civil jails maintained by the New York City Sheriff. It has no application to the courthouse detention cells involved in this case.

In sum the determination to separate youths from adults at age 21 is not prohibited by section 88 of the New York City Criminal Court Act. On the narrow issue presented, the petition should have been dismissed. We should note however that in holding that the determination to segregate detainees in this manner is not illegal under the statute, we have not considered who should properly make the determination or whether it was made by the proper party in this case. It appears from the record that the New York City Commissioner of Correction was permitted to make the decision, perhaps on the assumption that his general responsibility to maintain and supervise the "court pens” (see New York City Charter, § 623) included the right to determine how youths and adults should be segregated. There is no contention that this is ultimately a question for the court to decide (see, e.g., NY City Criminal Ct Act, § 90), or that the courts may possess inherent power, at least administratively, to determine how persons, particularly young persons, brought to the court on pending criminal charges should be treated while they are held in custody within the courthouse. This issue was not presented in the petition and was not argued or briefed on the appeal and thus we have not considered it.

Accordingly, the judgment of the Appellate Division should be reversed and the petition dismissed without prejudice to commencement of a new proceeding.

Jasen, J. (concurring in part and dissenting in part).

I would reverse the order of the Appellate Division and dismiss the petition solely upon the ground that the determination of the New York City Commissioner of Correction to separate prisoners into two groups, below and above the age of 21, was not contrary to law and that the Appellate Division erred in substituting its judgment for that of the Commissioner of Correction in lowering the age to 19.

The Commissioner of Correction of the City of New York is vested with the (t[s]ole power and authority concerning the care, custody and control of all court pens for the detention of prisoners while in the criminal courts of the city of New York, the family court of the state of New York within the city of New York, the supreme court in the counties of New York, the Bronx, Kings, Queens and Richmond * * * who have been sentenced, are awaiting trial or are held for any other cause.” (New York City Charter, § 623, subd 2; emphasis added.) Consistent with the city charter provision subdivision 1 of section 112 of the Correction Law places all State prisoners under the care, custody and control of the State Commissioner of Correction.

Exercising the power delegated to him, the Commissioner of Correction of the City of New York, seeking to comply with section 88 of the New York City Criminal Court Act, ordered that prisoners detained in the Manhattan Criminal Court building detention facilities be separated at the age of 21.

Where, as in this case, review is sought of the construction of a statute by an agency charged with its administration, the scope of the inquiry is limited. So long as the determination rests on a rational basis, and is not contrary to law, appellate courts must not upset it. (Matter of Pell v Board of Educ., 34 NY2d 222, 230-231; Matter of Howard v Wyman, 28 NY2d 434, 438.) Since the classification established by the New York City Commission of Correction satisfies-the test of rationality, and is not contrary to law, I would reverse with prejudice and reinstate the determination of the commissioner.

Chief Judge Breitel and Judges Gabrielli, Jones, Fuchs-berg and Cooke concur with Judge Wachtler; Judge Jasen concurs in part and dissents in part and votes to reverse and dismiss the petition with prejudice in a separate opinion.

Judgment reversed, without costs, and the petition dismissed without prejudice to commencement of a new proceeding.

      . The Appellate Division also held that class relief was not necessary in this case. That portion of their order is not in issue on this appeal.

      . We note that after the commencement of this proceeding the statute was amended (L 1977, ch 189). We have not considered the application of the subsequent amendment on this appeal. Indeed neither side has raised the issue in this court nor, as indicated, in the courts below.


author: Fuchsberg, J. Gabrielli, J. (dissenting).

text:
    The People of the State of New York, Respondent, v Harold Mayrant, Appellant.
    Argued October 14, 1977;
    decided December 14, 1977

      POINTS OF COUNSEL

      Rowan Peter Kirscheimer and William E. Hellerstein for appellant.
    The trial court’s decision to permit the People to cross-examine appellant on previous convictions because they demonstrated appellant’s propensity to commit the crime for which he was on trial, was clearly erroneous. (People v Sandoval, 34 NY2d 371; People v Webster, 139 NY 73; People v Caviness, 38 NY2d 227.)

      Robert M. Morgenthau, District Attorney (Jane Deutscher and Peter L. Zimroth of counsel), for respondent.
    I. Defendant’s guilt was established beyond a reasonable doubt. II. The trial court properly permitted the cross-examination of defendant as to his prior criminal acts. (People v Sandoval, 34 NY2d 371; People v Schwartzman, 24 NY2d 241; People v Caviness, 38 NY2d 227; People v Duffy, 36 NY2d 258; People v Crimmins, 36 NY2d 230.).
   OPINION OF THE COURT

Fuchsberg, J.

Harold Mayrant has been convicted of assault in the second degree in connection with his stabbing of a friend, Alexander Woods. On appeal to us from an Appellate Division order of affirmance, the defendant complains that the Trial Judge, in denying his Sandoval (People v Sandoval, 34 NY2d 371) application to preclude his cross-examination as to earlier convictions, applied an erroneous legal yardstick.

Specifically, prior to trial defendant sought an informational ruling as to whether his two prior convictions would be permitted to be used to impeach his credibility if he took the stand in his own defense. The motion was denied with leave to renew at the close of the People’s case. At that time, it was denied again, the Trial Judge giving the following reason: "THE COURT: The Court, as I stated before, has heard extensive arguments in this case as to defendant’s prior propensities for committing violent acts, [which] will go to the heart of the defendant’s testimony should he take the stand as to who was or who was not the aggressor in the instant proceeding. And for that reason this Court will permit, if [he] take[s] the stand, [the] defendant to be cross-examined as to whether he did in the past, rather if he was in the past convicted of acts of violence and so your motion is denied.”

As authorized by this ruling, during defendant’s testimony the prosecutor developed the circumstances underlying each conviction. In one, defendant, who had fired several shots at a robber, had eventually pleaded guilty to possession of a weapon. In the second, which arose out of an altercation in which the defendant, presumably to ward off an attack with a knife, struck a man in the head with a golf club, he had pleaded guilty to harassment.

The applicable rules of law are uncomplicated. A defendant who exercises his constitutional right to testify may be cross-examined in good faith concerning his prior immoral, vicious or criminal conduct only if it has a bearing on his credibility as a witness (People v Dickman, 42 NY2d 294, 297; People v Wright, 41 NY2d 172, 175; People v Duffy, 36 NY2d 258, 262, cert den 423 US 861). It may not be resorted to simply to prove a propensity to commit the crime for which he is on trial (People v Jackson, 39 NY2d 64, 67; People v Duffy, supra, p 262; People v Schwartzman, 24 NY2d 241, 247, cert den 396 US 846; People v Russell, 266 NY 147, 152). For "[o]ne may not be convicted of one crime * * * because he committed another” (People v Goldstein, 295 NY 61, 64).

This principle is "rooted in practical policy, justice and fairness” rather than in logic (People v Richardson, 222 NY 103, 109-110; Richardson, Evidence [10th ed], § 170, p 139). While past events often may be a harbinger of future conduct, in the prosecution of criminal cases we are less concerned with such a generalization than with the requirement that each case be determined on its individual merits. As Chief Judge Cardozo reminded us, "There may be cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril of the innocent if character is accepted as probative of crime” (People v Zachowitz, 254 NY 192, 198; see, also, People v Cook, 42 NY2d 204, 208; 1 Wigmore, Evidence [3d ed], § 57, p 456).

These competing considerations require that, upon an application to limit the use of prior convictions of a defendant on his cross-examination, "a balance * * * be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility on the one hand, and on the other the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him from taking the stand on his own behalf’ (People v Sandoval, 34 NY2d 371, 375, supra). The determination of the permissible scope of cross-examination ostensibly bearing on the credibility of a witness thus rests in the sound discretion of the Trial Judge (People v Greer, 42 NY2d 170, 176; People v Duffy, 36 NY2d 258, 262-263, supra; People v Schwartzman, 24 NY2d 241, 244, supra; People v Sorge, 301 NY 198, 202; La Beau v People, 34 NY 223, 230).

The difficulty with the Trial Judge’s determination here, however, is that, from the record before us, its language being accorded its ordinary meaning, we are compelled to conclude that, in denying defendant’s application, the court failed to consider both of the available alternatives (cf. People v Caviness, 38 NY2d 227, 233). To the contrary, the Judge’s words suggest that he took into account only "the defendant’s prior propensities for committing violent acts”.

Nor may the error be treated as harmless. That an altercation took place is not disputed; both the defendant and the victim were hospitalized and arrested. The only serious issue was justification. The defendant was his only eyewitness. Arrayed against that testimony were only the victim and his wife. Under these circumstances, it is impossible to say whether the Trial Judge, had he weighed all the considerations we have articulated, would not have limited the cross-examination as to prior criminal acts and whether, if he had done so, the scales would have been tipped for instead of against the defendant (cf. People v Dickman, 42 NY2d 294, supra; People v Perez, 36 NY2d 848).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Gabrielli, J. (dissenting).

I agree with the majority that the trial court erred in the standard used in deciding to allow the defendant to be cross-examined with respect to his prior convictions (see People v Sandoval, 34 NY2d 371, 375). Nonetheless, I would affirm the order appealed from on the ground that this nonconstitutional error was harmless under the facts of this case.

The test for determining whether a particular nonconstitutional error may be considered harmless in a given case is twofold: first, there must be overwhelming evidence of guilt; and, second, the court must be able to find that there does not exist a significant probability that the defendant would have been acquitted absent the error (People v Crimmins, 36 NY2d 230, 241-242). The case before us certainly falls within the bounds of this test. Understandably, the defendant has not challenged the sufficiency of the evidence against him, as indeed would be an impossible task. Without even the evidence produced by the prosecution, there is an abundance of evidence of guilt from the testimony of the defendant himself.

Defendant candidly admitted the act charged, and based his defense on a claim of justification. According to defendant’s testimony, he and Alexander Woods began their quarrel over the ownership of a bicycle in defendant’s apartment. Woods then took the bicycle and returned to his own home. Defendant followed him and entered the Woods’ dwelling where, according to defendant, Woods punched him. Defendant immediately drew his knife and stabbed Woods, leading to an escalation of the altercation including three serious stab wounds inflicted on Woods. The testimony of Woods and his wife clearly demonstrated that the defendant was the aggressor, but need not here concern us, in view of defendant’s own testimony.

Even accepting completely the defendant’s version of the incident, it is abundantly clear that the defendant’s admitted use of deadly physical force cannot be characterized as justifiable under any view of the facts (see Penal Law, § 35.15). Defendant admits that it was he who first drew a weapon and began to stab Woods. This assault upon an apparently weaponless victim took place in the victim’s own home, in response to at most a few curses and a single punch. It appears clear that under these circumstances the defendant’s response was so unreasonably out of proportion to the attack as to negate any claim of justification, as a matter of law. The defendant has completely and effectively defeated his claimed justification by his own testimony.

In view of the overwhelming evidence of guilt, and the absence of any substantial probability that the error influenced the jury’s verdict in light of the defendant’s own inculpatory testimony, I would hold the error harmless (see People v Cook, 42 NY2d 204, 208-209; People v Perez, 36 NY2d 848), and would affirm the order appealed from.

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

Order reversed, etc.


author: Chief Judge Breitel.

text:
    In the Matter of Susanne Nehra, Appellant, v Rudolf Uhlar, Respondent.
    Argued November 9, 1977;
    decided December 15, 1977

      POINTS OF COUNSEL

      Bruno Colapietro for appellant.
    Where the Family Court, after a full hearing, has made a determination that in the best interests of the children, and because of extraordinary circumstances, custody of said children should be with the mother, it was an error for the court below to reverse, especially without remanding for new hearings. (Halvey v Halvey, 330 US 610; May v Anderson, 345 US 528; Matter of Berlin v Berlin, 21 NY2d 371, 393 US 840; Finlay v Finlay, 240 NY 429; Matter of Bennett v Jeffreys, 40 NY2d 543; People ex rel. "HH” v "HH” 49 AD2d 130; Matter of Lincoln v Lincoln, 24 NY2d 270; Matter of JJ v JJ, 50 AD2d 959.)

      Rudolf Uhlar, pro se, and William S. Friedlander for Rudolf Uhlar, respondent.
    I. The decision of the trial court in this matter is subject to review. (Finlay v Finlay, 240 NY 429; Matter of Bachman v Mejias, 1 NY2d 575; People ex rel. Portnoy v Strasser, 303 NY 539; Bunim v Bunim, 298 NY 391.) II. During the time in which respondent had custody of the children there was no change of circumstances on which to base a modification of the existing Michigan custody provisions. (Lester v Lester, 178 App Div 205, 222 NY 546; Matter

      of Lang v Lang, 9 AD2d 401, 7 NY2d 1029; Matter of Hahn v Falce, 56 Misc 2d 427; Matter of Wout v Wout, 32 AD2d 709; Dintruff v McGreevy, 42 AD2d 809, 34 NY2d 887.) III. The best interests of the children are served by upholding the judgment of the Michigan trial court which based its decision on the children’s best interests, particularly when the court below determined that the subsequent trial in New York showed no change in circumstance to affect that original decision. IV. The trial court erred in refusing to admit into evidence the prior transcripts of the Michigan divorce and custody proceedings. (Fleury v Edwards, 14 NY2d 334.) V. The court below was correct in holding that "the transformations which have occurred result almost entirely from the action of the petitioner in disobeying the Michigan order.” VI. It was error for the New York court not to recognize the Michigan custody award especially where both parties are found to be fit and petitioner has unclean hands. (Matter of Feldman v Feldman, 45 AD2d 320.) VII. The judgment of the Family Court is supported by neither the evidence nor proper findings of fact and the court below did not err in reversing the decision of said court. (Davin v Isman, 228 NY 1; Mason v Lory Dress Co., 277 App Div 660, Sager v Sager, 21 AD2d 183; Conklin v State of New York, 22 AD2d 481; Matter of Harris v Doley, 22 AD2d 769; Matter of Atkins v Atkins, 28 AD2d 1098; Matter of Thaler v Thaler, 29 AD2d 688.)
   OPINION OF THE COURT

Chief Judge Breitel.

Petitioner Nehra, the mother, seeks custody of her two children, now aged 11 and 9. Respondent Uhlar, the father, opposes the petition, relying in part on a prior Michigan judgment granting him a divorce and awarding him custody of the children. Family Court granted the petition, but a divided Appellate Division reversed and awarded custody to the father. The mother appeals.

There is litigation over the custody of the hapless children because their mother on a visit in Michigan abducted the children and succeeded in hiding them with her for more than nine months in New York State. She and the children and her new husband now live in New Jersey. The father still resides in Michigan. A separate litigation was brought in New Jersey while the New York proceeding was pending. The New Jersey court has deferred to the courts of this State.

It is undisputed that the best interest of the children must govern in the adjudication of custody. Certainly on no view may their interests be ignored. The issue that remains is whether those interests require that the children be left with their mother, who has apparently provided them with a good enough home for over four and a half years, despite the Michigan judgment giving custody to the father, and even though the mother obtained possession of the children by abduction and for more than nine months prevented the father from finding or seeing the children.

The order of the Appellate Division should be affirmed.

Although returning the children to their father will provide yet another disruption in the young lives of these unfortunate children, the evidence indicates, and the trial court found, that he can also provide, as he had before, a good enough home for them. And, in the long run, refusal to condone abduction of children will provide better stability for the Uhlar children, who would otherwise remain subject to the exercise of lawless self-help by either of their embattled parents.

The parties, then both residents of Michigan, were married in 1964. They both hold advanced graduate university degrees. They had two children, Sandrae, born in 1966, and Marke, born in 1968, before their separation in 1970. The mother brought a divorce action in Michigan in January, 1970, and retained custody of the children in the marital home while the divorce action was pending. On March 3, 1972, after trial in the action for divorce, the father was awarded custody, because of the mother’s misconduct and unfitness in the care of the children. The mother was granted visitation rights. The father was given possession of the marital home. Nine months later, on December 26, 1972, the father remarried. The new Mrs. Uhlar, and her young daughter by her former marriage, moved into the Uhlar home. On February 12, 1973, in Connecticut, the mother, too, was remarried, to Gerald Nehra, whose former marriage had also ended in divorce.

In the application for the marriage license the mother gave her occupation as that of attorney and stated that she had never been married. Five days after her remarriage, during a Michigan visitation period, the mother absconded with the children and returned to her new home in New York. Efforts were made to conceal the whereabouts of the children, including listing the Nehra telephone number under an alias. Despite an extensive search, not until December 5, 1973, more than nine months later, did the father locate his children. Even then, he was denied the opportunity to see them, and, on one occasion, even the chance to talk with them on the telephone at Christmas time.

For a year after the father discovered his children, he was not permitted by the mother to have them visit him in Michigan. And even when the father came to visit the children in New York, which he did eight times in the first year after their discovery, he was only permitted to see them in the presence of their mother or her second husband. The children’s paternal grandfather, the father’s second wife, and his stepdaughter, were denied access to the children altogether. When the father was finally permitted, in December, 1974, to take the children to Michigan for a visit, he was required under New York court order to post $2,500 bond. Each subsequent visit with the father in Michigan has also required posting of a bond.

The mother brought this proceeding in Family Court to obtain legal custody on December 13, 1973, just eight days after the father discovered the children (Family Ct Act, § 651). On February 26, 1975, after a hearing, the mother was granted custody. On April 14, 1977, the Appellate Division reversed and awarded custody to the father.

The litigation has dragged on for over four years. The New York courts like so many "disinterested” Solomons must disentangle the web wrought by the mother, previously characterized by the Michigan court as selfish. Paradoxically, the mother who had defied the Michigan court brought both the divorce action in Michigan and the custody proceeding in New York.

While these proceedings were pending the Nehras moved to New Jersey, taking the Uhlar children with them. The removal was caused by the transfer in position of Mr. Nehra from New York State to New Jersey. A proceeding to validate the mother’s custody of the Uhlar children was started in New Jersey, but, as the briefs advise, the New Jersey court suspended proceedings and stated that it deferred to what the New York courts might hold in the present prior proceeding (compare Domestic Relations Law, § 75-g, eff Sept. 1, 1978). Consequently, there follows the paradox of Michigan children, now in New Jersey, having their care and custody determined in New York State where now neither of their parents nor they are situated, and where the outstanding custody judgment is that of Michigan where they have not resided for almost five years.

The New York courts having proper jurisdiction by the presence of the children in the State when the custody proceeding was begun, its jurisdiction continues (see Removal of Child From State as Defeating Jurisdiction to Award Custody, Ann., 171 ALR 1405, 1406-1407; Jurisdiction of Court to Award Custody of Child Domiciled in State But Physically Outside It, Ann., 9 ALR2d 434, 446-447; Domestic Relations Law, § 75-d, subd 1, par [a], eff Sept. 1, 1978). No useful purpose on behalf of the children would be served by abstaining from exercise of jurisdiction and thereby projecting another round of protracted and protracting litigation.

It appears from the record that either parent would provide the children with a materially comfortable and loving home. Currently, in the mother’s custody, the children seem to be well adapted and are doing well in school. They get along with their stepfather, Mr. Nehra, whose own children by his prior marriage live with their mother in Michigan. Testimony of a psychologist retained by the mother indicated that there was no reason to disrupt the children, and that a change would be "potentially” damaging.

At the same time, testimony of neighbors of the Uhlars in Michigan indicates that the children appeared quite happy before they were abducted. Although the mother contends the children were ill-clothed and poorly cared for while in their father’s custody, those allegations are controverted by testimony from the neighbors. In fact, their testimony indicates that the children may not have been properly treated while the mother had custody pending conclusion of the Michigan divorce proceedings. Moreover, the father and his second wife appear to be providing a good home for the new Mrs. Uhlar’s daughter, and for two children born since the father’s remarriage.

Paramount in child custody cases, of course, is the ultimate best interest of the child (Domestic Relations Law, § 70). That a change in custody may prove temporarily disruptive to the children is not determinative, for all changes in custody are disruptive. Given Mrs. Nehra’s hostility to her ex-husband, and her reluctance to allow even visitation with the father, it would be surprising indeed if the children were eager after their enforced separation from him to return to their father. The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children (see Dintruff v McGreevy, 34 NY2d 887, 888; Matter of Lincoln v Lincoln, 24 NY2d 270, 273).

As the court noted in the Dintruff case, "[t]here are periodic reorientations toward one or another parent, and this is especially true when young parents are involved and one or both remarries” (supra, p 888). In the Lincoln case, the court observed that "[a] child whose home is or has been torn apart is subjected to emotional stresses that may produce completely distorted images of its parents and its situation. Also its feelings may be transient indeed, and the reasons for its preferences may indicate that no weight should be given to the child’s choice” (supra, p 273).

The Michigan court awarded custody to the father based on findings that the mother’s conduct with several men in the house during the separation was dangerous to the welfare of the children. That judgment, like other custody decrees, is not entitled to full faith and credit in the courts of this State (see Matter of Berlin v Berlin, 21 NY2d 371, 376, cert den 393 US 840; Matter of Bachman v Mejias, 1 NY2d 575, 580). But, absent extraordinary changes in circumstance, the Michigan determination is entitled to great weight not only on grounds of comity but because of the great interest of the State of the children’s residence and domicile (see, e.g., People ex rel. "XX” v "ZZ”, 43 AD2d 196, 198). This is especially true since the children had always lived in Michigan until their mother lawlessly spirited them out of the jurisdiction (compare Matter of Berlin v Berlin, 21 NY2d 371, 374-377, supra, with Matter of Lang v Lang, 9 AD2d 401, 406-409, affd 7 NY2d 1029).

This court has recognized that if the best interests of all children are to be served, the abduction of children to avoid the effect of custody decrees must be deterred (Matter of Bennett v Jeffreys, 40 NY2d 543, 550). This principle has received statutory recognition with enactment of the new Uniform Child Custody Jurisdiction Act, which will not become effective in New York until September 1, 1978 (L 1977, ch 493; Domestic Relations Law, § 75-i, subd 2). The new statute provides: "Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody.” Both the statute and the case law, however, recognize properly that the apparent imperative to discourage abduction must, when necessary, be submerged to the paramount concern in all custody matters: the best interest of the child. Otherwise "[t]he dignity of the several courts would be preserved, but the welfare of the children would be destroyed” (Matter of Lang v Lang, 9 AD2d 401, 405, affd 7 NY2d 1029, supra).

In this case, however, the two concerns can be largely harmonized. The mother, it is true, since she has settled down in her new marriage, appears to have provided her children with a good home for over four and a half years. But the father, too, had provided the children with a good home, despite the hedging psychological testimony, that a change would be "potentially” damaging, given by the mother’s expert who never, apparently, interviewed the father. There is, moreover, no significant evidence that the children would suffer permanent damage were they returned to their father.

Of course, continual shifting of custody from one parent to another is to be avoided when possible (Dintruff v Mc-Greevy, 34 NY2d 887, 888, supra; Matter of Lang v Lang, 9 AD2d 401, 409, affd 7 NY2d 1029, supra). And, in this case, awarding custody to the father would entail another move for the children. But, in the long run, stability, perhaps even for the Uhlar children, will best be achieved by adhering to prior judicial custody determinations, absent, of course, extraordinary changes of circumstance. Their stability is surely undermined by the example of the mother’s direct action in violation of law, contempt of the courts, and humiliation of their father.

The mother’s custody of the children for the last four and a half years, without more, is not a change in circumstance sufficiently extraordinary to justify upsetting the determination of the Michigan court. If it were, a parent, having lost a custody dispute in another State, might believe that by abducting the children, secreting them in New York, and waiting for time to pass, the prior custody decree could be effectively nullified. Of course, were there no tolerable alternatives to awarding custody to the abducting parent, as, for example, if the other parent were not fit to raise the children, or could not provide a suitable home, or just too many years had passed, even the unlawful act might have to be ignored (see Matter of Bennett v Jeffreys, 40 NY2d 543, 550, supra; cf. Matter of Benitez v Llano, 39 NY2d 758, 759). In this case, the alternative, awarding custody to a father who is able and eager to provide a good home for his children, is the least difficult to accept. (For a penetrating analysis with copious collection of authorities considering the almost insuperably difficult problems engendered by child-snatching and conflicting jurisdictions in determining child custody see Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 Cal L Rev 978, esp pp 983, 1014.)

This case, like most child custody matters, involves a collision of principles as well as of intransigent would-be custodians of the hapless children, innocent subjects of a conflict they can never understand. The primary principle of the child’s best interest is never easily applied once the litigants themselves have succeeded in creating the disruption of shifting custody as has happened in this case. The courts can only repair, patch, and cover over, as best they can, the irreparable harm occasioned and reduce the harm to a minimum, if the minimum is discernible.

Priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement. Similarly qualified priority should also be accorded to the judgment of the court of greatest concern with the welfare of the children, that is, the court of domicile, residence, and legal dissolution of the sundered marriage. Denigrated in rank should be the consequences of child-snatching, flight from the courts of jurisdiction, and defiance of legal process and judgments. Denigrated in rank, to some degree, should also be the natural or manipulated "satisfaction” of young abducted children with the homes where they presently abide.

Applying these principles and considering the best interest of the children the father is entitled to custody because the Michigan court so decreed, because he is a fit parent, because the mother obtained the possession of the children by lawless self-help, because the transitory harm caused by disruption past and future was caused by the mother, and because there is insufficient showing that the harm to the children if they be returned to the father is any more irreparable than that caused by the mother in creating the situation in the first instance. The courts cannot assure the happiness and stability of these children; that only their parents could have done, and, hopefully, can still do.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.


author: Jones, J.

text:
    Sonmax, Inc., et al., Appellants, v City of New York, Respondent.
    Argued November 14, 1977;
    decided December 15, 1977

      POINTS OF COUNSEL

      Wynne B. Stern, Jr., and Charles Feit for appellants.
    I. The Court of Appeals has jurisdiction since appellants can take this appeal as a matter of right pursuant to CPLR 5601 (subd [b], par 2). (F. T. B. Realty Corp. v Goodman, 300 NY 140; Teeval Co. v Stern, 301 NY 346; Matter of Rudack v Valentine, 274 NY 615; Olive Coat Co. v City of New York, 283 NY 733; City of Amsterdam v Helsby, 37 NY2d 19.) II. Local Law 45 of the Laws of 1976 of the City of New York is unconstitutional because it is an improper exercise by a municipality of the taxing power which is vested exclusively in the State Legislature under section 1 of article III and section 1 of article XVI of the State Constitution. (Society of Plastics Ind. v City of New York, 68 Misc 2d 366; City of New York v Feit, 200 Misc 998.) III. Local Law 45 of the Laws of 1976 of the City of New York is unconstitutional since it is not consistent with laws enacted by the State Legislature as required by article IX (§ 2, subd [c], par [8]) of the State Constitution. (Seaman v Fedourich, 16 NY2d 94; Novak v Town of Poughkeepsie, 57 Misc 2d 927; Town of Clifton Park v C. P. Enterprises, 45 AD2d 96; Matter of Lo Bello v McLaughlin, 39 AD2d 404, 31 NY2d 782, 33 NY2d 755.) IV. Local Law 45 of the Laws of 1976 of the City of New York is unconstitutional because it violates the equal protection provision of section 11 of article I of the New York State Constitution and of the Constitution of the United States. (Matter of Chicago Rys. Co., 175 F2d 282, cert den sub nom. Illinois v Sullivan, 338 US 850; Quaker City Cab Co. v Pennsylvania, 277 US 389.)

      W. Bernard Richland, Corporation Counsel (Morris Einhorn and L. Kevin Sheridan of counsel), for respondent.
    Numerous departures in many cities from the optional tax collection provisions of article 11 of the Real Property Tax Law preclude its classification as a general law within home rule definitions thereof. If such variances from that statute’s four-year preforeclosure period of delinquency are nevertheless consistent with its general scheme, then the variance effected by Local Law 45 of 1976 is similarly consistent therewith. In any case, the special problem presented by rising delinquencies and threatening bankruptcy justified the local law. (Carodix Corp. v Comiskey, 265 App Div 450, 291 NY 737; Bareham v City of Rochester, 246 NY 140; Johnson v Etkin, 279 NY 1; Matter of Farrell v Board of Health of City of Oswego, 243 App Div 332; Matter of City of New York v Deyo, 158 App Div 319, 213 NY 706; People ex rel. Savory v Plunkett, 295 NY 180; Grimmer v Tenement House Dept, of City of N. Y, 204 NY 370; People v O’Brien, 38 NY 193; Hersee v Porter, 100 NY 403.)
   OPINION OF THE COURT

Jones, J.

The enactment by the City of New York of Local Law No. 45 of 1976—by the terms of which the period of time required to elapse before in rem tax foreclosure proceedings may be instituted was reduced from three years to one year— was not violative of any provision of our State Constitution.

In 1939 the State Legislature enacted the so-called Stagg Act, the State’s first in rem tax foreclosure procedure legislation (L 1939, ch 692). In effect the act, adding a new title 7-a to the Tax Law, created a detailed, optional in rem foreclosure procedure of which any tax district could elect to avail itself by appropriate resolution (§ 162). The City of New York never chose to adopt the provisions of the Stagg Act. Nor did it make any such election after the State’s in rem foreclosure procedure was subsequently amended in 1948 (L 1948, ch 250).

Rather, in 1948 in response to a home rule message the Legislature enacted a special act adding a new title D to chapter 17 of the city’s Administrative Code, thereby establishing a particularized in rem tax foreclosure procedure applicable only to New York City (L 1948, ch 411). The possibility of the Legislature’s enactment of foreclosure procedures for individual tax districts by means of such special laws was implicitly foreshadowed in the provisions of the Stagg Act (L 1939, ch 692, § 162, subds 1, 3). As might be anticipated the provisions of the city’s title D were similar although not precisely parallel to those of the State foreclosure procedure.

At the request of the city in 1970 the Legislature amended the provisions of title D, inter alia, by reducing the time period required before institution of in rem foreclosure proceedings from four to three years except with respect to abandoned properties, as to which the time period was one year, and with respect to one- and two-family homes, as to which the time period was four years (L 1970, ch 746, § 3).

In 1975, at the instance of the city, the Legislature again amended title D to fix the mandatory waiting period before institution of foreclosure proceedings at three years for all properties, deleting the separate provisions with respect to abandoned property and one- and two-family dwellings (L 1975, ch 823, § 1).

In 1976 when it was desired to make a further change in the waiting period to precede the institution of tax foreclosure proceedings, instead of seeking amendment of title D at the hands of the Legislature, the city chose to accomplish the desired amendment by its own adoption of Local Law No. 45 of 1976. It is this local law enactment reducing the waiting period to one year that is the target of petitioners’ constitutional challenge in the present declaratory judgment action.

Special Term granted the city’s motion for summary judgment and upheld the constitutionality of Local Law No. 45. Petitioners thereupon properly appealed directly to our court under CPLR 5601 (subd [b], par 2) on the premise that for the purposes of that section a local law is to be considered "a statutory provision of the state”. (F. T. B. Realty Corp. v Goodman, 300 NY 140, 144-145; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 58, pp 265-266.) We now express our agreement with the conclusion reached at Special Term.

All taxing power in the State of New York is vested in the Legislature pursuant to section 1 of article III and section 1 of article XVI of our State Constitution. The Legislature could, however, delegate authority to assess and collect taxes to a city, and petitioners do not challenge the addition of title D to the city’s Administrative Code by the Legislature’s special act in 1948.

Pursuant to article IX of the Constitution, the new article on local governments added by amendment approved by the electorate in 1963, every local government was granted "power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law * * * except to the extent that the legislature shall restrict the adoption of such a local law [relating to] [t]he levy, collection and administration of local taxes authorized by the legislature * * * consistent with laws enacted by the legislature.” (Art IX, § 2, subd [c], par [8].) Thereafter the Legislature in 1964 adopted the Municipal Home Rule Law (L 1963, ch 843). The provisions of this statute authorizing local legislation very largely track the constitutional terminology, except that the requirement that local laws relating to the levy and administration of local taxes authorized by the Legislature be consistent with laws enacted by the Legislature is imposed only on counties, towns and villages, not on cities (Municipal Home Rule Law, § 10, subd [1], par [ii], cl [a], subcl [8]).

The core of petitioners’ challenge to the constitutionality of Local Law No. 45 is that the successor of the Stagg Act-title 3 of article 11 of the Real Property Tax Law (L 1958, ch 959)—is a "general law” within the meaning of the parallel provisions of the Constitution and the Municipal Home Rule Law, and that the local law is inconsistent with such general law. There is no substance to this contention. Even if it be assumed for present purposes that the Stagg Act and present title 3 of article 11 of the Real Property Tax Law are "general laws” within the contemplation of the Constitution and the Municipal Home Rule Law, Local Law No. 45 is not inconsistent with title 3; on the contrary, the enactment of a special, localized in rem tax foreclosure procedure, whether its detailed provisions deviate from those of the State statute in little or greater degree, is entirely consistent with the design and pattern of the statute establising the State-wide foreclosure procedure. By express provision the State procedure is optional, rather than mandatory, i.e., local tax districts may elect to take advantage of its provisions but are not required to do so. Nothing in the statute forecloses the establishment of local in rem foreclosure procedures by the adoption of special acts. This was precisely the approach followed by the Legislature and the city in the enactment of chapter 411 of the Laws of 1948. Hence, rather than presenting an instance of inconsistency with the pertinent State statute, the in rem foreclosure procedure of the City of New York as amended by Local Law No. 45 is illustrative of an anticipated and planned consistency. Petitioners appear to have been diverted by the false assumption that lack of uniformity (i.e., the failure of the procedural details of the city’s title D precisely to parallel those of the optional State statute) is the same as inconsistency or contradiction. It is not.

Finally we note that, for the reasons stated by Mr. Justice Edward J. Greenfield at Special Term, Local Law No. 45 of 1976 as amended by Local Law No. 6 of 1977 does not deny petitioners their constitutional right to equal protection of the laws.

For the reasons stated the judgment of Supreme Court, New York County, to the extent of the appeal taken therefrom, should be affirmed, with costs.

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

Judgment affirmed.

       Although we are prepared to accept such an hypothesis for purposes of the disposition of the present appeal, we observe that the assumption is one of very questionable validity. It can be strongly argued that no law which is not mandatory State-wide but rather establishes only a local tax district option can be considered a "general law” at least with respect to a local tax district which has not elected to avail itself of the option offered.


text:
    Benjamin H. Freedman, Appellant, v Chemical Construction Corporation, Respondent, et al., Defendants.
    Argued November 11, 1977;
    decided December 15, 1977

      POINTS OF COUNSEL

      Gene Crescenzi for appellant.
    I. The court below disregarded the New York Civil Practice Law and Rules and the controlling decisions relating to summary judgment. (Louis Sherry Ice Cream Co. v Kroggel, 42 Misc 2d 21; Widger v Central School Dist. No. 1 of Towns of Ellicottville, Great Valley, East Otto, Franklinville, Humphrey & Mansfield, 20 AD2d 296; Di Sabato v Soffes, 9 AD2d 297; Weiner v Fortunoff of Westbury, 69 Misc 2d 171; National Labor Relations Bd. v Smith Inds.,
      403 F2d 889; Werfel v Zivnostenska Banka, 287 NY 91, Puffer v City of Binghamton, 59 Misc 2d 856; Jones v County of Herkimer, 51 Misc 2d 130.) II. The court below erred in its conclusion regarding the sufficiency of evidence that the oral agreement sued upon provided for the applicability of Saudi Arabian law. (Intercontinental Planning v Daystrom, Inc., 24 NY2d 372.) III. The court below disregarded and overlooked all the points of fact and the important controlling decisions submitted by plaintiff-appellant to show that the Statute of Frauds (General Obligations Law, § 5-701, subds 1, 10) does not apply to the case at bar.

      Donald M. Crook and Fredrick E. Sherman for respondent.
    The court below properly granted summary judgment since there are no material issues of fact concerning plaintiff’s claim to a finder’s fee based upon an alleged oral contract and the claim is barred by the New York Statute of Frauds. (Nakhleh v Chemical Constr. Corp., 359 F Supp 357; Levine v Personnel Inst., 2 AD2d 964; Mitler v Friedeberg, 32 Misc 2d 78; Intercontinental Planning v Daystrom, Inc., 24 NY2d 372; Sorge v Nott, 34 Misc 2d 545, 22 AD2d 768; Haag v Barnes, 9 NY2d 554; Rubin v Irving Trust Co., 305 NY 288; Gonzalez y Barredo v Schenck, 287 F Supp 505; Southern Int. Sales Co. v Potter & Brumfield Div. of AMF, 410 F Supp 1339; Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220, 423 US 866.)
   OPINION OF THE COURT

Chief Judge Breitel.

In an action on an alleged oral agreement to pay plaintiff a 5% fee for his participation in the obtaining by defendant of a $41 million construction contract, defendant moves under CPLR 3212 for summary judgment based on the Statute of Frauds (General Obligations Law, § 5-701, subds 1, 10). Plaintiff’s claim arises out of his asserted role, varyingly described, in procuring for defendant a contract to build a chemical plant in Saudi Arabia. Supreme Court denied the motion; a unanimous Appellate Division reversed; and plaintiff appeals.

There are two issues. The first is whether a motion for summary judgment based on the New York Statute of Frauds may be defeated by plaintiff’s general averment, without more, that the parties agreed to be governed by the law of Saudi Arabia. Assuming, however, that no such agreement is properly asserted, and that New York law applies, the second issue is whether the fee agreement for obtaining the construction contract is within the Statute of Frauds (General Obligations Law, § 5-701). In particular, at issue is whether, within the meaning of subdivision 1 of the cited statute, the agreement "[b]y its terms [was] not to be performed within one year”, and, whether within the meaning of subdivision 10, relating to business brokers and finders, plaintiff’s alleged activities as an intermediary amounted to negotiation of a "business opportunity”.

The order of the Appellate Division should be affirmed, and the complaint stand dismissed. Having failed to present any evidentiary facts that the parties manifested an intention that Saudi law would govern, plaintiff raises no triable issue of fact. Applying the New York Statute of Frauds, the suit is barred (General Obligations Law, § 5-701). Subdivision 1 of the statute does not bar the claim because the alleged agreement was "By its terms”, even if not as a practical matter, performable within a year. Since, however, arranging, directly or indirectly, for defendant to negotiate with Saudi officials and to effect the Saudi contract is "negotiating * * * a business opportunity” within the meaning of subdivision 10, the claim is barred.

Some time in 1961 plaintiff, Benjamin H. Freedman, met in New York City with David Fulton, an officer of defendant Chemical Construction Corporation. Both Freedman and the corporation do business in New York. Freedman, a self-described retired industrialist, allegedly arranged the meeting to interest Chemical in constructing in Saudi Arabia a plant that would convert flared off natural gas into fertilizer. According to Freedman, after a series of meetings with Fulton in New York, Freedman and his Syrian associate, Issa Nakhleh, negotiated with Saudi officials at Chemical’s request. Freedman contends that as a result of these negotiations Chemical was removed from the Arab blacklist and, in December, 1966, awarded the sought-after contract. The plant is said to have been completed in 1970. Intraoffice memoranda prepared by Fulton and correspondence between Chemical and Saudi officials included in the record supply at least some evidence of the alleged events.

At the heart of the case is Freedman’s assertion, denied by Chemical, that upon completion of the proposed plant he was to be paid a 5% fee, or $2.05 million, for his services. No one disputes that there was no writing of any kind to evidence the agreement.

Precisely what Freedman did on Chemical’s behalf, other than approaching Chemical and interesting Nakhleh in the endeavor, is unclear. Freedman admitted in his examination before trial that he did not visit Saudi Arabia until 1973, at which point the plant was already operating. Although there is a general statement in his opposing affidavit that he had written letters to Saudi Arabian officials, and that he had forwarded Chemical’s proposal to a member of the Saudi royal family, his testimony at the examination before trial is contradictory.. The complaint supplies no additional information. Any negotiating in Saudi Arabia was apparently done by Nakhleh, a Syrian lawyer who traveled in the Middle East.

This action followed Chemical’s refusal to honor the claimed fee agreement. Chemical, raising the Statute of Frauds, moved for summary judgment. Freedman, seeking to avoid the statutory bar, alleges that the purported oral agreement included an understanding that Saudi law would apply. Saudi law, presumably, has no equivalent writing requirement.

It is elementary that conclusory assertions will not defeat summary judgment. The opponent of a properly made summary judgment motion must present evidentiary facts sufficient to raise a triable issue of fact (e.g., Shaw v Time-Life Records, 38 NY2d 201, 207; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290; 4 Weinstein-KornMiller, NY Civ Prac, par 3212.12, p 32-173).

Supported by nothing in Freedman’s affidavit in opposition to summary judgment, or in his examination before trial, the contention that the parties had intended, let alone agreed, that Saudi law would govern does not create a triable issue. The one vague reference to Saudi law in Freedman’s examination before trial related only to a purported agreement between Nakhleh and Chemical, an agreement with which Freedman, again in the examination before trial, emphatically disavowed any "connection”. For the same reason, it is of little persuasive value that in a separate action for another 5% fee brought by Nakhleh in Federal court a triable issue was held to exist (Nakhleh v Chemical Constr. Corp., 359 F Supp 357, 359). Summary judgment is thus a proper remedy, assuming, of course, that the New York Statute of Frauds applies.

Turning, then, to section 5-701 of the General Obligations Law, the relevant Statute of Frauds, Chemical relies on subdivisions 1 and 10 to bar the claim.

Subdivision 1 renders unenforceable an oral agreement which "[b]y its terms is not to be performed within one year from the making thereof’. True, as Chemical asserts, it was unlikely that Freedman’s efforts to obtain the construction contract and Chemical’s payment, due only upon completion of the plant, would occur within one year. In fact, Freedman admits it took over three years for his own performance and another six until the plant was built. It matters not, however, that it was unlikely or improbable that a $41 million plant would be constructed within one year. The critical test, instead, is whether "by its terms” the agreement is not to be performed within a year. (North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 175-176; Nat Nal Serv. Stas, v Wolf, 304 NY 332, 335.) Since neither party has contended that the alleged agreement contained any provision which directly or indirectly regulated the time for performance, the agreement is not within the bar of subdivision 1.

A writing is also required, under subdivision 10 of the statute, if the agreement "[i]s a contract to pay compensation for services rendered in negotiating a loan, or in negotiating the purchase, sale, exchange, renting or leasing of any real estate or interest therein, or of a business opportunity, business, its good will, inventory, fixtures or an interest therein, including a majority of the voting stock interest in a corporation and including the creating of a partnership interest. 'Negotiating’ includes procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction. This provision shall apply to a contract implied in fact or in law to pay reasonable compensation but shall not apply to a contract to pay compensation to an auctioneer, an attorney at law, or a duly licensed real estate broker or real estate salesman.” The statute, which has had its difficulties in interpretation, applies to various kinds of intermediaries who perform limited services in the consummation of certain kinds of commercial transactions. The historical controversy whether it applied to finders as distinguished from brokers is settled to include both (Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 378; Minichiello v Royal Business Funds Corp., 18 NY2d 521, 524-527, cert den 389 US 820). Freedman does not argue otherwise. What he does contend, however, is that the kind of services he rendered under the agreement did not amount to negotiation of a "business opportunity”. In effect, he would sharply limit the scope of the term "business opportunity” and exclude enterprises which were hardly intended to be excluded.

Until 1949, there was no requirement that agreements with business brokers be in writing. To protect principals from "unfounded and multiple claims for commissions”, and in response to the substantial number of cases involving sales of businesses and business opportunities, the predecessor to subdivision 10 of section 5-701 was enacted (L 1949, ch 203; 1949 Report of NY Law Rev Comm, p 615).

Since enactment of the statute, however, the scope of the term "business opportunity” has been differentially applied (see, e.g., Lounsbury v Bethlehem Steel Corp., 53 Misc 2d 151, 152-156 [does not include contract to sell floating dry dock]; National Performing Arts v Guettel, 46 Misc 2d 411, 413-414 [includes contract to sell or lease packaged productions to theatre owners]; Sorge v Nott, 22 AD2d 768, revg 34 Misc 2d 545 [includes contract to procure purchaser of working interest in oil wells]; 1964 Report of NY Law Rev Comm, p 178, n 26). The scope is still to be fully resolved.

Too broad an interpretation would extend the writing requirement to unintended situations. For instance, the typical stockbroker’s dealings might be covered. (See Lounsbury v Bethlehem Steel Corp., supra, p 153; see, generally, 1949 Report of NY Law Rev Comm, pp 634-636.)

Too restrictive an interpretation would defeat the purpose of the legislation. Because in some circumstances the important services of an intermediary may be accomplished in the course of a few and even momentary conversations, false or exaggerated claims can be asserted easily and disproved only with difficulty. It is this type of situation to which the statute is addressed. (See Minichiello v Royal Business Funds Corp., 18 NY2d 521, 527, supra.) Most important, too restrictive an interpretation would ignore the many situations which in common parlance are described as "business opportunities.”

For this case it is not necessary nor would it be proper to attempt to resolve the ultimate scope of the term "business opportunity”. Freedman’s purported role was, concededly, limited and transitory. He was not involved, nor was he supposed to be, in negotiation of the construction contract terms. He was to use his "connections”, his "ability”, and his "knowl-* edge” to arrange for Chemical to meet "appropriate persons” and somehow to procure for it the opportunity to build the multimillion dollar plant. Yet, as observed earlier, it is just this kind of situation to which the statute is addressed.

The term, as used in the statute, may not cover every situation which in common parlance might be called a "business opportunity”. But where, as in the instant case, the intermediary’s activity is so evidently that of providing "know-how” or "know-who”, in bringing about between principals an enterprise of some complexity or an acquisition of a significant interest in an enterprise, the statute is entitled to be read both in accordance with its plain meaning, its evident purpose, and to accomplish the prevention of the mischief for which it was designed.

The alleged agreement, therefore, was for services rendered in negotiating a "business opportunity”, and, in the absence of a writing, so easily obtained in a proper case, is unenforceable. Defendant is entitled to summary judgment.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the complaint stand dismissed.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs.

       One caveat, however, is in order. Even if the parties had agreed that Saudi law would govern the purported oral agreement, that the New York Statute of Frauds is thereby avoided does not necessarily follow. As a general matter, the parties’ manifested intentions to have an agreement governed by the law of a particular jurisdiction are honored (see, e.g., Companía de Inversiones Internacionales v Industrial Mtge. Bank of Finland, 269 NY 22, 26; Restatement, Conflict of Laws 2d, § 187). It is as though the law of the selected jurisdiction were incorporated into the agreement by reference (see Restatement, Conflict of Laws 2d, § 187, Comment c). But where, as with the Statute of Frauds, the issue arguably cannot be controlled by voluntary agreement, there is some question whether, in the absence of a reasonable basis for choosing the law of the jurisdiction designated by the parties, their choice of law will be honored (see Restatement, Conflict of Laws 2d, § 187, subd [2], par [a]; Comment f; cf. A. S. Rampell, Inc. v Hyster Co., 3 NY2d 369, 382-383; Nakhleh v Chemical Constr. Corp., 359 F Supp 357, 359-360, supra; see, generally, Statute of Frauds and Conflicts of Law, Ann., 47 ALR3d 137).