author: Kaye, J.

text:
    Dennis Rossi, Appellant, v Blue Cross and Blue Shield of Greater New York, Respondent.
    Argued May 2, 1989;
    decided June 6, 1989

      POINTS OF COUNSEL

      Steven Cohen and Arnold V. Goldstein for appellant.
    I. The May 2, 1985 memo is not privileged and is discoverable. (Koump v Smith, 25 NY2d 287; Graf v Aldrich, 94 AD2d 823; Zimmerman v Nassau Hosp., 76 AD2d 921; People v Belge, 59 AD2d 307; Allied Artists Picture Corp. v Raab Prods., 38 AD2d 537; Matter of Jacqueline F., 47 NY2d 215; Hoffman v Ro-San Manor, 73 AD2d 207.) II. The document was prepared in the ordinary course of business and is multipurpose. (Chemical Bank v National Union Fire Ins. Co., 70 AD2d 837; Crowe v Lederle Labs., 125 AD2d 875; Mold Maintenance Serv. v General Acc. Fire & Life Assur. Corp., 56 AD2d 134; Westhampton Adult Home v National Union Fire Ins. Co., 105 AD2d 627; New England Seafoods v Travelers Cos., 84 AD2d 676; E. B. Metal Indus. v State of New York, 138 Misc 2d 698; Crow-Crimmins-Wolff & Munier v County of Westchester, 123 AD2d 813; Hawley v Travelers Indem. Co., 90 AD2d 684; Millen Indus. v American Mut. Liab. Ins. Co., 37 AD2d 817; Brandman v Cross & Brown Co., 125 Misc 2d 185.) III. A document is discoverable when there is a strong public policy. (Matter of Priest v Hennessy, 51 NY2d 62; Matter of Jacqueline F., 47 NY2d 215; Upjohn Co. v United States, 449 US 383.)

      Kevin B. Poliak and John V. Fabiani, Jr., for respondent.
    I. The May 2, 1985 memo is a privileged communication between attorney and client. (Matter of Vanderbilt [Rosner— Hickey], 57 NY2d 66; Matter of Priest v Hennessy, 51 NY2d 62; Matter of Grand Jury Subpoena [Bekins Record Stor. Co.] 62 NY2d 324; Allied Artists Picture Corp. v Raab Prods., 38 AD2d 537; Rockwood Natl. Corp. v Peat, Marwick, Mitchell & Co., 60 AD2d 837; Ford Motor Co. v Burke Co., 59 Misc 2d 543; O’Keeffe v Bry, 456 F Supp 822; Matter of Jacqueline F., 47 NY2d 215; Crowe v Lederle Labs., 125 AD2d 875.) II. The May 2, 1985 memo is the work product of an attorney. (Kenford Co. v County of Erie, 55 AD2d 466; Victory Mkts. v Purer, 51 AD2d 895; Hoffman v Ro-San Manor, 73 AD2d 207; Warren v New York City Tr. Auth., 34 AD2d 749; Wickham v Socony Mobil Oil Co., 45 Misc 2d 311.) III. The May 2, 1985 memo is material prepared for litigation. (Crowe v Lederle Labs., 125 AD2d 875.)
   OPINION OF THE COURT

Kaye, J.

An internal memorandum from a corporate staff attorney to a corporate officer communicating advice regarding a company form that was the subject of an imminent defamation action is protected from disclosure in that action by the attorney-client privilege (CPLR 4503 [a]).

As alleged in the complaint, in April 1984, plaintiff, a physician specializing in radiology, opened a facility for medical diagnostic testing through the use of a Diasonics NMR (nuclear magnetic resonance) Imaging Scanner. Over the next year and a half, plaintiff performed NMR scans on numerous patients, among them subscribers of defendant health insurer, Blue Cross and Blue Shield. Defendant allegedly rejected more than 2,000 claims by plaintiff’s patients seeking reimbursement for the scans. In rejecting claims, defendant sent its subscribers a form containing the following statement: "Your contract does not cover procedures which are experimental or whose effectiveness is not generally recognized by an appropriate governmental agency.” Apparently, the procedure had in fact been approved by the Federal Food and Drug Administration, National Center for Devices and Radiological Health.

After several times notifying defendant of the FDA approval and unsuccessfully seeking correction of the statement, on May 2, 1985, plaintiff drew up a summons and complaint for defamation. In the complaint, plaintiff pleaded that hundreds of his patients who had received defendant’s rejection notice condemned him for using an unapproved, experimental nuclear procedure that could harm them physically. Plaintiff alleged that Blue Cross knew that the language used in rejecting his patients’ claims was false and fraudulent, but that it nonetheless persisted in sending the statement to his patients, gravely damaging his practice and reputation.

The focus of this appeal is an internal Blue Cross memorandum dated May 2, 1985 — the date of the summons and complaint — from Edward Blaney, Jr., to Dr. Mordecai Berkun. Blaney was a lawyer employed by Blue Cross on its counsel’s staff, not a company officer; Berkun was an officer of Blue Cross and its Medical Director. Copies of the memorandum were indicated for C. Ammarati, Blue Cross Vice-President of Professional Affairs (Berkun’s staff superior), and J. L. Shurtleff, Blue Cross Vice-President and General Counsel (Blaney’s staff superior).

In response to discovery requests, defendant identified the Blaney memorandum but withheld production on grounds of attorney-client privilege, work product and material prepared for litigation. While the document has not been made public, defendant has described its contents, paragraph by paragraph, as follows. According to defendant, the first paragraph refers to conversations between Blaney and plaintiff’s attorney regarding a possible defamation suit based on the rejection form; the second concerns conversations between Blaney and the FDA regarding plaintiff’s NMR Imaging System; the third paragraph sets forth Blaney’s understanding of Blue Cross’ NMR reimbursement policy and his understanding of new language that was going to be used to deny NMR claims; and the final paragraph expresses Blaney’s opinion and advice regarding the rejection language of the form, and requesting comments from the Medical Director.

On plaintiff’s motion for production of the memorandum in its entirety, Supreme Court reviewed the document in camera and directed that it be turned over to plaintiff. A divided Appellate Division reversed, concluding that the memorandum was a privileged attorney-client communication as well as work product, and it granted plaintiff leave to appeal to this court on a certified question. The dissenters would have ordered production because the thrust of the memorandum "concerns the quality of a business judgment and does not in any significant way involve a lawyer’s learning and professional skills reflecting legal research or theory.” (140 AD2d 198, 201.) We now affirm on the ground that the memorandum is privileged, and therefore do not reach the alternative arguments advanced by defendant.

To begin with points of agreement, no one questions that corporations, as other clients, may avail themselves of the attorney-client privilege for confidential communications with attorneys relating to their legal matters (see, Upjohn Co. v United States, 449 US 383; 5 Weinstein-Korn-Miller, NY Civ Prac If 4503.06; McCormick, Evidence § 87, at 206-209 [Cleary 3d ed 1984]). A corporation’s communications with counsel, no less than the communications of other clients with counsel, are encompassed within the legislative purposes of CPLR 4503, which include fostering uninhibited dialogue between lawyers and clients in their professional engagements, thereby ultimately promoting the administration of justice (see, Matter of Vanderbilt [Rosner— Hickey], 57 NY2d 66, 76; Matter of Priest v Hennessy, 51 NY2d 62, 67-68; Matter of Jacqueline F., 47 NY2d 215, 218-219; Hurlburt v Hurlburt, 128 NY 420, 424). The privilege applies to communications with attorneys, whether corporate staff counsel or outside counsel (see, e.g., Allied Artists Picture Corp. v Raab Prods., 38 AD2d 537). Finally, while the cases largely concern communications by clients to their attorneys, CPLR 4503 speaks of communications "between the attorney * * * and the client” (CPLR 4503 [a]), and the privilege thus plainly extends as well to the attorney’s own communications to the client (Matter of Creekmore, 1 NY2d 284, 296; Richardson, Evidence § 415, at 410 [Prince 10th ed]; 5 Weinstein-Korn-Miller, NY Civ Prac If 4503.11a).

Beyond these points of agreement, the attorney-corporate client privilege has raised nettlesome questions — particularly as to communications from corporate agents to counsel (see, e.g., Waldman, Beyond Upjohn: The Attorney-Client Privilege in the Corporate Context, 28 Wm & Mary L Rev 473 [1987]; Saltzburg, Corporate and Related Attorney-Client Privilege Claims: A Suggested Approach, 12 Hofstra L Rev 279 [1984]; Sexton, A Post-Upjohn Consideration of the Corporate Attorney-Client Privilege, 57 NYU L Rev 443 [1982]). But even where the communication in issue is — as here — from the staff attorney to the corporate agent, difficult questions may arise.

For example, unlike the situation where a client individually engages a lawyer in a particular matter, staff attorneys may serve as company officers, with mixed business-legal responsibility; whether or not officers, their day-to-day involvement in their employers’ affairs may blur the line between legal and nonlegal communications; and their advice may originate not in response to the client’s consultation about a particular problem but with them, as part of an ongoing, permanent relationship with the organization. In that the privilege obstructs the truth-finding process and its scope is limited to that which is necessary to achieve its purpose (Matter of Priest v Hennessy, supra, at 68; Matter of Jacqueline F., supra, at 219), the need to apply it cautiously and narrowly is heightened in the case of corporate staff counsel, lest the mere participation of an attorney be used to seal off disclosure (see, Simon, The Attorney-Client Privilege as Applied to Corporations, 65 Yale LJ 953, 970-973 [1956]; 5 Weinstein-KornMiller, NY Civ Frac fl 4503.06).

Obviously, not every communication from staff counsel to the corporate client is privileged. It is equally apparent that no ready test exists for distinguishing between protected legal communications and unprotected business or personal communications; the inquiry is necessarily fact-specific (8 Wigmore, Evidence § 2296, at 566-567 [McNaughton rev ed 1961]). However, certain guideposts to reaching this determination may be identified by looking to the particular communication at issue in this case. Here, as the Appellate Division noted, the "memorandum is clearly an internal, confidential document. Nothing indicates that anyone outside the defendant company had access to it.” (140 AD2d, at 199.) Moreover, there is no dispute as to the author’s status or role. Blaney functioned as a lawyer, and solely as a lawyer, for defendant client; he had no other responsibility within the organization. His communication to his client was plainly made in the role of attorney.

For the privilege to apply when communications are made from client to attorney, they "must be made for the purpose of obtaining legal advice and directed to an attorney who has been consulted for that purpose.” (Matter of Grand Jury Subpoena [Bekins Record Stor. Co.]., 62 NY2d 324, 329.) By analogy, for the privilege to apply when communications are made from attorney to client — whether or not in response to a particular request — they must be made for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship (see, Matter of Creekmore, supra, at 296). Here that test is met.

The subject of the memorandum was plaintiff’s imminent defamation suit based on the language of defendant’s rejection form. The memorandum, written the very day plaintiff’s summons and complaint were drafted, began by referring to Blaney’s conversations with plaintiff’s counsel and went on to express the lawyer’s views regarding the rejection language of the form. Communications from an attorney to a client dealing with the substance of imminent litigation generally will fall into the area of legal rather than business or personal matters (see, Britton v Lorenz, 45 NY 51, 57; Whiting v Barney, 30 NY 330, 334). That the memorandum does not reflect legal research is not determinative, where the communication concerns legal rights and obligations and where it evidences other professional skills such as lawyer’s judgment and recommended legal strategies (see, 8 Wigmore, Evidence § 2296, at 567 [McNaughton rev ed 1961]).

So long as the communication is primarily or predominantly of a legal character, the privilege is not lost merely by reason of the fact that it also refers to certain nonlegal matters (id.; see also, Gergacz, Attorney-Corporate Client Privilege, at 3-30 [1987]). Indeed, the nature of a lawyer’s role is such that legal advice may often include reference to other relevant considerations (see, United States v United Shoe Mach. Corp., 89 F Supp 357, 359). Here, it is plain from the content and context of the communication that it was for the purpose of facilitating the lawyer’s rendition of legal advice to his client. While we are mindful of the concern that mere participation of staff counsel not be used to seal off discovery of corporate communications, here "[n]othing suggests that this is a situation where a document was passed on to a defendant’s attorney in order to avoid its disclosure.” (140 AD2d, at 199 [citing Radiant Burners v American Gas Assn., 320 F2d 314, cert denied 375 US 929].) It appears that Blaney was exercising a lawyer’s traditional function in counseling his client regarding conduct that had already brought it to the brink of litigation.

Plaintiff finally asserts that even if the memorandum is privileged, the privilege should give way to "strong public policy considerations,” citing Matter of Priest v Hennessy (51 NY2d 62, supra) and Matter of Jacqueline F. (47 NY2d 215, supra). The "strong public policy considerations” are defendant’s alleged massive fraud and Blaney’s death. Neither the nature of the alleged wrong nor the attorney’s unavailability rises to the level of subverting the lawful and honest purposes for which the privilege exists; indeed, were Blaney alive, the communication still would be shielded from discovery. Protecting this memorandum from disclosure in plaintiff’s defamation action is, in the circumstances, consistent with the lawful and honest aims of the privilege to foster uninhibited communication between lawyer and client in the fulfillment of the professional relationship.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

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

Order affirmed, etc.


source: Caselaw Access Project

author: Chief Judge Wachtler. Alexander, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Daniel Foster and Kathleen Paolo, Appellants.
    Argued March 21, 1989;
    decided May 11, 1989

      POINTS OF COUNSEL

      Daniel Foster and Kathleen Paolo, appellants pro se.

    I. As a matter of law, the prosecution failed to prove that appellants did not have the authority of law to take the money in question. (People v Ricchiuti, 93 AD2d 842; Fischer v Langbein, 103 NY 84; McMullen v Arnone, 79 AD2d 496; Community State Bank v Haakonson, 94 AD2d 838; Shaw v Shaw, 97 AD2d 403; Mayers v Cadman Towers, 89 AD2d 844; Vander v Casperson, 12 NY2d 56; Di Lorenzo v Dutton Lbr. Co., 67 NY2d 138; Alberts v Liuzzi Enters., 127 Misc 2d 190.) II. The People failed to show that appellants took money from a person with a superior right of possession or that appellants acted in a manner inconsistent with Prior’s continuing rights. (People v Keeffe, 50 NY2d 149; People v Olivo, 52 NY2d 309; People v McManus, 138 Misc 2d 546; People v O’Brien, 102 Misc 2d 246; People v Podolsky, 130 Misc 2d 987; Raley v Ohio, 360 US 423; United States v Laub, 385 US 475.) III. The law of bar, waiver, res judicata and collateral estoppel should have been applied by the court below in this case. (Van Dunk v Lazrovitch, 50 Misc 2d 649; Bossuk v Steinberg, 58 NY2d 916; Cohen v Arista Truck Renting Corp., 70 Misc 2d 729; Feinstein v Bergner, 48 NY2d 234; Kramer v Ryder Truck Rental, 112 AD2d 194; Treutlein v Gutierrez, 129 AD2d 791; Hill v Jones, 113 AD2d 874; Gabriel v Beth Israel Med. Center, 121 Misc 2d 351; McNeil v Tomlin, 82 AD2d 825; Lavery v Lopez, 131 AD2d 820.) IV. The State trial court decision constitutes an acquittal on the merits of the criminal charge, appeal of which is barred by the Fifth Amendment to the United States Constitution. (Smalis v Pennsylvania, 476 US 140; United States v Martin Linen Supply Co., 430 US 564; Sanabria v United States, 437 US 54; United States v Scott, 437 US 82; Kepner v United States, 195 US 100; Burks v United States, 437 US 1; United States v Sisson, 399 US 267; Fong Foo v United States, 369 US 141; Sapir v United States, 348 US 373; United States v Sanges, 144 US 310.) V. The review by the court below of the merits constitutes double jeopardy under the New York State Constitution and must be reversed. (People v Sabella, 35 NY2d 158; People v Key, 45 NY2d 111; People

      v Goldfarb, 152 App Div 870; People v Moon, 257 App Div 1019; People of City of Buffalo v Nikiel, 2 Misc 2d 551; People v Gehlberd, 272 App Div 914; People v Tallman, 193 Misc 563; Matter of Mack v Court of Gen. Sessions, 14 AD2d 98; Matter of Snee v County Ct., 31 AD2d 303; People ex rel. Pendleton v Smith, 83 Misc 2d 503, 54 AD2d 195.) VI. The court below erred in permitting a former District Attorney, whom appellants sought to disqualify in a preargument motion later granted after the argument, to appear at oral argument on behalf of respondents.

      Robert M. Morgenthau, District Attorney (John W. Moscow, Mark Dwyer and Beth D. Jacob of counsel), for respondent.
    I. Defendants committed grand larceny when they wrongfully obtained money from Mia Prior by means of a fraudulently obtained default judgment. (Montello Salt Co. v Utah, 221 US 452; United States v Angelilli, 660 F2d 23; People v Firestone, 111 AD2d 696, 65 NY2d 927, 979, 980; People v Dorsion, 65 NY2d 927; Grayned v City of Rockford, 408 US 104; United States v Marcen Labs., 416 F Supp 453, 556 F2d 562; Hazel-Atlas Co. v Hartford Co., 322 US 238.) II. Collateral estoppel has nothing to do with this case. (People v Berkowitz, 50 NY2d 333; People v Lo Cicero, 14 NY2d 374; People v Sailor, 65 NY2d 224; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65.) III. There is no violation of the constitutional prohibitions against double jeopardy. (People v Goldstein, 120 AD2d 471; People v Colon, 65 NY2d 888; People v Graham, 36 NY2d 633; United States v Sisson, 399 US 267; People v Leach, 57 AD2d 332, 46 NY2d 821; United States v Scott, 437 US 82; Smalis v Pennsylvania, 476 US 140; People v Marin, 102 AD2d 14, 65 NY2d 741; People v Dorta, 56 AD2d 607; United States v DiFrancesco, 449 US 117.) IV. There is no cognizable error in Beth Jacob’s having argued the appeal below.
   OPINION OF THE COURT

Chief Judge Wachtler.

The defendants were convicted of larceny for executing a default judgment which is allegedly jurisdictionally defective. The defect, which relates to the sufficiency of the service of the summons on the defaulting party, appears on the face of the application for default. The People claim that the defendants knew that they had not properly served the summons and thus committed larceny. The theory is that the judgment was jurisdictionally defective, that the defendants were aware of the defect and that they therefore knowingly took their opponent’s money without lawful authority.

A jury found the defendants guilty but the trial court set aside the verdict. The Appellate Division reversed and reinstated the conviction. The defendants appeal. The question is whether obtaining money pursuant to the default judgment constituted larceny.

The circumstances which led to this charge are complex and have generated several civil suits and criminal prosecutions involving these defendants and others. For the purposes of the issue presented by this case the facts may be stated with some brevity.

For approximately 10 years Mia Prior was a member of a communal group which operated various activist organizations. She served without pay in several administrative posts and received food, housing and other benefits from the group. During this period she met the defendants, Daniel Foster and Kathleen Paolo, both of whom are practicing attorneys in New York City and active members of the group. In 1983 she asked the defendant Daniel Foster to assist her with certain legal problems relating to her father who was then suffering from an illness requiring long-term care. When her father died in March of 1984 she asked the defendant Foster to handle his estate.

As a result of her father’s death, Mia Prior became the beneficiary of a trust. In July of that year she decided to leave the group. She wrote a letter criticizing its activities, packed an overnight bag and went to live temporarily with a friend on Broadway in Manhattan, leaving behind certain personal belongings. She also retained a Long Island lawyer to handle her legal affairs, which by that time included a dispute with the defendant Daniel Foster concerning his legal fee. She variously claimed that she was entitled to legal services as a member of the group, that the defendant had orally agreed not to charge her anything and that she paid him $1,000 leaving no outstanding balance. The defendant relied on a written retainer agreement and denied that there was any arrangement other than an understanding that he would not demand full payment until she had the funds. The dispute reached an impasse in August when the Long Island attorney informed the defendant that his client did not intend to pay the bill.

During the 10 years she worked with the group, Mia Prior had resided at various places owned by the group or its members, including an apartment located at 415 East 12th Street in Manhattan. She had consistently listed that address as her residence on her driver’s license, bank book, and various legal documents filed in connection with her father’s estate. When she left the group she did not inform them where she was going and in the following months concededly made a conscious effort to conceal this information from them. In August the defendant Foster asked her new attorney if he would accept service for her, but the attorney told the defendant that he was not authorized to do so.

On September 11, 1984, the defendant Daniel Foster, represented by codefendant Kathleen Paolo, commenced an action against Mia Prior for the counsel fee allegedly owed. When she did not answer the summons, the defendants filed for a default judgment. The affidavit of service and each of the defendants’ affidavits submitted on the application state that a summons with notice was delivered to a person of suitable age and discretion at 415 East 12th Street, "the last known residence” of Mia Prior, and that a copy was then mailed to her at that same address. However, the relevant portion of the applicable statute (CPLR 308 [2]) provides that service upon a natural person shall be made "by delivering the summons within.the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by * * * mailing the summons to the person to be served at his or her last known residence or * * * actual place of business”. Thus facially the application was defective because it showed that Mia Prior’s last known residence was used to satisfy both the mailing and delivery requirements. Nevertheless a default judgment was entered. The defendants delivered the judgment to the Sheriff who executed it by removing over $7,000 from Mia Prior’s bank account.

The defendants were charged with grand larceny in the second degree for stealing over $1,500 from Mia Prior. The defendants moved to dismiss, claiming that they could not be found guilty of larceny for taking money pursuant to a default judgment even if it was erroneously granted. The People argued that the defendants could not rely on the judgment when they knew the court had never acquired personal jurisdiction over Mia Prior because of the manner in which the defendants chose to serve her. The motion to dismiss the indictment was denied.

At the trial the People sought to show that when the summons was served, Mia Prior was residing on Broadway, not on East 12th Street, and that the defendants were aware of this. The defendants contended that the East 12th Street address was the one which she had chosen to use in all her legal dealings with them and others, that she had not informed them of any change of address and that they were unable to serve her at any other place where she might be staying temporarily, because she was evading process. There was evidence that on the day the defendants served her at the East 12th Street address, the defendant Daniel Foster had the same process server use the same mode of service to commence an unrelated action against her at the Broadway address and that an attorney had appeared for her in that action. However the defendants claimed that on that day the process server had informed them that when he delivered the summons at Broadway he had been told by the person who accepted it that she did not reside there. They then directed them to deliver the summons in the action at issue here to the East 12th Street address and had subsequently sent notice of default by certified mail, apparently to both addresses. The person who accepted the summons at Broadway testified that he had simply told the process server that she was not there at that time but would return later. It was conceded, however, that she did not want the defendants to know that she was residing there, that she had left instructions to that effect and that she had later refused to accept the certified letter on advice of counsel.

The jury found the defendants guilty of grand larceny as charged but on motion by the defendants the court set aside the verdict. The court held that the judgment was valid when executed and that the defendants therefore had "the authority of law” to obtain the money. The court noted that Mia Prior had made a motion in the civil action to open the default claiming that she had not been properly served and that the default was excusable. Since the court had opened the default and permitted her to answer, without dismissing the action, it must have found that it had personal jurisdiction over her (135 Misc 2d 1029).

On the People’s appeal, the Appellate Division reversed and reinstated the conviction. The court held that "where a judgment has been obtained by the service of a summons at an address where it is known that the person sought to be served does not reside and with intent of depriving that person of property, the judgment has been obtained without the authority of law and can serve as the basis of a grand larceny conviction. Moreover, we disagree with the trial court that because the court in the civil action for legal fees vacated the judgment without dismissing the action, it necessarily found that service was proper. There is no indication that the defendant in the civil action, Prior, sought dismissal of the action” (143 AD2d 56, 58).

On this appeal the defendants argue, as they have throughout, that they had a right to rely on the default judgment, even if it was erroneously issued, and cannot be held to have taken the defaulting party’s money without lawful authority when that was authorized by the judgment. The People contend that the judgment provides no protection for these defendants because they obtained it by fraud and deceit on the court.

The People concede that this is a novel theory for a larceny prosecution in this State, but note that it has been recognized in four other jurisdictions as a basis for larceny (Commonwealth v Aronson, 312 Mass 347, 44 NE2d 679 [obtaining court order by forgery and misrepresentation]; Mowrey v State, 122 Tex Crim 456, 55 SW2d 816 [fraudulently obtained court order]) or attempted larceny charges (Adler v Sheriff, Clark County, 92 Nev 436, 552 P2d 334 [filing false claim in judicial proceedings]; People v Wallace, 78 Cal App 2d 726, 178 P2d 771 [false filing of civil suit]). In the cited cases the defendants had generally obtained or attempted to obtain a court order by forgery, perjury or other misrepresentation of the facts. There is no support in the record for such a theory in this case.

The People’s statement, uncritically accepted by the dissenters, that the defendants "falsely represented to the court that proper service on Prior had occurred” is itself inaccurate. Although the affidavit of Kathleen Paolo erroneously states the boilerplate legal conclusion that "service was duly made” on the defaulting party, the defendants did not misrepresent the facts. As noted above, the affidavits clearly show that service had not been made in the manner prescribed by the statute. When the court granted the default, it may have been mistaken, but it was not misled.

Indeed, the People’s theory at trial was that the defendants wrongfully obtained the default judgment, not because they misinformed the court as to how they had served the summons, but because they knew that the service was inadequate and that the court therefore lacked jurisdiction to grant a default judgment. The People urge that this conduct falls literally within the definition of larceny found in subdivision (1) of Penal Law § 155.05, which states: "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof’. As noted, the theory is that if the court’s order was a nullity, and the defendants knew it, any money they took from the defaulting party by use of the order was taken without lawful authority and was therefore taken wrongfully.

We are not concerned here with whether the defendants violated the canons of professional responsibility or could be held liable for damages in a civil action, but whether they committed a crime. Conduct which is wrongful in the civil context is not necessarily "wrongful” within the meaning of the larceny statutes (People v Yannett, 49 NY2d 296, 302; People v Yonkers Constr. Co., 17 NY2d 322, 337). The courts and the Legislature have been reluctant to elevate civil wrongs to the level of criminal larceny (People v Keeffe, 50 NY2d 149, 159; People v Ryan, 41 NY2d 634, 641), particularly when the conduct arises out of legitimate business activities where there are often close questions as to whether the defendant acted intentionally or was merely incompetent (People v Churchill, 47 NY2d 151, 157). They are also reluctant to see civil suits beget criminal prosecutions, as is evident from the statute derived from the common law, requiring corroboration for perjury and similar offenses in order to discourage litigants defeated in civil suits from bringing retaliatory criminal charges against their erstwhile opponents (Penal Law § 210.50; People v Sabella, 35 NY2d 158, 167-168).

In such cases, whenever the Legislature has found that certain acts performed in these contexts warrant criminal punishment, it has generally identified the prohibited conduct quite specifically and provided some additional safeguard, such as the corroboration requirement for perjury (Penal Law § 210.50), the very high burden of proof applicable to larceny by false promise (Penal Law § 155.05 [2] [d]; People v Ryan, supra, at 639-640) or the affirmative defenses to issuing a bad check and the related larceny (Penal Law §§ 190.15, 155.05 [2] [c]), in order to protect the truly inept or victims of spite from being branded as criminals. Indeed, even in civil cases the courts are reluctant to penalize attorneys for actions taken on behalf of their clients which allegedly injured their opponents, for fear of inhibiting free access to the courts. Thus, when it is claimed that an attorney has brought a meritless suit or proceeding the court will not find civil liability unless the conduct is otherwise tortious (Drago v Buonagurio, 46 NY2d 778), nor will it impose a civil penalty in the absence of a statute or court rule specifically defining the prohibited conduct and authorized penalties (Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1).

Penal Law § 155.05 (2) broadly "includes” every common-law larceny offense, as more expansively defined by the Legislature (Penal Law § 155.00), together with several statutory offenses not previously considered larceny by the courts (see, e.g., People v Churchill, supra). It has been, and should be, broadly interpreted to carry out the legislative intent (Penal Law § 5.00; see, e.g., People v Alamo, 34 NY2d 453). But, despite the broad reach of subdivision (2), the People concede that it does not include cases where property has been "wrongfully” taken by use of a fraudulently obtained court order or one which the defendant knew was jurisdictionally defective. They claim that subdivision 1 of that section was intended to serve as a catchall or generic larceny offense which is broad enough to encompass such conduct. We have noted on several occasions, however, that the broad wording of this statute is narrowed by its history and purpose (People v Johnson, 39 NY2d 364, 369-370; People v Karp, 298 NY 213).

As was the case with its predecessor (former Penal Law § 1290), subdivision (1) is designed to eliminate the risk that a prosecution might fail because the evidence at trial proved that the defendant "stole the property in a manner different from the manner charged in the accusatory instrument” (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 155, at 101; see also, People v Johnson, supra; People v Karp, supra). It provides a definition of larceny sufficiently broad, for pleading purposes, to encompass all larceny offenses recognized at common law as redefined by the Legislature (People v Johnson, supra; People v Alamo, supra, at 459-460), together with the purely statutory offenses listed in subdivision (2) and elsewhere. But it does not enlarge the scope of the crime or constitute a catchall for acts not otherwise specifically prohibited by the Legislature (People v Karp, supra). In short, the defendants’ conduct is not larceny as defined by the Legislature.

We do not mean to minimize the problem or suggest that those who misuse the judicial process to harass or invade the rights of others are never deserving of punishment under the Penal Law. The problems of baseless lawsuits, as well as "sewer service” and its variants, have been subject to much discussion and proposed solutions, some of which have been adopted (see, Siegel, NY Prac §71, at 76-77). The goal has always been the difficult one of devising measures which discourage or frustrate the few who abuse the process, without inhibiting the many honest lawyers and litigants by placing them in constant dread that they may be held to criminal account for an arguable professional misstep, possibly caused by oversight, or indifference, even by the court or court personnel. It may be that the ultimate solution is to impose criminal penalties; but that is a determination to be made by the Legislature. If, as we have held, attorneys and parties who pursue their adversaries through the courts with meritless claims cannot be subject to civil penalties for the losses suffered without fair notice by statute or regulation of the prohibited conduct, at least the same protections should be afforded before the more severe criminal penalties of the larceny statutes are imposed (cf., People v Keeffe, supra, at 159).* ***

Accordingly, the order of the Appellate Division should be reversed, and the order of the Supreme Court reinstated.

Alexander, J.

(dissenting). I cannot agree with the majority holding that defendants’ taking of the complainant’s property, found by the jury upon sufficient evidence to be wrongful and committed with larcenous intent, must go unpunished because the Legislature has not listed this type of taking in Penal Law § 155.05 (2). Accordingly, I respectfully dissent and would affirm the Appellate Division order reinstating defendants’ convictions.

I

During the period from 1975 through the summer of 1984 complainant Mia Prior was a member of a communal organization, the Provisional Party of Communists (the party). Defendants Foster and Paolo, both attorneys, were also members of the party and provided various legal and other services to the organization. Membership in the party was a full-time commitment and the party provided assigned housing, food and other benefits, including medical and legal services, to its members. During her membership, Prior had been assigned to and stayed at various residences owned by the party, including apartments located at 415 East 12th Street and 145 West 55th Street in Manhattan. She listed 415 East 12th Street as her residence on her driver’s license, bank book and on various legal documents relating to her father’s estate.

In 1983 Foster assisted Prior with legal problems relating to her gravely ill father and after his death in March 1984, Foster handled the estate. After her father’s death, Prior became the beneficiary of a trust from which she received quarterly payments of approximately $7,500 deposited directly to her bank account.

Prior left the party on July 26, 1984, taking what she could carry from 145 West 55th Street, her assigned residence at the time. She wrote a letter criticizing the party’s activities and went to live with a family friend at 3657 Broadway, but did not advise the party of where she was going. Four days later, a forged check for $7,700 payable to "Harold Jones” and drawn on Prior’s account was cashed by two of Foster’s employees. A letter of authorization, allegedly signed by Prior but also forged, was presented to the bank with the forged check. The evidence established that Foster had arranged to have the two employees, Harold Jones and Mark Orrisch, cash the check and turn over the proceeds to him. As a result of Prior’s complaints to the bank, the forgeries were investigated and defendants were ultimately convicted on charges that are. not involved in this appeal.

In the meanwhile, a dispute developed between Prior and Foster concerning his legal fee and Prior retained new counsel who informed Foster that she did not intend to pay the bill. In September 1984, after he had become aware of the forgery investigation, Foster commenced an action for legal fees against Prior and arranged for the commencement of an action against her for fees for medical services rendered to her father. Foster’s law firm was the named plaintiff in the legal fees action, with defendant Paolo acting as counsel. In the medical fees action, Foster represented the plaintiff, a professional corporation of physicians who were also party members.

The summonses in both actions were issued simultaneously and were given to a process server who worked for Foster and had some knowledge of Prior. The process server delivered the summons in the medical fees action to one Grant Hamilton at the 3657 Broadway address where Prior was residing. Prior received the summons and timely interposed an answer.

Notwithstanding that the process server had both summonses with him when he delivered the summons in the medical fees action and even though according to Hamilton’s testimony the process server was told only that Prior was out and would be back, the process server did not deliver the summons in the legal fees action to Hamilton at the Broadway address. The process server did not testify at the trial but Foster testified, in contradiction of Hamilton’s testimony, that the process server told him that when he delivered the medical fees summons at the Broadway address he was told by the person who accepted it that Prior did not live there. According to Foster, the process server was directed to deliver the summons in the legal fees action to the East 12th Street address and did in fact deliver the summons there to a James Rosenberg, a party member who knew both Foster and Prior. A copy of the summons was subsequently mailed to Prior at the East 12th Street address. Prior did not respond and a notice of default was sent by certified mail to her at the Broadway address. Acting on the advice of her attorney, she refused to accept the certified letter.

Defendants caused a default judgment to be entered based upon Paolo’s affirmation which stated that Prior had been "duly served” by delivery of the summons and notice at 415 East 12th Street, Prior’s "last known residence address”, and mailing to the same address. Similarly, Foster’s affidavit in support of the application for a default judgment stated that delivery had been made to a person of suitable age and discretion at 415 East 12th Street, Prior’s "last known address”. As defendants well knew, however, the relevant statute provides that service by delivery to a person of suitable age and discretion must be made by delivery at the "actual place of business, dwelling place or usual place of abode” and mailing a copy of the summons to the "last known residence or * * * actual place of business” (see, CPLR 308 [2] [emphasis added]). Nevertheless, defendants procured entry of the default judgment and executed upon the judgment by levying against Prior’s bank account — obtaining over $7,000.

Defendants were indicted and charged, inter alia, with grand larceny in that they stole over $1,500 from Mia Prior (Penal Law §§ 155.05, 155.45). At trial the People proved that defendants obtained the money by deliberately purporting to serve Prior at an address where they knew she did not live, thus enabling them to fraudulently secure a default judgment and obtain property by executing on that judgment. The jury returned a verdict convicting defendants of larceny, but the trial court set the verdict aside because, in its view, when Civil Term granted Prior’s motion to vacate the default, it had necessarily found that personal jurisdiction had been acquired in the legal fees action. The Trial Judge thus concluded that the default judgment was valid and defendants’ execution thereon was not "wrongful” since they were acting under color of law (135 Mise 2d 1029, 1032). The Appellate Division reversed and reinstated the verdict, concluding that defendants acted without authority of law when, with the intent to deprive Mia Prior of her property, they wrongfully executed upon a default judgment they knew to have been obtained by improper service, deliberately made.

II

Despite this evidence conclusively establishing defendants’ guilt, the majority holds that obtaining property with larcenous intent, even if wrongful, does not constitute larceny under Penal Law § 155.05 if the property is obtained by a lawyer’s deliberate misuse of the judicial process. In reaching this result, the majority would limit the crime of larceny to the types of takings listed in subdivision (2) of the statute notwithstanding the significantly broad language of subdivision (1). Thus the majority would effectively insulate from any larceny prosecution those thieves clever enough to effect a wrongful taking of property through a deliberate and deceitful misuse of the judicial process.

The majority’s conclusion that this wrongful taking "is not larceny as defined by the Legislature” because it is not a type of taking listed in Penal Law § 155.05 (2) (majority opn, at 605) ignores the plain language and structure of the statute. Subdivision (1) of Penal Law § 155.05 broadly defines larceny as a wrongful taking, obtaining or withholding of property "with intent to deprive another * * * or to appropriate the same to [oneself] or to a third person”. Without any indicated limitation of that subdivision, subdivision (2) further explains that "[l]arceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section,” committed in a number of specified ways (Penal Law § 155.05 [2] [emphasis added]). Given this inclusive rather than exclusive language, any wrongful taking committed with larcenous intent falls with the plain and natural meaning of the statute (People v Ditta, 52 NY2d 657, 660). Moreover, the majority’s novel construction of subdivision (1) as merely a pleading requirement rather than a substantive definition (majority opn, at 605) renders the subdivision mere surplusage since the pleading requirements for larceny are clearly outlined in Penal Law § 155.45. This strained and hypertechnical reading of the statute is contrary to the well-established rule that penal statutes are no longer to be strictly construed but are to be interpreted " 'according to the fair import of their terms to promote justice and effect the objects of the law’ ” (People v Ditta, 52 NY2d, at 660, supra; Penal Law § 5.00).

Nor can such a restrictive construction be justified because Penal Law § 155.45 was intended to provide a simplified method for charging and proving larceny and thereby remedy the common-law problem of thieves escaping liability because of the prosecution’s failure to charge or prove the particular methodology used (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 155, at 104; see also, People v Johnson, 39 NY2d 364, 369; People v Karp, 298 NY 213, 216 [construing the predecessor statutes, former Penal Law §§ 1290, 1290-a]). Section 155.05 (1) complements this simplified pleading scheme by "establishing 'larceny’ in its broadly defined form regardless of the basic common law offense underlying the particular case” (Donnino, Practice Commentary, op. cit., at 98, quoting Staff Notes of Commission on Revision of Penal Law, Proposed New York Penal Law, McKinney’s Spec Pamph [1964], at 350-351). There is no indication, however, that the Legislature intended that this broad substantive definition be limited to the types of larcenies listed in section 155.05 (2) and we have expressly stated that larceny can be committed under either subdivision. In People v Keeffe (50 NY2d 149, 155), construing the term "owner” in Penal Law § 155.05 (1), we explained that: "Larceny is committed when one wrongfully takes or withholds 'property from an owner thereof with intent to deprive the owner of it or appropriate it to himself (Penal Law § 155.05, subd 1), or with such intent takes or withholds another’s property by 'common law larceny by trespassory taking’ (subd 2)” (emphasis added).

People v Karp (298 NY 213, supra) and People v Johnson (39 NY2d 364, supra), relied on by the majority, are not to the contrary. In People v Karp (298 NY, at 216-217, supra), we held simply that when property is obtained by false pretenses, a type of larceny recognized at common law and subsequently listed in the larceny statute, the People must charge and prove what had always been required for that type of larceny —a deliberate misrepresentation of an existing, rather than a future fact. We concluded that the larceny statute (former Penal Law § 1290) did not criminalize conduct which we had previously and repeatedly recognized as innocent because it did not constitute larceny by false pretenses (id., at 216; see, e.g., People v Blanchard, 90 NY 314, 324 [false promise to buy cattle at a future date is insufficient to establish larceny by false pretense]; cf., People v Rothstein, 180 NY 148, 152 [false statement of an existing order for the manufacture of goods is sufficient to establish larceny by false pretenses]). The defendants here, however, have not engaged in conduct ever recognized as innocent. To the contrary, a wrongful taking of property, committed with larcenous intent has always been recognized as criminal and such conduct is not rendered innocent simply because the Legislature has not expressly stated that larceny is committed when the taking is effected through the instrumentality of the court.

In People v Johnson (39 NY2d, at 368-370, supra), we held that a defendant charged with grand larceny could not be convicted of petit larceny by false promise as a lesser included offense when the operative facts and physical locations of the two crimes were materially different. Plainly, such a rule has no application here.

Thus, any wrongful taking, obtaining or withholding of the property of another, committed with the requisite intent, constitutes larceny within the meaning of the Penal Law (People v Keeffe, 50 NY2d, at 155, supra). Moreover, "obtain” is broadly defined and includes "the bringing about of a transfer * * * of property or of a legal interest therein, whether to the obtainer or another” (Penal Law § 155.00 [2]). Arranging for the transfer of money through the execution of a default judgment certainly falls within this statutory definition, and if done wrongfully and with larcenous intent, constitutes larceny.

The only remaining issue is whether the Appellate Division correctly determined that the evidence before the jury, viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621) sufficiently established the elements of the crime. Defendants do not dispute that they intended to and did obtain property from Mia Prior. Rather, they argue that the evidence is legally insufficient because they acted with authority of law in executing the default judgment and therefore their actions were not "wrongful” (see, People v Ricchiuti, 93 AD2d 842, 844). As the Appellate Division found, however, ample evidence supports the jury’s determination that defendants wrongfully obtained the default judgment by deliberately serving Mia Prior at an address where they knew that she did not live.

On September 11, 1984, defendants served Prior in the medical fees action at 3657 Broadway, an address where they had reason to believe she was living after she left the party approximately six weeks earlier. Although the process server who delivered the medical fees summons also had the legal fees summons with him, he did not leave it at the same address. According to defendant Foster, the process server acted on information given to him by the tenant at 3657 Broadway and delivered the legal fees summons to a party member at 415 East 12th Street, a residence owned by the party and a residence which was not even Prior’s "last known address” when she was a member of the party. Indeed, it is undisputed that when Prior left the party in July, she had been residing at the party residence located at 145 West 55th Street. Therefore, to the extent that the affirmation of Paolo and affidavit of Foster submitted in support of the application for a default judgment indicated that Prior had been served at her "last known residence”, they are false.

Moreover, in returning a guilty verdict, the jury obviously credited, as they were entitled to do, the testimony of Grant Hamilton and the other witnesses for the People and discredited Foster’s contradictory testimony. Thus the record amply supports the jury’s determination that defendants’ wrongfully obtained a default judgment against Prior and took her property by executing on that judgment with larcenous intent. The evidence, therefore, is legally sufficient to support their convictions.

Finally, I share the majority’s concern for honest lawyers and litigants, but such lawyers and litigants would in no way be jeopardized by an affirmance in this case. Clearly, honest lawyers and litigants are not exposed to the spectre of criminal liability for simply pursuing baseless lawsuits or for conduct which may be nothing more than an oversight (see, majority opn, at 606). The jury has determined that Foster and Paolo did not simply file a baseless lawsuit or advance a frivolous claim. Nor did they merely negligently hire a process server who without their knowledge failed to make proper service. Rather, these lawyers deliberately arranged for Prior to be served at an address where they knew that she did not live and, with the larcenous intention of wrongfully depriving Prior of her property, they obtained a default judgment and executed on that judgment. Such conduct falls within the plain meaning of larceny as defined in Penal Law § 155.05 (1) and should be punished as criminal.

Accordingly, I would affirm the order of the Appellate Division.

Judges Simons, Hancock, Jr., and Bellacosa concur with Chief Judge Wachtler; Judge Alexander dissents and votes to affirm in a separate opinion in which Judge Titone concurs; Judge Kaye taking no part.

Order reversed, etc.

      . There is no indication that a Judge actually passed on the application. It appears from the record that the papers were accepted by a clerk as a default on a claim for a sum certain (CPLR 3215 [a]), which it was not (see, Siegel, NY Prac § 293, at 347). The clerk should have referred the application to a Judge (CPLR 3215 [b]).

      . Although the facts are not dispositive for this appeal, certain statements made by the dissent should be clarified.
      The dissent states that legal services were one of the benefits provided by the group, suggesting apparently that the defendants’ suit for legal fees was unfounded. As a member of the group, Mia Prior may have been entitled to some legal services, but she was unable at this criminal trial to show how any of the various agreements referred to entitled her to have legal services performed for or on behalf of her father.
      The dissent also notes that she was staying at an apartment on West 55th Street on the day she decided to leave the group, and suggests that this was her last residence as far as the defendants knew. Actually this apartment was located above and was attached to the defendant Foster’s law office. At the trial, Prior conceded that she only stayed there temporarily, for a few weeks during the summer while she recovered from a back injury. Under all these circumstances this address cannot reasonably be said to be her "last known residence” within the meaning of CPLR 308 (2), as the dissent would hold (at 613).
      Indeed, we assume the dissent is not suggesting that the defendant would have been better advised professionally to mail the summons to Prior at his own apartment.

      . The defendants were also convicted of other offenses. Their appeal relating to those offenses is still pending in the Appellate Division.

      . Contrary to the dissent, the discussion of this point in People v Karp (298 NY 213) is not dictum. In Karp, as here, the prosecutor urged that conduct never previously regarded as larceny in this State could, nevertheless, be punished as larceny because it fell within the broad definition of larceny found in former Penal Law § 1290 (now Penal Law § 155.05 [1]). We rejected that argument noting (at 216) that the law was not "designed to, and did not, broaden the scope of the crime of larceny or designate as criminal that which was previously innocent.”
      The dissent also misses the point in attempting to dismiss People v Johnson (39 NY2d 364) as an irrelevant lesser included offense determination. What the dissent overlooks is that in resolving that point, the court first had to construe Penal Law § 155.05 (1) and its companion § 155.45 (1). After reviewing the history and purpose of those statutes, this court concluded (at 369-370) that they were enacted to deal with "pleading and proof’ problems and should not be given effect beyond their intended scope.
      Finally, the quotation from People v Keeffe, (50 NY2d 149) on which the dissent relies, simply illustrates that subdivision (1) of Penal Law § 155.05 is broad enough to encompass all the larceny offenses listed in subdivision (2) or elsewhere and that, to that extent, it provides an alternative basis for pleading and conviction. Neither that case nor any other case from this court has held that a defendant could be convicted of larceny on the basis of subdivision (1), when the conduct had never been proscribed under subdivision (2) or any other provision of law. Notably subdivision (2) states that "[l]arceny includes” specified conduct, suggesting an exhaustive list of conduct proscribed as larcenous under the Penal Law. If the Legislature had intended this to mean larceny "includes, but is not limited to” the proscribed conduct, it could easily have used those terms as it did in defining other aspects of larceny in the section immediately preceding this one (Penal Law § 155.00 [2], [8]).

      . In view of this disposition it is unnecessary for us to consider the other issues as to whether the service was good under the circumstances (cf., Dobkin v Chapman, 21 NY2d 490), whether a finding of jurisdiction by the civil court, or a waiver of the defect by failure to assert it, should be given preclusive effect in the criminal prosecution, and whether a waivable jurisdictional defect renders an order a nullity for the purpose of imposing liability on those who have relied upon it.

      . Indeed, the majority’s reliance on both People v Karp (298 NY 213) and People v Johnson (39 NY2d 364) for propositions much broader than the holdings of those cases is contrary to the well-established principles of stare decisis. It is basic that principles of law "are not established by what was said, but by what was decided, and what was said is not evidence of what was decided, unless it relates directly to the question presented for decision” (People ex rel. Metropolitan St. Ry. Co. v State Bd. of Tax Commrs., 174 NY 417, 447).

      . The other jurisdictions considering this issue are in accord. (See, Commonwealth v Aronson, 312 Mass 347, 44 NE2d 679 [larceny committed by obtaining court order by forgery and misrepresentation]; Mowrey v State, 122 Tex Grim 456, 55 SW2d 816 [larceny committed when property acquired by fraudulently obtained court order]; Adler v Sheriff, Clark County, 92 Nev 436, 552 P2d 334 [filing false claim in judicial proceedings constituted attempted larceny]; People v Wallace, 78 Cal App 2d 726, 178 P2d 771 [false filing of civil suit constituted attempted larceny]).


author: Simons, J.

text:
    The People of the State of New York, Respondent, v Louis De George, Appellant.
    Argued April 25, 1989;
    decided June 6, 1989

      POINTS OF COUNSEL

      Elaine Jackson Stack for appellant.
    I. The admission of testimony regarding defendant’s pretrial silence was error requiring a new trial. (People v Savage, 50 NY2d 673; Doyle v Ohio, 426 US 610; People v Conyers, 49 NY2d 174, 52 NY2d 454; People v Pavao, 59 NY2d 282; People v Von Werne, 41 NY2d 584; Miranda v Arizona, 384 US 436; People v Al-Kanani, 26 NY2d 473; People v Dawson, 50 NY2d 311; People v Christman, 23 NY2d 429.) II. Defendant’s conviction must be reversed because of the prosecutor’s improper comments. (People v Ashwal, 39 NY2d 105; People v Chin, 138 AD2d 389; People v Hall, 138 AD2d 404; People v Rivers 96 AD2d 874; People v De Jesus, 42 NY2d 519; People v Galloway, 54 NY2d 396; People v West, 137 AD2d 855.) III. The trial court committed error in refusing to dismiss count three of the indictment based on the statutory exemption embodied in Penal Law § 265.20 (a) (3), or, in the alternative, in its refusal to charge the jury on this exemption. (People v Parker, 70 AD2d 387, 52 NY2d 935; People v Serrano, 71 AD2d 258, 52 NY2d 936; People v Schumann, 133 Misc 2d 499; People v Ocasio, 108 Misc 2d 211.) IV. It was error for the trial court to refuse to charge Penal Law § 20.10. (People v Steele, 26 NY2d 526; People v Collins, 86 AD2d 616.) V. It was error to have denied defendant’s motion for a mistrial. VI. The multiplicity of errors deprived defendant-appellant of a fair trial. (People v Crimmins, 36 NY2d 230; Chapman v California, 386 US 18; People v Forgione, 134 AD2d 514; People v Garcia, 72 AD2d 356; People v Rosa, 108 AD2d 531.)

      Denis Dillon, District Attorney (John F. McGlynn and Bruce

      E. Whitney of counsel), for respondent.
    I. Proof of appellant’s prearrest silence was properly received in evidence at trial. (People v Davis, 43 NY2d 17; People v De George, 142 AD2d 589; People v Gaudet, 115 AD2d 183, 67 NY2d 883; People v Kanelos, 107 AD2d 764; People v Lilly, 71 AD2d 393.) II. The prosecutor’s summation consisted of fair comment on the evidence, was not inflammatory, and did not deprive appellant of a fair trial. (People v Ashwal, 39 NY2d 105; People v Jackson, 143 AD2d 363; People v Medina, 53 NY2d 951; Lutwak v United States, 344 US 604; People v Kingston, 8 NY2d 384.) III. The motion for a mistrial was properly denied. (People v Liccione, 50 NY2d 850; People v McDowell, 47 NY2d 858.) IV. Appellant received a fair trial.
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of assault in the first degree (Penal Law § 120.10) and criminal use of a firearm in the second degree (Penal Law § 265.08) as the result of the barroom shooting of Gary Campbell. During the trial, the jury heard evidence of defendant’s silence shortly before his arrest, particularly his failure to respond to general inquiries made in his presence at the scene of the shooting by the investigating police officer. It was used both to impeach defendant’s testimony on cross-examination and as direct evidence of defendant’s depraved indifference in perpetrating the assault on the victim. We conclude that receipt of this evidence constituted error and requires a new trial.

On February 11, 1985 defendant, his girlfriend, Donna Barreiro, and her sister, Cynthia Cassano, were in Captain Steve’s Bar in Lynbrook, New York, when the victim entered the bar and attempted to join their conversation. Initially, the tone of the discussion was friendly but Campbell became increasingly obnoxious as he continued to drink. Eventually he and defendant got in a dispute and began shoving each other. As they struggled, defendant drew a .38 caliber handgun from a sjioulder holster. The gun discharged and the bullet struck Campbell in the neck, seriously injuring him.

Police Officer Carl Lisi was the first officer at the scene. When he arrived, defendant was sitting at the bar with Ms. Barreiro and Ms. Cassano, and Campbell was lying on the floor in a pool of blood. Officer Lisi made general inquiries of the patrons but was unable to learn what had happened. He had Campbell removed to a hospital and then, with another officer who had arrived subsequently, continued the investigation. Upon questioning Ms. Cassano, he learned that in the excitement after the shooting Ms. Barreiro had secreted defendant’s gun and holster in her apartment next door. She helped Lisi recover the gun and, after he had done so, Detective John Ceprini took defendant into the dining room off the bar area, advised him of his Miranda rights and then asked him to explain what happened. Defendant told Ceprini that Campbell had become obnoxious while visiting with Ms. Barreiro and Ms. Cassano and that he had told him to stop. When Campbell failed to do so, the two men started pushing each other and during the struggle Campbell fell to the floor. Defendant acknowledged seeing blood on the floor underneath Campbell’s body but made no mention of the gun. Ceprini arrested defendant and took him to the police station where he executed a written statement. In this statement, he admitted that he used a gun to strike defendant on the head, that when he did so it accidentally discharged and that he then saw Campbell fall to the floor.

Defendant was charged with assault in the first degree for recklessly engaging in conduct “[u]nder circumstances evincing a depraved indifference to human life * * * which created] a grave risk of death to another person, and thereby cause[d] serious physical injury to another person” (Penal Law § 120.10 [3]). The People, in an attempt to impeach defendant’s claim that the shooting was an accident, and to help prove an essential element of the crime charged, “depraved indifference to human life”, introduced testimony that he remained silent and sat at the bar with a drink in front of him shortly after the incident. Thus, Officer Lisi testified that immediately after he entered the bar and noticed Campbell he asked the patrons and the bartender what had happened but that defendant did not respond to his general inquiry. Lisi testified further that after learning that Campbell was wounded by a bullet he asked the people in the bar, “Who had the gun?”, “Who shot him?” and that defendant did not respond to either of these general questions.

After the People rested, the defense called a waitress at Captain Steve’s. She testified that she witnessed the events of the shooting and, on cross-examination by the prosecutor, she was permitted to give evidence similar to Officer Lisi’s, testifying that defendant did not approach Officer Lisi or inform him of the shooting. The People were also permitted to ask defendant on cross-examination whether he had telephoned the police after the accident or requested someone to do so. All of this testimony was admitted over the objection of defense counsel and it was used by the prosecutor in summation to support his theory of the assault. This use of defendant’s prearrest silence to impeach him or as direct evidence of guilt violated our common-law rules of evidence. Accordingly, we need not address defendant’s contention that its admission violated article I, § 6 of the State Constitution and the Fifth Amendment of the United States Constitution.

Analysis starts with People v Conyers, a case considered by this court twice. In People v Conyers (49 NY2d 174 [Conyers I]), we held that silence at the time of arrest could not be used against a defendant for impeachment purposes because its use violated due process and improperly penalized defendant for the assertion of a basic constitutional right. While the People’s petition for a writ of certiorari was pending, the Supreme Court handed down Jenkins v Anderson (447 US 231, 239-241) in which it held that the use of a defendant’s prearrest silence for impeachment purposes does not offend guarantees contained in the United States Constitution. The court noted, however, that individual State courts remain free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial (id., at 240; see also, Fletcher v Weir, 455 US 603, 607). Shortly thereafter, the Supreme Court granted certiorari in Conyers I, vacated our order and remanded the case for further consideration in light of Jenkins (New York v Conyers, 449 US 809).

Upon reconsideration, we held that absent circumstances not there present, our State rules of evidence preclude the use of a defendant’s pretrial silence to impeach his trial testimony (People v Conyers, 52 NY2d 454, 457 [Conyers II]). This was so, we said, because a defendant’s silence in the face of police interrogation shortly after evidence of a crime is uncovered is usually ambiguous and its probative value minimal (People v Conyers, 52 NY2d 454, 458, supra; see also, People v Conyers, 49 NY2d 174, 181, supra; United States v Hale, 422 US 171, 176-177).

Silence in these circumstances is ambiguous because an innocent person may have many reasons for not speaking. Among those identified are a person’s "awareness that he is under no obligation to speak or to the natural caution that arises from his knowledge that anything he says might later be used against him at trial” (Conyers II, at 458), a belief that efforts at exoneration would be futile under the circumstances (People v Dawson, 50 NY2d 311, 322) or because of explicit instructions not to speak from an attorney (see, People v Conrow, 200 NY 356, 367-369; Fisch, New York Evidence § 792 [2d ed 1977]). Moreover, there are individuals who mistrust law enforcement officials and refuse to speak to them not because they are guilty of some crime, but rather because "they are simply fearful of coming into contact with those whom they regard as antagonists” (People v Conyers, 52 NY2d 454, 458, supra). In most cases it is impossible to conclude that a failure to speak is more consistent with guilt than with innocence.

Moreover, despite its lack of probative value the evidence undoubtedly affects a witness’ credibility. Jurors, who may not be sensitive to the wide variety of alternative explanations for a defendant’s pretrial silence, may assign much more weight to it than is warranted and thus the evidence may create a substantial risk of prejudice (see, People v Conyers, 52 NY2d 454, 459, supra; see also, United States v Hale, 422 US 171, 180, supra).

To be distinguished are those limited cases in which evidence of silence has been admitted to impeach the credibility of a defendant who takes the stand because the circumstances justify the inference that the evidence is more consistent with guilt than innocence. For example, in People v Rothschild (35 NY2d 355, 358-359) a police officer charged with larceny claimed at trial that he had been engaged in a police undercover operation and had not actually been seeking to obtain money illegally. The People cross-examined him concerning his silence at the time of the arrest in an attempt to impeach his claim that he was involved in a police operation. Notwithstanding receipt of this evidence, we affirmed the conviction because under the circumstances, the evidence of silence had an unusually high probative value. The officer was under a duty to inform his superiors of his undercover activities and thus his continued silence in the face of direct accusations by his fellow officers was probative of guilt (id., at 360-361; see also, People v Bowen, 65 AD2d 364, affd 50 NY2d 915; see generally, Richardson, Evidence §§ 222, 502-A [10th ed 1972-1982 Cum Supp]).

The People contend that the Conyers decisions related to "postarrest” silence and are not controlling because the case before us involves prearrest silence. Our language in Conyers II was not so limited, however; although defendant had been arrested and the court could have emphasized that fact, we spoke of defendant’s "pretrial silence” (People v Conyers, 52 NY2d 454, 457, 459, supra).

But even more to the point, the rationale of Conyers holding applies with equal force to the facts in this case. Indeed, the circumstances here create even stronger doubts about the probative value of defendant’s silence. For example, Officer Lisi’s questioning was not directed at any particular person at the scene and no direct statement or implied accusation was made to defendant that would naturally result in protest if untrue (see, People v Allen, 300 NY 222, 225, supra; People v Egan, 78 AD2d 34, 36). Significantly, other people at the bar with defendant did not reply to the police officer’s general inquiries either. Thus, any probative weight that might be gained from silence persisting in the face of a direct accusation was not present (see, United States v Hale, 422 US 171, 176, supra). In addition, defendant testified that following the incident he was "numb all over”, "scared” and "in a cold sweat”. The only conversation he remembered until Ceprini questioned him was the bartender asking him if he wanted a drink. In the absence of evidence establishing that defendant heard pr understood Officer Lisi’s questions, this testimony also reduced any probative value his silence might have had (see, People v Lourido, 70 NY2d 428, 434; see generally, Fisch, New York Evidence § 792 [2d ed]). Finally, defendant was not under any duty to speak as was defendant in People v Rothschild (35 NY2d 355, supra).

The People also attempted to use defendant’s prearrest silence as direct evidence of "depraved indifference to human life”. Due to constitutional protections, a defendant’s silence at or after his arrest cannot be used by the People as a part of their direct case (People v Conyers, 49 NY2d 174, 177, supra; People v Rothschild, 35 NY2d 355, 359, supra; People v Rutigliano, 261 NY 103, 106-107), but the People maintain that the prearrest silence may be so used. They rely on People v Kanelos (107 AD2d 764, 765) in which defendant driver, while intoxicated, shot his passenger and then abandoned him in the snow in a deserted area (see also, People v Gaudet, 115 AD2d 183; People v Lilly, 71 AD2d 393). The evidence in Kanelos involved conduct, and that decision and the other similar cases cited do not support the proposition that a defendant’s silence and failure to respond to general police inquiries before arrest may be used in the prosecutor’s case-in-chief. Moreover, whether defendant’s actions constituted "depraved indifference to human life” is based on an objective assessment of the circumstances surrounding the shooting and not on the subjective intent of defendant (People v Register, 60 NY2d 270, 276-277). Defendant’s "remorse, grief * * * emotional condition”, or even his silence after the incident, has little relevance in proving he acted under circumstances "evincing a depraved indifference to human life” (see, People v Roe, 74 NY2d 20, 27 [decided today]).

Inasmuch as there must be a new trial, we have no need to consider the other errors defendant asserts.

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

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

Order reversed, etc.


author: Alexander, J.

text:
    Jerry Spiegel, Respondent, v Stephan P. Ferraro et al., Defendants, and Ernie’s Auto Body, Inc., Appellant.
    Argued April 25, 1989;
    decided June 6, 1989

      POINTS OF COUNSEL

      William C. Donnino and Peter Panaro for appellant.
    A demand and refusal to open an easement, which is in existence but obstructed, is not required, as a matter of law, before the requisite possession for a claim of adverse possession may be deemed "adverse”. Accordingly, appellant adversely possessed the easement for more than 10 years. (Filby v Brooks, 105 AD2d 826, 66 NY2d 640; Castle Assocs. v Schwartz, 63 AD2d 481; Powlowski v Mohawk Gulf Club, 204 App Div 200; O’Hara v Wallace, 83 Misc 2d 383, 52 AD2d 622; Smyles v Hastings, 22 NY 217; Woodruff v Paddock, 130 NY 618; Hennessy v Murdock, 137 NY 317; Belotti v Bickhardt, 228 NY 296; Brand v Prince, 35 NY2d 634; Murphy v Sigalos, 8 Misc 2d 633.)

      Gerald P. Rosenberg for respondent.
    An easement created by grant, but not put to use, may be obstructed by the owner of the servient tenement by a fence or other easily removable obstruction, or both, and such use does not become adverse to the existence of the easement until such time as a demand is made that the easement be opened and the owner of the servient tenement refuses to do so. (Smyles v Hastings, 22 NY 217; Consolidated Rail Corp. v MASP Equip. Corp., 109 AD2d 604, 67 NY2d 35; Clausi v Meddaugh, 121 AD2d 841, 69 NY2d 602; Armour v Marino, 140 AD2d 752; Powlowski v Mohawk Gulf Club, 204 App Div 200; Quain v Buzzetta Constr. Corp., 69 NY2d 376; Heughes v Galusha Stove Co., 133 App Div 814; Welsh v Taylor, 134 NY 450; Quinn v County of Nassau, 33 Misc 2d 701; O’Hara v Wallace, 83 Misc 2d 383, 52 AD2d 622.)
   OPINION OF THE COURT

Alexander, J.

Where an easement has been definitively located and developed through use, there is no requirement that its owner demand the removal of obstructions blocking the easement before it may be extinguished by adverse possession. A use of an easement which is exclusive, open and notoriously hostile to the interests of the owner commences the running of the prescriptive period and the user may extinguish the easement if that use continues uninterrupted for a period of 10 years. Defendants having demonstrated that these requirements of adverse possession have been fulfilled, the order of the Appellate Division must be reversed.

I

In 1954, Alfred, Louis and Michael Masone sold a portion of their property to Nassau Farmers Market, Inc., together with a nonexclusive easement of ingress and egress over their retained property affording access to Broadway, the road adjoining the eastern border of the property. The western border of the conveyed parcel abuts Bloomingdale Road. In 1970, this parcel was conveyed to the plaintiff, Jerry Spiegel, along with the easement. In 1964, the grantor’s retained parcel was conveyed to Frank Boni and Michael Pavone who in 1982 conveyed the parcel to defendants Nicholas and Stephan Ferraro. Boni and Pavone leased the premises to defendant Ernie’s Auto Body, Inc. (Ernie’s) in 1966 and in 1982, Ernie’s renewed that lease with the Ferraros.

Before 1958, a solid chain link fence was erected along the common boundary line between the two parcels and plaintiff installed a gate at the point where the easement abuts his property. Upon commencing its tenancy in 1966, however, Ernie’s installed two gates at various points over the easement and held the only keys to the gates. Ernie’s also regraded the easement, installed lights around it, and had guard dogs patrol its premises (including the easement) at night. Additionally, from 1966 to the present, Ernie’s has parked wrecked cars over the easement and, as Supreme Court found, plaintiff has not driven a car over the easement since that time.

In 1977, plaintiff demanded that Ernie’s remove the obstructions blocking plaintiffs use of the easement and, in 1982, commenced this action to permanently enjoin Ernie’s from obstructing the easement. After a nonjury trial, Supreme Court dismissed the complaint and vacated the easement, holding that Ernie’s had extinguished the easement by adverse possession in 1976, after 10 years of continuous and exclusive use. The Appellate Division reversed, holding that the easement had not been extinguished by adverse possession in 1976 because there had been no demand by plaintiff that the obstructions on the easement be removed until 1977. That court reasoned that because plaintiff had had no occasion to use the easement, which was created by grant, Ernie’s use of the easement could not be deemed adverse to plaintiff until the demand was made. The Appellate Division also concluded that plaintiffs claim was not time barred because the cause of action accrued when plaintiff made the demand in 1977. Thus that court remitted to Supreme Court for entry of judgment in favor of plaintiff. We now reverse and reinstate the judgment of Supreme Court.

II

We have long recognized that an easement created by grant may be extinguished by adverse possession (Woodruff v Paddock, 130 NY 618 [owner of servient parcel extinguished easement by adverse use]; see also, Gerbig v Zumpano, 7 NY2d 327, 330; Hennessy v Murdock, 137 NY 317, 326; Snell v Levitt, 110 NY 595, 602). As with any adverse possession claim, the party seeking to extinguish the easement must establish that the use of the easement has been adverse to the owner of the easement, under a claim of right, open and notorious, exclusive and continuous for a period of 10 years (see, Brand v Prince, 35 NY2d 634, 636; Belotti v Bickhardt, 228 NY 296; RPAPL 501, 521; compare, Di Leo v Pecksto Holding Corp., 304 NY 505, 513 [requirements for acquisition of an easement through adverse use]; Caswell v Bisnett, 50 AD2d 672, 673; see generally, 3 Powell, Real Property, Easements and Licenses |f 424; Restatement of Property § 506 [1944]). Thus "an easement may be lost by adverse possession if the owner or possessor of the servient estate claims to own it free from the private right of another, and excludes the owner of the easement, who acquiesces in the exclusion for [the prescriptive period]” (Woodruff v Paddock, 130 NY, at 624, supra).

A narrow exception to this general rule has evolved with regard to the extinguishment of easements that have not been definitively located through use. In Smyles v Hastings (22 NY 217, 224), we held that an easement that was not so definitively located through use and which lead to a "wild and unoccupied” parcel, was not extinguished by adverse possession because the owner of the easement had had no occasion to assert the right of way during part of the prescriptive period. Relying on Smyles, the Appellate Division has held that such "paper” easements may not be extinguished by adverse possession absent a demand by the owner that the easement be opened and a refusal by the party in adverse possession (Castle Assocs. v Schwartz, 63 AD2d 481, 490; see also, Powlowski v Mohawk Golf Club, 204 App Div 200; Consolidated Rail Corp. v MASP Equip. Corp., 109 AD2d 604, 606, affd on other grounds 67 NY2d 35). In Castle, the court held that an easement created by grant as the result of a subdivision, but never located, was not extinguished by adverse possession because the owner of the easement had never demanded that the easement be opened.

The theory underlying the exception is that easements not definitively located and developed through use are not yet in functional existence and therefore the owner of the easement could not be expected to have notice of the adverse claim until either the easement is opened or the owner demands that it be opened. It is only at such point, therefore, that the use of the easement by another is deemed to be adverse to the owner and the prescriptive period begins to run (Powlowski v Mohawk Golf Club, 204 App Div, at 204, supra). So understood, the exception is consistent with the general theory of adverse possession — "that the real owner may, by unequivocal acts of the usurper, have notice of the hostile claim and be thereby called upon to assert his legal title” (Monnot v Murphy, 207 NY 240, 245 [citation omitted]; see also, Hinkley v State of New York, 234 NY 309, 317).

The Appellate Division, applying the exception of Smyles and Castle, concluded that Ernie’s use of the easement could not be deemed adverse to plaintiff until plaintiff had occasion to use the easement and demanded that it be opened in 1977 (142 AD2d 573, 575). Unlike the easements in Smyles and Castle, however, plaintiff’s easement was definitively located through use long before 1977. The easement was created in 1954 when the Masones subdivided their land and conveyed the dominant parcel now owned by plaintiff along with the easement. Plaintiff’s deed locates the easement, which runs east to west, at the northern 50 feet of the servient parcel now owned by the Ferraros and the record reveals that the easement was used by plaintiff’s predecessors as a means of access to Broadway before the commencement of Ernie’s tenancy. Moreover, the prescribed course of the easement was later paved and regraded by Ernie’s. Since the easement was definitively and functionally in existence both before Ernie’s closed it off in 1966 and during the period of Ernie’s use, the exception of Smyles and Castle has no application here. Indeed, to impose a demand requirement for the extinguishment of a definitively located and usable easement would allow the exception to swallow the general rule that the period of prescription begins to run when a party acting under a claim of right commences a use of the easement that is adverse to its owner (cf., Filby v Brooks, 105 AD2d 826, affd on other grounds 66 NY2d 640).

The dispositive question, then, is whether Ernie’s use of the easement operated to extinguish plaintiff’s rights therein: was the use adverse to plaintiff, under a claim of right, open and notorious, exclusive and continuous throughout the 10-year prescriptive period? The record compels an affirmative answer. Upon the commencement of its tenancy in 1966, Ernie’s erected gates across the easement and locked them after business hours when Ernie’s had guard dogs patrol its premises, including the easement. Ernie’s also paved and regraded the easement, installed lights around it, and from 1966 to the present parked wrecked cars over the easement. Rejecting plaintiff’s claims to the contrary, Supreme Court found that the "credible evidence” established that Ernie’s exercised exclusive use over plaintiff’s easement since 1966 and that plaintiff, his agents and employees have not used the easement since that time. This finding, affirmed by the Appellate Division and having support in the record, is beyond our review (Laufer v Ostrow, 55 NY2d 305, 311-312). In these circumstances, Ernie’s exclusive use of the easement was under an apparent claim of right and was open and notoriously adverse to plaintiffs interest in the easement for an uninterrupted period of at least 10 years (see, Woodruff v Paddock, 130 NY 618, supra). Therefore, Ernie’s must be deemed to have extinguished plaintiffs easement by adverse use in 1976 at the end of the 10-year period.

Plaintiffs contention that Ernie’s lacked standing to assert its adverse possession claim because it was the lessee rather than the owner of the servient parcel must also be rejected. Ernie’s use of plaintiffs easement is not an assertion of an interest hostile to its landlord. By statute such a use could not be deemed adverse (see, RPAPL 531). Rather, Ernie’s use is adverse only to plaintiff and that use satisfied the requirements of adverse possession and operated to extinguish that easement. Ernie’s may enjoy the benefit of the extinguished easement during its tenancy and, under settled principles, that benefit will be presumed to inure to the landlord upon the expiration of the tenancy (Dempsey v Kipp, 61 NY 462, 470; Risi v Interboro Indus. Parks, 99 AD2d 466).

Plaintiffs easement having been extinguished in 1976, we need not reach Ernie’s alternate argument that this action to remove an obstruction from the easement was barred by the Statute of Limitations.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

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

Order reversed, etc.

       The Appellate Division also rejected Ernie’s arguments that plaintiff had abandoned the easement and that plaintiff should be estopped from enforcing the easement. Ernie’s has not advanced either of these arguments in this court.