author: Jasen, J.

text:
    State of New York, Appellant, v Earl H. Lundin et al., Defendants, and William B. Heller et al., Respondents. Penn York Construction Corp., as Successor to FosterLipkins Corp., et al., Third-Party Plaintiffs-Respondents, v Peter Bratti Associates, Inc., et al., Third-Party Defendants-Respondents.
    Argued October 18, 1983;
    decided December 1, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Richard J. Dorsey and Peter H. Schiff of counsel), for appellant.

      Nancy Kilson and Edward N. Costikyan for William B. Heller, respondent.

      James L. Fischer for Robert L. Thorson and another, respondents.

      Frederick Cohen and Andrea Popik Taber for Penn York Construction Corp. and others, defendants and third-party plaintiffs-respondents.

      Denis B. Frind for Peter Bratti Associates, Inc., third-party defendant-respondent.

      Donald P. Ford, Jr., for S. R. Beltrone, Inc., third-party defendant-respondent.

      Michael S. Torre and Lester M.A. Gulitz for Georgia Marble Company, third-party defendant-respondent.

      Alvin Goldstein for George A. Fuller Company, third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

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

In a suit by a construction project owner against a general contractor and architect for defective construction and design, the cause of action generally accrues upon the completion of construction, meaning completion of the actual physical work. Application of that well-established principle cannot be avoided in this case by the two arguments advanced by appellant, the owner.

First, for Statute of Limitations purposes the date of the final certificate is not controlling. In the contract before us, responsibility for issuance of the final certificate rested with the owner, which sets this case apart from Board of Educ. of Tri-Valley Cent. School Dist. v Celotex Corp. (88 AD2d 713, affd 58 NY2d 684). Where, as in Tri-Valley, the contract requires the architect to conduct inspections to determine completion dates and issue a final certificate, issuance of that certificate represents a significant contractual right of the owner and concomitant obligation of the architect. The architect’s issuance of the certificate marks the completion of its performance and the point when the Statute of Limitations starts to run for a breach of its contractual undertaking. However, that same result does not obtain when the owner itself controls issuance of the final certificate. The final certificate in such circumstances may indicate the owner’s acceptance of the work for purposes of contractual guarantees or equitable price adjustments, but it does not represent completion of the contractual obligations of the architect or general contractor for purposes of triggering the Statute of Limitations.

Second, construction may be complete even though incidental matters relating to the project remain open. Continuation of the owner’s relationship with the architect and contractor beyond July 31, 1973 — the key Statute of Limitations date — will not of itself serve to extend construction completion. With respect to the architect, the ongoing relationship related to postconstruction price negotiations, and not performance of its contractual duties. There is no indication in this record that the architect was asked to participate in any final inspection, and such inspection was in any event the responsibility of the owner’s project manager. While the architect submitted a bill during 1974 for unspecified services in the amount of $263.58, given the magnitude of the project and the other undisputed facts such a minimal amount of work, even if performed after July, 1973, could not alter the fact that the project was demonstrably complete before July, 1973.

Similarly, with respect to the contractor, the relationship after July, 1973 concerned prices to be paid for work already completed and not further construction. While the amount of $175 worth of interior trim on the project was held open beyond July, 1973, this did not reflect a lack of construction completion but related to the process for making equitable adjustments. Appellant emphasizes that on certain forms the contractor indicated that final payroll periods for itself and its subcontractors ended on dates after July 31, 1973. These forms however, do not specify that any work was actually done after July 31, 1973, and there is no evidence that any work was done; no amounts are charged to appellant on these forms. Finally, appellant argues that the contractor did not certify the change order work as 100% complete until Payment Application No. 78, which covered the period ending July 31,1973, six years to the day before the summons was served on the contractor. But the previous application for payment, covering a period ending May 15, 1973 (No. 77), indicated that the change order work was already 99% complete, leaving only a small amount which was done between May 15 and July 31.

To be measured against these arguments are the uncontested facts that long prior to July, 1973 appellant had fully occupied the building in suit, it had assumed responsibility for building security, and it had permitted fire and liability insurance carried by the contractor to be canceled. Given these facts, it is significant that in all the volumes of affidavits and exhibits submitted to us, including the affidavit of appellant’s assistant construction director fully familiar with the project, there is no mention of any actual ongoing construction after July 31, but only paperwork relating to price adjustments and other incidental matters from which it is surmised that construction continued.

On the point that construction was complete before July 31, 1973, there is no genuine triable issue of fact.

Jasen, J.

(dissenting). The majority today holds that the State’s claim arising out of the allegedly defective construction of the Empire State Plaza in Albany is time barred, as a matter of law, even though the record is fraught with evidence to the contrary. In other words, the result of today’s holding is that the State is not entitled to its day in court because the majority finds that it is beyond dispute that the construction was completed more than six years prior to the State’s commencement of this action, despite the evidence in the record — much of it prepared and certified by defendants’ architects and contractor — that the construction was actually incomplete on the majority’s estimated date of completion and, in fact, continued for more than one year thereafter. I would reverse the order of the Appellate Division granting defendants’ motions for summary judgment and would remit this case to Supreme Court for a hearing on the facts to determine the date on which construction of the Empire State Plaza was actually completed.

The State brought this action on July 31,1979 to recover damages for breach of contract, specifically alleging improper design, installation and supervision thereof of the marble facing to the Swan Street building. Defendants are the architects whose contractual obligations included the planning, design and supervision of the installation of the marble; the successor to the primary contractor whose duties included attaching the marble; and the sureties who issued performance bonds with the contractor as principal. Defendants contend that the construction of the Plaza had been completed more.than six years prior to the commencement of this action and, consequently, the Statute of Limitations had expired. The State, on the other hand, argues that its cause of action did not accrue until the final certificate of acceptance was issued and, in any event, work under the contract actually continued for a considerable time after defendants’ alleged completion date.

Supreme Court granted defendants’ motions for summary judgment, holding that the construction was completed at some undetermined time prior to July 31, 1973. The Appellate Division affirmed, again without determining a date of completion, and the majority today does likewise, holding that there is no evidence in the record that construction continued beyond July 31, 1973. While I agree that the mere formal issuance of a final certificate of acceptance by the State is not dispositive in this case, I also believe that there is more than sufficient evidence in the record supporting the State’s contention and thereby raising a question of fact whether construction continued on or after July 31, 1973 and, consequently, whether the State’s action was timely.

As we have consistently repeated, summary judgment is a drastic remedy and should not be granted whenever there is “any doubt” as to the existence of a factual issue (Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57, 61; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404) or whenever a factual issue is “arguable” (Barrett v Jacobs, 255 NY 520, 522) or whenever the court must engage in factual “issue-determination” rather than “issue-finding” (Sillman v Twentieth Century-Fox Film Corp., supra, at p 404). Inasmuch as summary judgment was granted below, the only question to be resolved on this appeal is whether there may be found in the papers presented on the motion a material and triable issue of fact. In my view, such an issue is clearly presented in the record with regard to the completion date of the construction and, therefore, summary judgment is improper.

It is settled, as the majority so states, that a cause of action for defective construction and design accrues upon actual physical completion of the work (Sears, Roebuck & Co. v Enco Assoc., 43 NY2d 389, 394; Sosnow v Paul, 36 NY2d 780, 782) and is governed by the six-year Statute of Limitations (CPLR 213, subd 2; Sears, Roebuck & Co. v Enco Assoc., supra, at p 395; Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669, 673). This action having been commenced on July 31, 1979 would, therefore, be barred only if physical construction of the Empire State Plaza had actually been complete prior to July 31, 1973. A review of the record clearly discloses evidence that actual physical construction continued for some time thereafter.

As late as December 9,1974, the architects entered into a fifth supplemental agreement with the State providing for additional compensation to be paid to the architects for additional supervisory services which were in excess of the previously estimated requirements. Moreover, this agreement was specifically made a part of the original contract and did not constitute a new arrangement between the parties. Its language is clear that “the Original Agreement, the First Supplemental Agreement and the Second, Third and Fourth Supplemental Agreements shall in all respects be and remain in full force and effect and binding upon the parties.” Apparently pursuant to that agreement, the architects submitted a voucher on December 27, 1974 for payment for supervisory “services rendered * * * August 5, 1974 — November 10, 1974.” In the “Payroll Detail” submitted with that voucher, the architects specified the name of their representative who performed the services, the rate and the total amount charged, and the number of hours worked for each of the four two-week periods involved. The architects specified, for instance, that they rendered 13 hours of supervisory services for the two-week period ending October 2, 1974 and five and one-half additional hours for the period ending November 10, 1974. Each of these time periods is, of course, more than one year subsequent to the majority’s estimated date of completion and considerably less than six years prior to the commencement of the State’s action. Additionally, notwithstanding the majority’s labeling of the total amount charged as nominal, it is significant that the $263 was payment solely for supervisory services. Indeed, something must have been supervised. The voucher thus prepared and submitted by the architects clearly evinces not only the continuing supervisory work on the construction project, but it also necessarily indicates the presence of some other ongoing work being supervised as late as November 10, 1974. In fact, correspondence between the State, the architects and the contractor as late as April 16, 1973 indicates that work still remained to be performed and supervised involving the proper attachment of the marble facing.

With regard to the primary contractor and its subcontractors, the evidence is even more substantial. The record contains affidavits executed by the contractor and its subcontractors which support the State’s contention that those parties were performing construction work well beyond July 31, 1973. An affidavit prepared and submitted pursuant to section 220-a of the Labor Law (“labor affidavit”) by the contractor on May 10,1976 certifies that “work related to concrete placement, carpentry and masonry” was performed during the “payroll period which ended December 31, 1973”, and this is corroborated by the “Summary of Subcontractors” dated May 9, 1977, also prepared by the contractor, which likewise specifies December 31, 1973 as the “date last worked” on “concrete work”. Though the exact amount of work actually performed on or after July 31,1973 is unstated, the “job progress” report submitted by the contractor on July 1, 1976 indicates that the total concrete work in question amounted to several millions of dollars.

Additionally, a labor affidavit prepared by subcontractor Peter Bratti Associates, Inc., on May 3, 1976, certifies that “tile, marble, terrazzo and granite” work was performed during the period ending December 31, 1975, and again that is confirmed by the contractor’s “Summary of Subcontractors” which specifies December 31, 1975 as the “date last worked”. The total work there involved also amounted to several millions of dollars.

Another labor affidavit prepared by subcontractor Samuel Kirschner & Sons certifies that contract work on the Swan Street building was performed during the period ending April 30,1976, and again that date is corroborated by the contractor’s “Summary of Subcontractors” as the “date last worked” and is indicated to have involved a total of $260,000 worth of work.

Yet another labor affidavit, this one prepared by subcontractor Hudson Schatz Painting Co., Inc., certifies that painting work on the Swan Street building was performed during the period ending June 30, 1976, and this, too, is confirmed by the contractor’s “Summary of Subcontractors” and involved a $1,000 project.

In addition to the foregoing affidavits and allied papers, the record contains several applications for payment which likewise provide evidence that the construction work had not been completed prior to July 31,1973, but continued on and well beyond that date. On July 31,1973, the contractor prepared a certified application for payment for work performed during the “work period ending July 31,1973” and specified in the attached schedule of “approved change orders” that “100”% of the related compensation had been “earned” since the previous work period (May 15, 1973) and amounted to more than $50,000 — excluding equitable adjustments and reduction of the retainage.

On May 21, 1974, the contractor prepared another certified application for payment, this time stating that $163,000 worth of work was performed during the work period ending on that date and specified in the attached schedule of “approved change orders” that “100”% of that amount was “earned” subsequent to the last period (i.e., July 31, 1973).

On June 30,1975, the contractor certified in yet another application for payment that $25,000 worth of work had been performed during the work period ending on that date, and again specified that “100”% of the amount had been “earned” since the previous work period (i.e., November 30,1974). And, once more, on May 9,1977, still another amount of work, albeit only $175 worth, was certified by the contractor to have been earned during the work period ending July 1, 1976.

None of the afore-mentioned amounts earned include reductions in retainage or equitable adjustments which were also indicated on each of the applications for payment. Rather, all of the foregoing represent work which the contractor certified actually to have been performed during the respective periods specified. In each instance, the time period was specified to be on or subsequent to July 31, 1973, thereby supporting the State’s contention that the construction was indeed not complete by that time. Moreover, the contractor did not even submit a request for final payment until almost three years thereafter, on April 8, 1976.

Finally, all of the foregoing affidavits, certificates and other papers prepared by the architects, contractor and subcontractors are further supported in the record by affidavits submitted by the State in opposition to defendants’ motions for summary judgment. The affidavits of two individuals fully familiar with the facts and circumstances surrounding this claim, John C. Byron, the assistant director of South Mall Construction for the State of New York, and Carlo O. D’Arcangelis, former equitable adjustment claims analyst for the State, both extensively corroborate the contents of the papers just outlined.

From the foregoing, it is clear to me that there is adequate evidence in the record, not only of incidental work or postconstruction price negotiation, but of actual physical performance of contractual duties on and subsequent to July 31, 1973, to warrant a hearing. Moreover, the monetary amounts and the related work which are evinced in these papers are hardly minimal and clearly not limited to mere adjustments of compensation claimed. No amount of speculation can erase this evidence from the record — most of it prepared by the defendants contractor and subcontractors themselves — or dissolve the question of fact which has been raised. To the extent that the record may also disclose some contrary evidence, that simply denotes that a factual issue has been presented; it does not form the basis for summary judgment. Consequently, a question of fact exists whether the actual physical construction was completed by July 31, 1973, thereby time-barring the State’s action. That genuine and triable issue having been raised on the record before us, defendants’ motions for summary judgment should not have been granted.

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur; Judge Jasen dissents and votes to reverse in an opinion.

Order affirmed, with costs, in a memorandum.

       The dissent relies on what we would characterize as payment applications, concluding that they represent work done after July 31,1973. But the differences in the amounts listed on the applications are explained by equitable adjustments, supplemental agreements and retainage — all of which concerned additional moneys to be paid rather than work performed.

       Contrary to the statement contained in the footnote of the majority’s memorandum, I do not rely on any equitable adjustments or retainage; rather, all the amounts relied on in the payment application expressly reflect compensation “100”% “earned” subsequent to the prior payroll periods listed.


source: Caselaw Access Project

license: Public Domain

text:
    Huntington Mining Holdings, Inc., Formerly Known as Huntington Mining & Realty World, Ltd., Appellant, v Cottontail Plaza, Inc., Respondent.
    Decided December 1, 1983

      APPEARANCES OF COUNSEL

      Albert R. Pincus and Michael D. Solomon for appellant.

      Andrew J. Connick for respondent.
   OPINION OF THE COURT

Memorandum.

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

Though defendant seller’s anticipatory breach of contract relieved plaintiff purchaser of its obligation to tender performance, this did not discharge plaintiff’s obligation to show that it was ready and able to perform its own contractual undertakings on the closing date, in order to secure specific performance. (Stawski v Epstein, 67 AD2d 681; Friederang v Aldo Co., 199 App Div 127.) Plaintiff insists that, while it lacked its own funds to purchase the property on the scheduled closing date, it was nonetheless able to perform because it had obtained a commitment from another person. However, as the Appellate Division found, this person was not asked for financing until nearly a year after the anticipated closing, and plaintiff failed to produce any other evidence of its capacity to perform. Specific performance was therefore inappropriate.

Since there has already been a trial upon stipulated facts and extensive deposition testimony, and no trial errors are alleged, there is no occasion for a further hearing on the issue of plaintiff’s ability to perform, as plaintiff requests.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Norman Howard, Appellant.
    Argued October 20, 1983;
    decided December 1, 1983

      APPEARANCES OF COUNSEL
    A. Irene Elliott for appellant.

      Elizabeth Holtzman, District Attorney (Lisa Margaret Smith and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The charge on recent and exclusive possession was not error. The circumstances of the case were such that defendant was either guilty of stealing from the complainant or guilty of nothing. Unlike People v Baskerville (60 NY2d 374), there was, therefore, no need to charge with respect to the crime of possession of stolen property, there being no reasonable view of the evidence under which defendant was guilty only of that crime.

Nor was the evidence of identification insufficient. Although the officers and complainant briefly lost sight of defendant during the chase, complainant pointed out the person being chased to the police as the robber and the officer identified the person apprehended as the person pointed out to him. That together with defendant’s possession of complainant’s property was sufficient to present a jury issue on identification.

The statement made by defendant at the time of arrest was clearly spontaneous, having resulted from the officer’s response to defendant’s question and that response having been a simple statement of fact, not provocative in any sense (People v Rivers, 56 NY2d 476; People v Lynes, 49 NY2d 286; cf. People v Lanahan, 55 NY2d 711).

Defendant’s remaining contentions have been examined and found without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Jack C. Fadale, Appellant.
    Argued October 27, 1983;
    decided December 1, 1983

      APPEARANCES OF COUNSEL

      John A. Ziegler, Joseph B. Mistrett and Rose H. Sconiers for appellant.

      Richard J. Arcara, District Attorney {John J. De Franks of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (92 AD 2d 723).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


author: Chief Judge Cooke

text:
    Edward M. Normile, on Behalf of Himself and All Others Similarly Situated, Appellant, v Allstate Insurance Company, Respondent.
    Argued October 18, 1983;
    decided December 1, 1983

      APPEARANCES OF COUNSEL

      Maurice P. O’Brien for appellant.

      Charles Platto, William E. Hegarty, Susan Buckley, Kevin J. Burke and Peter H. Bouman for respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (87 AD2d 721).

Concur: Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye. Chief Judge Cooke dissents and votes to reverse in an opinion.

Chief Judge Cooke

(dissenting). I respectfully dissent. The result reached by the majority, in affirming, allows insurers to avoid their primary responsibility for compensating for basic economic loss, and leaves innocent persons in a position whereby they may be unable to obtain full compensation for their injuries.

Plaintiff was injured while riding a motorcycle in September, 1977. As a result, he incurred extensive medical bills and lost income from work. In September,. 1978, he received a retroactive Social Security disability payment and began receiving regular disability payments. In January, 1980, plaintiff required further surgery, but defendant refused to pay on the ground that plaintiff had received the full amount of first-party benefits to which he was entitled. As eventually stipulated, this was calculated in the following manner:

Actual Payments

Medical Expenses $34,391

Lost Income

6,656

Credit “Payments”

20% Setoff 3,398

Social Security Setoff 6.937

$51,382

Defendant, which disbursed only $41,047 of its own funds, justified its position by referring to section 671 (subd 2, par [b]) of the Insurance Law. This provision authorizes an insurer to deduct from payments for “basic economic loss” (see Insurance Law, § 671, subd 1) amounts recovered or recoverable as Social Security disability benefits or workers’ compensation benefits. Defendant contends, and the majority accepts, that these credits may be used to reduce the insurer’s aggregate liability for basic economic loss, which may not exceed $50,000.

This approach falters because it assumes that these payments from other, “collateral” sources must be allocated to compensation for basic economic loss, a result not mandated by the statute. Rather, it must be recognized that the specified types of damages that are elements of basic economic loss may exceed $50,000 in amount and constitute extra losses not covered by no-fault insurance that may be recovered in a third-party lawsuit (see Insurance Law, § 673, subd 1).

The entire matter should be treated as simply a question of allocating all compensatory funds received by an insured. By law, all automobile insurance policies must provide for payment of first-party benefits (Insurance Law, § 672, subd 1). It is the insurance company, therefore, that always has the primary obligation to satisfy claims for basic economic loss. The purpose of section 671 (subd 2, par [b]) is to allow insurers to be relieved of their burden to the extent that an insured receives compensation from collateral sources and does not have legitimate unpaid claims for damages that could be attributed to basic economic loss. This provision allows the insurance company to reduce its payments as claims are made by deducting collateral-source payments, thereby avoiding an insured’s obtaining a double recovery. As legitimate claims are progressively made, the insurance company will continue to credit the collateral-source payments, but it must satisfy any unpaid claims that would fall within the definition of “basic economic loss” until the insurer’s aggregate payments equal $50,000.

Requiring the insurance company to pay a full $50,000 in first-party benefits regardless of any collateral-source payments does not defeat the Legislature’s intent to reduce insurance costs. The provision for deductions simply allows the insurer to reduce its payments without reducing its over-all coverage. How this results in savings for the insurer is shown in the following example.

Example 1. As a result of an automobile accident, an insured, A, is seriously injured and unable to return to work for 15 months, with a loss of gross income of $1,250 per month. Medical expenses amount to $30,000. With the 20% reduction for lost wages under section 671 (subd 2, par [a]), A is entitled to $1,000 per month in first-party benefits (see Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451). A^also receives $200 per month in workers’ compensation benefits, so the insurer would pay only $800 per month. Over the 15 months, A would receive a total of $45,000:

Medical Benefits $30,000

Lost Wages 12,000

Workers’ Compensation Benefits 3.000

$45,000

What is immediately apparent is that the insurance company has gained because it has not been required to pay the full amount of first-party benefits, but has saved $3,000 by virtue of the payment of workers’ compensation benefits. And, of course, it has received the benefit of the 20% reduction in lost gross wages, which amount — $3,750 — will have to be borne by A. Finally, there is the general benefit obtained from no-fault insurance arising from the avoidance of litigation.

The basic theory of plaintiff’s approach is quite simple. Recognizing that medical expenses and loss of income, for example, may easily exceed $50,000, it only requires that collateral-source payments are to be allocated first to the top end, i.e., those damages exceeding $50,000. This can be illustrated by analogy. An insured’s losses are represented by a long, vertical tube that is closed at the bottom. These losses are compensated by payments from the insurer — represented by a heavy, blue liquid — and from collateral sources — represented by a lighter, red liquid. There is only enough blue liquid to reach the $50,000 mark on the vertical tube. Being “heavier,” the insurance company’s payments will always sink to the tube’s bottom below the collateral-source payments as they both are poured in. Consequently, the insurance company’s payments are always allocated to “basic economic loss.” If there were claims for $75,000 and $25,000 was paid by collateral sources, those payments (the lighter, red liquid) would be “floating” on top of the insurer’s payments.

In effect, this method allows an insurer to take credit for collateral-source payments only to the extent that they do not cover claims in excess of $50,000. If, for example, the insured’s claims total $55,000 and he or she has received $7,000 from collateral sources, the insurer can reduce its payments only by $2,000, that being the amount of collateral-source payments in excess of claims greater than $50,000. In this situation, the insurer’s remaining exposure would be $2,000, which would have to be paid if a new claim is made and there are no further collateral-source payments. Of course, when the insured’s aggregate claims are less than $50,000, then the insurance company may take full credit for the collateral-source payments (see Example 1 above). It bears repeating that this credit may not also be taken to reduce the insurer’s over-all exposure.

The unfairness of the majority’s approach manifests itself when the insured’s losses aggregate more than $50,000 and collateral-source payments are involved. When the insured then sues to recover damages in excess of basic economic loss, the collateral source will have a lien that will reduce the amount of the judgment actually received (see, e.g., Workers’ Compensation Law, § 29, subd 1). When the insurer has also deducted these payments from its over-all liability, the insured will be left with less than a complete recovery. This is demonstrated in the following hypothetical situation.

Example 2(A). Assume the same facts as Example 1, but A’s injuries keep him out of work for 25 months, rather than 15. If the approach suggested by defendant and adopted by the majority is used, A is unable to recover all of his losses. Deducting at once the $30,000 in medical bills from first-party benefits, there remains a $20,000 “fund” for payments for other basic economic loss resulting from lost income. At $800 per month, this would be exhausted in 25 months. Under the majority’s method of allocation, however, the insurance company is not only able to reduce its monthly payments by the $200 paid by workers’ compensation, but the insurer may also credit these collateral-source payments against its aggregate liability. Thus, the $20,000 “fund” is exhausted after just 20 months. When A returns to work after 25 months, he will have received the following:

Medical Benefits $30,000

Lost Wages 16,000

Workers’ Compensation Benefits 5,000

$51,000

A’s actual losses would be:

Medical Bills $30,000

Lost Gross Income 31,250

$61,250

In a third-party lawsuit, A could recover $11,250, the excess over $50,000. The workers’ compensation lien, not including the setoff for costs and attorneys’ fees, would be $5,000 (see Matter of Kelly v State Ins. Fund, 60 NY2d 131), leaving a net recovery from the lawsuit of $6,250. When this is added to the $51,000 already received by A, he would have obtained compensation for only $57,250, $4,000 less than his actual damages. This inequity is compounded when it is recognized that the insurer has actually paid only $46,000. Thus, the injured party has not had a full recovery and the insurer has avoided meeting the full obligation expected of it.

Example 2(B). A different result occurs when payments are calculated under the approach championed by plaintiff, for A is able to recoup all of his losses. By this method, the $200 paid by workers’ compensation is deducted only from the insurer’s monthly payments, but not from its aggregate liability. Thus, the $20,000 “fund” is not exhausted until 25 months have passed. When A returns to work at that time, he will have received the following:

Medical Benefits $30,000

Lost Wages 20,000

Workers’ Compensation Benefits ' 5,000

$55,000

A’s actual losses again would be $61,250 and the workers’ compensation lien would be $5,000, so that a third-party lawsuit would still yield a net recovery of $6,250. When this is added to the $55,000 already received by A from the insurer and workers’ compensation, A¿s total recovery is equal to his losses.

Defendant’s assertion that plaintiff’s method of calculating first-party benefits would create a shifting threshold for bringing third-party lawsuits is unfounded. The critical definition is “basic economic loss,” which is unaffected by what payments are received from what sources. If the insured suffers losses exceeding the $50,000 covered by basic economic loss, a lawsuit may be commenced regardless of the receipt of payments from collateral sources. Should the insured balk at filing suit, the insurer will probably be able to initiate litigation on its own pursuant to the subrogation clause usually found in insurance policies (see 11 NYCRR 60.3 [b]). In any event, the manner for ascertaining whether the threshold has been met for bringing suit remains fixed, as does the dollar amount of the losses.

In sum, section 671 (subd 2, par [b]) does not relieve the insurer of its statutory obligation to pay $50,000 to cover basic economic loss. Instead, it contemplates only that when an insured makes claims that fall within the meaning of “basic economic loss” and receives payments from collateral sources, the insurer may take credit for these to the extent that collateral-source payments are greater than the aggregate amount of the claims in excess of $50,000. The approach adopted by the majority today leaves seriously injured parties in a position where they may be unable to recover the full amount of their damages. I do not believe that, in its earnest desire to reduce insurance costs, the Legislature intended to work such an inequity.

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

Judgment affirmed, etc.

       It is recognized that persons other than the “insured” may receive first-party benefits under an insurance policy (see Insurance Law, § 671, subd 10; § 672, subd 1). For ease of reference, though, these will all be subsumed in the term “insured.”


text:
    Jou-Jou Designs, Inc., Appellant, v International Ladies’ Garment Workers’ Union, Local 23-25, Respondent.
    Argued October 25, 1983;
    decided December 1, 1983

      APPEARANCES OF COUNSEL

      Herman E. Cooper and Barry H. Singer for appellant.

      Stanley L. Goodman and Eric B. Chaikin for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Fritz W. Alexander at the Appellate Division (94 AD2d 395).

Concur: Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye. Judge Jasen concurs in a concurring memorandum.

Jasen, J.

(concurring). While I agree that the complaint should be dismissed because plaintiff has failed effectively to allege illegal activity falling within State court jurisdiction, I hasten to add that in the proper case, even without compliance with section 807 of the Labor Law, the courts of this State may provide compensatory damage relief for violence or threats of violence albeit incident to a labor dispute. The “ ‘[pjolicing of * * * conduct’ which consists of ‘actual or threatened violence to persons or destruction of property,’ is left to the States.” (San Diego Unions v Garmon, 359 US 236, 248, n 6, quoting International Union v Wisconsin Bd., 336 US 245, 253; Automobile Workers v Russell, 356 US 634, 638.)

Order affirmed, etc.


text:
    Linda Fleishman, Appellant, v Eli Lilly and Company et al., Respondents.
    Submitted November 21, 1983;
    decided December 1, 1983
   Motion to dismiss appeal denied.


text:
    Millicent Linden, Appellant, v Lenox Hill Neighborhood Association, Respondent. Millicent Linden, Appellant, v Lenox Hill Hospital et al., Respondents.
    Submitted November 14, 1983;
    decided December 1, 1983
   Motion, treated as one for an extension of the rule 500.9 (d) of the Rules of the Court of Appeals (22 NYCRR 500.9 [f]) time limit for presenting a motion for reargument, denied. Motion for reargument and vacatur of the Court of Appeals orders of dismissal dated May 17, 1983 and June 7, 1983 dismissed as untimely. Cross motion for an order denying plaintiff’s motion for reargument dismissed as academic. [See 59 NY2d 762, 967.]


text:
    Betty O. Muka, Appellant, v New York State Bar Association, Respondent.
    Decided December 1, 1983
   Appeal transferred, without costs to the Appellate Division, Third Department, by the Court of Appeals sua sponte. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd [b], par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    Joan Gallets et al., Appellants, v General Motors Acceptance Corporation, Respondent.
    Decided December 1, 1983
   On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


author: Chief Judge Cooke.

text:
    In the Matter of Richmond Constructors, a Joint Venture, Respondent, v Harry S. Tishelman, as Commissioner of Finance of the City of New York, Appellant.
    Argued October 20, 1983;
    decided December 15, 1983

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stanley Buchsbaum, Gale Zareko, Maurice Ravage and Charles Himmelman of counsel), for appellant.
    I. In a joint venture composed of corporations, the exemption in issue does not embrace the whole distributive share of each partner so as to exempt the entire net income of the joint venture. The plain meaning of the provision, its legislative history and its judicial construction establish that the exemption is limited to the portions of partners’ corporate net incomes which become allocable to the city as taxable corporate income pursuant to statutory allocation formulas. (Matter of Fischbach & Moore v State Tax Comm., 36 NY2d 605; Matter of Berardino v New York State Tax Comm., 78 AD2d 936; United States v Basye, 410 US 441, 411 US 940; Matter of Horchler, 37 AD2d 28, 30 NY2d 725; McGowan v Mayor of City of N. Y., 53 NY2d 86; Matter of United Artists Theatre Circuit v State Tax Comm., 52 NY2d 1013.) II. Exemption statutes are strictly construed, and any doubt as to whether a taxpayer is entitled to an exemption must be resolved in favor of the taxing authorities. (Matter of Young v Bragalini, 3 NY2d 602; Matter of Schwartzman [Miller], 262 App Div 635, 288 NY 568; People v Brooklyn Garden Apts., 283 NY 373; Matter of Board of Educ. v Baker, 241 App Div 574, 266 NY 636; Matter of Grace v New York State Tax Comm., 37 NY2d 193.)

      Jay L. Himes and Harvey Krauss for respondent. I.
    The language of the Unincorporated Business Income Tax Law provision is not susceptible of the construction that the city urges. (Commissioner of Internal Revenue v Mackin Corp., 164 F2d 527; Matter of Suffolk County Fed. Sav. & Loan Assn. v Bragalini, 5 NY2d 579; Matter of Bay View Towers Apts. v State Tax Comm., 48 AD2d 86, 40 NY2d 856; Nettleton Co. v Diamond, 27 NY2d 182, app dsmd sub nom. Reptile Prods. Assn. v Diamond, 401 US 969; Matter of Tina Marie W., 87 AD2d 988.) II. The legislative history does not support the city. (Matter of Eastern Milk Producers Coop. Assn. v Department of Agric. & Markets, 88 AD2d 149; People ex rel. Sheldon v Board of Appeals, 234 NY 484.) III. The city’s construction would create gross tax inequities and administrative chaos. IV. Matter of Fischbach & Moore is not dispositive. (Matter of Fischbach & Moore v State Tax Comm., 43 AD2d 81, 36 NY2d 605.)
   OPINION OF THE COURT

Chief Judge Cooke.

The question presented on this appeal concerns the scope of the exemption provided by section S46-9.0 of the New York City Unincorporated Business Income Tax Law as it relates to distributions of income made by an unincorporated business to its corporate partners. This court holds that an exemption under this provision is limited to the aggregate of each corporate partner’s distributive share of net income which does not exceed the partner’s “net income allocable to the city” under the New York City General Corporation Tax Law.

The New York City Unincorporated Business Income Tax Law (UBT) allows an unincorporated business to exempt from its taxable income the amounts distributed to its corporate partners as their proportionate interests in what is essentially the unincorporated business’s net income (Administrative Code of the City of New York, § S469.0, subd [2]). The statute further provides that the exemption “shall be limited to the amount which is * * * included in a corporate partner’s net income allocable to the city” (id.).

A corporate partner’s “net income allocable to the city” is the amount calculated under the New York City General Corporation Tax Law (City GCT) on which it must pay such tax. On each partner’s City GCT return, the amount of its distributive share of net income received from the unincorporated business is used in calculating and comprises a part of the partner’s “entire net income”, which may be derived from activities both within and without New York City. The computation begins with the partner’s Federal taxable income which is subject to extensive modifications (see Administrative Code, § R46-2.0, subd 8). The “entire net income” is then subjected to an allocation formula (see Administrative Code, § R46-4.0, subd 3) to determine the percentage of the corporation’s entire net income that will be allocated to the city as “taxable net income.” This amount is denominated “allocated net income” on the City GCT return and is the same as “net income allocated to the city” referred to in the limitation on an unincorporated business’s exemption (see Administrative Code, § S46-9.0, subd [2]).

Petitioner Richmond Constructors is a New York joint venture consisting of five corporate partners holding varying percentages of ownership interests. The joint venture was formed for the purpose of performing a sewer tunnel construction contract with the City of New York. In 1975, Richmond reported for purposes of the New York City UBT a net income of approximately $7,200,000, all of which was derived from the tunnel project. This net income was distributed in full to each of Richmond’s corporate partners in proportion to their joint-venture shares. Richmond claimed an exemption, pursuant to section S46-9.0, in the full amount of its 1975 net income. As a consequence, Richmond reported no taxable net income on its UBT return.

After an audit, the city discovered that on each corporate partner’s City GCT return, the allocated net income was less than the distributive share of net income each partner had received from Richmond. The city reduced the UBT exemption from the full amount of Richmond’s distributed net income to a sum equal to the aggregate of the amounts of allocated net income on each corporate partner’s City GCT, approximately $2,500,000. Richmond was assessed with a tax deficiency of approximately $190,000.

When Richmond protested, the matter was presented to a referee. Richmond argued that the limitation, referring to amounts of its net income “included in a corporate partner’s net income allocable to the city” (emphasis added), permits an exemption for any amounts considered in computing the partner’s allocated net income. Because each of the corporate partners had included its distributive share from Richmond in computing their respective allocated net incomes, Richmond contends that there should be no reduction in its claimed exemption. The city argued that the limitation provision restricts the amount of the exemption to that amount of the distributed share of net income which actually constitutes the partner’s allocated net income.

After the referee approved the city’s determination of a deficiency, Richmond instituted this article 78 proceeding. The Appellate Division annulled the city’s determination of a tax deficiency and granted Richmond’s article 78 petition, adopting Richmond’s interpretation. This court now reverses.

Under Richmond’s interpretation, the statute would read: “included in [the computation of] net income allocable to the city.” This court will not add words to a statute which has a rational meaning as written (see Matter of Fischbach & Moore v State Tax Comm., 36 NY2d 605, 609; Matter of Palmer v Spaulding, 299 NY 368, 372). Moreover, the construction of section S46-9.0 urged by Richmond would render the limitation on the exemption a nullity. The computation of allocated net income on a corporate partner’s City GCT return will necessarily include its share of the unincorporated business’s net income because that share must be reported as part of the partner’s “entire net income.” Thus, an unincorporated business would always be able to exempt the full amount of its distributions to corporate partners. This interpretation of the statute must be rejected under one of the basic canons of statutory construction, that, where possible, every term of a statute should be given meaning (see Rosado v Wyman, 397 US 397, 415).

A logical interpretation of the plain words of the exemption provision indicates that the exemption is limited to the aggregate of the amounts of each corporate partner’s distributive share which is not greater than its allocated net income. The apparent object of the exemption provision is to avoid double taxation of the distributed share of net income earned by an unincorporated business in New York City (cf. L 1949, ch 387 [Tax Law, § 386-f], as amd by L 1960, ch 564 [Tax Law, § 709, subd (2)]; Dept of Taxation and Finance Memorandum of April 7,1960 on Assem Intro No. 4629, Print No. 5303; Dept of Taxation and Finance Memorandum, NY Legis Ann, 1949, pp 300-301). Richmond claims that the statutory construction of the exemption provision urged by the city would violate this purpose and subject the distributive shares to double taxation: once, as each partner’s allocated net income under the City GCT; and, again, as the unincorporated business’s taxable net income under the UBT. As will be demonstrated, the approach adopted avoids double taxation.

In cases where a corporate partner has other sources of income and its allocated net income is greater than the amount of its distributive share, it is readily apparent that the partner’s entire distributive share may be exempted by the unincorporated business because the full amount of the distribution is “included in” the corporate partner’s allocated net income. In such a case, the amount of the unincorporated business’s net income which was distributed to the partner has been taxed once in full by the city through the City GCT. When this is true for each corporate partner, the full amount of income earned by the unincorporated business will be taxed through the City GCT. Accordingly, under subdivision (2) of section S46-9.0, the unincorporated business may reduce its taxable income for UBT purposes by the full amount of income it distributed to its corporate partners thereby avoiding double taxation.

In situations such as presented here, where the amount of allocated net income is less than the amount of the distributive share, the limitation will prevent the unincorporated business from claiming as an exemption that amount of the distributive share which is in excess of allocated net income. For example, if the distributive share were $10,000 and the corporate partner’s allocated net income were $6,000, the unincorporated business’s exemption would be limited to $6,000, which would be the amount of distributed net income “included in [the] corporate partner’s net income allocable to the city” (Administrative Code, § S46-9.0, subd [2]). Under any other interpretation, a portion of an unincorporated business’s net income distributed to its corporate partners would not be subject to city taxation at all because each partner would only be paying corporate tax on the amount of its allocated net income, which was less than its distributive share. The unincorporated business, however, would have exempted from its net income the entire amount it distributed, leaving it with no UBT liability. Thus, Richmond’s claimed exemption was properly reduced by the city.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the petition dismissed.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Judgment reversed, etc.

      . The exemption is for “the amount of the partner’s proportionate interest in the excess of the unincorporated business gross income over the deductions allowed under sections S46-6.0 and S46-8.0” (Administrative Code, § S46-9.0). Section S46-6.0 provides deductions for, inter alia, charitable contributions and net operating losses. Section S468.0 provides for some deductions not subject to allocation, such as for reasonable compensation for personal services with certain limitations, and depreciation of specified property.

      . “[N]et income allocable to the city” (see Administrative Code, § S46-9.0) generally will be referred to as allocated net income throughout this opinion.


text:
    The People of the State of New York, Respondent, v Lenny Harris, Appellant. The People of the State of New York, Respondent, v Carl Lewis, Appellant. The People of the State of New York, Respondent, v William Ramsey, Appellant. The People of the State of New York, Appellant, v Hermino Vargas, Respondent. The People of the State of New York, Appellant, v Miguel Alicea, Respondent. The People of the State of New York, Respondent, v Angelo Burgo, Appellant.
    Argued October 27, 1983;
    decided December 15, 1983

      POINTS OF COUNSEL

      David P. Greenberg, Donald W. Searles and William E. Hellerstein for appellant in the first above-entitled case.
    I. The People failed to prove beyond a reasonable doubt that appellant’s plea of guilty to a felony, which supported his sentence as a second felony offender, was knowingly and voluntarily entered, where the sentencing court failed to advise him of his privilege against self incrimination, and where the record did not otherwise reveal appellant’s actual knowledge of that right. (Burgett v Texas, 389 US 109; North Carolina v Alford, 400 US 25; Boykin v Alabama, 395 US 238; People v Thompson, 60 AD2d 765; California v Prysock, 453 US 355; McCarthy v United States, 394 US 459; People v Nixon, 21 NY2d 338, cert den sub nom. Robinson v New York, 393 US 1067; Matter of Chaipis v State Liq, Auth., 44 NY2d 57; People v Parker, 57 NY2d 136; People v Rodriguez, 50 NY2d 553.) II. The sentencing court was without authority to adjudicate appellant a second felony offender where the People failed to file a written predicate felony statement as mandated by CPL 400.21, and where counsel refused to waive appellant’s right to such a written statement. (People v Bryant, 47 AD2d 51; People v Bush, 74 AD2d 927; People v Owens, 58 AD2d 898; United States v Noland, 495 F2d 529, 419 US 966; Oyler v Boles, 368 US 448; Wolff v McDonnell, 418 US 539; Gagnon v Scarpelli, 411 US 778; Morrissey v Brewer, 408 US 471; People v Rosen, 208 NY 169; People v Sickles, 156 NY 541.)

      David P. Greenberg and William F. Hellerstein for appellants in the second and third above-entitled cases.
    The prosecution failed to fulfill its burden of proving appellants’ predicate guilty plea convictions constitutional beyond a reasonable doubt, where (a) in appellant Ramsey’s case the court taking the plea failed to advise appellant of his rights to remain silent and to confront prosecution witnesses, where (b) in appellant Lewis’ case the court taking the plea failed to advise appellant of his right to remain silent, and where the prosecution has not adduced any other proof that either appellant knew of and understood the unmentioned rights. (Boykin v Alabama, 395 US 238; People v Lasky, 31 NY2d 146; People v Thompson, 60 AD2d 765; People v Pruitt, 83 AD2d 872; Burgett v Texas, 389 US 109; People v Mangiapane, 87 AD2d 851.)

      Robert M. Morgenthau, District Attorney (Mark Dwyer, Robert Pitler and Curtis E. Hall of counsel), for respondent in the first, second and third above-entitled cases.
    I. Defendants’ prior guilty pleas were constitutionally obtained. (People v Francis, 38 NY2d 150; People v Nixon, 21 NY2d 338, cert den sub nom. Robinson v New York, 393 US 1067; Boykin v Alabama, 395 US 238; Brady v United States, 397 US 742; Perry v Vincent, 420 F Supp 1351, 553 F2d 94; North Carolina v Alford, 400 US 25; United States v Vallejo, 476 F2d 667; Wade v Coiner, 468 F2d 1059; Stinson v Turner, 473 F2d 913; People v Lewis, 94 AD2d 670.) II. Defendant Harris’ case should not be remanded for the filing of a predicate felony statement, since Harris was aware of the People’s position that he was a predicate felon, and since Harris admitted that he had been convicted of the prior felony. (People v Esteves, 41 NY2d 826; People v Burke, 39 NY2d 729; People v Bryant, 47 AD2d 51; People ex rel. Colon v Reid, 70 AD2d 893, 48 NY2d 602; People v Provost, 76 AD2d 944; People ex rel. Ryan v Smith, 50 AD2d 1078.)

      Mario Merola, District Attorney CAnthony R. Dellicarri and Billie Manning of counsel), for appellant in the fourth above-entitled case.
    The sentencing court erred in finding that the 1973 conviction of defendant Vargas had been unconstitutionally obtained and in not sentencing him as a second felony offender. (Santobello v New York, 404 US 257; Brady v United States, 397 US 742; Kercheval v United States, 274 US 220; People v McGrath, 43 NY2d 803; People v Frederick, 45 NY2d 520; People v Miller, 42 NY2d 946; People v Nixon, 21 NY2d 338; People v Delaney, 48 NY2d 972; People v Abbott, 113 Misc 2d 766; People v Bonk, 83 AD2d 695.)

      Elizabeth Holtzman, District Attorney (Rebecca J. Clement, Barbara D. Underwood and Michael J. Halberstam of counsel), for appellant in the fifth above-entitled case.
    The prior conviction of defendant Alicea on a plea of guilty was constitutionally sound and the trial court properly sentenced defendant as a second felony offender based on this conviction. (People v Pruitt, 83 AD2d 872; People v De

      Berry, 73 AD2d 652; Boykin v Alabama, 395 US 238; Brady v United States, 397 US 742; United States v Tursi, 576 F2d 396; Kloner v United States, 535 F2d 730, 429 US 942; Davis v United States, 470 F2d 1128; Wade v Coiner, 468 F2d 1059; United States v Caston, 615 F2d 1111, 449 US 831; Scranton v Whealon, 514 F2d 99, 423 US 896.)

      Karen Goldstein and William E. Hellerstein for respondents in the fourth and fifth above-entitled cases.
    The People failed to prove beyond a reasonable doubt that each respondent’s plea of guilty to a felony, which supported his sentence °as a second felony offender, was knowingly and voluntarily entered, where, at the plea, the court failed to advise him of his right to confront witnesses and his privilege against self incrimination, and where the record did not otherwise reveal respondent’s actual knowledge of those rights. (Burgett v Texas, 389 US 109; People v Lasky, 31 NY2d 146; People v Thompson, 60 AD2d 765; Boykin v Alabama, 395 US 238; People v Pruitt, 83 AD2d 872; People v Womble, 40 AD2d 773; People v Bonk, 83 AD2d 695; People v Mobil Oil Corp., 48 NY2d 192.)

      Andrew C. Fine and William E. Hellerstein for appellant in the sixth above-entitled case.
    I. By their pronounced imbalance as well as their burden-shifting and burden-diminishing language, the court’s original and supplemental instructions on reasonable doubt eviscerated the prosecution’s constitutionally mandated burden of proof, thereby depriving appellant of due process. (Jackson v Virginia, 443 US 307; Matter of Winship, 397 US 358; People v Bell, 38 NY2d 116; United States v Hughes, 389 F2d 535; United States v Guglielmini, 384 F2d 602; People v Sharp, 71 AD2d 1034; People v Ortiz, 92 AD2d 595; People v Fox, 72 AD2d 146; People v Cavallerio, 71 AD2d 338; People v Tyler, 54 AD2d 723.) II. The prosecution failed to prove appellant’s 1979 predicate guilty plea felony constitutional beyond a reasonable doubt, where the sentencing court had failed to advise him that his plea entailed a waiver of his privilege against self incrimination, and where the prosecution adduced no other proof that appellant knew or understood this right.

      Robert M. Morgenthau, District Attorney CMark Dwyer and Vija Kemanis of counsel), for respondent in the sixth above-entitled case.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. Defendant’s prior guilty plea was constitutionally obtained. (Boykin v Alabama, 395 US 238.) III. Defendant did not properly preserve for review his objections to the trial court’s instruction on reasonable doubt. If his arguments are reviewed, the reasonable doubt charge was proper. (People v Thomas, 50 NY2d 467; People v Lewis, 71 AD2d 7; People v Jones, 27 NY2d 222; People v Malloy, 55 NY2d 296; People v Ortiz, 92 AD2d 595; People v Fox, 72 AD2d 146; People v Ingram, 49 AD2d 865; People v Johnson, 46 AD2d 123, 39 NY2d 364; United States v Davis, 328 F2d 864; United States v MacDonald, 455 F2d 1259, 406 US 962.)
   OPINION OF THE COURT

Jasen, J.

The critical issue common to these six appeals is whether a prior felony conviction, based upon a guilty plea which was entered without the defendant having been advised by the court of the specific constitutional rights being waived by that plea, may constitute a predicate felony for the purpose of sentencing the defendant as a second felony offender. In each case, the People have sought an increased sentence of imprisonment under section 70.06 of the Penal Law, which authorizes harsher penalties for second felony offenders. Each defendant has challenged the use of his respective prior felony conviction alleging a defective guilty plea.

At the outset, it should be stated that the procedure to be followed for determining whether a defendant is a second felony offender is set forth in CPL 400.21. This section places upon the People the burden of proving beyond a reasonable doubt the existence of the previous felony conviction (CPL 400.21, subd 7, par [a]), but not its constitutionality. Once the fact of the prior conviction has been established, it is then incumbent upon the defendant to allege and prove the facts underlying the claim that the conviction was unconstitutionally obtained (CPL 400.21, subd 7, par [b]).

Upon reviewing the records on these appeals, we conclude, for the reasons stated, that the defendants, with the exception of Vargas, did not sustain their burdens, and the presumptions of the validity and regularity of the previous felony convictions (People v Smyth, 3 NY2d 184; People v Bell, 36 AD2d 406, affd 29 NY2d 882; McCormick, Evidence [2d ed], § 343, p 807) were not overcome by substantial evidence to the contrary (People v Richetti, 302 NY 290).

A conviction obtained in violation of one’s constitutional rights may not be used to enhance punishment for another offense. (Burgett v Texas, 389 US 109, 115.) Consistent with that principle, CPL 400.21 (subd 7, par [b]) provides that “[a] previous conviction * * * which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction.” Likewise, this court has on numerous occasions repeated that “an alleged second or third felony offender could question the validity of the predicate conviction at the time he was resentenced.” (People v Wilkins, 28 NY2d 213, 218; see, also, People v Jones, 17 NY2d 404; People v Machado, 17 NY2d 440.)

But this court has never held, and we refuse to so hold now, that a predicate conviction upon a guilty plea is invalid solely because the Trial Judge failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea. There is no requirement for a “uniform mandatory catechism of pleading defendants.” (People v Nixon, 21 NY2d 338, 353.) Though a rigorous and detailed colloquy may be appropriate in certain instances, under most ordinary circumstances such questioning by the Trial Judge would be an unnecessary formalism. The seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the “plea bargain”, and the pace of the proceedings in the particular criminal court are among the many factors which the Trial Judge must consider in exercising discretion. (People v Nixon, supra, at p 353.) But as we have emphasized on a previous occasion, “there is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel * * * may nevertheless not know what he is doing.” (People v Francis, 38 NY2d 150, 154.) Overall, a sound discretion, exercised in cases on an individual basis is preferable to a ritualistic uniform procedure. (People v Nixon, supra, at p 355.)

On the other hand, a record that is silent will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections. (People v Rodriguez, 50 NY2d 553, 557.) To be sure, the record must show “an intentional relinquishment or abandonment of a known right or privilege.” (Johnson v Zerbst, 304 US 458, 464; Barker v Wingo, 407 US 514, 526.) As the United States Supreme Court held in Carnley v Cochran (369 US 506, 516): “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused * * * intelligently and understanding^ rejected [his constitutional rights]. Anything less is not waiver.”

The key issue in these cases, then, is whether the defendants knowingly, voluntarily and intelligently relinquished their rights upon their guilty pleas. Addressing a related question, Chief Judge Breitel, speaking for this court in Chaipis v State Liq. Auth. (44 NY2d 57, 63-64), observed: “It is a truism that a guilty plea, which waives even many constitutional rights, must be taken only when the defendant has knowledge and understanding of the consequences of the plea. [Citation omitted.] If the plea be coerced, or if defendant’s knowledge of its consequences be not explored sufficiently, the plea may be subject to vacation on proper and timely motion.”

Each of the defendants here contends that his guilty plea which resulted in a prior felony conviction was unconstitutionally obtained. They each mistakenly rely on the United States Supreme Court’s decision in Boykin v Alabama (395 US 238) for the proposition that a Trial Judge must first expressly apprise a defendant of the right to a jury trial, the privilege against compulsory self incrimination and the right to confront accusers, that the Judge must inquire on the record whether the defendant wishes to waive each of them, and that the defendant must do so explicitly before a guilty plea may be accepted. While this practice might facilitate subsequent determinations on the record of the voluntariness of a guilty plea, “[i]n all such inquiries, ‘[mjatters of reality, and not mere ritual, should be controlling.’ ” (McCarthy v United States, 394 US 459, 467-468, n 20; Kennedy v United States, 397 F2d 16, 17.)

In Boykin, the Supreme Court reversed a conviction upon a guilty plea where the record disclosed that the Trial Judge had asked no questions concerning the guilty plea and the defendant himself never addressed the court. Indeed, the record was virtually silent on the circumstances surrounding the entry of the plea and, consequently, it failed utterly to reveal any evidence that the defendant voluntarily and understandingly entered his plea. (Boykin v Alabama, supra, at p 244.) That court held that it was error “plain on the face of the record” for the Trial Judge to accept the guilty plea “without an affirmative showing that it was intelligent and voluntary.” (Boykin v Alabama, supra, at p 242.)

Defendants’ reliance on Boykin centers primarily on the following portion of that opinion: “Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan 378 U. S. 1. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U. S. 145. Third, is the right to confront one’s accusers. Pointer v. Texas, 380 U. S. 400. We cannot presume a waiver of these three important federal rights from a silent record.” (Id., at p 243.)

We disagree that the court thereby intended to require a specific recitation of rights and multiple explicit waivers as the defendants here contend. Indeed, in another portion of the opinion in Boykin itself, the court cited with approval a colloquy procedure in which the trial court examines the defendant to determine whether he understands the nature of the charges, his right to trial by jury, the elements of the offense(s) and the range of permissible sentences — but which does not include a specific enumeration of each of the rights being waived. (Boykin v Alabama, supra, at p 244, n 7.) Nowhere in its opinion did the court mandate an inquiry concerning the three afore-mentioned and so-called Boykin rights. Moreover, subsequent to Boykin, that court has clearly noted that “the new element added [therein] was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily” (Brady v United States, 397 US 742, 747, n 4), and that “the voluntariness of [a] plea can be determined only by considering all of the relevant circumstances surrounding it.” (Id., at p 749 [emphasis added].) In North Carolina v Alford (400 US 25, 31), the court, referring to Boykin, emphasized that the “standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. See Boykin v Alabama”. (Emphasis added.)

A survey of the decisions of the Federal Courts of Appeals and the State courts which have considered this question reveals a virtual unanimity of opinion that a detailed articulation and waiver of the three rights mentioned in Boykin is not constitutionally mandated. (See, e.g., Kloner v United States, 535 F2d 730, 733, cert den 429 US 942; United States v Pricepaul, 540 F2d 417, 422; Stinson v Turner, 473 F2d 913, 915; State v Shockley, 188 Conn 697, 709; Commonwealth v Morrow, 363 Mass 601, 603-604; Edwards v State, 51 Wis 2d 231, 234-236; contra Matter of Tahl, 1 Cal 3d 122,131-133.) The clear import of Boykin and its progeny is that the Trial Judge has a vital responsibility “to make sure [that the accused] has full understanding of what the plea connotes and of its consequence” (Boykin v Alabama, supra, at p 244), not that a new procedural requirement has been imposed, mandating the Trial Judge’s ritualistic recitation of the rights waived upon a guilty plea.

Turning to the appeals before us, in People v Harris, the trial court sentencing defendant as a second felony offender rejected defendant’s claim that the predicate felony conviction had been unconstitutionally obtained. The record of the prior proceeding revealed that Harris had offered to plead guilty on the condition that he be immediately paroled and placed under the supervision of a drug rehabilitation program. It further showed that Harris was represented by counsel, that he was advised by the Trial Judge that by pleading guilty he was waiving his rights to a jury trial and to confront witnesses against him, that he stated that he had discussed his plea with his attorney, that he was pleading freely, and that he admitted his guilt and acknowledged the facts underlying his commission of the crime. Upon examining the record, the trial court found that the allocution had been sufficient and that the predicate felony conviction had been constitutionally obtained, and Harris was sentenced as a second felony offender. The Appellate Division likewise rejected Harris’ challenge of the earlier guilty plea and we agree that the record affirmatively demonstrates that the plea was entered intelligently and freely.

Harris’ additional claim that his sentence should be vacated and the matter remanded because the People failed to file the requisite felony statement pursuant to CPL 400.21 (subd 2) is unpersuasive. Given that the sentencing court had before it the minutes of the prior guilty plea, and inasmuch as Harris explicitly admitted his previous felony conviction and acknowledged that he was subject to sentencing as a second felony offender, the statutory purposes of apprising the court of the predicate felony conviction and providing the defendant with reasonable notice and an opportunity to be heard were satisfied. (Cf. Oyler v Boles, 368 US 448, 452.) The failure to file the predicate felony statement here being harmless, remanding this case for resentencing would only be “futile and pointless”. (People v Esteves, 41 NY2d 826, 827; People v Bryant, 47 AD2d 51, 62-63.)

In both People v Lewis and People v Ramsey, the respective trial courts each held that the prior guilty plea conviction at issue was defective because the defendant was not explicitly advised that a guilty plea constituted a waiver of the privilege against compulsory self incrimination and, in Ramsey, of the right to confront one’s accusers. In each case, the defendant was sentenced as a first felony offender. The Appellate Division reversed the judgments, vacated the sentences in both cases, and remanded for resentencing as second felony offenders. The record of the prior guilty plea in each case discloses that the defendant was represented by counsel, that he discussed his plea with the court, that he understood that he was waiving a jury trial and the meaning of the guilty plea, and that he wished to plead guilty and acknowledged the facts of his offense. These minutes amply demonstrate that each defendant entered his plea voluntarily and knowingly and that each prior conviction was constitutionally obtained.

In People v Alicea, the trial court reviewed the minutes of the prior guilty plea, found the allocution satisfactory and sentenced defendant as a predicate felon. The Appellate Division reversed the second felony offender adjudication and sentence, holding, as a matter of law, that the prior conviction could not be deemed a predicate felony because the defendant had not been informed by the Trial Judge that he was waiving his privilege against compulsory self incrimination and his right to confront witnesses by pleading guilty. The record does, however, disclose that defendant was represented by counsel, that he had discussed his plea with the Trial Judge, that he stated that he understood the consequences of his guilty plea and was entering his plea voluntarily, that he acknowledged the facts underlying his offenses and that he rejected the trial court’s offer permitting him to withdraw his plea and proceed to trial. Under these facts, it cannot be said that defendant’s guilty plea, as a matter of law, was unintelligent or involuntary and, therefore, constitutionally deficient.

In People v Burgo, the trial court, after reviewing the minutes of the predicate guilty plea conviction, sentenced defendant as a second felony offender and the Appellate Division affirmed. The record reveals that defendant was represented by counsel, that he expressly waived his rights to a jury trial and to confront his accusers, that he affirmed that his plea was not induced by threats or promises, and that he admitted committing the acts underlying the charge. The mere fact that an express waiver of the privilege against compulsory self incrimination had not been elicited does not invalidate the otherwise sufficient plea colloquy.

Burgo additionally challenges the adequacy of the “reasonable doubt” jury instruction in the second felony proceeding. While it is questionable whether defendant adequately apprised the trial court of his objections so as to preserve his argument for review by this court (see People v Thomas, 50 NY2d 467, 471), we, nevertheless, find no merit in his claim of error requiring reversal. “The concept of reasonable doubt itself defies precise definition. Of necessity, it must be described in general terms” (People v Malloy, 55 NY2d 296, 303; People v Jones, 27 NY2d 222). It cannot be said that the charge given here was impermissibly confusing or inaccurate.

In People v Vargas, the trial court examined the minutes of the prior guilty plea conviction and, finding it deficient, sentenced defendant as a first felony offender, and the Appellate Division affirmed. The record shows not only that the prior guilty plea had been obtained without the defendant having been advised of the rights he was waiving, but also that there was no actual discussion between the Trial Judge and the defendant on the plea allocution, and that the defendant was apparently represented by a stand-in counsel not wholly familiar with the case. Because the record raises sufficient doubts as to whether defendant understood the consequences of his guilty plea, the affirmed finding of the trial court that defendant is not a predicate felon for the purpose of sentencing as a second felony offender was warranted.

Accordingly, the orders of the Appellate Division in People v Harris, People v Lewis, People v Ramsey, People v Burgo and People v Vargas should be affirmed. The order in People v Alicea should be reversed and the case remitted to the Appellate Division for a determination of the facts. (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b].)

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

In People v Harris, Lewis, Ramsey, Vargas and Burgo: Order affirmed.

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


author: Jones, J. Chief Judge Cooke

text:
    The People of the State of New York, Respondent, v Carmelo Alicea, Appellant.
    Argued October 25, 1983;
    decided December 20, 1983

      POINTS OF COUNSEL

      Joann R. Blasberg for appellant.
    I. Defense counsel’s simultaneous representation of a coparticipant deprived defendant of the effective assistance of counsel. (People v La Mere, 39 AD2d 15; People v Hall, 46 NY2d 873, 444 US 848; People v Baffi, 49 NY2d 820; People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307; People v Monroe, 54 NY2d 35, 455 US 947; People v Ayala, 86 Misc 2d 99; People v Crump, 53 NY2d 824; People v Burwell, 53 NY2d 849.) II. The hearing court applied the wrong standard in determining defendant’s motion for postconviction relief. (People v Macerola, 47 NY2d 257; People v Baffi, 49 NY2d 820; People v Burwell, 53 NY2d 849; People v Monroe, 54 NY2d 35; Cuyler v Sullivan, 446 US 335.) III. Defendant was denied a fair trial. (People v Leyra, 1 NY2d 199; People v Baker, 26 NY2d 169; People v Melendez, 55 NY2d 445; People v Tufano, 69 AD2d 826; People v Dowdell, 88 AD2d 239; People v Santiago, 78 AD2d 666; People v Galloway, 54 NY2d 396.)

      Robert M. Morgenthau, District Attorney (Andrew J. Frackman and Bruce Allen of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. Defendant was adequately represented by counsel. (People v Monroe, 54 NY2d 35, 455 US 947; People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307; United States v Curdo, 680 F2d 881; Cuyler v Sullivan, 446 US 335; Holloway v Arkansas, 435 US 475; People v Gomberg, 38 NY2d 307; People v Gonzalez, 30 NY2d 28, 409 US 859.) III. Defendant was not denied a fair trial. (People v Williams, 46 NY2d 1070; People v Robinson, 36 NY2d 224; People v Yazum, 13 NY2d 302; People v Galloway, 54 NY2d 396.)
   OPINION OF THE COURT

Jones, J.

Defendant was not denied his constitutional right to effective assistance of counsel because his attorney had previously also represented a codefendant (giving rise to a potential conflict of interest) where, following a posttrial hearing, the trial court determined that such prior representation had not affected the attorney’s representation of defendant.

On September 8,1976, while defendant was walking his two German shepherd dogs, an argument arose with Michael Lugo, the superintendent of a neighboring building about the conduct of one of the dogs. Four days later, defendant, accompanied by his son-in-law, Luis Torres, again encountered Lugo, and an altercation ensued. The dispute climaxed when Lugo was shot several times and suffered serious injuries.

Torres was arrested on the day of the incident and confessed that he had shot Lugo after Lugo had punched defendant. Torres was represented by Melvin L. Greenwald, Esq., on charges of attempted murder, assault in the first degree, and criminal possession of a weapon. On February 28, 1977, Torres pleaded guilty to the assault count in full satisfaction of all charges. He failed to appear for sentencing, however, and absconded.

Defendant was arrested on March 26,1977, was charged with the same offenses as Torres had been, and was likewise represented by Greenwald.

At defendant’s jury trial, which began on February 4, 1980, the People introduced testimony that defendant and Torres had been looking for Lugo the night before the shooting to afford Lugo an opportunity to give defendant the “slaps” that Lugo had offered to give him during the original argument. The owner of a social club, who was a friend of Lugo, testified that defendant had been drinking with Torres at the club on the day of the shooting, that defendant was upset and that he had told Torres that he had a dispute with Lugo about the dogs and wanted to kill Lugo. The owner further testified that defendant had shown Torres a gun and had shot it at a friend of the owner outside the club.

According to Lugo’s testimony, defendant and Torres approached him outside his apartment building and defendant challenged Lugo to slap him in the face as he claimed Lugo had promised to do during their original argument. Lugo denied having threatened to slap defendant, but defendant continued to insult him. Lugo was about to leave when he saw “flashings” coming from defendant’s and Torres’ pockets and heard the sound of gunshots. He fell to the ground, and Torres fired a shot at him as he lay there. Defendant and Torres then fled.

According to testimony of the doctor who operated on Lugo, he had been shot at least four, and possibly five, times. A gun was introduced without objection which had been found on a neighboring rooftop to which Torres had directed the police following his arrest, and a ballistics expert testified that one of the bullets removed from Lugo’s body had been fired from that gun.

Based on information received from Torres, police officers conducted a search of the area surrounding the scene of the shooting but were unable to find the second suspected assailant. A detective testified with respect to his efforts to locate defendant and as to his eventual arrest some six months after the incident.

Defendant took the stand on his own behalf, presenting the only evidence for the defense. According to his testimony; on the day of the shooting he was walking with Torres when Lugo, who was standing in front of his building across the street, repeated a threat he had made on September 8. Defendant and Torres each challenged Lugo to hit him. Lugo then crossed the street accompanied by three other persons and grabbed defendant by the neck. At that moment, Torres fired at Lugo and then told defendant that they should leave because there were three people hiding behind a bus.

The jury was informed that Torres had been indicted for the shooting, had pleaded guilty and had not appeared for sentencing. The case was then submitted to the jury on both principal and accessorial theories of liability. The jury returned verdicts of not guilty of attempted murder but guilty of first degree assault.

Defendant appealed the judgment of conviction to the Appellate Division. In the interim, he moved to vacate the judgment on the ground that he had been denied effective assistance of counsel due to a conflict of interest caused by Greenwald’s prior representation of Torres. The Judge who had presided over the trial held a hearing on the motion.

According to Greenwald’s hearing testimony, he had no longer considered himself Torres’ attorney after Torres absconded following his plea. Greenwald testified that he last saw Torres at his plea, and that, although they had frequently discussed Torres’ whereabouts, defendant did not know where Torres could be located. Greenwald further testified that Torres had never told him defendant had shot Lugo and that the essence of Torres’ statements to him was contained in the prosecutor’s voluntary disclosure form which included the entry: “Defendant [Torres] said that he had shot a guy who had punched his father-in-law in the face. He said that two days earlier his father-in-law was walking a dog, and this guy who was a superintendent argued with the father-in-law about the dog messing the sidewalk in front of the superintendent’s building. On the day of the shooting there was another argument and the guy punched the father-in-law and defendant shot the superintendent.” Greenwald denied that his failure to have offered Torres’ admission in the disclosure form was the result of any effort to protect Torres and claimed that his prior representation of Torres in no way guided any decision he made regarding defendant’s trial. He also testified that he had never discussed the possibility of a conflict of interest with defendant.

Defendant testified at the hearing that he had retained Greenwald soon after Torres’ arrest to represent both Torres and himself. Defendant had discussed the possibility of his own arrest with Greenwald, and at one point Greenwald had informed him that a detective was looking for him and had instructed him not to contact the detective. After being arrested, defendant had called Greenwald who then came to his arraignment. At various times defendant had met with Torres and Greenwald to discuss the case, with both defendant and Torres maintaining that Torres had shot Lugo. Defendant agreed that Greenwald had never advised him about the possibility of a conflict of interest.

At the conclusion of the hearing the trial court denied defendant’s motion in an oral ruling. Noting that defendant’s principal contention was that Greenwald had failed to call Torres as a witness at the trial, the court stated that this was not significant because Greenwald had not seen him for three years and evidently defendant himself could not get his son-in-law to come into court. As to defendant’s argument that Greenwald should have sought to introduce Torres’ admission, the court pointed out that Torres’ statement that he shot Lugo was not a declaration that defendant did not also shoot Lugo. Moreover, the court noted that whether the statement would have been admissible as a declaration against penal interest was a difficult question. The court concluded that it was “virtually inconceivable * * * that Mr. Greenwald’s actions, or omissions, with respect to this matter, were governed, or, in any way, influenced by the fact that he had represented Torres,” and that, “[wjhatever criticism may or may not be appropriate concerning his conduct of the Alicea trial, any possible, inadvisable tactics on his part, most certainly, have nothing to do with the desire by him to assist Torres, or with any alleged ‘conflict of interest’

The Appellate Division affirmed the judgment of conviction and the order denying defendant’s motion to vacate judgment, without opinion. Defendant has appealed to our court. There should be an affirmance.

On this appeal, defendant argues that Greenwald had a continuing obligation to protect Torres’ interests although Torres had previously pleaded guilty and that this continuing duty posed a conflict of interest or at least the significant possibility of a conflict which violated defendant’s right to effective assistance of counsel. The People contend that inasmuch as Torres had already pleaded guilty and failed to appear at sentencing and defendant was not tried jointly with Torres, Torres had implicitly dismissed Greenwald as his attorney when he absconded and there was thus no joint representation of multiple defendants by Greenwald at the time of defendant’s trial.

It is to be observed at the threshold that this is not a case of multiple representation of codefendants at the same trial, calling for invocation of the procedures and determination of defendant’s rights in accordance with the principles applicable in such cases (e.g., People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307). We recognize, however, that conflicts of interests arising from multiple representation can occur although the defendants are not tried together. An attorney’s obligations to his client do not terminate once the representation of the client by the attorney has been completed. An attorney is obligated, for example, not to disclose confidences and secrets of the client even after the representation has ceased (Code of Professional Responsibility, DR 4-101). Further, there may be aspects of the prior representation which are still ongoing following the formal termination of the representation which the attorney would be obligated not to undermine. Consequently, a conflict of interest from an attorney’s successive representation of multiple defendants may be the predicate for the finding of ineffective assistance of counsel where the defendants are not tried together (see Cuyler v Sullivan, 446 US 335).

In the present case, although defendant was not tried until some three years after Torres had pleaded guilty and absconded, we assume that Greenwald still had a continuing duty to maintain any confidences or secrets he had gained in representing Torres and not to take any action which would be adverse to Torres’ interests. Torres had not been sentenced and no appeal had been taken at the time of defendant’s trial so that the case against him was still ongoing, and it was possible that what transpired in defendant’s trial could have an adverse impact on Torres. Thus, we proceed on the assumption, as apparently did the trial court, that Greenwald still had a professional obligation to Torres at the time defendant stood trial which gave rise to a potential conflict of interest.

The critical issue in cases such as this is whether the defendant was denied his constitutional right to effective assistance of counsel in consequence of the operation of the potential conflict. If, as occurred in this instance, the trial court concludes after a posttrial hearing that the conflict of interest did not in fact affect the manner in which the attorney conducted the defendant’s defense and that determination is not disturbed at the Appellate Division, the defendant is not entitled to a new trial merely because he can show that, a priori, there was a significant possibility that a conflict of interest did exist.

Defendant urges that Torres’ testimony would have been beneficial to the defense and that Greenwald was therefore obligated in his representation of defendant to have undertaken to obtain his presence and testimony at the trial. He stresses that had Greenwald been successful in locating Torres, however, Greenwald would then have faced ethical difficulties in seeking Torres’ appearance in the face of an outstanding bench warrant against him. Defendant also points to Greenwald’s failure at least to have offered in evidence the record of Torres’ admission that he had shot Lugo. Although the People urge that the introduction of that admission, known as it was to the prosecution, could have worked no detriment to Torres, an attorney sensitive to the latter’s best interests might have concluded that it would better serve those interests to let sleeping dogs lie. Thus, defendant submits that he has shown that there was a substantial possibility of a conflict of interest.

As stated, however, such a showing, without more, is insufficient to entitle defendant to a new trial; he must demonstrate that the conduct of his defense was in fact affected by the operation of the conflict of interest. Here, the Trial Judge made an equivocal factual determination that defendant’s representation by Greenwald was not influenced or affected by his prior representation of Torres. This is a finding, not that defendant might not have been prejudiced in consequence of a conflict of interest, but that the potential conflict of interest simply never operated, that in legal contemplation there was no conflict of interest. This finding, having been made by the Trial Judge and affirmed at the Appellate Division, is beyond our review. There was, therefore, no error in the conclusion that in the circumstances of this case defendant was not denied his constitutional right to effective assistance of counsel.

We have considered defendant’s other assertions of error and find them to be without merit.

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

Chief Judge Cooke

(concurring). I agree that defendant has not suffered a deprivation of his constitutional right to effective assistance of counsel. I do not, however, perceive any rationale supporting or warranting adoption of different standards for reviewing cases based on whether or not defendants represented by the same attorney were tried jointly. The defendant whose representation is subject to a potential conflict of interest and who faces trial at a different time than his codefendant is no less deserving of protection from denial of the right to effective assistance of counsel than is a defendant jointly tried with a codefendant. Potentially, defendants in either situation would be equally vulnerable to conflicts of interest. And, in each instance, the defendant would not be apprised of the dangers of joint representation. The crucial predicate focus in all cases of claimed ineffective assistance is on the representation itself.

The majority would nevertheless impose a stricter standard on a defendant who, although represented by an attorney who also represents a codefendant, is tried at a later time than the codefendant. Under the majority’s formulation, a defendant jointly represented but tried after his or her codefendant “is not entitled to a new trial merely because he can show that, a priori, there was a significant possibility that a conflict of interest did exist.” (Majority opn, at p 30; see, also, People v Monroe, 54 NY2d 35, 39; People v Macerola, 47 NY2d 257, 264.) Rather, “he must demonstrate that the conduct of his defense was in fact affected by the operation of the conflict of interest.” (Majority opn, at p 31.) Although the majority does not make clear what constitutes an “affected” defense or how this may be proven, as a practical matter, it appears that the majority would require a defendant to show that his defense was actually prejudiced due to his attorney’s representation of a codefendant. In any event, it is difficult to conceive a difference between a prejudicial defense and an affected defense. No rationale is proffered to justify a differing approach.

When a Trial Judge has failed to conduct a pretrial colloquy, the claim of joint representation resulting in ineffective assistance of counsel is always reviewed in identical contexts. Whether it is first raised on appeal or it is presented as a posttrial motion in the trial court itself, the matter is determined with the benefit of a full trial record being available. Yet, this court has never before required a defendant to show “the exact prejudice resulting from the defendants’ joint representation. The right of every person accused of committing a crime to the effective assistance of counsel is too fundamental to tolerate such conjecture by appellate courts, especially where * * * the prejudice which results when one attorney represents codefendants with conflicting interests may never clearly manifest itself in the record.” (People v Macerola, 47 NY2d 257, 265, supra.)

The majority’s implication that a trial court, in cases such as this, can be under no obligation to initiate an inquiry with defendant (see majority opn, at p 29) is irrelevant to the dispositive question of whether the defendant was actually provided with effective assistance of counsel, notwithstanding the joint representation. Moreover, in People v Monroe (supra) this court applied the prevailing standard of whether the defendant had established a “significant possibility” of a conflict of interest, in circumstances in which the defendant had not been jointly tried with his codefendant. Therefore, given the absence of a distinction between the classes of defendants that would justify providing less protection to one, I would hold, as this court’s prior decisions have held, that the defendant need only show the “significant possibility” of a conflict of interest before he or she is entitled to a new trial (see People v Monroe, 54 NY2d 35, 39, supra; People v Macerola, 47 NY2d 257, 264, supra). In the present appeal, having demonstrated at best only a tenuous possibility of a conflict arising from the attorney’s representation of a codefendant, defendant has failed to meet this burden.

Judges Jasen, Wachtler, Meyer and Kaye concur with Judge Jones; Chief Judge Cooke concurs in result in a separate opinion; Judge Simons taking no part.

Order affirmed.

       We observe in passing that, in cases presenting claims of denial of effective assistance of counsel resulting from multiple representation, failure of the defendant to establish that he was actually prejudiced in consequence of his counsel’s conduct of his defense will not defeat his entitlement to a reversal (People v Macerola, 47 NY2d 257, 265; Cuyler v Sullivan, 446 US 335, 349-350). Thus, in this case, absence of proof that defendant was in fact prejudiced by Greenwald’s failure to call Torres or to offer his voluntary admission would not defeat his right to a reversal if he were otherwise entitled thereto. A determination that the potential conflict of interest did not affect the conduct of the defense and thus never operated is wholly different from a conclusion that, although it operated, the defendant was not prejudiced thereby.

       Indeed, whenever a trial court is aware that a defendant is jointly represented, it has a duty to advise the defendant of the risks of joint representation (see People v Gomberg, 38 NY2d 307, 314).