author: Per Curiam.

text:
    The People of the State of New York, Respondent, v Frank Grande, Appellant.
    Argued June 2, 1978;
    decided July 11, 1978
    APPEARANCES OF COUNSEL

      Bernard H. Udell for appellant.

      Eugene Gold, District Attorney (Julian L. Kalkstein of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Defendant appeals from an affirmance of his conviction on plea of guilty of possession, for the purpose of sale, of unstamped or unlawfully stamped cigarette packages (Tax Law, § 481). He contends that the cigarettes found in the garage of his home at the time of his arrest should have been suppressed. After a pretrial suppression hearing, suppression was denied.

The principal issue is whether there was insufficient basis to seize the cigarettes, even though the arresting officer had and had executed a warrant for defendant’s arrest on charges of violation of the cigarette tax law.

There should be an affirmance.

The facts are quite similar to those in People v Rizzo (40 NY2d 425), where the seized cigarettes were suppressed. As in the Rizzo case, the Tax Department investigators arrived at defendant’s home address with a strong suspicion that he was in possession of untaxed cigarettes for purposes of sale. In each case, too, there was apparently no certainty that untaxed cigarettes were kept on the premises. There are distinctions, however, which require a different result in this case from that reached in the Rizzo case.

First, and most important, the officers arrived at Grande’s home address with an arrest warrant for offenses identical to the ones now charged. True, excluded below was the testimony that the warrant related to cigarette tax offenses, but that exclusion was error. The testimony would have substantially bolstered the prosecution’s contention that the police officers had probable cause to believe a crime was being committed at defendant’s home. It was therefore relevant, and should have been admitted. The warrant, the validity of which, it is quite significant, defendant has never attacked, indicates probable cause to believe defendant possessed untaxed cigarettes. Present was more than the "vague and unsubstantiated suspicion” involved in the Rizzo case (supra, p 430).

It may be that the warrant did not, by itself, indicate probable cause to believe defendant kept untaxed cigarettes at any particular place, such as his home or its lower level garage (cf. People v Abronovitz, 31 NY2d 160, 163-164). The warrant did, however, authorize the officers to be at defendant’s home for purposes of arrest. The investigators first saw defendant when he emerged from the house and walked down to the garage. After the defendant knocked on the garage door it was opened from the inside by his wife, and the officers approached defendant. While the police were executing the warrant at the threshold of defendant’s garage, they saw cartons and half cases of cigarettes through the open garage door. At the time of arrest, then, when the officers were on defendant’s premises legally, they had probable cause to believe a crime was being committed in the garage, namely, possession, with intent to sell, of untaxed cigarettes. Hence, the officers were justified in seizing the cigarettes in connection with the arrest, and the cigarettes should not have been suppressed.

A second distinction from the Rizzo case, not conclusive however, is the implied finding by the courts below that there was probable cause to seize the contraband. In Rizzo, by contrast, there had been a finding by the courts below of no probable cause. The court noted the absence of power to review factual determinations unless unsupported as a matter of law, and added that "[t]his principle obtains equally to determinations that probable cause exists” (People v Rizzo, 40 NY2d 425, 430, supra). The principle is applicable in this case, although in other cases determinations of fact by the courts below may not be dispositive if those determinations cannot stand as a matter of law.

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

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

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Joseph Mahoney et al., Appellants, v O’Shea Funeral Homes, Inc., et al., Respondents.
    Argued June 1, 1978;
    decided July 11, 1978

      APPEARANCES OF COUNSEL

      Frederick I. Abrams for appellants.

      Ira P. Sloane for O’Shea Funeral Homes, Inc., and another, respondents.

      W. Kenneth Chave, Jr., Town Attorney (Joseph C. Calabrese of counsel), for Town of Hempstead, respondent.
   OPINION OF THE COURT

Memorandum.

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

In light of the existence of commercially zoned lots in the area surrounding the subject premises, one of which was rezoned from residential to commercial as recently as 1970, we believe that the amendment to the zoning ordinance was not arbitrary and is, therefore, constitutional as applied. Unless shown to be arbitrary, the decision of the local legislative body to zone or rezone property is conclusive and beyond judicial interference. (McGowan v Cohalan, 41 NY2d 434, 438.)

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

Order affirmed.


text:
    In the Matter of John L. Short, Respondent, v Nassau County Civil Service Commission, Appellant.
    Argued May 30, 1978;
    decided July 11, 1978

      APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (William S. Norden of counsel), for appellant.

      David H. Berman and Frederick J. Magovern for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with both courts below that the record supports the determination of the Nassau County Civil Service Commission sustaining the charges arising out of petitioner’s refusal on April 19, 1972 to sign and file claims for reimbursement of expenditures in the sum of approximately ten million dollars. We also conclude, in agreement with Special Term but disagreement with the majority at the Appellate Division, that the record sustains the commission’s determination that petitioner was likewise guilty of misconduct and insubordination and dereliction of duty in consequence of his distribution of a memorandum dated March 9, 1972 indicating that the salaries of all departmental personnel assigned to the Nassau County Medical Center and involved in referrals to the Family Planning Clinic would be deleted from all claims for reimbursement on the ground that they were in violation of policies and directives of the County Department of Social Services.

We further agree with Special Term that the penalty of dismissal in the circumstances disclosed in this record was not excessive and that its imposition did not constitute an abuse of discretion. (Matter of Pell v Board of Educ., 34 NY2d 222, 233.) The record supports the findings of Special Term that the "insubordination and misconduct was substantial, deliberate, defiant and * * * unrepented [and that] [t]here is no indication whatever that the same or similar conduct would not be repeated if Short were allowed to return to work”. In these circumstances it was within the range of the discretion permitted and of the responsibility reposed in the commission to determine that the appropriate penalty was termination and severance from departmental employment. We accept the contention of petitioner that the record does not disclose misconduct involving moral turpitude, or self-benefit in any economic sense. However, it was petitioner’s persistent unwillingness to accept the directives of his superiors which warrants the conclusion reached by the commission.

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

Order reversed, etc.


text:
    Arthur Puro, Appellant, v Louis Puro et al., Respondents.
    Argued June 5, 1978;
    decided July 11, 1978

      APPEARANCES OF COUNSEL

      Lawson F. Bernstein for appellant.

      Ambrose Doskow and Milton Davidoff for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by denying the cross motion for summary judgment, without costs.

On the first appeal, where Arthur Puro alone appealed (33 NY2d 802), we simply held, as had Mr. Justice Fraiman (75 Misc 2d 950, 955, 956), that the acceptance of the stock option made by Louis Puro, on Arthur Puro’s behalf, was valid under the partnership agreement. We did not have before us, and did not consider, whether any of the acceptances sent by the other Puro brothers, satisfied the requirements of the partnership agreement or the 1963 and 1965 agreements relating to the real estate. Thus with respect to the fourth cause of action, relating only to the real estate, neither plaintiff nor defendants were entitled to summary judgment on the law of the case theory. The validity of the acceptances under the 1963 and 1965 real estate agreements must be determined on the merits.

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

Order, insofar as appealed from, modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Carlos Pagan, Appellant.
    Argued June 2, 1978;
    decided July 11, 1978

      APPEARANCES OF COUNSEL

      Daniel M. Ross and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Phyllis M. Gershon, Robert M. Pitler, Jerrold L. Neugarten and Susan K. Wasserman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After deliberating for five hours and finding themselves unable to reach a verdict, members of the jury were instructed that unlike this "simple case, as far as the amount of evidence to be covered is concerned * * * some cases last months, but the Jury is expected to come to a verdict.” The court then noted that "sometimes a Jury can’t reach a verdict” and that a deadlock had in fact occurred recently in a more involved case where disagreement had continued into the second day of deliberations despite a night of sequestration and reflection. Reluctant to again declare a mistrial, the court summed up its supplemental charge by calling upon the jury to renew deliberations and to "make every effort possible to arrive at a verdict.”

Approximately one and a half hours later the foreman announced that the jury had reached a verdict of guilty. The defendant now contends that the trial court’s supplemental instructions were impermissibly coersive.

To be sure a Trial Judge "must not attempt to coerce or compel the jury to agree upon a particular verdict, or any verdict” (People v Faber, 199 NY 256, 259). Supplemental charges which prod jurors through prejudicial innuendoes or coerce them with untoward pressure to reach an agreement will not be countenanced (e.g., People v Carter, 40 NY2d 933, 934; People v Sheldon, 156 NY 268, 282).

On the other hand a trial court may properly discharge its responsibility to avoid mistrials by encouraging jurors to adhere to their oaths and make one final effort to review the evidence and reach a verdict one way or the other (People v Faber, supra, p 258). And under appropriate circumstances the availability of sequestration at a hotel for the night may also be noted as a possibility, although not as a threat (People v Sharff, 38 NY2d 751, 753).

Here, although the approach of the Trial Judge may not have been ideal, in essence he simply asked the jury to exert its best efforts and renew deliberations. No jurors were impermissibly singled out for noncompliance with the majority. None were improperly threatened, nor was it even suggested that the jury would be forced to continue deliberations indefinitely without any outside communication should agreement still elude them following a renewal of their efforts to reach a verdict. The defendant’s general objection on these points, unsupported by a timely request for an additional charge and thus only questionably preserved for review (see People v Vidal, 26 NY2d 249, 254), must therefore fail in any event on the merits (People v Sharff, supra).

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

Order affirmed in a memorandum.


text:
    In the Matter of Robert M. Cassidy, Respondent, v Nassau County Civil Service Commission et al., Appellants.
    Argued May 30, 1978;
    decided July 11, 1978

      APPEARANCES OF COUNSEL

      William Gitelman, County Attorney (William H. Pauley, III, Natale C. Tedone and Trade P. Peddy of counsel), for appellants.

      Daniel C. Mooney for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the judgment of Supreme Court, Nassau County, dismissing the petition reinstated on the opinion by Mr. Justice Andrew J. Di Paola at Special Term.

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Albert E. McFerran, Jr., Appellant, v Board of Education, Enlarged City School District of Troy, et al., Respondents.
    Argued June 5, 1978;
    decided July 11, 1978

      APPEARANCES OF COUNSEL

      Albert E. McFerran, Jr., appellant pro se.

      George S. Lettko for Board of Education, respondent.

      Kenneth Pawson and Robert D. Stone for Commissioner of Education, respondent.
   OPINION OF THE COURT

Memorandum.

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

Having instituted an action in Federal court based on a distinct Federal cause of action, it was necessary for that court to determine the validity of the agreement which petitioner now attacks in this subsequent proceeding. That prior action fully embraced those claims which petitioner now seeks to litigate in the courts of this State and settled principles of res judicata bar petitioner from raising those matters here (Israel v Wood Dolson Co., 1 NY2d 116, 118; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307; Stoner v Culligan, Inc., 32 AD2d 170, 171-172).

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

Order affirmed.


text:
    N. A. Kerson Company, Inc., et al., Appellants, v Shayne, Dachs, Weiss, Kolbrenner, Levy and Moe Levine, Individually and as Partners, et al., Respondents.
    Argued June 7, 1978;
    decided July 11, 1978

      APPEARANCES OF COUNSEL

      Nathaniel Kerson, pro se, and Stephan A. Blum for appellants.

      Samuel Halpern for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, for reasons stated in the concurring memorandum of Mr. Justice Joseph A. Suozzi.

We would add only that plaintiffs proof, taken in its most favorable light, fails to establish a prima facie case of legal malpractice or fraud in connection with the execution of the stipulation of settlement of the prior action. Other than evidence of withdrawal of the second affirmative defense, the record is barren of any evidence that said defense would have altered the result of the prior action.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke concur; Judge Wachtler taking no part.

Order affirmed, without costs, in a memorandum.


text:
    Frank F. Arnold, Appellant, v District Council No. 9, International Brotherhood of Painters and Allied Trades, et al., Respondents.
    Submitted June 5, 1978;
    decided July 11, 1978
   Motion, insofar as it seeks an order rejecting any papers contained in the proposed record on appeal which pertain to the April 13, 1978 order of the Appellate Division, dismissed as premature.


text:
    Leslie Canty, Jr., Appellant, v Greyhound Lines, Inc., Respondent.
    Decided July 11, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies.


text:
    Zayra Cherney, Respondent, v Blaise De Rosa et al., Appellants.
    Submitted June 12, 1978;
    decided July 11, 1978
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of Aristile W. Hawley et al., Appellants, v Mario M. Cuomo, as Secretary of State of the State of New York, Respondent.
    Submitted May 8, 1978;
    decided July 11,1978
   Motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    In the Matter of Charles J. Hynes, as Deputy Attorney-General, Appellant, v Hi-Li Manor Home for Adults, Respondent.
    Submitted June 19, 1978;
    decided July 11, 1978
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Charles J. Hynes, as Deputy Attorney-General, Appellant, v Israel Lefkowitz, Doing Business as Palm Beach Home for Adults, Respondent.
    Submitted June 19, 1978;
    decided July 11, 1978
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Charles J. Hynes, as Deputy Attorney-General, Appellant, v Oceanaire Building Corporation, Respondent.
    Submitted June 19, 1978;
    decided July 11, 1978
   Motion to dismiss the appeal herein denied.


text:
    The People of the State of New York, Appellant, v Earl Wooden, Respondent.
    Submitted July 3, 1978;
    decided July 11, 1978
   Motion for permission to file late notice of appeal denied. Cross motion to dismiss the appeal herein dismissed as moot.


text:
    Sybron Corporation, Appellant-Respondent, v Alfred J. Wetzel et al., Respondents-Appellants.
    Submitted June 12, 1978;
    decided July 11, 1978
   Motion to dismiss cross appeal taken by defendants-appellants herein granted and the cross appeal dismissed, with costs and $20 costs of motion, upon the ground that defendants are not parties aggrieved.


text:
    Allied Building Inspectors International Union of Operating Engineers, Local Union No. 211, AFL-CIO, et al., Appellants, v Office of Labor Relations of the City of New York et al., Respondents.
    Argued June 7, 1978;
    decided July 13, 1978
    APPEARANCES OF COUNSEL

      Joseph S. Earning and Marc S. Erieg for appellants.

      Allen G. Schwartz, Corporation Counsel (Paul T. Rephen and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Per Curiam.

Petitioners union and its president, in a CPLR article 78 proceeding, seek to compel respondents, the City of New York, the City Office of Labor Relations, and its director, to implement salary increases provided for in a collective bargaining agreement. Following an unsuccessful attempt by the city to perfect removal to Federal court, Special Term denied a motion to dismiss for failure to exhaust administrative remedies, namely the grievance and arbitration procedure in the agreement. A unanimous Appellate Division reversed, dismissed the petition, and directed the parties to proceed to arbitration. The union appeals.

The issue is whether by filing a petition to remove the proceeding to Federal court, and subsequently moving in Federal court for dismissal of the proceeding, the city waived its right to assert that arbitration was the proper and exclusive remedy.

There should be a modification to eliminate the dismissal of the petition and the direction to proceed to arbitration, and the proceeding should be stayed. The city’s right to assert that arbitration was the proper and exclusive remedy was not waived. The petition for removal and the motion to dismiss were directed at the subject matter jurisdiction of the courts, a use of the judicial process not inconsistent with an intention to rely on the arbitration remedy. Nor was that intention asserted with unreasonable delay. Once the issue of subject matter jurisdiction was resolved, and the matter remanded to State court, the city raised its alternative right to rely on the arbitration remedy in another "motion to dismiss”.

The city, assertedly acting under the Economic Stabilization Act of 1970 (see notes under US Code, tit 12, § 1904), refused to implement the full 7.3% second-year wage and salary adjudgments in its collective bargaining agreement with petitioner union. Following the procedures spelled out in the agreement, the union filed a grievance. When the grievance was denied, however, instead of proceeding with the next step of the grievance machinery, which called for "impartial” arbitration, the union, on June 27, 1974, brought this CPLR article 78 proceeding.

The city, without mentioning its right to rely on arbitration, filed a petition for removal to Federal court (see US Code, tit 28, § 1441). According to the city, under section 211 (subd a) of the Economic Stabilization Act (see notes under US Code, tit 12, § 1904), the Federal court had exclusive original jurisdiction over the dispute. The union, opposing removal, moved to remand to State court, and the city, again with no mention of arbitration, cross-moved to dismiss. Since the State court was assertedly without jurisdiction, and since removal jurisdiction of the Federal court is derivative only, according to the city the Federal court, too, could not hear the matter (see, e.g., Minnesota v United States, 305 US 382, 389).

The union prevailed. Holding that "exclusive original jurisdiction, in this instance, did not reside in a federal district court”, the district court granted the union’s motion to remand, and denied the city’s motion to dismiss (Allied Bldg. Inspectors Local 211 v Office of Labor Relations, No. 74 Civ. 3237 [CHT], SDNY, June 5, 1975). On August 14, the proceeding was restored to the calendar of Special Term. Within one month, on September 12, 1975, the city, again moving to dismiss, asserted for the first time the union’s failure to proceed with arbitration under the terms of the agreement.

Although the city’s status in the article 78 proceeding is a defensive one, namely, that of respondent, its right to rely on arbitration as the proper remedy is not absolute because it may be waived (see, e.g., Matter of Zimmerman v Cohen, 236 NY 15, 18-19; 8 Weinstein-Korn-Miller, NY Civ Prac, pars 7503.16, 7503.17). "In the absence of unreasonable delay”, as this court has held, "so long as the defendant’s actions are consistent with an assertion of the right to arbitrate, there is no waiver” (De Sapio v Kohlmeyer, 35 NY2d 402, 405). Thus, the court will look not only to the degree of participation in the litigation, but to whether the participation evinces an affirmative acceptance of the judicial forum (compare id. [procuring plaintiff’s deposition and cross-claiming for apportionment held to be a waiver], with Matter of Haupt v Rose, 265 NY 108, 110-111 [entering stipulation to extend time to answer coupled with moving to dismiss the complaint and, in the alternative, separately state and number causes of action does not work a waiver]).

Removal was sought by the city because, based on its interpretation of the Federal law, the State court was preempted. In other words, the city, albeit incorrectly, thought that the State court, due to a supervening and pre-emptive Federal law, had no subject matter jurisdiction. So, too, its motion to dismiss in Federal court was based on lack of subject matter jurisdiction, namely, because on removal Federal jurisdiction will lie only if the State court from which the action had been removed had subject matter jurisdiction.

At no point was the city looking to the courts to justify withholding of the full wage and salary increases. Prior to assertion of the right to rely on the arbitration remedy, its use of the judicial process was limited to a legitimate testing of the subject matter jurisdiction of both the State and Federal courts. Once that issue was resolved, the reliance on the arbitration remedy was raised without unreasonable delay. It cannot be said, therefore, that there had been a waiver.

The city, it is true, did not mention its alternative right to rely on the arbitration remedy until the proceeding was remanded to State court. It would, of course, have been better and timesaving for the litigants and the courts if the city had initially asserted, if only contingently, its right to insist on arbitration. Determinative, however, is that the city’s reasons for seeking removal, and later moving to dismiss in the Federal court, were not inconsistent with an intention to arbitrate. (Cf. City Trade & Ind. v New Cent. Jute Mills Co., 25 NY2d 49, 55.)

Neither the dismissal of the petition nor the direction to proceed to arbitration, however, can stand. An agreement to arbitrate is not a defense to an action (De Sapio v Kohlmeyer, 35 NY2d 402, 404, n 1, supra). Thus, it may not be the basis for a motion to dismiss. (See, e.g., 8 Weinstein-Korn-Miller, NY Civ Prac, pars 7503.19, 7503.20.) CPLR 7503 (subd [a]) provides, instead, for a motion to compel arbitration. In the alternative, the court, without directing arbitration, may stay the action (see, e.g., Matter of Methodist Church of Babylon [Glen-Rich Constr. CorpJ, 29 AD2d 773, affd 27 NY2d 357; 8 Weinstein-Korn-Miller, NY Civ Prac, par 7503.18; see, also, McLaughlin, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 7503, p 275). The city, for some reason, did not move to compel arbitration. Instead, it moved for dismissal and for such other relief as the court deems just and proper. Since, as noted, a dismissal is improper, the appropriate remedy is a stay of the judicial proceeding.

Accordingly, the order of the Appellate Division should be modified, without costs, to eliminate the dismissal of the petition and the direction to proceed to arbitration, and the proceeding should be stayed.

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

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.


author:
      Per Curiam.
     Fuchsberg, J.

text:
    Norman Martin, Respondent, v Deborah L. Martin, Appellant.
    Argued June 8, 1978;
    decided July 13, 1978
    APPEARANCES OF COUNSEL

      Richard H. Weis and Allan H. Carlin for appellant.

      Joseph O. Giaimo for respondent.
   OPINION OF THE COURT

Per Curiam.

Petitioner father seeks permanent custody of two boys, now aged seven and eight, alleging that the mother, his second wife, who was awarded custody under the terms of a separation agreement incorporated into a Florida judgment of divorce, is an unfit parent (Domestic Relations Law, § 70). Special Term denied the father’s application, declining to exercise jurisdiction. The Appellate Division [52 AD2d 144] reversed, and ordered a hearing, at which the father was awarded custody. The mother appeals directly from the judgment at Supreme Court pursuant to CPLR 5601 (subd [d]) raising only the correctness of the reversal by the Appellate Division and the direction of a hearing (see Matter of Farber v U. S. Trucking Corp., 26 NY2d 44, 55, stating that a CPLR 5601, subd [d], appeal brings up for review only the prior order of the Appellate Division, and that the scope of review is "only” the nonfinal order).

The issue involves only application of the principles most recently expressed by this court in Matter of Nehra v Uhlar (43 NY2d 242). Since the children have been in New York largely because of the father’s repeated disregard of the terms of the Florida judgment, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the petition dismissed.

The father’s allegations of misconduct by the mother need not be detailed. It suffices to note that her conduct, if the charges are true, would likely make her an unfit parent, although despite these grave charges the father returned the children at least once after having retained them unlawfully. Not justified, however, was the father’s resort to self-help. He has, on three separate occasions, unlawfully taken or retained custody of the children in violation of the Florida divorce judgment. Moreover, even if the father is assumed to have been motivated by the interests of his children, the record reveals that the father several times left the children with his first wife in New Jersey or with his daughter in a college dormitory also in New Jersey.

The best interest of the children is, of course, the prime concern (Domestic Relations Law, § 70; Finlay v Finlay, 240 NY 429, 433-434 [Cardozo, J.]). That the children’s best interest must come first, however, does not mean that the courts of this State should disregard the prior Florida judgment and determine, as if writing on a clean slate, who would make a better parent. Except for interludes caused by the father’s wrongful retention of the custody of the children, the Martin boys lived in Florida from the time of their parents’ separation in 1970, when the younger boy was newborn, to the time of the father’s most recent abduction in December, 1976. If their mother be an unfit parent, that is a matter for the Florida courts to decide. Florida is where the boys have been raised, and where the witnesses are most likely to be found. It is not appropriate for the courts of this State, on the present record, to presume to say that the children would be better off with their father.

This deference to the determination of the Florida courts, contrary to assertions in the dissent, is not impliedly or expressly an application of forum non conveniens. Instead, principles of comity require that the Florida judgment not be lightly cast aside (Matter of Lang v Lang, 9 AD2d 401, 406-407, affd 7 NY2d 1029). Forum non conveniens is concerned with the convenience of parties and courts; the comity principle here is concerned with the welfare of children and restraint on abuse of the judicial process.

Certainly, it is beyond cavil that in custody cases principles of comity may not be rigidly applied to the detriment of the children (Matter of Bachman v Mejias, 1 NY2d 575, 581). But that is not the point. The point is rather that successive contradictory determinations by courts of sister States, even if with "jurisdiction”, are unseemly and intolerable in a Federal union. Such contradictory determinations are hardly justified by the flexibility of res judicata and full faith and credit principles in child custody matters. That is the sense of the holding in the Nehra case and of the Uniform Child Custody Jurisdiction Act adopted by many of the States to rid child custody matters of the incubus of child-snatching and forum-shopping.

The policy articulated in the Nehra case (supra) and in the Uniform Child Custody Jurisdiction Act, to become effective in New York on September 1, 1978, is a strong one (L 1977, ch 493; Domestic Relations Law, § 75-i, subd 2). Of course, it is not an absolute so long as the paramount concern remains the best interest of the child rather than the dignity of courts (see Matter of Lang v Lang, 9 AD2d 401, 405, supra). A different case would be presented if the immediate physical and mental welfare of children required, vitally and directly, that the children be retained in this jurisdiction and that the courts in this State determine who shall have custody of them. Factors raising those difficult issues are not present in this case. It is the courts of Florida that should adjudicate the ultimate custody dispute if "priority * * * be accorded to the judgment of the court of greatest concern with the welfare of the children” and "[djenigrated in rank * * * be the consequences of child-snatching” (Matter of Nehra v Uhlar, 43 NY2d 242, 251, supra). There is nothing presented in this case which suggests that the courts of the sister State are not competent or ready to do justice between the parties and for the children.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the petition dismissed.

Fuchsberg, J.

(dissenting). The majority does not dispute either the settled proposition that the physical presence of the children was sufficient to confer jurisdiction upon our courts (e.g., Matter of Hicks v Bridges, 2 AD2d 335, 339; cf. Matter of Berlin v Berlin, 21 NY2d 371, cert den 393 US 840) nor that the Florida decree, while entitled to great weight, is subordinate to the best interests of the children — the issue of "paramount concern” (Matter of Nehra v Uhlar, 43 NY2d 242, 250). Instead, in what smacks of an implicit and unwarranted obeisance to forum non conveniens and comity principles, its decision jeopardizes the children’s best interests.

The pertinent facts, not seriously disputed, speak for themselves:

Petitioner, a full professor, at whose current post at New York University he has been engaged since about 1962, married the respondent in 1969. Two children, currently ages seven and eight, were born of the marriage. In December, 1970, shortly after the birth of the second child, respondent abandoned her husband and set up a residence in Clearwater, Florida. Her departure eventually led to a divorce, prior to which the parties entered into a separate agreement in which they agreed that the children, who were then still close to the baby stage, were to be in the custody of the mother with visitation rights for the father. This provision was incorporated in the final degree in 1972.

In December, 1974, the father requested that the children come to visit him for the Christmas holidays. The respondent then sent them to New York willingly, although it is claimed that an oral agreement to return them in January was violated when the petitioner kept the children in Washington, D.C., and in New Jersey until they were returned to Florida in June, 1975. The children next came to New York in November, 1975, once again voluntarily. It was on that occasion that the petitioner commenced this action seeking custody. Thus, at no time prior to this custody proceeding had the father removed the children from their Florida domicile.

In the intervening time, many troubling things about the wife’s life-style, whose nature was such that it was bound to have a most pernicious effect upon the children, had come to the father’s attention. We can no more ignore that now than he did then. Certainly that his marriage to the respondent nine years ago was preceded by the unorthodox relationship under which they previously had lived together did not require him to abdicate his concern as a father these many years later. And the majority’s gratuitous characterization of him as a "nomad” simply because his work as a consultant in his field would at times take him out of town hardly changes the graphic picture of the mother image in this case.

As the petition describes in detail, at one point the mother was evicted from her apartment because of her wholesale practice of entertaining male visitors, most of whom were transients or drug addicts. The eviction brought no metamorphosis; additional affairs with at least 10 different men, each identified in the record by name, are reported. According to a neighbor, respondent admitted sleeping in the same bed as her "boyfriends” and her children in order to help them become "sexually uninhibited”. She has been linked to the sale of marihuana and introduced its use to the children. On one occasion, her house was included in a successful police "raid” for drugs. On another, a complaint was filed against her after the police had been called to her locked car, where the children, then three and one-half and one and one-half, had become hysterical while she was sojourning at a bar. Her denial of only some of these incidents — and that by affidavit only, though she did not hesitate to come to New York on other occasions — covers but some of the tiles in this unhappy mosaic.

Thus, it is difficult to imagine, in the context of a still viable and ongoing custodial relationship, circumstances more clearly adverse to the best interests of formative children. If ever great weight is to be afforded that consideration in determining whether to exercise jurisdiction, this case demands it. For, "not acceptable as simply an 'alternative lifestyle’ which people in an open society are entitled to follow, and courts are required to adopt as appropriate for the rearing of a little child” is the life-style allegedly led by the mother of the children with whom we are here concerned (Matter of Ray A. M., 37 NY2d 619, 624).

It is not surprising then that Special Term, after holding the factual hearing which in its discretion the Appellate Division understandably believed was urgently required in the interests of the children (cf. Matter of Ray A. M., supra; Bunim v Bunim, 298 NY 391), found that in this instance the mother’s "conduct apparently is one in which she has lived a life which appears not to be a proper one for the bringing up of children of tender and adolescent age * * * [I]t would not be in the best interests of the children to remain in the custody of the respondent.”

Especially under these circumstances, I perceive no basis for overturning the Appellate Division’s order on the ground that our courts should have declined to exercise jurisdiction in the first instance. Indeed, in Irrigation & Ind. Dev. Corp. v Indag S. A. (37 NY2d 522, 525), we noted that it is our established policy not to "interfere with the Appellate Division’s exercise of discretion in granting or denying a motion to dismiss on the ground of forum non conveniens unless there has been an abuse of discretion as a matter of law or unless the Appellate Division, in exercising that discretion, has failed to take into account all the various factors entitled to consideration”. We "do not substitute our evaluation of the weight to be attached to such factors, singly or in combination, for that of the lower courts” (Hadjioannou v Avramides, 40 NY2d 929, 931).

If such a discretion is not to be lightly interfered with in a commercial context, how much more important is it that it not be disregarded where the stakes are the best interest of young children? In particular, the relegation of the New York-domiciled husband to a custody suit in Florida in the factual .and legal posture of this case is an interference with discretion in which I do not believe we should engage.

Indeed, the welfare of infants "transcends the rule of comity” as well (Matter of Bachman v Mejias (1 NY2d 575, 581). Therefore, it matters not that the majority apparently expects the result in Florida to be consistent with that of Special Term. The vagaries and cost of duplicative litigation 1,500 miles away are not inconsequential. Most important, to shuttle the children, who have now been in the care of the father for a considerable time, back to the mother and the milieu in which she has chosen to live, could not be less desirable (Matter of Ebert v Ebert, 38 NY2d 700, 703).

The point is that, under whatever rubric may be brought to bear — be it comity, forum non conveniens or other — the particular mix of factual and legal considerations in this case makes it an especially inappropriate one in which to substitute our judgment as to whether jurisdiction should be accepted for that of the Appellate Division of our court of general jurisdiction.

In short, unless we are to subscribe to the proposition that a determination as to whether the courts of this State should retain jurisdiction of custody matters must be made without any factual inquiry beyond the papers presented, the judgment and the order of the Appellate Division brought up for review should be affirmed.

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

Judgment reversed, etc.

       Explicit reference in the dissent to the charges of misconduct by the mother, however irrelevant, suggests response.
      The couple had met when the mother was employed as a clerical assistant by a professor of law in the same university in which the father was a professor in the business school. She is much younger than the father and moved to Florida with the children only upon breakup of the marriage.

        The misconduct detailed in the father’s affidavit is not "unquestioned”; it is disputed. The mother denies, in her answering papers, most of the "aifairs” alleged by the father. She also denies any police raid on her home. And she denies sleeping with male friends in the presence of the children.
      Moreover, the mother’s affidavit, if believed, indicates that the father may be a less than fit parent. The father, a man then over 50, divorced his wife of many years only two months before marrying petitioner. At the time of their marriage, the couple’s oldest child was already born, and the mother had had two abortions as a result of her relations with the father. In response to allegations that the mother smoked marihuana in front of the children, the mother accuses the father of doing the same. The father appears to be something of a "nomad”, and, as noted, when inconvenient to care for the children himself, he has left them out of State with his first wife or his daughter, then a college student.
      None of this is relevant on the limited appeal before the court. The charges and countercharges have never been resolved. The determination at the hearing referred to in the dissent is not brought up for review on this appeal pursuant to CPLR 5601 (subd [d]). At Supreme Court the only witnesses who testified were the father and a single hostile neighbor of the mother in Florida. The mother, evidently because the hearing was held in New York far from all witnesses, did not participate in the hearing and called no witnesses. Thus, the inferences drawn in the dissent are unsupported in the evidentiary record before this court.

      . The majority’s statement that the petitioner "abducted” the children in 1976 by having them flown to New York ignores the fact that, by that time, though its judgment had not been formally entered, the Supreme Court had filed its opinion awarding custody to the father. Moreover, since the order of the Appellate Division which had found that New York had jurisdiction preceded that event, it should not now be considered as a basis for a reversal (see Cohen and Karger, Powers of the New York Court of Appeals, § 73, p 315, n 21).

      . Though this hearing took place subsequent to the entry of the Appellate Division order from which the wife appeals, we are not required to ignore it (cf. Cohen and Karger, Powers of the New York Court of Appeals, § 168, p 640).

      . By choosing to appeal under CPLR 5601 (subd [d]) respondent waived appellate review of these findings (see, e.g., Matter of Farber v U. S. Trucking Corp., 26 NY2d 44, 55).


text:
    In the Matter of Port Washington Union Free School District, Appellant, v Port Washington Teachers Association, Respondent.
    Argued June 7, 1978;
    decided July 13, 1978

      APPEARANCES OF COUNSEL

      Jerome H. Ehrlich for appellant.

      David N. Stein and James R. Sandner for respondent.
   OPINION OF THE COURT

Memorandum.

We have said previously that, under the Taylor Law (Civil Service Law, § 204, subd 1), the scope of permissible collective bargaining between boards of education and teachers associations concerning terms and conditions of employment is broad, "limited by plain and clear, rather than express, prohibitions in the statute or decisional law” (Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743, 744). Equally well established is the restriction upon the freedom to arbitrate imposed by public policy, whether rooted in statute or decisional law or otherwise. (Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-617.)

The collective bargaining agreement at issue in this case provided that preference for the filling of vacancies or new positions be given to members of the Port Washington instructional and administrative staffs when the qualifications of applicants were substantially equal. Upon the occurrence of a vacancy in the position of junior varsity wrestling coach, three individuals applied for the position, only two of whom, Mr. Sperrazza and Mr. Di Pietro, were members of the district instructional staff and, thus, of the unit represented by respondent. Appellant eliminated Mr. Di Pietro as unqualified for the position. Thereafter, appellant appointed Mr. Cotlowitz, the nonmember of the bargaining unit, to the position of wrestling coach.

On these facts, we see no reason to vacate the arbitrator’s award, ordering appointment of Mr. Sperrazza to the vacant position, as violative of public policy. Concededly, Mr. Sperrazza was qualified for the position of wrestling coach; otherwise appellant would have eliminated him from consideration as it had Mr. Di Pietro. In ordering Mr. Sperrazza’s appointment, the arbitrator merely selected the only member of the bargaining unit whom appellant had considered qualified to fill the vacancy. The arbitrator was not presented with a field of applicants from which he took it upon himself to select the individual who, in his judgment, was most qualified for the position of wrestling coach. Were that the case, we would be faced with a different question, the answer to which we need not express an opinion today.

In concluding as we do, we are not unmindful of the duty imposed upon boards of education to employ qualified teachers. (Education Law, § 1709, subd 16.) We have recognized before that the surrender in collective bargaining agreements of powers granted to boards of education by statute to an arbitrator may later prove inconvenient or even disruptive of the operation of a school district. This, however, is a contingency which should have been considered at the bargaining table. (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583-584.) The order of the Appellate Division should be affirmed, with costs.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Randolph Peter Tompkins, Appellant. The People of the State of New York, Respondent, v Randolph Peter Tompkins, Appellant.
    Argued June 8, 1978;
    decided July 13, 1978

      APPEARANCES OF COUNSEL

      John J. Hayden and Bernard D. Brady for appellant.

      David S. Ritter, District Attorney (Michael Schwartz of counsel), for respondent in the first above-entitled action.

      John R. King, District Attorney (Bridget R. Rahilly and Arthur A. Baker of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division are reversed, and the orders of the Orange County Court and of the Dutchess County Court are reinstated, and the cases remitted for further proceedings on the indictments. On December 23, 1974 defendant was arrested for an alleged robbery committed at a Seven-Eleven store in Fishkill, and was taken to the Fishkill Station of the State Police. After being read his Miranda rights, defendant asked why he was there and was told that an accomplice had given a statement implicating him in the robbery. He asked to see the statement and after reading it he became angry and stated that “if people want to talk, I’ll do some talking.” Defendant then requested and was given permission to call his mother. A few minutes later he received a telephone call from his attorney after which he told the investigating officer that his attorney had told him not to talk to the police but he was going to talk anyway. The police then interrogated him, obtaining confessions to the Orange County robbery and to a separate robbery which occurred in Dutchess County. In the prosecutions against defendant in the respective counties defendant moved to suppress the statements which motion was granted by both County Courts. The Appellate Division reversed each order and held the confession admissible.

Defendant contends that the statement was taken in violation of his right to counsel for "[office a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer” (People v Hobson, 39 NY2d 479, 481). The People concede, as they must, that an attorney representing defendant had entered the criminal proceeding but contend that defendant waived his rights, urging that the waiver was made with the assistance of counsel simply because he had talked with his counsel on the phone. This attenuated interpretation of the meaning of "presence of counsel” is totally unacceptable. Such a theory runs completely afoul of the very basis of the rule enunciated in Hobson (p 484) where we said so clearly that "[t]he rule that once a lawyer has entered the proceedings in connection with the charges under investigation, a person in custody may validly waive the assistance of counsel only in the presence of a lawyer breathes life into the requirement that a waiver of a constitutional right must be competent, intelligent, and voluntary”. If a mere telephone call from counsel would serve this function it would be a short breath indeed.

The only remaining question is whether defendant’s statement constitutes a spontaneous admission under the rule enunciated in People v Kaye (25 NY2d 139). Unlike the situation in that case, the defendant here made no "spontaneous volunteered admission” at all. At best, it could be considered only as an attempt to make a spontaneous volunteered waiver of his right to counsel. It is suggested that we expand the Kaye rationale and hold that the making of his waiver thereby purifies the subsequent interrogation. We decline to do so. The Hobson rule is an unequivocal protection of basic rights guaranteed by our Constitution (People v Hobson, 39 NY2d 479, 483, supra; People v Arthur, 22 NY2d 325, 328) and once an attorney has entered a criminal proceeding on behalf of a defendant, the defendant in custody may not waive his right to counsel, spontaneously or otherwise, in the absence of the lawyer.

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

In People v Tompkins: Order reversed, the order of Orange County Court reinstated, and the case remitted to the County Court for further proceedings on the indictment in a memorandum.

In People v Tompkins: Order reversed, the order of Dutchess County Court reinstated, and the case remitted to the County Court for further proceedings on the indictments in a memorandum.


text:
    The People of the State of New York, Respondent, v George Torres, Appellant.
    Argued June 9, 1978;
    decided July 13, 1978

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (James M. Byrnes of counsel), for appellant.

      Lawrence T. Kurlander, District Attorney (Jeffrey Chamberlain of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Defendant George Torres appeals from an order of the Appellate Division which affirmed a judgment of Supreme Court convicting him, upon his plea of guilty, of robbery in the third degree and sentencing him to an indeterminate term with a maximum of seven years. At issue on this appeal is whether the sentencing court was required to fulfill a promise to defendant, made at the time his plea was accepted, that he would be allowed to withdraw that plea if the court were to refuse to adjudicate him a youthful offender. In light of the unusual circumstances, the order appealed from should be reversed and the case remitted to Supreme Court, Monroe County, for further proceedings in accord with this opinion.

Defendant is 16 years old, undereducated and culturally disadvantaged; indeed, a perusal of the record indicates considerable weakness in his understanding and grasp of the English language. He was indicted for robbery in the second degree, assault in the second degree, and petit larceny, all stemming from an incident in which defendant, along with a 27-year-old "friend” and an unidentified third person assaulted and robbed one Nicholas Testa.

Defendant was represented by the Monroe County Public Defender’s office. Following some discussion between defendant, the Assistant Public Defender, and the Assistant District Attorney in charge of the case, it was agreed that defendant would plead guilty to a reduced charge of robbery in the third degree, in full satisfaction of the indictment, if he could be assured of youthful offender treatment. This agreement was revealed to the Judge presiding, who quite properly told defendant that he could make no promise of youthful offender status until he had an opportunity to review the presentencing report (CPL 720.20, subd 1), but further stated that if it were decided not to adjudicate defendant a youthful offender, the court would give him an opportunity to withdraw his plea at that time. Before accepting the plea, the court discussed at some length the effect of a plea of guilty and the implications of a youthful offender adjudication. No satisfactory explanation was given, however, as to the effect of a guilty plea should the court not consider defendant a youthful offender.

Several weeks later, defendant appeared for sentencing. As if for the first time, defendant’s counsel asked the court to consider youthful offender treatment. The court refused to make a youthful offender finding, and instead sentenced defendant to an indeterminate term with a maximum of seven years; but defendant was given no opportunity to withdraw his plea. No mention was made of the court’s prior promise, nor did anyone make any attempt to explain to defendant, whose lack of understanding of legal matters is plain, the significance of what was happening. Indeed, as the colloquy between defendant and court makes all too clear, even after sentence was imposed defendant remained under the misapprehension that he would be treated as a youthful offender.

Initially, we reject any suggestion that the acceptance of the plea in the first place was improper in any way. The defendant was informed of the realities of his situation, as they then appeared to be, and the effect of his guilty plea should he be adjudicated a youthful offender was carefully explained to him. Unfortunately, the same punctilious process was not continued at sentencing. A fundamental part of the plea bargain was the promise by the court that if defendant were not adjudicated a youthful offender, he would be allowed to withdraw his plea. That promise, given by the State, was an essential inducement of the guilty plea, and yet it was never fulfilled due to an apparent lapse on the part of the court, the prosecutor, and the Public Defender, all agents of the State. While such a lapse is perhaps understandable in light of the heavy caseloads with which those officials are burdened, it may not serve to justify an encroachment upon the right of such a defendant to a minimal standard of fair treatment by the ultimate representatives of our criminal justice system.

It is a basic principle of our law that "a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” (People v Selikoff, 35 NY2d 227, 241, cert den 419 US 1122, citing Santobello v New York, 404 US 257; accord People v Esposito, 32 NY2d 921, 923; see, also, Chaipis v State Liq. Auth., 44 NY2d 57). No lengthy exegesis is necessary to prove that this young, unsophisticated, and untutored defendant has not been properly treated by the State. While the guilty plea of this 16-year-old defendant was orginally voluntary, it was in a. sense rendered involuntary ab initio by the subsequent failure of the court to fulfill the promise to allow him to withdraw that plea should the court refuse or fail to adjudicate him a youthful offender. In the space of a few short minutes, defendant’s fate was altered significantly, without any explanation by those upon whom he justifiably relied. Although the treatment he might receive as a youthful offender had been carefully explained to him when his plea was originally accepted, little or nothing was revealed to him, then or later, of the substantially different consequences of his guilty plea should the court decide not to adjudicate him a youthful offender. When the court at sentencing revealed his decision not to give defendant youthful offender treatment, he should have explained to defendant the ramifications of that decision and should have fulfilled the promise to afford defendant an opportunity to withdraw the guilty plea. The failure to do so requires a reversal.

Rather than simply vacating the guilty plea, however, it is preferable to remit the matter to Supreme Court for resentencing. At that time, the court should reconsider the decision to deny defendant youthful offender treatment in light of the prior promise. Should the sentencing Judge nonetheless adhere to the decision not to adjudicate defendant a youthful offender, the court must then provide defendant with an opportunity to withdraw his guilty plea and put the People to their proof at a trial.

Accordingly, the order appealed from should be reversed, and the matter remitted to Supreme Court, Monroe County, for further proceedings in accord with this decision.

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

Order reversed, etc.


text:
    In the Matter of Anonymous et al., Appellants. Albany County Bar Association, Respondent.
    Argued May 30, 1978;
    decided July 13, 1978

      APPEARANCES OF COUNSEL

      John P. MacArthur for appellants.

      Francis Bergan for respondent.
   OPINION OF THE COURT

Per Curiam.

The question certified by the Appellate Division is addressed to the denial of a motion to dismiss a single-numbered paragraph of what can only realistically be treated as an integrated petition. In our analysis the propriety of the proposed plan for the provision of legal services should not be judged on the basis of this single facet. Accordingly, the question certified by the Appellate Division is not "decisive of the correctness of its determination or of any separable portion of it” (CPLR 5713) and the present appeal must be dismissed. In this circumstance it would be inappropriate to express any view as to the issues raised in the underlying litigation.

Appeal dismissed, without costs.


text:
    In the Matter of Pamela Clemente, Appellant, v John J. Fahey, as Commissioner of the Albany County Department of Social Services, Respondent, and Stephen Berger, as Commissioner of the New York State Department of Social Services, Appellant.
    Argued June 5, 1978;
    decided July 13, 1978

      APPEARANCES OF COUNSEL

      Joel F. Spitzer for Pamela Clemente, appellant.

      Louis J. Lefkowitz, Attorney-General (Lew A. Millenbach and Jean M. Coon of counsel), for Stephen Berger, as Commissioner of the New York State Department of Social Services, appellant.

      Stanley G. Walker, Jr., Robert Lyman and Philip R. Murray for respondent.
   OPINION OF THE COURT

Order reversed, with costs payable to appellant-petitioner by respondent Commissioner of the Albany County Department of Social Services, and the judgment of Supreme Court, Albany County, reinstated (Matter of Beaudoin v Toia (Jorczak), 45 NY2d 343, decided herewith).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Charles Culhane and Gerald McGivern, Appellants.
    Argued June 7, 1978;
    decided July 13, 1978

      APPEARANCES OF COUNSEL

      William M. Kunstler, Michael E. Tigar (admitted pro hac vice), Karen K. Peters and John Mage for appellants.

      E. Michael Kavanagh, District Attorney (Paul Gruner and Edward M. P. Greene of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We have examined the several contentions advanced by defense counsel and conclude that there should be an affirmance. We comment briefly with respect to some of such contentions.

On the basis of careful postmortem dissection it can be said that in charging the jury the trial court’s marshaling of the evidence fell short of the ideal. The court has an obligation to marshal or refer to the evidence, however, only to the extent necessary to explain the application of the law to the facts (CPL 300.10, subd 2). The critical issue on appellate review is whether the deficiency, if any, was such as to deny either defendant a fair trial. We are satisfied that the material issues, both factual and legal, were made abundantly clear to the jury in consequence, inter alia, of the informed efforts of competent defense counsel, and that there was no such inadequacy of explanation or other error of commission or omission as to result in prejudice to either defendant.

Several of the trial court’s evidentiary rulings which are challenged by defendant fell within the recognized authority of the Trial Judge involving questions as to the admissibility of evidence offered with respect to collateral matters. We include in this category the exclusion of evidence sought to be introduced to impeach the credibility of Deputy Sheriff Singer —the record of the proceeding before the State of New York Employees’ Retirement System in which Singer’s application for accidental disability retirement based on injuries suffered during the escape attempt was denied, and evidence with respect to. his receipt from the Police Officers’ Association of an award in which there was a recital of events at some odds with his testimony. Similarly, evidence of Bowerman’s record of past armed escapes and of his psychiatric disorders would have gone only to the collateral issue of his role in the escape attempt. Nor do we find any error in the trial court’s rulings as to the scope of the People’s cross-examination of either defendant as to prior convictions (including the facts underlying such convictions) and acts of misconduct. Neither was it error to admit the photograph of the deceased Deputy Sheriff. We find no abuse of discretion as a matter of law. in any of these evidentiary rulings. It is, of course, not determinative or even persuasive that apparently contrary rulings have been upheld in other cases in what may seem to be similar situations.

Within the ambit of the trial court’s responsibility was the preliminary factual determination that McGivern’s statement of asserted innocence was not spontaneous so as to qualify it for admission under the exception to the hearsay rule. There was no error in the resolution of that question when the statement was not made until McGivern’s arrest some two and one-half hours after the commission of the crime.

Finally, we find no error in the denial of defendants’ pretrial motions to be permitted to appear as their own cocounsel or in the denial of the posttrial motion to set aside the verdicts because of the failure of the People to produce the photograph of Bowerman after his death.

In sum, we agree with the majority at the Appellate Division that there was no error which calls for a reversal of the conviction of either defendant.

Fuchsberg, J.

(dissenting). This murder case has been tried three times. In the first trial, the jury disagreed. The second, which resulted in convictions and sentences of death, was followed by unanimous reversal by this court (33 NY2d 90), essentially for the failure of the Trial Judge to excuse biased veniremen for cause on the voir dire. Because the third trial was marred by the exclusion of what I believe to be competent, relevant and potentially exculpatory evidence, I am constrained to vote for reversal and another trial.

Since the salient facts are adequately detailed in our prior opinion, they need only be briefly recounted here. On September 13, 1968, three inmates of the Auburn State Prison, Charles Culhane, Gerald McGivern and Robert Bowerman, were being taken by automobile to a courthouse in Westchester County in connection with a coram nobis proceeding brought on behalf of Culhane. Two Deputy Sheriffs, Joseph Singer and William Fitzgerald, occupied the front seat. The three manacled prisoners, joined to the vehicle by leather security belts, were in the rear. The party never reached Westchester, the trip ending en route in the death of Fitzgerald and Bowerman and near-mortal gunshot wounds for Culhane and McGivern.

The three survivors were the only eyewitnesses. Deputy Singer, the single one available to the People in effect was arrayed against the two surviving prisoners, each of whom testified in his own behalf at the trial.

According to the story related by Singer, Bowerman and Culhane attacked the deputies from the rear, using their locked handcuffs to choke the two officers as McGivern seized Singer’s revolver and fired it at Fitzgerald. Singer went on to state that he then fired at the two defendants, though the medical evidence tended to refute his assertion that he was choked by the handcuffs and the ballistics evidence introduced similar doubts as to his version of the shooting.

Appellants described the events very differently. Their claim was that it was only Bowerman, who, after cutting his own security belt with a concealed razor blade and unsuccessfully trying to persuade his fellow prisoners to do the same, struck at Fitzgerald and Singer and grabbed the latter’s gun. As they told it, Bowerman, while holding them at gunpoint, had then undone Culhane’s belt and forced Culhane in turn to undo McGivern’s belt, at which point Fitzgerald suddenly turned, gun in hand, precipitating an exchange of fatal shots between himself and Bowerman.

Thus, the trial’s central factual issue was clearly framed: Had Bowerman, whose penal dossier included a prior history of mental disturbance and futile but violent efforts to escape, set in motion the tragic events of September 13 on his own, with the appellants playing only an unwilling and unwitting part, as they contended, or, instead, had Culhane an Mc-Givern actively aided and abetted Bowerman, as Singer swore?

To back their claim that Bowerman had initiated the escapé episode and had carried it through to its grisly end on his own, the appellants, among other things, sought to introduce the official prison and medical records chronicling his past attempts to free himself of prison and police custody. These records would have established that Bowerman was "suffering from a psychosis” and had been frustrated in his plans to escape on at least three earlier occasions. During the 14 years immediately preceding the events which resulted in the two killings involved in this case, he pursued repeated methods of self-release, ranging all the way from suicidal slashing of his wrists to a try at winning his freedom by shooting his way past a detective whose firearm he had seized. As recently as 1964, a Corrections Department guidance counselor officially reported him "highly dangerous”. Earlier, he had spent four months in the Matteawan State Hospital for the criminally insane after the State prison authorities at Elmira had at various times observed that he was poorly adjusted, depressed, and emotionally unstable. Significantly, in every one of these documented events, with the possible exception of one at the Brooklyn House of Detention, where an entry indicated that "it was rumored he planned a spectacular jail break with the aid of a girl friend on the outside”, he was the lone participant.

The majority, in affirming, nevertheless finds no "abuse of discretion” in the exclusion of this documentary evidence by the trial court, both when offered directly or as grist for cross-examination. It is difficult to understand how these records, unimpeachable in their source and having been kept in the regular course of business (cf. People v Foster, 27 NY2d 47, 52; Kelly v Wasserman, 5 NY2d 425, 429), could be claimed to have been collateral, since they bore directly on the main, and most critical question of whether the conceded culpability of Bowerman was shared or unshared with the defendants.

Of course, the jury would not have been compelled to conclude that, because Bowerman had demonstrated a propensity for violent jailbreaking and an equally consistent penchant for practicing it without the aid of others, he did in fact follow those patterns in this instance. But, it can hardly be denied that it may very well have made a world of difference to the triers of fact in deciding whether the escape was the work of but one man, Bowerman. Had they been aware that Bowerman was the only one of the three prisoners with a known propensity for endeavoring to escape and that he had never demonstrated that propensity in alliance with other prisoners, instead of being left, as the jurors were here, with an impression that none of the three prisoners appeared to have had any greater inclination to escape than the others, it is conceivable that the defense would have been credited.

Thus, the proffered proof was not only reliable, it was also relevant and material, on the principle that it is a defense to a criminal accusation that a person other than the defendant committed the crime. For that purpose, "similar acts * * * can be used to exonerate an innocent accused, where the acts evidencing the plan are those of a third person not the defendant” (2 Wigmore, Evidence [3d ed], § 341, p 245 [emphasis in original]; cf. People v Fiore, 34 NY2d 81). Under the theory of the defense, Bowerman must be considered a "third party”. As I have already indicated, the defendants’ version of the events was not that Bowerman had "instigated” the escape or acted "in conjunction” with them. To the contrary, they were "vehement” in their position that it had been "done by Bowerman alone”.

Consequently, the admission of Bowerman’s "similar acts” to help establish the defendants’ noncomplicity in the escape and the murder would have been in conformity with the proposition that the most acceptable "test of relevancy is whether a reasonable man might believe the probability of the truth of the consequential fact to be different if he knew of the preferred evidence” (1 Weinstein’s Evidence, par 401 [07], p 401-27; see, also, Thayer, A Preliminary Treatise on Evidence at Common Law, pp 264-265 [1898]; McCormick, Evidence [2d ed], § 185, p 437).

Furthermore, uncharged immoral or criminal acts are admissible if they are probative of a matter in issue (e.g., People v Jackson, 39 NY2d 64; People v Molineux, 168 NY 264). Although generally excluded when the prior conduct involved is that of an accused (see People v Fiore, 34 NY2d 81, supra), this is for reasons of policy rather than logic (People v Mayrant, 43 NY2d 236, 239; People v Zackowitz, 254 NY 192, 198). So, when excluded, it is rarely for lack of relevancy, but because of inherent prejudice to the accused (see People v Davis, 44 NY2d 269, 274). However, when, as here, the prior conduct of a third party is at issue (cf. People v Duffy, 44 AD2d 298, 306, n 3 [Shapiro, J.], affd 36 NY2d 258, cert den 423 US 861), absent countervailing considerations of prejudice, the relevancy and materiality of the evidence is to be judged on its own merits.

On that score, it has been well said that, "one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again, [and therefore] evidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions” (Halloran v Virginia Chems., 41 NY2d 386, 391, a civil case whose principles are applicable to criminal cases as well [CPL 60.10]; see, also, People v Miller, 39 NY2d 543). In the practical application of this experiential principle, there appear to be no valid grounds for distinguishing between a case where the dispute revolves about an issue as to whether a person acted alone or in concert and a case in which the issue posed is whether the person acted at all.

Moreover, if there were a valid evidentiary rule of exclusion —and the majority points to none — the evidence would still have to be received on the even more fundamental ground that its exclusion violated the constitutional right of the appellants to present exculpatory evidence on the issue on which, in the end, their guilt or innocence turned (see, generally, Clinton, Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind L Rev 713).

As Chambers v Mississippi (410 US 284), which overturned the exclusion of a third party’s confession as hearsay, makes clear, the constitutional right of a defendant "to present witnesses in his own defense” (p 302) is not to be yielded up to unduly restrictive evidentiary practice. It simply will not do to point to a technical rule of evidence or an incident of judicial discretion which violates that credo. This is not to say that criminal defendants are entitled to an open sesame in the reception of evidence. Rather, the right to present exculpatory material is to be measured by the "fundamental requirements of fairness” (United States v Booker, 480 F2d 1310, 1311; see, also, Davis v Alaska, 415 US 308). That was not done here.

Finally, in view of what I find to be the decisiveness of this issue, it is unnecessary to discuss other disturbing aspects which, singly or in combination, added to the denial of a fair trial. Included among these was the charge to the jury, which the two dissenting Justices at the Appellate Division cogently criticized (57 AD2d 418, 421).

Accordingly, my vote is for reversal and a new trial.

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

Order affirmed in a memorandum.

       The evidence offered consisted of 80 pages of the undifferentiated, unredacted files of the Corrections Department with respect to Bowerman covering a period of some 18 years. The dissenter now urges that this evidence, offered en masse, should have been admitted on the theory that a few selected portions might have tended to establish a propensity on Bowerman’s part to make escape attempts alone and unassisted. Such proof would have been irrelevant unless it were additionally shown that the prior escape attempts had been made in comparable circumstances, including the presence but nonparticipation of other potential escapees. There was, however, no tender of any such additional showing. No claim was made that the prior escape attempts were made in comparable circumstances, and examination of the file discloses great dissimilarity of circumstance. In fact the files were collectively offered for a much broader purpose: "to show what kind of individual [Bowerman] is”, in support of the defense theory that the defendants were "the victims of the maneuvering, manipulations” of Bowerman. This mass of miscellaneous records, not directly related to the events comprising the charges against these defendants, would only have produced confusion, invited speculation and inevitably have led the jury into excursions into collateral matters. The trial court excluded this remote and potentially confusing evidence on the ground that it was not "competent or relevant”. The authorities cited by the dissenter involve situations in which proof that a third party had been the criminal actor would have established the innocence of the defendant. By contrast here, proof that Bowerman might have been disposed to instigate this escape attempt would not have exonerated these defendants for their participation in it.

      . In this court’s earlier opinion we noted that the prosecutor’s evidence "presented substantial questions of credibility” (33 NY2d, at p 96, n 1).

      . The trial record goes far beyond the majority’s suggestion that the excluded proof was offered solely to show Bowerman’s general bad character. The colloquy which followed the offer could have left no doubt in the Trial Judge’s mind but that it was also directed in particular to those portions of the public records relating to Bower-man’s solo escape ventures. As defense counsel put it, a primary purpose was to show that Bowerman "didn’t care about his life, this man, the records would reflect, was involved in escapes” and, for that reason, counsel "picked out those portions which we considered essential” because they went "to the very heart of the issue, who precipitated this break, who killed Fitzgerald, was it done by Bowerman alone or was it done by Bowerman in conjunction with our clients, which we vehemently dispute’’. The District Attorney did not misconceive this purpose. In objecting, he stated, "This simply goes to show propensity which is not admissible”. And the Trial Judge, in explaining his ruling, after merely remarking that the evidence would be "irrelevant” and "incompetent”, fell back to the unelaborated position that "it would be highly unfair to permit the evidence of this type and it would deprive the People of a fair trial”. Thus, the very issues raised on this appeal — that the records were relevant and competent and that their exclusion or reception would affect the fairness of the trial —were expressly passed upon at trial and so preserved for our review. (Emphasis supplied.)


author:
      Per Curiam.
     Jasen, J.

text:
    In the Matter of Isamae Dunbar et al., Respondents, v Philip Toia, as Commissioner of the New York State Department of Social Services, et al., Appellants.
    Argued June 7, 1978;
    decided July 13, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Herbert J. Wallenstein, Samuel A. Hirshowitz and Gerald Slotnik of counsel), for Philip Toia, appellant.

      Stuart Miller, John Falk, Ellice Fatoullah, Michael D. Hampden and Ian F. Feldman for respondents.
   OPINION OF THE COURT

Per Curiam.

We agree with the Appellate Division that in this instance petitioner Linda Dunbar, a recipient of aid to dependent children for herself and her two children, was entitled "[t]o examine the contents of [her] case file and all documents and records to be used by the agency at the [fair] hearing” to be held in response to her request therefor.

In February, 1977 Linda requested a fair hearing with respect to her claim of inadequacy of her grant of public assistance and food stamps, and in connection with that request she demanded access to her entire case file. At a prefair hearing conference, at a subsequent meeting with agency representatives and finally at the fair hearing itself, her request for access to the case file was renewed. In each instance the request was denied. The fair hearing was adjourned without being completed.

At the end of July, 1977 Linda received notice from the agency informing her of the agency’s intention to terminate her receipt of public assistance because she was in possession of assets which rendered her ineligible. Another fair hearing was immediately requested, and in mid-August Linda’s representative sent a letter to the agency demanding access to her entire case file. The present CPLR article 78 proceeding was then instituted to gain access to the file. Both courts below have ordered the agency to grant her access to her entire case file subject to the right of the agency to redact names of informants who are not to be witnesses. We now affirm that disposition.

New York State, having elected to participate in the Federal aid to families with dependent children program is required to comply with the applicable Federal regulations. (Hagans v Lavine, 415 US 528, 530, n 1; Matter of Jones v Berman, 37 NY2d 42, 52-53.) The pertinent regulation is found in 45 CFR 205.10 (a) (13) (i): "(a) A State plan * * * shall provide for a system of hearings under which: * * * (13) The claimant, or his representative, shall have adequate opportunity: (i) To examine the contents of his case ñle and all documents and records to be used by the agency at the hearing at a reasonable time before the date of the hearing as well as during the hearing”. (Emphasis added.) This regulation, at least in its unpunctuated form, seems to accord Linda the right of access to her case file that was granted her at Special Term and affirmed at the Appellate Division.

The corresponding State regulations, found at 18 NYCRR 357.3 (c), 358.9, 358.12 (a) and (b), and 358.16 (d), purport to limit the recipient’s right to an opportunity to examine only such documentary evidence as the social services official plans to use at the fair hearing. Respondent commissioners advance cogent reasons why the unlimited access accorded by the Federal regulation may in some instances threaten seriously to hamper sound administration of public assistance in general and even hinder the proper handling of individual welfare cases. We are therefore invited by respondents to cut back the apparent sweep of the Federal regulation and to lay down precise access rules of general applicability to all welfare recipients, thereby also resolving differences which appear to have arisen in the Appellate Divisions (e.g., Matter of Del Monte v Lascaris, 55 AD2d 1043).

We suggest that any set of standards for the resolution of the broad issues with respect to the right of welfare recipients to have access to their case files is much more appropriately to be designed at the administrative or even the legislative level of government; the judiciary is less well equipped to draft procedural rules for the settlement of such differences as exist or may rise, and may not do so unless compelled in extraordinary circumstances by applicable constitutional or equitable principles.

From one point of view the degree and manner of disclosure adequately to protect the legitimate interests of the welfare recipient may vary from situation to situation. From another perspective, and similarly, there may well be several facets of the problem appropriately to be considered from the point of view of the welfare agency — with respect both to the confidentiality of informant sources and to the integrity and practicability of welfare administration and particularly fair hearing procedures. The volume of requests for fair hearings, and thus the practical implications of the promulgation of any set of rules, gives us pause. Notwithstanding the good faith and best efforts of the litigants to describe the reaches and ramifications of the problem by means of hypothesized and imagined situations augmenting the fact pattern revealed in this particular case, a court has no means for gathering the relevant data, the analysis of which should be undertaken preliminary to drafting balanced and workable disclosure rules. In addition to the promulgation of a usable definition of the scope of disclosure, it may well be that provision should be made for the availability of inexpensive, simple, expeditious procedures for impartial resolution in the small number of cases in which, because of unusual fact situations, the competing interests of recipient and agency cannot be accommodated by more standardized means.

Additionally the courts cannot be perceptive of or sensitive to the responsibilities and dynamics which mark the peculiar relationship which exists or should exist between agency and recipient. It would not be expected that the methodologies and procedures of pretrial discovery fitting for the management of adversary litigation would serve to reconcile the interests of recipient and agency.

These and similar considerations impel us to the conclusion that the design of broad rules should be left to the State Department of Social Services and the Federal Department of Health, Education and Welfare, with appropriate consideration of the interests of welfare recipients. It may be in some few instances that problems of constitutional magnitude will arise; for the most part, however, it would seem that resolution of the cluster of problems associated with access to welfare case files should be left to careful, thoughtful State or Federal rulemaking or legislation.

Because this case presents none of the hypothetical spectres envisioned by the agency and no occasion to order a more restricted disclosure than did Special Term for the protection of the legitimate interests of the agency, judicial self-restraint requires us to dispose of the present appeal without accepting the invitation to enunciate principles of general applicability.

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

Jasen, J.

(dissenting). In this dispute relating to the right of the petitioners, public assistance recipients, to examine their entire case file, prior to a hearing to determine their eligibility to continue receiving public assistance, I would hold that the petitioners are entitled to examine only "the contents of [the] case file and all documents and records to be used by the agency at the hearing(45 CFR 205.10 [a] [13] [i]; emphasis supplied.) The corresponding State regulation (18 NYCRR 358.9 [d]) correctly restates the Federal disclosure regulation by affording a welfare recipient "copies of all documents to be submitted into evidence at the hearing(Emphasis supplied.)

Before a public assistance recipient’s grant can be affected in any manner by a welfare agency, written notice must be given detailing the reasons for the proposed action. Such notice delineates the issues to be raised at the hearing and only evidence bearing on such issues may be offered to either sustain or defeat the claim of the recipient. Of course, all evidence to be used to prove the agency’s case must be disclosed to the recipient. (Goldberg v Kelly, 397 US 254.) A recipient, by examining the evidence to be used at the hearing in advance, as offered by the agency, can meet the issues presented and offer, if he wishes, evidence to show it is untrue. If the relevant information to be relied upon at the hearing is made available to public assistance recipients, the intent of the Federal and State regulation will be preserved and procedural due process rights of recipients will have been protected. That, in my opinion, is the purpose of the Federal and State disclosure mandates, and not, as the majority hold, that the recipient has unlimited access to the agency file. It is unnecessary and unreasonable to give the Federal regulation such a sweeping interpretation. Such an interpretation will seriously hamper the sound administration of public assistance and hinder the proper handling of some 100,000 individual welfare cases annually where fair hearings are requested.

Accordingly, I would reverse the order of the Appellate Division and dismiss the petition.

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

Order affirmed.

       The propriety of this condition is not called into question on the present appeal taken by the commissioners.


text:
    The People of the State of New York, Respondent, v Alfredo S. Wheaton, Appellant.
    Argued June 9, 1978;
    decided July 13, 1978

      APPEARANCES OF COUNSEL

      John E. Tyo for appellant.

      James R. Harvey, District Attorney (Robert S. Blazak of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of Ontario County Court should be reversed, the judgment of conviction vacated and the case remitted for further proceedings on the informations.

Defendant was charged with disorderly conduct and resisting arrest stemming from an incident which occurred in the City of Canandaigua on the evening of July 19, 1976. Following his arrest at 11:30 p.m. he was held for appearance in court the following morning at 9:00 a.m. At the arraignment the charges were read, and in response to the court’s inquiry defendant stated that he did not want a lawyer. After being advised of his rights defendant pleaded guilty to both charges. Based on a limited subsequent inquiry, the court accepted the pleas and set the case down for sentencing.

Following these proceedings defendant consulted an attorney. The latter, although not retained by defendant, wrote a letter to the court requesting assignment of counsel for defendant and expressing the writer’s belief that, based on the facts as related to him by defendant, defendant was innocent. On July 28, 1976 the court assigned counsel.

On August 4, 1976 assigned counsel made a motion under CPL 220.60 to withdraw the plea of guilty based in part on an affidavit of defendant in which he stated that, prior to appearing in court on the morning of his arraignment, he had had a conversation with a police officer who advised him that, if he pleaded guilty to the charges placed against him, he would be let out on his own recognizance so that he could go back to work — "just like that”. Defendant also protested his innocence of the charges against him. The court adjourned the case until August 13, 1976 for the District Attorney’s office to file an answer.

On the adjourned return day the Assistant District Attorney filed an affidavit in which he stated that, based "on conversations with various police officers” (not identified by name, assignment or otherwise), the statement made by defendant that he had been advised by a police officer that he would be let out on his own recognizance "is not true and that no officer made such a statement to the defendant”. The court reserved decision on the motion to withdraw the plea.

On August 23, 1976 the parties reappeared and the court denied the motion to withdraw the plea, without a hearing and without a written opinion. On September 13, 1976 defendant was sentenced to an unconditional discharge on the disorderly conduct charge and to 30 days in jail and three years’ probation on the charge of resisting arrest.

On appeal Ontario County Court affirmed the convictions, and defendant has served his jail sentence.

In view of the assertion made by defendant, never effectively controverted by the prosecutor, it was error for the court to deny defendant’s motion to withdraw his plea (entered without the benefit of advice of counsel), without a hearing, based only on the District Attorney’s conclusory denial of defendant’s story unaccompanied by any tender of supporting proof. At the present stage, no useful purpose would be served by remitting the case for an evidentiary hearing; nor does the prosecutor suggest what evidence, if any, might be available for introduction at any such hearing.

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

Order reversed, the judgment of conviction vacated, and the case remitted to Canandaigua City Court for further proceedings on the informations in a memorandum.


text:
    Bankers Trust Company, Respondent, v Sam Kline et al., Appellants, et al., Defendants.
    Decided July 13, 1978
   Appeals dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (McAlister v Chin Lee Co., 266 NY 603; Cohen and Karger, Powers of the New York Court of Appeals, § 11, P 43).


text:
    Helen L. Barnes, Respondent, v Alfred W. Barnes, Appellant.
    Submitted July 3, 1978;
    decided July 13, 1978
   Motion for leave to appeal dismissed and, on the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 36, subd [b], p 143).


text:
    Centurian Development Ltd., Respondent-Appellant, v Kenford Company, Inc. (Formerly Lancaster Sales, Inc.), Appellant-Respondent.
    Decided July 13, 1978
   Appeal by Kenford Co., Inc., dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that said appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subds [d], [a], par [iii]). [See 60 AD2d 96.]


text:
    Created Gemstones, Inc., Appellant, v Union Carbide Corporation, Respondent.
    Submitted June 26, 1978;
    decided July 13,1978
   Motion for leave to appeal granted. Motion for a stay denied as unnecessary (CPLR 5519, subd [e]; 5515, subd 1).


text:
    G. B. Kent & Sons, Ltd., Appellant, v Helena Rubinstein, Inc., Respondent.
    Submitted May 22, 1978;
    decided July 13,1978
   Motion for reconsideration of motion for leave to appeal granted and, upon reconsideration, the order of this court dated May 11, 1978 vacated and the motion for leave to appeal granted. [See 44 NY2d 646, 847.]


text:
    In the Matter of Joan A. Bedell, Appellant, v State Division of Human Rights et al., Respondents.
    Submitted June 26, 1978;
    decided July 13, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that it does not lie as of right.


text:
    In the Matter of Thomas O’Garro, Appellant, v New York State Department of Mental Hygiene, Respondent.
    Submitted May 29, 1978;
    decided July 13, 1978
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Andy Ruggiano, Appellant, v Henry O’Brien, as District Attorney of Suffolk County, et al., Respondents. In the Matter of Andy Ruggiano, Appellant, v Joseph Jaspan, as Acting Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted June 26, 1978;
    decided July 13, 1978
   Motion for leave to appeal from the order dismissing the article 78 proceeding denied. Motions for a stay dismissed as academic.


text:
    The People of the State of New York ex rel. Michael J. Dale, on Behalf of Wanda D. and All Others Similarly Situated, Appellants, v Robert K. Davis, as Director of Detention Services, et al., Respondents.
    Submitted July 3, 1978;
    decided July 13, 1978
   Motion for leave to appeal dismissed for mootness, relator having been transferred from the place of detention which is the subject of the proceeding.


text:
    The People of the State of New York ex rel. Joyce Lattrell Pray, Appellant, v Ceylon Allen, as Sheriff of St. Lawrence County, Respondent.
    Submitted July 5, 1978;
    decided July 13, 1978
   Motion for leave to appeal and for a stay of extradition and for continuation of bail denied.


text:
    Stouffer Management Food Service, Inc., Respondent, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Appellants.
    Submitted June 19, 1978;
    decided July 13, 1978
   Motion for leave to appeal dismissed, upon the ground that the nonfinal order sought to be appealed from was entered in an action, not a proceeding, and is therefore not covered by CPLR 5602 (subd [a], par 2) (see, e.g., Ofenloch v Gaynor, 28 NY2d 806).


text:
    Wrecking Corporation of America, Appellant, v Memorial Hospital for Cancer and Allied Diseases, Respondent, et al., Defendant.
    Decided July 13, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695; cf. Ratka v St. Francis Hosp., 45 NY2d 604).


text:
    In the Matter of Seymour Sheldon et al., Respondents, v S. Seymour Sperber et al., Appellants, et al., Respondents.
    Argued August 30,1978;
    decided September 1, 1978
    APPEARANCES OF COUNSEL

      Milton E. Jacobowitz for appellants.

      Sidney Baumgarten and Maurice Chayt for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division.

The unsworn statement of a subscribing witness to a designating petition is a formal act requiring compliance with prescribed statutory procedure. Section 6-132 of the Election Law mandates that, preceding his or her signature, a subscribing witness state his or her name, party enrollment, residence, election district, ward or assembly district, city or town, county, the number of signatures witnessed and the date. The addition of this information subsequent to the signature of the subscribing witness by another in the witness’ absence is a nullity, rendering the witnessed signatures invalid. (E.g., Matter of Anderson v Power, 1 AD2d 603, affd 1 NY2d 868.)

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Edna Richardson et al., Respondents, v Theresa Luizzo et al., Appellants.
    Argued August 30, 1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      Mario J. Marino for appellants.

      John Anthony Bonina for respondents.
   OPINION OF THE COURT

Order, insofar as appealed from by respondents aggrieved by the modification at the Appellate Division, affirmed, without costs, on the memorandum at the Appellate Division. Appeal by respondents as to whom the Appellate Division affirmed dismissed, without costs (CPLR 5601, subd [a], par [hi]).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.