text:
    The People of the State of New York, Respondent, v James Fuller, Appellant.
    Submitted June 6, 1980;
    decided July 8, 1980

      POINTS OF COUNSEL

      E. Stewart Jones, Jr., and Robert M. Cohen for appellant.
    I. The evidence was insufficient to warrant a conviction on the first count. (People v Ledwon, 153 NY 10; People v Oyola, 6 NY2d 259; People v Porcaro, 6 NY2d 248; People v Nisoff, 36 NY2d 560; People v Shaw, 158 App Div 146; People v Brehm, 218 App Div 266; People v Croes, 285 NY 279; People v Tench, 167 NY 520; People v Augustine, 35 AD2d 527; People v Dow, 34 AD2d 224, 28 NY2d 860.) II. Ethel Fuller’s prior statements were improperly admitted to impeach her credibility. (People v Fitzpatrick, 40 NY2d 44; Jenkins v 313-321 W. 37th St. Corp., 284 NY 397; People v Colon, 64 AD2d 553; People v Welch, 16 AD2d 554; People v Jordan, 59 AD2d 746; People v Kitchen, 55 AD2d 575; People v Loschiavo, 40 AD2d 755; People v Dachille, 14 AD2d 554; People v Berzal, 32 Misc 2d 809.) III. The trial court’s errors deprived defendant of a fair trial. (People v Parks, 41 NY2d 36; People v Mendes, 3 NY2d 120; People v Matos, 46 AD2d 903; People v De Jesus, 42 NY2d 519; People v Robinson, 53 AD2d 898; People v Richards, 48 AD2d 792; People v Greenfield Constr. Co., 48 AD2d 765; People v Sostre, 37 AD2d 574; People v Viscio, 241 App Div 499; People v Moulton, 43 NY2d 944.)

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
    I. The evidence was legally sufficient to support the jury’s verdict of guilty on the first count of the indictment. (People v Oyola, 6 NY2d 259; People v Porcaro, 6 NY2d 248; People v Feldt, 26 AD2d 743, 22 NY2d 839; People v Medina, 44 NY2d 199; People v Watson, 57 AD2d 143.) II. The trial court properly admitted prior statements under oath or signed by witness Ethel Fuller for impeachment purposes. (People v Vidal, 26 NY2d 249; People v Berzal, 32 Misc 2d 809; People v Fitzpatrick, 40 NY2d 44; People v Freeman, 9 NY2d 600; People v Goetz, 12 NY2d 689.) III. The trial court acted properly in permitting Ethel Fuller to testify as a witness. (People v Parks, 41 NY2d 36; People v Washor, 196 NY 104; Matter of Douglas v Adel, 269 NY 144; Matter of

      Katz v Murtagh, 28 NY2d 234; People v Hayes, 70 Hun 111, 140 NY 484; Fall Brook Coal Co. v Hewson, 158 NY 150; People v Patno, 55 AD2d 965; People v Mandel, 61 AD2d 563; People v Conyers, 86 Misc 2d 754; People v Yanik, 43 NY2d 97.)
   OPINION OF THE COURT

Fuchsberg, J.

We hold that, in the absence of any statutory requirement for corroboration, consonant with the reflection of social attitudes in prevailing legislative policy, the sworn testimony of a child complainant under the age of 12 need not be corroborated in a prosecution for her forcible rape. We also conclude that, in the circumstances of this case, defendant’s guilt was proved beyond a reasonable doubt.

Defendant James Fuller was convicted upon a jury verdict of two counts of first degree rape growing out of a single criminal episode. The indictment was brought on two theories, that he "engage[d] in sexual intercourse with a female by forcible compulsion” (Penal Law, § 130.35, subd 1), and that the act was committed upon "a female who [was] less than eleven years old” (Penal Law, § 130.35, subd 3).

The facts, as they emerged at trial, were as follows:

The 38-year-old defendant lived in a common-law relationship with the mother of four children, one of whom, 10-year-old Dawn, was the complainant. At trial, after the court had conducted a voir dire to satisfy itself that she understood the nature of an oath (CPL 60.20 subd 2), Dawn was sworn and testified to the event which precipitated the defendant’s arrest. According to the child, on the night of November 3, 1976, after she had gone to bed, the defendant came into her room, removed her pants and "put his private in * * * my private” while forcefully pressing her shoulders down on the bed. The complainant testified further that, while this was going on, she tried to maneuver her body away from the defendant and then started crying. It was at that juncture, Dawn went on, that defendant’s mother, Ethel Fuller, who was babysitting in the same building, entered the room only to be ordered "to get the hell out” by the defendant.

Shortly thereafter, a third person, to whom the mother related what she had observed, called the police. Upon their arrival, the arresting officer later told the jury defendant after receiving Miranda warnings, admitted that "he was in bed in the bedroom with the little girl”. Also introduced at trial was evidence that a doctor, who shortly after the incident examined young Dawn, found a redness at the entrance to the vagina consistent with though not necessarily produced by a fresh act of intercourse. He was unequivocal, however, in his testimony that her hymen was gone, a condition the time of whose creation remained somewhat clouded by Dawn’s statement to the doctor, and eventually to the trial court and jurors, that she had engaged in intercourse with the defendant on at least two prior occasions.

Taking the stand in his own defense, the defendant denied that he had ever engaged in sexual intercourse with Dawn and denied making the inculpatory statement to the police. On both direct and rebuttal, Mrs. Fuller was called by the People under circumstances which we hereinafter recite.

On appeal, the Appellate Division modified the judgment by reversing and dismissing on the nonforcible count because the complainant’s testimony lacked the corroboration necessary to sustain a conviction of that offense (Penal Law, § 130.16); it otherwise affirmed (66 AD2d 27). On the present appeal to this court, leave for which was granted by a Justice of the Appellate Division, defendant contends that he is entitled to reversal of the remaining count because the conviction depended entirely on the uncorroborated testimony of the 10-year-old complainant and because the proof fell far short of that required by the beyond a reasonable doubt standard. He also assigns as reversible error, inter alia, the District Attorney’s use for impeachment purposes of Ethel Fuller’s prior inconsistent statements. For the reasons that follow, the determination of the Appellate Division should be upheld.

We begin by noting that when the offense of rape in the first degree is committed by an act of forcible compulsion (Penal Law, § 130.35, subd 1), as opposed to an otherwise unforced act of intercourse with one who, because of age, is rendered incapable of consent (id., subd 3), the Legislature has not seen fit to impose any requirement that the victim’s testimony be corroborated (cf. People v Bianchi, 55 AD2d 993). So much is obvious, as defendant concedes, from the limitation of section 130.16 to instances in which "lack of consent * * * results solely from incapacity to consent because of the alleged victim’s age” (emphasis mine). However, relying on People v Porcaro (6 NY2d 248) and People v Oyola (6 NY2d 259), defendant argues that a 10-year-old complainant’s understanding of an oath is necessarily so doubtful that a similar requirement of corroboration must be imposed.

But Oyóla and Porcaro are not to be read so broadly. Both cases were decided by sharply divided courts and in neither was a requirement of corroboration decisive.

Oyóla involved a conviction for impairing the morals of a minor and for assault committed on a 10-year-old girl. True, the three Judges who joined in the plurality opinion for reversal, after noting that existing legislation imposed a corroboration requirement both for rape cases involving adult females and for all cases involving the unsworn testimony of a child under 12, were critical of the statutory scheme to a point where it could be inferred that they favored either legislative or judicial adoption of a similar rule for cases like the one before them (People v Oyola, supra, at pp 262-264).

But they did not venture to do so. Instead, after an extensive analysis of the quality of the prosecution’s evidence, citing People v Ledwon (153 NY 10), they chose to ground their decision on the fact "that appellant has not been proved guilty of the offenses charged beyond a reasonable doubt” (People v Oyola, supra, at p 265). The three dissenting Judges, after expressly recognizing that no corroboration was necessary, premised their own position for affirmance on the ground that the evidence was sufficient to convict (id., at pp 265-269). The seventh Judge, in his concurrence, would have invalidated the conviction because the child victim’s testimony was uncorroborated (People v Porcaro, 6 NY2d 248, 252, supra). Thus, it can be said that while four Judges might be viewed as sympathetic to a corroboration rule, only one of the seven on the court was ready to adopt it.

In Porcaro, like Oyóla, the defendant had been convicted of impairing the morals of a minor and the evidence consisted entirely of sworn testimony by a 10-year-old child. Again three Judges voted to reverse, this time (at p 252) "[f]or the reasons stated in People v. Oyola,” in an opinion focusing on the weakness of the proof and additionally, on the fact that, though the child had been examined by a physician, the findings were never disclosed in court, and, despite repeated requests, the defendant was not allowed to have the child examined (People v Porcaro, supra, p 251). They simply concluded that the evidence was not "clear and convincing” (id., at p 252). The three Oyóla dissenters reiterated their Porcaro views (id., at pp 253-258). The seventh Judge’s rationale was also the same in both cases.

Without gainsaying that the opinions in these cases have generated some confusion, we must reject defendant’s interpretation that they impose a requirement of corroboration. For, as our analysis suggests, both Porcaro and Oyóla are best understood as cases in which the evidence was not sufficient to prove the defendant guilty beyond a reasonable doubt (People v Oyola, supra, p 261; People v Porcaro, supra, at p 252). And, subsequent decisions have limited them as "thin proof’ cases (People v Nisoff, 36 NY2d 560, 567; People v Aiss, 29 NY2d 403, 407; see People v Cipollina, 21 AD2d 981; Younger, Requirement of Corroboration in Prosecutions for Sex Offenses in New York, 40 Fordham L Rev 263, 274). Aside from the testimony of the child complainant in both cases — and there were background circumstances that strongly suggested a motive to falsify — there was nothing else. Thus, what defendant construes as the missing "corroborative” evidence in these cases, was nothing peculiar to either sex offenses or child witnesses, but, in fact, no more than the additional quantum of proof necessary in any criminal prosecution to sustain a conviction. As Porcaro and Oyóla therefore illustrate, there may be instances in which an infant’s sworn testimony will be undermined to such a degree, either by an apparent motive to fabricate or by its own inherent improbability or inconsistency, that it cannot, standing by itself, amount to proof beyond a reasonable doubt.

Moreover, whatever intimations those decisions may contain in the direction of a judicially imposed corroboration rule must be considered in light of the statutory requirements of corroboration which then existed. Though at common law the uncorroborated testimony of the female victim in any sex offense case was sufficient to support a conviction (7 Wigmore, Evidence [Chadbourn rev ed], § 2061, p 451), corroboration requirements came to be introduced by statute to protect against the perceived danger of false accusations, easy to make but difficult to rebut (see People v Friedman, 139 App Div 795; 7 Wigmore, Evidence [Chadbourn rev ed], § 2061, pp 456-457). On this rationale, the former Penal Law required that for several crimes, including rape, every material element of the crime established by the female victim’s testimony had to be corroborated (Penal Law of 1909, § 2013). Seemingly at odds with this, there was no statutory corroboration requirement of any kind for the sworn testimony of a child in prosecutions for sodomy, incest, carnal abuse or impairing the morals of a minor (see Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 130.16, p 456), a situation with which, as we have seen, the Oyóla court seemed to be wrestling (6 NY2d, at p 262).

But, even if it be thought that the Oyóla decision intended to effect a harmonization among these statutes, the intervening décades have witnessed revisions in the statutory corroboration rules that, in turn, manifest a marked change in legislative policy. Responding to more enlightened social attitudes, particularly the movement toward equality for women, and concern about the increasing incidence of sex crimes, the Legislature has abandoned almost all of the corroboration requirements, nurtured as they were largely in an unfair skepticism of the testimony of the women who were the victims of these crimes, and because, in practice, stringent corroboration standards were unrealistic given that such offenses are generally committed beyond the purview of other witnesses (see Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 130.16, pp 456-458; Governor’s Approval Memorandum, L 1974, ch 14, NY Legis Ann, 1974, pp 371-372; cf. CPL 60.42). Significantly, the only one that remains, though, as we have seen, not relevant here, is strictly limited to cases falling within the narrow compass of a lack of consent due purely to “age, mental defect, or mental incapacity”. (Penal Law, § 130.16.)

In all other instances, including prosecutions for the most serious offenses in the Penal Law, the only qualification that remains is the one set out in CPL 60.20 (subd 3). Unchanged in the face of all the revisions, it continues the long-standing rule that the necessity for corroboration of the testimony of a child under the age of 12 rests solely on whether, as determined by the Judge before whom the testimony is to be given, the child understands the nature of an oath. Age alone is no testimonial infirmity (see Wheeler v United States, 159 US 523, 524 [five year old may be competent witness in a murder case]; Rittenhouse v Town of North Hempstead, 11 AD2d 957 [nine and one-half-year-old child not absolutely disqualified from testifying to event he observed at 3 years, 10 months]; 6 Wigmore, Evidence [Chadbourn rev ed], § 1821).

These precepts in mind, in this case Dawn’s detailed testimony established every element of the rape, including defendant’s use of force in pressing her shoulders down against the bed so that her efforts at wriggling away from him were unsuccessful. She also attested to the fact of penetration. And her recitation that the defendant had previously committed other acts of intercourse upon her were admissible to show defendant’s amorous design (People v Thompson, 212 NY 249, 252-254; see People v Bouton, 50 NY2d 130, 140). Notably, there was nothing in this case to caution against reliance upon her testimony. Despite an extensive and competent cross-examination, it was strong and it was unshaken. Therefore, even if it stood alone, against the defendant’s mere denial of the facts Dawn’s testimony would have been enough for a jury to have found proof of guilt beyond a reasonable doubt.

But here there was much more than this. The physician’s testimony, the defendant’s confession to the police and the testimony from the defendant’s own mother as to how she had happened upon her son in the girl’s bedroom that night and what she saw and heard there, these were all telling.

We turn now briefly to consider defendant’s contention that the trial court committed reversible error in allowing the prosecutor to introduce prior inconsistent statements to impeach Ethel Fuller.

The witness was the first to be called on the prosecution’s case but, apparently to the surprise of the District Attorney, after answering a few preliminary questions, she staunchly refused to respond in any meaningful fashion to further inquiries. She did not merely state that she could not recollect the events of that evening. Rather, by an unending litany of responses, which varied only among "I don’t know”, "I couldn’t say” and "I can’t tell you anything”, the witness manifested a conscious intent to frustrate the People’s case. Moreover, when, in response to prosecutor’s attempt to refresh her recollection, the witness would not even look at her prior Grand Jury testimony even in the face of an express direction from the court that she do so, she was held in contempt and withdrawn from the stand.

Nevertheless, in rebuttal to the defendant’s testimony, the People recalled Ms. Fuller, who this time stated, consistent with her sworn and written pretrial statements, that on the night in question she heard noises emanating from Dawn’s bedroom and saw the defendant lying on the bed, Dawn in tears. On cross-examination, though, the witness recanted this version, several times responding that she only observed the defendant alone in his own bedroom that night. It was after this, on redirect, that the prosecutor was permitted to introduce, over defense objection, prior inconsistent statements she had made, namely a brief signed transcript of her initial interview with the police and the relevant portions of her testimony before the Grand Jury and at the preliminary hearing.

Defendant claims that impeachment of the prosecutor’s own witness fell outside the bounds of CPL 60.35 (subd 1), which allows prior written or sworn statements to be introduced for that purpose only "[w]hen, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party” (see People v Fitzpatrick, 40 NY2d 44, 48). Even assuming that the witness’ testimony on cross-examination "tend[ed] to disprove” the People’s position, there was no literal compliance with the statute’s requirement that the damaging statements be given "upon examination by the party who called [her].”

However, we agree with the majority opinion of Mr. Justice Greenblott at the Appellate Division that, considered in the context in which it occurred, the use of the impeaching matter must be said to have been harmless (see People v Dackowski, 50 NY2d 962; cf. People v Jordan, 59 AD2d 746, 747; Lipinski v New York, 557 F2d 289, cert den 434 US 1074). The substance of the prior inconsistent statements was nothing more than what Ms. Fuller’s direct testimony contained (cf. People v Berzups, 49 NY2d 417, 425-426). And, of course, insofar as her answers on cross-examination had conveyed to the jury her discrepant versions of the same event, the witness’ credibility had already been impeached. Moreover, the jury was thereafter instructed that it could not consider the prior inconsistent statements as evidence in chief but only on Ms. Fuller’s credibility (CPL 60.35, subd 2). Finally, the quality and completeness of the complainant’s testimony, the medical proof of redness in the area of her vagina, her missing hymen, her prior sexual experiences with the defendant, and the defendant’s own inculpatory statement, added up to overwhelming evidence of defendant’s guilt (People v Crimmins, 36 NY2d 230, 242).

In concluding, we also note that, having considered the other points raised by the defendant, we find them lacking in merit.

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

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

Order affirmed.

      . CPL 60.20 (subd 2) provides in pertinent part: "A child less than twelve years old may not testify under oath unless the court is satisfied that he understands the nature of an oath. If the court is not so satisfied, such child or such witness over twelve' years old who cannot, as a result of mental disease or defect, understand the nature of an oath, may nevertheless be permitted to give unsworn evidence if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify the reception thereof’. Subdivision 3 goes on to say that "[a] defendant may not be convicted of an offense solely upon unsworn evidence given pursuant to subdivision two”.

      . The statute in its entirety, reads as follows:
      "A person shall not be convicted of consensual sodomy, or an attempt to commit the same, or of any offense defined in this article of which lack of consent is an element but results solely from incapacity to consent because of the alleged victim’s age, mental defect, or mental incapacity, or an attempt to commit the same, solely on the testimony of the alleged victim, unsupported by other evidence tending to:
      "(a) Establish that an attempt was made to engage the alleged victim in sexual intercourse, deviate sexual intercourse, or sexual contact, as the case may be, at the time of the alleged occurrence; and
      "(b) Connect the defendant with the commission of the offense or attempted offense.”

      . The Oyóla court pointed out that the child’s version of the incident had been rehearsed under her mother’s direction at least five times before the story was told to anyone else. In addition, the mother’s lawyer had instructed the child "to remember that she would have to repeat the same testimony in a matrimonial action against her father” (People v Oyola, 6 NY2d 259, 261, supra). Similarly, in Porcaro, a matrimonial dispute lurking in the background made the court manifestly skeptical of the child’s story (People v Porcaro, supra, at p 251; see People v Nisoff, 36 NY2d 560, 567, supra).

      . Perhaps taking heed of this intimation in Oyóla, when the Legislature revised the Penal Law in 1967, it extended the requirement of corroboration of the elements of penetration and identity to a broad range of sex offenses defined in article 130 (Penal Law, § 130.15), eventually including endangering the welfare of a child. Largely because of the resulting difficulties in securing convictions for sex crimes (see Ludwig, Case for Repeal of the Sex Corroboration Requirement in New York, 36 Brooklyn L Rev 378, 386), the corroboration rules were amended in 1972 to require merely some evidence tending to establish attempt to engage in the proscribed sexual conduct and lack of consent where this was an element of the crime (Pitler, "Existentialism” and Corroboration of Sex Crimes in New York, 24 Syracuse L Rev 1). Continuing to move in that direction, in 1974, section 130.15 was repealed and replaced with section 130.16, which eliminates any need for corroboration except in a few limited instances (see n 2, supra).

      . Of course, it may be argued that Ms. Fuller’s role as a witness at the trial is not to be segmented and that both of her trips to the stand should be treated as a whole in determining whether the statutory standards have been met. So considered, her persistent refusal to answer questions propounded by the District Attorney in fact may have foreordained the nature of her responses on cross-examination. And it may raise the interesting issue of whether the patently evasive and contumacious responses on direct were so clearly intended to affirmatively damage the People’s case as to equate it with conventional testimonial conduct (see People v Fitzpatrick, 40 NY2d 44, 52 [mere failure to recall not affirmative damage]; but cf. People v Schenkman, 46 NY2d 232; People v Pomerantz, 46 NY2d 240). But, because of the ground on which we dispose of the CPL 60.35 issue, we have no need to pass on the merits of such an argument here.


source: Caselaw Access Project

author:
      Per Curiam.
     Gabrielli, J. Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Martin Shepard, Appellant.
    Argued February 7, 1980;
    decided June 6, 1980

      POINTS OF COUNSEL

      Gerald B. Lefcourt, Richard Ware Levitt, Michael Kennedy and Sheryl E. Reich for appellant.
    I. The New York State and United States Constitutions recognize zones of privacy and autonomy which protect certain activities, including the possession of marihuana in the privacy of the home, from State interference absent a compelling State interest. (Brown v Board of Educ., 347 US 483; Abie State Bank v Bryan, 282 US 765; Chastleton Corp. v Sinclair, 264 US 543; Harper v Virginia Bd. of Elections, 383 US 663; Turner v United States, 396 US 398; Muller v Oregon, 208 US 412; Leary v United States, 395 US 6; Griswold v Connecticut, 381 US 479; Stanley v Georgia, 394 US 557; Roe v Wade, 410 US 113.) II. The proscription of the private possession and cultivation of marihuana in the home is not reasonably related in fact to the goal of discouraging marihuana use and thus violates the due process clause of our State and Federal Constitutions. (Montgomery v Daniels, 38 NY2d 41; Buck v Bell, 274 US 200; Jacobson v Massachusetts, 197 US 11; Baltimore & Ohio R. R. v Interstate Commerce Comm., 221 US 612.) II. The proscription of private personal possession or cultivation of marihuana in the home denies equal protection of the laws. (Gulf Col. & Santa Fe Ry. v Ellis, 165 US 150; Baxtrom v Herold, 383 US 107; Glona v American Guar. Co., 391 US 73; Levy v Louisi

      ana, 391 US 68; Rinaldi v Yeager, 384 US 305; Carrington v Rash, 380 US 89; Mayflower Farms v Ten Eyck, 297 US 266; United States v Carolene Prods. Co., 304 US 144; Hartford Co. v Harrison, 301 US 459; Louisville Gas Co. v Coleman, 277 US 32.)

      Patrick Henry, District Attorney (Ronald E. Lipetz of counsel), for respondent.
    I. Section 220.03 of the Penal Law does not violate defendant’s right to privacy. (Meyer v Nebraska, 262 US 390; Griswold v Connecticut, 381 US 479; Stanley v Georgia, 394 US 557; Louisiana Affiliate of Nat. Organization for Reform of Marijuana Laws [Norml] v Guste, 380 F Supp 404; Loving v Virginia, 388 US 1; Skinner v Oklahoma, 316 US 535; Eisenstadt v Baird, 405 US 438; Prince v Massachusetts, 321 US 158; Pierce v Society of Sisters, 268 US 510.) II. The State of New York may properly prohibit the private possession of marihuana. (United States v La Froscia, 354 F Supp 1338, 485 F2d 457; People v Fillhart, 93 Misc 2d 911; People v Friedman, 302 NY 75; People v Hoffman, 76 Misc 2d 564; Williams v Mayor, 289 US 36; People v Pagnotta, 25 NY2d 333; Matter of Cullum v O’Mara, 43 AD2d 140.) III. Section 220.03 of the Penal Law is not violative of the equal protection clause. (People v Fillhart, 93 Misc 2d 911.)

      Jay L. Himes for New York Civil Liberties Union and others, amici curiae.

    I. Freedom from government invasion into the home is a fundamental constitutional right. (Meyer v Nebraska, 262 US 390; Doe v Bolton, 410 US 179; Poe v Ullman, 367 US 497; Griswold v Connecticut, 381 US 479; United States v United States Dist. Ct., 407 US 297; Silverman v United States, 365 US 505; People v Payton, 45 NY2d 300; Boyd v United States, 116 US 616; Johnson v United States, 333 US 10; United States v Ehrlichman, 546 F2d 910, 429 US 1120.) II. The State has not demonstrated a sufficient basis for interfering with private conduct in the home. (Skinner v Oklahoma, 316 US 535; Bates v Little Rock, 361 US 516.) III. Even under a means/end analysis the State has failed to discharge its burden. (Orr v Orr, 440 US 268; Cleveland Bd. of Educ. v La Fleur, 414 US 632; San Antonio School Dist. v Rodriquez, 411 US 1; Reed v Reed, 404 US 71; Montgomery v Daniels, 38 NY2d 41; Trio Distr. Corp. v City of Albany, 2 NY2d 690; Matter of Tyson, Inc. v Tyler, 24 NY2d 671; People v Bunis, 9 NY2d 1; Deffance Milk Prods. Co. v Du

      Mond, 309 NY 537; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326.)
   OPINION OF THE COURT

Per Curiam.

The defendant, Martin Shepard, was originally charged in the Justice Court of the Town of Southampton with the crime of criminal possession of a controlled substance in the sixth degree (Penal Law, § 220.06, subd 3), a class D felony. It was alleged that he had in his possession at his home in Sagaponack, New York, nine marihuana plants. The charge was subsequently reduced to criminal possession of a controlled substance in the seventh degree (Penal Law, § 220.03) a class A misdemeanor.

The defendant moved to dismiss the charge on the ground that section 220.03 of the Penal Law, as applied to him, violated his right to privacy. He contended that marihuana is a harmless substance and, therefore, the State of New York had no legitimate interest in prohibiting its private use or possession.

After conceding possession of the marihuana plants the defendant requested and was granted an evidentiary hearing at which he offered and had admitted into evidence books and reports which purported to support his position that the use of marihuana did not pose a danger to the public health, safety or welfare. In addition, and appended to defendant’s motion for dismissal, were affidavits of responsible medical authorities stating that there was no significant harm nor health danger to the user of marihuana, no psychological or physiological impairment, no causal connection between marihuana and the commission of violent acts, that an overdose death was impossible, that use of marihuana was less harmful than many other drugs and commonly used substances and that there was no justification for criminal treatment of the marihuana user. These medical and psychological assessments of the effects of marihuana usage were affirmed in the testimony of Dr. Norman E. Zinberg, clinical professor of psychiatry at Harvard Medical School.

The District Attorney responded by submitting a series of medical and scientific reports which purported to show that marihuana does, in fact, produce harmful effects upon the human body including damage to brain cells resulting in cerebral atrophy, genetic and developmental damage, and impairment of lung function. The District Attorney also argued that since marihuana constitutes a serious health hazard to the public, its use and possession may be prohibited by the State.

In a memorandum decision, the trial court denied defendant’s motion to dismiss and held that defendant had failed to overcome the presumption of constitutionality that attaches to all legislative enactments. Based on the stipulated facts, the court found defendant guilty of criminal possession of a controlled substance in the seventh degree and sentenced him to pay a fine of $100. The Appellate Term affirmed.

On this appeal the defendant does not question those laws which prohibit the trafficking, distribution or sale of marihuana or the power of the State to control possession in quantity sufficient to indicate an intent to distribute. Instead his prime contention is that the State cannot constitutionally criminalize the possession and cultivation of personal use quantities of marihuana within the privacy of the home.

Fundamental to this argument is the defendant’s premise that we should not accept the bases underlying section 220.03 of the Penal Law. Rather, the defendant urges, we should determine upon this record whether the intrusion sanctioned by the Legislature is justified, under applicable standards of constitutional law considering the activity sought to be prohibited. He urges that the State should not be permitted to stop a person from using and possessing marihuana in the sanctity and constitutionally protected privacy of the home.

It is true, as the defendant contends, that the court has an historic role in defining the constitutional rights of individuals and the limitations which must be placed on government powers. So the government has been prevented from interfering with an individual’s decision about whom to marry (Loving v Virginia, 388 US 1), or matters concerned with how an individual should educate his children (Pierce v Society of Sisters, 268 US 510), or matters concerning procreation (Skinner v Oklahoma, 316 US 535), or contraception (Eisenstadt v Baird, 405 US 438), or family relationships (Prince v Massachusetts, 321 US 158). Similarly the "liberty” clause of the Fourteenth Amendment has been used to strike down State legislation which invaded the "zone of privacy” surrounding the marriage relationship (Griswold v Connecticut, 381 US 479).

More recently the Supreme Court confronted a challenge to the constitutionality of a Georgia statute when applied to private possession of obscenity in the home (Stanley v Georgia, 394 US 557). There the court held that although obscenity itself is not within the area embraced by the First Amendment, nevertheless its possession in the privacy of a person’s own home adds an additional dimension to the reach of constitutional protection. In striking down the Georgia statute the court expressed particular concern for the need to protect an individual "from unwanted governmental intrusion into one’s privacy” (id., at p 564).

But even with its recognition of the particular deference to be accorded the privacy of the home the Stanley court was careful to add a footnote stating that its decision "in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms or stolen goods, a crime” (id., at p 568, n 11).

While conceding the State’s right to make possession of narcotics a crime, even to the extent of intruding into the home for purposes of enforcement, the defendant contends that there can be no sufficient State interest in maintaining section 220.03 of the Penal Law as it pertains to the private possession of marihuana which is not a narcotic drug. He asserts that in light of the evidence as to the harmless effects of marihuana, the State has no interest in proscribing its private possession.

It is true that there is disagreement regarding the effects of marihuana. Indeed, there may be some members of this court who believe, based on available scientific evidence and on the need to assess priorities and conserve the resources and integrity of the criminal justice system, that the private possession of marihuana should be decriminalized for personal use. The Legislature may well, in the near future, consider its use for medicinal reasons. However, the statute now before us represents the current and considered judgment of an elected Legislature acting on behalf of the people of this State. Empirical data concerning the vices and virtues of marihuana for general use is far from conclusive. Time and further study may prove the Legislature wrong, but the Legislature has the right to be wrong. The enactment of legislation, particularly in areas of legitimate controversy, is the business of the Legislature.

It is the business of the court to apply the law, and while we have the power, we clearly lack the right to substitute our own sense of what is a dangerous substance for the considered judgment of the Legislature. Nothing would be more inappropriate than for us to prematurely remove marihuana from the Legislature’s consideration by classifying its personal possession as a constitutionally protected right. The sphere within which we may properly declare, a legislative act unconstitutional is extremely limited and clearly does not encompass this case. "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness” (Selected Writings, Cardozo, Nature of the Judicial Process, at p 164).

The order of the Appellate Term should be affirmed.

Gabrielli, J.

(concurring). I am in full agreement with the Per Curiam opinion and I join in affirming the order of the Appellate Division.

I cannot, however, stand idly by without commenting upon the dissenter’s attempt to justify the permissive use of a prohibited intoxicant when the Legislature, following extensive studies and hearings, has specifically found the drug to be sufficiently harmful to warrant punishing its possession in an effort to deter its use. Cases are not to be decided upon one’s personal views or preferences concerning a legislative decision; and, perforce, a Judge’s personal desires and private opinions may never be permitted to form the basis of a judicial determination. We do a great disservice to the judicial responsibilities with which we have been entrusted when we step away from the role of impartial arbiters of conflicting views and enter the fray of political debate. The Court of Appeals is a court of law, and, as such, our review must be, as always, based upon the record before us in any given case.

The record in this case is reflective of the long-standing division within the scientific community regarding the effects of marihuana use upon the individual. There have been and, no doubt, always will be those who claim that marihuana may be used without serious side effects. There is, however, an abundance of reputable scientific authority to the contrary which simply cannot be ignored (see, e.g., Jones and Jones, Sensual Drugs: Deprivation and Rehabilitation of the Mind). In one survey of the recent scientific data on the subject, a survey which was introduced into the record by the People, it was noted that profound changes in the surface membranes of the brain cells occur in animals when they are exposed to doses of marihuana within the range of normal human use (Jones, On the Problems Executives Must Anticipate with the Growth of Marijuana Smoking, Executive Health, vol XIV, No. 1, Oct., 1977). Similarly, a study published in the Journal of the American Medical Association in June of 1975 drew a direct correlation between the appearance of organic brain disease and the use of cannabis. Also alarming are the mounting statistics on the relationship between marihuana and genetic abnormalities in the offspring of some users of the drug.

My colleague who authored the dissenting opinion asserts flatly that the weight of "world-wide authority” has concluded that marihuana is not addictive, has no withdrawal symptoms and, most significantly, "does not cause hazard to the public safety”. Yet, there is an enormous amount of hard evidence to indicate that the heavy use of marihuana leads to a tolerance of the substance and that symptoms such as weight loss, vomiting, hot flashes and severe irritability can ensue if the drug is withdrawn (Jones, supra; see Marijuana and Health, Fourth Report to the United States Congress from the Secretary of Health, Education and Welfare [1974] 10, 75-81 [hereinafter referred to as Fourth Report]). As to the contention that marihuana use poses no danger to the public safety, one need only examine the evidence of the effect that consumption of the drug has upon the driving abilities of its users to recognize the fallacy of the dissenter’s assertion. This evidence indicates that, with the ingestion of marihuana, the driver’s reaction time is increased and his ability to concentrate on the road is concomitantly diminished (Fourth Report, supra, pp 10-11; see Ravin v State, 537 P2d 494, 510-511, and n 67 [Alaska]). Thus, one who retreats into the privacy of his home to take a few so-called "harmless” puffs from a marihuana cigarette may very well convert his private vice into a matter of public concern when he leaves the confines of his home and takes his vehicle out onto the public highway. And, realistically, we cannot blind ourselves to what history and common experience teach us — that it is not unusual for a user of the drug to encourage and induce others to experiment with the substance.

The point of the foregoing discussion is not necessarily to document beyond question that marihuana is a harmful substance, the possession of which must be prohibited lest dire consequences to society ensue. Rather, it is simply to illustrate that the scientific community cannot provide us with any unequivocal assurance that marihuana is, as the dissenter seems to suggest, as innocuous as "apple pie”.

In the face of the prodigious amount of conflicting data on the effects of marihuana, I am hard pressed to comprehend how it can be said that a legislative decision to outlaw possession of the substance is without basis in reason, particularly where, as here, that decision is reached following exhaustive hearings and studies. Certainly our collective background as Judges does not give us the scientific knowledge and skills to choose among the various studies and determine which of them are authoritative. And, even if we had the requisite technical insight, we would be overstepping the bounds of judicial prerogative were we to intervene in what is essentially a legislative matter by determining that the statutory prohibitions on the possession of marihuana do not advance the public good. "It is not the function of á court to determine whether the public policy that finds expression in legislation * * * is well or ill conceived. * * * The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful * * *. Within the field, where men of reason may reasonably differ, the legislature must have its way” (Williams v Mayor, 289 US 36, 42 [Cardozo, J.]).

The advocates of unfettered marihuana use have not been able to convince the Legislature that the substance is without deleterious effect. Certainly, it cannot be seriously argued that the Legislature is without the power under the Constitution to forbid the possession and use of an intoxicant which it deems to be harmful on the basis of the scientific data before it solely because its decision may effect an individual’s desire to do as he pleases.

There may be those who believe that the Legislature should not assume a protective posture toward the State’s citizens and that the individual liberties protected by the Constitution include the right to self-destruction. I cannot share such a belief, however, for I am of the view that the most valuable natural resource we have as a society is our people. When an individual ingests a harmful substance and perhaps causes damage to his own brain cells, his productive capacity, talents and energies are lessened, and society as a whole is thereby diminished. I cannot accept the dangerous doctrine that suggests that our elected legislators have not the power to take steps to prevent such a result.

For all of these reasons, I wholeheartedly join in the position adopted by the majority and cast my vote, without reservation, to affirm the conviction.

Fuchsberg, J.

(dissenting). This appeal from a conviction for possession in one’s own home and for one’s own use of plants containing less than one ounce of marihuana puts the right to privacy to the test in a contemporary factual setting. Also at stake are rights instinct in the basic precepts of due process and equal protection.

The events which here call for the invocation of these fundamental principles are not controverted. On March 31, 1977, while the defendant, Dr. Martin Shepard, was away on vacation, the police made their way into his home in the Town of Southampton on Long Island, where they seized a number of potted marihuana plants, which it is conceded contained an aggregate weight of less than nine tenths of one ounce of marihuana. It is likewise agreed that the plants were cultivated for the doctor’s personal use alone. Prosecuted on the reduced charge of having violated former section 220.03 of the Penal Law, under which possession of marihuana was a misdemeanor, Dr. Shepard elected to waive objection to the legality of the search and seizure and instead forthrightly moved head-on to dismiss the information on the substantive ground that, as applied to himself as a competent adult, the statute runs counter to our Federal and State Constitutions. After a hearing before a Southampton Town Court Justice on the nature and extent of the physical and psychiatric effects of marihuana, the motion to dismiss was denied and, on the factual stipulations heretofore recited, the defendant was found guilty and fined $100. This appeal is from an order of the Appellate Term affirming the judgment of conviction.

Defendant agrees that the State, in the exercise of its police power, has a rightful and salutary concern for its people’s safety, health and welfare. But he maintains that our Federal and State Constitutions, and indeed the very philosophy on which our system of government rests, puts a check on these powers when they are used to needlessly and arbitrarily restrain individuals from making personal decisions on fundamental private matters that do not directly or materially affect others. For the reasons that follow, I am persuaded that there indeed has been an impermissible imposition on the privacy of the defendant, that the statute as applied here is unconstitutional and that, consequently, the conviction must fall.

I start with a few words about the right to privacy, that integral and indivisible ingredient of liberty and personality which has been characterized as "ground enough to deserve the tribute that it is the most comprehensive of rights and the most valued” (Hufstedler, Directions and Misdirections of a Constitutional Right of Privacy, 26 Record of the Association of the Bar of the City of New York 546, 550-551). Though slow and gradual in its articulation, perhaps because it is implicit in the Constitution as a whole rather than explicit in any one of its parts alone, it has come to play an increasingly powerful and pervasive role in the protection of personal autonomy, i.e., the making of "choices affecting an individual’s personal life”, against the ever more powerful forces of growing government (see Gunther, Cases and Materials on Constitutional Law [9th ed, 1975], p 655; Ravin v State, 537 P2d 494, 504 [Alaska] [possession of marihuana]; Roe v Wade, 410 US 113 [right of unmarried woman to terminate her pregnancy]; Eisenstadt v Baird, 405 US 438 [right of unmarried persons to use contraceptives]; Stanley v Georgia, 394 US 557 [right to possess obscene materials in one’s home]; Griswold v Connecticut, 381 US 479 [right of married persons to use contraceptives]).

Allied with the over-all concept of privacy, and reinforcing it in the present case, is the special place our homes have long enjoyed in the jurisprudential order of things. Only the other week, though in a Fourth Amendment context, the Supreme Court reminded us that "[t]he zealous and frequent repetition of the adage that 'a man’s house is his castle,’ made it abundantly clear that both in England and in the Colonies 'the freedom of one’s house’ was one of the most vital elements of English liberty”. Remarkably, the court also thought it fit to quote from Semayne’s Case (5 Co Rep 91a; 77 Eng Rep 194, 195 [KB, 1603]), which regarded the home not only as its owner’s refuge " 'against injury and violence’ ” but also " 'for his repose’ ” (Payton v New York, 445 US 573, 596, n 44). In thus emphasizing that one’s residence is a bastion of privacy, the court was doing no more than reiterating what it has said in varied contexts, as, for instance, in Stanley v Georgia (supra, at pp 564-565), where, after recognizing that under Roth v United States (354 US 476, 485) "obscenity is not within the area of constitutionally protected speech or press”, the court made the point that the right of access to ideas and information takes on an added dimension when exercised in one’s dwelling place and that "Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home.” (See, also, Paris Adult Theatre I v Slaton, 413 US 49; United States v Orito, 413 US 139, 142-143; United States v Reidel, 402 US 351; Powell v Texas, 392 US 514, 532 [intoxication in the home vis-á-vis intoxication in public].)

Put more broadly, "even the states, which possess a general police power not granted the Congress, cannot in the name of morality infringe the rights to privacy and freedom of association in the home” (Moreno v United States Dept. of Agric., 345 F Supp 310, 314, affd sub nom. United States Dept. of Agric, v Moreno, 413 US 528). It seems obvious then that the sweep of the rights so delineated necessarily rules out power to discard them for no better reason than the exercise of the police power in circumstances that serve no more than a rational purpose.

Surely, much stronger justification — be it a test fashioned in terms of compelling interest, if not of utter necessity, or, at least, one close and substantial — would be required to impinge on "the development and expression of one’s intellect, interests, tastes and personality” (Doe v Bolton, 410 US 179, 211 [Douglas, J., concurring]; see, also, Matter of Schulman v New York City Health & Hosps. Corp., 38 NY2d 234, 250 [my dissent]). Limiting legislation • must therefore be narrowly drawn, even if thereby rendered somewhat less efficient (NAACP v Alabama, 377 US 288, 307; Shelton v Tucker, 364 US 479, 488; see, also, Reed v Reed, 404 US 71). And, were the Federal Constitution less demanding, I believe our State Constitution should be read to fill the gap (see Matter of Malpica-Orsini, 36 NY2d 568, 591 [my dissent]; Cooper v Morin, 49 NY2d 69, 78-82; Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159-161; Oregon v Hass, 420 US 714; Cooper v California, 386 US 58; Lego v Twomey, 404 US 477; Barker v Wingo, 407 US 514). So judged, in balancing the rights infringed, on the one hand, against the State’s interest in the proscription effected by the statute, on the other, it appears to me that this test has not been met, to say which, our courts may not "[shirk] the duty or [fear] the peril” (Cardozo, The Nature of the Judicial Process [Yale U Press, 1921, p 135]).

I start my own analysis by assuming that the State has a legitmate interest in deterring the possession and sale of marihuana in order to avoid whatever harm that substance may be thought to be capable of inflicting on the public, a hypothesis which the defendant does not question for the purpose of his appeal. Even so, it cannot be doubted that the enforcement of the statute in the conceded circumstances of this case would not advance the goal of deterrence to any meaningful extent. These circumstances — that defendant is a competent adult, rather than an impressionable child; that the plants were confined to his home and so were not available as an example or encouragement to others; that the quantity of forbidden fruit they contained was too little to provide proof of an intent to distribute or commercialize its product; and that the implicated substance was not in the nature of narcotics, firearms, stolen goods or other objects the private possession and use of which even in the home might present some danger to the public — all certify that, when measured by the degree of judicial scrutiny which the statute must withstand, its enforcement in this case lacks the real and substantial relation to the achievement of its aim necessary for it to satisfy the demands of due process.

Moreover, since the activity the State seeks to curtail by criminal sanction must be one detrimentally affecting public health, safety, welfare or morals, the sociological and scientific knowledge of the effects of marihuana and attempts to control its use is relevant and appropriate for analysis. For instance, as the record indicates, all empirical studies undertaken in States which have decriminalized its possession in recent years have concluded that laws such as the one before us now have almost no deterrent effect. Three States — Maine, California and Oregon — have conducted such surveys. The reports of each make two points: first, usage is not significantly affected by the prohibition laws, and second, usage can be deterred more effectively through education (Evaluation of the Decriminalization of Marijuana in Maine — 1978; A First Report of the Impact of California’s New Marijuana Law; State of Oregon, Survey of Marijuana Use and Attitudes).

These studies, summarized in Marijuana: A Study of State Policies and Penalties (National Governor’s Conference, Center for Policy Research and Analysis [1977]), revealed that usage patterns overall are unaltered (and in some instances decreased) by decriminalization. Their findings are also consistent with the recent Seventh Annual Report to the United States Congress submitted by the National Institute on Drug Abuse in 1979. Similar conclusions were arrived at in recent years by the New Jersey Drug Study Commission when, examining the other side of the coin, it advised its Legislature that "criminalizing marijuana use in New Jersey has failed to act as an effective deterrent and has engendered various social adversity” (Governor’s Report, Oct., 1974, at p 252). Moreover, in urging the passage of the so-called Marihuana Reform Act of 1977 (L 1977, ch 360), which has now decriminalized private possession of small quantities of marihuana (n 1, supra), our own State Assembly Committee on Codes, curiously in the face of the majority and concurring opinions, acknowledged that "the scientific evidence clearly shows no significant harm —or no harm at all — from marijuana use” (Committee on Codes, Memorandum in Support of Assembly Bill 10-D [undated]). To say the least, these hardly demonstrate either a danger to public health or morals or an efficacy of the statutory design sufficient to permit this exercise of the State’s paternalistic power to overwhelm the privacy interest of an adult, particularly one who is neither physically nor mentally incapable of managing his personal affairs (see, generally, Rawls, A Theory of Justice, 248-250; Dworkin, Paternalism, Morality and the Law 107 [Wasserstrom ed]).

This is not to say that opinion on the effect of marihuana is undivided. Marihuana has been in common, even therapeutic, use and, correspondingly, the subject of intense study over many decades and, to a lesser extent, for centuries. Not unexpectedly, then, it has its detractors — and I do not question their competency or their sincerity — but so do other ingestants such as tobacco and alcohol and aspirin and fatty foods and sugar and salt (comparison with which is, in part, the basis for defendant’s equal protection argument). The extant literature, however, proves that, after prolonged and passionate public debate, the almost universal weight of worldwide authority, sparked by nearly all the hard evidence, agrees that the moderate use of marihuana is less harmful for example, than alcohol or tobacco; that there is no causal connection between the smoking of marihuana and the commission of criminal or violent acts; that an overdose death is impossible; that it is not addictive; that there are no withdrawal symptoms; that it causes no brain, lung or psychiatric damage; that the theory that its use predisposes one to the use of hard drugs is a myth; and that its consumption does not cause a hazard to public safety. All of which is not a peal of praise for marihuana; it merely notes the overwhelming weight of scientific knowledge.

A small sampling of the literature from which these conclusions are drawn are the Mayor’s committee’s report entitled The Marijuana Problem in the City of New York (Siller, Marijuana Smoking in Panama, The Military Surgeon, 274, 278; Psychiatric Aspects of Marihuana Intoxication, 99 American Journal of Psychiatry, 249-251; Goodman and Gilman, Pharmacological Basis of Therapeutics, 300; Grinspoon, Marihuana Reconsidered; British Advisory Committee on Drug Dependence, Cannabis [1968]; Marihuana: A Signal of Misunderstanding, published by National Comm on Marihuana and Drug Abuse [Shatter Report]; Report of Canadian Comm of Inquiry on the Non-Medical Use of Drugs [Le Dain Report]; India Hemp Drugs Comm, Marihuana [Jefferson Pub Co ed, 1969]).

Withal, the concurrer’s rhetoric to the contary notwithstanding, I do not overlook the doubts introduced by those, though far fewer in number, whose position is at odds with the ones I have already recorded and whose arguments could readily be quoted in opposition. Nor do I disregard the experience of life about us, for what we know as men need not be forgotten as Judges. Included, of course, are the social disarray and, maybe worse, the disrespect for law that have come in the train of what many regard as unfair and unwarranted prosecutions which accomplish little more than to harass and stigmatize their targets (Kaplan, Marijuana, New Prohibition, supra).*

In the end, the issue here most certainly is not, as the majority and concurring opinions would have it appear, whether the State may regulate the distribution and use of marihuana generally. Rather, it is whether, when, after all this time, the best the State can claim is that the facts are, and perhaps always will be, less than conclusive, it nevertheless may invade the sanctuary that is Dr. Shepard’s home and dictate his right to there possess and use marihuana, tobacco or, for that matter, cholestrol-making apple pie. Should the fact that the substance he would consume is marihuana make the difference, particularly when the possible damage is so heavily outweighed by the individual’s right to pursue his private aspirations in peace? I think not. Not in a country where, though the government has its sphere, so does each American, and where, to keep that of the individual entire, the Constitution and the courts will guard it from unreasonable and arbitrary restrictions by even the government, including, of course, the Legislature, itself.

Under these standards the State has failed to demonstrate a police power interest great enough to override Dr. Shepard’s right of privacy. Former section 220.03 of the Penal Law should therefore be declared unconstitutional as applied, the order of the Appellate Term reversed, the fine remitted and the information dismissed. By such a decision we would vindicate no less than what Justice Brandéis called "the most comprehensive of rights and the right most valued by civilized men” — "the right to be left alone” (Olmstead v United States, 277 US 438, 478).

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

Order affirmed.

       Of course, there are greater constraints upon legislative decision-making when it impinges upon the sphere of individual privacy in a way that implicates a fundamental freedom (see, e.g., Eisenstadt v Baird, 405 US 438; Griswold v Connecticut, 381 US 479; cf. Stanley v Georgia, 394 US 557). No such fundamental freedom is involved, however, in the legislative decision to prohibit the possession and use of marihuana.

      . Present section 220.03 of the Penal Law speaks only in terms of "controlled substance”, defined in subdivision 5 of section 220.00 to exclude marihuana. This reflects the adoption of the Marihuana Reform Act of 1977 (L 1977, ch 360) which "decriminalized” possession of marihuana (see Penal Law, § 221.05).

      . Defendant claims that, in some measure at least, the First, Third, Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments of the United States Constitution and their counterparts at the State level are implicated.

      . Stanley v Georgia (394 US 557, 568, n 11, supra) lists these exceptions to items which may be possessed with impunity in the privacy of the home. Marihuana, whose active ingredient is known as tetrahydrocannabinol, is not a narcotic (see Soler, Of Cannabis and the Courts: A Critical Examination of Statutory Marijuana Prohibitions, 6 Conn L Rev 601, 696-697).

      . Illustratively, Dr. Lester Greenspoon, Director of Psychiatry (Research) of the Massachusetts Mental Health Center and a professor of psychiatry at the Harvard Medical School, in an affidavit received at the trial of this case, pointed out not only the well-known fact that marihuana is used by a wide cross section of Americans "including college students, professional and business leaders”, but that a recent survey indicated that 70% of Harvard medical students and a significant percentage of its faculty used it without any deleterious effect on their ability to function normally and productively in our society.

      . It is interesting to note that when this court upheld the so-called "Rockefeller drug laws”, which pertain to hard drugs, we anticipated that cases might arise in which otherwise permissible sanctions would not be constitutional as applied (see People v Broadie, 37 NY2d 100, 119).


author: Gabrielli, J. Jasen, J.

text:
    I.C.C. Metals, Inc., Respondent, v Municipal Warehouse Company, Appellant.
    Argued April 21, 1980;
    decided July 1, 1980

      POINTS OF COUNSEL

      Cecil Holland, Jr., for appellant.
    I. The limitation of liability set forth in defendant’s warehouse receipts must be given effect. (Procter & Gamble Distr. Co. v Lawrence Amer. Field Warehousing Corp., 16 NY2d 344; Claflin v Meyer, 75 NY 260; Vereinigte Aluminium-Werke AG. v Atlantic Tidewater Terms., 137 Misc 160; Castorina v Rosen, 290 NY 445; Magnin v Dinsmore, 70 NY 410; Salt Springs Nat. Bank v Wheeler, 48 NY 492; Reichman v Compagnie Generate Transatlantique, 290 NY 344; Central School Dist. No. 3 of Towns of Amherst, Cheektowaga & Clarence v Insurance Co. of North Amer., 55 AD2d 1021; Meise v Wachtel, 54 Misc 549; Lambros Seaplane Base v Batory, 117 F Supp 16.) II. Defendant offered evidence from which a theft of the indium was reasonably inferable; accordingly, summary judgment should have been denied.
      (Vereinigte Aluminium-Werke AG. v Atlantic Tidewater Terms., 137 Misc 160; Leather’s Best v S. S. Mormaclynx, 313 F Supp 1373.)

      Thomas Field for respondent.
    I. Section 11 of the warehouse receipt purporting to limit Warehouse’s liability to $50 per receipt is ineffective in this case, and Warehouse is liable for the actual value of the goods. (Procter & Gamble Distr. Co. v Lawrence Amer. Field Warehousing Corp., 16 NY2d 344; Claflin v Meyer, 75 NY 260; Kaplan Prods. & Textiles v Chelsea Fireproof Stor. Warehouse, 9 Misc 2d 273; Platt v Hibbard, 7 Cow 497; Bank of Oswego v Doyle, 91 NY 32; Salt Springs Nat. Bank v Wheeler, 48 NY 492; Central School Dist. No. 3 of Towns of Amherst, Cheektowaga & Clarence v Insurance Co. of North Amer., 55 AD2d 1021, 43 NY2d 878; Meise v Wachtel, 54 Misc 549; Lambros Seaplane Base v Batory, 117 F Supp 16; Citizens Nat. Bank v Osetek, 353 F Supp 958.) II. The lower courts correctly held that as a matter of law, Warehouse failed to account for what happened to the goods. Thus, summary judgment on liability was proper whether based on conversion or negligence. (Claflin v Meyer, 75 NY 260; Procter & Gamble Distr. Co. v Lawrence Amer. Field Warehousing Corp., 16 NY2d 344; Vereinigte Aluminium-Werke AG. v Atlantic Tidewater Terms., 137 Misc 160.)
   OPINION OF THE COURT

Gabrielli, J.

At issue on this appeal is whether a warehouse which provides no adequate explanation for its failure to return stored property upon a proper demand is entitled to the benefit of a contractual limitation upon its liability. For the reasons discussed below, we conclude that proof of delivery of the stored property to the warehouse and its failure to return that property upon proper demand suffices to establish a prima facie case of conversion and thereby renders inapplicable the liability-limiting provision, unless the warehouse comes forward with evidence sufficient to prove that its failure to return the property is not the result of its conversion of that property to its own use. If the warehouse does proffer such evidence and is able to persuade the trier of facts of the truth of its explanation, then the limitation of liability will be given effect and the bailor will be required to prove the warehouse to be at fault if it is to recover even those limited damages allowed by the provision.

The facts relevant to this appeal are undisputed and may be simply stated. In the autumn of 1974, plaintiff, an international metals trader, delivered three separate lots of an industrial metal called indium to defendant commercial warehouse for safekeeping. The parties have stipulated that the three lots of indium, which had an aggregate weight of some 845 pounds, were worth $100,000. When the metal was delivered to defendant, it supplied plaintiff with warehouse receipts for each lot. Printed on the back of each receipt were the terms and conditions of the bailment, as proposed by defendant. Section 11 of those terms and conditions provided as follows: "Limitation of Liability — Sec 11. The Liability of the warehouseman as to all articles and items listed on the face of this warehouse receipt is limited to the actual value of each article and item, but the total liability of the warehouseman shall not exceed in any event for damage to any or all the items or articles listed on this warehouse receipt the sum of fifty ($50.00) dollars; provided, however, that such liability may, on written request of the bailor at the time of signing this warehouse receipt or within twenty (20) days after receipt of this warehouse receipt, be increased on part or all of the articles and items hereunder, in which event, increased rates shall be charged based upon such increased valuation, but the warehousemen’s maximum liability shall in no event exceed the actual value of any or all of the articles and items in question. In no case shall the liability be extended to include any loss of profit”. Plaintiff did not request any increase in defendant’s contractual liability, nor did it inform defendant of the value of the metal.

For almost two years, defendant billed plaintiff for storage of each of the three lots by means of monthly invoices that specifically identified the stored metal, and plaintiff duly paid each invoice. Finally, in May of 1976, plaintiff requested the return of one of the three lots of indium. At that point defendant for the first time informed plaintiff that it was unable to locate any of the indium. Plaintiff then commenced this action in conversion, seeking to recover the full value of the indium. In response, defendant contended that the metal had been stolen through no fault of defendant’s and that, at any rate, section 11 of the terms printed on each warehouse receipt limited plaintiffs potential recovery to a maximum of $50 per lot of indium.

Special Term granted summary judgment to plaintiff for the full value of the indium. The court found that plaintiff had made out a prima facie case of conversion by proffering undisputed proof that the indium had been delivered to defendant and that defendant had failed to return it upon a proper demand. As to defendant’s contention that the metal had been stolen, the court concluded that this allegation was completely speculative and that defendant had failed to raise any question of fact sufficient to warrant a trial on the issue. Finally, Special Term held that the contractual limitation upon defendant’s liability was inapplicable to an action in conversion. The Appellate Division affirmed the judgment in favor of plaintiff and we granted defendant leave to appeal to this court. We now affirm the order appealed from.

Absent an agreement to the contrary, a warehouse is not an insurer of goods and may not be held liable for any injury to or loss of stored property not due to some fault upon its part (Uniform Commercial Code, § 7-204, subd [1]). As a bailee, however, a warehouse is required both to exercise reasonable care so as to prevent loss of or damage to the property (Buffalo Grain Co. v Sowerby, 195 NY 355) and, a fortiori, to refrain from itself converting materials left in its care (see Prosser, Torts [4th ed], § 15). If a warehouse does not convert the goods to its own use and does exercise reasonable care, it may not be held liable for any loss of or damage to the property unless it specifically agrees to accept a higher burden. If, however, the property is lost or damaged as a result of negligence upon the part of the warehouse, it will be liable in negligence. Similarly, should a warehouse actually convert stored property to its own use, it will be liable in conversion. Hence, a warehouse which fails to redeliver goods to the person entitled to their return upon a proper demand, may be liable for either negligence or conversion, depending upon the circumstances (see, generally, White & Summers, Uniform Commercial Code [2d ed], § 20-3).

A warehouse unable to return bailed property either because it has lost the property as a result of its negligence or because it has converted the property will be liable for the full value of the goods at the time of the loss or conversion (Procter & Gamble Distr. Co. v Lawrence Amer. Field Warehousing Corp., 16 NY2d 344; 1 Harper and James, Torts, § 2.36), unless the parties have agreed to limit the warehouse’s potential liability. It has long been the law in this State that a warehouse, like a common carrier, may limit its liability for loss of or damage to stored goods even if the injury or loss is the result of the warehouse’s negligence, so long as it provides the bailor with an opportunity to increase that potential liability by payment of a higher storage fee (compare Klar v H. & M. Parcel Room, 270 App Div 538, 541, affd without opn 296 NY 1044, with Rapp v Washington Stor. Warehouse & Van Co., 75 Misc 16; see Uniform Commercial Code, § 7-204, NY Anns; see, also, Magnin v Dinsmore, 56 NY 168; Reichman v Compagnie Generale Transatlantique, 290 NY 344). If the warehouse converts the goods, however, strong policy considerations bar enforcement of any such limitation upon its liability (see Magnin v Dinsmore, 70 NY 410, 416; Reichman v Compagnie Generale Transatlantique, supra, p 352). This rule, which has now been codified in subdivision (2) of section 7-204 of the Uniform Commercial Code, is premised on the distinction between an intentional and an unintentional tort. Although public policy will in many situations countenance voluntary prior limitations upon that liability which the law would otherwise impose upon one who acts carelessly (compare Ciofalo v Vic Tanney Gyms, 10 NY2d 294, with Gross v Sweet, 49 NY2d 102; but see General Obligations Law, §§ 5-321, 5-322, 5-323, 5-325, 5-326), such prior limitations may not properly be applied so as to diminish one’s liability for injuries resulting from an affirmative and intentional act of misconduct (see, generally, Restatement, Torts 2d, § 500; Restatement, Contracts 2d, Tent Draft No. 12, § 337), such as a conversion. Any other rule would encourage wrongdoing by allowing the converter to retain the difference between the value of the converted property and the limited amount of liability provided in the agreement of storage. That result would be absurd. To avoid such an anomaly, the law provides that when a warehouse converts bailed property, it thereby ceases to function as a warehouse and thus loses its entitlement to the protections afforded by the agreement of storage (see Magnin v Dinsmore, 70 NY 410, 417-418, supra). In short, although the merely careless bailee remains a bailee and is entitled to whatever limitations of liability the bailor has agreed to, the converter forsakes his status as bailee completely and accordingly forfeits the protections of such limitations. Hence, in the instant case, whether defendant is entitled to the benefit of the liability-limiting provision of the warehouse receipt turns upon whether plaintiff has proven conversion or merely negligence.

Plaintiff has proffered uncontroverted proof of delivery of the indium to defendant, of a proper demand for its return, and of defendant’s failure to honor that demand. Defendant has failed to make a sufficient showing in support of its suggested explanation of the loss to defeat plaintiff’s motion for summary judgment. Its unsupported claim that the metal was stolen does not suffice to raise any issue of fact on this point. Upon this record, it is beyond cavil that plaintiff would be entitled to judgment had it elected to sue defendant in negligence (see Golden v Romer, 20 Hun 438; Dalton v Hamilton Hotel Operating Co., 242 NY 481, 488-489; Stewart v Stone, 127 NY 500, 506; PJI 4:93, at p 1090; 1 Harper and James, Torts, § 2.27, at p 172; McCormick, Evidence [2d ed], § 343, at pp 808-809). We now hold that such a record also suffices to sustain plaintiffs action in conversion, thereby rendering inapplicable the contractual limitation upon defendant’s liability.

The rule requiring a warehouse to come forward with an explanation for its failure to return bailed goods or be cast in damages in negligence is based upon practical necessity. As is noted above, a warehouse may only be held liable for loss of or damage to bailed goods if the loss or damage is due to the negligence of the warehouse or if the warehouse has converted the property. Hence, in order to recover damages for lost or damaged goods, a bailor must prove either that the warehouse was negligent or that it converted the goods. Since bailed property is in the possession of and under the sole control of the warehouse at the time of injury or loss, however, it is the warehouse which is in the best, if not the only, position to explain the loss of or damage to the property. Indeed, such information normally will be exclusively in the possession of the warehouse and will not be readily accessible to the bailor. Because of this, the law properly refuses to allow a warehouse, which has undertaken for a fee to securely store goods belonging to another, to avoid liability by simply pleading ignorance of the fate of the stored merchandise. To allow the warehouse to so easily escape its responsibilities would be to place the bailor in an untenable position and would serve to encourage both dishonesty and carelessness. Clearly, the temptation to convert stored property would be significantly increased could the warehouse then avoid all civil liability by simply denying all knowledge of the circumstances of the loss and placing upon the bailor the well nigh impossible burden of determining and proving what happened to his property while it was hidden from sight in the depths of the defendant’s warehouse. Similarly, such a rule would reward those warehouses with the least efficient inventory control procedures, since they would be most able to honestly plead ignorance of the fate of goods entrusted to their care.

To prevent such absurd results, the law has long placed upon the warehouse the burden of advancing an adequate explanation of the reasons for its failure to properly return stored property (see PJI 4:93, at p 1090; Richardson, Evidence [10th ed], § 109). This does not mean that the warehouse is required to prove that it acted properly, nor does this doctrine shift the burden of proof to the warehouse. Rather, the warehouse must come forward and explain the circumstances of the loss of or damage to the bailed goods upon pain of being held liable for negligence. If the warehouse does provide an explanation for the loss or damage, the plaintiff then must prove that the warehouse was at fault if he is to recover (see Textile Overseas Corp. v Riveredge Warehouse Corp., 275 App Div 236). A few illustrations of this principle may be of some assistance. Where the warehouse simply refuses to return bailed property upon a legitimate demand and does not advance any explanation for that refusal, the plaintiff will be entitled to recover without more. Similarly, where the warehouse does suggest an explanation for the loss but is unable to proffer sufficient evidentiary support for that explanation to create a question of fact, as in this case, the plaintiff will be entitled to recover without more. Where, however, the warehouse proffers sufficient evidence supporting its explanation to create a question of fact, the jury must be instructed that if it believes that explanation, the plaintiff must be denied any recovery unless he has proven that the warehouse was at fault (Uniform Commercial Code, § 7-403, subd [1], par [b]). In other words, if the jury is persuaded that the goods were accidentally mislaid or destroyed in a fire or accident or stolen by a third party, the plaintiff cannot recover unless he has proven that the loss or the fire or the accident or the theft were the proximate result of either a purposive act or a negligent commission or omission by the warehouse.

Although it has long been settled that this is the rule in an action in negligence, there has been considerable inconsistency and uncertainty as to the application of this principle to an action in conversion. Thus, although we have on occasion declared that a bailor establishes a prima facie case of conversion by simply proving delivery to the bailee and an unexplained failure to return the stored goods upon demand (Procter & Gamble Distr. Co. v Lawrence Amer. Field Warehousing Corp., 16 NY2d 344, supra; see Claflin v Meyer, 75 NY 260, 263; Bank of Oswego v Doyle, 91 NY 32, 41; accord 1 Harper and James, Torts, § 2.27), we have at other times indicated that something more is needed to maintain an action in conversion and that a plaintiff will be required to provide positive evidence of an intentional act by the warehouse inconsistent with the plaintiff’s interest in the property (Reichman v Compagnie Generale Transatlantique, 290 NY 344, 352, supra; see, also, Wamsley v Atlas S. S. Co., 168 NY 533; Central School Dist. No. 3 of Towns of Amherst, Cheektowaga & Clarence v Insurance Co. of North Amer., 43 NY2d 878). We deem it unnecessary to engage in an extended discussion of each of the precedents in this area, for they appear essentially irreconcilable. Rather, we have decided to take this opportunity to re-examine the matter and to determine the most appropriate resolution of this controversy.

We now conclude that there exists no sound reason to apply a different rule to the two types of action where, as here, the bailee comes forward with insufficient proof of its explanation for the loss of the bailed goods. The same policy considerations which prevent a warehouse from avoiding liability in negligence by a declaration of ignorance appear equally applicable to an action in conversion. Indeed, as a practical matter, a bailor will be even less able to prove conversion by a warehouse than he would negligence, since a warehouseman who actually converts stored property will generally strive mightily to prevent knowledge of his malfeasance from coming to light. The possibility of fraud is obvious, for a dishonest warehouseman might well be encouraged to convert bailed property if he could then obtain the benefit of a contractual limitation of liability by the simple expedient of professing ignorance as to the fate of the goods. The rule requiring a warehouse to explain the loss of or damage to the goods lest it be held liable would be severely undermined could a warehouse avoid the bulk of potential liability in such a case by means of a contractual provision.

We note, moreover, that the requirement that a warehouse provide an explanation for loss of property entrusted to it is certainly not overly harsh, nor does it impose a heavy burden upon the warehouse. The warehouse must only offer proof of what actually happened to the goods and need not show that it was free from fault, for once the warehouse makes the initial required showing, the burden of proving the warehouse to be at fault will fall squarely upon the plaintiff. No greater duty of care is created by this rule, nor does it establish any sort of strict liability. Certainly a warehouse may reasonably be required to keep track of goods entrusted to it and to supply an accurate explanation of any loss to the bailor.

Finally, where a warehouse does not explain the cause of the loss, it would appear as reasonable to assume that this profession of ignorance is due to the fact that the warehouse has converted the goods as to presume that it is due to the fact that the warehouse has been negligent. Indeed, one who commits an intentional wrong is more likely to attempt to cover his tracks than one who has been at most negligent, especially in light of the disparity in potential liability created by the insertion of a limitation of liability clause. For all these reasons, we conclude that plaintiff was entitled to summary judgment in its action in conversion. Quite simply, plaintiff proved delivery of the indium to defendant warehouse and defendant’s subsequent failure to return the metal, whereas defendant has not come forward with adequate evidentiary proof in admissible form to support its suggested explanation of that failure. That being so, the limitation on liability was inapplicable, and plaintiff was entitled to recover the actual value of the missing indium.

Accordingly, the order appealed from should be affirmed, with costs.

Jasen, J.

(dissenting). My disagreement with the majority stems from their conclusion that plaintiff is entitled to summary judgment on the theory of conversion absent any proof whatsoever that defendant converted the indium metal to its own use or the use of another. The plaintiff bailor having failed to demonstrate in an evidentiary manner an intentional act by the defendant bailee which worked to deprive the plaintiff of its property, the defendant should not be held liable for the conversion of the stored property.

Certainly, I would not dispute many of the legal premises as aptly articulated by the majority, to wit: that a warehouseman is not an insurer of goods absent an agreement to the contrary and, thus, may not be held liable unless it fails to exercise reasonable care or converts entrusted goods to its own use (Uniform Commercial Code, § 7-204, subd [1]); that a warehouseman unable to return the bailed merchandise due to acts of negligence or conversion is liable for the full value of the goods on the date of the loss or conversion unless the parties have clearly agreed to a limitation upon the warehouseman’s potential liability; and that a contractual limitation on potential damages is enforceable only when a bailee is found negligent, and not when the warehouseman is determined to have converted the goods. (Uniform Commercial Code, § 7-204, subd [2].) I am also in agreement with the majority that plaintiff would be entitled to judgment had it elected to sue in negligence (in which case the contractual limitation on damages would retain its vitality), but plaintiff has not done so, expressly limiting its cause of action to one of conversion. I cannot subscribe, however, to the majority’s conclusion that conversion, rather than negligence, can be presumed where the bailee is unable, for whatever reason, to explain the absence of stored property. Such a holding, in my" opinion, erases the critical distinction between negligence and conversion.

Conversion is viewed as requiring "an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” (Restatement, Torts 2d, § 222 A; see, generally, Prosser, Torts [4th ed], § 15.) Thus, one who does not intentionally exercise dominion or control over property is not liable for conversion, even though his act or omission may be said to constitute negligence. As was stated in Magnin v Dinsmore (70 NY 410, 417): "A conversion implies a wrongful act, a misdelivery, a wrongful disposition, or withholding of the property. A mere nondelivery will not constitute a conversion, nor will a refusal to deliver, on demand, if the goods have been lost through negligence, or have been stolen.” (See, also, Restatement, Torts 2d, § 224, Comment b.)

While proof of delivery to a bailee, of a demand for the property’s return, and of a failure of the bailee to return the goods establishes a prima facie case of negligence, these items of proof do not, in my opinion, constitute a prima facie case of conversion. The majority, obviously recognizing this fact, resorts to a newly created presumption of conversion in order to sustain the judgment rendered plaintiff below. Such legal reasoning is unwarranted.

First, I would consider the law in this commercial area well settled and in accordance with the basic principle that a cause of action sounding in conversion will not be maintainable absent proof of intentional wrongdoing by the bailee. (See, e.g., Central School Dist. No. 3 of Towns of Amherst, Cheektowaga & Clarence v Insurance Co. of North Amer., 43 NY2d 878, affg 55 AD2d 1021; Reichman v Compagnie Generale Transatlantique, 290 NY 344, 352; Wamsley v Atlas S. S. Co., 168 NY 533, 536-538; Magnin v Dinsmore, 70 NY 410, 417-419, supra; see, generally, 5 NY Jur, Bailment, § 45.) Here, plaintiff has presented no proof whatsoever of an intentional wrongdoing by defendant, and the majority’s conclusion that this "record * * * suffices to sustain plaintiff’s action in conversion” flies in the face of this established rule that an action for conversion requires an evidentiary showing that defendant bailee intentionally acted in a manner so as to deprive plaintiff of its property.

Second, I take issue with the policy reasons cited by the majority to support their obliteration of the distinction between negligence and conversion — that the bailee is in the better position to explain what happened to the goods and, thus, should be required to come forth with such explanation; and that instances of fraud would proliferate if a bailee could merely profess ignorance as to the goods’ disappearance and, then, claim as a sanctuary the contractual limitation of liability. While I would agree that a bailee should keep track of goods entrusted to it and that a bailee is in a better position than the bailor to explain what happened to the goods, it does not follow that its failure to produce the stored goods upon demand should serve as the vehicle to thrust upon the bailee the burden traditionally placed upon a plaintiff bailor when suing in conversion to demonstrate an intentional act by the defendant bailee which worked to deprive that plaintiff of its property. As a matter of public policy, I believe the burden of proving a wrongful act such as conversion should remain upon the party claiming it, rather than the one accused of the wrongdoing.

There is simply no rational reason, under the guise of policy considerations, to shift the burden of coming forward with evidence of what "actually happened” to the goods when a cause of action is framed in conversion. If the bailor is seeking to circumvent the contractual limitation on damages, agreed upon by the parties as a condition of the bailment, the bailor should be put to the task of demonstrating that the bailee converted the goods to its own use or the use of another. To hold otherwise is to permit the bailor to have its cake and eat it too. This is so because the bailor, as in this case, need not declare the full value of the goods and, as a result, is required to pay only a de minimus bailment fee, rather than a fee based on actual value; yet, upon loss of the goods, it may seek compensation for their full value even though it was never disclosed to the bailee.

This, it seems to me, is fundamentally unfair, especially when one considers that plaintiff voluntarily signed as a condition of bailment a contractual limitation of liability ($50) as to each article and item stored, although the true value of the three lots of indium was $100,000. The limitation of liability and the actual value of the stored property were known to plaintiff, and yet it chose not to avail itself of the opportunity to declare the full value of the goods to insure that it would be made whole in case of loss. Plaintiff had only to be candid about the true value of the goods entrusted to defendant and pay a storage rate commensurate with the risk in order to protect itself from any and all loss, whether such loss be precipitated by fraud, conversion, negligence, or otherwise. Having not exercised this option and, thus, having paid a much lower storage fee than what would have been charged had the bailee known the true value of the goods and been responsible for the same, the bailor should be held to the terms of the bailment absent an affirmative evidentiary showing of intentional wrongdoing by the bailee. In this commercial setting, dealing as we are with sophisticated businessmen, we should not reach out and relieve the plaintiff of its failure to protect itself contractually. I can only read the majority’s opinion as doing violence to the law, without rhyme or reason.

For the above-stated reasons, I would reverse the order of the Appellate Division and grant summary judgment to defendant.

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

Order affirmed.

      . In light of our disposition of the main issue presented by this case we need not and accordingly do not determine whether this limitation applies to loss of bailed property as well as damage to that property.

      . We find no merit to defendant’s suggestion that the term "conversion to his own use” as used in subdivision (2) of section 7-204 means something more than a simple conversion (see Lipman v Petersen, 223 Kan 483).

      . The explanation proffered by the warehouse in such a case must be supported by sufficient evidence and cannot be merely the product of speculation and conjecture. "The explanation must show with reasonable certainty how the loss occurred, as, by theft or fire * * * It is not enough to show that defendant-bailee used reasonable care in its system of custody if mysterious disappearance is the only 'explanation’ given” (PJI 4:93, at pp 1090-1091; see Dalton v Hamilton Hotel Operating Co., 242 NY 481, 488-489). In the instant case, defendant offered proof of the following facts in support of its claim that the indium had been stolen: "(1) the storage of the indium in three different locations in two different buildings, and the absence of any indication in [defendant] Municipal’s records that the indium was moved, negate the possibility of misdelivery; (2) the storage of the indium without special precautions, because [plaintiff] ICC failed to advise Municipal of its true value, supports the likelihood of theft; (3) the form of the indium (small bars) would have facilitated removal without detection; (4) a recently discharged employee was experienced in 'weighing and sampling’ and thus presumably was aware of the value of indium; (5) there was a series of alarms, any one of which could have been caused by a theft; (6) Municipal promptly reported the loss to the police; and (7) ICC reported the loss to its insurers as a theft and continued to employ Municipal’s services, thus negating any suspicion that Municipal had misappropriated the indium or had been grossly negligent in its care.” Viewed most favorably to defendant, this evidence would indicate at most that theft by a third party was one possible explanation for the defendant’s failure to redeliver the indium to plaintiff. This is simply insufficient, since the warehouse is required to show not merely what might conceivably have happened to the goods, but rather what actually happened to the goods. Defendant proved only that theft was possible, and presented no proof of an actual theft. Hence, the proffered explanation was inadequate as a matter of law.

      . We emphasize at this point that we do not suggest by our holding in this case that proof of negligence will support a recovery in conversion. Rather, our holding is limited to those situations in which the warehouse fails to provide an adequate explanation for its failure to return stored goods. If the warehouse comes forward with an explanation supported by evidentiary proof in admissible form, the plaintiff will then be required to prove that the loss was due to either negligence or conversion, depending on the circumstances. For plaintiff to recover in conversion after the warehouse has established a prima facie explanation for its failure to deliver, the trier of facts must find all the traditional elements of conversion.

      . Of course, the validity of such a limitation is contingent upon the bailor being accorded the opportunity to increase the level of liability by payment of a higher storage fee. (See Uniform Commercial Code, § 7-204, subd [2].)

      .1 would think it clear that the contractual limitation agreed to by the parties as a condition of the bailment applies both to damaged goods and lost goods. Indeed, to read the limitation as not encompassing lost goods would be patently absurd. What greater damage could a bailor sustain than the bailee’s failure to return the goods.

      . Although this court did affirm a grant of summary judgment to plaintiff on a theory of conversion when the bailee failed to explain satisfactorily the loss of the goods in Procter & Gamble Distr. Co. v Lawrence Amer. Field Warehousing Corp. (16 NY2d 344), it has been conjectured that we "may have held the warehouseman absolutely liable without realizing it.” (White & Summers, Uniform Commercial Code [1972], p 674.)

      . The majority stresses that their holding is limited to only requiring a warehouseman to establish, in the first instance, "a prima facie explanation for its failure to deliver” the goods (p 665, n 4). However, I derive little solace from this qualification, inasmuch as a bailee "is required to show not merely what might conceivably have happened to the goods, but rather what actually happened to the goods” (p 664, n 3 [emphasis added]). Since we are concerned with cases involving unexplained losses, the majority opinion sanctions, for all practical purposes, the imposition of full liability for the value of the goods stored whenever the bailee is unable to deliver the stored goods or explain "what actually happened to the goods.” This, I suggest, is an onerous burden upon the warehouseman.