author: Jones, J.

text:
    In the Matter of Theodore W. Kheel, Appellant, v Richard Ravitch et al., Respondents.
    Argued March 22, 1984;
    decided May 8, 1984

      POINTS OF COUNSEL

      Theodore W. Kheel, appellant pro se.

    I. Respondents failed to sustain their burden of proving that the memorandum is exempt from disclosure. CMatter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Polansky v Regan, 81 AD2d 102; Matter of Miracle Mile Assoc, v Yudelson, 68 AD2d 176, 48 NY2d 706; Church of Scientology of N. Y. v State of New York, 46 NY2d 906.) II. The court below ignored facts demonstrating that the memorandum was postdecisional. III. The burden of proof is upon respondents.

      MaryP. Bass and Lester G. Freundlich for respondents.
    I. A memorandum which consists of the opinion of the writer, prepared to assist the agency in formulating a position, and which is only one of many considerations taken into account by the agency in regard to the issue, is not final agency policy or a final agency determination. It is not accessible under the Freedom of Information Law. (Renegotiation Bd. v Grumman Aircraft, 421 US 168; NLRB v Sears, Roebuck & Co., 421 US 132; Matter of McAulay v Board ofEduc., 61 AD2d 1048, 48 NY2d 659; Matter of Sea Crest Constr. Corp. v Stubing, 82 AD2d 546; Matter of Marshall v State Bd. for Professional Med. Conduct, 73 AD2d 798, 49 NY2d 709; Matter of Sinicropi v County of

      Nassau, 76 AD2d 832, 51 NY2d 704; United States v Nixon, 418 US 683; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter ofPolansky v Regan, 81 AD2d 102; Matter of Miracle Mile Assoc, v Yudelson, 68 AD2d 176, 48 NY2d 706.) II. The in camera inspection of the document by the court below was proper. (Horton u Smith, 51 NY2d 798; Matter of Gonzalez v State Liq. Auth., 30 NY2d 108; Cohen v Hallmark Cards, 45 NY2d 493; Judson v Central Vt. R. R. Co., 158 NY 597; Matter of Judicial Inquiry, 5 872; Matter of Association of Bar, 222 App Div 580; Jones v Maphey, 50 NY2d 971.) III. The record to which access is sought relates to collective bargaining negotiations which would be impaired by disclosure. (Matter of Murray v Troy Urban Renewal Agency, 84 AD2d 612, 56 NY2d 888; Coha-lan v Board ofEduc., 74 AD2d 812; Belmont Cent. School Dist. v Belmont Teachers Assn., 51 AD2d 653.)
   OPINION OF THE COURT

Jones, J.

A memorandum prepared by a public agency for internal use addressing a position it may take in pending or prospective collective bargaining negotiations to which it is a party is not a “final determination” by the agency, access to which may be obtained under the Freedom of Information Law.

Petitioner instituted this proceeding under CPLR article 78 by petition alleging that over a period of more than 30 years he had been jointly designated by various transit authorities and unions in New York City as impartial arbitrator of disputes in the transit industry in that area, the designation having been most recently included in collective bargaining agreements between the unions and the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority — divisions of respondent Metropolitan Transit Authority (MTA) — which expired on March 31,1982. He also alleged that, relative to ongoing negotiations with respect to succeeding agreements, it was reported in the local press on April 5, 1982 that MTA’s president, respondent Ravitch, had publicly stated that MTA did not want petitioner to be redesig-nated as impartial arbitrator because it had found his recent decisions “unfavorable to management and favorable to the union” and that Ravitch had in his possession a “memorandum” which had been prepared by the staff of the City Transit Authority documenting petitioner’s unfavorable rulings. Petitioner further alleged that on April 6, 1982, the day following publication of the news item, he demanded access to the memorandum under the Freedom of Information Law (Public Officers Law, art 6), as well as to a determination he claimed had been made by MTA as a result of the memorandum to oppose his designation in the agreements then being negotiated with the unions, but that his demand had not been complied with. He stated that on April 27, 1982 counsel for MTA had denied him access to the memorandum, asserting that its disclosure would impair collective bargaining negotiations and that it was interagency or intra-agency material not of a kind subject to disclosure under the statute, and had failed to respond to the demand for a copy of MTA’s determination. By way of relief, he sought judicial review of the Authority’s failure to comply with his demand and judgment directing that he be given copies of the memorandum and the determination. In an affidavit accompanying his petition, petitioner stated that he had first learned of the memorandum a few days prior to the news article and, believing that an impartial arbitrator must be acceptable to both sides to be effective, had announced on April 4, 1982 that he would not accept redesignation to the position he had long occupied, thereby putting an end to any collective bargaining negotiations concerning his reappointment.

In their answer respondents MTA and its president Ravitch reaffirmed the position taken by them in response to petitioner’s initial demand under the Freedom of Information Law — i.e., that the memorandum prepared by the City Transit Authority’s staff (on March 18, 1982) was exempt from public access under section 87 (subd 2, par [c]) of the Public Officers Law because its disclosure would impair collective bargaining negotiations and exempt as well under paragraph (g) of the same subdivision as inter-agency or intra-agency material which is not statistical or factual data, instructions to staff, or a final agency policy or determination. As to the request for a copy of MTA’s determination to oppose petitioner’s redesignation as impartial arbitrator, respondents denied that any such determination had been made, submitting in support of their denial affidavits by the vice-chairman of MTA and by the president of the City Transit Authority (by whom the memorandum had been prepared), stating that the selection of the impartial arbitrator was a of negotiation between the unions and the transit authorities, that the board of MTA had delegated its negotiating authority to a three-person negotiating team who made their own decision as to the wisdom of continuing petitioner as grievance arbitrator in the agreements being negotiated, and that the board of MTA had voted on no matters relating to the negotiations and had not had circulated among its members the memorandum prepared by the president of the City Transit Authority. The affidavit submitted by the memorandum’s preparer described it as a representation of “my analysis of petitioner’s recent decisions and my opinion as to the advisability of agreeing to retain him as the grievance arbitrator under a new agreement”, compiled along with 25 other position papers over a period of more than a year in anticipation of negotiations with the unions for internal use by the Authority’s bargaining team. The preparer stated further: “The memorandum which petitioner seeks does not represent final agency policy. It was prepared prior to any position being taken on the issue; it had no operative effect independent of the effect it had on its readers, who were entirely capable of forming their own views on the basis of information available from a myriad of sources, and did so.”

Supreme Court rejected the claims of exemption urged by respondents with respect to the memorandum and directed that it be made available to petitioner. In light of the fact that there had been no determination made by MTA, the court directed that it furnish petitioner with a certification as to whether it had such a determination and that, if it did not, it furnish petitioner with a statement of what records existed regarding the determination of which disclosure was sought.

The Appellate Division, after an in camera examination of the March 18, 1982 memorandum (which had not been included in the record or submitted to Supreme Court), unanimously reversed the judgment of Supreme Court and dismissed the petition, concluding that the memorandum was intra-agency material exempt under section 87 (subd 2, par [g]) of the Public Officers Law and that the “broad discretion” for specification of other records respondents might have but which had not been included in petitioner’s demand for access circumvented the required procedure of the Freedom of Information Law. Petitioner is in our court by virtue of an appeal as of right (CPLR 5601, subd [a], par [ii]), renewing his plea for access to the memorandum.

Because the Appellate Division was correct in its dismissal we affirm the order of that court.

There is no dispute that the memorandum prepared by the president of the City Transit Authority on March 18, 1982 to which petitioner sought access was intra-agency material within section 87 (subd 2, par [g]) of the Public Officers Law and, as such, exempt from disclosure, unless it fell within one of the three categories of such material reachable under that paragraph. As the basis for his claim to access, petitioner relies on the third category — “final agency policy or determinations” — asserting, not that the memorandum itself was a determination by MTA, but that it was a postdecision communication and as such has been swept into the class of documents which have been held to be available under statutory language somewhat similar to that on which he relies (NLRB v Sears, Roebuck & Co., 421 US 132, 151-152). Offering for support nothing more than his own recital that “I was told by union representatives prior to March 18, 1982, the date of the Memorandum, that Ravitch had told them that under no circumstances would or could he agree to my redesignation as Impartial Arbitrator”, he contends that a final agency policy or determination to oppose his redesignation had already been made in advance of the date of preparation of the memorandum that he sought, and that the memorandum was therefore not protected, predecisional material but simply postdetermination documentation created for the purpose of fortifying the decision already reached.

That claim, which is indispensable to petitioner’s request for access under the Freedom of Information Law, is unsupportable, having regard for the ambiance in which the alleged determination is asserted to have been made. The transit unions and authorities were in the process of collective bargaining, still negotiating the terms of successor agreements to those about to expire on March 31,1982 when the memorandum in question was prepared. Given the fluidity of positions of parties engaged in such procedure, striving to arrive at mutually acceptable accommodations with the give and take endemic to the process of collective bargaining, it would be unrealistic to characterize as a “final agency determination” any stance which either party to the process might appear to be adopting prior to a binding agreement’s having been reached by both sides, or, as ultimately occurred in this instance, submission of their differences to binding interest arbitration. Until that moment arrived, the posture of MTA and its subsidiaries with respect to any of the subjects of negotiation, of which the designation of the impartial arbitrator was indisputably one, could only be regarded as unfixed and alterable, as negotiation might demonstrate the wisdom of change. Indeed, experience would belie reliance even on what, for bargaining purposes, might be made to appear to be an immutable position, in light of the often ephemeral quality of immutability as the collective bargaining process advances. In only the exceptional case — which this is not — might a showing justify a conclusion that a final agency determination (which would subject to disclosure under the statute written evidence of such a determination relative to pending bargaining negotiations) had been made with respect to a subject of the negotiations prior to their completion.

In view of our conclusion that the memorandum of March 18,1982 is exempt from access under the statute by reason of its being intra-agency material which is not a final agency policy or determination within section 87 (subd 2, par [g]) of the Public Officers Law, we do not reach the question whether it is also exempt under paragraph (c) as a record the disclosure of which would have an adverse effect on collective bargaining negotiations. In response to petitioner’s argument that if, as we have indicated, agency positions formulated during such negotiations are exempt under paragraph (g), there is no need for the exemption provided by paragraph (c), we would only point out that the latter exemption has a reach beyond merely what might be sought to be excluded as intra-agency materials which are not final agency determinations, as, for example, intra-agency materials which are “statistical or factual tabulations or data” (Public Officers Law, § 87, subd 2, par [g], cl [i]).

Nor do we consider or address petitioner’s contention that under our State statute postdecision materials are indeed obtainable under the category of final agency determinations.

Finally, petitioner argues that the Appellate Division exceeded its authority when, as a predicate for its reversal of Supreme Court’s order directing access, it examined the memorandum in question despite the fact that the document had not been before the lower court. Although the parties strenuously dispute whether error was committed in this respect, we are not required to resolve their difference. Our decision of this appeal is not dependent on the content of the memorandum, which we ourselves have not examined, but rests entirely on the fact of the engagement of the transit unions and collective bargaining activities to which the memorandum was concededly relevant.

For the reasons stated, the order of the Appellate Division should be affirmed, with costs.

      . Paragraph (c) authorizes an agency to deny access to records which “if disclosed would impair present or imminent contract awards or collective bargaining negotiations”.

      “i. statistical or factual tabulations or data;
      “ii. instructions to staff that affect the public; or
      “iii. final agency policy or determinations”.

      . Petitioner raises no challenge to the Appellate Division’s reversal of that portion of Supreme Court’s order directing MTA to furnish him with a certification as to other records which might exist.

      . Petitioner’s voluntary withdrawal of his name on April 4, 1982 rendered it unnecessary ever to reach a final determination as to MTA’s position with respect to his redesignation as impartial arbitrator.


source: Caselaw Access Project

license: Public Domain

text:
    County of Rockland, Respondent, v Civil Service Employees Association, Inc., Appellant, et al., Defendants.
    Argued March 20, 1984;
    decided May 8, 1984

      POINTS OF COUNSEL

      James D. Featherstonhaugh for appellant.
    I. A parent labor organization is not per se liable for the illegal acts of an affiliate. {Carbon Fuel Co. v Mine Workers, 444 US 212;
      Walters v Roadway Express, 400 F Supp 6, 557 F2d 521; Peabody Coal Co. v Local Union 1734, 543 F2d 10, 430 US 940; North Amer. Coal Corp. v Local Union 2262, 497 F2d 459; Villalba Co. v United Assn, of Journeymen, 413 F Supp 94 \Bacino v American Federation of Musicians, 407 F Supp 548; Rossi u Trans World Airlines, 350 F Supp 1263; Southern Ohio Coal Co. v United Mine Workers, 551 F2d 695; Federal Prescription Serv. v Amalgamated Meat Cutters, 527 F2d 269.) II. CSEA, Inc., did not act as the agent for the Rockland County Unit nor did the Rockland County Unit act as agent of CSEA, Inc. III. The record does not support the finding of the Supreme Court that CSEA, Inc., was involved in the alleged strike. (.Matter of Rothko, 84 Mise 2d 830, 56 AD2d 499, 43 NY2d 305; Welt v Beachcomber, Inc., 166 Mise 29; Federal Prescription Serv. v Amalgamated Meat Cutters, 527 F2d 269; Southern Ohio Coal Co. v United Mine Workers, 551 F2d 695.) IV. The court is without jurisdiction of the Civil Service Employees Association, Inc. (Bloom v Illinois, 391 US 194; Gompers v United States, 233 US 604; Gompers v Bucks Stove & Range Co., 221 US 418; Ingraham v Maurer, 39 AD2d 258; Rankin v Shanker, 23 NY2d 111; Michaelson v United States, 266 US 42; Yorktown Cent. School Dist. v Yorktown Congress of Teachers, 42 AD2d 422; Matter of Hynes v Doe, 101 Mise 2d 350; Matter of Davis, 88 Mise 2d 938; Shakun v Shakun, 11 AD2d 724.)

      Han S. Schoenberger, County Attorney (Martin Hurwitz of counsel), for respondent.
    I. In reviewing this certified question of law, factual determinations are presumed in favor of respondent. (Hession v Sari Corp., 283 NY 262; Vogel v Edwards, 283 NY 118; Chase Watch Corp. v Heins, 284 NY 129; Grossman v Consolidated Edison Co., 294 NY 39; Epstein v National Transp. Co., 287 NY 456; Thomas v Morris, 286 NY 266; Matter of City of New York [Vernon Parkway], 285 NY 326.) II. CSEA, Inc., has both direct process service and notice of the temporary restraining order. III. CSEA, Inc., and its Rockland County Unit are in fact a single organization based upon its own constitution and by-laws. CMatter of Civil Serv. Employees Assn, v Helsby, 21 NY2d 541; Matter ofWestlrondequoit Teachers Assn, v Helsby, 35 NY2d 46.) IV. The fine imposed was proper, warranted and well within appellant’s financial ability to pay. (City of New York v De Lury, 23 NY2d 175; United States v Mine Workers, 330 US 258; County of Orange v Civil Serv. Employees Assn., 51 AD2d 1031; Matter of Board ofEduc. [.Lakeland Federation of Teachers], 59 AD2d 900; City of New York v Vizzini, 49 AD2d 833.)
   OPINION OF THE COURT

Jones, J.

The applicable standard of proof to establish criminal contempt is proof beyond a reasonable doubt. The evidence in the record in this case is sufficient under that standard to sustain the determination of Supreme Court that the Civil Service Employees Association, Inc. (CSEA), the parent labor organization, was itself a participant in the strike of public employees in Rockland County from December 28, 1977 to January 6, 1978. Accordingly, the order of the Appellate Division affirming the judgment of Supreme Court holding CSEA in criminal contempt should be affirmed.

This is an action brought to enjoin a strike by public employees in violation of section 210 of the Civil Service Law, in which the County of Rockland seeks, inter alia, to punish CSEA for criminal contempt in failing to obey two temporary restraining orders dated December 27 and 29, 1977. When extensive efforts to negotiate a new contract covering employees of Rockland County represented by the Rockland County Unit of the Rockland County Local of CSEA failed, at 6:00 a.m. on December 28, 1977 approximately 1,500 Rockland County employees went on strike pursuant to a vote authorizing such action taken on December 7, 1977. The strike continued through January 6, 1978.

Prior to the commencement of the work stoppage an order to show cause was signed by Justice Silberman on December 27, 1977 which contained a restraining order enjoining CSEA and others from “engaging in a strike or causing, instigating, encouraging or condoning a strike”. A second order to show cause was signed by Justice Silber-man on December 29, 1977 containing the same restraining order as the first. On January 4, 1978, the present application was brought on by an order to show cause also signed by Justice Silberman seeking to punish CSEA and the other defendants for criminal contempt pursuant to sections 750 and 751 of the Judiciary Law for disobedience of the December 27 and 29 restraining orders.

Supreme Court granted the relief sought by the county, concluding that CSEA and the Rockland County Unit were each employee organizations within the meaning of subdivision 2 of section 751 of the Judiciary Law and subdivision 5 of section 201 of the Civil Service Law and that each had willfully disobeyed the lawful mandates of the court by willfully and knowingly continuing, encouraging and condoning the illegal strike of Rockland County” employees. CSEA was fined $250,000 and the Unit, $2,500. Supreme Court grounded its determination on findings that the Rockland County Unit and CSEA had each participated in the strike.

On appeal by CSEA, the Appellate Division affirmed on the ground that CSEA was liable for the actions of the Rockland County Unit on an agency theory. The Appellate Division then granted CSEA leave to appeal to our court on a certified question and in its order granting such leave stated that “the findings of fact are affirmed.” We now affirm, but on the ground that the evidence is sufficient to support the finding of Supreme Court that CSEA itself participated in the strike, a finding which as noted was affirmed at the Appellate Division.

At the threshold of its appeal CSEA asserts a lack of jurisdiction of the court to punish CSEA for contempt for failure of the county to establish either that CSEA was served with the temporary restraining orders or, in the alternative, that it had knowledge of their provisions. There is no merit to this assertion. The original file contains affidavits that the first order to show cause, dated December 27, 1977, was served on May Richardson, an agent in charge of the CSEA office in Albany, on December 28, 1977 and that the second order to show cause, dated December 29, 1977, was served on Larry Scanlon, a CSEA business agent, in New City, New York, on December 29 and on James Lennon, a vice-president of CSEA, in New Rochelle, New York, on December 31.

Supreme Court found that “the evidence clearly establishes that the defendant CSEA, Inc., was the moving force behind the strike, provided all of the financial support for the strike, assisted in the organization and managing of the strike and without its support and assistance, the defendant unit could not have carried out the work stoppage.” The evidence in this record sustains these findings.

In criminal contempt cases arising out of labor injunctions it is required that the evidence be such as to establish the willful violation of the court order beyond a reasonable doubt (Yorktown Cent. School Dist. v Yorktown Congress of Teachers, 42 AD2d 422, 426; see, also, New York City Tr. Auth. v Lindner, 83 AD2d 573; Board ofEduc. v Pisa, 55 AD2d 128, 137-138; City School Dist. v Schenectady Federation of Teachers, 49 AD2d 395, 399, app dsmd and mot for lv to app den 38 NY2d 820).

There was testimony at trial that: Neis Carlson, a CSEA employee who was serving as CSEA’s chief negotiator, spoke at a meeting of the Rockland County Unit’s membership on December 7, 1977 and urged a strike vote to strengthen the union’s negotiating posture; on December 27, Carlson called an Assistant County Attorney in charge of the negotiations and advised him that a strike had been authorized by the membership and that the employees would strike at 6:00 a.m. the next day; and, when the Assistant County Attorney told him that it was ridiculous to go on strike at this point, Carlson responded that the strike was on and there was no turning back.

A deputy sheriff of Rockland County testified that another CSEA employee, Thomas Brand, met with him on various occasions from a week prior to the strike through its entire duration and arranged that the Sheriff could reach Brand on a 24-hour basis during the strike, stating that Brand and CSEA staff would exercise their efforts to ensure that all picket lines would be maintained in an orderly fashion. Brand also provided the deputy with information as to the location of each of the picket lines and agreed to make picket captains and CSEA staff members near the lines readily identifiable so that law enforcement officers would know “who to speak to”. Guidelines for the conduct of the picketing were fully discussed by Brand and the Sheriff and procedures agreed upon.

Vouchers for payment by CSEA were introduced which had been submitted by six of its employees for transportation, food and lodging expenses for varying periods of time between December 26, 1977 and January 4, 1978. These vouchers listed the activity for which the expenses were incurred as “strike, Rockland County”, “Rockland County action”, or “Rockland County strike”. A similar voucher submitted by a CSEA employee, Lupasellá, listed “Rock-land Unit”. Lupasella was observed around a van owned by CSEA which was used as a CSEA field office during the strike.

Larry Scanlon, one of the CSEA employees who submitted travel vouchers for the Rockland strike, testified that he met with groups of Rockland County employees on December 27,1977 at their work sites, informed them that a strike had been called and advised them of the Taylor Law as it relates to strikes by public employees. Scanlon further admitted that he monitored the picket lines during the strike. There was also testimony that Scanlon was seen at the picket line with a clipboard going up to groups of employees and conversing with them. He was observed walking on a picket line carrying a sign on more than one occasion.

A van owned by CSEA and operated by a CSEA mail-room employee was seen at the picketing site, and CSEA stipulated that it was being used as a “field office”. Picketers were observed going into the van in an attempt to warm up.

Finally, a newspaper advertisement explaining “Why CSEA Is On Strike”, although signed by the President of the Rockland County Unit, was paid for by CSEA, and Unit records did not reveal any reimbursement.

This evidence is sufficient to establish beyond a reasonable doubt that CSEA itself participated in the strike.

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

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

Order affirmed, with costs. Question certified answered in the affirmative.

      . An exposition of the relationship among the three labor organizations involved will be helpful to an understanding of the legal issues tendered on this appeal. CSEA, a not-for-profit corporation, is the parent labor organization and the certified bargaining representative for various bargaining units representing approximately 100,000 employees affiliated with the State of New York. It did not hold any bargaining rights or representation rights with respect to the Rockland County striking employees. The Rockland County Local of the CSEA is an unincorporated association affiliated with CSEA. It is not a party to this proceeding. The Rockland County Unit of the Rockland County Local is an unincorporated association, chartered by the Local and a subdivision of the Local. At all times relevant for present purposes the Unit was the duly certified representative of the striking employees. Both CSEA and the Unit are parties defendant in this action, but only CSEA is appellant in the appeal now before us.

      . Although Supreme Court did not explicitly find that guilt had been established “beyond a reasonable doubt”, we interpret the references in the decision of that court to the “overwhelming” proof and the guilt of defendants as having been “clearly established” as an application of the equivalent of that standard, particularly in view of CSEA’s unchallenged submission in that court that proof was required beyond a reasonable doubt. CSEA does not now contend that any lesser standard was applied, but argues only that the evidence is insufficient to support the determination of Supreme Court under that standard. The subject of standard of proof was not addressed by the Appellate Division.

      . Inasmuch as we conclude that the evidence is sufficient beyond a reasonable doubt to establish that CSEA itself participated directly in the strike, we have no occasion to consider and do not address the conclusion of the Appellate Division that the liability of CSEA should be upheld on the theory that the parent organization was responsible for the actions of the Rockland County Unit.


author: Simons, J.

text:
    Seymour C. Post, Respondent, v 120 East End Avenue Corporation, Appellant.
    Argued February 20, 1984;
    decided May 8, 1984

      POINTS OF COUNSEL

      Leon Brickman for appellant.
    I. RPAPL 753 (subd 4) nullified the Yellowstone injunction. (Mannis v Jillandrea Realty Co., 94 AD2d 676; Klausner v Frank, 95 AD2d 653; Wilen v Harridge House Assoc., 94 AD2d 123; Nunez v 164 Prospect Park West Corp., 92 AD2d 540; Ameurasia Int. Corp. v Finch Realty Co., 90 AD2d 760; Finger Lakes Racing Assn. vNew York State Racing & Wagering Bd., 58 AD2d 285, 45 NY2d 471.) II. The Civil Court is the proper forum for the adjudication of this landlord and tenant dispute. (Lun Far Co. v Aylesbury Assoc., 40 AD2d 794.)

      Jay R. Fialkoff for respondent.
    I. The court below properly affirmed the order of Special Term which enjoined the termination of plaintiff’s proprietary lease pending trial of the underlying declaratory judgment action. (First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630; Sag-son Co. v Weiss, 83 Mise 2d 806; Matter ofDitmas Apts, v Coster, 196 Mise 728; Ameurasia Int. Corp. v Finch Realty Co., 90 AD2d 760; Finley v Park Ten Assoc., 83 AD2d 537; 150 East 57th St. Assoc, v Fletcher, AD2d 947; Podolsky v Hoffman, 82 AD2d 763.) II. The enactment of chapter 870 of the Laws of 1982 (amdg RPAPL 753) does not preclude the issuance of a Yellowstone injunction where tenant is a shareholder of landlord-cooperative corporation and where the alleged breach is not curable within 10 days. (Klausner v Frank, 95 AD2d 653; Wilen v Harridge House Assoc., 94 AD2d 123; Mannis v Jillandrea Realty Co., 94 AD2d 676; Nunez v 164 Prospect Park West Corp., 92 AD2d 540; Jimerson Housing Co. v Butler, 102 Mise 2d 423; Matter of State Tax Comm, v Shor, 43 NY2d 151; Colby v Moyer, 113 Mise 2d 217.) III. Landlord’s failure to raise at Special Term the applicability of RPAPL 753 (subd 4) precludes it from asserting that provision as a defense on this appeal. (Lefkowitz v Lebensfeld, 51 NY2d 442; Unitron Graphics v Mergenthaler Linotype Co., 75 AD2d 783; Collucci u Col-lucci, 58 NY2d 834; Matter of County of Broome v Eroni-mous, 81 AD2d 984; Blue Grass Partners v Bruns, Norde-man, Rea & Co., 75 AD2d 791; Goodfarb v Freedman, 76 AD2d 565; Matter of Aramini v Board ofEduc., 71 AD2d 804; Matter of Battaglia v Schuler, 60 AD2d 759; Pi Lambda Phi Fraternity v Seneca Beta Corp., 54 AD2d 1127.)
   OPINION OF THE COURT

Simons, J.

We are asked to interpret recently enacted RPAPL 753 (subd 4) (L 1982, ch 870). The section applies to holdover tenants in residential dwellings in New York City and the new subdivision 4 provides: “In the event that such proceeding [a summary proceeding to recover possession] is based upon a claim that the tenant or lessee has breached a provision of the lease, the [Civil] court shall grant a ten day stay of the issuance of the warrant [to remove], during which time the respondent [tenant] may correct such breach.” The question arises in an appeal from an order of Special Term of Supreme Court granting plaintiff tenant a preliminary injunction in a declaratory judgment action and denying defendant’s cross motion to dismiss the complaint.

Plaintiff, a psychiatrist, is a residential tenant pursuant to a proprietary lease in a building owned by defendant at 120 East End Avenue. Several years ago, he was required to vacate his private office and he began to schedule patients’ visits either at his office at Columbia University Medical School, where he is an associate professor, or at his 14-room apartment in defendant’s building. In June, 1981, defendant sent a notice to plaintiff stating that use of the premises for professional purposes without its consent violated terms of the lease which required that the apartment be used only as a private dwelling. It demanded that plaintiff discontinue seeing patients in the apartment immediately. There followed correspondence and conferences at which plaintiff admitted using his apartment to see patients intermittently, but stated that he was actively seeking office space. The situation did not change and on December 9, 1981, defendant again formally demanded that plaintiff stop seeing patients in the apartment. Finally, on February 23, 1982, defendant served a notice on plaintiff declaring that he was in violation of the residential covenants of the lease and that if he did not cure the violation by March 26,1982, his lease would be terminated as provided by its terms. Before the time to cure expired, plaintiff instituted this Supreme Court action seeking a declaration of his rights and an order permanently enjoining defendant from interfering with his right to quiet enjoyment. He pleaded four causes of action alleging (1) that he had not breached the terms of the lease, (2) that any default was not material, (3) that defendant was estopped from enforcing the requirements of residential use only and (4) that defendant had waived the default. These claims present disputed issues of facts.

On March 15,1982, plaintiff obtained a show cause order from Supreme Court which contained a temporary restraining order. Defendant served a cross motion, returnable on the same day, seeking dismissal of plaintiff’s complaint. On September 30,1982, the court denied defendant’s cross motion and granted plaintiff a Yellowstone preliminary injunction staying further proceedings by defendant until determination of the parties’ claims at trial.

Subsequent to the submission to Special Term, but before its order was executed, the Legislature amended RPAPL 753 by adding the new subdivision 4, effective July 29, 1982. The parties did not submit the application of the new subdivision to Special Term because it became effective after argument of the motion and defendant did not move for reargument. The Appellate Division affirmed the order and granted leave to appeal on a certified question (95 AD2d 697). That court considered the amended statute, the majority holding that it had no application because plaintiff’s violation could not be cured in 10 days as the statute provided, the two dissenting Judges contending that the violation could be cured within 10 days. The dissenters therefore believed that the Yellowstone injunction should not have been granted because plaintiff’s rights could be protected in Civil Court summary proceedings.

We agree that the new statute should be considered in the determination of this appeal. It is procedural and remedial in nature and it should be liberally construed to spread its beneficial effects as widely as possible. More importantly the statute will apply in any subsequent Civil Court proceedings, should this complaint be dismissed (see Klausner v Frank, 95 AD2d 653, 654; Nunez v 164 Prospect Park West Corp., 92 AD2d 540; McKinney’s Cons Laws of NY, Book 1, Statutes, § 54, pp 108-109).

Yellowstone injunctions became commonplace following our decision in First Nat. Stores v Yellowstone Shopping Center (21 NY2d 630). That appeal involved a controversy between a landlord and a commercial tenant over which of them was required to bear the expense of a sprinkler system required by government orders. The landlord, contending that the cost properly belonged to the tenant, implemented provisions in the lease which provided that if the tenant did not cure a breach within 10 days the tenancy could be terminated. The tenant instituted legal proceedings but failed to obtain a temporary restraining order. Long before the dispute was legally resolved, the lease terminated because of the tenant’s failure to cure or to toll the cure period. We held that under such circumstances the courts were powerless to revive the expired lease. As a result, tenants developed the practice of obtaining a stay of the cure period before it expired to preserve the lease until the merits of the dispute could be settled in court. The alternative for the tenant was to stand on his rights without correcting the violation, wait for the landlord to start summary proceedings in Civil Court and then defend against the landlord’s claim in that court. If he won, well and good; if he lost he forfeited everything because the lease had terminated. The remedy for this all or nothing result was to obtain a stay to toll the running of the cure period and the expiration of the lease. Because Civil Court does not have jurisdiction to grant injunctive relief, stay applications necessarily were made in Supreme Court in conjunction with an action for declaratory judgment. Once the merits had been decided by Supreme Court the stay terminated. If the tenant prevailed he had no further need for a stay. If he lost, he either cured the default during whatever part of the cure period remained or the lease expired and he was subject to removal by summary proceeding. These preliminary injunctions, known as Yellowstone injunctions, have been criticized as a means of stalling indefinitely the termination of a breached tenancy and they have been praised as a protection against arbitrary action by a landlord (see Batista, “Yellowstone” Revisited: The Pendulum Has Swung, NYU, Dec. 29, 1983, p 1, cols 3, 4; and cf. Wallach, “Yellowstone” Revisited II — A Different View of Doctrine, NYU, Feb. 21, 1984, p 1, cols 3,4). Whatever their merits, the courts have granted them routinely to avoid forfeiture of the tenant’s interest and in doing so they accepted far less than the normal showing required for preliminary injunctive relief. An applicant rarely has been required to demonstrate a likelihood of success, irreparable injury, and that the equities favored preliminary relief as those terms are traditionally understood. Indeed, the courts have not professed to require such evidence (see Ameurasia Int. Corp. v Finch Realty Co., 90 AD2d 760; Finley v Park Ten Assoc., 83 AD2d 537; Podolsky v Hoffman, 82 AD2d 763). The threat of termination of the lease and forfeiture, standing alone, has been sufficient to permit maintenance of the status quo by injunction. It is this history which presumably led to amendment of the statute.

RPAPL 753 (subd 4) provides that in a summary proceeding in Civil Court the court shall, after adjudicating the merits, grant a losing tenant a 10-day period within which to cure the default. In effect it gives the losing tenant what he would receive with a Yellowstone injunction in a Supreme Court action after losing, a period of time to cure the violation before being subject to removal. Thus defendant contends that the statute provides full protection to tenants, eliminating any possibility that a satisfactory preliminary showing can be made that the equities of the situation warrant injunctive relief (see, e.g., Klausner v Frank, 95 AD2d 653, supra; Nunez v 164 Prospect Park West Corp., 92 AD2d 540, supra; and see Newmann v Mapama Corp., 96 AD2d 793 [Silverman, J., concurring]). Specifically, it contends that plaintiff’s injunction must be vacated and its complaint dismissed because he can obtain full relief in Civil Court.

There is, however, one notable distinction between the Yellowstone remedy and the statutory remedy. A Yellowstone injunction prevents expiration of the lease by tolling the running of the cure period, a necessary precondition to terminating the lease; the statute does not do so by its terms. Thus before Civil Court can acquire jurisdiction the lease has expired and, under the ruling of Yellowstone, it cannot be revived. Troubled by this conceptual problem, unresolved by the language of the amendment, some courts have been reluctant to deny Supreme Court jurisdiction to grant injunctive relief (see, e.g., Wilen v Harridge House Assoc., 94 AD2d 123; cf. Schuller v D'Angelo, 117 Misc 2d 528). Acknowledging that under the statute the tenant presumably continues in possession after expiration of the lease if he cures within the 10-day period, the courts have been unable to determine by what right or under what terms he did so after the lease had expired.

Notwithstanding these problems, the interpretation urged by defendant appears to be precisely what the Legislature intended. The sponsor’s stated purpose for the bill was to permit tenants to remain in possession by curing the violation after the rights of the parties have been adjudicated. Notably, the amendment provides not only for a mandatory stay of removal but also provides that the tenant shall have an opportunity to cure. Although it makes no provision for reviving the lease, this omission was not unanticipated. The correspondence in the Governor’s bill jacket indicates that the legislation was opposed by some objectors for just this reason (see Letter of Counsel for New York State Builders Association, Inc., dated July 19, 1982). Moreover, if the legislation was not intended to authorize the continuation of the lease, the amendment was unnecessary because existing BPAPL 753 (subd 1) grants Civil Court the discretion to stay removal proceedings while the tenant relocates, not for just 10 days, but for six months. Unless the Legislature intended the tenancy to continue the amendment is surplusage. Thus, although the lease may contain a conditional limitation which permits it to be terminated if the tenant fails to cure, we interpret the statute as impressing its terms on residential leases and, in effect, authorizing Civil Court at the conclusion of summary proceedings to impose a permanent injunction in favor of the tenant barring forfeiture of the lease for the violation in dispute if the tenant cures within 10 days. Under this interpretation the statute would necessarily protect against any other losses incident to forfeiture, including in this case, the loss of plaintiff’s stock in the cooperative which could result from the termination of his lease. To this extent the statute limits our holding in First Nat. Stores v Yellowstone Shopping Center (21 NY2d 630, supra).

There are sound policy reasons for interpreting the statute in this way. Civil Court has jurisdiction of landlord tenant disputes (see CCA 204) and when it can decide the dispute, as in this case, it is desirable that it do so (Lun Far Co. v Aylesbury Assoc., 40 AD2d 794). Yellowstone injunctions have impaired the effectiveness of summary proceedings, however, by enabling tenants to go into Supreme Court where delay may be encountered because of crowded calendars and the pretrial proceedings available in plenary actions. Moreover, if the landlord prevails in Supreme Court, he must still go into Civil Court to evict the tenant. Under the amended statute the tenant’s claims may properly be alleged as defenses to the summary proceedings and complete relief may be obtained in Civil Court. The procedure adopted is expeditious and it permits both parties to avoid the expense and duplication of effort involved in proceeding in two courts.

The rationale of our decision necessarily presumes that Civil Court can grant full relief and that the tenant will be unable to make the necessary showing to invoke the equitable powers of Supreme Court. If the tenant is unable to obtain complete relief in Civil Court, then the jurisdiction of Supreme Court is still available (see Wilen v Harridge House Assoc., 94 AD2d 123, supra). The Judges of the Appellate Division differed on whether this violation could be cured in 10 days and thus whether the tenant could proceed in Supreme Court. That was a matter which had not been presented to Special Term for the simple reason that the statute had not yet been enacted when the case was submitted to it. The complaint does not contain any allegation concerning the time or the arrangements necessary to cure; plaintiff alleges only that he has been seeing a few patients on an intermittent basis. It is not possible, therefore, to determine whether the statute permits the parties to obtain complete relief in Civil Court thus requiring vacatur of the preliminary injunction and dismissal of the complaint.

Plaintiff objects to the amendment being considered for the first time by the Appellate Division. It is settled law, however, that a court applies the law as it exists at the time of appeal, not as it existed at the time of the original determination (Mayer v City Rent Agency, 46 NY2d 139, 149; Kelly v Long Is. Light. Co., 31 NY2d 25, 29; Matter of Tartaglia v McLaughlin, 297 NY 419, 424; Quaker Oats Co. v City of New York, 295 NY 527, 536) and new questions of law may be raised for the first time on appeal if they could not have been presented to the trial court (Telaro v Telaro, 25 NY2d 433, 439; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], §§ 161, 162). That is the case here because the statute had not been enacted at the time of submission. The amended statute should be applied to this appeal but because the facts have not been developed, we reverse and remit the matter to the Supreme Court for further proceedings (see Gilpin v Mutual Life Ins. Co., 299 NY 253, 263; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 168).

Accordingly, the order of the Appellate Division should be reversed, with costs, the certified question answered in the negative and the matter remitted to Supreme Court for further proceedings.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer and Kaye concur.

Order reversed, with costs, question certified answered in the negative and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.

         The Memorandum of Senator Leon Bogues was as follows: “Real Property Actions and Proceedings Law: § 753. This bill provides for a ten day stay before the court shall issue a warrant upon a claim that the tenant or lessee has breached a provision of the lease. The cause of the breach may, for various reasons, be temporary in nature correctable within the ten day period. This bill which deals only with residential tenants will allow a cure of a breach of the lease after a determination is made that a breach actually exists. Many tenants have the reasonable expectation that they will have an opportunity to cure once they have been advised by the court that, in fact, they have breached the lease provision. Under existing law, there is no such opportunity.” (NY Legis Ann, 1982, p 280.)


author: Meyer, J.

text:
    In the Matter of Daleview Nursing Home, Appellant, v David Axelrod, as Commissioner of Health of the State of New York, et al., Respondents.
    Argued March 23, 1984;
    decided May 10, 1984

      POINTS OF COUNSEL

      Thomas F. Gleason and Cornelius D. Murray for appellant.
    I. The retroactive readjustment undertaken by respondents unfairly punishes appellant for respondents’ errors and frustrates the cost containment theory of the prospective reimbursement system. CMatter of Beekman-Downtown Hosp. v Whalen, 44 NY2d 124; Hurlbut v Whalen, 58 AD2d 311; Matter of Mayflower Nursing Home v Office of Health Systems Mgt., 59 NY2d 935; Matter of Sigety v Ingraham, 29 NY2d 110; Matter of Blue v Whalen, 57 AD2d 240; Matter of Kaye v Whalen, 56 AD2d 111, 44 NY2d 754, 439 US 922.) II. The facts at bar present a compelling case for invocation of an estoppel against the State. (Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Public Improvements v Board ofEduc., 56 NY2d 850; Williams Press v State of New York, 37 NY2d 434; Community Health Servs. v Califano, 698 F2d 615; Matter of Sheppard-Pollack, Inc. v Tully, 64 AD2d 296; State of New York v McBride Transp., 56 Mise 2d 90; State of New York v New York Movers Tariff Bur., 48 Mise 2d 225; Schuster v Commissioner of Internal Revenue, 312 F2d 311; United States v Lazy FC Ranch, 481 F2d 985.)

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Peter H. Schiff of counsel), for respondents.
    Petitioner should be required to repay the overpayment that it has received; its claim respondents are estopped from recovering such overpayment lacks merit. CMatter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88; Matter of Gavigan v McCoy, 37 NY2d 548; Matter of Newcomb v New York State Teachers’ Retirement System, 36 NY2d 953; Williams Press v State of New York, 37 NY2d 434; Public Improvements v Board ofEduc., 56 NY2d 850; Granada Bldgs, v City of Kingston, 58 NY2d 705; Matter of Jamestown Lodge v Catherwood, 31 AD2d 981; Matter of Lee, 107 Mise 2d 928; Beth Israel v Berman, 114 Mise 2d 440, 92 AD2d 531; State of New York v Rockland County, 74 AD2d 921; Matter ofEbling v New York State Civ. Serv. Comm., 305 NY 221.)
   OPINION OF THE COURT

Meyer, J.

The overpayment of Medicaid reimbursement paid to a residential health care facility as a result of computer error in fixing the rate of reimbursement may be recovered by the State notwithstanding that the operator of the facility had no way of discovering the error and was not advised of it until seven months after State officials became aware of it. The order of the Appellate Division should, therefore, be affirmed, with costs.

The facts are not in dispute. Petitioner Daleview Nursing Home operates a combined nursing and health care facility in Farmingdale, Long Island. Both nursing and health-related care are covered by the Medicaid program (US Code, tit 42, § 1396 ff), participation by any given facility being a matter of choice for the provider. Reimbursement rates for both facilities were fixed for 1980 and 1981 approximately 60 days prior to the commencement of the particular year. In reliance upon those rates, petitioner elected to continue participation in the Medicaid program.

On June 22, 1981, petitioner was advised by the State’s Office of Health Systems Management that its 1980 and 1981 reimbursement rates had been computed incorrectly due “to electronic data processing problems” and that it had been overpaid to the extent of $150,961 during the 18-month period the incorrect rates had been in effect. It is undisputed that although petitioner did not receive notice of the error until June, 1981, it had been discovered by the State in November, 1980 and that on April 1, 1981, petitioner entered into a new union contract which raised employees’ salaries.

To review and enjoin the retroactive reduction and reimbursement thus imposed upon it, petitioner commenced this article 78 proceeding. Relying upon Matter of Hamptons Hosp. & Med. Center v Moore (52 NY2d 88) and Matter of University of Rochester-Strong Mem. Hosp. v Whalen (61 AD2d 867, mot for lv to app den 44 NY2d 646), Special Term dismissed the petition. On similar reasoning the Appellate Division affirmed, with one Justice dissenting on the ground that the State’s failure to act for seven months after discovery of the error “should be classified as a considered judgment” and that the failure to notify petitioner was “egregious and inexcusable.” We affirm.

We have held many times that estoppel is not available against a governmental agency in the exercise of its governmental functions (Matter of City of New York v City Civ. Serv. Comm., 60 NY2d 436, 449; Granada Bldgs, v City of Kingston, 58 NY2d 705, 708; Public Improvements v Board of Educ., 56 NY2d 850, 852; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 93, supra; Matter of Galanthay v New York State Teachers’ Retirement System, 50 NY2d 984, 986; Board of Supervisors v Ellis, 59 NY 620, 625). And, as was made clear in Moore (52 NY2d, at p 93, n 1), such exception as has been made to that rule is of “very limited application” and has been “addressed to an unusual factual situation.”

Petitioner does not dispute that the overpayment which the State seeks to recoup resulted from a computer error by reason of which not all of the factors required to be considered in fixing petitioner’s reimbursement rate were taken into account. Nor does it seek to contest the common-law right of action, also long recognized in this State (People v Journal Co., 213 NY 1, 8; Board of Supervisors v Ellis, 59 NY 620, 624 ff, supra; People v Fields, 58 NY 491, 505; Matter of Fahey v Whalen, 54 AD2d 1097, app dsmd 41 NY2d 900), to recover an overpayment of governmental moneys.

It argues, rather, (1) that respondent was not engaged in a governmental function, (2) that petitioner budgeted on the basis of the rate fixed by the computer and had no way of discovering during the 18 months it was being overpaid at the rate of almost $9,000 a month that the computer had erred, and (3) that at least as to the seven months after the State discovered the error but withheld informing petitioner of it, what is involved is not an error in calculation but an error of judgment.

The first two contentions can be quickly disposed of. In contracting with petitioner pursuant to the Medicaid program for skilled nursing care and health-related care for persons in need of those services, the Commissioner of Health was acting in a governmental capacity (Schaubman v Blum, 49 NY2d 375, 379; Matter of Carillo v Axelrod, 88 AD2d 681); indeed was acting as a “regulatory governmental agency” (Solnick v Whalen, 49 NY2d 224, 232). Moreover, the severely limited recognition of estoppel as a defense to an action for recoupment stems not from the thought that the recipient of an overpayment may not have equities in his or her favor, but from considerations of sovereign immunity, protection of the public fisc, and separation of powers (Lee v Munroe, 7 Cranch [11 US] 366, 370; Board of Supervisors v Ellis, 59 NY 620, 625, supra; see Berger, Estoppel Against the Government, 21 U of Chi L Rev 680, 683), leading to the conclusion that it is better that the recipient “should now and then suffer by such mistakes, than to introduce a rule against the abuse of which * * * it would be very difficult for the public to protect itself” (Board of Supervisors v Ellis, supra, at p 625). If there is to be change in that long-accepted rule, as petitioner suggests, the change should come from the Legislature.

Judgment enters the equation not as an exception to the no-estoppel rule, but because the common-law right of recoupment does not extend to payments made under a statute which predicates determination of the amount to be paid upon judgmental considerations involving expertise and thus leaves that determination to the quasi-legislative discretion of the governmental official making it (Matter of Catholic Med. Center v Department of Health, 48 NY2d 967, 968-969; Hurlbut v Whalen, 58 AD2d 311, 318-319, mot for lv to app den 43 NY2d 643; United States v Barlow, 132 US 271, 280; see Matter of Mayflower Nursing Home v Office of Health Systems Mgt., 59 NY2d 935, 938; Matter of University of Rochester-Strong Mem. Hosp. v Whalen, 61 AD2d 867, 868, mot for lv to app den 44 NY2d 646, supra). Such judgment, if any, as was involved in the failure to inform petitioner of the error for seven months after the Commissioner discovered the computer error cannot be brought within that concept.

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

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Simons and Kaye concur.

Order affirmed, with costs.


author: Wachtler, J. Kaye, J. Meyer, J.

text:
    The People of the State of New York, Appellant, v Robert Valles, Respondent.
    Argued February 20, 1984;
    decided May 8, 1984

      POINTS OF COUNSEL

      Mario Merola, District Attorney (Mark L. Freyberg and Steven R. Kartagener of counsel), for appellant.
    The Grand Jury proceeding was not “defective” due to the absence of an instruction by the prosecutor on the affirmative defense of extreme emotional disturbance. (.People v Calbud, Inc., 49 NY2d 389; People v Shelton, 88 Mise 2d 136, 78 AD2d 821; People v Casassa, 49 NY2d 668; People v Patterson, 39 NY2d 288; People v Ford, 102 Mise 2d 160; United States v Calandra, 414 US 338; Matter of Additional Jan. 1979 Grand Jury of Albany Supreme Ct. v Doe, 50 NY2d 14; People v Rosenbaum, 107 Mise 2d 501; People v Galuppo, 98 Mise 2d 395; People v Karassik, 90 Mise 2d 839.)

      Barry C. Scheck and Lawrence A. Vogelman for respondent.
    The courts below were correct in finding that respondent was prejudiced, and the Grand Jury misled by the District Attorney’s failure to charge the affirmative defense of extreme emotional disturbance. (People v Calbud, Inc., 49 NY2d 389; People v Patterson, 53 NY2d 829; People v Williamson, 51 NY2d 801.)
   OPINION OF THE COURT

Wachtler, J.

Defendant was arrested and charged with having shot and killed a man. Exercising his right to testify before the Grand Jury, defendant asserted that the shooting occurred as the result of his efforts to protect his stepdaughter from an attack. The charge of murder in the second degree, and upon defendant’s specific request, the complete defense of justification, were submitted to the Grand Jury for its consideration. Defendant was indicted for murder in the second degree.

The evidence before the Grand Jury was clearly sufficient to establish a prima facie case. The indictment has been challenged on the ground that the Grand Jury proceedings were rendered defective by the prosecutor’s failure to instruct that body concerning the affirmative defense of extreme emotional disturbance. Although that defense may have been suggested by the evidence, the courts below erred in dismissing the murder count of the indictment on this ground.

The District Attorney is required to instruct the Grand Jury on the law with respect to the matters before it (CPL 190.25, subd 6). Although the Grand Jury need not be charged with the same degree of precision as the petit jury, the District Attorney must give guidance adequate for the Grand Jury to carry out its function. We have held that, in the usual case, it is “sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime” (People v Calbud, Inc., 49 NY2d 389, 394-395). In this connection, we have recognized that a failure to furnish adequate or complete instructions may, in a given case, render the Grand Jury proceedings defective, mandating dismissal of the indictment {id., at p 395; CPL 210.20, subd 1, par [c]; 210.35, subd 5). This does not mean, however, that the Grand Jury must be charged with every potential defense suggested by the evidence.

The extent of the District Attorney’s obligation to instruct the Grand Jury concerning defenses must be defined with reference to the role of that body. “The primary function of the Grand Jury in our system is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution” (People v Calbud, Inc., 49 NY2d 389, 394, supra). Viewed from this perspective, the question of whether a particular defense need be charged depends upon its potential for eliminating a needless or unfounded prosecution.

The appropriate distinction for this purpose is between exculpatory and mitigating defenses. An exculpatory defense is one that would, if believed, result in a finding of no criminal liability. The Grand Jury’s function being to protect citizens from having to defend against unfounded accusations, such complete defenses would ordinarily rest peculiarly within that body’s proper domain. Thus, in the present case, had the Grand Jury believed that defendant’s acts were justified, no indictment would have been returned and an unwarranted prosecution would have been avoided. It is the possibility that criminal proceedings need not be undertaken at all which underscores the importance of the Grand Jury’s consideration of such defenses. This is so notwithstanding that, once a case goes to trial, the petit jury may disagree on the applicability of the same defense and find the defendant not guilty.

When a defense is urged in mitigation, on the other hand, it is not done in an effort to avoid criminal liability entirely; rather, it is an attempt to reduce the gravity of the offense committed. If believed, such a defense would not, by itself, result in a verdict of not guilty, and thus the criminal prosecution would not have been unwarranted. Because consideration of such defenses by the Grand Jury would not prevent unfounded criminal accusation, but would, at best, merely reduce the degree of the crime charged, their presentation to the Grand Jury will not ordinarily be mandated. The District Attorney is free to seek an indictment for the highest crime the evidence will support. It is not necessary that, having presented a prima facie case and those complete defenses suggested by the evidence, the District Attorney go further and present defenses in mitigation, which ordinarily will involve matters for resolution by the petit jury upon a full record.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed and the count of the indictment charging defendant with murder in the second degree reinstated.

Kaye, J.

(concurring). While concurring in the result reached, I write to express disagreement with the statement added by the majority that a District Attorney is free to seek indictment for the highest crime the evidence will support, and need never present defenses in mitigation, however conclusive or pervasive the evidence in support of such defenses might be.

By holding that a defense must be submitted to the Grand Jury only if its acceptance would result in exoneration, the majority ascribes an unduly narrow function to the Grand Jury. To be sure, the Grand Jury performs a vital function in determining whether any prosecution should be initiated. But it is relied upon as well to decide which crime should be charged, and the degree of crime charged may have important ancillary consequences. For example, the degree of crime charged impacts plea bargaining (CPL 220.10); whether a defendant is charged with a felony or a misdemeanor can determine other rights (see, e.g., CPL 30.30); and the effect of the crime charged upon a petit jury or sentencing Judge can hardly be ignored. (People v Felix, 58 NY2d 156, 164.) Since reliance is placed not only on the fact of an indictment but also on which offense is charged, the prosecutor should have some obligation to instruct that body on mitigating defenses raised by the evidence, certainly where the evidence supporting such defenses is clear and pervasive. (Cf. People v Rosenbaum, 107 Misc 2d 501; People v Galuppo, 98 Misc 2d 395; People v Karassik, 90 Misc 2d 839.) Such an obligation is particularly necessary in light of the trial court’s inability to dismiss or amend an indictment where the evidence is legally insufficient to establish the offense charged but sufficient to support any lesser included offense (CPL 210.30; Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 200.70, p 523).

The majority’s sweeping statement is not supported by People v Calbud, Inc. (49 NY2d 389), the only case cited in the opinion. Calbud did not even address the subject of mitigating defenses. In that case, the prosecutor sought an indictment for second degree obscenity and charged the Grand Jury by reciting the statutory definition of obscenity. Noting the lesser degree of precision necessary when charging a Grand Jury, the court held that the indictment need not be dismissed simply because the prosecutor failed to instruct the Grand Jury to judge the material using State-wide contemporary community standards. In acknowledging that one of the primary functions of the Grand Jury is to “determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution”, the court did not — as the majority does today — ignore the importance of the Grand Jury’s decision as to which crime to charge. Indeed, in citing CPL 190.65 (subd 1), the court recognized that the Grand Jury may indict for an offense when the evidence “provides reasonable cause to believe that such person committed such offense” (emphasis supplied).

A charge on extreme emotional disturbance not, in any event, warranted in the present case. Though both courts below found error in the prosecutor’s Grand Jury presentation (the Appellate Division terming the issue “close”), whether the evidence was sufficient to warrant instruction as to the extreme emotional disturbance defense is a question reviewable in this court. As noted, Grand Jury charges are scrutinized with less vigor than petit jury charges (People v Calbud, Inc., 49 NY2d 389, supra), and the evidence in my view did not so clearly support the extreme emotional disturbance defense as to require its submission. Moreover, it is significant that defense counsel, who was actively involved in presenting evidence and requesting detailed charges, did not specifically seek the extreme emotional disturbance defense. The prosecutor refused counsel’s request to charge manslaughter in the first and second degrees because more than two shots were fired. The prosecutor apparently understood the defense to be requesting a first degree manslaughter charge on the basis of subdivision 1 of section 125.20 of the Penal Law (causing death with intent to cause serious physical injury), since the number of shots fired would be more relevant to that theory than to the extreme emotional disturbance defense. While defense counsel in this situation cannot be held to the same requirement of precision in making requests as exists in the trial context, the courts should not ignore the absence of an actual request for such instruction by a defense attorney actively involved in the Grand Jury presentation. This is especially so where the facts indicate that defense counsel may well have made a tactical choice in omitting the request, believing that the Grand Jury would be more likely to accept the justification defense if not provided with the opportunity to conclude that respondent had fired the gun under extreme emotional disturbance.

Meyer, J.

(dissenting). In holding that whether the Grand Jury must be instructed concerning the effect of evidence presented to it the person under investigation, a distinction is to be made between exculpatory defenses, which must be charged, and mitigating defenses, which need not be, the majority ignores the common-law history of the Grand Jury, the purpose of allowing a potential defendant to appear before that body and to request that it call other witnesses on his or her behalf, and the substantial prejudice that may result to one indicted for a higher degree of offense than the evidence warrants. I, therefore, dissent.

Concentrating on the statement in People v Calbud, Inc. (49 NY2d 389,394) that the Grand Jury’s primary function is to “determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution”, the majority overlooks the role of that body, likewise declared in Calbud (49 NY2d, at p 396; accord Matter of Keenan v Gigante, 47 NY2d 160, 168) as a buffer against “unfounded and arbitrary accusations”, or, as the Supreme Court put it, “as a protector of citizens against arbitrary and oppressive governmental action” (United States v Calandra, 414 US 338, 343; see United States v Mandujano, 425 US 564, 571 [plurality opn]).

Unquestioned since the Grand Jury’s return of “Ignoramus” (we know nothing of it) in the Earl of Shaftesbury’s case in 1681 (8 How St Tr 759; Kuh, Grand Jury “Presentment”: Foul Blow Or Fair Play?, 55 Col L Rev 1103, 1107-1109; Edwards, The Grand Jury, pp 28-29), and the similar action of two colonial Grand Juries in 1734 in John Peter Zenger’s case (Kuh, loc cit.; Note, 74 Harv L Rev 590, 591), has been the right of the Grand Jury to nullify the law by refusing to indict notwithstanding the presentation to it of evidence sufficient to sustain an indictment. Not as prominently referred to in the literature, but nevertheless clear, is the fact that the degree of the offense was within the competence of the English Grand Jury as well. Thus, John Somers, Lord High Chancellor of England, states in The Security of Englishmen’s Lives (published in 1681, in relation to the Shaftesbury matter) that the Grand Jury, having heard all available proof, “are carefully to examine the nature of the facts, according unto the rules of the common law, or the express words of the statutes, whereby offences are distinguished, and punishments allotted unto each of them: it is true, that upon hearing the party, or his witnesses, the Petit Jury may acquit or judge the facts in the indictment to be less heinous, or malicious, than they were presented by the Grand Jury, but cannot aggravate them; which being considered, it will easily appear, by the intent and nature of the powers given unto Grand Juries, that they are by their oaths obliged, and their institution, ordained to keep all injustice from entering the first gates of our courts of judicature, and to secure the innocent not only from punishment, but from all disgrace, vexation, expence, or danger” (at pp 80-81 [emphasis supplied]). Referring to a statute providing that no one should be indicted except upon such “proof, as by the Jury, by whom he shall be indicted, shall be thought good, lawful and sufficient to prove him, or them guilty of the said offences”, Somers continued: “Herein is declared, the only true reason of indictments, i.e. the Grand Jury’s judgment that they have such testimonies as they esteem sufficient to prove the party indicted guilty of the crimes whereof he is accused, and whatsoever the indictment doth contain, they are to present no more, or other crimes, than are proved to their satisfaction, as upon oath they declare it is, when they present it” {id., at p 89 [emphasis supplied).

Not surprisingly, because our “grand jury was intended to operate substantially like its English progenitor” (Costello v United States, 350 US 359, 362), similar expressions will be found in Mr. Justice Stephen Field’s 1872 charge to a Grand Jury while on circuit (2 Sawyer 667, 670): “if, in the course of your inquiries, you have reason to believe that there is other evidence, not presented to you, within your reach, which would qualify or explain away the charge under investigation, it will be your duty to order such evidence to be produced”, and in the 1969 holding of the District of Columbia Circuit Court of Appeals in Gaither v United States (413 F2d 1061, 1066) that “The content of the charge, as well as the decision to charge at all, is entirely up to the grand jury — subject to its popular veto, as it were” (emphasis supplied).

The issue does not appear to have been passed upon by a New York appellate court until the present case, and by the same Appellate Division, in dictum, in People v Isla (96 AD2d 789). Trial courts that have confronted the question have held that there is a duty on the prosecutor to instruct the Grand Jury with respect to affirmative defenses (People v Karassik, 90 Misc 2d 839 [entrapment]; People v Smith, NYLJ, March 16, 1976, p 7, col 3 [duress]; see People v Rosenbaum, 107 Misc 2d 501 [claim of right as to taking]; contra People v Brown, 87 Misc 2d 403 [agency, entrapment]), any exceptions to the governing Penal Law provision (People v McWilliams, 96 Misc 2d 648), exculpatory evidence (People v Friedman, 116 Misc 2d 212; People v Ferrara, 82 Misc 2d 270), the degrees of larceny and the relationship of defendant’s actions to his position as executor (People v Mackey, 82 Misc 2d 766), and the alternate actions open to the Grand Jury under CPL 190.60 (see People v Filis, 87 Misc 2d 1067) but not as to its right to request removal of a charge to the Family Court (People v Harris, 100 Misc 2d 736) and not as to the effect of mental disease or defect on criminal responsibility (People v Galuppo, 98 Misc 2d 395). Although those decisions evidence a need for guidance from this court on the question, the majority’s bright line distinction between exculpation and mitigation is, in my view, an improper answer for it ignores the purpose of CPL 190.50 (subds 5, 6) permitting defendant to present his own testimony before the Grand Jury and request that body to call particular witnesses, and in many cases will, contrary to the protective function of the Grand Jury, result in substantial prejudice to the person under investigation.

By giving such a person the right to appear before the Grand Jury on his or her own behalf and to request that body to call others as witnesses, CPL 190.50 emphasizes the Grand Jury’s role as protector against unfounded and arbitrary accusation. The statute has little meaning, however, unless the Grand Jury is informed of the effect to be attributed to the evidence thus placed before it. The failure to do so will, moreover, have very real and important results for the person being investigated.

Thus, under our holding in People v Glover (57 NY2d 61), a defendant is entitled to a lesser included offense instruction only if it is impossible to commit the offense charged in the indictment without by the same conduct committing the lesser offense. On that basis we held Glover not entitled to an instruction on criminal facilitation in the second degree (Penal Law, § 115.05) as a lesser included offense of the charge of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41, subd 1), because it was theoretically possible for a defendant illegally to sell a drug without intending to aid anyone else. Had the evidence on which Glover sought the criminal facilitation instruction been presented by him to the Grand Jury, that body may well have indicted him for both sale and criminal facilitation, or possibly only for the latter offense. Only if they indicted for facilitation alone or for both would facilitation be an option that the petit jury could consider. The point is that the prosecutor is but a legal advisor to the Grand Jury (CPL 190.25, subd 6), that although he “may appropriately explain the law and express an opinion on the legal significance of the evidence * * * [he] should give due deference to its status as an independent legal body” (ABA Standards Relating to The Prosecution Function [2d ed], Standard 3-3.5 [a]), that the ultimate decision on what to charge is for the Grand Jury, not the prosecutor, and that, therefore, the majority paints with much too broad a brush in suggesting that (majority opn, at p 39) “defenses in mitigation * * * ordinarily will involve matters for resolution by the petit jury” rather than the Grand Jury. And the difference between sale (an A-II felony) and facilitation (a class A misdemeanor) being the difference between a maximum sentence of life imprisonment and a one-year maximum, the result to a person accused is far from insignificant or harmless. Indeed, since the failure properly to instruct the Grand Jury results in there being fewer options presented to the petit jury, it may even be that it “raise[s] difficult constitutional questions.” (Keeble v United States, 412 US 205, 213.)

Moreover, should the Grand Jury decide to “ignoramus” the higher and indict only for the lesser degree of crime, the person accused will be affected in many important ways, including the amount of bail (CPL 510.30, subd 2, par [a], cl [viii]), the plea bargaining process (CPL 220.10), the possibility of probation as against imprisonment (see People v Felix, 58 NY2d 156), the fee that will be charged by his attorney, and the media publicity that will be generated by the accusation. Yet it was just such “trouble, expense and anxiety of a public trial before a probable cause is established by the presentment and indictment of a grand jury” (Jones v Robbins, 8 Gray [Mass] 329, quoted in Ex parte Bain, 121 US 1, 12) that the Grand Jury was established to prevent. We should not permit the importance of the Grand Jury to be thus frittered away.

Judges Jasen, Jones and Simons concur with Judge Wachtler; Judge Kaye concurs in result in a separate opinion in which Chief Judge Cooke concurs; Judge Meyer dissents and votes to affirm in another opinion.

Order, insofar as appealed from, reversed, etc.

       Weapons-related charges were also submitted to the Grand Jury. These counts of the indictment are not challenged on this appeal.

       Judge Kaye’s concurrence, while agreeing with much that follows, concludes that the evidence did not so clearly support the defense of extreme emotional disturbance as to require instruction to the Grand Jury and that defendant, in effect, waived the presentation of the issue to the jury. Respectfully, I note that both lower courts found the evidence sufficient and that its weight is for the Grand Jury not the courts. As for waiver, I note that, although defendant’s attorney did not mouth the words " xtreme emotional disturbance,” he did notify the Assistant District Attorney that defendant’s stepdaughter had been raped a year before and that she told defendant of the incident, and stated that “it is important that the Grand Jury be informed of this incident and the defendant’s knowledge of it in order that defendant’s state of mind at the time of the shooting be fully understood.” He also requested a charge on manslaughter in the first degree, which as defined by subdivision 2 of section 125.20 of the Penal Law includes causing death “under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance”. The presentation of the evidence to the Grand Jury would serve no purpose unless they were informed of its significance and we should not woodenly insist upon the mouthing of magic words, at the risk of being held to have waived, when the issue is as clearly presented to the prosecutor as it was on this record.


author: Wachtler, J. Kaye, J.

text:
    The People of the State of New York, Appellant, v Anthony Petralia, Respondent.
    Argued February 16, 1984;
    decided May 8, 1984

      POINTS OF COUNSEL

      John J. Santucci, District Attorney (Catherine Lomuscio and Richard G. Denzer of counsel), for appellant.
    The court’s decision to suppress certain evidence was improper. (.People v Berrios, 28 NY2d 361; People v Malinsky, 15 NY2d 86; People v Petro, 54 NY2d 759; People v Delgado, 79 AD2d 976; People v Jones, 80 AD2d 876; People v Green, 87 AD2d 892; People v Lypka, 36 NY2d 210; People v Havelka, 45 NY2d 636; Whiteley v Warden, 401 US 560; People v Horowitz, 21 NY2d 55.)

      David Samel and William E. Hellerstein for respondent.
    The court below was correct in deciding that the People failed to come forward with probable cause for respondent’s arrest where the only witnesses at the suppression hearing was a police officer who had relied solely on radio communications from another officer. {People v Havelka, 45 NY2d 636; People v Lypka, 36 NY2d 210; Whiteley v Warden, 401 US 560; People v Horowitz, 21 NY2d 55; People v Landy, 59 NY2d 369; People v Calderon, 88 AD2d 604; People v Green, 87 AD2d 892; People v Delgado, 79 AD2d 976, 53 NY2d 706; People v Ward, 95 AD2d 233; People v Bouton, 50 NY2d 130.)
   OPINION OF THE COURT

Wachtler, J.

The defendant has moved to suppress evidence seized at the time of his arrest for allegedly selling drugs to an undercover police officer who had informed the arresting officer of the sale. After a hearing, at which only the arresting officer testified, the trial court suppressed the evidence on constraint of certain Appellate Division decisions which hold the testimony of the undercover officer essential to establish probable cause under these circumstances. The Appellate Division affirmed, and the People have appealed. The issue is whether the People failed, as a matter of law, to meet their initial burden of showing probable cause for the arrest when they produced the arresting officer who testified that he relied on information from an undercover police officer who reported that he had just purchased drugs from the defendant.

The incident occurred in Queens County on March 2, 1981, and involves a team of New York City police officers specially trained in narcotics. On that date, the team was engaged in a “buy and bust” operation in which an undercover officer buys drugs from street dealers while “back up” officers follow the sellers and arrest them some distance away, after the undercover officer informs them that a sale has been completed and describes or identifies the seller. At approximately 4:30 p.m. that day, one of the backup officers, Detective McCarthy, was contacted on a police radio by the undercover officer who stated that he had just purchased heroin from “a male white, approximately 25, six feet, 150 pounds” wearing a blue jacket and black pants. The undercover officer also informed Detective McCarthy that the seller had entered a black Ford bearing a certain license plate and stated the “stash was in the trunk”.

Detective McCarthy followed the vehicle for approximately six blocks. When the defendant stopped his vehicle, the officer placed him under arrest and searched him and the trunk of the car. In one of the defendant’s pants pockets the officer found four $5 bills and one $10 bill which he identified as “previously reported buy money”. From the trunk of the car the officer recovered a bundle of glassine envelopes containing white powder which proved to be heroin under laboratory analysis. The defendant was indicted for criminal possession and sale of a controlled substance. He moved to suppress the evidence seized at the time of his arrest.

At the hearing the only witness called by the People was the arresting officer, Detective McCarthy, who related the above events and identified the undercover officer by shield number. The defendant did not call any witnesses. The court originally denied the motion to suppress. However, on reargument the court granted the motion and suppressed the evidence on constraint of certain recently decided cases from the Appellate Division, Second Department, because the People had not called the undercover police officer to testify at the hearing. The court noted that “although constrained to follow the Appellate Division decisions” it found difficulty in reconciling the rule with other decisions from this court, and the United States Supreme Court, and observed that the rule would have a “chilling” effect on undercover police activities.

The Appellate Division affirmed in a brief memorandum stating: “The People concede that affirmance is mandated by this court’s prior decisions in People v Delgado (79 AD2d 976) and People v Petro (83 AD2d 566, app dsmd 56 NY2d 782), but urge that this court overrule those decisions. The holding in those cases followed the reasoning set forth by the Court of Appeals in People v Havelka (45 NY2d 636) and People v Lypka (36 NY2d 210), and has been followed by subsequent decisions of this court (see, e.g., People v Calderon, 88 AD2d 604; People v Green, 87 AD2d 892).”

The facts in the cases from this court cited by the Appellate Division (People v Havelka, 45 NY2d 636; People v Lypka, 36 NY2d 210) are substantially different from the facts of this case. It is true that in each of those cases the arresting officer relied on information from another officer, and we held that the testimony of the sending officer was necessary to establish probable cause. However, the key factor in those cases is that the record did not indicate how the sending officer had acquired his information. In neither case did the record show that the sending officer had personal knowledge of the facts he transmitted and, indeed, in Havelka he had relied on a source or series of sources of unknown reliability.

The reason for the rule first announced in Lypka is illustrated by the Supreme Court decision in Whiteley v Warden (401 US 560) which was cited in Lypka. In Whiteley the arresting officer had relied on a radio bulletin that there was a warrant for the defendant’s arrest. The warrant had been obtained by another officer who had relied, in turn, on an “unnamed informant”, but did not provide sufficient facts in the warrant application to “support either the reliability of the informant or the informant’s conclusion that these men were connected with the crime” (Whiteley v Warden, supra, at p 567). The court noted (at p 568) that the arresting officers “were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest”. Thus, in that case, the police had acted as a conduit for an unknown source whose information did not facially constitute probable cause and could not be said to improve in quality merely because it had been relayed from one officer to another.

In the case now before us, the arrest was not based on information from an unknown source of unknown reliability. The evidence submitted to the court by the arresting officer shows that he relied on information from another officer on the narcotics team who had personally witnessed the defendant commit the crime just prior to the radio transmission. This testimony by one of the officers involved in the operation would, if credited, establish probable cause for the arrest and there was no need for the People to also produce the undercover officer to support a finding of probable cause by the court. As the Supreme Court noted in United States v Ventresca (380 US 102, 111): “Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number”. Although that case dealt with a warrant, the same type of analysis is required when a court is called upon at a suppression hearing to determine whether the People have met their burden of coming forward with evidence establishing probable cause for an arrest (People v Dodt, 61 NY2d 408, 415; People v Bouton, 50 NY2d 130, 135).

There may be cases in which the evidence presented at the hearing raises substantial issues relating to the validity of the arrest, the resolution of which could be aided by requiring the People to produce the undercover officer or by making him available to the defendant. But a per se rule requiring that he appear in every instance, as the defendant urges here, is unwarranted and could jeopardize the officer or his usefulness in pending or future investigations. Of course, the undercover officer may have to appear at a trial, if there is one, but there is no need for the People to produce all of their witnesses at a hearing where they only bear the burden of coming forward with evidence showing that there was probable cause for the arrest, and are not obligated to establish guilt beyond a reasonable doubt.

Contrary to the dissent’s contention, our rejection of the per se rule does not mean that the “decision of the police that there was probable cause to arrest and search defendant * * * is thus effectively insulated from challenge by defendant”. The defendant is always free to cross-examine the arresting officer and any other witnesses produced by the prosecution and may, of course, call his own witnesses or testify on his own behalf with respect to his conduct prior to the arrest. This testimony may disclose to the court that probable cause was lacking, in which case the evidence will be suppressed, or may, as noted, present substantial questions concerning the legality of the police conduct in making the arrest which may only be resolved by producing the undercover police officer or making him available to the defendant. Absent such a showing, however, requiring the People to produce the undercover officer is gratuitous and can only serve to expose or compromise the undercover officer, disrupt pending investigations in which he may be involved, or provide the defendant with a means of pressuring the People into accepting a “better” plea in order to avoid these consequences. Thus the flexible rule we have adopted should reasonably accommodate the legitimate interests of the defendant without rendering impractical the “buy and bust” operations which have become an important, if not indispensable, part of police efforts to curtail illegal drug activity.

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress denied, and the case remitted to the Supreme Court, Queens County, for further proceedings on the indictment.

Kaye, J.

(dissenting). Where, as here, an accused challenges a warrantless search and seizure conducted by one police officer based upon accusations received from another police source, “to sustain their burden at the suppression hearing * * * the People must demonstrate that the sender or sending agency itself possessed the requisite probable cause to act.” (People v Lypka, 36 NY2d 210, 214; People v Havelka, 45 NY2d 636.) In now holding that the People have met their burden without producing the accusing officer to testify as to the basis for his accusation, the majority reasons that the seemingly clear command of Lypka and Havelka is inapplicable because “the key factor in those cases is that the record did not indicate how the sending officer had acquired his information” whereas here the arresting officer’s testimony purportedly showed that the accusing officer “had personally witnessed the defendant commit the crime.”

While the majority would examine the sending officer’s accusations in terms of veracity, reliability and basis of knowledge, as if information had been received from a private informant (see People v Elwell, 50 NY2d 231), the rule in Lypka and Havelka does not rest on concern for the veracity, reliability or knowledgeability of police officers as informants. The rule is based upon entirely different considerations, namely the right of an accused under the Fourth Amendment of the United States Constitution and section 12 of article I of the New York Constitution to put government accusers — as opposed to private accusers — to their proof on the issue of probable cause to arrest or to search. Because the result today disregards this fundamental distinction and represents an unwarranted departure from our prior decisions, I respectfully dissent.

The only basis in the record for the majority’s conclusion that the undercover officer personally observed defendant commit a crime is the testimony of the arresting officer that the undercover officer told him the defendant committed a crime. The arresting officer, while technically subject to cross-examination by defendant, was without personal knowledge of the relevant facts. He admitted that he did not personally observe any sale of drugs or “stash” in the trunk of defendant’s automobile, and received no information other than the cursory accusatory radio communication from the undercover officer, who, the arresting officer testified, “didn’t tell me anything about his observations.” Although there was no claim that he was unavailable, the undercover officer, on whose accusations the lawfulness of defendant’s warrantless arrest and the search of his person, as well as the warrantless search of the trunk of defendant’s automobile, must depend, was not produced and did not testify. The People produced no other witness at the hearing. When defense counsel attempted to introduce the undercover officer’s report, both as to the “buy” and as to the search, the People objected on the ground that it could not be used to impeach because “[t]his is written as to what someone else saw and heard”, and the court sustained this objection. The decision of the police that there was probable cause to arrest and search defendant and also to search the trunk of defendant’s automobile is thus effectively insulated from challenge by defendant.

Such insulation of the government’s decision to arrest and search is prohibited by the Federal and State Constitutions. Unlike those of a private informant, the accusations of a government officer are subject to constitutional proscriptions (People v Gleeson, 36 NY2d 462, 465) and “an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.” (Whiteley v Warden, 401 US 560, 568.) Where the accuser is a police officer, and not a private informant, the soundness of his accusation implicates the accused’s constitutional rights, for if the accuser is in error, the accused has been the subject of improper governmental conduct, regardless of the good faith of the arresting officer. (People v Ward, 95 AD2d 233, 239.) If in a particular case it is necessary to preserve the anonymity of an undercover officer — a claim which was not in any event made by the People in the present case — then measures can be taken to conceal the officer’s identity while testifying, without loss of an accused’s constitutional rights.

Clearly, it is incumbent upon the People in the first instance to show the existence of probable cause to arrest the defendant and to search his automobile. (People v Bouton, 50 NY2d 130, 136.) The end result of today’s decision is that the People can fulfill that burden at a suppression hearing by producing an officer who has no knowledge of and cannot be impeached or even examined concerning the basis for probable cause, but who will testify only that he was told by another officer that the defendant committed a crime and that there is contraband in defendant’s automobile. This new per se rule ignores basic constitutional safeguards.

Judges Jasen, Jones, Meyer and Simons concur with Judge Wachtler; Judge Kaye dissents and votes to affirm in a separate opinion in which Chief Judge Cooke concurs.

Order reversed, etc.

       Several statements made by the dissent must be disclaimed in order to avoid confusion in future cases. First, we are not equating an undercover police officer with a private informant, “in terms of veracity, reliability and basis of knowledge”. It should be evident that we have taken the contrary position that a police officer working undercover is still a police officer and should not be equated with a mere private or civilian informant for the purposes of assessing the reliability of the information he provides. Secondly, the undercover officer’s report, which was included at the hearing in this case, was offered by the defendant in an effort to show that there was no basis, independent of the arrest, for searching the trunk of the car; it was not offered to challenge the legality of the arrest itself and therefore has no bearing on that issue.

      . Indeed, in Lypka, this court observed that the police bulletin which instigated the search and seizure was “far more reliable than the usual sort of hearsay upon which warrants may issue.” (36 NY2d, at p 214.) Nonetheless, the communication would not suffice for probable cause.

      . Where, as here, the testifying officer lacks personal knowledge, no other witness is produced, and the defendant is arrested alone, it is hard to imagine the sort of “showing” the majority contemplates in order to require production of the undercover officer, or where there is flexibility in its rule.