author: Gabrielli, J. Meyer, J.

text:
    The People of the State of New York, Appellant, v Calbud, Inc., Doing Business as Mayfair Theatre, Marvin Muchnick, Also Known as Buddy March and Calvin Young, et al., Respondents.
    Argued January 8, 1980;
    decided February 14, 1980

      POINTS OF COUNSEL

      John J. Santucci, District Attorney (James Clark Quinn of counsel), for appellant.
    I. The application of a "statewide” standard in evaluating obscenity under section 235.00 of the Penal Law is neither constitutionally nor statutorily required. (Miller v California, 413 US 15; People v Heller, 33 NY2d 314; Jenkins v Georgia, 418 US 153; Hamling v United States, 418 US 87; United States v Cangiano, 491 F2d 906, 419 US 904; United States v Various Arts. of Obscene Mdse., Schedule No. 1303, 433 F Supp 1132; United States v Cutting, 538 F2d 835; Pinkus v United States, 436 US 293; Smith v United States, 431 US 291.) II. The instructions to the Grand Jury did not so impair the integrity of the proceeding as to require dismissal of the indictments. (People v Di Falco, 44 NY2d 482; People v Brown, 193 App Div 203; People v Harris, 182 Misc 787, 268 App Div 731, 294 NY 424; People v Iannone, 45 NY2d 589; People v Doe, 47 Misc 2d 975, 24 AD2d 843; People v Van Dusen, 56 Misc 2d 107; People v Vosburg, 21 Misc 2d 372; People v Percy, 45 AD2d 284, 38 NY2d 806; People v. Meachem, 50 AD2d 953; People v Rallo, 46 AD2d 518, 39 NY2d 217.)

      Seymour S. Detsky and Herbert S. Kassner for T.Q. Theatre Corp. and others, respondents.
    I. The Court of Appeals has held that in determining community standards, a State-wide standard is to be applicable under section 235.00 of the Penal Law, and this determination has been affirmed and reaffirmed by our State courts and is part of our constitutional fabric in determining the manner in which the law relating to obscenity may be applied. (Miller v California, 413 US 15; People v Heller, 33 NY2d 314; People v Nitke, 45 AD2d 543; People v Ciampa, 57 AD2d 932; Jenkins v Georgia, 418 US 153.) II. The Grand Jury should have received instructions and guidance with respect to the tripartite test of obscenity, the manner in which it has been interpreted by the courts, and the fact that State-wide community standards were to be applied by the Grand Jury. (N. A. A. C. P. v Button, 371 US 415; Interstate Circuit v Dallas, 390 US 676; Baggett v Bullitt, 377 US 360; Dombrowski v Pfister, 380 US 479; Elrod v Burns, 427 US 347; Bates v Little Rock, 361 US 516; Thomas v Collins, 323 US 516; Shelton v Tucker, 364 US 479; Wooley v Maynard, 430 US 705.)

      Harry H. Burstein and Stanley H. Fischer for Meridian Time Corp. and another, respondents.
    A "statewide” community standard is required in the charge to the Grand Jury. (People v Heller, 33 NY2d 314; Miller v California, 413 US 15; People v Ciampa, 57 AD2d 932; People v Andrek, 50 AD2d 637; People v Nitke, 45 AD2d 543; People v Hausman, 82 Misc 2d 1032; People v Dingle, 70 Misc 2d 840; People v Martin, 78 Misc 2d 1087; People v Mackey, 82 Misc 2d 766; People v Rallo, 46 AD2d 518.)

      Edward Gasthalter for Evsten Theatres, Inc., and others, respondents.
    Once having elected to proceed against respondents by way of indictment, appellant was required to charge the Grand Jury that a "statewide standard” applies. (People v Heller, 33 NY2d 314; Miller v California, 413 US 15; Matter of Schinasi, 277 NY 252.)
   OPINION OF THE COURT

Gabrielli, J.

The People appeal from an order of the Appellate Division, which affirmed a decision of Supreme Court dismissing the indictments against defendants. The sole question presented by the People’s appeal is whether the District Attorney’s legal instruction to the Grand Jury impaired the integrity of that body’s deliberations and thereby rendered the indictments "defective” within the meaning of CPL 210.20 (subd 1, par [c]; see CPL 210.35, subd 5).

The indictments charged defendants with having individually committed the crime of obscenity in the second degree (Penal Law, § 235.05). Under subdivision 1 of section 235.00 of the Penal Law, any material or performance may be found to be obscene if "the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex”. Attempting to fulfill his obligation to provide legal guidance to the Grand Jury (CPL 190.25, subd 6), the District Attorney instructed that body on the law of obscenity by reciting this statutory definition virtually verbatim. He neglected to advise the Grand Jury, however, that the material before it would have to be judged "obscene” from the viewpoint of the average person applying State-wide "contemporary community standards” (People v Heller, 33 NY2d 314, 322-323). When this omission became apparent as a result of defendants’ motion to inspect the Grand Jury minutes (see CPL 210.30), the trial court promptly dismissed the indictments as defective on the ground that the erroneous legal instruction had impaired the integrity of the Grand Jury (CPL 210.20, subd 1, par [c]; 210.35, subd 5). This determination was affirmed by the Appellate Division. We conclude, however, that the decisions below must be reversed.

We note at the outset that we are not persuaded by the People’s contention that the State-wide standard for obscenity articulated in People v Heller (33 NY2d 314, supra) should be modified. Although the United States Supreme Court has indicated that the issue of what constitutes obscenity may be determined with reference to local community standards (Jenkins v Georgia, 418 US 153, 157), we remain convinced that the rule established in Heller is the most effective approach to closing the door on censorship "by local authorities * * * who would [otherwise] be free to form their own notions as to what constitute^] patently offensive material” (People v Heller, supra, at p 322). For this reason, we decline the People’s invitation to reconsider Heller, and we reaffirm our view that the contemporary standards of communities throughout the State are the proper measure of what is "obscene” within the meaning of our Penal Law.

This conclusion, however, does not end the inquiry in the present case. While it is true that the legal instructions given to the Grand Jury were incomplete in light of Heller, it does not necessarily follow that the resulting indictments should have been dismissed as defective. 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 (see, e.g., People v Van Dusen, 56 Misc 2d 107; People v McAdoo, 45 Misc 2d 664, affd 51 Misc 2d 263, cert den 386 US 1031; People v Vosburg, 21 Misc 2d 372; see CPL 190.05, 190.65, subd 1). In the ordinary case, it may be said that the Grand Jury has properly carried out this function when it has issued an indictment upon evidence that is legally sufficient to establish that the accused committed a crime (CPL 190.65, subd 1). The Grand Jury is not, of course, charged • with the ultimate responsibility of determining the guilt or innocence of the accused (see, e.g., People v Van Dusen, supra; People v Vosburg, supra). That duty, in our system, resides with the petit jury, which has the obligation of assessing the evidence in light of the applicable legal rules and determining whether the People have proven the guilt of the accused beyond a reasonable doubt.

Given this functional difference between the two bodies, it would be unsound to measure the adequacy of the legal instructions given to the Grand Jury by the same standards that are utilized in assessing a trial court’s instructions to a petit jury. Indeed, the difference in the extent and quality of the legal instructions that must be given to the two bodies is reflected in the Criminal Procedure Law, which, on the one hand, directs the court or District Attorney to give legal instruction to the Grand Jury only "[wjhere necessary or appropriate” (CPL 190.25, subd 6), but, on the other hand, requires a Judge presiding over a trial before a petit jury to state in detail "the fundamental legal principles applicable to criminal cases in general” as well as "the material legal principles applicable to the particular case” and "the application of the law to the facts” (CPL 300.10, subd 2). In view of the divergent functions of the two bodies, we hold that a Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law. We deem it 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.

This lesser standard was clearly met in the present case. The District Attorney adequately informed the Grand Jurors of the essential elements of the crimes they were being asked to consider by reading the applicable provisions of the Penal Law, including the statutory definition of obscenity. While his failure to furnish complete instructions regarding the proper legal standard for assessing obscenity would have been fatal if a determination of guilt hinged upon the instruction, it cannot be said that the omission was so significant in the context of the Grand Jury’s deliberations as to prejudice the interests of the defendants and render the indictments legally defective. Hence, it was error for the trial court to dismiss the indictments on this ground alone.

We note that we do not intend to suggest by our holding in this case that inadequate or incorrect legal instructions to the Grand Jury would never constitute grounds for dismissing an indictment as defective under CPL 210.35 (subd 5). To the contrary, we recognize that there may be situations in which the instructions to the Grand Jury are so misleading that the indictment could not be permitted to stand even though it is supported by legally sufficient evidence (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 210.35, pp 384-3S5). It is well established that a citizen cannot be haled into court and tried for an infamous crime unless he has first been indicted by a Grand Jury which has had the opportunity to consider the evidence against him (NY Const, art I, § 6; see People v Iannone, 45 NY2d 589, 593; Matter of Simonson v Cahn, 27 NY2d 1, 4-5). Indeed, the Grand Jury historically has acted as a buffer between the State and its citizens, protecting the latter from unfounded and arbitrary accusations (see, e.g., Gerstein v Pugh, 420 US 103, 117, n 19; United States v Calandra, 414 US 338, 342-343; Matter of Keenan v Gigante, 47 NY2d 160, 167-168; People v Iannone, supra, at p 594). When the District Attorney’s instructions to the Grand Jury are so incomplete or misleading as to substantially undermine this essential function, it may fairly be said that the integrity of that body has been impaired. Under such circumstances, CPL 210.35 (subd 5) as well as our State constitutional guarantees might well require dismissal of the Grand Jury’s indictments. In contrast, where, as here, the District Attorney omits information which would be essential for the petit jury’s determination of guilt but which is not essential to the Grand Jury’s less exacting responsibility of determining whether a prima facie case exists, it is inappropriate to dismiss the indictments on the ground specified in CPL 210.35 (subd 5).

Accordingly, the order of the Appellate Division should be reversed, the indictments reinstated and the case remitted for further proceedings on the indictments.

Meyer, J.

(concurring). While I concur in the result I cannot accept the dictum in the majority’s analysis. Whether the standard to be applied is State-wide is not an issue necessary to be determined in this case, if at all, and for me it is reason enough to avoid doing so that though the statutory definition of "obscene” set forth in subdivision 1 of section 235.00 of the Penal Law was adopted after People v Heller (33 NY2d 314, cert den 418 US 944) was decided the Legislature did not include the word "statewide” in that definition. While that does not necessarily mean that "community” as used in the definition does not mean "state” or that the Legislature did not use "community” in order to leave exact definition to the courts, there is at least some suggestion of other possibilities in the omission when it is recalled that the 1974 revision was adopted by the Legislature in response to our statement in Heller (33 NY2d, at p 331) that "it is within the province of the Legislature to determine whether the less stringent test of obscenity laid down in that case [Miller v California, 413 US 15] should now become the ultimate formula to be applied in New York”, and that in approving the act which became chapter 989 of the Laws of 1974 Governor Wilson stated that it brought the obscenity provisions of the Penal Law "into conformity with the recent Supreme Court decision in the case of Miller v. California.” (NY Legis Ann, 1974, p 416.)

It is enough for decision of the present appeal to note that reading of the statutory definition to the Grand Jury will normally be sufficient unless it can be said that because of the complexity of the matter the failure to do more impaired the integrity of the indictment and created a possibility of prejudice to defendant (People v Rallo, 39 NY2d 217, affg 46 AD2d 518; People v Percy, 38 NY2d 806, affg 45 AD2d 284; People v Banner, 59 AD2d 621). Since, as the majority notes the function of the Grand Jury is to decide only whether a prima facie case has been made out, not guilt or innocence, and the standard is simply a means of testing the appeal of the material involved to prurient interest in sex, its indictment of defendant using a community standard cannot be said to prejudice him even if the ultimate determination is that for conviction the jury must be instructed to apply a State-wide standard. The more so is that true when one recalls that juries regularly apply the standard of the reasonable man without being told the limits of the community which that fictional person inhabits, and that what is here to be applied is the standard of the "average person, applying contemporary community standards”.

Chief Judge Cooke and Judges Jones and Fuchsberg concur with Judge Gabrielli; Judge Meyer concurs in a separate opinion in which Judges Jasen and Wachtler concur.

Order reversed, etc.

      . In the ordinary case, this standard may be met by reading to the Grand Jury from the appropriate sections of the Penal Law (see People v Lawson, 84 Misc 2d 24, 28; People v Dingle, 70 Misc 2d 840, 844).

      . The result might have been different here, for example, had the District Attorney provided the Grand Jury with erroneous and misleading instructions in response to a request from that body for clarification or amplification of the meaning of the phrase "contemporary community standards”.

      .  We note that, although the right to an indictment ordinarily cannot be waived (see Matter of Simonson v Cahn, 27 NY2d 1, 4), our State Constitution now provides for a limited exception to this rule. Under this constitutional provision, “a person held for the action of a grand jury upon a charge for [an infamous] offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” (NY Const, art I, § 6; see People v Iannone, 45 NY2d 589, 593, n 4).

       See, also, footnote 4 to Judge Wachtler’s dissent in People v Heller (33 NY2d 314, 341), reading: "Another reason why I think we should leave the rewriting of an obscenity statute to the Legislature is to allow it to define what community is encompassed by the term 'community standards’ in part (b) of the Miller formulation (413 U. S., at p. 25). The majority of our court today has defined community in terms of the entire State. I think that question should be decided by the Legislature after hearings have been held on the matter.”


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v James Calhoun, Appellant.
    Argued January 9, 1980;
    decided February 14, 1980

      POINTS OF COUNSEL

      Judith Preble and William E. Hellerstein for appellant.
    Appellant’s right to be free from unreasonable searches and seizures under the United States Constitution (4th, 14th Arndts) and the New York Constitution (art I, § 12) was violated by the warrantless, unconsented to search of his fire-damaged apartment at least six hours after the fire was extinguished, at a time when all danger of the fire’s recurrence had passed and the premises were being boarded shut. (Vale v Louisiana, 399 US 30; People v Hodge, 44 NY2d 553; Camara v Municipal Ct., 387 US 523; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, 396 US 840; Michigan v Tyler, 436 US 499; Mincey v Arizona, 437 US 385; McDonald v United States, 335 US 451; Matter of Kwok T., 43 NY2d 213; People v Mitchell, 39 NY2d 173; Chapman v United States, 365 US 610.)

      Eugene Gold, District Attorney (Julian L. Kalkstein of counsel), for respondent.
    The warrantless search of appellant’s apartment was reasonable. (Michigan v Tyler, 436 US 499; Root v Gauper, 438 F2d 361; People v Clements, 37 NY2d 675.)
   OPINION OF THE COURT

Fuchsberg, J.

In the circumstances of this case, we hold that the warrantless search of the defendant’s residential apartment by two fire marshals in the aftermath of a fire whose cause they were intent on discovering did not abuse the proscriptions of either the Fourth Amendment to the Federal Constitution or the comparable protection to be found in section 12 of article I of our State Constitution.

The question arises in the following context:

A jury has convicted defendant, James Calhoun, of arson in the third degree, reckless endangerment in the second degree and assault in the third degree. The charges all stem from an extensive early morning fire that heavily damaged a three-story building, the second floor of which he occupied as living quarters. Having initially been summoned to the scene of the conflagration shortly after 4:30 a.m., the New York City firemen who responded thought they had brought the fire under control by the time they departed the premises at 8:30 a.m. However, because the firefighters were unable to determine how the blaze had started, they immediately asked for the assistance of fire marshals, fire department personnel especially trained to the task of investigating fires of unknown origin. The need for this help was apparent before the original firemen left the scene.

As it happened, however, the marshals did not arrive until about four hours later. At that time, proceeding up what was left of the building’s common stairway, their attention, was arrested by significant burn marks at a point several steps below the second floor landing. The character of the marks strongly suggested that the fire, at least in part, had started at that point. The marshals further observed that the trail so etched had spread up to and over the second-story landing and through the entranceway of defendant’s then deserted apartment, the door to which had been burned away completely. Inspecting the apartment itself, the marshals came upon other areas evincing a pattern and intensity of charring which, in their expert judgment, were telltale traces of a liquid accelerant. Their investigation of the remainder of the structure, a path previously pursued by the firefighters, having eliminated other possible causes for the fire, photographs were then taken of the indicated points of origin.

Denying defendant’s motion to suppress the evidence gleaned from the fire marshals’ inspection, the Trial Judge rejected the argument that it was the product of an unreasonable and warrantless search and seizure separate and apart from that made by the firefighters and directed, in effect, to the unearthing of evidence of the commission of arson. In essence, the court was of the view that Calhoun had no reasonable expectation of privacy in the burned premises and that, in any event, on the facts here, the fire marshals’ entry was part and parcel of the earlier and permissible warrantless response to the fire (90 Misc 2d 88). On this appeal from the order of the Appellate Division which, without opinion, affirmed the judgment of conviction, defendant relies in the main on a renewal of his contention that the proof emanating from the fire marshals should have been excluded. Though we agree with the result arrived at by the courts below, we do so on an analysis considerably at variance with that employed at nisi prius.

We start by reference to the established proposition that the safeguards afforded by the Fourth Amendment and our State Constitution extend beyond searches motivated by reasonable suspicion of criminal behavior (Camara v Municipal Ct., 387 US 523, 530; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, 655). Especially pertinent here is the breadth of this constitutional concern for an individual’s interest in privacy (People v Hodge, 44 NY2d 553, 557), which also encompasses arbitrary invasion by government officials who function in the areas of public health and safety (see See v City of Seattle, 387 US 541; Marshall v Barlow’s, Inc., 436 US 307).

Nor is this treasured right forfeit simply because one’s home has been ravaged by fire. The classic statement that even a " 'ruined tenement’ ” may be secure against the sovereign (see Miller v United States, 357 US 301, 307) is literally applicable. For, people often continue to live and work in buildings that have sustained fire damage and, even when the ensuing destruction has made that impossible, remaining personal effects may very well invoke continued and respected expectations of privacy. To reinforce this protection, a warrantless intrusion by a government official is presumptively unreasonable, the burden of justifying it devolving upon the People (Vale v Louisiana, 399 US 30, 34; People v Hodge, supra, p 557).

Without challenging these postulates, the People nevertheless correctly press the point that an exception to this stringent standard is to be found in entries effected to extinguish an ongoing conflagration. Such entries, though almost sui generis because of man’s long-recognized dread of unfriendly and uncontrolled fires and the urgent need to snuff out forces that may feed their ruinous course, fall within the embrace of the so-called emergency exception to the warrant requirement. This doctrine sanctions warrantless searches and seizures in circumstances presenting immediate danger to life or property (see People v Mitchell, 39 NY2d 173; People v Hodge, supra), or, on the same general principle, threat of destruction or removal of contraband or other evidence of criminality (see People v Vaccaro, 39 NY2d 468; People v Farenga, 42 NY2d 1092; see, generally, Mascolo, Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buffalo L Rev 419, 426; Note, 43 Fordham L Rev 571, 581-584).

The obvious rationale for these departures is to be found in the pressures posed by fire or other exigencies which do not allow for the delay that the securing of a warrant would entail. Needless to say, recognition of the reality of such situations does not signal weakening of our constitutional resolve. Rather, it simply refuses to ignore the existence of reflexive reactions, and the fact that, in certain circumstances, even a considered decision may compel alacrity of response. So the law does not deny leeway to official action undertaken in an exigency. Nor does it subject public officials to a standard which, made stricter by hindsight, would uniformly preclude them from all courses of conduct but the least intrusive. Instead, it requires only that public officials act reasonably in light of the particular exigent circumstances— "reasonableness” being measured against the general constitutional injunction proscribing warrantless searches.

All this said, as defendant concedes, it would take well-nigh unforeseeable circumstances to raise any dispute over a fireman’s incursion to eradicate an existing fire (see, e.g., Steigler v Anderson, 496 F2d 793). The more difficult question, and the one to be faced in this case, is whether it was permissible for the subsequent search, made by the fire marshals at a time after the fire had died out, to have been essayed without a warrant. In this connection, it appears well accepted, given the insidious nature of an unwanted fire, that it is not to be cavalierly assumed that the immediate invasion of property to attack the flames of a raging fire is to be regarded as entirely separable from the sometimes more subtle follow-up whose goal is the investigation of its source. Moreover, that a fireman is capable of killing the flames until the last glow is gone does not certify to his competence to decide whether there still lurks a hidden danger — perchance a gas leak, maybe some electrical malfunction, perhaps any one of a host of sources of spontaneous or other combustion — that could quickly reignite the premises (see United States v Green, 474 F2d 1385, 1388). It cannot be gainsaid that an expert, be it one denominated fire marshal or otherwise, who within a reasonable time undertakes an examination in large part to ensure that the danger posed by a property-destructive or life-threatening fire is gone for good may be found to be performing an urgent fire-responsive function.

Moreover, even in the absence of a potential for reignition, because the products of combustion and other evidence of a fire’s cause so often will be fragile and likely to disappear — whether through exposure to the elements, shifts in a building’s already crumbled structure, or intentional or inadvertent human contact — fire marshals may permissibly undertake postfire entries in order to gather and preserve vital data for fire prevention while it is still available. No doubt it is with such considerations in mind that the Supreme Court has made clear that "officials” need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished (Michigan v Tyler, 436 US 499, 510).

Of course, in examining the record to determine whether there was support for findings that the arrival of the marshals to make their investigation was within a "reasonable time” after the fire had stopped burning, whether the marshals were fairly to be regarded as a wholly separate entity rather than but another arm of the agency which had put out the fire, and whether the marshals’ invasion of defendant’s privacy was motivated primarily by an intent to gather evidence of the commission of a crime so as to subject it to traditional warrant safeguards (La Fave, Search and Seizure: A Treatise on the Fourth Amendment, § 10.40), at this juncture we are confronted with affirmed findings of fact which we may not disturb unless, after giving the People the benefit of every favorable intendment, the determinations were erroneous as a matter of law.

Taking these issues in inverse order, we turn first to the motive for the search. While fire marshals in New York City do not respond to every fire as a matter of routine, there was proof that their task was to investigate all fires of undetermined origin rather than to conduct a search for evidence of arson. In this case, they were not told in advance that there was evidence of arson. In fact, when they arrived, they did not know the cause or where and what to look for. It was not until hours later that defendant’s earlier threats to the landlord were brought to their attention. While arson, conceivably, was a possible cause for the fire, a spectrum of other imaginable causes, both natural and accidental, remained theories to be tested by the marshals. Thus, had there been a finding that the visit to the premises was motivated instead primarily by an intent to gather support for an arson prosecution, the warrantless intrusion might well have exceeded the bounds of the emergency exception and trespassed on the constitutional guarantee (see People v Mitchell, supra, p 177; Michigan v Tyler, 436 US 499, 504, n 4, supra; People v Dajnowicz, 43 Mich App 465, 474-475). For, the invasion of privacy might then be transformed from one limited in scope to one which, because it was accusatory in nature, would have to yield to traditional warrant safeguards (La Fave, Search and Seizure: A Treatise on the Fourth Amendment, § 10.40). Suffice it to say, however, that nothing in the record here compelled a conclusion that the fire marshals undertook their examination as a pretext for a criminal search.

There is also a sufficient basis for the trial court’s finding that the marshals’ phase of the work, broadly viewed, was but another, though specialized, part of the over-all job of meeting the challenge of fire and that it was employed within a reasonable time after the fire appeared to have died out. Michigan v Tyler (supra) is especially revealing in that regard. The court there upheld a warrantless search conducted by marshals, as here, about four hours after the firefighters had done their part. True it is that there the delay was explained by the fact that earlier inspection by the marshals had been impeded by smoke and steam that still hovered over the premises after the firefighters had completed their appointed task. But, postfire persistence of such conditions is too common for a determination of reasonableness to have to depend on whether marshals choose to arrive as soon as a fire has been quelled and then wait, or fix their arrival for a time when the obscuring elements would have dissipated. In any event, it is revealing that the court did not require that the marshals have used the delaying hours to obtain a warrant.

Nor need it be critical that the marshals’ arrival occurs before the firefighters depart rather than after some reasonable lapse of time. The charade of such a formality does not control. Notably, in the instant case, the marshals were apparently called from the scene of a prior investigation. And the record reveals not the slightest indication of any willful delay (cf. People v Vaccaro, 39 NY2d 468, 473, supra). In short, the extent of the time lapse that occurred in this case and the circumstances that contributed to it were but factors to be considered in assessing the reasonableness of the marshals’ entry.

Accordingly, after matching the evidence against the affirmed findings taken as a whole, we cannot say that the conclusion that the search was reasonable was without support. It follows that the order of the Appellate Division should be affirmed.

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

Order affirmed.

      . The practical need for frequent follow-up by marshals in the urban area in which this fire took place is made especially clear by the fact that, in the last two years alone, nearly a quarter of a million fires occurred in New York City. In 1975, the year in which the fire in the present case occurred, the current average was exceeded, the number reaching 137,237. (Annual Statistics Reports of the Fire Department of the City of New York.)

      . The marshals were acting under the authority of section 488(2)-1.0 of the Administrative Code of the City of New York, which provides:
      "Purposes of investigations — The commissioner, the chief and deputy chief fire marshals, the assistant fire marshals, and such other employees of the department designated by the commissioner, shall investigate, examine and inquire into the following matters:
      "1. The origin, detail and management of fires in the city, particularly of supposed cases of arson, incendiarism, or fires due to criminal carelessness.”
      The ordinance, of course, must be Construed, if possible, so as not to contravene constitutional requirements. In that connection, we note that, though the obligation to investigate fires specifically includes those whose origins appear to be criminal in nature, the broad sweep of its general authorization, reasonably read, certainly would include cases in which the yet undiagnosed cause of a fire merely presents such a possibility.

      . Because the marshals’ participation within the "reasonable time” compass here is linked with the firefighting itself, we are not concerned with the interesting questions involving administrative warrants and their application to fire inspections which are not incidental to a recent fire (see Camara v Municipal Ct, 387 US 523, supra; See v City of Seattle, supra; see, generally, Comment, 14 Land & Water L Rev 207; Michigan v Tyler: The Arson Investigation — Its Dual Nature and Fourth Amendment Search Requirements, 1979 Detroit Coll L Rev 329, 336).


author: Gabrielli, J.

text:
    In the Matter of Eugene C. Olsson, Respondent, v Board of Higher Education of the City of New York et al., Appellants.
    Argued January 2, 1980;
    decided February 20, 1980

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Alexander J. Wulwick and Carolyn E. Demarest of counsel), for appellants.
    Questions of academic judgment and policy are solely within the competence of educators to decide and courts should refrain from exercising their powers of judicial review in the absence of a gross violation of public policy. Appellants should not be estopped from exercising their academic judgment upon the facts of this case. (Matter of Healy v Larsson, 35 NY2d 653; Board of Curators, Univ. of Mo. v Horowitz, 435 US 78; Epperson v Arkansas, 393 US 97; James v Board of Educ., 42 NY2d 357; Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111; Matter of Vetere v Allen, 15 NY2d 259, 382 US 825; Connelly v University of Vt. & State Agric. Coll., 244 F Supp 156; Matter of Lesser v Board of Educ., 18 AD2d 388; Matter of Sofair v Upstate Med. Center Coll. of Medicine, 54 AD2d 287, 44 NY2d 475; De Pina v Educational Testing Serv., 31 AD2d 744.)

      Eugene C. Olsson, respondent pro se.

    I. The courts may review a school decision. (Board of Curators, Univ. of Mo. v Horowitz, 435 US 78; James v Board of Educ., 42 NY2d 357; Matter of Strongin v Nyquist, 44 NY2d 943; Matter of Board of Educ. v Nyquist, 31 NY2d 468; Matter of Lesser v Board of Educ., 18 AD2d 388.) II. Appellants are estopped from claiming the criteria for passing the exam was other than what was told to the students and relied upon by petitioner. (Selzer v Baker, 295 NY 145; Matter of Blank v Board of Higher Educ., 51 Misc 2d 724; Matter of Healey v Larsson, 67 Misc 2d 374, 42 AD2d 1051, 35 NY2d 653.) III. Petitioner is entitled to the Master of Public Administration Degree as a matter of contractual right. (Goldstein v New York Univ., 76 App Div 80;
      Matter of Carr v St. John’s Univ., N. Y., 17 AD2d 632, 12 NY2d 802.)
   OPINION OF THE COURT

Gabrielli, J.

This case presents the novel questions of whether and under what circumstances a court may intervene in the decision of an educational institution to withhold a diploma from one of its students on academic grounds. Specifically, we are asked to determine whether an educational institution may be estopped from asserting that a student has not fulfilled the requirements for graduation where the student’s deficiency was caused in part by his reliance upon a professor’s misleading statement regarding the institution’s grading criteria. Although we find that the facts and circumstances presented in this case did not warrant the extreme remedy of requiring the institution to award a diploma to one whom it deemed unqualified, we nevertheless refrain from holding that the principles of equitable estoppel may never be used to avoid the harsh effects of an arbitrary academic determination.

The petitioner in this case, Eugene Olsson, was a candidate for a Master’s degree at the John Jay College of Criminal Justice, a branch of the City University of New York. Having completed the bulk of his studies with an "honors” average, Olsson elected to take a final "comprehensive” examination in lieu of submitting a Master’s thesis, as permitted by the school’s academic regulations. Since he was told that the examination would test his cumulative knowledge in the field of criminal justice, Olsson decided to enroll in a review course to refresh his memory of his past work in the program.

Toward the end of the semester, one of the professors who was conducting the review course undertook to describe to his class the criteria that would be used in the grading of the upcoming examination. Professor Kim apparently intended to inform his students that, in addition to attaining an over-all average score of 2.8 points on the examination, they would be required to score three out of a possible five points on each of four of the five examination questions answered. In the course of relating this information, however, Professor Kim misspoke, stating: "You must have at least three out of five questions” (emphasis supplied). This uncorrected misstatement, according to Olsson, left him and several of his classmates with the impression that they could achieve a passing grade on the examination by scoring at least three points on only three of the five questions. As a consequence, Olsson was unpleasantly surprised when he learned that, although his over-all average score exceeded 2.8, he had nevertheless failed the examination because he had received passing scores on only three rather than four of the five questions he had answered.

Believing that the outcome was unfair, Olsson petitioned the academic appeals committee of the college for a reconsideration of his grade. He thought himself aggrieved because he had budgeted his time during the examination in such a way as to maximize his chances of achieving a passing score on three of the five questions. Had he known that he would be required to perform acceptably on four questions, Olsson asserted, he would have allocated his efforts more evenly and might therefore have passed the examination. The academic appeals committee, however, declined to change Olsson’s test score to a "pass”, concluding that it would be improper to do so in view of the fact that he had failed the examination under the uniformly applied criteria. Nevertheless, in the interest of fairness, the committee offered to expunge the results of Olsson’s examination and permit Olsson to retake it without prejudice to his right to sit for the test a second time should he fail again.

Finding this offer to be unacceptable, Olsson commenced the instant article 78 proceeding in an effort to compel the college to award him a diploma on the strength of his existing examination score. Since he had relied on Professor Kim’s classroom statements in allocating his time during the examination and had "passed” the test under the criteria delineated in those statements, Olsson contended that the college should be estopped from applying the higher standard, which had resulted in his failing grade. Both the trial court and the Appellate Division accepted this argument and ordered the college to award Olsson a diploma in his chosen field nunc pro tunc. Both courts stressed that there existed no written regulations governing grading criteria at the time that Olsson took the examination, and both courts concluded that the college rather than the individual student should bear the ultimate responsibility for Professor Kim’s unfortunate "slip-of-the-tongue”. We disagree.

In reversing the determinations below, we are mindful that this case involves more than a simple balancing of equities among various competing commercial interests. While it is true that in the ordinary case, a principal must answer for the misstatements of his agent when the latter is clothed with a mantle of apparent authority (see, e.g., Phillips v West Rockaway Land Co., 226 NY 507), such hornbook rules cannot be applied mechanically where the "principal” is an educational institution and the result would be to override a determination concerning a student’s academic qualifications. Because such determinations rest in most cases upon the subjective professional judgment of trained educators, the courts have quite properly exercised the utmost restraint in applying traditional legal rules to disputes within the academic community (see, e.g., Board of Curators, Univ. of Mo. v Horowitz, 435 US 78; Matter of Sofair v State Univ. of N. Y. Upstate Med. Center Coll. of Medicine, 54 AD2d 287, revd on other grounds 44 NY2d 475; Matter of Bonwitt v Albany Med. Center School of Nursing, 77 Misc 2d 269; Balogun v Cornell Univ., 70 Misc 2d 474; cf. James v Board of Educ., 42 NY2d 357).

This judicial reluctance to intervene in controversies involving academic standards is founded upon sound considerations of public policy. When an educational institution issues a diploma to one of its students, it is, in effect, certifying to society that the student possesses all of the knowledge and skills that are required by his chosen discipline. In order for society to be able to have complete confidence in the credentials dispensed by academic institutions, however, it is essential that the decisions surrounding the issuance of these credentials be left to the sound judgment of the professional educators who monitor the progress of their students on a regular basis. Indeed, the value of these credentials from the point of view of society would be seriously undermined if the courts were to abandon their long-standing practice of restraint in this area and instead began to utilize traditional equitable estoppel principles as a basis for requiring institutions to confer diplomas upon those who have been deemed to be unqualified.

This is not, of course, to suggest that the decisions of educators are completely immune from judicial scrutiny. Consistent with the policy of ensuring that academic credentials truly reflect the knowledge and skills of the bearer, the courts have indicated that they will intervene if an institution exercises its discretion in an arbitrary or irrational fashion (e.g., Matter of Sofair v State Univ. of N. Y. Upstate Med. Center Coll. of Medicine, 54 AD2d, at p 290, supra). In addition, it has been suggested that there exists an "implied contract” between the institution and its students such that "if [the student] complies with the terms prescribed by the [institution], he will obtain the degree which he sought” (Matter of Carr v St. John’s Univ., N. Y., 17 AD2d 632, 633, affd 12 NY2d 802). The essence of the implied contract is that an academic institution must act in good faith in its dealings with its students.

In this case, John Jay College amply fulfilled its obligation to act in good faith when it offered Eugene Olsson the opportunity to retake his comprehensive examination. Certainly, the college was not obliged to confer a diploma upon Olsson before he demonstrated his competence in accordance with the institution’s academic standards. The mere circumstance that Olsson may have been misled by Professor Kim’s unfortunate remark cannot serve to enhance the student’s position in this regard. Despite Olsson’s speculative contention that he might have passed the examination had he not been misinformed about the grading criteria, the fact remains that neither the courts nor the college authorities have any way of knowing whether the outcome of the testing would have been different if Olsson had not "relied” upon Professor Kim’s misstatement. Indeed, the fact that 23 of the 35 students enrolled in Professor Kim’s review course managed to pass the examination despite the faculty member’s "slip-of-the-tongue” serves to demonstrate that there was no necessary connection between Olsson’s exposure to the "three out of five” comment and his failure to achieve a passing score. Under these circumstances, requiring the college to award Olsson a diploma on equitable estoppel grounds would be a disservice to society, since the credential would not represent the college’s considered judgment that Olsson possessed the requisite qualifications.

We hasten to add that our holding today should not be interpreted as an indication that estoppel will never lie when an educational institution seeks to withhold a diploma from one of its students on academic grounds. To be distinguished

from the present case are those situations in which a student has fulfilled all of the academic requirements for graduation, but has neglected some technical prerequisite in reliance upon the assurances of a faculty member. The facts in Matter of Blank v Board of Higher Educ. (51 Misc 2d 724) are illustrative in this regard. There, the student had elected to pursue the college’s "professional option plan” after consulting with his prelaw adviser at the college. Under the plan, a student who had completed at least three quarters of his studies at the college could become entitled to a baccalaureate degree if he completed one years’ full-time work in an approved law school. The only proviso was that the student’s course of study had to "constitute, in the opinion of the Dean of Faculty, an acceptable program for the AB degree”. Since he lacked four required courses at the time he was preparing to enter law school, the student approached the guidance officer of the college and the chairperson of the applicable academic department in an effort to work out an acceptable program. The student, who was planning to attend an out-of-town law school, was unequivocally advised that he would have to enroll in the required courses at the college, but was told that he could obtain the necessary credits without actually attending classes if the individual instructors agreed. Pursuant to this advice, the student in Blank took two of the required courses over the summer "in residence” and then made arrangements with college instructors to take the two remaining courses on a "correspondence” basis. Although he passed the final examinations in each of the last two courses with a grade of "B” and received full course credit from the individual instructors, the student in Blank was denied his diploma after the dean determined that he had failed to comply with the college’s "in residence” requirement. Under these circumstances, Special Term correctly held that the dean of the college should be estopped from asserting the "in residence” requirement as a ground for withholding the student’s diploma, since the requirement had, in effect, been waived by several faculty members, all of whom could be regarded agents of the dean.

The outstanding feature which differentiates Blank from the instant case is the unavoidable fact that in Blank the student unquestionably had fulfilled the academic requirements for the credential he sought. Unlike the student here, the student in Blank had demonstrated his competence in the subject matter to the satisfaction of his professors. Thus, there could be no public policy objection to Special Term’s decision to award a "diploma by estoppel” (accord Matter of Healy v Larsson, 67 Misc 2d 374, affd 42 AD2d 1051, affd 35 NY2d 653). Moreover, although the distinction is not dispositive, it cannot be overlooked that the student in Blank had relied upon a continuous series of deliberate and considered assurances from several faculty members, while Olsson, the student in this case, premised his estoppel claim upon a single inadvertent "slip-of-the-tongue” made by one professor during the course of a single presentation.

In summary, it must be stressed that the judicial awarding of an academic diploma is an extreme remedy which should be reserved for the most egregious of circumstances. In light of the serious policy considerations which militate against judicial intervention in academic disputes, the courts should shun the "diploma by estoppel” doctrine whenever there is some question as to whether the student seeking relief has actually demonstrated his competence in accordance with the standards devised by the appropriate school authorities. Additionally, the courts should be particularly cautious in applying the doctrine in cases such as this, where a less drastic remedy, such as retesting, may be employed without seriously disrupting the student’s academic or professional career.

For the foregoing reasons, the order of the Appellate Division should be reversed, without costs, and the petition should be dismissed.

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

Order reversed, etc.

      . In the ordinary case, a student was given two opportunities to pass the comprehensive examination. By expunging his first test score, the college, in effect, was wiping the record clean and giving Olsson two additional chances to pass.

      . It should be noted that, as a result of the controversy surrounding Olsson’s examination grade, the college has decided to publish written regulations in connection with the grading of the comprehensive examination.

      . John Jay College has conceded in its brief that its offer to permit Olsson to retake the examination remains open even at this late date. We are not unsympathetic to Olsson’s argument that this offer is a less than satisfactory remedy in view of the number of years that have passed since he prepared for the 1976 examination. We note, however, that the decision to forego the college’s offer to readminister the test at an earlier date, albeit delayed for several months, was entirely Olsson’s and, accordingly, the student cannot now be heard to say that his interests have been prejudiced by the passage of time.


text:
    The People of the State of New York, Respondent-Appellant, v Harry Berzups, Appellant-Respondent.
    Argued December 14,1979;
    decided February 20, 1980

      POINTS OF COUNSEL

      Denis Dillon, District Attorney (Anthony J. Girese, William C. Donnino and Judith R. Sternberg of counsel), for respondent-appellant.
    I. The crime of robbery in the first degree, the predicate felony of the felony murder charge, was not an inclusory concurrent count thereof. (People v Lucas, 95 Misc 2d 334; People v Nichols, 230 NY 221; People v Schermerhorn, 203 NY 57; People v Lytton, 257 NY 310; People v Louis, 1 NY2d 137; People v Davis, 46 NY2d 780; People v Shuman, 37 NY2d 302; People ex rel. Tanner v Vincent, 44 AD2d 170, 36 NY2d 773; People v Murray, 40 NY2d 327.) II. Guilt was overwhelmingly established by more than sufficient evidence. (People v Kibbe, 35 NY2d 407; People v Cicchetti, 44 NY2d 803; People v Dlugash, 41 NY2d 725; People v Horton, 18 NY2d 355, 19 NY2d 634, 387 US 934; People v Jackson, 18 NY2d 516; People v Gladman, 41 NY2d 123; People v Irby, 47 NY2d 894; People v La Belle, 18 NY2d 405; People v Stewart, 40 NY2d 692.) III. The joint trial of Berzups and Massurin was proper. (Bruton v United States, 391 US 123; People v Galloway, 24 NY2d 935; People v Stanbridge, 26 NY2d 1; People v Pincus, 25 NY2d 990; People v Safian, 59 AD2d 20, 46 NY2d 181; California v Green, 399 US 149; United States ex rel. Stan-

      bridge v Zelker, 514 F2d 45; People v Oldring, 42 AD2d 737; People v McNeil, 24 NY2d 550; People v Anthony, 24 NY2d 696, 396 US 1025.) IV. There was probable cause for the arrest of appellant; the physical evidence and his confession were properly admitted at trial. (United States v Di Stefano, 555 F2d 1094; United States v Jackson, 560 F2d 112; People v Logan, 39 Misc 2d 593; Cupp v Murphy, 412 US 291; United States v Edwards, 415 US 800; People v Perel, 34 NY2d 462; People v Anderson, 42 NY2d 35; People v Yarter, 50 AD2d 1019.) V. The trial court properly refused to charge any degree of assault as a lesser included offense of intentional murder. (People v Vidal, 26 NY2d 249; People v Katz, 209 NY 311; People v Brown, 203 NY 44; People v Granger, 187 NY 67; People v Finney, 33 NY2d 536; People v McDonald, 159 NY 309; People v Johnson, 39 NY2d 364; People v Acevedo, 40 NY2d 701; People v Graham, 44 NY2d 768.)

      Richard Simon for appellant-respondent.
    I. Defendant’s guilt was not proven beyond a reasonable doubt. (People v Cleague, 22 NY2d 363; People v Borrero, 26 NY2d 430; People v Lagana, 36 NY2d 71; People v Ryan, 41 NY2d 634; People v Benzinger, 36 NY2d 29; People v La Belle, 18 NY2d 405; People v Dlugash, 41 NY2d 725; People v Brengard, 265 NY 100; People v Cicchetti, 44 NY2d 803; People v Stewart, 40 NY2d 692.) II. Defendant was deprived of his constitutional right of confrontation by the court’s denial of his pretrial motion for a severance. (Bruton v United States, 391 US 123; Roberts v Russell, 392 US 293; People v Baker, 23 NY2d 307; People v Boone, 22 NY2d 476; People v Cardona, 56 AD2d 759; People v Riservato, 51 AD2d 561; People v Myles Corp., 53 AD2d 872; People v Schlicteroll, 59 AD2d 545; People v Cavanaugh, 48 AD2d 949; People v Papa, 47 AD2d 902; People v Cassisa, 34 AD2d 579.) III. The rejection of defendant’s motion for severance deprived defendant of his right to a fair trial. (People v Payne, 35 NY2d 22; People v Fisher, 249 NY 419; People v Mirenda, 23 NY2d 439; People v Galbo, 218 NY 283; People v Pollack, 21 NY2d 206; People v Rossi, 270 App Div 624; People v Synder, 246 NY 491; People v La Belle, 18 NY2d 405; People v Dlugash, 41 NY2d 725; People v White, 46 AD2d 814.) IV. The court erred in refusing defendant’s request to charge the lesser included offense of "assault” and in failing to obey the statutory mandate requiring a determination thereupon prior to the parties’ summations. (People v Stanfield, 36 NY2d 467; People v Johnson, 45 NY2d 546;
      People v Discala, 45 NY2d 38; People v Henderson, 41 NY2d 233; People v Tai, 39 NY2d 894; People v Johnson, 39 NY2d 364; People v Hayes, 35 NY2d 907; People v Cionek, 35 NY2d 924; People v Usher, 34 NY2d 600; People v Battle, 22 NY2d 323; People v Asan, 22 NY2d 526.) V. The evidence of defendant’s admissions, defendant’s pants and shoes, and the residue under his fingernails should have been suppressed as taken in violation of his constitutional rights. (People v Butterly, 25 NY2d 159; Orozco v Texas, 394 US 324; Brown v Illinois, 422 US 590; Davis v Mississippi, 394 US 721; People v Earl, 40 NY2d 941; People v Cantor, 36 NY2d 106; Henry v United States, 361 US 98; Draper v United States, 358 US 307; Beck v Ohio, 379 US 89; People v Allende, 39 NY2d 474.) VI. The court below correctly modified the judgment of conviction by dismissing the predicate felony of robbery in the first degree as an inclusory concurrent count of the felony murder conviction. (People v Lee, 39 NY2d 388; People v Reid, 58 AD2d 611; People v Barnes, 60 AD2d 654; People v De Gata, 64 AD2d 929; People v Mitchell, 64 AD2d 119; People v MacDonald, 61 AD2d 1081; People v Grier, 37 NY2d 847; People v Hayes, 35 NY2d 907; People v Stanfield, 36 NY2d 467; People v Johnson, 39 NY2d 364.)
   OPINION OF THE COURT

Fuchsberg, J.

During a holdup at a drugstore in West Hempstead, Long Island, an elderly pharmacist, then on duty alone, was brutally attacked and killed. It is not disputed that the appellant, Harry Berzups, and his codefendant, Michael Massurin, acted in concert to commit the robbery of which the other crimes were the denouement. Tried together, they were each convicted of felony murder (Penal Law, § 125.25, subd 3), intentional murder (Penal Law, § 125.25, subd 1), robbery in the first degree (Penal Law, § 160.15), petit larceny (Penal Law, § 155.25), and possession of a dangerous weapon (Penal Law, § 265.01). In due course, they received concurrent sentences of imprisonment of 25 years to life on each murder count, zero to 25 years on the charge for robbery and one year each on the larceny and weapon charges.

Subsequently, the Appellate Division, while affirming the defendants’ convictions of all other crimes, reversed the robbery conviction as to each defendant on the rationale that, as the predicate for the felony murder conviction, it necessarily was a lesser inclusory count of that crime.

On this appeal by Berzups alone, a primary contention is that the consequence of the trial court’s rejection of his pretrial motion for a severance was to expose to the jury the inculpatory extrajudicial statements by Massurin, which, because the latter did not take the stand and therefore could not be cross-examined, deprived Berzups of his constitutional right to confrontation. It is also argued that it was error to deny Berzups’ motion to suppress, as the products of unlawful arrest and warrantless seizure, his own oral admissions, his bloodstained shoes and trousers and blood scrapings the police had taken from under his fingernails. Among other things, he takes the position too that the trial court should have granted his request that assault be charged as a lesser included offense of intentional murder. In addition to our being called upon to pass on these and certain subsidiary questions, the prosecution, by way of cross appeal, insists that, though the robbery served as the predicate for the felony murder charge, the conviction on that score also enjoyed a separate, self-standing status of its own and therefore should not have suffered a reversal. On the analysis which follows, we conclude that each of these propositions must be decided against the defendant.

The facts on which these issues rest are as simple as they are gruesome. Whatever seeming complexity there is arises out of the shifting stories by which each of the perpetrators, though ultimately conceding a crucial role for himself, would place the onus for dominance in their criminal undertaking on the other.

The relevant details start with the murder victim, whose body was discovered perforated by knife wounds, his jaw broken, his eye socket crushed, his skull shattered. It was evident that blunt forces in the form of a series of kicks and hammering with gallon-sized pharmaceutical glass jugs, the remnants of which were shattered about his body, had delivered violent blows to his head.

After removing the victim’s body to the hospital, an order slip the police found at the store led them to the defendant Massurin, who initially told the officers that he and Berzups had entered the store and forced the druggist into the rear at knifepoint. However, on further questioning, he soon changed his tale to claim that Berzups had suggested the robbery and that, though he and Berzups had entered the store, it was the latter who displayed a knife and forced the murdered man into a back room from whence Massurin heard sounds of scuffling and then saw Berzups stab the pharmacist. In the final session of what was in effect a telescoped confession, Massurin stated he had thrown several jugs at the man on returning to the store briefly before he and Berzups departed.

Massurin’s information put the police on the trail of Berzups, whom they took into custody to police headquarters where, upon being advised of his rights under Miranda v Arizona (384 US 436), he insisted he knew nothing of the crime. At this time, a detective noticed that Berzups’ white shoes were stained in a reddish color on one heel and that he had a cut on one of his fingers, whereupon the police took possession of his shoes and had their scientific investigation bureau scrape the residue from under his fingernails. Shortly afterward, Berzups decided to make a fuller disclosure in which he related that it was Massurin who had proposed that they rob the drugstore and that, upon going there for that purpose, Berzups stood at the store entrance while Massurin first pushed the pharmacist into the back room and then began "throwing bottles into something”, later also telling Berzups that he had thrown a jug at the old man to prevent him from identifying his assailants. But when asked to sign a written statement, Berzups refused to do so and asked to speak to a lawyer, a request which the suppression Judge was to find was respected by cessation of further interrogation. However, pursuant to a warrant, a search of Berzups’ room turned up a pair of trousers with smatterings of blood on the cuff area of each leg and a quantity of drugs which proved to be of the same type stolen from the drugstore on the day of the murder. Later, police investigation led them to a bloodstained leather jacket, which one Leonard Holl had purchased from Berzups after the robbery.

At trial, Holl and Berzups added some further details. Holl testified that Berzups had confided in him that, on Massurin’s instructions, Berzups had tied up the druggist while Massurin ransacked the store and that, when the victim began to struggle, Massurin yelled, "Knock him out, knock him out”, in response to which Berzups kicked the elderly man in the jaw. According to what Berzups told his friend Holl, it was then that Massurin suddenly pulled out a knife and repeatedly stabbed the druggist. Berzups, for his part, told the jury that it was he who announced "this is a stickup”, forced the pharmacist into the back room, tied his hands behind his back and, explaining that he had been influenced to do so by Massurin, worked himself into a "paranoid” frenzy in the course of which he kicked the floored victim in the jaw.

These facts in mind, we first note that this court has for some time made clear that the right of an accused to be confronted by the witnesses against him (US Const, 6th Amdt; NY Const, art I, §6) is not violated when one of several defendants has himself made a full and voluntary confession which is "almost identical” to the confessions of his implicated codefendants (People v McNeil, 24 NY2d 550, 552; see Parker v Randolph, 442 US 62).

As had the Supreme Court in Bruton v United States (391 US 123), we recognized that it is often not enough for the trial court to administer cautionary instructions that a jury is not to consider incriminating statements as evidence of guilt of anyone but the one who utters them. For, the admission of an extrajudicial confession of a defendant who, if he does not take the stand, remains beyond the scrutiny of cross-examination, deprives the codefendant who is implicated in that confession of his right to confrontation (Bruton v United States, supra, at pp 127-128, 135-136). But, while sensitive to the devastating potential of such prejudice, we have been unanimous in our realization that a codefendant’s confession need not violate the spirit of the Bruton rule when the implicated defendant himself has made a confession close enough to the one offered against him to make the probability of prejudice so "negligible” that in the end "the result would need to be the same” (People v Safian, 46 NY2d 181, 188 [majority opn], 194 [dissenting opn citing People v Fisher, 249 NY 419, 426]). The justification for this exception is that separate confessions, without being mirror images of one another, may yet be so duplicative in their description of the crucial facts that the one of the nontestifying codefendant may be of no measurable consequence in the face of the overwhelming and largely uncontroverted evidence contained in the interlocking confession of the defendant himself (Brown v United States, 411 US 223; Schneble v Florida, 405 US 427; Chapman v California, 386 US 18).

In this perspective, a synthesis of Massurin’s and Berzups’ confessions makes for interesting comparison. Thus, Berzups’ initial story to the police was that Massurin suggested the robbery and Massurin, in turn, told the police that Berzups was its initiator. Critically, however, each made it clear that the criminal enterprise was jointly undertaken and neither suggested he had not entered upon it willingly and knowingly. Moreover, there was no denial that they divided the proceeds of the crime. Furthermore, Berzups admitted struggling with the pharmacist, hitting him and then, in the "paranoid” rage, stomping on the face and head of his victim to a point where the appellant’s hands, shoes and trousers were bloodied. For himself, Massurin admitted hurling the heavy gallon jugs. In sum, there was overlapping as to the willing participation in the robbery, the division of its proceeds and, mainly in each other’s presence, the joint striking of the victim in some form. Essentially, only Massurin’s claim that Berzups had used the knife on the pharmacist is unilateral, but in view of the uncontradicted medical testimony that the death had been produced by the violent conduct in its totality, with the lacerations least likely to have been fatal, hardly any legal significance would attach to the one who rendered the coup de grace. To paraphrase the language of Hall v Wolff (539 F2d 1146, 1148), "As to who used [the knife, the bottles or his feet], such fact is of no material consequence in this context”, since, by any objective measure, there was no "reasonable possibility that * * * [it] contributed to the conviction” (Schneble v Florida, 405 US 427, 432, supra).

We add that, in arriving at this conclusion, we place no reliance on the fact that Massurin earlier had taken the stand at the pretrial suppression hearing. Guilt and innocence were not then directly at stake. Moreover, but for the fact that the Massurin statements were interlocking and harmless, the narrower compass of such a preliminary hearing and the restrictions on the admissibility at trial of the testimony given by a defendant at that stage of a case (see People v Huntley, 46 Misc 2d 209, affd 27 AD2d 904, affd 21 NY2d 659; Richardson, Evidence [10th ed — Prince], § 550, p 553) would not necessarily have assured Berzups of a full-blown opportunity to exercise his privilege of confrontation. To the extent that People v Stanbridge (26 NY2d 1) is to the contrary, it is overruled.

Turning then to Berzups’ own postarrest confession and the seizure of his fingernail scrapings and bloodstained shoes and clothing, appellant’s claim that each should have been suppressed does not survive scrutiny. Probable cause for the arrest is readily found in Massurin’s implication of Berzups, his ability to lead the police to him, and his accurate description of him (CPL 140.10, subd 1, par [b]). The warrant produced the trousers. Holl voluntarily surrendered the jacket and, as to the fingernail scrapings and the bloodspattering on the shoes, these were certainly subject to the exigency of easy eradication even while Berzups was in custody for the brutal and bloody murder (Cupp v Murphy, 412 US 291, 295-296; see People v Mitchell, 39 NY2d 173; People v Perel, 34 NY2d 462).

The assertion that assault should have been submitted as a lesser included offense of intentional murder is equally without merit. The rejection by the jury of the crimes of manslaughter in the first and second degree, which require culpable mental states essentially the same as that relevant for the crime of assault, coupled with the verdict on intentional murder, necessarily indicated that the jury had wholly discredited the defense theory that Berzups had acted without an intent to kill (see People v Finney, 33 NY2d 536, 537).

Addressing now the issue presented upon the People’s cross appeal, we hold that the underlying felony of the felony murder charge was not a lesser included offense that merged in the conviction for which it was the predicate. Although an extremely literal reading of the statutes defining lesser included offenses (see CPL 300.40, subd 3; 300.50, subd 1) might suggest that felony murder be treated as nothing more than a felony with certain aggravating factors, namely the killing of a nonparticipant, the two crimes are "substantively and genetically entirely separate and disconnected offenses” (People v Nichols, 230 NY 221, 226). In contrast to the usual lesser included offense situation, in felony murder the underlying felony is not so much an element of the crime but instead functions as a replacement for the mens rea or intent necessary for common-law murder. This view accords with the historical development of the felony murder doctrine and the legislative policy reflected in its current statutory descendant, both of which underscore the fact that the corpus of the crime is the killing of another.

Manifesting this analysis is our recent decision in People v Davis (46 NY2d 780), which held the corroboration requirement imposed by CPL 60.50 inapplicable to the underlying felony of robbery in a felony murder conviction (see People v Murray, 40 NY2d 327). Analogous, too, is People v Perez (45 NY2d 204), where, in finding that a conviction for robbery in the first degree, though committed while the defendant was armed with and threatening to use a knife, did not render a conviction for criminal possession of the knife a lesser inclusory concurrent count, we took the occasion to point out that "[b]ecause of the serious danger to the public posed by individuals who possess weapons * * * as a matter of policy, the Legislature could not have intended that a weapons possession charge * * * merge with the greater crime of robbery” (45 NY2d, at p 210). So also with an underlying felony of a felony murder charge.

For all these reasons, the order appealed from should be modified by restoring the conviction for robbery, the case should be remitted to the Appellate Division for review of the facts relating to the conviction (CPL 470.40, subd 2, par [b]) and, as so modified, the order should be affirmed.

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

Order modified and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein and, as modified, affirmed.

      . Massurin’s conviction was affirmed by the Appellate Division (People v Massurin, 56 AD2d 937) and leave to appeal to this court was denied (42 NY2d 829).

      . Having considered the other contentions raised by the appellant, we find them equally unpersuasive.