author: Simons, J.

text:
    Albert E. Kreutter, Appellant, v McFadden Oil Corp. et al., Defendants, and Harmony Drilling Co., Inc., et al., Respondents.
    Argued February 8, 1988;
    decided March 29, 1988

      POINTS OF COUNSEL

      F. James Kane, Jr., and William C. Rieth for appellant.
    I. The court below erred in dismissing as against DownmanHarmony for lack of personal jurisdiction. (McGowan v Smith, 52 NY2d 268; Frummer v Hilton Hotels Intl., 19 NY2d 533, 389 US 923; ABKCO Indus. v Lennon, 52 AD2d 435; Laufer v Ostrow, 55 NY2d 305; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, cert denied sub nom. Estwing Mfg. Co. v Singer, 382 US 905; Parke-Bernet Galleries v Franklyn, 26 NY2d 13; Lupton Assocs. v Northeast Plastics, 105 AD2d 3; PPS, Inc. v Jewelry Sales Representatives, 392 F Supp 375; Med-Span Shipping Servs. v Jerry Jones Mack, 442 F Supp 904; FSI Group v First Fed. Sav. & Loan Assn., 502 F Supp 356.) II. Downman should not be shielded from New York’s long-arm jurisdiction. (Laufer v Ostrow, 55 NY2d 305; Marine Midland Bank v Miller, 664 F2d 899; Sheldon v Kimberly-Clark Corp., 105 AD2d 273; Soltex Polymer Corp. v Fortex Indus., 590 F Supp 1453; Hasbro Bradley, Inc. v Coopers & Lybrand, 121 AD2d 870; Escude Cruz v Ortho Pharmaceutical Corp., 619 F2d 902.)

      Philip B. Abramowitz and John A. Collins for respondents.
    I. Plaintiff has not proved that respondents committed any act in this State, personally or through an agent, giving rise to plaintiffs causes of action. (Lamarr v Klein, 35 AD2d 248, 30 NY2d 757; Hoffritz For Cutlery v Amajac, Ltd., 763 F2d 55; Johnson v City of Newburgh, 46 AD2d 663; Peterson v Spartan Indus., 33 NY2d 463; Volkswagenwerk AG. v Beech Aircraft Corp., 751 F2d 117; East N. Y. Sav. Bank v Republic Realty Mtge. Corp., 61 AD2d 1001; Cato Show Print. Co. v Lee, 84 AD2d 947; Lupton Assocs. v Northeast Plastics, 105 AD2d 3; Teachers Ins. & Annuity Assn. v Butler, 592 F Supp 1097; Marx & Co. v Fuji Seiko Co., 453 F Supp 385.) II. If the court determines Downman did transact business in New York on behalf of a corporation, this case presents an appropriate setting for application of the "fiduciary shield” doctrine. (Laufer v Ostrow, 55 NY2d 305; Marine Midland Bank v Miller, 664 F2d 899; CPC Intl. v McKesson Corp., 70 NY2d 268; Calder v Jones, 465 US 783; Fantis Foods v Standard Importing Co., 49 NY2d 317; Columbia Briargate Co. v First Natl. Bank, 713 F2d 1052, cert denied sub nom. Pearson v Columbia Briargate Co., 465 US 1007; Laurenzano v Goldman, 96 AD2d 852; Kossoff v Samsung Co., 123 Misc 2d 177; Brady v Ottaway Newspapers, 63 NY2d 1031.)
   OPINION OF THE COURT

Simons, J.

Plaintiff, a resident of Hamburg, New York, sought to invest in a Texas oil venture and for that purpose he delivered $70,000 to defendant Brian McFadden and Company, Inc., a Texas corporation which markets oil investments through its office in New York City. After various transfers involving defendants McFadden Oil Corporation and Harmony Drilling Company, Inc., both Texas corporations, and defendant Eugene Burch Downman, Jr., a Texas resident, McFadden Company eventually paid the balance of plaintiffs funds, after commissions, to defendant Harmony, supposedly to buy an oil rig for plaintiff which was to be leased back to Harmony. Plaintiff received nothing for his money, not even confirmation of its delivery, and believing himself cheated he instituted this action to recover his $70,000 together with incidental and punitive damages. Plaintiffs complaint alleges causes of action in fraud, conversion, breach of contract and related claims. He seeks to acquire jurisdiction over the Texas defendants pursuant to CPLR 302 (a) (1). That subdivision provides that "a court may exercise personal jurisdiction over any non-domiciliary * * * who in person or through an agent * * * transacts any business within the state”.

The Texas defendants moved to dismiss the complaint for want of jurisdiction and Supreme Court denied their motions after a hearing. The Appellate Division modified, sustaining jurisdiction over McFadden Oil but dismissing the actions against defendants Downman and Harmony. It held Downman was not subject to jurisdiction because he was acting on behalf of McFadden Oil in the transaction and, therefore, was protected by the fiduciary shield doctrine. It dismissed the action against defendant Harmony because it found plaintiff failed to establish Harmony had sufficient contacts with New York. We granted plaintiff leave to appeal so that we could review the jurisdictional questions presented and we now reverse. Plaintiff established that Downman and Harmony transacted business in this State through an agent, McFadden Company, and that his cause of action arose from that transaction. We hold further that the fiduciary shield doctrine cannot be invoked to insulate defendant Downman from personal jurisdiction. Accordingly, the motion to dismiss should be denied as to both defendants.

I

In 1972, Downman, Brian McFadden and their counsel, Norman Jones, negotiated an arrangement whereby McFadden would procure funds for investment in Downman’s Texas oil producing operations. They formed two corporations for the purpose: defendant Brian M. McFadden and Company, Inc., which would market the investment opportunities and defendant McFadden Oil Corp., which would acquire and manage the Texas oil properties. McFadden Company was given the right of first refusal to market all McFadden Oil’s opportunities but if it chose not to exercise its right for a specific project, McFadden Oil was free to finance that endeavor on its own or to offer the investment opportunity to another interested party. More than 50% of the oil company’s opportunities were sold to McFadden Company, however, and in such cases, title in the opportunity and entitlement to the net profits from the venture vested with McFadden Company. It derived the capital to purchase these opportunities by selling participation shares to investors, who, in turn, received interests in particular ventures proportionate to their investment. The joint venture agreement between McFadden Company and McFadden Oil provided that when McFadden Company sold shares in McFadden Oil’s ventures it was to retain a 22% commission from the investor’s contribution and forward the remaining 78% to McFadden Oil. As each venture progressed, McFadden Oil issued dividend checks to the investors holding participation shares, as directed by McFadden Company, and also issued a newsletter to them reviewing the status of their investment. From 1975 to 1982, McFadden Company allegedly sold over $5,000,000 in participating interests in McFadden Oil operations.

Although both McFadden Company and McFadden Oil were incorporated in Texas, McFadden Company established its principal office in New York and is licensed to do business here. McFadden Oil listed McFadden Company’s New York office as its own New York address, and McFadden Company listed McFadden Oil’s Texas office as its Texas address. At the time of incorporation, McFadden Company and McFadden Oil shared the same officers and directors, but the corporations have always had different shareholders. At the time of these transactions, Downman had no office or ownership in McFadden Company but he exercised management control of McFadden Oil and he had a direct ownership interest in it through personally held shares and also an indirect ownership interest in it through another company he owned in part which held McFadden Oil shares. Defendant Harmony Drilling Co., Inc., was incorporated in Texas in 1977 and it is owned exclusively by Downman, his wife and his infant daughter.

Over the years, plaintiff invested $145,000 in participation shares marketed by McFadden Company. He had twice met Downman in Texas, once to discuss this transaction, but he made all his investments through McFadden Company. In 1977, plaintiff decided to invest additional moneys. Unlike prior transactions, however, this investment did not involve the acquisition of participation shares. Instead, defendants proposed a financing device they apparently had not used before. Plaintiff was to purchase an oil rig from McFadden Oil and then lease the equipment back to it, or so he believed. Plaintiff tendered $70,000 for the purchase to McFadden Company’s Buffalo area representative, defendant Mumbach. Mumbach deducted a $6,000 commission and then sent the balance of $64,000 to defendant McFadden Company. Although the sale of participation shares — the type of transaction covered by the joint venture agreement between McFadden Oil and McFadden Company — was not involved, McFadden Company kept 22% of the $64,000 and sent a check for the remaining $49,990 to McFadden Oil to purchase the oil rig. McFadden Oil did not own the rig, however; it was owned by Harmony. Accordingly, someone in the office of McFadden Oil, falsely stating that Harmony was a subsidiary of McFadden Oil, directed McFadden Company to issue a new instrument payable to Harmony. McFadden Oil either destroyed or returned the original check naming it payee and McFadden Company issued a new check payable to Harmony.

Although the evidence did not directly establish who instructed McFadden Company to issue a new check, the trial court drew the inference that it was Downman because he knew of plaintiff’s investment in the oil rig and he was in constant communication with McFadden Company at the time it was being processed. Indeed, Downman acknowledged his involvement with the leasing of the rig and the many problems he was experiencing with the arrangement in memoranda sent to Brian McFadden after the check was sent to Harmony, memoranda which indicated that Downman was acting on behalf of Harmony, explained Harmony’s inability to pay the amounts due under the leaseback, and confirmed to Brian McFadden that McFadden Company’s marketing of the rig had been on Harmony’s behalf.

II

Defendant Downman argues that jurisdiction cannot be acquired over him because he did not personally transact any business in New York State and jurisdiction cannot be predicated on his activities as the corporate agent of either McFadden Oil or Harmony. Jurisdiction over him cannot be predicated on anything he did for McFadden Oil, he maintains, because although it transacted business in New York, plaintiff's claim did not arise out of that business but out of a leaseback investment with Harmony Drilling Company. Jurisdiction cannot be acquired over him because of his activities on behalf of Harmony, he maintains, because Harmony did not transact any business in this State. Downman contends, further, that even if McFadden Company’s activities can toe attributed to McFadden Oil or Harmony and support a finding that they transacted business in New York through an agent, he is insulated from jurisdiction under the fiduciary shield doctrine because he was not acting in his individual capacity when participating in the leaseback transaction but on behalf of a corporation.

Constitutional due process requires that a court have a jurisdictional basis to exercise its powers over a party. Customarily this basis is supplied by the party’s presence within the court’s geographical jurisdiction. With the growth of national markets for commercial trade and technological advances in communication and travel systems, however, an enormous volume of business may be transacted within a State without a party ever entering it. Recognizing this, the Supreme Court has expanded the permissible powers of States to obtain personal jurisdiction over nondomiciliaries. So long as a party avails itself of the benefits of the forum, hits sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction even if not "present” in that State (see, McGee v International Life Ins. Co., 355 US 220, 222-223; see also, Burger King Corp. v Rudzewicz, 471 US 462; World-Wide Volkswagen Corp. v Woodson, 444 US 286, 292; International Shoe Co. v Washington, 326 US 310). Specifically, in the International Shoe case the court held that "the privilege of conducting activities within a state * * * may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires [a party] to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue” (id., at 319 [emphasis added]).

New York’s long-arm statute, CPLR 302, was enacted in response to those decisions. CPLR 302 (a) (1), the provision in issue on this appeal, authorizes the court to exercise jurisdiction over nondomiciliaries for tort and contract claims arising from a defendant’s transaction of business in this State. It is a "single act statute” and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted (see, Reiner & Co. v Schwartz, 41 NY2d 648, 651-652; Parke-Bernet Galleries v Franklyn, 26 NY2d 13, 16-17; cf., Talbot v Johnson Newspaper Corp., 71 NY2d 827; and McGowan v Smith, 52 NY2d 268, 272).

In this case, plaintiff did not deal directly with McFadden Oil, Harmony or Downman. He dealt with McFadden Company in New York, and the question is whether McFadden Company was acting as the agent of the Texas defendants so that its actions are attributable to them and support New York’s assertion of jurisdiction over them. Plaintiff need not establish a formal agency relationship between defendants and McFadden Company (see, Parke-Bernet Galleries v Franklyn, supra, at 19; Elman v Belson, 32 AD2d 422, 426). He need only convince the court that McFadden Company engaged in purposeful activities in this State in relation to his transaction for the benefit of and with the knowledge and consent of the Texas defendants and that they exercised some control over McFadden Company in the matter (see, Lupton Assocs. v Northeast Plastics, 105 AD2d 3, 7; Cato Show Print. Co. v Lee, 84 AD2d 947, 949, appeal dismissed 56 NY2d 953; East N. Y. Sav. Bank v Republic Realty Mtge. Corp., 61 AD2d 1001, 1002; CutCo Indus. v Naughton, 806 F2d 361, 366).

A

Because Downman relies primarily on the "fiduciary shield doctrine” and the Appellate Division held it was available to defeat jurisdiction over him, we address it first. That doctrine provides that an individual should not be subject to jurisdiction if his dealings in the forum State were solely in a corporate capacity. It is based upon the notion that it is unfair to subject a corporate employee personally to suit in a foreign jurisdiction when his only contacts with that jurisdiction have been undertaken on behalf of his corporate employer (see, Marine Midland Bank v Miller, 664 F2d 899, 902). In CPC Intl. v McKesson Corp. (70 NY2d 268, 287), the only case in which we have considered the doctrine, plaintiff sued corporate officers for committing a tort in this State and relied on CPLR 302 (a) (2) to obtain jurisdiction over them. Although we recognized that fiduciary shield had been applied by other courts interpreting New York law, we refused to invoke it to insulate corporate agents from long-arm jurisdiction. In CPC we left open the question whether the doctrine applies to other provisions of the long-arm statute. For the reasons which follow we conclude that it does not.

The phrase "fiduciary shield doctrine” was first used by the United States Court of Appeals in United States v Montreal Trust Co. (358 F2d 239, cert denied 384 US 919), a diversity case in which the Second Circuit applied New York’s jurisdictional rules. In doing so the court construed our long-arm statute to require the application of the fiduciary shield doctrine based upon its reading of Boas & Assocs. v Vernier (22 AD2d 561). In Boas, however, plaintiff was suing on a contract and the Appellate Division merely found that, as a matter of substantive law, no claim could be asserted against an individual nonresident defendant whose only contact with New York was his execution of a contract here on behalf of his corporate employer. That was so, the Boas court noted, because one who executes a contract on behalf of a corporation without also signing it in his individual capacity is not personally obligated under the agreement (id., at 563, citing Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1; Salzman Sign Co. v Beck, 10 NY2d 63). The Boas court did not address whether the defendant was amenable to jurisdiction in the New York courts and thus it provides no basis for development of the jurisdictional doctrine the Second Circuit attributed to it. Some courts have also found a suggestion in Yardis Corp. v Cirami (76 Misc 2d 793) that the fiduciary shield doctrine had been adopted in this State. Yardis did not involve interpretation of New York’s long-arm statute, however; it rested on constitutional principles.

The Boas and Yardis decisions appear to supply the only basis for Federal court determinations that the fiduciary shield doctrine has been accepted in New York but, remarkably, application of the doctrine has proliferated and it has been accepted by several Federal courts and by some Departments of the Appellate Division (see, CutCo Indus. v Naughton, 806 F2d 361, 367, supra; Sheldon v Kimberly-Clark Corp., 105 AD2d 273 [2d Dept], appeal dismissed 65 NY2d 691; but see, Hasbro Bradley, Inc. v Coopers & Lybrand, 121 AD2d 870 [1st Dept] [rejecting the rule]; Laurenzano v Goldman, 96 AD2d 852 [2d Dept] [refusing to apply doctrine]; and see generally, 1 Weinstein-Korn-Miller, NY Civ Prac 302.6a, at 3-107; Sponsler, Jurisdiction over the Corporate Agent: The Fiduciary Shield, 35 Wash & Lee L Rev 349, 352-354 [1978]).

In applying the fiduciary shield doctrine in this case, the Appellate Division cited to some of these decisions and also to our decision in Laufer v Ostrow (55 NY2d 305). The principal issue in Laufer, however, was whether the corporate defendant had "done business” in New York sufficient to support jurisdiction over it under CPLR 301. Neither long-arm jurisdiction nor the fiduciary shield doctrine was involved because an entity doing business in New York under CPLR 301 is deemed present in the State and long-arm jurisdiction need not be invoked. The Laufer court did note that the individual defendant was not subject to long-arm jurisdiction under CPLR 302. This was not because he was protected by the fiduciary shield, however, but because the claim was for a conversion which took place outside the State and no New York injury resulting from the defendant’s tortious conduct was alleged (see, Laufer v Ostrow, supra, at 313-314, citing Fantis Foods v Standard Importing Co., 49 NY2d 317, 326-327; see also, 1 Weinstein-Korn-Miller, op. cit, fl 302.06a, at 3-109 -3-110).

Thus, none of our prior decisions have adopted the fiduciary shield doctrine and we now address whether we should do so in this case. The analysis differs somewhat from that in CPC Intl. v McKesson Corp. (70 NY2d 268, supra) which construed CPLR 302 (a) (2) and involved corporate officers charged with fraudulent misrepresentations made during a meeting in New York State. In this case, Downman, the corporate agent over whom jurisdiction is sought, has not physically entered New York and jurisdiction has been asserted over him because he acted on behalf of nondomiciliary corporations transacting business in New York. Downman claims that under these circumstances equity requires the application of the fiduciary shield because it is unfair to bring him into New York’s courts when, under familiar principles of contract and corporate law, he may not be substantively liable unless the corporate veil is pierced or there is clear evidence that he intended to be personally bound. He contends that unless the doctrine is applied, any employee of a nondomiciliary corporation could be sued personally in New York based solely upon acts of the corporation which employed him.

Defendant’s argument addresses substantive liability and the fact that a corporation is liable for acts of its corporate employee is not relevant to the matter now before us. Liability may be considered only after it is decided, on the basis of CPLR 302, that the defendant is subject to the in personam jurisdiction of our courts (Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 460, cert denied sub nom. Estwing Mfg. Co. v Singer, 382 US 905; and see generally, Siegel, NY Prac § 92; 1 Weinstein-Korn-Miller, op. cit., |J 302.06a, at 3-110). Moreover, plaintiffs objective is more limited than Downman would have us believe. He seeks to acquire jurisdiction over an individual who was a primary actor in the transaction with him in New York, not some corporate employee in Texas who played no part in it (cf., Calder v Jones, 465 US 783, 789-790 [where distinction was drawn between corporate employee who knowingly contributed to the wrong and an employee who played a collateral role or acted without guilty knowledge]). Downman represented two corporations during their participation in purposeful corporate acts in this State and if he acted improperly in representing them, the fact that he acted for one or both of the corporations should not necessarily relieve him from responding to plaintiffs claims against him.

Turning then to the interpretation of CPLR 302, we determine that it is neither necessary nor desirable to adopt the fiduciary shield doctrine in New York. Nothing in the statute’s language or the legislative history relating to it suggests that the Legislature intended to accord any special treatment to fiduciaries acting on behalf of a corporation or to insulate them from long-arm jurisdiction for acts performed in a corporate capacity.

Nor is the rule necessary as a matter of fairness. The equitable concerns which motivated development of the doctrine are amply protected by constitutional due process requisites which guarantee that jurisdiction over a nonresident will be sustained only when the demand for his presence is reasonable and consistent with notions of " 'fair play and substantial justice’ ” (International Shoe Co. v Washington, 326 US 310, 316, supra). Indeed, the Supreme Court has addressed the fiduciary shield doctrine under circumstances similar to those in the case before us and held that it is constitutionally permissible to subject an individual participating in a transaction in a foreign State to long-arm jurisdiction even though his contacts with the forum were made in a corporate capacity (Calder v Jones, 465 US 783, supra; Keeton v Hustler Mag., 465 US 770; 1 Weinstein-Korn-Miller, op. cit., K 302.06a, at 3-102— 3-104). These protections are further amplified by New York’s long-arm statute, which does not confer jurisdiction in every case where it is constitutionally permissible (see, e.g., CPLR 302 [a] [2], [3] [defamation cases]; see generally, Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 71; Siegel, NY Prac §85).

This case is a good example of why the doctrine is not necessary to avoid inequitable results. Plaintiff has obtained jurisdiction over McFadden Oil and Downman will undoubtedly be its principal witness and will have to come to New York for that purpose. That being so, the inconvenience he faces if made a party to the suit individually is minimal and, as a result, notions of fairness do not require us to shield him from the reach of the long-arm statute. Inasmuch as the constitutional and statutory safeguards sufficiently alleviate the equitable concerns posed by long-arm jurisdiction, there is "no convincing reason why the mere fact of corporate employment should alter the jurisdictional calculus” (Koenig, Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield, 38 Stan L Rev 813, 830; accord, Sponsler, Jurisdiction over the Corporate Agent: The Fiduciary Shield, 35 Wash & Lee L Rev 349, 364; McLaughlin, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C302:3, 1988 Cum Ann Pocket Part, at 43-47, 49-50).

Nor is the rule desirable as a matter of public policy. Quite the contrary, it has been soundly condemned by writers for unfairly prejudicing plaintiffs who seek relief against defendants conducting affairs in this State (see, e.g., Sponsler, op. cit.; 1 Weinstein-Korn-Miller, op. cit., [[ 302.06a; Koenig, op. cit.; McLaughlin, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, op. cit.) and the courts which recognize the doctrine have created several exceptions to avoid perceived injustices resulting from its application. For example, courts have refused to apply it where the corporate agent stood to gain personally from activities he conducted on behalf of the corporation or was not faithfully acting in the corporation’s interests (see, Marine Midland Bank v Miller, 664 F2d 899, 903, supra; United States v Montreal Trust Co., 358 F2d 239, 243, supra), an exception of immeasurable breadth because rarely, if ever, does a corporate agent not derive some benefit from acting on behalf of his principal (see, Koenig, Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield, 38 Stan L Rev 813, 826 [1986]). At least one court has held, as have we, that the doctrine should not be invoked where the corporate employee committed a tort in the forum State while acting on behalf of his principal (see, CPC Intl. v McKesson Corp., 70 NY2d 268, 287-288, supra; Merkel Assocs. v Bellofram Corp., 437 F Supp 612, 618-621). Another has ruled that the doctrine should be invoked only if the corporate agent was never physically present in the forum State (see, Columbia Briargate Co. v First Natl. Bank, 713 F2d 1052, 1060-1065, cert denied sub nom. Pearson v Columbia Briargate Co., 465 US 1007). Finally, it has been held that if the particular long-arm statute under consideration was designed to provide personal jurisdiction to the full extent permissible under the Constitution, the doctrine should not be adopted (id., at 1057). That the application of this purportedly equitable rule has required the courts to develop so many exceptions to it to avoid inequitable results suggests that the foundation of the rule is unsound, or at a minimum, that the rule is unworkable.

Accordingly, we hold the fiduciary shield rule is not available to defeat jurisdiction under the New York long-arm statute and turn to the factual determinations made below.

B

Because the sale-leaseback was portrayed to plaintiff as a transaction with McFadden Oil, jurisdiction over it has been sustained by both courts below and this aspect of their rulings is not contested on appeal.

As to defendant Harmony, we determine that the hearing court’s finding that it transacted business in New York more nearly comports with the weight of the evidence in the record than does the Appellate Division’s contrary finding. Jurisdiction over Harmony was properly sustained because Harmony used McFadden Company in New York to secure plaintiffs investment, it paid McFadden Company for that service, and it received the balance of the invested funds directly from McFadden Company when it issued a check payable to Harmony.

Harmony and Downman maintain that the conduct of McFadden Company cannot be attributed to them because there was no agency arrangement between them and McFadden; it did not even know it was representing Harmony. If McFadden Company had marketed the rig with full knowledge that it was acting for Harmony, however, an agency relationship between the two would unquestionably have existed and there is no reason to hold that one did not exist here because Harmony and Downman used Downman’s relationship with McFadden Oil to conceal the truth from the New York entity acting for them.

It is irrelevant, therefore, whether Downman acted on behalf of Harmony or McFadden Oil with respect to plaintiffs transaction. Because we have rejected the fiduciary shield doctrine jurisdiction can be exercised over him for his actions on behalf of either corporation.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion to dismiss complaint as against defendants Downman and Harmony Drilling Co., Inc., denied.

Chief Judge Wachtler and Judges Kaye, Alexander and Bellacosa concur; Judges Titone and Hancock, Jr., taking no part.

Order reversed, etc.

         Insofar as defendant Harmony is concerned, it contends the Appellate Division made a new factual finding that there was no direct nexus between Harmony and New York because Harmony only received the proceeds of the sale of the oil rig after a check for the sale was sent to McFadden Oil in Texas. In other words, the Appellate Division may have concluded that Harmony was paid by McFadden Oil for the rig after the check for it was sent by McFadden Company to McFadden Oil. Although it is not clear whether the Appellate Division made such a finding, assuming it did and that it reversed the finding of the hearing court on this point, it remains for us to decide whether the finding of the hearing court or the Appellate Division more nearly comports with the weight of the evidence (see, CPLR 5501 [b]; Matter of Louise E. S. v W. Stephen S., 64 NY2d 946; Matter of Layton v Foster, 61 NY2d 747).


source: Caselaw Access Project

author: Hancock, Jr., J. Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Mark Ingram, Appellant.
    Argued February 5, 1988;
    decided March 24, 1988

      POINTS OF COUNSEL

      John J. Marotta and Eugene Levy for appellant.
    I. Defendant was denied a fair trial by the introduction of evidence of a subsequent criminal act for which defendant was awaiting trial. (People v Molineux, 168 NY 264; People v Jackson, 39 NY2d 64; People v Cook, 42 NY2d 204; People v Gines, 36 NY2d 932; People v Acevedo, 32 NY2d 941; People v Allweiss, 48 NY2d 40; People v Duncan, 13 NY2d 37; People v Sorge, 301 NY 198; People v Crandall, 67 NY2d 111; People v Rahming, 26 NY2d 411.) II. The People failed to present legally sufficient evidence on the direct case to sustain the indictment. (People v Valerio, 64 AD2d 516; People v Pettus, 53 AD2d 597; People v Montanez, 41 NY2d 53; People v Kirkpatrick, 32 NY2d 17; People v Farina, 290 NY 272.) III. The People failed to prove defendant guilty beyond a reasonable doubt. (People v Valerio, 64 AD2d 516; People v Wachowicz, 22 NY2d 369; People v Jackson, 44 NY2d 935; People v Clarke, 43 AD2d 834; People v. La Belle, 18 NY2d 405; People v Cleague, 22 NY2d 363.)

      Robert M. Morgenthau, District Attorney (Marc Frazier Scholl and Susan Corkery of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v De Tore, 34 NY2d 199, cert denied sub nom. Wedra v United States, 419 US 1025; People v Kirkpatrick, 32 NY2d 17; People v Goldstein, 120 AD2d 471, 68 NY2d 757; People v Baskerville, 60 NY2d 374; People v Cassidy, 109 AD2d 747, 64 NY2d 1132; People v Reynolds, 107 AD2d 724, 64 NY2d 1022; People v Marin, 102 AD2d 14, 65 NY2d 741; United States v Panza, 750 F2d 1141.) II. There was no abuse of discretion in permitting the People to inquire into defendant’s claim that he lacked criminal intent and to present extrinsic evidence contradicting defendant’s false testimony. (People v Vails, 43 NY2d 364; People v Jackson, 39 NY2d 64; People v Allweiss, 48 NY2d 40;
      People v Molineux, 168 NY 264; People v McKinney, 24 NY2d 180; People v Kay, 120 AD2d 615, 68 NY2d 814; People v Douglas, 128 AD2d 718, 69 NY2d 1003; People v Schwartzman, 24 NY2d 241, 396 US 846; People v Harris, 57 NY2d 335, 460 US 1047.)
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant was convicted of robbery, second degree, for acting as a getaway driver in connection with the holdup of a Manhattan gas station committed by Ronnell Harrison. In his trial testimony, defendant offered an innocent explanation for his presence at the station and denied any knowledge that Harrison was intending to commit a robbery. The question presented on defendant’s appeal is whether the trial court erred in permitting the People to adduce evidence that defendant, driving the same car, participated with the same Ronnell Harrison in another gas station holdup 18 days later in Queens. For reasons stated hereafter, we hold that such proof was properly admitted under the intent or state of mind exception to the Molineux rule (People v Molineux, 168 NY 264) and, moreover, that this is so despite the fact that the other similar crime occurred after the crime in question. Accordingly, there should be an affirmance.

I

The robbery for which defendant was convicted occurred at 6:30 p.m. on December 21, 1984 at a Mobil gas station located at Canal and West Streets in Manhattan. According to the People’s witnesses, defendant, driving a red van, pulled up to the pumps on the Canal Street side of the station and asked the attendant on duty for $5 worth of gas. The attendant pumped the gas and returned to the driver’s window for payment. Defendant gave him a $10 bill. As the attendant, standing near the rear of the van, was making change, the passenger approached him from behind the van. With his hand under his jacket, as if pointing something, the passenger said "Give me the money”, grabbed all but one or two of the bills in the attendant’s hand, and reentered the van which drove off. Police, alerted by the proprietor of the station, overtook the van at the Manhattan Bridge. Defendant, who was driving the van, and Ronnell Harrison, the passenger, were arrested.

At trial, defendant testified that he used his father’s van in connection with his employment for a delivery service and that he had occasionally hired Ronnell Harrison to accompany him. He acknowledged that he was at the Mobil station on December 21, 1984 with Harrison and that he purchased $5 worth of gasoline. He stated, however, that he had nothing to do with the robbery, that his first knowledge of it was when the police arrested him at the Manhattan Bridge, and that he was taken totally by surprise. He testified that he had known Harrison for some time and had no reason to believe that he was "the type of person that might go into a gas station and rob it”.

When asked about his contacts with Harrison after the Mobil station robbery, defendant said that he never again had Harrison help in making deliveries or took him in the van. The following testimony on cross-examination is significant:

"Q It is your testimony that you were taken totally by surprise at what happened at that Mobil Station; isn’t that correct?
"A Yes.
"Q And that’s the truth?
"A Yes.
"Q And you testified that you didn’t have anything more to do with Ronnell Harrison after that event; is that correct?
"A Yes.
"Q And that you didn’t drive with him in the red van any more after that?
"A No. I did not.
"Q License Number 7613 BAM; is that correct?
"A Yes.
"Q If I mentioned the date, January 8, 1985, would that jog your memory a little bit about any dealings you had with Ronnell Harrison after you were arrested on this charge?
"A No, it would not.” (Record on appeal, at 192.)

After a sidebar conference the court, over defendant’s objection, permitted the prosecuting attorney to ask the defendant —as bearing on his intent and state of mind — about his arrest for the robbery of a Texaco station in Queens on January 8, 1985, 18 days after the Mobil station robbery. In the Texaco station robbery, defendant, driving the red van which was used in the earlier robbery, again acted as getaway driver for Ronnell Harrison who committed the actual crime.

On continued cross-examination, defendant denied any complicity in or knowledge of the Texaco station robbery. He admitted that he had been arrested in Queens, in the red van, several blocks from the robbery on the night it occurred. But he denied that he had been near the Texaco station at the time it was robbed and that he had driven anywhere with Ronnell Harrison on January 8, 1985. He specifically denied driving Harrison to the Texaco station and picking him up after Harrison’s attempt to hold it up with a shotgun.

At the close of defendant’s case, the court permitted the prosecutor to show through rebuttal witnesses that defendant and Harrison had participated in the Queens robbery. The prosecutor argued that, when "defendant took the stand and said that he was a victim of circumstance, that he didn’t have the specific intent or the mental culpability with respect to the crime that occurred at the Mobil station on December 21, 1984 [emphasis added]”, proof of another robbery involving defendant and the same accomplice, Harrison, became admissible under People v Molineux (supra). During the colloquy concerning this proof, the prosecutor argued that similar crimes occurring after as well as before the crime in question were admissible citing, among other cases, United States v Arroyo-Angulo (580 F2d 1137, 1149 [2d Cir]). Defendant objected, stating "the Molineux Doctrine * * * talked in terms of past crimes, talked in terms of past arrests. Is it now being offered to this Court before the jury that my client had the same intention eighteen days later as he had at that particular time [emphasis added]”. The court responded that "[s]tate of mind is the issue here * * * Yes” and overruled defendant’s objections.

The court, after the Queens robbery evidence had been received, instructed the jury that the proof was to be considered solely as bearing on defendant’s state of mind and as rebutting defendant’s claim that he had no idea that Ronnell Harrison intended to commit the Mobil station robbery. After the Appellate Division unanimously affirmed the conviction, defendant was granted leave to appeal. We now affirm.

II

Under the established rule, evidence of uncharged crimes is inadmissible unless offered for some purpose other than to raise an inference that a defendant has a criminal propensity (see, People v Molineux, 168 NY 264, 291-294, supra; People v Schwartzman, 24 NY2d 241, 247-248, cert denied 396 US 846). With limited exceptions (see, People v Alvino, 71 NY2d 233, 241-243), such proof is excluded as a matter of policy (see, People v Zackowitz, 254 NY 192, 198). When defendant’s criminal intent cannot be inferred from the commission of the act or when defendant’s intent or mental state in doing the act is placed in issue, however, proof of other crimes may be admissible under the intent exception to the Molineux rule (see, People v Alvino, supra). As explained by the Molineux court, proof of intent in such cases "is often unattainable except by evidence of successive repetitions of the act” (People v Molineux, supra, at 298). Admission of such proof — where intent cannot be inferred from the act or where defendant claims he acted innocently — is founded on the law of probabilities. The theory is that the more often the act constituting the crime has been done, the less the likelihood that it could have been done innocently, as if by chance (2 Wigmore, Evidence §§ 302, 312 [Chadbourn rev 1979]). The recurrence of the act negatives the possibility of good faith or inadvertence (see, 2 Wigmore, Evidence ^ 351 [Chadbourn rev 1979]).

In the case before us, defendant — by testifying that his purpose for being at the Mobil station on December 21, 1984 was to purchase gasoline and that he had no idea that Harrison was intending to commit a robbery — put the question of his criminal intent and state of mind directly in issue. Unquestionably, under our established case law pertaining to the Molineux intent exception, proof that defendant and Harrison had acted together in another similar gas station holdup would be admissible (see, e.g., People v Alvino, 71 NY2d, at 242-243, supra; People v Schwartzman, supra, at 247-248). The other robbery has obvious relevance as tending to refute defendant’s claim of an innocent state of mind (see, People v Schwartzman, supra, at 248; 2 Wigmore, Evidence § 302 [Chadbourn rev 1979]).

It is argued, however, that the rule should be different because the Queens robbery occurred after rather than before the crime in question. We disagree. It is the duplication of the inculpatory conduct which makes the innocent explanation improbable. That defendant was present with his van at two gas station robberies, with the same accomplice, within 18 days, casts serious doubt on the assertion that his presence at either crime scene was innocent. The improbability exists regardless of the sequence in which the two crimes occurred. As stated by Dean Wigmore, "it is the repetition * * * that is significant, and a subsequent instance reduces the probability of innocence equally as well as a prior one” (2 Wigmore, Evidence § 321, at 285 [Chadbourn rev 1979]). Proof of the second robbery was properly received under the Molineux intent or state of mind exception as showing that defendant had the mental culpability required for criminal liability under Penal Law § 20.00. His presence with Harrison at the second robbery clearly tended to discredit his testimony that his stop to buy gas at the earlier robbery site was merely coincidental and without criminal purpose and that, while he did, in fact, aid Harrison, he did so unintentionally because he was unaware that Harrison was committing the robbery.

Most often, of course, defendant’s intent or state of mind is established by proving prior similar crimes. Authority is ample, however, for the admissibility of similar subsequent crimes as well. Our court, for example, has held that proof of a subsequent drug offense may be admitted to show defendant’s predisposition in order to refute the defense of entrapment (see, People v Calvano, 30 NY2d 199, 206); and that subsequent fraudulent acts may be shown to establish defendant’s fraudulent intent and guilty knowledge with respect to the fraudulent act charged (see, People v Marrin, 205 NY 275, 282-283 [see, discussion of Marrin in People v Rutman, 260 App Div 784, 787]; Mayer v People, 80 NY 364, 373-376 [setting out at length the unpublished opinion by Judge Earl in People v Shulman, 76- NY 624]; Richardson, Evidence § 177 [Prince 10th ed]; see also, Pierson v People, 79 NY 424; People v Holmes, 112 AD2d 739; People v Rutman, supra).

We hold, then, that the trial court did not err in admitting proof of the January 8, 1985 robbery as bearing on defendant’s intent and state of mind. Although legally admissible, whether the probative value of such proof outweighed its prejudice was a question for the exercise of the trial court’s discretion and is not at issue here (see, People v Alvino, 71 NY2d, at 242, supra; People v Ventimiglia, 52 NY2d 350, 361-362). Our holding, we note, has support in Federal decisions (see, e.g, United States v Arroyo-Angulo, 580 F2d 1137, 1149 [2d Cir], supra; United States v Cavallaro, 553 F2d 300, 305 [2d Cir]; United States v Grady, 544 F2d 598, 605 [2d Cir]) and in holdings of other State courts (see, e.g., State v Scherer, 77 Wash 2d 345, 462 P2d 549, 553, 554, 555; State v Eubanks, 86 Idaho 32, 383 P2d 342, 345 [1963]; 2 Wigmore, Evidence §§ 316, 321, at 284-285 [Chadbourn rev 1979] [collecting cases]).

We have examined defendant’s other contentions and conclude that they are without merit. Accordingly, the order should be affirmed.

Kaye, J.

(concurring). Recently, in People v Alvino (71 NY2d 233), this court upheld the admission of evidence of prior uncharged crime to establish defendant’s intent, and today we extend those principles to admission of evidence of subsequent crime. While I join in the logical application of Alvino to the case before us, I write separately to highlight a conceptually elusive point which — while ultimately inconsequential in the case before us — may well be important in other cases, and is therefore deservedly explicated in greater detail.

Generally, evidence of uncharged crimes is inadmissible to establish a predisposition to commit crime, but may be admissible in certain instances for the purpose of proving particular issues in dispute (see, People v Lewis, 69 NY2d 321, 325; People v Molineux, 168 NY 264). Evidence of other crimes may be offered, for example, to establish a defendant’s knowledge of a particular fact, or to prove intent to commit the charged crime (see, People v Allweiss, 48 NY2d 40). Although knowledge and intent may be discussed interchangeably — and referred to loosely as "state of mind” — they in fact involve discrete legal principles. Evidence of uncharged crimes admissible on one basis may not be admissible on the other.

Admission of uncharged crimes to prove knowledge focuses on the concept of warning (2 Wigmore, Evidence § 301, at 238-239 [Chadbourn rev 1979]). Where, for example, a defendant has been charged with possession of stolen property and the prosecution must establish that defendant knew that the property was stolen, evidence of prior charges of possession of similar stolen property may be probative evidence. Prior possession of stolen property likely gave defendant warning that more goods from the same source would likely also be stolen. Thus, a defendant who acquired stolen goods after having been in effect "warned” of their stolen nature would be hard pressed to claim lack of knowledge that the goods were stolen.

Admission of uncharged crimes to prove intent has an entirely different basis. "The argument here is purely from the point of view of the doctrine of chances — the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all.” (2 Wigmore, Evidence § 302, at 241 [Chadbourn rev 1979].) Similar results, quite simply, "do not usually occur through abnormal causes; and the recurrence of a similar result * * * tends * * * to negative accident or inadvertence or self-defense or good faith or other innocent mental state” (id..).

This theoretical distinction between knowledge and intent as the basis for admitting evidence of uncharged crime becomes particularly significant where the evidence sought to be introduced relates to subsequent acts. As the majority opinion notes, for the purpose of proving intent it matters not whether the uncharged crime occurred prior or subsequent to the charged crime. Each prior or subsequent instance, or repetítion, of particular criminal activity reduces the possibility that an innocent state of mind can account for any of the acts. But where the uncharged crimes are admitted to prove knowledge, the time of the uncharged crime may well be critical. "[A] subsequent act obviously cannot serve as a warning or as proof of defendant’s actual knowledge of a particular fact or condition at an earlier time.” (See, majority opn, at 480, n 2.)

In his limiting instructions following the introduction of the evidence, and again in his charge to the jury, the Trial Judge indicated that the evidence of defendant’s subsequent gas station robbery with Ronnell Harrison was admitted "solely for the purpose of rebutting defendant’s testimony that he did not know Ronnell Harrison would commit the robbery charged * * * in the indictment.” Admission of evidence of a subsequent crime to rebut defendant’s claim of lack of knowledge was error. That defendant may have participated in a gas station robbery on a subsequent occasion does not tend to prove that on the prior occasion he knew what Harrison was going to do. The second gas station robbery simply could not have "warned” defendant of the criminal nature of Harrison’s conduct at the time of the first robbery.

Nevertheless, I agree that evidence of the subsequent crime was admissible on the independent issue of defendant’s intent. Proof that defendant engaged in a subsequent gas station robbery with Harrison was probative of his intent at the time of the earlier robbery. The fact that defendant committed a second robbery with Harrison, while not probative of the state of his knowledge at the time of the first robbery, did tend to decrease the possibility that his presence with Harrison on the earlier occasion was coincidental or otherwise innocent. Thus, in the present case the evidence was properly received, although the rationale was not correctly stated.

Chief Judge Wachtler and Judges Simons, Alexander and Dillon concur with Judge Hancock, Jr.; Judge Kaye concurs in a separate opinion in which Judge Bellacos a concurs and in which Judge Dillon also concurs.

Order affirmed.

      . In its limiting instructions to the jury, the court stated that the Texaco robbery evidence was offered "solely for the purpose of rebutting the defendant’s testimony that he did not know Ronnell Harrison would commit the robbery charged”; that it was for the jury to determine "the sufficiency of such evidence of proof of the defendant’s knowledge or state of mind”; and that "it was for the state of mind of the defendant, what he knew and that this was his buddy in the robbery”. Essentially the same instruction was given in the court’s final jury charge. No exception was taken to the wording of either instruction and no request for a further or different instruction was made. Defense counsel, noting that the proof had been admitted "for the purpose of proving the intent of the defendant,” excepted to the final charge on the sole ground that "the very fact it was permitted in, and statement made of a shotgun, is prejudicial”. Thus, the only question before us is whether the evidence was properly admitted under the Molineux intent exception. No question concerning the imprecision of the court’s limiting instructions is preserved for our review; nor is such question addressed in the briefs.

      . This is not a case where the purpose of the proof of the subsequent crime was to establish defendant’s prior actual knowledge of some specific fact as an essential element of the crime (see, discussion of distinction between other crimes evidence bearing on intent as opposed to that bearing on defendant’s actual knowledge in 2 Wigmore, Evidence §§ 301, 302, 316, 321 [Chadbourn rev 1979]). As Wigmore points out, a subsequent act obviously cannot serve as a warning or as proof of defendant’s actual knowledge of a particular fact or condition at an earlier time. The situation is different, however, where intent, or "guilty knowledge”, is the issue. As is the case here, a subsequent crime is relevant to show the improbability of a defendant’s claims of unwitting complicity in an earlier crime and of ignorance of his accomplice’s criminal purpose. As Wigmore states: "in evidencing intent it is the repetition of instances that tends to negative innocence in particular instances, and thus it is immaterial whether the instances are found occurring before or after the act charged” (id., § 316, at 274).

       Designated pursuant to NY Constitution, article VI, § 2.


author: Dillon, J. Simons, J.

text:
    In the Matter of John Doe, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, Appellant.
    Argued February 10, 1988;
    decided March 24, 1988

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Howard L. Zwickel, O. Peter Sherwood, Lawrence S. Kahn and Adina Kling of counsel), for appellant.
    I. Since respondent’s determination was nonfinal and remanded the matter to the Committee for completion of the disciplinary hearing, this article 78 proceeding is premature and should be dismissed. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Matter of Martin v Ambach, 85 AD2d 869, 57 NY2d 1001; Matter of Golden v Planning Bd., 30 NY2d 359; Loretto v Teleprompter CATV Corp., 53 NY2d 124, 458 US 419; Matter of Patterson v Smith, 53 NY2d 98; Matter of Pfaff v Columbia-Green Community Coll., 99 AD2d 887; Matter of Rush v Mordue, 68 NY2d 348; Matter of State of New York v King, 36 NY2d 59; Matter of Wesser v State of New York, Dept. of Health, 94 AD2d 681, 60 NY2d 785; Matter of Whalen v Slocum, 84 AD2d 956.) II. The Commissioner has the authority to overrule a legal determination of his designated Administrative Officer and his exercise of that authority before the completion of the hearing was both proper and reasonable. (Matter of John P. v Whalen, 54 NY2d 89; Matter of Joseph Burstyn, Inc. v Wilson, 303 NY 242, 343 US 495; Matter of Gross v Ambach, 126 AD2d 1; Matter of Fahey v Public Health Council, 89 AD2d 702; Matter of Bruemmer v Vecchio, 93 AD2d 863; Matter of Henry v Wilson, 85 AD2d 885.) III. The Commissioner’s determination that confidential reports to the Board may not be disclosed when persons testify at medical misconduct hearings was a proper interpretation of Public Health Law § 230 (11) (a) and one which does not deny petitioner his right of cross-examination. (Matter of John P. v Whalen, 54 NY2d 89; Matter of Howard v Wyman, 28 NY2d 434; Matter of Grattan v People, 65 NY2d 243; People v Snyder, 129 Misc 2d 137; Matter of Murawski, 84 AD2d 496; Matter of Hecht v Monaghan, 307 NY 461; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Sowa v Looney, 23 NY2d 329; Matter of Greenbaum v Bingham, 201 NY 343.)

      Jerome R. Halperin and Guy S. Halperin for respondent.
    I. The Commissioner’s order exceeded his statutory powers in reversing evidentiary rulings of the Administrative Law Officer made during the course of the medical disciplinary hearings held pursuant to Public Health Law § 230 (10). (Matter of Whalen v John P., 72 AD2d 961.) II. Petitioner has the right to cross-examine witnesses concerning prior statements made by them to the Board and, if in writing, require them to be produced, a fundamental right guaranteed by the statute and the Constitution. (Matter of Hecht v Monaghan, 307 NY 461; People v Ramistella, 306 NY 379; People v Lustig, 206 NY 162; People v Becker, 210 NY 274; Alford v United States, 282 US 687; People v Cole, 43 NY 508; Matter of Murawski, 84 AD2d 496; People v Rosario, 9 NY2d 286, 368 US 866.) III. This article 78 proceeding is appropriate to challenge the ultra vires interlocutory order of the Commissioner who without statutory authority issued the order depriving petitioner of his constitutional and statutory rights to effectively confront and cross-examine witnesses. (Village of Herkimer v Axelrod, 88 AD2d 704, 58 NY2d 1069; Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Matter of Schumer v Holtzman, 60 NY2d 46; Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686; La Rocca v Lane, 37 NY2d 575, 424 US 968; Matter of Lee v County Ct., 27 NY2d 432; Matter of Culver Contr. Corp. v Humphrey, 268 NY 26.)
   OPINION OF THE COURT

Dillon, J.

Petitioner brought this article 78 proceeding in the nature of prohibition seeking to annul and vacate an order of the Commissioner of Health. The order reversed rulings of an Administrative Officer made at a disciplinary hearing before a Committee of the State Board for Professional Medical Conduct, and directed that the Committee reconvene and complete the hearing. The petition should be dismissed because the extraordinary remedy of prohibition is not available in the circumstances presented.

Petitioner is a licensed physician engaged in the practice of psychiatry. In April 1985, he was served with a notice of hearing and statement of charges by the State Board for Professional Medical Conduct (State Board). The misconduct charges were based on complaints of four female patients, each of whom alleged that she had been sexually abused by petitioner during the course of psychiatric treatment. The incidents of alleged abuse extended from 1970 through March 1980.

A hearing on the charges commenced before the Committee on Professional Conduct (Committee) on June 11, 1985 and continued on several dates thereafter. The four complainants appeared and testified, and on cross-examination each was asked whether she had previously made complaints against petitioner to the State Board. Petitioner’s stated purpose was to examine reports of such complaints, if any had been made. Counsel for the office of Professional Medical Conduct objected, citing the confidentiality provisions of Public Health Law § 230 (11) (a), and directed each complainant not to answer. On reconvening after an adjournment, the Administrative Officer (AO) overruled the objections, ordered the production of documentary evidence of any such prior complaints, and directed that each complainant appear for cross-examination on the subject. When counsel refused to comply, petitioner moved for dismissal of the charges. After further adjournment, the AO struck the complainants’ testimony and directed that it not be considered by the Committee in its deliberations. In its report to the Commissioner of Health (Commissioner), the Committee stated that because of the ruling of the AO, it could not render a final determination. It recommended that the "Commissioner take whatever legal steps are necessary to permit [it] to make a full determination on the merits of the charges”. The Commissioner reversed the rulings of the AO on the ground that Public Health Law § 230 (11) (a) mandates that complaints to the State Board remain confidential, and he remanded the matter to the Committee to complete the hearing.

Petitioner, contending that the Commissioner is powerless to reverse a ruling of an Administrative Officer, argues that this proceeding is appropriate because he challenges "an unconstitutional interlocutory order of the Commissioner of Health as ultra vires, beyond the scope of his authority”. Supreme Court disagreed, holding that the Commissioner is "not bound by the evidentiary rulings of his appointed administrative officer”, and dismissed the proceeding as premature (132 Mise 2d 980, 985). The Appellate Division, two Justices dissenting, reversed and granted the petition. That court found that because the Commissioner’s order impacted upon petitioner’s right of confrontation and could result in an unconstitutional deprivation of property without due process of law, the proceeding was properly brought as a "legitimate exception to the doctrine of exhaustion of administrative remedies” (123 AD2d, at 26). It also found that the Commissioner exceeded the scope of his statutory authority in reversing the AO’s evidentiary rulings. Leave to appeal to this court was granted by the Appellate Division, which certified the following question: "Was the order of this Court, which, inter alia, reversed the judgment (denominated an order) of the Supreme Court, properly made?” It was not, and there must be a reversal.

The general powers and duties of the Commissioner are enumerated in Public Health Law § 206, under which the Commissioner is directed to "take cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto and exercise the functions, powers and duties of the department [Department of Health of the State of New York] prescribed by law” (Public Health Law § 206 [1] [a]). That mandate encompasses the duty to investigate and prosecute professional misconduct involving the medical profession (see, Education Law § 6510-a [1]; Public Health Law § 230), and to that end the Commissioner is authorized to appoint the members of the State Board for Professional Medical Conduct (see, Public Health Law § 230 [1]) which, by committees of its members, has the power to conduct disciplinary hearings (Public Health Law § 230 [7]). In connection with such hearings, the Commissioner is required to designate an attorney to serve as an Administrative Officer, who has "the authority to rule on all motions, procedures and other legal objections and * * * to rule on objections to questions posed by either party or the committee members” (Public Health Law § 230 [10] [e]). On conclusion of a hearing, a committee is required to make and transmit to the Commissioner findings of fact, conclusions concerning the charges and, when appropriate, to recommend the penalty or sanction to be imposed (Public Health Law § 230 [10] [g], [h]). The Commissioner is empowered to make his own recommendation as to a committee’s findings, conclusions and recommendation, and is thereafter required to transfer the entire record of the proceeding to the Board of Regents for final decision and order (Public Health Law § 230 [10] [i]; see, Education Law § 6510-a [2]).

Petitioner argues that because the Commissioner is not specifically authorized by Public Health Law § 230 to reverse a ruling of an Administrative Officer, the power does not exist. We disagree. Whether a determination made by an Administrative Officer at a disciplinary hearing is final and binding upon the Commissioner depends upon the intent of the Legislature in conferring their respective powers (Matter of Joseph Burstyn, Inc. v Wilson, 303 NY 242, revd on other grounds 343 US 495). The position of Administrative Officer was created by legislation which was designed to reform the professional disciplinary process and improve its efficiency and effectiveness (Governor’s Mem, approving L 1980, ch 866, 1980 McKinney’s Session Laws of NY, at 1919). It would ill-serve that legislative purpose to attribute administrative finality to a ruling of an Administrative Officer, or even to require that corrective action await review by the Board of Regents or by the courts. Nothing in the legislation or its history suggests an intention that the limited authority given to an'Administrative Officer should work to impede the disciplinary process or inhibit the Commissioner and the Board of Regents from effectively and expeditiously resolving complaints of misconduct in the medical profession.

Here the matter properly came to the Commissioner in a manner consistent with the orderly review process established in Public Health Law § 230. In its report, the Committee made clear that the AO’s ruling had effectively prevented it from making a final determination, as the statute requires. The Committee sought the Commissioner’s intercession to the end that it be permitted to determine the merits of the charges against petitioner. Given the broad powers conferred upon the Commissioner in matters concerning the public health, and more particularly in regulating professional medical conduct, it would be anomalous if the Commissioner, under the unusual facts of this case, did not have the power to make his independent determination of the issues. In our view, the power to do so is "essential to the exercise” of the far-reaching powers expressly granted to the Commissioner by the Legislature (Lawrence Constr. Corp. v State of New York, 293 NY 634, 639).

Having thus concluded that the Commissioner did not exceed his powers in reversing the ruling of the AO, we briefly address other issues presented on this appeal. While petitioner urges that the Commissioner’s determination gives rise to an issue of constitutional dimension, and the Appellate Division agreed, it does not follow, as that court found, that this proceeding is properly brought as a legitimate exception to the doctrine of exhaustion of administrative remedies (see, Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57). Clearly, petitioner seeks judgment in the nature of prohibition (see, CPLR 7803 [2]). That extraordinary remedy is available only where there is a clear legal right, and only when an officer acts without jurisdiction or in excess of powers in a proceeding over which there is jurisdiction "in such a manner as to implicate the legality of the entire proceeding” (Matter of Rush v Mordue, 68 NY2d 348, 353). Petitioner’s challenge is directed only to the alleged evidentiary error committed within the proceeding. The writ of prohibition does not lie as a means of seeking collateral review of a mere error of law in the administrative process, no matter how egregious that error might be (see, Matter of Steingut v Gold, 42 NY2d 311, 315), "and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power” (Matter of Rush v Mordue, supra, at 353). Consequently, relief in the nature of prohibition is not available to petitioner. He has "an adequate remedy in his right to institute an article 78 proceeding following a final agency determination” (Matter of Rainka v Whalen, 73 AD2d 731, 732, affd for reasons stated at App Div 51 NY2d 973).

Accordingly, the order of the Appellate Division should be reversed, with costs, the petition dismissed, and the certified question answered in the negative.

Simons, J.

(concurring). I would dismiss the proceeding without addressing the merits.

It is well settled that "one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law (e.g., Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375)” (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57). While the rule is not without exceptions (id., at 57), none is applicable here.

Petitioner contends that prohibition is available because the Commissioner exceeded his powers in reversing the evidentiary ruling of the Administrative Officer and remitting the matter to complete the administrative hearing. However, any abuse of power by the Commissioner, if such there was, affects only the permissible scope of petitioner’s cross-examination of complainants; it does not in any way implicate the legality of the hearing or vitiate the proceedings. Petitioner has an adequate remedy for such errors by way of direct review of any discipline that ultimately may be imposed by the Board of Regents and suffers no legally cognizable injury by merely being subjected to the disciplinary hearing with the possibility of a subsequent finding of professional misconduct (Matter of Rush v Mordue, 68 NY2d 348, 354-355). Accordingly, there is no need to address the merits of petitioner’s claim by engaging in an analysis of the Commissioner’s powers (Matter of Rush v Mordue, supra).

Chief Judge Wachtler and Judgés Kaye, Alexander, Hancock, Jr., and Bellacosa concur with Judge Dillon; Judge Simons concurs in result in a separate opinion.

Order reversed, etc.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    The People of the State of New York, Respondent, v Samuel K. Tambe, Appellant.
    Argued February 9, 1988;
    decided March 24, 1988

      POINTS OF COUNSEL

      Edward L. Fiandach for appellant.
    I. The search warrant for 3788 West Lake Road, Canandaigua, New York, was issued solely upon appellant’s equivocal conduct, an error as a matter of law; the evidence must be suppressed as a violation of the Fourth Amendment to the US Constitution, and article I, § 12 of the NY Constitution. (Aguilar v Texas, 378 US 108; Nathanson v United States, 290 US 41; Giordenello v United

      States, 357 US 480; Henry v United States, 361 US 98; Spinelli v United States, 393 US 410; People v Hansen, 38 NY2d 17; People v Wirchansky, 41 NY2d 130; People v Yedvobnik, 48 NY2d 910; People v Bigelow, 66 NY2d 417; People v Edwards, 69 NY2d 814.) II. The warrant issued for the search of appellant’s home was violative of the Fourth Amendment to the US Constitution, and article I, § 12 of the NY Constitution; determination of probable cause was made by one other than the issuing Magistrate. The evidence must be suppressed. (People v Potwora, 48 NY2d 91; People v P. J. Video, 68 NY2d 296; Illinois v Gates, 462 US 213; People v Hanlon, 36 NY2d 549; People v Oden, 36 NY2d 382; People v Bigelow, 66 NY2d 417; Fagnan v Knox, 66 NY 525; Mapp v Ohio, 367 US 643.) III. The averments of Senior Investigator Freeman were false or made with reckless disregard for the truth and accordingly denied appellant of his constitutional rights. (People v Alfinito, 16 NY2d 181; Mapp v Ohio, 367 US 643; Franks v Delaware, 438 US 154; Fagnan v Knox, 66 NY 525; Besson v Southard, 10 NY 236.) IV. The failure of the searching authorities to prepare and exhibit a written search warrant renders the search of defendant’s premises at 3788 West Lake Road, Canandaigua, New York, a violation of defendant’s State constitutional rights. Any evidence seized therefrom must be suppressed. (People v Crandall, 108 AD2d 413; Camara v Municipal Ct., 387 US 523; Mapp v Ohio, 367 US 643; People v Nicoletti, 34 NY2d 249; Schneckloth v Bustamonte, 412 US 218; Lopez v United States, 370 F2d 8.) V. The warrant for the search of appellant’s residence located at 3788 West Lake Road, Canandaigua, New York, conclusively demonstrates grave disregard for the requirement set forth in CPL 690.36. The warrant is void as a matter of law and the evidence must be suppressed. (Christofferson v Washington, 393 US 1090; People v Brown, 40 NY2d 183; People v Nicoletti, 34 NY2d 249; Franks v Delaware, 438 US 154; People v Alfinito, 16 NY2d 181; United States v Loyd, 721 F2d 331; People v P. J. Video, 68 NY2d 296; People v Sher, 38 NY2d 600; People v Potwora, 48 NY2d 91; Aguilar v Texas, 378 US 108.) VI. The application upon which the court authorized eavesdropping of appellant’s telephone was violative of the Fourth Amendment to the US Constitution and article I, § 12 of the NY Constitution, in that the same as a matter of law failed to provide a showing of probable cause. (People v Bigelow, 66 NY2d 417; Fagnan v Knox, 66 NY 525; Besson v Southard, 10 NY 236; Berger v New York, 388 US 41; People v Corrado, 22 NY2d 308; People v Di Carlo, 43 AD2d 797; People v Brown, 80 Misc 2d 777; People v McGrath, 86 Misc 2d 249; People v Kaiser, 21 NY2d 86, 394 US 280; Carroll v United States, 267 US 132.) VII. The failure of the authorities to file timely progress reports as ordered by the issuing Magistrate mandates suppression of the conversations so seized; People v Marino (49 NY2d 774) should not be followed; progress reports represent the bench mark of compliance. (People v Floyd, 41 NY2d 245; Mapp v Ohio, 367 US 643; Wong Sun v United States, 371 US 471.) VIII. The warrant which authorized the eavesdropping of appellant’s telephone was void as a matter of law in that the tape recordings constituting such interceptions were not sealed in a timely fashion. (People v Nicoletti, 34 NY2d 249; People v Washington, 46 NY2d 116; People v Edelstein, 54 NY2d 306; People v Gallina, 66 NY2d 52; People v Basilicato, 64 NY2d 103; Mapp v Ohio, 367 US 643; Wong Sun v United States, 371 US 471.) IX. The warrant which authorized a search of 3788 West Lake Road, Canandaigua, New York, was not issued by a neutral and detached Magistrate, and therefore was violative of appellant’s constitutional rights. (Coolidge v New Hampshire, 403 US 443; Aguilar v Texas, 378 US 108; Lo-Ji Sales v New York, 442 US 319; Johnson v United States, 333 US 10; United States v Chadwick, 433 US 1; People v Potwora, 48 NY2d 91; Mapp v Ohio, 367 US 643.) X. The failure to order those motions relating to contravention of the eavesdropping and search warrants returnable before one other than the issuing Magistrate constitutes reversible error. (People v Romney, 77 AD2d 482; People v Guerra, 65 NY2d 60.)

      James R. Harvey, District Attorney (R. Michael Tantillo of counsel), for respondent.
    I. The search warrant directed at appellant’s residence was issued upon the correct determination of the issuing Magistrate that there existed probable cause to believe that contraband would be found therein. (People v Bigelow, 66 NY2d 417; People v Manuli, 104 AD2d 386; People v Baris, 116 AD2d 174; People v Davis, 93 AD2d 970; People v Germaine, 87 AD2d 848; United States v Valenzuela, 596 F2d 824; United States v Wood, 550 F2d 435; People v Rizzo, 40 NY2d 425; People v Concepcion, 38 NY2d 211; People v Oden, 36 NY2d 382.) II. The averments of the police officer requesting the search warrant were neither falsely made nor made in reckless disregard for the truth. (Franks v Delaware, 438 US 154; People v Bartolomeo, 53 NY2d 225; People v Alfinito, 16 NY2d 181; People v Ingram, 79 AD2d 1088.) III. The preparation of a written search warrant was not required, but the issue is not preserved for review in any event. (People v Vasquez, 66 NY2d 968; People v Claudio, 64 NY2d 858; People v Coleman, 56 NY2d 269; People v Danziger, 41 NY2d 1092; People v Mahoney, 58 NY2d 475; People v Brown, 40 NY2d 183.) IV. The requirements of CPL 690.36, dealing with oral applications for search warrants, were scrupulously met; in any event, portions of the argument are not preserved for review. V. The warrant authorizing eavesdropping of appellant’s telephone was issued upon a showing of probable cause. (People v Kaiser, 21 NY2d 86, 394 US 280; People v Manuli, 104 AD2d 386; United States v Fury, 554 F2d 522, cert denied sub nom. Quinn v United States, 433 US 910; United States v Garcia, 785 F2d 214; United Stated v Brown, 761 F2d 1272; United States v Ventresca, 380 US 102; People v Hanlon, 36 NY2d 549; United States v Vazquez, 605 F2d 1269; People v Romney, 77 AD2d 482.) VI. The police complied with the requirement to furnish periodic progress reports concerning the eavesdropping. (People v Floyd, 41 NY2d 245; People v Marino, 49 NY2d 774.) VII. The taped conversations seized pursuant to the eavesdropping warrant were timely sealed. (People v Edelstein, 54 NY2d 306; People v Gallina, 66 NY2d 52; People v Basilicato, 64 NY2d 103.) VIII. It was not error for the issuing Judge to preside over motions directed at the search and eavesdropping warrants. (People v Romney, 77 AD2d 482; People v Jones, 108 Misc 2d 137; People v Basilicato, 114 Misc 2d 619, 98 AD2d 124, 64 NY2d 103; People v Guerra, 65 NY2d 60; People v Versace, 73 AD2d 304.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted, upon his guilty plea, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]). On this appeal he challenges on several grounds the validity of a search warrant authorizing the search of his house and the seizure of various items of physical evidence, including approximately two pounds of cocaine found during the course of the search.

I

While investigating a drug ring involving the importation and distribution of cocaine in the Finger Lakes region, the State Police obtained authorization to place a wiretap on the phone of one Hector Carbuccia, a known cocaine distributor operating at the middle level of the local drug distribution chain. By means of the wiretap, they intercepted coded conversations between Carbuccia and defendant suggestive of drug activity. Consequently, on June 15, 1984 the Ontario County District Attorney sought an eavesdropping warrant for defendant’s telephone.

The application in support of the eavesdropping warrant contained over 200 pages. Included in it was an affidavit from State Police Investigator William Freeman, who was the director of the area-wide drug investigation and an officer with substantial experience in drug enforcement. In his affidavit he summarized the results of the investigation and he attached to it several exhibits, including the results of a pen register surveillance which showed that over 2,000 telephone calls of short duration had been placed to and from defendant’s residence over a one-month period of time. Defendant, who had prior drug-related arrests and convictions, had no known legitimate occupation and, according to Investigator Freeman, such phone call patterns were consistent with narcotics trafficking. The pen register results also revealed that defendant regularly conversed with other individuals identified as cocaine distributors by known police informants speaking from personal knowledge and against their penal interests. Another informant named defendant as a "marihuana and cocaine connection” for Canandaigua. Most significantly, the warrant application contained a detailed summary and verbatim passages of phone conversations between defendant and Hector Carbuccia. The conversations were "coded” in an attempt to disguise their purpose, but according to Investigator Freeman, who had listened to the calls, read the transcripts of them and translated the coded language used by defendant and his companions, the conversations related to the distribution of cocaine in the Finger Lakes region.

On the basis of this information, Ontario County Judge Frederic T. Henry, Jr., issued an order authorizing the police to tap defendant’s telephone. By means of the tap, State Police investigators intercepted several drug-related calls to and from defendant’s residence during the next 15 days.

On the morning of June 30, 1984, Freeman made an oral application to Judge Henry pursuant to CPL 690.36 to search the residence of Paul Callerame, one of defendant’s associates in drug distribution. He requested that the Judge "incorporate by reference” all of the facts and circumstances contained in the 200-page application for the eavesdropping warrant issued 15 days earlier and he explained why he thought there was probable cause to search Callerame’s residence. Specifically, he offered his expert explanation of each of 19 coded telephone conversations involving defendant and his companions, supplying Judge Henry with verbatim quotations of the salient portions of 15 of them. These telephone conversations revealed that on June 25, 1984 codefendant Paul Callerame flew to Florida from Syracuse and purchased about 32 ounces of cocaine. While negotiating the cocaine transaction in Florida, Callerame called both his girlfriend Susan Kennedy and defendant in Canandaigua to advise them of details. After the purchase, Callerame called defendant and told him that it was "time to send the mailman”, meaning that it was time for codefendant A1 Sterling to drive down to Florida to pick up the cocaine and return to the Finger Lakes region with it by car. The intercepted communications also revealed that Sterling, under the direction of defendant, did indeed leave for Florida, that he made contact with Callerame in West Palm Beach, Florida, and that the two men left Florida at about the same time — Callerame by plane, Sterling by car. When the two codefendants returned to New York, they contacted defendant, who had been accepting orders for the resale of substantial quantities of cocaine to various other individuals farther down the drug chain while Sterling and Callerame were away. Sterling, Callerame and defendant arranged to meet on the morning of June 30, 1984 to cut and distribute the cocaine.

Freeman also supplied Judge Henry with details corroborating the activities discussed on these tapes. For example, he confirmed that Sterling had rented a car in Rochester on June 26 and that Callerame had flown to Florida from the Syracuse airport and subsequently returned there from Florida. In the course of their telephone conversation, Freeman also told Judge Henry that his surveillance team had seen defendant at Callerame’s residence on the morning of June 30, 1984. Freeman then read contents of the search warrant for Callerame’s residence to Judge Henry and the Judge authorized a no-knock warrant based upon all the information presented, including the information supplied to support the eavesdropping warrant "incorporated by reference” into the search warrant application.

Before the warrant could be executed, however, defendant and the codefendants left the Callerame residence and drove to defendant’s residence in Canandaigua. Accordingly, Freeman called Judge Henry again at about 11:55 a.m. After being properly sworn, Freeman asked Judge Henry to incorporate by reference all of the information supplied during the two earlier warrant applications, and then proceeded to tell him why he believed that cocaine was now present at defendant’s residence. He referred the court to the June 28, 1984 conversation in which defendant told an individual named Peter Roth that he had IV2 ounces of cocaine at his residence and was waiting for the larger shipment to come in. Freeman also told Judge Henry that he believed that defendant had gone to the Callerame residence that morning to pick up a supply of the cocaine. Freeman read the contents of the warrant and Judge Henry issued a no-knock warrant for defendant’s residence.

That afternoon New York State Police officers executed the warrant and seized from defendant’s residence roughly two pounds of cocaine in numerous bags and containers as well as scales, dilutants, and other drug-related paraphernalia. Defendant was subsequently indicted for first degree possession of a controlled substance (Penal Law § 220.21 [1]) and when his motion to suppress the evidence seized pursuant to the search warrant was denied, he pleaded guilty.

II

Defendant has made several arguments in support of suppression but only four merit discussion.

A

Defendant contends first that the eavesdropping warrant issued by Judge Henry on June 15, 1984 was not supported by probable cause and, therefore, all evidence obtained by means of that warrant, either directly or indirectly, must be suppressed under the State and Federal Constitutions (NY Const, art I, § 12; US Const 4th Amend).

It is settled that the probable cause necessary for the issuance of an eavesdropping warrant is measured by the same standards used to determine whether probable cause exists for the issuance of a search warrant (People v Kaiser, 21 NY2d 86, 96, affd 394 US 280; People v Manuli, 104 AD2d 386, 387). As in the case of warrants generally, whether eavesdropping warrants are supported by probable cause is a mixed question of law and fact and, therefore, this court is limited to reviewing the legal sufficiency of the evidence to determine whether the People have made the necessary minimum showing (see, People v Bigelow, 66 NY2d 417, 420-421; People v Johnson, 66 NY2d 398, 402; People v McRay, 51 NY2d 594, 601).

The record supports the finding of the courts below that there was sufficient evidence to support a finding of probable cause for the issuance of the eavesdropping warrant. First, there was the lawfully intercepted telephone calls between Carbuccia and defendant. The conversations were coded and, therefore, ambiguous but Investigator Freeman was an experienced drug officer and he interpreted the language used. His analysis was properly accepted because, as the courts below quite correctly recognized, "cryptic and ambiguous conversations may serve as a predicate for probable cause when reasonably interpreted by an experienced investigator” (People v Manuli, 104 AD2d 386, 388, supra; accord, People v Baris, 116 AD2d 174, 191; People v Germaine, 87 AD2d 848, 849; United States v Principie, 531 F2d 1132, 1138, cert denied 430 US 905). Moreover, review of the record supports the conclusion that Investigator Freeman’s interpretations of the telephone conversations were reasonable and they confirmed that defendant was probably a drug trafficker. In addition to these conversations, however, the results of pen register activity on defendant’s phone revealed that he had made several phone calls over a one-month period to three known drug dealers. Interpreting these affidavits and exhibits supporting the warrant application in a "commonsense and realistic fashion” (United States v Ventresca, 380 US 102, 108), rather than a "hypertechnical manner” (People v Hanlon, 36 NY2d 549, 559) and paying proper respect to the decision of the issuing Magistrate (see, People v Oden, 36 NY2d 382, 385; Aguilar v Texas, 378 US 108, 111), we cannot state as a matter of law that probable cause was lacking for the issuance of the eavesdropping warrant.

B

Defendant further contends that even if there were probable cause to support the issuance of the eavesdropping warrant, there was an insufficient basis upon which to authorize a search of his residence. Defendant focuses solely upon one item: Investigator Freeman’s statement to Judge Henry that on the morning of June 30, 1984 police surveillance units had seen defendant drive to the Callerame residence, stay there for about 45 minutes and then return to his residence. He contends that this evidence is insufficient to support a finding of probable cause because the conduct observed "was innocuous and as consistent with innocence as with criminal activity” (see, People v Hansen, 38 NY2d 17, 20).

The Magistrate had a good deal more evidence before him, however, in the application for a warrant to search Paul Callerame’s residence and the application supporting surveillance of defendant’s telephone. Under the circumstances, he could incorporate this information into the new warrant application to support a finding of probable cause. Doing so facilitated law enforcement authorities in presenting the lull picture to him effectively and efficiently. The practice has been accepted by some departments of the Appellate Division (see, People v Baris, 116 AD2d 174, supra [4th Dept]; People v Rezey, 107 AD2d 850, 852 [3d Dept]; People v Davis, 93 AD2d 970 [3d Dept]; People v Germaine, 87 AD2d 848, 849, supra [2d Dept]) as well as in other jurisdictions (see, e.g., Commonwealth v Jordan, 397 Mass 494, 492 NE2d 351; Sims v State, 483 So 2d 81 [Fla App]), and in the Federal courts (see, United States v Serao, 367 F2d 347, 350, vacated on other grounds sub nom. Piccioli v United States, 390 US 202). We hold, therefore, that material previously submitted to a Judge may be incorporated by reference in a subsequent warrant application to him so long as the earlier information was given under oath, is either available to the Magistrate or sufficiently fresh in the Magistrate’s memory so that he or she can accurately assess it and it is available in a form which can be reviewed at a later date.

Based upon all the evidence properly before Judge Henry, it is apparent that the decisions of the courts below that the search warrant was based on probable cause has support in the record. First, the conversation between Peter Roth and defendant, intercepted just two days before the search, reveals that defendant had in his possession IVz ounces of cocaine and that he was awaiting the second shipment which would become available as soon as Sterling returned from Florida. Second, a call intercepted later on the afternoon of the 28th indicates that defendant had a motive to acquire a substantial amount of cocaine as soon as possible so that he could fill existing buy orders. The remaining calls between Kennedy, Callerame, Sterling and defendant permitted the reasonable conclusion that the purpose of the meeting at the Callerame residence on the morning of July 30 was to distribute cocaine recently acquired in Florida to meet this demand of defendant’s customers.

Defendant contends, however, that even if probable cause existed to search Callerame’s residence, there was none to establish that evidence of a crime could be found in his residence. This is so, he maintains, because, even if the intercepted conversations are considered, his visit to the Callerame residence could have been completely unrelated to drug activity. He points out that there is no evidence that he obtained cocaine when he visited Callerame’s residence or that after his visit he removed cocaine to his own residence. Whatever cocaine Callerame or Sterling acquired during their trip to Florida could have remained at the Callerame residence.

When the police have probable cause to believe that several individuals are involved in criminal activity and that evidence of the crime is likely to be in the possession of one of them but they lack the necessary information to make one of the perpetrators the most likely possessor of the evidence at a particular time, the law permits a Magistrate to make a finding of probable cause to search the places in the control of one or more of the associates in crime, even though it cannot be said that it is more probable than not that the cocaine will be found at one particular location (see, People v Hearty, 644 P2d 302 [Colo 1982]; Hooks v State, 416 A2d 189 [Del]; see also, United States v Melvin, 596 F2d 492, 497-498, cert denied 444 US 837; 1 LaFave, Search and Seizure § 3.2 [e], at 600-602 [2d ed]). The rule may be different where the fruits of the criminal enterprise are probably located in one of a few locations but the nature of the information is such that a search of each of these locations would intrude upon the rights of individuals in no way involved in the criminal activity under investigation (see, State v Morgan, 376 So 2d 99 [La]; State v Robinette, 270 NW2d 573 [SD]; cf., United States v Olt, 492 F2d 910). However, where each of the prospective places to search is controlled by someone involved in the criminal enterprise, "a magistrate need not determine that the evidence sought is in fact on the premises to be searched [citation omitted] or that the evidence is more likely than not to be found where the search takes place [citation omitted]. [He or she] need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit” (United States v Peacock, 761 F2d 1313, 1315, cert denied 474 US 847). Inasmuch as the State Police had probable cause to believe that defendant and Callerame were engaged in illegal drug trafficking and that drugs could be found in either or both of their homes, the court properly issued a search warrant for defendant’s residence.

C

Defendant next contends that the evidence must be suppressed as a matter of law because Investigator Freeman made statements to the issuing Magistrate which he knew to be false or which he made with reckless disregard for their truth. Defendant’s claim is based upon Investigator Freeman’s mistaken report of 1 of the 19 separate telephone conversations in which defendant participated. The last of the intercepted conversations, identified as call "S”, took place on June 30 at 9:22 a.m., slightly more than two hours before Freeman made the application to search defendant’s residence. In explaining that call to Judge Henry, Freeman stated that defendant had called Paul Callerame and advised Callerame that Sterling would arrive at the Callerame residence in 45 minutes or less. A subsequent review of the transcript of call "S” reveals, however, that although defendant did call Callerame’s house, he did not speak directly with Callerame but spoke with Callerame’s girlfriend, Susan Kennedy. He gave her the information so that she could deliver the message to Callerame.

The burden of proving Freeman’s statement was knowingly false or made in reckless disregard of the truth rested on defendant and he failed to meet that burden (see, Franks v Delaware, 438 US 154, 171; People v Alfinito, 16 NY2d 181, 186). Several calls were made to Callerame’s residence on June 30 and a reading of the transcripts of them reveals that defendant did speak with Callerame and that a meeting of Sterling, Callerame and defendant was arranged for later that morning at Callerame’s residence. Investigator Freeman, working under the exigencies of the short time span between the interception of these calls and the application for the search warrant, apparently did not have a transcript before him and was relaying the information obtained from the various intercepted conversations to Judge Henry from memory. In doing so, he mistakenly described the conversation relating to the meeting on call "S” as between Callerame and defendant. There was no reason to believe Freeman deliberately misled the court on the matter, however, because no benefit was to be gained by reporting that the conversation took place between defendant and Callerame rather than defendant and Kennedy. Whether defendant’s message about the meeting was delivered to Kennedy to relay to Callerame or to Callerame personally was of little consequence. Kennedy lived with Callerame and had knowledge of the drug importation and distribution network and consequently it would have been a reasonable assumption that she would deliver the message to Callerame in any event. The important fact was that the conversation gave probable cause to believe the drugs were in Callerame’s house and would be distributed among the parties to the transaction that morning. Thus, although Freeman’s statement about call "S” was inaccurate, it is of no legal consequence.

Even if the statement was knowingly false, however, the remedy is to delete the statement and review the sufficiency of the remaining evidence. When that is done and the conversation contained on call "S” is not considered, the warrant application contains sufficient evidence to support probable cause and suppression is not required (see, Franks v Delaware, 438 US 154, 171-172, supra; see also, People v Bartolomeo, 53 NY2d 225, 235).

D

Finally, defendant challenges the court’s procedure in ruling on the suppression motion.

Defendant’s omnibus motion to suppress the physical evidence and dismiss the indictment initially came before Ontario County Court Judge Reed. The People, relying on People v Romney (77 AD2d 482), requested him to transfer the motion to Judge Henry to determine defendant’s claims that probable cause was lacking for the issuance of the eavesdropping and search warrants. In Romney (supra), the Appellate Division, Fourth Department, held that a Judge of coordinate jurisdiction should not review the probable cause determination of an issuing Judge. Inasmuch as Judge Reed was bound by this decision, he granted the People’s application and transferred the probable cause determinations to Judge Henry. After Judge Henry concluded that probable cause existed for issuance of both the search warrant and the eavesdropping warrant, he transferred the omnibus motion back to Judge Reed, who then ruled on the remainder of it.

In People v Guerra (65 NY2d 60, 63) we expressly rejected the limitation on review of suppression motions set forth in Romney. Our decision does not mandate reversal in this case, however, because although we held in Guerra that a Judge has the authority and right to rule on the propriety of a warrant issued by a Judge of coordinate jurisdiction, we did not hold that the issuing Judge lacks the power to review a warrant that he has issued, or even that he should avoid doing so (cf., People v Versace, 73 AD2d 304, 307). Nothing in the statute prevents the Judge issuing a warrant from entertaining a motion to suppress evidence seized pursuant to it (see, CPL 710.50 [1]; 700.05 [4]), and we see no reason for a rule prohibiting him from doing so. There is no basis to conclude that such Judges fail to give suppression motions anything less than fair and impartial consideration and further review is available by the Appellate Division which possesses the same power in such matters as does the suppression court (CPL 470.15).

Insofar as defendant’s argument is based on a theory that it was reversible error for Judge Reed to have transferred the proceeding, rather than because of anything done by Judge Henry, it must rest upon a showing of prejudice and none is made.

We have examined defendant’s remaining arguments and find them to be either unpreserved or without merit.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone taking no part.

Order affirmed.