author: Wachtler, J. Chief Judge Cooke Fuchsberg, J.

text:
    In the Matter of Westchester Rockland Newspapers, Inc., Appellant, v Russell R. Leggett, as a Judge of the Westchester County Court, et al., Respondents.
    Argued October 16, 1979;
    decided November 20, 1979

      POINTS OF COUNSEL

      Henry J. Smith, William F. Macreery and Gerald Nolan for appellant.
    I. The direction and order of Judge Leggett deprived Westchester Rockland Newspapers of its constitutional right to a public trial and imposed unconstitutional restraints upon freedom of the press. (People v Hinton, 31 NY2d 71, 410 US 911; United States v American Radiator & Std. Sanitary Corp., 274 F Supp 790; Craig v Harney, 331 US 367; Matter of Hansen v Kelly, 38 AD2d 722; Matter of Gannett Co. v Mark, 54 AD2d 818; Singer v United States, 380 US 24; People v Holder, 70 Misc 2d 31; Matter of Oliver v Postel, 30 NY2d 171; Duncan v Louisiana, 391 US 145; Matter of Hearst Corp. v Cholakis, 54 AD2d 592.) II. Application to this case of the exceptions to open judicial proceedings provided by section 4 of the Judiciary Law would render such section unconstitutional. (People v Jelke, 308 NY 56; United States v Dennis, 183 F2d 201, 341 US 494; Nebraska Press Assn. v Stuart, 427 US 539.) III. The direction and order of Judge Leggett deprived appellant of its rights without due process of law. (Carroll v Princess Anne, 393 US 175; Matter of New York Times v Starkey, 51 AD2d 60; People v Morales, 53 AD2d 517; Matter of Hearst Corp. v Cholakis, 54 AD2d 592; United States v Schiavo, 504 F2d 1.) IV. Substantial constitutional questions are directly involved on the present appeal. (Matter

      of Jones v Berman, 37 NY2d 42; East Meadow Community Concerts Assn. v Board of Educ., 18 NY2d 129; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368; United States ex rel. Lloyd v Vincent, 520 F2d 1272; People v Hinton, 31 NY2d 71, 410 US 911.)

      Robert Abrams, Attorney-General (Joseph W. Henneberry and George D. Zuckerman of counsel), for Russell R. Leggett, respondent.
    I. The issues raised in this appeal are moot and do not rise to the level of constitutional dimension. The issues raised have been reviewed and resolved in cases of striking similarity. (Roche v Lamb, 33 AD2d 1102; Nassau Trust Co. v Filderman, 52 AD2d 588; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368; Matter of United Press Assns. v Valente, 308 NY 71.) II. Justice Leggett properly exercised his discretion pursuant to section 4 of the Judiciary Law and well-established case law. (People v Jelke, 308 NY 56; People v Hinton, 31 NY2d 71, 410 US 911; United States ex rel. Lloyd v Vincent, 520 F2d 1272.) III. Westchester Rockland Newspapers was not deprived of its constitutional right to a public trial. (Estes v Texas, 381 US 532; Matter of United Press Assns. v Valente, 308 NY 71; Matter of Gannett Co. v De Pasquale, 43 NY2d 370; Nebraska Press Assn. v Stuart, 427 US 539; Matter of Oliver v Postel, 30 NY2d 171; Oklahoma Pub. Co. v District Ct., 430 US 308; United States v Cianfrani, 573 F2d 835.)
   OPINION OF THE COURT

Wachtler, J.

The petitioner, Westchester Rockland Newspapers, Inc., commenced this proceeding to vacate an order which excluded the public and the press from a pretrial mental competency hearing in a criminal case in which the accused was charged with rape. The order had been entered, at the request of the accused, by the respondent, Judge Russell R. Leggett, who presided at the hearing. The Appellate Division upheld the order and dismissed the petition. Westchester Rockland Newspapers, Inc., has now appealed to this court claiming that the order closing the hearing violates its right to hear and report matters of public interest and concern, as guaranteed by various statutory and constitutional provisions.

The case, once again, imposes upon the courts the obligation of reconciling the competing rights of the accused to a fair trial free of damaging pretrial publicity, with the right of the public to be informed, particularly by the press, of what takes place in the courts. It is a sequel to Matter of Gannett Co. v De Pasquale (43 NY2d 370) in which this court, and the United States Supreme Court (443 US 368, 99 S Ct 2898), recently held that a court may, upon application by the accused, close a pretrial suppression hearing in order to assure a fair trial. Here, however, we are concerned with a pretrial competency hearing which, in purpose, scope and potential impact on the rights of the accused is different from a pretrial suppression hearing.

This case began in 1976. In the summer and fall of that year several small girls and young women were raped or sexually assaulted in Westchester County. The crimes were reported by the local media, including the petitioner’s newspaper, the Reporter Dispatch. In November, 1976 the police arrested Alexander Ver rone who was later indicted for the crimes. After Verrone had been arraigned and held without bail, his attorney served notice that he intended to raise insanity as a defense at trial.

Defense counsel also applied to have the court determine whether the defendant was mentally fit to stand trial (CPU art 730). Preliminarily the court directed that the defendant be examined professionally. When the court received the report of the examining physicians, which apparently indicated that the defendant was not competent to stand trial, the court ordered that a hearing be held.

The hearing commenced on March 27, 1978. Several reporters, including one from the petitioner’s newspaper, were present in the courtroom. But before any testimony was taken defense counsel made an oral application to have the public and the press excluded from the courtroom throughout the hearing. He noted that the case, including all court proceedings, had been regularly reported in the media and claimed that pretrial reporting of the defendant’s mental condition might prejudice his trial. He urged that if he raised the insanity defense at trial, the doctor’s reports and testimony admitted at the hearing "may become relevant during the trial.” He also argued that if he later chose not to pursue the insanity issue at trial, the public, and thus potential jurors, may learn that the defendant has a mental problem although such proof might otherwise be inadmissible at trial. The District Attorney did not oppose the application. He stated, however, that he did not believe that the insanity issue would "come up” at the hearing.

The court, the District Attorney and defense counsel then withdrew from the courtroom and continued the argument on the motion out of the hearing of the public. Afterwards the court returned to the courtroom and announced that the defense motion would be granted for the reasons stated by counsel in open court, supported by details revealed in camera. The court, however, refused to disclose these details because that "would be self-defeating”. As a second ground for closing the hearing the court relied on section 4 of the Judiciary Law and stated that this section authorized "the Court to close any case that involves sexual charges.”

The newspaper reporters immediately protested this ruling. The following day petitioner’s reporter returned with counsel to have the court vacate the closure order on the ground that it violated the constitutional (US Const, 1st, 6th Arndts; and NY Const, art I, § 8) and statutory rights (Judiciary Law, § 4) of the public and the press. Although the court entertained extended argument, both at the time of the original protest and when counsel appeared, he adhered to the original decision. The public, including the press, could not attend the hearing, nor were they permitted access to transcripts of the proceedings from which they had been excluded.

The petitioners then sought to have the order set aside by commencing this article 78 proceeding in the Appellate Division. While this proceeding was pending, however, the competency hearing was completed. The Appellate Division dismissed the petition on the ground that (1) the matter was now moot, and even if deemed not to be moot (2) the order closing the proceedings "constituted a proper exercise of discretion (see Matter of Gannett Co. v De Pasquale, 43 NY2d 370).”

Although the competency hearing has been concluded, the court’s order still precludes the petitioner from gaining access to the transcripts of those portions of the proceedings which were held behind closed doors. Thus the petition is not moot to the extent that it seeks to gain access to those transcripts. In addition, in cases such as this, we have traditionally retained jurisdiction, despite a claim of mootness, because of the importance of the question involved, the possibility of recurrence, and the fact that orders of this nature quickly expire and thus typically evade review (see, e.g., Matter of Gannett Co. v De Pasquale, supra, at p 376).

In Gannett Co. v De Pasquale (443 US 368, 99 S Ct 2898, supra) the United States Supreme Court held that the Sixth Amendment guarantee of a public trial belonged to the defendant alone, and did not insure to the public and the press an independent right of access to pretrial proceedings. Under New York law, however, the public trial guarantee is not so narrowly viewed.

In this State we have recognized that open court proceedings serve several purposes. First, "contemporaneous review in the forum of public opinion” (Matter of Oliver, 333 US 257, 270) serves to protect the accused from "secret inquisitional techniques” and unjust persecution by public officials and "goes far toward insuring him the fair trial to which he is entitled” (People v Jelke, 308 NY 56, 62). Thus, like the Sixth Amendment, our statutes have provided that the accused is entitled to a public trial (Civil Rights Law, § 12; former Code Crim Pro, § 8; People v Jelke, supra; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 376, supra).

The public, of course, is not only concerned with seeing that the accused is fairly treated. The public also has an interest in seeing that there is justice for the accuser — the police and prosecutors who must enforce the law, and the victims of crime who suffer when the law is not enforced with vigor and impartiality. And when justice has been done, public awareness "serve[s] to instill a sense of public trust in our judicial process” (People v Hinton, 31 NY2d 71, 73) by assuring the innocent and impressing the guilty with the power of the rule of law. Justice must not only be done; it must be perceived as being done. Thus section 4 of the Judiciary Law provides: "The sittings of every court within this state shall be public, and every citizen may freely attend the same”. This we have held is a right which may be asserted by the public and the press in civil (cf. Lee v Brooklyn Union Pub. Co., 209 NY 245, 248, 249) and criminal cases (Matter of Gannett Co. v De Pasquale, 43 NY2d 370, supra; People v Jones, 47 NY2d 409; but cf. Matter of United Press Assns. v Valente, 308 NY 71, where the question was not decided by a majority of the court; see, also, Matter of Oliver v Postel, 30 NY2d 171, 179).

But that is only part of the problem. We must also recognize that publicity does not always insure the defendant a fair trial and, in fact, extensive publicity often has the opposite effect of endangering the defendant’s right to a fair trial in the community (see, e.g., Sheppard v Maxwell, 384 US 333). Indeed "the trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Sheppard v. Maxwell, supra” (Gannett Co. v De Pasquale, 443 US 368, 99 S Ct 2898, 2904, supra). This is essentially a question of degree. Fairness to the accused does not mean that the community should be totally ignorant of his activities, or that he is entitled to a jury composed only of those who have no knowledge of the case or his character and prior involvements with the law (see, e.g., Murphy v Florida, 421 US 794, 799; People v Moore, 42 NY2d 421, 431). But the accused should not be required to face trial in open court only after he has already been convicted in a "trial by newspaper”, particularly when the newspaper accounts include highly prejudicial evidence which would be inadmissible at trial (Sheppard v Maxwell, supra).

Thus the right of the public and the press to attend court proceedings is not absolute. All court proceedings are presumptively open to the public, but when this would jeopardize the right of the accused to a fair trial, the competing interests must be balanced and reconciled as far as possible.

Our decision in Gannett struck the balance in favor of the accused because of the grave threat that suppressed evidence, if publicly disclosed prior to trial, would virtually eliminate the possibility that the accused would receive a fair trial in a highly publicized case. The very purpose of pretrial suppression hearings is to determine whether certain evidence should be submitted to the jury at trial. They usually involve the admissibility of confession's, eyewitness identifications, contraband, fruits or evidence of crime, or wiretap recordings (see CPL 710.20) — the type of proof which may often be considered extremely persuasive, if not conclusive evidence of guilt. Indeed we have recognized that "nothing could be more conclusive evidence of the defendant’s guilt than a signed confession” (People v Jones, 47 NY2d 528, 534).

Because this type of proof is so difficult, and in some cases impossible, for jurors to forget or ignore once it has been revealed, the law has provided that any question concerning its admissibility should be decided in a separate hearing out of the presence of the jury (see, e.g., Jackson v Denno, 378 US 368; People v Huntley, 15 NY2d 72). And recognizing the startling effect that admission of this type of proof is likely to have on the defendant’s case, the law in this State also provides that the hearing be held prior to trial so that the defendant may know in advance the risks he faces, and thus be able to prepare his case accordingly (People v Briggs, 38 NY2d 319, 323; People v Spruille, 47 NY2d 869). In short, pretrial suppression hearings are often a potent source for the revelation of evidence which is both highly prejudicial to the defendant’s case and not properly admissible at trial.

If these hearings were open to the public and the press in a well-publicized case, it is most likely that the substance of the evidence would be disclosed to the community from which the jurors would be drawn, even though the court may ultimately rule that the evidence should not be submitted to the jury at trial. This would not only destroy the purpose for which the hearing was held, but would, perversely, have the very opposite effect of that intended and desired. Instead of shielding the jurors from evidence they should not hear, the public airing at the pretrial suppression hearing would serve to broadcast the evidence to most, if not all potential jurors. Because of the obvious threat that public attendance at these hearings might pose to the defendant’s right to a fair trial and the integrity and effectiveness of the judicial process in a highly publicized case, we held in Gannett that the defendant could request that the hearing be closed to the public and that the court did not lack the inherent power to grant the request if that was necessary to preserve the defendant’s right to a fair trial in the particular case.

But we did not mean to suggest that closure would be necessary or even appropriate in all pretrial proceedings. There would, for instance, be little justification for holding a private arraignment (cf. Matter of Rudd v Hazard, 266 NY 302). A public reading of the charges and the defendant’s plea will rarely help the defendant’s case. But not every disclosure about the case and the defendant’s involvement in it jeopardizes his right to a fair trial, even though he may prefer, for strategic reasons, that there be no publicity prior to trial of anything which is not unequivocally beneficial to his case (see, e.g., Murphy v Florida, 421 US 794, supra; People v Moore, 42 NY2d 421). Fairness to the accused does not require that his appearance at the trial should come as a complete surprise to the community.

In any criminal case there are bound to be numerous pretrial proceedings. These proceedings often consume as much time as the trial. In many criminal cases these proceedings eliminate the need for a trial because either the charges are dismissed or the determination at the hearing substantially affects or destroys a party’s chance of succeeding at trial (see, e.g., People v Grant, 45 NY2d 366, 379; Matter of Forte v Supreme Ct. of State of N. Y., 48 NY2d 179). At the present time, in fact in most criminal cases, there are only pretrial proceedings. Thus if the public is routinely excluded from all proceedings prior to trial, most of the work of the criminal courts will be done behind closed doors.

The right of the public to attend court proceedings generally includes pretrial proceedings in criminal cases (Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 376, 377, supra). Although evidence submitted at these proceedings will not always benefit the defendant’s case, it generally will not involve a possibly inadmissible confession or other legal bombshell which would hopelessly jeopardize his right to a fair trial if made available to the public. Certainly in the vast majority of commonplace criminal cases, where there is no publicity, permitting the public to attend pretrial hearings would involve little risk of widespread dissemination of inadmissible evidence prior to trial.

Even when a case has attracted public attention, public attendance at a pretrial competency hearing would not ordinarily generate the type of adverse pretrial publicity which could impair the defendant’s right to a fair trial. The purpose of such a hearing is simply to determine whether the accused is mentally competent to stand trial (see, e.g., Pitler, New York Criminal Practice Under the CPL, pp 330-334). The inquiry narrowly focuses on the defendant’s present mental capacity to understand the proceedings against him and to assist in his own defense (CPL 730.10, subd 1). The " 'test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding— and whether he has a rational as well as factual understanding of the proceedings against him’ ” (Dusky v United States, 362 US 402; Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 730.10, p 332; People v Francabandera, 33 NY2d 429, 436).

This, of course, is not the same question that the jury may be called upon to decide if the defendant raises an insanity defense at trial. At the hearing the defendant’s present mental capacity is in issue; while at the trial it is the defendant’s mental state at the time of the crime which controls. More important, a completely different standard applies (see Penal Law, § 30.05, subd 1). "Determinations of incompetency to stand trial, lack of criminal responsibility because of mental disease or defect, and mental illness for purposes of civil commitment are independent concepts” (Pitler, op. cit., p 330).

Evidence relevant and admissible to establish the defendant’s capacity to understand the legal proceedings and to assist his attorney would ordinarily reveal little or nothing about his possible guilt of the crimes charged. Nor is it foreseeable that public disclosure of the proof would frustrate the purpose of such a hearing. Thus even in a case which has received some publicity the court cannot assume that public attendance at a competency hearing will necessarily jeopardize the defendant’s right to a fair trial. If there is, in fact, such a risk in a particular case, the defendant has the burden of establishing it.

Similarly the fact that the defendant may be charged with sexual offenses does not mean that the hearing should automatically be closed to the public. It is true, of course, that section 4 of the Judiciary Law grants the public the right to attend all court proceedings "except that in all proceedings and trials in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, sodomy, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein.” The exception, however, must be narrowly construed (People v Jelke, 308 NY 56, 65, supra). It applies only when there will be testimony concerning the details of the specific acts mentioned in the statute and then only when the commission of one or more of the specified acts is the issue to be decided (People v Jelke, supra, at pp 64-65). The purpose of the exception is to grant the Judge the "power to refuse to turn his courtroom into a peep show” (United Press Assns. v Valente, 308 NY 71, 87, supra [Desmond, J., concurring]). It is not aimed at shielding the public from testimony of all mental disorders which may have a sexual basis. Surely the details of the sexual acts, which were considered offensive, are not likely to be relevant in determining the defendant’s present ability to understand the proceedings and assist counsel at the trial. Here, too, the defendant must show that evidence relevant and admissible at the hearing would come within the statutory exception.

Initially the motion to exclude the public from the pretrial proceeding must be made on the record, in open court. In support of the motion the defendant must demonstrate to the court a strong likelihood that evidence relevant and admissible at this particular hearing in this case would prejudice the defendant’s trial if it were disclosed to potential jurors or would involve sordid matters expressly covered by section 4 of the Judiciary Law. If, during the course of the argument, it becomes necessary for counsel to introduce or tender specified items of proof, the public disclosure of which would create the very prejudice sought to be avoided or would itself involve disclosure of such sordid matters, defense counsel may further request that this portion of the argument be continued in camera, in the presence of counsel for the defendant and the prosecutor but out of the hearing of the public. In any event, all proceedings on the motion, whether in open court or in camera, should be recorded for appellate review.

Should the court decide that it is necessary to close the hearing in order to protect the defendant’s rights or pursuant to section 4 of the Judiciary Law, the reasons for closure shall be given in open court. The court, of course, shall be cautious in this pronouncement lest the expressed reasons create the prejudice or the disclosure sought to be avoided.

Although that procedure was properly followed in this case, the defendant failed to show sufficient basis for the ruling requested. There was no showing that there would be testimony describing the sexual acts specified in the statute (Judiciary Law, § 4). Nor was there any showing of need for the court to exercise its inherent power to exclude the public from the hearing.

Proof that the defendant may have a mental defect is not generally considered evidence of guilt, and, in fact, is often asserted by the defendant to avoid or mitigate criminal responsibility (see, e.g., Penal Law, §§ 30.05, 125.20, subd 2). And, as indicated, in this case the defendant had served notice that he intended to do so at the trial. Of course he may later choose not to make his mental condition an issue at the trial. But when he has given the notice, and later requests a competency examination, which was the subject of several newspaper accounts, it is too late for the defendant to claim that the hearing should be closed to the public in order to prevent disclosure of the fact that he may have a mental problem — even assuming that type of pretrial publicity could be said to jeopardize his right to a fair trial. He may have a legitimate interest in preventing public disclosure of certain details of his mental condition and the basis for the expert opinion (see, e.g., Pitler, op. tit., pp 337-339), but that would justify excluding the public only from as much of the hearing as covered those points and not from the entire hearing (cf. People v Jelke, supra, at p 64), as was done in this case. In sum, there was no sufficient basis to deny the public the right to attend the proceeding, as they are entitled to do by statute (Judiciary Law, § 4).

In light of this disposition, it is unnecessary to consider the petitioner’s alternative arguments that its right of access to court proceedings is guaranteed by the First Amendment and the similar provisions of the State Constitution. We would note, however, that this is not an open question in this State. In United Press Assns. v Valente (308 NY 71, 77, 87, supra) all members of the court, although divided on other points, unanimously held that the public and the press had no constitutional right of access to court proceedings under either the First Amendment or the similar provision in the State Constitution (art I, § 8). Later in Matter of Oliver v Postel (30 NY2d 171, 179, supra) we declined to reconsider that position because, as here, it was unnecessary to do so. The Supreme Court decisions do not require a contrary result. Indeed in the most recent case to pose the issue the Supreme Court expressly refused to decide it (Gannett Co. v De Pasquale, 443 US 368, 99 S Ct 2898, 2912, supra).

It should be emphasized however, in response to the concurring opinions, that any right of access to court proceedings accorded to the public and the press must also take into account the equally important rights of the accused (see, e.g., Meyer, The Most Fundamental of All Freedoms, 2 Crim Law Bull, No. 3, p 26; Meyer, Justice and the News Media: A Reply And A Challenge, 3 Trial, No. 2, p 38; Meyer, News Reporting and Fair Trial, 22 Okla L Rev 135). Complete freedom to speak and publish at will is, of course, the ideal and essential limitations on that freedom should be few and carefully scrutinized. But the true measure of our society will not be judged by the freedom we grant to our great institutions as much as by the protection we provide for society’s lowliest member. And none are more lowly — none more subject to potential abuse — and none with more at stake than those who have been indicted and face criminal prosecution in our courts. For them, freedom and fair trial are not abstractions.

Thus recognition of a public right of access to court proceedings does not mean that the defendant’s right to a fair trial assumes a secondary role. Even if the public’s right were founded on the First Amendment, it could not serve to diminish the rights of the accused, for the primary purpose of the Bill of Rights and the corresponding provisions of the State Constitution is to insure the individual, particularly the unpopular individual, a measure of protection against oppression by a majority. Nor should the defendant’s right to a fair trial be contingent on the surrender of other rights guaranteed to the accused, as the concurring opinions would require. The defendant should not be placed in a position where he will have to submit to a continuance at the expense of his right to a speedy trial, or to a change of venue which would require a waiver of his fundamental right to a trial in the vicinage by a jury of his peers (cf. People v Taylor, 39 NY2d 649; People v Goldswer, 39 NY2d 656). The suggestion that sequestration may serve as an alternative to closure is impractical when a pretrial proceeding is involved. Generally at that stage there are no jurors to sequester and to delay the hearing until the jury has been, or is about to be drawn, would deprive the accused, and often the prosecutor, of the benefit of a pretrial ruling — that is, advance warning and time to prepare for trial on matters essential to the case.

On the other hand, it should not be assumed that the public interest which reporting fosters cannot be preserved by making the transcript available to the media as soon as the danger of prejudice to the defendant has passed (see Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 381, supra). Thus in those rare cases where there is a risk that public attendance at all or part of a pretrial hearing will jeopardize the defendant’s right to a fair trial in the community, delaying the release of the prejudicial information would more closely conform to the Bill of Rights than would the alternatives proposed by the concurring opinions.

Accordingly, the judgment of the Appellate Division should be reversed and the petition granted to the extent of directing the release of the transcripts of the competency hearing.

Chief Judge Cooke

(concurring). The decision to close any pretrial hearing at the request of a criminal defendant is one which should be made only in extraordinary circumstances. I write briefly to indicate my views as to what the proper standards should be when such a request is made.

Preliminarily, at least for present purposes, it has been declared that the public is possessed of no inherent Sixth Amendment right to attend pretrial criminal hearings: the constitutional right to a public trial is that of the defendant (Gannett Co. v De Pasquale, 443 US 368, 99 S Ct 2898). It is unnecessary, however, to address the difficult issue of whether the public, and by inclusion the press, is vested with a First Amendment right of access to these proceedings (compare id., at pp 2914-2917 [Powell, J., concurring], with id., at p 2918 Rehnquist, J., concurring], and United Press Assns. v Valente, 308 NY 71). For in this State, the answer to this perplexing problem has been supplied by our Legislature.

Little need be said here about the benefits which redound as a result of open judicial proceedings — both to the criminal defendant and the public at large. Public proceedings protect the rights of the defendant by safeguarding against attempts to employ courts as instruments of persecution (see People v Jones, 47 NY2d 409, 413, cert den 439 US 846). And, in a larger sense, public scrutiny of all involved in the criminal justice system serves at once as a deterrent to partial justice and fosters a sense of confidence and respect on the part of the public in that system. In short, open judicial proceedings serve "to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice” (Cox Broadcasting Corp. v Cohn, 420 US 469, 492).

That this long-standing tradition of open public trials is firmly rooted in the history of this State, from colonial times until the present day, is beyond dispute (see 1 Holdsworth, History of English Law, 7-24; L 1876, ch 448, tit I, art 2, § 5; L 1879, ch 210). Thus, in clear and explicit terms, the Legislature has commanded that, "[t]he sittings of every court within this state shall be public, and every citizen may freely attend the same” (Judiciary Law, § 4 [emphasis supplied]). That is not to say, of course, that the rule of section 4 is without exception. Indeed, the statute itself excepts from its ambit certain trials whose subject matter may offend public sensibilities or unreasonably invade the privacy rights of witnesses (see People v Jelke, 308 NY 56). In other instances, public necessity itself may command closing of the courtroom doors (see, e.g., People v Hinton, 31 NY2d 71, cert den 410 US 911).

But cases such as the present one, in which the defendant requests what is, in essence, a private trial, implicate the rights of the public and the defendant to such an extent that both must be carefully delineated. No one can dispute that a party to any judicial proceeding, as a matter of fundamental fairness at the very least and from a constitutional perspective as well, is entitled to a trial in which the trier of fact considers only that evidence presented to it. Especially when a person’s liberty is at stake, courts must be ever vigilant to assure that prejudicial or spurious information does not infect the proceeding (see Sheppard v Maxwell, 384 US 333). By the same token, however, merely because a pending prosecution has aroused public interest does not lead inexorably to the conclusion that the fair trial rights of the defendant would be irrevocably prejudiced, or even jeopardized, by reports of what has transpired in pretrial proceedings. Such a conclusion would result in an unfortunate paradox: the greater the interest in a particular prosecution, the more apt the defendant to claim the possibility of prejudice and, concomitantly, the more likely that the proceeding will be isolated from public scrutiny.

It is to this situation, and others like it, that section 4 of the Judiciary Law is addressed. By its plain terms, the statute mandates that any judicial proceeding, whether it be a criminal or civil trial, an arraignment, a sentencing proceeding or a pretrial hearing, be presumptively open to the public (majority opn, at p 438; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 376, affd 443 US 368, 99 S Ct 2898). Those who seek to curtail this right bear a heavy burden of, demonstrating that there exists a high degree of probability that defendant’s right to a fair trial would be jeopardized to such an extent that dissemination of prejudicial pretrial publicity would result in reversal of any conviction thereafter obtained. In making this determination, moreover, the court must always bear in mind that an open judicial proceeding is a necessary correlative to a free and open society. Thus, before any proceeding is closed, the proponent of the closure order must establish that there exist no other less restrictive protective measures available to assure a fair trial. In short, the right of the public to attend judicial proceedings ends only where the defendant’s right to trial by an impartial jury is unalterably threatened.

Pretrial publicity, in and of itself, does not often endanger the right of a criminal defendant to receive a fair trial (see, e.g., Murphy v Florida, 421 US 794). As the majority pointedly notes and as this case graphically illustrates, information disclosed at many pretrial proceedings will have no bearing on what is subsequently revealed at trial (at pp 439-442). Indeed, from a purely analytical viewpoint, even pretrial suppression hearings pose little danger to a defendant’s right to a fair trial. For at these hearings it is the circumstances surrounding the making of a statement or the seizure of evidence that is principally in issue rather than the substance of the statement or nature of the evidence itself.

None of this is meant to detract from the duty of the trial court to safeguard the fair trial rights of a defendant. It would be extremely naivé to maintain that pretrial publicity may never transgress a defendant’s Sixth Amendment rights (e.g., Sheppard v Maxwell, 384 US 333, supra; Irvin v Dowd, 366 US 717). The nature and extent of the information already disseminated to the public is one factor to be considered by the court in deciding whether to close a hearing. The proponent of the motion must demonstrate the impact this information will have on the jury pool. This, of course, involves considerations of the size of the pool, the extent of media coverage and the effect of that coverage on the public at large. But even if all of these factors would lead to the conclusion that reversal of any conviction is all but inevitable, no closure order should be entered until all possible alternatives to dispel prejudice are explored. These include, of course, change of venue, continuance, venire, sequestration of the jury and an adequate number of peremptory challenges to name but a few (see ABA Project on Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, Standard, § 8-3.2 (App Draft, 1978); Nebraska Press Assn. v Stuart, 427 US 539, 562-565; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 387 [dissenting opn], supra). It is only where the proponent of the closure motion establishes that these alternatives, whether individually or in combination, do not diminish the strong likelihood that open judicial proceedings will result in reversal, may the right of the public to attend the sitting of "every court within this state” (Judiciary Law, § 4) be overridden.

Fuchsberg, J.

(concurring). I agree that the closure order

should be invalidated. However, I depart from the majority in its refusal to ground our decision at least in part upon First Amendment principles and instead rely on what I view as artificial distinctions between various kinds of pretrial proceedings. As I see it, the decision today leaves us in the position of having to set forth discrete rules for every type of judicial proceeding in which the exercise of judicial discretion leads to a restriction on public access. The consequence is to leave Trial Judges and litigants at sea and without a clear beacon from which to chart their course through the cross currents of this recurring problem.

Moreover, as a practical matter, I am not convinced that the standards established by today’s decision afford adequate protection to the public’s right of access to judicial proceedings. By leaving the interest in open court proceedings without constitutional support, it is made subservient to the dominant, even if not exclusive, role of the Sixth Amendment. The result may very well be a whittling away of the right of public access. Indeed, according to the latest available statistics, from the date of the Supreme Court’s decision in Gannett Co. v De Pasquale (443 US 368, 99 S Ct 2898), July 2, 1979, until the beginning of October, 1979, closure motions were made in the course of 75 criminal proceedings across the Nation and in 44 of those cases the closures were enforced or upheld on appeal (Reporters Committee for Freedom of the Press, Washington, DC; see, also, New York Times, Oct. 13, 1979, p 21, col 1). Nor were the closures confined to suppression hearings. They extended to other pretrial proceedings, such as probable cause hearings and voir dire (see Rapid City Journal Co. v Circuit Ct., 283 NW2d 563 [SD]) as well, for instance, as posttrial proceedings relating to sentencing (but see United States v Fiumara, 605 F2d 116). More ominous still is the fact that, in several cases, the trial itself was closed (see Richmond Newspapers v Commonwealth of Virginia, — Va — [Va Supreme Ct, July 9, 1979], cert granted 444 US 896). There is, therefore, an urgent need for a firm guarantee of openness in criminal proceedings.

At this point, I also pause to note that, although the Supreme Court’s Gannett decision held that the right to invoke the Sixth Amendment’s public trial guarantee belonged primarily to a defendant in a criminal proceeding (443 US 368, 99 S Ct 2898, 2905-2911, affg 43 NY2d 370), that decision does not compel the conclusion that First Amendment interests are irrelevant to our considerations in this case. Rather, in essence, Gannett did no more than carefully skirt the First Amendment issue.

Delivering the opinion of the court in Gannett, Justice Stewart, far from writing off the First Amendment, simply stated, "even assuming, arguendo, that the First and Fourteenth Amendments may guarantee such access in some situations, a question we do not decide, this putative right was given all appropriate deference” (443 US 368,99 S Ct, at p 2912). Though Chief Justice Berger wrote separately to emphasize that a pretrial rather than a trial proceeding was involved (443 US 368, 99 S Ct, at p 2913), he too joined in this opinion. Indeed, the only opinions to directly address the First Amendment question were the separate concurrences of Justices Powell and Rehnquist, who came to antithetical positions. Justice Powell not only indicated that the public and the press did possess a protected First Amendment interest, but made the point that it had been adequately respected at the trial level (443 US 368, 99 S Ct, at pp 2914-2917); contrariwise, Justice Rehnquist took the occasion to opine that the court had "repeatedly * * * held that there is no First Amendment right of access in the public or the press to judicial or other governmental proceedings” (443 US 368, 99 S Ct, at p 2918). Finally, the four dissenting Justices, in an opinion by Justice Blackmun, elected to meet the plurality squarely on its Sixth Amendment grounds alone; but, while they briefly acknowledged that the court had not previously based its determinations of disputes over access to governmental information on the First Amendment, the dissenters apparently did not view the case an appropriate vehicle for the exploration of the more untracked terrain in which both First and Sixth Amendment interests can be said to reside (443 US 368, 99 S Ct, at p 2919).

On this box score — one Justice for reliance on the First Amendment, one Justice against such reliance and seven varyingly noncommittal — the decision furnishes little, if any, guidance on the role the First Amendment should play in the present case. It certainly does not warrant abdication of our own responsibilities in an area that is not only as important but as unsettled as this one (see, e.g., NY Const, art I, § 8; Civil Rights Law, § 12; CPL 30.20, subd 1; Judiciary Law, § 4).

For that matter, what I here make express, I deem implicit in the majority’s own position. Since the defendant himself willingly waived the right to be tried publicly, I would read the caution that the majority here counsels Trial Judges to employ as itself denoting a great reluctance to tread upon the prerogatives of the public and the press as observers in a judicial proceeding. More directly stated, because the "right to know” about the content as well as the conduct of such proceedings looms so large in the scheme of the rights essential for self-government in a democracy, it is deserving of constitutional recognition under the First Amendment (see Meiklejohn, Free Speech and Its Relation to Self-Government, p 26; Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv L Rev 1899).

Time and again it has been said that public scrutiny of the functioning of the courts, as with that of the legislative and the executive branches of our governments, serves as an effective means of insuring that Judges and prosecutors — officials invested with the public’s trust — perform responsibly and not arbitrarily (Sheppard v Maxwell, 384 US 333, 350; see Cox Broadcasting Corp. v Cohn, 420 US 469, 492; Mills v Alabama, 384 US 214, 218-219). To this end, it has been emphasized that "[a] trial is a public event. What transpires in the court room is public property * * * There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it” (Craig v Harney, 331 US 367, 374).

But, apart from this, the openness of a judicial proceeding, especially a criminal one, is itself valuable in reinforcing the integrity of our system of justice and maintaining public confidence in its institutions. As we noted only recently, "the concept of a secret trial is anathema to the social and political philosophy which motivates our society” (People v Jones, 47 NY2d 409, 413, cert den 439 US 846; see Matter of Oliver, 333 US 257, 268). And, access to the processes by which justice is dispensed tends to facilitate public education about those processes themselves as well as about the vital issues that they often address. Indeed, perhaps more apt today than ever before is De Tocqueville’s observation that "hardly a political question in the United States * * * does not sooner or later turn into a judicial one” (De Tocqueville, Democracy in America [Mayer ed, Lawrence trans, 1969], ch 8, p 270).

This said, it cannot be doubted that the press performs the key role in disseminating to the public information about the judicial process. Because the "man in the street” generally has neither the time nor the inclination to attend trials much less pretrial proceedings, which, because of the prevalence of plea bargaining, most often turn out to be the only judicial proceedings that take place in criminal cases, it falls to the press to furnish the information that the citizen needs to intelligently discharge his civic obligations. For, citizen awareness of the functioning of governmental institutions — one of the prime underpinnings of the First Amendment — depends as a practical matter on the prospect of an inquiring press for its continued validity (Cox Broadcasting Corp. v Cohn, 420 US 469, 491, supra; United States v Cianfrani, 573 F2d 835, 862 [Gibbons, J., concurring]; Note, Right to Attend Criminal Hearings, 78 Col L Rev 1308, 1319).

That this First Amendment interest was infringed in the case before us cannot be questioned. In the first place, unlike Gannett, it cannot be argued that no timely objection to the closure of the pretrial hearing was lodged by a representative of the public (see Gannett Co. v De Pasquale, 443 US 368, 99 S Ct 2898, 2912, 2918-2919, supra). Here, members of the press promptly made known their opposition to the Judge’s ruling excluding the public from the competency proceeding.

More importantly, no colorable claim can be made that the competency proceeding required under CPL article 730, because it was not a "trial”, reflected no matter of public interest. While judicial proceedings admittedly "are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper” (Bridges v California, 314 US 252, 271), it is no less true that the community’s interest in this defendant’s case could easily have been transformed into suspicion and even distrust of the criminal justice process had the decision rendered behind closed doors been one of incompetency to stand trial (cf. Note, 91 Harv L Rev 1899, 1907-1908). Far beyond this, the public was certainly entitled to know firsthand where and how our legal system draws the line between competency and incompetency. Moreover, if a trial had resulted, the testimony adduced at the CPL article 730 hearing would likely bear critically on the defense of insanity. For example, the testimony of medical and psychiatric experts might be relevant in the not unusual circumstance of a defendant whose insanity plea is based on the same or similar mental defect that furnished the grounds for his alleged incompetency. Insofar as the evidence relating to incompetency and insanity overlap, the "right to know” thus subsumes more than merely the ability to obtain information; on a more fundamental level, it carries implications for public confidence in and respect, for the institutions that define the concepts of "guilt” and "innocence”.

Nor was the closure order any less of an infringement on constitutionally protected interests because it took the form of a denial of access rather than a ban on the communicating of information already known, presumptively invalid as a prior restraint (see, generally, New York Times Co. v United States, 403 US 713, 714). The First Amendment respects the right of citizens to enjoy the free flow of information and ideas, a right which necessarily encompasses the correlative rights to receive and to communicate (see Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748, 764-765; cf. People v Remeny, 40 NY2d 527, 533 [concurring opn]). Obviously, without the means to acquire information, the constant stream of thought and discourse may be slowed to an intermittent trickle. Especially is this so where the source has been one historically open to public probing, for its damming up then becomes tantamount to a restriction on both the gathering and the communicating of information.

All of this, of course, is not to say that, waving the banner of the First Amendment, we should ride roughshod over the defendant’s right to a fair trial. In the overwhelming majority of criminal proceedings no serious threat of prejudice will appear; in fewer cases still will the prejudice threaten to be of unmanageable dimensions. In those rare instances in which the First and Sixth Amendment interests compete head-on, an accommodation must be reached. However, because "[fjreedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice” (Pennekamp v Florida, 328 US 331, 347), I would strike the balance only when the probability of ineradicable prejudice remains after an exhaustive consideration of the alternatives to closure.

Among such less restrictive alternatives that may commonly be employed by the Trial Judge are changes of venue or venire, continuances, extensive voir dire and cautionary instructions (see Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 382, 387, supra [Cooke and Fuchsberg, JJ., dissenting]; Nebraska Press Assn. v Stuart, 427 US 539, 563). In this case, the record discloses no such probing examination of any option other than the most extreme, that of closure. And, even were the circumstances of such an order of magnitude as to justify excluding the public and the press from the pretrial hearing, certainly nothing excused the continuing unavailability of the hearing transcript once the defendant had pleaded guilty.

I therefore join with my colleagues in the result. But I do not do so without emphasizing that the rationales on which our respective votes proceed are crucial for what they portend for First Amendment rights. For this is a case in which the reasoning may be more important than the result.

Judges Jasen, Jones and Meyer concur with Judge Wachtler; Chief Judge Cooke and Judge Fuchsberg concur in separate concurring opinions; Judge Gabrielli taking no part.

Appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Oral application for leave to appeal granted. Judgment reversed, with costs, and the petition granted to the extent of directing the release of the transcripts of the competency hearing.

      . It appears that Verrone was found competent to stand trial and subsequently pleaded guilty to the indictment and was sentenced to a term of imprisonment. We have also been informed that he has taken an appeal from the sentence and the finding of competency and that the appeal is still pending in the Appellate Division.

      . [3] Although appellant claims a right of appeal to our court on constitutional grounds, the determination below did not necessarily reach the constitutional issue and thus the appeal must be dismissed. However, in view of the importance of the issue as noted above, we have, on motion of the appellant, granted leave to appeal.

       For example, the court may approve a procedure whereby jury selection and sequestration occurs prior to a suppression hearing.

      . Viewing the press as the agent of the public in these matters does not, as a consequence, entail recognizing a special right of access for the media when the general public has no such right. Supreme Court decisions have refused to interpret the First Amendment to permit the press greater access than is the public’s entitlement (see Houchins v KQED, Inc., 438 US 1, 11-12; Saxbe v Washington Post Co., 417 US 843, 850; Pell v Procunier, 417 US 817, 834 ["newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public”]).

      . Looked at in terms of the deprivation of information occasioned by the closure, the pretrial suppression hearing in Gannett from which the public was permissibly excluded certainly had no less an effect. Nor am I persuaded that pretrial competency hearings may not present the same dangers to a defendant’s Sixth Amendment rights as do suppression hearings. Certainly, at least in terms of impact on the community from which potential jurors will be drawn, an unsuccessful claim of incompetency to stand trial might well be interpreted, rightly or wrongly, as a desperate attempt by the defendant to avoid a trial on the merits and a signal that a subsequent insanity defense, especially one that relies on proof of the same nature, should be similarly discredited. In contrast, most suppression hearings are unlikely to generate the kind of sensationalism that would seriously prejudice a defendant’s fair trial right. In short, it should not be the category of the pretrial proceeding, but instead, the facts and circumstances in the particular case that are determinative.

      . Rather, there not only are obvious limitations on access to the judicial process, as witness the exclusion of the public from the deliberations of Judges and juries, but restrictions may also be imposed, when circumstances warrant, in such matters as those within the purview of section 4 of the Judiciary Law (People v Jelke, 308 NY 56) and, when appropriate, during the testimony of undercover police personnel (People v Hinton, 31 NY2d 71).


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    Lloyd Matott, Respondent, v Charles L. Ward et al., Appellants.
    Argued October 11, 1979;
    decided November 29, 1979

      POINTS OF COUNSEL

      Henry A. Fischer for appellants.
    I. The evidence was insufficient, as a matter of law, to warrant a factual finding that Matott was in fact responding to an emergency call and entitled to the privileges set forth in section 1104 of the Vehicle and Traffic Law. II. It was prejudicial error to allow Matott at trial to amend his pleading so as to enable Matott to attempt to connect the injuries he sustained on September 22, 1977 and the alleged sequela thereof with the accident of March 22, 1973. Further, the evidence introduced in the attempt to make such connection was insufficient to do so as a matter of law. (Quinones v St. Vincents Hosp. of City of N. Y., 20 AD2d 529; Wisniewski v Jem Novelty Corp., 22 AD2d 10; Putnam v Stout, 46 AD2d 812; Ramsey v St. Barnabas Hosp., 57 AD2d 521.) III. It was error for the court to receive evidence that Matott’s cost of doing business subsequent to the accident of March 22, 1973 constituted evidence of personal damages to Matott which could be recovered in this action. (Dunlop Tire & Rubber Corp. v FMC Corp., 53 AD2d 150; Macy v New York World-Telegram Corp., 2 NY2d 416.) IV. The evidence was inadequate, as a matter of law, to establish a causal connection between the accident on March 22, 1973 and plaintiff’s physical disabilities at the date of the trial. (Peters v Revlon, Inc., 38 AD2d 696; Rodriguez v Zampella, 42 AD2d 805; Kowalski v Loblaws, Inc., 61 AD2d 340.)

      Mahlon T. Clements for respondent.
    I. Defendant-appellants are precluded from raising for review, the question of fact regarding whether plaintiff was responding to an "emergency call” pursuant to section 1104 of the Vehicle and Traffic Law. (Betzag v Gulf Oil Corp., 298 NY 358; Frankenberger v Schneller, 258 NY 270.) II. There is no error committed by the trial court when allowing plaintiff permission to amend his bill of particulars at the trial stage in the absence of prejudice to defendants. III. There is no error committed by the trial court when admitting evidence about plaintiff’s subsequent cost of doing business as a part of compensatory damages. (Park & Sons Co. v Hubbard, 198 NY 136; Rumsey v New York & New England R. R. Co., 133 NY 79; Dunlop Tire & Rubber Corp. v FMC Corp., 53 AD2d 150; Macy v New York World-Telegram Corp., 2 NY2d 416.) IV. The accepted standard for the admission of expert medical evidence with regard to the element of causation is "probability supported by some rational basis”; and although the reasonable degree of medical certainty formula is helpful in eliciting that evidence, it is not essential; and in any event, the medical witness in this case, testified to a reasonable degree of medical certainty and the evidence presented was legally sufficient. (Barile v Wright, 256 NY 1; Merriman v Baker, 35 NY2d 330; Guaspari v Gorsky, 29 NY2d 891; Zipprich v Smith Trucking Co., 2 NY2d 177; Matter of Miller v National Cabinet Co., 8 NY2d 277; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; Matter of Benenati v Tin Plate Lithographing Co., 29 AD2d 805; Matter of Zaepfel v du Pont de Nemours & Co., 284 App Div 693, 309 NY 962.)
   OPINION OF THE COURT

Fuchsberg, J.

In the main, this appeal requires us to consider the question, vital to the trial process, of the certainty with which the opinion of an expert witness — here a physician — must be expressed for it to have probative force.

The issue arises in a negligence suit emanating from a collision in early 1973 between a police car driven by plaintiff Lloyd Matott, a Deputy Sheriff of St. Lawrence County, and the defendants’ van. The plaintiff received a verdict at the hands of the jury, and the judgment entered thereon has since been affirmed by a closely divided Appellate Division.

Pertinent is the fact that Matott, who suffered orthopedic injuries in the impact, came under the care of an osteopathic physician, Dr. Lester Millard, who promptly embarked on a course of therapy that lasted for several months after the injuries were sustained. However, though Matott was to testify that he continued to experience pain and discomfort right up to the time of trial in 1977, he only visited the doctor intermittently in the intervening years. There was also proof that, on several of these occasions starting almost two years after the 1973 accident, he complained to Dr. Millard of new injuries to parts of his body affected by the original accident. Shortly before trial, the doctor conducted an examination to evaluate the residual condition. It is on Dr. Millard’s trial testimony that the controversy now focuses.

Specifically, it turns on a line of questioning initiated by plaintiff’s counsel to ascertain whether, in the doctor’s opinion, the condition he found following the later occurrences was related to the original accident "with a reasonable degree of medical certainty”. After an interruption to dispose of an objection as to foundation, the court, perhaps intending merely to repeat the unanswered question, nevertheless altered it to say, "And are you in a position, Doctor, to give us an opinion, with a degree of medical certainty, as to whether this condition that you saw at this time was related to the first accident?” Before the witness could reply, the Judge continued, "Now, think about that, Doctor, solely to the first accident and without any other accident intervening.” To all this the witness responded, "I don’t think I could say with certainty that it would be solely due to the accident of March, 1973”. (Emphasis ours.)

Undaunted by this seemingly unresponsive answer, after some attempts to clarify the distinction among various gradations of medical certainty and a rereading of the phraseology employed by the Trial Judge, counsel for the plaintiff himself fell back on that pattern, asking this time "could [we] have a degree of medical certainty that this was * * * causally related?” (Emphasis ours.) The witness thereupon volunteered that he had mistakenly assumed the Judge’s earlier inquiry demanded absolute certainty, and he then proceeded to answer it, this time in the affirmative. Defense counsel registered no objection to the form of this testimony; indeed, his consent may be inferred from his earlier assumption that "there [is] no unreasonable degree of medical certainty”.

As to the doctor, he did have an opportunity to respond directly to a question phrased in terms of a "reasonable” degree of medical certainty. This was when the interrogation turned to prognosis. He then was unequivocal in asserting that, in his opinion, Matott’s condition was permanent.

It is this evidence that the two dissenters at the Appellate Division deemed insufficient to establish a causal relationship between the original accident and the physical disabilities of which the plaintiff still complained at the time of trial. While as one with the majority as to liability, they held to the view that the causal connection had to be established by testimony that bespoke "a reasonable degree of medical certainty” (66 AD2d 910). On this appeal, here pursuant to CPLR 5601, we reach a different conclusion.

Generally speaking, a predicate for the admission of expert testimony is that its subject matter involve information or questions beyond the ordinary knowledge and experience of the trier of the facts. Moreover, the expert should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable. (McCormick, Evidence [2d ed], § 13; see, generally, § 10; Wigmore, Evidence, vol 2, §§ 555-567; vol 7, §§ 1917-1929; Richardson, Evidence [10th ed — Prince], §§ 366-368.)

There being no question but that the expert evidence was necessary and that the witness through whom it was provided in the present case was qualified, the court still had to ascertain whether, in opining as to causation and prognosis, Dr. Millard exhibited a degree of confidence in his conclusions sufficient to satisfy accepted standards of reliability. Granted that "a reasonable degree of medical certainty” is one expression of such a standard and is therefore commonly employed by sophisticates for that purpose, it is not, however, the only way in which a level of certainty that meets the rule may be stated. For, an overview of New York case law reveals that the requirement is not to be satisfied by a single verbal straightjacket alone, but, rather, by any formulation from which it can be said that the witness’ "whole opinion” reflects an acceptable level of certainty (Martin, Uncertain Rule of Certainty, An Analysis and Proposal for a Federal Evidence Rule, 20 Wayne L Rev 781, 790). To be sure, this does not mean that the door is open to guess or surmise, and admittedly, "a degree of medical certainty”, taken literally and without more, could very well be so characterized.

Yet, the need for flexibility is apparent from even the briefest consideration of the nature of medical opinions. Training in the inexact and continually expanding science of medical investigation implants in its initiates a reluctance to quantify their judgments as to cause and effect. Except insofar as one inescapably affects the other, the primary function of the average physician is to diagnose and treat the condition at hand rather than to determine precisely what extraneous factors influenced it. The emphasis is on the effect on antecedent physiological and psychological conditions; medical histories are almost always chronicles of the patient rather than the accident.

On the other hand, the approach of the lawyer, tutored in the art of resolving social problems and focusing on "proximate cause”, "fault distribution” and the like, is quite different. In the identification of influences toward legal responsibility, his concern is whether tort and injury bear a close enough relationship to make it equitable to impose financial responsibility upon a defendant. Not only is this a matter usually dehors the medical profession’s interest, but the type of prognostication that enters into it is out of tune with its far more scientific orientation. Thus, making allowances for the tension inevitably produced by an attempt to compress medical thinking into verbal molds created by the law is completely sensible. (See, generally, Small, Gaffing, at a Thing Called Cause: Medico-Legal Conflicts in the Concept of Causation, 31 Tex L Rev 630; Markus, Semantics of Traumatic Causation, 12 Cleveland — Marshall L Rev 233, 242-244.)

As though recognizing this problem long before the expansion of modern medicine made it particularly acute, Turner v City of Newburgh (109 NY 301), while reaffirming the injunction that four years earlier had been issued against opinions as to consequences that were "contingent, speculative, or merely possible” (Strohm v New York, Lake Erie & Western R. R. Co., 96 NY 305, 306), upheld the admission of evidence that the injuries there "could have resulted from a fall”. The court went on to say that it saw no objection to an opinion "as to whether [plaintiff’s present] condition might have been caused by or be the result of a previous injury” (emphasis ours) (109 NY, at p 308). In doing so, it superseded Strohm’s apparent insistence on a strict "reasonable certainty” formula, relegating that standard to opinions as to the likelihood of the future outbreak of latent or new conditions not manifested at the time of trial, a matter we have no occasion to reappraise at this time.

These holdings have been the precursors for a whole train of similar determinations (see, e.g., Griswold v New York Cent. & Hudson Riv. R. R. Co., 115 NY 61, 64 ["probability” held proper formulation for inquiry as to likelihood of recovery]; Cross v City of Syracuse, 200 NY 393, 396-397 [doctor could "hardly answer” question as to prognosis "with reasonable certainty” but subsequent opinions admitted]; Knoll v Third Ave. R. R. Co., 46 App Div 527 [extent of injuries "likely” to increase in future held admissible]; Drollette v Kelly, 286 App Div 641 ["could” have caused present condition sufficient]; Green v Mower, 3 AD2d 788 [testimony that accident "could” have caused condition upheld]; McGrath v Irving, 24 AD2d 236, 238 [allowing "opinion” of what "was” cause of disease]; Matter of Brown v Highways Displays, 30 AD2d 892 [finding "could be”, "possibly was” and "probably was” adequate to establish condition as work-related]; Matter of Scherbner v Masmil Corp., 34 AD2d 1072 ["possible cause” and "could have a toxic effect” are permissible]; Peligri v CAT Serv. Corp., 36 Misc 2d 257 ["could be” a cause and "could be” and "it seems to be” permanent are acceptable]).

The rule that evolves appears to be the one well stated in Matter of Miller v National Cabinet Co. (8 NY2d 277, 282), where the court made clear that it is not a dictionary dilettantism that is to govern, but whether it is "reasonably apparent” that "the doctor intends to signify a probability supported by some rational basis”. (See, also, Matter of Ernest v Boggs Lake Estates, 12 NY2d 414, 416 [" 'it may be assumed with all reasonable likelihood’ that the accident trauma 'could possibly have influenced adversely’ ” claimant’s tuberculosis], citing Sentilles v Inter-Caribbean Corp., 361 US 107, 109 ["probably”, "the most likely” cause].)

Looking then to substance rather than form, we cannot say that, on the whole record, Dr. Millard’s educated opinion that the tortious event caused plaintiffs subsequent medical condition was inadequate insofar as his answers adhered to the sterotypes in the questions formulated by Judge and lawyer. Further, allowing for the fact that the cause and effect relationship was one that, perhaps by its very nature, could not be established with scientific certainty, the reservations the doctor articulated by his other comments and responses can be seen as candid indications of the limitations inherent in medical opinion and, as such, a useful revelation to the jury in reaching its own conclusion as to the merits of the parties’ opposing contentions on causation and permanency (cf. Matter of Ernest v Boggs Lake Estates, supra, at p 416).

All the more is this so, since the doctor had played an intimate role in the medical history of the case. He was the treating physician. His was the advantage of a prompt postaccident examination. In the course of his repeated treatment, he had the opportunity to note the refinements and subtleties of his patient’s progress. He had personally observed the nature and extent of each of the exacerbating incidents in determining their effect on his diagnosis and treatment; he bore the responsibility for determining their relationship to the pre-existing symptoms. He had also undertaken a current medical survey on the eve of trial himself. In sum, if any one was in a position to hold an informed opinion, it was Dr. Millard.

The context out of which the disputed testimony arose also demonstrates its reliability. The colloquy in which Dr. Millard engaged anent his original misunderstanding of the Judge’s question was itself a graphic illustration of the problem faced by a physician called upon to pour his medical opinion into a legal crucible. And, his answer to the conventional "reasonable degree of medical certainty” question when queried as to permanency gave further indication of the implications of his earlier testimony. To this must be added the fact that he was not shaken in the least by defense counsel’s cross-examination.

In sum, we conclude that, considering the totality of his testimony rather than focusing narrowly on single answers, Dr. Millard’s opinion, though not solicited or expressed in terms of the particular combination of magical words represented by the phrase "reasonable degree of medical certainty”, conveyed equivalent assurance that it was not based on either supposition or speculation.

Thus, consonant with a principle insistent only on substantive indication of reasonable reliability, the issue of causation was properly submitted to the jury and, therefore, the order of the Appellate Division should be affirmed.

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

Order affirmed, with costs.

       In so concluding, we also note that, having considered the other issues raised by the defendant, we find them to be without merit.


author: Per Curiam.

text:
    In the Matter of Fineway Supermarkets, Inc., et al., Respondents, v State Liquor Authority et al., Appellants.
    Argued November 16, 1979;
    decided December 11, 1979

      POINTS OF COUNSEL

      Warren B. Pesetsky and Leslie W. Trebby for appellants.
    I. Since the authority’s construction of section 101-aa of the Alcoholic Beverage Control Law was not irrational or unreasonable, the court below erred in substituting its own construction for that of the authority. (Matter of Howard v Wyman, 28 NY2d 434; Matter of Bernstein v Toia, 43 NY2d 437.) II. Petitioners’ composition agreement, in providing for partial payment of petitioners’ unpaid balances, fails to comply with section 101-aa (subd 9, par a) of the Alcoholic Beverage Control Law. III. Petitioners’ composition agreement, in deferring payment over a five-year period, fails to comply with subdivision 7 of section 101-aa of the Alcoholic Beverage Control Law. IV. Case law relied upon by petitioners is readily distinguished: Ramey involved a composition, the validity of which was a condition precedent to a stock transfer; Fineway involves a composition alone. (Matter of Ramey v Bruckman, 178 Misc 659.) V. A construction of section 101-aa of the Alcoholic Beverage Control Law requiring the authority to accept judicially unsupervised compositions as "payment in full” would invite licensees to evade the price regulations of the Alcoholic Beverage Control Law and would impose a severe administrative burden on the authority.

      Daniel H. Golden and Joshua J. Angel for respondents.
    I. Compromise payments made pursuant to a bona fide, legitimate common-law composition agreement constitute payment in full as required by the Alcoholic Beverage Control Law. (Matter of Ramey v Bruckman, 178 Misc 659.) II. The Ramey case is not distinguishable from the case at bar. (Matter of Ramey v Bruckman, 178 Misc 659.) III. Refusal to accept a composition agreement as constituting "payment in full” on the ground that such agreement is not judicially supervised is arbitrary and unreasonable.
   OPINION OF THE COURT

Per Curiam.

Petitioners are retail grocers holding grocery beer licenses. Because they were unable to pay debts owed to their suppliers the State Liquor Authority placed them on the retail license delinquent list pursuant to section 101-aa of the Alcoholic Beverage Control Law. The effect of placement on the delinquent list was to prohibit the petitioners from receiving further deliveries of alcoholic beverages on credit.

Thereafter a chain store acquired control of petitioners and entered into a common-law composition with their creditors in lieu of bankruptcy proceedings. The amount owed by petitioners to their alcoholic beverage suppliers amounts to approximately 1% of the total funded by the arrangement. According to the terms of the composition creditors have the option to receive a maximum of 36 cents on the dollar with payments spread over a five-year period.

The State Liquor Authority declined to remove petitioners from the delinquent list. It determined that the composition, to the extent that it compromised debts owed to suppliers of alcoholic beverages, violated subdivision 9 of section 101-aa of the Alcoholic Beverage Control Law because it did not provide for payment in full. It also determined that the deferral of payments violated subdivision 7 of section 101-aa of the Alcoholic Beverage Control Law.

Special Term confirmed the determination of the State Liquor Authority and the Appellate Division reversed holding that the composition was payment in full as a matter of law.

A principal object of the Alcoholic Beverage Control Law is to foster the orderly sale and distribution of alcoholic beverages within the State. To prevent manufacturers and wholesalers of alcoholic beverages from gaining economic control of their customers the Legislature has, for example prohibited manufacturers or wholesalers from having any interest in retail premises, from making loans or gifts to retailers, or from granting any preference to favored dealers.

As part of the legislative scheme to prevent the economic subjugation of retailers subdivision 7 of section 101-aa of the Alcoholic Beverage Control Law provides that the authority may allow credit sales to a delinquent retailer "who has actually made payment for alcoholic beverages, or on good cause shown”. The authority interprets this to require that payments have been completed, not merely commenced, before it may permit deliveries on credit.

By now it is settled law that the interpretation given a statute by the agency charged with its enforcement will be respected by the courts if not irrational or unreasonable (Matter of Howard v Wyman, 28 NY2d 434; Matter of Bernstein v Toia, 43 NY2d 437). We find that the authority’s interpretation of subdivision 7 of section 101-aa of the Alcoholic Beverage Control Law is not irrational or unreasonable. Nor was its application by the authority, in this case, arbitrary.

Accordingly, the order of the Appellate Division should be reversed and the judgment of Special Term dismissing the petition and confirming the determination of the authority reinstated, with costs.

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

Order reversed, with costs, and the judgment of Supreme Court, New York County, reinstated.

       Subdivisions 7 and 9 (par a) of section 101-aa of the Alcoholic Beverage Control Law indicate the circumstances under which the authority may permit a delinquent retail licensee to receive delivery of alcoholic beverages on credit:
      "7. The authority in the case of a retail licensee who has actually made payment for alcoholic beverages, or on good cause shown to it, may permit sales or deliveries to any retail licensee who has received notice of default or who is named on any delinquent list, on terms other than for cash, but within the limitations of this section, prior to the publication of the next appropriate delinquent list”.
      "9. a. All retail licensees who fail to pay manufacturers or wholesalers for alcoholic beverages sold or delivered to such retail licensees by such manufacturers or wholesalers subsequent to the effective date of this section, shall liquidate and pay such unpaid balances to such manufacturers or wholesalers in equal monthly installments over a period of three months from the date upon which such unpaid balances become due. The authority, shall not, however because of such indebtedness or failure to pay such refuse to renew the license of any such licensee”.


author: Wachtler, J.

text:
    City of New York, Respondent, v Long Island Airports Limousine Service Corp., Appellant.
    Argued November 29, 1979;
    decided December 17, 1979

      POINTS OF COUNSEL

      J. Irwin Shapiro, Robert M. Calica and Charles J. McEvily for appellant.
    I. Defendant’s operations constitute interstate commerce, and, accordingly, the City of New York is without power to prohibit its limousine service to and from the airports. (Garrison v Paramount Bus Corp., 223 App Div 75; Pine Hill-Kingston Bus Corp. v Davis, 225 App Div 182; Railroad Transfer Serv. v Chicago, 386 US 351; Chicago v Atchison, T. & S. F. Ry Co., 357 US 77; Toye Bros., Yellow Cab Co. v Irby, 437 F2d 806; Wycoff Co. v United States, 240 F Supp 304; Hayden v Bowen, 404 F2d 682; Airlines Transp. v Tobin, 198 F2d 249; United States v Yellow Cab Co., 332 US 218.) II. The court below improperly construed the effect of the State commissioner’s denial of the city’s application to revoke defendant’s State certificate. (Matter of Evans v Monaghan, 306 NY 312; Matter of Chapin v Board of Educ., 291 NY 241; Lederer v Wise Shoe Co., 276 NY 459.) III. The courts below erred in construing defendant’s New York City Operations to constitute a bus line or omnibus route. (Public Serv. Comm. v Grand Cent. Cadillac Renting Corp., 273 App Div 595; Surface Transp. Corp. of N. Y. v Reservoir Bus Lines, 271 App Div 556.)

      Allen G. Schwartz, Corporation Counsel (Nancy Stassinopoulos, L. Kevin Sheridan and Joseph F. Bruno of counsel), for respondent.
    I. The operation of a bus line over city streets without a franchise is unlawful, even though the bus company holds a State certificate of public convenience and necessity. (Surface Transp. Corp. v Reservoir Bus Lines, 271 App Div 556; Matter of City of Long Beach v Public Serv. Comm. of State of N. Y., 249 NY 480; Blanshard v City of New York, 262 NY 5; Huff v City of New York, 202 App Div 425; City of New York v Bee Line, Inc., 246 App Div 28, 271 NY 595; Sadlier v City of New York, 185 NY 408; Coatsworth v Lehigh Val. Ry. Co., 156 NY 451; Matter of Guardian Life Ins. Co. of Amer. v Chapman, 302 NY 226; Matter of Board of Educ. v Allen, 6 NY2d 127.) II. An airport limousine service which does not cross State lines is operating in intrastate commerce and may be enjoined from operating without a franchise. (Statter v Statter, 2 NY2d 668; Ripley v Storer, 309 NY 506; Schuylkill Fuel Corp. v B. & C. Nieberg Realty Corp., 250 NY 304; Matherson v Matherson, 31 AD2d 542, 26 NY2d 1036; Town of Union v J & M Pallet Co., 50 AD2d 628; United States v Yellow Cab Co., 332 US 218; New York Cent. R. R. Co. v Mohney, 252 US 152; Mateo v Auto Rental Co., 240 F2d 831; Cederblade v Parmalee Transp. Co., 94 F Supp 965; Airlines Transp. v Tobin, 198 F2d 249.)
   OPINION OF THE COURT

Wachtler, J.

The City of New York commenced this action to enjoin the defendant, Long Island Airports Limousine Service Corp. (LI-ALS) from carrying passengers into the city without the city’s consent. The Supreme Court denied the city’s motion for summary judgment, but the Appellate Division reversed and granted the injunction. The defendant appeals.

The defendant’s limousine service transports passengers from Nassau and Suffolk Counties to two airports, La Guardia and Kennedy, located in the City of New York. At the present time it transports approximately 5,000 passengers a week. It has been operating at least since 1961 when the State Commissioner of Transportation issued to the defendant a permanent certificate of necessity and convenience (Transportation Law, § 149) to provide public transportation between Nassau and Suffolk Counties and the city airports. In 1968 the defendant also obtained a franchise from the City of New York to use the city streets en route to the airports. In 1977, however, the Board of Estimate of the City of New York adopted a resolution which canceled the franchise and refused to grant a renewal.

The defendant commenced an article 78 proceeding claiming that the city’s action violated due process, was arbitrary and capricious and was not supported by substantial evidence. The Supreme Court dismissed the petition on the ground that the Board of Estimate’s action was legislative in nature, and since the board had not exceeded its jurisdiction or acted illegally, its resolution was not subject to court review. The Appellate Division affirmed that judgment (60 AD2d 1005) and we dismissed the defendant’s appeal purportedly taken as of right (43 NY2d 949) and denied leave to appeal (44 NY2d 647).

After canceling the franchise the city also requested the State Commissioner of Transportation to revoke the certificate of public convenience and necessity which had been granted to the defendant. The commissioner ordered that a hearing be held.

While that proceeding was pending, the city commenced this action to enjoin the defendant from continuing to transport passengers to the city airports without the city’s consent claiming that this action violated section 362-1.0 of the Administrative Code, section 66 of the Transportation Corporations Law and constituted a trespass. The city also sought to recover unpaid franchise fees. The defendant did not deny the city’s claim for the franchise fees, nor did it dispute the facts alleged in the complaint. However it opposed the injunction on the ground, among others, that its operations in the City of New York "do not even require a local consent and this is one of the issues that presently confronts the Commissioner of Transportation.”

The city’s motion for summary judgment was granted in part. The court directed summary judgment on the fourth cause of action, seeking to recover the franchise fees. With respect to the other causes of action the court stated: "The issues presented by the City’s motion for injunctive relief which concern the legality of Long Island’s current operations under a state certificate of public convenience and necessity after the local consent has been revoked, are currently the subject of a proceeding previously instituted by the Commissioner. A hearing was held on April 12, 1978 at which the city, the Board of Estimate and Long Island were represented. A decision has not yet been rendered. In the court’s opinion the underlying action, to the extent that it requests injunctive relief, is duplicative and premature.” Thus this branch of the motion was denied "without prejudice to renewal should such renewal be appropriate after a decision is rendered by the Commissioner.”

The city appealed to the Appellate Division. While that appeal was pending the Commissioner of Transportation determined that the defendant’s certificate should not be revoked. He noted that the Transportation Law "is silent with regard to [the commissioner’s] power to revoke that permanent certificate once a local consent has been granted and is thereafter terminated by a city.” He also noted that there "is no evidence revealing that LIALS is not rendering an adequate service to the public or that it is not in a position to continue to render such a service. Testimony received at the hearing indicates that LIALS transports approximately 5,000 passengers a week to and from the airports on its bus line operation. The Commissioner has an obligation to see that these Long Island residents continue to be provided a safe and reliable transportation system. The concern for the public interest is paramount.” The city petitioned for a rehearing but the application is still pending before the commissioner.

The Appellate Division recognized in its decision that the commissioner had decided not to revoke the State certificate issued to the defendant. Nevertheless it reversed the Supreme Court and granted summary judgment to the city on the causes of action seeking an injunction because it "appears that the operation of defendant’s bus line over streets in the City of New York requires approval of both the State Commissioner of Transportation and of the City of New York.”

On this appeal the defendant argues that it does not need the city’s consent to operate the limousine service to the city airports, particularly when the State Commissioner of Transportation has determined that public convenience and necessity require the service and the local authorities have unreasonably withheld or refused consent. The city concedes that the State commissioner generally has the power to override the local authorities’ refusal to consent, if unreasonable (Transportation Law, § 150, subd 1), but argues that he may not do so when a city is involved, even in cases where the city has unreasonably refused to consent. This poses an important question concerning the power of the State commissioner to insure adequate transportation into large metropolitan areas. But in our view it should not be decided in a case in which the commissioner is not a party.

A court may always consider whether there has been a failure to join a necessary party (First Nat. Bank v Shuler, 153 NY 163, 170; Matter of Lezette v Board of Educ., 35 NY2d 272, 282). Necessary parties are defined as "[pjersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action” (CPLR 1001, subd [a]). An action is subject to dismissal if there has been a failure to join a necessary party (CPLR 1003). The rule serves judicial economy by preventing a multiplicity of suits. It also insures fairness to third parties who ought not to be prejudiced or "embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard” (First Nat. Bank v Shuler, supra, p 170; see 2 Weintein-Korn-Miller, NY Civ Prac, par 1001.01).

In this case the resolution of the controversy between the city and the limousine service involves a determination of the rights and powers of a third party, the State Commissioner of Transportation, who is not before the court. The propriety and effect of his action is not a purely incidental matter, nor can it be said that his determination bears absolutely no relationship to his statutory powers and responsibilities (cf. Matter of Castaways Motel v Schuyler, 24 NY2d 120, 125). Since neither the commissioner nor any other State official or agency having overlapping interests is a party to this action (cf. Matter of Castaways Motel v Schuyler, supra) an adverse determination would undoubtedly not be binding upon him (see, e.g., Siegel, New York Practice, § 132, p 163). However, to the extent that he may feel bound, as a practical matter, to accept an adverse holding without having been heard, he would be inequitably affected by the judgment. To the extent that he may choose to disregard a holding which is not binding on him, the judgment in this case may not produce a complete resolution of the controversy between the city and the limousine service. Thus we have concluded that the State Commissioner of Transportation is a necessary party to this action and the first three causes of action should, accordingly, be dismissed without prejudice (CPLR 1003). We note, however, that there would appear to be no time bar to the commencement of a new action against the necessary parties should the city be so advised. Injunctive relief, if appropriate, would not be barred so long as the defendant continues to operate on the city streets and the commissioner’s action will not be final until he has ruled on the petition for a rehearing.

Accordingly, the order of the Appellate Division should be reversed and the first three causes of action dismissed, without prejudice.

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

Order reversed, without costs, and the first, second and third causes of action dismissed, without prejudice.

       Following the Appellate Division’s decision in this case the commissioner informed the city that he intends to withhold determination of the petition for a rehearing until the appeal to this court has been completed.