author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Jose Roman, Appellant.
    Argued April 1, 1981;
    decided May 14, 1981

      POINTS OF COUNSEL

      David J. Goldstein, Norman J. Mordkofsky and Elliot Fuld for appellant.
    I. The initial stop of appellant’s vehicle was impermissible. (People v Ingle, 36 NY2d 413; People v Sobotker, 43 NY2d 559; People v Mason, 69 AD2d 769; People v Murray, 48 AD2d 907; People v Allende, 39 NY2d 474; People v Marner, 47 NY2d 982; People v Hutchinson, 47 NY2d 823; People v Singleton, 41 NY2d 402; People v Smith, 72 AD2d 636.) II. The warrantless search of the cigarette case found in the vehicle violated appellant’s Fourth Amendment rights. (Coolidge v New Hampshire, 403 US 443; Matter of B. T. Prods, v Barr, 44 NY2d 226; People v Roman, 74 AD2d 589; People v Sullivan, 29 NY2d 69; People v D’Abate, 37 NY2d 922; People v Martin, 48 AD2d 213; United States v Jeffers, 342 US 48; People v Berrios, 28 NY2d 361; People v Baldwin, 25 NY2d 66; People v Hodge, 44 NY2d 553.)

      John J. Santucci, District Attorney (Jeffrey A. Granat of counsel), for respondent.
    I. The stop of the vehicle operated by defendant was lawful and proper. (People v Sobotker, 43 NY2d 559; People v Ingle, 36 NY2d 413; People v Cascio, 63 AD2d 183; People v Forelli, 58 AD2d 76; People v Cantor, 36 NY2d 106; United States v Montgomery, 561 F2d 875; Delaware v Prouse, 440 US 648; People v La Borde, 66 AD2d 803; People v Martin, 56 AD2d 876; People v Rodriguez, 54 AD2d 949.) II. The inventory search of the vehicle and cigarette case was proper. (South Dakota v Opperman, 428 US 364; People v Sullivan, 29 NY2d 69; United States v Balanow, 528 F2d 923; United States v Ducker, 491 F2d 1190; People v Butler, 44 AD2d 423, 36 NY2d 990; People v Martin, 48 AD2d 213; People v Robinson, 36 AD2d 375; People v Leonti, 18 NY2d 384.) III. Since defendant lacks standing to contest the inspection of the car and cigarette case, the order of the court below should be affirmed. (People v Ingle, 36 NY2d 413.)
   OPINION OF THE COURT

Wachtler, J.

The courts below held, correctly, that the police acted lawfully in stopping a car, placing the defendant under arrest and impounding the vehicle. In addition, after the car had been impounded the police had the right to search it to inventory its contents (South Dakota v Opperman, 428 US 364), which included a cigarette case found on the floor near the front seat. The question is whether it was proper for the police to also open the cigarette case to observe its contents as part of the inventory search.

The trial court held the search was not so authorized and accordingly suppressed the evidence and the defendant’s statements concerning it. The Appellate Division reversed and the defendant appeals.

Initially it should be emphasized that the cigarette case was not taken from the defendant’s person after he had been taken into custody (see, e.g., Gustafson v Florida, 414 US 260; Michigan v De Filippo, 443 US 31) nor was it seized at the time and place of arrest (see, e.g., Chimel v California, 395 US 752, 762; cf. People v Belton, 50 NY2d 447). The case was found in the car and it was searched after the defendant was arrested and the car had been removed to the police precinct by another officer who inventoried its contents. Thus the search cannot be said to be incident to an arrest (United States v Chadwick, 433 US 1).

As noted, the Supreme Court has upheld the right of the police to search an impounded vehicle to inventory its contents (South Dakota v Opperman, supra). The court, however, has never held or suggested that an inventory search also includes the right to open or search packages, containers, or other items found in the vehicle. Generally such an item may be removed and placed in storage “without examining its contents” (South Dakota v Opperman, supra, p 380, n 7 [Powell, J., concurring]). In fact, in subsequent cases the court has pointedly observed that the right to conduct an inventory search has been held to extend only to “some integral part of the automobile”, as opposed to the contents of the items found in the vehicle (Arkansas v Sanders, 442 US 753, 763).

Although it had been thought that once an item had been taken from a car and was lawfully in police custody, it would be reasonable to expect the police to determine its contents (People v Sullivan, 29 NY2d 69, 72), recent Supreme Court decisions have undermined that assumption. It is now clear that even in cases where the seizure is based on probable cause to believe that the item taken from a vehicle contains contraband or evidence of a crime, the right to seize does not include the right to conduct a warrantless search of its contents, absent exigent circumstances (Arkansas v Sanders, supra; see, also, United States v Chadwick, supra; cf. Walter v United States, 447 US 649). Those cases would also seem to limit the scope of an inventory search. Indeed the holdings would make little sense if an item lawfully in police custody could, in any event, be opened and examined pursuant to an inventory search.

The Supreme Court has indicated that Fourth Amendment protections do not apply fully to all containers and has acknowledged that there will be “difficulties” in determining whether a particular container is entitled to such protection (Arkansas v Sanders, supra, p 764, n 13). Examples of nonprotected items would include “a kit of burglar tools or a gun case”, where the contraband nature of the contents “can be inferred from their outward appearance” (ibid.). Also unprotected would be items where the contents are exposed to “plain view” (ibid.). Beyond that the court has noted that exigent circumstances may justify a warrantless opening of a seized item, where for instance the officers have reason to believe that it contains explosives (United States v Chadwick, supra, p 15, n 9).

None of those exceptions are applicable here. The cigarette case was at least partially opaque and, concededly, the officer was unable to determine its contents, other than to note that it propably did not contain cigarettes. Neither was the contraband nature of the contents evident from the outward appearance of the case. Finally, there was no suggestion that it contained anything imminently dangerous nor was there any showing of any other exigent circumstances to justify the warrantless search of the cigarette case.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for review of the facts.

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

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


source: Caselaw Access Project

author: Meyer, J. Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Yut Wai Tom, Appellant.
    Argued April 2, 1981;
    decided May 14, 1981

      POINTS OF COUNSEL

      Burton C. Agata and Michael G. Dowd for appellant.
    I. Appellant’s Federal constitutional and State constitutional and legal rights were infringed by the conduct of counsel at the lineup and the court committed prejudicial error when it found that appellant had waived his right to the presence of counsel at the lineup and that he had had effective assistance of counsel. (People v Hobson, 39 NY2d 479; People v Coleman, 43 NY2d 222; People v Tompkins, 45 NY2d 748; United States v Wade, 388 US 218; People v Blake, 35 NY2d 331; People v Johnson, 99 Misc 2d 450.) II. Defendant was denied a fair trial under the Federal Constitution and under the laws and Constitution of New York by virtue of the court’s conduct and rulings. (People v Mees, 47 NY2d 997; People v Crimmins, 36 NY2d 230;
      People v Moulton, 43. NY2d 944; People v Ohlstein, 54 AD2d 109; People v Ellis, 62 AD2d 469; People v Robinson, 53 AD2d 898; People v Budd, 38 NY2d 988; People v Richards, 48 AD2d 792; People v Brown, 53 AD2d 867; People v Baker, 44 AD2d 83.) III. The admission into evidence of a double hearsay statement concerning a threat by defendant to the victim was prejudicial error requiring reversal. (People v Williams, 50 NY2d 996; People v Garcia, 76 AD2d 867; People v Jones, 62 AD2d 356; People v Freeman, 9 NY2d 600; People v Davis, 43 NY2d 17; People v Trowbridge, 305 NY 471; People v Rosati, 39 AD2d 592 ; People v Johnson, 61 AD2d 923; People v Welch, 16 AD2d 554; People v Tisdale, 18 AD2d 274.)

      Robert M. Morgenthau, District Attorney (Donna Krone and Jerrold L. Neugarten of counsel), for respondent.
    I. Defendant’s guilt of the murder of Fong Yue Yee was proved beyond a reasonable doubt. II. Defendant was effectively represented by counsel, who took an active part in the preparations for the lineup. Counsel made a strategic decision to leave before the actual moments of viewing, and defendant acquiesced in his decision. (Neil v Biggers, 409 US 188; Stovall v Denno, 388 US 293; People v Brown, 20 NY2d 238; People v Ballott, 20 NY2d 600; People v Blake, 35 NY2d 331; People v Burwell, 26 NY2d 331; People v Arthur, 22 NY2d 325; Kirby v Illinois, 406 US 682; People v Hobson, 39 NY2d 479; People v Tompkins, 45 NY2d 748.) III. The court’s evidentiary rulings and its instructions to the jury were correct. (People v Robinson, 36 NY2d 224.) IV. The court’s conduct was within the permissible bounds of judicial participation at trial. (People v Jamison, 47 NY2d 882; People v Moulton, 43 NY2d 944; People v Hinton, 31 NY2d 71, 410 US 911; People v Mendes, 3 NY2d 120; People v Mees, 47 NY2d 997; People v Carter, 40 NY2d 933; People v Arabadjis, 78 AD2d 614; People v Ellis, 62 AD2d 469; People v Russo, 41 NY2d 1091; People v De Tore, 34 NY2d 199.)
   OPINION OF THE COURT

Meyer, J.

Defendant’s right to counsel at a postarraignment lineup conducted in the absence of counsel was waived where defendant’s counsel, having arranged with the prosecutor the physical details of the lineup and the questions to be asked and having discussed with defendant his reasons for not remaining for the actual lineup and obtained defendant’s consent, advised the prosecutor that the lineup should proceed in his absence, even though defendant did not himself communicate the waiver to the prosecutor and counsel was not in defendant’s presence when he did. While the Trial Judge was, therefore, correct in denying suppression of testimony concerning the lineup identifications, there must, nevertheless, be a reversal and a new trial because, by his persistent, excessive and unwarranted participation in the examination of witnesses, the Trial Judge denigrated defendant’s right to a fair trial.

I

The factual predicate for the jury’s finding defendant to be guilty of second degree murder may be quickly stated. On April 1, 1975, at approximately 8:00 P.M., Fong Yue Yee was shot to death on Eldridge Street in the Chinatown area of Manhattan. He had been walking with Michael Chin toward Chin’s residence when he decided to call his girlfriend. Entering a phone booth on the southeast corner of Grand and Eldridge Streets, Fong placed the call while Chin waited. Chin noticed the approach of a beige Nova, which stopped in front of the phone booth, and recognized defendant, Yut Wai Tom, in the passenger seat. Fong interrupted his call and advised Chin not to wait since the call would take some time. As Chin walked down Eldridge Street he again saw the beige Nova and defendant in the passenger seat. The car proceeded to Grand Street and turned left. Chin continued to his apartment at 81 Eldridge Street.

At this point there arrived on the scene several members of the Ortiz family, including Rosabel, who was then 12 years old, and Marivel, then 16. They noticed a biege Nova pull up in front of the phone booth and saw the man in the booth drop the phone and begin to run after looking in the direction of the car.

A gun protruded from the rear window of the car and a shot was fired at Fong, who fell to the ground. The man with the gun emerged from the car, knelt down over the body, raised Fong’s chin and shot him in the throat. According to Rosabel and Marivel Ortiz, the shooter returned to the corner and looked around, looking directly at them for several seconds. He then returned to the car which sped away. Shortly thereafter Fong was pronounced dead on arrival at a nearby hospital.

The Appellate Division, one Justice dissenting, having affirmed defendant’s conviction, we must determine whether defendant was denied his right to counsel at lineup and whether he was accorded a fair trial.

II

A

The testimony presented at the Wade hearing shows that the Ortiz girls each separately examined an album of photographs and selected a picture of the defendant as the shooter. Defendant was then arrested and arraigned. At arraignment on April 3, 1975, defendant’s then attorney, Joseph Stone, agreed with Assistant District Attorney Sears that a lineup would be held on Saturday, April 9, 1975 at 3:00 p.m. On April 9 Stone arrived at 2:45 P.M. and consulted with his client. Sears then informed Stone that because he had run into difficulty in obtaining Chinese standins there would be some delay. Stone announced that he had a pressing engagement and would have to leave shortly. By 3:40 the standins had been assembled and Sears dispatched detectives to pick up Rosabel and Miravel Ortiz, who lived nearby.

At 3:55, Stone asked why the lineup had not commenced and announced his departure. On inquiry Stone revealed that his “pressing engagement” was a Little League baseball game which he had to umpire because his son was a participant in the game. Sears reproached Stone, pointing out that his client was charged with a serious crime, that a prompt lineup was very important and that he would report Stone to the Appellate Division for disciplinary action if he left. Stone did leave, but returned several minutes later, apparently swayed by Sears’ threat.

Stone then viewed the standing, commenting that they were generally fair. Noticing that some of them wore jackets, Stone asked that their jackets be removed since his client was without one. The request was granted. Upon request, Sears also agreed to place defendant in the number three position in the first lineup and the number five position in the second lineup. Stone examined the lineup room and the one-way mirror and obtained assurances from Sears that the two witnesses would view the lineup separately. Finally, he and Sears agreed on the wording of the question to be posed to the two witnesses.

At 4:30 p.m. Sears informed Stone that the witnesses were in his office and left the room to get them. When he returned, Stone was not there. Unable to believe that Stone had left at such a crucial stage of the proceedings, Sears searched the building for him. At 5:00 p.m. Sears decided to proceed with the lineup notwithstanding Stone’s absence, but before he was able to do so he received a telephone call in the lineup room from Stone. Stone instructed Sears to proceed with the lineup, saying that he was satisfied that the lineup would be fair. Sears offered to let Stone speak to the defendant and he did so.

The lineup was then held. Rosabel first viewed the group and stated that she thought that the killer was number three (defendant), but she was not sure. When Marivel viewed the lineup she stated that the killer was number five (again, the defendant), commenting, however, that his hair was different.

At the Wade hearing defendant, now represented by an attorney other than Stone, moved to suppress the lineup identifications on the ground that defendant had been denied his right to counsel. Having heard from the detective, the Ortiz girls and Assistant District Attorney the above stated facts concerning the lineup, the Trial Judge called Joseph Stone as the court’s witness.

Stone admitted that initially he intended to leave in order to attend the Little League game but remained because of the insistence of Sears. Further questioning by the court elicited the statement that Stone subsequently left only because he was satisfied that he had done all he could to insure a fair lineup and was convinced that Sears would run the lineup fairly and in accordance with their arrangements. Unprompted by the court was Stone’s casual remark that there was also “another reason” for his departure, which follow-up questions disclosed was that he felt that it was important that he not actually see the witnesses. Asked whether he had discussed his reason with defendant, Stone replied that he had and that defendant had agreed that his not being present would be all right.

A question having been raised by Stone concerning attorney-client privilege, defendant, after conference with his new counsel, waived privilege with respect to Stone’s reason for leaving. Stone then indicated that the reason had occurred to him in part because of Sears’ insistence upon a prompt lineup, the reason for which was that in Sears’ experience Chinese defendants rarely went to trial because the witnesses were “reached”. Sears informed Stone that he intended to move with dispatch, before the Ortiz sisters were threatened or harmed. It then occurred to him, Stone testified, that if he didn’t know the identity of the witnesses, about which he had been asked even before the lineup, his client could not be blamed if they were threatened or harmed.

The Judge ruled, and defendant does not now challenge the ruling, that the lineup was fair. He concluded also that defendant had knowingly and intelligently waived his right to counsel’s presence at the moment of identification and that up to that point counsel had effectively acted to insure that the lineup procedure was fair. The affirmance by the Appellate Division carries with it an affirmance of the fact findings on which the hearing court’s conclusions were based.

B

There can be no dispute that defendant was effectively represented by counsel at the lineup, up to the point of Stone’s departure. Although defense counsel initially displayed an unprofessional lack of concern for his client’s welfare, the District Attorney’s threat apparently made him realize his error. Counsel then affirmatively requested a change in the dress of the standins, arranged for the placement of his client in different positions in the two lineups, discussed the wording of the question to be put to the lineup witnesses and obtained assurances that they would view the lineup separately. Finally, he advised his client to assume a pose similar to that of the standins and not to allow himself to be made conspicuous in any way. In a proceeding in which counsel’s role is essentially a passive one (see People v Settles, 46 NY2d 154, 165), Stone acted to assure that the lineup was a fair one.

Nor can we conclude that defendant was denied his right to have counsel present at the actual viewing. It is settled that a defendant is entitled to the assistance of counsel at any critical stage of the criminal proceeding and that a postarraignment lineup is such a stage (Kirby v Illinois, 406 US 682; People v Blake, 35 NY2d 331, 337). The absence of counsel at the viewing would, therefore, mandate suppression of the identifications then made unless defendant’s right to counsel’s presence at that time was effectively waived.

There is no evidence that defendant said anything at or before the lineup to the Assistant District Attorney that would waive his right to counsel, nor given the absence of counsel could he by either affirmative statement or simple acquiescence in the proceedings evidence his waiver (People v Settles, 46 NY2d 154, supra; People v Hobson, 39 NY2d 479; see People v Tompkins, 45 NY2d 748, 750).

The rule with respect to waiver of the right to counsel is a sound one and is premised on the theory that a defendant in custody needs counsel for more than just legal advice. The custodial setting is an inherently coercive one (cf. People v Rogers, 48 NY2d 167,173), and the presence of counsel serves to dissipate the pressure on a defendant who might otherwise consider himself totally at the mercy of his captors. Moreover, it eliminates direct communication between representatives of one litigant (the People) and the defendant. In our adversarial system of justice the attorney speaks for the client and it is as inappropriate in criminal as it is in civil litigation for a party or his or its attorney to contact the other party directly once an attorney has entered the proceeding on the latter’s behalf (People v Skinner, 52 NY2d 24, 29-30). It is for these reasons that a defendant who takes it upon himself to make a judgment about his need for counsel may waive his right to counsel only in the presence of his attorney.

That rule does not end our inquiry, however, for here communication of the waiver was by counsel, rather than defendant. The issue then is whether the considerations which proscribe a waiver by defendant when communicated by him to the People out of the presence of counsel mandate that defendant and counsel be in the presence of each other when defendant’s counsel effects a waiver of his right to be present on behalf of defendant. On analysis, we conclude that on the facts of this case defendant’s attorney could waive defendant’s right to have him present at the lineup without defendant being present when the waiver was communicated.

The record is clear that defendant’s attorney had ample opportunity to discuss, and did discuss, with defendant the reasons for and effects of a waiver. It also justifies the conclusion of the courts below that on the advice of counsel and for a valid reason defendant agreed that it was best that his attorney not be present at the viewing. Defendant does not claim otherwise, arguing before us only that however well considered the advice and however well advised the waiver, it was ineffiectual unless defendant was in counsel’s presence when counsel spoke on his behalf to effectuate the waiver. We decline to impose such a requirement because to do so would serve none of the purposes for which counsel’s presence is generally required.

Certainly a telephone waiver by counsel effectively eliminates any need for communication between defendant and the authorities. Furthermore, the waiver on defendant’s behalf is in no sense uncounseled merely because counsel chose to advise the District Attorney by telephone of the defendant’s waiver. Nor is the defendant more likely to waive his right to counsel due to a coercive atmosphere because his attorney chooses the telephone as his means of communication. As a practical matter, if counsel feels that the defendant is mistaken in his decision to effect a waiver of counsel, he may simply refuse to make the call until he can have a direct meeting with the defendant. In short, unless counsel is satisfied that his client’s decision to waive is a proper one, no waiver can be effected except by defendant in his counsel’s physical presence.

It is well to remember that our goal is to protect the substantive rights of individual defendants, not ritualistically to impose requirements which add nothing to the protections afforded a defendant. Accordingly, we hold that defendant’s waiver of counsel having been the product of the consultation with, and the concurrent judgment of, his attorney, the waiver was valid although it was communicated to the authorities by the attorney outside the presence of the defendant. The lineup identifications were, therefore, properly admitted at trial.

Ill

We turn then to the question of whether defendant was denied a fair trial because of the Trial Judge’s unwarranted interference in the examination of witnesses. At the outset, we reject the District Attorney’s contention that the issue is unpreserved, and therefore not reviewable, because defense counsel did not object to the Trial Judge’s interference until late in the trial; CPL 470.05 (subd 2) provides that “[f]or purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.” To suggest, however, that an objection was required to be entered in this instance at the first sign of court interference misperceives the nature of the claim being asserted and would do an injustice to CPL 470.05 (subd 2).

The statute quite easily applies to instances at trial where a specific objection is ruled upon or where a specific requested instruction is denied, for the claim asserted is definite and limited in scope. In contrast, judicial interference in the trial must be measured both qualitatively and quantitatively before it can be said to be excessive. Because a court is entitled to question witnesses to clarify testimony and to facilitate the progress of the trial, a defense attorney cannot be expected to enter an objection to the Trial Judge’s conduct at the first sign of judicial overbearance. Quite naturally a defense attorney is not likely to enter an objection until it is clear that the Judge intends to exceed his permissible role and assume the advocate’s function. Moreover, the greater the Trial Judge’s penchant for participation in the questioning of witnesses, the more difficult will it be for counsel to register objection to the Judge’s conduct for fear of antagonizing him.

In these circumstances it must suffice that defense counsel enters an objection to the improper conduct at a meaningful time during the trial and has not previously encouraged the objectionable conduct. Here, the record indicates that counsel did not encourage the court’s interference, and that interference continued despite counsel’s objections. While the objections were entered in the latter part of the trial, the court required counsel to make the objections in the jury’s presence, overruled them and continued his active participation in the trial. Under the circumstances the point has been adequately preserved for our review.

The role of the Trial Judge is neither that of automaton nor advocate. As defined in subdivision (a) of standard 6-1.1 of the American Bar Association Standards Relating to the Administration of Criminal Justice (Special Functions of the Trial Judge [1978]): “The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial.” Under that standard, as the commentary to it reveals, “it is appropriate for the trial judge from time to time to intervene in the conduct of a case. Thus, when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts. The judge may interrogate a witness after a cross-examination that appears to be misleading to the jury.” It is, however, important, according to that commentary that the Judge “be aware that there may be greater risk of prejudice from overintervention than from underintervention. While the judge should not hesitate to exercise his or her authority when necessary, the judge should avoid trying the case for the lawyers.”

We have recognized the Trial Judge’s vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial (People v Jamison, 47 NY2d 882, 883-884; People v Moulton, 43 NY2d 944; People v De Jesus, 42 NY2d 519) but noted that the power is one that should be exercised sparingly (People v Jamison, supra, at p 883). A Trial Judge’s examination of witnesses carries with it so many risks of unfairness that it should be a rare instance when the court rather than counsel examines a witness. For example, where the court elicits crucial incriminating testimony on direct examination, the witness may be less likely to change his testimony on cross-examination. There is an increased risk that the Trial Judge will inadvertently convey to the jury his disbelief of a witness, not only by his reaction to answers, but by his phrasing of questions and tone of voice. Apart from these risks there is a substantial danger that the court’s participation in the trial will result in an unfair tactical advantage to a party. For example, a defense attorney who would object to a question if posited by the District Attorney might well be dissuaded from doing so if the question were asked by the Trial Judge, for fear of antagonizing the Judge or of creating the impression that he seeks to hide the truth. Even worse, as happened here, the judicial questioner may in the guise of clarifying testimony, conduct what amounts to a running redirect examination during defense counsel’s cross, thereby rendering it ineffective. The defense, however, has no similar opportunity of interrupting the prosecution’s direct examination by a similar running cross-examination and may, in consequence, find it much more difficult to persuade the jurors that there is an alternative innocent interpretation of the events in issue. In short, the risks of unfairness are so many and potentially so great that the Judge should rarely, if ever, indulge in an extended questioning of the witnsses for either side.

This is not to say that a Judge may never intervene. He may, for example, if a witness has a language difficulty, intervene to clarify unclear answers. He may also properly question witnesses to insure that a proper foundation is made for the admission of evidence. In last analysis, however, he should be guided by the principle that his function is to protect the record, not to make it.

The record shows that the Trial Judge asked more than 1,300 questions during the course of the trial. Though substance and not the number of questions asked is the important consideration and though some of the questions were clearly appropriate by way of clarification or because of language difficulties, there can be no question that in his substantial examination of the witnesses the Trial Judge departed from his appropriate role in a number of respects.

The first is the extent to which direct examination of the witnesses was conducted by him. He elicited the essential facts of the murder from Rosabel Ortiz, the People’s first eyewitness. He then elicited from Rosabel Ortiz testimony that she had previously identified the defendant at a lineup. Though ultimately he sustained a defense objection to his own questions, the court next attempted to bolster Rosabel Ortiz’ in-court identification by eliciting from her testimony that she lived in a neighborhood populated by Chinese persons and that she recognized facial differences among them.

When Marivel Ortiz took the witness stand the court elicited significant portions of her testimony about the murder. Although the prosecutor initially obtained an in-court identification from Marivel Ortiz, the Trial Judge strengthened it immeasurably during his direct examination of the witness. He also gave significant assistance to the prosecutor in eliciting Marivel Ortiz’ testimony that she had previously identified the defendant at a lineup. Indeed, the court reinforced the witness’ testimony by repeatedly asking her if she had picked out the defendant and if she was sure.

The court also elicited important direct testimony from Michael Chin, who placed defendant at the scene of the crime shortly before the murder. Although there are other instances where the court elicited direct testimony from these and other witnesses, it is enough to note that the court engaged in quite extensive direct questioning of the three most important witnesses for the prosecution.

Indeed, it was during the court’s direct examination of Rosabel Ortiz that the Trial Judge mistakenly referred to the shooter as “the defendant”, although no witness had up to that point identified defendant as the killer. In addition, the court in direct examination elicited testimony which tended to make the testimony of the Ortiz sisters dovetail better. For example, Rosabel Ortiz had testified that the decedent’s body lay in a north-south direction, with the head facing south. The court obtained essentially the same information from Marivel Ortiz. Rosabel Ortiz had testified that after the shooting the defendant proceeded to the corner of the block, then looked to the left, to the right, and finally directly at her. The court elicited similar testimony from Marivel Ortiz. In short, the court’s direct examination tended to strengthen the testimony of the two eyewitnesses to the killing, without which defendant could not have been convicted.

By far the most prejudicial conduct of the Trial Judge, however, was his constant interruption of defense counsel’s cross-examination to ask questions which would only be proper as redirect examination if asked by the prosecutor. Only one area of inquiry will be used for purposes of illustration, but it is the most important one. Each of the prosecution’s three most important witnesses could be impeached on cross-examination. Michael Chin placed defendant at the scene of the murder by his testimony that he had seen defendant in a beige Nova on Eldridge Street shortly before the murder. Defense counsel sought to impeach Chin by forcing him to admit that he had previously told one Tin Hung Lee that defendant was not in the car, and by forcing Chin to admit that he had previously told defense counsel’s investigator that he was not sure that defendant had been in the beige Nova. The Judge interrupted defense counsel’s cross-examintaion and by repeated and leading questions elicited Chin’s explanation that he lied to Tin Hung Lee because he was afraid that she would revert her allegiance to defendant’s gang and did not want her to know that he could identify defendant as a passenger in the beige Nova. The court also obtained from Chin an explanation of why he had lied to the defense investigator.

In cross-examining Rosabel Ortiz, defense counsel sought to impeach her direct testimony by forcing her to admit that at the Wade hearing she had testified that she thought defendant was the shooter but she was not sure. Interrupting the cross-examination, the court asked Rosabel Ortiz if she was presently sure that defendant was the killer, to which she answered “it looks very much like him”.

Defense counsel was able to impeach Marivel Ortiz’ identification testimony even more effectively. He forced her to admit that she had told the defense investigator that it was too dark to see the shooter and that she had previously told defense counsel that she was not sure that the person she had selected from the lineup had committed the murder. The court interrupted cross-examination and elicited Marivel’s testimony that she had in fact seen the shooter’s face on the night of the killing. Later the court’s questioning brought out from Marivel that when she told defense counsel she was not sure that his client was the shooter, she had lied to him because she wanted to be left alone.

Finally, because of its potential impact on the trial testimony of the witness, we note one instance of redirect by the court in the midst of defense counsel’s cross-examination at the Wade hearing. At that hearing defense counsel forced Marivel Ortiz to admit that she had told the defense investigator that on the night of the murder it was too dark to see the shooter’s face. The court interrupted and asked whether Marivel Ortiz had been able to see the shooter’s face. Initially, she responded that she could “not hardly” see his face, that she “didn’t see it that clear” and that she had not seen it clear enough to identify the shooter. Under continued questioning by the court, Marivel Ortiz ultimately stated that she was certain that defendant had done the shooting. In short, the record is replete with instances in which the court interrupted cross-examination to conduct what may be characterized as redirect examination and thereby defeated defense counsel’s attempt to shake the witness’ testimony.

The last item of the trial court’s conduct on which we comment is the repeated reference to the gang affiliations of the decedent, the defendant and others such as Tin Hung Lee. Indeed, when introducing the jury to the case, the Trial Judge informed them that the indictment alleged that defendant, a member of a group known as the Black Eagles, shot and killed Fong Yue Yee, a member of a group known as the Ghost Shadows. The indictment nowhere referred to the gang affiliations of the defendant or the decedent. When defense counsel requested a mistrial, the court denied the motion on the ground that it expected the prosecution to attempt to prove a motive and that the motive would be gang rivalry. There was no record evidence that gang rivalry had generated similar assaults or murders in the past or that the alleged murder was caused by gang hos-r tility. The Judge during trial not only permitted inquiry by the District Attorney into gang membership but himself participated in the inquiry, either ignoring or overruling defense counsel’s repeated objections. This was obviously a subject better left to inquiry by the District Attorney, if it was to be permitted at all.

The only conclusion that can be reached on this record is that the defendant was denied a fair trial by the Trial Judge’s persistent and improper interference in the examination of witnesses. We therefore reverse and remit for a new trial before a different Judge.

Fuchsberg, J.

(concurring). In my view, there was no effective waiver of counsel at the prearraignment lineup. A critical stage of the proceedings, in this case of intern tional murder, counsel’s insistence on making a hurried exit from the lineup scene was impermissible.

The defendant’s so-called consent to depart has to be regarded as a charade. It certainly was not an informed one. There is not the slightest indication that the client appreciated the importance of the presence of counsel, the recognition of which is at the very heart of the right to counsel rule (People v Hobson, 39 NY2d 479). Indeed, counsel’s manifested intention to absent himself — for no greater announced emergency than to umpire a baseball game — so shocked the Assistant District Attorney that the latter found it necessary to warn counsel that he might be subject to professional discipline. Even then, this delayed him only briefly. Before the lineup itself got underway, to the prosecutor’s disbelief, counsel nevertheless disappeared without notice or explanation. Thereupon, the District Attorney prepared to proceed ex parte. It was only as that was about to take place that counsel, still in absentia, telephoned to inform the District Attorney that the. lineup was fair and his client would consent.

This procedure, engineered, as indicated, by remote telephonic control (see People v Tompkins, 45 NY2d 748), constituted an admixture of a serious instance of defective assistance of counsel and of an impermissible waiver of counsel in the absence of counsel. Separately and in combination, these were violative of both the spirit and letter of the two rights they offended (People v Settles, 46 NY2d 154, 165 [lineup identification]).

The motion to suppress should, therefore, have been granted. For that reason alone, I would join in the reversal.

As to the trial court’s participation in the trial, however, my own examination of the lengthy record compels me to support the conclusion of both Chief Judge Cooke and the Appellate Division that it did not deprive the defendant of a fair trial or of a fair opportunity to present his defense. A conscientious Trial Judge, who must make most trial management decisions on the spot, may elicit important or relevant facts by participating in the questioning of witnesses on matters which may significantly promote a just determination of the trial. Lest we encourage indifference on the part of our Trial Judges, they should not be deterred in their exercise of this discretion by the possibility that, from the unhurried hindsight enjoyed by a reviewing tribunal, it would have preferred a different or lesser degree of participation. Furthermore, my own judgment of the cold record convinces me that in this case the numerous questions the Trial Judge thought necessary, while assuredly greater than others might have asked, were almost invariably relevant and uninhibitedly productive or confirmatory of truth.

Judges Jasen, Gabrielli, Jones and Wachtler concur with Judge Meyer ; Judge Fuchsrerg concurs in result in a separate opinion; Chief Judge Cooke dissents and votes to affirm for reasons stated in the memorandum at the Appellate Division (73 AD2d 538).

Order reversed and the case remitted to Supreme Court, New York County, for a new trial.

      . (United States v Wade, 388 US 218.)

      . Stone was unclear concerning whether his discussion with defendant occurred before he left the District Attorney’s office or on the telephone. Defendant’s new attorney indicated his intention to call defendant as a Wade hearing witness to testify that no such conversation occurred, but when the court indicated an intention to allow cross-examination concerning whether defendant protested counsel’s absence, withdrew defendant as a witness. The Hearing Judge found that defendant had agreed in a telephone conversation with Stone that Stone’s presence was not necessary and concluded that defendant and his counsel had waived the presence of counsel at the moment of identification.

      . Sears’ fear may not have been totally unfounded. The Assistant District Attorney reported a telephone call from Marivel Ortiz’ boyfriend in which he detailed a call to him threatening her life and the lives of his mother and MarivePs mother if the Ortiz sisters testified.

      . That defendant had talked to his attorney by telephone would not be sufficient by itself. People v Tompkins (45 NY2d 748, supra) involved waiver by a defendant who, after talking on the telephone with his attorney, announced to the authorities his intention to disregard the attorney’s advice and make a statement in the attorney’s absence. We held that statement inadmissible, the attorney not having been present when defendant communicated it, a different situation from the present case in which the communication with the authorities is by counsel after obtaining defendant’s counseled consent.

      . That the problem is not a new one, see People v Ohlstein (54 AD2d 109, 113, affd 44 NY2d 896) (“We must parenthetically note that the zeal of the Trial Justice in this case [e.g., in his interjection in questioning], while not rising to the level of reversible error, should in the future be curbed. A Trial Justice must be impartial and dispassionate and not appear as an advocate”), as well as People v Mees (47 NY2d 997), both involving interference in the trial process.

      . The difficulty of presenting such an objection is well illustrated by the record before us. Defense counsel first objected to the Trial Judge’s interference when the Judge attempted to conduct a direct examination of a defense witness. Defense counsel objected that the Judge was cross-examining and asked that he be allowed to resume direct examination. The court ignored the objection and continued questioning the witness. When the court continued examining the witness, defense counsel requested a sidebar to renew the objection. Three times the court refused a sidebar and ultimately excused the jury only to scold defense counsel for Ms persistence. Defense counsel, apparently believing that it was important to register Ms objection before further court examination, asked to state his objection while the jury was out of the courtroom. Again the court refused. When defendant asked that the record reflect that the Judge was shouting, he was held in contempt of court. Only after trial resumed and the court had completed examination of the witness did he allow defense counsel to object, and then only in the presence of the jury. Then defense counsel again objected, stating: “Judge, [t]hat you’re conducting cross-examination for the prosecution, that you’re assuming the prosecution’s function”. The objection was overruled, as was the succeeding objection to being forced to make Ms objections to the Judge’s actions in front of the jury.

      . See, also, the Introduction to the 1972 Approved Draft of the Standards at pages 3 and 4.

      . Nor will the unfairness generally be curable by an instruction such as was given here that the court’s questions are to be given no greater weight than those of the attorneys. .


author: Per Curiam.

text:
    In the Matter of Patricia Cooley, as a Justice of the Village Court of Alexandria Bay, Petitioner. State Commission on Judicial Conduct, Respondent.
    .Argued April 27, 1981;
    decided June 4, 1981
    POINTS OF COUNSEL

      George P. McAloon for petitioner.
    Petitioner’s actions do not warrant the extreme sanction of removal from office. (Bartlett v Flynn, 50 AD2d 401.)

      Ramond S. Hack, Gerald, Stern and Seth A. Halpern for respondent.
    Petitioner’s repeated refusal to cooperate with the commission, including her failure to appear before the commission as required by law, and her misconduct relating to recordkeeping and reporting render her unfit for judicial office; hence, the commission’s determination should be accepted. (Matter of Rogers v State Comm. on Judicial Conduct, 51 NY2d 224; Bartlett v Flynn, 50 AD2d 401, 39 NY2d 942; Matter of Osterman, 13 NY2d [a].)
   OPINION OF THE COURT

Per Curiam.

The Commission on Judicial Conduct has determined that petitioner Cooley should be removed from her position as a Justice of the Village Court of Alexandria Bay, Jefferson County. Petitioner was charged by the commission with misconduct for failing to file reports and remit moneys received in her judicial capacity to the State Comptroller within the time required, failing to make entries in her docket books and cashbooks and, finally, failing to cooperate with an investigation being conducted by the commission.

It was alléged that during the period from January, 1979 to January, 1980, petitioner had remitted her reports and fine moneys several months late on separate occasions. Subdivision 1 of section 2021 of the Uniform Justice Court Act requires that “such fines shall be paid to the state comptroller by the court on or before the tenth day of the month next succeeding their collection”. In addition, petitioner allegedly failed to make entries in her docket books or cashbook during the period from April, 1979 to December, 1979, despite the fact that she disposed of at least 300 motor vehicle cases in that period (see UJCA, §§ 107, 2019, 2019-a). Finally, petitioner failed to respond to three written inquiries sent by the commission’s senior attorney pursuant to subdivision 3 of section 42 of the Judiciary Law and failed on two occasions to appear to testify before a member of the commission after being requested to appear pursuant to subdivision 3 of section 44 of the Judiciary Law.

Petitioner did not answer the charges of the commission and she was later notified that the commission intended to move for summary determination. Petitioner also failed to respond to the notice of motion for summary determination and subsequently informed the commission that she would not appear for argument on the issue of sanctions. The commission thereafter made its final determination and, noting that petitioner’s inadequate reporting and record-keeping “evinced a tardiness and carelessness inconsistent with her position of trust and responsibility as a judicial officer”, concluded that petitioner should be removed from office.

Petitioner, citing Matter of Rogers v State Comm. on Judicial Conduct (51 NY2d 224), argues primarily that the sanction of removal was unwarranted because her failure to file timely reports does not indicate an unwillingness to discharge the repsonsibilities of judicial office. Unlike Rogers, however, here petitioner failed and refused to submit an answer in response to the commission’s charges and failed, of course, to set forth mitigating circumstances to account for her failure to comply with the filing and recordkeeping requirements. In addition, petitioner was also found to have failed to make appropriate entries in her docket book and cashbook. This charge is not without significance, for the willful failure to make appropriate entries in a Justice’s criminal records and docket may be punishable as a misdemeanor (UJCA, § 2019-a) and even the inadvertent failure to keep such records may be of moment to persons having appeared before the court (see CPLR 4541). Furthermore, we take note of the significance of petitioner’s failure to cooperate with the investigation by the commission.

Accordingly, the determination of the State Commission on Judicial Conduct should be accepted, without costs.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion; Chief Judge Cooke taking no part.

Determined sanction accepted, without costs, and Patricia Cooley is removed from her office of Justice of the Village Court of Alexandria Bay, Jefferson County.


author:
Fuchsberg, J.
      Meyer, J.

text:
    Mildred La Guardia, Respondent, v Robert Cavanaugh, Appellant.
    Argued March 24, 1981;
    decided June 4, 1981

      POINTS OF COUNSEL

      Edward C. Wallace, Bernard C. Durham, Kalman Finkel and James Francis for appellant.
    I. The Emergency Tenant Protection Act (ETPA) as adopted by New York City, extends Pent stabilization protection to tenants residing in class B multiple dwellings. (Matter of Zeitlin v New York City Conciliation & Appeals Bd., 46 NY2d 992; Matter of Klein v Conciliation & Appeals Bd., 64 Misc 2d 329, 36 AD2d 1023; Axelrod v Starr, 52 AD2d 232, 41 NY2d 942; Minton v Dornb, 63 AD2d 36; Post v Reynolds, 101 Misc 2d 504; Mandel v Pitkowsky, 102 Misc 2d 478.) II. Petitioner failed to prove a prima facie case as a matter of law. (Goldman Bros, v Forester, 52 Misc 2d 812.)

      Gary M. Rosenberg, Robert M. Goldstein, Warren A. Estis and Sherwin Belkin for respondent.
    I. Chapter 576 of the Laws of 1974, did not extend the Rent Stablization Law of 1969 to cover class B multiple dwellings. (Matter of Zeitlin v New York City Conciliation & Appeals Bd., 46 NY2d 992; Axelrod v Starr, 52 AD2d 232, 41 NY2d 942; Minton v Domb, 63 AD2d 36; Matter of Rosenbluth v Finkelstein, 300 NY 402; Park of Edgewater v Joy, 68 AD2d 107.) II. Landlord did prove a prima facie case.
   OPINION OF THE COURT

Fuchsberg, J.

This appeal calls upon us to say whether the effect of the State’s enactment of chapter 576 of the Laws of 1974, including its section 4 (Emergency Tenant Protection Act of 1974), was to extend “rent stabilization” to tenants residing in class B multiple dwellings in New York City. Needless to say, in doing so, our duty is neither to expand nor contract rent regulation, nor, for that matter, to impose our own judgment as to whether one manner of achieving it or another is wise or necessary. Rather, since such considerations are most often within the sole province of the Legislature, our own task, of course, is to interpret, not alter, the statutes by which that branch of the government has decided to implement the underlying decisions it has reached. For the reasons which follow, the statutory language, antecedent history and practical construction of chapter 576 compel us to conclude the class B multiple dwellings are not within this statute’s embrace.

We begin with a definition, that of multiple dwellings, which, as defined by statute, are premises “rented, leased, let or hired out, to be occupied, or [are] occupied as the residence or home of three or more families living independently of each other” (Multiple Dwelling Law, § 4, subd 7). These dwellings are classifiable, somewhat overlappingly, as either A or B (Multiple Dwelling Law, § 4, subd 7). A class A multiple dwelling “is occupied, as a rule, for permanent residence purposes” while a class B multiple dwelling, essentially not one constructed for householding, “is occupied, as a rule transiently, as the more or less temporary abode of individuals or families who are lodged with or without meals” (Multiple Dwelling Law, § 4, subds 8, 9).

Since 1976, the tenant, Robert Cavanaugh, has resided in a pre-1947 class B multiple dwelling owned by the landlord, Mildred La Guardia. In June, 1978, the landlord, alleging a default in the tenant’s payment of rent for his 10-foot by 12-foot room in Manhattan’s Chelsea neighborhood, commenced a summary dispossess proceeding in New York City Civil Court. In accord with statutory and regulatory provisions, which require that the petition by which such a proceeding is initiated contain a statement as to the building’s regulatory status (see Real Property Actions and Proceedings Law, § 741, subd 4; 22 NYCRR 2900.21 [e]), it stated that the building was a class B multiple dwelling and, therefore, not subject to the Rent 'Stablization Law of 1969, which, as amended, had spoken only of class A buildings as such.

The issue was joined when the tenant moved to dismiss the petition on the ground that the building indeed was subject to this statute. Whether the motion was formally denied before trial or was simply subsumed in the Civil Court’s judgment is not clear from the record. In any event, the case proceeded to trial and eventuated in a judgment for the landlord. On appeal, the Appellate Term, expressly finding that class B multiple dwellings are not subject to the prevailing stabilization law, modified the judgment as it related to the amount of rent found to be due, but affirmed in all other respects. In turn, the Apellate Division unanimously affirmed, without opinion, and granted leave to appeal to this court.

The simplicity of this factual and procedural background is in sharp contrast to the maze of relevant rent laws on whose interpretation its resolution depends. A “patchwork” of legislation that has responded to decades of social, economic and political pressure, it has been characterized by this court as an “impenetrable thicket confusing not only to laymen but to lawyers” (Matter of 89 Christopher v Joy, 35 NY2d 213, 220). Perhaps this should not be surprising in a changing series of controls which, though they have been with us now for. so long, more often than not have been extemporized as “emergency” or “temporary” measures. It is nonetheless essential to our analysis that we make some order of this morass.

To that end, we note that there are two basic forms of rent regulation presently applicable to New York City: rent control and rent stabilization.

The city’s rent control law is a direct descendant of Federal regulation which, during World War II, was imposed by the former Office of Price Administration to deal with the aftermath of a war-stimulated housing shortage (Federal Emergency Price Control Act of 1942, US Code, tit 50, Appendix, § 901 et seq.; see Levy, Rent Control in New York City, 47 NYS Bar J 193). After hostilities ceased, though the descriptively named Office of Price Administration was disbanded, Federal regulation was continued under the aegis of the Federal Housing and Rent Act of 1947 (US Code, tit 50, Appendix, § 1881 et seq.).

A tracking of ensuing legislative developments reveals that, starting in 1946 and in anticipation of the lifting of Federal controls, the State formulated its own standby plan to meet what it perceived to be a continuing problem (see Emergency Housing Rent Control Law, L 1946, ch 274; amd L 1947, ch 704, L 1948, ch 678, L 1949, ch 591). As might be expected, when the State statutory scheme took over, it eased the transition by patterning itself in part after the one it supplanted. Significant in the context of this case is that the State’s statute took as its own the exemption from regulation which latter day Federal administration had granted to housing built after 1947 (see L 1950, ch 250,. § 2, subd 2, par [g] ; Federal Housing and Rent Act of 1947, US Code, tit 50, Appendix, § 1892, subd [c], par [3]; Pitts v McGoldrick, 302 NY 938, affg without opn 200 Misc 150; Teeval Co. v Stern, 301 NY 346).

It suffices for our purposes to now move to 1962, when our State Legislature passed the Local Emergency Housing Rent Control Act (L 1962, ch 21). In essence, this act delegated complete authority over rents for housing accommodations within the boundaries of New York City to that municipality (L 1962, ch 21, § 1, subd 5). The city then followed suit by enacting its own rent control law (City Rent and Rehabilitation Law, Local Laws, 1962, No. 20 of City of New York, Administrative Code, § Y51-1.0 et seq.). Its ordinance did not differentiate between class A and B multiple dwellings. At that time, it imposed its control over both.

However, the city law, as had Federal and State regulation before it, continued the exemption for post-1947 dwellings. The laissez-faire rationale for leaving this newer stock of housing uncontrolled was that “the market, governed by supply and demand, would work reasonably and controls would be unnecessary” (8200 Realty Corp. v Lindsay, 27 NY2d 124, 136). But this expectation proved to be unfounded. An inflationary spiral in the late 1960’s operated on a contracting housing supply to enable landlords of many post-1947 buildings to demand large rent increases (id.; Levy, 47 NYS Bar J 193, 194).

This brought further local legislative action. The New York City Council, resorting to the authority with which it had been endowed by the Local Emergency Housing Rent Control Act back in 1962, reacted by passing the so-called Rent Stabilization Law of 1969 (RSL of 1969) (Local Laws, 1969, No. 16 of City of New York, Administrative Code, § YY51-1.0 et seq.).

In pertinent part, this ordinance provided: “§ YY513.0 Application. This law shall apply to class A multiple dwellings not owned as a cooperative or as a condominium, containing six or more dwellings units which: a. were completed after February first, nineteen hundred forty-seven, except [the categories of dwelling units here enumerated] .”

It was in this fashion that rent regulation for the first time was extended to the theretofore uncontrolled post-1947 buildings. But, as the text of this local legislation reveals, save for its specified and on this point irrelevant exemptions, it expressly took in only class A dwellings. Neither directly nor indirectly, neither by name nor by description, did it include those categorized as class B. Thus, in an important respect, this exercise of local power facially was narrower than the broader options which had been committed to it by the 1962 State seminal statute from which derived the city’s right to legislate on this matter.

Breaking it down more concisely, section YY51-3.0 established four prerequisites for the application of its provision. The building had to (1) be a class A multiple dwelling; (2) not be owned as a co-operative or as a condominium; (3) contain six or more dwelling units, and (4) have been completed after February 1, 1947. The result was to exclude class B multiple dwellings from the coverage of the Rent Stabilization Law of 1969. Thus was the relevant range of regulation by stabilization limited.

Nevertheless, surely, as of then, this represented a high water mark for expansion of rent regulation in New York City. For the next substantial remodeling of the statutory structure, this time cutting back on the range of regulation, was not too long in coming. In the wake of the passage of the city’s Rent Stabilization Law, new construction had come to a virtual standstill. Fear of the economic impact of future local rent control legislation had caused private sector builders and investors to withdraw from the market. And, the lack of incentive for maintenance and upgrading of existing housing was leading to massive deterioration and abandonment of older buildings. In 1971, the State decided to intervene With overriding legislation. (See Memorandum of State Executive Department, McKinney’s Session Laws of NY, 1971, pp 2400-2401; Governor’s Memorandum on Approving L 1971, chs 371-374, McKinney’s Session Laws of NY, 1971, pp 2608-2609).

One of the remedial statutes adopted for that purpose was the “Vacancy Decontrol Law.” It provided that “[notwithstanding any local law or ordinance, housing accommodations which become vacant shall be exempt from regulations and control” (L 1971, ch 371, §6). Enacted simultaneously was the “Urstadt Law” (L 1971, ch 372), which prohibited New York City from regulating any housing accommodation which was either then exempt from control or might become so in the future pursuant to chapter 371. The net effect of these laws was to destabilize or to decontrol, as the case might be, any specific apartment upon the tenant’s departure therefrom and to preclude New York City from enacting any legislation which would increase regulation of housing. Class A and Class B multiple dwellings were both subject to the vacancy decontrol laws.

However well intended, these legislative efforts too turned out to be no panacea for the New York City housing quagmire. While the tenants who resided in apartments which had been destabilized or decontrolled were subjected to ever-increasing rents, the massive construction which had been envisioned did not materialize. To complicate matters, the city’s rent control administration itself was becoming so “hopelessly bogged-down” that mandated adjustments would eventually be literally years in arrears (Matter of Tenants’ Union of West Side v Beame, 40 NY2d 133, 137). Once again, a solution was sought in “emergency” State legislation, chapter 576 of the Laws of 1974.

Section 4 of this chapter — The Emergency Tenant Protection Act of 1974 (ETPA) — is not a rent and eviction regulating law. Instead, it is an enabling act, which empowered New York City and certain suburban local governments to impose, or, as in New York City, where it already existed, to extend rent stabilization. To do so, the legislative body of the local government is required to declare the existence of an emergency in the supply or condition of housing accommodations within its jurisdiction (ETPA, § 3). Such-declaration of emergency is permitted as to “all or any class or classes of housing accommodations” in a municipality, subject to enumerated exceptions including one which provides that “housing accommodations subject to the * * * local emergency housing rent control act” would not be regulated by the ETPA (ETPA, § 5, subd a, par [1]). However, which “housing accommodations” are in fact to be affected is left to the locality.

Also relevant here is section 7 of chapter 576, which provided for the amendment of the “applicability” provision of New York City’s Rent Stabilization Law of 1969 (§ YY51-3.0). Except for renumbering, it did so by adopting the original verbatim text of the city’s section YY51-3.0 as its very own. The sole substantive change was to add a subdivision lettered “b”. Graphically, this section of the city’s stabilization law, as adopted by State law, reads as follows:

“YY51-3.0 Application
“This law shall apply to
“a. Class A multiple dwellings not owned as a cooperative or as a condominium, containing six or more units which: (1) were completed after February first, nineteen hundred forty-seven * * * and
“b. other housing accommodations made subject to this law pursuant to the emergency tenant protection act of nineteen seventy-four.” (Emphasis is added to identify the new matter.)

In due course, New York City invoked the protections of the ETPA by declaring an emergency in a broadly worded resolution: “[T]he Council hereby determines that * * * [an] emergency exists and will continue to exist for all classes of housing accommodations within the City of New York ” (New York City Council Res No. 276, June 20,1974).

h ow, it is essentially on the breadth of this declaration and the seemingly all-encompassing nature of the bald language of section YY51-3.0’s new subdivision b that the tenant posits its contention that the city and the State Legislature implicitly extended rent stabilization beyond post-1947 class A multiple dwellings to take in pre-1947 class B multiple dwellings as well. Given that chapter 576 was to effect some expansion of regulation, it cannot be gainsaid that this argument has at least a superficial appeal. However, on closer consideration, it proves too much. For, if taken to its logical conclusion, it would extend rent stabilization to all housing accommodations other than those which had been specifically exempted from regulation by section 5 of the ETPA. By so doing, it would effectively render subdivision a of section YY51-3.0 a nullity.

But this would have made the affirmative act of importing subdivision a of section YY51-3.0, lock, stock and barrel, into the State statute all but pointless. Had the 1974 intention been to do a turnabout by including class B dwellings, the last thing one would have expected was an unaltered re-enactment. At the very least, the newly added subdivision b then would have carried some indication that it qualified or modified the now long-established impact of subdivision a on “multiple dwellings”. Instead, from the State’s precise, down-to-the-last syllable duplication of the original subdivision a of section YY51-3.0 as it was lodged in New York City’s Administrative Code, it can only be assumed that the State Legislature’s sophisticated bill drafters, in their avoidance of even the slightest amendment in its terminology, were carrying out an intent to eliminate any need for reinterpretation.

Moreover, whatever the other directions in which the city may have wished to extend stabilization, both the practice and the policy it consistently and unmistakingly pursued after its proclamation was one completely at odds with any plan to resurrect regulation of class B dwellings. To the contrary, these essentially kitchenless, bathroomless single-room accommodations, while they may have been swept into the orbit of the original omnibus wartime controls, were by the 1970’s “obsolescent” and in the process of being phased out of New York City’s housing inventory (Sternlieb and Hughes, Housing and People in New York City, Jan. 1973, reprinted in 1973 Proceedings of the Council of the City,of New York, vol 1-A, p 490). Where there had been approximately 129,000 units in 1960, in 1970 the number had fallen to 63,000 and in 1978 stood at 25,000 (Sternlieb and Hughes, p 490; Marcuse, Rental Housing in the City of New York, reprinted in the City Record, stated meeting of Feb. 27, 1979, p XXVIII).

The city government was no passive witness to this decline. It gave it strong encouragement. Characteristic of its regulatory disfavor of class B housing was its so-called section J51 program of tax abatement for improvement of substandard dwellings. Under it, during all of the past decade, the city offered its incentives to class B multiple dwellings only if and when these were upgraded to class A and were no longer used in whole or in part for single-room occupancy (see Administrative Code, § J51-2.5, subd a, par 2; subd b; subd d, par 2). Paradoxically, most often this meant they could only survive if they disappeared.

That was not all. An equally persuasive indication that the addition of subdivision b of section YY51-3.0 did not cut back on the 1974 State-adopted edition of subdivision a of section YY51-3.0’s exclusion of class B multiple dwellings is to be found in the fact that, in the nearly seven years that it has now been on the books, the city has not been governed by the reading the tenant now would force upon it. Instead, the Rent Stabilization Association, the agency charged with direct responsibility for the stabilization program, gave the exclusion of class B dwellings its imprimatur of approval (see Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

More specifically, when, as we have seen, New York City introduced the concept of rent stabilization in 1969, in what was then an experiment in self-regulation, it specifically authorized the Rent Stabilization Association, whose members are interested property owners, to draft a code detailing the terms and conditions of such tenants’ occupancies (Administrative Code, § YY51-6.0, subd b, par [2]). In 1974, the State indorsed this plan for New York City when it authorized the methodology for administration of the 1969 ordinance to apply to the housing brought under stabilization by chapter 576 (ETPA, § 8, subd c).

These grants of authority to the association, first by the city and then by the State, were never untrammeled. At all times, both when the association drew the initial code and, subsequently, when it proposed changes, the city’s official Housing Development Administration (now its Department of Housing Preservation and Development), in which resided over-all supervision of the regulatory process, had to give approval (see Administrative Code, § YY51-6.0, subd b, par [2]; subd c). It was pursuant to this procedure that the code, even after chapter 576 was passed, provided that it would apply to those dwelling units “located in any Class A multiple dwelling” (Code of Real Estate and Stabilization Assn. of New York City, § 2, subd [f]; emphasis added). As the Appellate Division put it comprehensively in Axelrod v Starr (52 AD2d 232, 236, affd 41 NY2d 942), the State “ [continued] the old provisions of section YY51-3.0 which had existed since 1969”. In the face of all this, that neither the State nor the city in all this time had taken any action to upset the practical construction that has been in force is most strongly suggestive that it truly reflects the intention of its sponsors (see Engle v Talarico, 33 NY2d 237, 242).

Finally, even when this less than ideally drawn statute is read in isolation, balanced analysis leads to the same conclusion. The tool we take to this task is the legal diplomacy of the common-sensible statutory construction principle that, “when it is practicable to give to each a distinct and separate meaning”, effect shall be given to every part of an enactment (McKinney’s Cons Laws of NY, Book 1, Statutes, § 231). By that criterion, we cannot overlook the fact that the theory tendered by the tenant fails to reconcile the continuing viability of subdivision a with a purposeful subdivision b. To be sure, the thrust of subdivision b was to widen the regulatory scope of the stabilization system launched by the city in 1969. Nonetheless, the internal evidence makes manifest that the State did not intend to assert its prerogative that subdivision b become a catchall to gather all housing within its regulatory embrace.

A noteworthy difference between the two subdivisions is that “a” stays with the long-used statutory term “multiple dwellings”, while subdivision b speaks more vaguely of “other housing accommodations’ ’. Thus the first subdivision defines the class of multiple dwellings which could be within the embrace of the rent stabilization law. Only those which met the definitional prerequisite of being a class A multiple dwelling could possibly be regulated. Since the express inclusion of a particular thing implies the omission of others, class B dwellings were not covered (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 240).

The addition of subdivision b did not affect this exclusion. The “other housing accommodations” which could be subject to stabilization were those additional units subject to the city’s declaration of emergency and which met subdivision a’s condition precedent of being a class A multiple dwelling. On this rationale alone it follows that, since the tenant’s room in the present case is in a class B multiple dwelling, it necessarily remained regulation free even after chapter 576 came into existence.

Consistently, it is of more than passing significance that, in a closely analogous context, the Appellate Division upheld the continued nonregulation of co-operative apartments despite subdivision b’s general language. (Minton v Domb, 63 AD2d36 [Evans, J.]; see Conciliation and Appeals Bd Opn No. 2926; Atty Gens Adv Opn No. 488-4220, Dec. 2,1975 [each finding that subdivision b did not negate subdivision a’s exclusion of co-operatives]). The similarity between the two cases derives from the fact that just as a multiple dwelling’s class A status is a condition precedent to rent stabilization law coverage, so too is not being a co-operative. The Appellate Division thus logically found that subdivision b had no effect on subdivision a of section YY51-3.0’s preconditions for regulation.

It therefore would be a mistake to assume that our decision in Axelrod v Starr (41 NY2d 942, affg 52 AD2d 232, supra) is to the contrary. The focus there was not on subdivision a of section YY51-3.0’s exclusions (housing units not covered because definitionally excepted), but rather on exemptions (housing units which meet the statutory conditions precedent to regulation, but are, as an act of legislative grace, nonetheless excepted) (cf. Matter of Grace v State Tax Comm., 37 NY2d 193, 196). Axelrod simply stands for the proposition that to the extent that an enumerated exception to stabilization in section 5 of the ETPA applied, “it should supersede pre-existing exemptions” Axelrod v Starr, supra, p 235).

On all the foregoing — the antecedent history of rent regulation in New York City, the particular provisions of the 1969 and 1974 legislation to which we have alluded, the regulatory housing environment in which these statutes were born, the external and internal evidences of legislative intent which we have noted — we conclude that if we are to enforce the law rather than to write it, to fulfill our duty to adjudicate rather than to legislate, the order of the Appellate Division should be affirmed.

Meyer, J.

(dissenting). I dissent. The majority’s conclusion is contrary to the plain meaning of the controlling statute and its legislative history, and contrary to the rationale in Kurcsics v Merchants Mut. Ins. Co. (49 NY2d 451), Matter of Zeitlin v New York City Conciliation & Appeals Bd. (46 NY2d 992), and Axelrod v Starr (41 NY2d 942).

The class B housing unit here in issue was subject to the rent control law (Administrative Code of City of New York, tit Y) until its first vacancy after the effective date of the 1971 Vacancy Decontrol Law (L 1971, ch 371). On that date the unit became “decontrolled”. Thereafter, in 1974, the Legislature enacted the Emergency Tenant Protection Act (EPTA) (L 1974, ch 576, § 4). That statute in subdivision a of section 3 authorized the city, upon the declaration by the city council that there existed a state of housing emergency, to extend coverage of the 1969 Rent Stabilization Law (Administrative Code, tit YY) to: “[A] 11 or any class or classes of housing accommodations heretofore destabilized; heretofore or hereafter decontrolled, exempt, not subject to control, or exempted from regulation and control under the provisions of the emergency housing rent control law, the local emergency housing rent control act or the New York city rent stabilization law of nineteen hundred sixty-nine.” The same statute (L 1974, ch 576), section 4 of which enacted the EPTA, in section 7 amended the Rent Stabilization Law to give effect to the expanded coverage, when and if an emergency were declared, by adding to section YY51-3.0 a new subdivision b making the Rent Stabilization Law applicable to “other housing accommodations made subject to this law pursuant to the emergency tenant protection act of nineteen seventy-four.”

The city council acting under the authority thus granted to it thereafter adopted Resolution No. 276 of 1974. That resolution made the requisite declaration of emergency and then imposed “the full degree of regulation and tenant protection authorized or established by [the Emergency Tenant Protection Act].” Indeed, tracking the language of the enabling statute (EPTA, § 4, subd [a]), the resolution imposed rent stabilization upon: “[A] 11 classes of housing accommodations within the City of New York including, but not limited to, housing accommodations heretofore destabilized, heretofore or hereafter decontrolled, exempt, not subject to control, or exempted from regulations and control under the provisions of the local Emergency Housing Rent Control Law or the City Rent Stabilization Law.”

The inescapable conclusion is that class B multiple dwellings became subject, by reason of Resolution No. 276 and the enabling act pursuant to which it was adopted, to the Rent Stabilization Law, for it clearly was, within the meaning of both, a “housing accommodation * * * heretofore * * * decontrolled.” The majority apparently does not dispute this conclusion, but argues, rather, that the Legislature (and the city council) cannot really have meant what the plain meaning of the words used and action taken clearly says because that would render subdivision a a nullity by including within its embrace housing units expressly or implicitly excluded from it. That argument is, however, answered by our decision in Axelrod v Starr (41 NY2d 942, supra). In that case we affirmed “on the opinions by Mr. Justice Nathaniel T. Helman at Special Term and Mr. Justice Samuel J. Silverman at the Appellate Division (52 AD2d 232).” That the same argument here made as to class B dwellings was there made and overuled as to dwelling units financed by a public agency is clear from the following portion of Justice Silverman’s opinion (52 AD2d, at p 234):

“Plaintiffs contend that their properties are exempt by reason of the exception contained in clause (a) of paragraph (1) of subdivision a quoted above; and that the provision of subdivision b making the law applicable to ‘other housing accommodations made subject to this law pursuant to the emergency tenant protection act of nineteen seventy-four’ refers only to ‘other’ housing accommodations, other than those exempted by subdivision a. Defendants city agencies contend that subdivision b makes the law applicable to ‘other,’ in the sense of ‘additional,’ accommodations, additional to those' covered by subdivision a and specifically including those exempted from subdivision a.

“I think the defendants’ interpretation is correct.”

The reasoning upon which that conclusion was based is spelled out at pages 234 to 236 of the Appellate Division opinion and need not be repeated here. It is sufficient simply to note that by affirming on the Silverman opinion we adopted an interpretation contrary to that now espoused by the majority.

Nor can Matter of Zeitlin v New York City Conciliation & Appeals Bd. (46 NY2d 992, supra) be disposed of as facilely as the majority seeks to in its footnote 9. In Zeitlin a tenant used two rooms of his nine-room rent-controlled apartment for business purposes. As a result, the apartment became “decontrolled” for as long as he continued this professional use. Nonetheless, we held that the decontrol of the apartment, even though temporary, brought the apartment within the broad scope of the Emergency Tenant Protection Act in that the apartment had been exempted from coverage under prior legislation. We established a straightforward formula for determining rent stabilization applicability: (1) Is the unit a housing accommodation? (2) Was the unit excluded from regulation under prior law? If the answer to both questions is yes, we concluded, then rent stabilization applies (46 NY2d, at p 995). Since our decision in Zeitlin both the Appellate Term (Mandel v Pitkowsky, 102 Misc 2d 478) and the Civil Court (Post v Reynolds, 101 Mise, 2d 504) have followed its reasoning in concluding, respectively, that loft accommodations used residentially and class B multiple dwellings are subject to control. Since as to the unit involved in this appeal the answer to both of Zeitlin’s questions is in the affirmative, the order of the Appellate Division should be reversed on Zeitlin alone.

Finally, in its reference to the code of the Rent Stabilization Association (p 78), the majority opinion seeks support from statutory construction rules concerning the practical construction given by the agencies charged with enforcement and the failure of the State or city to take action to upset a construction thus made (p 78). The answers are several. First, the city did in Axelrod oppose the construction which the code and the majority now give to subdivision b. Secondly, the suggestion wholly ignores our recent statement in Kurcsics v Merchants Mut. Ins. Co. (49 NY2d 451, 459, supra) that: “Where * * * the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore to be accorded much less weight. And, of course, if the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight.” (Emphasis supplied.) Thirdly, if we agree for purposes of argument that the failure of the city, through its Housing Development Administration, to contest the Rent Stabilization Association’s erroneous construction could alter the city council’s legislative intent to extend rent stabilization to class B multiple dwellings, there is little other than the code, the product of an association the membership of which consists exclusively of interested property owners, to guide us to that conclusion. To find in legislative inaction the adoption of a conclusion diametrically opposed to the original legislative intent is “ ‘at best treacherous’ ” (Boys Markets v Clerks Union, 398 US 235, 241), the more so when judicial construction has accorded with the original intent and the plain meaning of the words, and what is to be acted against is an administrative construction that “runs counter to the clear wording” of the statute (Kurcsics, supra).

The order of the Appellate Division should be reversed.

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

Order affirmed, with costs.

        . Still later, in 1971, when the Vacancy Control Law, which decontrolled apartments as they were vacated by existing tenants was instituted (L 1971, ch 371, § 6), the rising tide of rents was to become even more widespread.

      . For an informative discussion of the regulatory differences between rent control and rent stabilization, see this court’s opinion in 8200 Realty Corp. v Lindsay (27 NY2d 124, supra).

      . The complete text of subdivision a of section YY51-3.0 follows:
      “This law shall apply to class A multiple dwellings not owned as a cooperative or as a condominium, containing six or more dwelling units which:
      “a. were completed after February first, nineteen hundred forty-seven, except dwelling units (1) owned or leased by, or financed by loans from, a public agency or public benefit corporation, (2) subject to rent regulation under the private housing finance law or any other state law, (3) aided by government insurance under any provision of the National Housing Act, to the extent this local law or any regulation or order issued thereunder is inconsistent therewith, or (4) located in a building for which a certificate of occupancy is obtained after March tenth, nineteen hundred sixty-nine; or (5) any class A multiple dwelling which on June first, nineteen hundred sixty-eight was and still is commonly regarded as a hotel, transient hotel or residential hotel, and which customarily provides hotel service such as maid service, furnishing and laundering of linen, telephone and bell boy service, secretarial or desk service and use and upkeep of furniture and fixtures”.

        . It is undisputed that, in the present case, the tenant’s apartment was within the embrace of this legislation.

      . Although McKinney’s Session Laws of New York, 1974, states that chapter 576 was passed after a gubernatorial message of necessity and by citing the relevant New York constitutional and statutory home rule provisions (NY Const, art IX, § 2, subd [b], par [2]; Legislative Law, § 55 [cited incorrectly as § 44]) implies that New York City specifically requested the legislation, it would appear that the Governor in fact certified the necessity of the legislation in order to permit the bill to be voted immediately, rather than waiting three days as would otherwise be required by section 14 of article III of the Constitution (see Public Papers of Governor Malcolm Wilson, 1973-1974, pp 439-440). The absence of any “home rule” message in the Legislature’s bill jacket confirms this view.

      . The counties to which the act is applicable are Nassau, Westchester and Rockland (ETPA, §14).

      . This amendment was only to take effect if the city declared an emergency and sought to make the ETPA applicable to it. Such a State statute apparently was required to actually implement the changes in the city’s RSL of 1969 because the vacancy decontrol laws had left the city powerless to subject any housing accommodation to more stringent regulation than that existing in 1971.

      . The power of the Rent Stabilization Association is also circumscribed in the vital respect that it is not the association, but the Rent Guidelines Board, an independent city agency each of whose members must be a housing, finance or economics expert, which annually establishes the maximum levels for which fair rent increases, if any, may be allowed (see Administrative Code, § YY51-5.0, subd a; subd b, par [3]).

      . In this setting, however, we observe that subdivision a’s requirement that the accommodation be in a post-1947 building no longer need always be met. In Matter of Zeitlin v New York City Conciliation & Appeals Bd. (46 NY2d 992), in which we treated with an individual unit’s regulatory status, we therefore were able to hold that a rent-controlled apartment in a class A multiple dwelling which became exempt from control was subject to rent stabilization under chapter 576. There was no direct occasion for us to there deal with the issue of whether class B multiple dwellings had become subject to stabilization. It follows that, contrary to what the dissent suggests, the criteria adverted to in our memorandum in that case was applicable to the class of buildings before us then.

      . Amendment by the Legislature rather than the council was necessary because the council had been left powerless by the “Urstadt Law” (L 1971, ch 372), which prohibited the city from imposing any additional regulation on unregulated housing units.

      . The “nullity” argument is, in any event, specious because, as the majority recognizes (p 76), section 5 of the Emergency Tenant Protection Act contains a long list of housing accommodations that remain beyond the reach of subdivision b.

      . The statement in Minton v Domb (63 AD2d 36, 39), quoted by the majority, is clearly, as it relates to class B dwellings, obiter, since Minton involved not a class B dwelling but a co-operative apartment. As such, and since it is contrary to both Axelrod and Zeitlin, the dictum should not be accorded the controlling weight the majority gives it.