author: Chief Judge Breitel.

text:
    Arthur W. Braiman, Appellant, v Sharon Braiman, Respondent.
    Argued May 1, 1978;
    decided June 8, 1978

      POINTS OF COUNSEL

      Norman Bard, Anthony M. Barraco and Sandra Krevitsky for appellant.
    I. In the 23 months that have elapsed since the custody hearing, the children have resided with their father; the mother has sold the children’s former residence and her present whereabouts are currently unknown; and she is presently undergoing psychiatric therapy. These are sufficient changes of circumstances to warrant a new hearing to ascertain the present status of the parties and to determine what is in the best interests of the children under these changed circumstances. (Matter of Bennett v Jeffreys, 40 NY2d 543; People ex rel. Cusano v Leone, 43 NY2d 665; Matter of Gomez v Lozado, 40 NY2d 839; Matter of Darlene T., 28 NY2d 391;
      People ex rel. Wessell v New York Foundling Hosp., 34 AD2d 947, 36 AD2d 936; Sweeney v Sweeney, 39 AD2d 561; Pino v Pino, 57 AD2d 919; Fleishman v Walters, 40 AD2d 622; Matter of Robertson v Robertson, 54 AD2d 1081.) II. Special Term’s determination, made after hearing eight days of hopelessly conflicting testimony, is entitled to great weight and should be reinstated. (Matter of Ray A. M., 37 NY2d 619; Maule v Kaufman, 33 NY2d 58; Schine v Schine, 31 NY2d 113; Boyd v Boyd, 252 NY 422; Matter of Irene O., 38 NY2d 776; Matter of Ebert v Ebert, 38 NY2d 700; Ingalls v Ingalls, 58 AD2d 1039; People ex rel. Therese W. v Harold J. D., 53 AD2d 620; Matter of Harrison v Harrison, 54 AD2d 906.)

      Joan Goldberg for respondent.
    I. The change of custody at Special Term was contrary to the facts and to the law and the court below correctly reversed that decision. (Dintruff v McGreevy, 42 AD2d 809, 34 NY2d 887; Matter of Wout v Wout, 32 AD2d 709; Matter of Rodolfo "CC” v Susan "CC”, 37 AD2d 657; Mantell v Mantell, 45 AD2d 918; People ex rel. Hinckley v Hinckley, 31 AD2d 740; Nierenberg v Nierenberg, 43 AD2d 717; Matter of Metz v Morley, 29 AD2d 462; Matter of Lang v Lang, 9 AD2d 401, 7 NY2d 885; Matter of Kevin M. JJ v Alice A. JJ, 50 AD2d 959; Aberbach v Aberbach, 33 NY2d 592.) II. The decision of the court below ordering split custody should be reversed. (Perotti v Perotti, 78 Misc 2d 131; Woicik v Woicik, 66 Misc 2d 357; Ross v Ross, 4 Misc 2d 399.) III. Petitioner-appellant’s argument that a new hearing is now required is totally devoid of merit. (Matter of Darlene T., 28 NY2d 391; People ex rel. Cusano v Leone, 43 NY2d 665; People ex rel. Wessell v New York Foundling Hosp., 36 AD2d 936; Matter of Bennett v Jeffreys, 40 NY2d 543; Sweeney v Sweeney, 39 AD2d 561; Pino v Pino, 57 AD2d 919.) IV. The decision at Special Term is not entitled to any weight at all. (Bunim v Bunim, 298 NY 391; Matter of Ray A. M., 37 NY2d 619.) V. Counsel fees should be awarded for services rendered at Special Term in the court below and in the Court of Appeals. (Sloan v Sloan, 286 App Div 1102; Schulsinger v Schulsinger, 9 AD2d 909; Parker v Parker, 269 App Div 717; Miraldi v Miraldi, 37 AD2d 842; Anonymous v Anonymous, 47 AD2d 613; Carlo v Carlo, 30 AD2d 530; Martin v Martin, 28 AD2d 897.)
   OPINION OF THE COURT

Chief Judge Breitel.

In a proceeding, described as one to modify a judgment of divorce obtained by the husband, petitioner father seeks custody of his two sons, now aged six and seven-and-a-half. Until this proceeding, respondent mother had custody under a separation agreement which survived a judgment of divorce. Special Term, Supreme Court, awarded custody to the father, but a unanimous Appellate Division reversed, and awarded custody to the parents jointly. The father appeals.

At issue is whether the custody of children of tender years may be entrusted, jointly, to parents persistently and severely embattled.

The order of the Appellate Division, insofar as appealed from, should be reversed, and a new hearing held with utmost expedition. Entrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic and embattled. On the two-year-old hearing record before this court, plagued as it is with hopelessly conflicting testimony on vital facts and issues, it would be improvident to choose between the contradictory findings of the courts below. Consequently a new hearing is required.

Petitioner father, a successful lawyer, married respondent in 1967. The eldest of their three children, a daughter, was born to the mother before she met petitioner, but was later adopted by him. Although he initially sought custody of his adopted daughter, the father did not appeal from Special Term’s award of her custody to the mother. Hence, only custody of the parties’ two young sons remains contested.

The preliminary facts are not disputed. Upon the marital breakdown in late 1974, custody of the three children was, under a separation agreement, given to the mother. That agreement survived a judgment of divorce entered in favor of the father in January, 1975. It was not until April, 1976, when the father, who had since remarried, learned that his former wife was contemplating leaving the jurisdiction, that this proceeding for change of custody based on the mother’s alleged unfitness was begun. Pending a hearing at Special Term, the sons were temporarily placed with their father.

The picture that developed is a mass of hopelessly conflicting unpleasant cross-accusations. Petitioner views himself as a devoted and responsible father. In the former wife’s eyes, however, he is a gambler, an unethical person, and an inattentive and physically abusive father. The mother, who remarried shortly after this proceeding was brought, describes herself as a homebody. In contrast, the father, buttressed by witnesses, characterizes her as a promiscuous barfly who, while entertaining a series of paramours in the children’s home, neglected the children.

An extensive investigation by the County Department of Probation was inconclusive. Noting the number of vital contradictions, the probation officer made no recommendation for custody of the sons. She concluded only that both parents seemed to love and be genuinely concerned with the children, and that, due to the mother’s contemplated relocation, the father would probably supply a more stable environment.

The eight-day hearing before Special Term, which included testimony of physicians, psychiatrists, teachers, and neighbors, was similarly fraught with contradictions. The testimony of the medical experts provides but one example among many. The father’s experts testified that in April, 1976, when change of custody was first sought, the then four year old was badly bruised and the then five year old was suffering from a nervous skin disorder. One physician even filed a report of child abuse. The boys’ pediatrician, on the other hand, stated that he had never seen signs of child abuse and that the five year old’s rash could not have been caused by anxiety. The authorities, moreover, ultimately determined that the child abuse report was unfounded.

There is more. The father’s alleged physical abuse of the children, his asserted delinquency in support payments, the mother’s purported neglect of the home, and her alleged promiscuous consorting with intermittent paramours are but four of numerous areas in which the testimony is flatly contradicted.

Concluding that the sons fared poorly with their mother, Special Term, in an elaborated opinion, awarded their custody to the father. The Appellate Division, in an even more elaborate writing, reversed, expressly crediting the testimony in favor of the mother and citing the rule that modification of a custody agreement reached by the parties requires a change in circumstances, especially with respect to fitness (see Matter of Ebert v Ebert, 38 NY2d 700, 703). Custody was awarded to the parents jointly, the sons to spend weekdays with the mother and weekends with the father.

To date, the order of the Appellate Division having been stayed, the sons remain with the father. Despite court order to the contrary, he has not permitted the mother visitation. For reasons unrevealed by the record, the whereabouts of the mother are now undisclosed.

Under section 240 of the Domestic Relations Law, neither parent has a "prima facie right” to custody. Instead, the court is to "give such direction * * * as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child”. It is from this language that the authority to entrust custody of a child to both parents "jointly” has been inferred (see, e.g., Dodd v Dodd, 93 Misc 2d 641, 644-645; Perotti v Perotti, 78 Misc 2d 131, 132).

"Joint”, or, as it is sometimes called "divided”, custody reposes in both parents a shared responsibility for and control of a child’s upbringing (see Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 Cal L Rev 978,. 1009-1010; compare 1 Lindey, Separation Agreements and Ante-Nuptial Contracts [rev ed], pp 14-60 to 14-61; see, generally, "Split”, "Divided”, or "Alternate” Custody of Children, Ann., 92 ALR2d 695). It may or may not include an arrangement for alternating physical custody (compare Schack v Schack, NYLJ, Aug 21, 1974, p 15, col 8, p 17, col 1, with Perotti v Perotti, 78 Misc 2d 131, 134, supra).

On the wisdom of joint custody the authorities are divided (see Dodd v Dodd, 93 Misc 2d 641, 645-647, supra, for a collection of authorities and an analysis of competing concerns; Bodenheimer, pp 1009-1010). Of course, other considerations notwithstanding, children are entitled to the love, companionship, and concern of both parents. So, too, a joint award affords the otherwise noncustodial parent psychological support which can be translated into a healthy environment for the child.

But, that there is no perfect solution to the divided family does not mean that the court should not recognize the division in fact of the family. Children need a home base. Particularly where alternating physical custody is directed, such custody could, and would generally, further the insecurity and resultant pain frequently experienced by the young victims of shattered families (see Foster & Freed, Law and the Family— New York, § 29:6A [1978 Supp]).

It is understandable, therefore, that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion (see, e.g., Dodd v Dodd, 93 Misc 2d 641, 646-647, supra; Bodenheimer, pp 1010-1011). As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.

More than four years since their separation, the parents are evidently still unable to manage their common problems with their children, let alone trust each other. Instead, they continue to find fault and accuse. They have failed to work out between themselves even a limited visitation with the children. To expect them to exercise the responsibility entailed in sharing their children’s physical custody at this time seems beyond rational hope. It would, moreover, take more than reasonable self-restraint to shield the children, as they go from house to house, from the ill feelings, hatred, and disrespect each parent harbors towards the other.

That the mother’s whereabouts are undisclosed, and that she is admittedly desirous of moving out of the jurisdiction, suggests still further complications. The physical custody arrangement ordered by the Appellate Division contemplates reasonable geographical proximity. Under the instant .circumstances, alternating physical custody is, even as a matter of logistics alone, unrealistic.

That the joint custody may not stand, however, does not resolve the issue. This court, even if it were possible on the hopelessly conflicted record, does not make new findings of fact. Instead, the court reviews the record and chooses only between the findings of the courts below. (See CPLR 5501, subd [b]; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5501.16.) The conflicts and contradictions in this record, however, are so severe and so go to the heart of the matter that it is impossible to resolve them without assessments of credibility. Either or both of the parents with their retinues of contradictory lay and expert witnesses have presented such extremes of proof that further inquiry in depth is required to resolve the issues. While litigation rarely provides issues of fact free from serious contradiction, the state of this particular record makes resolution, at this stage, hopeless.

An added difficulty is that two years have elapsed since the hearing at Special Term. During that period, the boys have lived with their father; they have been prevented from seeing their mother; and the mother has evidently found it necessary to conceal her whereabouts.

However imperative it otherwise would be for this court to end the proceeding, in light of all that has occurred and the critical inconsistencies in the record, a new but expedited hearing is required. Both Special Term and the Appellate Division in deciding and writing upon this case detailed their reasons. Read together the opinions dramatically reflect the sharp contradictions between the proof presented by the parties. Read separately, each supports the conclusion reached because each emphasizes the testimony of the separate retinues of witnesses. On appellate review, the present record is incapable of sustaining a plausible resolution.

Of course, whatever the ultimate disposition, it must be, as it has always been, in the best interest of the children (see, e.g., Domestic Relations Law, § 240; Finlay v Finlay, 240 NY 429, 433-434 [Cardozo, J.]). Yet, at this point on this record, it is impossible to discern where those interests lie. Even the undoubtedly objective probation officer could make no recommendation for the sons. The trial court, therefore, may wish to consider appointing a qualified guardian ad litem for the children, who would be charged with the responsibility of close investigation and exploration of the truth on the issues and perhaps even of recommending by way of report alternative resolutions for the court to consider (see CPLR 1202; cf. Barry E. v Ingraham, 43 NY2d 87, 95).

There are no painless solutions. In the rare case, joint custody may approximate the former family relationships more closely than other custodial arrangements. It may not, however, be indiscriminately substituted for an award of sole custody to one parent. Divorce dissolves the family as well as the marriage, a reality that may not be ignored. In this case the gross conflict between the parents is so embittered and so involved with emotion and litigation that between them joint custody is perhaps a Solomonic approach, that is, one to be threatened but never carried out. At least, that is what the present record shows. A new record may offer a better, if still imperfect, solution.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, without costs, and a new hearing ordered. Pending such hearing the custody of the children should remain as provided by Special Term of Supreme Court in its order of July 6, 1976.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order, insofar as appealed from, reversed, etc.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    Elisabeth L. Moore et al., Individually and as Trustees of the State University of New York, et al., Appellants, and United University Professions, Inc., Intervenor-Plaintiff, v Board of Regents of the University of the State of New York et al., Respondents.
    Argued May 1, 1978;
    decided June 13, 1978

      POINTS OF COUNSEL

      Walter J. Relihan, Jr., for the State University of New York, appellant.
    I. The power to grant, suspend or revoke a license to carry on an otherwise lawful activity must be conferred by law. (Pierce v Society of Sisters, 268 US 510; Meyer v Nebraska, 262 US 390; Packer Coll. Inst. v University of State of N. Y., 298 NY 184; Matter of Barton Trucking Corp. v O’Connell, 7 AD2d 36, 7 NY2d 299; Matter of Small v Moss, 279 NY 288; Matter of Seignious v Rice, 273 NY 44; Matter of Elite Dairy Prods. v Ten Eyck, 271 NY 488; Matter of Fink v Cole, 302 NY 216; Matter of Savage v Commissioner of Licenses of City of N. Y., 3 AD2d 717.) II. The historical powers of the Regents did not include a power to license individual college and university programs. III. The present statutory powers of the Regents do not include a power to license or terminate specific academic programs. (HVAC & Sprinkler Contrs. Assn. v State Univ. Constr. Fund, 80 Misc 2d 1047; Matter of Levine v Whalen, 39 NY2d 510; Matter of Broidrick v Lindsay, 39 NY2d 641; Rapp v Carey, 88 Misc 2d 428, 58 AD2d 918; Matter of Fullilove v Carey, 91 Misc 2d 531; Matter of Picone v Commissioner of Licenses, 241 NY 157; Acorn Employment Serv. v Moss, 292 NY 147; Institute of Metropolis v University of State of N. Y., 159 Misc 529, 249 App Div 33, 274 NY 504.) IV. The Board of Trustees, not the Regents, have the authority to terminate State University academic programs. V. The doctoral programs violate no provision of any regulation ever promulgated by the Regents or the commissioner. (Matter of Irwin v Board of Regents, 27 NY2d 292; People v Cull, 10 NY2d 123; People v Cudak, 78 Misc 2d 893; Maloney v Union Free School Dist. No. 7, 41 AD2d 937; Matter of Kirschner v Berger, 51 AD2d 549, 42 NY2d 970; Matter of Blue v Whalen, 57 AD2d 240; Matter of Bell v Board of Regents, 295 NY 101; People v Dobbs Ferry Med. Pavillion, 40 AD2d 324, 33 NY2d 584; Matter of Levine v Whalen, 39 NY2d 510.)

      Robert D. Stone and Donald O. Meserve for respondents.
    I. Doctoral programs of SUNY must be registered by the State Education Department. (Institute of Metropolis v University of State of N. Y., 159 Misc 529, 249 App Div 33; Matter of Carter v Allen, 25 NY2d 7; Matter of Barie v Lavine, 40 NY2d 569; Horacek-Hayden, Inc. v County of Monroe, 65 Misc 2d 196; Eden v Board of Trustees, 49 AD2d 277; State Univ. of N. Y. v Syracuse Univ., 285 App Div 59.) II. The determination to deny the reregistration of the doctoral programs in history and English at SUNY at Albany was properly sustained. (Calder v Teachers’ Retirement Bd., 4 Misc 2d 166; Riesner v Young, 198 Misc 624.) III. The procedures and standards used by defendants in the evaluation of the programs in question were in all respects lawful. (Matter of Sheffield Farms Co. v Ten Eyck, 252 App Div 825; Matter of Bell v Board of Regents, 295 NY 101; Matter of Wassermann v Board of Regents, 11 NY2d 173; Matter of Gold v Lomenzo, 29 NY2d 468; Matter of Schuyler v State Univ., 31 AD2d 273; Gaslight Club v Catherwood, 30 AD2d 904; People v Fogerty, 18 NY2d 664; Rockland Inst., Div. of Amistad Vocational Schools v Association of Independent Colls., 412 F Supp 1015; Parsons Coll. v North Cent. Assn. of Colls. & Secondary Schools, 271 F Supp 65; Jeter v Ellenville Cent. School Dist., 41 NY2d 283.)

      Thomas Laverne for Commission on Independent Colleges and Universities, amicus curiae.

    I. There is no issue of fact in this case. II. There is no constitutional question. (Murtagh v Nyquist, 78 Misc 2d 876; Hodgkins v Central School Dist. No. 1 of Towns of Conklin, Binghamton, Kirkwood & Vestal, 78 Misc 2d 91; Baer v Nyquist, 40 AD2d 925, 34 NY2d 291; Buhl v University of State of N. Y, 268 App Div 530, 326 US 742; Etter v Littwitz, 49 Misc 2d 934, 28 AD2d 825; Jokinen v Allen, 15 Misc 2d 124; Institute of Metropolis v University of State of N. Y., 159 Misc 529, 249 App Div 33, 274 NY 504.) III. SUNY is not exempt from the Regents’ power to control quality of education through the registration process. IV. Powers exercised by the Regents and commissioner are legal. (Institute of Metropolis v University of State of N. Y., 159 Misc 529, 249 App Div 33, 274 NY 504.) V. Legislated public policy supports the Regents’ powers over quality education. VI. The principle of single overreaching authority over higher education must be maintained. (Rockland Inst., Div. of Amistad Vocational Schools v Association of Independent Colls. &

      Schools, 412 F Supp 1015; Parsons Coll. v North Cent. Assn. of Colls. & Secondary Schools, 271 F Supp 65.)
   OPINION OF THE COURT

Jasen, J.

Presented for our review on this appeal is the issue whether the Board of Regents, through the Commissioner of Education, has the power to deny registration of doctoral degree programs offered by the State University of New York on the ground that they do not satisfy academic standards prescribed by the commissioner.

Appellants, the Chancellor and Trustees of the State University of New York and certain professors and doctoral students in the History and English Departments of the State University of New York at Albany, commenced this action seeking a declaration that the Trustees of the State University constitute the body charged with the operation of university programs, courses and curricula, thus invalidating the directive of the commissioner denying registration of doctoral programs in history and English, as made in excess of his powers. Special Term granted summary judgment to respondents, the Board of Regents and the Commissioner of Education, holding that respondents do possess the power to review academic programs offered by the State University to determine whether such programs should be registered. Insofar as Special Term viewed appellants’ action as an article 78 proceeding to review the determination of the commissioner denying registration of appellants’ programs, the court concluded that, as to the history program, judicial review was barred by the Statute of Limitations. (CPLR 217.) Although finding appellants’ proceeding timely as to the English program, Special Term nonetheless concluded that there existed a rational basis for the commissioner’s determination. On appeal, the Appellate Division unanimously affirmed. Before this court, appellants do not raise the rationality of the commissioner’s determination, but, rather, limit their challenge to the power of respondents to require registration of programs offered by the State University.

We hold that the Education Law does empower the Board of Regents, acting through the Commissioner of Education, to require registration of doctoral degree programs offered by the State University and to deny registration to those programs it determines to be academically deficient.

To place the current dispute between the Regents and the State University in proper perspective, a brief review of the historical evolution of these bodies is appropriate. When first created by the Legislature, the Regents of the University of the State of New York succeeded to the powers of the governors of Kings College, which was then renamed Columbia College. (L 1784, ch 51.) This grant of power endowed the Regents with full authority to govern and manage any college established in New York, all such institutions to be deemed part of the University of New York. (Id.) Subsequently, however, the Legislature altered the role of the Regents by granting to a board of trustees of Columbia College autonomous control over the operation of the college. (L 1787, ch 82.) Concomitantly, this act endowed all colleges established in New York with the same rights and privileges vested in the trustees of Columbia College. (Id.) As a result, the Regents underwent a metamorphosis, the effect of which was to clothe it with a broad policy-making function over higher education in New York, leaving the day-to-day operation of the colleges to their own governing bodies. (See Carmichael, New York Establishes a State University 2 [1955].)

With the advent of the State University of New York (L 1948, ch 695 [Education Law, § 352]), however, the Regents became enmeshed in the day-to-day operation of this semi-independent educational corporation. To alter this governing structure, the Legislature subsequently vested in the Board of Trustees of the State University the same power to administer the day-to-day operations of the State University as trustees of private institutions of higher education had been granted. (L 1961, ch 388.) Viewed in this historical perspective, the issue in the instant case can be framed as whether the Regents, as a policy-making body, possesses the power to require registration of doctoral degree programs or whether control over the offering of such programs lies within the ambit of the Trustees of the State University.

At the outset, we note that a critical function of the Regents is its preparation, once every four years, of a master plan "for the development and expansion of higher education” in New York. (Education Law, § 237, subd 1.) This plan includes public as well as private institutions. The 1972 master plan, prepared by the Regents, and approved by the Governor, recognized the need for strengthening graduate programs and recommended that "institutions should withdraw those programs which, upon evaluation, prove to be (a) inactive or underenrolled, (b) of marginal quality and which cannot be strengthened by sharing resources with other institutions, and (c) below the minimum standards set by Commissioner’s Regulations.” Separate and apart from the policy recommendations concerning graduate programs contained in the 1972 master plan, section 210 of the Education Law specifically gives the Regents the power to "register domestic and foreign institutions in terms of New York standards”.

It is true that read literally section 210 speaks only of the registration of domestic and foreign institutions and is silent as to the registration of particular programs offered by such institutions. However, we do not believe the power of registration granted to the Regents need be construed so narrowly. Section 210 must not be read in isolation, but with an awareness of the full range of powers granted to the Regents. Particularly significant in this regard is the power of visitation provided in section 215 of the Education Law. This section authorizes the Regents or the Commissioner of Education to "visit, examine into and inspect, any institution in the university” and to "require, as often as desired, duly verified reports therefrom giving such information and in such form as the regents or the commissioner of education shall prescribe.” In the event that an institution violates "any law or any rule of the university”, the Regents is empowered to "suspend the charter or any of the rights and privileges of such institution.”

We see no reason why sections 210 and 215 should not be read together as the statutory authority for the power of the Regents to require registration of doctoral degree programs offered by institutions of higher education in New York. If the Regents, in the first instance, has the power to register institutions "in terms of New York standards” (Education Law, § 210), and the power to suspend the rights and privileges of an institution violating "any rule or law of the university” (Education Law, § 215), it would not appear unreasonable to conclude that the Regents also possesses the power to deny the registration of doctoral degree programs which it believes do not conform with standards set for institutions of higher education. Of course, the standards for registration set by the Regents must not be arbitrary or capricious, either in the abstract or in application to specific programs. To hold that the Regents is empowered to require registration of doctoral degree programs is not to insulate such administrative action from judicial scrutiny.

Of critical importance to the effectuation of the Regents’ powers is the legislative function with which it has been endowed: that is, to determine the educational policies of the State and to "establish rules for carrying into effect the laws and policies of the state, relating to education, and the functions, powers, duties and trusts conferred or charged upon the university and the education department.” (Education Law, § 207.) Implementing this power, the Regents, based upon the policy recommendations made in the 1972 master plan, established a rule providing the Commissioner of Education with authority to promulgate regulations governing the registration of courses of study in colleges, as well as in professional, technical and other schools. (8 NYCRR 13.1 [a].) Acting upon this mandate, the commissioner promulgated a regulation requiring the registration of "[e]very curriculum creditable toward a degree offered by institutions of higher education” (8 NYCRR 52.1 [a] [l]).

To effectuate this registration requirement, the commissioner also promulgated a regulation setting forth standards to be employed in the determination whether to grant or deny the registration of degree programs offered by all institutions of higher education, both private and public. (8 NYCRR 52.2.) This regulation provided, inter alia, that "[e]ach member of the academic staff shall have demonstrated by his training, earned degrees, scholarship, experience, and by classroom performance or other evidence of teaching potential, his competence to offer the courses and discharge the other academic responsibilities which are assigned to him.” (8 NYCRR 52.2 [c].)

In reviewing the qualifications of the faculty of the English and History Departments at the State University of New York at Albany to offer doctoral programs, the commissioner, based upon reports submitted by the site visitation team and program evaluation committee, as well as upon the recommendation of the doctoral council, determined that the faculty in these departments were not sufficiently productive or prominent to support a doctoral program and, therefore, declined to register the programs. Indicia of faculty productivity or prominence relied upon by the commissioner focused upon the extent of research and publications credited to members of the faculty of the doctoral programs evaluated. Concerning the history program, the report of the visitation team concluded that the department was not widely known and that "[w]ith one outstanding exception * * * the members of the department, individually and collectively [did] not represent the kind of prominent scholars to whom one refers undergraduates in all parts of the country for graduate training.” Similarly, the report of the visitation team evaluating the English program concluded "that in general the members of the department are not recognized nationally by appointment to national honorary bodies, MLA committees, or editorial boards.”

In concluding that the Commissioner of Education did not act in excess of his powers in denying registration of these programs based upon this criteria, we reject, at the outset, appellant’s contention that the power of the Regents is limited pursuant to chapter 388 of the Laws of 1961 to supervision and approval of the State University Trustees’ master plan. The purpose of that legislation was not to exempt the State University from the authority of the Regents. On the contrary, the Legislature sought merely to place the State University on the same footing as private institutions of higher education in New York: that is to grant the trustees of the State University the same power to govern the day-to-day operations of the State University as trustees of private institutions possessed. It was intended to have, and in fact had, no effect on the broad policy-making function exercised by the Regents over both private and public institutions of higher education in New York.

In exercising this function, the Regents recommended in its 1972 master plan the withdrawal of academically deficient programs. Moreover, as previously discussed, sections 210 and 215 of the Education Law must be interpreted to empower the Regents to register degree programs as well as the institutions themselves in terms of New York standards. These standards, promulgated as regulations by the Commissioner of Education (8 NYCRR 52.2), provide the necessary authority for the commissioner’s determination to deny the registration of the English and history doctoral programs offered by the State University of New York at Albany.

We also reject appellants’ contention that standards for the registration of educational programs were never promulgated. This argument is premised upon the conclusion that the standards employed in the determination of the commissioner to deny registration were those contained in position paper 19, a document published by the Regents recommending the evaluation of all doctoral programs in the State to ensure that only programs of high academic caliber be continued. We would agree that the recommendations contained in position paper 19 did not, upon publication, acquire the status of regulations promulgated by the Commissioner of Education. But that is not to say that the recommendations made in position paper 19 could not have been considered by the commissioner in his determination to deny registration in the present case, together with the essential standards contained in the regulation which he had promulgated. (See 8 NYCRR 52.2.)

As a word of caution we add that the power of the Regents is not unbridled. Its function is one of an overseer: a body possessed of broad policy-making attributes. In its broadest sense, the purpose of the Regents is "to encourage and promote education” (Education Law, § 201), a purpose which must be realized only through the powers granted to the Regents by the Legislature. (NY Const, art XI, § 2.) In the absence of a specific grant of power by the Legislature (see, e.g., Education Law, § 210 [to register domestic and foreign institutions]; § 215 [to examine, inspect and visit institutions and to require their submission of reports]), the Regents cannot transform section 207 of the Education Law, the fountainhead of the Regents’ rule-making power, into an all-encompassing power permitting the Regents’ intervention in the day-to-day operations of the institutions of higher education in New York. Were this provision interpreted otherwise, it would run afoul of the constitutional prohibition (NY Const, art III, § 1), against the Legislature’s delegation of lawmaking power to other bodies. (See Matter of Levine v Whalen, 39 NY2d 510, 515; Matter of Mooney v Cohen, 272 NY 33, 37.) In view, however, of the specific powers granted by the Legislature to the Regents previously discussed, we believe that, in the present case, section 207 operates as a means for the effectuation of independent powers, rather than as their source.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Breitel and Judges Gabrielli, Wachtler, Fuchsberg and Cooke concur; Judge Jones taking no part. Order affirmed.

      . Pursuant to this regulation, approximately 13,000 degree and certificate programs, over 2,000 of which were offered by the State University, have been registered by the Department of Education.

      . In addition to reviewing the report of the evaluation committee, the doctoral council, a body composed of 14 leaders of graduate education in New York, two each from the State University and the City University of New York and 10 from private institutions, conducted a meeting attended by representatives of the State University and of the State University at Albany at which representatives of the latter submitted statements in support of the history and English doctoral programs being reviewed.


author: Cooke, J.

text:
    John F. Ratka, as Administrator of the Estate of Edward H. Ratka, Deceased, Appellant, v St. Francis Hospital et al., Defendants, and Albert I. White et al., Respondents.
    Argued May 1, 1978;
    decided June 13, 1978

      POINTS OF COUNSEL

      Robert J. Lackaye for appellant.
    I. The beneficiaries of the decedent possess a common-law cause of action for his wrongful death and the New York wrongful death statute is remedial rather than one which creates a right of action. (Moragne v States Mar. Lines, 398 US 375; The Harrisburg, 119 US 199; Panama R. R. Co. v Rock, 266 US 209; Gaudette v Webb, 362 Mass 60; Bickford v Furber, 271 Mass 94; Sharrow v Inland Lines, 214 NY 101; Neal v Butler Aviation Int., 422 F Supp 850; Millington v Southeastern Elevator Co., 22 NY2d 498.) II. Plaintiff has a valid statutory cause of action for wrongful death pursuant to EPTL 5-4.1 which is not barred by the Statute of Limitations. (Hughes v Hinson’s Garage, 9 AD2d 1014; Matter of Meng, 227 NY 264; Rice v Postal Telegraph-Cable Co., 174 App Div 39; Mossip v Clement & Co., 256 App Div 469; McDonough v Cestare, 3 AD2d 201.) III. The public policy of the State requires adherence to the trial court’s decision. (Lebrecht v Orefice, 199 Misc 1025; Maguire v Yellow Taxicab Corp., 253 App Div 249; Caffaro v Trayna, 35 NY2d 245.) IV. It is the express intent of the Legislature to protect the rights of infants and those rights should not be denied on mere technical grounds. (Burnett v New York Cent. R. R. Co.,
      380 US 424; Philips v Apuzzo, 241 App Div 762, 266 NY 579; Stutz v Guardian Cab Corp., 273 App Div 4; Pulsifer v Olcott, 63 Misc 2d 524; Motyka v City of Amsterdam, 15 NY2d 134.)

      Lawrence T. D’Aloise Jr., and Gerald Nolan for Albert I. White and another, respondents.
    I. There is no common-law death cause of action in New York. (Whitford v Panama R. R. Co., 23 NY 465; Baldwin v Powell, 294 NY 130; Kilberg v Northeast Airlines, 9 NY2d 34; Caffaro v Trayna, 35 NY2d 245; Matter of Meng, 227 NY 264; Moragne v States Mar. Lines, 398 US 375; Neal v Butler Aviation Int., 422 F Supp 850; Woods v Lancet, 303 NY 349.) II. Even if there exists a common-law cause of action for wrongful death in New York, appellant’s claim thereunder would nonetheless be barred by the two-year Statute of Limitations contained in EPTL 5-4.1. (Mossip v Clement & Co., 256 App Div 469, 283 NY 554; Lynn v City of New York, 18 AD2d 1076, 13 NY2d 955; Matter of Meng, 227 NY 264; Duhan v Milanowski, 75 Misc 2d 1078; Turner v Atlantic Coast line R. R. Co., 159 F Supp 590.) III. Appellant’s statutory cause of action for wrongful death is barred by the two-year limitation contained in EPTL 5-4.1. IV. The public policy of the State requires dismissal of the claim herein as time-barred. (Caffaro v Trayna, 35 NY2d 245; Vastola v Maer, 48 AD2d 561.)
   OPINION OF THE COURT

Cooke, J.

Based on express legislative enactments and a considerable body of decisional law which has developed through the years, as well as sound public policy considerations, there is no choice but to apply the two-year Statute of Limitations incorporated into the statute creating wrongful death actions by the Legislature.

On May 6, 1972, Edward H. Ratka, after having undergone surgery, died at St. Francis Hospital in Poughkeepsie. At the time of death his wife was 46 years of age and his eldest child, a daughter, was 22 years old. Also surviving were six infants, one of whom, Edward H. Ratka, Jr., reached majority within six months of decedent’s passing. The problem in this case arose because more than two years passed with neither the wife nor the two older children seeking appointment as representative of decedent’s estate for purposes of instituting a wrongful death action.

It was not until almost three years after decedent’s death, specifically on May 2, 1975, when letters of administration were granted to the plaintiff John F. Ratka. On the same day, the summons was delivered for service upon defendants Gordon and White, both physicians, by delivery to the Sheriff and, thereafter and within two weeks, each of these defendants was served (see CPLR 203, subd [b], par 5).

The complaint seeks, inter alia, recovery for conscious pain and suffering, as well as for wrongful death, based on allegations of malpractice. In controversy on this appeal is the affirmative defense of the Statute of Limitations interposed by these defendants.

Supreme Court, relying on Caffaro v Trayna (35 NY2d 245), granted plaintiff’s motion to strike this affirmative defense. Upon appeal, the Appellate Division reversed, granting defendants’ cross motion to dismiss the cause of action for wrongful death. The court reasoned that the two-year Statute of Limitations for such action had not tolled on account of the infancy of the surviving child, John, who was appointed administrator when he reached his majority, because there existed, at the time of decedent’s death, next of kin who were under no disability to receive letters of administration. We agree with this result and, accordingly, affirm.

Before considering the merits, because the principle of finality is involved, we comment upon our jurisdiction. A reversal of an order of the Supreme Court, as occurred here, is appealable as of right where the Appellate Division’s order "finally determines” the action (see NY Const, art VI, § 3, subd b, par [1]; CPLR 5601, subd [a]). Although there are instances where a nonfinal order can be appealed to this court, those circumstances are not involved here. Since the causes of action for conscious pain and suffering have not been disposed of by the Appellate Division decision, plaintiff’s lawsuit against defendants continues and, for purposes of determining appealability to this court, we must determine the finality of the order which dismissed the claim for wrongful death.

Where two or more causes of action are asserted in one complaint, an order of the Appellate Division which dismisses one of them may be considered to have impliedly severed it from the pending undetermined litigation involving the remaining claims. Hence, the order of the Appellate Division may be final under the doctrine of "implied severance” (see Cohen and Karger, Powers of the New York Court of Appeals, § 21, pp 84-93). However, the rule does not go so far as to hold that every order dismissing a cause of action is final for purposes of our jurisdiction.

While it may be noted that the trend has been away from earlier decisions limiting the availability of the implied severance theory, the court has recognized that the doctrine should not apply in instances characterized as "some exceptional situations involving an extremely close interrelationship between the respective claims” (Sirlin Plumbing Co. v Maple Hill Homes, 20 NY2d 401, 403; see, e.g., Behren v Papworth, 30 NY2d 532). Regardless of whether these situations are rare or common, the court has continued to hold the doctrine of implied severance to be inapplicable in cases, for example, where "the finally determined cause of action is not discrete from the transactions giving rise to counterclaims which are not finally determined” (Lizza Ind. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695). Thus, in cases involving an interrelationship or overlap of claims, the separateness of the dismissed claim must be determined.

Applying these principles to the matter at hand, for purposes of finality, we find the order appealed from to involve a discrete claim. This is not a case which comprises "in essence, nothing more than a single cause of action” (compare Behren v Papworth, 30 NY2d 532, 534, supra). To the contrary, the causes of action are materially separate and distinct. A personal injury action is for conscious pain and suffering of the decedent prior to his death. This contrasts with a wrongful death action for pecuniary injuries resulting from decedent’s death and certain expenses. The recovery for conscious pain and suffering accrues to the decedent’s estate, whereas the damages for wrongful death are for the benefit of the decedent’s "distributees” who have suffered "pecuniary injury” (see EPTL 5-4.1, 5-4.3, 5-4.4, 11-3.3). The claims are thus predicated on essentially different theories of loss which accrue to different parties. Of course, there is some overlap and the same wrongful conduct is the basis for both claims, but this is not significant in the context of this case. Most notably, here, the issue is not whether there was malpractice resulting in injury and death, which is the underlying question in both claims, but whether plaintiff may overcome a defense of the Statute of Limitations to his claim for wrongful death. Therefore, at least in these circumstances, the order appealed from should be considered final for purposes of our jurisdiction.

On the merits, plaintiff urges the court to establish a common-law cause of action for wrongful death, notwithstanding that our Legislature has expressly authorized such claims for over a century in statutes culminating in the present EPTL 5-4.1 (see L 1847, ch 450), and that the right of action to recover for injuries resulting in death is embodied in our Constitution and may not be abrogated (art I, § 16). As a groundwork for this request, plaintiff relies upon a decision in which the Supreme Court overruled The Harrisburg (119 US 199) and held that "an action does lie under general maritime law for death caused by violation of maritime duties” (Moragne v States Mar. Lines, 398 US 375, 409). In essence, plaintiff implores the court to recognize a common-law cause of action for wrongful death and then to toll this action under CPLR 208 for the benefit of plaintiff and decedént’s other children who were infants at the time of the expiration of the two-year Statute of Limitations in EPTL 5-4.1. However, while we note that at least one jurisdiction has established a common-law cause of action even though its legislative body had permitted such claims by statute (see Gaudette v Webb, 362 Mass 60) and despite the suggestion of other courts that "the New York Courts when directed to Moragne and Gaudette would reach the same conclusion” (Neal v Butler Aviation Int., 422 F Supp 850, 855; see, e.g., Barnette v Butler Aviation Int., 89 Misc 2d 350), we decline plaintiff’s invitation to change the law of this State.

In Moragne v States Mar. Lines, the court stated: "We conclude that the Death on the High Seas Act was not intended to preclude the availability of a remedy for wrongful death under general maritime law in situations not covered by the Act” (398 US 375, 402, supra). Here, we are faced with an entirely different problem; our statute expressly provides for a recovery for wrongful death in this situation and the crucial issue is whether a common-law right of action should be recognized to allow plaintiff to take advantage of a tolling provision for infancy. Hence, the complex questions of maritime law, congressional intent, and lack of an express provision to cover the situation presented, distinguish that case from the picture we are asked to examine.

The law which preceded the decision of Gaudette v Webb (362 Mass 60, supra) may also serve to explain the rationale for that holding. The period of limitation in the Massachusetts wrongful death statutes has been held to be "a limitation upon the right as well as upon the remedy, and the right was lost when * * * [the period of limitation] expired” (Bickford v Furber, 271 Mass 94, 97). The court thus appears to have reasoned that the law of that State has "evolved to the point where it may now be held that the right to recovery for wrongful death is of common law origin” (362 Mass, at p 71) as the most sound method of overcoming cases which held its statute to be a limitation on the right. Hence, the court concluded that its "wrongful death statutes will no longer be regarded as 'creating the right’ to recovery for wrongful death” (id.).

The decisions in New York have followed a different path. Construing a predecessor to the present statute, by contrast this court has reasoned that the period of limitations in our wrongful death statute is "a limitation upon the remedy and not upon the right” (Sharrow v Inland Lines, 214 NY 101, 110). Hence, the period of limitation, to be available as a bar to the commencement of the action, must be pleaded (see Agresta v Federal Steam Nav. Co. of England, 169 App Div 467, 468). Indeed, another tolling provision, as well as other procedures embodied in CPLR article 2, is applicable to the period specified for commencement of a wrongful death action (see Philips v Apuzzo, 266 NY 579; Irons v Michigan-Atlantic Corp., 279 App Div 32; cf. Streeter v Graham & Norton Co., 263 NY 39, 44). Thus, the law of this State has been markedly different from that in Massachusetts.

More recently,. our decision in Caffaro v Trayna (35 NY2d 245, supra) applied another provision of the CPLR to overcome the bar of the Statute of Limitations in a wrongful death action. However, the theory utilized in that case is inapplicable here and there remains the need for timely appointment of a personal representative to commence the action (see, e.g., Goldberg v Camp Mikan-Recro, 42 NY2d 1029). In the instant case, despite the opportunity to do so, the necessary requirements have not been satisfied.

The infancy of the decedent’s children will not suspend the running of the two-year Statute of Limitations for commencement of a wrongful death action (see Mossip v Clement & Co., 256 App Div 469, affd 283 NY 554; Lundberg v Robins Dry Dock & Repair Co., 261 App Div 907; but see Hughes v Hinson Garage, 9 AD2d 1014, 1015 [dicta]). Statutes of Limitation, at times referred to as "statutes of repose” (see Schmidt v Merchants Desp. Transp. Co., 270 NY 287, 302; Jordan v State of New York, 56 Misc 2d 1032, 1035), "represent a legislative judgment that * * * occasional hardship is outweighed by the advantage of barring stale claims” (1 Weinstein-Korn-Miller, NY Civ Prac, par 201.01). They are intended "to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and the evidence has been lost” (Chase Securities Corp. v Donaldson, 325 US 304, 314). Decedent left a five-year-old child and, under one aspect of plaintiff’s theory, the wrongful death action could have been commenced approximately 15 years after the death and, in instances where there are younger distributees, an even longer delay or tolling would be permissible.

In light of the present statutory entitlement in this State, we reject the request to establish a common-law cause of action for wrongful death. The decisions of other jurisdictions are, in our view, based on considerations not present here, and, to the extent that they may suggest a contrary result, we respectfully decline to follow in their steps. Therefore, we conclude that it is neither necessary nor appropriate to change established law as a means of saving this cause of action for wrongful death from the bar of the Statute of Limitations.

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

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed.

       See CPLR 5601 (subd [c]); 5602 (subd [a], par 2); 5602 (subd [b], par 1); 5602 (subd [b], par 2, cl [iii]); see, also, CPLR 5713.


text:
    The People of the State of New York, Respondent, v Toni Smith, Appellant.
    Argued April 25, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      George Goltzer, Martin Erdmann, Judith Levin and Alan L. Peck for appellant.
    I. Defendant Smith’s unavailability ought not deter or preclude the court from deciding a persistent question of overriding public interest. (People v Genet, 59 NY 80; People v Del Rio, 14 NY2d 165; People v Parmaklidis, 38 NY2d 1005; People ex rel. Erhardt v Foster, 299 NY 628; People ex rel. Hamilton v Police Comr., 185 NY 594; People v Parker, 41 NY2d 21; People ex rel. Donohoe v Montanye, 35 NY2d 221; People ex rel. Guggenheim v Mucci, 32 NY2d 307; Matter of Concord Realty Co. v City of New York, 30 NY2d 308.) II. Section 240.37 of the Penal Law, is unconstitutionally vague on its face and as applied to appellant in violation of the Fourteenth Amendment of the United States Constitution and the New York State Constitution. (United States v Harrias, 347 US 612; Lanzetta v New Jersey, 306 US 451; Papachristou v City of Jacksonville, 405 US 156; People v Berck, 32 NY2d 567; Hynes v Mayor of Oradell, 425 US 610; Grayned v City of Rockford, 408 US 104; People v Pagnotta, 25 NY2d 333; Fenster v Leary, 20 NY2d 309; People v Diaz, 4 NY2d 469; United States ex rel. Newsome v Malcolm, 492 F2d 1166, affd sub nom. Lefkowitz v Newsome, 420 US 283.) III. Section 240.37 of the Penal Law is unconstitutionally overbroad, inhibiting the free exercise of rights protected by the First Amendment of the United States Constitution and the New York State Constitution. (Dombrowski v Pfister, 380 US 479; NAACP v Button, 371 US 415; Thornhill v Alabama, 310 US 88; Cramp v Board of Public Instruction, 368 US 278; Gooding v Wilson, 405 US 518; Coates v City of Cincinnati, 402 US 611; Grayned v City of Rockford, 408 US 104; People v De Bour, 40 NY2d 210; Broadrick v Oklahoma, 413 US 601; Lewis v City of New Orleans, 415 US 130.)

      Robert M. Morgenthau, District Attorney (Brian Rosner and Peter L. Zimroth of counsel), for respondent.
    I. Since there is continuing Federal litigation concerning section 240.37 of the Penal Law, this court should hear the appeal despite appellant’s flight. (People v Genet, 59 NY 80.) II. Section 240.37 of the Penal Law, a legislative attempt to prohibit aggressive solicitation by prostitutes, is constitutional. (Screws v United States, 325 US 91; People v Diaz, 4 NY2d 469; People v Berck, 32 NY2d 567; People v Bell, 306 NY 110; People v Johnson, 6 NY2d 549; People v Merolla, 9 NY2d 62; People v Pagnotta, 25 NY2d 333; Papachristou v City of Jacksonville, 405 US 156; Cox v Louisiana, 379 US 559.)

      Louis J. Lefkowitz, Attorney-General (Lillian Z. Cohen and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law and CPLR 1012-b.
    I. The unique circumstances of this case warrant a determination by this court of the constitutionality of section 240.37 of the Penal Law, notwithstanding the present unavailability of the defendant. (Molinaro v New Jersey, 396 US 365; People v Parmaklidis, 38 NY2d 1005; People v Del Rio, 14 NY2d 165; People v Genet, 59 NY 80; United States v Weinstein, 511 F2d 622; People ex rel. Guggenheim v Mucci, 32 NY2d 307; Matter of Concord Realty Co. v City of New York, 30 NY2d 308; People v Parker, 41 NY2d 21.) II. Section 240.37 of the Penal Law is a valid and important exercise of the State’s police power and is constitutional on its face. (Papachristou v City of Jacksonville, 405 US 156; People v Diaz, 4 NY2d 469; People v Berck, 32 NY2d 567; United States ex rel. Newsome v Malcolm, 492 F2d 1166; People v Pagnotta, 25 NY2d 333; People v Willmott, 67 Misc 2d 709; People v White, 16 NY2d 270; McCourt v People, 64 NY 583.)

   OPINION OF THE COURT

Cooke, J.

We weigh here defendant’s constitutional challenge to section 240.37 of the Penal Law (loitering for the purpose of engaging in a prostitution offense), on the asserted ground that the statute vests unfettered discretion in the police in the arrest of violators and, therefore, is void for vagueness. Additionally, it is urged that the statute is overbroad in that it inhibits the free exercise of protected rights. We reject the attack and uphold the legislation.

An ancillary but preliminary question concerns the hearing of this appeal in view of defendant’s unavailability. This criminal proceeding was commenced by the filing of an accusatory instrument on July 12, 1976 alleging that Toni Smith on that day engaged in conduct violative of section 240.37. Thereafter, the New York City Criminal Court (B. Altman, J.) dismissed the complaint and declared the statute unconstitutional (88 Misc 2d 590). In turn, the Appellate Term, First Department, reversed the Criminal Court order and denied the motion to dismiss (89 Misc 2d 754). The case was reinstated in Criminal Court. Since defendant had failed to appear therein, a warrant was issued for her arrest. Although Ms. Smith is not available to obey the mandate of this court, her attorneys urge that the appeal be heard and the People join in requesting retention.

Normally and quite naturally, this court will not entertain the appeal of an absconding defendant-appellant (People v Parmaklidis, 38 NY2d 1005; People v Del Rio, 14 NY2d 165, 169; People v Genet, 59 NY 80, 82), but here a number of jurisprudential considerations militate otherwise. All sides earnestly seek a court review and determination; there are two pending civil actions in the United States District Court involving the constitutionality of the instant statute, in one of which a stay has been issued pending the disposition of this appeal (see Maggu v Carey, 76 Civ 3016 [SDNY]; Carmen v Carey, 78 Civ 438 [SDNY]); defendant’s attack is upon the accusatory instrument, she has not been tried or convicted and in these circumstances a duly authorized attorney may appear for the appellant in absentia (cf. United States v Weinstein, 511 F2d 622, 628-629); and, most importantly, the statute is still being enforced, with numerous arrests presumably occurring daily. The situation here is analogous to those of mootness or standing, where appeals are determined because the issue presented is imbued with substantial public interest, is surrounded with some uncertainity and is likely to surface again (see, e.g., People v Parker, 41 NY2d 21, 25; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556, 559; People ex rel. Donohoe v Montanye, 35 NY2d 221, 224-225; Matter of Concord Realty Co. v City of New York, 30 NY2d 308, 312-313).

The class B misdemeanor of prostitution is proscribed under section 230.00 of the Penal Law which provides: "A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.” Because prostitution normally involves two willing participants and complaints by those implicated are rare indeed, section 230.00 is insufficient to meet public needs in light of the profligate spread of the world’s oldest profession and its attendant evils in our central cities. Accordingly, the Legislature added section 240.37 to the Penal Law in 1976 under findings which recited:

"The legislature hereby finds and declares that loitering for the purpose of prostitution, patronizing or promoting prostitution is disruptive of the public peace in that certain persons engaged in such conduct in public places harass and interfere with the use and enjoyment by other persons of such public places thereby constituting a danger to the public health and safety.
"The legislature further finds that in recent years the incidence of such conduct in public places has increased significantly in that persons aggressively engaging in promoting, patronizing or soliciting for the purposes of prostitution have, by their course of conduct in public places, caused citizens who venture into such public places to be the unwilling victims of repeated harassment, interference and assault upon their individual privacy, as a result of which such public places have become unsafe and the ordinary community and commercial life of certain neighborhoods has been disrupted and has deteriorated” (L 1976, ch 344).

The relevant language of section 240.37 follows: "Any person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of prostitution, or of patronizing a prostitute as those terms are defined in article two hundred thirty of the penal law, shall be guilty of a violation and is guilty of a class B misdemeanor if such person has previously been convicted of a violation of this section or of sections 230.00 or 230.05 of the penal law.”

An analysis of the merits of this appeal commences with a recognition of the fundamental two-part test which the due process clause imposes on a criminal statute claimed to be vague. First, it must be sufficiently definite "to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” (United States v Harriss, 347 US 612, 617). Second, it "must provide explicit standards for those who apply them” so as to avoid "resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application” (Grayned v City of Rockford, 408 US 104, 108-109). Illustrative of the application of the second phase of this inquiry, in striking down a Jacksonville vagrancy ordinance as unconstitutional, the Supreme Court poignantly observed: "Those generally implicated by the imprecise terms of the ordinance — poor people, nonconformists, dissenters, idlers — may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a covenient tool for 'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.’ Thornhill v. Alabama, 310 U. S. 88, 97-98. It results in a regime in which the poor and the unpopular are permitted to 'stand on a public sidewalk . . . only at the whim of any police officer.’ Shuttlesworth v. Birmingham, 382 U. S. 87, 90.” (Papachristou v City of Jacksonville, 405 US 156, 170 [1972].)

Defendant does not declare that the statute fails to furnish adequate notice of the conduct declared to be criminal. Rather, the thrust of her attack lies in her assertion that the "constitutional infirmity * * * lies in the fact that it encourages police to use unfettered discretion in making arrests solely on circumstantial evidence” requiring them to "infer criminality from wholly innocent or ambiguous activity in which free citizens must necessarily engage to lead normal lives.” Thus, the argument continues, since a police officer must speculate as to the purpose of constitutionally protected activity, the statute " 'impermissibly delegates basic policy matters to policemen’ ”, forbidden under Grayned.

The strength of defendant’s assault on section 240.37 is diminished greatly by the presence therein of an element lacking in those enactments struck down and declared void for vagueness (see, e.g., People v Berck, 32 NY2d 567, 569, cert den 414 US 1093 [criminating loitering " 'in or about a place without apparent reason’ * * * under circumstances which 'justify suspicion’ that a person 'may be engaged or about to engage in crime’ ”]; People v Diaz, 4 NY2d 469, 470 [" 'No person shall * * * loiter about any street or street corner in the City of Dunkirk’ ”]). That distinctive characteristic is the delineation of specific conduct, in addition to the loitering, which the arresting officer must observe. Thus, the statute explicitly limits its reach to loitering of a demonstrably harmful sort, i.e., loitering for the purpose of committing a specific offense. The value of these additives is apparent from those decisions of this court which repeatedly have declared valid legislation prohibiting loitering in a specific place or for a specific purpose (see, e.g., People v Pagnotta, 25 NY2d 333, 335 [for purposes of unlawfully using or possessing any narcotic drug]; People v Merolla, 9 NY2d 62, 67 [on the waterfront]; People v Johnson, 6 NY2d 549, 550 [in or about any school building or grounds]; People v Bell, 306 NY 110, 113 [about railroad or subway facilities]).

Analogous to this case and pertinent to our inquiry is People v Pagnotta (25 NY2d 333, supra), where the statute under scrutiny provided that "[a] person who * * * [u]ses, resorts to or loiters about any stairway, staircase, hall, roof, elevator, cellar, courtyard or any passageway of a building for the purpose of unlawfully using or possessing any narcotic drug, [i]s guilty of a misdemeanor” (former Penal Law, § 1533, subd 5). The lifeline, clearly visible and intelligible, which saved that enactment from the fate of those struck down for vagueness was the act’s prohibition of "loitering for the purpose of committing the crime of unlawfully using or possessing narcotic drugs” (id., p 338; emphasis added). Viewed from this perspective, section 240.37, likewise, is not invalid for vagueness because it details the prohibited conduct and limits itself to one crime. As a consequence, the police are precluded from speculating or groping for violations in a Serbonian bog of ambiguous behavior which sounded the death knell for the statutes condemned in Diaz and Berck. The section does not authorize an arrest or conviction based on simple loitering by a known prostitute or anyone else; rather, it requires loitering plus additional objective conduct evincing that the observed activities are for the purpose of prostitution (see People v Pagnotta, 25 NY2d 333, 338, 339, supra).

Defendant contends that in any case where there is not overheard a direct offer of sex for a fee, which in itself would be a crime (see Penal Law, § 230.00), an arrest based on 240.37 would of necessity be predicated upon proof justifying mere suspicion rather than probable cause (see People v Brown, 24 NY2d 421, 424). It might be true, as defendant claims, that in rare instances unless an officer has a basis for his belief of what is actually transpiring, based on items other than his mere observations, there would be no probable cause to make an arrest. There is also a remote possibility that a person involved in innocent conversation, such as a pollster or one seeking directions, might be arrested, but that is not envisioned by the statute and the mere fact that an officer in a particular case did not have probable cause to arrest that defendant would not warrant the invalidation of the statute (see People v Pagnotta, 25 NY2d 333, 339, supra; Roth v United States, 354 US 476, 491-492). Regardless of these possibilities under such circumstances, a conviction is not contemplated since the standard of proof would be so much greater — proof beyond a reasonable doubt of every element of the offense (CPL 70.20) and, where circumstantial evidence is relied on exclusively, the facts must be inconsistent with innocence and exclude to a moral certainty every other reasonable hypothesis (People v Montanez, 41 NY2d 53, 57). Furthermore, based on particulars obvious to and discernible by any trained law enforcement officer, it would be a simple task to differentiate between casual street encounters and a series of acts of solicitation for prostitution, between the canvas of a female political activist and the maneuvers of a Times Square prostitute.

Hypotheticals notwithstanding, the actual observances of the police and their promulgated guidelines advising of the need for probable cause, as evidenced here, lend support to the view that officials in that calling do not regard the statute as granting them an impermissible measure of discretion. At a preliminary hearing in Criminal Court (O’Hare, J.), resulting in defendant being bound over for trial, Officer Hopkins testified that from an unmarked vehicle he observed defendant for about 20 minutes shortly after two in the morning standing in front of 632 Eighth Avenue in New York City, an address at which there had been numerous arrests for prostitution. In fact, the officer himself had made 15 such arrests at that location in the preceding months. During this brief interval defendant left the building line, approached three men who walked past and in each instance touched the man’s arm and said something: the first simply continued walking whereupon defendant returned to the building line; the second, with whom she walked a few feet, was seen to shake his head, as if to indicate negative response; while the third man after a brief conversation, accompanied defendant into 632 Eighth Avenue, emerging therefrom five or six minutes later. The officer asked the man what he was doing inside and, as a result of that conversation and defendant’s prior actions, she was placed under arrest.

Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed (Brinegar v United States, 338 US 160, 175-176). Defendant’s observed acts, superimposed on the arresting officer’s knowledge of her previous arrest for prostitution, the general area known for its prostitution-related activities and the numerous arrests for prostitution at the spot where the operations took place, in combination furnished " 'a reasonable ground for belief of guilt’ ” — the gist of probable cause (see Carroll v United States, 267 US 132, 161). Actually, from a practical standpoint, very little more was needed to afford that reasonable ground other than defendant’s departure with the third individual into the recesses and ways of 632 Eighth Avenue.

It is noted that a number of States have upheld the constitutionality of loitering for the purpose of prostitution statutes similar to the one here (see, e.g., City of Seattle v Jones, 3 Wash App 431, affd 79 Wn 2d 626; State v Armstrong, 282 Minn 39; State ex rel. Williams v City Ct. of Tucson, 21 Ariz App 489; contra, People v Gibson, 184 Col 444). In State ex rel. Juvenile Dept. of Multnomah v D. (27 Ore App 861), the court rejected similar challenges to a City of Portland, Oregon, ordinance prohibiting loitering to solicit prostitution (Code of City of Portland, § 14.24.050), as are raised on this appeal. Significantly, the Supreme Court dismissed the appeal in that case for want of a substantial Federal question (D. v Juvenile Dept. of Multnomah County, 434 US 914). Of course, while that summary disposition by the Supreme Court indicates the viability of section 240.37 under the Federal Constitution, it does not insulate the statute from attack under the New York Constitution (see Oregon v Hass, 420 US 714, 719). We hold, however, that for present purposes at least, the constitutional inquiry is the same.

Finally, we reject the claim that the scope of section 240.37 has a chilling effect on the exercise of First Amendment freedoms. Clearly, any criminal statute penalizes conduct and may, in the abstract, be said to impinge on speech or association in some fashion. But the protections afforded by the First Amendment are not absolute and the statute at issue here does not impermissibly sweep "within its prohibitions what may not be punished under the First and Fourteenth Amendments” (Grayned v City of Rockford, 408 US 104, 115, supra). That defendant may have employed language and the public streets to ply her trade does not imbue her conduct with the full panoply of First Amendment protections. On the contrary, the statute, by its terms, is limited to conduct "for the purpose of prostitution, or of patronizing a prostitute”— behavior which has never been a form of constitutionally protected free speech (see Broadrick v Oklahoma, 413 US 601, 615; Colten v Kentucky, 407 US 104, 111; Shuttlesworth v Birmingham, 382 US 87, 91; Cox v Louisiana, 379 US 559, 563).

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

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed.

      . Section 26-57 of the Ordinance Code of Jacksonville, Florida, provided at the times in question: "Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.”

      . Defendant’s brief states: "Penal Law § 240.37 leaves the citizen in an untenable and constitutionally impermissible dilemma. His or her exercise of concededly innocent activity may result in arrest if any police officer decides that it fits within his interpretation of the statute.” However, a footnote at the same page declares: "Appellant has never contended that the statute is void for vagueness in the strict 'notice’ sense.”

      . The Supreme Court has made plain that a dismissal of an appeal because the constitutional challenge to a State statute is not a substantial one is a decision on the merits of those issues raised in the appellant’s jurisdictional statement (Hicks v Miranda, 422 US 332, 343-345, n 14; Ohio ex rel. Eaton v Price, 360 US 246, 247 ["(v)otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case”]). Examination of the jurisdictional statement in D reveals that appellant raised the self-same issues presented for our review here and indeed relied heavily on the opinion of the Criminal Court in the instant case.

      . Indeed, it is doubtful that defendant even possesses the requisite standing to raise the First Amendment claim of strangers not before this court (see Broadrick v Oklahoma, 413 US 601, 610 ["a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court”]; United States v Raines, 362 US 17, 21).


text:
    James Savino, Doing Business as Deer Park Fruit Port, Respondent, v Merchants Mutual Insurance Company, Appellant.
    Argued April 27, 1978;
    decided June 8, 1978

      POINTS OF COUNSEL

      E. Richard Rimmels, Jr., and Frank J. Cafaro for appellant.
    The policy was effectively canceled upon receipt of the notice (before the fire). (Matter of Garelick v Rosen, 274 NY 64; Russ Togs v Fidelity-Phenix Ins. Co., 36 AD2d 706, 32 NY2d 628; Gately-Haire Co. v Niagara Fire Ins. Co. of City of N. Y., 221 NY 162; Louisiana Public Utilities Co. v Atlas Assur. Co., 238 App Div 474, 263 NY 595; Train v Holland Purchase Ins. Co., 62 NY 598; Rose Inn Corp. v National Union Fire Ins. Co., 229 App Div 349; Cosmopolitan Ins. Co. v Lumberman’s Mut. Cas. Co., 20 NY2d 145; Matter of Leatherby Ins. Co. v Scott, 51 AD2d 519.)

      Arthur Goldstein for respondent.
    I. The judgment should be affirmed because defendant failed to prove its affirmative defense of cancellation on the day before the fire. (Russ Togs v Fidelity-Phenix Ins. Co., 36 AD2d 706; Louisiana Public Utilities Co. v Atlas Assur. Co., 238 App Div 474, 263 NY 595.) II. The courts below correctly held that the cancellation was not effective until the end of the day of December 4, 1974. (Matter of Garelick v Rosen, 274 NY 64; Matter of Orlando v Rosen, 274 NY 472; Crown Point Ins. Co. v Aetna Ins. Co., 127 NY 608; De Persia v Merchants Mut. Cas. Co., 268 App Div 176, 294 NY 708; Rotsettis v Nationwide Mut. Ins. Co., 58 Misc 2d 667, 31 AD2d 722; 98 Delaney St. Corp. v Barocas, 275 App Div 651; Cannon v Merchants Mut. Ins. Co., 35 Misc 2d 625.) III. The purported notice of cancellation by the premium finance agency was not in compliance with the statute. (Cannon v Merchants Mut. Ins. Co., 35 Misc 2d 625; Rotsettis v Nationwide Mut. Ins. Co., 58 Misc 2d 667, 31 AD2d 722; Government Employees Ins. Co. v Mizell, 36 AD2d 452; Messing v Nationwide Mut. Ins. Co., 42 AD2d 1030.)
   OPINION OF THE COURT

Cooke, J.

This is an action by a storekeeper to recover for a fire loss on an insurance policy issued by defendant. Plaintiff financed the premiums through a company called Insur Aid, which paid defendant and was in turn to receive from plaintiff monthly installments, including finance charges. Under the terms of their agreement, if plaintiff defaulted in any payment to Insur Aid, the latter was appointed his attorney in fact to cancel the policy.

Plaintiff failed to pay a monthly installment due for November of 1974, and as a result on November 19, 1974 Insur Aid mailed him a notice stating that the effective date of cancellation of the policy would be December 3, 1974 at 12:01 a.m. Standard Time. Significantly, the statement also indicated that Insur Aid would notify the insurance company of the cancellation unless the past due installment was received by it not later than seven days before the effective date of cancellation.

Since plaintiff did not respond with payment, on December 2, 1974, Insur Aid mailed to defendant a copy of the above-described notice which indicated that the policy was to be canceled on December 3, 1974 at 12:01 a.m. That copy, however, was not received by defendant insurer until approximately 10:30 a.m. on December 4, 1974 in the course of regular mail. Ironically, a fire occurred at 8:30 p.m. that same day, December 4, at the premises of plaintiff, who now seeks to recover on the policy.

Special Term held for the plaintiff insured, and the Appellate Division agreed while also certifying a question to this court as to whether its decision was properly made. We answer in the affirmative.

This case involves an overlap of two principles recognized in the law of insurance. The first is that a request for cancellation of a policy is not effective, irrespective of the intention of the insured, until actual receipt by the insurance company or its agent (Russ Togs v Fidelity-Phenix Ins. Co., 36 AD2d 706, affd 32 NY2d 628; Louisiana Public Utilities Co. v Atlas Assur. Co., 238 App Div 474, 477, affd 263 NY 595). And, the second is that, in the absence of an express agreement to do so, the law does not recognize fractions of a day (Matter of Garelick v Rosen, 274 NY 64, 66, 68). Under the circumstances of this case, the blend of these two rules mandates recovery under the policy by plaintiff.

At the outset, it is necessary to consider defendant’s argument that these rules have been changed by statute. Defendant contends that since the cancellation notice was sent to it on December 2, 1974, which was prior to the December 3 effective date of said notice, the policy was canceled on the latter date — the day before the fire. In support of this position, defendant makes the broad assertion that common-law rules requiring actual receipt of a notice by an insurer or its agent in order to effect a cancellation of the policy have been superseded by section 576 of the Banking Law, relating to cancellation of insurance contracts upon default pursuant to premium finance agreements. This argument is without merit.

Defendant focuses on a subdivision stating in part: "A copy of such cancellation notice shall be sent to the insurer or insurers prior to the effective date of cancellation * * * whereupon the insurance contract shall be cancelled” (Banking Law, § 576, subd 1, par [d]). Hence, defendant asserts that the mere sending of the notice to the insurer canceled the coverage. What defendant overlooks is that the statute also requires that: "Not less than ten days unconditional written notice be served upon the insured or insureds * * * that his or their insurance contract or contracts shall be cancelled” (par [a]; emphasis added). In this instance, the notice was not unconditional or absolute, but, as mentioned, advised that Insur Aid would notify the insurer unless payment were received seven days before the effective date. Perforce, even if we were to agree that the statute alters general principles of law, at least on the facts of this case, the provision was not complied with and would not operate to overcome the requirement of receipt of the cancellation notice by the insurer. This is all the more so in view of the holdings that strict compliance is essential to effectuate cancellation under the statute (see Matter of Ottey [MVAIC], 71 Misc 2d 164, 167, affd 39 AD2d 874; Matter of Nassau Ins. Co. [Newsome], 86 Misc 2d 942, 944).

Defendant’s principal argument is that since the cancellation notice was received at approximately 10:30 a.m. on December 4, 1974 and the fire occurred at about 8:30 p.m. that same day, the policy should be considered canceled prior to the fire, since notice was received earlier in the day. In this respect, this court has held it to be "a matter of common knowledge as well as a principle of law that a contract which, by its terms, expires on a certain day, remains in force for the whole of that day unless by express wording it is limited to a certain time of the day upon which it expires” (Matter of Garelick v Rosen, 274 NY 64, 68, supra). However, defendant seeks to distinguish Garelick, which involved the day upon which a one-month extension of a policy was to expire, from the situation presented here, which involves a cancellation, as contrasted with a termination, of a policy. In other words, it is urged that, when a policy terminates under the terms of the agreement, the coverage should continue throughout the day unless otherwise provided, but that a cancellation notice should be effective at the moment of receipt. While we recognize that the contractual duration of the risk is not the same for all purposes as a cancellation (see 17 Couch, Insurance 2d, § 67:28, p 408), the applicable principles are not materially different in the context of this case.

We hold that on these facts midnight of the day of receipt should be the fixed point in time for cancellation to be effective. "In the absence of an express limitation, the law does not take notice of a fraction of a day” (Matter of Garelick v Rosen, 274 NY 64, 68, supra; see, generally, 43 Am Jur 2d, Insurance, § 336). The worth of this rule lies in its simplicity. The determination of the precise time of day a notice is received in this type of case would present serious evidentiary problems resulting from honest differences and might even become an invitation for perjury. A value of the "midnight rule”, often overlooked, is the reduced probability of events transpiring at or near that juncture with the beneficial consequence that crucial facts are less likely to be lost in the crush of daytime events.

Of course, it is recognized that the parties may particularize as to the time of day when a cancellation is to be effective (see Insurance-Duration-Fraction of Day, Ann., 38 ALR2d 768; see, also, 43 Am Jur 2d, Insurance, § 336, involving termination under the terms of the agreement, as distinguished from cancellation). Since the notice in Crown Point Iron Co. v Aetna Ins. Co. (127 NY 608, 617) called for cancellation "at once”, that case may be distinguished on the basis of the specificity or urgency of the request, although there is also no indication that the issue presented here was raised there. The point is that the setting of a particular time, such as midnight, noon, or any hour, avoids possibly irresolvable factual confrontations. This factual conglomerate illustrates the problems inherent in any other method of determining when the coverage ends. Accordingly, the order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v John Walsh, Appellant.
    Argued May 4, 1978;
    decided June 8, 1978

      POINTS OF COUNSEL

      iSteven A. Herman and William E. Hellerstein for appellant.
    I. Where appellant’s first trial was terminated pursuant to CPL 310.70 (subd 1, par [a]), after a hopelessly deadlocked jury rendered a partial verdict acquitting appellant of attempted murder, but deadlocked on assault and weapon charges, the trial court erred, when prior to the commencement of the second trial, it denied appellant’s motion to dismiss the unresolved charges as required by CPL 310.70 (subd 2). (Matter of Di Lorenzo v Murtagh, 46 AD2d 792, 36 NY2d 306; People v Seymour, 74 Misc 2d 2; People v Tanner, 30 NY2d 102.) II. Appellant’s fundamental right to confrontation, guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution and section 6 of article I of the State Constitution, was violated where the court admitted the prior testimony of Jose Villalobos, the People’s key identification witness at appellant’s first trial, even though the People negligently lost contact with Villalobos and then failed to make the required diligent or good faith effort to find him. (Barber v Page, 390 US 719; Mattox v United States, 156 US 237; United States v Motes, 178 US 458; Gorum v Craven, 465 F2d 443; People v Mainor, 77 Misc 2d 946; People v Crimmins, 36 NY2d 230.) III. The trial court erred when it refused defense counsel’s request to charge the jury that appellant’s identity as Neenan’s assailant must be proved beyond a reasonable doubt where identification was the sole issue for the jury to decide, the People’s evidence was inconsistent and contradictory, and a strong case of mistaken identity was developed. (United States v Wade, 388 US 218; Gregory v United States, 369 F2d 185; United States v Barber, 442 F2d 517; United States v Holley, 502 F2d 273; United States v Telfaire, 469 F2d 552; United States v Fernandez, 456 F2d 638; People v Diaz, 53 AD2d 587; People v Martinez, 28 AD2d 913.)

      John J. Santucci, District Attorney (Annamarie Policriti of counsel), for respondent.
    I. The court’s charge with respect to proof of identity was adequate and the court properly refused a further instruction requested after the charge was delivered. (United States v Shelvy, 458 F2d 823; United States v Barber, 442 F2d 517; People v Diaz, 53 AD2d 587; Gregory v United States, 369 F2d 185; United States v Telfaire, 469 F2d 552.) II. Appellant was not deprived of his right to confrontation when the court permitted the testimony of Jose Villalobos at the prior trial to be read in evidence after finding, following a hearing, that he could not with due diligence be found at the time of the retrial. (Mattox v United States, 156 US 237; Barber v Page, 390 US 719; California v Green, 399 US 149; People v Graham, 43 AD2d 182, 36 NY2d 633; People v Steeps, 52 AD2d 887; United States v Motes, 178 US 458; Williams v Meachum, 382 F Supp 521; People v Fish, 125 NY 136; People v Arellano, 55 AD2d 691.) III. Although there was a verdict of acquittal on the attempted murder count, CPL 310.70 did not bar appellant’s retrial on the unresolved assault and weapon counts. (People v Light, 285 App Div 496; Matter of Oliver v Justices of N. Y. Supreme Ct. of N. Y. County, 36 NY2d 53; United States v Jorn, 400 US 470; Matter of Napoli v Supreme Ct. of State of N. Y., 40 AD2d 159, 33 NY2d 980, 417 US 947; People v Seymour, 74 Misc 2d 2; Matter of Di Lorenzo v Murtagh, 36 NY2d 306; People v Salemmo, 38 NY2d 357; People v Lewis, 29 NY2d 923; People v Brooks, 34 NY2d 475; Matter of Meyer, 209 NY 386.)
   OPINION OF THE COURT

Cooke, J.

Based on an incident at a bar in Queens County on May 18, 1973, during which one of the patrons suffered a serious knife wound, defendant was indicted for attempted murder, assault in the first degree, and possession of weapons and dangerous instruments and appliances as a felony. Defendant was tried twice, and the issue before us is whether a partial verdict rendered in the first trial barred the second prosecution.

The first trial lasted five days. After deliberating until one in the morning, the jury reached agreement on one count but indicated that it was hopelessly deadlocked on the other two counts of the indictment. At the request of the Trial Justice, the jury rendered its verdict of not guilty with respect to the charge of attempted murder. Upon the court’s inquiry to counsel as to whether the panel should be sent back for further deliberations, defendant responded by asking for a mistrial, and the jury was excused.

Defendant thereafter moved to prohibit the People from retrying him, but the motion was denied and the second trial resulted in convictions for the remaining two counts of the indictment. Upon appeal, the Appellate Division modified by reversing the conviction for possession of weapons, instruments and appliances, as a felony, and dismissing said count, but rejected the contention that his retrial on the unresolved concurrent counts was barred.

CPL 310.70 concerns the rendition of partial verdicts and their effect. At the time of the trial of defendant, subdivision 2 of the statute provided: "Upon the rendition of a partial verdict pursuant to subdivision one, a defendant may be retried upon an unresolved count of an indictment when such unresolved count is consecutive, as that term is defined in subdivision two of section 300.30, as to every count upon which the jury did render a verdict, whether of guilty or not guilty” (L 1970, ch 996, § 1).

"Consecutive counts” of an indictment are those upon which consecutive sentences may be imposed following conviction and are distinguished from "concurrent counts” where only concurrent sentences may be given (CPL 300.30, subds 2, 3). Consecutive sentences are authorized where the crimes charged are not the result of a "single act”, but instead emanate from "separate successive acts” (see Penal Law, § 70.25, subd 2; see, e.g., People v Tanner, 30 NY2d 102, 108).

In the instant case, all of the counts of the indictment relate to one inseparable event — the defendant’s .alleged attack upon the victim which included the cutting or stabbing with a knife. A consecutive sentence could not have been imposed upon conviction for all of the charges since they were the result of a single act (see Penal Law, § 70.25, subd 2). Hence, upon rendition of a partial verdict of acquittal, since the unresolved counts were concurrent rather than consecutive, defendant could not be retried under CPL 310.70 (subd 2) as then written (compare Matter of Di Lorenzo v Murtagh, 36 NY2d 306).

In holding that defendant’s second trial was barred, we reject the assertion that defendant’s request for a mistrial removed the statutory impediment to retrial. That this argument is without merit may be demonstrated by examining another section of the CPL. When a jury is discharged before rendition of any verdict, the statute contemplates counsel’s consent as an alternative ground, and provides for retrial with virtually no limitation (CPL 310.60). This contrasts sharply with CPL 310.70 (subd 2), as then drafted, which makes no mention of counsel and envisions retrial following a partial verdict of only a specific type of count. The point is that the express wording of the statute in question does not allow retrial of anything but consecutive counts. Whether the court decided to grant a mistrial or to send the jury back for further deliberation, once the partial verdict was rendered, the unresolved concurrent counts could not be the subject of a second trial. Therefore, the fact that defendant moved for a mistrial could not serve to remove the statutory bar to retrial.

The foregoing analysis is also relevant with respect to the People’s assertion that the statute was never intended to bar retrial following a partial verdict of acquittal as distinguished from conviction. While the People have fashioned an argument based on prior law, the express terms of the statute do not even suggest that the Legislature intended any such distinction. Indeed, that the wording of the former subdivision might mandate dismissal under the circumstances presented here was a subject of concern (see People v Seymour, 74 Misc 2d 2 [Titone, J.]) and resulted in the previously noted amendment (see Bellacosa, Supplementary Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 310.70, Pocket Part [1977-1978], pp 255-256). The court should not strain for an interpretation for which there is no express or even infer-able foundation in the statute itself, and therefore this argument too must be rejected.

Accordingly, for the reasons stated, the order of the Appellate Division should be reversed and the indictment dismissed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order reversed, etc.

       The law has since been amended (L 1974, ch 762, eff Sept. 1, 1974), but the amendment is inapplicable to this case since the partial verdict here was rendered in December of 1973. The relevant subdivisions, as revised, are as follows:
      "2. Following the rendition of a partial verdict pursuant to subdivision one, a defendant may be retried for any submitted offense upon which the jury was unable to agree unless:
      "(a) A verdict of conviction thereon would have been inconsistent with a verdict, of either conviction or acquittal, actually rendered with respect to some other offense, or
      "(b) The submitted offense which was the subject of the disagreement, and some other submitted offense of higher or equal grade which was the subject of a verdict of conviction, were so related that consecutive sentences thereon could not have been imposed upon a defendant convicted of both such offenses.
      "3. As used in this section, a 'submitted offense’ means any offense submitted by the court to the jury, whether it be one which was expressly charged in a count of the indictment or a lesser included offense thereof submitted pursuant to section 300.50.”


text:
    In the Matter of Mandee Liquors, Ltd., Appellant, v Michael Roth, as Chairman of the State Liquor Authority, et al., Respondents.
    Argued February 10, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      Abraham Schatzman for appellant.

      Martin P. Mehler and Warren B. Pesetsky for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. On the record made, the administrative agency had discretion to either approve or disapprove the application (Matter of Sinacore v New York State Liq. Auth., 21 NY2d 379, 384).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Kelly A. Lue, an Infant, by Her Mother and Natural Guardian, Hyacinth Lue, et al., Respondents, v Josephine English, Appellant, et al., Defendant.
    Argued February 13, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      Bridgett A. Lundy and Roger P. McTiernan for appellant.

      Peter Overzat, Stanley Tessel and Daniel E. Kramer for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs. There was ample evidence to support the findings of fact. Given the affirmance of those findings by the Appellate Division, they are conclusive on this court (see NY Const, art VI, § 3, subd a; Cohen and Karger, Powers of the New York Court of Appeals, § 109). With respect to the alleged errors of law, they are few, in most instances not preserved for review by objection or exception, and in no event substantial enough to warrant reversal. The theories on which plaintiffs have recovered involved concurrent rather than alternative causes of the injuries. Besides, the jury by its special findings found causation on each of the theories.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.