source: Caselaw Access Project

author: Acting Chief Judge Simons.

license: Public Domain

text:
    Marvin Gonzales, Plaintiff, v Armac Industries, Ltd., Defendant and Third-Party Plaintiff; General Thermoforming Corporation, Third-Party Defendant.
    Argued January 6, 1993;
    decided February 11, 1993

      POINTS OF COUNSEL

      Gair, Gair, Conason, Steigman & Mackauf, New York City (Herman Schmertz of counsel), for plaintiff and Kroll & Tract, New York City (Robert T. MacDonnell and Jeffrey N Rejan of counsel), for third-party plaintiff.
    The Gonzales action was never settled at any time as no release from responsibility had been given by plaintiff to third-party plaintiff. These parties, by the explicit terms of their openly disclosed stipulation, had properly adhered to established procedures governing the further prosecution of the primary and third-party causes of action. (Trustees of Amherst Coll. v Ritch, 151 NY 282; Lambert Houses Redevelopment Co. v HRH Equity Corp., 117 AD2d 227; Dole v Dow Chem. Co., 30 NY2d 143; Kelly v Long Is. Light. Co., 31 NY2d 25; Klinger v Dudley, 41 NY2d 362; Feldman v New York City Health & Hosps. Corp., 107 Misc 2d 145, 84 AD2d 166, 56 NY2d 1011; Sommer v Federal Signal Corp., 79 NY2d 540; Frazier v City of New York, 141 Misc 2d 536; 622 W. 113th St. Corp. v Chemical Bank, 52 Misc 2d 444.)

      Granik Silverman, New City (David W. Silverman, Ricki H. Berger, Morrie Slifkin and Robert M. Lefland of counsel), for third-party defendant.
    I. Appellants misplaced reliance upon Judge Patterson’s decision in Milton v Mollins Mach. Co. (Lambert Houses Redevelopment Co. v HRH Equity Corp., 117 AD2d 227; Purcell v Doherty, 102 Misc 2d 1049, 80 AD2d 755, 55 NY2d 985, 56 NY2d 805; Feldman v New York City Health & Hosps. Corp., 56 NY2d 1011; Klinger v Dudley, 41 NY2d 362.) II. The stipulation and agreement entered into between plaintiff and defendant constitutes a release of liability or settlement of the main action. (Putnam v Otsego Mut. Fire Ins. Co., 41 AD2d 981, 45 AD2d 556; Gaffey v St. Paul Fire & Mar. Ins. Co., 221 NY 113; Lettiere v Martin El. Co., 62 AD2d 810, 48 NY2d 662.) III. Since Armac has settled its dispute with plaintiff, it may not seek contribution from third-party defendant. (Lettiere v Martin El. Co., 62 AD2d 810; Rock v Reed-Prentice Div. of Package Mach. Co., 39 NY2d 34; Klinger v Dudley, 41 NY2d 362; Feldman v New York City Health & Hosps. Corp., 107 Misc 2d 145, 84 AD2d 166, 59 NY2d 1011; Moore v Johnson, 147 AD2d 621; Mitchell v New York Hosp., 61 NY2d 208; Centron Corp. v United States, 585 F2d 982.) IV. If the Workers’ Compensation Law and the General Obligations Law are to continue to have their legislative purpose continued, public policy requires the certified questions to be answered in the affirmative.

      Raymond C. Green, New York City, and Herzfeld & Rubin,

      P. C., New York City (Herbert Rubin, David B. Hamm and Linda M. Brown of counsel), for The State Insurance Fund, amicus curiae.

    I. The stipulation and the proposed loan arrangement between plaintiff and Armac are a totally improper attempt to circumvent the exclusivity provisions of the Workers’ Compensation Law. (Shanahan v Monarch Eng’g Co., 219 NY 469; Billy v Consolidated Mach. Tool Corp., 51 NY2d 152; Dole v Dow Chem. Co., 30 NY2d 143; Hill v Metropolitan Suburban Bus Auth., 157 AD2d 93; Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co., 45 NY2d 551; Williams v Hartshorn, 296 NY 49; Heritage v Van Patten, 59 NY2d 1017; Owens v Hirth, 166 AD2d 244.) II. In any event, the stipulation, by its terms, is clearly violative of General Obligations Law § 15-108 (c). (Lettiere v Martin El. Co., 62 AD2d 810, 48 NY2d 662; Meleo v Rochester Gas & Elec. Corp., 72 AD2d 83, 49 NY2d 797; Purcell v Doherty, 102 Misc 2d 1049, 80 AD2d 755, 55 NY2d 985; Lambert Houses Redevelopment Co. v HRH Equity Corp., 117 AD2d 227; Ardsley Constr. Co. v Port of N. Y. Auth., 61 AD2d 953; Cable Belt Conveyors v Alumina Partners, 717 F Supp 1021; Colby v Penney Co., 811 F2d 1119.)
   OPINION OF THE COURT

Acting Chief Judge Simons.

This Court has accepted the following question certified by the United States Court of Appeals for the Second Circuit: "Whether a defendant manufacturer’s pretrial agreement with an injured plaintiff, admitting liability for two percent of any damages a jury might award, and preventing plaintiff from enforcing against defendant any judgment in excess of 2% of plaintiff’s total damages, is a 'release from liability’ within the meaning of § 15-108 (c) of the General Obligations Law.” (970 F2d 1123, 1126.) We answer that question in the affirmative.

I

Plaintiff was injured when using a machine in the course of his employment with General Thermoforming Corporation (GTC). The machine was manufactured by defendant Armac Industries, Ltd. and sold to GTC in 1983. After receiving workers’ compensation benefits for his injuries, plaintiff commenced an action against Armac in Federal court alleging that it had designed an unreasonably dangerous and defective product. Armac, in turn, commenced a third-party action against GTC alleging claims for contract indemnification and contribution.

Before trial, plaintiff and Armac entered into an agreement by which Armac conceded liability for 2% of any damages which plaintiff might obtain from a jury. In return, plaintiff agreed not to enforce any judgment against Armac in excess of 2% of the total damages awarded, "except as loan arrangements may be necessary to permit the plaintiff to collect any monies from the third-party defendant in the event that there is an apportionment of liability against the third-party defendant [GTC] by the jury.”

After this agreement was disclosed to the court, GTC moved for summary judgment dismissing Armac’s third-party claims. The United Stated District Court granted the motion to the extent of dismissing the claim for contribution, but denied it with respect to the indemnification claim. Plaintiff and defendant subsequently stipulated that the value of the case was $500,000 and a final judgment was entered. Plaintiff and defendant then appealed to the Court of Appeals. Following the procedure set forth in 22 NYCRR 500.17, the Court of Appeals certified to us the question set forth above.

II

General Obligations Law § 15-108 explains what happens when one of several tortfeasors obtains a release from liability. A settlement, or release, by one tortfeasor does not relieve the others from liability, but it does reduce the amount which can be recovered from them by (1) the amount stipulated by the settlement, (2) the amount of consideration paid for it, or (3) the released tortfeasor’s equitable share of the damages, whichever is greatest (General Obligations Law § 15-108 [a]). The settling tortfeasor is relieved from liability to any other person for contribution but, in exchange, is not entitled to obtain contribution from any other tortfeasor (General Obligations Law § 15-108 [b], [c]). Thus, the statute establishes a quid pro quo arrangement: the settlor limits its liability but in exchange forfeits any right to contribution. The question before us is whether the agreement between Armac and plaintiff constituted a release of Armac from liability to plaintiff so that its claim for contribution from GTC was properly dismissed pursuant to General Obligations Law § 15-108 (c).

Ill

Our decision is controlled by Lettiere v Martin El. Co. (62 AD2d 810, affd 48 NY2d 662). In Lettiere, the plaintiff sued Martin Elevator Co. and it, in turn, instituted a third-party claim against the plaintiff’s employer, Bing and Bing, Inc. Prior to trial, plaintiff and Martin settled the claim for $250,000, but delayed entry of the judgment until after trial. They contended that they had reached a postjudgment settlement which did not jeopardize Martin’s contribution claim against Bing under General Obligations Law § 15-108. The Appellate Division rejected that contention, determining that the settlement was not postjudgment, but rather was a prejudgment settlement, the effect of which was postponed until entry of judgment (Lettiere v Martin El. Co., 62 AD2d, at 814, supra). In claiming otherwise, plaintiff and Martin relied upon our decision in Rock v Reed-Prentice Div. of Package Mach. Co. (39 NY2d 34). In Rock, however, the manufacturer settled after the contribution claim had been fully litigated and reduced to judgment and we held that General Obligations Law § 15-108 did not apply to postjudgment settlements (Rock v Reed-Prentice Div. of Package Mach. Co., 39 NY2d, at 41, supra). By contrast, in Lettiere neither the cross claim for contribution nor the question of Martin’s liability had been determined at the time Martin conceded liability and settled the claim (Lettiere v Martin El. Co., 62 AD2d, at 814, supra). Martin’s claim for contribution was dismissed because the prejudgment agreement constituted a release from liability within the contemplation of General Obligations Law § 15-108 (0.

Here, as in Lettiere v Martin El. Co. (supra), the third-party action was instituted against the plaintiff’s employer and, at the time Armac conceded 2% liability, neither Armac’s nor GTC’s liability had been determined. Thus, the only essential difference between the cases is that in Lettiere the defendant stipulated to a dollar amount while here the defendant stipulated to a percentage of damages. The difference is without significance. In both cases, the defendant is attempting to limit its liability while continuing its chance of recovering contribution from the plaintiff’s employer, with the recovery being passed on to the plaintiff either directly or, if the defendant has limited resources as in this case, through subsequent "loan arrangements” contemplated by the parties. Agreements such as these violate the quid pro quo system envisioned by the statute and allow a defendant to effectively avoid litigation without making the concomitant sacrifice the statutory scheme contemplates (see, Rock v Reed-Prentice Div. of Package Mach. Co., 39 NY2d, at 41, supra).

Armac and plaintiff contend that the continuing need to establish manufacturer fault shows that the case has not yet been settled within the contemplation of General Obligations Law § 15-108. The agreement effectively ended the dispute between them however, and, by virtue of the intended disclosure to the jury of Armac’s admission of liability for 2% of any damages awarded by the jury, denied GTC any chance of successfully arguing that Armac had no claim for contribution against GTC either because Armac bore all or no responsibility for plaintiff’s injuries, or because plaintiff bore 100% responsibility. Having conceded nominal liability and terminated the adversarial relationship between itself and plaintiff, Armac stopped defending the main action, informing the court prior to trial that it had abandoned all its defenses and counterclaims, that it would not seek voir dire of prospective jurors, and that it did not plan to call any witnesses on its behalf. By its agreement, Armac effectively avoided any further litigation of the claims against it and consequently forfeited its contribution claim against GTC as required by section 15-108 (c). Having paid to limit its exposure, Armac may not press its contribution claim against GTC, which was not a party to the agreement (cf., Mitchell v New York Hosp., 61 NY2d 208, 216-217).

IV

Nor is there merit to appellants’ contention that the agreement here is simply a loan arrangement similar to the one sanctioned in Feldman v New York City Health & Hosps. Corp. (56 NY2d 1011, revg 84 AD2d 166, for reasons set forth in 107 Misc 2d 145). In Feldman, the Court approved an agreement in which a stranger to the litigation loaned the main defendant the amount necessary to pay the plaintiff so that it could then seek contribution from the third-party defendant. There, the relative liabilities had already been established at trial and the parties were simply attempting to devise a way to satisfy those liabilities. This case is distinguishable because the agreement was reached prior to trial and prior to the determination of the parties’ relative exposure to liability.

Alternatively, Armac and plaintiff contend that their agreement is a liquidating agreement similar to the one approved in Lambert Houses Redevelopment Co. v HRH Equity Corp. (117 AD2d 227). Lambert Houses involved a contract dispute, rather than a personal injury action, and General Obligations Law § 15-108 applies only to contribution claims in tort actions (see, McDermott v City of New York, 50 NY2d 211, 219-220; see also, Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 29). Whatever may be the validity of liquidating agreements in contract disputes, Armac’s contribution claim in this tort action cannot survive its agreement with plaintiff without violating the statutory scheme set forth in General Obligations Law § 15-108 (see generally, PJI 2:275A [1992 Supp]).

V

Finally, we note that agreements such as these do substantial violence to the State’s system of workers’ compensation. The sole and exclusive remedy of an employee against his employer for injuries in the course of employment is compensation benefits (see, Workers’ Compensation Law §§ 11, 29 [6]; Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 156). Fixed compensation is guaranteed to the injured employee regardless of fault and in exchange for reducing the costs and risks of litigation to the parties. When we decided that a defendant manufacturer could recover contribution from a plaintiff’s employer in Dole v Dow Chem. Co. (30 NY2d 143), we concluded that an exception to the Workers’ Compensation Law’s exclusivity rule was warranted in order to avoid inequity to a defendant left with the total bill for a plaintiff’s injuries because of the mere happenstance that the other tortfeasor was the plaintiff’s employer and therefore immune from direct suit (see, Sommer v Federal Signal Corp., 79 NY2d 540, 558). In subsequent decisions we have refused to weaken the exclusivity rule further (see, Billy v Consolidated Mach. Tool Corp., 51 NY2d, at 159, supra [rejecting "dual capacity” doctrine which would have permitted employees to sue employers directly in their capacity as property owners or manufacturers]; Heritage v Van Patten, 59 NY2d 1017, 1019 [disallowing suit against coemployee/property owner because workers’ compensation constitutes the exclusive remedy against a coemployee]).

The plan devised by plaintiff and defendant allows the defendant, in effect, to sell plaintiff its claim against plaintiff’s employer thereby avoiding the exclusivity provisions of the statute. Approval of the practice would jeopardize the workers’ compensation system, violating the balance embodied in the law, by holding employers subject to the no-fault liability envisioned by the statute but denying them the protection from tort actions and large damage verdicts which the statute was intended to foreclose (see, Billy v Consolidated Mach. Tool Corp., 51 NY2d, at 159, supra). The rationale for the rule in Dole v Dow Chem. Co. (supra) was to achieve an equitable result between defendants. It did not signal a move to expose employers to tort liability so that an employee could obtain a recovery from an employer in excess of workers’ compensation benefits. Agreements such as the one presented here do just that, enabling an employee to do indirectly that which cannot be done directly, to reach beyond impecunious or insolvent defendants and into an employer’s deep pockets. The agreement not only is contrary to General Obligations Law but it also violates the exclusivity policy embodied in the Workers’ Compensation Law.

Accordingly, we hold that the Armac agreement constituted a "release from liability” within the meaning of General Obligations Law § 15-108 (c) and therefore the certified question should be answered in the affirmative.

Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the affirmative.

       By stipulation the indemnification claim was discontinued without prejudice to defendant reinstating it following determination of the appeal.


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v Lucius McDaniel, Appellant.
    Argued January 13, 1993;
    decided February 25, 1993

      POINTS OF COUNSEL

      Earle Giovanniello, Brooklyn, for appellant.
    I. The repeated admission into evidence of complainant’s prior consistent statements constituted damaging, inadmissible hearsay which denied defendant a fair trial. (Fishman v Scheuer, 39 NY2d 502; People v Rice, 75 NY2d 929; People v O’Sullivan, 104 NY 481; People v Deitsch, 237 NY 300; People v Davis, 44 NY2d 269.) II. The trial court’s failure to give a missing witness charge constituted reversible error. (Graves v United States, 150 US 118; People v Gonzalez, 68 NY2d 424.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Jay L. Weiner and Jay M. Cohen of counsel), for respondent.
    I. Defendant’s claim regarding admission of hearsay evidence constituting prior consistent statements is almost entirely unpreserved and is, in any event, meritless; even if admission of that testimony were error, overwhelming evidence of defendant’s guilt rendered it harmless. (People v McDaniel, 178 AD2d 612; People v O’Sullivan, 104 NY 481; People v Qualls, 55 NY2d 733; People v Medina, 53 NY2d 951; People v Donovan, 59 NY2d 834; People v Cruz, 59 NY2d 984; People v Gonzalez, 55 NY2d 720, 456 US 1010; People v Maschi, 49 NY2d 784; People v Jamerson, 68 NY2d 984; Baccio v People, 41 NY 265.) II. Because defendant did not establish that the uncalled witness was knowledgeable about a material issue in the case, and because the prosecutor showed that the instruction would not have been proper, the trial court correctly refused to deliver a missing witness instruction. (People v Gonzalez, 68 NY2d 424; People v Dekle, 56 NY2d 835; People v Kitching, 78 NY2d 532.)
   OPINION OF THE COURT

Kaye, J.

This appeal of a conviction for rape and related crimes centers on two exceptions to the evidentiary rule against use of prior consistent statements to buttress a witness’ testimony. We hold that evidence of prompt outcry was admissible but that other pretrial statements by the complainant, introduced by the prosecution to rehabilitate her after impeachment by the defense with prior inconsistent statements, were not. Moreover, on this record, we cannot say the errors were harmless. Accordingly, a new trial is necessary.

I.

On February 10, 1989, defendant spent the night at the home of Jane Doe, with whom he had been intimate for several months. Doe lived with her 11-year-old daughter, Mary, and two younger sons, ages six and four (Mary’s stepbrothers). Also living in the Brooklyn apartment was Linda Jones, an elderly woman. Doe was then separated from her husband, the boys’ father.

Mary usually slept in a bedroom next to her mother’s but when defendant stayed over, Doe had Mary sleep in the living room, for privacy. According to Mary’s testimony, on February 10, defendant awakened her in the middle of the night, pulled oif her tights and underwear and touched her breasts. He also rubbed his penis against her vagina for a minute or two and then "went in a little bit”. Defendant pushed Mary’s shoulder and threatened that if she told he would do something bad to her. In the morning, Mary allegedly reported the incident to her mother, but because Doe did not believe her daughter, she took no action.

Mary testified that a similar incident occurred one week later, on February 17. That night, Mary’s two young friends slept over. The three children slept in the living room while Mary’s brothers slept in the bedroom with their mother and defendant. According to Mary, defendant again woke her up, fondled her breasts and vagina, and "went in a little bit” with his penis.

One of the friends sleeping over, then about seven years old, testified that although it was dark, she saw defendant touch her friend’s chest and "private spot” between her legs, and that defendant stuck his "d-i-c-k” in her. Jones testified that she heard "whining” in the living room, went there, turned on the lights and saw defendant sitting on the couch, fully clothed. On other occasions that night, Jones heard noises in the living room and when she went to investigate, saw defendant.

The next day Mary told her mother what had allegedly happened but again Doe did nothing. When Doe’s husband visited his sons on February 19, Mary told him what had happened and he informed the police.

On March 6, Doe took Mary to the hospital to be examined by a pediatrician. Although examining the child, the physician did not have Mary remove her clothes, but instead set up an appointment with a gynecologist. Mary did not keep that appointment.

The Challenged Statements

Doe’s Testimony

Questioning Doe about the first episode, the prosecutor asked if Mary had "occasion to make a complaint to you” the next morning. Doe responded affirmatively, and when the follow-up question was posed — "what was the substance of that complaint?” — defendant objected. At sidebar, defendant protested that although the fact of a complaint was admissible as prompt outcry, the content of the complaint was not. The court overruled the objection, and Doe testified that her daughter reported that defendant "bothered her,” "attacked her” and "tried to molest her.”

A similar question was posed about the second incident. After Doe testified that her daughter had made a complaint, the prosecutor elicited, over objection, that the nature of the complaint was that defendant tried to "molest her.” Defendant moved to strike the latter response, the objection was sustained, and defendant did not ask for a curative instruction. Later, the court gave the jury a limiting instruction on prompt outcry testimony, explaining that it was admitted only to show that a complaint was made, not for its truth.

Mary’s Testimony

On direct examination, Mary testified that she told the police and an Assistant District Attorney that defendant had rubbed her breasts and vagina. Defendant objected that this was an inadmissible prior consistent statement. The court recognized that the prosecutor was anticipating the need to rehabilitate his witness, and instructed him to "get off that point” and save it for redirect, if necessary. When defendant asked that the answer be stricken, the court declined, reasoning that it would merely highlight the statement.

On cross-examination, defendant impeached Mary with several prior statements that were inconsistent with her trial testimony. For example, she admitted telling a police officer two days after the second incident that defendant had merely touched her on the chest and lower stomach. She also conceded that when discussing the case with a detective four days after the second episode, she made no mention of the alleged February 10 rape, and regarding February 17, all she said was that defendant touched her on the chest, stomach and legs. Mary was similarly impeached with statements made two weeks later at the precinct to the detective and an Assistant District Attorney. She also admitted telling the pediatrician that she was merely rubbed over her clothes.

On Mary’s redirect testimony, the prosecutor elicited a series of prior statements more consistent with her trial testimony. The child testified that after initially telling the detective and the Assistant District Attorney at the precinct that she had been fondled on the chest and vagina, she told them on a separate occasion that night that defendant also rubbed his penis against her vagina. Mary also testified that she told her mother on the mornings following each incident that defendant had rubbed his penis against her vagina. Finally, the child testified that she told the Grand Jury that defendant’s penis was rubbed against her vagina.

Although the trial court sustained an objection to the Grand Jury statement and instructed the jury to disregard the question and answer, the court overruled defendant’s objections to the other prior consistent statements. Defendant argued that his impeachment did not open the door to rehabilitation with consistent statements, unless the prosecution was seeking to rebut a claim of recent fabrication, which assertedly was not the case. The court ruled that in light of the cross-examination, the statements were admissible.

The jury convicted defendant of forcible and statutory rape for the February 10 incident, statutory rape for February 17, several counts of sexual abuse on each date, and endangering the welfare of a child. On appeal, the Appellate Division acknowledged that some of the statements were improperly admitted, but held that in light of the "overwhelming evidence” of guilt, the errors were harmless.

We disagree that the evidence of rape was overwhelming and now reverse and order a new trial.

II.

A witness’ trial testimony ordinarily may not be bolstered with pretrial statements (People v McClean, 69 NY2d 426, 428; see, People v Singer, 300 NY 120, 123-124; People v O’Sullivan, 104 NY 481, 486). Several rationales underlie the rule: untrustworthy testimony does not become less so merely by repetition (People v McClean, 69 NY2d, at 428, supra); testimony under oath is preferable to extrajudicial statements (Crawford v Nilan, 289 NY 444, 451); and litigations should not devolve into contests as to which party could obtain the latest version of a witness’ story (id.).

This case involves two exceptions to the rule — first, evidence of prompt outcry and second, prior consistent statements used to rebut a charge of recent fabrication. As discussed below, although we do not find error in the admission of prompt outcry testimony, we reach a contrary conclusion with regard to Mary’s pretrial statements.

Prompt Outcry

In this State, evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place (see, People v Rice, 75 NY2d 929, 931; People v Deitsch, 237 NY 300, 304; People v O’Sullivan, 104 NY, at 486-487; Richardson, Evidence § 292 [Prince 10th ed]). Historically, the doctrine evolved from the common-law requirement of "hue and cry,” where all victims were required to prove they immediately alerted the community that a crime had occurred (State v Hill, 121 NJ 150, 157, 578 A2d 370, 374; Note, A Matter of Time: Evidence of a Victim’s Prompt Complaint in New York, 53 Brooklyn L Rev 1087, 1089 [1988]).

The contemporary rationale for permitting prompt outcry evidence is that some jurors would inevitably doubt the veracity of a victim who failed to promptly complain of a sexual assault, such conduct being "natural” for an "outraged female.” (People v Rice, 75 NY2d, at 931, supra; People v O’Sullivan, 104 NY, at 486, supra.) Although recent studies have suggested that it may not be unusual for a rape victim to withhold complaint (see, People v Bennett, 79 NY2d 464, 471-472; People v Taylor, 75 NY2d 277, 285-287 [discussing Rape Trauma Syndrome]), the admissibility of prompt outcry remains viable because "our judicial process cannot remove from every juror all subtle biases or illogical views of the world. The fresh-complaint rule responds to those jurors on their own terms.” (State v Hill, 121 NJ, at 164, 578 A2d, at 377, supra.)

One limitation on admissibility of such evidence is that, as its name suggests, the complaint must have been made promptly after the crime, and another is that only the fact of a complaint, not its accompanying details, may be elicited. Defendant argues that both conditions were transgressed.

A complaint is timely for purposes of the prompt outcry exception if made "at the first suitable opportunity” (People v O’Sullivan, 104 NY, at 486, supra; Richardson, Evidence § 292 [Prince 10th ed]). "There can be no iron rule on the subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified.” (Higgins v People, 58 NY 377, 379.) Thus, promptness is a relative concept dependent on the facts — what might qualify as prompt in one case might not in another.

Here, on two occasions, a child was allegedly awakened during the night and sexually assaulted. The child’s reports to the mother, on the mornings following each incident, unquestionably satisfy the first-suitable-opportunity requirement. The child could hardly be expected to awaken her mother immediately and possibly confront her alleged attacker. As the Appellate Division correctly held, however, statements made by the complainant days later — for example, to the police or prosecutor — could not be admitted as prompt outcry in these circumstances.

Defendant next contends that the details of the complaints were improperly admitted. Our cases have uniformly held that only the fact of a complaint, not its details, is admissible (People v Rice, 75 NY2d, at 932, supra [description of attacker erroneously admitted]; People v Deitsch, 237 NY, at 304, supra [description]; Baccio v People, 41 NY 265, 271). The distinction is logical, for the limited purpose of the exception is to show that a prompt complaint had been made, thereby negating the tendency of some jurors to doubt the victim in the absence of such evidence (see, People v Rice, 75 NY2d, at 932, supra).

In the present case, no impermissible details were adduced. The prosecutor’s initial question to Doe, in each instance, was whether her daughter had made a complaint. The witness’ answers — "yes”—did not convey that the "complaint” related to a sexual attack, and thus the prosecutor was entitled to elicit the nature of the complaint, which was not apparent from the context. Doe’s responses — that her daughter reported being bothered, attacked, molested — did not exceed the allowable level of detail.

In sum, we conclude that Doe’s testimony about her conversations with Mary on the mornings following each incident was properly admissible under the prompt outcry exception.

III.

We next turn to a second exception to the rule against admission of prior consistent statements. By contrast to the foregoing discussion on prompt outcry, we conclude that reversible error was committed in the admission of bolstering pretrial statements.

If upon cross-examination a witness’ testimony is assailed— either directly or inferentially — as a recent fabrication, the witness may be rehabilitated with prior consistent statements that predated the motive to falsify (see, People v McClean, 69 NY2d 426, supra; People v Davis, 44 NY2d 269, 277; People v Singer, 300 NY 120, 123). This exception is rooted in fairness; it would be unjust to permit a party to suggest that a witness, as a result of interest, bias or influence, is fabricating a story without allowing the opponent to demonstrate that the witness had spoken similarly even before the alleged incentive to falsify arose.

Of course, not every inconsistency developed on cross-examination implies that the witness’ testimony is perjurious (see, People v Davis, 44 NY2d, at 277, supra). "Mere impeachment by proof of inconsistent statements does not constitute a charge that the witness’ testimony is a fabrication.” (People v McClean, 69 NY2d, at 428, supra.) Moreover, in applying the exception, it is important to identify when the motive to fabricate arose. In some cases, the motive may exist from the outset, and thus rehabilitation with consistent statements may be impossible. For example, in Davis, we held that a postarrest police report was inadmissible to rehabilitate an officer when defendant’s theory was that the case was trumped up from the beginning (44 NY2d, at 278, supra).

Here, as defendant conceded at trial, his cross-examination of Mary went beyond mere impeachment and sought to establish that her story was fabricated. The questioning, however, established no motive for the child to lie from the outset, but suggested that she was influenced by her stepfather — defendant’s rival for her mother’s affection — by the police and by the District Attorney. These themes were repeated in defendant’s summation. Accordingly, only Mary’s statements antedating these alleged influencing forces could be admitted to shore up her testimony.

Mary’s statements to her mother the day after each episode were thus properly admitted to rebut the implied charge of fabrication. Mary had not spoken to her stepfather about the attacks until two days after the second incident; her discussions with the police came even later. Although these rehabilitating statements — that defendant had rubbed his penis against her vagina — may have exceeded the scope of permissible detail under the prompt outcry exception, they were used here to rebut the suggestion on cross-examination that Mary turned a fondling incident into rape at the behest of her stepfather.

Mary’s statements to the police and District Attorney, however, stand on different footing. On the child’s cross-examination, defendant established that she was brought down to the station house at 10:00 p.m. one night about two weeks after the second incident. At midnight, she spoke to a detective and prosecutor and gave versions of the incidents that did not include allegations of rape. Later, on a separate occasion that night, the police and District Attorney accused the child of lying. She then stated, among other things, that defendant had rubbed his penis against her vagina. This latter statement could not be used for rehabilitation because it arose subsequent to the alleged influencing forces. Thus, the trial court erred in overruling defendant’s objection to this statement.

The trial court similarly erred in refusing defendant’s request to strike a prior consistent statement brought out on Mary’s direct testimony. As the court correctly noted, the child had yet to be cross-examined, and thus any rehabilitation with consistent statements was premature. Nevertheless, the court declined to issue a curative instruction, reasoning that it would only highlight the statement. Having requested specific curative action, defendant could not have been heard to later complain that such relief was prejudicial. But by the same token, the court could not refuse defendant’s request on the ground that it would have been prejudicial to him.

IV.

Having found error in the admission of prior consistent statements, we must determine whether such errors were harmless.

To be convicted of either statutory or forcible rape, the People had to prove, beyond a reasonable doubt, that defendant had "sexual intercourse” with Mary (Penal Law §§ 130.35, 130.30). Sexual intercourse requires "penetration” (Penal Law § 130.00 [1]). Thus a critical issue, assuming the jury believed some form of sexual assault occurred, was whether defendant had penetrated Mary (as she testified at trial), or did no more than fondle her (as some of her statements indicated), which would have established only the lesser charges of sexual abuse.

In this case, no physical evidence connected defendant to a rape. The physician did not have Mary remove her clothes, and the child did not keep her follow-up appointment with the gynecologist. The February 10 rape conviction rested solely on Mary’s testimony, and it appears that testimony was at odds with earlier versions of the events. The evidence of intercourse on February 10 was thus far from overwhelming and we cannot conclude, therefore, that the errors were harmless (see, People v Crimmins, 36 NY2d 230, 241). Accordingly, a new trial on the February 10 charges is necessary.

The evidence of rape on February 17 was only marginally stronger. Linda Jones, the elderly boarder, did not witness the crime. Indeed, when she saw defendant, he was fully clothed. Apart from Mary, the only other eyewitness was her seven-year-old friend, who conceded that the room was dark. Even were we to conclude that the evidence with respect to February 17 was overwhelming — which we do not — a new trial is required on all counts. There is a significant factual relationship among the charges. In fact, the endangering the welfare of a child count encompassed both incidents.

Defendant’s remaining contentions are either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Acting Chief Judge Simons and Judges Titone, Hancock, Jr., Bellacosa and Smith concur.

Order reversed, etc.

      . All names are fictitious (see, Civil Rights Law § 50-b).

      . Similarly, the Grand Jury testimony was inadmissible because it did not precede the alleged influences. However, the trial court sustained an objection to the statement — albeit on different grounds — and instructed the jury to disregard it. We therefore find no error in connection with this statement.


author: Per Curiam.

text:
    Michael A. Ball et al., Appellants, v Allstate Insurance Company, Respondent, et al., Defendant.
    Argued February 11, 1993;
    decided March 30, 1993
    POINTS OF COUNSEL

      Weg and Myers, P. C, New York City (Dennis T. D’Antonio
      and Myrle L. Horvitz of counsel), for appellants.
    I. Plaintiifsappellants complied with the policy of insurance which requires plaintiifs-appellants to "give us” a proof of loss within 60 days. (Peabody v Satterlee, 166 NY 174; La Canin v Automobile Ins. Co., 41 F Supp 1021; Pedrick v Commercial Union Ins. Co., 134 Misc 2d 313; Vassar v Camp, 11 NY 441.) II. Legislative intent precludes dismissal of plaintiifs-appellants’ claim. (Bailey v Nationwide Mut. Fire Ins. Co., 133 AD2d 915; Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 104 AD2d 258; La Canin v Automobile Ins. Co., 41 F Supp 1021; Margulies v Quaker City Fire & Mar. Ins. Co., 276 App Div 695; Bank of Utica v Canners Exch. Subscribers, 119 Misc 2d 939; Treptow v Exchange Mut. Ins. Co., 106 AD2d 767; Brostowin v Hanover Ins. Co., 154 AD2d 418; Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d 835; Ninth Fed. Sav. & Loan Assn. v New York Prop. Ins. Underwriting Assn., 99 AD2d 456; Pogo Holding Corp. v New York Prop. Ins. Underwriting Assn., 73 AD2d 605.) III. Where the terms of an insurance policy are ambiguous, they must be construed strictly against the insurer. (Insurance Co. v Godwin, 46 AD2d 154; Sincoff v Liberty Mut. Fire Ins. Co., 11 NY2d 386; Silverstein v Continental Cas. Co., 23 AD2d 801; Lachs v Fidelity & Cas. Co., 306 NY 357; Hartol Prods. Corp. v Prudential Ins. Co., 290 NY 44; Janneck v Metropolitan Life Ins. Co., 162 NY 574; McGrail v Equitable Life Assur. Socy., 292 NY 419; Metropolitan Life Ins. Co. v Durkin, 301 NY 376; People v Ryan, 274 NY 149; Olson v Kilian, 203 Misc 847.)

      Feldman & Rudy, Westbury (Stuart D. Markowitz of counsel), for respondent.
    I. Plaintiifs-appellants’ failure to give defendant-respondent a proof of loss within 60 days after defendant-respondent’s demand entitled defendant-respondent to summary judgment. (Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 104 AD2d 258; Maleh v New York Prop. Ins. Underwriting Assn., 64 NY2d 613; Marino Constr. Corp. v INA Underwriters Ins. Co., 69 NY2d 798; Hindi v New York Prop. Ins. Underwriting Assn., 120 AD2d 566; Aryeh v Westchester Fire Ins. Co., 138 AD2d 337; Brostowin v Hanover Ins. Co., 154 AD2d 418; C.F.C. Realty v Empire Fire & Mar. Ins. Co., 110 AD2d 508; Treptow v Exchange Mut. Ins. Co., 106 AD2d 767; Hicks v British Am. Assur. Co., 162 NY 284; Peabody v Satterlee, 166 NY 174.) II. Defendant Allstate did not waive the proof of loss requirement contained in the insurance policy by conducting the examinations under oath of plaintiffs. (Maleh v New York Prop. Ins. Underwriting Assn., 64 NY2d 613; Marino Constr. Corp. v INA Underwriting Ins. Co., 69 NY2d 798; Pioneer Ins. Co. v Deleo, 167 AD2d 795; Frank Corp. v Federal Ins. Co., 70 NY2d 966; Hindi v New York Prop. Ins. Underwriting Assn., 120 AD2d 566; Aryeh v Westchester Fire Ins. Co., 138 AD2d 337; Furey v Milgrom, 44 AD2d 91; Greenberg v Rosenberg, 174 AD2d 601.)
   OPINION OF THE COURT

Per Curiam.

Insurance Law § 3407 provides that the failure to furnish proofs of loss as specified in a contract of insurance shall not result in a forfeiture or diminution of a claim unless the insurer gives the insured written notice that it requires proofs of loss. It further provides:

"If the insured shall furnish proofs of loss within sixty days after the receipt of such notice and such form or forms, or within any longer period of time specified in such notice, such insured shall be deemed to have complied with the provisions of such contract of insurance relating to the time within which proofs of loss are required” (§ 3407 [a]; emphasis added).

The issue presented by this appeal is whether the requirement of the statute is satisfied when an insured places proofs of loss in the mail within 60 days but they are not received by the insurer until after the 60 days has expired. We hold that proofs of loss are "furnish[ed],” within the meaning of the statute, when they are placed in the mail, not when they are received by the insurer.

After plaintiffs sustained a loss exceeding $128,000 when their home was burglarized, they turned to their insurer, defendant Allstate Insurance Company, for indemnification. On March 13, 1989, they received, by certified mail, a written demand for proofs of loss from Allstate’s counsel. In compliance with Insurance Law § 3407, plaintiffs were asked "to furnish the completed and executed Sworn Statement in Proof of Loss to this law firm within sixty (60) days after * * * receipt of this notice.” On May 10, 58 days after receipt of the written demand, plaintiffs executed the proofs of loss and mailed them to Allstate’s counsel by certified mail. They allege that this mailing complied with the statutory requirement that proofs be "furnish[ed]” within 60 days.

The proofs were not received by Allstate, however, until May 16, 64 days after receipt of the written demand. Thus, Allstate contends that plaintiffs failed to fulfill the statutory requirements because the proofs of loss must be received, rather than mailed, within the statutory period. Allstate relies on Peabody v Satterlee (166 NY 174) in which this Court determined that where a policy provision required the insured to "render” proofs of loss within 60 days, mailing on the 60th day was insufficient to comply with the policy provision (Peabody v Satterlee, 166 NY, at 179, supra). Peabody was decided in 1901, before the Insurance Law was recodified and section 3407 (formerly § 172) added. Thus, the decision not only addressed a different term ("render” rather than "furnish”) but also interpreted a contract, not a remedial statutory provision. We are called upon to determine whether its holding must control our interpretation of the statute.

Generally, statutory language is to be construed according to its most obvious and natural meaning (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 94). The term "furnish”, meaning "to provide” or to "supply with” (Webster’s Third International Dictionary 923), does not unambiguously indicate whether deposit in the mail suffices (but see, Auto-Owners Ins. Co. v Gallup, 191 Mich App 181, 477 NW2d 463, 464 [provision requiring proofs of loss to be "render(ed)” in 60 days satisfied if placed in mail within that period]). Thus, we must look beyond the language, to the purpose the Legislature sought to accomplish when it enacted the statute (see, Wiley v Solvay Process Co., 215 NY 584).

Manifestly, the Legislature acted to protect insureds from unknowing forfeitures. By requiring that insurance claimants be alerted to their duty to furnish proofs of loss and extending the time period in which to comply, the Legislature sought to "protect 'the insured from the consequences of * * * oversight or neglect in complying with one of the conditions precedent to a recovery under the policy’ ” (see, Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 216 [quoting from Margulies v Quaker City Fire & Mar. Ins. Co., 276 App Div 695, 698]). The statute does not save the insured who fails to furnish proofs within 60 days from the date demanded, though alerted to the duty to do so (see, Igbara, supra, at 209-210 [failure to file proofs within time period is an absolute defense to an action on the policy]). It protects only those who, once put on notice, act promptly to assert their rights.

Given the remedial nature of section 3407, we conclude that the Legislature contemplated that proofs of loss would be "furnish[ed]” to the insurer when they were mailed. Allstate’s contrary interpretation of the statute would result in forfeiture even in those instances where the insured placed the proofs in the mail with the reasonable expectation that they would arrive at their destination before expiration of the 60-day period but were not received because of the inefficiency or mistake of the post office. The statute contains no explicit language requiring receipt within 60 days. For us to add that requirement would create a trap for unwary insureds who timely mail proofs of loss but forfeit their claims, nonetheless, because, for reasons beyond their control, the proofs were not received by the insurer until after expiration of the 60-day period. That result is not compatible with the modern commercial environment where the mails are extensively relied upon for communication between parties.

Therefore, we construe Insurance Law § 3407, insofar as it imposes the burden on insureds to "furnish” proofs of loss, to require only that claimants place their proofs in the mail within 60 days of receiving a written demand for such proofs. To the extent that Peabody v Satterlee (166 NY 174, supra) may conflict with our holding, we overrule it.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant Allstate Insurance Company’s motion for summary judgment denied.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur in Per Curiam opinion.

Order reversed, etc.


author: Bellacosa, J. Smith, J.

text:
    The People of the State of New York, Respondent, v Allied Health Care Products, Inc., William Doering and Raymond Ringer, Appellants.
    Argued January 6, 1993;
    decided February 23, 1993

      POINTS OF COUNSEL

      Dickstein, Shapiro & Morin of the District of Columbia Bar, admitted pro hac vice (Barry William Levine of counsel), Rapport, Meyers, Griffen & Whitbeck, Hudson, Burditt & Radzius, of the District of Columbia Bar, admitted pro hac vice, and Schulman, Treem, Kaminkow & Gilden, of the Maryland Bar, admitted pro hac vice, for appellants.
    I. The conduct charged in every count was fully authorized by New York law; the conduct was, therefore, lawful and the entire indictment was properly dismissed below. (People v Hedgeman, 70 NY2d 533; Sega v State of New York, 60 NY2d 183.) II. The statutes and regulations as interpreted by the Court below fail to provide the clear and unambiguous notice required of criminal prohibitions. (Connally v General Constr. Co., 269 US 385; United States v Matthews, 787 F2d 38; Trio Distrib. Corp. v City of Albany, 2 NY2d 690; Bouie v City of Columbia, 378 US 347.)

      Robert Abrams, Attorney-General, Albany (Jo M. Katz, Jerry Boone, Peter H. Schiff and Clive I. Morrick of counsel), for respondent.
    I. The Court below correctly concluded that a regulation governing certificates to operate air contamination sources does not authorize the release of hazardous substances into the environment in violation of the Endangering statutes. II. The Court below correctly restored the charge of causing air pollution. (Matter of Hospital Assn. v Axelrod, 165 AD2d 152.) III. ECL 71-2720 (2) did not apply to appellants’ conduct because appellants’ air contamination sources were not exempt from regulation. (Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205.) IV. The Court below correctly found that the regulations and statutes provide clear notice of prohibited acts sufficient to meet due process requirements. (United States v Harriss, 347 US 612; People v Illardo, 48 NY2d 408; Connally v General Constr. Co., 269 US 385; Boyce Motor Lines v United States, 342 US 337.)
   OPINION OF THE COURT

Bellacosa, J.

An investigation by the Department of Environmental Conservation (DEC) culminated in a Grand Jury indictment against appellant Allied Health Care Products, Inc. (Allied) and two of its employees. It charged five counts: (1) endangering public health, safety or the environment in the second degree (ECL 71-2713 [5]); (2) endangering public health, safety or the environment in the third degree (ECL 71-2712 [2]); (3) endangering public health, safety or the environment in the third degree (ECL 71-2712 [4]); (4) air pollution (ECL 71-2105; 6 NYCRR 211.2); and (5) operating an air contamination source without a certificate (ECL 71-2105; 6 NYCRR 201.2 [b]). The crimes were allegedly committed between March and October 1988, and the indictment was handed up in January 1990.

On defendants’ motions, County Court granted dismissal of all counts on the ground that the conduct alleged as prohibited under the indictment was, in fact, authorized under 6 NYCRR 201.2 (c). The Appellate Division, on the People’s appeal, reinstated counts 1 through 4 and affirmed the dismissal of count 5 (People v Allied Health Care Prods., 174 AD2d 246). A Judge of this Court granted leave to appeal to the defendants, and we now reverse and reinstate the County Court order dismissing the entire indictment.

Defendant-appellant Allied operates a small plant in Stuyvesant Falls, New York, which produces "Baralyme”, a carbon dioxide absorbent composed of barium and lime. In the course of production, a mixture of chemicals, including barium hydroxide, was vented outside the plant.

Prior to March 1988, Allied had never applied for any air pollution control permits and DEC had never inspected the plant. In March 1988, a DEC air pollution inspector conducted an inspection and, one week later, wrote to Allied’s plant manager, defendant-appellant Raymond Ringer, identifying various emission sources. The inspector advised that, as an owner of an "air contamination source (Process and exhaust or ventilation system)”, Allied must obtain a certificate from DEC to operate that source. The inspector enclosed a copy of the portion of the DEC regulations pertaining to air contamination and air pollution (6 NYCRR parts 201, 212) and permit application forms, and asked for a reply within 10 days setting forth Allied’s intended action.

Allied responded in timely fashion, advising that it had hired a consulting engineering firm to assist in processing its application for a certificate to operate and to "design and install a system to correct any deficiencies noted during your inspection o[f] March 8th, 1988”. In late April 1988, the consulting engineering firm submitted on Allied’s behalf an application for a permit to modify Allied’s plant equipment to correct the problems identified in the inspection report. The application lay pending with the DEC for one year. During that time, Allied urged the DEC to expedite the application process and reported that it had installed temporary measures in an effort to control dust emissions. The permit to install the proposed pollution control equipment was eventually granted by the DEC in April 1989 and was valid until May 1990. Ironically, during the same period, other DEC staff were apparently independently preparing criminal charges against Allied for offenses involving the same or closely related conduct allegedly committed from March through October 1988. Their investigation led to the indictment at issue, of which only the first four counts are now pertinent.

The Appellate Division agreed with County Court’s dismissal of count 5 — not at issue before us — on the ground that 6 NYCRR 201.2 (c) either permits the operation of an air contamination source without a permit while a permit to construct or modify the source is pending, or at least plausibly supports an exculpatory interpretation such that "the prosecution’s version cannot be the basis of criminal liability for malum prohibitum conduct without violating due process requirements of fair warning” (People v Allied Health Care Prods., supra, at 250). Nevertheless, the Court was persuaded by the Attorney-General’s argument that 6 NYCRR 201.2 (c) did not also go so far as to authorize "commission of the crime of air pollution” in violation of 6 NYCRR 211.2 as charged in count 4. Central to the Court’s analysis was a refined distinction between emitting air contaminants and "the far more dangerous condition the regulations define as air pollution” (People v Allied Health Care Prods., supra, at 251). That reasoning was then applied a fortiori to counts 1, 2 and 3, since they charged offenses under ECL article 71, title 27, an "entirely discrete set of statutory and regulatory provisions, all dealing with a different environmental risk” (People v Allied Health Care Prods., supra, at 252).

ANALYSIS

Generally, criminal prosecutions must be based on clear and unambiguous regulation or prohibition of conduct such that reasonable persons would be on notice that their conduct is criminally punishable. Count 4 of the indictment charges defendants-appellants with violations of a DEC regulation, 6 NYCRR 211.2. That regulation states in pertinent part, that "[n]o person shall cause or allow emissions of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration which are injurious to human, plant or animal life or to property, or which unreasonably interfere with the comfortable enjoyment of life or property.” Defendants-appellants persuasively argue that despite that general prohibition, 6 NYCRR 201.2 (c) specifically authorized, on a temporary basis, the very conduct that the DEC nevertheless charged as criminal under the circumstances of this case.

To be sure, 6 NYCRR 201.2 (c) speaks to the time period when an application for a "certificate to operate” is pending. Allied’s application in April 1988 was for a "permit to construct” (see, 6 NYCRR 201.2 [a]). However, the printed application form supplied by the DEC for this purpose is patently intended for both applications — an application for a "permit to construct” and an application for a "certificate to operate” an air contamination source. Indeed, the Attorney-General did not argue that distinction before the County Court. On appeal to the Appellate Division, the Attorney-General did urge the distinction between a certificate to operate and a permit to construct, but that Court rejected the argument (see, People v Allied Health Care Prods., 174 AD2d, at 249-250, supra) and that argument is not renewed by the People before us.

Thus, we treat an application for a permit to construct and an application for a certificate to operate as functional equivalents for the purposes of assessing the criminal accusations in this case, and look to 6 NYCRR 201.2 (c) to ascertain the extent of the temporary permission to operate.

The pertinent regulation, 6 NYCRR 201.2 (c), provides that "[a] person who owns or operates an existing air contamination source, but who does not have a certificate to operate” must apply for a certificate "and shall be permitted to continue operation of such source until [that operator] receives written notification that [its] application has been disapproved” (emphasis added). The provision grants permission to continue operation of an existing air contamination source during pendency of an application. While the People recognize that proposition, they nevertheless urge that the authorization to operate an "air contamination source” does not excuse criminally prosecutable conduct causing "air pollution”.

Another section of the regulations, 6 NYCRR 200.1, captioned "Definitions”, serves to place in perspective the People’s overbroad construction and application in this case. Although the dissent does not address these definitions and the concurrence disagrees with our analysis and conclusion concerning them, they form an integral part of the DEC’S mandate with respect to the continued operation of an "air contamination source”. The definitions for "air contaminant”, "air contamination” and "air contamination source or emission source” overlap somewhat. Yet, the Attorney-General argues that the meaning of the term "air contamination source” in section 201.2 is determined exclusively by section 200.1 (d), defining "air contamination source or emission source” as "[a]ny apparatus, contrivance or machine capable of causing emission of any air contaminant to the outdoor atmosphere”. Section 200.1 (b) defines "air contaminant” as "[a] dust, fume, gas, mist, odor, smoke, vapor, pollen or any combination thereof’. Neither makes specific reference to "air pollution”. Thus, we acknowledge some threshold plausibility in the Attorney-General’s argument that the pendent authorization for continued temporary operation of an air contamination source does not authorize "air pollution”. However, the State’s definitional argument is not a total answer in the face of the specific prescription in section 200.1 (c) that "air contamination” includes "[t]he presence in the outdoor atmosphere of one or more air contaminants which contribute or which are likely to contribute to a condition of air pollution.” As is evident, the regulation itself links "air contamination” and "air pollution”. In the context of a criminal prosecution, it is unreasonable to insist that an operator, given permission by the regulatory agency to operate an air contamination source, is barred from looking to the definition of "air contamination” in an effort to understand what conduct is criminally proscribed. By that definition, unless there is at least a likelihood of air pollution, there can be no air contamination. That, however, does not entirely resolve this case.

The circumstances require that we also examine the prohibition of air pollution of 6 NYCRR 211.2 in conjunction with 6 NYCRR 200.6 ("Acceptable ambient air quality”), which places a significant qualification on departmental enforcement powers in any case where emissions "contravene any applicable ambient air quality standard and/or cause air pollution”. In relevant part, the regulation states: "In such cases where contravention occurs or may occur, the commissioner shall specify the degree and/or method of emission control required.” Defendants contend that the Department’s communications with them during the period of the alleged violations must, in logic and in fairness, be construed as the Commissioner’s specification of the "degree and/or method of emission control required”. The People acknowledge on appeal that the Commissioner, consistent with the plain language of 6 NYCRR 200.6, has the authority to allow air pollution in some circumstances. That factor weighs heavily against the viability of the criminal charges lodged in this case.

In March 1988, the DEC inspected the plant and informed defendants that a certificate was required. The following month, after appropriate study, defendants submitted an application to DEC. They then contacted DEC asking for permission to install their proposed emissions control system prior to certification approval, but were informed that no such equipment could be installed until the DEC acted. DEC took no steps, reflected in this record, to expedite action on the application. When the certificate was finally granted a year later, defendants were given an additional year to install the emission controls. To countenance the view under the circumstances of this case that the DEC may, through its criminal enforcement side, prosecute conduct that it is administratively regulating and allowing, would be an unreasonable and unsupportable construction of the relevant statutes and regulations.

With respect to counts 1, 2 and 3, the Attorney-General argues for an analysis independent of that governing count 4. The People urge that the provisions of ECL article 71, title 27, which concerns the enforcement of the Environmental Conservation Law, are "entirely unrelated statutes dealing with a different environmental risk” than that governed by 6 NYCRR chapter III — Air Resources. However, for the purposes of assessing criminality under the circumstances presented here, they are inseparable. ECL 71-2720 directly links the enforcement provisions of that article with licenses, permits or certificates required by New York or the United States. This feature alone effectively intertwines ECL article 71 with 6 NYCRR part 201 and, thus, precludes an analysis which treats the two sources of law as independent and freestanding for the purposes of assessing the availability of criminal responsibility.

Moreover, ECL 71-2720 (1) exempts from the provisions of sections 71-2707 through 71-2714 any person who holds and complies with an applicable New York or Federal license, permit or certificate. Furthermore, ECL 71-2720 (2) stipulates that "no person who meets the requirements for an exemption from a New York state or federal license, permit, certificate or order shall be deemed in violation of sections 71-2707 through 71-2714 for engaging in conduct which would otherwise require such a license, permit, certificate or order.” The Attorney-General recognizes that section 71-2720 relates to permits and certificates governed by 6 NYCRR part 201, but attempts to distinguish that general applicability by urging that the ECL "exemption” refers to only those listed in 6 NYCRR 201.6, entitled "Exemptions”. However, ECL 71-2720, the statute itself, read fairly, contains no language limiting its universe of exemptions to 6 NYCRR 201.6, a regulation. We thus disagree with the view reflected in the dissent that an operator who has been granted permission to operate an air contamination source during the pendency of an application for a permit to construct cannot reasonably be deemed to be a "person who meets the requirements for an exemption from a New York state * * * permit” (ECL 71-2720 [2]) during the pendency of that application. The Legislature granted that unqualified exemption by a statute duly enacted into law. Surely, that is an act upon which citizens may reasonably rely and in relation to which they should not incur criminal responsibility.

This case cannot be resolved on the general axiom of the plain language doctrine as it pertains to the situation under these statutes and regulations. The language of these statutes and regulations, coupled with the particular agency actions exercised in this case, do not authorize a criminal prosecution. The authority to prosecute criminal conduct should not be gauged by what might be arguably forbidden, but by what is understandably legislated in a way that would put citizens on reasonable notice that they are at risk for penal sanction.

Accordingly, the order of the Appellate Division should be reversed and the order of County Court, Columbia County, dismissing the indictment should be reinstated.

Acting Chief Judge Simons (concurring). I concur in the Court’s result and its reasoning on counts 1, 2 and 3. I write separately, however, because I do not agree with its analysis of the relevant definition provisions of 6 NYCRR 200.1 (see, majority opn, at 32-33) or that they foreclose the prosecution of count 4 under these circumstances. I concur in the result, however, because I believe count 4 must be dismissed pursuant to 6 NYCRR 200.6 (majority opn, at 33). As the majority holds, it is unreasonable to read that section as permitting DEC to prosecute defendant criminally for conduct that it has regulated and allowed administratively (see, majority opn, at 33).

Smith, J.

(dissenting). The Appellate Division correctly held that defendants could be criminally prosecuted for releasing hazardous substances and polluting the air to such an extent that the public was endangered. Its order should be affirmed. Accordingly, I dissent.

On March 8, 1988, an inspector for the State Department of Environmental Conservation (DEC), visited Chemetron, the manufacturing plant owned by defendant Allied Health Care Products, Inc. located in Columbia County. Defendant Allied manufactured Baralyme, a carbon dioxide absorbent composed of barium and lime. Subsequently, Allied was informed that because of the emission of several "air contamination source[s],” a certificate from DEC was required to operate the plant. That requirement, for a permit to operate this type of plant, had been in effect since the early 1970s. By letter dated April 28, 1988, an application was submitted to DEC for a permit to allow Allied to modify its plant equipment to correct the problems identified in the DEC report. The permit was granted by DEC in April 1989.

During the time that the Chemetron plant was being inspected, an investigator for DEC’S Bureau of Environmental Conservation, Joseph Conroy, was assigned to investigate the emissions at Chemetron. That investigation consisted of interviewing various witnesses, inspecting areas in the general vicinity of Allied’s plant, and executing a warrant to search the plant and Allied’s records. The investigation revealed that the manufacturing process engaged in at Chemetron resulted in the venting of hazardous substances to the outside of the building. The hazardous substances were mixtures of chemicals, including barium hydroxide, that contained barium levels greater than 100 milligrams per liter, which levels are considered hazardous under New York law.

The latter DEC investigation culminated in a five-count Grand Jury indictment in January 1990. The indictment charged defendants Allied, Ringer, and the vice-president in Allied’s St. Louis, Missouri, office, who also supervised operations at the Chemetron plant, William Doering, with (1) endangering public health, safety or the environment in the second degree, in violation of ECL 71-2713 (5), (2) endangering public health, safety or the environment in the third degree, in violation of ECL 71-2712 (2), (3) endangering public health, safety or the environment in the third degree, in violation of ECL 71-2712 (4), (4) air pollution, in violation of ECL 71-2105 and 6 NYCRR 211.2, and (5) operating an air contamination source without a certificate, in violation of ECL 71-2105 and 6 NYCRR 201.2 (b).

County Court, Columbia County, granted defendants’ motion to dismiss the indictment against them, concluding that the conduct alleged in the indictment was authorized by 6 NYCRR 201.2 (c). The Appellate Division modified, on the law, by reversing so much of the County Court’s order as dismissed counts 1 through 4 of the indictment, reinstating those counts, and remitting the matter to County Court for further proceedings and, as so modified, affirmed (174 AD2d 246). The Court held that "the mere authorization under 6 NYCRR 201.2 (c) to operate an air contamination source during the pendency of an application to operate cannot be interpreted to authorize the creation of the far more dangerous condition the regulations define as air pollution” (id., at 251). The Court also noted that "[t]he language of the statute and regulations spells out what is allowed and what is prohibited with a reasonable degree of certainty, and this is sufficient to overcome any due process objection” (id., at 251). A Judge of this Court granted leave to appeal (79 NY2d 997).

The issue presented is whether the Appellate Division properly held that although 6 NYCRR 201.2 (c) authorized defendants to continue operation of an air contamination source pending an application for a permit, defendants could still be criminally prosecuted for releasing air pollution or other hazardous substances that endanger the public.

Defendants contend that the conduct charged in every count of the indictment is authorized by a regulation, 6 NYCRR 201.2 (c), and the Appellate Division erred in reversing the dismissal of four counts in the indictment. The People argue that the Appellate Division correctly concluded that 6 NYCRR 201.2 (c), which governs permits to operate air contamination sources, does not authorize air pollution or the release of hazardous substances into the environment.

There are several reasons why defendants’ prosecution is not prohibited here. First, the plain language of the Endangering statutes (ECL 71-2713 [5]; 71-2712 [2], [4]), which defendants are charged with violating in the first three counts of the indictment, prohibits the knowing or reckless release of hazardous substances. ECL 71-2105, which defendants are also charged with violating, in count 4 of the indictment, prohibits the violation of any of the provisions of article 19, the Air Pollution Control Act, or any code, rule or regulation promulgated pursuant thereto.

Second, the plain language of the regulation (6 NYCRR 201.2 [c]) which defendants contend prohibits their prosecution says absolutely nothing about permitting or continuing hazardous emissions.

Third, the history of 6 NYCRR 201.2 (b) and (c) indicates that they are related and designed to correct a specific problem. Specifically, 6 NYCRR 201.2 (b) states that with limited exceptions, "no person shall operate an air contamination source without having a valid certificate to operate issued by the commissioner.” Section 201.2 (c) permits an ongoing operation to continue while a certificate is being applied for. It does not permit the violation of the Endangering statutes. Moreover, section 201.2 (c) is a regulation that became effective in 1972, well before the Endangering statutes became effective in 1986.

Fourth, the language of two sections of the regulations makes clear that these prosecutions are not prohibited. Thus, 6 NYCRR 200.6 expressly prohibits air pollution caused by emissions from an air contamination source and states that "[notwithstanding the provisions of this Subchapter, no person shall allow or permit any air contamination source to emit air contaminants in quantities which alone or in combination with emissions from other air contamination sources would contravene any applicable ambient air quality standard and/or cause air pollution.” In addition, 6 NYCRR 211.2 prohibits emissions which are injurious to life.

Defendants also argue that ECL 71-2720 (2) exempts them from prosecution during the pendency of their application for a certificate to operate their air contamination source. The People contend that ECL 71-2720 (2) does not apply to defendants’ conduct because defendants’ air contamination sources were not exempt from State licensing regulations.

ECL 71-2720 (2) provides, in part:

”[N]o person who meets the requirements for an exemption from a New York state or federal license, permit, certificate or order shall be deemed in violation of sections 71-2707 through 71-2714 for engaging in conduct which would otherwise require such a license, permit, certificate or order.”

6 NYCRR 201.2 (a) states that "[e]xcept as provided in section 201.6 of this Part, no person shall commence construction of an air contamination source or proceed with a modification without having a valid permit to construct issued by the commissioner.” Section 201.6 expressly outlines the types of air contamination sources for which the owners or operators are exempt from the State licensing regulations. This Court has held that "where * * * [a] statute describes the particular situations in which it is to apply, 'an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded’ ” (Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208-209). Defendants do not meet the requirements for any of the exemptions from a New York State permit or certificate listed in 6 NYCRR 201.6. Rather, defendants were obligated to and did apply for a permit to operate their air contamination source. Thus, ECL 71-2720 (2) does not serve to shield defendants from criminal prosecution. Defendants’ assertion that 6 NYCRR 201.2 (c) supplies an additional exemption should be rejected.

Defendants argue further that the statutes and regulations as interpreted by the Appellate Division fail to provide the clear and unambiguous notice that is required for all criminal prohibitions. The People contend that the Appellate Division correctly found that the regulations and statutes provide clear notice of prohibited acts sufficient to meet due process requirements.

The statutory and regulatory provisions in this case clearly permit the owners or operators of air contamination sources to operate their sources during the pendency of an application for a certificate to operate, and prohibit air pollution or the emission of hazardous substances into the environment. Thus, the language of the statutes and regulations provides fair notice of what conduct is prohibited and is sufficient to meet due process requirements (see, People v Illardo, 48 NY2d 408, 413).

Judges Kaye and Titone concur with Judge Bellacosa; Acting Chief Judge Simons concurs in a separate opinion in which Judge Hancock, Jr., concurs; Judge Smith dissents and votes to affirm in another opinion.

Order reversed, etc.

      . ECL 71-2713 (5) provides, in part:
      "A person is guilty of endangering public health, safety or the environment in the second degree when * * *
      "5. [That person] knowingly engages in conduct which causes the release to the environment of more than one hundred gallons or one thousand pounds, whichever is less, of an aggregate weight or volume of a substance hazardous to public health, safety or the environment and such substance enters water”.

      . ECL 71-2712 (2) provides, in part:
      "A person is guilty of endangering public health, safety or the environment in the third degree when * * *
      "2. [That person] recklessly engages in conduct which causes the release to the environment of more than two hundred gallons or two thousand pounds, whichever is less, of an aggregate weight or volume of a substance hazardous to public health, safety or the environment”.

      . ECL 71-2712 (4) provides, in part:
      "A person is guilty of endangering public health, safety or the environment in the third degree when * * *
      "4. [That person] knowingly engages in conduct which causes the release to the environment of more than one hundred gallons or one thousand pounds, whichever is less, of an aggregate weight or volume of a substance hazardous to public health, safety or the environment.”

      . ECL 71-2105 states:
      "1. Except as provided in section 71-2113, any person who shall willfully violate any of the provisions of article 19 or any code, rule or regulation promulgated pursuant thereto or any final determination or order of the commissioner made pursuant to article 19 shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than two hundred fifty dollars nor more than ten thousand dollars or by imprisonment for a term of not more than one year, or by both such fine and imprisonment, for each separate violation. Each day on which such violation occurs shall constitute a separate violation.
      "2. No prosecution under this section shall be instituted until after final disposition of an appeal or review, if any, provided by section 19-0511.
      "3. All prosecutions under this section shall be instituted by the commissioner and shall be conducted by the Attorney General in the name of the people of the state of New York.
      "4. In the prosecution of any criminal proceeding under this section by the Attorney General and, in any proceeding before a grand jury in connection therewith, the Attorney General shall exercise all the powers and perform all the duties which the District Attorney would otherwise be authorized or required to exercise or perform, and in such a proceeding the District Attorney shall exercise such powers and perform such duties as are requested of him by the Attorney General.”

      . 6 NYCRR 201.2 (c) provides, in part: "A person who owns or operates an existing air contamination source, but who does not have a certificate to operate, shall apply for a certificate to operate in accordance with the provisions of section 201.3 of this Part and shall be permitted to continue operation of such source until he receives written notification that his application has been disapproved with reasons stated for the disapproval.”

      . See, nn 1, 2, and 3, supra.

        . 6 NYCRR 211.2 states the following: "No person shall cause or allow emissions of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration which are injurious to human, plant or animal life or to property, or which unreasonably interfere with the comfortable enjoyment of life or property. Notwithstanding the existence of specific air quality standards or emission limits, this prohibition applies, but is not limited to, any particulate, fume, gas, mist, odor, smoke, vapor, pollen, toxic or deleterious emission, either alone or in combination with others.”


author: Smith, J. Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Raymond Quevas, Appellant.
    Argued January 13, 1993;
    decided February 23, 1993

      POINTS OF COUNSEL

      Elon Harpaz, New York City, and Philip L. Weinstein for appellant.
    The admission of third-party testimony recounting the complainant’s prior out-of-court identification violated the requirements of CPL 60.25 and denied appellant due process where the complainant’s failure to identify appellant in court was not attributable to a lack of recollection. (People v Bayron, 66 NY2d 77; People v Nival, 33 NY2d 391, 417 US 903; People v Trowbridge, 305 NY 471; People v Adler, 140 NY 331; People v Johnson, 75 NY2d 856; People v Cwikla, 46 NY2d 434; People v Bouton, 50 NY2d 130; People v Allen, 300 NY 222.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Emil Bricker and Barbara D. Underwood of counsel), for respondent.
    Both courts below correctly found that the victim was unable to identify defendant in court on the basis of present recollection, and therefore the police officer was properly permitted to testify to a pretrial identification by the victim pursuant to CPL 60.25. (People v Bayron, 66 NY2d 77; People v Hernandez, 154 AD2d 197, 76 NY2d 736; People v Johnson, 75 NY2d 856; People v Cwikla, 46 NY2d 434; People v Nival, 33 NY2d 391, 417 US 903; People v Prochilo, 41 NY2d 759; People v Velazquez, 73 NY2d 815; People v Patterson, 53 NY2d 829; People v Williamson, 51 NY2d 801; People v Centano, 76 NY2d 837.)
   OPINION OF THE COURT

Smith, J.

Defendant was convicted, after a jury trial, of four counts of sodomy in the first degree (Penal Law § 130.50) and related crimes. The testimony was that on several occasions, the defendant and another man took the complainant, a 14-year-old somewhat retarded youngster, to the basement of a building and sodomized him.

The sole issue on this appeal is whether the prosecutor laid a proper foundation for the introduction of identification testimony through a police officer. CPL 60.25 permits such testimony where a witness testifies that he or she (1) has observed the perpetrator at the time of the crime or some other relevant period, (2) has observed that person on a subsequent occasion under constitutionally permissible circumstances and recognized the person as the one previously seen, and (3) is unable to say "on the basis of present recollection” whether the defendant is the same person (CPL 60.25 [1] [a] [iii]; see, People v Bayron, 66 NY2d 77, 81).

In this case, the complainant, before testifying about the details of the crime, was asked several times whether he saw one of the persons who sodomized him in the courtroom. He testified as follows:

"Q. [prosecutor] This guy that you are talking about, do you see that person in this courtroom today?
"A. [complainant] Nope.
"Q. You want to look around?
"A. Nope.
"Q. The whole room?
"A. Nope.
"Q. Do me a favor, you stand up—
"[defense counsel]: Objection.
"the court: Overruled.
"Q. Now, from there, you can look around, you see that person in the court?
"A. Nope.
"Q. Look around.
"[defense counsel]: Objection, asked and answered.
"the court: Please.
"Q. Look all around.
"A. Nope.”

Subsequently, the complainant testified that he had pointed out that person to a police officer during a search of the area where the criminal acts had occurred.

In light of this testimony, at the conclusion of the complainant’s direct testimony, defense counsel asked the court for a ruling on whether the police officer would be allowed to testify to the out-of-court identification. When the court indicated that it would be allowed, the defense attorney argued that the complainant had testified that the perpetrator was not in the courtroom. The following colloquy occurred:

"[defense counsel]: Well, Judge, it’s my position because the complainant didn’t say I don’t remember, he said 'Is that person in the courtroom,’ he said no, then it’s not a matter of recollection, it’s that person is not in the courtroom, the direct answer.
"the court: Counsel, I’m going to let the police officer testify and if you wish, when he gets back on the stand, before we go any further, I will have the witness walk around the courtroom and see if he can identify anyone, if he sees anybody that he recognizes.
"[defense counsel]: No, Judge.
"the court: You don’t? Okay. I notice the type of glasses he’s wearing. I don’t know if he can see that far, or if he didn’t look close enough, or if the District Attorney knows what questions to ask him.”

During redirect examination, the court tested the complainant’s ability to see:

"the court: Okay. Can you see that lady sitting at the table?
"the witness: Yes.
"the court: You see her?
"the witness: Yes.
"the court: You know what she’s wearing?
"the witness: This lady?
"the court: Not this lady, the lady at the table.
"the witness: Yes.
"the court: You can tell what she’s wearing?
"the witness: Yes. Got brown hair, tall, colored white.
"the court: Okay, good.”

The next day, defense counsel moved to have defendant released on his own recognizance during pendency of the trial because "the complainant categorically stated that the person who did these alleged acts to him was not in the courtroom.” The court denied the application, stating that when the witness was asked to make an identification, he "did not even look in the direction of the defendant. He looked to his left, to start with, then said no. * * * Then the District Attorney asked him to look again, and look around. So he looked half of the way, and I observed him closely, and he said no. I’m not sure whether or not he asked him, would you look around the courtroom. He hardly glanced in that direction, and he said, 'Nope.’ ”

The court subsequently permitted the police officer to testify about complainant’s out-of-court identification. After defendant was convicted, he moved to set aside the verdict on the basis of the erroneous admission of the officer’s identification testimony. The court denied the motion, noting that it observed the complainant very carefully and that "[although the question was repeated several times by the district attorney, two of those times the complaining witness did not even look in the direction of the defendant. And when he did look in the direction, he just glanced there. And there could be many reasons for that, counsel, for his answer of 'Nope, nope.’ ”

The proper foundation was not laid for the admission of the police officer’s testimony as to the complainant’s out-of-court identification of the defendant. Although it was their burden to do so, the People did not establish the reason why the complainant could not make an in-court identification.

In order to lay a proper foundation under CPL 60.25 there must be testimony from the witness which establishes a lack of present recollection of the defendant as the perpetrator. The testimony may occur at the trial (People v Black, 130 AD2d 353; People v Jamerson, 117 AD2d 754, affd 68 NY2d 984) or it may occur at a hearing to suppress identification testimony and be the basis of a conclusion by the court not to permit the witness to identify the defendant at trial (People v Cwikla, 46 NY2d 434). The evidence must establish a lack of present recollection as a basis for the lack of identification and not a fear of identifying the defendant (People v Bayron, 66 NY2d 77, supra; People v Johnson, 75 NY2d 856). Here, the identification testimony from the witness was ambiguous and there was no basis for the court to make a finding in accordance with CPL 60.25 that the witness could not identify the defendant on the basis of present recollection.

Moreover, the court did not make a finding that the complainant had no present recollection of the defendant. While the court initially suggested three possibilities — visual impairment, failure to look closely, or inadequate questioning by the prosecutor — after the court’s examination, it commented that the witness did not make an in-court identification because he did not look carefully at defendant. However much deference is given to the trial court’s findings (dissenting opn, at 49), and however broadly we construe the "remedial statute” (dissenting opn, at 46), the People have failed to satisfy the prerequisites for admission of third-party identification testimony. It is possible, for example, that the complainant could not identify defendant because (1) he was physically or mentally incapable of doing so; (2) he was too frightened to do so (compare, People v Bayron, 66 NY2d 77, supra); or (3) defendant was not the perpetrator.

Under these circumstances, the receipt of the identification testimony of the police officer was error (see, People v Bayron, 66 NY2d 77, supra).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Bellacosa, J.

(dissenting). I would affirm the order of the Appellate Division upholding the judgment of conviction for sodomy, sexual abuse and endangering the welfare of a developmentally disabled youngster.

The reversal of this conviction turns solely on a foundational evidentiary ruling of the trial court after the victim, who suffered from certain impairments, was unable to make an in-court identification of the defendant. The refusal to uphold the statutory authorization in CPL 60.25 that contemplates the admission of third-party identification testimony in circumstances such as are presented in this case elevates form over substance and undermines the central goal of this remedial statute.

The procedural heart of this appeal is CPL 60.25. It authorizes a trial court to allow a third party to testify to an out-of-court identification of a defendant when the direct witness— here, the victim — is "unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question” (CPL 60.25 [1] [a] [iiij).

It is well established that a genuine inability — as contrasted to a failure of will — is necessary to satisfy the statutory prerequisite (People v Johnson, 75 NY2d 856, 857; People v Bayron, 66 NY2d 77, 82) and to justify the use of the statutory alternative to present relevant evidence to the jury. However, this Court has not limited the statutory inability to a specific incapacity to recall a previously formed mental image of the defendant. For example, the statute may be utilized in a situation in which the witness, although possibly able to recall the previously formed mental image of the defendant, is unable to make an in-court identification due to a "change in appearance of the defendant” (People v Nival, 33 NY2d 391, 395; accord, People v Bayron, 66 NY2d 77, 80 supra; see also, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 60.25, at 639). This Court has succinctly stated the core of the rule as:

”[W]here at the time of trial the eyewitness is unable to recognize the defendant, testimony of his own previous identification, as well as testimony of third persons 'to whom the witness promptly declared his recognition on such occasion’ (CPL 60.25 [1] [b]), is allowable as evidence-in-chief of identification” (People v Bayron, 66 NY2d 77, 81, supra [emphasis added]).

The application of the statute and rule in this case starts with a victim who suffered from certain developmental disabilities affecting his sight and mental acuity. These were established at a pretrial proceeding by psychiatric reports, and the victim’s difficulties were evident to the trial court through his over-all behavior on the stand, as also reflected by the contextual material recited in the majority opinion. After the victim failed to make an in-court identification of defendant-appellant as the person who committed the sodomy and other crimes, defense counsel moved in limine to preclude the arresting officer’s testimony to the victim’s earlier identification of the defendant on the ground that there had been no failure of recollection. The trial court denied that motion with the following ruling:

"the court: Counsel, I’m going to let the police officer testify and if you wish, when [the victim] gets back on the stand, before we go any further, I will have the witness walk around the courtroom and see if he can identify anyone, if he sees anybody that he recognizes.
"defense counsel: No, Judge.
"the court: You don’t? Okay. I notice the type of glasses he’s wearing. I don’t know if he can see that far, or if he didn’t look close enough, or if the District Attorney knows what questions to ask him.”

Taken in trial context, these explanations establish — as defendant-appellant concedes — that the court based its CPL 60.25 ruling on a finding that the complainant was either unable to follow the prosecutor’s instructions to look around the courtroom or was unable to see the defendant.

The next day, after the victim had left the stand, defense counsel moved to reargue the motion to prevent the officer’s testimony concerning the victim’s identification of the defendant. The court denied reargument. Defense counsel next moved for a mistrial on the basis of the denial of reargument, and that motion was denied. Finally, defense counsel moved to have his client released on his own recognizance owing to the failure of the victim to identify defendant as the perpetrator. In response to that motion, the court elaborated its findings on the victim’s failure to identify as follows:

"the court: As long as you made that application, the Court observed this infant stand up when the District Attorney asked him the question if he saw anybody in the courtroom that he recognized, or words to that effect, I don’t recall it. This child did not even look in the direction of the defendant. He looked to his left, to start with, then said no.
"defense counsel: Your Honor,—
"the court: Just a moment, because I didn’t interrupt you.
’’Then the District Attorney asked him to look again, and look around. So he looked half of the way, and I observed him closely, and he said no. I’m not sure whether or not he asked him, would you look around the courtroom. He hardly glanced in that direction, and he said, 'Nope.’ ”

The predicates established in this record and specifically relied upon by the trial court should justify the application of the remedial statute. The trial court found, in satisfactory and functional effect, that the victim suffered an inability "to state, on the basis of present recollection, whether or not the defendant is the person in question” (CPL 60.25 [1] [a] [iii]).

The trial court’s determination that the victim is unable to recognize the defendant, as a matter of foundation to allow the officer’s testimony in lieu of the victim’s, "must be accorded the same effect as a statement by the witness that he cannot now identify the defendant” (People v Cwikla, 46 NY2d 434, 444). Appellate courts might quarrel in reflective hindsight whether the offer of foundation proof could have been more ample or more particular and precise, or whether alternative means should have been tried before invoking the statutory authorization. However, an appellate court reviewing trial records should look to the entire context of the trial court’s ruling and the factual bases supporting it. In this case, the record contains sufficient evidence to support the necessary inferences for the trial court’s foundational conclusion that it was appropriate to invoke CPL 60.25.

The application of the guiding principles which lead to the overturning of this conviction falls prey, in my respectful view, to a form-over-substance second guess of the trial court. The analysis suffers from an overly strict, semantical parsing of the record and of the statute upon which the foundational evidentiary ruling rests. This Court’s ruling, rendered at a time and circumstance far removed from and lacking an appropriate deference to the trial court’s correct grasp of the sensitive trial dynamics in this particular instance, contradicts the customary and appropriately reasonable flexibility given trial courts in the exercise of prudent judgment in these foundational evidentiary contexts. Without sacrificing protections due to accuseds in these circumstances, trial courts are in a better position to weigh fairly and sensitively the competing concerns reflected by a record like this one.

In sum, erecting a highly formalized and stylized rubric is not warranted here. The irony is that this conviction would very likely be upheld if the People had asked this victim foundational questions slightly different in form or degree, or if the trial court had mouthed its ruling to echo the precise phraseology of the statute. Matters of such import as the admission of key evidence in felony prosecutions should not turn on formalistic, semantical nuances and variations. Rather, substance should govern at trial and on appellate review. Unfortunately, here substance does not prevail and an otherwise valid conviction is unravelled along with, precedentially, a realistic and proper use of a remedial statute designed to apply fairly in situations, just such as occurred here.

Acting Chief Judge Simons and Judges Kaye and Hancock, Jr., concur with Judge Smith; Judge Bellacosa dissents and votes to affirm in a separate opinion in which Judge Titone concurs.

Order reversed, etc.