text:
    Pharmaceutical Manufacturers Association et al., Appellants, v Robert P. Whalen, as Commissioner of Health, et al., Respondents. National Retired Teachers Association et al., Intervenors-Respondents.
    Argued November 19, 1981;
    decided December 22, 1981

      POINTS OF COUNSEL

      Martin I. Shelton, Joseph Ferraro and Mark E. Davidson for appellants.
    I. The lower court erred in refusing to allow plaintiffs to prove at trial that the factual assumptions underlying the statute are erroneous and that the statute is unconstitutional. (Borden’s Co. v Baldwin, 293 US 194; Society of Plastics Ind. v City of New York, 68 Misc 2d 366; Wolff Co. v Industrial Ct., 262 US 522; Chastleton Corp. v. Sinclair, 264 US 543; Williams v Rhodes, 393 US 23; Kramer v Union School Dist., 395 US 621; Salyer Land Co. v Tulare Water Dist., 410 US 719; Matter of Dart v Howell, 45 AD2d 47; Sonmax, Inc. v City of New York, 89 Misc 2d 945; Darweger v Staats, 267 NY 290.) II. In granting summary judgment, the lower court apparently ignored affidavits, documents and testimony which raise numerous issues of fact. (Esteve v Abad, 271 App Div 725; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Mobil Oil Corp. v Town of North Hempstead, 59 AD2d 551; Town of North Hempstead v Exxon Corp., 73 AD2d 377, 53 NY2d 746.) III. Plaintiffs’ claims with respect to the constitutionality of the statute are justiciable. (Jones v Beame, 45 NY2d 402; Merced Dredging Co. v Merced County, 67 F Supp 598; Standard Oil Co. v City of Gadsden, 263 F Supp 502; Matter of Jacobs, 98 NY 98; Fisher Co. v Woods, 187 NY 90; Colon v Lisk, 153 NY 188; Society of Plastics Ind. v City of New York, 68 Misc 2d 366; Berenson v Town of New Castle, 38 NY2d 102; RobertE. Kurzius, Inc. v Incorporated

      Vil. of Upper Brookville, 67 AD2d 70; Cross County Sav. & Loan Assn. v Siebert, 98 Misc 2d 283.) IV. The lower court erred in granting defendants’ motion to amend their answer to add limitations defenses. (Doroski v Mintler, 49 AD2d 990; Matter of Mangano v Hanna, 82 Misc 2d 1018; Matter of Temple Israel of Lawrence u Plaut, 10 Misc 2d 1084, 6 AD2d 886; Matter of Winter v Board of Assessors of County of Nassau, 63 Misc 2d 451; Coffin v President & Directors of Grand Rapids Hydraulic Co., 136 NY 655.) V. Defendants’ affirmative defenses are legally insufficient to warrant dismissal of plaintiffs’ constitutional claims. (Pharmaceutical Mfrs. Assn. v Kennedy, 471 F Supp 1224; Pharmaceutical Soc. of State of N. Y. v Lefkowitz, 586 F2d 953; Clark v Scovill, 198 NY 279; Rosenstiel v Rosenstiel, 43 Misc 2d 462; Matter of Crichton, 20 NY2d 124; Kahane v Murdoch, 218 App Div 591; United States v State of Texas, 430 F Supp 920.) VI. The lower court erred in failing to permit plaintiffs to obtain disclosure of facts essential to justify their opposition to defendants’ motion.

      Robert Abrams, Attorney-General (Shirley Adelson Siegel and Peter G. Crary of counsel), for respondents.
    I. The courts below were correct in holding the act a reasonable exercise of the State’s police power as a matter of law, since its legislative history discloses that prior to adoption of the act the Legislature considered and rejected the technical and scientific arguments plaintiffs seek to raise in this action; furthermore, analysis of the act, itself, establishes that its provisions are carefully designed to achieve its objective. (Nettleton Co. v Diamond, 27 NY2d 182; Wiggins v Town of Somers, 4 NY2d 215; Marcus Assoc. v Town of Huntington, 45 NY2d 501; Montgomery v Daniels, 38 NY2d 41; New York State Thruway Auth. v Ashley Motor Ct., 10 NY2d 151; Whitmier & Ferris Co. v State of New York, 20 NY2d 413; I.L.F.Y. Co. v Temporary State Housing Rent Comm., 10 NY2d 263; Lincoln Bldg. Assoc. v Barr, 1 NY2d 413; Defiance Milk Prods. Co. v Du Mond, 309 NY 537.) II. Dismissal of plaintiffs’ remaining causes of action challenging the act’s validity was correct, as a matter of law. (Pharmaceutical Soc. of State of N. Y. v Lefkowitz, 586 F2d 953; Ives Labs, v Darby Drug Co., 601 F2d 631; Philadelphia v New Jersey, 437 US 617; Pike v Bruce

      Church, 397 US 137; Zuckerman v City of New York, 49 NY2d 557; Whalen v Roe, 429 US 589; People v Onofre, 51 NY2d 476; Paul v Davis, 424 US 693.)

      Lawrence I. Brandes and Alfred Miller for intervenors-respondents.
    I. The law does not violate either the equal protection or due process clauses contained in the Fourteenth Amendment of the United States Constitution. (Royster Guano Co. v Virginia, 253 US 412; Pharmaceutical Soc. of State of N. Y. v Lefkowitz, 586 F2d 953; Nebbia v New York, 291 US 502.) II. Plaintiffs’ contention that the Federal Food and Drug Administration’s determination — that therapeutically equivalent drugs safely can be substituted for one another — is scientifically unsound is not justiciable. (Jones v Beame, 45 NY2d 402; Matter of Quinton A., 49 NY2d 328; Berenson v Town of New Castle, 38 NY2d 102.) III. The law is not an unconstitutional burden upon interstate commerce. IV. The law does not interfere with the patient’s right of privacy. (Pharmaceutical Soc. of State of N. Y. v Lefkowitz, 586 F2d 953.) V. The law does not infringe upon patents or trade-marks held by plaintiffs. (Pharmaceutical Soc. of State of N. Y. v Lefkowitz, 586 F2d 953.) VI. The court below properly denied plaintiffs’ application to depose FDA. (Pharmaceutical Mfrs. Assn. v Kennedy, 471 F Supp 1224.)

      Lewis B. Oliver, Jr., for New York Public Interest Research Group, intervenor.
    I. The generic drug law providing for substitution of less expensive generic drugs for brand name products is presumed constitutional, and appellants fail to state a ground upon which relief may be granted. (Dutchess County Pharm. Soc. v State of New York, 47 AD2d 627, 38 NY2d 887; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; A&P Tea Co. v Cottrell, 424 US 366; Montgomery v Daniels, 38 NY2d 41; People v Broadie, 37 NY2d 100; Matter of Taylor v Sise, 33 NY2d 357; I.L.F.Y. Co. v Temporary State Housing Rent Comm., 10 NY2d 263, 369 US 795; Noyes v Erie & Wyo. Farmers Co-op. Corp., 281 NY 187; Pharmaceutical Soc. of State of N.Y. v Lefkowitz, 586 F2d 953; Jones v Beame, 45 NY2d 402.) II. Appellant’s alleged constitutional claims are completely without merit. (Pharmaceutical Soc. of State of N. Y. v Lefkowitz, 586 F2d 953; Dutch

      ess County Pharm. Soc. v State of New York, 47 AD2d 627, 38 NY2d 887; Pike v Bruce Church, 397 US 137; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; A&P Tea Co. v Cottrell, 424 US 366; Warth v Seldin, 422 US 490.) III. The court below was correct to grant defendants leave to amend the answer to assert that the third and fourth causes of action are untimely pursuant to subdivision 7 of section 202 of the State Administrative Procedure Act and CPLR 217, which was alleged in the third affirmative defense of the intervenor-defendant. (Matter of Hans v Burns, 48 AD2d 947; Matter of Temple Israel of Lawrence v Plaut, 10 Misc 2d 1084; Matter of Winter v Board of Assessors of County of Nassau, 63 Misc 2d 451.) IV. The court below was correct to deny appellants’ application to proceed with depositions of Federal Food and Drug Administration officials in Maryland, because a favorable decision would interpret the complaint in such a manner as to sustain the second cause of action (equal protection). A favorable decision on discovery would be the law of the case and would affect a substantial right of the State and interveners. (Pharmaceutical Mfrs. Assn. v Kennedy, 471 F Supp 1224.)
   OPINION OF THE COURT

Jasen, J.

In this declaratory judgment action, plaintiffs — manufacturers of brand name drugs, a trade association comprised of such manufacturers, and an association of pharmacists — attack the constitutionality of the “Generic Drug Substitution Law”. (L 1977, ch 776.) In our view, the “Generic Drug Substitution Law” is a reasonable exercise of the State’s police power and is rationally related to the legitimate purpose of safely reducing health care costs. We hold that the challenged law is constitutional and, therefore, affirm the order of the Appellate Division.

Disturbed by the ever increasing cost of prescription drugs, this State adopted the “Generic Drug Substitution Law” (the Law) in 1977 (L 1977, ch 776). Prior to the enactment of the Law, pharmacists were prohibited from “substituting] or dispensing] a different article for or in lieu of any article prescribed, ordered or demanded”. (Education Law, former § 6816, subd 1.) Besides creating an exception to this antisubstitution provision for generic drugs, the new law added section 206 (subd 1, par [o]) to the Public Health Law and sections 6810 (subd 6) and 6816-a to the Education Law. Under section 206 (subd 1, par [o]) of the Public Health Law, the New York State Commissioner of Health is required to promulgate a list of drug products which have been certified or approved by the Federal Food and Drug Administration (FDA) as being safe and effective for their indicated uses and for which there is no question of satisfying bioequivalency requirements. Following extensive consultation with the FDA, the Department of Health published its list of therapeutically equivalent drug products in March, 1978. (See 10 NYCRR Subpart 60-2.)

Subdivision 6 of section 6810 of the Education Law provides that every prescription form used in this State shall contain two signature lines, one stating “substitution permissible” and the other stating “dispense as written”. If the physician signs the “substitution permissible” line, then he must “inform the patient that the pharmacist will substitute a drug product” which appears on the Department of Health’s list of generic substitutes. This section also provides that on each prescription form the following words must be conspicuously imprinted: “This prescription will be filled generically unless physician signs on line stating ‘dispense as written’.” (Education Law, § 6810, subd 6, par [a].)

Under section 6816-a of the Education Law, a pharmacist is required to “substitute a less expensive drug product containing the same active ingredients, dosage form and strength as the drug product prescribed” if the physician signs the “substitution permissible” line and the substituted drug product appears on the Department of Health’s list. Finally, the pharmacist is required, in the event of substitution, to indicate on the label affixed to the immediate container in which the generic drug is dispensed the name and strength of the drug product and its manufacturer.

In their complaint, plaintiffs set forth seven causes of action. The first cause of action alleges that the Law promotes unfair competition and the infringement of drug patents and trade-marks held by plaintiffs. The second cause of action alleges that the Law unlawfully discriminates against brand name drug products by creating defenses to claims for unfair competition and patent and trade-mark infringement. The third and fourth causes of action allege that defendants, in implementing the new law, failed to comply with the State Administrative Procedure Act and exceeded their statutory authority by including certain drugs on the Department of Health’s substitution list which do not qualify. The fifth cause of action alleges that the Law imposes an unnecessary burden on interstate commerce. The sixth cause of action alleges that, by interfering with medical relationships between pharmacists and patients and by restricting the patients’ right to make health-related decisions respecting the choice of drug products, the Law abridges the so-called “right to privacy between pharmacist and patient.” Finally, in their seventh cause of action, plaintiffs allege that the Law deprives them of liberty and property without due process of law.

Special Term, inter alia, granted defendants’ motion for summary judgment to the extent of declaring the Law constitutional and dismissing plaintiffs’ first, second, fifth, sixth and seventh causes of action. The third and fourth causes of action were expressly severed and continued as article 78 proceedings. According to Special Term, “[pjlaintiffs have failed to meet the heavy burden imposed on a party who seeks to overcome the strong presumption of constitutionality inherent in every statute enacted by the Legislature.” The Appellate Division unanimously affirmed, without opinion, and plaintiffs brought this appeal as of right on constitutional grounds. (CPLR 5601, subd [b], par 1.)

In this court, plaintiffs assert that the courts below erred in granting summary judgment upholding the constitutionality of the “Generic Drug Substitution Law”. Although plaintiffs concede that this State has a legitimate interest in providing safe and effective drugs to its citizens at the lowest possible price, they assert that the Law is not rationally related to the attainment of this objective. Specifically, plaintiffs contend that the factual assumption underlying the Law — that generic drug products approved by the FDA are therapeutically equivalent to and may be safely substituted for their brand name counterparts — is not based on competent pharmacological and medical data and, therefore, that the Law is an unreasonable exercise of the police power. According to plaintiffs, the Legislature failed to make any independent findings concerning the therapeutic equivalence, safety and efficacy of generic drugs and, instead, unreasonably adopted the FDA’s findings as to drug product substitution. Relying on various affidavits, scientific studies, documentary evidence and the opinion of their own pharmacological expert, plaintiffs assert that questions of fact exist as to the therapeutic equivalence and safety of drug products on the Department of Health’s substitution list which must be developed at trial. We find all of plaintiffs’ contentions to be without merit.

The principles of law applicable to the facts of this case are by now well established. Where a police power enactment is challenged on due process grounds, the test is whether there is “ ‘some fair, just and reasonable connection’ between it and the promotion of the health, comfort, safety and welfare of society.” (Montgomery v Daniels, 38 NY2d 41, 54.) Moreover, every legislative enactment enjoys a strong presumption of constitutionality which, although rebuttable, requires the challenging party to demonstrate that the enactment is unconstitutional beyond a reasonable doubt. (See, e.g., Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 344; Town of Huntington v Park Shore County Day Camp of Dix Hills, 47 NY2d 61, 65; Montgomery v Daniels, supra.)

The parties agree that the standard of review applicable to this case is the familiar “rational basis” test, and, as noted earlier, plaintiffs concede that safely providing prescription drugs at a reduced price is a legitimate State objective. The only question that remains is whether the “Generic Drug Substitution Law” is rationally related to the achievement of that purpose.

Contrary to plaintiffs’ assertion, the Legislature did not act in a frivolous manner in enacting the Law. In the months preceding its adoption, numerous hearings were held at which the question of therapeutic equivalence was extensively debated. Detailed evidence for and against the Law, including some of the exact proof relied on by plaintiffs in this case, was submitted to the Legislature. In the end, the Legislature obviously determined that “[ajllegations that generic drugs are not as safe and effective as brand name drugs have been disproved by an accumulation of evidence.” (NY Legis Ann, 1977, p 259.) To now allow plaintiffs to relitigate, in the guise of a constitutional challenge, the very same factual determination made by the Legislature as to the therapeutic equivalence of generic drugs would be most inappropriate. Indeed, “it would be a demonstration of judicial arrogation and highly inept and inapt to express any opinion as to the factual predicate for this legislation”. (Montgomery v Daniels, 38 NY2d 41, 53, supra.) The bare existence of conflicting empirical proof on the issue whether generic drugs may or may not be safely substituted for their brand name counterparts is insufficient to raise any real question as to the Law’s constitutionality; nor may plaintiffs “procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken.” (Minnesota v Clover Leaf Creamery Co., 449 US 456, 464; cf. Town of North Hempstead v Exxon Corp., 53 NY2d 747.)

Similarly, we cannot say that the Legislature acted unreasonably in directing the Department of Health to rely on, although not to defer to, the FDA’s specific findings of therapeutically equivalent drug products in compiling New York’s list of permissible generic substitutes. The FDA is given the responsibility of assuring the supply of safe and effective drugs on a national level. (See US Code, tit 21, § 355.) This Federal agency has both superior expertise and extensive resources at its disposal, and the test it employs in certifying drugs as safe and effective is truly “a rigorous one”. (Weinberger v Hynson, Wescott & Dunning, 412 US 609, 630.) Plaintiffs’ contention that the Legislature must conduct de novo an independent investigation into the therapeutic equivalence of each drug placed on the Department of Health’s list of substitutes is supported neither by sound principles of constitutional law nor common sense. If plaintiffs entertain definite fears as to the safety of particular drugs found on the list of substitutes, then they should provide the Department of Health with this information. Instead, they have launched this broadsided attack on the constitutional validity of the Law.

Plaintiffs’ remaining contentions require only a brief discussion. The “Generic Drug Substitution Law” does not promote unfair competition or the infringement of drug patents and trade-marks; nor does the Law create any defenses to such claims. In order to comply with the Law, a pharmacist is not required to stock or sell an infringing generic substitute, and, as noted by Special Term, plaintiffs’ rights and remedies under the patent and trade-mark laws are the same now as they were prior to the passage of the Law. In this regard, it is also worth noting that an official from the Department of Health testified that the list of substitutes would be revised to reflect the judicial resolution of any patent or trade-mark dispute involving drug products.

Nor are we persuaded by plaintiffs’ commerce clause claim. The Law does not discriminate between in-State and out-of-State manufacturers and, as discussed earlier, it serves a legitimate State interest by providing New York patients with the benefits of low-priced medication. Plaintiffs have come forth with no showing that “the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” (Pike v Bruce Church, 397 US 137,142.) Absent something more definite than plaintiffs’ bare allegation that the Law imposes an unnecessary burden on interstate commerce, the constitutionality of the Law should be sustained. (Accord Pharmaceutical Soc. of State of N. Y. v Lefkowitz, 586 F2d 953, 957-958; compare Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, with. Dutchess Sanitation Serv. v Town of Plattekill, 51 NY2d 670.)

Finally, the Law suffers no constitutional infirmity by reason of abridging some ephemeral “right to privacy between pharmacist and patient.” In the first place, it is doubtful whether any such right exists, and plaintiffs have cited no authority to support the proposition that it does. True, the Supreme Court has recognized a constitutional “interest in independence in making certain kinds of important decisions” (Whalen v Roe, 429 US 589, 599-600), including a patient’s “right to decide independently, with the advice of his physician, to acquire and use needed medication” (Whalen v Roe, supra, at p 603). Even though the “ ‘outer limits’ of the decision-making aspect of the right to privacy ‘have not been marked by the Court’” (People v Onofre, 51 NY2d 476, 486, quoting Carey v Population Servs. Int., 431 US 678, 684-685), the right to privacy typically has been held to encompass only “matters relating to marriage, procreation, contraception, family relationships, and child rearing and education.” (Paul v Davis, 424 US 693, 713.)

In any event, assuming the existence of such a right to privacy, it is not violated by the “Generic Drug Substitution Law”. As licensed health professionals, pharmacists are subject to the State’s “broad police powers in regulating the administration of drugs.” (Whalen v Roe, supra, at p 603, n 30 [and cases cited therein].) As to the patient’s right to privacy, aside from the obvious difficulty with plaintiffs’ standing to assert this right, we are in agreement with the views expressed by the Second Circuit, which addressed a similar claim: “The decision to use a brand name or generic drug, and which brand name to use, remains as before with the doctor and the patient; the provisions of the Generic Drug Act only come into play after their initial choice (usually that of the doctor) has been made between ‘dispense as written’ and ‘substitution permissible’. Here, as under prior law, there is no deprivation of the right of the patient, with the advice of his or her doctor, to decide on the proper medication.” (Pharmaceutical Soc. of State of N. Y. v Lefkowitz, 586 F2d 953, 958, supra [emphasis in original].) Indeed, as defendants note, by providing the patient with information concerning less expensive drug substitutes, the Law has the beneficial effect of broadening the patient’s choice in terms of needed medication.

In sum, the “Generic Drug Substitution Law” does not promote unfair competition or patent or trade-mark infringement; nor is the Law violative of due process, the commerce clause, or the so-called patient-pharmacist “right to privacy”. The Law merely facilitates the exercise of the physician’s responsibility to determine whether and under what circumstances generic drugs are to be prescribed.

For all these reasons, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed.

      . In Governor Carey’s memorandum approving the Law, the following observations were made: “Every year American consumers spend roughly $8 billion on drugs. Prescription drugs are not a luxury; for many people, particularly the elderly, they are a life-sustaining necessity. Yet, consumers are forced to purchase the more expensive brand name drugs because most physicians choose to prescribe by brand name; and pharmacists are prohibited by law from substituting equivalent but less expensive generic drugs.” (NY Legis Ann, 1977, p 259.)

      . By a subsequent judgment, Special Term also dismissed plaintiffs’ third and fourth causes of action as being barred by the four-month Statute of Limitations applicable to article 78 proceedings. (See CPLR 217.) As a result of Special Term’s severance of these claims from the remaining causes of action, the propriety of this subsequent dismissal on Statute of Limitations grounds is not before us on this appeal.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Frank Ferrara, Appellant.
    Argued November 17, 1981;
    decided December 22, 1981

      POINTS OF COUNSEL

      Richard C. Cohn and Joseph H. Wishod for appellant.
    I. The trial court’s failure to suppress evidence of the Sreter conversations impels a reversal of the conviction. The conversations abridged appellant’s right to counsel under the Fifth and Sixth Amendments of the United States Constitution and under section 6 of article I of the New York Constitution. (Escobedo v Illinois, 378 US 478; Hamilton v Alabama, 368 US 52; People v Donovan, 13 NY2d 148; People v Friedlander, 16 NY2d 248; People v Gursey, 22 NY2d 224; People v Cooper, 307 NY 253; People v Waterman, 9 NY2d 561; People v Meyer, 11 NY2d 162;
      People v Rodriguez, 11 NY2d 279; People v Sanchez, 15 NY2d 387; People v Hobson, 39 NY2d 479.) II. Either the tapes should have been summarily suppressed or a plenary suppression hearing should have been directed. No such hearing was held and the question of suppression was never even considered. (People v Lombardi, 18 AD2d 177; People v Del Giorno, 19 AD2d 849; People v McCoy, 27 AD2d 858, 21 NY2d 730; People v Williams, 46 AD2d 727; People v Werner, 55 AD2d 317; People v Harris, 68 Misc 2d 1089; United States v Laughlin, 223 F Supp 623; Massiah v United States, 377 US 201; People v Squitieri, 49 AD2d 374; Carroll v United States, 16 F2d 951.) III. The indictment must be dismissed by reason of extreme prosecutorial misconduct. (People v Savvides, 1 NY2d 554; People v Fielding, 158 NY 542; People v Tassiello, 300 NY 425; People v Williams, 292 NY 297; People v Davis, 57 AD2d 1013; People v Alberga, 57 AD2d 755; United States ex rel. Vanderhorst v La Vallee, 417 F2d 411; United States v Basurto, 497 F2d 781; United States v Alberanga-Salazar, 360 F Supp 1221; Greene v United States, 454 F2d 783.) IV. The record neither establishes materiality of the questions nor their precision sufficient to support a perjury conviction. Furthermore, prosecutor’s principal motivation in recalling appellant was to set a perjury trap and to secure a perjury indictment against him. Thus, the indictment must be dismissed. (Bronston v United States, 409 US 352; United States v Razzaia, 370 F Supp 577; United States v Esposito, 358 F Supp 1032, 414 US 1135; Brown v United States, 245 F2d 549; Galanos v United States, 49 F2d 898; United States v Colbert, 227 F Supp 915; United States v Slutzky, 79 F2d 504; United States v Wall, 371 F2d 398; People v Tyler, 46 NY2d 251; People v Samuels, 284 NY 410.) V. The trial court erred in permitting Sreter to invoke the Fifth Amendment; in unduly restricting cross-examination of Sreter; in refusing to allow the defense to call Miller as a witness; and in failing to submit the perjury trap question to the jury. Such rulings violated appellant’s Sixth Amendment and Fourteenth Amendment rights and deprived him of a fair trial. (Davis v Alaska, 415 US 308; Douglas v Alabama, 380 US 415; Montgomery v United States, 203 F2d 887; United States v

      Masino, 275 F2d 129; United States v Stephens, 492 F2d 1367; People v McConnell, 49 NY2d 340; People v Torre, 33 AD2d 43; Hank v Codd, 424 F Supp 1086; Uniformed Sanitation Men Assn. v Commissioner of Sanitation of City of N. Y., 426 F2d 619; Rogers v United States, 340 US 367.) VI. There was no corroboration of Sreter’s testimony required to support the conviction. (People v Cona, 49 NY2d 26; People v Sabella, 35 NY2d 158; People v Siegel, 282 App Div 747; People v Harrell, 282 App Div 1051.) VII. The conduct of the prosecutors and the rulings below deprived appellant of due process under the Fourteenth Amendment. (United States v Thayer, 214 F Supp 929.)

      Edward J. Kuriansky, Deputy Attorney-General (Richard D. Carruthers and Arthur G. Weinstein of counsel), for respondent.
    I. The evidence at trial proved beyond a reasonable doubt that Ferrara repeatedly lied to the Grand Jury and, further, that his lies were material to the Grand Jury’s investigation. (People v Pomerantz, 46 NY2d 240; People v Clemente, 285 App Div 258, 309 NY 890; People v Ianniello, 36 NY2d 137; People v Dunleavy, 41 AD2d 717, 33 NY2d 573; United States v Carson, 464 F2d 424; United States v Lococo, 450 F2d 1196; United States v Stone, 429 F2d 138; People v Cona, 49 NY2d 26; People v Morhouse, 21 NY2d 66.) II. Ferrara was treated fairly during all phases of the investigation. His perjury trap claim is utterly meritless. (People v Pomerantz, 46 NY2d 240; United States v Chevoor, 526 F2d 178, 425 US 935; Matter of Wood, 430 F Supp 41; People v Tyler, 46 NY2d 251; People v Davis, 53 NY2d 164.) III. As the trial court found, the prosecutor did not deceive Ferrara’s attorney about the existence of the tape recordings. The facts proved that the allegations made by Ferrara’s lawyer concerning the prosecutor’s conduct were false. (People v Einhorn, 35 NY2d 948; People v De Tore, 34 NY2d 199; People v Pomerantz, 46 NY2d 240; United States v Del Toro, 513 F2d 656, 423 US 826; United States v Winter, 348 F2d 204, 382 US 955; People v Breindel, 73 Misc 2d 734, 45 AD2d 691, 35 NY2d 928; People v Lev, 91 Misc 2d 241; People v Davis, 53 NY2d 164.) IV. The right to counsel does not attach at the point when an individual plans a crime or solicits another to participate in a criminal venture. Thus, Ferrara’s right to counsel was not violated when the prosecutor recorded his repeated attempts to involve Sreter in a kickback scheme. (People v Hobson, 39 NY2d 479; People v Rogers, 48 NY2d 167; People v Skinner, 52 NY2d 24; People v Settles, 46 NY2d 154; People v Kazmarick, 52 NY2d 322; People v Clark, 41 NY2d 612; People v Seligman, 55 Misc 2d 47; Hurst v United States, 370 F2d 161; United States v Edwards, 366 F2d 853; United States v Poeta, 455 F2d 117, 406 US 948.) V. None of Ferrara’s complaints about the Trial Judge’s rulings has any merit. Indeed, the court’s rulings permitted the trial to be conducted fairly. (People ex rel. Taylor v Forbes, 143 NY 219; United States v Aiken, 373 F2d 294; United States v Irwin, 354 F2d 192; United States v Kahn, 366 F2d 259; United States v Owens, 263 F2d 720; People v Jackson, 94 Misc 2d 33; People v Kirchhoff, 68 AD2d 917, 46 NY2d 1081; People v Fischer, 53 NY2d 178; People v Ianniello, 36 NY2d 137.)
   OPINION OF THE COURT

Chief Judge Cooke.

This case presents the question whether defendant’s right to counsel was violated when, after defendant retained counsel in connection with his appearances before a Grand Jury investigating fraud in the nursing home industry, the prosecutor arranged to record defendant’s conversations with a nursing home operator during which defendant offered a kickback. In the circumstances of this case, no such violation occurred. The order of the Appellate Division, sustaining the conviction for three counts of perjury in the first degree, should therefore be affirmed.

Defendant and his partner, Ben Solomon, owned Oceanside Institutional Industries, Inc., a laundry and linen supply company they founded in 1974 that serviced a number of Long Island nursing homes and health-related facilities. In early 1976, the office of the Special Prosecutor, appointed to investigate abuses in the operation of nursing homes and related industries, obtained information indicating that defendant had paid kickbacks at least to the owner-operator of the Parkview Nursing Home in an effort to obtain that facility’s business for Oceanside. Defendant was called before a Nassau County Grand Jury on March 23, 1976, where he appeared without counsel but with a grant of immunity. During relatively brief questioning, defendant denied being a party to any kickback arrangement with Parkview.

In April, 1977, defendant again was subpoenaed to appear before a Grand Jury, shortly before which he retained attorney Morris Cohen to represent him. Cohen informed Special Assistant Attorney-General Richard Miller that he represented defendant and that communications with defendant were to be made through him. At this time, the prosecutor possessed the testimony of Parkview’s administrator that defendant had been paying kickbacks to that home’s operator. Armed with this information, Miller informed both defendant and Cohen prior to questioning that he believed defendant had perjured himself during his first Grand Jury appearance. Again with a grant of immunity, defendant responded to the prosecutor’s more extensive questioning with denials of kickback payments to any nursing home or any knowledge about the practice.

In June, 1977, the prosecutor learned that General Diaper Service, Inc., defendant’s former employer, regularly paid kickbacks to obtain or retain nursing home customers for its linen supply business. The information about General Diaper also indicated that defendant, responsible for the company’s day-to-day operations, would know which homes had been parties to a kickback scheme. At this point, the prosecutor possessed sufficient evidence to support an indictment against defendant for perjury during his second Grand Jury appearance.

During this same period, Alex Sreter, the operator of two nursing homes, contacted the Attorney-General’s office in the hope of obtaining a favorable disposition of criminal charges he was aware were about to be brought against him and his mother arising out of their operation of the nursing homes. Sreter provided information about corrupt practices in the health care industry and eventually entered into a written plea agreement under which he agreed to co-operate further and to make restitution for money wrongfully obtained from the Medicaid program in exchange for a plea of guilty to income tax evasion, a misdemeaner, in satisfaction of the grand larceny charges that were to be brought and a report to the court of his cooperation.

Sreter became a key figure in this case when he informed the prosecutor that defendant’s company, Oceanside, had been servicing Nassau Nursing Home for the nine months prior to Sreter’s decision to co-operate. Sreter had neither demanded nor received kickbacks from Oceanside, but had heard that defendant’s partner, Solomon, made such arrangements with others. Shortly after Sreter’s offer to cooperate, Solomon called him to discuss the possibility of Oceanside servicing Sreter’s other home, the Van Doren Nursing Home. They agreed to meet on July 11, 1977. Sreter reported the upcoming meeting to the prosecutor’s office and consented to be equipped with a recording device for this and subsequent meetings.

Defendant accompanied Solomon to the July 11 meeting at which both sought to obtain the Van Doren business. Offers from competitors were discussed in general terms. Defendant and Solomon offered low prices as an inducement to Sreter, who responded that price was not everything in the other offers received. The parties agreed to continue the discussion in the future.

During subsequent meetings between defendant and Sreter only, which also were recorded, defendant offered cash kickbacks for the Van Doren account and explained his method of arranging the payments. In an attempt to overcome Sreter’s apparent reluctance to accept such an arrangement because of the extensive State investigations, defendant assured Sreter that the illicit transaction would not be revealed to prosecutors, that defendant had had similar deals with only a small number of other operators, and that such deals would continue to be part of the health care industry despite law enforcement efforts. Defendant made clear that he was very careful, would never get caught and would never reveal the other parties to an arrangement. Sreter finally refused the kickback offer and declined to give Oceanside the Van Doren business. He also terminated the Nassau account. The last conversation took place on October 13, 1977.

Meanwhile, the prosecutor had decided not to indict defendant for perjury for his April, 1977 testimony before the Grand Jury, but to give him an opportunity to testify truthfully and aid the investigation of industry abuses. To that end, defendant was subpoenaed to appear before a third Grand Jury, which he did on October 17, 1977. Defendant was not advised that his conversations with Sreter had been recorded. Again informed of the nature of the Grand Jury inquiry and with a grant of immunity, defendant was asked numerous questions concerning kickback deals in the industry involving Oceanside and General Diaper and whether he had ever offered or discussed kickback arrangements with named individuals, including Sreter. Once again, defendant denied personally knowing of any such deals in the industry or ever having offered a kickback.

Based on his responses, defendant was indicted on four counts of perjury. Counts one, two and four related to questions based upon the recorded Sreter conversations; count three related to defendant’s testimony concerning the kickback practices of his former employer, General Diaper. Defendant unsuccessfully moved before trial for dismissal of the indictment and suppression of the Sreter conversations, among other things. After a jury trial, defendant was acquitted of count three but found guilty on the other counts. Following affirmance of his conviction by the Appellate Division, defendant was granted leave to appeal to this court.

Defendant raises numerous arguments in support of reversal. Of primary note is defendant’s broad assertion that the Sreter tapes should have been suppressed because the prosecutor violated his right to counsel by arranging to record the conversations. The question, however, may be better framed as whether retention of counsel in connection with a Grand Jury inquiry precludes investigative techniques that elicit in a noncustodial setting not a confession, but a plan to commit a new crime of the type then under scrutiny. Contrary to defendant’s assertion, neither the State nor Federal right to have the presence of counsel during police encounters include the right to have counsel present when a criminal enterprise is being planned or executed. Nor can it be used to insulate an immunized Grand Jury witness from prosecution for perjury founded upon statements made during that criminal activity.

Defendant’s argument that provisions of the United States Constitution require suppression of the Sreter conversations is unpersuasive. Indeed, inasmuch as no charges had been filed against defendant and he was not subjected to custodial interrogation, defendant had no constitutional right to be represented by counsel (see Kirby v Illinois, 406 US 682; Rhode Is. v Innis, 446 US 291; Miranda v Arizona, 384 US 436). Defendant’s reliance on Massiah v United States (377 US 201) is wholly misplaced. There, it is true, the Supreme Court ruled that admissions obtained through the use of an informant following indictment, in a noncustodial setting, violated the defendant’s Sixth Amendment right to counsel. Massiah was recently reaffirmed in United States v Henry (447 US 264) where postindictment admissions to an informant-fellow prisoner were found to have violated the constitutional guarantee.

The critical circumstance in both Massiah and Henry, for present purposes, was that the admissions obtained through prosecutorial agents were used as evidence to convict the defendants of prior crimes for which they had already been indicted at the time the admissions were elicited. Here, in contrast, the perjury of which defendant has been convicted had not yet occurred; of course no charges with respect thereto had yet been filed, and the authorities could have been under no constitutional obligation to commence proceedings at that time (see Hoffa v United States, 385 US 293, 310). Use of undercover operatives to investigate criminal activity of a suspect prior to commission of the particular crime of which the suspect is subsequently charged simply does not violate the Sixth Amendment guarantee (see United States v Henry, 447 US 264, 272, supra; Hoffa v United States, 385 US 293, supra; see, also, United States v Kenny, 645 F2d 1323, 1338; United States v Sikora, 635 F2d 1175, cert den 449 US 993; United States v Zazzara, 626 F2d 135, 138).

Nor do any decisions of this court support the novel theory advanced by defendant. This State’s right to counsel has developed out of concern and respect for the right of one accused of criminal conduct to place an advocate between himself and the vast law enforcement resources of the State (People v Skinner, 52 NY2d 24; People v Cunningham, 49 NY2d 203; People v Rogers, 48 NY2d 167; People v Hobson, 39 NY2d 479).

To that end, this court has recognized that in certain instances the right to counsel may be said to have indelibly attached; an uncounseled waiver of counsel will be ineffective. Thus, actual representation on a pending charge renders interrogation about that charge improper in the absence of a waiver of counsel in the presence of an attorney (People v Hobson, 39 NY2d 479, supra). That prohibition applies as well upon commencement of formal criminal proceedings (People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154), or after there has been a request for the assistance of counsel during custodial interrogation (People v Cunningham, 49 NY2d 203, supra). And where an individual is actually represented on a pending charge, custodial interrogation concerning unrelated criminality is proscribed where the police know of that representation (People v Rogers, 48 NY2d 167, supra) or know of the pending charge (People v Smith, 54 NY2d 954; People v Bartolomeo, 53 NY2d 225). Only recently, in People v Skinner (52 NY2d 24, supra), this court took the further step of prohibiting interrogation in a precommencement, noncustodial setting after counsel retained specifically on the matter under investigation had instructed the police not to question the defendant in the attorney’s absence.

Defendant argues that Skinner compels suppression of his statements during the Sreter conversations. We disagree. The defendant in Skinner was suspected of murder and had been contacted repeatedly by police investigating the crime. He had retained counsel in response and thereby “unequivocally indicated that he felt himself unable to deal with the authorities without legal assistance” (id., at p 32). The subsequent questioning by the police in the absence of counsel required suppression of the resulting confession. In the circumstances there presented, whether the criminal action had been formally commenced or whether the defendant had been interrogated in a custodial setting could not be considered controlling. Critical was that the defendant was represented on the very matter about which he was questioned, a past crime.

Nothing in Skinner suggests that the content of the recorded conversations here is protected by this State’s right to counsel. It is true that defendant, to the prosecutor’s knowledge, retained counsel in connection with his Grand Jury appearances and that counsel admonished against direct contact between the prosecutor and defendant. Defendant’^ argument might be persuasive if the recorded conversations had revealed only defendant’s submission to a bald attempt by Sreter to obtain incriminating evidence of defendant’s prior criminal dealings. But that was not the case. The first meeting was arranged for business reasons and was a product of Solomon’s initiative, not Sreter’s. And it was defendant who offered to pay Sreter illegal kickbacks in an effort to obtain his business. During the solicitation of this new crime and in his attempt to bring it to fruition, defendant himself revealed his previous kickback activities. That he unwittingly made the illegal offer to a person acting on behalf of the government is a risk defendant undertook at the outset. This State’s right to counsel neither could reduce that risk nor give defendant a license to commit perjury before the Grand Jury.

The right to counsel is a shield against what may well be the coercive influences of the State. The rule’s salutary function cannot be distorted to immunize one represented by an attorney against investigative techniques that capture a new crime in progress (see People v Clark, 41 NY2d 612). Defendant, however, would do just that and have this court recognize, in effect, a right to the presence of counsel while an individual commits, plans or solicits the commission of a new crime merely because the individual has retained counsel during the investigation of earlier criminality. We decline to do so (cf. People v Middleton, 54 NY2d 474 [decided herewith]) and thus conclude that there was no error in the denial of defendant’s motion to suppress the conversations.

Defendant’s remaining contentions have been examined and those preserved for review are found to be without merit.

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

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

Order affirmed.

       The Skinner court relied on People v Townes (41 NY2d 97) and People v Roberson (41 NY2d 106) in each of which the right to counsel had been abridged when the State used at trial incriminating statements made by the defendant, in the absence of assigned counsel, to a member of a civilian complaint review board during the latter’s investigation of claimed misconduct by the arresting officer.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Charles W. Geaslen, Appellant.
    Argued November 20, 1981;
    decided December 23, 1981

      POINTS OF COUNSEL

      John J. Brunetti, George T. Dunn and Gerald T. Barth for appellant.
    I. The trial court so unreasonably restricted the scope of the identification hearing as to prevent appellant from presenting the full totality of the circumstances, thereby depriving him of due process of law. (Manson u

      Brathwaite, 432 US 98; Neil v Biggers, 409 US 188; Goldberg v Kelly, 397 US 254; United States v Wade, 388 US 218; United States v Ash, 413 US 300; People v Misuis, 47 NY2d 979; Hill v United States, 418 F2d 449; Chapman v California, 386 US 18.) II. The trial court erred in admitting into evidence a knife and a T-shirt seized by parole officers without a search warrant and without probable cause. (Bumper v North Carolina, 391 US 543; People v Whitehurst, 25 NY2d 389; Schneckloth v Bustamonte, 412 US 218; Miranda v Arizona, 384 US 436; United States v Watson, 423 US 411; People v Huntley, 43 NY2d 175; People v Payton, 51 NY2d 169; Terry v Ohio, 392 US 1; Byars v United States, 273 US 28; People v Jackson, 46 NY2d 171.) III. The failure of the prosecution to provide defense counsel with a copy of Officer Fred Wheeler’s Grand Jury testimony prior to the pretrial hearings denied appellant due process of law. (People v Berrios, 28 NY2d 361; Giglio v United States, 405 US 150; Santobello v New York, 404 US 257; People v Fein, 18 NY2d 162.) IV. The trial court erred in allowing the introduction of hearsay testimony to improperly bolster the identification of appellant by the only eyewitness to the case. (People v Trowbridge, 305 NY 471; People v Caserta, 19 NY2d 18; People v Michael J., 54 AD2d 655; People v Oliver, 4 AD2d 28; People v Otero, 45 AD2d 954; People v Altintop, 13 AD2d 508; People v De Jesus, 11 AD2d 711; People v Le Van, 270 App Div 678; People v Willis, 49 AD2d 558; People v Napoletano, 58 AD2d 83.) V. The sentencing court erred in adjudicating appellant a persistent felon by failing to adjudicate all claims upon which the constitutional validity of a conviction was controverted and by failing to apply the reasonable doubt standard. (People v Hubbard, 71 AD2d 924; People v Rivera, 39 NY2d 519; People v Lynn, 28 NY2d 196; People v Melton, 35 NY2d 327; People v Spencer, 32 NY2d 446; Blackledge v Allison, 431 US 63.) VI. The prosecution failed to establish by either direct or circumstantial evidence an essential element of counts one and two of the indictment charging burglary in the second degree, namely, the pre-existing intent to commit a crime. (People v Henderson, 49 AD2d 978; People v Terry, 43 AD2d 875; People v Boettcher, 20 AD2d 801; People v Hamilton,
      18 AD2d 871.) VII. The trial court erred in denying appellant’s motion for a trial order of dismissal on count nine of the indictment charging unlawful imprisonment in the second degree as such offense was merged into the higher grade crime. (People v Miles, 23 NY2d 527; People v Levy, 15 NY2d 159; People v Cassidy, 40 NY2d 763.)

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Gail N. Uebelhoer of counsel), for respondent.
    I. The photographic identification procedures were not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. (United States v Wade, 388 US 218; People v Sutton, 47 AD2d 455; People v Ocasio, 47 NY2d 55; People v Travison, 46 NY2d 758, 441 US 949; People v Misuis, 47 NY2d 979; Hill v United States, 418 F2d 449; People v Anthony P., 72 AD2d 525; People v Gruttola, 43 NY2d 116; People v Rosario, 9 NY2d 286.) II. The search of appellant’s motel room was proper in all respects. (People v Huntley, 43 NY2d 175; People v Fortunato, 50 AD2d 38; People v Mackie, 77 AD2d 778; People v Jackson, 46 NY2d 171; People v Adler, 50 NY2d 730.) III. The prosecution was under no obligation to provide unrelated Grand Jury testimony prior to trial. (People v Fuentes, 74 AD2d 753, 53 NY2d 892; People v Consolazio, 40 NY2d 446, 433 US 914; People v Baker, 75 AD2d 966.) IV. Appellant’s failure to properly object at trial precludes this court’s review of testimony which, in any event, did not bolster the victim’s identification. (People v Martin, 50 NY2d 1029; People v Liccione, 50 NY2d 850; People v Dawson, 50 NY2d 311; People v Maschi, 49 NY2d 784; People v Beyer, 25 NY2d 833; Baccio v People, 41 NY 265; People v Parks, 59 AD2d 543; People v Trowbridge, 305 NY 471; People v Altman, 63 AD2d 684; People v Napoletano, 58 AD2d 83.) V. Appellant was properly sentenced as a persistent felony offender. (People v Lasky, 31 NY2d 146; People ex rel. Ryan v Smith, 50 AD2d 1078; People v Lawrence, 37 AD2d 872; People v Hubbard, 71 AD2d 924; People v White, 309 NY 636; People v Spencer, 32 NY2d 446; People v Williams, 37 AD2d 353, 32 NY2d 651.) VI. The elements of burglary in the second degree were proved beyond any reasonable doubt. (People v Benzinger, 36 NY2d 29; People v Fein, 18 NY2d 162; People v Barnes, 50 NY2d 375; People v Licata, 28 NY2d 113; People v Shealy, 51 NY2d 933; People v Mackey, 49 NY2d 274;. People v Oliver, 4 AD2d 28, 3 NY2d 684.) VII. The crime of unlawful imprisonment is not merged with the crime of attempted rape. (People v Watson, 57 AD2d 143, 45 NY2d 867; People v Webb, 59 AD2d 618; People v Toppins, 59 AD2d 899.)
   OPINION OF THE COURT

Jones, J.

Defendant was denied his constitutional right to due process when the prosecution failed to disclose Grand Jury testimony to the suppression court for it to determine whether defendant was entitled to have access to that testimony at the suppression hearing. This constitutional deprivation requires that the denial of defendant’s suppression motion be vacated. Independently, defendant’s conviction for the crime of unlawful imprisonment would have to be vacated inasmuch as that crime merged into his conviction of attempted rape in the first degree.

Defendant moved to suppress a serrated knife, dungarees and yellow T-shirt which had been seized in a warrant-less search of his hotel room at times when he was neither present nor aware of the effectuation of the search. At the suppression hearing which followed, only one witness, Parole Officer Hotaling, testified. His account was substantially as follows: that he was having lunch at the Cobblestone Inn, Liverpool, New York, when informed by another parole officer that defendant was registered there under a false name; that he knew there was a warrant out for defendant’s arrest for parole violation; that the parole officers obtained a pass key from the manager of the inn and entered defendant’s room under the authority of a standard search consent form signed by defendant as a condition of parole; that they discovered certain identifying papers and he took into his possession a serrated-edged steak knife; that he then verified that a warrant was indeed outstanding for defendant’s parole violation and set up a stakeout of the hotel; that shortly thereafter defendant was apprehended as he entered the hotel; that a scuffle ensued, defendant developed convulsions and was removed to a local hospital by ambulance; that Officer Wheeler of the Liverpool Police Department arrived at the hotel in response to the ambulance call; that Hotaling and other parole officers (but not Wheeler) re-entered defendant’s room for the purpose of collecting his belongings; that Wheeler described certain clothing worn by a suspect in an attempted knifepoint rape case he was then investigating; and that a pair of pants, a yellow T-shirt and the serrated-edged knife were turned over to Wheeler.

Based on that testimony the suppression court determined that the search of defendant’s room was a valid search pursuant to the conditions of parole. Never disclosed to the suppression court or made available to defendant prior to or at the hearing, however, was the Grand Jury testimony of Officer Wheeler. It is defendant’s contention that the prosecution’s failure to disclose both the existence and substance of that testimony deprived defendant of due process of law. In the circumstances of this case, we agree.

The substance of Officer Wheeler’s Grand Jury testimony is that it was only after receipt of the ambulance call (following the completion of the first search of defendant’s room by the parole officers before defendant had appeared at the Cobblestone Inn) that Wheeler arrived on the scene, that it was Wheeler, not the parole officers, who entered and searched defendant’s room for the second time, that he did so because he suspected that defendant had perpetrated the rape that he was investigating, and that it was Wheeler who then took the knife with the serrated edge from a handbag lying open in the room. Noticeable, also, by its absence from Wheeler’s Grand Jury testimony is any mention of the presence of Parole Officer Hotaling; nor is there any indication in such testimony that either of the parole officers whom Wheeler did identify as present had any part in the search. It might well be that on further interrogation and clarification the versions of Wheeler and Hotaling would be reconciled; however, because Wheeler’s testimony on its face is inconsistent with that adduced by the prosecution at the suppression hearing, its nondisclosure was fundamentally unfair to defendant. In opposition to the motion to suppress, the prosecution presented a testimonial picture of a properly conducted parolee consent search in which Officer Wheeler took no part. Officer Wheeler’s own testimony, however — that it was he who conducted the second search and who seized the serrated knife — standing as it does unexplained and unclarified, could not without some speculation be harmonized with that portrayal. Quite different legal principles would have been controlling had the suppression court determined that the search and seizure had been conducted by a police officer. For this reason disclosure of Wheeler’s testimony of the events was required.

This is not to suggest that prosecutors must disclose to the court each and every statement or bit of evidence or the results of every avenue of investigation. Indeed, there are , many situations where the prosecution can fairly keep to itself what it alone possesses. But where, as here, there is in the possession of the prosecution evidence of a material nature which if disclosed could affect the ultimate decision on a suppression motion, and that evidence is not disclosed, such nondisclosure denies the defendant due process of law. The failure of the District Attorney in this instance to disclose to the suppression court the Grand Jury testimony of Officer Wheeler (which on its face can only be classified as “favorable” to defendant) to allow the suppression court to make an in camera inspection to determine whether the testimony should be made available to defendant prior to or at the suppression hearing, constitutes a denial of the due process required by the Federal Constitution under the principles of Brady v Maryland (373 US 83) and its progeny.

The crime of unlawful imprisonment in the second degree (Penal Law, § 135.05) in the circumstances of this case merged into the higher grade offense of attempted rape in the first degree (Penal Law, § 130.35, subd 1; § 110.00) with which defendant was charged and convicted. The merger doctrine is intended to preclude conviction for kidnapping and related offenses based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without those acts and independent criminal responsibility may not be fairly attributed to them (People v Cassidy, 40 NY2d 763, 767). The doctrine is certainly applicable to this case, where any restriction of the victim’s movements was wholly incidental to the simultaneous commission of the crime of attempted rape.

Accordingly, the order of the Appellate Division should be modified, the denial of defendant’s motion to suppress the physical evidence vacated, and the case remitted for a new suppression hearing. If thereafter the motion is again denied, defendant’s conviction on the charge of unlawful imprisonment should be vacated but his convictions on the remaining charges should stand and an amended judgment should be entered reflecting this disposition, any appellate review of which will be limited to the suppression ruling. On the other hand, if the motion to suppress is granted, defendant’s convictions should be vacated and the case continued for further proceedings on all counts of the indictment, including that for unlawful imprisonment.

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

Order modified and case remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

       Wheeler’s testimony was later submitted to the court at the time of the subsequent pretrial identification hearing, but only after the motion to suppress the physicial evidence had been denied. The court then denied disclosure to defendant on the ground that Wheeler’s testimony contained no references to the pretrial identification procedures.


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Richard J. Jennings, Appellant.
    Argued November 19, 1981;
    decided December 23, 1981

      POINTS OF COUNSEL

      David I. Schoen, Matthew Muraskin and Michael J. Obus for appellant.
    I. Appellant’s arrest was illegal and all evidence resulting therefrom should have been suppressed. (Whiteley v Warden, 401 US 560; People v Lemmons, 49 AD2d 639, 40 NY2d 505; United States v Mackey, 387 F Supp 1121; Giordenello v United States, 357 US 480; Weeks v Estelle, 509 F2d 760; United States v Hall, 468 F Supp 123; People v Lypka, 36 NY2d 210; Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Brown, 40 NY2d 183.) II. Appellant’s confession taken at the courthouse should have been suppressed. (People v Samuels, 49 NY2d 218; People v Lockwood, 55 AD2d 17, 44 NY2d 769; People v Hobson, 39 NY2d 479; People v Settles, 46 NY2d 154; People v Rodriguez, 11 NY2d 279; People v Richardson, 25 AD2d 221; People v Meyer, 11 NY2d 162; People v Wynn, 102 Misc 2d 785; People v Kazmarick, 52 NY2d 322; People v Ramos, 40 NY2d 610.)

      Denis Dillon, District Attorney (Judith R. Sternberg and William C. Donnino of counsel), fqr respqndent.
    I. Appellant’s guilt was preved beyend any deubt. (People v Sim, 53 AD2d 992, 44 NY2d 758; People v Carroll, 37 AD2d 1015; People v Gates, 24 NY2d 666; People v Means, 74 AD2d 1005; People v Long, 71 AD2d 973.) II. The arrest was valid and the fruits of that arrest were properly admitted into evidence at trial. (People v Ingle, 36 NY2d 413; Whiteley v Warden, 401 US 560; People v Payton, 51 NY2d 169; Stone v Powell, 428 US 465; United States v Williams, 622 F2d 830; People v Adams, 53 NY2d 1; Bivens v Six Unknown Fed. Agents, 403 US 388; United States v Mackey, 387 F Supp 1121; Hill v California, 401 US 797.)
   OPINION OF THE COURT

Meyer, J.

An arrest is invalid when the arresting officer acts upon information in criminal justice system records which, though correct when put into the records, no longer applies and which, through fault of the system, has been retained in its records after it became inapplicable. Accordingly, an arrest made in reliance upon the computerized criminal record file of defendant, which showed as outstanding a parole violation warrant which had in fact been executed nine months before and vacated four months before the arrest, is made without probable cause. The order of the Appellate Division affirming the County Court Judge’s denial of suppression of evidence obtained as a result of defendant’s arrest should, therefore, be reversed.

Defendant was suspected of committing a series of burglaries in Málveme, Long Island, in August, 1978. A flyer alerting Hempstead, Málveme and Lynbrook Police Departments about defendant’s identity, the make and model of his car, and his suspected activities was circulated by Nassau police in early September, 1978. On September 11, 1978, Officer Raymond Enright of the Hempstead Police Department spotted defendant while cruising on Belmont Parkway. He followed defendant’s car for several blocks during which defendant drove through a stop sign and twice failed to signal before making a turn. Enright pulled defendant over for these traffic violations and while writing up the tickets gave defendant’s name, date of birth, race and sex to Hempstead Police Headquarters for a warrant check, in accordance with standard procedure.

From Hempstead headquarters Officer Kenneth Bergman forwarded the identifying information by teletype to the National Crime Information Center maintained by the Federal Bureau of Investigation in Maryland and to the New York State Identification and Intelligence System. Within two or three minutes he received a teletype response of a “hit”, an active violation warrant issued in November, 1977 by the New York State Division of Parole, which had been reported to both NYSIIS and NCIC. In fact, the warrant had been executed in January, 1978 and NYSIIS had been notified soon thereafter by the filing of a clearance form that the warrant was no longer outstanding. Moreover, after a hearing held June 21, 1978, the parole violation warrant had been vacated by Supreme Court order.

Based upon the teletype he received, Officer Bergman advised Enright of the existence of the warrant and then sought by teletype to check with the Division of Parole on its status. No response to that inquiry was ever received, but, Officer Bergman testified, response to such an inquiry being a manual rather than a computer operation, a lapse of 6 to 24 hours in receiving a response would be normal.

Enright, informed that there was an open warrant for defendant, immediately arrested him. Search of defendant’s person incident to the arrest produced a quantity of jewelry which had been stolen from two households in Hempstead earlier that evening. Search of the trunk of defendant’s car uncovered television sets, stereo and other equipment also taken from these households. In addition, defendant’s palmprint, obtained in the arrest processing, was found to match a print lifted from a fishbowl at a North Valley Stream residence that had been burglarized in August, 1978, a crime which defendant subsequently admitted.

Indicted for the Hempstead and North Valley Stream burglaries, defendant moved on Fourth Amendment grounds to suppress the physical evidence, his palmprint and his statement. The motion was denied and defendant was convicted after trial. The Appellate Division unanimously affirmed the judgment of conviction. There should be a reversal. We agree with the decision of the Appellate Division, Third Department, in People v Lemmons (49 AD2d 639, affd without reaching the issue 40 NY2d 505) which is contrary to the decision below.

The question presented is extremely narrow. Defendant does not contest the validity of the vehicle stop (see People v Ingle, 36 NY2d 413). He challenges, instead, the validity of his subsequent arrest as a parole violator. Nor can it be controverted that if defendant’s arrest was invalid, the items taken from his person and from the vehicle trunk, as well as his palmprint and his statement, must all be suppressed as poisoned fruits of that unlawful arrest (see Wong Sun v United States, 371 US 471). Because we agree that the arrest was invalid, it is unnecessary for us to reach any of the other grounds for suppression urged by defendant.

Whiteley v Warden (401 US 560) definitively established what has been referred to as the “fellow officer” rule (see United States v Ventresca, 380 US 102, 111; 1 La Fave, Search and Seizure, §3.5, subd [b], p 623): in making an arrest a police officer may rely upon information communicated to him by another police officer as, for example, that an individual is the subject named in a warrant and should be taken into custody in execution of the warrant. However, if, in the example given, the warrant turns out to be invalid, any evidence seized as a result of the arrest will be suppressed notwithstanding the reasonableness of the arresting officer’s reliance upon the communication (Whiteley v Warden, 401 US 560, 568, supra). The People ask us to distinguish between an arrest on a warrant apparently valid but later adjudicated to have been invalidly issued and an arrest on a warrant validly issued but vacated prior to the arrest made on the basis of it. Although there is a factual difference between these two situations, they are the same in critical part. In each case, police intrude upon protected Fourth Amendment interests under the purported authority of a warrant which is subsequently revealed to have furnished, at the time of the intrusion, no justification for such police conduct.

Finally, we expressly reject the People’s contention that Officer Enright’s “good faith” reliance upon the parole warrant “hit” renders, the exclusionary rule inapplicable. An assessment of probable cause turns on what was reasonably and objectively in the mind of law enforcement authorities. It does not turn on such subjective considerations as the absence of malice against a suspect, the lack of intent to violate constitutional rights (People v Adams, 53 NY2d 1, 9; Hill v California, 401 US 797, 804) or any other variation of what has been referred to in another context as the “white heart and empty head” standard (White & Summers, Uniform Commercial Code [2d ed], p 218). The good faith of the enforcement authorities cannot validate an arrest based upon a warrant which had been vacated four months before and had been executed nine months before the arrest was made.

The order of the Appellate Division should be reversed, the judgments of conviction vacated, the motion to suppress granted, and the matter remitted to the trial court for further proceedings on the indictments.

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

Order reversed, judgments of conviction vacated, defendant’s motion to suppress granted and case remitted to Nassau County Court for further proceedings on the indictments.

      . The statutory predicate for NCIC is section 534 of title 28 of the United States Code. As to its history see United States v Mackey (387 F Supp 1121,1123); Rentschler, Garbage In, Gospel Out: Establishing Probable Cause Through Computerized Criminal Information Transmittals (28 Hastings LJ 509); Doernberg & Zeigler, Due Process Versus Data Processing: An Analysis of Computerized Criminal History Information Systems (55 NYU L Rev 1110, 1119).

      . The statutory predicate for NYSIIS is subdivision 6 of section 837 of the Executive Law.

      . The People argue inevitable discovery through an inventory search, but that overlooks Officer Enright’s concession that until he learned of the warrant he was not going to arrest defendant, who had been given tickets for the traffic violations.


text:
    The People of the State of New York, Respondent, v James Powell, Appellant.
    Argued November 18, 1981;
    decided December 23, 1981

      POINTS OF COUNSEL

      Barry D. Leiwant, William E. Hellerstein and Thomas H. Busch for appellant.
    Where the jury could have found that the Men’s Shelter was appellant’s home, the trial court erred when it instructed the jury that one’s “home,” for the purpose of subdivision (4) of section 265.02 of the Penal Law — which provides that possession of a loaded firearm in one’s home is only a misdemeanor — cannot be a “public place,” as defined in subdivision 1 of section 240.00 of the Penal Law. (Matter of Jakeway v Bauer Co., 218 App Div 302; People v Douglas, 82 Misc 2d 971; People v Bargeman, 92 Misc 2d 173; People v Santana, 77 Misc 2d 414; People v Francis, 45 AD2d 431, 38 NY2d 150; People v Fearon, 58 AD2d 1041, 434 US 1036; People v McWilliams, 96 Misc 2d 648; People v La Paz, 95 Misc 2d 756.) dant’s guilt was proved beyond a reasonable doubt. II. The court correctly charged the jury as to the definition of “home” within the exception contained in subdivision (4) of section 265.02 of the Penal Law. (People v Bargeman, 92 Misc 2d 173; People v Taylor, 92 Misc 2d 29; Matter of Jakeway v Bauer Co., 218 App Div 302; People v Santana, 77 Misc 2d 414; People v Anderson, 74 Misc 2d 415; People v Santiago, 74 Misc 2d 10; People v La Paz, 95 Misc 2d 756; People v Francis, 45 AD2d 431, 38 NY2d 150; People v Fearon, 58 AD2d 1041; People v McWilliams, 96 Misc 2d 648.)

      Robert M. Morgenthau, District Attorney (Michael J. Prior and Mark Dwyer of counsel), for respondent. I. Defen-
   OPINION OF THE COURT

Meyer, J.

The Trial Judge correctly instructed the jury in a prosecution under subdivision (4) of section 265.02 of the Penal. Law for possession of a loaded firearm that a person’s home, within the meaning of the exclusion from that section, may “extend to facilities shared by several persons not related to each other” but does not encompass a place “to which the public or a substantial group of persons has access”. Reference in the charge, as an aid to the jury, to the definition of “public place” contained in a separate article of the Penal Law, while better left unsaid, was not under the circumstances of this case error. The order of the Appellate Division affirming defendant’s conviction under section 265.02 rather than section 265.01 should, therefore, be affirmed.

In apparent deference to the concept that possession of a loaded firearm to protect the persons or property in one’s home or place of business is less reprehensible than possession for other purposes (see People v Francis, 45 AD2d 431, 434, 435, n 1, affd without discussing the point 38 NY2d 150; People v Bargeman, 92 Misc 2d 173, 176), the Legislature has classified such possession as a misdemeanor punishable under section 265.01 of the Penal Law and possession outside the home or place of business as a class D felony (Penal Law, §265.02). Though article 265 of the Penal Law contains no definition of “home,” article 240 governing offenses against public order, for the purposes of that article, defines “public place” (§ 240.00, subd 1) to include “hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.” Defendant contends that by including in the charge defining “home” the section 240.00 definition of “public place,” the Trial Judge took from the jury the question whether he was in his “home” and was, therefore, guilty only of the misdemeanor rather than the felony.

Defendant was arrested as he stepped out of the elevator into the lobby of the Men’s Shelter at 8 East Third Street in Manhattan. The shelter is a six-story building run by the city’s Human Resources Administration to assist persons receiving public aid. Meals are provided in a dining area located in the basement. On the first floor are the lobby and reception area, a bathroom and the so-called “big room,” a large auditorium separate from the lobby where clients of the shelter watch television during the day and where those unable to stay in a hotel may sleep after midnight. The other floors of the shelter contain offices, a library, a recreation area, a mailroom and a unit for bedridden clients.

Members of the Permanent Population Unit of the shelter receive lodging service, a meal ticket, clothing vouchers and other counseling and assistance. Lodging service for most PPU members consists of a ticket for one month’s lodging at one of six hotels on the Bowery, but those unable to get hotel lodging may sleep in the big room. Many members sleep in parks or in building hallways.

Defendant had been a member of the shelter’s Permanent Population Unit for 19 months before he was arrested. He ate most of his meals at the shelter, spent about four hours a day there using the recreational facilities or obtaining services, received his mail there, and voted from that address. He slept at the hotel to which he was ticketed, or in the big room or in parks or hallways when he did not obtain a hotel room, but always returned to the shelter for breakfast. To get to the dining room in the basement or to the recreational facilities or offices on the upper floors one must use the elevator or stairway, both of which open into the lobby. To get to the big room from the elevator or stairway one must walk through the lobby. On an average day 900 to 1,200 shelter clients pass through the lobby as well as a number of other persons who are not clients of the shelter.

At trial defendant admitted possession of a loaded revolver but contended that the shelter was his home and that, therefore, he could only be convicted of the misdemeanor (possession in the fourth degree) and not the felony (possession in the third degree). The Trial Judge submitted to the jury the questions of possession, whether the thing possessed was a firearm, whether it was loaded and whether the shelter was defendant’s home, charging on the last as set forth in the margin. The jury found defendant guilty of possession of a loaded firearm not in his home. The Appellate Division affirmed, one Justice dissenting, holding that the portion of the shelter in which defendant was arrested could not constitute his home because he had no expectation of privacy in it. The appeal is before us by permission of the dissenter at the Appellate Division.

The absence of a statutory definition of the word “home” as used in subdivision (4) of section 265.02 of the Penal Law like the lack of a definition of the phrase “place of business” as used in that subdivision, has caused Trial Judges to seek analogy in other provisions of the Penal Law or Criminal Procedure Law, as well as in the Election Law and in the case law governing both inheritance and workers’ compensation (People v Bargeman, 92 Misc 2d 173, supra; People v Taylor, 92 Misc 2d 29; People v Douglas, 82 Misc 2d 971; People v Lemelle, 81 Misc 2d 674). The spirit and intent of the various other statutes relied upon, as well as their language, differ materially, however, from that of the gun control law.

The result has been something of a ragout. Thus, People v Lemelle (supra) held that a loaded pistol in a garbage can at the side of defendant’s house was not in defendant’s home, a result which may appear correct if one emphasizes the word “in” in the statutory phrase “possession [which] * * * takes place in such person’s home” (italics and bracketed word supplied), but People v Taylor (supra, p 30) held that an intoxicated person lying “with half of his body on the stoop and half in the inner hallway of a two-family house” was in his home, because the hallway and porch were not public places and were part of the curtilage, and in People v Merced (NYLJ, May 21, 1976, p 11, col 4) the Trial Judge in a Bench trial, refusing to exclude from the home a backyard, driveway or porch, held that possession of a loaded pistol within the fenced-in driveway of defendant’s home was but a misdemeanor.

In People v Douglas (82 Misc 2d 971, supra), a Bench trial, the Trial Judge held the abode of a lady with whom defendant had “a strong social connection,” where he ate many of his meals and often stayed overnight, was defendant’s home within the meaning of the gun control law, though defendant had another abode where he stayed at times, and in People v Bargeman (92 Misc 2d 173, supra) the common hallway linking sleeping rooms of unrelated persons to the bathroom and other common facilities in the wing of the hotel in which they lived together, the hallway being separated by a locked door from the vestibule, elevator and stairwell and from the entrance to another wing of the same residency hotel, was held part of defendant’s home as a matter of law. Though based on widely different reasoning, both seem to have interpreted the subdivision realistically in light of the legislative intent.

The common though unarticulated thread of all of the decisions above referred to is, as the Appellate Division suggests, whether the possessor of the weapon was entitled to “privacy, as one would have in his home” in the area where he was apprehended with the weapon. The very antithesis of privacy is unlimited public access, no matter how closely related the possessor, as a subjective matter, may feel to the particular area as part of what he calls “home,” or the extent to which he uses the area as one would a part of his home. To possess a weapon for the purpose of protecting one’s person or property within the common area of the residence of a limited group such as was involved in Bargeman (supra) is within the legislative intent because in such an area the limited group is entitled to privacy and the public does not have access. A common hallway outside the group residence, however, is not within that intent because there strangers to the group are allowed access and there is there no right to privacy (cf. People v Peters, 18 NY2d 238, 244, affd 392 US 40; see, also, Ann., 57 ALR3d 938) and more possibility of harm to others from the carrying of a loaded weapon.

Tested against this criterion the charge as given by the Trial Judge was proper. Though it did not speak of entitlement to privacy in so many words, it did distinguish types of buildings and areas within buildings and refer to the limitation of access to the area in question. Defendant argues, on the basis of our holding in People v Neumann (51 NY2d 658), that the charge erroneously applied the “public place” definition of article 240 to an article 265 crime. To the extent that the charge told the jury that the definition was from the Penal Law, it was certainly better left unsaid, for section 240.00’s definitions are expressly stated to be “applicable to this article” (cf. Penal Law, § 10.00, defining terms of general use in the entire chapter), and as the charge was worded the jury may well have understood that the public place definition read to them was a definition which the Legislature had provided for use in construing article 265. Under the circumstances of this case, however, the charge was not erroneous. The uses defendant made of the shelter were essentially recreational and consultative, rather than residential. More importantly, the lobby in which defendant was arrested and in which, he admits, he was possessed of a loaded firearm was one through which passed more than 900 people per day and to which not only shelter clients who did not reside there and shelter employees but also the public had unlimited access.

Defendant argues further, from People v Wicker (78 Misc 2d 811) and People v Merced (NYLJ, May 21, 1976, p 11, col 4), both supra (holding that a driveway, though open to the public, is part of a “home”), that the “public place” definition of section 240 was overly broad to be used in his case and, in effect, directed a verdict against him. There is, however, a material difference between such occasional use by persons who are of the “public” only in the sense that they are not part of the resident’s household and the numerous persons who for many and varying reasons had access without limit to the Men’s Shelter lobby area. Defendant was not entitled to a charge on the theory of the Wicker and Merced cases.

For the foregoing reasons, the order of the Appellate Division should be affirmed.

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

Order affirmed.

      . Section 265.02 provides, in pertinent part: “A person is guilty of criminal possession of a weapon in the third degree when: (1) He commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime; or *** (4) He possesses any loaded firearm. Such possession shall not, except as provided in subdivision one, constitute a violation of this section if such possession takes place in such person’s home or place of business.”

      . “The word ‘home’ is subject to many definitions, while in many instances it is simple to define or equate the word ‘home’ with a designated type of dwelling such as a particular house or an apartment occupied by a single person or a family unit, the word ‘home’ may also extend to facilities shared by several persons not related to each other. Thus where several persons share a common area, for those purposes essential for daily living such as sleeping, eating, bathing and resting purposes such areas may also constitute a home provided that access to those particular facilities is in some way controlled or limited to those seeking to utilize those facilities as their home or residence. Now, in this case you have heard testimony with respect to the nature of the premises located at 8 East Third Street that is that it is a Mens’ Shelter. You also heard testimony with respect to what contact the defendant had with such facility as well as testimony as to the location within that building where the defendant was stopped by the officer. And it is important to note that in regard to that, even a person may be said to have his home in a particular structure or building the particular portion of that building which may be said to constitute that person’s home will necessarily depend upon the type of building involved. Thus, for example, in an apartment building a person’s home is limited to the confines of a particular apartment occupied by the person, while in a one family private dwelling the entire structure constitutes the home. Now, to aid you in this case I am going to read to you the definition of the wordfs], public place, which appears in our penal law, since a home cannot also be a public place. The law defines a public place as follows: A public place means, a place to which the public or a substantial group of persons has access and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds and hallways and lobbies, and other portions of apartment houses and hotels not constituting rooms or apartments designated for actual residence. Therefore, if you should find that the area in which the defendant was found in possession of the gun in this case was a public place within the meaning of the definition that I have just given you, it cannot be the defendant’s home, for the purpose of this statute, even if you should find that there were other areas within the shelter that did constitute his home.”

      . (See People v Francis, 38 NY2d 150, 152; People v McWilliams, 96 Misc 2d 648.)

      . The word “dwelling” is used in the section of the Penal Law governing justification (Penal Law, §35.15, formerly §1055) and its purpose, to define the obligation to retreat rather than fight in self-defense, is almost diametrically opposed to the purpose behind subdivision (4) of section 265.02 of the Penal Law. “Dwelling” rather than “home” is also used in article 140 governing criminal trespass and burglary, but is specifically defined by subdivision 3 of section 140.00 to mean “a building which is usually occupied by a person lodging therein at night”, a definition included within but not as broad as the usual connotation of “home” (cf. Webster’s, Third New International Dictionary, p 1082 [“the house and grounds with their appurtenances habitually occupied by a family”]). GPL 140.50 permits a stop and frisk in a “public place”, for some but not all purposes the antithesis of “home.” Article 240 governing offenses against public order also uses the phrase “public place,” but with specific definitions in sections 240.00 and 240.37 tailored to the specific offenses dealt with. The section 240.00 definition is carried over to subdivision 1 of section 221.10 differentiating the burning of marihuana in a “public place” from other degrees of possession, a purpose similar to but distinguishable from (because of the unusual odor of marihuana) that of the gun control law. Subdivision 3 of section 265.35, without defining “public place,” makes it a misdemeanor to discharge a firearm in a public place except in self-defense or in the discharge of official duty. The Election Law refers to a voter’s “residence,” which is specifically defined in subdivision 22 of section 1-104 (see, also, §§ 5-104, 5-222) with the purpose of qualifying the right to vote or to run for office, clearly a materially different purpose than that of article 265.

      . The same result was reached under subdivision 3 of section 265.35 (discharge of a firearm “in a public place”) in People v Wicker (78 Misc 2d 811).