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

text:
    The People of the State of New York, Respondent, v James Savage, Appellant.
    Argued April 30, 1980;
    decided July 3, 1980

      POINTS OF COUNSEL

      Bennett M. Lincoff and William E. Hellerstein for appellant.
    I. Appellant’s right to due process of law as guaranteed by both the Fourteenth Amendment to the United States Constitution and section 6 of article I of the New York Constitution was violated when the prosecutor was permitted to question appellant during cross-examination, over defense counsel’s objection, and to comment during summation, on appellant’s postarrest failure to present his exculpatory defense. (Doyle v Ohio, 426 US 610; United States v Fairchild, 505 F2d 1378; People v Wise, 46 NY2d 321; People v Bornholdt, 33 NY2d 75; Agnello v United States, 269 US 20; People v Rahming, 26 NY2d 411; People v Aaron, 55 AD2d 653; People v Martinez, 80 Misc 2d 735; People v Bennett, 65 AD2d 801; Griffin v California, 380 US 609.) II. Appellant’s right to due process of law as guaranteed by both the Fourteenth Amendment to the United States Constitution and section 6 of article I of the New York Constitution was violated by the court’s charge which transferred to appellant the burden of proof on the elemental issue of intent by instructing the jury that it may infer that a person intends the natural and probable consequences of an act done by him unless the act was done under such circumstances as to preclude the existence of such intent. (Mullaney v Wilbur, 421 US 684; People v Patterson, 39 NY2d 288, aifd sub nom. Patterson v New York, 432 US 197; Sandstrom v Montana, 442 US 510; Mann v United States, 319 F2d 404, 375 US 986; United States v Robinson, 545 F2d 301; United States v Chiantese, 546 F2d 135; United States v Diggs, 527 F2d 509; Chappell v United States, 270 F2d 274.) III. Appellant’s right to due process of law and to compulsory process of witnesses on his own behalf, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and section 6 of article I of the New York Constitution, were violated by the court’s refusal to allow appellant to testify on direct examination to his intent at the time he drew the gun. (People v Levan, 295 NY 26; People v Wells, 272 NY 215; Chambers v Mississippi, 410 US 284; Washington v Texas, 388 US 14; People v Stewart, 37 AD2d 908; People v Singleton, 21 AD2d 907.)

      Mario Merola, District Attorney (Laurence J. Lebowitz and Billie Manning of counsel), for respondent.
    I. Appellant’s guilt was proved beyond a reasonable doubt. II. The prosecutor’s cross-examination of appellant and his comments during summation regarding appellant’s prior inconsistent statements did not deny appellant a fair trial. (Miranda v Arizona, 384 US 436; Doyle v Ohio, 426 US 610; People v Wise, 46 NY2d 321; People v Conyers, 49 NY2d 174; United States v Mireles, 570 F2d 1287; United States v Fairchild, 505 F2d 1378; United States v Mavrick, 601 F2d 921; United States v Hood, 593 F2d 293; United States v Dixon, 593 F2d 626; People v Beckham, 55 AD2d 680.) III. The trial court properly charged the jury on intent. (People v McLucas, 15 NY2d 167; People v Michael, 48 NY2d 1; People v Patterson, 39 NY2d 288; Sandstrom v Montana, 442 US 510; United States v Robinson, 545 F2d 301; Mann v United States, 319 F2d 404, 375 US 986; People v Getch, 68 AD2d 891; People v Dellipizzi, 61 AD2d 961; Cupp v Naughten, 414 US 141.) IV. The trial court did not improperly curtail the direct examination of appellant. (People v Levan, 295 NY 26; People v McLucas, 15 NY2d 167; Tooley v Bacon, 70 NY 34; People v Mather, 4 Wend 230; Walker v Dunspaugh, 20 NY 170; Downs v New York Cent. R. R. Co., 47 NY 83; Chambers v Mississippi, 410 US 284; Washington v Texas, 388 US 14.)
   OPINION OF THE COURT

Fuchsberg, J.

The question on this appeal is whether a defendant who, having been given the warnings required by Miranda v Arizona (384 US 436) and having elected to waive his right to silence, proceeds to narrate the essential facts of his involvement in the crime, may be cross-examined about his failure to inform the police at that time of exculpatory circumstances to which he later testifies at trial. We hold that, under the circumstances here, neither due process nor the privilge against self incrimination prohibits this manner of impeachment.

Defendant James Savage appeals from an order of the Appellate Division which affirmed a judgment entered upon a jury verdict convicting him of first degree assault. The conviction flowed from his shooting of one Robert Johnson in the course of an altercation outside the Central Bar on East 161st Street in The Bronx. At the trial several witnesses for the People, including Johnson, testified that Savage had drawn his gun and purposely shot Johnson. One of the prosecution’s witnesses, the arresting officer, testified that several weeks after the crime had been committed, when he apprehended the defendant, immediately after the administration of the Miranda warnings, the defendant volunteered, first, "I’m glad I’m caught — I’m tired” and then went on to describe his role in the shooting, confessing that he had shot Johnson with a gun he possessed during an altercation outside the bar. Significantly, to the prosecutor’s additional inquiry, made without objection, as to whether the defendant had "indicate[d] anything further to you apart from what you’ve just started”, the officer's response was "no”.

Thereafter, during his own case, the defendant, choosing to take the stand, testified that he indeed had shot Johnson and then added by way of justification that the shooting had occurred during an altercation precipited when Johnson attempted to rob him. He also told the jury that the actual discharge of the gun was inadvertent. On cross-examination the prosecutor, in an obvious attempt to establish that the exculpatory material was a recent fabrication, essayed, and over objection was permitted, to put a short series of questions at the heart of which was the one that reads: "Now, when you saw Detective Creegan [following the arrest], before you saw your lawyer, when you saw the police officer, did you tell the police oficer that [Johnson] attempted to rob you?” The defendant’s response was that he had done so. As might be expected, during the course of his summation, the District Attorney, in arguing that the detective’s version of the post-Miranda statement was more credible, made the point that, if it was, the fact that the defendant had omitted any mention of the exculpatory circumstance at the time of his original statement militated against its truth. In our view, the prosecutor’s queries to the defendant were proper and, therefore, so were the comments made in closing argument.

It is by now well settled that the use of his postarrest silence against a defendant even for impeachment purposes may violate due process and the privilege against self incrimination. In Doyle v Ohio (426 US 610), fundamental fairness forebade a prosecutor to attempt to draw an adverse inference from the fact of a defendant’s silence at the time of arrest because the defendant’s receipt of the Miranda warnings had, in effect, conveyed the State’s assurance that, if he elected to remain silent, his silence would not be used against him (id., at pp 617, 619; see Jenkins v Anderson, 447 US 231, —, 48 USLW 4693, 4696). Having been told he need not speak about the facts of the case at that time, the State cannot renege on its promise and use the silence to impeach him when he subsequently testifies at trial. Moreover, viewed against the obvious prejudice, the use of the silence a defendant maintained at a time when he was privileged to say nothing at all was recognized to be of dubious probative value because it cannot be determined whether, in fact, it was the existence of the privilege that induced the silence. (Doyle v Ohio, supra, at pp 617, 618; see People v Rutigliano, 261 NY 103, 107.)

However, as the Supreme Court has even more recently made clear, a defendant, who, in the face of Miranda warnings, decides not to exercise his privilege but instead chooses to speak to the police about the charges against him, enjoys no due process protection from such an inquiry (see Jenkins v Anderson, supra, at p —, 48 USLW, p 4696; Anderson v Charles, 447 US —, 48 USLW 3819). Rather, whether he may be impeached by the use of telling omissions from the tale he told is to be determined under State evidentiary law (Jenkins v Anderson, supra, at p —, p 4696; cf. People v Dawson, 50 NY2d 311, 321-322).

Against this backdrop, the case before us emerges as fundamentally different from Doyle (supra). For, the simple and undeniable fact is that the defendant here did not remain silent. In stark contrast to the circumstances in Doyle, where the defendants " 'did not speak about the facts of the case at the time’ ” when the silence there occurred (426 US, at p 619, as reiterated in Jenkins v Anderson, supra, at p —, p 4694), the most cursory examination of the record reveals that Savage, for all practical purposes, did just the opposite.

As already indicated, the direct testimony of the arresting officer established that Savage, without any overbearing of his will, responded to the opportunity to inform the officer of his involvement in the crime. Moreover, this he did in no conclusory form. A breakdown of his statement proves that he specifically stated that he possessed a pistol, that he used the weapon to shoot Robert Johnson, that the shooting occurred in the course of a dispute between him and Johnson, that the shooting took place in front of a bar and that the bar was located on 161st Street. Not only were these relevations incriminatory, they expressly incorporated essential elements of the crime with which he was to be charged. But excluded from all this was the crucial exculpatory circumstance to which the defendant later was to testify — that he had shot his victim unintentionally while warding off the latter’s attempt to rob him.

Given defendant’s voluntarily rendered narrative of his part in the shooting, this omission speaks more eloquently than words. For, what was omitted is far from an inconsequential detail or a collateral matter, but a fact of such overwhelming significance that its absence from the narrative was at least as calculated to distort his recitation as a most affirmative falsehood. It put an entirely different cast on the event.

It is an elementary rule of evidence, and of common sense, in our State and almost every other jurisdiction, that, when given circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment (3A Wigmore, Evidence [Chadbourn rev ed], § 1042; Richardson, Evidence [10th ed — Prince], § 222). This rule is firmly imbedded in behavioral expectations (cf. People v Dawson, supra).

Therefore, that the defendant decided not to offer the mitigating explanation for his conduct in amelioration of his role in the shooting he undertook to describe could challenge credulity. Having on his own ventured to communicate devastatingly incriminating information, his failure to then so much as mention the excuse he was later to put forth is well-nigh inexplicable except as a recent fabrication. Measured by the way in which almost any normal person would perceive it, the strongest considerations of self-interest would be expected to keep him from containing it within himself. In short, his conduct ran counter to human experience. And further confirmation of its significance comes from the setting in which the omission occurred: that moment of psychological truth when a defendant chooses to inculpate himself, "that moment [when] he will tell all, and tell it truly” (3 Wigmore, Evidence [Chadbourn rev ed], § 851, p 524). Thus, the exclusion, however it might be weighed by the triers of the facts, was, to say the least, extraordinarily probative in enabling them to evaluate the reliability of the explanation when it surfaced for the first time at trial.

Moreover, reference to the omission, because of its negative nature, could not serve substantively as evidence in chief to prove the commission of the crime. It did not lend itself to employment, whether by way of evidence or argument, as anything more than a device for impeachment (compare United States v Agee, 597 F2d 350, 354, 357, cert den 442 US 944, with id., at pp 365-368 [dissenting opn]).

Such an analysis fully grants the respect to be accorded a defendant’s constitutional rights, whether in the exercise of his privilege against self incrimination or to the process that is his due. But, doing so, it also recognizes that the intent behind the privilege against self incrimination, exemplified by the supportive Miranda procedures it has spawned, is not to induce silence but only to insure that the choice to speak is free and uncompelled (see ALI, Model Code of Pre-Arraignment Procedure, pp 368-374). That it was so in the case before us now is unchallenged. There is not the slightest suggestion that government action, passive or active and whether via the Miranda warnings or otherwise, induced the omission. If anything, it can be said that the warnings provided him with a ready means by which to rationalize the omission at trial (see Doyle v Ohio, 426 US, at p 626 [Stevens, J., dissenting]).

In striking the balance these principles bespeak, the State is denied the right to draw adverse inferences from the fact that a defendant has maintained an effective silence, even if something less than total. However, as we have seen, constitutional standards do not inhibit every use of a defendant’s postarrest silence, but only those which are fundamentally unfair (Doyle v Ohio, supra, at pp 618, 619-620, and n 11; United States v Conlin, 551 F2d 534, cert den 434 US 831 [to rebut defendant’s claim that he told exculpatory version to police after his arrest]; cf. Jenkins v Anderson, 447 US 231, 245, —, 48 USLW 4693, 4696, 4698, n 1, supra [Marshall, J., dissenting, use of prearrest silence to impeach defendant’s credibility]; Roberts v United States, 445 US 552, 562-563 [Brennan, J., concurring, refusal of defendant to answer questions about coconspirators held to permit increased sentence]; United States v Trujillo, 578 F2d 285, 287-288 [postarrest silence may be pertinent to claim of insanity]).

Thus, as Doyle teaches, courts may not overlook the obvious fact that postarrest silence will often be (at p 617) "insolubly ambiguous” since it may be impossible to determine whether the defendant was motivated to remain silent in the exercise of his Fifth Amendment privilege or, for example, because he then possessed no acceptable explanation for the conduct for which he was in custody. But, in a case like the one before us today, where we deal with a defendant who did not stand mute, evenhanded logic dictates that time-tested evidentiary procedures for the ascertainment of truth not be ignored (Anderson v Charles, 447 US —, 48 USLW 3819, supra).

Surely, that is true as to a defendant who, instead of invoking his right to silence, " 'chooses to speak in the unfettered exercise of his own will’ ” (Miranda v Arizona, 384 US 436, 460, supra) and, in so doing, speaks pertinently to the criminal accusation against him. When, as in the present case, the defendant, though alerted to his rights by the officer, is ready enough to make an almost cathartic confessional of both his relief at being apprehended and the role he played in the shooting itself, he manifests an unmistakable "decision to cast aside his cloak of silence” and thus should not now be permitted to forestall impeachment of his credibility with the cavalier claim that he did not so intend (Jenkins v Anderson, supra, at p —, p 4695).

That this case does not fit into the analytical mold of Doyle is also apparent from the fact that the dissenters must indulge in the utterly unwarranted presumption that the defendant, whom the Miranda warnings did not deter from revealing his leading part in the criminal transaction, suddenly thought the better of it and refused to say anything more in reliance on the privilege which until that instant he had completely ignored. Putting aside the fact that nothing in the record supports this tenuous assumption, as already indicated such an approach must proceed on the peculiar premise that the defendant would unnaturally have halted his speech solely to withhold the one thing he normally would want to put up front, his exculpatory explanation.

This being so, it is noteworthy that other courts, interpreting Doyle in like circumstances, also have sanctioned the impeachment of a defendant’s credibility by confronting him with logically significant omissions from a postarrest statement (see, e.g., United States v Agee, 597 F2d 350, 354-357, supra; United States v Mireles, 570 F2d 1287, 1291-1293; Twyman v Oklahoma, 560 F2d 422, 424, cert den 434 US 1071; United States v Mitchell, 558 F2d 1332, 1334, 1335).

Most important, misapplication of the protective principles these cases indorse in the long run would but serve to undermine rather than advance the values protected by the privilege against self incrimination and those advanced by the requirement for due process. For nothing saps the strength of a legal precept more than when, as put into practice, it turns out to have an unanticipated, unrealistic and undesirable effect.

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

Chief Judge Cooke

(concurring). I concur in the result in this case. I write, however, because I believe that the majority’s studied silence on the matter overrules our recent decision, in People v Conyers (49 NY2d 174). There, relying on both the Federal and State Constitutions, we held that defendant’s postarrest silence could not be used against him, even in the absence of Miranda warnings. This rule was founded on the State’s implied promise not to use against a defendant the constitutionally guaranteed right to remain silent and on the rationale that it would be fundamentally unfair to permit the State to renege on that promise by later using that silence against him (People v Conyers, supra, at pp 179-180). Both due process and the privilege against self incrimination (NY Const, art I, § 6) prevented use of defendant’s postarrest silence for impeachment purposes. Moreover, we recognized the weak probative value of postarrest silence given its inherent ambiguity (id., at pp 181-182). In contrast to Conyers, the instant case does not involve postarrest silence. Defendant here freely chose to speak. Thus, Conyers is inapplicable. Since Jenkins v Anderson (447 US 231) does not compel a different approach to that adopted in Conyers, I cannot join the majority opinion in this respect.

Gabrielli, J.

(dissenting). Pursuant to well-established legal precedent, I am compelled to dissent and vote to reverse the order of the Appellate Division. Simply stated, the People were improperly permitted, over a timely objection, to question defendant about his failure to provide the police at the time of his arrest with every detail of the explanation for his conduct that he subsequently asserted at trial. Since there existed no actual inconsistency between what defendant told the police following his arrest and his testimony at trial, cross-examination concerning defendant’s partial silence at the time of his arrest is violative of due process (People v Conyers, 49 NY2d 174; Doyle v Ohio, 426 US 610; cf. People v Dawson, 50 NY2d 311).

In the early morning hours of January 4, 1977, defendant shot one Robert Johnson in the abdomen during an altercation with Johnson on the sidewalk outside the Central Bar at East 161st Street and Morris Avenue in The Bronx. Fortunately, the injury was not fatal. Savage was arrested for the crime several weeks later, and after being given the warnings mandated by Miranda v Arizona (384 US 436), defendant told police that he was glad he had been arrested, because he was "tired”. He also admitted that he had shot Johnson outside the Central Bar, but he otherwise gave no details about the incident at that time, according to the trial testimony of the officer to whom those statements were made. At defendant’s trial, Johnson and several other witnesses testified that defendant had drawn his gun and purposely shot Johnson during an argument. Defendant testified on his own behalf. He admitted shooting Johnson, but sought to justify his action, asserting that Johnson had assaulted him and was attempting to rob him. Defendant claimed that he drew the gun in the hope of frightening off Johnson and without any intention of actually using it, but that the gun accidentally discharged in the scuffle.

On cross-examination, the court permitted the prosecutor to ask defendant the following question over a timely defense objection: "Now, when you saw Detective Creegan [following the arrest], before you saw your lawyer, when you saw the police officer, did you tell the police officer that he [Johnson] attempted to rob you?” Since the officer had already testified on direct that defendant had simply admitted shooting Johnson and had not made any other statements following his arrest, this question was obviously intended to impeach defendant’s exculpatory testimony at trial by suggesting that it was a recent fabrication. Interestingly, however, defendant responded that he had in fact told the officer his version of the incident. The prosecutor was then permitted to cross-examine defendant at some length about the discrepancy thus revealed between the testimony of the officer and that of defendant concerning the statements defendant had made to the officer. For reasons that follow I am constrained to conclude that it was error to allow the People to question defendant about his failure to tell the police his version of the facts following his arrest. Hence, there should be a reversal and a new trial.

It has long been the law in this State that a defendant’s silence following his arrest may not be used against him as evidence of guilt (People v Rutigliano, 261 NY 103). Although at one time it was permissible to use the defendant’s silence as a means of impeaching his in-court testimony on the ground that it was a recent fabrication (see People v Rothschild, 35 NY2d 355), that exception to the general prohibition against the use of a defendant’s silence was sharply curtailed by the Supreme Court in Doyle v Ohio (426 US 610, supra). It was held in Doyle that a defendant who remains silent after being given his Miranda warnings may not subsequently be questioned, even for the limited purpose of impeachment, concerning that silence. Thereafter, in People v Conyers (49 NY2d 174, 180, supra) we recognized that under both the Federal and New York State Constitutions, "the use for impeachment purposes of an accused’s silence at the time of his arrest is violative of due process”. I consider this principle, which a fortiori is applicable to the assertion of the right to silence following an arrest (see Doyle v Ohio, 426 US 610, supra; see, also, People v Conrow, 200 NY 356, 367-369), to be dispositive of the instant appeal. Quite simply, the question quoted above constituted an attempt to use defendant’s postarrest silence to impeach his trial testimony by suggesting that his failure to tell the police his version of events following his arrest implied that it was a recent fabrication. As such, it falls within the bar against such cross-examination enunciated in Doyle and in Conyers.

The majority conclude that the instant case is distinguishable from Doyle and Conyers because the defendants in those cases said little or nothing to the police at the time of arrest, whereas Savage did admit that he had shot Johnson. I do not find this factual distinction to be constitutionally significant in this context. The majority impliedly suggest that a defendant who once waives his right to remain silent by speaking to the police must then either continue to speak or subject himself to cross-examination concerning his subsequent silence. I am unable to agree with that and cannot concur in the majority’s decision to so neatly separate the initial assertion of the right to remain silent from any subsequent exercise of that right. A defendant who does begin to speak to the police has the absolute right to cease speaking at any time and thereby impliedly reassert his right to be silent, and no compulsion, however subtle, may be employed to persuade such a defendant to continue speaking. One who makes an admission to the police does not thereby assume any obligation to volunteer further information, and the failure to do so may not serve as a basis for discrediting a subsequent explanation. This is so because the decision to refrain from giving complete details to the police, like the decision not to speak to the police at all, must be deemed an assertion of the defendant’s right to remain silent. Since the State has impliedly promised every defendant that it will not use his silence against him, it would be fundamentally unfair to nonetheless allow the assertion of that right to be used even for impeachment purposes only (see People v Conyers, supra).

Clearly distinguishable are those cases in which a defendant at or following his arrest actually makes a statement which is inconsistent with his later testimony at trial. In such a situation, the prosecution is free to use that inconsistency for impeachment purposes, even if the statement would be inadmissible on the prosecution’s direct case because it was obtained without first providing the suspect with the mandatory Miranda warnings (People v Wise, 46 NY2d 321; People v Harris, 25 NY2d 175, affd 401 US 222). There exist several reasons why a testifying defendant may be impeached by inconsistent statements obtained in violation of Miranda but not by his assertion of his right to refrain from speaking to his accusers. First, while the State promises a defendant that it will not use his silence against him and may not subsequently renege on that assurance, no similar promise is made with respect to a defendant’s voluntary statements, even if obtained in violation of Miranda. Hence, there exists no fundamental unfairness in allowing the latter to be used for impeachment purposes. Moreover, a direct inconsistency is of much greater probative value than is a defendant’s complete or partial silence. Furthermore, "a defendant’s decision to remain silent at the time of arrest is in and of itself an assertion of a basic constitutional privilege. Thus, to allow that silence to be used against a defendant is to place a burden upon the direct exercise of a fundamental right. The Miranda warnings, on the other hand, constitute a prophylactic device designed to prevent constitutional violations and to protect the rights of an accused. In the absence of any actual coercion, a statement made by a defendant who has not been informed of his rights is not inherently suspect, nor does the use of such a statement against a defendant penalize that defendant for the exercise of a constitutionally protected right” (People v Conyers, 49 NY2d 174, 182-183, supra). In sum, whenever the alleged inconsistency arises not from the defendant’s words, but from his failure to speak fully at a time when he was privileged to refrain from speaking at all, the prosecution may not use that claimed inconsistency to impeach the defendant’s trial testimony.

This is not to suggest that a defendant may never be cross-examined as to his failure to speak. Certainly, if the defendant himself puts the matter in issue, the trial court would not abuse its discretion by allowing the People to pursue the subject. For example, if a defendant on direct examination, or even in response to a legitimate prosecution query during cross-examination, were to testify that he told his exculpatory version of the facts to the police, the prohibition against the use of defendant’s silence would not apply. In such a case, the trial court would be empowered not only to allow cross-examination of the defendant on this point (see Doyle v Ohio, 426 US 610, 619-620, n 11, supra), but also to permit the People to provide direct evidence to the contrary in rebuttal (see, also, People v Wise, 46 NY2d 321, 328, supra). This is so because a defendant who is allowed, whether properly or not, to buttress his exculpatory trial testimony in such a way (see Richardson, Evidence [10th ed], § 519) creates an issue concerning the exact extent of his statements to the police and thereby opens the door to an inquiry which would otherwise be forbidden. In short, if a defendant seeks to rely on a claim that he made certain statements to the authorities, the prosecution normally should be free both to attempt to disprove the existence of those statements and to explore the circumstances surrounding their purported utterance.

No such exception to the general bar against use of a defendant’s silence is applicable to the instant case, for here the entire issue arose as a result of an improper prosecution attempt to use defendant’s postarrest silence to discredit his exculpatory trial testimony. It is true that defendant did eventually testify that he had told the officers his exculpatory story. Hence, in accord with the principle discussed above, had such a statement been made either on direct or in response to permissible cross-examination, the People legitimately could have sought to pursue the matter. As it is, however, this statement was elicited by the prosecution in the course of a wholly improper inquiry and accordingly cannot serve to justify that examination nunc pro tunc. The legitimacy of a particular line of cross-examination must be judged prospectively, not retroactively, in the sense that testimony obtained during a particular line of questioning may not be used as an ex post facto justification for that very line of inquiry if it was clearly improper at the time it was commenced. Thus, in the instant case, the fact that the prosecution’s improper cross-examination ultimately elicited testimony which could itself have served as a basis for legitimate cross-examination had it been made in a different context, does not negate the undeniable fact that the trial court erred, in allowing that initial inquiry (cf. United States v Mavrick, 601 F2d 921).

Nor do I find any merit in the People’s additional contention that the error in allowing the prosecution to cross-examine Savage about his silence was harmless. Although there was considerable evidence of guilt, there nonetheless remained a question of credibility for the jury as to the conflicting testimony concerning the details of the dispute between defendant and Johnson. In such a case, the assault upon defendant’s credibility may well have played a significant part in the jury’s ultimate determination that defendant was guilty. Especially is this true in light of the prosecutor’s summation, which emphasized defendant’s failure to tell the police his version of the facts following his arrest. Thus, I must conclude that there does exist a reasonable possibility that this constitutional error contributed to defendant’s conviction (see People v Crimmins, 36 NY2d 230).

In light of my conclusion that defendant is entitled to a new trial on this ground, I deem it unnecessary to consider any of defendant’s other contentions.

Accordingly, I vote to reverse the order appealed from and to remit the case to Supreme Court, Bronx County, for a new trial.

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

Order affirmed.

      . The weighty experiential support for this principle, Professor Wigmore has noted, has been recognized by masters of psychology as varied as Honoré Balzac and Daniel Webster (3 Wigmore, Evidence [Chadbourn rev ed], § 851, p 524, n 2).

      . It is also worth mention that the prosecutor’s question in any event could have had no more than cumulative effect; the juxtaposition of the inclusion of the exculpatory matter in the defendant’s own testimony, on the one hand, and its absence from the officer’s recounting of his postarrest conversation with the defendant, on the other, could hardly have been lost on the jury. Moreover, defense counsel’s failure to object to the pertinent questions put to the officer as to the completeness of the post-Miranda statement only emphasizes that the contrast between the policeman’s version and that the defendant was to give was bound to introduce a full-blown impeachment issue even if the defendant had not been cross-examined at all.

      . It goes without saying that, in such circumstances, the trial court, exercising its authority to supervise the cross-examination (see People v Ocasio, 47 NY2d 55, 60), may be expected to apply standards like those we enunciated in People v Dawson (50 NY2d 311, supra), adjusted of course, for the differences between a witness in the position of the one in that case and of a defendant in a case like the present one. Thus, for example, the court should, if requested, advise the jury that the defendant was under no legal obligation to have continued speaking, and should permit the defendant the opportunity to tender explanation for his omissions.

      . We also held in Conyers that use of silence, even for impeachment purposes only, was improper under both the Federal and State Constitutions regardless of whether the defendant has actually been given his Miranda warnings. Recently, the Supreme Court in Jenkins v Anderson (447 US 231) has indicated that if the defendant is not given Miranda warnings and does not otherwise specifically indicate that he is relying upon his right to remain silent, the use of that silence for impeachment purposes is not violative of the Federal Constitution. This holding, however, does not vitiate the conclusion we reached in Conyers that such cross-examination is violative of our State Constitution. In any event, since Savage was given Miranda warnings, Jenkins is not relevant to this appeal.

      . The People also suggest that the instant case does present an actual inconsistency in that the defendant told the officer following his arrest that he had shot Johnson during a "dispute”, whereas at trial defendant testified that he had shot Johnson during an attempted assault and robbery. I find this particular argument unpersuasive, for two reasons. First, there does not appear to be any necessary contradiction between the two accounts. That the "dispute” between defendant and Johnson was caused by a robbery attempt does not make it any less of a "dispute”. Moreover, the police officer did not specifically testify that the defendant actually used the word "dispute” to describe the incident; rather, that term was supplied by the prosecutor (cf. Anderson v Charles, 447 US —, 48 USLW 3819).


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    In the Matter of Anthony M. Scotto, Respondent, v Waterfront Commission of New York Harbor, Appellant.
    Argued May 27, 1980;
    decided July 1, 1980

      POINTS OF COUNSEL

      Jerome J. Klied and David B. Greenfield for appellant.
    The commission had ample authority to issue the subpoena herein. (Matter of Standard Fruit & S. S. Co. v Waterfront Comm. of N. Y. Harbor, 43 NY2d 11; Matter of Barone [Waterfront Comm. of N. Y. Harbor], 18 Misc 2d 1066, 8 AD2d 783, 7 NY2d 913; Matter of Erb Strapping Co. v Waterfront Comm. of N. Y. Harbor, 31 AD2d 101; Matter of CC Lbr. Co. v Waterfront Comm. of N. Y. Harbor, 31 NY2d 350; Matter of Edge Ho Holding Corp., 256 NY 374; Matter of Beneky v Waterfront Comm. of N. Y. Harbor, 42 NY2d 920, 434 US 940; Matter of Agesen v Catherwood, 26 NY2d 521; Matter of Julien v Lubin, 8 AD2d 704; Matter of Costello [Kreutzer], 202 Misc 51.)

      Paul B. Bergman, James M. La Rossa and Anthony Napolitano for respondent.
    In issuing the instant subpoena, the Waterfront Commission was acting in excess of its jurisdiction. The court below correctly reversed the order of Special Term and quashed the subpoena. (Hannah v Larche, 363 US 420; ITT v Electrical Workers, 419 US 428; Railway Clerks v Employees Assn., 380 US 650; Oklahoma Press Pub. Co. v Walling, 327 US 186; Genuine Parts Co. v Federal Trade Comm., 445 F2d 1382; Matter of Beneky v Waterfront Comm. of N. Y. Harbor, 54 AD2d 628, 42 NY2d 920; Matter of A’Hearn v Committee on Unlawful Practice of Law of N. Y. County Lawyers’ Assn., 23 NY2d 916; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227; Matter of Standard Fruit & S. S. Co. v Waterfront Comm. of N. Y. Harbor, 43 NY2d 11.)
   OPINION OF THE COURT

Jones, J.

A subpoena issued by the Waterfront Commission of New York Harbor to compel attendance of a witness at a nonmandated disciplinary hearing accorded one of the commission’s employees on charges of alleged improper conduct with a waterfront labor leader is not subject to challenge as beyond the authority of the commission.

Movant Anthony M. Scotto has applied to quash a subpoena issued to him by respondent Waterfront Commission of New York Harbor to compel his attendance as a witness at a hearing being conducted by the commission in connection with disciplinary charges filed against one of its employees, Alfonso Pelaez. Special Term’s denial of the motion was reversed by the Appellate Division, with one Justice dissenting. We now reverse the order of that court and confirm respondent’s authority to issue the challenged subpoena.

Respondent is an interstate agency created by a compact between the States of New Jersey and New York to regulate waterfront activities in the Port of New York District for the purpose, among others, of eliminating corrupt and illegal practices in waterfront employment (L 1953, ch 882, § 1, art I). In 1978 Pelaez, a long-time employee of the commission, held a position as supervising special agent in which capacity he had supervisory responsibility for investigator-special agents working in the Brooklyn sector of the port. Movant Scotto was then president of the local union of the International Longshoreman’s Association which had jurisdiction over Brooklyn longshoremen, and also held office in the International Association itself. He was also the subject of an investigation of illegal port activities by Federal authorities which included inquiry into unauthorized meetings and communications between Scotto and Pelaez, resulting in Pelaez’ likewise becoming a target of that investigation.

After Pelaez had appeared before the Federal Grand Jury and had then disclosed to his superiors the fact of his meetings with Scotto he was suspended on March 14, 1979 and thereafter was served with a notice of hearing on a charge of conduct unbecoming a commission employee and inimical to the best interests of the commission. Based on information received from the United States Attorney the charges were subsequently enlarged to include a charge that Pelaez had solicited the aid of Scotto and one or more longshoremen registered by the commission to obtain for himself another position at the commission or elsewhere. After Scotto had testified at his own trial on a Federal indictment in United States District Court concerning receipt of specific information from Pelaez with respect to unlawful payments made by a waterfront company manager to waterfront labor leaders, the disciplinary charges against Pelaez were again amended to incorporate this transfer of information, which Scotto had revealed.

So much of Pelaez’ disciplinary hearing as preceded Scotto’s trial was held in closed session because of the pending trial. In response to efforts by Pelaez to secure Scotto’s appearance as a witness at the hearing, Scotto’s attorney advised that his client would not be available until his own Federal criminal trial had concluded. When that proceeding ended, in December, 1979 the commission sought unsuccessfully to obtain Scotto’s voluntary appearance at the disciplinary hearing which was then to be continued in open session in view of the conclusion of the Scotto trial. Thereupon the commission issued the subpoena for Scotto’s appearance at the disciplinary hearing on December 18, 1979, which the Appellate Division has quashed, concluding that the commission’s subpoena power is limited to matters pertaining to its regulatory authority and to hearings that it is required to hold. Denominating the commission’s proceedings relating to the charges against Pelaez as matters of internal discipline only, not incident to the regulatory authority of the agency, and determining that because Pelaez was a nontenured employee no hearing was required before the imposition of discipline or dismissal, the court found that the issuance of the subpoena to Scotto was beyond the authority of the agency. Our conclusion is otherwise.

We begin with recognition of the fact that within the catalogue of its statutorily granted general powers the Waterfront Commission has been expressly vested with authority to issue subpoenas to compel the attendance of witnesses and the giving of testimony and the production of evidence (§ 9810, subd 8). The authorization stands independently, is without statutory limitation, and is necessarily of sufficient breadth to be employable in aid of another general power conferred by the same statutory section — i.e., the power conferred by subdivision 5 of section 9810 to appoint employees and fix their duties, qualifications and compensation, a power which we have construed as including the ancillary power to discipline and discharge such employees (Matter of Beneky v Waterfront Comm. of N. Y. Harbor, 42 NY2d 920, cert den 434 US 940). Indeed, movant and the court below have no difficulty in accepting an extension of the power of subpoena granted by subdivision 8 to implementation of the power of investigation and information gathering (incidental to waterfront activity regulation) conferred by subdivision 11. No reason is offered and none appears why the attachment of the subdivision 8 subpoena power to subdivision 11 activities should be accepted but a similar attachment to subdivision 5 activities (which, as here, may also involve the collection of testimony and evidence) be rejected.

It is not determinative that the commission may not have been required to provide a hearing with respect to disciplinary charges lodged against its employee Pelaez because the latter did not enjoy the rights of a tenured employee, if that be the case. Indisputably, even if not compelled to do so, the commission nevertheless had authority to give the advantage of a hearing on charges — here, of a grave and perhaps even stigmatizing nature — to an employee, and in aid of such hearing to implement what is frequently regarded as a prerequisite to an effective hearing, the compulsory production of evidence. Its importance is particularly highlighted in this instance in which both the commission and the charged employee Pelaez seek the testimony of the witness Scotto.

Finally, there is in this case a factor which makes the availability of the subpoena power all the more evident — the fact that the alleged wrongdoing of the employee under investigation is itself a matter which is clearly subject to investigation by the commission under its authority to investigate waterfront practices generally, ancillary to the exercise of its regulatory powers. The misconduct charged to Pelaez consisted of solicitation by him of assistance of a waterfront labor leader in influencing employment within the regulatory agency itself or elsewhere, presumably in the waterfront industry, as well as the provision of agency information to the same labor leader at a time when he was the object of a Grand Jury investigation into waterfront activities. Such alleged acts — even without the pendency of disciplinary proceedings against the misbehaving agency employee — would themselves have invoked the general investigatory authority of the agency under subdivision 11 of section 9810. Concededly, the power of subpoena is an available tool in the exercise of that authority.

It was therefore error for the Appellate Division to have granted the motion to quash. The order should be reversed, with costs, and the motion to quash the subpoena denied.

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

Order reversed, etc.

      . The text of the compact included in chapter 882 of the Laws of 1953 is contained in sections 9801-9873 of McKinney’s Unconsolidated Laws (Book 65). For convenience, future references to provisions of the statute will be to the sections of the Unconsolidated Laws.

      . As relevant to this discussion, section 9810 provides:
      "§ 9810 General powers and duties
      "In addition to the powers and duties elsewhere prescribed in this compact, the commission shall have the power:
      * ** *
      "5. To appoint such officers, agents and employees as it may deem necessary, prescribe their powers, duties and qualifications and fix their compensation and retain and employ counsel and private consultants on a contract basis or otherwise;
      * * *
      "8. By its members and its properly designated officers, agents and employees, to administer oaths and issue subpoenas throughout both states to compel the attendance of witnesses and the giving of testimony and the production of other evidence;
      * * *
      "11. To make investigations, collect and compile information concerning waterfront practices generally within the port of New York district and upon all matters relating to the accomplishment of the objectives of this compact”.


author: Jones, J. Jasen, J.

text:
    Elliott H. Press et al., Appellants, v County of Monroe et al., Respondents.
    Argued May 30, 1980;
    decided July 1, 1980

      POINTS OF COUNSEL

      Warren B. Rosenbaum for appellants.
    I. Plaintiffs’ complaint seeks review of a legislative act, the constitutionality of which may only be challenged in a plenary action for declaratory judgment. (Matter of Reese v Lombard, 47 AD2d 327; Matter of Ames Volkswagen v State Tax Comm., 47 NY2d 345; Boryszewski v Brydges, 37 NY2d 361; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Matter of Kovarsky v Housing & Dev. Admin. of City of N. Y., 31 NY2d 184; Matter of Neddo v Schrade, 270 NY 97; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400.) II. Neither statute nor the county through local legislation or charter provides for an exclusive method to review legislative actions taken pursuant to section 271 of the County Law. (Richfield Oil Corp. of N. Y. v City of Syracuse, 287 NY 234; Lewis v City of Lockport, 276 NY 336; Oak Hill Country Club v Town of Pittsford, 264 NY 133; New York Cent. & Hudson Riv. R. R. Co. v City of Yonkers, 238 NY 165; Matter of Marion Lodge No. 926, F. & A. M. v Rich, 178 Misc 219; Lyons & Co. v Corsi, 3 NY2d 60; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 44 AD2d 219, 37 NY2d 371; Saggolf Corp. v Town Bd. of Town of Bolton, 63 AD2d 428; Matter of Harry Raker, Inc. v Board of Representatives of County of Dutchess, 74 Misc 2d 708.) III. The exhaustion of administrative remedies doctrine is inapplicable to the case at bar. (Hurlbut v Whalen, 58 AD2d 311; Imperial Realty Co. v City Rent Agency, 71 Misc 2d 688; Slater v Gallman, 38 NY2d 1; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 44 AD2d 219, 37 NY2d 371.) IV. A sewer charge special assessment which discriminates between two sets of similarly situated district uses by imposing a more onerous taxing formula for one, absent a rational basis reasonably related to the purpose of the enabling statute, is unconstitutional. (Matter of Vanderbilt, 281 NY 297; Shapiro v City of New York, 32 NY2d 96; Allied Stores of Ohio v Bowers, 358 US 522; Society of Plastics Ind. v City of New York, 68 Misc 2d 366; Borden’s Co. v Baldwin, 293 US 194; Royster Guano Co. v Virginia, 253 US 412.) V. A factual hearing offers the county an appropriate method to salvage constitutionality where its legislative classification has been found by the court to be void on its face. (Matter of Four Maple Dr. Realty Corp. v Abrams, 2 AD2d 753; Traux v Corrigan, 257 US 312; Defiance Milk Prods. v Du Mond, 309 NY 537; Farrington v Pinckney, 1 NY2d 74.) VI. Where the presumption of constitutionality has been rebutted, the burden of proof is properly shifted to the party seeking to uphold the legality of the legislation under review. (People ex rel. Wallington Apts. v Miller, 288 NY 31; St. Andrassy v Mooney, 262 NY 368; Potts v Pardee, 220 NY 431; Mobil Oil Corp. v Tax Comm. of City of N. Y., 60 AD2d 910; Dromgoole v White, 19 AD2d 567; Werking v Amity Estates, 2 NY2d 43; Thompson v Wallin, 301 NY 476; Matter of Seigle, 289 NY 300.)

      John D. Doyle, County Attorney (William D. Sheldon, III, and Sergeant W. Wise of counsel), for respondents.
    I. Collateral attack by declaratory action of an assessment roll is permitted only when the complaint alleges the unconstitutionality of the enabling statute or the lack of jurisdiction of the assessing unit in preparing the assessment rolls. (New York Cent. & Hudson Riv. R. R. Co. v City of Yonkers, 238 NY 165; Lewis v City of Lockport, 276 NY 336; Richfield Oil Corp. of N. Y. v City of Syracuse, 287 NY 234; Dun & Bradstreet v City of New York, 276 NY 198; Matter of Marion Lodge No. 926, F. & A. M. v Rich, 178 Misc 219; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371.) II. Appellants’ complaint does not challenge the constitutionality of section 271 of the County Law which permits the imposition of "special assessments.” III. The court below as a matter of law determined that appellants challenge only the rationality of the classifications used to prepare the 1973, 1975 and 1976 assessment rolls not the fundamental jurisdiction of the district to assess. (Van Vooris v County of Monroe, 262 App Div 950, 288 NY 138; Buffalo Hebrew Christian Mission v City of Syracuse, 33 AD2d 152; Young Women’s Christian Assn. of City of N. Y. v City of New York, 217 App Div 406, 245 NY 562; Zinder v Board of Assessors of County of Nassau, 66 Misc 2d 150; C. H. O. B. Assoc. v Board of Assessors of County of Nassau, 45 Misc 2d 184, 22 AD2d 1015, 16 NY2d 779; Matter of Bertholf v Cisco, 72 Misc 2d 901, 45 AD2d 787; Van Deventer v Long Is. City, 139 NY 133.) IV. Appellants’ failure to avail themselves of their rights at public hearing or to commence a timely article 78 review cannot be remedied by ignoring the substance of section 271 of the County Law. (New

      York Cent. & Hudson Riv. R. R. Co. v City of Yonkers, 238 NY 165; Van Deventer v Long Is. City, 139 NY 133; Matter of Nolan v Bureau of Assessors of N. Y. City Fin. Admin., 31 NY2d 90; Matter of Kermani v Town Bd. of Town of Guilderland, 47 AD2d 694; Larkin v Farrell, 52 AD2d 1069; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371; Slater v Gallman, 38 NY2d 1.) V. The Special Term of Supreme Court erred in ordering appellants to demonstrate at trial by the fair preponderance of credible evidence the constitutionality of the acts of respondent district and county legislature. (Defíance Milk Prods. Co. v Du Mond, 309 NY 537; Wiggins v Town of Somers, 4 NY2d 215.)
   OPINION OF THE COURT

Jones, J.

An action for a judgment declaring invalid the assessment rolls of a sewer district as affirmed and adopted by the county legislature pursuant to section 271 of the County Law on the ground that the underlying rate schedule was unconstitutional is time-barred unless instituted within four months after such affirmation and adoption.

Plaintiffs are the owners of property improved with garden apartments, known as "Poplar Gardens Apartments”, located in the Town of Gates, Monroe County, within the boundaries of defendant Gates-Chili-Ogden Sewer District. In the preparation of the assessment roll for the sewer district for the year 1973, pursuant to section 271 of the County Law, the administrative board of the sewer district on August 16, 1972 adopted a proposed amended rate schedule which imposed a flat dollar charge per unit on structures containing one, two or three dwelling units but classified apartment, duplex and townhouse complexes (which included any structure or series of structures located within a single lot or tax account number containing four or more dwelling units) differently. As to such apartment complexes, the number of units assigned for computation of the sewer assessment was initially determined on the basis of assigning a half unit to an efficiency (studio and one bedroom), three quarters of a unit to a two-bedroom apartment, and a full unit to a three-bedroom apartment. The sewer assessment was then computed by multiplying the number of assigned units so determined by the flat dollar charge, unless the particular apartment complex consumed a total of more than 60,000 gallons per such unit per fiscal year, in which event the particular complex would be charged on the basis of water actually consumed, i.e., the number of units would be determined by dividing the gallons of water consumed by 60,000, and the number of such units would then be multiplied by the flat dollar rate.

In determining the 1973 sewer assessment on plaintiffs’ property the sewer board converted the 135 garden apartments to 113 assigned units, which, multiplied by the flat dollar rate for that year, produced a proposed sewer assessment of $11,092. The sewer district assessment roll containing this figure was filed with the Monroe County Legislature on September 6, 1972, and after a public hearing on September 30, 1972 was affirmed and adopted by the county legislature on October 11, 1972 in conformity with section 271 of the County Law.

In 1974 the administrative board of the sewer district, employing the same rate schedule with a revised flat dollar charge, prepared the assessment roll for 1975. Inasmuch, however, as the water consumption on plaintiffs’ property had exceeded the critical figure, the assessment this time was based on 9.6 million gallons of water consumed, which was divided by 60,000 to arrive at a sewer assessment based on 160 units, resulting in a tax levy of $20,001. The 1975 assessment roll with this figure was filed with the county legislature on September 12, 1974 and after a public hearing was affirmed and adopted by it on October 22, 1974.

The following year, in similar fashion, the administrative board of the sewer district prepared the assessment roll for 1976. Plaintiffs’ assessment was again based on water actually consumed, this time 8.38 million gallons, which was divided by 60,000 gallons to arrive at 140 units producing a tax levy of $17,501. The 1976 assessment roll including this figure was filed with the county legislature on September 16, 1975, which after a public hearing on October 4, 1975 affirmed and approved the roll as filed on October 7, 1975.

On June 28, 1978 plaintiffs commenced the present action for a declaration that the 1973, 1975 and 1976 assessment rolls were void by reason of the unconstitutionality of the underlying rate schedule which treated apartment complexes differently from other dwelling units within the sewer district. Respondents moved to dismiss the complaint under CPLR 3211 (subd [a], par 5) on the ground that the action was barred by the applicable Statute of Limitations, which they asserted was four months (CPLR 217) inasmuch as the challenged determinations could have been reviewed in a CPLR article 78 proceeding.

Special Term denied the motion to dismiss, treated it as a motion for summary judgment and, pursuant to CPLR 3211 (subd [c]) ordered an immediate trial on the issue of asserted unconstitutionality of the underlying rate classification. The Appellate Division reversed and dismissed the action on the ground that it was not commenced within four months after the adoption of the assessment rolls for the three years in question. There should be an affirmance.

The disposition of the appeal in this case turns on the identification of the Statute of Limitations that is applicable to this declaratory judgment action. We agree that it is the four-months statute of CPLR 217 and accordingly, that this action was properly dismissed as time-barred.

As we have recently stated in Solnick v Whalen (49 NY2d 224, 229-230): "In order to determine therefore whether there is in fact a limitation prescribed by law for a particular declaratory judgment action it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought * * * If that examination reveals that the rights of the parties sought to be stabilized in the action for declaratory relief are, or have been, open to resolution through a form of proceeding for which a specific limitation period is statutorily provided, then that period limits the time for commencement of the declaratory judgment action. In that event there is a limitation specifically prescribed by law and the catch-all provision of CPLR 213 (subd 1) is not applicable. If the period for invoking the other procedural vehicle for relief has expired before the institution of the action for declaratory relief, the latter action also is barred.”

In this case, as in Solnick, the controversy between these parties could and, as the Appellate Division noted, should more properly have been resolved in a proceeding instituted under CPLR article 78 to review each determination of the county legislature when it affirmed and approved the assessment roll of the sewer district for each particular year. The circumstance that the action sought to be reviewed is that of a legislative body, here the Monroe County Legislature, does not stamp that action as "legislative” for purposes of determining whether challenges to the constitutionality of its action may be raised by means of an article 78 proceeding or whether recourse must necessarily be had for such purpose to an action for a declaratory judgment.

It is to be observed that we have had frequent occasion to state that an article 78 proceeding is not the proper vehicle to challenge the constitutionality of legislative enactments. In most of the cases the application of this principle has been of no practical significance inasmuch as the courts, in reliance on CPLR 103 (subd [c]) have promptly remedied any procedural infirmity by converting the article 78 proceeding to a declaratory judgment action or other appropriate proceeding and thereupon marched on to the merits. (E.g., Matter of Ames Volkswagen v State Tax Comm., 47 NY2d 345, 348 [article 78 challenge to constitutionality of Tax Law, § 1137-A, converted to declaratory judgment action]; New York Public Interest Research Group v Steingut, 40 NY2d 250, 254 [article 78 challenge to constitutionality of chapter 460 of the Laws of 1975 converted to declaratory judgment action]; Matter of Friedman v Cuomo, 39 NY2d 81, 83 [article 78 proceeding challenging constitutionality of chapters 29 and 30 of the Laws of 1976 converted to special proceeding under Election Law, § 330]; Matter of Merced v Fisher, 38 NY2d 557, 559. [article 78 proceeding challenging constitutionality of Vehicle and Traffic Law, § 332, converted to declaratory judgment action]; Boryszewski v Brydges, 37 NY2d 361 [article 78 challenge to Retirement and Social Security Law, § 80-a, converted to declaratory judgment action]; Matter of Du Bois v Town Bd. of Town of New Paltz, 35 NY2d 617, 621 [article 78 proceeding challenging constitutionality of Highway Law, § 277, converted to declaratory judgment action]; Matter of Kovarsky v Housing & Dev. Admin. of City of N. Y, 31 NY2d 184, 191-193 [article 78 proceeding challenging constitutionality of New York City Administrative Code, § YY51-6.0, subd c, par [9], cl [a], converted to declaratory judgment action]; Matter of Gold v Lomenzo, 29 NY2d 468, 476 [article 78 proceeding challenging constitutionality of Real Property Law, § 441-c, converted to declaratory judgment action]; cf. Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400, 406-409 [article 78 proceeding challenging general rate-fixing order of administrative agency as "excessive, arbitrary and capricious” converted to declaratory judgment action]). In one instance the court proceeded to consider the merits of a constitutional challenge to chapter 1012 of the Laws of 1971 without stopping to convert the article 78 proceeding to a declaratory judgment action (Matter of 241 East 22nd St. Corp. v City Rent Agency, 33 NY2d 134, 142, n 2). It appears that no Statute of Limitations issue was presented in any of these cases (see Solnick v Whalen, 49 NY2d 224, 232, n 4, supra). In none of these cases has the plaintiff suffered in consequence of having initially chosen the inappropriate procedural vehicle for the resolution of his claim. Compare, however, Matter of Overhill Bldg. Co. v Delany (28 NY2d 449), in which, after concluding that the article 78 proceeding was improper, the court was not able to convert the proceeding to a declaratory judgment action because of the absence of necessary parties. No case has been found in which the court failed to come to the plaintiffs rescue by exercising its CPLR 103 (subd [c]) powers of conversion where it was possible to do so.

In only two cases prior to the present does it appear that a Statute of Limitations issue has been raised. In Matter of Jewish Mem. Hosp. v Whalen (47 NY2d 331 [article 78 proceeding challenging retroactive application and substance of hospital reimbursement rates fixed by Commissioner of Health]) it was asserted that the four-month period of limitations under CPLR 217 had expired, but we held that the action had been instituted within that period. Then in Solnick v Whalen (49 NY2d 224, supra [action for declaratory judgment challenging determination of Commissioner of Health adjusting nursing home reimbursement rates for lack of procedural due process]) we held the declaratory judgment action barred because the available counterpart article 78 proceeding would have been barred by the four-month Statute of Limitations.

Here, as in Solnick, the issues sought to be raised by plaintiffs in the declaratory judgment action could have been raised by them in a proceeding instituted under article 78. The action of the Monroe County Legislature sought to be reviewed was not "legislative” in the precise sense of that term; even in a technical sense the action in each year was taken by adoption of a resolution, not enactment of a local law. No statutory provision was enacted; no action was taken which would have any carry-over effect beyond the particular assessment year. The underlying property classification plan to which plaintiffs direct their constitutional attack was not itself adopted or enacted; no repealer would have been required had the sewer district elected to change to another rate schedule in any following year. By whatever term of classification the action of the county legislature might be described, e.g., administrative, quasi-administrative or otherwise, judicial review could properly have been sought and obtained under article 78.

That being the case, inasmuch as the article 78 proceeding would have been time-barred in June, 1978 when the present declaratory judgment action was commenced, this action, too, was time-barred (Solnick v Whalen, 49 NY2d 224, supra).

As in Solnick, so here too, this result is consonant with sound public policy. Inasmuch as any unit of municipal government is dependent for operating funds on the collection of taxes and assessments and in turn such collection depends on the apportionment of the lump-sum revenue required among the many taxpayers, all considerations of practicality and fairness dictate that the necessary allocation of tax burden be concluded speedily. To permit taxpayers to defer their challenges for a period of several years would be to expose the fiscal planning of the municipal unit to the risk of wholly unacceptable retroactive disruption. (Cf. New York Cent. & Hudson Riv. R. R. Co. v City of Yonkers, 238 NY 165, 179; Mundy v Nassau County Civ. Serv. Comm., 44 NY2d 352, 359, Breitel, Ch. J., dissenting.)

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

Jasen, J.

(dissenting). From a practical standpoint, I find the majority’s holding desirable, for I, too, recognize that considerations of sound public policy mandate that a short Statute of Limitations be applied when a party seeks to challenge assessments and the like. The orderly administration of government requires nothing less. However, in reaching this result, the majority engages in legalistic sleight of hand; certainly, the law can call a horse a cow, but no matter how adroit the attempt at definitional equality, the two remain distinct animals. Here, by analogizing the adoption of the assessment roll by the Monroe County Legislature to an administrative act, this court disregards legal precedent and common understanding in favor of a certain result. No matter how laudable the goal, this I would not do. The Legislature possesses the power to impose a four-month period of limitations when challenging legislative acts, and it is unwise for this court to cure this legislative oversight by judicial legerdemain.

Well settled is the rule of law in this State that a CPLR article 78 proceeding is not available to challenge a legislative act. (E.g., Matter of Ames Volkswagen v State Tax Comm., 47 NY2d 345, 348; New York Public Interest Research Group v Steingut, 40 NY2d 250, 254, n 1; Matter of Friedman v Cuomo, 39 NY2d 81, 83; Matter of Kovarsky v Housing & Dev. Admin. of City of N. Y, 31 NY2d 184, 191-192; Matter of Gold v Lomenzo, 29 NY2d 468, 476, n 4; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400, 407; see, generally, 8 Weinstein-Korn-Miller, NY Civ Prac, par 7801.02.) The majority, obviously recognizing this established body of law, seeks to circumvent its impact by concluding that "[t]he action of the Monroe County Legislature sought to be reviewed was not 'legislative’ in the precise sense of that term” (p 703). With reluctance, I cannot agree and cast my vote for reversal.

Concededly, the delineation between administrative and legislative acts is often blurred, especially in the field of local government. But this observation does not relieve the courts of applying the proper label to governmental enactments, especially where the distinction is not blurred.

Here, the sewer board — the only administrative body involved — possessed the limited power of recommendation. As the provisions of section 271 of the County Law make explicit, the county legislature retains the authority to either accept, reject, or alter the proposal submitted by the sewer board. As stated, "[a]t the time and place specified, the board of supervisors shall meet and hear and consider any objections to the assessment roll, and may change or amend the same as it deems necessary or just so to do and may affirm and adopt the same as originally proposed or as amended or changed, or they may annul the same and order the administrative head or body to proceed anew and to prepare another roll or the board of supervisors may prepare such new roll.” (County Law, § 271, subd 1.)

In light of the broad power vested in the county legislature and the uniform application of the rate schedules adopted, I find it well-nigh impossible to classify the actions of the Monroe County Legislature as anything but legislative. Hence, CPLR article 78 review would not be available to plaintiffs to challenge the constitutionality of the assessment rolls of their sewer district, and a six-year — not four-month — period of limitations should govern plaintiffs’ declaratory judgment action.

Nor does our recent opinion in Solnick v Whalen (49 NY2d 224) dictate, or even intimate, that a different result be reached. In Solnick, we held that the four-month period of limitations governs an action for declaratory judgment when the resolution of the parties’ rights could be had in a CPLR article 78 proceeding. The very predicate for this sound rule of law is, however, that an article 78 proceeding be available to the party seeking legal redress. Inasmuch as plaintiffs are challenging a legislative act, this predicate is simply not satisfied in this case.

My disagreement with the majority should not be read as an outright sanction of tardy legal actions, for if the majority’s result could have been supported by what I view to be sound legal analysis, I certainly would have concurred wholeheartedly. However, I feel constrained by legal precedent and sincerely believe that the result reached by the majority today is best reserved for legislative action.

As to the underlying merits of this appeal — not reached by the majority due to its disposition — it suffices to say that I agree completely with the dissenting Justices below. There was simply no administrative remedy for plaintiffs to pursue.

Accordingly, I would reverse the order of the Appellate Division, reinstate plaintiffs’ complaint and direct a trial of the issues presented.

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

Order affirmed.

       Note that we do not say that a declaratory judgment is an improper procedural means to present the issues for judicial review. We do say that that remedy is time-barred here.
      In view of the ground on which we place our affirmance, it is not necessary to reach or consider the possible application of the doctrine of exhaustion of administrative remedies addressed at the Appellate Division.