author: Chief Judge Wachtler.

text:
    Mayra Moreno et al., Appellants, v City of New York, Respondent.
    Argued March 17, 1987;
    decided April 28, 1987

      POINTS OF COUNSEL

      Ronald D. Degen and Paul R. Schaap for appellants.

      Doron Gopstein, Acting Corporation Counsel (Kristin M. Helmers and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Wachtler.

The question on this appeal is whether a replevin action to recover property seized by the City of New York in connection with a criminal prosecution may be maintained when the owner has not demanded return of the property within 90 days of the dismissal of the criminal charges.

On December 15, 1982 plaintiff, Mayra Moreno, was arrested in New York City and charged with promoting gambling and possession of gambling records. At the time of her arrest the police seized $156,150 which was delivered to the property clerk of the New York City Police Department. On March 8, 1983, while the criminal charges were still pending, the plaintiff served a notice of claim on the City. The criminal charges against the plaintiff were dismissed on September 19, 1983.

Six months later plaintiff assigned her rights in the seized funds to her attorney, Paul Lieber. On March 19, 1984 Lieber demanded that the Police Department return the money. On March 27 the department informed Lieber by letter that his demand was untimely "pursuant to New York City Administrative Code § 435-4.0 and McClendon v. Rosetti, 460 F. 2d 111.” The letter further states: "The law requires that a claimant make his claim within 90 days from the date of the disposition of the criminal proceeding or the date of the district attorney’s release whichever is sooner. Since this was not done the funds were deemed abandoned and paid over to the City of New York.”

On August 29, 1984 plaintiffs commenced this common-law replevin action to recover the funds and later served a second notice of claim. The City moved to dismiss, principally on the ground that the demand was untimely, as earlier stated in the Police Department letter. The trial court granted the City’s motion and dismissed the complaint for failure to state a cause of action (CPLR 3211 [a] [7]). The court stated: "under the Administrative Code and McClendon the right to claim possession of the seized property was lost in the absence of a timely demand (within ninety days after the criminal charges were dismissed). The ninety day period expired on or about December 19, 1983. No demand was made until March 19, 1984 * * * Thus, the complaint is legally insufficient for failure to allege a timely demand upon the police property clerk.”

The Appellate Division affirmed, without opinion (120 AD2d 997), and we granted the plaintiffs’ motion for leave to appeal to this court.

The Administrative Code of the City of New York provides that the property clerk of the New York City Police Department is authorized to take custody of all "property or money taken from the person or possession of a prisoner” including money suspected of being the proceeds of any "form of illegal gambling activity” (§ 435-4.0 [b] [now § 14-140 (b)]). It also provides that property seized by the police "that shall remain in the custody of the property clerk for a period of three months without a lawful claimant entitled thereto shall, in the case of moneys, be paid into the [Police Pension Fund]” (§ 435-4.0 [e]). Under the Code, a person shall not be deemed to be a "lawful claimant” if he used the money for illegal purposes or "derives his claim in any manner from or through” a person who did (§ 435-4.0 [e]). The Code also places on the claimant the burden of proving title and lawful use of the money in any action or proceeding against the property clerk (§ 435-4.0 [f]).

There are several ways in which a person whose property has been seized by the police may regain possession. The traditional remedy is the common-law action in replevin (Boyle v Kelley, 42 NY2d 88, 91; Simpson v St. John, 93 NY 363). In cases where the property clerk has refused to honor a demand, an article 78 proceeding to review the refusal is also available (Boyle v Kelley, supra, at 91; Matter of Caggiano v Frank, 78 Misc 2d 187, affd 44 AD2d 828). It appears that prior to 1972 it was the City’s general practice to require those requesting return of seized property to commence a suit to recover it.

In McClendon v Rosetti (supra), a Federal civil rights class action, the Second Circuit Court of Appeals held that this practice violated the owners’ due process rights. Accordingly, the Federal courts prescribed a procedure which permits the owners to regain their property upon demand, without having to resort to court proceedings (McClendon v Rosetti, 369 F Supp 1391). Under this procedure, the City must return the property if the owner makes demand within 90 days of the disposition of criminal charges, or a release issued by the District Attorney, "whichever is sooner.” If the City believes the claimant is not a "lawful claimant,” it must commence suit to retain the property, within 10 days of the demand. The City is also required to provide written notice of the-demand procedure to those from whom the property has been seized. In subsequent cases the Federal courts have held that a person who receives the notice but fails to demand return of the property within the 90 days, may not maintain a civil rights action against the City (Cooper v Police Prop. Clerk, 416 F Supp 49; Harris v City of New York, 99 FRD 183).

The 90-day demand rule established in the McClendon case purports to add a new Federal procedure to those available under State law. Those who demand return of their property within the 90 days would be entitled to immediate possession without having to commence a court action. Those who fail to make a demand within that period would lose their right to immediate return, or to seek relief in Federal court, and would have to resort to the usual State remedies.

The City apparently now concedes that the McClendon decree did not abolish the plaintiffs’ right to commence an article 78 proceeding or an action in replevin. The City contends, however, that the "plaintiffs have focused on the wrong issue * * * What is in fact at issue in this case is the effect of the Administrative Code’s directive permitting the Property Clerk to dispose of any property unclaimed after three months. Administrative Code § 435-4.0 (e).” It is the City’s contention that this section gives it the right to possession of unclaimed property after it has been held for three months. The City further urges that having not claimed the funds within three months, by either demanding their return or instituting suit, plaintiffs "lost any right of possession by operation of law.” This argument is without merit. The section cited simply fixes the point at which the property clerk may be relieved of the responsibility of retaining the moneys in custody, and provides for the transfer of the money from one fund to another at the termination of the statutory period. It does not impose an affirmative obligation on the owner to demand the money within 90 days of the dismissal of the criminal charges or impose any penalty for failure to do so. It does not, in short, impair the owner’s common-law right to demand return of the property seized or its value in a replevin action.

Accordingly, the order of the Appellate Division should be reversed and defendant’s motion to dismiss the complaint denied.

Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Alexander taking no part.

Order reversed, with costs, and defendant’s motion to dismiss the complaint denied.

      .The terms of the Federal decree have not been published but are reproduced in the record on appeal in this case at 135-143.

      .In light of this disposition there is no need to consider whether the Code provision would be valid if it purported to extinguish a property owner’s rights as the City urges.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    S & S Hotel Ventures Limited Partnership, Appellant, v 777 S. H. Corp., Respondent.
    Argued March 16, 1987;
    decided April 30, 1987

      POINTS OF COUNSEL

      Allen Green and Jacob H. Zamansky for appellant.

      Jonathan M. Herman and Scott T. Tross for respondent.
   OPINION OF THE COURT

Kaye, J.

The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, not binding authority, for courts in determining whether a party’s law firm, at its adversary’s instance, should be disqualified during litigation. Courts must, in addition, consider such factors as the party’s valued right to choose its own counsel, and the fairness and effect in the particular factual setting of granting disqualification or continuing representation. Concluding that the court below failed to exercise any discretion, and that disqualification was not required by the circumstances presented, we reverse the Appellate Division order and deny defendant’s motion.

Plaintiff (S & S Hotel Ventures Limited Pártnership) owned a hotel and office building complex in Houston, Texas. In February 1981, in exchange for a $15 million loan from defendant (777 S. H. Corp.), plaintiff executed a promissory note secured by a deed of trust, including a provision that the loan would fall due immediately if plaintiff transferred title without consent but that defendant would not unreasonably withhold or delay its consent. Beginning in late 1982, and culminating in a sale of the property in March 1983, plaintiff proposed two purchasers and communicated with defendant in an effort to secure its consent. In the present action, plaintiff alleges that defendant unreasonably withheld and delayed its consent so as to favor one of the proposed purchasers and also to secure better terms for itself, ultimately resulting in the sale of the property at a greatly reduced price.

The complaint — charging that defendant breached its contract and tortiously interfered with plaintiffs contracts to sell the properties — was served March 22, 1984; there are no counterclaims. Nine months after the action was commenced, on January 3, 1985, after Special Term and the Appellate Division denied defendant’s motion to dismiss the tort claim, and after an exchange of documents and plaintiffs answers to defendant’s interrogatories, defendant moved to disqualify plaintiffs counsel, the firm of Bell, Kalnick, Beckman, Klee & Green, a firm of more than 20 attorneys, on the ground that Herman Sassower, "of counsel” to the firm, and Stephen Seldin, one of its real estate partners, "ought to be called as witnesses at trial on behalf of plaintiff.” No question is raised regarding client confidences and secrets (Code of Professional Responsibility Canon 4).

Special Term ordered disqualification of the law firm on the ground that Sassower ought to be called as plaintiff’s witness, finding that he had knowledge of the circumstances surrounding the deed of trust that "would be material in determining the intent of the parties regarding the alleged unreasonable withholding or delay in consenting to a transfer.” While itself believing that the materiality of such knowledge would be "questionable” in the present action, the court nonetheless held that, because all doubts were to be resolved against continuing representation, both Sassower and the entire firm should be disqualified. The court rejected plaintiff’s allegation of financial hardship, because financial hardship was "insufficient under DR 5-101 (B) (4) to avoid such disqualification if Herman Sassower 'ought to be called as a witness’ ”. Acceding to plaintiffs request, however, the disqualification was limited to trial (see, Norman Norell, Inc. v Federated Dept. Stores, 450 F Supp 127). The Appellate Division, over the dissent of two Justices, affirmed, agreeing that Sassower ought to be called as a witness because of his intimate involvement in the events in issue, and therefore the firm must be disqualified. The court further found that Special Term had struck an appropriate balance by limiting the disqualification to trial, and it granted leave to appeal on a certified question (CPLR 5713).

The following background facts are taken from the parties’ affidavits. Sassower is "of counsel” to Bell Kalnick, which he describes as a facilities-sharing arrangement; he claims that he maintains an "independent legal practice” and on a case-by-case basis also uses the law firm. Until January 1, 1982 Sassower was plaintiff’s sole general partner. As such, on February 17, 1981, he executed the loan agreement on plaintiff’s behalf. Sassower was succeeded as general partner by S & S Realty, Inc., owned by his brother, Philip Sassower (as president) and Lawrence Schneider. Between January 1, 1982 and March 1983, Sassower in his affidavit in opposition to disqualification states that he served plaintiff only as its lawyer. Both Sassower and Seldin — neither a litigator — are said to have participated in negotiating the loan agreement that was allegedly breached as well as plaintiff’s sale agreements that were allegedly interfered with. Sassower additionally signed several documents on plaintiff’s behalf.

While acknowledging their participation, plaintiff urges that neither Sassower nor Seldin has firsthand knowledge of the disputed facts regarding the key issue in the case — defendant’s wrongful refusal or delay in consenting to the sale. Plaintiff insists that only Philip Sassower has firsthand knowledge pertinent to defendant’s unlawful purposes in refusing or delaying consent. Herman, Philip and the firm have each submitted affidavits attesting that the relevant conversations with defendant’s representatives regarding sale of the property and defendant’s consent were with Philip, not Herman; that Philip was the person who repeatedly requested defendant’s consent and knows of defendant’s wrongful conduct; and that it will present its case at trial through documents and the testimony of Philip Sassower. Both plaintiff and counsel represent in their affidavits that neither Herman Sassower nor Stephen Seldin has participated in the conduct of the litigation, nor will they, and that the firm has no intention or need to call either of them as a witness at trial. Finally, plaintiff emphasizes that disqualification will impose hardship arising out of the need to duplicate hundreds of hours of legal work, and delay the litigation.

Plaintiff thus adamantly resists disqualification of its law firm, declaring that Sassower will not be a witness; defendant with equal fervor argues that Sassower has relevant knowledge of the negotiation of the loan agreement, its meaning and intent, and the communications between the parties regarding consent, and therefore must be a witness.

The majority below found that Sassower ought to be a witness because of his involvement in the relevant transactions, and it then simply imposed disqualification of the firm as the mandated consequence under the Code of Professional Responsibility. We conclude that this was error.

The Code of Professional Responsibility establishes ethical standards that guide attorneys in their professional conduct, and its importance is not to be diminished or denigrated by indifference (see, Matter of Weinstock, 40 NY2d 1, 6). When raised in litigation, however — which in addition to matters of professional conduct directly involves the interests of clients and others — the Code provisions cannot be applied as if they were controlling statutory or decisional law. "When we agree that the Code applies in an equitable manner to a matter before us, we should not hesitate to enforce it with vigor. When we find an area of uncertainty, however, we must use our judicial process to make our own decision in the interests of justice to all concerned.” (Foley & Co. v Vanderbilt, 523 F2d 1357, 1360 [Gurfein, J., concurring].)

Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. Disqualification denies a party’s right to representation by the attorney of its choice (see, Matter of Abrams [John Anonymous], 62 NY2d 183). The right to counsel of choice is not absolute and may be overridden where necessary — for example, to protect a compelling public interest — but it is a valued right and any restrictions must be carefully scrutinized (id., at 196). Moreover, we cannot ignore that where the Code of Professional Responsibility is invoked not in a disciplinary proceeding to punish a lawyer’s own transgression, but in the context of an ongoing lawsuit, disqualification of a plaintiff’s law firm can stall and derail the proceedings, redounding to the strategic advantage of one party over another (see, e.g., Allegaert v Perot, 565 F2d 246; see also, Note, The Advocate-Witness Rule: If Z, Then X. But Why?, 52 NYU L Rev 1365). Already more than three years have elapsed since the present action was instituted.

We recognize that the motion involves other interests as well. The Code provisions pertaining to disqualification are grouped under Canon 5: "A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client.” Thus, while many diverse justifications have been offered, the Code has rooted disqualification of a lawyer-witness in the concept that a lawyer’s professional judgment should be exercised for the client’s benefit, free of compromising influences and loyalties. A trial lawyer who functions also as a trial witness is thought to be more easily impeachable for interest, and thus a less effective witness for the client (Code of Professional Responsibility EC 5-9). By the same token, the interest of the adversary in a fair trial is said to be threatened in that opposing counsel may be handicapped in challenging the credibility of a lawyer-witness who also appears as an advocate in the case (id.) Recognizing that the roles of an advocate and of a witness are inconsistent, and that it is from a public image point of view "unseemly” for a lawyer in a trial also to argue his own credibility as a witness, the Code of Professional Responsibility directs that a lawyer who ought to be called as a witness on behalf of his client shall withdraw from the conduct of the trial and his firm shall not continue representation in the trial (Code of Professional Responsibility DR 5-102 [A]; DR 5-105 [D]; see also, Tru-Bite Labs v Ashman, 54 AD2d 345).

Considering all the significant interests to be balanced, it is particularly important that the Code of Professional Responsibility not be mechanically applied when disqualification is raised in litigation. The Code instead provides "guidance for the courts in determining whether a case would be tainted by the participation of an attorney or a firm.” (Armstrong v McAlpin, 625 F2d 433, 446, n 26, vacated on other grounds 449 US 1106.) While in most instances the balance would be struck and the issue of disqualification finally resolved by the Appellate Division, in the circumstances presented no such taint or unfairness has been established by defendant, who bears the burden on this motion, and we therefore reverse and deny disqualification.

No one even suggests that Sassower will in any sense participate in trial of this action. While the concerns underlying law firm disqualification of course apply as well where the subject lawyer does not actually conduct the courtroom proceedings, still the actual connection between Sassower, the law firm and the trial cannot be ignored in evaluating whether the firm should be disqualified. Indeed, plaintiff repeatedly declares throughout its submissions that it does not intend to call Sassower as a witness at all. These declarations of intent by a sophisticated business plaintiff, as well as by its counsel, made after pleadings and limited discovery — with its trial strategy in mind — must be seriously regarded in determining what interest is being served by nonetheless disqualifying the law firm. True, such statements are not determinative of whether a witness "ought to be called”, but neither can an informed commercial plaintiff’s choice be ignored. Where such a client, in such circumstances, knowingly chooses to forego the testimony of its lawyer because it prefers to continue the representation of its law firm, it is curious indeed for the adversary to insist that the lawyer ought to be called as a witness for that client, and for a court on that basis to disqualify the firm (see, Greenebaum-Mountain Mtge. Co. v Pioneer Natl. Tit. Ins. Co., 421 F Supp 1348; Borman v Borman, 378 Mass 775, 393 NE2d 847; Wolfram, Modern Legal Ethics § 7.5, at 389).

Linked to these declarations by plaintiff is the fact that neither court below found Sassower’s testimony necessary to plaintiff’s case. Special Term found that Sassower had knowledge of the circumstances surrounding the deed of trust, but questioned the materiality of such knowledge to this action. The Appellate Division found that Sassower was intimately involved in the transactions in issue, including the flow of information to defendant relating to its consent. But whether a witness "ought” to testify is not alone determined by the fact that he has relevant knowledge or was involved in the transaction at issue. Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary (Foley & Co. v Vanderbilt, 523 F2d, at 1359, supra). Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence (see, Comden v Superior Ct., 20 Cal 3d 906, 576 P2d 971, cert denied 439 US 981; see also, Universal Athlete Sales Co. v American Gym, Recreational & Athletic Equip. Corp., 546 F2d 530, 538-539, n 21, cert denied 430 US 984; Foster Wheeler Corp. v Babcock & Wilcox Co., 440 F Supp 897, 903). Here, plaintiff did not dispute that Sassower participated in negotiations and communications with defendant. However, it was error to give no recognition to plaintiff’s contention that Sassower’s testimony was not material or even necessary, because there was no occasion to go behind the various agreements to determine their intent, the issues raised under the agreements being solely questions of law (see, Teitelbaum Holdings v Gold, 48 NY2d 51, 54); because Philip (not Herman) was the only person with firsthand knowledge of the conversations on which plaintiff’s case hinges; and because Herman’s testimony would at most be cumulative or relate only to matters of formality (see, Lefkowitz v Mr. Man, 111 AD2d 119, appeal dismissed 65 NY2d 1053).

These combined considerations, overlooked below, lead us to conclude that disqualification was improperly granted.

While defendant urges that, even if plaintiff does not call Herman Sassower it will, and his testimony will prejudice his client (see, Code of Professional Responsibility DR 5-102 [B]), the thrust of defendant’s motion as made was that the witnesses ought to be called on plaintiff’s behalf. Neither court below directly addressed the incidental issue whether Sassower’s testimony would give rise to a conflict between the firm and its client, but instead both courts permitted Bell Kalnick to continue to represent plaintiff until trial. We agree with the dissent at the Appellate Division that defendant’s papers were "vague and conclusory as to how plaintiff would be prejudiced if the defendant should call Herman Sassower.” (122 AD2d 676, 682; see also, Ocean-Clear, Inc. v Continental Cas. Co., 94 AD2d 717, 719.)

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant’s motion to disqualify plaintiffs counsel denied, and the certified question answered in the negative.

Chief Judge Wachtler and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Alexander taking no part.

Order reversed, etc.

      .The lower court opinions deal only with Sassower, not Seldin. It is plain from the voluminous affidavits, briefs and other submissions on this motion that the motion centers on Sassower. Concluding that there is no need for disqualification on account of Sassower’s involvement, we too do not separately consider the issue whether disqualification is mandated by the undisputedly lesser role attributed to Seldin.

      .We therefore need not address plaintiff’s argument, made in its submissions to this court, that Sassower remained a principal, and that as a party litigant the advocate-witness disqualification rules do not even apply to him (see, e.g., Bottaro v Hatton Assocs., 680 F2d 895).

      .Vicarious disqualification, prescribed by DR 5-105 (D) without limitation, has been widely recognized as overbroad. In a comprehensive report on revising the Code of Professional Responsibility issued February 28, 1987, a Special Committee of the New York State Bar Association recommends that the Code be amended along the lines of rule 3.7 of the American Bar Association’s proposed Model Rules of Professional Conduct, limiting vicarious disqualification.

      .There is considerable difference of opinion as to the underlying rationale for the rule. "The Code version of the advocate-witness rule has been defended on several grounds, not all of which are very convincing and not all of which consistently support the breadth of disqualification provided.” (Wolfram, Modern Legal Ethics § 7.5, at 377; see also, ABA/BNA, Lawyers’ Manual on Professional Conduct 61:503-61:506; and Enker, Rationale of the Rule that Forbids a Lawyer To Be Advocate and Witness in the Same Case, 1977 Am Bar Found Res J 455, 464, concluding that the rule is not for the protection of the client or the adversary, but the integrity of the profession.)


author: Bellacosa, J.

text:
    Elisabeth De Kovessey, as Executrix of Elisabeth Thomson, Deceased, Respondent, v Coronet Properties Co. et al., Appellants, et al., Defendants. In the Matter of John I. Lipkowitz, as Executor of Herman L. Wasserman, Deceased, Respondent, v Coronet Properties Co., Appellant. Sarah Lagary et al., as Administrators of the Estate of Robert Lagary, Deceased, Respondents, v Wiener Management, Appellant. Amsterdam Manhattan Associates et al., Appellants, v Estate of Maria Leichtman, by Nomi Rinke, as Preliminary Executrix, Respondent.
    Argued March 16, 1987;
    decided April 30, 1987

      POINTS OF COUNSEL

      Ronald J. Berk for appellants in the first above-entitled action and for appellant in the second above-entitled proceeding.

      Gale Fieldman for respondent in the first above-entitled action.

      John I. Lipkowitz, pro se, and Martin Novack and Paul H. Appel for John I. Lipkowitz, respondent in the second above-entitled proceeding.

      Barbara E. Oik, Joel S. Sankel and Ted Trief for appellant in the third above-entitled action.

      Lawrence M. McKenna for respondents in the third above-entitled action.

      Justin N. Feldman, Ingrid R. Sausjord and Carol Salem for appellants in the fourth above-entitled action.

      Aaron Gelbwaks and Lonnie S. Rosenberg for respondent in the fourth above-entitled action.
   OPINION OF THE COURT

Bellacosa, J.

In four cases heard and decided together, the appellants-sponsors assert that they have been erroneously required to permit the respondents-estates to purchase shares, at the less-than-open-market insider price, under cooperative conversion plans in the place and stead of their respective decedents. The sponsors each made offers to "tenants in occupancy” in rent-controlled apartment buildings being converted to cooperative ownership; the tenants-offerees each died before accepting the offers and their estates each attempted to accept pursuant to the terms of the offering statements. Although the sponsors rejected the estates’ proffered acceptances, each of the sponsors was ordered by courts below to honor the estates’ acceptances. The sponsors urge that the decisions below were incorrect because (1) the estates were not "tenants in occupancy” as contemplated by the controlling statute; (2) the offers lapsed at the time of death of the tenants-offerees; and (3) the results below violate legislative policy and intent.

The issue is whether the unexercised right of a deceased "tenant in occupancy” to purchase shares offered in a cooperative conversion plan at the less-than-market insider price may be exercised by the deceased’s estate. We reverse the determinations below because they are contrary to the controlling statute, to common-law contractual principles and to relevant policy factors. Heirs have no basis in law to enjoy a windfall by resale of converted cooperative apartments, previously rent-controlled, at a value higher than the insider rate offered exclusively to their decedents in occupancy. That is not what these apartment regulation statutes are all about.

In all four cases the salient facts are the same and what differences do exist are not germane to the analysis or disposition. Offering statements were made to tenants in accordance with plans filed with the Attorney-General, and the tenants died during the pendency period of the offer without exercising an acceptance by submitting subscription agreements which their respective estates then attempted in timely fashion to do. The courts below essentially granted summary judgment to the estates against the sponsors and the Appellate Division affirmed in each case, without opinion.

Cooperative conversion plans are governed by General Business Law § 352-eeee. That statute lists a number of requirements before an offering plan can be accepted for filing by the Attorney-General. For example, with respect to eviction plans, 51% of a bona fide "tenants in occupancy” at the date of the offering statement is accepted for filing by the Attorney-General (excluding eligible senior citizens and disabled persons) must submit a subscription agreement before the plan may be declared effective (General Business Law § 352-eeee [2] [d] [i]). Also, "tenants in occupancy” as of the date the plan is accepted for filing shall have the exclusive right, for 90 days, to purchase the shares allocated to their apartment (General Business Law § 352-eeee [2] [d] [ix]).

In each of the matters disposed of today, the respective estate’s decedent had lived alone at the time the conversion plan was accepted by the Attorney-General for filing. Consistent with the provisions of the controlling statute, the offering statement was specifically limited to "tenants in occupancy”. In each case, the lower courts concluded that the tenant’s insider rights vested or were otherwise preserved as of the time of the Attorney-General’s acceptance of the plan for filing and that the vested rights passed, through some unspecified rules of succession, to the estates. While these results have some appeal about them, they are, on analysis, contrary to the clear language of the General Business Law § 352-eeee, to the legislative intent behind that statute, to a number of fundamental precepts of contract law, and to the sense of prior decisions of this court.

A determination upholding an estate’s right to exercise the power of acceptance of the deceased offeree would contradict the purpose of the regulatory statute (cf., Sullivan v Brevard Assocs., 66 NY2d 489). The legislative declaration of purpose reveals that enactment was in response to a "public emergency requiring the regulation and control of residential rents and evictions” (L 1982, ch 555, § 10). As the Legislature declared, the statute was intended to protect "tenants in occupancy”, particularly the elderly and disabled, from "unjust, unreasonable and oppressive rents”, "uncertainty, hardship and dislocation in connection with the conversion process”, and "other disruptive practices affecting all tenants during the conversion process” (L 1982, ch 555, § 1). At the same time the Legislature sought to encourage housing conversion in an orderly manner so as to facilitate the preservation, stabilization, and improvement of neighborhoods (L 1982, ch 555, § 1). The statute is based upon a legislative balancing between the preservation of a stable affordable housing market and the owner’s right to pursue legitimate objectives.

There is no evidence nor is there any express provision showing a legislative intent to further diminish or encumber an owner’s right in property as is urged by the respondents and that was granted by the courts below. Such a significant alteration of rights should not arise from judicial proclamation but should come from clear legislation, grounded in appropriate constitutional and policy considerations.

The estates’ claims of right grounded in contract theory must be examined with an appreciation of fundamental contractual principles. An offer to sell shares in a cooperative conversion confers upon the tenant-offeree a power of acceptance which continues until the offer is accepted or otherwise terminated (see, 1 Williston, Contracts § 50, at 163 [3d ed 1957]). Consistent with General Business Law § 352-eeee, the offering statements exclusively invited the "tenants in occupancy” on the date the plans were accepted for filing to submit a subscription agreement in acceptance of the offer (see, Restatement [Second] of Contracts § 52 [1981]). The law is well settled that an offeree’s power of acceptance is terminated, making acceptance impossible, when the offeree dies (Brunner-Booth Fotochrome v Kaufman, 18 AD2d 160; Restatement [Second] of Contracts § 48 [1981]; Calamari and Perillo, Contracts § 2-23, at 81 [2d ed 1977]). "Since an offer can be accepted only by the person to whom it is made, the death of the offeree also has the effect of precluding the possibility of a contract” (1 Williston, Contracts § 62, at 207 [3d ed 1957]; see also, Jones v Union Cent. Life Ins. Co., 265 App Div 388, 391; Restatement [Second] of Contracts § 52, comment a, illustration 1 [1981]). In these cases the offers contained in the offering statements terminated when acceptance became impossible due to the death of the "tenant in occupancy”. Therefore, on simple contract terms, the tenant-offeree’s right of acceptance could not be exercised by their estates after their death.

The argument that an offering statement creates an option contract which would survive the death of the "tenants in occupancy” falters in the wake of the applicable statute and careful analysis. Offering statements, drafted in compliance with General Business Law § 352-eeee, are not made in return for consideration, are not irrevocable under the terms of the statute, and there is no expectation of induced action or forbearance of a substantial character on the part of the offeree (Restatement [Second] of Contracts § 87 [1981]). One manifestation that such offers do not constitute an option contract is that the statute permits the unilateral amendment of the conversion plan and offering statement by the offerorsponsor from an eviction to a noneviction plan, as occurred in two of the four cases presented here. The exclusivity of the right of acceptance does not make the offering statement an option contract but simply complements the legislative intent and purpose which served as the catalyst for the adoption of the statutory protections in the first place. Unlike a lease option which "is supported by consideration, is binding on the landlord for the period specified in the lease, and is a covenant [see, Kotcher v Edelblute, 250 NY 178]. The tenant’s statutory right to purchase [under General Business Law § 352-eeee] is not supported by consideration, is terminable by the owner at any time and is not a covenant” (Messing, Estate’s Right to Purchase Under Co-Op Offering Plan, NYLJ, Dec. 30, 1986, at 32, col 1). Thus, analytically, an offering statement which complies with the terms of General Business Law § 352-eeee is a distinct legal creature and not a traditional option contract which may, in circumstances not present in these cases, devolve down to estates.

The cases before us were either ipse dixit holdings below or largely reliant on other such decisions. The lower courts reasoned that the estates’ rights flowed alternatively from ownership of leases, the vesting of an interest in the offeree or the creation of an option contract. These theories fail because these were not lease cases, there was no vesting of rights implicating successorship, and these statutory creations are not option contracts. Additionally, in reaching their results the courts below did not even discuss the threshold impediment that the estate was not a "tenant in occupancy” as expressly contemplated by the governing regulatory statute at the time the plan was accepted for filing.

Our decision also finds support in our reasoning in Cooper v 140 E. Assocs. (27 NY2d 115) and in Consolidated Edison Co. v 10 W. 66th St. Corp. (61 NY2d 341). Taken together Cooper and Con Ed show that the "tenant in occupancy” must be in actual possession and occupying the unit at the time the conversion plan is accepted for filing in order to qualify at all.

The otherwise undefined terms of General Business Law § 352-eeee provide that the party who is to be protected by its provisions must be a "tenant in occupancy” at the time the plan is accepted for filing. Definitions contained in other statutory or administrative contexts (see, New York City Rent Control Law, Administrative Code of City of New York § Y513.0 [m]; McKinney’s Uncons Laws of NY § 8582 [7] [Emergency Housing Rent Control Act, L 1946, ch 274, as amended]) are not incorporated by reference or otherwise applicable here because, in light of their conspicuous absence from this governing section, we conclude that the Legislature intended in this instance that they not be applicable to General Business Law § 352-eeee (see, Sullivan v Brevard Assocs., 66 NY2d 489, 493-494, supra). In any case, Cooper (supra) and Con Ed (supra) stand for the proposition that the critical component to establishing an entitlement to exercising the insider rights of a "tenant in occupancy” is a landlord-tenant relationship coupled with actual use and possession at the time the plan is accepted for filing. In applying the Cooper-Con Ed principle to the facts before us, none of the estates before us on these appeals could be said to have been "tenants in occupancy” since none was using or occupying the unit at the time the plan was accepted for filing. They did not legally or realistically accede to that status of their decedents.

As we have indicated, there is no statutory, common-law or equitable basis upon which estates should be allowed to garner a windfall via decedents and for the benefit of heirs by resale of the converted apartments at a value higher than the insider rate at the expense of the sponsor/owner’s reversion rights under the filed plan.

How would the disorderly or unfair eviction of "tenants in occupancy” be prevented by permitting their estates to exercise insider rights to purchase in these circumstances? It would not be. No possibility exists that those who have not affirmatively exercised their subscription rights will be subject to an unjust eviction after they have passed away. And should the occupants’ specially protected rights to a home place be convertible into cash to benefit heirs? We think that is not the purpose of the governing statute either. The succession of rights to estates as authorized by the courts below would not promote orderly workable conversions of rent-controlled apartments but, to the contrary, the interposition of the estate with the not infrequent discord over rights of succession and the delays of winding up estate matters would only exacerbate the rental and realty matters that General Business Law § 352-eeee was meant to remedy.

Accordingly, we should reverse in De Kovessey, with costs, denying plaintiffs motion for summary judgment; reverse in Lipkowitz, with costs, dismissing the petition; reverse in Lagary, with costs, denying plaintiffs’ motion for summary judgment and granting defendant’s cross motion for dismissal; and reverse in Amsterdam, with costs, denying defendant’s motion for summary judgment and granting plaintiffs’ motion for summary judgment.

Chief Judge Wachtler and Judges Simons, Kaye, Titone and Hancock, Jr., concur; Judge Alexander taking no part.

In De Kovessey v Coronet Props. Co.: Order reversed, etc.

In Matter of Lipkowitz v Coronet Props. Co.: Order reversed, etc.

In Lagary v Wiener Mgt.: Order reversed, etc.

In Amsterdam Manhattan Assocs. v Estate of Leichtman: Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Lester Irving Crandall, Appellant.
    Argued March 19, 1987;
    decided May 5, 1987

      POINTS OF COUNSEL

      Terence L. Kindlon for appellant.

      Sol Greenberg, District Attorney (Michael J. Connolly of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

We affirm the drug possession conviction, tried and appealed separately from the drug sale conviction which was previously reversed, because the somewhat intricate procedural and legal issues involved in the possession prosecution do not offend constitutional, statutory or precedential principles.

A series of drug sales by the defendant to an undercover officer in Albany in September of 1983 led to an oral application for a search warrant, the grant of an "oral search warrant”, and the ultimate arrest of defendant Crandall in a pickup truck near Albany Airport after a flight to Albany. The ensuing indictment for one count of criminal sale of a controlled substance, third degree (Penal Law § 220.39 [1]), and one count of criminal possession of a controlled substance, third degree (Penal Law § 220.16 [12]), was severed for trial and the conviction for the sale count was ultimately reversed by this court (67 NY2d 111). The possession count also resulted in a conviction and is now before us on a number of issues, the key one of which relates to whether the Appellate Division can order that a suppression hearing be reopened when it finds a defect in the initial determination of the suppression court.

The salient chronological context for the resolution of this central issue begins with a refusal to suppress the seized evidence on the ground that a lawful search warrant had issued upon the oral application pursuant to a new statutory authorization (CPL 690.35, 690.36; suppression denied May 17, 1984). Defendant was then convicted of criminal possession of a controlled substance in the third degree after a jury trial (June 7, 1984). On the first appeal of the possession conviction to the Appellate Division, there was a finding of fundamental noncompliance with the new warrant procedure requirements invalidating the warrant as a predicate for a lawful search, and a remittal for a new suppression hearing (People v Crandall, 108 AD2d 413 [3d Dept 1985]). On remittal, the suppression court allowed the People to present evidence establishing a nonwarrant, probable cause basis for the search of Crandall and his vehicle, and the seizure of a pouch containing more than one ounce of cocaine and a suitcase containing United States currency, pursuant to this court’s decision in People v Belton (55 NY2d 49) and, in dual orders, denied suppression again but on the new basis (Feb. 14, 1986). The Appellate Division, on its review of the appeal which had otherwise been held in abeyance, affirmed the judgment of conviction, without opinion, implicitly and necessarily upholding the denial of suppression of evidence (People v Crandall, 120 AD2d 994 [3d Dept 1986]).

A Judge of this court granted leave so we might review the correctness of the Appellate Division’s remittal, allowing the People a subsequent opportunity to establish the legitimacy of the search and seizure on grounds other than the appellate-dead warrant basis. It is key to note at the outset that the People had no previous incentive to advance alternative theories nor would it have made any legal or practical sense to advance theories supporting the legality of the search other than on the preferred warrant basis.

We hold that the courts below ruled correctly based upon the unbroken thread of precedents governing this particular procedural channel of search and seizure law (People v Payton, 51 NY2d 169; People v Havelka, 45 NY2d 636; People v Green, 33 NY2d 496; People v Malinsky, 15 NY2d 86). Having so held, we also conclude that there is no basis to disturb the conclusion of the courts below that the probable cause basis for denying suppression of evidence in this case was sufficient. We have also examined defendant’s other assertions of error and find them to be meritless.

The seminal precedent on the key issue is People v Malinsky (supra). We recognized that the People should not be deprived of an opportunity to fully present all the available evidence merely because the hearing court made an incorrect ruling. Malinsky involved a search which the People sought to justify as incident to a lawful arrest. In upholding the search, the suppression court mistakenly ruled that the People did not have to provide the defense with the identity of a confidential informant or with the arresting officers’ unofficial notes. This court remitted the matter so that the People would have the opportunity to submit further evidence to establish that the arrest was based upon probable cause independent of the informant’s statements, or to show additional corroborating details, or reveal the informant’s identity. The remittal was authorized since this court "felt that the police may have been in possession of additional corroborating details, not testified to upon the hearings already held” (People v Malinsky, supra, at 95) and that these details were not initially introduced because the suppression court’s ruling made it unnecessary.

Consistent with Malinsky, we remitted in People v Green (33 NY2d 496, supra) to permit the People to introduce evidence on whether probable cause to arrest existed, supporting the subject search as incident to a lawful arrest. Evidence on the arrest issues was not initially developed at the pretrial suppression hearing because the court held that the search was proper pursuant to a search warrant. In holding that the search of Green was beyond the scope of the warrant, we implicitly recognized that the People, in reliance on the magistrate’s determination that a warrant should issue, had no incentive to present search-incident-to-arrest evidence as an alternative ground for sustaining the search. The factual and analytical pattern of Green squarely fits the instant case.

We were confronted with a situation different from the Malinsky-Green "emerging principle” in People v Havelka (45 NY2d 636, 643, supra). In Havelka, the police had received a warning that a gun battle was going to occur. Police officers deployed to quell the situation stopped and frisked a number of individuals and found a gun on the defendant. At the ensuing suppression hearing, the People presented only the police officer who performed the search. No evidence was presented concerning the reliability of the warning or of the informant, nor was the informant called. The Appellate Division remitted the case for a further hearing because the suppression court initially lacked sufficient evidence to establish that the search and subsequent weapon seizure was legal. After the rehearing and affirmance, we noted that Malinsky and the "numerous subsequent cases” which have applied its procedure hinge on the idea that the People should be permitted to introduce additional relevant testimony at rehearings because, misled by a ruling of the suppression court, they may have refrained from offering other available evidence believing that their theory had been accepted and their burden had been satisfied. We summed up and confirmed our overview of precedents by observing that subsequent cases: "are consistent with the emerging principle implicit in Malinsky — that the People should not be deprived of one full opportunity to present evidence of the dispositive issues involved at the suppression hearing. If an error of law is committed by the hearing court which directly causes the People to fail to offer potentially critical evidence a rehearing should be ordered so that the evidence may be presented” (People v Havelka, supra, at 643).

Having articulated the view that the People should not be deprived of one full opportunity, the majority in Havelka concluded that the People should not, on the other hand, have a right to rehearing without limitation, and that there is no justification for providing a second chance to the People where they tried once and failed without the interposition of judicial error. Under the facts of Havelka, there was no erroneous ruling by the suppression court to lull the People into complacency or to otherwise interfere with their opportunity to advance evidence and, thus, the People had their one full opportunity at the initial hearing. Inasmuch as the evidence was insufficient despite the full opportunity to substantiate the propriety of the search and seizure, we ruled that the People should not be afforded a second opportunity to cure the defect.

In People v Payton (51 NY2d 169, supra), this court reaffirmed the Malinsky-Green principle that "[a]ll that fairness requires is that they [the People] be given 'one full opportunity’ to prove the admissibility of the evidence sought to be suppressed” (People v Payton, supra, at 177). In Payton, the United States Supreme Court reversed on the ground that the New York statute permitting arrests in a suspect’s home without a warrant was invalid and remanded the case to this court. We then noted that because the arrest was made pursuant to a previously valid statute, the People had not offered any evidence that the warrantless arrest might be proper due to exigent circumstances. Citing Malinsky (15 NY2d 86, supra) and Green (33 NY2d 496, supra), we held that just as the People are entitled to a new hearing when the court makes an error of law which causes the People not to offer potentially critical evidence, or where the People rely upon the hearing court’s action in sustaining a warrant to justify a search and do not submit proof on another theory, so too are the People entitled to a new hearing if they rely upon the hearing court’s ruling based on a previously recognized statutory ground. The complementary principles emerging out of Malinsky-Green and out of Havelka were analytically harmonized and the former one was applied to the Payton situation.

These correlative principles in the entire line of cases remain intact today and appear to be well understood and fairly applied by the lower courts in the myriad of situations which daily confront them.

Another recent case requiring comment applies both principles to discrete problems in the one case. In People v Dodt (61 NY2d 408), the People, through no error of the hearing court, offered insufficient evidence to establish probable cause for defendant’s arrest. Failing to detect the insufficiency of the evidence, the suppression court ruled that an ensuing line up identification was the product of a valid arrest. Due to the suppression court’s erroneous ruling, the "defendant’s trial” motion seeking to bar the in-court identification was improperly denied. Since the incorrect trial ruling was based upon the suppression Judge’s error of law, the prosecution did not attempt to justify the in-court identification under the independent source doctrine. In analyzing the legal questions presented in Dodt, we found that the People should not be permitted a second hearing on the admissibility of the line up evidence with respect to the consent aspect since they had had one full opportunity to sustain the validity of that line up identification. We noted that Havelka bars the second hearing in the interest of guarding against "the potential for abuse and injustice through the tailoring of testimony to fit the requirements established by an appellate court’s opinion” (People v Dodt, supra, at 418). In so ruling, however, and this is key to the distinction from the instant case, we did not foreclose the People from establishing an independent source for the in-court identification and, thus, consistent with Malinsky, we remitted Dodt for a new hearing with respect to the separate in-court identification based on the independent source theory.

Thus, Dodt fits compatibly within the holdings of the four principal cases, as does People v Bryant (37 NY2d 208). In Bryant, the suppression court found that there was insufficient evidence to arrest and suppressed the challenged evidence. The Appellate Division found the critical testimony at the suppression hearing equivocal and remitted the case. This court regarded the Appellate Division’s determination that the evidence was equivocal as, in effect, affirming the hearing court’s finding of insufficient evidence. Noting that "[n]o contention is made that the People had not had full opportunity to present evidence” (People v Bryant, supra, at 211), we reversed. In essence, Bryant was a precursor to Havelka’s articulation of the "one full opportunity rule” and is consistent with the precedents which have followed.

We affirm the instant case because the Malinsky-Green-Payton principle is applicable to facts developed here. In. the procedural context of this case, the suppression court initially upheld the validity of the search of Crandall’s vehicle and person and the ensuing seizures based upon the existence of an "oral search warrant”. There is no such thing. The new statute authorized oral applications which still must evolve into a written warrant. However, the invalidity of that warrant was not established until later upon appellate review. At the time of the first hearing, the People did not offer evidence to sustain an alternative basis for the search and seizure because the warrant was presumptively valid. As in Green and Payton, there was no incentive or necessity to do more. When, on appeal, the Appellate Division ultimately ruled on that basis that the "oral search warrant” was improper and that the hearing court erroneously ruled that the evidence seized was not subject to suppression, the case was correctly remitted to the hearing court so that the People could introduce evidence, if there was any, on the alternative basis that the search and seizure were proper as being incident to a lawful arrest. Just as the suppression courts’ erroneous rulings in Malinsky (that the informant’s identity did not have to be revealed), Green (that the search warrant was appropriately executed) and Payton (that warrantless arrests in the defendant’s home were legal under a then valid statute) entitled the People to introduce additional evidence on why the seized evidence should not be suppressed, so too, did the magistrate’s erroneous decision in issuing the "oral search warrant” in this case permit the People to introduce alternative, additional evidence.

Our rulings in the Malinsky-Green-Payton line of cases, including today’s holding, can be analogized in terms of the appropriate corrective action to cases where, as a consequence of trial error by the prosecution or the court, a new trial is ordered. Correspondingly, as under the Havelka principle, when the evidence at trial is insufficient after the People have had a full opportunity to present their evidence, the appropriate corrective action is to dismiss the criminal charge. In short, the parallel between the corrective action of cases of true insufficiency of the evidence and those involving trial errors helps to demonstrate the correctness of the rationale and result we reach in this case.

In doing so, we also reiterate the caveat expressed in Havelka and Dodt that suppression courts should be alert to the potential for abuses through the tailoring or alteration of testimony to satisfy the deficiencies found by an appellate court. From their unique fact-finding perspective, they should not countenance law enforcement misconduct in this respect. The objective of our precedents is to ensure that the People get their one fair full opportunity to establish the admissibility of the seized evidence, not to allow evasion of the legitimate strictures of the Fourth Amendment’s protections by dishonest or unfair resuscitation of defective cases with the aid of appellate court hindsight (cf., People v Berrios, 28 NY2d 361, 368).

The important legal and policy goal of balancing the protections afforded the accused from unjust second efforts at establishing the admissibility of seized evidence, against the right of the People to have a full opportunity to present distinctly separate theories for the validation of a search and seizure, is protected by the complementary principles of our cases.

Accordingly, the order of the Appellate Division upholding the drug possession conviction should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye, Titone and Hancock, Jr., concur; Judge Alexander taking no part.

Order affirmed.


author: Simons, J.

text:
    The People of the State of New York, Respondent, v Edward Reid, Appellant. The People of the State of New York, Respondent, v Walter Riddles, Appellant.
    Argued March 18, 1987;
    decided May 5,1987

      POINTS OF COUNSEL

      Joel A. Brenner for appellant in the first above-entitled action.

      Mario Merola, District Attorney (Lee S. Gayer and Peter D. Coddington of counsel), for respondent in the first above-entitled action.

      Ruth S. Sharfman, Philip L. Weinstein and Andrew C. Fine for appellant in the second above-entitled action.

      Mario Merola, District Attorney (Robert L. Shepherd and Peter D. Coddington of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Simons, J.

The common issue presented by these two appeals is whether a good-faith claim of right, which negates larcenous intent in certain thefts (see, Penal Law § 155.15 [1]), also negates the intent to commit robbery by a defendant who uses force to recover cash allegedly owed him. We hold that it does not. Accordingly, we affirm the order of the Appellate Division in each case.

I

A

Defendant Edward Reid was charged in a multicount indictment with felony murder, three counts of robbery in the first degree, one count of criminal possession of a weapon in the third degree and various other crimes. He was acquitted of the murder count but convicted of the robbery and possession counts. The additional charges were dismissed by the trial court.

The convictions stem from defendant’s forcible taking of money from three others. The evidence established that defendant and his stepbrother, Andre McLean, approached Arthur Taylor, Donnie Peterson and Donald Thompson, while the three men were standing on a street corner in The Bronx. Defendant and McLean were holding pistols when defendant demanded that the three men hand over money "that belonged to him,” apparently referring to money owed him as the result of prior drug transactions. Taylor and Thompson gave defendant money but Peterson responded that he had none and would have to go upstairs to his apartment to get some. As the men walked up the stairs, toward Peterson’s apartment, defendant "snatched” McLean’s pistol, placed it in his waistband and demanded that McLean turn over money he was holding for him. McLean handed defendant $300. A moment later, he rushed at defendant, a "shot went off” striking McLean and defendant fled. McLean subsequently died from a single gunshot wound to his chest.

B

Defendant Walter Riddles was indicted for robbery in the second degree and assault in the second degree. He was convicted after a bench trial of robbery in the third degree for forcibly taking money from Genevieve Bellamy on November 10, 1982.

Bellamy and defendant both testified at trial, each providing different descriptions of events. Bellamy maintained that while she was waiting for a taxi at a street corner in The Bronx, defendant, whom she did not know, drove up to the curb and asked for directions. According to Bellamy, when she leaned into defendant’s automobile to help him, defendant grabbed her, forced her into the car and demanded money from her. Bellamy stated she did not have any, but defendant struck her in the face, searched her pockets, and, upon discovering $50, took the money and ordered her out of the automobile.

Defendant disputed her story. He testified that he knew Bellamy prior to the incident and that she owed him $25. He stated that he met her on the evening of November 10 and she offered to pay him $15 toward her debt if he drove her downtown so she could pick up a package. Defendant maintained that he took Bellamy downtown, as she asked, but that she was unable to obtain her package so he drove her back uptown. Defendant testified that during the return trip, Bellamy again offered to pay him $15 toward her debt, but upon seeing her counting a large sum of money, he took the full amount she owed him, $25, and no more.

In pronouncing judgment, the court stated that it credited the portion of defendant’s testimony indicating that he had taken the money from Bellamy to satisfy a debt but the court held that because defendant used force he was nevertheless guilty of robbery.

II

A person "commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force” (Penal Law § 160.00; see also, People v Koerber, 244 NY 147, 153). The larceny statute, in turn, provides that an assertion that "property was appropriated under a claim of right made in good faith” is a defense to larceny (see, Penal Law § 155.15 [1]; see also, People v Chesler, 50 NY2d 203 [finding that claim of right is an ordinary defense, not an affirmative defense, to a prosecution for larceny]). Since a good-faith claim of right is a defense to larceny, and because robbery is defined as forcible larceny, defendants contend that claim of right is also a defense to robbery. They concede the culpability of their forcible conduct, but maintain that because they acted under a claim of right to recover their own property, they were not guilty of robbery, but only some lesser crime, such as assault or unlawful possession of a weapon.

Defendants’ general contention is not without support. Several jurisdictions have held that one who acts under a claim of right lacks the intent to steal and should not be convicted of robbery (see generally, Annotation, Robbery, Attempted Robbery, or Assault to Commit Robbery, as Affected by the Intent to Collect or Secure Debt or Claim, 88 ALR3d 1309; see also, 2 LaFave and Scott, Substantive Criminal Law § 8.11 [b], at 440-442 [1986]; 4 Wharton’s Criminal Law §§ 470-471, at 43-48 [14th ed Torcía 1981]). That logic is tenable when a person seeks to recover a specific chattel: it is less so when asserted under the circumstances presented in these two cases: in Reid to recover the proceeds of crime (see, e.g., Commonwealth v Sleighter, 495 Pa 262, 433 A2d 469; People v English, 32 Ill App 3d 691, 336 NE2d 199; People v Karasek, 63 Mich App 706, 234 NW2d 761), and in Riddles, to recover cash to satisfy a debt (see, e.g., Austin v State, 86 Wis 2d 213, 271 NW2d 668; Edwards v State, 49 Wis 2d 105, 113-114, 181 NW2d 383; State v Martin, 15 Ore App 498, 516 P2d 753; see generally, Annotation, op. cit.; 4 Wharton’s Criminal Law op. cit.).

We have not had occasion to address the issue but the Appellate Divisions to which it has been presented have uniformly ruled that claim of right is not a defense to robbery (see, People v Hodges, 113 AD2d 514 [2d Dept]; People v Coates, 64 AD2d 1 [2d Dept]; People v Banks, 55 AD2d 795 [3d Dept]; see also, People v Richardson, 55 AD2d 514 [1st Dept]). Their determinations have been based upon the interpretation of the applicable statutes and a policy decision to discourage self-help and they are consistent with what appears to be the emerging trend of similar appellate court decisions from other jurisdictions (see, State v Ortiz, 124 NJ Super 189, 305 A2d 800; see also, State v Russell, 217 Kan 481, 536 P2d 1392; State v Martin, 15 Ore App 498, 516 P2d 753, supra; People v Uselding, 107 Ill App 2d 305, 247 NE2d 35; Elliott v State, 2 Tenn Crim App 418, 454 SW2d 187; Crawford v State, 509 SW2d 582 [Tex Crim App]; Moyers v State, 186 Ga 446, 197 SE 846). For similar reasons, we conclude that the claim of right defense is not available in these cases. We need not decide the quite different question of whether an individual who uses force to recover a specific chattel which he owns may be convicted, of robbery. It should be noted, however, that because taking property "from an owner thereof’ is an element of robbery, a person who recovers property which is his own (as compared to the fungible cash taken to satisfy a claimed debt in the cases before us) may not be guilty of robbery (see, Penal Law § 155.05 [1]; § 160.00; cf., Penal Law § 35.25 [indicating that a person would be justified in using nondeadly force to prevent an apparent larcenist from taking his property]).

The claim of right defense is found in the larceny article of the Penal Law, which provides that a good-faith claim of right is a defense to trespassory larceny or embezzlement (see, Penal Law § 155.15 [1]). The defense does not apply to all forms of larceny. For example, extortion is a form of larceny, but the Legislature, consistent with a prior decision of this court, has not authorized a claim of right defense to extortion (see, People v Fichtner, 281 App Div 159, affd 305 NY 864). The exception is significant for extortion entails the threat of actual or potential force or some form of coercion. Thus, the inference may reasonably be drawn that in failing to authorize a claim of right defense for extortion in Penal Law § 155.15 (1), and by failing to incorporate it in article 160 of the statute, which governs robbery, the Legislature recognized that an accused should not be permitted to invoke it in crimes involving force. We assume that if the Legislature intended to excuse forcible taking, it would have said so.

Our decision also rests upon policy considerations against expanding the area of permissible self-help. Manifestly, a larceny, in which the accused reacquires property belonging to him without using force, differs from a robbery in which the defendant obtains money allegedly owed to him by threatening or using force. "The former is an instance of mistake, not subjected to penal sanctions because the threat to private property is not so serious as to warrant intervention by the criminal law. The latter is a species of self help and whether or not the exponent of force or threats is correct in estimating his rights, he is resorting to extra-judicial means in order to protect a property interest” (Note, A Rationale of the Law of Aggravated Theft, 54 Colum L Rev 84, 98 [1954]). Since such forcible conduct is not merely a transgression against property, but also entails the risk of physical or mental injury to individuals, it should be subjected to criminal sanctions. Consequently, we find the courts in both People v Reid and People v Riddles correctly denied defendants’ requests to assert claim of right defenses.

Ill

Defendant Reid also assigns as error the court’s refusal to grant his request for a specific instruction to the jury on coerced testimony. He maintains that because Arthur Taylor, the key prosecution witness against him, was originally coerced into giving a statement to the police, the trial court should have instructed the jurors that in determining whether Taylor was credible, they could consider the possibility that Taylor was pressured into testifying. Instead, the court gave a traditional credibility charge.

Taylor’s testimony was undoubtedly admissible and because he was cross-examined extensively about the alleged police coercion which preceded his original statement, the jury was fully aware of any weakness in his testimony. Thus, the requirements of law were met because "the fact of such earlier coercion or other official lawlessness [was] disclosed to the jurors so that they [could] pass upon the witness’ veracity and credibility and determine whether the testimony given in open court [was] truthful and worthy of consideration” (People v Portelli, 15 NY2d 235, 239, cert denied 382 US 1009, remittitur amended 16 NY2d 537). Although the court would have been justified in giving the requested charge, its failure to do so does not constitute error (People v Whalen, 59 NY2d 273, 279).

We have considered defendant Reid’s remaining points and find them either unpreserved or without merit.

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

Chief Judge Wachtler and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Alexander taking no part.

In each case: Order affirmed.

      .Penal Law § 160.00 provides:
      "Robbery; defined
      "Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
      "1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
      "2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

      .In UCC 9-503, the Legislature has expressly authorized self-help by a secured party in taking possession of collateral after a debtor’s default but only if the taking can be accomplished without breach of the peace.


text:
    The People of the State of New York, Respondent, v Frank Acevedo, Appellant.
    Argued March 20, 1987;
    decided May 5, 1987

      POINTS OF COUNSEL

      Susan P. Wheatley, Rose H. Sconiers and John A. Ziegler for appellant.

      Richard J. Arcara, District Attorney (Rosemarie A. Wyman and John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Kaye, J.

This appeal presents two questions: first, whether the doctrine of collateral estoppel can be applied to issues of "evidentiary” fact, and second, if so, whether on the present record such fact issues were necessarily established in defendant’s favor at his first trial, so as to preclude their further litigation in defendant’s second trial. We answer both questions in the affirmative.

The nature of the questions before us requires a full account of both trials.

Defendant was charged in two indictments with robbery and criminal possession of a weapon for two separate incidents, both occurring in Buffalo on the same day, at approximately the same time, within several blocks of each other. The charges in indictment No. 49331B (the Jakiela robbery) stemmed from an incident in which defendant and a knife-wielding companion allegedly robbed Mark Jakiela. The charges in indictment No. 49331A (the Nello robbery) related to an incident in which he and a knife-wielding companion allegedly robbed William Nello. Although the two indictments were initially consolidated for trial, they were ultimately severed when the prosecutor was unable to locate Nello.

The First Trial: The Jakiela Robbery

The prosecution proceeded first with the Jakiela robbery. At trial, two conflicting versions were given of a December 27, 1981 encounter between defendant and Mark Jakiela — one by Jakiela, one by defendant.

Jakiela, 23 years old, testified that at 4:30 a.m., he left Casey’s (a bar) for home, having had nothing to drink except two glasses of wine several hours earlier with dinner. On his way to the Thruway entrance, he drove to a gas station at Porter Avenue and Seventh Street. At trial, Jakiela testified that he had stopped there because he needed to use the restroom; in his statement the morning after the robbery, he claimed that he had gone there for gas. The station, however, was closed and the restroom locked. Jakiela testified that, although the area was well lit and the view from the street unobstructed, he urinated outside the gas station.

According to Jakiela, while he was urinating, someone approached him from behind and placed a 12-inch brown-handled knife at his throat. A second man, identified at trial as defendant, came toward him and asked for his wallet. When Jakiela replied that he had no wallet, defendant demanded cash and his gold ring. After these were handed over, defendant ripped open Jakiela’s shirt, looking for chains, and his companion grazed the victim’s chest with the knife. The two robbers fled in a brown car driving the wrong way down Busti Avenue. Jakiela recorded the license plate number — 900 CFH — on a piece of paper and left for home, passing two police stations he knew were nearby. He contacted the police later that morning. The only other witnesses for the prosecution were defendant’s father, who testified that the license plate number given to police by Jakiela was registered to defendant’s mother, and a friend of complainant, who saw him leave Casey’s at 4:30 a.m.

Defendant portrayed a wholly different encounter. Defendant, 21 years old, testified that he spent the evening and early morning of December 27, 1981 with his fiancé at her family’s home, leaving at approximately 3:00 a.m. for a Buffalo bar. About an hour later, he drove to LaSalle Park to smoke a marihuana cigarette; defendant said he had quarrelled with his fiancé and needed to relax. He parked at the side of the road and, as he began rolling a cigarette, a red car pulled up with Jakiela — whom he had never seen before— inside. Jakiela asked defendant what was happening, and if he could join him. Defendant replied that he was "partying” and agreed to allow Jakiela to join him in his car. The two men shared the cigarette, driving slowly through the park to avoid the police. Halfway around the park, Jakiela made a sexual advance, which defendant rejected, and defendant ordered Jakiela out of the car. Jakiela, who had to walk a half mile across the park on a cold night in order to get back to his car, warned defendant: "I’ll get you for this.” Defendant further testified that the license plate of the brown car he was driving was 900 CFH, that the plate was well lit and thus would have been visible as he drove away, and that he had not been in the immediate vicinity of the gas station that morning or participated in any incident in which Jakiela was robbed.

The defense summation focused on both Jakiela’s lack of credibility and the improbability of his story. Counsel argued that a sober individual who had not had a drink for many hours would hardly have stopped at a deserted gas station at 4:30 a.m. to urinate in a well-lit area in full view of the street, especially when there was a motel/bar across the street. He isolated inconsistencies in Jakiela’s account, and noted Jakiela’s failure to stop at either of two nearby police stations as well as his failure to call his own father as a witness to his condition when he arrived home following the incident.

The District Attorney, similarly, viewed the case as an uncomplicated choice of one story or the other. In the prosecutor’s words, "the issue you have to decide is very simple, it’s a relatively straightforward issue * * * you have to believe Mark Jakiela * * * or, you believe the Defendant, it’s that simple.” He further argued: "if you believe Mark Jakiela’s testimony, there’s no question [defendant] was guilty of the robbery * * * there’s no question Mr. Acevedo is guilty. There’s no question and no question is made by Mr. McLeod [defense counsel] of the possession of the weapon that’s in the Indictment, the proof as Mr. Jakiela testified to was that there was a robbery with another person * * * jewelry and cash were stolen from him * * * The knife was possessed by one of them, the other person was present, and the two of them acted in concert, or acted together * * * Also, the identification, obviously, Mr. Jakiela identifies Frank Acevedo as the person who robbed him. The point of it is, if Mr. Jakiela’s testimony is to be believed, the Defendant is guilty, Mr. McLeod makes no bones about that. So it is a simple matter of you deciding whether to believe that testimony, whether you think beyond a reasonable doubt the Defendant is guilty on the basis of that testimony. You have to decide whether that testimony is truthful.”

The court’s instructions included an extensive charge on credibility. No lesser included offense charge, or instruction on identification, was requested or given. After one hour of deliberation, the jury returned a verdict acquitting defendant on both counts of the indictment.

The Second Trial: The Nello Robbery

A few weeks later, defendant was tried for the Nello robbery by the same counsel before the same Judge. The complaining witness — William Nello — testified under subpoena that he had been at two bars during the early morning of December 27, 1981, where he consumed a total of two beers, and left at 4:20 a.m. He then drove home, which was located at 793 Busti Avenue — three blocks from the alleged Jakiela robbery. He left the car, removed his glasses — Nello testified he was nearsighted — and began walking toward the house, when he heard someone shout "hey”. He then observed a vehicle and, believing he recognized the caller, turned toward the car. He was grabbed from behind by a man who placed a foot-long knife to his throat and threw him into the front seat of the vehicle. The car then drove off, and Nello surrendered two rings, $6, and his keys. After about five minutes, his glasses broken, Nello was pushed from the vehicle. He identified defendant as the driver; without his glasses, however, he was unable to read the license plate. He could recall no distinguishing features of the car except that it was brown and possibly a Chevrolet Nova. Defendant’s mother testified that the interior of the car was dilapidated — both seats were torn and strewn with loose foam — and that there were several distinctive stickers visibly displayed inside and outside the car, as well as a tassel dangling from the rearview mirror, and a religious statue affixed to the dashboard. Nello testified that after the incident he awakened a neighbor, borrowed some dimes, and called his girlfriend. Later they reported the incident to the police.

Near the close of the prosecution’s case, the People called Mark Jakiela to the stand. Defense counsel objected, urging that a jury had already rejected Jakiela’s version of his December 27 encounter with defendant; that Jakiela’s testimony would open a "Pandora’s box”, because it would be impossible for the prosecution to bring out what Jakiela purported to know without raising the events related to that indictment, resulting in a “double jeopardy situation”; and that the defense could not fairly deal with Jakiela’s testimony because he could not be cross-examined effectively without introducing prejudicial matters already disposed of. The trial court overruled the objection and permitted Jakiela to testify that on December 27 between 4:30 and 5:00 a.m., he saw defendant and another man at a gas station located at Porter Avenue and Seventh Street. Defendant was the driver of a brown Chevrolet, with license plate number 900 CFH. He left the station driving the wrong way up Busti Avenue, toward Nello’s house. On cross-examination, defense counsel elicited only that Jakiela was at Casey’s at the same time as Nello.

Following defendant’s testimony in which he described the sexual encounter with Jakiela in the park, denied being at the gas station, and denied participating in a robbery of Nello, the People recalled Jakiela as a rebuttal witness to testify that defendant’s version of the park encounter was false and “on the issue of identity” that the man allegedly with defendant that night had a knife. Defense counsel renewed his objection, reasserting that Jakiela was improperly being permitted to testify to matters previously resolved in defendant’s favor and that the defense had no way of combatting the testimony without placing prejudicial matters before the jury. The court overruled the objection, holding that Jakiela could testify that one of the two men he saw that night had a knife, but that he could not testify as to the particular details of the alleged robbery. On rebuttal, Jakiela denied defendant’s version of their encounter and stated that the man he saw with defendant was holding a foot-long knife.

During deliberations, the jury asked to have Jakiela’s testimony read back. That was its only request. Forty-five minutes after hearing Jakiela’s testimony again, the jury returned a verdict of guilty of robbery and criminal possession of a weapon. A divided Appellate Division affirmed the conviction, disagreeing as to whether the issue of defendant’s presence at the gas station was necessarily decided by the first trial. We now reverse.

The Governing Principles

The doctrine of collateral estoppel, or issue preclusion, operates in a criminal prosecution to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial (see, People v Goodman, 69 NY2d 32, 37-38; Ashe v Swenson, 397 US 436, 443). Underlying the doctrine are concerns for conserving the time and resources of courts and litigants, as well as fairness to the defendant. Defendant, having once been acquitted by a jury, should not at a subsequent trial be subjected to the burden of meeting issues that were already necessarily decided in his favor (People v Goodman, 69 NY2d, at 37, supra; People v Berkowitz, 50 NY2d 333, 344; People v Lo Cicero, 14 NY2d 374, 380). By the same token, where the People have had a full and fair opportunity to contest issues, but have failed, it would be inequitable and harassive to again permit the prosecution to establish these same matters, as if the first trial had never taken place (see, People v Plevy, 52 NY2d 58, 64).

Collateral estoppel may implicate constitutional double jeopardy considerations as, for example, where the People seek to relitigate issues resolved against them in a prior prosecution arising from the same offense (see, People v Goodman, 69 NY2d, at 37, supra; Ashe v Swenson, 397 US, at 445-446, supra). The case before us — involving robberies of different individuals at different times and places — does not present that situation. But the doctrine has a broader foundation and scope, resting on independent common-law considerations (see, People v Berkowitz, 50 NY2d, at 343, supra; People ex rel. Dowdy v Smith, 48 NY2d 477, 482-484; see generally, Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv L Rev 1, 29 [1960]). Thus, even where a defendant is being tried for an offense unrelated to the one for which he was earlier prosecuted, collateral estoppel may preclude relitigation of factual issues previously resolved in his favor.

How far the doctrine of collateral estoppel extends to bar relitigation of facts in a different prosecution is the central issue on this appeal. As we have several times recognized, for policy reasons collateral estoppel is not as liberally applied in criminal prosecutions as in civil actions (see, People v Goodman, 69 NY2d, at 37, supra; People v Plevy, 52 NY2d, at 64, supra; People v Berkowitz, 50 NY2d, at 344-346, supra; People v Reisman, 29 NY2d 278, 285). Emphasizing this distinction, and relying on the fact that both Goodman and Ashe expressly cast their discussion of collateral estoppel in terms of "ultimate” facts, the People insist that collateral estoppel must be limited to ultimate facts, and that the facts at issue here being only evidentiary facts, they were properly relitigated in the second trial.

For purposes of the present analysis, whether facts are evidentiary or ultimate is determined by reference to the second trial (People v Goodman, 69 NY2d, at 38, supra). Facts that are essential to conviction in the second trial — in this case, for example, defendant’s presence at Nello’s house at the critical time — are considered the ultimate facts. The factual issues concerning defendant’s presence at the gas station, in a brown Chevrolet, with a knife-wielding companion, while extensively litigated at defendant’s first trial, were not the sine qua non of his conviction at the second trial. Theoretically, the People could have proved that defendant robbed Nello without establishing that moments earlier he had been at a gas station several blocks away, in a brown Chevrolet, with a knife-wielding companion. These issues, therefore, were not issues of ultimate fact. They were, however, relevant to the issue presented at the Nello trial in that proof that defendant was in the immediate vicinity of the alleged robbery tended to support the People’s theory that defendant was responsible for the crime. They were, therefore, issues of evidentiary fact at the second trial.

While Goodman and Ashe both describe collateral estoppel in terms of ultimate facts, neither can be read to so restrict the doctrine. Neither decision required going beyond the ultimate facts; as we stated in Goodman, even adoption of the evidentiary fact rule in that case would not have changed the result reached (69 NY2d, at 40, 41, supra). Moreover, such a limitation would be inconsistent with the rationale for the doctrine as articulated in both decisions.

We perceive no meaningful difference in the unfairness to which a defendant is subjected when the State attempts to prove his guilt by relitigating a settled fact issue, once necessarily decided in his favor, whether it is a question of ultimate fact or evidentiary fact. "In both instances the state is attempting to prove the defendant guilty of an offense other than the one of which he was acquitted. In both instances the relitigated proof is offered to prove some element of the second offense. In both instances the defendant is forced to defend again against charges or factual allegations which he overcame in the earlier trial.” (Wingate v Wainwright, 464 F2d 209, 213-214; see, United States v Keller, 624 F2d 1154, 1158; United States v Mespoulede, 597 F2d 329, 334-335.)

Thus, we conclude that collateral estoppel, in principle, can bar relitigation of evidentiary, as well as ultimate, facts.

Application of Principles to the Facts Presented

The governing principles are more easily articulated than applied, because the precise factual issues encompassed by a general verdict and judgment of acquittal are most often unknown (see, United States v Mock, 604 F2d 341). Defendant’s burden to show that the jury’s verdict in the prior trial necessarily decided a particular factual issue raised in the second prosecution is a heavy one indeed, and as a practical matter severely circumscribes the availability of collateral estoppel in criminal prosecutions. As we recognized in People v Berkowitz (50 NY2d, at 346, supra), "it will normally be impossible to ascertain the exact import of a verdict of acquittal in a criminal trial.” (Emphasis added.) So as not to add even further to defendant’s already formidable burden, and so as to serve the underlying purposes of the collateral estoppel doctrine, courts considering such claims must give a practical, rational reading to the record of the first trial. "The rule is not to be applied with a hypertechnical approach but with realism and rationality by examining all parts of the record of the prior proceeding and concluding from it whether a rational jury could have grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration” (People v Goodman, 69 NY2d, at 40, supra).

Here, the pleadings, evidence, charge and other relevant matter in the Jakiela robbery trial leave no doubt that the verdict of acquittal necessarily decided that defendant and Jakiela encountered each other in the park (as related by defendant), not at the gas station (as related by Jakiela). The jury was asked to determine a single question, of the "starkest simplicity” (United States v Kramer, 289 F2d 909, 914): did defendant, accompanied by a knife-wielding companion, rob Jakiela at the gas station, or did defendant reject his sexual proposition in LaSalle Park? "Unlike many other criminal cases, this one was devoid of alternative possibilities” (id.).

Both the People and the defendant posited the case as an all-or-nothing proposition. Defense counsel attacked Jakiela’s credibility, isolating incongruities and inconsistencies in his testimony as evidence that his entire testimony should be rejected as a vindictive fabrication. He did not challenge Jakiela’s ability to identify defendant; to the contrary, he stressed that the lighting conditions at the gas station were so good that no sober individual would have conducted himself as Jakiela described. Nor did defense counsel contend that the People had failed to prove any particular element of the crimes. As the prosecution noted, "if Mr. Jakiela’s testimony is to be believed, the Defendant is guilty, [his counsel] makes no bones about that”. The jury’s verdict necessarily established that Jakiela’s version of the encounter was the incredible one.

As in every human situation, it is possible to conjure up alternative hypotheses. However, it is not the court’s role to search out conceivable hypotheses for a jury’s verdict, but rather to read the record with realism and rationality. The People argue, for example, that the first jury might in fact have found that defendant and a knife-wielding companion were present at the gas station but did not commit a robbery. But there is no rational basis in the record for such a conclusion; neither party urged it at trial. Moreover, we "must also presume that the jury appropriately applied the charged substantive and procedural rules of law to the determined events” (People v Goodman, 69 NY2d, at 41, supra). If the jury had concluded that defendant and a knife-wielding companion were at the gas station, but did not rob Jakiela, it still would have convicted defendant of criminal possession of a weapon, on the theory of constructive possession charged by the trial court. The jury’s acquittal on this count of the indictment necessarily eliminates the proffered hypothesis. Nor can we accept the Appellate Division majority’s hypothesis that the jury might simply have concluded that no robbery occurred, never reaching the question whether defendant was present at the gas station. Again, there is no rational basis in the record for such a conclusion; the same evidence that would have convinced the jury that no robbery occurred would have led it to the inseparable conclusion that defendant was not present at the gas station. Thus, by acquitting defendant on both counts of the indictment, the jury necessarily concluded that Jakiela’s testimony was incredible, and that defendant was not present at the gas station with a knife-wielding companion.

Collateral estoppel therefore foreclosed relitigation of those issues of evidentiary fact at defendant’s second trial, and it was error to allow the testimony over defendant’s objection.

Finally — given Nello’s vision, the prosecution’s heavy reliance on Jakiela’s testimony in its summation, and the fact that the jury shortly before its verdict was announced asked to rehear that testimony — we reject the People’s contention that the error was harmless.

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

Chief Judge Wachtler and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Alexander taking no part.

Order reversed, etc.

      .Whether facts are "evidentiary” or "ultimate”, for purposes of the present analysis, is determined by reference to the second trial. Only facts that are essential to the second judgment are considered "ultimate” facts.

      . To be distinguished are the "evidentiary facts” discussed in Hinchey v Sellers (7 NY2d 287, 293) and People ex rel. McCanliss v McCanliss (255 NY 456, 460), meaning facts not essential to the first judgment. (See, People v Goodman, 69 NY2d 32, 47 [Meyer, J., dissenting].)