author: Hancock, Jr., J. Alexander, Titone and Bellacosa, JJ.

text:
    Allstate Insurance Company, Appellant, v Edward Mugavero et al., Respondents.
    Argued January 9, 1992;
    decided February 20, 1992

      POINTS OF COUNSEL

      Joseph L. Forstadt and Mitchell C. Shapiro for appellant. I.
    An insurer has no duty to defend or indemnify its insured for acts of child molestation; such conduct is inherently harmful and an intent to injure may be inferred as a matter of law. (Hicksville Motors v Merchants Mut. Ins. Co., 97 AD2d 396, 61 NY2d 661; Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364; Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875; Nationwide Mut. Fire Ins. Co. v Burke, 90 AD2d 626;
      Michigan Millers Mut. Ins. Co. v Christopher, 66 AD2d 148; International Paper Co. v Continental Cas. Co., 35 NY2d 322; Aetna Cas. & Sur. Co. v Shuler, 72 AD2d 591; Trepacz v General Acc. Fire & Life Assur. Corp., 32 AD2d 736; Morgan v Greater N. Y. Taxpayers Mut. Ins. Assn., 305 NY 243; Messersmith v American Fid. Co., 232 NY 161.) II. The plain language of the policy precludes coverage for Ann Mugavero for the acts of her husband, "an insured”. (Simon v Colonial States Brokerage Corp., 128 AD2d 603; Johnson v Travelers Ins. Co., 269 NY 401; Metpath, Inc. v Birmingham Fire Ins. Co., 86 AD2d 407; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390; Greenberg v Medi-Cab Inc., 114 Misc 2d 104; Bretton v Mutual of Omaha Ins. Co., 110 AD2d 46, 66 NY2d 1020; Wyman v Allstate Ins. Co., 29 AD2d 319; Caporino v Travelers Ins. Co., 62 NY2d 234; Weil v Globe Indem. Co., 179 App Div 166; Krupp v Aetna Life & Cas. Co., 103 AD2d 252.)

      Mitchell Gittin for Edward Mugavero and another, respondents. I.
    Appellant has not established that every possible set of facts contemplated by the complaint necessarily falls within the policy exclusion clause. (Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663; International Paper Co. v Continental Cas. Co., 35 NY2d 322; Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66; D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Richard L. v Armon, 144 AD2d 1; People v Concannon, 28 NY2d 854; People v Jemzura, 29 NY2d 590.) II. Neither precedent, logic nor public policy requires an inference of intent to injure on the part of one who engages in acts of sexual contact with children. (Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392; State Farm Fire & Cos. Co. v Irene S., 138 AD2d 589; New York Cent. Mut. Fire Ins. Co. v Heidelmark, 108 AD2d 1093; Messersmith v American Fid. Co., 232 NY 161; McGroarty v Great Am. Ins. Co., 36 NY2d 358; Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875.) III. Appellant should be required to defend the underlying action since its exclusionary clause is ambiguous.

      Ira M. Hariton and Robert J. Zysk for Ellen B. and others, respondents. I.
    Defendant, Allstate, has not sustained its burden of proving that the claims in question fall within the exclusions of its homeowner’s policy. (Mason-Henry Press v Aetna Life Ins. Co., 211 NY 489; Cohen v Jacoby, 27 Misc 2d 396; Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364; Manhattan Cas. Co. v Cholakis, 206 Misc 287, 284 App Div 1041; Willets Point Contr. Corp. v Hartford Ins. Group, 75 AD2d 254, 53 NY2d 879; Neuwirth v Blue Cross & Blue Shield, 62 NY2d 718; Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392.) II. The issues of fact in this case do not permit a finding of intent on summary judgment. (Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392.) III. Allegations of negligence against Aim Mugavero are separate and apart from the acts of her husband and cannot be derivatively merged. (Allstate Ins. Co. v Roelfs, 698 F Supp 815; Allstate Ins. Co. v McCranie, 716 F Supp 1440.) IV. The concept of imputation of intent offers no benefit to society and should not be adopted by this Court.

      Peter G. Eikenberry and Jeffrey Anne Tatum, of the California bar, admitted pro hac vice, for American Insurance Association and another, amici curiae. I.
    The courts that have found no coverage for liability for child molestation have based their decisions on important concerns of public policy and contractual interpretation. II. An ordinary, reasonable person would expect injury to the child to be the consequence of sexual molestation. (Allstate Ins. Co. v Bailey, 723 F Supp 665.) III. The reasonable policyholder would not expect coverage for child molestation. IV. Public policy dictates that an intent to harm the child should be inferred as a matter of law. (Allstate Ins. Co. v Roelfs, 698 F Supp 815; State Farm Fire & Cas. Co. v Smith, 907 F2d 900; Allstate Ins. Co. v Foster, 693 F Supp 886; Allstate Ins. Co. v Thomas, 684 F Supp 1056; Foremost Ins. Co. v Weetman, 726 F Supp 618, 904 F2d 694; Whitt v DeLeu, 707 F Supp 1011.)
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant Edward Mugavero has been sued for the physical and emotional injuries sustained by a six-year-old girl and a nine-year-old boy upon whom he committed acts of sodomy and sexual abuse while the children were in the care of his wife as baby-sitter. His wife, defendant Ann Mugavero, has been sued for her negligence in permitting these acts. The Mugaveros have demanded that their homeowner’s insurance carrier, plaintiff Allstate, afford them a defense and indemnify them from whatever damages may be recovered in the lawsuit. Allstate maintains that there is no coverage. It has brought the instant declaratory judgment action to resolve the dispute. The decisive question is whether the damages sought fall within the policy exclusion for bodily injury "intentionally caused by an insured person”. Supreme Court and the Appellate Division have held that the acts alleged are not excluded. For reasons which follow, we disagree and hold that there is no coverage.

I

The lawsuit against the Mugaveros was brought by defendant Ellen B., individually and on behalf of her children, the infant defendants Christian, age nine at the time of the last occurrence alleged, and Theresa, then age six. In her complaint, Ellen B. pleaded three causes of action against defendant Edward Mugavero. In the first, she alleged that, at various times from 1979 through April 1984, defendant Mugavero "with force and violence, and against the consent of the infant [plaintiffs] intentionally and without provocation, assaulted, sodomized and sexually abused” her children, causing them to "suffer * * * greatly in mind and body”; in the second, that Mugavero committed these intentional actions "without intending the resultant serious injuries”; and in the third, that he committed such acts of assault, sodomy and sexual abuse "negligently and carelessly, and with wanton disregard of others”. A fourth cause of action against defendant Ann Mugavero is based on her negligence in caring for the children. Ellen B.’s verified complaint and her sworn bill of particulars describe forcible acts of sexual abuse allegedly practiced on Christian and Theresa by Edward Mugavero, including acts of anal and oral sodomy.

In Allstate’s declaratory judgment action, the Mugaveros moved for summary judgment. They argued that because Ellen B.’s complaint against them contained allegations of negligence and of unintended injuries from intentional conduct, the policy exclusion for "bodily injury * * * intentionally caused” did not apply. Under the established rule that an insurer’s duty to defend is broader than its duty to indemnify, they contended that Allstate was obligated to provide them with a defense.

Allstate cross-moved for summary judgment based, among other things, on the verified pleadings in the underlying damage action and on the sworn depositions of Christian and Theresa depicting in graphic detail acts of sexual child molestation. Allstate maintained that an intent to injure was infer-able as a matter of law from the very nature of the actions and that Mugavero’s alleged conduct, therefore, fell within the policy exclusion for conduct intentionally causing harm. In opposition to Allstate’s motion, the Mugaveros submitted an affidavit of their attorney stating that "Edward Mugavero has consistently denied the allegations of the infant plaintiffs” and that the "sodomy and sexual abuse indictment against [him] was dismissed on motion of the District Attorney as a result of plea negotiations which resulted in a guilty plea to an unrelated and far less serious crime”. The Mugaveros submitted no proof in evidentiary form by affidavit or otherwise relating to the alleged acts of sexual abuse.

Ellen B. joined the Mugaveros in seeking summary judgment. To support her contention that Edward Mugavero did not intend to harm the children through his intentional actions, she annexed a copy of a statement made by Edward Mugavero to the police upon his arrest for sexual assault stating, inter alia, that he was "comforting the children when he was hugging them”.

Supreme Court denied Allstate’s cross motion, declared that Allstate was obligated to provide the Mugaveros with a defense, and held that the question of indemnification should be reserved until the trial of the action (see, Allstate Ins. Co. v Mugavero, 142 Misc 2d 361). The court reasoned that an insurer could not be relieved of the duty to defend its insured under an intentional harm exclusion where the complaint against the insured contains a cause of action in negligence and one alleging that the acts, while intentional, were not intended to cause injury. It rejected Allstate’s argument that intent to injure was inherent in the intentional acts of sexual abuse committed by Edward Mugavero.

In its affirmance with a divided court, the Appellate Division essentially followed the reasoning of Supreme Court (see, Allstate Ins. Co. v Mugavero, 166 AD2d 474, 474-477). Like Supreme Court, the majority relied on the statement in our decision in Public Serv. Mut. Ins. Co. v Goldfarb (53 NY2d 392, 399) to the effect that an insured may seek indemnity for unintentional injuries resulting from intentional acts. The dissenting Justice voted to grant summary judgment to Allstate, stating that there can be "no reasonable argument that the injuries resulting from the sexual abuse of children could be anything but intended” and noting that "[t]his idea has taken hold in almost all other jurisdictions that have dealt with this issue” (see, 166 AD2d 474, 477-492, supra [Balletta, J., dissenting opn]). Plaintiff Allstate appeals by leave of the Appellate Division. We now reverse.

II

The critical question is whether the harm that resulted to Ellen B.’s children from the sexual assaults allegedly committed on them by Edward Mugavero could have been other than harm “intentionally caused” within the meaning of the policy exclusion. For the answer, we look to the pleadings in Ellen B.’s action and limit our examination to the nature of the conduct of Edward Mugavero, as it is there described (see, Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663, 669-670; Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364, 368). Although Mugavero denies the allegations of the complaint, we must assume — for the purpose of determining coverage — that what is alleged actually happened. Allstate agrees that it is obligated by its policy to provide a defense unless it can “demonstrate that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation” (International Paper Co. v Continental Cos. Co., 35 NY2d 322, 325).

The pleadings depict acts committed by an adult upon young children which, if proven, would constitute, among other crimes, sodomy in the first degree (Penal Law § 130.50 [3]), a class B felony, for engaging in deviate sexual intercourse with a child under the age of 11, and sexual abuse in the first degree (Penal Law § 130.65 [3]), a class D felony, for subjecting a child under the age of 11 to sexual contact. As noted, Edward Mugavero denies the actual occurrence of these acts. But neither he nor any other party contends that the sexual conduct described in the first and second causes of action, assuming that it did occur, could have been anything other than intentional. Rather defendants — adverting to the established rule that the duty to defend is broader than the duty to indemnify (see, Ruder & Finn v Seaboard Sur. Co., supra, at 669) — argue that Allstate must provide a defense because Ellen B.’s complaint alleges: (1) that the intentional actions resulted in unintended harm (the second cause of action) and (2) alternatively, that Mugavero’s actions were the result of his negligence and carelessness (the third cause of action). We reject both contentions.

A

Defendants’ argument that Allstate must defend for unintended injuries from intentional conduct focuses on the wording of the policy exclusion: "We do not cover bodily injury or property damage intentionally caused by an insured person” (emphasis added). Defendants emphasize that an act which is intentional (e.g., lending a car to an underaged, unlicensed driver [see, Messersmith v American Fid. Co., 232 NY 161]) does not mean that the harm that ensues (the accident and resultant injuries) was intended. Clearly more than a causal connection between the intentional act and the resultant harm is required to prove that the harm was intended. Allstate acknowledges this but counters that in the exceptional case of an act of child molestation, cause and effect cannot be separated; that to do the act is necessarily to do the harm which is its consequence; and that since unquestionably the act is intended, so also is the harm. We think the argument finds support in logic and in the generally accepted conception of harm as being inherent in the act of sexually abusing a child.

Nowhere is the societal understanding that the harm from such conduct is inseparable from its performance more clearly demonstrated than in the degree of seriousness which the Legislature attaches to sex crimes involving young children. When the victim is a child under the age of 11, the Legislature has declared that acts of deviate sexual intercourse and sexual contact constitute the serious felonies of first degree sodomy and first degree sexual abuse. The perpetrator’s guilt for such crimes is established merely by proof that the actions occurred, irrespective of whether force was used, the child manifested consent, or the resultant injuries were intended.

Nevertheless, defendants contend that the exclusion does not apply because it requires that the harm be intended rather than the act causing it. And they insist that theoretically the perpetrator can lack the subjective intent of causing harm while committing an act of sodomy or sexual abuse on a young child. But this semantic argument ignores the realities of the often severe emotional and psychological damage that results from acts of sexual abuse, regardless of their motivation or nature (see, e.g., Wakefield and Underwager, Accusations of Child Sexual Abuse, at 339-352; US Dept of Justice, Protecting Our Children: The Fight Against Molestation, A National Symposium, at 133-139 [Oct. 1-4, 1984]; US Dept of Health and Human Servs, Child Sexual Abuse: Incest, Assault and Sexual Exploitation, at 5-7; Porter, Blick and Sgroi, Treatment of the Sexually Abused Child, reprinted in Sgroi, Handbook of Clinical Intervention in Child Sexual Abuse, at 109-112; Governor’s Commn on Domestic Violence, Report to Governor on Legislation to Reform Status Sex Offense Laws, at 9-11). To accept defendants’ proposition would be abhorrent to the legislative policy reflecting the heightened awareness of the serious consequences of child sexual abuse (see, sources cited, supra), the need for preventive measures and the public perception that molesting a child without causing harm is a virtual impossibility. We are not persuaded by the suggestion in Ellen B.’s brief that Mugavero’s actions should be viewed as less injurious because his motives were allegedly benign and his actions assertedly undertaken out of a desire to "comfort * * * the children”.

We believe, moreover, that the ordinary person would be startled, to say the least, by the notion that Mugavero should receive insurance protection for sexually molesting these children, and thus, in effect, be permitted to transfer the responsibility for his deeds onto the shoulders of other homeowners in the form of higher premiums (see, Allstate Ins. Co. v Mugavero, supra, at 480 [dissenting opn]; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398). As one court has put it: "[t]he average person purchasing homeowner’s insurance would cringe at the very suggestion that [the person] was paying for such coverage. And certainly [the person] would not want to share that type of risk with other homeowner’s policyholders” (Rodriguez v Williams, 42 Wash App 633, 636, 713 P2d 135, 137-138, affd 107 Wash 2d 381, 729 P2d 627). For these reasons, we hold that harm to Ellen B.’s children was inherent in the nature of the acts alleged and that whatever injuries resulted were, as a matter of law, "intentionally caused” within the meaning of the policy exclusion. Our decision accords with the conclusions of almost all of the State and Federal courts which have decided identical or very similar coverage questions involving claims arising out of sexual abuse of children (see, App Div dissenting opn [166 AD2d, at 490-492, supra], and cases cited; 7A Appleman, Insurance Law and Practice § 4501.09, 1991 Pocket Part, at 72-73, 76-79, n 10.10, and cases cited [Berdal ed]).

Our holding is not contrary to Public Serv. Mut. Ins. Co. v Goldfarb (53 NY2d 392, supra), as defendants maintain. There, the insured was a dentist who was sued for sexual abuse of an adult woman in the course of providing dental treatment. The policy was a "Dentist’s Professional Liability Policy” which covered punitive as well as compensatory damages arising from dental services and " 'based upon * * * [mjalpractice, error, negligence or mistake, assault, slander, libel [or] undue familiarity’ ” (id., at 398 [emphasis added]). The court held that the policy specifically covered damages "arising out of unlawful or inappropriate physical contact which occurs during the course of dental treatment” (Public Serv. Mut. Ins. Co. v Goldfarb, supra, at 398) but — despite the broad language of the coverage — concluded that as a matter of public policy indemnification for punitive damages or intentional injuries would not be permitted (id., at 399-400). Our holding in Public Service would, under the unusual language of that professional policy, have permitted indemnification for unintended injuries to an adult patient during treatment from an intended "assault” or act of "undue familiarity”. But that holding has no bearing on the entirely different question here, involving a specific exclusion for intended injuries in a standard homeowner’s policy: i.e., whether intentional acts of sexual abuse on small children can be viewed separately from the harm inherent in those acts.

B

We are not persuaded by defendants’ alternative argument that the allegations of negligence in Ellen B.’s third cause of action require Allstate, at the least, to defend the Mugaveros. It is settled law that an insurer must afford its insured a defense unless it can show that the allegations of the complaint put it solely within the policy exclusion (International Paper Co. v Continental Cas. Co., supra, at 325). But the analysis depends on the facts which are pleaded, not the conclusory assertions (see, Goldberg v Lumber Mut. Cas. Ins. Co., 297 NY 148, 154). Thus, where the theory of liability on which the injured party is proceeding cannot be determined from the facts pleaded, the insurer must defend (see, Spoora-Lsher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875, 876-877). But where it can be determined from the factual allegations that “no basis for recovery within the coverage of the policy is stated in the complaint, [a court] may sustain [the insurer’s] refusal to defend” (Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364, 368, supra; see, e.g., New York Cas. Ins. Co. v Ward, 139 AD2d 922 [summary judgment granted to insurer where insured sued for injuries caused by assault notwithstanding conclusory allegations of negligence]; Contracting Plumbers' Coop. Restoration Corp. v Hartford Acc. & Indem. Co., 59 AD2d 921, 922 [no coverage where facts pleaded put occurrences outside locations covered by policy despite general “shotgun allegations of negligence”]).

Here, Ellen B.’s third cause of action — after repleading the factual allegations of intentional, forceful and violent assault, sodomy and sexual abuse contained in the first and second causes of action — sets forth the totally inconsistent assertion that these intentional acts were committed “negligently and carelessly, and with wanton disregard of others”. No different or additional facts are pleaded. Nor do any of defendants’ motion papers suggest that there is the least evidentiary support for the conclusory characterization of Mugavero’s conduct as negligent or provide an explanation of how the intrinsically intentional acts of assault, sodomy and sexual abuse could be negligently performed. We agree with plaintiff Allstate that the third cause of action contains nothing which brings the complaint within the coverage of the policy (see, Lionel Freedman, Inc. v Glens Falls Ins. Co., supra, at 368).

Ill

Finally, defendants contend that there should, at least, be coverage for the claim asserted against Ann Mugavero in Ellen B.’s fourth cause of action based on her separate acts of negligence in caring for the children. We do not agree.

The Allstate homeowner’s policy provides, under the heading "Exclusions — Losses We Do Not Cover”:

“We do not cover bodily injury or property damage intentionally caused by an insured person.” (Emphasis added.)

What is excluded in this provision is a specifically defined class of injury — i.e., one intentionally caused by an insured person, Inasmuch as the injuries giving rise to the claims here were caused by Edward Mugavero — an insured person — these injuries are not covered.

Defendants argue that because Ellen B.’s complaint does not allege intentional harm caused by Ann Mugavero — also an insured person under the policy — there should be coverage as to her. Under their approach, each insured person is viewed separately and if that particular person has not caused intentional injury, the exclusion as to that person does not apply. The argument depends upon reading the exclusionary clause as if it applied to intentional injuries caused by the particular "insured person” whose coverage is in question, instead of by any "insured person” under the policy. In other words, defendants interpret the exclusion as if it read "caused by the insured person” instead of "by an insured person”. But this is not what the policy says. We agree with the Federal court in Allstate Ins. Co. v Roelfs (698 F Supp 815 [D Alaska]) — interpreting an identical homeowner’s policy — that "the exclusion * * * clearly and unambiguously excludes from coverage all claims which arise out of the intentional acts of any one of the insureds” (id., at 822 [emphasis added]).

Although no New York appellate court has previously addressed the question, other courts have interpreted this or similar exclusionary clauses as we do (see, Allstate Ins. Co. v Gilbert, 852 F2d 449 [9th Cir]; Allstate Ins. Co. v McCranie, 716 F Supp 1440 [SD Fla], affd sub nom. Allstate Ins. Co. v Manning, 904 F2d 713 [11th Cir]; Allstate Ins. Co. v Roelfs, supra; Allstate Ins. Co. v Foster, 693 F Supp 886 [D Nev]; Travelers Ins. Co. v Blanchard, 431 So 2d 913 [La Ct App]). In contrast, exclusionary clauses barring coverage of intentional harm by "the insured”, rather than by "an insured”, have been held to exclude coverage only for harm caused by the particular insured committing the act (see, e.g., Pawtucket Mut. Ins. Co. v Lebrecht, 104 NH 465, 190 A2d 420).

For these reasons, the order should be reversed, with costs, the motion by the defendants for summary judgment denied, plaintiff’s cross motion for summary judgment granted and judgment granted to Allstate declaring that it has no obligation to defend either Edward Mugavero or Ann Mugavero in the underlying action.

Alexander, Titone and Bellacosa, JJ.

(dissenting in a joint memorandum). We would affirm the order of the Appellate Division essentially for the reasons stated by the majority at that court. While the alleged conduct is unquestionably among the most heinous of criminal acts, we are not called upon here to pass judgment on those acts. Rather, we are merely asked to resolve a dispute about insurance coverage. As abhorrent and offensive as it is to contemplate that anyone should enjoy the safety net of insurer-sponsored defense and indemnification for alleged sexually aberrant behavior directed against children, courts cannot allow emotion and sympathy to eclipse or unsettle long-standing principles of contractual insurance law. Experience has taught that precision and predictability in this highly regulated field are essential juridical values. Once courts engage in selecting ad hoc exceptions, they step on a slippery slope leading to an indefinite destination. The majority’s declaration that the alleged conduct of the insured and the resultant injuries were "intentional”, as a matter of law, based on inferences drawn from the inherent nature of the conduct, challenges settled precedents, distorts the particular insurance policy’s exclusion provisions and obliterates the indispensable value of definitiveness.

Chief Judge Wachtler and Judges Simons and Kaye concur with Judge Hancock, Jr.; Judges Alexander, Titone and Bellacosa dissent and vote to affirm in a memorandum.

Order reversed, etc.

      . "Deviate sexual intercourse” is defined in Penal Law § 130.00 (2) as:
      "2. 'Deviate sexual intercourse’ means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva.”

      . "Sexual contact” is defined in Penal Law § 130.00 (3) as:
      "3. 'Sexual contact’ means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.”

      . " 'Insured Person’ — means you and, if a resident of your household, any relative and any dependent person in your care” (Allstate policy).


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Lemont Laing, Respondent. The People of the State of New York, Appellant, v Todd Wade, Respondent.
    Argued January 15, 1992;
    decided February 20, 1992

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney, Queens County (Andrew Zwerling of counsel), for appellant in the first and second above-entitled actions.
    The orders suppressing identification evidence pursuant to CPL 710.30 are appealable. (People v Rumpel, 111 AD2d 481; People v O'Sullivan, 121 AD2d 658; People v Hernandez, 146 AD2d 646; People v Evans, 58 NY2d 14; People v Coppa, 45 NY2d 244; United States v Scott, 437 US 82; People v Sullivan, 142 AD2d 695; People v Morales, 69 AD2d 536; People v Giles, 73 NY2d 666; People v Baker, 64 NY2d 1027.)

      David M. Cherubin for respondent in the first above-entitled action.
    The People cannot appeal an order made pursuant to CPL 710.30 because the Legislature has chosen not to authorize such an appeal. (Croveno v Atlantic Ave. R. R. Co., 150 NY 225; People v Kearse, 58 Misc 2d 277; People v De Jesus, 54 NY2d 447; People v Santos, 64 NY2d 702; People v Coppa, 45 NY2d 244; Matter of Santangello v People, 38 NY2d 536; Matter of Ryan [Hogan], 306 NY 11; People v Rossi, 5 NY2d 396; Matter of State of New York v King, 36 NY2d 59; People v Zerillo, 200 NY 443.)

      David Louis Cohen for respondent in the second above-entitled action.
    The order precluding identification evidence pursuant to CPL 710.30 is not appealable by the People. (People v Taylor, 65 NY2d 1; People v Rivera, 73 AD2d 528; People v O'Doherty, 70 NY2d 479; People v Boughton, 70 NY2d 854; People v White; 73 NY2d 468; People v Brown, 140 AD2d 266; People v Coppa, 45 NY2d 244; People v Santos, 64 NY2d 702; People v Rumpel, 111 AD2d 481; People v O'Sullivan, 121 AD2d 658.)

      Christine Duisin, Assistant Attorney-General, for New York State District Attorneys’ Association, amicus curiae, in the first above-entitled action.
    Orders issued pursuant to CPL 710.30 are appealable. (People v White, 73 NY2d 468; Matter of Bath & Hammondsport R. R. Co. v New York State Dept. of Envtl. Conservation, 73 NY2d 434; Ferres v City of New Rochelle, 68 NY2d 446; Berger v Heckler, 771 F2d 1556; Matter of Sutka v Conners, 73 NY2d 395; People v McDonald, 68 NY2d 1; People v Coppa, 45 NY2d 244; Matter of Long v Adirondack Park Agency, 76 NY2d 416; Matter of Town of New Castle v Kaufmann, 72 NY2d 684; Doctor’s Council v New York City Employees’ Retirement Sys., 71 NY2d 669.)

      Robert M. Morgenthau, District Attorney (Mark Dwyer of counsel), for New York County District Attorney, amicus curiae, in the first and second above-entitled actions.
    The People have the right to appeal a preclusion order entered pursuant to CPL 710.30. (People v O’Doherty, 70 NY2d 479; People v White, 73 NY2d 468; People v Weaver, 49 NY2d 1012; People v Berrios, 28 NY2d 361; People v Gissendanner, 48 NY2d 543; People v Taylor, 65 NY2d 1.)
   OPINION OF THE COURT

Bellacosa, J.

In both of these cases, the People claim that CPL 450.20 (8) authorizes them to appeal to the Appellate Division from trial orders precluding the introduction of identification evidence for failure to comply with CPL 710.30’s timely notice provision. We affirm the orders of the Appellate Division dismissing the People’s appeals to that court (People v Laing, 168 AD2d 635; People v Wade, 170 AD2d 468), because CPL 710.30 orders are not among the enumerated authorizations in CPL 450.20 and because there is no interpretative alternative to that exclusive route for a People’s appeal.

Defendant Laing was arrested on November 15, 1988 in connection with a robbery and stabbing of a gas station attendant nine days earlier in Queens. On the day of arrest, the police showed the victim a single photograph of defendant from which an identification was made. At arraignment, defendant received a CPL 710.30 (1) (b) notice, along with the District Attorney’s Voluntary Disclosure Form reflecting the victim’s identification. After a Wade hearing, Supreme Court granted defendant’s motion to suppress the identification. Prior to jury selection, the People alerted defendant that they had learned of another witness to the crime who had also identified defendant from a single photograph approximately one week after the crime. The prosecutor argued that neither a CPL 710.30 notice nor a Wade hearing were required because that identification was confirmatory. The trial court disagreed and precluded the additional witness’s identification testimony. The People filed an appeal from that order to the Appellate Division.

Defendant Wade was charged with criminal sale of a controlled substance, third degree, based upon his alleged sale of crack cocaine to an undercover police officer in Queens. Following the criminal exchange, the defendant was identified at the scene by the undercover officer. At arraignment, defendant was served with a Voluntary Disclosure Form but not with a CPL 710.30 notice. Prior to any suppression hearings, Supreme Court granted defendant’s motion to preclude the use of the undercover officer’s identification testimony on the ground that the People had failed to serve the required CPL 710.30 (1) (b) notice of the showup identification. The court rejected the People’s arguments that the Voluntary Disclosure Form constituted adequate notice to satisfy CPL 710.30 and that the identification was merely confirmatory. The People filed an appeal from the order to the Appellate Division.

The Appellate Division dismissed both appeals, holding that CPL 450.20 (8) does not authorize appeals by the People from CPL 710.30 preclusion orders, and that in the absence of enumerated authorization in the statute, the People may not appeal such orders. A Judge of this Court granted permission to appeal in each case to the People.

CPL 710.30 requires that within 15 days after arraignment and before trial the People must serve upon the defendant notice of their intention to offer at trial "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified [the defendant].” (CPL 710.30 [1] [b].) Failure to give timely notice mandates precluding the People from offering such evidence at trial, with two exceptions not applicable here (see, CPL 710.30 [2], [3]). The CPL 710.30 notice requirement facilitates the opportunity for defendants to test the reliability of the People’s proposed identification testimony prior to trial (People v Newball, 76 NY2d 587, 591; People v White, 73 NY2d 468, 474, cert denied 493 US 859). A 1976 amendment to CPL 710.30 (L 1976, ch 194, § 3) pinpointed the time for serving notice from "before trial” to "within fifteen days after arraignment and before trial”. This change, along with conforming changes to the omnibus pretrial motion provisions, was designed to further another goal of CPL 710.30 — "the orderly, swift and efficient determination of pretrial motions” (People v O’Doherty, 70 NY2d 479, 488). This Court has recognized that "[t]he exclusionary sanction for failure to comply contained in CPL 710.30 (3) reflects a [legislative] judgment that the loss of the use of the evidence is an acceptable price to pay to achieve the desired goals.” (People v O'Doherty, supra, at 488-489.)

CPL article 450 governs appealability of orders in criminal proceedings. CPL 450.20 delineates the instances in which the People may appeal as of right to an intermediate appellate court. Significantly absent is any authorization for a People’s appeal from an order precluding evidence pursuant to CPL 710.30. It is fundamental that in the absence of a statute expressly authorizing a criminal appeal, there is no right to appeal (People v De Jesus, 54 NY2d 447, 449; Matter of Santangello v People, 38 NY2d 536, 538-539; Matter of State of New York v King, 36 NY2d 59, 63; People v Zerillo, 200 NY 443, 446). This principle recognizes the Legislature’s policy prerogative "to limit appellate proliferation in criminal matters” (Matter of State of New York v King, supra, at 63).

The People contend, nevertheless, that CPL 450.20 (8) should be interpreted to authorize a People’s appeal from a CPL 710.30 preclusion order by, in effect, melding CPL 710.30 with CPL 710.20 suppression orders, for which an appeal is explicitly allowed. CPL 450.20 (8) authorizes a People’s appeal from "[a]n order suppressing evidence, entered before trial pursuant to section 710.20. ” (Emphasis added.) Section 710.20 allows a defendant to move to suppress evidence on several grounds, including improper pretrial identification procedures (CPL 710.20 [6]), but not including failure to provide timely notice as required by CPL 710.30.

Courts must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope and application of statutes (Matter of Alonzo M. v New York City Dept of Probation, 72 NY2d 662, 665; see also, Matter of Holtzman v Goldman, 71 NY2d 564, 570-573; People v Douglass, 60 NY2d 194). This is especially so in one of the most highly structured and highly particularized articles of procedure — appeals. Where a statute delineates the particular situations in which it is to apply, " ' "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” ’ ” (Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 665, supra, quoting Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208-209). The words and numerical references and incorporations in CPL 450.20 could not be plainer — the Legislature left CPL 710.30 preclusion orders out of the People’s appeal authorization section.

The People, and amici curiae who favor the People’s view of the issue, argue that CPL 450.20 (8) should be interpreted "broadly” to permit appeal of any trial order which results in the unavailability of evidence, including those for CPL 710.30 notice violations. They urge that appellate courts should, for the limited purpose of CPL 450.20 (8) appealability, treat CPL 710.30 preclusion orders as if they were CPL 710.20 suppression orders inasmuch as failure to give timely notice provides an additional ground for, in effect, seeking suppression of such evidence. Their argument concludes that the list of grounds for suppression contained in CPL 710.20 is not meant to be all-inclusive.

The argument cannot be sustained. This Court has recognized in an analogous context that "[t]he People’s failure to provide timely notice of intent is not one of the grounds for a suppression motion under CPL 710.20. Nor is the notice requirement a mere ingredient of a motion to suppress statements or identifications under [CPL 710.20 (3) or (6)]. By definition, CPL 710.30 operates independently, in advance of the suppression motion. The [CPL 710.20] motion to suppress does not become necessary unless and until the court allows the defaulting prosecutor to provide late notice.” (People v Taylor, 65 NY2d 1, 6.) While "CPL 710.30 is related to two of the constitutional bases for suppression under CPL 710.20— involuntary statements and improper identifications” (id., at 6), Taylor articulates a substantive and functional differentiation between CPL 710.20 and CPL 710.30 and clearly suggests that they are not interchangeable mechanisms.

The People’s appeal to policy-driven judicial rewriting of the legislation would require us to read CPL 710.30 into CPL 710.20 and 450.20 (8) and, thus, to create a right to appeal out of thin air. The Legislature, for whatever reason, simply did not include the words and statutory numbers in its very detailed enactments. While the People and their amici are correct that the omission leaves them out of appeals court, " 'any arguments for a change in the practice, however persuasive, must be addressed to the legislature’ ” (Matter of Santangello v People, 38 NY2d 536, 539, supra). In sum, this Court cannot rejigger the language or specific prescriptions of CPL 450.20 (8) to fill the People’s void, without trespassing on the Legislature’s domain and undermining the structure of article 450 of the CPL — the definite and particular enumeration of all appealable orders (see, People v O'Doherty, 70 NY2d 479, 489, supra).

Finally, and for like reasons, we reject the People’s and the amici’s alternative suggestions that the Court should "look through” the labels of the trial courts’ CPL 710.30 preclusion orders and merely declare that the orders are really CPL 710.20 orders for appealability purposes. The trial orders of preclusion at issue in these cases are unquestionably based on the People’s failure to provide timely CPL 710.30 notice of intent to use identification evidence. They are plainly not CPL 710.20 suppression orders masquerading as CPL 710.30 preclusion orders, and we cannot blithely convert their nature and nomenclature for appeal convenience.

Since there is no statutory provision upon which an appeal from a CPL 710.30 preclusion order may be predicated in this exclusively regimented field, we conclude that the Appellate Division properly dismissed the People’s appeals.

Accordingly, the order of the Appellate Division in each case should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

In each case: Order affirmed.


author: Bellacosa, J. Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Rodney Russ, Appellant.
    Argued January 15, 1992;
    decided February 25, 1992

      POINTS OF COUNSEL

      Ursula Bentele and Robert M. Pitler for appellant. I.
    The prosecution’s evidence, resting solely on the testimony of a teen-ager who provided her incriminating testimony only after being arrested for perjury midtrial and held overnight in a jail cell, and who gave several hopelessly contradictory versions of what she saw, was insufficient to sustain appellant’s conviction. (Bram v United States, 168 US 532; Lyons v Oklahoma, 322 US 596; People v Caserino, 16 NY2d 255; People v Valletutti, 297 NY 226; LaFrance v Bohlinger, 499 F2d 29, cert denied sub nom. LaFrance v Meachum, 419 US 1080; United States ex rel. Portelli v LaVallee, 469 F2d 1239, 411 US 950; People v Reid, 69 NY2d 469; People v Portelli, 15 NY2d 235, 16 NY2d 537, 382 US 1009; People v Foster, 64 NY2d 1144, 474 US 857; People v Ledwon, 153 NY 10.) II. Appellant was denied his fundamental right to a public trial when the courtroom was closed to spectators during a voir dire of the key prosecution witness based solely on the prosecutor’s stated belief that she was afraid of the audience, and without inquiring of the witness. (People v Jones, 47 NY2d 409, 444 US 946; People v Kin Kan, 78 NY2d 54; Waller v Georgia, 467 US 39; People v Clemons, 78 NY2d 48; People v Mateo, 73 NY2d 928; People v Cuevas, 50 NY2d 1022.) III. Appellant was deprived of a fair trial by the prosecutor’s improper introduction and exploitation of Grand Jury testimony, and by the court’s failure to instruct the jury, after they had specifically requested the Grand Jury testimony, that this testimony was not evidence-in-chief, and should only be used for impeachment purposes. (People v Hickman, 148 AD2d 937, 75 NY2d 891; People v Fitzpatrick, 40 NY2d 44; People v De Jesus, 101 AD2d 111, 64 NY2d 1126; People v Berg, 59 NY2d 294; People v Beaman, 122 AD2d 848.)

      Charles J. Hynes, District Attorney (Margaret E. Mainusch, Jay M. Cohen and Victor Barall of counsel), for respondent. I.
    The evidence at trial was legally sufficient to prove defendant’s guilt beyond a reasonable doubt. (People v Contes, 60 NY2d 620; People v Gruttola, 43 NY2d 116; People v Reid, 69 NY2d 469; People v Portelli, 15 NY2d 235; United States v One Parcel of Real Estate, 906 F2d 110; LaFrance v Bohlinger, 499 F2d 29, cert denied sub nom. LaFrance v Meachum, 419 US 1080; United States ex rel. Portelli v LaVallee, 469 F2d 1239, 411 US 950; Miranda v Arizona, 384 US 440; Brown v Walker, 161 US 591; People v Reed, 40 NY2d 204.) II. The court did not abuse its discretion in closing the courtroom to determine if Lawrence would assert her Fifth Amendment privilege against self-incrimination. (Waller v Georgia, 467 US 39; People v Jones, 47 NY2d 409, 444 US 946; People v Hinton, 31 NY2d 71; People v Jelke, 308 NY 56; People v Colon, 71 NY2d 410; People v Jones, 82 AD2d 674, 55 NY2d 751; People v Joseph, 59 NY2d 496; People v Hagan, 24 NY2d 395, 396 US 886; People v Morin, 96 AD2d 1135; United States ex rel. Bruno v Herald, 408 F2d 125.) III. The trial court properly permitted the People to call Leana Gonzalez as a witness and properly denied defendant’s request for a supplemental instruction regarding the Grand Jury testimony. (People v Huber, 144 AD2d 583; People v Magee, 128 AD2d 811; People v Davis, 118 AD2d 796; People v De Jesus, 101 AD2d 111, 64 NY2d 1126; People v Fitzpatrick, 40 NY2d 44; People v Berg, 59 NY2d 294.)
   OPINION OF THE COURT

Bellacosa, J.

Defendant appeals, by leave of a Judge of this Court, from an order of the Appellate Division affirming his conviction for murder after a jury trial. The reading of the Grand Jury testimony of teen-age witness Gonzalez to the petit jury under extremely prejudicial and improper circumstances constituted reversible error. The prosecution adduced "testimony” evincing only Gonzalez’s refusal to implicate defendant in the crime in order to indirectly present to the jury otherwise unusable, highly inculpatory evidence. The resulting prejudice in the context of the staging and presentation of testimonial evidence before the petit jury exceeds tolerable limits.

Because the admission of Gonzalez’s Grand Jury testimony engendered serious prejudice which was exacerbated by the manner in which the trial and “testimony” proceeded with respect to the other teen-age witness, Lawrence, we hold that the trial court erred in admitting Gonzalez’s Grand Jury testimony. We thus reverse the order of the Appellate Division and grant a new trial.

Defendant Russ and a codefendant, not before us, were accused of shooting and killing Hector Rodriguez in the course of a mugging in the hallway of a housing project in Brooklyn in June 1984. Nearly a year later, a police officer met Gonzalez and Lawrence at the local precinct where they had gone to visit a friend on an unrelated matter. Gonzalez and Lawrence and their families lived in that same housing project where the defendants also lived with their families. The victim also lived in the projects. The officer, who knew the two teen-agers, questioned them in connection with the open investigation of the Rodriguez slaying. He eventually secured their cooperation and, under subpoena before the Grand Jury, they testified and implicated defendant. However, the witnesses recanted 10 months later to a defense investigator in written statements indicating they did not see who shot Rodriguez. Shortly before trial, Gonzalez made a statement in the District Attorney’s office confirming her Grand Jury testimony. Material witness orders were issued for Lawrence and Gonzalez.

When the prosecutor called Lawrence to testify on the first day of trial, she testified that she and Gonzalez saw only the victim on the night of the shooting, and she did not see defendant or the shooting. The prosecutor then impeached Lawrence by reading her entire Grand Jury testimony into evidence. The second day on the stand, Lawrence, after being assigned counsel, invoked her 5th Amendment rights. Since she, like her friend Gonzalez who was scheduled to testify next, had fully recanted prior to and at trial and did not incriminate defendant on the stand at the trial, the prosecution interrupted Lawrence’s midafternoon testimony and obtained a continuance. Lawrence, then 17 years old, was (1) arrested; (2) charged with perjury; (3) taken in handcuffs crying and frightened to the District Attorney’s office; (4) interrogated and threatened with 2 to 7 years in prison; (5) removed to Central Booking for fingerprinting; (6) held until 5:00 a.m. the next morning without sleep; (7) moved to a precinct lockup; and (8) returned to court at 9:00 a.m. where she was kept in handcuffs except for her time on the stand. Lawrence’s postarrest and postincarceration testimony, tending to inculpate defendant by describing his role in the mugging, resulted immediately in the perjury charges being dropped. She was only then released from police custody.

After intermittent pretrial sparring between the People and the next witness, Gonzalez, she was called to the witness stand and also invoked the Fifth Amendment with the advice of counsel, outside the presence of the jury. After the court conferred immunity on Gonzalez — except for perjury — she testified outside the jury’s presence and made it unquestionably clear and certain that she did not see defendant in the hallway the night of the shooting and would not give substantive testimony against him at the trial. Before being called to the stand, witness Gonzalez was also made aware of the coercive conduct visited on her companion and cowitness, Lawrence. Faced with Gonzalez’s determined decision not to cooperate and her predictable refusal to give testimony, the People nevertheless, over objection, called Gonzalez to the stand with their no-lose, fail-back strategy of at least presenting her Grand Jury testimony against defendant to the petit jury for the purported purpose of attacking her credibility. The People contend, in effect, that hope springs eternal and that their objective — despite Gonzalez’s unequivocal and undeviating representations and the peculiar circumstances of this case — was to secure her direct evidence testimony implicating defendant. The People, not surprisingly, failed in their purported purpose as to this witness — Gonzalez did not directly implicate defendant in the charged crime in her "testimony” —yet the People succeeded in the bottom-line goal. They now claim that the ensuing limiting instruction, warning the jury against considering the damning Grand Jury testimony as evidence-in-chief, cured any infirmities or concerns about their tactics (see, CPL 60.35; People v Fitzpatrick, 40 NY2d 44). We disagree.

However, before turning to our dispositional analysis, «we note that the sum total of Lawrence’s coerced eventual testimony barely and circumstantially inculpated defendant. To be precise, Lawrence’s direct testimony after her midtrial arrest and incarceration offered some evidence that defendant was seen with his codefendant searching the mugged victim’s pockets. Both Lawrence and Gonzalez insisted throughout trial that they never saw a shooting. They explicitly denied seeing either defendant participate in any killing or shooting. Because there is sufficient circumstantial evidence under the standard of review that pertains in our Court, the People’s case survives traditional insufficiency of evidence analysis (see, People v Contes, 60 NY2d 620). Dismissal of the indictment is therefore not warranted or an appropriate corrective action (contrast, People v Reed, 40 NY2d 204; People v Ledwon, 153 NY 10).

However, in the context and circumstances of this case, the flagrant use of Gonzalez’s Grand Jury testimony at trial transgressed the line drawn in People v Fitzpatrick (40 NY2d 44, 52-53, supra). The People rationalize and characterize as unfortunate or undesirable the circumstances as they bear especially on the prejudicial use of Grand Jury testimony in the context of the key issues of this trial. The use of Grand Jury testimony in this manner was not made in good faith as required, but rather to circumvent the evidentiary rule protection against otherwise inadmissible evidence.

The People urge us to slot the treatment of witness Lawrence insofar as it bears on the over-all context and prejudice into a mere credibility contretemps — on the basis of which it is suggested that this Court need not be unduly concerned or interfere because the jury, aware of all the permutations, would somehow do the right thing. The argument is unavailing. Some egregious circumstances plainly do not justify such deference (see, Jackson v Denno, 378 US 368; People v Huntley, 15 NY2d 72, 78; see also, Lego v Twomey, 404 US 477, 484-485; LaFrance v Bohlinger, 499 F2d 29, 32-35, cert denied sub nom. LaFrance v Meachum, 419 US 1080; see also, Rochin v California, 342 US 165, 172; United States v Archer, 486 F2d 670 [Friendly, J.]). These last cited cases illustrate situations, such as were employed especially against witness Lawrence to "legally” coerce her testimony, in which relying on the ultimate discernment and virtue of the jury is not adequate. Experience has taught that such reliance offers only chilly comfort to prejudiced defendants, no less than to innocent victimized witnesses, and to the maintenance of the integrity of the criminal justice process.

The collective sum of egregious features of this case bears contextually on the seriously prejudicial Grand Jury testimony of Gonzalez. Since we are unanimous that the prosecutor’s trial tactics are unacceptable, this Court has a serious obligation to explain its views in the context of relevant record material, not in some conclusory fashion. This serves the purpose of articulating the reasons for the judgment in the particular case and of reflecting our expectation that future cases will not suffer recurrence of such evidentiary detours and prejudicial tactics (compare, People v Smith, 168 AD2d 653, lv denied 77 NY2d 967). We also note that the prosecutorial actions of this case are not to be confused with material witness procedures, which are very different in kind and degree from what happened in the trial of this matter (see, CPL art 620). Nor may we give any credence or pause to the totally untenable claim of the People that they were acting in order to avoid a missing witness charge.

Had the reactive prosecutorial dissatisfaction with these two witnesses — teen-age civilians and innocent bystander witnesses — been directed at an accused, courts would not likely condone the prejudicial impact of “evidence” adduced in this fashion (see, Lego v Twomey, 404 US 477, 484-485, supra; LaFrance v Bohlinger, 499 F2d 29, 32-35, cert denied sub nom. LaFrance v Meachum, 419 US 1080, supra). People v Portelli (15 NY2d 235, cert denied 382 US 1009), on which the People heavily rely, provides no governance or guidance for this case. It is fundamentally different and contains its own cautions against improper conduct such as was utilized in the circumstances of the instant case (see also, United States ex rel. Portelli v LaVallee, 469 F2d 1239).

The Court is not unmindful of the frustration visited on the legitimate attempt to prosecute this case. But the failure and unwillingness of the recalcitrant witnesses to implicate defendant at trial came as no surprise (People v Fitzpatrick, 40 NY2d 44, 52-53, supra). However detrimental this development was to the prosecution’s case and its resolute quest for a conviction, no cognizable justification was presented for using Gonzalez’s Grand Jury testimony in this extremely prejudicial manner in the context of the over-all handling of these civilian bystander teen-age witnesses. Measured use of the awesome power of the State must remain the benchmark, and the Court is obligated to impose the strongest disincentives against serious deviations from that standard with its adverse resulting effects on the fairness of the trial given to defendant.

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

Hancock, Jr., J.

(concurring). I concur with the result and with so much of the opinion as relates to the People’s improper introduction and use of the Grand Jury testimony of Leana Gonzalez. The People’s conduct with the respect to Karen Lawrence, however, is not a basis for the Court’s reversal. While I agree that the Assistant District Attorney’s treatment of this witness was unacceptable, I do not find that the record warrants an extended discussion of this issue.

Chief Judge Wachtler and Judges Kaye and Titone concur with Judge Bellacosa; Judge Hancock, Jr., concurs in result in a separate opinion in which Judges Simons and Alexander concur.

Order reversed, etc.


author: Chief Judge Wachtler.

text:
    The People of the State of New York, Respondent, v Troy Hollman, Appellant. The People of the State of New York, Respondent, v Gregory Saunders, Appellant.
    Argued January 7, 1992;
    decided February 20, 1992
    Argued January 15, 1992; decided February 20, 1992

      POINTS OF COUNSEL

      Susan Hofkin Salomon and Philip L. Weinstein for appellant in the first above-entitled action.
    The police questioning of appellant, while he was seated in the rear of an inter-city bus scheduled to depart, constituted a seizure, or, at least, a common-law inquiry, which was predicated, impermissibly, on an all-embracing drug courier profile and appellant’s placement of his baggage. (People v De Bour, 40 NY2d 210; Michigan v Chesternut, 486 US 567; United States v Mendenhall, 446 US 544; Brower v Inyo County, 489 US 593; People v Cantor, 36 NY2d 106; People v Leung, 68 NY2d 734; United States v Grant, 920 F2d 376; United States v Baskin, 886 F2d 383; United States v $25,000 US. Currency, 853 F2d 1501; United States v Savage, 889 F2d 1113.)

      Robert M. Morgenthau, District Attorney (Norman Barclay and Mark Dwyer of counsel), for respondent in the first above-entitled action.
    The courts below correctly found that Officer Canale was justified in approaching defendant and asking him questions, and that defendant abandoned his bag. (People v De Bour, 40 NY2d 210; People v Chipp, 75 NY2d 327; Florida v Bostick, 501 US —, 111 S Ct 2382; People v Lindsay, 72 NY2d 843; People v Kinchen, 60 NY2d 772; People v Charleston, 54 NY2d 622; People v P. J. Video, 68 NY2d 298, 479 US 1091; People v Cantor, 36 NY2d 106; People v Edmund, 169 AD2d 195; People v Johnson, 66 NY2d 398.)

      William A. Sandback for appellant in the second above-entitled action.
    The lower court erred in denying defendant-appellant’s motion to suppress physical evidence in that there was no reasonable suspicion to stop defendant and search his bag nor was there voluntary consent to do so. (People v John BB., 56 NY2d 482, 459 US 1010; People v De Bour, 40 NY2d 210; United States v Mendenhall, 446 US 544; Matter of Antoine W., 162 AD2d 121; Terry v Ohio, 392 US 1; United States v Cortez, 449 US 411; People v Gonzalez, 39 NY2d 122.)

      Robert M. Morgenthau, Bistrict Attorney (Patricia Curran and Mark Bwyer of counsel), for respondent in the second above-entitled action.
    The hearing court correctly found that Detective Canale was justified in approaching defendant and asking him questions, and that defendant consented to the search of his bag. (People v Harrison, 57 NY2d 470; People v Rivera, 14 NY2d 441, 379 US 978; People v De Bour, 40 NY2d 210; Pennsylvania v Mimms, 434 US 106; Terry v Ohio, 392 US 1; People v Rivera, 121 AD2d 166, 68 NY2d 786; People v Howard, 50 NY2d 583, 449 US 1023; People v Moore, 47 NY2d 911; People v Balanco, 158 AD2d 367, 75 NY2d 963; People v Nichols, 156 AD2d 129; 76 NY2d 740.)
   OPINION OF THE COURT

Chief Judge Wachtler.

In People v De Bour (40 NY2d 210, 223), we set out a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity. If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The common-law right of inquiry, a wholly separate level of contact, is “activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion” (People v De Bour, supra, at 223). Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.

In the two cases before us, we revisit De Bour in order to clarify the difference between a request for information and the common-law right of inquiry. Because the two terms on their face are so close in meaning, the legal significance we intended each to have has become obscured. The result has been inconsistency in the evaluation of markedly similar police encounters.

We are convinced that the four-part De Bour analysis still has vitality. Each progressive level, however, authorizes a separate degree of police interference with the liberty of the person approached and consequently requires escalating suspicion on the part of the investigating officer. We conclude, as a general matter, that a request for information involves basic, nonthreatening questions regarding, for instance, identity, address or destination. As we stated in De Bour, these questions need be supported only by an objective credible reason not necessarily indicative of criminality. Once the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer’s investigation, the officer is no longer merely seeking information. This has become a common-law inquiry that must be supported by a founded suspicion that criminality is afoot.

I. People v Hollman

On November 4, 1989, Richard Canale, an undercover narcotics officer on duty at the Port Authority Bus Terminal in New York City, observed the defendant Troy Hollman coming down an escalator. The defendant was carrying an orange bag and appeared to be looking around the lower level of the terminal as he descended. When he reached the bottom, he looked around again and then went back up the escalator.

A few minutes later, Canale again observed defendant coming down the escalator, this time with a companion, who was carrying a black knapsack. Canale continued to watch the defendant and his companion. The two spoke briefly in front of a men’s room, and then separated, standing 10 feet apart with the defendant’s orange bag placed on the ground between them. The two maintained these positions for approximately 20 minutes. The defendant retrieved his bag, went into the men’s room, and was followed by his companion. After the two exited the men’s room, they resumed their positions. About 15 minutes later, they boarded a bus. The defendant placed his orange bag in the overhead rack two or three seats up from the seat which he eventually took for himself. The defendant’s companion placed his bag directly above his seat, but defendant reached up and pushed his companion’s bag closer to his own bag. The two sat together in the rear of the bus.

Canale approached the two men, identified himself as a narcotics officer and requested their permission to ask a few questions. At this time, Canale was either standing in front of, or kneeling upon, the seat directly in front of the defendant and his companion. A second officer was located behind Canale.

Canale asked the two if they were traveling together and the defendant answered that they were not and that they had just met. The officer then asked them where they were headed; the defendant said he was going to Virginia, while his companion stated that he was going to "Carolina.” Finally, Canale asked where the defendant had checked his luggage. The defendant replied that they did not have any luggage or carry-on bags. When addressed directly, the defendant’s companion gave the same answer. The two denied that the orange bag and the black knapsack belonged to them. The officer asked other passengers whether the bags belonged to them. When they too denied ownership of the bags, the officer opened them, finding less than an ounce of crack cocaine in a sneaker box in the orange bag and empty plastic vials and some white powder in the knapsack.

Hollman was charged with criminal possession of a controlled substance in the first and third degrees, criminally using drug paraphernalia in the second degree and endangering the welfare of a child. The defendant moved to suppress the drugs, claiming that the search and seizure had been unlawful. A suppression hearing was conducted on March 5, 1990, and the defendant’s motion was denied. The suppression court concluded that Canale’s observations were sufficient to provide him with a founded suspicion that criminality might be afoot, which entitled him to make an inquiry.

After the defendant’s suppression motion was denied, count one of the indictment, charging criminal possession of a controlled substance in the first degree, was dismissed and defendant pleaded guilty to third degree possession in full satisfaction of the indictment. He appealed to the Appellate Division, which affirmed the judgment of the lower court. On appeal, the defendant argued that Canale’s conduct constituted a seizure that needed to have been supported by reasonable suspicion of an actual or imminent crime. The Appellate Division determined that this argument was unpreserved, but reached it in the interests of justice and found the officer’s conduct to have been proper. The court found that the officer’s questions constituted a request for information that needed to be supported only by an objective, credible reason not necessarily indicative of criminality. Finally, the court concluded that the orange bag had been abandoned. A Judge of this Court granted the defendant’s application for leave to appeal.

II. People v Saunders

On February 1, 1989, Officer Canale, this time accompanied by two other officers, was stationed near Platform 68 at the Port Authority Bus Terminal. Buses departing from this platform head for Baltimore, Washington and Virginia. Canale observed the people standing in line for the 5:00 p.m. bus. The bus began boarding at approximately quarter to five. The defendant joined the line at about five minutes to five. The defendant was carrying a zippered gym bag. According to Canale, in contrast to the other passengers, who were casual in demeanor, the defendant appeared nervous, scanning the interior of the boarding area and at one time giving his place in line to another passenger.

Canale observed the defendant for approximately five minutes. When the defendant approached the bus, he caught Canale’s eye, hesitated slightly, and entered the boarding area. Canale approached the defendant, with the other two officers standing two to three feet behind him. He identified himself as a narcotics officer, and asked the defendant if he could speak to him. Defendant agreed and stepped off the line. Canale asked him where he was going, and he replied that he was going to Baltimore. When Canale asked him the reason for his trip, the defendant answered that he was going to visit family. Canale then asked the defendant if he could search his bag. The defendant said yes. The officer repeated the question and the defendant again said yes. According to Canale, the defendant looked around rapidly during this conversation, speaking rapidly and in a broken voice. The officer opened the bag and inside a sneaker found a brown paper bag that contained a plastic bag of cocaine powder and another plastic bag containing 38 vials of cocaine.

The defendant was charged with criminal possession of a controlled substance in the second degree and criminally using drug paraphernalia in the second degree. The defendant moved to suppress the drugs on the ground that the search and seizure had been unlawful. A suppression hearing was held on June 12,1989, and the defendant’s motion was denied. The court found that Canale’s approach and questioning constituted a request for information and was permissible. The court further found that the defendant had consented to the search of his gym bag.

After his suppression motion was denied, the defendant pleaded guilty to criminal possession of a controlled substance in the third degree. He appealed to the Appellate Division, which affirmed his conviction, with one Justice dissenting. The Appellate Division agreed that Canale’s encounter with the defendant had been a request for information and not a common-law inquiry and that the defendant had consented to the search of his bag. The dissenting Justice, on the other hand, argued that Canale’s encounter with the defendant was a common-law inquiry that had to be supported by a founded suspicion that criminality was afoot, something that was lacking under the facts present in this case. The dissenter also argued that the result was inconsistent with prior decisions in People v Irizarry (168 AD2d 377, affd 79 NY2d 890 [decided today]) and Matter of Antoine W. (162 AD2d 121, affd 79 NY2d 888 [decided today]), in which the Appellate Division had labeled police-initiated encounters similar to the one at issue here common-law inquiries that had to be supported by a founded suspicion of criminality. The dissenting Justice at the Appellate Division granted defendant Saunders’ application for leave to appeal. People v Irizarry (supra) and Matter of Antoine W. (supra) have also been appealed to this Court.

III.

Since our decision in De Bour almost 16 years ago, courts have struggled over the difference between a request for information and a common-law inquiry. No doubt some of this confusion is attributable to the similarity between the two terms. The Appellate Division in Matter of Antoine W. (supra) theorized that the De Bour request for information referred to "an 'informational’ approach to a citizen by the police (e.g., 'where’s the fire?’ or 'which way did he run?’ * * *)” (162 AD2d, at 122). This interpretation, however, misapprehends the facts in De Bour and ignores the case law that has issued from this Court in the years following De Bour.

In De Bour, we framed the issue as "whether or not a police officer, in the absence of any concrete indication of criminality, may approach a private citizen on the street for the purpose of requesting information” (People v De Bour, supra, at 213). In that case, two police officers walking their beat at 12:15 a.m. observed the defendant walking on the same side of the street in their direction. When the defendant came within 30 or 40 feet of the officers, he crossed the street. The officers followed him and asked him a series of questions.

We held that the approach and the questioning were permissible because they were supported by an articulable reason that justified the police action taken (id., at 213). We noted that police officers serve many different functions within society and that the rules governing encounters with civilians will to a large extent depend upon the police officer’s purpose in initiating the encounter. For instance, we stated that a police officer performing public service functions, not related to law enforcement, has wide latitude to approach people and ask for information (id., at 218). We cited as an example the right of a police officer to approach passersby in order to find the parent of a lost child. This public service approach for information is not the focus of De Bour, however, and to the extent that the Appellate Division suggested otherwise in Matter of Antoine W. (supra) this was clearly error.

Our holding in De Bour relates to police officers who are engaged in their criminal law enforcement capacity. We stated that "a policeman’s right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter” (id., at 219). We singled out the area of crime prevention for special mention, noting that "[s]ince this function is highly susceptible to subconstitutional abuses it will be subject to the greatest scrutiny” (id., at 220). Under the facts present in Be Bour, where the encounter was brief and lacking in harassment or intimidation, we concluded that the police approach and subsequent questioning were reasonable and constituted a mere request for information (id., at 220).

An obvious starting point in our effort to clarify the difference between a request for information and a common-law inquiry is an examination of the type of questions asked in Be Bour. The officers asked the defendant what he was doing in the neighborhood and then asked for identification. These questions we permitted as part of a request for information. Thus, Be Bour suggests that even in their law enforcement capacity, police officers have fairly broad authority to approach individuals and ask questions relating to identity or destination, provided that the officers do not act on whim or caprice and have an articulable reason not necessarily related to criminality for making the approach (id., at 219). Be Bour also stands for the proposition that the brevity of the encounter and the absence of harassment or intimidation will be relevant in determining whether a police-initiated encounter is a mere request for information.

In later cases, we were sometimes less than precise in spelling out the difference between those questions that constituted a request for information and those that constituted a common-law inquiry. People v Moore (47 NY2d 911, revg for reasons stated in dissenting opn 62 AD2d 155), however, is more explicit. There, the police officers observed the defendant, who was bleeding and limping, carrying a pillowcase within which the officers could see the outline of a television set. This, according to the Appellate Division dissent upon which we rested our opinion, constituted an objective credible reason for making a request for information. The officers approached, asked the defendant where he was coming from and what was in the bag. We considered these questions to be a part of the request for information, and therefore reasonable. Only after being told that the pillowcase contained a television set and a fur coat did we consider the situation to have reached the level of a common-law inquiry (62 AD2d, at 159). Significantly, it was only at that point that the officer asked if he could look in the pillowcase (62 AD2d, at 159).

Our decision today is partially shaped by our own precedent and our commitment to deciding these cases in a manner that is consistent with Be Bour and its progeny. Be Bour itself suggests strongly that it is normally proper for a police officer, acting with the requisite level of suspicion, to approach an individual for information and as part of that encounter, ask questions that relate to the person’s identity and reason for being in the area. This would include a request for identification.

Our holding in Moore represents the outer contours of what is permissible during a request for information. Although we permitted the officers in Moore to ask about the contents of a bag as part of a request for information, the facts in that case are unusual. There, the defendant was carrying a pillowcase through which a television set was visible. Moore certainly does not stand for the general proposition that it is always permissible for a police officer who approaches an individual for information to ask about the contents of a bag.

We recognize that the tone of police-initiated encounters with civilians can be subtle and ever-shifting, that words and gestures are susceptible to many varying interpretations, and that suspicion can grow based on intangibles evident only to the eyes of a trained police officer. Despite our sensitivity to the rapidity with which suspicion can escalate, however, we must place limits on the power of the police to pick out targets and subject them to invasive questioning based on nothing more than the objective and credible reason required for a request for information.

To that end, we emphasize that a request for information is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area. If the individual is carrying something that would appear to a trained police officer to be unusual, the police officer can ask about that object. A pillowcase containing a television set is clearly unusual. A zippered blue bag carried by an individual about to board a bus is not.

Once the police officer’s questions become extended and accusatory and the officer’s inquiry focuses on the possible criminality of the person approached, this is not a simple request for information. Where the person approached from the content of the officer’s questions might reasonably believe that he or she is suspected of some wrongdoing, the officer is no longer merely asking for information. The encounter has become a common-law inquiry that must be supported by founded suspicion that criminality is afoot. No matter how calm the tone of narcotics officers may be, or how polite their phrasing, a request to search a bag is intrusive and intimidating and would cause reasonable people to believe that they were suspected of criminal conduct. These factors take the encounter past a simple request for information.

We are well aware that this distinction is a subtle one. It is certainly unsettling to be approached by a police officer and asked for identification. Even though we term this a request for information, we do not mean to suggest that a reasonable person would not be taken aback by such a request. To some extent, then, our distinction rests on the content of the questions, the number of questions asked, and the degree to which the language and nature of the questions transform the encounter from a merely unsettling one to an intimidating one. We do not purport to set out a bright line test for distinguishing between a request for information and a common-law inquiry. These determinations can only be made on a case-by-case basis. In evaluating the propriety of police-initiated encounters, however, suppression courts should consider the factors we have identified above in determining whether a request for information or a common-law inquiry has occurred.

In People v Cantor (36 NY2d 106, 112), we recognized that "[s]treet encounters between the patrolman and the average citizen bring into play the most subtle aspects of our constitutional guarantees. While the police should be accorded great latitude in dealing with those situations with which they are confronted it should not be at the expense of our most cherished and fundamental rights.” We are well aware of the serious nature of the drug problem in this State. Undercover narcotics operations are an important component of the effort to stem the illicit flow of drugs into and out of the New York City area. We are also well aware that undercover officers develop a familiarity with their terrain and would likely be sensitive to behavior that a less-schooled onlooker would dismiss as trivial (see, People v Rosemond, 26 NY2d 101, 104). The four-tiered method for analyzing police encounters gives officers acting in their law enforcement capacity leeway in approaching individuals for information. It does not, however, permit police officers to ask intrusive, potentially incriminating questions unless they have founded suspicion that criminality is afoot.

Applying these principles to the cases now before us, we conclude that the police acted properly in their encounter with Hollman, but improperly as to Saunders.

When Officer Canale approached Hollman and his companion, he had observed them standing 10 feet apart for several minutes with the orange bag between them. He had seen Hollman place the orange bag several seats in front of his own, and then saw him push his companion’s bag closer to his, again away from the seats he and his companion eventually took. These actions certainly gave rise to an objective credible reason, not necessarily indicative of criminality, for approaching the two men.

Canale then asked them if they were traveling together and where they were going. These questions are consistent with a request for information, and we consider them to be permissible under the circumstances. Next, the officer asked whether the two men had checked their luggage. We consider this to be permissible as well, although it clearly is more directed toward possible criminality than the earlier two questions. Given the officer’s observations, however, we believe that this question was part of a legitimate request for information.

When the two men denied that they had bags, this clearly aroused the officer’s suspicion, since he had observed them carrying the orange bag and the knapsack in the terminal and carefully place those bags away from their seats before sitting down. At that point, Canale had founded suspicion that criminality was afoot. He was now permitted to engage in the greater degree of intrusion inherent in the common-law inquiry. Canale next asked if they knew to whom the orange bag and black knapsack belonged. They said they did not. He then asked the other passengers if they knew who owned the bags. Only after everyone in the bus denied ownership of the bags did the officer open the bags and find the concealed drugs.

The Appellate Division concluded that Canale’s questions as to whether the two men were traveling together, as to their destinations, and as to their luggage constituted a request for information under the De Bour guidelines. We agree that the officer’s questions regarding travel plans, destination, and where they had placed their luggage were part of a request for information but find that the questions regarding the ownership of the bags were, given Canale’s knowledge, a proper exercise of the officer’s common-law right to inquire. Thus, there was no overbearing police pressure and the approach and ensuing questioning were in all respects proper. The Appellate Division’s finding of abandonment, a mixed question of law and fact, is otherwise supported by the record and is therefore not subject to our further review (People v Harrison, 57 NY2d 470, 477; People v Hogya, 56 NY2d 602).

We reach a different conclusion, however, in the case of Gregory Saunders. In that case, the defendant caught Officer Canale’s attention because, according to Canale, he appeared nervous and repeatedly scanned the terminal. Canale testified at the suppression hearing that as the defendant’s attention was drawn into the boarding area, and when he and Canale made eye contact, he noticed Saunders hesitate.

To approach an individual for information, a police officer need only have an objective, articulable reason, as we have noted above. Here, Saunders’ behavior provided Canale with an objective reason for the approach. Similarly, the officer acted properly when he asked Saunders his destination. Again, this is the sort of question we have held in the past constitutes a request for information.

Canale crossed the line, however, when he asked to search the defendant’s bag. The defendant’s behavior, while it may have provided the officer with adequate basis for an approach and for a few general, nonaccusatory questions, was certainly not so suspicious as to warrant the further intrusion of a request to rummage through the defendant’s luggage. Because the defendant’s consent was a product of the improper police inquiry, the Appellate Division was in error when it found that the defendant had in fact consented to the search of his bag (see, People v Gonzalez, 39 NY2d 122, 128; see also, 3 LaFave, Search and Seizure § 8.2 [d] [2d ed]).

One last issue remains to be addressed. The People have asked us to overrule De Bour in light of a number of United States Supreme Court cases which have made it increasingly clear that police-initiated encounters falling short of actual seizures (see, Terry v Ohio, 392 US 1, 19, n 16) do not implicate the Fourth Amendment (see, e.g., Florida v Bostick, 501 US —, —, 111 S Ct 2382, 2386; Michigan v Chesternut, 486 US 567, 573-574; Immigration & Naturalization Serv. v Delgado, 466 US 210, 216-217; Florida v Royer, 460 US 491, 498 [White, J.]; see also, California v Hodari D., 499 US —, —, 111 S Ct 1547, 1550-1551).

At the time De Bour was decided, we noted that there was "scant appellate authority on this subject” (People v De Bour, supra, at 219). As the People accurately argue, this is no longer the case. In the years since De Bour became the law in New York State, the Supreme Court has held that approaches which do not amount to seizures are not entitled to protection under the Fourth Amendment. The test, as stated recently by the Supreme Court, is whether "a reasonable person would feel free 'to disregard the police and go about his business’ ” (Florida v Bostick, 501 US, at —, supra, 111 S Ct, at 2386, quoting California v Hodari D., 499 US, at —, supra, 111 S Ct, at 1551). If the civilian would feel free to go, "the encounter is consensual and * * * will not trigger Fourth Amendment scrutiny unless it loses its consensual nature” (Florida v Bostick, 501 US, at —, supra, 111 S Ct, at 2386).

De Bour represents the culmination of a number of State common-law cases that provided a framework for the evaluation of police-civilian encounters (see, e.g., People v Cantor, supra; People v Ingle, 36 NY2d 413; People v Rosemond, supra; People v Rivera, 14 NY2d 441). In De Bour, constitutional law and common law both played a part in the articulation of the four-part test. Although we stated that "constitutional considerations do not disappear” when police encounters fall below the level of a seizure (People v De Bour, supra, at 217), we did not rest our analysis squarely upon the language of either the Federal or State Constitution. Rather, we noted that "[t]he basic purpose of the constitutional protections against unlawful searches and seizures is to safeguard the privacy and security of each and every person against all arbitrary intrusions by government. Therefore, any time an intrusion on the security and privacy of the individual is undertaken with intent to harass or is based upon mere whim, caprice or idle curiosity, the spirit of the Constitution has been violated” (id., at 217). To some extent, then, our holding in De Bour was not compelled by the specific language of either the State or the Federal Constitution. Rather, it reflected our judgment that encounters that fall short of Fourth Amendment seizures still implicate the privacy interests of all citizens and that the spirit underlying those words required the adoption of a State common-law method to protect the individual from arbitrary or intimidating police conduct.

The continued vitality of De Bour, therefore, is not contingent upon the interpretation that the Supreme Court gives the Fourth Amendment, because De Bour is largely based upon considerations of reasonableness and sound State policy. We still believe that police encounters that are not seizures or arrests for constitutional purposes should be evaluated under the De Bour test. The interests in privacy and security that led us to adopt that test as a matter of State common law are no less vital today. Further, De Bour has been the law in this State for almost 20 years. Although we have seen fit to clarify it today, we see no reason to eliminate entirely its oversight of police encounters that fall below the level of a Fourth Amendment seizure. "[T]he aims of predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens” (People v Johnson, 66 NY2d 398, 407) are best served by continuing to evaluate police-civilian encounters along the guidelines set forth in De Bour. Consequently, as a matter of State common law, we will continue to apply De Bour to assess the propriety of encounters that do not rise to the level of a seizure for purposes of the Fourth Amendment.

Accordingly, in the case of People v Hollman, the order of the Appellate Division should be affirmed. In the case of People v Saunders, the order of the Appellate Division should be reversed, defendant’s guilty plea vacated, his motion to suppress granted and the indictment dismissed.

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

In People v Hollman: Order affirmed.

In People v Saunders: Order reversed, guilty plea vacated, defendant’s motion to suppress granted and indictment dismissed.