author: Jasen, J.

text:
    Bertram Virag et al., Doing Business as Echo Adult Home, Respondents, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Appellant.
    Argued November 16, 1981;
    decided December 17, 1981

      POINTS OF COUNSEL

      Edward J. Kuriansky, Deputy Attorney-General (Arthur G. Weinstein and Jonathan B. Rosenbloom of counsel), for appellant.
    I. The prosecutor is not required to demonstrate the relevancy of the evidence sought in order to defeat a motion to quash a Grand Jury subpoena; the witness must overcome a presumption of validity by showing that the evidence could not be relevant. (Matter of Additional Jan. 1979 Grand Jury of Albany Supreme Ct. v Doe, 50 NY2d 14; Matter of Manning v Valente, 272 App Div 358, 297 NY 681; People v Doe, 35 AD2d 118; Matter of Pantojas, 628 F2d 701; Matter of Liberatore, 574 F2d 78; Matter of Beverly v United States, 468 F2d 732; Universal Mfg. Co. v United States, 508 F2d 684; Matter of Grand Jury Proceedings [Hergenroeder], 555 F2d 686; Matter of Grand Jury Proceedings [Schofield], 486 F2d 85; United States v Chemical Foundation, 272 US 1.) II. In this case, the relevancy of the evidence to the stated purpose of the investigation was manifest. (Matter of Gold v Menna, 25 NY2d 475; Matter of Horowitz, 482 F2d 72; Matter of Grand Jury Proceedings [Schofield], 486 F2d 85, 507 F2d 963, cert den sub nom. Schofield v United States, 421.US 1015; Matter of Hughes,
      633 F2d 282; Matter of Grand Jury Proceedings [Smith], 579 F2d 836.)

      Charles T. Matthews for respondents.
    It is incumbent upon the Special Prosecutor to give some factual basis for issuing a broad Grand Jury subpoena duces tecum in response to a motion to quash. (Matter of Windsor Park Nursing Home v Hynes, 42 NY2d 243, 1015; Matter of Heisler v Hynes, 42 NY2d 250, 1015; Matter of Hynes v Moskowitz, 44 NY2d 383, 439 US 921; Carlisle v Bennett, 268 NY 212; Matter of A’Hearn v Committee on Unlawful Practice of Law of N. Y. County Lawyers’ Assn., 23 NY2d 916, 395 US 959; Matter of La Belle Creole Int., S.A. v Attorney-General of State of N.Y., 10 NY2d 192; Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; Matter of Horowitz, 482 F2d 72, 414 US 867; Matter of Manning v Valente, 272 App Div 358, 297 NY 681; United States v Doe [Schwartz], 457 F2d 895, 410 US 941; Matter of B. T. Prods, v Barr, 44 NY2d 226.)
   OPINION OF THE COURT

Jasen, J.

The question presented by this appeal is whether, in response to a motion to quash a Grand Jury subpoena duces tecum on relevancy grounds, a prosecutor is obligated to come forth with a factual demonstration that the items sought by the subpoena have some relation to the subject matter of the Grand Jury’s investigation.

On July 10, 1980, petitioners were served with separate subpoenas duces tecum requiring them to appear before a Nassau County Grand Jury and produce certain books, records and documents pertaining to the Echo Adult Home of Laurel Hollow, New York. The Echo Adult Home is a private proprietary home for adults owned and operated by petitioners. According to the riders attached to these subpoenas, petitioners, in effect, were required to produce all the business records of the home for the period January 1, 1975 through June 30, 1980.

On August 18,1980, petitioners moved by order to show cause to quash the subpoenas on the ground that the materials sought were not relevant to the matter being investigated by the Grand Jury. Specifically, petitioners alleged that the Deputy Attorney-General had been investigating a complaint arising out of the death of a 92-year-old former resident of the home and that this incident did not justify a “sweeping investigation of the financial and operating conditions at the Echo Adult Home.” In addition, petitioners alleged that production of all the records requested by the subpoenas would make it impossible to operate the home.

In response to petitioners’ motion to quash the Grand Jury subpoenas duces tecum, a Special Assistant Attorney-General submitted a sworn statement in which she affirmed that the investigation of the Echo Adult Home was not precipitated by the death of the elderly resident. The Special Assistant, however, did not disclose the exact nature of the Grand Jury’s investigation. Rather, she alluded to a broader inquest into determining whether “crimes had been committed in the operation of the Echo Adult Home” and stated that the business records of the home were “clearly related to the subject of [that] inquiry.” Relying on the presumption of validity accorded to Grand Jury subpoenas, the Special Assistant asserted that it was petitioners’ burden to establish that the records were not relevant to the Grand Jury’s investigation, and that petitioners had failed to meet this burden. Finally, in answering petition- \ ers’ contention that delivery of all the subpoenaed evidence would impair the operation of the home, the Special Assistant stated that the Deputy Attorney-General’s office was willing to abide by whatever conditions the court would set in terms of retention of the business records of the home.

County Court granted petitioners’ application to quash the subpoenas, stating that “[s]ince the Deputy Attorney General did not deem it necessary to inform the court of the nature of his investigation, the question of relevancy must be determined in favor of petitioners.” While noting that there need not be probable cause in order for a Grand Jury to conduct an investigation, County Court was of the view that “there must be some factual showing that the subpoenaed documents relate to some criminal activity” and that the “Special Prosecutor has totally failed to establish any such factual showing.”

On appeal, a unanimous Appellate Division affirmed. Although agreeing with the Deputy Attorney-General that he need not make public disclosure of the Grand Jury’s investigation, the court below held that he is “required, when challenged, to demonstrate relevancy to the court”. According to the Appellate Division, the Deputy Attorney-General “could have made an in camera disclosure of the subpoena’s relevancy to the investigation, and upon his failure to do so, the subpoena was properly quashed.”

This court granted leave to appeal in order to review the propriety of imposing an affirmative burden on a prosecutor to establish the relevancy of the materials sought by a Grand Jury subpoena when confronted by a motion to quash. We conclude that there should be a reversal.

At the outset, it should be noted that there is a fundamental distinction between a nonjudicial, “office” subpoena and a Grand Jury subpoena. An office subpoena is executed and the witness examined pursuant to it without direct judicial supervision. Furthermore, unlike a witness called before the Grand Jury, a party served with an office subpoena does not have the right to request to be taken immediately before a Judge for prompt resolution of any dispute concerning the scope and propriety of the examination being conducted. Indeed, in the absence of the more flexible contempt procedure available to a Grand Jury withess, a party served with an office subpoena, by seeking judicial resolution of the issues which may arise during questioning by the Deputy Attorney-General, runs the risk of criminal prosecution. (See Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 231-232.)

Thus, an office subpoena is subject to challenge by a motion to quash on the grounds that the materials sought are irrelevant, and, when so challenged, it is incumbent upon the issuer to come forward with a “factual basis” which establishes the relevancy of the items sought to the subject matter of the investigation before a witness will be compelled to comply with the subpoena’s mandate. (Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; Matter of A’Hearn v Committee on Unlawful Practice of Law of N.Y. County Lawyers’ Assn., 23 NY2d 916, cert den 395 US 959; Matter of La Belle Creole Int. S.A. v Attorney-General of State of N.Y., 10 NY2d 192.) However, this requirement of subject matter identification is not very exacting. All that the issuer of an office subpoena need demonstrate in order to avoid a motion to quash is that the materials sought have “a reasonable relation to the subject matter under investigation and to the public purpose to be achieved.” (Carlisle v Bennett, 268 NY 212, 217; see, also, Matter of Goldin v Greenberg, 49 NY2d 566, 571-572; Matter of La Belle Creole Int. S.A. v Attorney-General of State of N.Y., supra, at p 196.)

In contrast, a Grand Jury subpoena duces tecum is governed by quite different principles. As was recently observed: “[The] obligation to come forth with evidence before the Grand Jury is not dependent upon a prospective witness or his attorney being informed of the scope of the investigation. * * * Certainly, the Governor is not required to broadcast publicly the purpose of the investigation in his executive order, nor is the special prosecutor required to inform a witness of the Grand Jury’s underlying purpose. As explained by then Judge Lehman when writing for this court in Matter ofSpector v Allen (281 NY 251, 257): ‘The grand jury must often conduct investigations to determine whether a crime has been committed, before it is possible for the District Attorney to formulate a charge or to point to any particular person. The successful prosecution of crime would be intolerably impeded if a District Attorney could be compelled to divulge, before he is ready, the nature of an investigation by the grand jury or the name of the person or persons suspected.’ Stated another way, ‘[t]he grand jury is an arm of the court. Its subpoenas are presumptively valid and can only be challenged by an affirmative showing of impropriety. * * * No witness may avoid obedience to the directions of the court without establishing by concrete evidence that the subpoena was issued in bad faith or that it is for some other reason invalid.’” (Matter of Additional Jan. 1979 Grand Jury of Albany Supreme Ct. v Doe, 50 NY2d 14, 20, quoting Matter of Manning v Valente, 272 App Div 358, 361, affd 297 NY 681.)

The presumption of validity enjoyed by Grand Jury subpoenas is, in one sense, an aspect of the broader presumption of regularity applicable to all official acts of individuals functioning under an oath of office. (See Richardson, Evidence [10th ed], §72.) This presumption of validity, however, also stems from the very nature of the Grand Jury itself. The Grand Jury is an investigatory body with broad exploratory powers, the scope of which are “not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” (Blair v United States, 250 US 273, 282; see Matter of Edge Ho Holding Corp., 256 NY 374, 381-382.)

As a practical matter, it must also be remembered that a Grand Jury is but a temporary body and the service of its members is of only limited duration. Constant delays occasioned by unmeritorious motions to quash followed by routine appeals can lead not only to the loss of evidence and the fading of witnesses’ memories, but also may completely frustrate the course of legitimate investigation into potentially criminal activity. As noted by the Supreme Court, “[w]hen the grand jury is performing its investigatory function into a general problem area *** society’s interest is best served by a thorough and extensive investigation” (Wood v Georgia, 370 US 375, 392) and, absent some indication of abuse, “[a]ny holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” (United States v Dionisio, 410 US 1, 17.)

Furthermore, in the context of a Grand Jury investigation, relevancy is a concept not as easily susceptible to definition or delineation as in the area of evidence at trial. In large part, this is due to the manner in which a Grand Jury operates. As one court has observed: “[A] grand jury has no catalog of what books and papers exist and are involved in a situation with which it is attempting to deal, nor will it ordinarily have any basis for knowing what their character or contents immediately are. It can therefore hardly be expected to be able to designate or call for what its exact needs may ultimately turn out to be. * * * [I]t obviously has a right * * * to a fair margin of reach and material in seeking information, not merely direct but also as a matter of possible light on seemingly related aspects whose significance it is seeking to uncover.” (Schwimmer v United States, 232 F2d 855, 862, cert den 352 US 833.) Thus, insofar as Grand Jury subpoenas duces tecum are concerned, relevance is necessarily a term of broader import than when applied to evidence at trial.

In short, a Grand Jury subpoena duces tecum, unlike an office subpoena, enjoys a presumption of validity that requires the party challenging the subpoena to demonstrate, by concrete evidence, that the materials sought have no relation to the matter under investigation. Bare assertions of the lack of relevancy will not suffice. Rather, given the ranging, exploratory nature and operation of a Grand Jury, the witness served with a subpoena must show that “the documents are so unrelated to the subject of inquiry as to make it obvious that their production would be futile as an aid to the” Grand Jury’s investigation. (Matter of Manning v Vatente, 272 App Div 358, 361, supra.) Stated somewhat differently, before a witness is entitled to an order quashing a Grand Jury subpoena duces tecum, he must demonstrate “that a particular category of documents can have no conceivable relevance to any legitimate object of investigation by the * * * grand jury”. (Matter of Horowitz, 482 F2d 72, 80; accord Matter of Pantojas, 628 F2d 701; Matter of Liberatore, 574 F2d 78; cf. United, States v Mara, 410 US 19; but see Matter of Grand Jury Proceedings [Schofield], 486 F2d 85.)

Admittedly, this presumption of validity imposes a difficult burden of proof on one seeking to quash a Grand Jury subpoena duces tecum on relevancy grounds. Nevertheless, because a Grand Jury’s task is to inquire into the possible existence of criminal conduct, its investigatory powers are necessarily broad; it should not be hindered in its quest by witnesses who continually litigate the threshold validity of its subpoenas. There has been no showing here, or generally, that there has been such a pattern of abuse regarding Grand Jury subpoenas as would warrant an abrogation of the traditional presumption of validity in favor of a rule that would require a prosecutor, whenever challenged, to demonstrate relevancy to the court in the first instance.

Of course, to be distinguished from motions to quash are those situations in which a prosecutor seeks to hold a recalcitrant witness before the Grand Jury in contempt. “It has long been the rule in New York that ‘there can be no punishment for contempt for *** [refusing to testify before the Grand Jury] unless the court is shown that the evidence demanded may be relevant and proper’ ”. (Matter of Koota v Colombo, 17 NY2d 147, 150, cert den 384 US 1001, quoting Matter of Spector v Allen, 281 NY 251, 258, supra.) In these instances, reliance by the prosecutor solely on the presumption of validity will not suffice. Although not obligated to conclusively establish relevancy, the prosecutor must at least come forth with a factual showing of the “nature of the evidence demanded and its relation to the subject of the investigation” sufficient to enable the court to make an “intelligent estimate” of relevancy before a witness may be punished for contempt. (Matter of Spector v Allen, supra, at p 258.)

In this case, petitioners failed to overcome the presumption that the Grand Jury subpoenas served upon them were valid. In this regard, they offered no proof that the materials sought were unrelated to a legitimate objective of the Grand Jury’s investigation into crimes committed in the operation of the Echo Adult Home. Rather, petitioners merely speculated as to what, in their view, was the Grand Jury’s purpose in seeking the business records of the home. This allegation, without more, was insufficient to overcome the presumption that the materials sought were relevant to the Grand Jury’s investigation and, therefore, the subpoenas should not have been quashed.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion to quash the subpoenas denied.

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

Order reversed, etc.

      . Among the items petitioners were ordered to produce were: the partnership agreement; books of account and original entry; all contracts between the home and any suppliers; accountant’s workpapers; annual financial statements filed with the Department of Social Services; payroll records; personnel files; bank and loan records; all tax returns; resident listings; daily census records; resident folders and ledger sheets; personnel allowance ledger and summary book; inventory of resident property; and all accident and incident reports.

      . The delays occasioned by the refusal of recalcitrant witnesses to comply with Grand Jury subpoenas are a very real concern. For example, the Deputy Attorney-General has informed us that the 1978 subpoenas which this court upheld in Matter of Landau v Hynes (49 NY2d 128) are yet to be complied with. Another vivid example of the type of dilatory tactics engaged in by witnesses refusing to comply with Grand Jury subpoenas may be found in Matter of McGinley v Hynes (51 NY2d 1Í6, cert den 450 US 918). Unfortunately, these are not merely isolated instances of such delays.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Raymond De Jesus, Appellant.
    Argued November 18, 1981;
    decided December 17, 1981

      POINTS OF COUNSEL

      Adrian Johnson and David C. Leven for appellant.
    I. The Appellate Divisions have subject matter jurisdiction over appeals as of right from the denial of a resentencing motion made pursuant to section 60.09 of the Penal Law. II. The substantive retroactive relief provided for in section 60.09 of the Penal Law renders the provisions of CPL 440.20 applicable and thus gives the Appellate Divisions subject matter jurisdiction by leave pursuant to CPL 450.15. (Matter of Hogan v Rosenberg, 24 NY2d 207; Matter of People v Conway, 62 AD2d 1107; Matter of Palmer v Mclnerney, 35 AD2d 428; Matter of Snee v County Ct. of County of Cayuga, 31 AD2d 303.) III. Appellate Divisions historically have had subject matter jurisdiction over questions of due process arising in criminal matters. (People v Oskroba, 305 NY 113; People v Williams, 6 NY2d 193; People v Turner, 27 AD2d 141; Matter of Luckenbach, 303 NY 491; Mempa v Rhay, 389 US 128; People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376; People ex rel. Donohoe v Montanye, 35 NY2d 221; People ex rel. Calloway v Skinner, 33 NY2d 23; Gagnon v Scarpelli, 411 US 778; United States v Wade, 388 US 218.)

      Mario Merola, District Attorney (David H. Fromm and Alan D. Marrus of counsel), for respondent.
    Absent statutory authorization, the Appellate Division does not have jurisdiction to hear an appeal either as of right or by permission from an order denying a motion for resentencing brought pursuant to section 60.09 of the Penal Law, which empowers the sentencing court, at its discretion, to reduce the minimum term of imprisonment for an “A-II” felony conviction and to reduce the maximum term of imprisonment for an “A-III” felony conviction. (Matter of Santangello v People, 38 NY2d 536; Matter of State of New York v King, 36 NY2d 59; People v Gersewitz, 294 NY 163; People v Reed, 276 NY 5; People v Zerillo, 200 NY 443; People v Jeter, 39 AD2d 588; People v Walker, 37 AD2d 863; People v Fink, 35 AD2d 876, 29 NY2d 443; People v Palmer, 35 AD2d 961; People v Gambino, 35 AD2d 967; People v Briggs, 34 AD2d 596.)
   OPINION OF THE COURT

Per Curiam.

Defendant applied for resentencing pursuant to section 60.09 of the Penal Law. This section, which permits resentencing of persons convicted of class A-II and A-III drug felonies, was enacted to undo the perceived harsh sentencing consequences of the 1973 drug laws where appropriate (see Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 60.09 [Cum Supp], p 56). The statutory language of section 60.09 leaves room but for one conclusion — that the decision to grant such an application for resentencing is discretionary.

The present appeal is from an order of the Appellate Division dismissing the appeal taken by defendant from the denial of his application for resentencing. Jurisdiction to this court is predicated upon CPL 470.60 (subd 3). It is fundamental that in the absence of a statute expressly authorizing a criminal appeal, there is no right to appeal in a criminal case in this State (see Matter of State of New York v King, 36 NY2d 59, 63). Since there is no statutory provision upon which an appeal from the denial of an application for resentencing pursuant to section 60.09 of the Penal Law may be predicated, we conclude that the Appellate Division properly dismissed defendant’s appeal. It is important to note that defendant is not seeking to appeal from either a sentence or a resentence, but instead seeks to appeal from the denial of an application for resentencing in accordance with section 60.09 of the Penal Law. Accordingly, CPL 450.10 (subd. 2) and 450.30 (subds 1, 2) have no application. Additionally, the present situation does not fall within the limited grounds upon which an appeal may be taken from the denial of a motion for resentencing (CPL 450.15, subd 2; 440.20). Similarly, no appeal may be had pursuanfto CPL 450.15 (subd 1); and, of course, section 60.09 of the Penal Law does not itself provide for an appeal. Indeed, we are required to conclude that since the Legislature failed to provide for an appeal from the denial of an application for resentencing pursuant to section 60.09 of the Penal Law, no appeal was intended.

In view of the procedural posture of the present case, we neither reach nor express any view on the contention that defendant had the right to a hearing or representation by counsel on an application for resentencing under section 60.09 of the Penal Law.

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

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in Per Curiam opinion; Judge Fuchsberg concurs in result (see his dissent in People v Stephens, 55 NY2d 778, 779).

Order affirmed.

The admission of the January 25, 1978 statement was not harmless error. (People v Almestica, 42 NY2d 222; United States ex rel. Savino v Follette, 305 F Supp 277, 417 F2d 1070, sub nom. People v Savino, 22 NY2d 732; People v Wander, 47 NY2d 724; People v Jones, 47 NY2d 528; People v Crimmins, 36 NY2d 230; People v Buxton, 44 NY2d 33; People v Valerius, 31 NY2d 51; People v Havelka, 45 NY2d 636; People v Tutt, 38 NY2d 1011.) II. The failure to give an instruction prohibiting corroboration between accomplices was prejudicial error. (People v Jelke, 1 NY2d 321.) III. Repugnancy: The acquittals of counts one through eight eliminated all factual substance offered by the People to support count nine. (People v Cole, 35 NY2d 911; People v Carbonell, 40 NY2d 948; People v McEaddy, 30 NY2d 519; People v Haymes, 34 NY2d 639; People v Iannone, 45 NY2d 589; People v Fitzgerald, 45 NY2d 574; People ex rel. Guido v Calkins, 10 AD2d 510; People v Moy, 56 AD2d 853.)


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Morgan Goodman, Appellant.
    Argued November 20, 1981;
    decided December 17, 1981

      POINTS OF COUNSEL

      Raymond C. Volper and Stephen J. Pittari for appellant. I.

      Carl A. Vergari, District Attorney (Richard E. Weill, Gerald D. Reilly and Anthony J. Servino of counsel), for respondent.
    I. The admission of appellant’s January 25, 1978 statement to police was not error. (People v Leonti, 18 NY2d 384; People v Anderson, 42 NY2d 35; People v Gruttola, 43 NY2d 116; People v Yukl, 25 NY2d 585, 400 US 851; Matter of Kwok T., 43 NY2d 213; Miranda v Arizona, 384 US 436; People v Rodriguez, 38 NY2d 95; Chapman v California, 386 US 18; People v Almestica, 42 NY2d 222.) II. The court’s charge sufficiently precluded the possibility of cross corroboration between accomplices. III. The jury’s verdict was legally and logically consistent.

      (People v McEaddy, 30 NY2d 519; People v Carbonell, 40 NY2d 948; People v Mitchell, 64 AD2d 119; Dunn v United States, 284 US 390; People v Haymes, 34 NY2d 639, 419 US 1003.)
   OPINION OF THE COURT

Jones, J.

We cannot agree with the Appellate Division that, in the circumstances of this case, the admission into evidence of statements taken from defendant in violation of his constitutional rights was harmless beyond a reasonable doubt.

Late in the afternoon of January 24, 1978, the body of Elodie Henschel was found in her New Rochelle apartment by the assistant manager of the building. Investigation disclosed that she had been brutally killed and that two diamond rings which she wore were gone.

In the course of the police investigation, on January 25, 1978 three officers went to the second floor apartment over the ground floor apartment of the deceased and in which her body had been found. On arrival the police found defendant present. The apartment was occupied by the Flaherty family, and Lynn Flaherty was his girlfriend. The police were aware of defendant inasmuch as he had previously voluntarily furnished them with some general information as to having seen a “group of suspicious people” near the scene of the homicide. Although he was not then a suspect, the police brought defendant to police headquarters for questioning. On arrival, without being given his constitutional preinterrogation warnings, defendant was questioned concerning his whereabouts on January 23 and 24, 1978. He. answered that he was a student at the Educage School in White Plains and that on his way to school on January 23, at about 8:55 a.m., he had stopped off at the White Plains Mall and there had tripped over a curb, injuring his knee. He had left the school at noon and had gone with his friend Robert Shafran back to the White Plains Mall and then on to Nicky’s luncheonette on Mamaroneck Avenue, White Plains, where they had remained until 1:00 p.m. Then someone named “Bob” had driven him home where he had stayed until Lynn Flaherty had picked him up at 2:30 and driven him to her home in New Rochelle.

On January 24,1978, according to defendant, his mother had driven him to school but he had not gone in. Instead, he had taken a taxicab to the White Plains Hospital because of his injured knee. After finishing at the hospital, he had gone to the White Plains railroad station, had met Shafran there, and the two had ridden to New York City to buy marihuana for $525. Defendant added that he had known Mrs. Henschel for two and one-half years, as long as he had known Lynn, and had been inside her apartment three times.

Defendant was not arrested on the present charges until a year later on January 26, 1979. A felony complaint was filed on January 27, 1979 and defendant was indicted on January 30, 1979.

Defendant’s motion to suppress the statements that he made to the police on January 25, 1978 was denied by the suppression court which found that defendant had agreed to accompany the officers to police headquarters, that he was not in custody, and that the statements he made were voluntary.

At the trial there was extensive testimony that on January 20, 1978 defendant and a fellow student, Robert Shafran, had discussed the theft of two diamond rings from Elodie Henschel; that defendant told Shafran that he would kill her if he had to; that on January 23, 1978 Shafran made arrangements with Robert Carpenter, another student who had access to his parents’ automobile, to drive defendant and Shafran to the Henschel apartment; that when Carpenter drove them to the apartment they were also accompanied by another friend, Robert Benedict, who had come along for the ride; that at their destination defendant left, saying that he would be back in about 20 minutes; that when defendant returned his manner was jittery, he seemed upset andlooked pale and that there was a bloodlike substance on his hands and clothing; that beneath his coat he was carrying something that looked like a tire iron; that he showed Shafran two diamond rings which appeared to have blood on them; that the four then drove to defendant’s house where defendant and Shafran went in; that once in the house defendant stated, “I killed her”, started to wash the blood from his hands and clothing as well as from the iron that he had had beneath his coat, and told Shafran that he had injured his leg; that defendant later burned his clothes; that defendant and Shafran agreed on an identical alibi; that on the following day Carpenter, after first refusing, drove defendant and Shafran to the White Plains railroad station for a payment of $50; that on the way Carpenter saw the rings; that defendant and Shafran caught a train to New York where they went to the jewelry district and sold the rings to a fence for $2,000 before returning to Westchester County.

The detailed inculpatory testimony just recited came from Shafran, Carpenter and Benedict. The trial court charged that Shafran was an accomplice as a matter of law and left it to the jury under proper instructions to determine whether, as questions of fact, Carpenter and Benedict were accomplices. The jury was also instructed with respect to testimony of accomplices as to the necessity for independent corroborative evidence tending to connect defendant with the commission of the offenses charged.

The jury acquitted defendant of charges of common-law murder, felony murder, robbery, burglary and possession of a weapon, but convicted him of grand larceny in the second degree.

On appeal the Appellate Division affirmed defendant’s conviction, holding that, although defendant’s statements were improperly obtained (citing Dunaway v New York, 442 US 200; and Brown v Illinois, 422 US 590), the evidence of defendant’s guilt was overwhelming and accordingly that the erroneous admission of his statements (characterized as “entirely exculpatory”) was harmless beyond a reasonable doubt.

First, we accept the factual determination implicit in the opinion at the Appellate Division, namely that defendant, then 16 years old, did not voluntarily accompany the police to headquarters and that he was therefore in police custody at the time he made the statements in question. Mrs. Flaherty, Lynn’s mother, testified, as did Lynn (both of whom were in the Flaherty apartment when the police left with defendant), that defendant had objected to going with the police and that he had telephoned to his mother, who had spoken to him and to one of the police officers. Defendant’s mother testified that in the course of that telephone conversation she had advised defendant that he did not have to go with the police and had then told the police officer that defendant was not to go with them without an attorney. For their part the People put only one of the three police officers on the stand, and he testified in conclusory fashion only that the officers had asked defendant to accompany them and that he had agreed to go. The officer testifying had no recollection as to whether defendant had initially objected to going. He did recall that defendant had telephoned his mother but made no reference to the participation of any police officer in that conversation. The police officer said to have spoken to defendant’s mother was not called to the stand. In addition the police report made at the time merely stated that the police had gone to the Flaherty apartment and brought defendant to police headquarters; no entries were made as to what had occurred at the apartment. This record supports the implicit conclusion of the Appellate Division that defendant did not voluntarily accompany the police to headquarters.

Because, as conceded, defendant was not given his constitutional preinterrogation warnings before he was questioned at police headquarters, his constitutional rights were violated, and the erroneous admission of the evidence so obtained calls for reversal of his conviction, unless, as the Appellate Division concluded, the admission of his statements was harmless beyond a reasonable doubt.

At this point we depart in a critical aspect from our agreement with the Appellate Division. We do not disagree that the testimony of defendant’s accomplices, without reference to defendant’s own statements, provided overwhelming proof of defendant’s guilt, assuming as we do that there was the required corroborative evidence. Thus the threshold requirement for harmless error analysis is satisfied (People v Crimmins, 36 NY2d 230, 241). From that point on, however, we disagree.

There is at least a superficial appearance of incongruity in the conviction of defendant on the grand larceny count accompanied by his acquittal on all the other charges arising out of the occurrences of January 23, 1978. That appearance of incongruity suggests that the jury in convicting defendant of grand larceny may have relied on the testimony of Shafran and Carpenter that defendant went to New York City on January 24 to fence the two diamond rings — evidence which related principally to the grand larceny charge — as probative of his actions the preceding day. Additionally the jury may have taken defendant’s statement that he went to New York City on the train with Shafran as supplying the independent evidence necessary to corroborate the testimony of Shafran and Carpenter (assuming they found the latter to be an accomplice). Whether this was taken as corroboration or not, it cannot be concluded that the erroneous admission of the statement from defendant’s own lips that he had indeed gone to New York City with Shafran on the 24th was harmless beyond a reasonable doubt, i.e., that there was no reasonable possibility that the error might have contributed to defendant’s conviction (People v Crimmins, 36 NY2d 230, 237, supra).

In view of this conclusion we do not reach or consider defendant’s other assignments of error.

Accordingly, the order of the Appellate Division should be reversed, defendant’s conviction vacated, his statements suppressed, and the case remitted to Supreme Court for further proceedings with respect to the ninth count in the indictment (that of grand larceny in the second degree).

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

Order reversed, conviction vacated, defendant’s statements suppressed and case remitted to Supreme Court, Westchester County, for further proceedings with respect to the ninth count of the indictment.

      . After suppression hearings, the initial indictment, No. 79-00098-01, was dismissed on September 20, 1979, with leave to represent, and a new indictment, No. 79-00845-01, was handed up on September 28, 1979.

      . On September 28, 1979 Robert Shafran had entered a plea of guilty of manslaughter in the first degree in the death of Elodie Henschel with the understanding that if he testified truthfully against defendant, the People would take no position concerning his sentence.

      . In view of the reasoning on which we reverse and the absence of any contention that the evidence was insufficient to sustain defendant’s conviction, we have no occasion to consider whether defendant’s statements would have been sufficient as a matter of law to constitute the corroboration required by the statute if the jury found Carpenter as well as Shafran to have been an accomplice of defendant (GPL 60.22).


author: Gabrielli, J.

text:
    In the Matter of the Faculty Student Association of the State University of Oneonta, Inc., Respondent, v Philip Ross, as Industrial Commissioner, Appellant.
    Argued November 20, 1981;
    decided December 17, 1981

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (John Q. Driscoll and Shirley Adelson Siegel of counsel), for appellant.
    I. Nonstudent employees of a faculty student association are not exempted from coverage of the Minimum Wage Act and must be paid the appropriate minimum wage. (Lincoln First Bank of Rochester v Rupert, 60 AD2d 193; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205; Matter of Krall v Clauson, 272 App Div 1005, 297 NY 698; Matter of Deth v Castimore, 245 App Div 156; Erie County v Whalen, 57 AD2d 281, 44 NY2d 817; Gold-stein v City of Long Beach, 28 AD2d 558; Matter of Auburn Police Local 195, Council 82, Amer. Federation of State, County & Municipal Employees, AFL-CIO v Helsby, 91 Misc 2d 909, 62 AD2d 12.) II. Respondent is not a governmental employer; it has neither the attributes nor the obligations of government; while it may serve an educational function, it is not exempt from the Minimum Wage Act in relation to those employees who are not students. (State Univ. of N.Y. v Syracuse Univ., 285 App Div 59; People v Branham, 53 Misc 2d 346; Matter of Andresen v Rice, 277 NY 271; Palmer v Board of Educ., 276 NY 222; People ex rel. McClelland v Roberts, 148 NY 360; Varacchi v State Univ. of N. Y. at Stony Brook, 62 Misc 2d 1003; Legislative Conference of City Univ. of N. Y. v Board of Higher Educ., 38 AD2d 478, 31 NY2d 926; Matter of Corwin v Farrell, 303 NY 61; Matter of Westchester County Civ. Serv. Employees Assn. v Cimino, 58 AD2d 869, 44 NY2d 985; Albany Coll, of Pharmacy v Ross, 94 Misc 2d 389.)

      John P. MacArthur for respondent.
    I. Nonstudent employees of the Faculty Student Association are not “employees” as defined in subdivision 5 of section 651 of the Labor Law, and are thus not entitled to the statutory minimum wage. (Matter of Faculty-Student Assn. of State Univ. Coll. at Oswego v Sharkey, 35 AD2d 161, 29 NY2d 621; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205; Matter of Krall v Clauson, 272 App Div 1005, 297 NY 698; Matter of Deth v Castimore, 245 App Div 156; Matter of Auburn Police Local 195, Council 82, Amer. Federation of State, County & Municipal Employees, AFL-CIO v Helsby, 91 Misc 2d 909, 62 AD2d 12; Erie County v Whalen, 57 AD2d 281, 44 NY2d 817; Goldstein v City of Long Beach, 28 AD2d 558; State Univ. of N. Y. v Syracuse Univ., 285 App Div 59; Matter of Andresen v Rice, 277 NY 271; Palmer v Board of Educ., 276 NY 222.) II. A reasonable interpretation by an agency of a statute which it administers should not be set aside. (Matter of Howard v Wyman, 28 NY2d 434; Matter of Dwyer [Ross], 72 AD2d 853.)
   OPINION OF THE COURT

Gabrielli, J.

The question presented on this appeal is whether petitioner’s nonstudent employees are entitled to payment of the minimum wage under article 19 of the Labor Law. We hold today that these employees are not excepted from the broad definition of “employees” contained in subdivision 5 of section . 651 of the Labor Law, and thus are entitled to be paid the minimum wage.

Petitioner, the Faculty Student Association of the State University of Oneonta, Inc., is a not-for-profit corporation, organized to promote and cultivate educational and social relations among the students and faculty of the State University. In 1979, petitioner was ordered by respondent, the Industrial Commissioner, to remit to him the sum of $355.76, representing an underpayment to 21 named non-student employees, in consequence of petitioner’s failure to pay the minimum wage to those employees for various periods of time.

Petitioner appealed the order to the Industrial Board of Appeals, contending that its employees were not covered by the Minimum Wage Act (Labor Law, art 19). The board revoked the commissioner’s order, finding that petitioner, as a “mere appendage” of the State University College at Oneonta, was entitled to the same exemption from the payment of minimum wage as was the college (Labor Law, §651, subd 5, par n). The Appellate Division affirmed, holding that the board’s decision was neither unreasonable nor irrational. Because we believe that the statute does not exclude petitioner’s nonstudent personnel from the definition of “employees”, we now reverse.

The Minimum Wage Act (Labor Law, art 19), specifically applicable to nonprofitmaking institutions such as petitioner (Labor Law, §652, subd 3, par a), requires every employer to pay to each of his employees at least the amount set forth in the statute (Labor Law, § 652, subd 1). The term employee “includes any individual employed or permitted to work by an employer in any occupation” (Labor Law, § 651, subd 5), with several stated exceptions. One such exception, which petitioner seeks to have applied to its nonstudent personnel, is for individuals employed or permitted to work “by a federal, state or municipal government or political subdivision thereof” (Labor Law, § 651, subd 5, par n).

The clear language of the statutory exemption precludes its application to petitioner’s employees. Petitioner cannot be characterized as part of the State government or a political subdivision thereof, despite the fact that the college itself might properly be so considered. Its employees, then, are entitled to receive the minimum wage.

Reliance upon Matter of Beth Israel Hosp. Housing Co. (Catherwood) (35 AD2d 397) as holding to the contrary is misplaced. In that case, a claimed exemption from the Unemployment Insurance Law for a private housing corporation was upheld, based on the conclusion that the corporation was operated exclusively for hospital purposes. There, the statute afforded exemption based upon the purpose for which the institution was organized and operated. In the present case, however, the statute provides for exemption based on the nature of the employing organization. Thus, it matters not for what purpose petitioner is organized, nor that petitioner might be considered a “mere appendage” of the college; since it is not the State government or a political subdivision thereof, its employees do not come within the exception, and therefore are entitled to the minimum wage.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of the Industrial Commissioner reinstated.

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

Order reversed, etc.

       For similar reasons, our decisions dealing with real property tax exemptions of organizations similar to petitioner’s are not applicable here. (See, e.g., Matter of University Auxiliary Servs. at Albany v Smith, 54 NY2d 986, affg on opn below 78 AD2d 959; Matter of St. Joseph’s Health Center Props. v Srogi, 51 NY2d 127; Matter of Faculty-Student Assn. of State Univ. Coll, at Oswego v Sharkey, 29 NY2d 621.) The exemption statute involved in those cases speaks only in terms of the purposes for which the organization is conducted and for which the subject property is used.


author: Fuchsberg, J. Gabrielli, J.

text:
    The People of the State of New York, Appellant, v Luis De Jesus, Carlos Lopez, Maria Ortiz, Samuel Pagan, Edwin Torres (And 120 Additional Defendants), Respondents.
    Argued November 16, 1981;
    decided December 22, 1981

      POINTS OF COUNSEL

      Donald O. Chesworth, Jr., District Attorney (Kenneth R. Fisher and David L. Pogue of counsel), for appellant.
    I. The rights of all respondents were scrupulously honored on appeal and records have been painstakingly maintained to substantiate this protection of respondents’ rights. II. Since the State Alcoholic Beverage Control Law did not pre-empt the local ordinance, the Trial Judge improperly dismissed the informations. (People v Judiz, 38 NY2d 529; People v Cook, 34 NY2d 100; Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; People v Lewis, 295 NY 42; Belle v Town Bd. of Town of Onondaga, 61 AD2d 352; People v Winner’s Circle Flea Market, 102 Misc 2d 355; People v Hardy, 47 NY2d 500; People v Shelley, 103 Misc 2d 1087; People v Sentella, 83 Misc 2d 515; People v Corie, 196 Misc 1029; People v O’Neil, 280 App Div 145.) III. Section 44-14 of the Municipal Code of the City of Rochester is not unconstitutionally overbroad or vague. (People v Smith, 44 NY2d 613; People v Bergerson, 17 NY2d 398; People v Cornish, 104 Misc 2d 72; United States v Harriss, 347 US 612; People v Byron, 17 NY2d 64; Grayned v City of Rockford, 408 US 104; People v Wood, 93 Misc 2d 25; People v Pagnotta, 25 NY2d 333; People ex rel. Lichtenstein v Langan, 196 NY 260.)

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for respondents.
    I. The courts below were correct in ruling that the State of New York has pre-empted the City of Rochester from passing and enforcing an ordinance seeking to regulate establishments which sell alcoholic beverages, such as the one respondents were accused of having violated. (People v Judiz, 38 NY2d 529; Matter of Albert Simon, Inc. v Myerson, 36 NY2d 300; People v Cook, 34 NY2d 100; Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; People v Hardy, 47 NY2d 500; Matter of TJPC Rest. Corp. v State Liq. Auth., 61 AD2d 441; Tad’s Franchises v Incorporated Vil. of Pelham Manor, 42 AD2d 616, 35 NY2d 672; Grundman v Town of Brighton, 5 Misc 2d 1006; Matter of Cannon v City of Syracuse, 72 Misc 2d 1072.) II. This court is without jurisdiction to review the constitutional issues raised in respondents’ pretrial motion to dismiss, because the lower court, explicitly and at the People’s request, made no decision on the constitutional issues. (Matter of Attorney General, 155 NY 441; Curtin v Barton, 139 NY 505.) III. Assuming, arguendo, that this court chooses to consider the issue of vagueness, section 44-14 of the Municipal Code of the City of Rochester is impermissibly vague in violation of the constitutional guarantees of due process and freedom of association. (Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 236; People v Berck, 32 NY2d 567; Papachristou v City of Jacksonville, 405 US 156; People v Diaz, 4 NY2d 469; People v Pagnotta, 25 NY2d 333; Fenster v Leary, 20 NY2d 309; People v Firth, 3 NY2d 472; People v Vetri, 309 NY 401; United States v Brewer, 139 US 278; Winters v New York, 333 US 507.) IV. Assuming, arguendo, that this court chooses to consider the issue of over-breadth, section 44-14 of the Municipal Code of the City of Rochester is impermissibly overbroad in violation of defendants’ rights to due process and freedom of association. (People v Pagnotta, 25 NY2d 333; People v Bunis, 9 NY2d 1; People v Gillson, 109 NY 389; People v Estreich, 297 NY 910; People v Kuc, 272 NY 72; Matter of TJPC Rest. Corp. v State Liq. Auth., 61 AD2d 441; Healy v James, 408 US 169; Mine Workers v Illinois Bar Assn., 389 US 217.)
   OPINION OF THE COURT

Fuchsberg, J.

This appeal calls upon us to decide the extent to which the State, by enactment of the Alcoholic Beverage Control Law (L 1934, ch 478), has pre-empted the field of regulation of establishments which sell alcoholic beverages.

The issue arises in the context of criminal prosecutions based on informations charging the named defendants, 125 patrons of an unlicensed “after hours” club, with violation of section 44-14 of the Municipal Code of the City of Rochester. The ordinance states that “[n]o person shall patronize an establishment which is selling or offering for sale alcoholic beverages after 2:00 a.m. in violation of the Alcoholic Beverage Control Law”.

After thorough briefing and extensive oral argument by both sides on a motion defendants brought on under CPL 170.30, the Criminal Division of the Rochester City Court, of the view that the State had not delegated “the power to restrict and regulate the sale of alcoholic beverages”, dismissed the accusatory instruments against all the defendants. On the People’s appeal to the Monroe County Court, that tribunal affirmed. Certification by a Judge of this court, acting pursuant to CPL 460.20, now brings the matter before us for review. For the reasons which follow, we believe the courts below were correct in the decisions they reached.

Our analysis begins with the general observation that, since the fount of the police power is the sovereign State, such power can be exercised by a local governmental unit only when and to the degree it has been delegated such lawmaking authority (56 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions, § 428). As pertinent here, in the spirit of this broad principle, article IX (§2, subd [c], par [ii]) of the New York State Constitution specifies that any local law be “not inconsistent with * * * any general law” and that the legislative power of local government is limited “to the extent that the legislature shall restrict the adoption of such a local law”.

That such “inconsistency” or “restriction” is not limited to cases of express conflict between local and State laws is apparent from our decision in Robin v Incorporated Vil. of Hempstead (30 NY2d 347), a case which posed a like issue regarding the State’s statutory scheme for the regulation of medicine. In Robin, the nature of the subject matter being regulated, the lack of any perceived “real distinction” between any particular locality and other parts of the State in this regard, and the accompanying legislative declaration that the State’s Department of Health “ ‘shall have the central, comprehensive responsibility for the development and administration of the state’s policy with respect to hospital and related services’” combined to demonstrate a “design to pre-empt the subject of abortion legislation and occupy the entire field so as to prohibit additional regulation by local authorities” (id., at p 350).

On these bases, Robin struck down a village law which did not deviate in the slightest from the State statute’s definition of a “justifiable abortional act”, but merely added the precaution that such an act “be performed only in a hospital duly licensed and accredited under the New York State Department of Health, and having equipment and facilities acceptable to the State Hospital Review and Planning Council”. So holding, we emphasized that, in the presence of factors akin to those found in Robin, a local government is precluded from legislating on the same subject matter unless it has received “clear and explicit” authority to the contrary (id., at pp 350-351; Matter of Kress & Co. v Department of Health of City ofN.Y., 283 NY 55, 60 [State’s Agriculture and Markets Law’s regulation of the manufacture and sale of frozen desserts held pre-emptive]).

Measured against these criteria, the Alcoholic Beverage Control Law is surely pre-emptive. For one thing, the regulatory system it installed is both comprehensive and detailed. Of particular relevance here, it endows the State Liquor Authority with the power to grant licenses under defined circumstances and it provides for criminal sanctions against unauthorized purveyors of alcoholic beverages (Alcoholic Beverage Control Law, §§ 17, 55-99, 100, 130). Among other details, it specifies that such beverages may be sold “at retail for on-premises consumption” daily until 4 a.m. and that the actual consumption thereof may be permitted for one-half hour thereafter (Alcoholic Beverage Control Law, § 106, subd 5). It also carries its own provision against disorderliness being permitted on such premises (Alcoholic Beverage Control Law, § 106, subd 6). Moreover, the State’s statutory structure imposes its own direct controls at the local level by creating local alcoholic beverage control boards and by, for example, granting these administrative instrumentalities the power to further restrict the hours during which alcoholic beverages may be sold at retail (Alcoholic Beverage Control Law, §§ 30-43, 43, subd 3).

Nor is the policy behind the legislation left to the imagination. Section 2 of the Alcoholic Beverage Control Law declares it the goal of the State “to regulate and control the manufacture, sale and distribution within the state of alcoholic beverages for the purpose of fostering and promoting temperance *** and obedience to law”. It is not necessary to weigh these objectives qualitatively against the considerations of health with which the court dealt in Robin to appreciate that implicitly here too no “real distinction” is to be drawn between the parochial interest of a particular city or other locality on the one hand and that of the State as a whole on the other. In short, the State made a studied decision that the problems to which the statute was directed, and which the Federal Government has failed to solve (see US Const, 18th, 21st Arndts), would be more effectively met not at the local community level but by State action alone.

It should come then as no surprise that the courts (see Tad’s Franchises v Incorporated Vil. of Pelham Manor, 35 NY2d 672, affg 42 AD2d 616; Matter ofTJPC Rest. Corp. v State Liq. Auth., 61 AD2d 441), the New York State Moreland Commission on the Alcoholic Beverage Control Law (Study Paper No. 1, Relationship of the Alcoholic Beverage Control Law and the Problems of Alcohol, p 2 [1963]); New York State’s Attorney-General (1972 Opns A tty Gen 97, Feb. 22, 1972) and its Comptroller (31 Opns St Comp, 1975, p 100, No. 75-729) all have recognized that the Alcoholic Beverage Control Law is exclusive and Statewide in scope and that, thus, no local government may legislate in this field.

Nevertheless, the People urge that, even conceding its pre-emptive character, the Alcoholic Beverage Control Law is applicable only to licensed clubs whereas the local law regulates unlicensed ones. Noting that the ordinance contains no such limitation, we believe the short and yet more sweeping answer to this argument is that the State statute embraces all sellers of alcohol. Lest there be any doubt, as indicated earlier, the Alcoholic Beverage Control Law includes a provision making it a crime to sell such beverages without a license. It also contemplates the enjoining of unlicensed sales and the seizure and forfeiture of the property of establishments which evade this ban (Alcoholic Beverage Control Law, § 123). Further, while the» Alcoholic Beverage Control Law in part speaks of “licensees”, in its punitive and prohibitory provisions it is targeted in the main to “any person” (e.g., Alcoholic Beverage Control Law, § 130, subds 3, 5; see People v O’Neil, 280 App Div 145).

We also reject the People’s related attempt to erect a barrier between the State law and the local ordinance by contending that the former is aimed exclusively at the improper activities of operators of alcoholic beverage dispensing businesses and the latter at the conduct of their patrons. Such a distinction, even if it otherwise existed, became irrelevant once the State carved out this area of regulation for itself. And, this is nonetheless true because the State consciously decided that to concentrate on sellers and selling rather than drinkers and drinking would be the most “effective and appropriate” means of carrying out its self-appointed mission (New York State Moreland Commission on the Alcoholic Beverage Control Law, pp 2, 53).

Finally, all this is not to say that establishments selling alcoholic beverages are exempt from local laws of general application such as, to take several examples, one requiring smoke alarms in all business premises, or one forbidding dumping of refuse on city sidewalks, or one prohibiting disorderliness at any “place of public resort” (People v Hardy, 47 NY2d 500). But, contrary to the People’s position, the ordinance here is not of this sort. By dealing solely with the actions of patrons of establishments which sell alcoholic beverages, it impinges impermissibly on the ex-elusive Alcoholic Beverage Control Law. Further, by prohibiting persons from patronizing such establishments at times when State law would permit them to do so, the local law, in direct opposition to the pre-emptive scheme, would render illegal what is specifically allowed by State law (see, e.g., Wholesale Laundry Bd. of Trade v City of New York, 12 NY2d 998, affg 17 AD2d 327).

Consequently, the order of the County Court should be affirmed.

Gabrielli, J.

(dissenting). I agree with the majority that the State has pre-empted the field of “regulation of establishments which sell alcoholic beverages” (p 467), and that the goal of the Alcoholic Beverage Control Law is “to regulate and control the manufacture, sale and distribution within the state of alcoholic beverages for the purpose of fostering and promoting temperance in their consumption and respect for and obedience to law” (Alcoholic Beverage Control Law, §2). The Legislature has seen fit to achieve these purposes primarily through regulation of the sale of liquor, rather than by regulating the conduct of the consumers of liquor.

I disagree, however, with the majority’s conclusion that the local ordinance challenged on this appeal (City of Rochester Municipal Code, § 44-14), which penalizes only the patrons of after-hours establishments, operates in an area the Legislature has reserved to the State under the Alcoholic Beverage Control Law. This ordinance is aimed, not at liquor regulation, but at the protection of the peace, comfort and decency of the neighborhood — surely, a legitimate goal of local government (cf. People v Hardy, 47 NY2d 500). In his memorandum in support of the ordinance, the acting police chief noted the various police problems caused by the patronizing of after-hours drinking" establishments. In my view, the City of Rochester certainly has the power to enact ordinances to deal with such purely local problems, in a manner which does not interfere with the State’s power to regulate liquor. I believe that this is all the challenged ordinance sought to accomplish.

Accordingly, I would reverse and hold the ordinance to be a valid and lawful exercise of local government power.

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

Order affirmed.

      . A private club incorporated pursuant to State law as a nonprofit corporation which sells liquor only to members is not exempt from regulation under the Alcoholic Beverage Control Law (People v Hardy, 47 NY2d 500, 504).

      . The balance of this local law reads: “The terms ‘selling’ and ‘sale’ shall have the same definitions as found in Section 3 (28) of the Alcoholic Beverage Control Law”.

      . The People’s reliance on People v Hardy (47 NY2d 500, supra) for its contention that the State has not pre-empted the field of regulation of sale and consumption of alcoholic beverages is misplaced. In fact, review of the original record in that case indicates that no pre-emption issue was ever raised in this court. Accordingly, we did not discuss or decide whether the City of Rochester was pre-empted from including establishments which sell alcoholic beverages in a ban on the maintenance of a “public resort” which disturbs the peace, comfort or decency of a neighborhood. In any event, unlike the one here, the ordinance in Hardy was not directed at and did not regulate the sale or consumption of alcoholic beverages. Rather, it was a general ban on disturbances of the peace at any “place of public resort”.

      . The New York State Moreland Commission,on the Alcoholic Beverage Control Law was appointed by Governor Nelson A. Rockefeller by executive order to conduct “a thorough study and reappraisal” of the Alcoholic Beverage Control Law (see Public Papers of Governor Nelson A. Rockefeller, pp 572-574 [1963]). The nature and authority of the Moreland Commission are discussed in Seagram & Sons v Hostetter (16 NY2d 47).

      . Aside from their pre-emption point, defendants also grounded their motion to dismiss the informations on what they deemed to be the ordinance’s unconstitutional vagueness and overbreadth in contravention of due process and freedom of association guarantees. As was the case with the courts below, in view of our finding of pre-emption, we have no occasion to consider or pass on either question.


author: Meyer, J. Jones, J.

text:
    The People of the State of New York, Respondent, v Leroy Middleton, Appellant.
    Argued October 23, 1981;
    decided December 22, 1981

      POINTS OF COUNSEL

      Brent K. Olsson and William E. Hellerstein for appellant.
    Police questioning of appellant after they had heard him instruct his wife to call his attorney in connection with his impending arrest for unlicensed driving violated his State and Federal constitutional rights to counsel and required suppression of his statements concerning the location of cocaine in his car. Because the warrantless search of the car, which produced the cocaine, was based solely on those statements, the search was violative of State and Federal constitutional guarantees against unreasonable searches and seizures and the cocaine seized from the car should also have been suppressed. (People v Arthur, 22 NY2d 325; People v Cunningham, 49 NY2d 203; People v Buxton, 44 NY2d 33; Michigan v Mosley, 423 US 96; People v Maerling, 46 NY2d 289; People v Rogers, 48 NY2d 167; Silverthorne Lbr. Co. v United States, 251 US 385; Chambers v Maroney, 399 US 42; People v Walls, 74 AD2d 833; People v Cesare, 55 AD2d 959.)

      John J. Santucci, District Attorney (Barry A. Schwartz and Deborah Carlin Stevens of counsel), for respondent.
    The commission of the independent crime of bribery justified the continued investigation by the police which led to the recovery of the cocaine. (People v Cunningham, 49 NY2d 203; People v Rogers, 48 NY2d 167; People v Kulis, 18 NY2d 318; Walder v United States, 347 US 62; People v Harris, 25 NY2d 175, affd sub nom. Harris v New York, 401 US 222; United States v Troop, 235 F2d 123; United States v Perdiz, 256 F Supp 805; People v Davis, 59 AD2d 722; People v Puglisi, 51 AD2d 695; People v Munger, 37 AD2d 950.)
   OPINION OF THE COURT

Meyer, J.

A defendant who requests counsel after his arrest but then without provocation seeks to buy his way out by offering a bribe to the arresting officer may be questioned by the officer as to anything legitimately related to the bribe offer that would be asked by an officer intending to accept such an offer. Admission in evidence of such a bribe offer, of any repetition of it, of any statements made in answer to such inquiries, or of any contraband of which the officer learns through the answers to such inquiries violates neither defendant’s constitutional right to counsel nor his right to be free of unreasonable search and seizure. The order of the Appellate Division affirming the Trial Judge’s denial of suppression and defendant’s conviction after plea of guilty should, therefore, be affirmed.

While on motor patrol together Patrolman James O’Con-nor and Sergeant John Kelly observed that defendant was driving a vehicle which had no front license plate attached where it normally would be although it bore a New York plate on the rear. They directed defendant to pull over and asked him for his license and registration. Defendant produced the registration but informed the officers that his license had been taken away in South Carolina. Upon making a computer check, the officers discovered that defendant had six suspensions on his license.

While the computer check was in process, defendant asked and received permission to go to a nearby candy store to purchase cigarettes. Upon defendant’s return the officers advised him what the computer check had revealed and placed him under arrest for driving with a suspended license. Defendant was given Miranda warnings to which he made no response. He was then asked for the keys to his car so that it could be parked while defendant was booked. Defendant responded that he had lost the keys in the snow on the way to the candy store and Sergeant Kelly went to look for them. At this point defendant’s wife drove up and Patrolman O’Connor heard appellant instruct her to call his attorney and tell him defendant would be at the 106th Precinct.

During Kelly’s absence defendant offered to give O’Con-nor $5,000 plus another $5,000 after he made a telephone call. O’Connor told defendant to forget it and, after handcuffing him, placed him in the police car. Sergeant Kelly then returned with the keys, which had been hidden in the store, and there followed a conversation between the two officers and defendant in which, responding to Kelly’s inquiry as to why he was offering so much money, defendant said that he owed three years’ jail time. Defendant was then asked by O’Connor why he did not want the officers to have the keys to the car and he responded that he had about $100 worth of coke in the car. O’Connor next asked where the coke was and was told it was in the front seat. Checking and failing to find it, O’Connor inquired again and was told it was in the back seat. Unable to find it in the back seat, O’Connor inquired again and was then told that it was on the left hand side of the trunk, in a paper bag. Using the keys he had retrieved from the store, Sergeant Kelly then opened the trunk and found a paper bag containing three clear plastic bags filled with a white powder, later determined to be cocaine. Kelly closed the trunk, leaving the paper bag and its contents inside, and told O’Connor he would call Internal Affairs and meet O’Connor and defendant at the station house.

At the station house Kelly was fitted with a hidden recorder. After he rejoined O’Connor and defendant, further conversation concerning the proposed bribe occurred, after which defendant handed Kelly a sum of money and was, thereupon, arrested for bribery and possession of cocaine. The cocaine was then removed from the trunk of the car. Indicted for criminal possession, bribery and violation of the Vehicle and Traffic Law, defendant moved to suppress both his statements and the physical evidence.

After a hearing at which the police officers testified, the hearing Judge denied both aspects of the motion, concluding that the statements were part of the bribe offer and were voluntarily made despite defendant’s being advised of his rights and that defendant’s admission that he possessed cocaine entitled (indeed, required) the officers to arrest him and search the automobile for the fruits of the admitted crime. No mention was made in defendant’s moving papers or in the hearing Judge’s decision of defendant’s direction to his wife, overheard by Officer O’Connor, to call his attorney. Following denial of his motion, defendant pleaded guilty to the possession count in satisfaction of the indictment. Sentenced to one year to life, defendant appealed the suppression ruling pursuant to CPL 710.70 (subd 2). The Appellate Division having affirmed, without opinion, defendant appeals to us by permission of a Judge of this court. Before us he argues for the first time, as People v Ermo (47 NY2d 863, 865) and predecessor cases permit, the violation of his right to counsel. We affirm.

Defendant does not argue that his statements prior to his arrest on the Vehicle and Traffic Law charges are suppressible. Further, he concedes in his brief that the offer of $10,000 to the officers not to pursue that arrest was admissible, because it was spontaneous within the meaning of that word as defined in People v Lynes (49 NY2d 286, 294) and People v Maerling (46 NY2d 289, 302-303) and because it furnished probable cause for defendant’s arrest for bribery. He argues, rather, that though the police were not prevented from immediately investigating the bribery they could not question defendant, absent the attorney whose presence he had to their knowledge requested, about the then pending bribe offer and could not search the trunk for the cocaine of which they had learned through such questioning because they did not have legally obtained probable cause to believe the trunk contained contraband.

The issue is thus reduced to the extent to which defendant’s prior request for an attorney limited the investigation that would normally be made by a police officer to whom a bribe offer has been made. We agree with defendant’s attorney that the bribe offer is admissible notwithstanding the prior request for an attorney, but we do not ground that conclusion solely upon the fact that the time and manner of the offer brought it within the exception to the right to counsel rule for statements spontaneously made (see People v Stoesser, 53 NY2d 648, 650). Of at least equal importance is the fact that the statement itself constituted an independent crime, for otherwise the constitutional protection is being used not to protect an accused by providing him with legal assistance with respect to a past crime but to give him immunity for a new crime committed in the presence of the officers. That the right to counsel is not to be carried that far was the holding of the Eighth Circuit in Vinyard v United States (335 F2d 176, 184, cert den 379 US 930). The court reasoned that: “The receipt into evidence of the testimony of [Revenue Agents] Overturf and Wallace as to what occurred was entirely proper, even though she [defendant] was represented at the time by an attorney in connection with the first offense, that for which she had been arrested. To hold otherwise is to say that a person arrested for one offense (refilling of bottles in violation of 26 U.S.C.A. § 5301(c)) may not be held accountable for the commission of a subsequent and different offense (bribery, in violation of 18 U.S.C.A § 201) unless his counsel, employed in the refilling of bottles offense, is present and presumably approving of the acts constituting the attempted bribery offense. It would be holding that the employment of counsel in the first offense gave appellant an insulated status against the commission of subsequent crime or immunized him from responsibility for his subsequent criminal acts. * * * Like reasoning applies to the acceptance into evidence of the recordings of appellant’s statements which repeated or reaffirmed her prior attempted bribery, this time with seeming success in the passage of two envelopes, each containing $250 in cash.”

To be borne in mind in deciding how far conversation between a person accused and a police officer to whom he offers a bribe is proscribed by the constitutional right to counsel are that the conversation was initiated by defendant (cf. People v Lynes, 49 NY2d 286, 294, supra), that the bribe offer furnished a valid independent basis for interrogation (cf. People v Stewart, 41 NY2d 65, 70), that the risk defendant took in offering the bribe included the possibility that the offer would be tape-recorded (Lopez v United States, 373 US 427, 439), and that in view of the credibility problems otherwise presented it is a usual investigation practice to obtain such a recording (id.; Vinyard v United States, supra; People v Puglisi, 51 AD2d 695).

Defendant suggests that Officers Kelly and O’Connor were obligated to arrest him for the bribe offer as soon as it was made and not to inquire further. However, in Hoffa v United States (385 US 293, 310), a Sixth Amendment-based argument was denominated by the Supreme Court a “novel and paradoxical constitutional doctrine” and rejected in the following language: “There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.” Though the Hoffa case can be distinguished, we think its reasoning is properly applicable to the present case. The purposes of the constitutional provision are to recognize an accused person’s view “that without legal advice he is not competent to deal with those in whose custody he is” (People v Kazmarick, 52 NY2d 322, 327; People v Cunningham, 49 NY2d 203, 209), to minimize the disadvantage of a person accused by mitigating the coercive influence of the State (People v Kazmarick, loe. cit.; People v Rogers, 48 NY2d 167, 173) and to further fundamental fairness (People v Kazmarick, loc. cit.). But a defendant who asks for counsel in one breath and then with the next, without awaiting the arrival of counsel and without provocation, makes a bribe offer, has shown that he views his need for an attorney as limited to the legal proceedings that will ensue and considers himself quite competent to seek an illegal end to his predicament. Nor by hypothesis, the bribe offer being wholly spontaneous, is there any coercive influence of the State at work.

To the contrary, the questions asked and answers given in the instant case were well within the realm of inquiry that would be made by a rogue policeman considering whether to accept the bribe offer made. True, some went to motive, which is not an element that must be proven to obtain conviction of a crime. But the offer of $10,000 to forget about a Vehicle and Traffic Law violation was so bizarre and the keys claimed to have been lost in the snow but which were found in the candy store such a charade, that a bribe offeree, considering whether to involve himself and whether the amount offered was worth the risk involved, would quite naturally ask the questions that O’Connor and Kelly asked. Moreover, defendant’s answers can hardly be deemed coerced. Though he first sought to mislead the officers by referring to time he owed, which apparently was not the fact, he readily revealed, when asked why he “lost” the keys, the presence of cocaine in the car. That it took three inquiries to ascertain the exact location of the cocaine does not establish the contrary, for he may well simply have feared that, if the officers were indeed rogues, they might hijack the drugs. Moreover, on arrival at the precinct station he continued to negotiate in terms of completing the bribe, until finally arrested on both bribery and drug charges.

This court has “led the way” in protecting the right of an accused to the assistance of counsel (Kamisar, Police Interrogations and Confessions, p 220), as is evident from even a cursory review of our decisions (see People v Kazmarick, 52 NY2d 322, 326-327, supra, and cases there referred to). There is, however, no unfairness to a defendant who would subvert the criminal justice system with his offer of a bribe in our recognizing, as a further exception to the rule that one who has requested counsel can only waive his right to counsel in the presence of counsel (People v Hobson, 39 NY2d 479, 484), the making of a spontaneous and unprovoked bribe offer, and to hold that any statement made in response to inquiry legitimately related to the bribe offer is outside the protection of the right to counsel rule. Not to do so is unrealistically to limit investigatory procedures relating to bribe offers (see Kazmarick, supra, at p 328).

It follows that all statements made by defendant during the bribe negotiations are admissible. Moreover, defendant’s admission that there was cocaine in the car furnished probable cause for ultimate seizure of the cocaine. That the officers looked at the cocaine in the trunk without a warrant is, if improper, immaterial. They had been told of its existence by defendant, and the record is clear that it was not removed from the trunk until after defendant was arrested on the bribery and drug charges. Defendant himself having given the officers in his attempt to bribe them information as to the location of the cocaine, had no reasonable expectation of privacy concerning it that required obtention of a warrant before seizing it (see United States v Martino, 664 F2d 860, 870; United States u Candella, 469 F2d 173, 175).

Because neither the statements nor the cocaine were suppressible, the order of the Appellate Division affirming Criminal Term’s denial of suppression was correct and should be affirmed.

Jones, J.

(dissenting). I cannot agree with the breadth of the legal proposition announced by the majority. I do agree that the police were under no constraint in the conduct of their interrogation of defendant concerning the crime of bribery in consequence of his having called for his attorney, and that any statement made by him to them in execution of the crime of bribery would be admissible in any prosecution against him for the commission of that crime. That was a new and distinct criminal offense, and the circumstance that, to the knowledge of the police, defendant at the time was represented by an attorney would provide no barrier to the introduction of direct proof of commission of the new crime (cf. Vinyard v United States, 335 F2d 176, 184, cert den 379 US 930). This consequence depends, however, not on the application of any spontaneous utterance exception to rules of suppression for violation of constitutional rights, but on the basic and self-evident principle that a person is not insulated from prosecution for criminal offenses committed by him merely because he happens to have engaged an attorney.

I cannot agree, however, that because defendant committed a substantively unrelated and independent crime he thereby forfeited his constitutional right to counsel as to the crime of which he has been convicted in the present action. With respect to the charge for criminal possession of a controlled substance, to which he pleaded guilty following the denial of his motion to suppress the cocaine seized from the trunk of his automobile, the record discloses a now familiar situation in which, in other cases, we uniformly uphold defendant’s claims of constitutional impropriety.

It is not disputed that by his instruction to his wife to call his attorney defendant invoked his constitutional right to counsel (People v Buxton, 44 NY2d 33). That right, having attached, could not be waived other than in the presence of counsel. Accordingly, after arresting defendant the police were precluded from questioning him about the contents of his car in the absence of his attorney. Inasmuch as the police failed to respect defendant’s right to have counsel present while he was being questioned, his statements regarding the location of cocaine in the trunk of his car should have been suppressed with respect to the drug charge. It should follow that the warrantless search of his automobile, based solely on the statements obtained unconstitutionally from him, was also unconstitutional and the cocaine seized therefrom should have been suppressed.

I find it offensive, and quite unjustified by any authority of which I am aware (none is cited by the People or by the majority in our court) to deprive a defendant of his constitutional rights, otherwise unhesitatingly recognized, because during the course of his prosecution he commits another, independent crime for which he unquestionably may be prosecuted; the commission of one crime should not somehow absolve the police of their constitutional obligations with respect to another crime.

Accordingly, I would reverse defendant’s conviction and grant his motion to suppress the cocaine seized from the trunk of his car.

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

Order affirmed.

      . Vinyard is the only case found dealing with the right to counsel. Supportive of its conclusion, though not directly in point, are cases holding that the Fourth Amendment taint of a prior illegal arrest does not protect an accused who offers the arresting officer a bribe from prosecution for bribery (People v Davis, 59 AD2d 722; People v Puglisi, 51 AD2d 695; People v Munger, 37 AD2d 950, app dsmd 33 NY2d 576; People v Raymo, 32 Misc 2d 534; United States v Troop, 235 F2d 123; United States v Perdiz, 256 F Supp 805; People v Guillory, 178 Cal App 2d 854; see United States v Winter, 348 F2d 204).

      . The claim there was based not on the fact that counsel had been requested but that had an arrest been made promptly after there was probable cause to do so, much of the information obtained thereafter would have been suppressible on right to counsel grounds.

      . Roughly analogous is the doctrine that while the privilege against self incrimination precludes use of statements made before a Grand Jury with respect to the substantive crime, the constitutional privilege does not bar use of such statements to prove further criminal activity, to wit, commission thereby of the crime of perjury (People v Stoney, 36 NY2d 725; People v Tomasello, 21 NY2d 143).

      . However defendant’s initial offer to bribe Patrolman O’Connor might be characterized, his answers to their questions after he had been handcuffed cannot be held to have been spontaneous.