author: Chief Judge Wachtler. Jasen, J.

text:
    George L. Clark, Jr., Individually and as Chairman of the New York Republican State Committee, Appellant-Respondent, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents-Appellants.
    Argued September 9, 1985;
    decided October 22, 1985
    POINTS OF COUNSEL

      Thomas J. Spargo for appellant-respondent.
    I. It is not within the power and authority of the Governor to create a Voter Registration Task Force and to implement a voter registration program by way of executive order. (Rapp v Carey, 44 NY2d 157.) II. The function of a voter registration program must be carried out by a Task Force which is "bipartisan”.

      Robert Abrams, Attorney-General (Robert Hermann, John Q. Driscoll and Christopher K. Hall of counsel), for respondents-oppellants.
    I. Executive Order No. 43 does not violate the constitutional requirement of bipartisan control of Boards of Election. (Holland v Bankson, 178 Misc 810, 264 App Div 896, 290 NY 267; Rapp v Carey, 44 NY2d 157; Matter of Adams v Flanagan, 201 App Div 735, 234 NY 540; Matter of Celler v Larkin, 71 Misc 2d 17.) II. The program established by Executive Order No. 43 implements clear legislative policy and is within the authority of the Governor. (Matter of Di Brizzi [Proskauer], 303 NY 206; Gautier v Ditmar, 204 NY 20; Matter of New York State Employees Council 50 v Rockefeller, 55 Misc 2d 250; Socialist Workers Party v Rockefeller, 314 F Supp 984; Rapp v Carey, 44 NY2d 157; Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Broidrick v Lindsay, 39 NY2d 641; United Jewish Orgs. v Carey, 430 US 144.) III. The court below erred in prohibiting use of locked receptacles for completed application forms at State offices. (Swann v Board of Educ., 402 US 1.)

      Arthur Eisenberg, Julius Chambers, Joel Berger and Lani Guinier for The League of Women Voters of New York State and others, amici curiae.

    I. Executive Order No. 43 does not violate the bipartisan registration requirements of NY Constitution, article II, § 8. (Matter of Celler v Larkin, 71 Misc 2d 17; Matter of Adams v Flanagan, 201 App Div 735, 234 NY 540.) II. Executive Order No. 43 does not contravene the voter registration plan enacted by the New York Legislature; indeed, the executive order furthers both State and Federal legislative policy. (Matter of Siwek v Mahoney, 39 NY2d 159; Red Lion Broadcasting Co. v Federal Communication Commn., 395 US 367; United States v Mine Workers, 330 US 258; Fogarty v United States, 340 US 8; Rapp v Carey, 44 NY2d 157; Under 21 v City of New York, 65 NY2d 344.) III. The court below erred in directing the Voter Registration Task Force to remove the locked receptacles that had been placed at the State agencies for the collection of the registration forms. (Parsons v United States, 670 F2d 164; United States v Ahrens, 530 F2d 781; Locklear v Hultine, 528 F Supp 982; Moore v Ross, 502 F Supp 543.)
   OPINION OF THE COURT

Chief Judge Wachtler.

At issue in these cross appeals is the power of the Executive to implement a plan to facilitate the registration of potential voters by making registration forms and assistance available at State agencies.

I.

On July 9,1984, Governor Cuomo issued Executive Order No. 43 (9 NYCRR 4.43), which established a program of voter registration and a "Voter Registration Task Force”. The registration program is to be implemented through State agencies having contact with the public, which are to make mail registration forms available and provide, through their staffs, assistance in filling out the forms. Staff assistants are mandated to observe a position of "strict neutrality with respect to a person’s party enrollment”. The Voter Registration Task Force, composed of the heads of various State agencies, including the Executive Director of the State Board of Elections, or their representatives, is directed to meet quarterly and is charged, in essence, with overseeing the implementation of the programs.

Shortly after the executive order was issued, plaintiff commenced this action for declaratory and injunctive relief. Special Term granted plaintiff’s motion for a preliminary injunction (123 Misc 2d 885), but the Appellate Division reversed, on the law, denied the motion (103 AD2d 244) and granted leave to appeal to our court (104 AD2d 673). We affirmed (63 NY2d 96).

A trial on the merits followed, at which the sole witness was Henrik N. Dullea, Director of State Operations and Chairman of the Voter Registration Task Force. Dullea testified that the registration program had been implemented in "an array of agencies which have a fairly high volume of pedestrian traffic”, in which voter registration forms had been made available and signs had been posted reminding the public that registration was a precondition of voting and describing the registration form. Dullea characterized these efforts as "a passive program of making that material available”.

Persons requesting forms may fill them out at the agency and leave them in a receptacle for transmittal to or pickup by the local Board of Elections, or they may mail the forms directly to the Board. The Boards are given the option of providing locks for the receptacles; if they do not, the agency will supply a lock for each receptacle.

Dullea testified further that options for collecting the completed forms included pickup by a Board representative at each agency or a central location in the county, or delivery to the Board by the agency. However, he also read from a memorandum he had sent to the agency coordinators which provided: "There should be no need for you or any other State employee to handle completed registration forms. Rather, each citizen should place the completed form in the receptacle, which should be placed in a secure location each evening. You should place a padlock on the receptacle, removing it only to give the forms to a representative of your County Board of Elections. In fact, New York State’s Board of Elections will assist you in making arrangements with your county board for picking up the registration forms.”

The memorandum also contained the following warning: "very important: The Governor specified in his Executive Order that employees involved in this project must 'maintain a position of strict neutrality with respect to a person’s party enrollment.’ It is crucial that you explain to all participating employees that they may not in any way try to influence registrants’ party enrollment.”

Following the testimony, Trial Term declared Executive Order No. 43 "unlawful, unconstitutional and void” and enjoined defendants from implementing it (125 Misc 2d 968). Defendants appealed, and after it vacated their stay pursuant to CPLR 5519 (c) (105 AD2d 451), the Appellate Division reversed, on the law, declared Executive Order No. 43 constitutional and enjoined defendants and the Voter Registration Task Force from providing receptacles for completed voter registration forms at those locations where the forms are made available (104 AD2d 188).

Plaintiff, the then Republican State Chairman, predicated this appeal on a constitutional question (CPLR 5601 [b] [1]), contending, in essence, that Executive Order No. 43 violates the doctrine of separation of powers and article II, § 8 of our Constitution. Defendants cross-appealed from so much of the Appellate Division’s order as enjoined them from providing receptacles for completed voter registration forms at those agency locations where the forms are made available, contending the injunction exceeded the scope of the court’s equitable powers. Finding none of these arguments persuasive, we affirm.

II.

Plaintiffs first contention is that, in essence, Executive Order No. 43 violates the constitutional principle of separation of powers because it infringes upon the mandate that the Legislature “provide by law for a system or systems of registration” (NY Const, art II, § 6). The doctrine of separation of powers is implied by the separate grants of power to each of the coordinate branches of government. Article III, § 1 of our Constitution provides: "The legislative power of this state shall be vested in the senate and assembly”, and article IV, § 1 provides in pertinent part that "[t]he executive power shall be vested in the governor”.

But we have recognized that some overlap between the three separate branches does not violate the constitutional principle of separation of powers (e.g., Matter of County of Oneida v Berle, 49 NY2d 515, 523; Matter of Richardson, 247 NY 401, 413). As we noted in People v Tremaine (252 NY 27, 39), “common sense and the necessities of government do not require or permit a captious, doctrinaire and inelastic classification of governmental functions.” In Matter of Rosenthal v McGoldrick (280 NY 11, 14), for example, we sustained legislation conferring upon judicial officers the plenary power to fix salaries of clerks and other employees, noting that "[t]he rule that the judiciary may not be charged with administrative functions does not apply when such functions are 'reasonably incidental to the performance of judicial duties’ ”.

Plaintiffs reliance on Rapp v Carey (44 NY2d 157) is misplaced. There, we recognized that "in this State the executive has the power to enforce legislation and is accorded great flexibility in determining the methods of enforcement” (id., at p 163; see also, Under 21 v City of New York, 65 NY2d 344, 356). It is only when the Executive acts inconsistently with the Legislature, or usurps its prerogatives, that the doctrine of separation is violated. Thus, in Rapp v Carey (supra), we held that an executive order requiring financial disclosure by certain State employees and prohibiting certain political and outside business activity did not implement existing legislation regulating conflicts of interest, but reached far beyond such legislation and thus assumed the power of the Legislature to set State policy.

But the case before us is quite different. The Legislature has declared its policy that "the state board of elections shall have the power and duty * * * to encourage the broadest possible voter participation in elections” (Election Law § 3-102 [13]). Registration application forms, it has further declared, are to be given by a County Board of Elections to "any person” requesting them; each County Board "shall also cause such application forms to be as widely and freely distributed as possible” (Election Law § 5-210 [2]). That the program was intended to further this policy was established at trial by the uncontradicted testimony of Dullea. Unlike the order in Rapp v Carey (supra, at p 165), it can thus hardly be said that Executive Order No. 43 represents a "nullification” of legislative action. The dissent suggests that the foregoing sections must be read literally to limit the effectuation of these policies by only the State and County Boards of Election, without any assistance, no matter how consistent with the articulated policy, whether such Boards desire such assistance or not. Yet, inexplicably, the dissent concludes that this very language, which it would apply so literally against the State, would not apply to private actors.

Moreover, in this case there was cooperation by both the State and local Boards of Election with the program implemented by Executive Order No. 43. Indeed, the State Board of Elections is itself an executive agency (Election Law § 3-100 [1]). Most important, as discussed more fully below, the program is not registering anyone to vote in contravention of any statute or constitutional delegation of authority, but is merely facilitating the distribution and filling out of forms, which is only the first step toward registration.

Our decision in no way conflicts with Matter of Prospect v Cohalan (65 NY2d 867, motion for clarification and cross motion for rearg denied 65 NY2d 1026). There we held that a county executive could not formulate disaster preparedness policy, which function was specifically delegated by statute to the legislative branch of the county government. Here, in contrast, the Legislature has articulated the policy, and the State and local Boards of Election are merely charged with its implementation. The Executive is not usurping a policy function of the Legislature at all in this case, but is merely implementing its policy in a manner which in no way treads on its prerogatives.

Finally, that proposed legislation similar to Executive Order No. 43 was not passed does not indicate legislative disapproval of the programs contemplated by the order. Legislative inaction, because of its inherent ambiguity, "affords the most dubious foundation for drawing positive inferences” (United States v Price, 361 US 304, 310-311; see also, Brooklyn Union Gas Co. v State Human Rights Appeal Bd., 41 NY2d 84, 90, rearg denied 42 NY2d 824, remittitur amended 44 NY2d 789 [distinguishing situation where inactivity can imply approval of long-standing construction of a statute, not present here]).

III.

Plaintiff’s contention that Executive Order No. 43 violates article II, § 8 of our Constitution is also unavailing. That section by its terms applies only to "laws creating, regulating or affecting boards or officers charged with the duty of registering voters, or of distributing ballots to voters, or of receiving, recording or counting votes at elections,” and requires bipartisan representation on such bodies. Although the program and Task Force created by Executive Order No. 43 clearly do not afford such bipartisan representation, that requirement is inapplicable because Executive Order No. 43 is not a law and because the personnel who implement it do not register voters, distribute ballots or receive, record or count votes at elections.

A law may be enacted only by a legislative body, which the executive clearly is not (see, Schumer v Caplin, 241 NY 346, 351-352). Rather, his Executive Order No. 43 is an entirely proper order "seemingly cast in a rule-making mold, but * * * repetitive of existing legislation as to standards and implementing] the enforcement of those standards by voluntary arrangements, directions for co-ordination, or the interposition of mediatory bodies” (Rapp v Carey, 44 NY2d, at p 163, supra).

No claim is made that the implementation of Executive Order No. 43 distributes ballots to voters or receives, records or counts votes at elections. However, plaintiff suggests that the program does register voters, and that Executive Order No. 43 thus violates the constitutional mandate in that respect. We hold, at least when implemented in conjunction with the injunction against providing locked receptacles, and thus constituting only a means of distributing and assisting in the completion of voter registration forms, that it does not.

It matters not whether registration is complete at the time the application form, if timely mailed, is received by the local Board of Elections, as plaintiff claims (Election Law § 5-210 [3]), or, as defendants contend, after the application has been reviewed by a bipartisan team of Board employees (Election Law § 5-210 [6] [a]). The mere distribution of registration forms and rendition of assistance in completing them does not approach either critical event and thus does not implicate the constitutional requirement of bipartisan representation. Although a "but for” analysis arguably would require a contrary result, because the critical stage could not be reached unless someone supplied the forms and helped registrants fill them out where necessary, such an interpretation would, as a practical matter, preclude all private voter registration drives and thus be completely contrary to the expressed legislative policy of encouraging as widespread voter registration as possible.

IV.

We sustain the Appellate Division’s affirmance of the injunction against the provision of receptacles for completed registration forms in the offices that distribute the forms. The presence of such forms in boxes which in some cases are in the control of agency employees too closely approaches the critical stage of delivery to the local Board of Elections, thus, rendering the agency, for all intents and purposes, a "branch office” of the Board. While it appears that there is a preference in the program for local Boards to have sole custody of the keys to the boxes and for their personnel to retrieve the boxes and empty them at Board offices, it was conceded that this preference was often not followed.

The potential for mischief when the key to the box, and the transportation of its contents to Board offices, are the responsibility of agency personnel, is obvious. Less obvious, but in our view also infused with both the perception of and potential for abuse, is the presence of the locked receptacles even in other circumstances. We believe that any impact on the program of requiring registrants to mail in their completed forms is outweighed by the elimination of the potential for abuse when such forms are in the custody of the Postal Service. Accordingly, we conclude that so much of the injunction as applied to the use of locked receptacles was, under the circumstances, properly issued.

Jasen, J.

(dissenting in part). I would reverse the order of the Appellate Division and hold the challenged Executive Order unconstitutional. The issue is not whether it is desirable to encourage the broadest possible voter participation in elections, but, rather, whether Executive Order No. 43 constitutes a patent infringement upon the legislative function. Because I believe that the establishment of a "State Program for Voter Registration” by Executive Order conflicts with the existing statutory scheme governing voter registration, and establishes a program which has been specifically considered and rejected by the Legislature, I respectfully dissent.

The State Constitution provides for a distribution of powers among the three branches of government. (See, NY Const, art III, § 1; art IV, § 1; art VI.) Article II, § 5 of the Constitution provides that laws should be made for the registration of voters. This constitutional directive, originally incorporated in the Constitution at the Convention of 1821, "imposed a duty upon the legislature, which was vested with entire control of the subject”. (3 Lincoln’s Constitutional History of New York, at 91 [emphasis suppled]; Matter of Ahern v Elder, 195 NY 493, 497.) As a matter of law, as well as history, it cannot be disputed that the Legislature has constitutionally been vested with plenary power to establish policy affecting voter registration.

The constitutionality of an Executive Order, which operates with full force of law, is wholly contingent upon whether there exists a specifically conferred legislative authorization for the gubernatorial act. (Under 21 v City of New York, 65 NY2d 344, 359; Subcontractors Trade Assn. v Koch, 62 NY2d 422, 429; Rapp v Carey, 44 NY2d 157, 162.) The majority fails to cite any legislative source of authority specifically conferring upon the Governor the power to promulgate Executive Order No. 43.

Obviously, there is no express or implied legislative authorization for Executive Order No. 43. To overcome this lack of a specific legislative authorization, the majority seeks to characterize and justify the Executive Order as an implementation of legislative policy, saying that: "The Legislature has declared its policy that 'the state board of elections shall have the power and duty * * * to encourage the broadest possible voter participation in elections’ (Election Law § 3-102 [13]). Registration application forms, it has further declared, are to be given by a County Board of Elections to 'any person’ requesting them; each County Board 'shall also cause such application forms to be as widely and freely distributed as possible’ (Election Law § 5-210 [2]).” Without explanation, and in contravention of recent precedent (Matter of Prospect v Cohalan, 65 NY2d 867), the majority finds in said statutory language a conferral of power upon the Executive Branch. This view is in error.

Election Law § 3-102 (13) and § 5-210 (2) represent a legislative policy to designate the bipartisan Boards of Election the exclusive official instruments for distributing registration materials. A legislative judgment has been rendered that the official distribution of registration materials .be conducted in a manner established by, and under the control of, Boards of Election. Indeed, the majority recognizes, as it must, that State and local Boards of Election are charged with the implementation of the policy of broad distribution of voter registration materials. (Majority opn, at p 190.) In my opinion, Executive Order No. 43 amends the Election Law by creating a Task Force to administer a State program of distribution of registration materials which, as the majority concedes, "clearly do[es] not afford * * * bipartisan representation” and is effectuated by State employees not under the control of the Boards of Election. A determination that the Governor lacks the power to unilaterally establish State policy affecting voter registration in no way hinders private voter registration drives which have flourished under the existing statutory scheme. The Election Law does, however, limit State participation in voter registration programs to those conceived and executed by bipartisan Boards of Election. The incidental participation of Boards of Election in the State Program for Voter Registration does not eliminate the inherent conflict between Executive Order No. 43 and the Election Law.

Nor may it be said that the Legislature has implicitly authorized Executive Order No. 43. The program established by the Governor has repeatedly been considered and rejected by the Legislature. Legislation was introduced to require each County Board of Elections to distribute registration application forms to the public through distribution to Federal, State and local government buildings, banks, post offices and various other facilities. This legislation, which recognizes the proper role of the County Boards of Election in the distribution of registration materials, has not received passage. (Cf. Under 21 v City of New York, 65 NY2d 344, 356, supra.) Thus, this is not a case where legislative inertia or acquiescence has opened the door to this Executive Branch initiative. (See, Youngstown Co. v Sawyer, 343 US 579.)

The view expressed by the majority today is wholly incongruous with the court’s recent decision in Matter of Prospect v Cohalan (65 NY2d 867, supra). In that case, the court was presented with the question whether the County Executive was authorized to establish, by Executive Order, a disaster preparedness plan, to be utilized in the event of a disaster at a nuclear power plant located within his jurisdiction. The County Executive contended that authority to establish such a plan was derived from Executive Law § 20 (1) (b) which articulated a policy of involving local chief executives in the development and implementation of disaster preparedness programs. A majority of this court disagreed and held that Executive Law § 23 (1), which provides that each "county” is authorized to prepare disaster preparedness plans, represents a conferral of authority upon the legislative and not the Executive Branch. Thus, a divided court in Cohalan held that where the State Legislature has specifically conferred authority to establish a particular program upon the "county”, and the County Executive attempts to develop and implement such a program by Executive Order, said order is deemed "a clear usurpation of the legislative function”. (65 NY2d, at p 870.) The view expressed by the majority today, that an Executive may unilaterally create a "Task Force” to develop and implement a plan for voter registration despite the fact that the Legislature has specifically conferred upon bipartisan Boards of Election the authority to establish and implement such a program, is irreconcilable with Cohalan. The majority’s attempt to distinguish Cohalan from the case at bar is unavailing.

The role of the Judiciary, when presented with a constitutional challenge to an Executive Order, is not to construct an authorization for the order, but to demand that the Executive specify its source of authority. (Matter of Doyle, 257 NY 244, 268 [Cardozo, Ch. J.]; Northern Securities Co. v United States, 193 US 197, 400 [Holmes, J., dissenting].) While I may be fully sympathetic to the substance of the policy initiative at issue, the "State Program for Voter Registration” as established by Executive Order No. 43 manifestly conflicts with the voter registration program provided for in the Election Law and adopts a policy explicitly rejected by the Legislature. Thus, it constitutes a nullification of legislative will and an ultra vires act.

Judges Meyer, Simons, Kaye, Alexander and Titone concur with Chief Judge Wachtler; Judge Jasen dissents in part and votes to reverse on plaintiff’s appeal in a separate opinion.

Defendants’ cross appeal dismissed, without costs. Defendants’ oral motion for leave to appeal granted. Order affirmed, without costs.

      . The cross appeal should be dismissed. The order of the Appellate Division, though termed by it one of reversal, is in effect a modification by which defendants are not aggrieved because it struck portions of the injunction against them and declared the executive order constitutional. Furthermore, no substantial constitutional question is directly involved on the cross appeal, which pertains only to the limited injunction against receptacles for completed registration forms. Because, however, we deem it appropriate to dispose of all the issues in this case, we grant defendants’ motion, made at oral argument, for leave to cross-appeal.

      . According to the dissent, the constitutionality of Executive Order No. 43 "is wholly contingent upon whether there exists a specifically conferred legislative authorization for the gubernatorial act” (dissenting opn, at p 193; emphasis in original). Relying on Rapp v Carey (44 NY2d 157), among other authorities, in support of this proposition, the dissenter ignores this language in that decision.

      . NY Constitution, article II, § 8, provides in pertinent part: "All laws creating, regulating or affecting boards or officers charged with the duty of registering voters * * * shall secure equal representation of the two political parties which, at the general election next preceding that for which such boards or officers are to serve, cast the highest and next highest number of votes.”

      . Election Law § 5-210 (3) provides in pertinent part: "Completed application forms, when received by any county board of elections or showing a dated cancellation mark of the United States Postal Service not later than the thirtieth day before the next ensuing primary, general or special election, and received no later than the twenty-fifth day before such election, shall entitle the applicant to vote in such election, if he is otherwise qualified.”

        . Election Law § 5-210 (6) (a) provides in pertinent part: "Upon its receipt by the county board of elections, each application form shall be reviewed and examined by at least two members or employees of such board authorized by the board to receive registrations. Such two members or employees shall represent the two major political parties. If the application shall contain substantially all the required information indicating that the applicant is legally qualified to register and/or enroll as stated in his application, the county board of elections shall transfer all information on such application to the appropriate registration records.”

      . Former Chief Judge Breitel has realistically observed that an Executive Order has "complete effect as if a 'law’ had been passed by the legislative branch”. (Breitel, The Lawmakers, Benjamin N. Cardozo lectures delivered before Assn of Bar of City of NY, at 807, 827, Mar. 23, 1965; see also, 20 Record of Assn of Bar of City of NY 180,201.) Where, as here, the Executive Order directs, rather than requests, State agencies or employees to conduct a designated program, the order has the force and effect of law. (Matter of Di Brizzi [Proskauer], 303 NY 206, 213; Sterling v Constantin, 287 US 378, 399 [Hughes, Ch. J.].)

      . The legislative judgment to vest only Boards of Election with the responsibility to distribute registration materials is vindicated by this case. Pursuant to Election Law § 5-210 (4) (f), the uniform State-wide application form must include "[njotice that political party enrollment is optional but that, in order to vote in a primary election of a political party, a voter must enroll in that political party”. The application for registration and enrollment by mail accordingly states "Enrollment in a political party is optional but if the applicant wishes to vote in a primary election of a political party he must be enrolled in that party”. The signs utilized in the Governor’s "State Program For Voter Registration” state, in bold print, "You must be enrolled in a party to vote in a primary”. (Record, at p 100.) This statement, presumably selected in the discretion of the Voter Registration Task Force, which is not bipartisan, fails to note the optional nature of party enrollment, and lacks the context required by Election Law § 5-210 (4) (f).
      Furthermore, Election Law § 5-210 establishes the circumstances under which the State may assist an individual in completing voter registration forms. This section denominates the County Boards of Election as the only official agencies authorized to provide assistance. Executive Order No. 43 requires State employees, unaffiliated with any Board of Elections, to assist individuals in completing voter registration forms. Executive Order No. 43 thus defeats the legislative policy that official assistance in the completion of voter registration forms be rendered only by the bipartisan, professional staffs of County Boards of Election.

      . See, 2 New York State Legis Digest, 1985, at 148, A 1739, S 2275 (the legislation passed the Assembly and died in the Senate Rules Committee); see also, A 3770-A of 1983-1984.


source: Caselaw Access Project

author: Chief Judge Wachtler Meyer, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Ambrose J. Mountain, Appellant.
    Argued September 11, 1985;
    decided October 24, 1985

      POINTS OF COUNSEL

      Peter L. Rupert for appellant.
    I. The closing of the courtroom to the general public during the victim’s testimony denied appellant his constitutional right to public trial within the meaning of the 6th Amendment. (People v Jelke, 308 NY 56; People v Hinton, 31 NY2d 71, 410 US 911; People v Jones, 47 NY2d 409, 444 US 946; People v Joseph, 59 NY2d 496.) II. The court below improperly restricted the cross-examination of the alleged rape victim regarding sexual intercourse two nights prior to the crime and such restriction violated appellant’s right to confrontation. (People v Mandel, 48 NY2d 952, 446 US 949, 448 US 908; People v Owens, 97 AD2d 855; People v Conyers, 86 Misc 2d 754, 63 AD2d 634; Brookhart v Janis, 384 US 1.) III. Prosecutorial misconduct deprived appellant of a fair trial. (People v Steinhardt, 9 NY2d 267; People v Alicea, 37 NY2d 601; People v Savvides, 1 NY2d 554; People v Crandall, 48 AD2d 946; People v Cook, 37 NY2d 591; People v Sorge, 301 NY 198; People v Schwartzman, 24 NY2d 241, 396 US 846; People v Robinson, 27 NY2d 864; People v Rosenfeld, 11 NY2d 290; People v Sandoval, 34 NY2d 371.) IV. The gun holster of appellant was improperly removed from evidence by the court below. V. The unreasonable delay in the court admitting portions of the victim’s hospital records deprived appellant of a fair trial. VI. The errors in the court below were not harmless and require a new trial. (People v Crimmins, 36 NY2d 230.)

      John B. Poersch, District Attorney (Thomas W. Hefferon of counsel), for respondent.
    I. Defendant-appellant was never deprived of his right to a public trial. (People v Jones, 47 NY2d 409; People v Rickenbacker, 50 AD2d 566; People v Jelke, 308 NY 56; People v Glover, 60 NY2d 783; People v Salcedo, 98 AD2d 961; People v Patterson, 53 NY2d 829; People v Williamson, 51 NY2d 801; People v Hagan, 24 NY2d 395; United States ex rel. Bruno v Herold, 408 F2d 125; People v Monaco, 14 NY2d 43.) II. The trial court’s CPL 60.42 ruling did not impair or impede defendant-oppellant’s right to confrontation. (People v Owens, 63 NY2d 824; People v Rockwell, 97 AD2d 853; People v Westfall, 95 AD2d 581.) III. The conduct of the prosecutor was fair and proper. (People v Schwartzman, 24 NY2d 241; People v Webster, 139 NY 73; Third Great W. Turnpike-Road Co. v Loomis, 32 NY 127; People v Ocasio, 47 NY2d 55; People v Sandoval, 34 NY2d 371; People v Rubin, 101 AD2d 71; People v Nuccie, 57 NY2d 818; United States v Bubar, 567 F2d 192; United States v Dioguardi, 492 F2d 70, 419 US 873; United States ex rel. Leak v Follette, 418 F2d 1266, 397 US 1050.) IV. The gun holster produced in the trial court was never properly in evidence. V. No unreasonable delay occurred in the admission of the hospital record. VI. Defendant-appellant’s trial was free of reversible error. (People v Crimmins, 36 NY2d 230; People v Kennedy, 47 NY2d 196; People v McKenna, 77 AD2d 926; People v Banks, 77 AD2d 742; Nelson v Easton & Amboy R.R. Co., 7 Misc 656; Matter of Gaylord II., 106 AD2d 823; People v Eddy, 95 AD2d 956; People v Torello, 94 AD2d 857; People v Karpowski, 99 AD2d 118.)
   OPINION OF THE COURT

Chief Judge Wachtler

The defendant, a former police officer, has been convicted of raping and sodomizing a woman being held for arraignment in a detention cell at a police station. The Appellate Division affirmed the conviction and the defendant has appealed by leave of a Judge of this court.

The defendant raises a number of issues, most of which relate to the admission or exclusion of evidence at the trial. The primary issue concerns efforts by the prosecutor to establish a relationship between the defendant’s blood type and the blood type found in the assailant’s sperm, a procedure universally accepted in other jurisdictions but previously not allowed in this State in cases, such as this, where the blood type is a common one.

In the early morning hours of Saturday, September 12, 1981 the Schenectady Police arrested a young woman on a minor charge. She was transported to a police station where she was held in a detention cell for arraignment on Monday morning. On the day of the arrest the defendant was a police officer assigned to that station as a telephone operator. Although his duties did not require him to care for the female detainees, who were in the charge of a matron, he approached the complainant several times during the first day of her detention. He initially inquired about her bail and then suggested he could help her or indicated that he was attempting to raise money for her release. He also called her and gave her a telephone number at which he could be reached. On another occasion that day he gave her a note asking her to call him at a certain number if she was released.

On Sunday afternoon the defendant again came to the complainant’s cell. He unlocked the door and asked her if she was ready and when she said she was, he pointed to something behind her. As she turned the defendant grabbed her throat, cupped his hand over her mouth, told her to pull down her pants and warned her that he would kill her if she screamed. He then forced her to her knees and proceeded to rape her. After experiencing some difficulty, he told her to perform oral sodomy on him. When that act was completed the defendant left and the complainant spit his sperm into a paper cup from her lunch tray.

She did not inform the matron then in charge what had occurred. However, when that matron was relieved she soon informed the new matron that she had been raped and that she had a "specimen”. When she left her cell the following morning she crushed the cup and put it in her pocket. At her arraignment the charge against her was dismissed because the person who had made the complaint against her did not appear. She then informed the court that she had been raped and had a specimen. At the court’s suggestion she reported the incident to a police officer in the building. After her release she went to her girlfriend’s house and then immediately to St. Clare’s Hospital where she again reported the rape and produced the cup. The hospital examination revealed sperm in her vagina. A laboratory examination of the cup showed that it contained sperm. A blood test of the sperm indicated that it contained type A blood.

The defendant was indicted for rape, sodomy, and official misconduct. The prosecutor applied for and was granted an order directing the defendant to submit to a blood test and provide a handwriting sample. Based on the handwriting sample an expert concluded that the note the complainant had received in the detention cell was written by the defendant. The police investigatian also revealed that the telephone number on the note was registered to the security office in St. Clare’s Hospital where the defendant was employed part time as a security guard.

In his opening statement the prosecutor informed the jury that they were going to hear testimony with regard to the blood type of the sperm found in the cup, as well as the blood type of the defendant. The defendant objected to the introduction of this evidence but the court sustained the objection only to the extent of excluding evidence of the defendant’s blood type. The blood type of the sperm in the cup and the fact that a blood test was performed on the defendant, together with the other evidence set forth above, was submitted to the jury. The defendant did not testify on his own behalf.

During their deliberations the jury asked the court whether the defendant’s blood type was in evidence and were informed that it was not. The jury found the defendant guilty of rape, sodomy, and two counts of official misconduct. The Appellate Division unanimously affirmed (105 AD2d 494).

On this appeal the defendant urges that the court erred in permitting the prosecutor to introduce evidence that the assailant’s sperm contained type A blood, and allowing "references” to the defendant’s blood type. He relies on People v Robinson (27 NY2d 864).

In the Robinson case this court stated at page 865: "Proof that the defendant had type 'A’ blood and that the semen found in and on the body of the decedent was derived from a man with type 'A’ blood was of no probative value in the case against defendant in view of the large proportion of the general population having blood of this type and, therefore, should not have been admitted”. That case is distinguishable because there the relationship between the defendant’s blood type and the assailant’s was established. In the case now before us the connection was not made because the defendant successfully objected to the introduction of evidence of his blood type. It may be, as the defendant suggests, that the jury was confused by the evidence of blood testing and typing. The evidence was so nearly complete that an inattentive jury might have been misled into believing that the relationship had been established. On the other hand, the jury did ask the court during deliberations whether the defendant’s blood type was in evidence and was informed that it was not. Thus it appears that the defendant was not prejudiced by the proof because the jury detected the gap and realized that the People had not proven that the defendant had the same blood type as the rapist.

In essence the defendant urges that the Robinson rule should be extended to make it reversible error whenever the court admits evidence that the assailant had a common blood type. However, thorough consideration of the Robinson rule shows that it is not well founded and should no longer be followed.

The Robinson decision itself is a two-line memorandum in which the court stated the rule quoted above but nevertheless affirmed the conviction on harmless error grounds (People v Robinson, 27 NY2d 864, supra). It was followed in People v Macedonio (42 NY2d 944), where the conviction was reversed with the court noting in another brief memorandum, the introduction of the blood evidence and the fact that the prosecutor had introduced a confession obtained in violation of the defendant’s constitutional rights. More recently in Matter of Abe A. (56 NY2d 288, 299), where the blood type at issue was found in less than 1% of the population, Robinson was found inapplicable. The court stated at page 299: "The scientific validity and reliability of tests used to identify the type of blood a particular individual carries and to determine whether the blood of one person matches that of another are well recognized in both the medical and legal communities [citations omitted]. Moreover, the relative rarity of the assailant’s type of blood relegates arguments as to remoteness to the realm of weight rather than admissibility”.

The Robinson rule has been criticized by noted scholars (see, e.g., McCormick, Evidence § 205, at 619 [3d ed]) and in other jurisdictions has been universally rejected (see, People v Lindsey, 84 Cal App 3d 851, 149 Cal Rptr 47; Admissibility, Weight, and Sufficiency of Blood-Grouping tests in Criminal Cases, Ann., 2 ALR4th 500, 511-512). For a time it appeared that Iowa would accept the rule (see, State v Peterson, 219 NW2d 665) but now it is clear that New York stands alone (see, State v Mark, 286 NW2d 396, 412-413 [Iowa]; McCormick, Evidence § 205, at 619, n 31 [3d ed]).

The basic problem with the rule is the premise on which it is founded. Although blood grouping may only serve to show that the defendant and the assailant are part of a large group having that particular characteristic, it does not follow that such proof completely lacks probative value. When identity is in issue, proof that the defendant and the perpetrator share similar physical characteristics is not rendered inadmissible simply because those characteristics are also shared by large segments of the population. For instance, evidence that the person who committed the crime was white would not be excluded although that may in-elude 80% of the population. Similarly, evidence of a person’s sex, which would include roughly 50% of the general population, is routinely accepted as having some probative value with respect to identification. Proof of such common characteristics, of little value individually, may acquire great probative value when considered cumulatively (McCormick, Evidence § 171, at 364-365 [1954]). Thus, the Robinson rule goes too far in holding that evidence showing that the defendant and the assailant have type A blood, is of no probative value merely because that includes 40% of the population (see, Matter of Abe A., supra, at p 299, n 4).

It appears that the only justification for excluding such evidence is a fear that the jury may accord it undue weight, beyond its probative value, because of its scientific basis (cf. Richardson, Evidence § 147 [10th ed]). That, however, can generally be avoided by instructions, where requested, emphasizing the fact that it is only circumstantial evidence and noting, perhaps, the percentage of the population involved. In cases where the defendant can show that the potential prejudice outweighs the probative value the court may in its discretion exclude the evidence.

In sum, there is no showing that the defendant was prejudiced by the blood test evidence in this case, and in future cases such evidence should be admissible unless prejudice is shown.

The defendant also claims that the court made erroneous evidentiary rulings on collateral matters concerning the victim’s credibility.

First, the defendant urges that the court improperly permitted the prosecutor to bolster the victim’s credibility with respect to her motive for bringing a civil suit based on the sexual assault. At the trial the defendant introduced evidence that the victim had falsely accused him in order to recover a substantial monetary award in the pending civil action. In rebuttal the People introduced proof that the victim had originally consulted a lawyer because she was afraid and intended to donate any money realized from the suit, in excess of counsel fees, to an organization known as "Rape Crisis”. In support of his contention the defendant relied on two witnesses, with criminal records, who testified to statements they had allegedly heard the victim make. The prosecutor, in rebuttal, relied on the victim’s lawyer to testify to statements and instructions she had allegedly given to him in connection with the pending civil suit.

Although the defendant now contends that the People should not have been permitted to bolster the victim’s credibility, his objection at trial was to relevancy. That objection was properly overruled since the evidence was relevant to rebut the defendant’s contention that the victim had a pecuniary motive for testifying falsely against the defendant.

The defendant also urges that the type of proof was improper because the prosecutor did not rely on the victim’s own testimony but on statements she allegedly made to another outside the courtroom. He claims that this proof should have been excluded as inadmissible hearsay. However, when the victim’s attorney was questioned with respect to his client’s instructions for the disposition of any money that might be realized from the civil suit the defendant did not object on hearsay grounds. He claimed instead that the question was irrelevant and also inadmissible because the victim’s statements were not made in the defendant’s presence. The court properly overruled those objections.

A second credibility ruling which the defendant claims was error relates to a holster belonging to him which the court excluded from evidence. At the trial the victim testified that during the attack the defendant wore a holster that completely covered his gun. The defendant claims that the holster he offered in evidence would have shown that the victim was not truthful on this point because the holster left the handle of the gun exposed.

The holster, however, was for the defendant’s "off-duty” gun, and was excluded by the court on the ground that the defendant had not established a proper foundation to show that it was the holster he wore on the day of the crime. The record on this point shows that the defendant produced his off-duty gun in a holster, inside an evidence envelope. The issue focused on the identity of the gun or weapon which was explored at some length, with only incidental references to a holster. In fact the stray comments on the holster were, for the most part, volunteered by the defendant’s witnesses. There was no direct evidence that this was the holster the defendant was wearing on the day of the crime. Neither of the witnesses called by the defendant with respect to his off-duty gun were able to state which gun or holster the defendant was wearing on the day of the crime. When the court informed the defendant that there was no foundation for the admission of the holster the defendant did not offer to cure the defect nor did he alert the court to the reason why he wanted the holster admitted.

Although a technical argument could be made, as the dissenter has done here, that there was some foundation for the admission of the holster, it is clear from the record that defense counsel focused the attention of the court and the prosecutor on the gun. He created the impression that he was seeking to introduce the gun or weapon, and that the holster was of little or no significance. Indeed, even when the court informed the defendant that it was the court’s understanding that only the weapon was in issue, the defendant did nothing to correct the impression he had created by informing the court of the significance of the holster. Nor did he offer to cure the defect by seeking to call a witness who could testify that he had seen the defendant wear his "off-duty” gun and holster "on duty” on the day of the crime (cf. People v Olsen, 34 NY2d 349). Thus we find no error in the court’s decision to exclude it.

The defendant also contends that the trial court deprived him of a public trial and improperly precluded him from cross-examining the victim pursuant to CPL 60.42 (4). These issues were discussed by the Appellate Division and we agree with that court, for the reasons stated in its memorandum (105 AD2d 494, supra), that the trial court did not err as alleged. We have considered the defendant’s remaining points and have found that they lack merit.

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

Meyer, J.

(dissenting). I agree with the majority opinion except insofar as it holds that the objections to exclusion of the holster and admission of the lawyer’s testimony concerning the proceeds of complainant’s suit against the city were not properly preserved. Because I conclude that these errors were preserved and were not harmless, I would reverse and order a new trial.

With respect to the holster, it is difficult to understand the majority’s statement that defendant’s attorney "created the impression that he was seeking to introduce the gun or weapon, and that the holster was of little or no significance.” (Majority opn, at p 205.) The alleged victim had testified that during the oral sex act she was forced to perform she was kneeling in front of defendant and reached for his gun, but that "[h]is gun didn’t stick out. The holster covered the whole gun”, that "Í was going to grab his gun, but the holster covered the whole gun,” and that "there was like this snap part, and I figured if I snapped it he would feel it, and he’d break my neck or kill me.” Other than to contradict that testimony, there was absolutely no reason for defendant to introduce the gun at all.

And although it is true that there was no direct evidence that the holster introduced with the off-duty gun was the holster worn on the day of the alleged crime (majority opn, at p 204), there was evidence from which the jury could infer that indeed it was the holster worn that day and there is no question that the Trial Judge admitted both defendant’s off-duty gun and holster into evidence. The testimony of Officer Andriano, of the Schenectady Police Department, included the following:

(Defendant’s Exhibit No. B-6 was marked for identification.)

"the court: This is his off-duty gun?

"the witness: Off-duty revolver.

"redirect examination by mr. grasso [defendant’s attorney]:

"Q. Did you ever have occasion to see him wearing his weapon on duty?

"A. Yes, sir.

"Q. Is that weapon that’s in that exhibit marked B-6 similar in size, shape, and nature of the holster?

"A. From what I saw of it, yes.

"Q. That’s your recollection that’s the same type of weapon? You picked it up from him when you picked it up to bring it to the Department?

"A. From what I saw that’s the same weapon and holster from what I saw.

"the court: Why do you call it off-duty?

"the witness: We’re issued a service revolver on duty. You could wear it on duty. An off-duty gun is much smaller and lighter weight. If this is the same gun it’s a five-shot Smith and Wesson .38 special.

"mr. gebell [Assistant District Attorney]: Your Honor, again, I think that the only issue here is the relevancy of a particular gun worn on a particular day. I don’t believe that that witness has in any way identified the gun. In fact, he’s testified he doesn’t know if he had a gun on that day, and I think that it’s irrelevant.

"the witness: I didn’t work that day, that’s why.

"mr. gebell: Well, Your Honor, then it speaks for itself.

"the court: You all done with this witness?

"mr. grasso: Yes. Just one other question before you leave.

"Q. (By Mr. Grasso) How often did you see Officer Mountain priorto, on any regular basis, prior to September 13th of1981?

"A. Every day he worked, and every day I worked for the past 12 years.

"Q. And were you familiar enough with his gun to describe it in the manner in which you just did?

"me. gebell: Your Honor, that’s a leading question.

"the court: Overruled.

"the witness: Yes, sir.

"Q. (By Mr. Grasso) That description you gave is from your recollection of having seen him with it on a regular basis?

"A. Yes, sir.

"Q. Is that the weaponyousaw him wearing at work?

"A. It appears to be the same weapon and holster, yes.

* * *

"Q. (By Mr. Grasso) And what kind of gun is it?

"A. It’s a .38 special Smith and Wesson five-shot snubnose.

"Q. And is that — does that fit the description of the gun you saw him wearing on a regular basis when you saw him?

"A. Yes. It does.

"Q. Does that fit the description of the gun you picked up and brought from him to the Department?

"A. Yes.” (Emphasis supplied.)

A second defense witness, Officer Mulligan, testified with respect to the weapon carried by defendant when on duty as follows:

"Q. Are you familiar with the fact that whether or not Officer Mountain carries a weapon when he’s on duty?

"A. Yes. He did.

"Q. And do you recall what type of weapon he carried?

"A. It was an — I would say a .38 snub nose blue.

"Q. Do you recall what kind of holster he had?

"A. As I recall it was a black leather holster with a strap over the hammer.

"Q. Okay. Did it have a handle on the gun?

"A. Yes.

"Q. Can you tell us whether or not the handle stuck out of the holster or not?

"A. Yes. It did. It was just, as I recall, it was just a strap over the hammer, a thin strap over the hammer itself.”

The Department’s range officer, Officer Martin, whose duty it was to register off-duty guns, testified that defendant’s off-duty gun had been registered on September 28, 1981, which was 15 days after the alleged rape and sodomy, that he did not know whether defendant was wearing the weapon on September 13, 1981, because he, Martin, was not on duty that day. He also identified defendant’s service revolver and testified that an officer on duty would be required to wear a service revolver, but when he was inside was "not required to wear a weapon. He can wear his off-duty weapon.” Defendant’s attorney then offered Exhibit B-6, consisting of the off-duty gun and holster, in evidence, saying, "They have been brought here and adequately identified. Whatever weight the jury wants to give that weapon, I think they should be introduced.” The following colloquy and ruling then ensued:

"the court: Are you saying the offer goes to the weight?

"mr. grasso: Yes.

"the court: Rather than the admissibility?

"mr. gebell: I have no objection to put in the gun worn that day. With regard to this weapon and chain of custody, with regard to this weapon which didn’t appear until more than two weeks after the incident and its production with regard to Officer Andriano’s testimony as to how he got it, he didn’t request the one that he was wearing on that day. There was no mention of that. It’s a self-serving kind of piece of evidence, Your Honor.

"the court: Well, I’m going to receive it and leave it up to the jury. You have heard all the arguments. You decide what weight to give to these particular exhibits.”

Just prior to summations, however, the District Attorney raised the question whether the gun and holster or only the gun had been admitted saying, "I don’t recall any testimony with regard to a holster at all.” The Trial Judge, based upon his recollection, mistaken as the testimony of Andriano and Mulligan demonstrates, that "there was nothing said about the holster”, ruled that "the gun is in evidence. The holster is not”. Their testimony having provided sufficient foundation for admission of the holster and having sufficiently described the appearance of the holster, there was no reason for defendant’s attorney to offer additional evidence of the conflict with the victim’s description of the holster or otherwise to seek to "cure the defect” as the majority suggests (majority opn, at p 204).

That the holster was critical evidence for the defense cannot be doubted, for not only had the alleged victim testified as noted above, but also it is clear from the jury’s request during deliberation to see the holster for the gun, which the court denied, stating that the holster was not in evidence, that it related the victim’s credibility to the holster.

Moreover, the error cannot be held to have been harmless, for the evidence against defendant was far from overwhelming. The victim was the only witness to the multiple sex attacks upon her alleged to have occurred in a cell open to the view of anyone passing by, only a short distance from the matron’s office, and in a cell block which could be entered only with keys kept by the matron, through a door which made a loud bang when it closed. The matron testified that she was on duty on September 13th, between 12 noon and 7 p.m., that the keys were in her possession all the time, and that the victim said nothing to her concerning an attack. Neither she nor the desk officer, whose desk was close to the female cell block, heard a noise such as the cell block door made. Moreover, both she and the desk officer testified that they saw the victim at least once each half hour and saw nothing amiss. Two other witnesses testified that the victim had admitted that she had set defendant up in a plan devised with the man she lived with and expected to get a considerable amount of money, and that defendant had not raped her. That she produced at the hospital a cup into which she said she had, immediately after the incident, spit the sperm ejaculated into her mouth and which was indeed later proved to have contained sperm does not make the evidence against defendant overwhelming in light of the alleged admission that defendant was being set up, the fact that the cup was not observed by anyone until turned over to a nurse at the hospital the next day, and the fact that the victim stopped at the apartment of a friend between the time she was released and the time she arrived at the hospital.

Although the holster error is enough by itself to require a new trial, admission of the victim’s attorney’s testimony concerning donation of the proceeds of her suit against the city was likewise error. The Appellate Division held it admissible under the recent fabrication exception, but the victim never having testified herself that she intended to make such a donation, there was no recent fabrication to which it could relate. Nor can I agree that defendant’s attorney did not object on hearsay grounds, as the majority holds. It is true that he did not use the word "hearsay,” but, as the majority notes, he did object on the grounds that the victim’s conversation with respect to the proceeds of the lawsuit was inadmissible because out of the presence of the defendant. The Trial Judge had previously sustained defendant’s attorney’s objection "to anything [the victim] said out of the presence of this Defendant,” indicating that he understood the objection to be but a shorthand way of saying that had such conversation taken place in defendant’s presence it would be admissible as an admission which, though hearsay, "is admitted as an exception to the hearsay rule” (Richardson, Evidence § 210, at 187 [Prince 10th ed]; Fisch, New York Evidence § 792, at 460 [2d ed]). Were this the only error and were the other evidence against defendant overwhelming, it could be disregarded as harmless for, had the victim been asked on direct examination about the proceeds of the lawsuit, her direction to the attorney might have been a prior consistent statement admissible under the recent fabrication rule after the defense testimony of a set-up came in (see, People v Singer, 300 NY 120; Giordano v Eastern Utils., 9 AD2d 947). As it was presented, however, its admission was error.

Judges Jasen, Simons, Kaye and Titone concur with Chief Judge Wachtler; Judge Meyer dissents and votes to reverse in a separate opinion in which Judge Alexander concurs.

Order affirmed.


author: Meyer, J.

text:
    Robert Buckner, Jr., Respondent, v Motor Vehicle Accident Indemnification Corporation, Respondent, and Liberty Mutual Insurance Company, Appellant.
    Argued October 11, 1985;
    decided November 19, 1985
    POINTS OF COUNSEL

      Carl J. Cochi for appellant.
    I. MVAIC is estopped from raising the issue of whether plaintiff is an eligible injured person under the Liberty policy. (Matter of Hanavan [MVAIC], 33 AD2d 1100; Matter of Stroud [Motor Vehicle Acc. Indemnification Corp.], 17 AD2d 616, 13 NY2d 611.) II. Plaintiff is not an insured as a family member of a close corporation where the corporation is named the insured. (O'Hanlon v Hartford Acc. & Indem. Co., 439 F Supp 377; Fischer v Aetna Ins. Co., 37 AD2d 917; Eveready Ins. Co. v Schwartz, 54 AD2d 750.) III. The insurance policy issued clearly indicates that it is a business auto policy. IV. There is no ambiguity in the language of the uninsured motorist endorsement. (Matter of Country-Wide Ins. Co. v Wagoner, 45 NY2d 581.) V. Plaintiffs status as an employee does not create coverage. (Fischer v Aetna Ins. Co., 37 AD2d 917; Bashor v Excess Ins. Co., 86 AD2d 882.) VI. Plaintiff is entitled to MVAIC benefits. (Eveready Ins. Co. v Schwartz, 54 AD2d 750.)

      Donald S. DiBenedetto and John H. Callahan for Motor Vehicle Accident Indemnification Corporation, respondent.
    I. Plaintiff is an insured person under Liberty’s policy issued to Buckner Associates, Inc.; he is not a qualified person under Insurance Law § 5202 (2) and is, therefore, ineligible for benefits from MVAIC. (Matter of Avila v Motor Vehicle Acc. Indemnification Corp., 71 AD2d 582; Matter of Gorskie v Motor Vehicle Acc. Indemnification Corp., 33 AD2d 1045; Allstate Ins. Co. v Motor Vehicle Acc. Indemnification Corp., 30 AD2d 803; Whiteside v Insurance Co. of State of Pa., 274 App Div 36; Matwijko v Zoladz Lbr., 16 AD2d 1024; Matter of Graber v Motor Vehicle Acc. Indemnification Corp., 38 Misc 2d 969; Matter of Balletti v Motor Vehicle Acc. Indemnification Corp., 16 AD2d 814; Matter ofZuckerman v Motor Vehicle Acc. Indemnification Corp., 13 AD2d 574; Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356; Aetna Cas. & Sur. Co. v General Cas. Co., 285 App Div 767.) II. MVAIC is not es-topped from asserting that plaintiff is an insured under Liberty’s policy issued to Buckner Associates, Inc. (Matter of Delbeau v St. Jean, 66 AD2d 819; Urban Community Ins. Co. v Sedlik, 98 AD2d 663; Matter of Motor Vehicle Acc. Indemnification Corp. [Malone], 16 NY2d 1027; Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11; Schwartz v Public Administrator, 24 NY2d 65; Gilberg v Barbieri, 53 NY2d 285.) III. Liberty’s reliance on Fischer v Aetna Ins. Co., Eveready Ins. Co. v Schwartz and Matter of Rice v Allstate Ins. Co. is misplaced. (Fischer v Aetna Ins. Co., 65 Misc 2d 191, 37 AD2d 917; Eveready Ins. Co. v Schwartz, 54 AD2d 750; Matter of Rice v Allstate Ins. Co., 32 NY2d 6.)

      Robert Buckner, Jr., respondent precluded.
   OPINION OF THE COURT

Meyer, J.

A policy of insurance issued to a corporation does not provide uninsured motorist coverage for the son of the officers and sole shareholders of the corporation, who resides with them and who was injured when struck by a hit-and-run driver while riding his bicycle. The order of the Appellate Division should, therefore, be reversed, with costs, and the order and judgment of Supreme Court, Oneida County, should be reinstated.

Buckner Associates, Inc. is a family owned real estate business. Plaintiff Robert Buckner is a college student who resides with his parents, both of whom are officers of the corporation and who together own all of its outstanding stock. Plaintiff is a college student who performs some part-time work for the corporation. At the time he was injured, however, plaintiff was riding his bicycle and was not engaged in any business of the corporation. He was struck by a hit-and-run driver.

Liberty Mutual Insurance Company issued to Buckner Associates, Inc. a business automobile policy providing liability insurance, personal injury protection, medical payments insurance and uninsured motorist insurance. Plaintiff’s application to Liberty Mutual for first-party benefits was denied on the ground that plaintiff was not within the coverage of the policy. Plaintiff then applied to the Motor Vehicle Accident Indemnification Corporation (MVAIC). Arbitration having resulted in a determination that plaintiff was either an "eligible injured person” within the meaning of the personal injury (no-fault) protection or a "qualified person” entitled to MVAIC benefits, plaintiff began a declaratory judgment action against both Liberty Mutual and MVAIC.

Special Term granted plaintiff’s motion for summary judgment against MVAIC, denied plaintiff’s motion for summary judgment against Liberty Mutual, granted Liberty Mutual’s cross motion to dismiss the complaint and MV AIC’s cross claim against it and entered judgment declaring plaintiff to be a qualified person within the meaning of Insurance Law § 5202 and entitled to benefits against MVAIC. The Appellate Division reversed and granted judgment declaring plaintiff an insured person under the Liberty Mutual policy, reasoning that the references in its uninsured motorist endorsement to "You or any family member” and other references in the policy to relatives and family created an ambiguity which required that the policy be construed against the issuing carrier. We disagree and now reverse.

Whether the policy covers plaintiff turns on a reading of the entire policy, not just a part of the uninsured motorist endorsement. Only if it can reasonably be said on a reading of the policy as a whole that the words, "Who is insured 1. You or any family member” appearing in that endorsement would be so understood by the average person applying common speech (Lewis v Ocean Acc. & Guar. Corp., 224 NY 18, 21) can it be held that Liberty Mutual is obligated to cover such injuries.

Considered with respect to the uninsured motorist endorsement alone, such a construction appears unreasonable, for it defines "family member” as "a person related to you by blood, marriage or adoption who is a resident of your household,” and "it is obvious, even to a casual reader, that the insured was to be a corporation which could not possibly have personal injuries or family” (Dixon v Gunter, 636 SW2d 437, 441 [Tenn, construing an identically worded "You or any family member” policy provision]; accord, Kaysen v Federal Ins. Co., 268 NW2d 920, 923 [Minn, "quite obviously a corporation cannot suffer bodily injury, or have a 'spouse’, 'relative’, or 'household’ ”]; Pearcy v Travelers Indem. Co., 429 So 2d 1298 [Fla App]; Nicks v Hartford Ins. Group, 291 So 2d 673 [Fla App]; Fowler v United States Fid. & Guar. Co., 133 Ga App 842, 212 SE2d 486; Polzin v Phoenix of Hartford Ins. Cos., 5 Ill App 3d 84, 283 NE2d 324; General Ins. Co. v Icelandic Bldrs., 24 Wash App 656, 604 P2d 966; see, 8C Appleman, Insurance Law and Practice § 5080.65). The partnership cases relied on by MVAIC (e.g., O’Hanlon v Hartford Acc. & Indem. Co., 639 F2d 1019) are readily distinguishable, partnerships being a combination of individuals, who can suffer injuries and do have spouses, households and relatives.

Beyond that, however, the endorsement makes clear in its opening paragraph that its definitions are in addition to the words and phrases defined in the policy itself. The declarations of the policy state in Item One that, "Named insured is corporation.” In Part 1 (A), it defines "You” to mean "the person or organization shown as the named insured in item one of the declarations” (emphasis supplied), and in Part 1 (F), states that, " 'Insured’ means any person or organization qualifying as an insured in the who is insured section of the applicable insurance” (emphasis supplied). Thus, the average person could conclude that a person or an organization, but not both, was the insured, as to the basic policy could only conclude that the insured was Buckner Associates, Inc., and as to the "applicable insurance” (i.e., the uninsured motorist insurance) that because the "You” referred to in the "Who is insured” section of the endorsement was a corporation that there could be no "family member” within the definition (quoted above) of that term set forth in that endorsement. For like reasons, nothing in the New York Automobile Accident Indemnification Endorsement changes that conclusion, for its section II defines "insured” to mean "the named insured and, while residents of the same household, his spouse and the relatives of either”. Nor can it be argued that such a construction of the endorsement leaves the uninsured automobile coverage without meaning, for the same section II covers any person while occupying an automobile owned by the corporation or while being operated on behalf of the corporation (General Ins. Co. v Icelandic Bldrs., 24 Wash App, at p 660, 604 P2d, at p 968, supra).

Finally, the situation is not different if one turns to the no-fault endorsement. That defines an "eligible injured person” as "the named insured and any relative who sustains personal injury arising out of the use or operation of any motor vehicle” but defines "named insured” to mean "the person or organization named in the declarations” (emphasis supplied) and "relative” to mean "a spouse, child, or other person related to the named insured by blood, marriage or adoption”, which is the same definition contained in the uninsured motorist endorsement and which, for the reasons above set forth, would not be construed according to common speech to be applicable to a corporation.

For the foregoing reasons, the order of the Appellate Division should be reversed, with costs, and the order and judgment of Supreme Court, Oneida County, should be reinstated.

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

Order reversed, etc.


author: Simons, J.

text:
    The People of the State of New York, Respondent, v Veronica Prescott, Appellant.
    Argued October 17, 1985;
    decided November 19, 1985
    POINTS OF COUNSEL

      Jill F. Moscowitz and William E. Hellerstein for appellant.
    I. The "same offense” standard of the double jeopardy clause of the State and Federal Constitutions was violated where appellant was charged with robbery after having previously pleaded guilty to cover a complaint which charged her with criminal possession of stolen property. (North Carolina v Pearce, 395 US 711; Brown v

      Ohio, 432 US 161; Blockburger v United States, 284 US 299; Illinois v Vitale, 447 US 410; Whalen v United States, 445 US 684; Harris v Oklahoma, 433 US 682; Pandelli v United States, 635 F2d 533; People v Williams, 123 Misc 2d 165; People v Fletcher, 113 Misc 2d 5.) II. Since appellant’s guilty plea did not waive her right to appellate review of her statutory double jeopardy claim, the robbery charge should be dismissed since it was part of the same transaction as her possession of the property stolen during that robbery which charge was contained in a complaint under which she previously had pleaded guilty. (People v Dodson, 48 NY2d 36; People v Lieberman, 79 AD2d 175; People v Ford, 62 NY2d 275; People v Michael, 48 NY2d 1; Menna v New York, 423 US 61; People v Blakley, 34 NY2d 311; People v White, 2 NY2d 220, 353 US 969; People v Rivera, 60 NY2d 110; Matter of Abraham v Justices of N Y. Supreme Ct., 37 NY2d 560; Ashe v Swenson, 397 US 436.)

      John J. Santucci, District Attorney (Andrew Zwerling of counsel), for respondent.
    I. The indictment for robbery was not barred by the double jeopardy clause of the State and Federal Constitutions. (Blockburger v United States, 284 US 299; Brown v Ohio, 432 US 161; Serignese v Henry, 101 Misc 2d 982; United States v Black, 759 F2d 71; Flittie v Solem, 751 F2d 967; United States v Ferrugia, 604 F Supp 668; Iannelli v United States, 420 US 770; United States v Faymore, 736 F2d 328; United States v Papa, 533 F2d 815; Illinois v Vitale, 447 US 410.) II. Defendant waived her statutory claim under CPL 40.20 when she pleaded guilty to the lesser crime of attempted robbery. (People v Michael, 48 NY2d 1; People v Dodson, 48 NY2d 36; People v Cramer, 85 AD2d 832; People v Artis, 74 AD2d 644; People v Rivera, 60 NY2d 110; Matter of Abraham v Justices of N. Y. Supreme Ct., 37 NY2d 560; People ex rel. Franklin v Warden, 31 NY2d 498; People v Osgood, 52 NY2d 37; People v Arturo, 122 Misc 2d 1058; People v Thompson, 111 Misc 2d 521.) III. The indictment for robbery was not barred by CPL 40.20 because robbery, as defined, contains an element which is not an element of criminal possession of stolen property, and vice versa, and the statutory provisions defining the two offenses were designed to prevent different kinds of harm or evil. (Blockburger v United States, 284 US 299; People v Fletcher, 113 Misc 2d 5; People v Artis, 14 AD2d 644; People v Harris, 119 Misc 2d 172; People v Woods, 41 NY2d 279.)
   OPINION OF THE COURT

Simons, J.

Defendant Veronica Prescott has been convicted on her plea of guilty to attempted robbery in the second degree in full satisfactian of an indictment charging her with robbery in the second degree and four counts of criminal possession of stolen property in the second degree. Before pleading, defendant moved to dismiss the entire indictment claiming that a prior prosecution, which ended in a bargained plea to disorderly conduct, barred the second indictment under New York’s previous prosecution statutes (see, CPL 40.10 etseq.)- The trial court granted defendant’s motion as to the four counts of criminal possession, but denied the motion as to the robbery count. Defendant then pleaded guilty to the reduced charge. On appeal to this court, defendant claims that her conviction for attempted robbery was obtained in violation of her statutory and constitutional rights to be free from multiple prosecutions for the same offense.

There should be an affirmance. Defendant forfeited her right to challenge the trial court’s adverse ruling on her statutory previous prosecution claim when she pleaded guilty to the reduced charge (see, People v Dodson, 48 NY2d 36; compare, People v Taylor, 65 NY2d 1; People v Sobotker, 61 NY2d 44). While the defendant’s constitutional claim survived the trial court’s acceptance of her plea and, indeed, may be raised here for the first time (see, People v Michael, 48 NY2d 1, 7; Menna v New York, 423 US 61), the claim is without merit because defendant’s previous conviction resulted from a separate and distinct offense under the Penal Law (see, Blockburger v United States, 284 US 299; Illinois v Vitale, 447 US 410).

Defendant’s convictions resulted from a series of events that began in a shopping mall parking lot on July 30,1979 when Lillian Hasten and another woman were pulled from their car by two men who then seized their purses and drove away in the Hasten car. Approximately four hours later, defendant attempted to use one of Mrs. Kasten’s credit cards to purchase jewelry at an Abraham & Straus Department Store. The card had previously been reported stolen, however, so the store’s security personnel detained defendant and notified Mrs. Hasten. She came to the store with her husband, who is a police officer, and he found property belonging to his wife and to her friend during a search of defendant’s car.

On July 3,1979, an employee of Abraham & Straus filed a complaint charging the defendant with fraud, larceny as to Abraham & Straus, criminal possession of stolen property (credit cards), forgery and criminal impersonation. On September 6, 1979, defendant pleaded guilty to disorderly conduct in satisfaction of all the charges arising from the store’s complaint and was given a conditional discharge.

On November 2, 1979, defendant was indicted on charges of robbery, second degree, and four counts of criminal possession of stolen property (credit cards) arising from the theft of property belonging to Mrs. Kasten and her friend. She moved to dismiss the indictment pursuant to the provisions of CPL 40.20. The court granted the motion in part and dismissed the four counts of criminal possession, but denied the motion insofar as it sought dismissal of the robbery charge. Defendant then entered a negotiated plea of guilty to attempted robbery in the second degree. On appeal from the robbery conviction, the Appellate Division affirmed, holding that defendant had waived the claim for relief under CPL 40.20 by her plea of guilty. It did not address her constitutional claim.

It is a fundamental principle of our legal system that a defendant may not be twice placed in jeopardy for the same offense (see, People v Rivera, 60 NY2d 110, 114). In 1970, the New York State Legislature expanded the protection against double jeopardy found in the 5th Amendment of the United States Constitution by enacting CPL article 40 which contains additional grounds for prohibiting multiple prosecution of offenses. CPL 40.20, the section before us on this appeal, prohibits separate prosecutions for "two offenses based upon the same act or criminal transaction”, unless one of six exceptions is met (CPL 40.20 [2] [a]-[f]; and see, People v Rivera, supra). In People v Dodson (48 NY2d 36, supra), we held that a defendant’s right under this section to be free from further prosecution may be lost if the defendant fails to raise the claim prior to, or at the time of, his plea (id., at pp 38-39). Here, defendant asserted her statutory claim before the plea but she pleaded guilty after her motion was denied. We now hold that a guilty plea results in forfeiture of a defendant’s 40.20 claim even though the claim has been presented to the court prior to the plea.

A guilty plea represents a compromise or bargain struck after negotiation between the defendant and the People. It is meant to mark the end of a criminal case, not a "gateway” to further litigation (see, People v Taylor, 65 NY2d 1, 5, supra). Thus, the plea both waives certain rights attendant to trial and forfeits rights to renew arguments made before a plea is accepted. There is no mechanical rule that establishes when a claim is forfeited by a guilty plea, but we have held that even though certain constitutional rights would survive a guilty plea, related statutory rights are nonetheless forfeited by it "when the statute would confer on the defendant greater rights than the Constitution demands” (People v Sobotker, 61 NY2d 44, 48, supra [immunity]; see also, People v Howe, 56 NY2d 622; People v Thill, 52 NY2d 1020; People v Friscia, 51 NY2d 845 [speedy trial]). In such instances, the question is not whether the defendant made a knowing and intelligent waiver, but whether a forfeiture of the statutory right was a necessary consequence of the guilty plea, as a matter of policy (People v Sobotker, supra). Due concern for finality in criminal prosecutions and for the conservation of judicial resources requires that, in the absence of constitutional or jurisdictional defects, a guilty plea should end the litigation. It is also important that a defendant who accepts a "carefully orchestrated bargain” should not keep the benefits of the reduced charge, thereby eliminating the risks of conviction on a greater charge or more severe sentence, and yet be relieved of the admission of guilt which is his consideration for the bargain (see, People v Lieberman, 79 AD2d 175, 178 [Silverman, J., concurring]). These concerns are all the more compelling when considered against the availability, prior to trial, of an article 78 proceeding to prohibit the People from prosecuting a case that violates statutory, as well as constitutional, double jeopardy principles (see, People v Abbamonte, 43 NY2d 74, 81; and see, People v Lieberman, supra, at p 179 [Silverman, J., concurring]).

Because defendant forfeited her statutory claim, we do not reach the merits of her contention that prosecution was foreclosed by CPL 40.20 (2) (b). In Menna v New York (423 US 61, supra), however, the Supreme Court held that the constitutional protection against double jeopardy contained in the 5th Amendment is not waived by a counseled guilty plea where the charge, on its face, is one that the State may not constitutionally prosecute (Menna v New York, supra, at p 62, n 2). Accordingly, we address the merits of the constitutional claim.

The constitutional prohibition against double jeopardy encompasses three separate guarantees. It protects against (1) a second prosecution for the same offense after an acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense (see, North Carolina v Pearce, 395 US 711, 717). Only the second guarantee is relevant to this appeal. The test for determining whether two offenses are the same within the meaning of the double jeopardy clause is whether two distinct statutory provisions each requires proof of a fact that the other does not (see, Illinois v Vitale, 447 US 410, 416, supra; Brown v Ohio, 432 US 161, 166 [quoting Blockburger v United States, 284 US 299, 304, supra]). The Blockburger test focuses on the proof necessary to prove the statutory elements of each offense charged against the defendant, not on the actual evidence to be presented at trial (see, Illinois v Vitale, supra). Thus, a substantial overlap in the proof presented is not dispositive if the test is otherwise satisfied (see, Illinois v Vitale, supra, at p 416, n 6 [quoting Iannelli v United States, 420 US 770, 785, n 17]). If a specific statutory offense itself is always a necessary element of a separately charged offense, however, the two offenses are the same under Blockburger (see, Illinois v Vitale, supra, at p 419 [analyzing "careless failure to slow” and "manslaughter by automobile”]).

Here, the defendant argues that the offense of criminal possession of stolen property is a necessary element of robbery in the second degree and that double jeopardy principles are violated by a prosecution for the latter offense following a conviction for the former. We disagree.

In the first prosecution, defendant was charged with criminal possession of stolen property, second degree, pursuant to Penal Law § 165.45, based on a complaint filed by an employee of the Abraham & Straus Department Store. If the defendant had not pleaded guilty to a lesser charge, the People would have been required to prove the requisite possession and intent, as well as the fact that the property at issue was a credit card. To contrast, a subsequent prosecution of the defendant for robbery in the second degree 6 based on the occurrence in the shopping mall parking lot would require proof of a forcible stealing of property, which would have been satisfied by a showing that Mrs. Kasten’s pocketbook was stolen, and that the defendant was aided by another person actually present, as the indictment alleged. Manifestly, under the Blockburger line of cases, these offenses are separate and distinct because the People would not need to prove criminal possession of credit cards in order to sustain a conviction of robbery in the second degree, nor prove forcible taking or aid by another to sustain a conviction for criminal possession (compare, Blockburger v United States, 284 US 299, supra; Illinois v Vitale, 447 US 410, supra; Harris v Oklahoma, 433 US 682; Brown v Ohio, 432 US 161, supra). Consequently, the defendant’s constitutional right against double jeopardy in prosecutions stemming from the July 30,1979 robbery has not been violated.

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

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur.

Order affirmed.

      . In People v Thomas (53 NY2d 338), we noted the distinctions between preservation, waiver and forfeiture of claims (see, People v Thomas, supra, at p342, n 2). Preservation concerns whether an issue has been properly brought to the attention of the Trial Judge and opposing attorneys. Express waiver results from an intentional abandonment of a known right or privilege. Forfeiture occurs by operation of law as a consequence of a guilty plea with respect to issues which, as a matter of policy, the law does not permit to survive such a plea.

      . Defendant’s contention that the statutory double jeopardy claim goes to the jurisdiction of the courts to entertain a prosecution is implicitly foreclosed by our decision in People v Dodson (48 NY2d 36).

        . In People v Abbamonte (43 NY2d 74), this court reached the merits of three defendants’ statutory double jeopardy claims despite their prior guilty pleas (see, People v Abbamonte, supra, at p 81). Abbamonte is not controlling here because in that case the court accepted defendants’ negotiated plea conditioned upon the survival of their statutory claim (but cf. People v Howe, 56 NY2d 622, revg 84 AD2d 909).

      . Penal Law § 165.45 provides, in pertinent part:
      "A person is guilty of criminal possession of stolen property in the second degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when:
      "1. The value of the property exceeds two hundred fifty dollars; or
      "2. The property consists of a credit card”.

      . Penal Law § 160.10 provides, in pertinent part:
      "A person is guilty of robbery in the second degree when he forcibly steals property and when:
      "1. He is aided by another person actually present”.