author: Chief Judge Wachtler.

text:
    Allied Chemical, an Operating Unit of Allied Corporation, Appellant, v Niagara Mohawk Power Corporation et al., Respondents.
    Argued May 26, 1988;
    decided July 7, 1988

      POINTS OF COUNSEL

      Paul A. Feigenbaum, Algird F. White, Jr., and Lawrence H. Cooke for appellant.
    I. Applicable legal standards respecting pleadings mandate reversal. (Cohn v Lionel Corp., 21 NY2d 559; Bruno v New York News, 68 AD2d 987; Foley v D’Agostino, 21 AD2d 60; Catli v Lindenman, 40 AD2d 714, 33 NY2d 1002; H. M. Brown, Inc. v Price, 38 AD2d 680; Richardson v Coy, 28 AD2d 640; Guggenheimer v Ginzburg, 43 NY2d 268; Sanders v Winship, 57 NY2d 391; Morone v Morone, 50 NY2d 481; 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506.) II. The complaint is not barred by the doctrine of res judicata. (Matter of American Ins. Co. [Messinger — Aetna Cas. & Sur. Co.], 43 NY2d 184; Matter of Venes v Community School Bd., 43 NY2d 520; Matter of Consumer Protection Bd. v Public Serv. Commn., 97 AD2d 320; Bernstein v Birch Wathen School, 71 AD2d 129, 51 NY2d 932; Matter of Public Serv. Commn. v Norton, 304 NY 522; Matter of New York Tel. Co. v Public Serv. Commn., 64 AD2d 232, 46 NY2d 710; Matter of New York City Hous. Auth. v Public Serv. Commn., 23 AD2d 277, 17 NY2d 246; Matter of Niagara Mohawk Power Corp. v Public Serv. Commn., 66 NY2d 83; Ryan v New York Tel. Co., 62 NY2d 494; Lane Constr. Corp. v Winona Constr. Co., 49 AD2d 142.) III. The complaint is not barred by the Statute of Limitations. IV. Based on the undisputed facts of record, plaintiff Allied is entitled to summary judgment as a matter of law. (Fertico Belgium v Phosphate Chems. Export Assn., 100 AD2d 165; Ferguson v Ferguson, 97 AD2d 891; Freidus v Todem Homes, 80 AD2d 575, 56 NY2d 526; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Manes Co. v Greenwood Mills, 53 NY2d 759; Kelly’s Rental v City of New York, 44 NY2d 700; People v Consolidated Edison Co., 34 NY2d 646; City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470; Janos v Peck, 21 AD2d 529, 15 NY2d 509; Pash v Wagner, 2 Misc 2d 822.)

      Leon A. Allen, Jr., Gary J. Lavine, Cathleen A. McNulty and Bert H. Ware for Niagara Mohawk Power Corporation, respondent.
    I. The doctrines of res judicata and collateral estoppel bar Allied’s attempt to relitigate its dispute with Niagara Mohawk. (Schwartz v Public Adm’r, 24 NY2d 65; Brugman v City of New York, 102 AD2d 413, 64 NY2d 1011; Ryan v New York Tel. Co., 62 NY2d 494; Liss v Trans Auto Sys., 68 NY2d 15; Matter of Venes v Community School Bd., 43 NY2d 520; Matter of Evans v Monaghan, 306 NY 312; Parklane Hoisery Co. v Shore, 439 US 322; United States v Utah Constr. Co., 384 US 394; Fish v Vanderlip, 218 NY 29; Schuylkill Fuel Corp. v B. & C. Nieberg Realty Corp., 250 NY 304.) II. The Commission proceeding was of an adjudicatory nature as to the Allied-Niagara Mohawk dispute. (James v Alderton Dock Yards, 256 NY 298, 681; Franza v Carey, 115 Misc 2d 882, 102 AD2d 780; Zimbler v Felber, 111 Misc 2d 867; Barry v Ready Reference Publ. Co., 25 AD2d 827; Medical World Publ. Co. v Kaufman, 29 AD2d 859; Justice Ct. Mut. Hous. Coop. v Sandow, 50 Misc 2d 541; Subcontractors Trade Assn. v Koch, 62 NY2d 422; Law Research Serv. v Honeywell, Inc., 31 AD2d 900; Motor Vehicle Acc. Indem. Corp. v National Grange Mut. Ins. Co., 26 AD2d 6, 19 NY2d 115; Ferris v Phoenix Mut. Life Ins. Co., 241 App Div 570, 266 NY 527.) III. Allied’s action is barred by the Statute of Limitations. (Beaudry v ITT Grinell Indus. Piping, 120 Misc 2d 654.) IV. Allied is not entitled to summary judgment.

      Marilyn Mann Faulkner and Robert A. Simpson for Public Service Commission of the State of New York, respondent.
    I. Allied’s contract action is barred by the doctrines of collateral estoppel and thé Statute of Limitations. (Ryan v New York Tel. Co., 62 NY2d 494; Matter of Venes v Community School Bd., 43 NY2d 520; Matter of Evans v Monaghan, 306 NY 312; International Tel & Tel. Corp. v American Tel. & Tel. Co., 444 F Supp 1148; Matter of Consumer Protection Bd. v Public Serv.

      Commn., 97 AD2d 320; Tagg Bros. v United States, 280 US 420; Weinberger v Hynson, Westcott & Dunning, 412 US 609; Van Dussen-Storto Motor Inn v Rochester Tel. Corp., 42 AD2d 400, 34 NY2d 904; United States v Western Pac. R. R. Co., 352 US 59; New York Tel. Co. v State of New York, 58 NY2d 658.) II. The Commission has jurisdiction over purchase rates between a utility and a qualifying facility. (Matter of Public Serv. Commn. v Rochester Tel. Corp., 55 NY2d 320; Matter of Consolidated Edison Co. v Public Serv. Commn., 63 NY2d 424; Matter of New York Tel. Co. v Public Serv. Commn., 98 AD2d 535; United States v Utah Constr. Co., 384 US 394; Van Dussen-Storto Motor Inn v Rochester Tel. Corp., 42 AD2d 400.) III. The Commission’s ruling was a final determination of the Allied-Niagara Mohawk dispute. (Beaudry v ITT Grinnell Indus. Piping, 120 Misc 2d 654.)
   OPINION OF THE COURT

Chief Judge Wachtler.

In this contract action plaintiff, Allied Chemical, alleges that defendant, Niagara Mohawk Power Corporation (NIMO), has not fully paid for electricity it agreed to purchase from plaintiff. The dispositive issue in this dispute, however, unlike Staatsburg Water Co. v Staatsburg Fire Dist. (72 NY2d 147 [decided today]), was fully, fairly and conclusively litigated by these parties, at their request, in a quasi-judicial proceeding before the Public Service Commission (PSC), thereby precluding relitigation of the issue in this action.

The Public Utility Regulatory Policies Act of 1978 (PURPA) (16 USC § 2601 et seq.) and the regulations of the Federal Energy Regulatory Commission (see, 18 CFR 292.303, 292.304) require that regulated utilities purchase electricity from certain alternative generators of electricity known as "qualifying cogenerating facilities”. The rate paid by the utility for the electricity depends upon the date of commencement of construction of the cogenerating facility. Cogenerators for which construction commenced after November 9, 1978 are "new capacity” and receive payment at a rate at least equal to full avoided costs, while facilities for which construction commenced before that date are "old capacity”, and the payment rate may be less than full avoided costs, subject to the determination of the State regulatory authority (18 CFR 292.304 [b] [2]-[3]).

Allied Chemical owns an old capacity qualifying cogeneration facility located in Solvay, New York. In 1981 it entered into a contract with NIMO, a regulated utility, for the sale of electricity from the Solvay cogenerator at a rate less than full avoided costs. The contract provided, however, that "either party may elect to replace the price for energy as specified above with the applicable rate specified by the [PSC] either in a general tariff approved by the [PSC] or upon petition by either party to this Agreement.”

On May 12, 1982, the PSC issued opinion No. 82-10, requiring electric utilities, including NIMO, to file tariff leaves reflecting payment for cogenerated electricity at full avoided costs. NIMO then filed a new tariff, which became effective on February 20, 1984. On March 20, 1984, Allied Chemical advised NIMO that the new tariff was an "applicable rate” under the contract, and that Allied Chemical elected to receive this new rate for the sale of electricity from its Solvay cogenerator.

NIMO then filed a petition with the PSC, under section 204 of the State Administrative Procedure Act, seeking a declaratory ruling that the new tariff did not apply to old capacity cogenerators, and thus did not constitute an "applicable rate” under the contract. Allied Chemical responded by filing a counterpetition and complaint with the PSC, alleging that the tariff did cover old capacity cogenerators, and that as a result it could elect to receive full avoided costs for its sale of electricity to NIMO.

The PSC considered the parties’ claims in the context of its more general proceedings to implement PURPA; in a single proceeding the PSC considered not only the question of whether the new tariff constituted an "applicable rate” under the contract, but also, genetically, whether in the future old capacity generators should be entitled to receive payment at the full avoided costs rate. The PSC then issued two statements. The first, dated January 22, 1985, held that the new tariff did not include old capacity cogenerators, and thus Allied Chemical could not elect to receive the new tariff rate under the contract. In that ruling the PSC also suggested that a 10-year phase-in of a full avoided cost rate for old capacity cogenerators may be appropriate, and solicited comments on the issue. On February 14, 1986, after receiving comments on the proposal, the PSC issued a second statement, formally adopting a 10-year phase-in of a full avoided cost rate for old capacity cogenerators.

Allied Chemical did not seek article 78 review of either PSC ruling. It did, however, commence the present contract action, seeking payment at the full avoided costs rate from March 20, 1984, the date of the alleged election under the contract, and February 14, 1986, the date on which the PSC allowed a phase-in of the full avoided costs rate. NIMO then moved to dismiss the complaint, primarily on res judicata grounds. Before deciding the motion, the trial court directed that the PSC be added as a party, and the PSC was served with a summons and amended complaint on July 30, 1986. The PSC then moved for summary judgment, on res judicata and Statute of Limitations grounds. The trial court granted the motions of NIMO and PSC, dismissing Allied Chemical’s complaint, and the Appellate Division affirmed. We now also affirm.

The elements necessary in all cases for issue preclusion are well known. It is required that an issue in the present proceeding be identical to that necessarily decided in a prior proceeding, and that in the prior proceeding the party against whom preclusion is sought was accorded a full and fair opportunity to contest the issue (Schwartz v Public Adm’r, 24 NY2d 65, 71; Ryan v New York Tel Co., 62 NY2d 494, 500-502). While issue preclusion may arise from the determinations of administrative agencies, in that context the doctrine is applied more flexibly, and additional factors must be considered by the court (cf., Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147 [decided today], supra). These additional requirements are often summed up in the beguilingly simple prerequisite that the administrative decision be "quasi-judicial” in character (see, e.g., Ryan v New York Tel. Co., supra, at 500; Bernstein v Birch Wathen School, 71 AD2d 129, 132, affd 51 NY2d 932). However, the determination of whether an agency proceeding was "quasi-judicial” actually involves a multifaceted inquiry.

First, the court must make the threshold determination that the agency has the statutory authority to act adjudicatively. If the agency has such authority, the court must then ascertain whether the procedures used in the administrative proceeding assured that the information presented to the agency were sufficient both quantitatively and qualitatively, so as to permit confidence that the facts asserted were adequately tested, and that the issue was fully aired (see, Brugman v City of New York, 64 NY2d 1011, 1012; Ryan v New York Tel. Co., supra, at 498; 4 Davis, Administrative Law § 21:3 [2d ed 1983]; Restatement [Second] of Judgments § 83). Additionally, the expectation of the parties is important in determining the fairness of applying issue preclusion in a particular case; thus, a party explicitly soliciting resolution of an issue from an agency, who fully participates in the administrative proceeding which follows with the expectation that all will be bound by the result reached there, may be fairly precluded from relitigating the issue in a subsequent proceeding (see, Staatsburg Water Co. v Staatsburg Fire Dist., supra). The court must look at the over-all context of the agency’s decision to assess whether according a preclusive effect to a particular agency determination is consistent with the agency’s scheme of administration; for example, the agency’s need for flexibility, and its need to modify prior determinations in order to adapt its policy to changing conditions, may counsel against applying issue preclusion to a particular administrative decision (see, Matter of Venes v Community School Bd., 43 NY2d 520, 525; Second Taxing Dist. v Federal Energy Regulatory Commn., 683 F2d 477, 484).

Applying these factors and considerations to the case now before us, we conclude that a preclusive effect is properly accorded to the PSC’s determination that the new tariff was not an "applicable rate” under the contract. First, there can be no doubt that it is within the PSC’s statutory mandate to act adjudicatively (see, Long Is. Light. Co. v Transamerica Delaval, 646 F Supp 1442).

In addition, there is no dispute that the issue before the PSC of whether the new tariff was an "applicable rate” is identical to the issue that Allied Chemical seeks to litigate in this action. Nor can there be any dispute that the PSC answered this precise question in the negative. Allied Chemical also does not contest that it had a full and fair opportunity to controvert this issue before the PSC, or suggest how procedurally the manner in which this issue would be resolved by a court would vary from the PSC’s determination, except for the different personages of the decisionmakers. Finally, Allied Chemical does not assert that giving preclusive effect to the PSC’s determination would be unfair, or was in any way unexpected; in fact, Allied Chemical, with full knowledge of PSC procedures, unequivocally requested and received a dis-positive ruling from the PSC on the very issue it seeks to litigate here. Nevertheless, Allied Chemical does argue, relying upon Matter of Consumer Protection Bd. v Public Serv. Commn. (97 AD2d 320), that the PSC’s decision was a "rate-making”, and therefore "legislative” as opposed to "quasi-judicial” in nature, and that as a result the operation of issue preclusion here would be inconsistent with the PSC’s scheme of administration.

In Matter of Consumer Protection Bd. v Public Serv. Commn. (supra), the Appellate Division held that when the PSC determines an issue solely for the purpose of prospectively setting a utility’s rates, relitigation of the issue in a subsequent proceeding is proper because the PSC’s ratemaking decisions are "legislative”, as opposed to "quasi-judicial”, in character. A number of courts have reached a like conclusion (see, e.g., Second Taxing Dist. v Federal Energy Regulatory Commn., 683 F2d 477, 484, supra; Long Is. Light. Co. v Transamerica Delaval, 646 F Supp 1442, 1450-1451, supra; International Tel. & Tel. Corp. v American Tel. & Tel., 444 F Supp 1148, 1156-1157). The conclusion in these cases does not, however, appear to be based on the informality of the procedures used in a ratemaking proceeding; indeed, the PSC’s ratemaking proceedings often involve formal hearings, complete with the calling and cross-examination of witnesses, and other adjudicative-type procedural safeguards (see, e.g., Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn., 86 AD2d 901, 902; Matter of New York Tel. Co. v Public Serv. Commn., 59 AD2d 17, 19; see also, Public Service Law § 66 [12]). Instead, issue preclusion has not been applied to ratemaking proceedings because the reasonableness of a rate depends upon economic conditions, and numerous policy considerations, all of which invariably change over time, requiring that a utility’s rate be susceptible to reconsideration (Second Taxing Dist. v Federal Energy Regulatory Commn., supra, at 484). Because a ratemaking agency must be free to reassess the reasonableness of rates, it would be illogical, and inconsistent with the agency’s function, to give preclusive effect to a prior ratemaking determination, and courts have refused to do so (see, id.; Long Is. Light. Co. v Transamerica Delaval, supra; see also, Matter of Venes v Community School Bd., 43 NY2d 520, 525, supra).

According a preclusive effect to the disputed issue in this case, however, does not implicate these concerns. Here the PSC made a specific determination of whether a particular tariff in fact applied to old capacity cogenerators, and thus was an "applicable rate” under the contract at issue. This was not a prospective ratemaking, or other type of policy decision that could be susceptible to reassessment in light of changing circumstances. On the contrary, it was a squarely defined controversy over the failure to pay fully under a contract for electricity delivered in the past, and called for a conclusive and final disposition. Therefore it would not be inconsistent with the PSC’s need for flexibility in making policy determinations to accord preclusive effect to the agency’s decision here. In the case before us, the parties voluntarily went to the PSC in order to obtain a dispositive ruling in this matter, that is what they received from the PSC, and that is the effect that the determination will be given by the court in this separate action.

Finally, it should also be noted that the lower courts properly declined to convert the present action into an article 78 proceeding to review the PSC’s determination, because this action was not commenced against the PSC within the four-month limitations period (see, CPLR 217).

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

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

Order affirmed, with costs.

       "Avoided costs” is defined as "the incremental costs to an electric utility of electric energy or capacity or both which, but for the purchase from the qualifying facility or qualifying facilities, such utility would generate itself or purchase from another source” (18 CFR 292.101 [b] [6]).


source: Caselaw Access Project

author: Chief Judge Wachtler. Simons, J.

license: Public Domain

text:
    Peter V. Gisondi, Appellant, v Town of Harrison, Respondent.
    Argued June 1, 1988;
    decided July 12, 1988

      POINTS OF COUNSEL

      Raymond Keegan and Sally Weinraub for appellant.
    The court below erred in its failure to consider the undisputed facts upon which the jury findings were based. (Lee v City of Mount Vernon, 68 AD2d 902, 49 NY2d 1041; Broughton v State of New York, 37 NY2d 451; Boose v City of Rochester, 71 AD2d 59; Scott v Dennett Surpassing Coffee Co., 51 App Div 321; Sweet v Smith, 42 App Div 502; Feinberg v Saks & Co., 83 AD2d 952, 56 NY2d 206; Oakley v City of Rochester, 71 AD2d 15, 51 NY2d 908; Orndorff v De Nooyer Chevrolet, 117 AD2d 365; Brown v City of New York, 92 AD2d 15, 60 NY2d 893; Hornstein v Wolf, 109 AD2d 129, 67 NY2d 721.)

      Michael F. Close for respondent.
    I. Gisondi failed to present a jury question that Maxwell made a knowingly false statement in obtaining the arrest warrant. (Benjamin v United States, 554 F Supp 82; Ross v Village of Wappingers Falls, 62 AD2d 892; Vittorio v St. Regis Paper Co., 239 NY 148; Marks v Townsend, 97 NY 590; Phillips v City of Syracuse, 84 AD2d 957, 57 NY2d 996.) II. Gisondi failed to present a jury question that the felony hearing on August 28 and 31 was tainted by the town’s fraud, perjury or suppression of evidence which might have affected the probable cause determination. (Colon v City of New York, 60 NY2d 78; Graham v Buffalo Gen. Laundries Corp., 261 NY 165; Hopkinson v Lehigh Val. R. R. Co., 249 NY 296; Schultz v Greenwood Cemetery, 190 NY 276; Burns v Wilkinson, 228 NY 113; Lee v City of Mount Vernon, 49 NY2d 1041.) III. If the court grants Gisondi any relief it should remand to the court below to pass upon the town’s appeal on grounds of excessiveness, improper jury charges, improper exclusion of evidence and trial misbehavior.
   OPINION OF THE COURT

Chief Judge Wachtler.

In this action to recover damages for false arrest and imprisonment and malicious prosecution, the primary question on the appeal is whether the evidence at trial was sufficient to establish a prima facie case that the police improperly withheld evidence from the courts in applying for an arrest warrant and testifying at a felony hearing, thus forfeiting their right to claim the immunity generally available to those acting in reliance on court orders.

On August 8, 1979 a woman was dragged into a car and raped in the Town of Harrison. She described her assailant to the police as a white male, over six-feet tall, with brown or black hair of medium length covering his ears, with a large muscular build, like a weight lifter, wearing a tank top, approximately 35 to 40 years old. She also said that she had scratched or "scratched at” his face during the assault. The victim described his car as new or fairly new, possibly a tan or light brown, four door, Ford LTD.

Based on the victim’s description the investigating officer compiled an array of 12 photographs including the plaintiff’s. The victim identified the plaintiff from his photo, as her assailant. The plaintiff fit the description the victim had given to the police, except for his age, which was 19 at the time of the incident.

The officer then took the victim to a Ford dealership where she identified a Thunderbird as the type of car used in the rape. She later identified a Thunderbird parked at the plaintiff’s residence as the car in which she was raped. This car, a 1979 grey Thunderbird, is registered to the plaintiffs father’s business.

On August 22 the officer obtained an arrest warrant based on the victim’s identification. The following day the police arrested the plaintiff on the warrant. At the time of his arrest no scratches were noted on his face. When informed of the charge the plaintiff stated that he was at his family’s summer residence in Massachussets on the date of the rape, and produced a Massachussets vehicle inspection sticker issued on that date and a temporary driver’s license issued the following day. Subsequent investigation indicated that his car had been inspected in Massachussets between 11:00 a.m. and 12:00 noon on the day of the rape and the plaintiff had taken a driving test there at 1:30 p.m. the following day. The Gisondi summer residence in Massachussets is approximately 260 miles from Harrison, or about 4 to 5 hours by car.

At a felony hearing held on August 29, the victim identified the plaintiff as the rapist and the plaintiff called two witnesses who testified that they were with him in Massachussets on the night of the rape. The court ordered the plaintiff held for the Grand Jury and on November 16 the Grand Jury voted to dismiss the charge.

The plaintiff then brought this action against the town seeking damages for false arrest and imprisonment and malicious prosecution. The plaintiff claimed that town police officers falsified certain facts and withheld exculpatory information from the courts in applying for the arrest warrant and testifying at the felony hearing.

The jury returned a verdict for the plaintiff but the Appellate Division reversed, holding that the plaintiff had failed to establish a prima facie case that the police had falsified facts or withheld evidence exculpating the defendant (120 AD2d 48). The plaintiff appeals.

The plaintiff could not prevail on either cause of action if the police had probable cause to believe that the defendant, the plaintiff in the civil action, was the person who committed the rape (Broughton v State of New York, 37 NY2d 451). In this case the victim positively identified the plaintiff and the car, and two courts held in successive proceedings that probable cause existed to arrest the plaintiff and hold him for the Grand Jury. Under these circumstances there is a presumption that the police acted with probable cause (Colon v City of New York, 60 NY2d 78; Broughton v State of New York, supra, at 458; Langley v City of New York, 34 NY2d 885). That presumption is not overcome by the fact that the Grand Jury later voted to dismiss the charges (cf., Colon v City of New York, supra, at 84). It could only be rebutted by proof the court orders were the result of fraud, perjury or the suppression of evidence by the police (Colon v City of New York, supra, at 82-83; Lee v City of Mount Vernon, 49 NY2d 1041, 1042; Broughton v State of New York, supra; Langley v City of New York, supra).

On this appeal the plaintiff focuses on the information allegedly withheld by the police in the warrant application and at the felony hearing, and claims that the proof on this point was sufficient to raise a factual question of concealment for the jury. The evidence allegedly withheld falls into two general categories.

First the plaintiff claims that the police should have disclosed to the courts the discrepancies in the victim’s identification. He notes that the plaintiff was 19 at the time of the incident and not 35 to 40 years old, that no scratches were observed on his face at the time of his arrest, and that the Gisondi car is a grey two-door Ford Thunderbird, not a tan four-door Ford LTD.

Secondly he urges that the police should have investigated the alibi and disclosed the information to the court at the felony hearing.

Claims that the police concealed evidence in connection with a court application or proceeding raise special problems. The police must never resort to fraud or perjury in making such applications. However, they generally do not have to disclose everything they know whenever they appear in court. Whether the withholding of certain evidence constitutes improper concealment or proper prosecutorial discretion depends initially on the type of proceeding involved.

Under existing statutes and accepted practices little need be revealed at the earliest stages, while fuller disclosure is required before the Grand Jury (see, e.g., Boose v City of Rochester, 71 AD2d 59), although even then the prosecutor is not always required to disclose all evidence that may benefit the accused (People v Lancaster, 69 NY2d 20, 22). Similarly, the police are not obligated to pursue every lead that may yield evidence beneficial to the accused, even though they had knowledge of the lead and the capacity to investigate it (Colon v City of New York, supra; Lee v City of Mount Vernon, supra). In short, the police and prosecutors cannot be said to have improperly concealed evidence every time the plaintiff is able to show that they could have done more or could have disclosed more. What is required is proof that the police conduct deviated egregiously from statutory requirements or accepted practices applicable in criminal cases (Lee v City of Mount Vernon, supra, at 1043). The evidence in this case does not rise to that level.

In any investigation the police are likely to encounter discrepancies, particularly in cases involving eyewitness identification. These matters may impair their ability to prove guilt beyond a reasonable doubt at trial, but they generally have little bearing at preliminary stages where the only relevant concern is whether there is sufficient evidence to show probable cause to believe the defendant committed the crime. The police and prosecutors are not required to disclose all of their evidence in an application for an arrest warrant or at a felony hearing (see, e.g., CPL 120.20, 180.70; People v Hodge, 53 NY2d 313, 318-319) and are not generally required to disclose all discrepancies or potential weaknesses in the case uncovered during the investigation. There may be extraordinary cases in which particular discrepancies are so substantive that failure to disclose them would be comparable to fraud or perjury. For instance, if the police knew that a person identified as a rapist by the victim was in fact in custody in the police station at the time of the rape, they could not withhold that evidence from the court with impunity.

But there are no such discrepancies in this case. On the contrary, the discrepancies which the police "failed” to disclose here are not at all unusual, nor was it unusual or improper for them to do so. If the failure to disclose this type of discrepancy were held to constitute withholding of evidence, virtually every failed prosecution in which the police applied for an arrest warrant or testified at a felony hearing without noting every discrepancy revealed during the investigation, would give rise to a suit and trial for false arrest and imprisonment or malicious prosecution.

The plaintiffs contention that the police withheld evidence at the felony hearing, by failing to inform the court of the alibi plaintiff raised when arrested, is also insubstantial. The court was not ignorant of the claimed alibi because, as noted above, the plaintiff himself produced two witnesses who testified that they were with him in Massachussets on the night of the rape. In essence the plaintiff urges that the police should have bolstered his alibi by investigating his statements, that his car was inspected in Massachussets on the day of the rape and that he took his driver’s test there the following day, and informing the court of the results at the hearing. Although we have held that the police need not investigate every asserted alibi (Brown v City of New York, 60 NY2d 893; cf., Colon v City of New York, supra, at 83), plaintiff argues that they should have done so here because the claims concerning the vehicle inspection and driver’s test could be easily verified and completely exonerate him. This information could just as easily have been obtained and presented to the court by the plaintiff. And as the Appellate Division noted, the results were hardly conclusive since the defendant could well have been present in Massachussets having his car inspected at noon on the day of the rape and then make the 4-to-5-hour trip by car back to Harrison, arriving there long before the rape was committed at 10:30 that evening.

In sum, the plaintiff’s proof was insufficient as a matter of law to establish a prima facie case of fraud or concealment on the part of the police, and the Appellate Division properly dismissed the complaint.

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

Simons, J.

(concurring). I concur with the result of the majority and with much the Chief Judge has said. I write separately only to emphasize a separate point urged by plaintiff, that defendants may not be entitled to the presumption that they acted on probable cause although they acted pursuant to a warrant and a finding of probable cause at the preliminary hearing. Quite apart from plaintiff’s claim that the police investigation was negligent or inadequate, which is fully answered by the Chief Judge’s analysis applying Colon v City of New York (60 NY2d 78) and Lee v City of Mount Vernon (49 NY2d 1041), is the claim that the police deliberately withheld exculpatory information from the Magistrate. He claims that defendants were not entitled to the benefit of judicial findings of probable cause because the findings were based upon incomplete disclosure of relevant facts known to the police; that because the police filtered out exculpatory information before presenting their case to the Magistrate, they, in effect, made their own "finding” of probable cause.

As the Chief Judge has stated, the police are not obligated, at this early stage in preparing a case, to reveal everything they know to the Magistrate; they may not have had the opportunity to fully develop or investigate all the information at their disposal and much of it may be unreliable. But there is much to be said for a rule which inhibits the police from distorting or intentionally withholding significant adverse information from the Magistrate when they seek a determination of probable cause and the presumption should attach to a judicial determination only so long as the police have not affirmatively misrepresented the evidence or kept back evidence which could have affected the result (see, Hopkinson v Lehigh Val. R. R. Co., 249 NY 296, 300; see also, Boose v City of Rochester, 71 AD2d 59, 69; Ross v Village of Wappingers Falls, 62 AD2d 892, 896).

While the evidence the police possessed in this case contained serious conflicts and discrepancies, and some which could have been considered exculpatory was not submitted to the Magistrate at the warrant application or at the preliminary hearing, it is clear, in view of the strong identification by the complainant and the abundant evidence corroborating her story, that the result would not have been different if the police had disclosed the withheld information. I, therefore, concur in the result reached by the majority.

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

Order affirmed, with costs.


author: Alexander, J. Chief Judge Wachtler

text:
    In the Matter of State Farm Mutual Automobile Insurance Company, Respondent, v Anthony Amato et al., Respondents, and City of New York et al., Appellants. (Proceeding No. 1.) In the Matter of State Farm Mutual Automobile Insurance Company, Respondent, v John Rutherford et al., Appellants, and Aetna Casualty and Surety Company et al., Respondents. (Proceeding No. 2.)
    Argued June 1, 1988;
    decided July 12, 1988

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (William Thom, Lori Finsterwald and Stephen J. McGrath of counsel), for City of New York and another, appellants.
    The explicit exemption of police vehicles from uninsured motorist coverage pursuant to section 5202 (a) of the Insurance Law precludes arbitration against the City of New York by a police officer injured in a police vehicle by an uninsured motorist. (Matter of City of New York v Collins, 126 Misc 2d 377; Matter of Richter v Motor Vehicle Acc. Indem. Corp., 59 Misc 2d 374; Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 66 NY2d 298; Matter of Country-Wide Ins. Co. [Manning], 96 AD2d 471, 62 NY2d 748; Nassau Ins. Co. v Guarascio, 82 AD2d 505; Matter of Tanner [City of New York], 67 AD2d 863; Matter of Shumate [MVAIC], 50 Misc 2d 31.)

      Sally Weinraub and Bert W. Subin for John Rutherford and another, appellants.
    Police vehicles are specifically exempted by statute from affording uninsured motorist coverage, and are uninsured motor vehicles. (Matter of Tanner [City of New York], 67 AD2d 863; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Matter of City of New York v Collins, 126 Misc 2d 377.)

      Bertram Herman for State Farm Mutual Automobile Insuranee Company, respondent.
    I. The City of New York, the owner of the vehicle operated by Amato, is required to maintain primary uninsured motorist protection to Amato. (Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Matter of New York City Tr. Auth. [Thom], 52 NY2d 1032; Matter of Country-Wide Ins. Co. [Manning], 62 NY2d 748; Perkins v Merchants Mut. Ins. Co., 41 NY2d 394; Matter of Globe Indem. Co. [Estate of Baker], 22 AD2d 658; Cohen v Liberty Mut. Ins. Co., 35 AD2d 719; Matter of Travelers Ins. Co. v Case, 36 AD2d 833; Matter of Public Serv. Mut. Ins. Co. v Cross, 38 AD2d 930; State Farm Mut. Auto. Ins. Co. v Drysdale, 81 AD2d 1011.) II. There is no statutory or contractual exclusion which denies occupants of police vehicles from receiving uninsured motorist benefits when the occupants of such vehicles receive injuries as a result of the negligent operation of uninsured motor vehicles. III. Decisions of lower courts on this issue are not binding upon this court. Matter of City of New York v Collins, 126 Misc 2d 377.)

      Michael Majewski and Glen H. Shore for Aetna Casualty & Surety Company, respondent.
    The factual determination that Aetna did not insure McCary’s vehicle should not be disturbed on appeal because this court’s scope of review is limited to questions of law. (People v Belge, 41 NY2d 60.)
   OPINION OF THE COURT

Alexander, J.

The issue presented on this appeal is whether the City of New York (City), as an unregulated self-insurer, is statutorily required to provide uninsured motorist coverage to two of its police officers who were injured when their police vehicles were struck by uninsured motor vehicles. We hold that there is no such statutory obligation.

I.

Proceeding No. 1

On April 26, 1982, New York City Police Officer, Anthony Amato, was injured when his police scooter was struck by a taxi cab. Amato was advised by the insurer of the offending vehicle, Wausau Insurance Co., that the taxi had been stolen at the time of the accident, and that Wausau therefore would not provide insurance coverage. The City also denied Amato coverage, explaining that it was not statutorily required to provide such protection, and suggesting that Amato pursue his claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC). MVAIC, however, rejected Amato’s claim as well, presumably because Amato already had uninsured motorist coverage pursuant to an automobile insurance policy issued by petitioner, State Farm Mutual Automobile Insurance Co. (State Farm), covering his personal automobile. Amato then filed an uninsured motorist claim with State Farm pursuant to the uninsured motorist indorsement contained in his policy. After that claim also was denied, Amato demanded arbitration of his claim from State Farm pursuant to the arbitration clause in his policy.

State Farm instituted a CPLR article 75 proceeding to stay arbitration, contending in its petition that the City had the primary obligation to "afford uninsured motorist coverage on its vehicles”. Special Term temporarily stayed arbitration pending a hearing and granted State Farm’s request to join the City, Wausau, the police department, and the owner of the taxi as additional respondents. After a hearing, Special Term determined that State Farm, rather than the City, was required to provide uninsured motorist coverage, denied the petition to permanently stay arbitration, and directed State Farm to arbitrate the matter with Amato.

Proceeding No. 2

On February 5, 1984, New York City Police Officer, John Rutherford, was injured when a car struck his police vehicle in the rear while it was stopped at a traffic light. Although the car’s registration indicated Aetna Casualty & Surety Co. as insurer, Aetna denied Rutherford’s claim, as well as his wife’s derivative claim, contending that a search of its files had not revealed any policy covering the offending vehicle. Rutherford filed a claim with MVAIC, but that claim was denied because Rutherford already had uninsured motorist protection under an insurance policy issued by State Farm covering his personal automobile. Rutherford filed a claim with State Farm pursuant to the uninsured motorist indorsement contained in his policy, but State Farm rejected the claim, contending that the City was the primary insurer of its police vehicle and thus was primarily liable for the payment of uninsured motorist benefits. Rutherford then demanded that State Farm arbitrate his uninsured motorist claim pursuant to the arbitration clause in his policy.

As it had done in respect to Amato’s claim, State Farm instituted a proceeding to stay arbitration, again contending that the City, as "owner of the host vehicle”, had the primary obligation to provide uninsured motorist coverage to Rutherford. Special Term again temporarily stayed arbitration pending a hearing, granted State Farm’s request to join the City, the police department, Aetna, and the owner of the offending vehicle as parties and, after a hearing, held that State Farm, rather than the City, had the primary obligation to provide uninsured motorist coverage. The court denied State Farm’s petition, and directed it to proceed to arbitration with Rutherford.

On State Farm’s appeal from both adverse judgments, the Appellate Division, in a single order, reversed the judgments in each proceeding and granted State Farm’s petitions to stay arbitration. Citing our decision in Matter of Country-Wide Ins. Co. (Manning) (62 NY2d 748, affg for reasons stated 96 AD2d 471), the court held that the City had the primary obligation to provide uninsured motorist coverage to Amato and Rutherford. Both proceedings are before this court pursuant to leave granted by the Appellate Division on the following certified question: "Was the order of this court dated June 29, 1987, properly made?” For the reasons that follow, we now reverse.

II.

We have previously noted that the "Legislature has specifically declared its grave concern that motorists who use the public highways be financially responsible to ensure that innocent victims of motor vehicle accidents be recompensed for their injuries and losses” (Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818, 819). Articles 6 and 7 of the Vehicle and Traffic Law require motorists to provide proof of financial security as a condition of motor vehicle registration and also authorize the Commissioner of Motor Vehicles to suspend or revoke the license or registration of any person for whom such proof is not forthcoming (Vehicle and Traffic Law § 310 et seq.; § 330 et seq.). Moreover, by virtue of Insurance Law § 3420 (f), "where an accident is caused by an unidentified vehicle or where the insurer has disclaimed coverage, a victim will still be able to recover for losses sustained” (Matter of Allstate Ins. Co. v Shaw, 52 NY2d, at 819, supra [discussing Insurance Law former § 167 (2-a)]). That statute requires that uninsured motorist protection be provided in all policies insuring against liability "for bodily injury or death * * * arising out of the ownership, maintenance and use of a motor vehicle by the insured” (Insurance Law § 3420 [f] [emphasis added]). Here, Amato and Rutherford each hold an insurance policy issued by State Farm providing uninsured motorist coverage. The City contends that State Farm is obligated to provide both police officers with uninsured motorist benefits pursuant to these policies, and that the City has no such obligation because police vehicles are specifically exempted from the requirements of Insurance Law § 3420 (f).

In granting petitioner’s requests to stay the arbitration proceedings, the Appellate Division relied on our holding in Country-Wide. There, an employee of the New York City Department of Transportation (DOT) had been involved in an accident with an uninsured automobile while the employee was driving a DOT vehicle. The employee filed a claim with Country-Wide, her personal insurer, but Country-Wide refused to pay her claim and the employee demanded arbitration. In the circumstances of that case, the Appellate Division held that "any arbitration agreement contained in Country-Wide’s insurance policy issued to [the employee] is subordinate to DOT’s primary self-insurance covering [the employee]” (Matter of Country-Wide Ins. Co. [Manning], 96 AD2d, at 472, supra). The court noted that "[insurance against injury caused by an uninsured motorist is required in this State as a matter of public policy” and that "[w]hereas DOT may be authorized to be a self-insurer instead of procuring a policy from an insurer (Vehicle and Traffic Law, § 370), such permission to 'self-insure’ was not intended by the Legislature as a diminution of the uninsured motorist protection afforded to users of insured vehicles or other persons” (Matter of Country-Wide Ins. Co. [Manning], 96 AD2d, at 472, supra; see, Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818, supra [car rental company obligated to provide uninsured motorist coverage notwithstanding status as self-insurer]; Matter of New York City Tr. Auth. [Thom], 52 NY2d 1032 [New York City Transit Authority obligated to provide uninsured motorist coverage notwithstanding status as self-insurer]).

Although, in Country-Wide, we adopted the reasoning of the Appellate Division that self-insurers generally have the same statutory responsibility as other insurers to provide uninsured motorist coverage, that decision does not support the imposition of liability against the City in either of these proceedings. Under Insurance Law § 3420 (e), automobile liability insurance need only be issued on a "motor vehicle” as it is "defined in section three hundred eighty-eight of the vehicle and traffic law”. Unlike the DOT vehicle in Country-Wide, however, a police vehicle is specifically excluded from the definition of "motor vehicle” as it appears in Vehicle and Traffic Law § 388 (2). Thus, there is no statutory obligation to insure police vehicles against liability for death or bodily injury. Although this exclusionary language is not repeated in the uninsured motorist provision of the Insurance Law (Insurance Law § 3420 [f]), it would be illogical to assume that, while there is no legal obligation to insure police vehicles for death or bodily injury in the first instance, the City is nevertheless required to provide uninsured motorist coverage for its police vehicles. Thus, recognizing the need to interpret the statutes relating to uninsured motorist coverage as a whole and in a way consistent with their legislative purpose (see, Matter of Allstate Ins. Co. v Shaw, 52 NY2d, at 820, supra; McKinney’s Cons Laws of NY, Book 1, Statutes § 97), we hold that Insurance Law § 3420 (f) — providing that all "motor vehicle” insurance policies must contain uninsured motorist coverage — has no application to police vehicles.

Accordingly, the order of the Appellate Division should be reversed, and petitioner’s applications for stays of arbitration denied. The certified question is not answered as unnecessary.

Chief Judge Wachtler

(dissenting). I would affirm the order of the Appellate Division.

The Appellate Division correctly held that a municipality acting as a self-insurer must provide uninsured motorists benefits for injuries occurring in municipal vehicles, including police cars. The Legislature has not expressly provided any exemption for police vehicles from the obligation imposed by this statute and no explanation is given by the majority as to why the Legislature would want to create such an anomalous exception. Instead, the majority relies on a "logical” reading of two unrelated statutes concluding that if police vehicles need not be insured, those owning and operating them need not provide uninsured motorists’ benefits. This approach violates the literal wording of the statutes as well as the legislative intent, produces an illogical result, and ignores the fact that the exception impliedly created is completely arbitrary because it does not appear to serve any rational purpose.

A literal interpretation of the statutes, exempting governmental entities from the requirement to provide insurance or proof of financial responsibility for death or injury caused by police vehicles (Vehicle and Traffic Law arts 6, 7; Insurance Law § 3420 [e]) but not exempting them from providing uninsured motorist protection (Insurance Law § 3420 [f]), is not at all illogical and serves to carry out the legislative intent.

The financial responsibility provisions require the owner of a motor vehicle to obtain insurance or prove financial ability to serve as a self-insurer for injuries caused by the operation of the vehicle. Exempting police vehicles from this law does not relieve governmental entities from legal responsibility for injuries caused by the operation of police vehicles. It simply relieves them of the obligation to purchase liability insurance or prove financial ability to cover judgments resulting from such injuries. In granting this exemption the Legislature has obviously determined that any branch of the government should be financially capable of paying for injuries caused by police vehicles and need not prove or demonstrate that fact (Vehicle and Traffic Law arts 6, 7; see also, Insurance Law § 5201 [b]; § 5202 [a] [exempting from the MVAIC Act injuries "caused by” police vehicles]).

The uninsured motorist provision, however, requires an insurer of a motor vehicle to pay for injuries sustained by the insured or any occupant of the vehicle, caused by another uninsured motor vehicle. The purpose of this statute is to afford protection to those injured by uninsured and financially irresponsible motorists. This type of legislation was expressly designed to fill a gap in the law by imposing liability on the insurer where none would exist at common law (see, 1958 NY Legis Ann, at 244, 299, 436, 473). It applies to self-insurers (Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818), including municipalities operating municipal vehicles as self-insurers (Matter of Country-Wide Ins. Co. [Manning], 62 NY2d 748; Matter of New York City Tr. Auth. [Thom], 52 NY2d 1032). Exempting police vehicles from this law would do more than relieve them and the State from the unnecessary inconvenience of determining in advance their financial ability to pay damages for injuries sustained through the operation of police vehicles. It would, in fact, relieve governmental entities from uninsured motorist liability as owners or self-insurers for injuries sustained by employees or other occupants in such vehicles caused by a collision with another, uninsured vehicle. The Legislature has not expressly exempted police vehicles from this particular statutory liability (compare, Vehicle and Traffic Law § 388 [1], [2], making owners vicariously liable for negligent operation of their vehicles, but specifically exempting police vehicles). Reading this kind of exemption into the statute serves no apparent purpose.

In short, it appears that a statute designed only to eliminate the need to prove financial ability to meet legal obligations has been misapplied to extinguish one of those obligations.

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

Order reversed, with costs, and petitioner’s applications for stays of arbitration denied. Certified question not answered as unnecessary.

      . The statutory scheme also protects those who are not beneficiaries of an automobile insurance policy. The uninsured victims of uninsured motorists may file a claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC) for "death or bodily injury, arising out of a motor vehicle accident occurring within this state” (Insurance Law § 5208 [a] [1]). Here, of course, both Amato and Rutherford are beneficiaries of the uninsured motorist indorsement contained in their respective policies with State Farm, and are thus ineligible to file a claim with the MVAIC (Insurance Law § 5202 [b]; § 5208).

      . Additionally, we note that police vehicles are not "motor vehicles” subject to the financial security and responsibility requirements of the Vehicle and Traffic Law (Vehicle and Traffic Law arts 6, 7); of course, this statutory exemption is not, as the dissent would seem to suggest, the basis for the majority holding in this case, which rests rather on the exemption for police vehicles found under Vehicle and Traffic Law § 388 (2). Moreover, although the uninsured occupant of a police vehicle may file a claim with the MVAIC for injuries sustained in an accident caused by an uninsured motor vehicle, police vehicles are exempted from the provisions of the MVAIC statute to the extent that otherwise eligible claimants are barred from filing a claim for injuries caused by the negligent operation of a police vehicle (Insurance Law § 5202 (a), (b); § 5208; see, Matter of Downey [MVAIC], 43 AD2d 168,175-176; Matter of Fuscaldo [MVAIC] 24 AD2d 744).
      By contrast, police vehicles are expressly included under the "no-fault” provisions of the Insurance Law, requiring the City to provide first-party benefits for loss arising out of the use or operation of police vehicles (Vehicle and Traffic Law § 321 [2]; Insurance Law § 5102 [f]; § 5103). Thus, contrary to the view expressed by the dissent, the statutory exemption for police vehicles under the uninsured motorist statute does not relieve governmental entities from liability for injuries sustained in police vehicles that are caused by uninsured motorists. Indeed, the specific inclusion of police vehicles under the "no-fault” provisions is evidence of the Legislature’s intent to be selective as to the kinds of insurance requirements that should be imposed on these vehicles. Imposition of any additional municipal uninsured motorist liability, therefore, is a matter of policy and choice for the Legislature.


author: Kaye, J. Titone, J.

text:
    The People of the State of New York, Respondent, v Carl Collier, Appellant.
    Argued June 1, 1988;
    decided July 6, 1988

      POINTS OF COUNSEL

      Spiros A. Tsimbinos and William, S. Kohn for appellant.
    Current provisions of the Criminal Procedure Law clearly require that a minimum quorum of 16 jurors who heard all the evidence is required in order for Grand Jury action to be valid.

      Elizabeth Holtzman, District Attorney (Peter A. Weinstein, Barbara D. Underwood and Moira E. Casey of counsel), for respondent.
    The indictment against defendant was valid because it was voted by 12 grand jurors who heard all of the evidence in the case, and a quorum of 16 grand jurors was present at all times. (People v Brinkman, 309 NY 974; People v Saperstein, 2 NY2d 210, 353 US 946; People v Salerno, 3 NY2d 175; People v Infante, 124 AD2d 86; Dawson v People, 25 NY 399; People v Herrmans, 69 Misc 303; People v Gelfand, 131 Misc 2d 268; People v Elmhurst Milk & Cream Co., 116 Misc 2d 140; People v Ellwanger, 99 Misc 2d 807; People v Colebut, 86 Misc 2d 729.)
   OPINION OF THE COURT

Kaye, J.

A vote to indict by 12 jurors, each of whom has heard all the critical and essential evidence presented and the charge, satisfies statutory requirements for a valid indictment. The full 16-juror quorum need not deliberate and vote.

Defendant was arrested on January 20, 1984. Allegedly, he and five accomplices, armed with guns and knives, had robbed the cashier of a Kansas Fried Chicken store, only to encounter several police officers as they fled from the restaurant with the proceeds.

Evidence in the case was presented to the Grand Jury on four days: January 26, 27, 30 and 31. On February 1, 1984, the grand jurors were charged on the law. During the charge, the jurors were instructed that they could not vote unless they had heard all the evidence presented in the case. The prosecutor left the jurors to their deliberations, but was called back after a poll taken by the foreperson revealed that only 12 jurors had heard all the evidence. In response to the foreperson’s question about whether the jury could still deliberate, the prosecutor responded that so long as 12 members had heard all the evidence, a vote could be taken. One of the jurors stated that certain personal "reservations” might make it impossible to deliberate, and asked whether the deliberations could be postponed until more jurors who had heard all the evidence were present, so that the juror’s reservations would not force the Grand Jury to vote no true bill. After some discussion, however, the jurors decided to deliberate, and ultimately voted the indictment.

Defendant moved to dismiss the indictment for insufficient evidence and unspecified defects in the proceedings, and the minutes were given to the trial court for in camera inspection. The trial court, sua sponte, dismissed the indictment, concluding that under CPL 210.35 (2) the proceedings were defective because 16 jurors who had heard all the critical evidence were not available to participate in the deliberations. The same Judge weeks earlier had dismissed the indictment in an unrelated case, People v Infante, on the same ground. The Appellate Division reversed and reinstated the indictment, quoting from its earlier decision in People v Infante (124 AD2d 86), where it held that so long as at least 12 of the grand jurors who voted to indict heard all the essential and critical evidence, the Grand Jury could return an indictment. We agree, and therefore affirm the Appellate Division order.

CPL 190.25 (1) provides that "proceedings of a grand jury are not valid unless at least sixteen of its members are present”, and that the finding of an indictment "requires the concurrence of at least twelve members thereof’; CPL 210.35 (2) specifies that a Grand Jury proceeding is defective when conducted before fewer than 16 grand jurors. In these sections the trial court perceived a legislative intent that the full quorum of 16 jurors be available to participate in the deliberations and vote, reasoning that the Legislature could not have intended as many as four jurors to sit by as passive observers. Thus, in the trial court’s view, a valid indictment requires a minimum of 16 of the same grand jurors present on each occasion when critical evidence is presented in an individual defendant’s "proceeding,” and present at the time of the charge and deliberations. Defendant urges that this interpretation of the Criminal Procedure Law is correct, and that People v Brinkman (309 NY 974) and People v Saperstein (2 NY2d 210, cert denied 353 US 946) are not controlling because they were decided under the predecessor statute, the Code of Criminal Procedure. We conclude, however, that the language changes from the relevant sections of the Code of Criminal Procedure to the Criminal Procedure Law effected no material alteration, and that Brinkman and Saperstein still govern the issue in this case.

The Code of Criminal Procedure, enacted in 1881, contained a quorum requirement and a separate voting requirement. Section 224 provided that the "grand jury must consist of not less than sixteen and not more than twenty-three persons, and the presence of at least sixteen is necessary for the transaction of any business.” Section 268 separately specified that an "indictment cannot be found without the concurrence of at least twelve grand jurors.”

In People v Brinkman (309 NY 974, supra) this court affirmed the Appellate Division’s reinstatement of an indictment that had been dismissed on the ground that fewer than 12 of the 16 jurors who voted the indictment had heard certain evidence. We noted that the evidence at issue was "merely repetitious,” and held that when at least 12 members of the Grand Jury who voted to indict heard all the "essential and critical evidence,” the Grand Jury was empowered to return an indictment. (Id., at 975-976.) The plain implication of this holding is that there was no requirement that the full quorum, or more than 12 grand jurors, have heard all the essential evidence before a vote could be taken.

The implicit conclusion of Brinkman was made explicit in People v Saperstein (2 NY2d 210, cert denied 353 US 946, supra). In Saperstein, the Grand Jury heard evidence over a number of days. Thirteen of the grand jurors who voted for the indictment were present on three of those days, but fewer than 12 of those 13 were present on two other days when the Grand Jury heard evidence. Concluding that the testimony given on the latter two days was not material, this court upheld the indictment on the ground that 13 of the grand jurors heard all the critical evidence: the "rule of the Brink-man case * * * is that an indictment is good despite the absence of certain grand jurors on various days when testimony is heard, so long as 'at least twelve of the Grand Jurors, who voted to indict, heard all the essential and critical evidence’ ” (People v Saperstein, supra, at 218; see also, People v Salerno, 3 NY2d 175, 178). Since only 13 of the jurors in Saperstein had heard all of the essential evidence, obviously jurors who had not heard that evidence were nonetheless counted toward the quorum requirement, although such jurors would not satisfy the voting requirement.

Thus, it is clear that prior to the passage of the Criminal Procedure Law, the quorum and voting requirements were separate and different; a valid indictment required the concurring vote of at least 12 jurors who had heard the essential evidence, but jurors who had not been present during that testimony could satisfy the quorum requirement.

The Criminal Procedure Law, adopted in 1970, did not change these requirements.

CPL 190.25, the statute that now governs the general proceedings and operation of the Grand Jury, provides in subdivision (1) that: "Proceedings of a grand jury are not valid unless at least 16 of its members are present. The finding of an indictment, a direction to file a prosecutor’s information, a decision to submit a grand jury report and every other affirmative official action or decision requires the concurrence of at least 12 members thereof.” This section thus combines the separate provisions of sections 224 and 268 of the Code of Criminal Procedure. The language is hardly — and, we conclude, not materially — different. Indeed, had the Legislature intended to change such a basic provision of the Criminal Procedure Law after nearly a century, surely it would have said so. Neither the words of the statute nor its history reveal any intention to rewrite the law in this respect.

Supporting this conclusion, the Staff Comments to the proposed revision state that the section was derived — without change — from sections 224 and 268 of the 1881 Code of Criminal Procedure (see, Staff Comments of Temporary Commission on Revision of Penal Law and Criminal Code [Bartlett Commission], comment to Proposed Criminal Procedure Law § 95.25 [now CPL 190.25]; see also, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 120, 125). The original Practice Commentary, similarly, notes that the only new part of the statute was the requirement that at least 12 grand jurors concur for official actions other than the finding of an indictment or filing of a report, which had not been specified in the Criminal Code. (See, Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 190.25 [1971].)

On its face, CPL 190.25 (1) imposes no requirement that 16 Grand Jury members who must be "present” before official business is transacted also be able to participate in deliberations and voting. The fact that the quorum and voting requirements, formerly dealt with in two separate provisions of the Code of Criminal Procedure, are now combined in a single subdivision adds nothing to the merits of defendant’s claim. It merely reflects an organizational change. The separation of the two requirements in the Code of Criminal Procedure was the result of its more detailed chronological orientation, so that the formation, powers and duties of the Grand Jury were treated in the section on preindictment proceedings and the indictment itself in a later title. The Criminal Procedure Law now treats the Grand Jury and all of its proceedings in a single article. The significance defendant reads into this simple organizational transposition is unsupportable.

Nor is defendant’s claim buttressed by the minor changes in language: the Criminal Procedure Law uses "proceedings” for which a quorum is required rather than "the transaction of any business” (Code Crim Pro § 224), and requires the concurrence of 12 members "thereof’ where the Code of Criminal Procedure had stated only that an indictment could not be found without the concurrence of at least 12 grand jurors (§ 268). Although the language is slightly altered, the meaning of the plain English is still no broader than the rule enunciated in Brinkman and Saperstein.

In sum, the Legislature gave no sign whatsoever that it intended to impose a new requirement that altered long-established law; the statute itself does not on its face have that effect; and the Staff Comments indicate a contrary view. We decline, under those circumstances, to strain to reach the result for which defendant argues.

Furthermore, we cannot agree with defendant’s claim that unless his reading of the statute is adopted the quorum requirement is rendered meaningless, as it adds only four idle observers. Even if they may be barred from participating in deliberations or voting, the nondeliberating members of the quorum may well contribute to the Grand Jury’s traditional function of furnishing protection against malicious and unfounded prosecution, or being alert to "fraud and improper practices” in the Grand Jury (see, People v Herrmans, 69 Misc 303,. 308). In addition, the rule requiring the attendance of a minimum of 16 grand jurors rather than the common-law minimum of 12 to be present at all Grand Jury proceedings obviously has the prophylactic effect of substantially increasing the probability that the requisite 12 jurors will be ultimately available to deliberate and vote when it is time to do so, by providing a margin for the inevitable absence of some jurors. Finally, we note that the protection accorded to defendant by the requirement of indictment by the Grand Jury was not in any significant respect diminished as a result of the fact that fewer jurors than a quorum of 16 had heard all the essential and critical evidence. Had but a single juror of the 12 who heard the evidence been unconvinced of its sufficiency, no true bill could have been returned. That possibility apparently approached reality in this case. If more than 12 jurors had heard all the evidence, the "reservations” of a juror would have been inconsequential.

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

Titone, J.

(concurring). The court’s holding — that the 16-member quorum required by CPL 190.25 (1) and 210.35 (2) need not consist entirely of grand jurors who have heard all of the critical evidence — creates a serious potential for abuse of the Grand Jury system. While I cannot fault the majority’s writing, I am deeply troubled by the potential consequences of its holding. Accordingly, I write separately, both to explain my concerns and, hopefully, to prompt the Legislature to take a closer look at the manner in which the quorum rule has been construed.

Under CPL 190.25 (1) and 210.35 (2), a quorum of 16 Grand Jury members is required for the conduct of Grand Jury proceedings. The majority does not read these provisions as requiring that all 16 quorum members be present to hear all of the critical evidence, and, given the provisions’ judicial and legislative history, I cannot disagree. As is clear from the analyses in People v Brinkman (309 NY 974) and People v Saperstein (2 NY2d 210, cert denied 353 US 946), which were effectively incorporated when the Criminal Procedure Law was enacted, the statutory requirement that the grand jurors hear all of the essential evidence pertains only to the 12 who ultimately vote to indict or issue a report.

The problem is, of course, that the rule gives rise to a possibility that as many as four of the grand jurors whose presence is necessary for any official action will not have heard all of the evidence. Although the majority asserts that it is not reaching the question whether such grand jurors may participate in deliberations (majority opn, at 305, n 2), it is plain that a choice must be made. Either these grand jurors must sit by as mute, passive observers or they must be expected to speak.

I must assume that the Legislature did not intend the former, since that would render the requirement of a quorum of 16, rather than 12, meaningless. It seems far more likely that some level of participation by all quorum members was contemplated. Such participation, however, could lead to undesirable consequences. Jurors who have not heard all of the evidence could well have a substantial influence on the decision to indict, issue a report or take any other official action. At the very least, the result would be uninformed decision-making. Of even greater concern is the potential for manipulation. In the worst possible scenario, a "flying squad” of four especially persuasive grand jurors who heard only the most damaging evidence could influence the 12 jurors who, after having heard all the evidence, would not have returned an indictment but for the influence of those four.

In short, the existing scheme, in which a quorum of 16 is required regardless of whether all 16 may ultimately vote, is troublesome from a number of perspectives. Accordingly, while existing law seems to lead inevitably to the majority’s conclusion, further legislative study, and perhaps even revision of the existing statutes, seems appropriate.

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

Order affirmed.

      . The Bartlett Commission comprehensively studied the entire body of law and was unquestionably aware of Brinkman and Saperstein. Surely their work would have reflected such a fundamental change had it been intended.

      . We do not reach the issue whether — in addition to the necessary 12— jurors who have not heard all the essential and critical evidence can also participate in deliberations or vote. That issue is not presented by this case.

      . The grand jurors in this case were told that only those who had heard all of the evidence could vote for an indictment, but they were not given a similar instruction with respect to participation in deliberations. Accordingly, it would appear that the issue is at least implicitly raised by this case.

      . Although the majority suggests that "nondeliberating members of the quorum may well contribute to the Grand Jury’s traditional function of furnishing protection against malicious and unfounded prosecution, or being alert to 'fraud and improper practices’ ” (majority opn, at 303), it is difficult to see how these important functions could seriously be performed by individuals who have not been present during the taking of some of the critical evidence. Similarly, the addition of 4 grand jurors to the 12 necessary to issue an indictment will "increas[e] the probability that the requisite 12 jurors will be available to deliberate and vote” (id.) only if the additional 4 have, in fact, heard all of the evidence.

      . It remains unclear whether the group of 12 grand jurors whose concurrence is required for other "official actions” (see, CPL 190.25 [1]; Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 190.25, at 215), such as the issuance of subpoenas, must consist solely of those who have heard all of the evidence relevant to the particular action or may instead include one or more quorum members who have not been present at all critical times. In view of the complexity of that problem, its resolution is best left for another day. In any event, regardless of the ultimate resolution of that question, there remains the problem of grand jurors who have not heard all of the pertinent evidence participating in the discussions leading up to the final vote.