author: Jones, J.

text:
    In the Matter of Paul Chambers, Appellant, v Board of Education of Lisbon Central School District, Respondent.
    Argued April 25, 1979;
    decided June 7, 1979

      POINTS OF COUNSEL

      J. Michael Eadry and Bernard F. Ashe for appellant.
    I. The determination of the court below in this matter is directly contrary to prior determinations of other Appellate Divisions and of this court. (Matter of Steele v Board of Educ., 53 AD2d 674; Chambers v Board of Educ., 58 AD2d 961; Matter of Van Heusen v Board of Educ., 26 AD2d 721; Matter of Amos v Union Free School Dist. No. 9, 47 AD2d 711; Matter of Amos v Board of Educ., 54 AD2d 297.) II. There is not substantial evidence to support the findings of respondent board. III. Petitioner Chambers was entitled to the benefit of chapter 82 of the Laws of 1977 for his hearing on October 27, 1977. (Town of Amherst v County of Erie, 236 App Div 58, 260 NY 361; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Clayton v Clement, 33 NY2d 386; Matter of Kahn [National City Bank], 284 NY 515; Lazarus v Metropolitan El. Ry. Co., 145 NY 581.)

      Preston C. Carlisle for respondent.
    I. The determination of the Lisbon Central School Board of Education which was confirmed by the court below, is not contrary to prior determinations of other Appellate Divisions or this court. (Matter of Young v Board of Educ., 35 NY2d 31; Matter of Abrams v

      Ambach, 43 AD2d 883; Matter of Siniapkin v Nyquist, 68 Misc 2d 214; Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Steele v Board of Educ., 53 AD2d 674, 42 NY2d 840.) II. The board of education’s determination was supported by substantial evidence. III. Petitioner Chambers’ supplementary hearing was properly held under section 3020-a of the Education Law as in effect prior to the enactment of chapter 82 of the Laws of 1977. (Matter of Berkovitz v Arbib & Houlberg, 230 NY 261; Jacobus v Colgate, 217 NY 235; Gallewski v Hentz & Co., 276 App Div 219, 301 NY 164; Matter of Clayton v Clement, 33 NY2d 386; Matter of Meliti v Board of Educ., 64 AD2d 631; Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279.)
   OPINION OF THE COURT

Jones, J.

When the position of a tenured teacher is abolished and the teacher can be retained on a regular teaching schedule only by assignment to teach a course outside the teacher’s area of certification, the board of education is not required to arrange such a schedule, although permitted under regulations of the Commissioner of Education, when it demonstrates that such a schedule is not educationally or financially feasible.

Permanently certified to teach Latin and French, in 1963 petitioner was appointed as a full-time teacher of those subjects by the Board of Education of the Lisbon Central School District. He had acquired tenure in the secondary area of instruction by April 13, 1976 when the board, which had discontinued Latin classes some years before because of low enrollment, reduced to three the number of classes in French that would be offered after the end of the 1975-1976 school year. Petitioner declined to accept the part-time French teaching position which resulted from this reduction in classes, and efforts by the board to continue him in a full-time position by sharing his services with another school district were unsuccessful because no district could be found that needed a part-time French teacher.

When petitioner rejected part-time employment and asserted a right to remain as a full-time teacher in the Lisbon School District, the board employed a new, part-time French teacher to teach the three classes in that subject and assigned petitioner to a full-time position in mathematics (the position held by the least tenured teacher in the secondary tenure area) pursuant to the mandate of section 2510 of the Education Law. Petitioner was unable to demonstrate that he was certified to teach mathematics, however; consequently, on September 8, 1976, the board found that there was probable cause for a charge against him that he had failed to maintain certification as required by the Education Law and, in particular, that he was not certified to teach secondary mathematics. After a hearing held at petitioner’s request on November 4,

1976 before a panel appointed pursuant to section 3020-a of the Education Law the panel found that the charge had not been sustained and made recommendations concerning petitioner’s continued employment in the district. Thereafter, on December 15, 1976, the board rejected the panel’s findings and recommendations, found petitioner guilty of the charge and dismissed him.

The teacher thereupon commenced this article 78 proceeding to challenge the board’s dismissal. After the proceeding had been transferred to it in accordance with CPLR 7804 (subd [g]), on August 18, 1977 the Appellate Division, citing Matter of Amos v Board of Educ. (54 AD2d 297) and Matter of Steele v Board of Educ. (53 AD2d 674, affd 42 NY2d 840) and concluding that the board had an obligation to explore the feasibility of adjusting teaching schedules to protect petitioner’s tenure rights, remitted the matter "for further proof on the feasibility of adjusting the schedules and for findings on that issue by the board” (62 AD2d 109, 110). The Appellate Division declined to direct that the further proceedings be conducted under the amendment of section 3020-a of the Education Law which had become effective April 15, 1977 (L 1977, ch 82).

The panel that had conducted the prior hearing reconvened on October 28, 1977, took additional proof, and found that the board had not sufficiently explored schedule adjustments looking toward petitioner’s retention. However, on December 27, 1977 the board again rejected the panel’s findings, concluded that it had fulfilled its obligation to consider the feasibility of schedule changes and, with detailed explication, determined that it could not provide full-time teaching employment for petitioner, consistent with an effective educational program and taking cognizance of the financial condition of the school district. On subsequent review by the Appellate Division that court confirmed the board’s determination to discharge the teacher and dismissed the petition. The judgment of the Appellate Division should be affirmed.

Petitioner asserts that, notwithstanding the fact that the only subject he is certified to teach which is still being offered in the school district occupies only enough class periods to require a part-time teacher, the district is obligated to continue him as a full-time teacher. He does not challenge the authority of the school board to make the changes in the foreign language program which have precipitated his dismissal; he however claims a right to have the board readjust class schedules and make class assignments so that he may continue full-time teaching in the school district despite the reduction in the language program. For this contention he relies on our holdings in Matter of Steele v Board of Educ. (42 NY2d 840, supra) and Matter of Amos v Board of Educ. (43 NY2d 706, supra). In each of those cases we held that the school board was obligated to make schedule adjustments to permit continued retention of the teacher. Those cases were significantly different, however, from the present one.

In Steele the petitioner demonstrated that the administration could reshuffle French classes in such a way as to continue her in a full-time French teaching position; all her classes would be within the area of her certification. The outcome of that litigation resulted from the strength, of petitioner’s proof establishing that, through rescheduling, retention of the teacher with assignment to classes within her certification was possible.

In Amos we held that, where there was doubt whether necessary rescheduling of classes to permit continuation within the area of certification could be accomplished, the burden of proof on the issue rested on the board of education, and that on the record in that case the board had not met its burden of showing the impossibility of rescheduling classes so as to permit the petitioner to continue teaching within the area of her certification. By contrast to Steele, the judicial disposition in Amos turned on the insufficiency of the board’s proof, rather than on the strength of the evidence offered by the petitioner.

In the present case — unlike both Steele and Amos — the school board has demonstrated that no rescheduling is possible that would permit retention of petitioner within his certification. The school now offers only three class periods of French a day, and he has declined to accept this part-time teaching assignment.

Petitioner urges, however, that schedules could be rearranged so as to allow him to continue permissible — though not wholly certified — full-time teaching, and poses three conceivable daily assignment patterns: The first consists of three French class periods (within his certification), one class period of either English or Social Studies (not within his area of certification but permissible under the Commissioner of Education’s regulation 8 NYCRR 80.2 [c]), and two study hall periods (not involving any particular area of certification and now covered by existing staff). The second pattern consists of three French class periods and three study hall periods, and the third is composed of six study hall periods. He disclaims any request for serious consideration of the latter two arrangements, by which he would be given what he recognizes is unique treatment, unlike other teachers who are limited to two study hall periods and are assigned to teach four classroom periods.

He contends for the first schedule pattern however, arguing that, inasmuch as the commissioner’s regulation authorizes limited assignment of a teacher outside his certification area (for the equivalent of one class period a day), the board was required to consider the feasibility of the schedule he suggests containing such an assignment. It must be noted that neither Steele nor Amos is precedent for the recognition of any such an obligation; in both those cases the pivotal question was the possibility of continuing the teacher in service entirely within the area of certification. In Steele the teacher succeeded because she showed that such continuation, by rescheduling, was possible; in Amos the teacher succeeded because the school board failed to show that, by rescheduling, such continuation was not possible.

Were we nevertheless, arguendo, to accept petitioner’s contention that the board had an obligation to look beyond the area of certification, the question would then be whether the board has in fact given consideration to a schedule that includes his teaching one class out of certification and has shown justification for declining to retain petitioner on such a schedule. We agree with the Appellate Division that it has done both. The supplemental determination issued by the board on December 27, 1977 manifests that it gave serious attention to the schedule now urged and for legitimate reasons found it unfeasible. There is substantial evidence in the record to support its determination that it would be educationally unsound to assign petitioner to teach either English or Social Studies, subjects in which he has not taught or taken any preparatory work since leaving college in 1962. Indeed, the record shows that with a single exception the board did not have a policy of assigning teachers out of areas of certification, even though such assignments were permissible under State regulation. Similarly, and again for valid educational reasons, all study hall periods had been assigned to existing staff and readjustment of such assignments was therefore not feasible. Additionally, there is evidence to support the board’s conclusion that retention of petitioner on a partially out-of-certification although permissible assignment schedule would be economically unsound, a valid consideration to be taken into account by the board in reaching its decision. Thus, the board has established in this case not only that petitioner cannot be continued within the area of his certification but also that there are valid reasons why he should not otherwise be retained.

It remains only to note that we reject petitioner’s other argument that, because chapter 82 of the Laws of 1977 (modifying the authority of boards of education under section 3020-a of the Education Law and mandating differently comprised hearing panels with enlarged authority) became effective April 15, 1977 prior to the remand by the Appellate Division in this case on August 18, 1977, it was error to remit the case for consideration by the original, prechapter 82 hearing panel. The remand in this instance occurred after the section 3020-a proceeding had been commenced and hearings held and initially completed, was part of a pending proceeding, and was not, therefore, to be characterized as an initial or de novo reference to a hearing panel under the amended section. (Contrast the situation in Matter of Clayton v Clements, 33 NY2d 386, in which, while charges had been filed prior to a change in the Education Law, no hearings had been conducted prior thereto.)

The judgment of the Appellate Division should be affirmed, with costs.

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

Judgment affirmed.

      . The daily schedule of full-time teachers in the district consisted of four classroom periods and two periods of study hall supervision. Part-time teachers taught three class periods a day.

      . The Amos case was subsequently affirmed by our court on November 17, 1977 (43 NY2d 706).

      . In Amos, not unlike the present case, the petitioner offered proof that by rescheduling she could continue to teach on a full-time basis by assignment to teaching French classes (the area of her certification), plus one class out of her certification (permissible under a regulation of the State Education Commissioner [8 NYCRR 80.2 (c)]), plus study halls. As indicated, however, the disposition did not turn on this proof submitted by the petitioner and did not approve the schedule thus suggested as one which could be mandated on the board of education.

      . Because it is not necessary for the disposition of this appeal, we do not reach or consider the rights of petitioner were it to be concluded that no sufficient justification had been shown for failure to continue petitioner as a full-time teacher out of certification but by other assignment permitted by the department of education.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Julian Felder, Appellant. The People of the State of New York, Respondent, v Mayso Tucker, Appellant. The People of the State of New York, Respondent, v Harold E. Wright, Appellant. The People of the State of New York, Respondent, v Nathaniel Davis, Appellant.
    Argued May 2, 1979;
    decided June 7, 1979

      POINTS OF COUNSEL

      Howard B. Comet, Matthew Muraskin and Michael J. Obus for appellant in the first above-entitled action.
    I. The denial of appellant’s right to counsel by the appointment of a layman to represent him requires that the judgment of conviction be vacated. (Argersinger v Hamlin, 407 US 25; Gideon v Wainwright, 372 US 335; People v Koch, 299 NY 378; Turner v American Bar Assn., 407 F Supp 451, affd sub nom. Taylor v Montgomery, 539 F2d 715, affd sub nom. Pilla v American Bar Assn., 542 F2d 56; Johnson v Zerbst, 304 US 458; Glasser v United States, 315 US 60; Betts v Brady, 316 US 455; Hamilton v Alabama, 368 US 52; Pickelsimer v Wainwright, 375 US 2; United States v Tucker, 404 US 443.) II. Appellant was prejudiced by his representation by a layman.

      Denis Dillon, District Attorney (Anthony J. Gírese and William C. Donnino of counsel), for respondent in the first above-entitled action.
    Under the unique circumstances herein, appellant’s representation by a nonattorney was not such a fundamental defect as to require reversal in the absence of any showing of prejudice. (People v Crimmins, 36 NY2d 230; Chapman v California, 386 US 18; Gideon v Wainwright, 372 US 335; Hamilton v Alabama, 368 US 52; White v Maryland, 373 US 59; Faretta v California, 422 US 806; People v Alfani, 227 NY 334; People ex rel. Harrington v Martin, 263 App Div 922, 1025, 288 NY 740, 316 US 678; People v Jugigo, 123 NY 630.)

      Howard B. Comet, Matthew Muraskin and Michael J. Obus for appellant in the second above-entitled action.
    I. The denial of appellant’s right to counsel by the appointment of a layman to represent him requires that the judgment of conviction be vacated. (Argersinger v Hamlin, 407 US 25; Gideon v Wainwright, 372 US 335; People v Koch, 299 NY 378; Turner v American Bar Assn., 407 F Supp 451, affd sub nom. Taylor v Montgomery, 539 F2d 715, affd sub nom. Pilla v American Bar Assn., 542 F2d 56; Johnson v Zerbst, 304 US 458; Glasser v United States, 315 US 60; Betts v Brady, 316 US 455; Hamilton v Alabama, 368 US 52; Pickelsimer v Wainwright, 375 US 2.) II. Appellant was prejudiced by his representation by a layman. (People v Bennet, 39 AD2d 320; People v Martin, 42 AD2d 864; People v Maisonette, 41 AD2d 940; People v Esperto, 40 AD2d 834.)

      Denis Dillon, District Attorney (Anthony J. Gírese and
      William C. Donnino of counsel), for respondent in the second above-entitled action.
    Under the unique circumstances herein, appellant’s representation by a nonattorney was not such a fundamental defect as to require reversal in the absence of any showing of prejudice. (Matter of Board of Educ. v City Council of City of Glen Cove, 29 NY2d 681; People v Lynn, 28 NY2d 196; People v Droz, 39 NY2d 457; People v Bennett, 29 NY2d 462; People v Brown, 7 NY2d 359; People v Tomaselli, 7 NY2d 350.)

      Robin Willcox and Robert Rivers, P. C., for appellant in the third above-entitled action.
    I. Appellant was not represented by counsel within the meaning of the Constitution and was, thus, denied due process of law.. (Argersinger v Hamlin, 407 US 25; People v Alfani, 227 NY 334; Spivak v Sachs, 16 NY2d 163; Jemzura v McCue, 45 AD2d 797; People v Washington, 87 Misc 2d 103; Turner v American Bar Assn., 407 F Supp 451, affd sub nom. Taylor v Montgomery, 539 F2d 715; People v Crimmins, 36 NY2d 230; Gideon v Wainwright, 372 US 335; Powell v Alabama, 287 US 45; Johnson v Zerbst, 304 US 458; Glasser v United States, 315 US 60.) II. Appellant did not waive his constitutional right to counsel. (Turner v American Bar Assn., 407 F Supp 451, affd sub nom. Taylor v Montgomery, 539 F2d 715; Dunn v Eickhoff, 35 NY2d 698.)

      Denis Dillon, District Attorney (Anthony J. Gírese and William C. Donnino of counsel), for respondent in the third above-entitled action.
    Under the unique circumstances herein, appellant’s representation by a nonattorney was not such a fundamental defect as to require reversal in the absence of any showing of prejudice. (People v Droz, 39 NY2d 457; People v Bennett, 29 NY2d 462; People v Brown, 7 NY2d 359; People v Tomaselli, 7 NY2d 350.)

      Stephen J. Singer for appellant in the fourth above-entitled action.
    I. Defendant was denied the effective assistance of counsel as the result of being represented by a nonlawyer. (People v Washington, 87 Misc 2d 103; People v Crimmins, 36 NY2d 230.) II. There was a denial of defendant’s right to confront witnesses against him at the identification hearing. III. Proof of uncharged crimes prejudiced defendant and deprived him of a fair trial. (People v Cook, 42 NY2d 204; People v Schwartzman, 24 NY2d 241; People v Tassiello, 300 NY 425; People v Trybus, 219 NY 18; People v Fiore, 34 NY2d 81; People v Washington, 32 AD2d 605.) IV. Defendant is entitled to a resentencing and to the enforcement of promises made to him by the District Attorney. (Santabello v New York, 404 US 257; People v Brewster, 42 AD2d 542; People v Weintraub, 43 AD2d 746; People v Barner, 39 AD2d 985; People v Maney, 45 AD2d 765.) V. Various errors by the court below deprived defendant of a fair trial.

      John J. Santucci, District Attorney (John T. Wynne, Jr., of counsel), for respondent in the fourth above-entitled action.
    I. The evidence of appellant’s guilt was overwhelming. (People v Mleczko, 298 NY 153; People v Lytton, 257 NY 310.) II. The fact that appellant’s trial counsel was later found not to be a licensed attorney does not automatically mean that appellant was denied the effective assistance of counsel. (People v Washington, 87 Misc 2d 103; People v Tomaselli, 7 NY2d 350; People v Droz, 39 NY2d 457; People ex rel. Harrington v Martin, 263 App Div 922, 288 NY 740, 316 US 678; People v Tucker, 88 Misc 2d 196; People v Crimmins, 36 NY2d 230; Dunn v Eickhoff, 43 AD2d 580, 35 NY2d 698.) III. The testimony concerning crimes not charged in the indictment was properly admitted. (People v Molineux, 168 NY 264; People v Grutz, 212 NY 72; People v Cook, 42 NY2d 204; People v Crimmins, 36 NY2d 230.) IV. Appellant was afforded a fair trial. (People v Rahming, 26 NY2d 411; Manson v Brathwaite, 432 US 98.) V. The sentence imposed by the court below was lawful and proper. (People v Scafuri, 59 AD2d 788; Williams v New York, 337 US 241.)
   OPINION OF THE COURT

Jones, J.

Where a defendant in a criminal proceeding has unwittingly been represented by a layman masquerading as an attorney but in fact not licensed to practice law, his conviction must be set aside without regard to whether he was individually prejudiced by such representation. The right to assistance of counsel, guaranteed by both the Federal and the New York State Constitutions, demands no less.

These four criminal cases reach us in the same procedural context. Each defendant has sought to vacate his conviction pursuant to CPL 440.10 on the ground that he was denied effective assistance of counsel. Their claims stem from the fact that each was represented in his underlying criminal action by one Albert Silver, a person who was not, and had never been, admitted to the Bar of this State or of any other jurisdiction and who had mot completed law school or otherwise satisfied the prerequisites for the practice of law.

Defendant Felder was convicted after a jury trial of robbery in the first degree and grand larceny in the second degree. Silver, though originally retained by Felder, appeared as his assigned counsel during the course of that trial. In unrelated proceedings Silver was also assigned to represent defendant Tucker and he was apparently retained by defendant Wright. These two defendants entered guilty pleas on Silver’s advice— Tucker to criminal sale of a dangerous drug in the third degree; Wright to rape in the third degree — which were the result of Silver’s negotiations with the District Attorney’s office. Finally, defendant Davis, also represented by Silver as assigned counsel, was convicted after a jury trial of arson in the third degree.

On posttrial discovery of Silver’s status as an imposter each defendant moved to set aside his conviction on the ground that representation by a person masquerading as an attorney constituted a per se violation of his constitutional right to assistance of counsel. Defendant’s motions were denied by the lower courts. Each court below recognized that representation by unlicensed counsel constituted error but nonetheless denied defendant’s applications after determining that Silver’s representation did not contribute to the defendants’ convictions and that the acknowledged error was thus harmless beyond a reasonable doubt.

In a single opinion, with two Justices dissenting, the Appellate Division affirmed the denial of the motions made by Felder, Tucker and Wright. Like the lower courts, the Appellate Division employed a harmless error analysis to support its disposition. The denial of defendant Davis’ motion was subsequently affirmed by the Appellate Division, without opinion. For the reasons which follow we reverse.

We first address the contention of the District Attorney of Nassau County that "the Sixth Amendment’s use of the term 'counsel’ may not, historically, be synonymous with 'attorney at law’ ”. By this argument, the District Attorney seeks to distinguish cases involving the deprivation of "assistance” of counsel. It is his submission that the question of denial of effective representation is not the same as whether representation, per se, must be by a licensed attorney. The District Attorney urges that, while a deprivation of "assistance” of counsel may require automatic reversal, a defect in the status of "counsel” should not similarly result in a per se rule requiring reversal but should instead be judged in terms of its prejudicial effect on the defendant. In his view the affirmed findings that there was effective representation should conclude the matter.

We reject this contention. Counsel, as the word is used in the Sixth Amendment can mean nothing less than a licensed attorney at law. A lay person, regardless of his educational qualifications or experience, is not a constitutionally acceptable substitute for a member of the Bar. That this is the proper interpretation of the term is reinforced by the decisions of other courts, in proceedings factually similar to the cases at bar, in which it has been expressly held that "counsel” means a duly licensed and qualified attorney (People v Cox, 12 Ill 2d 265, 269; Higgins v Parker, 354 Mo 888). Moreover, numerous Federal courts dealing with the not unrelated issue of the right of a criminal defendant to choose to be represented by a lay person have consistently held that the right to counsel means the right to an attorney. (See, e.g., United States v Wilhelm, 570 F2d 461; United States v Wright, 568 F2d 142 [and cases cited therein]; Turner v American Bar Assn., 407 F Supp 451, affd sub nom. Taylor v Montgomery, 539 F2d 715; affd sub nom. Pilla v American Bar Assn., 542 F2d 56.) These decisions are based on sound historical analysis. Turner v American Bar Assn. (407 F Supp 451, 474, supra), sets forth the proper perspective from which to interpret the word counsel: "For centuries prior to the enactment of the Sixth Amendment, the English forerunner of the American lawyer was called or invited to practice for a Court only after the Court had satisfied itself that a person was fit to practice by virtue of his character and/or training. On the American side of the ocean, this practice continued throughout the colonial, revolutionary and post-revolutionary era of our history. Although standards for admission were not all uniform and were not always very stringent, the tradition of admission upon qualification continued to exist from even the earliest times of the American legal experience. This Court cannot find even a suggestion in the history of the Common Law after its primeval inception or in the history of the American lawyer that the word 'counsel’, as used in the Sixth Amendment, was meant to include a layman off the street without qualification as to either training or character.”

We join these cases in holding that counsel is indeed synonymous with attorney at law and conclude that inasmuch as these defendants were not represented by an attorney they were quite literally denied their right to assistance of counsel. We perceive no difference between an absolute deprivation of representation and "representation” by an unlicensed lay person — in both instances defendant is denied the right that the Sixth Amendment was designed to guarantee, the right to representation by an attorney.

We turn now to the major thrust of the People’s argument: that defendants’ representation by Silver, albeit error of constitutional significance, was nonetheless, in the unique circumstances of each of these cases, harmless error beyond a reasonable doubt.

The Appellate Division (61 AD2d 309, 312), correctly recognizing that all errors which violate the Constitution do not call for automatic reversal (Harrington v California, 395 US 250), applied the following standard: "The test of due process in such an instance is not whether the defendant had an attorney, licensed or unlicensed, but whether under all of the circumstances his conviction was obtained in such a manner as to be offensive to the common and fundamental idea of what is fair and right (see People v Carnivale, 3 Ill App 3d 443).” Within this framework the Appellate Division (p 314) reviewed the record in each case and concluded that "Silver represented each defendant ably, diligently, competently and consciously; there is no reasonable possibility that his infirmity * * * in any way contributed to, their convictions.”

We conclude that harmless error analysis is not applicable to these cases.

As we stated in People v Crimmins (36 NY2d 230, 237) an error of constitutional magnitude requires reversal of a criminal conviction unless it is demonstrated "that there is no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt (Chapman v. California, 386 U. S. 18; Fahy v. Connecticut, 375 U. S. 85)”. While the burden imposed by this standard is certainly an exacting one, both this court and the Supreme Court have held that, in particular circumstances, Federal constitutional error may be harmless. (Harrington v California, 395 US 250, supra; People v Almestica, 42 NY2d 222.)

Harmless error analysis is not, however, available in all instances of constitutional error. There are some errors which operate "to deny [an] individual defendant his fundamental right to a fair trial [in which event], the reviewing court must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant’s conviction.” (People v Crimmins, 36 NY2d 230, 238, supra; Chapman v California, 386 US 23, supra.) Among such errors is the denial of the constitutional right to assistance of counsel.

There can be no doubt that the right to assistance of counsel is an essential ingredient in our system of criminal jurisprudence, rooted deeply in our concept of a fair trial within the adversarial context. It is "one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty” (Johnson v Zerbst, 304 US 458, 462) and as such has been made applicable to the State by reason of the Fourteenth Amendment (Gideon v Wainwright, 372 US 335).

It is precisely this fundamental nature of the right that renders harmless error analysis inapplicable. "The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” (Glasser v United States, 315 US 60, 76.) Notions of prejudicial impact, overwhelming evidence of guilt and the like, which are the underpinnings of the constitutional harmless error doctrine, are significant in the context of trial errors, e.g., the admission of improperly seized evidence (People v Almestica, 42 NY2d 222, supra) or the improper admission of the confession of a codefendant who did not take the stand (Harrington v California, 395 US 250, supra). A denial of the right to assistance of counsel, however, not unlike prosecutorial misconduct, misconduct on the part of the Trial Judge or denial of a public trial, invalidates the trial. As the Supreme Court has recently said, "this Court has concluded that the assistance of counsel is among those 'constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.’ Chapman v. California, supra [386 US], at 23.” (Holloway v Arkansas, 435 US 475, 489.)

In view of the nature of the disposition we make of the appeals in these cases we do not reach or consider the other grounds for reversal of his conviction advanced on behalf of defendant Davis.

For the reasons stated the orders of the Appellate Division should be reversed, the motions to vacate the judgments granted and new trials ordered.

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

In each case: Order reversed, motion to vacate the judgment of conviction granted and a new trial ordered.

      . Silver had apparently maintained an illegal practice of law in the Nassau County area for approximately 12 years, including at one time appointment as a City Attorney. On May 24, 1976 Silver pleaded guilty to attempted unlicensed practice of law.

      . Felder’s appeal from this conviction was affirmed by both the Appellate Division and this court (People v Felder, 39 AD2d 373, affd 32 NY2d 747). A subsequent appeal to the United States Supreme Court was dismissed for want of a substantial Federal question (Felder v New York, 414 US 948).

      . Information concerning Silver’s status as either assigned or retained counsel is provided merely as background data. Our disposition of these cases in no way hinges on whether Silver was in fact retained or assigned — a circumstance which we find irrelevant for present purposes.

      . The District Attorney purports to find support for this proposition in language extracted from the Supreme Court’s decision in Faretta v California (422 US 806, 826-827). It is to be noted that the historical discussion referred to in Faretta was set forth in support of the court’s holding that the right to self-representation is an independent constitutional right, implied by the structure of the Sixth Amendment and supplemented by the right to counsel. The discussion did not focus on the question presented here — the meaning of the term counsel.

      . The Sixth Amendment provides in part that ”[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” (See, also, Constitution of the State of New York, art 1, § 6: "[I]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel”.)

      . We note that our present holding is limited to the circumstances presented, i.e., where a criminal defendant is unknowingly represented by a person who is not, and has never been, admitted to practice in this or any other jurisdiction. We do not address the effect the defendant’s knowledge of the imposter’s status may have, nor do we determine that representation, either knowing or unknowing, by a person who has been disbarred or who is licensed in another jurisdiction but not in New York, is necessarily violative of the Federal and State Constitutions. Finally, our ruling grounded on the constitutional provisions is, of course, limited to criminal cases, and we make no comment on the application of its rationale to the civil side of the law. (Cf. Dunn v Eickhoff, 35 NY2d 698.)


author: Fuchsberg, J. Jones, J.

text:
    Donald Riviello, Appellant, v Joseph Waldron, Defendant, and Raybele Tavern, Inc., Respondent.
    Argued May 3, 1979;
    decided June 7, 1979

      POINTS OF COUNSEL

      Paul K. Rooney and Elliot L. Evans for appellant.
    Whether Waldron’s negligent act was within the scope of his employment was a question of fact properly submitted to, and decided by, the jury. (Rounds v Delaware, Lackawanna & Western R. R. Co., 64 NY 129; Mott v Consumers’ Ice Co., 73 NY 543; De Wald v Seidenberg, 297 NY 335; Sims v Bergamo, 3 NY2d 531; Becker v City of New York, 2 NY2d 226; Makoske v Lombardy, 47 AD2d 284, 39 NY2d 773; Burns v City of New York, 6 AD2d 30; Geltzer v Russell, 49 AD2d 823; McDonald v Simpson-Crawford Co., 114 App Div 859; Matter of McGee v Allstate Ins. Co., 41 AD2d 866.)

      Jerome Prince, Raymond J. MacDonnell, Philip Holler, Rose L. Holler, Peter T. Affatato and James D. Madigan, III, for respondent.
    I. The court below correctly concluded that, as a matter of law, the tortious act committed by Waldron, Raybele’s employee, was neither incidental to nor in furtherance of defendant Raybele’s business. Consequently, Raybele cannot, as a matter of law, be held responsible therefor under the doctrine of respondeat superior. (Sauter v New York Tribune, 305 NY 442; Lundberg v State of New York, 25 NY2d 467; Moritz v Pines Hotel, 52 AD2d 1020; Bracco v Arro Sportswear Co., 3 NY2d 726; Becker v City of New York, 2 NY2d 226; di Suvero v Gem Window Cleaning Co., 22 AD2d 781, 17 NY2d 831; Gibilaro v Lomax Trading Corp., 22 AD2d 703, 16 NY2d 898; Ehlenfield v State of New York, 62 AD2d 1151; Nero v Ris Paper Co., 60 AD2d 340; Matter of Marks v Gray, 251 NY 90.) II. Under section 15-108 of the General Obligations Law, defendant Raybele’s liability was reduced to zero by reason of plaintiff’s settlement with and release of defendant Waldron, the primary tort-feasor, the reservation of rights therein notwithstanding. The trial court therefore erred in not granting defendant Raybele’s motion to dismiss on this ground. The court below did not consider this contention. (Dole v Dow Chem. Co., 30 NY2d 143; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1.) III. In the event that this court reverses the order of the court below, a new trial should be ordered because of prejudicial errors committed by the trial court. These errors were not considered by the court below. (Green v Downs, 27 NY2d 205; Jones v Weigand, 134 App Div 644; Sauter v New York Tribune, 305 NY 442; Gibilaro v Lomax Trading Corp., 22 AD2d 703, 16 NY2d 898; Moritz v Pines Hotel, 52 AD2d 1020; Reed v McCord, 160 NY 330.)
   OPINION OF THE COURT

Fuchsberg, J.

Plaintiff Donald Riviello, a patron of the Pot Belly Pub, a Bronx bar and grill operated by the defendant Raybele Tavern, Inc., lost the use of an eye because of what was found to be negligence on the part of Joseph Waldron, a Raybele employee. The jury having decided for the plaintiff, in due course the trial court entered a judgment in his favor for $200,000 plus costs and interest from the date of the verdict. It later amended the judgment to reflect a payment of $25,000 which the plaintiff had received in advance of trial from Waldron’s personal liability insurer in return for a general release conditioned upon a reservation of plaintiff’s rights against Raybele.

On plaintiffs appeal to us, the principal issues we confront are: (1) whether, as a matter of law, Waldron’s negligence, which Riviello sought to impute to Raybele on the theory of respondeat superior, was outside the scope of the employment and, if not, (2) whether, under section 15-108 of the General Obligations Law, the prejudgment settlement between plaintiff and Waldron operated to bar any recovery by plaintiff against Raybele, an assertion on which, in the light of the ground for the Appellate Division’s decision, it did not have to pass. For the reasons which follow, we believe both questions should be answered in the negative.

The relevant facts are easily set forth. And, because, in the posture in which the case comes to us, our examination focuses on whether plaintiff established a prima facie case against Raybele, we, of course, do so in the light most favorable to the plaintiff (De Wald v Seidenberg, 297 NY 335, 336-337).

As was customary, on the Friday evening on which Riviello sustained his injuries, only two employees manned the Pot Belly. One was the bartender. The other was Waldron, who, in this modest-sized tavern, wore several hats, primarily that of short-order cook but also the ones that went with waiting on tables and spelling the bartender. Though his services had been engaged by Raybele’s corporate president in the main to improve business by introducing the sale of food, his testimony showed that the fact that, as a local resident, he was known to most of the customers in this neighborhood bar figured in his hiring as well. There was also proof that, in the time he had been there, when not preparing or serving food or relieving the bartender, he would follow the practice of mingling with the patrons.

Nor was Riviello a stranger when he entered the premises that night. Living nearby, he had frequented the establishment regularly for some years. The two men knew one another and, after a while, Riviello gravitated to the end of the bar near the kitchen, where, during an interval when he had no food orders to fill, Waldron and another patron and mutual friend, one Bannon, were chatting. Riviello joined in the discussion, which turned to street crime in the neighborhood. In the course of the conversation, Waldron exhibited a knife, variously described as a pocketknife or, according to Bannon, a boy scout knife, containing a small blade and screwdriver attachment, which he said he carried for protection. At this point Waldron broke away to go to the kitchen to fill a food order for another patron. Several minutes later, while Waldron was returning from his chore to rejoin Bannon and Riviello, the latter suddenly turned and, as he did so, his eye unexpectedly came in contact with the blade of the knife which Waldron still had in his hand. On defendant’s case, Waldron largely confirmed these facts, but added that he was "flipping” the knife, presumably as one might flip a coin, as he was coming from the direction of the kitchen and inadvertently struck the plaintiff. No one else so testified.

Applying the pertinent legal precepts to this factual framework, we first note what is hornbook law: the doctrine of respondeat superior renders a master vicariously liable for a tort committed by his servant while acting within the scope of his employment (Mott v Consumers’ Ice Co., 73 NY 543; 2 Mechem, Agency [2d ed], § 1874). The definition of "scope of employment”, however, has not been an unchanging one.

Originally defined narrowly on the theory that the employer could exercise close control over his employees during the period of their service, as in other tort law contexts (see, e.g., Codling v Paglia, 32 NY2d 330, 339-341), social policy has wrought a measure of relaxation of the traditional confines of the doctrine (see Restatement, Agency 2d, § 219, Comment [a]). Among motivating considerations are the escalation of employee-produced injury, concern that the average innocent victim, when relegated to the pursuit of his claim against the employee, most often will face a defendant too impecunious to meet the claim, and that modern economic devices, such as cost accounting and insurance coverage, permit most employers to spread the impact of such costs (see Prosser, Torts [4th ed], § 69; Seavey, Agency, § 83).

So, no longer is an employer necessarily excused merely because his employees, acting in furtherance of his interests, exhibit human failings and perform negligently or otherwise than in an authorized manner. Instead, the test has come to be " 'whether the act was done while the servant was doing his master’s work, no matter how irregularly, or with what disregard of instructions’ ” (Jones v Weigand, 134 App Div 644, 645, quoted in Baker v Allen & Arnink Auto Renting Co., 231 NY 8, 12-13 [Pound, J.]).

Thus formulated, the rule may appear deceptively simple but, because it depends largely on the facts and circumstances peculiar to each case, it is more simply said than applied (see Riley v Standard Oil Co., 231 NY 301, 304). For, while clearly intended to cover an act undertaken at the explicit direction of the employer, hardly a debatable proposition, it also encompasses the far more elastic idea of liability for "any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act” (2 Mechem, Agency [2d ed], § 1879, p 1461). And, because the determination of whether a particular act was within the scope of the servant’s employment is so heavily dependent on factual considerations, the question is ordinarily one for the jury (Rounds v Delaware Lackawanna & Western R. R. Co., 64 NY 129, 137-138; see McLoughlin v New York Edison Co., 252 NY 202, 208; Note, 45 U of Cin L Rev 235, 236).

That is not to say there are no useful guidelines for assessing whether the conduct of a particular employee, overall, falls within the permissible ambit of the employment. Among the factors to be weighed are: the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated (see Prosser, Torts [4th ed], § 70, p 461; Restatement, Agency 2d, § 229).

The first of these criteria need not detain us. The Pot Belly was the arena in which Waldron worked, and the evening was the time when he did so. The route from the kitchen where he would hold forth as chef to the patrons in the public room in which he performed his other functions could hardly be claimed to be a physical deviation. As to past employment practices, there was evidence that the friendly relations which Waldron enjoyed with the majority of the pub’s patrons and the expectation that these would be exploited to enhance the popularity of the pub entered into the hiring itself. The implementation of this plan, pursued continuously until the day Riviello was injured, almost of necessity had to depend largely on Waldron’s own personality and his judgment of how different patrons were to be handled. Pertinently, we suggest that, even if the jury had found no express understanding that Waldron would socialize, it could have drawn the inference from the nature of his job that his interaction with those visiting the premises would be a concomitant of the employment.

Surely, the fact that Waldron, at the precise instant of the occurrence, was not plying his skills as a cook, waiter or bartender did not take him beyond the range of things commonly done by such an employee. The intermittent demands of his work meant that there would be intervals in which his function was only to stand by awaiting a customer’s order. Indeed, except perhaps in a world of complete automation, as portrayed for instance in Charlie Chaplin’s classic film "Modern Times”, the busiest of employees may be expected to take pauses and, when they do, engage in casual conversation, even punctuated, as here, by the exhibition to others of objects they wear or carry on their persons.

We turn then to the extent of Waldron’s departure, if it may be so characterized, from the normal methods of his performance, and to whether the specific act of carrying the pocketknife in his hand was one that the employer could reasonably have anticipated. Initially, it bears noting that for an employee to be regarded as acting within the scope of his employment, the employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected (see 2 Mechem, Agency [2d ed], § 1884). As indicated earlier, it suffices that the tortious conduct be a natural incident of the employment. Hence, general rather than specific foreseeability has carried the day even in some cases where employees deviated from their assigned tasks (see Makoske v Lombardy, 47 AD2d 284, affd 39 NY2d 773 [negligent use of personal car by employees after training session for which they were required to be away from home overnight]; Basile v Huntington Utilities Fuel Corp., 47 AD2d 625 [truck garaged at an employee’s home over weekend used to assist fellow employee personally held within scope of employment]).

Indeed, where the element of general foreseeability exists, even intentional tort situations have been found to fall within the scope of employment (see, e.g., Sims v Bergamo, 3 NY2d 531, 534-535 [assault of unruly patron by bartender to protect employer’s property and to maintain order on premises]; De Wald v Seidenberg, 297 NY 335, 337-338, supra [assault of tenant by building superintendent during attempted enforcement of occupancy rules]).

Given all this, it was permissible to find as a fact that Raybele could have anticipated that in the course of Waldron’s varied activities in the pursuit of his job, he might, through carelessness, do some injury. The specifics of the act, though it was not essential that they be envisaged, could be, as here, the product of an inattentive handling of the pocketknife he had described to Riviello and Bannon, or a similar mishandling of a paring knife he could have had in his hand as he left the kitchen, or perhaps a steak knife with which he was on his way to set a table. Or, perchance, instead of a knife, with equal nonmalevolence it could in similar fashion have been a pen, a comb, a nail file, a pencil, a scissors, a letter opener, a screwdriver or some other everyday object that he was displaying. In any of these cases, an instant of inattention could render each an instrument of injury.

Further, since, as a result of our decision, this case will return to the Appellate Division for consideration of the facts, it is not amiss to add the following observations: Waldron's own testimony that he had "flipped” the knife (though not intending any injury) was no part of plaintiffs case. If it had been, it is not to be assumed that this kind of motion, any more than would the twirling of a chain containing sharp-pointed keys or the tossing of a coin, or some other gesture, whether used as an aid to communication or an outlet for nervous energy, would be beyond the broad ambit of the employer’s general expectation. For one employing men and women takes them subject to the kind of conduct normal to such beings.

We now focus on the second issue — the applicability of subdivision (a) of section 15-108 of the General Obligations Law to Riviello’s claim against Raybele. In pertinent part, that section states that a release given to one of two or more tort-feasors liable for the same injury will reduce a plaintiffs claim against the other tort-feasors by whichever is the greatest among (1) the amount of the release, (2) the consideration paid for it, or (3) "the amount of the released tortfeasor’s equitable share of the damages” under CPLR article 14. Raybele argues, not without some facial justification, that since it is only vicariously liable by virtue of its status as employer, the "equitable share” of Waldron, the released tortfeasor, is 100% and, hence, its own liability is now zero.

The flaw in Raybele’s argument lies in the presumed equivalence between its claim of indemnification against Waldron and a claim of contribution under CPLR article 14. The right of contribution arises among several tort-feasors who share culpability for an injury to the plaintiff and whose liability may be equitably apportioned according to fault (Dole v Dow Chem. Co., 30 NY2d 143, 148-149). Indemnity, however, flows from either a contractual or other relationship between the actual wrongdoer and another, such as that of employee and employer, and involves a complete shifting of the loss. (See Rock v Reed-Prentice Div., Package Mach. Co., 39 NY2d 34, 38-39; McFall v Compagne Mar. Belge, 304 NY 314, 327-328; Prosser, Torts [4th ed], § 50.)

Even upon a cursory reading of the statute, it becomes evident that section 15-108 is meant to be read in conjunction with the contribution rights set forth in article 14 (see Rock v Reed-Prentice Div., supra, pp 39-40). It is of no small significance that the proviso Raybele interprets as prohibiting plaintiff’s recovery contains an explicit reference to that article, the legislative codification of the apportionment rule announced in Dole v Dow Chem. Co. (30 NY2d 143, supra). As we have emphasized elsewhere, Dole "was hardly intended to overturn basic and satisfactory principles of common-law indemnification * * * [but] applies to those who in fact share responsibility for causing the injury or harm, and does not extend further to those who are only vicariously liable, as the employer of a negligent employee.” (Rogers v Dorchester Assoc., 32 NY2d 553, 565-566; see Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co., 45 NY2d 551, 577; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1, 6; cf. Kelly v Long Is. Light. Co., 31 NY2d 25, 30). Moreover, by its express terms CPLR article 14 has been so limited, section 1404 (subd [b]) stating, "Nothing contained in this article shall impair any right of indemnity or subrogation under existing law”.

Further evidence of the linkage between section 15-108 and the article 14 rights comes from the section’s purpose. The design in large measure was to clarify the effect of settlements in multiparty tort suits in the wake of Dole and CPLR article 14 and to promote, rather than deter, the consensual disposition of cases (see Rock v Reed-Prentice, supra, pp 40-41). This unsettling potential has not gone unnoticed (see McLaughlin, Practice Commentary, McKinney’s Cons Laws of NY, Book 23A, General Obligations Law, § 15-108, p 719; McLaughlin, Practice Commentary, Book 7B, CPLR 1404:2, p 382; see, also, Lipsig, Effect of Settlement Under GOL 15-108, NYU, April 26, 1979, p 1, col 1; p 2, col 3). Nor is it any less obvious that the interpretation urged by Raybele would contravene the policy bases for the imposition of vicarious liability on employers, a consequence we are loath to imply absent clearer indication that the Legislature intended any such result.

Since, therefore, it appears to us that the section should be read to harmonize with CPLR article 14, we hold that section 15-108 of the General Obligations Law does not foreclose a plaintiff negligently injured by an employee from recovering against an employer on a theory of vicarious liability despite the plaintiffs prior execution of a release running to the negligent employee.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted for review of the facts.

Jones, J.

(concurring). I concur in result in this case but cannot accept what appears to me to be the overbreadth of the majority opinion, addressing as it does matters which are not necessary for the resolution of this appeal.

Chief Judge Cooke and Judges Gabrielli and Wachtler concur with Judge Fuchsberg; Judge Jones concurs in result in a separate memorandum; Judge Jasen dissents and votes to affirm for the reasons stated in the concurring memorandum by Mr. Justice Vincent A. Lupiano at the Appellate Division (63 AD2d 593).

Order reversed, with costs, and the case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

       Subdivision (a) of section 15-108 of the General Obligations Law reads: "Effect of release of Or covenant not to sue tortfeasors. When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor’s equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest.”


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Stanley Robert Rappaport, Appellant.
    Argued April 25, 1979;
    decided June 7, 1979

      POINTS OF COUNSEL

      Irving Anolik for appellant.
    Defendant herein should not have been indicted for criminal contempt since the minutes of the Grand Jury reveal that he was never informed that he was being recalcitrant in answering proper questions, nor that his answers were in any way equivocal or evasive. Moreover, Rappaport was never taken before a Justice of the Supreme Court with reference to his behavior before the Grand Jury. (People v Cutrone, 50 AD2d 838, 40 NY2d 988; Shillitani v United States, 384 US 364; Harris v United States, 382 US 162; United States ex rel. Buonoraba v Commissioner of Correction of City of N. Y., 316 F Supp 556; People v Ianniello, 36 NY2d 137; Papachristou v City of Jacksonville, 405 US 156; People v Ianniello, 21 NY2d 418; Matter of Second Additional

      Grand Jury of County of Kings v Cirillo, 16 AD2d 605; Matter of Foster v Hastings, 263 NY 311.)

      Robert M. Morgenthau, District Attorney (David Rapaport and Robert M. Pitler of counsel), for respondent.
    There is no requirement that a Grand Jury witness must have been warned about the crime of evasive contempt while in the very act of giving evasive testimony before he can be indicted for "evasive” contempt of the Grand Jury. Even assuming that in some circumstances, fairness might dictate a warning, no such circumstances exist here and, in any event, appellant was made fully aware that his answers were evasive as well as the consequences flowing from such evasion. (People v Didio, 60 AD2d 978; People v Cutrone, 50 AD2d 838; People v Ianniello, 21 NY2d 418; Matter of Second Additional Grand Jury of County of Kings v Cirillo, 16 AD2d 605; Matter of Foster v Hastings, 263 NY 311; Papachristou v City of Jacksonville, 405 US 156; United States v Mandujano, 425 US 564; United States v Winter, 348 F2d 204; People v Ianniello, 36 NY2d 137.)
   OPINION OF THE COURT

Wachtler, J.

The defendant has moved to dismiss an indictment charging him with criminal contempt in the first degree (Penal Law, § 215.51) for allegedly giving evasive answers while testifying before a Grand Jury under a grant of immunity. The Supreme Court, New York County, granted the motion but the Appellate Division, First Department, reversed and reinstated the indictment. The defendant appeals.

The question is whether a Grand Jury witness who has been granted immunity and warned concerning evasive contempt must later be readvised or "contemporaneously” warned by the Grand Jury, the prosecutor or the court that the answers he is giving are evasive and thus may constitute criminal contempt. The Appellate Divisions which have considered the question have apparently established inconsistent rules (compare People v Cutrone, 50 AD2d 838, app dsmd 40 NY2d 988, with People v Didio, 60 AD2d 978; People v Rappaport, 60 AD2d 565).

The defendant is an auctioneer who had been assigned to sell certain property involved in a matrimonial action. In 1976 he was called to appear as a witness before a Grand Jury which was investigating a complaint that the matrimonial action had been corruptly influenced by the husband or persons acting on his behalf. The defendant testified before the Grand Jury on three occasions: July 13, 14 and 23.

At the defendant’s first appearance the District Attorney advised him, on the record, of the nature of the investigation and also informed him that although he would receive immunity he could still be prosecuted for perjury or contempt committed while testifying before the Grand Jury. The prosecutor further stated that contempt could be committed in two ways: (1) by expressly refusing to answer proper questions or (2) "by giving a response to a legal and proper interrogatory that is so evasive, so equivocal, so conspicuously unbelievable and patently false as to be the same thing as saying I’m not going to answer.” Finally the prosecutor gave the defendant an example of evasive contempt and permitted him to consult with counsel after which the defendant stated — and reiterated on each occasion that he appeared before the Grand Jury — that he had no questions concerning his status as an "immunized witness” and was prepared to answer questions.

During his second appearance before the Grand Jury the defendant was questioned about a conversation he had with an individual who was allegedly acquainted with the husband in the matrimonial action. The defendant testified that this individual had stated that he and the Justice presiding at the matrimonial action were "friends” but the defendant denied that "anything more” had been said about the relationship. At that point he was again reminded of his obligations as an "immunized witness” and was warned that he could be prosecuted for contempt if he gave evasive answers. The defendant however did not alter his testimony, nor was he indicted for contempt.

At his final appearance the defendant was asked whether he had told anyone that the referee who had been appointed in the matrimonial action "kicked back” 60% of his fees to persons who were responsible for his appointment. The defendant responded that he "may have” but he could not "attest” to it. When asked who he told, the defendant said that he "may have” told the wife in the matrimonial action, but he stated "I can’t even specifically say I said that.”

The prosecutor then informed the defendant of the importance of this inquiry, which was conceded by the defendant, and repeated the question in various forms. For instance, he asked the defendant whether he recalled telling this to anyone "within the past two months”; whether he recalled mentioning this to the wife in the matrimonial action in the presence of another named individual and whether he stated that the "kick back” would go to a designated political organization. The defendant, however, repeatedly stated that he could not "recall saying it” and would not "attest to it one way or another if I said it or not.” After pursuing other subjects the prosecutor returned to this inquiry, but the defendant continued to deny any recollection of having made the statement.

The defendant was indicted for criminal contempt. The indictment states that "On July 23, 1976, upon being asked whether he had told her [the wife in the matrimonial action] that the referee kicked back monies to a political clubhouse, the defendant contumaciously and unlawfully refused to answer the legal and proper interrogatories in that the defendant gave equivocal, evasive, conspicuously unbelievable and patently false answers”.

On motion by the defendant the trial court dismissed the indictment relying on People v Cutrone (50 AD2d 838, supra) which states that a witness must "be warned that his continued recalcitrance in answering proper questions would expose him to charges of criminal contempt.” Here the court noted that the defendant had received prior warnings, but none during his final appearance and, although he gave "patently evasive replies to certain inquiries” on that occasion "neither the district attorney nor the foreman interrupted to direct him to answer responsively, nor was he brought before the court to be properly admonished and advised.” The court concluded that "[u]nder the rationale of Cutrone, it would seem that a warning, to be effective, must be delivered, not only before a witness first begins to testify, but also at a time when he still has an opportunity to cure his unresponsiveness; that is, contemporaneously with the questioning which elicited the evasive answers.”

The Appellate Division reversed holding that the prior warnings, coupled with the repeated questions on July 23 were sufficient to apprise the defendant of his vulnerability to a charge of evasive contempt. The court also noted that "If we were to adopt a rule that required the prosecution to warn the witness every time an otherwise unresponsive answer was made, the witness might, quite rightly, claim harassment.”

In this State a witness who testifies before a Grand Jury automatically receives immunity, except in certain circumstances not applicable here (CPL 190.40, subd 2). By statute this immunity not only protects the witness from subsequent use of his testimony, as is required by the Federal Constitution (Kastigar v United States, 406 US 441), but also absolves him from all criminal liability, penalty or forfeiture for any "transaction * * * concerning which he gave evidence” (CPL 50.10, subd 1). The statute provides, however, that the immunity does not extend to perjury or contempt committed while testifying before the Grand Jury (CPL 50.10, subd 1). And "[t]o be guilty of contempt the witness need not flatly refuse to answer the questions put to him; false and evasive profession of an inability to recall, which amounts to no answer at all, is punishable as criminal contempt” (People v Ianniello, 36 NY2d 137, 142; see, also, People ex rel. Valenti v McCloskey, 6 NY2d 390).

We have held that "fundamental fairness” requires that the witness be informed of the extent of the immunity conferred by the statute (People v Masiello, 28 NY2d 287, 291; People v Mulligan, 29 NY2d 20; People v Tramunti, 29 NY2d 28). "At the very least * * * the witness must be advised that he may not be prosecuted criminally concerning any transaction about which he might be questioned” (People v Masiello, supra, p 291). And although it may appear to be obvious that a sworn witness who has been granted immunity must testify truthfully and, perhaps less obvious, answer all lawful questions, the statute expressly provides, and the witness should be informed, that he will not be immune from prosecution for perjury if he lies, or for contempt if he refuses to answer or gives evasive replies. This should not require an extended explanation (see, e.g., People v Masiello, supra, pp 291, 292), nor should the prosecutor be required to repeat the admonition, or have the court direct an answer, every time the witness’ testimony becomes vague or evasive.

The holding in the Cutrone case, that the witness must be contemporaneously warned that he is courting contempt, is not supported by the cases cited in the opinion (Matter of Second Additional Grand Jury of County of Kings v Cirillo, 16 AD2d 605; Matter of Foster v Hastings, 263 NY 311; People v Ianniello, 21 NY2d 418). The court apparently confused the requirement that a Grand Jury witness be fairly advised of the extent of his immunity, with the special requirements of summary contempt proceedings. In the summary proceedings, of course, the witness must be brought before the court and directed to answer before he may be held in contempt (Matter of Second Additional Grand Jury of County of Kings v Cirillo, supra; Matter of Foster v Hastings, supra). This, however, is not a prerequisite to a charge of criminal contempt (see Penal Law, § 215.51) although we have noted that taking the witness before the court may reduce stalling tactics and expedite the proceeding (People v Ianniello, 21 NY2d 418, 425, supra). Indeed in the Ianniello case the indictment was sustained (21 NY2d 418) and the conviction for criminal contempt upheld (36 NY2d 137) despite the fact that the defendant had never been brought before the court and directed to give a more responsive answer.

Resort to the court, particularly through summary contempt proceedings, has always been considered an optional remedy. An admonition or direction from the court or the prosecutor may, in some cases, persuade the witness to give a more responsive answer but it is not necessary to put the witness on notice when, as here, he had been fairly, indeed generously, informed of the extent of his immunity and his continuing liability to criminal prosecution if he answers evasively. Of course even when the witness has been fairly warned at the outset the prosecutor may not thereafter attempt to trap the witness into giving confusing or evasive replies (cf. People v Tyler, 46 NY2d 251; People v Pomerantz, 46 NY2d 240; People v Schenkman, 46 NY2d 232). But in this case it cannot be said that the witness was caught in a "contempt trap” in view of the prosecutor’s careful reframing and repetition of the questions and his representation, acknowledged by the witness, that the inquiry was important to the matter under investigation (cf. People v Tyler, supra; People v Pomerantz, supra; People v Schenkman, supra).

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

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

Order affirmed.

       "Q. Let me give you an example. Let’s assume in the context of this investigation it were a legal and proper question for me to ask you did you get married last week. And let’s assume that the witness to whom that question was addressed said, maybe yes, maybe no. It’s possible I got married last week, and indeed it is probable I got married last week but I don’t remember. That type of response to that type of question may subject that witness to prosecution for the crime of criminal contempt because as I am sure you’ll agree that is so evasive, so equivocal and so conspicuously false that it is the same thing as saying I am not going to answer that. Now, do you understand that?
      "A. Yes, I do.”