author: Wachtler, J. Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v James Brown, Appellant.
    Argued October 11, 1979;
    decided November 27, 1979

      POINTS OF COUNSEL

      Andrew E. Abraham and William E. Hellerstein for appellant.
    I. The "test” conducted by Juror Leslea Abramson during trial from which she determined that Detective Ford, the People’s only identification witness, could have seen the driver of an adjacent vehicle (alleged to be appellant) from the rear seat of the police van in which he was riding violated appellant’s Sixth and Fourteenth Amendment rights to confront the witnesses against him and to be tried before a jury whose verdict would be based solely upon the evidence at trial. (Turner v Louisiana, 379 US 466; Sheppard v Maxwell, 384 US 333; Patterson v Colorado, 205 US 454; People v Genovese, 10 NY2d 478; Parker v Gladden, 385 US 363; People v Crimmins, 26 NY2d 319; People v De Lucia, 20 NY2d 275; United States v Beach, 296 F2d 153; People v Acevedo, 40 NY2d 701; Kratche v New York Cent. R. R. Co., 228 App Div 820.) II. Appellant was deprived of a fair trial by the prosecutor’s (1) cross-examination of him in which he (a) implied that appellant’s postarrest request for an attorney indicated consciousness of guilt, and (b) brought out, in violation of a Sandoval ruling to which he had consented, that appellant had previously been in trouble with the law, and (2) improper calling of Ms. Conway as a rebuttal witness, not to rebut the defense case, but rather, to show the jury that she had not been called by the defense and to force the defense into making this hostile witness its own. (Escobedo v Illinois, 378 US 478; People v Al-Kanani, 26 NY2d 473; People v Von Werne, 41 NY2d 584; Griffin v California, 380 US 609; People v Crimmins, 36 NY2d 230; Chapman v California, 386 US 18; People v Sandoval, 34 NY2d 371; People v Ashwal, 39 NY2d 105; Marshall v Davies, 78 NY 414; Herring v New York, 422 US 853.)

      John J. Santucci, District Attorney (Joan L. Craig of counsel), for respondent.
    I. Appellant’s guilt of the crimes of which he was convicted was overwhelmingly established by the evidence at trial. (People v Jackson, 44 NY2d 935; People v Keitt, 42 NY2d 926; People v Robinson, 36 NY2d 224; People v Morales, 37 NY2d 262; People v Rivera, 57 AD2d 936; People v Regina, 19 NY2d 65; People v White, 2 NY2d 220; People v Mleczko, 298 NY 153; People v Lytton, 257 NY 310; People v Arata, 255 NY 374; People v Atlas, 183 App Div 595, 230 NY 629.) II. Appellant’s Sixth and Fourteenth Amendment rights were not violated by a juror’s "test” which did not entail the introduction of extrajudicial facts peculiarly related to the circumstances to which the People’s witnesses testified. (People v Crimmins, 26 NY2d 319; United States v McKinney, 429 F2d 1019; People v De Lucia, 20 NY2d 275; United States v Beach, 296 F2d 153.) III. Appellant was not deprived of a fair trial by the prosecutor’s cross-examination of him. (People v Duffy, 36 NY2d 258; People v Sandoval, 34 NY2d 371; People v Schwartzman, 24 NY2d 241; People v Crimmins, 36 NY2d 230; Chapman v California, 386 US 18.) IV. Appellant’s contention that the prosecutor improperly called Barbara Conway as a rebuttal witness has not been preserved for review by this court. (Jackson v United States, 297 F2d 195; People v Robinson, 36 NY2d 224; People v Miller, 50 AD2d 757, 41 NY2d 857; People v Rodriguez, 38 NY2d 95.)
   OPINION OF THE COURT

Wachtler, J.

During a trial a juror conducted a "test” which bore on the credibility of a key prosecution witness. The issue on this appeal is whether that conduct and the communication of the results of the "test” to other jurors during their deliberations, constitutes reversible error.

The defendant Brown was convicted after trial of one count of robbery, first degree, and two counts of reckless endangerment, first degree, in connection with the robbery of a Queens candy store. The defendant was accused of being the driver of the escape car; his two codefendants were alleged to have conducted the actual robbery and to have fired shots at pursuing police.

Brown’s first trial ended in a hung jury. The evidence at the second trial, with which we are concerned here, was as follows:

About 6:45 p.m. in late October of 1974, three plainclothes policemen were cruising in an unmarked General Motors van, when they observed a car slowly moving in the opposite direction with its three occupants looking into store windows. The police made a U-turn and followed. When the car stopped at a red light, the police pulled the van alongside the driver’s car on the driver’s side.

While the two policemen in the front seat of the van looked straight ahead so as not to arouse suspicion, the third, Ford, who was seated in the second seat of the van, looked at the driver of the car for the duration of the red light, a maximum of 37 seconds. The police then followed the car for some 20 blocks until it parked and two men, neither of whom was the defendant, got out and entered a candy store. Ford followed on foot, and when the two suspects exited from the store and began to run, Ford signaled his partners in the van to pursue them.

The suspects re-entered the escape car and, followed by the van, engaged in a running gun battle that ended when the escape car rammed another vehicle. Ford’s partners testified that they actually saw only two persons run from the escape car, and neither of them was the defendant. All three suspects escaped on foot. The defendant was arrested later that evening after police traced the escape car to him. The defendant, however, had reported the car stolen about 7:30 p.m. that evening, approximately a half hour after the robbery.

At trial, Ford, who testified that the defendant was the driver he observed at the stoplight, was the only witness who placed Brown at the scene of the crime, and the defense concentrated heavily on the accuracy of that identification. At issue were Ford’s opportunity to observe, including the length of the observation, the lighting conditions, and whether the angle of sight was such that a passenger in the second seat of a van could observe the face of the driver of an adjacent car which is approximately three feet lower, as well as Ford’s personal powers of observation and general credibility.

After the jury returned its guilty verdict counsel for the defendant moved to set it aside having learned that one juror had conducted a "test” of the visibility afforded by her own Volkswagen van, which is of a different design from the General Motors van used by the police, and had informed the jury panel of her "test” and her conclusion that it was possible to see the face of the driver of an adjacent car. In other words, her "test” had supported the accuracy of Ford’s testimony.

At a hearing on the motion to set aside the verdict, both sides were afforded an opportunity to present evidence and examine witnesses. The juror in question acknowledged conducting the "test”. She testified, in part, that the exercise was not preplanned and did not occur at the site described in the trial testimony, but that she had been curious about whether it was possible to see the driver of an adjacent car. To satisfy this curiosity, when a similar occasion presented itself, she sat in the second seat of her van to look out the window at an adjacent driver.

The trial court concluded that the results of the "test” had been conveyed to other members of the jury before the verdict was reached, but that the test was not preplanned or arranged, had not occurred at the scene of the incident in question, and that there was no evidence that the jury had been affected by an inherently prejudicial outside influence.

The Appellate Division questioned whether the evidence given at the hearing proved that the "test” results had been told to the jury before the verdict was reached, but concluded that there was no reversible error in any case as the juror who conducted the "test” merely "spontaneously drew on a common everyday situation with which she was familiar, in order to test the detective’s veracity.”

At the outset we must consider whether the juror’s conduct in question is to be considered improper. Although the juror’s actions have been characterized as a "test”, merely to label them does not necessarily resolve the issue. With some logic it is contended here, as both the trial court and the Appellate Division found, that the juror’s "test” was no more than the application of everyday perceptions and common sense to the issues presented in the trial.

Jurors, of course, do not live in capsules. It is not expected that their selection as jurors should cripple their cognitive functions. On the contrary, the leavening accomplished by the application of a lay jury’s collective intelligence and experience to the tasks of sifting evidence and reaching a verdict is justly regarded as a hallmark of our judicial system.

Generally, a jury verdict may not be impeached by proof of the tenor of its deliberations, but it may be upon a showing of improper influence (Parker v Gladden, 385 US 363). Improper influence, of course, embraces not merely corrupt attempts to affect the jury process, but even well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial (United States v Beach, 296 F2d 153). Thus, in People v Crimmins (26 NY2d 319) and People v De Lucia (20 NY2d 275), this court set aside verdicts where jurors had made unauthorized visits to locations described in trial testimony, finding the jury conduct under those circumstances to be inherently prejudicial to the defendant’s historic rights of confrontation and cross-examination of witnesses against him.

The inherently prejudicial character of the jury conduct in De Lucia (supra) arose from the fact that the jurors actually re-enacted the crime; in Crimmins it inhered in the jury conduct because the credibility of a key witness turned on her ability to see and hear the events to which she testified, and the unauthorized viewing might well have permitted the jury to resolve questions about lighting in the area. Of course, not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically. Because juror misconduct can take many forms, no ironclad rule of decision is possible. In each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered.

In the case now before us, the "test” conducted may not properly be classed as an application of everyday experience. This is demonstrated by the fact that the juror felt compelled to conduct the exercise at all, despite the fact that she owned and regularly operated a van, i.e., what she could see from the second seat was not within her experience. At the hearing she testified, in part, that "I had to make the test to verify it, and I was still unsure at the conclusion, and the summation convinced me on evidence it was possible.”

We need not consider now what the result might be if the juror had been placed by pure coincidence in a position to make her observations, because in the case at bar the conduct was conscious, contrived experimentation.

Second, the "test” was directly material to a point at issue in the trial. At stake was whether Detective Ford, from where he sat, could have observed the driver of an adjacent car. Clearly, testimony that a passenger in the second seat of a van could see the face of the adjacent driver made Ford’s account more believable. The juror testified that "I had questioned angles and the light in my own mind, and I could see that it was plausible” and that her test "was a piece in a puzzle”.

Third, the juror’s "test” created a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors as well as her own. Ford’s credibility was not only at issue, but was crucial to the prosecution’s case against the defendant. As Ford was the sole witness to directly link the defendant with the crime, the case necessarily failed if his identification could not be believed. As Ford’s credibility was bolstered by the juror who was generally experienced with vans, it seems reasonable to assume that the jury might give her view extra weight.

The respondent urges that because the "test” did not relate specifically to this defendant and was not conducted at the location described, it should be considered an application of general experience. However, the impact of the "test” could only have been aggravated by these circumstances. It put before the jury evidence that could never have been admissible at trial because it was not comparable in location, lighting, or type of van.

Finally, having found that the juror’s "test” and its relation to the rest of the panel constituted error prejudicial to the rights of the defendant, we find that the error cannot be excused. This court in People v Crimmins (36 NY2d 230, 241), has carefully set out the various tests to be applied to determine whether a violation of a Federal constitutional right, a State right, or a general fair trial right, may be considered harmless error. However, we need not parse the error to fix its precise classification. Because the degree to which the jury process was compromised in this case can neither be tolerated nor be deemed harmless.

Inasmuch as we find that the juror’s conduct of a "test” requires reversal here, we do not pass on the prosecutor’s cross-examination of the defendant in such a way as to imply a consciousness of guilt from his exercise of the right to counsel, a matter conceded to be error and one which might well constitute independent grounds for reversal.

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

Fuchsberg, J.

(concurring). To imply a consciousness of guilt in a defendant because he sought to avail himself of his right to counsel is not only a blatant appeal to lay prejudice but the exaction of an impermissible price for the exercise of a fundamental privilege. The prosecutor certainly should have known better. I am therefore prepared to join in reversing on that account.

But it brooks reality to do so on the ground that the juror looked to see what she could observe from the second seat of her own van. Even assuming it played any role in the deliberations — and there was no competent proof of when, if at all, it was related to the other jurors — in a larger sense it was no more than a small item of "background experience”, possession of which is an important, highly valued and expected strength of a jury.

In persuading one another to their respective viewpoints, and indeed in resolving their own doubts, jurors, like other people, employ the products of their education and experience, frequently argue by analogy and commonly make comparisons with things at hand. That is essentially all that happened in this case. Consequently, if the juror episode here is to contaminate the verdict, hardly any determination of facts, by Judge or jury, would be impervious to such attack.

To get right down to the present case, if instead of making her unrehearsed observation from her car, the juror had made one through a window of the jury room, in or out of the presence of the other jurors and whether from a perch on a chair or while in a Crouch that roughly simulated the angle of vision described by the police officer — or if a Judge trying a case without a jury essayed the same thing in chambers — can it be said the jury verdict or judicial decision must be invalidated? We all take renewed notice of everyday things when there is special reason to do so; so, it would be nothing less than natural for triers of facts, while a question as to what was observable from a car was yet fresh in mind, to be conscious, and therefore more than usually observant, of what was to be seen from their own vehicles, perhaps even as they were driving home from the courthouse. Similarly, jurors exposed to a courtroom description of reckless driving would not only be more likely to operate their own vehicles more carefully immediately thereafter, but also, at least for the nonce, could be expected to be more critical of others on the highway.

Or, suppose they had just heard testimony concerning a traumatically induced limitation of motion of a litigant’s limb or of a narrowing of the scope of a party’s peripheral vision. Would they not be likely to examine and make comparisons with their own perhaps atypical ranges of motion, doing so not infrequently even while the witness is still on the stand? Would these then be objectionable new "experiences”? And, if they are, how do we distinguish them from those enjoyed in the past by jurors who are so aware of themselves and their environment that, for instance, they already know the views from their cars, the poor driving habits of other motorists or the peculiarities of their own bodies?

Now, there is no reason to believe that her fellow jurors were unaware of the unscientific, informal, unplanned nature of the juror’s observation here, and that it was made at a different time and place, of a different car and driver, from a different make of vehicle and in different circumstances from those that prevailed when the police viewed the defendant. If she had not made these distinctions clear herself they could hardly have been lost on the others. For, it is a mistake to underestimate the intelligence of a jury, which, when all is said and done, is a collective body with the unique advantage of having the brightest of 12 or 6 minds, as the case may be, at its disposal at all times. Instead, whatever she had to say undoubtedly ranked no higher than the experience-based arguments that inevitably punctuate jury deliberations. Under all these circumstances, by no means can it be equated with the re-enactment of the event either in whole or in part.

Accordingly, we should indorse the Appellate Division’s wise view that the juror was but "spontaneously dr[awing] on a common everyday situation with which she was familiar, in order to test the detective’s veracity”. For, our failure to do so will either help sap the jury system of its vitality or encourage the blinking of normal and sensible conduct, efforts to suppress which can be expected in the end to but fall of their own weight.

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

Order reversed, etc.


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    In the Matter of Incorporated Village of Lynbrook, Appellant-Respondent, v New York State Public Employment Relations Board, Respondent-Appellant. Lynbrook Police Benevolent Association, Intervenor-Respondent-Appellant. (And Another Title.)
    Argued September 4, 1979;
    decided November 27, 1979

      POINTS OF COUNSEL

      Thomas M. Lamberti and Gerard Fishberg for appellant-respondent.
    I. The Police Benevolent Association’s demand for termination pay to retirees is an illegal subject of negotiation. (Matter of City of Albany v Helsby, 48 AD2d 998, 38 NY2d 778; Matter of Giannettino v McGoldrick, 295 NY 208; Kieran

      v Hunter Coll. Retirement Bd., 255 App Div 378; Matter of Weber v Levitt, 41 AD2d 452, 34 NY2d 797; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Lecci v Nickerson, 63 Misc 2d 756.) II. Payment of termination pay to retirees for the years of service after June 1, 1973 under agreements concluded after May 31, 1973 is illegal. III. The PBA demand for a continuation of benefits clause is an illegal subject of negotiation. (Matter of Niagara Wheatfield Administrators Assn. [Niagara Wheatfield Cent. School Dist.], 44 NY2d 68; Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753.) IV. The PBA demand for hospitalization insurance for families of police officers who retire is an illegal subject of negotiation.

      Jerome Thier and Martin L. Barr for respondent-appellant.
    I. The State Public Employment Relations Board has broad powers to interpret and construe the statutory scheme of the Taylor Law. Its interpretation must be sustained if it is a legally permissible one. (Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of City of Albany v Helsby, 38 NY2d 778; Matter of International Assn. of Firefighters of City of Newburgh, Local 589 v Helsby, 59 AD2d 342, 43 NY2d 649; Matter of City of New Rochelle v Crowley, 61 AD2d 1031; Matter of Fisher [Levine], 36 NY2d 146.) II. Termination pay and hospitalization insurance for the families of present employees who die after retirement are not prohibited subjects of bargaining by virtue of the provisions of subdivision 4 of section 201 of the Civil Service Law. (New York Public Interest Research Group v City of New York, 89 Misc 2d 262, 63 AD2d 926; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Matter of Weber v Levitt, 41 AD2d 452, 34 NY2d 797; Kranker v Levitt, 30 NY2d 574; Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753; New York City Omnibus Corp. v Quill, 189 Misc 892, 272 App Div 1015, 297 NY 832; Upholsterers’ Int. Union of North Amer., AFL-CIO v American Pad & Textile Co., 372 F2d 427.) III. A continuation of benefits clause is a mandatory subject of negotiation. (Matter of Niagara Wheatfield Administrators Assn. [Niagara Wheatfield Cent. School Dist.], 54 AD2d 498.)

      Robert I. Kurtz for intervenor-respondent-appellant.
    I. Termination pay as provided in the 1974-1975 contract is not a retirement benefit. Therefore, it is not within the scope of either subdivision 4 of section 201 of the Civil Service Law or section 470 of the Retirement and Social Security Law. (Lecci v Nickerson, 63 Misc 2d 756.) II. A public employer may not unilaterally withdraw an employee benefit which has been previously enjoyed by the employees.

      Bernard T. King and James R. La Vaute for American Federation of State, County and Municipal Employees, New York Council 66, AFL-CIO, amicus curiae.

    I. Hospitalization insurance for retirees is not a "retirement benefit” within the meaning of subdivision 4 of section 201 of the Civil Service Law. (Kleinfeldt v New York City Employees’ Retirement System, 36 NY2d 95; Matter of City of Albany v Helsby, 48 AD2d 998, 38 NY2d 778.) II. A finding that hospitalization insurance for retirees’ families is a retirement benefit prohibited by subdivision 4 of section 201 of the Civil Service Law conflicts with other statutory provisions allowing payment of hospitalization benefits for retirees and their families. III. If hospitalization insurance benefits are retirement benefits, their negotiation is allowable pursuant to section 470 of the Retirement and Social Security Law and section 6 of chapter 625 of the Laws of 1975 as most recently amended by section 8 of chapter 464 of the Laws of 1978. (Matter of City of Albany v Helsby, 48 AD2d 998, 38 NY2d 778.)
   OPINION OF THE COURT

Fuchsberg, J.

We hold that the State Public Employment Relations Board (PERB) did not abuse its discretion or act in an arbitrary or capricious manner when it determined that, notwithstanding the provisions of the 1973 amendment to subdivision 4 of section 201 of the Civil Service Law, demands for (1) severance pay keyed in amount to the number of years of employment and (2) hospitalization insurance benefits for families of current employees who die after retirement are not prohibited subjects of collective bargaining in the public sector.

This consolidated article 78 proceeding was born of cross complaints filed with PERB by the Village of Lynbrook and the Lynbrook Police Benevolent Association (PBA). Each side alleged the other had failed to negotiate in good faith as to terms and conditions for renewal of their collective bargaining agreement. PBA also accused the village of failing to preserve the status quo during negotiations by refusing to continue to honor the expired contract’s provision of termination pay for police personnel who chose to retire after 20 years of service (see, generally, Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753 [discussing the "Triborough doctrine”]). The village contended that the PBA proposals on termination pay and hospitalization insurance were barred from the bargaining table by subdivision 4 of section 201, and it charged the police with bad faith in pressing for their consideration.

As presently formulated, the statute excludes "benefits provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees, or payment to retirees or their beneficiaries” from the definition of "terms and conditions of employment”. It goes on flatly to state, "No such retirement benefits shall be negotiated pursuant to this article, and any benefits so negotiated shall be void”. Though • the conceded purpose of the legislation was to help government employers hold down the spiraling cost of pension benefits (see Governor’s Memorandum, NY Legis Ann, 1973, p 303), the PBA argues that it should not be applied so as to frustrate the policy of this State favoring collective bargaining in public employment (see Local 456 Int. Brotherhood of Teamsters v Town of Cortlandt, 68 Misc 2d 645, 651 [Marbach, J.]; see, also, Ruffo, Residue of Sovereignty in New York Public Employment, 39 Albany L Rev 165).

In essence, PERB adopted the PBA’s position on all issues, ordering the parties to resume their negotiations on this basis. But, the Appellate Division, while it confirmed the board’s determination as to termination pay, dismissed that aspect of the proceeding involving the hospitalization benefits, finding them to be nonnegotiable "retirement benefits”. One Justice, in a partial dissent, would have gone further; he expressed the view that the termination pay item was subject to the same disqualification. For the ensuing reasons, PERB should be upheld.

We emphasize at the outset the narrowness of our inquiry. The scope of our review of PERB’s interpretation of the Civil Service Law is a limited one. Simply stated, unless the board’s determination was "afiected by an error of law” or was "arbitrary and capricious or an abuse of discretion”, we will not interfere (CPLR 7803, subd 3). For, "[s]o long as PERB’s interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation” (Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50). As the agency charged with implementing the fundamental policies of the Taylor Law, the board is presumed to have developed an expertise and judgment that requires us to accept its construction if not unreasonable (see Matter of Fisher [Levine], 36 NY2d 146, 149-150; Matter of West Irondequoit Teachers Assn. v Helsby, supra, pp 50-51; Matter of Howard v Wyman, 28 NY2d 434, 437-438; Civil Service Law, §§ 200, 205).

In ruling that termination pay was not a "retirement benefit” forbidden by subdivision 4 of section 201, PERB reasoned not only that the award would be made to employees who terminate their services for reasons other than retirement, but that, since it would be in one lump sum geared to the length of tenure, it represents deferred compensation for services rendered, as opposed to the continuing, open-ended obligation of a pension. This result was one permissible for it to reach under a statute whose imprecise language and unrevealing legislative history afford but meager guidance to an agency called upon to distinguish negotiable benefits from those that are prohibited.

Moreover, in so concluding, PERB expressly relied upon Board of Educ. v Associated Teachers of Huntington (30 NY2d 122, 128) and Matter of Weber v Levitt (41 AD2d 452, affd on opn below 34 NY2d 797, cert den 419 US 997), two recent decisions of this court. In Huntington, we held that a lump-sum retirement incentive was not a feature of a "retirement system”, which section 113 of the Retirement and Social Security Law forbade the municipality to create, because it was compensation for services actually rendered. Likewise, in Weber, we endorsed a holding that deemed computation of termination pay on the basis of the length of employee service a persuasive indication that it represented compensation for services performed year to year rather than solely in the year it was paid; accordingly, we supported a prorating of such sums in calculating the employee’s pension base (see Retirement and Social Security Law, § 302, subd 9). It therefore cannot be said that the distinction made by PERB in the present case is either irrational or so contrary to public policy as to be "legally [im]permissible” (cf. Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-617; see, generally, Ruffo, Sovereignty Revisited and Muddled in New York Public Employment, 416 NYS2d, Advance Sheet No. 2, June 27, 1979, p 31).

PERB’s determination that hospitalization benefits are negotiable is also free from the taint of irrationality and legal interdiction. It could reasonably have concluded that this item, which is becoming an increasingly common term of employment in this country, constituted neither "payments to a fund or insurer to provide an income for retirees” nor "payment to retirees or their beneficiaries” (see Civil Service Law, § 201, subd 4). For here the PBA requested only contributions to an insurer to provide hospitalization beneñts. Moreover, it seems clear on its face that such insurance, especially to protect those whose intimate dependency on an employee make their concern his concern, is not brought within the common understanding of the general statutory term "retirement benefits” merely because the plan would continue in effect after current employees retire.

Further, to the extent that the purpose of subdivision 4 of section 201 was to insulate public employers from pension demands incorporating open-ended escalation factors, the bargaining process itself provides a similar safeguard here where no constitutional provision prohibits the abrogation of such benefits in future contract years (cf. Cook v City of Binghamton, 48 NY2d 323). And finally, since the Civil Service Law itself establishes just such a plan for employees and retired employees of local governments (Civil Service Law, § 163, subd 4; see, also, General Municipal Law, § 92-a), it would be odd, to say the least, for the Legislature to have wished to blunt the force of these independent provisions without a telltale declaration of its purpose (cf. Congregation Kollel Horabonim v Williams, 48 NY2d 301).

In sum, we conclude that PERB’s determinations were neither irrational, unreasonable nor otherwise affected by an error of law, and therefore the order of the Appellate Division should be modified so as to confirm those determinations in their entirety.

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

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

      . In public employment law, "prohibited” subjects are those forbidden, by statute or otherwise, from being embodied in a collective bargaining agreement. "Mandatory” subjects are those over which employer and employees have an obligation to bargain in good faith to the point of impasse. "Permissive” subjects are those as to which either side may, but is not obligated to bargain; though neither party must continue to bargain on a permissive issue to the point of impasse, once it becomes the subject of an agreement, it is fully binding.

      . A bilateral refusal to negotiate in good faith as to the terms and conditions of employment may be deemed both an "improper employer practice” and an "improper employee organization practice” (Civil Service Law, § 209-a, subd 1, par [d]; subd 2, par [b]).

      . [2] We observe that the "continuation of benefits clause” under which the terms of the negotiated contract would continue in effect past the date of its expiration and until a successor agreement was signed falls directly within the compass of Matter of Niagara Wheatfield Administrators Assn. (Niagara Wheatfield Cent. School Dist.) (44 NY2d 68). That ruling, which answers in the affirmative the question whether such a clause is a mandatory subject of negotiation, effectively removes this issue from the case.

      . The disputed provisions as to termination and hospitalization, as pertinent, follow:
      1. "Termination Pay (Lump Sum at Retirement) * * * An employee * * * shall be entitled to cash payment for accumulated terminal leave computed on an entitlement basis of five (5) days for each year of completed service.”
      2. "Hospitalization (Deceased Employees) * * * If an active employee with one (1) or more years of service or a retired employee deceases, his * * * spouse shall be given the [same hospitalization] benefit * * * until she re-marries, and the employee’s children shall be given the benefit of this section until the age of nineteen (19) years unless attending college, in which case the age limit shall be twenty-three (23) years, or specifically qualified because of mental retardation, etc., in which case there shall be no age limit.”

      . The only exception was as to so much of the hospitalization clause as purported to cover dependents of employees no longer in the service of the village (i.e., by reason of death or retirement) at the time the old contract expired. PERB reasoned that Lynbrook was under no obligation to negotiate as to persons who no longer were public employees. No challenge to that determination has been mounted in the courts.

      . We note that PERB’s holding is consistent with as entrenched a practice of American employment as awarding severance pay. A recent sample of employment contracts covering 6.7 million workers reveals that almost one third, representing 2.5 million workers, provided some form of severance or termination allowance (US Department of Labor, Bureau of Labor Statistics, Bulletin No. 2013, Characteristics of Major Collective Bargaining Agreements, July 1, 1976).

      . A sample of collective bargaining agreements arrived at in New York State in 1977 indicates that 87.5% provided for the addition of health and welfare fringe benefits or for a change in the terms of existing plans (NY State Department of Labor, 1977 Annual Report — Collective Bargaining Settlements in New York State, p 31).


text:
    The People of the State of New York, Respondent, v Joseph Illardo, Appellant.
    Argued October 10, 1979;
    decided November 27, 1979

      POINTS OF COUNSEL

      Paul J. Cambria, Jr., and Herald Price Fahringer for appellant.
    I. Appellant has standing, as a matter of law and fact, to challenge the constitutionality of article 235 under traditional doctrines, and particularly where, as here, special rules of standing apply. (Calderon v City of Buffalo, 61 AD2d 323; N. A. A. C. P. v Button, 371 US 415; Gooding v Wilson, 405 US 518; Coates v City of Cincinnati, 402 US 611; Plummer v City of Columbus, 414 US 2; Baggett v Bullitt, 377 US 360; United States v Raines, 362 US 17; N. A. A. C. P. v Alabama, 357 US 449; Grayned v City of Rockford, 408 US 104; Speiser v Randall, 357 US 513. II. Section 235.05 and subdivisions 1 and 2 of section 235.15 of the Penal Law suffer from the vice of vagueness, violate equal protection, and suffer from unconstitutional overbreadth. (People v Heller, 33 NY2d 314; Miller v California, 413 US 15; Stanley v Georgia, 394 US 557; Smith v Goguen, 415 US 566; Papachristou v City of Jacksonville, 405 US 156; United States v Harriss, 347 US 612; Musser v Utah, 333 US 95; United States v Brewer, 139 US 278; Winters v New York, 333 US 507; Grayned v City of Rockford, 408 US 104.) III. Since section 235.15 is unconstitutional on its face and as applied herein, section 235.05 must as well be declared unconstitutional because in the absence of the former provision, the intent of the Legislature would be frustrated, and the general obscenity proscription would be overly broad. (Martin v City of Struthers, 319 US 141; Griswold v Connecticut, 381 US 479; Lamont v Postmaster Gen., 381 US 301; Winters v New York, 333 US 507; People v Abrahams, 40 NY2d 277; People v Berck, 32 NY2d 567; People v Tannenbaum, 18 NY2d 268; Bookcase, Inc. v Broderick, 18 NY2d 71; People v Bookcase, Inc., 14 NY2d 409; People v Diaz, 4 NY2d 469.)

      Edward C. Cosgrove, District Attorney (John De Frank and Judith Blake Manzella of counsel), for respondent.
    I. The language of subdivision 1 of section 235.15 is sufficiently clear as to be constitutional. (United States v Harriss, 347 US 612; Colten v Kentucky, 407; People v Berck, 32 NY2d 567; Matter of Shattuck, 193 NY 446; Merritt-Chapman & Scott Corp. v Public Utility Dist. No. 2, 319 F2d 94; Republic of Finland v Town of Pelham, 26 AD2d 35; New York City Tr. Auth. v Loos, 2 Misc 2d 733, 3 AD2d 740; Brush v Commissioner, 300 US 352; Miller v California, 413 US 15.) II. Subdivision 2 of section 235.15 does not violate the principle of equal protection of the law. (Lindsley v Natural Carbonic Gas Co., 220 US 61; Reed v Reed, 404 US 71; Guano Co. v Virginia, 253 US 412.) III. Subdivisions 1 and/or 2 of section 235.15, if vague or discriminatory, are severable from section 235.05. (Matter of Ahern v South Buffalo Ry. Co., 303 NY 545, 344 US 367; People v Heller, 33 NY2d 314; Astro Cinema Corp. v Mackell,

      422 F2d 293; Mishkin v New York, 383 US 502; Milky Way Prods. v Leary, 305 F Supp 288, affd sub nom. New York Feed Co. v Leary, 397 US 98; Matter of McGlone, 258 App Div 596; People v Mancuso, 255 NY 463; People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48; People v Abrahams, 40 NY2d 277.)

      Robert Abrams, Attorney-General (Shirley Adelson Siegel and John J. Warner, Jr., of counsel), in his statutory capacity under section 71 of the Executive Law.
    Section 235.15 of the Penal Law is neither so vague in its language nor so invidiously discriminatory in its classification scheme as to render it constitutionally void. (Nettleton Co. v Diamond, 27 NY2d 182; Fenster v Leary, 20 NY2d 309; Matter of Van Berkel v Power, 16 NY2d 37; I. L. F. Y. Co. v Rent Comm., 10 NY2d 263, 369 US 795; Lehnhausen v Lake Shore Auto Parts Co., 410 US 356; People v Kupprat, 6 NY2d 88; Lindsley v Natural Carbonic Gas Co., 220 US 61; People v Byron, 17 NY2d 64; Whitfield v Simpson, 312 F Supp 889; United States v Petrillo, 332 US 1.)
   OPINION OF THE COURT

Fuchsberg, J.

We uphold in this case the affirmative defense provisions of the New York obscenity statute (Penal Law, § 235.15, subds 1, 2) against a constitutional attack brought on the grounds of due process and equal protection.

Appellant Joseph Illardo was charged in an information with the knowing promotion of obscene material for selling a magazine entitled Puritan to a plainclothes police officer (Penal Law, § 235.05, subd l). As a result of preliminary judicial screening, it was determined that the magazine in fact was obscene within the meaning of section 235.00, a finding appellant does not contest for the purpose of his assault on the accusatory instrument. Instead, in moving to dismiss the information he relies on the contention that the affirmative defense provisions of section 235.15 are constitutionally infirm and that, because these provisions could not be severed from the remainder of the statute, the defect renders the proscription in section 235.05 invalid as well. In passing we also note that, at least at this stage, defendant has mounted no such attack against the rest of the statute and we therefore have no occasion to deal with it here.

The motion to dismiss was granted by the Buffalo City Court, which declared both subsections unconstitutional. On the People’s appeal to the Erie County Court, the order was reversed on the law. This appeal, in turn, is now here by reason of a grant of leave by a Judge of this court pursuant to CPL 460.20. For the reasons which follow, we believe the information should be upheld.

Turning at once to the challenged statute itself, subdivision 1 of section 235.15 provides that it is an affirmative defense if the "allegedly obscene material was disseminated * * * [to] persons or institutions having scientific, educational, governmental or other similar justification for possessing or viewing the same.” Appellant’s claim is that each of the adjectives, "scientific”, "educational” and "governmental”, and, especially, the phrase "other similar justification” are so imprecise as to render this section void for vagueness. With respect to subdivision 2 of section 235.15 of the Penal Law, which affords another affirmative defense to certain nonmanagerial employees of motion picture theatres, appellant argues the exclusion of bookstore employees like himself violates equal protection.

Mindful of the presumption of constitutionality overlaying duly enacted statutes (People v Pagnotta, 25 NY2d 333, 337), we first address the contention that subdivision 1 violates due process by " 'fail[ing] to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden’ ” (Papachristou v City of Jacksonville, 405 US 156, 162, citing United States v Harriss, 347 US 612, 617). Indeed, the constitutional requisite that a statute be "informative on its face” (People v Firth, 3 NY2d 472, 474) serves not only to assure that citizens can conform their conduct to the dictates of law but, equally important, to guide those who must administer the law (see People v Berck, 32 NY2d 567, 569-570; Smith v Goguen, 415 US 566, 572-575; Interstate Circuit v Dallas, 390 US 676, 689). As common sense and experience both tell us, unless by its terms a law is clear and positive, it leaves virtually unfettered discretion in the hands of law enforcement officials and thereby may encourage arbitrary and discriminatory administration.

However, the quest for definiteness does not preclude the Legislature from using ordinary terms to express ideas that find adequate interpretation in everyday usage and understanding (People v Byron, 17 NY2d 64, 67; see People v Cruz, 48 NY2d 419). For, "Condemned to the use of words, we can never expect mathematical certainty from our language” (Grayned v City of Rockford, 408 US 104, 110 [Marshall, J.]). Recognizing reality, the Constitution therefore does not require impossible standards; it is enough that the language used " 'conveys sufficiently definite warnings as to the proscribed conduct when measured by common understanding and practices’ ” (Miller v California, 413 US 15, 27-28, n 10, quoting Roth v United States, 354 US 476, 491-492; see Trio Distr. Corp. v City of Albany, 2 NY2d 690, 696).

Saying so, we nevertheless appreciate that, where First Amendment rights are involved, to forestall the possibility of inhibiting the exercise of free speech, a statute’s imprecision may not be lightly overlooked (Grayned v City of Rockford, supra, at p 109). But, it is now established doctrine that obscene matter falls outside the scope of the First Amendment (Roth v United States, supra), and thus the amendment plays at best a peripheral role in the scrutiny of the statute, prohibiting as it does the promotion of the material it describes. And, where the statute deals not with a proscription itself but, instead, with affirmative defenses, statutory provisions which become relevant only after an arrest is made and charges are filed, any uncertainty in its terms is far less likely to be an inducement to irresponsible law enforcement.

Against this background, we proceed to examine subdivision 1 of section 235.15 in detail. The language of the section, we note, is taken almost verbatim from the Model Penal Code (§ 251.4, subd 3), the drafting of which was neither hasty nor unskilled. As far as the words "scientific”, "educational” and "governmental” are concerned, surely these are within the compass of the ordinary citizen. While their exact definition may vary with the lexicon consulted, through daily usage the words have acquired a definite import. In this respect, these may be expressions of which it can be said that their explication proves far more troublesome than each of the words standing alone; to the “man in the street” they may evoke a reliable, if visceral, response (see Jacobellis v Ohio, 378 US 184, 197 [“I know it when I see it”, Stewart, J.]). So, avoiding a mere stringing of synonyms, we prefer to await the results of judicial construction of these words after exploration in plenary proceedings (see, e.g., Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87, 94 [interpreting "educational” within the Real Property Tax Law (§ 421, subd 1) to refer to "the development of faculties and powers and the expansion of knowledge by teaching, instruction or schooling”]).

For our purposes here it suffices to examine these words in juxtaposition with some analogous terms that appear in the definition of obscenity itself. As formulated in Miller v California (413 US 15, supra) and subsequently by our Legislature in section 235.00 (subd 1, par [c]) of the Penal Law, obscene material, inter alia, must be said to lack "serious literary, artistic, political or scientific value”. Patently, the term “scientific”, therefore, cannot be said to be so vague in meaning as to deny due process. Nor are the terms "literary”, "artistic” and "political” any more or less precise than the words "governmental” and "educational” in subdivision 1 of section 235.15. Rather, if anything, the wording of the obscenity test would seem on its face to introduce yet another subjective element by prefacing the terms with the qualifier "serious”. Nevertheless, though there may be imaginable instances in which some difficulty in determining on which side of the line a particular fact situation falls, this alone does not render the statute’s language impermissibly vague (see Miller v California, 413 US, at pp 27-28, supra; People v Heller, 33 NY2d 314, 329); the reasoning is certainly no less applicable when the language defines not a criminal offense but an affirmative defense.

However, as indicated, the statute does not stop after reciting the possibilities that the purchaser of obscene material may have a "scientific, educational [or] governmental” justification. It goes on to permit the affirmative defense in circumstances presenting "other similar justification”, a phrase which appellant labels "irredeemably vague”. But, in our view the phrase obviously represents no more than a common drafting technique designed to save the Legislature from spelling out in advance every contingency in which the statute could apply (see People v Klose, 18 NY2d 141, 145). For, when foreseeable circumstances are too numerous or varied for particular enumeration, the Legislature, employing the familiar principles of "ejusdem generis” may permissibly rely on the courts to give content to the phrase.

Under that canon of statutory construction, the phrase "other similar justification”, though susceptible of a wide interpretation, becomes one limited in its effect by the specific words which precede it; in the vernacular, it is known by the company it keeps (McKinney’s Cons Laws of NY, Book 1, Statutes, § 239). Relying on this principle, courts have had no problem construing similar phrases as encompassing or excluding situations that do not fall within the specifically described terms of a statute.

Likewise, in the case before us, the final clause in subdivision 1 of section 235.15 does not expand the scope of the section beyond the three specifically listed terms. Rather, the phrase "other similar justification” should be viewed as "graying the edges” of each of the enumerated justifications so that, in circumstances which reasonably can be thought to be within its embrace, the defense may nonetheless be available. Also, one can readily conceive of a seller raising a defense that the purchaser was serving some legitimate therapeutic or diagnostic purpose related to problems of human sexuality or, again purely by way of illustration, that the purchaser was engaged in a research project relating to perceptions of male/ female sex roles; each might be considered a circumstance which, strictly speaking, would not fit within conventional concepts of what is "scientific”, "governmental” or "educational”. Our function today, however, is not to pass on the validity of section 235.15 in hypothetical situations, but rather to decide whether the phrase "other similar justification” complies with the dictates of due process. As indicated, we find that it does.

Accordingly, we next focus, albeit more briefly, on subdivision 2 of section 235.15, which appellant would have us declare violative of equal protection. In pertinent part, this section makes it an affirmative defense to an obscenity prosecution that the person charged was employed as "a motion picture projectionist, stage employee or spotlight operator, cashier, doorman, usher, candy stand attendant, porter or in any other non-managerial or non-supervisory capacity in a motion picture theatre; provided he has no financial interest, other than his employment, which employment does not encompass compensation based upon any promotion of the gross receipts, in the promotion of obscene material for sale, rental or exhibition or in the promotion, presentation or direction of any obscene performance, or is in any way responsible for acquiring obscene material for sale, rental or exhibition”.

The purpose of this section, a provision common in substance to the obscenity statutes of several other States, is to afford a defense to those who function merely as employees, while withholding penal sanctions for those whose financial stake in the enterprise dictates that they bear the brunt of criminal responsibility (see Obscenity Law Project, 52 NYU L Rev 810, 896-897). Appellant’s challenge boils down to a claim that the statutory classification, embracing the class of non-managerial motion picture theatre employees but not similarly situated employees of adult bookstores is underinclusive to a fatal degree.

The equal protection clause of the Fourteenth Amendment, however, is not violated so long as the legislative classification is not arbitrary and can be said to bear a fair and substantial relation to some manifest evil reasonably perceived by the Legislature (see Town of Huntington v Park Shore Country Day Camp, 47 NY2d 61, 66; Williamson v Lee Opt. Co., 348 US 483, 489). That means that "If the classification has some 'reasonable basis’, it does not offend the Constitution simply because [it lacks] '* * * mathematical nicety or because in practice it results in some inequality’ ” (Dandridge v Williams, 397 US 471, 485, quoting Lindsley v Natural Carbonic Gas. Co., 220 US 61, 78; see Matter of Levy, 38 NY2d 653, 658-661; Matter of Figueroa v Bronstein, 38 NY2d 533, 535-536).

In applying these standards of rationality, one need not contest the fact that an employee of a bookstore may lack financial responsibility and control over business operations to the same extent as does an employee of a motion picture theatre in order to find a reasonable basis for the distinction. Unlike a theatre, in which patrons view the film in enclosed surroundings, and do not take possession of the film for circulation elsewhere, a bookstore, once it sells obscene matter, frees it for subsequent distribution by the original purchasers. The Legislature, therefore, conceivably could have viewed this risk of further dissemination as indicative of aggravated culpability, thereby justifying a greater deterrent in the form of denial of the affirmative defense to bookstore employees (see Wheeler v State, .281 Md 593, 611-612 [Murphy, Ch. J., dissenting]). Or, as an alternative basis for the difference in its treatment of these classes of defendants, the Legislature, rightly or wrongly, may have thought it more probable that the typical motion picture theatre would employ a larger percentage of nonmanagerial or nonsupervisory personnel than would the typical adult bookstore, and so have drawn the boundaries of the affirmative defense accordingly. The statute might thus permissibly be seen as "addressing itself to the phase of the problem which seems most acute to the legislative mind” (Williamson v Lee Opt. Co., 348 US 483, 489, supra).

One reason or the other, it is not our function to decide whether the line of demarcation the Legislature selected was unwise, or that its purpose could better have been achieved in another way, or even that it would be ineffective to accomplish its end. So long as it has a rational basis, it is not for us, but was for those who enacted the statute to choose the particular course that was taken. On this basis, bearing in mind the heavy burden appellant must shoulder to demonstrate the statute’s invalidity, we cannot say that the classification, without more, must fall to appellant’s constitutional challenge.

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

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

Order affirmed.

      . The text of the statute reads:
      "A person is guilty of obscenity in the second degree when, knowing its content and character, he:
      "1. Promotes, or possesses with intent to promote, any obscene material”.

      .  The fact that appellant has not yet proceeded to trial does not divest him of standing to raise the statutory affirmative defenses. The moment the prosecution against him was mounted, appellant gained the right to rely on any legitimate defense, including those incorporated in section 235.15.

      . Amended in 1974 to reflect Miller’s standards, the statute reads: "Any material or performance is 'obscene’ if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, sodomy, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.”


author: Wachtler, J.

text:
    The People of the State of New York, Appellant, v Hector Cruz, Respondent.
    Argued October 11, 1979;
    decided November 20, 1979

      POINTS OF COUNSEL

      Mario Merola, District Attorney (David H. Fromm and Alan D. Marrus of counsel), for appellant.
    I. Subdivisions 1 and 3 of section 1192 of the Vehicle and Traffic Law, which prohibit a person from operating a motor vehicle "while his ability to operate such vehicle is impaired by the consumption of alcohol” and "while he is in an intoxicated condition”, are not unconstitutionally vague. (United States v Channel, 423 F Supp 1017; People v La Plante, 81 Misc 2d 34; People v Graser, 90 Misc 2d 219; People v Kapsuris, 89 Misc 2d 634; People v Jones, 77 Misc 2d 33; United States v Harriss, 347 US 612; Nash v United States, 229 US 373; Nik-O-Lok Co. v Carey, 52 AD2d 375, 40 NY2d 1089; People v Farmer, 36 NY2d 386; People v Miller, 83 Misc 2d 118.) II. Subdivisions 1 and 3 should be interpreted to resolve any doubt about their constitutionality. (Connally v General Constr. Co., 269 US 385; People v Smith, 44 NY2d 613; People v Pagnotta, 25 NY2d 333; People v Byron, 17 NY2d 64; People v Firth, 3 NY2d 472; People v Broadie, 37 NY2d 100, 423 US 950; People v Finkelstein, 9 NY2d 342; Screws v United States, 325 US 91.)

      Thomas H. Busch, William E. Hellerstein and Alicia Kaplow for respondent.
    I. The court below correctly held that subdivisions 1 and 3 of section 1192 of the Vehicle and Traffic Law are unconstitutionally vague in violation of due process of law (US Const, 14th Arndt; NY Const, art I, § 6). (Grayned v City of Rockford, 408 US 104; Giaccio v Pennsylvania, 382 US 399; People v Smith, 44 NY2d 613; Lanzetta v New Jersey, 306 US 451; Connally v General Constr. Co., 269 US 385; People v Scott, 26 NY2d 286; People v Firth, 3 NY2d 472; People v Graser, 90 Misc 2d 219; People v Barrett, 89 Misc 2d 631; People v Bradford, 96 Misc 2d 298.) II. The information, by charging respondent with violating section 1192 of the Vehicle and Traffic Law without specifying one of its subdivisions in any manner, violated CPL 100.15 and the constitutional right to due process of law (US Const, 14th Arndt; NY Const, art I, § 6). (People v Iannone, 45 NY2d 589; People v Farmer, 36 NY2d 386; People v Fletcher Gravel Co., 82 Misc 2d 22; People v Perlman, 89 Misc 2d 973.)

      Robert Abrams, Attorney-General (Joseph J. Micare and Shirley Adelson Siegel of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. The Legislature has the power to deal with the problem of highway accidents caused by drinking drivers by penalizing "impairment” of ability to drive due to consumption of alcohol. "Impairment”, a lesser degree of "intoxication” can be proven and is not unconstitutionally vague. (Boyce Motor Lines v United States, 342 US 337; Connally v General Constr. Co., 269 US 385; People v Smith, 44 NY2d 613; People v Firth, 3 NY2d 472; United States v Power, 423 US 87; Miller v California, 413 US 15; People v Barrett, 89 Misc 2d 631; People v Morris, 63 Misc 2d 124; People v Belcher, 302 NY 529; People v Weaver, 188 App Div 395; People v Eastwood, 14 NY 562.) II. "Intoxication” is not unconstitutionally vague. (Matter of Levin, 302 NY 535; People v St. Ours, 54 AD2d 1080.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether subdivision 1 of section 1192 of the Vehicle and Traffic Law, which prohibits driving while the ability to operate a motor vehicle "is impaired by the consumption of alcohol”, and subdivision 3, which prohibits driving "while * * * in an intoxicated condition”, are unconstitutionally vague in a case where the driver has refused to submit to any scientific test for determining the amount of alcohol he has consumed. The trial court held that, in the absence of a scientific test, the statutory concepts of impairment and intoxication were so vague and indefinite as to violate the defendant’s right to due process. The Appellate Term affirmed with one dissent. The People have appealed.

On the evening of January 28, 1978 a police officer observed the defendant driving in an erratic manner on Third Avenue in Bronx County. The officer stopped the defendant after he had driven through a steady red light. As the defendant left his car the officer detected a strong odor of alcohol on his breath. When he asked the defendant to produce his license and registration the defendant threw them at him. The officer then asked the defendant if he had been drinking and the defendant said that he had a couple of drinks. At this point the officer informed the defendant that he was placing him under arrest for "intoxicated driving”. He subsequently asked the defendant if he would take a breathalyzer test but the defendant refused.

The defendant was charged with a misdemeanor for operating a motor vehicle while under the influence of alcohol in violation of section 1192 of the Vehicle and Traffic Law, based solely on the officer’s observations at the time of arrest. In the accusatory instrument the officer noted that he had first observed the defendant driving in an erratic manner and that the "defendant’s eyes were watery and bloodshot, his speech was slurred and the defendant was unsteady on his feet, and his breath bore the odor of alcohol.” At a preliminary hearing the officer also testified that he had shined his flashlight into the defendant’s eyes and observed that "the pupils did not dilate”. It also appears that the defendant was given a coordination test at the police station by another officer who was not called at the hearing.

The defendant made a pretrial motion to dismiss on the grounds that (a) the accusatory instrument was insufficient in that it failed to inform him whether he was being charged with driving while intoxicated or driving while impaired and (b) that subdivisions 1 and 3 of section 1192 of the Vehicle and Traffic Law were unconstitutionally vague.

As noted, the courts below agreed with the defendant’s second contention. They held that the statutory terms, impaired and intoxicated, were too vague and indefinite to satisfy due process requirements when applied to cases where no chemical test results were available. Thus the accusatory instrument was dismissed prior to trial.

It is a fundamental requirement of due process that a criminal statute must be stated in terms which are reasonably definite so that a person of ordinary intelligence will know what the law prohibits or commands (Connally v General Constr. Co., 269 US 385, 391; United States v Petrillo, 332 US 1, 6; People v Smith, 44 NY2d 613; see, generally, Note, The Void-for-Vagueness Doctrine, 109 U of Penn L Rev 67). The concept promotes fairness to the defendant in two respects. First it insures that the defendant will receive adequate warning of what the law requires so that he may act lawfully. "The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed” (United States v Harriss, 347 US 612, 617). Secondly, it serves to prevent arbitrary and discriminatory enforcement by requiring "boundaries sufficiently distinct” for police, Judges and juries to fairly administer the law (United States v Petrillo, supra, p 7; Papachristou v City of Jacksonville, 405 US 156; Grayned v City of Rockford, 408 US 104, 108-109).

But the Constitution only requires reasonable precision; it does not impose "impossible standards” (United States v Petrillo, supra, pp 7-8). Thus "if the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubt might rise” (United States v Harriss, supra, p 618; United States v Petrillo, supra, p 7; United States v Wurzbach, 280 US 396, 399).

In this State the first statute to prohibit driving while "in an intoxicated condition” was adopted in 1910 (L 1910, ch 374, § 290, subd 3; see, also, King and Tipperman, The Offense of Driving While Intoxicated: the Development of Statutory and Case Law in New York, 3 Hofstra L Rev 541, 544). Convictions under that statute could be based solely on the defendant’s conduct and demeanor at the time of arrest. It was not until 1941 that the results of scientific tests for alcohol content were made admissible by statute (L 1941, ch 726, § 1). In 1960 a new offense, driving "while ability is impaired by the consumption of alcohol”, was adopted as a lesser offense than intoxication (L 1960, ch 184, § 1).

Originally, impairment could only be established by scientific proof showing a specific blood alcohol content (see, e.g., People v Bronzino, 25 AD2d 685). This requirement was eliminated, however, in 1970 (L 1970, ch 275; see, also, Governor’s Memorandum, NY Legis Ann, 1970, p 364). Now, whether the defendant is charged with driving while intoxicated or driving while impaired by alcohol, scientific evidence of blood alcohol content, although admissible (Vehicle and Traffic Law, § 1195, subd 1), is not essential. Since the defendant’s consent is required for any blood alcohol analysis (Vehicle and Traffic Law, § 1194, subd 2), the present statutory scheme serves to prevent the defendant from defeating a criminal prosecution for either offense by simply refusing to take the test.

The relevant portion of the current statute (Vehicle and Traffic Law, § 1192), applicable also at the time of the arrest in this case, reads as follows:

"1 No person shall operate a motor vehicle while his ability to operate such motor vehicle is impaired by the consumption of alcohol
* * *
"3 No person shall operate a motor vehicle while he is in an intoxicated condition.”

Driving while the ability to operate a motor vehicle is impaired by the consumption of alcohol is a traffic infraction (Vehicle and Traffic Law, § 155). Driving while intoxicated is a misdemeanor or, in the case of a second conviction within 10 years, a felony (Vehicle and Traffic Law, § 1192, subd 5). Evidence that a defendant had less than .10 of 1% of alcohol in his blood is prima facie evidence that he was not intoxicated (Vehicle and Traffic Law, § 1195, subd 2, pars [a], [b], [c]); if there is a higher percentage of alcohol, a defendant would be guilty of a misdemeanor (Vehicle and Traffic Law, § 1192, subds 2, 5).

Concerning impairment, the statute provides that a reading of more than .07 but less than .10 of 1% of alcohol in the blood is prima facie evidence that a defendant’s ability to operate a vehicle was impaired (Vehicle and Traffic Law, § 1195, subd 2, par [c]). A reading of .05 or less is prima facie evidence that a defendant was not impaired or, of course, intoxicated (Vehicle and Traffic Law, § 1195, subd 2, par [a]).

The lower courts felt that this case disclosed a gap in the legislative scheme. They held that the Legislature had neglected to define impairment or intoxication, except in relationship to the alcoholic content of the blood. Thus they concluded that in cases where no test results are available there are no definite standards to guide the defendant, the police, or the courts in determining whether driving after consuming some alcohol would violate the statute and, if so, to what degree.

With respect to impairment the defendant urges that it is not clear whether the statute prohibits driving when the driver is extremely impaired, only moderately impaired, or even impaired to a slight degree and whether an objective or a subjective standard applies. On its face, however, the statute does not speak of degrees of impairment; it simply prohibits the driving of a motor vehicle when the driver’s "ability to operate such vehicle is impaired” (Vehicle and Traffic Law, § 1192, subd 1). Thus driving a motor vehicle while there is any alcoholic impairment of the driver’s "ability to operate such vehicle” would constitute a violation.

That is not to say, of course, that every person who drinks before driving violates the law. On the contrary the Legislature recognized that the average person can consume a certain amount of alcohol without impairing his ability to operate a motor vehicle as he should. Otherwise the Legislature would not have provided that proof of .05 of 1% or less of blood alcohol content is prima facie evidence that the driver was not impaired or intoxicated (Vehicle and Traffic Law, § 1195, subd 2, par [a]). Of course some persons may find their driving faculties impaired by the least consumption of alcohol and, therefore, would be guilty of driving while impaired while others would not (Vehicle and Traffic Law, § 1195, subd 2, par [a]). And the Legislature also recognized that some individuals may be able to consume greater amounts of alcohol without being impaired, as would the average driver (Vehicle and Traffic Law, § 1195, subd 1, par [c]). Thus the impairment statute, by simply providing prima facie standards, takes into account the "subjective” tolerance of individuals in determining the ability to drive possessed by a defendant at the time of arrest. But in determining whether that ability is less than he should possess, the statute necessarily contemplates the use of the objective standard expected of the average driver. Obviously one cannot defend on the ground that, even when he has consumed no alcohol, he generally drives with less prudence and care than is expected of the average driver.

In sum the prohibition against driving while the ability to do so is impaired by alcohol (Vehicle and Traffic Law, § 1192, subd 1) is not a vague and indefinite concept as the defendant contends. It is evident from the statutory language and scheme that the question in each case is whether, by voluntarily consuming alcohol, this particular defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.

Driving while intoxicated is a more serious offense (Vehicle and Traffic Law, § 1192, subd 5) and thus involves a greater degree of impairment. The courts below held, however, that the line between the two is vague and indefinite because the Legislature failed to provide any verbal definition or standard of comparison. This, it is said, leaves a defendant without any warning as to when he might cross the threshold from mere impairment to intoxication and thus run the risk of a conviction for a more serious offense. In addition, he claims that the absence of guidelines gives law enforcement officers and the courts an impermissible discretion to prosecute and convict for the higher offense.

Although the Legislature did not include a definition of intoxication in the statute, it does not follow that the term is without a definite or ascertainable meaning. Intoxication is not an unfamiliar concept. It is intelligible to the average person (Richardson, Evidence, § 364, pp 332-333). It is familiar to the law and has long been held to mean an incapacity to perform various mental or physical acts which an average person would be able to do. Of course intoxication is a variable term in the sense that a person, despite the consumption of alcohol, may be able to do certain things (for instance, physically operate a motor vehicle), while his ability to do something more demanding (such as operate a motor vehicle safely) may be destroyed. But the standard for determining intoxication is constant; that is, whether the individual’s consumption of alcohol has rendered him incapable of employing the physical or mental abilities needed to, for instance, form a specific intent (People v Koerber, 244 NY 147, 152; see, also, Perkins, Criminal Law, pp 793-794), understand the nature and effect of a contract (Simpson, Contracts, § 79, p 293) or testify truthfully and accurately (Hartford v Palmer, 16 Johns 143).

A statute which employs terms having an accepted meaning "long recognized in law and life” cannot be said to be so vague and indefinite as to afford the defendant insufficient notice of what is prohibited or inadequate guidelines for adjudication (International Harvester Co. v Kentucky, 234 US 216; Nash v United States, 229 US 373, 377; People v Grogan, 260 NY 138; People v Mancuso, 255 NY 463, 470), even though there may be "an element of degree in the definition as to which estimates might differ” (Connally v General Constr. Co., 269 US 385, 391, supra). And words and phrases used in a statute should be given their ordinary meaning when, as here, the Legislature has given no indication that a different meaning was intended (see, e.g., McKinney’s Cons Laws of NY, Statutes, Book 1, § 232). This is particularly apt when it is claimed that the statute might otherwise lack sufficiently definite standards or guidelines to satisfy the requirements of due process (see, e.g., Screws v United States, 325 US 91).

In sum, intoxication is a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.

As noted, the concept of intoxication does not require expert opinion. A layman, including the defendant and those charged with administering the law, should be able to determine whether the defendant’s consumption of alcohol has rendered him incapable of operating a motor vehicle as he should. Thus, even when no chemical test has been made of the driver’s blood alcohol content, the statute provides reasonable warning of what is prohibited and sufficient standards for adjudication.

We therefore conclude that subdivisions 1 and 3 of section 1192 of the Vehicle and Traffic Law are not unconstitutionally vague or indefinite when applied to a case where an analysis of the driver’s blood alcohol content is unavailable.

Accordingly, the order of the Appellate Term should be reversed, the accusatory instrument reinstated and the case remitted to the Criminal Court for further proceedings.

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

Order reversed, etc.

       We note that even if the offenses did overlap it is doubtful that the resulting prosecutorial discretion would offend due process (People v Eboli, 34 NY2d 281). And although constitutional notions of fairness require the notice to the defendant of what is prohibited so that he may act lawfully, the standard is less demanding where questions of degree are involved (see, e.g., Nash v United States, 229 US 373, 377; United States v Wurzbach, 280 US 396, 399, supra). And it may be that fairness would permit even less precise notice when the defendant is not called upon to choose between a lawful act and an unlawful one, but between two unlawful acts of different degrees.