text:
    Vincent N. Trimarco et al., Appellants, v Irving Klein et al., Individually and as Copartners Doing Business as Glenbriar Company, Respondents.
    Argued March 29, 1982;
    decided May 20, 1982

      POINTS OF COUNSEL

      Thomas R. Newman, L. Kevin Sheridan and Louis G. Adolfsen for appellants.
    I. Since plaintiff established a prima facie case of common-law negligence and the evidence supports the jury’s finding that defendants did not exercise reasonable care, the court below should not have disturbed the verdict of liability; certainly it should not have dismissed the complaint. (Sagorsky v Maylon, 307 NY 584; Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376; Cohen v Hallmark Cards, 45 NY2d 493; Stein v Palisi, 308 NY 293; Basso v Miller, 40 NY2d 233; Havas v Victory Paper Stock Co., 49 NY2d 381; Farrell v Royal Crown Bottling Co., 53 NY2d 619; Smith v Arbaugh’s Rest., 469 F2d 97; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Kane v Ten Eyck Co., 10 Misc 2d 398, 267 App Div 789, 292 NY 701.) II. In the event this court finds no common-law negligence, plaintiff should be permitted in the alternative to recover against defendants for breach of the warranty of habitability or strict liability in tort. (Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433; Quinlan v Cecchini, 41 NY2d 686; Part West Mgt. Corp. v Mitchell, 47 NY2d 316; Brownstein v Edison, 103 Misc 2d 316; Kaplan v Coulston, 85 Misc 2d 745; McBride v 218 E. 70th St. Assoc., 102 Misc 2d 279; Curry v New York City Housing Auth., 77 AD2d 534; Segal v Justice Ct. Mut. Housing Coop., 108 Misc 2d 1074; Codling v Paglia, 32 NY2d 330.) III. Evidence was properly received and the jury was properly instructed concerning the relevant statutes. (McCallin v Walsh, 64 AD2d 46, 46 NY2d 808; Hassan v Stafford, 472 F2d 88; Curtis v District of Columbia, 363 F2d 973; Edmonds, Inc. v Vojka, 332 F2d 309; Boston & Maine R. R. v Talbert, 360 F2d 286; Fluor Corp. v Black, 338 F2d 830; Caprara v Chrysler Corp., 52 NY2d 114; Halloran v Virginia Chems., 41 NY2d 386; Letendre v Hartford Acc. & Ind. Co., 21 NY2d 518; Fleury v Edwards, 14 NY2d 334.) IV. The trial court should not have submitted the issue of contributory negligence to the jury. Since there was no proper evidence to support it and, in any event, since plaintiff’s conduct was not unreasonable or imprudent, he cannot be considered negligent. (Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Wolf v City of New York, 39 NY2d 568; Matter of Allstate Ins. Co. [Spadaccini], 52 AD2d 813; Osleeb v Block, 36 AD2d 605; Horn v State of New York, 31 AD2d 364; Matter of Burris v Lewis, 2 NY2d 323; Matter of Riehl v Town of Amherst — Dept. of Highways, 308 NY 212; Blum v Fresh Grown Preserve Corp., 292 NY 241; Matter of Case, 214 NY 199.)

      Norman H. Dachs for respondents.
    I. Plaintiff-appellant failed to establish any actionable negligence on the part of defendants as a matter of law. The complaint was properly dismissed. (Pulka v Edelman, 40 NY2d 781; Collins v Noss, 258 App Div 101; Basso v Miller, 40 NY2d 233; Garthe v Ruppert, 264 NY 290; Levine v Blaine Co., 273 NY 386; Fuchs v Brody, 282 NY 627; Burger v Fifth Ave. Coach Co., 249 NY 583; Lipner v Levy, 44 AD2d 797; Yeargans v Yeargans, 24 AD2d 280; Gustavson v Southern Blvd. R. R. Co., 292 NY 309.) II. Neither the “warranty of habitability” nor the strict liability doctrine is applicable herein. (Curry v New York City Housing Auth., 77 AD2d 534; Snyder v Moore, 72 AD2d 580.) III. The court below correctly held that the receipt in evidence of sections 389-m and 389-o of the General Business Law, despite the avowed purpose for which they were introduced, was error. (Jokelson v Allied Stores Corp., 31 AD2d 200, 806; Curry v New York City Housing Auth., 77 AD2d 534; Carhart v Relmar Operating Corp., 66 AD2d 680; Loeser v Nathan Hale Gardens, 73 AD2d 187; Siivonen v City of Oneida, 33 AD2d 934; Lodato v Town of Oyster Bay, 68 AD2d 904; Hassan v Stafford, 472 F2d 88; Florentine v Church of Our Lady of Mt. Carmel, 340 F2d 239; Gallagher v St. Raymond’s R. C. Church, 21 NY2d 554; Schuster v City of New York, 5 NY2d 75.) IV. Section 78 of the Multiple Dwelling Law is not applicable. (Kitchen v Landy, 215 App Div 586; Israel v Toonkel, 134 Misc 327; Cooperman v Anderson, 158 Misc 155; Block v Balden Realty Co., 129 Misc 906; Boyland v 1986 Grand Ave. Realty Corp., 169 Misc 881.) V. The trial court properly submitted the issue of plaintiff’s contributory negligence to the jury. VI. Plaintiffs’ counsel’s trial tactics constituted reversible error. (Cherry Creek Nat. Bank v Fidelity & Cas. Co. of N. Y., 207 App Div 787; Youngentob v Luongo, 139 Misc 840; Cohon & Co. v Pennsylvania Coal & Coke Corp., 10 AD2d 667; McCabe v Queensboro Farm Prods., 21 AD2d 67 5; Kohlmann v City of New York, 8 AD2d 598; Simpson v Foundation Co., 201 NY 479; Bromberg v City of New York, 25 AD2d 885; Bassi v City of New York, 7 AD2d 713; Williams v Long Is. R. R., 41 AD2d 940; MacDormand v Auchenpaugh, 29 AD2d 1022.)
   OPINION OF THE COURT

Fuchsberg, J.

After trial by jury in a negligence suit for personal injuries, the plaintiff, Vincent N. Trimarco, recovered a judgment of $240,000. A sharply divided Appellate Division having reversed on the law and dismissed the complaint, our primary concern on this appeal is with the role of the proof plaintiff produced on custom and usage. The ultimate issue is whether he made out a case.

The controversy has its genesis in the shattering of a bathtub’s glass enclosure door in a multiple dwelling in July, 1976. Taking the testimony most favorably to the plaintiff, as we must in passing on the presence of a prima facie case, we note that, according to the trial testimony, at the time of the incident plaintiff, the tenant of the apartment in which it happened, was in the process of sliding the door open so that he could exit the tub. It is undisputed that the occurrence was sudden and unexpected and the injuries he received from the lacerating glass most severe.

The door, which turned out to have been made of ordinary glass variously estimated as one sixteenth to one quarter of an inch in thickness, concededly would have presented no different appearance to the plaintiff and his wife than did tempered safety glass, which their uncontradicted testimony shows they assumed it to be. Nor was there any suggestion that defendants ever brought its true nature to their attention.

Undeveloped in the trial record is the source of a hospital record entry which ascribed the plaintiff’s injuries to a “fall through his bathroom glass door”. Obviously, this may have been taken into account by the jury, since its verdict called for a reduction of its $400,000 gross assessment of damages by 40% to account for contributory negligence.

As part of his case, plaintiff, with the aid of expert testimony, developed that, since at least the early 1950’s, a practice of using shatterproof glazing materials for bathroom enclosures had come into common use, so that by 1976 the glass door here no longer conformed to accepted safety standards. This proof was reinforced by a showing that over this period bulletins of nationally recognized safety and consumer organizations along with official Federal publications had joined in warning of the dangers that lurked when plain glass was utilized in “hazardous locations”, including “bathtub enclosures”. Over objection, the trial court also allowed in sections 389-m and 389-0 of New York’s General Business Law, which, enacted in 1972 though effective only as of July 1, 1973, required, on pain of criminal sanctions, that only “safety glazing material” be used in all bathroom enclosures after the effective date; however, the court carefully cautioned the jury that, because the statute did not apply to existing installations, of which the glass in question was one, it only was to be considered “along with all the other proof in this case, as a standard by which you may measure the conduct of the defendants”. And, on examination of the defendants’ managing agent, who long had enjoyed extensive familiarity with the management of multiple dwelling units in the New York City area, plaintiff’s counsel elicited agreement that, since at least 1965, it was customary for landlords who had occasion to install glass for shower enclosures, whether to replace broken glass or to comply with the request of a tenant or otherwise, to do so with “some material such as plastic or safety glass”.

In face of this record, in essence, the rationale of the majority at the Appellate Division was that, “assuming that there existed a custom and usage at the time to substitute shatterproof glass” and that this was a “better way or a safer method of enclosing showers” (82 AD2d, p 23), unless prior notice of the danger came to the defendants either from the plaintiff or by reason of a similar accident in the building, no duty devolved on the defendants to replace the glass either under the common law or under section 78 of the Multiple Dwelling Law. To this the court added that, were it not dismissing, it would have ordered a new trial because, in its view, the admission of the afore-mentioned sections of the General Business Law, even with the reservations attached by the Trial Judge, constituted reversible error.

In a dissenting opinion, Justice Leonard Sandler disagreed on both counts; on the underlying liability issue, he found that the plaintiff had presented a clear question of fact for the jury and, on the evidentiary one stemming from the submission of the General Business Law, after noting that a careful marshaling of authorities had persuaded him that it was a “close question” (82 AD2d, p 28), he opined that whether the statute should have gone to the jury was properly within the Trial Judge’s discretion. Concurring in part and dissenting in part, Justice Arnold Fein, writing separately, took the position that, while there indeed was “ample” evidence of custom and usage to support the plaintiff’s verdict, a new trial was required since the advice to the jury of the contents of the statute, no matter how cushioned by qualifications, “could only be misleading” (82 AD2d, p 30).

For the reasons which follow, we agree with Justice Sandler and Justice Fein that plaintiff established a prima facie case. However, we would not disturb the conclusion of Justice Fein and the majority that the General Business Law did not belong in the case.

Our analysis may well begin by rejecting defendants’ contention that the shower door was not within the compass of section 78 of the Multiple Dwelling Law. From early on, it was understood that this statute was enacted in recognition of the reality that occupants of tenements in apartment houses, notwithstanding their control of the rented premises, as a practical matter looked to their landlords for the safe maintenance of the tenanted quarters as well. The result was that, if responsibility for keeping “every part thereof * * * in good repair” was not placed on the landlords, defects would remain unremedied (Multiple Dwelling Law, § 78; see Altz v Leiberson, 233 NY 16, 19). Therefore, though early cases may have chosen to give the statutory phrase “every part” a restrictive connotation (e.g., Kitchen v Landy, 215 App Div 586 [defective coal stove]; and Boylan v 1986 Grand Ave. Realty Corp., 169 Misc 881 [defective clothes drier]), later cases made clear that the remedial reach of the legislation mandated a more expansive interpretation under which fixtures or appliances furnished by the landlord were found to be within the statutory intendment (Herring v Slattery & Bros., 266 App Div 719, affd 291 NY 794 [defective gas range]; Rosen v 2070 Davidson Ave. Corp., 246 App Div 588, mot for lv to app den 270 NY 676 [defective clothes drier]).

Which brings us to the well-recognized and pragmatic proposition that when “certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that [the one charged with the dereliction] has fallen below the required standard” (Garthe v Ruppert, 264 NY 290, 296). Such proof, of course, is not admitted in the abstract. It must bear on what is reasonable conduct under all the circumstances, the quintessential test of negligence.

It follows that, when proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care (Bennett v Long Is. R. R. Co., 163 NY 1, 4 [custom not to lock switch on temporary railroad siding during construction]), and, contrariwise, when proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability (Levine v Blaine Co., 273 NY 386, 389 [custom to equip dumbwaiter with rope which does not splinter]). Put more conceptually, proof of a common practice aids in “formulating] the general expectation of society as to how individuals will act in the course of their undertakings, and thus to guide the common sense or expert intuition of a jury or commission when called on to judge of particular conduct under particular circumstances” (Pound, Administrative Application of Legal Standards, 44 ABA Rep, 445, 456-457).

The source of the probative power of proof of custom and usage is described differently by various authorities, but all agree on its potency. Chief among the rationales offered is, of course, the fact that it reflects the judgment and experience and conduct of many (2 Wigmore, Evidence [3d ed], § 461; Prosser, Torts [4th ed], § 33). Support for its relevancy and reliability comes too from the direct bearing it has on feasibility, for its focusing is on the practicality of a precaution in actual operation and the readiness with which it can be employed (Morris, Custom and Negligence, 42 Col L Rev 1147, 1148). Following in the train of both of these boons is the custom’s exemplification of the opportunities it provides to others to learn of the safe way, if that the customary one be. (See Restatement, Torts 2d, § 295A, Comments a, b.)

From all this it is not to be assumed customary practice and usage need be universal. It suffices that it be fairly well defined and in the same calling or business so that “the actor may be charged with knowledge of it or negligent ignorance” (Prosser, Torts [4th ed], § 33, p 168; Restatement, Torts 2d, § 295A, p 62, Comment a).

However, once its existence is credited, a common practice or usage is still not necessarily a conclusive or even a compelling test of negligence (1 Shearman & Redfield, Negligence [rev ed], § 10). Before it can be, the jury must be satisfied with its reasonableness, just as the jury must be satisfied with the reasonableness of the behavior which adhered to the custom or the unreasonableness of that which did not (see Shannahan v Empire Eng. Corp., 204 NY 543, 550). After all, customs and usages run the gamut of merit like everything else. That is why the question in each instance is whether it meets the test of reasonableness. As Holmes’ now classic statement on this subject expresses it, “[w]hat usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not” (Texas & Pacific Ry. Co. v Behymer, 189 US 468, 470).

So measured, the case the plaintiff presented, even without the insertion of sections 389-m and 389-o of the General Business Law, was enough to send it to the jury and to sustain the verdict reached. The expert testimony, the admissions of the defendant’s manager, the data on which the professional and governmental bulletins were based, the evidence of how replacements were handled by at least the local building industry for the better part of two decades, these in the aggregate easily filled that bill. Moreover, it was also for the jury to decide whether, at the point in time when the accident occurred, the modest cost and ready availability of safety glass and the dynamics of the growing custom to use it for shower enclosures had transformed what once may have been considered a reasonably safe part of the apartment into one which, in the light of later developments, no longer could be so regarded.

Furthermore, the charge on this subject was correct. The Trial Judge placed the evidence of custom and usage “by others engaged in the same business” in proper perspective, when, among other things, he told the jury that the issue on which it was received was “the reasonableness of the defendant’s conduct' under all the circumstances”. He also emphasized that the testimony on this score was not conclusive, not only by saying so but by explaining that “the mere fact that another person or landlord may have used a better or safer practice does not establish a standard” and that it was for the jurors “to determine whether or not the evidence in this case does establish a general custom or practice”.

Nevertheless, we reverse and order a new trial because the General Business Law sections should have been excluded. True, if a statutory scheme intended for the protection of a particular class, as is the one here, does not expressly provide for civil liability, there is responsible authority for the proposition that a court may, in furtherance of the statutory purpose, read in such an intent (see Martin v Herzog, 228 NY 164, 168; Restatement, Torts 2d, § 286; see, generally, James, Statutory Standards and Negligence in Accident Cases, 11 La L Rev 95). Be that as it may, the fact is that the statutes here protected only those tenants for whom shower glazing was installed after the statutory effective date. Plaintiff was not in that class. Thus, while new installations made during the three-year interval between July 1,1973, the effective date of the new General Business Law provisions, and July, 1976, when plaintiff was injured, could have counted numerically in the totality of any statistics to support the existence of a developing custom to use safety glass, defendants’ objection to the statutes themselves should have been sustained. Without belaboring the point, it cannot be said that the statutes, once injected into the adversarial conflict, did not prejudice the defendants. Nor is it any answer to suggest that balancing the risk of prejudice against the asserted relevancy of the statutes here was a supportable discretionary judicial act. Unlike hearsay, which at times may be rendered admissible by necessity, the other proof of custom here eliminates the possibility of this justification.

For all these reasons, the order should be reversed and a new trial granted. In so ruling, we see no reason for a retrial of the damages issue. Instead, the new trial will be confined initially to the issue of liability and, if plaintiff once again should succeed in proving that defendants were negligent, to the issue of apportionment of fault between the parties (cf. Ferrer v Harris, 55 NY2d 285).

Accordingly, the case should be remitted to Supreme Court, Bronx County, for further proceedings in accordance with this opinion.

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

Order reversed, with costs, and case remitted to Supreme Court, Bronx County, for a new trial in accordance with the opinion herein.

      . The chart had been put in evidence in unredacted form as part of the plaintiff’s medical proof.

      . The organizations included the National Safety Council, the American National Standards Institute and the Consumer Safety Commission. One of the governmental publications, issued by the United States Health Department, was entitled Glass Door Injuries and Their Control and another, emanating from the United States Product Safety Commission, was entitled Hazard Analysis — Injuries Involving Architectural Glass.

      . Section 389-0 provides “It shall be unlawful within the state of New York to knowingly sell, fabricate, assemble, glaze, install, consent or cause to be installed glazing materials other than safety glazing materials in or for use in, any ‘hazardous locations’.”
      “Safety glazing materials” as pertinent here, are defined as “[a]ny glazing material, such as tempered glass, laminated glass, wire glass or rigid plastic, which meets the test requirements of the American National Standards Institute Standard (ANSI Z-97.1 — 1972), and which are so constructed, treated or combined with other materials as to minimize the likelihood of cutting and piercing injuries resulting from human contact with the glazing material”. (§ 398-m, subd [1].)
      “Hazardous locations”, as pertinent here, are defined as “those structural elements, glazed or to be glazed in residential buildings and other structures used as dwellings, * * * known as sliding glass doors *** shower doors, bathtub enclosures * * * whether or not the glazing in such doors *** and enclosures is transparent” (§398-m, subd [21).

      . Subdivision 1 of section 78 of the Multiple Dwelling Law provides: “Every multiple dwelling * * * and every part thereof * * * shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section”.


source: Caselaw Access Project

author: Fuchsberg, J. Wachtler, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Bryant K. O. White, Appellant.
    Argued March 26, 1982;
    decided May 20, 1982

      POINTS OF COUNSEL

      David Lee Foster for appellant.
    I. A defendant who is in custody and who has retained counsel may not waive his right to counsel in counsel’s absence, at an arraignment. (People v Settles, 46 NY2d 154; People v Samuels, 49 NY2d 218; People v Hobson, 39 NY2d 479; People v McIntyre, 36 NY2d 10; People v Cunningham, 49 NY2d 203; Gideon v Wainwright, 372 US 335.) II. Material evidence was obtained pursuant to a defective search warrant. (People v Lalli, 43 NY2d 729; Aguilar v Texas, 378 US 108; People v Brown, 40 NY2d 183; People v Elwell, 50 NY2d 231.) III. Defendant was improperly taken into custody.

      James R. Harvey, District Attorney (Schuyler-Van Horn and Michael O’Brien of counsel), for respondent.
    I. A defendant charged with a noncriminal petty offense can waive his right to counsel at arraignment in the absence of counsel. (People v London, 98 Misc 2d 298; People v Kohler, 17 NY2d 914; People v Schuster, 83 Misc 2d 871; Argersinger v Hamlin, 407 US 25; People v Letterio, 16 NY2d 307, 384 US 911; People v Farinaro, 36 NY2d 283; People v Phinney, 22 NY2d 288; People v Bailey, 60 Misc 2d 283; People v Armitrano, 59 Misc 2d 471; People v Du Pont, 28 AD2d 1135.) II. Defendant’s waiver of counsel after entry of counsel was proper. (People v Hobson, 39 NY2d 479; People v Bliss, 53 Misc 2d 472.) III. Defendant was not denied due process in waiving counsel. (People v Gruttola, 43 NY2d 116; People v Yarter, 41 NY2d 830, 433 US 910; People v Blim, 61 AD2d 876; People v Albro, 73 AD2d 73; People ex rel. Sheehan v Murphy, 6 NY2d 238.) IV. No error occurred in issuing a search warrant of defendant’s car or in arresting him on unlawful possession of marihuana. (People v Gemmill, 54 AD2d 1034; People ex rel. Cherry v Deegan, 32 AD2d 792; People v Brown, 40 NY2d 183; People v Parliman, 56 AD2d 966.) V. Defendant’s plea was knowingly and voluntarily made. (North Carolina v Alford, 400 US 25.)
   OPINION OF THE COURT

Fuchsberg, J.

Once again we address the troublesome question of the circumstances in which the presence of counsel who has entered a criminal case may be waived by a defendant in the absence of counsel. The issue arises anew in the context of a charge of “unlawful possession of marihuana”, an offense whose initial violation, classified neither as felony nor as misdemeanor, is “punishable only by a fine of not more than one hundred dollars”. We hold such a waiver may be effected, but only in the presence of a neutral magistrate who gives the defendant appropriate warnings of the risks of such a course.

The defendant, Bryant K. O. White, a young community aide worker in the City of Geneva, was taken into custody on an information after police officers found an unsmoked marihuana cigarette and the burnt butt ends of two others in his car. When the Geneva City Court Judge to whose home the police had transported him for arraignment was not available, the defendant was lodged in the city jail at the police station house. From there, the defendant telephoned the director of the Geneva Human Rights Commission and requested her to find counsel for him. This she promptly did in the person of a Geneva lawyer, David Lee Foster. Foster did not delay in responding. First he telephoned the station house, where an arresting officer, William G. Hastings, advised him of the nature of the charge. Next, he visited the jail where, after interviewing the defendant, he was formally retained. Moreover, when he left the jail, he took the precaution of leaving the desk sergeant with particular information as to where he could be readily reached.

Shortly thereafter, defendant was taken back to the Judge’s home for arraignment. It is not disputed that, despite the People’s knowledge of Foster’s whereabouts, he was not notified of this event. Not surprisingly, he did not attend. Perhaps because he was not present and surely because the proceedings were not recorded, recollections of what transpired thereat were not free from doubt.

For the balance of the facts relevant to this appeal we therefore must look to the findings of the County Court, which, since it was to pass on an appeal from “a local criminal court in a case in which the underlying proceedings were not recorded by a court stenographer”, appropriately relied partly on the defendant’s “affidavit of errors” and the City Court Judge’s “return” (CPL 460.10, subd 3, pars [a], [d]) and, in other respects, on two statements by Officer Hastings, one in the form of a police report offered by the District Attorney and the other by way of a transcript of the officer’s testimony at a vocational disciplinary proceeding which defendant faced soon after his arrest. For our part, we are bound by a County Court’s factual findings when these find support in the record, as they do in this case (Cohen and Karger, Powers of the New York Court of Appeals, § 198).

From this .reconstruction, we then must take it as established that, though Officer Hastings told the City Court Judge that Foster had entered the case, neither the Judge nor the defendant alluded to that fact in the arraignment colloquy. Rather, to quote from the County Court’s decision, when the Judge “advised the defendant of his rights, including the right to an attorney at all stages of the proceeding and the right to an attorney to assist him on the charge and that he had a right to a trial”, the defendant rejoined that “he could not understand how he could be guilty of the charge” when it only involved the two butts. The County Court decision then goes on to relate how the arraigning Judge informed the defendant that the possession of any amount of marihuana was unlawful, explained that he could not be sent to jail for a first offense and offered him “an adjournment to get an attorney, or a trial”. The decision continues that defendant’s reply was that “he wanted to get rid of it”. After all this, “the Court asked if the plea was freely and voluntarily made” and “the defendant answered that it was”, and judgment was entered, all within the four-hour span which followed the search and arrest which had initiated the events of that evening.

On this factual base, the County Court affirmed the conviction, reasoning in the process that, while “a defendant’s right to counsel can be waived only in the presence of counsel once counsel has been retained, no court has yet applied the rule to an arraignment”. On the present appeal, here by leave of a Judge of this court acting under CPL 460.20, defendant’s position, inter alia, is that the City Court proceeding contravened the defendant’s constitutional right to counsel. For the reasons which follow, reversal is in order.

Our analysis may well begin with the general observation that this State has long been a protector of an accused’s right to be heard through counsel and, if need be, to have such counsel assigned at public expense (see, e.g., People ex rel. Burgess v Risley, 66 How Prac 67; People v Donovan, 13 NY2d 148; People v Hobson, 39 NY2d 479; People v Rogers, 48 NY2d 167; People v Samuels, 49 NY2d 218; People v Bartolomeo, 53 NY2d 225).

These and other cases in the same line have been true to the spirit as well as the letter of our State Constitution’s provision that “[i]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions” (NY Const, art I, § 6). Sensitive that other constitutional rights, such as the privilege against self incrimination and the guarantee of due process, are not self-executing, they have recognized that the right to counsel “looks to their vitality as well” (People v Garofolo, 46 NY2d 592, 599; People v Cunningham, 49 NY2d 203, 207). In the end, the aim, of course, is that a particular defendant’s guilt or innocence depend on the merits and not alone on his or her articulateness, poise, intelligence, education, experience, maturity, legal sophistication or other personal qualities, or on the lack of one or more of these, as is too often true of a defendant who insists on representing himself (cf. Powell v Alabama, 287 US 45, 68-69).

However, it also must be noted that, mainly on the rationale that all unlawful acts are not of like gravity, our State and Federal courts have held that this right may be circumscribed in cases of lesser import. Ready illustration is found in the United States Supreme Court’s delineation of the scope of the Sixth Amendment’s prescription that an “accused shall enjoy the right * * * to have the Assistance of Counsel for his defense”, a mandate applicable to the States through the Fourteenth Amendment (Gideon v Wainwright, 372 US 335, 342). In a series of cases commencing with Argersinger v Hamlin (407 US 25) and running through Scott v Illinois (440 US 367) and Baldasar v Illinois (446 US 222), the court rejected the postulate that the constitutionality of an uncounseled conviction turns on the severity of the punishment or on whether the offense is classified as felony, misdemeanor or petty crime. Instead, the court has subscribed to the result-oriented proposition “that no indigent criminal defendant may be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel” (Scott v Illinois, supra, at p 374).

New York, following a somewhat parallel course under its own Constitution, similarly has drawn the line at deprivation of liberty (People v Farinaro, 36 NY2d 283, 285 [traffic infractions for which a “defendant no longer faces the possibility of imprisonment”]). And, as Chief Judge Desmond, in a dissent in which he was joined by then Judge Fuld, presciently put it more than a decade earlier, “[w]e express no new idea when we urge that, where imprisonment threatens, constitutional guarantees as to counsel must apply to ‘non-serious’ as well as ‘serious’ offenses” (People v Letterio, 16 NY2d 307, 316).

Thus, under prevailing constitutional case law, irrespective of whether the governing standard, as in Scott, is keyed to the actual imposition of imprisonment or, as suggested by the quotations from our cases, to a broader test triggered by the mere possibility of imprisonment (see, also, ABA Standards for Criminal Justice, Providing Defense Services, § 4.1 [adopted draft, 1968] [“types of offenses for which incarceration as a punishment is a practical possibility”]), plaintiff’s case falls within the limitation. For, standing alone, the charge against him neither could nor did eventuate in his incarceration.

Nevertheless, section 221.05 of the Penal Law also provides that one who repeats such an offense a second time within three years after the commission of the original one is subject to the alternative punishment of imprisonment. Conceivably then, it could be argued that defendant’s plea here exposed him, however contingently, to the possibility of future loss of liberty. But this risk was eliminated by Baldasar, for there the court, in amplification of Scott, declared that an uncounseled plea for which an offender is not incarcerated may not be used to elevate a subsequent offense from one for which imprisonment is not available to one for which it is (Baldasar v Illinois, supra, at pp 222, 224, 226).

But, while the defendant in the case before us now therefore could not demand that counsel be assigned to him, this did not mean he was not free to retain one on his own. Indeed, there is nothing to indicate he did not have the means to do so, and, as we know, he in fact so advantaged himself promptly. Which brings us to the crucial questions: Absent the presence of the counsel whom he had engaged to represent him, was it error for the court to have allowed the defendant to proceed pro set If error it were, under what conditions would it have been permissible?

Essentially because of the same qualitative considerations which would have sanctioned denial of assignment of counsel, we now hold that it was within the power of the court to grant permission to th.e defendant to forego the presence of his retained counsel, but only if the court had first undertaken a sufficiently searching inquiry for it to be reasonably assured that the defendant appreciated the “dangers and disadvantages” of giving up the fundamental right to counsel (Faretta v California, 422 US 806, 835; see People v Medina, 44 NY2d 199, 210; People v Gina M. M., 40 NY2d 595, 597; People v Seaton, 19 NY2d 404,406-407).

In so deciding, we do not retreat from our repeated pronouncements, as State constitutional law, that “[o]nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel” (People v Rogers, 48 NY2d 167, 170-171, supra; People v Hobson, 39 NY2d 479, 483, supra; each quoting from People v Arthur, 22 NY2d 325, 329; People v Cunningham, 49 NY2d 203, 207, supra). Instead, in the context of the multitude of lesser cases in which prison is not in the offing and in which the defendant may wish to dispense with counsel, we acknowledge that the neutral magistrate is a practical and suitable agency for bringing the risk of unwise and uninformed waivers of counsel home to such defendants. After all, the judicial function, divorced by the separation of powers principle from the police and prosecutorial activities of the State, stands above and beyond the adversarial fray. Surely, this nonpartisanship does not interdict or inhibit employment of a Judge’s understanding of the pragmatics of adversarial litigation to meet this responsibility.

Moreover, the efficacy of the rule we fashion does not rely on its conceptualization alone. Such a waiver of counsel is not to be handled as though it were a routine, rubberstampable formality (cf. Adams v United States ex rel. McCann, 317 US 269, 279), for “a right too easily waived is no right at all” (People v Hobson, supra, at p 484). Consistent with the obligation we heretofore have enjoined on jurists before defendants in criminal cases may undertake their own defense, the Judge must see to it that the waiver is “knowing and intelligent” (People v McIntyre, 36 NY2d 10, 17; cf. United States v Mohabir, 624 F2d 1140 [Feinberg, Ch. J.]). It follows that a defendant’s silence will produce no presumption of waiver (cf. Carnley v Cochran, 369 US 506, 515). Nor will the simple statement of a desire to abandon the services of a lawyer, whether assigned or retained, suffice (cf. Von Moltke v Gillies, 332 US 708, 724; Matter of Lawrence S., 29 NY2d 206, 208).

So measured, the precautionary inquiry pursued by the Trial Judge in the present case was woefully inadequate. For instance, he did not utter a word, much less explain, the objectivity or professionalism counsel could supply; his bare statement that the defendant had a right to counsel was no substitute. Nor, for practical purposes, did his summary and unprobing question as to whether the plea was “freely and voluntarily made” add anything. Though aware of the defendant’s public position, the Judge drew no attention to the possibility of collateral consequences affecting his employment. If anything, in light of the defendant’s expressed anxiety, judicial assurance that conviction could entail only a relatively modest fine actually encouraged the uncounseled posthaste plea.

For all these reasons, the order of the County Court should be reversed, the plea vacated and the case remitted to the City Court of the City of Geneva for further proceedings on the complaint. In so deciding, we do not reach the defendant’s other points, including his attack on the warrant under which his car was searched, since these were not preserved for our review (CPL 470.05, subd 2).

Wachtler, J.

(dissenting). The special rule precluding the police from obtaining an uncounseled waiver once an attorney has appeared for the defendant (e.g., People v Hobson, 39 NY2d 479) has no application when the defendant decides to waive his rights in the neutral atmosphere of the courtroom. Thus, I agree that there is no merit to the defendant’s contention that he could not waive his right to the assistance of counsel in court unless the attorney were present. In view of the fact that this is the only issue concerning the taking of the plea which the defendant has raised on this appeal, the order of the County Court should be affirmed.

Chief Judge Cooke and Judges Jasen and Jones concur with Judge Fuchsberg; Judge Wachtler dissents and votes to affirm in a separate opinion in which Judge Gabrielli concurs; Judge Meyer taking no part.

Order reversed, etc.

      . In defining this offense as “unlawful” rather than “criminal”, section 221.05 of the Penal Law applies the decriminalization import of the so-called Marihuana Reform Act to possession of 25 grams (approximately seven eighths of an ounce) ,(L 1977, ch 360). Concordantly, because one charged under this section is not to be fingerprinted or photographed (see CPL 160.10), a conviction is not automatically recorded with the Division of Criminal Justice Services, the State’s central repository of criminal records (see Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 221.05, p 98). In contradistinction, other parts of the over-all statutory scheme separately provide for five degrees of “criminal possession”, some denominated misdemeanors and others felonies (Penal Law, §§ 221.05, 221.10, 221.15, 221.20, 221.25, 221.30).

      . The “return”, provided for in CPL 460.10 (subd 3, par [d]), “must set forth or summarize evidence, facts or occurrences in or adduced at the proceedings resulting in the judgment, sentence or order, which constitute the factual foundation for the contentions alleged in the affidavit of errors”.

      . The County Court’s decision makes no mention of the fact that the City Court Judge’s return omits any reference to Officer Hasting’s advice that Foster was in the case. Nevertheless, from its recital of Hasting’s testimony and Foster’s statement at argument, each certifying to the latter’s prearraignment retention, as well as from the County Court’s acceptance of this circumstance as the premise for its decision, we must assume the County Court found as a fact that Foster indeed had entered the case. Most conclusively, the record reveals that, on argument before the County Court, the District Attorney conceded that Foster was in the case before the arraignment (“There is no contention by the people that Mr. Foster did not show up at the precinct house, to the best of my knowledge he did, but Mr. White was taken to [the Judge’s! house”).

      . “ ‘Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts’ ” (Scott v Illinois, supra, at p 369, quoting Argersinger v Hamlin, supra, at p 40).

      . “The Constitution does not contemplate that prisoners shall be dependent upon government agents for legal counsel and aid, however conscientious and able those agents may be” (Von Moltke v Gillies, 332 US 708, 725).


author: Wachtler, J.

text:
    In the Matter of the Arbitration between Penn Central Corporation et al., Respondents, and Consolidated Rail Corporation, Appellant.
    Argued March 25, 1982;
    decided May 20, 1982

      POINTS OF COUNSEL

      Stephen E. Powers and Mary Jo Reich for appellant.
    I. The court below incorrectly converted the parties’ clear and unequivocal agreement to submit the issue of valuation to a panel of qualified and disinterested appraisers into an arbitration agreement. (Greason v Keteltas, 17 NY 491; Matter of Fletcher, 237 NY 440; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; Matter of Hollander [Kessler], 19 AD2d 445; Matter of Katz [Schwartz], 11 AD2d 89, 9 NY2d 799; Clark v Kraftco Corp., 323 F Supp 358, 447 F2d 933, 510 F2d 500; Matter of American Silk Mills Corp. [Delaware] [Meinhard-Commercial Corp.], 35 AD2d 197.) II. Arbitration may not be ordered absent an express, direct and unequivocal agreement in writing between the parties. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of Marlene Inds. Corp. [Carnac Textiles], 45 NY2d 327; Matter of Riverdale Fabrics Corp. [Tilling-hast-Stiles Co.], 306 NY 288; Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1; Village of Brockport v County of Monroe, 75 AD2d 483; Matter of Friedland, 1 AD2d 129.) III. The court below committed clear error by considering documentary evidence not part of the record on appeal. (Matter of Slater v Village of Herkimer, 73 AD2d 1061; Van Dussen-Storto Motor Inn v Rochester Tel. Corp., 63 AD2d 244; Mulligan v Lackey, 33 AD2d 991.) IV. CPLR 7601 is inapplicable to the present proceeding. (Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; Matter of Fletcher, 237 NY 440; Clark v Kraftco Corp., 323 F Supp 358, 447 F2d 933, 510 F2d 500; Gervant v New England Fire Ins. Co., 306 NY 393.) V. Assuming, arguendo, that the instant agreement is an arbitration agreement, the “arbitrators” exceeded their powers. (Berk & Co. v Derecktor, 301 NY 110; McCarter v Crawford, 245 NY 43; Sedita v Board of Educ., 53 AD2d 300, 43 NY2d 827; Matter of Civil Serv. Employees Assn., Steuben County Ch. v County of Steuben, 50 AD2d 421; Pavilion Cent. School Dist. v Pavilion Faculty Assn., 51 AD2d 119, 42 NY2d 961.) VI. Special Term correctly dismissed the petition. (Guggenheimer v Ginzburg, 43 NY2d 268; Rappoport v International Playtex Corp., 43 AD2d 393; Weiser v Burick, 47 Misc 2d 962.)

      Louis A. Craco, Robert J. Kheel and Sally Cohen Swift for respondents.
    I. The record demonstrates that the parties intended by their written agreement to obtain a final and comprehensive third-party determination by which they would be bound. (Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; Matter of Riverdale Fabrics Corp. [Tilling-hast-Stiles Co.], 306 NY 288; Matter of Marlene Inds. Corp. [Carnac Textiles], 45 NY2d 327; Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1; Matter of American Silk Mills Corp. [Delaware] [Meinhard-Commercial Corp.], 35 AD2d 197; Matter of Katz [Schwartz], 11 AD2d 89, 9 NY2d 799; Matter of American Ins. Co. [Messinger — Aetna Cas. & Sur. Co.], 43 NY2d 184; Matter of Northerly Corp. v Her

      mett Realty Corp., 17 AD2d 610, 12 NY2d 841; Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621; Korein v Rabin, 29 AD2d 351.) II. CPLR 7601 authorizes the courts, in their sound discretion, to enforce third-party awards of the type at issue here. (Matter ofDimson [Elghanayan], 19 NY2d 316; Clark v Kraftco Corp., 510 F2d 500; Matter of Hollander [Kessler], 19 AD2d 445,15 NY2d 586.) III. The panel’s award was fair and reasonable and Conrail’s belated attacks on it are without merit. (Matter of Dimson [Elghanayan], 19 NY2d 316; Leary v United States Ry. Assn., 460 F Supp 1261; Morelock v NCR Corp., 586 F2d 1096, 441 US 906; Matter of American Ins. Co. [Messinger — Aetna Cas. & Sur. Co.], 43 NY2d 184; Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1.)
   OPINION OF THE COURT

Wachtler, J.

Petitioner Penn Central Corporation commenced this proceeding to confirm a determination of three appraisers made pursuant to an agreement between petitioner and Consolidated Rail Corporation (Conrail). The trial court dismissed the petition on the ground that the court lacked the power to confirm an appraisal. The Appellate Division reversed and confirmed the determination holding that, although it dealt with valuation, it was an arbitration award resolving the only dispute between the parties. Conrail appeals as a matter of right on the basis of the reversal (CPLR 5601, subd [a]).

In 1976 Conrail acquired the surface rights to a railroad yard, on the west side of Manhattan, owned by the Penn Central Transportation Company. The deed reserved the air rights over the property for the owner, provided they were utilized within a specified period of time. These air rights subsequently passed from the bankrupt Penn Central Transportation Company to its successor, the petitioner in this proceeding. In 1980 the petitioner and Conrail agreed to sell their interests in the property to the Triborough Bridge and Tunnel Authority for approximately $17,000,000 but could not agree on the proper allocation of the proceeds. They agreed, however, to complete the sale, to place the proceeds in escrow and to appoint a panel of appraisers to determine the proper allocation of the funds.

The original letter agreement, proposed by Conrail and accepted by petitioner in July of 1980, states that “it is in our mutual interest that the question of allocation be settled as expeditiously as possible” and that it is “our opinion that the impanelling of not less than three qualified and disinterested appraisers presents the best forum for a prompt, professional and equitable distribution of the sales proceeds”. It provides that each side would select an appraiser with designated qualifications, that the third appraiser would be chosen by the first two and that a “decision of two-thirds of the panel would control”. In addition both sides would “have an opportunity formally to present their positions to the panel” which in turn would “make such independent investigation as it deemed necessary” prior to rendering its decision.

The letter agreement also states that it “is written in settlement of the pending or prospective dispute between our respective organizations and is not in any way an admission of any facts currently or prospectively at issue”. However, when the panel was selected in November, 1980, the parties submitted a statement of “Facts and General Guidelines For The Appraiser Panel” containing a description of the property, its dimensions, the point at which the air rights begin and a concession by Conrail that utilization of the rights by April 1,1986 would be timely and that an earlier date (April 1,1981) mentioned in the deed “does not apply”. This statement defined the role of the appraisers as follows: “Since PCC and Conrail could not agree on a fair allocation of the proceeds from the Sale, the purpose of the assignment of the Appraiser Panel is to determine the allocation of the proceeds of the Sale between PCC’s fee interest in the air rights and Conrail’s fee interest in the surface rights utilizing appraisal techniques generally accepted by the American Institute of Real Estate Appraisers.” The guidelines also included a schedule for the submission by the parties of written reports and rebuttals, and requests by the panel for “any other input, if necessary, to complete its work” and “reach an allocation conclusion” which should be accomplished “approximatly three weeks from receipt of the original written reports”. In December the parties submitted a new and tighter schedule in order to further expedite the determination.

In accordance with the guidelines the parties submitted written reports and rebuttals. The appraisers inspected the site, requested and received additional information and issued their report on January 5, 1981. The report concludes that “a fair and reasonable allocation of the purchase price” was 65% for Penn Central with respect to its air rights and 35% for Conrail as owner of the surface rights. The report identified seven “salient points” or factors considered by the appraisers in making the determination. It also stated that the decision was unanimous and contained a certification as required by the rules of the American Institute of Real Estate Appraisers (AIA).

When Conrail refused to accept the report and to direct the escrow agent to release the sale proceeds in accordance with the allocation, Penn Central commenced this proceeding to have the award confirmed “pursuant to CPLR §§7601 and 7510” and to have judgment entered upon it. Conrail cross-moved to dismiss on the grounds that the petition failed to state a cause of action and that the court lacked subject matter jurisdiction.

In support of the motion to dismiss Conrail contended that “the allocation panel’s determination is so patently defective that its enforcement * * * would be a gross travesty of justice”. It claimed that the “[flirst and foremost” defect was the “assumption” that the air rights commenced at a fixed point above the highest surface rail while actually the highest rail was located on a trestle 47 feet above the surface. Although the allegedly erroneous assumption was based on the agreed statement of facts, Conrail contended that its concession on this point was “only for the purpose of the allocation determination”, and was not binding beyond that proceeding. It urged that this error alone rendered the entire allocation determination totally inaccurate.

Conrail also contended that the allocation determination was defective because it does not comply with the AIA standards “as was required by the parties”. It claimed that “[pjerhaps the most grievous” defect in this regard “is that the panel failed to present any rationale for its determination, which leaves Respondent without the means of ascertaining the extent to which the panel may have further disregarded other important AIA standards”. It then noted in detail that the factors cited in the report required calculations to be made in accordance with standards specified in the AIA rules and concluded that the appraisers’ “failure” to make any reference to the standards used in assessing the cited factors, indicated a failure to comply with the AIA standards.

Conrail also contended that the panel improperly relied upon a report submitted by petitioner in which the expert concluded that the area had great potential for development. Conrail noted that a newspaper article published a few days after the panel’s decision indicated that on a prior occasion that expert had predicted very little development in the area at least — and this was not noted by Conrail — “without government intervention”.

The trial court dismissed the proceeding in a brief memorandum concluding that this was not an arbitration but “an appraisal only” and that the courts lack the power to enter judgment upon an appraisal as if it were an arbitration, citing Matter of Hollander v Kessler (19 AD2d 445, affd 15 NY2d 586).

The Appellate Division reversed and confirmed the award (82 AD2d 208). The court stated (p 213): “The plain meaning of the agreement was to submit the entire controversy between the parties to impartial third parties for final resolution. In all respects, except for the use of the word ‘appraisal’, this constituted an arbitration agreement”. The court also found that the statutory formalities applicable to arbitration were either waived or substantially fulfilled. “In this view”, the court concluded “we need not concern ourselves with the application of CPLR 7601” relating to appraisal, valuation and related agreements (p 216).

Historically the courts have recognized a basic distinction between appraisal and arbitration. Although both contemplate a nonjudicial and informal resolution of a dispute by a third party, the prevailing practice in appraisals is more informal and “entirely different [from the] procedure governing arbitration” (Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60, 67). Unless the parties have waived their rights, arbitrators are required to take an oath, hold hearings on notice to the parties, decide the matter only on the evidence submitted at the hearing and, if more than one arbitrator has been selected, all must attend the hearing (CPLR 7506; see, also, Matter of Delmar Box Co. [Aetna Ins. Co.], supra). This is not the accepted procedure in appraisals and appraisers are not required to observe these formalities (Matter of Delmar Box Co. [Aetna Ins. Co.], supra). We have also indicated in the past that arbitration generally resolves the whole controversy between the parties and results in confirmation and the entry of judgment on the award, while appraisal resolves only a valuation question leaving all other issues for resolution at a plenary trial (Matter of Delmar Box Co. [Aetna Ins. Co.], supra, p 63; but see Instructional Tel. Corp. v National Broadcasting Co., 45 AD2d 1004; CPLR 7503, subd [a]).

In most respects this case fits the typical appraisal pattern. The dispute between the parties related to the proportionate valuation of their respective rights in the property; they agreed to submit it to appraisers for resolution, and the proceedings were conducted with the informality customary with appraisers. What makes this case unusual is the fact that the valuation determination resolves the entire dispute between the parties, as is generally expected only in arbitrations.

There is, of course, no merit to Conrail’s contention that there are other issues which the parties reserved for a plenary trial “such as”, the point at which the air rights begin and the time within which they must be utilized to be preserved. These are not “other issues”. They are an integral part of the allocation question which the parties agreed to submit to the appraisal panel. Any reservation of these issues for future litigation would have rendered the appraisal meaningless. In fact Conrail has effectively conceded the point by claiming that an “erroneous” assumption concerning the height question destroyed the validity of the appraisal. Nevertheless Conrail argues that its right to litigate these points after the appraisal was preserved in the initial letter agreement.

Although this initial proposal accepted by the petitioner stated that it did not constitute an admission of any facts, the parties subsequently submitted an agreed statement admitting the very facts Conrail claims are still a matter of dispute. A party who has formally admitted certain facts cannot, if dissatisfied with the outcome, avoid his stipulation by noting that at some earlier point in the dispute he had refused to make admissions. Conrail’s further contention that these admissions were made only for the purpose of the appraisal overlooks the fact that the purpose of the appraisal was to determine the proper allocation of the sales proceeds — the same ultimate issue Conrail now seeks to litigate. In short, the appraisal award resolved the entire dispute between the parties, and thus there are no issues left for a plenary trial.

This unusual circumstance, however, does not mean that the appraisal award was actually an arbitration award. It simply means that this is the apparently rare case in which the appraisal award actually does resolve the parties’ dispute in its entirety. The distinction is important because an award made in an appraisal proceeding, conducted in the informal manner accepted in such proceedings, should not be subject to challenge for failure to observe the formalities suited only to arbitrators (Matter of Delmar Box Co. [Aetna Ins. Co.], supra; see, also, Note, Scope of New York Arbitration Law, 43 Harv L Rev 809, 812). Nor should it be necessary for the proponent of an appraisal award to demonstrate waivers or substantial compliance with respect to formalities foreign to the accepted appraisal process.

The second question posed by this appraisal award is whether it can be confirmed in a special proceeding in view of the fact that the valuation determination encompasses the entire controversy. Conrail claims that prior decisions and the wording of the present statute governing appraisals (CPLR 7601) deny a court the power to do so in all cases. It is contended that the statute by its terms only permits a court to confirm an appraisal award when it has previously intervened in the proceeding by granting specific performance of the appraisal agreement or by directing that the parties proceed to arbitration. The argument is based on the assumption that the Legislature does not favor the informal methods employed by appraisers and is only willing to permit confirmation and the entry of judgment when the court “oversees the proceedings, and assures that due process safeguards are afforded to the parties”.

The legislative history, however, does not indicate any hostility or suspicion of the accepted practice in appraisals, or preference for the more formal procedures employed in arbitration. On the contrary, the drafters expressed a need to preserve the appraisal format distinct from arbitration. Their report states: “the procedures are really different and * * * the greater formality in arbitration ought not to be made compulsory for appraisal and evaluation proceedings” (NY Legis Doc, 1960, No. 20, pp 61, 64). Neither was the statute designed to restrict the court’s power to enforce appraisal agreements. In fact the drafters noted that it was intended to have the opposite effect of permitting the court to “choose from a wider range of remedies” than those previously employed in such proceedings {ibid., p 62). It was contemplated that under this statute, a court would have the option to (1) order specific performance of the appraisal agreement, a remedy not available at common law {ibid., p 62); (2) direct the parties to proceed to arbitration, the only sanction authorized by the prior statute but now considered a “last resort” {ibid., p 64); or (3) “exercise its equitable discretion” by adopting some other form of relief appropriate to the particular case, including remedies not specifically identified in the statute {ibid., p 62). The report concludes: “There seems no reason why courts should not be entrusted with their traditional legal and equitable powers. Because they may not be suitable in some instances is no reason to abolish them in every instance” (ibid., p 65). Thus we have noted that this statute permits a court to confirm an appraisal in an appropriate case (Matter of Dimson [Elghanayan], 19 NY2d 316, 325).

It is evident from our prior decisions that there is no need to confirm the award in the typical case where valuation represents only part of a dispute or serves as a condition precedent to the exercise of other contractual rights which may also be in dispute (see, e.g., Matter of Delmar Box Co. [Aetna Ins. Co.], supra; Matter of Hollander v Kessler, 15 NY2d 586, supra). Indeed to require or permit a party to commence a special proceeding for the confirmation of a valuation determination when there are other issues to be resolved at a plenary trial, would only lead to additional litigation and delay, thus defeating the primary objective of the appraisal agreement. But when, as here, the only dispute between the parties concerns a question of valuation which they have agreed to submit to a panel of appraisers for a nonjudicial and expeditious determination there is no reason why the award should not be confirmed in a special proceeding and the matter finally resolved as the parties obviously intended when they made the agreement.

Finally, as noted, Conrail claims that defects in the appraisal award preclude confirmation. As a general rule under CPLR 7601, “a dissatisfied party who participated in ’the selection of an independent appraiser has no greater right to challenge the appraiser’s valuations than he would have to attack an award rendered by an arbitrator” (Matter of Dimson [Elghanayan), supra, p 325; cf. Gervant v New England Fire Ins. Co., 306 NY 393). None of the alleged defects would require setting aside the award under that standard.

The claimed error in computing the boundary for the surface rights was not an error but a stipulated fact binding on all participants. In addition factual errors do not ordinarily affect the validity of an award. Conrail’s belated objection to the use of petitioner’s expert report, because the expert may have expressed a contrary opinion on some prior occasion, does not represent any defect in the proceedings and would not be considered error even in the more demanding judicial setting. With respect to the content of the panel’s report, it is sufficient to note that there was no showing that it is the accepted practice for appraisers to set forth every step in their calculations when confronted by such a short deadline, or even as a general rule.

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

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

Order affirmed, with costs.

      . The full text of the July, 1980 letter agreement is set forth in the Appellate Division decision (82 AD2d 208, 209-210).

      . CPLR 7601 reads as follows: “A special proceeding may be commenced to specifically enforce an agreement, other than one contained in the standard fire insurance policy of the state, that a question of valuation, appraisal or other issue or controversy be determined by a person named or to be selected. The court may enforce such an agreement as if it were an arbitration agreement, in which case the proceeding shall be conducted as if brought under article seventy-five. Where there is a defense which would require dismissal of an action for breach of the agreement, the proceeding shall be dismissed.”


author: Gabrielli, J.

text:
    In the Matter of Anne S. Brescia, Appellant, v Peter C. Fitts, Respondent.
    Argued March 24, 1982;
    decided May 20, 1982

      POINTS OF COUNSEL

      Douglas R. Hoyt for appellant.
    I. The court below erroneously misconstrued the nature of the relief requested. The Family Court properly found that because the separation agreement was unfair when made, the amount of child support should be increased. (Matter of Boden v Boden, 42 NY2d 210; King v King, 79 AD2d 1083; Van Dyke v Van Dyke, 278 App Div 446; Lue v English, 44 NY2d 654; Matter of Susan W. v Noel J. F., 107 Misc 2d 531; Matter of Huffman v Huffman, 93 Misc 2d 790; Heaney v Heaney, 93 Misc 2d 811; Matter of Barylski v Barylski, 100 Misc 2d 784; Matter of Bender v Bender, 94 Misc 2d 721.) II. Petitioner’s evidence is more than sufficient as a matter of law to warrant an increase in child support. (Riposo v Riposo, 60 AD2d 790; Ward v Ward, 79 AD2d 683; Matter of Goldberg v Aylward, 72 AD2d 510; Matter of Sacco v Sacco, 69 AD2d 1004; Matter of Covington v Clavin, 70 AD2d 592; La Scala v La Scala, 72 AD2d 944; Coen v Coen, 56 AD2d 810; Yeackel v Lindstead, 67 AD2d 755; Matter of Di Pillo v Di Pillo, 59 AD2d 927.) III. The scope of review on appeal to the court below was limited to review of the Family Court order dated February 22, 1979. (Matter of Boden v Boden, 42 NY2d 210; James v Powell, 19 NY2d 249; Cullen v Naples, 31 NY2d 818; Matter of Board of Managers of Kemey’s Cove Condominium v Board of Assessors of Vil. of Ossining, 73 AD2d 621; McClelland v Climax Hosiery Mills, 252 NY 347; Guggenheimer v Ginzburg, 43 NY2d 268; Rovello v Orofino Realty Co., 40 NY2d 633; Matter of Di Pillo v Di Pillo, 59 AD2d 927.) IV. The children’s expenses and needs, in light of the father’s substantial income, resources and admitted ability to pay, warrant a substantial increase in the amount awarded by the Family Court. (Matter of Hahn v Hahn, 78 Misc 2d 585, 40 AD2d 624; Matter of Veneri v Veneri, 40 AD2d 735; Matter of Kern v Kern, 65 Misc 2d 765; Eisen v Eisen, 48 AD2d 652; Berzins v Berzins, 64 AD2d 881; Matter of La Bate v La Bate, 62 AD2d 1068; Matter of Boden v Boden, 42 NY2d 210; Matter of Di Pillo v Di Pillo, 59 AD2d 927; Yeackel v Lindstead, 67 AD2d 755.) V. Increased child support should be retroactive to the date of the commencement of this proceeding. (Rosner v Rosner, 82 Misc 2d 603; Stern v Stern, 67 AD2d 253.) VI. The Family Court improperly terminated child support during college education. (Matter of Davidow v Davidow, 97 Misc 2d 220; Belaustegui v Belaustegui, 85 Misc 2d 1015; Breland v Breland, 82 Misc 2d 277; Matter of Zoro v Lino, 71 Misc 2d 725; Kaplan v Wallshein, 57 AD2d 828.) VII. The Family Court’s award of

      counsel fees under the circumstances of this case constitutes an abuse of discretion. (Usher v Usher, 42 AD2d 807; Matter of Kern v Kern, 65 Misc 2d 765; Stern v Stern, 67 AD2d 253; Matter of Barnes v Barnes, 54 AD2d 963.)

      John H. Galloway, III, for respondent.
    I. The court below properly ruled in favor of respondent, reversing, on the law, and vacating the Family Court orders, and dismissing the amended petition for increased child support on the grounds that petitioner showed only (1) a significant increase in the income of respondent, (2) a generalized claim that the children’s needs have increased as they have matured and because of inflation, and (3) that the Family Court, having no equity jurisdiction, may not order rescission of the child support provisions of the subject separation agreement. (Kleila v Kleila, 50 NY2d 277; Matter of Boden v Boden, 42 NY2d 210; Deacutis v Cuomo, 79 AD2d 595.) II. Family Court lacked jurisdiction to vary or modify the terms of the separation agreement concerning child support, and its orders of April 21 and July 18, 1980 were properly reversed on that ground, when those orders accomplished selected equitable rescission of the existing valid separation agreement. (Kleila v Kleila, 50 NY2d 277; King v Schultz, 29 NY2d 718.) III. The scope of review on appeal to the court below was not limited to review of the Family Court order of February 22, 1979, but rather encompassed that and the three subsequent Family Court orders appealed from to that court. (James v Powell, 19 NY2d 249; McClelland v Climax Hosiery Mills, 252 NY 347; Matter of Boden v Boden, 42 NY2d 210; Kleila v Kleila, 50 NY2d 277.) IV. Neither the Family Court order of May 16, 1979, nor anything done or omitted by respondent before or thereafter, served to “default” respondent, or force a “concession” by him, on any of the key issues in this litigation; the said order in requiring disclosure, and.the subsequent admission of the financial records of respondent into evidence at the inquest hearing December 5, 1979, are both in error. (Matter of Boden v Boden, 42 NY2d 210; Kleila v Kleila, 50 NY2d 277; Shiffman v Shiffman, 57 AD2d 519; Goodyear v Goodyear, 52 AD2d 775; Schiffman v Schiffman, 64 AD2d 651; Garrel v Garrel, 59 AD2d 885; Schwartz v Schwartz, 59 AD2d 904.) V. New York law, as expressed in Matter of Boden v Boden (42 NY2d 210) and other cases, support the holding of the court below. (Matter of Boden v Boden, 42 NY2d 210; Moat v Moat, 27 AD2d 895; Backstatter v Backstatter, 66 Misc 2d 331; Kleila v Kleila, 50 NY2d 277; Matter of Boy v Gum, 95 Misc 2d 435, revd sub nom. Matter of Boyce v Gumbiner, 68 AD2d 862; Matter of Coniglio v Coniglio, 104 Misc 2d 491; Matter of Carter v Carter, 58 AD2d 438; Susan W. v Noel J.F., 107 Misc 2d 531; Matter of Huffman v Huffman, 93 Misc 2d 790; Heaney v Heaney, 93 Misc 2d 811.) VI. Not only was petitioner’s attempt to conduct a rescission hearing in the Family Court procedurally improper and outside the jurisdiction of the Family Court, but the evidence adduced conclusively demonstrates that the separation agreement was fair and equitable. (Christian v Christian, 42 NY2d 63.) VII. The child support provided by the separation agreement was more than adequate to provide for the needs of the children. (Matter of Carter v Carter, 58 AD2d 438.) VIII. The court below properly vacated the award of counsel fees. (Matter of Ohrstrom v Ohrstrom, 35 AD2d 930; Donnarumma v Donnarumma, 72 AD2d 545; Lamborn v Lamborn, 56 AD2d 623; Stern v Stern, 67 AD2d 253.)
   OPINION OF THE COURT

Gabrielli, J.

In this proceeding instituted in Family Court, petitioner seeks child support payments from respondent in amounts exceeding those provided in the parties’ separation agreement. Family Court granted the petition for upward modification, basing its award on the current needs of the children. The Appellate Division reversed and dismissed the petition, concluding that petitioner had not demonstrated that an increase in child support payments was warranted.

Petitioner and respondent were married in 1964. Two children were born of this marriage. Following marital difficulties, the parties entered into a separation agreement in 1975, which provided that custody would remain with the petitioner mother, and also provided for a declining sum of maintenance and support for petitioner and the children. In 1977, a judgment of divorce was granted based upon the parties having lived separate and apart pursuant to the separation agreement for a period of one year or more (Domestic Relations Law, § 170, subd [6]). The judgment includes a direction that respondent pay certain amounts to petitioner for the support of herself and the children. The amounts specified in the judgment are the same as those agreed upon by the parties in their separation agreement. The judgment also provides that the separation agreement “shall survive and so not be merged” in the judgment, and that jurisdiction of the matter would be retained in Supreme Court, concurrently with Family Court, to enforce or modify the provisions of the judgment.

In 1978, petitioner remarried, and pursuant to the terms of the parties’ agreement (and the judgment of divorce), respondent’s support obligation was reduced to the sum of $3,000 a year for each child. Shortly thereafter, petitioner commenced the present proceeding in Family Court for an order modifying the judgment of divorce to increase the amount of child support payments. Petitioner alleged that a change in circumstances had occurred since entry of the divorce decree warranting an increase in child support, inasmuch as the children were older, their needs were greater, the amounts provided in the decree were inadequate and the financial means of respondent had increased. Petitioner sought modification of the decree in accordance with the children’s needs.

A hearing was held by Family Court, at which petitioner offered evidence regarding her present financial status, the children’s expenses and respondent’s current financial situation (although respondent had conceded his ability to pay any amount by which support was deemed inadequate). Both parties introduced evidence concerning the circumstances surrounding the negotiation and execution of their separation agreement, on the issue of whether it was fair and equitable when made.

Family Court, insofar as is here relevant, ordered respondent to pay increased child support in an amount which brought his total obligation to $5,200 a year for each child. This upward modification of child support was based on Family Court’s finding that the separation agreement, the basis for the existing level of child support, was not fair and equitable when entered into, as it did not provide for a fair allocation of continuing responsibility, nor did it reflect a sense of providing for the future needs of the children. The court then proceeded to redetermine support based upon the current needs of the children.

The Appellate Division reversed (82 AD2d 803), finding that petitioner’s generalized claim of the children’s increased needs and her showing of a significant increase in respondent’s income did not warrant an increase in child support (citing Matter of Boden v Boden, 42 NY2d 210). That court also noted that while the evidence of overreaching by respondent in the execution of the separation agreement may have provided ground for equitable rescission of the agreement, Family Court may not order such rescission, as it lacks equity jurisdiction. There should be a reversal.

Recently, in Matter of Boden v Boden (supra), we considered the effect of a separation agreement on the parties’ efforts to readjust their child support obligations. While the parties to a separation agreement are, in the usual case, bound by its provisions regarding the allocation of the financial responsibility of supporting the children, there are circumstances under which a court may properly modify that stipulated allocation. Having due regard for the assumption that the children’s needs were adequately anticipated and provided for in the parties’ agreement, in Boden we held that the court may nevertheless modify the parties’ respective obligations where it is determined either that the agreement was not fair and equitable when entered into, or that an unanticipated and unreasonable change in circumstances has occurred, resulting in a concomitant need {id., at p 213).

We are cognizant of the broad reading given our decision in Boden by some lower courts (see, e.g., Jaslow v Jaslow, 75 AD2d 876, 878; La Scala v La Scala, 73 AD2d 1068, 1069; Matter of Sacco v Sacco, 69 AD2d 1004, 1005; Matter of Barylski u Barylski, 100 Misc 2d 784, 786; Jarvis v Jarvis, 99 Misc 2d 79, affd sub nom. Jacobson v Jacobson 68 AD2d 809; Matter of Boy v Gum, 95 Misc 2d 435, revd on other grounds sub nom. Matter of Boyce v Gumbiner 68 AD2d 862). Contrary to that broad view, however, the principles enunciated in Boden are not applicable in every case in which increased child support is sought in the face of a separation agreement. An examination of the facts in Boden makes obvious the circumstances to which that case applies. There, the separation agreement between the parents obligated the father to pay a monthly amount for the child’s support and to pay for the child’s college education in an amount and manner set forth in the agreement. When the child reached college age and decided to attend Yale University, the mother sought child support from the father in an amount exceeding that provided in their separation agreement. At the time of the proceeding, the mother was earning an annual salary of $45,000, while the father’s income was approximately $43,000 per year. In seeking increased child support from the father, the mother was not asserting the right of the child to be supported by the father, as the child’s needs could clearly have been met by either parent, given their respective financial situations. Rather, the mother was asserting her own interest in having the father contribute more to the financial burden of raising the child. Thus, the principles set forth in Boden apply only when the dispute is directed solely to readjusting the respective obligations of the parents to support their child (see, e.g., Schiffman v Schiffman, 79 AD2d 971, 972). Moreover, a proceeding of this nature is not properly brought in Family Court, because that court, lacking equity jurisdiction, is without power to set aside or modify the terms of the separation agreement (Kleila v Kleila, 50 NY2d 277, 282).

A different situation is presented, however, where it is the child’s right to receive adequate support that is being asserted. Here, Family Court’s power regarding child support derives from the Family Court Act. Section 461 of that act, insofar as it relates to this case, provides that the parents’ duty to support their child is not diminished by the existence of, inter alia, a separation agreement or judgment of divorce and, in the absence of an order of Supreme Court directing support, Family Court may make an order of support. If such an order of Supreme Court already exists, however, and Supreme Court has not retained exclusive jurisdiction in itself to enforce or modify its order, Family Court is authorized to enforce the order or, on a finding that changed circumstances exist, to modify it.

Thus, the principles iterated in Boden did not alter the scope of Family Court’s power to order support where the dispute concerns the child’s right to receive adequate support. In the present case, because a pre-existing Supreme Court order directs child support payments and grants concurrent jurisdiction in Family Court to enforce or modify the order, Family Court could properly order an increase in the child support award if petitioner has demonstrated a change of circumstances (Family Ct Act, § 461, subd [b]) warranting such an upward modification. Petitioner introduced evidence tending to show, among other things, that the combination of her own income and the payments contributed by respondent does not adequately meet the children’s needs. Specific items of expense have been detailed, as well as petitioner’s and respondent’s respective financial situations.

Whether the evidence adduced by the parties shows a change of circumstances sufficient for Family Court to order a modification is a question best left to the discretion of the lower courts, whose primary goal is, of course, to make a determination based upon the best interests of the children (Matter of Di Pillo v Di Pillo, 59 AD2d 927). Considering both the circumstances as they existed at the time of the prior award and at the time the application is made several factors may, in a proper case, enter into the determination, including the increased needs of the children due to special circumstances or to the additional activities of growing children (Ward v Ward, 79 AD2d 683), the increased cost of living insofar as it results in greater expenses for the children (Matter of Covington v Clavin, 70 AD2d 592), a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent (Matter of Goldberg v Aylward, 72 AD2d 510; Matter of Delli Veneri v Delli Veneri, 40 AD2d 735), and the current and prior life-styles of the children. Consideration of such factors in a given case may lead to the determination that the children’s best interests require an upward modification of the child support award.

We do not interpret the Appellate Division’s reversal of Family Court’s order as having been made on the basis of the guidelines we set forth today. Accordingly, its order should be reversed, with costs, and the matter remitted to that court for further proceedings in accordance with this opinion.

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

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

      . Subdivisions (a) and (b) of section 461 of the Family Court Act provide, in full, as follows:
      “(a) A separation agreement, a decree of separation, and a final decree or judgment terminating a marriage relationship does not eliminate or diminish either parent’s duty to support a child of the marriage under section four hundred thirteen of this article. In the absence of an order of the supreme court or of another court of competent jurisdiction requiring support of the child, the family court may entertain a petition and make an order for its support.
      “(b) If an order of the supreme court or of another court of competent jurisdiction requires support of the child, the family court may
      “(i) entertain an application to enforce the order requiring support; or
      “(ii) entertain an application to modify such order on the ground that changed circumstances requires such modification, unless the order of the supreme court provides that the supreme court retains exclusive jurisdiction to enforce or modify the. order.”

      . Under the provisions of section 466 of the Family Court Act, Supreme Court may, in an order or decree granting support or maintenance in an action for divorce, separation or annulment, grant exclusive jurisdiction in Family Court to enforce or modify Supreme Court’s order or decree (subd [a]), or it may retain exclusive jurisdiction for such purposes in Supreme Court (subd [b]). If Supreme Court does not expressly exercise this authority, Family Court may nevertheless entertain an application to enforce the order or decree, or to modify it, pursuant to subdivision (c) of this section.


text:
    The People of the State of New York, Appellant, v James Bennette, Respondent.
    Argued February 19, 1982;
    decided May 11, 1982

      POINTS OF COUNSEL

      Eugene Gold, District Attorney (Mary Brienza of counsel), for appellant.
    The lower court erred as a matter of law in advancing a rule precluding all cross-examination of a defendant about a prior conviction for sodomy, notwithstanding any probative value the evidence might have. (People v Sandoval, 34 NY2d 371; People v Caviness, 38 NY2d 227; People v Ocasio, 47 NY2d 55; People v Davis, 44 NY2d 269; People v Mayrant, 43 NY2d 236; People v Mackey, 49 NY2d 274; People v Watson, 57 AD2d 143, 45 NY2d 867; People v Shields, 58 AD2d 94, 46 NY2d 764.)

      Jerome Rosenbluth for respondent.
    I. The mention of defendant’s previous criminal record by the People’s witness in response to a question of the police officer responsible for the investigation and which had no relevance to the question asked, on cross-examination of the direct witness constituted prejudicial error. (People v Horie, 258 App Div 246; People v Capola, 263 App Div 57; People v Smith, 20 AD2d 579; People v Kelly, 38 AD2d 1004; People v Laguna, 34 AD2d 581.) II. The court abused its discretion, pursuant to a Sandoval motion, in letting the prior conviction come in. (People v Sandoval, 34 NY2d 371; People v Johnson, 64 AD2d 907.) III. The failure of defense counsel to request a Wade hearing was a miscarriage of justice. IV. The court below is the ultimate finder of facts and its decision should not be disturbed.
   OPINION OF THE COURT

Wachtler, J.

A jury found the defendant guilty of robbery, burglary and assault. The Appellate Division reversed the conviction on the law and ordered a new trial. It held that the trial court abused its discretion in permitting the prosecutor to impeach the defendant’s credibility by questioning him about a prior conviction involving sodomy of an eight-•year-old girl. One Justice dissented and granted the People leave to appeal to this court.

The robbery occurred at a Brooklyn apartment on the evening of May 20, 1976. The complainant stated that on that date she left her fifth-floor apartment at approximately 7:00 p.m. and returned four hours later. When she turned her key she found that the door was not locked. At this point the defendant opened the door from the inside, told her in obscene terms that she did not need a key and pointed a gun at her. Complainant also noticed that defendant was carrying a toaster oven which her daughter had given her for Mother’s Day. As the complainant turned away the defendant struck her with the gun on the nape of the neck knocking her to the ground but not rendering her unconscious. He then ran into the adjoining apartment where he resided with his sisters.

Subsequent investigation by the complainant’s children and the police showed that her apartment had been ransacked. A door at the rear of the apartment, leading to a “terrace”, had been found open and a window next to the door had been broken. It was also noted that complainant’s terrace was separated from the adjoining terrace by a fiberglass partition.

At the trial, held in February, 1977, defendant testified on his own behalf. He admitted residing next to complainant’s apartment at the time of the crime but denied any involvement in it. He claimed that he had been in his apartment when he heard a scream. He then went out to the hall where he met several neighbors, one of whom knocked on the complainant’s door but received no response. He remained in the hall approximately 10 minutes talking with the neighbors and then returned to his apartment. He had not reported the incident to the police or the apartment security officers.

Before the defendant testified, his attorney applied to the court to preclude the prosecutor from questioning the defendant concerning a 1973 felony conviction for which he had received a four-year sentence and was, in fact, still on parole. Counsel noted that the conviction was for a sex offense involving a child “about ten years of age”. The application was “predicated solely on the inflammatory nature of the * * * crime that is involved”. After hearing the prosecutor, who opposed the application, the court denied the defendant’s request. The court held that the conviction showed that the defendant had previously advanced his interests at the expense of society; that it was therefore probative of the defendant’s honesty and integrity and that it would be “unfair” for the defendant to testify without permitting the jury to consider this conviction in assessing his credibility.

Thus at the trial the defendant admitted that he had previously pleaded guilty to a crime. On cross-examination he initially stated that the victim of that crime was a child “about 10 years old”, but later conceded that she was only eight. When asked what the conviction was for he simply stated “a sodomy act” and became evasive when the prosecutor asked him what he had done. The court then rephrased the prosecutor’s question as follows:

“The Court: What did you tell the judge when you pleaded guilty?
“The [defendant]: I told the judge that I committed a sexual act with a 10 year old.
“The Court: What kind of sexual act?
“The [defendant]: What do you mean.
“[The prosecutor]: Isn’t it correct you placed your penis in the mouth of an eight year old girl by force?
“[The defendant]: Yes.
“[The prosecutor]: No further questions.”

As noted, the Appellate Division reversed and ordered a new trial concluding that the trial court abused its discretion in permitting this line of questioning (80 AD2d 858). It also suggested (p 859) that the trial court had acted improperly by “interrupting] the prosecutor’s cross-examination to adduce the underlying facts of the prior crime”. The Appellate Division stated (p 859) that the “specific nature” of the prior conviction” “is such as would inflame a jury so as to render any probative worth it might have secondary to the prejudice which would be created by it§ divulgence”. The court also held (p 859) that the “prejudice created is apparent in view of the tenuousness of the People’s case.” The dissenting Justice perceived no abuse of discretion noting (p 859) that if evidence of the prior crime created a risk of undue prejudice it was only “because of the defendant’s choice of the victim”.

We have repeatedly emphasized that the question as to' whether a prosecutor should be precluded from impeaching a defendant’s credibility by reference to prior immoral, vicious or criminal acts “is largely, if not completely, a matter of discretion which rests with the trial courts and fact-finding intermediate appellate courts” (People v Shields, 46 NY2d 764, 765; see, also, People v Mackey, 49 NY2d 274, 281-282; People v Brown, 48 NY2d 921; People v Sandoval, 34 NY2d 371, 375). In this instance, however, the Appellate Division did not rest its determination upon the exercise of its discretionary powers, but chose instead to decide the question as a matter of law. Its order specifically recites that the reversal is “on the law” and its memorandum opinion confirms the fact by establishing what appears to be an inflexible rule prohibiting the prosecutor from impeaching the defendant’s credibility by cross-examination on prior sexual offenses involving a child, at least where some weaknesses are evident in the prosecutor’s case. While we agree that those factors might properly serve as a basis for excluding evidence of a prior crime, we do not agree that the trial court was bound to do so as a matter of law.

Initially we recognize, as we have in the past, that evidence of the defendant’s criminal record necessarily presents some risk of prejudice to his case (People v Sandoval, 34 NY2d 371, 376, supra). When the prior crime is identical or similar to the offense charged the jury may, improperly, consider it as evidence of the defendant’s predisposition to commit the crime charged (People v Sandoval, supra, pp 377-378; People v Caviness, 38 NY2d 227, 232-233; People v Dickman, 42 NY2d 294; People v Carmack, 44 NY2d 706; but, also, People v Hendrix, 44 NY2d 658; People v Greer, 42 NY2d 170). Even when, as here, the prior crime is essentially different in nature from the offense charged the defendant may be prejudiced if the jury views him as a person worthy of punishment because of his past record (People v Davis, 44 NY2d 269, 274). Undoubtedly this risk is most pronounced when the defendant’s criminal conduct is more serious than usual. Nevertheless we have declined to prescribe fixed rules prohibiting or allowing the use for credibility purposes of prior offenses based solely upon the potentially inflammatory impact of the crime or the victim involved, even in the sensitive area of sex offenses (see, e.g., People v Greer, 42 NY2d 170, 175-176, supra). These are factors which may limit or enlarge the trial court’s discretion but they do not eliminate it. The court must also consider the potential prejudice to the prosecution and the fact-finding process of denying the jury access to probative, perhaps even crucial, evidence of the defendant’s credibility.

In this case the defendant’s credibility was an important issue at the trial. As noted, there was other evidence pointing to the defendant’s guilt, but it was not conclusive. In essence the jury had to decide whether to credit the victim’s identification or the defendant’s claim of innocence.

The defendant’s conviction for sodomy was not irrelevant to the question of his veracity. Although sodomy is not the type of crime which necessarily involves an act of dishonesty — like perjury, fraud, bribery and similar offenses — it may, as the trial court recognized, indicate a willingness or disposition by the defendant to voluntarily place “advancement of his individual self-interest ahead of principle or of the interests of society” and thus “may be relevant to suggest his readiness to do so again on the witness stand” (People v Sandoval, supra, p 377). Of course an impulsive or uncontrollable act may have little or no relevance to a defendant’s credibility; but in this case there was no suggestion, at trial or on appeal, that the defendant did not act voluntarily and deliberately when he committed the act of sodomy. A person ruthless enough to sexually exploit a child may well disregard an oath and resort to perjury if he perceives that to be in his self-interest.

The probative value of this evidence was not diminished by the passage of time. This was not an incident buried deep in the defendant’s past. It was, as the prosecutor noted, a recent conviction. Indeed at the time of trial the defendant was still on parole as a result of this conviction. In addition this is not a case where the defendant’s credibility had been or was capable of being impeached by the use of other less sensitive incidents. Thus it cannot be said that it was unnecessary for the prosecutor to bring this particular conviction to the jury’s attention. In sum, despite the inflammatory nature of the proof there were legitimate and perhaps compelling reasons for permitting the People to cross-examine the defendant concerning his prior conviction for sodomy and thus justification for the exercise of discretion by the trial court.

The scope of the cross-examination was also subject to the trial court’s discretion (see, e.g., People v Greer, 42 NY2d 170,176, supra), which of course should be carefully exercised in such a case. When evidence of a prior crime is relevant only to the defendant’s credibility, extensive inquiry into all or most of the details of a sordid offense would not be justified and would be unduly prejudicial. On the other hand, the prosecutor need not immediately cease cross-examination on the point once the defendant supplies the title of the offense for which he was found guilty. The court may — as it did in this case — permit further questioning for the purpose of determining, at least in general terms, what conduct gave rise to the conviction. And despite the Appellate Division’s suggestion to the contrary, the court in this case did not act improperly in addressing a few questions to the defendant on this subject. As noted earlier the defendant became evasive when questioned by the prosecutor on this point and the court simply and legitimately rephrased the question in order to obtain a more responsive answer.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for review of the facts.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Fuchsberg concur; Judge Meyer taking no part.

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

       The District Attorney’s Appellate Division brief and the Appellate Division memorandum state that the defendant was previously convicted of sexual abuse. It appears however, as the defendant himself stated at trial, that he actually pleaded guilty to sodomy.