text:
    In the Matter of James Gibides, Jr., Respondent, v Robert Powers, as Chief of Police of the Town of Camillus, et al., Appellants.
    Argued October 26, 1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      Ronald S. Carr for appellant.

      Vincent Finocchio for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division reversed, with costs, and the judgment of Supreme Court, denominated an order and judgment, reinstated. It is not necessary that the town board support its dismissal of petitioner police officer with a finding of moral turpitude or deviance. On the instant charges, arising out of an automobile accident, it was found that petitioner failed to use good skill and judgment, failed to obey traffic regulations, and displayed incompetence in operating a department vehicle. In addition, in arriving at a sanction, the board recognized, as it was entitled to, that petitioner’s generally unfavorable driving record indicated, among other things, two prior personal injury motor vehicle accidents (Matter of Bal v Murphy, 43 NY2d 762). A police force, especially a small police force in a rural community, occupies a publicly exposed sensitive status, and would properly be embarrassed by repeated motor vehicle accidents involving one of its members, despite his otherwise good record in the department. Hence, it cannot be said that dismissal was "so disproportionate to the offense as to be shocking to one’s sense of fairness” (Matter of Pell v Board of Educ., 34 NY2d 222, 237).

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

Order reversed, with costs, and the judgment of Supreme Court, Onondaga County, reinstated in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph A. Gilliard, Jr., et al., Respondents, v Long Island Railroad Company, Appellant.
    Argued October 19, 1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      William F. McNulty, George M. Onken, Anthony J. Mc-Nulty and William Pallas for appellant.

      Anthony J. De Marco, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial granted, limited to the issue of liability only, with costs to abide the event.

During the trial two of the plaintiffs’ witnesses, over the objection of the defendant, were permitted to testify that six years prior to the accident in issue there had been another accident between a train and an automobile at the same intersection. This testimony would be admissible only if it is shown that the relevant conditions of the prior accident and the accident at issue were substantially the same (Flansberg v Town of Elbridge, 205 NY 423, 431; Richardson, Evidence [10th ed], § 196).

Seeking to circumvent this rule, plaintiffs argue that this requirement of substantial similarity was satisfied simply because the proof established that "the approach” to the grade crossing was "in substantially the same condition” at the time of both accidents. However, defendant introduced no proof as to what the other conditions were at the time of the prior accident. The accident involving the plaintiff occurred in broad daylight whereas the prior accident occurred at night. There was no proof as to the speed of the approaching train at the time of the prior accident, whether or not the crossing whistle or bell were sounded, what the operator of the vehicle did or did not do before crossing the tracks, the direction or the speed of that vehicle. In short, the only similarity between the two accidents was apparently their occurrence at the same grade crossing. Neither of the witnesses recalled any of the circumstances surrounding the prior accident and thus there was no showing the relevant conditions were the same or substantially the same.

Defendant’s motion to strike this testimony should have been granted.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order reversed, etc.


text:
    The People of the State of New York, Respondent v Kenneth Ray Jennings, Appellant.
    Argued October 19, 1978;
    decided November 28, 1978
    APPEARANCES OF COUNSEL

      Howard B. Comet, James J. McDonough, Matthew Muraskin and Michael J. Obus for appellant.

      Denis Dillon, District Attorney (Martin I. Saperstein, Wil

      Ham C. Donnino and Marshall D. Trager of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed. The issue presented in this case is whether the activities of the defendant, as observed by the police, justified the blocking of defendant’s vehicle so as to prevent its forward movement.

While on routine patrol in an unmarked car two police officers, serving as members of the Nassau County Police Department crime prevention unit, parked their vehicle in the Lake Success Shopping Center. During the period of observation they noticed codefendant Milton walking back and forth in front of several stores in the shopping center. One of the officers followed Milton who walked to the rear and then returned to the front of the shopping center. Milton met defendant Jennings, who had exited from a restaurant, and they then drove to an adjacent parking lot. The officers pursued them, and blocked their vehicle by pulling up perpendicularly in front of it.

The relatively innocuous behavior of the defendant prior to the stop might at most have justified an inquiry and investigation to determine if criminal activity was at hand (People v De Bour, 40 NY2d 210). But, in blocking defendant’s vehicle with their own, the officers engaged in excessively intrusive conduct which "significantly] interrupt[ed] * * * [defendant’s] liberty of movement”, thereby effecting an unconstitutional seizure (People v Cantor, 36 NY2d 106, 111). Defendant’s statements which flowed directly from the illegal seizure, should therefore have been suppressed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order reversed, etc.


text:
    In the Matter of the Estate of Concetta Grasta, Deceased. Michael P. Grasta, as Executor of Concetta Grasta, Deceased, Respondent; Theresa Rizzo et al., Appellants.
    Argued October 20, 1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      Lawrence D. Chase for appellants.

      David A. White for respondent.
   OPINION OF THE COURT

Order affirmed, with costs payable personally by the appellants, on the memorandum at the Appellate Division (61 AD2d 1120).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Elgin National Industries, Inc., et al., Appellants, v Somerset Construction Company, Inc., Respondent, et al., Defendants.
    Argued October 19, 1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      Larry F. Gainen and Martin I. Shelton for appellants.'

      Robert M. Blum and Jonathan J. Fink for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (59 AD2d 869).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of David Buffett, Appellant, v Municipal Civil Service Commission of the City of Plattsburgh et al., Respondents. In the Matter of William Lombard, Appellant, v Municipal Civil Service Commission of the City of Plattsburgh et al., Respondents.
    Argued October 25, 1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      John L. Bell for appellants.

      Thomas A. Robinson for Municipal Civil Service Commission of the City of Plattsburgh, respondent.

      Robert T. Booth for Board of Education of the City of Plattsburgh School District, respondent.
   OPINION OF THE COURT

In each case: Order affirmed, with costs, on the opinion by then Presiding Justice Harold E. Koreman at the Appellate Division (58 AD2d 362).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Church of the Ascension et al., Respondents, v New York State Racing and Wagering Board et al., Appellants, et al., Respondent.
    Submitted November 20, 1978;
    decided November 28, 1978
   Motion to declare the issues in the appeal moot and summarily reverse the order of the Appellate Division denied.


text:
    Fantis Foods, Inc., Plaintiff, v Standard Importing Co., Inc., et al., Defendants. Standard Importing Co., Inc., Respondent, v Synergal, Ltd., Appellant.
    Submitted October 23, 1978;
    decided November 28, 1978
   Motion to dismiss the appeal or to require an undertaking denied.


text:
    In the Matter of Harry Schwartz et al., Appellants, v John G. Heimann, as Commissioner of the Division of Housing and Community Renewal of the State of New York, et al., Respondents, and Brightwater Towers, Inc., Intervenor-Respondent.
    Submitted October 2, 1978;
    decided November 28, 1978
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous determination of the Appellate Division.


author: Wachtler, J. Jasen, J.

text:
    The People of the State of New York, Appellant, v Sterling Moore, Respondent.
    Argued September 15, 1978;
    decided November 30, 1978

      POINTS OF COUNSEL

      Eugene Gold, District Attorney (Howard M. Rubin of counsel), for appellant.
    I. The trial court properly applied CPL 20.40 (subd 4, par [g]). (People v Hetenyi, 304 NY 80; Matter of Steingut v Gold, 42 NY2d 311.) II. Respondent was adequately represented by trial counsel. (United States v Yanishefsky, 500 F2d 1327; United States v Currier, 405 F2d 1039; People v Brown, 7 NY2d 359; People v Smith, 31 AD2d. 847; United States v Benn, 476 F2d 1127; Walker v Henderson, 492 F2d 1311; People v Girardi, 2 AD2d 701.) III. The trial court properly excluded Officer Knox’s police report. (People v Jackson, 40 AD2d 1006.)

      Lawrence J. D. Mort for respondent.
    I. The trial court, by deciding that Kings County had jurisdiction and completely withholding consideration of the issues with respect thereto from the jury, wrongfully usurped the function of the jurors as the exclusive finders of fact. (People v Hetenyi, 277 App Div 310, 301 NY 757; People v Simeone, 29 AD2d 650; People v Mosher, 12 AD2d 878; United States v Jones, 480 F2d 1135; Roe v United States, 287 F2d 435; People v Mussenden, 308 NY 558.) II. Kings County had no jurisdiction to indict, try and convict respondent when the undisputed evidence places the entire offense in an ascertainable location within Queens County, viz., a parking lot in Highland Park; CPL 20.40 (subd 4, pars [c], [g]) are inapplicable in these circumstances. (Matter of Steingut v Gold, 42 NY2d 311; People v Greene, 3 AD2d 768; People v Kohut, 17 NY2d 705; People v Schlatter, 55 AD2d 922; People v Epstein, 47 AD2d 661; People v Caplandies, 57 AD2d 971.) III. The court below erroneously concluded that no issue had been raised with respect to the sufficiency of the facts inasmuch as insufficiency of evidence regarding venue was central to respondent’s argument below. IV. Respondent has not received the effective assistance of counsel required by the Sixth Amendment, due to defense counsel’s failure to adequately investigate and prepare for trial, which resulted in the failure to put respondent on the stand, failure to call witnesses favorable to respondent, failure to develop any case for respondent (including but not limited to the crucial issue of consent), thereby rendering his trial and conviction a farce and mockery of justice. (People v Bennett, 29 NY2d 462; Goodwin v Swenson, 287 F Supp 166; Smotherman v Beto, 276 F Supp 579; Beasley v United States, 491 F2d 687; United States v Easter, 539 F2d 663.) V. The trial court committed error in denying admission of Officer Knox’s police report, which contained exculpatory medical evidence, and respondent was thereby prejudiced. (Johnson v Lutz, 253 NY 124; Kelly v Wasserman, 5 NY2d 425; Zaulich v Thompkins Sq. Holding Co., 10 AD2d 492; Chemical Leaman Tank Lines v Stevens, 21 AD2d 556.)
   OPINION OF THE COURT

Wachtler, J.

The defendant was indicted and convicted in Kings County for rape and sexual abuse in the first degree. The offenses allegedly occurred in the defendant’s car while parked in Queens County near the Kings County border. The trial court held, as a matter of law, that Kings County had jurisdiction to prosecute the offenses pursuant to CPL 20.40 (subd 4, pars [c], [g]). The Appellate Division reversed and ordered a new trial on the ground that a question of fact was presented as to whether the crimes were committed within 500 yards of the boundary between the two counties (see CPL 20.40, subd 4, par [c]). On this appeal the prosecutor urges that Kings County had jurisdiction pursuant to CPL 20.40 (subd 4, par [g]) which states: "An offense committed in a private vehicle during a trip thereof extending through more than one county may be prosecuted in any county through which such vehicle passed in the course of such trip.” The prosecutor also argues that there was no question of fact with respect to the application of the statute in this case.

At the trial the complainant testified that she resided in Brooklyn and had been acquainted with the defendant for approximately three years prior to the incident. On May 12, 1974, she went with the defendant to a Brooklyn social club where he was employed. They went in the defendant’s car and, on the way, picked up the complainant’s girl friend who also resided in Brooklyn. At approximately 10 p.m. the women asked the defendant to take them home. The defendant first brought complainant’s girl friend home and then briefly returned to the club to speak with his employer. Later, while driving the complainant home the defendant entered Highland Park, stopped in a parking lot and told her that he wanted to have intercourse with her. When she refused, he assaulted and raped her. Afterwards, as they were leaving the park, the defendant stopped for a traffic light and the complainant jumped from thé car and escaped.

A police officer testified that Highland Park is on the border between Kings and Queens County and that the parking lot is located in Queens County. He initially stated that the place where the incident occurred is approximately 100 yards from the county line but later testified that he had measured the distance in a police car and that it was less than three tenths of a mile from Brooklyn. The People also submitted a map of the area marking the place where the crime occurred. The defendant did not testify or call any witnesses on his behalf.

During the trial the defendant argued that the jurisdictional issue should be submitted to the jury as a question of fact. At that stage the court informed the jury pro tanto that the evidence was relevant because a crime committed within 500 yards of the county line could be prosecuted in either county and took judicial notice of the fact that the place where the complainant said the crime occurred was less than 500 yards from the border. The court also stated that it would be for the jury to decide "where the alleged crime took place” and that they would receive additional instructions later. However, before formally charging the jury, the court advised the parties that it had decided to deny the defendant’s motion and that it would not permit the jury to pass on the question of jurisdiction. The court expressly relied on CPL 20.40 (subd 4, par [g]) and noted that "There, isn’t any question from the evidence so far adduced in this case that this vehicle started the trip in the Borough of Brooklyn, went through the Borough of Queens and went back into the Borough of Brooklyn.”

The following day the court stated to the parties that it wanted to make it clear that the defendant’s motion, with respect to the jurisdictional issue was denied and "that the court has ruled that the alleged crime was committed in the County of Kings.” The court, then explained that it did not mean that the crime was physically committed in Kings County but "within five hundred yards in accordance with the statute” and that this determination was based on a mathematical calculation of the distance from the map in evidence and on the police officer’s testimony which had not been refuted, that the crime scene identified by the complainant was less than three tenths of a mile from the county line. Subsequently, during the charge to the jury the court stated "At the outset I want to say to you that I have decided the legal question as to whether or not this court has jurisdiction in Kings County so that you are not to concern yourself with that question at all.”

On this appeal the People do not rely on CPL 20.40 (subd 4, par [c]). They concede that the Appellate Division correctly held that a question of fact was presented as to whether the crimes were committed within 500 yards of the county line. The People urge, however, that Kings County acquired jurisdiction pursuant to CPL 20.40 (subd 4, par [g]) and that the trial court properly held that there was no question of fact for the jury to resolve since it is undisputed on this record that the crimes occurred in a private vehicle which had passed through Kings County to Highland Park in Queens County. The defendant argues that this statute has no application to cases where the crime alleged occurred at an ascertainable location. In the alternative he claims that it was still for the jury to decide,, as a question of fact, whether the crimes were committed in the defendant’s car during a trip through both counties as the complainant had testified.

At common law and under the State Constitution the defendant has the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise (People v Goldswer, 39 NY2d 656, 659-661; NY Const, art I, § 2). The burden is on the People to prove that the county where the crime is prosecuted is the proper venue because either the crime was committed there (People v Hetenyi, 277 App Div 310, affd 301 NY 757; see, also, People v Hetenyi, 304 NY 80) or one of the statutory exceptions is applicable (People v Tullo, 34 NY2d 712). Venue, however, need not be proven beyond a reasonable doubt; a preponderance of the evidence will satisfy the People’s burden (People v Hetenyi, supra; People v Tullo, supra). Any question with respect to where a boundary lies should usually be decided by the court (People v Hillman, 246 NY 467). But generally it is for the jury to decide, as a matter of fact, the place where the crime was committed (People v Hetenyi, supra) or any other fact relevant to venue (People v Tullo, supra).

When the defendant requests the court to instruct the jury to determine the factual predicate for the venue it has been held to be error to refuse the charge even though the People’s proof with respect to venue may be uncontradicted (People v Hetenyi, supra). It is fundamental that the defendant’s plea of not guilty puts the People to their proof on the indictment and is alone sufficient to raise factual issues for the jury to resolve with respect to the credibility and sufficiency of the People’s evidence (People v Walker, 198 NY 329; People v Coleman, 42 NY2d 500, 508). The same principle applies generally to the venue issue (People v Hetenyi, supra). That is not to say that the court must always charge the jury with respect to venue. The defendant may concede that the venue is proper or he may admit the facts upon which venue is based (cf. People v Brady, 16 NY2d 186, 190). And of course the defendant may fail to request the charge. But when requested to submit the issue to the jury it is doubtful whether it would ever be proper for the court to deny the request and decide the issue as a matter of law on the theory that the People have met their burden by uncontradicted proof.

In any event in this case even if the complainant’s testimony were credited, Kings County could not establish jurisdiction by relying solely on the private vehicle trip statute (CPL 20.40, subd 4, par [g]) in view of the complainant’s ability to otherwise identify the place where the crime was allegedly committed. Statutory exceptions to the rule that the prosecution should be held at the place where the crime was committed were created out of necessity. Strict adherence to the common-law rule often created insurmountable obstacles to prosecution. For instance, if part of the crime had been committed in one county and part in another the defendant could not be tried in either (Murtagh v Liebowitz, 303 NY 311, 316). In this and similar cases where the law would otherwise be frustrated, the general rule was altered by statute to insure that there would always be some forum where the crime could be prosecuted (see, e.g., 1 Chitty, Criminal Law, pp 179-189; 4 Blackstone’s, Commentaries, pp 303-306).

The private vehicle trip statute (CPL 20.40, subd 4, par [g]) went into effect in 1971 as part of the over-all redrafting of the former Code of Criminal Procedure (see, L 1970, ch 996, § 1). It had no counterpart in prior law (but cf. Code Crim Pro, § 137). The drafters noted however that CPL 20.40 (subd 4) — of which the private vehicle statute is a part — was designed to apply "in certain narrow situations, such as those involving offenses committed on bridges, trains, and ships, or on designated bodies of water” (see Commission Staff Comment to Proposed CPL 10.40, subd 4, now CPL 20.40, subd 4). The purpose of the statute is readily apparent. When a crime is committed in an automobile during the course of a trip it may be impossible to determine in what county the offense occurred. In those cases the statute insures a forum by authorizing prosecution of the offense in any county through which the vehicle passed in the course of the trip. The problem, however, was never encountered in this case since here the complainant was able to identify the place where the crime was committed despite the use of the automobile. Thus the statute is inapplicable.

We also note that although the statute was only recently enacted in this State, it has a long history in other jurisdictions. There it has been held that the statute serves a limited purpose by assuring "that venue will lie somewhere when the exact site of an offense cannot be ascertained because it was committed in a moving vehicle” (People v Bradford, 17 Cal 3d 8, 16) or "during journeys from place to place” (Commonwealth v Stefanowicz, 133 Pa Super Ct, 501, 504), and "must be held inapplicable where, as here, the location of the crime is readily identifiable” (People v Bradford, supra, p 17; see, also, Watt v People, 127 Ill 9; People v Goodwin, 263 Ill 99; Commonwealth v Tarsnane, 170 Pa Super Ct 265). There is nothing in the history of CPL 20.40 (subd 4, par [g]) to indicate that the Legislature intended it to serve any broader purpose than this or to have any wider application. In response to the dissenter, suffice it to say that our determination that the order of the Appellate Division should be affirmed does not flow from a sense of justice denied nor a spirit of mercy but rather an accurate reading and application of the law and its historical relevance. To characterize this as a technicality without "social significance or impact” is to demean the purpose of judicial review.

Accordingly the order of the Appellate Division should be affirmed.

Jasen, J.

(dissenting). Notwithstanding the defendant’s commission of a crime in a private vehicle during the course of a trip through more than one county, the majority holds the private vehicle trip statute (CPL 20.40, subd 4, par [g]) inapplicable because of the victim’s ability to identify the situs of the criminal act underlying the prosecution. As I would not place so narrow a construction upon this statute, I dissent.

CPL 20.40 (subd 4, par [g]) provides: "An offense committed in a private vehicle during a trip thereof extending through more than one county may be prosecuted in any county through which such vehicle passed in the course of such trip.” The mandate of this statute is broad: permitting prosecution of a crime committed during the course of a multicounty trip in any county through which the vehicle passed. Nowhere in this statute is authorization to prosecute qualified in a case in which, as here, the county in which the crime was committed can be identified. Had the Legislature intended to limit application of the trip statute in this manner, it could have easily accomplished its purpose. In view of the absence of any manifest legislative intent indicating such a qualification, I would construe the trip statute literally to authorize prosecution of the instant case in either Kings or Queens County.

It is true that at common law a defendant in a criminal prosecution had the right to be tried by a jury selected from the vicinage or neighborhood, which was construed to mean the county in which the crime was committed. (People v Goldswer, 39 NY2d 656, 659, citing 4 Blackstone’s Commentaries, p 344; 1 Chitty, Criminal Law [5th Amer ed], p 177.) However, the practical difficulties attendant to the application of this rule in a prosecution of a defendant for a single criminal act committed partly in one county and partly in another or committed in more than one county soon provided the impetus for curative legislation designed to avoid the conclusion reached at common law that a defendant in such a case could not be prosecuted. For example, as early as 1534, defendants accused of committing crimes in Wales could be indicted and tried before juries in adjoining English counties. (26 Hen VIII, c 6 [1534]; see Blume, Place of Trial of Criminal Cases: Constitutional Vicinage and Venue, 43 Mich L Rev 59, 62.)

To be distinguished for present purposes is the concept of jurisdiction, which unlike venue, goes to the general power or competence of a court to try a defendant accused of the commission of a crime. The vital distinction between these often interchangeably, albeit imprecisely, used terms is at once demonstrated by operation of the principle that although venue may be waived by a defendant, jurisdiction, where absent, cannot be conferred upon a court by a defendant’s waiver. (See Brown v State, 219 Ind 251; 1 Bishop, New Criminal Procedure [2d ed], p 24.) Whereas a court’s jurisdictional limitations must be strictly construed, venue statutes permitting prosecution of a crime in more than one county are remedial in nature and should be liberally construed. (See, e.g., People v Licenziata, 199 App Div 106; see, generally, Venue-Homicide Committed in Two Counties, Ann., 73 ALR3d, § 2, pp 907, 914.)

In the instant case, it is clear that Supreme Court, Kings County, had jurisdiction or competence to try a defendant accused of having committed the crimes of rape and sexual abuse. Inasmuch as the vehicle trip statute (CPL 20.40, subd 4, par [g]) does not limit its remedial operation to instances in which the precise location of the alleged criminal act cannot be determined, I would construe its mandate liberally to permit a trial of defendant in either Kings or Queens County. Had the Legislature intended to except this situation from operation of the vehicle trip statute, it could have easily done so. (See, e.g., Ill Ann Stats, ch 38, § 1-6, subd [f]; Kan Stats Ann, § 22-2608; La Code Crim Pro Ann, art 612 [specifically excepting the case in which the location of the crime can be determined].)

In the posture in which this case comes before us, there exists all the more reason to construe the vehicle trip statute liberally: The defendant has already been tried and convicted of rape and sexual abuse in Kings County. To place upon the complainant the onerous burden of participating in a second trial asks, in my opinion, too much, especially where, as in this case, the defendant can voice no substantial objection to being tried in Kings County. After all, the purpose behind requiring, as a general rule, that a defendant be tried in the county in which he is alleged to have committed a crime is to protect the defendant against unfairness or hardship arising from prosecution in a remote or unfamiliar locale. (United States v Cores, 356 US 405, 407.) Here, the rape occurred in New York City within a short distance of the Kings County border, the county in which the defendant was arrested and of which he is a resident. In my view, this case provides little reason for denying, the literal application of the express terms of the vehicle trip statute.

In final analysis, the pity of this case is that the majority feels obliged to go beyond the literal meaning of a statute not to preserve integrity in the fact-finding process, not to preserve the fairness of trial, not to sustain principled conduct in a civilized society, nor to obey constitutional principles. Instead, a defendant guilty by overwhelming evidence of a heinous crime, obtains a retrial for which if it ever happens, will add further insult to the injury already sustained by a victim who was a teenager at the time of the crime. No sense of justice, no spirit of mercy, nor any principle of law requires the result reached — reversal of a conviction on a technicality without social significance or impact, except that obnoxious significance which empty technicalities enjoy.

Accordingly, I would reverse the order of the Appellate Division and reinstate the judgment of conviction.

Judges Gabrielli, Fuchsberg and Cooke concur with Judge Wachtler; Judge Jasen dissents and votes to reverse in a separate opinion in which Chief Judge Breitel and Judge Jones concur.

Order affirmed.

      . Kings County and Brooklyn are referred to interchangeably since they both embrace the same geographic area.

      . CPL 20.40 (subd 4, par [c]) states "An offense committed within five hundred yards of the boundary of a particular county, and in an adjoining county of this state, may be prosecuted in either such county.”


author: Jasen, J.

text:
    The People of the State of New York, Appellant, v Edward McGrath, Respondent. In the Matter of Ugo Mancini, Respondent, v Michael J. Codd, as Police Commissioner of the City of New York, Appellant.
    Argued October 18, 1978;
    decided November 30, 1978

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Peter L. Zimroth and Edward Agnew McDonald of counsel), for appellant in the first above-entitled case.
    I. Defendant’s guilt of evasive contempt was proved beyond a reasonable doubt. (People v De Feo, 284 App Div 622, 308 NY 595; People v Ianniello, 36 NY2d 137, 423 US 831; Matter of Ruskin v Detken, 32 NY2d 293; People v Ianniello, 21 NY2d 418, 393 US 827; People ex rel. Valenti v McCloskey, 6 NY2d 390; Matter of Finkel v McCook, 247 App Div 57, 271 NY 636; People v Renaghan, 33 NY2d 991; O’Connell v United States, 40 F2d 201, 296 US 667; People v Saperstein, 2 NY2d 210, 353 US 946.) II. The complete record of defendant’s Grand Jury appearances was properly admitted into evidence. (Radosh v Shipstad, 20 NY2d 504; People v Feldman, 299 NY 153; People v Saperstein, 2 NY2d 210, 353 US 946; People ex rel. Valenti v McCloskey, 6 NY2d 390; Matter of Finkel v McCook, 247 App Div 57, 271 NY 636; People v Renaghan, 40 AD2d 150, 33 NY2d 991; O’Connell v United States, 40 F2d 201; People v Martin, 47 AD2d 883, 42 NY2d 882; Matter of Grand Jury, County of Kings [Reardon], 278 App Div 206.) III. The hearing court properly denied defendant’s motion to suppress his Grand Jury testimony as the fruit of illegal electronic surveillance. (Gelbard v United States, 408 US 41; Nardone v United States, 127 F2d 521, 316 US 698; Wong Sun v United States, 371 US 471; Walder v United States, 347 US 62; United States v Calandra, 414 US 338; Lawn v United States, 355 US 339; People v Einhorn, 45 AD2d 75, 35 NY2d 948; People v Ianniello, 36 NY2d 137; United States v Morales, 566 F2d 402; Langella v Commissioner of Corrections, State of N. Y., 413 F Supp 1214, 545 F2d 818, 430 US 983.)

      Herald Price Fahringer, Paul J. Cambria and Barbara J. Davies for respondent in the first above-entitled case.
    I. The Grand Jury testimony derived from unlawfully conducted electronic surveillance was properly suppressed by the court below. Thus, the court’s order dismissing the indictment should be affirmed. (Matter of Democratic County Committee of Bronx County v Nadjari, 52 AD2d 70; Matter of Santangello

      v People, 49 AD2d 220, 38 NY2d 536; People v Langella, 82 Misc 2d 410; Gelbard v United States, 408 US 41; People v Ianniello, 36 NY2d 137; Wong Sun v United States, 371 US 471; Elkins v United States, 364 US 206; Silverthorne Lbr. Co. v United States, 251 US 385; People v Rodriguez, 11 NY2d 279; People v Gore, 22 AD2d 1011.) II. The holding of the court below of reversible error in the prosecution’s reading to the jury respondent’s entire Grand Jury testimony must be affirmed. (United States v Vaught, 485 F2d 320; United States v Tomaiolo, 249 F2d 683; People v Roland, 40 AD2d 1007; People v Stanard, 32 NY2d 143; United States v Turoff, 291 F2d 864; United States v Camporeale, 515 F2d 184; People v Perillo, 48 AD2d 862; People v Saperstein, 2 NY2d 210.) III. The indictment must be dismissed because respondent’s answers before the Grand Jury are not contemptuous as a matter of law. (Matter of Ruskin v Detkin, 32 NY2d 293; People ex rel. Valenti v McCloskey, 6 NY2d 390; People v Renaghan, 40 AD2d 150, 33 NY2d 991; People v Tilotta, 84 Misc 2d 170.)

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan and Laurence B. Jones of counsel), for appellant in the second above-entitled case.
    I. The Fourth Amendment exclusionary rule does not require suppression of the testimony of witnesses whose identity or possession of relevant information was learned as a result of an illegal wiretap. Moreover, the exclusionary rule should not prevent the use of the fruits of an illegal wiretap in an administrative proceeding where the act which forms the basis of the charges occurred after the illegality. (Berger v New York, 388 US 41; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, 396 US 840; United States v Giordano, 416 US 505; Alderman v United States, 394 US 165; Nardone v United States, 308 US 338; People v Townes, 41 NY2d 97; People v Puglisi, 51 AD2d 695; People v Munger, 37 AD2d 950, 33 NY2d 576; People v Dentine, 27 AD2d 139, 21 NY2d 700; Matter of Nigrone v Murtagh, 46 AD2d 343, 36 NY2d 421.) II. Petitioner waived his objection to the illegality of the evidence by his failure to object to the wiretap when he appeared before the Grand Jury. (People v Tantleff, 40 NY2d 862; People v Gentile, 39 NY2d 779; People v Breindel, 35 NY2d 928; People v De Salvo, 32 NY2d 12, 415 US 919.) III. The charges and specifications together with respondent’s "answer to request for specificity” sufficiently informed petitioner of the charges to enable him to prepare an adequate defense. (Matter of Hecht v Monaghan, 307 NY 461; Matter of Kolanda v Pembridge, 33 AD2d 818; People v Bogdanoff, 254 NY 16.)

      Robert A. Goldschlag and Jack S. HofSnger for respondent in the second above-entitled case.
    I. The evidence introduced by the department had been suppressed by the Supreme Court as the product of illegal eavesdropping and should have been excluded. (People ex rel. Finnegan v McBride, 226 NY 252; Rudman v Cowles Communications, 30 NY2d 1; Howard v Murray, 38 NY2d 695; People v Zabrocky, 26 NY2d 530; Matter of Emilio M., 37 NY2d 173; People v Paulin, 25 NY2d 445; People v Boone, 22 NY2d 476; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, 396 US 840; People v Mendez, 28 NY2d 94; People v Scharfstein, 52 Misc 2d 976.) II. The department’s refusal to advise Mancini of the precise testimony alleged to be false deprived him of a fair trial. (Matter of Hecht v Monaghan, 307 NY 461; Matter of Kramm v Board of Regents of State of N. Y., 51 Misc 2d 433; People v Fields, 20 AD2d 609; People v Bogdanoff, 254 NY 16.)
   OPINION OF THE COURT

Jasen, J.

Today, this court finds itself engaged in the not altogether foreign task of attempting to demarcate the seemingly inexhaustible reach of the exclusionary rule. More specifically, in the first of two cases, People v McGrath, the question presented is whether in a criminal contempt proceeding the Fourth Amendment requires suppression of a defendant’s testimony before the Grand Jury as the fruit of an illegal wiretap. In the companion case, Matter of Mancini v Codd, the issue posed is whether, in a civil disciplinary proceeding in which a policeman is charged with perjury, the Fourth Amendment requires the suppression of his testimony before the Grand Jury, as well as the testimony of witnesses at the subsequent disciplinary hearing, as fruit of an illegal wiretap.

I

In determining whether, in a particular case, illegally obtained evidence and the fruits thereof must be suppressed, we are guided by the realization that the exclusionary rule functions as a judicially created tool for the effectuation of constitutionally guaranteed rights. (Stone v Powell, 428 US 465, 482; United States v Calandra, 414 US 338, 348; Matter of Finn's Liq. Shop v State Liq. Auth., 24 NY2d 647, 653, cert den 396 US 840.) Formulated as a pragmatic response to law enforcement procedures violative of individual liberties, the exclusionary rule has never enjoyed the stature of an end in itself, but, rather, has served solely as a means to an end: a remedial device operating essentially upon a principle of deterrence. At no time has the exclusionary rule been construed as a personal remedial right of a party aggrieved by conduct violative of a constitutional right. (United States v Calandra, 414 US, at p 347, supra.) Thus, we view the applicability of the exclusionary rule to the cases at bar as dependent upon a balancing of its probable deterrent effect against its detrimental impact upon the truth-finding process.

While the applicability of the exclusionary rule to administrative as well as criminal proceedings in New York can no longer be disputed (see Matter of Finn's Liq. Shop v State Liq. Auth., 24 NY2d 647, supra; Matter of McPherson v New York City Housing Auth., 47 AD2d 828; see, also, CPLR 4506), we note that the Supreme Court has acknowledged the inapplicability of the exclusionary rule to preclude the "use of illegally seized evidence in all proceedings or against all persons.” (United States v Calandra, 414 US, at p 348, supra.) Employing a balancing approach, the court has declined to apply the exclusionary rule in those areas where the ultimate effectuation of its remedial objectives is only tenuously demonstrable. For example, although a defendant’s incriminating statements elicited by the police in violation of Miranda v Arizona (384 US 436) cannot be used by the prosecution as evidence-in-chief, they may be used to impeach his credibility if he decides to take the stand and testify. Once a defendant voluntarily takes the stand, he has an obligation to testify truthfully. As Chief Justice Burger cogently stated: "The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” (Harris v New York, 401 US 222, 226.) In such a case, any deterrent effect which application of the exclusionary rule may work upon police conduct is furnished by the exclusion of the defendant’s incriminating statement from the prosecution’s evidence-in-chief. To hypothesize that exclusion of these statements for impeachment purposes provides an additional meaningful deterrent to proscribed police conduct assumes too much. (Id., at p 225; Oregon v Hass, 420 US 714; Walder v United States, 347 US 62; People v Rothschild, 35 NY2d 355; see, also, Stone v Powell, 428 US 465, supra [deterrent effect of exclusionary rule too insubstantial to permit consideration of search-and-seizure claim on petition for habeas corpus review of State conviction]; United States v Calandra, 414 US 338, supra [deterrent effect of exclusionary rule too insubstantial to apply to proceedings before the Grand Jury]; Alderman v United States, 394 US 165 [deterrent effect of exclusionary rule too insubstantial to afford standing to challenge search- and-seizure beyond those whose rights were violated by the search-and-seizure].)

In a similar vein, the court has recently refused to apply the exclusionary rule to preclude the use of evidence obtained illegally by a State Police officer in a Federal civil tax proceeding (United States v Janis, 428 US 433), reasoning that the exclusion of such evidence in both State and Federal criminal proceedings furnished a sufficient deterrent effect, rendering insubstantial any additional deterrent effect flowing from exclusion of the evidence in the Federal civil proceeding. (Id., at p 448.) With this background in mind, we proceed to an analysis of the merits of the instant appeals.

II

In People v McGrath, the defendant was called to testify before the New York County Grand Jury, which included within the scope of its investigation an alleged conspiracy between individuals by the names of Hugh Mulligan and Thomas Callahan to murder a witness in a Federal robbery prosecution against Callahan. After having been granted transactional immunity, the defendant inquired whether any questions to be asked of him would be based upon information obtained through electronic surveillance. When informed by the Assistant District Attorney that some of the questions asked might be based upon such information, the defendant declined to answer any questions until the legality of the electronic surveillance was determined by a Judge.

Upon appearing before the Presiding Justice, the defendant maintained that he was entitled to a full suppression hearing to determine the legality of the surveillance. While the court refused to conduct a full hearing, it did examine the eavesdropping orders, concluding that they were facially valid and directing the defendant to return to the Grand Jury and answer all proper questions.

Although the defendant complied with this order, he answered all questions "under protest”. On the basis of his testimony before the Grand Jury, the defendant was indicted and charged with two counts of criminal contempt in the first degree. (Penal Law, § 215.51.) The indictment alleged that the defendant’s answers were evasive, equivocal and patently false, such that they amounted to no answers at all.

Prior to trial, the second count of the indictment was dismissed for legal insufficiency in that the defendant’s answers supporting that count were not considered sufficiently evasive and equivocal to constitute criminal contempt. As to the first count, although the court, upon the defendant’s motion to suppress, held the eavesdropping orders legally defective, it nonetheless refused to suppress the defendant’s testimony given in response to questions based upon information derived through the wiretap, viewing the defendant’s testimony as an independent act calculated to obstruct the investigation of the murder conspiracy conducted by the Grand Jury, rather than as fruit of the illegal surveillance.

At the conclusion of the defendant’s trial, the jury returned a verdict finding him guilty of criminal contempt. The Appellate Division reversed and dismissed the indictment, however, concluding that the defendant’s Grand Jury testimony constituted fruit of the illegal wiretap and, therefore, should have been suppressed. The People now appeal to this court. There should be a reversal.

Ill

In Matter of Mancini v Codd, the police, during the course of a narcotics investigation, placed a wiretap upon the telephone of Sylvestro Nanfro, respondent Ugo Mancini’s cousin, through which they overheard conversations participated in by respondent indicating that the latter was involved in loansharking and bookmaking operations. Based upon the information obtained through the wiretap, the District Attorney subpoenaed respondent and a fellow policeman, Joseph Cembrale, to testify before the Bronx County Grand Jury.

Upon appearing before the Grand Jury, respondent was asked whether he knew Cembrale, to which he responded by inquiring whether he, Mancini, was the target of the police investigation. The District Attorney informed respondent that his role before the Grand Jury was one of a witness, rather than a target of the investigation. After further advising respondent of the availability of the privilege against self incrimination, respondent invoked that privilege and requested immunity — a request which the Grand Jury granted. Prior to resuming his questioning of respondent, the District Attorney warned respondent that, notwithstanding a grant of transactional immunity, a witness before the Grand Jury remained subject to prosecution for perjury and contempt. At this point, after indicating that he had no further questions, respondent proceeded to testify.

In April of 1971, the Grand Jury returned a nine-count indictment charging respondent and Cembrale with having committed perjury before the Grand Jury. Both officers were immediately suspended from the New York City Police Department. Thereafter, on June 17, 1971, formal departmental charges were filed against respondent, nine specifications of which mirrored the perjury indictment, the remaining three of which charged respondent with associating with known loan sharks and extortionists.

While Cembrale pleaded guilty to a misdemeanor in satisfaction of the indictment and was placed on probation, respondent pleaded not guilty and moved to suppress the recorded telephone conversations implicating him in loansharking and bookmaking operations. On November 19, 1974, the Supreme Court, Bronx County, granted respondent’s motion ordering "the suppression of the factual information which came to the knowledge of the People by reason of the eavesdropping”. The basis for the order of suppression was the failure of the wiretap warrant to indicate Sylvestro Nanfro’s name as the person whose conversations were to be intercepted and the failure of the District Attorney to make timely application to amend the warrant to include additional crimes overheard. Lacking this critical evidentiary material, the District Attorney subsequently discontinued the case against respondent.

In April of 1975, appellant Police Commissioner commenced the departmental disciplinary proceeding against respondent, at which point respondent moved to suppress his Grand Jury testimony as the fruit of an illegal wiretap. However, the trial commissioner reserved decision. At the hearing, the evidence introduced by the department consisted of respondent’s Grand Jury testimony and the testimony of three witnesses, Sylvestro Nanfro, Joseph Cembrale and Benedetto Carbonetto, all of which contradicted respondent’s testimony before the Grand Jury.

At the conclusion of the hearing, respondent renewed his motion to suppress his Grand Jury testimony, requesting additionally the exclusion of the remainder of the department’s evidence, including the testimony of the three witnesses, as fruit of an illegal wiretap. Although the trial commissioner granted respondent’s motion as to the three specifications charging respondent with associating with known loan sharks and extortionists, and dismissed those specifications, he ruled admissible, as to the remaining nine perjury specifications, respondent’s Grand Jury testimony and that of the three witnesses.

On the merits, the trial commissioner found respondent guilty of seven of the nine specifications and recommended that respondent be dismissed from the police department. Appellant commissioner adopted the trial commissioner’s recommendation and formally dismissed respondent from the department. Respondent then commenced the instant article 78 proceeding to annul appellant’s determination on the ground that all evidence introduced by the department at the disciplinary hearing constituted fruit of an illegal wiretap and, therefore, should have been excluded. Upon transfer from Special Term, the Appellate Division reversed, holding the challenged evidence inadmissible, and remanded for a new hearing, at which the introduction of evidence would be limited to that derived independently of the eavesdrop. The commissioner now appeals to this court. There should be a reversal.

IV

In both cases, McGrath and Mancini, respondents on these appeals, maintain initially that the use of information obtained through the illegal wiretaps to elicit testimony before the Grand Jury was absolutely precluded by CPLR 4506 (subd [1]), which provides: "The contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury, or before any legislative committee, department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof; provided, however, that such communication, conversation, discussion or evidence, shall be admissible in any civil or criminal trial, hearing or proceeding against a person who has, or is alleged to have, committed such crime of eavesdropping.” We do not agree. The New York eavesdropping statute was intended to conform "State standards for court authorized eavesdropping warrants with federal standards.” (Governor’s Memorandum, L 1969, ch 1147, NY Legis Ann, 1969, p 586; People v Mulligan, 40 AD2d 165, 166.)

The pertinent Federal statute, title III of the Omnibus Crime Control and Safe Streets Act of 1968 (US Code, tit 18, §2510 et seq.), contains the identical exclusionary language (US Code, tit 18, § 2515). Nonetheless, the Federal courts have read section 2515 in conjunction with section 2518 (subd [10], par [a]), which defines the class of persons entitled to make a motion to suppress such evidence. Although section 2515, like CPLR 4506 (subd 1), makes reference to the Grand Jury, section 2518 (subd [10], par [a]), like its New York analogue, CPLR 4506 (subd 2), does not include a person called before the Grand Jury within the definition of an aggrieved person entitled to make a motion to suppress evidence obtained through illegal electronic surveillance. In fact, the Senate Report on this legislation states: "This provision [§ 2518, subd (10), par (a)] must be read in connection with section 2515 and 2517, discussed above, which it limits. It provides the remedy for the right created by section 2515. Because no person is a party as such to a grand jury proceeding, the provision does not envision the making of a motion to suppress in the context of such a proceeding itself. Normally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforcible by an individual. [United States v Blue, 384 US 251.] There is no intent to change this general rule. It is the intent of the provision only that when a motion to suppress is granted in another context, its scope may include use in a future grand jury proceeding.” (Senate Report No. 1097, 90th Cong, 2d Sess, US Code Cong & Admin News, 1968, pp 2112, 2195.) Based upon this legislative history, Federal courts have held that in a proceeding before the Grand Jury a witness is entitled to a suppression hearing only where there is an absence of a court order permitting the eavesdropping or the Government concedes the illegality of the surveillance or where there has been a prior judicial adjudication of illegality. (Matter of Persico, 491 F2d 1156, 1162, cert den 419 US 924; United States v Morales, 566 F2d 402, 407, supra; Matter of Millow, 529 F2d 770, 773; Matter of Grand Jury Proceedings [United States v Worobyzt], 522 F2d 196, 198, cert den 425 US 911; Droback v United States, 509 F2d 625, cert den 421 US 964.) Thus, inasmuch as New York’s eavesdropping statute was intended to conform State standards with Federal standards (see People v Mulligan, 40 AD2d 165, supra), we believe that the information obtained through the wiretaps in McGrath and Mancini, as well as the fruits of that surveillance — i.e., the testimony of respondents — was admissible before the respective Grand Juries.

Having determined that this evidence was admissible at these proceedings, we believe that its admission in the subsequent criminal contempt proceeding in McGrath and the civil disciplinary proceeding in Mancini, rests upon the application of attenuation principles. The Federal eavesdropping statute (US Code, tit 18, § 2510 et seq.), upon which CPLR 4506 is modeled, was neither intended to expand the existing role of suppression in search-and-seizure law, nor to modify the principle of attenuation. (Code Cong & Admin News, 1968, pp 2112, 2185; United States v Giordano, 416 US 505, 528, n 17.) Consequently, respondents’ argument that CPLR 4506 absolutely precludes the use of this evidence irrespective of attenuation must fail.

The question whether an intervening event may be of sufficient magnitude to break or attenuate the causal relationship between unlawful police conduct and the acquisition of evidentiary proof so as to dissipate the taint (see Wong Sun v United States, 371 US 471; Nardone v United States, 308 US 338; People v Mendez, 28 NY2d 94, cert den 404 US 911) is not resolvable by precise mathematical calculation. (United States v Ceccolini, 435 US 268, 273-274; see, e.g., Brown v Illinois, 422 US 590; People v Townes, 41 NY2d 97; People v Munger, 37 AD2d 950, app dsmd 33 NY2d 576.) The factors to be considered in making such a determination have recently been explored by the Supreme Court in a case not unlike Mancini.

In United States v Ceccolini (supra), a police officer, on assignment as a school crossing guard, entered the defendant’s flower shop on his break to converse with a friend, an employee of the shop. While engaged in conversation, the officer noticed an envelope from which money protruded lying on the cash register drawer. Upon examining the envelope, the officer discovered that it contained policy slips as well as money. Without informing the employee of the contents of the envelope, the police officer inquired as to its owner, to which inquiry the employee responded that it belonged to the defendant, who had instructed her to give it to a third party. Ultimately, the defendant was indicted for perjury before a Federal Grand Jury. However, the trial court held the testimony of the employee of the flower shop, who had subsequently been contacted by, and had provided information to, the Federal Bureau of Investigation concerning the incident, inadmissible as fruit of the illegal search of the flower shop conducted by the police officer during his conversation with the employee.

In reversing and holding this testimony admissible, the Supreme Court, although rejecting a per se rule that testimony of a live witness is not subject to the exclusionary rule irrespective of its proximity to unlawful police conduct, concluded that the causal connection between the illegal search and the witness’ testimony was sufficiently attenuated to permit introduction of the challenged testimony. (435 US, at pp 279-280.) The factors considered important by the court in reaching this conclusion were essentially threefold: the degree of free will exercised by the witness in testifying; the "length of the road” between the illegal search and the authority’s initial contact with the witness and between that contact and the witness’ trial testimony; and, a consideration of the purpose of the exclusionary rule as weighed against the impact upon the truth-finding process resulting from its application.

In both McGrath and Mancini, we believe that respondents’ actions in testifying as they did before the Grand Jury after having been granted immunity constituted acts sufficiently independent of the illegal wiretap so as to dissipate any taint flowing from the proscribed police conduct. (United States v Raftery, 534 F2d 854, 857, cert den 429 US 862; United States v Turk, 526 F2d 654, 667, cert den 429 US 823.) The protections afforded by constitutionally guaranteed rights may not be cavalierly converted into a license to commit perjury or contempt by evasive answer. People v Ianniello, 21 NY2d 418, 423, cert den 393 US 827; cf. United States v Wong, 431 US 174; United States v Mandujano, 425 US 564; United States v Knox, 396 US 77; United States v Bryson, 396 US 64.) Having been granted immunity, respondents had no cause to testify as they did before the Grand Jury. Although respondents’ appearances before the Grand Jury must be viewed as causally related to the illegal wiretaps, their voluntary and deliberate acts in choosing to testify falsely and evasively before that body furnished vitally independent links in the chains of causation.

In so holding, we reject respondent McGrath’s contention that the illegality of the wiretap in his case constitutes a defense to a criminal contempt proceeding. True, a witness before the Grand Jury may refuse to answer questions derived from information obtained through an illegal wiretap. Where a witness refuses to answer any questions before the Grand Jury upon this ground, the contempt power may not "be used to compel such testimony or punish the witness for his silence.” People v Einhorn, 35 NY2d 948, 949, supra.) If sustained, the illegality of the wiretap constitutes a defense to prosecution for criminal contempt. (Id.) This defense is available to a witness, however, only where he remains silent refusing to testify before the Grand Jury. It is not available to a witness who although choosing to testify does so in an evasive, equivocal or patently false manner. In this regard, contempt by evasive answer, as distinguished from a flat refusal to answer, is conceptually indistinguishable from perjury; no witness has a license to testify evasively or falsely before the Grand Jury. People v Ianniello, 21 NY2d 418, 423, supra.) In such a case, a witness may not seek to avoid prosecution for criminal contempt by raising the defense of an illegal wiretap. By his own voluntary and independent action before the Grand Jury, an evasively contumacious witness dissipates any taint flowing from proscribed police conduct.

There remains, however, a vital distinction between contempt by evasive answer and perjury for the purposes of attenuation. While both evasively contumacious and perjured testimony before the Grand Jury dissipate any taint flowing from an illegal wiretap for the purpose of permitting the introduction of such testimony in subsequent criminal or civil proceedings, there remains in the case of perjury the necessity for the introduction of testimony by other witnesses proving the perjured nature of, as in the case of respondent Mancini, a witness’ Grand Jury testimony. With respect to whether there exists sufficient attenuation of the illegal wiretap to permit the introduction in Mancini of the live testimony of witnesses Nanfro, Cembrale and Carbonetto at respondent’s disciplinary proceeding, we direct our attention once again to the attenuation factors considered by the Supreme Court in United States v Ceccolini (435 US 268, supra).

In regard to the degree of free will exercised by the live witnesses in testifying, we recognize that the analogy in Mancini to Ceccolini is less than compelling. In Ceccolini, the court commented that the employee’s testimony was neither coerced nor induced by official authority, demonstrating a greater likelihood that he or she might have been discovered by legal means. (Id., at p 276; see, also, People v Mendez, 28 NY2d 94, 101, supra.) In contrast, the degree of free will exercised, at least by witnesses Nanfro and Cembrale, who were indicted for loansharking and perjury, respectively, and who both pleaded guilty to those charges, is far less evident. In fact, Nanfro was on parole at the time he testified and Cembrale, who. was placed on probation, was reinstated to the police department on condition that he testify against respondent. Certainly, at least with respect to these witnesses, a claim that they testified as a result of inducement by the authorities cannot be disregarded. In fact, in assessing the likelihood of their discovery by the authorities through legal means apart from the illegal wiretap, one must characterize that contingency as remote.

Turning to the second factor, the "length of the road” between the illegal wiretap and the authority’s initial contact with the witness and between that contact and the witness’ live testimony, we find that the scale tips in favor of admissibility. As in Ceccolini, substantial time periods elapsed between these critical dates: the illegal wiretap was placed upon Nanfro’s telephone in August of 1970; respondent was not indicted for perjury until April of 1971 (the earliest date upon which the authorities could have contacted these witnesses to testify as to respondent’s perjury); and, finally, the witnesses did not testify against respondent at the disciplinary hearing until April of 1975. Under these facts, the road emanating from the wiretap, although perhaps not winding, was certainly a lengthy one.

The last, and in our view perhaps most important factor to be addressed, is whether, accepting the obvious detrimental impact upon the truth-finding process which the exclusionary rule often produces, its accompanying deterrent effect is sufficiently probable to justify its application. In this regard, we have noted earlier the increasing emphasis on the deterrent effect of the exclusionary rule as the single-most, if not sole, justification for its application. (See Stone v Powell, 428 US 465, supra; United States v Janis, 428 US 433, supra; United States v Calandra, 414 US 338, supra; Harris v New York, 401 US 222, supra) Concededly, this case does not fall within the holding of United States v Janis (supra), in that, although, like Janis, a civil proceeding is involved, the unlawful police conduct challenged in this case was committed not by officers of a different sovereign, but by officers of the same sovereign in which the civil proceeding was commenced. Nonetheless, we view the Supreme Court’s rationale in Janis permitting the introduction of the challenged evidence equally applicable to the instant case.

Our analysis centers upon a presumed spectrum of deterrence emanating from judicial application of the exclusionary rule. Naturally, the deterrent impact of the exclusionary rule is presumably most effective where evidence obtained by unlawful police conduct is suppressed in a criminal prosecution of a charge substantively related to the acquired evidence. Beyond this, any further increment of deterrent effect must, of logical necessity, decrease. The probable deterrent effect resulting from suppression of illegally obtained evidence in a collateral criminal proceeding such as a prosecution for perjury or contempt by evasive answer, is all the more insubstantial when the evidence is suppressed in a civil proceeding, the gravamen of which is, as in the case of perjury, collateral to the original purpose for obtaining the challenged evidence.

We emphasize that Mancini is not a case such as Matter of Finn’s Liq. Shop v State Liq. Auth. (24 NY2d 647, supra), in which the evidence suppressed at the administrative proceeding to suspend Finn’s liquor license consisted of proof of the underlying violation with which Finn was charged. Nor, as in Finn, was the evidence in this case seized by the agents of, or for the purposes of, the agency conducting the administrative proceeding. On the contrary, the wiretap was placed by the police in good faith upon the telephone of respondent’s cousin, Nanfro, whom they suspected of participation in a narcotics operation. In our view, the deterrent purpose of the exclusionary rule would be little advanced by the insubstantial, if existent at all, probability that the police — if not already deterred by suppression of their acquired evidence in a criminal prosecution charging the crime underlying their investigative efforts — would be deterred from engaging in proscribed conduct by suppression of that evidence in an unrelated civil proceeding.

Thus, we conclude that, on balance, the "length of the road” between the illegal wiretap and the testimony of witnesses Nanfro, Cembrale and Carbonetto, but especially because of respondent’s intervening willful act of perjury, together with the insubstantial benefit to be gained at the expense of the truth-finding process by application of the exclusionary rule militates against suppression of their live testimony.

Having concluded that the testimony of respondents McGrath and Mancini, as well as the live testimony of witnesses Nanfro, Cembrale and Carbonetto, was admissible in the respective proceedings, we address a final contention raised by respondent McGrath: that is, whether the trial court erred in permitting the prosecution, over counsel’s objection, to read to the jury the entire 197 pages of respondent’s Grand Jury testimony, replete with references to underworld crime figures, when the testimony relevant to the contempt charge covered only 10 pages. We agree with respondent that the introduction of his entire Grand Jury testimony was error. While a trial court may in its discretion permit the introduction of background information to enable a jury to comprehend the subject matter of a defendant’s perjury (People v Doody, 172 NY 165), it must strike a proper balance between the benefit gained by the introduction of such evidence as against the highly prejudicial impact which its introduction may work upon the jury. (See People v Standard, 32 NY2d 143.) In the instant case, the benefit alleged by the prosecution as justification for the introduction of respondent’s entire Grand Jury testimony — a demonstration of respondent’s otherwise precise memory — was clearly outweighed by the highly prejudicial impact of this testimony. For this reason, although we have considered and rejected the remainder of respondent McGrath’s contentions, including the contention that his answers were not contumacious, as a matter of law, we believe a new trial is mandated.

Accordingly, the order of the Appellate Division in People v McGrath should be reversed and the case remitted for a new trial. In Matter of Mancini v Codd, the order of the Appellate Division should be reversed and the determination of the Police Commissioner of New York City reinstated.

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

In People v McGrath: Order reversed and the case remitted to Supreme Court, New York County, for a new trial.

In Matter of Mancini v Codd: Order reversed, with costs, and the determination of the commissioner reinstated.

       [4] The People maintain that the defendant, having unsuccessfully challenged the legality of the electronic surveillance before the Grand Jury, may not now again in this criminal contempt proceeding seek to suppress evidence derived through the wiretap. While it would appear that some Federal courts have adopted this rule (see, e.g., United States v Morales, 566 F2d 402, 408), we believe the better rule is to permit a defendant in a criminal contempt proceeding to seek suppression of evidence derived through a wiretap if he has raised this objection before the Grand Jury and, at that time, had sought instruction from the court. (See People v Einhorn, 35 NY2d 948, 949-950.)


author: Cooke, J.

text:
    Rochelle M. Hechter, Respondent, v New York Life Insurance Company et al., Defendants, and Chemical Bank, New York, Appellant.
    Argued October 18, 1978;
    decided December 6, 1978

      POINTS OF COUNSEL

      Jeffrey Silberfeld and Philip H. Weinberg for appellant.
    Plaintiff’s action against Chemical sounds in conversion and is barred by the three-year Statute of Limitations for conversion, CPLR 214. (Henderson v Lincoln Rochester Trust Co., 303 NY 27; Hillsley v State Bank of Albany, 24 AD2d 28, 18 NY2d 952; Spaulding v First Nat. Bank, 210 App Div 216, 239 NY 586; Hutzler v Hertz Corp., 39 NY2d 209.)

      Grant S. Lewis for respondent. I.
    The Statute of Limitations has not run. (Henderson v Lincoln Rochester Trust Co., 303 NY 27; Schreibman v Chase Manhattan Bank, 15 AD2d 769; Forman v First Nat. Bank of Woodbridge, 66 Misc 2d 433; Ahrens v Westchester Fed. Sav. & Loan Assn., 58 AD2d 799; Hutzler v Hertz Corp., 39 NY2d 209.) II. Under the facts of this case, the Henderson rule is especially applicable.
   OPINION OF THE COURT

Cooke, J.

The concern on this appeal is whether an action by the payee of a check against a collecting bank for wrongfully collecting the instrument over a forged indorsement is timely if brought within six years of accrual.

Plaintiff Rochelle Hechter was named as payee on three checks issued in April, 1970. Two of these negotiable instruments were drawn by New York Life Insurance on Morgan Guaranty Trust Company, while the third, issued by United Benefit Life Insurance, had as its drawee the Omaha National Bank. In the aggregate, the checks represented more than $135,000 in life insurance proceeds payable to Mrs. Hechter on the death of her husband. It is alleged that one Emanuel Pavsner, who at the time served as plaintiff’s attorney, was authorized to deposit the checks in a bank account bearing her name. Instead of doing so, Pavsner forged Mrs. Hechter’s indorsement on the instruments and deposited them in his personal account maintained at defendant Chemical Bank. Chemical initiated collection of the checks, which were subsequently honored by the respective drawee banks. Needless to say, Pavsner withdrew all the funds from his account, apparently misappropriating the portion belonging to Mrs. Hechter. A 1974 action against the attorney terminated in a default judgment which remains wholly unsatisfied.

Contending that defendant Chemical Bank wrongfully collected the checks over forged indorsements, plaintiff commenced the present lawsuit on December 1, 1975, more than five years after the instruments were deposited. Following joinder of issue, Chemical moved for summary judgment on the ground, inter alia, that the action was time-barred. Special Term denied the motion, deferring decision on the Statute of Limitations issue until presentation of the facts at trial. A unanimous Appellate Division affirmed, without opinion, later granted leave to appeal to this court, and certified for our review the question: "Was the order of the Supreme Court, as affirmed by this Court, properly made?” We now affirm, and hold that defendant’s Statute of Limitations defense is without merit.

Prior to enactment of the Uniform Commercial Code, it was the settled law of this State that the payee of a negotiable instrument possessed a valid cause of action against a bank which had collected the instrument over the payee’s forged indorsement (e.g., Moch Co. v Security Bank of N. Y., 176 App Div 842, affd 225 NY 723; see, also, White, Some Petty Complaints About Article Three, 65 Mich L Rev 1315, 1333, n 58). Not atypically, such an action could be styled in either conversion or contract (see, e.g., Hillsley v State Bank of Albany, 18 NY2d 952, affg 24 AD2d 28; Henderson v Lincoln Rochester Trust Co., 303 NY 27; see, also, Kessler, Forged Indorsements, 47 Yale LJ 863, 874-875). Of course, the underlying actionable conduct was more akin to conversion than, breach of contract, but the law would allow the plaintiff to disregard the tort and sue in assumpsit (see, e.g., United States Portland Cement Co. v United States Nat. Bank, 61 Col 334; Kessler, Forged Indorsements, 47 Yale LJ 863, 874). That this contract action had as its theoretical basis the well-known common-law action for money had and received is made clear by Henderson v Lincoln Rochester Trust Co. (supra, at p 32, quoting National Union Bank v Miller Rubber Co., 148 Md 449, 455-456): " 'Where, however, a collecting bank cashes a check on a forged endorsement a different principle applies. There the collecting bank on the forged endorsement acquires no title whatever to the paper because the endorsement, its only source of title, is a nullity. It therefore is wrongfully in possession of the check and in equity and good conscience holds it for the payee. If, while in possession of it, it by means of the forged endorsement collects it, then it holds the proceeds of the collection in the same way for the payee, and that relationship creates a privity between it and the payee. And if the payee elects to ratify the collection of the check by the collecting bank he may recover from it the amount collected.’ ” As is true in any instance where the plaintiff elects to waive the tort and pursue his action on a contract theory (see Dentists’ Supply Co. of N. Y. v Cornelius, 306 NY 624, affg 281 App Div 306), a payee suing a collecting bank in contract was entitled to the benefit of the six-year Statute of Limitations (see, e.g., Henderson v Lincoln Rochester Trust Co., 303 NY 27, 32, supra; Moch Co. v Security Bank of N. Y., 176 App Div 842, affd 225 NY 723, supra).

With the advent of the Uniform Commercial Code, doubt was cast upon the continued viability of any cause of action against a collecting bank which had dealt with an instrument in accordance with "reasonable commercial standards” (Uniform Commercial Code, § 3-419, subd [3]; see Hutzler v Hertz Corp., 39 NY2d 209, 217, n 3). We need not address the question of when a collecting bank is liable for paying out or collecting over a forged indorsement, however, as defendant has consciously chosen at this juncture to rely solely upon a Statute of Limitations defense. Nonetheless, the provisions of the Uniform Commercial Code are relevant to our present inquiry, since defendant premises its argument upon a change of law allegedly worked by that statute. Reduced to its essence, defendant’s contention is that section 3-419 (subd [1], par [c]) of the Uniform Commercial Code abolishes the precode contract action against a collecting bank, restricting the payee’s remedy to a suit in conversion with its attendant three-year limitation period (CPLR 214).

To adopt this position would be to evince a fundamental misapprehension concerning the nature of the pre-code contract cause of action. That action is but a specific application of the common-law maxim that a litigant may abandon his tort cause of action in favor of one grounded in contract (see, generally, Terry v Munger, 121 NY 161). Nothing in the express language of section 3-419 of the Uniform Commercial Code can be read to sweep aside this historic principle. Indeed, the section adopts the common-law view which holds payment or collection over a forged indorsement to be a classical instance of conversion (see Uniform Commercial Code, § 3-419, Official Comment 3). Left undisturbed is the plaintiffs right to elect a contract rather than tort remedy, and concomitantly, to shroud his claim in the longer six-year Statute of Limitations. Contrary to defendant’s assertion, our decision in Hutzler v Hertz Corp. (39 NY2d 209, supra) does not suggest otherwise. There, we merely noted, by way of dictum, the uncertainty surrounding a collecting bank’s continued liability under the code (see Hutzler v Hertz Corp., supra, at p 217, n 3). We did not in any way imply that such liability, if it continues to exist, may be asserted only in a conversion action.

We also decline, as we must, defendant’s invitation to infer a legislative intent to abolish the contract cause of action. Standing as a barrier to any such abrogation by implication is section 1-103 of the Uniform Commercial Code which advises us that "[u]nless displaced by the particular provisions of this Act, the principles of law and equity * * * shall supplement its provisions” (emphasis supplied). Under the plain import of this section, nothing short of an express code provision limiting plaintiffs remedy to a conversion suit would suffice to destroy the action ex contractu. Apart from the code, moreover, it is a general rule of statutory construction that a clear and specific legislative intent is required to override the common law (see, e.g., Matter of Sullivan Co., 289 NY 110, 115; Jones v City of Albany, 151 NY 223, 228). We find no unambiguous intent to abolish the precode law in this case. To the contrary, section 3-419 reveals an expectation on the part of the code’s draftsmen which is at odds with defendant’s position. Subdivision (3) of section 3-419 states that, when certain conditions are satisfied, a depositary or collecting bank "is not liable in conversion or otherwise” to the true owner of an instrument (emphasis supplied). The "or otherwise” language, rather than indicating an intent to eliminate common-law theories of recovery, suggests that all precode actions regardless of form are to continue, subject to whatever limitations are prescribed by section 3-419 (see, e.g., Note, Depositary Bank Liability Under Section 3-419 (3) of the Uniform Commercial Code, 31 Wash & Lee L Rev 676, 685, n 52). In any event, it is clear that the Legislature has not spoken in the unmuted strains necessary to displace the common law.

In sum, under today’s decision, a cause of action against a bank for collecting an instrument over a forged indorsement is not time-barred if it is styled in contract and commenced within six years of accrual (CPLR 213).

Accordingly, the order appealed from should be affirmed, with costs, and the question certified answered in the affirmative.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Wachtler concur; Judge Fuchsberg taking no part.

Order affirmed, etc.

      . Under section 4-105 of the Uniform Commercial Code a collecting bank is "any bank handling the item for collection except the payor bank”. Thus, there is no doubt in the instant case as to Chemical’s status as a collecting bank.

      . Chemical also urged that the instruments were not forged, inasmuch as Mrs. Hechter had authorized Pavsner to inscribe her signature. On appeal, Chemical does not attack Special Term’s finding that genuine factual issues exist with respect to this issue.

      . While we express no opinion on the question, we note that a number of courts have already held depositary or collecting banks liable in situations analogous to the instant one (see, e.g., Cooper v Union Bank, 9 Cal 3d 371; see, generally, White and Summers, Uniform Commercial Code, § 15-4, pp 499-509; Comment, Payee v. Depositary Bank: What is the UCC Defense to Handling Checks Bearing Forged Indorsements?, 45 U Col L Rev 281, 289-304), despite the immunization language in subdivision (3) of section 3-419. Since defendant has not raised this issue, we decline to reach it at this time.

      . Section 3-419 provides in pertinent part:
      "(1) An instrument is converted when
      * * *
      "(c) it is paid on a forged indorsement.”