text:
    Thomas P. Hoke, as Commissioner of Broome County Department of Social Services, Appellant, v Angela Ortiz et al., Respondents.
    Submitted December 20, 1993;
    decided January 11, 1994
   Motion to dismiss appeal or, in the alternative, to strike portions of appellant’s brief and appendix denied.

Judges Titone and Levine taking no part.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Shahsultan Jaffer, Appellant, v Carol E. Huff et al., Respondents. In the Matter of Shahsultan Jaffer, Appellant, v Walter M. Schackman et al., Respondents.
    Submitted December 13, 1993;
    decided January 13, 1994
   Motion for resettlement of prior orders of the Court of Appeals, etc., denied. [See, 82 NY2d 835.]

Judge Titone taking no part.


text:
    In the Matter of Patrick T. Mellor, Appellant, v Susan Shepard, as Commissioner of the New York City Department of Investigation, Respondent.
    Submitted November 22, 1993;
    decided January 13, 1994
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).

Judge Titone taking no part.


text:
    The People of the State of New York ex rel. George E. Monahan, Appellant, v Warden of the Nassau County Correctional Center, Respondent.
    Submitted November 8, 1993;
    decided January 13, 1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.

Judge Titone taking no part.


text:
    In the Matter of Thomas C. Re, as Ancillary Administrator of the Estate of Gisela Von Krieger, Deceased, Respondent, v Truck-A-Tune, Inc., et al., Appellants.
    Submitted November 15, 1993;
    decided January 13, 1994
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.

Judge Titone taking no part.


text:
    [631 NE2d 115, 609 NYS2d 173]
    Federal Insurance Company et al., Respondents, v Ryder Truck Rental, Inc., et al., Appellants-Respondents, and Aetna Casualty & Surety Company et al., Respondents-Appellants, and Superintendent of Insurance of the State of New York, as Liquidator of Midland Insurance Company, Respondent. (And a Third-Party Action.)
    Decided January 18, 1994

      APPEARANCES OF COUNSEL

      Barry, McTiernan & Moore, New York City (William E. Fay, III, of counsel), for appellants-respondents.

      Leahey & Johnson, P. C., New York City (Asher Marcus and Michael Conforti of counsel), for Aetna Casualty & Surety Company, respondent-appellant.

      Smith Mazure Director Wilkins Young Yagerman & Tarallo, P. C., New York City (Lewis I. Wolf of counsel), for George R. Nadramia and another, respondents-appellants.

      Acito & Klein, P. C., New York City (Elinore B. Klein of counsel), for Federal Insurance Company and another, respondents.

      Shayne, Dachs, Stanisci, Corker & Sauer, Mineóla (Norman H. Dachs of counsel), for the Superintendent of Insurance, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

In this action primarily among insurers to apportion liability for a $1.75 million settlement in a personal injury action, we agree with the Appellate Division that the $1 million business auto policy issued to Mirage Enterprises provides excess coverage. Regardless of the finding below that the driver of the truck was a "special employee” of Mirage, the court correctly concluded that the vehicle was not owned, rented or used by Mirage, and thus did not trigger primary coverage under the policy. The $1 million policy issued to Ryder Truck Rental and the $500,000 policy issued to Erie Transfer Company, each providing primary coverage, apply in full to the settlement. The Appellate Division properly remitted the case to the trial court for apportionment of the remaining $250,000 among the excess insurers.

We note, moreover, that while the Appellate Division properly applied Pennsylvania Gen. Ins. Co. v Austin Powder Co. (68 NY2d 465) to bar subrogation by insurers against their own insureds in this case, we do not pass upon the applicability of Pennsylvania Gen. to a declaratory judgment action solely for apportionment of liability among insurers.

Chief Judge Kaye and Judges Simons, Bellacosa, Levine and Ciparick concur in memorandum; Judges Titone and Smith taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, etc.


text:
    [631 NE2d 117, 609 NYS2d 175]
    Patricia Maynard, Respondent, v Bernice Greenberg, Individually and as Executrix of the Estate of Herbert Greenberg, Deceased, Appellant.
    Decided January 18, 1994

      APPEARANCES OF COUNSEL

      Lester Schwab Katz & Dwyer, New York City (Keith D. Silverstein of counsel), for appellant.

      M. Bruce Solomon, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs, by the Court sua sponte, upon the ground that the State Constitution (art VI, § 3 [b] [3], [4]) and the CPLR (CPLR 5601 [c]; 5602 [b] [1]) do not authorize a grant of leave to the defendant on a certified question in these circumstances.

In this action, the Appellate Division reversed a judgment of Supreme Court, rendered after a nonjury trial, dismissing the complaint. The Appellate Division awarded plaintiff judgment as to liability and remanded the case for a determination of damages. Thereafter, the Appellate Division granted defendant leave to appeal to this Court on a certified question.

Defendant argues that because the trial court never reached the issue of damages, the remand by the Appellate Division concerns an issue not previously addressed and, therefore, that a "new trial” within the meaning of CPLR 5601 (c) has not been granted. It is clear that the issue of damages was fully litigated at the first trial. Thus, the trial as to damages ordered by the Appellate Division, while limited in scope, constitutes a new trial under CPLR 5601 (c), and the State Constitution and the CPLR do not authorize a grant of leave on a certified question in these circumstances.

Defendant next argues that any stipulation for judgment absolute under CPLR 5601 (c) would be illusory here, that no appeal lies as of right, and that the Appellate Division thus has the power to grant leave under CPLR 5602 (b) (1) even though a new trial has been ordered. The limitation on the Appellate Division’s power to grant leave under CPLR 5602 (b) (1) is based simply on whether a new trial is ordered, not on whether a valid stipulation for judgment absolute can be filed.

Judge Titone taking no part.

Appeal dismissed, without costs, by the Court sua sponte, upon the ground that the State Constitution (art VI, § 3 [b] [3], [4]) and the CPLR (CPLR 5601 [c]; 5602 [b] [1]) do not authorize a grant of leave to defendant on a certified question in these circumstances, in a memorandum.


text:
    [632 NE2d 454, 610 NYS2d 144]
    CPC International, Inc., Appellant, v Jake’s Products, Inc., et al., Respondents.
    Decided January 18, 1994
    APPEARANCES OF COUNSEL

      Waesche, Sheinbaum & O’Regan, P. C., New York City (John R. Keough, III, and William R. Bennett of counsel), for appellant.

      Harvis Trien & Beck, P. C., New York City (Robert M. Trien of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed and certified question not answered, without costs, upon the ground that the issues presented have become moot, the chattel subject to the ex parte seizure order having been sold.

Concur: Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick. Taking no part: Judge Titone.


text:
    D.M.S., Inc., et al., Respondents, v Gilbert Samberg, Appellant, et al., Defendants.
    Submitted December 6, 1993;
    decided January 18, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order entered November 19, 1992, dismissed as untimely; motion, insofar as it seeks leave to appeal from the Appellate Division order entered November 16, 1993, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution. Cross motion for sanctions, etc., denied.

Judge Titone taking no part.


text:
    In the Matter of Michael F. Erdheim, a Disbarred Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted December 13, 1993;
    decided January 18, 1994
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).

Judge Titone taking no part.


text:
    In the Matter of Julius Hecht et al., Respondents, v Harvey Gertler et al., Appellants. (Proceeding No. 1.) In the Matter of Harvey Gertler et al., Appellants, v Julius Hecht et al., Respondents. (Proceeding No. 2.)
    Submitted November 29, 1993;
    decided January 18, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that pertains to Comparative Designs, Inc., dismissed upon the ground that the issues relating to the corporation have become moot; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.

Judge Titone taking no part.


text:
    Medical Society of the State of New York et al., Appellants, v Thomas Sobol, as Commissioner of the Department of Education of the State of New York, et al., Respondents.
    Submitted November 29, 1993;
    decided January 18, 1994
   Motion for reconsideration of this Court’s October 19, 1993 order of dismissal denied. [See, 82 NY2d 802.] Motion for leave to appeal denied, with $100 costs and necessary reproduction disbursements.

Judges Titone and Levine taking no part.


text:
    Mercantile & General Reinsurance Co., plc, Appellant, v Colonial Assurance Company et al., Defendants, and Spanno Corporation, Respondent.
    Submitted December 27, 1993;
    decided January 18, 1994
   Motion for reargument or to amend remittitur denied, with $100 costs and necessary reproduction disbursements. [See, 82 NY2d 248.]

Judge Titone taking no part.


text:
    In the Matter of Dennis Moorehead, Respondent, v Gina Moorehead, Appellant. (Proceeding No. 1.) In the Matter of Gina Moorehead, Appellant, v Dennis Moorehead, Respondent. (Proceeding No. 2.)
    Submitted January 10, 1994;
    decided January 18, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 M).

Judge Titone taking no part.


text:
    Gerard Papa, Respondent-Appellant, and James Rampersant, Jr., Respondent, v City of New York et al., Appellants-Respondents.
    Submitted November 15, 1993;
    decided January 18, 1994
   Motion by the City of New York et al. for leave to appeal denied. Motion by plaintiff Papa for leave to appeal dismissed upon the ground that, having stipulated to reduce the amount of damages to which he is entitled, he is not a party aggrieved (see, Dudley v Perkins, 235 NY 448, 457).

Judge Titone taking no part.


text:
    The People of the State of New York, Respondent, v Douglas Ames, Appellant.
    Submitted December 6, 1993;
    decided January 18, 1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division denying the motion for a writ of error coram nobis (CPLR 5601; CPL 450.90; see, People v Tramell, 77 NY2d 893). Motion for poor person relief dismissed as academic.

Judge Titone taking no part.


text:
    The People of the State of New York, Appellant, v Sidney Butler, Respondent.
    Submitted December 27, 1993;
    decided January 18, 1994
   Motion to dismiss appeal denied.

Judge Titone taking no part.


text:
    The People of the State of New York ex rel. Stephen R. Mahler, on Behalf of James Muro, Appellant, v Joseph Jablonsky, as Sheriff of the Nassau County Correction Center, Respondent.
    Submitted January 10, 1994;
    decided January 18, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from the order of an individual Justice of the Appellate Division (NY Const, art VI, § 3 [b]; CPLR 5601).

Judge Titone taking no part.


text:
    In the Matter of Thomas J. Scotto, as President of the Detectives’ Endowment Association, et al., Respondents, v David N. Dinkins, as Mayor of the City of New York, et al., Appellants.
    Submitted January 10, 1994;
    decided January 18, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from the nonfinal order of the Appellate Division herein absent a certified question (NY Const, art VI, § 3 [b] [4]).

Judge Titone taking no part.


text:
    Geronimo C. Williamson, Appellant, v Housing Preservation and Development of City of New York, Respondent.
    Submitted December 20, 1993;
    decided January 18, 1994
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Term of the Supreme Court (see, NY Const, art VI, § 3 [b]; CPLR 5602).

Judge Titone taking no part.


author: Hancock, Jr., J.

text:
    [628 NE2d 1308, 607 NYS2d 598]
    Cynthia J. Martin, Individually and as Executrix of the Estate of Eugene J. Martin, Deceased, Appellant, v Arthur Hacker et al., Defendants, and Chelsea Laboratories, Inc., et al., Respondents.
    Argued October 6, 1993;
    decided November 23, 1993

      POINTS OF COUNSEL

      DeLorenzo, Gordon, Pasquariello, Weiskopf & Harding, P. C., Schenectady (Nicholas E. Tishler of counsel), for appellant.
    I. The language of the package insert itself presents issues of fact concerning the adequacy of the warnings contained therein. (Glucksman v Halsey Drug Co., 160 AD2d 305; Eiser v Feldman, 123 AD2d 583; Wolfgruber v Upjohn Co., 72 AD2d 59; McFadden v Haritatos, 86 AD2d 761; Gravenhorst v Zimmerman, 236 NY 22; Rotuba Extruders v Ceppos, 46 NY2d 223; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395.) II. Analysis of issues concerning the adequacy vel non of prescription drug warnings should take into account a broad range of factors. (McFadden v Haritatos, 86 AD2d 761; Glucksman v Halsey Drug Co., 160 AD2d 305; Wolfgruber v Upjohn Co., 72 AD2d 59; Cooley v Carter-Wallace, Inc., 102 AD2d 642; McCabe v Easter, 128 AD2d 257; Wells v Garbutt, 132 NY 430; Werner v Upjohn Co., 628 F2d 848; McEvoy v City of New York, 266 App Div 445; Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55; Baker v St. Agnes Hosp., 70 AD2d 400.) III. The issues of causation raised by the independent knowledge possessed by the physicians in this case and what they imparted to their patient are questions of fact which do not support summary judgment. (Johnson v Johnson Chem. Co., 183 AD2d 64; Baker v St. Agnes Hosp., 72 AD2d 400; Sterling Drug v Cornish, 370 F2d 82.)

      Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, Albany (Margaret Comard Lynch of counsel), for Rugby Laboratories, Inc., respondent.
    I. The product warning was clearly adequate to impart the risk of depression and suicide as a matter of law. (Codling v Paglia, 32 NY2d 330; Wolfgruber v Upjohn Co., 72 AD2d 59, 52 NY2d 768; Glucksman v Halsey Drug Co., 160 AD2d 305; McFadden v Haritatos, 86 AD2d 761; Baker v St. Agnes Hosp., 72 AD2d 400; Fane v Zimmer, Inc., 927 F2d 124; Cooley v Carter-Wallace, Inc., 102 AD2d 642.) II. The court may determine the adequacy of the product warning as a matter of law. (Wolfgruber v Upjohn Co., 72 AD2d 59, 52 NY2d 768; Glucksman v Halsey Drug Co., 160 AD2d 305; Fane v Zimmer, Inc., 927 F2d 124; Mazur v Merck & Co., 964 F2d 1348; Plummer v Lederle Labs., 819 F2d 349; Pierluisi v Squibb & Sons, 440 F Supp 691; Stone v Smith, Kline & French Labs., 731 F2d 1575; Chambers v Searle & Co., 441 F Supp 377, 567 F2d 269; Dunkin v Syntex Labs., 443 F Supp 121; Cooley v Carter-Wallace, Inc., 102 AD2d 642.) III. Even if the warning is deemed inadequate, the inadequacy is not a proximate cause of plaintiffs injuries. (Wolfgruber v Upjohn Co., 72 AD2d 59, 52 NY2d 768; Eiser v Feldman, 123 AD2d 583; Glucksman v Halsey Drug Co., 160 AD2d 305; McFadden v Haritatos, 86 AD2d 761.) IV. Plaintiff has failed to come forward with sufficient admissible evidence to defeat defendant’s motion for summary judgment. (Eiser v Feldman, 123 AD2d 583; Kaplow v Katz, 120 AD2d 569.)

      Sullivan, Rehfuss, Cunningham & Brennan, Albany (Mary J. Mraz and Stephen J. Rehfuss of counsel), for Chelsea Laboratories, Inc., respondent.
    I. No triable issue of fact exists with regard to the adequacy of the warnings. (Baker v St. Agnes Hosp., 72 AD2d 400; Eiser v Feldman, 123 AD2d 583; Cooley v Carter-Wallace, Inc., 102 AD2d 642; Wolfgruber v Upjohn Co., 72 AD2d 59, 52 NY2d 768; Polley v Ciba-Geigy Corp., 658 F Supp 420.) II. Mere conclusory allegations are insufficient to defeat the motion for summary judgment. (Estece v Abad, 271 App Div 725; Bracie v Yeshiva Univ., 88 AD2d 823; First Natl. Bank v Cities Serv., 391 US 253; Morrison v Nissan Motor Co., 601 F2d 139; Zuckerman v City of New York, 49 NY2d 557; Rotuba Extruders v Ceppos, 46 NY2d 223; Alvarez v Prospect Hosp., 68 NY2d 320; Eiser v Feldman, 123 AD2d 583; Hasbrouck v City of Goversville, 63 NY2d 916.) III. The prescribing physician’s independent knowledge of the drug’s side effects breaks the chain of causation. (McDaniel v Williams, 23 AD2d 729; McFadden v Haritatos, 86 AD2d 761; Glucksman v Halsey Drug Co., 160 AD2d 305; Stanback v Parke, Davis & Co., 502 F Supp 772, 657 F2d 652; Basco v Sterling Drug, 416 F2d 417; Wolfgruber v Upjohn Co., 72 AD2d 59.)
   OPINION OF THE COURT

Hancock, Jr., J.

Plaintiffs decedent, Eugene Martin, became severely depressed after ingesting reserpine and hydrochlorothiazide (HCT), manufactured by defendant Chelsea Laboratories (Chelsea) and prescribed by defendant Dr. Hacker to treat his hypertension. The depression allegedly led to Martin’s suicide. The issue here is whether the warning regarding the adverse reaction of drug-induced depression resulting in suicide is adequate as a matter of law. For the reasons stated below, we hold that there are no triable issues of fact regarding the warning provided to physicians by the package inserts accompanying these prescription drugs and that the warning is legally sufficient. Accordingly, there should be an affirmance.

I

There is evidence in the moving papers and the depositions that in November 1981, Eugene Martin came under the care of defendant Arthur Hacker, a licensed physician, who treated Martin for hypertension by prescribing HCT. In May 1982, while continuing the HCT prescription, Hacker also prescribed reserpine for Martin to help reduce his high blood pressure. Dr. Hacker advised Martin of the following side effects of reserpine: potassium deficiency, lethargy and weakness, stuffy nose, depression, loss of libido, nausea, vomiting and diarrhea. He also advised Martin that reserpine could produce depression but usually would not do so in the small dosage that he was prescribing.

In August 1982, Martin was hospitalized for pneumonia and came under the care of defendant Dr. George Jolly who prescribed HCT for Martin. Dr. Jolly knew that Martin had been taking reserpine before being hospitalized but he took no action regarding this drug; he neither prescribed it nor gave any advice concerning its continuance or its side effects. Martin became severely depressed and on February 13, 1983 he shot himself.

Chelsea’s package insert for reserpine states in relevant part:

"actions: * * * Reserpine, like other rauwolfia compounds, is characterized by slow onset of action and sustained effects. Both cardiovascular and central nervous system effects may persist for a period of time following withdrawal of the drug. "indications: Mild essential hypertension; also useful as adjunctive therapy with other antihypertensive agents in the more severe forms of hypertension * * *
"contraindications: Known hypersensitivity, mental depression (especially with suicidal tendencies), active peptic ulcer, ulcerative colitis, and patients receiving electroconvulsive therapy.
"warnings: Extreme caution should be exercised in treating patients with a history of mental depression. Discontinue the drug at first sign of despondency, early morning insomnia, loss of appetite, impotence, or self-deprecation. Drug-induced depression may persist for several months after drug withdrawal and may be severe enough to result in suicide.
"adverse reactions: Rauwolfia preparations have caused gastrointestinal reactions including hyper-secretion, nausea, vomiting, anorexia, and diarrhea; cardiovascular reactions * * *; central nervous system reactions include drowsiness, depression, nervousness, paradoxical anxiety, nightmares, rare parkinsonian syndrome * * * Nasal congestion is a frequent occurrence * * * [several other reactions are reported]. These reactions are usually reversible and usually disappear after the drug is discontinued.”

The relevant sections of Chelsea’s package insert for HCT read:

"indications: * * * For Oral Forms Only: Hydrochlorothiazide is indicated in the management of hypertension either as the sole therapeutic agent or to enhance the effectiveness of other antihypertensive drugs in the more severe forms of hypertension.
"warnings: * * * Hydrochlorothiazide may add to or potentiate the action of other antihypertensive drugs.”

Plaintiff Cynthia Martin, decedent’s widow and executrix, commenced this action against several defendants. This appeal, however, concerns only Chelsea, the manufacturer of reserpine and HCT, and Rugby Laboratories (Rugby), Chelsea’s distributor of these drugs. Plaintiff alleged that as a result of Martin’s ingestion of reserpine and HCT he became despondent and committed suicide; no issue is raised as to this allegation. As to these defendants, plaintiff alleged a breach of their duties to adequately warn both the medical profession and the ultimate user of the medications’ adverse side effects. After serving their answers, Chelsea and Rugby moved for summary judgment, arguing that there was no triable issue of fact regarding the adequacy of the warnings in describing the adverse effects of these drugs.

Supreme Court granted Chelsea’s motion to the extent of dismissing plaintiffs 15th and 16th causes of action that alleged failure to warn the ultimate user. It denied the rest of Chelsea’s motion as well as Rugby’s entire motion. The Appellate Division modified, ruling that "Supreme Court incorrectly found that triable issues of fact were presented concerning the issue of whether the warnings provided by defendants regarding reserpine and HCT to the medical profession were adequate” (Martin v Hacker, 185 AD2d 553, 554) and concluding that "defendants are entitled to summary judgment” because "the warnings were adequate as a matter of law” (id., at 555). We granted leave to appeal and now affirm.

II

At issue is the nature and extent of a prescription drug manufacturer’s obligation to make known the potential hazards of its products. The claims against defendants Chelsea and Rugby are framed in terms of strict products liability. Although a prescription drug is by its nature an inherently unsafe product and would in the usual case impute strict liability to its manufacturer, a defense is provided against such liability when the drug is " 'properly prepared, and accompanied by proper directions and warning’ ” (Wolfgruber v Upjohn Co., 72 AD2d 59, 61, affd 52 NY2d 768 [quoting Restatement (Second) of Torts § 402 A, comment k]; see generally, Rheingold, Products Liability — The Ethical Drug Manufacturer’s Liability, 18 Rutgers L Rev 947 [1964]; 2 Frumer and Friedman, Products Liability § 12.14, at 12-147 to 12-149 [1993 revision & July 1993 Cum Supp]). Therefore, even though its side effects may cause injury, a prescribed drug, accompanied by adequate warnings, is " 'not defective, nor is it unreasonably dangerous’ ” (Wolfgruber, supra, at 61). The comment k defense is unavailable for products negligently manufactured, negligently distributed or unaccompanied by proper warnings (see generally, 6 Speiser, Krause and Cans, American Law of Torts § 18:383, at 1110 [1st ed & Mar. 1993 Cum Supp]). The manufacturer’s duty is to warn of all potential dangers in its prescription drugs that it knew, or, in the exercise of reasonable care, should have known to exist (see, Baker v St. Agnes Hosp., 70 AD2d 400, 404; Lindsay v Ortho Pharm. Corp., 637 F2d 87, 91 [2d Cir 1980]; see also, Davis v Wyeth Labs., 399 F2d 121, 130 [9th Cir 1968]).

Warnings for prescription drugs are intended for the physician, whose duty it is to balance the risks against the benefits of various drugs and treatments and to prescribe them and supervise their effects. The physician acts as an "informed intermediary” (see, Wolfgruber, supra, at 61; Lindsay, supra, at 91) between the manufacturer and the patient; and, thus, the manufacturer’s duty to caution against a drug’s side effects is fulfilled by giving adequate warning through the prescribing physician, not directly to the patient (see, Wolfgruber, supra, at 61; Glucksman v Halsey Drug Co., 160 AD2d 305, 307). The warning must provide sufficient information to that category of prescribing physicians who may be expected to have the least knowledge and experience with the drug (see, Lindsay, supra, at 91-92; see also, Guevara v Dorsey Labs., 845 F2d 364 [1st Cir 1988] [PR law]).

Manufacturers apprise physicians of dangerous side effects in various ways. The most common are: (1) the inclusion in the Physicians Desk Reference, the annually updated encyclopedia of medications, of a formal description of each of a manufacturer’s drugs; and (2) the manufacturer’s formal warning in the package insert of a prescription drug (see, e.g., Baker, supra, at 406-407; Glucksman, supra, at 307; see also, Lindsay, supra, at 92). Inserts must be written in accordance with the Food and Drug Administration’s recommendation for the proper labeling of prescription drugs (see, 21 CFR 201.56, 201.57; 21 USC § 355 [e]), which as of April 1, 1979 specified that the package insert shall list the following kinds of information in this sequence:

DESCRIPTION ACTIONS INDICATIONS CONTRAINDICATIONS WARNINGS PRECAUTIONS ADVERSE REACTIONS DOSAGE & ADMINISTRATION OVERDOSAGE (WHERE APPLICABLE) HOW SUPPLIED

The Contraindications section includes the most stringent caveats against use, i.e., a statement of the conditions under which the drug is not to be used (see, e.g., Baker, supra, at 402). Each succeeding section, especially from Contraindications to Adverse Reactions, sets forth information and admonitions pertaining to the drug’s use in a descending order of importance and seriousness of the attendant risks; thus, for example, the Warnings section deals with side effects of graver consequence than the Adverse Reactions section (see, McFadden v Haritatos, 86 AD2d 761, 762).

Ill

A warning for a prescription drug may be held adequate as a matter of law if it provides specific detailed information on the risks of the drug (Wolfgruber, supra, at 61-62; and see, Restatement [Second] of Torts § 402 A, comment k). Whether a given warning is legally adequate or presents a factual question for resolution by a jury requires a careful analysis of the warning’s language. The court must examine not only the meaning and informational content of the language but also its form and manner of expression. Always bearing in mind that the warning is to be read and understood by physicians, not laypersons, the factors to be considered in resolving this question include whether the warning is accurate, clear, consistent on its face, and whether it portrays with sufficient intensity the risk involved in taking the drug (see, Felix v Hoffmann-LaRoche, Inc., 540 So 2d 102, 105 [Fla 1989]; Up john Co. v MacMurdo, 562 So 2d 680, 682 [Fla 1990]; Williams v Ciba-Geigy Corp., 686 F Supp 573, 579 [WD La 1988]).

It is basic that a warning "must be commensurate with the risk involved in the ordinary use of the product” (Cooley v Carter-Wallace, Inc., 102 AD2d 642, 645). Thus, analysis logically starts with an ascertainment of the seriousness of the involved risk (see, 2 Products Liability, op. cit., § 12.03, at 12-30; 3 American Law of Products Liability 3d § 33:8, at 21-22 [Matthew J. Canavan ed, 1993 revision]; see also, Wolfgruber, supra, at 62-63; Baker, supra, at 407; Fane, supra, at 129; Jones, supra, at 706). Seriousness depends on the consequences of the side effects (see, 3 American Law of Products Liability 3d, op. cit., § 33:12, at 27; § 33:4, at 16; Williams, supra, at 578-579). Here, there is no question that the level of the risk is the highest, death from suicide. Accordingly, the adequacy of the package insert for reserpine must be evaluated as a warning of a risk of the most serious degree.

Once the general level of risk is established, the court should evaluate the insert’s language for its accuracy, clarity and relative consistency (see, Felix, supra, at 105; MacMurdo, supra, at 682; Williams, supra, at 579; see generally, 3 American Law of Products Liability 3d, op. cit., §§ 33:1 to 33:13, at 11-29). For a warning to be accurate it must be correct, fully descriptive and complete (see, Wolfgruber, supra, at 62), and it must convey updated information as to all of the drug’s known side effects (see, Baker, supra, at 406; see also, Cooley, supra, at 646; 2 Weinberger, Products Liability § 28.10, at 11). In this case, no issue is raised with respect to the correctness or completeness of the reserpine warning.

Clarity in the context of a drug warning means that the language of the warning is direct, unequivocal and sufficiently forceful to convey the risk (see, 3 American Law of Products Liability 3d, op. cit., §§ 33:10 to 33:12, at 24-28; see also, Cooley, supra, at 646; Sterling Drug v Yarrow, 408 F2d 978, 994 [8th Cir 1969]; see, e.g., Bloxom v Bloxom, 512 So 2d 839, 850 [La]). A warning that is otherwise clear may be obscured by inconsistencies or contradictory statements made in different sections of the package insert regarding the same side effect or from language in a later section that dilutes the intensity of a caveat made in an earlier section (see, McFadden, supra, at 763). Such contradictions will not create a question of fact as to the warning’s adequacy, if the language of a particular admonition against a side effect is precise, direct, and unequivocal and has sufficient force. The clarity of the over-all warning may in such instances offset inconsistencies elsewhere in an insert (see, e.g., Fane, supra, at 129; MacMurdo, supra, at 682).

Finally, a court should consider the warning as a whole (see, Jones, supra, at 708; Guevara, supra, at 366). While a meticulous examination and parsing of individual sentences in the insert may arguably reveal differing nuances in meaning or variations in emphasis as to the seriousness of a side effect, any resulting vagueness may be overcome if, when read as a whole, the warning conveys a meaning as to the consequences that is unmistakable.

IV

Plaintiff argues that the warning provided in the package insert here does not meet the standard for legal adequacy, primarily for three reasons: (1) there is ambiguity in the Warnings section as to the category of user at risk for suicide; (2) the Adverse Reactions section dilutes the caveat about suicide found in the Warnings section; and (3) there is an insufficient caveat against an increased risk of suicide when reserpine is used with HOT. Since it is undisputed that Martin had no history of mental depression, we are not concerned with the adequacy of the Contraindications section of the insert (see, McFadden, supra, at 762).

A

Plaintiff’s first contention is that the Warnings section contains an ambiguity as to whether it applies to all users or only to those with a history of mental depression. The Warnings section contains the following three declaratory sentences:

(1) "Extreme caution should be exercised in treating patients with a history of mental depression.”
(2) "Discontinue the drug at first sign of despondency, early morning insomnia, loss of appetite, impotence, or self-depreciation.”
(3) "Drug-induced depression may persist for several months after drug withdrawal and may be severe enough to result in suicide.”

Plaintiff asserts that the direction in the second sentence that the drug should be discontinued at "first sign of despondency * * * or self-deprecation” and the admonition in the third sentence that "[d]rug-induced depression may persist * * * after drug withdrawal and may be severe enough to result in suicide” apply not to users with drug-induced depression generally but only to the class of users described in the first sentence who have a history of mental depression. We disagree. The third sentence of this section — "[d]rug-induced depression may persist * * * and may be severe enough to result in suicide” — is direct, unqualified, and unequivocal. Its plain meaning is that drug-induced depression in any user— not just in patients with a history of mental depression — may persist, even after drug withdrawal, and be so severe as to cause suicide. It would defy common sense and subvert the clear intendment of the third sentence to read it as limited by the first sentence of this section. We decline to adopt the view of the McFadden Court that the Warnings section of the insert applied only to patients with a history of mental depression.

B

Relying on McFadden plaintiff next contends that the language in the Adverse Reactions section dilutes the caveat in the Warnings section regarding suicide due to drug-induced depression. Insofar as relevant, the Adverse Reactions section provides:

"Rauwolfia preparations have caused gastrointestinal reactions including hypersecretion, nausea vomiting, anorexia, and diarrhea; cardiovascular reactions * * *; central nervous system reactions include drowsiness, depression, nervousness paradoxical anxiety, nightmares, rare parkinsonian syndrome * * * Nasal congestion is a frequent occurrence * * * [several other systemic reactions including hematologic reactions, muscular aches, rash, dizziness and weight gain are reported].
These reactions are usually reversible and usually disappear after the drug is discontinued” (emphasis added).

Plaintiff’s argument is that the statement in the last sentence quoted above that the reactions are "usually reversible” and "usually disappear” becloud the meaning of the Warnings section and detract from the forcefulness and intensity of what would otherwise be an unmistakable admonition against depression-induced suicide in that section. Again we disagree.

The last sentence in the Adverse Reactions section, it should be noted, does not pertain to the nature or the seriousness of the reaction but to its usual duration. The information that a reaction is usually reversible and usually disappears — i.e., that it is not permanent — says nothing about the reaction’s dangerousness while it persists. Thus, the last sentence does not contradict the unequivocal and straightforward statement in the Warnings section that drug-induced depression "may be severe enough to result in suicide”. Nor does the knowledge that the depression reaction may be reversible and disappear affect the forcefulness and intensity of the admonition that this reaction, while in its active state, may result in suicide.

Moreover, assuming for the sake of argument only that the last sentence in the Adverse Reactions section could create some ambiguity as to the postwithdrawal persistence of the drug’s reactions, this is plainly counterbalanced by the following language in the Actions section of the insert:

"Reserpine like other rauwolfia compounds, is characterized by slow onset of action and sustained effects. Both cardiovascular and central nervous system effects may persist for a period of time following withdrawal of the drug” (emphasis added).

The consistent and clear statements in the Actions and Warnings sections of the insert concerning the postwithdrawal persistence of side effects after reserpine withdrawal negate the effect of whatever ambiguity could arguably result from the language in the Adverse Reactions section.

Finally, the Warnings section and the Adverse Reactions section, taken together with the Actions section, are sufficient to convey to any reasonably prudent physician an unambiguous and consistent message that reserpine is a slow-acting drug persisting in body tissue after withdrawal and that reserpine-induced depression may lead to postwithdrawal suicide but that such depression usually disappears after withdrawal. Thus, the warning of the insert as a whole comports exactly with the risk of taking reserpine (see, e.g., Jones, supra, at 708; Guevara, supra, at 366). Again, we disagree with the McFadden Court, which held that the dilution of the Warnings section created by the last sentence of the Adverse Reactions section raised a factual issue.

C

Plaintiffs final claim is that the reserpine insert does not warn with sufficient intensity of the fact that ingesting both HCT and reserpine to control hypertension may exacerbate the adverse side effects of reserpine. Plaintiff argues that the reserpine insert does not clearly identify the general level of risk of this drug when taken in conjunction with HCT. This claim is meritless.

The Dosage & Administration section states in part that "[cjoncomitant use of Reserpine with [other drugs] necessitates careful titration of dosage with each agent”. In other words, the physician is warned that prescribing reserpine with other drugs requires the physician’s care and attention because the dosage of reserpine as recommended in this section may have to be modified, depending on the concomitantly prescribed drug. Additionally, the HCT package insert supplies a forewarning that "Hydrochlorothiazide may add to or potentiate the action of other antihypertensive drugs”. Since the reserpine insert states that the action of reserpine would "persist for a period of time following withdrawal of the drug” and that drug-induced depression after withdrawal "may be severe enough to result in suicide”, when read together the reserpine and the HCT package inserts plainly and directly alert the physician to HCT’s action in heightening the side effects of reserpine (see, e.g., Ashman v SK & F Lab Co., 702 F Supp 1401, 1405).

In sum, Chelsea has established that the reserpine package insert contains language which, on its face, adequately warns against the precise risk in question, i.e., depression-caused suicide. Plaintiff has not come forward with any evidentiary facts or adverted to any portions of the package insert demonstrating that a factual issue exists as to the warning’s adequacy. Summary judgment dismissing the complaint against defendant Chelsea and defendant Rugby was, therefore, properly granted (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). Given this holding, we do not address defendants’ additional argument that summary judgment was warranted in view of plaintiffs failure to demonstrate the existence of factual issues pertaining to the causal connection between the allegedly defective warning and decedent’s depression-caused suicide (see, Lindsay, supra, at 91; Jones, supra, at 708).

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.

Order affirmed, with costs.

      . Where liability is predicated on a failure to warn, New York views negligence and strict liability claims as equivalent (see, Wolfgruber v Upjohn Co., 72 AD2d 59, 62, affd 52 NY2d 768, supra).

      . Commencing on June 26, 1979, the recommended format of labeling was amended at various times in certain respects that are not relevant here (see, 44 Fed Reg 37462 [actions changed to clinical pharmacology; and drug abuse heading added]).

      . Although, as plaintiff contends, some New York decisions have concluded that as to particular warnings the issue of adequacy presents a question of fact to be resolved by the jury (see, e.g., Bikowicz v Nedco Pharmacy, 130 AD2d 89; Baker, supra, at 408; McFadden, supra, at 763), other New York decisions, in addition to Wolfgruber, have resolved the issue of a warning’s adequacy as a matter of law (see, Glucksman, supra, at 308; Eiser v Feldman, 123 AD2d 583, 584; see also, Fane v Zimmer, Inc., 927 F2d 124 [2d Cir 1991] [New York law]; Jones v Lederle Labs., 695 F Supp 700 [ED NY 1988] [New York law]).
      Courts in other jurisdictions have also determined warnings to be adequate as a matter of law (see, e.g., Plummer v Lederle Labs., 819 F2d 349 [2d Cir 1987] [Cal law]; Guevara v Dorsey Labs., supra [PR law]; Ferrara v Berlex Labs., 732 F Supp 552 [ED Pa 1990]; Williams v Ciba-Geigy Corp., 686 F Supp 573 [WD La 1988]; Weinberger v Bristol-Myers Co., 652 F Supp 187 [D Md 1986]; Goodson v Searle Labs., 471 F Supp 546 [D Conn 1978]; Brick v Barnes-Hines Pharm. Co., 428 F Supp 496 [DC 1977]; Felix v Hoffmann-LaRoche, Inc., 540 So 2d 102 [Fla 1989]).

      . McFadden v Haritatos (86 AD2d 761, supra) also involved the adequacy of the warning provided by the reserpine package insert. The McFadden Court, unlike the Court below in this case, held that the Adverse Reactions section of the reserpine insert presented an issue of fact as to the sufficiency of the insert.

      . There is no showing that Martin had stopped taking reserpine prior to his death. Therefore, any claimed dilution of the statement concerning the drug’s postwithdrawal persistence could not have a direct causal relationship to his death, in any event.


author: Smith, J.

text:
    [628 NE2d 1316, 607 NYS2d 606]
    Lawrence C. Longway, Individually and as Supervisor of the Town of Pamelia, et al., Plaintiffs, v Jefferson County Board of Supervisors et al., Defendants.
    Argued November 18, 1993;
    decided December 16, 1993
    POINTS OF COUNSEL

      Rosen & Rosen, Monticello (William C. Rosen of counsel), for plaintiffs.
    I. Local legislative reapportionment requires that the population base be modified to exclude persons who are not residents or citizens of the jurisdiction. (Seaman v Fedou

      rich, 16 NY2d 94; Davis v Board of Supervisors, 28 AD2d 583; Greenwald v Board of Supervisors, 567 F Supp 200, 742 F2d 1434; Avery v Midland County, 390 US 474; Baker v Carr, 369 US 186; Hadley v Junior Coll. Dist, 397 US 50; Matter of Palla v Suffolk County Bd. of Elections, 31 NY2d 36; Bradley v Board of Supervisors, 70 Misc 2d 331; Abate v Mundt, 25 NY2d 309, 403 US 182; Matter of Wolpoff v Cuomo, 80 NY2d 70.) II. The Election Law provides a valid basis on which to determine includable persons. (Matter of Corr v Westchester County Dept. of Social Servs., 33 NY2d 111; Harper v Virginia Bd. of Elections, 383 US 663; Carrington v Rash, 380 US 89; Dona v Board of Supervisors, 48 Misc 2d 876; Matter of Altimari v Meisser, 23 AD2d 865, 16 NY2d 629.) III. Nonresidents do not have a right to be represented in a local legislative body. (Dona v Board of Supervisors, 48 Misc 2d 876.) IV. The three-quarters plan is unconstitutional on its face. (Baker v Carr, 369 US 186; Avery v Midland County, 390 US 474; Iannucci v Board of Supervisors, 20 NY2d 244; Franklin v Krause, 32 NY2d 234, 415 US 904; Town of Carmel v Board of Supervisors, 27 NY2d 975; Jones v Board of Supervisors, 46 AD2d 102; Brown v Thomson, 462 US 835; Hicks v Miranda, 422 US 332; Mandel v Bradley, 432 US 173; New York City Bd. of Estimate v Morris, 489 US 688.)

      Felt, Hubbard & Bogan, Utica (James R. Griffith of counsel), for defendants.
    I. There is no constitutional impediment to inclusion of short-term residents in an apportionment base. (Reynolds v Sims, 377 US 533; WMCA, Inc. v Lomenzo, 377 US 633; Roman v Sincock, 377 US 695; Avery v Midland County, 390 US 474; Seaman v Fedourich, 16 NY2d 94; Burns v Richardson, 384 US 73.) II. The legislative history of the Municipal Home Rule Law demonstrates that the Legislature intended to authorize use of total population as an apportionment base. (WMCA, Inc. v Lomenzo, 377 US 633; Town of Greenburgh v Board of Supervisors, 53 Misc 2d 88; Davis v Board of Supervisors, 28 AD2d 583; Reynolds v Sims, 377 US 533; Burns v Richardson, 384 US 73.) III. Rules of construction indicate that the Legislature intended that "residents” mean "total population,” "inhabitants,” or "whole number of persons,” not "domiciliaries”. (Burns v Richardson, 384 US 73.) IV. Precedents do not support appellants’ construction. (Greenwald v Board of Supervisors, 567 F Supp 200, 742 F2d 1434.) V. Sound policy reasons support the construction of the Municipal Home Rule Law giving municipalities the choice to use total population as a base. (New York City Bd. of Estimate v Morris, 489 US 688.) VI. The constitutionality of the weighted voting plan for three-quarters vote is not part of this appeal.
   OPINION OF THE COURT

Smith, J.

The issue in this case, upon a certified question to this Court from the United States Court of Appeals for the Second Circuit, is whether the term " 'population’ ”, defined by Municipal Home Rule Law § 10 (1) (ii) (a) (13) (c) as " 'residents, citizens, or registered voters’, * * * necessarily excludes transients, such as military personnel, incarcerated felons, and occupants of group homes.” (995 F2d 12, 14.) Because we hold that the Municipal Home Rule Law definition does not "necessarily exclude” the stated classes of persons, we answer the certified question in the negative.

Defendant Board of Supervisors of Jefferson County (the Board) is made up of supervisors elected in each of the County’s constituent towns and in each ward of the City of Watertown. In 1968, in response to decisions of the United States Supreme Court and this Court declaring that the equal protection of the laws required legislative bodies to be substantially equal in population (see, Reynolds v Sims, 377 US 533; Avery v Midland County, 390 US 474; Iannucci v Board of Supervisors, 20 NY2d 244), Jefferson County modified the structure of the Board to provide a weighted voting system of representation based upon the population of each town or ward. Thereafter, the County modified the composition of the Board to reflect the population of the County as reported in the censuses of 1970 and 1980. The apportionment base used on each occasion was total population, as set forth in the census pursuant to title 13 of the United States Code. This population included, among others, military personnel, inhabitants of group homes, and incarcerated felons.

After the results of the 1990 census became available, the Board proposed, by Local Law Intro No. 1 of 1992, an adjusted weighted voting plan, using the gross census figures for the population of the County as an apportionment base. The 1990 census figures, however, also included prisoners, group home residents, and military personnel and their dependents who, it is argued, are not residents because they are not domiciliaries —i.e., they have not explicitly expressed a desire to remain permanently. Plaintiffs refer to these classes of individuals as nonresidents for purposes of this action.

Plaintiffs, members of the Board and one Jefferson County resident who is not an elected official, by order to show cause, commenced this class action in the Federal District Court for the Northern District of New York, on behalf of themselves and several towns and wards located in Jefferson County. Plaintiffs asserted that as a result of changes in the population of Jefferson County, reflected in the 1990 Federal census, the voting composition of the Board violates the equal protection and due process rights of the residents of Jefferson County and does not provide substantially equal weight for all the voters of that County. Particularly disturbing to plaintiffs was the inclusion of the nonresidents of Jefferson County. Plaintiffs argued that to meet their duty to protect the constitutional and statutory rights of plaintiffs, defendants are obligated to reapportion the Board based on the resident population of Jefferson County and, in doing so, to investigate the extent to which nonresidents of the County are included in the 1990 raw census figures and to delete them from the figures.

In an oral decision from the bench, the District Court granted defendants’ motion for summary judgment and dismissed the complaint. Plaintiffs appealed to the United States Court of Appeals for the Second Circuit and that court certified the following question to this Court:

"Whether, for purposes of local legislative apportionment, 'population,’ defined as 'residents, citizens, or registered voters,’ N.Y. Mun. Home Rule Law § 10 (1) (ii) (a) (13) (c) (McKinney 1993), necessarily excludes transients, such as military personnel, incarcerated felons, and occupants of group homes.” (995 F2d 12, 14, supra.)

We accepted the question pursuant to section 500.17 of the Rules of the Court of Appeals (see, 22 NYCRR 500.17).

Here, plaintiffs argue that local legislative reapportionment requires modification of the population base to exclude persons who are not domiciliaries or citizens of the jurisdiction. Defendants contend that the legislative history of the Municipal Home Rule Law demonstrates that the Legislature authorized use of the total population as an apportionment base and that sound policy reasons support defendants’ construction of the Municipal Home Rule Law.

I

Municipal Home Rule Law § 10 (1) (ii) (a) (13) (c) states, in part, "As used in this subparagraph the term 'population’ shall mean residents, citizens, or registered voters.” The supporting bill to this 1969 amendment to the statute was drafted in response to the then newly stated requirement of "one man, one vote” (see, Reynolds v Sims, 377 US 533, supra) which this Court held applicable to local "elective legislative bodies exercising general governmental powers” (Seaman v Fedourich, 16 NY2d 94, 101). Local governments, struggling to meet the new mandate, found themselves in "turmoil” given the lack of specificity of the parameters of "one man, one vote” or any specific instructions on how to apply the doctrine (see, 1969 NY Legis Ann, at 242). In an attempt to remedy this situation, this amendment to the statute was added, providing "[m]aximum flexibility * * * to local governments to fashion plans which meet both the needs of their communities and the desires of the majority of their electorates” (id.). Similarly, the United States Supreme Court recognized "the immense pressures facing units of local government, and * * * the greatly varying problems with which they must deal” and indicated that "[t]he Constitution does not require that a uniform straitjacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems” (Avery v Midland County, 390 US 474, 485, supra). Thus, the Municipal Home Rule Law embodies the sentiment of the Supreme Court that flexibility is key to allowing the local governments to function effectively in meeting the needs of apportionment. This sentiment is starkly contrasted by the position plaintiffs urge us to adopt, that section 10 (1) (ii) (a) (13) (c) of the Municipal Home Rule Law must be read as necessarily excluding transients.

Specifically, regarding the issue of transients, the Supreme Court has stated:

"Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime, in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere. Unless a choice is one the Constitution forbids * * * the resulting apportionment base offends no constitutional bar, and compliance with the rule established in Reynolds v. Sims is to be measured thereby” (Burns v Richardson, 384 US 73, 92).

A "choice the Constitution forbids” is illustrated by Carrington v Rash (380 US 89) where the Supreme Court held that Texas’ absolute prohibition against military personnel exercising their right to vote in "any election in that State” while enlisted in the armed forces was violative of the 14th Amendment’s Equal Protection Clause. That decision illustrates that the exclusion of transients from a voting base will be carefully scrutinized and thus must be articulated carefully. The Carrington decision noted that States "may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State” (id., at 96). It is unquestioned that the States are granted considerable deference in determining the parameters of an apportionment population, and if a "necessary exclusion” is to be made, it should be made explicitly and well supported with reasons by the Legislature. The theme of flexibility is not tempered with a propensity toward the exclusion of transients. If anything, the tendency to include such classes of persons for apportionment purposes appears to be the preference.

II

New York’s legislative districts as well as its congressional seats are both apportioned based on the number "of inhabitants of the state” (see, State Law §§ 120, 123, 111; L 1983, ch 1003, § 3; see also, NY Const, art III, §§ 3, 4, 5). There is no indication that the Legislature intended that municipalities be denied the same base as allowed the State districts. Had the Legislature intended to so restrict municipalities, it would have made that restriction explicit. Otherwise, we are not compelled to differentiate between State and local legislative bodies for purposes of the appropriate apportionment base.

Notwithstanding plaintiffs’ position, these transients are also integral parts of their respective communities. Military persons, children, mental patients and prisoners all affect the social and economic character of their environments. Their impact results in employment opportunities and contributes to the tax base. They also use services provided by the municipalities. Thus, their inclusion for apportionment purposes makes sense on several levels.

Plaintiffs urge also that the term "resident” should be restricted to a person’s domicile for apportionment purposes. That construction of the term would serve only to lend more confusion to the issue given the inherent difficulty in distinguishing between inhabitants and domiciliaries.

We also agree with defendants that if plaintiffs’ position is adopted, municipal reapportionment of most of the entire State would be required. We are reluctant to construe the Municipal Home Rule Law to facilitate that result absent clear indication from the Legislature that such construction would be appropriate.

Ill

Plaintiffs’ contention that cases arising prior to the enactment of Municipal Home Rule Law § 10 (1) (ii) (a) (13) (c) support their position that the population base must be adjusted to exclude persons who are not domiciliaries or citizens of the County is unavailing. That the cases were decided before the statute was enacted gives us pause in the first instance because we are bound to rule consistently with what we find is the will of the Legislature. Specifically, plaintiffs argue that our decision in Seaman v Fedourich (16 NY2d 94, supra) supports their position. We disagree. In that case, we held that excluding patients at the State hospital from the districting plan without investigating relevant factors — "such as, for instance, where they had previously lived and where they had voted in the past — is arbitrary and discriminatory” (id., at 105). This holding supports the policy of inclusion absent specific reasons for exclusion.

To the extent that Davis v Board of Supervisors (28 AD2d 583) suggests that mental patients must be excluded absent a showing concerning their residence, we disagree with its reading of Seaman. Davis comes close to mandating an affirmative duty for legislative bodies to show why specific transients are included. We do not find such a requirement in cases from the Supreme Court, this Court, any statute or any other authority.

Plaintiffs rely upon Greenwald v Board of Supervisors (567 F Supp 200, affd 742 F2d 1434) where the United States District Court for the Southern District of New York held, inter alla, that absent a showing of intent to reside in the county, the inclusion in the weighted voting plan of students and other individuals living in group homes who had not explicitly indicated their intent to become residents was error. That court concluded:

"[Residence for local apportionment purposes, as with voting rights, requires both presence and an intent to remain. Consistent with the definition of residence for voting rights purposes, mere presence in Sullivan County does not imply an intent to remain as to those groups described in Article II, section 4, of the New York Constitution” (id., at 208).

Article II, §4 of the New York Constitution provides that certain persons who are temporarily present or away do not gain or lose residence. It states:

"For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while employed in the service of the United States; nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse, or other asylum, or institution wholly or partially supported at public expense or by charity; nor while confined in any public prison.”

As this section of the Constitution indicates, however, it applies "[f]or the purpose of voting.” Unquestionably, different standards are involved when comparing an individual’s actual right to vote to actions the Legislature may take to facilitate apportionment. While it is virtually inconceivable that, for voting purposes, a court would question the principle that any citizen’s vote must be equal to that of any other citizen (see, Gray v Sanders, 372 US 368, 379-380), apportionment itself involves the application of different standards. In Reynolds v Sims, the Supreme Court stated, "We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement” (377 US 533, 577, supra; see also, Franklin v Krause, 32 NY2d 234, 238, appeal dismissed 415 US 904). Contrary to the District Court’s decision in Greenwald, there is no requirement in New York’s Constitution or the Municipal Home Rule Law that obligates a local legislature, in the context of apportionment, to use the same standards required for voting purposes, specifically, presence and an intent to remain. Additionally, we agree with defendants that even though certain citizens within a given population may not have the right to vote, a 12-year-old child for example, that citizen nevertheless would properly be part of the population base for apportionment purposes. That residence in the apportionment sense be construed more broadly than in terms of voting rights is appropriate. The goals and objectives of the concepts differ significantly.

Given the restricted nature of the question certified to us from the United States Court of Appeals for the Second Circuit, we do not address plaintiffs’ contention that defendants’ apportionment plan is unconstitutional on its face.

Accordingly, the certified question should be answered in the negative.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Levine concur.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and records submitted, certified question answered in the negative.


author: Hancock, Jr., J. Levine, J.

text:
    [628 NE2d 1320, 607 NYS2d 610]
    The People of the State of New York, Respondent, v Andre Martinez, Appellant.
    Argued November 11, 1993;
    decided December 21, 1993

      POINTS OF COUNSEL

      Irma Ascher, New York City, and Philip L. Weinstein for appellant.
    I. Where it was impossible to determine from the jury’s general verdict, convicting appellant of possession of contraband, whether the jurors relied upon lawful instructions for determining guilt or upon an unlawfully charged and inaccurately elucidated drug factory presumption, the Court below erred in upholding appellant’s convictions on the basis of its determination that the valid theory of guilt had support in the record. (Stromberg v United States, 283 US 359; Bachellar v Maryland, 397 US 564; Leary v United States, 395 US 6; Street v New York, 394 US 576; Cramer v United States, 325 US 1; Williams v North Carolina, 317 US 287; Boyde v California, 494 US 370; Zant v Stephens, 462 US 862; Yates v United States, 354 US 298; Griffin v United States, 502 US 46, 112 S Ct 466.) II. Appellant was denied his due process right to present a defense by the trial court’s refusal to direct the jurors, in its identification charge, to scrutinize the undercover’s several descriptions of the perpetrator, all of them unlike appellant’s appearance, while nevertheless detailing those factors favorable to the People’s claim that the undercover’s identification was reliable. (People v Whalen, 59 NY2d 273; People v Perez, 77 NY2d 928; People v Huertas, 75 NY2d 487; People v Knowell, 127 AD2d 794; People v Memminger, 126 AD2d 752; People v Anthony P., 72 AD2d 525; People v McCann, 90 AD2d 554; People v Rothaar, 75 AD2d 652; People v Rodriquez, 61 AD2d 914; People v Landor, 92 AD2d 625.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Nicoletta J. Caferri and Steven J. Chananie of counsel), for respondent.
    I. Defendant’s claim that the "drug factory” presumption charge denied him a fair trial is unpreserved for appellate review. In any event, any error in giving the charge was harmless because there was no reasonable possibility or likelihood that the jury relied upon it to reach its verdict. (People v Daniels, 37 NY2d 624; People v Martinez, 186 AD2d 151; People v Liccione, 50 NY2d 850; People v Thomas, 50 NY2d 467; People v Mosley, 67 NY2d 985; People v Le Mieux, 51 NY2d 981; People v De Renzzio, 19 NY2d 45; People v Buckley, 75 NY2d 843; People v Whalen, 59 NY2d 273; People v McGee, 55 NY2d 407.) II. The court’s charge on identification accurately stated the proper standard by which the jury was to assess identification evidence and was evenly balanced. (People v Whalen, 59 NY2d 273; People v Perez, 77 NY2d 928; People v James, 170 AD2d 694; People v Martinez, 118 AD2d 661; People v Beasley, 114 AD2d 415; People v Smith, 100 AD2d 857; People v Rudd, 100 AD2d 857; People v Woods, 41 NY2d 279; People v Daniels, 88 AD2d 392.)
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant was convicted by a jury of, among other crimes, one count of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). In submitting the criminal possession count, the trial court instructed the jury that it could find defendant guilty of either actual possession or constructive possession and that it could find that defendant knowingly possessed the drugs by applying the "drug factory” presumption (see, Penal Law § 220.25 [2]). The jury returned a general verdict of guilty on the criminal possession count without specifying the basis for its finding. On appeal the Appellate Division held that the presumption should not have been charged because the drugs were not in plain view and there was insufficient evidence to evince an intent to engage in a drug factory operation. That Court nevertheless affirmed, applying a harmless error analysis and finding overwhelming evidence to establish defendant’s guilt on the basis of constructive possession.

Leave has been granted primarily to address defendant’s contention that harmless error analysis was improperly employed where the jury returned a general verdict and it was thus impossible to determine whether it convicted defendant under an erroneously submitted theory. Under the particular circumstances in this case, we agree with defendant that harmless error analysis was inappropriate. Accordingly, there should be a reversal and a new trial.

I

Defendant was tried together with codefendant Alphonso Mejie, the lessee of apartment 7B, a one-room apartment with attached kitchen in a building on 88th Street in Queens, where undercover police had purchased cocaine on three occasions: September 13, September 20, and September 29, 1988. Codefendant Mejie was charged with criminal sale of a controlled substance in connection with the September 13 transaction. The undercover agent who made the September 13 purchase testified that when he was in apartment 7B he observed Mejie weigh the purchased substance on a scale in the kitchen and wrap it in aluminum foil. The package was exchanged for prerecorded cash.

Another undercover officer testified to making the purchases of cocaine from defendant on September 20 and 29, also from apartment 7B. On the latter occasion, the witness said that he observed, on top of a kitchen cabinet, open tinfoil containing a substance that appeared to be cocaine. A woman who was in the apartment with defendant sealed the substance in the tinfoil and handed it to defendant; defendant, in turn, handed the package to the undercover in exchange for the money.

On September 29, after the drug purchase on that day, the police executed a search warrant for the Mejie apartment, 7B. A search revealed a tinfoil packet of cocaine on the floor in the four-to-five-inch space between a couch and the wall. Inside a closet, the police found a one dollar bill and a five dollar bill, both containing some residue of cocaine. Also in a closet, the police recovered $110 of prerecorded buy money commingled with another $850, all secreted in a child’s pocketbook. An additional $3,630 in cash was discovered in one of the closets. Both defendant and codefendant Mejie, as well as two women, were present in apartment 7B when the warrant was executed. In addition to the sale charges, both defendant and codefendant Mejie were charged and tried for criminal possession of a controlled substance in the third degree — i.e., possessing a narcotic with intent to sell it.

In charging the jury with respect to the possession charges against both defendants, the trial court stated that possession could be actual possession as when the drugs are found on the defendant’s person or in clothing that he is wearing. Alternatively, the court instructed that the possession could be constructive, i.e., possession by a person who, although not in actual physical possession, nonetheless "has both the power and intent to exercise dominion or control over the controlled substance, either directly or through another person or persons”. The court then instructed the jury with respect to the Penal Law § 220.25 (2) presumption, as follows:

"When narcotic drugs are found in open view in a private room other than in a public place under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare such controlled substance for sale, each and every person in close proximity to such controlled substance at the time the drug was found is presumed to know of such possession.
"The term close proximity does not necessarily mean the same room where the drugs are found, so long as this room is either adjacent to or could be observed from the room that the person is located.
"Neither does the term open view necessarily mean the drugs themselves were in plain view or displayed. It is sufficient for the presumption to apply that the drugs were found in a container or package and there was other evidence of preparation of drugs for sales.”

The jury convicted defendant of the September 20 and 29 sales, convicted codefendant Mejie of the September 13 sale and convicted both defendants of criminal possession with intent to sell the drugs found in apartment 7B on execution of the search warrant on September 29.

On appeal, the Appellate Division agreed with defendant that no view of the evidence supported the "drug factory” presumption charge under Penal Law § 220.25 (2). The Court concluded that the tinfoil packet was not found in plain view since it was on the floor in the four-to-five-inch space between the couch and the wall. Moreover, the Court held that even if the packet could be considered to have been in plain view, "the evidence does not show 'circumstances evincing an intent to unlawfully mix, compound, package, or otherwise prepare for sale’ (Penal Law § 220.25 [2])” (People v Martinez, 186 AD2d 151, 152).

Despite its conclusion that the "drug factory” presumption had been erroneously charged, the Appellate Division unanimously held that a reversal was not required on the basis of harmless error. It reasoned:

"The trial court instructed the jury on three theories of possession: actual possession, constructive possession, and the drug factory presumption of possession. Since there is overwhelming evidence that the defendant exercised 'dominion or control’ over the property by a sufficient level of control over the area in which the contraband was found * * * the error is harmless beyond a reasonable doubt. The People established that the defendant sold cocaine from that apartment on two different occasions, including a sale just minutes before the police searched the apartment and arrested the defendant” (id., at 152-153 [citations omitted]).

The Appellate Division rejected defendant’s other contentions including his argument for a reversal because of an unbalanced identification charge. It affirmed defendant’s convictions on all counts. We conclude that because of the defect in the conviction on the criminal possession count, there must be a reversal and a new trial. We do not address defendant’s other contentions of error.

II

It is an established rule of Supreme Court jurisprudence that a general verdict of guilt must be set aside where the jurors in reaching their verdict may have relied on an illegal ground or on an alternative legal ground and there is no way of knowing which ground they chose (see, e.g., Griffin v United States, 502 US 46, 112 S Ct 466, 470-472; Yates v United States, 354 US 298, 311-312; Stromberg v California, 283 US 359, 367-368). Thus, the Supreme Court has consistently vacated general verdicts where one of the choices afforded to the jury was to find guilt on an unconstitutional theory. It has rejected the contention that the verdict should be upheld because the fact finder presumably based it on an alternative constitutional ground (see, e.g., Bachellar v Maryland, 397 US 564, 569-571; Street v New York, 394 US 576, 585-590; Williams v North Carolina, 317 US 287, 291-292). In Yates, the Supreme Court applied this same rationale and set aside a general verdict where one of the bases on which guilt could have been predicated, although not unconstitutional, was nevertheless illegal (see, Yates, supra, at 311-312 [one statutory ground on which jury could have convicted under court’s instructions was time-barred and, therefore, unlawful]). Recently, in Griffin (supra), the Supreme Court reaffirmed the Stromberg/Yates rule that there must be a reversal if a general verdict of guilty may have been based on an unlawful theory. The Griffin Court upheld the conviction, however, drawing a distinction between a case where one of the possible grounds for a verdict was illegal as in Yates or unconstitutional as in Stromberg and the situation where, as in Griffin, one of the jury’s charged options was not supported by sufficient evidence. The Court noted that, as opposed to when the jurors have been given the choice of an illegal option, when they "have been left the option of relying upon a factually inadequate theory [they] are well equipped to analyze the evidence” (Griffin, 502 US, at —, 112 S Ct, at 474, supra).

Although our Court has never applied the precise theory adopted by the Supreme Court in Yates and Stromberg, we have in analogous situations set aside a verdict where there was a possibility that it was based on an illegal ground which had support in the record. Thus, in People v Roberts (72 NY2d 489) where a jury verdict of manslaughter in the first degree could have been based on evidence of strangulation adduced at trial — a theory not presented to the Grand Jury and inconsistent with the allegations in the indictment — we reversed the conviction since a verdict based on strangulation would have violated defendant’s constitutional and statutory right to be prosecuted in accordance with the indictment (see, id., at 497-500; cf., People v Grega, 72 NY2d 489, 496-497 [the companion case decided with People v Roberts, supra]). Similarly, in People v Kaminski (58 NY2d 886), we held that sodomy convictions could not stand where the indictment charged forcible compulsion only by means of physical force but the court erroneously charged that the jury could convict if it found compulsion either from physical force or from threats placing the victim in fear of death or physical injury. People v Grega (supra) illustrates the opposite case. There, the indictment charged defendant with rape and sodomy committed through forcible compulsion consisting of physical force; it made no mention of forcible compulsion by express or implied threats. But the trial court, as in Kaminski, erroneously charged the jury that compulsion could be established by proof of physical force or by proof of express or implied threats. The record showed, however, that the only evidence of compulsion adduced at trial was that caused by physical force; thus the proof did not vary from the allegations in the indictment. We, therefore, reinstated the jury verdict, distinguishing Kaminski in view of the absence of evidence of express or implied threats and noting that if there had been such evidence, defendant’s right to be tried only for indicted crimes might well have been violated (see, Grega, supra, at 496).

Ill

In the case at bar, the Appellate Division held that the jury’s general verdict was invalid since it could not have been known if the result was predicated on the erroneous "drug factory” presumption or on the lawful alternative theory of constructive possession without the aid of the presumption. We believe that this conclusion is compelled under the rationale of the Supreme Court’s decisions in Stromberg and Yates and our holdings in Roberts and Kaminski. The Appellate Division, nevertheless, applied a harmless error analysis and affirmed. Inasmuch as the jury’s verdict may have been predicated on an illegal theory and, therefore, subject to vacatur under Stromberg/Yates, the question is whether the Appellate Division correctly sustained the conviction by reviewing the record and finding "overwhelming evidence that the defendant exercised 'dominion or control’ over the property” (Martinez, supra, at 152-153) and holding the error harmless beyond a reasonable doubt.

We conclude that the doctrine of harmless error was improperly applied. The Appellate Division was not presented with the problem of evaluating a trial error and the likelihood that it may have contributed to a result known to have been reached by the jury (see, e.g., People v Crimmins, 36 NY2d 230, 237-242; Chapman v California, 386 US 18). Here, the result reached by the jury was unknown; i.e., whether its verdict was predicated on the illegally charged presumption or on a finding of constructive possession irrespective of the presumption. The unknown aspect of the verdict involved the identity and legality of the theory that the jury chose for its verdict, not the tainting effect of some trial error on a known result (compare, People v Smalls, 55 NY2d 407, 416-417). Where it is impossible for a reviewing court to determine whether the guilty verdict was founded on an illegal theory, it may not review the evidence under a harmless error analysis and, in effect, assume the jury’s fact-finding function by concluding that the jury must have reached its result on some alternative legal ground (see, People v Diaz, 19 NY2d 547, 549-550 [reversing Appellate Division’s application of harmless error where trial court incorrectly failed to charge that testimony of accomplice required corroboration]; People v Kelly, 302 NY 512, 517-518; see also, People v Gallagher, 69 NY2d 525, 530; People v Minarich, 46 NY2d 970, 971). Indeed, the Supreme Court in Yates specifically rejected a harmless error analysis (see, Yates, supra, at 311-312; see also, Griffin, 502 US, at —, 112 S Ct, at 474, supra [noting that when "jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error”]). Similarly, in People v Kelly (302 NY 512, supra), a case where the trial court delivered both a correct and an incorrect statement of the insanity defense, our Court refused to treat the error as insubstantial, observing:

"It is urged upon us * * * that * * * we should assume that the jurors — each of the twelve of them — followed the court when it was correct and disregarded the charge when it was incorrect * * * [that they] had the wit and ability, with unanimity, to adopt the right one and reject the wrong one. We think the statement of the thought contains its refutation” (id., at 517).

IV

The People, however, advance an argument for upholding the conviction aside from the Appellate Division’s application of harmless error. The argument focuses on the Stromberg/ Yates rule and the holding in Griffin (supra) that a verdict may be upheld when the jurors have been left the option of relying on a factually inadequate theory as opposed to one that is legally inadequate (Griffin, 502 US, at —, 112 S Ct, at 474, supra). Relying principally on People v Grega (supra, at 496-497), in addition to Griffin, they contend that here, as in Grega, there was insufficient evidence to support the verdict on the erroneous theory and that, therefore, it can be concluded that the jury must have based its verdict on a theory for which there was sufficient evidence. Thus, they would distinguish Roberts, Kaminski, Stromberg and Yates where the records contained sufficient evidence on which the jurors could have reached unlawful verdicts.

The argument is not persuasive since Grega and Griffin are not in point; for, under the improper "drug factory” presumption charge as given by the court here, there was evidence to support a verdict on that erroneous theory. Although a requirement for charging the presumption is that the drug be "in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance” (Penal Law § 220.25 [2] [emphasis added]), the charge, in effect, nullified that requirement. The trial court instructed the jury that "the term open view [does not] necessarily mean the drugs themselves were in plain view or displayed”. Thus, the court’s expanded charge permitted the jury to conclude that drugs found in the space between the couch and the wall would satisfy the statute. Moreover, as to the statutory requirement of "close proximity”, the trial court’s charge made the presumption applicable to anyone present in apartment 7B when the warrant was executed. The court told the jury that the "close proximity does not necessarily mean the same room where the drugs are found, so long as this room is either adjacent to or could be observed from the room that the person is located” (emphasis added).

Finally, there was nothing in the charge restricting the evidence of observations or activities — either as to nature or time of occurrence — that the jury could consider as constituting "circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance”. The jury could well have considered as relevant on this issue the evidence of the three drug purchases on September 13, 20 and 29, including the testimony concerning the scales observed in the kitchen on September 13 and the open tinfoil containing what proved to be cocaine observed on a kitchen cabinet at the time of the September 29 purchase. Taking this proof of past activities together with the evidence of the large sums of cash and the additional drugs found in apartment 7B on execution of the search warrant, the jury could have been satisfied that there was enough to evince an intent to operate a "drug factory” under the interpretation of the statute given in the court’s charge. Thus, like Roberts, Stromberg, and Yates, and unlike Grega and Griffin, since there was some evidence to support a verdict on the erroneous basis, there must be a new trial.

In sum, we agree with the Appellate Division that the evidence did not warrant a "drug factory” charge under the statute. But given the court’s expanded charge on the presumption, there is no way of concluding, short of speculation, that the jury did not rely on it. As the Supreme Court observed in Bollenbach v United States (326 US 607), an analogous case where the trial court had mistakenly charged a presumption:

"In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, for ascertainment of guilt by a jury under appropriate judicial guidance, however cumbersome that process may be” (id., at 615).

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

Levine, J.

(dissenting). I respectfully dissent. As I read the majority’s opinion, its rationale for reversal is as follows: (1) it holds that charging the jury on the "drug factory” presumption (Penal Law § 220.25 [2]) of knowing possession of a controlled substance constituted the submission of an "illegal” "ground” or "theory” (majority opn, at 32-34) of criminal liability; (2) relying upon three Supreme Court cases (Griffin v United States, 502 US 46, 112 S Ct 466; Yates v United States, 354 US 298; Stromberg v California, 283 US 359), the opinion then holds that submitting such an illegal theory to the jury was reversible error; (3) finally, the opinion concludes that the improper submission of such an illegal theory is not subject to harmless error analysis, because the jury returned a general verdict of guilty of drug possession and there is no way of conclusively determining whether it applied the drug factory presumption in reaching that verdict. There are fatal infirmities in each of the foregoing three propositions upon which the majority’s decision rests.

I

In my view, the drug factory presumption, like any other statutory or, for that matter, common-law presumption, is not a theory or a ground of criminal liability. With respect to all of such presumptions the court merely instructs the jury that it may (or may not) apply the presumption in order to infer the existence of one or more of the factual elements of the crime charged. The presumption involved in this case, designed to permit a jury to infer the knowing possession of a controlled substance from certain facts in evidence, is not different in kind from the presumption (designed to permit the jury to infer criminal intent) erroneously charged in People v McGee, the companion case to People v Smalls (55 NY2d 407, 417). Yet, in People v McGee, this Court held that a constitutional error in charging the presumption was subject to harmless error analysis (id.). In McGee, this Court then analyzed the evidence and whether the defendant’s intent "was made a vital issue to be resolved by the jury”, and concluded that there was "no reasonable possibility that the error might have affected the jury’s determination of [defendant’s] guilt and that the error was therefore harmless beyond a reasonable doubt” (id., at 417). I am unable to perceive any distinction between the erroneous charging of the drug factory presumption here and the erroneous charging in People v McGee that "a person is presumed to intend the natural consequences of his act” (id., at 416). In McGee, just as here, "the result reached by the jury was unknown; i.e., whether its verdict was predicated on the illegally charged presumption or on a finding of [guilt] irrespective of the presumption” (majority opn, at 35). Therefore, since we are dealing with an improper evidentiary charge rather than a theory or ground of criminal liability defining the crime itself, clearly harmless error analysis applies (People v McGee, supra).

II

Even if the drug factory presumption constituted a theory or ground of criminal liability, it would not, under Griffin v United States (supra) and other Supreme Court decisions, be considered an illegal ground or theory in this case. Uncontestably, the sole reason why the drug factory presumption should not have been charged here was that there was insufficient evidence to support it, i.e., the drugs here were not found "in open view * * * under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance” (Penal Law § 220.25 [2]). Instead, the drugs were concealed on the floor behind a couch. Griffin makes clear beyond peradventure that the submission of one possible basis for criminal liability in a case for which there was insufficient evidence to support a conviction is not a ground for reversal:

"Petitioner cites no case, and we are aware of none, in which we have set aside a general verdict because one of the possible bases of conviction was neither unconstitutional as in Stromberg, nor even illegal as in Yates, but merely unsupported by sufficient evidence. If such invalidation on evidentiary grounds were appropriate, it is hard to see how it could be limited to those alternative bases of conviction that constitute separate legal grounds; surely the underlying principle would apply equally, for example, to an indictment charging murder by shooting or drowning, where the evidence of drowning proves inadequate. See Schad v. Arizona, 501 U.S., at---, 111 S.Ct., at 2496-2497” (Griffin v United States, 502 US, at —, 112 S Ct, at 472, supra [emphasis supplied]).

Griffin expressly limited the holdings of Yates v United States (supra) and Stromberg v California (supra) to errors in submitting alternative theories or grounds for establishing the commission of the crime charged where conviction on that theory would be prohibited as unconstitutional, or illegal as, e.g., barred by the Statute of Limitations (Griffin v United States, 502 US, at —, 112 S Ct, at 472-473, supra).

Indeed, the Court in Griffin cited with approval Turner v United States (396 US 398) as properly rejecting "a claim that the evidence was insufficient to support a general guilty verdict under a one-count indictment charging the defendant with knowingly purchasing, possessing, dispensing, and distributing heroin not in or from the original stamped package, in violation of 26 U.S.C. § 4704 (a) (1964 ed.). We held [in Turner v United States] that the conviction would have to be sustained if there was sufficient evidence of distribution alone” (Griffin v United States, 502 US, at —, 112 S Ct, at 472-473, supra [emphasis in original]). Our case law similarly upholds a general verdict under the same circumstances (see, People v Charles, 61 NY2d 321, 327; People v Clougher, 246 NY 106, 112; People v Nicholas, 35 AD2d 18, 20 [Cooke, J.]).

It is further noteworthy that the Supreme Court in Turner v United States (supra) applied harmless error analysis to the additional claim that it was error to charge the statutory presumption of criminal distribution from the defendant’s possession of the heroin:

"So, too, the instruction on the presumption is beside the point, since even if invalid, it was harmless error; the jury must have believed the possession evidence which in itself established a distribution barred by the statute” (396 US, at 421).

Ill

Even if the drug factory presumption constituted an illegal theory or ground of criminal liability here, the submission of which to the jury was error, it would nonetheless be subject to harmless error analysis. This is the explicit teaching of People v Grega (72 NY2d 489). Grega did involve the submission of an illegal theory of liability for rape in the first degree, i.e., by means of forcible compulsion by threat (Penal Law § 130.00 [8] [b]). Because the indictment charged the defendant only with rape by forcible compulsion consisting of the use of physical force (see, Penal Law § 130.00 [8] [a]), the submission of the alternative theory of compulsion by threat was held to violate article I, § 6 of the State Constitution (People v Grega, 72 NY2d, at 495, supra). There having been no evidence in the case of the use of any threat, however, we held that the constitutional error in Grega was harmless and did not require reversal.

"While the trial court should not have charged both statutory definitions of forcible compulsion, but instead should have tailored its instructions to the case before it, on this record we conclude that the additional portion of the charge had no potential for prejudicing defendant, and thus was harmless error” (id., at 497).

The majority states that Grega is distinguishable, however, because the trial court erroneously deviated from the statutory language of the drug factory presumption of Penal Law § 220.25 (2), by relaxing the statutory requirements that the drugs be in "open view” and in "close proximity” to defendant, and by not making clear that the necessary elements for applying the presumption must be present at the time the drugs were found. The majority posits the possibility that this error in instruction permitted the jury to apply the presumption on the basis of the drugs found hidden behind the couch during the raid on September 29, and the drug sale preparation activities observed on previous occasions. Grega is then distinguished because here there was at least some evidence which the jury might possibly have relied upon to apply the drug factory presumption (as charged) to the case (majority opn, at 36-37). The majority concludes that, because it is "impossible” (emphasis supplied) to determine whether or not the jury applied the illegal theory of the drug factory presumption, harmless error analysis is precluded (majority opn, at 35).

There are several major flaws in the majority’s analysis. First, the error, if any, in the way the drug factory presumption was charged surely did not constitute the submission of an illegal theory of criminal liability in the Griffin v United States (supra) sense, or in the sense employed in any of the other cases relied upon by the majority, i.e., a theory of liability leading to an unconstitutional conviction (Stromberg v California, supra), a conviction barred by the Statute of Limitations (Yates v United States, supra) or a conviction of a crime for which the defendant had not been indicted (People v Grega, supra). The trial court’s deviation from the statutory terms of the drug factory presumption clearly appears to be nothing more than a common variety of error in instructions, such as in defining the elements of a crime or how the jury may use inferences or presumptions from the evidence. Raising this kind of error in instructions to the status of the submission of an illegal theory of criminal liability turns the principle enunciated in Griffin v United States (supra) on its head, and is an ominous precedent.

What is even more disquieting is the majority’s circular rationale for precluding harmless error analysis in this case. Under it, a "theory” of liability, whether in the form of a statutory presumption or of one of the alternative bases for conviction of the crime charged, as alleged in the accusatory instrument, becomes an illegal theory, not subject to harmless error analysis, whenever there is legally insufficient evidence to convict on that "theory”, yet there is some lesser quantum of evidence rendering it theoretically impossible to determine whether the jury’s general verdict of guilty was based upon that theory. In essence, then, the majority’s rationale is that harmless error analysis is precluded here because it cannot be conclusively demonstrated that the error in submitting the drug factory presumption was not harmful. The majority has, thus, imposed a per se rule divorced from the actual realities of the trial or any attempt fairly to assess the impact of the error on the fact-finding process in the case. The result here is not only to overturn defendant’s conviction of drug possession arising out of the September 29, 1988 raid, but to reverse two solidly proven drug sale convictions, one occurring nine days before the raid.

Applying appropriate harmless error analysis for the non-constitutional error (see, People v Crimmins, 36 NY2d 230, 241-242) in charging the drug factory presumption, I would affirm defendant’s drug possession conviction, and with it the convictions on the drug sales. The evidence of defendant’s dominion and control over drugs in his codefendant’s apartment, thereby establishing his constructive possession without the aid of the drug factory presumption, was indeed overwhelming, as found by the Appellate Division and not disputed by the majority here. The trial court, in charging the drug factory presumption, clearly and unequivocally stated that the presumption only applies when "drugs are found * * * under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare such controlled substance for sale * * * at the time the drug was found” (emphasis supplied). Thus, there was no "significant probability” that, but for the error in charging the drug factory presumption, the jury would have acquitted defendant of criminal possession of the controlled substance found in the apartment on September 29 (People v Crimmins, 36 NY2d, at 242, supra). Accordingly, I vote to affirm the order of the Appellate Division in all respects.

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

Order reversed, etc.

      . Penal Law § 220.25 (2), in pertinent part, provides: "The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found.”

      . Because the criminal possession count and the sale counts are factually interrelated, there should be a reversal and a new trial on both the sale and possession counts (see, People v Andujas, 79 NY2d 113, 118, n; People v Kitching, 78 NY2d 532, 539, n 2).

      . Contrary to the dissent (dissenting opn, at 39-40), the submission of the "drug factory” presumption as a basis on which the jury could have found defendant guilty gave the jury the choice of convicting defendant based upon an erroneously charged legal theory which should never have been in the case. The trial court committed two errors. First, as the Appellate Division properly held, Penal Law § 220.25 (2) should not have been charged at all since, inter alla, the drugs were not in "open view” or found "under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare [the drugs] for sale”. Additionally, as discussed below in part TV, the presumption as charged by the court did not track the statute but went substantially beyond it and would have permitted the jurors to conclude that the requirements of the statute for finding that defendant was in knowing possession had been met: i.e., that the drugs were found in "open view” and in "close proximity” to defendant under circumstances evincing an intent to prepare them for sale. Thus, it is the unusual combination of these two errors that made it possible for the jury to convict on an erroneous theory and brings the case within the Yates/Stromberg rule.

      . The People’s and the dissent’s (dissenting opn, at 38-39) reliance on People v McGee, the companion case to People v Smalls (55 NY2d 407), is misplaced. In McGee, there was no question about the result the jury had reached, i.e., that the defendant was guilty of intending to commit robbery, the predicate felony underlying the felony murder charge. The only question was whether the trial court’s erroneous jury charge on presuming intent (see, Sandstrom v Montana, 442 US 510) required reversal. The Court merely concluded that because McGee did "not involve a trial in which defendant’s intent was made a vital issue to be resolved by the jury, on conflicting evidence”, harmless error analysis was applicable (Smalls, supra, at 417). Here, by contrast, the theory relied on by the jury, which was vital to its conclusion, was unknown. Thus, harmless error analysis is not applicable.