text:
    In the Matter of William S. Adams, Individually and as Executive Director of Committee for New York’s Future, Appellant, v Carlos Cuevas, as City Clerk of the City of New York, et al., Respondents.
    Argued October 10, 1986;
    decided October 16, 1986

      POINTS OF COUNSEL

      Jay Greenfield, Brad S. Karp and Stephen M. Merkel for appellant.
    I. The subject matter of the homeless family shelter amendment is appropriate for a charter amendment. (Matter of Cassese v Katz, 26 AD2d 248, 18 NY2d 694; Matter of Astwood v Cohen, 291 NY 484; Matter of Warden [Newburgh Police Dept.], 300 NY 39.) II. The homeless family shelter amendment meets the requirement of Municipal Home Rule Law § 37 (11). (Welty v Heafy, 200 Misc 1010; Matter of Hardwick v Kramer, 200 Misc 207; Matter of Mitrione, 28 Misc 2d 806,14 AD2d 716.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis, Leonard Koerner and Stephen Louis of counsel), for respondents.
    I. Municipal Home Rule Law § 37 (11) prohibits the City Clerk from certifying as valid any proposed charter amendment initiated by referendum, except those which involve the adoption of an entirely new charter or a reorganization of the functions of city government, unless the referendum contains "a plan to provide moneys and revenues” sufficient to meet the expenditures proposed by the referendum. The financing plan proposed by this referendum fails to come within the meaning of a "plan to provide moneys and revenues” because it leaves to the City Council the responsibility of finding sources of revenue to fund the proposed $30,000,000 emergency shelter program for homeless families and fails to specify new sources of revenue sufficient to meet the proposed expenditure. (Matter of Hardwick v Kramer, 200 Misc 207, 278 App Div 1040, 303 NY 605; Welty v Heafy, 200 Misc 1010, 279 App Div 662; City of Syracuse v Wright, 4 Misc 2d 714; Matter of Mitrione, 28 Misc 2d 806, 14 AD2d 716; Matter of Noonan v O’Leary, 206 Misc 175, 284 App Div 646.) II. This referendum purporting to amend New York City Charter § 603 mandates that the Commissioner provide "enclosed separate sleeping areas” for homeless families. This purported amendment does not alter any power or duty conferred by section 603; instead, it merely directs the Commissioner how to carry out any power or duty he may have with respect to providing emergency shelter for homeless families. Consequently, this proposal does not amend section 603 because it makes no "change” in an existing charter provision. (Matter of Cassese v Katz, 26 AD2d 248, 18 NY2d 694; Matter of McCabe v Voorhis, 243 NY 401; Matter of Astwood v Cohen, 291 NY 484; Matter of Silberman v Katz, 54 Misc 2d 956; Matter of Fossella v Dinkins, 130 Misc 2d 52, 114 AD2d 340; Matter of Maylender v Morrison, 284 NY 575; Matter of Grenfell [Lawyer], 185 Misc 558, 269 App Div 600, 294 NY 610.)
   OPINION OF THE COURT

Per Curiam.

Petitioner individually and on behalf of an organization known as the "Committee for New York’s Future” is the sponsor of the "homeless family” initiative which seeks to amend chapter 24 of the New York City Charter. The proposed amendment would provide additional assistance to the homeless by requiring that they be housed in enclosed sleeping areas rather than barracks facilities now used as family shelters. The initiative petition was filed with the City Clerk and transmitted by him to the City Council, as the law requires, with his report that the petition did not meet statutory requirements. Petitioner then instituted this article 78 proceeding seeking an order of the court to compel respondent City Clerk to certify the petition valid. Special Term denied the application and dismissed the petition, holding the subject matter of the petition inappropriate for charter amendment through the initiative and referendum process and, alternatively, that the petition failed to provide the sufficient financing plan required by the statute (Municipal Home Rule Law § 37 [11]). The Appellate Division affirmed.

The procedure for placing an initiative on the ballot for public referendum is set forth in Municipal Home Rule Law § 37. Upon the filing with the City Clerk of a petition signed by at least 30,000 registered voters (see, Municipal Home Rule Law § 37 [2]), the Clerk is required to examine the petition and make an initial determination of whether the petition complies with all the requirements of law (see, Municipal Home Rule Law § 37 [5]). Regardless of whether he finds the petition sufficient, the Clerk is required to transmit the initiative to the City Council for its consideration (see, Municipal Home Rule Law § 37 [6]), certifying to the council whether or not it complies with all the requirements of law. If he determines that the petition is in some way deficient the Clerk is required also to so inform the person who filed the petition and specify in what respects it fails to comply (see, Municipal Home Rule Law § 37 [5]). The determination that the petition does not so comply may be challenged by the sponsor in a proceeding in Supreme Court (see, id.).

Municipal Home Rule Law § 37 (11) provides that initiative petitions requiring the expenditure of funds shall not become "effective * * * unless there shall be submitted, as a part of such proposed local law, a plan to provide moneys and revenues sufficient to meet such proposed expenditures”.

The petition before us states that the initiative, if adopted, will cost New York City $30,000,000. It, therefore, is a petition for a proposed local law requiring "an expenditure of money” and must include a plan to provide "revenues sufficient to meet such proposed expenditures.” In an effort to do so the financing plan in the initiative petition provided for the necessary funds to be raised:

"4 (a) * * * pursuant to New York State Social Service Law § 91 or from the general fund, as the City Council shall deem appropriate.
"(b) To the extent that the plan described in the preceding sentence may not provide sufficient funds for such expenditures, the City Council shall enact a local law to raise the income tax on residents and/or the earnings tax on nonresidents and, if necessary, shall take steps to obtain additional authority to impose such taxes.”

Special Term determined that this financing plan did not satisfy the intent of the statute for two reasons: (1) because it merely provided that the revenues needed for realization of the initiative would be made available from the city’s general budgeting process and (2) because it improperly provided that funding would be made available through the levy of new taxes not available to the city without prior approval of the State. We agree that the Clerk committed no error of law in advising the City Council that the initiative contained an invalid financing plan.

Section 37 (11) was enacted at the behest of the Conference of Mayors who were concerned that charter amendments involving substantial expenditures were being proposed or enacted without sufficient consideration of thé cost and the means for financing them (see, Welty v Heafy, 200 Misc 1010, 1012, affd 279 App Div 662; Letter of Addison Mallery, Chairman of Conference of Mayors and other Municipal Officials, Feb. 26, 1951, Governor’s Bill Jacket, L 1951, ch 721, amending City Home Rule Law § 19-a). At the behest of the Conference the statute was amended in 1951 to require that a financing plan be included in an initiative so that the electorate would be aware of the fiscal consequences of the proposal and could exercise their franchise intelligently (see, City of Syracuse v Wright, 4 Misc 2d 714, 724). This statutory purpose is not satisfied by financing plans that do no more than direct that the increased costs shall be met by general budgetary procedures (Matter of Hardwick v Kramer, 200 Misc 207, affd 278 App Div 1040, affd 303 NY 605). To meet statutory requirements, a financing plan must identify available sources from which the needed new revenues can be obtained (see, e.g., Welty v Heafy, supra [plan to be financed by enaction of several permissible local taxes]; City of Syracuse v Wright, 4 Misc 2d 714, supra [plan to be financed by increasing local property taxes; inasmuch as a question of fact existed that real property taxes could be raised, within permissible limits, the Appellate Division had previously remanded the matter for a hearing on the cost of the plan, see, 1 AD2d 577]; Matter of Mitrione, 28 Misc 2d 806, revd on other grounds 14 AD2d 716 [funds to be raised by increasing real estate taxes]). Section 4 (a) of the initiative petition fails to do so and that deficiency is not cured by the reference in it to Social Services Law § 91. Section 91 does no more than authorize the City Commissioner of Public Welfare, as part of the general budgeting process, to present his departmental estimates and requests for appropriation and directs the local legislature to levy taxes to meet such expenditures.

Section 4 (b) of the plan also fails to meet the statutory requirement because the means for financing the initiative recited in it require the municipality to obtain permissive legislation from the State to raise the necessary revenues. The initiative fails to disclose that contingency. The State will not be bound by the results of the referendum and there is no assurance that it will cooperate with the city to permit the city to increase permissible tax levies to meet the responsibilities imposed by the referendum.

Finally, petitioner argues that the plan can be financed by projected savings from the elimination of existing programs for the care of the homeless. That, too, fails to meet the statutory requirements. It is not enough to hope that things will work out; the voters are entitled to advance notice of the cost and what taxes they may be required to pay to meet that cost and to weigh the desirability of the program against the financial impact upon them as taxpayers (see, Matter of Noonan v O’Leary, 284 App Div 646, 648).

In sum, a financial plan included as part of an initiative pursuant to Municipal Home Rule Law § 37 (11) if based in whole or in part upon revenue from a source over which the municipality does not exercise exclusive control is insufficient under Municipal Home Rule Law § 37 (11) as a matter of law. The "homeless family” initiative is invalid because it relies upon such speculative sources of revenue and therefore does not permit the voters to evaluate the impact of the initiative on them and make an informed choice on the issue.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion; Judge Kaye taking no part.

Order affirmed, without costs.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Dennis Thomas, Appellant.
    Argued September 4, 1986;
    decided October 21, 1986

      POINTS OF COUNSEL

      Andrew C. Fine, Charles L. Fuike and Philip L. Weinstein for appellant.
    The admission of the plea allocution made by appellant’s alleged accomplice, which implicated the declarant and appellant, violated State evidentiary law and denied appellant his constitutional due process and confrontation rights, where the declarant’s unavailability deprived appellant of an opportunity for cross-examination. (People v Wheeler, 62 NY2d 867; People v Payne, 35 NY2d 22; Bruton v United States, 391 US 123; People v Settles, 46 NY2d 154; People v Shortridge, 65 NY2d 309; People v Maerling, 46 NY2d 289; People v Geoghegan, 51 NY2d 45; People v Trice, 101 AD2d 581; People v Brown, 26 NY2d 88; People v Serrano, 15 NY2d 304.)

      Robert M. Morgenthau, District Attorney (Ann M. Donnelly and Norman Barclay of counsel),
    for respondent. James Ruck-er’s plea of guilty was properly admitted as a declaration against penal interest and did not deny defendant his right to confront witnesses against him. (Ohio v Roberts, 448 US 56; California v Green, 399 US 149; Chambers v Mississippi, 410 US 284; People v Settles, 46 NY2d 154; People v Brown, 26 NY2d 88; United States v Winley, 638 F2d 560, 455 US 959; People v Maerling, 46 NY2d 289; People v Green, 75 AD2d 502.)
   OPINION OF THE COURT

Kaye, J.

Statements contained in a plea allocution of a codefendant may, in limited circumstances, be received in evidence as a declaration against penal interest to establish an element of the crime charged against defendant.

After two chain-snatching incidents on 44th Street near Seventh Avenue in Manhattan, defendant and his codefendant (James Rucker) were indicted for robbery and attempted robbery in the second degree. One month later, while incarcerated and awaiting trial, Rucker agreed to plead guilty to attempted robbery in satisfaction of both charges and in consideration of a promise of a deferred sentence and probation. In his plea allocution, Rucker described how both crimes were accomplished, including the fact that he had held the victims while defendant took their chains. His plea was accepted and he was paroled pending sentence.

At defendant’s trial six months later, Barry Stelboum, Carolyn Berk and Steven Levy, three high school students, testified that they had come into Manhattan to attend a matinee, and were walking on 44th Street near Seventh Avenue when a tall man stopped Stelboum, stepped on his foot, and pulled a gold chain from his neck. Both Levy and Berk (who identified defendant as the tall man) testified that during the incident they observed a second, shorter man standing behind Stelboum; after defendant took Stelboum’s chain, he walked past them and the shorter man followed. Berk testified that she stopped to call the police, and then watched defendant and the shorter man approach another individual. Again she saw the shorter man stand behind the victim with arms extended while defendant grabbed the chain from his neck. The second victim, however, shouted at defendant, punched him in the face, reclaimed his chain and ran away. Berk saw defendant and the shorter man walk away, talking together as they went. She pointed defendant out to the police, who arrested him at the scene. Neither Stelboum nor Levy observed the second incident.

After telling the court he would not testify against defendant, Rucker at a hearing outside the presence of the jury refused to answer any questions and asserted his Fifth Amendment privilege. The People then moved to have him declared unavailable and his plea allocution admitted as a declaration against penal interest in order to establish an element of second degree robbery — that defendant was "aided by another person actually present” (Penal Law §§ 110.00, 160.10 [1]). Over defense objection, the trial court declared Rucker unavailable and admitted the portion of the allocution recounting that he held two individuals as "another person” (deleting defendant’s name) took the chains from their necks. Immediately after that testimony was read into the record, and again in its charge, the court instructed the jury that Rucker’s statements were to be considered solely with respect to the issue whether more than one person participated in the crime, and not as evidence of defendant’s identification. A stipulation between counsel was read to the jury to the effect that Rucker’s counsel had, prior to the plea, advised him of the consequences of pleading guilty — both the loss of rights and future risks, and the fact that if he were tried and convicted he would be subject to a substantial mandatory prison sentence. Additionally, defense counsel argued in summation that Rucker’s statements should be discredited because of his favorable plea bargain. Defendant was convicted of robbery in the second degree, and the Appellate Division affirmed, without opinion.

Rucker’s statements constituted hearsay evidence, as they were made out of court and offered for the truth of the matter asserted. Accordingly, the testimony was admissible only if the People demonstrated that it fell within an exception to the hearsay rule (People v Nieves, 67 NY2d 125, 131). The People contend that Rucker’s statements were admissible as a declaration against penal interest.

Hearsay evidence is admissible as a declaration against penal interest only if four prerequisites are met: (1) the declarant must be unavailable to give testimony, whether by reason of absence from the jurisdiction, refusal to testify on constitutional grounds or death; (2) the declarant must have been aware at the time of its making that the statement was contrary to his penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability (People v Shortridge, 65 NY2d 309, 312; People v Settles, 46 NY2d 154, 167; see also, Proposed New York Code of Evidence § 804 [b] [4]; Fed Rules Evidence, rule 804 [b] [3]). Defendant does not dispute Rucker’s unavailability or his knowledge of the underlying facts. Thus, we must consider whether the People have demonstrated that in the plea allocution Rucker was aware that his statements were contrary to his penal interest —the second element of the test — and whether there was sufficient independent evidence of the statement’s reliability— the fourth element. These two prerequisites in particular involve a "delicate balance of diverse factors * * * entrusted to the sound judgment of the trial court, which is aptly suited to weigh the circumstances surrounding the declaration and the evidence used to bolster its reliability” (People v Settles, 46 NY2d, at p 169, supra).

The hearsay exception for declarations against penal interest was first accepted in this State in 1970 (see, People v Brown, 26 NY2d 88 [statement exculpating accused]), and ever since has been embraced cautiously. While conceptually we have recognized that declarations against penal interest can be admitted against an accused — admissions of guilt may in fact be "among the most disserving of declarations” (People v Maerling, 46 NY2d 289, 297) — inculpatory declarations of witnesses unavailable for cross-examination are subject to even more exacting scrutiny than others. The interest compromised must be of sufficient magnitude or consequence to the declarant to all but rule out any motive to falsify; within practical limitations, only the portion of the statement opposed to declarant’s interest should be admitted; and defendant should be allowed to prove, if possible, that compliance with the criteria for admissibility was illusory (id.; Richardson, Evidence § 260 [Prince 10th ed, 1972-1985 Supp]; see also, People v Geoghegan, 51 NY2d 45, 49, where we determined that a custodial confession was inadmissible because these assurances of probative value were not present, and additionally because the confession "was not restricted to self-inculpatian, but as well inculpated defendant”).

Not all plea allocutions, or statements contained in plea allocutions, meet these criteria for admission as declarations against penal interest. As a category, therefore, statements in plea allocutions are neither admissible nor inadmissible as declarations against penal interest.

On one level, a declarant by pleading guilty to a felony is plainly acting contrary to his or her penal interest. The potentially serious consequences of a plea of guilty render it unlikely that a declarant would admit guilt if untrue. Having due regard for the process and its significance, we simply cannot accept defendant’s cynical assertion that, in an admission of guilt sworn to in open court, a declarant will say anything necessary for a favorable plea bargain. By pleading guilty to a felony a declarant faces immediate conviction and sentence, establishes a criminal record, and risks enhanced punishment for future crimes. Moreover, the process itself insures that these abstract consequences are necessarily in the declarant’s mind at the very moment the plea is taken, as demonstrated here by Rucker’s plea to attempted robbery in the second degree, a violent felony and apparently his first conviction of a crime. The allocution took place before a Judge in open court. Rucker was under oath, represented by counsel, advised by the court of the forfeiture of his right to trial as well as his right to remain silent, present witnesses and to confront his accusers, and he was told the immediate and future consequences of his plea. The jury was informed that prior to the plea Rucker’s attorney had counseled him that, by becoming a convicted felon he would lose many rights and subject himself to an automatic prison sentence if convicted of a felony in the future, and also that a sentence of probation would subject him to the supervision of the Department of Probation for five years and risk of incarceration for any violation. Viewed from this perspective, "[i]t is hard to conceive of any admission more incriminating to the maker or surrounded by more safeguards of trustworthiness than a plea of guilty” (United States v Winley, 638 F2d 560, 562, cert denied 455 US 959).

But on another level, it is equally plain that a declarant would rarely consent to a plea bargain if it did not in some sense also serve his or her penal interest. And while the presence of the Judge, the oath and the significance of pleading guilty are important differences from custodial confessions, we recognize that a desire to curry favor with the prosecution could also inhere in plea allocutions. Because this dual interest exists, the particular statements in plea allocutions claimed to be admissible as declarations against penal interest must be examined in the context of each case.

Here, the trial court acted within its sound discretion in receiving Rucker’s statements, made in his plea allocution, to establish an element of the crime charged against defendant, because of the nature of those statements, because no facts were adduced to indicate a lack of reliability of those statements in the circumstances, because there was evidence independent of the statements that pointed to their truth, and because the procedures followed mitigated any prejudice to defendant.

By its nature, the testimony that he held the victims was wholly disserving to Rucker and directly contrary to his penal interest. This statement did not in any way seek to minimize Rucker’s own culpability by maximizing defendant’s or by shifting blame to defendant. Moreover, there is no indication from the statements or other evidence — and no evidence was disallowed on this point — that Rucker exaggerated his own participation for the purpose of increasing defendant’s criminal liability or had any motive to do so. It was hardly apparent that by describing his own role in the crimes Rucker would thereby escalate defendant’s liability. True, a prosecutor might influence a codefendant to exaggerate his own conduct for such a purpose, but there is no evidentiary basis for such speculation here. Indeed, Rucker’s refusal to testify against defendant belies any willingness or prearrangement to assist the People in convicting defendant.

In these circumstances, the court properly concluded that the second prerequisite of the four-part test was satisfied: Rucker must have been aware at the time of his plea allocution that statements regarding his own participation in the crime were contrary to his penal interest, and here that interest all but ruled out any theoretical motive to falsely implicate defendant.

We next reach the fourth prerequisite, which we have recognized as the most important inquiry (People v Settles, 46 NY2d, at p 167, supra): whether circumstances independent of the hearsay declaration itself are present which fairly tend to support the assertions made and thereby assure their trustworthiness and reliability. The trustworthiness of Rucker’s statement was corroborated by competent evidence independent of the declaration (People v Settles, 46 NY2d, at pp 168-169, supra). Three eyewitnesses testified regarding the occurrence of the crime and how it proceeded, two of them recounted the presence of a second man, and one of those eyewitnesses observed the same two men (one of them the defendant) in similar roles in both incidents. "Supportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true.” (People v Settles, 46 NY2d, at pp 169-170, supra.) That level was surpassed here.

Finally, in applying the exacting scrutiny necessary when hearsay statements are used against a defendant, we note that the conditions surrounding Rucker’s statements were fully disclosed to the jury, only a portion of the plea allocution was read, the portion itself was redacted and defendant’s name eliminated, and the jury was twice instructed that the testimony was not to be considered as evidence of defendant’s identification. These procedures mitigated any prejudice to defendant.

Having concluded that all prerequisites for receiving this hearsay evidence were satisfied, we proceed to defendant’s constitutional claims. While we recognize that the standards for determining hearsay exceptions and confrontation claims are not identical (see, People v Salko, 47 NY2d 230, 241), in the present case the considerations that rendered Rucker’s statement admissible as a hearsay exception also established that there was no violation of defendant’s constitutional rights (see, Ohio v Roberts, 448 US 56, 66; Chambers v Mississippi, 410 US 284, 298-299; Dutton v Evans, 400 US 74, 89). The stringent standards applied assure the degree of reliability and probative value necessary to substitute for defendant’s loss of the opportunity to cross-examine Rucker. Any presumption of unreliability attached to an accomplice’s confession implicating a defendant (see, Lee v Illinois, 476 US —, 106 S Ct 2056) was overcome by the facts here, including the nature of Rucker’s statement, the circumstances under which it was given, its purpose and necessity, the independent evidence pointing to its truthfulness, and the procedural safeguards implemented to minimize any prejudice to defendant.

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

Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr., concur.

Order affirmed.

      . While defendant below challenged the statements as not sufficiently redacted, here the issue is limited to whether admission of the statements violated State evidentiary law and denied defendant his constitutional confrontation and due process rights (NY Const, art I, §6; US Const 6th, 14th Amends).

      . Similarly, the materiality of the evidence is not in issue. The eyewitness testimony on the issue whether defendant was "aided by another person actually present” was, as the trial court noted, somewhat vague and uncertain; Rucker’s testimony was necessary, at the least, to "clarif[y]” their testimony regarding the involvement of a second person (117 Misc 2d 1011, 1014).


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Robert Hollman, Appellant.
    Argued September 3, 1986;
    decided October 21, 1986

      POINTS OF COUNSEL

      Eleanor Fink for appellant.
    I. Penal Law § 245.01 (exposure of a person) unconstitutionally deprives appellant and other Naturists of primary right to freedom of expression by banning social nudism from all public recreational space. (Spence v Washington, 418 US 405; Tinker v Des Moines School Dist., 393 US 503; Cohen v California, 403 US 15; Police Dept. of Chicago v Mosley, 408 US 92; Erznoznik v City of Jacksonville, 422 US 205; Matter of Excelsior Pictures Corp. v Regents of Univ., 3 NY2d 237; People v Burke, 267 NY 571; People v Hardy, 77 Misc 2d 1092; People v Gilbert, 72 Misc 2d 75.) II. Penal Law § 245.01 is excessively overbroad and unconstitutionally abridges political speech, education, scientific research and artistic creation. (Doran v Salem Inn, 422 US 922; Collin v Smith, 447 F Supp 676; Matter of TJPC Rest. Corp. v State Liq. Auth., 61 AD2d 441, 48 NY2d 884; People v Nixon, 88 Misc 2d 913.) III. Penal Law § 245.01 violates protected personal liberty rights to physical freedom, control over the upbringing and education of children, and control of personal appearance. (Ingraham v Wright, 430 US 651; Board of Regents v Roth, 408 US 564; Doe v Bolton, 410 US 179; O’Connor v Donaldson, 422 US 563; Pierce v Society of Sisters, 268 US 510; Meyer v Nebraska, 262 US 390; Roe v Wade, 410 US 113; Griswold v Connecticut, 381 US 479; Chapin v Town of Southampton, 457 F Supp 1170; Kent v Dulles, 357 US 116.) IV. So-called justification for restraints of liberty imposed by Penal Law § 245.01 offend Federal and State due process requirements. (Bellanca v New York State Liq. Auth., 54 NY2d 228; McMinn v Town of Oyster Bay, 105 AD2d 46; People v Price, 33 NY2d 831; People v Uplinger, 58 NY2d 936; Cohen v California, 403 US 15; Matter of Excelsior Pictures Corp. v Regents of Univ., 3 NY2d 237; Erznoznik v City of Jacksonville, 422 US 205; People v Burke, 243 App Div 83, 267 NY 571; People v Hardy, 77 Misc 2d 1092.)

      John J. Santucci, District Attorney (Beverly Kalman of counsel), for respondent.
    The State statute prohibiting public nudity is constitutionally valid on its face and as applied. (South Fla. Free Beaches v City of Miami, 734 F2d 608; Chapin v Town of Southampton, 457 F Supp 1170; United States v Hymans, 463 F2d 615; Street v New York, 394 US 576; United States v O’Brien, 391 US 367; Bellanca v New York State Liq. Auth., 54 NY2d 228; Erznoznik v City of Jacksonville, 422 US 205; Roth v United States, 354 US 476; Schenck

      v United States, 249 US 47; Consolidated Edison Co. v Public Serv. Commn., 447 US 530.)
   OPINION OF THE COURT

Titone, J.

Defendant was twice arrested and charged under Penal Law § 245.01 (unlawful exposure) for sunbathing nude on the beach at Riis Park, Bay 1, in Queens County. He contests his ensuing convictions on several constitutional grounds: violation of his right to freedom of expression, the statute’s over-breadth, and deprivation of a fundamental right. We conclude that defendant’s Federal and State constitutional rights have not been violated.

I

Over a period of years, Riis Park, Bay 1, had informally come to be known as a "clothes optional” beach. The police had received numerous complaints of nudism from local residents, civic associations, elected officials and visitors to the beach. One of defendant’s arrests occurred after a police officer viewed him through binoculars from a nearby nursing home. The other arrest occurred when an officer arrived on the beach to investigate an unrelated complaint. At the time of each arrest, defendant was sunbathing without clothes in the company of his wife and two small children.

Defendant’s motion to dismiss the charges asserted his belief in the Naturist philosophy that open social nudity promotes health, that it permits heightened awareness of human similarity and vulnerability and that it presents an alternative to the repression of puritanism and the degradatian of pornography. He argued that the application of Penal Law § 245.01 to his conduct improperly denied him his State and Federal constitutional rights to free expression (US Const 1st Amend; NY Const, art I, § 8), that Penal Law § 245.01 was overbroad, and that he was denied fundamental liberty and privacy rights. Criminal Court denied the motion.

After a Bench trial, defendant was convicted of two violations of Penal Law § 245.01. Appellate Term affirmed, concluding that defendant’s conduct did not fall within any cognizable constitutional protection. We agree.

II

Initially, defendant urges that his nudity, in the context of its location and his beliefs, constituted symbolic expression and, thus, was entitled to protection. For two reasons, this argument must fail. First, defendant’s conduct did not rise to the level of communication necessary to invoke constitutional protection. Second, even if defendant’s actions were expressive, the State had the power to regulate such expression by prohibiting the public display of nudity.

A

Certainly it is beyond dispute that expressive conduct, in addition to pure speech, is entitled to the protective shield of the First Amendment (Nimmer, Meaning of Symbolic Speech Under the First Amendment, 21 UCLA L Rev 29, 30). " 'If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in * * * matters of opinion’ ” (Street v New York, 394 US 576, 593, quoting Board of Educ. v Barnette, 319 US 624, 641-642). Thus, the Supreme Court has invoked the First Amendment to protect symbolic speech such as refusing to salute the American flag (Board of Educ. v Barnette, supra), wearing a black arm band in the context of a Viet Nam war protest (Tinker v Des Moines School Dist., 393 US 503) and displaying a peace symbol on a privately owned flag (Spence v Washington, 418 US 405).

That particular forms of conduct have been deemed expressive and thus entitled to protections akin to those afforded speech, however, does not imply that all conduct intended to convey a message is expressive (United States v O’Brien, 391 US 367, 376; Nimmer, Meaning of Symbolic Speech Under the First Amendment, 21 UCLA L Rev 29, 36). To be characterized as expressive, the conduct must be intended to convey a particularized message and there must be a great likelihood that, given the surrounding circumstances, the message would be understood by those who viewed it (Clark v Community for Creative Non-Violence, 468 US 288, 294; Spence v Washington, supra, pp 410-411). In Spence, for example, the defendant, upset by the shootings at Kent State and the country’s invasion of Cambodia, displayed an American flag with a peace symbol superimposed upon it. The court held such conduct to be protected, noting that the defendant had displayed the flag in "the manner in which flags have always been used to convey ideas” (Spence v Washington, supra, p 415). By way of contrast, the Supreme Court has noted that conduct that is ordinarily nonexpressive, such as gambling, setting off fireworks or urinating in public, may be regulated "regardless of the situs,” even though the actor’s intention may have been expressive (Clark v Community for Creative Non-Violence, supra, p 298, n 7).

Defendant’s conduct in this case clearly falls within the latter category. While there may be contexts in which a public display of nudity would reasonably be understood as a means of communicating an idea, it cannot be said that nude sunbathing on a beach is a form of expression likely to be understood by the viewer as an attempt to convey a particular point of view. Although defendant apparently has a specific philosophy regarding nudism, his mere nude appearance did not create a great likelihood that his philosophy would be imparted to the public. Rather, the likely message to viewers was that defendant, like many others on the beach, had doffed his clothing to enhance his comfort, acquire an even tan or simply display his body to others. Such conduct cannot be considered sufficiently expressive to invoke the protections of the First Amendment and article I, § 8 of the New York State Constitution merely because its setting was a beach where nudity is commonplace.

B

Even were we to assume that defendant’s conduct was expressive, the State’s ability to regulate it or even prohibit it would not be automatically foreclosed. It is clear that the First Amendment does not guarantee the right to declare one’s opinion in any place, at any time and in any manner (e.g., Heffron v International Socy. for Krishna Consciousness, 452 US 640, 647; Erznoznik v City of Jacksonville, 422 US 205, 209; Matter of von Wiegen, 63 NY2d 163, 171, cert denied 472 US 1007; People v Bakolas, 59 NY2d 51). Thus, conduct may be regulated, or even prohibited, "if [the regulation] is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest” (United States v O’Brien, 391 US 367, 377, supra; see, Clark v Community for Creative NonViolence, 468 US 288, 297-299, supra; Heffron v International Socy. for Krishna Consciousness, supra, pp 647-648, quoting Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748, 771; Note, Clark v Community for Creative Non-Violence: The Demise of First Amendment Protection for Symbolic Expression% 36 Mercer L Rev 1371, 1397).

Viewed against this standard, Penal Law § 245.01 is unquestionably a permissible regulation as applied to defendant’s conduct, even if it did incidentally impinge upon his chosen form of self-expression. First, prohibiting public nudity is plainly within the State’s police powers. Second, the statute is not aimed at suppressing the expression of opinion concerning nudity; instead, it neutrally prohibits all public displays of nudity regardless of the actor’s purpose.

Third, the statute furthers an important governmental objective. Riis Park is a public beach dedicated to the recreation of the public, including New York families. Congress, in its wisdom, set aside all of Riis Park for that purpose. The effect of the nude sunbathers’ repeated appearance at Bay 1 was to foreclose its use by others. The Legislature saw fit to remedy the possible crowding of surrounding beaches by prohibiting nudity altogether. There is clearly an important governmental interest in providing recreational space for the citizens of this State. Moreover, the State clearly has an interest in preserving the character of Riis Park for its intended use (see, Clark v Community for Creative Non-Violence, supra) and preventing uses antithetical to its essential nature (see, Grayned v City of Rockford, 408 US 104, 116)._

Finally, Penal Law § 245.01, as applied, is as narrow as it can be in order to fulfill its governmental objective. Significantly, the statute prohibits only public nudity and does not impair defendant’s right to advocate Naturism by some other means. And, while it may be argued that the shock of nudity was the most effective method of conveying defendant’s philosophy, no one is guaranteed a right to what he considers to be the best of all means of expression, as long as the freedom to express an idea is protected (see, e.g., Kovacs v Cooper, 336 US 77 [statute banning the use of sound trucks upheld where other means of publicity available]).

¡II

Defendant’s next contention is that Penal Law § 245.01 is overbroad in that it prohibits clearly protected activity such as nude modeling for an art class or classroom demonstrations involving human genitalia (see, Penal Law § 240.00 [1] [defining "public place” to include schools]). Thus, he argues, he may challenge the constitutionality of the statute on its face even if his conduct did not fall within the class of protected activities. This claim, too, must fail, as any arguable over-breadth of this statute is insubstantial.

As a general rule, a defendant cannot challenge the constitutionality of a statute on the ground that its application to others could impair their constitutional rights. An exception to this rule exists in instances where the statute’s facial ability to reach protected conduct is so broad that its continued application may chill the lawful exercise of citizens’ right to freedom of speech (Secretary of State of Md. v Munson Co., 467 US 947, 956-957; Dombrowski v Pfister, 380 US 479, 486; Thornhill v Alabama, 310 US 88, 97-98; 3 Rotunda, Nowak and Young, Constitutional Law — Substance and Procedure § 20.8).

This exception is applied, however, only when the statute’s unconstitutional reach is substantial and the statute is incapable of a reasonable limiting construction (Erznoznik v City of Jacksonville, 422 US 205, 216, supra; Broadrick v Oklahoma, 413 US 601). As the Broadrick court noted (p 615), "Although * * * laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe”. Indeed, while it may be true that the expression of overly cautious citizens preferring to stay far away from the reaches of the law may be chilled by even the most carefully drawn statute, few of our criminal statutes would survive judicial scrutiny if they could be stricken because of a remote possibility that they might, as applied to an unusual set of facts, reach protected conduct (Note, First Amendment Overbreadth Doctrine, 83 Harv L Rev 844, 859, n 61).

There may be occasion when constitutionally protected activity will be reached because of the broad range of the statute prohibiting public nudity (see, Penal Law § 240.00 [1]). However, the requirement that overbreadth be substantial is properly used to save a statute which may reach some protected conduct while prohibiting a whole range of easily identifiable and constitutionally proscribable conduct (Secretary of State of Md. v Munson Co., 467 US 947, 964-966, supra; New York v Ferber, 458 US 747, 772; United States Civ. Serv. Commn. v Letter Carriers, 413 US 548, 580-581). Where, as here, the impermissible applications of a statute represent only a tiny fraction of the conduct within the statute’s reach, the overbreadth will not be considered substantial (New York v Ferber, supra, p 773). Moreover, the aspects of the statute that reach arguably protected conduct may readily be severed from those that are aimed at constitutionally proscribable conduct such as defendant’s. Hence, defendant cannot rely on the statute’s potentially unconstitutional reach as a basis for challenging his own conviction.

IV

Finally, defendant makes various claims that suggest he is asserting a fundamental right to appear nude in public. There is, however, no such fundamental right.

In Meyer v Nebraska (262 US 390, 399), the Supreme Court described the nature of rights encompassed by the Fourteenth Amendment liberty guarantee, stating "[wjithout doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized * * * as essential to the orderly pursuit of happiness by free men.” The fundamental rights implicit in the Fourteenth Amendment have been expanded since Meyer was written (see, e.g., Roe v Wade, 410 US 113; Shapiro v Thompson, 394 US 618), but no court has gone so far as to suggest that that Amendment guarantees the unbridled right to conduct oneself in public in any manner regardless of how offensive it may be (cf. People v Onofre, 51 NY2d 476, 489 [distinguishing between public and private morality]). Since it cannot seriously be argued that public displays of nudity are essential to an ordered system of liberty, we decline to recognize such conduct as within our citizens’ fundamental rights.

Accordingly, defendant’s constitutional rights were not violated by his conviction under Penal Law § 245.01, and the order of the Appellate Term should be affirmed.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Hancock, Jr., concur.

Order affirmed.

      . Penal Law §245.01 states: "A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed. For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola. This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment”.

      . While case law indicates that greater free speech protections may be available pursuant to NY Constitution, article I, §8, than from the First Amendment (PruneYard Shopping Center v Robins, 447 US 74; SHAD Alliance v Smith Haven Mall, 66 NY2d 496, 500; People v Ferber, 57 NY2d 256; Bellanca v State Liq. Auth., 54 NY2d 228, cert denied 456 US 1006), the conduct involved here is not entitled to that greater protection (see, People v Ferber, supra, p 259).

      . In concluding that the State’s interest in this case is important enough to justify incidental limitations of expression, we do not reach the issue of whether mere esthetics are a substantial enough governmental objective to allow interference with speech under NY Constitution, article I, § 8 (see, City Council v Taxpayers for Vincent, 446 US 789).


author: Alexander, J.

text:
    Robert M. Morgenthau, as District Attorney of New York County, Appellant, v Citisource, Inc., et al, Respondents, et al., Defendants.
    Argued September 4, 1986;
    decided October 16, 1986

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Mark Dwyer, Joyce P. Adolfsen, Steven Chananie and Lisa Feiner of counsel), for appellant.
    I. Defendants Kaplan and Friedman are being sued as "criminal defendants” for a money judgment, and under the express terms of CPLR article 13-A provisional remedies are available before their criminal convictions to prevent dissipation of assets which may be used to satisfy that money judgment. II. Attachment was properly granted. (District Attorney of Queens County v McAuliffe, 129 Misc 2d 416.) III. The attachments did not violate defendants’ rights to due process or counsel. (United States ex rel. Ferenc v Brierley, 320 F Supp 406; In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 [Siméis], 605 F Supp 839, 767 F2d 26.) IV. The assets of the Desu trust were properly restrained because an exception to ERISA’s anti-alienation provision exists under the circumstances of this case. Alternatively, the case should be remanded for a hearing to determine whether the trust is a qualified ERISA trust. (General Motors Corp. v Buha, 623 F2d 455; Northwest Airlines v Roemer, 603 F Supp 7; Helmsley-Spear, Inc. v Winter, 74 AD2d 195, 52 NY2d 984; Ellis Natl. Bank v Irving Trust Co., 786 F2d 466; Vink v SHV N. Am. Holding Corp., 549 F Supp 268; St. Paul Fire & Mar. Ins. Co. v Cox, 752 F2d 550; American Tel. & Tel. Co. v Merry, 592 F2d 118; Fidelity Fed. Sav. & Loan Assn. v De La Cuesta, 458 US 141; Hines v Davidowitz, 312 US 52.)

      Charles G. Moerdler, Burton N. Lipshie and Edward Tessler for respondents.
    I. The court below properly vacated the attachments of the personal assets of respondents; respondents have not been convicted of a crime, and no personal judgment or attachment of personal assets is now permissible. (Dillon v

      Neira, 130 Misc 2d 434; Mitchell & Morgan v Schneebalg, 11 AD2d 646; Farley v Overbury, 252 App Div 882; Georgis v Giocalas, 225 App Div 577; Valentine Dolls v McMillan, 25 Misc 2d 551; Boyd v United States, 116 US 616; Sniadach v Family Fin. Corp., 395 US 337; Fuentes v Shevin, 407 US 67; North Ga. Finishing v Di-Chem, Inc., 419 US 601; Goldberg v Kelly, 397 US 254.) II. The court below correctly vacated the restraint on the Desu retirement trust; as a qualified ERISA plan, the Desu trust is exempt from restraint. (Fordyce v Fordyce, 80 Misc 2d 909; Gálbreath-Ruffin Corp. v 40th & 3rd Corp., 25 AD2d 114, 19 NY2d 354; Filis Natl. Bank v Irving Trust Co., 786 F2d 466; Helmsley-Spear, Inc. v Winter, 52 NY2d 984; United States v One Assortment of 89 Firearms, 465 US 354.)
   OPINION OF THE COURT

Alexander, J.

In this, the first case to reach this court involving the recently enacted CPLR article 13-A, we are called upon to determine the reach of an action relating to “post-conviction forfeiture crimes” (CPLR 1311) and the extent to which provisional remedies are available against the assets of an individual who has been indicted but not convicted of a “post-convietian forfeiture crime” (CPLR 1310 [5]), where it is neither claimed nor demonstrated that such assets are "proceeds of a crime”, “substituted proceeds of a crime” or an "instrumentality of a crime” (CPLR 1310 [2], [3], [4]). If we determine that such assets can be reached, we must determine whether the procedural requirements of the statute comport with Federal constitutional due process.

In modifying and vacating the orders of attachment and a preliminary injunction issued by Special Term, a divided Appellate Division determined, as a matter of law, that the only assets of one not yet convicted of a “post-conviction forfeiture crime” that can be reached by provisional remedies are "proceeds of a crime”, “substituted proceeds of a crime” or “an instrumentality of a crime” and in so determining did not consider the factual issues raised on the appeal and cross appeal to that court or the constitutional issues raised by the defendants. The case is before us by leave of the Appellate Division on the certified question: "Was the order of this Court, which modified the order of the Supreme Court, properly made?”

For the reasons that follow, we reverse the order of the Appellate Division and answer the certified question in the negative.

I

Robert M. Morgenthau, the District Attorney of New York County (Morgenthau), as "claiming authority” has commenced this civil forfeiture action pursuant to CPLR article 13-A against Citisource, Inc., as a "non-criminal defendant” (CPLR 1310 [10]) and Marvin B. Kaplan, Stanley Friedman and various others, as "criminal defendants” (CPLR 1310 [9]) seeking to recover $4.49 million as the proceeds of a crime, the substituted proceeds of a crime or a money judgment equivalent in value to the proceeds or the substituted proceeds of a crime. Kaplan, Friedman and others have been indicted for various "post-conviction forfeiture crimes” (CPLR 1310 [9]), including violations of the Donnelly Act (General Business Law § 340), the Martin Act (General Business Law § 352-c [2], [5], [6]) as well as grand larceny (Penal Law § 155.35), bribery (Penal Law § 200.00), bribe receiving (Penal Law § 200.10) and conspiracy (Penal Law § 105.05).

Morgenthau obtained ex parte orders authorizing the attachment of $1,140,300 belonging to Kaplan and $615,000 belonging to Friedman and temporarily restraining the alienation of $400,000 in the "Desu Consulting & Leasing Co. Retirement Trust account”, of which Kaplan is allegedly a beneficiary and the sole trustee. Within the required statutory time, Morgenthau moved to confirm the orders of attachment and for a preliminary injunction to prevent the transfer of the assets of the trust.

Defendants Friedman and Kaplan opposed Morgenthau’s motion and moved to vacate or modify the prior ex parte orders, arguing: (1) that they are "non-criminal defendants” since they have not been convicted of any crimes and as to them the forfeiture statute only authorizes the seizure of proceeds of a crime, substituted proceeds of a crime or the instrumentality of a crime and thus, the attachments and the injunction, which concededly reach assets not shown to be connected to the alleged crimes, were unauthorized; (2) that in any event Morgenthau had not demonstrated that defendants’ assets would otherwise become unavailable; (3) that Morgenthau had not demonstrated the likelihood of success on the merits in the post-conviction forfeiture action; (4) that the Desu trust, which is allegedly an Employee Retirement Security Act (ERISA) trust, is immune from alienation under Federal law; (5) that the attachments had worked substantial hardships on the defendants; and (6) that the criminal forfeiture statute as interpreted by Morgenthau violated various constitutional safeguards. Morgenthau then sought to increase the attachment against Friedman by an additional $135,000 because of an error by Friedman’s bank in its initial report as to the amount attached. In support of his motion to confirm the orders of attachment and for the preliminary injunction, Morgenthau argued that this civil forfeiture action was against putative "criminal defendants” (CPLR 1310 [9]) who were potentially liable for a money judgment in an amount equal to the proceeds of their crimes such that an attachment could be effected on more than just the proceeds of the crime, the substituted proceeds of a crime or the instrumentality of a crime. Additionally, Morgenthau argued that the evidence submitted sustained his burden of proof and satisfied the requirements for the issuance of provisional remedies in that there was a substantial probability of success on the issue of forfeiture, that the failure to enter the orders may result in the proceeds being unavailable and that the need to preserve the property outweighs the hardships to the defendants (CPLR 1312 [3]).

Special Term denied defendants’ motion to vacate or modify the attachments and the injunction and granted Morgenthau’s motion to confirm the attachments but limited them to the amounts of money already levied upon or restrained. Special Term also issued a preliminary injunction restraining any transfer of the assets of the Desu trust, except to permit their "reinvestment in like short-term federal obligations”. The court held that article 13-A authorized Morgenthau to attach any assets of the defendants, not just those that were traceable as proceeds of a crime, the substituted proceeds of a crime or an instrumentality of a crime, because a money judgment could be obtained against defendants if they were eventually convicted of the crimes charged. The court further concluded that Morgenthau had satisfied his burden of establishing the statutorily required factors to authorize the granting of a provisional remedy.

The Appellate Division modified and vacated the orders of attachment and the injunction against the alienation of the assets of the trust. The majority of the court interpreted the statute as not permitting the attachment or restraint of the assets of a defendant who has not been convicted, holding that only those assets of such a defendant that are proceeds of a crime, substituted proceeds of a crime, or an instrumentality of a crime may be attached, implicitly finding that a broader interpretation of the statute, such as that argued by the claiming authority here and adopted by Special Term, would render it constitutionally defective. In view of this determination the court did not review the factual determinations of Supreme Court as to the sufficiency'of the claiming authority’s proof nor did the court address the issue of whether the trust was immune from alienation under Federal law or the denial of Morgenthau’s request to increase the attachment. The case was remanded to Special Term for a hearing to determine, as to Friedman and Kaplan, the extent to which the attachments included proceeds or substituted proceeds of a crime. The dissenting Justice concluded that the. statute explicitly provided for provisional remedies in an action relating to "post-conviction forfeiture crimes” prior to a conviction "to prevent the dissipation of assets that would be subject to the judgment that may be entered in such an action” and that as so interpreted, the statute was neither unconstitutional on its face nor as applied (121 AD2d 353, 354 [Sandier, J., dissenting]).

II

The legislative purpose sought to be achieved through the enactment of CPLR article 13-A was "to take the profit out of crime” (1984 McKinney’s Session Laws of NY, at 3627-3628). To that end, the statute provides for the institution of an action which is civil, remedial and in personam in nature (CPLR 1311 [1]), by a "claiming authority” against a defendont to protect the claims of victims of crimes. As relevant to the issues presented here, the statute provides for actions against two types of defendants: "non-criminal” and "criminal”. In an action against "non-criminal defendants”, defined as "a person, other than a criminal defendant, who possesses an interest in the proceeds of a crime, the substituted proceeds of a crime or in an instrumentality of a crime” (CPLR 1310 [10]), recovery is limited to "the proceeds of a crime, substituted proceeds of a crime or an instrumentality of a crime” (see, CPLR 1311 [1]). An action against "criminal defendants” (CPLR 1310 [9]) however, can result in a judgment recovering "the proceeds of a crime, the substituted proceeds of a crime or an instrumentality of a crime or * * * a money judgment in an amount equivalent in value to the property which constitutes the proceeds of a crime, the substituted proceeds of a crime, or an instrumentality of a crime” (CPLR 1311 [1]; emphasis supplied). A "criminal defendant” (CPLR 1310 [9] [a]) is a person who, as relevant here, has been convicted of a "post-conviction forfeiture crime” defined as any felony found in the Penal Law or any other chapter of the consolidated laws of the State (CPLR 1310 [5]).

The provisional remedies of attachment, injunction, receivership and notice of pendency are available in all actions under article 13-A (see, CPLR 1312). In order for the court to grant a provisional remedy, it must determine that there is a substantial probability that the claiming authority will prevail on the issue of forfeiture, that failure to enter the order may result in the property being destroyed, removed from the jurisdiction of the court or otherwise unavailable for forfeiture and that the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order may operate (CPLR 1312 [3]).

Ill

A

As indicated above, the primary dispute here concerns the reach of an action relating to "post-conviction forfeiture crimes” and the availability of provisional remedies against these defendants. The conclusion of the Appellate Division that the statute does not authorize the pre-conviction seizure of defendants’ assets not traceable to the alleged crimes because they have yet to be convicted of a "post-conviction forfeiture crime”, and limiting the reach of a provisional remedy to the traceable proceeds of a crime, the substituted proceeds of a crime or the instrumentality of a crime, misinterprets the plain language and clear meaning of the statute.

The fact that defendants have not been convicted of the crimes for which they have been indicted does not bar the claiming authority from commencing a forfeiture action against them as putative "criminal defendants”. The statute explicitly provides that an action relating to a post-conviction forfeiture crime "may be commenced, and a court may grant a provisional remedy provided under this article, prior to such conviction” although the "court may not grant forfeiture until such conviction has occurred” (CPLR 1311 [1] [a]; emphasis supplied). Indeed, an action relating to a "post-conviction forfeiture crime” must be dismissed at any time after 60 days of the commencement of the forfeiture action unless there has been a conviction in the underlying criminal action or an indictment is pending (CPLR 1311 [1] [a]; emphasis supplied). Additionally, the statute provides that an action relating to a post-conviction forfeiture crime "shall be stayed during the pendency of a criminal action which is related to it; provided, however, that such stay shall not prevent the granting or continuance of any provisional remedy” (CPLR 1311 [1] [a]). It is clear therefore, that the statute authorizes the commencement of a forfeiture action against putative "criminal defendants” who have been indicted but not convicted although it is equally clear that the court may not grant a forfeiture of the seized assets unless there is a subsequent conviction in the underlying felony prosecution. Were this not the case, and if a post-conviction forfeiture action could proceed only against defendants already convicted of a "post-conviction forfeiture crime”, these provisions of the statute would be meaningless, for there would be no plausible reason for requiring the forfeiture action to be stayed pending the prosecution of the underlying criminal action or for the specific provision authorizing the commencement of the forfeiture action prior to conviction or to require dismissal of the action within 60 days unless there had been a conviction or an indictment had been returned.

It is equally plain that the statutory scheme contemplates the availability of provisional remedies in such an action against a "criminal defendant” to ensure the availability of assets to satisfy a potential judgment. The statute explicitly provides "[Provisional remedies * * * shall be available in all actions to recover property or for a money judgment” (CPLR 1312 [1]; emphasis supplied; see, CPLR 1311 [1] [a]). Attachment is authorized against any debt or property against which a forfeiture judgment may be enforced (CPLR 1313) and if a forfeiture action against a "criminal defendant” is successful, a judgment can reach the proceeds of a crime, the substituted proceeds of a crime, the instrumentality of a crime, or an amount equivalent in value to the property which constitutes the proceeds of a crime, the substituted proceeds of a crime or an instrumentality of a crime (CPLR 1311 [1]). Thus, a provisional remedy in an action against a "criminal defendant” is not limited to assets that can be traced to the alleged crimes but can reach any assets of the defendants that could be used to satisfy a potential judgment in the forfeiture action. Indeed, it would be illogical for the Legislature to authorize the commencement of a forfeiture action prior to conviction but not allow provisional remedies to preserve the status quo during the pendency of the criminal action. A contrary interpretation would contravene the legislative purpose "to take the profit out of crime”.

B

Defendants contend that the interpretation of the statute we have adopted renders it violative of their Federal constitutional right of procedural due process and their right to counsel. We reject these arguments.

Procedural due process recognizes that when the power of the government is to be used against an individual, there is a right to a fair procedure to determine the basis for, and the legality of, such action. There can be no doubt that when a creditor uses government-enforced procedures to prevent the debtor from using his property during the pendency of an action to determine claims to the property, a protected property or liberty interest is implicated and there must be compliance with the Federal constitutional requirement of procedural due process (North Ga. Finishing v Di-Chem, Inc., 419 US 601; Mitchell v Grant Co., 416 US 600; see generally, 2 Rotunda, Nowak and Young, Constitutional Law, Substance and Procedure § 17.9 [b]). We have long recognized that "due process is a flexible constitutional concept calling for such procedural protections as a particular situation may demand” (LaRossa, Axenfeld & Mitchell v Abrams, 62 NY2d 583, 588, citing Morrissey v Brewer, 408 US 471, 481; Health Ins. Assn. v Harnett, 44 NY2d 302, 309) and in determining whether Federal due process standards have been met, we look to the three distinct factors that form the balancing test enunciated by the Supreme Court in Mathews v Eldridge (424 US 319, 335): "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail” (see, People ex rel. Vega v Smith, 66 NY2d 130, 141; Matter of Tammie Z., 66 NY2d 1, 4; LaRossa Axenfeld & Mitchell v Abrams, supra, at p 588; cf. Matter of Sanford v Rockefeller, 35 NY2d 547, 567 [Wachtler, J., dissenting]). Considering these factors in respect to the appeal before us, we conclude that the procedures provided in article 13-A satisfy minimum procedural due process requirements (North Ga. Finishing v Di-Chem, Inc., supra; Mitchell v Grant Co., supra; see, Dillon v Schiavo, 114 AD2d 924; cf. Matter of Horodner v Fisher, 38 NY2d 680).

There can be no question that the interests of both the defendants and the government relative to the grant of a provisional remedy in a forfeiture action are weighty. Imposition of a provisional remedy such as attachment deprives defendants of the ability to use substantial personal assets prior to any determination of their guilt or innocence of crimes charged. The government, on the other hand, has an important interest in deterring criminal conduct, in stripping alleged criminals of their ill-gotten gains and of the financial means to continue their criminal behavior as well as in preserving the assets for use in compensating the victims of the criminal conduct (see, CPLR 1349). Thus, the availability of provisional remedies serves the substantial governmental need of preventing the judicial process from being frustrated by the dissipation of assets that will potentially satisfy a civil judgment.

Finally, to be balanced in the equation is the adequacy of the procedural safeguards to protect defendants from an erroneous deprivation of their property through the imposition of a provisional remedy. Article 13-A, in what appear to be very carefully and comprehensively drawn provisions, establishes an elaborate array of safeguards against such an eventuality. Although the provisional remedy of attachment can initially be granted ex parte, a motion to confirm the attachment must be made, on notice, within five days of the levy (CPLR 1317). A preliminary injunction can only be granted pursuant to a motion on notice although a temporary restraining order can preserve the status quo pending a hearing (CPLR 1333). In each instance, in order for the provisional remedy to issue, the claiming authority must demonstrate that there is a substantial probability that it will prevail on the issue of forfeiture— i.e., a substantial probability that there will be a conviction in the underlying criminal proceeding; that the failure to enter the order granting a provisional remedy may result in proceeds being unavailable in the event of a judgment; and that the need to preserve the property outweighs any hardship on the defendants (CPLR 1312 [3]). The burden of establishing the grounds for the attachment, the need for continuing the levy and the probability of success on the merits is and remains upon the claiming authority (see, CPLR 1317 [2]; 1329 [2]). Where the defendant recovers judgment or succeeds in proving by the preponderance of the evidence that the claiming authority acted without reasonable cause and not in good faith in securing the provisional remedy, the claiming authority is rendered liable for all costs and damages, including attorneys’ fees, sustained by reason of the provisional remedy (see, CPLR 1318 [1]; 1337).

Additionally, the defendant may move at any time to either discharge the attachment (CPLR 1328) or to vacate or modify the attachment (CPLR 1329) and the court may, on its own motion, dismiss the entire action in the interests of justice if it finds such relief warranted by the existence of some compelling factor, consideration or circumstance demonstrating that forfeiture would not serve the ends of justice (CPLR 1311 [4]). In sum, the "statutory procedure effects a constitutional accommodation of the conflicting interests of the parties” (Mitchell v Grant Co., 416 US 600, 607, supra) such that procedural due process is satisfied.

That procedures more protective of the defendants’ interests can be imagined or suggested (see, for e.g., United States v Spilotro, 680 F2d 612 [Racketeer Influenced and Corrupt Organizations Act, 18 USC §§ 1961-1968]; United States v Long, 654 F2d 911 [Continuing Criminal Enterprise Act, 21 USC § 848]; comment, Criminal Forfeiture: Attacking the Economic Dimension of Organized Narcotics Trafficking, 32 Am U L Rev 227, 247-254; Note, Due Process in Preliminary Proceedings under RICO and CCE, 83 Colum L Rev 2068, 2084-2098) does not in any way undermine this conclusion because the statute as written contains sufficient safeguards to minimize the risk of an erroneous deprivation of a defendant’s protected interest and any additional safeguards would not substantially decrease this risk. It is not the role of the courts to rewrite statutes that have been promulgated by the legislative branch of government nor is it our role to comment on the wisdom of the statute (Sniadach v Family Fin. Corp., 395 US 337, 339). In our limited role of deciding whether a statute as drafted satisfies minimum constitutional requirements, we conclude that article 13-A is not violative of Federal procedural due process requirements.

Defendants’ claim that the statute violates their right to counsel is premised on the allegation that because their personal assets are restrained, they cannot afford to hire counsel of their choice. Although a factual scenario may arise where the pre-conviction attachment of a defendant’s assets will infringe the ability to hire chosen counsel (see, United States ex rel. Ferenc v Brierley, 320 F Supp 406; but see, United States v Badalamenti, 614 F Supp 194, 196-198), the statutory scheme of article 13-A adequately addresses this potential problem by expressly requiring the claiming authority to prove that the need for the provisional remedy outweighs the hardship on any party against whom the order may operate (CPLR 1312 [3]). Moreover, the statute allows a defendant to move to vacate or modify the attachment (CPLR 1329) and allows the court, sua sponte, to dismiss the action in the interests of justice upon consideration of "the impact of forfeiture of property upon the person who committed the crime” (CPLR 1311 [4] [d] [i]). Thus, on its face the statutory scheme does not violate the right to counsel.

Because the Appellate Division applied an erroneous rule of law in reaching its determination it did not consider the factual findings of Special Term that Morgenthau had sustained his burden of establishing a substantial probability of success in the post-conviction forfeiture action, that the failure to grant the provisional remedies may result in the property being destroyed, removed from the jurisdiction of the court, or otherwise be unavailable for forfeiture and that the need to preserve the availability of the property through the grant of the provisional remedy outweighs the hardship to these defendants, nor did the court consider the cross appeal to increase the amount of the attachment.

Additionally, although expressing some doubt as to whether the Desu trust, alleged to be an ERISA trust, could be restrained, citing Ellis Natl. Bank v Irving Trust Co. (786 F2d 466; but see, Sasso v Vachris, 66 NY2d 28; American Tel. & Tel. Co. v Merry, 592 F2d 118), the court vacated the injunction because "there is no contention that this trust account had any connection with the alleged crime”, a factor that is irrelevant under this statute as it applies to the circumstances of this case.

For the foregoing reasons, the case should be remitted to the Appellate Division to consider the facts and the issues not reached on the appeal and cross appeal to that court.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Titone and Hancock, Jr., concur.

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

      . "Claiming authority” as here relevant, means the District Attorney having jurisdiction over the offense (CPLR 1310 [11]).

      . Also authorized was an attachment of $5,118,000 against Citisource, Inc., which is alleged to be a "non-criminal defendant” (CPLR 1310 [10]) and an "instrumentality of a crime” (CPLR 1310 [4]). The attachment of the assets of Citisource is not challenged on this appeal.

      . Defendants also argued that the attachment of the assets of Citisource should be modified by allowing the corporation to meet its ordinary business expenses.

      . In regard to Citisource, the court appointed a receiver to manage the affairs of the corporation.

      . The statute also provides for a forfeiture action relating to a "preconviction crime” (CPLR 1311 [1] [b]), defined as a felony found in article 220 or sections 221.30 or 221.55 of the Penal Law (CPLR 1310 [6]).

        . A "criminal defendant” is also defined as a person whom the claiming authority proves by clear and convincing evidence has violated certain provisions of the controlled substance laws (CPLR 1310 [9] [b]).

      . Defendants also argue in their brief to this court that their "right” not to be compelled to put forward defenses before trial, apparently emanating from the Fifth Amendment right against self-incrimination, is violated by the statutory scheme. This argument was not raised at nisi prius and is therefore not preserved for our review.


text:
    In the Matter of Abraham Goldfinger, Respondent, v Leo Lisker, Appellant.
    Argued September 9, 1986;
    decided October 21, 1986

      POINTS OF COUNSEL

      J. Michael Gottesman for appellant.
    I. The ex parte communication between Weinman and Goldfinger requires that the award be vacated. (Matter of Fletcher, 237 NY 440; Fudickar v Guardian Mut. Life Ins. Co., 62 NY 392; Matter of Katz [Uvegi], 18 Misc 2d 576, 11 AD2d 773; Omaha v Omaha Water Co., 218 US 180; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; Berizzi Co. v Krausz, 239 NY 315; Matter of Horowitz v Kaplan, 248 NY 547; Matter of Fischer [Queens Tel. Secretary], 106 AD2d 314; Matter of 290 Park Ave. [Fergus Motors], 275 App Div 565; Matter of National Bank of Republic v Darragh, 30 Hun 29, 93 NY 654.) II. Ex parte communications by the arbitrators with third parties require that the award be set aside. (Matter of Fischer [Queens Tel. Secretary], 106 AD2d 314; Berizzi Co. v Krausz, 239 NY 315; Matter of 290 Park Ave. [Fergus Motors], 275 App Div 565; Matter of Snaider [Mano Hoffner Fur Corp.], 269 App Div 271; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60.) III. The arbitrators’ refusal to allow Lisker to transcribe the proceedings requires that the award be vacated. (Matter of Anderson Trading Co. v Brimberg, 119 Misc 784.) IV. The arbitrators’ refusal to hear witnesses and evidence requires that the award be set aside. (Coraci v Yurkin, 12 Misc 2d 619; Kelly v St. Michael’s R. C. Church, 148 App Div 767; Ward v Davega City Radio, 163 Misc 335; Gross v O’Connor, 74 AD2d 633; Matter of Ahern v South Buffalo Ry. Co., 303 NY 545; Van

      Cortlandt v Underhill, 17 Johns 405; Gervant v New England Fire Ins. Co., 306 NY 393; Fudickar v Guardian Mut. Life Ins. Co., 62 NY 392; Halstead v Seaman, 82 NY 27.) V. The submission agreement required that the arbitrators correctly apply the New York Statute of Limitations. VI. Bias of the arbitrators and the DDC is independent ground for vacating the award.

      Allen P. Rosiny for respondent.
    I. The conversation between Weinman and respondent is not a basis for vacatur. (Alpert v 28 Williams St. Corp., 63 NY2d 557; Matter of Lentle v Egan, 61 NY2d 874; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456; Matter of Helen Whiting, Inc. [Trojan Textile Corp.], 307 NY 360; United States v Trenton Potteries, 273 US 392; Berizzi Co. v Krausz, 239 NY 315; Matter of Katz [Uvegi], 18 Misc 2d 576, 11 AD2d 773; Matter of Signet Constr. Corp. v Goldin, 99 AD2d 431; Thermasol, Ltd. v Dreiske, 78 AD2d 838, 52 NY2d 1069, 454 US 826; Matter of Murray Walter, Inc. [Laborers Inti. Union], 54 AD2d 1055.) II. The award may not be vacated by reason of alleged ex parte communications between the arbitrators and third parties. (Korein v Rabin, 29 AD2d 351; Matter of Spring Cotton Mills [Buster Boy Suit Co.], 275 App Div 196, 300 NY 586.) III. The arbitrators’ refusal to permit the proceedings to be transcribed does not afford a basis for vacatur. (Matter of Shapiro [Gordon], 197 Misc 241, 277 App Div 927; Matter of Anderson Trading Co. v Brimberg, 119 Misc 784; Bernhardt v Polygraphic Co., 350 US 198; Matter of Real [Healy N. Y. Corp.] 54 AD2d 1039; Matter of Willard Alexander, Inc. [Glosser] 31 NY2d 270.) IV. Appellant’s exclusion of witnesses argument is baseless. (Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482; People v Maney, 37 NY2d 229; Garrity v Lyle Stuart, Inc., 40 NY2d 354; Matter of Siegel [Lewis] 40 NY2d 687; Matter of Silver-man [Benmor Coats] 61 NY2d 299; Matter of Asiatic Petroleum Corp. [New England Petroleum Corp.] 65 AD2d 708.) V. Appellant’s Statute of Limitations argument is frivolous. (Matter of Associated Teachers v Board of Educ., 33 NY2d 229; Matter of Schine Enters. [Real Estate Portfolio] 26 NY2d 799.) VI. The arbitrators were not biased.
   OPINION OF THE COURT

Alexander, J.

In the circumstances of this case, the private communication between the arbitrator and one party-litigant, which related to the credibility of the party-litigant and the validity of the amount in dispute, and occurred without the knowledge or consent of the other party-litigant, constitutes misconduct sufficient to warrant vacating the arbitration award (CPLR 7511 [b] [1] [i]).

I.

In 1981, Abraham Goldfinger and Leo Lisker, both members of a trade organization called the Diamond Dealers Club (DDC), became embroiled in a controversy involving diamond transactions. Pursuant to the DDC bylaws, both agreed to submit their dispute to a three-member panel of DDC arbitrators, and the matter proceeded to arbitration in accordance with the DDC bylaws and CPLR article 75. Goldfinger claimed that Lisker owed him $500,000 as the result of a joint venture, while Lisker denied the existence of any such partnership or obligation. After a hearing spanning five months, the arbitrators awarded Goldfinger $162,976. Thereafter, Goldfinger commenced this proceeding in Supreme Court to confirm the award (CPLR 7510); Lisker cross-moved to vacate, alleging various instances of arbitrator misconduct. By order, affirmed on appeal (Matter of Goldfinger, 92 AD2d 756), Special Term referred the matter to a Referee, who, after a hearing on the allegations of misconduct, recommended that the motion to confirm be granted and the cross motion to vacate be denied, concluding that Lisker had failed to sustain his burden of proving misconduct by clear and convincing evidence. Special Term adopted the Referee’s findings and conclusions and confirmed the arbitration award. The Appellate Division affirmed (Matter of Goldfinger v Lisker, 111 AD2d 602), and the matter is before us by leave of this court (67 NY2d 601). For the reasons that follow, we now reverse.

The Referee found that the arbitrators had engaged in several private communications, two of which — one involving Weinman, the chairman of the arbitration panel, and Horowitz, a third party, and another involving Weinman and Goldfinger, a party to the proceeding — we deem critical. Horowitz was a member of the DDC and one of Lisker’s business associates, but also was known to Goldfinger. The Referee found that during the pendency of the arbitration, Horowitz and Goldfinger engaged in a conversation in which Goldfinger, referring to Lisker, stated "he could have settled it for $70,000 * * * now it will cost him three times the amount”, and that Horowitz subsequently repeated these statements to Weinman, who called one of his fellow arbitrators to relay the story. Both arbitrators, without consulting the third on the panel, decided that Horowitz would not have to testify at the arbitration to his conversation with Goldfinger because the panel had already heard testimony concerning the settlement disputes and Horowitz’s testimony would be cumulative.

Thereafter, Weinman, on his own initiative, and without the knowledge or consent of Lisker or the other arbitrators, engaged Goldfinger in conversation in an attempt "to force Mr. Goldfinger to break down and change his story”, and "to break Goldfinger down from his original claim” of $500,000, on the assumption that if Goldfinger in fact had refused a $70,000 settlement offer from Lisker, then Goldfinger would not "break down”. According to Weinman, Goldfinger remained steadfast, handling himself in Weinman’s words "to my satisfaction”. The Referee concluded that the communications between Weinman, Horowitz and Goldfinger, although they concerned the pendency of the hearing, did not concern the subject matter of the underlying dispute and therefore did not rise to the level of misconduct.

Lisker argues that Weinman pursued a private conversation with Goldfinger in part to test Goldfinger’s credibility and in part to evaluate the amount of Goldfinger’s claim in view of the conflicting evidence about who offered to settle the case with whom. Lisker maintains that the Referee erred in concluding that credibility of a party is not central to the su]bstance of the dispute, arguing that when an arbitrator privately discusses a case with a litigant, the prejudice stems as much from the private access itself as from the substance of what was said between them. He therefore urges the adoption of a per se rule that private communications between an arbitrator and a party-litigant constitute misconduct. Gold-finger argues that in order to constitute misconduct sufficient to warrant vacating an arbitration award, such communications must result in prejudice to the complaining party and because the Referee found that Weinman’s conversations with Horowitz, and with Goldfinger did not result in any prejudice to Lisker, the award should be confirmed. Additionally, Gold-finger argues that any conversations between the arbitrators and third parties were authorized by the DDC bylaws.

II.

Our State has long sanctioned arbitration as an effective alternative method of settling disputes (CPLR art 75; Civ Prac Act art 84; Code Civ Pro, ch XVII, tit VIII; Rev Stat of NY, part III, ch VIII, tit XIV [1829]). Those engaged in commercial affairs have routinely resorted to arbitration for an expeditious resolution of their disputes by persons with a practical knowledge of the subject area (Matter of Siegel [Lewis], 40 NY2d 687, 689; Matter of Webster v Van Allen, 217 App Div 219, 221), and as long as arbitrators act within their jurisdiction, their awards will not be set aside because they have erred in judgment either upon the facts or the law (CPLR 7501; Matter of Silverman [Benmor Coats], 61 NY2d 299; Matter of Associated Teachers v Board of Educ., 33 NY2d 229; Fudickar v Guardian Mut. Life Ins. Co., 62 NY 392, 400). Courts are reluctant to disturb the decisions of arbitrators lest the value of this method of resolving controversies be undermined (Matter of Siegel [Lewis], 40 NY2d, at p 689, supra; Fudickar v Guardian Mut. Life Ins. Co., 62 NY, at p 400, supra). Precisely because arbitration awards are subject to such judicial deference, it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded.

Arbitration by its nature contemplates a less formal environment than the judicial forum (see, Matter of Silverman [Benmor Coats], 61 NY2d, at p 308, supra; see also, Bernhardt v Polygraphic Co., 350 US 198, 203 & n 4), and accordingly, arbitrators are not held to the standards prescribed for members of the judiciary. Nevertheless, arbitrators must take a formal oath (CPLR 7506 [a]), are expected to "faithfully and fairly” hear the controversy over which they have been chosen to preside (CPLR 7506 [a]; Matter of Siegel [Lewis], 40 NY2d, at p 689, supra) and ought to conduct themselves in such a manner as to safeguard the integrity of the arbitration process. Arbitrators must afford the parties the opportunity to present evidence and to cross-examine witnesses (CPLR 7506 [c]) and may act only upon proof adduced at a hearing of which due notice has been given to each party (CPLR 7506 [b], [c]; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60, 64; Matter of Penn Cent. Corp. [Consolidated Rail Corp.], 56 NY2d 120, 127). They may not predicate their award on the strength of independent investigation unless so authorized by the parties (Berizzi Co. v Krausz, 239 NY 315, 318).

Although courts generally will not interfere with the judgment of arbitrators, arbitration awards are not to be confirmed without question where there is evidence of misconduct prejudicing the rights of the parties. CPLR 7511 provides in pertinent part that an arbitration award shall be vacated if the court finds that the rights of the complaining party were prejudiced by corruption, fraud, or misconduct in procuring the award (see generally, Rothstein, Vacation of Awards for Fraud, Bias, Misconduct and Partiality, 10 Vand L Rev 813). While arbitrators often are chosen because of their expertise in a particular area (Matter of Siegel [Lewis], 40 NY2d, at p 690, supra; 8 Weinstein-Korn-Miller, NY Civ Prac [J 7506.18) and are generally permitted independent recourse to third-party sources when necessary to confirm technical information (Matter of Gerli & Co. v Heineman Corp., 258 NY 484, 488; Matter of A. M. Pearlman, Inc. [Raycrest Mills], 280 App Div 744, 749) or to further focus their expertise on a particular point, for an arbitrator to privately consult a party-litigant without the knowledge or consent of the other party to the proceeding raises serious concerns as to whether the award was procured by improper means.

In Berizzi Co. v Krausz (239 NY 315, supra), the arbitrator investigated the salability of certain skewers which were the subject matter of a contract dispute, after the hearings had been closed and without notice to the parties. The arbitrator conceded that the award was made on the strength of this personal investigation as well as upon the testimony submitted at the hearing. We vacated the award and held that the independent investigation constituted misconduct because the plaintiff knew nothing of the investigation and therefore had no opportunity to rebut what the arbitrator had been able to learn. We did not adopt a per se rule, however, such as that now urged by Lisker; rather we acknowledged that certain independent investigations such as those "directed toward facts of trifling importance or facts of such a nature as to preclude reasonable contest” and those conducted with the knowledge or consent of the parties would not require invalidation of the award (239 NY, at p 320, supra).

While the bylaws of the DDC authorize arbitrators to "investigate the facts charged in the complaint”, it does not follow that the bylaws sanction the kind of private communications that occurred between Weinman and Goldfinger and Horowitz. Weinman’s communication with Goldfinger following the conversation with Horowitz was deliberate in nature and designed clearly to enable Weinman to resolve in his own mind any doubt he may have had as to Goldfinger’s credibility or the validity of the claim itself. In so contacting Goldfinger, Weinman denied Lisker the opportunity to respond and created the appearance of impropriety if not actual partiality. Such actions amounted to misconduct which prejudiced Lisker’s rights under CPLR 7506 (a), (b) and (c). Furthermore, the fact that Weinman initiated the contact with the goal of testing whether he could break Goldfinger down from his original claim hardly permits characterizing the inquiry as one directed toward "facts of trifling importance” or "facts of such a nature as to preclude reasonable contest”. Indeed, the record demonstrates the importance attached by the arbitrator to the substance and specifics of the alleged settlement offers. Our general reluctance to disturb arbitration awards must yield in this case to the clear necessity of safeguarding the integrity of the arbitration process (cf. Matter of Associated Teachers v Board of Educ., 33 NY2d 229, supra).

For the foregoing reasons, the order of the Appellate Division should be reversed, the motion to confirm the award denied, and the cross motion to vacate the award granted. Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Titone and Hancock, Jr., concur.

Order reversed, with costs, motion to confirm the arbitration award denied, and motion to vacate the award granted.

      . Article XII, § 1 (a) of the DDC bylaws provides in pertinent part that "[a]ny member having any claim arising out of or related to the diamond business * * * must submit to adjudication by the tribunals of Diamond Dealers Club”.

      . In his cross motion to vacate the award, and in his brief to this court, Lisker alleges that the arbitrators were guilty of misconduct by engaging in private communications with Goldfinger, a party-litigant; by engaging in communications with various third parties in the absence of the party-litigants; by refusing to allow Lisker to present certain witnesses on the ground that they were his relatives or employees; by refusing to allow Lisker to transcribe the proceedings; and by allegedly violating the DDC bylaws by disregarding the applicable Statute of Limitations. We find the claim regarding the private communications to be dispositive and therefore need not consider the others.

      . It is not clear from the record who approached whom. According to Goldfinger, Horowitz approached Weinman with the story as part of a plan orchestrated by Lisker himself. At the hearing before the Referee, Horowitz testified that Weinman and he found themselves coincidentally in an office they both frequented, and Weinman began talking about the difficulties of the arbitration which led to the complained of communication.

        . Article XII, § 12 (a) of the DDC bylaws provides in pertinent part that the "Arbitration Committee, acting in each case, shall have the authority and power to investigate the facts charged in the complaint”.

      . See, Matter of Siegel (Lewis), 40 NY2d 687; see, e.g., Code of Judicial Conduct, canon 3, which provides that a Judge should neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.

      . It is instructive to note that in the news journal of the DDC for January 1982, the month following the month in which this award was issued, the chairman of the board of the DDC wrote an article condemning the kind of communications under consideration here as having the potential for distorting the impartiality of the arbitrator.