text:
    In the Matter of Concerned Citizens to Review The Jefferson Valley Mall, by Ann M. Matheson, Chairman, et al., Appellants, v Town Board of the Town of Yorktown et al., Respondents. (Proceeding No. 1.) In the Matter of Darswan, Inc., Respondent, v Albert A. Capellini et al., Respondents, and Michael Bloom et al., Intervenors-Appellants. (Proceeding No. 2.)
    Submitted September 21, 1981;
    decided October 22, 1981
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the' ground that the appeal, pursuant to CPLR 5601 (subd [d]), does not lie to review an order of the Appellate Division made on an appeal in an earlier proceeding [58 AD2d 892]. Motion to expedite the appeal dismissed as academic.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Gregory J. Fischer, Appellant, v Richard D. Hongisto et al., Respondents.
    Submitted October 19, 1981;
    decided October 22, 1981
   Motion to vacate the Court of Appeals order of dismissal dated March 31, 1981 denied. [See 53 NY2d 703.]


text:
    The People of the State of New York, Appellant, v Nathan Johnson, Respondent.
    Argued September 14, 1981;
    decided October 27, 1981

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (David H. Steiner and Vivian Berger of counsel), for appellant.

      Hillard Wiese, William E. Heller stein and Susan Slovak for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A plainclothes detective observed defendant purchase a pistol holster at a 42nd Street novelty shop in Manhattan. When defendant left the shop, the officer approached him, identified himself and displayed his shield. When asked if he had a gun, defendant responded in the negative. The officer then ordered defendant to open his coat. After doing so, defendant offered to open his vest beneath his coat, at which point the officer observed the handle of a .22-caliber pistol in his vest pocket and then seized the weapon.

The purchase of the holster, although not itself a criminal act, provided a sufficient basis for the officer to approach defendant, identify himself and ask defendant a question (People v Samuels, 50 NY2d 1035, cert den 449 US 984). As this court stated in Samuels, however, the purchase of a holster in itself is “not sufficient evidence of criminality to permit more than an inquiry” by police (50 NY2d, at p 1037). Samuels involved more than the mere purchase of a holster. The man being questioned made the menacing movement of placing his hand in his pocket and refused to withdraw it. These factors gave the officer reason to fear for his own safety and justified the officer’s protective action in grabbing the man’s hand (id.; see, also, People v Benjamin, 51 NY2d 267).

In the instant case, however, the suppression court expressly found that there was nothing threatening or unusual about defendant’s demeanor other than a level of nervousness that was to be expected in such an encounter. The court also found that defendant made no menacing gestures that could have given the officer reason to fear for his safety. These findings, for which there is support in the record and which were affirmed by the Appellate Division, are beyond this court’s review. In light of these findings, the officer’s further intrusive step of ordering defendant to open his coat was improper (see Samuels, supra; Terry v Ohio, 392 US 1,27; CPU 140.50, subd 3). The weapon seized was properly suppressed.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Henry Billingsley, Appellant.
    Argued September 18, 1981;
    decided October 27, 1981

      APPEARANCES OF COUNSEL

      Ernest H. Hammer for appellant.

      Mario Merola, District Attorney (Vida M. Alvy and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

There was no deficiency in the court’s inquiry of defendant or in defendant’s responses on the occasion of the acceptance of his plea of guilty. Reference was then included to the defendant’s claim that the gun was fired in self-defense. Defendant’s postplea assertion of innocence predicated on the theory of self-defense in no way vitiated the validity of his prior, counseled plea of guilty. There was, therefore, no abuse of discretion in the denial of defendant’s postsentencing motion to withdraw his plea.

We have examined defendant’s other contentions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Fred Fischer et al., Appellants, v Thomas F. Roche, as Personnel Director of the City of New York, et al., Respondents.
    Decided October 27, 1981

      APPEARANCES OF COUNSEL

      Roy Broudny for appellants.

      Allen G. Schwartz, Corporation Counsel (Angelo Aiosa of counsel), for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (81 AD2d 541).

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


text:
    L. B. Oil Co., Inc., Respondent, v State of New York, Appellant.
    (Claim No. 59728.)
    Decided October 27, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Dennis Hurley of counsel), for appellant.

      Robert S. Tobin for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of the Claims of Dennis W. Maguire et al., Respondents. Philip Ross as Industrial Commissioner, Appellant.
    Decided October 27, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Steven A. Segall of counsel), for appellant.

      Vincent F. Nicolisi for respondent.
   OPINION OF THE COURT

On summary consideration, order, insofar as appealed from, reversed, with costs, and the determination of the Unemployment Insurance Appeal Board reinstated for the reasons stated in the concurring in part and dissenting in part memorandum of Justice J. Clarence Herlihy at the Appellate Division.

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


text:
    The People of the State of New York, Respondent, v Cruz Diaz, Appellant.
    Argued September 18, 1981;
    decided October 27, 1981

      APPEARANCES OF COUNSEL

      Donald E. Nawi for appellant.

      Robert M. Morgenthau, District Attorney (Marc Frazier Scholl and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the majority memorandum at the Appellate Division (77 AD2d 523). We additionally note that defendant’s claim that the Assistant District Attorney who tried this case should not have been permitted to do so was not preserved for review.

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


text:
    In the Matter of Bruce Blumenthal, Appellant, v Victor S. Bahou, as President of the Civil Service Commission of the State of New York, et al., Respondents.
    Argued September 18, 1981;
    decided October 27, 1981

      APPEARANCES OF COUNSEL

      Arthur F. McGinn, Jr., for appellant.

      Robert Abrams, Attorney-General (John Q. Driscoll and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (76 AD2d 1026).

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


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Irving Pleasant, Appellant.
    Argued September 18, 1981;
    decided October 27, 1981

      APPEARANCES OF COUNSEL

      William Mogulescu and Roger D. Olson for appellant.

      Mario Merola, District Attorney (Steven R. Kartagener and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

As a result of information obtained from the Suffolk County authorities, the police in Bronx County were able to connect defendant to a robbery that had occurred there three months earlier. His photograph was procured from the Bureau of Criminal Identification and he was later identified by both victims from a photographic array. Pursuant to an arrest warrant issued by the Bronx Criminal Court, New York City police officers arrested defendant, who was being held in Suffolk County on charges of unlawful possession of a weapon. Defendant was then identified by one of the robbery victims in a pretrial lineup. Subsequently, the Appellate Division, on review of defendant’s conviction on the Suffolk County charges, found that defendant had been unlawfully arrested in Suffolk County, and the weapons seized were ordered suppressed (People v La Borde, 66 AD2d 803). We reject defendant’s argument that because of that unlawful arrest, both the pretrial lineup identification and the in-court identification of him by the victims must be suppressed as the fruits of the unlawful arrest.

As to the in-court identification of defendant, it is settled that such an identification will not be precluded by the fact of an antecedent unlawful seizure, so long as the in-court identification proceeds from an independent recollection (United States v Crews, 445 US 463). Believing, as we do, that the ability of the robbery victims to identify defendant is not tainted by the unlawful seizure by the Suffolk County police, there is no warrant to suppress the in-court identification.

With respect to the pretrial lineup identification, we conclude that the means used to obtain this identification were “ ‘sufficiently distinguishable to be purged of the primary taint’ ” (Wong Sun v United States, 371 US 471, 488) . In addition to the fact that only defendant’s identity was obtained as a result of the unlawful seizure, the remaining effort having been undertaken by the police in Bronx County, who had in no way participated in any claimed illegality, we emphasize that defendant, at the time of the lineup, was being held, not as the result of the unlawful seizure, but under lawful process of the criminal court. We believe that the fact of defendant’s arrest on a warrant is enough to dissipate any taint that might have flowed from the unlawful arrest (see Johnson v Louisiana, 406 US 356, 365), and thus to hold that the lineup identification need not be suppressed as a forbidden fruit of defendant’s antecedent arrest.

We need not decide whether an illegality that reveals a defendant’s existence as the suspected perpetrator of another crime can ever require suppression of evidence resulting from that information. It is sufficient to note that under the circumstances here, the challenged evidence simply was not tainted by the unlawful arrest.

Jones, J.

(concurring). I agree that the order of the Appellate Division should be affirmed, but I would premise that result on a somewhat different analysis than does the majority. Normal prosecution procedures are not foreclosed because defendant’s identity became known to the police in consequence of his illegal arrest on unrelated charges. This situation is to be distinguished from that in which exploitation of illegal police action has led to the discovery of evidence later sought to be used to obtain a defendant’s conviction.

On October 4, 1976 two security guards, John Casey and Carlton Edwards, employed at an A & P supermarket in The Bronx were robbed at gunpoint. Included in the articles stolen was Casey’s .38 calibre pistol. In their efforts to apprehend the robbers, the Bronx County police sent out a multi-State alarm for the registered pistol, and eventually this alarm became nationwide when it was entered in the National Crime Information Center system.

On December 30, 1976, in consequence of the N.C.I.C. alarm, the Bronx County police received information by telephone from the Suffolk County police that the latter had recovered the registered pistol when three individuals were arrested on weapons possession charges in Suffolk County. The Suffolk County police provided the names and dates of birth of the three men held in their custody, which included those of defendant. Prior to receipt of this information, the Bronx County police had had no leads connecting defendant to the October 4 robbery.

When the Suffolk County police made no response to a request for photographs of defendant, the Bronx County police obtained his mug shot photographs from the Bureau of Criminal Identification of the New York City Police Department, mug shots which had been in that bureau’s possession for some time. Armed with the photographs so obtained, the Bronx County police compiled a 10-photo array. When this array was exhibited to Casey and Edwards, each identified defendant. Thereupon a felony complaint was filed against defendant and a warrant issued for his arrest. On the basis of this warrant defendant was brought to Bronx County and placed in a lineup at which defendant’s attorney was present. On viewing this lineup, Casey but not Edwards again identified defendant.

Meanwhile the Suffolk County prosecution of defendant on the weapons possession charges had been progressing and resulted in defendant’s conviction. When that conviction was reversed at the Appellate Division on the ground that defendant’s arrest and the incidental seizure of the weapons had been illegal (People v La Borde, 66 AD2d 803), defendant made the present motion in Bronx County to suppress all pretrial and in-court identification testimony of Casey and Edwards with reference to the Bronx County robbery. Supreme Court granted the motion, and on appeal the Appellate Division reversed, one Justice dissenting. As indicated, I, too, would affirm the order of the Appellate Division.

It is defendant’s submission that the identification testimony must be suppressed under the doctrine of fruit of a poisoned tree (Wong Sun v United States, 371 US 471) inasmuch as the identification testimony was the product of defendant’s illegal arrest in Suffolk County. Defendant’s contention is grounded in a faulty analysis and must be rejected.

The illegality incident to defendant’s arrest in Suffolk County in no way infected the testimony of John Casey or Carlton Edwards with respect to their identification of defendant in the photo array or with respect to the former’s lineup identification of defendant. Nor would it infect any in-court identification testimony of either witness. None of such testimony can be characterized as the fruit of any poisoned tree.

The illegal arrest in Suffolk County did call defendant’s existence to the attention of the Bronx County authorities and enable them to determine for the first time who it was who might have committed the robbery at the A & P supermarket on the morning of October 4, 1976; it unquestionably was the triggering event in the location of defendant. Although the Suffolk County arrest led the police to knowledge of defendant’s identity, it did not lead them to any testimony or proof with respect to his identification as a participant in the supermarket robbery. The two witnesses were both known to the police prior to defendant’s arrest in Suffolk County. Their recogniton of defendant and their testimony as to such recognition stemmed from observations made by them at the time of the robbery,- wholly unrelated to his subsequent illegal arrest. The photos used in the photo array had not been taken at the time of or in connection with the Suffolk County arrest. They were not obtained from the Suffolk County Police Department; they were obtained from the Bureau of Criminal Identification of the New York City Police Department.

In this circumstance the trespass on defendant’s constitutional rights when he was arrested in Suffolk County does not preclude the use of identification testimony from Casey or Edwards in connection "with defendant’s prosecution on the Bronx County charges. Suppression in consequence of violation of the constitutional provisions forbidding unreasonable searches and seizures (US Const, 4th Amdt; NY Const, art I, § 12) is directed to testimonial and physical evidence (e.g., Wong Sun v United States, 371 US 471, 485, supra). The constitutional provisions do not prevent the use of the People’s knowledge of the identity of defendant even if acquired through violation of the constitutional proscriptions, nor would any such antecedent illegality, to the extent that it led to knowledge of his identity as distinguished from evidence of his guilt, restrict the procedures to be employed or the evidence to be relied on for his subsequent prosecution. To suggest that the testimony of witnesses that defendant was the perpetrator of the crime must be suppressed because illegality led to the People’s awareness of defendant’s identity (as contrasted with illegality resulting in the discovery of the witnesses or in the elicitation of their testimony) would be a novel and wholly unacceptable doctrine for which, so far as I am aware, there is no authority (cf. Frisbie v Collins, 342 US 519, 522).

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur in memorandum; Judge Jones concurs in a concurring opinion in which Judges Jasen and Meyer concur.

Order affirmed.

       With regard to the pretrial identifications from the photographic array, the People do not argue for their admissibility. Such an identification is, of course, inadmissible as a matter of State law (People v Lindsay, 42 NY2d 9; People v Caserta, 19 NY2d 18). We note, however, that these identifications from the photographic array were not an exploitation of the antecedent illegality, as defendant’s photograph was obtained from a source independent of the unlawful arrest (see Bynum v United States, 274 F2d 767), and such identifications proceeded from thé witnesses’ independent recollections. The photographic identifications were conducted in a proper manner, and were not tainted by the unlawful arrest in Suffolk County. Thus, it cannot be said that the photographic identifications tainted the subsequent lineup identification.


text:
    In the Matter of Harlem Valley United Coalition, Inc., et al., Appellants, v Frank A. Hall, as Director of the Division for Youth of the State of New York, et al., Respondents.
    Argued September 17, 1981;
    decided October 27, 1981

      APPEARANCES OF COUNSEL

      James D. Benson and Donald Cappillino for appellants.

      Robert Abrams, Attorney-General (Francis J. Keehan, Jeremiah Jochnowitz and James A. Sevinsky of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division is affirmed, without costs, for reasons stated in the memorandum of the court (80 AD2d 851). We note, additionally, that the project for establishment of a secure juvenile facility was authorized pursuant to legislative authority granted to the Division for Youth. The establishment of such a facility will, in most instances, inherently and inescapably pose some community problems wherever it may be geographically located. In any challenge to such an agency’s declaration of environmental nonsignificance in regard to such a facility, judicial focus must be on whether the agency failed to consider substantial disadvantages peculiar to a particular location or that the exposure of the community may not be reduced to reasonable proportions by the employment of other means to complete the project at the proposed location. There is no substantial proof of either in this record.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of David O’Flaherty, Respondent, v Board of Education of the City of New York, Appellant.
    Decided October 27, 1981

      APPEARANCES OF COUNSEL

      Stuart Salles for appellant.

      Allen G. Schwartz, Corporation Counsel (Michael Gage of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs (Matter of Short v Nassau County Civ. Serv. Comm., 45 NY2d 721; Matter of Pell v Board of Educ., 34 NY2d 222).

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


author: Fuchsberg, J.

text:
    The People of the State of New York, Appellant, v James V. Arcadi, Respondent.
    Argued September 11, 1981;
    decided October 27, 1981

      APPEARANCES OF COUNSEL

      Edward C. Cosgrove, District Attorney (John J. De Franks of counsel), for appellant.

      Thomas C. D’Agostino for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (79 AD2d 845).

Concur: Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Meyer. Judge Fuchsberg dissents and votes to reverse in an opinion in which Judge Jasen concurs.

Fuchsberg, J.

(dissenting). The facts in this case speak for themselves.

An Assistant District Attorney undertook to influence the outcome of a pending burglary prosecution. In return for his efforts, he was first promised an initial payment of $6,500 in cash and later an additional $1,500, the latter solicited to pay the fee of the more compliant attorney whom he suggested be substituted as defense counsel in order to help him accomplish his purpose. The Assistant District Attorney further guaranteed that, if he did not succeed in keeping the burglary defendant out of jail, the $6,500 would be refundable. In arranging for the compliant defense counsel’s engagement, initiated and arranged personally by the Assistant District Attorney, the latter did not disclose the amount he had received for that purpose. As later established, the Assistant District Attorney and an intermediary who represented the burglary defendant in the bribe arrangement had agreed between themselves that, no matter what the outcome of the burglary prosecution, he was to “keep” the $1,500 or, presumably, the difference between that sum and whatever he actually paid over to compliant defense counsel.

In carrying out this plan, the Assistant District Attorney accepted the $6,500 on June 3,1977, engaged compliant defense counsel on June 6, 1977, then was paid the further sum of $1,500 on June 7 and, on June 27, was still awaiting the outcome on which his retention of the $6,500 was conditioned when he was apprehended.

After a trial by jury, the Assistant District Attorney was convicted of bribe receiving in the second degree. This crime, as defined by section 200.10 of the Penal Law, occurs when “A public servant * * * solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced” (emphasis added).

For the part he played, the compliant defense counsel was convicted of what is now classified as criminal facilitation in the fourth degree. This crime, as defined by section 115.00 of the Penal Law, occurs when “A person * * * believing it probable that he is rendering aid to a person who intends to commit a crime * * * engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony”. The People now appeal from the order of the Appellate Division, which, without challenging the facts we have detailed, reversed the compliant counsel’s judgment of conviction.

To justify its result, the Appellate Division reasoned that, since, on June 3, the plot had progressed to a point where the Assistant District Attorney already had “accepted” the conditional payment of $6,500, his crime was “complete”, so that the successful recruitment of the compliant counsel on June 6 came too late to make it possible for him to “render aid” in the Assistant District Attorney’s commission of his crime. It is this conclusion which our court today accepts. It is because I cannot believe either common .sense or a reasonable application of the statutes involved will abide such a result that I must voice my disagreement.

True, in a limited sense, the Assistant District Attorney’s crime was “complete” when he “accepted” the $6,500. So, had his programmed criminal plan stopped at that point, the criminal activity in which he had already engaged would have been enough to support his conviction. But, it had been “complete” too when, on a preceding day, he had “agreed” to this arrangement; if the Appellate Division’s premise stands, anyone knowingly turning over the bribe money on the following day could not be said to be “rendering aid to a person who intends to commit a crime”. Nor, in the semantic term in which the Appellate Division (but not the statute) chooses to speak, were these two events the only acts of “completion”. In its perspective, the on-going crime was “completed” once again when the Assistant District Attorney solicited the additional $1,500, and he then made it even more “complete” when he received and pocketed that money, which, as indicated, did not occur until after the compliant defense counsel had agreed to participate. And, even thereafter, while awaiting what he no doubt hoped would be the successful denouement of his efforts, the Assistant District Attorney still had to look forward to the acts of “completion” which would accompany the resolution of the conditions which would determine whether and how much of the moneys would remain his.

The reality is that, while conceivably the indictment for bribe receiving might have been handed down at any of the stages by which the Assistant District Attorney advanced his singular criminal enterprise, as parts of a whole each of these was embraced in an indictment which spanned the connected events running from the crime’s inception on May 27,1977 through the date of the arrest, June 27,1977. It specifically alleged, inter alia, that the Assistant District Attorney had “agreed” to a bribe of $6,500, that he actually had “accepted” this sum, that its retention was contingent on his success in avoiding incarceration for the defendant in the case in which he was intervening and that the compliant defense counsel had agreed to play the supporting role called for by the Assistant District Attorney’s script.

From all this, I would suggest that the simple answer to the Appellate Division’s “completion” theory is to ask further questions: “Completion” for what purpose? To support a particular indictment against a defendant for bribe receiving which involves, as the case may be, one or more of the related, though disjunctive, phases enumerated in the statutory definition of that crime? Or to support a prosecution for facilitation at one or more of the stages of a bribe receiving scenario, bearing in mind that conviction of facilitation can rest on conduct which aids another in committing a felony, including, of course, any phase of bribe receiving and irrespective of whether the bribe receiver himself is prosecuted for his crime or not?

Therefore, in my view, a holding that the crime of facilitation would not be provable against one in the position of the compliant defense counsel under the facts and circumstances in this case could never have been within the contemplation of the Legislature which adopted the statutory scheme. It follows that the order of the Appellate Division should be reversed and the conviction reinstated.

Order affirmed, etc.


author: Gabrielli, J.

text:
    University Auxiliary Services at Albany, Inc., Respondent, v Penelope Smith, as Assessor for the Town of Clifton Park, Appellant. University Auxiliary Services at Albany, Inc., Respondent, v Edwin Faulkner, as Assessor for the Town of Halfmoon, Appellant.
    Argued September 16, 1981;
    decided October 27, 1981

      APPEARANCES OF COUNSEL

      Thomas D. Nolan, Jr., for Penelope Smith, as Assessor for the Town of Clifton Park, appellant.

      William H. Keniry for Edwin Faulkner, as Assessor for the Town of Halfmoon, appellant.

      E. Guy Roomer for respondent.

      Robert L. Beebe and Stephen J. Harrison for New York State Board of Equalization and Assessment, amicus curiae.

   OPINION OF THE COURT

In each case: Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (78 AD2d 959; see, also, Matter of St. Joseph’s Health Center Props, v Srogi, 51 NY2d 127; and Matter of Faculty-Student Assn. of the State Univ. Coll, at Oswego v Sharkey, 29 NY2d 621; contrast Matter of Stuyvesant Sq. Thrift Shop v Tax Comm, of City of N. Y., 54 NY2d 735).

Concur: Judges Jasen, Jones, Fuchsberg and Meyer. Judge Gabrielli dissents and votes to reverse in an opinion in which Chief Judge Cooke and Judge Wachtler concur.

Gabrielli, J.

(dissenting). Because I believe that the majority’s holding today involves an unwarranted extension of the real property tax exemption statute, I must dissent. Since petitioner has failed in its burden of proof as to whether it is entitled to a tax exemption, I would reverse the order of the Appellate Division granting an exemption for certain of petitioner’s real property.

Petitioner is a not-for-profit corporation organized for educational purposes. It provides various auxiliary services for the State University of New York at Albany, such as a dormitory food service, cafeteria, book store and laundry facilities. The property for which petitioner seeks a tax exemption is located partially in the Town of Halfmoon and partially in the Town of Clifton Park, collectively known as the “Mohawk Campus”. This property is used for a variety of recreational activities. It is also claimed that the property is used for workshops, conferences and seminars.

Petitioner commenced two proceedings pursuant to article 7 of the Real Property Tax Law to challenge the assessments levied by the two towns, claiming an exemption for this property. Respondents are the Assessors for the Town of Halfmoon and the Town of Clifton Park.. The proceedings were tried jointly, and Supreme Court dismissed the petitions, finding that petitioner had failed to sustain its burden of proof that it was entitled to a tax exemption. The Appellate Division unanimously reversed, finding that the “primary use of [the property] is reasonably incidental to petitioner’s main educational purpose and, therefore should have been granted tax exempt status”. The majority of this court agrees with the reasoning of the Appellate Division. As I believe that the property is not entitled to a tax exemption, I would reverse the order of the Appellate Division.

Section 421 (subd 1, par [a]) of the Real Property Tax Law affords a tax exemption to a corporation or association organized exclusively for educational purposes, where the real property for which exemption is sought is “used exclusively for carrying out thereupon one or more [exempt] purposes”. The present case concerns only the “use” of the property, as it is undisputed that petitioner is a corporation organized exclusively for educational purposes. Thus, the issue presented on this appeal is whether the Mohawk Campus, for which petitioner seeks a tax exemption, is used for an educational purpose.

Tax exemption statutes are to be construed rigidly and strictly against the party claiming exempt status, and an exemption is to be denied unless the statutory language or legislative intent clearly requires that an exemption be granted (Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476, 483; Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143, 153). Notwithstanding this general rule of construction, we have also held that we must avoid an interpretation “so literal and narrow that it defeats the exemption’s settled purpose” (Matter of Association of Bar of City of N. Y. v Lewisohn, supra, p 153). Thus, the requirement that real property be used “exclusively” for an exempt purpose has been interpreted to mean that the property need only be used “principally” or “primarily” for that purpose.

The Appellate Division, on whose reasoning the majority relies, held that the primary use of petitioner’s property was reasonably incidental to petitioner’s main educational purpose. In so holding the court did not indicate its view as to what the “primary” use of the property was. It merely noted that workshops, conferences, and seminars were conducted on the property, that a pool was located on the property, and that picnics and other recreational activities also take place there. Thus, the holding of the Appellate Division, and the majority of this court, must be based on one of two rationales: they either regard the issue of primary use as resolved as soon as it is found that any educational activity took place on the property, or they have concluded that even if the primary use of the property is recreational, such a use amounts to an educational, and thus exempt use. I cannot agree with either of these bases for upholding the tax exemption.

With regard to the first rationale, that petitioner is entitled to a tax exemption if any educational activity took place on the property, I note that the only indication that such activity took place is the statements of petitioner’s managers to that effect. The trial court found that beyond these statements, which it quite properly termed “conclusory”, there was no proof as to the nature or frequency of such workshops, conferences or seminars. I am unwilling to say that petitioner has sustained its burden of proof that such activities took place to any significant extent. Moreover, I cannot agree that our holdings requiring a “primary” use for exempt purposes can be satisfied by so bare a showing of educational activity.

With regard to the second possible basis for today’s holding, that recreational activity suffices for a finding of exempt use, I emphasize that the recreational activity on the Mohawk Campus is unstructured, and has no connection to the university’s athletic or any other program. I am not suggesting that the school’s athletic fields or gymnasiums should not be tax exempt, so long as a nexus to education is shown (People ex rel. Board of Trustees of Mt. Pleasant Academy v Metzger, 98 App Div 237, affd 181 NY 511; see Matter of Syracuse Univ., 214 App Div 375, 377; but see Matter of American Mgt. Assns. v Assessor of Town of Madison, 63 AD2d 1102). A university’s athletic program is an integral part of its over-all responsibility to improve its students, both intellectually and physically. I merely object to the majority’s holding that the unscheduled, unstructured, and unsupervised recreational activity in the present case can form the basis for a tax exemption.

Nor do the cases cited by the majority in affirming the decision below mandate this result. The central issue in those cases involved satisfaction of the first part of the two-part test set up in section 421 of the Real Property Tax Law for a tax exemption (i.e., that the property be owned by a corporation or association organized for an exempt purpose). Thus, we held in Matter of St. Joseph’s Health Center Props. v Srogi (51 NY2d 127) that a not-for-profit corporation, operated solely to carry out the purpose of another exempt corporation (a hospital) can qualify for a tax exemption, notwithstanding the fact that it was not itself the exempt corporation. We have only required that such an organization be conducted for a purpose reasonably incident to the major purpose of another exempt corporation. Similarly, in Matter of Faculty-Student Assn. of State Univ. Coll. at Oswego v Sharkey (35 AD2d 161, affd 29 NY2d 621), it was held that a nonprofit corporation, organized to promote and assist the State University College in its educational activities, can qualify for a tax exemption. Neither case stands for the proposition that primarily unstructured recreational use of property will qualify it for an exemption. Indeed, I have no quarrel with a holding that petitioner herein, organized as it is to provide auxiliary services to the State University, can qualify for a tax exemption. This does not mean that all of its property holdings qualify for such exemption, regardless of their use. Rather, the clear language of section 421 requires that in addition to petitioner’s qualifying as an exempt corporation, it must also demonstrate that the use of the particular property for which exemption is sought is of an exempt nature. Such a use has not been established in the present case.

Further, an examination of the use of the property in the St. Joseph’s and Faculty-Student Assn, cases indicates uses wholly different from the use of the Mohawk Campus. In St. Joseph’s, we held exempt certain property which was adjacent to the hospital, used exclusively to house hospital personnel at nominal rents (making it possible to attract personnel from outside the area), where the properties were managed by hospital personnel, and the hospital collected the rents, maintained the properties and paid expenses. That the activity undertaken on the property was an integral and necessary part of the hospital’s operation is clear.

In Faculty-Student Assn., properties for which an exemption was granted were used for housing and recreation, and were held by the association, in part, to permit further expansion of the State University College. The provision of housing must also be considered an integral part of the operation of a university. That recreation is a part of the activity taking place on the property should certainly not defeat an otherwise proper tax exemption. But where, as in the instant case, it is the independent, unstructured recreational activity that predominates in use, a tax exemption is simply not warranted or authorized by the statute.

In summary, it is my view that petitioner has not sustained its burden of proof that the use of the property is primarily for an exempt purpose. If the property had been used primarily for educational purposes, the fact that recreational activities also took place would certainly not defeat the tax exemption. The statute clearly does not contemplate an exemption for all property held by a qualifying organization. Thus, the primary use of the property for an exempt purpose not having been established by petitioner as educational, I would not grant a tax exemption in this case.

Hence, the order of the Appellate Division should be reversed, with costs, and the petitions dismissed.

Order affirmed, etc.


text:
    Beth Berlin, Appellant, v Fort Howard Paper Company et al., Respondents.
    Submitted October 20, 1981;
    decided October 27, 1981
   Motion insofar as it seeks dismissal of the appeal as against defendant Xenos granted and the appeal as against that defendant dismissed, with $20 costs of motion, upon the ground that the portion" of the order of the Appellate Division which dismissed causes of action against defendant Xenos, with leave to replead, does not finally determine the action within the meaning of the Constitution. Motion insofar as it seeks dismissal of the appeal as against defendant Fort Howard Paper Company denied.


text:
    Hiram C. Bromley et al., Appellants, v Andreas Cosmatos et al., Respondents.
    Submitted October 12, 1981;
    decided October 27, 1981
   Motion for leave to appeal dismissed, with $20 costs, upon the ground that the supporting papers, including the brief, were not served at least eight days prior to the statutory return date of the motion. (CPLR 5516, 2214; 22 NYCRR 500.9; Dellaratta v International House of Pancakes, 46 NY2d 936.)


text:
    Anthony Esteves, Respondent, v Somco Fuel, Inc., Defendant and Third-Party Plaintiff-Appellant, and Heat-Timer Corp., Respondent. 163 Eastern Parkway Realty Corp., Third-Party Defendant-Appellant.
    Submitted October 12, 1981;
    decided October 27, 1981
   Motion for leave to appeal by defendant third-party plaintiff denied as unnecessary. Motions by defendant and by third-party defendant for leave to appeal denied. Motion to dismiss appeals taken as of right by defendant third-party plaintiff and third-party defendant pursuant to CPLR 5601 (subd [d]) denied insofar as it seeks dismissal of the appeal taken by defendant third-party plaintiff to bring up for review the Appellate Division order dated July 3, 1978; motion otherwise granted and the remaining portions of the appeals dismissed, with $20 costs of motion, upon the ground that they do not lie as of right (see CPLR 5601, subd [d]).


text:
    Anthony Esteves, Respondent, v Somco Fuel, Inc., Defendant and Third-Party Plaintiff-Appellant. 163 Eastern Parkway Realty Corp., Third-Party Defendant-Respondent.
    Submitted August 17, 1981;
    decided October 27, 1981
   Motions for leave to appeal denied. Motion to dismiss appeals taken as of right by defendant third-party plaintiff and third-party defendant pursuant to CPLR 5601 (subd [a], par [iii]) granted and said appeals dismissed, with costs and $20 costs of motion, upon the ground that the modification at the Appellate Division is not in a respect which is within the power of the Court of Appeals to review (CPLR 5601, subd [a], par [iii] ; Cohen and Karger, Powers of the New York Court of Appeals, § 148, pp 588-590).


text:
    Francis V. Manion et al., Plaintiffs, and Robyn G. Haggard et al., Appellants-Respondents, v Pan American World Airways, Inc., Respondent-Appellant.
    Submitted August 24, 1981;
    decided October 27, 1981
   On the court’s own motion, cross appeal dismissed, without costs, upon the ground that defendant-appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]). Motion for leave to cross-appeal denied, with $20 costs and necessary reproduction disbursements.


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Louis Behling, Also Known as Larry Hendrix, Appellant.
    Argued September 18, 1981;
    decided October 29, 1981

      APPEARANCES OF COUNSEL

      Lissa Griffin and William E. Hellerstein for appellant. Eugene Gold, District Attorney (Barbara L. Linzer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

During defendant’s trial, the court ruled that the victim’s address should not be disclosed to the jury. Defense counsel made no objection to this ruling. After deliberating for two hours, the jury requested that it be supplied with the “area” of the victim’s residence, but the Trial Judge refused to reopen the case to admit any additional proof.

On the record before us, we cannot say that the trial court abused its discretion as a matter of law by refusing to provide the jury with the location of the victim’s residence. This additional information, at best, related to that witness’ credibility. Furthermore, allowing this proof into evidence for the first time after the jury had entered into deliberations could have led to further disruptions of the progress of the trial. Finally, the record indicates that the victim’s residence originally was not disclosed at trial because he feared for the safety of his family. Under the circumstances, the trial court acted within its discretion in denying the jury’s request for additional evidence. (See People v Olsen, 34 NY2d 349; People v Ferrone, 204 NY 551.)

We have examined defendant’s remaining contention and have found it to be without merit.

Meyer, J.

(dissenting). I agree that defendant neither objected to nor asked for a hearing concerning the Trial Judge’s ruling at the beginning of the complainant’s (Brown’s) testimony that the address should be given as “care of the District Attorney’s Office, Brooklyn Municipal Building”. I part company with the majority, however, over its conclusion that the jury’s request to be informed of the area in which the complainant resided was answered by a discretionary refusal to provide the information requested.

The request was “to know where Mr. Brown’s area, not completely the address, of where he resides.” The Trial Judge’s response was “Where Mr. Brown lives is not evidentiary nor a relevant consideration in this case and you may recall when I instructed the reporter to record that Mr. Brown’s address was in the Municipal Building, where the D.A.’s office is, it is not an issue in this trial. It is not an area for the jury to speculate or concern itself about.” The codefendant’s motion for a mistrial on this issue was answered by the court’s statement that “There is no testimony” and codefendant then objected that the court had not said that, and had in fact said that “for the purposes of this trial his address is to be considered the Municipal Building.” Defendant’s attorney then also moved for a mistrial noting that the jury thought Brown’s address “is relevant. I think it is relevant. They want to know where he was at that hour, where he worked, how the house is, the areas he is suppose to be sleeping. I think they have a right, good reasons in their minds. I take exception to it. You didn’t tell them where he resides and I move for a mistrial.”

In fact Brown did not reside in the area of downtown Brooklyn where the Brooklyn Municipal Building is located but in a part of Brooklyn close to Ozone Park. Where he did reside bore materially on his credibility since Brown contended defendant was totally unknown to him at the time and with two other men had kidnapped him when he stopped at a liquor store in Brooklyn on the way from his office on Jamaica Avenue, Queens, to his home, while defendant’s defense was that Brown was a narcotics dealer for whom defendant acted as a collector and who had threatened to “get” defendant for withholding part of the money collected and for knocking Brown down during an argument over collections. Thus, the case against defendant turned on whether Brown was the victim of a kidnapping or himself a criminal and the aggressor. On that issue Brown’s residence address, which would have shown that the liquor store was well beyond his home address and, therefore, could not possibly have been “on the way” from office to home was indeed material, if not vital. Yet, without considering any of the factors concerning reopening, or even asking whether the District Attorney was willing to stipulate, the Trial Judge’s instruction to the jury was that the address was not relevant and that they, should not concern themselves about the address. Thus, the jury had to decide an issue on which they obviously regarded the address as relevant without that information, to defendant’s obvious detriment.

The Olsen and Ferr one cases on which the majority relies are, therefore, not relevant. But if the ruling be deemed one made in the exercise of discretion, I would hold it an abuse of discretion as a matter of law to rule as precipitately as the Trial Judge did. As already noted, credibility was what the trial was all about. The jury obviously attached importance to complainant’s area of residence in deciding that question, so any additional emphasis came “from the fact finders themselves and not as a result of counsel’s stratagem” (People v Olsen, 34 NY2d 349, 354). They asked only the area rather than the actual residence, so a response could have been devised that would reasonably protect the complainant’s safety. The possibility that response would invite rebuttal could properly have been considered had the Trial Judge waited to hear from the prosecutor in this respect. He did not, however, so that possibility is not part of the equation.

True it is that the jury did not, as in People v Ferrone (204 NY 551), request that the witness be recalled, as distinct from requesting the information they asked for, but no significance can be attached to that fact for they had already been told during trial that the address would not be revealed. To differentiate between a jury’s request for unproven facts and a request that a witness be recalled presumes a sophistication on the part of jurors which, were the issue still open for decision (cf. People v Olsen, supra), I would hold nonexistent. To apply Olsen’s reasoning on this point to the circumstances of the instant case, however, is to ignore reality.

True, also, that the data requested went to credibility rather than to an element of the crime itself. But, as already noted, the data requested bore importantly in the jurors’ minds on the complainant’s lack of credibility and that lack was not just an element of the defense, it was the defense itself. There was, therefore, compelling reason for the Trial Judge to inquire, before ruling, whether the inquiry could not be answered by an agreed upon reply and, if not, whether recall of the witness would necessitate substantial rebuttal evidence.

In sum, the Trial Judge’s answer was not made in the exercise of discretion and misled the jury to defendant’s detriment. In any event, his ruling, if discretionary, was made on what he presumed rather than on a balancing of the interests referred to in Olsen and, therefore, constituted an abuse of discretion as a matter of law. In consequence, I would reverse and grant a new trial.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in memorandum; Judge Meyer dissents and votes to reverse in an opinion in which Judge Fuchsberg concurs.

Order affirmed.


text:
    Zandri Construction Co., Inc., Appellant, v Stanley H. Calkins, Inc., et al., Defendants, and Firemen’s Insurance Co. of Newark et al., Respondents.
    Decided October 29, 1981

      APPEARANCES OF COUNSEL

      Leslie F. Couch for appellant.

      Dale M. Thuillez for Firemen’s Insurance Co. of Newark, respondent.

      Peter A. Firth for Lumbermen’s Mutual Casualty Co., respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. Plaintiff’s claims under the insurance policies fall within the policies’ exclusions and defendant insurance companies are relieved of their obligations to defend and indemnify. The exception to the exclusion for contractual liability when read in conjunction with the other policy exclusions does not lead to a contrary result.

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


text:
    In the Matter of James Reilly et al., Appellants, v Francis McKnight, as Town Justice of the Town of Brunswick, et al., Respondents.
    Decided October 29, 1981

      APPEARANCES OF COUNSEL

      James T. Viger for appellants.

      John J. Sweeney, Jr., for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs (see Richmond Newspapers v Virginia, 448 US 555; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430; Matter of Gannett Co. v De Pasquale, 43 NY2d 370).

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


text:
    Margaret E. Chadwick, Appellant, v Kathleen Borrero et al., Respondents.
    Decided October 29, 1981

      APPEARANCES OF COUNSEL

      Margaret A. Simonoff for appellant.

      Thomas R. Newman for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs (Gager v White, 53 NY2d 475).

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


text:
    In the Matter of Blossom Fogel, Appellant, v Commissioner of Education of the State of New York et al., Respondents.

      Argued September 18, 1981; decided
    October 29, 1981

      APPEARANCES OF COUNSEL

      Joan Goldberg for appellant.

      James H. Whitney, Robert D. Stone and Jean M. Coon for Commissioner of Education of the State of New York, respondent.

      Allen G. Schwartz, Corporation Counsel (Trudi Mara Schleifer and Francis F. Caputo of counsel), for Board of Education of the City of New York, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, Third Department, should be affirmed, with costs. The Appellate Division correctly held that the determination of the commissioner was founded upon a rational and reasonable basis.

The article 78 proceeding commenced against the board of education and transferred to the Appellate Division resulted in reversal on procedural grounds, but that court clearly considered and passed on the substantive issues adversely to petitioner. When the board made its redetermination, petitioner initiated a new and distinct review proceeding through the commissioner, challenging the board’s determination on grounds similar to those raised in the prior proceeding, which left standing unappealed the prior determination of the Second Department on the issues she now seeks to litigate.

Matter of Venes v Community School Bd. of Dist. 26 (43 NY2d 520), relied upon by petitioner, is not to the contrary, for it dealt not with the preclusive effect of a prior court ruling but with the effect of a prior administrative ruling made without hearing. Nor does the record support petitioner’s contention that the board upon remittal made new findings and a determination based on new or additional charges and evidence. What it did, and all it did, was (consistently with the Appellate Division’s direction) give petitioner the opportunity to contest the trial examiner’s findings and, having considered her arguments, points of law and challenges, reaffirm its 1973 determination of dismissal.

The commissioner’s determination in effect to abstain from deciding those issues that were not decided in the earlier proceeding was also not improper in light of the then pending Federal litigation (Teachers United For Fair Treatment v Anker, 445 F Supp 469) involving some of the same issues (e.g., failure to specify reasons for dismissal) which petitioner claimed were new (General Aniline & Film Cory, v Bayer Co., 305 NY 479; Procter & Gamble Distr. Co. v Lloyd’s Underwriters, 44 Misc 2d 872). The commissioner’s conclusion that res judicata and abstention precluded such relitigation was not irrational or unreasonable, therefore (cf. Bernstein v Birch Wathen School, 71 AD2d 129, affd 51 NY2d 932).

Finally, it should be noted that whatever rights petitioner acquired by the arbitration proceedings and judgment entered on the arbitrator’s award, the effect of that award was not before the commissioner or the courts below and has not been considered by us.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Jeanne Steinhardt, as Executrix of James McKee, Jr., Deceased, Appellant, v Johns-Manville Corporation et al., Respondents. Stanley Rosenberg et al., Appellants, v Johns-Manville Sales Corporation et al., Respondents. Jerome Brenner et al., Appellants, v Johns-Manville Sales Corporation et al., Respondents. Dorothy Cohen, as Administratrix of the Estate of Emanuel Cohen, Deceased, Appellant, v Johns-Man-ville Products Corporation et al., Respondents. Rose Failla, as Administratrix of the Estate of Vincent Failla, Deceased, Appellant, v Johns-Manville Products Corporation et al., Respondents. Joseph Ferrarese et al., Appellants, v Johns-Manville Sales Corporation et al., Respondents. Rose Weinberg, as Administratrix of the Estate of Albert Weinberg, Deceased, Appellant, v Johns-Manville Products Corporation et al., Respondents.
    Argued September 9, 1981;
    decided October 29, 1981

      APPEARANCES OF COUNSEL

      Frank S. Kedzielawa, Carl A. Green and James W. Kirkpatrick for appellant in the first above-entitled action.

      Norman J. Landau for appellants in the second through seventh above-entitled actions.

      Lawrence T. D’Aloise and Daniel T. Roach for Johns-Manville Corporation and others, respondents.

      Thomas F. Segalla for Fibreboard Paper Products Corp., respondent.

      Alexander C. Cordes and Paul F. Jones for GAF Corporation and others, respondents.

      Robert M. Kiebala for Eagle-Picher Industries, Inc., respondent.

      Gordon D. Tresch for Owens-Corning Fiberglass Corporation, respondent.

      Sheldon Hurwitz for Armstrong Cork Company, respondent.

      Franklin N. Meyer for Raybestos-Manhattan, Inc., respondent.

      Michael Majewski and Joseph D. Ahearn for Southern Asbestos Co. and another, respondents.

      James J. Lysaght for Colt Industries, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs in these actions, asserting injuries caused by the inhalation of asbestos particles, each commenced his action more than four years after their or their decedents’ last employment-related exposure to asbestos. In Schmidt v Merchants Desp. Transp. Co. (270 NY 287), where the plaintiff alleged that the inhalation of dust while in the defendant’s employ caused him to contract the disease known as pneumoconiosis, this court held that the statutory period of limitations began to run when the plaintiff inhaled the foreign substance. This principle was later reaffirmed in Schwartz v Heyden Newport Chem. Corp. (12 NY2d 212, cert den 374 US 808), involving a compound inserted into the plaintiffs’ sinuses for the purpose of making them more perceptible in x-ray examination. Accordingly, if this rule is still controlling, each of the causes of action brought by plaintiffs is barred by the Statute of Limitations. Plaintiffs now urge, however, that the Statutes of Limitations applicable to their cases should not run from the date of the last exposure to the invading substance, but rather from the date on which the asbestos-related disease was or could have been discovered. We are unable to adopt this proposed standard, and we reaffirm the principle announced in Schmidt and followed in Schwartz. Only recently, in Thornton v Roosevelt Hosp. (47 NY2d 780), where it was alleged that a thorium dioxide substance manufactured by the defendant and injected into the deceased plaintiff resulted in the onset of cancer, we held that “the cause of action accrued at the time of invasion of decedent’s body, and not at the time” the condition became apparent. There, we noted that further extension of the limited discovery provision contained within the CPLR (214-a) was a matter best reserved for the Legislature, and not for the courts. We believe it to be inappropriate and injudicious to intrude into an area best suited for legislative scrutiny. We have considered plaintiffs’ other contentions and find them to be without merit.

Fuchsberg, J.

(dissenting). The orders appealed from in these cases should be reversed and the motions for summary judgment denied.

Once again we are confronted with a determination that plaintiffs who, alleging tortious wrongdoing as a result of which they were injured, are held to have been barred by the Statute of Limitations before they learned or could have learned that they had sustained the injuries of which they complain.

Though to state this proposition would appear to be to refute it, the majority, under what it takes to be the restraint of three cases, Schmidt v Merchants Desp. Transp. Co. (270 NY 287), Schwartz v Heyden Newport Chem. Corp. (12 NY2d 212) and, most recently, Thornton v Roosevelt Hosp. (47 NY2d 780), a decision in which I filed a dissent, in effect upholds it.

In my view, the cases cited are too confusing and contradictory to support such a result. For example, in Schmidt, though the court held that dust which produced a disease of the lungs set off the running of the statute when it was ingested rather than when the injury came to the fore, the court, inexplicably, also proclaimed (at p 300) that “There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury” (emphasis added). Further, in the relatively short time which has elapsed since Thornton was decided, the Legislature already has issued policy pronouncements that cut across the legal philosophy they bespoke. In such circumstances, the vitality of Judge-made law depends in no small measure upon a readiness to have the judiciary, and not the Legislature, as Thornton and the majority memorandum in this case suggest, make its own corrections.

The underlying principle is hornbook law. As Dean Prosser put it, “the statute of limitations does not begin to run against a negligence action until some damage has occurred” (Prosser, Law of Torts [4th ed], p 144). Or, as was acknowledged with apparent reluctance in Schwartz, “Since, then, the recognized damages in negligence cases are pain and suffering, loss of earnings and, we suppose, damage to the structure of the body, it is questionable whether any cause of action exists before these things actually happen” (Schwartz, swpra, at p 217).

In this court, contrary rulings have troubled its Judges, and, ultimately, have been repudiated by the court as a whole. So, in Schwartz, itself, a strong dissent by Chief Judge Desmond and Judge (later Chief) Judge Fuld left no room for misunderstanding when it warned that “it would be unreasonable and perhaps unconstitutional to hold that his time to sue expired before it was possible for him to learn of the wrong” (Schwartz, supra, at p 219). And, the clarion clear comment that “it is all but unthinkable that a person should be time-barred from prosecuting a cause of action before he ever had one”, first made by Judge (later Chief Judge) Breitel in dissent in Mendel v Pittsburgh Plate Glass Co. (25 NY2d 340, 346), was later to be adopted by the whole court in Victorson v Bock Laundry Mach. Co. (37 NY2d 395, 401).

Guided by these beacons, I now turn to the opposing positions on which summary judgment turned. The defendants’ needs no elaboration; it is simply that the actions arose when each of the plaintiffs breathed the asbestos-laden air, that is, at the time of exposure. If this contention is credited, of course, the wrongful conduct and ensuing damages for all practical purposes would have been simultaneous. But the plaintiffs do not agree; they insist that the scientific facts are at odds with this unified concept. Pointing to medical authority, they contend that, while the unwanted invasions of their lungs by environmental air which had been contaminated by asbestos dust are the wrongful acts to which they were subjected, the damages they sustained were in the form of diseases which did not come about until much later. From this exposition, the diseases, asbestosis and mesothalioma, the latter a cancer of the mesothelial cells which surround the organs of the chest cavity, are said to be consequential, as distinguished from immediate, in their temporal character (see, also, Urie v Thompson, 337 US 163,170 [“consequences of the exposure are the product of a period of time rather than a point of time”]).

The plaintiffs go on to assert that the properties of particles of asbestos are such that their inhalation will not necessarily result in the contraction of the disease; that, unlike chemical compounds, the particles do not break down into reactive elements when lodged in the body; that those who are exposed may never sustain any injury at all; that, even if a cancerous tumor later forms, it will not have begun to do so at the time of exposure; that, before such an event will occur, the asbestos may lay dormant for years; and that the future time when it may develop is unpredictable.

In this apposition the Statute of Limitations question is not one presenting a choice, as the majority would have it, between the times of inhalations and the times of discovery of the subsequent disease. Were that so, absent a discovery rule, the defendants’ motions would indeed have had to have been granted. But, since the issue of fact fleshed out by the motions instead left it a case of dates of inhalation versus dates when the damaging disease came into existence, the question was one for triers of fact.

It follows that the orders of the Appellate Division must be reversed and the cases remitted for trial on the merits.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, and Wachtler concur in memorandum; Judge Meyer concurs on constraint of Thornton v Roosevelt Hosp. (47 NY2d 780); Judge Fuchsberg dissents and votes to reverse in an opinion.

Order affirmed.

       As the dissent recognizes, the Legislature has acted but has so far gone no further than “Agent Orange” cases.

       In amending CPLR 214, which details the various Statutes of Limitations, the Legislature, at its last regular session, included the following statements in its formal legislative findings: “It was never the intent of the legislature in imposing limitations, to foreclose the citizens of this state from prosecuting legitimate claims, provided such claims are diligently and expeditiously pursued. An exception to the general period of limitation rule is required when the pathological effect of an injury occurs without perceptible trauma, and the victim is blamelessly ignorant of the cause of the injury” (L 1981, ch 266).
      True, in the compromising fashion of legislative bodies (see O’Malley v Macejka, 44 NY2d 530, 533-534), these declarations were made applicable to “Agent Orange” cases alone. But, as with other social catalysts, what it accelerated was a return in this area to the mainstream of legal thought.


text:
    In the Matter of Richard Sebastiano, Appellant, v David R. Harris, as Superintendent of the Green Haven Correctional Facility, et al., Respondents.
    Argued October 21, 1981;
    decided October 29, 1981

      APPEARANCES OF COUNSEL

      Robert Selcov and David Leven for appellant.

      Robert Abrams, Attorney-General (Frederick R. Walsh and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (76 AD2d 1004).

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


text:
    The People of the State of New York, Appellant, v Charles Chessman, Respondent.
    Argued October 14, 1981;
    decided October 29, 1981
    APPEARANCES OF COUNSEL

      Denis Dillon, District Attorney (Martin I. Saperstein and William C. Donnino of counsel), for appellant.

      Michael J. Obus and Matthew Muraskin for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

The Appellate Division (p 195), after stating its primary reason for reversal, said: “this error was further compounded by the court’s total failure * * * to marshal the evidence”. In view of the fact that this latter point had not been preserved for review, the court’s determination was necessarily predicated at least in part upon an exercise of discretion and thus is not appealable to this court (see People v Dercole, 52 NY2d 956; 957; People v Johnson, 47 NY2d 124, 126). This is so despite the fact that the primary basis for the Appellate Division reversal relating to the charge concerning intent was properly preserved for review.

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

Appeal dismissed in a memorandum.


text:
    In the Matter of Shirley French, Appellant, v Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Decided October 29, 1981

      APPEARANCES OF COUNSEL

      Pamela Fasick for appellant.

      Robert Abrams, Attorney-General (Clifford A. Royael of counsel), for Barbara Blum, as Commissioner of the New York State Department of Social Services, respondent.

      Robert I. Williamson, County Attorney (Paul N. Tavelli of counsel), for Robert Wagner, as Commissioner of the Tompkins County Department of Social Services, respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and the judgment of Supreme Court, Tompkins County, reinstated. The Appellate Division erred, as a matter of law, in confirming respondents’ determination reducing petitioner’s monthly grant of public assistance in disregard of the provisions of the regulations of the Department of Social Services (18 NYCRR 352.31 [d]; see Matter of Goloty v Smith, 70 AD2d 642; Matter of Hetrick v Reed, 60 AD2d 761; Matter of Badame v Berger, 55 AD2d 931).

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


text:
    Clara Galus, Individually and as Executrix of Philip Galus, Deceased, Appellant, v William Milner, Respondent, et al., Defendant.
    Decided October 29, 1981

      APPEARANCES OF COUNSEL

      Daniel H. Mahoney for appellant.

      James M. Conboy for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. We cannot say that the order reinstating the jury’s verdict was an abuse of discretion as a matter of law (Holland v Blake, 31 NY2d 734).

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


text:
    The People of the State of New York, Respondent, v Andrew Rivera, Appellant.
    Argued October 16, 1981;
    decided October 29, 1981
   Appeal dismissed upon the ground that the Appellate Division determination of reversal was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a] ; People v Lucas, 53 NY2d 678, 682; cf. People v Albro, 52 NY2d 619).


text:
    Enrico di Portanova et al., Appellants, v American Broadcasting Company, Inc., et al., Respondents.
    Decided October 29, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    Mary Eaton et al., Appellants, v Equitable Life Assurance Society of the United States, Inc., et al., Defendants, and Marine Midland Bank, Inc., Respondent.
    Submitted September 14, 1981;
    decided October 29, 1981
   Motion to dismiss appeal denied.


text:
    The People of the State of New York ex rel. Jean Francois, Appellant, v Supreme Court of the State of New York, Respondent.
    Submitted October 19, 1981;
    decided October 29, 1981
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right (CPLR 5601). Motion for leave to appeal denied. Motion for assignment of counsel dismissed as academic.


text:
    In the Matter of Harold Konigsberg, Appellant, v John J. Clyne, as County Court Judge, et al., Respondents. In the Matter of Harold Konigsberg, Appellant, v John J. Clyne, as County Court Judge, Respondent.
    Submitted September 7, 1981; decided
    October 29, 1981
   Motion by respondent District Attorney to dismiss appeal granted and, insofar as taken from Appellate Division order entered August 6, 1981 which, inter alia, denied petitioner’s motion for reargument, appeal dismissed, without costs, upon the ground that said order does not finally determine the proceeding within the meaning of the Constitution; insofar as deemed taken from Appellate Division order dated May 29, 1981 which dismissed petitioner’s prohibition proceeding, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion by respondent District Attorney to dismiss appeal from Appellate Division order entered August 6, 1981 which dismissed petitioner’s mandamus proceeding granted and said appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion by petitioner to consolidate the appeals and to prosecute the appeals on the original papers dismissed as academic.


text:
    In the Matter of the Claim of Thompson B. McCune, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Decided October 29, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not aggrieved by the modification at the Appellate Division. (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Roald Ozols, Appellant, v Earle B. Henley, Jr., et al., Constituting the Planning Board of the Town of Newcastle, Appellants.
    Decided October 29, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 11).


text:
    In the Matter of Peter Pastrana, Appellant, v Edward A. Baker, as County Court Judge, et al., Respondents.
    Submitted October 19, 1981;
    decided October 29, 1981
   Motion to vacate the Court of Appeals order of dismissal dated September 30, 1981 granted, appellant to file 20 copies of his brief on or before November 16, 1981. [See 54 NY2d 834.]


author: Chief Judge Cooke.

text:
    The People of the State of New York, Respondent, v Samuel Tucker, Also Known as Henry Perry, Appellant.
    Argued October 23, 1981;
    decided December 22, 1981

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (Thomas J. Fox of counsel), for appellant.
    I. The robbery conviction must be reversed because the jury’s guilt and nonguilt findings were internally self-contradictory and repugnant. (People v Carbonell, 40 NY2d 948; People v Dercole, 72 AD2d 318, 52 NY2d 956; People v Kass, 74 Misc 2d 688, 32 NY2d 856; Dunn v United States, 284 US 390; Steckler v United States, 7 F2d 59; Sealfon v United States, 332 US 575; Ashe v Swenson, 397 US 436; United States v Martorano, 557 F2d 1; People v McEaddy, 30 NY2d 519; People v Robert YY, 58 AD2d 920.) II. The court’s intent instruction deprived appellant of due process; this error is reviewable despite there having been no objection. (Sandstrom v Montana, 442 US 510; People v Getch, 50 NY2d 456; People v Patterson, 39 NY2d 288, 432 US 197; People v Thomas, 50 NY2d 467; People v Marr, 50 NY2d 456.)

      Donald O. Chesworth, Jr., District Attorney (Melvin Bressler and David L. Pogue of counsel), for respondent.
    I. The verdict of guilty on two robbery counts was not repugnant to the verdict of acquittal on another robbery count having different elements and different burdens of proof. (People v Gibson, 65 AD2d 235; People v Gross, 51 AD2d 191; People v Ramos, 50 AD2d 823; People v Mitchell, 64 AD2d 119; People v Smith, 61 AD2d 91; People v Speach, 49 AD2d 210; People v McEaddy, 30 NY2d 519; People v Stokes, 58 AD2d 846; People v Tucker, 47 AD2d 583; People v Acevedo, 40 NY2d 701.) II. Having failed to raise an objection at trial to the Judge’s instruction concerning intent, defendant is now precluded from raising the issue in this court; the Trial Judge’s instruction on intent, when viewed in light of his entire instruction concerning the burden of proof, was proper under the facts of this case. (People v Dercole, 52 NY2d 956; People v Johnson, 47 NY2d 124; Sandstrom v Montana, 442 US 510; People v Patterson, 39 NY2d 288; People v Thomas, 50 NY2d 467; People v Green, 50 NY2d 891; People v Marr, 50 NY2d 456; People v Migliaccio, 77 AD2d 575; People v Fournier, 70 AD2d 491.)
   OPINION OF THE COURT

Chief Judge Cooke.

When there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. Review of the entire record in an attempt to divine the jury’s collective mental process of weighing the evidence is inappropriate.

Defendant was convicted on two counts of robbery and one count of possession of a loaded handgun. He was acquitted on two other counts of robbery. Defendant proposes that if all the verdicts were reviewed, it would be clear that the jury acted inconsistently and that the trial court should have vacated the two robbery convictions in addition to the possession conviction that was vacated.

The essence of the prosecution’s case was that defendant, his brother Willie, and another man entered the house of Ann Johnson and robbed her at gunpoint. Johnson identified defendant as the one who wielded the gun during the robbery. Police Officer Martin Lauchlan was on patrol when he saw three men run out of Johnson’s house, followed by a woman screaming for help. Lauchlan gave chase and managed to arrest Willie, who was found to have a loaded revolver in his front pocket. Willie provided defendant’s name and stated that the defendant had placed the gun in his pocket while they fled Johnson’s residence. The defendant was subsequently arrested at his home, where he volunteered the statement “You ain’t got nothing on me, you got the gun from Willie.” The seized revolver was tested and found operable.

Defendant presented evidence to show that it was not he, but the third man, who displayed the gun during the robbery and then placed it in defendant’s brother’s pocket.

Defendant was indicted as principal and accomplice on six counts, all of which were submitted to the jury. The counts charged and their material essential elements were:

Count Charge Elements

1 Robbery, First Degree Forcibly Steals Armed with Property a Deadly Weapon

2 Robbery, First Degree Forcibly Steals Used or Property Threatened Use of a Dangerous Weapon

3 Robbery, First Degree Forcibly Steals Displayed What Property Appeared to be a Handgun

4 Robbery, Second Degree Forcibly Steals Aided by Another Property Person Actually Present

5 Grand Larceny, Third Degree Steals Property Taken From Person of Another

6 Criminal Possession of Weapon, Third Degree Possession of Loaded Firearm

Defendant was convicted on counts 3, 4 and 6, and acquitted on counts 1 and 2. He moved to set aside the guilty verdicts as repugnant to the acquittals on counts 1 and 2. As the jury had been instructed not to reach a verdict on count 5 if they convicted on any of the first four counts, no claim of repugnancy was made on the basis of that differing result.

Supreme Court ruled that there was no repugnancy between the verdicts on counts 1 through 4, but that a guilty verdict on count 6 was repugnant to acquittal on counts 1 and 2. The trial court reasoned that each of the robbery counts involved different elements so that one could be found guilty or not guilty on the various charges without any inconsistency. However, that court continued, it is illogical to acquit on the first two robbery counts, but find that the defendant possessed a loaded handgun at the time. Consequently, the jury’s verdict was sustained except as to count 6, which was set aside. The Appellate Division unanimously affirmed, without opinion.

On appeal, defendant argues that the jury’s acquittal on the first two counts, when considered with the conviction on the sixth count, must have been based on a determination that no “forcible stealing” occurred. On this foundation, the verdicts on counts 3 and 4 would have to be rejected as an essential element of each crime would have been negated. Defendant’s argument is not persuasive.

The problem of repugnant, or inconsistent, verdicts has long plagued the common law. Many jurisdictions precluded any judgment of conviction if the verdicts were inconsistent (see Comment, Inconsistent Verdicts in a Federal Criminal Trial, 60 Col L Rev 999, 1001, and ns 12-15). American courts have divided on the question, with the majority accepting that the conviction is valid, albeit inconsistent (id., at pp 1001-1002, and ns 16-18).

Whether verdicts are described as “repugnant” or “inconsistent” is substantively inconsequential and so the two terms are used interchangeably here. The critical concern is that an individual not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all. Allowing such a verdict to stand is not merely inconsistent with justice, but is repugnant to it.

The genesis of repugnancy problems lies in the submission to the jury of alternative theories of guilt, in the form of different counts, based upon the same evidence. The problem often occurs when the jury convicts the defendant on one count and acquits on another, but the verdicts are illogical when viewed in light of the proof adduced. The difficulty stems from the jury’s implicit finding that the essential elements of one crime were proven, while one or more of the same elements were not proven for the other crime.

There exist two approaches for determining whether jury verdicts are repugnant. The first would have the court review the record in toto so as to consider all the evidence and discover the underlying basis of the jury’s determination, whereupon the reviewing court can determine the logic or illogic of the verdicts and remedy the repugnancy when it exists. The second approach is more limited, looking to the record only to review the jury charge so as to ascertain what essential elements were described by the trial court; then, the assertedly inconsistent verdicts will be harmonized on the basis of the jury charge. Under this approach, a conviction will be reversed only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered (see Wax, 24 NY L School L Rev, at pp 740-742).

There is a compelling policy reason for preferring the second method of analysis. The first approach, by its very nature, requires the court to intrude into the jury’s deliberative process by speculating on how the jury perceived and weighed the evidence. The court’s reluctance to do so is generally reflected by limiting attacks on jury verdicts to showing improper influence, while excluding for purpose of impeachment “proof of the tenor of [the jury’s] deliberations” (People v Brown, 48 NY2d 388, 393). The problems of second-guessing are compounded by the possibility that the jury has not necessarily acted irrationally, but instead has exercised mercy (Dunn v United States, 284 US 390, 393-394; People v Berkowitz, 50 NY2d 333, 346). When the jury has decided to show lenity to the defendant, an accepted power of the jury (see Dunn v United States, 284 US 390, supra; Bickel, Judge and Jury — Inconsistent Verdicts in the Federal Courts, 63 Harv L Rev 649, 651-652), the court should not then undermine the jury’s role and participation by setting aside the verdict.

Thus, the record should be reviewed only as to the jury charge. Even that review of the jury charge will be restricted in its scope. It does not contemplate a consideration of the accuracy of the charge (see Wax, 24 NY L School L Rev, at pp 740-741). The instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict.

Proceeding to the case now before this court, defendant’s convictions for robbery can be affirmed only if there was a basis for distinguishing among the various “weaponry” elements of counts 1, 2, 3 and 6. These elements are set forth in the following chart:

Count Element Definition

1 “Armed with a deadly weapon” Weapon used was loaded and capable of being fired (Penal Law, § 10.00 subd 12)

2 “Used or threatened use of dangerous instrument” Under the circumstances in which it is used, attempted to be used, or threatened to be used, weapon is readily capable of causing death or serious physical injury (Penal Law, § 10.00, subd 13)

3 “Display of what appeared to be a handgun’ Self-explanatory; affirmative defense that gun is inoperable (Penal Law, § 160.15, subd 4)

6 “Possession of a loaded firearm” Operable gun; live ammunition in gun or held on person (Penal Law, § 265.00, subd 15)

The instructions to the jury closely matched the basic definitions provided above. The only material discrepancy was that the court did not explain that a conviction on the sixth count would be inappropriate unless the jury found that the gun was operable.

Once it begins its deliberations, the jury may freely reject evidence and exercise its mercy function. It could find, however illogically, that the gun’s capability to fire was not proven. Not having been instructed that the capability to fire is also ;an essential element of the possession charge, there would be no inherent inconsistency in the acquittals on counts 1 and 2, both of which require a finding of operability, and the conviction on count 6.

As each count is treated separately with the varying burdens and degrees of proof being taken into consideration, there is no incompatibility between the verdicts on the issue of operability. In considering counts 1 and 2, the jury could conclude that the prosecutor failed to prove beyond a reasonable doubt that the gun was capable of firing, and therefore acquit. The jury could also conclude without self-contradiction that the People had carried its burden in proving that defendant displayed what appeared to be a handgun, necessary to count 3, but that defendant had failed to prove by a preponderance of the evidence that it was inoperable.

Of course, in terms of the essential elements of the underlying charges, the verdicts on counts 1 and 6 are inconsistent when viewed in light of the convictions on counts 3 and 4. Implicit in the robbery convictions was a finding that defendant forcibly stole property. The acquittal on count 1, then, would require that the jury concluded that the prosecutor failed to prove that the gun was either loaded or operable. Thus, a conviction on count 6 would be legally inconsistent as the jury would have to have found that the gun was loaded and operable. As noted, however, the jury was not adequately apprised of the legal elements necessary to support a conviction on count 6 and thus no actual inconsistency is presented on this record. Defendant, therefore, was not entitled to dismissal of the robbery counts.

Defendant also assigns error to the jury instructions. Defendant admittedly failed to object to the instruction at trial. Consequently, that issue is not preserved (People v Thomas, 50 NY2d 467).

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . Some have distinguished between “repugnancy” and “inconsistency” by the extent to which the essential elements of the crimes charged are identical (see People v Bullis, 30 AD2d 470, 472; Wax, Inconsistent and Repugnant Verdicts in Criminal Trials, 24 NY L School L Rev 713, 716-717).

        . For example, a defendant is charged with two crimes: charge 1 requires proof of elements A, B and C; charge 2 requires proof of elements A, B, C and D. A conviction on charge 2 would be repugnant to an acquittal on charge 1 as the latter verdict would necessarily involve a finding that at least one of the essential elements of charge 2 was not proven.

      . It should also be noted that what is involved in the instant case is only the situation where a jury renders inconsistent verdicts. Different considerations may be present when the trier of fact is the Judge (see United States v Maybury, 274 F2d 899; Comment, 60 Col L Rev, at pp 1006-1007; Wax, 24 NY L School L Rev, at p 736, and n 88). As the issue is not now before this court, there is no occasion to consider it.

      . In enunciating this rule, the court is not making any departure from its prior practice. In People v Haymes (34 NY2d 639, cert den 419 US 1003), the trial record was reviewed to determine “that the jury did not understand” a portion of the charge (34 NY2d, at p 640). And in People v Carbonell (40 NY2d 948), the conviction was vacated and the indictment dismissed because “[t]he jury verdict was internally self-contradictory both logically and pursuant to the charge of the court”. Today’s decision only makes clear that review of the “entire record” (People v Haymes, supra, at p 640) is limited to a review of the jury instructions. Whatever the terminology used to characterize the verdict, whether inconsistent or repugnant or otherwise, the legal consequences are to be determined only on the basis of such review.

      . Of course, this is not to say that the jury instruction will govern whether a conviction is proper without regard for the statutory elements of the crime. This, however, is a problem of proof, not repugnancy.

      . Inasmuch as the jury was not instructed that criminal possession of a loaded firearm requires the gun to be operable, it must be deemed to have made no finding as to that element in convicting on count 6. Consequently, its decision on that count is not considered here.

      . No appeal having been taken by the People as to the propriety of the dismissal of count 6, we do not pass on it.