author: Bellacosa, J.

text:
    [670 NE2d 977, 647 NYS2d 476]
    The People of the State of New York, Appellant, v James Trueluck, Respondent.
    Argued June 6, 1996;
    decided June 28, 1996

      POINTS OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Mark Brisman, Joseph N. Ferdenzi and Billie Manning of counsel), for appellant.
    Defendant’s waiver of prosecution by indictment was proper in all respects. (People v D'Amico, 76 NY2d 877; People v Menchetti, 76 NY2d 473; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; People v Boston, 75 NY2d 585; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Matter of King v Cuomo, 81 NY2d 247.)

      Paul Liu, New York City, and Daniel L. Greenberg for respondent.
    Respondent’s plea to a superior court information was a nullity because he purported to "waive” indictment where he was being held for Grand Jury action on a class A felony. (People ex rel. Battista v Christian, 249 NY 314; Matter of Simonson v Cahn, 27 NY2d 1; People v Calbud, Inc., 49 NY2d 389; People v Iannone, 45 NY2d 589; People v Carroll, 3 NY2d 686; People v D’Amico, 76 NY2d 877; People v Menchetti, 76 NY2d 473; People v Woolson, 195 AD2d 949; People v Murphy, 147 AD2d 715; People v Marty, 150 AD2d 171.)
   OPINION OF THE COURT

Bellacosa, J.

This appeal involves another variation in the use of superior court informations to prosecute and quickly conclude criminal proceedings by negotiation and guilty plea. Such instruments are used in place of an indictment and the otherwise constitutionally required Grand Jury process. Since 1974, article I, § 6 of the State Constitution and CPL 195.10 permit an accused to waive indictment and plead guilty to charges under carefully prescribed and limited conditions. The circumstances of this case do not qualify for the alternative waiver of indictment authorization.

Defendant was charged in a felony complaint with murder in the second degree (Penal Law § 125.25 [1]) and various criminal weapon possession counts arising out of a fatal shooting in 1993. He was held on this complaint for action by a Grand Jury. Meanwhile, defendant and the People negotiated a plea package. Defendant was to plead guilty to lesser offenses (manslaughter in the first degree as the highest and most serious count) in connection with the 1993 homicide and also plead guilty to lesser charges in satisfaction of a separate, unrelated indictment. Concurrent sentences with maximum 25-year terms of incarceration were then to be imposed.

To effectuate this agreement, the People prepared and filed a superior court information, charging defendant with manslaughter in the first degree and criminal use of a firearm in the first degree. No indictment on any criminal conduct involving the 1993 incident was ever sought or obtained. At a court appearance on the superior court information, the terms of the plea agreement were discussed and defendant waived indictment. The voluntariness and technical execution of this waiver are not at issue. He pleaded guilty to the charges contained in the information and was sentenced in accordance with the agreement.

The Appellate Division reversed. It found the waiver of indictment procedure unavailable and invalid in these circumstances, as have the other three Departments of the Appellate Division in resolving parallel fact patterns (see, People v Murphy, 147 AD2d 715, 716-717 [2d Dept]; People v Sledge, 90 AD2d 588, 589 [3d Dept]; People v Woolson, 195 AD2d 949, 950 [4th Dept]; see also, People v Marty, 150 AD2d 171, 172 [1st Dept]). The People’s appeal is here by leave granted by a Judge of this Court.

New York State’s Constitution provides that no person shall be made to answer for a capital or infamous crime except upon indictment by a Grand Jury (NY Const, art I, § 6). For a long time, neither a guilty plea (People ex rel. Battista v Christian, 249 NY 314, 321 [1928]) nor a waiver of indictment (Matter of Simonson v Cahn, 27 NY2d 1) could obviate this constitutional prerequisite and protection.

In November 1973, the State Constitution was amended to provide a carefully circumscribed exception to the indictment requirement, upon two separate Legislatures having passed the precise language and the electorate of the State voting approval (1973 NY Senate-Assembly Bill S-1838, S-2383, A-48; 1971 NY Assembly Bill A-6912; see, NY Const, art XIX, § 1). As amended, the Constitution provides that "a person held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney; such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his counsel” (NY Const, art I, § 6 [emphasis added]).

After approval of the constitutional provision, the Legislature enacted the implementing article 195 of the Criminal Procedure Law (see, L 1974, ch 467; see also, Mem of State Executive Dept, 1974 McKinney’s Session Laws of NY, at 2006). CPL 195.10 (1) states that a defendant may waive indictment and consent to be prosecuted (in practical terms, usually to proceed promptly to plead guilty and terminate the prosecution with a conviction) by a superior court information where (1) the local criminal court has held the defendant for the action of a Grand Jury, (2) the defendant is not charged with a class A felony, and (3) the District Attorney consents to the waiver of indictment.

Not in dispute here are the general purposes and objectives behind the constitutional amendment to allow defendants to obtain speedier disposition of pending criminal charges, while not infringing upon their constitutional protections (see, 1971 Public Papers of Governor Rockefeller, at 1151-1152). A waiver of indictment and a departure from the constitutional safeguard and procedural sine qua non is available, however, only within the express authorization of the governing constitutional and statutory exception. The general good end, then, does not justify specific "end run” means (see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 195.20, at 392-393). To hold otherwise would contradict the history and precedents that necessitated and led to this constitutional amendment in the first place and the as-applied precedents this Court has added to the mix after the 1974 change (see, People v Boston, 75 NY2d 585, 589; see also; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 195.10, at 385-386).

For example, this Court has held that a defendant’s waiver of indictment attempted after a Grand Jury actually indicts is generally invalid under CPL 195.10 (2) (b) because the plain words of the statute require a waiver be made "prior to the filing of an indictment” (People v Boston, supra, at 589). Neither the State Constitution nor statute requires, however, that a superior court information contain every offense appearing in the felony complaint (People v Menchetti, 76 NY2d 473, 477; but see, People v Zanghi, 79 NY2d 815, 818). In People v D’Amico (76 NY2d 877, 879), this Court held a waiver of indictment valid although defendant had already been indicted for a class A felony, because defendant’s waiver was to lesser charges contained in a new felony complaint upon which the defendant was being held (id., at 879). It, therefore, facially complied with the statute. We expressly reserved judgment on the permutation presented by the instant case (76 NY2d, supra, at 879, n 2).

The People now assert that because CPL 195.10 (1) (b) states that the waiver of indictment is permissible if "the defendant is not charged with a class A felony,” defendant’s waiver in this case should be upheld as an extension of the rationale of People v D’Amico (supra). We conclude that such an extension is neither justified nor warranted by the rationale of People v D’Amico, nor by the statutory language or its purpose. Rather, the People’s theory would constitute a direct contradiction of these governing principles.

The ready answer to the formalism argument of appellant People is that they can lawfully achieve their practical goals by simply complying with the Constitution and governing statutes instead of trying to "steer around” them (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 195.10, at 386, 387; CPL 195.20, at 392-393).

To be sure, the State Constitution in the overall is a lengthy and highly detailed document. While its largely non-self-executing rights are sometimes characterized as technicalities, they are, within a proper and reflective perspective, the embodiment of protections built on history and fair-minded principles that have withstood the test of time and experience. It is not too much to ask that the requirements be satisfied rather than evaded or eroded for the sake of situational expediency (see, People v Page, 88 NY2d 1).

Because CPL 195.10 was promulgated, as we have already pointed out, to implement the waiver provisions of article I, § 6 of the State Constitution, it must be interpreted consistently with the limitations plainly expressed in the constitutional authorization. People v D’Amico provides the most recent context for analyzing this development and drawing the appropriate line: "The waiver procedure is triggered by the defendant being held for Grand Jury action on charges contained in a felony complaint (CPL 195.10 [1] [a]) and it is in reference to those charges that its availability must be measured” (People v D’Amico, 76 NY2d 877, 879, supra). The inescapable language of the State Constitution and its directly implementing statute establish the authorizing boundary: when an accused is held for Grand Jury action upon a felony complaint that charges a class A felony, as here, a waiver of indictment with respect to that felony complaint is unauthorized (see, e.g., People v Woolson, 195 AD2d 949, 950, supra; People v Marty, 150 AD2d 171, 172, supra; People v Murphy, 147 AD2d 715, 716-717, supra; People v Sledge, 90 AD2d 588, 589, supra). That is the precise framework of this case. Here, the murder count in the felony complaint is a class A type (see, Penal Law §§ 125.25, 70.00 [2] [a]) that was neither reduced nor dismissed, nor was any superseding felony complaint with less than class A felony charges filed. The People’s proffered superior court information and defendant’s waiver, on their face, thus stretch beyond the drawn constitutional and statutory boundaries and our interpretive precedents.

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

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

Order affirmed.


source: Caselaw Access Project

author: Bellacosa, J. Titone, J.

license: Public Domain

text:
    [670 NE2d 980, 647 NYS2d 479]
    The People of the State of New York, Respondent, v Erick Clark, Appellant.
    Argued June 5, 1996;
    decided July 2, 1996

      POINTS OF COUNSEL

      Kevin F. Casey, New York City, and Daniel L. Greenberg for appellant.
    The trial court’s refusal to reopen the suppression hearing violated due process of law, where it was discovered that the testimony of the lone witness at that hearing had given materially false testimony. (People v Geaslen, 54 NY2d 510; People v Chipp, 75 NY2d 327, 498 US 833; People v Dixon, 85 NY2d 218; People v Rodriguez, 79 NY2d 445; People v Berrios, 28 NY2d 361; People v Ricks, 96 AD2d 788; People v Ramos, 207 AD2d 810; People v Dymond, 130 AD2d 799; People v Cronin, 60 NY2d 430; People v Farrar, 52 NY2d 302; People v Davis, 44 NY2d 269.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Ruth E. Ross and Roseann B. MacKechnie of counsel), for respondent.
    The trial court did not err in denying defendant’s motion to reopen the Wade hearing where the facts on which defendant relied in his motion did not indicate any suggestiveness in his identification or cast doubt on any of the facts essential to the hearing court’s initial decision and therefore were not "additional pertinent facts” necessitating a reopened hearing. (People v Dixon, 85 NY2d 218; People v Figliolo, 207 AD2d 679; People v Robinson, 183 AD2d 420; People v Geaslen, 54 NY2d 510; People v Ricks, 96 AD2d 788; People v Dymond, 130 AD2d 799; People v Ramos, 207 AD2d 810; Brady v Maryland, 373 US 83.)
   OPINION OF THE COURT

Bellacosa, J.

The sole issue on this appeal is whether the trial court acted within its legislatively prescribed discretion in denying defendant’s application to reopen its pretrial Wade determination (CPL 710.40 [4]; see, People v Fuentes, 53 NY2d 892). The Appellate Division affirmed defendant’s conviction for attempted robbery, after a jury trial, and a Judge of this Court granted leave to appeal. We conclude that the Appellate Division did not err in affirming the trial court’s ruling, which denied the application at trial to reopen the Wade hearing and determination.

At approximately 11:00 a.m. on April 20, 1992, victim Ronald Cuocolo was making a delivery at a warehouse in Brooklyn when he was accosted in an interior corridor. The perpetrator demanded money from him and when he refused, a struggle ensued during which Cuocolo was injured. The perpetrator fled the building with Cuocolo and other occupants who had been alerted to the incident in pursuit. During the brief chase, Cuocolo came upon police officers who joined the chase by following Cuocolo. When Cuocolo caught up to the perpetrator outside a vacant lot about two blocks from the attack, he motioned towards his attacker, who was standing on the sidewalk. The police then made the arrest.

The People properly notified defendant pursuant to CPL 710.30 (1) (b) that Cuocolo had identified the defendant in a "corporeal non-lineup.” Defendant by omnibus motion moved for suppression of the victim’s identification and a Wade hearing was granted.

The arresting officer was the only witness at the hearing. He testified that within 10 minutes after the robbery, the victim pointed out the accused by shouting, "That’s him. That’s him.” The officer recollected that the victim was in the back seat of the patrol car at that time. The hearing court denied suppression of the victim’s identification, finding no taint of police suggestiveness, and ruled that the victim could testify to the identification at trial. No question is raised concerning the correctness of this determination made after the hearing.

At the close of the People’s opening statement at trial, however, defendant orally renewed the motion to suppress the victim’s identification to be made at trial or, in the alternative, to reopen the Wade hearing. Defense counsel had become aware at that time that the victim had testified to the Grand Jury (as he later did at the trial as well) that he immediately initiated pursuit of the fleeing perpetrator, right after the attempted robbery and assault. He used his own car, with the police joining the uninterrupted chase within minutes and following in their patrol car.

Defense counsel claimed that the discrepancy between the transcript of the victim’s Grand Jury account of the chase and the arresting officer’s Wade hearing version warranted suppression or a reopened Wade hearing. This variation is the sole basis for the application. Notably, this circumstance and issue are materially distinguishable from People v Geaslen (54 NY2d 510), relied upon by the dissent in its analysis of and application to this appeal.

The trial court denied defendant’s motion essentially for the reason that the confusion was not "pertinent” to the issue of suggestiveness. It acknowledged, however, and weighed the differences between the two witnesses’ testimony, developed in procedurally distinct pretrial settings, concerning the location of the victim at the time he caught up to his attacker to make the street identification that led to the accused’s apprehension by the police.

CPL 710.40 (4) provides:

"//■ after a pre-trial determination and denial of the motion the court is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion, it may permit him to renew the motion before trial or, if such was not possible owing to the time of the discovery of the alleged new facts, during trial” (emphasis added).

The operative phrase, establishing the threshold consideration under this statute for this type of application seeking a Wade revisitation, is "additional pertinent facts.” In construing and applying this statutory prescription to the record of this case, this Court cannot say as a matter of law — as the dissent would — that the victim’s Grand Jury testimony compelled a grant of relief. The statute contains no mandate that such facts must be found to be outcome-determinative or "essential” nor is any other prescribed template required. To be sure, all such features may be considered within the ambit of the discretionary weighing reposed in the trial court in ruling on a CPL 710.40 (4) application.

We agree, without promulgating a rigid formula, that the particular standard of "additional pertinent facts” does not require defendant-movant in such circumstances to introduce facts which on their face establish the suggestiveness of the original street identification. The statutory standard does require, though, at least that the facts asserted be "pertinent” to the issue of official suggestiveness such that they would materially affect or have affected the earlier Wade determination (see, People v Newball, 76 NY2d 587, 590-591; People v Gissendanner, 48 NY2d 543, 552). Otherwise, the distinctive statutory standard would be no standard at all. The trial court did not abuse its discretion in finding that such pertinent facts were not tendered in this case, and the record and the statute do not compel a contrary conclusion and reversal as a matter of law.

As this Court stated in refusing to disturb the lower courts’ exercise of discretion under this very section in People v Fuentes (53 NY2d 892, supra), a "trial court may reopen a pretrial hearing if it ris satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant * * * with reasonable diligence before the determination’ of his pretrial application” (id., at 894 [emphasis added] [citation omitted]). To suggest here that this standard was met as a matter of law and that the victim-initiated and uninterrupted chase, culminating in the apprehension of this perpetrator was a police-arranged procedure (dissenting opn, at 559), as a matter of law also, compelling a reopening of the Wade hearing, goes well beyond what this record presented to the trial court and Appellate Division.

Thus, the Appellate Division, guided by this Court’s most pertinent and governing precedent, had a proper basis to affirm the trial court’s discretionary ruling as within the statutory range of its authority (People v Fuentes, supra; contrast, People v Dixon, 85 NY2d 218, 223-224 [where no Wade hearing whatsoever was initially afforded defendant]).

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

Titone, J.

(dissenting). I cannot join the majority’s conclusion that the application to reopen the Wade hearing was properly denied because defendant failed to raise new facts that were pertinent to suggestiveness. In my view, the obligation of a defendant under CPL 710.40 (4) to raise "additional pertinent facts” was met here by the Grand Jury testimony which undermined facts that were essential to the denial of the motion to suppress and called into question the outcome of the suppression hearing. Accordingly, I respectfully dissent.

Defendant was initially granted a Wade hearing to test whether any police suggestiveness tainted the victim’s out-of-court identification of him on the street shortly after the crime had occurred. Testimony provided by a prosecution witness at the hearing established that the police-arranged procedure involved a police-car canvassing of the neighborhood near the crime scene with the victim seated in the back seat of the patrol car. In describing the procedure at length, the police witness specifically stated that he and his partner placed the complainant in their police car and drove the complainant towards the area where he had been robbed, and that as they were driving the complainant yelled "There he goes” or "that’s him.” The officer stated that he then exited his car, stopped the person that the complainant had pointed to, waited for the complainant to exit the car and identify the individual stopped as the perpetrator, and then placed him under arrest. The defense extensively questioned the officer on this specific identification procedure to determine if it was tainted by any improper suggestion.

The officer’s testimony was fraught with inconsistencies about the victim’s statements to the police in the patrol car and he admitted that he was confusing this case with another. Defense counsel moved to suppress on the ground that the witness was so incredible and unreliable that "we are not even at the issue of suggestiveness.” The court found that no official suggestiveness tainted the identification and denied the motion to suppress, citing the facts that the complainant rode in the back of the police car and yelled out when he spotted defendant.

Defendant sought to reopen the Wade hearing after he learned during the prosecution’s opening that the complainant had testified in the Grand Jury that he, in fact, had not been riding in the police car, but instead was driving his own car during the canvassing procedure. During the Grand Jury proceedings, the complainant had testified that he was travel-ling in his car, that the police were following in the patrol car, and that he saw defendant "a short distance from the building.” He then testified: "I got out of the car, the police exited the car and then the police approached him.” It is not clear whether the complainant spoke before or after the police approached defendant.

The People contend that the new facts raised in support of defendant’s motion to reopen the Wade hearing were not "pertinent” within the meaning of CPL 710.40 (4) because "none * * * revealed even the slightest suggestiveness in the manner in which he was identified and thus did not afford any new basis for the suppression of his identification.” This claim misses the mark.

First, I do not believe that the facts brought forth by defendant need on their face establish the suggestiveness of the actual identification procedure to satisfy CPL 710.40 (4). 1 also cannot agree with the majority that the defendant seeking to reopen a Wade hearing should be required to show facts that are "pertinent” to the issue of official suggestiveness. Whether an identification procedure is tainted by suggestiveness is a determination that can only be made after a Wade hearing — the specific proceeding designed to elicit such facts — and not by testimony elicited at other hearings, such as Grand Jury proceedings, that are directed at the resolution of different issues. Thus, by engrafting onto the statute the requirement that the movant allege new facts that relate to police suggestion, the People and the majority here would prematurely place a burden of proof on the moving defendant that is nearly impossible to meet at that point in time.

In my view, the statutory requirement of "additional pertinent facts” is met where the newly discovered facts call into question the outcome of the proceeding or significantly undermine any of the facts that are essential or material to the hearing court’s determination on the defendant’s original motion. Defendant has met this burden.

The Grand Jury testimony did far more than merely cast doubt on the credibility of the officer who testified at the suppression hearing. Rather, the testimony calls into question the outcome of the hearing because it establishes that its focus was on an identification procedure that never occurred. The People attempt to minimize the significance of the new facts revealed by defining the two contradictory versions of the streetside point-out as differing in only "one detail” — that two cars were used instead of one. That single detail has great significance to defendant, however, because it indicates that he had no opportunity to test at a Wade hearing the identification procedure that was actually employed and which the majority here itself has characterized as "procedurally distinct” (see, majority opn, at 555).

Additionally, the suppression court’s assessment that no police taint affected the identification was based on the police officer’s testimony concerning conversations that purportedly took place in the police car between the testifying officer and the complainant. However, because the Grand Jury testimony revealed that a two-car canvassing was employed, those conversations could never have taken place and facts essential to the court’s determination of the motion were thereby undermined.

Indeed, there is no doubt that defendant would have been entitled to test the two-car canvassing procedure actually employed at a Wade hearing in the first instance. While it is true that a suppression motion may be summarily denied if the identification procedure was not "police-arranged” (see, People v Dixon, 85 NY2d 218, 222), that rule has no application to this case. The victim’s Grand Jury testimony here established that the police undertook canvassing measures to enable the victim to make an identification. Regardless of whether the victim was travelling in the police car or his own car, the fact remains that the police escorted the complainant to the crime scene and the procedure was orchestrated by police for the purpose of obtaining an identification of the suspect from the victim. Thus, the identification procedure was police arranged (id., at 223). That a canvassing in two cars rather than one presents less of an occasion for police suggestion provides no satisfactory reason to deny a Wade hearing because the two-car procedure is still police sponsored, and still affords an opportunity for official taint that the defendant has a right to test under CPL 710.60.

Additionally, the suppression motion could not have been summarily denied pursuant to CPL 710.60 (3) in the first instance because of any deficiencies in the factual allegations advanced in support of suppression. A defendant is normally "not in a position to know whether challengeable identification techniques were employed” (see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 710.60, at 278-279) and thus is not required to allege such facts in the moving papers (People v Dixon, 85 NY2d, at 222, supra; People v Mendoza, 82 NY2d 415, 429).

Accordingly, I believe that defendant has met his burden under CPL 710.40 (4) of showing that "additional pertinent facts have been discovered * * * which he could not have discovered with reasonable diligence before the determination of the motion.” Because the Grand Jury testimony of the complainant undermined the facts that formed the basis of the court’s denial of the motion to suppress and because defendant was never able to exercise his right under CPL 710.60 to subject the actual identification procedure employed to adversarial testing, further inquiry at a Wade hearing is warranted (People v Villanova, 179 AD2d 381). Thus, in my view, the trial court abused its discretion in denying defendant’s application to reopen the Wade hearing where it could not be determined without the benefit of a new hearing whether any police taint infected the actual identification procedure.

Chief Judge Kaye and Judges Simons, Smith and Levine concur with Judge Bellacosa; Judge Titone dissents in a separate opinion in which Judge Ciparick concurs.

Order affirmed.

      . The trial court here erroneously concluded that it was precluded from considering the complainant’s Grand Jury testimony as "additional pertinent facts.” In fact, in People v Geaslen (54 NY2d 510), this Court relied on a witness’ Grand Jury testimony in ordering a new suppression hearing where that testimony was inconsistent with a parole officer’s suppression hearing testimony which had served as the basis for the trial court’s denial of the motion.

      . By holding that the newly discovered facts must be pertinent to the issue of suggestiveness, the Court suggests that the burden can only be met where facts are revealed that indicate improper police conduct — even though those facts cannot be known without the benefit of a Wade hearing. Such a requirement would preclude reopening of a Wade hearing, for example, where new facts show that an identification procedure previously believed to have been initiated solely by the witness was, in fact, police sponsored, but the defendant did not know at the time of the application to reopen whether any improper police conduct tainted the actual identification. Surely such a restrictive interpretation of CPL 710.40 (4) could not have been intended.


author: Titone, J.

text:
    [670 NE2d 1328, 647 NYS2d 697]
    The People of the State of New York, Respondent, v Juan Vasquez, Appellant. The People of the State of New York, Respondent, v John P. Dalton, Appellant. The People of the State of New York, Respondent, v Randy Adkinson, Appellant.
    Argued June 5, 1996;
    decided July 2, 1996

      POINTS OF COUNSEL

      Kimberlianne Podlas and Daniel L. Greenberg, New York City, for appellant in the first above-entitled action.
    I. The court’s refusal to allow the defense to introduce into evidence or to use on cross-examination the 911 tape and transmission which stated that an African-American man rather than a Latino man like appellant, was the shooter, deprived appellant of his right to present a defense and due process. (People v Brown, 80 NY2d 729; People v Buie, 86 NY2d 501; Chambers v Mississippi, 410 US 284; Lee v Illinois, 476 US 530; People v Thomas, 68 NY2d 194; People v Brensic, 70 NY2d 9; People v Gerdvine, 210 NY 184; People v Morales, 37 NY2d 262; People v Favor, 82 NY2d 254; People v Pepper, 53 NY2d 213.) II. The court’s refusal to deliver an adverse inference charge as a sanction for the destroyed Rosario material which contained a description of the perpetrator, deprived appellant of a fair trial. (People v Wallace, 76 NY2d 953; People v Rosario, 9 NY2d 286; People v Quinones, 139 AD2d 404, 73 NY2d 988; People v Ranghelle, 69 NY2d 56; People v Gilligan, 39 NY2d 769; People v Malinsky, 15 NY2d 86; People v Martinez, 71 NY2d 937; People v Haupt, 71 NY2d 929; People v Joseph, 86 NY2d 565.) III. The prosecutor’s repeatedly eliciting evidence of appellant’s pretrial incarceration denied appellant due process. (Estelle v Williams, 425 US 501; People v Roman, 35 NY2d 978; Hernandez v Beto, 443 F2d 634; People v Mixon 120 AD2d 861; People v Gonzalez, 115 AD2d 899; People v Harper, 47 NY2d 857; People v Ventimiglia, 52 NY2d 350; People v Connor, 137 AD2d 546; People v Pelt, 161 AD2d 284.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Susan Gliner and Robert M. Raciti of counsel), for respondent in the first above-entitled action.
    I. The trial court properly denied defendant’s application to introduce a 911 tape under the present sense exception to the hearsay rule. Additionally, neither the prosecutor’s direct ex-animation of the police witnesses, nor any of the evidence adduced from those witnesses, "opened the door” to admission of the tape. In any event, since defendant’s guilt was proven by overwhelming evidence, the failure to admit the tape, even if erroneous, was completely harmless. (People v Brown, 80 NY2d 729; People v Buie, 86 NY2d 501; People v Leslie, 210 AD2d 80; People v Crimmins, 36 NY2d 230.) II. Defendant has not supplied a record sufficient to enable this Court to evaluate his Rosario claim, nor has he preserved his claim of prejudice. (People v Wallace, 76 NY2d 953; People v Martinez, 71 NY2d 937; People v Haupt, 71 NY2d 929; People v Valentine, 160 AD2d 325, 76 NY2d 797; People v Rosado, 160 AD2d 505; People v Williams, 165 AD2d 839, 78 NY2d 1087; People v Ford, 211 AD2d 438.) III. The trial court properly exercised its discretion when it permitted the prosecutor to cross-examine a defense witness about his contact with defendant subsequent to defendant’s arrest, in order to place in context the witness’s failure to contact the authorities. No error occurred when those questions inadvertently revealed that defendant had been incarcerated at one point pending trial. (People v Dawson, 50 NY2d 311; People v Schwartzman, 24 NY2d 241, 396 US 846.)

      George W. Albro and Daniel L. Greenberg, New York City, for appellant in the second above-entitled action.
    The court’s preclusion of the tape of appellant’s desperate and emotional 911 call, made immediately after the shooting, which constituted critical evidence on the issues of whether he intended to kill the deceased and was justified in shooting him, deprived appellant of the rights to present a defense and to a fair trial. (Crane v Kentucky, 476 US 683; People v Hudy, 73 NY2d 40; People v Steele, 26 NY2d 526; People v Padgett, 60 NY2d 142; People v Ellison, 128 AD2d 720; People v Levan, 295 NY 26; People v Buie, 86 NY2d 501; People v Lewis, 69 NY2d 321; Chambers v Mississippi, 410 US 284; Lee v Illinois, 476 US 530; People v Thomas, 68 NY2d 194.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Anthea H. Bruffee and Roseann B. MacKechnie of counsel), for respondent in the second above-entitled action.
    This case presents affirmed findings of fact which are beyond the scope of this Court’s review. In any event, the Court below correctly upheld the trial court’s determinations that defendant’s statements to the 911 operator were not excited utterances or present sense impressions. Moreover, they did not bear on defendant’s state of mind at the time of the shooting. Therefore, the trial court’s evidentiary ruling did not deny defendant his right to present a defense. In any event, any error in the trial court’s ruling was harmless. (People v Greene, 64 NY2d 850; People v Collins, 60 NY2d 214; People v Wilson, 64 NY2d 634; People v Bell, 63 NY2d 796; People v Dickerson, 50 NY2d 937; People v Buie, 86 NY2d 501; People v Norton, 164 AD2d 343, 79 NY2d 808; People v Brown, 70 NY2d 513; People v Marks, 6 NY2d 67, 362 US 912.)

      Andrew C. Fine, Andrew E. Abraham and Daniel L. Green-berg, New York City, for appellant in the third above-entitled action.
    I. Appellant was deprived of his right to present a defense and to a fair trial in this case in which the identity of the perpetrator was the key issue, by the court’s refusal to permit him to introduce a 911 tape made immediately after the attack, which defense counsel sought to have admitted as a present sense impression, in which complainant stated contrary to his trial testimony, that he had not been able to see the face of his assailant. (Crane v Kentucky, 476 US 683; People v Hudy, 73 NY2d 40; People v Buie, 86 NY2d 501; People v Lewis, 69 NY2d 321; People v Seit, 86 NY2d 92; Chambers v Mississippi, 410 US 284; People v Brown, 80 NY2d 729; People v Bolling, 79 NY2d 317; People v Gruden, 42 NY2d 214; People v Romero, 78 NY2d 355; United States v Lopez, 937 F2d 716.) II. The evidence at trial was insufficient to prove guilt of assault in the second degree because under the circumstances in which it was used, the ball of paper toweling was not a dangerous instrument. (People v Carter, 53 NY2d 113; People v Marshall, 105 AD2d 849; People v Galvin, 65 NY2d 761; People v Ozarowski, 38 NY2d 481; People v Flowers, 178 AD2d 682; People v Richardson, 166 AD2d 158; People v Ludwig, 155 AD2d 558; People v Cwikla, 60 AD2d 40, 46 NY2d 434.) III. The submission to the Department of Correctional Services of a commitment in excess of the sentence stated by the court at sentencing is illegal. (People v Minaya, 54 NY2d 360; People v Wright, 56 NY2d 613.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Bruce Seeliger and Steven J. Chananie of counsel), for respondent in the third above-entitled action.
    I. The tape-recorded statement was not a present sense impression. The statement was not made contemporaneously and was not a spontaneous description of defendant’s attack upon the victim. The statement, therefore, lacked reliability and was, thus, properly excluded. (People v Brown, 80 NY2d 729; People v Buie, 86 NY2d 501; People v Jardin, 154 Misc 2d 172; United States v Medico, 557 F2d 309; United States v Obayagbona, 627 F Supp 329; United States v Mejia-Velez, 855 F Supp 607; United States v Narciso, 446 F Supp 252; People v Edwards, 47 NY2d 493; People v Brown, 70 NY2d 513; People v Marks, 6 NY2d 67.) II. The evidence presented at trial was legally sufficient to establish that defendant committed assault using a dangerous instrument. (People v Contes, 60 NY2d 620; People v Carter, 53 NY2d 113; Jackson v Virginia, 443 US 307; People v Cwikla, 60 AD2d 40, 46 NY2d 434.) III. The commitment orders filed by the sentencing court accurately reflected the sentence imposed.
   OPINION OF THE COURT

Titone, J.

In each of these three cases, the defendant unsuccessfully sought to introduce hearsay statements that were made in the course of 911 calls on the theory that those statements qualified for admission as "present sense impressions.” The appeals from the Appellate Division orders affirming defendants’ convictions require us to consider the precise contours of the criteria for present sense impressions that we outlined in People Brown (80 NY2d 729) and People v Buie (86 NY2d 501). Since these criteria were not satisfied by the offers of proof in the three cases before us, we conclude that the courts below did not err in their respective decisions to exclude the proffered evidence.

L

People v Vasquez

Defendant was charged with reckless first degree endangerment and second and third degree criminal possession of a weapon. The charges arose out of an October 19, 1989 incident in which an individual standing near the intersection of 9th Street and Avenue C in Manhattan allegedly fired several shots at a passing passenger vehicle. According to the prosecution’s evidence, the incident was witnessed by Peter Torres and Nancy Alfaro. Torres and Alfaro were riding in a white car when they first noticed an individual whom they identified as defendant exiting a nearby building. Torres stopped the car when he saw defendant "come up” with a "big” revolver. He continued to watch as defendant, whom he described as having an "intense expression,” fired four shots, "following the car” from left to right as he fired. Torres saw defendant stagger and stumble away until he was "ushered” into a nearby pool hall by some men who were standing outside. At that point, Torres and Alfaro drove away, found a radio motor patrol car and reported the shooting, describing the shooter as an "older” "drunk” male Hispanic with a brown or black coat.

En route to the spot where the reported shooting had occurred, the officers received radio reports about the incident. These officers and several others in radio motor patrol cars converged at the scene. Torres spoke with an Officer Reuss and then accompanied him and the other officers to the pool hall. Shortly after they entered, an officer saw defendant, who fit Torres’s description, exiting a small, single-stall bathroom in the back. A brief inspection of the bathroom revealed a revolver that had been placed on the floor behind the toilet and four spent shells inside the toilet itself. Following this discovery, the officers seized and searched defendant, recovering two bullets from his right pants pocket.

The identity of the shooter and the character of the shooting incident itself were challenged by the defense, which relied heavily on testimony from one Jose Tirado. Tirado, who had been "good friend[s]” with defendant for more than 25 years, stated that he saw a man argue with several others on the street and then return a few minutes later in a white car to chase his antagonists with the vehicle. After two passes through the area, the white car stopped and its driver entered into an argument with an individual whom Tirado described as "very dark” complected, "like a black with an Afro.” Suddenly, Tirado stated, the two men fired guns at each other and the one with the Afro ran across the street into the nearby pool hall. At some point thereafter, the man with the white car came back, followed by several patrol cars, and directed the police into the pool hall. Tirado stated that he had seen defendant earlier in the evening and had warned him to stay inside the pool hall to avoid the rampaging white car. At the time of the shooting, according to Tirado, defendant was in the pool hall.

During the trial, defense counsel tried at several points to introduce an audiotape of a 911 call that had been made to police by an anonymous caller, assertedly "at the same time the incident t[oak] place.” In the transcript of this tape, the caller reported that seven shots were fired. When asked whether there were any injuries, the caller answered in the negative and then stated that there was a black man wearing a black jacket "returning” and fleeing north on Avenue C. In support of his claim for admission of the tape, counsel argued that its contents were admissible under either the present sense impression or the excited utterance exception to rule against hearsay. Alternatively, counsel argued that the 911 call, or at least the radio run that was broadcast in response to the 911 call, was admissible to explain why the officers who had not spoken to Torres had gone to the scene of the shooting. Counsel’s efforts to secure admission of the contents of the 911 call and the associated radio run were repeatedly rebuffed.

Following the trial, defendant was convicted of the charged crimes and sentenced to a 21 year to life term of imprisonment. On his appeal from the judgment of conviction, the Appellate Division affirmed, holding that defendant had failed to lay a proper foundation for the admission of the 911 call as an excited utterance and that the call’s contents could not be admitted under the present sense impression exception because the requisite corroboration had not been established. Defendant subsequently obtained leave to take a further appeal from a Judge of this Court.

People v Dalton

The homicide charges in defendant Dalton’s case arose out of a violent altercation that took place just outside defendant’s apartment on October 25, 1991. According to the People’s trial evidence, the victim, Michael Sharib, who had been defendant’s close friend for several years, had earlier accused defendant of burglarizing his family’s home. Believing that Sharib was contemplating taking revenge, defendant, who was then 14 years old, arranged to purchase a gun.

On the evening of the incident, the 15-year-old Sharib, accompanied by several friends, approached defendant on the street outside of his apartment building, grabbed him by the clothes and began screaming at him about the burglary. Sharib eventually released defendant, but the argument continued until Sharib finally told defendant that if he had not committed the burglary, he should find out who did. Sharib had begun to walk away when defendant suddenly ran toward him and fired two shots from a small handgun just as Sharib turned to face him. When Sharib fell to the ground, defendant walked over to him, kicked him and then fired another shot, stating 'T hope you die.” Defendant ran into his apartment. Defendant’s mother, who arrived on the scene at some point after the shooting, picked the gun up from the ground. She subsequently cooperated with the police, directing them to defendant, who was still in the house and was in an extremely upset and agitoted state. Defendant was treated by EMS workers and then arrested. Sharib died as a result of his injuries.

Testifying on his own behalf, defendant stated that Sharib had threatened him with a knife a few days before the shooting. Although he was very nervous and concerned that Sharib would attack him, defendant stated that he did not attempt to acquire a weapon of his own after this incident. According to defendant, the altercation that led to the shooting began when Sharib and his friends surrounded him on the street and threatened him. He tried to run away, but was hit in the back of the head with a hard object. Dizzy from the blow, defendant ran to a nearby store. "When he turned, he saw Sharib standing only a few feet away and pointing a gun at his chest. When Sharib’s attention was momentarily diverted by defendant’s mother’s arrival, defendant kicked him in the groin, causing him to drop his gun. According to defendant, Sharib then attacked defendant’s mother. Fearing that Sharib would hurt his mother with the knife he had seen several days earlier, defendant fired the gun. After the initial confusion, defendant complied with his mother’s request that he give her the gun. Defendant then ran into his house and called 911.

Defendant’s version of events was corroborated by his mother, who also described his state of extreme distress following the shooting. Additionally, an EMS technician testified for the defense, confirming the defendant was very upset and that he had a lump on his head when he was examined after the incident.

To bolster the defense position, counsel asked for permission to introduce the tape of defendant’s 911 call as either an excited utterance or a present sense impression. Having made this call within minutes of the shooting, defendant told the operator that someone had been shot, gave the operator some identifying details and stated, in response to a question, that the victim had "hit [him] and bashed [his] head in the door.” When asked who had shot the victim, defendant said: "I did. I took the gun off him. He smacked me in the back of the head with a gun.” The trial court denied counsel’s request, concluding that the statements had been made after defendant had had an opportunity to reflect and that they therefore lacked "indicia of reliability.” Counsel’s subsequent efforts to introduce the 911 tape as evidence of defendant’s "state of mind” were also rebuffed.

Defendant was ultimately convicted of second degree murder and sentenced as a juvenile offender to a seven year to life term of imprisonment. The Appellate Division unanimously affirmed the conviction. This appeal, taken by permission of a Judge of this Court, ensued.

People v Adkinson

The defendant in this case was convicted of having sexually abused a 10-year-old boy on the roof of the boy’s apartment building. Although the boy identified defendant as his attacker, the identification testimony was challenged at trial because of several discrepancies in the child’s description of the perpetrator and because of questions about the child’s actual opportunity to observe his assailant’s face. To support the proffered defense of misidentification, defense counsel sought to introduce a tape of the 911 call that the victim’s aunt had made on his behalf when he returned to his apartment immediately after the assault. During this call, the victim’s aunt related the 911 operator’s questions to him and then repeated the boy’s responses. The victim’s own responses were audible on much of the tape. At one point in the tape, the victim reportedly stated in response to a specific question that he had been unable to see the face of the man who attacked him. Counsel’s arguments that the tape should be admitted under the present sense impression exception to the hearsay rule were rejected.

Defendant was convicted of the 12 counts in the indictment, and the Appellate Division affirmed the conviction, holding that the 911 tape was inadmissible because the victim’s aunt was not an eyewitness to the crime. Having obtained the permission of a member of this Court, defendant took the present appeal.

IL

The common issue in these three appeals is the proper application of the present sense impression exception to the hearsay rule that was recognized by this Court in People v Brown (supra) and elaborated upon in People v Buie (86 NY2d 501, supra). Initially, we note that our analysis as to whether a particular out-of-court statement should have been admitted under this exception does not depend on whether the trial was conducted before or after our decision in Brown was announced. Under traditional common-law principles, cases on direct appeal are generally decided in accordance with the law as it exists at the time the appellate decision is made (People v Favor, 82 NY2d 254, 260-261; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184). While a different approach may be applied in cases involving certain "new” rules of law that represent sharp departures from precedent or raise concerns about the orderly administration of justice (e.g., People v Mitchell, 80 NY2d 519; see generally, People v Pepper, 53 NY2d 213), none of the relevant factors supporting such exceptional treatment is present in this situation, which involves only an additional wrinkle in the complex body of evidentiary law governing the admission of hearsay. Thus, as long as the record is adequately developed and the issue has been preserved through timely and sufficiently specific comments by counsel, the fact that the Brown decision was not handed down until after trial presents no impediment to appellate application of the present sense impression exception to the facts of a particular case.

The "present sense impression” exception is a close relative of the analytically similar "excited utterance” exception to the rule against the admission of hearsay. Indeed, both are members of a larger category of exceptions that were formerly grouped together and classified, inaptly, as res gestae (2 McCormick, Evidence § 268 [Strong 4th ed]). "Present sense impression” statements and "excited utterances” are both often loosely described, sometimes misleadingly, as "spontaneous” statements (see generally, id., §§ 270, 271). The imprecise use of that adjective, however, should not be permitted to obscure the critical distinction between the two exceptions: the underlying reliability factor that justifies their admission.

"Excited utterances” are the product of the declarant’s exposure to a startling or upsetting event that is sufficiently powerful to render the observer’s normal reflective processes inoperative (id., at 216; see, People v Brown, 70 NY2d 513, 518; People v Edwards, 47 NY2d 493, 497; Fisch, New York Evidence § 1000 [2d ed]). "Present sense impression” declarations, in contrast, are descriptions of events made by a person who is perceiving the event as it is unfolding. They are deemed reliable not because of the declarant’s excited mental state but rather because the contemporaneity of the communication minimizes the opportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory (see, People v Brown, 80 NY2d, at 732-733; Comment of NY Law Rev Commn, reprinted in Proposed NY Code of Evidence § 804, at 211-212 [1982]; McCormick, op. cit., at 212). In our State, we have added a requirement of corroboration to bolster these assurances of reliability (see, People v Brown, 80 NY2d, at 734-735; see generally, Waltz, The Present Sense Impression Exception to the Rule Against Hearsay: Origins and Attributes, 66 Iowa L Rev 869, 883). Thus, while the key components of "excited utterances” are their spontaneity and the declarant’s excited mental state, the key components of "present sense impressions” are contemporaneity and corroboration.

We have stated that the present sense impression exception is available when the statement describes or explains an event or condition and was "made while the declarant was perceiving the event or condition, or immediately thereafter” (People v Brown, 80 NY2d, at 732 [emphasis supplied]). The italicized language, however, was meant to suggest only that the description and the event need not be precisely simultaneous, since it is virtually impossible to describe a rapidly unfolding series of events without some delay between the occurrence and the observer’s utterance. The language in question was certainly not intended to suggest that declarations can qualify as present sense impressions even when they are made after the event being described has concluded. Indeed, we noted in Brown that the description of events must be made "substantially contemporaneously” with the observations (id., at 734).

Thus, although we recognize that there must be some room for a marginal time lag between the event and the declarant’s description of that event, that recognition does not obviate the basic need for a communication that reflects a present sense impression rather than a recalled or recast description of events that were observed in the recent past. Without satisfaction of this requirement, the essential assurance of reliability— the absence of time for reflection and the reduced likelihood of faulty recollection — is negated and there is then nothing to distinguish the declaration from any other postevent out-of-court statement that is offered for the truth of its contents.

The corroboration element of the present sense impression exception is more complex and concomitantly more difficult to delineate. The general idea, as we stated in Brown (supra, 80 NY2d, at 734), is that there must be some independent verification of the declarant’s descriptions of the unfolding events. Although we stated in People v Brown (80 NY2d, at 737) that "there must be some evidence * * * that the statements sought to be admitted were made spontaneously and contemporaneously with the events described,” we did not mean by that language that such proof would suffice to satisfy the entirely separate requirement that the content of the communication be corroborated by independent proof. Rather, we merely intended to reiterate the basic foundational requirements for admitting an out-of-court declaration purporting to be a "present sense impression.” Accordingly, contrary to appellants’ arguments here, the corroboration element cannot be established merely by showing that the declarant’s statements were unprompted and were made at or about the time of the reported event.

The extent to which the content of the declaration must be corroborated by extrinsic proof is, as we have previously said, dependent on the particular circumstances of the individual case (People v Brown, 80 NY2d, at 737). Because of the myriad of situations in which the problem may arise, it would not be productive to attempt to fashion a definitive template for general application. It is sufficient at this point to note that in all cases the critical inquiry should be whether the corroboration offered to support admission of the statement truly serves to support its substance and content.

IIL

People v Vasquez

Application of the foregoing principles leads to the conclusion that no error was committed in the exclusion of the 911 tape that defendant proffered. Even assuming that the anonymous 911 call was made during the crime or in its immediate aftermath and that it was made by an on-the-scene observer who related events as he witnessed them, the statements in question did not qualify as admissible present sense impressions because they were not sufficiently corroborated by independent proof.

The "corroborative” evidence on which defendant relies is the testimony of the defense witness Tirado, who had described the shooter as a black man with a very dark complexion and an Afro hairdo. The problem with defendant’s theory is that, apart from their common reference to a black man having been at the scene, Tirado’s testimony and the 911 caller’s statements did not intersect at all. While the black man whom Tirado described as the shooter ran across the street and into the pool hall after the shooting, the black man the 911 caller described fled north on Avenue C. This discrepancy suggests that Tirado and the caller may not even have been describing the same individual. Thus, although there may have been proof that the 911 caller’s statements were made contemporaneously with the described events, the content of those statements was not corroborated by Tirado’s testimony or any other evidence. Consequently, the hearsay statements were not admissible under the present sense impression exception.

Similarly, the trial court properly refused to admit both the 911 tape and the radio transmission that was broadcast in response to it on the theory that the "door” to the admission of such evidence was opened because the police officers testified that they had received a radio broadcast with a description of the shooter and had gone to the scene of the shooting in response to that broadcast. The trial evidence indicates that there were two separate messages broadcast: one that was broadcast from "Central” in response to the 911 call and another that was broadcast from the field by the officers who had spoken to the eyewitnesses Torres and Alfaro. To the extent that the two receiving officers made brief reference in their direct trial testimony to a radio message containing a description, there was no evidence that the message in question was the one that was broadcast from" Central” rather than the separate one that was broadcast from the field. Thus, the record does not support defendant’s present claim.

The inadequacy of the record on this point also defeats defendant’s arguments regarding testimony by one of the officers that he had made, but no longer had, a hastily jotted down note of the radio transmission’s contents. Once again, it is unclear from the existing record whether the transmission reflected in the note was the one from "Central,” which mentioned a "black man,” or was instead the one from the field officer who spoke to Torres and which described the shooter as Hispanic. Because of this record ambiguity, there is no support for defendant’s argument that he was prejudiced by the note’s unavailability because its contents "would have provided a fertile ground for impeachment.” Thus, defendant’s present claim that he was erroneously denied the remedy he sought, i.e., an adverse inference instruction, does not furnish a persuasive ground for reversal. As we have previously noted, the touchstone for determining the remedy for the loss of Rosario material is the existence and degree of prejudice resulting from the loss (see, People v Wallace, 76 NY2d 953; People v Martinez, 71 NY2d 937).

Finally, there is no merit to defendant’s contention that reversible error was committed when the prosecutor elicited from Tirado, a key defense witness, that defendant had been incarcerated in the months preceding the trial. The informatian about defendant’s pretrial incarceration was volunteered by Tirado during the course of an entirely proper line of questions regarding Tirado’s failure to come forward with his exculpatory story at some earlier point. The prosecutor was attempting to establish the foundation required by People v Dawson (50 NY2d 311) by demonstrating that Tirado, defendant’s long-term friend, knew that defendant had been accused of the crime that Tirado had claimed was committed by someone else. The prosecutor’s strategy in this regard was to show that Tirado must have known about defendant’s predicament because he was present at pretrial proceedings connected with the case, including defendant’s bail hearing. In pursuing that strategy, the prosecutor attempted to avoid prejudicial references to defendant’s pretrial incarceration through careful phrasing of his questions. It was only when the witness gave , a series of evasive answers that the prosecutor’s questions became more pointed. Even then, the information that was conveyed — i.e., that there had been a hearing to determine whether defendant should be released and that Tirado had visited his friend in the courthouse — was relatively innocuous and provides no basis for inferring that defendant was prejudiced. Thus, the line of questioning of which defendant complains is not a ground for reversal (see, People v Jenkins, 88 NY2d 948 [decided herewith]).

People v Dalton

Defendant Dalton’s appeal is predicated solely on the exclusion from evidence of the contents of his own 911 call to police, which he made a few minutes after the shooting. As defendant notes, admission of this hearsay proof would have been helpful to the defense because it would have provided some support for defendant’s assertion that he had acted in defense of himself and his mother after he had been hit on the head with a gun and had taken the gun away from the victim.

Contrary to defendant’s contentions, the 911 tape was not admissible as a present sense impression for the simple reason that the statements it contained were not made contemporaneously or even substantially contemporaneously with the events they described. Instead, they were made after the entire sequence of events had come to a final and fatal end and defendant had run from the crime scene. At that point, it could no longer be said that defendant’s statements were a description of his "present sense impressions” as his observations were made. Further, it could not be said that the lapse in time between the observations and the statements "le[ft] no time for reflection” (People v Brown, supra, 80 NY2d, at 733). Accordingly, even assuming that they were sufficiently corroborated by independent proof, the statements in the 911 tape lacked the fundamental indicia of reliability that might have arguably justified their admission.

Defendant’s arguments based on the "excited utterance” exception to the rule against hearsay fare no better. An excited utterance is one made "under the immediate and uncontrolled domination of the senses, and during the brief period when consideration of self-interest could not have been brought fully to bear by reasoned reflection” (People v Brown, supra, 70 NY2d, at 518). The existence of a physical shock or trauma has often been cited as a key consideration (see, People v Brooks, 71 NY2d 877; People v Brown, 70 NY2d, at 516-517; 6 Wigmore, Evidence § 1745 [1] [Chadbourn rev ed]). While the statement must have been made before the declarant had the opportunity to reflect, " 'the time for reflection is not measured in minutes or seconds,’ ” but rather " 'is measured by facts.’ ” (People v Marks, 6 NY2d 67, 72, cert denied 362 US 912; People v Norton, 164 AD2d 343, 353, affd 79 NY2d 808.) The court must assess "not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim” (People v Edwards, 47 NY2d 493, 497, supra).

Here, the facts are that defendant, the declarant, had suffered only a minor physical trauma, i.e., a bump on the head. Moreover, although the time between the incident and the making of the disputed statements was brief, defendant had had time to run to his mother, give her the gun and then exchange the scene of the incident for the familiar surroundings of his own home before making the 911 call. Further, while defendant may have made the phone call and the initial statement that "somebody’s been shot” without prompting, the subsequent critical statements were made after defendant had accurately and coherently answered a series of identifying questions about himself and the victim. Thus, although there was evidence that defendant was very upset in the minutes and hours after the shooting, the record does not suggest that he was so agitated that he was unable to reflect or fabricate at the time he had made the 911 call.

Given defendant’s opportunity to reflect and his powerful motive to exculpate himself when he reported the shooting to police, his statements to the 911 operator cannot be deemed to have the trustworthiness required for admissible "excited utterances.” Moreover, contrary to defendant’s arguments, the 911 statement was not admissible as proof of his state of mind at the time of the shooting, since it was made after that event occurred and its relevance to defendant’s prior mental state depended entirely on the truth of its contents. Accordingly, the statement’s exclusion from evidence was not error and the order of the Appellate Division affirming the judgment of conviction should itself be affirmed.

People v Adkinson

As in the Dalton case, defendant’s efforts in this case to obtain a reversal because of the exclusion of the contents of a 911 tape must fail because the critical element of contemporaneity is absent. The statements on which the Adkinson defendant relies are those which were made by the victim to his aunt as she spoke to the 911 operator several minutes after the assault took place. The most important of these is the victim’s statement that he had not actually seen his assailant’s face — an admission that was inconsistent with the victim’s identification testimony.

The problem with defendant’s argument is that, like the 911 call in Dalton, the 911 call in question here took place after the events that were being described had come to an end and the declarant had removed himself to a different locale. Under these circumstances, the proffered statements could not rationally be characterized as recitations of an observer’s present sense impressions.

Defendant is also in error when he argues that there was insufficient proof to establish his guilt of second degree assault under Penal Law § 120.05 (2). Contrary to defendant’s contentions, a rational fact finder could conclude that the wad of paper towels that defendant had used to gag his 10-year-old victim during the assault was a "dangerous instrument” within the meaning of Penal Law § 10.00 (13). This ordinarily innocuous household item had been wadded up with rubber bands to create a dense ball that was shoved into the victim’s mouth with sufficient force to break a tooth and, presumably, to prevent the victim, whose hands were bound, from spitting it out. Used in this manner, the wad of paper towels was certainly capable of causing serious physical injury to the young victim (see, People v Cwikla, 60 AD2d 40, 44, revd on other grounds 46 NY2d 434; see generally, People v Carter, 53 NY2d 113, 116).

Although there is no basis to reverse any of defendant’s convictions we agree with defendant that his sentence was improperly altered after its service began (see, CPL 430.10). At sentencing, the trial court stated that counts 5, 6 and 11 were each consecutive to counts 1 and 2, but no mention was made of how counts 5, 6 and 11 were to run in relation to each other. Accordingly, under the plain language of Penal Law § 70.25 (1) (a), these counts were concurrent to each other. Since there is no proof on the record that the court misspoke or that its failure to designate counts 5, 6 and 11 as "consecutive” with respect to each other was accidental, there was no basis for any subsequent change in the sentence to reflect a consecutive relationship among the sentences for those counts (cf., People v Wright, 56 NY2d 613; People v Minaya, 54 NY2d 360, 364-365). Thus, to the extent that the commitment order and the amended commitment order signed by the court indicate that counts 5 and 11 are consecutive to each other, those orders represent an unauthorized alteration of defendant’s sentence and should be modified to reflect that those two counts are concurrent to each other.

Accordingly, in People v Vasquez and People v Dalton, the orders of the Appellate Division should be affirmed; in People v Adkinson, the order of the Appellate Division should be modified in accordance with this opinion and otherwise affirmed.

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

In People v Vasquez and People v Dalton: Order affirmed.

In People v Adkinson: Order modified in accordance with the opinion herein and, as so modified, affirmed.

      . We note that this is not a situation in which the lack of information about a lost document’s contents is itself the result of the authority’s negligence in losing or destroying it (see, People v Joseph, 86 NY2d 565). In this case, defense counsel could have eliminated the ambiguity of the record by simply asking the testifying officer about the source of the radioed message that he had summarized in the missing note.

      . According to defendant, the People have conceded that that count 6 was based on the same facts as count 1 and that, accordingly, it was required to run concurrently with that count. Thus, count 6 is not in issue in this appeal and, in fact, its concurrent status is reflected in the amended commitment order.


author: Levine, J.

text:
    [671 NE2d 534, 648 NYS2d 422]
    Deborah Ronnen, Individually and as Guardian for Lia Ronnen and Others, et al., Appellants, v Ajax Electric Motor Corp. et al., Respondents. Neil Norry, Respondent, v Deborah Ronnen et al., Appellants.
    Argued June 6, 1996;
    decided July 9, 1996

      POINTS OF COUNSEL

      Nixon, Hargrave, Devans & Doyle, LLP, Rochester (Francis E. Kenny of counsel), for Deborah Ronnen and others, appellants.
    I. Because the language of the shareholders’ agreement is unambiguous, there was no need for Special Term to construe the intent of the parties. II. The court should not award respondent Norry under the guise of "interpretation” that which he clearly requested in negotiations and which he surrendered to his sister. (Sayers v Rochester Tel. Corp. Supplemental Mgt. Pension Plan, 7 F3d 1091.) III. The IAS Court’s decision violates established principles of contract interpretation. (Corhill Corp. v S. D. Plants, Inc., 9 NY2d 595.) IV. The IAS Court’s decision conflicts with established case law and principles of corporate governance. (Manson v Curtis, 223 NY 313; McQuade v Stoneham, 263 NY 323, 264 NY 460; Long Park v Trenton-New Brunswick Theatres Co., 297 NY 174.) V. The proxy granted to respondent Norry in the shareholders’ agreement must be strictly construed. (Smith v Orange & Rockland Utils., 162 Misc 2d 606; Smith v Koerber, 352 F Supp 591.) VI. The IAS Court decided an issue not presented to it. (Slatt v Slatt, 64 NY2d 966; Benderson Dev. Co. v Schwab Bros. Trucking, 64 AD2d 447; Nichols v Nichols, 306 NY 490; Laba v Carey, 29 NY2d 302; 67 Wall St. Co. v Franklin Natl. Bank, 37 NY2d 245; Skinner v Paramount Pictures, 294 NY 474.) VII. The election of directors is not a matter relating to Ajax’s day-to-day operations and corporation management. (People v Case, 42 NY2d 98; Hustace v Phenix Ins. Co., 175 NY 292; People v Ketter, 76 Misc 2d 698; DeVita v Pianisani, 127 Misc 611; Kinsey v Farmland Indus., 853 F Supp 231, 43 F3d 669.) VIII. The election of directors constitutes a major corporate policy decision expressly reserved to Ronnen in the shareholders’ agreement. IX. The election at the annual meeting held on March 13, 1995 should not be overturned nor a new meeting ordered. (Matter of Dollinger Corp., 51 Misc 2d 802; Matter of Gunzburg v Gunzburg, 74 AD2d 636; Jordan v Allegany Co-Op Ins. Co., 147 Misc 2d 768.) X. The decision of the lower court in a prior case does not collaterally estop appellants from claiming the right to vote their shares of stock for the election of directors. (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481; 233233 Co. v City of New York, 171 AD2d 492; Stokes v Foote, 172 NY 327; Kaswan v Mannings, 198 AD2d 170; Sahn v AFCO Indus., 192 AD2d 480.)

      Gough, Skipworth, Summers, Eves & Trevett, Rochester (Kenneth Bersani and Thomas M. VanStrydonck of counsel), and Bilgore, Reich, Levine, Kroll & Kantor for Bruce Lipsky and another, appellants.
    I. Fewer than all shareholders of a closely held corporation acting in concert by a private agreement may not so circumscribe the discretion of the board of directors as to abrogate the remaining shareholders’ right to have the corporation managed by directors who are free to exercise their duties, and who owe an equal fiduciary duty to all shareholders. (Zion v Kurtz, 50 NY2d 92.) II. As interpreted by the court below, the terms and conditions of the shareholders’ agreement illegally restrict the discretion of the board of directors to manage the business of Ajax. (Triggs v Triggs, 46 NY2d 305; Manson v Curtis, 223 NY 313; McQuade v Stoneham, 263 NY 323, 264 NY 460; Long Park v Trenton-New Brunswick Theatres Co., 297 NY 174; Matter of Gekel [Gluck], 30 NY2d 93; Dubin v Muchnick, 108 Misc 2d 1042; Adler v Svingos, 80 AD2d 764.) III. Unless overturned by this case, the decision below will stand as the law of the case, adversely affecting all currently pending and future proceedings of the parties. (Matter of Doyle v Amster, 79 NY2d 592.) IV. If the decision below is allowed to stand as the law of the case, it will be used by respondent Norry to convince current and future members of the board of directors of Ajax that their discretion to act in the best interest of the corporation is circumscribed, and that they must act so as to give him day-to-day control of the operations and management of the corporation. (Triggs v Triggs, 46 NY2d 305.) V. The court below failed to decide the issue presented to it, whether the agreement gave respondent Norry the right to vote the Ronnen shares for the election of directors, but rather decided that provisions should have been placed in the agreement to provide respondent Norry with day-to-day control of operations.

      Woods, Oviatt, Gilman, Sturman & Clarke LLP, Rochester (William G. Bauer, Beryl Nusbaum and Gordon E. Forth of counsel), for respondents.
    I. The lower court properly interpreted the 1982 agreement of shareholders as granting the exclusive right to vote Ronnen shares in election of Ajax’s directors to respondent Norry. (O’Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50; Deering Milliken v Clark Estates, 43 NY2d 545; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Raleigh Assocs. v Henry, 302 NY 467; Rowe v Great Atl. & Pac. Tea Co., 46 NY2d 62; Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1; Manson v Curtis, 223 NY 313; Ward v Union Trust Co., 172 App Div 569, 224 NY 73; Matter of Katz, 2 Misc 2d 325, 1 AD2d 657.) II. The IAS Court properly exercised its discretionary power under Business Corporation Law § 619 by ordering a new election of directors. (Milligan v Hycel Realty Corp., 14 NY2d 581; Matter of Smith v Ellerbe, 141 Misc 2d 699; Matter of Kaminsky, 251 App Div 132; Jordan v Allegany Co-Op Ins. Co., 147 Misc 2d 768; Matter of Buschwick Sav. & Loan Assn. [Von Bayer], 189 Misc 316.) III. Appellants Ronnens are collaterally estopped from challenging respondent Norry’s right to vote the Ronnen shares in the election of directors and on motions for adjourning shareholder meetings. (Ryan v New York Tel. Co., 62 NY2d 494; Bernstein v Birch Wathen School, 71 AD2d 129, 51 NY2d 932; Walsh v Pluess-Staufer [Northamerican], 67 Misc 2d 885.) IV. The Court below correctly rejected appellants’ claim that the agreement of shareholders is illegal. (Dias v Tire Mart, 27 Misc 2d 24, 18 AD2d 978, 14 NY2d 637; Liss v Manuel, 58 Misc 2d 614; Red Robin Stores v Rose, 274 App Div 462; Manson v Curtis, 223 NY 313; Clark v Dodge, 269 NY 410; Brenner v Hart Sys., 114 AD2d 363; Matter of Liberman v Liberman, 23 AD2d 545, 16 NY2d 613; 721 Corp. v Morgan Guar. Trust Co., 40 Misc 2d 395; Triggs v Triggs, 46 NY2d 305; Wilson v Rensselaer & Saratoga R. R. Co., 184 Misc 218.) V. The Lipsky shareholders are estopped from attacking the legality of the agreement of shareholders because they have both accepted benefits from the agreement by being elected and serving as directors of Ajax. (Red Robin Stores v Rose, 274 App Div 462; Brum v City of Niagara Falls, 145 AD2d 928; Brearton v De Witt, 252 NY 495; National Recovery Sys. v Mazzei, 123 Misc 2d 780.)
   OPINION OF THE COURT

Levine, J.

The opposing parties to this litigation are brother and sister who, with their children, collectively hold a bare majority of the issued and outstanding shares of the capital stock of Ajax Electric Motor Corp., a closely held corporation based in Rochester. Respondent Neil Norry has been the chief executive officer of Ajax. The immediate matter in dispute is the validity of the election of the board of directors of the corporation at its annual shareholders’ meeting held March 13, 1995.

Central to that dispute is a March 5, 1982 shareholders’ agreement between Norry (and his two sons) and his sister, appellant Deborah Ronnen, on behalf of herself and as custodian for her children. The shareholders’ agreement granted Norry certain rights to vote Ronnen’s stock and that of her children.

The March 13,1995 shareholders’ meeting began in acrimony between Ronnen and Norry, who initially chaired the meeting. Immediately prior to the meeting, Ronnen served Norry with a temporary restraining order prohibiting him from voting the Ronnen shares regarding proposed amendments to the Ajax bylaws and certificate of incorporation, which were on the agenda for the meeting. When the meeting convened, Ronnen’s attorney had the proceedings videotaped, without prior notice to Norry. In response to these actions, Norry announced that the meeting was being adjourned. Over Ronnen’s protest, he voted the Ronnen shares with the Norry shares for a combined majority vote to adjourn and left the meeting. In his absence, Ronnen and the remaining shareholders of Ajax, including appellants Bruce Lipsky and Joseph Livingston, elected a slate of directors.

Norry then brought a proceeding, pursuant to Business Corporation Law § 619, to invalidate the election of directors in his absence and for an order directing a new election. Ronnen, Lipsky and Livingston petitioned under section 619 to confirm the election. Supreme Court interpreted the shareholders’ agreement as giving Norry the right to vote the Ronnen shares in any election of a board of directors. This factor, together with the hostile atmosphere permeating the March 13, 1995, meeting, led Supreme Court to conclude that a new election should be held. The Appellate Division affirmed the order for a new election of directors, with two Justices dissenting on the ground that the shareholders’ agreement did not transfer Ronnen’s voting rights to Norry for board of directors elections and that the election was in other respects properly conducted. Ronnen, Lipsky and Livingston appeal as of right on the basis of the double dissent (see, CPLR 5601 [a]).

We now affirm. The parties are not in dispute over the circumstances leading up to the March 5, 1982 agreement between the Norry shareholders and Ronnen. Ajax had been a highly prosperous distributor of electric motors nationwide, founded by Irving Norry (the father of Neil Norry and Deborah Ronnen), Sydney Gilbert and David Lipsky. Irving Norry and his wife had, by 1980, transferred by gift or sale all of their shareholdings in Ajax to their two children and their families. Friction developed between Norry and Ronnen regarding, among other things: Norry’s acquisition for his children of his mother’s Ajax shares, upsetting the equality of the Norry siblings’ interests in the corporation; Ronnen’s displeasure over an irrevocable option her brother had been granted in 1967 to acquire her Ajax shares under what she considered an inadequate price formula; the level Norry had fixed for his compensation and other alleged financial self-dealing in Ajax and in Norry Electric Co., a separate family business; and Ronnen’s objection to not being kept informed of financial decisions Norry made in connection with the management of both corporations. Ronnen wished to ensure that her interest in Ajax could be passed on to her children free of interference by Norry. Norry expressed willingness to accommodate Ronnen, provided he was guaranteed continued managerial control of Ajax and was given the opportunity to acquire the Ronnen shares in Ajax before they could be sold to an outsider. He also wished to buy out his sister’s interest in Norry Electric Co. These various objectives of the parties were implemented in the shareholders’ agreement and other contemporaneous transactions.

The shareholders’ agreement recited as one of its purposes "to provide for the vote of [the Norry and Ronnen families’] Shares in order to provide for continuity in the control and management of Ajax.” The primary voting control provision was set forth in paragraph 8 of the agreement. Subparagraph 8 (a) provided that the Ronnen shareholders "agree that Neil Norry shall exercise voting rights over the Shares owned by them * * * with respect to any and all matters relating to Ajax’s day-to-day operations and corporate management” (emphasis supplied). Norry was also given the right to vote the Ronnen shares regarding-any sale of substantially all of Ajax’s assets or stock to an outside party, provided that the transaction treated the Norry and Ronnen interests equivalently. The agreement, however, reserved to Ronnen the right to vote the Ronnen shares "[i]n connection with other major corporate policy decisions,” and listed as examples of such major decisions, "other types of corporate reorganizations” and other similar actions. Subparagraph 8 (b) gave Norry an irrevocable proxy to vote the Ronnen shares as provided in the preceding subparagraph.

The unambiguous words of paragraph 8 and the recital purpose clause of the agreement present an issue of pure contract interpretation for the court (see, Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456, 460; Brainard v New York Cent. R. R. Co., 242 NY 125, 133), and admit of no construction other than the conferral to Norry of the right to vote the Ronnen shares in any election of a board of directors of Ajax. The undisputed background facts support this interpretation as well (see, Brainard v New York Cent. R. R. Co., supra). The parties have not cited to any provision of the Ajax certificate of incorporation transferring corporate management decisions from the board of directors to the shareholders (see, Business Corporation Law § 620 [b]). Therefore, management of the business of Ajax was, by statute, exclusively "under the direction of its board of directors” (Business Corporation Law § 701; see, McQuade v Stoneham, 263 NY 323, 329, rearg denied 264 NY 460).

We have held that "the law in force at the time [an] agreement is entered into becomes as much a part of the agreement as though it were expressed or referred to therein, for it is presumed that the parties had such law in contemplation when the contract was made and the contract will be construed in the light of such law” (Dolman v United States Trust Co., 2 NY2d 110, 116). Thus, without the right to vote the Ronnen shares to elect the directors of the corporation, the transfer of voting rights regarding "corporate management” under subparagraph 8 (a) of the agreement would be essentially meaningless since management control was vested in the directors and not the shareholders. We have long and consistently ruled against any construction which would render a contractual provision meaningless or without force or effect (see, Two Guys from Harrison-N.Y. v S.F.R. Realty Assocs., 63 NY2d 396, 404; Corhill Corp. v S. D. Plants, Inc., 9 NY2d 595, 599; Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 46; Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342, 347; Fleischman v Furgueson, 223 NY 235, 239).

The reservation to Ronnen of the right to vote the Ronnen shares "[i]n connection with * * * major corporate policy decisions” is consistent with the parties’ intent to confer on Norry the right to vote the Ronnen shares in the election of board of directors, since major corporate decisions, such as corporate mergers, connote extraordinary change while director elections are the ordinary subject matter of a shareholder meeting. It, therefore, follows that by agreeing to transfer to Norry the right to vote the Ronnen shares "with respect to any and all matters relating to Ajax’s * * * corporate management,” the parties must have intended, on the facts of this case, to give Norry the right to vote the shares to elect a board of directors.

By the same token, in the absence of having an irrevocable proxy to vote their cumulative majority interests for the election of directors, the shareholders’ agreement’s recited purpose to ensure "continuity in the control and management of Ajax” could not be achieved. We should not adopt a construction of subparagraph 8 (a) which would frustrate one of the explicit central purposes of the agreement (see, Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1, 6; Matter of Herzog, 301 NY 127, 135; Genet v President of Del. & Hudson Canal Co., 163 NY 173, 179).

Ronnen, however, points to the language of paragraphs 10, 12 and 14 of the shareholders’ agreement as negating any inference that Norry was given the right to vote the Ronnen shares in elections of the board of directors. Paragraph 10 of the agreement recites that "[t]he parties agree that * * * they shall vote the Shares” to ensure a seat on the board of directors for Deborah Ronnen. Paragraph 12 provides that "[t]he parties agree that * * * they shall vote the Shares in the election of Directors” to ensure Ronnen’s access to all reports concerning the management of Ajax, and paragraph 14 similarly requires the "parties” to "vote the Shares in the election of Directors” so as to generally cap Norry’s total executive compensation at $125,000 a year.

Ronnen, thus, argues that the literal language of paragraphs 10, 12 and 14 militates against an interpretation of the agreement ceding the right of Ronnen, "a party” to the agreement, to vote the Ronnen shares for the election of directors, and that such an interpretation would deprive those provisions of any force or effect. Ronnen further argues that the use of the plural, "parties,” in those paragraphs was ignored by the courts below, who rewrote the clauses in question as an agreement that, singularly, "Neil Norry shall vote the Shares” in accordance with the substantive requirements of paragraphs 10, 12 and 14. We disagree.

As we have already discussed, subparagraph 8 (a) of the shareholders’ agreement unequivocally guarantees the right of Norry to vote a majority block of shares on all matters "relating to * * * corporate management” of Ajax, which in this case necessarily entails majority voting rights to elect a board of directors favorable to the continuation of his corporate policies. Construing paragraphs 10, 12 and 14 literally, to permit Ronnen to vote the Ronnen shares in board of directors elections to form a majority with shareholders possibly unfavorable to Norry’s management role would, thus, take away from Norry the bargained for management rights and privileges promised in paragraph 8. We have previously applied the principle that a contract which confers certain rights or benefits in one clause will not be construed in other provisions completely to undermine those rights or benefits (see, Two Guys from Harrison-N.Y. v S.F.R. Realty Assocs., supra, 63 NY2d, at 405 ["generally, a contract which expressly permits an activity will not be construed to prohibit other conduct necessary to carrying out that activity”]; Premium Point Park Assn. v Polar Bar, 306 NY 507, 511 ["(w)e may not construe the covenant as prohibiting in one subdivision that which it expressly sanctions in another”]).

Contrary to Ronnen’s contention, a transfer of Ronnen’s voting rights to Norry on election of a board of directors will not render paragraphs 10, 12 and 14 meaningless. These three provisions were manifestly intended to suit the purposes of Ronnen, guaranteeing her a seat on the board of directors and requiring the three Norry shareholders (Neil Norry and his sons) to vote the majority block of shares for directors who will be favorable to her position on access to corporate information and on imposing a ceiling on Norry’s compensation. Thus, the pluralized language in paragraphs 10, 12 and 14 that "[t]he parties agree that * * * they shall vote the Shares” in board of directors elections can readily be construed to refer to the three Ronnens who were parties to the agreement, all of whose shares would be necessary to form a majority voting block with the Ronnen shares. That interpretation should be favored, as it would reconcile paragraphs 10, 12 and 14 with paragraph 8 of the agreement and effectuate all of the parties’ objectives in entering into the agreement (see, Empire Props. Corp. v Manufacturers Trust Co., 288 NY 242, 248-249; see also, Two Guys from Harrison-N.Y. v S.F.R. Realty Assocs., supra, 63 NY2d, at 404).

For all the foregoing reasons, we hold that the courts below properly construed the shareholders’ agreement as giving Neil Norry the right to vote the Ronnen shares in board of directors elections. The position on appeal of appellants Lipsky and Livingston that, as thus construed, the shareholders’ agreement is void as against public policy is unpreserved and, hence, has not been considered.

Finally, in view of the irrevocable proxy Ronnen gave Norry to vote the Ronnen shares in any election of directors, together with the other circumstances surrounding the March 13, 1995 shareholders’ meeting alluded to by Supreme Court, the ordering of a new board of directors election in this case was within that court’s discretionary equity powers under Business Corporation Law § 619 to "confirm the election, order a new election, or take such other action as justice may require” (emphasis supplied) (see, Matter of Kaminsky, 251 App Div 132, 139-140, affd without opn 277 NY 524; Matter of Lake Placid Co., 274 App Div 205; see also, Matter of Gearing v Kelly, 11 NY2d 201, rearg denied 11 NY2d 1016).

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

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

Order affirmed, with costs.