author: Jones, J.

text:
    In the Matter of C. H. Heist Corp., Respondent-Appellant, v State Tax Commission, Appellant-Respondent.
    Argued April 30, 1980;
    decided June 5, 1980

      POINTS OF COUNSEL

      Harold M. Halpern for respondent-appellant.
    I. The substantial evidence in the record compels the conclusion that the field testing of petitioner’s equipment was a part and parcel of its fabrication. No other use was made of the equipment. Therefore, no use tax should be imposed. (Matter of Airlift Int. v State Tax Comm., 52 AD2d 688.) II. Even if testing constitutes use subject to tax, such tax should be limited to the fair rental value of the equipment during the test period. III. Section 1105 (subd [c], par [5]) of the Tax Law is not limited by its terms to ordinary janitorial services. Accordingly, petitioner, which performed interior cleaning and maintenance services for Mobil and Du Pont corporations pursuant to long-term contracts, is entitled to a sales tax exemption on the rendered services. (People v Middletown & Unionville R. R. Co., 169 Misc 773; Direen Operating Corp. v State Tax Comm., 46 AD2d 191; Beal v Finch, 11 NY 128; Matter of Davies, 168 NY 89.)

      Robert Abrams, Attorney-General (Joseph F. Gibbons, Shirley Adelson Siegel and Francis V. Dow of counsel), for appellant-respondent.
    I. The court below erred when it ruled that petitioner could exercise the option of having the cleaning units taxed at their fair rental value. (Matter of Howard v Wyman, 28 NY2d 434.) II. There is substantial evidence in the record to support the determination of appellant that machinery used by petitioner to furnish services to its customers in New York State were not exempt from use taxes. (Matter of Grace v New York State Tax Comm., 37 NY2d 193; Matter of Airlift Int. v State Tax Comm., 52 AD2d 688; Matter of Atlantic Gulf & Pacific Co. v Gerosa, 16 NY2d 1; Matter of Great Lakes Dredge & Dock v Department of Taxation & Fin. of State of N. Y., 39 NY2d 75, 429 US 832; Matter of Sandy Hill Corp. v State Tax Comm. of State of N. Y, 61 AD2d 550.) III. Receipts from the cleaning and maintenance of machinery and areas encrusted with excess products used and thrown off by machines in productive processes are not exempt from sales taxes under the provisions of section 1105 (subd [c], par [5]) of the Tax Law. (Matter of Great Lakes Dredge & Dock v Department of Taxation & Fin. of State of N. Y., 39 NY2d 75; White v Winchester Club, 315 US 32; Matter of Consolidated Edison of N. Y. v State Tax Comm. of State of N. Y., 24 NY2d 114.)
   OPINION OF THE COURT

Jones, J.

Where heavy-duty, industrial cleaning machines, assembled by the taxpayer in New York State (from component parts purchased outside the State with respect to which use taxes are payable) for ultimate shipment out of the State are used during the in-State testing period in the performance of the taxpayer’s regular customer service contracts, the taxpayer is not entitled to refund or credit of such use taxes on the theory that the testing is an integral part of the fabrication of the machines. Nor is the taxpayer entitled in these circumstances to elect to have the use taxes computed on the basis of fair rental value rather than purchase price. Finally, the industrial cleaning services rendered within the State by this taxpayer do not fall within the exclusion from taxation of janitorial cleaning services for purposes of the sales tax.

The taxpayer is engaged in the specialized business of cleaning industrial machinery, primarily in the plastics and petroleum industries, through the use of truck-mounted, high-pressure water units. It has operating offices throughout continental United States and in Puerto Rico and Canada, but all the design, assembly and fabrication of its cleaning units is done at a single location in Cheektowaga, New York. Parts for its machines are purchased throughout the United States and shipped to Cheektowaga for assembly. The finished machines are then used on jobs for industrial customers in New York State for field testing under actual operating conditions. The testing periods for the 16 cleaning units involved in this appeal ranged from 8.5 to 132 hours. Satisfactory functional performance having been assured, the machines are then shipped to various locations outside New York State for use by the taxpayer in providing customer service.

Following audit the Sales Tax Bureau issued a notice of determination and demand for the payment of sales and use taxes for the period September 1, 1969 to August 31, 1972 in the amount of $97,589.07, including interest and penalties. Additional tax liability was asserted in the amount of $65,533.78, of which $38,038.93 represented asserted sales tax deficiency and $27,514.83 was for use tax deficiency. The latter amount included $1,871.10 for taxable out-of-State purchases for repairs of cleaning units located in the Buffalo area (to which tax liability the taxpayer consented) and $25,643.73 for assertedly taxable out-of-State purchases of component parts for cleaning units assembled in New York, field tested and then shipped out of the State for use elsewhere. The taxpayer requested a hearing, claiming that it was not liable for the sales taxes and was entitled to an offsetting refund or credit with respect to the use taxes. Following the hearing the State Tax Commission issued a determination upholding the prior notice of determination. The taxpayer then instituted the present proceeding to review the commission’s determination. The Appellate Division confirmed the imposition of the sales taxes and the denial of refund or credit with respect to the use taxes, but modified to permit the taxpayer to elect to have the use taxes computed on fair rental value rather than purchase price under section 1111 (subd [b], par [2]) of the Tax Law. The case is now before us on cross appeals by leave granted by our court. In our turn we undo the modification at the Appellate Division and confirm the determination of the commission without change.

On the taxpayer’s appeal two issues are tendered. The first relates to its liability for use taxes and particularly to the commission’s determination that the taxpayer is not entitled, under section 1119 (subd [a], par [4]) of the Tax Law, to refunds or credits with respect to use taxes paid on the purchase of component parts used in the assembly of its cleaning machines which are shipped out of the State after field testing. That clause provides that refunds or credits shall be allowed "(4) on the sale or use within this state of tangible personal property, not purchased for resale, if the use of such property in this state is restricted to fabricating such property (including incorporating it into or assembling it with other tangible personal property), processing, printing or imprinting such property and such property is then shipped to a point outside this state for use outside this state”. It appears that the taxpayer has recognized that use taxes were payable with respect to the out-of-State purchases of the component parts for these cleaning machines. It contends, however, that it is entitled to an economic offset by way of refund or credit under this clause. The critical question is whether the commission was warranted in concluding that the use to which the taxpayer put its finished cleaning machines during the period of testing before shipping them out of State was not part of "fabricating” the machines within the meaning of the statute. The testing was conducted, not at the taxpayer’s plant or in its laboratories but at the property of its customers, by use of the newly assembled units in the performance by the taxpayer of in-State customer service contracts, for which charges at regular rates were made to the customers. Assuming without deciding that in other situations testing without more could be considered an integral final state of fabrication, it cannot be said that there was not substantial evidence to sustain the determination of the commission that in this case the use to which the finished machines were put went beyond fabrication, thus taking; that use out of the operational scope of paragraph (4). The use here served dual purposes — providing the opportunity for field testing and at the same time satisfying performance obligations of the taxpayer under its customer service contracts. This latter use was of sufficient independent substance to sustain the commission’s denial of refunds or credits.

The second issue on the taxpayer’s appeal relates to its liability for sales taxes and is based on its contention, which was rejected by the commission, that services performed by the taxpayer within the State of New York for Mobil and Du Pont corporations pursuant to long-term contracts were ex-cludable from the sales tax under the last clause of section 1105 (subd [c], par [5]) of the Tax Law. Under that paragraph a sales tax is imposed on the receipts from the sale of services in "Maintaining, servicing or repairing real property, property or land” but "excluding interior cleaning and maintenance services performed on a regular contractual basis for a term of not less than thirty days, other than window cleaning, rodent and pest control and trash removal from buildings.” The taxpayer asserts that its cleaning services come within this exclusionary clause. We have recently upheld the selective determination of the commission in the application of the exclusion of paragraph (5) to receipts for services for elevator repairs (Matter of National Elevator Ind. v New York State Tax Comm., 49 NY2d 538). In this instance the commission determined that this taxpayer’s services in cleaning industrial machinery, which were found to be of a "specialized, technical nature requiring custom fabricated equipment and skilled laborers”, did not come within the exclusion (interpreted by the commission essentially to refer to ordinary janitorial services). We cannot say that this determination was arbitrary or capricious. (See Memorandum 1 of Law Bureau, Information Letter No. 9, Sept. 3, 1965 [2 CCH, NY State Tax Rep— Sales & Use Taxes, par 60-135.10]; cf. Matter of Great Lakes Dredge & Dock Co. v Department of Taxation & Fin. of State of N. Y., 39 NY2d 75, 78-79.)

Accordingly, on the appeal of the taxpayer there should be an affirmance.

On the appeal of the Tax Commission but a single issue is tendered, related to the computation of the use tax. The Appellate Division in reliance on the provisions of section 1111 (subd [b], par [2]) of the Tax Law held that the taxpayer had the option of electing to have the compensating use tax payable with respect to the component parts (which had been purchased out of State for cleaning machines to be shipped out of the State after assembly) computed on fair rental value of the property for the period of use in New York rather than on purchase price. This appears to have been error.

Subdivision (b) of section 1111 on which the taxpayer relies provides as follows:

"(b) Tangible personal property, which has been purchased by a resident of New York state outside of this state for use outside of this state and subsequently becomes subject to the compensating use tax imposed under this article, shall be taxed on the basis of the purchase price of such property, provided, however:

"(1) That where a taxpayer affirmatively shows that the property was used outside such state by him for more than six months prior to its use within this state, such property shall be taxed on the basis of current market value of the property at the time of its first use within this state. The value of such property, for compensating use tax purposes, may not exceed its cost.

"(2) That the compensating use tax on such tangible personal property brought into this state (other than for complete consumption or for incorporation into real property located in this state) and used in the performance of a contract or subcontract within this state by a purchaser or user for a period of less than six months may be based, at the option of the taxpayer, on the fair rental value of such property for the period of use within this state.”

This subdivision affords the taxpayer limited economic relief by way of reduction in the amount of tax where the property in question has been used out of the State but is subsequently brought into the State. Property having such an out-of-State character is treated differently from property which has had a New York State character from the time of its purchase. In the latter case, the situs of purchase is intentionally given no legal significance; if the situs is within the State a sales tax is payable on the full purchase price and if the situs is outside the State the compensating use tax is payable on the same basis. As to property previously used out of the State the diminution in tax is of two types — if the property in question has been used out of State for more than six months the use tax is computed on its current market value rather than on its purchase price (subd [b], par [1]). If the property is used within the State in the performance of a contract hére for less than six months, the taxpayer may elect to have the tax computed on its fair rental value rather than on its purchase price (subd [b], par [2]). To become entitled to either reduction in the amount of tax the taxpayer must establish the out-of-State character of the property by proof of its prior use out of the State. The applicable regulation of the Department of Taxation and Finance comports with this analysis; it is entitled "Property used outside of State prior to use in New York” (20 NYCRR 531.4).

In the present case, so far as appears from the record the component parts of the cleaning machines were shipped directly to New York without any prior out-of-State use. In this circumstance it was error to afford the taxpayer the right to avail itself of the optional valuation under paragraph (2). Therefore on the commission’s appeal there should be a reversal.

Accordingly, the order of the Appellate Division should be modified, with costs to the State Tax Commission, by deleting the direction therein remitting the case to the commission to provide an opportunity to the taxpayer to elect the optional valuation method, and, as so modified, affirmed.

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

Order modified, with costs to the State Tax Commission, in accordance with the opinion herein and, as so modified, affirmed.

       This issue was not raised before the commission and is not addressed in the commission’s determination. Nor was it raised in the taxpayer’s petition in the article 78 proceeding.


source: Caselaw Access Project

author: Chief Judge Cooke. Gabrielli, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Roger Belton, Appellant.
    Argued April 21, 1980;
    decided June 5, 1980

      POINTS OF COUNSEL

      Paul J. Cambria, Jr., and Barbara Davies Eberl for appellant.
    The warrantless search of appellant’s zippered jacket in the absence of exigent circumstances while it was within the exclusive control of the police, and the seizure of contraband from its recesses violates the Fourth and Fourteenth Amendments and requires that the evidence be suppressed and the indictment dismissed. (Arkansas v Sanders, 442 US 753; United States v Chadwick, 433 US 1; Coolidge v New Hampshire, 403 US 443; People v De Santis, 46 NY2d 82; People v

      Perel, 34 NY2d 462; People v Cofield, 55 AD2d 113, 43 NY2d 654; United States v Johnson, 588 F2d 147; United States v Schleis, 582 F2d 1166; Chimel v California, 395 US 752; United States v Stevie, 582 F2d 1175.)

      James R. Harvey, District Attorney (R. Michael Tantillo of counsel), for respondent.
    The warrantless search of the vehicle and of appellant’s jacket therein was not violative of the Fourth and Fourteenth Amendments in that the search was properly incident to a lawful arrest. (Chimel v California, 395 US 752; United States v Robinson, 414 US 218; People v Weintraub, 35 NY2d 351; People v De Santis, 46 NY2d 82; United States v Chadwick, 433 US 1; United States v Garcia, 605 F2d 349; People v Cofield, 55 AD2d 113, 43 NY2d 654; Arkansas v Sanders, 442 US 753; Chambers v Maroney, 399 US 42; Carroll v United States, 267 US 132.)
   OPINION OF THE COURT

Chief Judge Cooke.

A warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article.

On April 9, 1978, defendant and three companions were traveling on the New York State Thruway in Ontario County when their car was stopped by a State trooper for speeding. Upon approaching the vehicle, the officer smelled the distinct odor of marihuana emanating from within and observed on the floor an envelope which he recognized as a type that is commonly used to sell the substance. At that point the officer ordered the occupants out of the vehicle, patted each down, removed the envelope from the floor and ascertained that it contained a small amount of marihuana.

After the marihuana was found, the individuals, still standing outside the car, were placed under arrest. The officer then re-entered the vehicle, searched the passenger compartment and seized the marihuana cigarette butts lying in the ashtrays. He also rifled through the pockets of five jackets on the back seat. Upon opening the zippered pocket of one of them, he discovered a small amount of cocaine and defendant’s identification.

Following denial of his motion to suppress the cocaine, defendant pleaded guilty to attempted possession of a criminal substance in the sixth degree. A unanimous Appellate Division affirmed, holding the warrantless search of the jacket lawful as incident to defendant’s arrest for possession of marihuana (68 AD2d 198). There should be a reversal.

Analysis begins with the general proposition that, except in a few narrowly circumscribed instances, the Fourth Amendment condemns warrantless searches and seizures as unreasonable (Coolidge v New Hampshire, 403 US 443, 455). The privacy interest of our citizens is far too cherished a right to be entrusted to the discretion of the officer in the field. Reasonableness of the intrusion does not turn upon the belief, however well founded it may be, that the article sought is concealed in a particular place. The Constitution, therefore, focuses upon the desirability of having the judiciary, rather than the police, determine when searches and seizures are permissible and the limitations that are to be placed upon such activities. Necessarily, then, the predicate for the warrantless search must be carefully examined to ensure that its scope, both temporally and geographically, did not exceed constitutional limits.

The People maintain that the warrantless search of defendant’s jacket was reasonable on the ground that it was incident to his lawful arrest. A custodial arrest of a suspect based upon probable cause without a warrant in a public place constitutes a reasonable intrusion under the Fourth Amendment (United States v Watson, 423 US 411). That arrest being a lawful and substantial intrusion, any search incident thereto requires no additional justification (People v Perel, 34 NY2d 462; see, also, People v Weintraub, 35 NY2d 351).

When a suspect is placed under custodial arrest, there is always present the danger that he may seek to use a weapon to effect an escape or destroy or conceal evidence of a crime. Thus, to safeguard himself and others, and to prevent the loss of critical evidence, it is reasonable from a Fourth Amendment perspective for the arresting officer to conduct a prompt, warrantless "search of the arrestee’s person and the area 'within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence” (Chimel v California, 395 US 752, 763). Upon arrest, the privacy interest of the arrestee in possessions within the arrestee’s immediate control are subsumed within the State’s interest in discovering weapons, thwarting access to means of escape and preventing the destruction of evidence (see United States v Robinson, 414 US 218). But while the arrest establishes the authority for the warrantless search, it does not transform the initial predicate into carte blanche justification to rummage through all articles which might bear some connection to the arrestee (see Dyke v Taylor Implement Co., 391 US 216; People v Williams, 37 NY2d 206; People v Lewis, 26 NY2d 547).

The privacy interest of the arrestee in an object remains intact once he is effectively neutralized or the object is within the exclusive control of the police (see Arkansas v Sanders, 442 US 753; United States v Chadwick, 433 US 1). At that point, any exigency which would otherwise have justified a warrantless search has been dissipated and the search is no longer an incident to the arrest (but cf. People v De Santis, 46 NY2d 82; People v Darden, 34 NY2d 177). The critical inquiry focuses upon the extent to which the arrestee may gain access to the property rather than the time or space between the arrest and search (see United States v Edwards, 415 US 800).

In this regard, United States v Chadwick (433 US 1, supra) is instructive. There, railroad officials in San Diego observed two individuals loading a heavy footlocker onto a train bound for Boston. Their suspicions were aroused when the trunk leaked talcum powder, a substance commonly used to mask the odor of marihuana. The officials notified Federal agents who relayed the information to their counterparts in Boston. When the train arrived in that city, the two individuals who had loaded the footlocker in San Diego were on hand and lifted it into the trunk of Chadwick’s waiting car. At that point, Federal agents arrested all three, seized the footlocker and transported them to the Federal building. There, with the arrestees safely incarcerated, the agents opened the trunk and seized a large quantity of marihuana. In holding the search unlawful, the court rejected the notion that it was incidental to Chadwick’s arrest. Said the court: "Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest” (433 US, at p 15; see, also, Arkansas v Sanders, 442 US 753, supra).

That defendant retained an expectation of privacy in the contents of his jacket pockets notwithstanding the fact of his arrest is beyond dispute. Indeed, it is difficult to imagine a more private receptacle where one might place one’s most personal items than the zippered recesses of a jacket. Defendant’s arrest, standing alone, did not vitiate that privacy interest by being converted into a license for law enforcement authorities to engage in a warrantless search of unlimited temporal and geographic scope. Once defendant had been removed from the automobile and placed under arrest, a search of the interiors of a private receptacle safely within the exclusive custody and control of the police may not be upheld as incident to his arrest (United States v Chadwick, 433 US 1, supra; Arkansas v Sanders, 442 US 753, supra). The car was in a secure place where it could have been easily guarded, its occupants under arrest and safely away from the vehicle, their removal to the police station imminent. There was, therefore, no reason why the search should not have awaited the issuance of a warrant.

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress granted and the indictment dismissed.

Gabrielli, J.

(dissenting). I respectfully dissent. Although I am in agreement with the standard legal principles enunciated by the majority, I cannot concur in what appears to be an obvious misapplication of those principles to the facts of this case.

A warrantless search based on probable cause is permissible if the facts underlying the search bring it within any of several narrow exceptions to the warrant requirement with which this court is fully familiar. One such exception to the warrant requirement is a search incident to a lawful arrest. Although this particular exception has had a somewhat uncertain history (compare Trupiano v United States, 334 US 699, with United States v Rabinowitz, 339 US 56), it is now well settled and cannot be disputed that a police officer making a valid arrest may legitimately engage in a limited search of both the person of the arrestee and "the area from within which he might gain possession of a weapon or destructible evidence” (Chimel v California, 395 US 752, 763) without first obtaining a search warrant. Moreover, although the general rationale for permitting warrantless searches under certain circumstances is the need to allow a police officer sufficient flexibility to protect himself from possible danger and to prevent the destruction of evidence (see, generally, Arkansas v Sanders, 442 US 753, 759), a warrantless search incident to a lawful arrest may be made "whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence” (United States v Chadwick, 433 US 1, 14).

To be sure, such a search is subject, as it should be, to careful judicial scrutiny before its fruits may be admitted into evidence. As the Supreme Court has recently stated, "warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the 'search is remote in time or place from the arrest’ * * * or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest” (United States v Chadwick, supra, at p 15). While these principles are readily articulated, their application to individual cases may seem, at first blush, to be a task of some complexity. This is so in large part because each case must turn upon its peculiar facts and "an apparently small difference in the factual situation frequently is viewed as a controlling difference in determining Fourth Amendment rights” (Arkansas v Sanders, 442 US 753, 757, supra). This observation is particularly apt when applied to a case such as this, in which all members of the court are agreed that the validity of the challenged search turns upon the degree to which the defendant and his property had come within the exclusive control of the police at the time of the search. Clearly, we are here presented with a valid arrest based upon probable cause. This is, as it must be, conceded by all. Moreover, there exists no dispute but that the officer’s search of the persons of the defendant and his companions and the initial search of the car for contraband were entirely proper. The only issue that divides this court, then, is whether the officer acted illegally by extending his search to include the pockets of the jackets thrown on the back seat of the automobile. The courts below, which by law, unlike this court, are empowered to resolve disputes of fact, have concluded that the jackets were within reach of the four suspects and had not yet been reduced to the exclusive control of the officer. I find no justification for disturbing this essentially factual determination and, based upon this finding, the conclusion that the search was incidental to a lawful arrest cannot be avoided.

Certainly there exists sufficient evidence in the record before us to support the factual findings made by the courts below. Indeed, this case is illustrative of the type of situation in which a warrantless search is most appropriate. We are not here faced with an extended search of a defendant’s property after the defendant has been completely subdued and all actual danger has passed. Rather, this search was conducted by a lone peace officer who was in the process of arresting four unknown individuals whom he had stopped in a speeding car owned by none of them and apparently containing an uncertain quantity of a controlled substance. The suspects were standing by the side of the car as the officer gave it a quick check to confirm his suspicions before attempting to transport them to police headquarters or radioing for assistance. The situation was still fluid, and neither the suspects themselves nor their property had as yet been reduced to the exclusive and certain control of the police. I cannot agree that under these circumstances the officer acted improperly in searching the jackets found on the back seat of the automobile. The potential for danger to the officer or for the destruction of evidence is patent, and thus the search must be deemed incidental to the arrest.

I must confess that I am somewhat puzzled by the rationale adopted by the majority of this court today, for it appears rather ingenuous. Instead of undertaking that careful factual analysis of the realities underlying the continuing encounter between the lone officer and the four suspects which is so necessary to fairly judge the reasonableness of the officer’s actions, the court premises its decision completely upon an uncertain assumption drawn from two isolated facts. Apparently the majority believes that since the suspects were standing outside the car at the time of the search and had been told that they were under arrest, both their persons and their property had thereby been conclusively and safely reduced to the complete control of the officer, as a matter of law. Although one might well wish that all criminal suspects could so readily be subdued as a matter of law, I cannot agree with a decision that requires a police officer to stake his very life upon the validity of such a questionable presumption.

Accordingly, I vote to affirm the order appealed from.

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

Order reversed, etc.

      . To the extent that these cases may be read to suggest otherwise, they are disapproved.

      . One searches the record in vain.for support of the dissenter’s claim that at the time of arrest — the point from which the predicate for the warrantless search is measured — "the jackets were within reach of the four suspects and had not yet been reduced to the exclusive control of the officer” (dissenting opn, p 454). Indeed, the facts, as found at the suppression hearing and affirmed by the Appellate Division, were to the effect that the jacket was searched after the defendant was removed from the vehicle and then placed under arrest.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Anthony Getch, Appellant. The People of the State of New York, Respondent, v Albert Marr, Appellant.
    Argued March 20, 1980;
    decided June 5, 1980

      POINTS OF COUNSEL

      Judith L. Turnock and William E. Hellerstein for appellant in the first above-entitled action.
    The trial court, by delivering a natural and probable consequences charge on intent in a case where appellant claimed he was intoxicated, thus making intent the only disputed issue, shifted the burden of disproving intent onto appellant, thereby depriving him of due process of law (US Const, 14th Arndt; NY Const, art I, § 6). (Sandstrom v Montana, 442 US 510; Patterson v New York, 432 US 197; Mullaney v Wilbur, 421 US 684; Matter of Winship, 397 US 358; Cohen v United States, 378 F2d 751, 389 US 897; Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230.)

      Eugene Gold, District Attorney (Eugene H. Scher of counsel), for respondent in the first above-entitled action.
    The court’s charge to the jury, taken as a whole, correctly set forth the applicable principles of law. It never shifted the burden of proof to appellant on any of the issues the jury was to consider. Assuming, arguendo, that error was committed, the error was harmless beyond a reasonable doubt. (Cupp v Naughten, 414 US 141; People v Russell, 266 NY 147; People v Robinson, 36 NY2d 224; Sandstrom v Montana, 442 US 510; United States v Robinson, 545 F2d 301; Mann v United States, 319 F2d 404; Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230.)

      Susan C. Thon and William E. Hellerstein for appellant in the second above-entitled action.
    The court by delivering a natural and probable consequences charge on intent shifted to appellant the burden of disproving his intent, thus depriving him of due process. (US Const, 14th Arndt; NY Const, art I, § 6.) (Sandstrom v Montana, 442 US 510; Patterson v New York, 432 US 197; Mullaney v Wilbur, 421 US 684; People v Gilligan, 42 NY2d 969; People v Flack, 125 NY 324; McCourt v People, 64 NY 583; Morissette v United States, 342 US 246;
      Matter of Winship, 397 US 358; Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230.)

      Mario Merola, District Attorney (Charles L. Bach, Jr., Alan D. Marrus and Steven R. Kartagener of counsel), for respondent in the second above-entitled action.
    I. Appellant was proven guilty beyond a reasonable doubt. II. The trial court’s extensive instructions on intent, which employed language from the Penal Law and the Model Penal Code, placed the burden of proof on the prosecution to prove intent beyond a reasonable doubt. (Sandstrom v Montana, 442 US 510; Matter of Winship, 397 US 358; Morissette v United States, 342 US 246; Agnew v United States, 165 US 36; People v Gray, 71 AD2d 295; People v Reyes, 71 AD2d 1034; People v Fournier, 70 AD2d 491; United States v Reeves, 594 F2d 536; United States v Chiantese, 560 F2d 1244; Harrington v California, 395 US 250; Chapman v California, 386 US 18.)
   OPINION OF THE COURT

Wachtler, J.

The question in these cases is whether the court in charging the jury on intent unconstitutionally shifted the burden of proof from the prosecutor to the defendant. In each case the Appellate Division has upheld the conviction. The defendants appeal claiming that the Supreme Court’s recent decision in Sandstrom v Montana (442 US 510) requires reversal and a new trial.

In People v Marr, the defendant, Albert Marr, and two others, Melvin Holley and one "Velvet”, allegedly beat and robbed a 66-year-old man in a Bronx residential hotel in February, 1977. The defendant was indicted for robbery and burglary in the first degree and related offenses.

At the trial the complainant testified that about 4 o’clock in the morning the three men broke into his room and beat him while one of them took his wallet containing $6. The defendant admitted entering the complainant’s room and striking him but claimed that he was merely attempting to break up a fight. According to the defendant he and Velvet had gone to the hotel to visit Holley who resided there. Defendant stated that after Velvet had left Holley’s room to use the men’s room, he heard an argument in the public hallway and saw the complainant and Velvet fighting outside the complainant’s room. The defendant intervened as the fight continued into the complainant’s room. In the process he struck both Velvet and the complainant, but only to break them apart and stop the fight. Thus he disclaimed any criminal intent and also denied taking the complainant’s property.

In charging the jury on intent the court stated: "[T]he law says that a person is presumed to intend that which he actually does.” At another point this was characterized as an "inference”, but "to sum up the whole concept” the court stated, "A person intends [the] natural and reasonable and probable consequences of his acts.” Defense counsel unsuccessfully objected to this portion of the charge. The defendant was convicted of burglary and robbery, both in the second degree (see Penal Law, §§ 140.25, 160.10).

On appeal the Appellate Division, First Department, modified by reducing the robbery conviction to robbery in the third degree (Penal Law, § 160.05) and otherwise affirmed. The defendant now claims that he is entitled to a new trial because the court’s charge on intent improperly shifted the burden of proof. Although this issue was not presented to the Appellate Division it is subject to review in this court (see CPL 470.35, subd 1).

In People v Getch, the defendant, Anthony Getch, in September of 1976, fled from the police after committing several traffic infractions while he was driving a stolen car in Brooklyn. During the course of a high speed chase, the vehicle driven by the defendant collided with the police car injuring one of the officers. The defendant then ran from the car and was arrested by the other officer after a brief struggle. He was charged with various crimes, including criminal possession of stolen property in the second degree and assault in the second degree. Both of these crimes require proof that the defendant acted intentionally (see Penal Law, §§ 165.45, 120.05, subd 3).

At the trial the arresting officer testified that the defendant smelled of alcohol, that his speech was slurred and, in the officer’s opinion, the defendant was intoxicated. In summation defense counsel emphasized the proof of intoxication and asked the court to charge "on intoxication and how it negates the intent to commit crimes.” The court granted this request. The court later gave a very comprehensive charge on intent, during which it made the following remarks despite defendant’s objection: "Upon the question of intent, you may infer that a person intends that which is the natural and necessary and probable consequences of the act done by him. And unless the act was done under circumstances to preclude existence of such intent, you have a right to find from the results produced an intention to effect it.”

The defendant was convicted on the possession and assault charges and was also found guilty of unauthorized use of a vehicle. On appeal he argued that the court’s instructions on intent improperly shifted the burden of proof to him on that particular element. The Appellate Division, Second Department, affirmed. The court noted that it would have been better if the trial court had not charged the first part of the second sentence but, nevertheless, concluded that the charge, read as a whole, made "it abundantly clear that the burden of proof was not shifted to defendant but was borne by the prosecution, requiring proof beyond a reasonable doubt as to every element of each crime charged.” On appeal to our court the defendant urges the charge was erroneous and that the convictions on the two counts involving intent should be reversed and a new trial ordered.

After the Appellate Divisions had ruled on these cases, the Supreme Court held in Sandstrom v Montana (442 US 510, 515) that it was unconstitutional for the court to instruct the jury that " '[t]he law presumes that a person intends the ordinary consequences of his voluntary acts’ ”, in a case where intent was an element of the crime charged. It was emphasized, however, that in that case the instruction had been given without qualification. The members of the jury "were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it” (Sandstrom v Montana, supra, at p 515). Under those circumstances, it was noted, the jury could reasonably interpret the instruction as (1) a conclusive presumption, i.e., "an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption” or (2) a burden shifting presumption, i.e., "a direction to find intent upon proof of the defendant’s voluntary actions (and their 'ordinary’ consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than 'some’ evidence — thus effectively shifting the burden of persuasion on the element of intent” (Sandstrom v Montana, supra, at p 517). The court concluded that either interpretation would deprive the defendant of his right to due process, which requires the prosecutor to prove every element of the crime charged beyond a reasonable doubt. It was observed, however, in the concurring opinion, that "if this charge had, in the words of the Court, 'merely described a permissive inference,’ ante, at p 514, it could not conceivably have run afoul of the constitutional decisions cited by the Court in its opinion” (Sandstrom v Montana, supra, at p 527).

There is no contention in these cases that Sandstrom is inapplicable to trials concluded prior to the date it was decided. We note, however, that the Supreme Court gives retroactive effect to its decisions where "the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function” (Ivan V. v City of New York, 407 US 203, 204). This category has been held to include rulings which relieve the State of the burden of proving guilt beyond a reasonable doubt (Ivan V. v City of New York, supra) or shift the burden of proof to the defendant (Hankerson v North Carolina, 432 US 233; see, also, People v Patterson, 39 NY2d 288, 296). Thus the Sandstrom holding will be applied to all cases still in the appellate process. Measured against that standard we conclude there should be a reversal in the Marr case and an affirmance in the Getch case.

In the Marr case the court’s instructions on intent followed, almost verbatim, the terms of the Sandstrom charge. More important, the court never explained or qualified the statements by informing the jury that the presumption or "inference” was permissive and that it was for them to decide whether the conclusion should be drawn after considering all of the circumstances. The prosecutor notes that elsewhere in the charge and supplementary instructions the court informed the jury that the burden of proof was on the State to prove every element, including intent, beyond a reasonable doubt. But as the court observed in Sandstrom (at p 518, n 7) these general instructions cannot be deemed sufficient to keep the burden where it belongs when the presumption has been charged because the jury may interpret the two sets of instructions as indicating that the presumption is the means by which the State meets its burden of proving intent beyond a reasonable doubt.

In the alternative the prosecutor urges that if the court erred, the error was harmless. The defendant, on the other hand, argues that the harmless error rule is not applicable to this type of defect. This question was left unanswered in Sandstrom v Montana (supra, at pp 525-527). We also find it unnecessary to resolve that issue here. For the purposes of this case it is sufficient to note that the erroneous charge on intent could not be said to be harmless in view of the fact that the defendant’s intent in entering the complainant’s apartment and participating in the incident was the vital issue at trial which, on the conflicting testimony posed an open credibility question. Thus the conviction must be set aside and a new trial ordered.

In the Getch case the defendant claims that the use of the "natural consequences” charge and the phrase "unless the act was done under circumstances to preclude existence of such intent” effectively shifted the burden of proof to him on the element of intent. The court, however, did not err in informing the jury that they "may infer that a person intends that which is the natural and necessary and probable consequences of the act done by him.” He did not say that they had to draw the conclusion or that "the law presumes” it. He said only that they may do so, and had a "right to”, and left it up to them. There is nothing in the Sandstrom case to indicate that this is no longer a permissible inference or that it would be error for the court to draw this possibility to the jury’s attention (see Sandstrom v Montana, supra, at p 519, n 9, and at p 527). In addition we note that immediately before and after mentioning the inference, the court emphasized to the jury that it should consider all the evidence, all the testimony and all the circumstances surrounding the incident "to determine if there was intent”. Thus it cannot be said that the jury was left with the impression that they should or could infer intent solely from the doing of a particular act (compare United States v Robinson, 545 F2d 301, 305).

Nor do we agree with the defendant that the court’s use of the "unless” clause could have lead the jury to believe in this case that the defendant had the burden of proving lack of intent. In order to reach that conclusion they would have to make a fairly obvious misinterpretation of the court’s remark. More to the point, they would also have to ignore the court’s express and contemporaneous explanation to the contrary in which the court stated "The burden is on the People to prove the intent of the defendant, beyond a reasonable doubt. If you find, from the evidence, that the defendant did not have a conscious objective to bring about the violation of law, you must find the defendant not guilty of this crime.”

In light of the Sandstrom holding the courts in future cases, should, and no doubt will, avoid the use of phrases which could be construed or even misconstrued as shifting any part of the burden to the defendant. In our view, however, the Sandstrom case does not call for a pinpoint analysis of every charge, nor does it identify as fatally flawed all charges in which a phrase taken out of context is susceptible to a misconstruction implying that the defendant had the burden of disproving intent when this would be completely inconsistent with the court’s explicit and timely instruction on this precise issue.

Accordingly, in the Marr case the order of the Appellate Division should be reversed and a new trial granted and in the Getch case the order of the Appellate Division should be affirmed.

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

In People v Getch: Order affirmed.

In People v Marr: Order reversed and a new trial ordered.

      . The defendant was also charged with driving while intoxicated but the jury found him not guilty on that count.

      . We also note that the Sandstrom decision did not change the law in this State (see People v Thomas, 50 NY2d 467, decided herewith).

      . The court’s point, of course, was that the inference could not be drawn against the defendant if the facts precluded it.


author: Wachtler, J. Fuchsberg, J.

text:
    The People of the State of New York, Appellant, v Elery Thomas, Also Known as Thomas Elery, Respondent.
    Argued March 20, 1980;
    decided June 5, 1980

      POINTS OF COUNSEL

      Mario Merola, District Attorney (Kenneth R. Larywon and Timothy J. McGinn of counsel), for appellant.
    I. Proof of appellant’s guilt of intentional murder was overwhelming. II. Defendant was not deprived of a fair trial by the trial court’s charge on intent. (People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; People v McLucas, 15 NY2d 167; People v Thomas, 71 AD2d 280; Cupp v Naughten, 414 US 141; Agnew v United States, 165 US 36; People v Reyes, 71 AD2d 1034; United States v Chiantese, 560 F2d 1244; People v Cavallerio, 71 AD2d 338; People v Fournier, 70 AD2d 491.)

      Erica Horwitz and William E. Hellerstein for respondent.
    The court below correctly held that appellant was deprived of due process when the court, instructing the jury on the critical issue of intent, charged that the law presumed that a person intended the natural and probable consequences of his act (US Const, 14th Amdt; NY Const, art I, § 6). (Sandstrom v Montana, 442 US 510; Matter of Winship, 397 US 358; Morissette v United States, 342 US 246; Mullaney v Wilbur, 421 US 684; Agnew v United States, 165 US 36; Chapman v California, 386 US 18; People v Ciaccio, 47 NY2d 431; People v Gruden, 42 NY2d 214; Bollenbach v United States, 326 US 607; People v Henderson, 41 NY2d 233.)
   OPINION OF THE COURT

Wachtler, J.

The defendant was convicted of murder for stabbing and killing a woman and her two children in their Bronx apartment. The Appellate Division reversed and ordered a new trial on the ground that the court’s charge on intent violated the Supreme Court’s recent decision in Sandstrom v Montana (442 US 510). The Appellate Division also held that the error was not harmless and was reviewable as a question of law although the defendant had not preserved the point by objecting to this portion of the charge at trial. The People have appealed.

On the afternoon of March 21, 1977 the defendant and a coworker, Dale Turner, went to the defendant’s apartment for lunch. Soon after their arrival, the defendant said he was going upstairs "to check on” Deborah Williams, who also resided in the building with her two daughters, aged three and five. When the defendant returned he was crying and he told Turner that "Deborah is dead”. Turner called the police. When the police arrived they found Deborah Williams dead in her apartment with a broken knife in her back. They also found, that her two daughters had been stabbed but were still alive. The children, however, later died at the hospital. The autopsy confirmed that each of the victims had died as the result of numerous stab wounds to the body and head — 25 wounds in the case of one of the children. In each instance the victims’ skull had also been fractured.

The defendant initially told the police that he and Deborah Williams were "just friends”. Other witnesses, however, later informed the police that the defendant was her lover, had proposed marriage and had keys to her apartment. The investigation also indicated that the defendant was a jealous lover who suspected that she was seeing other men and had said that he would kill her for doing so.

Approximately a week after the killing the police questioned the defendant again. This time, after being advised of his rights, the defendant confessed to the crimes and gave the police and prosecutor three statements. He admitted that he had gone to the Williams’ apartment at 1:00 a.m. on March 21 to talk to Deborah about her seeing another man. An argument followed, the defendant hit her and, when she turned her back, he stabbed her with a knife and broke the handle. He also punched and kicked her as she fell to the floor. When the children began to cry the defendant went into the next room and stabbed them with a pair of scissors. Returning to the living room he found their mother still alive. She asked why one of the girls was crying and he said that she wanted to come into the room. He then left and stabbed the girl several more times. He said that he remained in the apartment until approximately 4:00 a.m. Before leaving he went around and stabbed the victims again.

At the trial the defendant took the stand, denied his guilt and claimed that the police had tricked and coerced him into making the three confessions. He admitted being in the Williams’ apartment earlier that night but testified that he had left before the killings took place.

The court instructed the jury that the defendant was charged with three counts of murder in the second degree, which requires proof of intent to kill (Penal Law, § 125.25, subd 1). At the defendant’s request the court also submitted the lesser included offense of manslaughter in the first degree, which requires proof of intent to inflict serious bodily injury (Penal Law, § 125.20, subd 1). The court informed the jury, in general terms, that the People had the burden of proving the defendant’s guilt beyond a reasonable doubt and that the burden never shifts to the defendant. With respect to the element of intent the court emphasized that this was a matter for the jury to decide, and that in resolving the issue they must consider "the facts and all the surrounding circumstances.” The court, however, also stated that "the law says that a person is presumed to intend the natural and probable consequences of his act” and "is presumed to intend that which he actually does.”

The defendant concededly did not object to this portion of the charge at trial. Nevertheless he claimed on appeal that the trial court’s reference to the "presumption” constituted reversible error. The Appellate Division agreed, relying on Sandstrom v Montana (442 US 510, supra) in which the Supreme Court held that charging on the "presumption” without qualification violates due process because the jury may reasonably conclude that the presumption is conclusive or that the burden of proof has shifted to the defendant on the element of intent (see, also, People v Getch, 50 NY2d 456, decided herewith). Here the Appellate Division (at p 283) held that the court’s charge effectively "absolved the People of the duty to prove an essential element of murder in the second degree, viz., intent to kill.” The Appellate Division also rejected the People’s contentions that the error was harmless and that it was not reviewable because the defendant had not preserved the point by objecting to the charge at trial. With respect to the preservation issue the Appellate Division (at p 285) stated: "[T]he Court of Appeals has noted 'no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right’. (People v McLucas, 15 NY2d 170, 172; see, also, People v Patterson, 39 NY2d 288, affd 432 US 197.)” Accordingly, the Appellate Division reversed on the law.

As a general rule points which were not raised at trial may not be considered for the first time on appeal (CPL 470.05, subd 2; People v Robinson, 36 NY2d 224; People v Gurley, 42 NY2d 1086; People v Kibbe, 35 NY2d 407, 413-414, affd sub nom. Henderson v Kibbe, 431 US 145). There is, however, one very narrow exception as we noted in People v Patterson (supra). In that case we said that no objection is necessary to preserve a point of law for appellate review when the procedure followed at trial was at basic variance with the mandate of law prescribed by Constitution or statute (People v Patter son, supra, at pp 295-296; see, also, People v Michael, 48 NY2d 1). It is to be noted that in Patterson the defendant challenged the constitutionality of section 125.25 (subd 1, par [a]) of the Penal Law which places upon the defendant the burden of proving extreme emotional disturbance as an affirmative defense to murder. We held that this argument could be raised for the first time on appeal. It was noted (at p 296) that if “the burden of proof was improperly placed upon the defendant, defendant was deprived of a properly conducted trial.” We also recognized that the defendant’s failure to object was excusable because the statutory practice had previously been deemed valid and had only been called into question by an intervening Supreme Court decision.

In Patterson then the trial court had expressly and unequivocally instructed the jury, as the statute directed, that the burden of proof was on the defendant to prove the affirmative defense. In the case now before us, on the other hand, there is no contention that the court expressly shifted the burden of proof to the defendant or explicitly relieved the People of their burden of proving every element of the crimes charged. Rather it is urged that a portion of the court’s charge is capable of being so interpreted and having this effect although, as indicated, the court specifically instructed the jury that the burden was on the People throughout. A claim that the court erred by expressly shifting the burden of proof to the defendant or relieving the People of their obligation to prove the defendant’s guilt beyond a reasonable doubt presents a more basic defect, and is potentially more prejudicial, than a contention that a portion of the charge may be interpreted as having this effect. Thus when a court’s specific instructions on the burden of proof properly place the burden on the People, a claim that a portion of the charge could, in the particular case, be interpreted as having a contrary effect, does not come within the narrow exception to the rule that objections to the charge must be made at trial where the potential error can be corrected or avoided (People v Robinson, 36 NY2d 224, supra).

We recognize that at trial the defendant did not have the benefit of the Sandstrom decision which was announced after the trial was concluded. But Sandstrom did not alter the law of this State. For more than a century, the charge condemned in Sandstrom has been held by this court, to be erroneous as a matter of State law (Stokes v People, 53 NY 164, 179; People v Baker, 96 NY 340, 350; People v Downs, 123 NY 558, 564-568; People v Flack, 125 NY 324, 335; People v Weiss, 290 NY 160, 171). Thus the defendant’s failure to object cannot be excused on the ground that he was confronted at trial with a practice held or deemed to be valid which was only called into question by a Supreme Court decision announced while the case was on appeal.

We also recognize that charging the "presumption” without qualification, as the defendant contends was done here, must now be viewed as a violation of the Constitution as well as State law. But the rule requiring a defendant to preserve his points for appellate review applies generally to claims of error involving Federal constitutional rights (see People v Tutt, 38 NY2d 1011). The Supreme Court has recently indicated that when the defendant claims, for the first time on appeal, that the court’s charge erroneously shifted the burden of proof, the State courts are free to enforce "the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error” (Hankerson v North Carolina, 432 US 233, 244, n 8).

The Appellate Division may, as a matter of discretion, consider claims of error which were not properly preserved for review (CPL 470.15, subd 6, par [a]). In this case though the Appellate Division reversed on the law after concluding, erroneously, that the alleged error in the charge presented a reviewable question of law despite the lack of objection. Since the Appellate Division erred in reversing on the law, its order must be reversed (People v Cona, 49 NY 26, 33-34).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for review of the facts.

Fuchsberg, J.

(concurring in result). I too vote to reverse, but, doing so, would hold that (1) that the Appellate Division was correct in holding that the unobjected to error in the charge on the burden of proof on intent presented a reviewable question of law and (2), that, in the context of this case, the error was harmless.

I

Turning first to the reviewability issue, I respectfully suggest that it is unfortunate in the extreme that the court takes this occasion to cut back on the hard won exemptions by which we have softened the rigors of the preservation doctrine when applied to certain fundamental constitutional rights (see, e.g., People v Michael, 48 NY2d 1 [double jeopardy]; People v Ermo, 47 NY2d 863 [right to counsel]; People v Patterson, 39 NY2d 288, affd 432 US 197 [burden of proof]; People v McLucas, 15 NY2d 167 [comment on defendant’s failure to take stand]).

The majority opinion, recognizing that, in Patterson, the absence of a timely objection did not deter us from reviewing the contention that there had been an unconstitutional shift of the burden of proof, now seeks to distinguish that case from the present one by resort to the rationale that Patterson’s "failure to object was excusable because the statutory practice had previously been deemed valid and only been called into question by an intervening Supreme Court decision” (at p 472), while Sandstrom v Montana (442 US 510), the decision substantively governing the present case, did not enunciate any new rule of law. To support this thesis, it goes on to cite several opinions of this court disapproving a "natural and probable consequences” charge (e.g., Stokes v People, 53 NY 164, 179).

But our decisional law on that score is hardly so one-sided. However we may differ with it in the opinions we hand down today, the simple fact is that, as this court took the pains to point out in People v Lieberman (3 NY2d 649, 652-653), it is "well established, both here and in sister States, that a person is presumed to intend the natural consequences of his act (Darry v. People, 10 N. Y. 120; Ruloff v. People, 45 N. Y. 213; Foster v. People, 50 N. Y. 598; Lyons v. State, 30 Tex. Cr. Rep. 642; Reeves v. Territory, 10 Okla. 194; Brennan v. People, 15 Ill. 511; Stephens v. State, 42 Ohio State 150; Mitchell v. Commonwealth, 74 Va. 845; 1 Warren on Homicide, p. 233; Wharton on Homicide [3d ed.], § 418; 22 C. J. S., Criminal Law, § 87, p. 155).” An unmistakably apt illustration is Thomas v People (67 NY 218, 225), where in approving a charge that the manner in which a deadly weapon was used furnished "presumptive evidence of an intent * * * to take life”, the court observed, "This portion of the charge was simply upon the fact of killing and the intention to kill. The fact that the prisoner plunged this pointed knife into what he knew to be a vital part of the body must raise a presumption that he intended to take life. Its natural result would be to destroy life, and he must be presumed to have intended the natural consequences of his act just as if he had aimed at the heart of the deceased and fired a gun”. Moreover, such manner of charge was so well accepted that it has never previously been challenged on constitutional grounds in this State (see People v Gray, 71 AD2d 295, 297).

Against this backdrop, I suggest that it is disingenuous to fault counsel for not anticipating the Sandstrom declarations. In short, there is no less reason to review in this case than there was in Patterson.

II

Now, as to my view that the errors in the charge on intent, concededly one not likely to be chosen as the model for a pattern jury instruction, could not have affected the outcome of the trial and therefor was harmless as a matter of law.

I start with the caveat, not stated here for the first time, that one should not always assume that "from the remote fastness of an appellate court, the pulsebeat of the courtroom can be perceived with sufficient reliability to predict whether, when there has been such error, the result would have been affected. Put another way, an appellate court is too different from a lay jury to permit one to substitute for the other” (People v Crimmins, 38 NY2d 407, 425 [dissenting opn]). That said, it is still true that, since Judges, however they try for perfection, are not immune from trial errors, and since not every error renders a trial unfair, the law’s responsibility may be deemed acquitted when the trial it has provided, though imperfect, is fair (People v Glass, 43 NY2d 283, 286). Moreover, because errors of all degrees may occur at any stage of a trial, their harmfulness cannot be made to depend on such an unswerving absolute as their locus in the constellation of trial events. An error in a charge, taken, as here, in the factual and legal trial context in which it occurs, may or may not be inconsequential; so too, a departure from the rules of evidence may or may not be devastating. In the end, each charge must stand on its own circumstances. (See, generally, Principles for Application of the Harmless Error Standard, 41 U of Chicago L Rev 616.)

Withal, while certain errors, such as denial of the right to counsel, can never be deemed harmless (People v Felder, 47 NY2d 287, 295), others, including ones of Federal constitutional magnitude, are subject to harmless error analysis (People v Almestica, 42 NY2d 222, 226; People v Crimmins, 36 NY2d 230). Specifically, in a string of cases, both this court (e.g., People v Sangamino, 258 NY 85, 88-89; People v Wagner, 248 NY 553; People v Dunbar Contr. Co., 215 NY 416, 424-425 [Cardozo, J.] [also involving an alleged error in charging as to a presumption]; see, also, People v Buchalter, 289 NY 181, 224-230 [Lehman, Ch. J., concurring]) and the United States Supreme Court (Hamling v United States, 418 US 87, 107; cf. Harrington v California, 395 US 250) have held that erroneous jury charges fall within this category.

For, in weighing such an error, we must "form a picture of the whole trial [and] * * * endeavor to see that picture as the jurors saw it” (People v Buchalter, 289 NY 181, 224, supra). Put another way, while there is "no yardstick to measure error and differentiate between the technical and the substantial, an underlying and controlling principle is at hand. If study of the case on appeal persuades the court that the minds of the jurors were clearly ■ directed to the true issue involved, that they were not misled or confused to defendant’s detriment, then the [harmless error] mandate * * * should be followed — even though the appellate judges may disagree with the verdict at which the jury arrived” (People v Mleczko, 298 NY 153, 162).

These are precisely the considerations that, however labeled, in my view are implicit in the companion cases of People v Marr and People v Getch (50 NY2d 456). In contrast to Patterson and Mullaney v Wilbur (421 US 684), where the trial courts expressly and unequivocally and uncompromisingly instructed the juries that the defendants bore the burden of proof on particular issues, our close analysis of what I regard as the comparatively more ambivalent Marr and Getch charges bespeaks a concern with the totality of the circumstances. In this respect, our decisions reflect Sandstrom’s description of similar instructions as creating a "risk” or "possibility” of prejudice, as opposed to a conclusion that such an undesirable result necessarily followed (442 US 510, 514-515, 519). My indorsement of a harmless error approach also finds support in such sources as State v Hock (54 NJ 526, cert den 399 US 930), a decision of the Supreme Court of New Jersey that closely parallels the instant case. It was there held that a charge that the presence of a revolver in an automobile was "presumptive evidence” of possession by an occupant, though unconstitutionally shifting the burden of proof of that element, was not "such grievously prejudicial error” as to compel reversal. The Hock court’s examination of all the circumstances, including the strength of the State’s proof and the effect of the defendant’s own testimony, corroborates the propriety of a harmless error analysis here. (See, also, Hamling v United States, 418 US 87, 108 [erroneous instruction that jury could consider national community standard in obscenity case]; United States v Mikelberg, 517 F2d 246, 253-254, cert den 424 US 909 [element of crime erroneously deemed established as a matter of law rather than submitted to jury as one of fact].)

These principles in mind, any fair resumé of the facts makes clear that, for all practical purposes, the existence of intent here was undisputed and indisputable. When one gets right down to it, all the contest was about was the veracity of defendant’s alibi claim and the voluntariness of his confessions. The objective and undeniable physical facts demonstrate beyond question that, if a directed verdict were ever permissible in a criminal prosecution, it would have been justified in this case on the element of intent.

The People’s proof revealed that shortly before the crimes were uncovered Thomas told an acquaintance, Dale Turner, that he was going to "check on” Deborah Williams, who resided in the same tenement house as did Thomas. When defendant later returned to state that he had found Deborah dead, Turner called the police, who discovered Deborah in her blood-splattered apartment, a knife imbedded in her back. There was no sign of forced entry. In an adjoining room, still alive, were her mortally wounded daughters, three-year-old Karen and five-year-old Michele.

The uncontradicted medical testimony was that Karen alone had suffered 25 stab wounds plus multiple skull fractures. Michele had been stabbed nine times and her skull broken in five places. All these stab wounds were apparently caused by a pair of scissors. The mother sustained two skull fractures and 11 stab wounds. The knife with which the latter were inflicted had been driven through her back with sufficient force for it to protrude through her chest. In all, the stab wounds alone numbered 45.

Thomas at first told the police that he and Deborah were "just friends”. During the course of the investigation, however, a different picture developed. Conversations with others revealed that defendant was in love with Deborah, had proposed to her, possessed her photograph and a set of keys to her apartment, and had, at least on occasion, shared her bed. Moreover, he had appeared extremely jealous and, three weeks before her death, had threatened to kill her when he learned she had entertained an old friend. Confronted with these revelations, the defendant, who the record shows was given Miranda warnings, made three confessions in which he admitted that, on the night of her death, he had visited Deborah’s apartment, where, in the course of a quarrel over her relationship with another man, he first struck her manually and then stabbed her in the back and, when she attempted to rise, repeatedly punched and kicked her. In the statements he further recounted how, upon hearing the children crying in their bedroom, he decided to silence them and, finding himself unable to extricate the knife because its handle had broken off while it was being plunged into their mother’s back, he used scissors to despatch them. Explicit too was his blow-by-blow detailing of how he repeatedly turned from victim to victim to use the scissors, his feet and his fists until the carnage was complete.

The defense at trial consisted, in the main, of an alibi and a claim that the confessions were the product of threats of physical harm by the police. The alibi, unsupported by any testimony but that of defendant, was premised on protestations of his fondness for Deborah and her children, on denials that he had ever objected to her sharing her affections with others and on his insistence that, though he had visited her on the fateful evening, he was elsewhere at the hour the People claimed the attacks had taken place. The confessions, of course, were material on motive and the identity of the killer. However, no more than the self-standing, unimpeached and unrebutted physical aftermath of the crimes — caused by the administration of not merely one or two or three, or even 10, but literally dozens of blows and stabbings — was needed to establish beyond debate that, whoever the perpetrator, he could not have lacked the intent to kill.

In this factual framework, the defect in the charge to Elery Thomas’ jury must be found harmless. All the more is this so since the prejudice that might be thought to emanate from its erroneous presumption language is effectively diluted, if not minimized, by the trial court’s further instructions: "Intent is a mental operation that can be proved usually only by facts and circumstances surrounding the acts and events leading up to and following them. * * * The intent mentioned in the law is determined from the facts and all the surrounding circumstances. * * * The whole question of the intent of a witness, its effect on the testimony is for you, the jury, to decide. * * * It is incumbent upon the People before they demand a finding of guilt that they tear away [defendant’s] cloak of innocence by proof of [his] guilt beyond a reasonable doubt. This is a burden which remains upon the People throughout the trial and it never shifts to the defendant. * * * The first element that you must find beyond a reasonable doubt is that the defendant formed the intent to cause the death and, in that, you have a right to consider * * * the nature and the alleged means used, to wit: a knife * * * and also a scissors * * * and all of the other surrounding circumstances, number of wounds, et cetera.” The result was that the likelihood that defendant would suffer prejudice from the ill-chosen phrasing was small indeed. Quite plainly, the issue at trial was the identity of the perpetrator, in comparison to which the question of intent receded far into the background. And, in the context of the quantity of the acts by which the crimes were committed and the quality of the People’s proof, it is almost inconceivable that the residual error confused the jury.

In sum, considered on their merits, the facts which here spelled out an unmistakable intent to kill or, at the very least, a depraved indifference to human life (Penal Law, § 125.25, subds 1, 2) were too overwhelming to avoid the conclusion that the charge’s imperfection was harmless beyond a reasonable doubt (see Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230, 237-238, supra).

It is for these reasons that, though I concur in the reversal of the order of the Appellate Division, I cannot accept the majority’s rationale for doing so.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Meyer concur with Judge Wachtler; Judge Fuchsberg concurs in result in a separate opinion.

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

       The cases cited in the concurring opinion do not, in fact, hold to the contrary. People v Lieberman (3 NY2d 649) did not involve a claim of error in the charge, but a contention that the evidence was legally insufficient to support a conviction. In such a case, of course, an appellate court should "presume” that the defendant intended the natural consequences of his acts because the court must view the evidence most favorably to the prosecution by drawing any inferences which a jury would be permitted to draw at trial (People v Benzinger, 36 NY2d 29, 32). In Thomas v People (67 NY 218, 225) the trial court’s reference to the defendant’s acts as "presumptive evidence” of intent, was held not to be reversible error since the court had "not charged that the evidence was conclusive” and had, indeed, informed the jury that it did not necessarily establish intent, "you might find the contrary”, it is simply "evidence from which such a conclusion might be drawn, according as the jury shall find from all the circumstances in the ease” (emphasis added). That decision obviously does not constitute an indorsement of a Sandstrom charge (see People v Getch, 50 NY2d 456, decided herewith). In fact none of the cases from this court cited in the concurring opinion hold that it is proper for the court to charge the jury, without qualification, that the law presumes that one intends the natural consequences of his acts, as the court had charged in Sandstrom. On the contrary, as noted above, when confronted with that precise issue we have repeatedly held for more than a century that it is not proper to give that instruction in this State. It has been recognized that this rule is well settled in New York (Richardson, Evidence [10th ed], § 90).

       In law, the term "presumption”, though sometimes carelessly employed as a synonym for "inference”, is a most consequential evidentiary concept. In the absence of sufficient rebuttal evidence, a true presumption requires the trier of fact to find that the "presumed fact” exists. It is, of course, to be distinguished from a so-called "conclusive” or "irrebuttable” presumption, which in reality is a substantive rule of law. (See, generally, People v Leyva, 38 NY2d 160, 168 et seq.; 9 Wigmore, Evidence [3d ed], §§ 2490-2492; Richardson, Evidence [10th ed — Prince]#-§§ 55-57.)


author: Meyer, J. Jones, J.

text:
    Frances Morone, Also Known as Frances Cross, Appellant, v Frank Morone, Respondent.
    Argued March 28, 1980;
    decided June 6, 1980

      POINTS OF COUNSEL

      Joel R. Brandes, Robert W. Kahn, P. C., Andrew F. Capoccia, P. C., and Peter K. Levine for appellant.
    I. The courts below erred in dismissing the second cause of action. Since an express agreement was pleaded, the complaint was legally sufficient to state a cause of action. (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; Matter of Gorden, 8 NY2d 71; Severino v Salisbury Point Co-ops., 21 AD2d 813; Foley v D’Agostino, 21 AD2d 60; Rhodes v Stone, 63 Hun 624; Sanger v French, 157 NY 213; McCall v Frampton, 99 Misc 2d 159; Sharp v Kosmalski, 40 NY2d 119.) II. Plaintiff’s first cause of action is sufficient and sets forth a cause of action cognizable at law. (Matter of Gorden, 8 NY2d 71; Rhodes v Stone, 63 Hun 624; Dombrowski v Somers, 41 NY2d 858; Robinson v Raynor, 28 NY 494; Matter of Gallagher v Brewster, 153 NY 364; Robinson v Munn, 238 NY 40; Matter of Blake, 134 Misc 902; Matter of Adams, 1 AD2d 259, 2 NY2d 796; Ulrich v Ulrich, 136 NY 120; Shapira v United Med. Serv., 15 NY2d 200.) III. As a matter of public policy, New York should recognize express or implied contracts between nonmarital partners to the same extent as agreements between any other unmarried persons. (McCullon v McCullon, 96 Misc 2d 962; Matter of Sprinzen [Nomberg], 46 NY2d 623.)

      James H. Doran for respondent.
    I. A man and woman living together for 23 years without marriage in a meretricious relationship that produced two children did not create a valid contract whereby the man was to pay the woman for her services. (Matter of Gorden, 8 NY2d 71.) II. The second cause of action based on a purported partnership is insufficient in law since no lawful partnership agreement is set forth. (Dombrowski v Somers, 41 NY2d 858; Matter of Gorden, 8 NY2d 71; Angresani v Tozzi, 217 App Div 642, 245 NY 558.) III. Matters of public policy of the State should be left to the Legislature.
   OPINION OF THE COURT

Meyer, J.

Presented by this appeal are the questions whether a contract as to earnings and assets may be implied in fact from the relationship of an unmarried couple living together and whether an express contract of such a couple on those subjects is enforceable. Finding an implied contract such as was recognized in Marvin v Marvin (18 Cal 3d 660) to be conceptually so amorphous as practically to defy equitable enforcement, and inconsistent with the legislative policy enunciated in 1933 when common-law marriages were abolished in New York, we decline to follow the Marvin lead. Consistent with our decision in Matter of Gorden (8 NY2d 71), however, we conclude that the express contract of such a couple is enforceable. Accordingly, the order of the Appellate Division dismissing the complaint should be modified to dismiss only the first (implied contract) cause of action and as so modified should be affirmed, with costs to plaintiff.

On a motion to dismiss a complaint we accept the facts alleged as true (219 Broadway Corp. v Alexander’s Inc., 46 NY2d 506, 509) and determine simply whether the facts alleged fit within any cognizable legal theory (see Rovello v Orofino Realty, 40 NY2d 633).

Plaintiff alleges that she and defendant have lived together and held themselves out to the community as husband and wife since 1952 and that defendant acknowledges that the two children born of the relationship are his. Her first cause of action alleges the existence of this long-continued relationship and that since its inception she has performed domestic duties and business services at the request of defendant with the expectation that she would receive full compensation for them, and that defendant has always accepted her services knowing that she expected compensation for them. Plaintiff suggests that defendant has recognized that their economic fortunes are united, for she alleges that they have filed joint tax returns "over the past several years.” She seeks judgment in the amount of $250,000.

The second cause of action begins with the repetition and reallegation of all of the allegations of the first cause of action. Plaintiff then alleges that in 1952 she and the defendant entered into a partnership agreement by which they orally agreed that she would furnish domestic services and defendant was to have full charge of business transactions, that defendant "would support, maintain and provide for plaintiff in accordance with his earning capacity and that defendant further agreed on his part to take care of the plaintiff and do right by her,” and that the net profits from the partnership were to be used for and applied to the equal benefit of plaintiff and defendant. Plaintiff avers that defendant commanded that she not obtain employment or he would leave her, and that since 1952 the defendant has collected large sums of money "from various companies and business dealings.” Finally, plaintiff states that since December of 1975 defendant has dishonored the agreement, has failed to provide support or maintenance, and has refused her demands for an accounting. She asks that defendant be directed to account for moneys received by him during the partnership.

Special Term dismissed the complaint, concluding that no matter how liberally it was construed it sought recovery for "housewifely” duties within a marital-type arrangement for which no recovery could be had. The Appellate Division affirmed because the first cause of action did not assert an express agreement and the second cause of action, though asserting an express partnership agreement, was based upon the same arrangement which was alleged in the first cause of action and was therefore "contextually inadequate”. The dissenting Justice was of the view that while the first cause of action was legally insufficient as premised upon an implied contract, the second, expressing as it does an explicit agreement, should have been sustained.

Development of legal rules governing unmarried couples has quickened in recent years with the relaxation of social customs (Douthwaite, Unmarried Couples and the Law, ch 4, passim). It has not, however, been a development free of difficult problems: Is the length of time the relationship has continued a factor? Do the principles apply only to accumulated personal property or do they encompass earnings as well? If earnings are to be included how are the services of the homemaker to be valued? Should services which are generally regarded as amenities of cohabitation be included? Is there unfairness in compensating an unmarried Tenderer of domestic services but failing to accord the same rights to the legally married homemaker? Are the varying types of remedies allowed mutually exclusive or cumulative? (See, generally, Douthwaite, supra; and Clark, J., concurring and dissenting in Marvin v Marvin, supra.)

New York courts have long accepted the concept that an express agreement between unmarried persons living together is as enforceable as though they were not living together (Rhodes v Stone 63 Hun 624, opn in 17 NYS 561; Vincent v Moriarty, 31 App Div 484), provided only that illicit sexual relations were not "part of the consideration of the contract” (Rhodes v Stone, supra, at 17 NYS, p 562, quoted in Matter of Gorden, 8 NY2d 71, 75, supra). The theory of these cases is that while cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation, neither does cohabitation disable the parties from making an agreement within the normal rules of contract law (Matter of Gorden, supra, at p 75; see Ann., 94 ALR3d 552, 559).

Even an express contract presents problems of proof, however, as Matter of Gorden illustrates. There Ann Clark and Oliver Gorden moved from Brooklyn to West Fulton, in Schoharie County, where Gorden acquired a tavern in his own name. For seven years Clark and Gorden operated the tavern without other employees, she performing both the work required by her duties in the tavern and by their home life. They lived together and were known in the community as husband and wife until he died. Clark then filed a claim against the estate predicated upon an oral contract pursuant to which Gorden agreed to compensate her for the value of her services, to marry her, to grant her the same rights as she would have as his wife, and to make a will to compensate her. The Surrogate denied the claim because of the "meretricious” relationship. The Appellate Division, finding no proof that there was any relationship between the duties performed in the operation of the inn and the fact that the parties lived together, reversed and awarded claimant $9,000. We reversed, because the evidence was not of the clear and convincing character required to establish a claim against a decedent’s estate, but expressly adopted the rationale of Rhodes v Stone that the unmarried state of the couple did not bar an express contract between them. Ironically, part of the basis /or holding the evidence less than clear and convincing was that "If she had been working as an employee instead of a de facto wife, she would not have labored from 8 o’clock in the morning until after midnight without demanding pay or without being paid” (8 NY2d, at p 75).

While accepting Gorden’s concept that an unmarried couple living together are free to contract with each other in relation to personal services, including domestic or "housewifely” services, we reject the suggestion, implicit in the sentence quoted above, that there is any presumption that services of any type are more likely the result of a personal, rather than a contractual, bond, or that it is reasonable to infer simply because the compensation contracted for may not be payable in periodic installments that there was no such contract.

Changing social custom has increased greatly the number of persons living together without solemnized ceremony and consequently without benefit of the rules of law that govern property and financial matters between married couples. The difficulties attendant upon establishing property and financial rights between unmarried couples under available theories of law other than contract (see Douthwaite, loc. cit.) warrant application of Gorden’s recognition of express contract even though the services rendered be limited to those generally characterized as "housewifely” (Matter of Adams, 1 AD2d 259, affd 2 NY2d 796; cf. Dombrowski v Somers, 41 NY2d 858). There is, moreover, no statutory requirement that such a contract as plaintiff here alleges be in writing (cf. General Obligations Law, § 5-701, subd a, pars 1, 3). The second cause of action is, therefore, sustained.

The first cause of action was, however, properly dismissed. Historically, we have required the explicit and structured understanding of an express contract and have declined to recognize a contract which is implied from the rendition and acceptance of services (Rhodes v Stone, supra; Vincent v Moriarty, 31 App Div 484, supra; see, also, Matter of Adams, supra). The major difficulty with implying a contract from the rendition of services for one another by persons living together is that it is not reasonable to infer an agreement to pay for the services rendered when the relationship of the parties makes it natural that the services were rendered gratuitously (Matter of Adams, supra, at p 262; Robinson v Munn, 238 NY 40, 43). As a matter of human experience personal services will frequently be rendered by two people living together because they value each other’s company or because they find it a convenient or rewarding thing to do (see Marvin v Marvin, 18 Cal 3d, 660, 675-676, n 11, supra). For courts to attempt through hindsight to sort out the intentions of the parties and affix jural significance to conduct carried out within an essentially private and generally noncontractual relationship runs too great a risk of error. Absent an express agreement, there is no frame of reference against which to compare the testimony presented and the character of the evidence that can be presented becomes more evanescent. There is, therefore, substantially greater risk of emotion-laden afterthought, not to mention fraud, in attempting to ascertain by implication what services, if any, were rendered gratuitously and what compensation, if any, the parties intended to be paid.

Similar considerations were involved in the Legislature’s abolition by chapter 606 of the Laws of 1933 of common-law marriages in our State. Writing in support of that bill, Surrogate Foley informed Governor Lehman that it was the unanimous opinion of the members of the Commission to Investigate Defects in the Law of Estates that the concept of common-law marriage should be abolished because attempts to collect funds from decedents’ estates were a fruitful source of litigation. Senate Minority Leader Fearon, who had introduced the bill, also informed the Governor that its purpose was to prevent fraudulent claims against estates and recommended its approval. The consensus was that while the doctrine of common-law marriage could work substantial justice in certain cases, there was no built-in method for distinguishing between valid and specious claims and, thus, that the doctrine served the State poorly.

The notion of an implied contract between an unmarried couple living together is, thus, contrary to both New York decisional law and the implication arising from our Legislature’s abolition of common-law marriage. The same conclusion has been reached by a significant number of States other than our own which have refused to allow recovery in implied contract (see Ann., 94 ALR3d 552, 559). Until the Legislature determines otherwise, therefore, we decline to recognize an action based upon an implied contract for personal services between unmarried persons living together.

For the foregoing reasons, the order of the Appellate Division should be modified in accordance with this opinion and, as so modified, should be affirmed, with costs to plaintiff.

Jones, J.

(dissenting). I am in agreement with the majority that the first cause of action, seeking recovery of money damages predicated on an implied agreement between cohabiting persons not married to each other, fails to state a ground for relief under the law of this jurisdiction and that dismissal is appropriate. I would go further, however, and make similar disposition of the second cause of action, on the ground that the express agreement alleged is too vague and indefinite to be enforced.

The terms of the contract in the second cause of action are set forth in paragraph 15 of the complaint where it is alleged that "it was orally agreed and understood by and between the parties hereto that plaintiff would perform the work, services and labor of a domestic nature on her part as requested by the defendant, and that the defendant would support, maintain and provide for plaintiff in accordance with his earning capacity and. that defendant further agreed on his part to take care of the plaintiff and do right by her”. Thus, defendant’s obligation is alleged first as one to support, maintain and provide for plaintiff in accordance with his earning capacity and, additionally, to take care of and do right by plaintiff. The latter segment of the purported undertaking is on its face patently indefinite and unenforceable; as we recently held in Dombrowski v Somers (41 NY2d 858, 859) the words "to take care of’ are "too vague to spell out a meaningful promise”— nothing of substance is added by the words "to do right by plaintiff’. The former segment — imposing an apparent obligation to support, maintain and provide for in accordance with (defendant’s) earning capacity — is similarly nebulous and indeterminate. A reference of more substance is required than simply one to the provider’s earning capacity to describe what it is to which the parties are agreeing. What is notably lacking is any statement of the standard of support and maintenance to be provided or of what relationship is to furnish the measure of the allegedly agreed-on life-style. Assuming a provider whose earning capacity places ample funds at his disposal, the level of support and maintenance he will provide for his wife and children will of course vary substantially from the level he will provide for a household retainer living within his residence. Is it the former style of maintenance or the latter — or some other, such as might be extended to a favorite, impoverished aunt living outside the family establishment — to which the defendant binds himself by the alleged agreement? By its terms the promise is indefinite and uncertain and it runs afoul of the basic premise of contract law — viz., "It is a necessary requirement in the nature of things that an agreement in order to be binding must be sufficiently definite to enable a court to give it an exact meaning” (1 Williston, Contracts [3d ed], § 37).

The majority dismisses the problem of vagueness by reliance on the allegation included in the second pleaded cause of action that "the net profits from the agreement and partnership of the plaintiff and defendant were to be used for and applied to the equal benefit of plaintiff and defendant”, apparently accepting this as a sufficiently definite statement of the obligation now sought to be enforced. But, rather than clarifying the ambiguity, this allegation only confounds the confusion. What are "net profits from the agreement and partnership” is wholly unelucidated and, when the agreement as described in paragraph 15 of the complaint is examined, the term seems strange indeed, for the compact is only that plaintiff will perform domestic services and defendant will support her to the undefined extent previously discussed. Although there is an allegation in paragraph 16 that defendant "was to have full charge of the business”, no reference to any business appears elsewhere in the pleading and nowhere is it alleged that defendant bound himself to operate or carry on any profit-making activity. Surely it cannot be said that the domestic work for which plaintiff engaged would produce profits. How the "profits” — not to mention the "net profits”— from such an agreement are to be determined is a conundrum; as a consequence any provision for their application to the equal benefit of the parties is fatally vague and indefinite. Plaintiff invites our attention to no case in which courts have undertaken to enforce an agreement approaching the indefiniteness of that allegedly made by the parties to this litigation.

Because the second cause of action seeks recovery on the basis of an agreement the terms of which are too uncertain to admit of its enforcement, this action, like the first cause of action, should be dismissed.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur with Judge Meyer; Judge Jones dissents in part and votes to affirm in a separate opinion in which Judge Jasen concurs.

Order modified, etc.

      . Paragraph 9, one of the realleged allegations, avers that "plaintiff performed work, labor and services for the defendant in the nature of domestic duties and business services at the request of the defendant” (emphasis supplied).

      . Much of the case law speaks of such a relationship as "meretricious”. Defined as "Of or pertaining to a prostitute; having a harlot’s traits” (Webster’s Third New International Dictionary Unabridged, p 1413), that word’s pejorative sense makes it no longer, if it ever was, descriptive of the relationship under consideration, and we, therefore, decline to use it.

      . We have not overlooked the holding of Dombrowski v Somers (41 NY2d 858, 859) that the words "take care of’ are too vague to spell out a meaningful promise. In the instant complaint we regard those words as surplusage in light of the further allegation that the profits of the partnership were to be used and applied for the equal benefit of both plaintiff and defendant. Nor can we accept the dissent’s concept that there need necessarily be "profits” from the domestic services. Plaintiff alleges an express agreement of partnership under which she was to contribute services in return for which she was to share in the profits from the business conducted by defendant; more is not required to make defendant accountable for profits of the partnership.

       If the agreement alleged were to be interpreted as committing defendant to support plaintiff, within his earning capacity, in the style of a wife, and were to be so enforced, the result would be largely to vitiate the statutory ban on common-law marriages at least with respect to the parties to the arrangement themselves (L 1933, ch 606, amdg Domestic Relations Law, § 11). Nevertheless, the infirmity of the alleged agreement lies not in its potential for impairment of the statute but in its inherent vagueness. Respect for the legislative determination manifested in the statute, however, precludes resort to marital standards of support to supply the definiteness which the agreement of the parties otherwise lacks.