author: Gabrielli, J. Meyer, J.

text:
    Diane M. D’Ambrosio, an Infant, by Her Mother and Natural Guardian, Rose D’Ambrosio, Appellant, et al., Plaintiff, v City of New York, Defendant and Third-Party Plaintiff-Respondent. Harriet S. Hopp, Third-Party Defendant-Appellant.
    Argued February 9, 1982;
    decided April 6, 1982

      POINTS OF COUNSEL

      Brian J. Shoot for appellant.
    I. In the aftermath of Dole v Dow Chem. Co. and absent any contractual right to receive indemnification, an adjudicated concurrent tort-feasor should not be granted full indemnification, as a matter of law, for those damages arising from its own negligence on the theory that its neglgence was merely “passive” while that of its fellow tort-feasor was “active”. (Riviello v Waldron, 47 NY2d 297; Logan v Easterly, 34 NY2d 648; Hertz Corp. v Dahill Moving & Stor. Co., 79 AD2d 589; Mazelis v Wallerstein, 51 AD2d 579; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Rogers v Dorchester Assoc., 32 NY2d 553; Margolin v New York Life Ins. Co., 32 NY2d 149.) II. Absent any contractual right to receive indemnification, a tort-feasor should not be granted full indemnification, as a matter of law, from a tort-feasor less culpable than it. (Dole v Dow Chem. Co., 30 NY2d 143.) III. The court below erred in holding, as a matter of law, that the City was entitled to full indemnity under pre-Dole law. (Jackson v Associated Dry Goods Corp., 13 NY2d 112; Bush Term. Bldgs. Co. v Luckenbach S. S. Co., 9 NY2d 426; McKee v Alboro Crane Rental Corp., 18 AD2d 679; Kahn v City of New York, 37 AD2d 520, 30 NY2d 690; McFall v Compagnie Maritime Belge [Lloyd Royal] S.A., 304 NY 314; Rogers v Dorchester Assoc., 32 NY2d 553; Weber v City of New York, 18 Misc 2d 590, 13 AD2d 823; Lombardozi v City of New York, 71 Misc 2d 271; Baruch v City of New York, 15 NY2d 782; Lobello v City of New York, 268 App Div 880, 294 NY 816.) IV. The courts below erred in ruling, as a matter of law, that the City could completely divest itself of responsibility for the surrounding sidewalk condition. (Taylor v New York City Tr. Auth., 48 NY2d 903; McCutcheon v National City Bank of N. Y., 291 NY 509; Santorelli v City of New York, 77 AD2d 825; Derdiarian v Felix Contr. Corp., 51 NY2d 308.)

      Anthony J. McNulty, Joseph Messina and William F. McNulty for third-party defendant-appellant.
    I. The City, as a concurrent tort-feasor, charged by the jury with 65% of the fault for the accident herein under Dole-Dow, clearly is not entitled to recover full common-law indemnification from third-party defendant, Hopp. (Logan v Esterly, 34 NY2d 648; Rogers v Dorchester Assoc., 32 NY2d 553; McDermott v City of New York, 50 NY2d 211, 1059.) II. The Appellate Term and the Appellate Division erred in effect holding, as a matter of law, that the City could completely divest itself of liability for the accident resulting in the injuries sustained by plaintiff, Diane Marie D’Ambrosio, under the so-called “special use” doctrine. (Schrold v City of New York, 213 App Div 872, 298 NY 738; Ohrt v City of Buffalo, 281 App Div 344; McCutcheon v National City Bank of N. Y., 265 App Div 878, 291 NY 509; O’Neill v City of Port Jervis, 253 NY 423.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Ronald E. Sternberg and Leonard Koerner of counsel), for respondent.
    The court below properly concluded that the City is entitled to full indemnification from third-party defendant, whose use of the sidewalk for the special benefit of her property was the cause of plaintiff’s injuries. (Nickelsburg v City of New York, 263 App Div 625; Trustees of Vil. of Canandaigua v Foster, 156 NY 354; Olivia v Gouze, 285 App Div 762, 1 NY2d 811; Hughes v City of New York, 25 AD2d 617, 18 NY2d 577; Santorelli v City of New York, 77 AD2d 825; Lombardozzi v City of New York, 71 Misc 2d 271; Ohrt v City of Buffalo, 281 App Div 344; Schrold v City of New York, 273 App Div 872, 295 NY 738; Mazelis v Wallerstein, 51 AD2d 579; Smith v City of Corning, 14 AD2d 27; Smith v Barbaro, 63 AD2d 804.)
   OPINION OF THE COURT

Gabrielli, J.

The issue on this appeal is the effect of our decision in Dole v Dow Chem. Co. (30 NY2d 143) on the so-called “special benefit” rule. This rule allows a municipality, charged with the duty of maintaining its sidewalks in a reasonably safe condition, to shift liability to the abutting landowner, where the cause of plaintiff’s injuries is the failure of the landowner to reasonably maintain a sidewalk installation constructed for the special use and benefit of his property. We hold today that the “special benefit” rule is no longer available to shift entirely such liability to the landowner; rather, the liability is to be apportioned between the municipality and the landowner, based upon their respective degrees of fault.

Plaintiff sustained injuries when she was caused to trip on a metal disk embedded in the sidewalk. The disk, raised about one inch above the sidewalk, covered the housing for a shut-off valve in the service pipe which brought water to the abutting premises from the water main running under the street. The curb valve was installed by a former owner of the abutting premises, presumably for the benefit of his property.

Plaintiff brought suit against the City of New York (City), alleging that it had breached its duty to maintain the public sidewalk on which she fell in a reasonably safe condition, by suffering a dangerous and defective condition to exist, of which it had knowledge and notice. Prior to trial, plaintiff entered into a settlement agreement with the abutting landowner, by which plaintiff settled all “past, present and future claims” against the landowner in return for the sum of $22,500.

Following service of the complaint against the City, the City served a third-party summons and complaint upon the landowner, Harriet S. Hopp. This complaint sought recovery over against Hopp for any amount that might be recovered by the plaintiff against the City, on the ground that it was Hopp’s negligent maintenance of the water box, installed for the special use and benefit of Hopp’s premises, that caused plaintiff’s injuries.

The testimony at trial indicated that plaintiff tripped over the raised water disk, which she could not see, as she was attempting to avoid cracks in the sidewalk a short distance ahead. The sidewalk immediately surrounding the condition was described as cracked and sloping downward toward the disk. Expert testimony was adduced to the effect that the one-inch elevation of the metal disk was improper, and that curb valves should be maintained flush with the surrounding sidewalk. Plaintiff testified that, about one year before her accident, she had seen a woman fall in the same area, and that a policeman and ambulance arrived at the scene to assist the injured woman, who stated that she had tripped over the water cap.

The case was submitted to the jury in two stages. With respect to the liability determination, the jury found that both the City and Hopp were negligent in allowing the sidewalk condition to go unrepaired, resulting in plaintiff’s injuries. The issues of the amount of plaintiff’s damages and of the relative fault of the City were then submitted to the jury. Plaintiff was awarded $100,000 in damages; the City was found 65% responsible. The City’s motion for judgment over against Hopp was denied without comment by the court. Judgment was entered for plaintiff against the City in the amount of $65,000 (reduced by the proportionate amount of Hopp’s fault, by reason of plaintiff’s having settled her claim against Hopp [see General Obligations Law, § 15-108]).

The City appealed to Appellate Term, which modified the judgment by awarding the City full indemnification on its third-party complaint against Hopp, based on the so-called “special benefit” rule. Under this rule, the municipality that has been cast in damages for its failure to maintain the sidewalk in a reasonable condition may, notwithstanding its own negligence, obtain judgment over against the property owner for whose benefit a sidewalk appurtenance was installed, where it is the defective condition of the appurtenance that caused the injury.

An appeal by Hopp resulted in an affirmance by the Appellate Division, on the reasoning of Appellate Term. The Appellate Division granted plaintiff and Hopp leave to appeal to this court. We now reverse.

A threshold issue concerns whether an appeal properly lies from the order of the Appellate Division by the plaintiff. The Appellate Division order, affirming the order of Appellate Term, resolves issues of liability only as between the municipality and the abutting landowner. It has no,direct effect on the right of plaintiff to recover full judgment. Plaintiff is not an “aggrieved party” within the meaning of CPLR 5511 by reason of the resolution of the respective liability of the third-party plaintiff and defendant. Rather, plaintiff’s rights are affected solely by virtue of a settlement agreement between her and the third-party defendant, the validity and interpretation of which have not been determined in this litigation. The appeal of the plaintiff, therefore, should be dismissed.

Turning to the merits of the appeal, we are asked to determine the effect of the rule announced in Dole v Dow Chem. Co. (30 NY2d 143, supra), allowing joint, actively negligent tort-feasors to seek contribution among themselves in proportion to their respective degrees of fault, upon the “special benefit” rule, which allows a municipality to shift liability for damages to one harmed by a defective condition in the sidewalk to the owner of the abutting premises, under some circumstances.

It was once the rule in this State that contribution among joint tort-feasors could not be had. The reason for this common-law, rule barring apportionment was the belief that the courts should not participate in adjusting the relative rights of wrongdoers (Dole v Dow Chem. Co., 30 NY2d 143, 147, supra). This rule was abrogated partially in 1928, with the addition of section 211-a to the Civil Practice Act. Under that statute, if judgment were recovered by a plaintiff against more than one joint tort-feasor, one tort-feasor who had been required to pay more than his pro rata share to the plaintiff could recover the excess from the other adjudicated tort-feasors. The paying tort-feasor was expressly given the right to proceed against the others in a separate action. The statute left the decision of which defendants could be adjudicated joint tort-feasors- entirely in the hands of the plaintiff, however, and a named defendant could not bring others into the suit on the basis of his belief that they should contribute to any judgment awarded to plaintiff (Fox v Western N. Y. Motor Lines, 257 NY 305).

Notwithstanding the rigid rules regarding contribution rights among joint tort-feasors, a common-law right of indemnification existed, allowing one who was compelled to pay for the wrong of another to recover from the wrongdoer the damages paid to the injured party (Westchester Light. Co. v Westchester County Small Estates Corp., 278 NY 175; Oceanic Steam Nav. Co. v Compania Transatlantica Espanola, 134 NY 461). Thus, for example, where the master had been held liable for the tort of his servant, on a theory of respondeat superior, but the master was himself free from wrong, the master was entitled to indemnification from his servant (Opper v Tripp Lake Estates, 274 App Div 422, affd 300 NY 572). In the classic indemnification case, the one entitled to indemnity from another had committed no wrong, but by virtue of some relationship with the tort-feasor or obligation imposed by law, was nevertheless held liable to the injured party.

Over the years, the doctrine of “implied indemnification” was extended in response to the potentially harsh results of the inflexible rules barring contribution among joint tortfeasors. Thus, one who was cast in damages for negligence could, if his negligence were merely “passive”, nevertheless shift his liability to the tort-feasor whose negligence was considered “active”. The “actively negligent tort-feasor is considered the primary or principal wrongdoer and is held responsible for his negligent act not only to the person directly injured thereby, but also to any other person indirectly harmed by being cast in damages by operation of law for the wrongful act” (McFall v Compagnie Maritime Belge [Lloyd Royal] S.A., 304 NY 314, 328; see, also, Tipaldi v Riverside Mem. Chapel, 298 NY 686, affg 273 App Div 414). One who was himself actively negligent could not, of course, receive the benefit of this doctrine; it was available only to shift full liability from the secondary to the primary wrongdoer, and its availability depended upon the level of culpability of the one seeking indemnity (Bush Term. Bldgs. v Luckenbach S. S. Co., 9 NY2d 426; Jackson v Associated Dry Goods Corp., 13 NY2d 112). The inquiry became primarily a question of the degree of fault, or the “factual disparity between the delinquency” of the several tort-feasors (McFall v Compagnie Maritime Belge [Lloyd Royal] S.A., 304 NY 314, 330, supra). Such efforts to ameliorate the effects of the bar to contribution were far from complete, however, since the “active-passive” terminology was not easily applied. Moreover, the result of its application was complete, not ratable, recovery by the less negligent tort-feasor against the one guilty of “active” negligence.

Against this background, Dole v Dow Chem. Co. (supra), was decided, drastically changing the law of this State regarding the apportionment rights of joint tort-feasors. Dole rejected the unpredictable result of attempting to shift entire liability based upon the theory of whose negligence was the greater, and adopted the more realistic approach of holding joint tort-feasors liable according to their respective degrees of fault. To this end, the named defendant could either bring in another tort-feasor by impleading him into the plaintiff’s main action, or seek contribution by way of a separate action against one believed to also be at fault.

In later cases, we clarified the scope of our holding in Dole. In Rogers v Dorchester Assoc. (32 NY2d 553), we explained that the rule of apportionment enunciated in Dole did not abrogate basic principles of “common-law indemnification between vicariously liable tort-feasors and tort-feasors guilty of the acts or omissions causing the harm. In short, the apportionment rule applies to those who in fact share responsibility for causing the accident or harm, and does not extend further to those who are only vicariously liable, as the employer of a negligent employee, the owner of a motor vehicle operated by a negligent driver, or * * * the owner of a building who contracts with an independent contractor exclusively responsible for maintenance of the building or parts of it” (id., at pp 565-566). Thus, where one is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent (see, also, Logan v Esterly, 34 NY2d 648).

The issue in the present case is the effect oí Dole and subsequent developments on the “special benefit” rule. The . municipality owes a duty to keep the public sidewalks in a reasonably safe condition. A failure to repair a defective condition, of which it has notice, either actual or constructive, will cast the municipality in liability for damages to a person injured thereby. Where the cause of the injury is the defective condition of a sidewalk appurtenance installed for the special use or benefit of the owner of the abutting premises, however, the rule has developed that the municipality may receive indemnity from the landowner (Trustees of Vil. of Canandaigua v Foster, 156 NY 354; Schrold v City of New York, 273 App Div 872, affd 298 NY 738; Ohrt v City of Buffalo, 281 App Div 344). The precise question posed, then, is whether this “special benefit” rule was a recognition of a common-law right to indemnification, in that the municipality is entitled to recovery because it has been cast in liability solely for the landowner’s negligence, or whether the rule is but one application of the doctrine permitting the secondary wrongdoer, notwithstanding his own negligence, to shift his liability to a wrongdoer guilty of a greater degree of negligence. An examination of the approach taken in cases involving the special benefit rule persuades us that the nature of this claim falls within the latter category (see, e.g., Lobello v City of New York, 268 App Div 880, affd 294 NY 816; Olivia v Gouze, 285 App Div 762, affd 1 NY2d 811; Kaplan v City of New York, 269 App Div 856; Johnsen v Gallagher, 28 AD2d 560, affd 21 NY2d 981).

When a sidewalk appurtenance negligently falls into disrepair, both the municipality and the landowner have breached their respective duties to members of the public, and both may be made to respond in damages to those injured by the defective condition. If the municipality pays the damages, it is not being compelled to pay for the wrong of another; it is simply being held liable for its own failure to exercise reasonable care. The landowner’s obligation to maintain the sidewalk appurtenance runs, not to the municipality, but to the pedestrians who might be harmed by his negligence. The landowner has not undertaken any obligation to repair for . the benefit of the municipality (cf. Rogers v Dorchester Assoc., 32 NY2d 553, supra). Thus, we conclude that the shifting of the municipality’s liability to the landowner was not the classic form of indemnity; rather, it was a recognition that the municipality’s culpability was only secondary where the precise instrumentality causing the injury was installed for the landowner’s special benefit.

Since Dole has eliminated the necessity for continuing-such distinctions, we conclude that the special benefit rule is not applicable to impose an obligation of indemnification on the landowner; liability is to be apportioned on the basis of the respective violations of duty owed by the alleged joint tort-feasors to the plaintiff. The primary inquiry in any such case should be the extent to which each of the negligent parties has contributed to the defective condition. In a particular case, of course, the inquiry may result in a finding that only one of the parties was responsible for the defect; in that event, full liability should be incurred by that party alone (cf. Dole v Dow Chem. Co., 30 NY2d 143, 153, supra).

Inasmuch as the City has failed to present a basis on which the jury’s determination of its respective degree of fault should be overturned, the order of the Appellate Division should be reversed, with costs, and the judgment of Civil Court should be reinstated. As to the plaintiff, appeal should be dismissed.

Meyer, J.

(dissenting in part). I do not question the authority of the court to reach the conclusion reached by the majority, for the Legislature has spoken only to the converse of the problem we confront and has, apparently deliberately, left to us the ultimate determination of what the rules governing the separation between indemnity and contribution should be, while at the same time noting that our court “may wish to consider the suggestions offered” in section 886B of the Restatement of Torts, Second, suggestions which, if followed, would produce a result contrary to that of the majority. I do, however, seriously question the reasoning, both substantive and procedural, which underlies the majority’s conclusion that the special benefit rule does not provide a basis for the City to obtain indemnity from the specially benefited property owner. I, therefore, dissent.

The morass in decisional law into which the active-passive, actual-constructive, primary-secondary dichotomies have lead has been chronicled elsewhere and at length. The “persistent criticism” and “widespread dissatisfaction with the inequity of result” lead us, in Dole v Dow Chem. Co. (30 NY2d 143, 148, 149), to adopt a rule that “where a third party is found to have been responsible for a part, but not all, of the negligence for which a defendant is cast in damages, the responsibility for that part is recoverable by the prime defendant against the third party.” The Dole rule, characterized by us as one of “relative contribution” (Kelly v Long Is. Light. Co., 31 NY2d 25, 29), was not “intended to overturn basic and satisfactory principles of common-law indemnification between vicariously liable tort-feasors and tort-feasors guilty of the acts or omissions causing the harm” (Rogers v Dorchester Assoc., 32 NY2d 553, 565-566), and “does not mean that where a defendant is only derivatively liable * * * full responsibility for paying the judgment cannot be assessed against the actively negligent party” (Logan v Esterly, 34 NY2d 648, 651).

There are, of course, bases for indemnification other than that the one seeking indemnity was only vicariously or derivatively liable (see McDermott v City of New York, 50 NY2d 211, 218, n 4). The fallacy of the majority analysis is that, in concentrating on the use of active-passive language in some of the special benefit cases, it overlooks the case law clearly establishing, contrary to its conclusion, that the owner of property specially benefited by a sidewalk appurtenance does indeed owe a duty to the municipality in whose sidewalk the appurtenance has been put to prevent injury to third persons. Its error is in its “focus on the character of the breach, rather than on the nature of the underlying duties involved” (Davis, Indemnity Between Negligent Tortfeasors: A Proposed Rationale, 37 Iowa L Rev 517, 543).

The duty that arises from use for his own benefit of a sidewalk or highway is “in consideration of private advantage” (Heacock v Sherman, 14 Wend 58, 60). In effect, by accepting the benefit of using the street or sidewalk for his special benefit, the property owner contracts to perform as to the benefit area the municipality’s duty and is liable to the municipality for failure to do so (see City of Brooklyn v Brooklyn City R. R. Co., 47 NY 475, 485). The implied duty assumed when a special benefit appurtenance is installed covers not only proper construction in the first instance but reasonable care in its maintenance (Trustees of Vil. of Canandaigua v Foster, 156 NY 354, 360; see Babbage v Powers, 130 NY 281, 286). It is moreover an implied duty which, as we declared in Canandaigua (supra, at pp 361-362), “requires reasonable precaution on the part of the owner to protect the public as long as he remains the owner and is in possession of any part of the building on the abutting land. He cannot cast the burden of maintenance on the public any more than he could have cast upon them the burden of original construction, for the grate is wholly for the benefit of his property. Nor can he relieve himself of the duty without parting with the entire possession of the property benefited, for the safety of the public requires that the owner, as long as he is in possession of any part of the property, should be compelled to keep his structure in the sidewalk in suitable condition for use as a part of the sidewalk. As the duty is imposed by law for the public safety, its extent is measured by whatever public safety requires.” In consequence, the municipality is permitted to recover “as representatives of the general public entitled to free and safe passage over the sidewalk” {id., at p 360), the entire amount paid by it, notwithstanding that recovery against it was on the ground that the “authorities knew, or should have known” {id., at p 358) that the appurtenance was out of repair.

Ordinarily, a property owner is not responsible for the maintenance of the sidewalk or street abutting his property (Ann., 88 ALR2d 331), and is not liable either to one injured by its disrepair or to indemnify the municipality absent a statute which not only requires that he maintain the sidewalk or highway but speaks expressly to injury resulting from disrepair (compare Willis v Parker, 225 NY 159, with City of Rochester v Campbell, 123 NY 405, and Russell v Village of Canastota, 98 NY 496; and see Village of Fulton v Tucker, 3 Hun 529). But when the sidewalk includes an appurtenance for the special benefit of his property, the municipality is entitled to rely, as between the- owner and itself though not as to an injured third party, upon performance by the owner of his obligation to maintain the appurtenance in safe condition, just as much as the municipality would be entitled to rely upon, and therefore has the right to be indemnified by, one who has voluntarily assumed the duty of maintenance (Doyle v Union Ry. Co. of N. Y., 276 NY 453, 458) or has expressly contracted to do so (Rogers v Dorchester Assoc., 32 NY2d 553, 562, supra; Burke v City of New York, 2 NY2d 90, 94; Beinhocker v Barnes Dev. Corp., 296 NY 925). In this respect the special benefit indemnity rule differs from that governing the indemnity liability of a person causing injuries on a sidewalk or on a highway in which there is no special benefit appurtenance, for in the latter case the obligation to indemnify arises not from the tort-feasor’s special or particular duty to the public or from any express agreement, but from the principle that everyone is responsible for the consequences of his own negligence and must reimburse a municipality compelled to pay for an injury for which the primarily liable wrongdoer should have paid (Oceanic Steam Nav. Co. v Compania Transatlantica Espanola, 134 NY 461, 465, 467-468, 470; Phoenix Bridge Co. v Creem, 102 App Div 354, affd 185 NY 580; City of Rochester v Montgomery, 72 NY 65).

The duty implied by law from the acceptance of a special benefit use has been the foundation for indemnity recovery by the municipality in a large number of cases, some referring to the primary duty of the owner or the special benefit he received, others speaking the active-passive language which so long confused this field of law (Schrold v City of New York, 273 App Div 872, affd 298 NY 738 [special benefit]; Mazelis v Wallerstein, 51 AD2d 579 [primarily liable; Dole worked no change in rule]; Wylie v City of New York, 286 App Div 720 [special benefit duty]; Runkel v Homelsky, 286 App Div 1101 [primarily liable]; Ohrt v City of Buffalo, 281 App Div 344, 345 [special benefit, unless city “guilty of active negligence which caused the water meter box cover to become loose”]; Nickelsburg v City of New York, 263 App Div 625 [special benefit]; and see Satta v City of New York, 272 App Div 782 [indemnity allowed with respect to shut-off valve installed by owner without statement of basis for doing so]; Gordon v City of Albany, 278 App Div 233, mot for lv to app den 302 NY 949 [special benefit rule does not protect city against liability to injured person though it permits recovery over by city against owner]; and the 1952 Report of NY Law Rev Comm [NY Legis Doc No. 65], at pp 41, 317).

The majority, nevertheless, ignoring the implied duty cases above set forth and relying upon active-passive language in four decisions (one of which, Lobello v City of New York, 268 App Div 880, affd 294 NY 816, did not involve a special benefit appurtenance and another of which, Johnsen v Gallagher, 28 AD2d 560, affd 21 NY2d 981, does not state whether the “condition of the sidewalk” to which it refers involved a special benefit), abolishes the special benefit-indemnity rule. To do so on the conception that Dole's abolition of active-passive reasoning justifies doing so and thus to shift to the municipality such share of the responsibility for damages as a jury sees fit to impose notwithstanding the property owner’s duty, implied from acceptance of the special benefit, to maintain the appurtenance, to pay all damages resulting from his failure to do so, is truly to throw out the baby with the bath water. It is to do so, moreover, without discussion of the contrary position espoused in section 886B (subd [2], par [f]) of the Restatement of Torts, Second. Subdivision (2), which Comment d tells us lists instances in which “there is general recognition that indemnity should be granted,” includes in paragraph (f) the situation in which “[t]he indemnitor was under a duty to the indemnitee to protect him against the liability to the third person.” Comment j to the section explains that “The duty to protect the indemnitee from liability may arise under a contract or be imposed by statute or the common law. A typical example arises when a landowner allows a sidewalk to fall into disrepair and is required to indemnify the city when it becomes liable for injury to a pedestrian.” The basis of the special benefit-indemnity obligation being the duty to protect the City against liability resulting from the appurtenance, which is spelled out by Trustees of Vil. of Canandaigua and the other cases cited above, the City is entitled to indemnity in this case. Nor can the majority find support for its position in the fact, referred to on page 458 of the opinion, that plaintiff tripped over the water shut-off cover “as she was attempting to avoid cracks in the sidewalk a short distance ahead.” Though the City would be responsible for repair of such cracks, the sole question submitted to the jury was whether the fact that the water main cover was raised above the sidewalk created a dangerous condition (compare Washington Gas Co. v District of Columbia, 161 US 316, 321-322), to which plaintiff’s attorney took no exception. The contrary arguments in the majority’s footnote (at p 463) are both irrelevant; that evidence of cracks in the sidewalk was before the jury, because that issue was not submitted to the jury by the court; that the City may have had actual notice of the defect in the appurtenance, because Trustees of Vil. of Canandaigua v Foster (156 NY 354, 358, supra [quoted above, at p 467]) held indemnity proper nevertheless.

Finally, as concerns the substantive question, it should be noted that the policy of encouraging settlement of tort actions involving multiple defendants is not a sufficient reason for changing the special benefit-indemnity rule. The purpose behind the 1974 amendment of section 15-108 of the General Obligations Law was to provide “a means for encouraging settlements, while assuring that no wrongdoer is responsible for more than his equitable share of the damages incurred, by the injured party” (Twentieth Ann Report of NY Judicial Conference, 1975, p 225), but CPLR 1404 (subd [b]), adopted at the same time, also made clear the legislative intent not thereby to limit the rules governing indemnity (id., at p 222; see, also, Nineteenth Ann Report of NY Judicial Conference, 1974, pp 242-243). Nor is Riviello v Waldron (47 NY2d 297) authority to the contrary, for it held only that a general release reserving rights against the employee-tort-feasor did not foreclose recovery by the injured plaintiff from the vicariously liable employer, whereas in the instant case plaintiff not only settled with the special benefit property owner but agreed to hold her harmless if “the City of New York obtains any judgment against [her] or our reading of Section 15-108 of the General Obligations Law is incorrect.” Under such circumstances, there is no unfairness in holding that settlement with the owner forecloses recovery from the municipality, though as Professor David D. Siegel notes (Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3019:60, 1981-1982 Pocket Part, pp 42-43), litigation may be necessary in order to settle the factual basis for the municipality’s liability to plaintiff, which can affect its right to indemnity from the owner.

Turning now to the procedural problems with the result affirmed by the majority, I note that though plaintiff had not sued the property owner, the two of them stipulated to a settlement at the beginning of the trial. When that stipulation was put on record, the City expressly reserved all its rights against the owner should judgment be recovered by plaintiff against it. Notwithstanding that reservation, the owner’s attorney then withdrew from the trial, which proceeded with only the attorneys for plaintiff and for the City present. The Trial Judge nevertheless denied the City’s motion to dismiss the action because of the plaintiff’s release of the owner and denied three separate requests that the jury be charged that if the City were found negligent it would be entitled to full indemnity against the owner if the jury found the shut-off valve disk to have been installed for the owner’s benefit. He then compounded that error by charging that owner’s duty was simply to inform the City of the unsafe condition of the box so that it could repair the condition. Whatever the proper rule concerning indemnity in special benefit cases (as to which my views are fully stated above) and whatever the propriety of denying the City’s motion to dismiss, it was clear error so to instruct the jury and the error, which was objected to, cannot be deemed harmless since it bore upon the jury’s apportionment of 65% culpability to the City and only 35% to the owner. At the very least, therefore, there should be a reversal and a new trial.

For the foregoing reasons, my vote is to affirm the order of the Appellate Division, with costs, on the third-party defendant’s appeal.

Chief Judge Cooke and Judges Jones, Wachtler and Fuchsberg concur with Judge Gabrielli; Judge Meyer dissents in part and votes to affirm on the third-party defendant’s appeal in a separate opinion in which Judge Jasen concurs.

On plaintiff’s appeal: Appeal dismissed, without costs.

On third-party defendant’s appeal: Order reversed, with costs, and the judgment of the Civil Court of the City of New York, New York County, reinstated.

       We note that the dissent (at pp 470-471) chooses to give no effect to the evidence adduced at trial that plaintiff was attempting to avoid cracks in the sidewalk a few feet ahead of her (a condition for which the City is concededly responsible) or to evidence regarding the City’s actual notice of the defect in the sidewalk appurtenance. This evidence regarding the City’s breach of its duty of care was properly before the jury, and while it was not made the basis of a specific theory of recovery, neither was the defect in the sidewalk appurtenance made a specific theory of recovery. Rather, the jury was instructed in very general terms, that on the evidence before it, it was to determine whether the City and/or the landowner breached their respective duties of care. The court did not marshal the evidence on this issue, nor did it refer specifically to any part of it.

      . CPLR 1404 (subd [b]) provides that “Nothing contained in this article [which deals with contribution] shall impair any right of indemnity or subrogation under existing law.”

      . CPLR article 14 and section 15-108 of the General Obligations Law were proposed in the Twelfth Annual Report of the Judicial Conference to the Legislature on the Civil Practice Law and Rules. That report, which is reprinted in the Twentieth Annual Report of the Judicial Conference, stated CPLR 1404 (subd [b]) to be “[i]n keeping with the premise that Dole was intended essentially to modify the law of contribution, leaving much of the traditional common law of indemnity unchanged” (Twentieth Ann Report of NY Judicial Conference, 1975, p 222; see, also, p 216).

      . The full paragraph in which the quoted words may be found reads (Twentieth Ann Report of NY Judicial Conference, 1975, p 222): “No attempt has been made to list here those situations in which a right to indemnity, in the sense of a complete shifting of the entire financial burden from one tortfeasor to another (See McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 327-28 (1852)), exists. The Court of Appeals is in the process of formulating new guidelines (Rogers v. Dorchester Associates; Kelly v. Long Island Lighting Co.) and this development of the substantive law should be left to them. The Court may wish to consider the suggestions offered in a draft of the Restatement 0Second) of Torts which has attempted to separate contribution from indemnity as the Court of Appeals did in Rogers and as this Article does and has listed specific situations in which indemnity is available even in the absence of an express contract of indemnity. Restatement (Second) of Torts §886B (Tent. Draft No. 16, 1970).” Moreover, the report noted (id., p 212) that it was based on a study by Professor M. E. Occhialino of the Syracuse University College of Law published as part of the Nineteenth Annual Report of the Conference. The Occhialino study contained the following relevant paragraphs (Nineteenth Ann Report of NY Judicial Conference, 1974, pp 242-243):
      “So too any proposed change in New York law should reflect the fact that Dole, while working within the framework of implied indemnity, actually varied the rule of contribution. Therefore, it is entirely consistent with the reasoning of the Court of Appeals to modify the contribution statute to reflect the impact of Dole while at the same time expressly preserving inviolate'common law principles of indemnity, other than those resting solely on the discarded ‘active-passive’ test, and providing that where one doctrine is applicable, the other is not.
      “No attempt has been made here to list specifically those factual situations in which, under Rogers,, indemnity rules rather than contribution rules will be applied. That task is one for the Court itself, and any proposed statutory change should be designed to accommodate subsequent judicial decisions specifying the scope of the indemnity doctrine. A pending proposal to include in the Restatement (Second) of Torts a new section specifically identifying those situations in which indemnity and not contribution is appropriate 18 may offer some guidance to the Court of Appeals as it develops in more detail the scope of traditional indemnity principles.” (Emphasis supplied.)
      Footnote 18 reprinted in full proposed section 886B of the Restatement, the pertinent part of which appears in the text of this opinion following footnote 7.

      . (See text following n 7.)

      . (Meriam & Thornton, Indemnity Between Tort-feasors: An Evolving Doctrine In the New York Court of Appeals, 25 NYU L Rev 845, 860 [“an uncharted realm where speculation will inevitably supplant reliable interpretation”]; Davis, Indemnity Between Negligent Tortfeasors: A Proposed Rationale, 37 Iowa L Rev 517, 543 [“hopeless muddle of (New York) precedents”]; Leñar, Contribution and Indemnity Between Tortfeasors, 81 U of Pa L Rev 130, 156 [“The inadequacy of the words ‘passive’ and ‘active’ as a test of the propriety of allowing indemnity in hard cases must be apparent”].) The difficulty caused Justice Charles D. Breitel, as he then was, to note in Bush Term. Bldgs. Co. v Luckenbach S. S. Co. (11 AD2d 220, 227, revd 9 NY2d 426) that the “terminology * * * can be manipulated to produce any result,” and Justice Matthew M. Levy in Falk v Crystal Hall (200 Misc 979, 984, affd 279 App Div 1073, mot for lv to app den 280 App Div 861), to note the confusion arising from the “attempt to fit specific cases into the bare cubicles of easy nomenclature.”

      . In Schrold we affirmed over the owner’s contention that the city, having failed to notify it that the drain cover was missing, was actively negligent and the owner only passively so.

      . I have not overlooked cases such as Mahar v City of Albany (198 Misc 904, affd 278 App Div 1003, mot for lv to app den as to city 303 NY 1014; see, also, 303 NY 672) and Smith v Barbaro (63 AD2d 804), which rest upon the fact that city employees negligently performed work on the appurtenance (see, also, Phoenix Bridge Co. v Creem, 102 App Div 354, 356, affd 185 NY 580 [municipality “could only be deprived of the right of indemnity by proof that it did in fact participate in some manner in the omission beyond its mere failure to perform the duty imposed on both by the law”]). The evidence in the instant case does not even suggest such a basis for denying indemnity. Nothing in Thompson v City of New Rochelle (26 NY2d 1047, 1049) is contrary to the rule which I find governs, for there we held only that as between the property owner and the water company which installed the water shut-off box in the sidewalk the latter “had the primary duty to correct the condition which was the proximate cause of the accident.” To the contrary, that reasoning supports allowing the City indemnification here, for as between it and the property owner the latter had the primary duty to correct the offending condition.

      . City of Sacramento v Gemsch Inv. Co. (115 Cal App 3d 869) is not authority to the contrary for the court did not there consider indemnity based upon an implied-in-law special benefit duty such as is recognized by New York case law.

      . The charge was: “Now, what must be shown to show that the defendant was negligent? First of all, the plaintiff must show there was a dangerous condition; a condition as a result of which someone might be injured. The specific number of inches or less than that that the water main cover was raised from the ground is not important as such. Did it constitute a dangerous condition? If you find that it did not but hasn’t been shown, you will find for the defendant. That’s all there is to it.”

      . Though in doing so he referred to'discussion before jury selection which had been made part of the record, the printed record does not reproduce the discussion or otherwise indicate the basis for the ruling. Though a settlement by the City would not affect its right to indemnity from the owner (McDermott v City of New York, 50 NY2d 211, 220), the converse is not true in the circumstances of this case for the reasons already outlined in the text above.

      . The record does not make clear the basis on which apportionment between the City and the nonparticipating owner was submitted to the jury, but the City’s attorney repeated the exception already noted concerning the City’s rights against the owner and, after the jury apportionment verdict came in, moved for judgment over in favor of the City against the owner, so the issue was clearly preserved.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Freddie Hawkins, Also Known as Fred Hawkins, Appellant. The People of the State of New York, Respondent, v Hector Laffosse, Appellant. The People of the State of New York, Respondent, v Frederick Johnson, Appellant. The People of the State of New York, Respondent, v Ismael Diaz, Appellant.
    Argued February 10, 1982 and February 12, 1982;
    decided April 7, 1982

      POINTS OF COUNSEL

      Brent K. Olsson and William E. Hellerstein for appellant in the first above-entitled action.
    I. The complaining witness’ lineup identification of appellant violated his constitutional right to counsel because the lineup was conducted in the absence of counsel even though the police knew that appellant was then represented by counsel on an unrelated matter. (People v Blake, 35 NY2d 331; People v Rogers, 48 NY2d 167; United States v Wade, 388 US 218; People v Settles, 46 NY2d 154; People v Coleman, 43 NY2d 222; People v Hobson, 39 NY2d 479; People v Ramos, 40 NY2d 610; People v Taylor, 27 NY2d 327; People v Arthur, 22 NY2d 325; People v Donovan, 13 NY2d 148.) II. Appellant was denied his due process right to a fair trial by the prosecutor’s suggestions through the investigating officer’s testimony and his own comments thereon during voir dire, opening and summation that appellant, who had not testified, had a prior criminal record. (People v Mullin, 41 NY2d 475; People v Davis, 43 NY2d 17; People v Lindsay, 42 NY2d 9; People v Crimmins, 36 NY2d 230.)

      Robert M. Morgenthau, District Attorney {Joyce P. Adolf-sen and Robert M. Pitler of counsel), for respondent in the first above-entitled action.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. The rule requiring counsel in. a pending proceeding to be present at interrogation on new matters should not be extended to lineups. If the rule is extended, the appropriate remedy for a violation is suppression of the identification and a new trial. (People v Rogers, 48 NY2d 167; People v Bartolomeo, 53 NY2d 225; People v Hobson, 39 NY2d 479; People v Settles, 46 NY2d 154; People v Poywing, 90 Misc 2d 197; People v Blake, 35 NY2d 331; People v Havelka, 45 NY2d 636; United States v

      Wade, 388 US 218; People v Payton, 51 NY2d 169; People v Washington, 51 NY2d 214.) III. No evidence of defendant’s criminal record was presented to the jury. (People v Mullin, 41 NY2d 475; People v Robbins, 38 NY2d 913; People v Richardson, 222 NY 103.)

      Eric A. Seiff for appellant in the second above-entitled action.
    I. Once the right to counsel has been invoked it is error of constitutional magnitude to conduct a lineup without an accused first consulting with an attorney. (People v Cunningham, 49 NY2d 203; People v Skinner, 52 NY2d 24; People v Blake, 35 NY2d 331; People v Yut Wai Tom, 53 NY2d 44; People v Coleman, 43 NY2d 222; Stovall v Denno, 388 US 293; People v Kazmarick, 52 NY2d 322; People v Crimmins, 36 NY2d 230; People v Lloyd Winston G., 45 NY2d 962.) II. The failure of appellant’s counsel to provide appellant with effective representation in the court below mandates that this appeal should be remanded for a de novo review by that court. (Griffin v Illinois, 351 US 12; Douglas v California, 372 US 353; People v Borum, 8 NY2d 177; People v Emmett, 25 NY2d 354; People v Gonzalez, 47 NY2d 606; Anders v California, 386 US 738; People v Saunders, 52 AD2d 833.)

      Mario Merola, District Attorney CKevin B. Hurley and Steven R. Kartagener of counsel), for respondent in the second above-entitled action.
    I. Appellant was proven guilty beyond a reasonable doubt by overwhelming evidence. (People v Gruttola, 43 NY2d 116; People v Williams, 6 NY2d 18.) II. Admission of the prearraignment lineup identification in no way violated appellant’s right to counsel. (Kirby v Illinois, 406 US 682; People v Pickett, 52 NY2d 892; People v Blake, 35 NY2d 331; People v Settles, 46 NY2d 154; People v Coleman, 43 NY2d 222; People v Kazmarick, 52 NY2d 322; Miranda v Arizona, 384 US 436; People v Cunningham, 49 NY2d 203; United States v Ash, 413 US 300; People v Hobson, 39 NY2d 479.) III. Appellant was not deprived of the effective assistance of counsel on appeal in the Appellate Division, First Department. (Anders v California, 386 US 738; People v Saunders, 52 AD2d 833; People v Kelly, 76 AD2d 751; People v Barbosa, 74 AD2d 537; People v Bennett, 74 AD2d 511.)

      Shirley Werner and William E. Hellerstein for appellant in the third above-entitled action.
    I. Appellant’s State constitutional right to counsel was violated when he was compelled to take part in a lineup without an attorney after requesting counsel. (People v Cunningham, 49 NY2d 203; People v Blake, 35 NY2d 331; People v Settles, 46 NY2d 154; People v Burwell, 26 NY2d 331; People v Gursey, 22 NY2d 224; People v Kazmarick, 52 NY2d 322; People v Perez, 42 NY2d 971; People v Moore, 79 AD2d 619; United States v Wade, 388 US 218; People v Skinner, 52 NY2d 24.) II. Appellant’s rights to counsel, to present a defense, and to due process were violated when the court ruled that the prosecutor could demonstrate consciousness of guilt by cross-examining appellant as to his involvement in the uncharged murder of a prosecution witness, deferred the hearing as to the validity of the charge until after appellant would have testified on direct, and repeated the prosecutor’s threat to indict appellant for the purported crime only if he testified. (Matter of Oliver, 333 US 257; Chambers v Mississippi, 410 US 284; Snyder v Massachusetts, 291 US 97; People v Rakiec, 260 App Div 452, 289 NY 306; Cool v United States, 409 US 100; Washington v Texas, 388 US 14; Poe v United States, 233 F Supp 173, 352 F2d 639; United States v Morrison, 535 F2d 223; United States v Smith, 478 F2d 976.)

      Robert M. Morgenthau, District Attorney {David H. Steiner and Robert M. Pitler of counsel), for respondent in the third above-entitled action.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. Defendant’s request for counsel just as the lineup was about to be conducted did not require that the police postpone it until a lawyer could be obtained. In any event, even if the failure to comply with defendant’s request required suppression of the lineup testimony, the admission of this testimony was not prejudicial in view of the properly admitted in-court identifications. (People v Blake, 35 NY2d 331; Kirby v Illinois, 406 US 682; People v Perez, 42 NY2d 971; People v Cunningham, 49 NY2d 203; People v Moore, 79 AD2d 619; People v Burwell, 26 NY2d 331; People v Gursey, 22 NY2d 224; People v Craft, 28 NY2d 274; People v Donovan, 13 NY2d 148; People v Hobson, 39 NY2d 479.) III. Defendant has failed to preserve his claim that the prosecutor’s notice of intention to use evidence of his involvement in the murder of an eyewitness only if he testified effectively barred him from the stand. Defendant has also failed to preserve his contention that the prosecutor threatened him with indictment for this murder if he testified. In any event, the record fails to support either of these claims. (People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; People v Place, 157 NY 584; People v Leyra, 1 NY2d 199; People v Santarelli, 49 NY2d 241; People v Sandoval, 34 NY2d 371; Harris v New York, 401 US 222; McGautha v California, 402 US 183; People v Shapiro, 50 NY2d 747; Webb v Texas, 409 US 95; United States v Morrison, 535 F2d 223; United States v Smith, 478 F2d 976.)

      G. Clark Cummings for appellant in the fourth above-entitled action.
    Complainants’ testimony as to lineup identification was inadmissible because defendant was not represented by his attorney at the lineup. (People v Blake, 35 NY2d 331; People v Rogers, 48 NY2d 167; People v Bartolomeo, 53 NY2d 225; People v Settles, 46 NY2d 154; People v Yut Wai Tom, 53 NY2d 44; People v Kazmarick, 52 NY2d 323; United States v Wade, 388 US 218.)

      Mario Merola, District Attorney (Robin Dolsky and David H. Fromm of counsel), for respondent in the fourth above-entitled action.
    I. Appellant’s guilt was proved beyond a reasonable doubt by overwhelming evidence. II. Appellant’s right to counsel did not automatically attach at the prearraignment, preindictment lineup merely because a bail bond receipt bearing his name was found by the police earlier that day at the scene of one of appellant’s crimes. In any event, any error with respect to the admissibility of the lineup was harmless in light of the overwhelming proof of guilt. (People v Rogers, 48 NY2d 167; People v Bartolomeo, 53 NY2d 225; People v Blake, 35 NY2d 331; People v Sugden, 35 NY2d 453; People v Coleman, 43 NY2d 222; People v Settles, 46 NY2d 154; Kirby v Illinois, 406 US 682; People v Burwell, 26 NY2d 331; People v Adams, 53 NY2d 241; Manson v Brathwaite, 432 US 98.)
   OPINION OF THE COURT

Gabrielli, J.

These four appeals present the common question whether a suspect has a right to counsel at an investigatory lineup. In each case, we are urged by the defendant to interpret our State Constitution as providing this right at lineups conducted before the commencement of formal adversarial proceedings against a defendant.

I

In People v Laffosse, the defendant was convicted of robbery in the second degree for his part in the robbery of an off-duty police officer by three males. Laffosse was apprehended after the officer had selected his picture from a photo array. Once at the station house, the defendant was advised of his Miranda rights and he then agreed to talk to a detective. During the questioning he requested an attorney, but he and the police were unsuccessful in locating the particular attorney he desired; Laffosse then refused the offer of the police to procure a Legal Aid attorney to represent him. Shortly thereafter, he was informed that he was to be placed in a lineup and, once again, Laffosse refused an offer by the police to obtain the services of a Legal Aid attorney, this time stating that he would not need a lawyer until he went to court. Laffosse subsequently was identified at the lineup by his victim.

In People v Johnson, the defendant was convicted of two counts of murder in the second degree arising from a shooting which occurred during an aborted robbery attempt. Johnson was arrested on the day following the incident, and once at the station house he received preinterrogation warnings, but made no request for counsel. Several hours passed before the police were able to secure the presence of the eyewitnesses to the shooting for the purpose of conducting a lineup. Just before the lineup was about to be held, defendant refused to stand in the lineup and, for the first time, requested the presence of an attorney. Johnson was informed that he had no choice, and the lineup at which he was identified proceeded without counsel.

In People v Hawkins, the defendant was convicted of rape in the first degree, sodomy in the first degree, robbery in the first degree and burglary in the third degree. Hawkins, a stranger to his victim, gained entrance to her apartment by requesting the use of a pen and paper in order to write a message to another tenant in the building. Once inside the apartment, Hawkins committed the several crimes for which he now stands convicted. Immediately after Hawkins left, his victim went to the police and was able to select defendant’s picture from a photo array. Several months later Hawkins was arrested by an officer who had arrested him on a prior occasion for an unrelated drug offense. The arresting officer was aware that the drug charge was still pending against the defendant at the time of his arrest on the rape, sodomy, robbery and burglary charges. Once at the station house he consented to appear in a lineup, without asking for the assistance of counsel. As in the other cases, defendant was then identified by the victim.

In the final case, People v Diaz, the defendant was convicted of sodomy in the first degree, assault in the second degree and attempted sexual abuse in the first degree emanating from his separate attacks on two young boys. The defendant’s identity was discovered when, following the second episode, the police discovered at the scene of the crime a bail bond receipt issued to Diaz following his arraignment on the previous day on charges unrelated to the attacks on the two boys. After the second boy selected his picture in a photo array, Diaz was arrested and placed in a lineup at the station house. Diaz was not represented by counsel at the lineup, and the police did not contact the Legal Aid attorney who represented him at the arraignment on the prior unrelated charges. Both complainants identified Diaz in the lineup as the man who had attacked them.

In each of these four cases the defendant moved to suppress the corporeal identification on the ground that he had been deprived of his right to the assistance of counsel at his lineup. Each lineup in these four cases was conducted before an accusatory instrument had been filed and before an adversary criminal proceeding had commenced. Suppression was denied in each case, and the subsequent convictions were later affirmed at the Appellate Division. We also affirm.

II

Initially, we observe that defendants present no cognizable claim under the United States Constitution to a right to counsel at their lineups, since these lineups occurred prior to the initiation of formal prosecutorial proceedings (see Kirby v Illinois, 406 US 682). The Supreme Court in United States v Wade (388 US 218) held that a person accused of a crime by Federal or State officials is entitled under the Sixth and Fourteenth Amendments to have his attorney present at pretrial lineups. In Kirby v Illinois (supra), however, the court limited that holding and refused to extend this principle to provide a right to counsel at lineups held prior to the initiation of formal prosecutorial proceedings. In reaching this conclusion, the court observed that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him (Kirby v Illinois, supra, at p 688). The court went on to indicate that a formal charge, preliminary hearing, indictment, information or arraignment may mark the initiation of such adversary judicial proceedings (supra, at p 689; Brewer v Williams, 430 US 387).

In addition, the plurality opinion in Kirby also noted that the Fifth Amendment protection against self incrimination is not implicated at a preindictment lineup, nor does the Fifth Amendment provide the protection of counsel at this stage. The privilege “ ‘ “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature” ’ ” (Kirby v Illinois, supra, at p 687, citing United States v Wade, 388 US 218, 221, supra). The court explained its conclusion that the Fifth Amendment provides no right to counsel at this stage by noting that the doctrine of Miranda v Arizona (384 US 436) is inapplicable in the realm of corporeal identifications. The court stated that “the Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self incrimination, upon the theory that custodial interrogation is inherently coercive” (Kirby v Illinois, supra, at p 688). It is now firmly established that the Miranda rule evolved solely as a procedural safeguard to protect the accused’s privilege against compulsory self incrimination (Michigan v Tucker, 417 US 433, 438-439). Accordingly, although Miranda extended the protections of counsel to. an event occurring before the attachment of the Sixth Amendment right to counsel, it did so only in the limited area of custodial interrogations and has no applicability to lineups.

It follows, therefore, that the defendants in the four cases here presented to us had no right to counsel at their lineups by virtue of the United States Constitution. Each lineup occurred before the initiation of formal judicial proceedings and, accordingly, defendants’ Sixth and Fourteenth Amendment right to counsel had not yet attached. Nor did defendants have any right to counsel under the Fifth and Fourteenth Amendments, since the Miranda warnings and protections apply only to custodial interrogations.

Nevertheless, defendants press their contention that the lineup identifications must be suppressed, arguing that our State Constitution should be so interpreted as providing a right to counsel at investigatory lineups.

Ill

On several occasions in the custodial interrogation context this court has extended the protections of counsel afforded to a defendant under our State Constitution beyond those afforded by the United States Constitution. The lifeblood of the New York rule is that once the right to counsel has indelibly attached, the defendant can effectively waive the protections of counsel only if counsel is present.

Recently, this court has had two opportunities to trace the development of the independent New York rule; once in People v Skinner (52 NY2d 24, 28-30) and again in People v Kazmarick (52 NY2d 322, 326-327). As we have noted, the New York rule has developed along two lines. In the first line, it has been held that a waiver of the protections of counsel by a person against whom formal criminal proceedings have been commenced is ineffective unless made in the presence of counsel (e.g., People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154). In the second line, it has been ruled that the nonwaivability rule is applicable to a suspect who is represented by an attorney (e.g., People v Rogers, 48 NY2d 167; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325). This nonwaivability rule was extended in People v Cunningham (49 NY2d 203), where we found custodial interrogations of an unrepresented individual to be impermissible after that individual has requested the assistance of counsel. Additionally, in People v Bartolomeo (53 NY2d 225) the court held that if the police are aware that a person whom they seek to question has other unrelated charges then pending against him, and that person is in fact represented by counsel in connection with those charges, the individual must be treated as if he is actually represented by counsel on the charges then under investigation. Finally, in People v Skinner (supra), we specified that an individual who had obtained counsel specifically on the matter under investigation may not be interrogated on the very same subject in a noncustodial setting after the individual’s attorney has requested the police not to question the suspect in his absence.

Defendants Laffosse and Johnson, who stood in lineups without the assistance of counsel which they had previously requested, now contend that their corporeal identifications should have been suppressed by parallel reasoning under the authority of this court’s decision in People v Cunningham (supra). Defendants Hawkins and Diaz claim that they had an indelible right to counsel applicable at their lineups by virtue of our decision in People v Bartolomeo (supra), since the police were aware that unrelated charges were then pending against these defendants at the time of their lineups and, in fact, defendants were actually represented by counsel in connection with those prior pending charges. The fundamental error in these arguments is that they misconstrue the nature of New York’s qounsel rule and ignore the reasons for its development.

Much like the Supreme Court’s decision in Miranda, our decisions developing the independent New York counsel rules have arisen simply out of a concern for protecting the individual during interrogations. This court has repeatedly stressed that “[a]bsent the advice of an attorney, the average person, unschooled in legal intricacies, might very well unwittingly surrender [his privilege against compulsory self incrimination] when confronted with the coercive power of the State and its agents” (People v Settles, supra, at p 161, citing People v Hobson, 39 NY2d 479, 485, supra). Thus, our indelible right to counsel rule has developed to ensure that an individual’s protection against self incrimination is not rendered illusory during pretrial interrogation.

Although we have found the assistance of counsel to be of importance during interrogations, we have also noted that counsel plays a much more limited role at identification confrontations (see People v Hobson, 39 NY2d 479, 485, supra). During interrogations, counsel may take an active role on behalf of his client, both in advising a suspect on whether to remain silent and in counseling a suspect on whether to answer particular questions once the right to remain silent has been waived (People v Settles, supra, at p 165). In contrast, during a lineup counsel plays the relatively passive role of an observer (see People v Blake, 35 NY2d 331, 337). Counsel may not actively advise his client during the lineup itself. Indeed, we have gone so far as to state that “the need for and right to a lawyer at an identification lineup is insignificant compared to the need in an ensuing interrogation” (People v Hobson, supra, at p 485).

To be sure, the assistance of counsel is not completely valueless at investigatory lineups (see People v Blake, supra). But that is not the constitutional test of whether it is required. Nor does its value to a suspect provide the full practical and reasonable picture concerning its effect on the other side of the criminal process equation — law enforcement and protection of the community and, indeed, society itself. Before a right to counsel is extended to this investigatory stage, consideration must be given to the serious detriments that emanate from the sought-after requirement of counsel at investigatory lineups. A primary policy consideration is that lineups should be conducted as close in time to the occurrence of the incident under investigation as possible. First, the recollections of a witness may fade as time passes (see People v Blake, supra, at p 337). Second, a prompt identification confrontation will benefit the suspect, both because it may diminish the possibility of a mistaken identification and, further, because it may also permit the release of an innocent suspect with a minimum of delay (see People v Blake, supra, at p 337). Finally, prompt identification confrontations may assist the police in determining whether to continue their search of the vicinity of the crime (see United States v Sanchez, 422 F2d 1198, 1200). These necessary advantages often may be lost if the lineup is required to be delayed.

We conclude that the limited benefits provided by counsel at investigatory lineups are far outweighed by the policy considerations militating against requiring counsel at this stage of the investigatory process. The Constitution does not expressly or even impliedly require it. Accordingly, we find no basis in our State Constitution for requiring counsel at investigatory lineups.

The right to the assistance of counsel at corporeal identifications therefore arises only after the initiation of formal prosecutorial proceedings (Kirby v Illinois, supra). After the accused has been formally charged by indictment, information or complaint, his Sixth and Fourteenth Amendment right to counsel will attach, and a lineup conducted “without notice to and in the absence of his counsel” will be held to violate that right (Kirby v Illinois, supra, at p 683, citing Gilbert v California, 388 US 263, 272). In contrast, the police have no obligation to secure counsel for a suspect who is merely being placed in an investigatory lineup, even when the suspect requests that counsel be provided.

Although we conclude that the State has no obligation to supply counsel at investigatory lineups, we have previously noted that if a suspect already has counsel, his attorney may not be excluded from the lineup proceedings (People v Blake, supra, at p 338). That does not mean, however, that the police must notify counsel of an impending investigatory lineup or that counsel is entitled to a lengthy adjournment at this stage of the investigatory process. In view of the limited benefits which counsel provides at this stage, the police need not suspend the lineup in anticipation of the arrival of counsel if this would cause unreasonable delay. Pertinent to this consideration is whether the delay would result in significant inconvenience to the witnesses or would undermine the substantial advantages of a prompt identification confrontation.

It follows that since the defendants in each of the present appeals were placed in lineups prior to the initiation of formal prosecutorial proceedings, they were deprived of no rights guaranteed by our Federal or State Constitutions by the absence of counsel at this stage. Furthermore, we have considered defendants’ remaining contentions and find them to be without merit.

Accordingly, in each of these four appeals, the order of the Appellate Division should be affirmed.

Meyer, J.

(dissenting). Because the majority’s insistence on following the lead of the Supreme Court in Kirby v Illinois (406 US 682) accords neither with logic nor with our own prior decisions on the right to counsel, I respectfully dissent.

Comment on the Kirby decision has made abundantly clear the illogic of its efforts to distinguish the Supreme Court’s prior holding in United States v Wade (388 US 218). The decision has been characterized as “wrong from every perspective” (Grano, Kirby, Biggers and Ash, Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?, 72 Mich L Rev 717, 730), “perhaps the least defensible, from a technical point of view, of the Court’s criminal law holdings during the term” (Young, Supreme Court Report, 58 ABAJ 1092), an exaltation of form over substance (Albert, Criminal Law — The Lineup’s Lament, Kirby v Illinois, 22 De Paul L Rev 660, 675), and as one which “removes the protective effects of counsel’s presence precisely when the danger of convicting an innocent defendant upon a mistaken identification is greatest” (Woocher, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stanford L Rev 969, 996), among other criticisms. It was reached, moreover, notwithstanding that the reasoning of Wade, though not its facts, dictated a contrary conclusion, as pr e-Kirby scholarly comment had emphasized, and as pr e-Kirby Federal and State court decisions had held.

Nor would we be blazing a new trail in refusing on State constitutional grounds to follow Kirby. Though the majority of State courts deciding the issue since Kirby was decided have followed its rule, notwithstanding its lack of logic and in many cases without discussing the merits of the question or with an expression of reluctance, other State courts have not felt so constrained. Thus, in Commonwealth v Richman (458 Pa 167, 171), the Pennsylvania Supreme Court, “convinced that it would be artificial to attach conclusionary significance to the indictment,” held that the “adversary judicial criminal proceedings” which triggered the right commenced with arrest, in People v Bustamante (30 Cal 3d 88, 100, 101-102) the Supreme Court of California held on the basis of the California State Constitution that “a California defendant’s right to assistance of counsel includes the right to counsel at a pretrial lineup” but noted that “if conditions require immediate identification without even minimal delay, or if counsel cannot be present within a reasonable time, such exigent circumstances will justify proceeding without counsel”, in People v Jackson (391 Mich 323, 338), the Supreme Court of Michigan concluded “independent of any Federal constitutional mandate, that, both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification or a photographic identification unless the circumstances justify the conduct of an identification procedure before the suspect can be given an opportunity to request and obtain counsel,” and in Blue v State (558 P2d 636, 642 [Alaska]), the Supreme Court of Alaska, stating that it was not bound by United States Supreme Court decisions when interpreting its own State Constitution, held that “In balancing the need for prompt investigation against a suspect’s right to fair procedures * * * a suspect who is in custody is entitled to have counsel present at a pre-indictment lineup unless exigent circumstances exist so that providing counsel would unduly interfere with a prompt and purposeful investigation.” There is strong reason why we should do likewise and little of practical significance to justify the majority’s conclusion.

The reason, of course, is the numerous instances in which innocent persons have been convicted on the basis of erroneous identification testimony. The Supreme Court in Wade underscored the problem: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification” (388 US, supra, at p 228), as have we, in People v Caserta (19 NY2d 18, 21): “One of the most stubborn problems in the administration of the criminal law is to establish identity by the testimony of witnesses to whom an accused was previously unknown, from quick observation under stress or when, as here, there was no particular reason to note the person’s identity.” Over 55 years ago Professor (later Justice) Felix Frankfurter pointed out that “The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials” (Frankfurter, The Case of Sacco and Vanzetti, p 30). Nor are such statements vague speculations; the documentation is exhaustive, explicit and vast.

The Borchard book dramatically illustrates the strength of the proof. Of 65 cases discussed by Professor Borchard in which innocent persons lost their lives or served prison terms, 29 were the result of mistaken eyewitness identifications, in one of which the same man, Adolf Beck, was twice convicted for crimes he did not commit, in another of which 17 separate victims swore that the innocent person was the perpetrator though he and the actual perpetrator looked not at all alike, and in 20 of which the resemblance was not close. Of equal significance in this respect is Justice Frank O’Connor’s article “That’s The Man”: A Sobering Study of Eyewitness Identification and the Polygraph (49 St John’s L Rev 1), not only because it details a number of cases of innocents convicted, but because it represents the considered views of one who has served as a Judge responsible for the trial of (and now appellate review of) criminal cases, and who also served for 10 years as the District Attorney of Queens County. Perhaps the crowning irony of the situation is that the decision in this cáse comes almost at the same time as the revelation, some 69 years too late, of proof positive of the innocence of Leo Frank, whose 1913 conviction of rape and murder is one of the most celebrated of the wrong man cases, resulting as it did in the hanging of Frank by a lynch mob.

It is the demonstrated unreliability of identification testimony and the fear that additional innocent persons may be convicted, rather than, as suggested in footnote 4 of the majority opinion, a cynical and improper assumption of police misconduct, on which the right to lineup counsel is predicated. The Wade opinion is both an explicit disclaimer of any such assumption and an explication of the danger when counsel is not present. It also demonstrated that counsel has an important role at lineups which need not impede legitimate law enforcement and suggested the possible use of substitute counsel and legislative or other regulation of procedures as possible means of dealing with the practical and constitutional problems involved. Consideration of each of those questions is, therefore, in order.

The dogma is that the role of counsel at a lineup is “passive”, but this is true only in the relative sense that he cannot engage in the plenary activity that he would during a trial. That he can be much more than an observer who will later use the knowledge thus gained to cross-examine witnesses at the trial or himself bear witness at the trial to events at the lineup is evident from our recent decision in People v Yut Wai Tom (53 NY2d 44). There defense counsel, though he did not stay to observe the actual lineup, arranged for defendant to be placed in different positions in the separate lineups that were to occur, for the removal of the jackets of the stand-ins because defendant was without a jacket, for the witnesses to view the lineup separately and for the wording of the questions to be addressed to them, and advised the defendant to assume the same pose that the stand-ins did and not to allow himself to be conspicuous (id., at p 52). Without reviewing in detail the literature on counsel’s role at a lineup, I note that the presence of counsel will reduce even unintentional biasing effects and that he can seek to enhance the fairness of the procedure by asking that witnesses be kept apart from one another both before and after lineups and that as to each witness a so-called blank lineup (without defendant in it) be held prior to that in which defendant appears, by making sure that disparities in size and physique are reduced and that none of the stand-ins are known to the witness, and by seeking, where law enforcement officials do not automatically do so, permission to have the procedure video taped. Moreover, although the officials in charge cannot be forced to accede to such requests, experience teaches that they often do, both because obviating objections to fairness more readily assures admissibility at trial of the resulting identification if there is one and because it is a necessary concomitant of every mistaken identification that the actual perpetrator remains free to commit new crimes.

No one suggests that law enforcement can never be adversely affected by the delay involved in obtaining the presence of counsel for defendant. It is for this reason that, balancing the interests of defendant and of the State, the California, Michigan and Alaska Supreme Courts have excepted the situation in which exigent circumstances do not permit giving the suspect to be viewed an opportunity to request and obtain counsel, but do require that when the police have probable cause to arrest and there is no other circumstance requiring immediate identification, an arrested person must be taken to the station house and provided with counsel before a lineup can be held (Blue v State, 558 P2d 636, 642 [Alaska], supra; People v Bustamante, 30 Cal 3d 88, 100, 101-102, supra; People v Jackson, 391 Mich 323, 338, supra; People v Dixon, 85 Mich App 271, mot for lv to app den 406 Mich 906). It is a wholly unacceptable balancing process, however, which, with no reference whatsoever to whether law enforcement will be harmed in any way if counsel be provided and without regard to his express request for counsel, simply because formal prosecutorial proceedings have not yet been begun, subjugates the right to lineup counsel of a suspect who already has counsel to “significant inconvenience to the witnesses” or the undermining of “the substantial advantages of a prompt identification confrontation” (majority opn, at p 487) and which, as to an unrepresented defendant, denies him the right to the protection of counsel. The fact is that in none of the cases before the court was there any balancing law enforcement reason for not requiring the presence of counsel at the lineup: In Laffosse, the lineup occurred more than 10 weeks after the crime and the complaining witness was in good health; in Hawkins, the elapsed time was seven months and there was no necessity for holding the lineup immediately after arrest; in Johnson, although the witnesses and stand-ins had been assembled before defendant requested counsel, it appears that defendant made his request as soon as he was told he was to be put in a lineup and it does not appear that counsel could not have been obtained or that had he been so informed before the presence of witnesses and stand-ins had been arranged there would have been any problem in obtaining their presence at a later held lineup; in Diaz, defendant was represented in an unrelated matter by a Legal Aid attorney and there is nothing to indicate that any substantial delay would have resulted from obtaining his presence or that there was any need to hold the lineup before doing so.

Nor can it realistically be argued that providing counsel will impose too great a burden on law enforcement. Inconvenience there may be but nothing to compare to the living hell imposed upon an accused person required to serve a prison sentence for a crime he did not commit. The Wade decision not only suggested use of substitute counsel and legislation or regulation as a means of meeting the practical problems (388 US, at pp 237, 239), but also quoted at length the model statute proposed in Murray, Criminal Lineup at Home and Abroad (1966 Utah L Rev 610, 627-628), which provides not only for counsel but for other safeguards. The Oklahoma Court of Criminal Appeals thereafter adopted a set of nine procedural rules governing lineups the first of which was to require that the suspect be advised of his right to counsel (Thompson v State, 438 P2d 287, 289 [Okla]). The American Law Institute’s Model Code of Prearraignment Procedure recognized the right of “an attorney undertaking to act as counsel” for the suspect to be present at a precomplaint lineup (§ 160.3, subd [1]), although in deference to Kirby it did not apply to that situation the more stringent 48-hour notice to counsel rule that it proposed for postcomplaint identification (§160.3, subd [2]; see commentary, pp 422-424). New York has no such legislation and although some enforcement officers have adopted regulations or initiated a system of video taping lineups (see People v Blake, 35 NY2d 331, 337-338), the presence of counsel is not part of present procedures, as the four cases now before us establish. Until it has been demonstrated that the presence of counsel at a prearraignment lineup in Alaska, California, Michigan, Pennsylvania and Oklahoma has presented some real problems for law enforcement in those States, or that the New York situation is so different from theirs as to make their system unworkable here, there is nothing to weigh in the constitutional balance against requiring counsel except speculation. Section 6 of article I of the Constitution of New York requires, in my view, that counsel be present at a corporeal identification procedure, whenever held, unless the People can demonstrate that exigent circumstances make the obtaining of counsel’s presence a real and substantial detriment to the invéstigatory process.

There is much in our prior decisions concerning the right to counsel, generally and at lineups, to support the rule that I urge we should adopt. With respect to the right to counsel we have “painted with broad strokes” (People v Arthur, 22 NY2d 325, 328) and noted our “special solicitude for this fundamental right” (People v Cunningham, 49 NY2d 203, 207) and “the right and need of an individual to have a competent advocate at his or her side in dealing with the State” (People v Skinner, 52 NY2d 24, 29). True, those cases involved confessions and the present cases concern prearraignment lineups, but People v Hobson (39 NY2d 479) and People v Settles (46 NY2d 154), both lineup cases, stand as equal monuments with Arthur and Cunningham to our recognition of the right. Thus, Hobson spoke of the need “to protect the individual, often ignorant and uneducated, and always in fear, when faced with the coercive police power of the State. The right to the continued advice of a lawyer, already retained or assigned, is his real protection against an abuse of power by the organized State” (39 NY2d, at p 485), and Settles of the fact that “the right of a criminal defendant to interpose an attorney between himself and the sometimes awesome power of the sovereign has long been a cherished principle” (46 NY2d, at p 160).

One need not rely on such generalities, however, for just as Wade and Gilbert presaged a rule contrary to that adopted by the Supreme Court in Kirby so do our prior decisions with respect to the majority’s acceptance of Kirby.

Thus, in People v Blake (35 NY2d 331, supra) we recognized that “uncounseled prearraignment viewings before the filing of an accusatory instrument do not invariably require exclusion of the identification thus obtained” (at p 333), but held this court free, notwithstanding Kirby, “to evaluate independently the necessity of mandating, under the State Constitution as it interprets it, the presence of counsel at prearraignment viewings” (at p 336). Reasoning that although “the rules have developed largely in connection with interrogation * * * they extend logically to allowing such counsel to be present when the accused is subjected to a corporeal identification viewing” (at p 338), and relying upon ,“the precedents in this State providing a right of access to counsel even before formal initiation of the criminal action” (at p 339), we held that in the event of delay between arrest and the filing of an accusatory instrument “the prosecution would have the burden to explain and offer proof on the pretrial'identification hearing, if one is had, why the opportunity to so have counsel at the viewing was not afforded” (at p 340). The rules laid down by Blake, with the explicit notation that they “will not impair the efficiency of law enforcement, especially in the light of the pragmatic exceptions noted” (at p 341), were stated in the following paragraph (at pp 340-341): “In summary, the presence of counsel at identification viewings is mandated after the filing of an accusatory instrument on pain of exclusion of the identification, except in narrowly-exigent circumstances. After arrest but before the filing of an accusatory instrument the presence of counsel is not mandated, but is desirable. Where the accused has counsel known to the law enforcement authorities or there is insufficiently explained delay which prevents him from obtaining counsel as he would on arraignment, and he has not waived the right to counsel, the circumstances may establish his right to counsel at the viewing, the breach of which should result in exclusion” (italics supplied).

The right thus established has been applied, though an accusatory instrument has not yet been filed, when an order directing defendant to appear in a lineup or providing for his removal from one place of detention to another for the purpose of his appearing in a lineup has been obtained and the police knew he was represented on an unrelated charge (People v Coleman, 43 NY2d 222; People v Lloyd Winston G., 45 NY2d 962; see People v Samuels, 49 NY2d 218). We have also characterized as a violation “in spirit at least, of the principles previously laid down by this court” the holding of a lineup without counsel after counsel had requested access to defendant (People v Burwell, 26 NY2d 331, 336).

I do not suggest that there is an absolute right to counsel at prearraignment lineup. Indeed, I recognize that in People v Gladman (41 NY2d 123, 130), a case in which, as shown by the briefs, defendant’s counsel conceded that Kirby limited the right to counsel to postarraignment lineups, but argued from the fact that arraignment followed immediately after lineup that the timing established defendant’s right to lineup counsel, we stated in so many words that “there is no absolute right to counsel at a prearraignment lineup,” that in People v Perez (42 NY2d 971) we held that defendant’s request that an attorney be obtained for lineup did not create a right to counsel, and that in People v Pickett (52 NY2d 892) we ruled that a defendant in custody on an unrelated charge was not entitled to counsel at an investigatory prearraignment lineup on the new charge when the record contained no indication that defendant was then represented by counsel on either charge.

What I do suggest is that the rule established by our lineup decisions to date is that there is no absolute preclusion of counsel at lineup simply because the lineup is held prearraignment and that our prior decisions require law enforcement officials, aware that a defendant has counsel on an unrelated charge, to contact counsel prior to holding a lineup unless they can show that because of exigent circumstances the delay in obtaining counsel’s presence would seriously prejudice the investigatory process. I would, moreover, because of the serious danger of misidentification involved in eyewitness identification whenever it occurs, extend the Blake rule to cover not only the case in which law enforcement authorities know that defendant has counsel but also in which they have reason to know that fact but fail to inquire further. I would also overrule Perez and hold that a suspect must be advised prior to a lineup that he has no right to refuse to participate in the lineup but does have a right to be represented by counsel and that a request for counsel, whether resulting from such advice or made independently, requires the presence of counsel at lineup unless exigent circumstances and resulting prejudice can be demonstrated by the People.

The rule that I urge finds full constitutional support in the reasoning of our decisions in cases governing the right to counsel during interrogation (e.g., People v Bartolomeo, 53 NY2d 225 [knowledge that defendant was arrested seven days earlier on an unrelated charge obligates the authorities to inquire]; People v Cunningham, 49 NY2d 203, supra [request for counsel establishes right to counsel]) and, the danger of convicting an innocent person being different in form but equally as great in result through misidentification as through statements involuntarily obtained, I find no reason in either our Constitution or the practical necessities of law enforcement to justify the lesser rule now adopted as to lineups. I would, therefore, hold Laffosse and Johnson presumptively entitled to counsel by reason of their requests for counsel, Hawkins entitled to counsel because, as the Trial Judge’s finding affirmed by the Appellate Division establishes, the police officer knew Hawkins was represented in an unrelated drug case by counsel, and Diaz entitled to counsel because the police made no inquiry despite their discovery of a bail bond receipt issued to defendant the previous day. As already noted, in none of the cases does the record establish exigency nor, so far as appears, is there reason under the rule of People v Havelka (45 NY2d 636) to remand for a hearing on that issue. In each case, therefore, with the possible exception of Laffosse, the lineup identification

should have been suppressed and the conviction should now be reversed.

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

In each case: Order affirmed.

      . Significantly, the court noted that “[t]he initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law” (Kirby v Illinois, supra, at p 689).

      . Miranda v Arizona (supra) provides, among other things, that the defendant must be permitted to have an attorney present during custodial interrogations.

      . If the suspect is not, in fact, represented by counsel in connection with the prior charge, then the police are not barred from questioning the suspect on the new matter (People v Kazmarick, supra).

      . In evaluating the benefits provided by counsel at investigatory lineups, it is important to remember that should a question arise concerning the suggestiveness of the lineup, the resolution of this issue will not come down to a credibility contest between the accused and the police. First, fears about such a credibility contest cynically and improperly assume that the police will misrepresent the lineup scenario. More importantly, however, it must not be forgotten that with each lineup identification there will be an eyewitness who can be examined and cross-examined at the Wade hearing and at the trial as to whether any improper conduct was resorted to. In this sense, lineups are fundamentally different from interrogations and thus the protective devices surrounding each may be different.

      . Another important consideration is that a defendant has no constitutional right to refuse to stand in a lineup. He does have a constitutional right, however, to refuse to answer questions. Where the waiver of a constitutional right is involved, the need for counsel’s presence takes on greater importance.

      . In People v Samuels (supra) it was held that the right to counsel attaches upon the filing of a complaint, since by statute a criminal action commences with the filing of an accusatory instrument (GPL 1.20, subd 17), which includes a felony complaint (GPL 1.20, subds 1, 8).

      . In evaluating the need for counsel at investigatory lineups, we must be mindful of the fact that an identification made at an unduly suggestive lineup may not be introduced into evidence (Kirby v Illinois, supra, at p 691). Thus, the cassandran fear of numerous misidentifications, expressed by the dissent, must be tempered with the notion that adequate constitutional and evidentiary safeguards already attend the conduct of an investigatory lineup. Indeed, as the dissenters note, the majority of State courts have embraced the Kirby rule, indicating that the weight of authority rests with the position the majority takes today. I further comment on the multiple nonjudicial sources employed in the dissent. While I, in no measure, intend disrespect to my dissenting colleagues, to the view they express, nor to academic sources generally, I am constrained to note that some of these proffered authorities do not realistically or legally justify the result for which they are advanced. Thus, no item by item response is warranted. Rather, I find confirmation and support for the majority viewpoint in the judicial decisions and analyses of our court and the Supreme Court of the United States.

      . The majority’s conclusion that there is ho right to counsel at an investigatory lineup makes irrelevant to their determination of the Laffosse case the question whether if there were such a right it could be waived out of the presence of counsel (cf. People v Yut Wai Tom, 53 NY2d 44). I, therefore, do not discuss that issue.

      . (E.g.: Mueller, Right To Counsel At Police Identification Proceedings: A Problem In Effective Implementation of An Expanding Constitution, 29 U of Pitt L Rev 65, 78, n 81 [“Since the reason for the rule is to prevent unfairness and to protect the right to meaningful confrontation at trial should the suspect be identified, the right to counsel must be afforded at any police-sponsored identification proceeding not conducted pursuant to Constitutionally sufficient regulations. Any other conclusion would be absurd”]; Quinn, In the Wake of Wade: The Dimensions of Eyewitness Identification Cases, 42 U of Col L Rev 135,143 [“Since the purpose of counsel’s presence is to avert prejudice and assure meaningful cross-examination at trial on the issue of identification, it should make no difference that the lineup occurs prior to the filing of criminal charges”]; Austin, Pretrial Right to Counsel, 26 Stanford L Rev 399, 410 [“a major departure from traditional sixth amendment functional reasoning”].)

      . (Albert, op. cit., 22 De Paul L Rev 660, 674, n 70; and Note on Kirby in 1975 Wash U LQ 423,436-437, nn 74, 75; and n 5 to Kirby plurality opn [406 US 682, 687] set forth the cases pro and con; see, also, Austin, Pretrial Right to Counsel, 26 Stanford L Rev 399, 409; and commentary to the ALI Model Code of Prearraignment Procedure, p 420, n 2, both of which confirm that prior to Kirby a substantial majority of courts had applied Wade to preindictment identification proceedings and required counsel at all lineups.)

      . (Note 1975 Wash U LQ 423, 437-440, and nn 76, 88.)

      . (See, also, Commonwealth v Taylor, 472 Pa 1.)

      . (See, also, People v Dixon, 85 Mich App 271, mot for lv to app den 406 Mich 906.)

      . (Borchard, Convicting the Innocent, xiii; Frank & Frank, Not Guilty, pp 31, 61; Gardner, The Court of Last Resort, ch 8; Harris, A Treatise on the Law of Identification, pp 416-440; Houts, From Evidence to Proof, pp 10-13; Loftus, Eyewitness Testimony, pp 1, 7, 179; Reynolds, Courtroom, ch 8; Rolph, Personal Identity, pp 76-92; Sobel, Eyewitness Identification, ch 1; Wall, Eye-witness Identification in Criminal Cases, ch 1; Watson, Trial of Adolf Beck; Wigmore, Science of Judicial Proof [3d ed], § 251; Wilder & Wentworth, Personal Identification, p 37; Williams, Proof of Guilt [3d ed], pp 110-113.)

      . (Borchard, op. cit, n 5, xiii; 1-3.)

      . (New York Times, March 8, 1982, p 11, col 1.)

      . (See, e.g., Golden, A Little Girl Is Dead.)

      . (388 US, at p 235: “We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification.”)

      . (388 US, at pp 235-236: “The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — ‘that’s the man.’ ”.)

      . (388 US, at pp 230-232, 236-239.)

      . (Eisenberg & Feustel, Pretrial Identification: An Attempt to Articulate Constitutional Criteria, 58 Marq L Rev 659; Grano, op. cit., pp 747, 785; Lefcourt, The Blank Line-Up: An Aid to the Defense, 14 Grim L Bull 428; Levine & Tapp, Psychology of Criminal Identification: The Gap from Wade to Kirby, 121 U of Pa L Rev 1079; Mueller, op. cit., p 74; Quinn, op. cit., p 149; Read, Lawyers at Lineups: Constitutional Necessity or Avoidable Extravagance, 17 UCLA L Rev 339, 364.)

      . (Cf. People v Yut Wai Tom, 53 NY2d 44, supra; and see Mueller, op. cit., p 75; The Rule of the Defense Lawyer at a Line-up in Light of the Wade, Gilbert and Stovall Decisions, 4 Grim L Bull 273, 288; Eisenberg & Feustel, op. cit., p 677.)

      . Substitute counsel at prearraignment lineups have been used effectively" in Pittsburgh (Note, 29 U of Pitt L Rev 65, 83; and see Model Code of Prearraignment Procedure, § 160.5, subd [1], par [c], and commentary, at pp 452-453).

      . Governor Dewey, himself a noted prosecutor, was sufficiently perturbed over the erroneous identification problem as a result of the conviction of Bertram A. Campbell for a crime he did not commit that he not only pardoned Campbell but also had his counsel propose the subject as one for study by the Judicial Council (Fourteenth Ann Report of NY Judicial Council, 1948, pp 233, 235). After studying a number of possibilities including use of psychological tests, lie detector tests and the requirement of corroboration of identification evidence, the council concluded that the problem was better dealt with by regulation than by legislation (id., at p 73; the study appears at pp 233-268). Other palliatives have been suggested, including special instructions to the jury (see United States v Telfaire, 469 F2d 552, 558-559; Woocher, op. cit., at pp 1002-1005; Grano, op. cit., at pp 794-795; Loftus, Eyewitness Testimony, at pp 189-190).

      . There is, indeed, some empirical evidence to the contrary in Steele, Kirby v Illinois: Counsel At Lineups (9 Grim L Bull 49). Professor Steel noted (at p 57, n 38) that correspondence with nine metropolitan police departments about the impact of the Kirby decision showed that six made no change in previously devised Wade procedures and the other three indicated that they would do likewise except perhaps in emergency cases or late at night.

      . For the reason stated in footnote 1 above, I do not discuss the waiver issue involved in the Laffosse case.