text:
    The People of the State of New York, Respondent, v Harry Blasich, Appellant.
    Argued April 28, 1989;
    decided June 13, 1989

      POINTS OF COUNSEL

      Paul Lerner for appellant.
    I. The seizure of defendant’s person and the search of his automobile and its contents was unconstitutional. The fruits of said search should be suppressed. (People v Cantor, 36 NY2d 106; Terry v Ohio, 392 US 1; Chambers v Maroney, 399 US 42; Rios v United States, 364 US 253; Henry v United States, 361 US 98; People v Loria, 10 NY2d 368; South Dakota v Opperman, 428 US 364; People v Bookless, 120 AD2d 950; People v Roth, 66 NY2d 688; People v

      Sullivan, 29 NY2d 69.) II. Defendant was denied a fair trial by the introduction of evidence of uncharged criminal acts. (People v Molineux, 168 NY 264; People v Jackson, 39 NY2d 64; People v Cook, 42 NY2d 204; People v Allweiss, 48 NY2d 40; People v Vails, 43 NY2d 364; People v Ventimiglia, 52 NY2d 350; People v Green, 35 NY2d 437; People v Heiss, 113 AD2d 953; People v Rojas, 121 AD2d 315; People v Fiore, 34 NY2d 81.)

      John J. Santucci, District Attorney (Michael O’Brien of counsel), for respondent.
    I. Physical property removed from defendant’s car was properly admissible at trial. (People v Ingle, 36 NY2d 413; People v Vereb, 122 AD2d 897; People v Troiano, 35 NY2d 476; People v Saglimbeni, 95 AD2d 141, 62 NY2d 798; United States v Sharpe, 470 US 675; People v Hicks, 68 NY2d 234; South Dakota v Opperman, 428 US 364; People v Gonzalez, 62 NY2d 386; People v Liccione, 50 NY2d 850; People v Jenkins, 47 NY2d 722.) II. Evidence of defendant’s conduct did not warrant a declaration of a mistrial when the proof of guilt was overwhelming and the court issued curative instructions. (People v Santiago, 52 NY2d 865; People v Green, 35 NY2d 437; People v Galloway, 54 NY2d 396; People v Arce, 42 NY2d 179; People v Crimmins, 36 NY2d 230; People v Heiss, 113 AD2d 953; People v Rojas, 121 AD2d 315; People v Fiore, 34 NY2d 81; People v Wood, 66 NY2d 374.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Defendant has been convicted on charges that he possessed cocaine, burglar’s tools and illegal weapons, all of which were found in the automobile that he occupied. The only issue of consequence presented on this appeal is whether defendant’s motion to suppress the evidence found in the car should have been granted. We agree with the courts below that the police did not exceed permissible bounds in searching the car.

I.

At approximately 7:00 p.m. on April 18, 1985, Port Authority Police Officer Curtis King, who was assigned to Kennedy Airport, responded to a report of a suspicious vehicle in parking lot number two at the airport. The officer observed the described vehicle, a brown Plymouth with three male occupants, cruising slowly up an aisle. He noted that the car passed, a number of vacant parking spaces and thus did not appear to be attempting to park. Officer King stopped the vehicle, asked the driver — defendant—a few questions, checked the license and registration and, being satisfied that no crime had been committed, allowed defendant and his two companions to proceed. The officer took note of the vehicle’s license number and continued his patrol.

At about 7:45 p.m. that same evening, Officer King heard a radio report that a car had left parking lot number two without paying. He contacted the officer who had been dispatched to the scene and learned that the license plate of the offending vehicle matched that of the car he had stopped earlier. King remembered that defendant had mentioned that he intended to buy gas at a nearby Amoco station. He drove to the station, where he was soon joined by other officers and where he spotted the car with defendant seated behind the wheel. One of defendant’s companions was in the back seat; the other was just getting into the front passenger seat.

Officer King approached the vehicle and saw on the floor of the passenger side of the front seat a number of tools commonly used to break into cars — a "slim jim”, a lock-punching device, a chisel and a screwdriver. On the front seat was a blue gym bag and on the floor in the rear of the passenger compartment were two parking lot cards. King seized the tools and the cards. Although he did not immediately notify defendant or the other occupants of the car that they were under arrest, he testified at the suppression hearing that the subjects were advised of their rights and that they were not free to leave. According to another officer, at least one of the car’s occupants was handcuffed. Officer King took the three suspects to the Port Authority Police Station. He explained at the hearing that he did not intend to arrest them for theft of services at that time, but he took them to the station to investigate further "since the tools were seen on the floorboard of the vehicle.”

At the station, Officer King asked defendant for identification and defendant, who had earlier identified himself as Harry Blasich, produced identification in the name of Harry Carney. King then placed defendant under arrest for criminal impersonation and ordered the vehicle impounded. A search of defendant’s vehicle followed and the blue gym bag on the front seat was found to contain a .38 caliber revolver, an incendiary device and cocaine.

After being indicted for two counts of criminal possession of a weapon, possession of a controlled substance and possession of burglar’s tools, defendant moved to suppress the physical evidence found in the car. Supreme Court denied the motion, concluding that the search of the vehicle and the bag was authorized under our rulings in People v Belton (55 NY2d 49) and People v Langen (60 NY2d 170, cert denied 465 US 1028). The Appellate Division affirmed, noting that "the failure to pay the parking fee was not a mere traffic violation which would have limited the officer’s subsequent rights to search the vehicle” (People v Blasich, 140 AD2d 361). We also affirm.

II.

It is not contended that Officer King’s initial stop of defendant’s car in the parking lot was impermissible or that it tainted the subsequent search in any way. Nor is there any serious dispute that the officer was entitled to approach the car at the Amoco station or that, from this vantage point, the tools on the floor of the vehicle were in plain view. The hearing court concluded that, based on the radio report that the car had left the parking lot without paying, the suspicious behavior observed by Officer King earlier that evening and the presence of burglar’s tools on the floor of the vehicle, Officer King’s decision to take defendant into custody was proper. This conclusion, which must be construed as a finding that there was probable cause to arrest defendant at the time he was transported to the Port Authority Police Station, was not disturbed by the Appellate Division, is supported by the evidence adduced at the hearing and is, accordingly, not subject to further review by this court (see, People v McRay, 51 NY2d 594, 601).

The only question that remains is whether, under these circumstances, the police were authorized to search the blue gym bag seen on the front seat of the car.

Under United States Supreme Court precedent applying the Fourth Amendment, as a contemporaneous incident to the lawful arrest of an occupant of a vehicle, the police may search the entire passenger compartment of a vehicle and containers found therein without a warrant and without any particularized evidentiary basis for doing so (see, New York v Belton, 453 US 454). This court has not adopted this bright-line approach to automobile searches incident to arrest as a matter of State constitutional law. We have noted, instead, that the search-incident-to-arrest exception to the warrant and probable cause requirements of our State Constitution (see, NY Const, art I, § 12) exists only to protect against the danger that an arrestee may gain access to a weapon or may be able to destroy or conceal critical evidence. Thus, we have held that the scope of such a search must be limited to the arrestee’s person and the area from within which he might gain possession of a weapon or destructible evidence (People v Belton, 50 NY2d 447, 450 [Belton I]; see, People v Smith, 59 NY2d 454).

We have also recognized, however, that when the occupant of an automobile is arrested, the very circumstances that supply probable cause for the arrest , may also give the police probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape. If so, a warrantless search of the vehicle is authorized, not as-a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement (see, People v Belton, 55 NY2d 49, 53-55, supra [Belton II]).

The automobile exception, it should be noted, is an exception only to the warrant requirement; it does not, in contrast to the search-incident-to-arrest exception, dispense with the requirement that there be probable cause to search the vehicle (People v Langen, 60 NY2d 170, 181, supra). Two considerations have generally been cited as justifying the exemption of car searches from the warrant requirement in appropriate circumstances: the reduced expectation of privacy associated with automobiles, and their inherent mobility which often makes it impracticable to obtain a warrant (People v Ellis, 62 NY2d 393, 397; Belton II, supra, at 53).

In light of these considerations, we have held that "where police have validly arrested an occupant of an automobile, and they have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein” (Belton II, supra, at 55; see, People v Langen, supra, at 172 [search may include locked containers]). It was on the basis of this rule that the hearing court sustained the search of the gym bag in the present case.

Defendant’s challenge to the hearing court’s application of the Belton rule proceeds in two stages. First, he contends that the mere presence of the tools on the floor of the vehicle did not constitute probable cause to arrest him for possession of burglar’s tools because that crime requires possession of the tools under circumstances evincing an intent to use them to commit an offense "involving forcible entry into premises, or * * * larceny by a physical taking, or * * * theft of services” (Penal Law § 140.35). Indeed, defendant contends that the hearing court did not find probable cause to arrest him for possession of burglar’s tools, but concluded instead that Officer King was authorized to take him into custody for theft of services.

The second stage of defendant’s argument is that, if there was probable cause to arrest him only for theft of services, then, under the Belton rule, there was no basis for searching the gym bag. He asserts that the police could not reasonably suspect that the car would contain evidence related to the crime of theft of services beyond the parking lot stubs already found on the floor of the back seat of the car.

We cannot agree with defendant’s initial premise — that there was insufficient cause for an arrest for possession of burglar’s tools or that the hearing court so found. The court ruled on the propriety of the arrest as follows: "Under the circumstances, it was proper for the officer to take the defendant] into custody rather than issue a summons for failure to pay the parking lot fee. Not only was this offense a crime but, in addition, the car had been observed behaving suspiciously in the parking lot just thirty minutes earlier, and when the officer approached it in the Amoco Gas Station, he saw a number of burglar’s tools on the floor in front of the passenger seat.” This conclusion, together with the court’s citation of Belton II (supra) and Langen (supra) for the proposition that the search of the gym bag was authorized, indicates to our satisfaction that the hearing court found both that there was probable cause to arrest defendant for possession of burglar’s tools and that the circumstances surrounding the arrest gave the officers probable cause to believe that the bag would contain further evidence related to that crime. Furthermore, bearing in mind that "[pjrobable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt” (People v Bigelow, 66 NY2d 417, 423), the evidence adduced at the hearing adequately supports those findings.

Nor is it significant under these circumstances that, when Officer King placed defendant under formal arrest at the Port Authority Police Station, the basis for the arrest was criminal impersonation rather than possession of burglar’s tools or theft of services. Although we have stated that a car search under the Belton rule requires "a nexus between the probable cause to search and the crime for which the arrest is being made’’ (People v Langen, supra, at 181 [emphasis added]), nothing in our decisions suggests that the emphasized language refers only to charges formally announced by the arresting officer and we perceive no reason to adopt such a narrow, formalistic approach today.

The nexus requirement was articulated in Langen as a means of distinguishing a search under the automobile exception recognized in Belton II, during which a search of a closed container outside the arrestee’s reach is permissible, from a search incident to arrest, which is governed by stricter temporal and spatial limits (People v Langen, supra, at 181). We noted that the broader scope of a Belton search is justifiable because it can only be conducted if there is probable cause to search the car, whereas a search incident to arrest may be conducted without probable cause beyond that which justifies the arrest of the person (id.).

The connection between the crime and the search is significant in the Belton context because the nature of the crime and the circumstances surrounding the arrest are what provide (or fail to provide) probable cause for the search. But there is no inflexible requirement that the search concern only items relating to crimes for which the defendant is formally arrested. In People v Ellis (62 NY2d 393, supra), for example, where the defendant was arrested for a traffic infraction but the circumstances gave the arresting officers probable cause to believe that the car contained a gun, we sustained the search of the car, noting that "it is irrelevant that defendant was arrested for a traffic infraction. It was the probable cause to believe a gun was in the car that gave the police officers grounds for the search of the car” (id., at 397).

Thus, the proper inquiry in assessing the propriety of a Belton search is simply whether the circumstances gave the officer probable cause to search the vehicle. Whether the officer had probable cause to arrest an occupant of the vehicle for one or more crimes is significant. Which of those crimes the officer selected when formally notifying the suspect that he was under arrest has little bearing on the matter.

Here, for example, according to the hearing court’s findings, Officer King had probable cause to arrest defendant for possession of burglar’s tools and, given that and the surrounding circumstances, probable cause to believe that the car would contain further evidence relating to that crime. He could have placed defendant under arrest for possession of burglar’s tools at that point; in fact, Officer King’s testimony and the hearing court’s findings suggest that functionally, if not formally, defendant was arrested when he was taken from the gas station to the police station. There was, at that moment, a sufficient predicate for a search of the car, including the gym bag. The evidentiary basis for the search was in no way eroded by Officer King’s decision, when he later placed defendant formally under arrest, to charge defendant with criminal impersonation rather than possession of burglar’s tools.

Finally, that the search of the car was conducted after defendant was taken to the Port Authority Police Station and the vehicle was impounded does not compel a different result. The justifications for a warrantless search conducted upon probable cause pursuant to the automobile exception do not dissipate merely because the vehicle has been placed in the control of the police (People v Milerson, 51 NY2d 919, 921) and the exception is equally applicable whether the search is conducted at the time and place where the automobile was stopped or whether, instead, the vehicle is impounded and searched after removal to the police station (People v Orlando, 56 NY2d 441, 446). Here, where the search was reasonably close in time and place to the point of arrest, we conclude that there was no requirement that the police further delay the search to obtain a warrant (People v Milerson, supra, at 921).

III.

For these reasons, we conclude that defendant’s motion to suppress the fruits of the search was properly denied. Defendant’s remaining contention, concerning alleged error in the admission of evidence of uncharged crimes at trial, is without merit in light of the fact that the trial court sustained defendant’s objection and gave a curative instruction (see, People v Santiago, 52 NY2d 865).

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

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed.

      . Both courts also held in the alternative that the search was justified as an inventory search, citing People v Gonzalez (62 NY2d 386). Our conclusion that the search was permissible under People v Belton (55 NY2d 49) makes it unnecessary for us to address defendant’s contentions that the People’s proof at the suppression hearing was insufficient to establish that the search was conducted pursuant to standard police procedures authorizing the inventory search of impounded vehicles.

      . References to the "Belton rule” or a "Belton search” are to our Belton II decision (55 NY2d 49), which followed the United States Supreme Court’s reversal of our decision in Belton I (50 NY2d 447).


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Alice Taylor, Appellant. The People of the State of New York, Respondent, v Paul Taylor, Sr., Appellant.
    Argued April 26, 1989;
    decided June 8, 1989

      POINTS OF COUNSEL

      John J. LaDuca for Alice Taylor, appellant.
    I. The two-pronged Aguilar-Spinelli standard should be applied in determining the validity of a search warrant when an undisclosed informant appears personally before the issuing Magistrate off the record. (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Brown, 40 NY2d 183; People v Hicks, 38 NY2d 90; People v Bartolomeo, 53 NY2d 225; People v Sullivan, 56 NY2d 378; People v Peterson, 47 AD2d 431.) II. The statutory requirements of CPL 690.35 and 690.40 are not satisfied when unrecorded statements made under oath before the issuing Magistrate are produced at a hearing before a trial court in order to supplement a deficient written application for a search warrant. (People v Peterson, 47 AD2d 431.) III. The search warrant here in question did not meet the second prong of the Aguilar-Spinelli standard requiring a determination by the issuing Magistrate as to the basis for the informant’s knowledge supplied in the application for the warrant. (People v Wirchansky, 41 NY2d 130; People v Lewis, 73 AD2d 1032; People v Carrado, 22 NY2d 308; People v Brown, 40 NY2d 183.)

      Gary Bitetti for Paul Taylor, Sr., appellant.
    I. A search warrant issued solely on the in camera testimony of an undisclosed informant, where no record of the informant’s testimony has been preserved for independent review, must be controverted and the evidence obtained thereby suppressed. (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Brown, 40 NY2d 183; People v Lewis, 73 AD2d 1032; People v Lalli, 43 NY2d 729; People v McCray, 51 NY2d 594; People v Bigelow, 66 NY2d 417; People v Hanlon, 36 NY2d 549; People v P. J. Video, 68 NY2d 296.) II. A failure to record oral testimony given in support of a written search warrant application does not comply with the statute, is a denial of due process, and the evidence seized should be suppressed. (People v Johnson, 66 NY2d 398; People v Griminger, 71 NY2d 635; People v Peterson, 47 AD2d 431; People v Lopez, 134 AD2d 456; People v Potwora, 48 NY2d 91.)

      Howard R. Relin, District Attorney (Robert Mastrocola of counsel), for respondent.
    I. The court below properly concluded that Aguilar-Spinelli analysis was inapplicable in assessing the validity of the search warrant. (Spinelli v United States, 393 US 410; Aguilar v Texas, 378 US 108; People v Hanlon, 36 NY2d 549; People v Wheatman, 29 NY2d 337; People v Barto

      lomeo, 53 NY2d 225; People v Hicks, 38 NY2d 90; People v Bagby, 100 AD2d 627; People v Sullivan, 56 NY2d 378; People v Cantre, 95 AD2d 522, 65 NY2d 790.) II. Even if AguilarSpinelli analysis were to be applied the warrant was still properly issued. (People v Rodriguez, 52 NY2d 483; People v Wheatman, 29 NY2d 337; People v Brody, 107 AD2d 939; People v Duncan, 57 AD2d 638; People v Hanlon, 36 NY2d 549; People v Santana, 106 AD2d 523; People v Lewis, 73 AD2d 1032; People v Sullivan, 56 NY2d 378; People v Bartolomeo, 53 NY2d 225; People v Brown, 40 NY2d 183.) III. The court below properly found that there was substantial compliance with CPL 690.40 (1). (People v Peterson, 47 AD2d 431; People v Zimmer, 112 AD2d 500; People v Brown, 40 NY2d 183; People v Pizzuto, 101 AD2d 1024; People v Darby, 46 AD2d 775; People v Sullivan, 56 NY2d 378; People v Fici, 114 AD2d 468; People v Lalli, 43 NY2d 729; People v Lewis, 73 AD2d 1032; People v Hanlon, 36 NY2d 549.)
   OPINION OF THE COURT

Kaye, J.

At the core of this appeal, in a prosecution for criminal possession of a controlled substance and related offenses, is the meaning of "substantial compliance” with the requirements of a statute — here, a statute specifically mandating that testimony taken in support of a search warrant application "be either recorded or summarized on the record by the court.” (CPL 690.40 [1].)

During the evening of January 16, 1987, the local police department called Webster Town Justice Jack Van Ingen to the station to conduct a hearing on an application for a warrant to search defendants’ residence. Because his own courtroom was undergoing repairs, Justice Van Ingen was unable to use the tape recorder there to record the statements. Instead, as he later described, he made a "few” handwritten notes for his "own edification” (in his words), while Police Officer Scott Parsons questioned both witnesses. Those notes were the only effort the Magistrate made to keep a record of the testimony. Several months later at the request of the District Attorney’s office, Parsons prepared a reconstructed version of his questions and the informants’ answers.

The warrant application recited that it was based on sworn testimony before Justice Van Ingen by confidential informants who within the previous 24 hours had purchased LSD at defendants’ home. Police Officer Kenneth Rath, who made the application, claimed no personal knowledge of the facts on which it was based; his supporting deposition stated simply that he had interviewed two confidential informants, who said they had gone to defendants’ residence, that one waited outside while the second went in and asked for two "hits” of LSD which were furnished, and that the informant had purchased LSD there several times previously. Apparently, neither informant would sign a sworn statement, and neither had previously supplied information to the police department.

When the warrant was executed a few hours after its issuance, the police found small quantities of LSD and marihuana and a prescription bottle containing a codeine preparation, and the present indictments followed.

Upon defendants’ motion challenging the warrant, on June 9, 1987 — less than six months from the date of the warrant — a suppression hearing was held at which both Justice Van Ingen and Police Officer Parsons testified. Justice Van Ingen could not find his notes. Although he testified that he had placed his notes in the "Taylor file,” he also stated that he was not certain whether his own clerks had misplaced the file or the file had been given to the prosecutor. In any event, whatever the "Taylor file” might be, it is plain that it was not kept as an official court record, with the safeguards attendant upon preserving such records for purposes of legitimate challenge to the warrant or appellate review.

Initially, the Town Justice testified that he remembered nothing at all about the informants’ testimony save that he had put them under oath and taken background information from them; he could not recall whether he had seen the supporting7 deposition before signing the search warrant. His memory was refreshed by dint of repeatedly being shown Parsons’ reconstructed questions and answers. Eventually he recalled that both informants had mentioned going to defendants’ house in order to purchase LSD, and that one informant stated that he had bought LSD. However, Justice Van Ingen was unable to recall any other questions or answers. Parsons, by contrast, testified in some detail about the responses that each informant had given to his questions.

County Court concluded that the warrant was defective, and suppressed its fruits, because viewed as a written application there was no information to satisfy the Aguilar-Spinelli requirement of reliability of the informants (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410), and viewed as an oral application there was no compliance with CPL 690.36. The Appellate Division reversed, holding that this was a written application supported by oral testimony and not an oral application; that Aguilar-Spinelli was inapplicable to a warrant application not based on hearsay; and that the Magistrate’s reliance on the oral sworn testimony of the two informants sufficiently established probable cause. Concluding that the requirements of CPL 690.40 were not satisfied, we now reverse.

Preliminarily, we note that the Appellate Division correctly held that the application in this case was a written and not an oral search warrant application. Even though supported by oral testimony, the application was a formal document, sworn and subscribed by a police officer, with a supporting deposition (CPL 690.35 [2] [c]). An oral application, by contrast, is one "communicated to a judge by telephone, radio or other means of electronic communication.” (CPL 690.36 [1].) Further, we agree with the Appellate Division that the two-pronged Aguilar-Spinelli test (see, People v Griminger, 71 NY2d 635) is inapplicable. When a warrant application is based not on the personal knowledge of the police officer making the application but on information relayed to that officer by another person, the officer is in effect vouching for the reliability of an informant known to the police but not known to the Magistrate. But that standard is inapplicable where, as here, the witnesses appear and testify before the Magistrate, who is then himself in a position to assess their veracity in determining the existence of probable cause (see, People v Bartolomeo, 53 NY2d 225, 233-234).

The suppression motion should be granted, however, because the statutory standards for the warrant were not satisfied, and the purposes for which they exist were undermined. CPL 690.40 provides that in determining a search warrant application, "the court may examine, under oath, any person whom it believes may possess pertinent information.” It then goes on to require that "[a]ny such examination must be either recorded or summarized on the record by the court.” The procedure followed in this case did not comply with the statutory mandate of recordation.

As we have previously recognized, substantial — rather than literal — compliance may satisfy the written application requirements (People v Brown, 40 NY2d 183, 186-188; People v Sullivan, 56 NY2d 378; cf., People v Lalli, 43 NY2d 729). Plainly, however, conduct cannot be considered as in "substantial compliance” with statutory standards when the legislative purposes in adopting the statute have not been met.

Two legislative purposes have been identified as underlying the requirement of CPL 690.40 (1) that the court itself record or summarize the witness’ statement on the record: first, assurance of the regularity of the application process (People v Crandall, 108 AD2d 413, 417-418, affd 69 NY2d 459) and second, preservation for appellate review of the grounds upon which a search warrant is issued (People v Peterson, 47 AD2d 431, 434). Neither objective was met here.

The lack of assurance of the regularity of the application process is manifest when this case is compared with People v Brown (40 NY2d 183, supra), which articulated the principle of substantial compliance for warrant applications. Unlike Brown, here it cannot be said that "the record shows a conscientious effort to comply with constitutional and statutory requirements”. (Id., at 188.) Although in Brown the informant’s statement had not been recorded, the court noted on the record at the time the warrant was issued that he had heard the informant and that his testimony was essentially the same as the recorded statement made by the police officer. There is no comparable record by the court here. The Magistrate’s "few” notes taken for his "own edification” cannot be equated with an effort, let alone a conscientious effort, to create a contemporaneous record of the testimony given by the informants as required by statute. Moreover, no effort was made to file those notes with the court or preserve them in any other way for purposes of legitimate challenge to the warrant.

In Brown, the warrant was issued only a year after CPL 690.40 took effect. We indicated that, although the procedure followed was "not ideal,” the circumstances were "novel, perhaps unique, and thus there are no clear violations of settled principles.” (Id., at 188.) Now more than a decade has elapsed, and a procedure that evidences even less of an effort to comply with the statutory mandate can be considered neither conscientious nor substantial compliance. For this case, such a procedure provides no assurance of the regularity of the process that resulted in issuance of the warrant, and for future cases it unacceptably dilutes the statutory standard.

Nor can it be said that the grounds upon which the Magistrate issued the warrant have been preserved for appellate review. By the time of the suppression hearing, there was no contemporaneous record of the informants’ oral testimony, not even a summary of its contents. Moreover, the issuing Magistrate had no recollection of what they had imparted in support of the warrant application; the few details he was eventually able to summon up were prompted by his repeated reference to a version of the testimony reconstructed by a police officer whose warrant application was at stake, after the search had proved fruitful. We do not believe that the warrant requirement functions, as it should, to facilitate review of probable cause and avoid justification for a search, by evidence uncovered in the course of the search when the warrant is sustained "solely upon the after-the-fact representations of the police as to what they told the magistrate” (2 LaFave, Search and Seizure § 4.3 [b], at 174 [2d ed]). That, in effect, was what transpired here.

We do not mean to suggest that an effort to comply substantially with the mandate of the statute, coupled with a genuinely inadvertent loss of recorded testimony, might not call for a different result, provided that there was some reliable basis for reconstructing the informants’ testimony. It is the absence of any of these factors that leads us to reverse in this case.

This failure of substantial compliance with the requirements of law requires that the evidence discovered during the search purportedly authorized by the defective warrant be suppressed, notwithstanding that the recordation requirement is set forth in a statute rather than in the State or Federal Constitution. The purpose of the recordation requirement of CPL 690.40 (1) is to provide the very basis for an appellate determination of probable cause for issuance of a search warrant. Thus, substantial failure to comply with this statute is wholly unlike other statutory violations (see, e.g., People v Sampson, 73 NY2d 908; People v Harris, 48 NY2d 208, 216). While not itself a constitutional requirement, compliance is indispensable to the determination whether the constitutional requirements for a valid search and seizure have been met. Where, because of failure to comply with CPL 690.40 (1), a reviewing court cannot make a fair and accurate assessment of defendant’s constitutional claims, defendant is entitled to the remedy of suppression.

The Town Justice here had no independent recollection of substance concerning the basis upon which he issued the warrant, save that he went through the usual preliminary steps. Although we recognize, along with the dissent, that unusual situations inevitably arise in which literal compliance with statutory requirements is not possible, in our view that must be balanced against the defendant’s entitlement to a basis upon which a reviewing court can determine what factors went into the initial determination of probable cause to conduct a search. If it were true, as the dissent implies, that a reviewable basis could be pieced together solely from police documents submitted in partial support of the application, then the Legislature’s recordation requirement becomes a nullity.

Accordingly, as to each defendant the order of the Appellate Division should be reversed and County Court’s order granting the suppression motion reinstated.

Simons, J. (dissenting). In my view the record demonstrates that the court complied with the provisions of CPL 690.40 (l) and that the warrant it issued was supported by probable cause. That being so, I find no reason to suppress the evidence because the Magistrate’s file and its contents, including his notes on the informants’ testimony, was accidentally lost. Accordingly, I would affirm the orders of the Appellate Division.

Defendants, husband and wife, their son Paul Taylor, Jr., and another were charged in a nine-count indictment with multiple offenses of selling and possessing controlled substances, viz., LSD, codeine and marihuana, conspiracy to sell drugs, and four counts of endangering the welfare of female children, ages 15, 13, 8 and 6. The endangering counts charged defendants with supplying alcohol and drugs to one of the children and with possessing and using drugs and engaging in drug trafficking in the presence of all of them. The offenses occurred in the Taylor residence and accordingly the police, when they acquired knowledge of defendants’ criminal conduct, sought a warrant to search the premises. The application was made to Webster Town Justice Jack Van Ingen, a Magistrate with 31 years experience. The majority claims that he failed to comply with the procedural requirements of CPL 690.40 (1) when issuing the warrant and that there is no evidence to establish probable cause existed for the warrant.

The warrant was issued on the basis of an application executed by Police Officer Rath supported by the sworn testimony of two informants appearing before the Judge. Concededly, Justice Van Ingen did not make a transcript or a tape recording of the informants’ testimony. He testified at the reconstruction hearing that he normally records the testimony of witnesses at hearings on search warrant applications in two different ways. If the application is made in his chambers or in the courtroom, he records the testimony on a built-in tape recorder. If he hears the application in some other place, he writes the testimony of the witnesses on paper. Because the Webster Town Court was "torn up” and undergoing renovations at the time of this application, Justice Van Ingen conducted the hearing in the police department and recorded the witnesses’ testimony manually on a yellow pad. The Judge placed the informants under oath and then advised them, in "several different ways”, that they were not obliged to testify, they could stop anytime they wished, that they were entitled to have an attorney present and to have their mothers and fathers present. Both responded that they did not wish attorneys or their parents called. Each witness testified for approximately 5 to 8 minutes, answering prepared questions asked by Officer Parsons. The Judge testified that during their testimony he "constantly” took handwritten notes of their answers on a yellow pad. This, he said, was consistent with his customary practice of taking "verbatim” notes when he did not have a tape recorder. These notes were put in the Taylor’s court file at the conclusion of the testimony.

In my view, this procedure complies with the requirements of CPL 690.40 (1). Indeed, the Judge went beyond the provisions of the statute which require only a summary of the testimony. Notwithstanding the majority’s speculation that the notes were inadequate, it appears from a fair reading of the Judge’s testimony at the reconstruction hearing that he compiled a thorough record of the questions and answers and retained them with his court files. Moreover, there can be little doubt about the regularity of the application process. The witnesses appeared in person before the Magistrate, and after being fully advised of their rights, answered under oath prepared questions propounded to them in support of the sworn application.

Unfortunately, the Judge’s notes were lost but probable cause for the warrant is found in the warrant documents and the record of the reconstruction hearing and they establish that the court had a constitutional basis for its action.

First, the warrant application, which was submitted to the Town Justice and executed before him following the examination of the informants, confirms the substance of the informants’ testimony. It sets forth the grounds for the warrant and states that the information supporting it is based upon testimony given that night by the informants before the Judge. Then it states that two informants testified before the Town Justice and "swore under oath” that they had purchased controlled substances at defendants’ residence during the prior 24-hour period. This is objective evidence verifying the informants’ testimony. It is inconceivable that the Judge could have taken the officer’s oath on this application and issued a warrant only minutes after the hearing at which he presided when the application contained inaccurate representations of what occurred. Thus, the application does not represent "after-the-fact representations of the police as to what they told the magistrate”, but rather constitutes a contemporaneous record evidencing the actual sworn testimony upon which the Magistrate determined that probable cause existed. This summary in the application is preserved for our review and, therefore, satisfies the legislative purpose of CPL 690.40 (1) by providing a basis for an appellate court to determine whether the search warrant was properly issued (see, People v Peterson, 47 AD2d 431, 434).

In addition, the reconstruction hearing provides a supplement to the warrant application and confirms that the proper procedures were followed. Although the Judge could not recall all the questions and answers, he had no doubt that there was such a hearing, that two witnesses appeared before him testifying fully and at length, and that they testified under oath that they had purchased drugs within the last 24 hours at the defendants’ residence on Ridge Road. Moreover, the Judge’s recollection was corroborated by the testimony of Officer Parsons who also testified at the reconstruction hearing about the details of the warrant hearing.

Thus, there is no question that the hearing was held and that informants appeared and testified before the Magistrate. Based upon their testimony, the Town Justice properly found probable cause existed for the issuance of the warrant. The live sworn testimony of the two informants that they had purchased controlled substances at defendants’ dwelling within the prior 24-hour period "and had in the past, purchased the same controlled substance at the same dwelling, consummed [sic] the controlled substance, and experienced a reaction consistent with their prior experiences of consumming [sic] the controlled substance” was sufficient to establish probable cause. Given these circumstances, the prosecution of defendants should not be frustrated merely because the Magistrate, after having complied with CPL 690.40 (1), inadvertently lost the notes required by its provisions.

The majority rely on People v Brown (40 NY2d 183) and contend that the present facts do not meet the standards of substantial compliance outlined in that case. In Brown the court upheld a warrant issued without a formal written application. The Magistrate there spoke to the police informant off the record, stating afterwards, " T have heard the informer and after * * * hearing the officer the information tallies and I consider that he’s reliable’ ” (id., at 185). Although there was no written warrant application, the court found substantial compliance with CPL 690.35 (1) (not the section under consideration here) which then required that "[a]n application for a search warrant must be in writing and must be made, subscribed and sworn to by a public servant.” Although the testimony of the informant in Brown was not under oath or recorded, we found that it was reliable because his information "tallie[d]” with that supplied by the police officer. We, therefore, concluded that although the procedure followed was not "ideal * * * the record shows a conscientious effort to comply with constitutional and statutory requirements applicable to search warrants” (id., at 188).

The procedures followed by the police and the Magistrate here represent a far more conscientious effort to comply with the statutory requirements for securing a warrant than those outlined in Brown. Indeed, the statutory procedures were satisfied. A formal written application was sworn to by the police officer before the Town Justice and, unlike Brown, and contrary to the majority’s assertion, the fact-finding hearing established that the two informants were sworn on the record and their testimony was recorded by the Town Justice in the manner the statute requires. The sworn warrant application setting forth details of this testimony constitutes objective evidence supporting the lower court’s determination of probable cause and provides a complete and reliable basis for review. It stands in marked contrast to the record before this court in Brown which consisted only of the Judge’s conclusory statement that the informant’s story "tallied” with the police officer’s. Here, the court has before it the actual facts testified to by the informants which provided the basis for probable cause.

Finally, the majority’s decision is regrettable in light of our prior precedents establishing a strong preference for search warrants (see, People v Hanlon, 36 NY2d 549, 558-559; United States v Ventresca, 380 US 102, 108-109). The police and the Magistrate in this case were not unaware of the statutory and constitutional requirements for warrants and they neither ignored nor sought to evade them. Quite the contrary. They endeavored to satisfy these requirements as best they could, and succeeded in doing so. Suppression of the evidence on these facts, when the actions of the police and the Magistrate satisfy the statutory requirements and are capable of review, unnecessarily frustrates the prosecution of these defendants simply because the records were accidentally lost.

Accordingly, the orders should be affirmed.

Chief Judge Wachtler and Judges Titone and Bellacosa concur with Judge Kaye; Judge Simons dissents and votes to affirm in a separate opinion in which Judges Alexander and Hancock, Jr., concur.

In each case: Order reversed and order of Monroe County Court reinstated.

       While the dissent urges that a portion of the Town Justice’s hearing testimony may be read to imply that he customarily took "verbatim” notes when he lacked recording equipment, the bulk of the testimony actually is to the effect that at least in this case, he took only a "few” notes, and there is no contrary finding. Certainly, the People — despite the fact that it was their burden to do so — did not elicit any testimony that would demonstrate otherwise.

      . "§ 690.40 — Search warrants; determination of application.
      "1. In determining an application for a search warrant the court may examine, under oath, any person whom it believes may possess pertinent information. Any such examination must be either recorded or summarized on the record by the court.”

      . The Judge testified that he believed the Taylor file was forwarded to the District Attorney’s office, pursuant to standard operating procedure for official warrant documents. Apparently this was done for precisely the reason that the majority rejects — to preserve the record for purposes of legitimate challenge to the warrant on appellate review.

      . The majority’s reference to a "few notes” is based upon the following isolated statement made in response to a prosecutor’s preliminary questioning:
      "Q. Now, sir, were there any notes or recordings made of this? '
      "A. As far as I know, there were no recordings made, and I don’t recall anyone making any notes other than the few I took myself.”
      Moreover, despite the adverse inference drawn by the majority that the notes were for the Judge’s "own edification”, clearly the notes constituted the Judge’s attempt to preserve a record for review of the application and were placed in the official file forwarded to the District Attorney’s office for that purpose.

      . Ironically, the warrant application alone even satisfies the AguilarSpinelli rule. The reliability of the informants’ evidence is established because each gave information under oath to Officer Rath upon which his warrant application was premised and the information was reliable because it was based upon personal knowledge and corroborated by the testimony of the other informant (cf., People v Wheatman, 29 NY2d 337).


text:
    Kenneth W. Gross, Appellant, v Richard Friedman, Respondent.
    Argued October 19, 1988;
    decided November 17, 1988

      APPEARANCES OF COUNSEL

      Steven M. Schapiro and Perry S. Reich for appellant.

      Barbara D. Goldberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum of that court (138 AD2d 571).

We add that the recommendation of the medical malpractice mediation panel (see, Judiciary Law § 148-a [8]) that "there is liability on the part of the defendant” does not establish a prima facie case of medical malpractice. Although such a recommendation is admissible, it remains the fact finder’s independent duty to determine, among other things, the accepted standard of medical practice, whether defendant departed from that standard and, if so, whether such departure was the proximate cause of plaintiffs injuries (see, Treyball v Clark, 65 NY2d 589). The panel’s conclusory assertion provided no basis for the jury to make such determinations and, accordingly, does not cure the deficiencies in the proof as to such matters that were identified by the Appellate Division.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone taking no part.

Order affirmed, with costs, in a memorandum.


text:
    United States Aviation Underwriters, Inc., Appellant, v United States Fire Insurance Company, Respondent.
    Argued October 11, 1988;
    decided November 17, 1988

      APPEARANCES OF COUNSEL

      Frederick D. Berkon for appellant.

      George N. Tompkins, Jr., Katherine B. Posner and Christopher Christensen for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see, Banco Ambrosiano v Artoc Bank, 62 NY2d 65; National Bank & Trust Co. v Banco De Vizcaya, 72 NY2d 1005).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Reginald Gomez, Respondent, v New York State Thruway Authority, Appellant.
    (Claim No. 69823.)
    Argued October 14, 1988;
    decided November 17, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      Michael J. Cunningham for respondent.
   OPINION OF THE COURT

Memorandum.

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

Claimant was injured when he was involved in an accident on a Thruway bridge over the Wallkill River. The accident occurred when his vehicle skidded on the icy surface of the highway, traveled up a pile of frozen snow plowed against a guardrail of the bridge and flipped over. Claimant instituted this action seeking to recover from the Authority for negligently maintaining the road and the guardrails. The Court of Claims found that defendant had negligently failed in its duty to maintain the guardrails for the purpose intended and that its failure proximately caused claimant’s injuries. It awarded him $510,000 damages and a divided Appellate Division affirmed the judgment.

The State has an obligation to provide and maintain adequate and proper barriers along its highways (see, Lattanzi v State of New York, 74 AD2d 378, affd 53 NY2d 1045) and its failure to do so may result in liability if the failure is a substantial factor in causing or aggravating a claimant’s injuries (Gutelle v City of New York, 55 NY2d 794; Stuart-Bullock v State of New York, 33 NY2d 418). Insofar as the courts below found that the Thruway had failed to fulfill this duty and that its failure was a substantial factor in producing claimant’s injuries and those findings are supported by evidence in the record, they are beyond our review.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Anne Crociata et al., Appellants, v State Tax Commission, Respondent.
    Argued October 20, 1988;
    decided November 17, 1988

      APPEARANCES OF COUNSEL

      Mindy S. Fridovich, Gerald A. Norlander and Leonard S. Clark for appellants.

      Robert Abrams, Attorney-General (Julie S. Mereson, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (134 AD2d 112).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacos a.


text:
    The People of the State of New York, Respondent, v Maximiliano Amparo, Appellant.
    Argued October 14, 1988;
    decided November 17, 1988
    APPEARANCES OF COUNSEL

      Irving Anolik for appellant.

      Denis Dillon, District Attorney (Douglas Noll and Anthony J. Girese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

The People failed to notify defense counsel, within 15 days of arraignment, of their intention to use defendant’s oral statement as evidence, and they failed to demonstrate good cause for the delay in furnishing the required notice. Accordingly, that statement was not admissible against him at trial (see, CPL 710.30; People v O’Doherty, 70 NY2d 479; People v Boughton, 70 NY2d 854; People v McMullin, 70 NY2d 855).

The exception contained in CPL 710.30 (3) — where a defendant has "moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible” — is inapplicable here. Defense counsel did not make a motion for suppression of the oral statement on the ground that it was in substance inadmissible at trial; such a motion in effect would have afforded defendant the same opportunity for a court to pass upon the admissibility of the statement as he would have had if timely notice had been given. Rather, defense counsel moved only for preclusion of the oral statement on account of late notice, which does not fall within the exception contained in CPL 710.30 (3). Nor did defendant’s pro se motion fall within the exception, for it was never before the trial court for decision.

The error in admitting defendant’s oral statement cannot be viewed as harmless. That statement was the only one made by him establishing his prior connection to the burglarized premises, and it might well have contributed to the jury’s verdict. Indeed, after the case was submitted, the jury requested a read-back of that very testimony.

We need not reach the additional issues raised by defendant.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Timothy M. Flihan, Appellant.
    Argued October 18, 1988;
    decided November 17, 1988

      APPEARANCES OF COUNSEL

      Michael A. Arcuri for appellant.

      Ronald Goldstock, Deputy Attorney-General (Steven Chananie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant by his plea of guilty forfeited any claim of transactional immunity (see, People v Taylor, 65 NY2d 1, 6; People v Sobotker, 61 NY2d 44, 48). Defendant’s remaining contentions either lack merit or are not properly before us for review.

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

Order affirmed in a memorandum.


text:
    Thomas D. Callan, Respondent, v State of New York, Appellant.
    (Claim No. 68612.)
    Argued October 18, 1988;
    decided November 17, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Martin A. Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      E. Robert Fussell for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the claim dismissed for the reasons stated in the dissenting memorandum at the Appellate Division (134 AD2d 882, 883-884). [74 NY2d 647.]

Concur: Chief Judge Wachtlek and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York, Respondent, v Brian Botshon, Appellant.
    Argued October 13, 1988;
    decided November 17, 1988

      APPEARANCES OF COUNSEL

      Herald Price Fahringer and Diarmuid White for appellant.

      Robert Abrams, Attorney-General (Julie S. Mereson, O. Peter Sherwood and Peter H. Schiff fof counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum of the Appellate Division (135 AD2d 1107).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Jewish Board of Family & Children’s Services, Inc., Appellant, v Zoning Board of Appeals of the Village of Brightwaters, Respondent.
    Argued October 11, 1988;
    decided November 17, 1988

      APPEARANCES OF COUNSEL

      Arthur Goldstein and Ronald Goldstein for appellant.

      Robert Webster Oliver for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the judgment of Supreme Court, Suffolk County, reinstated for the reasons stated in the opinion by Justice John G. McCarthy at Supreme Court (141 Misc 2d 874).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of the Arbitration between Sheila Trudeau, as President of the South Colonie Teachers’ Association, Respondent, and South Colonie Central School District, Appellant. Board of Education of the South Colonie Central School District et al., Appellants, v Thomas O’Rourke, as Former President of the South Colonie Teachers’ Association, et al., Respondents.
    Argued October 12, 1988;
    decided November 17, 1988

      APPEARANCES OF COUNSEL

      Paul J. Laudato for appellants.

      Gerard John De Wolf and Bernard F. Ashe for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Howard A. Levine at the Appellate Division (135 AD2d 150; see also, Matter of Town of Haverstraw [Rockland County Patromen’s Benevolent Assn.], 65 NY2d 677; Rochester City School Dist. v Rochester Teachers’ Assn., 41 NY2d 578).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Burns Electric Co., Inc., Respondent, v Walton Street Associates, Appellant.
    Argued October 18, 1988;
    decided November 17, 1988

      APPEARANCES OF COUNSEL

      Donald J. Kemple for appellant.

      Verne F. O'Dell for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice John F. Lawton at the Appellate Division (136 AD2d 291).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa. Taking no part: Judge Hancock, Jr.


text:
    John E. Forward et al., Individually and on Behalf of All Others Similarly Situated, Appellants, v Webster Central School District et al., Respondents.
    Submitted August 22, 1988;
    decided November 17, 1988
   Motion for leave to appeal denied. Motion for reconsideration of July 7, 1988 order dismissing appeal taken as of right denied. [See, 72 NY2d 908.]


text:
    Bronx Realty Advisory Board, Inc., et al., Appellants, v New York State Division of Housing and Community Renewal et al., Respondents.
    Submitted August 29, 1988;
    decided November 17, 1988
   Motion insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the order of Supreme Court denying the motion to renew dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Dale F. Gray, Respondent, v Patricia B. Adduci, as Commissioner of Motor Vehicles of the State of New York, Appellant.
    Argued September 9, 1988;
    decided October 27, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Daniel Smirlock, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      Melvin L. Olver and Timothy Maloney for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the Commissioner of Motor Vehicles reinstated.

Hearsay evidence can be the basis of an administrative determination (see, People ex rel. Vega v Smith, 66 NY2d 130; Matter of Lahey v Kelly, 71 NY2d 135; Matter of National Basketball Assn. v New York State Div. of Human Rights, 68 NY2d 644; see also, People ex rel. McGee v Walters, 62 NY2d 317, 322). Here, the arresting officer’s written report of petitioner’s refusal is sufficiently relevant and probative to support the findings of the Administrative Law Judge that petitioner refused to submit to the chemical test after being warned of the consequences of such refusal (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 181). The quantum of evidence before the Administrative Law Judge was substantial since a reasonable mind could accept the report as "adequate to support a conclusion or ultimate fact” (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180, supra; National Labor Relations Bd. v Remington Rand, 94 F2d 862, cert denied 304 US 576).

Petitioner’s additional claim that the Commissioner’s determination was made without cross-examination in violation of the State Administrative Procedure Act § 306 (3), and of petitioner’s right to due process is without merit. Petitioner had the right to call the officer as a witness (see, State Administrative Procedure Act § 304 [2]; Matter of Eagle v Paterson, 57 NY2d 831; Richardson v Perales, 402 US 389). Even though the Administrative Law Judge had adjourned the hearing on prior occasions due to the absence of the police officer, this inconvenience cannot be determinative as a matter of law. Petitioner always had it within his power to subpoena the officer at any time. Even after the Administrative Law Judge decided to introduce the written report on his own motion and proceed with the hearing, petitioner’s sole objection voiced was on hearsay grounds. He never claimed on the record before the Administrative Law Judge who was in the best position to afford him a remedy, that he had been misled, prejudiced or biased by the Judge’s actions. Indeed, petitioner could have sought an adjournment to subpoena the officer. That he chose not to, was a tactical decision, which is not dispositive of the outcome.

Kaye, J.

(dissenting). In a license revocation proceeding, a hearing was scheduled to take place on December 14, 1984 before an Administrative Law Judge (AU) to determine whether the arresting officer had reasonable grounds to believe that petitioner was operating a motor vehicle in violation of Vehicle and Traffic Law § 1192, and whether he actually refused to submit to a chemical test to determine blood alcohol content (Vehicle and Traffic Law § 1194). Without excuse or explanation, the officer made no appearance. The AU denied petitioner’s dismissal motion and adjourned the proceeding without date. Petitioner was then summoned to appear for the adjourned hearing on August 15, 1985. Again the officer without excuse or explanation failed to appear, again petitioner’s motion to dismiss was denied, and again the AU adjourned the proceeding. However, the AU announced, and noted on his disposition sheet, that the appear anee of the arresting officer would be required. But on the next adjourned hearing date — September 24, 1985 — the officer again failed to appear without excuse or explanation. Petitioner’s motion to dismiss again was denied. This time, however, the ALJ proceeded to open the hearing and introduce into evidence, on his own motion and over petitioner’s objection, the report of refusal to submit to chemical test — a one-page, undated, preprinted form apparently completed by the arresting officer. The form set forth the alleged "reasonable grounds” of the indicated charges and that, after appropriate warning, petitioner had refused to submit to a breath test for alcohol. The AU then adopted as his findings all of the allegations of the report, and he ordered petitioner’s license revoked.

The court now overturns the Appellate Division’s eminently sensible conclusion that petitioner’s rights were violated. I cannot agree that reversal is warranted, either on these particular facts or on the broader underlying principle, and therefore respectfully dissent.

The various hearing adjournments on account of the police officer’s absence, on this record, plainly resulted in more than mere "inconvenience”. (Majority mem, at 743.) As the Appellate Division recognized, petitioner "suffered a serious loss without any opportunity to confront or cross-examine his accusers and without any showing of an undue burden on the State to produce the arresting officer or of good cause to dispense with the need for confrontation.” (132 AD2d 943, 944.) In light of the course of conduct here, it was improper and unfair for the AU, after the officer’s third unexplained nonappearance, simply to admit the report and render a decision, without affording petitioner an opportunity to subpoena the officer.

That the rules of procedure and evidence may be relaxed in administrative proceedings should not mean that we will countenance a course of conduct by the State that blindsides its citizens. If the State is to have the benefit of less rigorous rules, it ought not to be heard to rely on technical arguments about petitioner’s hypothetical ability to subpoena the officer. It is obvious that both petitioner and the AU reasonably believed that it was the officer’s duty to appear to testify about the arrest he had made, and they both expected him to do so. I would therefore affirm the Appellate Division order on the narrow ground presented by the facts of this case, and go no further.

But I have a more profound disagreement with the court’s broad holding, which has real consequence in motor vehicle license suspension and revocation proceedings. No one could question the importance of the privilege to drive in today’s society (see, Matter of Rosenthal v Hartnett, 36 NY2d 269, 275 [Wachtler, J., dissenting]).

It is plain from the documents in this record that the Department of Motor Vehicles expects the arresting officer to be present at its administrative hearings in order to substantiate the written report and represent the State in prosecuting the case, thus permitting the AU to act as impartial arbiter. The notice of temporary suspension, for example, in bold type, notifies both the motorist and the arresting officer "that you are required to appear in person for a hearing * * * Officer should bring this notice to hearing.” The other forms in the record similarly support this administrative scheme, which is further confirmed by the July 1980 Report of the New York State Bar Association Task Force on Administrative Adjudication (id., at 25). After the majority’s acceptance of the unsubstantiated police officer’s report as sole support for revocation of petitioner’s license — even on this factual record of unfairness arising out of the repeated adjournments — obviously it is no longer necessary for the police officer to appear in such proceedings in order for the State to establish its case. The ALJ can act both as prosecutor and Judge in every case.

The State’s insistence that petitioner had an opportunity to subpoena the officer under State Administrative Procedure Act § 304 (2), and should therefore suffer the consequences of his own failure to do so, ignores the even more fundamental proposition that it is the State’s burden to prove its case against petitioner. While convenience and speed are valuable concomitants of administrative adjudications, there is a limit to even these virtues.

The Appellate Division was right both in fact and in principle, and I therefore would affirm its order.

Judges Simons, Alexander, Titone and Bellacosa concur in memorandum; Judge Kaye dissents and votes to affirm in an opinion in which Chief Judge Wachtler and Judge Hancock, Jr., concur.

Judgment reversed, etc.


text:
    In the Matter of William R. Biersack.
    Decided November 18, 1988
   OPINION OF THE COURT

On consideration of the termination of this court’s March 25, 1988 suspension of the Honorable William R. Biersack from his office of Justice of the Fishkill Village Court, Dutchess County, it is determined that the suspension is terminated.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Edna Androvette, Appellant, v Katherine B. Treadwell, Also Known as Katherine Baron, Respondent.
    Argued October 11, 1988;
    decided November 22, 1988

      APPEARANCES OF COUNSEL

      John B. Cameron for appellant.

      Norman J. Mordkofsky for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the judgment of Supreme Court reinstated.

It is undisputed that the decedent signed a group insurance enrollment and record card in 1978, designating plaintiff (his wife) as beneficiary. At decedent’s request, an employee in the office of the Uniformed Firefighters’ Association, the policyholder, later changed the card by whiting out plaintiff’s name and writing defendant’s name in its place. Decedent did not sign the card at the time this change was made.

Although the lower courts found that this change was made at decedent’s direction and reflected his intent, the lack of a contemporaneous signature by decedent indicating his assent renders the change of beneficiary ineffective under the plain terms of EPTL 13-3.2 (d). The statute plainly requires that the designation of a beneficiary under a group life insurance policy "must be made in writing and signed by the person making the designation” (see, Mohawk Airlines v Peach, 61 AD2d 346). Decedent’s signature, rendered when he originally designated plaintiff as beneficiary, cannot validate his later attempt to change the beneficiary.

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

Order reversed, with costs, and judgment of Supreme Court, Orange County, reinstated in a memorandum.


text:
    In the Matter of William H. Intemann, Jr.
    Decided November 22, 1988
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable William H. Intemann, Jr., is suspended, with pay, effective immediately, from his office of Judge of County Court, Family Court and Surrogate’s Court, Hamilton County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Jane Doe et al., Respondents, v David Axelrod, as Commissioner of Health of the State of New York, Appellant.
    Argued October 19, 1988;
    decided November 22, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Darren O’Connor, O. Peter Sherwood and Andrea Green of counsel), for appellant.

      Sheldon D. Camhy and George G. Nelson for respondents.

      Leslie Salzman, Marilyn A. Kneeland and Herbert Semmel for Public Health Association of New York City and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, by reversing so much of that order as affirmed the Supreme Court order granting plaintiffs a preliminary injunction; the certified question should be answered in the negative.

The decision to grant or deny provisional relief, which requires the court to weigh a variety of factors, is a matter ordinarily committed to the sound discretion of the lower courts. Our power to review such decisions is thus limited to determining whether the lower courts’ discretionary powers were exceeded or, as a matter of law, abused (James v Board of Educ., 42 NY2d 357, 363-364). In this case, there was an abuse of discretion, and, as a consequence, reversal is required.

A preliminary injunction may be granted under CPLR article 63 when the party seeking such relief demonstrates: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party’s favor (Grant Co. v Srogi, 52 NY2d 496, 517). Here, plaintiffs can succeed on the merits of their claim only if they show either that in promulgating the challenged regulations (10 NYCRR 80.67) respondent Commissioner acted outside of the authority constitutionally delegated to him under the Public Health Law (compare, Boreali v Axelrod, 71 NY2d 1, with Matter of Levine v Whalen, 39 NY2d 510; and Chiropractic Assn. v Hilleboe, 12 NY2d 109) or that the regulation was " 'so lacking in reason for its promulgation that it is essentially arbitrary’ ” (Ostrer v Schenck, 41 NY2d 782, 786). On this record, plaintiffs have not demonstrated that they can make such a showing. Thus, the first prong of the test for preliminary injunctive relief — likelihood of success on the merits— was not satisfied, and, as a matter of law, a preliminary injunction should not have been issued.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur; Chief Judge Wachtler taking no part.

Order modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed. Certified question answered in the negative.

       At this early stage in the litigation, the record consists only of plaintiffs’ complaint and the papers submitted in connection with their motion for a preliminary injunction. Respondent Commissioner has not yet served an answer or made a motion to dismiss under CPLR 3211 or 3212.


text:
    The People of the State of New York, Respondent, v Bernhard Goetz, Appellant.
    Argued October 17, 1988;
    decided November 22, 1988

      APPEARANCES OF COUNSEL

      Mark M. Baker and Barry Ivan Slotnick for appellant.

      Robert M. Morgenthau, District Attorney (Gregory L. Waples and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court did not err in instructing the jury that, if it found that the People had proved each of the elements of the crime beyond a reasonable doubt, it "must” find defendant guilty. It is well settled that the jury’s function is to apply the legal definition of the crime to the evidence and to convict if it is satisfied that each of the elements of the crime has been established beyond a reasonable doubt (People v Mussenden, 308 NY 558, 562; see, Sparf v United States, 156 US 51; Duffy v People, 26 NY 588, 592-593). While there is nothing to prevent a petit jury from acquitting although finding that the prosecution has proven its case, this so-called "mercy-dispensing power”, as defendant concedes, is not a legally sanctioned function of the jury and should not be encouraged by the court (People v Mussenden, supra, at 562-563; see, People v Boettcher, 69 NY2d 174, 180; People v Sullivan, 68 NY2d 495, 500-501). Contrary to defendant’s assertion, the jury instruction does not amount to a directed verdict because it does not encroach upon the jury’s exclusive fact-finding prerogative by removing from its consideration some element of the crime or of a defense to it (cf., United States v Hayward, 420 F2d 142 [DC Cir 1969]; Brascomb v State, 261 Ark 614, 550 SW2d 450 [1977]).

There is no merit in defendant’s argument that the sentencing court abused its discretion, as a matter of law, or that it failed to exercise discretion in determining that a one-year definite sentence would not be "unduly harsh” (see, Penal Law § 70.02 [2] [c]).

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

Order affirmed in a memorandum.


text:
    Bruce Wittenberg et al., Appellants, v City of New York et al., Respondents.
    Argued October 12, 1988;
    decided November 22, 1988

      APPEARANCES OF COUNSEL

      Kenneth K. Fisher and Michael J. Vollbrecht for appellants.

      Peter L. Zimroth, Corporation Counsel (Dana Martine Robbins and Larry A. Sonnenshein of counsel), for respondents.
   OPINION OF THE COURT

Appeal taken as of right dismissed upon the ground that no substantial constitutional question is directly involved. Plaintiffs’ application for leave to appeal granted. Order affirmed, with costs, for reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (135 AD2d 132; see also, Matter of Replan Dev. v Department of Hous. Preservation & Dev., 70 NY2d 451).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York ex rel. Joan E. Flowers, on Behalf of Anthony Adams, Appellant, v Richard Koehler, as Commissioner of the Department of Correction, Respondent.
    Decided November 22, 1988
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, as moot.


text:
    In the Matter of Daniel W. Cirella, Respondent, v Daniel W. Joy, as Commissioner of the Office of Rent and Housing Maintenance, Rent Control Division, Respondent, and Marjorie Hoog et al., Appellants.
    Submitted October 11, 1988;
    decided November 22, 1988
   Motion to clarify opinion and amend remittitur denied. [See, 69 NY2d 973.]


text:
    In the Matter of State of New York, by Robert Abrams, as Attorney-General of the State of New York, Respondent, v Ford Motor Company, Appellant.
    Submitted August 22, 1988;
    decided November 22, 1988
   Motion for leave to appeal dismissed and, on the court’s own motion, appeal from the April 11, 1988 Appellate Division order dismissed, without costs, each upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution. On the court’s own motion, appeal taken from the September 6, 1988 Supreme Court judgment dismissed, without costs, upon the ground that it does not lie as of right because the April 11, 1988 Appellate Division order sought to be reviewed does not directly involve a substantial constitutional question (CPLR 5601 [b] [1]; [d]).


text:
    Theresa O’Keeffe, Individually and as Administratrix of the Estate of David O’Keeffe, Deceased, Respondent, v State of New York, Appellant. Theresa O’Keeffe, Individually and as Administratrix of the Estate of Thomas J. O’Keeffe, Deceased, Respondent, v State of New York, Appellant. Theresa O’Keeffe, Individually and as Administratrix of the Estate of Mark O’Keeffe, Deceased, Respondent, v State of New York, Appellant.
    (Claim No. 60112.)
    (Claim No. 60113.)
    (Claim No. 60114.)
    Submitted August 15, 29, 1988;
    decided November 22, 1988
   Motion to dismiss the appeal granted and appeal dismissed, without costs, upon the ground that the prior nonfinal Appellate Division order does not necessarily affect the final judgment as required by CPLR 5601 (d) because the sole issue decided by that prior nonfinal order which would have limited the issues on retrial was conceded by appellant.

Motion for leave to appeal denied.

Judge Hancock, Jr., taking no part.


text:
    Gerald White et al., Appellants, v Wesley E. Leonard, Respondent, et al., Defendant.
    Submitted August 15, 1988;
    decided November 22, 1988
   Motion to dismiss the appeal taken as of right granted and the appeal dismissed, with costs and $20 costs of motion upon the ground that it does not lie as of right from the unanimous Appellate Division order absent the direct involvement of a substantial constitutional question (CPLR 5601). Cross motion for leave to appeal denied.


text:
    The People of the State of New York, Respondent, v Craig J. Schultz, Appellant. The People of the State of New York, Respondent, v Wayne Sterling, Appellant.
    Argued October 13, 1988;
    decided November 29, 1988
    APPEARANCES OF COUNSEL

      David I. Goldstein for Craig Schultz, appellant.

      Francis J. Raso and Thomas C. Yatto for Wayne Sterling, appellant.

      Kenneth Gribetz, District Attorney (Sondra S. Holt of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

In these cases defendants pled guilty based upon a representation by the County Court Judge that a specific sentence would likely be imposed. When defendants appeared for sentencing, however, the County Court Judge indicated that, upon further consideration of the nature of the crime, he could not honor his earlier sentence offer, and that, instead, a lengthier sentence was appropriate. Defendants were then accorded the opportunity to withdraw their pleas, and were granted more than a week’s adjournment so that they could consider their options. Defendants do not argue here that they detrimentally relied upon the original sentencing agreement; instead defendants maintain that specific performance of the sentence agreement is required because no facts came to light subsequent to the original plea agreement, which rendered that agreement improvident.

In People v McConnell (49 NY2d 340, 347) the court stated that "[a] defendant who has not * * * changed his position will generally be entitled to no more than the vacation of his plea if the court concludes that it cannot adhere to the promise given, for the simple reason that vacating the plea restores him to the same position he was in before the plea was taken”. The court, therefore, retains discretion in fixing an appropriate sentence up until the time of the sentencing (see, People v Farrar, 52 NY2d 302, 305-306). Of course, the reasons for departing from the sentencing agreement must be placed upon the record to ensure effective appellate review of the sentencing court’s exercise of discretion (see, People v Danny G., 61 NY2d 169, 174).

In the present cases detrimental reliance is not argued, defendants were afforded ample opportunity to withdraw their pleas, and the County Court sufficiently demonstrated in the record that proper sentencing criteria counseled imposition of a different sanction than that agreed to originally. Consequently, here it cannot be said that the County Court abused its discretion as a matter of law, and thus defendants are not entitled to specific performance of the original sentencing representations.

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

In each case: Order affirmed in a memorandum.


author: Simons, J.

text:
    Salvatore D. Rao, Respondent, v David Gunn, as President of the New York City Transit Authority, et al., Appellants, et al., Respondent.
    Argued October 20, 1988;
    decided November 29, 1988
    APPEARANCES OF COUNSEL

      Kenneth Howard Schiffrin, Albert C. Cosenza and George S. Grupsmith for appellants.

      Kathleen Doyle and Stuart Salles for Salvatore D. Rao, respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the determination of the New York City Transit Authority reinstated.

Petitioner, a permanent civil service employee of the New York City Transit Authority, was properly notified, pursuant to Civil Service Law § 75 (2), that the Transit Authority was initiating a disciplinary proceeding against him. He was unable to attend the scheduled hearing, however, because he was in the custody of the Department of Mental Hygiene, having been found not responsible for the stabbing death of his wife by reason of mental disease or defect (see, CPL 330.10, 330.20). We conclude that the Hearing Officer, after granting three adjournments, did not err in proceeding with the hearing in petitioner’s absence when it became clear that petitioner would be unable to attend in the foreseeable future.

The disciplinary charges were based on the same events that led to petitioner’s indictment, trial, verdict, and eventual involuntary commitment. His conduct, while not criminally culpable, justified both his commitment and the termination of his employment. That conduct was fully explored and was established beyond a reasonable doubt in the criminal proceeding, the transcript of which was admitted into evidence at the disciplinary hearing. Thus, petitioner had been given an opportunity to challenge the factual basis for the disciplinary charges in another forum with the fullest scope of procedural rights.

Though given the opportunity to reopen the hearing, petitioner never suggested what exculpatory evidence, if any, he might adduce if he were allowed to appear at the hearing. Nor did he make any attempt to reopen the hearing or otherwise challenge the Hearing Officer’s recommendation after he was released from in-patient treatment, but before the recommendation was approved by the Transit Authority several months later.

Our point is not, as the dissent suggests, that petitioner’s right to a hearing depends on his ability to establish an adequate defense on the merits. But "[underlying the necessity for a due process hearing is some factual dispute impacting on the employer’s right to discharge” (Matter of Economico v Village of Pelham, 50 NY2d 120, 128). The operative facts underlying the Hearing Officer’s determination — that petitioner killed his wife — have never been in dispute. Nor was there, at the relevant time, any dispute concerning petitioner’s ability to return to work. His release from in-patient treatment in December 1983, and his doctor’s opinion that he was then able to return to work could not have been asserted at the time of the hearing, in May 1982. Thus, there is in this case no hint of any benefit that could have been derived by petitioner from further delay so that he could attend the hearing in person.

On the other hand, the Transit Authority had a legitimate and strong interest in resolving petitioner’s employment status promptly (see, Matter of Economico v Village of Pelham, supra, at 126). By the time the hearing was held, petitioner had been in the custody of the Department of Mental Hygiene and unable to carry out his duties for more than 22 months. Further delay would have imposed an unreasonable burden on the Transit Authority.

The dissent, ironically, faults the Transit Authority for waiting even this long, calling the administrative inconvenience "self-imposed” (dissenting opn, at 765), and suggesting that, because the agency delayed to some degree, it was obligated to wait indefinitely. In our view, however, the Transit Authority’s willingness to endure some delay, quite possibly in an effort to accommodate petitioner’s situation, should not preclude the argument that further delay would result in undue hardship. A contrary rule would only encourage precipitous action, rather than caution and accommodation.

In short, the risk of error under the procedures used was minimal, and the additional procedural protection sought by petitioner would have imposed substantial administrative and fiscal burdens on the Transit Authority with no apparent countervailing benefit to petitioner (see, Mathews v Eldridge, 424 US 319, 335). Under these circumstances, therefore, petitioner’s due process rights were not violated.

Simons, J.

(dissenting). The narrow issue in this appeal is whether an agency of the State violates constitutional guarantees of due process of law when it takes a citizen’s property without hearing him, knowing he wishes to be heard but cannot, because another agency of the State prevents him from appearing. The majority says it does not. I agree with the courts below that it does and, therefore, I dissent.

The facts are not in dispute. Petitioner was indicted and tried for manslaughter, second degree, for the October 13, 1979 stabbing death of his wife. On July 23, 1980 he was acquitted by reason of mental disease or defect and committed to the care of the Commissioner of Mental Hygiene. He remained hospitalized until December 2, 1983. At the time of the homicide, petitioner was employed as a token clerk by the Transit Authority with permanent status. As such he had a property right to his employment which could not be taken from him without due process of law (Matter of Economico v Village of Pelham, 50 NY2d 120, 125; Matter of Simpson v Wolansky, 38 NY2d 391; see, Board of Regents v Roth, 408 US 564). Thus, on January 5, 1982, some 18 months after the conclusion of the criminal trial, the Transit Authority instituted disciplinary proceedings to terminate his employment by mailing notice of the charges to petitioner at South Beach Psychiatric Center, where he was confined, and ordering him to appear at a hearing to be held on January 21, 1982. Petitioner responded that the Center would not permit him to leave but that his father, who was not a lawyer, would appear on his behalf. The Authority also sent a notice to the hospital and petitioner’s physician advised it that petitioner could not leave the hospital grounds. The hearing was adjourned three times, until May 27, 1982 when the Hearing Officer proceeded with the hearing in petitioner’s absence. No witnesses were called; instead, a copy of the transcript of the criminal trial was received in evidence and the authority rested. The Hearing Officer stated that he would hold the record open "until about June 15, 1982” in the event petitioner was released. More than two years later, in July 1984, the Authority adopted the Hearing Officer’s recommendation and removed petitioner from his job. Petitioner claims that termination without giving him an opportunity to be heard violated his constitutional rights to due process of law.

Due process is not a static concept and its extent varies depending on a variety of considerations. Generally, three distinct factors are considered: "[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens the additional or substitute procedural requirements would entail” (Mathews v Eldridge, 424 US 319, 335; see also, Arnett v Kennedy, 416 US 134). The Legislature has determined, by enacting Civil Service Law §75, that these considerations entitle permanent public employees to be heard before they are disciplined or their employment terminated. The procedure set forth in the statute requires that employees be given notice of the charges and an opportunity to contest them, the power to summon witnesses in their behalf and the right to be assisted by counsel or an union representative at the disciplinary hearing (Civil Service Law § 75 [2]).

The majority does not deny petitioner was entitled to be heard, but it finds appropriate the procedure the Authority followed in this case. Applying the Mathews factors on an ad hoc basis, it holds respondents cannot be faulted because the Authority adjourned the hearing three times, it was not clear petitioner would be able to appear in the foreseeable future and because it held the Hearing Officer's recommendation for three months so petitioner could move to reopen upon his release. More importantly, however, addressing the second and third Mathews factors, it finds the case for petitioner’s removal conclusive because the facts had been established at the criminal trial, and petitioner offered no exculpatory evidence to contradict those facts, and the burden on the agency by further delay justified its actions. I do not find these reasons persuasive.

A due process right to be heard requires an opportunity to be heard "at a meaningful time and in a meaningful manner” (Armstrong v Manzo, 380 US 545, 552). The opportunity provided petitioner was not "meaningful” within the spirit of the Constitution. Indeed, the Authority made little effort to hear his side of the case although it was fully informed of petitioner’s desire to attend and his inability to do so. Petitioner responded to the notice of hearing by promptly writing the Authority, stating his desire to appear and noting that he was unable to do so. He arranged for his father to attend the hearing, and his father told the Hearing Officer that petitioner desired to appear and present his side of the story. Petitioner continued to preserve this position by insuring that someone appeared on his behalf on each adjourned date. His good faith in requesting further adjournments, based on his doctors’ advice that he would soon be able to participate, is unquestioned (cf., Gerber v New York City Hous. Auth., 42 NY2d 162).

Knowing of pétitioner’s concern and of his confinement the Authority nevertheless decided to proceed in petitioner’s absence without advising him that further adjournments would not be granted, requesting that he submit a written statement in response or appear by counsel. Nor did the Authority explore alternative means to protect petitioner’s rights such as inquiring whether South Beach Psychiatric Center would permit petitioner to leave the hospital, under escort, for the limited purpose of attending the hearing or holding the hearing at the hospital — located in the same city as the Authority’s office — as was done in Matter of Sims v Monaghan (307 NY 637). Manifestly, holding the hearing at South Beach would not have inconvenienced any witnesses, because there were none. The only evidence the Authority considered was the transcript of petitioner’s criminal trial. The Authority’s position is no better because it left the record open for three weeks "in the event [petitioner] or his father wish[ed] to reopen the case”. Petitioner was not notified of this, and apparently his father was not either. Under those circumstances, I cannot agree with the majority that the procedure followed by the Authority was appropriate.

Nor do I agree with the contention that petitioner’s presence at the hearing was unnecessary because misconduct had been conclusively established at the criminal trial. Before acting, the Authority had the burden of establishing two things — whether petitioner was chargeable with misconduct and, if so, the appropriate penalty (see, Civil Service Law § 75). Although it could have based a determination of misconduct on the findings of the criminal court (see, Matter of Brockman v Skidmore, 39 NY2d 1045; see also, Villanueva v Simpson, 69 NY2d 1034), it was not bound by them. It clearly had discretion to find petitioner not responsible and to impose a lesser sanction than removal. But whether it chose to do so or not, petitioner was entitled to be heard before these questions were resolved so that he could attempt to show that he was not responsible for killing his wife, as the criminal jury had found, that any sickness or disability he suffered had been removed and that he was, as his doctors’ attested, able to return to work. The result after hearing him may have been the same but we held long ago — and that holding has never been in question until today — that when one claims he has been denied due process of law, he does not first have to prove that he has a meritorious defense (Matter of Hecht v Monaghan, 307 NY 461). We noted there that " '[t]o one who protests against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits’ ” (id., at 470, quoting from Coe v Armour Fertilizer Works, 237 US 413, 424). That view was repeated in our statement in Matter of Papasidero v Fasano (19 NY2d 440, 442) that "[statutes requiring hearings in civil service removals do not depend for their operative effect on good grounds shown to resist the removal. They are operative without regard to the merits; and since the statute here clearly entitled petitioner to a hearing, he should have been given one before he was removed” (see also, Matter of Fusco v Moses, 200 Misc 196, affd 279 App Div 737, affd 304 NY 424). Nor is it of any consequence that a court, on review, would have deferred to the Authority’s findings and sanction in this case if imposed after a hearing. As we have noted in a similar context, it is precisely because administrative determinations are subject to judicial deference that "it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded” (Matter of Goldfinger v Lisker, 68 NY2d 225, 230 [arbitration]).

Finally, the Authority’s action cannot be justified by the burden or inconvenience imposed on it. I agree that public agencies are constrained to move expeditiously, to maintain staff and avoid unnecessary expense. But the record makes clear that any burden resulting from delay in this case was self-imposed. Even if the Authority chose to await the outcome of the criminal proceedings, it could have scheduled the hearing as soon as petitioner’s trial was over. It did not do so but waited an additional 18 months before commencing this proceeding and then over two years more after the Hearing Officer closed the hearing and issued his recommendation of dismissal before terminating petitioner’s employment. Under the circumstances, the Authority’s claim that it could not wait beyond May 27 to hear petitioner’s side of the story, particularly when it failed to take any effort to accommodate petitioner’s known difficulties, is entitled to little consideration.

There is no question of what constitutional due process, as implemented by the statute, required in this case and petitioner was denied it. Any governmental violation of a citizen’s due process rights is inexcusable but the violation is intolerable when one agency of government, knowing the citizen’s predicament, proceeds by default and strips him of his property while another agency of government confines him so that he cannot protect his rights. Accordingly, I dissent and vote to affirm.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur in memorandum; Judge Simons dissents and votes to affirm in an opinion.

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.

       Although the notice originally sent petitioner did notify him of the right to respond to the charges in writing, it also "ordered petitioner to attend the hearing under penalty of insubordination”. The inference is unmistakable: his absence would severely prejudice his case.