text:
    In the Matter of Supreme Merchandise Co., Inc., Appellant, v Chemical Bank, Respondent.
    Submitted September 10,1987;
    decided October 15, 1987

      POINTS OF COUNSEL

      William E. Seeger for appellant.

      Robert T. Stephenson and Kenneth J. Kelly for respondent.
   OPINION OF THE COURT

Kaye, J.

A beneficiary’s interest in an executory negotiable letter of credit supporting an international sale of goods is not property of the beneficiary for purposes of attachment by a party in unrelated litigation.

In connection with a sale of disposable lighters by Iwahori Kinzoku Co. (Kinzoku), a Japanese company, to Supreme Importers and D. M. Sales Corp. of New York City, on March 1, 1984, Chemical Bank issued an irrevocable letter of credit, expiring March 30, 1984, in the amount of $111,840, identifying Kinzoku as the beneficiary. The document provided that drafts drawn against it could be negotiated by any bank, which could then present the drafts together with the conforming documents to Chemical for acceptance and payment.

In an action for a money judgment against Kinzoku wholly unrelated to the letter of credit or the sale underlying it, petitioner served Chemical with an order attaching all debts and property of Kinzoku. Upon a search of its records, Chemical found no accounts in the name of Kinzoku, and so advised both the Sheriff and petitioner’s counsel. Chemical thereafter discovered the letter of credit, informed petitioner, and in late May was served with a second order of attachment. Both orders of attachment were confirmed by Special Term.

Meanwhile, on April 12, 1984, Fuji Bank Ltd. (Fuji) in Japan negotiated a draft in the sum of $55,000 for Kinzoku, notwithstanding certain discrepancies between the documents presented and the documents required by the letter of credit, and paid Kinzoku. When it made payment, according to Fuji, it had no knowledge of the attachment or dispute between Kinzoku and petitioner. Fuji the following week presented Chemical with the draft and documents; Chemical obtained a waiver of the discrepancies from the account party and, on April 27, accepted the draft, thereby engaging to make payment within a 30-day period. Chemical paid Fuji $55,000 on May 29, 1984.

On April 5, 1984, Dai-ichi Kangyo Bank Ltd. (Dai-ichi) presented Chemical with a second draft it had negotiated for Kinzoku in Japan, in the sum of $56,840 together with relevant documentation. Dai-ichi had before that time paid the full draft to its customer and claims it had no knowledge of the attachment or dispute with petitioner. Again the documents contained discrepancies from the terms of the letter of credit which were waived by the account party. On April 17, Chemical accepted the draft, thereby engaging to pay it within a 30-day period. Actual payment was not made until after service of the second attachment order. Prior to the two presentments, Chemical apparently had no knowledge of the interest of the negotiating banks.

Appellant commenced this proceeding against Chemical pursuant to CPLR 6214 (d) to compel the delivery of funds representing the letter of credit, alleging that both attachment orders were applicable to the proceeds of the letter of credit. Chemical responded that the second order of attachment had been served too late because it had already accepted both drafts, and that the first order was ineffective because attachment cannot reach the proceeds of executory letters of credit.

Special Term, addressing only the first order of attachment, concluded that the beneficiary’s interest constituted attachable property and granted the petition to the extent of directing Chemical to deliver to the Sheriff the amount of the drafts plus interest. The Appellate Division reversed, holding as to the second order of attachment, that there was nothing attachable at the time it was served because Chemical had by then accepted the drafts and thereby become unconditionally obligated to pay them upon maturity. With respect to the first order of attachment, however, the court ruled that CPLR 5201 (b) and 6202 could not be read "as authorizing creditors to reach a debtor’s contingent interest as property where the effort to do so will often preclude the maturing of that interest, is likely on a repetitive basis to impair the rights of third parties, and is certain to raise a disquieting doubt as to the capacity of letters of credit to discharge their critically important function in international transactions.” (117 AD2d 424, 431.) The Appellate Division granted leave to appeal to this court (126 AD2d 994). We now affirm.

As to the second order of attachment, we agree with the court below that the issue has already been decisively determined against petitioner. In First Commercial Bank v Gotham Originals (64 NY2d 287), we recognized that an issuing bank’s obligation to pay in a commercial letter of credit transaction is fixed upon presentation of drafts and the documents specified in the letter of credit. Once the issuer accepts the drafts it becomes "directly, primarily and unconditionally obligated to the holder” and any order subsequently served on the issuer seeking to enjoin payment is too late (id., at 297). Here, Chemical accepted the drafts under the credit, and the negotiating banks held the acceptances, before service of the second order of attachment. There having been nothing to attach at the time of service of the attachment order (CPLR 6214 [b]), Chemical plainly did not violate that order when it made payment to the negotiating banks rather than directing the funds to the Sheriff.

The issues with respect to effectiveness of the first order of attachment, however, cannot be so readily resolved. The first order was served before Fuji or Dai-ichi negotiated the drafts for value and presented them to Chemical for payment. The letter of credit was therefore executory at the time the attachment order was served upon Chemical. If an order of attachment can reach a beneficiary’s interest in an executory letter of credit, Chemical would have violated that order when it accepted the drafts and paid the negotiating banks rather than turning over the proceeds to the Sheriff.

While letters of credit have for centuries been in wide use, this issue has not arisen often in the case law. It has been the subject of two Federal court decisions — Matter of Diakan Love v Al-Haddad Bros. Enters. (584 F Supp 782) and Sisalcords Do Brazil v Fiacao Brasileira De Sisal (450 F2d 419, cert denied 406 US 919), both denying attachment — but has not previously been passed on by this court.

CPLR 6214 (d) provides that a levy by service of an order of attachment on a person other than defendant "is effective only if, at the time of service, such person owes a debt to the defendant or such person is in the possession or custody of property in which such person knows or has reason to believe the defendant has an interest”. The core issue here is whether Kinzoku’s interest in the letter of credit constituted a "debt” or "property” within the purview of the statute.

"Any debt or property against which a money judgment may be enforced as provided in section 5201 is subject to attachment.” (CPLR 6202.) The statute requires that a "debt” for this purpose be a fixed obligation (CPLR 5201 [a]). If a debt, Kinzoku’s interest was plainly contingent and would not be subject to attachment under CPLR 5201 (a); indeed, petitioner does not contend that the interest was attachable as a debt. Petitioner focuses on the further provision that "[a] money judgment may be enforced against any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested.” (CPLR 5201 [b].) The word "property” is undefined. To say — as petitioner does — that Kinzoku’s interest in the letter was assignable and is therefore attachable property begs the question whether the interest is "property” in the first instance. We therefore turn to the case law construing the statutory term "property.”

In ABKCO Indus. v Apple Films (39 NY2d 670, 673), this court considered whether a contract right to net profits from future promotion of the Beatles film "Let It Be” was "property” within CPLR 5201 (b), so as to support an attachment for purposes of securing jurisdiction. We rejected the argument that the debtor’s contract right was too contingent because it might have no value, and held that the interest was "property” notwithstanding the uncertainties affecting its actual ultimate value. The "fact of value or lack of it”, we concluded, "has no legal effect on the validity of the attachment”. (39 NY2d, supra, at 675.) Dispositive instead is whether such an interest has potential economic value to the creditor. The right to receive profits from the Beatles film was deemed worthy of pursuit by the creditor, was assignable, and hence was attachable.

Petitioner urges that because Kinzoku’s interest could be assigned, ABKCO dictates the invariable conclusion that it is attachable property. We disagree. Such a mechanical application of ABKCO to all questions concerning attachable interests not only would swallow up CPLR 5201 (a) in its entirety but also would require us to blind ourselves in every instance to the nature of the interest involved. We determine, therefore, that the mere assignability of Kinzoku’s interest does not warrant the conclusion that it is "property” for purposes of CPLR 5201 (b), and that in the circumstances the interest is not subject to attachment.

A guiding principle in our analysis is that, while CPLR 5201 is obviously intended to have broad reach, still the Legislature expressly put beyond the grasp of the statute the general category of contingent debts, "to preclude a levy against contingent obligations not certain to ripen into something real”. (Siegel, NY Prac § 323, at 389; see also, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5201:5, at 53-54.)

There is a different, and in a relevant sense even greater, contingency in the beneficiary’s interest here than in ABKCO. A letter of credit "is an executory contract that conditions performance of the issuer’s obligation (payment) upon performance by the beneficiary (delivery of specified documents).” (Harfield, Letters of Credit, at 79 [ALI-ABA Uniform Commercial Code Practice Handbook 1979] [Letters of Credit].) In the absence of compliance with the terms and conditions of a letter of credit, the issuing bank owes nothing to the beneficiary. Whereas the debtor’s interest in ABKCO was contingent solely as to value, which depended on events beyond its own control, Kinzoku’s interest is dependent upon its own future performance. Before payment would be due, Kinzoku would have to perform by timely shipment of the goods, compliance with the terms of the credit, and presentation of conforming documents. Given that a beneficiary of a letter of credit retains the option to defeat the interest and render it worthless, we are mindful that allowing attachment in this instance —unlike ABKCO — could serve as a disincentive to a beneficiary’s performance of the underlying contract as well as the terms of the letter of credit. While this contingency is particularly pertinent in a situation where the beneficiary is a seller of goods thousands of miles from New York, we nevertheless agree with the court below that even claims that depend on further action by the debtor may constitute "property” and that this distinction from ABKCO is not alone dispositive (see, 117 AD2d 424, 431, supra).

The more profound difference from ABKCO, however, lies in the fact that what is at issue here is Kinzoku’s interest in a negotiable letter of credit, an instrument extensively used in domestic and international trade, which because of its unique character typically implicates others than the immediate parties to the underlying transaction. The transaction before us, for example, involves not only Kinzoku and its buyer, but also the issuing bank and two negotiating banks — none of whom had any part in the dispute between petitioner and Kinzoku, yet whose interests could be affected by permitting attachment of Kinzoku’s interest in the letter of credit.

We are persuaded that, for policy reasons, the rationale of ABKCO does not extend this far, and that Kinzoku’s interest for present purposes must be considered a contingent, nonattachable "debt” under CPLR 5201 (a) rather than attachable "property” under CPLR 5201 (b). Letters of credit have been recognized "as an essential lubricant that permits the wheels of international trade to turn” (Matter of Diakan Love v AlHaddad Bros. Enters., 584 F Supp 782, 785, supra); as "indispensable to international trade” (Dolan, Letters of Credit H 3.05); and as "an invaluable tool that can be employed to facilitate an unlimited variety of transactions.” (Harfield, Letters of Credit, at 5.) "[T]he Board of Governors of the Federal Reserve System has stated that unavailability of letter of credit facilities would 'place U.S. businesses at an unnecessary competitive disadvantage in foreign markets.’ ” (Harfield, Letters of Credit, at 79, n 11.) While long known in commercial law, letters of credit have during the past decades gained acceptance in facilitating financial as well as mercantile transactions. Their peculiar value lies in the fact that by superimposing the financial strength and integrity of one party (typically a bank) on that of another (typically a seller) they add the virtual certainty that upon presentation of conforming documents payment will be made (see, Kozolchyk, Commercial Letters of Credit in the Americas § 18.04, at 394; Harfield, Bank Credits and Acceptances, at 19 [5th ed]). "Letters of credit provide a quick, economic and predictable means of financing transactions for parties not willing to deal on open accounts by permitting the seller to rely not only on the credit of the buyer but also on that of the issuing bank.” (First Commercial Bank v Gotham Originals, 64 NY2d 287, 297-298, supra.)

This peculiar utility derives from two of the fundamental principles pertaining to letters of credit. First, a letter of credit contract must be strictly construed and performed in accordance with its terms. This principle of strict construction may be illustrated by the oft-quoted statement from Equitable Trust Co. v Dawson Partners (27 Lloyd’s List L Rep 49): "There is no room for documents which are almost the same, or which will do just as well.” Second, the credit engagement is independent of the underlying contract. (See, First Commercial Bank v Gotham Originals, 64 NY2d 287, 294, supra; Laudisi v American Exch. Natl. Bank, 239 NY 234, 243; White & Summers, Uniform Commercial Code § 18-2, at 711-713 [2d ed]; Harfield, Letters of Credit, at 76; Dolan, Letters of Credit ]f 6.08, at 6-40.) "Banks issuing letters of credit deal in documents and not in goods and are not responsible for any breach of warranty or nonconformity of the goods involved in the underlying sales contract”. (United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254, 259.) Thus, adherence to the terms of the credit as set forth in the letter of credit carries with it the virtual certainty that payment will be made.

The certainty and predictability of letters of credit — and conversely, the lack of uncertainty or unpredictability — are of course important to the immediate parties, but they have an added dimension in that they induce the confidence of others, who may accept assignments or transfers or negotiate drafts for value, that so long as the terms and conditions are fulfilled the obligation to make payment will be scrupulously honored by the issuer. (See, Matter of Diakan Love v Al-Haddad Bros. Enters., 584 F Supp 782, 785, supra.) The Uniform Commercial Code itself specifies only limited circumstances when an issuer is permitted to refuse to honor a draft accompanied by facially conforming documents and a customer permitted to seek an injunction. (UCC 5-114 [2] [b]; United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254, 259, supra.) Similarly, there are few reported instances where customers have attempted to obtain analogous relief by way of attachment, and these have been viewed by commentators as threatening the foundation and utility of letters of credit by violating the independence principle (see, White & Summers, Uniform Commercial Code § 18-10, at 752-753 [2d ed]; Justice, Letters of Credit: Expectations and Frustrations — Part 2, 94 Banking LJ 493, 495; see also, Howard, Application of Compulsory Joinder, Intervention, Impleader and Attachment to Letter of Credit Litigation, 52 Fordham L Rev 957, 993).

We recognize that these situations are materially different from the case before us, but there is at least one common consideration. If an issuer’s payment is blocked by an attachment order of a plaintiff seeking to establish jurisdiction for its own unrelated dispute with the seller — thereby often embroiling the parties in a contest as to priority among creditors —it is at the cost of diminution of confidence in the certainty and integrity of letters of credit in this jurisdiction. We fully endorse the conclusion of the court below that if this attachment were upheld in the circumstances presented "it would follow in many situations that an order of attachment secured by a creditor in an effort to reach the debtor’s contingent interest would (1) cause the debtor not to take action necessary to the maturing of the claim, (2) disrupt separate contractual obligations involving unrelated parties, and (3) impair the capacity of letters of credit to discharge their important and intended functions.” (117 AD2d 424, 431, supra.)

Based on the nature of Kinzoku’s interest coupled with the policy considerations involved in negotiable letters of credit concerned with international sales transactions, we conclude that for the purposes of attachment this interest is not "property” within the meaning of CPLR 5201 (b).

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

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

Order affirmed, with costs.

       In view of the versatility of letters of credit (see, White & Summers, Uniform Commercial Code § 18-1, at 709 [2d ed]), it bears emphasis that our disposition is limited by the facts before us.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v David Burr, Appellant.
    Argued September 4, 1987;
    decided October 20, 1987

      POINTS OF COUNSEL

      Linda S. Reynolds, Rose H. Sconiers and John A. Ziegler for appellant.

      Richard J. Arcara, District Attorney (J. Michael Marion and John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Kaye, J.

In seeking to overturn his murder conviction, defendant challenges the legality of the warrantless arrest in his home, as well as the admission of physical evidence seen before — but taken from his home after — a search warrant was obtained. While we recognize that a confirmatory search may require the suppression of evidence, the record in this case supports denial of all of defendant’s challenges and affirmance of his conviction.

On Sunday, January 9, 1983, at approximately 9:45 p.m., Timothy Murray and his father appeared at the Buffalo Police Department with information about a murder Murray claimed to have witnessed. He told police that the previous evening he had been at defendant’s apartment with defendant (whom he had known for 10 years), defendant’s girlfriend and John Borek, and that in the early morning, he had seen defendant kill Borek, put Borek’s body into a manhole, and throw his clothing and a knife into a reservoir. Murray then led police to the manhole and the reservoir. A naked body was visible in the sewer, and clothing and a pair of boots were found in the reservoir. Murray and the police returned to the station where, at 11:45 p.m., Murray gave a statement.

In a full, detailed statement, which was transcribed and sworn, Murray related the following events. During an argument with Borek in defendant’s apartment, defendant hit his victim on the head with the leg of an endiable; poked him in the throat, face and chest with a four-inch brown-handled lock-blade "buck knife” that he carried in his belt; and banged his head against the kitchen radiator. Defendant then plunged the knife into Borek’s left leg saying that he wanted to watch him bleed to death. Defendant ordered Murray to tie Borek’s hands, which he did with an extension cord he found in the apartment. Defendant then led Borek out of the apartment to the railroad tracks, ordered Murray to strip him, and began stabbing him in the mouth, face, throat and body, screaming that he liked the sight of blood. Defendant jumped up and down on Borek’s chest and kicked him in the head, shouting "camón die, camón die.” Murray helped defendant put Borek into a manhole and heard defendant say, "don’t forget I killed you and I made one of your friends watch.” Defendant threw Borek’s clothes and the knife into a nearby reservoir and took Murray back to defendant’s apartment, where he warned Murray to keep his mouth shut or he would kill him. Defendant placed the clothes he was wearing into a garbage bag in his bedroom closet, dressed, and told Murray that "he was going to Houston, Texas and he would keep in touch with [him].” That evening Murray reported the incident to the police.

Between midnight Sunday and one o’clock Monday morning, Leo Donovan, homicide chief — who had been at the scene when the body was discovered — directed Police Detective Edwin Gorski to arrest defendant at his apartment. While two officers watched the building entrance, Gorski and another detective knocked on defendant’s door and identified themselves. Although the police could hear movement inside, no one responded. With the aid of the fire department, the police opened the apartment door as well as the door to defendant’s bedroom.

While in the apartment looking for defendant, Gorski noticed a jacket which appeared to be bloodstained. Defendant meanwhile was found hiding under the bed and, as the officers pulled him to his feet, he shouted, "I didn’t kill him, Timothy Murray did.” The officers then handcuffed defendant to a chair in the kitchen. During questioning in the kitchen, Gorski observed electrical cords. (Indeed, Gorski testified that all of the items later taken pursuant to warrant had been seen by him in the apartment during the period defendant was handcuffed in the chair.)

Shortly after the arrest, Chief Donovan arrived at the apartment. He summoned an evidence squad, directing them to pick up items that might be evidence and photograph the entire apartment. As Chief Donovan testified in the suppression hearing, "I don’t see anything wrong with looking around in a place where we believe a crime was committed.” After defendant had been taken to the police station, the police remained in the apartment until about 3:00 a.m., securing the door when they left.

Later that morning Chief Donovan directed Detective Delano to read Murray’s statement and obtain a search warrant. Detective Delano testified that based only on that statement he prepared an affidavit, appending the Murray statement to it. After obtaining a warrant, Detective Delano and two detectives who had been present the night before, returned to defendant’s apartment where they recovered a jacket and electrical cords. Chief Donovan directed another officer to make sure that a table and its broken legs were seized when the warrant was executed. That officer went to the apartment as the others were leaving. Detective Delano made a handwritten addition to the typed return indicating that the table and legs also had been recovered. All of the items seized pursuant to warrant were mentioned in Murray’s statement.

After a pretrial suppression hearing, the warrantless arrest of defendant in his home was sustained. The suppression court found probable cause to believe that defendant had murdered Borek in that the information given to police by Murray was recent, based on personal observation, extremely detailed and verified by police observation. The court then found that "[confronted late at night, with information that the alleged perpetrator of the homicide was preparing to flee the jurisdiction for Houston, Texas; information * * * they were * * * entitled to rely on under the circumstances,” the "police found themselves in obvious exigent circumstances and were entitled to proceed to arrest the defendant in his home, as quickly as possible, without a warrant.” Defendant’s statements were held admissible as spontaneous utterances following a lawful arrest.

Defendant also moved to suppress various items of physical evidence, including the jacket, table and cords. He contended that even if the police had lawfully arrested him, they acted unlawfully in conducting a pre-warrant search of the apartment after he had been handcuffed. Defendant premised his argument for suppression on People v Arnau (58 NY2d 27), arguing that the case was distinguishable in result because the police there had only secured — and did not search — the suspect’s home while they obtained a warrant. Thus, there was no exploitation or taint of the subsequent search pursuant to warrant. Here, defendant urged, the search conducted by Chief Donovan and his evidence squad was unlawful and therefore did taint the subsequent lawful search. The suppression court concluded that once defendant had been arrested, the police were not justified in remaining on the premises and conducting a warrantless investigative search, and therefore suppressed all items taken from the apartment before the warrant issued. Those items are no longer in issue. Nonetheless, the court found that the evidence seized during the search pursuant to warrant was admissible because the warrant was supported by an independent source of probable cause, untainted by anything the police may have illegally learned earlier from defendant or obtained from his home.

A divided Appellate Division affirmed, the majority agreeing that there were exigent circumstances to justify the warrantless arrest (124 AD2d 5). The court further ruled that, even if the initial entry was illegal, there had been no showing that the search and seizure following the issuance of the search warrant was tainted by any illegality. To the contrary, the court noted that the warrant application was based solely on Murray’s statement and did not exploit the initial entry. Thus, the jacket, table and cords were properly admitted. We now affirm.

The Warrantless Arrest

The warrantless arrest of defendant in his home would violate both the State and Federal Constitutions (NY Const, art I, § 12; US Const 4th Amend) unless based on probable cause and justified by exigent circumstances (People v Mealer, 57 NY2d 214, 218; Payton v New York, 445 US 573, 590, on remand 51 NY2d 169). Both lower courts found that the arrest was justified because, after the police investigation and Murray’s statement, the police had clear probable cause to believe that defendant had murdered Borek, and because there were exigent circumstances in (among other things) the combined savagery of the crime, the late weekend hour, and defendant’s expressed intention to flee the jurisdiction. These determinations involve mixed questions of fact and law and where, as here, there is support in the record for such undisturbed findings, they are beyond the scope of our review (People v Hicks, 68 NY2d 234, 238; People v Dory, 59 NY2d 121, 127). Concluding that the arrest was lawful, we reject defendant’s contention that his statements and the physical evidence must be suppressed as "poisoned fruit.” Further, we agree that defendant’s statements at the time of arrest are admissible as spontaneous utterances (see, People v Bryant, 59 NY2d 786, 788).

The Warrantless Search

Even assuming a lawful arrest, however, defendant urges suppression of the jacket, table and cords seized pursuant to warrant because this evidence was secured as the result of unconstitutional police conduct before obtaining and executing the warrant. When the police act illegally during the process of obtaining evidence, that evidence may nonetheless be admissible if gained from an independent source without taint or exploitation of the illegality by the police (see, People v Arnau, 58 NY2d 27, 32-33, supra; see also, Silverthorne Lbr. Co. v United States, 251 US 385, 392). Defendant claims that this "independent source” rule should not be applied to cleanse the prior police misconduct here.

A bedrock principle of our law is that police officers who believe they have probable cause must obtain a warrant before conducting a search (see, NY Const, art I, § 12; US Const 4th Amend; see also, CPL art 690). If a Magistrate concurs with the officers’ belief, a warrant will issue; if not, the officers cannot search unless they obtain additional evidence that persuades a Magistrate to issue a warrant (see, People v Hanlon, 36 NY2d 549, 559; Johnson v United States, 333 US 10, 14). The constitutional warrant requirement "is designed to interpose the detached and independent judgment of a neutral Magistrate between the interested viewpoint of those engaged in ferreting out crime and potential encroachments on the sanctity and privacy of the individual”. (People v Hanlon, supra, at 558.) Our distaste for warrantless searches "bespeaks an aversion to the existence of unchecked and unlimited power in the hands of those employed to enforce laws” and a recognition that "where a search warrant has been obtained the dangers of unbridled power are minimized.” (Id., at 559, 560.)

To permit the police to search first and obtain a warrant only if their search uncovers or "confirms” that there is incriminating evidence would ordinarily violate the warrant requirement (see, People v Arnau, 58 NY2d 27, 31, supra; United States v Griffin, 502 F2d 959, 961, cert denied 419 US 1050). Were such a practice countenanced, the police might easily avoid having to demonstrate lawful "probable cause” as the law demands. They could "instead achieve 'certain cause’ by conducting an unlawful confirmatory search, thus saving [themselves] the time and trouble of obtaining and executing a warrant if [they do] not find the evidence.” (People v Cook, 22 Cal 3d 67, 98, 583 P2d 130, 148.) So insulated, the police could safely engage in such conduct because, if evidence were found in the course of an illegal search, they would still be permitted to seize it in a second search under independent color of law and use it at trial. Obviously, such a practice undermines the very purpose of the warrant requirement and cannot be tolerated. "[E]very time [a police officer] fails to find the suspected evidence, he has also invaded the privacy of a citizen innocent of any wrongdoing.” (Id.; see also, 4 LaFave, Search and Seizure § 11.4 [f], at 424-426 [2d ed].)

The presence of an independent source for a warrant and subsequent search therefore does not automatically immunize an initial warrantless search and insure the admissibility of evidence eventually seized pursuant to the warrant.

Just as the independent source rule does not automatically immunize prior police misconduct, so the fact that there has been a warrantless initial search does not invariably require the suppression of evidence later seized pursuant to warrant. Application of the exclusionary rule — the price paid by society in particular cases for the greater value of deterring future police wrongdoing — is exacted when, in the particular criminal trial, the prosecution has somehow exploited or benefited from its illegal conduct, when there is a connection between the violation of a constitutional right and the derivative evidence (see, Wong Sun v United States, 371 US 471, 478; 4 LaFave, Search and Seizure § 11.4 [a], at 374 [2d ed]). In the case of a confirmatory search, such exploitation or benefit may be found in the fact that the police have used the search to assure themselves that there is cause to obtain a warrant. Given such a nexus, the derivative evidence seized under color of the subsequent search warrant may be suppressed.

In this case, however, defendant made no claim that the initial search was improperly undertaken by the police to verify or confirm the information in Murray’s statement, which was then used to obtain a warrant. Defendant’s failure to raise the claim not only deprived the People of any opportunity to rebut such a contention but also left an inconclusive record on the issue. For example, while it is undisputed that the police rummaged through defendant’s home without a warrant, there is support in the record for the conclusion that all of the evidence seized pursuant to the warrant had been observed in plain view in the course of the lawful arrest, thus negating any need for a confirmatory search. Nor does the record establish that there was any other connection between the police misconduct and the evidence ultimately recovered from defendant’s apartment.

Defendant’s remaining contention lacks merit.

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

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

Order affirmed.

      . A confirmatory search is one conducted by law enforcement officers without warrant or exigency, for the purpose of assuring or "confirming” that it is worth their time and effort to obtain a search warrant. (See, 4 LaFave, Search and Seizure § 11.4 [f], at 425 [2d ed].)

        . The ensuing recitation is taken from police testimony given without contradiction at the suppression hearing.

      . [3] The photographs of defendant’s apartment taken during the illegal search were improperly admitted by the suppression court under the theory of "inevitable discovery.” The doctrine of inevitable discovery may not be used to excuse unlawful police actions by admitting what was obtained as a direct result of the misconduct (People v Stith, 69 NY2d 313, 319). Nevertheless, we agree with the court below that any error in their admission was harmless (124 AD2d 5, 10). The photographs were used at trial to show the layout of the apartment; defendant indicates no prejudice by their admission at trial.

      . An additional circumstance supporting the lower courts’ findings is the testimony of Chief Donovan, an experienced police officer, that he had not sought a warrant, in part because of "the unavailability of a judge” at that late hour. Significantly, the record does not contain any information suggesting that a Magistrate was available on weekend nights to entertain warrant applications.


text:
    In the Matter of Louis Hodes et al., Respondents, v David Axelrod, as Commissioner of Health of the State of New York, Appellant.
    Argued September 3, 1987;
    decided October 22, 1987

      POINTS OF COUNSEL

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

      Thomas F. Gleason and Cornelius D. Murray for respondents.
   OPINION OF THE COURT

Kaye, J.

The question raised by this appeal is whether the doctrine of vested rights or res judicata bars a second administrative proceeding — where the first has failed — for automatic revocation of petitioners’ nursing home operating certificate owing to their industry-related felony convictions.

On April 4, 1979, petitioners Louis Hodes and Herman Surkis, owners and operators of Franklin Park Nursing Home (a licensed residential care facility), each entered a plea of guilty to grand larceny in the third degree, based on fictitious invoices and unearned Medicaid reimbursements. Petitioners were sentenced on October 25, 1979 and several months later received certificates of relief from disabilities (Correction Law art 23). For the next eight years — while petitioners continued operating their facility — the Department of Health, the Legislature and the courts have grappled with the issue whether, in such circumstances, nursing home operating certificates may be revoked automatically upon industry-related felony convictions of the persons who control them. Petitioners contend that the issue was forever resolved in their favor by a final judgment in the first administrative proceeding denying automatic revocation, and that this judgment cannot be impaired by subsequent amended legislation requiring revocation of their license. We hold, however, that in the present circumstances neither the vested rights doctrine nor res judicata forecloses a second revocation proceeding under the amended statute.

Central to this appeal is Public Health Law § 2806 (5) as it existed at the time of petitioners’ convictions in 1979, and as thereafter twice amended — once in 1981 and a second time in 1983.

In 1979, Public Health Law § 2806 (5) permitted the Commissioner after a hearing to revoke a nursing home operating certificate if the person controlling the facility was convicted of an industry-related felony (L 1977, ch 896). Upon petitioners’ convictions they were advised that a hearing would be held by the Department of Health to determine whether their operating certificate should be revoked, suspended, limited or annulled by reason of their convictions. The Administrative Law Judge before whom the hearing took place found that petitioners’ felony convictions were sufficient to warrant revocation of their operating certificate and so recommended. By order dated February 24, 1981 the Department of Health revoked petitioners’ operating certificate pursuant to Public Health Law § 2806 (5), finding that they each had been convicted of a felony in connection with an activity or program subject to the regulations of the State Department of Health. Petitioners’ article 78 proceeding challenging the revocation was dismissed by the Appellate Division, and the administrative determination confirmed (see, Matter of Hodes v Axelrod, 84 AD2d 895).

In July 1981 Public Health Law § 2806 (5) was amended, effective immediately, to make revocation of operating certificates mandatory upon a controlling person’s conviction for an industry-related felony (L 1981, ch 607). The accompanying executive memorandum made clear that these amendments addressed a concern that convicted felons were taking advantage of prolonged administrative and judicial revocation proceedings, while continuing to operate facilities that cared for the aged and infirm (1981 McKinney’s Session Laws of NY, at 2604).

On petitioners’ appeal to this court, we reversed the Appellate Division judgment, concluding that the Public Health Law as it existed at the time of our decision — which is the applicable law (see, Strauss v University of State of N Y., 2 NY2d 464, 467, appeal dismissed 355 US 394) — was impermissibly at odds with Correction Law § 701, barring automatic revocation of petitioners’ operating certificate (56 NY2d 930, rearg denied 57 NY2d 775). We recognized that an "unfortunate result” was produced by the interrelationship of Public Health Law § 2806 (5) and Correction Law § 701, but that amelioration was properly for the Legislature (id., at 932).

Within weeks the Legislature responded by amending both Public Health Law § 2806 (5) and Correction Law § 701 (2) specifically to require revocation of nursing home operating certificates upon a controlling person’s industry-related felony conviction, despite a certificate of relief from disabilities (L 1983, ch 584). The amendments were to take effect immediately and "apply to all existing operating certificates even though the felony conviction may have been entered and the certificate of relief from disabilities granted prior to the effective date hereof.” (L 1983, ch 584, § 3.) The sponsoring agency’s memorandum, referring to the nursing home scandals of the mid 1970’s, again took note of the serious situation created by convicted felons continuing to operate health care facilities as review proceedings dragged on. While the 1981 amendments intended to rid the industry of such persons, and to do so expeditiously, several nonetheless continued operating nursing homes. The memorandum further described the result in Hodes v Axelrod (supra), as well as its impact, concluding that the new bill would resolve the "dilemma” by excepting the automatic revocation provisions of the Public Health Law from the bar to automatic relief contained in the Correction Law: "This limitation on the scope of the certificate of relief would resurrect the revocations previously imposed. This will assist in the Department’s continuing efforts to remove convicted felons from the operation and provision of health care services.” (Mem of State Department of Health, 1983 McKinney’s Session Laws of NY, at 2631; see also, 1983 NY Legis Ann, at 254-255.)

Armed with the amended legislation, in 1984 the Commissioner of Health commenced the present proceeding against petitioners under Public Health Law § 2806 (5) to revoke their operating certificate upon a finding that they had been convicted of industry-related felonies. The proceeding was, however, enjoined by Special Term on the ground that petitioners enjoy the protection of "the res judicata effect of the favorable Court of Appeals determination.” A divided Appellate Division affirmed, the majority concluding both that petitioners have a vested property right in the judgment on the merits in their favor, and that the new proceeding is barred by the doctrine of res judicata. In this posture the case comes before us.

As the starting point for our analysis, we agree with the Appellate Division dissenter that the 1983 amendments to Public Health Law § 2806 (5) — explicitly made retroactive by the Legislature — were intended to apply to all licensed operators, even those like petitioners who had litigated the automatic revocation issue to a final judgment in their favor under preexisting law. While clear expression of such purpose is unquestionably necessary (see, e.g., Gleason v Gleason, 26 NY2d 28, 36), that requirement is satisfied both by the literal words of the 1983 amendment and by its history.

The question is whether realization of that legislative objective is precluded either by a vested right petitioners acquired in the judgment or by the doctrine of res judicata. We conclude that neither is a bar to the present revocation proceeding.

The Vested Rights Doctrine

Although a statute is not invalid merely because it reaches back to establish the legal significance of events occurring before its enactment, a traditional principle applied in determining the constitutionality of such legislation is that the Legislature is not free to impair vested or property rights (United States Trust Co. v New Jersey, 431 US 1; 2 Rotunda, Nowak & Young, Constitutional Law § 15.9). The vested rights doctrine recognizes that a "judgment, after it becomes final, may not be affected by subsequent legislation.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 58.) Once all avenues of appeal have been exhausted, under this doctrine a judgment becomes an inviolable property right which thereafter may not constitutionally be abridged by subsequent legislation (id.).

Germania Sav. Bank v Village of Suspension Bridge (159 NY 362) — decided in 1899 — is a representative application of the traditional principle of "vested rights”. In that case, this court had initially denied a motion for leave to appeal in an action on coupon bonds because the statute then in effect did not allow such an appeal absent permission of the General Term when the complaint demanded less than $500; the statute was thereafter amended to remove the monetary limitation. In dismissing a second motion for leave, we held that applying the statute retrospectively in such circumstances would unconstitutionally deprive the defendant of a vested property right: "A judgment is a contract which is subject to interference by the courts so long as the right of appeal therefrom exists, but when the time within which an appeal may be brought has expired, it ripens into an unchangeable contract and becomes property, which can be disposed of or affected only by the act of the owner, or through the power of eminent domain. It is, then, beyond the reach of legislation affecting the remedy, because it has become an absolute right which cannot be impaired by statute.” (Id., at 368; see also, Saltser & Weinsier v McGoldrick, 295 NY 499; Feiber Realty Corp. v Abel, 265 NY 94; Livingston v Livingston, 173 NY 377, 383; Matter of Greene, 166 NY 485, 492.)

Since Germania Sav. Bank (supra), however, the traditional principle has undergone more critical analysis. We have recognized that the vested rights doctrine is conclusory, and indeed a fiction that "hides many unmentioned considerations of fairness to the parties, reliance on pre-existing law, the extent of retroactivity and the nature of the public interest to be served by the law. (Hochman, Retroactive Legislation, 73 Harv. L. Rev. 692.)” (Matter of Chrysler Props. v Morris, 23 NY2d 515, 518.) While there is a persisting aversion to retroactive legislation generally (see, e.g., 2 Rotunda, Nowak & Young, Constitutional Law § 15.9), we have noted that the modern cases reflect a less rigid view of the Legislature’s right to pass such legislation and more candid consideration — on a case-by-case basis — of the various policy considerations upon which the constitutionality of retroactive legislation depends (Matter of Chrysler Props. v Morris, 23 NY2d 515, 521-522, supra). "[T]his is an area where broad conclusions are to be studiously avoided for it is impossible to predict in advance how in each concrete case the various factors will line up.” (Id., at 519.)

Balancing the various factors, we hold that the vested rights doctrine does not preclude application of the amended statute to these petitioners.

Examining first the nature of the right petitioners allegedly secured by the judgment, plainly there can be no vested right in their continued operating license; petitioners themselves acknowledge this. The amended legislation does not reopen petitioners’ criminal prosecution. At most, the judgment could give them an advantage over their fellow facility operators whose certificates under the amended law are automatically revoked upon an industry-related felony conviction. It is, further, significant in the balance that petitioners’ alleged right arises as the unfortunate result of an inadvertent gap or anomaly in the interrelationship of two laws, which the Legislature within weeks cured by the amended statute now sought to be enforced. Any reliance by petitioners on the judgment thus would have been the product of a legislatively unintended windfall which was, immediately upon identification, eliminated. (See, Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv L Rev 692, 705-706.)

To be weighed with these considerations is the fact that petitioners continue to run a public health facility. Nursing homes care for the aged and infirm, and receive State funds for such care under the Medicaid program (see, Social Services Law § 363). There is a public interest in policing this industry and removing persons convicted of industry-related felonies from the operation of nursing homes. That this is a compelling interest is plain not only from the nature of the services offered but also from the publicized scandals that have plagued this industry. Automatic revocation in these circumstances in itself serves the public interest, so that upon conviction such operators may be removed expeditiously; nearly a decade has already elapsed since petitioners’ convictions. The amended statute purports to reach "all existing operating certificates”, thus affecting only those licensees continuing to offer health care to the public. The application of the law to all such persons is rationally related to a legitimate governmental purpose, and results in the equal treatment of licensed operators.

Thus, we conclude that there is a strong public interest to be served by permitting the law to be enforced as amended in 1983, and that in this case the public interest overrides petitioners’ claimed constitutional objection.

Res Judicata

Finding no constitutional impediment in the application of the amended statute to petitioners, we next consider whether the cause of action for automatic revocation was somehow extinguished by the judgment in the prior proceeding, brought under the old law.

Simply stated, where there is a valid final judgment the doctrine of res judicata, or claim preclusion, bars future litigation between those parties on the same cause of action. The doctrine rests not on constitutional underpinnings but on sound public policy considerations. Putting an end to a matter for all time is fair to the party who has endured the cost and travail of a litigation, fair to the party whose claim has once been heard, and in the interest of the judicial system generally (Matter of Reilly v Reid, 45 NY2d 24, 28; 5 Weinstein-Korn-Miller, NY Civ Prac ]f 5011.07; see also, Restatement [Second] of Judgments § 17 et seq.).

While simply stated, the doctrine often eludes ready application because of difficulty determining whether there is the requisite identity between an earlier cause of action and a later one. The fact that causes of action may be separately stated or statable, or invoke different legal theories, will not permit relitigation of claims (Matter of Reilly v Reid, supra, at 19; see also, O’Brien v City of Syracuse, 54 NY2d 353, 357; Smith v Russell Sage Coll., 54 NY2d 185, 192). In this State, we have adopted a "transaction” test for resolving such questions: a judgment extinguishes "all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose”; a "transaction” is determined pragmatically, depending on whether the facts form a convenient trial unit and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage (Restatement [Second] of Judgments § 24; Matter of Reilly v Reid, supra, at 29; see also, Siegel, NY Prac § 442).

Twice recently this court has applied the transaction test where the only real difference between the first and second actions was an intervening change in law. In Matter of John P. v Whalen (54 NY2d 89, 94), we held that res judicata did not bar a second request for documents pursuant to an amended version of the Freedom of Information Law even though the original request was essentially the same and properly denied under preexisting law. The statutory amendment materially changed the parties’ rights such that the new request was independent from the first and thus a wholly distinct transaction. In Matter of Meegan S. v Donald T. (64 NY2d 751), a paternity proceeding was initially dismissed as untimely under the then-applicable two-year Statute of Limitations. The Statute of Limitations was thereafter enlarged to five years and the proceeding was recommenced within the new limitations period. We held that the amended Statute of Limitations was to be applied retroactively and that the second petition was not subject to dismissal on the ground of res judicata: "The issue disposed of by the order of dismissal in the first proceeding, however, was only that petitioner’s claim was untimely under the Statute of Limitations then applicable to paternity suits, and it did not reach the issue of timeliness under the amended law, which would permit petitioner’s claim.” (Id., at 752.)

Although both revocation proceedings instituted against petitioners are based on the same felony convictions, seeking the same remedy, it is equally true that petitioner in John P. twice made virtually the same FOIL requests and plaintiff in Meegan S. twice commenced the same paternity suit. The operative consideration in all three cases is that the statutory rights of the parties were altered between the first and second proceedings. This being so, the two proceedings against petitioners can be said to lack the requisite identity for application of res judicata (see, State Farm Ins. Co. v Duel, 324 US 154, 162).

We find this analysis particularly apt in the present situation because of the public importance of the issues involved (see, Restatement [Second] of Judgments § 28 [2], comment c; § 26 [1] [d]). For compelling reasons in the public interest, the Legislature provided that all persons holding operating certificates at the time of the amended law should be equally subject to automatic forfeiture upon conviction of an industry-related felony. If the pending proceeding against petitioners under the amended statute were precluded by res judicata, petitioners would be left with a license to operate a public health facility despite their convictions and despite the fact that others operating comparable facilities automatically lose their licenses upon comparable convictions.

Petitioners’ arguments in support of res judicata are in the end much the same as their plea for application of the vested rights doctrine — that permitting a second revocation proceeding to go forward against them unfairly impairs rights already adjudicated by this court in the first proceeding. Indeed, the doctrines of vested rights and res judicata — while resting on different foundations and implicating different válues — do have certain common elements, most powerfully a central concern for fairness. In this respect, however, our "vested rights” analysis and conclusions are pertinent. A second revocation proceeding is not unfair to petitioners in any sense that is protected by law; this proceeding is, to the contrary, supported by supervening considerations of public interest that have been properly balanced by the Legislature.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

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

Order reversed, etc.

      . A third petitioner, Fred Springer, was also a respondent on this appeal. Springer and his partners in the Park Nursing Home and the Rockaway Nursing Home have entered into voluntary receivership agreements with the State Department of Health and relinquished their operating certificates for these facilities, and the appeal has been withdrawn as to him.

      . Correction Law § 701 (2) provided in part that: "Notwithstanding any other provision of law, a conviction of a crime or of an offense specified in a certificate of relief from disabilities shall not cause automatic forfeiture of any license, permit, employment or franchise, including the right to register for or vote at an election, or automatic forfeiture of any other right or privilege, held by the eligible offender and covered by the certificate.”


author: Chief Judge Wachtler.

text:
    The People of the State of New York, Respondent, v Francisco Alvarez, Paul Clancy, Thomas Jackson and Nelson Otero, Appellants.
    Argued October 8,1987;
    decided November 12, 1987

      POINTS OF COUNSEL

      Richard N. Allman and Philip L. Weinstein for appellants.

      Robert M. Morgenthau, District Attorney (Donna Krone and Norman Barclay of counsel), for respondent.

      Stephen M. Brent for the New York State Defenders Association, amicus curiae.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Joseph Koczaja of counsel), for Division of State Police, amicus curiae.

   OPINION OF THE COURT

Chief Judge Wachtler.

Defendants in these cases were arrested for drunk driving offenses in separate and unrelated incidents. In each case the police took a single breath sample using a Smith & Wesson Model 900A Breathalyzer machine, and the test indicated a blood alcohol content in excess of the legal limit (see, Vehicle and Traffic Law § 1192 [1], [2]; § 1195 [2]). Defendants then moved to suppress the breathalyzer test results arguing, as they do in this court, that because the administration of the tests necessarily destroyed the breath samples, the Due Process Clause of the State Constitution (NY Const, art I, § 6) required that the police take and preserve a second sample for later use by defendants.

In California v Trombetta (467 US 479, 485) the Supreme Court of the United States held that the failure of the police to take and preserve a breath sample for later testing does not deprive criminal defendants of "a meaningful opportunity to present a complete defense”, and thus does not violate the Federal Constitution. In each of the cases now before us, however, the hearing court held that the taking and preservation of a second breath sample, which it found to be a "simple and accurate” procedure, was required under the New York State Constitution, and therefore suppressed the primary breathalyzer test results. The Appellate Term reversed and denied defendants’ suppression motions, on the authority of People v Molina (128 Misc 2d 638 [App Term]). A Judge of this court granted defendants leave to appeal. We now affirm Appellate Term’s denial of defendants’ suppression motions, and adopt the reasoning of California v Trombetta (supra) as a matter of State constitutional law.

We have long recognized that while this court is, of course, bound by the decisions of the Supreme Court in matters of Federal law, " 'in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States’ ” (People ex rel. Arcara v Cloud Books, 68 NY2d 553, 557, quoting People v Barber, 289 NY 378, 384).

Recently, in People v P. J. Video (68 NY2d 296), we reviewed some of the many factors and considerations relevant to this court’s independent judgment of whether, in a particular case, the New York State Constitution provides greater protection than is afforded by the Federal Constitution. In that case we first identified "interpretive” factors, which focus on differences in the text, structure, or historical underpinnings between the State and Federal Constitutions (id., at 302).

However, in People v P. J. Video (supra) we did not stop our inquiry with an interpretive analysis. We recognize that regardless of whether there exists a Federal constitutional provision parallel to a State provision, we must undertake a "noninterpretive” analysis, proceeding from "a judicial perception of sound policy, justice and fundamental fairness” (id., at 303). Under this analysis relevant considerations include whether the right at issue has historically been afforded greater protection in New York than is presently required under the Federal Constitution, whether the right is "of peculiar State or local concern,” or whether the State citizenry has "distinctive attitudes” toward the right (id; see also, People v Class, 67 NY2d 431, 433 [upon a routine stop for a traffic infraction, an officer’s nonconsensual entry into an automobile to determine a vehicle identification number violates the State Constitution, although it does not violate the Federal Constitution]). Finally, to these interpretive and non-interpretive factors we have added the practical considerations of the need for Federal-State uniformity, and the sometimes countervailing necessity of a "bright line” test in certain areas of the law (People v P. J. Video, supra, at 303-304).

Applying these principles, we find no basis for departing from Trombetta as a matter of State constitutional law. In the past, in interpreting the State Due Process Clause we have at times performed an interpretive analysis (e.g., Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159-160 [noting that, unlike the 14th Amendment of the Federal Constitution, the State due process provision lacks express reference to a State-action requirement]) and a noninterpretive analysis (e.g., Cooper v Morin, 49 NY2d 69, cert denied 446 US. 984 [rejecting the reasoning of Bell v Wolfish, 441 US 520]). As recognized by defendants in the case before us, however, the interpretive factors of textual, structural and historical differences between the due process provisions are not material for present purposes.

Under a noninterpretative analysis, there can be no doubt in New York that the fairness of a criminal proceeding is of particular State concern, and New York historically has provided various protections in this area above the Federal constitutional minimum (see, e.g., People v Hobson, 39 NY2d 479 [right to counsel protections]; People v Isaacson, 44 NY2d 511 [due process limits on police conduct]). The Supreme Court’s analysis and result in Trombetta, however, are consonant with New York State law and interests and, we believe, they are analytically correct and provide a fair and proper rule under our State Constitution.

The Trombetta decision, written for a unanimous Supreme Court, rests upon two propositions: first, that the breathalyzer test is accurate, and second, that a defendant at trial can adequately explore malfunctions caused by faulty calibration, radio wave interference, contamination of the sample by foreign objects, or operator error by examining the machine, reviewing calibration and similar records, and questioning the officer who administered the test.

Although defendants in this case dispute the accuracy of these premises, decisions of this court also amply support the Supreme Court’s conclusions. Recently we reaffirmed our longstanding conclusion that "the scientific reliability of breathalyzers in general is no longer open to question” (People v Mertz, 68 NY2d 136, 148, citing People v Gower, 42 NY2d 117). Moreover, in this State a positive breathalyzer test establishes only a prima facie case and is not per se evidence of guilt, thus allowing defendant to argue, for example, that his blood alcohol content was lower when he was driving than when the test was given (People v Mertz, supra, at 146).

In addition, when a breathalyzer test is sought to be used against a defendant at trial "the People must introduce evidence from which the trier of fact could reasonably conclude * * * that the testing device was in proper working order at the time the test was administered to defendant * * * and that the chemicals used in conducting the test were of the proper kind and mixed in the proper portions” (People v Freeland, 68 NY2d 699, 700). Finally, other avenues of challenge to the accuracy of the breathalyzer test are available (see, People v Thomas, 121 AD2d 73, affd 70 NY2d 859 [foreign object in the defendant’s mouth can result in a false breathalyzer reading]; People v English, 103 AD2d 979 [defendant may not be denied discovery which prevents him from challenging the reliability and accuracy of the machine]). In sum, the analysis of the court in Trombetta, which we find persuasive, finds full support in the decisions of the courts of this State.

Defendants argue, however, that notwithstanding the accuracy of the breathalyzer test or the alternative avenues for disclosing machine malfunction, the strong protection of defendants’ access to information under New York law requires a different result than that reached by the Trombetta court (see, e.g., People v Ranghelle, 69 NY2d 56 [failure to produce Rosario material is not susceptible to harmless error analysis]; People v Kelly, 62 NY2d 516 [People have a duty to preserve discoverable evidence until a request for production is made]; People v White, 40 NY2d 797 [defendant is entitled to pretrial discovery of drugs in the possession of the People to perform his own scientific tests]). These decisions, however, do not provide the basis for a rule, sought by defendants in this case, that would require the police to affirmatively gather evidence for the accused (cf., People v Reedy, 70 NY2d 826 [evidence not in the possession or control of the People need not be turned over to the defendant]). Finally, we note that there is no legal impediment to defendant obtaining this additional evidence for defense purposes; indeed, the Legislature has provided that a defendant has a statutory right to have a personal physician administer an additional chemical test (Vehicle and Traffic Law § 1194 [8]).

Accordingly, we conclude that as a matter of State constitutional law the police are not required to obtain and preserve a second breath sample for later use by the accused, and the orders of the Appellate Term should, therefore, be affirmed.

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

Orders affirmed.

       Even if parallel to a Federal constitutional provision, a State constitutional provision’s presence in the document alone signifies its special meaning to the People of New York; thus, the failure to perform an independent analysis under the State Constitution would improperly relegate many of its provisions to redundancy (Kaye, Dual Constitutionlism In Practice and Principle, 42 Rec AB City NY 285, 297-299).


author: Alexander, J.

text:
    Clark-Fitzpatrick, Inc., Appellant, v Long Island Rail Road Company, Respondent, et al., Defendant.
    Argued October 9, 1987;
    decided November 17, 1987

      POINTS OF COUNSEL

      Robald P. Mysliwiec, Sheila M. Donohue and Edward B. Fitzpatrick, III, for appellant.

      Justin N. Feldman, Ingrid R. Sausjord and Thomas M. Taranto for respondent.
   OPINION OF THE COURT

Alexander, J.

This litigation arises out of a multimillion dollar track improvement of the Port Jefferson branch of the Long Island Railroad by the addition of a second railroad track between Amott and Huntington. Construction on the contract, which defendant, Long Island Rail Road Company (LIRR), awarded to plaintiff, Clark-Fitzpatrick, Inc., as low bidder, began in September 1983. As alleged by plaintiff, the contract contained detailed engineering specifications that instructed plaintiff on how to proceed with construction. Plaintiff contends that, after construction began, it discovered that defendant was unprepared to proceed with the project — specifically, that the engineering design was flawed, thus requiring substantial design changes during the course of construction; that defendant had failed to acquire the rights to certain necessary properties bordering the construction sites; and that defendant had failed to locate and move various utility lines throughout the project that interfered with construction. Notwithstanding these difficulties, plaintiff proceeded with construction, which was completed in July 1986 — almost one year after the scheduled completion date.

The various problems with project design and construction caused plaintiff, in November of 1984, to commence this action against the railroad and the railroad’s parent, the Metrópolitan Transportation Authority (MTA), sounding in breach of contract, quasi contract, fraud, gross negligence and negligence. Alleging that defendant entered into the contract with full knowledge of the problems, but intentionally concealed them from plaintiff, plaintiff seeks to recover compensatory and punitive damages. Defendant moved to dismiss the causes of action sounding in negligence and quasi contract, and sought dismissal of the demand for punitive damages on the ground that, as a public benefit corporation, it was immune from such damages. Special Term granted the motion in its entirety. The Appellate Division unanimously affirmed and granted leave to this court upon the certified question: Was the order properly made? We now affirm, answering the certified question in the affirmative.

I.

We find without merit plaintiffs contention that defendant — a public benefit corporation heavily supported by tax dollars and performing an essential government function in providing commuter transportation — may be subject to punitive damages.

We have held that the State and its political subdivisions are not subject to punitive damages (Sharapata v Town of Islip, 56 NY2d 332). In so holding, we recognized that the goals of punishment and deterrence are. not served when punitive damages are imposed against the State, for in such circumstances, it ultimately is the innocent taxpayer who is punished (Sharapata v Town of Islip, 56 NY2d, at 338, supra). Although punitive damages may be appropriately imposed against a private profit-making corporation, a "municipality is different” because " '[i]t is not organized for any purpose of gain or profit, but it is a legal creation engaged in carrying on government and administering its details for the general good and as a matter of public necessity’ ” (Sharapata v Town of Islip, 56 NY2d, at 337, supra, quoting Costich v City of Rochester, 68 App Div 623, 631).

The LIRE, of course, is not itself the State or one of its political subdivisions; rather, it is, pursuant to Public Authorities Law § 1266 (5), a public benefit subsidiary corporation of the MTA. Although "public benefit corporations * * * created by the State for the general purpose of performing functions essentially governmental in nature, are not identical to the State or any of its agencies, but rather enjoy, for some purposes, an existence separate and apart from the State, its agencies and political subdivisions” (Grace & Co. v State Univ. Constr. Fund, 44 NY2d 84, 88 [State University Construction Fund]), we have held that a particularized inquiry is necessary to determine whether — for the specific purpose at issue — the public benefit corporation should be treated like the State (see, Grace & Co. v State Univ. Constr. Fund, 44 NY2d 84, supra).

Applying this standard to the instant appeal, we hold, in light of the essential public function served by defendant in providing commuter transportation and the public source of much of its funding, that defendant should receive the same immunity from punitive damages as do the State and its political subdivisions. This conclusion proceeds inexorably from an examination of the enabling legislation creating defendant’s parent organization, the MTA, and the purposes articulated therein of furthering the development of commuter services essential to the economic health of the State (Public Authorities Law § 1263, L 1965, ch 324). Those purposes are specified by statute as being "in all respects for the benefit of the people of the state of New York”, and the Legislature further commanded that "the authority shall be regarded as performing an essential governmental function” (Public Authorities Law § 1264 [2]).

As a subsidiary of the MTA, defendant obviously plays a critical role in implementing this legislative goal and furthering this governmental purpose. Indeed, the Legislature clearly recognized this when, in explaining the urgent need for a transportation áuthority, stated that "[tjhrough [the MTA] the state [can] deal flexibly and efficiently with the differing financial, managerial and operational problems involved in insuring the continuation of such essential commuter services as those presently being provided by the Long Island Rail Road and the New York, New Haven and Hartford Railroad” (L 1965, ch 324, § 1 [7] [emphasis added]). Furthermore, the office of the State Comptroller, in a report analyzing selected aspects of defendant’s five-year capital plan, found that it "provides a vital transportation link between the City of New York and the suburban counties of Nassau and Suffolk” and that "[o]n an average weekday, more than 700 trains carry in excess of 287,000 passengers”, making defendant the busiest commuter railroad in the Nation (Off of State Comptroller, Long Island Rail Road: Selected Management Aspects of the Five-Year Capital Program, Report 84-S-135). Thus, the essential, public nature of defendant’s role in providing commuter transportation cannot be seriously questioned. Burdening so important a public function by the imposition of punitive damages would therefore not be desirable.

Moreover, the record shows that defendant receives much of its funding from taxpayer revenues and that, at the time this action was commenced, 49% of defendant’s total expenses were financed from outside subsidies, most of which were derived from public sources. The construction project at issue was also, in large measure, publicly financed. Thus, as was the case in Sharapata, the imposition of punitive damages against defendant would ultimately punish only the innocent taxpayers of New York State (Sharapata v Town of Islip, 56 NY2d 332, 338, supra). Accordingly, given the essential, governmental purpose that defendant serves, and considering the public sources of much of its funding, we hold that defendant should be exempt from the imposition of punitive damages.

II.

Turning to plaintiff's cause of action sounding in quasi contract, we conclude that it was properly dismissed. The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter (Blanchard v Blanchard, 201 NY 134, 138; see also, 66 Am Jur 2d, Restitution and Implied Contracts, § 6, at 949). A "quasi contract” only applies in the absence of an express agreement, and is not really a contract at all, but rather a legal obligation imposed in order to prevent a party’s unjust enrichment (Parsa v State of New York, 64 NY2d 143, 148; Farash v Sykes Datatronics, 59 NY2d 500, 504; Bradkin v Leverton, 26 NY2d 192, 197; Smith v Kirkpatrick, 305 NY 66, 73; Grombach Prods. v Waring, 293 NY 609, 615; Miller v Schloss, 218 NY 400, 407; see also, 1 Williston, Contracts § 3A [3d ed]; Calamari and Perillo, Contracts § 1-12, at 19 [2d ed]; 1 Corbin, Contracts § 19). Indeed, we have stated that: "Quasi contracts are not contracts at all, although they give rise to obligations more akin to those stemming from contract than from tort. The contract is a mere fiction, a form imposed in order to adapt the case to a given remedy * * * Briefly stated, a quasi-contractual obligation is one imposed by law where there has been no agreement or expression of assent, by word or act, on the part of either party involved. The law creates it, regardless of the intention of the parties, to assure a just and equitable result” (Bradkin v Leverton, 26 NY2d, at 196, supra [emphasis added]).

Of course, a party may perform a contract under protest, and then sue for damages resulting from the second party’s breach (Borough Constr. Co. v City of New York, 200 NY 149). Alternatively, where rescission of a contract is warranted, a party may timely rescind and seek recovery on the theory of quasi contract (see, Soviero Bros. Contr. Corp. v City of New York, 286 App Div 435, affd 2 NY2d 924; see also, 22 NY Jur 2d, Contracts, § 462, at 402). It is impermissible, however, to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties (see, Soviero Bros. Contr. Corp. v City of New York, 286 App Div 435, supra; see also, 12 Williston, Contracts § 1459, at 69 [3d ed]; 22 NY Jur 2d, Contracts, § 465, at 410).

Here, it is undisputed that the relationship between the parties was defined by a written contract, fully detailing all applicable terms and conditions, and specifically providing for project design changes with adjustments in compensation contemplated in light of those changes. Notwithstanding plaintiffs claim that defendant breached the contract, plaintiff chose not to rescind the agreement, but instead to complete performance of the contract and sue to recover damages, which of course was plaintiffs right. Having chosen this course, however, plaintiff is now limited to recovery of damages on the contract, and may not seek recovery based on an alleged quasi contract.

Finally, we conclude that the two causes of action sounding in negligence were also properly dismissed. It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated (Meyers v Waverly Fabrics, 65 NY2d 75, 80, n 2; North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 179; Rich v New York Cent. & Hudson Riv. R. R. Co., 87 NY 382, 390). This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract (see, Rich v New York Cent. & Hudson Riv. R. R. Co., 87 NY 382, 398, supra).

Here, plaintiff has not alleged the violation of a legal duty independent of the contract. In its cause of action for gross negligence, plaintiff alleges that defendant failed to exercise "due care” in designing the project, locating utility lines, acquiring necessary property rights, and informing plaintiff of problems with the project before construction began. Each of these allegations, however, is merely a restatement, albeit in slightly different language, of the "implied” contractual obligations asserted in the cause of action for breach of contract (cf., Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954 [fraud claim held to be dressed-up version of contract cause of action]). Moreover, the damages plaintiff allegedly sustained as a consequence of defendant’s violation of a "duty of due care” in designing the project were clearly within the contemplation of the written agreement, as indicated by the design change and adjusted compensation provisions of the contract. Merely charging a breach of a "duty of due care”, employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim.

Based on the foregoing, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

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

Order affirmed, etc.

      . Although the Metropolitan Transportation Authority is named as a defendant, the amended complaint states no causes of action against it, and it is not involved in this appeal.

        . Plaintiffs cause of action sounding in fraud was not challenged below and is not an issue on this appeal.


author: Simons, J.

text:
    The People of the State of New York ex rel. Robert Brown, Also Known as George Ballard, Appellant, v New York State Division of Parole et al., Respondents. The People of the State of New York ex rel. Albert Citro, Respondent, v James Sullivan, as Superintendent of Sing Sing Correctional Facility, Appellant.
    Argued October 13,1987;
    decided November 17, 1987

      POINTS OF COUNSEL

      Mary Carroll Rothwell, Philip L. Weinstein and Roger Brazill for appellant in the first above-entitled proceeding.

      Robert Abrams, Attorney-General (Burton Herman, O. Peter Sherwood and Gerald J. Ryan of counsel), for respondents in the first above-entitled proceeding.

      Robert Abrams, Attorney-General (Burton Herman, O. Peter Sherwood and Gerald J. Ryan, of counsel), for appellant in the second above-entitled proceeding.

      Carol Kahn for respondent in the second above-entitled proceeding.
   OPINION OF THE COURT

Simons, J.

Pursuant to statutory mandate, a parolee is entitled to a final parole revocation hearing within 90 days of the determination finding that probable cause exists for the revocation of parole (Executive Law § 259-i [3] [f] [i]). The statute provides three exceptions to the 90-day rule. If an alleged violator requests and receives a postponement of the hearing, consents to a postponement initiated by the Parole Board, or "by his actions otherwise precludes the prompt conduct of such proceedings,” failure to hold the hearing within the 90-day period will be excused. These two habeas corpus proceedings present situations in which the relator or his counsel was unavailable and the issue is whether the failure of the Division of Parole to hold relators’ final revocation hearings within the 90-day period can be excused because they were.

I

A

In the first case relator was unavailable because he had a conflicting court appearance.

In April 1985, relator Robert Brown was released from prison on parole. On November 19, 1985 he was returned to jail after being arrested for additional crimes committed while on parole. A parole violation warrant was lodged against him on the same day charging that he had failed to make a scheduled office report as required by his parole officer. A preliminary parole revocation hearing was held, probable cause found and a final hearing was scheduled for February 4, 1986. At the request of the Division of Parole, however, the final hearing was rescheduled to February 13, 1986. Relator’s parole officer did not appear on that date causing a further adjournment. During the course of the discussions concerning an acceptable adjourned date, relator informed the Administrative Law Judge that he was scheduled for a court appearance on February 25, 1986. The final parole hearing was originally rescheduled for March 6, 1986, but after realizing that the 90-day period would expire on February 26, 1986, the Division of Parole rescheduled the hearing for February 24, the 88th day after the date on which the probable cause finding was made. Relator did not appear for the hearing on February 24, 1986, however, and the hearing was adjourned until March 17, 1986.

Relator failed to appear on the 24th because he was taken by New York City correction officials to a court appearance for arraignment on the new charges. It is undisputed that neither relator nor his attorney had advance notice of the arraignment and relator’s allegation that he asked the correction officers, both before and after the court appearance, to take him to his parole revocation hearing was not rebutted by respondents.

Relator’s final revocation hearing was held on March 17, 1986, 108 days after the determination of probable cause. At that time he moved to dismiss the charge on the ground that the hearing was untimely. The Hearing Officer eventually denied his motion to dismiss, finding that relator’s appearance on February 24, 1986 in New York Supreme Court, instead of attending the final revocation hearing, "must be seen as a choice” for which the Division of Parole should not be penalized. Relator instituted this habeas corpus proceeding, seeking vacatur of the parole warrant on the ground that the final revocation hearing was untimely. Supreme Court dismissed the petition and the Appellate Division affirmed. We granted leave to appeal.

B

In the Citro case, relator’s hearing was adjourned because his attorney failed to appear.

On May 31, 1983 relator Albert Citro was released from prison on parole. He was subsequently charged with a violation of parole and returned to prison. A preliminary hearing was held on July 1, 1985, probable cause found and a final revocation hearing scheduled for August 13, 1985. Sometime prior to this date, however, Citro was transferred from Queensboro Correctional Facility to Sing Sing Correctional Facility. Accordingly, the final hearing was rescheduled to be held at Sing Sing at 9:30 a.m. on September 25, 1985 — 86 days after the determination finding probable cause.

Relator’s counsel did not appear at Sing Sing on the morning of September 25, 1985 and the hearing was adjourned until October 9, 1985. October 2 was an available, regularly scheduled date for parole revocation hearings but relator’s counsel was not informed, prior to October 2, that the hearing had been rescheduled for October 9. At the October 9 hearing, relator argued that parole must be restored because the Division had not held a timely revocation hearing. Counsel excused her absence at the September hearing claiming that she had called Sing Sing on the morning of the 25th and informed relator’s parole officer of the conflict. She made no written or oral application to the hearing coordinator in the local area office to move the hearing to the afternoon. The motion to dismiss the charge was denied, relator was found to have violated the conditions of his parole and parole was revoked.

Relator instituted this habeas corpus proceeding, contending that the adjournment of the revocation hearing from September 25, 1985 to October 9, 1985 should be chargeable to the Division of Parole and, therefore, the October 9, 1985 hearing was untimely. Special Term granted the writ and restored relator to parole, reasoning that all 14 days of adjournment between September 25 and October 9 were chargeable to the Division of Parole because the Division failed to comply with its "responsibility to schedule revocation hearings in such a way to give a reasonable expectation that they will be held within the prescribed ninety (90) days.” The Appellate Division affirmed, but on different grounds. It concluded the period between September 25, 1985 and October 2, 1985 should be chargeable to the parolee because his lawyer failed to comply with the regulations requiring a written request for an adjournment (9 NYCRR 8005.17 [c] [1], [2]). The court held, however, that the seven days between October 3 and October 9 should be chargeable to the Division, because the Division failed to demonstrate that it acted " 'energetically and scrupulously’ ” to ensure that a hearing is not delayed for a period longer than necessary to assure an alleged parole violator his statutorily entitled right to counsel (124 AD2d 765, 766, quoting People ex rel. Burley v Warden, 70 AD2d 518, 518-519, lv denied 48 NY2d 602). We granted respondent leave to appeal.

II

Preliminarily, we note that in People ex rel. Brown v New York State Div. of Parole relator, in addition to being held on the parole violation, is being held on unrelated pending criminal charges. Because success on the merits in this proceeding would not entitle him to immediate release from custody, the remedy of habeas corpus is unavailable (People ex rel. Maiello v New York State Bd. of Parole, 101 AD2d 569, 573, affd 65 NY2d 145). However, appellate courts are empowered to convert a civil proceeding into one which is proper in form under CPLR 103 (c), making whatever order is necessary for its proper prosecution (Matter of Fritz v Huntington Hosp., 39 NY2d 339, 347). Thus, we convert this proceeding to one brought pursuant to CPLR article 78, observing that the proceeding was brought well within the four-month Statute of Limitations of CPLR 217 (compare, Matter of Soto v New York State Bd. of Parole, 107 AD2d 693, affd for reasons stated in App Div mem 66 NY2d 807 [habeas corpus petition brought after four-month period requires dismissal of petition], with Matter of Piersma v Henderson, 60 AD2d 1001, affd 44 NY2d 982 [habeas corpus brought within four-month period; proceeding is converted to an article 78 proceeding and court reaches the merits]).

Turning to the merits, there is no dispute that relator was not afforded a final revocation hearing within 90 days of the probable cause determination. Moreover, respondents concede that the delay between February 24 and March 17 cannot be chargeable to him pursuant to any of the statutory exceptions. Respondents contend, however, that the Division should be excused for failing to afford relator a revocation hearing within the 90-day period because he was not subject to its "convenience and practical control” (see, People ex rel. Gonzales v Dalsheim, 52 NY2d 9, 12). The burden of proving that the parolee is not subject to the practical control of the Division rests with the Division (id., at 14, n 1) and respondents have failed to satisfy that burden in the present case.

A parolee is in a place "subject to the convenience and practical control” of the Division of Parole when he is in the custody of a correctional facility as an inmate with which the Parole Board has parole jurisdiction (Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445, 447). It is legally irrelevant that the parolee is being detained as a local prisoner rather than as a State prisoner (id.) or that he is being confined in a local correctional facility rather than a State correctional facility (People ex rel. Walsh v Vincent, 40 NY2d 1049; see also, Matter of Byrne v Hammock, 97 AD2d 823; People ex rel. Durham v Flood, 93 AD2d 847) or even that the parolee is being detained in a sister State’s prison, provided that the detaining State has demonstrated a willingness to cooperate with New York authorities on parole-related matters (People ex rel. Horan v New York State Div. of Parole, 59 NY2d 809; People ex rel. Gonzales v Dalsheim, 52 NY2d 9, 14-15, supra). Relator was subject to the convenience and control of the Division here because he was within a facility that was amenable to its jurisdiction. The responsibility rested on the Division to arrange the hearing earlier enough within the 90-day period to accommodate necessary future adjournments or to coordinate their hearings with the demands of the criminal courts.

There may be rare cases in which the failure of the Division of Parole to hold a revocation hearing within the 90-day period due to the parolee’s attendance in court on the scheduled hearing date may be excused. Parolees should not be able to abuse the statutory framework by, for example, intentionally obtaining an adjournment of a court date so that the new date conflicts with a scheduled parole hearing for the sole purpose of ensuring that the parole hearing will not be held within the 90-day period (see, People ex rel. Diamond v Flood, 100 AD2d 604, 605). It cannot be successfully argued, however, that relator abused the system in this case. Prior to the February 24 date the two adjournments of the revocation hearing were requested and obtained by the Division of Parole. Furthermore, there is no dispute that relator did not know on February 13, when the revocation hearing was rescheduled to February 24, or any time thereafter, that he would be required to appear in court on that date. Finally, no explanation has been offered by the Division of Parole for its failure to hold the hearing later on the 24th or at some other time prior to the expiration of the 90-day period.

In sum, respondents have failed to meet their burden of showing that relator’s nonappearance at the February 24 parole revocation hearing was attributable to any of the three exceptions found in Executive Law § 259-i (3) (f) (i) or that relator was otherwise not subject to the practical control of the Division of Parole during the 90-day period. Executive Law § 259-i (3) (f) (i) reflects a legislative judgment that 90 days is sufficient time to overcome unexpected contingencies, such as court appearances, so long as the parolee is subject during that time to the Division’s practical control. The Division is not entitled to an extension based simply on a showing of its lack of fault.

Ill

In People ex rel. Citro, we concur with the Appellate Division that of the 14 days of delay from September 25 through October 9, only 7 days between October 2 and October 9 should be chargeable to the Division of Parole. The adjournment during the earlier period clearly was for his benefit to permit him to exercise his right to counsel and inasmuch as counsel did not obtain an adjournment in the manner required by 9 NYCRR 8005.17 (c) (1) and (2), she must accept responsibility for the September 25-October 2 delay. Relator’s counsel claims that she left a message with the parole officer in charge of relator’s case, prior to the September 25 hearing date, informing him that she would not be available on the morning of that date due to her required appearance at another correctional facility. The notice was legally insufficient, however, to put the Division on notice of counsel’s inability to attend the hearing. Indeed, the regulations were undoubtedly enacted for the purpose of precluding reliance on informal and unreliable forms of notice such as the one employed here. We note that the procedure established by 9 NYCRR 8005.17 (c) (2) — an oral request to the hearing coordinator followed by a letter sent to the hearing coordinator and the central office in Albany — is no more burdensome than the procedure employed by relator’s counsel.

We also find no merit in relator’s argument that the period from September 25 through October 2 should be chargeable to the Division of Parole because it did not inform relator at the September 25 hearing of his ability to proceed pro se. The cases upon which the relator relies: People ex rel. Martinez v Walters (99 AD2d 476) and People ex rel. Cleveland v New York State Div. of Parole (110 AD2d 671) are inapposite. They hold only that a parolee, who requests the assistance of counsel prior to the final revocation hearing, may, in the absence of counsel, effectively waive that right on the date of the hearing after being carefully informed of the consequences of the waiver. Although a parolee has a right to proceed pro se at a revocation hearing, failing to volunteer this alternative to a parolee does not result in a delay chargeable to the Division of Parole, when as here, there has been no request by the parolee to proceed pro se.

The Division of Parole relies upon its interpretation of 9 NYCRR 8005.17 (c) (3) in support of the argument that once it is determined that the failure to attend a scheduled hearing is chargeable to the parolee, then the Division has the implied power to set the length of the adjournment as long as it is reasonable. 9 NYCRR 8005.17 (c) (3) provides: "Where a postponement is granted at the request of or agreed to by an alleged violator or his counsel, or where an alleged violator or his attorney, by their actions preclude the prompt conduct of a final revocation hearing, the time in which to hold the hearing shall be extended by the length of the postponement or occasioned delay.”

Notwithstanding this rule, the Division cannot bypass an earlier available date at which a parolee’s counsel is willing and ready to proceed without establishing any justification for doing so.

In this case relator’s counsel appeared at Sing Sing on October 2, 1985, apparently under the impression that relator’s hearing would be held on that date since it was the next regularly scheduled hearing date after September 25. The notice of the rescheduled hearing states that it was not mailed to relator’s counsel until October 2, 1985, thereby giving her no opportunity to take steps to obtain a shorter period of adjournment. On these facts, respondent’s interpretation of the regulation renders meaningless the words "occasioned delay” in the phrase "the hearing shall be extended by the length of the postponement or occasioned delay”, since relator’s counsel’s failure to attend the September 25 hearing caused, at most, a one-week delay.

We therefore hold that when a parolee’s counsel is not given advance notice that the Division of Parole is bypassing the first available hearing date, any delay attributable to postponing the hearing beyond the first available date should be chargeable to the Division of Parole. The addition of the seven days covering the period between October 3, 1985 and October 9, 1985 to the undisputed 86 days chargeable to the Division, covering the period from the probable cause determination through the September 25 hearing date, supports the conclusion that relator was not afforded a timely revocation hearing.

Accordingly, in People ex rel. Brown v New York State Div. of Parole, the habeas corpus proceeding should be converted to an article 78 proceeding, the order of the Appellate Division reversed, the parole violation warrant vacated and the parole violation proceeding dismissed, without costs. In People ex rel. Citro v Sullivan, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

In People ex rel. Brown v New York State Div. of Parole: Habeas corpus proceeding converted to an article 78 proceeding, order reversed, without costs, parole violation warrant vacated and parole violation proceeding dismissed.

In People ex rel. Citro v Sullivan: Order affirmed, without costs.

       9 NYCRR 8005.17 provides in relevant part:
      "(c) Postponements and adjournments. (1) Application to postpone a previously scheduled final revocation hearing shall be made to the hearing coordinator at the local area office which scheduled the hearing at least seven days in advance of the scheduled hearing date. An application may be made either by an alleged violator who is not represented by an attorney or by an attorney for the alleged violator or by a representative of the division. The application shall be in writing and shall state the reason for the requested postponement. Such request may be granted for good cause shown.
      "(2) Where the application for postponement is not timely made pursuant to paragraph (1) of this subdivision, the request shall be granted only when exceptional circumstances are alleged to exist. The application may be made orally to the hearing coordinator in the local area office, but in such cases the applicant shall, within 10 days following the date of the granting of the request, file with the secretary of the board in Albany and with the hearing coordinator at the local area office a written statement setting forth, in detail, the reasons for the postponement.”