author:
      Per Curiam.
     Jasen, J.

text:
    The People of the State of New York, Respondent, v Eric Michael, Appellant.
    Argued June 4, 1979;
    decided July 10, 1979

      POINTS OF COUNSEL

      Laurence J. Kaiser for appellant.
    I. The sua sponte mistrial declaration predicated solely on convenience was prejudicial error. It improperly exposed defendant to double jeopardy in violation of the United States Constitution, the New York Constitution and the Criminal Procedure Law. (Matter of Girard v Rossi, 40 AD2d 13; People ex rel. Thomas v Judges of Family Ct. of State of N. Y., County of Kings, 85 Misc 2d 569; Matter of Kim v Criminal Ct. of City of N. Y., 77 Misc 2d 740, 47 AD2d 715; United States v Gordy, 526 F2d 631; Beasley v Thomas, 379 F Supp 195, 491 F2d 507, 417 US 955; Matter of Fonseca v Judges of Family Ct. of County of Kings, 59 Misc 2d 492; People v Singletary, 54 AD2d 767; United States v Perez, 9 Wheat [22 US] 579; Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114; Matter of Ferlito v Judges of County Ct., Suffolk County, 31 NY2d 416.) II. Defendant’s double jeopardy immunity is properly before this court on appeal. (People ex rel. Pendleton v Smith, 54 AD2d 195; Illinois v Somerville, 410 US 458; Himmelfarb v United States, 175 F2d 924; Schneckloth v Bustamonte, 412 US 218; Johnson v Zerbst, 304 US 458; Carnley v Cochran, 369 US 506; Barker v Wingo, 407 US 514; United States v Estremera, 531 F2d 1103, 425 US 979; United States v Sudduth, 458 F2d 1222, 409 US 871; People v Droz, 39 NY2d 457.) III. The mistrial was directed in the absence of Mr. Michael’s counsel. This alone infringed defendant’s constitutional right of counsel particularly at this critical stage, and requires dismissal of the indictment. (People v McLaughlin, 291 NY 480; People v Al-Kanani, 31 AD2d 838, 26 NY2d 473; People v Loiacono, 40 AD2d 856; People v Sykes, 23 AD2d 701; United States v Wade, 388 US 218; United States v Sudduth, 458 F2d 1222, 409 US 871; United States v Jorn, 400 US 470; United States v Dinitz, 424 US 600; People v Medina, 44 NY2d 199.) IV. There is no basis in the record for the finding that defendant was competent to stand trial. (People v Boundy, 10 NY2d 518; Pate v Robinson, 383 US 375; People v Francabandera, 33 NY2d 429; Dusky v United States, 362 US 402; People v Valentino, 78 Misc 2d 678; People v Swallo, 60 Misc 2d 171; People v Posey, 74 Misc 2d 149.) V. The court erroneously charged the jury on the issue of defendant’s intoxication. (People v Jackson, 14 NY2d 5; People v Cook, 51 AD2d 1072; People v Trisvan, 49 AD2d 913; People v Orr, 43 AD2d 836, 35 NY2d 829; People v Carlo, 46 AD2d 764; People v Morrison, 58 AD2d 699; People v Lee, 35 NY2d 826; People v Valentine, 54 AD2d 568.)

      Robert M. Morgenthau, District Attorney (Donald J. Siewert and Robert M. Pitler of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt. II. Appellant’s claim that the Trial Judge abused his discretion in declaring a mistrial is not properly before this court. In any event, the mistrial was necessitated by the absence of appellant’s counsel. Appellant was therefore not subjected to double jeopardy in being retried. (People v La Ruffa, 37 NY2d 58, 423 US 917; Menna v New York, 423 US 61; United States v Perez, 565 F2d 1227; People ex rel. Pendleton v Smith, 54 AD2d 195; People v Patterson, 39 NY2d 288; People v Berrios, 28 NY2d 361; People v Esajerre, 35 NY2d 463; Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114; Matter of Napoli v Supreme Ct. of State of N. Y., 40 AD2d 159, 33 NY2d 980, 417 US 947.) III. Appellant was not deprived of the assistance of counsel below. (People v Kelly, 60 AD2d 220, 44 NY2d 725.) IV. The Trial Judge’s refusal to permit the jury to consider evidence of appellant’s intoxication on the counts of rape and sodomy was proper. There was insufficient evidence to support an intoxication charge on these counts. Even if the Judge’s refusal to instruct the jury that they might consider appellant’s intoxication on the rape and sodomy charges was incorrect, appellant was not prejudiced by the error. (Dudley v Nowill, 11 App Div 203; People v Yannucci, 283 NY 546; People v Vicaretti, 54 AD2d 236; People v Koerber, 244 NY 147; Henry v United States, 432 F2d 114, 434 F2d 1283, 400 US 1011; People v Orr, 43 AD2d 836, 35 NY2d 829; People v Morrison, 58 AD2d 699; People v Kastenhuber, 57 AD2d 655.) V. The finding at appellant’s first trial that he was competent to stand trial was supported by the record. (People v Carl, 58 AD2d 948, 46 NY2d 806; People v Francabandera, 33 NY2d 429; People v Valentino, 78 Misc 2d 678; People v Santos, 43 AD2d 73.)
   OPINION OF THE COURT

Per Curiam.

Defendant raises a substantial double jeopardy claim and seeks reversal of an order of the Appellate Division which affirmed his conviction, upon a second trial, of several counts of robbery, burglary, rape and sodomy arising from an incident which occurred in Manhattan on April 25, 1975. Defendant was first put on trial for these crimes in July of 1975, together with one France Dugne, also accused of participating in the same criminal activities. During the course of that trial, the court sua sponte declared a mistrial as to defendant Michael, without obtaining his consent and in the absence of his counsel, because of certain circumstances discussed in detail below. Defendant now contends that the retrial which resulted in the convictions which he now seeks to have overturned was barred by application of the prohibitions against double jeopardy contained in our State and the Federal Constitutions (NY Const, art I, § 6; US Const, 5th Arndt). As we are persuaded that defendant’s arguments are correct, it is our unpleasant duty to reverse the order appealed from and order that the indictment charging defendant with these serious crimes of violence be dismissed solely because of the trial court’s abuse of its authority to declare a mistrial.

Before discussing the merits of defendant’s double jeopardy defense, we must first determine whether it presents a question of law reviewable by this court. In criminal cases the Court of Appeals, unlike the Appellate Divisions, may only review questions of law, except in capital cases (compare CPL 470.35 with CPL 470.15 and CPL 470.30). CPL 470.05 (subd 2) provides that "[fjor purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. * * * In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered”. Defendant Michael failed to raise any double jeopardy claim before or at trial, and instead sought to raise it for the first time on appeal. Hence, his claim does not present a question of law reviewable in this court unless it falls within the small group of claims so fundamentally basic that they constitute questions of law for purposes of our review despite the failure to raise them in a timely manner.

There exist certain narrowly drawn exceptions to the general rule that a timely objection or request is necessary to create a question of law reviewable by this court, for certain principles of law are deemed so fundamental to our criminal justice system that a claimed violation of those principles creates a question of law despite the failure to timely raise that claim in the courts below (see People v Patterson, 39 NY2d 288, 294-296, affd 432 US 197). The requirement that a claim must be timely raised in order to create a question of law is grounded in large part in the need to preserve limited judicial resources and avoid untoward delay in the resolution of criminal proceedings. Certainly, every defendant must be provided at least one opportunity to assert any defense or any claim that the proceedings against him are in some way tainted by a violation of the law. At the same time, the very real interest of the State in achieving finality in a criminal prosecution mandates that such objections be timely raised. Any other rule would serve as an invitation to delay and could result in an unmanageable morass of collateral proceedings within each prosecution. Hence, it is both proper and necessary for the State to require that all such objections be raised at a time when they can be dealt with most readily. At the same time, there exist certain rules of law, be they founded on the common law, prescribed by statute, or mandated by our Constitutions, which are so basic to the validity of a criminal proceeding that the failure to observe such a rule may be raised at any time during the appellate process.

Turning now to the exigencies of the instant appeal, we must first determine whether a claim that the constitutional prohibitions against double jeopardy have been violated poses a question of law reviewable in this court despite the failure to raise that defense before the trial court. We conclude that it does, for double jeopardy implicates the very power of the State to prosecute a particular defendant for a particular crime and serves as an important check on the potential power of the State to intimidate its citizenry. The constitutional prohibition against double jeopardy is fundamental not only to the process of criminal justice, but to our system of government itself. It is, moreover, a doctrine with obvious jurisdictional overtones. That this is so at least in this State is strongly suggested by the fact that double jeopardy is a traditional ground for obtaining the extraordinary remedy of prohibition (e.g., Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114), which normally lies only where there is an attempt to act without or in excess of jurisdiction (see Matter of B. T. Prods. v Barr, 44 NY2d 226, 231; La Rocca v Lane, 37 NY2d 575; Note, Writ of Prohibition in New York — Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76). Although a double jeopardy objection may be waivable (see Menna v New York, 423 US 61, 63, n 2; People v La Ruffa, 37 NY2d 58, cert den 423 US 917) in certain unusual cases, as where a defendant explicitly consents to retrial despite a double jeopardy defense, double jeopardy nonetheless has strong ties to the concept of jurisdiction, and that, taken together with the significance of the prohibition as a bulwark against governmental overbearing, compels us to hold that a double jeopardy defense based on the State and Federal Constitutions poses a question of law reviewable in this court despite the failure to raise it at the trial level. This conclusion is supported by an examination of the double jeopardy defense in light of the rationale supporting the general rule requiring that an issue be timely raised: namely, the avoidance of unduly prolonged proceedings and the possibility of repeated trials. The State’s legitimate interests are not seriously touched by allowing a constitutional double jeopardy claim to be raised for the first time on appeal, since such a claim, even if successful, will not result in repeated proceedings, as it is the very essence of a successful double jeopardy defense that there are no further proceedings. Similarly, there will be no need for any additional factual findings in such cases, as such a defense is made out from the record of the prior proceedings and entails no factual inquiry. Finally, double jeopardy does not constitute the type of error which can be remedied so as to allow the trial to proceed in accordance with law if it is timely raised, for such a defense, if valid, is simply not correctable.

Having determined that defendant’s constitutional double jeopardy claim does present a question of law reviewable by this court, we next turn to the merits of that defense. The factual basis for defendant’s argument is both simple and sad. One morning several days after the commencement of defendant’s first trial, the court received a phone call from the office of defendant’s attorney, notifying the court that the attorney’s father had died unexpectedly during the night and the attorney would be unable to appear in court that day. When the case was called, the court informed the prosecutor and counsel for the codefendant of this problem, and asked their advice. The prosecutor suggested that the case be adjourned until defendant’s counsel could return. The court stated that it would instead probably declare a mistrial since it was impossible to continue the trial in the absence of defense counsel, and an adjournment was not feasible because the trial had to terminate by the end of the week since the court and several members of the jury had made vacation plans for the following week. It was then Tuesday, and the court was of the opinion that even a single day’s delay would make it impossible to complete the trial by that Friday. Accordingly, it believed a mistrial to be necessary at least as to this defendant. The court apparently also considered declaring. a mistrial as to the codefendant as well, because it was possible that even though the trial could continue apace against him it too might not be completed by Friday. Eventually, however, the court decided to continue the trial as to codefendant in the hope that it would indeed end by Friday, but to declare a mistrial as to defendant Michael. During this discussion, in which the defendant had no part, both the prosecutor and counsel for the codefendant suggested to the court that to declare a mistrial might create a double jeopardy problem. The court’s initial reaction to this possibility was to tell the prosecutor that that was the People’s problem, not the court’s, and to criticize the prosecutor for not having accepted defendant’s offer to plead guilty to a lesser charge instead of "wasting” the court’s time with a trial. Subsequently, the court indicated that it believed there would be no double jeopardy problem because it was impossible to continue with the trial.

Defendant was ultimately retried and convicted. The Appellate Division affirmed his conviction, without opinion, and leave to appeal was granted by an Associate Judge of this court. While defendant raises several claims of error, we deem it necessary to consider only his double jeopardy argument for our recognition of the validity of that defense mandates a dismissal of the charges against defendant. Accordingly, we do not reach his other arguments.

Where a court declares a mistrial without obtaining the defendant’s consent the double jeopardy provisions of both our State Constitution and the Federal Constitution prohibit retrial for the same crime unless "there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated” (United States v Perez, 9 Wheat [22 US] 579, 580; accord Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114, 119, supra). These principles have to some extent been codified in CPL 280.10 (subd 3), which allows a court to declare a mistrial on its own motion only "when it is physically impossible to proceed with the trial in conformity with law”. Since the Trial Judge is in the best position to determine whether a mistrial is in fact necessary in a particular case, that court is entrusted with discretion in this area, and deference is to be accorded the Trial Judge’s decision to declare a mistrial (Matter of Napoli v Supreme Ct. of State of N. Y., 33 NY2d 980, affg on opn below 40 AD2d 159; Arizona v Washington, 434 US 497, 513-514; Gori v United States, 367 US 364).

Nonetheless, a mistrial founded solely upon the convenience of the court and the jury is certainly not manifestly necessary. While the court could not have continued defendant’s trial in the absence of defense counsel, a delay of several days would certainly appear to have been reasonable, despite any inconveniences it might have imposed upon the court and some jurors. Rather than considering this alternative seriously, the court sua sponte and unfortunately declared a mistrial. That decision constituted an abuse of discretion. A defendant’s right to have his fate determined as expeditiously as possible and by the first jury to which the case is presented is a basic one, and may not be set aside without strong reason. While it is unfortunate that the travel plans of the court and several jurors might have been disrupted, such inconvenience is a necessary part of our criminal justice system. One who accepts the responsibility of the robe must be prepared at times to put aside his or her own desires and plans in response to the call of public duty. Weighed in the balance of judicial obligations, a necessary change in travel plans is of little significance.

Similarly, a citizen called to jury duty will often be required to make some personal sacrifices, financial or otherwise. This usually seems unjust to those so called upon, and in fact it sometimes is unjust, but it is necessary as long as we are to persist in our cherished belief that an accused felon is entitled to be tried by a jury of his peers. This does not mean that juror discontent will never justify a mistrial. Indeed, if a jury becomes biased against a defendant as a result of the length of the trial or for some other reason, and is unable to fairly consider that defendant’s guilt or innocence, the court is then required to declare a mistrial. Such cases, however, are rare, for a distinction must be drawn between the ordinary pique of a juror at being forced to postpone his or her normal pursuits, and that inability to fairly view the evidence which mandates a mistrial. Most jurors will remain faithful to their oath and put aside their personal grievances in the attempt to reach a fair verdict. Were this not so, the jury system would be a mockery, for there are few jurors who would not prefer to be elsewhere.

The decision whether a mistrial is necessary because of juror bias if often based on subtle indications of discontent, not always apparent on the cold face of the record presented to an appellate court. Hence, as is noted above, a Trial Judge is entrusted with considerable discretion in making such determinations, for it is the Trial Judge, better than any other, who can detect the ambience of partiality. In such cases, moreover, it is often better to err on the side of caution, for retrial is a lesser evil than conviction by a biased jury. The court’s discretion in making such decisions, however, is not unlimited. Where, as here, the decision to declare a mistrial is based solely on the fact that a delay in trial would inconvenience the court and the jury, and without any inquiry into the effect of such a delay on the jury’s ability to render a fair verdict, discretion falters and abuse appears.

In short, our examination of the trial record persuades us that it was not at all necessary to declare a mistrial at the time that decision was made, although it is not inconceivable that a mistrial might have eventually become a necessity had defense counsel’s absence continued unduly. Hence, the retrial of this defendant for the same crimes was prohibited by the Constitutions of both New York and the United States, and these constitutional prohibitions against double jeopardy mandate reversal of defendant’s conviction and dismissal of the indictment.

Accordingly, the order appealed from should be reversed and, perforce, the indictment should be dismissed.

Jasen, J.

(dissenting). I would affirm the order of the Appellate Division on the ground that defendant, in not asserting the defense of constitutional double jeopardy prior to or during his second trial, in effect "waived” this personal defense (People v La Ruffa, 37 NY2d 58, cert den 423 US 917) by failing to preserve an issue of law reviewable by this court. (CPL 470.05, subd 2; People v Iannone, 45 NY2d 589, 600.)

As we recently stated in People v La Ruffa (37 NY2d 58, 60-61, supra) in reaffirming a deeply rooted body of case law, both State and Federal, the "constitutional immunity from double jeopardy is a personal right which if not timely interposed at trial may be waived (e.g., Kepner v United States, 195 US 100, 131; United States v Perez, 565 F2d 1227, 1232; United States v Young, 503 F2d 1072, 1074; United States v Conley, 503 F2d 520, 521; United States v Scott, 464 F2d 832, 833; United States v Buonomo, 441 F2d 922, 924, cert den 404 US 845; Grogan v United States, 394 F2d 287, 289, cert den 393 US 830) and which likewise may be forfeited by a plea of guilty (Cox v State of Kansas, 456 F2d 1279, 1280; Kistner v United States, 332 F2d 978, 980; United States v Hoyland, 264 F2d 346, 351, cert den 361 US 845; Berg v United States, 176 F2d 122, 125, cert den 338 US 876; Caballero v Hudspeth, 114 F2d 545, 547). Such has long been the law in this State as well. (Former Code Crim Pro, §§ 332, 339; CPL 210.20; see People v Cignarale, 110 NY 23, 29; People ex rel. Williams v Follette, 30 AD2d 693, affd 24 NY2d 949; People v Lynch, 40 AD2d 856; People v Allen, 18 AD2d 840.)”

Today, the majority without paying so much as lip service to principles of stare decisis (see Baden v Staples, 45 NY2d 889; People v Hobson, 39 NY2d 479), blithely casts aside this body of law in holding that defendant’s claim of double jeopardy presents a question of law reviewable by this court notwithstanding his failure to assert this defense either prior to or during the course of his second trial. To accomplish this task, the majority strains to force the defense of double jeopardy into a narrowly drawn exception to our State preservation requirement carved from the general rule to permit appellate review, notwithstanding the absence of timely objection, of an alleged violation of certain principles of law deemed fundamental to the administration of criminal proceedings. Support for this unenviable task, apparently culled from People v Patterson (39 NY2d 288, affd 432 US 197), is misplaced.

In Patterson, we characterized the narrow exception to the preservation requirement mandated by statute (CPL 470.05, subd 2) as encompassing claimed errors which affect the organization of the court or the mode of proceedings prescribed by law. (39 NY2d, at p 295, supra.) As examples of this type of error, we pointed to the trial of a defendant before a jury of less than 12 members (Cancemi v People, 18 NY 128), and prosecution by information of an "infamous” crime where the State Constitution guaranteed such prosecution only by Grand Jury indictment (People ex rel. Battista v Christian, 249 NY 314). A claim of double jeopardy, although conceptually related to jurisdiction, does not go to either the organization of the court nor its mode of proceedings and, thus, is not reviewable in this court absent a timely objection in the trial court. Nothing in Patterson suggests that we intended to depart from our implicit holding in La Ruffa to this effect.

Nor does the majority demonstrate any sound reason for such departure. As we stated in Patterson, "[sjtrict adherence to the requirement that complaint be made in time to permit a correction serves a legitimate State purpose. (Henry v Mississippi, 379 US 443, 447.) A defendant cannot be permitted to sit idly by while error is committed, thereby allow the error to pass into the record uncured, and yet claim the error on appeal. Were the rule otherwise, the State’s fundamental interest in enforcing its criminal law could be frustrated by delay and waste of time and resources invited by a defendant.” (39 NY2d, at p 295, supra.) In this regard, the majority’s contention that the State’s legitimate interests are not seriously affected by permitting assertion of a double jeopardy claim for the first time on appeal because, if successful, a defendant will not put the State to the task of retrying him a third time misses the point. Had the defendant in this case raised the claim of double jeopardy successfully at his second trial, the State would not have needlessly expended its time and money trying him a second time. It is just such delay and waste of time and resources, as well as inconvenience of witnesses, which the requirement that a defendant timely object to claimed error in the trial court was intended to obviate.

Finally, to preclude defendant from raising his claim in this court does not impermissibly impair his constitutional right not to be twice placed in jeopardy. In People v La Ruffa (37 NY2d 58, cert den 423 US 917, supra), we predicated our decision on two closely related, but conceptually distinct, grounds: first, that the defendant waived his constitutional defense of double jeopardy by failing to raise it prior to pleading guilty; and, second, that in not timely asserting this defense he in effect "waived” it by failing to preserve an issue of law reviewable by this court. In Menna v New York (423 US 61), the Supreme Court held that a defendant who unsuccessfully raises a defense of double jeopardy prior to pleading guilty does not, without more, waive his right to assert that claim thereafter. Although Menna does preclude a finding in the instant case that defendant waived his defense of constitutional double jeopardy in the sense of a knowing abandonment of this claim (see Johnson v Zerbst, 304 US 458), the Supreme Court’s denial of certiorari in La Ruffa (423 US 917), while certainly not unequivocal in significance, permits the inference that the court found constitutionally unobjectionable our holding in La Ruffa that the defendant in effect "waived” his double jeopardy claim by failing to raise timely this issue and thereby preserve an issue of law reviewable by this court. I see no valid reason for departing from that holding today.

Accordingly, I would affirm the order of the Appellate Division.

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

Order reversed, etc.

      . It has been suggested that by failing to raise his double jeopardy claim at the trial level defendant waived that defense. While the question of waiver as a practical matter is often inextricably intertwined with the determination whether a defendant has preserved a question of law reviewable by this court, the two inquiries are conceptually distinct (see People v Iannone, 45 NY2d 589, 600). Whether a question of law reviewable in this court exists in a particular case is peculiarly a matter of State law, involving as it does limitations upon the powers of this court. While the same could well be said of the issue of waiver of any claim founded solely upon the New York State Constitution, questions concerning waiver of a right guaranteed under the Federal Constitution are essentially matters of Federal law. The Supreme Court of the United States has quite clearly held that a guilty plea, which constitutes a waiver of many other rights and privileges, may not serve as a waiver of a double jeopardy claim (Menna v New York, 423 US 61). Since the failure to raise a particular defense is a much more equivocal indication of intent than is the decision to plead guilty, it would appear to follow that the failure to timely raise a double jeopardy claim cannot alone serve as a waiver of that claim.

      . We note that this conclusion does not conflict with our holding in People v La Ruffa (37 NY2d 58, cert den 423 US 917). In that case we were concerned solely with the question whether a guilty plea could constitute a waiver of a double jeopardy claim. Our holding in that case was not based on the purported absence of a question of law, as is now suggested by the dissent. Indeed, implicit in our holding in La Ruffa is the suggestion that a question of law is presented by a constitutional double jeopardy claim even if that claim was not timely raised, for we could not have reached the question of waiver had the case not presented a question of law. In short, had La Ruffa’s double jeopardy claim not constituted a question of law reviewable in this court, the discussion of waiver in that decision would have been irrelevant to the disposition of that appeal.


source: Caselaw Access Project

author:
      Per Curiam.
     Fuchsberg, J. Meyer, J.

license: Public Domain

text:
    In the Matter of Paul N. Higby, Appellant, v Edward J. Mahoney et al., Constituting the Board of Elections of Erie County, et al., Respondents.
    Submitted August 29, 1979;
    decided September 4, 1979

      POINTS OF COUNSEL

      Richard T. Sullivan and Arthur A. Russ for appellant.
    Petitioner has substantially complied with section 6-132 of the Election Law and his designating petitions must be validated. (Matter of Vari v Hayduk, 42 NY2d 980; Matter of Rosen v McNab, 25 NY2d 798; Matter of Ferris v Sadowski, 45 NY2d 815; Matter of Weiss v Mahoney, 49 AD2d 796; Matter of Acito v Power, 17 AD2d 710; Matter of Berger v Acito, 64 AD2d 949.)

      T. J. Szymanski, County Attorney (Roger D. Avent of counsel), for respondents.
    I. This court has stated it is a fatal defect invalidating all the signatures of a designating petition when the witness to such a petition either incorrectly states or omits his assembly district, therefore, the order of the court below invalidating the petition should be affirmed. (Matter of Morris v Hayduk, 45 NY2d 793; Matter of Vari v Hayduk, 42 NY2d 980; Matter of Rutter v Coveney, 38 NY2d 993; Matter of Weiss v Mahoney, 49 AD2d 792; Matter of Crosbie v Cohen, 281 NY 329; Matter of Boyarsky v Cohen, 289 NY 630; Matter of Hall v Heffernan, 295 NY 599; Matter of Young [Socialist Party], 296 NY 683; Gordon v Catania, 34 NY2d 964.) II. This case is not factually distinguishable from Rutter and Vari and, therefore, those cases control and the order of the court below invalidating the petition should be affirmed. III. The uncontroverted affidavit of Paul Higby presented questions of fact that were not ruled on in Special Term and, therefore, not a proper matter before this court.
   OPINION OF THE COURT

Per Curiam.

By this proceeding petitioner seeks to have validated a designating petition filed with the Erie County Board of Elections for the purpose of having his name placed on the official Republican Party primary ballot and voting machines as a candidate for nomination by that party for the office of Councilman in the Town of Orchard Park. The board sustained objections filed against the designating petition for failure of the subscribing witnesses to set forth the assembly district in which they were resident as required by subdivision 1 of section 6-132 of the Election Law, and rejected the petition. Supreme Court, Erie County, granted an order in this proceeding directing the board to validate the petition and place petitioner’s name on the ballot and voting machines, but the Appellate Division (71 AD2d 1047) reversed the lower court’s order and dismissed the validation proceeding. It is undisputed that the Town of Orchard Park is wholly within a single assembly district. The claim is made that by reason of this circumstance the omission of assembly district number should not serve to invalidate the petition and that precedents to the contrary should be overturned.

The precise substantive issue tendered on this appeal has thrice been resolved against appellant’s position in the last three years by this court (Matter of Rutter v Coveney, 38 NY2d 993; Matter of Vari v Hayduk, 42 NY2d 980; and Matter of Morris v Hayduk, 45 NY2d 793). The arguments now articulated by the dissenters were those rejected in Rutter (cf. dissenting opn 38 NY2d 994) and again in Vari. In Morris special emphasis was placed by the appellant on the revisions made in recodification of the Election Law. We nonetheless declined the invitation to overrule our prior decisions, concluding that no change was required by the recodification.

The doctrine of stare decisis does not, of course, demand unyielding resignation to even recent precedent. Policy considerations are inherent in the prudent, considered application of the doctrine. (People v Hobson, 39 NY2d 479.) Whether it is appropriate for the courts to overturn judicial precedent must depend on several factors. Among them will be the nature of the rights and interests at stake and the extent and degree to which action may justifiably have been taken in reliance on the precedent (Matter of Eckart, 39 NY2d 493, 500; People v Hobson, 39 NY2d 479, 488-489, supra). In addition to such familiar considerations but apart therefrom, weight may properly be attached to the relative ease or difficulty of modification or change in the precedent. Invitations to judicial reconsideration carry more weight when addressed to constitutional issues because of the very great difficulty of effecting change by constitutional amendment. By contrast the courts show greater restraint in stepping in to undertake correction of what may be perceived as erroneous determinations with respect to questions arising under legislative enactment. In addition to the relative ease of accomplishing statutory change, this hesitancy may be grounded in either or both of two additional considerations. First, the Legislature has far greater capabilities to gather relevant data and to elicit expressions of pertinent opinion on the issues at hand and its members are properly politically responsive to the electorate. Second, and of greater significance, under our polity of government and distribution of powers, responsibility for making the policy decisions inherent in the adoption of the original legislative provision was, by its very nature, vested in the legislative branch. As we have recently said: "Precedents involving statutory interpretation are entitled to great stability (Matter of Schinasi, 277 NY 252, 265-266; see 20 Am Jur 2d, Courts, § 198). After all, in such cases courts are interpreting legislative intention and a sequential contradiction is a grossly aggregated legislative power. Moreover, if the precedent or precedents have 'misinterpreted’ the legislative intention, the Legislature’s competency to correct the 'misinterpretation’ is readily at hand.” (People v Hobson, 39 NY2d 479, 489, supra.)

Consideration of some of the decisions of our court illustrates the principles involved. A pertinent example is found in Matter of Eckart (39 NY2d 493, supra). In Matter of Cairo (29 NY2d 527) our court had accepted a construction of statute (EPTL 5-3.3) which thereafter was widely criticized. Five years later in Eckart, in an indistinguishable case presenting the same issue, we followed the Cairo precedent with the observation, "[i]f there is to be a constructive change it should come from the Legislature” (39 NY2d 493, 502). Similarly in People v Butts (32 NY2d 946) and again in People v Cicale (35 NY2d 661), we rejected vigorous arguments that in People v Carter (31 NY2d 964) sections 207 and 208 of the Mental Hygiene Law had been erroneously interpreted. While it may be that in the face of continued and continuing legislative inattention or inertia the courts may properly step in to effect a change in statutory interpretation (e.g., Hall v Coburn Corp. of Amer., 26 NY2d 396; followed by Moore v Metropolitan Life Ins. Co., 33 NY2d 304; and then Ray v Marine Midland Grace Trust Co., 35 NY2d 147), such instances are the exception rather than the rule.

It is pertinent that even where the rule of law at issue is of judicial rather than legislative origin, if change by legislative action is available, our courts are hesitant to effect recommended change. Thus in Codling v Paglia (32 NY2d 330) we declined the invitation to substitute a rule of comparative negligence for the much criticized doctrine of contributory negligence. Subsequently the Legislature enacted the desired change (L 1975, ch 69). More recently in Baden v Staples (45 NY2d 889) we rejected importunings to eradicate the asserted error of Seider v Roth (17 NY2d 111; see Simpson v Loehmann, 21 NY2d 305; and Donawitz v Danek, 42 NY2d 138). On this subject, however, to date there has been no legislative action.

In thé present instance deference to the Legislature to enact change, if indeed change there should be, is peculiarly fitting. Insistence on inclusion of the correct assembly district number itself cannot properly be classified as involving any substantial obstacle or threat to the exercise of the constitutional right of franchise. All that needs to be done to assure the unfettered access to that right is to heed the mandate of the statute as uniformly interpreted by the court — i.e., insert the correct assembly or election district number, not a very demanding task. Contrast the unavailability of any such self-help alternative in the instances where judicial relief was denied in Eckart, Cicale, Moore, Codling and Baden. There is nothing to indicate that strict compliance with the precise requirements of this statute as interpreted is not readily accomplished on the great bulk of designating petitions. It is only the careless or inadvertent failure to follow the mandate of statute and case law which gives rise to the complaints that come before us.

To suggest, as do the dissenters, that the number of cases posing this issue which appear on our calendars is significant is not persuasive. There is no indication that this is the tip of any iceberg. Rather the situation is likely to be quite the reverse; because of inherent disposition to contest and the availability and relatively smaller cost of legal services it may more realistically be assumed that the courts are likely to see virtually every instance where our interpretation of this statute is claimed to have worked a deprivation of political rights.

At the jurisprudential level the issue is even clearer. The Legislature has peculiar responsibility under our polity for prescribing the regulation which should guide political affairs and the activities of political parties, subject only to the constraints of constitutional mandate. In the construct of any political philosophy under our polity, to the extent that government is involved in elective processes, the role of the legislative branch must be recognized as paramount. Moreover, whatever reality there may be to assertions of the Legislature’s indifference or unconcern in other narrow areas, there can be no substance to any suggestion that our legislators are disinterested in election matters.

Accordingly, even if one were to be persuaded that the dispositions in Rutter, Vari and Morris were in error, it would be judicially irresponsible for the court to overturn the interpretation of the 1977 recodification of the Election Law announced as recently as one year ago.

Fuchsberg, J.

(dissenting). My analysis of the underpinnings and consequences of the court’s decision in Matter of Rutter v Coveney (38 NY2d 993) having been set forth "before the fact” when I coauthored the dissent in that case, I find no need to repeat them here. And, out of respect to the general principles of stare decisis and, of course, the possibility that my prognosis would prove wrong, until today I deferred to subsequent reiterations of that pronouncement as prevailing law. Now, after four years of experience in its practical effect on the electoral process of our State, I am convinced that, the majority’s laments notwithstanding, on striking the balance that the doctrine of stare decisis itself permits, I must now vote for a return to the status quo ante. In doing so, I venture some comments on stare decisis as applied in the context of the present case.

But first a few words about the facts, representative as they are of a train of appeals that has followed in the wake of Rutter. Petitioner gathered almost twice the number of signatures needed to designate him a candidate, doing so in petitions whose subscribing witnesses listed their names, addresses, political affiliations and town election districts with accuracy. True, they did not insert the number of their assembly district. But, since the town in which this local election is to be held is entirely within a single assembly district so that each witness must be registered therein, its omission, as conceded at oral argument, in no way could, or did, impede the pursuit of any inquiry — whether launched by the board, an opposing candidate or anyone else — to ferret out either fraud or other reasons that would disqualify the signatories from participating in the electoral process. To add to the unfairness in invalidating his petitions on account of this perfectly "harmless error”, the petitioner, upon inquiry, had been advised by one of the board’s deputy” election commissioners that the assembly district need not be indicated on petitions for a town election. It comes as no surprise, therefore, that, in reversing a direction by the Supreme Court, Erie County, that petitioner’s name be placed on the ballot, the Appellate Division (71 AD2d 1047), unanimously proclaiming its reluctance and acting within its confines as an intermediate appellate court, did so only "under constraint of [Matter of Vari v Hayduk, 42 NY2d 980] * * * and similar holdings [in the Court of Appeals]”.

Stare decisis, to its credit, is a far more subtle and flexible concept than some of those who would give it slavish adherence suggest. Its limitations are inherent, for the stability it espouses must coexist with both the dynamics of an evolving society and the accruing wisdom born of the repeated injustices which a particular ruling has wrought (see Cardozo, The Nature of the Judicial Process [1921 ed], pp 149-152). To that end, its temper partakes more of the malleability of gold than of the rigidity of steel. How else do we narrow the gap between the social philosophy of the present and the law of the past? So Justice Brandéis cautioned that stare decisis does not carry "a universal, inexorable command” (Washington v Dawson & Co., 264 US 219, 238), and Justice Frankfurter wrote of the need to reject the idea of a "disability at self-correction” (Helvering v Hallock, 309 US 106, 121).

Significantly, the increasing flow of instances in which Rutter has been producing frustrating disenfranchisement demonstrates that, in the context of petition-gathering by and among often inexperienced citizens, the hypertechnical strictures which that decision dictates are unrealistic (in addition to Vari, supra, see, e.g., Matter of Morris v Hayduk, 45 NY2d 793; Matter of Klemann v Acito, 45 NY2d 796; Matter of Alper v Hayduk, 45 NY2d 809; Matter of De Bruin v McGee, 40 NY2d 909; Matter of Flanagan v Schwartz, 40 NY2d 910; Matter of Neuberger v Anderson, 64 AD2d 933; Matter of Jones v New York State Bd. of Elections, 64 AD2d 950, revd 45 NY2d 791; Matter of Cox v Wells, 57 AD2d 635; cf. Matter of Berry v Dodd, 38 NY2d 995; Matter of Berger v Acito, 64 AD2d 949; Berger v Acito, 457 F Supp 296).

The quality of the rights involved in such cases also emphasizes why we should act now. In our society, few prerogatives are more to be valued than the right to vote and to stand for public office. A rule that invalidates petitions for errors that are neither substantial, prejudicial to other candidates, or reasonably detrimental to the ability to promptly ascertain the validity of signatures infringes on that right. In these circumstances, to say the least, the outposts of a fundamental constitutional right indeed are at stake. In such a case, public policy must outweigh stability for stability’s sake.

Even if this were not so, it does not follow from the fact that a legislative enactment is implicated here that there exists, as the majority suggests, a "relative ease of accomplishing statutory change” (at p 18). First, the Legislature may have been ready to throw up its hands when Rutter and Morris rebuffed its attempts at liberalization of the petitioning process. Second and most important, while the Legislature has an interest in the elective process, it is hardly one free of political considerations. After all, most of the members of the Legislature, especially its leaders, are veterans of several reelection campaigns. They are not likely to be unaware that the sterner the rules, the more they are advantaged vis-á-vis independents and other challengers to their continuance in office. Given this inchoate conflict of interest, so often a part and parcel of the legislative office (see, generally, O’Malley v Macejka, 44 NY2d 530, 533-534), unlike the majority I am not prepared to yield paramountcy to the Legislature in the guardianship of the elective process. To the contrary, the greatest contribution of the American judiciary may very well be said to be the protection it has afforded the individual against the inroads of an ever-enlarging government.

Moreover, involved here is a continuing, prospective right in the field of public law rather than one centering on a private interest in property, contract, trust or will entered into in expectation of an unchanging law. In this case, stare decisis, molding itself to the task at hand, would require closer examination of the so-called "binding precedent” (see Pratt v Brown, 3 Wis 603, quoted in Pound and Plucknett, Readings on the History and System of the Common Law, p 275). For here, it seems to me, we are called upon "to look precedent in the teeth and to measure it against the ideals and aspirations of [our] time” (Schaefer, Precedent and Policy, 34 U Chicago L Rev 3, 23).

For all these reasons, I conclude that a pragmatic appreciation of the complexities of the petitioning process and the rights of candidates and voters calls upon us to return to our traditional stance of demanding but substantial compliance with the Election Law (see Matter of Rosen v McNab, 25 NY2d 798; see, generally, Abrahams, New York Election Law, pp 150-152; People v Hobson, 39 NY2d 479, 487-488).

Accordingly, the order of the Appellate Division should be reversed and that of Special Term validating the petition reinstated.

Meyer, J.

(dissenting). Recognizing, as Chief Judge Breitel put it in his eloquent exegesis on stare decisis in People v Hobson (39 NY2d 479, 491) that "the accident of a change in personalities in the Judges of a court is a shallow basis for jurisprudential evolution”, I would concur on constraint of the precedents on which the majority rely were it not that there are, in my view, strong reasons grounded in considerations of both stare decisis and statutory construction for not doing so.

The essence of stare decisis is the value of stability in the law so that those who are governed by it may act in reliance upon the fact that it will not be lightly overturned. But the doctrine is "not a mechanical formula of adherence to the latest decision, however recent,” (Helvering v Hallock, 309 US 106, 119). Thus, we have consistently recognized the duty to re-examine a prior determination which is contrary to reason (Matter of Eckart, 39 NY2d 493, 499; Rumsey v New York & New England R. R. Co., 133 NY 79, 85), and have, accordingly, overruled an election law interpretation only four and one-half months after it was handed down (Matter of Turner v Lawley, 25 NY2d 963, decided Oct. 28, 1969; overruling Matter of Gaines v Board of Elections, 25 NY2d 807, decided June 11, 1969).

Departure from prior precedents is not only authorized but required when the court is "satisfied, in the first place that they were wrongly decided, and in the second place, that less mischief will result from their overthrow than from their perpetuation” (Black, The Law of Judicial Precedents [1912 ed], p 10; see Matter of Eckart, supra, at p 493). Important in determining when prior decisional law must be followed and when it may be departed from are the nature of the interest involved (People v Hobson, supra, at p 489), "whether the law is serving its true function — the achievement of justice according to law” (Loughran, Some Reflections on the Role of Judicial Precedent, 22 Fordham L Rev 1, 16), the intrinsic quality of the precedent relied upon (Schaefer, Precedent and Policy, 34 U Chicago L Rev 3, 10), whether it is grounded in sound public policy, is working well or badly, will create injustice in the particular case (Kenison, Some Preliminary Observations on the State Appellate Judge Today, 61 Col L Rev 792, 795).

Examined in the light of these considerations, the precedents upon which the majority rely simply do not measure up. The citizen’s right to run for public office as well as his or her right to vote are deemed so significant in our system of government that a State statute impeding the right of access to the ballot will not be accorded the usual presumption of constitutionality (Kramer v Union School Dist., 395 US 621, 627; see, also, Lubin v Panish, 415 US 709; Kusper v Pontikes, 414 US 51; Dunn v Blumstein, 405 US 330; Bullock v Carter, 405 US 134; cf. Matter of Ramos v Alpert, 41 AD2d 1012, 1014, affd 32 NY2d 903). A precedent which results in the frustration of the right to become a candidate for office is, therefore, by its very nature suspect. The interests that will be impeded by reversal of Matter of Morris v Hayduk (45 NY2d 793) and its predecessors, can only be characterized as insubstantial by comparison. Those within the same or another political party who aspire to run for the same office will have been misled only to the extent that they expended time and money in inserting in their own petitions the assembly district number, surely a de minimis consideration, or in opposing the special proceeding at its various levels, an infirmity of all litigation under the American as distinct from the British system of justice. Other office seekers frustrated in their ambitions by the application of the Morris rule by the board of elections or a lower court may also, because of the existence of Morris and the cost of litigation, have concluded that further appeal was fruitless, but surely that "loss” is offset by the greater ease of becoming a candidate in the future that the overruling of Morris will provide, and in any event such an interest is much more evanescent that the property and commercial interests which spell adherence to rather than departure from erroneous precedent in most applications of stare decisis.

It seems apparent, moreover, that the decisions in question are not working well as precedents, for they clearly have not educated potential candidates to the difference between what the language of section 6-132 considered as a whole appears to require and what this court has held in Matter of Morris (supra) and its predecessors the section does require. To speak authoritatively on the issue one would have to survey at the election board level the number of designating petitions invalidated for failure to insert the assembly district against the total number of petitions filed, but the constant parade of cases involving the section before this court (Matter of Alper v Hayduk, 45 NY2d 809; Matter of Klemann v Acito, 45 NY2d 796; Matter of Morris v Hayduk, 45 NY2d 793, supra; Matter of Vari v Hayduk, 42 NY2d 980; Matter of Rutter v Coveney, 38 NY2d 993; Matter of Berry v Dodd, 38 NY2d 995) and which it has had to consider during this 1979 "election” session (no less than 4 of the 20 cases, including the instant case; Matter of Brown v Ulster County Bd. of Elections, 48 NY2d 614; Matter of Wheeler v Reddy, 48 NY2d 601; Matter of Vickers v Carlsen, 48 NY2d 601) provides a fair basis for the conclusion when one considers the expense of litigating the issue and the inertia induced by the belated discovery that Morris and not the apparent meaning of the section governs and that there is the added burden of stare decisis to overcome. Nor is there much solace for those who would follow Morris in the aphorism that everyone "is presumed to know the law”, for, as we long ago recognized, that is "a trite, sententious saying, 'by no means universally true’ ” (Municipal Metallic Bed Mfg. Corp. v Dobbs, 253 NY 313, 317), and one which, if applicable at all, more readily applies to the law as apparently declared by the wording of a statute, than to the decisional law which interprets the statute, ibid. Thus, the "self-help alternative” to which the majority refers (at p 20) is, at best, illusory, and if statistical support concerning the number of petitions invalidated under the Morris interpretation is not presently available, neither is there support for the majority’s conclusion that "only the careless or inadvertent failure to follow the mandate of statute and case law” (at p 20; emphasis supplied) gives rise to the cases that come before us. The true number may well lie between the two assumptions, indeed could well lie closer to the majority’s assumption than to mine without changing my view that when the result is to constrict citizen participation in the governmental process we should not assume the knowledge of case law construction diverging from the apparent meaning of statutory language that the italicized words in the above quotation from the majority opinion in fact assumes.

Nor should the possibility of legislative correction of the Morris interpretation deter us. The majority recognizes (at p 19) that this court "may properly step in to eífect a change in statutory interpretation”, but concludes that we should not because of the relative ease of accomplishing statutory change, the greater capability of the Legislature to gather relevant data and the fact that our system of government assigns to the Legislature responsibility for determining election law policies. As Professor (now Judge) Robert E. Keeton put it in Venturing to do Justice: Reforming Private Law (at p 17): "the aphorism that a legislature’s failure to enact a change is an expression of approval of the law as it stands is a patent fallacy”. To the reasons he assigns (the ever increasing demands upon the legislators’ time and the fact that the majority individually may have no point of view on the issue in question), I would add the realities of the legislative process. We should not assume that those whose candidacies are frustrated by the Morris interpretation have the constituency to produce legislative change, that provisions written into the Election Law as part of an over-all revision and under the legislative pressures that such a rewriting brings to bear will necessarily be restored when piecemeal amendment is required to overcome an erroneous decisional interpretation of an isolated section, or that under our political system the interest of a majority of legislators will always be to restore to the statute by amendment the meaning originally legislated (cf. majority, at pp 20-21; see, generally, Friendly, op. cit. [at p 27, n 3], at pp 792-798, 801-802).

If we turn to consideration of the intrinsic quality of the precedent, Election Law interpretations should be deemed more readily subject to correction by the court than its decisions construing other statutes. This is not because the courts are in any sense cavalier in their consideration of such cases but quite simply because section 16-116 of the Election Law requires that special proceedings brought under the law "be summarily determined” and be given "preference over all other causes in all courts”. The speed with which such proceedings must be researched and prepared by the attorneys involved in them, with which the proceedings move through the courts (often moving from election board to Special Term to the Appellate Division and to this court in little more than a week), with which decision must be reached by each of the courts that considers the matter (in most cases limiting to hours rather than days the time from argument to completed opinion), and the unorganized nature of the "record” (if it can be dignified with that title) upon which the courts must act, all suggest that decisions construing the Election Law are entitled to less respect as precedents than statutory construction decisions that move through the courts at an infinitely more leisurely pace (generally years, or at least more than a year, as compared with weeks and almost always less than a month from lower court inception to ultimate determination by this court).

The way is, thus, open, within the confines of stare decisis to re-examine the interpretation of the statute. Cardinal in that interpretation is that statutory language is to be construed in accordance with its commonly accepted meaning (People v Hardy, 47 NY2d 500, 505; Matter of Common Council of City of Gloversville v Town of Johnstown, 37 AD2d 459, 460, revd on other grounds 32 NY2d 1; see 1 McKinney’s Cons Laws of NY, Statutes, §§ 94, 272). Section 6-132 of the Election Law contains in subdivision 1 the language acceptable as a designating petition and in subdivision 2 the language acceptable as a subscribing witness’ statement to such a petition. The body of the petition calls for the statement of "Ward (if any) or Assembly District (in the city of New York and in the towns in the county of Nassau)”, and the witness’ statement requires that he or she indicate his residence address and election district and indicate the "Ward/ Assembly district (fill in Ward, if any, otherwise fill in Assembly District where required)”. The clear import of that language (the more especially since "where required” is nowhere else defined in the Election Law) is that the assembly district is only required "in the city of New York and in the towns of the County of Nassau”. The contrary interpretation given the section in Matter of Morris, is predicated on prior decisions, the distinction between signers and subscribing witnesses suggested by comparison of sections 6-130 and 6-132 and the failure of the 1978 Legislature to adopt bills which apparently would have spelled out the meaning of "where required” in subdivision 2 of section 6-132. Since Morris was not decided until after adjournment of the 1978 legislative session that failure should not be accorded any greater significance than the fact, overlooked in Morris, that the title of section 6-130 is "Designating petition; form, witness, qualification”. (Emphasis supplied.) I do not blink the facts that section headings are at best an aid to construction (1 McKinney’s Cons Laws of NY, Statutes, § 123, subd b) and that the body of section 6-130 refers only to signers. I refer only to the section heading as an additional reason for a legislative belief that, as is also called for by the general rule of construction (1 McKinney’s Cons Laws of NY, Statutes, § 130), sections as closely related in subject matter as these were intended to be and would be read together, and thus as possibly explaining why the bills to which the Morris decision referred were not enacted into law. The point is not that my speculation is stronger than that relied upon in Morris but that a right of the importance of that in question should not be frustrated on the basis of so thin a reed.

The reasonableness of interpreting "where required” in subdivision 2 of section 6-130 to refer back to subdivision 1 is underscored by the undisputed evidence in this case that the present petitioner Paul N. Higby, seeking the Republican Party’s nomination for Town Councilman in the Town of Orchard Park, inquired of an election board official whether he was required to have subscribing witnesses insert the assembly district number in his petitions, was told that that was not required, and submitted petitions which uniformly omitted that number. Thus, even the cognoscenti of the election commissioner’s staff are not all aware of our construction of the section and interpret the language according to the common speech of men. Clearly, therefore, the construction constitutes a trap for those not so knowledgeable, into which, as already suggested, many unwittingly fall.

The more egregious does the problem become when one bears in mind that in many instances, as in the Town of Orchard Park, the town is entirely contained within one assembly district. Thus, there is no possibility that the insertion of the assembly district number could have added anything by way of convenience or reliability in the process of checking the validity of the signatures to the petition. While there may be the possibility of confusion with respect to petitions for office in places other than the City of New York and the towns of the County of Nassau, it seems more than likely in light of the express reference to the city and the County of Nassau that the Legislature would have used more narrowly drawn language than "where required” as the means of reaching those cases had it intended to reach them.

In final analysis, the problem comes down to which precedent should be followed: Matter of Turner with respect to stare decisis or Matter of Morris with respect to the interpretation of section 6-132. For me the answer is plain. Bearing in mind the importance of citizen access to the ballot and the continuing problem presented by the Morris interpretation, the stability. value in following precedent is clearly overbalanced. As Mr. Justice John M. Harlan stated in Moragne v States Mar. Lines (398 US 375, 405), "judicious reconsideration of precedent cannot be as threatening to public faith in the judiciary as continued adherence to a rule unjustified in reason”.

For the foregoing reasons, I would reverse the order appealed from and reinstate the Special Term order.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judges Fuchsberg and Meyer dissent and vote to reverse in separate dissenting opinions.

Order affirmed, without costs.

      . Without conceding that the earlier case was incorrectly decided, it is noted that in any discussion of stare decisis it must be taken, arguendo, that strong arguments can be mounted to support a different result. Were the situation otherwise there would be no occasion to rely on the doctrine.

      . It is to be noted that this statute erects a rigid framework of regulation, detailing as it does throughout specific particulars. The statute itself is not "drawn in such general terms that it is evident that the legislative intention is that the courts, by their interpretation, indeed construction, fill in, by a case-by-case approach the skeletal outlines [in which instances] * * * the degree of flexibility in handling statutory precedents is that much the greater”. (People v Hobson, 39 NY2d 479, 490, supra.)

      . To state, as does one dissenter, "that decisions construing the Election Law are entitled to less respect as precedents” (dissenting opn, Meyer, J., at p 28) advances a novel proposition. The need for predictable consistency is not diminished merely because the electoral process is implicated. It is true, of course, that election cases are necessarily expedited; the political calendar and the electoral process demand as much. In some instances, however, it is the impact with which one hits a problem rather than the sustained pressure applied, which counts. That less time elapses from start to finish may foreclose the luxury of leisurely reflection and thus, perhaps, limits the opportunities to explore ramifications. To this extent one can agree that particular care should be taken in extrapolating from precedent in these matters. No such instance, however, is presented in the present case; here the precedents are squarely on point.

       Even if these reported decisions do not correspond to the visible tip of a submerged iceberg of unreported ones, their very number alone should be enough to give us cause to question Rutter.

      . As Justice Roger J. Traynor has so succinctly put it, "a bad precedent is easier said than undone” (Traynor, La Rude Vita, La Dolce Giustizia: Or Hard Cases Can Make Good Law, 29 U Chicago L Rev 223, 231).

      . Clearly the present petitioner, Higby, was neither careless nor inadvertent (see infra this dissent, at pp 29-30).

      . See the reference in Friendly, The Gap in Lawmaking — Judges Who Can’t and Legislators Who Won’t (63 Col L Rev 787, 792) to the claim "that citizens ought to be able to rely on what they read in the statute book, especially in areas in which citizens make plans on the basis of what they read”.

      . Compare Boys Market v Clerks Union (398 US 235, 241) characterizing it as " 'at best treacherous’ ” to find in legislative silence the acceptance of decisional law. (See, also, Hart, Comment in Legal Institutions Today and Tomorrow, pp 40, 45-48 [Paulsen ed, 1959].)

      . Higby urges that there should be an estoppel in his favor, but estoppel is not ordinarily applied against governmental officials (Matter of Farrell v Morton, 268 NY 622).


author: Per Curiam.

text:
    In the Matter of William J. Bulger, a Justice of the Town Court of Wappinger, Dutchess County, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Submitted September 7, 1979;
    decided September 18, 1979

      POINTS OF COUNSEL

      Bernard Kessler for petitioner.
    I. That the commission violated subdivision 2 of section 44 of the Judiciary Law which was in effect on November 21, 1977 and thereby violated the law and due process rights of petitioner. II. That the commission was bound by law to consider and make comment on petitioner’s answer, response and memorandum which was not done and violated the law. III. That the background of petitioner, Honorable William J. Bulger, merits a dismissal of the charges. IV. That petitioner, Justice William J. Bulger, should not be publicly censured or punished and that the Court of Appeals should reverse the determination and dismiss the complaint brought against petitioner.

      Gerald Stern, Raymond S. Hack and Seth Halpern for respondent.
    I. The commission, in serving a formal written
    complaint, complied with the Judiciary Law and afforded proper notice to petitioner. II. The commission fully considered petitioner’s answer and affidavit before reaching its determination. (Fosdick v Town of Hempstead, 126 NY 651.) III. The commission’s determination of censure is based on the nature of the admitted, sustained charges alleging favoritism, is appropriate and is not excessive. (Matter of Bolte, 97 App Div 551; Friedman v State of New York, 24 NY2d 528; Bartlett v Enea, 45 AD2d 471; Matter of Vaccaro, 42 NY2d [a]; People v La Carrubba, 46 NY2d 658.)
   OPINION OF THE COURT

Per Curiam.

It is appropriate in the circumstances disclosed in this record that petitioner be censured for showing and seeking favoritism in the disposition of charges involving traffic violations.

The investigation in this case was commenced by the former State Commission on Judicial Conduct pursuant to section 43 of the Judiciary Law then in effect. The former commission determined that cause existed to conduct a hearing. In response to the formal complaint served on him petitioner, a Town Justice, admitted all but one of the factual allegations against him and did not address the remaining allegation. He waived his right to the scheduled hearing. The former commission forwarded its determination of public censure to the Chief Judge of the Court of Appeals on March 13, 1978. The Chief Judge advised the former commission that it would be improper to proceed under the provisions of the Judiciary Law then in effect inasmuch as they would be superseded on March 31, 1978.

Pursuant to the provisions of section 48 of the Judiciary Law, as amended, this matter was accordingly transferred to the present State Commission on Judicial Conduct. That commission adopted the findings of the former commission and made its determination on December 13, 1978, finding, inter alia, that petitioner in nine separate cases before him between June, 1974 and August, 1976 had either imposed an unconditional discharge or reduced the charge and in one case dismissed the charge as the result of requests for favoritism received by him from the Justices or clerks of other city, town and village courts, and that in one case petitioner had requested favored treatment with respect to the disposition of a case pending before another Justice of his own court. Based on these findings, the commission concluded that petitioner had violated the provisions of the Rules Governing Judicial Conduct promulgated by the Administrative Board of the Judicial Conference and the Code of Judicial Conduct and was guilty of showing and seeking favoritism, characterized by the commission as constituting "serious judicial misconduct”. On this predicate the commission determined that petitioner should be publicly censured. Petitioner has requested a review of this determination by our court.

Petitioner does not dispute the factual findings of the commission, as indeed he could not in view of his own admissions. There is no merit to his contention that his rights were violated because the former commission failed to comply with the provisions of former section 44. As stated, that commission proceeded under the provisions of former section 43 rather than section 44, and there is no claim that the prescriptions of section 43 were not observed. Nor is there any support for the assertion that the commission was bound by law expressly to respond to the arguments advanced on petitioner’s behalf. Finally, petitioner argues that because he is a nonlawyer the charges should be dismissed, and in any event, that he should not be publicly censured. Again there is no merit to this argument (cf. Matter of Dixon v State Comm. on Judicial Conduct, 47 NY2d 523).

Because on this record we perceive no basis to disturb the factual determinations of the commission described above and no reason to modify the sanction determined by the commission, we accept its determination that petitioner be censured.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Determined sanction accepted, without costs.

       We observe that in its determination the commission also found that in four instances petitioner reduced the charges against the defendant "as a result of a communication he received on behalf of the defendant”. We are at a loss to comprehend the relevance of inclusion of these findings. Examination of the record discloses, without apparent contradiction by the commission, that petitioner states that the communications to him in these four cases were from the New York State Police investigator, a village police officer (who had checked with the issuing State trooper), a New York State Police sergeant, and the defendant’s attorney (after petitioner’s several efforts to reach the issuing officer by telephone were unavailing). Without more there is in these episodes no warrant whatsoever for judicial discipline. We cannot conclude, however, that had it not been for the findings with respect to these four cases the commission would have made a different determination.


text:
    The People of the State of New York, Respondent, v Tanya Dodson, Appellant.
    Argued September 6, 1979;
    decided October 9, 1979

      POINTS OF COUNSEL

      Eleanor Jackson Piel for appellant.
    I. CPL 40.20 bars defendant’s State prosecution by its terms and on double jeopardy grounds for possession of stolen goods, grand larceny, and forgery because defendant was previously prosecuted and pleaded guilty in the Federal court to a charge of fraudulent negotiation of a check covering an indictment for similar charges growing out of "the same criminal transaction”. (People v Mangano, 269 App Div 954, affd sub nom. People v Mignogna, 296 NY 1011; People v Daby, 56 AD2d 873; Matter of Cirillo v Justices of Supreme Ct. of State of N. Y., 43 AD2d 4, 34 NY2d 990; Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560; Ashe v Swenson, 397 US 436; People v Abbamonte, 43 NY2d 74.) II. The sentence imposed by the Judge below was illegal and invalid in that it requires restitution payments to be made beyond the period of probation. (People v Lofton, 78 Misc 2d 202; Feldman v Reeves, 45 AD2d 90, 35 NY2d 707.)

      Eugene Gold, District Attorney (Marlene L. Malamy of counsel), for respondent.
    I. Appellant failed to raise the defense created under CPL 40.20 in the first instance and, as such, has failed to preserve the issue for review; with regard to the merits, as the possession of forged instruments .and grand larceny counts of the State indictment contain elements different from the crimes charged in the Federal prosecution, the case falls within the exception to CPL 40.20. (People v La Ruffa, 40 AD2d 1022, 34 NY2d 242, 916, 419 US 959, 37 NY2d 58, 423 US 917; People v Menna, 45 AD2d 1038, 36 NY2d 930, 423 US 61, 38 NY2d 850; People v Adams, 38 NY2d 605; People v Abbamonte, 43 NY2d 74; People v Epton, 19 NY2d 496; Pinkerton v United States, 328 US 640; People v Tavormina, 257 NY 84; Nye & Nissen v United States, 336 US 613; People v Duncan, 46 NY2d 74.) II. The period during which restitution can be made cannot exceed the period of probation.
   OPINION OF THE COURT

Per Curiam.

A statutory claim that one may not be separately prosecuted for two offenses based on the same act or criminal transaction, as distinguished from a constitutional double jeopardy claim, must be duly preserved if there is to be appellate review.

On November 15, 1976 appellant pleaded guilty in the United States District Court for the Eastern District of New York to a charge that she fraudulently demanded a sum of money by virtue of a false instrument. The plea was accepted in satisfaction of a multicount indictment with reference to activities at various times between August 20 and September 23, 1974. Prior to her Federal plea appellant, in April, 1976, had been charged in a multicount indictment lodged in Kings County with possession of stolen property and altering and possessing forged instruments with intent to defraud in the period between August 1 and September 30, 1974. On January 3, 1977 appellant pleaded guilty to attempted grand larceny in the second degree in satisfaction of the State indictment. She was thereafter sentenced to five years’ probation on condition that she make restitution of a total sum of over $22,000 at the fate of $25 per week.

Appellant now contends that her State prosecution was barred under the previous prosecution provisions of CPL 40.20. At the threshold she concedes that her claim is predicated only on the State statute and is not of constitutional dimension. She also acknowledges that she did not advance this claim prior to or at the time of her plea; it was first raised on appeal.

The statutory previous prosecution claim was waived by appellant’s plea of guilty and therefore has not been preserved for appellate review. The situation would be otherwise were she now raising a constitutional double jeopardy claim (People v Michael, 48 NY2d 1).

The restitution directed by the sentencing court would extend over nearly 17 years, well beyond the maximum five-year probationary period. The People candidly concede that under article 65 of the Penal Law restitution may not be ordered beyond the lawful period of probation.

Accordingly, the case must be remitted to Supreme Court, Kings County, for modification of the sentence to limit restitution to the period of probation. Subject to such modification, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order modified and the case remitted to Supreme Court, Kings County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v David Allweiss, Appellant.
    Argued September 4, 1979;
    decided October 16, 1979

      POINTS OF COUNSEL

      Freda S. Nisnewitz for appellant.
    I. The prejudicial effect of the evidence as to appellant’s prior criminal acts so far outweighed its probative value as to deprive him of a fair trial. (People v Molineux, 168 NY 264; People v McKinney, 24 NY2d 180; People v Fiore, 34 NY2d 81; People v Condon, 26 NY2d 139; People v Kennedy, 27 NY2d 551; People v Harris, 64 Misc 2d 510; People v Woods, 41 NY2d 279; People v Branch, 34 AD2d 541, 27 NY2d 834; People v Jackson, 50 AD2d 1102; United States v Benedetto, 571 F2d 1246.) II. The procedure whereby appellant’s voice was identified at the precinct was so unnecessarily suggestive as to deprive him of due process of law. (Simmons v United States, 390 US 377; Stovall v Denno, 388 US 293; United States v Wade, 388 US 218; People v Rahming, 26 NY2d 411; People v Singleton, 83 Misc 2d 112; People v Evans, 90 Misc 2d 195; Foster v California, 394 US 440; People v Gonzalez, 52 AD2d 789.) III. The trial court’s failure to properly instruct the jury concerning the circumstantial evidence rule was prejudicial error, requiring reversal of appellant’s conviction. (People v Von Werne, 41 NY2d 584; People v Lagana, 36 NY2d 71; People v Benzinger, 36 NY2d 29; People v Borrero, 26 NY2d 430; People v Cleague, 22 NY2d 363; People v May, 290 NY 369; People v Vasquez, 47 AD2d 934.) IV. The circumstantial evidence in this case was insufficient, as a matter of law, to sustain a finding of guilt beyond a reasonable doubt. (People v Cleague, 22 NY2d 363; People v Woltering, 275 NY 51; People v Taddio, 292 NY 488.) V. The trial court abused its discretion by certain of its evidentiary rulings, and, in so doing, deprived appellant of a fair trial. (People v Williams, 35 NY2d 783; People v Razezicz, 206 NY 249; People v Feldman, 299 NY 153; People v Jones, 62 AD2d 356; United States v Robinson, 545 F2d 301; United States v Gainey, 380 US 63; Tot v United States, 319 US 463; People v McCaleb, 25 NY2d 394; People v Leone, 25 NY2d 511; People v Williams, 6 NY2d 18.)

      Robert M. Morgenthau, District Attorney (Robert M. Pitler and Allen Alpert of counsel), for respondent.
    I. Defendant’s guilt of the murder of Carol Hoffman was proved beyond a reasonable doubt. II. The trial court properly admitted Vincent St. George’s testimony concerning his pretrial identification of defendant’s voice as that of the man who spoke to him from Carol Hoffman’s apartment minutes before her murder: the circumstances in which St. George identified Allweiss’ voice were not "unnecessarily suggestive”; in any event, St. George’s identification of Allweiss’ voice had a "reliable” basis which involved "no substantial likelihood of misidentification.” The court properly denied without a hearing Allweiss’ motion to suppress voice identification testimony because he did not allege facts entitling him to a hearing. Any legal issue concerning St. George’s voice identification testimony has not been preserved for appellate review. (Stovall v Denno, 388 US 293; Manson v Brathwaite, 432 US 98; People v Ballott, 20 NY2d 600; Neil v Biggers, 409 US 188; Palmer v Peyton 359 F2d 199; People v Logan, 25 NY2d 184; Roper v Beto, 454 F2d 499, 406 US 948; United States v Ryan, 478 F2d 1008; People v Pelow, 24 NY2d 161.) III. Evidence concerning six rapes which defendant committed in the five months before the murder of Carol Hoffman and which were characterized by the distinctive modus operandi present in the Hoffman case was properly admitted to identify defendant as Carol Hoffman’s killer. (Mayer v The People, 80 NY 364; Radosh v Shipstad, 20 NY2d 504; People v Feldman, 299 NY 153; People v Molineux, 168 NY 264; People v Condon, 26 NY2d 139; People v Romano, 84 App Div 318; People v Kennedy, 27 NY2d 551; People v Chumley, 24 AD2d 805; Matter of Jose G., 68 Misc 2d 1043; People v Harris, 64 Misc 2d 510.) IV. The trial court’s rulings on several evidentiary matters were correct. (Radosh v Shipstad, 20 NY2d 504; People v Feldman, 299 NY 153; People v Williams, 6 NY2d 18; People v Leone, 25 NY2d 511; People v Forte, 279 NY 204; People v Macedonio, 42 NY2d 944.) V. The court’s instructions on circumstantial evidence, to which the defense did not object, were correct. (People v Benzinger, 36 NY2d 29; People v Borrero, 26 NY2d 430; People v Cleague, 22 NY2d 363; People v Morris, 36 NY2d 877; People v Radcliffe, 232 NY 249; People v Bell, 58 AD2d 1042.)
   OPINION OF THE COURT

Wachtler, J.

The defendant was convicted at a jury trial of murdering a woman in her Manhattan apartment. The Appellate Division affirmed the conviction, with one Justice dissenting.

On this appeal the defendant primarily claims that the trial court erred in admitting certain evidence used to identify him as the killer. His main point, and the only one to produce disagreement at the Appellate Division, concerns the introduction of proof that, within five months of the homicide, the defendant committed, and prior to this trial pleaded guilty to, six rapes in which he employed the same modus operandi as was apparently used in the homicide. The modus operandi, he claims, was not unique and thus the prejudicial effect of revealing these other crimes outweighed their probative value as evidence of the killer’s identity. He also argues that the court should have conducted a pretrial hearing, pursuant to United States v Wade (388 US 218), to consider the admissibility of a voice identification. Finally, he objects to the use of expert testimony to identify hair samples.

The murder victim, Carol Hoffman, was found dead in her apartment on East 29th Street in Manhattan at 9:30 on the evening of October 23, 1973. Less than an hour prior to the discovery of her body, her boyfriend, Vincent St. George, had called the apartment and spoken to her on the phone. She told St. George, who had called earlier and received no answer, that she had just returned home from a night class which had been held over. During the conversation St. George detected an unusual tone in her voice and asked if something was wrong. After some initial hesitancy she finally acknowledged that there was someone else in the apartment — "someone” she said "who was looking for someone in the building.” She was reluctant, however, to discuss this further and told St. George that she would call him back in a few minutes.

Two or three minutes later she returned the call and told St. George "here, you talk to him. Maybe you can talk him out of it.” St. George then spoke to a man who explained that he was looking for someone who had raped his wife and thrown her down a flight of subway stairs two weeks ago; that as a result his wife had a miscarriage and was still hospitalized and that the rapist was in this building, on this floor, and he was now trying to find the apartment. He also told St. George the police had done nothing and that he was pursuing the rapist on his own, although he did not know what he would do if he found him and was, in fact, afraid of him.

After 10 or 15 minutes the conversation ended when St. George apparently convinced the man to go back to the police. St. George then spoke to Carol Hoffman who, still reluctant to discuss the matter, said that she would call him back again in a few minutes. When she did not return the call St. George proceeded to her apartment shortly after 9 o’clock.

At approximately 9:15 a tenant on the floor above heard a loud thump in the Hoffman apartment followed by a woman crying "stop” or "no”. When St. George arrived 10 or 15 minutes later there was no answer at the door. With the help of the building superintendent he entered the apartment and found Carol Hoffman lying on the floor with a kitchen knife protruding from her stomach and a pair of panty hose around her neck.

Police officers called to the scene observed that the apartment had not been ransacked, with the exception of the dresser drawers all of which were partially open. But only the lingerie drawer was in disarray with some of the articles "hanging out”. They noticed a strand of hair stuck between the victim’s teeth. An autopsy revealed that she had been manually strangled and then stabbed 11 times. She was fully clothed, wearing a dress, slip and underwear. The perforations in the skirt, however, indicated that it had been folded back on itself and therefore apparently raised over the waist at the time of the stabbing. There was no evidence of a completed rape.

St. George described the voice of the man he had spoken to on the phone as deep, soft spoken, and well articulated, without a trace of an accent. He said the man had spoken in a calm, self-assured manner. Two days after the killing he went to the police station where he heard the defendant’s voice on the telephone and identified him as the man he had spoken to prior to Carol Hoffman’s death.

The police clipped hair samples from the defendant’s head and sent them to the FBI laboratory. Later at the trial an expert from the laboratory stated his opinion that the hair found in the victim’s teeth matched hairs removed from the defendant’s head.

At the trial the People also called six women who testified that they had been raped by the defendant during the five months preceding the homicide. Their testimony describing the defendant’s conduct during these incidents was offered and admitted on the theory that it showed that the defendant had previously employed the same modus operandi evident in the homicide and would thus tend to establish his identity as the killer.

In each of those cases the defendant had followed the woman into a residential building as she returned alone to her apartment. In one case he then used force to enter her apartment. In the others he employed a ruse, either posing as a neighbor with a petition or a package or claiming that he was trying to find someone who resided in the building. In each case he grabbed the victim by the throat and threatened to strangle her if she did not do what he said. In four of the cases he also used or threatened the use of a knife.

In each instance the defendant rummaged through the victim’s lingerie and if a slip was found directed her to wear it. In the three most recent cases he used the victim’s panty hose as a rope to bind her before the rape or to aid his escape. During these incidents the defendant often mentioned his wife or fiancée and in two instances he also told an unusual story about them. On the first occasion he said that he had become vengeful because someone had raped his fiancée and stabbed her to death. On the other occasion he said that it was his wife who had been raped and murdered.

Four of the women were asked to describe the defendant’s voice and stated that he had a low or deep voice with no accent and that he articulated his words well or spoke in a calm steady tone. All six of the sexual assaults had occurred in Manhattan, three on the upper West Side and the rest on the lower East Side, within a block or two of Carol Hoffman’s apartment. As noted, it was stipulated that in each case the defendant had pleaded guilty.

The defendant objected to this testimony at the trial and on this appeal claims that the prejudicial effect of the evidence of his prior criminal acts so far outweighed its probative value as to deprive him of a fair trial.

It is fundamental that evidence of uncharged crimes is not admissible if the sole purpose is to show that the defendant was predisposed to commit the crime charged (People v Dales, 309 NY 97, 101; Coleman v The People, 55 NY 81, 90), unless the defendant places this in issue by, for instance, claiming that he was entrapped or coerced into committing a crime to which he was not otherwise disposed (People v Calvano, 30 NY2d 199; People v Mann, 31 NY2d 253; cf. People v Thompson, 212 NY 249). The rule is based on policy and not on logic. It is meant to eliminate the risk that a jury, not fully convinced of the defendant’s guilt of the crime charged may, nevertheless, find against him because his conduct generally merits punishment (People v Molineux, 168 NY 264, 294; People v Zackowitz, 254 NY 192, 198; People v Fiore, 34 NY2d 81, 84-85).

On the other hand, evidence relevant to prove some fact in the case, other than the defendant’s criminal propensity, is not rendered inadmissible simply because it may also reveal that the defendant has committed other crimes (People v Molineux, supra, at pp 291-294; People v Fiore, supra, at p 84). Thus, for instance, evidence of other crimes may be admitted to show motive, intent, the absence of mistake or accident, a common scheme or plan or the identity of the guilty party (People v Molineux, supra, at p 293). The list, of course, is not exhaustive (see People v Jackson, 39 NY2d 64).

When evidence of uncharged crimes is relevant to some issue other than the defendant’s criminal disposition, it is generally held to be admissible on the theory that the probative value will outweigh the potential prejudice to the accused (People v Dales, supra, at p 101; People v Schwartzman, 24 NY2d 241, 247-248, cert den 396 US 846). This rule, however, cannot be applied abstractly. If the evidence is actually of slight value when compared to the possible prejudice to the accused, it should not be admitted, even though it might technically relate to some fact to be proven (see, e.g., People v McKinney, 24 NY2d 180, 185; People v Liller, 20 NY2d 727; see, also, People v Fiore, supra, at p 84).

In this case the identity of the killer was the primary issue at trial. The People’s case on this point was entirely circumstantial. There was other evidence, apart from the proof of the prior rapes, which placed the defendant at the scene. But the hair sample and the voice identification did not conclusively identify the defendant as the killer. It is settled that unless identity has been Conclusively established the People are not precluded from attempting to identify the defendant as the culprit by proof of other crimes (People v Condon, 26 NY2d 139, 142).

But in order to identify the defendant in this manner it is not sufficient to show that he has committed similar acts if the method used is not uncommon. Simply categorizing the defendant as one of many criminal specialists would be of little probative value in determining whether he committed the crimes charged, and the prejudice would be obvious: "it is much easier to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime” (People v Molineux, 168 NY 264, 313, supra). There must be some additional factor to set the defendant’s crimes apart from the ordinary so that "the mere proof that the defendant had committed a similar act would be highly probative of the fact that he committed the one charged” (People v Condon, supra, at p 144; see, also, People v Kennedy, 27 NY2d 551; McCormick, Evidence, § 190).

Here the circumstances evident at the homicide mirror the defendant’s conduct during the rapes. He urges, however, that his prior actions were not unique and thus cannot serve to identify him as the killer. Nevertheless there are certain oddities which alone, or in combination with the other circumstances, serve to distinguish the defendant’s criminal acts.

The most peculiar feature undoubtedly is the bizarre story the defendant told concerning the rape and assault on his wife or fiancée. He mentioned it to one of his rape victims in August and to another in September. On the last occasion he was only a block from the scene of the homicide. It is essentially the same story told by the man who was in Carol Hoffman’s apartment minutes before her death on October 23. This is too unusual to be mere coincidence.

There is also the defendant’s compelling interest in lingerie. He habitually rummaged through his victim’s lingerie as a prelude to the rapes. He had done it three times within a block or two of the Hoffman apartment in July, August and September. The testimony of the other victims shows that this was a consistent , pattern in all six of the rapes. It was evident also at the scene of the homicide where the lingerie drawer was in disarray. This was remarkable because the rest of the apartment, including the dresser drawers, had not been rummaged. It may be that it is not unusual for sex offenders to display a compulsive interest in lingerie. But it is unlikely that there would be many with this particular interest operating in the same neighborhood, at the same time, all with similar voices who employ identical methods in gaining entry to women’s apartments and, once inside, display a readiness to stab or strangle their victims if they do not get their way. The fact that this was an invariable part of the defendant’s modus operandi was, at least, "sufficiently unique” to be submitted for the jury’s consideration (People v Kennedy, supra).

In sum, the evidence was admissible not because it showed the defendant’s propensity to commit the crime but because it demonstrated a distinctive repetitive pattern, evident at the scene of the homicide, which was characteristic of the defendant’s behavior. In this homicide case, where there were no witnesses and the other evidence was less than conclusive, it was highly probative of the murderer’s identity. The trial court properly limited the proof to the surrounding circumstances without dwelling on the details of the sex acts and the prosecutor during his summation exercised similar restraint. In addition, the court instructed the jury, during the voir dire and later in the charge, that the evidence was only to be considered on the issue of identity. Thus prejudice to the defendant’s case, which is always possible whenever evidence of other crimes is admitted, was appropriately minimized by the care exercised by the prosecutor and the Trial Judge and was outweighed by the importance and probative value of this testimony to the central issue of the killer’s identity.

As noted, the defendant also claims that the court should have conducted a pretrial hearing to determine the admissibility of the voice identification made by St. George. He claims that the standards and procedures applicable to visual identifications (United States v Wade, 388 US 218, supra) should be applicable to voice identification and that the voice identification made at the station house was unduly suggestive. In this case, however, there is no need to consider whether, or to what extent, the procedural and substantive standards initiated in the Wade case are applicable to voice identifications. Here it is sufficient to note that at the time the application was made there was no factual support in the record for the contention that the identification procedure was suggestive. There was only speculation. Under these circumstances the court did not err in denying the motion (CPL 710.60, subd 1).

Finally, the defendant claims that the court erred in permitting the People’s expert to offer his opinion that the hair found in the victim’s mouth had come from the defendant’s head. He argues that the results of hair analysis are no more reliable than lie detector evidence which has been held to be inadmissible (People v Forte, 279 NY 204; People v Leone, 25 NY2d 511).

The People’s expert testified that he had microscopically compared the hair samples taken from the defendant’s head with the hair found at the scene of the crime. He stated that the test, like fingerprint analysis, involved comparing a number of characteristics, generally 15 to 20. He conceded that the results would not be as conclusive as fingerprinting, but stated that if a sufficient number of similarities could be found, it could be determined with a reasonable degree of certainty that a hair had come from a certain individual. He said that he was able to do that in this case.

Expert testimony is admissible if the analysis involved is beyond the ken of the typical juror and the results would be relevant to an issue in the case (see, e.g., Dougherty v Milliken, 163 NY 527, 533). Generally conclusive results are not required. It is sufficient if the expert can state his opinion with a reasonable degree of certainty (see, e.g., Matter of Miller v National Cabinet Co., 8 NY2d 277). The higher standard is applicable only when the expert is called to assess credibility (People v Williams, 6 NY2d 18; cf. People v Leone, supra).

Here, of course, the expert was not asked to assess credibility, and his testimony satisfied the general requirements applicable to expert proof. We also note that the value of hair analysis, with its limitations, is recognized by legal scholars (see, e.g., Moenssens & Inbau, Scientific Evidence in Criminal Cases, pp 405-414; McCormick, Evidence, § 206, p 503) and is routinely accepted by courts in other jurisdictions (see, e.g., People v Abbott, 47 Cal 2d 362; Padilla v The People, 156 Col 186; People v Kirkwood, 17 Ill 2d 23; Commonwealth v Tarver, 369 Mass 302, 309-311; State v Baldwin, 47 NJ 379; State v Vargus, — RI —, 373 A2d 150, 156-157 [RI]).

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

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

Order affirmed.