author: Bellacosa, J.

text:
    Thomas Caceci et al., Respondents, v Di Canio Construction Corp., Appellant, et al., Defendants.
    Argued May 24, 1988;
    decided June 30, 1988

      POINTS OF COUNSEL

      Leon D. Lazer and Karen S. Frieman for appellant.
    I. The doctrine of the housing merchant should not be adopted by this court when the Legislature has rejected it for 21 consecutive years and there has been no persuasive showing of the need for such a radical alteration of the common law. (Rozell

      v Rozell, 256 App Div 61, 281 NY 106; Dolezel v Fialkoff, 2 AD2d 642; Spano v Perry, 59 Misc 2d 1062; Staff v Lido Dunes, Inc., 47 Misc 2d 322; Ben Constr. Corp. v Ventre, 23 AD2d 44; Aegis Prods. v Arriflex Corp., 25 AD2d 639; Milau Assocs. v North Ave. Dev. Corp., 42 NY2d 482; Turl’s Sons v Williams Eng’g & Contr. Co., 136 App Div 710; Simon v Etgen, 213 NY 589.) II. In the absence of the doctrine of the housing merchant as New York law, the judgment should be reversed and the complaint dismissed. (Staff v Lido Dunes, Inc., 47 Misc 2d 322.) III. The trial court’s exclusion of defendant’s expert witness on damages constituted reversible error requiring a new trial. (Werner v Sun Oil Co., 65 NY2d 839; Richmond v Union Steamboat Co., 87 NY 240.)

      Robert H. Harris for respondents.
    I. The implied warranty of good and workmanlike construction and habitability is part of New York’s decisional law independently of codification by the Legislature as part of the "Housing Merchant” doctrine, and should be recognized as the common law of New York. (Rosenthal Jewelry Corp. v St. Paul Fire & Mar. Ins. Co., 21 AD2d 160, 17 NY2d 857; Simon v Etgen, 213 NY 589; Dunn v Bloom, 15 AD2d 687; Staff v Lido Dunes, Inc., 47 Misc 2d 322; Town of Ogden v Howarth & Sons, 58 Misc 2d 213; Centrella v Holland Constr. Corp., 82 Misc 2d 537; De Roche v Dame, 75 AD2d 384; Whitman v Lakeside Bldrs. & Developers, 99 AD2d 679; Luckoff v Sussex Downs, 104 AD2d 636.) II. The judgment below should be affirmed on the additional ground of negligence in the fulfillment of a contractual duty even if the court should find no implied warranties. (Video Corp. v Flatto Assocs., 58 NY2d 1026; Aegis Prods. v Arriflex Corp., 25 AD2d 639.) III. The trial court’s exclusion of defendants’ witness’s testimony on damages did not constitute reversible error. (Simon v Etgen, 213 NY 589; Lutwak v United States, 344 US 604; People v Kingston, 8 NY2d 384; McGovern v Riverdale Country School Realty Co., 51 AD2d 894; N. V. Maatschappij Voor Industriele Waarden v Smith Corp., 590 F2d 415; Werner v Sun Oil Co., 65 NY2d 839; Snyder v Massachusetts, 291 US 97.)

      Gary H. Gutchess for New York State Builders Association, Inc., amicus curiae.

    I. An implied warranty of workmanlike construction and habitability does not attach to homes purchased prior to construction. II. Assuming the existence of such an implied warranty in law, defendant in this case did not make the warranty. (Young v Keith, 112 AD2d 625.) III. Assuming the existence of such an implied warranty in this case, the damages award below was excessive. (Jacob & Youngs v Kent, 230 NY 239; Whitman v Lakeside Bldrs. & Developers, 99 AD2d 679.)
   OPINION OF THE COURT

Bellacosa, J.

As another building block in our common-law judicial process, this court recognizes the "Housing Merchant” warranty, imposing by legal implication a contractual liability on a homebuilder for skillful performance and quality of a newly constructed home the defendant builder contracted for and sold to plaintiffs. The doctrine that the buyer must beware (caveat emptor) may not be invoked in these circumstances by the appellant-defendant builder-seller against the plaintiffs purchasers, whose affirmed award of damages after a nonjury trial should also be upheld by our court.

On November 29, 1976, plaintiffs Mary and Thomas Caceci entered into a contract with defendant Di Canio Construction Corp. for the sale and conveyance of a parcel of land in Suffolk County on which a one-family ranch home was to be constructed by the defendant builder. The contract price was $55,000. Di Canio guaranteed "for one year from title closing, the plumbing, heating, and electrical work, roof and basement walls against seepage and defective workmanship,” but added that "[liability under this guarantee shall be limited to replacement or repair of any defects or defective parts.” The contract also provided that the dwelling "shall be constructed in accordance with the requirements as to materials and workmanship of the Municipality * * * with the requirements of the lending institution which shall make the mortgage loan [and] with the approved plans and specifications.” Paragraph (24) concluded: "It is further agreed that none of the terms hereof except those specifically made to survive title closing shall survive such title closing.”

On October 14, 1977, title closed. Four years later in December 1981, Mary Caceci noticed a dip in the kitchen floor. The condition was brought to defendant’s attention and an attempt to repair the house was made by jacking up the basement ceiling and inserting shims, to close the gap. The area was spackled over and sealed. These repairs did not solve the problem and the floor soon began to dip again. In November 1982, defendant made another attempt to repair the house, while assuring plaintiff that the cracks and dips were the result of a normal settling process. Unconvinced, plaintiffs hired a firm experienced in structural and concrete repairs to do test borings and analysis of soil samples. The results showed the cause of the sinking foundation was its placement on top of soil composed of deteriorating tree trunks, wood and other biodegradable materials. The repair work to cure the problem, which took seven months, included digging up the entire slab foundation, removing the wood and tree trunks, and pouring a new foundation.

In May 1983, plaintiffs commenced this action, alleging six causes of action. A nonjury trial was held and, prior to the close of proof, the court dismissed three causes of action based on fraud and negligent repair. The claims which went to verdict were based on breach of contract (rejected), negligent construction (upheld) and breach of implied warranty of workmanlike construction (upheld). The trial court noted that photographs and testimony established that defendant, in pouring the original concrete footing and slab, became aware of the substances in the soil and thus breached duties in negligence and in implied warranty. A judgment of $57,466, representing the reasonable cost of correcting defendant’s slipshod performance, was entered in plaintiffs’ favor together with costs and interest from December 1981.

The Appellate Division affirmed solely on the implied warranty theory, confirming that there was sufficient evidence from which the trier of fact could infer that defendant knew the house was being erected on poor soil.

We, too, affirm, holding that there is an implied term in the express contract between the builder-vendor and purchasers that the house to be constructed would be done in a skillful manner free from material defects. Contrary to the view expressed by the lower courts in this case, however, the builder-seller’s knowledge of the defect, however relevant in a fraud claim, is not decisive under this implied contractual warranty theory. Further, the contract’s standard merger clause is of no legal effect in these circumstances of an implied warranty with respect to latent defects. Plaintiffs’ claim based on a breach of implied warranty could only arise at closing of title when the builder-vendor conveyed a house which suffered from latent material defects. To hold, in a case such as this, that the closing itself, the very act which triggers the claim, also served to extinguish it is self-contradictory, illusory and against public policy. Finally, the contention that Real Property Law § 251 prohibits this "Housing Merchant” warranty by legal implication also is not persuasive, since that statute is expressly limited to deeds of conveyance and has no application to contracts for the construction and sale of new homes.

Traditionally, the doctrine that the buyer must beware (caveat emptor) governed the sale of personal property and real property. The rationale for the judicially created doctrine was an outgrowth of the 19th century political philosophy of laissez-faire; namely, that a "buyer deserved whatever he got if he relied on his own inspection of the merchandise and did not, extract an express warranty from the seller” (Roberts, The Case of the Unwary Home Buyer: The Housing Merchant Did It, 52 Cornell LQ 835, 836-837). Thus, the law treated express warranty or negligence or fraud as providing a purchaser of chattel or of real property with a surfeit of remedies.

As the industrial revolution roared into the era of mass produced goods, the law governing the sale of personal property started to relax the rigid results of the caveat emptor rule, culminating in the recognition of an implied warranty of merchantability (see, Uniform Sales Act § 15, 1 ULA; UCC 2-314, 2-315). This change in attitude as to chattels had little effect upon sales of real property, because prior to World War II there was no corresponding marketing or production transformation in the home construction industry. The post-World War II boom in housing, however, produced a building industry revolution and a growing awareness of the relative helplessness of would-be homeowners in the face of poor or deficient quality.

Since law usually reflects society’s conflicts and developments, it started to catch up to the changes in home building and purchasing practices by bringing fresh and sharp scrutiny to the doctrine of caveat emptor in these circumstances. One commentator even pointed to the irony of a system of law which "offer[ed] greater protection to the purchaser of a seventy-nine cent dog leash than it [did] to the purchaser of a 40,000-dollar house” (Haskell, The Case for an Implied Warranty of Quality in Sales of Real Property, 53 Geo LJ 633 [1965]; see also, Roberts, The Case of the Unwary House Buyer: The Housing Merchant Did It, 52 Cornell LQ 835 [1967]; Rearman, Caveat Emptor in Sales of Realty — Recent Assaults Upon the Rule, 14 Vand L Rev 541 [1961]).

To harmonize the legal inconsistency and to soften the harsh effect of the caveat emptor doctrine, many jurisdictions recognized an implied warranty of skillful construction in connection with the sale of newly constructed houses. In fact, English courts, the originators of the caveat emptor rule, were the first to qualify it with the recognition of the implied warranty theory (Miller v Cannon Hill Estates, [1931] 2 KB 113). Likewise, lower courts of our State have over the last three decades recognized and joined the legal trend. This case presents the first opportunity, however, for this court to address the continued appropriateness of the caveat emptor doctrine in these circumstances.

Our seminal cases are instructive. In Lutz v Bayberry Huntington (148 NYS2d 762, 767-768 [1956] [Marcus G. Christ, J.]), plaintiff purchaser sought to recover damages allegedly suffered because the house erected for him by the defendant builder was defective. The court acknowledged for repleading purposes the purchaser’s cause of action based on the theory that there was an implied term in the agreement that the house would be constructed in a good and skillful manner.

Thereafter, in Staff v Lido Dunes, Inc. (47 Misc 2d 322 [1965]), then-Justice Bernard S. Meyer, noting the general rule of no implied warranty on the sale of a completed house, nevertheless identified the national trend in dictum that there should be an implied warranty of quality with respect to a house to be or in the process of being constructed. Lower courts have adhered to the distinction between contracts for the sale of completed houses and contracts for the construction and sale of a new home, holding that an implied warranty of good and skillful construction exists only as to the latter (see, e.g., Carter v Cain, 112 AD2d 2; Dolezel v Fialkoff, 2 AD2d 642; Spano v Perry, 59 Misc 2d 1062; compare, De Roche v Dame, 75 AD2d 384, lv dismissed 51 NY2d 821; Whitman v Lakeside Bldrs. & Developers, 99 AD2d 679; Dunn v Bloom, 15 AD2d 687; Centrella v Holland Constr. Corp., 82 Misc 2d 537).

The justification in cases which have relaxed the doctrine of caveat emptor with respect to homes contracted for sale prior to construction is that the two parties involved in the purchase of such a home generally do not bargain as equals in relation to potential latent defects from faulty performance. When a buyer signs a contract prior to construction of a house, inspection of premises is an impossibility, especially and obviously with respect to latent defects. Thus, the purchaser has no meaningful choice but to rely on the builder-vendor to deliver what was bargained for — a house reasonably fit for the purpose for which it was intended. The builder-vendor, on the other hand, maintains a superior position and is the only one who can prevent the occurrence of major defects. We hold that responsibility and liability in cases such as the instant one should, as a matter of sound contract principles, policy and fairness, be placed on the party best able to prevent and bear the loss.

Defendant argues that departure from the rule of caveat emptor involves far-reaching policy considerations and, therefore, the decision to supplant it or modify it in these circumstances with an implied contractual warranty of skillful construction must be left to the Legislature. The court’s role is not so limited. Defendant fails to appreciate that we are presented with what was in the first instance a court-made rule. Moreover, significant growth in many diverse areas of the law has emerged from this court’s application of the common-law process to developing, changing and even outdated doctrines.

The mid-19th century well-established principle that the original seller of goods was not liable for damages caused by defects in the product with respect to anyone except the immediate purchaser or one in privity to that purchaser (see, Winterbottom v Wright, 10 Mees & W 109, 152 Eng Rep 402 [1842]), evolved into an almost grudging exception that a seller could be liable to a third person for negligence in the preparation and sale of an article "imminently dangerous” to human safety (Thomas v Winchester, 6 NY 397, 408 [1852]). Then, Judge Cardozo, in MacPherson v Buick Motor Co. (217 NY 382), significantly extended the class of inherently dangerous articles to anything which becomes dangerous because it was negligently made. The underlying rationale for the extension of the court-made rule was that the manufacturer, by placing a product on the market, assumed responsibility to the ultimate purchaser and user.

Bing v Thunig (2 NY2d 656) is another example of this court’s preeminent common-law process at work addressing a well-settled court-made rule. Judge Fuld abandoned the "medical act” exception to the respondeat superior doctrine of Schloendorff v New York Hosp. (211 NY 125 [1914]), holding in Bing v Thunig (supra, at 667): "[t]he rule of nonliability is out of tune with the life about us, at variance with modern-day needs and with concepts of justice and fair dealing. It should be discarded. To the suggestion that stare decisis compels us to perpetuate it until the legislature acts, a ready answer is at hand. It was intended, not to effect a 'petrifying rigidity,’ but to assure the justice that flows from certainty and stability. If, instead, adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it.”

Chief Judge Cardozo’s preeminent work The Nature of Judicial Process captures our role best: "If judges have wofully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors” (Cardozo, Nature of Judicial Process, at 152; see also, at 109-110, 150-152).

These cases and these views are especially apt in the area of contractual relations where it has long been the law in New York that courts will imply a covenant of good faith where the implied terms are consistent with other mutually agreed upon terms (Wood v Duff-Gordon, 222 NY 88; see also, Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 325). Here, the implication that the builder must construct a house free from material defects and in a skillful manner is wholly consistent with the express terms of the contract and with the reasonable expectation of the purchasers. Common sense dictates that the purchasers were entitled to expect, without necessarily expressly stating the obvious in this contract, that the house being purchased was to be a habitable place. The law ought to fulfill that commonsense expectation.

Defendant’s claims with respect to the sufficiency of the evidence, to the exclusion of expert witness proof and to the measure of damages, have been reviewed and are without merit.

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

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

Order affirmed, with costs.

       Over 25 States now recognize some form of an implied warranty of habitability or skillful construction in connection with the sale of homes (see, In re Cochran v Keeton, 287 Ala 439, 252 So 2d 313 [1971]; Richards v Powercraft Homes, 139 Ariz 242, 678 P2d 427 [1984]; Coney v Stewart, 263 Ark 148, 562 SW2d 619 [1978]; Pollard v Saxe & Yolles Dev. Co., 12 Cal 3d 374, 525 P2d 88 [1974]; Cosmopolitan Homes v Weller, 663 P2d 1041 [Colo 1983]; Greentree Condominium Assn. v RSP Corp., 36 Conn Sup 160, 415 A2d 248 [1980]; Gable v Silver, 264 So 2d 418 [Fla 1972]; Bethlahmy v Bechtel, 91 Idaho 55, 415 P2d 698 [1966]; Park v Sohn, 89 Ill 2d 453, 433 NE2d 651 [1982]; Theis v Heuer, 264 Ind 1, 280 NE2d 300 [1972]; Kirk v Ridgway, 373 NW2d 491 [Iowa 1985]; Gosselin v Better Homes, 256 A2d 629 [Me 1969]; Weeks v Slavick Bldrs., 24 Mich App 621, 180 NW2d 503, affd 384 Mich 257, 181 NW2d 271 [1970]; Allison v Home Sav. Assn., 643 SW2d 847 [Mo 1982]; Chandler v Madsen, 197 Mont 234, 642 P2d 1028 [1982]; Norton v Burleaud, 115 NH 435, 342 A2d 629 [1975]; McDonald v Mianecki, 79 NJ 275, 398 A2d 1283 [1979]; Earls v Link, Inc., 38 NC App 204, 247 SE2d 617 [1978]; Yepsen v Burgess, 269 Ore 635, 525 P2d 1019 [1974]; Elderkin v Gaster, 447 Pa 118, 288 A2d 771 [1972]; Rutledge v Dodenhoff, 254 SC 407, 175 SE2d 792 [1970]; Sedlmajer v Jones, 275 NW2d 631 [SD 1979]; Hollen v Leadership Homes, 502 SW2d 837 [Tex 1973]; Bolkum v Staab, 133 Vt 467, 346 A2d 210 [1975]; Klos v Gockel, 87 Wash 2d 567, 554 P2d 1349 [1976]; Tavares v Horstman, 542 P2d 1275 [Wyo 1975]).


source: Caselaw Access Project

author: Alexander, J.

license: Public Domain

text:
    Clients’ Security Fund of the State of New York, Respondent, v Barry J. Grandeau, Defendant, and Michael T. Dahowski, Appellant.
    Argued May 31, 1988;
    decided June 30, 1988

      POINTS OF COUNSEL

      Thomas N. O’Hara for appellant.
    I. The Clients’ Security Fund of the State of New York has only the powers conferred upon it by statute, which may not be enlarged by implication and the present action against defendant Michael T. Dahowski does not lie. (Matter of Consolidated Edison Co. v Public Serv. Commn., 47 NY2d 94; Matter of City of New York v State of New York Commn. on Cable Tel., 47 NY2d 89; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Matter of Memorial Hosp. v Axelrod, 68 NY2d 958; Matter of Adams [Government Employees Ins. Co.], 52 AD2d 118; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Peterson v Daystrom Corp., 17 NY2d 32; Williams v Williams, 23 NY2d 592; Matter of Capone v Weaver, 6 NY2d 307; Matter of De Peyster, 210 NY 216.) II. Enlargement of the statutory grant by implication is not necessary. (Saltser & Weinsier v McGoldrick, 295 NY 499; Meltzer v Koeningsberg, 302 NY 523; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; People v Shafer, 30 AD2d 213.) III. Plaintiff does not have a viable common-law right of subrogation against Dahowski. (Gerseta Corp. v Equi

      table Trust Co., 241 NY 418; Salzman v Holiday Inns, 48 AD2d 258, 40 NY2d 919; Chrysler Corp. v Brown, 441 US 281.)

      Robert Abrams, Attorney-General (Denise A. Hartman, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
    I. The Fund has the authority to seek restitution from persons or entities other than the defalcating attorney pursuant to assignment and subrogation agreements executed by clients who have been reimbursed by the Fund. (Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186; Matter of Memorial Hosp. v Axelrod, 68 NY2d 958; Matter of City of New York v State of New York Commn. on Cable Tel., 47 NY2d 89; Pajak v Pajak, 56 NY2d 394; Red Hook Cold Stor. Co. v Department of Labor, 295 NY 1; People ex rel. Estate of Woolworth v State Tax Commn., 200 App Div 287; Federal Land Bank v Bismarck Co., 314 US 95; Argosy Ltd. v Hennigan, 404 F2d 14; United States v Gertz, 249 F2d 662.) II. The partnership’s former clients, in consideration for reimbursement of their losses, contractually assigned and subrogated to the Fund any claims that they may have had against Dahowski, including those asserted in the complaint. (Zack Metal Co. v International Nav. Corp., 112 AD2d 865, 67 NY2d 892; Matter of Rugby Funding v Schreck, 29 AD2d 310, 25 NY2d 840; Evansville Natl. Bank v Kaufmann, 93 NY 273; American Bag & Metal Co. v Alcan Aluminum Corp., 115 AD2d 958; American Sur. Co. v Siebrecht, 10 F Supp 306; Richtmeyer v Remsen, 38 NY 206; Smith v Endicott-Johnson Corp., 199 App Div 194, 234 NY 628, 266 US 291; Oppel v Empire Mut. Ins. Co., 517 F Supp 1305; Calamari v Grace, 98 AD2d 74; American Hemisphere Mar. Agencies v Kreis, 40 Misc 2d 1090.)
   OPINION OF THE COURT

Alexander, J.

The Clients’ Security Fund of the State of New York reimbursed several hundred law clients of attorney Barry J. Grandeau for losses suffered as a result of his having misappropriated their funds. As a condition of reimbursement, the clients agreed to assign and subrogate to the Clients’ Security Fund their rights against Grandeau, his partner Michael T. Dahowski, and their law partnership. By statute, the Fund is authorized to recover disbursements made to clients of the attorney who engaged in the dishonest conduct. The question presented by this appeal is whether the Fund is restricted to recoupment solely from the attorney who personally engaged in the dishonest conduct, or whether it may also pursue a subrogation action against the attorney’s former law partner.

I.

The Clients’ Security Fund was created in 1981, with its assets in the custody of the State Comptroller (State Finance Law § 97-t; L 1981, ch 714). In providing for such a fund, the Legislature sought "to promote public confidence in the administration of justice and the integrity of the legal profession by reimbursing losses caused by the dishonest conduct of attorneys admitted and licensed to practice law in the courts of New York State” (22 NYCRR 7200.1; see generally, Palermo, Clients’ Security Funds Help Our Professional Image, 56 NYSBJ 10 [1984]). The Fund is administered by a seven-member Board of Trustees (the Board), appointed by the Court of Appeals. The Board is authorized to adopt regulations for the administration of the Fund and procedures for the "presentation, consideration, allowance and payment of claims” (State Finance Law § 97-t [5]). The Fund is financed primarily from a biennial registration fee imposed, with certain exceptions, upon all attorneys in New York (Judiciary Law § 468-a; State Finance Law § 97-t [2]).

In order to implement the purpose of the Fund, the Board is empowered to reimburse clients, in its discretion, for "losses caused by the dishonest conduct of attorneys admitted to practice in this state” (State Finance Law § 97-t [4]). The statute defines dishonest conduct to mean the "misappropriation or wilful misapplication of clients’ money, securities, or other property, by an attorney admitted to practice in this state” (State Finance Law § 97-t [4]). The Legislature has entrusted the Board with "sole discretion to determine the merits of claims presented for reimbursement, the amount of such reimbursement and the terms under which such reimbursement shall be made” (State Finance Law § 97-t [6]). Terms of reimbursement — including an aggrieved client’s agreement to assign or subrogate rights — are to be fixed by the Board (State Finance Law § 97-t [6]).

Among those disbursements made since its inception, the Fund has awarded approximately $589,829 to 373 claimants— all clients of the law partnership of Grandeau & Dahowski. The firm was formed by defendants Barry J. Grandeau and Michael T. Dahowski, and conducted a law practice in Poughkeepsie. By 1982, both Grandeau and Dahowski were the subject of separate disciplinary proceedings for having misappropriated the funds of the firm’s clients. Upon submission of his resignation, Grandeau was disbarred for misappropriation of funds, for failing to render an accounting of funds, and for failing to keep records (Matter of Grandeau, 88 AD2d 628). Dahowski, on the other hand, was not disbarred but was censured for professional misconduct — including his failure "to oversee or review the record keeping of his law firm, thereby contributing to the conversion by [his] law partner of funds entrusted to the law firm” (Matter of Dahowski, 103 AD2d 354, 355). The Appellate Division specifically observed, however, that other than the misconduct stated, Dahowski was "in no way responsible for the conversions” (Matter of Dahowski, 103 AD2d 354, 355, supra).

As a condition of making reimbursements to the clients of the law firm, the Board required each client to execute an agreement subrogating and assigning to the Fund his or her rights against Grandeau, Dahowski and the partnership. The Fund, in turn, commenced this action, seeking to recoup sums paid to the clients. Causes of action grounded in negligence, breach of trust, and breach of contract, and Dahowski’s vicarious liability for Grandeau’s professional misconduct are stated. Defendant Dahowski answered, but defendant Grandeau defaulted and is not a party to this appeal. Dahowski and the Fund cross-moved for summary judgment, Dahowski claiming that the action did not lie against him individually.

Supreme Court denied the Fund’s motion and awarded summary judgment to Dahowski, dismissing the complaint as to him (131 Misc 2d 673). That court held that insofar as Dahowski never personally engaged in "dishonest conduct” as defined by the statute — but merely negligently failed to discover Grandeau’s peculations — the Fund could not have reimbursed losses to the firm’s clients that were attributable to his conduct. Therefore, the court concluded, there is no basis for a statutory subrogation action, or a common-law subrogation action against Dahowski. The Appellate Division modified by denying Dahowski summary judgment, concluding that the Clients’ Security Fund, consistent with its purposes, is authorized to pursue its subrogation claim against him (129 AD2d 383). The Appellate Division thereafter certified to this court a question as to whether it had erred in so modifying. We now affirm and answer the question certified in the negative.

II.

State Finance Law § 97-t (6) provides that the terms upon which reimbursement may be made by the Board: "shall require that the claimant execute such instruments, take such action or enter into such agreements as the board of trustees shall require, including assignments, subrogation agreements and promises to cooperate with the board of trustees in making claims against the attorney whose dishonest conduct resulted in the claim” (emphasis added). Defendant argues that the last phrase restricts the Fund from pursuing "subrogation actions grounded in mere negligence”. Defendant’s contention, however, misperceives the thrust of the Fund’s subrogation claim. The Fund acknowledges its authority to reimburse law clients only for losses attributable to the "dishonest conduct” of attorneys, and concedes that here Dahowski did not engage in "dishonest conduct” as that term is defined by the statute. The Fund does not seek to recoup reimbursements predicated upon claims that Dahowski engaged in negligent professional misconduct. Rather, the Fund seeks to recoup — to the extent of the reimbursements paid— those sums which each client had a right to pursue from whatever party as may be liable for the dishonest conduct of Grandeau.

Traditional principles of partnership law dictate that, ordinarily, one member of a partnership is liable for the tortious conduct of another, and any member of a partnership may be liable for a conversion of property committed by a member of the firm, even where the other members of the firm had no knowledge of the offending partner’s action (see generally, 16 NY Jur 2d, Business Relationships, §§ 1407-1408; Annotation, Vicarious Liability of Attorney for Tort of Partner in Law Firm, 70 ALR3d 1298). In the circumstances of this case, each client victimized by Grandeau’s misappropriation of funds acquired a viable cause of action against Dahowski as well. The aggrieved client assigned and subrogated to the Fund its right to assert such a cause of action and establish Dahowski’s liability for Grandeau’s tortious conduct. The Fund may therefore prosecute, standing in the shoes of the aggrieved clients, claims of negligence, breach of contract and breach of trust against Dahowski (see, United States Fid. & Guar. Co. v Smith Co., 46 NY2d 498, 504; see generally, 57 NY Jur, Subrogation, §§ 15, 26).

Nevertheless, defendant argues, subrogation against anyone other than the attorney whose dishonest conduct resulted in the claim was simply not contemplated by the Legislature. Defendant’s contention, however, is inconsistent with the statutory provisions vesting broad discretion in the Board and frustrates the purposes of the legislation creating the Fund.

State Finance Law § 97-t (6) vests sole discretion in the Fund to define the terms under which reimbursement shall be made. The statute further confers upon the Board authority to require that a claimant "execute such instruments, take such action or enter into such agreements as the board * * * shall require”. This grant of authority embraces a broad power to devise terms and structure reimbursement agreements as the Board, in the exercise of its sound discretion, shall deem suitable to advance the aims of the Fund. The various circumstances enumerated in the statute are examples of terms upon which reimbursement may be conditioned; we do not interpret them as circumscribing the Board’s discretion. If, as defendant urges, the Legislature sought to restrict the Board to recoupment solely from the attorney who personally engaged in the dishonest conduct, the primary grant of broad authority would have little meaning beyond the enumerated terms. These provisions taken together evince a legislative intent not to restrict the source of recoupment solely to the attorney personally culpable for the dishonest conduct — an individual who often may be bankrupt, incarcerated or deceased and incapable of providing any refunding. To so limit the power of the Fund would jeopardize its financial integrity and undermine its ability to promote public confidence in the legal profession.

We conclude therefore, that the Board is authorized to prosecute the instant subrogation claim not only against the attorney who engaged in the dishonest conduct — -Grandeau— but against Dahowski, his former law partner, as well.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the question certified answered in the negative.

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

Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v Kenneth Page, Appellant. The People of the State of New York, Respondent, v Raymond Washington, Appellant.
    Argued May 25, 1988;
    decided July 7, 1988

      POINTS OF COUNSEL

      Andrea Hirsch and Philip L. Weinstein for appellant in the first above-entitled action.
    Appellant was denied his constitutional and statutory right to a jury trial where the court, over defense counsel’s objection, discharged a sworn juror on the ground that she was late and without reference to the statutory criteria for excusal. (People v Buford, 69 NY2d 290; People v Ivery, 96 AD2d 712; People v West, 92 AD2d 620, 62 NY2d 708; People v Anderson, 69 NY2d 947; People v Cargill, 70 NY2d 687; Hildreth v City of Troy, 101 NY 234; People v Branch, 46 NY2d 645; United States v Jorn, 400 US 470; Illinois v Somerville, 410 US 458; People v Salemmo, 38 NY2d 357.)

      Robert M. Morgenthau, District Attorney (Mark Dwyer and Olga Boikess of counsel), for respondent in the first above-entitled action.
    The court properly exercised its statutory authority when it replaced an absent sworn juror in order to begin trial proceedings before the jury without delay. (People v Buford, 69 NY2d 290; People v Anderson, 69 NY2d 947; People v Cargill, 70 NY2d 687; United States v Jorn, 400 US 470; People v Pierce, 97 AD2d 904; People v Burns, 118 AD2d 864;
      United States v Makres, 598 F2d 1072; United States v Peters, 617 F2d 503; People v Perkins, 124 Misc 2d 1060.)

      Rosali Vazquez and Philip L. Weinstein for appellant in the second above-entitled action.
    Appellant was denied his constitutional and statutory right to a jury trial where the court, over defense counsel’s objection, discharged a sworn juror who was absent for two hours based on unsupported speculation that the juror was trying to avoid jury service. (People v Buford, 69 NY2d 290; People v Ivery, 96 AD2d 712; People v West, 92 AD2d 620, 62 NY2d 708; People v Anderson, 70 NY2d 729; People v Rodriguez, 71 NY2d 214; People v Cargill, 70 NY2d 687; People v Hewlett, 133 AD2d 417; People v Karadimas, 99 AD2d 652; People v Molette, 129 AD2d 651; People v Wilson, 106 AD2d 146.)

      Robert M. Morgenthau, District Attorney (Maryjane C. Shimsky and Mark Dwyer of counsel), for respondent in the second above-entitled action.
    The trial court did not abuse its discretion in finding that a missing sworn juror, who was not likely to return to court that day and might well never return, was unavailable for continued jury service. (Hildreth v City of Troy, 101 NY 234; People v Buford, 69 NY2d 290; United States v Jorn, 400 US 470; People v Arroyave, 49 NY2d 264; People v Mitchell, 266 NY 15; People v Cuevas, 133 AD2d 504; People v Pierce, 97 AD2d 904; People v Burns, 118 AD2d 864; United States v Domenech, 476 F2d 1229, 414 US 840; United States v Rodriguez, 573 F2d 330.)
   OPINION OF THE COURT

Bellacosa, J.

In each case, defendant appeals from an affirmance of his criminal conviction. Each contends he was deprived of his constitutional and statutory right to trial by a jury of his choice when the Trial Justices in the two different cases discharged a sworn juror on the ground that the juror was "unavailable for continued service” (CPL 270.35).

In Supreme Court, Criminal Term, New York County, on the first scheduled day of trial of People v Page, the Trial Justice, outside the presence of the jury, explained to the defendant, his counsel and the Assistant District Attorney: "We got a call from juror No. 1 [the foreperson] and she said she just got up and she’ll get here when she can.” The Trial Justice indicated his desire, with the consent of all counsel, to start the trial by discharging the absent juror and substituting an alternate juror. Defense counsel asked, "Did she give an indication when she would be here?” and the court responded, "I can’t hold up the whole judicial process for some lady who just got up.” Defense counsel objected. The court again asked for cooperation and defense counsel, never having received an answer to her question, persisted in the objection. Shortly thereafter, when the jury was ready to be seated, the substitution was made and defense counsel asked that it be noted on the record that it was 10:17 a.m.; the late juror still had not arrived for the trial which had been scheduled to begin at 9:30 A.M.

In People v Washington, also in Supreme Court, Criminal Term, New York County, the court discharged juror No. 5 on the second day of a continued trial, after waiting two hours for the absent juror to arrive, making particularized inquiries and placing them on the record. Prior to the discharge, court personnel made "repeated and numerous” but unsuccessful attempts to locate the juror. They did reach the juror’s mother, who explained that her son had gone to a hospital because he had a cold, but she refused to tell the court to which hospital he had gone. The court stated on the record that "we have no way of finding out where he [the juror] is”, and that it was "already 11:30 a.m.”

Defense counsel asked the court to explore alternatives, including a one-day adjournment to attempt to find the juror. The Trial Justice refused, noting on the record that she might have been willing to grant an adjournment if there were any reason to believe that the juror would be available "in the relatively near future”. The court added that the mother’s unconvincing story, failing to disclose specific details about her son’s illness and specific whereabouts, led the court to believe the juror was "trying to avoid coming to court”. The record also disclosed that four prosecution witnesses were scheduled to testify that day, one of whom had failed to appear previously and had to be subpoenaed.

There is no claim in these cases that our court’s holding in People v Buford (69 NY2d 290) is directly controlling, since that case involved a different statutory clause which authorizes the discharge of jurors who, after the trial begins, are discovered to be unfit to serve because of bias or misconduct. That case is, however, pressed as being persuasive and analogous authority affecting the two instant cases. Like the provision in the same statute, CPL 270.35, pertaining to the discharge of a juror found to be grossly unqualified, the provision at issue in this case is intended also to secure the right to be tried by a jury in whose selection defendant has had a voice (see, People v Buford, 69 NY2d 290, 297-298, supra).

However, the statutory provision at issue in the two instant cases has an entirely different root purpose and requires the discharge of jurors who are found to be unavailable for continued service. It is intended to serve the orderly, fair and prompt progress of a trial so it is broader and more flexible in its terms than the provision in Buford (id.), which pertains to juror qualification, to the ability of a particular juror to be impartial in deciding a case, and to the avoidance of direct prejudice to the defendant from unlawful discharge of that juror. The statute here — in requiring the discharge of a juror who is unavailable for continued service "by reason of illness or other incapacity, or for any other reason” (CPL 270.35 [emphasis added]) — invests a trial court with latitude to make a balanced determination affecting the administration of justice based on the facts required to be adduced, recognizing that criminal proceedings should not be unnecessarily or unfairly delayed against the interests of either the defense or the prosecution, especially when the trial is under way and so many other participants are involved.

No inflexible rule or catechism was contemplated or need be judicially crafted to determine the precise parameters of when a juror is unavailable under this statutory prescription. Rather, illustrative factors that may be considered in making such determinations include the stage of trial, the expected length of the absence of the juror if known, whether the juror’s return is ascertainable and reasonably imminent and certain, whether reasonable attempts have been made to locate the absent juror, and other relevant circumstances such as the continued availability of key witnesses. A trial court’s decision dismissing a juror must safeguard the important right of a defendant to be tried by jurors in whose selection the defendant has had a voice. It thus necessitates a reasonably thorough inquiry and recitation on the record of the facts and reasons for invoking the statutory authorization of discharging and replacing a juror based on continued unavailability. This requires a reasonable attempt to ascertain where the absent juror is, why the juror is absent, and when the juror will be present. Several benefits flow from this rule: a defendant’s rights are protected; the statute can be properly employed; and appellate courts, in the exercise of their respective powers, will be able to review the determination based on an adequate record.

In People v Washington, the trial court’s particularized findings and action on the record in the effort to ascertain the circumstances of the juror’s absence and of the likelihood of his continued availability to serve cannot be said to constitute error as a matter of law. Thus, the order affirming the conviction in that case must be affirmed.

The same cannot be said in People v Page where the trial court failed to ascertain when the absent juror might arrive at the courthouse. Without some reasonable effort shown on the record, we cannot infer a sufficient legal basis upon which the court could invoke the “unavailable for continued service” provision. There must therefore be a reversal and a new trial.

Accordingly, the order of the Appellate Division in People v Page should be reversed and a new trial ordered, and in People v Washington the order should be affirmed.

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

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

In People v Washington: Order affirmed.


text:
    The People of the State of New York, Respondent, v Fritzlet Tissois, Appellant.
    Argued May 26, 1988;
    decided July 6, 1988

      POINTS OF COUNSEL

      Constance Cushman, Howard B. Comet and Richard S. Mandel for appellant.
    I. The trial court committed reversible error in refusing to turn over notes containing prior statements of the complaining witnesses that were directly related to the allegations. (People v Rosario, 9 NY2d 286, 368 US 866; People v Perez, 65 NY2d 154; People v Mattiace Indus., 52 NY2d 739; People v Consolazio, 40 NY2d 446, 433 US 914; People v Ward, 121 Misc 2d 1092; Matter of John M., 104 Misc 2d 725; People v Malinsky, 15 NY2d 86; People v De Jesus, 69 NY2d 855; Matter of Grand Jury Proceedings Special Investigation 1198/82, 118 Misc 2d 683; People v Easter, 90 Misc 2d 748.) II. The trial court’s evidentiary rulings deprived defendant of his constitutional right to present a defense. (Chambers v Mississippi, 410 US 284; Davis v Alaska, 415 US 308; Washington v Texas, 388 US 14; Grochulski v Henderson, 637 F2d 50, 450 US 927; United States v Herman, 589 F2d 1191, 441 US 913; Hughes v Mathews, 576 F2d 1250, cert denied sub nom. Israel v Hughes, 439 US 801; Lipinski v People, 557 F2d 289, 434 US 1074; United States v Norman, 518 F2d 1176; Alicea v Gagnon, 675 F2d 913.)

      Elizabeth Holtzman, District Attorney (Jessica Hecht and Barbara D. Underwood of counsel), for respondent.
    I. Defense counsel was not entitled to inspect the notes made by a social worker who interviewed the child victims at a private child welfare agency prior to trial. (People v Rosario, 9 NY2d 286, 368 US 866; People v Reedy, 70 NY2d 826; People v Alvarez, 70 NY2d 375; People v De Jesus, 69 NY2d 855; People v Nieves, 67 NY2d 125; People v Tutt, 38 NY2d 1011; People v Martin, 50 NY2d 1029; People v Gissendanner, 48 NY2d 543; People v Robinson, 87 AD2d 877; People v Marin, 86 AD2d 40.) II. Defendant was not prejudiced by any of the trial court’s evidentiary rulings, which were made within the proper exercise of that court’s discretion. (People v Smith, 104 AD2d 160;
      People v Sexton, 187 NY 495; People v. De Jesus, 69 NY2d 855; Chambers v Mississippi, 410 US 284; People v Williams, 6 NY2d 18, 361 US 920; People v Allweiss, 48 NY2d 40; Kravitz v Long Is. Jewish-Hillside Med. Center, 113 AD2d 577; People v Ciaccio, 47 NY2d 431; People v Henson, 33 NY2d 63; People v Benjamin R., 103 AD2d 663.)
   OPINION OF THE COURT

Alexander, J.

Statements made to a registered social worker, during the course of that worker’s employment, are deemed confidential communications protected from disclosure by statute (CPLR 4508). We hold that defendant’s claim of entitlement under People v Rosario (9 NY2d 286) to statements made by prosecution witnesses to a social worker employed by the Brooklyn Society for the Prevention of Cruelty to Children is insufficient, in the circumstances presented, to overcome this statutory privilege properly invoked at trial.

Defendant was convicted of rape in the second degree and various counts of sexual abuse based upon accusations made by three young children who, together with their parents, temporarily shared a home with defendant in Brooklyn during the summer of 1984. Defendant contended that the children were coerced into making these accusations by their father, who was a strict disciplinarian resentful of the friendship that had developed between defendant and the children. In order to secure support for this theory, defense counsel subpoenaed the notes of a social worker for the Brooklyn Society for the Prevention of Cruelty to Children (BSPCC), who interviewed and counseled the children prior to trial. At trial, defendant argued that he was entitled under People v Rosario (9 NY2d 286, supra; see also, CPL 240.45 [1] [a]) to production of these notes to facilitate cross-examination of the children regarding the alleged acts and the strained relationship between the children and their father.

The social worker’s notes — consisting of seven typewritten pages — were not in the possession of the prosecutor; they were produced by counsel for the BSPCC, who requested that the BSPCC be notified if the trial court was inclined to disclose them so that he could discuss such disclosure with the children insofar as the documents were deemed confidential under the CPLR (see, CPLR 4508). After an in camera inspection, the trial court denied defendant’s request for the notes as Rosario material on the ground that they contained "nothing whatsoever exculpatory, and nothing whatsoever * * * that is inconsistent” with the testimony of the children on direct examination. On appeal from his conviction, defendant challenges the trial court’s determination, arguing that it impeded him from adequately presenting his defense, and that the rule established in People v Rosario (9 NY2d 286, supra) — which imposes generally an obligation on the People to produce pretrial statements of prosecution witnesses prior to cross-examination —entitles him to inspect the pretrial statements the children gave to the social worker (see generally, People v Ranghelle, 69 NY2d 56, 62; People v Jones, 70 NY2d 547, 550).

We have identified certain factors as bearing upon the scope of the People’s obligation under Rosario to produce the pretrial statements of prosecution witnesses. In Rosario itself, we recognized that the defense is entitled to examine such statements to determine their value for cross-examination, "[a]s long as the statement * * * contains nothing that must be kept confidential” (People v Rosario, 9 NY2d 286, 289, supra; People v Ranghelle, 69 NY2d 56, 59, supra). Also to be considered is whether the material sought is in the possession or control of the People (see, e.g., People v Fishman, 72 NY2d 884; People v Reedy, 70 NY2d 826, 827; cf., People v Perez, 65 NY2d 154, 158 [statements made to private party but prompted and recorded by prosecutor are in possession and control of People]). Here, consideration of both factors demonstrates that the People were not required to produce the communications of the child victims to the social worker. The interview notes of a registered social worker taken during the course of his or her employment are confidential communications protected from disclosure by statutory command. CPLR 4508 (a) prohibits a "person duly registered as a certified social worker” from disclosing "a communication made by his client to him * * * in the course of his professional employment”. Ordinarily, therefore, prior to trial a social worker’s interview notes would not be in the possession or control of the People, but in the possession and control of the social worker. Indeed here, the record demonstrates that the material was not in the possession or control of the People. Under these circumstances, the People were not obligated within the meaning of the Rosario rule to produce the social worker’s notes.

Alternatively, defendant urges that our holding in People v De Jesus (69 NY2d 855) requires reversal here. In De Jesus, defendant demanded that the People provide him with the complainant’s pretrial account of the alleged sexual acts given to a social worker at the Bureau of Child Welfare. At trial, the prosecutor objected to having to produce the statements, but failed to assert the statutory privilege of CPLR 4508— leaving the Trial Judge no opportunity to consider the privilege, and the defendant no occasion to make a record "with respect to the People’s relation to [the Bureau of Child Welfare], or * * * who in these circumstances might assert (or waive) any privilege under CPLR 4508” (People v De Jesus, 69 NY2d 855, 857, supra). We held that once the defendant claimed a right to the statements under Rosario, the prosecutor was obliged to specify any objection he had to furnishing the requested material (People v De Jesus, 69 NY2d 855, 857, supra). Here, defendant argues that because the statutory privilege was not cited by the trial court as the basis for its ruling at the time of trial, defendant was not afforded the opportunity to make a record with respect to the privilege, and therefore De Jesus controls.

We find De Jesus to be inapposite, however. The record here reveals that counsel for the BSPCC expressly invoked the statutory privilege codified in CPLR 4508 when producing the documents for the limited purpose of an in camera review by the court. The court, the prosecutor, and defense counsel— prior to the court’s ruling on defendant’s demand for the notes —all were apprised of this. Indeed, it was because of the statutory prohibition against disclosure that the BSPCC had not complied with defendant’s subpoena from the outset. The privilege embodied in CPLR 4508 having been asserted, it was incumbent upon defendant to demonstrate entitlement to the material despite the statutory privilege. Defendant failed to assert the applicability of any exceptions to the prohibition of disclosure (see, CPLR 4508 [a]). Moreover, insofar as defendant failed to raise any additional basis upon which entitlement to the notes might rest (see, e.g., People v Gissendanner, 48 NY2d 543, 549-550; Davis v Alaska, 415 US 308; cf., Matter of Grattan v People, 65 NY2d 243), we have no occasion to decide what circumstances, if any, would sufficiently overcome the statutory barrier to disclosure.

We have examined defendant’s remaining contentions and find them to be without merit.

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

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

Order affirmed.


author: Simons, J. Kaye, J.

text:
    The People of the State of New York, Respondent, v Charles Okafore, Appellant.
    Argued April 20, 1988;
    decided June 9, 1988

      POINTS OF COUNSEL

      Steven R. Kartagener for appellant.
    Appellant’s constitutional rights protecting him against double jeopardy were violated when he was prosecuted, convicted and punished in New York County for criminal possession of a weapon in the second degree, after he had already been prosecuted, convicted and punished in Bronx County for the same, continuing offense, arising from the same criminal event. (Matter of Johnson v Morgenthau, 69 NY2d 148; Illinois v Vitale, 447 US 410; Brown v Ohio, 432 US 161; People v Almodovar, 62 NY2d 126; People v Pons, 68 NY2d 264; Matter of James B., 92 AD2d 937; United States v Jones, 533 F2d 1387, 431 US 964; Bifulco v United States, 447 US 381; Simpson v United States, 435 US 6; United States v Bass, 404 US 336.)

      Robert M. Morgenthau, District Attorney (Robert M. Raciti and Mark Dwyer of counsel), for respondent.
    Defendant’s prosecution in New York County for criminal possession of a weapon in the second degree was not barred by the principles of double jeopardy. (Matter of Johnson v Morgenthau, 69 NY2d 148; Blockburger v United States, 284 US 299; Brown v Ohio, 432 US 161; Illinois v Vitale, 447 US 410.)
   OPINION OF THE COURT

Simons, J.

In Matter of Johnson v Morgenthau (69 NY2d 148), we determined that criminal possession of a weapon in the third degree was a continuing crime. We found, therefore, that although the defendant had unlawfully possessed a weapon in The Bronx and Manhattan during a continuous six-day period only one crime had been committed. As a result, double jeopardy principles prohibited New York County from prosecuting him for criminal possession of a weapon in the third degree after he had been placed in jeopardy for the same crime in Bronx County. In the matter before us, defendant has been separately charged and convicted of criminal possession of a weapon in the second degree as a result of incidents occurring approximately an hour apart, one in Bronx County and the other in New York County. He contends that second degree possession is also a continuing crime and that his later New York County conviction must be set aside on double jeopardy grounds. The crimes of second and third degree criminal possession of a weapon differ significantly, however. Third degree, examined in Johnson (supra), is defined by reference to dominion and control, whereas second degree requires a specific intent, the “intent to use the same unlawfully against another” (Penal Law § 265.03). Thus, second degree is a continuing offense only as long as a defendant possesses the weapon intending to use it against a particular person or group of persons. If that intent abates, the crime is completed, even though defendant continues to possess the weapon, and a subsequently formed intent while possessing the weapon results in the commission of a second offense. In this case, defendant’s possession of the weapon was continuous but the intent with which he possessed it was separate and discrete in the two charged incidents. He thus committed two offenses and could be prosecuted for both.

I

These charges arose when defendant, a Nigerian immigrant, went to the apartment of his estranged wife late one night intent on killing her because he believed she was having an affair with his son by a former marriage. The police had arrived in answer to a call but before they could stop defendant, he shot his wife three times with a .38 caliber pistol then fled out a window and down a fire escape to his waiting car. Once in the car defendant headed for his son’s apartment intending to shoot him as well. He abandoned that idea before reaching the apartment and decided to return home and kill himself.

Defendant reached his Manhattan apartment about an hour after the killing to find the police waiting in the hallway outside. They ordered him to "freeze” but, in an attempt to escape, defendant pulled out his gun and aimed it at one of the officers. Before he could fire, the police shot and wounded him and placed him under arrest. Ballistics tests revealed that the gun taken from defendant by the police was the one he had used to shoot his wife and that he had reloaded it after killing her.

Bronx County authorities indicted defendant for murder in the second degree, criminal use of a weapon in the second degree and criminal possession of a weapon in the second degree for the shooting of his wife. He was convicted after trial of second degree manslaughter and second degree criminal possession of a weapon and sentenced to a 5-to-15-year term of imprisonment. The judgment was affirmed by the Appellate Division.

While the Bronx County case was proceeding, defendant was indicted in New York County for second and third degree criminal possession of a weapon based on his threatened use of the handgun against the police officers at his Manhattan apartment. After he was convicted of second degree possession in Bronx County, defendant moved to dismiss the New York County prosecution claiming that it was barred by the double jeopardy protections of the Federal Constitution and CPL article 40. His motion was denied and he pleaded guilty to criminal possession of a weapon, second degree, and was sentenced to a 2-to-6-year term to run consecutively with the term imposed on the Bronx County conviction. The Appellate Division affirmed and a Judge of this court granted leave to appeal. We now affirm.

II

Defendant maintains that because his possession of the gun between the time he killed his wife in The Bronx and his display of the weapon in Manhattan was uninterrupted, the crime he committed in New York County was simply a continuation of the possessory offense he committed in The Bronx. He thus contends the Bronx and New York County authorities both indicted him for the same crime and that under the "continuous offense doctrine” his Bronx County conviction should have barred the New York County prosecution. If indeed only one continuing second degree offense were involved here, then the New York County prosecution would be barred by the Double Jeopardy Clause of the United States Constitution which protects an accused against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same offense (see, US Const 5th, 14th Amends; Ohio v Johnson, 467 US 493, 498, reh denied 468 US 1224; Brown v Ohio, 432 US 161, 165; Matter of Johnson v Morgenthau, supra, at 150).

The question whether the continuous offense doctrine should be applied arises most clearly in cases, such as this one, where the defendant is charged with repeated violations of a single statute. The doctrine dates back to the English case of Crepps v Durden (2 Cowp 640 [KB]) which held that the baker’s sale of four loaves of bread on one Sunday contrary to the "blue laws” constituted one continuing offense, not four separate ones. The Crepps rationale was incorporated into our law of double jeopardy by the Supreme Court in the case of In re Snow (120 US 274) which concluded that the defendant’s marriage to more than one wife over a period of years could only support one prosecution for unlawful cohabitation because of the continuing nature of the offense (see also, United States v Universal Corp., 344 US 218; Ex Parte Nielsen, 131 US 176). More recently, the Supreme Court applied the continuing offense doctrine in Brown v Ohio (432 US 161, supra), holding that the crime of joyriding — taking or operating a vehicle without the owner’s consent — was a continuing offense commencing when the defendant stole the car and continuing as long as he retained it. Because joyriding was a lesser included offense of theft, the court held that defendant’s theft and nine-day possession of the vehicle could support only one prosecution and his conviction for joyriding barred a later attempt to prosecute him for theft.

We applied the continuing offense doctrine in Matter of Johnson v Morgenthau (69 NY2d 148, supra). The defendant in Johnson had continually possessed a handgun for six days and carried it from Bronx County to New York County during that time. The question was whether he could be prosecuted by both the Bronx and New York County authorities for criminal possession of a weapon in the third degree under Penal Law § 265.02 (4). We held that because criminal possession of a weapon in the third degree was defined purely in terms of dominion and control (see, Penal Law § 10.00 [8]), it was a continuing offense and that defendant’s prosecution for it in Bronx County barred the subsequent New York County prosecution. In so holding, we recognized that the Legislature could have subdivided third degree criminal possession of a weapon into temporal or spacial units enabling continuous conduct to support multiple prosecutions but that it had not done so.

It is helpful to compare these cases, in which the continuous offense doctrine was invoked, with others in which it was not, cases such as Blockburger v United States (284 US 299) which involved narcotic sales, and People v Erickson (302 NY 461) which involved bookmaking. In both those cases, defendants contended that their offense consisted of only one crime, engaging in a prohibited "business”. The courts held, however, that the crimes were not continuous offenses but that each sale of narcotics and each bet received constituted a new offense. In so holding, each court looked to the intent underlying the statute to determine whether the legislative purpose was to prohibit a course of conduct or specific described acts (see, Blockburger v United States, 284 US 299, 304, supra; People v Erickson, 302 NY 461, 464, supra). In making that analysis, the Blockburger court found it significant that the charged conduct was not the product of one "impulse”, permitting only one prosecution no matter how long the action may continue, but successive and distinguishable impulses, each able to support a separate charge (284 US, supra, at 302). The two narcotic sales in Blockburger occurred a day apart but in finding that they were triggered by separate impulses and thus separate crimes, the court cited with approval an earlier case, Ebeling v Morgan (237 US 625), in which the separate offenses occurred only minutes apart (id., at 303). It was the separate "impulses” not the time interval betwéen the acts which was dispositive in the court’s determination.

Penal Law § 265.03 defines criminal possession of a weapon in the second degree as possession of "a machine-gun or loaded firearm with intent to use the same unlawfully against another” (emphasis added). Thus, unlike the third degree possession statute construed in Matter of Johnson v Morgenthau (69 NY2d 148, supra) which defines the crime solely in terms of dominion and control, the statute defining second degree possession contains a specific intent element as well. By means of this element, the Legislature divided the duration of the offense into periods during which the defendant harbors a particular intent. We indicated that it could do so in Matter of Johnson (see, 69 NY2d 148, 152, supra). Second degree possession may theoretically encompass a continuing course of conduct because, like possession, intent may be durational in nature (see, People v Pons, 68 NY2d 264, 268), but unlike third degree, which continues throughout the time of possession, second degree spans only the period during which defendant possesses the weapon and harbors the unlawful intent to use it against another. If either element lapses, the crime is complete. A discrete crime is committed when the defendant, having retained possession of the weapon, later forms a new criminal intent.

III

Applying these principles to the present appeal, we conclude that under the circumstances of this case defendant committed two separate offenses. His possession of the handgun was uninterrupted, but his intent constantly changed during that one-hour period. Initially he intended to kill his wife and after doing so, he left to shoot his son. He subsequently abandoned that plan and returned to his apartment with the intention of taking his own life. This new intention provided a break in the continuing nature of the crime, even if the other change did not, because the intent to commit suicide cannot support a prosecution for second degree criminal possession of a weapon; the statute requires an intent to use the weapon against another (see, Penal Law § 265.03). Thus, even if it be contended that defendant had but one intention, to use the gun against his wife, his son and anyone who tried to stop him, the crime had abated by the time defendant returned to his apartment in Manhattan because at that time he had formed a new intent, to kill himself, and in the words of Blockburger, the initial "impulse” had subsided. When later confronted by the police in Manhattan, however, defendant became chargeable with another count of second degree criminal possession because while possessing the gun he manifested the newly formed intent to use it against them.

Defendant next contends that his threatened use of the gun in Manhattan should be deemed a continuation of his second degree possession of it in The Bronx even if his intent to unlawfully use the gun was curtailed between the two episodes. This is so, he claims, because the two separate incidents were linked by a period in which he committed third degree possession. Defendant thus maintains that because he was continually committing a possessory offense, albeit not the second degree offense of which he was twice convicted, he should only have been subjected to one prosecution for his possession of the weapon.

He bases his argument on the Johnson case in which the People contended the defendant’s six-day possession of a weapon could support two prosecutions for third degree possession of a weapon because during that period the defendant took the weapon home. Thus, they claimed, Johnson was not continually committing the third degree offense because possession of a weapon at one’s home or place of business constitutes fourth degree possession. We rejected the argument, finding that the gist of the offense was simple possession and that both statutes reflected the legislative goal to criminalize that conduct although in different degrees depending on where it occurred. Accordingly, we held that even if the defendant took the gun home for a time — and was only guilty of fourth degree possession during that period — the continuing nature of the offense was not interrupted and only one prosecution was permissible. The irrationality of any other result was noted by our citation to United States v Jones (533 F2d 1387, cert denied 431 US 964) which involved defendant’s continuing three-year possession of a weapon. If simple possession were not a continuing offense, defendant in that case would have been exposed to over 1,000 counts of unlawful possession. No similar problem arises when the Legislature divides the crime into special or temporal units, by defining each day of continuing conduct as a separate offense (see, ECL 71-4001 [b]) or by reference to several elements, some of which are of limited duration.

Manifestly, the Legislature was seeking to prohibit something more than simple possession when it enacted Penal Law § 265.03 by focusing on the intent to use the weapon (see, People v Almodovar, 62 NY2d 126, 130 [unlawful intent renders possessory crime more serious]; see generally, Hechtman, Practice Commentary, McKinney’s Cons Law of NY, Book 39, Penal Law §265.03, at 475). The offense is fundamentally different from third or fourth degree possession because divided into temporal units measured by the presence of the required intent. The "essence” of it is not possession but the intent to use the weapon against another and the offense should not be equated to simple possessory offenses for double jeopardy purposes to "bridge” episodes of second degree possession into a single offense. Inasmuch as two criminal intents are discernible, constituting discrete culpable events and not a single continuing one, each could be separately prosecuted.

The dissent states that a weapon may be possessed with a single intent, to injure several people, and analogizes the crime to a single conspiracy to commit several offenses (citing Braverman v United States, 317 US 49). If defendant’s intent is directed to one or more of a group of people, it indeed may be that only one offense is committed. But if the original unlawful intent is abandoned and subsequently a new intent is formed to use the weapon against others during the period of possession, more than one crime is committed. The apt analogy in that circumstance is to discrete illegal agreements constituting more than one crime of conspiracy (cf., Braverman v United States, supra, at 52-53).

Nor does the court’s interpretation punish "bad thoughts” as the dissent contends (citing to 1 LaFave & Scott, Substantive Criminal Law §3.2 [b], at 273). The combination of defendant’s unlawful possession of a weapon and his intent to use it against another constitutes a crime, not the punishment of "bad thoughts”. That combination existed twice in this case and justifies separate prosecutions.

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

Kaye, J.

(dissenting). "Thé Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units” (Brown v Ohio, 432 US 161, 169). Recognizing this, we recently concluded in Matter of Johnson v Morgenthau (69 NY2d 148, 152) that the uninterrupted possession of a weapon, over a six-day period, constituted a continuous offense which could support only one prosecution for criminal possession of a weapon in the third degree. While the Legislature might have defined criminal conduct in terms of temporal units (see, e.g., ECL 71-4001), we found that it had not done so with respect to possessory crimes, defining them instead in terms of dominion and control (id.).

The majority now ignores the words of Brown and the premise of Johnson, and holds that criminal possession of a weapon in the second degree — unlike the other possessory crimes defined in Penal Law §§ 265.01-265.05 — may be divided into temporal units. Based on a strained construction of the statutory definitions of the various possessory crimes and a misapplication of Blockburger v United States (284 US 299), the court holds that a possession which can support only one count of weapon possession in the third or fourth degree can support multiple counts in the second degree. We accept neither that logic nor that result, and therefore respectfully dissent.

Like third and fourth degree weapon possession, second degree possession is part of the comprehensive statutory scheme focused on the possession itself. As we made clear in People v Almodovar (62 NY2d 126, 130): "[t]he essence of the illegal conduct defined in sections 265.01-265.05 of the Penal Law [criminal possession of a weapon in the first through fourth degree] is the act of possessing a weapon unlawfully.” (See also, People v Pons, 68 NY2d 264, 266.) The crime may become more serious — and punished accordingly — because of the intent with which the defendant acts, or the place where the possession occurs. But the essence of the crime — unlawful dominion and control of a weapon — continues unabated whether or not the aggravating or mitigating factors are present (see, People v Almodovar, 62 NY2d 126, 130, supra).

Recognizing the common essence of the various possessory crimes, we held in Matter of Johnson v Morgenthau (69 NY2d 148, 152, supra) that for double jeopardy purposes possession in the third degree and possession in the fourth degree were the same crime, although fourth degree possession entailed possession inside a defendant’s home or business and third degree possession encompassed possession elsewhere. We of course could have found that the physical limitations made the crimes discrete — that a separate crime of third degree possession occurs when a defendant leaves the home or place of business with a weapon, and a separate crime of fourth degree possession occurs when defendant returns with it. But we declined to do so because the unlawful dominion and control of the weapon — the crux of both crimes — was continuous, notwithstanding the aggravating element of location. Thus we held that so long as possession of a weapon continues uninterrupted, it constitutes but a single possessory offense and cannot be the subject of multiple prosecutions.

Despite the absence of any statutory language or legislative history supporting its construction, the court holds that the aggravating factor of intent, unlike the aggravating factor of location, transforms the essential nature of the crime of possession. The majority now finds that second and third degree possession are "fundamentally different” crimes and that the "essence” of second degree possession "is not possession but the intent to use the weapon against another and the offense should not be equated to simple possessory offenses for double jeopardy purposes to 'bridge’ episodes of second degree possession into a single offense.” (Majority opn, at 89.) Such an analysis, however, was specifically rejected in Johnson (supra) because, as we explained in Almodovar (supra) and Pons (supra), the gist of both crimes is the same — the unlawful dominion and control of a weapon. That possession continues unabated no matter what defendant’s intent may be. If a defendant cannot be subject to multiple prosecutions for third degree possession where the weapon is taken in and out of a home or place of business because the possession continues unabated, then for the same reason defendant should not be subject to multiple prosecutions for uninterrupted possession accompanied by a changed mental state.

To explain the departure from, and inconsistency with, our own recent precedents, the court relies on the "separate impulse” test of Blockburger v United States (284 US 299, supra), claiming that after defendant had killed his wife his initial "impulse” abated and a separate "impulse” was formed when he was confronted by the police outside his apartment. The analogy to Blockburger is inapt.

Blockburger addressed the question whether two discrete sales of narcotics, a day apart, were one crime or two. The Supreme Court concluded that the two separate acts of sale constituted two separately prosecutable crimes. In reaching that conclusion, the court distinguished In re Snow (120 US 274), where it had earlier held that a defendant’s bigamous relationship with several wives, extending over three years, was but a single continuing crime. The court in Blockburger relied upon the Snow rationale to explain the difference between "an offense continuous in its character” and an " ’offense consisting of an isolated act’ ” (Blockburger v United States, 284 US 299, 302, supra), and in so doing enunciated the "separate impulse” test: "Each of several successive sales constitutes a distinct offense, however closely they may follow each other. The distinction stated by Mr. Wharton is that 'when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie’ * * * 'The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately * * * if the latter, there can be but one penalty.’ ”

Clearly, the Blockburger "separate impulse” test focuses on whether there have been discrete "acts” rather than a continuous course of conduct. Bigamy is a continuous course of conduct and unless interrupted is subject to a single prosecution; discrete drug sales are separate acts or "impulses,” each of which may be separately prosecuted (see also, Ebeling v Morgan, 237 US 625 [a defendant was properly convicted of separate counts pursuant to a Federal statute proscribing the tearing of mail bags, because he engaged in discrete acts, as opposed to a continuous course of conduct]). But the majority misapplies Blockburger to this case, because the focus here is not on discrete acts but on a continuous course of conduct accompanied by arguably discrete intents. The majority, in effect, now holds that a continuous course of conduct may be subject to multiple prosecutions based upon the existence of separate intents. Blockburger did not so hold.

Such a focus on the "intent” or object of the act rather than each act itself was implicitly rejected by the Supreme Court in Braverman v United States (317 US 49). The question in Braverman was whether a single agreement to commit acts in violation of several penal statutes was to be punished as one or several conspiracies (id., at 52). The court answered by looking to the essence or gist of the crime of conspiracy — the agreement to commit one or more unlawful acts:

"Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. * * *

"A conspiracy is not the commission of the crime which it contemplates, and neither violates nor 'arises under’ the statute whose violation is its object [citations omitted]. Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal objects, it differs from successive acts which violate a single penal statute and from a single act which violates two statutes. See Blockburger v. United States, 284 U.S. 299, 301-4; Albrecht v. United States, 273 U.S. 1, 11-12. The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute * * * For such a violation, only the single penalty prescribed by the statute can be imposed.” (Braverman v United States, 317 US 49, 53-54, supra.)

Applied to this case, both Braverman (supra) and Blockburger (supra) support only a single prosecution for the continuous possession of a weapon: defendant’s unlawful possession of a weapon with the intent to use it unlawfully against a number of people was but a single, continuous course of conduct. -

This conclusion is, moreover, consistent with a basic premise of Anglo-American criminal law that no crime can be committed by bad thoughts alone. Something in the way of an act or omission is required before criminal liability may attach (1 LaFave & Scott, Substantive Criminal Law § 3.2 [b], at 273 [2d ed]). Evil intent — while possibly an aggravating factor or even a prerequisite to criminal liability — cannot, standing alone, support a criminal conviction, and it cannot transform what would otherwise constitute a single crime into multiple criminal offenses. Indeed, a cursory glance at our own penal code reveals the essential role of the "act” in the articulation of criminal offenses, with the element of intent effecting the gravity of punishment. For example, the Penal Law proscribes the act of homicide, grading the severity of the offense with the nature of the actor’s intent (see, People v Stanfield, 36 NY2d 467, 470). Article 265 of the Penal Law, similarly, proscribes the act of possessing a weapon unlawfully. "The crime may be more serious because of the intent with which the defendant acts”, but without the proscribed act or course of conduct — the unlawful possession — there is no crime (People v Almodovar, supra, at 130; see, People v Pons, supra).

Thus, based on the statute, our own recent precedents and fundamental precepts of the criminal law, we would reverse defendant’s conviction on grounds of double jeopardy.

Two concerns remain. First, while we believe that the court’s new rule is incorrect, we fear that it is also unworkable. As the statute reads, possession of a weapon "is presumptive evidence of intent to use the same unlawfully against another.” (Penal Law § 265.15 [4].) Now a new element is introduced to a weapons possession prosecution: defendant’s mind must be probed to determine exactly what intent defendant actually had, and against whom, at various points in time. Theoretically, continued possession in a crowd now can support dozens of separate prosecutions; a defendant apprehended with a weapon after verbally expressing an intent to use it against a series of persons, without ever using it all, could be subject to multiple prosecutions for second degree possession. It surely could not have been the intention of the Legislature to allow one continuous possession of a weapon to be punished even more seriously than, for example, homicide. Second, we share the concern expressed by the People that a defendant who has possessed a weapon with a certain unlawful intent not be given in effect a "free ride” to threaten others. The answer, however, is that the acts of such a defendant in using, attempting to use or threatening to use that weapon against others will support multiple prosecutions and cumulative punishments — as, for example, for manslaughter, attempted murder, assault, criminal use of a weapon, and menacing.

What our law does not support, however, is multiple prosecution of a defendant for the single, continuous possession of a weapon.

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

Order affirmed.

      . Because he pleaded guilty to the New York County charges, defendant forfeited his claim that the New York County prosecution was barred by the expanded double jeopardy protections set forth in CPL article 40 (see, People v Prescott, 66 NY2d 216, 218, cert denied 475 US 1150). He has never claimed the prosecution was barred by the double jeopardy provision in the New York Constitution (see, NY Const, art I, § 6). Accordingly, our inquiry is limited to whether defendant’s Federal constitutional rights were violated (see, People v Prescott, supra).

      . The defendant in Johnson pleaded guilty in Bronx County to attempted second degree criminal possession of a weapon, but his plea was in satisfaction of all charges in the Bronx County indictment, including the charge of criminal possession of a weapon in the third degree. Before this court, defendant argued that having once been prosecuted for third degree possession in Bronx County, he could not thereafter be charged with the same crime in New York County. We agreed and found that the New York County prosecution for third degree possession was barred.

      . We indicated in Matter of Johnson v Morgenthau (69 NY2d 148) that the fourth degree offense was a lesser included crime of the third degree offense. Our point was simply that the two crimes should be deemed the same for double jeopardy purposes (see, People v Llewelyn, 136 Misc 2d 525, 531; see also, Costarelli v Commonwealth, 374 Mass 677, 373 NE2d 1183). We did not mean to suggest that fourth degree possession of a weapon constituted a lesser included offense of the third degree crime within the narrow definition of lesser included offenses set forth in CPL 1.20 (37) (see, People v Rodriquez, 68 NY2d 674, revg on dissent at 113 AD2d 337, 343-348). With respect to this appeal it should be noted that third degree possession of a weapon is not a lesser included of the second degree offense (see, People v McGriff, 123 AD2d 646; see also, People v Rodriquez, supra; People v Ali, 36 NY2d 880; see generally, People v Glover, 57 NY2d 61).