author: Titone, J.

text:
    The People of the State of New York, Respondent, v Donna Williams, Michael P. Barrett, Martin Williams, Also Known as Marty Williams, Shelly J. McClure, Also Known as Shelly Jo McClure, Jeffrey J. Snyder and Robert A. Becher, Appellants.
    Argued January 4, 1989;
    decided February 14, 1989
    POINTS OF COUNSEL

      Dennis Schlenker for Donna Williams; Stephen R. Coffey for Michael P. Barrett; Mark B. Harris for Martin Williams; William M. Burke, for Shelly J. McClure;; Robert L. Adams for Jeffrey J. Snyder; and Jerome K. Frost for Robert A. Becher, appellants.
    I. As no unfinished business was pending before the Grand Jury at the time of the extension application and order, the Grand Jury was extended in violation of CPL 190.15 (1) and the indictment is jurisdictionally defective. (Matter of McClure v County Ct, 41 AD2d 148; Matter of Pesner v County Ct., 42 AD2d 275; People v Heller, 120 Misc 2d 85, 122 Misc 2d 991.) II. Since Mr. Canfield, the Rensselaer County District Attorney, disqualified himself from the within matter on October 5, 1987, he did not possess the power and jurisdiction to request an extension of the Grand Jury on October 8, 1987 for use thereafter by the Special District Attorney. III. As the Special Rensselaer County District Attorney has not sworn and filed the oath required by statute within the time provided by law, the office of the Special Rensselaer County District Attorney is now vacant and the acts of the Special Rensselaer County District Attorney are without jurisdiction. (Matter of Pardee, 259 App Div 101; Matter of Dawson v Knox, 231 App Div 490; Matter of Haller v Carlson, 42 AD2d 829; Ginsberg v City of Long Beach, 286 NY 400; Kingston Assocs. v LaGuardia, 156 Misc 116, 246 App Div 803; Virag v Hynes, 54 NY2d 437; People v Rao, 53 AD2d 904; People ex rel. Walton v Hicks, 173 App Div 338, 221 NY 503; Boisvert v County of Ontario, 89 Misc 2d 183, 57 AD2d 1051; McDonough v Murphy, 92 AD2d 1022, 59 NY2d 941.) IV. The orders signed by the Honorable M. Andrew Dwyer, Jr. appointing Donald J. Shanley, Special District Attorney and permitting him to utilize the office staff and facilities of the disqualified District Attorney, created an irreparable conflict of interest necessitating the dismissal of the indictment and disqualification of Donald J. Shanley from this case. (People v Fielding, 158 NY 542; Matter of Schumer v Holtzman, 60 NY2d 46; People v Kyser, 52 AD2d 1072; People v Causer, 43 AD2d 899; People v Lombard, 4 AD2d 666; People v Zimmer, 51 NY2d 390; People v Shinkle, 51 NY2d 417; People v De Freese, 71 AD2d 689; Greene v Greene, 47 NY2d 447; Cardinale v Golinello, 43 NY2d 288.) V. As a quorum of Grand Jury members was not present at the time the indictment was handed-up to the Rensselaer County Court, the indictment is jurisdictionally defective. (People v Herrmans, 69 Misc 303; People v Brinkman, 205 Misc 337; People v Pizzimenti, 13 Misc 2d 82; Matter of Wood v Hughes, 11 AD2d 893, 9 NY2d 144.)

      Donald, J. Shanley, Special District Attorney, for respondent.
    I. The court below properly found that the Grand Jury had jurisdiction to find the indictment. (People v AuClair, 74 Misc 2d 704; Matter of McClure v County Ct., 41 AD2d 148; Matter of Coonan v Roberts, 71 AD2d 563, 48 NY2d 604; Matter of Reports of Grand Jury of County of Montgomery Impaneled on Apr. 30, 1979, 88 AD2d 1054, 57 NY2d 924.) II. At a minimum, the Grand Jury should be regarded as a de facto Grand Jury. (Dolan v People, 64 NY 485; Matter of Pesner v County Ct., 42 AD2d 275; People v AuClair, 74 Misc 2d 704; People v Heller, 120 Misc 2d 85, 122 Misc 2d 991; Matter of Reports of Grand Jury of County of Montgomery Impaneled on Apr. 30, 1979, 88 AD2d 1054, 57 NY2d 924.) III. The failure to file the oath of office prior to July 18, 1988 is without significance here. (Matter of Delehanty, 202 Mise 33, 280 App Div 542, 304 NY 725; Waters v Connor, 11 Mise 2d 174; Matter of Pardee, 259 App Div 101; People ex rel. Walton v Hicks, 173 App Div 338, 221 NY 503; Ginsberg v City of Long Beach, 286 NY 400; McDonough v Murphy, 92 AD2d 1022.) IV. There is no irreparable conflict of interest. (Matter of Schumer v Holtzman, 60 NY2d 46; Matter of Kelley, 83 Mise 2d 776; Matter of Morgenthau v Crane, 113 AD2d 20.) V. The indictment is not jurisdictionally defective. VI. If the order appealed from be reversed and the indictment dismissed, permission should be granted to re-present to another Grand Jury.
   OPINION OF THE COURT

Titone, J.

A Grand Jury whose term has been extended due to uncompleted business under CPL 190.15 (1) may not consider entirely new matters during its extended term. Grand Jury proceedings conducted in violation of this rule are fatally defective, and any indictment resulting from such violation must be deemed the product of an "illegally constituted” Grand Jury. Accordingly, such an indictment must be dismissed without regard to any actual prejudice suffered by the accused.

The intricate chain of events underlying the present appeal began on August 10, 1987, when defendant Shelly McClure gave the City of Troy police a sworn deposition accusing her stepfather, defendant Martin Williams, of rape. Shortly after a felony complaint was filed, McClure’s mother, defendant Donna Williams, began urging her to withdraw her charges. According to McClure’s subsequent statement to the District Attorney, the subject of money arose, and an understanding was ultimately reached under which McClure would be paid $3,000 to "drop” the charges by signing a recantation statement prepared by defendant Michael Barrett, a local attorney who had previously practiced in partnership with the current District Attorney, James Canfield. Defendant Jeffrey Snyder, McClure’s boyfriend, participated in these conversations, as well as in the two meetings that were subsequently held in Barrett’s law office. A warrant for McClure’s stepfather’s arrest was, in fact, canceled on the strength of the statement McClure signed in Barrett’s office.

When these machinations came to the attention of the District Attorney’s office in mid-September of 1987, McClure and Snyder acknowledged having accepted money in exchange for McClure’s recantation. Defendant Barrett was promptly replaced by another lawyer as the stepfather’s attorney of record on the rape charge. According to McClure, the new lawyer, defendant Robert Becher, acting in concert with her mother, soon pressured her into signing a second sworn statement reaffirming her first recantation of the rape accusation and denying any criminal conduct by defendant Barrett. Subsequent events caused investigators to suspect Becher’s complicity in the efforts to tamper with McClure’s testimony.

During the period when these events were unfolding, a Rensselaer County Grand Jury was sitting, with its term scheduled to end on October 13, 1987. Shortly before that date, District Attorney Canfield sought to be relieved of any responsibility in the McClure matter because of his prior association with Barrett. Additionally, in a separate request, he and the current Grand Jury foreperson asked that the term of the sitting Grand Jury be extended to November 13, 1987 on the ground that "this Grand Jury ha[d] not yet completed its work or rendered to the Court a final handup.” Apparently, this request was made with the idea that the extended Grand Jury would investigate the McClure matter under the supervision of a Special Prosecutor, while the incoming Grand Jury, whose term was about to begin, was handling other, more routine matters under District Attorney Canfield’s supervision.

Pursuant to these separate requests, a Special Prosecutor was appointed to pursue the McClure investigation, and the term of the sitting Grand Jury was extended. The Grand Jury did not hear evidence or take any other action on the McClure matter before its original term expired. During its extended term, however, the Grand Jury heard evidence and issued an indictment charging defendants with bribery, conspiracy and various related counts.

In response to defendants’ CPL 210.20 motion, the trial court dismissed the indictment, holding that the extended Grand Jury had exceeded its jurisdiction by taking action on a matter wholly outside the investigations conducted during its original term (see, CPL 190.15 [1]). The Appellate Division, however, reversed and reinstated the indictment. The court initially noted that the order extending the Grand Jury’s term was facially proper, since it was based upon a representation by the District Attorney and the foreperson that the Grand Jury needed more time to complete its existing business. Relying on People v Stern (3 NY2d 658) and Matter of Reports of Grand Jury of Montgomery County Impaneled Apr. 30, 1979 (88 AD2d 1054, 1055), the court reasoned that " '[hjaving been properly extended, the Grand Jury was competent to take any action authorized by law, including even returning an indictment concerning a matter unrelated to its original investigation.’ ” (139 AD2d, at 141.) Moreover, the court held, even if the Grand Jury was not in "technical compliance” with the rules governing Grand Jury extensions, dismissal of the resulting indictments was not required, since the indicting entity was operating "under color of law” as a de facto Grand Jury, defendants were provided with "all the protections afforded by a de jure Grand Jury” (139 AD2d, at 142, 143) and there was no actual prejudice or violation of the accuseds’ constitutional rights. Having found both of these alternative rationales unpersuasive, we now reverse.

The use of the Grand Jury system as a bulwark against oppressive governmental action has long historical and common-law roots (see generally, People v Iannone, 45 NY2d 589). Nonetheless, within constitutional limits (NY Const, art I, § 6), the scope of the Grand Jury’s power, as well as the rules governing its formation and the remedies for violations of those rules, may be modified by statute. Indeed, article 190 of the Criminal Procedure Law contains extensive and detailed provisions affecting the manner in which the Grand Jury is to operate. It is to those provisions that we must look in determining the propriety of a particular holdover Grand Jury’s actions.

Before the adoption of the Criminal Procedure Law, this court held that a properly extended Grand Jury has the power to issue an indictment on a subject unrelated to the matters it was investigating during its original term (People v Stem, supra). In so ruling, the court relied on the generally broad powers vested in Grand Juries and noted that those powers should not be curtailed in the absence of a "clearly drawn statute” (id., at 662-663; see, former Code Crim Pro §§ 39, 40; cf., § 244). However, the proposition established in Stem (supra) is no longer viable under the current provisions of the Criminal Procedure Law.

CPL 190.15 (1) provides that upon the expiration of a Grand Jury’s term, "the court may, upon declaration of both the grand jury and the district attorney that such grand jury has not yet completed or will be unable to complete certain business before it, extend * * * the existence of such grand jury to a specified future date, and may subsequently order further extensions for such purpose” (emphasis supplied). This statute, which has no cognate in the former Code of Criminal Procedure, prescribes certain technical formalities necessary for extending Grand Juries, i.e., a joint application by the District Attorney and the Grand Jury foreperson (see generally, Matter of McClure v County Ct, 41 AD2d 148). However, the statute’s import is by no means limited to such formalities. To the contrary, the statute’s plain language limits Grand Jury extensions to those that are necessary to permit the completion of unfinished business. The statute thus has the substantive effect of curtailing a holdover Grand Jury’s jurisdiction. The apparent purpose was to eliminate the danger of "vestpocket” Grand Juries, a danger that was specifically identified by the dissenter in Stern (supra, at 664-665 [Fuld, J.]).

With that significant purpose in mind, we cannot agree that the statute was satisfied here merely because the technical requirement of a joint "unfinished business” declaration was fulfilled. It is undisputed that all of the Grand Jury’s pending matters were, in fact, actually completed by the end of the Grand Jury’s original term. Thus, there was no "unfinished business” for the holdover Grand Jury to consider during its extended term, and, regardless of the technical propriety of the Supreme Court’s extension order, the Grand Jury’s consideration of the McClure matter was wholly unauthorized.

Whether such an irregularity in the Grand Jury proceeding requires dismissal of the resulting indictment must also be determined by reference to the clear provisions of the Criminal Procedure Law. The Appellate Division’s conclusion — that dismissal was not required because the defect in the Grand Jury proceedings, if any, did not prejudice or affect a substantial right of the accused — was premised upon the "de facto” Grand Jury doctrine, which is derived from a line of cases that, in the main, predates the adoption of the present statutory scheme (see, e.g., Matter of McDonald v Colden, 294 NY 172; People v Youngs, 151 NY 210; People v Petrea, 92 NY 128; Dolan v People, 64 NY 485; but see, Matter of Seidenberg v County Ct, 34 NY2d 499). However, since the principle established in these cases has been incorporated, in modified form, in the pertinent provisions of CPL article 210, the analysis must be confined to the terms of that article.

CPL 210.20 (1) (c) authorizes a court to dismiss an indictment on the ground that "[t]he grand jury proceeding was defective, within the meaning of [CPL] 210.35”. CPL 210.35, in turn, sets forth four specific types of defects, including an "illegally constituted” Grand Jury and certain quorum deficiencies (CPL 210.35 [l]-[3]; see also, CPL 210.35 [4] [concerning failures to accord the target a right to testify]). A separate catchall provision is included for those proceedings which "otherwise fail to conform to the requirements of [CPL art 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35 [5] [emphasis supplied]). This catchall provision is the statutory equivalent of the common-law principle that an indictment issued by a legally constituted Grand Jury need not be dismissed because of a simple technical error if the accused was not prejudiced or the fundamental integrity of the process impaired.

The clear intention of the statute’s drafters was to establish a rule of automatic dismissal for a limited number of improprieties that were deemed most serious while leaving the common-law "de facto” Grand Jury principle intact for other, less serious infractions of the article 190 rules. Thus, in cases involving any of the specific defects delineated in CPL 210.35 (l)-(3), dismissal of the indictment is the necessary consequence, and judicial inquiries into prejudice to the accused or other forms of actual harm are wholly out of place.

In this instance, the defect in the Grand Jury proceeding was sufficiently serious to bring it within the statutory provisions for dismissal without regard to prejudice. Because the proceedings relating to the McClure matter were conducted by a Grand Jury that could not properly have been extended for that purpose, the resulting indictment must be deemed one issued by an "illegally constituted” Grand Jury within the meaning of CPL 210.35 (1). Hence, despite defendants’ failure to establish any actual prejudice or violation of their constitutional rights, dismissal of the indictment is the appropriate remedy (see also, People v Leahy, 72 NY2d 510).

Since we conclude that the order of the court below must be reversed because of this fundamental defect in the Grand Jury proceeding, we do not reach defendants’ contentions regarding other claimed defects arising from the conduct of District Attorney Canfield and the appointed Special Prosecutor.

Accordingly, the order of the Appellate Division should be reversed and the trial court order dismissing the indictment, without prejudice to resubmission, reinstated.

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

Order reversed and order of Rensselaer County Court reinstated.

       We reject the People’s suggestion that the McClure investigation could be considered a pending matter because the District Attorney had mentioned it to the Grand Jury foreperson before the Grand Jury’s original term had expired. Even if there were factual support on the record for the argument, we would not find it dispositive, since such informal communications are not sufficient to bring an existing law enforcement investigation within the official business of the Grand Jury as a whole (see generally, CPL 190.25 [1]).


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    In the Matter of Federation of New York State Rifle and Pistol Clubs, Inc., Respondent, v New York City Police Department et al., Appellants.
    Argued January 10, 1989;
    decided February 14, 1989

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Alan G. Krams and Fay Leoussis of counsel), for appellants.
    The names and home addresses of people holding permits for rifles and shotguns are exempt from mandatory disclosure under the Freedom of Information Law since release of this information would constitute an unwarranted invasion of personal privacy. (Matter of New York Teachers Pension Assn. v Teachers’ Retirement Sys., 71 AD2d 250, 49 NY2d 701; Matter of New York Veteran Police Assn. v New York City Police Dept., 92 AD2d 772, 61 NY2d 659; Disabled Officer’s Assn. v Rumsfeld, 428 F Supp 454; People ex rel. Westchester Fire Ins. Co. v Davenport, 91 NY 574; Pulitzer v City of New York, 48 App Div 6; Evans v Carey, 40 NY2d 1008; Matter of Kwitny v McGuire, 102 Misc 2d 124, 53 NY2d 968.)

      Jules W. Santagata, Jr., for respondent.
    A New York not-for-profit corporation which sends to each of its members an information newsletter containing legal and factual data concerning legitimate firearms ownership, as well as performs a variety of firearms-related work on behalf of legitimate firearms owners, is entitled under the State Freedom of Information Law to disclosure of New York City’s computerized list of rifle-shotgun permit holders, including their home addresses, for the purpose of soliciting them as members in the corporation. (Matter of New York Veteran Police Assn. v New York City Police Dept., 92 AD2d 772, 61 NY2d 659; Matter of New York Teachers Pension Assn. v Teachers’ Retirement Sys., 71 AD2d 250, 49 NY2d 701; Matter of Smigel v Power Auth., 54 AD2d 668; Evans v Carey, 40 NY2d 1008; Matter of Kwitny v McGuire, 102 Misc 2d 124, 77 AD2d 839, 53 NY2d 968; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Matter of Bates v Lang, 26 AD2d 462; Zahn v Pauker, 107 AD2d 118.)
   OPINION OF THE COURT

Hancock, Jr., J.

The question in this appeal by respondents, New York City Police Department and its Commissioner, is whether a request under the Freedom of Information Law (FOIL) for the names and addresses of persons holding rifle or shotgun permits for rifles and shotguns may be denied as an unwarranted invasion of personal privacy under Public Officers Law §§ 87 (2) (b) and 89 (2) (b) (iii). Petitioner, a nonprofit organization, seeks the names and addresses of such permittees in order to solicit membership dues to help support its informational, lobbying, and other activities. Respondents’ contention is that solicitation of membership dues to further the goals of a nonprofit organization is a form of "fund-raising” as the term is used in Public Officers Law § 89 (2) (b) (iii). Thus, it is argued, release of the names and addresses for such solicitation would constitute one of the specifically enumerated categories of unwarranted invasions of personal privacy for which disclosure may be withheld under the exemption established in Public Officers Law §87 (2) (b). Supreme Court rejected this contention and granted the relief demanded in petitioner’s CPLR article 78 proceeding. The Appellate Division affirmed without stating its reasons. We granted leave to appeal and now reverse.

In its solicitation circular petitioner describes itself as "the largest individual membership, pro-gun activist, state-wide organization whose sole function is to defend * * * 'the right of the people to keep and bear arms’ ” (emphasis in original). It lists various services and amenities provided to its members including free legal advice, replies to media attacks on a member’s right to own firearms, political action to assist legislators friendly to petitioner’s cause, and active cooperation with the National Rifle Association and its Institute of Legislative Action. Annual membership rates are $15 for an individual and $30 for a club.

Prior to commencing the instant proceeding, petitioner, in an earlier CPLR article 78 proceeding, had succeeded in obtaining the police department’s computer print-out of all New York City pistol-revolver licensees as public records under Penal Law § 400.00 (5). In its initial decision in this proceeding, Supreme Court — while recognizing that permits for rifles and shotguns, unlike licenses for pistols or revolvers, were not public records under Penal Law § 400.00 (5) — nevertheless held that the names and addresses of such permittees were required to be released as public records under the comparable provision in New York City Administrative Code, chapter 18, § 436-6.0 et seq. (now § 10-301 et seq.). Although deciding, on motion for reargument, that the New York City Administrative Code was not applicable, Supreme Court nevertheless adhered to its original determination. The court, citing Matter of New York Veteran Police Assn. v New York City Police Dept. (92 AD2d 772, revd on other grounds 61 NY2d 659), held that the information was sought for neither commercial nor fund-raising purposes and was, therefore, not exempt under Public Officers Law § 87 (2) (b).

Respondents make no claim that petitioner, as a not-for-profit corporation, seeks the names and addresses for commercial use. Their sole contention is that petitioner’s solicitation of membership dues amounts to fund-raising and that, therefore, the release of the information sought for such purpose would constitute an unwarranted invasion of the permittees’ privacy under section 89 (2) (b) (iii). We believe this conclusion is compelled by a fair construction of the statutory provision.

FOIL, we have emphasized, is based on the strong policy conviction that "the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government” (Matter of Fink v Lefkowitz, 47 NY2d 567, 571). Indeed, in its declaration of purpose in enacting FOIL the Legislature stated "that government is the public’s business and that the public, individually and collectively as represented by a free press, should have access to the records of government in accordance with the provisions of this article” (Public Officers Law § 84). For these reasons, we have repeatedly held "that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government (see, Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 564, citing Matter of Fink v Lefkowitz, supra, at p 571)” (Matter of Capital Newspapers v Whalen, 69 NY2d 246, 252). The exemptions must, nonetheless, be given their natural and obvious meaning where such interpretation is consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL (see generally, Matter of Capital Newspapers v Whalen, 69 NY2d 246, 251-252, supra).

Applying these general rules, we look first to the particular statutory language on which respondents base their claim of exemption. Public Officers Law § 87 (2) (b) (iii) includes as an "unwarranted invasion of personal privacy” the "sale and release of names and addresses if such lists would be used for commercial or fund-raising purposes”. There can be little question that the direct-mail membership solicitation proposed here would constitute "fund-raising” if that term is given its natural and most obvious meaning (see, Matter of Capital Newspapers v Whalen, supra, at 251; McKinney’s, Cons Laws of NY, Book 1, Statutes § 94). Petitioner seeks the names and addresses of rifle and shotgun permittees so that it may mail them circulars describing the organization, its activities, and the services it performs for members. The circular contains a statement of "annual membership rates” for both individuals and clubs and a detachable "membership application” to be completed and returned with the requisite payment. It is not disputed that a primary reason for conducting this general mail solicitation is to obtain membership dues to support the organization’s activities. Simply put, the proposed mailing is to raise funds.

We reject petitioner’s argument — relying on Matter of New York Teachers Pension Assn. v Teachers’ Retirement Sys. (71 AD2d 250, 256) and New York Veteran Police Assn. v New York City Police Dept. (92 AD2d 772, supra) — that seeking membership dues to promote the aims of a nonprofit organization is different from directly soliciting contributions. It is the purpose of the solicitation which matters, not what it is called, the manner or form in which it is presented to the solicitees, or the incidental benefits available to those who make a payment — as, for example, in the case before us, the receipt of the organization’s bimonthly newspaper or free legal advice in firearms licensing cases. If, as is unquestionably true here, dues received are intended to support the general activities of the organization and to further its over-all objectives, the solicitation activity is "fund-raising”.

Our construction of the term "fund-raising” is not in any sense inimical to the policies of FOIL. It does not deny disclosure of official information helpful to the public in making "intelligent, informed choices with respect to both the direction and scope of governmental activities (see Public Officers Law, § 84).” (Matter of Fink v Lefkowitz, supra, at 571.) It is not even suggested that disclosure of the names and addresses of the permittees would promote this objective. Indeed, it is precisely because no governmental purpose is served by public disclosure of certain personal information about private citizens that the privacy exemption of section 87 (2) (b) fits comfortably within FOIL’S statutory scheme. Thus, the rights of individuals to be free from unwanted commercial contacts or nonprofit fund-raising efforts — specifically recognized by the Legislature in the exemption at issue here — can be given precedence without undercutting FOIL’S purpose. In deciding what the Legislature intended to include in this particular category of exempted records, it is not for us— contrary to the suggestion in petitioner’s brief — to weigh the degree of annoyance or intrusion which would result from the receipt by mail of dues solicitations. It is enough that the Legislature has seen fit to classify the release of the names and addresses of individuals for use in such fund-raising efforts as an unwarranted invasion of their privacy.

In view of the foregoing, it is unnecessary to address the other arguments presented in the briefs.

Accordingly, the order appealed from should be reversed, with costs, and the petition dismissed.

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

Order reversed, etc.

       Public Officers Law § 87 (2) (b) states:
      "2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: * * *
      "(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article”.
      Public Officers Law § 89 (2) (b) (iii) provides:
      "(b) An unwarranted invasion of personal privacy includes, but shall not be limited to: * * *
      "iii. sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes”.


text:
    Samy Rizk et al., Appellants, v Noel L. Cohen et al., Respondents.
    Argued January 10, 1989;
    decided February 16, 1989

      POINTS OF COUNSEL

      David B. Turret, Alfred S. Julien and Mary Elizabeth Burns for appellants.
    I. In the face of issues of fact as to whether defendants’ treatment of plaintiff continued into 1983 when at the instance of defendants, he was asked to return for followup care for the same condition, the trial court erred in granting the drastic remedy of summary judgment dismissing the complaint as barred by the Statute of Limitations. (Borgia v City of New York, 12 NY2d 151; McDermott v Torre, 56 NY2d 399; Richardson v Orentreich, 64 NY2d 896; Brush v Olivo, 81 AD2d 852; DeJurenev v Robins Co., 114 AD2d 333; Barrella v Richmond Mem. Hosp., 88 AD2d 379; Ward v Kaufman, 120 AD2d 929; Fonda v Paulsen, 46 AD2d 540; Davis v City of New York, 38 NY2d 257.) II. A physician should be estopped from pleading a malpractice Statute of Limitations defense when the facts indicate that the patient relied upon the misrepresentations as to the true nature of his condition so as to prevent him from commencing suit or seeking alternative treatment. (Simcuski v Saeli, 44 NY2d 442; Floria v Cook, 48 NY2d 792.)

      Steven I. Brizel for Noel L. Cohen, respondent.
    I. In the absence of a physician-patient relationship between plaintiff and Dr. Cohen after April 17, 1980, the lower courts ruled correctly that plaintiff’s action was barred by the Statute of Limitations. (Borgia v City of New York, 12 NY2d 151; Fonda v Paulsen, 46 AD2d 540; Meath v Mishrick, 68 NY2d 992; Davis v City of New York, 38 NY2d 257; Bleiler v Bodner, 102 AD2d 226, 65 NY2d 65; De Peralta v Presbyterian Hosp., 121 AD2d 346; Richardson v Orentreich, 64 NY2d 896; DeJurenev v Robins Co., 114 AD2d 333; Barrella v Richmond Mem. Hosp., 88 AD2d 379; Bennin v Ramapo Gen. Hosp., 72 AD2d 736.) II. The lower court ruled correctly that plaintiff failed to set forth a cause of action for fraudulent concealment against defendant. (Simcuski v Saeli, 44 NY2d 442.)

      Howard R. Cohen for New York University Medical Center, respondent.
    I. The action was properly dismissed as to defendant NYU Medical Center since plaintiffs’ suit commenced in 1984 was untimely as to any claims arising out of the hospitalization of April 1980. (Borgia v City of New York, 12 NY2d 151; Davis v City of New York, 38 NY2d 257; Barrella v Richmond Mem. Hosp., 88 AD2d 739; DeJurenev v Robins Co., 114 AD2d 333; Marlowe v DuPont deNemours & Co., 112 AD2d 769; Daniec v Synthes Ltd. USA, 110 AD2d 675; Salato v Gross, 84 AD2d 563; Renda v Frazier, 100 Misc 2d 511, 75 AD2d 490; Bennin v Ramapo Gen. Hosp., 72 AD2d 736; Tool v Boutelle, 91 Misc 2d 464.) II. Plaintiffs have demonstrated no basis for an estoppel or the application of the fraud Statute of Limitations. (Simcuski v Saeli, 44 NY2d 442; Mitchell v Spataro, 89 AD2d 599; Monroe v Long Is. Coll. Hosp., 84 AD2d 576.)
   OPINION OF THE COURT

Titone, J.

In this appeal, we once again address the doctrine of continuous treatment, which was first established in Borgia v City of New York (12 NY2d 151) and was later codified in CPLR 214-a. We hold that the requirements of that doctrine are, as a matter of law, not satisfied when there has been mere reliance on a diagnosis, combined with subsequent doctor-initiated contact after an extended period with no physician-patient contact and the absence of objective factors indicating that this period had been expressly contemplated by the parties.

In January 1980 plaintiff Sarny Rizk, an anesthesiologist at New York University Medical Center (Medical Center), began to experience ringing in his ears. After some initial testing and consultation with colleagues proved futile, plaintiff was referred in April 1980 to defendant Dr. Noel Cohen, an otolaryngologist, who was also affiliated with the Medical Center. Dr. Cohen sent plaintiff for a speech test, an audio-gram, and hot and cold stimulation. When these tests provided inconclusive evidence, Dr. Cohen had plaintiff admitted to the Medical Center. On April 17, 1980 plaintiff underwent a Cat Scan, an IV injection, a contrast injection, a myelogram and an encephalogram. The purpose of these tests was to determine whether plaintiff’s symptoms were indicative of an acoustic neuroma.

In evaluating the results of the tests, Dr. Cohen consulted with Dr. Chase, a radiologist employed by defendant Medical Center. Dr. Chase’s report following the tests indicated "soft tissue mass completely filling left internal auditory canal, a presumed acoustic neuroma”. In addition, the patient’s discharge summary, prepared by a hospital resident, noted as a final diagnosis "Rule out left internal auditory canal acoustic neuroma.”

Although it is clear that the doctors had discussed the possibility of acoustic neuroma between themselves, there is a dispute as to what Dr. Cohen told plaintiff about his condition. Dr. Cohen claimed that he advised plaintiff that the problem was most likely an acoustic neuroma which would have to be monitored, and that plaintiff should return in six months for another Cat Scan. Plaintiff, on the other hand, testified that although they had discussed the possibility of acoustic neuroma prior to the tests, Dr. Cohen specifically told him that all the tests were negative, that the problem looked like a viral infection and that there was nothing to worry about. Plaintiff was discharged from the hospital on April 18, 1980.

There was no further contact between the parties until October 1983, when Dr. Cohen noticed the slides of plaintiff’s earlier tests while reviewing some slides for a lecture. Realizing he had not heard from plaintiff in over three years, Dr. Cohen contacted him to ask his permission to use his slides for the lecture, and to see what he had done about his ear condition. After learning that plaintiff had done nothing since April of 1980, Dr. Cohen suggested that plaintiff have another Cat Scan, and a brain stem evoked response test (BSER), a new noninvasive audio metric test which was unavailable in 1980.

The tests revealed an acoustic neuroma which required immediate removal. As a result of the surgery, plaintiff claims he was left with a permanent hearing loss in his left ear, left side tinnitus, balance disturbance, left facial weakness and a loss of sensation in his left side and tongue. On May 2, 1984, plaintiff commenced this malpractice action against Dr. Cohen and the Medical Center, alleging negligence and fraudulent misrepresentation.

Defendant Medical Center moved to dismiss the complaint on the grounds that the action was time-barred and substantially lacking in merit. Defendant Dr. Cohen also moved to dismiss on the ground that the action was time-barred. Plaintiff opposed the motions, arguing that under the continuous treatment exception to the medical malpractice Statute of Limitations the action was not time-barred. He also argued that defendants should be estopped from asserting the Statute of Limitations defense due to their fraudulent concealment.

Supreme Court granted defendants’ motions for summary judgment on the ground that the action was time-barred. The court held that plaintiff did not come within the continuous treatment exception because treatment cannot be considered continuous, as a matter of law, when the interval between the malpractice complained of and the last visit exceeds the Statute of Limitations (see, Curcio v Ippolito, 97 AD2d 497, affd on other grounds 63 NY2d 967; Bennin v Ramapo Gen. Hosp., 72 AD2d 736; but see, Lomber v Farrow, 91 AD2d 725; see also, Renda v Frazer, 100 Misc 2d 511, affd 75 AD2d 490). Further, the court held that plaintiff had not established the elements of fraudulent concealment and misrepresentation, and thus defendants could not be estopped from raising the Statute of Limitations as a defense. The Appellate Division, First Department, unanimously affirmed, without opinion. We granted leave to appeal, and now affirm but for different reasons from those stated by Supreme Court.

At the outset, since plaintiff was discharged on April 18, 1980, and did not commence this action until May 2, 1984, it is clear that plaintiff’s action is time-barred under the applicable Statute of Limitations of 2Vi years (CPLR 214-a), unless continuous treatment is found to exist from the date of the original diagnosis through Dr. Cohen’s initiation of contact with the plaintiff in October 1983. Although this malpractice action accrued on April 18, 1980, if continuous treatment is found to exist, the Statute of Limitations was tolled during the 3V2 years between plaintiffs contact with Dr. Cohen (see, McDermott v Torre, 56 NY2d 399, 407), and plaintiffs action would be timely.

Citing our decision in Richardson v Orentreich (64 NY2d 896), plaintiff argues there was a continuing relationship of trust and confidence between plaintiff and Dr. Cohen which began with plaintiffs reliance upon the initial diagnosis, and continued through Dr. Cohen’s contacting the plaintiff in October 1983 (see, Coyne v Bersani, 61 NY2d 939, 940; Greene v Greene, 56 NY2d 86, 94). Plaintiffs reliance on Richardson is misplaced. In Richardson, we held that "when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future” (id., at 898-899), continuous treatment did not necessarily come to an end upon the patient’s last visit. That there was no contact between doctor and patient during the interim in Richardson was not dispositive because an ongoing physician-patient relationship was contemplated and, accordingly, the presumed continuing trust and confidence which underlies the continuous treatment doctrine was present.

Here, however, accepting plaintiffs version of the facts as we must on this summary judgment motion (Weiss v Garfield, 21 AD2d 156), it is clear that an ongoing relationship, as demonstrated by the existence of scheduled future appointments was not contemplated. Indeed, according to plaintiffs version of the facts, a future appointment would never have been made because he was told, perhaps erroneously, that there was nothing wrong with him. Thus, since neither the "continuing nature of a diagnosis” (McDermott v Torre, 56 NY2d 399, 406, supra), nor the "mere continuity of a general physician-patient relationship” (Borgia v City of New York, 12 NY2d 151, 157, supra), is sufficient to establish continuous treatment, plaintiffs position must stand or fall solely upon Dr. Cohen’s October 1983 phone call. In this regard, plaintiff argues that since Dr. Cohen initiated contact with him, there is at least a question of fact as to whether a continuing relationship of trust and confidence existed. We disagree.

In Borgia v City of New York (12 NY2d 151, supra), the seminal case on the continuous treatment doctrine, we recognized that "[i]t would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician or hospital” (id., at 156). Thus, under the continuous treatment doctrine, "the time in which to bring a malpractice action is stayed 'when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint’ ” (McDermott v Torre, 56 NY2d 399, 405, supra, quoting Borgia v City of New York, 12 NY2d 151, 155, supra). The purpose of this doctrine is to ameliorate the harshness of a rule which ties accrual of a malpractice action to the date of the offending act (Lillich, Malpractice Statute of Limitations in New York and Other Jurisdictions, 47 Cornell LQ 339, 361), thereby creating a dilemma for the patient, who must choose between silently accepting continued corrective treatment from the offending physician, with the risk that his claim will be time-barred or promptly instituting an action, with the risk that the physician-patient relationship will be destroyed.

The cases illustrate that the determination as to whether continuous treatment exists, must focus on the patient. When "a timely return visit instigated by the patient” is made, the policies underlying the continuous treatment doctrine are implicated and the toll is properly invoked (McDermott v Torre, 56 NY2d 399, 406, supra [emphasis supplied]). However, where, as here, plaintiff did not seek corrective treatment and, in fact, allegedly did not even know that further treatment was necessary, there is no sound basis for applying the continuous treatment doctrine. Having purportedly been unaware of the need for further treatment, plaintiff was never confronted with the dilemma that led to the judicial adoption of the continuous treatment doctrine. That a degree of continuity exists by virtue of Dr. Cohen’s unilateral initiative in October 1983 is unhelpful to plaintiff’s position because that contact does not establish the continuing trust on the plaintiff’s part that the continuous treatment doctrine requires.

Furthermore, sound policy reasons suggest that mere doctor-initiated contact, in the absence of other objective factors indicative of a continuing relationship, should not fall under the continuous treatment doctrine (see, De Peralta v Presbyterian Hosp., 121 AD2d 346; cf., Ward v Kaufman, 120 AD2d 929 [doctor-initiated contact was sufficient to satisfy continuous treatment doctrine because it was reasonable to assume that doctor would want to X-ray or adjust plaintiffs cast]). Clearly, it is in society’s best interest to foster honest communication between physician and patient. Allowing continuous treatment to be invoked solely on a doctor-initiated communication might, we fear, encourage silence. Instead of suggesting new techniques, or pointing out a potential mistake from years earlier, a doctor fearful of a medical malpractice action might simply refrain from contacting a former patient. Here, for instance, since plaintiff had no knowledge of the potential misdiagnosis, it was ultimately in his best interest that Dr. Cohen contacted him. Indeed, Dr. Cohen suggested both a Cat Scan and a BSER, a test which was unavailable in 1980. Had Dr. Cohen not contacted plaintiff, the acoustic neuroma would have continued to grow, and no doubt the surgery would have been more serious, and the permanent damage more severe. We believe that the continuous treatment doctrine should not become a trap for a concerned physician who is simply trying to administer care to a patient.

Finally, although plaintiff strenuously argues that summary judgment is inappropriate because of the clear dispute in the facts, we conclude there are no legally dispositive facts in dispute concerning the application of the continuous treatment doctrine (see, CPLR 3212). In our view the medical services rendered by Dr. Cohen and the Medical Center were discrete and complete in April 1980, and the contact initiated by Dr. Cohen in October 1983 was a renewal, rather than a continuation, of the physician-patient relationship. Accordingly, we conclude, as a matter of law, that the doctrine of continuous treatment may not be invoked by plaintiff (see, Curcio v Ippolito, 63 NY2d 967, supra; McDermott v Torre, 56 NY2d 399, 405, supra; Davis v City of New York, 38 NY2d 257; Charalambakis v City of New York, 46 NY2d 785).

In addition, plaintiffs fraudulent concealment claim is without merit. In support of his claim that there was a fraudulent misrepresentation, plaintiff relies on the same act which forms the basis of his negligence claim — Dr. Cohen’s alleged improper advice to plaintiff that there was nothing wrong. Thus, plaintiffs allegations do not establish that Dr. Cohen, acting with knowledge of prior malpractice, made subsequent misrepresentations in an attempt to conceal his earlier negligence (see, Simcuski v Saeli, 44 NY2d 442, 443).

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

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

Order affirmed, with costs.

      . "An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure” (CPLR 214-a).

      . During his EBT, Dr. Cohen testified that "to rule out something” means "that it is something that is to be seriously considered, but it cannot be definitely established”; the phrase is "used by residents and medical students when they are not sure of the diagnosis.”

      . In effect, plaintiff’s argument seeks an extension of the discovery rule (CPLR 214-a). However, this court has consistently refused to judicially adopt the so-called "discovery rule” (see, Thornton v Roosevelt Hosp., 47 NY2d 780; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427), leaving such rule making to the Legislature (see, CPLR 214-a, 214-b, 214-c, 203 [f|).


author: Chief Judge Wachtler.

text:
    The People of the State of New York, Respondent, v David Drain, Appellant.
    Argued January 6, 1989;
    decided February 14, 1989

      POINTS OF COUNSEL

      Carl H. Dobozin for appellant.
    I. There was no probable cause to search the sealed package in defendant’s car. (People v Harrison, 57 NY2d 470; People v De Bour, 40 NY2d 210.) II. Defendant did not consent to any search. III. Regardless of consent the police action amounted to a "seizure” without probable cause. (People v De Bour, 40 NY2d 210; People v Brnja, 50 NY2d 366.) IV. Defendant has standing to challenge the search of the vehicle, packages and luggage. (People v Ponder, 54 NY2d 160; People v Gonzalez, 115 AD2d 73; Fonseca v Regan, 734 F2d 944; Dunbar v United States, 502 F2d 506.) V. The prosecution maintains the exclusionary rule should not be applied pursuant to People v McGrath and Matter of Mancini v Codd (46 NY2d 12) and United States v Turk (526 F2d 654). These cases deal with the theory of attenuation cases in which testimonial evidence obtained from a tainted source, the exclusionary rule would not be involved. (People v McGrath, 46 NY2d 12; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647.) VI. The indictment herein should be dismissed pursuant to CPL 450.50.

      Kevin M. Dillon, District Attorney (Jo W. Faber, John J. DeFranks and J. Michael Marion of counsel), for respondent.
    I. The evidence was properly seized. (People v Henley, 53 NY2d 403; Brinegar v United States, 338 US 160; People v Ellis, 62 NY2d 393; United States v Ross, 456 US 798; People v De Bour, 40 NY2d 210; People v Langen, 60 NY2d 170; Rawlings v Kentucky, 448 US 98; United States v Johns, 469 US 478.) II. The exclusionary rule does not protect defendant from prosecution for committing perjury before the Grand Jury. (People v McGrath, 46 NY2d 12; United States v Calandra, 414 US 338; United States v Turk, 526 F2d 654, 429 US 823; Tirado v Commissioner of Internal Revenue, 689 F2d 307; Virag v Hynes, 54 NY2d 437; People v Rao, 73 AD2d 88; United States v Raftery, 534 F2d 854, 429 US 862; People v Kates, 53 NY2d 591.)
   OPINION OF THE COURT

Chief Judge Wachtler.

At 10 o’clock on February 26, 1984, in the Town of Cheektowaga, the Children’s Hospital Telethon was taking place at the Executive Hotel. Defendant was alone in the back seat of a Plymouth Volare parked in the hotel’s lot. Apparently he was arranging something in the trunk, which he reached by removing a portion of the auto’s back seat.

A New York State Trooper on routine patrol noticed defendant, and, his interest piqued by defendant’s motions and the Canadian license plates on the Volare, he decided to investigate further. His suspicion was heightened when defendant ducked down in the back seat as the Trooper approached the car. The Trooper then saw in the trunk, through the space created by the removed back seat, 13 rectangular packages, each approximately 13 inches long and 6 inches wide. This exchange followed, in substance:

"Trooper: What are you doing?
"Defendant: I’m putting packages in the car.
"Trooper: What’s in the packages?
"Defendant: Money.
"Trooper: Money?
"Defendant: Money.
"Trooper: Your money?
"Defendant: No.
"Trooper: Who’s money?
"Defendant: I don’t know.
"Trooper: It’s not your money, and you don’t know whose money it is?
"Defendant: That’s correct.”

The Trooper reached into the car and took one of the packages. He cut it open and saw bills. Suspecting, perhaps, a case of purloined pledges, or some other malfeasance, the Trooper handcuffed defendant, placed him in the patrol car, and brought him to the station. It was later determined that the packages contained $815,000 in cash.

At the station, upon request, defendant relinquished the keys to the Volare’s trunk. Luggage was found in the trunk, and a search of the bags disclosed, among other things, a single Valium tablet, and a few pills of Canadian manufacture allegedly containing codeine. The Troopers also discovered a checkbook, which, along with the $815,000, is the subject of the present appeal. Defendant was charged with two counts of misdemeanor possession of a controlled substance.

Subsequently, defendant was subpoenaed to testify before the Grand Jury regarding the $815,000. He was granted immunity. When questioned about certain entries in the checkbook, defendant responded that they corresponded to money defendant received from his uncle.

The misdemeanor charges against defendant were dismissed. However, he then was indicted for perjury, for allegedly falsely testifying about the checkbook entries. In the perjury prosecution defendant moved to suppress the checkbook and the $815,000, on the ground that it was illegally seized from him. The trial court agreed, and suppressed. The Appellate Division, while also concluding that the arrest was unlawful, nevertheless held that the facts of this case did not warrant suppression, and therefore reversed.

The trial court’s determination that the checkbook and the money were illegally seized from defendant was undisturbed by the Appellate Division, and, finding support in the record, is beyond our further review (see, e.g., People v Jones, 69 NY2d 853, 855). The question then becomes whether these items must be suppressed in this perjury prosecution. We agree with the Appellate Division that they should not be suppressed.

The exclusionary rule’s primary function is deterrence of future unlawful police activity; the rule has never been viewed as a "personal remedial right of a party aggrieved” by the misconduct (People v McGrath, 46 NY2d 12, 21; People v Adams, 53 NY2d 1, 9). This court has long recognized, therefore, that the application and scope of the exclusionary rule is ascertained by balancing the foreseeable deterrent effect against the adverse impact of suppression upon the truth-finding process (see, e.g., People v Harris, 72 NY2d 614, 621-622; People v McGrath, supra, at 21; People v Boodle, 47 NY2d 398, 404). Consequently, we consistently have refused to suppress relevant evidence if little or no deterrent benefit could be anticipated from the exclusion (see, e.g., People v Rogers, 52 NY2d 527, 535; People v Arnau, 58 NY2d 27).

In People v McGrath (supra), these principles were applied in a situation similar to the present one. In that case, following an illegal wiretap by the police, defendant was called to testify before the Grand Jury. Although he was granted immunity, defendant allegedly answered questions evasively, which led to his indictment for criminal contempt. In the contempt prosecution defendant moved to suppress his Grand Jury testimony, as the product of the illegal wiretap. The court first applied attenuation principles, and held that answering evasively before the Grand Jury, after having been granted immunity, "constituted acts sufficiently independent of the illegal wiretap so as to dissipate any taint” flowing from the police misconduct (id., at 28-29). The court then undertook a deterrence analysis, and held that suppression was not warranted due to the insubstantial deterrence benefit realized from excluding immunized Grand Jury testimony in a subsequent contempt prosecution (id., at 21, 29).

In the case now before us defendant argues that People v McGrath (supra), does not apply, because here defendant seeks suppression of the illegally seized objects — the checkbook and the money — while People v McGrath concerned only suppression of Grand Jury testimony, and not the exclusion of the illegal wiretap itself. This distinction does render the attenuation discussion in People v McGrath inapplicable in this case. The People v McGrath deterrence analysis, however, directly applies here, and leads to the conclusion that suppression is not required. Indeed, courts assessing the propriety of suppression in cases substantially identical to the present one have refused to suppress, based upon the lack of deterrent effect (see, United States v Turk, 526 F2d 654; United States v Raftery, 534 F2d 854; see also, 4 LaFave, Search and Seizure § 11.6 [c] [2d ed]).

In United States v Turk (supra), an illegal seizure of an audiotape occurred. Defendant then testified before the Grand Jury, with immunity, at which time he allegedly committed perjury. In the perjury prosecution the court refused to suppress the tape recording, holding that where the defendant was aware of the seizure, and, after being granted immunity, nevertheless testified perjuriously before the Grand Jury, any small deterrent effect could not justify exclusion of the tape to prove perjury. The court reasoned that "[f]or suppression of the tape at the perjury trial to have any significant deterrent effect, we would have to assume that the police could be so confident that an immunized search victim would prevaricate before a grand jury that they would be willing to seize evidence of a crime illegally, and thus to forego the possibility of direct prosecution. We refuse to make such .an assumption” (id., at 667).

United States v Raftery (supra) involved a very similar factual situation, and a largely identical analysis and conclusion. In that case drugs and drug manufacturing equipment were illegally seized from defendant’s home. Defendant was arrested in his bedroom, where some of the seized items were found. After having been granted immunity, defendant testified before the Grand Jury that he had never been in a place in which drugs were manufactured. In his subsequent perjury prosecution, defendant moved to suppress the items seized from his home. The court refused to suppress, stating that "[t]he deterrent effect of excluding the evidence * * * would be minimal”, and concluding that, under the facts of that case, the purpose of the exclusionary rule "would not be served by forbidding the Government from using the evidence to prove the entirely separate offense of perjury before a grand jury” (id., at 857).

In the case now before us defendant obviously knew before testifying before the Grand Jury, with immunity, that his belongings had been searched and that the checkbook and the $815,000 had been found. The illegally seized evidence of course would be subject to suppression in a direct prosecution. It is unreasonable, therefore, to believe that the police, in the future, will jeopardize a direct prosecution in hopes that an immunized defendant, aware that the authorities have discovered evidence to refute his statement, will perjure himself before the Grand Jury. Consequently, we agree that the deterrent effect of suppressing is negligible in this situation, and that exclusion of relevant evidence, therefore, is not warranted. Moreover, excluding this evidence would approach the granting of a "license to commit perjury,” by rendering false statements made before the Grand Jury immune from successful prosecution (see, People v McGrath, supra, at 29). Given the lack of deterrent effect to be gained by suppression here, such a result is unjustified.

We have examined defendant’s remaining contentions, and conclude that they are without merit.

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

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

Order affirmed.