author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Rowland W. Dory, Appellant.
    Decided June 7, 1983

      APPEARANCES OF COUNSEL

      John Joseph Suttor and Ruth C. Balkin for appellant.

      Denis Dillon, District Attorney (George Freed, Judith R. Sternberg and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Meyer, J.

The discretion granted a Trial Judge by the authorization of “other appropriate action” contained in CPL 240.70 (subd 1) includes vacatur of a suppression order entered by a hearing Judge of co-ordinate jurisdiction, the suppression order having been predicated not upon any Fourth Amendment violation, but upon the People’s denial of possession of any suppressible evidence or testimony. There was, moreover, sufficient evidence independent of that of the accomplices to meet the corroboration requirement of CPL 60.22 (subd 1) and the Trial Judge’s charge adequately apprised the jury of the need for independent evidence. The order of the Appellate Division should, therefore, be affirmed.

Defendant was indicted, along with Samuel Genova, Edward Strahm, Sergio Fernandez, Jesus Guerrero and Richard Napolitano for a sale of cocaine that occurred on January 17, 1980. The charges against Fernandez and Guerrero were dismissed upon their motions to inspect the Grand Jury minutes. Napolitano, Genova and Strahm pleaded guilty to lesser charges. Genova and Strahm testified at defendant’s trial.

On the evidence the jury could have found that Genova met Robert Anderson, an undercover police officer, in December, 1979, and over the next several weeks sold him small quantities of marihuana and cocaine. When Anderson told Genova he wanted to purchase a larger quantity, Genova called Strahm, who was the roommate of Genova’s nephew Napolitano, and Strahm agreed to sell Anderson three ounces of cocaine for $7,500 and divide his profit with Genova. Prior to January 17, Genova had never met defendant and did not know who Strahm’s supplier was.

On January 17, Strahm, Genova, Napolitano and Anderson met in a parking lot in Carle Place and drove to a doughnut shop. There Strahm, having agreed to obtain a “taste” (sample) of cocaine for Anderson, placed a telephone call. Strahm and Napolitano then drove to a bar in Garden City. There James Wohl, a detective who had the bar under surveillance, observed the defendant drive up. Defendant remained in his car and shook hands with Strahm. Wohl followed defendant’s car to defendant’s home in Garden City.

Strahm and Napolitano returned to the doughnut shop and Strahm handed Anderson a vial containing cocaine. At this point Anderson got out of the car, supposedly to get the $7,500 payment from the trunk of his car, and Strahm, Napolitano and Genova were arrested by a surveillance team.

After the arrest Strahm agreed to co-operate with the police. He placed a telephone call to someone whom he addressed as “Ronnie” and arranged to conclude the transaction at the house where “Ronnie” was. The telephone call was tape recorded. Strahm and Anderson drove to defendant’s house and Strahm went in. Strahm emerged from the house and handed three plastic bags containing cocaine to Anderson. Anderson pretended to give him money and Strahm returned to the house. Defendant opened the door for Strahm.

Anderson rushed to the door, identified himself as a police officer and demanded that it be opened. When no one responded, he broke through the locked door and entered. Other officers broke through the rear door. Strahm and defendant were arrested in the living room, Fernandez and Guerrero in the basement. In the basement Anderson saw a triple beam scale, a razor blade, a metal pot and a strainer. There was water on the floor, in the pot and on the trousers of Fernandez and Guerrero. Also in the house, but not arrested, were defendant’s mother, brother and sister and a child who was not seen but whose cries were heard by one of the arresting officers.

Genova testified to the background facts concerning the introduction of Anderson to Strahm and to the events of January 17 up to the point of arrest. Strahm testified to the details of the transaction, that defendant supplied him with the cocaine to be sold to Anderson, that the other party to the tape recorded conversation with “Ronnie” was defendant and that a large quantity of white powder was on the pingpong table in defendant’s basement just prior to the raid.

On March 12, 1980, defendant demanded discovery pursuant to GPL 240.20 (subd 1, par [e]) of which covers property taken from defendant, and two days later moved for suppression of evidence seized in violation of the Fourth Amendment or of statute. The People’s affirmation in opposition stated affirmatively that “no evidence other than the defendant’s person was seized in defendant’s house.” On September 16, 1980, the hearing Judge in reliance on that statement denied the suppression motion as moot and precluded the People from offering at trial any evidence seized in defendant’s house or from his person.

Payton v New York (445 US 573), decided the preceding April, prompted defense counsel to move on November 6, 1980 for renewal of the suppression motion. The People’s affirmation in opposition reiterated that no physical or tangible evidence had been seized from defendant’s house or person, but the matter proceeded to hearing because defendant sought to suppress also “anything that the officer[s] observed or heard upon their illegal entry into the premises.” The motion was denied, the hearing Judge holding that Payton was not retroactive but that, even if it were, (1) Officer Anderson had probable cause to enter defendant’s house and arrest him because Strahm was a reliable informant and his production of the cocaine proved his information authentic, and (2) there was a need to act quickly because the seller in the house was expecting his money and the lives of others in the house would be endangered if it was not produced.

At commencement of the trial on January 12, 1981, however, the trial assistant advised the Trial Judge that the People’s prior affirmations were in error, that in fact certain items including bowls, mixing utensils and a scale had been seized from defendant’s basement, and moved to vacate the preclusion order and reopen the suppression hearing. Defendant’s attorney opposed on the grounds that the hearing Judge’s order was the law of the case, that probable cause was absent and that the People’s delay in disclosure should preclude admission of the evidence. The Trial Judge held himself bound by the prior determination of the hearing Judge that there was probable cause but not by the preclusion order. He ruled, therefore, that the People could introduce any physical evidence that had been found in the house. During trial, however, he modified that ruling to exclude the physical evidence but ruled that Strahm and Anderson could testify to the items observed in defendant’s house.

At the conclusion of the People’s case and again at the end of the entire case, defendant’s attorney moved for an order of dismissal on the ground that there was insufficient corroboration of the accomplice testimony. He also excepted to the charge as related to corroboration and requested an instruction the essence of which was that “Corroborative evidence may not depend for its weight and probative value upon the accomplice testimony.” The request was denied on the ground that the charge as given adequately stated the law.

On appeal to us, defendant argues that (1) the Trial Judge’s ruling permitting testimony concerning objects observed, the objects themselves having been suppressed, is an impermissible extension of People v Young (55 NY2d 419, cert den 459 US _, 103 S Ct 107), (2) the evidence corroborating the accomplice testimony was insufficient as a matter of law essentially because the tape recorded voice could not be identified as that of defendant without Strahm’s testimony, and (3) it was error to deny the requested addition to the corroboration charge. We disagree.

Were the entry of Strahm and Anderson into defendant’s house illegal, testimony from them concerning physical evidence observed or seized (People v Evans, 43 NY2d 160; People v Laverne, 14 NY2d 304, 310; People v O’Neill, 11 NY2d 148, 152), or incriminating actions observed and not attenuated (People v Abruzzi, 42 NY2d 813, affg on opn below 52 AD2d 499, cert den 434 US 921; see People v Young, 55 NY2d 419, cert den 459 US _, 103 S Ct 107, supra, People v Boodle, 47 NY2d 398, cert den 444 US 969), would be inadmissible. Here, however, Strahm was invited into the house and the hearing Judge has found Anderson’s entry not to have been in violation of the Fourth Amendment. His findings of probable cause and exigency, being based upon facts that may reasonably be found and inferences that may reasonably be drawn from the record, will not be disturbed by us (People v Stone, 57 NY2d 762; People v Harrison, 57 NY2d 470; People v Mealer, 57 NY2d 214).

The basis of the preclusion order was, therefore, not any Fourth Amendment violation, but the People’s affirmation that they possessed no suppressible evidence or testimony. Having failed to comply with CPL 240.20 in response to the original motion, the People were under a continuing duty to disclose material subject to discovery (CPL 240.60), and the Trial Judge was authorized by CPL 240.70 (subd 1) upon such belated disclosure to “order * * * discovery * * * grant a continuance, issue a protective order, prohibit the introduction of certain evidence or the calling of certain witnesses or take any other appropriate action.” Although the subdivision does not explicitly provide for modification by a Trial Judge of the prior order of a hearing Judge under circumstances such as here occurred, the necessary implication of section 240.70 is that, when additional disclosure is made pursuant to section 240.60, “other appropriate action” includes modification of an earlier preclusion order, even though made by another Judge of co-ordinate jurisdiction. Thus, the Trial Judge’s original ruling permitting introduction of the physical evidence was proper and need not have been modified to preclude introduction of the physical evidence but permit testimony concerning its observation. That being so, defendant was not harmed by and cannot complain of the ruling ultimately made.

With respect to the sufficiency of the corroborating evidence, it is, of course, true that the fact that Strahm had turned police informant before he placed the call to defendant does not eliminate the need for corroboration (People v Cona, 49 NY2d 26, 35) and that if the identification of defendant’s voice on the tape turned on Strahm’s testimony alone there would not be independent corroborative evidence. The People argue, however, that defendant’s identity as the second voice was established, independent of Strahm, because Anderson instructed Strahm to call “his man,” the tape established that the deal was to be consummated at the second party’s house at 11:30, the deal was consummated at approximately 11:30 at defendant’s house, and defendant was there.

CPL 60.22 (subd 1) provides that: “A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.” The purpose of that provision is, as we noted in People v Hudson (51 NY2d 233, 238-239; see, also, People v Daniels, 37 NY2d 624, 629-630), “to protect the defendant against the risk of a motivated fabrication, to insist on proof other than that alone which originates from a possibly unreliable or self-interested accomplice.” That does not, however, require independent proof of the commission of crime, for as we stated in People v Glasper (52 NY2d 970, 971): “Although corroborative evidence must be truly independent, and may not draw its probative value from the accomplice testimony (People v Hudson, 51 NY2d 233), it need not itself prove commission of the crime. Rather, it is sufficient if the corroborative evidence tends to connect the defendant to the crime so as to reasonably satisfy the jury that the accomplice is telling the truth (e.g., People v Cunningham, 48 NY2d 938, 940).”

Here, by combining the tape with other corroborative evidence, the People met their burden of connecting defendant to the crime. Independent evidence corroborated that Strahm was dealing with a second person as his source for cocaine; that cocaine was actually delivered to Anderson; that defendant played an active role at two crucial points in the drama, shaking hands with Strahm when the “taste” was delivered and admitting him to the house where the ultimate sale was consummated; that someone in defendant’s house was preventing entry to the police; and that paraphernalia related to the sale of cocaine was present in defendant’s basement. Although standing alone each of these matters could have neutral explanations, together they “so harmonized ‘with the accomplice’s narrative as to have a tendency to furnish the necessary connection between the defendant and the crime’ (People v Daniels, 37 NY2d 624, 629)” (People v Cunningham, 48 NY2d 938, 940, supra; People v Smith, 55 NY2d 945, 946; see People v Dordal, 55 NY2d 954). Thus, the evidence corroborating Strahm’s testimony was not insufficient.

Finally, although it would not have been error to charge in the language requested by defendant, the Trial Judge was not bound to use the specific language requested by defendant’s attorney, the more particularly so because the request was not made until after delivery of the charge despite the opportunity to do so at the presummation charge conference held by the Trial Judge. The charge as given adequately apprised the jury of the governing law (People v Lanza, 57 NY2d 807; People v Hudson, 51 NY2d 233, supra; People v Daniels, 37 NY2d 624, supra).

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

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Simons concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed.

      . Officer Anderson testified at the hearing that Strahm had told him that the defendant’s suppliers were in the house with guns and would harm the defendant’s family if anything went wrong.

      . All of the majority in People v Young (55 NY2d 419) recognized that observations of an incriminating nature, as here, were suppressible.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of a Grand Jury Investigation of Onondaga County.
    Argued May 3, 1983;
    decided June 7, 1983

      POINTS OF COUNSEL

      Richard A. Hennessy, Jr., District Attorney {John A. Orando and Michael P. Marmor of counsel), for appellant.
    I. The instant subpoena is proper in all respects. (People v Stern, 3 NY2d 658; People v Eckert, 2 NY2d 126; Matter of Grand Jury Proceedings [Doe], 56 NY2d 348; Matter of Coddington, 307 NY 181; Mayer v Albany Med. Center Hosp., 56 Misc 2d 239; Matter of Albert Lindley Lee Mem. Hosp., 115 F Supp 643, 209 F2d 122, cert den sub nom. Cincotta v United States, 347 US 960; People v Newman, 32 NY2d 379; People v Runion, 3 NY2d 637, 356 US 963; People v Decina, 2 NY2d 133.) II. The physician-patient privilege must give way to an overriding public interest. (Matter of Commissioner of Social Servs. of City of N. Y. v David R. S., 55 NY2d 588; People v Preston, 13 Misc 2d 802; Matter of Grand Jury Proceedings [Doe], 56 NY2d 348; Matter of People v Doe, 107 Misc 2d 605; People v Maynard, 80 Misc 2d 279; People ex rel. Lemon v Supreme Ct. of State of N. Y., 245 NY 24; People v Christiano, 53 Misc 2d 433.)

      Raymond R. D’Agostino and Alicia Swiatlowski for respondent.
    L The subpoena violates the patient/physician privilege and must be quashed. (Matter of Grand Jury Proceedings [Doe], 86 AD2d 672, 56 NY2d 348; Matter of Coddington, 307 NY 181; Matter of City Council of City of N. Y. v Goldwater, 284 NY 296; Matter of Investigation of

      Criminal Abortions in County of Kings [Magelaner], 286 App Div 270, 309 NY 1031; MacDonald v Clinger, 84 AD2d 482; Doe v Roe, 93 Misc 2d 201; Clark v Geraci, 29 Misc 2d 791; People v Eckert, 2 NY2d 126; People v Murphy, 101 NY 126; People v McAlpin, 50 Misc 2d 579.) II. Disclosure of names and addresses by itself would constitute a breach of the physician/patient privilege. (Matter of Albert Lindley Lee Mem. Hosp., 115 F Supp 643; Gourdine v Phelps Mem. Hosp., 40 AD2d 694; Matter of People v Doe, 107 Misc 2d 605; Mayer v Albany Med. Center Hosp., 56 Misc 2d 239; People v Decina, 2 NY2d 133; People v Newman, 32 NY2d 379.) III. The subpoena violates the patient’s rights to privacy. (Whalen v Roe, 429 US 589; United States v Westinghouse Elec. Corp., 638 F2d 570.) IV. The subpoena is overly broad. (Matter of Long Beach Grandell Nursing Home & Health Related Facility v Hynes, 93 Misc 2d 117.) V. Statutory exceptions to the physician/patient privilege are explicit and the burden is upon the Legislature and not this court to amend the law should the need arise. (Matter of Van Berkel v Power, 16 NY2d 37; Williams v Mayor, 289 US 36; Matter of Spillane v Katz, 25 NY2d 34; Matter of Grand Jury Investigation of Onondaga County, 90 AD2d 990.) VI. County Court did not have discretionary power to order disclosure. (Matter of Commissioner of Social Servs. of City of N. Y. v David R. S., 55 NY2d 588; People v Preston, 13 Misc 2d 802; People v Maynard, 80 Misc 2d 279; People v Christiano, 53 Misc 2d 433.)
   OPINION OF THE COURT

Meyer, J.

A subpoena, although limited to “[n]ames and addresses of those treated for stab wounds or other wounds caused by a knife from June 15, 1982 through June 17, 1982,” must be quashed because it may require the hospital to which it is addressed to divulge information protected by the physician-patient privilege (CPLR 4504, subd [a]). The order of the Appellate Division granting the motion of respondent hospital to quash the subpoena served by the District Attorney, as limited by the District Attorney’s letter, should, therefore, be affirmed.

On June 16,1982, a woman was found, stabbed to death, under circumstances which led the Onondaga County District Attorney to believe that she might have stabbed her assailant. On June 17, in an effort to identify the assailant, the District Attorney issued a Grand Jury subpoena commanding the hospital to produce “any and all medical records pertaining to treatment of any person with stab wounds or other wounds caused by a knife, from June 15, 1982 to the present time.” The hospital countered by moving to quash on the grounds that the subpoena violated the physician-patient privilege and that the constitutional right to privacy protected the information from disclosure. County Court denied the motion, holding the privilege not so absolute as to proscribe the exercise of discretion and that the public’s interest in investigating crime far outweighed its interest in fostering the free flow of information between patient and doctor, but stayed enforcement of its order pending appeal.

Subsequent to the court order, the District Attorney informed the hospital by letter dated July 28,1982 that the only information he would seek under the subpoena would be the “[n]ames and addresses of those treated for stab wounds or other wounds caused by a knife from June 15, 1982 through June 17, 1982”.

The Appellate Division reversed, granted the motion and quashed the subpoena, holding that a hospital which is not itself the subject of any investigation may properly assert the privilege for the benefit of its patients, including those who are suspected or accused of criminal activity. As for the claimed public interest exception, it found significant the fact that CPLR 4504 (subd [b]) enacted a specific exception for child abuse and section 265.25 of the Penal Law required reporting of any injury caused by discharge of a firearm but only of a knife wound likely to result in death and thus not of such a wound not likely te result in death.

The Appellate Division also held that, even as limited by the District Attorney’s letter of July 28, 1982, the subpoena violated the statutory proscription because to reveal the names and addresses of all persons treated for stab wounds concerned not only the fact of treatment but also the nature of the treatment.

Before this court, the District Attorney has abandoned the contention that the demand for “all medical records” of persons treated for stab wounds was proper. He now argues only that the demand for names and addresses alone does not violate the privilege, because names and addresses are not privileged and, alternatively, that the County Court had discretion to override the privilege in the public interest because a homicide was under investigation. We disagree.

The physician-patient privilege is statutory and is, therefore, to be construed in accordance with its purpose — “to encourage full disclosure by the patient so that he can secure appropriate treatment from the physician” (Matter of Grand Jury Proceedings [Doe], 56 NY2d 348, 352) — but is to be given “a broad and liberal construction to carry out its policy” (Matter of City Council of City of N. Y. v Goldwater, 284 NY 296, 300; People v Decina, 2 NY2d 133, 143). CPLR 4504 (subd [a]) proscribes disclosure by a hospital or doctor, among others, of information “acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” It follows from that language that facts which are “plain to the observation of anyone without expert or professional knowledge” are not within the privilege (Klein v Prudential Ins. Co. of Amer., 221 NY 449, 453; Patten v United Life & Acc. Ins. Assn., 133 NY 450, 453; Edington v Aetna Life Ins. Co., 77 NY 564, 570). Thus, the photographs of all patients meeting a particular description (People v Newman, 32 NY2d 379, 384, cert den 414 US 1163) or the names and addresses of a particular doctor’s patients (Matter of Albert Lindley Lee Mem. Hosp., 115 F Supp 643, affd 209 F2d 122, cert den sub nom. Cincotta v United States, 347 US. 960) may be subpoenaed without violating the statute (see People v Decina, 2 NY2d 133, 143, supra).

Although the privilege belongs to the patient and may not be asserted by the physician, hospital or anyone else to protect himself with respect to a crime committed against the patient (Matter of Grand Jury Proceedings [Doe], 56 NY2d 348, supra; People v Lay, 254 App Div 372, affd 279 NY 737), it may be asserted by the hospital or physician for the protection of a patient who has not waived his or her privilege, even though the patient is suspected of or charged with a crime (People v Eckert, 2 NY2d 126; People v Murphy, 101 NY 126; Matter of Investigation of Criminal Abortions in County of Kings [Magelaner], 286 App Div 270, mot for lv to app den 309 NY 1031). Respondent hospital properly asserted the privilege, therefore, and it not being possible to comply with a demand for names and addresses of all persons treated for a knife wound without disclosing privileged information concerning diagnosis and treatment, the subpoena, even as limited, was properly quashed.

The District Attorney’s further contention that the statutory privilege must yield to the overriding public interest in the investigation of a homicide does not withstand analysis. In both People v Decina (2 NY2d 133, supra) and People v Murphy (101 NY 126, supra) we upheld the privilege as to information gained by a physician while treating a patient defendant accused of homicide. Nor can the District Attorney point to any such explicit declaration of legislative intention to permit the privilege to be overridden in a homicide case as was demonstrated in the Federal statute (US Code, tit 21, § 1175, subd [b], par [2], cl [C]) considered in Matter of Commissioner of Social Servs. of City of N. Y. v David R. S. (55 NY2d 588). To the contrary, specific exceptions to the physician-patient privilege have been enacted by the Legislature (CPLR 4504, subd [b] [respecting disclosure of dental identification data and information concerning a victim of crime under age 16]; subd [c] [as to the mental or physical condition of a deceased patient]; Family Ct Act, § 1046, subd [a], par [vii] [no privilege in proceedings for child abuse or neglect]; Public Health Law, § 2101, subd 1 [requiring disclosure of communicable disease]; Public Health Law, § 3373 [abrogating the privilege as to controlled substances]; Social Services Law, § 384-b, subd 3, par [h] [providing that the privilege affords no ground for exclusion of evidence in proceedings for guardianship and custody of destitute or dependent children]; Penal Law, § 265.25 [making it a misdemeanor for a doctor or hospital to fail to report a wound “caused by discharge of a gun or firearm” or “a wound which is likely to or may result in death and is actually or apparently inflicted by a knife”]).

Those exceptions to the privilege make clear the legislative concept that exceptions to the. statutorily enacted physician-patient privilege are for the Legislature to declare. And as the Appellate Division noted, the fact that the legislatively declared exception for knife wounds is limited to those likely to result in death whereas any wound caused by discharge of a firearm must, under the Penal Law, be reported compels the conclusion that less serious knife wounds are not within the mandate of section 265.25 of the Penal Law and that, therefore, information concerning treatment of such wounds is not excluded from the privilege provided by CPLR 4504.

In view of the conclusion reached it is unnecessary for us to consider the constitutional question. The order of the Appellate Division should, therefore, be affirmed.

Chief Judge Cooke and Judges Jasen, Jones and Wachtler concur; Judge Simons taking no part.

Order affirmed, without costs.

       The subdivision in full reads as follows: “Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, or dentistry shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. The relationship of a physician and patient shall exist between a medical corporation, as defined in article forty-four of the public health law, a professional service corporation organized under article fifteen of the business corporation law to practice medicine, and the patients to whom they respectively render professional medical services.”


author: Simons, J.

text:
    In the Matter of the Commissioner of Social Services, as Assignee of Patricia A., Appellant, v Philip De G., Respondent.
    Argued May 3, 1983;
    decided June 9, 1983

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath and Leonard Koerner of counsel), for appellant.
    The finding of paternity was proven by clear and convincing evidence. (Matter of Lopez v Sanchez, 34 NY2d 662; Matter of Barbara A. G. v Leotis C. T., 53 AD2d 614; Commissioner of Public Welfare of City of N. Y. [McNamee] v Ryan, 238 App Div 607; Matter of Commissioner of Welfare of City of N. Y. v Wendtland, 25 AD2d 640; Matter of Karen K. v Christopher D., 89 AD2d 955; Matter of Linda WW v William XX, 69 AD2d 918; Matter of Morris v Terry K., 60 AD2d 728, 70 AD2d 1031; Matter of Renee K. v Robert P., 50 AD2d 604; Matter of Commissioner of Social Servs. of Erie County v Simons, 87 AD2d 993.)

      Phil Brown and Saul Edelstein, P. C., for respondent.
    I. Petitioner’s failure to prove acts of sexual intercourse with respondent within the period of possible conception, combined with a failure to prove when an admittedly sexual relationship with another man terminated, rendered proof of paternity less than clear and convincing to the point of entire satisfaction. (Matter of Lopez v Sanchez, 34 NY2d 662; Commissioner of Public Welfare of City of N. Y.
      [McNamee] v Ryan, 238 App Div 607; Commissioner of Public Welfare of City of N. Y. [Carr] v Kotel, 256 App Div 352; Matter of Renee G. v William H., 46 AD2d 823, 39 NY2d 812; Matter of Morris v Canfield, 19 AD2d 942; Taylor v Horton, 49 AD2d 1030; Matter of Rebmann v Muldoon, 23 AD2d 163; Gail M. v William P., 57 AD2d 859; Matter of Commissioner of Social Servs. of N. Y. v James H., 65 AD2d 772; Matter of Sharon “C” v David “D”, 33 AD2d 603.) II. It would be inappropriate in this case, in light of all that has transpired heretofore, for the case to be remanded for an HLA blood tissue test of the parties.
   OPINION OF THE COURT

Simons, J.

Petitioner appeals from an order of the Appellate Division which reversed and vacated orders of the Family Court adjudicating respondent father of a child born out of wedlock and directing him to pay weekly support. The Appellate Division found the evidence of paternity insufficient as a matter of law. Inasmuch as it failed to give proper consideration to admissible and probative evidence, there should be a reversal. Specifically, Family Court properly could consider that entries in the hospital record of the mother’s confinement at delivery corroborated her testimony that the child was born prematurely and it also could consider, in assessing the strength of petitioner’s evidence, that respondent did not testify and draw appropriate inferences because of his failure to do so.

There was evidence in the record which established, if accepted, that Patricia A. and Philip De G. dated regularly, that they engaged in sexual intercourse in 1976 and that she became pregnant by him; that at his request she aborted that pregnancy in November, 1976 and thereafter stopped seeing him. She started dating another man, with whom she had sexual relations, in December, 1976 or January, 1977, but in March she stopped seeing him and resumed dating respondent in mid-April, 1977. She began having sexual relations with him, and no other, as soon as they started dating in April and continued to do so until March, 1978, after the baby was born. Patricia first realized she was pregnant in May or June, 1977 and the baby was born, prematurely she testified, January 9, 1978. She testified that the child weighed 4 pounds 13 ounces at birth. Patricia also testified that respondent visited her at the time of the delivery and took her home from the hospital, that he gave her substantial gifts for the child, and that he called the child “his baby”.

The mother was the only witness to testify and thus respondent contends that there was no expert evidence to corroborate that the baby was premature and conceived during the time when sexual intercourse allegedly occurred (see Matter of Morris v Terry K., 60 AD2d 728; Matter of Kathy R. v Steven S., 47 AD2d 680; Baronowski v Luciano, 23 AD2d 815). During the hearing, however, petitioner submitted the hospital record of the confinement at delivery. It was not certified (see CPLR 4518, subd [c]) but respondent’s only objection was that it was not evidence sufficient to corroborate the premature birth. The court received the exhibit as a record kept in the regular course of business but did not rule on the sufficiency objection. On the diagnosis sheet of the attending doctor appears the statement that the child was a “pre-term living female” “born at 35 wks. gestation.” On the “Data Sheet-Newborn” signed by the delivery and nursery room nurses appears the statement that the child was premature. Similar statements appear in the progress notes but neither the authors of the progress notes nor their qualifications are identified. The diagnosis of the doctor and the nurses’ entries were prima facie evidence of the facts stated (CPLR 4518, subd [c]; see, also, Williams v Alexander, 309 NY 283, 287; People v Kohlmeyer, 284 NY 366, 369; Richardson, Evidence [10th ed], § 301). In the absence of contradictory evidence, these hospital entries were sufficient to-permit but not require the trier of fact to find in accordance with the record thus corroborating by expert evidence the mother’s testimony of prematurity (see George Foltis, Inc. v City of New York, 287 NY 108, 122, 128; St. Andrassy v Mooney, 262 NY 368; Richardson, Evidence [10th ed], § 96; 5 Weinstein-Korn-Miller, NY Civ Prac, par 4518.24). The period of gestation indicated by this evidence placed conception in early May, a time when the mother testified that she and respondent had engaged in sexual intercourse.

The other point requiring our consideration is the effect to be given respondent’s failure to testify. The statute provides that he need not do so and the issue is whether any inference may be drawn against him if he does not.

In the past, the Second Department has not permitted the inference (Matter of Renee K. v Robert P., 50 AD2d 604), but other Appellate Divisions have (see Matter of Commissioner of Social Servs. of Erie County v Simons, 87 AD2d 993; Matter of Arlene W. v Robert D., 36 AD2d 455, 459 [4th Dept]; Matter of O’Connor v Sanford, 72 AD2d 884 [3d Dept]). Filiation proceedings are civil proceedings (see Family Ct Act, § 511; Matter of Clausi, 296 NY 354; Matter of Harris v Doley, 22 AD2d 769; cf. Commissioner of Public Welfare of City of N. Y. [McNamee] v Ryan, 238 App Div 607, 608), and it is now established that in civil proceedings an inference may be drawn against the witness because of his failure to testify or because he exercises his privilege to prevent another from testifying, whether the privilege is constitutional (see Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 42; cf. Baxter v Palmigrano, 425 US 308), or statutory (see People v Hovey, 92 NY 554 [marital privilege]; Sabowska v Coney Is. & Brooklyn R. R. Co., 174 App Div 913 [physician-patient]; Deutschmann v Third Ave. R. R. Co., 87 App Div 503, 513-515 [physician-patient]; see, generally, NY PJI 1:76 and Comment; Fisch, NY Evidence [2d ed], § 1127; Propriety and Prejudicial Effect of Comment or Instruction by Court with Respect to Party’s Refusal to Permit Introduction of Privileged Testimony, Ann., 34 ALR3d 775; cf. Proposed Code of Evidence for State of New York, § 503). The failure of respondent to testify does not permit the trier of the fact to speculate about what his testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against him that the opposing evidence in the record permits (see Noce v Kaufman, 2 NY2d 347, 353).

Petitioner’s burden is to establish paternity by “clear and convincing” evidence, evidence which is “entirely satisfactory” and creates a genuine belief that respondent is the father of the child (Matter of Lopez v Sanchez, 34 NY2d 662; Matter of Piccola v Hibbard, 51 AD2d 674, affd 40 NY2d 1035; Commissioner of Public Welfare of City of N. Y. [McNamee] v Ryan, 238 App Div 607, 608, supra). Inasmuch as there was evidence in the record which if believed would meet this standard and warrant a finding of paternity, the order must be reversed.

Accordingly, the order of the Appellate Division should be reversed and the matter remitted to that court for its determination of the facts.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur.

Order reversed, with costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

       (Family Ct Act, § 531: “The trial shall be by the court without a jury. The mother or the alleged father shall be competent to testify but the respondent shall not be compelled to testify.”)


author: Chief Judge Cooke.

text:
    In the Matter of Robert M. Morgenthau, as District Attorney of New York County, Respondent, v William M. Erlbaum, a Judge of the Criminal Court of the City of New York, New York County, et al., Appellants.
    Argued April 27, 1983;
    decided June 7, 1983

      POINTS OF COUNSEL

      Richard Emery for William M. Erlbaum, appellant, and Seymour S. Detsky for Carol Link and another, appellants.
    I. A declaratory judgment will not lie to attack collaterally the interlocutory order rendered in this pending criminal proceeding. (Matter of Gold v Gartenstein, 54 NY2d 627; Matter of State of New York v King, 36NY2d 59; People v Gersewitz, 294 NY 163, 326 US 687; People v Zerillo, 200 NY 443; Vailes v County Ct. of County of Nassau, 57 AD2d 589; Skelly Oil Co. v Phillips Co., 339 US 667; United Public Workers v Mitchell, 330 US 75; Press v County of Monroe, 50 NY2d 695; Will v United States, 389 US 90; Ex Parte Fahey, 332 US 258.) II. CPL 340.40 (subd 2) deprives persons charged with prostitution of trial by jury in violation of the Sixth Amendment to the United States Constitution. (Callan v Wilson, 127 US 540; Natal v Louisiana, 139 US 621; Schick v United States, 195 US 65; District of Columbia v Colts, 282 US 63; District of Columbia v Clawans, 300 US 617; Cheff v Schnackenberg, 384 US 373; Bloom v Illinois, 391 US 194; Dyke v Taylor Implement Co., 391 US 216.)

      Robert M. Morgenthau, District Attorney (Robert M. Pitler and Amyjane Rettew of counsel), for respondent pro se.

    I. The courts below properly concluded that a declaratory judgment was the appropriate remedy for resolving this controversy about the constitutionality of a legislative enactment. (Matter of Gold v Gartenstein, 54 NY2d 627; Matter of Hogan v Rosenberg, 24 NY2d 207, revd on other grounds sub nom. Baldwin v New York, 399 US 66; People ex rel. Lemon v Supreme Ct. of State of N. Y., 245 NY 24; Matter of State of New York v King, 36 NY2d 59; Matter of Jaffe v Scheinman, 47 NY2d 188; James v Alderton Dock Yards, 256 NY 298; Duncan v Louisiana, 391 US 145; Boryszewski v Brydges, 37 NY2d 361; Dun & Bradstreet, Inc. v City of New York, 276 NY 198; Matter of Merced v Fisher, 38 NY2d 557.) II. The Sixth and Fourteenth Amendments do not require trial by jury for persons charged with prostitution. (Callan v Wilson, 127 US 540; Duncan v Louisiana, 391 US 145; District of Columbia v Clawans, 300 US 617; Baldwin v New York, 399 US 66; Codispoti v Pennsylvania, 418 US 506; Argersinger v Hamlin, 407 US 25; Matter of Hogan v Rosenberg, 24 NY2d 207; People v Dargan, 27 NY2d 100, 400 US 920; Frank v United States, 395 US 147; People v Pagnotta, 25 NY2d 333.)
   OPINION OF THE COURT

Chief Judge Cooke.

On rare occasions, a criminal court will make an interlocutory ruling in favor of a defendant that will both affect fundamental rights and have implications reaching far beyond the immediate case in which the order is made. In such situations and when the controversy is purely a legal one, an independent action for declaratory relief against the ruling Judge may be allowed where the circumstances warrant.

Respondent William M. Erlbaum is a Judge of the Criminal Court of the City of New York, New York County. In 1981, two women accused of prostitution, which carries a three-month maximum sentence, appeared before Judge Erlbaum and moved for trial by jury. The defendants argued that CPL 340.40 (subd 2), directing that crimes punishable by not more than six months’ incarceration shall be heard before a Judge, was unconstitutional because it deprived them of their Sixth Amendment right to jury trial and denied them equal protection of the law. The court granted their motion, reasoning that, notwithstanding its relatively minor sentence, prostitution is a “serious” crime with a concomitant -right to trial by jury (see People v Link, 107 Misc 2d 973). The defendants’ equal protection argument was not reached (see id., at p 980).

Petitioner, the District Attorney of New York County, commenced this proceeding to prevent respondent’s order from taking effect. Initially, the matter was instituted under CPLR article 78 to obtain a writ of prohibition. Petitioner moved to convert the proceeding into an action for declaratory judgment after this court stated that prohibition is not available to attack a criminal court’s ruling that a statute denying a trial by jury is unconstitutional (see Matter of Gold v Gartenstein, 54 NY2d 627). Special Term granted the motion to convert and declared that CPL 340.40 (subd 2) is constitutional. The Appellate Division, First Department, affirmed, but without opinion.

Two issues are presented on this appeal. The first is the procedural propriety of an action seeking declaratory relief that, in effect, collaterally attacks a criminal court’s ruling. The other matter, assuming that the action is proper, is whether CPL 340.40 (subd 2) violates the Sixth Amendment.

In determining whether an action for declaratory judgment lies in the present circumstances, it is helpful to distinguish the action from the extraordinary remedy of prohibition, and to examine the policies underlying the decisions limiting the issuance of writs of prohibition.

A writ of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity “ ‘without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction’ ” (Matter of Dondi v Jones, 40 NY2d 8, 13, quoting Matter of State of New York v King, 36 NY2d 59, 62; see, also, La Rocca v Lane, 37 NY2d 575, 578-579). It may not issue against legislative, executive, or ministerial action (see Matter of Dondi v Jones, supra). The decision to issue the writ is left to the court’s sound discretion, which is to be exercised after consideration of various factors (see id.; La Rocca v Lane, supra). In light of the reluctance to interfere with the normal, orderly administration of justice, an important factor is the adequacy of other legal remedies to correct the asserted error (see Matter of Dondi v Jones, supra; La Rocca v Lane, supra); if there is an adequate “ordinary” remedy, then there is no need to invoke an extraordinary remedy.

With reference to declaratory relief, it should first be noted that it is not an extraordinary remedy (see 1 Anderson, Declaratory Judgments [2d ed], § 197, p 408; Borchard, Declaratory Judgments [2d ed], pp 360-361; cf. Borchard, Declaratory Judgments, 1939, 9 Bklyn L Rev 1, 4,14; Breese, Atrocities of Declaratory Judgments Law, 31 Minn L Rev 575, 579, 595; compare CPLR 3001 with CPLR 7801). Instead, a declaratory judgment “is a remedy sui generis and escapes both the substantive objections and procedural limitations of special writs and extraordinary remedies” (Borchard, Declaratory Judgments, 1939, 9 Bklyn L Rev, at p 14). Unlike prohibition, its use is not limited to reviewing public acts of a judicial nature. Rather, it has broad application, being invoked to declare rights derived from both private and public law (see id., at p 9, & nn 21-29), and from both civil (see, e.g., Quaker Oats Co. v City of New York, 295 NY 527) and criminal statutes (see, e.g., Fenster v Leary, 20 NY2d 309). Critically, declaratory judgment does not entail coercive relief, but only provides a declaration of rights between parties that, it is hoped, will forestall later litigation (see New York Public Interest Group v Carey, 42 NY2d 527, 530-531; Borchard, Declaratory Judgments, 1939, 9 Bklyn L Rev, at p 4; Note, Developments In the Law — Declaratory Judgments — 1941-1949, 62 Harv L Rev 787, 787-790; Note, Effect of Availability of Coercive Relief Upon the Declaratory Judgment, 8 Bklyn L Rev 321). In other words, the declaration in the judgment itself cannot be executed upon so as to compel a party to perform an act or to surrender property.

As with prohibition, granting declaratory judgment is left to the court’s discretion (CPLR 3001). In keeping with the remedy’s nonextraordinary nature, however, the court has a broader power to grant declaratory judgment than it does with prohibition. It may decline to hear the matter if there are other adequate remedies available, and it must dismiss the action if there is already pending between the parties another action in which all the issues can be determined (see Woollard v Schaffer Stores Co., 272 NY 304, 311). The mere existence of other adequate remedies, however, does not require dismissal: “We have never gone so far as to hold that, when there exists a genuine controversy requiring a judicial determination, the Supreme Court is bound, solely for the reason that another remedy is available, to refuse to exercise the power conferred by [the predecessor statutes to CPLR 3001]” (id., at pp 311-312).

In summary, declaratory relief is available in a wider range of circumstances than is prohibition. The jurisdictional impediments to obtaining declaratory judgment are virtually coextensive with those to any normal lawsuit, while a writ of prohibition, by definition, may be granted only in restricted situations. Insofar as strictly jurisdictional factors are concerned, then, there is nothing to bar a District Attorney from seeking an interpretation of a penal statute.

Policy considerations, however, may militate against entertaining an action for declaratory judgment that is instituted to challenge a criminal court’s ruling. On this basis, both declaratory relief and prohibition have been limited as a means for attacking penal statutes or court rulings. On reviewing the reasons underlying those decisions, it is concluded that the action here is proper.

In the past, prohibition was deemed a proper vehicle for challenging an interlocutory order of a criminal court. In People ex rel. Lemon v Supreme Ct. of State of N. Y. (245 NY 24), the court approved the issuance of a writ to prohibit a trial court from enforcing an order requiring the prosecutor to divulge information to a criminal defendant. Chief Judge Cardozo, writing for the court, noted that prohibition was appropriate because the order could not be appealed, that there was no other remedy available, and that “[t]he course of the trial might be changed with the possible result that justice would miscarry, for a penalty of disobedience was to be the exclusion of the evidence” (id., at p 35). This position was tacitly reaffirmed in Matter of Hogan v Rosenberg (24 NY2d 207, revd on other grounds sub nom. Baldwin v New York, 399 US 66). Neither the parties nor the court there questioned the propriety of seeking a writ to prohibit a court from granting a jury trial in direct contravention to a statute.

This position, of course, has been abandoned (see Matter of Gold v Gartenstein, 54 NY2d 627, supra). A court cannot be said to be acting without power merely because it issues an arguably erroneous ruling in a case that is otherwise properly before it (see Matter of State of New York v King, 36 NY2d 59, supra). Of primary concern in King was the potential for “protracted and multifarious appeals and collateral proceedings” that would thereby prevent the speedy disposition of criminal cases (id., at p 63). Prohibition, therefore, may be used for collateral review of an error of law “only where the very jurisdiction and power of the court are in issue” (Matter of Steingut v Gold, 42 NY2d 311, 315).

Declaratory relief, on the other hand, generally seeks a determination of rights before a “wrong” occurs, rather than collateral review of a court’s ruling. In that context, it has been used to test penal statutes. Two tacks have been taken in seeking declaratory relief with regard to criminal laws. First, some have sought a determination whether particular conduct violates some penal law. The other has been to test the constitutional validity of a statute. This court generally has held that the latter is proper; the former is more circumscribed (Matter of Storar, 52 NY2d 363, 382).

The lead case is Reed v Littleton (275 NY 150), in which the owner of a greyhound racing track attempted to obtain a judgment declaring that a complicated “option” plan maintained by him was not a gambling scheme prohibited by the Penal Law. He instituted the action after being acquitted once of illegal gambling, but after the prosecutor had given notice of his intent to file further charges. This court held that declaratory relief was not available because the validity of the statute was not at issue and there was no assurance that the circumstances or the prosecutor’s proof would not vary in the future (see id., at pp 153-154). The court was loath to impede or interfere with the executive branch’s administration of the criminal law, as would occur if the courts decided in civil proceedings whether certain behavior was criminal, but noted that this interference would not occur in declaring the constitutional validity of a statute (see id., at p 156). Finally, the court commented that allowing actions for declaratory judgment in such circumstances would only delay criminal justice, not expedite it (see id., at p 157).

Although a declaratory judgment often revolves around a particular set of facts, “[t]he remedy is available in cases ‘where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved.’ (Dun & Bradstreet, Inc. v. City of New York * * * [276 NY 198, 206]; Bank of Yorktown v. Boland, 280 N.Y. 673). The remedy, however, is not available to restrain the enforcement of a criminal prosecution where the facts are in dispute, or open to different interpretations” (New York Foreign Trade Zone Operators v State Liq. Auth., 285 NY 272, 276). In New York Operators, the plaintiff imported liquor into a trade zone, where it diluted the spirits, repackaged them, and then shipped them to other parts of the United States or to foreign countries. The plaintiff had not obtained a distiller’s license and potentially faced criminal charges as a result. This court approved the use of declaratory relief to determine whether a license was required as “[t]he nature and purpose of the acts here sought to be tested are not disputed” (id., at p 278).

One example of an appropriate use of a declaratory judgment action to challenge a criminal statute further demonstrates the distinction between that remedy and prohibition. In Fenster v Leary (20 NY2d 309, supra), the plaintiff had been thrice arrested and acquitted for vagrancy. After the third arrest, he sought a writ of prohibition on the ground that the penal statute was unconstitutional. The lower courts denied prohibition, which was affirmed on the sole ground that the remedy was discretionary (see Matter of Fenster v Criminal Ct. of City of N. Y., 17 NY2d 641). Having been acquitted for the third time, Fenster sought a declaration that the vagrancy statute was unconstitutional on its face. This court held the procedure to be proper under the circumstances as the plaintiff was challenging the statute’s validity, and not its application to disputed facts (see Fenster v Leary, supra, at p 312).

The task, then, is to determine whether a declaratory judgment may be sought to review an interlocutory criminal court ruling without running afoul of the policies underlying the limitations on obtaining a writ of prohibition in the same circumstances. The primary concerns are to avoid litigating factual issues in proceedings collateral to the criminal trial while also shunning collateral appeals that will delay the criminal trial.

With this in mind, it can be stated that a declaratory judgment attacking a criminal court’s interlocutory ruling may be granted when the controversy is over the validity of a statute, the determination of which does not require resolving any factual disputes, and there is no immediate attempt to prevent the criminal court from proceeding on the course which it has charted by its ruling. Furthermore, the criminal court’s ruling must have an obvious effect extending far beyond the matter pending before it so that it is likely that the issue will arise again with the same result in other cases. Put another way, the situation must be one where it can be assumed that the question will recur in other prosecutions and the criminal court will decide it in the same way. Inasmuch as a defendant always has available a right to appeal, only an application for declaratory relief by the People should-be entertained (see Kelly’s Rental v City of New York, 44 NY2d 700). The recurring nature of the issue, therefore, should pose a risk of significantly obstructing the task of administering criminal justice by imposing an undue burden on prosecutors and the courts. Although this court declines today to expressly limit when such an action may be brought, it is noted that this concern over obstructing the speedy resolution of cases suggests that it is most appropriate when the challenge is to a ruling on how a trial is to be conducted. This “procedural” type of question is also the sort that is likely to recur and to be decided in the same manner regardless of the facts underlying the criminal charges. On the other hand, mere evidentiary rulings would not be proper subjects. Finally, the appropriate parties do not include the individual defendant in the case where the challenged ruling was made; as to him or her, there is another pending proceeding and the controversy has been decided (cf. Woollard v Schaffer Stores Co., 272 NY 304, 311, supra). As a corollary, the action for declaratory judgment cannot seek any injunction against the individual defendant or the criminal court.

Applying these factors to the instant proceeding, it is apparent that declaratory relief is proper. Judge Erlbaum ruled that CPL 340.40 (subd 2) was unconstitutional as applied to prostitution defendants in New York City. The nature of the ruling clearly makes it one that will be repeated unchanged in future prosecutions. Its potential impact on the criminal justice system is manifest from Judge Erlbaum’s own decision. In 1979, a total of only 15 out of 14,247 prostitution cases went to trial in the Manhattan Criminal Court (see People v Link, 107 Misc 2d 973, 980, n 55, supra). It can be expected that, if jury trials were available, far more prostitution defendants would demand trials, which would overwhelm the courts and prosecutors by consuming large amounts of time for selecting juries and would cause unmanageable delays.

In approving the use of declaratory judgment in the present situation, it is incumbent upon this court to caution that this doctrine is to be used carefully and wisely. The extent to which this relief may be invoked remains to be developed.

Having concluded that declaratory relief was a proper remedy under the circumstances here, the merits of the decision below must be addressed. As noted, Judge Erlbaum concluded that prostitution is a “serious” crime and thereby comes within the scope of the Sixth Amendment’s guarantee of a trial by jury. In so holding, he acknowledged the relatively minimal sentence, but reasoned that the length of incarceration was only one of several factors that may be considered.

Respondents devote an extensive portion of their argument to tracing the history of prostitution laws; the legal, moral, and psychological implications of prostitution; and the importance private citizens and public officials place on eradicating prostitution. The effect of respondents’ argument, however, would be to allow each Judge to make a subjective decision on the seriousness of prostitution as an offense requiring a jury trial.

The analysis adopted by respondents stumbles at its threshold. Although earlier cases may have considered various factors of a crime (see, e.g., District of Columbia v Colts, 282 US 63; Schick v United States, 195 US 65; Natal v Louisiana, 139 US 621; Callan v Wilson, 127 US 540), recent Supreme Court decisions have emphasized the length of sentence to the exclusion of virtually everything else. The penalty is deemed of major relevance, a gauge of the locality’s social and ethical judgments on the heinousness of the offense (see Duncan v Louisiana, 391 US 145, 159-160). “In ordinary criminal prosecutions, the severity of the penalty authorized, not the penalty actually imposed, is the relevant criterion. In such cases, the Legislature has included within the definition of the crime itself a judgment about the seriousness of the offense” (Frank v United States, 395 US 147, 149). In Duncan, it was suggested that all offenses permitting imprisonment for more than six months would be serious crimes requiring jury trial. This objective criterion (see Frank v United States, supra, at p 148) has been elevated into a rule: “[0]ur decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes” (Codispoti v Pennsylvania, 418 US 506, 512).

Under this standard, it must be concluded that, as applied to prostitution charges, CPL 340.40 (subd 2) does not violate the Sixth Amendment. Prostitution is a class B misdemeanor (Penal Law, § 230.00), which is punishable by a maximum imprisonment of three months. Consequently, prostitution is a “petty” offense within the meaning of the Sixth Amendment and, hence, there is no right to a jury trial.

It is worth commenting on the reasons why a subjective standard is not employed. The overriding problem would be the lack of predictability and consistency in determining when a jury trial would be granted. Evaluation of an offense’s “seriousness” could vary from county to county, town to town, or even court to court. As a result, persons charged with identical offenses would find that their right to a jury depended only on the Judge before whom they happened to appear, not on the offense charged.

A second concern is that, in establishing sentences, the Legislature must be presumed to have weighed public opinion and history, and to have been aware of the civil implications of conviction. Indeed, this presumption implicitly underlies the Supreme Court’s emphasis on sentence length as the indicator of a crime’s seriousness. To allow a Judge to weigh these same criteria and reach a different conclusion as to a crime’s seriousness would be to permit an improper usurpation of the legislative function.

As discussed, it is an abuse of discretion for a court to entertain an action for declaratory judgment when there is pending between the parties an action that will fully dispose of the controversy. This error is compounded when the controversy has already been decided. Thus, it was improper for Supreme Court to have heard the action as against respondents Link and Meltsner, the defendants in the criminal action.

Accordingly, the order of the Appellate Division should be modified by striking the declaration that respondents Link and Meltsner are not entitled to a jury trial on the charges of prostitution pending against them in New York City Criminal Court actions bearing Docket Nos. N968606 and N968607 and by dismissing the petition as to respondents Link and Meltsner, and, as so modified, affirmed, without costs.

Judges Jasen, Jones, Wachtler, Meyer and Simons concur.

Order modified in accordance with the opinion herein and, as so modified, affirmed, without costs.

      . The parties do not present the equal-protection issue and, therefore, this court does not express any opinion on its merits.

      . The effect of other adequate remedies on the availability of declaratory relief has undergone various convolutions. Careful reading of those cases that have mentioned the availability of other remedies reveals that the actual concern was the standard for reviewing the exercise of discretion in dismissing an action (see, e.g., Gaynor v Rockefeller, 15 NY2d 120, 132; Rockland, Light & Power Co. v City of New York, 289 NY 45, 50-51). It is worth noting at this juncture that, in Gaynor and Rockland Light, descriptions of declaratory judgment as an “extraordinary remedy” are misnomers.

      . This court states no view on the propriety of the District Attorney’s returning to the criminal court and seeking reargument on the basis of the declaratory judgment.


author: Jasen, J. Meyer, J.

text:
    The People of the State of New York, Respondent, v Lemuel Smith, Appellant.
    Argued May 2, 1983;
    decided June 7, 1983

      POINTS OF COUNSEL

      Douglas P. Rutnik, Public Defender, for appellant.
    I. The court below committed reversible error by failing to suppress and exclude certain inculpatory statements which were made by defendant-appellant. Due to the ineffective assistance of his counsel defendant-appellant made an uninformed waiver of his right against self incrimination.
      (People v Settles, 46 NY2d 154; People v Donovan, 13 NY2d 148; People v Rogers, 48 NY2d 167; Miranda v Arizona, 384 US 436; Escobedo v Illinois, 378 US 478; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Wise, 64 AD2d 272; People v La Bree, 34 NY2d 257; People v Bennett, 29 NY2d 462.) II. The trial court’s erroneous Sandoval ruling deprived defendant-appellant of a fair trial since it effectively prevented him from testifying on his own behalf. (People v Mayrant, 43 NY2d 236; People v Dickman, 42 NY2d 294; People v Wright, 41 NY2d 172; People v Duffy, 36 NY2d 258, 423 US 861; People v Schwartzman, 24 NY2d 241; People v Russell, 266 NY 147; People v Zackowitz, 254 NY 192; People v Molineux, 168 NY 264; People v Johnson, 31 AD2d 842; People v Goldstein, 295 NY 61.) III. The trial court committed reversible error by failing to exclude certain unqualified opinion testimony. (People v Lewis, 103 Misc 2d 881; Meiselman v Crown Hgts. Hosp., 285 NY 389.)

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
    I. Defendant’s oral admissions were freely and voluntarily made as found by Judge Clyne and affirmed by the court below. (People v Avant, 33 NY2d 265; McMann v Richardson, 397 US 759; People v Aiken, 45 NY2d 394.) II. Judge Clyne’s Sandoval ruling was within his discretion and on the facts herein was proper. (People v Sandoval, 34 NY2d 371.) III. Defendant’s conviction was beyond a reasonable doubt and Dr. Davies, a pathologist, was qualified to give an opinion that the victim’s wounds were not caused by “maniacal” actions.
   OPINION OF THE COURT

Jasen, J.

Defendant, convicted of two murders and sentenced to consecutive terms of 25 years to life for each murder, appeals. He asserts that on the jury trial he was deprived of the effective assistance of counsel and that a stipulation designed to keep secret a transcript revealing defendant’s participation in other crimes was breached.

On November 24, 1976, at approximately 3:00 p.m., Robert Hedderman and Margaret Byron were murdered while working at the Hedderman Religious Shop located at 50 Columbia Street in Albany. The murderer slit both victims’ throats after stabbing them several times in the chest.

During the course of the intensive investigation which followed these murders, the defendant was questioned and released. Upon further investigation, however, evidence came to light implicating defendant. Mr. William Weber told the police that he saxy a “wild-eyed” black male approximately six feet tall in Hedderman’s store on November 24, 1976, standing near the body of Margaret Byron. Later, after being shown a lineup photograph, Mr. Weber identified defendant as that man. Maureen Toomey informed the police that she observed a black man leaving the Hedderman Religious Shop at approximately the time of the slayings. In September, 1977, she was taken to police headquarters where she was shown a lineup photograph containing pictures of six men and asked whether she recognized the man she saw leaving the Hedderman store that day. She pointed to defendant’s photo. Also in September, 1977, Lieutenant Murray of the Albany Police Department, while conducting an authorized search of a building where defendant had been employed, discovered one of defendant’s sweaters in a closet. A hair found on the sweater was sent to the FBI laboratory in Washington for testing. The FBI report indicated that the hair found on defendant’s clothing was that of the deceased, Margaret Byron.

Meanwhile, defendant had been indicted by a Schenectady County Grand Jury for the kidnapping and attempted robbery of Marlene Maggio. Defendant had been arrested several hours after the abduction while still holding the victim. In September, 1977, he retained counsel to represent him on the Schenectady County charges.

Thereupon, his counsel met with the District Attorneys of Schenectady, Albany and Saratoga Counties in an attempt to negotiate a plea bargain concerning crimes defendant had allegedly committed in all three jurisdictions, including the Hedderman-Byron homicides for which defendant had not yet been indicted. The attorney’s proposal that defendant receive concurrent sentences of 25 years to life in satisfaction of all charges was rejected. At the same meeting, it was agreed that the Albany County District Attorney’s office would assume responsibility for the cost of continuing psychiatric assistance which defendant could not afford but which defense counsel had arranged for defendant through the Schenectady County District Attorney.

After defendant indicated to his psychiatrist, Dr. Camperlengo, and a psychiatric social worker, Diane Kassel, that he was willing to speak to the police, a meeting was arranged for March 5, 1978. Defense counsel agreed to allow defendant to be questioned at that meeting, providing that certain conditions were met. Pursuant to defense counsel’s demands, a stipulation was entered into whereby all persons present at the meeting, except defendant and his attorney, were to be considered agents of the Schenectady County District Attorney’s office and all statements made thereat were to be kept secret. No disclosure was permitted without the defendant’s and his counsel’s written consent. The stipulation did allow the Albany County District Attorney, who was not notified of the meeting and did not appear, to be informed of the general substance of defendant’s statements.

At the meeting, defendant admitted committing several murders, including those at the Hedderman Religious Shop in Albany. The following day, defense counsel and Schenectady County Assistant District Attorney Carey notified Albany County District Attorney Greenberg of the meeting and the fact that defendant had made incriminating statements.

A nonjury trial was held in Schenectady County Court in July, 1978. While preparing for that trial, defense counsel, who decided to assert an insanity defense on defendant’s behalf, gave the transcript of the March 5 meeting to Dr. Zvi Klopott, a psychiatrist he planned to use as a defense witness. At the trial, Dr. Klopott testified that the defendant was suffering from a delusion that his deceased brother John lived within him and was responsible for the crimes that defendant had committed. He also testified that, according to the transcript furnished by defense counsel of the March 5 meeting, defendant admitted killing both Robert Hedderman and Margaret Byron in Albany. The trial concluded on July 21, 1978, and the defendant was found guilty.

On July 27, 1978, an Albany County Grand Jury indicted defendant for the murders of Robert Hedderman and Margaret Byron, and in October, 1978 the Albany County District Attorney’s office subpoenaed the transcript and tapes of the March 5, 1978 meeting. At a suppression hearing held prior to his Albany County murder trial, defendant unsuccessfully attempted to suppress the transcript and tapes, Maureen Toomey’s identification of defendant and the hair found on defendant’s clothing. The case then proceeded to trial where defendant’s attorney again presented the insanity defense. The defense failed and defendant was convicted and sentenced to consecutive sentences of 25 years to life for each murder.

On this appeal, defendant contends that he was deprived of the effective assistance of counsel, that the trial court erred in its Sandoval ruling, that unqualified opinion testimony was improperly admitted into evidence and that the statements he made at the March 5 meeting were not given voluntarily and should, therefore, have been suppressed. In asserting this last contention, defendant raises a number of overlapping issues involving allegations that the Albany County District Attorney was bound by the March 5 stipulation, that the Schenectady County District Attorney violated the terms of that stipulation, that defendant’s statements were not the product of a rational intellect and free will and that defendant inadvertently waived his right against self incrimination due to the ineffective assistance of his counsel.

Preliminarily, we note that the record supports the factual determination by the courts below that defendant’s statements were given freely and voluntarily and not as a result of improper police inducement. That issue, therefore, is beyond this court’s scope of review. (People v Taylor, 57 NY2d 729; cf. People v Harrison, 57 NY2d 470.) Furthermore, with respect to defendant’s claim of mental incompetence to make the statements, defendant was found to be mentally competent at both his Schenectady and Albany County trials. The affirmance of those factual determinations, which are supported by the record, similarly precludes review by this court.

Defendant’s contention that the Schenectady County District Attorney breached the terms of the March 5 stipulation is wholly without merit. Pursuant to the terms of the stipulation, Assistant District Attorney Carey promised not to disclose the details of defendant’s statements without the written consent of both defendant and his attorney. Carey scrupulously honored his promise. Contrary to defendant’s assertions, the Schenectady County District Attorney’s office did not improperly allow Albany County District Attorney Greenberg to obtain a copy of defendant’s March 5 statements. The transcript was lawfully subpoenaed by District Attorney Greenberg and only after defendant allowed certain of its contents to be publicly disclosed by Dr. Klopott during his testimony at defendant’s prior Schenectady County trial. By permitting Dr. Klopott to disclose the details of those admissions, as he necessarily had to in order to support defendant’s insanity defense, the defendant not only waived his physician-patient privilege (People v Edney, 39 NY2d 620; People v Al-Kanani, 33 NY2d 260), but also made that information a matter of public record. Defendant cannot be heard to claim, therefore, that the Schenectady County District Attorney breached the agreement to keep defendant’s incriminating statements secret. There is not a shred of evidence to indicate that the Schenectady County District Attorney’s office disclosed any of the details of the March 5 meeting to law enforcement officials, prosecutorial agencies or the public prior to the transcript of that meeting being subpoenaed by the Albany County District Attorney’s office.

The defendant argues alternatively that the Albany County District Attorney was bound by the March 5 stipulation and, thus, should not have been allowed to use defendant’s admissions against him at the HeddermanByron murder trial. In support of this argument, defendant contends that Diane Kassel, the psychiatric social worker who was present at the March 5 meeting and was a party to the stipulation, was an agent of the Albany County District Attorney’s office and, therefore, bound that agency to abide by the stipulation. While it is true that when asked by the Schenectady County District Attorney to assume financial responsibility for defendant’s continuing psychiatric care, including Dr. Camperlengo’s and Diane Kassel’s salaries, the Albany County District Attorney’s office agreed, this alone is insufficient to create an agency relationship. To the contrary, a review of the record in this case makes it abundantly clear that no such relationship existed.

It is undisputed that District Attorney Greenberg was never informed that the March 5 meeting was to take place. Defendant’s attorney testified that he specifically intended to exclude the Albany County District Attorney’s office from the meeting because of some undefined antipathy he had towards Albany County Assistant District Attorney Daniel Dwyer. Furthermore, Diane Kassel testified that it was defendant’s attorney that directed her to work under the supervision of Dr. Camperlengo and Dr. Camperlengo testified that Kassel was brought into the case by defendant’s attorney. Also noteworthy is the testimony of Assistant District Attorney Carey that when he notified District Attorney Greenberg on March 6 that the meeting had taken place and that he could not reveal the details thereof, Greenberg became upset and would not consent to the stipulation. Finally, District Attorney Greenberg testified that Diane Kassel appeared at the meeting as a representative of defendant’s attorney. In light of this undisputed testimony and the explicit classification of Diane Kassel as an agent of the Schenectady County District Attorney’s office in the stipulation entered into pursuant to defense counsel’s demand, there can be little doubt that Diane Kassel was not acting as an agent of the Albany County District Attorney’s office and, therefore, had no authority, actual or apparent, to bind that office in any way.

Turning then to defendant’s contention that he was denied his constitutional right to the effective assistance of counsel, we must consider the facts and circumstances as they existed at the time of the representation in order to evaluate the quality of the representation afforded the defendant. In doing so, it is important to avoid confusing mere losing tactics with truly ineffective representation and to avoid attributing undue significance to retrospective analysis. The constitutional requirement of effective assistance of counsel will be met where “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation”. (People v Baldi, 54 NY2d 137, 147.)

Applying this standard of review, we conclude that defendant was accorded effective assistance of counsel.

Defendant was a predicate felon facing the serious charges of kidnapping and robbery in a case where the prosecution’s * proof was overwhelming. Indeed, defendant was apprehended while still holding his victim. As a predicate felon, defendant faced a lengthy sentence if he was convicted. Furthermore, defense counsel knew that his client was a suspect in several brutal murders committed in the Albany area. This knowledge, coupled with the fact that defendant was apparently in need of and had requested psychiatric help, made it incumbent upon defense counsel to attempt to obtain a psychiatric evaluation for the purpose of helping defendant personally and, from a legal standpoint, to establish an insanity defense.

There can be little doubt that defense counsel’s decision to structure defendant’s defense around a claim of mental disease or defect was a proper one. (See People v Bennett, 29 NY2d 462.) While not disputing this fact, defendant contends that his attorney made a serious mistake in advising him to speak with law enforcement authorities on March 5 because there was nothing to be gained by doing so. To the contrary, we believe that it was entirely reasonable for defendant’s attorney to assume that by co-operating with the police he might revive the hope that a favorable plea might be accepted. Although there was no guarantee that this would happen, the truth of the matter was that defense counsel had precious few alternatives. Indeed, as things stood at the time, defendant had nothing to lose by speaking to the authorities. He was a predicate felon facing overwhelming proof of guilt on the kidnapping and robbery charges in Schenectady County and was facing substantial, if not overwhelming, evidence with respect to the Hedderman-Byron murders. Moreover, in light of defense counsel’s reasonably conceived plan to assert an insanity defense at the Schenectady County trial and necessarily to call Dr. Klopott to testify to the fact that defendant admitted committing the various murders but placed responsibility for them on his deceased brother John, the secrecy to be attached to the March 5 meeting became of secondary importance. Nevertheless, defendant’s attorney took steps to insure the secrecy of defendant’s statements by insisting on the stipulation. While it certainly would have been preferable to have had the Albany County District Attorney personally consent to the stipulation, to say that he would have done so, if asked, is rank speculation. That the stipulation ultimately proved ineffective in preventing the Albany County District Attorney from using the March 5 statements does not render defense counsel’s otherwise thoughtful and reasonably employed defense strategy ineffective. (People v Aiken, 45 NY2d 394, 399.)

In People v Baldi (54 NY2d 137, supra), a somewhat similar case, we held that an attorney provided effective representation to his client when, in an effort to strengthen the defendant’s insanity defense, the attorney took the stand and testified that his client had committed a large number of sexual assaults and murders. There, as here, defense counsel had thoroughly reviewed the facts of the case and the law relevant to his client’s defense. (People v Bennett, 29 NY2d 462, 466, supra.) In light of the overwhelming evidence of defendant’s guilt, we held that counsel’s defense strategy was reasonable. Similarly, we hold today that defendant’s attorney provided meaningful representation under the circumstances when he permitted defendant to speak with the authorities on March 5 and allowed Dr. Klopott to testify at the Schenectady County trial concerning statements made by defendant at that meeting.

We now turn our attention to defendant’s remaining claims of error. The record demonstrates that the trial court, at the pretrial Sandoval hearing, exercised its discretion in ruling that five of defendant’s prior convictions could be inquired into on cross-examination should defendant choose to testify. Indeed, the Judge specifically advised defense counsel that in reaching his decision he had considered the prejudicial effect that evidence of those convictions would have on the defendant. The ruling, therefore, cannot be said to constitute an abuse of discretion as a matter of law. (People v Mackey, 49 NY2d 274, 281; People v Sandoval, 34 NY2d 371, 378.) Inasmuch as the record demonstrates that the court exercised its discretion, appellate review ends in the intermediate appellate court. (People v Pollock, 50 NY2d 547, 550.)

Defendant also cites as error the trial court’s ruling allowing Dr. Jack Neville-Phillips Davies, a professor of pathology at Albany Medical College, to give his opinion as to whether the deaths of Robert Hedderman and Margaret Byron were the results of a maniacal attack. Defendant argues that Dr. Davies was not trained in psychiatry and was, therefore, not qualified to offer this testimony, which, according to defendant, constituted an opinion as to defendant’s mental state at the time of the slayings.

The record shows, however, that Dr. Davies did not testify as to defendant’s mental condition. After testifying that he had been involved in more than 40,000 autopsies, two to three thousand of which involved homicides, Dr. Davies was asked to define a maniacal stabbing. He responded that a pattern of widely distributed knife wounds is indicative of a maniacal stabbing. Dr. Davies further testified that a maniacal stab wound pattern was not found on the bodies of either Robert Hedderman or Margaret Byron. Thus, it is clear that Dr. Davies was testifying about the nature of the attack, a subject well within his area of competence, and not to defendant’s state of mind. There was no error in allowing Dr. Davies to so testify.

For all of the above reasons, the order of the Appellate Division should be affirmed.

Meyer, J.

(dissenting). The incompetence of defendant’s trial attorney is made clear by his own testimony (1) that he told defendant “that no one could ever use these statements that he had made that night against him; that he was in no jeopardy whatsoever * * * by giving these statements; that it can only help him and not hurt him” and (2) that before he gave the statements on March 5, 1978, defendant was granted immunity for any statement given by Captain Scheeman and Investigator Gannon on behalf of the Albany County District Attorney’s office. The fact, noted in the majority’s footnote 4, that defendant’s present attorney no longer presses the latter argument only emphasizes the trial attorney’s incompetence, for the March 5 meeting was a “criminal proceeding, other than a grand jury proceeding” and, therefore, under CPL 50.30, immunity turned on court approval, at the request of the District Attorney and, thus, was not within the competence of Scheeman and Gannon to give, even had they been employees of the Albany County District Attorney, which they were not.

The more particularly is this so in view of the prior negotiations of the attorney with the Albany County District Attorney, which had ended with harsh words. That the Albany District Attorney would have consented if asked was, therefore, highly improbable. The attorney’s strategy was hopelessly defective without that consent, yet without it he advised defendant that “no one” could use his statements. His ignorance of the law readily distinguishes the present case from People v Baldi (54 NY2d 137) on which the majority relies.

I would reverse and order a new trial.

Chief Judge Cooke and Judges Jones, Wachtler and Simons concur with Judge Jasen; Judge Meyer dissents and votes to reverse in a separate opinion.

Order affirmed.

      . The Albany County District Attorney apparently agreed to this arrangement in hopes that with proper treatment defendant would realize that it was he and not his brother John (who died in infancy but according to defendant lived within him) who was responsible for the murders. If the psychiatrist was successful, the District Attorney hoped to obtain a guilty plea from defendant.

      . Schenectady County Assistant District Attorney Carey reiterated the stipulations for the record. It was agreed, in pertinent part, as follows:
      “Today’s proceeding is entirely secret. The only persons who are aware of the proceeding are those present in this room and the District Attorney of Schenectady County, who is not present today. Everybody here has been sworn to secrecy. There will be no releasing of either the fact that this meeting is taking place or the substance of what has taken place today, with the exceptions that I’ll state later on. The proceedings are being recorded on tape. There are two tapes being made, one is an original which will be sealed at the end of the proceeding. The other one is for the purpose of Mr. McConchie, in the event that he misses anything on the stenographic minutes he’ll be able to review the second tape, and the tape is for the purpose of insuring the accuracy of the stenographic transcript. The stenographic transcript and the two tapes will be the property of the Schenectady County District Attorney. They will be in the sole and exclusive possession of the Schenectady County District Attorney. They will not be available to anyone else without the written permission of both Mr. Smith and his attorney, at that time. All the persons present, with the exception of Mr. Rosenblum and Mr. Smith, are to be considered the agents of the Schenectady County District Attorney’s Office and will abide by all the stipulations which are entered into between Mr. Rosenblum and myself. In no * * * the transcript or the tapes cannot be used in any form without Mr. Smith’s and his attorney’s permission. I will be permitted to discuss the matter with the District Attorneys of Montgomery County, Saratoga County and Albany County as to the substance of the fact that this meeting has taken place and to the general substance of the conversation, but I’ll reveal no other information without Mr. Smith and Mr. Rosenblum’s consent.
      “Mr. Smith is not waiving any of his fifth amendment privileges by being here today.” Those present at the meeting were: Lemuel Smith, his attorney, Diane Kassel, Captain Robert Scheeman of the New York State Police, Joseph Carey, Schenectady County District Attorney’s office, and a court reporter, Lynn McConchie. From time to time, four State Police investigators came in and out of the room; the investigators were R. T. Anslow, J. A. Manello, H. J. Malee and T. O. Rehm. In another room monitoring the tape recorder was Investigator Richard Gannon of the State Police.

      . During the cross-examination of Dr. Klopott, the prosecutor sought to introduce into evidence the transcript of the March 5, 1978 meeting. Judge Stroebel, however, refused to allow its admission on the ground that the Schenectady County District Attorney’s office had agreed, pursuant to the March 5 stipulation, that the particulars of that meeting would not be disclosed unless defendant and his attorney gave their permission in writing.

      . Defendant has apparently abandoned his argument raised below, that Captain Scheeman and Investigator Gannon, both of the New York State Police, were also agents of District Attorney Greenberg. In his brief to this court, defendant states that “the record of the instant case fails to reveal that either Captain Scheeman or Investigator Gannon were acting at any time as the agents of the Albany County District Attorney’s Office.”