text:
    In the Matter of Ralph Tutino, Appellant, v Ivan Warner, as a Justice of the Supreme Court, et al., Respondents.
    Submitted February 23, 1981;
    decided March 24, 1981
   Motion for clarification of this court’s order dismissing the appeal taken as of right herein denied. Motion for leave to appeal dismissed for mootness. [See 52 NY2d 886.]


source: Caselaw Access Project

license: Public Domain

text:
    Webster’s Red Seal Publications, Inc., Appellant-Respondent, v Gilberton World-Wide Publications, Inc., et al., Respondents-Appellants.
    Argued February 17, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Sidney Schreiberg for appellant-respondent.

      Bernard Novick for respondents-appellants.
   OPINION OF THE COURT

On plaintiff’s appeal: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the opinion by Justice Samuel J. Silverman at the Appellate Division (67 AD2d 339).

On defendants’ appeal: Appeal dismissed, without costs, upon the grounds that the dissent at the Appellate Division was not on a question of law in favor of defendants, the defendants were not aggrieved by the modification at the Appellate Division and no substantial constitutional question is directly involved (CPLR 5601).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Alfredo Feliciano, Appellant.
    Argued February 19, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Andrew H. Rossmer for appellant.

      Mario Merola, District Attorney (Gail Jacobs and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. There was no abuse of discretion as a matter of law.

Concur: Chief Judge Cooke and Judges-Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Paxton National Insurance Company, Appellant, v Merchants Mutual Insurance Company, Respondent.
    Argued February 18, 1981;
    decided March 26, 1981

      APPEARANCES of counsel

      Jay N. Rosenthal for appellant.

      Howard S. Rosenhoch for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (74 AD2d 715).

Concur: Chief Judge Cooke and Judges Jasen, GabriellIj Jones, WaChTler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Eugene Carl Stoesser, Appellant.
    Argued February 12, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Robert L. Estes for appellant.

      Malcolm C. Hughes, District Attorney (Joseph C. Shapiro of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted for a new trial.

The record at the suppression hearing is meagre at the critical point. It appears that in the evening of July 19, 1977 defendant voluntarily went to the police station in the Village of Walton at the request of the police. On being given his constitutional preinterrogation warning, defendant and his uncle (who had accompanied him) requested an attorney. None was furnished but defendant was allowed to make a telephone call in an effort to contact an attorney. Defendant and his uncle were then transported 27 miles to the New York police substation in Deposit, New York, where they arrived about 11:00 P.M., at which time the uncle again demanded that defendant The given an attorney and was assured that one would be provided. Defendant was separated from his uncle and taken to the personal office of Inspector Carmody where he remained until 5 or 6 o’clock the following morning. Carmody advised defendant. of his preinterrogation rights again and informed him that he was under arrest. Defendant stated that he did not want to talk without talking to an attorney. He was told that he would be given an attorney on his arraignment.

The transcript then becomes very sparse. Carmody testified in conclusory fashion that he did not question defendant who volunteered the oral statements sought to be suppressed. Defendant did not testify at the suppression hearing but submitted his affidavit in which he similarly conclusorily averred that his statement was given in response to questioning by Carmody who ignored his request for counsel. Neither provided any details as to what actually occurred.

The suppression court found that defendant’s statements were “voluntary and not in response to questions put to him by the investigators”, and this finding was affirmed at the Appellate Division.

Because defendant’s statements should have been suppressed his conviction must be reversed. Defendant was in police custody for an extended period of time, and he had several times requested an attorney. There is no finding here, and indeed the record would not have supported one, that defendant’s statements were spontaneous in the literal sense of that word as having been made without apparent external cause, i.e., self-generating. It is not sufficient that the statements were found to have beén voluntary and not in response to express questioning by the police. To entitle these statements to receipt in evidence it must at least be shown that they were in no way the product of an “interrogation environment”, the result of “express questioning or its functional equivalent” (cf. Rhode Island v Innis, 446 US 291, 300-301). No finding was made by the courts below in this regard and it cannot be said as a matter of law that defendant spoke with genuine spontaneity “and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed” (People v Maerling, 46 NY2d 289, 302-303). (Cf. People v Lucas, 53 NY2d 678.)

Defendant also contends that the initial warrantless search of his car at the Walton Police Station on January 20 violated his constitutional rights and that items obtained as a result of that search should have been suppressed. Inasmuch as there was no evidence before the suppression court to support its statement that the keys to defendant’s car had been given to the police (or by whom), there was no predicate for a conclusion of consent and accordingly failure to suppress those items was error.

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

Order reversed, statements made by defendant and items seized during a search of defendant’s car, suppressed and case remitted to Delaware County Court for a new trial in a memorandum.


text:
    The People of the State of New York, Respondent, v George Green, Appellant.
    Argued February 13, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Joseph B. Mistrett and Rose H. Sconiers for appellant.

      Edward C. Cosgrove, District Attorney (Joseph A. Matteliano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, defendant’s conviction for criminal possession of a forged instrument and sentence thereon vacated, and Count I of the indictment dismissed.

While there was evidence in the record to support defendant’s conviction of petit larceny, there is insufficient proof, as a niatter of law, to sustain the jury’s verdict of guilty of criminal possession of a forged instrument. An element of this latter crime is that the defendant have possession of a forged instrument “with knowledge that it is forged” (Penal Law, § 170.25). There was proof that the check was unindorsed when it was stolen from its owner; there was proof that it bore a forged indorsement when defendant delivered it to his accomplice six days later; and the People stipulated that the indorsement was not in defendant’s handwriting. There was no proof, however, that defendant stole the check from its owner, or of how or where it came into his possession (other than that he must have obtained it prior to his delivery of it to his accomplice) . There was no proof as to who had had the check after it was stolen before defendant acquired it or that the indorsement had not already been forged when it came into his hands. Proof of statements made by defendant to his accomplice and earlier to an acquaintance, as well as other evidence, was sufficient to support a finding that defendant knew that the check had been stolen. Any finding that he also knew that it was forged could have been premised on no more than speculation.

We have examined defendant’s other contentions relevant to his conviction for petit larceny and find them to be without merit.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Helen Monteferrante, Appellant, v New York City Fire Department et al., Defendants, and Uniform Firefighters Association, Respondent.
    Argued February 16, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Robert A. Goldstein for appellant.

      Emilio Nunez and Edward M. Edenbaum for respondent.
   OPINION OF THE COURT

Memorandum.

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

The court determined that defendant Uniformed Firefighters Association’s motion pursuant to CPLR 3216 to dismiss the complaint against it (for plaintiff’s failure to serve and file a note of issue within 90 days following demand) should have been granted. That determination was made, inter alia, in the exercise of discretion. On this record that determination did not constitute an" abuse of discretion nor was it otherwise affected by an error of law.

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

Order affirmed.


text:
    Maxine Goldfarb, Appellant, v George A. Hudson, Jr., et al., Defendants, and Rego Maintenance Corp., Respondent.
    Argued February 17, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Edgar T. Schleider for appellant.

      William Dinkes and Victor Roger Rubin for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 775). Appellant tendered no evidentiary proof in admissible form showing facts sufficient to require a trial.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Edna Bamert, Respondent, v Central General Hospital, Appellant.
    Argued February 16, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Howard S. Davis for appellant.

      Judith A. Livingston for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the

memorandum at the Appellate Division (77 AD2d 559). Question certified answered in the affirmative.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    John C. Saunders, Respondent-Appellant, v Nathan S. Kline, Appellant-Respondent.
    Argued February 16, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Stephen A. Weinstein for respondent-appellant.

      Sidney Dickstein, Charles W. Saber and Richard P. Perrin for appellant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate. Division should be modified to strike that portion of the order which awarded costs to the plaintiff in the trial court, and, as so modified, affirmed, with costs to the plaintiff on this appeal.

We agree with the Appellate Division, for the reasons stated in the memorandum of that court that the trial court erred in setting aside the jury verdict. We note, however, that the Appellate Division improperly awarded costs in all courts in contravention of CPLR 8102 (subd 1). That statute provides that in an action brought in Supreme Court, New York County, there may be no award of costs to a plaintiff who recovers less than $6,000. Therefore, although the Appellate Division had authority to assess costs against defendant on the appeal (CPLR 8107), the order of that court must be modified. This, of course, is not to say that despite this limited denial of costs the plaintiff may not recover his necessary disbursements in all courts (CPLR 8301, subd [c]).

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

Order modified in accordance with the memorandum herein, and, as so modified, affirmed, with costs to plaintiff.


text:
    In the Matter of Supreme Burglar Alarm Corp., Respondent, v Marshall G. Kaplan et al., Constituting the Tax Commission of the City of New York, Appellants.
    Argued February 17, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Morris Einhorn and Leonard Koerner of counsel), for appellant.

      Robert M. Trien for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (Matter of Quotron Systems v Irizarry, 48 NY2d 795).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Charmaine Norr, Appellant, v Enrique Spiegler, Respondent and Third-Party Plaintiff. City of New York et al., Third-Party Defendants and Fourth-Party Plaintiffs; Beth Israel Medical Center, Fourth-Party Defendant.
    Argued February 18, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Martin S. Rothman and Eric Gewurz for appellant.

      Allen G. Schwartz, Corporation Counsel (Paul T. Rephen, Alfred Weinstein and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Leonard H. Sandler at the Appellate Division (72 AD2d 20).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Hector Pacheco, Appellant.
    Argued February 12, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (William Gurin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, but on the ground that defendant had no standing to raise the equal protection argument he advances (People v Parker, 41 NY2d 21, 24-25).

Defendant’s equal protection contention is based upon the definition of predicate felony conviction in subdivision 1 (par [b], cl [i]) of section 70.06 of the Penal Law, which is: “The conviction must have been in this state of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed” (emphasis supplied). The italicized words, upon which defendant’s argument is predicated, were added to the clause by chapter 784 of the Laws of 1975. Read without those words, as prior to that amendment it must have been, it is clear that the words “was authorized” relate to the other jurisdiction offense. The added words, it is argued, relate to time of sentence, rather than time of commission of offense and there is, therefore, unequal protection because the prior New York conviction is not required, as would be a foreign conviction, to be based upon an offense which is a felony in New York at the time of sentence (cf. People v Shapiro, 100 Misc 2d 662, 664).

The answer is that the Marihuana Reform Act of 1977, which reduced the offense of which defendant was previously convicted from felony to misdemeanor classification, expressly provided that its provisions “shall be applicable to acts committed on or after” its effective date (July 29, 1977 [1977, ch 360, § 12]). As to the prior offense which defendant committed, a sentence to a term of imprisonment in excess of one year is, therefore, still authorized in this State with respect to anyone convicted of committing the forbidden act prior to July 29, 1977, though he or she may be thereafter convicted. There are, in fact, two authorized but differing sentences depending on the date of commission of the offense. Thus, it is not true as defendant argues that a foreign conviction cannot be used as a predicate felony because not presently a felony in New York; if the act in the foreign State was committed prior to July 29,1977 it is still punishable under New York law as a felony. All persons in defendant’s class (pre-July 29, 1977 commission) are, therefore, treated equally. Whether a post-July 29, 1977 offender is treated unequally is an argument defendant does not have standing to make.

As to the sentencing issue, defendant asked the Sentencing Judge to impose a lesser sentence than had been bargained for, but never argued that the Judge was not bound by the bargain and, therefore, has not preserved the question for our review (People v Chambers, 52 NY2d 923; People v Martin, 52 NY2d 925; and see People v Farrar, 52 NY2d 302).

Chief Judge Cooke (concurring). Although the order of the Appellate Division should be affirmed, as the majority concludes, the affirmance should be based upon the merits rather than upon defendant’s asserted lack of standing. In concluding that defendant has no standing, the majority adopts a reading of the Penal Law’s second felony offender provisions , that is inconsistent with the statutory language and undercuts the Legislature’s efforts to remove unduly harsh anomalies from the sentencing scheme. I therefore concur separately.

Defendant raises a challenge, on equal protection grounds, to his sentence as a second felony offender under section 70.06 of the Penal Law. In June, 1972, he pleaded guilty to fourth degree attempted criminal possession of a dangerous drug, marihuana, and received five years probation. At that time, the offense was an E felony (former Penal Law, § 220.06). On May 19, 1977 he pleaded guilty to fifth degree criminal sale of a controlled substance, cocaine. He was sentenced as a second felony offender. Defendant’s equal protection argument centers on the impact of a 1975 amendment (L 1975, ch 784) to the definition of a “second felony offender” in section 70.06 (subd 1, par [b], cl [i]) of the Penal Law. The statute provides that for a prior conviction to constitute a predicate felony, the conviction “must have been in this state of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed.” The words “and is authorized in this state” were added by the 1975 amendment.

In essence, defendant argues that the statute violates equal protection because any prior New York felony conviction can serve as a predicate felony, while an out-of-State conviction can be used only if a sentence of at least one year was authorized at the time and is currently authorized in New York. Thus, he asserts, when this State reclassifies a crime from a felony to a misdemeanor, a prior out-of-State conviction for the offense can no longer serve as a predicate felony. A prior New York felony conviction can still serve as a predicate felony, however, even though the offense would no longer be a felony in New York. Effective July 29, 1977, the Legislature reclassified the crime of which defendant was convicted, reducing it for future offenses from a felony to a misdemeanor (Marihuana Reform Act of 1977, L 1977, ch 360).

The majority rejects defendant’s argument by holding that defendant is not, in fact, treated differently from those persons who were convicted in other jurisdictions at the same time of the same offense. To reach this conclusion, however, the majority carves a hole in the 1975 amendment to section 70.06. Such an exception is inconsistent with the language of the amendment and the rationale behind it.

As the majority notes, the Marihuana Reform Act reduced penalties for marihuana-related offenses prospectively only. Thus, an act such as defendant’s, occurring in New York before the effective date of July 29, 1977, would still be subject to felony treatment. The majority errs, however, in extending this rationale to encompass similar acts occurring outside the State before July 29,1977. It reasons that since defendant’s offense, because of the date on which it occurred, is still a felony in New York, a similar offense occurring out-of-State on the same date should also be considered a felony for purposes of New York’s second felony offender provisions. This interpretation, however, effectively nullifies the 1975 amendment to section 70.06 with respect to such cases.

The current second felony offender statute (Penal Law, § 70.06), as originally enacted by the Legislature in 1973, defined a predicate felony as any New York felony conviction or any conviction in another jurisdiction that carried a potential penalty of at least a year in prison or death. This court found no constitutional infirmity in the Legislature’s determination that in defining a predicate felony “the seriousness of a crime should be determined by the severity of the sentence and the norms prevailing in the jurisdiction in which a crime was committed” (People v Parker, 41 NY2d 21, 26). Nonetheless, there was criticism of the statute as unduly harsh in those instances where another State’s felony laws were substantially more severe than those of New York (see, e.g., People v Mazzie, 78 Misc 2d 1014,1017-1018). In 1975, the Legislature amended the definition to ameliorate this “purely arbitrary” harshness (memorandum by Assemblyman Arthur O. Eve, NY Legis Ann, 1975, p 64) and to take what has been characterized as a “fairer and more logical approach” (Hechtman, 1975 Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 70.06).

In effect, the 1975 amendment added a second requirement to the statute’s test for identifying those convictions from other jurisdictions that constitute predicate felonies for purposes of this State’s second felony offender provisions. To the existing requirement that the offense be one for which the other jurisdiction has provided penalties that in New York are reserved for felonies, the amendment added the requirement that the other jurisdiction’s assessment of the seriousness of the offense be in accord with that of New York. Since the goal of this amendment was to provide greater fairness in assessing whether a prior offense should be used as a basis for increasing the sentence for a second felony, logic dictates that the sentencing court should look to New York law at the time of sentencing on the second offense. The amendment itself directs the sentencing court to examine whether felony punishment “is authorized in this state”, not whether it was authorized at the time of the earlier conviction.

It is true that a marihuana-related offense such as defendant’s first conviction, if committed in New York prior to July 29, 1977, may still be punished as a felony under the Marihuana Reform Act. This is not relevant, however, in determining whether an out-of-State prior conviction for such an offense before July 29, 1977 should be considered a predicate felony. The second felony offender provisions of the Penal Law are not designed to retroactively increase the punishment for past offenses. As this court has stated, the purpose of heightened penalties for second felony offenders “is to combat recidivism by increased punishment, not for the previous out-of-State offense but, rather for the commission of the subsequent offense” (People v Parker, 41 NY2d 21, 26, supra). Because the focus is on the sentencing for the second offense, it is most consistent with the statute to look to the time of that sentencing rather than the date of commission of the prior out-of-State offense in determining whether the earlier conviction would constitute a felony under New York law.

Since section 70.06 provides that any prior New York felony conviction can serve as a predicate felony, even if the offense would not be a felony if committed in the State today, defendant is therefore treated differently from a person with an out-of-State prior conviction. Thus, defendant does have standing to assert his equal protection challenge.

The statute’s distinction between those in defendant’s position and persons with out-of-State convictions for similar offenses, however, is constitutionally permissible. Equal protection does not require absolute equality of treatment. Rather, absent a suspect classification or fundamental interest, all that is required is that the distinction bear a rational relationship to some legitimate State purpose (People v Drayton, 39 NY2d 580; McGinnis v Royster, 410 US 263). The distinction drawn by section 70.06 is certainly related to a legitimate purpose of this State. New York has a strong interest in enforcing its own laws and punishing violations of its criminal statutes. At the time that he committed his prior offense, defendant chose to violate a law of this State through conduct that the Legislature had deemed harmful enough to be punished by felony penalties. It is not unreasonable for the Legislature to provide that a person who violated this State’s felony laws once should suffer heightened punishment if he commits a second felony in New York since such a person has demonstrated a repeated disregard for the State’s most serious criminal prohibitions and has shown a failure to benefit from whatever rehabilitative efforts were offered by the State after the first offense.

The Legislature has determined, although it was not constitutionally required to do so, that out-of-State convictions’ that would not now be felonies in New York should not be used as the basis for increased punishment after conviction .of a New York felony. It is certainly free to do the same for persons convicted of offenses in New York that were felonies at the time but have since been reduced to lesser crimes. But the Legislature is not required to do so by either the State or Federal Constitution.

The order of the Appellate Division should therefore be affirmed.

Judges Jasen, Jones, Wachtler and Meyer concur; Chief Judge Cooke concurs in a concurring opinion in which Judges Gabrielli and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    In the Matter of Benjamin Greshin, Respondent, v Suffolk County Legislature et al., Appellants.
    Argued February 16, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      David J. Gilmartin, County Attorney (Leonard J. Shore of counsel), for Suffolk County Legislature, appellant.

      Richard C. Cohn for John L. Mara and others, appellants.

      Benjamin Greshin, respondent pro se.

   OPINION OF THE COURT

Order modified, without costs, for the reasons stated in the concurring in part and dissenting in part memorandum by Justice Frank A. Gulotta at the Appellate Division (77 AD2d 596-599), by declaring that petitioner Greshin’s term of office as a member of the Suffolk County Vanderbilt Museum Commission expired on December 28, 1978 and that John L. Mara was duly appointed as a member of said commission to the term formerly occupied by petitioner Greshin and, as so modified, affirmed.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Appellant, v Martin J. Burke, Respondent.
    Argued February 18, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Henry J. Scudder, Special Assistant District Attorney, for appellant.

      John T. Sylvester and Edward J. Degnan for respondent.
   OPINION OF THE COURT

Order affirmed. The finding of the Suppression Judge, affirmed by the Appellate Division, that the defendant’s second statement was tainted by the first and was not spontaneous involved no error of law.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Carmine A., Appellant.
    Submitted March 23, 1981;
    decided March 26, 1981
   Motion to vacate a stay which was granted pursuant to CPL 460.60 (subd 1) denied.


text:
    In the Matter of Roxanne F. Commissioner of Social Services of the City of New York et al., Respondents; Reuven Simons, Intervenor-Appellant.
    Decided March 26, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (NY Const, art VI, § 3, subd b, par [1]; CPLR 5601, subd [a], par [ii]; Ocasio v Ocasio, 37 NY2d 921; Cohen and Karger, Powers of the New York Court of Appeals, § 46, p 193).


text:
    The People of the State of New York, Respondent, v Raymond De Jesus, Appellant.
    Submitted January 5, 1981;
    decided March 26, 1981
   Motion to dismiss the appeal denied (see CPL 470.60, subd 3).


text:
    In the Matter of John L. Grady et al., Appellants, v John R. Tenney et al., as Justices of the Supreme Court of the State of New York, Respondents.
    Submitted March 23, 1981;
    decided March 26, 1981
   Motion to dismiss appeal granted and the appeal dismissed, without costs, upon the ground that it does not lie (CPLR 5601).


text:
    Donato Ian, Respondent, v Karin Wassberg, Appellant, et al., Defendants.
    Submitted March 9, 1981;
    decided March 26, 1981
   (A) Motion to dismiss the appeal denied. (B) Motion for leave to appeal denied as unnecessary (see Dalrymple v Shults Chevrolet, 39 NY2d 795).


text:
    Linnea Mattsson, as Executrix of Johan Mattsson, Deceased, et al., Appellants, v Johns-Manville Products Corp. et al., Respondents.
    Submitted February 23, 1981;
    decided March 26, 1981
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements to respondent Owens-Corning Fiberglass Corp., upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 14, P 62).


text:
    Pan American World Airways, Inc., Appellant, v Overseas Raleigh Romany, Ltd., et al., Respondents.
    Submitted March 2, 1981;
    decided March 26, 1981
   Motion for leave to appeal from dismissal of the causes of action against Overseas Raleigh Romany, Ltd., dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal from the dismissal of the causes of action against Century Factors, Inc., and William Iselin & Co., denied. Twenty dollars costs, and necessary reproduction disbursements to respondents.


text:
    People’s Oil Co., Inc., Appellant, v Nichols Mobil Service et al., Respondents.
    Submitted March 16,1981;
    decided March 26, 1981
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (e.g., Seligman v Tucker, 36 NY2d 921; Cohen and Karger, Powers of the New York Court of Appeals, § 38, p 156; § 46, p 204).


text:
    The People of the State of New York ex rel. Stanley Pyclik, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted January 12, 1981;
    decided March 26, 1981
   Motion for leave to appeal dismissed upon the ground that the proceeding is presently before the Appellate Division on reargument. We note, however, that this disposition is without prejudice to either party, if so advised, proceeding in timely fashion, pursuant to either CPLR 5601 or 5602, with respect to the order of the Appellate Division entered after reargument.


text:
    In the Matter of Raer Corporation, Appellant, v Village Board of Trustees of the Village of Clifton Springs, Respondent.
    Submitted March 16, 1981;
    decided March 26, 1981
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the supporting papers, including the brief, were not served at least eight days prior to the statutory return date of the motion (CPLR 5516, 2214; 22 NYCRR 500.9; Dellaratta v International House of Pancakes, 46 NY2d 936).


text:
    W. A. Olson Enterprises, Inc., Respondent, v Agway, Inc., et al., Appellants.
    Submitted February 23,1981;
    decided March 26, 1981
   Motion to dismiss the appeal denied.


text:
    In the Matter of Schultz Construction, Inc., Appellant-Respondent, v Philip Ross, as Industrial Commissioner of the State of New York, Respondent-Appellant.
    Submitted March 16, 1981;
    decided March 26, 1981
   Motion to vacate the Court of Appeals order dated January 20, 1981 dismissing petitioner’s appeal denied. [See 52 NY2d 897.]


author: Jasen, J.

text:
    The People of the State of New York, Respondent-Appellant, v Richard P. Lucas, Appellant-Respondent.
    Argued February 11, 1981;
    decided March 26, 1981

      APPEARANCES OF COUNSEL

      Carl J. Silverstein for appellant.

      Joseph Jaffe, District Attorney (Stephen F. Lungen of counsel), for respondent.

      Robert Abrams, Attorney-General (Frederick R. Walsh and Shirley Adelson Siegel of counsel), in his statutory-capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

Insofar as appealed from by defendant, the order of the Appellate Division should be reversed, the statements made by defendant on the airplane and' the physical evidence seized in the motel room suppressed and the case remitted for further proceedings on the indictment. The cross appeal taken by the People should be dismissed.

Following a jury trial, defendant was convicted of murder in the second degree, kidnapping in the first' degree and robbery in the first degree. The Appellate Division modified the judgment, on the law and the facts, by dismissing the kidnapping and robbery counts. We conclude that the remaining conviction for murder in the second degree must be reversed, because the trial court erroneously permitted the introduction of certain illegally obtained evidence.

One of the more damaging items of evidence introduced at the trial was an uncounseled, inculpatory statement made by defendant while he was being transported from Florida to New York following an extradition proceeding. By the time the statement was made, a warrant for defendant’s arrest on this charge had been issued by a Magistrate in New York. Moreover, it is undisputed that defendant was in custody at the time he made the statement and that he had previously requested the assistance of an attorney. Hence, defendant’s “indelible” right to counsel had attached and any waiver of that right made in the absence of counsel would have to be deemed invalid (People v Samuels, 49 NY2d 218; People v Cunningham, 49 NY2d 203; see People v Settles, 46 NY2d 154). Nevertheless, the courts below concluded that the uncounseled statement in question need not be suppressed, since, in their view, it was made “voluntarily” and “spontaneously” (see People v Kaye, 25 NY2d 139). This conclusion, however, is simply not supported by the record.

According to the credited testimony of Officer Reidy, who was present when the statement was made, defendant initiated the conversation by asking the officer whether it was permissible to discuss the case. The officer replied in the affirmative, but reminded defendant that any statements he made could be used against him at trial. Defendant, in turn, acknowledged this admonition, but indicated that he wished to ask some questions about the pending charges. He then proceeded to ask Officer Reidy about the status of his case. Officer Reidy replied by informing him that the District Attorney had already obtained a 14-page statement from his alleged accomplice, Richard Graham, in which Graham acknowledged his own participation in the underlying robbery, but accused defendant of having been the sole perpetrator of the murder. Defendant responded immediately, stating: “Well, I would like to talk to somebody about this. I might have been involved, but I didn’t do — I didn’t kill anybody”.

This statement cannot be considered “spontaneous” under any view of the facts, since it was not a blurted-out admission, but was instead the product of an “extended discussion” between defendant and the police officer (People v Cunningham, supra, at p 210, n 2). It is not of controlling significance that the statement was “volunteered” in the sense that it was not made in response to direct interrogation, for, as we have previously observed, “the spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed” (People v Maerling, 46 NY2d 289, 302-303). Here, there can be no doubt that the police officer, by engaging in the discussion with defendant concerning the crime with which he was charged and by informing defendant of his alleged accomplice’s statement, evoked the uncounseled, inculpatory statement from the defendant. Accordingly, the statement made by defendant should have been suppressed.

The trial court also erred in refusing to suppress certain items of physical evidence which were seized from defendant’s Florida motel room immediately after his arrest. The seized items included: a brown briefcase purportedly owned by Graham, a black briefcase purportedly owned by defendant, a safe deposit box key for a box registered in defendant’s name, receipts for American Express travelers’ checks issued to defendant, a card showing defendant’s and Graham’s addresses and several Western Union receipts for money orders allegedly sent by defendant to friends in New York. As the People have candidly conceded, the warrantless search of defendant’s motel room was “overbroad”, extending far beyond the permissible scope of a search incident to a lawful arrest (see Chimel v California, 395 US 752). Hence, the evidence seized during the course of the search must be suppressed. We note, however, that any information related to the suppressed physical evidence which the police legitimately obtained through independent sources may be used in evidence against defendant if the People decided to retry him on the remaining murder counts.

Inasmuch as we have concluded that there must be a new trial because of the erroneous suppression rulings discussed above, we find it unnecessary to consider the numerous claims made by defendant concerning a variety of supposed trial error. It should be noted, however, that we find no merit to defendant’s contention that the entire indictment should have been dismissed at the close of the trial for lack of legally sufficient evidence. Nor can we agree that the indictment should have been dismissed on the ground that defendant was denied his constitutional right to a speedy trial, since, as the courts below found, the delays in the proceedings were attributable, for the most part, to defendant’s own actions.

Finally, we hold that the People’s cross appeal from so much of the Appellate Division order as dismissed the kidnapping and robbery counts must be dismissed. The order from which the People appeal recites that the modification was made “on the law and the facts”, and an examination of the Appellate Division opinion indicates that the recitation in the order is accurate. Thus, we have no power to entertain the People’s appeal (CPL 450.90, subd 2, par [a]).

Jasen, J.

(concurring). I agree with the majority that defendant’s inculpatory statement to Officer Reidy was not “spontaneous” as á matter of law. I-disagree, however, with the standard employed by the majority in reaching this conclusion and, therefore, am unable to join in their opinion.

The majority, adopting language used by this court in People v Maerling (46 NY2d 289, 302-303), states that spontaneity must “be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed.” While I have no quarrel with this general proposition, I do not believe that it states the appropriate standard to be applied in determining whether or not a statement was truly spontaneous. In my view, the quoted language from People v Maerling was meant merely to illustrate instances of nonspontaneous declarations and was not intended to be a pronouncement of the legal test to be utilized by a suppression court confronted with the task of determining whether a statement was spontaneous when made.

More recently, in People v Lynes (49 NY2d 286), this court had the opportunity again to address the question whether an uncounseled statement was truly spontaneous. In Lynes, we stated that the test to be employed by a suppression court in such situations is “whether the defendant’s statement can be said to have been triggered by police conduct which should reasonably have been anticipated to evoke a declaration from the defendant”. (People v Lynes, supra, at p 295.) Rather than attempting to pigeonhole defendant’s statement into one of the categories delineated in People v Maerling, the present case should be measured under the more appropriate Lynes standard.

Applying the test in People v Lynes, there can be no doubt that defendant’s inculpatory statement was not spontaneous. Indeed, it was only after the extended discussion between Officer Reidy and defendant, in which Reidy informed defendant of the current status of the charges pending against him and of his alleged accomplice’s statement, that defendant came forth with the inculpatory statement. Under any view of the facts, defendant’s statement can only have been the result of this ongoing conversation with Officer Reidy “which should reasonably have been anticipated to evoke a declaration from the defendant.” (People v Lynes, supra, at p 295.) Thus, as á matter of law, this uncounseled statement was not spontaneous and should have been suppressed.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Puchsberg and Meyer concur; Judge Jasen concurs in a concurring opinion.

On defendant’s appeal: Order reversed, statements made by defendant on the airplane and physical evidence seized in the motel room suppressed and the case remitted to Sullivan County Court for further proceedings on the indictment.

On People’s appeal: Appeal dismissed.

       We reject defendant’s additional argument that two safe deposit box keys for a box registered in Graham’s name should have been suppressed. These keys were taken directly from a purse owned by Roberta Holmes, a friend who had accompanied the two men on their sojourn to- Florida. Since Holmes was carrying the purse on her person at the time it was searched by the police officers, defendant has no standing to challenge the legality of the search; inasmuch as the safe deposit box in question was registered in Graham’s name and there is no showing that Lucas had any legal interest therein, he has no standing to challenge the seizure (cf. United States v Lisk, 522 F2d 228, cert den 423 US 1078).


text:
    In the Matter of Laura Lindley, Petitioner, v Babylon Town Clerk et al., Respondents. John Braslow, Appellant, v Raymond C. Allmendinger, as Supervisor of the Town Board of the Town of Babylon, et al., Respondents..
    Argued March 26,1981;
    decided March 27, 1981

      APPEARANCES OF COUNSEL

      Patrick Kevin Brosnahan, Jr., for appellant.

      Paul Thorpe for Laura Lindley, respondent.

      Joseph F. Klein, Town Attorney (Steven M. Schapiro of counsel), for Raymond C. Allmendinger and others, respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division. We note that we do not reach and therefore do not pass on the question whether in a single petition for permissive referendum more than one resolution may be joined.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Rudolph M. Klenosky, Appellant, v New York City Police Department et al., Respondents.
    Decided March 31, 1981

      APPEARANCES OF COUNSEL

      Rudolph M. Klenosky, appellant pro se.

      Allen G. Schwartz, Corporation Counsel (Joan E. Handler of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d.793; see, also, Tdbankin v Codd, 40 NY2d 893).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Arthur Pashcow et al., Doing Business as Town Realty Company (Dix Hills Company) et al., Appellants, v Town of Babylon, Respondent.
    Argued February 12, 1981;
    decided March 31, 1981

      APPEARANCES OF COUNSEL

      Alan Manning Miller for appellant.

      Joseph F. Klein, Town Attorney (Patrick J. Barton of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this action for a declaratory judgment it cannot be said that the ordinance of the Town of Babylon is unconstitutional on its face, for it does require consent or a warrant for an administrative search except in emergency situations. The court may not speculate, at this juncture, concerning the possible application of the ordinance in an unconstitutional manner, but we note that an owner’s ability to rent his premises may not be conditioned upon his consent to a warrantless inspection (see Sokolov v Village of Freeport, 52 NY2d 341).

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant-Respondent, v James H. Northrop, Inc., Respondent-Appellant, and Jean K. Northrop and Norlynn Realty Corp., Respondents.
    Submitted February 12, 1981;
    decided March 31, 1981

      APPEARANCES OF COUNSEL

      Eli Kramer, Corporation Counsel (Carolyn A. Cairns of counsel), for appellant-respondent.

      Reuben R. Kaufman for respondent-appellant and respondents.
   OPINION OF THE COURT

Order modified by reversing the conviction of defendant James H. Northrop, Inc., remitting the fine and dismissing the accusatory instrument against said defendant and, as so modified, affirmed (see Sokolov v Village of Freeport, 52 NY2d 341).

Concur: Chief Judge Cooke und Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Charles S. Wilson Memorial Hospital, Appellant, v David Axelrod, as Commissioner of Health of the State of New York, Respondent.

      Argued February 18, 1981;
    decided March 31, 1981

      APPEARANCES OF COUNSEL

      John M. Keeler, Richard H. Pille and James S. Gleason for appellant.

      Robert Abrams, Attorney-General (George M. Thorpe and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (76 AD2d 968).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of George B. Hansen, Jr., Appellant, v State Liquor Authority et al., Respondents.
    Argued February 17, 1981;
    decided March 31, 1981
    APPEARANCES OF COUNSEL

      Monroe I. Katcher, II, for appellant.

      Leslie W. Trebby and Warren B. Pesetsky for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. On the record here, we cannot say that the determination of the State Liquor Authority, that public convenience and advantage would not be promoted by granting the appellant’s application, was arbitrary or capricious, much less irrational (see Matter of Mandee Liqs. v Roth, 57 AD2d 961, affd 44 NY2d 653).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of the Arbitration between Doris Allen, Appellant, and New York State et al., Respondents. Civil Service Employees Association, Inc., as Party in Interest.
    Argued February 19, 1981;
    decided March 31, 1981

      APPEARANCES OF COUNSEL

      Joel Field for appellant.

      Robert Abrams, Attorney-General (Robert L. Schonfeld, Shirley Adelson Siegel and Thomas P. Dorsey of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The arbitration agreement expressly authorized the disciplinary arbitrator to determine the “appropriateness of proposed penalties” and further provided that the arbitrator “has full authority, if the remedy proposed by the State is found to be inappropriate to devise an appropriate remedy including an increase in the penalty sought by the State”. In view of the breadth of these explicit provisions of disciplinary power, it cannot be said that the arbitrator acted in excess of his jurisdiction in construing the agreement so as to permit him to allow the State to amend the penalty proposed by it in its “notice of discipline”, a proposal which still left him free to ultimately reject or accept the penalty in whole or in part (see Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167, 172). Additionally, we note that, even if the State’s brief to the arbitrator should not have included the extrahearing statements, as to which in any event no prejudice or reliance thereon has been demonstrated, it is basic that an arbitrator’s award, so long as it stays within the bounds of rationality, may not be vacated for errors of law or fact (see Matter of Board of Educ. [Hess], 49 NY2d 145, 151-152; Lentine v Fundaro, 29 NY2d 382, 385).

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

Order affirmed, without costs, in a memorandum.


text:
    Samuel Porter et al., Respondents, v Peter Wertz et al., Defendants, and Richard Feigen Gallery, Inc., et al., Appellants.
    Argued February 17, 1981;
    decided March 31, 1981

      APPEARANCES OF COUNSEL

      Arthur S. Penn and Lawrence E. Fabian for appellants.

      Linda E. Kupersmith and A. Harry Kupersmith for respondents.

      Robert Abrams, Attorney-General (Gustave Harrow and Jonathan J. Silbermann of counsel), amicus curiae.

      Gilbert S. Edelson for Art Dealers Association of America, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The judgment appealed from and order of the Appellate Division brought up for review should be affirmed, with costs. We agree with the Appellate Division’s conclusion that subdivision (2) of section 2-403 of the Uniform Commercial Code does not insulate defendants from plaintiff Porter’s lawful claim to the Utrillo painting. Subdivision (2) of section 2-403 of the Uniform Commercial Code provides: “Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.” The “entruster provision” of the Uniform Commercial Code is designed to enhance the reliability of commercial sales by merchants (who deal with the kind of goods sold on á regular basis) while shifting the risk of loss through fraudulent transfer to the owner of the goods, who can select the merchant to whom he entrusts his property. It protects only those who purchase from the merchant to whom the property was entrusted in the ordinary course of the merchant’s business.

While the Utrillo painting was entrusted to Harold Von Maker, an art merchant, the Feigen Gallery purchased the painting not from Von Maker, but from one Peter Wertz, who turns out to have been a delicatessen employee acquainted with Von Maker. It seems that Von Maker frequented the delicatessen where Peter Wertz was employed and that at some point Von Maker began to identify himself as Peter Wertz in certain art transactions. Indeed, Von Maker identified himself as Peter Wertz in his dealings with Porter.

Defendants argued that Feigen reasonably assumed that the Peter Wertz who offered the Utrillo to him was an art merchant because Feigen had been informed by Henry Sloan that an art dealer named Peter Wertz desired to sell a Utrillo painting. Feigen therefore argues that for purposes of subdivision (2) of section 2-403 of the Uniform Commercial Code it is as though he purchased from a merchant in the ordinary course of business. Alternatively, he claims that he actually purchased the Utrillo from Von Maker, the art dealer to whom it had been entrusted, because Peter Wertz sold the painting on Von Maker’s behalf. Neither argument has merit.

Even if Peter Wertz were acting on Von Maker’s behalf, unless he disclosed this fact to Feigen, it could hardly be said that Feigen relied upon Von Maker’s status as an art merchant. It does not appear that the actual Peter Wertz ever represented that he was acting on behalf of Von Maker in selling the painting.

As to the argument that Feigen reasonably assumed that Peter Wertz was an art merchant, it is apparent from the opinion of the Appellate Division that the court rejected the fact finding essential to this argument, namely, that Peter Wertz had been introduced to Feigen by Henry Sloan as an art merchant. The court noted that in his examination before trial Richard Feigen had testified that he could not recall whether Henry Sloan had described Peter Wertz as an art dealer and concluded that this substantially weakened the probative force of Feigen’s trial testimony on this point. Indeed, Peter Wertz testified that Von Maker had not directed him to the Feigen Gallery but had simply delivered the painting to Wertz and asked him to try to find a buyer for the Utrillo. Wertz had been to several art galleries before he approached the Feigen Gallery. Thus, the Appellate Division’s finding has support in the record.

Because Peter Wertz was not an art dealer and the Appellate Division has found that Feigen was not duped by Von Maker into believing that Peter Wertz was such a dealer, subdivision (2) of section 2-403 of the Uniform Commercial Code is inapplicable for three distinct reasons: (1) even if Peter Wertz were an art merchant rather than a delicatessen employee, he is not the same merchant to whom Porter entrusted the Utrillo painting; (2) Wertz was not an art merchant; and (3) the sale was not in the ordinary course of Wertz’ business because he did not deal in goods of that kind (Uniform Commercial Code, § 1-201, subd [9]).

Nor can the defendants-appellants rely on the doctrine of ' equitable estoppel. It has been observed that subdivision (1) of section 2-403 of the Uniform Commercial Code incorporates the doctrines of estoppel, agency and apparent agency because it states that a purchaser acquires not only all title that his transferor had, but also all title that he had power to transfer (White & Summers, Uniform Commercial Code, § 3-11, p 139).

An estoppel might arise if Porter had clothed Peter Wertz, with ownership of or authority to sell the Utrillo painting and the Feigen Gallery had relied upon Wertz’ apparent ownership or right to transfer it. But Porter never even delivered the painting to Peter Wertz, much less create apparent ownership in him; he delivered the painting to Von Maker for his own personal use. It is true, as previously noted, that Von Maker used the name Peter Wertz in his dealings with Porter, but the Appellate Division found that the Feigen Gallery purchased from the actual Peter Wertz and that there was insufficient evidence to establish the claim that Peter Wertz had been described as an art dealer by Henry Sloan. Nothing Porter did influenced the Feigen Gallery’s decision to purchase from Peter Wertz a delicatessen employee. Accordingly, the Feigen Gallery cannot protect its defective title by a defense of estoppel.

The Appellate Division opined that even if Von Maker had duped Feigen into believing that Peter Wertz was an art dealer, subdivision (2) of section 2-403 of the Uniform Commercial Code would still not protect his defective title because as a merchant, Feigen failed to purchase in good faith. Among merchants good faith requires not only honesty in fact but observance of reasonable commercial standarás (Uniform Commercial Code, § 2-103, subd [1], par [b]). The Appellate Division concluded that it was a departure from reasonable commercial standards for the Feigen Gallery to fail to inquire concerning the title to the Utrillo and to fail to question Peter Wertz’ credentials as an art dealer. On this appeal we have received amicus briefs from the New York State Attorney-General urging that the court hold that good faith among art merchants requires inquiry as to the ownership of an object d’art, and from the Art Dealers Association of America, Inc., arguing that the ordinary custom in the art business is not to inquire as to title and that a duty of inquiry would cripple the art business which is centered in New York. In view of our disposition we do not reach the good faith question.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    Brainerd Manufacturing Co., Respondent, v Dewey Garden Lanes, Inc., et al., Appellants.
    Decided March 31, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie (NY Const, art VI, § 3, subd b, par [7]).


text:
    Rhoda Galyn, Respondent, v Lawrence Schwartz, Appellant.
    Submitted February 16, 1981;
    decided March 31, 1981
   Motion to amend the notice of appeal denied as unnecessary inasmuch as the appeal is deemed to have been taken from the Appellate Division order dated December 9, 1980 (see CPLR 5512, subd [a]; 5520, subd [c]).

On the court’s own motion appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Sara J. Ginsberg, Respondent, v Mark Ginsberg, Appellant.
    Decided March 31, 1981
   Appeal from the order of the Appellate Division dated November 10, 1980 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.

Appeal from the order of the Appellate Division dated January 12, 1981 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    North American Foreign Trading Corp. et al., Appellants, v Sidney Rosen, Respondent.
    Submitted February 23, 1981;
    decided March 31, 1981
   Motion dismissed insofar as it seeks leave to appeal from the portion of the order of the Appellate Division, which affirmed an order denying a motion to renew or re-argue, upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Twenty dollars costs and necessary reproduction disbursements to respondent.


text:
    The People of the State of New York, Respondent, v Eli Shommer, Appellant.
    Submitted March 16, 1981;
    decided March 31, 1981
   Motion to dismiss appeal granted and appeal dismissed upon the ground that no appeal lies from the order of the Appellate Division dismissing a motion for reargument or reconsideration of an order denying permission to appeal to the Court of Appeals.


text:
    In the Matter of Dolores Sorli, Appellant, v Arthur Levitt, as Comptroller of the State of New York, et al., Respondents.
    Submitted March 2,1981;
    decided March 31, 1981
   Motion for reargument of motion to dismiss appeal denied. Motion for extension of time within which to take appeal dismissed upon the ground that this court does not have power to grant the relief requested. [See 52 NY2d 897.]


text:
    In the Matter of L.B.R. Enterprises, Inc., Doing Business as Tuey’s, Appellant, v New York State Liquor Authority, Respondent.
    Argued February 13, 1981;
    decided April 2, 1981

      APPEARANCES OF COUNSEL

      John P. Bracken and Bryan E. Powers for appellant.

      Stephen D. Kolinsky and Warren B. Pesetsky for respondent.
   OPINION OF THE COURT

Memorandum:.

The judgment of the Appellate Division should be reversed and the determination of the State Liquor Authority-annulled.

It is now settled that a liquor licensee does not suffer or permit the licensed premises to become disorderly (Alcoholic Beverage Control Law, § 106, subd 6) simply by using force to eject an unruly patron (see Matter of Barchat Tavern v Liquor Auth. of State of N. Y., 50 NY2d 1019, 1020). Rather, a violation occurs only if unnecessary force is employed or other improper conduct occurs (id.). Thus, the finding of the Liquor Authority in this case that force was used, without more, is insufficient to sustain a violation.

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

Judgment reversed, with costs and the determination of the State Liquor Authority annulled in a memorandum.


text:
    Francine Heller et al., Appellants, v Encore of Hicksville, Inc., et al., Respondents, et al., Defendant. Encore of Hicksville, Inc., et al., Third-Party Plaintiff s-Appellants, v K. Kadin, Inc., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants. (And Other Actions.)
    Argued February 16, 1981;
    decided April 2, 1981

      APPEARANCES OF COUNSEL

      Malachy J. Duffy for appellants.

      William F. McNulty, Joseph Emmett Soffey and Anthony J. McNulty for respondents.

      Herbert J. Slater, Norman Bard and Sandra Krevitsky for K. Kadin, Inc., third-party defendant-respondent.

      Michael Majewski and Joseph D. Ahearn for Absorbent Cotton Co., third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for a review of the facts.

It cannot be said, as a matter of law, that defendant operator Ruggiero was not negligent in failing to warn the plaintiff of the dangers of smoking while she was undergoing the complicated hair treatment which he had applied. It was within the province of the jury to determine that he had failed to act upon a risk which was foreseeable to him. Moreover, it cannot be said, as a matter of law, that the plaintiff was contributorily negligent, for it was also within the province of the jury, taking into account the positions of the respective parties, to determine that the risk was unforeseeable to her.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur; Judges Jasen, Jones and Meyer dissent and vote to affirm on the ground that there was insufficient evidence in the record to sustain a finding either that there was any duty owed plaintiff or any breach thereof.

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


text:
    Howdy Jones Construction Co., Inc., Respondent, v Parklaw Realty, Inc., et al., Appellants, et al., Defendants.
    Argued February 20> 1981;
    decided April 2, 1981

      APPEARANCES OF COUNSEL

      Jeffrey R. Berke for appellant.

      Joseph Sluzar for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (76 AD2d 1018).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Robert Barnaby, as Administrator of the Estate of Karen E. Barnaby, Deceased, Appellant, v Clifford Rice et al., Respondents.
    Argued February 20, 1981;
    decided April 2, 1981

      APPEARANCES OF COUNSEL

      Lois McS. Webb and J. Byron O’Connell for appellant.

      John L. Bell for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by former Justice Louis M. Greenblott at the Appellate Division (75 AD2d 179).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Appellant, v Samuel White, Respondent.
    Argued February 13,1981;
    decided April 2, 1981

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Burton N. Lipshie and Jerrold Neugarten of counsel), for appellant. Gary R. Sunden for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that court for a review of the facts.

Following a jury trial, defendant was convicted of having robbed a grocery store. The Appellate Division reversed the conviction “on the law” because, in its view, the trial court had abused its discretion in permitting the jurors to view the scene of the crime after they had begun their deliberations. Since both parties had consented to the post-summation viewing, the Appellate Division declined to hold that the procedure was unauthorized per se (cf. CPL 270.50). Nevertheless, the court held that a retrial was required because a minor but material change had occurred in the layout of the grocery store since the time of the robbery. Because the conditions to which the jurors were exposed at the time of their viewing were not representative of the conditions that existed when the robbery took place, the Appellate Division concluded that defendant’s position had been seriously prejudiced.

Initially, we note that the Appellate Division based its reversal upon a properly preserved “question of law” and thus its order is appealable under CPL 450.90 (subd 2, par [a]). Although defendant ultimately consented to the jury’s visit to the grocery store, he had repeatedly objected to the trial court’s decision to permit the jurors to view the scene under conditions which differed materially from those that obtained at the time of the robbery. These protestations were sufficient to create a “question of law” within the meaning of CPL 470.05 (subd 2), notwithstanding defendant’s ultimate consent to the procedure (cf. People v Le Mieux, 51 NY2d 981).

It remains for us to determine, however, whether defendant’s final consent to the viewing procedure constituted an effective waiver of a right to relief on the basis of any objection he might otherwise have had to the manner in which the viewing was conducted. On the basis of the present record, we conclude that an actual waiver did occur. First, it must be stressed that defendant consented to the viewing after the trial court had ruled against him on his request to have the displays in the grocery store rearranged in order to duplicate the conditions that existed at the time of the robbery. And this consent was given even though defendant was at all times aware that the trial court would not have permitted the jury to visit the crime scene unless both he and the District Attorney agreed. The only reasonable inference to be drawn from these circumstances is that defendant honestly believed that a jury visit to the scene would be helpful to his case and that he was therefore willing to accept the risk of whatever prejudice might arise as a result of the changes in the layout of the grocery store. The Appellate Division should not have relieved defendant of this choice of trial strategy, absent a showing of some extenuating circumstance.

As a separate and independent ground for our holding, we note that defendant explicitly agreed to forego whatever right he may have had to appeal on the basis of the post-summation viewing procedure should the jury return an unfavorable verdict. This agreement, which was exacted by the District Attorney as a condition to his own consent, was itself a valid and binding waiver, and it should have been respected when the case was considered at the Appellate Division.

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

Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.

       It is noted that defendant’s postvisit request for limiting instructions and his related motion for a mistrial when his request was denied, in no way operated to vitiate his consent to the visit, since the physical conditions at the grocery store at the time the jury made its visit did not differ materially from those that had been anticipated at the time the consent was given.


text:
    Twin Village Construction Corporation et al., Respondents, v State of New York, Appellant.
    (Claim No. 51929.)
    Argued February 20, 1981;
    decided April 2, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Richard J. Dorsey and Shirley Adelson Siegel of counsel), for appellant.

      William J. Murphy for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the judgment of the Court of Claims dated October 25, 1972 reinstated.

Claimants sued the State of New York for alleged breaches of a contract for the reconstruction of a 2.3 mile section of road in Niagara County. The Court of Claims determined that all the causes of action asserted should be dismissed, and except with respect to the cause of action pertaining to claimants’ “borrow” operation, the Appellate Division agreed. It is only this cause of action which has been presented for our review (see CPLR 5601). We hold on this record that no basis for recovery has been established.

The basic contention of the claimants is that the State incurred a liability through its conceded failure to include certain borrow requirements on the earthwork summary the State provided for use in bid preparation. This contention is erroneous due to specific language on the earthwork summary itself which states: “Conditions and quantities as shown on the table * * * are not to be deemed or considered by the contractor as a warranty or a representation * * * of actual field conditions or quantities. Borrow may be necessary even when not shown on the excavation table. Borrow, if required, shall be paid for under the regular item of unclassified excavation, unless specifically provided for in the contract.”

Thus the contract documents made clear that claimants were not entitled to rely solely on the earthwork summary, and that if additional borrow was to be required, claimants were only entitled to be paid for it at the unclassified excavation rate under which rate payment to claimants actually was- made.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.


author: Meyer, J.

text:
    Joseph K. Fairley, Respondent, v Carol B. Fairley, Appellant.
    Submitted February 13,1981;
    decided April 2, 1981

      APPEARANCES OF COUNSEL

      Andrew F Capoccia for appellant.

      James W. Cooper and Ronald L. Newell for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 975).

Concur: Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg. Judge Meyer dissents and votes to reverse in an opinion in which Judges Jasen and Jones concur.

Meyer, J.

(dissenting). Because in my view the majority misconceives the meaning and purpose of the words “substantially performed” as used in subdivision (6) of section 170 of the Domestic Relations Law and misapplies the rules governing summary judgment, I respectfully dissent.

The legislative policy not to continue so-called “dead marriages” having been conditioned by the requirement; that “satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement”, summary judgment awarding a conversion divorce is impermissible unless plaintiff’s moving papers show by satisfactory proof that the predicate separation agreement has been substantially performed and defendant’s papers raise no triable issue concerning such performance. Here that cannot be said.

Much of defendant wife’s affidavit is irrelevant because it relates to matters not included in the agreement. So, however, is much of the Appellate Division’s reasoning, which relied heavily on the fact that defendant made no claim of noncompliance for two years and was apparently motivated by a desire to obtain economic adjustments. While either factor may go to defendant’s credibility, it is not the court’s function on a motion for summary judgment to assess credibility.

What is relevant is the obligations undertaken by plaintiff in the separation agreement, whether he has submitted satisfactory proof of substantial performance and whether defendant has presented countervailing proof raising an issue of fact. The obligations undertaken by plaintiff concern support for the son of the parties, the filing of joint tax returns “when practicable”, the right of defendant to first refusal if the marital residence were sold by plaintiff, and the maintenance of hospitalization insurance for defendant and the children.

The Appellate Division held that no issue of fact as to substantial compliance was shown because the' joint tax return obligation was only “when practicable”, the son had resided with and been supported by plaintiff until February, 1979, and evidence of medical insurance coverage had been produced. It made no mention of the first refusal option.

The evidence of insurance coverage was not in affidavit form, but was otherwise satisfactory and for purposes of the present appeal its irregularity in form can be overlooked. As to the tax return, defendant wife says plaintiff refused to file jointly or even to consider whether joint filing would be practical. Plaintiff responds that defendant never asked him to file a joint return and that her accountant told him that she would be better off filing separately. That exchange raises issues of fact concerning whether defendant asked, whether plaintiff refused and whether joint filing was practicable in any year when joint returns were not filed. It is not proof of substantial performance, however, for plaintiff’s response is one of confession and avoidance.

As to support of the son, the husband produced an affidavit of the son stating that he resided with his father until February, 1979. That, however, does not answer defendant’s claim that plaintiff has failed to support the son since February, 1979. While that date is after the date of the complaint, that fact alone does not necessarily exclude it from consideration in determining substantial performance, which speaks to the date the decree is awarded rather than the date the action is begun.

Concerning the first refusal option, defendant says flatly it was not honored. Plaintiff says that allegation is false and that in any event defendant has not shown that she could have purchased. The latter point is irrelevant, the issue being substantial performance by plaintiff. Nor do the cases cited by plaintiff sustain his argument that denial of a right of first refusal is not a failure substantially to perform. Sylofski v Sylofski (49 AD2d 971) was an action to set aside a separation agreement, not for a conversion divorce, and the memorandum decision shows that the property in question had never been sold. In Timmins v Timmins (50 AD2d 720) the court in upholding a judgment after trial awarding the plaintiff husband a conversion divorce called attention, in measuring whether he had substantially performed, to the fact that the defendant wife had failed to honor her agreement to sell certain real property and divide the proceeds with her husband.

There are, thus, issues of fact with respect to the filing of joint returns, whether plaintiff has contributed to the support of the son since the son returned to live with his mother, and whether plaintiff honored his obligation to give defendant first refusal before selling the marital residence. Whether any one of those deviations would by itself bar a conversion divorce is immaterial, for until those factual issues have been determined it cannot be said that plaintiff has proved his substantial performance of “all the terms and conditions of” the agreement.

The order of the Appellate Division, should, therefore, be reversed and plaintiff’s motion for summary judgment should be denied.

Order affirmed, etc.


text:
    In the Matter of Solita N. Herman, as Trustee, Appellant, v Vito J. Fossella et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents.
    Argued February 20, 1981;
    decided April 2, 1981

      APPEARANCES OF COUNSEL

      Harold Herman for appellant.

      Allen G. Schwartz, Corporation Counsel (Fay Leoussis, Angelo Aiosa and Carol Polis of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 502).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Blue Bird Coach Lines, Inc., Respondent, v City of Niagara Falls et al., Appellants, et al., Defendants.
    Argued February 19, 1981;
    decided April 2, 1981

      APPEARANCES OF COUNSEL

      Carl E. Mooradian, Corporation Counsel (Bernard Sax of counsel), for appellants.

      Patrick J. Berrigan for respondent.
   OPINION OF THE COURT

Memorandum.

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

Though overbreadth analysis is inapplicable to commercial speech (People v Mobil Oil Corp., 48 NY2d 192, 199), the provisions of the Codified Ordinances of the City of Niagara Falls in question are unconstitutional as applied to plaintiff. Section 315.01 violates the First Amendment because its licensing requirement is unrelated to time, place or manner of distribution (People v Remeny, 40 NY2d 527; Lovell v Griffin, 303 US 444). It also violates the Fourteenth Amendment because it discriminates against plaintiff, a nonresident. Section 731.16 seeks to regulate handbill distribution as to time and place, but its time limitation of 5 minutes in front of any building and 15 minutes on any block is unreasonably restrictive in relation to the objectives of the ordinance. Section 375.06 (subds [h], [i]) regulates manner of distribution, but its prohibition of signalling, arm waving, or calling to prospective handbill recipients is likewise unreasonably restrictive in relation to the declared objectives of the ordinance.

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

Order affirmed.


text:
    In the Matter of Robert Florsheim, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted March 23, 1981;
    decided April 2, 1981
   Motion insofar as it seeks leave to appeal from the Appellate Division order of October 2, 1980 denied; motion insofar as it seeks leave to appeal from the Appellate Division order of January 27,1981 dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Stefan Gasparik, Appellant.
    Submitted March 9, 1981;
    decided April 2, 1981
   Motion for reargument or, in the alternative, for amendment of this court’s opinion denied in each respect. [See 52 NY2d 309.]


text:
    In the Matter of Thomas Schiliro et al., Appellants, v Guy R. Mazza et al., Respondents.
    Argued April 2, 1981;
    decided April 3, 1981

      APPEARANCES OF COUNSEL

      James F. Cahill for appellants.

      Louis J. Castellano, Jr., for Guy R. Mazza, respondent.

      Edward G. McCabe, County Attorney, for Nassau County Board of Elections, respondent.
   OPINION OF THE COURT

Memorandum.

The order should be affirmed, without costs.

This appeal, here by permission of the Appellate Division, Second Department, from an order of that court which unanimously affirmed, without opinion, a judgment of the Supreme Court, Nassau County, raises no novel or complex issues of law. The rules of the Right to Life Party expressly permitted the State chairman to nominate the party’s candidate in this special election. These rules must be given effect by the courts (Election Law, § 6-120, subd 3; Democratic Party of U. S. v La Follette, 450 US 107; Matter of Kohler v McNab, 48 NY2d 625, 626). The certificate of nomination was executed by the State chairman in accordance with such rules and statutory law (Election Law, § 6-156, subd 1; § 6-120, subd 3; cf. Matter of McGovern [Olson], 291 NY 104). In short, none of the technical objections justify invalidating the nomination (Matter of Gresser v Cohen, 275 NY 440, 445).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Meyer taking no part.

Order affirmed, without costs, in a memorandum.


text:
    Elizabeth Gluck et al., Respondents, v Amsterdam Printing & Litho Corp. et al., Appellants.
    Argued February 20, 1981;
    decided April 7, 1981

      APPEARANCES OF COUNSEL

      Warner M. Bouck and Herbert P. Jacoby for appellants.

      Michael F. Bergan for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, on the appeal by the corporate defendant. The appeal by the individual defendants should be dismissed upon the ground that they were not aggrieved by the modification at the Appellate Division which dismissed the counterclaim asserted only on behalf of the corporate defendant. (See CPLR 5601, subd [a], par [iii].)

We agree with the court below that there is no basis upon which to imply as a condition to the parties’ contract an obligation on plaintiffs’ part to report taxable income received from the defendant corporation in any particular way — whether as ordinary income or as capital gain. (Cf. Rowe v Great Atlantic & Pacific Tea Co., 46 NY2d 62; Wood v Duff-Gordon, 222 NY 88.) We only note that, inasmuch as the corporate defendant failed to raise the issue, we do not address the propriety of the Appellate Division’s dismissal of defendants’ counterclaim even though that relief was not requested by plaintiffs in their motion for summary judgment.

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

On appeal by the corporate defendant: Order affirmed, with costs.

On appeal by the individual defendants: Appeal dismissed, without costs.


text:
    Raymonds Shamsee, Appellant, v Muddassir A. Shamsee, Defendant. United Nations Joint Staff Pension Fund et al., Respondents.
    Submitted March 26,1981;
    decided April 7, 1981

      APPEARANCES OF COUNSEL

      Bradley B. Davis for appellant.

      Edward R. Korman, United States Attorney (Marilyn Go and Miles M. Tepper of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice David T. Gibbons at the Appellate Division (74 AD2d 357).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    County of Rockland, Appellant, v Rockland County Unit of the Rockland County Local of the Civil Service Employees Association, Inc., Respondent. (And Another Proceeding.)
    Argued March 27, 1981;
    decided April 7, 1981

      APPEARANCES OF COUNSEL

      Marc L. Parris, County Attorney (Eric Ole Thor sen of counsel), for appellant.

      J. Martin Cornell for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (74 AD2d 812).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


author: Wachtler, J.

text:
    George E. Alford, as Administrator of the Estate of Donna J. Alford, Deceased, Appellant, v Timothy J. Sventek et al., Respondents.
    Argued February 17, 1981;
    decided April 7, 1981

      APPEARANCES OF COUNSEL

      David M. Civilette and Anthony J. Spann for appellant.

      John K. Plumb for respondents.
   OPINION OF THE COURT

Memorandum.

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

On November 10,1976 two vehicles, traveling in opposite directions, rounded a curve and collided, leading to the death of plaintiff’s intestate. Each of the vehicles came to rest in its own lane of traffic. The principal issue of negligence at the trial was which vehicle had crossed into the other’s lane. The jury returned a verdict of no cause of action. A subsequent poll of the jurors revealed that the vote had been five to one, with juror Dengler having voted consistently for plaintiff. Shortly thereafter this juror revealed in an affidavit and at a later hearing that he had visited the scene of the accident, had run tests on the curve, and had communicated his findings to the other jurors. The Trial Judge set aside the jury verdict and ordered a new trial upon the ground that the jury was subject to outside influences. The Appellate Division reversed and reinstated the verdict, finding no prejudice to the plaintiff on these facts. We find the order of the Appellate Division to be proper and, further, that the plaintiff has failed to demonstrate that he was prejudiced by the juror’s unauthorized viewing of the scene of the accident.

In general, a juror is not permitted to impeach his own verdict. However, an exception is made to the general rule when jurors are subject to an outside influence (see, generally, Richardson, Evidence [10th ed — Prince], § 407). Thus, where a juror makes an unauthorized viewing of the scene of a crime, it has been held that the verdict may be impeached (see People v Crimmins, 26 NY2d 319; People v De Lucia, 20 NY2d 275). No ironclad rule concerning juror misconduct has been formulated, and we have observed that “[i]n each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered” (People v Brown, 48 NY2d 388, 394). On the facts of the present case, prejudice is neither apparent nor existent because here the juror who viewed the scene of the accident was the only jurior voting for the party seeking to overturn the verdict.

Obviously, one of the primary dangers of unauthorized viewings by a juror is that evidence may be considered by the jury against a party who has no opportunity to confront that “witness” or to rebut his evidence. This danger did not, of course, manifest itself in the present case. The juror who had made the unauthorized visit did not communicate observations which could harm plaintiff’s case, but instead the juror communicated to the others his conclusion that the defendant must have been at fault. The plaintiff cannot now claim prejudice from this activity; and on the record before us, we can only conclude that the unauthorized visit may have served to influence the one juror who made that visit and voted in plaintiff’s favor, but this was irrelevant to the outcome of the case since the remaining five jurors reached an opposite result. Although we have held that an unauthorized visit to the scene of a crime is inherently prejudicial in a criminal matter (see People v Crimmins, supra; People v De Lucia, supra), we decline to hold that such a visit would be inherently prejudicial in a civil matter.

Finally, we emphasize that jurors should continue to be admonished by the Trial Judge that they are not to view the scene of an accident or crime prior to rendering their verdict. Although the unauthorized action of one juror in this case did not lead to such prejudice as to require a new trial, it goes without saying that the courts must be vigilant in preventing any activity which might provide a potential for prejudice.

Wachtler, J.

(dissenting). I would vote to reverse and hold as a matter of law that the misconduct of the juror in this case requires that the verdict be set aside.

We are presented here with the affidavit and testimony of the jury foreman acknowledging that without authorization he visited the scene of the automobile accident and conducted a “test” designed to “get the sensation of what may have happened on the morning of the accident”. The test was conducted by the juror driving his passenger automobile, which was significantly different from defendant’s 4,300 pound pick-up truck, around the curve on a clear afternoon and on a dry road surface significantly different from the icy surface existing on the day of the fatal crash.

The principal factual question in the trial was whether the plaintiff’s car edged into the defendant’s lane, thus causing defendant to lose control in an avoidancy maneuver, or whether defendant’s excessive speed caused his truck to drift into the plaintiff’s path. Expert testimony was presented concerning the radius of the turn, critical speed, centrifugal force and the coefficient of friction. In addition, in the confines of the jury room and away from the safeguards of cross-examination, the jury was exposed to an unsworn witness, the jury foreman no less, who related spurious evidence concerning what apparently went to the heart of the case.

Despite the majority’s conclusion that because the visiting juror voted for the losing party the information could not have been prejudicial, the fact remains that we simply do not know precisely how or whether the jury used the information provided. In this situation the misconduct is presumed to be harmful (Adams Laundry Mach. Co. v Prunier, 74 Misc 529, 531, affd 153 App Div 930, affd 214 NY 637) and I find no sufficient basis in this record for the conclusion that the presumption was rebutted.

Few principles in our jurisprudence are more inviolate than that due process requires a trial to be based only on the evidence produced within the procedural safeguards of the court. To be sure, no trial can be perfect, but we have cloaked our trials with specific rules designed to preserve the integrity of our judicial process. Here a most basic rule was violated and the Trial Judge was correct in his deter-initiation that the interests of justice required that a mistrial be declared.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Fuchsberg concur in memorandum; Judge Wachtler dissents and votes to reverse in an opinion in which Judge Meyer concurs.

Order affirmed.