author: Titone, J.

text:
    The People of the State of New York, Appellant, v Patrick M. Duffy, Respondent.
    Argued March 24, 1992;
    decided May 12, 1992

      POINTS OF COUNSEL

      Richard J. Shay, District Attorney (Valerie Friedlander of counsel), for appellant.
    The court below erred as a matter of law in determining that the existence of Penal Law § 125.15 (3), which proscribes intentionally causing a suicide, precludes conviction for recklessly causing a suicide under Penal Law § 125.15 (1). (People v Valenza, 60 NY2d 363; People v Eboli, 34 NY2d 281; People v Galle, 77 NY2d 953; Matter of Anthony M., 63 NY2d 270; People v Cruciani, 36 NY2d 304; People v Kibbe, 35 NY2d 407; People v Vicaretti, 54 AD2d 236; Matter of Eichner [Fox] 73 AD2d 431, mod sub nom. Matter of Eichner v Dillon, 52 NY2d 363; People v Beard, 74 AD2d 926.)

      John A. Orando and Patrick J. Haber for respondent.
    The court below correctly held that the existence of intentionally causing a suicide under Penal Law § 125.15 (3) precludes conviction for recklessly causing a suicide under Penal Law § 125.15 (1). (People v Dethloff, 283 NY 309; People v Martell, 16 NY2d 245; Lederman v McLean Trucking Co., 41 AD2d 5;
      People v Valenza, 60 NY2d 363; People v Eboli, 34 NY2d 281; People v Vicaretti, 54 AD2d 236; People v Ramirez, 76 AD2d 115; People v Scarborough, 49 NY2d 364; People v Discala, 45 NY2d 38; People v Galle, 77 NY2d 953.)
   OPINION OF THE COURT

Titone, J.

This appeal calls upon us to address two related questions: whether a person may be convicted of second degree manslaughter for engaging in reckless conduct which results in another person’s committing suicide and, if so, whether the conduct of the defendant in this case was a sufficiently direct cause of the victim’s death to support his conviction. For the reasons that follow, we conclude that both these questions should be answered in the affirmative.

I

According to the evidence adduced below, Jason Schuhle — a 17-year-old youth — met defendant on a street in the Village of McGraw, New York, during the early morning hours of August 6, 1988. Schuhle — who, at the time, was extremely distraught over having recently broken-up with his girlfriend— immediately imparted to defendant his desire to kill himself. At defendant’s invitation, Schuhle then accompanied him back to defendant’s apartment. There, for approximately the next half hour or so, Schuhle — who had been drinking heavily —continued to express suicidal thoughts and repeatedly importuned defendant to shoot him. In response to these entreaties, defendant provided Schuhle with some more alcohol and challenged him several times to jump headfirst off the porch of his second-story apartment. Finally, defendant — who later explained to the police that he was "tired” of hearing Schuhle complain about wanting to die — told Schuhle that he had a gun which he could use to kill himself. Defendant then retrieved a British .303 caliber Enfield rifle from his gun cabinet, and handed it to Schuhle, along with a number of bullets. He then urged Schuhle to "put the gun in his mouth and blow his head off.” Moments later, Schuhle loaded the rifle, pointed the barrel at himself and pulled the trigger. He later died as a result of the massive injuries he suffered.

Defendant was thereafter indicted for two counts of manslaughter in the second degree. The first count alleged that he had intentionally caused or aided Schuhle in committing suicide (see, Penal Law § 125.15 [3]), and the second alleged that he had recklessly caused Schuhle’s death (see, Penal Law § 125.15 [1]). After a jury trial, defendant was acquitted of the first count but convicted of the second.

On appeal, however, the Appellate Division reversed and dismissed the indictment. The court — with one Justice concurring in result only — concluded that defendant’s conviction for reckless manslaughter (see, Penal Law § 125.15 [1]) could not be sustained because, in its view, Penal Law § 125.15, when read as a whole, clearly evinced a legislative intent "that a person be found guilty of manslaughter in the second degree for causing or aiding a suicide only when he or she acts intentionally” (171 AD2d 900, 901 [emphasis added]; see, Penal Law § 125.15 [3]). A Judge of this Court subsequently granted the People leave to appeal. We now reverse.

II

At the outset, we note that the conduct with which defendant was charged clearly fell within the scope of section 125.15 (l)’s proscription against recklessly causing the death of another person. As the People aptly observe, a person who, knowing that another is contemplating immediate suicide, deliberately prods that person to go forward and furnishes the means of bringing about death may certainly be said to have "consciously disregarded] a substantial and unjustifiable risk” that his actions would result in the death of that person (see, Penal Law § 15.05 [3]; § 125.15 [1]). Accordingly, unless the Appellate Division correctly concluded that, despite the apparent applicability of section 125.15 (1), it was nevertheless specifically contemplated by the Legislature that second degree manslaughter prosecutions involving suicide-related homicides would be maintainable solely pursuant to section 125.15 (3), defendant’s prosecution for reckless manslaughter cannot be said to have been improper.

As a general rule, a statutory prohibition against a particular type of conduct will not be deemed to constitute the exclusive vehicle for prosecuting that conduct unless the Legislature clearly intended such a result (see, People v Valenza, 60 NY2d 363, 371-372). Defendant argues that the Legislature evinced just such an intention here when it specifically proscribed only "intentionally caus[ing] or aid[ing] another person to commit suicide” in section 125.15 (3). We disagree.

Nothing in the language or the legislative history of section 125.15 (3) suggests that the Legislature intended to foreclose second degree manslaughter prosecutions for recklessly causing a suicide. Rather, by all indications, section 125.15 (3) was simply meant to serve as a means of prosecuting those who, while having intentionally caused or aided another person to kill him- or herself, were not, in the Legislature’s judgment, as culpable as intentional murderers (compare, Penal Law § 125.15 [3] [providing that "intentionally caus(ing) or aid(ing) another person to commit suicide” constitutes second degree manslaughter], with Penal Law § 125.25 [1] [b] [providing that it is an affirmative defense to a prosecution for second degree murder that "(t)he defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide”]; see also, Staff Notes of Commn on Revision of Penal Law and Grim Code, Proposed NY Penal Law, McKinney’s Cons Laws of NY, Spec Pamph, at 339 [1964]; Denzer and McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 125.15, at 226-227 [1967]).

Nor can we discern any reason why the Legislature would have wanted to limit criminal liability for causing a suicide to those instances where the accused acted intentionally. An individual who — like defendant — consciously disregards a substantial and unjustifiable risk that his actions will lead to another person’s killing him- or herself and thereby causes that person’s death may be just as culpable as one who intentionally causes or aids another to commit suicide (see, Staff Notes, op. cit., at 339 [noting that section 125.15 (3)’s proscription against intentionally causing or aiding a suicide applies even where the defendant is motivated by "sympathetic” concerns, such as the desire to relieve a terminally ill person from the agony of a painful disease]). In the absence of a clear indication to the contrary, we are simply unwilling to ascribe to the Legislature an intent to criminalize the latter conduct while at the same time subjecting the former to no penal sanction at all.

Ill

Having concluded that a person may be convicted of second degree manslaughter for having engaged in reckless conduct which results in another person’s committing suicide (see, Penal Law § 125.15 [1]), we now turn to the question whether defendant’s conduct here was a "sufficiently direct cause” of Schuhle’s death to subject him to criminal liability (see generally, Brenner, Undue Influence in the Criminal Law: A Proposed Analysis of the Criminal Offense of "Causing Suicide”, 47 Albany L Rev 62 [1982]). Defendant, stressing the fact that it was Schuhle — not he — who loaded the rifle and pulled the trigger, urges us to answer this question in the negative. We find defendant’s argument to be unpersuasive.

Generally speaking, a person will not be held criminally accountable for engaging in conduct which results in another person’s death unless it can be demonstrated that his actions were "an actual contributory cause of death, in the sense that they 'forged a link in the chain of causes which actually brought about the death’ ” (Matter of Anthony M., 63 NY2d 270, 280, quoting People v Stewart, 40 NY2d 692, 697). The proof adduced below, when viewed in a light most favorable to the People (see, People v Bleakley, 69 NY2d 490, 495; People v Contes, 60 NY2d 620, 621), indicates that defendant gave Schuhle a rifle and a number of rounds of ammunition knowing full well that Schuhle had been drinking heavily and was in an extremely depressed and suicidal state, and that he then began taunting Schuhle to "put the gun in his mouth and blow his head off.” In light of this evidence, we must disagree with defendant that Schuhle’s act of loading the rifle and using it to kill himself constituted an intervening cause which —as a matter of law — relieved defendant of criminal responsibility. The jury could rationally have concluded that the risk of Schuhle’s taking these actions was something which defendant should have, under the circumstances, plainly foreseen (People v Galle, 77 NY2d 953, 955, quoting People v Kibbe, 35 NY2d 407, 412; see, Matter of Anthony M., supra, at 280-281; People v Warner-Lambert Co., 51 NY2d 295, 307; People v Stewart, supra, at 697; People v Cruciani, 36 NY2d 304, 305-306; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 497-498 [1987]; cf., People v Pinckney, 38 AD2d 217, affd 32 NY2d 749). There is therefore no basis, on this Court’s review, to disturb the jury’s verdict.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

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

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


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    The People of the State of New York ex rel. Michael A. Hardy, on Behalf of Gerald Miller, Appellant, v Allyn R. Sielaff, as Commissioner of the Department of Correction of the City of New York, et al., Respondents.
    Argued April 29, 1992;
    decided June 4, 1992

      POINTS OF COUNSEL

      Michael A. Hardy and Harry Kresky for appellant.
    I. CPL 500.10 (17) (b), requiring the posting of real property with a value of twice the amount of the designated bail, is unconstitutional as a violation of due process and equal protection. (People v Burton, 150 Misc 2d 214; Plyler v Doe, 457 US 202.) II. The bail requirement of $500,000 is arbitrary, capricious, an abuse of discretion and violative of the State and Federal constitutional right to not be subjected to an excessive bail. (People ex rel. Mordkofsky v Stancari, 93 AD2d 826; People ex rel. Barnes v Warden, 47 AD2d 722; United States v Rose, 791 F2d 1477; Stack v Boyle, 342 US 1; Dudley v United States, 242 F2d 656.)

      Richard A. Brown, District Attorney (Robin A. Forshaw and Barbara D. Underwood of counsel), respondent pro se.

    I. The double equity requirement for the posting of real estate as security for a bail bond is constitutional. (Loving v Virginia, 388 US 1; Castaneda v Partida, 430 US 482; Nyquist v Mauclet, 432 US 1; Dunn v Blumstein, 405 US 330; Shapiro v Thompson, 394 US 618; Skinner v Oklahoma, 316 US 535; Carey v Brown, 447 US 455; Golden v Clark, 76 NY2d 618; Matter of Quinton A., 49 NY2d 328; Lighthouse Shores v Town of Islip, 41 NY2d 7.) II. Defendant’s bail is reasonable. (People ex rel. Rosenthal v Wolfson, 48 NY2d 230; People ex rel. Klein v Krueger, 25 NY2d 497; People ex rel. Parker v Hasenauer, 62 NY2d 777.)
   OPINION OF THE COURT

Chief Judge Wachtler.

At issue in this habeas corpus proceeding is the validity of the distinction drawn in CPL 500.10 (17) between personal property and real property for the purpose of securing a bail bond. CPL 500.10 (17) (a) provides that nonexempt personal property may be used as security if its net value is equal to or greater than the total amount of the undertaking. CPL 500.10 (17) (b), on the other hand, requires that, for real property to be used as security, its net value must be at least twice the total amount of the undertaking.

In the underlying criminal proceeding, the defendant sought to post a bail bond secured by several parcels of real property, the aggregate value of which, he acknowledged, was insufficient to satisfy the double equity requirement of CPL 500.10 (17) (b). He contended, however, that the requirement was unconstitutional. After Supreme Court rejected his arguments, he commenced this habeas corpus proceeding in the Appellate Division, Second Department, renewing his constitutional arguments and seeking a reduction in bail. The Appellate Division dismissed the proceeding, without opinion.

Relator relies primarily upon People v Burton (150 Misc 2d 214), which held that the double equity requirement of CPL 500.10 (17) (b) was irrational and therefore unconstitutional. In Burton, the court first rejected the defendant’s contention that, for purposes of equal protection analysis, the distinction between personal property and real property should be subjected to strict scrutiny, concluding that the distinction implicated neither a suspect classification nor a fundamental right (150 Misc 2d, at 221-222). After tracing the history of the double equity requirement, however, the court concluded that the evils which prompted its enactment — the use of undesirable properties as security and abusive bondsmen who used the same property as security for bail several times — are no longer significant problems and that the retention of the requirement in the face of these changed circumstances was irrational (id,., at 225-226).

We conclude, however, that the double equity requirement is rationally based. The legislative history recounted by the court in People v Burton reveals that the requirement, as might be expected, was designed to ensure that the real property would provide adequate security for the obligation (id., at 219). While the concern may have been prompted by the abuses of certain commercial bondsmen, it does not follow that the Legislature’s success in curtailing such abusive practices has negated the State’s legitimate interest in ensuring that the collateral posted for a secured bond is adequate. For these purposes, treating personal property and real property differently is rational.

To a greater extent than personal property, real property is subject to title problems and other hidden defects that can affect value, but which cannot readily be ascertained without expensive and time-consuming procedures. A court, in the context of entertaining a bail application, cannot be expected to employ the careful appraisal and underwriting techniques of a commercial lender. The double equity requirement provides the court with the ability to accept real property as security without being overly concerned about such potential defects.

In addition, the costs and difficulties of a foreclosure justify granting real property less than full value as collateral. Even commercial lenders rarely accept real property as collateral for its full market value, though they have the advantage of dealing with customers of their own choosing who, according to established underwriting standards, pose an acceptably low risk of default. Furthermore, up to $10,000 in value of real property owned and occupied as a principal residence may be exempt from execution (see, CPLR 5206). Where, as here, several parcels with different owners are offered as security, the combined exemptions could seriously impair the value of the property as collateral. The double equity requirement of CPL 500.10 (17) (b) helps to ensure that the real property offered as security will have sufficient nonexempt value (cf., CPLR 5205 [exempting certain personal property from execution]; CPL 500.10 [17] [a] [precluding the use of exempt personal property as security for a bail bond]).

Given just these few factors — and there are undoubtedly others — the need is evident for real property to have a value greater than the amount that it is securing. In the bail bond context, at least, the double equity requirement is a reasonable means of ensuring that the value will be adequate.

We also reject relator’s argument that strict equal protection scrutiny is applicable because minorities are disproportionately affected by the bail statutes. CPL 500.10 (17) contains, on its face, no suspect classification. The only distinction drawn in the statute is between real property and personal property. Relator has made ho showing that the double equity requirement, which is applicable only to those who seek to use real property as security, has a disproportionate impact on racial or ethnic minorities or that the Legislature harbored any discriminatory intent (see, Washington v Davis, 426 US 229, 242).

Finally, relator’s alternative argument that his bail should be reduced must also be rejected. Supreme Court’s determination in fixing bail was "an exercise of discretion resting on a rational basis and thus beyond correction in habeas corpus” (People ex rel. Parker v Hasenauer, 62 NY2d 777, 779).

Accordingly, the judgment of the Appellate Division should be affirmed, without costs.

Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Judgment affirmed, without costs.


author: Kaye, J.

text:
    Suzanne Lavanant et al., Respondents, v General Accident Insurance Company of America, Appellant, and Chubb Group of Insurance Companies et al., Respondents.
    Argued April 28, 1992;
    decided June 4, 1992

      POINTS OF COUNSEL

      Terrence P. O’Reilly for appellant.
    I. Emotional distress without physical contact or physical injury is not included in the definition of bodily injury and, therefore, there was no coverage under appellant’s policy. (Brustein v New Amsterdam Cas. Co., 255 NY 137; Floyd v Consolidated Indem. & Ins. Co., 237 App Div 190; Bonilla v Reeves, 49 Misc 2d 273; Gaouette v AEtna Life Ins. Co., 253 App Div 388; Gallagher v Fidelity & Cas. Co., 163 App Div 556, 221 NY 664; Riddle v McFadden, 201 NY 215; Morisi v Motor Vehicle Acc. & Indemnification Corp., 19 AD2d 727; County of Chemung v Hartford Cas. Ins. Co., 130 Misc 2d 648; Rosman v Trans World Airlines, 34 NY2d 385; Battalla v State of New York, 10 NY2d 237.) II. It was error to award plaintiffs any attorneys’ fees. (Matter of Tillman, 259 NY 133; Bowman v Tollman, 41 NY 619; Gross v Moore, 14 App Div 353; Schlesinger v Dunne, 36 Misc 529; Randall v Packard, 142 NY 47.)

      Irwin Brownstein and Richard E. Hershenson for Suzanne Lavanant and another, respondents.
    I. The courts below were clearly correct in holding that General Accident’s policy insuring against bodily injury, sickness or disease required that General Accident indemnify its insureds, respondents herein, for the full amount of the jury verdict and judgment against the insureds for negligence. (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229; Miller v Continental Ins. Co., 40 NY2d 675; 67 Wall St. Co. v Franklin Natl. Bank, 37 NY2d 245; Zurich Ins. Co. v Martinez, 24 Misc 2d 437, 14 AD2d 754; Passaro v Metropolitan Prop. & Liab. Ins. Co., 128 Misc 2d 21, 124 AD2d 647; Kennedy v McKesson Co., 58 NY2d 500; Matter of Wood v Laidlaw Tr., 77 NY2d 79; County of Chemung v Hartford Cas. Ins. Co., 130 Misc 2d 648; Brustein v New Amsterdam Cas. Co., 255 NY 137.) II. The courts below were correct in requiring General Accident to indemnify respondents for their attorneys’ fees. (Prashker v United States Guar. Co., 1 NY2d 584.)

      John C. Young for Federal Insurance Company, respondent.
    I. The General Accident policy covers the Lavanants as to the judgment in the Belliti action. (Mesmer & Sons Dairy v Hartford Ins. Group, 155 AD2d 955; County of Chemung v Hartford Cas. Ins. Co., 130 Misc 2d 648; Sperling v Great Am. Indem. Co., 7 NY2d 442; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229.) II. Having covered the “bodily injury” claims in the Belliti action and having abandoned the Lavanants to their own devices, General Accident is obligated to indemnify them fully for the Belliti judgment. (Fitzpatrick v American Honda Motor Co., 78 NY2d 61; Cardinal v State of New York, 304 NY 400; United States Fid. & Guar. Co. v Copfer, 48 NY2d 871.) III. General Accident’s contract terms, not Federal’s, determine the scope of its coverage obligation. (Newburger v American Sur. Co., 242 NY 134; Higgs v de Maziroff, 263 NY 473.) IV. The cases construing the phrase "bodily injury” on which General Accident relies do not support its arguments for reversal of the order of the court below dated October 30, 1990. (Brustein v New Amsterdam Cas. Co., 255 NY 137; Floyd v Consolidated Indem. & Ins. Co., 237 App Div 190; Rosman v Trans World Airlines, 34 NY2d 385; Eastern Airlines v Floyd, 499 US —, 111 S Ct 1489.)

      Daniel E. Troy, Thomas W. Brunner and Stephen P. Keim, of the District of Columbia Bar, admitted pro hoc vice, for American Insurance Association and another, amici curiae.

    The policy does not provide coverage for emotional distress without physical contact or physical injury. (Government Employees Ins. Co. v Kliger, 42 NY2d 863; Cetta v Robinson, 145 AD2d 820; Johnson v Travelers Ins. Co., 269 NY 401; Breed v Insurance Co., 46 NY2d 351; Rosman v Trans World Airlines, 34 NY2d 385; Theatre Guild Prods. v Insurance Corp., 25 AD2d 109, 19 NY2d 656; Mesmer & Sons Dairy v Hartford Ins. Group, 155 AD2d 955; Brustein v New Amsterdam Cas. Co., 255 NY 137; Floyd v Consolidated Indem. & Ins. Co., 237 App Div 190, 897; Gaouette v AEtna Life Ins. Co., 253 App Div 388.)
   OPINION OF THE COURT

Kaye, J.

This appeal by an insurer presents an issue that has divided courts in other jurisdictions but remains open here: whether coverage for "bodily injury” includes emotional distress resulting from the insured’s negligent conduct, where no physical injury or contact is involved. We conclude that in the circumstances presented, mental injury alone is covered.

I.

Plaintiffs are the owner and managing agent of a four-story brownstone located on East 24th Street in Manhattan. The property was insured under two policies. The first, a comprehensive general liability policy issued by defendant General Accident Insurance Company of America, provided coverage of up to $500,000 for each occurrence. The second, an umbrella policy issued by defendant Federal Insurance Company, provided excess liability coverage of $10,000,000 over General Accident’s occurrence limit.

General Accident’s policy — the one directly in issue in this case — provided coverage for bodily injury and property damage. "Bodily injury” was defined as "bodily injury, sickness or disease.”

In 1984, during renovation of the premises, a portion of the ceiling collapsed in the apartment rented by Emilio Belliti and Victor Rizika. In a single action, they sought damages from plaintiffs for personal injury and property damage, alleging negligence, intentional infliction of emotional distress, assault, and breach of warranty of habitability. The complaint did not allege any physical injury or contact.

Upon receiving notification of the action, General Accident undertook the defense, reserving its rights on certain questions of coverage. Federal took no action until 1988, when it acknowledged the negligence cause of action and disclaimed liability as to the remaining claims.

Concerned with assigned counsel’s handling of the case, plaintiffs substituted their own counsel. On the day of the substitution, and over plaintiffs’ objection, General Accident settled the property damage claim under the first cause of action for $50,000. The second and third causes of action— based on intentional conduct — were dismissed by the trial court prior to submission to the jury. In 1988, the jury awarded the tenants $400,000 for personal injuries — including emotional distress — on their negligence claim and $5,226 on the breach of warranty claim; a punitive damage award of $2,500,000 was set aside by the trial court. Judgment was entered in the amount of $410,738, which was affirmed on appeal (Belliti v Lavanant, 151 AD2d 1051, lv denied 75 NY2d 702).

While the tenants’ appeal was pending, plaintiffs commenced this action against General Accident seeking indemnity for the judgment and attorneys’ fees. In response to plaintiffs’ motion for partial summary judgment, General Accident argued both that the damages award was based on intentional conduct and thus outside the scope of coverage, and that there was no coverage for emotional distress in the absence of physical injury or contact. Supreme Court granted plaintiffs partial summary judgment, to the extent of requiring General Accident to indemnify them for the judgment in the tenants’ action, plus interest, attorneys’ fees and costs incurred in defending that action; it severed plaintiffs’ claims for punitive damages and attorneys’ fees incurred in the present action, which remain pending in the trial court. The court based its holding on the intentional conduct issue and did not reach the question of coverage for purely mental injury.

While noting that the issue appeared to present a case of first impression in New York, the Appellate Division rejected General Accident’s assertion that coverage would not attach without physical injury or contact, and held that "bodily injury” includes "the emotional and psychological effects of incidents that are otherwise covered by the policy.” (164 AD2d 73, 79.) In a separate order, the Appellate Division affirmed Supreme Court’s award of $104,624 for attorneys’ fees and costs incurred by plaintiffs in defending the tenants’ action.

General Accident appeals both determinations, arguing that emotional distress without physical injury or contact does not constitute "bodily injury” under the terms of its policy, and that Supreme Court erred in calculating attorneys’ fees. Both the order affirming the attorneys’ fees award and the prior nonfinal order granting partial summary judgment are reviewable by this Court (see, CPLR 5501 [a]), but on the merits the insurer’s arguments must be rejected.

II.

General Accident first urges that the issue of coverage for pure emotional distress is controlled by prior decisions of this Court, pointing to Brustein v New Amsterdam Cas. Co. (255 NY 137) and Rosman v Trans World Airlines (34 NY2d 385). Neither case governs the issue before us.

Brustein and its progeny concern loss of services claims by spouses of injured persons (see, e.g., Floyd v Consolidated Indem. & Ins. Co., 237 App Div 190). In Brustein, the Court distinguished between the broad term "personal injury,” which encompasses loss of services claims, and the narrower term "bodily injury,” which does not. General Accident argues that emotional injury likewise falls within the broad category of personal injury but cannot be considered bodily injury.

Mere statement of those cases exposes the distinction. Loss of services claims are derivative; there are no allegations that plaintiff suffered any direct injury — physical or mental. The insurer’s obligation to compensate for bodily injury does not extend to derivative claims for loss of services which occurred as a result of physical injuries suffered by a third person (see, County of Chemung v Hartford Cas. Ins. Co., 130 Misc 2d 648, 650). The insurance policy in Brustein, moreover, covered "bodily injuries or death.” That policy lacked any definition of "bodily injury” comparable to the one in the present case, which adds the terms "sickness and disease.”

Nor is Rosman controlling. In Rosman this Court considered whether the phrase "death or wounding * * * or any other bodily injury” contained in the Warsaw Convention created liability for psychic trauma not resulting from impact (34 NY2d, at 388). Analysis began with the fact the Warsaw Convention was a major international agreement signed by more than 100 nations that had as a primary objective the limitation of liability for air carriers in case of accident (34 NY2d, at 390). As a treaty, the Convention was to be given a liberal construction in order to effectuate its purposes (34 NY2d, at 395). It was against this backdrop that the Court held the term "bodily injury” as used in the treaty excluded mental injury without bodily manifestations (34 NY2d, at 397).

The present case is different in several important respects. First, we are interpreting not an international treaty aimed at limiting liability, but a private contract of insurance. Second, the clause at issue in Rosman did not include the terms "sickness” and "disease,” but spoke of "wounding” and bodily injury, plainly contemplating something physical.

Pertinent also is the fact that the Warsaw Convention was drafted more than 60 years ago, when liability for emotional distress was more circumscribed (see, Eastern Airlines v Floyd, 499 US —, —, 111 S Ct 1489, 1498 [noting that many jurisdictions did not recognize recovery for mental injury at the time of the Convention]). New York itself did not recognize recovery for purely mental injuries until 1961 (see, Battalla v State of New York, 10 NY2d 237; see also, Eastern Airlines v Floyd, 499 US, at —, n 10, 111 S Ct, at 1498, n 10, supra). In light of changed attitudes toward compensation for mental injuries in the six decades since the Warsaw Convention, a presumed intent to exclude such damages can have little relevance in interpreting the insurance contract in issue.

We therefore agree with the Appellate Division that the question remains an open one in this State.

III.

The principles governing interpretation of insurance contracts are well settled. Unambiguous provisions of a policy are given their plain and ordinary meaning. But where there is ambiguity as to the existence of coverage, doubt must be resolved in favor of the insured and against the insurer (see, United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232; State of New York v Home Indem. Co., 66 NY2d 669, 671).

The legal question whether the term "bodily injury” is ambiguous has been extensively litigated in other jurisdictions and has engendered lively debate throughout the country. Some courts have found the term ambiguous (see, e.g., Lees v Smith, 363 So 2d 974, 980 [La App]; NFS Corp. v Insurance Co., 213 NJ Super 547, 517 A2d 1211), while others have found no ambiguity (see, e.g., Allstate Ins. Co. v Diamant, 401 Mass 654, 658, 518 NE2d 1154; Farm Bur. Mut. Ins. Co. v Hoag 136 Mich App 326, 356 NW2d 630).

We conclude that the key term "bodily injury,” as used in the policy before us, is ambiguous.

On its face, the policy purchased by plaintiff property owners is one of comprehensive general liability insurance. It specified as "coverages” "bodily injury liability and property damage liability,” suggesting one covered category of injury to the person and a second covered category of injury to property. There is at least an ambiguity in this respect. The ambiguity is heightened, not eliminated, by the policy’s explicit definition of "bodily injury” as "bodily injury, sickness or disease.” The categories "sickness” and "disease” in the insurer’s definition not only enlarge the term "bodily injury” but also, to the average reader, may include mental as well as physical sickness and disease.

We decline General Accident’s invitation to rewrite the contract to add "bodily sickness” and "bodily disease,” and a requirement of prior physical contact for compensable mental injury. General Accident could itself have specified such limitations in drafting its policy, but it did not do so.

We note that the definition proposed by plaintiffs — one that includes coverage for purely emotional distress — is consistent with recent case law in this State allowing recovery for such injuries in a variety of contexts (see, e.g, Matter of Wood v Laidlaw Tr., 77 NY2d 79; see also, Kennedy v McKesson Co., 58 NY2d 500, 504). In upholding such claims, we have recognized that emotional trauma may be as disabling as physical injury, and that whether a person suffers one form of injury or the other may be a fortuity determined solely by the particular vulnerability of an individual. In a given situation "one person may be susceptible to a heart attack while another may suffer a depressive reaction.” (Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505, 510; see also, NPS Corp. v Insurance Co., 213 NJ Super, at 552-553, 517 A2d, at 1214, supra.)

This development of the law is relevant to the present controversy. Recognition of the compensability of purely mental injuries for claimants brings with it increased exposure to liability for insureds. This underscores that the reasonable expectation of property owners purchasing a comprehensive policy such as plaintiffs’ would be that their liability for purely mental injury would fall within their insurance coverage (see, Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361).

Thus, we conclude that "bodily injury” in General Accident’s policy is ambiguous and that, resolving the doubt in favor of insured and against the insurer, General Accident is obligated to indemnify plaintiffs.

IV.

Finally, we reject General Accident’s argument that the award of attorneys’ fees was improper. This argument is based on factual assertions considered and rejected by Supreme Court. In affirming, the Appellate Division held that the award represented reasonable attorneys’ fees and costs incurred by plaintiffs in defending the tenants’ action. There is no basis in the record for overturning this determination (see, Matter of Freeman, 34 NY2d 1).

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

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

Order affirmed, with costs.

      . Similar relief was sought from Federal. In that plaintiffs’ net loss fell within the primary policy limits, Supreme Court granted Federal’s motion to dismiss the complaint, and the Appellate Division affirmed. While Federal appears on the present appeal as "defendant-respondent,” the result we reach makes it unnecessary for us to consider Federal’s alternative arguments for affirmance.

      . The Appellate Division affirmed Supreme Court’s ruling that the verdict in the tenants’ action was based on negligent, rather than intentional, conduct and General Accident does not press that issue here.


text:
    In the Matter of Jahron S., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued April 30, 1992;
    decided June 9, 1992

      POINTS OF COUNSEL

      Marcia Egger and Lenore Gittis for appellant.
    The Family Court erred in refusing to dismiss the delinquency petition as legally insufficient where the petition failed to make out a prima facie case of drug possession due to the absence of a laboratory report establishing that the substance seized from appellant was cocaine in crack form. (Matter of David T., 75 NY2d 927; People v Alejandro, 70 NY2d 133; Matter of Detrece H., 78 NY2d 107; People v Pelchat, 62 NY2d 97; People v Howell, 3 AD2d 153, 3 NY2d 672; People v Potwora, 44 AD2d 207; People v Sierra, 45 NY2d 56; People v Flores, 138 AD2d 512; People v Harris, 130 AD2d 939.)

      O. Peter Sherwood, Corporation Counsel (John Hogrogian and Pamela Seider Dolgow of counsel), for respondent.
    The Family Court correctly denied appellant’s motion to dismiss the petition as facially insufficient. The supporting deposition of the police officer contains a firsthand statement, based upon his expertise and sense impressions, that the substance seized from appellant was crack cocaine. That statement is not hearsay. The petition, accordingly, satisfies the requirements of Family Court Act § 311.2 (3). (Matter of David T., 75 NY2d 927; People v Settles, 46 NY2d 154; People v Huertas, 75 NY2d 487; People v Brensic, 70 NY2d 9; People v Kenny, 30 NY2d 154; People v Dumas, 68 NY2d 729; People v Christopher, 161 AD2d 896, 76 NY2d 786; People v Mullen, 152 AD2d 260; People v Jewsbury, 115 AD2d 341; People v Lynch, 85 AD2d 126.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The appellant Jahron S. was arrested on July 13, 1989, in Jamaica, Queens. A petition filed the following day in Family Court, Queens County, alleged that he had committed acts that if engaged in by an adult would constitute criminal possession of a controlled substance in the third, fifth and seventh degrees. Attached to the petition was a supporting deposition in which Police Officer James Henry stated that he had observed appellant in possession of 33 vials of cocaine in crack form, and that "based upon [his] training and experience as a police officer assigned to a special narcotics unit with respect to the appearance, handling and packaging of narcotics and other controlled substances,” he believed the substance to be crack cocaine. The question before this Court is whether this petition, taken together with its supporting deposition, was legally sufficient in the absence of a laboratory report identifying the substance seized as cocaine. We conclude that it was not, and accordingly reverse the order of the Appellate Division.

The same day that the petition was filed, appellant’s counsel moved that it be dismissed as legally insufficient since there was no laboratory report attached to the petition and Officer Henry’s account in the supporting deposition constituted hearsay. The court denied the request at that time. By omnibus motion and accompanying affirmation dated August 7, 1989, appellant’s counsel again requested that the petition be dismissed for legal insufficiency. The presentment agency appended to its answering affirmation a laboratory report dated July 18, 1989, which showed that the 33 vials seized from appellant contained 2,648 milligrams of crack cocaine. At a hearing before the Judge on August 15, 1989, appellant’s counsel again requested that the petition be dismissed for legal insufficiency, arguing that the presentment agency could not amend its petition by attaching the laboratory report because Family Court Act § 311.5 provides that a petition cannot be amended to cure legal insufficiency. The court reserved decision and finally denied appellant’s motion to dismiss the petition on September 13, 1989.

A hearing was held on September 20, 1989, to consider appellant’s motion to suppress. At this hearing, Officer Henry testified that on July 13, 1989, he was working as a backup on an undercover narcotics operation. At about 3:25 in the afternoon, he received a radio message from his partner, who reported that he had observed a young male engaged in a number of transactions which appeared to involve vials of crack cocaine. Approximately two minutes after receiving this message, Officer Henry spotted appellant, who fit the description radioed in by the other police officer. Officer Henry approached and detained the appellant. His partner drove by and confirmed that the appellant was the person he had seen earlier. Officer Henry then arrested appellant and recovered 33 vials of a substance that appeared to be crack cocaine from the pocket of appellant’s jacket. Appellant testified in his own behalf and denied having sold crack cocaine prior to his arrest.

After the Judge denied the suppression motion, appellant subsequently admitted the third count of the petition — criminal possession of a controlled substance in the seventh degree —in full satisfaction of all the charges in the petition. By order of disposition dated November 17, 1989, the court ordered that he be placed in the custody of the New York State Division for Youth for a period of up to 12 months.

On appeal to the Appellate Division, counsel for appellant argued that the delinquency petition should have been dismissed because it did not make out a prima facie case of drug possession. The Appellate Division affirmed the order of disposition, holding that because the deposition of the arresting officer was based on his own observations and on his unique knowledge as a member of a special narcotics unit, the deposition satisfied the requirements of Family Court Act § 311.2 (3).

"A petition originating a juvenile delinquency proceeding is a written accusation by an authorized presentment agency” (Family Ct Act § 311.1 [1]). Family Court Act § 311.1 (3) details the information that a petition must contain. For purposes of this appeal, the most important of these requirements is contained at section 311.1 (3) (h), which states that a petition must include "a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the crime charged and the [appellant’s] commission thereof with sufficient precision to clearly apprise the [appellant] of the conduct which is the subject of the accusation.” Family Court Act § 311.2 states that a petition is facially sufficient when it "substantially conforms” to the requirements of section 311.1, when "the allegations of the factual part of the petition, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the [appellant] committed the crime or crimes charged,” and when "non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the [appellant’s] commission thereof.”

The phrasing of these statutes makes it clear that a juvenile delinquency petition may in actuality consist of two separate parts: the formal petition itself, which must conform to the requirements of Family Court Act § 311.1; and any supporting depositions that may be attached to and filed with the formal petition. Thus, where one or more supporting depositions accompany a petition, the petition and the depositions together must satisfy the facial sufficiency requirements of the Family Court Act. In this case, the petition and Officer Henry’s supporting deposition between them must have (1) provided reasonable cause to believe that Jahron S. committed the crimes with which he was charged, and (2) contained nonhearsay allegations that established, if true, every element of the three crimes charged and the appellant’s commission of those three crimes.

The appellant focuses his argument on the second of these requirements and contends that Officer Henry’s opinion as to the content of the vials is legally insufficient because it does not by itself establish the existence of a controlled substance, which is an element of the crimes charged in the petition (see, People v Sierra, 45 NY2d 56, 59-60). In Matter of Detrece H. (78 NY2d 107, 110), the factual allegations in the petition filed against appellant were legally insufficient because they were not in the required nonhearsay form. We held in that case that the petition could not be amended to cure this deficiency because Family Court Act § 311.5 precluded amendment of the petition for the purpose of curing legal insufficiency of the factual allegations. Thus, appellant cites Matter of Detrece H. to support his argument that the presentment agency could not amend the petition by adding a laboratory report at a later date and that the petition must therefore be dismissed.

A petition is "the sole instrument for the commencement, prosecution, and adjudication of the juvenile delinquency proceeding” (Matter of Detrece H., supra, at 110). In this, the petition is very similar to a criminal information, which is governed by the Criminal Procedure Law, not the Family Court Act, but which, like a Family Court petition, "may serve as a basis both for the commencement of a criminal action and for the prosecution thereof’ (CPL 100.10 [1]), and must contain "[n]on-hearsay allegations * * * [that] establish, if true, every element of the offense charged and the defendant’s commission thereof’ (CPL 100.40 [1] [c]).

This Court has noted the similarity between the two instruments and has looked to the law governing the sufficiency of informations in considering challenges to the sufficiency of juvenile delinquency petitions. In Matter of David T. (75 NY2d 927), a petition was filed alleging that the appellant had committed acts, which if done by an adult, would have constituted criminal mischief in the fourth degree and reckless endangerment in the second degree in that he had intentionally damaged a car belonging to another and had driven the car erratically and at an excessive speed, creating a substantial risk of serious physical injury to others. The appellant argued that the petition was jurisdictionally defective because the nonhearsay portion of the police officer’s supporting deposition established only that the officer had seen the appellant walking away from the car.

In addressing the appellant’s argument in that case, we looked to our holding in People v Alejandro (70 NY2d 133) for guidance. In Alejandro, having noted that a prima facie case standard applies to informations since the information is the ultimate instrument of prosecution, we stated that failure to comply with the prima facie case requirement for facial sufficiency in CPL 100.40 (1) (c) and 100.15 (3) was a jurisdictional defect that required dismissal of the information (70 NY2d, at 137). Similarly, in Matter of David T (supra) we held that the omission in that case rendered the petition jurisdictionally defective (75 NY2d, at 929). We noted that “the Family Court Act * * * requires that the petition be supported by facts of a nonhearsay character * * * Because this requirement is found in both CPL 100.15 (3) and Family Court Act § 311.2 (3), and both the criminal information and the Family Court petition serve the same purpose as the sole instrument of prosecution or adjudication, the failure to comply with the statutory requirement” must be considered a nonwaivable jurisdictional defect (Matter of David T., supra, at 929).

The appellant argues that Matter of David T. and People v Alejandro, together with Matter of Detrece H. (supra) compel the conclusion that a prima facie standard applies equally to Family Court petitions. The presentment agency, by contrast, contends that a prima facie case requirement is not applicable to Family Court petitions because of a crucial difference between the language of Family Court Act § 311.1 (3) (h) and CPL 100.15 (3). Family Court Act § 311.1 (3) (h) provides that the factual statement in a petition should not contain allegations of an evidentiary nature. CPL 100.15 (3), on the other hand, provides that the factual allegations in an information should be of an evidentiary nature. The presentment agency argues that as a result of this difference in terminology, petitions should not be held to the same standard as informations and should be required only to give notice of the underlying offense. This view has found some support in the lower courts (see, e.g., Matter of Jose M., 178 AD2d 343, 346-347).

The presentment agency’s argument misapprehends the two-part nature of the Family Court petition, however. Family Court Act § 311.2 clearly contemplates, as noted above, that supporting depositions may be filed in addition to petitions and that the sufficiency of the petition is to be measured by the factual allegations contained not only in the petition itself but also in any supporting depositions that may be attached to it. While no definition of the term "supporting deposition” is contained in the Family Court Act, such a definition is contained at CPL 100.20, which provides that "[a] supporting deposition is a written instrument * * * containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.” Although Family Court Act § 303.1 (1) provides that "[t]he provisions of the criminal procedure law shall not apply to proceedings under this article unless the applicability of such provisions are specifically prescribed by this act,” we believe that this section of the CPL is nonetheless instructive here in that supporting depositions serve the same function in Family Court petitions as they do in informations, simplified informations, misdemeanor complaints and felony complaints: they supplement the factual allegations contained in the petition and tend to support the charges. In fact, the heading at the top of the supporting deposition form used in this case indicates that it conforms to CPL 100.20.

In this case, the supporting deposition contained a personal statement by a police officer with direct knowledge of the crime committed that supplemented the allegations in the petition. The statement of the officer, in that it was based on his own knowledge and observations, was by nature evidentiary. Indeed, it is difficult to conceive of a situation where a deposition containing personal observations of this kind would not be evidentiary. Thus, we agree with the appellant that the restriction on the evidentiary content of the petition necessarily relates only to the petition itself and not to any supporting depositions that are appended to it. At the same time, however, because the statute clearly provides that the legal sufficiency of the petition is measured by the factual allegations contained both in the petition itself and in the supporting depositions, if any, we conclude that the restriction on the evidentiary content of Family Court petitions does not undermine the appellant’s argument that the petition and supporting depositions together must establish a prima facie case.

It is certainly implicit in our holding in Matter of David T. (supra) that the prima facie standard applicable to informations applies equally to Family Court petitions. Today, we make clear that because both informations and petitions are the ultimate instruments of prosecution and because both are required, in identical language, to contain nonhearsay allegations that establish, if true, every element of the offense charged and the accused’s commission of the offense, that a prima facie case standard is applicable to both. By consequence, the presentment agency, in order to establish a legally sufficient case, will be required to set forth in the petition "sufficient evidence to warrant a conviction, if unexplained or uncontradicted” (see, People v Potwora, 44 AD2d 207, 210).

This does not entirely resolve the present case, however. The question that remains is whether Officer Henry’s statement that based on his experience with illicit narcotics, the substance seized from appellant appeared to be crack cocaine, was sufficient to meet this prima facie case requirement. We conclude that it was not.

In People v Dumas (68 NY2d 729), this Court held that a misdemeanor complaint containing a conclusory statement that the defendant sold marihuana, but unsupported by evidentiary facts showing the basis for this conclusion, was legally insufficient. We suggested in dicta, however, that an allegation that the police officer was an expert in identifying marihuana might have rendered the complaint legally sufficient. The presentment agency has seized upon our language in Dumas and argues that such an allegation was contained in the supporting deposition here, and that the petition should be deemed legally sufficient as a result.

Dumas differs from the present case in one key respect, however. As noted above, that case involved a misdemeanor complaint, and the factual part of a misdemeanor complaint must simply establish "reasonable cause” to believe that the defendant committed the crime charged (CPL 100.40 [4] [b]). Thus, a much lower standard is applicable when determining the legal sufficiency of complaints, which, unlike informations and petitions, do not serve as the sole instrument of prosecution and adjudication. Our language in Dumas does not, therefore, resolve the case now before us.

Appellants urge us to hold that a laboratory report is always necessary in order to establish a prima facie case of cocaine possession. There is no need to establish a per se rule. We leave open the possibility that a deposition based on personal knowledge and expertness may, in now unforeseen circumstances, qualify as sufficient evidence to establish a prima facie case of drug possession because of the nature of the crime, or its elements, or the special knowledge of the affiant. In this case, however, the deposition was insufficient to satisfy the prima facie case standard.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the petition dismissed.

Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.


author: Bellacosa, J. Hancock, Jr., J.

text:
    Wildenstein & Co., Inc., Plaintiff, v Brent Wallis, Individually, as President of the Hal B. Wallis Foundation, as Trustee of the Hal B. Wallis Trust, and as Executor of Hal B. Wallis, Deceased, et al., Defendants.
    Argued April 29, 1992;
    decided June 9, 1992

      POINTS OF COUNSEL

      Jeremy G. Epstein, Joseph T. McLaughlin, Alan S. Goudiss, Karen S. Hart and Andrew W. Feinberg for plaintiff.
    I. The Rule against Perpetuities does not apply to preemptive rights or future consignment interests in governmental or commercial transactions involving personal property. (Anderson v 50 E. 72nd St. Condominium, 119 AD2d 73, 69 NY2d 743; Becce v Spencer Affiliates, 137 AD2d 575; Morrison v Piper, 77 NY2d 165; Weber v Texas Co., 83 F2d 807, 299 US 561; Matter of Nathanson, 27 Misc 2d 340; Metropolitan Transp. Auth. v Bruken Realty Corp., 125 Misc 2d 497, 112 AD2d 809, 67 NY2d 156.) II. The common-law rule prohibiting unreasonable restraints on alienation does not invalidate reasonable preemptive rights to personal property. (Allen v Biltmore Tissue

      Corp., 2 NY2d 534; Ryan v Thompson Co., 453 F2d 444, 406 US 907; Continental Cablevision v United Broadcasting Co., 873 F2d 717.) III. Application of the rule or the common-law rule prohibiting unreasonable restraints on alienation does not preclude Wildenstein’s claim for unjust enrichment. (Farash v Sykes Datatronics, 59 NY2d 500; Katz v Zuckermann, 126 Misc 2d 135, 119 AD2d 732; Matter of Rothko, 84 Misc 2d 830, 56 AD2d 499, 43 NY2d 305; Continental Cablevision v United Broadcasting Co., 873 F2d 717; Phillips v Iglehart, 626 F2d 393; Charlebois v Weller Assocs., 72 NY2d 587.) IV. Application of the rule or the common-law rule prohibiting unreasonable restraints on alienation does not preclude Wildenstein’s fraud claims. (Lehman v Dow Jones & Co., 783 F2d 285; Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403; Solin Lee Chu v Ling Sung Chu, 9 AD2d 888; National Bank & Loan Co. v Petrie, 189 US 423; Songbird Jet v Amax Inc., 581 F Supp 912; Sabo v Delman, 3 NY2d 155.)

      Martin R. Gold and Robert P. Mulvey for defendants.
    I. New York’s Rule against Perpetuities applies to preemptive rights and future consignment interests in personal property. (Morrison v Piper, 77 NY2d 165; Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156; Buffalo Seminary v McCarthy, 86 AD2d 435, 58 NY2d 867; Sherman v Richmond Hose Co. No. 2, 230 NY 462; Matter of Wilcox, 194 NY 288; Low v Bankers Trust Co., 270 NY 143; Matter of Kellogg, 35 AD2d 145; Glick v Beer, 263 App Div 599; Anderson v 50 E. 72nd St. Condominium, 119 AD2d 73, 69 NY2d 743; Smith v Smith, 116 AD2d 810.) II. New York’s common-law rule against unreasonable restraints on alienation invalidates preemptive rights and future consignment rights in personal property. (Allen v Biltmore Tissue Corp., 2 NY2d 534; Rafe v Hindin, 29 AD2d 481, 23 NY2d 759; Wraight v Estate of Neu, 155 AD2d 904; Witt v Disque, 79 AD2d 419; Kowalsky v Familia, 71 Misc 2d 287; Benson v RMJ Sec. Corp., 683 F Supp 359; Continental Cablevision v United Broadcasting Co., 873 F2d 717.) III. Wildenstein cannot maintain a claim for unjust enrichment stemming from the loss of future interests invalid under the Rule against Perpetuities or the common-law rule against unreasonable restraints on alienation. (Sage v Hampe, 235 US 99; Matter of Walker, 64 NY2d 354; Walters v Fullwood, 675 F Supp 155; Segrete v Zimmerman, 67 AD2d 999; Stone v Freeman, 298 NY 268; McConnell v Commonwealth Pictures Corp., 7 NY2d 465; United Calendar Mfg. Corp. v Huang, 94 AD2d 176; Woodworth v Bennett, 43 NY 273; Dewitt v Brisbane, 16 NY 508; Gray v Hook, 4 NY 449.) IV. Wildenstein cannot state a claim for fraudulent inducement or fraud based upon future interests invalid under the Rule against Perpetuities or the common-law rule against unreasonable restraints on alienation. (Matter of Grace, 232 App Div 76, 261 NY 502; Silvera v Safra, 79 Misc 2d 919; Mix v Neff, 99 AD2d 180; Newborn v Peart, 121 Misc 221, 219 App Div 249; Edwil Indus. v Stroba Instruments Corp., 131 AD2d 425; Luxonomy Cars v Citibank, 65 AD2d 549; Bouquet Brands Div. of J & D Food Sales v Citibank, 97 AD2d 936; Stella Flour & Feed Corp. v National City Bank, 285 App Div 182, 308 NY 1023; National Bank & Loan Co. v Petrie, 189 US 423.)
   OPINION OF THE COURT

Bellacosa, J.

Wildenstein & Co., a dealer in fine art, seeks relief under a settlement agreement between itself and Hal Wallis, now deceased, pursuant to which Wildenstein returned to Wallis in 1982 two valuable paintings, Monet’s "Houses of Parliament” and Gauguin’s "The Siesta — A Brittany Landscape”. In exchange, the agreement gave Wildenstein preemptive and exclusive consignment rights with respect to 15 original paintings by renowned artists in Wallis’s collection. Wildenstein’s lawsuit, begun in the United States District Court for the Southern District of New York, named the Estate of Hal B. Wallis, the Hal B. Wallis Trust, the Hal B. Wallis Foundation and Brent Wallis as defendants. The defendants resisted Wildenstein’s claims by invoking the Rule against Perpetuities (EPTL 9-1.1) and the common-law rule against unreasonable restraints on alienation of property.

This lawsuit comes to us from the United States Court of Appeals for the Second Circuit, which certified four questions arising out of an appeal in that court from the District Court’s dismissal of the Wildenstein complaint:

"(1) Does the New York Rule Against Perpetuities apply to preemptive rights and future consignment interests in personal property?
"(2) Does the New York common law rule against unreasonable restraints on alienation invalidate preemptive rights and future consignment interests in personal property?
"(3) If either the Rule Against Perpetuities or the common law rule against unreasonable restraints on alienation invalidates the preemptive rights and future consignment interests at issue here, can the beneficiary of those rights assert a claim for unjust enrichment stemming from the loss of such rights and interests?
"(4) If either the Rule Against Perpetuities or the common law rule against unreasonable restraints on alienation invalidates the preemptive rights and future consignment interests at issue here, can the beneficiary of those rights and interests nevertheless state a claim for fraudulent inducement and fraud arising from the transaction that gave it such rights and interests?” (949 F2d 632, 636.)

On January 16, 1992, we accepted the certified questions (see, NY Const, art VI, § 3 [b] [9]; 22 NYCRR 500.17).

The first two questions are not academic abstractions and must be construed in the context of the real case in controversy in order to provide meaningful and appropriate answers. We must determine whether the New York statutory Rule against Perpetuities applies to invalidate Wildenstein’s preemptive and consignment rights, or whether the common-law rule against unreasonable restraints on alienation is transgressed. We conclude in the negative as to those two questions and, therefore, need not address the third and fourth questions relating to alternative relief.

I.

Hal Wallis, a California-based film producer whose credits included "Casablanca”, avidly collected Impressionist and Modern works of art. In late 1980, Wallis’s wife, Martha Hyer Wallis, apparently gave, without his knowledge, paintings from the collection, including "Houses of Parliament” and "The Siesta — A Brittany Landscape”, to several individuals in exchange for an anticipated loan to her of approximately $1 million. In January 1981, two of these individuals went to Wildenstein’s New York City offices offering to sell the Monet and the Gauguin. They produced a power of attorney and other documents purporting to grant them authority to sell the paintings for Mrs. Wallis. Wildenstein purchased the two paintings for $650,000.

Hal Wallis learned that Wildenstein had his Monet and Gauguin in August 1981. Through his attorney, he sought to retrieve the paintings, informing Wildenstein that the paintings had been sold without his permission. On April 20, 1982, following lengthy negotiations, Wildenstein and Wallis reached a formal settlement agreement pursuant to which Wildenstein returned the two paintings to Wallis in exchange for $665,000, representing the $650,000 Wildenstein paid for them plus $15,000 for expenses. The settlement agreement provides that Wildenstein would have a right of first refusal to purchase and an exclusive right of consignment to auction 15 named paintings in the Wallis collection. The first refusal right, sometimes also referred to as a preemptive right, requires Hal or Martha Wallis to give Wildenstein at least 30 days prior notice of the terms of any proposed sale of a painting covered by the settlement agreement, and provides that Wildenstein shall have the option to purchase such painting within 20 days on the same terms as the triggering purchase offer. The exclusive right of consignment requires that, in the event the Wallises decide to sell any painting at auction, the painting shall be consigned exclusively to Wildenstein for six months. The agreement recites the parties’ intent that "Wildenstein shall have the first opportunity to purchase or sell all paintings listed”. The terms of the settlement agreement are applicable to the "executors, successors and assigns” of the Wallises and Wildenstein. However, the agreement specifically excludes any painting given to a charitable organization exempt from tax under Internal Revenue Code § 501 (c) (3) (26 USC § 501 [c] [3]).

Hal Wallis died in October 1986. Pursuant to the terms of the Hal B. Wallis Trust as amended in 1985, most of the paintings in the Wallis collection were distributed to the Hal B. Wallis Foundation, a tax-exempt charitable organization, which was to arrange to have the paintings displayed at the Los Angeles County Museum of Art. Under the terms of the Wallis Trust, Renoir’s "Jeune Filie au Chapeau a Coquelicots”, one of the paintings covered by the settlement agreement, passed to Hal Wallis’s son, defendant Brent Wallis, subject to his guarantee not to sell the painting. In December 1986, Brent Wallis nevertheless sold the Renoir for $750,000.

In early 1989, Wildenstein learned that the Hal B. Wallis Foundation intended to sell other paintings listed in the settlement agreement at an auction to be held on May 10, 1989 at Christie’s in New York. On May 9, 1989, Wildenstein sued Brent Wallis, the Wallis Trust, the Wallis Foundation and the Wallis Estate in the United States District Court. The complaint was dismissed by the District Court, which granted summary judgment to the Wallis defendants (756 F Supp 158).

The District Court declined to decide whether Wildenstein’s rights under the settlement agreement are immune from the New York Rule against Perpetuities under Metropolitan Transp. Auth. v Bruken Realty Corp. (67 NY2d 156). Instead, that court rested its decision on the common-law rule against unreasonable restraints on the alienation of property. It rejected Wildenstein’s claims under the settlement agreement, stating: “these private restrictions on the transferability of the Wallis paintings did not further any countervailing public interest in the purchase and sale of works of fine art or otherwise facilitate such transactions” (756 F Supp 158, 164-165, supra).

II.

At the outset of our analysis, it is important to place the Wildenstein/Wallis agreement and the respective benefits and obligations of those contracting parties in perspective. Wildenstein is a commercial art dealer and Wallis was an avid art collector. They settled a dispute over valuable art works of world-wide renown. That settlement boomeranged into this controversy that dissolves under a remarkable old doctrine— the Rule against Perpetuities. That the principles of the 1682 Duke of Norfolk’s Case (3 Ch Cas 1) should emerge to dominate this modern commercial transaction is a royal irony that does not serve the common-law policy designed to block long-term retention over property by long-gone ancestors.

The Rule against Perpetuities and the common-law rule against unreasonable restraints on alienation both limit the ability of owners to control future dispositions of their property. The New York Rule against Perpetuities, codified at EPTL 9-1.1, provides that (1) any present or future estate is void if it suspends the absolute power of alienation for a period beyond lives in being at the creation of the estate plus 21 years (EPTL 9-1.1 [a] [2]), and (2) any estate in property is invalid unless it must vest, if at all, within the same period (EPTL 9-1.1 [b]). The statutory rule against remote vesting (EPTL 9-1.1 [b]) is thus a rigid formula that invalidates any interest that may not vest within the prescribed time period (see, Turano, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17B, EPTL 9-1.1, at 480; Morris and Leach, The Rule Against Perpetuities, at 12 [2d ed 1962]). Because of its capricious consequences, the modern view of the rule has evoked its characterization as a “Reign of Terror” (Leach, Perpetuities in Perspective: Ending the Rule’s Reign of Terror, 65 Harv L Rev 721, 721-723 [1952]).

Somewhat in tandem, the common-law rule against unreasonable restraints on the alienation of property, which invalidates unduly restrictive controls on future transfers, erects a somewhat more flexible standard, requiring a case-by-case analysis that measures reasonableness of the restraint by its price, duration and purpose (Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156, 161-162, supra; Allen v Biltmore Tissue Corp., 2 NY2d 534). Despite their differences, however, both the statutory and common-law rules strive to strike a balance between society’s interest in the free alien-ability of property and the rights of owners to direct future transfers.

A.

We turn to the first question certified: whether the rule against remote vesting applies to Wildenstein’s rights under the settlement agreement.

The Rule against Perpetuities, though founded in a real property context, became generally applicable to interests in both real and personal property (see, Sherman v Richmond Hose Co. No. 2, 230 NY 462, 471). We have also held the rule applicable to options in real estate transactions (Buffalo Seminary v McCarthy, 58 NY2d 867, affg for reasons stated in parts I and II of opn below 86 AD2d 435 [Hancock, Jr., J.]). In certain contexts, preemptive rights may also be subject to the Rule against Perpetuities (see, Morrison v Piper, 77 NY2d 165, 170; Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156, 164-166, supra).

The instant settlement agreement grants Wildenstein two types of rights — preemptive rights, should the Wallises decide to privately sell any of the covered paintings, and exclusive consignment rights, should the Wallises decide to sell by auction. Preemptive rights differ significantly from options in that the holder of an option has the power to induce a transaction, while the holder of a preemptive right may purchase only if an owner decides to sell (see, Metropolitan Transp. Auth. v Bruken Realty Corp., supra, at 163; see also, LIN Broadcasting Corp. v Metromedia, Inc., 74 NY2d 54, 60). While we have not addressed the applicability of the Rule against Perpetuities to future consignment rights, the parties have offered no distinction to justify treating such rights differently from preemptive rights. These two kinds of rights constitute future contingent interests in 15 paintings which can be triggered only by the Wallises’ decision to sell, privately or by auction.

To resolve the applicability of the Rule against Perpetuities with respect to Wildenstein’s rights, we must examine the history and purposes of the rule in the relevant context of this Court’s recent decisions in Metropolitan Transp. Auth. v Bruken Realty Corp. (67 NY2d 156, supra) and Morrison v Piper (77 NY2d 165, supra). The rule against remote vesting originated in the late 17th century to address donative transfers of land among family members. By curbing attempts by the landed gentry to control future generations’ ownership of their real property, the rule protected the public’s interest in the development of land and prevented undue concentrations of wealth and power (see, 5A Powell, Real Property fl 759 [1], at 71-2 — 71-4; Leach, Perpetuities in Perspective: Ending the Rule’s Reign of Terror, 65 Harv L Rev 721, 725-726). Although the limits imposed by the rule upon the power to control future ownership of property stem from a policy against the withdrawal of property from commerce, the rule against remote vesting struck a balance in allowing property owners to provide for family members they personally knew and those within the first generation after that class (see, 6 American Law of Property § 24.16, at 51 [1952]; see also, Dukeminier, A Modern Guide to Perpetuities, 74 Cal L Rev 1867, 1869-1870).

The Rule against Perpetuities thus began as a flexible balancing principle. Commentators became troubled as the rule acquired rigid encrustations over the centuries because it did not sufficiently lend itself in a modern setting to taking reasonable account of competing interests and evolving policies (see, Morris and Leach, The Rule Against Perpetuities, at 12-13 [2d ed 1962]; Dukeminier, A Modern Guide to Perpetuities, op. cit., at 1869-1870). Professor Leach found the extension of the rule to modern commercial transactions, such as option agreements, a "step of doubtful wisdom” which, he suggested, ought to be the outer limits of its application to commercial contractual responsibilities (see, Leach, Perpetuities in Perspective: Ending the Rule’s Reign of Terror, 65 Harv L Rev 721, 736-737; see also, Leach, Perpetuities: New Absurdity, Judicial and Statutory Correctives, 73 Harv L Rev 1318, .1321-1322; Leach, Perpetuities in a Nutshell, 51 Harv L Rev 638, 660). Application of the rule to invalidate rights such as rights of first refusal has been found to defeat the legitimate expectations of the holder of the rights to the advantage of the other party who expressly agreed to the limitations (see, Weber v Texas Co., 83 F2d 807, 808-809, cert denied 299 US 561; Note, Survey, Developments in Maryland Law, 1987-1988: Property, 48 Md L Rev 749, 783-784). Thus, courts have recognized that the important commercial interests served by upholding preemptive rights, which only minimally affect alien-ability, outweigh the purpose underlying the rule against remote vesting (see, Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156, supra; see also, Anderson v 50 E. 72nd St. Condominium, 119 AD2d 73, 78, appeal dismissed 69 NY2d 743; Weber v Texas Co., 83 F2d 807, supra; Cambridge Co. v East Slope Inv. Corp., 700 P2d 537 [Colo]; Shiver v Benton, 251 Ga 284, 304 SE2d 903; Robroy Land Co. v Prather, 95 Wash 2d 66, 622 P2d 367; Hartnett v Jones, 629 P2d 1357 [Wyo]).

In Metropolitan Transp. Auth. v Bruken Realty Corp. (67 NY2d 156, supra), this Court acknowledged the contradiction of ancient purpose and modern application. We held the Rule against Perpetuities inapplicable to preemptive rights in commercial and governmental transactions, emphasizing that application of the rule "would invalidate an agreement which promoted the use and development of the property” (Metropolitan Transp. Auth. v Bruken Realty Corp., supra, at 166, 168). In Morrison v Piper (77 NY2d 165, supra), we addressed the applicability of the rule to preemptive rights in a noncommercial, family transaction involving residential property. We declined to extend the modern realism of Bruken to interests arising out of that family-land transaction, which had all the traditional touchstones envisioned by the original rule and purpose. Even so, we found an interpretative path, as the statute prescribes, to avoid invalidation of the transfer wherever possible (id., at 171-174). Thus, our Morrison decision should not be read to limit or otherwise affect the scope of the Bruken holding and exception concerning the Rule against Perpetuities in contemporary commercial settings.

In light of the history and purposes underlying the rule and the commercial and precedential context in which the Wildenstein/Wallis agreement arose, we conclude that the rule against remote vesting does not apply to these preemptive and exclusive consignment rights. The parties’ agreement, although factually in the borderland between the transactions considered in Bruken and Morrison, is plainly closer to that in Bruken and qualifies for the commercial escape route from the rule expounded as part of Bruken’s rationale.

In exchange for helping Wallis regain a valued part of his collection, Wildenstein was assured that in the event of a sale of one or more of the paintings, it might still realize the profit or commission it hoped to earn when it originally acquired the Monet and the Gauguin. That the agreement also covered 13 other paintings does not alter our analysis, particularly because Wildenstein’s rights are triggered only by a decision to sell the paintings. Because Wildenstein must meet a third party’s offer if it elects to exercise its preemptive right, that right allows the Wallises, and their executors, successors or assigns, to realize the highest possible price should they decide to sell any of the paintings subject to the agreement. The agreement leaves the Wallises, and their executors, successors and assigns, free to maintain the paintings in the private collection or transfer them to a tax-exempt charitable organization — factual and interpretative matters not within the questions certified to us nor upon which we may rule or express any views.

Inasmuch as Wildenstein’s preemptive and exclusive consignment rights serve significant commercial interests by facilitating broader marketing of world-renowned art treasures while posing, at the most, only a minimal limitation on the alienability of the works, we conclude that they are not subject to the Rule against Perpetuities. Accordingly, the first certified question, as thus construed and applied, should be answered in the negative.

B.

Turning next to the second question certified, we address the validity of Wildenstein’s rights under the common-law rule against unreasonable restraints on alienation. We conclude that this doctrine does not invalidate Wildenstein’s rights under the agreement.

The reasonableness of Wildenstein’s preemptive first refusal rights and exclusive consignment rights depends upon their duration, price and purpose (see, Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156, 167, supra; Allen v Biltmore Tissue Corp., 2 NY2d 534, 542, supra). The rule condemns "not a restriction on transfer, a provision merely postponing sale during the option period, but an effective prohibition against transferability itself’ (Allen v Biltmore Tissue Corp., supra, at 542 [emphasis in original]). Thus, the reasonableness of Wildenstein’s rights is determined by considering the 30-day period during which it could exercise its preemptive rights and the six-month period of its exclusive consignment right, not the remotely potential perpetual quality of those rights. We have upheld 90-day periods for exercising preemptive rights to purchase land (Metropolitan Transp. Auth. v Bruken Realty Corp., supra) and corporate stock (Allen v Biltmore Tissue Corp., supra). We note that the record contains an uncontradicted affidavit of an art gallery expert attesting to the widespread use of preemptive and exclusive consignment rights in the art world, and the unusually short duration of the six-month exclusive consignment rights in the Wildenstein/Wallis agreement.

The terms of Wildenstein’s first refusal right require it to meet the offer of a third party. Preemptive rights conditioned upon payment equal to a third party’s offer are generally reasonable; under this method of price determination, the owner suffers no legally cognizable loss (see, Metropolitan Transp. Auth. v Bruken Realty Corp., supra, at 167-168; 3 Simes and Smith, Future Interests § 1154, at 62-63 [2d ed]). The settlement agreement provides that should the Wallises wish to sell any of the paintings at auction, they may propose a price for the paintings. If the parties ultimately cannot agree as to a reasonable price, the agreement requires that the price be set by a major international auction house representative. This method of price setting, with input by Wildenstein, the Wallises and an independent third party, seems sensible and balanced. It ill behooves a court to substitute its sense of unreasonableness for the parties’ arm’s length agreement in the circumstances of a settlement of an essentially commercial dispute like the one in this case. Thus, given the reasonableness of the price, duration and purpose of Wildenstein’s first refusal and exclusive consignment rights, they should not be declared invalid under the common-law rule prohibiting unreasonable restrictions on the alienation of property.

Accordingly, the first and second questions certified, as construed and applied, should be answered in the negative and the third and fourth questions certified, concerning the alternative remedies that might be available in the event Wildenstein’s rights were deemed invalid under either of the first two certified questions, should be not answered as unnecessary.

Hancock, Jr., J.

(concurring). I agree with the Court’s two determinations (majority opn, at 645): (1) that the New York Rule against Perpetuities does not apply to invalidate Wildenstein’s preemptive and consignment rights; and, (2) that the rule against unreasonable restraints on alienation is not transgressed. I also agree with so much of the opinion as relates to the Court’s answer to the second question. In answering the first question, however, it is not necessary to resolve what, I believe, is a problematic issue: i.e., whether the settlement agreement comes within the Bruken exception to the general rule that EPTL 9-1.1 (b) applies to preemptive options (see, Morrison v Piper, 77 NY2d 165, 170-171; Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156, 164-167).

If it were assumed that the rule against remote vesting applied to the instrument before us, the answer to the question submitted would be the same. The problem is resolved by simply applying the special rule of construction which the Legislature has enacted to govern "with respect to any matter affecting the rule against perpetuities” (EPTL 9-1.3 [a]). The statute directs that "[u]nless a contrary intention appears” (EPTL 9-1.3 [a]), "[i]t shall be presumed that the creator intended the estate to be valid” (EPTL 9-1.3 [b] [emphasis added]; see, Morrison v Piper, supra, at 171-174; Turano, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17B, EPTL 9-1.3, at 543-544).

There is nothing in the agreement indicating that the parties had any thought that it would ever be enforced against anyone other than the Wallises or their respective executors, or at any time after the Wallises’ deaths except during the administration of their estates. Certainly, nothing suggests that the preemptive option and consignment clauses were intended to bind future generations or to be indefinite in duration. On the contrary, both the option and consignment provisions are, by their terms, to be enforced only against "Mr. Wallis, Mrs. Wallis, or their respective executors.” In this respect, it is significant that while the eighth paragraph makes the agreement binding on the Wallises’ executors, successors and assigns, the word "heirs” is omitted (compare, Buffalo Seminary v McCarthy, 86 AD2d 435, 445, affd 58 NY2d 867, for reasons stated in parts I and II of opn at App Div, Hancock, Jr., J. [presence of the word "heirs” significant in determining that option was intended to be exercised by prospective owners indefinitely and, hence, was of indefinite duration]).

Finally, the sense and purpose of the settlement agreement, taken as a whole, leave no doubt that it relates not to remote contingencies but to events which were expected to occur, if at all, within the immediate future. Mr. Wallis was very elderly when the settlement was reached. The contingencies giving rise to Wildenstein’s option right and its consignment right are respectively: "If Mr. Wallis, Mrs. Wallis, or, upon their decease, the executors of their respective estates, receives an offer acceptable to him or her for the purchase of any painting” (agreement, para 3 [emphasis added]) and "If Mr. Wallis, Mrs. Wallis, or, upon their decease, the executors of their respective estates, determines to sell at auction any painting listed” (agreement, para 4 [emphasis added]). What the parties had in mind, it seems evident, were decisions or transactions pertaining to the sale of the paintings which would be made while the Wallises were still living or following their deaths during the period of administration of their estates (see, Morrison v Piper, supra, at 174 [over-all sense of instrument shows intent to restrict right to exercise option "to immediate family members whom (the parties) would be likely to know and to prohibit exercise by strangers — e.g., purchasers or remote donees or beneficiaries”]; compare, Buffalo Seminary v McCarthy, supra, at 445 [option agreement read as a whole indicated purpose of option on 20-foot strip was protection during indefinite future for prospective owners from placement of improvements on optioned parcel]).

In sum, the settlement agreement could not offend the rule against remote vesting, in any event. Assuming the applicability of the rule to a preemptive option clause of the type in question, the provision would be saved from invalidity by the presumption of validity in EPTL 9-1.3 (b). Any contingency involving the Wallises’ executors would be presumed to have been intended to occur, if at all, within 21 years from the effective date of the settlement agreement (EPTL 9-1.3 [d]).

Chief Judge Wachtler and Judges Simons, Kaye and Ti-tone concur with Judge Bellacosa; Judge Hancock, Jr., concurs in result in a separate opinion.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.17 of the Rules of Practice of the New York State Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question number one answered in the negative, certified question number two answered in the negative, and certified questions number three and four not answered as unnecessary.


text:
    The People of the State of New York, Respondent, v Roger Dokes, Appellant.
    Argued May 5, 1992;
    decided June 11, 1992

      POINTS OF COUNSEL

      Susan H. Salomon and Philip L. Weinstein for appellant.
    I. Appellant’s absence from both Sandoval hearings violated his constitutional and statutory rights to be present at all material stages of the criminal proceedings against him. (United States v Gagnon, 470 US 522; Snyder v Massachusetts, 291 US 97; People v Anderson, 16 NY2d 282; People v Scott, 163 AD2d 341; People v Jenkins, 157 AD2d 854; People v Sandoval, 34 NY2d 371; People v Harris, 76 NY2d 810; People v Rodriguez, 76 NY2d 918; People v Velasco, 77 NY2d 469.) II. Where identification was the contested issue, the court abridged appellant’s right to present evidence and due process by precluding a defense witness from explaining why he had noted a particular detail of appellant’s clothing, a detail that sharply contradicted the arresting officer’s description of the perpetrator. (Chambers v Mississippi, 410 US 284; Jenkins v McKeithen, 395 US 411; People v Carter, 37 NY2d 234; People v Rosa, 153 AD2d 257; United States v Valenzuela-Bernal, 458 US 858; People v Daly, 64 NY2d 970; People v Gilliam, 45 AD2d 744, 37 NY2d 722; Rock v Arkansas, 483 US 44; People v Westergard, 113 AD2d 640, 69 NY2d 642; People v Hudy, 73 NY2d 40.) III. Appellant’s due process rights were violated by the prosecutor’s summation, which urged (a) an inference of guilt abased on appellant’s arrest outside of his own neighborhood, and (b) a finding of guilt "on behalf of’ the "citizens” and "home owners” of the neighborhood of his arrest. (People v Daly, 64 NY2d 970; People v Ashwal, 39 NY2d 105; People v Accolla, 131 AD2d 856; People v Whalen, 59 NY2d 273; People v Baker, 54 AD2d 547; United States v Young, 470 US 1; People v Melendez, 55 NY2d 445; People v Greene, 75 NY2d 875; People v Gonzales, 92 AD2d 873; People v McMillan, 66 AD2d 830.) IV. Appellant’s absence during the precharge conference and when the court conducted the exercise of the for-cause and peremptory juror challenges, in-chambers, violated his constitutional and statutory rights to be present at all material stages of the criminal proceedings against him. (People v Velasco, 77 NY2d 469.)

      Richard A. Brown, District Attorney (David L. Heller, Barbara D. Underwood and Robin A. Forshaw of counsel), for respondent.
    I. Defendant’s absence from the reargument of his Sandoval motion, from a precharge conference and from preliminary discussion of juror challenges did not deprive him of his constitutional or statutory right to be present at all material stages of trial. (People v Mehmedi, 69 NY2d 759; People v Mullen, 44 NY2d 1; Snyder v Massachusetts, 291 US 97; People v Velasco, 77 NY2d 469; People v Rodriguez, 76 NY2d 918; People v Ferguson, 67 NY2d 383; People v Ahmed, 66 NY2d 307; People v Patterson, 39 NY2d 288, 432 US 197; People v Alexander, 174 AD2d 996, 78 NY2d 1073.) II. The trial court properly exercised its discretion in limiting testimony of a defense witness about why he remembered defendant’s clothing at arraignment. (People v Westergard, 69 NY2d 642; People v Daly, 64 NY2d 970; People v Allen, 74 AD2d 640; People v Shaw, 150 AD2d 626; People v Valentin, 130 AD2d 529; People v Crimmins, 36 NY2d 230.) III. The prosecutor’s comments in summation did not violate defendant’s right to due process. (People v Lombardi, 20 NY2d 266; People v Sanchez, 61 NY2d 1022; People v Gibbs, 59 NY2d 930; People v Berg, 59 NY2d 294; People v Galloway, 54 NY2d 396.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Following a jury trial, defendant was convicted of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and unlawful possession of marihuana. The charges and resulting convictions stem from a routine "buy and bust” operation in the Borough of Queens.

Defendant’s primary contention on this appeal is that his right to be present at all material stages of the trial was violated when the trial court conducted a Sandoval hearing (see, People v Sandoval, 34 NY2d 371) in his absence. We agree and consequently reverse the order of the Appellate Division affirming the judgment of conviction.

The only facts relevant to this appeal are those concerning the hearing on defendant’s Sandoval motion to preclude the People from cross-examining him about prior crimes. It is undisputed that defendant was not present during a conference in the Judge’s robing room, held immediately prior to jury selection for this trial, during which the court heard counsels’ arguments on this motion. The People contend, however, that defendant was present at a Sandoval hearing conducted in connection with a prior effort to try defendant on these charges and that the later hearing was merely a reargument of the court’s prior Sandoval ruling. Thus the People argue that, even assuming that defendant’s presence is required at a Sandoval hearing, his presence at the initial hearing effectively satisfied this requirement for the later proceeding. Defendant, on the other hand, contends that he was not present at the earlier hearing.

The record is equivocal with respect to defendant’s presence at the earlier hearing, but this factual dispute is inconsequential for our purposes. The record of the second hearing, from which defendant was absent, indicates that the motion was considered de novo. The benefits that defendant may have obtained by his presence at the first hearing, if he was present then, did not carry over to the second hearing. In these circumstances, we do not consider it material that defendant may have been present at an earlier hearing on his motion.

A defendant’s presence at trial is required not only by the Confrontation and Due Process Clauses of the Federal and State Constitutions (see, US Const 6th, 14th Amends; NY Const, art I, § 6), but also by CPL 260.20, which provides that "[a] defendant must be personally present during the trial of an indictment”. The statutory right, we have held, extends to "the impaneling of the jury, the introduction of evidence, the summations of counsel, and the court’s charge to the jury” (People v Velasco, 77 NY2d 469, 472; see, People v Sloan, 79 NY2d 386; People v Mullen, 44 NY2d 1, 4). In addition, due process requires that a defendant be present "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge” (Snyder v Massachusetts, 291 US 97, 105-106; see, People v Mullen, supra, at 4-5; People v Ciaccio, 47 NY2d 431, 436).

Applying these standards, we have held that a defendant has a right to be present during a pretrial suppression hearing during which witnesses are examined and cross-examined, noting that the "defendant alone may be able to inform his attorney of inconsistencies, errors and falsities in the testimony of the officers or other witnesses” (People v Anderson, 16 NY2d 282, 288). Similarly, we held in People v Turaine (78 NY2d 871) that the defendant had a right to be present at a hearing to determine the admissibility of a witness’ proposed testimony that the defendant had threatened the witness to prevent him from testifying. We noted (at 872) that defendant was entitled "to confront the witness against him at that hearing and also to be present so that he could advise counsel of any errors or falsities in the witness’ testimony which could have an impact on guilt or innocence.”

By way of contrast, we have held that the defendant’s presence was not required at a precharge conference concerning such matters as the scheduling of the rest of the trial and the concluding instructions to be given to the jury by the court (see, People v Velasco, supra). The basis for our conclusion in that case was that "[t]he conference involved only questions of law or procedure” (id., at 472; see also, People v Rodriguez, 76 NY2d 918 [defendant not entitled to be present during discussion between court and defense counsel, outside the jury’s presence, concerning sufficiency of read-back of testimony]).

In determining whether a defendant has a right to be present during a particular proceeding, a key factor is whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant’s or countering the People’s position. If so, as in Anderson (supra) and Turaine (supra), then the defendant has a right to be present. The Sandoval hearing in this case was such a proceeding.

The purpose of a Sandoval hearing is to determine the extent to which the defendant, if he testifies, will be subject to impeachment by cross-examination about prior bad acts (People v Sandoval, 34 NY2d 371, supra). Typically, the focus of such a hearing is a report on the defendant’s criminal history compiled by the State Division of Criminal Justice Services (DCJS) which contains information about any prior arrests and the disposition of those charges. In the usual case, the prosecution will seek permission to cross-examine the defendant about most, if not all of the charges reflected in that report. The People may also seek to inquire about prior bad acts of which they are aware that have not been the subject of formal charges.

Based on a number of factors — including the nature of the conduct, its similarity to the pending charges, the extent to which it bears on the defendant’s credibility, the age of the defendant at the time, the disposition of the charges and many other factors — the court must determine whether the probative value of the evidence concerning the defendant’s prior bad acts is outweighed by its prejudicial impact. In its discretion, the court may allow the People to cross-examine the defendant about all prior bad acts, about some of them or about none of them; it may allow the People to inquire about the facts underlying the charges or it may limit the People to asking whether the defendant was convicted of a particular crime or, even more generally, whether the defendant was convicted of a felony or misdemeanor, as the case may be.

Given the number of factors that are relevant to the court’s decision, the potential for meaningful participation by the defendant during the determination of the merits of a Sandoval motion is apparent. For example, the defendant is in the best position to point out errors in the DCJS report, to controvert assertions by the prosecutor with respect to uncharged acts and to provide counsel with details about the underlying facts of both charged and uncharged acts. In short, the defendant’s presence will help to ensure that the court’s determination will not be predicated on the prosecutor’s “unrebutted view of the facts” (People v Ortega, 78 NY2d 1101, 1103).

The importance of the defendant’s ability to participate in this proceeding is compounded by the significance of the court’s determination. The court’s ruling on the permissible scope of cross-examination about prior bad acts is often the pivotal factor in the defendant’s determination whether to testify. Thus, except in circumstances where the nature of the defendant’s criminal history and the issues to be resolved at the Sandoval hearing render the defendant’s presence superfluous, the hearing should not be conducted without the presence of the accused.

Here, the hearing involved seven prior charges dating back as far as 1980. It cannot be said on this record that defendant’s presence "would have been 'useless, or the benefit but a shadow’ ” (People v Velasco, supra, at 473, quoting Snyder v Massachusetts, 291 US 97, 106-107, supra).

For these reasons, we conclude that the Sandoval hearing was a material stage of the trial at which the defendant’s presence was required. Since the contention concerns the right conferred by CPL 260.20, defendant’s failure to object is not fatal to his claim (see, People v Bonaparte, 78 NY2d 26, 31-32, n; People v Mehmedi, 69 NY2d 759, 760; People v Ahmed, 66 NY2d 307, 310).

Because a new trial is required on this ground, we find it unnecessary to address defendant’s additional argument that the trial court, after sustaining his objection to the prosecutor’s "safe streets” appeal during summation, should have granted defendant’s request for a mistrial. Defendant’s remaining claims are without merit.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

      . The trial that is the subject of this appeal was the third trial of the indictment against defendant. Mistrials were declared in the first two.

      . In addition to claiming that he had a right to be present at the Sandoval hearing, defendant also claims that he had a right to be present during a precharge conference and during an in-chambers conference during jury selection at which counsel advised the court of their peremptory challenges and challenges for cause. As defendant acknowledges, these same claims were rejected by us in People v Velasco (supra, at 472-473) and, despite defendant’s invitation to do so, we perceive no reason to depart from our rulings in that case.

      . In People v Matthews (68 NY2d 118, 121-122) we held that the defendant bears the burden of bringing to the court’s attention those prior bad acts about which he seeks to preclude cross-examination by the People. The 1987 enactment of CPL 240.43 modified that holding to the extent of permitting the defendant to require the prosecution to notify him of any uncharged bad acts that it intends to use at trial for impeachment purposes.

      . A 1991 report of the State Comptroller notes that errors in DCJS records are common: “The Division does not maintain a complete, accurate and secure criminal history database to serve its users. Because of this, judges, prosecut[o]rs and law enforcement personnel cannot rely on criminal history data to carry out their respective functions. Thus, community security may be jeopardized and criminal defendants may be constitutionally harmed.” (Off of St Comp, Performance Audit Report 89-S-16, Division of Criminal Justice Services: Criminal Records, at MS-2.)