author: Gabrielli, J. Wachtler, J.

text:
    Joan Kleila, Respondent, v Richard Kleila, Appellant.
    Argued February 8, 1980;
    decided May 1, 1980

      POINTS OF COUNSEL

      Arthur E. Arnow for appellant.
    I. The court below directed its attention to an illusory issue which was never in controversy. II. Modification of the terms of an agreement does not mean modification of the agreement itself. III. It was never claimed, nor is it claimed now, that the Family Court has jurisdiction to modify a separation agreement. IV. The effect of divorce or separation upon the separation agreement has no bearing upon a subsequent judicial modification of its terms. V. An agreement by the parties which provided for a method for their modification of that agreement is enforceable. VI. Previously cited case law, while controlling in applicable areas, is not relevant to the basic issue before this court.

      Herman Yellon for respondent.
    I. The Family Court does not have jurisdiction to modify or reform the separation agreement entered into by the parties. (King v Schultz, 29 NY2d 718; Kaye v Kaye, 38 AD2d 753; Iseman v Iseman, 48 AD2d 809.) II. The parties to an agreement cannot confer jurisdiction upon a court that does not have jurisdiction of the subject matter. (Matter of Newham v Chile Exploration Co., 232 NY 37; Goldman v Goldman, 282 NY 296.)
   OPINION OF THE COURT

Gabrielli, J.

In this plenary action in contract brought by a wife who seeks a money judgment for arrears in support payments due her under a separation agreement, the overriding issue is the proper interpretation of a provision of the agreement. Section 23 of the agreement specifically declares that the agreement is to survive any subsequent divorce decree obtained by either party, and it further provides that although the custody, support and maintenance provisions of the separation agreement may be incorporated by reference into such a divorce decree, they are not to be merged within it. Some time following the separation, the husband obtained a bilateral Mexican divorce decree which incorporated those sections of the separation agreement but specifically declared that they were to survive the decree. Eventually, the wife deemed it necessary to seek an order of support in Family Court, Nassau County, for the $200 per week support and maintenance provided in the divorce decree pursuant to the terms of the separation agreement (see Family Ct Act, § 422, subd [b]; § 461, subd [b]; § 466, subd [c]). The husband countered with a request that the amount of support and maintenance be decreased, and, following issuance of several orders not pertinent to this appeal, Family Court ultimately decreased the amount of support and maintenance awarded by the divorce decree to $95 a week and issued a support order for that amount.

The wife then commenced this action in Supreme Court, Nassau County, seeking a money judgment in the amount of the difference between the support and maintenance payments established by the separation agreement and the reduced amount provided by the Family Court order. In response, the husband contended that pursuant to section 24 of the separation agreement, the modification by Family Court of the amount of support and maintenance due under the divorce decree served also as a modification of the separation agreement provisions pertaining to support and maintenance. Following a nonjury trial, Supreme Court ruled in favor of the husband, concluding that pursuant to section 24 of the separation agreement, the modification of the divorce decree by Family Court did in fact cause a similar modification of the separation agreement. On the wife’s appeal, the Appellate Division reversed and ordered judgment in favor of plaintiff in the amount of $19,637, which had been stipulated to be the correct amount owed the wife if the separation agreement was not modified as a result of the Family Court order. The Appellate Division concluded that even if the husband were correct in his interpretation of the agreement, enforcement of such a provision would be improper since it comprised an attempt to confer jurisdiction upon Family Court by agreement of the parties. The husband now appeals to this court as of right, pursuant to CPLR 5601 (subd [a], par [ii]). We conclude that there should be an affirmance, although for a different reason than that expressed by the Appellate Division.

Section 24 of the separation agreement provides as follows: "In the event that any court of competent jurisdiction shall hereafter, by virtue of any statute, modify the terms hereof with respect to support and maintenance, such modification shall apply to this Agreement with the same force and effect as though it constituted the original terms hereof.” The husband contends that this provision should be interpreted as meaning that if any court of competent jurisdiction modifies the alimony and child support provisions of any divorce decree subsequently obtained, such shall also serve as a modification of the support and maintenance provisions of the separation agreement. Supreme Court agreed with that interpretation and held that pursuant to that provision the support and maintenance provisions of the separation agreement had been modified as a result of the Family Court order modifying the divorce decree, and thus there existed no disparity between the provisions of the agreement and the provisions of the Family Court support order. Since the wife’s claim was premised upon the existence of such a difference, Supreme Court ruled in favor of the husband and dismissed the complaint.

The Appellate Division, on the other hand, concluded that even if that interpretation of the contract was correct, it was invalid as an improper attempt to confer jurisdiction upon the Family Court by agreement between the parties, since Family Court lacks jurisdiction to vary the terms of a separation agreement, although it may in some cases vary the terms of a divorce decree or judgment of separation (see Family Ct Act, §§ 422, 461, 466). While we agree with the ultimate result reached by the Appellate Division, we disagree with the analysis used to reach that result.

It is true, of course, that the Family Court is a court of limited jurisdiction which lacks the power to modify the terms of a separation agreement, as opposed to the terms of a divorce decree, and that this power cannot be conferred upon that court by agreement of the parties. Even as interpreted by the husband, however, the provision in issue simply does not attempt to confer jurisdiction upon the Family Court. The provision neither purports to nor could it change the jurisdiction of the Family Court. Rather, according to the husband, it provides instead that if a court with jurisdiction to modify a divorce decree into which the separation agreement has been incorporated but not merged, does so modify the support provisions of the divorce decree, then the separation agreement itself is to be modified accordingly. Rather than attempting to confer jurisdiction upon the Family Court, section 24, as interpreted by the husband, would serve merely as a mutually agreed upon means of modifying the separation agreement to accord with the changes in the divorce decree. Although the parties could not have conferred subject matter jurisdiction upon the Family Court, no public policy precludes a prior agreement to extend the effect of any Family Court decision beyond the reaches which that decision is permitted by law. Certainly Family Court could not modify the agreement; the parties could, however, voluntarily agree that any modification of the decree would also serve as a modification of the agreement. Thus, were we to agree with the husband’s interpretation of section 24, we would reverse the order of the Appellate Division and reinstate the determination of Supreme Court. As it is, however, our examination of that section precludes us from adopting the interpretation proffered by the husband.

Section 24 of the separation agreement clearly does not provide that any modification of the support provisions of the divorce decree shall also be incorporated into the separation agreement. Rather, it states merely that if any court modifies "the terms hereof with respect to support and maintenance, such modification shall apply to this Agreement with the same force and effect as though it constituted the original terms hereof’ (emphasis added). The word "hereof’ when used in a document patently refers to the document in which the term is used. Here, that document is the separation agreement. Thus, the provision speaks not to the situation in which a divorce decree is modified by a court of competent jurisdiction, but rather to the situation in which a part of the separation agreement itself is set aside by a court of competent jurisdiction (see Christian v Christian, 42 NY2d 63, supra). In the instant case, no court has ever modified the agreement, and thus the section is inapplicable to this dispute.

It has been suggested that, since the separation agreement has been incorporated into the divorce decree, section 24 of the agreement is now also a part of the decree and thus the word "hereof’ may be deemed to refer to the decree as well as to the agreement. We find such a strained interpretation of an unambiguous provision to be unpersuasive. When parts of a separation agreement are incorporated into but not merged within a divorce decree, the separation agreement continues in effect as a separate and independent contractual arrangement between the parties (Goldman v Goldman, 282 NY 296, supra; see 2 Foster and Freed, Law and the Family, § 28:53). Thus, a change in the divorce decree cannot modify the separation agreement absent a clear expression by the parties of such an intent. Even were we to agree that the term "hereof’ refers to the separation agreement incorporated within the divorce decree as opposed to the separation agreement qua contract, the result would be no different in this case since the same logic would require that the "agreement” which is to be modified accordingly must also be the agreement within the decree, rather than the agreement which survives the decree. Rather than follow such a tortuous path, we consider it preferable to construe the word "hereof’ in section 24 as a reference to the contract and not to the decree.

Nor does this interpretation of section 24 render that provision meaningless. It is, of course, true, that the courts of this State enjoy only limited authority to disturb the terms of a separation agreement (compare Goldman v Goldman, 282 NY 296, supra, with Christian v Christian, 42 NY2d, supra, at pp 71-73). Moreover, any attempt to confer upon a court of any jurisdiction within the United States broad powers to modify the terms of a separation agreement might well run afoul of constitutional limitations upon the State’s power to tamper with vested contractual rights. Courts of other nations, however, are not always so limited, and it is evident that the parties to this agreement contemplated the possibility that jurisdiction over the agreement might subsequently be asserted by foreign courts. Were it not for the existence of section 24, the enforceability in this State of any modification of the support and maintenance provisions of the separation agreement by a foreign court of competent jurisdiction would nonetheless be subject to the somewhat uncertain principles of comity. Section 24, however, makes such modifications to the agreement an effective part of the agreement in this State not because of whatever degree of respect we may bestow upon foreign judgments, but rather because the parties have elected to make any such judicial modifications a part of their agreement. As such, the enforceability of such provisions depends on general principles of contract and family law, not upon the vagaries of comity.

Moreover, our interpretation of section 24 is buttressed by an examination of section 23 of the separation agreement, which specifically declares that the support and maintenance provisions of the separation agreement are to be read into the divorce decree, but are not to be merged within that decree, and are instead to survive it. Were we to agree with the husband’s interpretation of section 24, the specific declaration contained in section 23 would be rendered ineffective, for the net result of the husband’s interpretation of section 24 would be to merge the support and maintenance provisions within the divorce decree despite the contrary mandate of section 23. We refuse to interpret section 24 in such a way as to negate the clear and unambiguous intent expressed in section 23. Hence, we conclude that the separation agreement does not provide that any modification of the support and maintenance provisions of the decree will serve to modify the agreement as well, and the wife is thus entitled to recover upon her contractual right to support and alimony as provided by the original terms of the separation agreement.

Accordingly, the order appealed from should be affirmed, with costs.

Wachtler, J.

(dissenting). The order of the Appellate Division should be reversed and the defendant’s judgment reinstated.

In 1969 the parties entered into a separation agreement. Each side was represented by counsel. The lengthy and comprehensive agreement provides, among other things, for a division of all real and personal property, support for the wife and children as well as custody. It also anticipates and provides for various contingencies. Section 23 considers the effect of a subsequently obtained divorce decree and provides for the survival of those terms relating to "property rights”, child custody, support and alimony. Section 24 deals with the effect of a court-ordered modification of the husband’s support obligation. It states: "Modification by court decree: In the event that any court of competent jurisdiction shall hereafter, by virtue of any statute, modify the terms hereof with respect to support and maintenance, such modification shall apply to this Agreement with the same force and effect as though it constituted the original terms thereof.”

The defendant husband later obtained a bilateral Mexican divorce. The support provisions of the agreement were incorporated by reference in the Mexican decree but, in accordance with section 23, were "not merged therein”. Thus the divorce decree did not alter the husband’s support obligations. The question on this appeal concerns several Family Court orders which subsequently fixed the defendant’s support obligations at a level below the amount provided in the agreement.

In 1973 the plaintiff wife petitioned the Family Court for an order directing the defendant to support in the amount fixed in the agreement. The defendant cross-moved for a modification reducing his support obligation. The cross motion was granted and the defendant was directed to pay support in an amount less than the agreement provides. A similar order was entered in 1974. On both occasions the plaintiff was represented by counsel. In neither case, however, did she appeal the Family Court’s determination.

In 1976, three years after the original Family Court order was entered, the plaintiff commenced this action in the Supreme Court to recover the difference between the amount of support paid by the defendant pursuant to the Family Court orders and the amount initially fixed in the agreement. It was claimed that by paying the lesser amount the defendant breached the support terms of the separation agreement.

Special Term entered judgment for the defendant, relying on section 24 of the agreement and the Family Court orders modifying the defendant’s support obligation. The Appellate Division reversed on the ground that the Family Court "does not have jurisdiction to modify the support provisions of a separation agreement.” (70 AD2d 613.)

For the reasons stated at Special Term the order of the Appellate Division should be reversed and the defendant’s judgment reinstated. Special Term noted, of course, that the Family Court generally lacks the power to alter the support terms of a separation agreement. It held, however, that by adopting section 24 the parties "contractually agreed to be bound by any modification of the support provisions of the subject agreement which a court of competent jurisdiction may make in futuro(92 Misc 2d, at p 120.) The court also found that this provision was enforceable, noting that the plaintiff had been represented by counsel when she signed the separation agreement and during the Family Court proceedings. In my view that determination was correct.

Special Term’s construction of section 24 is reasonable, indeed the only reasonable interpretation under the circumstances. The plaintiff has been unable to propose any alternative. The majority suggests that the section was only meant to apply when the court is asked to consider the validity of the support provisions. A court, however, may consider the validity of a clause in a separation agreement without the aid of express contractual authority (see, e.g., Christian v Christian, 42 NY2d 63). Neither can section 24 be construed as an obscure attempt to salvage the agreement in the event the amount of the support provisions are found to be invalid; the agreement already contains a standard savings clause to this effect in section 21. Thus to "interpret” section 24 as applicable only in cases involving the validity of the support provisions renders the section unnecessary, useless and, in effect, a nullity.

On the other hand to hold that section 24 represents a contractual commitment by the parties to accept a court-ordered modification of the amount of the support provisions does not render section 23 ineffective as the majority suggests. As noted the two sections are designed to meet different contingencies. Section 23 considers the effect of a divorce decree, such as the Mexican decree in this case, and broadly provides that the contractual terms relating to support, child custody and property rights should not merge in the decree or be affected by it. Section 24 more narrowly and specifically relates to decrees which only modify the amount of the support arrangements, such as the Family Court orders in this case, and expressly provides that a decree of this nature "shall apply to this Agreement with the same force and effect as though it constituted the original terms hereof.”

It is also important to emphasize that this was a negotiated agreement and that the Family Court proceedings which resulted in the modification of the support arrangements were fully litigated. Plaintiff was represented by counsel at every stage, and there is no reason in theory or on the facts of this case, why she should not be held to the terms of the agreement. A court should not, in guise of interpretation, nullify part of an agreement simply because one of the parties may have discovered, after several years, that a term originally agreed to has produced disagreeable results in practice.

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

Order affirmed.

       It does not appear from the record that any appeal was taken from the Family Court order decreasing the amount of support and maintenance awarded by the Mexican court. We note that no challenge has been made in this action to the jurisdiction of the Family Court in that proceeding, and that the propriety of that order is not at issue in the instant case (see Goldman v Goldman, 282 NY 296; cf. McMains v McMains, 15 NY2d 283; see, also, 2 Foster and Freed, Law and the Family, § 28:64). Moreover, this case does not involve any challenge to the validity of either the separation agreement (cf. Christian v Christian, 42 NY2d 63) or the Mexican divorce decree into which it has been incorporated but not merged, nor is any judicial modification of the separation agreement sought by either party (see 2 Foster and Freed, Law and the Family, § 28:63). Rather, the dispute presented in this case concerns merely the proper interpretation of that agreement. Thus, the power of a court of this State to set aside a separation agreement incorporated into but not merged within a foreign divorce decree is not at issue on this appeal (cf. Harges v Harges, 46 Misc 2d 994).

       The majority’s alternative suggestion, that the parties intended the section to be applicable in the event that a court of some foreign country should legally modify the agreement, involves a purely imaginary intent. Not even the plaintiff urges that this is what they had in mind when they included section 24 in the agreement, or that it would be proper to give the section such an esoteric meaning.


source: Caselaw Access Project

author: Fuchsberg, J. Gabrielli, J.

license: Public Domain

text:
    John V. Bowmer, Appellant, v Dorothy B. Bowmer, Respondent.
    Argued February 6, 1980;
    decided May 1, 1980

      POINTS OF COUNSEL

      Paul J. Goldberg, Michael F. Fitzgerald and Susan B. Kaufman for appellant.
    I. The court below committed error in holding that under a broad arbitration clause an arbitrator does not have the power to grant "downward modification” of support absent a specific grant of authority in the arbitration clause to do so. (Matter of Exercycle Corp. [Maratta], 9 NY2d 329; Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284; Matter of Weinrott [Carp], 32 NY2d 190; Matter of Kepp v Springville-Griffith Cent. School Dist., 55 Ad2d 1033, 43 NY2d 767; Matter of First Republic Bldg. Corp. [Gildenhorn], 20 AD2d 256; Matter of Howard & Co. v Daley, 27 NY2d 285; Matter of Long Is. Lbr. Co. [Martin], 15 NY2d 380; New York Inst. of Technology v Council of Metropolitan & Old Westbury Chs., Amer. Assn. of Univ. Professors, 47 AD2d 659; Matter of Fitzgerald [General Elec. Co.], 19 NY2d 325; Information Sciences v Mohawk Data Science Corp., 43 NY2d 918.) II. The court below erred in holding that the parties are not engaged in an arbitrable dispute and in improperly limiting the scope of an arbitrator’s power to fashion an equitable remedy. (Matter of Agora Dev. Corp. [Low], 19 AD2d 126; Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669; Matter of National Equip. Rental [American Pecco Corp.], 35 AD2d 132; Matter of Granite Worsted Mills [Aaronson Cowen, Ltd.] 25 NY2d 451; Lentine v Fundaro, 29 NY2d 382; Matter of SCM Corp. [Fisher Park Lane Co.] 40 NY2d 788; Matter of North Colonie Cent. School Dist. [North Colonie Teachers’ Assn.] 60 AD2d 496; Matter of Aimcee Wholesale Corp. [Tomar Prods.] 21 NY2d 621; Swartz v Swartz, 49 AD2d 254; Sperling v Sperling, 26 AD2d 827.) III. The court below erred in denying arbitration since it improperly considered the justiciable nature of the controversy and impermissibly interjected itself into the merits of the underlying dispute. (Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of Board of Educ. [Westmoreland Teachers Assn.] 58 AD2d 228; McMains v McMains, 15 NY2d 283; Matter of Staklinski [Pyramid Elec. Co.] 6 NY2d 159; Swartz v Swartz, 49 AD2d 254; Matter of Associated Gen. Contrs., N. Y. State Ch. [Savin Bros.] 36 NY2d 957; Matter of Ruppert [Egelhofer] 3 NY2d 576; Matter of Legislature of County of Rensselaer [Allen] 44 AD2d 628; Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Amer., 37 NY2d 91;
      Matter of Blum Folding Paper Box Co. [Friedlander], 27 NY2d 35; Matter of Bay Iron Works [Eisenstein], 17 AD2d 804.)

      Theodore Sternklar and Robert N. Chan for respondent.
    I. Mr. Bowmer’s attempt to compel Mrs. Bowmer to arbitrate his contention that the separation agreement should be amended and modified by decreasing his agreed upon support obligation must be rejected since the parties never agreed to arbitrate a party’s desire to amend the separation agreement. (McMains v McMains, 15 NY2d 283; Schmelzel v Schmelzel, 287 NY 21; Goldman v Goldman, 282 NY 296; Matter of Robinson [Robinson], 296 NY 778; Sheets v Sheets, 22 AD2d 176; Swartz v Swartz, 49 AD2d 254; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of American Silk Mills Corp. [Delaware] [Meinhard-Commercial Corp.], 38 AD2d 695, 31 NY2d 777; Matter of Silver v Pilzer, 59 AD2d 680; Braverman v Braverman, 9 Misc 2d 661.) II. Each of the contentions that Mr. Bowmer has put forth in support of his argument that an arbitrator may modify the separation agreement by reducing Mr. Bowmer’s support obligations thereunder are based either on factual assumptions unsupportable by the record or valid but irrelevant legal theories. The only issue before this court is whether Mrs. Bowmer can be compelled to arbitrate an issue she never agreed to arbitrate. (Matter of Exercycle Corp. [Maratta], 9 NY2d 329.) III. Public policy considerations in favor of an ultimate termination of matrimonial litigation and freedom to contract militate in favor of Mrs. Bowmer’s position. (Matter of Raisler Corp. [New York City Housing Auth.], 32 NY2d 274; Matter of W. M. Givran, Inc. [Robilotto], 40 AD2d 1060, 33 NY2d 425; Matter of Angel Fabrics [Cravat Pierre, Ltd.] 51 AD2d 951; Matter of Boden v Boden, 42 NY2d 210; Backer Mgt. Corp. v Amce Quilting Co., 46 NY2d 211; Breed v Insurance Co. of North Amer., 46 NY2d 351; Psychoanalytic Center v Burns, 62 AD2d 963; Garrity v Lyle Stuart, Inc., 40 NY2d 354; Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621; Matter of Knickerbocker Agency [Holz], 4 NY2d 245.)
   OPINION OF THE COURT

Fuchsberg, J.

Confronting in this case the increasingly common use of arbitration in the context of a dispute between former spouses, we hold that a separation agreement’s broadly worded arbitration clause, which additionally draws attention to matters specifically made arbitrable elsewhere in the agreement, does not confer authority upon the arbitrator to pass on the husband’s claim that changed circumstances warranted a downward modification of the agreement’s support provisions.

After nearly 17 years of marriage, in April of 1972 John and Dorothy Bowmer entered into a lengthy and detailed separation agreement which, as later incorporated but not merged in a judgment of divorce, provided for the husband’s payment of alimony and support for their three minor children pursuant to a carefully arranged formula. Its arbitration clause, numbered paragraph 17, reads in pertinent part: "Any claim, dispute or misunderstanding arising out of or in connection with this Agreement, or any breach hereof, or any default in payment by the Husband, or any matter herein made the subject matter of arbitration, shall be arbitrated”.

As the clause suggests, at various points the agreement delineated certain matters that were expressly made arbitrable, including adjustments in the support formula (upon the stated contingencies that the tax laws were amended to make support payments taxable to the husband and that the Government’s cost of living index was discontinued or its method of publication altered) and in the extent of the husband’s obligation to underwrite college costs should the parties disagree over the husband’s ability to meet them.

The present dispute had its genesis in July, 1977, when Bowmer informed his former wife that, because of changed circumstances, as of February, 1978 he would reduce his support payments by almost $1,000 per month and make no further tuition payments. She refused to accede to this plan or to his alternative informal request that they submit the question to arbitration. Thereafter, when he nevertheless unilaterally undertook to make these downward adjustments, Ms. Bowmer invoked the arbitration clause to compel him to pay the arrearages. Her former husband then commenced this proceeding to stay the arbitration she had commenced and to compel arbitration on the issues of whether he was entitled to downward modification of his monetary obligations consistent with the steps he had taken. Contemporaneously, Bowmer filed his own demand for arbitration on these and a third issue. She, in turn, cross-moved to stay the arbitration he had initiated, contending that, except for the question of his deferment of the children’s educational expenses, the issues he raised were nonarbitrable. In due course, Special Term consolidated both arbitration proceedings, denied her motion and directed that arbitration proceed on the issues Bowmer had raised.

But, on Ms. Bowmer’s appeal from so much of the order that directed arbitration on the issue of reduction in the level of support payments, the Appellate Division modified, holding that issue to be nonarbitrable (67 AD2d 8, 10). On the former husband’s appeal to us, therefore, the sole question is whether the arbitrator may properly consider the claim for downward modification on the support obligations. For the reasons which follow, we conclude he may not and, therefore, wé now affirm the order from which this appeal arises.

Arbitration clauses are by now familiar provisos in separation agreements. Indeed, aside from expressing the parties’ preference for a means of dispute resolution more informal, more expedient and possibly less costly than litigation (Matter of Siegel [Lewis], 40 NY2d 687, 689), an arbitration provision may well have been intended to furnish insulation from the potential for notoriety and other stresses that so often accompanies the airing of marital disputes in court (see Matter of Lasek v Lasek, 13 AD2d 242, 244). Moreover, resort to the arbitral forum may afford the spouses an opportunity to have their grievances heard by someone who they think may be especially well qualified in matrimonial matters. (See 1 Lindey, Separation Agreements and Ante-Nuptial Contracts, §29.)

But as with such provisions in the commercial context generally, the rule is clear that unless the agreement to arbitrate expressly and unequivocally encompasses the subject matter of the particular dispute, a party cannot be compelled to forego the right to seek judicial relief and instead submit to arbitration (see Gangel v De Groot, 41 NY2d 840, 841). Examining the clause in paragraph 17 with this precept in mind, we first observe the standard, broadly framed directive to submit to arbitration "Any claim, dispute or misunderstanding arising out of or in connection with” the agreement (see, e.g., Matter of Stone [Freezer], 280 App Div 103, affd 304 NY 649; Braverman v Braverman, 9 Misc 2d 661). However, there is more. As indicated earlier, the clause goes on to state that elsewhere in the agreement particular matters, apparently of special import to the spouses, are expressly made arbitrable. Paragraph 17 therefore seems to be something of a hybrid, containing wording ordinarily present in both broad and limited arbitration clauses; hence, we should not reflexively attribute to the parties an intention to have every possible dispute go to arbitration (cf. Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288, 291; Matter of Macy & Co. [National Sleep Prods.], 39 NY2d 268, 271).

For, though the parties might well have thought that the particularized matters were subsumed under the general arbitration language — in which case they could be understood as merely intending to emphasize the arbitrability of certain disputes — the inclusion perhaps more reasonably suggests that the spouses viewed the general language somewhat qualifiedly. This accords with the rule of construction that, in such cases, the specific provisions tend to restrict the general (see 4 Williston, Contracts [3d ed], § 624, pp 822-825). Thus, rather than place reliance on a single boilerplate proviso, the parties were careful to direct explicitly that arbitration be the remedy for several critical and foreseeable conflicts on the extent of the husband’s support obligation.

Further evidence that the arbitration clause was not intended to encompass the dispute here comes from the fact that the support provisions themselves were particularly detailed and drawn flexibly to anticipate changes in the spouses’ circumstances. Exemplifying this is the agreement’s design for a sliding scale of support payments equivalent to 50% of the husband’s gross income, but in no event less than $14,000 or more than $30,000, less an amount equivalent to one half of the wife’s gross income over $9,000. "Gross income” was itself meticulously defined and made to reflect, at least in part, the financial condition of the parties: for instance, depending on whether Bowmer’s gross income was below or above $50,000 he was either to include or exclude from that figure payments from his employer’s profit-sharing plan. On top of all this, of course, the cost of living index guaranteed a broader kind of responsiveness to economic variations.

The sense of these provisions, taken together, is to indicate that the parties gave their attention to the possibility of changed circumstances and tried to address the problem by injecting elasticity into the support formula itself. Given this and the fact that the husband’s obligation to pay for the costs of his children’s college education was expressly made modifiable under changed circumstances and specifically made the subject of arbitration, it is significant that neither the modification nor arbitrability of the more fundamental support obligation is addressed by any term of the 37-page separation agreement.

The omission becomes especially important in light of the inability of courts to effect any change in an adequate level of support fixed by a valid and unimpeached separation agreement unless it has been merged in a judgment of divorce (Goldman v Goldman, 282 NY 296, 302-304; Schmelzel v Schmelzel, 287 NY 21, 26-27; 2 Foster and Freed, Law and the Family, § 28.64). Of course, had they so intended, the parties could have agreed that the support provisions be modifiable by judicial proceedings under appropriate circumstances (see Kleila v Kleila, 50 NY2d 277; Hunter v Hunter, 57 AD2d 797). But they did not. And, although the power to alter the support provisions in a separation agreement may likewise be conferred upon on arbitrator (Matter of Robinson [Robinson], 296 NY 778; Matter of Luttinger [Luttinger], 294 NY 855), the cases so holding have involved contracts explicitly authorizing such relief (see Braverman v Braverman, 9 Misc 2d 661, supra; Storch v Storch, 38 AD2d 904; 1 Lindey, Separation Agreements and Ante-Nuptial Contracts, § 29, pp 29-13 to 29-15). Against this background — the frame of reference of the drafters of this detailed and comprehensive document — appellant’s claim that a downward modification of support "arises out of or in connection with” the terms of the agreement is hardly persuasive.

More fundamentally, what appellant seeks, in essence, is to have the arbitrator rewrite the terms of the agreement because he now views them as onerous. This cannot be considered merely a claim arising from the contract. Instead, it requires the making of a new contract, not by the parties, but by the arbitrator. Obviously, the parties never agreed to such a procedure for it would mean that, once the agreement made provision for arbitration, the arbitrator would be completely unfettered by the terms of the contract in resolving disputes. Nor is our refusal to place the power to change the support provisions within the scope of the arbitration clause to be considered an impermissible attempt to precensor the type of relief available to the arbitrator. While, as a general rule, once a controversy is properly before the arbitrator he has wide discretion in his choice of remedies (Matter of Paver & Wildfoerster [Catholic High School Assn.] 38 NY2d 669, 677), the power to formulate flexible solutions cannot be used as a bootstrap for an unpredictable expansion of the parameters of arbitral authority (cf. Garrity v Lyle Stuart, Inc., 40 NY2d 354, 359).

Appellant insists that our decision in Matter of SCM Corp. (Fisher Park Lane Co.) (40 NY2d 788) sanctions such an arbitral rewriting. However, the rationale of that case was considerably more limited. There, though holding that a landlord’s counterclaim for reformation was time-barred, we took the occasion to state that the arbitrator, acting pursuant to a broad arbitration clause, could permissibly reform the terms of a lease on the landlord’s assertion that the instrument failed to conform to the parties’ original intent (40 NY2d, supra, at pp 792-794; see International Union of Operating Engrs. v Carl A. Morse, Inc., 529 F2d 574, 580; American Home Assur. Co. v American Fid. & Cas. Co., 356 F2d 690, 692). Reformation of a contract to express what the parties in fact agreed upon has been held to be a claim which arises out of the contract, in contradistinction to modification of contract terms to reflect changed circumstances, a claim of a fundamentally different nature, which finds no basis at all in the agreement (see Matter of Agora Dev. Corp. [Low], 19 AD2d 126, 127; cf. Matter of Lipman [Haeuser Shellac Co.], 289 NY 76, 79). Pointedly, appellant nowhere suggests that by reason of accident, mistake or fraud the agreement failed to express the real intentions of the contracting parties (see Matter of Weinrott [Carp], 32 NY2d 190, 199); he seeks instead to create a wholly new contract.

The case on which appellant relies most heavily to buttress his contention that the issue of a reduction in support payments may be arbitrated is also inapposite. In Swartz v Swartz (49 AD2d 254), involving an extremely broad arbitration clause, the wife permitted her husband’s request for a downward modification of alimony payments to go before the arbitrator and not until an award had been rendered did she contest the arbitrator’s authority. Thus, Swartz’ upholding of the arbitrator’s award reducing the alimony turns largely on the court’s exercise of its narrowly limited powers to review a matter after it has been voluntarily submitted to an arbitrator (see, generally, Matter of Board of Educ. [Hess], 49 NY2d 145, 151-152). Under this standard an award may be set aside only if it is "completely irrational” (Matter of National Cash Register Co. [Wilson], 8 NY2d 377, 383) or in contravention of restrictions on the powers of the arbitrator imposed by the agreement itself (Lentine v Fundaro, 29 NY2d 382, 385).

Clearly, in this case we need not be so rigidly confined because, Ms. Bowmer having moved to stay the arbitration, we are bound to inquire whether the parties have agreed to arbitrate the particular dispute (Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co., 37 NY2d 91, 95; CPLR 7503, subd [b]). We hold that they did not (cf. Matter of Silver v Pilzer, 59 AD2d 680, 681).

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

Gabrielli, J.

(dissenting). I am impelled to dissent, for I cannot concur in the misapplication of previously well-settled principles of law to this rather simple case. The dispositive issue presented by this appeal is whether a separation agreement requiring arbitration of "[a]ny claim, dispute or misunderstanding arising out of or in connection with” the agreement authorizes arbitration of the husband’s claim that his support obligations under the agreement should be modified because of a change in circumstances. Also implicated, because of the analysis employed by the majority of this court, is whether an arbitrator’s power to grant certain requested relief may be challenged by an application to stay arbitration.

Although the factual and procedural background to this appeal is rather complex, the relevant portions thereof are readily stated. The parties entered into an unusually detailed separation agreement in 1972. That agreement contains a broad arbitration clause which provides as follows: "Any claim, dispute or misunderstanding arising out of or in connection with this Agreement, or any breach hereof, or any default in payment by the Husband, or any matter herein made the subject matter of arbitration, shall be arbitrated”. A complicated formula for determining support payments is also contained in the agreement, as is a section requiring the appellant husband to pay for the college education of the three children of the marriage if he can afford to do so. Both parties performed the agreement to their apparent mutual satisfaction for some years. Eventually, however, a dispute arose as to the amount of the payments appellant was required to make under the agreement. The parties were unable to settle the matter amicably, and appellant began to deduct from the payments he made directly to respondent an amount approximately equal to the amount of money he was paying for the children’s college tuition. Respondent then filed a demand for arbitration, seeking to recover the difference between the amounts now being paid her and the amounts supposedly due under the separation agreement. Appellant countered with his own demand to arbitrate the issue of his liability under the agreement, seeking, inter alia, a modification of the support provisions as a result of changed circumstances. Both parties sought to stay the other’s application for arbitration, and Special Term essentially concluded that the entire dispute should proceed to arbitration. On respondent’s appeal, the Appellate Division modified to the extent of staying arbitration of the appellant’s request for a modification of his support obligations under the agreement. Appellant husband now appeals to this court as of right.

It is beyond dispute that the parties to a separation agreement may agree to arbitrate disputes concerning the support provisions of that agreement (see Hirsch v Hirsch, 37 NY2d 312). Hence, the only issue in this case is whether in fact the Bowmers have so agreed. As is noted above, the agreement provides for arbitration of "[a]ny claim, dispute or misunderstanding arising out of or in connection with” the separation agreement. It is difficult to conceive of a broader declaration of arbitrability. Appellant’s claim, whether it be viewed as an attempt to modify the agreement or, more accurately, as a claim that the agreement itself impliedly contemplated modification of the support obligation by an arbitrator, certainly must fall within the purview of that wide-sweeping language. Hence, it appears evident that the instant dispute is arbitrable.

The majority, however, now concludes that this seemingly broad language does not truly mean what it says, but is instead limited in some inarticulable manner and to some uncertain extent. Unfortunately, there exists no support for such an interpretation in the language of the agreement. As noted above, the arbitration clause explicitly provides for arbitration of "[a]ny claim, dispute or misunderstanding arising out of or in connection with this Agreement, or any breach hereof, or any default in payment by the Husband, or any matter herein made the subject matter of arbitration”. The majority suggests that the provision for the arbitration of "any claim, dispute or misunderstanding arising out of or in connection with” the agreement has no real application or meaning, and that the only controversies actually made arbitrable by the agreement are those involving "any breach hereof, or any default in payment by the Husband, or any matter herein made the subject matter of arbitration”. To so hold is to simply read the opening words of the arbitration provision out of existence entirely, and that is something which a court may not do under the guise of contract interpretation. Had the parties desired to provide for arbitration of only those disputes mentioned in the latter phrases of the arbitration clause, there would have been no reason to include the broad opening words. However, that language was made an integral part of the agreement and should be given effect by the courts.

This judicial evisceration of an extremely broad arbitration provision portends a return to that outmoded and heavy-handed judicial scrutiny of arbitration agreements which I had thought this court had abandoned by its decision in Matter of Weinrott (Carp) (32 NY2d 190). Today’s decision resurrects, in new guise, the so-called "specifically enumerated” approach to arbitration clauses which we explicitly rejected in Weinrott. The effect of this decision is to render meaningless the otherwise broad provisions of any arbitration agreement in which the parties, possibly from an excess of caution, have taken the care to specify those particular types of disputes which they feared might not be covered by the general language of the arbitration agreement. I cannot concur in such an approach. It serves no valid purpose where, as here, the intent of the parties is plainly to submit to arbitration all disputes "arising out of or in connection with” the separation agreement. Rather, it will merely encourage those who wish to delay final resolution of a dispute to turn to the courts in the hope of preventing the submission to arbitration of matters clearly intended to be determined in that forum.

No more persuasive is the majority’s suggestion that the instant dispute is not arbitrable because appellant is attempting to have the arbitrator "rewrite” the agreement and not merely interpret it. Initially, I note that there exists no reason why two persons may not enter into an agreement authorizing an arbitrator to modify the terms of that agreement upon the application of one of the parties. Any objections to the concept of an arbitrator "rewriting” a contract for the parties stems not from some evil inherent in the idea itself, but rather from the more general doctrine that, at least in the area of consensual arbitration, a party may be bound by the decision of an arbitrator only to the extent that he has agreed to be bound. Normally, the parties to an agreement will not wish to confer upon an arbitrator the power to modify their agreement, and it is for that reason that the arbitrator will lack the power to "rewrite” the agreement. Such objections, however, pertain not to the arbitrability of a dispute, but rather to the power of the arbitrator to provide certain relief, and as such may only be raised by application to vacate an award, not by application to stay arbitration (compare CPLR 7503, with 7511; see Board of Educ. v Barni, 49 NY2d 311).

That the instant application to stay involves no more than a premature contention, that the arbitrator will exceed his power is shown by the fact that regardless of the outcome of this appeal, arbitration will proceed on the question of appellant’s obligations under the contract. The only effect of this proceeding can be to limit the range of remedies which the arbitrator may employ in an attempt to resolve the dispute between the Bowmers. The expenditure of so much time and effort merely to inform an arbitrator in advance of arbitration that he may not grant certain requested relief is hardly consistent with the function of arbitration as an inexpensive and swift alternative forum. Moreover, it serves to take from the arbitrator the power to determine, at least in the first instance, the range of remedies authorized by the agreement, and creates yet another preliminary inquiry to be made by the. courts before ordering arbitration.

Accordingly, I vote to reverse the order of the Appellate Division and reinstate the order of Supreme Court.

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

Order affirmed, with costs.

      . Petitioner asserted that it was no longer economically feasible for him to meet the support obligations in the agreement because his second wife was no longer employéd and because, with all three children in college, the additional payments for educational expenses had grown to $12,000 per year.

      . In his demand, Bowmer also sought to direct the sale of the marital abode, reading the agreement as permitting his former spouse to reside there only while the children, then attending college away from home, lived there on a full-time basis. Although Ms. Bowmer unsuccessfully contested the arbitrability of this issue below, it was not appealed to the Appellate Division.

      . The separation agreement specifically provided: "If the Husband is of the opinion that he cannot afford to pay for the [college] education of a particular Child, and if the Wife does not agree with his alleged inability to do so, she shall have the right to have the matter arbitrated, pursuant to Article '17’ of this Agreement”.

      . Paragraph 17, in fact, seems to have been taken almost verbatim from a sample arbitration clause that appears in Lindey, Separation Agreements and Ante-Nuptial Contracts (Vol 1, Form 29.04).


author: Fuchsberg, J. Jones, J.

text:
    The People of the State of New York, Respondent, v Charles James Briggins, Appellant.
    Submitted February 13, 1980;
    decided May 6, 1980

      POINTS OF COUNSEL

      Carmine J. Perrotta for appellant.
    The Suffolk County jury selection procedure deprived defendant-appellant of his right to a fair trial. (Taylor v Louisiana, 419 US 522; Strauder v West Virginia, 100 US 303; Ballard v United States, 329 US 187; Hernandez v Texas, 347 US 475; Thiel v Southern Pacific Co., 328 US 217; Brown v Allen, 344 US 443; Hill v Texas, 316 US 400; Peters v Kiff, 407 US 493; Cobbs v Robinson, 528 F2d 1331.)

      Patrick Henry, District Attorney (Vincent A. Malito of counsel), for respondent.
    The jury array selection process in Suffolk County is lawful. (Taylor v Louisiana, 419 US 522; People v Parks, 41 NY2d 36; People v Chesler, 91 Misc 2d 551; People v Attica Bros., 79 Misc 2d 492; People v Goodman, 92 Misc 2d 927; United States v Fernandez, 480 F2d 726.)
   OPINION OF THE COURT

Fuchsberg, J.

This criminal case treats with the law of forgery in circumstances involving the use of an assumed name. It comes to us on an appeal from an order of the Appellate Division, which affirmed a judgment entered upon a verdict convicting the defendant, Charles Briggins, on two counts of criminal possession of a forged instrument in the second degree (Penal Law, § 170.25). The acts on which these were based involved his use of the name Garry Morris, both to secure a temporary motor vehicle operator’s permit and to apply for a permanent license. For the reasons which follow, we believe that under the circumstances these documents were not the products of forgery within the contemplation of the statute and that, since a finding that they were was essential to the vitality of the charges on which defendant was found guilty, the convictions must fall.

Some factual recitation will aid our exposition. According to the uncontradicted testimony, Briggins, a Long Island resident whose regular occupation was that of New York City police detective, for reasons best known to himself was intent on keeping his supplemental earnings as a part-time clothing salesman from his wife. As he informed the jury, it was to that end that he adopted the additional name Garry Morris and associated with it the address of a co-operating friend. Among other things, he opened a checking account at the Long Island Trust Company under this identity. And, as it happened, it was three checks totaling $261.91 which he drew on that account, each to the order of a different storekeeper in payment for purchases he made át a Suffolk County shopping center, that eventuated in the prosecution and conviction now before us.

For, as defendant was leaving with the merchandise he had bought, he was accosted by a Suffolk County police officer, who, in his own off-duty employment, worked for the center as a security guard. This interception appears to have been precipitated by a complaint from one of the merchants who became suspicious of the defendant when, on further scrutiny of the check he had accepted, mistakenly as it turned out, thought that the blank on which it was made was a photostat rather than an original. In any event, the enusing confrontation between the two officers, in the course of which the defendant questioned the guard’s authority and resisted a demand that he surrender his purchases, turned out to be anything but peaceful. In short order, a scuffle had taken place, defendant was arrested, it was disclosed that his family name was Briggins rather than Morris, the driver’s permit and application were seized and, in due course, a multicount indictment on a host of theories was returned against him. All but the two with which we are here concerned having long since gone by the board, we now examine the scope of the term "forged instrument” as it is found in article 170 of the Penal Law.*

On that score, we first note that the statutes define the felony of criminal possession of a forged instrument in the second degree to include the utterance or possession of a written instrument issued by or filed with a public office, public servant or government agency "with knowledge that it is forged and with intent to defraud, deceive or injure another” (Penal Law, § 170.10, subds 2, 3; § 170.25).

In breaking down this definition into its components, we read the phrase "written instrument” clearly to embrace the temporary permit and license application defendant procured and possessed. For the statute leaves no room for conjecture, expressly including "any * * * written or printed matter * * * used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person” (Penal Law, § 170.00, subd 1). It can hardly be denied that the license is a "symbol” of the holder’s "right” to drive, that the application records the information needed by the motor vehicle authorities to issue a license and that each is issued by or filed with a public office. (Accord People v Campisi, 82 Misc 2d 254.)

So narrowed, the question then becomes whether the instruments were forgeries. The search for the answer to that query well may start with section 170.00 of the Penal Law, under which the concept of a forged instrument includes one that is "falsely made”, words which the section informs us are intended to cover a paper "which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof’ (subds 4, 7). On its face this language appears to fit the garden variety of forgery, as when, for instance, the signature of the drawer of a check or the grantor of a deed has been counterfeited.

In signing the name Garry Morris, however, the defendant did not simulate, alter, erase or obliterate someone else’s signature. Instead, in handwriting that was undisguised, he merely used his adopted name, as a Samuel Clemens may have used the name Mark Twain or a Mary Ann Evans that of George Eliot. Nor did he do anything directly or indirectly to suggest that anyone but he was the "ostensible” signer and applicant or, for that matter, that the name Garry Morris was other than his own. In short, he did nothing that would cause one who relied on the instruments to believe that Garry Morris was the name of someone else, real or "fictitious”. Rather, he was unswerving in painting himself as the "ostensible maker or drawer”. Nevertheless, the People, insisting that the name Garry Morris must be regarded as "fictitious” within the intendment of the statute, would have us hold that defendant’s position is indistinguishable from that of one who has counterfeited a signature. Neither the history of the common law of forgery nor the logic of its present statutory formulation supports this argument.

The forged character of a document does not depend so much on whether it contains a falsehood, but on whether, on its face, it misrepresents its authenticity. To illustrate, suppose one other than the owner of real property unauthorizedly affixes the latter’s signature to a conveyance of title. The false signature then constitutes the deed a forgery since it, at least impliedly, represents that the instrument is genuine. But suppose the deed, though in fact signed by the grantor, materially misdescribes the parcel’s metes and bounds or mendaciously denies the existence of encumbrances. Then, whatever support the misrepresentation may give to a claim of fraud, a prosecution for forgery would not lie. (See, generally, Williams, Forgery and Falsity, 1974 Grim L Rev 71; Perkins, Criminal Law [2d ed, 1969], pp 342-346; cf. People v Levitan, 49 NY2d 87.)

That is not to say that the signing of one’s own name to an instrument cannot be a forgery. While generally it is not illegal per se to adopt an alias or a nom de plume, freedom to do so reaches its limits when the practice is accompanied by a fraudulent design (see Ann., 49 ALR2d 852; 2 Wharton, Criminal Law [Anderson ed, 1957], § 630).

Let us take the case of a check drawn in the maker’s assumed name and indorsed, as payee, in his original name. This item is "falsely made” because any person to whom it is negotiated would assume that the maker is a party distinct from the payee. The reason it is punished as forgery is that others might expect that this third party existed and that his credit would stand behind the instrument along with that of the payee (see Hubsch v United States, 256 F2d 820, 823; Comment, 37 NC L Rev 200, 204). The facts being to the contrary, i.e., the existence of an additional person being a "fiction”, the result is that " 'the instrument * * * must be a false instrument in itself” (Dunn’s Case, 1 Leach CC 59, quoted by Lehman, J., in International Union Bank v National Sur. Co., 245 NY 368, 374 [forgery committed through fraudulent use of assumed names as drawers of checks and original name as their payee]).

It is readily apparent that section 170.00, in deeming an instrument not "an authentic creation of its ostensible maker” when that maker is "fictitious” (subd 4), continues to reflect the thinking that emanates from these decisions and commentaries. Specifically, as suggested earlier, the manner in which defendant used the appellation Garry Morris falls without the statutory definition. For one thing, when an individual signs a name to an instrument and acknowledges it as his own, that person is the "ostensible maker”. Consequently, Charles Brig-gins was the ostensible maker of the license application, and he was certainly not fictitious. For another, this distinction is reinforced by the statute’s failure to proscribe mere use of a "fictitious name”.

While the name Garry Morris was fictitious in the sense that it was not the one the defendant received at birth, in none of the dealings described at trial did he ever seek to disassociate himself from it or to deny that he was the person to whom it referred. And, whatever the benefit or convenience he believed its use afforded him, there is no showing that he employed it as an instrument with which to unfairly impose on others. In other words, given the law’s general acquiescence in the use of an alter idem, be it for business, professional, theatrical or personal reasons, we cannot conclude that defendant’s consistent representation that the assumed name was his own manifested any "intent to defraud, deceive or injure another” (Penal Law, § 170.25). From all this we do not imply that a fraudulent use of a fabricated identity —i.e., a misrepresentation that a fictitious name refers to someone other than its creator — could not sustain a conviction for forgery, or, as charged here, possession of a forged instrument. Rather, we simply hold defendant’s conduct was devoid of that character.

This analysis does not depend on a hypertechnical consideration of the statutory language. The distinction between a fictitious name and a fictitious person is one well recognized by legal scholars (see, e.g., Williams, Forgery and Falsity, 1974 Grim L Rev 71, 75-77). Moreover, we have recently reaffirmed the importance of closely scrutinizing the facts of forgery cases to mark whether an "ostensible maker” and an "actual maker” are or are not separate entities (People v Levitan, 49 NY2d 87, supra).

Finally, far from suggesting radical alterations in the law, the legislative history describes the goal of the most recent reformulation of the forgery sections as no more than "condensation, clarification, and elimination of repetition and ambiguity” (NY Legis Doc, 1962, No. 41, p 17; see, also, NY Legis Doc, 1964, No. 14, p 24; Proposed NY Penal Law, Commission Staff Notes [Thompson Co., 1964], pp 360-361). In the same vein, it is instructive that a proposed amendment to the definition of "falsely make” that would have overruled the time-honored treatment of fictitious names was rejected by the Legislature (see NY Legis Doc, 1966, No. 28, p 42).

In sum, the proof in this case was insufficient to establish that the motor vehicle credentials which defendant applied for and obtained under his assumed name were forgeries. Accordingly, respect for the fundamental principle that a person cannot be found criminally liable for conduct which does not constitute a crime compels reversal of the order of the Appellate Division and dismissal of the indictment (see People v Case, 42 NY2d 98).

Jones, J.

(concurring). I am in agreement that defendant’s conviction must be vacated and the indictment dismissed. There is no evidence in this record that defendant’s scheme to conceal his own identity in establishing a checking account in the name of "Garry Morris” and using checks drawn on that account for the purchase of merchandise was either undertaken or executed "with intent to defraud, deceive or injure another” as required for a conviction under section 170.25 of the Penal Law. It appears to have been defendant’s purpose to conceal the transactions in question from his wife. Nothing suggests, however, that defendant had any intention other than to make timely and full payment for all merchandise purchased. In an abstract sense it may be said that the scheme was intended to "mislead” but not for the purpose of leading another into error or to disadvantage. The verb "deceive” is not to be read in isolation, but must, in the context in which it appears, be read to connote a fraudulent or injurious purpose.

Inasmuch as there is here no proof of fraudulent intent, I find no occasion to analyze the particulars of the scheme employed by defendant and could not accept any implication that were the same means utilized for a fraudulent purpose they might not support a conviction for criminal possession of a forged instrument in the second degree.

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

Order reversed and the indictment dismissed.

      . The events surrounding the indictment became a local cause celebre, which saw the departmental disciplining of a second Suffolk County police officer for misappropriating $50 from the defendant when the latter was brought to the police station, a brutality complaint filed by the defendant against the Suffolk County police, a suit by the arresting officer against the defendant for "defamation of character”,' and a further suit for damages by the defendant against the county. The indictment’s 13 counts, aside from those relating to the motor vehicle papers, incorporated, inter alia, ones for assault, forgery of the checks given to the merchants under the Garry Morris signature, larceny of the merchandise purchased with these checks, and for possession by him of four checks drawn to the order of Garry Morris. The three counts of forgery were dismissed by the trial court. Save for the motor vehicle counts, the jury found defendant innocent on all the rest.

      . Defendant also presses a contention, rejected on the merits by a divided Appellate Division, that the method of seclection of the array from which his jury was chosen was not calculated to produce a fair cross section of the populace of Suffolk County in that it allegedly excluded nondrivers, blacks and persons between 18 and 20 years of age. In view of our disposition of the forgery issue, we have no occasion to reach this point.

      . People v Sansanese (17 NY2d 302), on which the defendant places particular reliance to support an argument to the contrary, is not persuasive authority in this context. Although it too involved a driver’s license, it was decided under the old Penal Law, which did not contain the specific definitions now in effect.

      . The quote from Dunn’s Case continues: "and that if a person give a note entirely as his own, his subscribing it by a fictitious name will not make it a forgery, the credit there being wholly given to himself, without any regard to the name, or any relation to a third person”. The trial court’s dismissal of the three counts founded on the checks the defendant issued at the shopping center would be consistent with this rationale.

      . The People, though recognizing that their case might be strengthened by evidence that defendant ever used the name Garry Morris as anything other than his own or that he sought to trade on the credit of another person who carried that name, concede in their supplemental brief that they "did not prove, that the appellant actually knew a real person named Garry Morris.”

      . This proposal would have added to subdivision 4 of section 170.00 of the Penal Law the following language: "When a written instrument does not purport to be the act of a person other than the actual maker or drawer thereof but is made or drawn by the latter not in his true name but in a fabricated or assumed name, the 'ostensible maker’ thereof is 'fictitious’ and is no less so because some other person rightfully bearing that name happens to be in existence.” By focusing on the use of an assumed name nonetheless acknowledged by the actual maker, this provision would appear to have been structured to criminalize a defendant’s scheme to create a new identity no matter how innocent its purpose.


text:
    The People of the State of New York, Respondent, v Richard Lee Dawson, Appellant.
    Argued March 25, 1980;
    decided May 6, 1980

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for appellant.
    The conduct of the prosecutor denied appellant a fair trial. (People v Steinhardt, 9 NY2d 267; People v Fielding, 158 NY 542; Berger v United States, 295 US 78; People v Canty, 31 AD2d 976; People v Alicea, 37 NY2d 601; People v Patterson, 39 NY2d 288; La Rocca v Lane, 37 NY2d 575; People v Arthur, 22 NY2d 325; People v McLucas, 15 NY2d 167.)

      Lawrence T. Kurlander, District Attorney (Kenneth R. Fisher of counsel), for respondent.
    I. The cross-examination of defendant’s witnesses was primarily wdthin the trial court’s discretion; those few improper questions did not affect the substantial rights of defendant. (People v Wise, 46 NY2d 321; People v Knox, 71 AD2d 41; People v Brown, 62 AD2d 715; People v Hamlin, 58 AD2d 631; People v Smoot, 59 AD2d 898; People v Milano, 59 AD2d 852; People v Mims, 59 AD2d 769;
      People v Clark, 64 AD2d 669; People v Colarco, 68 AD2d 430.) II. Issues presented relative to the prosecutor’s summation were not preserved for review and his comments were not of constitutional dimension because they were drawn from specific evidence. (People v Williams, 46 NY2d 1070; United States ex rel. Perry v Mulligan, 544 F2d 674; People v Lombardi, 20 NY2d 266; People v Shanis, 36 NY2d 697; People v Brosnan, 32 NY2d 254; Houston v Estelle, 569 F2d 372; Donnelly v De Christoforo, 416 US 637; United States ex rel. Haynes v McKendrick, 350 F Supp 990, 481 F2d 152; United States v Franklin, 568 F2d 1156, 435 US 955; United States ex rel. Clark v Fike, 538 F2d 750, 429 US 1064; People v Marks, 6 NY2d 67, 362 US 912.)
   OPINION OF THE COURT

Gabrielli, J.

Following a trial by jury in the Monroe County Court, defendant Richard Lee Dawson was found guilty of the crimes of sodomy in the first degree (Penal Law, § 130.50), attempted rape in the first degree (Penal Law, §§ 110.00, 130.35), robbery in the second degree (Penal Law, § 160.10), grand larceny in the third degree (Penal Law, § 155.30) and assault in the second degree (Penal Law, § 120.05). His conviction was affirmed, without opinion, by the Appellate Division, Fourth Department. On appeal to this court, defendant now contends that his conviction should be reversed because the District Attorney improperly cross-examined a number of defense witnesses regarding their failure to come forward with exculpatory information prior to trial. The instant appeal thus requires us to consider a question which has produced a divergence of opinion among the Justices at the Appellate Divisions: whether and under what circumstances a District Attorney may use a defense witness’ prior silence as a basis for impeachment.

The charges in this case arose out of a single incident in which defendant allegedly accosted a woman in an enclosed parking lot at about 3:30 p.m. on the afternoon of April 15, 1975, forced her to perform an act of oral sodomy and, finally, drove away in her car. The car was later found by the police, apparently abandoned, in a parking lot adjacent to the building in which defendant worked. Fingerprints which allegedly matched those of defendant were found on the rearview mirror inside the automobile.

The identity of the complaining witness’ assailant was the most hotly contested issue at trial. The complaining witness described her attacker as a black male, about defendant’s height with a bushy "afro” and a red tint to his hair. She also stated that he was wearing a blue, knee-length coat. A parking lot attendant who had witnessed a part of the incident testified that the man he saw driving off with the victim’s car sported a bushy "afro”, but he further stated that the man may have had lighter skin than defendant. Another witness, who attended school with defendant, stated that, on the day in question, he had seen defendant wearing a blue, knee-length jacket resembling the one described by the victim. Finally, three police officers testified that defendant had worn his hair in a bushy "afro” with a reddish tint during the spring of 1975.

Defendant, testifying in his own behalf, denied having committed the crimes charged, asserting instead that he had been at home babysitting for his foster brothers on the afternoon of the assault. This alibi was confirmed by both of his parents, who testified that defendant’s father had picked him up at about 2:30 p.m. and had driven him home that day so that he could look after his foster brothers while they went out to do some family errands. When they arrived home at about 4:00 p.m., according to defendant’s parents, they found defendant cooking and tending to his brothers, exactly as they had left him. Additional confirmation of this alibi was supplied by defendant’s aunt, who testified that she had called defendant’s house at 3:17 p.m. on April 15, 1975 and that defendant had answered the telephone at that time.

In order to offset the damaging effect of the presence of his fingerprints inside the victim’s car, defendant further testified that he and the victim had been friends for some time and had met in her car on several occasions. Neptune Bembry, an acquaintance of defendant, supported this testimony by stating that he had seen defendant and the victim together and holding hands on at least one occasion. Finally, a second parking attendant who worked at the garage where the incident occurred testified on behalf of defendant. He testified that the man he had seen driving away in the victim’s car on the day in question did not resemble defendant.

The District Attorney vigorously cross-examined each of these witnesses in an effort to shake defendant’s alibi. Among a host of other questions, each witness was asked whether he or she had come forward and given the same information to law enforcement officials after learning that defendant had been arrested for the crimes charged. In each instance, the witness answered in the negative and gave some brief explanation for his or her prior silence.

Defendant now seeks to have his conviction overturned on the ground that such questioning constituted prosecutorial misconduct and a denial of his right to a fair trial. We note, however, that objection was made to the District Attorney’s questioning on cross-examination on only three occasions. On one of these occasions, the court sustained the objection. Another time, the court directed the District Attorney to rephrase the question before the witness had the opportunity to respond. On neither of these occasions did defetise counsel request a curative instruction nor otherwise express any dissatisfaction with the adequacy of the court’s ruling. Consequently, these two objections were not preserved for appellate review (CPL 470.05, subd 2). It was only during the cross-examination of defendant’s mother, Lydia Dawson, that defense counsel’s objection was overruled and the District Attorney was permitted to proceed with his line of questioning. It is this colloquy which we now have occasion to review:

"Q. Did you yourself ever go to the Grand Jury of the County of Monroe and tell them the story you told us?

"DEFENSE COUNSEL: Objection.

"A. I don’t know anything about the Grand Jury.

"THE COURT: Just a minute.

"DEFENSE COUNSEL: Objection, Your Honor. There is no legal responsibility even for the defendant or for his mother to attend the grand jury proceedings. * * *

"DISTRICT ATTORNEY: I am not asking about legal responsibilities, all I am asking [is] if she did go to the grand jury.

"THE COURT: Overruled.

"Q. You may answer.

"A. This is the first time I seen the grand jury. I don’t know anything about the grand jury.

"Q. Did you ever go to the police and tell them this story that you told us about your son’s activities on April 15, 1975?

"A. I never talked to anybody about the thing.

"Q. So today was the first time you really told your story?

"A. I never got involved with the police or anything”.

Before considering the merits of defendant’s specific contentions, we deem it necessary to make some preliminary observations concerning the propriety of this type of questioning in view of the apparent conflict on the issue that exists among the Appellate Divisions. The Second Department, for example, consistently has taken the position that it is error to permit the District Attorney to question a defense witness concerning his prior silence (People v Butler, 67 AD2d 950; People v Altman, 63 AD2d 684; People v Cox, 61 AD2d 1035; People v Lindsay, 61 AD2d 992; People v Wilson, 60 AD2d 920; People v Smoot, 59 AD2d 898; People v Mims, 59 AD2d 769; People v Hamlin, 58 AD2d 631), particularly where the questioning is not followed by appropriate limiting instructions to the jury (People v Clark, 64 AD2d 669). The rationale underlying this position has been stated as follows: "The law is clear that the prosecution may not comment upon the postarrest silence of a defendant and that a defendant has no obligation, when in custody, to tell either the police or the District Attorney that he has an alibi or other exculpatory defense. * * * Likewise, an alibi witness has no obligation to come forward and contact the police or the District Attorney; such silence by an alibi witness may not be used as a means of discrediting the witness, either upon cross-examination or during the People’s summation” (People v Smoot, supra, at p 899). The First Department, on the other hand, has developed what might be termed a compromise position, holding that an alibi witness’ prior silence may be used for impeachment purposes, provided that the District Attorney does not suggest through his questioning that the witness is unworthy of belief because he breached a supposed civic duty to come forward (People v Burgos, 69 AD2d 783; People v Colarco, 68 AD2d 430; People v Maschi, 65 AD2d 405, revd on other grounds 49 NY2d 784; People v Brown, 62 AD2d 715, aifd on other grounds 48 NY2d 921; but see People v Nolasco, 70 AD2d 549; People v Milano, 59 AD2d 852). A similar approach has been adopted in the Fourth Department (People v Knox, 71 AD2d 41; People v Keller, 67 AD2d 153).

We note at the outset that we agree in principle with the general proposition, advanced in many of the Appellate Division decisions, that, absent a specific legislative directive, a citizen ordinarily has no legal obligation to volunteer exculpatory information to law enforcement authorities. Indeed, even if the existence of such an obligation were compatible with our system of government, it could not form the basis of a meaningful rule of law, since the difficulties involved in enforcing the duty could prove to be insurmountable (cf. United States v New York Tel. Co., 434 US 159, 175-176, n 24). In the absence of any such legal duty, the decision whether to volunteer exculpatory information to the police regarding a particular suspect must remain a matter of individual conscience and private choice. Accordingly, it would be improper for a District Attorney to suggest through his questioning that a witness has a flawed moral character or is generally unworthy of belief solely because he or she failed to come forward prior to the trial.

It does not necessarily follow, however, that an individual’s previous silence may never be used as a basis for impeaching his testimony at trial. Whether or not a private citizen has a legal obligation to volunteer information, there exists a wide variety of situations in which the natural impulse of a person possessing exculpatory information would be to come forward at the earliest possible moment in order to forestall the mistaken prosecution of a friend or loved one. In such situations, the failure to speak up at a time when it would be natural to do so might well cast doubt upon the veracity of the witness’ exculpatory statements at trial. In effect, in these situations, the witness’ previous silence is a form of conduct that may be analogized to a "prior inconsistent statement” by the witness. As has been observed by one noted commentator, "[a] failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the nonexistence of the fact. * * * There may be explanations, indicating that the person had in truth no belief of that tenor; but the conduct is 'prima facie’ an inconsistency” (3 Wigmore, Evidence [3d ed], § 1042, p 733). And, of course, it is well established that an inconsistency in a witness’ prior conduct or statements may be used as a means of impeaching his testimony at trial (People v Wise, 46 NY2d 321; see Richardson, Evidence [10th ed — Prince], § 501).

True, we have had occasion in some of our prior decisions to resort to the concept of a "duty to speak” in connection with our analysis of the admissibility of a defendant’s prior silence in the face of an accusation by law enforcement authorities. In People v Rutigliano (261 NY 103, 107), for example, we noted that a defendant’s silence while in custody cannot be used as evidence in chief at his trial because "[h]e is then under no duty to speak”. Similarly, in People v Christman (23 NY2d 429, 433), we stated that a comment in the prosecutor’s summation regarding the defendants’ failure to assert their alibi at the time of their arrest was improper because "[defendants were under no obligation when questioned after arrest to say anything or lay out an alibi” (see People v Mleczko, 298 NY 153; see, also, People v Bianculli, 9 NY2d 468; People v Travato, 309 NY 382). The use of the term "duty to speak” in these cases, however, cannot be understood without reference to its background.

At one time in our law, a defendant’s silence in the face of an accusation was, although hearsay, fully admissible against him at trial under certain circumstances as an "adoptive” or "tacit” admission (Fisch, New York Evidence [2d ed], § 792; McCormick, Evidence [2d ed], § 161; see People v Allen, 300 NY 222, 225; People v Koerner, 154 NY 355, 374). The rule was stated in Kelley v People (55 NY 565, 571) as follows: "Where an individual is charged with an offence, or declarations are made, in his presence and hearing, touching or affecting his guilt or innocence of an alleged crime, and he remains silent when it would be proper for him to speak, it is the province of a jury to interpret such silence, and determine whether his silence was, under the circumstances, excused or explained * * * [SJilence under such circumstances is but an implied acquiescence in the truth of the statements made by others, and thus presumptive evidence of guilt” (emphasis supplied).

This rule fell into disfavor, however, in part because it led to the possibility of manufactured evidence and, more importantly, because it seemed to conflict with the right of the accused to remain silent in the presence of his accusers (see Fisch, New York Evidence [2d ed], at p 462; McCormick, Evidence [2d ed], at pp 353-354; cf. Miranda v Arizona, 384 US 436, 468, n 37). Accordingly, the courts were enjoined to use extreme care to ensure that admissions by silence were used only in those circumstances in which their probative value could not be assailed on logical grounds (e.g., People v Lewis, 238 NY 1, 5; People v Conrow, 200 NY 356, 367; People v Cascone, 185 NY 317; People v Kennedy, 164 NY 449; People v Koerner, 154 NY 355, supra; People v Willett, 92 NY 29). Finally, in People v Rutigliano (supra, at p 107), the court adopted the so-called "Massachusetts rule”, which entirely precluded the use of a defendant’s silence while in custody as evidence in chief. In so doing, the court stated (at p 107): "No cautious person, when in custody, accused of crime would care to enter into a discussion of his guilt or innocence with his captors * * * when what he said might be used against him. It cannot be said that 'the declaration was [in such circumstances] in substance a challenge to [him] to assert [his] innocence if [he] were not guilty’ * * * He is then under no duty to speak and his silence should not be counted as giving assent to what he hears. If he had counsel, he would doubtless be advised not to talk. If he had not, he should not be prejudiced thereby” (quoting Kelley v People, supra, at p 573; substitutions in original; emphasis supplied).

Although the court used the term "duty to speak” in Rutigliano, it is evident from the context that the term was used only to negate the concept advanced in Kelley that it was "proper” or "natural” for a defendant to speak under such circumstances. In effect, the notion that a defendant in custody is under "no duty to speak” was really only another way of saying that it is neither natural nor expected that he should speak when faced with his accusers and that, therefore, his silence in that context has no probative worth. Indeed, our recent decision in People v Conyers (49 NY2d 174) speaks directly to this principle. In Conyers, we held that a defendant’s silence at or after the time of his arrest may not be used to impeach his testimony at trial. Although we relied upon modern principles of due process in reaching that conclusion, we stressed, as an alternative rationale (id., at p 181, n 2), that a defendant’s silence in the presence of his accusers is of such low probative value that its usefulness as impeachment evidence must be deemed to be outweighed by the due process considerations which militate against its use.

The due process considerations that concerned us in Conyers, of course, have no bearing when the People seek to use the prior silence of a witness who is not involved in the crime to impeach that witness’ testimony at trial. Naturally, we remain concerned with the probative value of such silence, but, again, the analysis utilized in Rutigliano and its progeny is not pertinent. A dedendant’s silence is not probative for the simple reason that he is neither required nor expected to speak when confronted with his accusers. Moreover, the inferences which may be drawn from his silence may be highly prejudicial. The same cannot always be said for an ordinary witness who may have no personal stake in remaining silent and who, indeed, may very well have a personal interest in speaking up in order to aid the defendant. It is this interest in speaking up which, in a given case, may render the witness’ failure to do so of probative worth when used to impeach his or her testimony.

Thus, there is nothing inherently improper about cross-examining a defense witness concerning his failure to come forward at an earlier date. Assuming a proper foundation has been laid, the information elicited during this type of questioning might well aid the trier of fact in its effort to determine whether the testimony of a defense witness is an accurate reflection of the truth or is, instead, a "recent fabrication”.

To be sure, there may be explanations for the witness’ prior silence which are entirely consistent with the witness’ position at trial. Some individuals, for example, may routinely avoid contact with law enforcement authorities out of an ingrained sense of fear or mistrust of officialdom (see People v Conyers, 49 NY2d 174, 182, supra). Others may refrain from volunteering information to the police or the District Attorney because they believe that their efforts to exonerate the suspect would be futile (see People v Colarco, 68 AD2d 430, supra [Sandler, J., dissenting]). Finally, some may remain silent because they were explicitly instructed to do so by the defendant’s attorney. That such alternative explanations for a witness’ silence may exist in a given case, however, does not provide an adequate ground for adopting a per se rule and excluding this type of questioning entirely in criminal prosecutions. As is true in any instance in which impeachment evidence is offered, the trier of fact may reasonably be expected to weigh the available information and determine for itself whether the witness’ trial testimony is consistent with his prior behavior and assertions. Just as we have recognized that there are a variety of factors which may account for the witness’ prior silence, the average juror may be expected to discern the existence of the same factors and credit or discount the witness’ testimony in accordance with his perceptions. Moreover, the witness or the party for whom he was sworn always remains free to explain the witness’ prior conduct or attempt to reconcile it with the witness’ present testimony (see Larkin v Nassau Elec. R.R. Co., 205 NY 267, 270-271). This may be accomplished either directly through the witness’ responses to the District Attorney’s questions or indirectly through questioning by defense counsel on redirect examination.

In summary, although the fact of a witness’ prior silence may be of low probative worth in many cases (cf. People v Conyers, supra, at pp 181-182), we see no sound reason flatly to prohibit this type of cross-examination of a defense witness in all criminal proceedings. Nevertheless, because the constitutional guarantees of due process of law, as well as the right to a fair trial, are implicated (US Const, 6th Arndt; NY Const, art I, § 6), we think it advisable to add a few cautionary comments. As is true with any form of cross-examination, the Trial Judge must exercise his sound discretion in cases such as this to ensure that the jury is not misled by the District Attorney’s efforts to impeach the credibility of a defense witness’ testimony (cf. People v Alicea, 37 NY2d 601, 605). Additionally, the Trial Judge should inform the jurors, upon request, that the witness has no civic or moral obligation to volunteer exculpatory information to law enforcement authorities and that they may consider the witness’ prior failure to come forward only insofar as it casts doubt upon the witness’ in-court statements by reason of its apparent inconsistency. Finally, when such questioning begins, the Trial Judge should call a bench conference to ascertain whether the witness refrained from speaking under the advice of defense counsel, for in such a case examination on the issue of the witness’ postconsultation silence would be improper and could well result in a mistrial (cf. People v Conrow, 200 NY 356, 367, supra).

In a related vein, the District Attorney’s obligation to rise above mere partisan advocacy and to conduct the trial in a manner consistent with the defendant’s due process rights cannot be overlooked (see People v Steinhardt, 9 NY2d 267; People v Fielding, 158 NY 542). As a practical matter, this means that the District Attorney must act in good faith when he questions a defense witness about his prior failure to come forward. Particularly suspect are questions concerning the witness’ failure to tell the Grand Jury what he knew about the defendant’s role in the crime. The witness, practically speaking, would have had no occasion to tell his story to the Grand Jury unless he had been summoned to appear before it, and, thus, no inference could properly be drawn from his failure to speak in that context. Accordingly, since the District Attorney is usually in control of the Grand Jury proceedings and is, further, aware of whether a particular witness was summoned to appear, a question by the District Attorney concerning a defense witness’ failure to speak before that body should ordinarily be considered improper if the witness was not actually called upon to appear. Of course, an isolated impropriety of this nature may be cured, in many cases, by an appropriate admonition addressed to the jury upon the request of defense counsel.

Turning to the facts in the instant case, we conclude that there should be an affirmance. Having laid a proper foundation, the District Attorney had the right to attempt to impeach the credibility of defendant’s alibi witness by cross-examining her on her prior failure to come forward to exculpate her son. While we find the question put to defendant’s mother concerning her failure to tell her story to the Grand Jury io be somewhat suspect, we would not reverse defendant’s conviction on this ground alone. First, we note that defendant’s attorney specifically limited the grounds for his objection to his contention that "[tjhere is no legal responsibility * * * to attend the grand jury proceedings”. As has already been discussed, the mere fact that the witness had no legal obligation to come forward cannot serve as a basis for excluding this type of questioning. Inasmuch as defense counsel chose to limit the grounds for his objection to this single theory, we conclude that any other objection he may have had based upon the potentially misleading nature of the question was not preserved for review (CPL 470.05, subd 2). Moreover, even if the question had been preserved by a proper objection, we could not conclude on this record that reversal was warranted, since the witness herself provided eloquent explanation for her conduct when she said "I don’t know anything about the grand jury”. Under the circumstances, it cannot be said that the cross-examination was so misleading as to require reversal, particularly in the absence of a request by defendant for an appropriate curative instruction.

Defendant has also contended that his conviction should be reversed because the District Attorney made a number of improper comments during the course of his summation. These remarks, however, went without objection and, hence, any objection to their content is not preserved for our review (People v Williams, 46 NY2d 1070).

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

Wachtler, J.

(concurring). It seems grossly unfair to allow a witness to be cross-examined as to why he did not attempt to help the defendant by volunteering to appear before a Grand Jury or otherwise communicate with the prosecution. In addition, it would generally appear to be true that cross-examination on this point would be of little or no probative value with respect to the witness’ credibility.

In many, if not most cases, where the witness is not aware of the Grand Jury or its function, his failure to voluntarily appear before that body simply reflects a lack of legal knowledge, and has no bearing on his ability to tell the truth. On the other hand if the witness possesses sufficient knowledge of legal proceedings and their consequences, it is likely that he would also realize, as lawyers do, that the appearance by a potential defense witness before the Grand Jury does not always help the defendant and may in fact severely damage his case. Indeed the majority notes that counsel for the defendant may properly advise the witness that he may best assist the defendant by saving his testimony for trial. In that event, the court holds it would be improper to question the witness about his failure to appear before the Grand Jury.

Although, in my view, prosecution inquiry on this point often poses a risk to the defendant’s right to a fair trial, it would appear that the potential for abuse will be avoided if the restrictions imposed by the court are carefully observed in future cases. In fact there will rarely be occasion to employ this type of cross-examination. In those cases where the defendant has been arrested and arraigned prior to indictment by the Grand Jury, counsel retained or assigned at that time will undoubtedly advise potential defense witnesses as to whether they can assist the defendant by communicating with the Grand Jury or the prosecutor. And, of course, in cases where the defendant was indicted prior to arrest, the witness would be unaware of the Grand Jury proceedings and the defendant’s need for assistance. In either of those circumstances cross-examination on this point would be prohibited.

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

Order affirmed.

      . To be distinguished, of course, are those situations in which a citizen’s cooperation is commanded or requested by law enforcement officials (see, e.g., United States v New York Tel. Co., 434 US 159, 175-176, n 24; Matter of Babington v Yellow Taxi Corp., 250 NY 14).

      . The "Massachusetts rule” was laid down in Commonwealth v Kenney (12 Met [53 Mass] 235) and followed in Commonwealth v McDermott (123 Mass 440) and State v Bates (140 Conn 326; see, generally, Fisch, New York Evidence [2d ed], at p 461; McCormick, Evidence [2d ed], at pp 353-354).

      . In contrast, in People v Rothschild (35 NY2d 355), we held that it was not improper for the People to cross-examine the defendant on his prior silence in an effort to impeach his testimony because, under the peculiar circumstances in that case, his silence was deemed to have particular probative worth. The defendant in that case was himself a police officer, and, in that connection, we observed: "The natural consequences of his status as a law enforcement officer would require him to promptly report any bribe or attempted bribe to his superiors” (id., at pp 360-361). Although the holding in Rothschild has been characterized as having been predicated upon the defendant’s special "duty” to speak, it is apparent that the existence of a "duty” in Rothschild was relevant only insofar as it lent probative significance to the defendant’s silence (People v Conyers, 49 NY2d 174, 178).

      . In most cases, the District Attorney may lay a "proper foundation” for this type of cross-examination by first demonstrating that the witness was aware of the nature of the charges pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant and, finally, was familiar with the means to make such information available to law enforcement authorities.

      . As a general rule, a potential witness has no right to have his or her testimony heard by a Grand Jury (CPL 190.50, subd 1). Under certain circumstances, a suspect who is being investigated by a Grand Jury may request that a particular person, designated by him, be called to testify before that body, although the Grand Jury is not obliged to grant the request (CPL 190.50, subd 6). In any event, since the burden for initiating such a request falls upon the defendant, it cannot be said that the witness’ failure to volunteer information to the Grand Jury is indicative of any lack of truthfulness in the witness’ story. Indeed, any attempt by the witness to volunteer information to the Grand Jury would be nothing more than a futile gesture in view of the statutory provisions.

      . The members of a petit jury cannot be expected to be conversant with the statutory procedures governing Grand Jury appearances (see n 5, supra). Hence, it would be advisable for the Trial Judge, in addition to any other admonitions he deems appropriate, to explain to the jury that a defense witness ordinarily has no opportunity to speak to a Grand Jury unless invited to do so by the District Attorney or the Grand Jury itself.