author: Meyer, J.

text:
    Christy J. Arbegast, Appellant, v Board of Education of South New Berlin Central School, Defendant, and Buckeye Donkey Ball Company, Respondent.
    Argued March 25, 1985;
    decided June 6, 1985
    POINTS OF COUNSEL

      David S. Merzig for appellant.
    I. The trial court erred when it denied plaintiff’s motion pursuant to CPLR 3025 (c) to amend the pleadings to conform to the proof prior to the submission of this case to the jury. (Diemer v Diemer, 8 NY2d 206; Jones v

      Public Taxi of Schenectady, 34 AD2d 876; Yantic Grain & Prods. Co. v Bullet Hole Farms, 29 AD2d 764.) II. The trial court erred in not granting plaintiff’s request for a comparative negligence charge to the jury. (Leiner v First Wythe Ave. Serv. Sta., 121 Misc 2d 559; Akins v Glens Falls City School Dist., 53 NY2d 325.)

      Brian R. Wright for respondent.
    I. The trial court did not err when it denied the motion pursuant to CPLR 3025 (c) to amend the pleadings to conform with the proof prior to submission of this case to the jury. II. The trial court did not err in not granting plaintiff’s request for a comparative negligence charge to the jury. (Muller v McKesson, 73 NY 195; Hosmer v Carney, 228 NY 73; DiGrazia v Castronova, 48 AD2d 249; Morales v Quinones, 72 AD2d 519; Murphy v Steeplechase Amusement Co., 250 NY 479; Roots v Claremont Riding Academy, 20 AD2d 536, 14 NY2d 827; Herman v State of New York, 94 AD2d 161, 62 NY2d 617; Turcotte v Fell, 123 Misc 2d 877; Akins v Glens Falls City School Dist., 53 NY2d 325; Davidoff v Metropolitan Baseball Club, 61 NY2d 996.)
   OPINION OF THE COURT

Meyer, J.

The system of comparative causation established by CPLR article 14-A encompasses both the strict liability of an owner of a domestic animal to a person injured as a result of the animal’s vicious propensity and the assumption of risk implied from the injured person’s use of or contact with the animal with actual or constructive notice of such propensity. It does not, however, cover the express assumption of risk by the injured party. Plaintiff, a participant in a donkey basketball game, would have been entitled to a jury instruction on comparative causation based on implied assumption of risk as she requested had she not testified that she was informed by defendant’s employee prior to her participation that she participated at her own risk. In view of that testimony, however, her participation in the games constituted an express agreement on her part to assume the risk, entitling defendant to the direction of a verdict in its favor. The order of the Appellate Division, affirming the judgment for defendant entered on the jury’s special verdict, should, therefore, be affirmed, with costs.

I

Plaintiff, a student teacher at the South New Berlin Central School, was injured during a donkey basketball game when the donkey she was riding put its head down and she fell off. The game, sponsored as a fund-raising event for the senior class, was staged under contract by the defendant Buckeye Donkey Ball Company, which provided the donkeys, helmets for each of the players, and an employee who transported and handled the animals, gave instructions to the participants, and acted as referee of the games, in return for which the company received a percentage of the receipts. Two games were played; the first pitted the faculty team against the fire department team and was won by the faculty team; the faculty team then opposed the senior class team in the second game. Plaintiff participated in the first game without mishap, but had a different, larger donkey for the second game than she had had for the first. She spent a good deal of the game walking the donkey around but, at the urging of another faculty member, mounted. Soon thereafter she was thrown over the donkey’s head when it put its head down as it stopped, with resultant permanent injury to her left arm.

Plaintiff sued both the Board of Education and defendant Buckeye, but settled her claim against the Board of Education prior to trial. The claimed negligence on the part of Buckeye as particularized was that knowing of the vicious propensities of the donkey, defendant allowed plaintiff to ride without sufficient warning of such propensities, failed to provide adequate supervision and failed to provide adequate safety equipment. Buckeye, in addition to denying negligence on its part, pleaded as separate affirmative defenses assumption of the risk and reduction of damages by reason of plaintiff’s culpable conduct. There was evidence that the instructions given by Buckeye’s employee to the participants included the statements that the donkeys do buck and put their heads down causing people to fall off and that if injuries happened the participants were at their own risk.

At the close of the evidence defendant moved to dismiss on the grounds that no vicious propensity had been shown and that by plaintiff’s own admission she had assumed the risk, and plaintiff moved for a directed verdict and also for a comparative negligence charge from New York Pattern Jury Instructions — Civil. All of those requests were denied, the Trial Judge ruling that plaintiff’s conduct was to be measured not in diminution of damages, but “solely for the purpose of determining whether all of the elements of her cause of action exist, one of the elements being that she did not knowingly expose herself to the danger of injury by the animals.” The case was submitted to the jury under instructions that if they found that the donkey assigned to plaintiff had tendencies likely to cause the type of accident which occurred, that defendant Buckeye was aware of those tendencies, and that plaintiff was not made aware of those tendencies either by defendant or by her own observation before the accident occurred she could recover, but that if she was made aware of them by defendant or by observation before the accident she could not recover. In answer to specific questions presented to the jury, they found that the donkey had such tendencies, that defendant was aware of them and that plaintiff was informed by defendant’s employee, or in the exercise of reasonable care should have been aware of, the propensity of the donkey she was thrown from. On plaintiff’s appeal from the judgment for defendant entered on that special verdict, the Appellate Division affirmed, without opinion.

The matter is before us by our leave (62 NY2d 602). We conclude that the comparative causation principle enacted by CPLR 1411 applies to a strict liability action involving the vicious propensities of a domesticated animal, and to the implied assumption of risk by a person injured by such an animal, but not to the express assumption of risk by such a person. Although implied assumption of risk, therefore, was under these circumstances a defense in mitigation of damages to be pleaded and proved by defendant rather than an element of plaintiff’s cause of action, defendant was entitled to dismissal of the complaint at the end of the plaintiff’s case by reason of her admission that she had been informed both of the risk of injury and that “the participants were at their own risk.” We, therefore, affirm.

II

The rule governing one who keeps an animal with knowledge of its vicious propensities is one of strict liability or, as it is sometimes called, absolute liability, rather than negligence (Molloy v Starin, 191 NY 21, 25; Muller v McKesson, 73 NY 195, 200; Lynch v McNally, 73 NY 347, 349; see, Strunk v Zoltanski, 62 NY2d 572; People v Sandgren, 302 NY 331, 339; cf. Hosmer v Carney, 228 NY 73, 75-76). It is, however, important to note that prior to enactment of CPLR article 14-A, contributory negligence was not a defense to such liability (Molloy v Starin, supra) but assumption of the risk was (see, Stevens v Hulse, 263 NY 421), and that the rule applies not only to a wild animal but also to a domestic animal which is vicious or has a dangerous tendency of which its owner knows or has reason to know (Restatement [Second] of Torts § 509; 1 NY PJI2d 506-508).

This is not a situation like Akins v Glens Falls City School Dist. (53 NY2d 325) in which prior to adoption of CPLR 1411 there had been no determination of the scope of the duty involved because all participants were held to have assumed the risk, and in which the issue raised was scope of duty. Here the Trial Judge charged that if the donkey assigned to plaintiff had tendencies or propensities likely to cause injury to plaintiff, the defendant was aware of those tendencies and did not tell plaintiff about them or plaintiff was otherwise unaware of them, and those tendencies were a proximate cause of plaintiff’s injuries, she was entitled to recover, but that if plaintiff was made aware of those tendencies either by defendant or by her own observation, she could not recover. There having been no objection to that charge by defendant, the issue on this appeal is not the nature of defendant’s liability but whether plaintiff must be held not to have been entitled to the comparative negligence charge her attorney requested because she had expressly assumed the risk.

Ill

A

Until the enactment in 1975 of CPLR article 14-A, it was, except in an action for wrongful death, a substantive part of the plaintiff’s right to recover in a negligence action that plaintiff prove himself or herself free from negligence contributing in the slightest degree to the occurrence (compare, Fitzpatrick v International Ry. Co., 252 NY 127, 133-134, with Flynn v Long Is. R.R. Co., 289 NY 283; and EPTL 5-4.2). The theory was that plaintiff’s negligence was an intervening cause, which broke the causal connection between the defendant’s negligent act and plaintiff’s injury (Dowd v New York Ontario & W. Ry. Co., 170 NY 459, 469-470).

Assumption of the risk, on the other hand, was predicated not upon plaintiff’s intervening act, but upon his or her agreement, express or implied, not to hold defendant responsible for the injury-causing act, negligent though it may have been, which resulted from plaintiff’s entering into the activity with knowledge of its danger, or under circumstances from which it could be found that he or she should have had such knowledge (id.; Restatement [Second] of Torts §§ 496A-496F). The burden of proving such a contract rested upon defendant, not plaintiff (Dowd v New York Ontario & W. Ry. Co., supra; Buckley v Cunard S.S. Co., 233 App Div 361; Restatement [Second] of Torts § 496G).

Confusion in assessing where the burden lay in a particular situation arose from the imprecise language of the cases and the narrowness of distinction between the two doctrines in some situations (McFarlane v City of Niagara Falls, 247 NY 340, 349; Dowd v New York Ontario & W. Ry. Co., supra, at p 471). The confusion was compounded, moreover, by cases which, on the one hand, suggested that where plaintiff assumes the risk there is no breach of duty on defendant’s part and thus no negligence (McEvoy v City of New York, 292 NY 654, affg 266 App Div 445, 447) and, on the other, used assumption of risk language in reference to situations in which the law imposed no duty on the defendant with respect to a person in plaintiff’s status.

B

It is against this background that CPLR article 14-A was enacted in 1975, providing that as to all causes of action accruing on or after September 1, 1975, “the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages” (CPLR 1411), and “shall be an affirmative defense to be pleaded and proved by the party asserting the defense” (CPLR 1412). The proposed article was presented to the Legislature with a Memorandum of the Judicial Conference (1975 NY Legis Ann, at 23) and explained in the Report of the Judicial Conference to the Legislature on the CPLR (Twenty-first Ann Report of NY Judicial Conference, 1976, at 235 ff) and in a Memorandum of the Sponsoring Assemblyman urging its adoption (NYLJ, Apr. 23, 1975, p 7, cols 1-3). Those memoranda made clear that “this article is applicable not only to negligence actions, but to all actions brought to recover damages for personal injury, injury to property or wrongful death whatever the legal theory upon which the suit is based” (emphasis supplied; 1976 Judicial Conference Report, at 240; see also, 1975 NY Legis Ann, at 24; NYLJ, Apr. 23,1975, p 7, at col 2). They took note of cases such as McEvoy v City of New York (supra), which had taken the position that assumption of the risk negated any duty owed by defendant to the plaintiff, remarking that, “Such an analysis would bar plaintiff’s recovery as a matter of law, thereby undermining the purpose of this article — to permit partial recovery in cases in which the conduct of each party is culpable” (1976 Judicial Conference Report, at 241; see also, 1975 NY Legis Ann, at 24; NYLJ, Apr. 23, 1975, p 7, at col 3).

With respect to “culpable conduct” the Report of the Judicial Conference stated that the phrase was “used instead of ‘negligent conduct’ because this article will apply to cases where the conduct of one or more of the parties will be found to be not negligent, but will nonetheless be a factor in determining the amount of damages”, and that “[t]his article permits the apportionment of damages in cases *** in which the plaintiff’s negligence may be the only negligence, but the defendant’s conduct is nonetheless ‘culpable’ and therefore to be considered in determining damages” (1976 Judicial Conference Report, at 240; emphasis in original). Culpable conduct, it noted, included not only assumption of the risk and contributory negligence, but also product misuse and the patent danger rule declared in Campo v Scofield (301 NY 468) and applied in strict liability cases (Bolm v Triumph Corp., 33 NY2d 151). It made clear also that the examples given were not exhaustive and would not preclude “[j]udicial development of the concept of ‘culpable conduct’ consistent with the goals of this article” (1976 Judicial Conference Report, at 242). Finally, as to the culpable conduct of the defendant, the Report stated that, “The defendant’s culpable conduct may include, but is not necessarily limited to, negligence, breach of warranty, a violation of statute giving rise to civil liability, conduct giving rise to liability upon a theory of strict liability, and intentional misconduct” (id., at 242).

Because the Legislature contemplated that article 14-A would “apply to cases where the conduct of one or more of the parties will be found not negligent” and “in which the plaintiff’s negligence may be the only negligence,” but also that defendant’s culpable conduct would include “conduct giving rise to liability upon a theory of strict liability,” it is clear that both the basis of liability asserted against the present defendant and the plaintiff’s acts may constitute “culpable conduct” within the meaning of the statute.

C

Thus, what the statute requires comparison of is not negligence but conduct which, for whatever reason, the law deems blameworthy, in order to fix the relationship of each party’s conduct to the injury sustained and the damages to be paid by the one and received by the other as recompense for that injury. Comparative causation is, therefore, the more accurate description of the process, as is evident both from the wording of CPLR 1411 (“shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages” [emphasis supplied]) and from the section of the Judicial Conference Report entitled “Causal Culpability” (1976 Judicial Conference Report, supra, at p 242): “Only culpable conduct which was a substantial factor in causing the harm for which recovery is sought is to be considered in determining the amount by which damages are to be diminished. For example, if P accepts a ride in an automobile driven by A, with knowledge that A is intoxicated, and P is injured when B negligently drives his vehicle into the rear of A’s vehicle which is properly stopped for a red traffic signal, in P’s action against B, there will be no diminution of damages. While P may have engaged in culpable conduct in accepting a ride with A, that conduct was not a substantial factor in causing the damage suffered by P.” As that example makes clear, for the statute to operate, plaintiff’s conduct must be a cause in fact of his or her injury. When it is, the statute “requires that the culpable conduct attributable to the decedent or claimant be compared with the total culpable conduct which caused the damages” (id., at 242).

D

Neither article 14-A nor its legislative history defines “assumption of risk.” The common law distinguished between express and implied assumption of risk. Express assumption., which was held to preclude any recovery, resulted from agreement in advance that defendant need not use reasonable care for the benefit of plaintiff and would not be liable for the consequence of conduct that would otherwise be negligent (Prosser, Law of Torts, at 442 [4th ed]; Schwartz, Comparative Negligence § 9.2; Comparative Negligence Law & Practice § 4.20 [1] [b] [i] [Matthew Bender]; Restatement [Second] of Torts § 496B; Uniform Comparative Fault Act § 1 [b], 12 ULA [1985 Cum Ann Pocket Part], at 41; Ann., 16 ALR4th 700). Implied assumption was founded not on express contract, but on plaintiff’s voluntarily encountering the risk of harm from defendant’s conduct with full understanding of the possible harm to himself or herself (Prosser, op. cit., at 445; Schwartz, op. cit. §§ 9.1, 9.3; Comparative Negligence Law & Practice op. cit. § 4.20 [1] [b] [ii]; Restatement [Second] of Torts §§ 496C, 496D, 496E), and according to some authorities required that plaintiff’s consent to the risk involved be unreasonable under the circumstances (Schwartz, op. cit. § 9.1, at 157; Comparative Negligence Law & Practice, op. cit., at 4-33 — 4-34; Uniform Comparative Fault Act § 1 [b] and comment; Restatement [Second] of Torts § 496E comment d).

The Legislature is, however, presumed to be aware of the decisional and statute law in existence at the time of an enactment (Hammelburger v Foursome Inn Corp., 54 NY2d 580, 588; Easley v New York State Thruway Auth., 1 NY2d 374, 379), and to have abrogated the common law only to the extent that the clear import of the language used in the statute requires (Transit Commn. v Long Is. R.R. Co., 253 NY 345, 355).

Here, as noted by Schwartz (op. cit. § 9.2,1981 Cum Supp, at 74), CPLR 1411 leaves it “unclear whether express assumption of risk is subject to comparison.” But, when article 14-A was enacted, it had long been the law that a contractual limitation of liability for negligence or other fault of a party seeking to be relieved of his ordinary responsibility did not violate public policy (Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301; Ciofalo v Vic Tanney Gyms, 10 NY2d 294; Kirshenbaum v General Outdoor Adv. Co., 258 NY 489; accord, Florence v Merchants Cent. Alarm Co., 51 NY2d 793; I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657), except as specific statutes imposed limitations upon such agreements (see, Goncalves v Regent Intl. Hotels, 58 NY2d 206; Weinberg v D-M Rest. Corp., 53 NY2d 499) or interdicted them entirely (see, General Obligations Law, §§ 5-321, 5-322, 5-322.1, 5-323, 5-324, 5-325, 5-326 [all of which were enacted well prior to 1975 except § 5-322.1, which was enacted at the same legislative session as was CPLR art 14-A]). We conclude, therefore, that CPLR 1411 requires diminishment of damages in the case of an implied assumption of risk but, except as public policy proscribes an agreement limiting liability, does not foreclose a complete defense that by express consent of the injured party no duty exists and, therefore, no recovery may be had. Added support for that conclusion may be found in the decisions of courts of other States.

The existence of such an express assumption of risk by the injured party is a matter of defense upon which the burden of proof will be on the party claiming to have thus been absolved of duty (CPLR 3018 [b]; Dowd v New York Ontario & W. Ry. Co., 170 NY 459, supra) and will be a factual issue for the jury, unless there is no real controversy as to the facts (Goncalves v Regent Intl. Hotels, 58 NY2d, at p 218, supra; McEvoy v City of New York, supra).

IV

Here there is evidence from which the jury could have concluded that plaintiff had knowledge of the risk and by participating in the games voluntarily assumed it, and no question that plaintiff’s conduct in mounting the donkey from which she was thrown was a cause in fact of her injuries. She would, therefore, have been entitled to a comparative causation charge on implied assumption of the risk had she not conceded that she was told before the games began that “participants are at their own risk.” In light of that concession, however, the Trial Judge should have directed a verdict for defendant.

For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Jasen, Simons, Kaye and Alexander concur; Judge Titone taking no part.

. Order affirmed, with costs.

      . The comparative negligence charge was requested during the charge conference (see, CPLR 4110-b) just prior to summations, but the request was not repeated at the end of the court’s instructions to the jury, to which plaintiff’s attorney took no exception. Defendant argues that the issue was, therefore, not preserved. There is, however, nothing in this case, as there was in Bichler v Lilly & Co. (55 NY2d 571, 583-584), to suggest that plaintiff’s request was being either abandoned or withdrawn. The charge conference request was, therefore, sufficient to preserve the issue.

      . Thus, prior to Basso v Miller (40 NY2d 233), a property owner owed no duty of reasonable care to a trespasser, who was said to have taken upon himself the risk of all but intentional, wanton or willful injury (Carbone v Mackchil Realty Corp., 296 NY 154, 158-159). Likewise, the city, having provided an experienced lifeguard who was in attendance at the time plaintiff’s decedent drowned, was held to have violated no duty, there being no evidence that the lifeguard.could have prevented the accident and a “person who is sui juris and engages in such a sport as swimming accepts the dangers inherent in the sport so far as they are obvious and necessary” (Curcio v City of New York, 275 NY 20, 23-24). For other examples see, 1 NY PJI2d 193-195.

      . The Campo case was overruled in Micallef v Miehle Co. (39 NY2d 376, 387), which stated that, “As now enunciated, the patent-danger doctrine should not, in and of itself, prevent a plaintiff from establishing his case.” CPLR 1411 was referred to only incidentally in a footnote, the accident involved having occurred before its effective date.

      . “[T]he underlying task in each case is to analyze and compare the causal conduct of each party regardless of its label” (Murray v Fairbanks Morse, 610 F2d 149, 159; accord, Coney v J.L.G. Indus., 97 Ill 2d 104, 454 NE2d 197; see also, Kulig, Comparative Negligence and Strict Products Liability: Where Do We Stand? Where Do We Go?, 29 Vill L Rev 695, 709-711 (and cases cited nn 79-94); Twerski, The Many Faces of Misuse: An Inquiry Into the Emerging Doctrine of Comparative Causation, 29 Mercer L Rev 403; Twerski, The Use and Abuse of Comparative Negligence In Products Liability, 10 Ind L Rev 797; Wade, Products Liability and Plaintiff’s Fault — The Uniform Comparative Fault Act, 29 Mercer L Rev 373; Ann., 9 ALR4th 633; 10 ALR4th 946).

      . Similarly, Uniform Comparative Fault Act § 2 (b) (12 ULA [1985 Cum Ann Pocket Part], at 43) provides that: “In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.”

      . We do not read the reference in the Judicial Conference Report to the McEvoy case (292 NY 654) as inconsistent with our conclusion. McEvoy concerned assumption arising from prior knowledge of the defect (in truth, contributory negligence) and from a statute imposing upon an owner or occupant of real property, such as plaintiff McEvoy, an obligation to keep the sidewalk free of defect. The court’s construction of the statute was that it imposed merely fiscal responsibility, not a standard of care, on plaintiff, and, therefore, could not constitute contributory fault.

      . Only two cases directly in point have been found: Kopischke v First Cont. Corp. (187 Mont 471, 610 P2d 668) held on public policy grounds that the “as is” sale of a used car was not an assumption of the risk of the defective condition of the vehicle under the Montana comparative negligence statute, and Jacobsen Constr. Co. v Structo-Lite Eng. (619 P2d 306, 310 [Utah]) construed the Utah statute, which refers to assumption of risk, to exclude express assumption. Both holdings were dictum. But a number of comparative negligence statutes making no reference to assumption of risk have been held not to include express assumption (Wilson v Gordon, 354 A2d 398 [Me]; Saxton v Rose, 201 Miss 814, 29 So 2d 646; Braswell v Economy Supply Co., 281 So 2d 669 [Miss]; Keegan v Anchor Inns, 606 F2d 35 [VI]; Kennedy v Providence Hockey Club, 119 RI 70,376 A2d 329; see, Springrose v Willmore, 292 Minn 23, 192 NW2d 826; contra, Lyons v Redding Constr. Co., 83 Wn 2d 86,515 P2d 821) and in Rutter v Northeastern Beaver County School Dist. (496 Pa 590, 614-615, n 6,437 A2d 1198,1210, n 6) a statute which specifically excepted assumption of risk as to downhill skiing was held not to affect assumption of risk in any other situation. But where comparative negligence has been adopted judicially rather than by statute, a number of courts have held it not to include express assumption (Li v Yellow Cab Co., 13 Cal 3d 804, 532 P2d 1226; Blackburn v Dorta, 348 So 2d 287 [Fla]; Meistrich v Casino Arena Attractions, 31 NJ 44,155 A2d 90; Scott v Rizzo, 96 NM 682, 634 P2d 1234; Rutter v Northeastern Beaver County School Dist, supra, at pp 612-613, at p 1209; Lyons v Redding Constr. Co., supra; Brittain v Booth, 601 P2d 532 [Wyo]; see, Parker v Redden, 421 SW2d 586 [Ky]; Felgner v Anderson, 375 Mich 23, 133 NW2d 136; Bolduc v
        Crain, 104 NH 163,181 A2d 641; Farley v MM Cattle Co., 529 SW2d 751 [Tex]; South v AB Chance Co., 96 Wn 2d 439, 635 P2d 728; Gilson v Drees Bros., 19 Wis 2d 252, 120 NW2d 63; contra, Leavitt v Gillaspie, 443 P2d 61 [Alaska]).


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Robert J. Wilkins, Appellant.
    Argued April 23, 1985;
    decided June 6, 1985
    POINTS OF COUNSEL

      Randall L. Reed for appellant.
    I. The court committed prejudicial error in allowing the District Attorney to question defendant and then the psychologist, K. C. Sharma, regarding privileged psychologist-client conversations between them. (People v

      Shapiro, 308 NY 453; People v Edney, 39 NY2d 620; People v AlKanani, 33 NY2d 260, 417 US 916.) II. All of the statements made by defendant, Robert Wilkins, to the State Police, after he first told the State Police that he wanted an attorney should be suppressed. (People v Cunningham, 49 NY2d 203; People v Samuels, 49 NY2d 218.) III. The District Attorney conducted the Grand Jury hearing in an illegal and biased manner, depriving defendant of a fair hearing and violating his constitutional rights to due process. (People v Seward, 51 Misc 2d 415; People v Ferrara, 82 Misc 2d 270.) IV. The prosecutor’s failure to disclose apparent evidence of an exculpatory nature (Brady material) is reversible error. (Brady v Maryland, 373 US 83.) V. The People failed to produce sufficient evidence of intent to cause serious physical injury. (People v Patterson, 39 NY2d 288.) VI. There was reversible error in the court’s denial of defendant Robert Wilkins’ request that the jury be given the charge of criminally negligent homicide. (People v Stanfield, 36 NY2d 467.) VII. The probation report used to sentence defendant was biased and unsupported by facts regarding defendant’s mental condition to such an extent that it resulted in defendant’s receiving a prison sentence far in excess of what should have been imposed. VIII. Defendant did not receive effective representation from counsel from the time of his arrest to the time of his sentence. (People v Droz, 39 NY2d 457.) IX. The sentence imposed upon defendant in this case was excessive and harsh given the relevant facts and thus an abuse of the court’s discretion. (People v Discala, 45 NY2d 38; People v Du Bray, 76 AD2d 976; People v Davies, 275 App Div 726; People v Pettis, 62 AD2d 1110; People v Whiting, 89 AD2d 694.)

      Kevin M. Dowd, District Attorney, for respondent.
    I. Defendant effectively waived any psychologist-patient privilege by testifying in his direct case as to how the wounds to his wrist and stomach were inflicted (Capron v Douglass, 193 NY 11; State of Florida v Axelson, 80 Misc 2d 419; People v Al-Kanani, 33 NY2d 260.) II. The statement by defendant given to Investigators Bernardi and Burrell should not be suppressed. (People v Gary, 31 NY2d 68; People v Sanders, 56 NY2d 51.) III. The Grand Jury procedure was proper and none of defendant’s rights were violated. IV. There was no exculpatory evidence that should have been disclosed to defendant. V. There was sufficient evidence of intent to cause serious physical injury. VI. There was no error in refusing to charge criminally negligent homicide. VIL The probation report was not biased. VIII. Defendant received effective assistance of counsel throughout all stages of trial. IX. The sentence imposed, upon defendant was not excessive and harsh and thus not an abuse of the court’s discretion.
   OPINION OF THE COURT

Meyer, J.

A defendant who testifies in support of his justification defense that stab wounds on his body were inflicted by the decedent for whose murder he is being tried does not thereby waive the psychologist-client privilege established by CPLR 4507. It was, therefore, error, requiring reversal and a new trial, to permit the hospital psychologist, who interviewed defendant in order to determine whether he was suicidal, to testify, over defendant’s objection and claim of privilege, that defendant had stated to him that his stab wounds were self-inflicted.

I

Indicted for murder in the second degree and manslaughter in the first degree based upon the death on May 16,1982 of Gloria Diamond, defendant was convicted, after a jury trial, of manslaughter in the first degree. At the time of trial defendant was 26 years old. At the time of her death Gloria Diamond was 16 years of age. She and defendant had lived together, in an apartment which they rented, for approximately seven months until she left about a month before her death and went to live with her mother. There was evidence that defendant was troubled by her dating a new boyfriend and had told Gloria’s sister that if he could not have her no one would.

On the evening of May 16th Gloria returned to the apartment at about 8:00 p.m., ostensibly to return the keys and some money defendant had sent her. They were together that evening for several hours during which, according to defendant, they had sexual relations, but then got into an argument which culminated in Gloria attacking him with two knives, cutting his left wrist with one and stabbing him in the stomach with the other. Apart from pushing her away, defendant had no recollection of what followed. The cause of Gloria’s death, according to the medical examiner, was strangulation.

Between the time of the events in the apartment and midnight, defendant made several attempts to kill himself, by drinking ammonia, by driving his pickup truck at high speed into a viaduct, and finally by jumping in front of a car on the highway. While in an ambulance being given emergency treatment for his injuries, defendant asked to speak to Joseph Peptis, an off-duty State trooper who did not know defendant but whom defendant apparently recognized, and twice stated to him that, “I just killed my girlfriend.” Given the address of defendant’s apartment, Peptis proceeded there and found Gloria Diamond’s body in the kitchen. After the body was checked for signs of life and the apartment secured. Trooper Peptis proceeded to the hospital where with Senior Investigator McElligott he interviewed defendant, advising him of his rights. Defendant responded, “You have your man, you have your corpus delicti, now you figure it out.” Defendant then requested an attorney and was advised that he was under arrest for murder, second degree.

At the suppression hearing Trooper Peptis testified that the hospital interview occurred at 12:58 a.m. on May 17th. Two other State Police Investigators, Stephen Bernardi and Wayne Burrell, testified at the suppression hearing that they interviewed defendant at the hospital at 1:53 a.m. on May 17th and advised him of his rights, and that defendant stated that he was willing to talk without an attorney. Defendant then told them that he had tried to kill himself by stabbing himself and refused to talk further after saying that you have the corpus delicti, you have your man; the only thing you want from me is motive. According to Bernardi and Burrell no one else was present during their interview.

The suppression Judge held the statements to Peptis at the accident scene spontaneous and that ruling is not an issue on this appeal. Without differentiating the hospital statement to Bernardi and Burrell from that to Peptis and McElligott, or fixing the times of the several interviews, he held that defendant’s original request to say nothing further was honored and that, in light of the time elapsed and the renewed warnings given, the hospital statements were admissible.

At the hospital defendant was also interviewed by Dr. K. C. Sharma, a licensed clinical psychologist, to determine whether he was suicidal, and during that interview as well, he stated that his stab wounds were self-inflicted. Defendant having testified in his own defense to Gloria’s attack on him, as above recounted, with two knives, the People were permitted, over defendant’s objection, to present in rebuttal Dr. Sharma’s testimony concerning defendant’s statements that he had stabbed himself.

The Appellate Division affirmed, by a divided court, the majority holding that the psychologist-client privilege is no broader than the doctor-patient privilege and that defendant should not be permitted to absolve himself and at the same time assert privilege in order to prevent ascertainment of the truth of his claim. With respect to the statements to Investigators Bernardi and Burrell, the entire court agreed that they had been made after defendant, during his second statement to Peptis, invoked his right to counsel and therefore should have been suppressed, but the majority held the error harmless beyond a reasonable doubt in light of defendant’s earlier admissions to Peptis and to Dr. Sharma, and the medical evidence that Gloria had been strangled and that defendant’s wounds were “hesitation” wounds (that is, self-inflicted by someone lacking the will to end his life).

The matter is before us by leave of one of the dissenting Justices at the Appellate Division. Defendant raises a number of points, none of which merit discussion except those relating to the testimony of Dr. Sharma and of Investigators Bernardi and Burrell. We conclude that it was error to admit the testimony of Dr. Sharma. We, therefore, reverse and remit for a new trial, noting that at the new trial the statements to Investigators Bernardi and Burrell, which should have been suppressed at the first trial, will not be admissible.

II

CPLR 4504, made applicable to criminal cases by CPL 60.10, proscribes disclosure by “a person authorized to practice medicine * * * [of] any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” Dr. Sharma testified that he saw defendant in the intensive care unit at the request of the hospital physician in order to give the physician his opinion concerning whether defendant was suicidal and that there was a relationship of confidence between him and defendant. There can be no question, therefore, that defendant’s statements to Dr. Sharma that the wounds of his wrist and abdomen were self-inflicted, had they been made to a physician, would be privileged within the meaning of CPLR 4504. It has, however, long been the rule that when a patient puts in issue the condition for which he was examined by a physician he waives the privilege to the extent of permitting the physician to testify as to the facts upon which his opinion is based, but not on matters unrelated to the opinion concerning defendant’s guilt of a crime (People v Edney, 39 NY2d 620; People v Al-Kanani, 33 NY2d 260, 264; Matter of Lee v County Ct., 27 NY2d 432, 441; People v Carfora, 25 NY2d 972; People v Finn, 64 AD2d 526; see, People v Smith, 59 NY2d 156, 164; Koump v Smith, 25 NY2d 287; Hethier v Johns, 233 NY 370; Capron v Douglass, 193 NY 11).

The reasons usually given for the latter rule are that by putting his or her condition in issue the defendant has made public what the statute was intended to protect and thus obviated the need for further confidence, and that it is unreasonable and unjust to permit a party to testify to whatever he pleases as to a given condition and at the same time prevent the opponent from contradicting the testimony (e.g., People v Bloom, 193 NY 1, 10; Capron v Douglass, 193 NY 11, 17, supra; see, Chafee, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor’s Mouth on the Witness Stand, 52 Yale LJ 607, 610).

In most cases the admissibility or inadmissibility of a physician’s testimony will be clear. Thus, in People v Ricco (56 NY2d 320, 327), a defense of insanity was held not to permit the use of a statement obtained in violation of defendant’s right to counsel as the basis for expression by a psychiatrist of an opinion that defendant was malingering rather than delusional, and in People v Finn (supra), such a defense was held not to permit a psychiatrist to testify concerning incriminating statements made to him by defendant, but in the Edney, Al-Kanani and Lee cases an insanity defense was held to permit testimony concerning defendant’s mental condition by a psychiatrist who had examined him at the request of his attorney or as part of the procedure relating to competence established by CPL article 730.

The defense involved need not, however, be one formally established by the Penal Law. The introduction by a defendant through several witnesses of testimony that at the time of the robbery with which he was charged and at a time two weeks later when complainant claimed to have seen him at Roosevelt Raceway he was unable to walk without crutches because of an ankle injury was held, in People v Carfora (25 NY2d 972, supra), to permit the prosecution to present in rebuttal the testimony of physicians who examined him prior to the robbery, as to the condition of his ankle at the time of examination and the time it would take for the ankle to heal. Likewise, in State v Soney (177 NJ Super 47,424 A2d 1182, cert denied 87 NJ 313,434 A2d 67), the testimony of an epileptic charged with vehicular homicide that he had taken the required medication after breakfast on the day of the accident was held a waiver of privilege permitting the doctor who treated defendant at the hospital immediately following the accident to testify that defendant admitted that he had run out of his medication and had not taken it for three days prior to the accident.

Dr. Sharma interviewed defendant in order to determine whether he was suicidal. Although by testifying that Gloria had stabbed him in the wrist and stomach defendant did not put directly in issue his mental condition vis-a-vis suicide, he did so indirectly in the same manner as did Carfora’s presentation of testimony that he could not have participated in a robbery because he was on crutches when it took place. Were we dealing with a matter governed by the physician-patient privilege, therefore, the reasoning of Carfora and Soney would appear sufficient to permit introduction of Dr. Sharma’s testimony over objection based on privilege (see, Ann., 44 ALR3d 24,121 ff; but cf. People v Shapiro, 308 NY 453, 458-459).

What we deal with, however, is a case involving not a person authorized to practice medicine, but a psychologist registered under the Education Law. CPLR 4507 provides that “[t]he confidential relations and communications between a psychologist registered under the provisions of * * * the education law and his client are placed on the same basis as those provided by law between attorney and client, and nothing in such article shall be construed to require any such privileged communications to be disclosed.” Neither the memoranda of the Department of Education and the Department of Mental Hygiene which preceded introduction of the legislation which ultimately became CPLR 4507 (1956 NY Legis Ann, at 214-215; 1956 McKinney’s Session Laws of NY, at 1928-1929), nor the Governor’s message of approval (1956 NY Legis Ann, at 479; 1956 McKinney’s Session Laws of NY, at 1684) gives any indication of the reason for placing the psychologist’s privilege on the same footing as that between attorney and client rather than physician and patient. The reason may have been historical, for the law developing in other States at that time was that the testimony of a psychiatrist employed by defendant’s attorney, who rendered a negative report, was barred by the attorney-client privilege and unavailable to the prosecution, even though defendant became a witness in his own behalf (see, e.g., State v Kociolek, 23 NJ 400,129 A2d 417), a position not passed upon by this court until 1976, when in People v Edney (39 NY2d 620, 624, supra) it was repudiated.

Whatever the reason, however, in the face of the Legislature’s equation of the psychologist-client privilege with that between attorney and client and the marked difference between our case law holding the doctor-patient privilege, waived under circumstances in which the attorney-client privilege has been held not waived, we cannot agree with the Appellate Division’s conclusion that the psychologist-patient privilege is no broader than the doctor-patient privilege. In a line of cases going back at least to the turn of the century, we have held that a party who testifies in his or her own behalf may not be cross-examined concerning statements to his or her attorney, nor may the attorney be called as a witness to such statements (People v Glenn, 52 NY2d 880 [cross-examination of defendant re discussion with attorney of justification defense, error]; People v Shapiro, 308 NY 453, supra [cross-examination of defendant re discussion with attorney concerning whereabouts of a possible witness for defendant, error]; Kaufman v Rosenshine, 183 NY 562, affg 97 App Div 514 [error to permit wife’s attorney to be called to rebut her testimony on cross-examination that she had told the attorney about all of her assets]; People v Moore, 42 AD2d 268 [error to permit cross-examination of defendant concerning whether he made a written statement for his attorney]; see, People v Lynch, 23 NY2d 262 [statement by accomplice to his lawyer not discoverable by defendant as Rosario material, even though accomplice had been granted immunity]).

The reasons for the refusal to imply a waiver of the attorney-client privilege from the circumstance that the client took the stand in his or her own behalf are forcefully stated in People v Shapiro (308 NY, at p 459, supra): “To say that the broad protection of such policy is not available to a defendant when he takes the stand in a criminal case would entail consequences far more detrimental to the interests of society than does rejection of the evidence that might be disclosed. When the client, especially one accused of crimes, asks for advice and guidance in the premises, he should be able to speak freely without any fear and in full confidence that what is said by him or to him by his attorney will not be subsequently subject to disclosure if he takes the witness stand during the trial of his case. Any other policy than strict inviolability, unless expressly waived, would seriously hamper the administration of justice, for the client would perhaps refrain from telling the truth or withhold the truth, while the lawyer would be reluctant to give the correct advice and counsel if he thought it would be subject to disclosure in the event his client took the stand to testify in his own behalf. It is for these and other reasons that the rule against disclosure is of such importance and that it may not be waived except as the statute provides with ‘the express consent’ of the client (cf. Matter of People v. Cravath, 58 Misc. 154). The privilege of nondisclosure belongs to the client alone (Svenson v. Svenson, 178 N. Y. 54) and disclosure should not be compelled when a client’s liberty is at stake in a criminal trial.” That holding is, moreover, the prevailing view (8 Wigmore, Evidence § 2327, at 637-638 [McNaughton rev ed]; McCormick, Evidence § 93, at 224 [3d ed]; Richardson, Evidence § 418 [Prince 10th ed]; Fisch, New York Evidence § 530 [2d ed]; 3 Wharton’s Criminal Evidence § 561 [13th ed]; Ann., 16 ALR3d 1029; 51 ALR2d 521), and we must conclude from the specific statutory language quoted above, the view the Legislature intended to have applied with respect to a communication to a psychologist (see, Matter of Queen [Ortmeyer], 233 NYS2d 798). Admission of Dr. Sharma’s testimony was, therefore, error.

Ill

The testimony at the suppression hearing was that defendant requested an attorney when Trooper Peptis and Investigator McElligott interviewed him at the hospital at 12:58 a.m. on May 17th and that Investigators Bernardi and Burrell then interviewed him at 1:53 a.m. the same day. The People seek to avoid suppression of the statements made to Bernardi and Burrell by pointing to Trooper Peptis’ trial testimony that the time of the interview was not 12:58 a.m. but 2:58 a.m. We have, however, several times made clear that the propriety of the denial of a suppression motion must be judged on the evidence before the suppression court and that evidence subsequently admitted at the trial cannot be used to support the suppression court’s denial (People v Dodt, 61 NY2d 408, 417; People v Gonzalez, 55 NY2d 720, 721-722). That ruling finds its roots in the potential for abuse and injustice referred to in People v Havelka (45 NY2d 636). The statements to Bernardi and Burrell should have been suppressed, therefore, as the Appellate Division held, and on retrial such evidence must be excluded.

For the foregoing reasons, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Wachtler and Judges Jasen, Simons, Kaye and Alexander concur; Judge Titone taking no part.

Order reversed, etc.

      . In National Psychological Assn. for Psychoanalysis v University of State of N. Y. (8 NY2d 197, 201-202), we noted that the provision (then Education Law § 7611) equated the psychologist-client relation with that of attorney and client and stated “[i]n this aspect, its sponsors felt that the statute would encourage bona fide psychologists with university training and professionally supervised experience to offer their needed professional services to the public in increasing numbers.” When the provision was moved from the Education Law to the CPLR at the suggestion of the Law Revision Commission, that body noted the above-quoted language of the National Psychological Assn, decision, but did not otherwise comment on the reason for relating the privilege it provided for to the attorney-client rather than the physician-patient privilege (1968 Report of NY Law Rev Commn, at 207 ff). The Proposed Code of Evidence for the State of New York now under legislative consideration would conform the psychologist-client privilege with the physician-patient privilege 0compare, Proposed Code of Evidence §§ 509, 510).

      . To the extent that State of Florida v Axelson (80 Misc 2d 419) is to the contrary, it is not to be followed.


author: Chief Judge Wachtler.

text:
    In the Matter of Samuel Lockett, Respondent, v Michael R. Juviler, as Justice of the Supreme Court, Kings County, et al., Respondents, and Elizabeth Holtzman, as District Attorney of Kings County, Appellant.
    Argued April 24, 1985;
    decided June 6, 1985
    POINTS OF COUNSEL

      Elizabeth Holtzman, District Attorney (Debra W. Petrover and Barbara D. Underwood of counsel), appellant, pro se.

    I. The court below erred in holding that in the absence of express statutory authority a trial court has no inherent power to vacate a fraudulently induced plea of not responsible pursuant to CPL 220.15. (Matter of Lyons v Goldstein, 290 NY 19; People v Selikoff, 35 NY2d 227; Santobello v New York, 404 US 257; People v Bartley, 47 NY2d 965; People v Minaya, 54 NY2d 360, 455 US 1024; People v Da Forno, 53 NY2d 1006; Hazel-Atlas Co. v Hartford Co., 322 US 238.) II. Trial of the indictments against defendant is not barred by the prohibition against double jeopardy. (North Carolina v Pearce, 395 US 711; People v Key, 45 NY2d 111; Serfass v United States, 420 US 377; United States v Martin Linen Supply Co., 430 US 564; Arizona v Washington, 434 US 497; United States ex rel. Sole v Rundle, 435 F2d 721.)

      Michael W. Warren for Samuel Lockett, respondent.
    I. The court below was correct in holding that in the absence of express statutory authority a trial court has no inherent power to vacate a fraudulently induced plea of not responsible pursuant to CPL 220.15. (Matter of Campbell v Pesce, 60 NY2d 165.) II. Trial of the indictments against defendant is barred by the prohibition against double jeopardy. (United States v Scott, 437 US 82; Burks v United States, 437 US 1; People v Flockhart, 96 AD2d 843; Fong Foo v United States, 369 US 141; People v Plaksin, 107 Misc 2d 696; People v Escobar, 61 NY2d 431; People v Brown, 40 NY2d 381; People v Key, 45 NY2d 111; Matter of Frank K., 87 AD2d 1003; United States ex rel. Sole v Rundle, 435 F2d 721.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The question on this appeal is whether a court which has accepted a special plea of “not responsible by reason of mental disease or defect” pursuant to CPL 220.15, may vacate the plea on application of the prosecutor on the ground that it was fraudulently obtained. The trial court granted the prosecutor’s motion. In this proceeding the Appellate Division held that the court lacked the power under the statute and prohibited further prosecution of the criminal charges. The People appeal claiming that the trial court had inherent power to vacate the plea. They also urge that the plea did not constitute an acquittal within the meaning of the double jeopardy clause, so as to preclude restoration of the charges.

The petitioner, Samuel Lockett, allegedly committed 18 robberies in Brooklyn during a 30-day period beginning on December 6, 1980 and ending on January 5,1981. On the last occasion he was arrested at the scene of the crime. A Grand Jury subsequently returned two indictments charging him with several counts of robbery in the first and third degrees and related offenses.

Following the petitioner’s arrest, several competency hearings were held to determine his mental fitness to stand trial (CPL art 730). The first hearing resulted in a finding that he was not competent to be brought to trial at that time. At the second hearing, held several months later, it was determined that he was then able to understand the nature of the proceedings and assist counsel in his defense. A third hearing produced the same conclusion.

During the examinations held in connection with the competency hearings, the petitioner stated that he was a veteran who served in combat during the Vietnam War and still felt the effects of that experience. After he was found competent to stand trial, he claimed that he was not responsible for his actions by reason of mental disease or defect because he was suffering from posttraumatic stress disorder, sometimes referred to as the Vietnam War syndrome.

The petitioner could have raised this issue as a defense at trial (Penal Law § 30.05 [now § 40.15], making it an affirmative defense). He sought instead to have the court accept it as a plea and terminate the criminal proceedings without a trial, pursuant to CPL 220.15, a statute enacted in 1980 as an insanity defense reform measure.

CPL 220.15 creates a procedure resembling plea bargaining but produces a kind of reverse guilty plea. It permits the defendant to enter a plea of “not responsible by reason of a mental disease or defect”, if the court and the prosecutor consent (CPL 220.15 [1]). Before accepting the plea, the court must be satisfied that the People could establish all the elements of the crime beyond a reasonable doubt but could not meet their burden of proving the defendant’s mental responsibility (CPL 220.15 [5] [a], [b]). The statute provides that, if accepted by the court, the plea is equivalent to a verdict finding the accused not responsible by reason of a mental disease or defect (CPL 220.15 [3] [f]). It effectively terminates the criminal proceeding and initiates commitment proceedings of a civil nature (CPL 220.15 [6]; 330.20).

The People requested, and were granted, permission to have the accused examined by a psychiatrist of their choosing. The People’s psychiatrist concluded that Lockett suffered from a mental disease, posttraumatic stress disorder, resulting from his Vietnam experience.

On April 13, 1983, the People consented to the entry of the plea. The prosecutor stated that the People could establish the elements of the crimes charged by eyewitness testimony, and in some cases by video tapes. She informed the court, however, that based on the psychiatric reports, the People could not disprove the defense of criminal responsibility beyond a reasonable doubt, because they could not prove that the accused knew what he was doing was wrong. Defense counsel informed the court that Lockett had “no defense to his being present and participating in these crimes; just to the degree of the crime.” Satisfied with these representations and the psychiatric reports, the court did not hold a hearing (CPL 220.15 [1]). After advising the defendant of his rights and the consequences of his plea, the court accepted and entered his plea of not responsible by reason of a mental disease or defect. The court then ordered that Lockett be examined pursuant to CPL 330.20 (2) to determine whether he was dangerously mentally ill at that time. The court also scheduled a hearing to consider the results of that examination (CPL 330.20 [6]).

Before the hearing was held, however, the People moved to vacate the plea on the ground that it was induced by fraud because they had just learned that Lockett, although an Air Force veteran, had never been in Vietnam. In support of this application, the People submitted a certified copy of his military records which showed that he had never left Randolph Air Force Base in Texas, where he had served as an accounting clerk. The People noted that they had issued a subpoena for these records before consenting to the entry of the plea, but the Federal Government had rejected the subpoena because certain Federal requirements had not been met. After entry of the plea, the People obtained a court-ordered subpoena in preparation for the initial commitment hearing. The Federal authorities had honored that subpoena and upon receipt of the records, the People had learned that the defendant was not, in fact, a combat veteran as he represented himself to be.

The court granted the People’s motion, noting that the defendant had consistently informed the examining psychiatrists at the various mental examinations that he had served in Vietnam where he had horrible combat experiences and that these misrepresentations played a crucial part in their mental evaluations and opinions that he suffered from a posttraumatic stress disorder. The court rejected the defendant’s arguments that the plea could not be vacated because of a lack of express statutory authority, concluding that the court had inherent power to vacate a plea obtained by fraud and misrepresentation. The court also rejected the defendant’s contention that the double jeopardy clause precluded restoration of the criminal charges, finding that jeopardy had not attached because the petitioner had not been subjected to the risk of conviction.

Lockett then commenced this article 78 proceeding in the Appellate Division to prohibit the trial court from proceeding with the prosecution. In a memorandum decision the Appellate Division granted the petition, concluding that the court lacked the power to vacate the plea in the absence of express statutory authority. The court stated: “although acceptance of the petitioner’s pleas of ‘not responsible by reason of mental disease or defect’ (CPL 220.15) may have been based upon erroneous information given to the psychiatrists by petitioner himself, under the circumstances of this case, no satisfactory authorization exists for the court to have vacated the pleas and subsequent commitment to a secure facility pursuant to statute (CPL 330.20, subd 3). Thus the vacatur was improper and invalid (cf. Matter of Campbell v Pesce, 60 NY2d 165).” (102 AD2d 869.)

CPL 220.60 (3) expressly permits a court to vacate a plea of not responsible by reason of mental disease or defect on application of the defendant, under circumstances which are not entirely clear (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, pp 293-294). There is no comparable right granted to the People. However, the absence of express statutory authority is not controlling in this instance because the issue presented by the People’s application is one over which the courts have inherent power.

This is not a case where the court was called upon to correct a purely statutory defect in a judgment for which no statutory corrective authority exists (see, e.g., Matter of Campbell v Pesce, 60 NY2d 165; but also see, People v Bartley, 47 NY2d 965 [recognizing the power to correct a plea before sentence is pronounced]). Nor is it a case where the court sought to exercise an inherent power which the courts have never been held to possess (see, e.g., People v Douglass, 60 NY2d 194 [no inherent power to dismiss for lack of prosecution]; but also see, People v Minaya, 54 NY2d 360; and People v Wright, 56 NY2d 613 [court has inherent power to correct clerical errors]).

Courts traditionally have inherent power to vacate orders and judgments obtained by fraud or misrepresentation. In this State, that power has been exercised in civil cases (Furman v Furman, 153 NY 309; Matter of Holden, 271 NY 212) and criminal cases (Matter of Lyons v Goldstein, 290 NY 19). This power, it should be noted, does not extend to intrinsic fraud, such as perjury at trial, which for policy reasons has been held not to invalidate a judgment (Jacobowitz v Herson, 268 NY 130; Matter of Holden, supra, p 218). However, the power does extend to a plea obtained by fraud and misrepresentation (Matter of Lyons v Goldstein, supra). Thus far, the inherent power to vacate a plea has been exercised upon application of the defendant. But there is no reason why the courts should not vacate a fraudulently obtained plea when the application is made by the prosecutor, provided there is no constitutional impediment.

The petitioner contends the double jeopardy clause poses such an impediment in this case because the plea has the same effect as acquittal after trial. He notes that the statute expressly provides that the accused must be informed that the plea is the equivalent of a verdict of not responsible by reason of a mental disease or defect (CPL 220.15 [3] [f]). He also notes that the court accepted the plea only after reviewing the facts and concluding that the People could not obtain a conviction because they could not meet their burden of proving his mental capacity beyond a reasonable doubt, as is also required by the statute (CPL 220.15 [5] [a], [b]).

The label which the Legislature has attached to the plea is not controlling for double jeopardy purposes (United States v Martin Linen Supply Co., 430 US 564, 571). It can only be said to constitute an acquittal if it actually represents a resolution of some or all of the factual elements of the crimes charged (United States v Martin Linen Supply Co., supra, p 571). In addition, the factual consideration must occur after jeopardy has attached (Serfass v United States, 420 US 377, 390-392).

Jeopardy cannot be said to have attached until the accused has been subjected to the risk of conviction (Serfass v United States, supra, p 392; Green v United States, 355 US 184,187). In the case now before us, the petitioner never faced that risk during the plea proceedings. Under the statute governing this special plea (CPL 220.15), there were only two options available to the court. First, the court could accept the plea, thus terminating the criminal proceedings and initiating the civil commitment proceedings (CPL 220.15 [6]). Second, the court could reject the petitioner’s plea offer and permit the criminal proceedings to continue in the normal course. In no event could the court make a binding factual finding of the defendant’s guilt. Therefore, the trial court correctly held that the double jeopardy clause does not preclude restoration of the criminal charges because jeopardy had not attached when the special plea was accepted. As the Supreme Court has noted: “an accused must suffer jeopardy before he can suffer double jeopardy” (Serfass v United States, supra, p 393).

Accordingly, the judgment of the Appellate Division should be reversed and the petition dismissed.

Judges Jasen, Meyer, Simons, Kaye and Alexander concur; Judge Titone taking no part.

Judgment reversed, without costs, and petition dismissed.