author: Jones, J.

text:
    Myron Mayer et al., Respondents-Appellants, v City Rent Agency, City of New York, et al., Appellants-Respondents, Coalition Against Rent Increase Pass-Alongs (CARIP) et al., Intervenors-Appellants, and Victor Marrero, as Commissioner of State Division of Housing and Community Renewal, Respondent.
    Argued November 29, 1978;
    decided December 21, 1978

      POINTS OF COUNSEL

      Stephen H. Deutschmeister, Harry Michelson, Lawrence A. Silver and Esther Niderberg for City Rent Agency, appellant-respondent.
    I. By the power vested in him by chapter 1012 of the Laws of 1971, the State commissioner approved Local Law No. 76 of 1977, and eliminated all infirmities of the local law based on holdings that it is more stringent or restrictive than Local Law No. 30 of 1970. (Matter of Tartaglia v McLaughlin, 297 NY 419; City of Troy v United Traction Co., 202 NY 333.) II. The legislative intent was to add labor cost adjustments to the maximum base rent, but not to the maximum collectible rent except within a single lx/i% limit. (Matter of Petterson v Daystrom Corp., 17 NY2d 32; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677; People v Ryan, 274 NY 149; Matter of Chatlos v McGoldrick, 302 NY 380; Matter of Capone v Weaver, 6 NY2d 307.) III. Legislative action to clarify legislative intent should be respected by the courts and given effect. (People v Feinlowitz, 29 NY2d 176; Matter of Chatlos v McGoldrick, 302 NY 380; Leighton v Bearman, 278 App Div 72, 302 NY 865.) IV. While Local Law No. 76 was under court challenge the rent commissioner could not issue final orders in labor recoupment proceedings. When directed by the court to resume its issuance of "labor” orders, the commission obeyed with all possible speed. There was no delay of the sort justifying retroactive rent increase orders. (Matter of Association of Surrogates & Supreme Ct. Reporters v Bartlett, 40 NY2d 571; Matter of Wong v Finkelstein, 299 NY 205; Matter of 2 Fifth Ave. Co. v New York City Conciliation & Appeals Bd., 57 AD2d 106; Matter of Amsterdam-Manhattan Assoc. v Joy, 42 NY2d 941; Matter of Parkview Holding Corp. v Joy, 58 AD2d 865; Matter of Parkview Holding Corp. v New York City Conciliation & Appeals Bd., 60 AD2d 845; Matter of Our Lady of Good Counsel R. C. Church & School v Ball, 45 AD2d 66, 37 NY2d 809; Matter of Pokoik v Silsdorf, 40 NY2d 769; Matter of Parkchester Apts. Co. v Lefkowitz, 51 AD2d 277, 41 NY2d 987; Matter of Tenants Committee of 425 East 86th St. v Joy, 58 AD2d 797.) V. The rent control law expressly requires rent increase orders to be prospective. (Matter of Sherman v Gabel, 22 AD2d 889; Matter of Sigsbee Holding Corp. v Leventhal, 42 AD2d 561, 35 NY2d 862; Matter of Epstein v Herman, 19 AD2d 74.)

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan of counsel), for City of New York, appellant-respondent.
    I. The court below incorrectly held that Local Law No. 76 of 1977 was invalid, instead, Local Law No. 76 should have been accorded conclusive effect in construing Local Law No. 30 of 1970, which was adopted prior to the Urstadt Law, and which as so construed is not violative of any end sought to be effected by the Legislature which enacted the Urstadt Law. (Abood v Hospital Ambulance Serv., 30 NY2d 295; Matter of Tenants’ Union of West Side v Beame, 40 NY2d 133; Matter of Chatlos v McGoldrick, 302 NY 380; Matter of Board of Educ. v City of New York, 41 NY2d 535.) II. In any event, the action of the State Commissioner of Housing and Community Renewal approving Local Law No. 76 of 1977 should be held, at least for the future, to obviate any Urstadt Law objection to Local Law No. 76.

      Robert Sugerman and Joshua Roth for Coalition Against Rent Increase Pass-Alongs and others, intervenors-appellants.
    I. Local Law No. 76 of 1977 did not substantially change the provisions of Local Law No. 30 of 1970 which, properly understood, carries out the city council’s expressed intent. II. The State commissioner has the power to approve more stringent local rent control laws. (Whitmarsh v Farnell, 273 App Div 584, 298 NY 336; People ex rel. Doscher v Sisson, 222 NY 387; People v Long Is. R. R., Co., 134 NY 506; People v Fire Assn. of Phila., 92 NY 311.)

      Robert S. Fougner and Gary Rosenberg for respondents-appellants. I.
    The Labor Cost Repeal Law is substantively more stringent and restrictive than the law in effect June 1, 1971, and thus violates the State restriction freeze law. (Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293; Matter of

      Chatlos v McGoldrick, 302 NY 380; Matter of Bradcord Assoc. v Conciliation & Appeals Bd. of City of N. Y., 52 AD2d 569; Matter of Clason Mgt. Corp. v Herman, 29 Misc 2d 258, 14 AD2d 765, 10 NY2d 1022; Matter of Irwin v State of New York Div. of Housing & Community Renewal, Off. of Rent Admin., 42 AD2d 349, 34 NY2d 908; Bowles v Seminole Rock & Sand Co., 325 US 410; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Matter of Hotel Assn. of N. Y. City v Weaver, 3 NY2d 206; Hotel Armstrong v Temporary State Housing Rent Comm., 11 AD2d 395.) II. The act of the city council in attempting to "clarify” its 1970 intent seven years after enactment of Local Law No. 30 cannot operate to revise Local Law No. 30 or dictate to this court how Local Law No. 30 should be interpreted. (People ex rel. Mutual Life Ins. Co. of N. Y. v Board of Supervisors of City & County of N. Y, 16 NY2d 424; Matter of Chatlos v McGoldrick, 302 NY 380; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293; RKO-Keith-Orpheum Theatres v City of New York, 308 NY 493; Engle v Talarico, 33 NY2d 237; Lascaris v Wyman, 61 Misc 2d 212.) III. The order affirming the judgment to the extent it prohibits the preissuance date effectiveness of the orders in pending proceedings should be reversed because that decision establishes the novel principle whereby applicants for administrative relief are deprived of property rights solely because the agency is prevented from issuing determinations pending the fictitious life of an invalid law. (Matter of Amsterdam-Manhattan Assoc. v Joy, 42 NY2d 941; Matter of Pokoik v Silsdorf, 40 NY2d 769; Matter of Parkchester Apts. Co. v Lefkowitz, 51 AD2d 277, 41 NY2d 987; Matter of Our Lady of Good Counsel R. C. Church & School v Ball, 45 AD2d 66, 37 NY2d 809; Matter of Vanderbilt 77th St. Assoc. v Concilation & Appeals Bd., 51 AD2d 946, 39 NY2d 707; Matter of 2 Fifth Ave. Co. v New York City Conciliation & Appeals Bd., 57 AD2d 106; Matter of Tenants Committee of 425 East 86th St. v Joy, 58 AD2d 797; Matter of Parkview Holding Corp. v Joy, 58 AD2d 865; Matter of Parkview Holding Corp. v New York City Conciliation & Appeals Bd., 60 AD2d 845; Parkchester Tenants’ Assn. v Yosewein & Parkchester Mgt. Corp., 79 Misc 2d 859, 47 AD2d 721, 36 NY2d 644.) IV. The order should be reversed because the agency’s concerted refusal to act and issue orders since July 11,1978 in virtual defiance of the Chief Judge’s order constitutes the living proof that respondent’s entire scheme of inaction both ab initio and now is the result of deliberate delay. V. The order below should be reversed because the prohibition against the issuance of retroactive orders is inapplicable to the situation before the court. (Matter of Capone v Weaver, 6 NY2d 307; Matter of Parkview Holding Corp. v Joy, 58 AD2d 865.) VI. This court has jurisdiction to entertain the validity of the Marrero ruling and it is desirable that it settles this question now. (F. T. B. Realty Corp. v Goodman, 300 NY 746, 301 NY 346; Matter of Tartaglia v McLaughlin, 297 NY 419; Fruhling v Amalgamated Housing Corp., 9 NY2d 541; I. L. F. Y. Co. v Temporary State Housing Rent Comm., 10 NY2d 263; Matter of Concord Realty v City of New York, 30 NY2d 308; Teeval Co. v Stern, 301 NY 346; 903 Park Ave. Corp. v City Rent Agency, 31 NY2d 330.) VII. The State enabling act as amended by chapter 1012 of the Laws of 1971 provides no authority for the housing commissioner to approve local laws and ordinances as distinguished from rules and regulations. (Urstadt v Walsh, 67 Misc 2d 729; Imperial Realty Co. v City Rent Agency, 71 Misc 2d 688; 903 Ave. Corp. v City Rent Agency, 31 NY2d 330; Matter of Kerr v Urstadt, 72 Misc 2d 942, 41 AD2d 1031, 33 NY2d 519; Matter of 241 East 22nd St. Corp. v City Rent Agency, 33 NY2d 134; 210 East 68th St. Co. v City Rent Agency, 34 NY2d 560; Parrino v Lindsay, 29 NY2d 30; Bowles v Seminole Rock & Sand Co., 325 US 410; Matter of Mounting & Finishing Co. v Mc-Goldrick, 294 NY 104; Matter of Hotel Assn. of N. Y. City v Weaver, 3 NY2d 206; Hotel Armstrong v Temporary State Housing Rent Comm., 11 AD2d 395.) VIII. Chapter 1012 if interpreted to delegate veto power over a local law to a State administrator would be unconstitutional as constituting an illegal delegation of power. (Matter of Kerr v Urstadt, 33 NY2d 134.) IX. The Marrero approval is invalid because chapter 1012 only prescribes for preapproval. X. The Marrero approval of Local Law No. 76 should be declared void because it is time-barred. XI. The Marrero directive should be declared invalid because it violates the principle of stare decisis. XII. The Marrero directive is invalid because it ascribes a retroactive operation to chapter 1012. (Matter of Shafter v Gabel, 16 NY2d 513; Matter of Neulist v Weaver, 2 AD2d 530, 2 NY2d 889.)

      Martin A. Shlufman and Harold Zucker for respondent.
    The language of subdivision 5 of the Local Emergency Housing Rent Control Act, as last amended by chapter 1012 of the Laws of 1971, was reasonably interpreted by the commissioner to authorize his approval of a local law which is more stringent or restrictive than a prior local law. (Lyon v Manhattan Ry. Co., 142 NY 298; Matter of Fiesta Realty Corp. v McGoldrick, 284 App Div 551, 308 NY 869; Matter of 241 East 22nd St. Corp. v City Rent Agency, 33 NY2d 134; Matter of Leap v Levitt, 57 AD2d 1021.)

      Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen and Samuel A. Hirshowitz of counsel),
    in his statutory capacity under section 71 of the Executive Law and CPLR 1012 (subd [6]).
   OPINION OF THE COURT

Jones, J.

New York City Local Law No. 76 of 1977, the so-called Labor Cost Repeal Law, is invalid because it violated the statutory prohibition against the enactment of local laws subjecting rent controlled housing accommodations to more stringent or restrictive regulation and control than that in effect on June 1, 1971, and was not validated in consequence of its approval by the State Commissioner of Housing and Community Renewal on October 12, 1978.

In 1970 the City of New York enacted Local Law No. 30 which substantially revised the city rent control laws. By its provisions there was required to be established, effective January 1, 1972, a maximum base rent ceiling for each rent controlled apartment (MBR), calculated to provide revenue required for economic operation of the premises together with a stated minimum return on the landlord’s investment. The MBR was to be recalculated every two years thereafter to keep abreast of changes in operating costs. In order to avoid precipitate increases in rents for individual apartments, Local Law No. 30 provided that when the MBR was more than 7Vi% above the rent in effect on December 31, 1971, with certain exceptions not presently relevant, the collectible rent could be increased by no more than 71^% a year.

Local Law No. 30 also provided that, "[notwithstanding any of the foregoing limitations”, maximum rent should be increased by individual upward adjustments ordered by the City Rent Agency when labor expenses incurred under a collective bargaining agreement exceeded the provision for payroll expenses employed in computing the expense segment of the MBR. This supplemental provision has been referred to as the "labor cost pass-along” provision. Forms by which landlords might apply for such labor cost adjustments were not provided by the City Rent Agency, however, and such applications were not accepted until March, 1977 — and then allegedly only after mandamus proceedings had been commenced to compel implementation of the 1970 local law. According to the landlords, the agency represented in March, 1977 that applications would be processed within four weeks after filing and that, in view of such expedited processing, orders issued in consequence (referred to as section 33.8 orders) would be effective when issued. In the summer of 1977 landlords, still unhappy with what they perceived as the snail-like progress being made by the agency, began instituting further CPLR article 78 proceedings to compel it to act on pending applications.

On October 28, 1977 the city counsel adopted the Labor Cost Repeal Law as Local Law No. 76 of 1977. It is this local law which is the subject of the present litigation. In form it purported to "clarify” the legislative intent in the prior enactment of Local Law No. 30 of 1970, namely that it had then been intended that labor cost pass-alongs were to be included in and to be subject to, and were not to be added to, the 1Vi% annual rent increase ceiling and that, as to any labor cost pass-along theretofore granted that had resulted in a rent increase in excess of 7in one year, such increase was void and was to be refunded to the tenant.

The landlord plaintiffs on November 7, 1977 instituted the present action seeking a declaration that Local Law No. 76 of 1977 was invalid as in conflict with a 1971 amendment to the State enabling act (L 1962, ch 21). In 1971 the State Legislature had enacted two amendments to the enabling act which are pertinent for present purposes, contained in chapters 372 and 1012 of the Laws of 1971. Chapter 372 provided in part: "No housing accommodations presently subject to regulation and control pursuant to local laws or ordinances adopted or amended under authority of this subdivision shall hereafter be by local law or ordinance subjected to more stringent or restrictive provisions of regulation and control than those presently in effect.” (Effective June 1, 1971.) By chapter amendment, chapter 1012 amended the foregoing provision by insertion of the underscored portion below, to read in full as follows: "No housing accommodations presently subject to regulation and control pursuant to local laws or ordinances adopted or amended under authority of this subdivision shall hereafter be by local law or ordinance or by rule or regulation which has not been theretofore approved by the state commissioner of housing and community renewal subjected to more stringent or restrictive provisions of regulation and control than those presently in effect.” It is the landlords’ contention that Local Law No. 76, purporting to put the supplemental labor cost pass-along back under the 71A% ceiling, created a more stringent or restrictive provision than that under Local Law No. 30 of 1970 in which the labor cost pass-along had been authorized as an additive above the ceiling. By order of Supreme Court on November 16, 1977, the tenants coalition and the tenants were made parties to the action as intervenors-defendants.

While the declaratory judgment action was pending in Supreme Court, Mr. Justice Arnold Fraiman issued an order on December 13, 1977 permitting landlords who had collected increases under section 33.8 orders theretofore issued to deposit such collections in escrow accounts rather than to make refunds to tenants as directed by Local Law No. 76. Answers were served by defendants and cross motions were made for summary judgment.

On April 6, 1978 Mr. Justice Fraiman granted summary judgment in favor of the landlords declaring Local Law No. 76 of 1977 invalid and enjoining its enforcement, directing the City Rent Agency to issue section 33.8 orders as though Local Law No. 76 had never been enacted, dissolving the December 13, 1977 order (that had permitted escrow deposits) as no longer necessary and providing for collection of increases previously granted but not collected (94 Mise 2d 188). The court declined, however, to include in its order a provision, requested by the landlords, by which section 33.8 orders thereafter granted on applications pending on October 28, 1977 (the date of enactment of Local Law No. 76) would have been effective as of that date, but directed instead only that orders on such applications should be issued pursuant to the law in effect immediately prior to the enactment of the local law. (On April 17, 1978 Mr. Justice Fraiman dismissed the article 78 proceedings instituted in the summer of 1977 to compel the rent agency to process pending section 33.8 applications as moot in view of the disposition in the declaratory judgment action.)

The City Rent Agency promptly served notice of appeal (thereby automatically staying the effectiveness of the judgment granted at nisi prius), and the landlords cross-appealed. On application of the landlords the Appellate Division reinstated authorization for the escrow of rent increases collected pending disposition of the cross appeals, but denied any other modification of the statutory stay. On June 29, 1978 the Appellate Division unanimously affirmed the judgment of Supreme Court declaring Local Law No. 76 invalid (63 AD2d 953). (On the same day the Appellate Division affirmed the dismissal of the article 78 proceedings as moot.)

The City Rent Agency, the city and the intervenor tenants then appealed to our court as of right on asserted constitutional questions. We dismissed these appeals on the ground that no constitutional question was directly involved (45 NY2d 818, 822). The City Rent Agency, the intervenor tenants and the landlords applied for leave to appeal. While these applications were pending, the State Commissioner of Housing and Community Renewal on October 12, 1978, asserting authority under chapter 1012 of the Laws of 1971 to validate Local Law No. 76 even if it were deemed to impose more stringent or restrictive regulatory control, announced his approval of Local Law No. 76. The landlords then requested that the new issues raised by this approval be added to the appeal and reiterated arguments that appeals from the Appellate Division order be entertained. We solicited informal submissions from all parties with respect to the addition of the new issues as requested by the landlords. After consideration, we granted leave to appeal to all interested parties, added consideration of the validity of the October 12, 1978 approval to the appeal so entertained, and joined the State Commissioner of Housing and Community Renewal as a party respondent to the appeal.

On Application of the landlords the statutory stay which was triggered by the appeals by the City Rent Agency and the city was modified to continue authorization for escrow deposit of collected rent increases, and in addition to authorize further collection of rent increases granted by section 33.8 orders (subject to escrow deposit) and to direct the City Rent Agency to process pending applications for other section 33.8 orders, again with collection and escrow deposit of all rent increases allowed.

There are thus presented for our resolution three questions: Did Local Law No. 76 of 1977 subject controlled premises to more stringent or restrictive regulation or control than previously existed? If it did is it nonetheless valid in consequence of the approval by the State Commissioner of Housing and Community Renewal on October 12, 1978? If Local Law No. 76 is invalid are the landlords entitled in the circumstances to a direction that section 33.8 orders granting rent increases based on labor cost pass-alongs be given retroactive effect? We address these questions in that order.

We concur in the determination of both courts below that Local Law No. 76 did impose more stringent and restrictive regulatory control than was previously in effect, and for the reasons set forth in the opinion of Mr. Justice Fraiman. We add only that the substance rather than the form of the local law is determinative. The city council’s carefully calculated characterization of Local Law No. 76 as "clarifying” its intent when Local Law No. 30 was enacted must give way to the substantive fact that under Local Law No. 30 as originally enacted authorized rent increases based on labor pass-along were allowed in addition to annual 1Vi% permitted increases, whereas Local Law No. 76 purported to place labor cost pass-along increases under the general 1V2% ceiling.

The courts below had no opportunity, of course, to consider the effect to be given the October 12, 1978 approval of Local Law No. 76 by the State Commissioner of Housing and Community Renewal. We invited briefing and argument, both informally prior to directing enlargement of the appeal and formally on the appeal itself, as to the propriety and desirability of our determining this question on this appeal. It is not contested that this court has jurisdiction to address the issue. (Cf. I. L. F. Y. Co. v Temporary State Housing Rent Comm., 10 NY2d 263, 270; Fruhling v Amalgamated Housing Corp., 9 NY2d 541; F. T. B. Realty Corp. v Goodman, 300 NY 746, and 301 NY 346; Matter of Tartaglia v McLaughlin, 297 NY 419; but see 903 Park Ave. Corp. v City Rent Agency, 31 NY2d 330.) Whether the court should elect to exercise such authority is a separate matter. In opposition it is argued only that it would be advantageous to have the benefit of consideration at nisi prius and then at the Appellate Division; no one suggests, however, that there are aspects of the question which can only be explored at an evidentiary hearing. Persuading us to address and determine the question in this instance is the circumstance that if the October 12, 1978 approval of the State commissioner were legally effective to validate Local Law No. 76 all the issues tendered on the appeal as unenlarged would thereby be rendered moot.

Accordingly we address the merits, the determination of which turns on the significance to be given the insertion in chapter 372 of the Laws of 1971 by chapter 1012 of the same laws of the words: "or by rule or regulation which has not been theretofore approved by the state commissioner of housing and community renewal.” More precisely the question is whether the clause "which has not been theretofore approved by the state commissioner of housing and community renewal” modifies only the words "rule or regulation” added by the amendment or extends as well to the words "local law or ordinance” contained in the provision as initially enacted.

As candidly recognized by the State commissioner, "[u]nlike the package of bills which had just been enacted [the package of rent control bills recommended by the Governor which became chapters 371-374 of the Laws of 1971], this bill [which became chapter 1012] was not accompanied by a Memorandum of the State Executive Department, it was not the subject of comment by any Legislative report, nor was it approved by Governor Rockefeller with any statement of explanation regarding the purpose of this amendment”. It is not disputed that chapter 372 was part of a series of bills prompted by the State’s concern over the abandonment and divestment of controlled housing in New York City attributable in large part to uneconomic rents. The objective of the State legislative action was "[b]y limiting the fear of more stringent control [to] encourage owners to invest in the maintenance and improvement of existing housing units and thereby help to stem the tide of abandonment of sound buildings in the City”. (NY Legis Ann, 1971, p 313.) The original constraint related only to the imposition of further restriction by local law or ordinance. It appears that it was anxiety that the undesired restrictions might also be imposed by local rule or regulation which led to the enactment of chapter 1012. One may surmise that, recognizing the practical difficulty of determining whether a particular, perhaps complex or minutely detailed, rule or regulation was to be classified as more or less restrictive, the Legislature sought to create a practical means for resolving the issue. It decided that, inasmuch as no rule or regulation could stray too far from prescription of local law or ordinance, responsibility for resolving questions as to whether a particular rule or regulation was in conformity with the State’s supervisory concern was properly to be vested in the State commissioner.

It is relevant, although not determinative, that a few weeks after the enactment of Local Law No. 76, the then acting State Commissioner of Housing and Community Renewal, in response to an inquiry from the then Mayor of New York City, stated in the course of an extended opinion letter, dated December 6, 1977: "Thus, it is quite clear that the prior approval of the State Commissioner of Housing and Community Renewal applies to administrative rules and regulations only — not to local laws and ordinances.” Referring to this letter, on December 29, 1977 the Corporation Counsel of the City of New York advised the City Commissioner of Housing Preservation and Development: "In addition to the fact that the language of the above quoted amendment [chapter 1012] refers only to 'rule or regulation’, and not to local law, research of the amendment does not disclose any legislative intention to subject local law to State administrative approval. Nor, in general, is there any such precedent regarding enactments of the City Council.” In subsequent litigation the city took the same position.

The approval of the succeeding State commissioner on October 12, 1978 in response to a further inquiry from the subsequent Mayor, concedes that the "underlying issue is far from clear”, and recognizes that an effort to accomplish the objectives of Local Law No. 76 failed in the Senate in 1978. The State commissioner, without articulation of his rationale, concludes, however: "Having reexamined the matter anew, I have concluded that there is sufficient and reasonable basis to rule that the State Commissioner of Housing does have authority to approve Local Law 76 of 1977. Accordingly I am withdrawing the earlier position on this issue taken by this Division in Acting Commissioner Goldman’s letter to Mayor Beame.” The letter concluded: "pursuant to Chapters 372 and 1012 of the Laws of 1971,1 am hereby approving Local Law 76 of 1977.”

Chapter 1012 as enacted contains the title identification: "An Act to amend the local emergency housing rent control act, in relation to regulations. ” (Emphasis added.) As a matter of distribution of governmental authority, while instances are cited in which the Legislature has vested veto or approval authority over local laws in a State administrative agency or official, no instance is cited when this has been done where the State agency or official exercises no operational responsibility with respect to the subject matter of the local law. To state the proposition baldly — that the efficacy of local legislative action shall depend on acquiescence of a State administrative official — runs counter to normal expectation.

Recognizing that the result might be different had the words added by chapter 1012 initially been included in in chapter 372, we conclude, in the absence of persuasive evidence of legislative intent to the contrary, that the authority of approval of the State Commissioner of Housing and Community Renewal is limited to local rules and regulations and does not extend to local laws or ordinances. Accordingly we hold that the announcement on October 12, 1978 of his approval of Local Law No. 76 does not serve to resuscitate that law.

Finally, we turn to the contention on the landlords’ appeal —that, in the particular circumstances of this litigation, concededly a departure from usual practice, section 33.8 orders granting rent increases in excess of 7 Vi % per year predicated on labor cost pass-along in response to applications pending on October 28, 1977 (the date of enactment of Local Law No. 76) should be made effective as of the date they would have been issued but for the intervention of Local Law No. 76. It must be recognized, on the one hand, that the City Rent Law (Administrative Code of City of New York, § Y51-5.0, subd j) provides: "No increase or decrease in maximum rent shall be effective prior to the date on which the order therefor is issued, except as hereinafter provided”, and that such has in general been the policy in the administration of rent control legislation since World War II. On the other hand, we have held in some circumstances that calculated action on the part of municipal authorities to frustrate rights of applicants may give rise to the invocation of unusual remedies (Matter of Faymore Dev. Co. v Board of Stds. & Appeals of City of N. Y., 45 NY2d 560; Matter of Amsterdam-Manhattan Assoc. v Joy, 42 NY2d 941; Matter of Pokoik v Silsdorf, 40 NY2d 769; Matter of Our Lady of Good Counsel R. C. Church & School v Ball, 38 NY2d 780).

On the record now before us we cannot determine with certainty either that the landlords are not entitled to the relief that they seek, or that they are entitled to such relief in whole or in part. Additionally it may well be that any resolution of their application can only properly be determined on the basis of the facts applicable to the particular controlled premises. Accordingly we affirm the denial of relief by the Appellate Division, but without prejudice to the right of any of the landlords in this action, if he or it be so advised, to apply at Special Term, Supreme Court, on such notice as may be directed, for an order with respect to any particular application for a section 33.8 order directing that the increase in rent granted by the City Rent Agency shall be effective prior to the date of issuance of such order, or for such other or different relief as may be just and proper in the circumstances.

For the reasons stated the order of the Appellate Division should be modified, with costs to plaintiffs on defendants’ and intervenors’ appeals and without costs to defendants or intervenors on plaintiffs’ appeal, and the case remitted to Supreme Court for entry of an appropriate judgment containing the further declaration that the approval of Local Law No. 76 of 1977 by the State Commissioner of Housing and Community Renewal on October 12, 1978 did not validate Local Law No. 76 of 1977.

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

Order modified, with costs to plaintiffs on defendants’ and intervenors’ appeals and without costs to defendants or intervenors on plaintiffs’ appeal, and the case remitted to Supreme Court, New York County, for the entry of judgment and further proceedings, if any, in accordance with the opinion herein and, as so modified, affirmed.

        (Matter of Sulzberger-Rolfe v Joy, 63 AD2d 1126; Matter of Freedman v Joy, 63 AD2d 1123.)


source: Caselaw Access Project

author: Cooke, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Martin Settles, Appellant.
    Argued December 1, 1978;
    decided December 21, 1978

      POINTS OF COUNSEL

      Russell C. Morea for appellant.
    I. The lineup was improperly conducted since appellant could not waive counsel in the absence of counsel, appellant did not waive counsel and the prior out-of-court photo confrontations were so suggestive as to be conducive to irreparable misidentification and tainted both the lineup and in-court identification. (United States v Wade, 388 US 218; Gilbert v California, 388 US 263; Stovall v Denno, 388 US 293; Kirby v Illinois, 406 US 682; People v Lopez, 28 NY2d 23, 404 US 840; People v Wooden, 31 NY2d 753; People v Hobson, 39 NY2d 479; United States ex rel. Lopez v Zelker, 344 F Supp 1050, 465 F2d 1405, 409 US 1049; People v Ramos, 40 NY2d 610; People v Macedonio, 42 NY2d 944.) II. It was error to deny appellant a severance. (People v Fisher, 249 NY 419; People v Payne, 35 NY2d 22; People v La Belle, 18 NY2d 405; People v Feolo, 282 NY 276; People v Snyder, 246 NY 491.) III. The guilt of appellant was not proven beyond a reasonable doubt. (People v Rossi, 11 NY2d 379; People v Cohen, 223 NY 406; People v Clougher, 246 NY 106; People v White, 26 NY2d 276; People v Woffard, 52 AD2d 779; People v Clarke, 43 AD2d 834; People v Cleague, 22 NY2d 363; People v Taddio, 292 NY 488; People v Carpenito, 292 NY 498.) IV. The verdict was coerced. (People v Pauley, 281 App Div 223; People v Gottlieb, 44 AD2d 587, 36 NY2d 629.) V. The evidence seized in the Sloan apartment should have been suppressed since it was seized in violation of appellant’s rights under the Fourth and Fourteenth Amendments to the United States Constitution. (People v Loria, 10 NY2d 368; Terry v Ohio, 392 US 1; Warden v Hayden, 387 US 294; Carroll v United States, 267 US 132; Coolidge v New Hampshire, 403 US 443; Bumper v North Carolina, 391 US 543; United States v Smith, 308 F2d 657, 372 US 906.) VI. The conviction under the third count of the indictment was inconsistent and repugnant to the acquittal under the fourth count of the indictment. (People v Hovnanian, 16 AD2d 818, 373 US 939; People ex rel. Troiani v Fay, 13 AD2d 999; People v Bullis, 30 AD2d 470; People v Munroe, 190 NY 435; People v Bordonaba, 63 Misc 2d 898; People v Pavlisak, 292 NY 504; People v Sciascia, 268 App Div 14; United States v Kensil, 295 F 489; Dunn v United States, 284 US 390.) VII. An accumulation of prejudicial error committed by the court denied appellant a fair trial. VIII. The prosecutor committed prejudicial error in his summation. (People v Leavitt, 301 NY 113; People v Lightbourne, 34 AD2d 799; People v Gould, 25 AD2d 160; People v Blackman, 31 AD2d 626; People v Rial, 25 AD2d 28; People v Burton, 46 AD2d 774; People v Fluker, 51 AD2d 1045; People v Tassiello, 300 NY 425; People v Cipolla, 6 NY2d 922; People v Robinson, 36 NY2d 224.) IX. The charge was improper as to the burden of proof. (People v Bell, 45 AD2d 362.)

      John J. Santucci, District Attorney (Joan L. Craig and Barry A. Schwartz of counsel), for respondent.
    I. Appellant’s express waiver of his right to the presence of counsel at the lineup which was knowingly, voluntarily, and intelligently made was not ineffective under the Hobson rationale. (People v Hobson, 39 NY2d 479; People v Lopez, 28 NY2d 23; People v Macedonio, 42 NY2d 944; People v Cole, 41 NY2d 944; People v Ramos, 40 NY2d 610; Miranda v Arizona, 384 US 436; People v Gursey, 22 NY2d 224; Kirby v Illinois, 406 US 682; Escobedo v Illinois, 378 US 478; People v Di Biasi, 7 NY2d 544.) II. The identification witnesses’ lineup and in-court identifications were reliable and were not the result of identification procedures "so suggestive as to give rise to a very substantial likelihood of misidentification” and were therefore properly received at trial. (Simmons v United States, 390 US 377, 384.) (Manson v Brathwaite, 432 US 98; People v Logan, 25 NY2d 184; Stovall v Denno, 388 US 293; People v Leonti, 18 NY2d 384, 389 US 1007.) III. The trial court did not abuse its discretion in denying the motion for a separate trial. (People v Payne, 35 NY2d 22; People v Victory, 33 NY2d 75; Parker v United States, 404 F2d 1193, 394 US 1004; United States v Kahn, 381 F2d 824; People v Owens, 22 NY2d 93; Bruton v United States, 391 US 123; People v Kampshoff, 53 AD2d 325; United States v Cepulonis, 530 F2d 238; People v Brown, 26 NY2d 88; Chambers v Mississippi, 410 US 284.) IV. The evidence at trial was sufficient to sustain the jury’s verdict that appellant was guilty of robbery in the first degree. (People v Jackson, 44 NY2d 935; People v Keitt, 42 NY2d 926; People v Robinson, 36 NY2d 224.) V. The denial of appellant’s motion to suppress physical evidence, based on the affirmed finding of the trial court that Betty Sloan consented to the search of her apartment, a finding that is supported by the record, should not be disturbed. (People v Lane, 10 NY2d 347; Bumper v North Carolina, 391 US 543; Schneckloth v Bustamonte, 412 US 218; People v Gonzalez, 39 NY2d 122; United States v Cepulonis, 530 F2d 238; People v Oden, 36 NY2d 382; People v Leonti, 18 NY2d 384, 389 US 1007.) VI. The verdict was not coerced. (Williams v United States, 419 F2d 740.) VII. The jury’s verdict convicting appellant for the robbery of Robert Delaney while acquitting him for the robbery of Jean Brodus was not repugnant. (Dunn v United States, 284 US 390; People v Williams, 47 AD2d 262; People v Sciascia, 268 App Div 14, 294 NY 927; People v Wells, 48 AD2d 934; People v Belvin, 47 AD2d 929; People v Pugh, 36 AD2d 845; People v Munroe, 190 NY 435; People v Kirkland, 50 AD2d 574; People v Scheppa, 295 NY 359; United States v Wilson, 342 F2d 43.) VIII. The court’s rulings and conduct throughout the lengthy trial were correct and fair. (People v Ohanian, 245 NY 227; People v Mendes, 3 NY2d 120; People v Hinton, 31 NY2d 71; People v Russo, 46 AD2d 904; People v Matos, 46 AD2d 903; People v Gonzales, 38 NY2d 208; Lutwak v United States, 344 US 604; People v Kingston, 8 NY2d 384.) IX. The People’s summation and the court’s charge were proper and did not deprive appellant of a fair trial. (People v Ashwal, 39 NY2d 108; Williams v Brooklyn EL R. R. Co., 126 NY 96; People v Marks, 6 NY2d 67, 362 US 912; People v Rolchigo, 33 AD2d 1060, 28 NY2d 644; People v Mull, 167 NY 247; People v

      Brosnan, 32 NY2d 254; People v Bell, 45 AD2d 362; People v Jones, 27 NY2d 222.)
   OPINION OF THE COURT

Cooke, J.

Following a joint trial with codefendant Osborne (Sonny) Boalds, defendant appeals from his judgment of conviction upon a jury verdict for robbery in the first degree (Penal Law, § 160.15). He was sentenced as a predicate felony offender to a term of imprisonment of not less than 10 nor more than 20 years.

The threshold issue we address is whether the identifications made by witnesses at a postindictment, prearraignment corporeal viewing of the then unrepresented defendant should have been excluded where defendant, in the absence of counsel, orally waived his right to have an attorney present at the lineup.

The order of the Appellate Division affirming the conviction should be reversed. The filing of an indictment constitutes the commencement of a formal judicial action against the defendant and is equated with the entry of an attorney into the proceeding. This being the case, a defendant in a postindictment, prearraignment custodial setting, even though not then represented by an attorney, may not in the absence of counsel waive his right to have counsel appear at a corporeal identification. Hence, any actions taken by the police with respect to an indicted but unarraigned defendant which impinge upon his right to counsel may not be used against him at trial.

The facts are uncomplicated and undisputed. On the night of March 9, 1974, two men robbed a bar, its manager and one of its patrons in Queens County. Responding to a radio call, two police officers arrived at the location just as one of the perpetrators was leaving the scene. In an exchange of gunfire one of the officers was fatally wounded, and his partner, after giving chase, soon lost sight of the suspect. Fortunately, later that night the police were directed to proceed to the apartment of Boalds’ common-law wife. After receiving permission to enter and search the premises, they discovered fruits of the earlier robbery, clothes apparently worn by the perpetrators and a gun which later proved to be the weapon which fired the fatal shots. Also in the apartment were Boalds and the defendant. While Boalds was immediately placed under arrest, defendant was merely brought to a police station for further investigation and was released the following morning.

On May 1, 1974, the Queens County Grand Jury returned an indictment charging defendant and Boalds with two counts of murder, two counts of robbery and another of possession of a dangerous weapon arising out of the events of the night of March 9. At that time, however, defendant could not be found and a warrant was issued for his arrest. He was later apprehended and placed in custody in Atlanta, Georgia, and was returned to New York on August 14, 1974. Immediately upon his arrival, defendant was transported to the 113th Precinct in order that he be placed in a lineup. Although not advised that he was under indictment, defendant was given his fourfold Miranda warnings (Miranda v Arizona, 384 US 436), whereupon he agreed to appear in the lineup without an attorney present. Of the five individuals who were present in the bar on the night of the crimes and who viewed the lineup, two were able to identify defendant as one of the perpetrators.

In this State, the right of a criminal defendant to interpose an attorney between himself and the sometimes awesome power of the sovereign has long been a cherished principle. As early as 1777 (NY Const of 1777, art XXXIV), it had been recognized that even the most intelligent and educated layman lacks the skill and knowledge of the legal system to adequately prepare a defense, no matter how strong it might be (see People ex rel. Burgess v Risley, 66 How Pr 67). This need, moreover, has been recognized as all the more vital with respect to the unsophisticated, who are often uneducated in the ways of the criminal justice system and unaware of the role counsel can play in protecting their interests. "There has been no time in the governmental history of this State when the court lacked the power to assign counsel for the defense of indigent persons charged with crime” (People ex rel. Acritelli v Grout, 87 App Div 193, 195-196, affd on opn of App Div 177 NY 587). When a person charged with a crime has been unable to engage counsel because of financial circumstances, it has long been the duty of the court before whom he is brought to assign counsel (see People v Thompson, 205 App Div 581, 582). Indeed, the law has provided for free legal representation of the poor in criminal cases (see, generally, County Law, art 18-A, as enacted by L 1961, ch 365, § 2, as amd; see, also, Code Crim Pro, § 308, as enacted by L 1881, ch 504, § 308, as amd) well before Gideon v Wainwright (372 US 335 [1963]). In short, we recognize that the assistance of counsel is essential not only to insure the rights of the individual defendant but for the protection and well-being of society as well. The right of any defendant, however serious or trivial his crime, to stand before a court with counsel at his side to safeguard both his substantive and procedural rights is inviolable and fundamental to our form of justice (see People v Donovan, 13 NY2d 148, 151).

So valued is the right to counsel in this State (NY Const, art I, § 6), it has developed independent of its Federal counterpart (US Const, 6th Amdt). Thus, we have extended the protections afforded by our State Constitution beyond those of the Federal —well before certain Federal rights were recognized (e.g., Escobedo v Illinois, 378 US 478; Massiah v United States, 377 US 201). For example, in People v Di Biasi (7 NY2d 544, 549-551), we held inadmissible statements made by an indicted defendant in a capital case who had previously retained counsel, but who when questioned neither objected to such inquiries, asked to call his lawyer or requested his lawyer to be present (see, generally, 61 Colum L Rev 744; 51 Cornell LQ 356). People v Waterman (9 NY2d 561, 564-566), extended the rule of Di Biasi to all postindictment interrogation in the absence of counsel regardless of the nature of the offense and irrespective of whether the defendant had actually retained counsel at the time of the interrogation. The genesis of the rule was completed after the decisions in People v Meyer (11 NY2d 162, 164-165) and People v Rodriguez (11 NY2d 279, 284), wherein it was made clear that the right to counsel attaches after indictment or arraignment and that a formal request for counsel is unnecessary for that right to attach (see, also, People v Robinson, 13 NY2d 296, 301; People v Gunner, 15 NY2d 226, 231-232; People v Friedlander, 16 NY2d 248, 250 [application of the general rule to varying factual situations]; cf. People v Blake, 35 NY2d 331, 339-340 [right to counsel attaches upon the filing of an accusatory instrument]).

In addition to their right to counsel aspect, these decisions vindicated an indicted or arraigned defendant’s privilege against compulsory self incrimination. Absent the advice of an attorney, the average person, unschooled in legal intricacies, might very well unwittingly surrender this right when confronted with the coercive power of the State and its agents (see People v Hobson, 39 NY2d 479, 485).

However laudable the results of these cases may have been, the rules they enunciated operated in a rather haphazard fashion. For while they insisted that some formal procedure in addition to arrest be initiated, whether by indictment or arraignment, there was no remedy for purposely delayed arraignment and, consequently, there were no remedies to combat abuses in connection with prearraignment, preindictment interrogation (see Rothblatt & Rothblatt, Police Interrogation: Right to Counsel and Prompt Arraignment, 27 Brooklyn L Rev 24, 36-38). This problem was ameliorated by People v Donovan (13 NY2d 148, 151-152, supra) and People v Arthur (22 NY2d 325, 329) which require suppression of any statements elicited from a criminal defendant represented by counsel unless the defendant has first waived his rights in the presence of his attorney (see, also, People v Hobson, supra; People v Townes, 41 NY2d 97, 102-103). Additionally, inasmuch as Di Biasi and its progeny arose prior to Escobedo (supra), Massiah (supra) and Miranda (supra), they contained no discussion of the circumstances in which an indicted defendant could waive counsel.

The initial responses to this problem were inconclusive and somewhat contradictory (compare People v Bodie, 16 NY2d 275, 279, with People v Vella, 21 NY2d 249, 251; cf. State v Green, 46 NJ 192, 200-201; Commonwealth v Frongillo, 359 Mass 132). Later, a closely divided court held that a postindictment waiver of counsel by a defendant not represented by an attorney may be effectuated without having a lawyer present so long as he was administered his Miranda warnings (People v Lopez, 28 NY2d 23, 25-26, cert den 404 US 840). A forceful dissent, however, indicated that a postindictment, unrepresented defendant "is entitled to the advice of a lawyer and that the right may not be waived except in the presence and with the acquiescence of counsel” (28 NY2d, at p 26 [Breitel, J.], supra; see People v Blake, 35 NY2d 331, 340, supra; United States ex rel. Lopez v Zelker, 344 F Supp 1050, 1054, affd 465 F2d 1405, cert den 409 US 1049 [adopting the reasoning of the Lopez dissent]). Lopez was subsequently overruled as it represented nothing more than a sudden, unexplained retreat from an established line of authority (People v Hobson, 39 NY2d 479, 486-488, supra).

Having completed this historical overview, we take this opportunity to make explicit that which was implicit in Hobson: a criminal defendant under indictment and in custody may not waive his right to counsel unless he does so in the presence of an attorney (see People v Blake, 35 NY2d 331, 339-340, supra; People v Reyes, NYLJ, Nov. 18, 1976, p 11, col 5, affd 57 AD2d 738; People v Babcock, 91 Misc 2d 921; 5 Fordham Urb LJ 401, 409; 51 St John’s L Rev 216, 220-222).

Once an indictment is returned against a particular defendant, the character of the police function shifts from investigatory to accusatory (People v Lopez, supra, at p 28 [dissenting opn]). For this reason, the warnings which are sufficient to comply with the strictures against testimonial compulsion do not satisfy the higher standard with respect to a waiver of the right of counsel. Prior to indictment, there may be valid reasons why an uncounseled suspect might wish to deal with the police. He may nourish the hope, however vain, that he can avoid any legal entanglement by simply clearing up a few loose ends. Alternatively, he may feel that by getting into the good graces of the police as an informer he might be able to avoid indictment and trial (see United States v Massimo, 432 F2d 324, 327 [Friendly, J., dissenting]).

No such opportunity is afforded him once the Grand Jury has spoken. At that point, there is no longer any inquiry into an unsolved crime and the suspect is now the accused. He cannot make any arrangement with the police which is not subject to the ultimate approval of the court and there ought be no necessity for further police investigation. In a very real sense, the indictment represents a method of commencing formal judicial proceedings against the defendant (People v Blake, supra, at p 339; Kirby v Illinois, 406 US 682, 688) and it is at that point at which the assistance of counsel is indispensable. To insure that right, once an indicted defendant is taken into custody the police are duty bound to arraign him with all reasonable dispatch so that counsel may be appointed if necessary (People v Alex, 265 NY 192, 195; People v Mummiani, 258 NY 394, 399-400).

Indeed, any delay in arraigning an indicted defendant can have no rationale unless done for the purpose of buttressing what at that point is a prima facie case. For example, here, rather than arraigning defendant immediately, the police subjected him to uncounseled corporeal viewing. They were not merely trying to ascertain whether there was probable cause to believe a crime had been committed or even whether the defendant had committed the crime. They already knew that a crime had occurred and that defendant was to stand trial therefor. This is precisely the juncture at which legal advice is crucial and a well-recognized principle in civil litigation serves as an appropriate analogy. Once a matter is the subject of a legal controversy any discussions relating thereto should be conducted by counsel: at that point the parties are in no position to safeguard their rights (ABA Code of Professional Responsibility, DR 7-104, subd [A], par [1]; American Coll of Trial Lawyers, Code of Trial Conduct, Canon 16; People v Hobson, 39 NY2d, at pp 484-485, supra; Clifton v United States, 341 F2d 649, 652, n 9). The fact that defendant did not have an attorney appointed at the time the police sought their waiver is a distinction without a difference as far as the right to counsel is concerned. The right to counsel is not dependent upon the speed with which an attorney can be retained nor does it pivot on the length of police delay in arraigning an indigent defendant so that counsel may be appointed. To ground an indicted defendant’s right to counsel upon such fortuitous criteria is to debase that right into nothing more than a race for the wary. Except perhaps in the most exigent of circumstances not present here, the police are forbidden to seek an uncounseled waiver of an indicted defendant’s right to counsel (cf. Stovall v Denno, 388 US 293, 302).

Of course, a postindictment defendant may knowingly and intelligently waive his right to counsel at any stage of the judicial proceedings (see People v McIntyre, 36 NY2d 10; Johnson v Zerbst, 304 US 458). But no knowing and intelligent waiver of counsel may be said to have occurred without the essential presence of counsel. True, a defendant would be appreciably less inclined to waive counsel when sufficiently apprised of the effects of that waiver by an attorney (see People v Hobson, supra, at p 485). By the same token, the likelihood of a defendant incriminating himself is diminished when custodial interrogation takes place in the presence of an attorney. That is not the point. At the time when legal advice is most critically needed, our Constitution strikes the balance in favor of the defendant by placing a buffer, in the form of an attorney, between himself and the coercive power of the State. This court has long jealously guarded an indicted defendant’s right to counsel, and we refuse to predicate a waiver of so valued a right on the recitation of a formula printed on a card. Should the police desire to have any dealings with an indicted defendant, except of course in connection with such ministerial matters as pedigree declarations and his processing as an arrestee, they must do so in the presence of an attorney.

We reject the contention of the People that the purpose of the rule against an indicted defendant waiving his right to counsel in the absence of an attorney loses its force at a corporeal viewing. While we have noted that "the need for and right to a lawyer at an identification lineup is insignificant compared to the need in an ensuing interrogation” (People v Hobson, supra, at p 485), this in no way signifies that the assistance of counsel at a postindictment lineup may be ignored. The statement is simply a reflection of the degree of participation in which an attorney may necessarily engage during the two procedures, i.e., at a lineup, participation is relatively passive and confined to observation, whereas counsel actively advises the defendant during custodial interrogation. In any event, assistance of counsel after indictment at a lineup is an indispensable correlative to a fair trial (People v Blake, 35 NY2d 331, supra; United States v Wade, 388 US 218; Gilbert v California, 388 US 263; Stovall v Denno, 388 US 293, supra). Nice distinctions between the need for counsel at various stages of the proceedings are irrelevant once the right to counsel has indelibly attached.

Nor, contrary to the suggestion of the People, does People v Coleman (43 NY2d 222) command a different result. That case held simply that a court order of removal directing the defendant to appear at a preindictment, prearraignment lineup on an unrelated charge for which he had no attorney triggered his right to counsel, but that defendant could waive that right without a lawyer present. The distinction between Coleman and the present case lies not in the question of under what circumstances the right to counsel attaches, but rather at which point that right has indelibly attached to the extent that it can only be waived in the presence of a lawyer.

A defendant is entitled to the assistance of an attorney at any critical stage of the prosecution. Generally, the critical stage commences upon the filing of an accusatory instrument (see People v Blake, supra, at pp 339-340; CPL 1.20, subd 1), but certain other procedures, such as a court order of removal, are " 'sufficiently "judicial” in nature’ ” to permit invocation of that right (People v Coleman, supra, at p 225). In any of these situations, if an attorney has entered the proceedings, the right to counsel may be waived only in his presence and with his acquiescence (People v Hobson, supra, at p 481; People v Arthur, 22 NY2d 325, 329, supra; People v Donovan, 13 NY2d 148, 151, supra). Similarly, where the investigatory stage of a prosecution has concluded and formal judicial proceedings have commenced, whether by indictment or arraignment, the right to counsel may be waived only in the presence of counsel (People v Blake, supra, at p 340; People v Lopez, 28 NY2d, at pp 26-29, supra [dissenting opn], adopted in People v Hobson, supra). Coleman involved neither of these two situations and therefore a valid waiver was possible without the presence of a lawyer. In contrast, where, as here, all that stands between the entry of counsel into the proceedings and nonrepresentation is the ministerial act of arraignment, there may be no waiver of the right to counsel unless an attorney is present. Thus, where an indictment has been returned, we equate the indictment with the entry of a lawyer into the proceedings and invoke the requirement of counsel’s presence to effectuate a valid waiver.

Defendant raises a number of other issues. We deal with only one, however, since the question doubtlessly will arise upon retrial.

At trial, over objection, defense counsel sought to introduce a document prepared by the police department which synopsized a statement by codefendant Boalds. In that recitation, Boalds had admitted that he was indeed involved in the events of March 9, 1974 and had also implicated one Eduardo George as his lone accomplice in the crimes. Although the record lacks clarity, the statement was apparently suppressed before trial and was not introduced by the People on their direct case. When called by defendant, Boalds refused to testify, invoking his privilege against self incrimination. Thus, the statement was hearsay — an out-of-court statement offered to prove the truth of the matters asserted therein — and was not admissible into evidence unless embraced within an exception to the hearsay rule. The trial court refused to admit the report on the ground that it would cause irreparable prejudice to Boalds and denied defendant’s motion for severance.

The inherent dangers in hearsay evidence are obvious. As the person who made the statement is not called as a witness at trial, the adversary of the party offering the proof is afforded no opportunity to cross-examine the declarant or impeach his credibility (see 5 Wigmore, Evidence [Chadbourn rev], §§ 1361-1362; Richardson, Evidence [10th ed — Prince], § 201). However, oftentimes such evidence is necessary for proper resolution of a particular matter and of necessity a number of exceptions to the general rule have emerged. In certain circumstances, if the strict criteria relating to its admission are met, an out-of-court statement may indeed be admitted into evidence to prove the matter it asserts.

These exceptions to the hearsay rule are necessarily circumscribed. One of them, a declaration against the penal interest of the maker, might permit the introduction of Boalds’ statement into evidence at defendant’s new trial providing there is independent proof that it contains sufficient indicia of reliability and trustworthiness. The basis for this exception lies in the belief that a statement asserting matters directly endangering one’s penal interest by admitting facts that may lead to criminal liability is unlikely to be deliberately false (cf. People v Storrs, 207 NY 147; Lyon v Ricker, 141 NY 225).

Whatever force this rationale may have, prior to 1970 in this State only delcarations against the maker’s proprietary or pecuniary interests were admissible, however arbitrary or "barbarous” this differentiation may have been (5 Wigmore, Evidence [Chadbourn rev], § 1477). The distinction was blurred in People v Brown (26 NY2d 88, 94) which held that a declaration against the penal interest of the maker tending to exculpate the defendant may be admitted at trial (see, generally, People v Maerling, 46 NY2d 289; Fine, Declarations Against Penal Interest in New York: Carte Blanche? 21 Syracuse L Rev 1095; 39 Fordham L Rev 136).

To qualify for admission into evidence as a declaration against the maker’s penal interest the following elements must be present: first, the declarant must be unavailable as a witness at trial; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability (see People v Harding, 37 NY2d 130, 135 [concurring opn]; Richardson, Evidence [10th ed — Prince], § 257; Fisch, New York Evidence [2d ed], § 892).

Applying these factors to Boalds’ statement, we note that, should Boalds once again invoke his right against self incrimination when called as a witness at defendant’s new trial, the unavailability criterion will be satisfied (see People v Brown, supra, at p 91). So, too, there can be little doubt but that, as an admitted participant in the robbery and homicide of March 9, Boalds had firsthand knowledge of the facts underlying the statement. Nor is there any serious question but that Boalds was aware of the disserving nature of the statement when it was made as criminal liability would attach as a principal or as George’s accomplice (Penal Law, § 20.00).

Consequently, there remains for our consideration only a discussion of those factors which will indicate whether a specific declaration against penal interest possesses a sufficient probability of trustworthiness to warrant its admission. The rationale for allowing these statements, of course, stems from the assumption that a person would not ordinarily make a statement which jeopardizes his interest by subjecting himself or herself to criminal prosecution and incarceration. As with all generalizations, however, human motivation and personality renders the stated reason for permitting these declarations immediately suspect. Simply stated, people may prevaricate, despite the consequences to themselves, to exculpate those they love or fear, to inculpate those they hate or because they are inveterate or pathological liars. Moreover, the circumstances under which this statement was made must be taken into account. Since Boalds impugned his penal interest when already subject to criminal prosecution, there is a distinct possibility that he was motivated to inculpate George in the vain hope of receiving immunity from prosecution in return for his testimony or of being allowed to plead guilty to a lesser crime. He could have been seeking to protect his real accomplice out of some perverted sense of loyalty at the expense of someone he despised with an irrational passion. Or, he could have been telling the truth. The possibilities are limited only by the depth of human experience.

Hence, it is not difficult to envision the abuses which the unlimited reception of such testimony might generate. To circumvent fabrication and insure the reliability of these statements, there must be some evidence, independent of the declaration itself, which fairly tends to support the facts asserted therein. Holmes, who decried the then-existing rule barring the use of declarations against penal interest, added they should be admissible only when "coupled with circumstances pointing to [their] truth” (Donnelly v United States, 228 US 243, 277 [dissenting opn]; cf. Chambers v Mississippi, 410 US 284 ["corroborative” evidence augmented trustworthiness of declaration to such an extent that its exclusion constituted denial of due process]). In requiring some proof supportive of the declaration against penal interest to exculpate the accused, we note that the rule we announce is in accord with the vast majority of jurisdictions which recognize this exception to the hearsay rule. Only when there is other evidence tending to show that the declarant or someone he implicates as his accomplice actually committed a crime, may a declaration against penal interest be said to display the degree of reliability sufficient to overcome the dangers of admitting hearsay evidence. By imposing such a requirement a balance is struck between the interest of defendant to introduce evidence on his own behalf and the compelling interest of the State to preserve the integrity of the fact-finding process in this aspect of criminal prosecutions.

Naturally, there can be no precise demarcation or formulation of the proof which would constitute sufficient supportive evidence of a declaration against penal interest. By its very nature, the determination involves a delicate balance of diverse factors and is entrusted to the sound judgment of the trial court, which is aptly suited to weigh the circumstances surrounding the declaration and the evidence used to bolster its reliability. The crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself. Circumstances of seeming indifference may still harmonize the declarant’s statement so as to furnish the necessary link. By way of illustration, eyewitness testimony placing George at or near the scene of the crime, or proof of his possession of the fruits or instrumentalities used to commit the crime would suffice. Supportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true. Whether a court believes the statement to be true is irrelevant, and the question of admissibility is to be resolved without regard to the seeming strength or weakness of the People’s case. If the proponent of the statement is able to establish this possibility of trustworthiness, it is the function of the jury alone to determine whether the declaration is sufficient to create reasonable doubt of guilt.

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

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

Order reversed, etc.

       (Federal Rules of Evidence, rule 804, subd [b], par [3] ["A statement * * * offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”]; HR Rep No. 93-650, 93d Cong, 1st Sess, p 16; United States v Guillette, 547 F2d 743, 753-755; United States v Brandenfels, 522 F2d 1259, 1264, cert den 423 US 1033; Lowery v Maryland, 401 F Supp 604, 607, affd 532 F2d 750, cert den 429 US 919; People v Craven, 54 Ill 2d 419, 430-431; State v Larsen, 91 Idaho 42, 49; Brennan v State, 151 Md 265, 272; State v Higginbotham, 298 Minn 1, 5; State v Sejuelas, 94 NJ Super 576, 579; NM Stat Ann, § 20-4-804, subd [b], par [4]; Davis v State, 8 Okla Cr 515; State v Fletcher, 24 Ore 295; Cameron v State, 153 Tex Cr 29; Hines v Commonwealth, 136 Va 728, 747; Wis Stat Ann, § 908.045, subd [4]; cf. Deike v Great A & P Tea Co., 3 Ariz App 430, 433; Sutter v Easterly, 354 Mo 282, 295; but cf. People v Spriggs, 60 Cal 2d 868, 874-875 ["corroboration” not discussed but manifestly present under facts]; People v Brown, 26 NY2d 88, 90, supra [declarant’s statement "corroborated” by testimony of disinterested eyewitness]).


author: Wachtler, J. Jasen, J.

text:
    The People of the State of New York, Respondent, v Joshaway Jackson, Appellant.
    Argued October 19, 1978;
    decided December 21, 1978

      POINTS OF COUNSEL

      Richard A. Miller for appellant.
    Pursuant to CPL 410.50, reasonable cause did not exist to allow the probation officer’s search of movant-appellant’s automobile, which search was instigated by a police officer with full knowledge of defendant’s probationary status, therefore, the subsequent seizure was illegal and violated the constitutional rights of the movant. (Morrissey v Brewer, 408 US 471; People v Fortunato, 50 AD2d 38; People v Huntley, 53 AD2d 820; United States v Winsett, 518 F2d 51; United States ex rel. Coleman v Smith, 295 F Supp 1155; Coolidge v New Hampshire, 403 US 443; Byars v United States, 273 US 28; People v Santos, 82 Misc 2d 184; People v Way, 65 Misc 2d 865; United States ex rel. Sperling v Fitzpatrick, 426 F2d 1161.)

      Lawrence T. Kurlander, District Attorney (Sharon P. Stiller of counsel), for respondent.
    I. The probation officer’s search of probationer Jackson’s vehicle was rationally and reasonably related to the probation officer’s duties and did not violate Jackson’s Fourth Amendment rights. (People v Huntley, 43 NY2d 175; United States v Consuelo-Gonzalez, 521 F2d 259; People v Fortunato, 50 AD2d 38.) II. Assuming arguendo that the search of Jackson’s vehicle was unreasonable, the exclusionary rule does not apply to exclude illegally seized evidence at a probation revocation hearing. (United States v Vande

      mark, 522 F2d 1019; United States v Winsett, 518 F2d 51; United States ex rel. Sperling v Fitzpatrick, 426 F2d 1161; Mapp v Ohio, 367 US 643.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether a probation officer, who has received anonymous information that a defendant on probation has a gun and is dealing in drugs, may summarily search the defendant, his automobile and other possessions. The courts below held the search was valid and the defendant has appealed.

In 1973 the defendant, charged with possessing dangerous drugs and a weapon, pleaded guilty to the weapon charge. On May 5, 1974 he was sentenced to five years probation. A year and one half later Sergeant McBurney of the Webster Police Department received information from an unknown individual that an employee at the Webster branch of the Xerox Corporation possessed a weapon and was also "dealing drugs at the corporation.” The anonymous informant identified the employee as Josh Jackson and said that he drove a Cadillac bearing license plate number 829MDS. This information was received by Sergeant McBurney between 3:30 and 4:00 o’clock on the afternoon of November 25, 1975.

The following morning, November 26, Sergeant McBurney verified that the car was registered to the defendant. He also made a record check on the defendant and found that he was on probation. At approximately 10:30 a.m. he called the defendant’s probation officer, Edward Petrovick, and told him of the information he had received. During the conversation McBurney indicated that he did not know who the informant was. Petrovick then consulted his supervisor and they decided "to go out to the Webster plant and make a search.” At Petrovick’s request Sergeant McBurney agreed to accompany him and another probation officer while they made the search because, as Petrovick noted, the probation officers were not armed.

They arrived at the Xerox plant at approximately 2 o’clock that afternoon. A security officer pointed out the defendant’s car, but the officers found that it was locked. The defendant was summoned and searched after Petrovick advised him, in general terms, that he had reason to believe that the defendant was "in violation of his probation.” Nothing was discovered during this search. Petrovick then asked the defendant for his car keys which the defendant said were in his locker. Petrovick searched the locker and found the keys, but no evidence of criminal conduct or violation of probation. The probation officers then searched the defendant’s car and found a small hand gun.

A proceeding was commenced to revoke probation. The defendant was also indicted for possessing a dangerous weapon. Before trial on the indictment a hearing was held with respect to the revocation of probation (see CPL 410.70). At the outset the defendant claimed that the search was illegal. The trial court held, however, that a probationer does not have the same rights as other citizens under the Fourth Amendment and that it is unnecessary for "a probation officer to obtain a warrant based upon probable cause in order to search the residence or automobile of a probationer.” The court also found that the defendant had violated probation by possessing the weapon (see CPL 410.10, subd 2). Probation was revoked and the defendant was sentenced to an indeterminate term of imprisonment for a maximum of seven years. The Appellate Division affirmed, without opinion (55 AD2d 1054).

We recently held in People v Huntley (43 NY2d 175) that a person on parole, although legally in custody and subject to supervision, is nevertheless constitutionally entitled to protection against unreasonable searches and seizures. A person on probation, subject to similar restraints (see CPL 410.50, subds . 1, 2) should be similarly protected. Of course the defendant’s status as a parolee or probationer is relevant in determining the reasonableness of the search (People v Huntley, supra, p 181). Whether the search of a person in custody and subject to continuing supervision is reasonable cannot be assessed according to the standard applicable to persons whose activities are not subject to such scrutiny.

In addition, with respect to probation officers, it is important to note that since 1971 their authority to search a person on probation has been governed by statute. CPL 410.50 (subd 3) states: "If at any time during the period of probation the court has reasonable cause to believe that the defendant has violated a condition of the sentence, it may issue a search order. Such order must be directed to a probation officer and may authorize such officer to search the person of the defendant and/or any premises in which he resides or any real or personal property which he owns or which is in his possession.” The statute also permits a more limited search incident to an arrest. CPL 410.50 (subd 4) states: "When a probation officer has reasonable cause to believe that a person under his supervision pursuant to a sentence of probation has violated a condition of the sentence, such officer may, without a warrant, take the probationer into custody and search his person.” The statute further provides that a probation officer making an arrest or executing a search order "may be assisted by a police officer” (CPL 450.10, subd 5).

The substantive test, namely, "reasonable cause to believe that the defendant has violated a condition of the sentence”, apparently codifies case law which had generally held that the "test of what is reasonable as a prerequisite for a search of the person or property of a probationer or parolee is whether the search is consistent with the duty to supervise adherence to the conditions of probation or parole and the duty to influence the offender to refrain from unlawful conduct” (Preiser, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 410.50, p 149). This is essentially the same standard we have recently held should be used to determine the validity of a search of a person on parole by his parole officer (see People v Huntley, 43 NY2d 175, 181, supra).

In the Huntley case the parole officers had personal knowledge that the defendant had violated at least three conditions of his parole. He had failed to report on two occasions; he had quit his job without informing his parole officer and he had accepted welfare payments without obtaining permission. We noted that he had "demonstrated that he was thoroughly unreliable” and concluded that "the parole officer’s conduct in searching the apartment for a possible explanation of his otherwise unexplained failure to report was permissible”, particularly in view of the fact that he was not suffering from any apparent disability (People v Huntley, supra, p 182).

Here, however, there is no indication that the defendant had proved unreliable. There is no evidence that he failed to report and the record shows that he had been employed by Xerox for approximately nine years. There is only the anonymous accusation. The People note that the probation officer had a duty to investigate this complaint, which of course is true. But it does not follow from this that it was reasonable for the probation officer to begin the investigation by conducting a wholesale search of the defendant, his locker and his automobile. Indeed the probation officer himself was unable to explain at the hearing why he and his superiors chose to investigate the complaint in this extreme manner. There was no apparent need for haste. The probation officers spent several hours discussing the matter. During those discussions it must have been noted that the defendant had not previously demonstrated that he was an unreliable probation risk, that the source of the information could not be assessed and that there were other methods for determining whether there was any substance to the claim. As far as this record shows the determination to investigate the complaint by conducting a thorough search was completely arbitrary.

To uphold the search in this case would hardly be consistent with the recognition of a probationer’s constitutional right to be free of unreasonable searches and seizures. If that right means anything it must at least mean that a probationer who has not previously violated the conditions of his sentence should not be subjected to a complete search of his person and property whenever his probation officer receives an anonymous phone call.

In addition, even if there was reasonable cause to conduct the search, the probation officers should not have acted without a court order. The statutory provisions cited earlier (CPL 410.50, subds 3, 4) also establish a procedure for the search of probationers which, it has been noted "is somewhat different than the procedure apparently authorized by prior case law. The CPL does not provide for a search of a probationer or his property without a court order except as incident to taking the probationer into custody” (Preiser, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 410.50, p 149).

That procedure was completely ignored in this case. The defendant was not taken into custody and subjected to a limited search of "his person” (CPL 410.50, subd 4). The defendant’s probation officer and his supervisor did not decide to take him into custody but determined instead "to go out to the Webster plant and make a search.” And even if the defendant had been taken into custody, authority to conduct a protective search of his person could not have extended to his locker and automobile. As the drafters of the statute noted "The authority to search in this case is more circumscribed than the authority to search in the case where the court issues a [search order]” (see Commission Staff Comment to the Proposed CPL, § 210.30, subd 3, now CPL 410.50, subd 4). Thus a search of the defendant’s locker and car or any other "personal property which he owns” could only have been authorized by a search order (CPL 410.50, subd 3) and the probation officers had not obtained one.

This failure to obtain court approval was not justified by any exigency. Certainly the police officer who originally received the information felt no exigency since he waited until the following day to begiii his investigation. And, as indicated, the probation officers spent several hours debating the proper course and several hours more proceeding to the Xerox plant. In fact the record shows that when they received this information they were in their office, which is just one floor above the court where the defendant was sentenced. Under the circumstances there was more than enough time to submit the matter to the court as required by the statute.

Accordingly the order of the Appellate Division should be reversed and the motion to suppress granted, and the matter remitted to the County Court for further proceedings on the charge of violation of probation.

Jasen, J.

(dissenting). The majority holds that absent exigent circumstances a probation officer may not search the personal property of a probationer without a prior judicial determination that reasonable cause exists to believe that the probationer has violated the terms of his probation. With this conclusion I cannot agree and must, therefore, respectfully dissent.

There is no dispute that a probationer, like a parolee, does not upon the acquisition of probationary status relinquish all constitutionally guaranteed rights. (See Gagnon v Scarpelli, 411 US 778; Morrissey v Brewer, 408 US 471.) His right to be free from unreasonable searches and seizures (US Const, 4th Amdt; NY Const, art I, § 12) remains inviolate notwithstanding his probationary status. (Cf. People v Huntley, 43 NY2d 175.) However, as in the case of a parolee, the reasonableness of a search or seizure is not to be measured by standards applicable to individuals not on probation or parole. What may constitute an unreasonable search of a law-abiding citizen may nevertheless constitute a reasonable search of a probationer. (See People v Fortunato, 50 AD2d 38, People v Vales, 78 Misc 2d 443; People v Adams, 71 Misc 2d 658; People v L’Hommedieu, 62 Misc 2d 925; People v Chinnici, 51 Misc 2d 570; see, generally, White, Fourth Amendment Rights of Parolees and Probationers, 31 U Pitt L Rev 167; Note, Fourth Amendment Limitations on Probation and Parole Supervision, 1976 Duke LJ 71.) Equally significant to a determination of the reasonableness of a search imposed upon a probationer is the status of the individual conducting the search: that is, whether the search is conducted by a probation officer in performance of his duty in supervising a probationer or by a police officer in the course of routine investigation. (See United States v Consuelo-Gonzalez, 521 F2d 259, 266; cf. People v Huntley, 43 NY2d 175, 181, supra.)

Application of these principles in the present case dictates a finding that the search of appellant and his personal property was, under the circumstances, reasonable. Appellant had been placed on probation after pleading guilty to the crime of possession of a dangerous weapon in satisfaction of an indictment charging him with possession of drugs and a gun. The tip which Officer Petrovick, appellant’s probation officer, received from Sergeant McBurney indicated that appellant was once again in possession of drugs and a gun. Having received that information, Officer Petrovick, as appellant’s probation officer, had a duty both to appellant and to society to investigate the complaint. Had Officer Petrovick closed his eyes to this information, the possibility existed that appellant might have become involved in more serious trouble causing injury to a third party and perhaps foreclosing any chance of his rehabilitation.

Significantly, this is not a case in which the police, armed with less than probable cause, merely employed a probationer’s probation officer as a tool to effectuate a search in calculated circumvention of a probationer’s constitutional rights. The decision to investigate the complaint was made by the probation department, which contacted the police department to arrange for a police officer to accompany Officer Petrovick and a fellow probation officer during the investigation. As testified to by Officer Petrovick, the request for a police escort was motivated by safety considerations prompted by the legitimate belief that appellant was armed with a gun, an all the more alarming discovery when coupled with the realization that probation officers do not carry guns. Moreover, once on the scene the limited role played by Sergeant McBurney in the investigation militates against any finding of deliberate circumvention of constitutional rights by the police. An examination of the record reveals that only Probation Officers Petrovick and Shevlin participated in the search of appellant’s automobile. Nor can it be said that Officer Shevlin’s participation in the search and his ultimate discovery of the weapon invalidates the search. This court has stated on a previous occasion, with respect to a search of a parolee, that an otherwise valid search does not become impermissible merely because the parolee’s parole officer enlisted the aid of fellow parole officers in conducting the search. (People v Huntley, 43 NY2d 175, 182, supra.)

The majority, however, holds the validity of this search dependent upon literal compliance with a procedure adopted by the Legislature in 1971 for the supervision of probationers. (CPL 410.50.) While this procedure does provide for the issuance by a court of a "search order” based upon reasonable cause, I cannot subscribe to the view espoused by the majority that, absent exigent circumstances, a search order must be secured prior to the search of a probationer’s property or of his person if he is not taken into custody.

Nothing in the procedure adopted by the Legislature suggests that the availability of a search order was intended to pre-empt, rather than merely codify, existing case law (see Preiser, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 410.50, p 149), sustaining a warrantless search of a probationer on less than probable cause. (People v L’Hommedieu, 62 Misc 2d 925, supra; People v Chinnici, 51 Misc 2d 570, supra.) Had the Legislature intended to modify existing case law by requiring, except in exigent circumstances, that a probation officer secure a search order based upon reasonable cause before searching a probationer and his property, it could have so stated. Inasmuch as the Legislature has not done so, I would view the procedure adopted for the supervision of probationers as permissive, rather than mandatory.

It is not contended, nor could it be successfully contended, that there exists in this case any evidence of harassment on the part of Officer Petrovick, which might render an otherwise reasonable search unreasonable. (Cf. United States ex rel. Randazzo v Follette, 282 F Supp 10, 13, affd 418 F2d 1319, cert den 402 US 984.) On the contrary, the record indicates that Officer Petrovick’s conduct in searching appellant was reasonably related to his duty as a probation officer. Probation officers must be given wide latitude to investigate and conduct a search of a probationer if the rehabilitative goal of probation as a socially desirable alternative to incarceration is to be realized. As a practical matter, absent vigilant supervision, the average probationer might not receive sufficient impetus to deter his further involvement in criminal activity during probation. Such an unfortunate occurrence would be injurious not only to society and the individual probationer, but also to the continued viability of probation as a productive alternative to incarceration.

An interpretation of CPL 410.50 as mandating that probation officers obtain prior judicial approval before searching a probationer may tip the scale upon which sentencing courts weigh the benefits probation affords a convicted defendant as against the risks incurred by society, creating a greater hesitancy to sentence defendants to a period of probation, rather than incarceration. (Cf. People v Dowery, 20 Ill App 3d 738, affd 62 Ill 2d 200.) Until the Legislature expressly indicates its intention to require a judicial determination of reasonable cause before a probation officer may search a probationer’s personal property or his person if he is not taken into custody, I would not disturb this balance.

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

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

Order reversed, etc.