author: Gabrielli, J. Cooke, J. (dissenting).

text:
    The People of the State of New York, Respondent, v Robert Stanard, Appellant.
    Argued April 28, 1977;
    decided June 9, 1977

      Julia P. Heit for appellant.

      Mario Merola, District Attorney (Billie Manning and Aley Alexander of counsel), for respondent.
   Gabrielli, J.

The defendant stands convicted of the crime of perjury in the first degree (Penal Law, § 210.15) following his retrial on an indictment which arose from testimony which he gave to a Grand Jury of Bronx County investigating police corruption in the Seventh Division. The conviction upon his first trial was reversed because prejudicial and excessive background testimony on police corruption generally was improperly received in evidence (32 NY2d 143).

The Appellate Division has unanimously affirmed this second conviction (52 AD2d 1098) and defendant advances several claims of error, but we are not persuaded that any of these claims warrant reversal, and we therefore affirm.

In June, 1968, the Grand Jury began an investigation of police corruption involving payments to police officials made by persons engaged in illegal policy and gambling activities, for the purpose of obtaining protection from arrest and prosecution. The investigation stemmed in part from information furnished by Patrolman Frank Serpico. The defendant, a New York City police officer at the time, was called as a witness and gave sworn testimony, under a grant of immunity, on two occasions in November, 1968. Among other matters, the defendant was queried about his attendance at a meeting with Patrolmen Andrew Taylor, James Paretti, William McAuliffe, and a known "policy” operator, Juan Carreras, at the Carr-eras residence, 1961 Lacombe Ave., Bronx, New York, on January 8, 1968. The People charge, inter alia, that the meeting was arranged by these officers for the purpose of assuring the continued collection of protection payments from Carreras. Defendant denied ever attending such a meeting and this denial was the basis for the first count of the indictment upon which he was convicted.

The first count of the indictment charged defendant with falsely denying that he attended the meeting at the home of Carreras for the purpose of collecting protection money, and he asserts that a crucial element of the charge is the illegal purpose of the meeting. The thrust of his argument is twofold. First, he contends that there is insufficient proof of the charge in the indictment to sustain his conviction and, secondly, he urges that the illegal purpose element is necessary to show that the false swearing was material to the Grand Jury proceeding. Since materiality is a necessary element of first degree perjury (Penal Law, § 210.15) he thus maintains that the absence of an illegal purpose, as claimed by him, renders the false swearing harmless. We reject these arguments.

The indictment charged the defendant with denying under oath that he entered the Carreras home to collect protection money "or for any purpose whatsoever”. Contrary to appellant’s assertion, the indictment also charges defendant with denying being on the specified premises for any purpose. During the Grand Jury investigation the following colloquy occurred:

"Q. * * * Were you ever present in any location but more specifically in a location at 1761 LaCombe Avenue, County of the Bronx, in a basement at that address present at that address aside from yourself in that basement were Ptl. McAuliffe, Paretti, Taylor and Juan Carreras?
"A. I was never present with Mr. Carreras and the patrolmen that you named.
"Q. Therefore you deny being present at that location with those people?
"A. No; I don’t.
"Q. At that location with those people?
"A. I deny ever being with those people, but it’s possible that I was at the location.
"Q. Well, if you were never with those people how could you have been at that location with those people? The question is twofold.
"A. Well, it’s a twofold answer. I would say I was never at that location with those people.”

This and other Grand Jury testimony clearly demonstrates that defendant repeatedly denied being at the Carreras home with his fellow patrolmen, whether or not the purpose of the meeting was specified in the question. Juan Carreras testified that appellant attended the meeting and that protection payments were discussed along with certain operational problems of the "policy” business. Dolores Carreras corroborated the appellant’s identity, his presence at her home, the date, the place of the meeting, and the presence of the other three officers. Thus, there was sufficient evidence to find defendant guilty.

Section 210.50 of the Penal Law requires that proof of falsity in a perjury prosecution "may not be established by the uncorroborated testimony of a single witness.” The falsity of the statement made by appellant that he did not attend the meeting with his fellow officers was, as indicated, proven by the direct testimony of two witnesses and is thus sufficiently corroborated. Corroboration need not necessarily consist of direct evidence, however, but may be based on circumstantial evidence which furnishes partial proof of the falsity (People v Sabella, 35 NY2d 158, 168). Thus assuming arguendo that corroborative proof of the illegal nature of the meeting is necessary in this case, as defendant unsuccessfully insists, we believe it has nonetheless been established by adequate circumstantial evidence. Dolores Carreras testified that she had personally made protection payments to Officers McAuliffe and Paretti. These payments were usually made on the first day of each month but the Carrerases were unable to make the regular payment in January, 1968. On January 8 Officer McAuliffe telephoned the Carreras residence and Dolores told him that she and her husband had lost all their money in the policy business and would be unable to make any payment or continue their operations. The meeting at the Carreras home, attended by McAuliffe, Paretti and appellant, followed shortly after the officer’s telephone call on that same day. These facts, coupled with her identity testimony, permit the compelling inference and serve as sufficient proof that the purpose of the meeting was to discuss illegal payments. This independent evidence offered by Dolores Carreras fairly "tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [witness] is telling the truth” (People v Sabella, supra, p 169, quoting People v Dixon, 231 NY 111, 116) and is, therefore, sufficient circumstantial evidence to satisfy the corroboration requirement as to the illegal nature of the meeting (People v Sabella, supra; People v Doody, 172 NY 165, 172), and the conviction will not be overturned.

Perjury in the first degree also requires a false swearing which is "material to the action, proceeding or matter in which it is made” (Penal Law, §210.15). The appellant, as noted, may not prevail on his claim that there was an absence of proof of an illegal purpose for the meeting, and that his false denial of ever attending the meeting is thus immaterial to a Grand Jury investigation of police corruption. Materiality is an essential element of the crime of perjury in the first degree (see People v Teal, 196 NY 372, 376; People ex rel. Hegeman v Corrigan, 195 NY 1, 9; People v Courtney, 94 NY 490, 494; Wood v People, 59 NY 117, 121-122; cf. People v Ianniello, 36 NY2d 137, 143); false swearing, to be material, must reflect on the matter under consideration during the action or proceeding in which it is made. As stated in Wood v People (supra, p 123): "It is not necessary that the false statements should tend directly to prove the issue in order to sustain an indictment. If the matter falsely sworn to is circumstantially material or tends to support and give credit to the witness in respect to the main fact, it is perjury.” Under the facts in this case the appellant falsely denied, during a Grand Jury investigation into police corruption, that he met surreptitiously with three other police officers and a known gambler in the basement of the home of the gambler. Although evidence of the meeting would not by itself prove police corruption, the occurrence of the meeting, along with the other evidence in the case tends to support the existence of the corrupt nature and purpose of the meeting. Under these circumstances the false swearing must be deemed material, whether or not the illegal purpose is included as part of the charge.

Patrolman Serpico had testified extensively during the first trial and it was his testimony of unrelated, illegal acts which resulted in prejudice requiring reversal (32 NY2d 143, 145-146). Before the start of the second trial a hearing was held to determine whether the People had made a diligent, good faith effort to locate Patrolman Serpico, in order that any relevant portions of his testimony at the first trial might be admitted into evidence on the ground that he was now unavailable. From the totality of all the evidence the hearing court concluded that diligent efforts had been made by the District Attorney and the police, who were unable to locate Serpico and thus relevant parts of his prior testimony might be introduced into evidence. However, the District Attorney stated that the People had no intention of bringing up the name of Frank Serpico but sought to reserve the right to use his testimony only for cross-examination in the event that the defendant took the stand. Thus, the testimony was admissible as limited by the agreement of the District Attorney. As it developed, however, Serpico’s name was never mentioned during the course of the trial and none of the testimony was admitted or, indeed, relevant. Defense counsel had sought permission to voir dire the jurors concerning the impact of the potential use of Serpico’s testimony. The court denied the request stating that any mention of Serpico "will be excluded entirely from this trial”. The Judge added that each juror would be questioned whether he knows the defendant or has heard about the former trial and if any mention of Serpico occurs during this voir dire, the juror would be excused for cause.

Appellant also claimed that he had a constitutional right to query members of the venire on potential prejudice against appellant which might arise from the mention of Serpico’s name in conjunction with the People’s case. In claiming this right the appellant relies on Ham v South Carolina (409 US 524) in which the Supreme Court held that the due process clause of the Fourteenth Amendment required the Judge to interrogate the jurors upon the subject of racial prejudice. That inquiry rose to constitutional dimension since racial prejudice was directly involved. However, the court reaffirmed the traditionally broad discretion accorded a Trial Judge in conducting the voir dire (Ham v South Carolina, supra, p 528; Aldridge v United States, 283 US 308, 310) and rejected a similar request to inquire as to particular bias against beards on the ground that it did not reach the level of constitutional dimension.

In this case the request to examine prospective jurors on Serpico was unquestionably within the discretion of the Trial Judge (CPL 270.15; People v Boulware, 29 NY2d 135). The proposed voir dire could well have encumbered the jury selection process for the sake of a matter which was clearly collateral in view of the District Attorney’s stipulation not to use Serpico’s testimony in the direct case. The Judge was scrupulously attempting to exclude all mention of Serpico in order to protect the defendant’s fair trial rights, and he assured counsel that any juror who spoke the name would be excused for cause. Under these circumstances we cannot say there has been an abuse of discretion (People v Boulware, supra, p 141). Appellant’s claim that his right to take the stand in his own behalf was impeded by the restriction on the examination of prospective jurors is totally unsupported and unavailing.

During the trial the People relied heavily on the testimony of two witnesses, Juan and Dolores Carreras. These witnesses were under the protection of Federal Marshals and, following the first trial, they had been relocated by the Federal Government for their safety, having been given new identities, addresses and occupations. Appellant sought to cross-examine these witnesses in all respects including their present names, addresses and occupations. The District Attorney asked that these newly created background matters not be raised in order to assure the safety of the witnesses. The trial court, after conducting a hearing outside the presence of the jury, found that the Carrerases had been provided new identities, addresses and occupations for the purpose of safeguarding their lives "from people who have an interest in taking [them]”, and granted the request to limit cross-examination. The court held, however, that the witnesses could be interrogated as to whether they were given new identities, why the change was made and whether the Federal Government financed their relocation. No restrictions were placed, of course, on cross-examination concerning matters prior to their relocation. In spite of this restriction, Juan and Dolores Carr-eras, after giving direct testimony at the second trial, were each subjected to thorough and extensive cross-examination involving their prior criminal activities and certain false swearing as well. No restriction, of course, was placed on the use of their testimony at the prior trial for purposes of cross-examination. Only their present identities, occupation and location were not permitted to be explored.

Appellant insists, and erroneously we think, that his right to cross-examination as embraced in the Sixth Amendment right to confrontation was violated, relying on Alford v United States (282 US 687) and Smith v Illinois (390 US 129). In Alford the defense was prevented from obtaining the address of an important prosecution witness. The court noted that a principle purpose of cross-examination is to identify the witness with his community so that independent evidence of his reputation for veracity may be obtained (282 US, at p 691), and stated that "Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise [the facts]” (292 US, at p 692). But the court admonished that the right is not absolute and ruled that there is a duty to protect a witness "from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him” (282 US, at p 694).

In Smith, a conviction was reversed because the defense was denied the right to cross-examine a crucial prosecution witness, testifying under a false name and address, as to his true identity. In a concurring opinion Mr. Justice White stated (pp 133-134): "In Alford v. United States, 282 U. S. 687, 694 (1931), the Court recognized that questions which tend merely to harass, annoy, or humiliate a witness may go beyond the bounds of proper cross-examination. I would place in the same category those inquiries which tend to endanger the personal safety of the witness. But in these situations, if the question asked is one that is normally permissible, the State or the witness should at the very least come forward with some showing of why the witness must be excused from answering the question. The trial judge can then ascertain the interest of the defendant in the answer and exercise an informed discretion in making his ruling”. In both Alford and Smith there was no showing of any interest of the State or the witness that would justify restriction of cross-examination. The case before us presents a far different situation.

Although there is a right to cross-examine, it is not unlimited (Smith v Illinois, supra; Alford v United States, supra; United States v Varelli, 407 F2d 735, 750, 452 F2d 193, cert den 405 US 1040). Where the defense seeks to question a prosecution witness about his identity, address and occupation, such questions must be permitted absent a showing that a cognizably valid interest of the State or the witness is involved. Where the question on cross-examination is one that is normally permissible under the rules of evidence, the objecting party must come forward with some showing of why the witness should be excused from answering the question. Excuse may arise from a showing that the question will harass, annoy, humiliate or endanger the witness. The burden then shifts to the questioning party to demonstrate the materiality of the requested information to the issue of guilt or innocence (see United States v Varelli, supra; United States v Rich, 262 F2d 415; United States v Baker, 419 F2d 83, 87, cert den 397 US 971). The court must then, in the exercise of discretion, weigh the various interests involved and determine whether the testimony is sufficiently material to the question of guilt or innocence to overcome the interest of the opposing party. In determining materiality the court is required to keep in mind that the underlying purpose of identity testimony is to establish a background setting in which to test veracity (United States v Smaldone, 484 F2d 311, 381 cert den 415 US 915; United States v Alston, 460 F2d 48, 51, cert den 409 US 871). Although not exhaustive, the following factors may be considered by the court in determining whether the defendant has met his burden of showing materiality: (1) the extent to which the right to cross-examine is infringed, (2) the relevance of the testimony to the question of guilt or innocence, (3) the nature of the crime charged and the quantum of proof established aside from the testimony of the witness, (4) the nature and significance of the interest or the right asserted by the witness, and (5) the nature of and extent to which the proposed cross-examination would produce evidence favorable to that party and, of course, whether such evidence would be merely cumulative. In reaching a final determination, after a hearing to gather the relevant facts, the court must engage in a balancing process which compares the rights of the defendant to cross-examination, considering the extent to which this right is infringed, with the interest of the witness in retaining some degree of anonymity.

In the present case the restriction on cross-examination was imposed out of fear for the personal safety of the witnesses. This was a sufficient interest to shift the burden of proving necessity and materiality to the defendant (see United States v Rangel, 534 F2d 147,148, cert den 429 US 854; United States v Persico, 425 F2d 1375, 1384, cert den 400 US 869), and the defendant failed to sustain his burden of proving necessity and materiality. The right to cross-examination was only partially restricted in that the identity, address and occupation of the witnesses prior to relocation was fully available. The criminal past of the witnesses was carefully probed by defense counsel and the District Attorney provided defense with the arrest record of the witnesses up to the month before trial. Indeed, the District Attorney made known to the court and defense counsel that he had requested the United States Marshal (Henry Johnson) to investigate whether the Carrerases had been arrested under their new names. Given the extensive and damaging material already available to attack the credibility of the witnesses, the limitation in this case was negligible and justified. Although the prosecution relied heavily on the testimony of the Carrerases, their interest in personal safety was significant and the extent of infringement slight. In addition there was no showing of the relevance of the testimony to the issue of guilt or innocence. Under these circumstances, the interest of the witness in assuring his personal safety outweighs the defendant’s interest in cross-examination on these narrow matters and, consequently, we cannot say that the trial court abused its discretion in restricting cross-examination.

During the course of the trial defendant sought his personnel file from the police department. Although his demands were initially thwarted, the court eventually ordered release of the file. After perusing the file defendant’s counsel claimed that the prosecution had suppressed evidence by removing all relevant information prior to release. There can be no doubt that the People have a duty to disclose exculpatory information under their control (Giglio v United States, 405 US 150, 153-154; Brady v Maryland, 373 US 83, 87; People v Simmons, 36 NY2d 126, 131) whether the nondisclosure is intentional or negligent (People v Simmons, supra). No facts were presented, however, to advise or inform the court what was missing from the file and how it might be exculpatory or to support in any way the charge of suppressing evidence. Under these circumstances the defendant has shown insufficient facts to raise any issue whether the prosecutor or the police suppressed portions of the file.

The appellant’s other allegations of error have been duly considered by the court and found to be without merit.

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

Cooke, J. (dissenting).

I dissent, albeit reluctantly, and vote to reverse on the ground that the defendant was deprived of his Sixth Amendment right to confront two of the witnesses who testified against him.

At the outset, it must be recognized that the test proposed by the majority to determine when cross-examination of a prosecution witness as to identity, address or occupation may be abridged is not well suited to its subject. Such test has at its foundation, and as one of its parts, a factor that will, in every case of this sort, tip the scales in the prosecution’s favor. The factor to which I refer is the requirement that the testimony sought be material or relevant to the question of guilt or innocence. This it will never directly be.

As the majority explains, the formulation suggested here is to assist the trial court in determining whether questions as to identity, address and occupation will be permitted once there is a showing that a cognizably valid interest of the State or the witness is involved. The United States Supreme Court in Alford v United States (282 US 687, 691-692) explained that the permissible purposes of such questions on cross-examination are, among others, "that the witness may be identified with his community so that independent testimony may be sought and offered of his reputation for veracity in his own neighborhood * * * that the jury may interpret his testimony in the light reflected upon it by knowledge of his environment * * * and that facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased” (citations omitted).

As stated in Alford (p 692) and recognized by the majority here: "It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. Tla-Koo-Yel-Lee v. United States [167 US 274], supra; King v. United States [112 F 988], supra; People v. Moore, 96 App. Div. 56, affirmed without opinion, 181 N.Y. 524; cf. People v. Becker, 210 N. Y. 274. To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. Nailor v. Williams, 8 Wall. 107, 109; see People v. Stevenson, 103 Cal. App. 82; cf. Brasfield v. United States, 272 U.S. 448.”

In the usual case, the prosecution’s witnesses will be called to testify as to matters bearing directly upon the guilt or innocence of the defendant. On cross-examination, questions directed to that testimony, unless objected to and sustained on other grounds, will be permitted. A different aspect of cross-examination, not directly relevant to guilt or innocence is embarked upon when questions are asked as to identity, address and occupation for, as noted, these go to the witness’ credibility and reputation for veracity.

. Accepting the suggested shift in burden when the question of a witness’ safety is involved, the factors to be weighed, as enumerated, but exclusive of the relevance of the testimony to the question of guilt or innocence, are all pertinent. Considering those factors, it just cannot be said in the instant case that the interest of the witnesses in assuring their personal safety outweighed the defendant’s interest in cross-examination.

The crime of which defendant here stood accused was perjury. Upon a trial for such charge, the credibility of the prosecution witnesses is crucial. The quantum of proof, aside from the testimony of the Carrerases, going to the question of guilt was, as recognized by the majority, slight. It cannot be said that the right to cross-examine these witnesses as to their life prior to relocation was sufficient. Nor would updated arrest records in their former names be meaningful as was recognized by the District Attorney who requested the United States Marshal’s investigation of possible arrests under the witnesses’ new names. No indication of whether that investigation was carried out is to be found in the record.

While a balancing of factors is called for, the focus of the test cannot be the same here as it is in the instance where the court must decide whether an informer be produced or his or her identity be disclosed. Direct relevance to guilt or innocence there is a fundamental and crucial consideration (People v Gogins, 34 NY2d 163, 170). Here it need not be.

While other courts have successfully weighed and considered the relevant factors and, in appropriate cases, limited cross-examination in such matters (see, e.g., United States v Baker, 419 F2d 83, 87, cert den 397 US 971; United States v Bennett, 409 F2d 888, 901), I can agree with neither the test applied nor the result reached in the instant case.

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

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

Order affirmed.

      . The indictment charged that: "The defendant did then and there testify before said Grand Jury under oath * * * that he, the said defendant, did not enter and remain at 1761 Lacombe Ave, Bronx, New York, the home of Juan Carreras and Dolores Carreras, with Patrolman Andrew Taylor, Patrolman James Paretti, and Patrolman William P. McAuliffe, on or about January 8, 1968, or at any other time for the purpose of collecting money due defendant and his fellow patrolmen for protecting Juan Carreras’ Mutuel Race Horse Policy Business, or for any purpose whatsoever”.

      . Serpico’s efforts at exposing police corruption were the subject of a book and movie. He became a well-known "superhero” and thus mention of his name and exploits in a trial such as this might possibly result in prejudice to the defendant.


source: Caselaw Access Project

author: Cooke, J.

license: Public Domain

text:
    John Boyle, Individually and as Administrator of the Estate of Donald J. Boyle, Deceased, Respondent, v Eugene R. Kelley, as Police Commissioner of Suffolk County, Appellant.
    Argued April 29, 1977;
    decided June 14, 1977

      Howard E. Pachman, County Attorney (Anton J. Barovina and Henry G. Wenzel, III, of counsel), for appellant.

      Benedict P. Vuturo for respondent.
   Cooke, J.

In December, 1973, and pursuant to a warrant, the amount of $14,960.35 in U. S. currency was seized from the apartment of Donald J. Boyle who was thereafter arrested, along with his brother, both being charged with the crimes of promoting gambling in the second degree and possession of gambling records. A motion to vacate the search, suppress the evidence and return the property was granted in favor of Donald J. Boyle to the extent that the search was invalidated as to him and the evidence suppressed. The portion of the motion directed to the return of the property was denied "since it is not established whether such property constitutes the fruits of a crime (GPL § 710.70 [1]) and the defendant should seek this relief by way of replevin.”

Sometime thereafter the People moved to dismiss the charges against Donald J. Boyle stating that since the evidence had been suppressed they would not be able to present a prima facie case. Additionally, it was noted that prior to the hearing on the motion Donald J. Boyle had passed away. On June 18, 1974, the motion was granted, the indictment dismissed.

On August 30, 1974, a demand was made upon the Suffolk County Police Commissioner, by way of motion, for the return of the $14,960.35. Said motion was opposed and, on October 23, 1974, was withdrawn pending the appointment of an administrator of the estate of Donald J. Boyle. An administrator was appointed on July 30, 1975 but no subsequent demand was made, no notice of claim was ever filed, and no extension of time was ever sought. Instead, in late September, 1975, a summons and complaint were served upon the Police Commissioner. The complaint recited the aforedescribed facts. Additionally, plaintiff asserted therein that "the detention of the said monies by the defendant is wrongful in view of the dismissal of the charges against * * * Donald J. Boyle, and on the basis that more than 30 days have passed regarding any possible appeal by the People” and demanded that "said monies be returned to the plaintiff herein, as Administrator of the Estate * * * in the amount of $14,960.35 plus interest from the 18th day of June, 1974, which date reflects the dismissal of the charges against the deceased”.

One of the items appended to the complaint was a copy of a receipt which read as follows: "Received from Donald J. Boyle numerous slips of paper with wagers thereon and $14,960.35 in U.S. currency.” This receipt had been numbered, dated and signed by the detective who had taken possession of the money and betting slips.

Both parties moved for summary judgment. Special Term, satisfied that plaintiff had established his cause of action for wrongful detention, granted his motion noting that defendant’s answer was a "mere general denial” and defendant’s affidavit failed to "controvert in any material way the allegations of the complaint.” Citing CPL 710.70 (subd 1) the court concluded that "since it had now been established that the property taken does not constitute the fruits of a crime [it] should be returned”. Defendant’s cross motion for judgment dismissing the complaint pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action was deemed meritless and was denied. In Special Term’s view the title or right to possession of the money had been adequately asserted.

The Appellate Division in affirming, did so on different grounds. Recognizing that an action could be dismissed under CPLR 3211 (subd [a], par 7) for failure to comply with or allege compliance with the requisite notice of claim provisions of the General Municipal Law and the County Law (see 23 Carmody-Wait 2d, NY Prac, §§ 144:111, 144:117), that court attempted to distinguish this case from the other similar cases wherein failure to file notice of claim was held to be fatal (see, e.g., Kamienska v County of Westchester, 39 Misc 2d 750).

Although the Appellate Division relied upon the equitable nature of the claim, such reliance was misplaced for two reasons. First, equity will not entertain jurisdiction where there is an adequate remedy at law (Empire Eng. Corp. v Mack, 217 NY 85; Schank v Schuchman, 212 NY 352; Hunt v Hunt, 171 NY 396; cf. Raftery v World Film Corp., 180 App Div 475) and, in this type of situation, replevin has traditionally been the adequate and appropriate legal remedy (see, e.g., Simpson v St. John, 93 NY 363; Duboff v Haslan, 195 App Div 117; Dwyer v County of Nassau, 66 Misc 2d 1039; People v Spencer, 64 Misc 2d 1013). Moreover, an article 78 proceeding to review a refusal after demand is likewise available (see, e.g., Matter of Caggiano v Frank, 78 Misc 2d 187, affd 44 AD2d 828).

Second, even were this to be viewed as an action in equity, the specific language of subdivision 2 of section 52 of the County Law would still require notice of claim. Subdivision 1 of that statute provides, in language sufficiently broad to cover the instant situation, as follows: "Any claim or notice of claim against a county for damage, injury or death, or for invasion of personal or property rights, of every name and nature, and whether casual or continuing trespass or nuisance and any other claim for damages arising at law or in equity, alleged to have been caused or sustained in whole or in part by or because of any misfeasance, omission of duty, negligence or wrongful act on the part of the county, its officers, agents, servants or employees, must be made and served in compliance with section fifty-e of the general municipal law.” The failure then to make such a claim requires a reversal.

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiff’s motion for summary judgment denied and defendant’s motion to dismiss the complaint granted.

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

Order reversed, etc.


text:
    Charles G. Rose, Respondent, v Gustav Eichhorst et al., Appellants.
    Argued May 3, 1977;
    decided June 14, 1977

      Leslie A. Bradshaw for appellants.

      L. Edward Monaghan for respondent.
   Cooke, J.

We hold that a conflict of interest occurs when a town board member acquires premises, located in the town in which he serves, at a county tax sale.

Respondents, Gustav and Carmen Eichhorst, were owners in fee of a house and slightly more than six acres of land in the Town of Victor, County of Ontario. On July 12, 1972, the parcel was sold for $1,307.63 by the County of Ontario for unpaid taxes levied against it for the years 1970 and 1971. The tax sale certificates were purchased from the county treasurer by petitioner’s son who assigned them to petitioner Charles G. Rose on March 22, 1973. Three years after the sale, on July 15, 1975, the county treasurer executed a tax deed covering the premises to petitioner. In August, 1975, petitioner commenced summary proceedings to dispossess respondents pursuant to subdivision 4 of section 713 of the Real Property Actions and Proceedings Law.

The Appellate Division, affirming a judgment of County Court which awarded petitioner possession of the subject premises, held that there was no prohibited conflict of interest under section 801 of the General Municipal Law because the structure of the Town Law and the Real Property Tax Law is such that petitioner was at all times dealing with the County of Ontario, rather than the Town of Victor, in acquiring said premises. We reverse.

Although a conflict of interest was prohibited at common law (see People ex rel. Ryan v Green, 58 NY 295), the concept has been codified for sometime in statutes. The most recent enactment brings together provisions formerly in various laws into one statute, viz.: "Except as provided in section eight hundred two of this chapter, (1) no municipal officer or employee shall have an interest in any contract with the municipality of which he is an officer or employee, when such officer or employee, individually or as a member of a board, has the power or duty to (a) negotiate, prepare, authorize or approve the contract or authorize or approve payment thereunder (b) audit bills or claims under the contract, or (c) appoint an officer or employee who has any of the powers or duties set forth above” (General Municipal Law, § 801, subd 1). The exceptions in section 802 are not applicable here, but several definitions in section 800 merit attention:

" 'Contract’ means any claim, account or demand against or agreement with a municipality, express or implied” (subd 2).
" 'Interest’ means a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves” (subd 3).
" 'Municipal officer or employee’ means an officer or employee of a municipality, whether paid or unpaid, including members of any administrative board, commission or other agency thereof and in the case of a county, shall be deemed to also include any officer or employee paid from county funds” (subd 5).

It is conceded that a county officer may not acquire property from the county which he serves at or after a county tax sale (see 15 Opns St Comp, 1959, p 397). Similarly, it is recognized that a prohibited conflict of interest occurs when a village officer purchases property located in the village in which he serves at a village tax sale (see 25 Opns St Comp, 1969, p 152). For the same reasons, a town board may not sell a town supervisor real property where its value exceeds $100 (see 29 Opns St Comp, 1973, p 132; see, also, General Municipal Law, § 802, subd 2, par f). The assertion is made, however, that here there was no contract with the municipality of which petitioner was an officer, and hence no conflict of interest. In other words, it is argued that since the county is acting on its own behalf, a town officer may purchase at a county tax sale. Although on the surface this argument appears dispositive, there is much more to the matter.

Counties and towns were originally political or governmental divisions of the State created for the purpose of carrying out State functions (Gaynor v Marohn, 268 NY 417, 422). A distinction has long been made between villages and cities, which are corporations organized by action of local inhabitants and limited by statute or charter, and towns and counties, which have been characterized as involuntary subdivisions of the State (Curtis v Eide, 19 AD2d 507, 508). Of course, there are similarities among all of these municipal corporations (see, generally, 39 NY Jur, Municipal Corporations, §§ 1-4). The significant aspect of this distinction is, however, that it shows the similar nature of counties and towns as municipal bodies and, as will be discussed, it lays the foundation for their interrelationship in the governmental function.

This relationship is manifested in the taxing mechanism established by the Legislature. A town, being a creature of statute, may not act in excess of the powers conferred upon it by the Legislature (People v Scott, 26 NY2d 286, 289; Town Law, § 2). In the State-wide system, it is the town that has the duty to collect and receive all State, county and local taxes that may be levied on real property within its borders (see Town Law, §§ 36, 37). The collection of taxes, however, is only part of the interconnection between towns and counties in this respect. A brief description of the taxing network is necessary.

The process begins with the adoption of an annual budget by the town (see Town Law, § 109). This is presented to the board of supervisors of the county (see General Construction Law, § 13-b) which causes the amounts specified in the budget to be levied, assessed and raised by tax and assessment upon the real property of the town liable therefor, in accordance with the law for the levy of State and county taxes (Town Law, § 115). The county then levies the taxes for the county, entering the amount to be paid on each parcel on the assessment roll of each town (see Real Property Tax Law, § 900, subd 1). Annexed to the town’s assessment roll is a warrant from the county board of supervisors authorizing and directing the collecting officer of the town to collect the amounts listed on the roll (Real Property Tax Law, § 904, subd 1). Ultimately, the collecting officer of the town is required to make payment to the town supervisor of an amount equal to the sum levied for town purposes plus other amounts as required by law, and to pay the remainder to the county treasurer (§ 904, subd 2).

If the owner of the property refuses to pay the tax, the town collecting officer, after January 31 and after demand, may levy upon and cause to be sold at public auction any personal property in the county belonging to said owner (Real Property Tax Law, § 926, subd 2). If the tax is not satisfied in this manner, the collecting officer is required to make an account to the county treasurer of all taxes listed on the tax roll which remain due and unpaid, except for certain specified installments (§ 936, subd 1). Should the amount of taxes collected by the town tax collector be less than the sum levied for town purposes, the county must pay the town the difference (see Opns St Comp, 1976, No. 96).

At this point, the responsibility for collecting the delinquent tax shifts to the county (see Matter of Wadhams, 249 App Div 271; 19 Opns St Comp, 1963, p 385). The county, rather than the town, holds a lien for the unpaid town taxes (see Opns St Comp, 1953, No. 6445). The county, but not the town, is authorized to collect the delinquent taxes (see Real Property Tax Law, arts 10, 11; see, generally, 58 NY Jur, Taxation, §§ 261-319).

It is asserted that the county treasurer in conducting a tax sale is seeking to collect sums owed to the county. While this is descriptive of the end result, it neglects to appreciate the process leading up to the sale. As noted, it is the town which initially seeks to collect the taxes, and it is the town collecting officer who may seek to satisfy the tax by levying on the personal property of the taxpayer. Of course, the discretion given to the town collecting officer, whether elected or appointed, is not vested in the town board. Nevertheless, the town board, referred to as the most important part of town government (Fraser, Town Law for Town Officials [2d ed], § 4-1, p 401), is not a legal stranger to the collecting officer. To illustrate: the town board fixes the salary of the collecting officer, whether elected or appointed, and determines when same shall be payable (Town Law, § 27, subd 1); it designates the banks in which the collecting officer shall deposit all money coming into his or her hands by virtue of the office (see Town Law, § 64, subd 1); it may establish within applicable limitations a petty cash fund for the collecting officer (subd 1-a); and it fills vacancies in town offices (subd 5). The collecting officer is required to execute and file an undertaking in such form, in such sum and with such sureties as the town board shall direct and approve (see Town Law, §25). It is not disputed that petitioner was a member of the town board having such authority (see Town Law, § 60, subd 2). The statement in Town of Amherst v County of Erie (260 NY 361), that town tax collectors are not town officers but independent public officers and that they act directly for the county under a warrant issued by the county (p 370), indicates the joint efforts of the town and county in tax collection. In any event, such a public officer so considered and so acting for a county is under the statutory controls of the town board as outlined.

If a town had no connection with the collection of its taxes, the assertion sought to be made might be acceptable. But a court should not make such fine distinctions, least of all where matters involve questions of what is proper conduct for a municipal officer. To consider solely the procedure by which delinquent taxes are collected is to focus in on only one aspect of a larger and more complex picture. Of course, the county is not the town and the town is not the county, but our legal inquiry must not end there. In the greater scheme of things, the two municipalities have an overlap, if not identity, of interest.

The Legislature assigned different functions to the two municipalities. The towns, being more numerous, were assigned the initial duty to collect the taxes for themselves and the county. The county, receiving taxes from all the towns, was assigned the responsibility for the collection of delinquent taxes. Perhaps it was felt that the towns could not shoulder the burden of collection of delinquent taxes. Possibly there was concern that the towns would delay in enforcement, since only part of the amount collected is for the town. Whether the county is treated as an agent of the town or simply one of two participants in the same collection process, their close affiliation cannot be ignored.

This identity of interest, manifested in the legislative framework, can lead to but one conclusion—that there is a conflict of interest when a town board member acquires property in his town at a county tax sale. The contract of sale, though in form concerning only the county, by implication also involves the town, and as such is within the statutory contemplation (see General Municipal Law, § 800, subd [2]). The petitioner’s action, through his membership on the town board, in preparing the town budget and thus initiating the collection of the taxes, must be considered as part of the approval and authorization culminating in the county tax sale (see § 801, subd [1]). From the other vantage point, as noted, there is the town board’s relationship with the town tax collecting officer (see, e.g., Town Law, §§ 25, 27, subd 1; § 64, subds 1, 1-a, 5). Petitioner’s official interest in these matters, when contrasted with his personal acquisition of respondents’ property, can only be described as conflicting. For these reasons, the sale is voidable (General Municipal Law, § 804).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Breitel and Judges Gabrielli, Jones and Fuchsberg concur with Judge Cooke; Judges Jasen and Wachtler dissent and vote to affirm on the memorandum at the Appellate Division (52 AD2d 747).

Order reversed, etc.

      . The record does not reveal whether the Town of Victor is a first or second class town or the title of its collection officer. A footnote in appellant’s brief refers to Victor as a second class town. The 1970 population for the Town of Victor in the 1975 Legislative Manual is listed as 5,071 (p 1278). (See Town Law, §§ 10, 12.)
      The office of collector exists in a town of the second class and is an elective position (Town Law, § 20, subd 1, par [b]). The town board of a second class town may abolish the office of collector by resolution and, if so accomplished, the powers and duties of a collector are taken over and performed by the town clerk of such town (Town Law, § 36, subd 1). A receiver of taxes and assessments is found in a town of the first class and is elective, except that the town board of such a town may adopt a resolution, subject to a permissive referendum, that such office shall be appointive in such town (Town Law, § 20, subd 1, par [a]; subd 6, par [e]).

      . Neither is the town board unassociated with tax assessments, an element in arriving at the amount of taxes, since, among other things, the board may authorize the preparation or adoption of a tax map of all real property in its town for use by its assessors (Real Property Tax Law, § 568) and it may employ experts to appraise real property therein for assistance of the assessors and to give expert testimony in any action or proceeding in connection with assessments of real property (Real Property Tax Law, § 572).


author: Cooke, J. Chief Judge Breitel. (concurring).

text:
    The People of the State of New York, Respondent, v William Norwood Case, Appellant.
    Argued April 28, 1977;
    decided June 16, 1977

      Steven C Haas for appellant.

      William H. Power, Jr., District Attorney (Peter R. Terriah of counsel), for respondent.
   Cooke, J.

A CB radio message from one motor vehicle operator to another as to the highway location of a radar speed checkpoint does not constitute the crime of obstructing governmental administration. To say that there is a Smokey takin’ pictures up the road does not subject the speaker to a year’s imprisonment.

This is an appeal from an order of the County Court of St. Lawrence County which affirmed a judgment of the Town Justice Court of the Town of Oswegatchie convicting defendant upon his plea of guilty of the lesser offense of disorderly conduct (Penal Law, § 240.20) to satisfy the misdemeanor accusation of obstructing governmental administration (Penal Law, § 195.05) as charged in an information.

A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (People v Harper, 37 NY2d 96, 99). Every information must contain an accusatory part and a factual part (CPL 100.15, subd 1) and the factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges (CPL 100.15, subd 3). In order for an information to be sufficient on its face, every element of the offense charged and. the defendant’s commission thereof must be supported by nonhearsay allegations of such information and/or any supporting depositions (CPL 100.40, subd 1, par [c]; 100.15, subd 3). An objection to the substantive sufficiency of the information, such as one that it does not state a crime, as distinguished from an objection to the form of the instrument, is not waived by a plea of guilty (People v Scott, 3 NY2d 148, 152; People v Koffroth, 2 NY2d 807, 808). Thus, if every element of the crime of obstructing governmental administration is not properly recited in the factual part of the information and the accompanying deposition, review "of that issue is not barred by the plea.

The information here was insufficient as a matter of law (see People v Koffroth, 2 NY2d 807, 808, supra). The facts recited therein and in the supporting deposition did not state a crime (see People v Scott, 3 NY2d 148,152, supra).

In an information sworn to by a State Police officer, defendant was charged with the commission of the crime of obstructing governmental administration, contrary to section 195.05 of the Penal Law, on December 19, 1975 in the Town of Oswegatchie, St. Lawrence County. The accusation was grounded on the following recited facts (intermixed with conclusions): "Defendant did, while operating a motor vehicle eastbound on State Route 37, in the vicinity of the Drive-In theatre, did converse with another vehicle by means of a Citizen Band radio, and did forewarn said other vehicle of the location of a radar speed checkpoint, which was located at said Drive-In Theatre, and then did contact a tractor trailer unit, which was westbound on same highway, near the Acco Plant of the same information, by the same means. This action by defendant did substantially give ample warning to these two particular vehicles, and to any other vehicles equipped with CB radios, of the use of radar its location, so that they would reduce speed, and avoid arrest.” The deposition by a second State trooper adds nothing factually of legal significance.

A person is guilty of obstructing governmental administration, under section 195.05 of the Penal Law "when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act”. (Emphasis added.) A fair reading of this section can yield but one conclusion. The operative obstruction may be accomplished "by means of intimidation, physical force or interference, or by means of any independently unlawful act.” If it be "interference”, then it must be physical interference, as "physical” modifies "interference” in the statute. The word "interference” is not cast in isolation, it is part of the phrase "physical force or interference”, a phrase separated from the rest of the sentence by comma punctuation. The disjunctive "or” in said phrase joins "force” and "interference” and is distinct from the "or” following the word "interference”, which latter disjunctive is placed before the last in the series of the obstructive means. It simply makes no sense to read "interference” in solitary, apart from its modifier "physical”, for by so doing the reader must of necessity disregard the punctuated structure of the statute. Although a court must not be overly technical in interpreting penal provisions, penal responsibility cannot be extended beyond the fair scope of the statutory mandate (People v Gottlieb, 36 NY2d 629, 632). If there is to be a diametric change in the statute, it should come from the Legislature.

Lest there be any doubt about it, the Practice Commentaries by Arnold D. Hechtman (McKinney’s Cons Laws of NY, Book 39, Penal Law, § 195.05, pp 395-396), furnish the answer:

"The former Penal Law contained a number of provisions which punished specific conduct, the effect of which was to obstruct or hamper governmental functions (§§ 196, 490, 1320, 1322, 1824, 1825, 1851). There was, however, no comprehensive provision directed at such conduct generally. Section 195.05, designed to fill this gap, is applicable to a person who intentionally impedes or defeats a governmental function by means of physical force or interference or by means of some independently unlawful act. The requirement that the conduct which constitutes an obstruction of governmental function be one of violence or physical interference or be independently unlawful is necessary in order to prevent the section from being an overly broad catchall. (See, e.g., District of Columbia v. Little, App. D. C. 1950, 70 S. Ct. 468, 339 U.S. 1, 94 L. Ed. 599; People v. Maddaus, 1958, 4 N.Y. 2d 1003, 177 N.Y.S. 2d 517.) The offense is designated a class A misdemeanor.

"Within the scope of § 195.05 are such cases as: (1) an assault on a public servant who is engaged in the performance of his official duties, provided that the defendant’s intent is to prevent such public servant from performing an official function; (2) tampering with a motor vehicle of a housing inspector, provided that the defendant’s intent is to prevent such inspector from carrying out his official duties; and (3) engaging in disorderly conduct in the chamber of a legislative body with intent to obstruct the legislative session”. (Emphasis added.)

Significantly, the statute has been uniformly interpreted to the effect that mere words alone do not constitute "physical force or interference” such as to support the charge of obstructing governmental administration (see, e.g., People v Clough, 43 AD2d 451, 454; People v Ketter, 76 Misc 2d 698, 700-701; People v Longo, 71 Misc 2d 385, 390; People v Arvio, 66 Misc 2d 474, 478; Bishop v Golden, 302 F Supp 502, 506; cf. People v Fife, 39 AD2d 780, 781; People v Shea, 68 Misc 2d 271, 272; People v Losinger, 63 Misc 2d 577, 577-578). In Bishop v Golden (supra, p 506), the United States District Court (Judd, J.), in considering section 195.05 of the Penal Law, held: "The statute against obstructing governmental administration requires as an element of the crime that the accused act by one of three methods: (1) 'intimidation,’ (2) 'physical force or interference,’ or (3) 'any independently unlawful act.’ Plaintiffs claim to find vagueness in the word 'intimidation,’ citing a turn-of-the century case, and omitting the court’s statement there that 'every person knows * * * whether his acts are intimidating.’ Union Pacific R. Co. v. Ruef, 120 F. 102 at 121 (D. Neb. 1902). All of those words and phrases are reasonably clear. Plaintiffs also attack the word 'interference’ as vague—but only by separating it from the word 'physical.’ It is only physical interference which is encompassed in the second method of obstruction. Attacks on 'impairs’ or 'perverts’ as overbroad are irrelevant, so long as the proscribed methods of obstruction are clear” (emphasis added).

Under the express provisions of the statute, the interference would have to be, in part at least, physical in nature. The line is so drawn. To interpret and apply section 195.05, as suggested by the prosecution, would mean that there would be no outer limits to the statute. Under such a notion, the imparting of information as to location of the radar speed checkpoint would be penally condemned without physical interference and irrespective of whether the recipients of the messages were violating or were about to violate the law. A casual meeting of two travelers at a rest stop along a thoroughfare followed by a casual remark by one that a radar setup had been seen, with nothing more, would be enough to mark the author of the remark as a criminal.

The order of the County Court of St. Lawrence County should be reversed, the judgment of conviction of the Town Justice Court of the Town of Oswegatchie should be vacated and set aside and the information against defendant should be dismissed.

Chief Judge Breitel. (concurring).

I concur in result. The statute, if it have a defect, should be amended. Any scheme to frustrate a system of law enforcement to save lives and limbs on the highways of the State is of sufficiently grievous harm to innocents that its perpetration should be an offense. Moreover, limiting interference to physical acts leaves outside the scope of obstructing governmental administration the many nonphysical forms of effective interference, thus, the "tip-off” to believed-to-be would-be muggers that the seemingly old and ailing man in civilian clothes is in reality an undercover police officer.

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

Order reversed, judgment vacated and the information dismissed.

       Arnold D. Hechtman was an assistant counsel to the Temporary State Commission on Revision of the Penal Law and Criminal Code (1964 McKinney’s Session Laws of NY, pp 2010-2011).


author: Jones, J.

text:
    State of New York, Appellant-Respondent, v Princess Prestige Co., Inc., et al., Respondents-Appellants.
    Argued May 4, 1977;
    decided June 14, 1977

      Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen, Samuel A. Hirshowitz and James A. Neuberger of counsel), for appellant-respondent.

      Noel W Hauser for respondents-appellants.
   Jones, J.

The disposition of the cross appeals in this case turns on the right of the Attorney-General, under subdivision 12 of section 63 of the Executive Law, to injunctive relief to prevent future violations of the Home Solicitation Sales Act (Personal Property Law, art 10-A) and to retrospective relief with regard to past violations.

The Attorney-General instituted the present proceedings with allegations that the corporate respondent (whose management and policies were controlled by the individual respondent) was engaged in the business of selling housewares and electronic equipment through personal solicitation at the homes of prospective buyers on a deferred-payment basis within the ambit of the Home Solicitation Sales Act. The core charge was that respondents had committed repeated illegal acts in that they had not afforded their customers the cooling-off period and the right of cancellation required by the statute (Personal Property Law, § 428). There followed respondents’ answer and the reply of the Attorney-General. Based on the pleadings and the affidavits and exhibits attached thereto, Special Term granted prospective relief by way of an injunction against future violations and retrospective relief with regard to sales between September 1, 1970 and the date of the order by directing respondents to afford the buyers in such sales an opportunity to cancel their purchases. The Appellate Division affirmed the grant of prospective injunctive relief but held that there was no authority under subdivision 12 of section 63 to support the grant of retrospective relief.

As to respondents’ appeal, we are satisfied that there should be an affirmance. The record established that respondents by their conduct failed to comply with the statutory requirements as to home solicitation sales. This conclusion is not vitiated by the fact that the proceeding was initiated on the basis of 16 complaints out of what respondents tell us were some 3,600 transactions. Nor is it a defense that there were some cancellations and a few refunds in each of 1973, 1974 and 1975. No admissible proof is tendered that cancellation cards were regularly given to each purchaser as mandated by the statute. While the authority of the Attorney-General is restricted to seeking injunctive relief against repeated illegal or fraudulent acts, he is not required to establish a large percentage of violations. (Cf. Matter of Lefkowitz v E. F. G. Baby Prods. Co., 40 AD2d 364; Matter of People v Compact Assoc., 22 AD2d 129, affd 17 NY2d 758.)

Nor is there any substance to respondents’ contention that the Home Solicitation Sales Act was "in a state of suspension” and thus afforded no predicate for the present proceeding. Their argument is grounded on section 426 (subd 2, par [b]) of the Personal Property Law which provided that the term "home solicitation sale” does not include a transaction "in which the buyer has a right of cancellation pursuant to federal law”. The Federal Trade Commission Act, to which the argument appears to refer, while vesting enforcement authority in the commission, does not purport to create or authorize any private right of cancellation (cf. Holloway v Bristol-Meyers Corp., 485 F2d 986; Alfred Dunhill, Ltd. v Interstate Cigar Co., 499 F2d 232, 237). Additionally the Federal rule on which respondents would rely states explicitly that it is not intended to pre-empt State regulation (Federal Trade Commission, Trade Regulation Rules, Part 429—Cooling-Off Period for Door-to-Door Sales [promulgated Oct. 18, 1972, eff June 7, 1974], 16 CFR 429.1, n 2; cf. Federal Trade Commission Advisory Opinion, May 20, 1976, 44 USLW 2550).

Finally there is no merit to respondents’ other claims. No defense is available under subdivision (b) of section 349 of the General Business Law, inasmuch as this is not a proceeding under article 22-A of that law. The Statute of Limitations set forth in CPLR 215 is no obstacle to the present proceeding (State of New York v Cortelle Corp., 38 NY2d 83). In the state of this record respondents were not entitled to an evidentiary hearing and the provision by Special Term for referee’s hearings to determine the rights of individual consumers to cancellation and refund, contrary to respondents’ assertions, were not to provide the basis for the relief granted the Attorney-General.

On the appeal by the Attorney-General the order of the Appellate Division should be modified. In our view the authority to "direct restitution” should be read in the present context to embrace as well authority to order respondents to take affirmative action necessarily preliminary to establishment of the consumers’ rights to restitution—to give notice of that right and thus in practical effect to implement restitution. It would obviously have been inappropriate to order across-the-board restitution inasmuch as many or even most of respondents’ customers may prefer not to cancel their purchases. Special Term required that respondents advise their customers that they had a right to cancel at their election. The conclusion of the Appellate Division, however, that this provision of the order of Special Term was beyond the purview of subdivision 12 of section 63 was erroneous.

An application by the Attorney-General for remedial orders under subdivision 12 of section 63 is addressed to the sound judicial discretion of the court. On the record before us we cannot say either that it was an abuse of discretion as a matter of law for Special Term to have granted the relief which it did, or that, as a matter of law, the Attorney-General was entitled in the circumstances of this case to the order that he sought. A definitive disposition in our court could only be predicated on one or the other of such alternatives. The case should therefore go back to the Appellate Division for its review of the grant of retrospective relief as an exercise of discretion by Special Term.

Accordingly, in sum, the order of the Appellate Division should be modified, with costs to the State, to the extent of remitting the case to the Appellate Division to review the directions contained in the order of Special Term with respect to transactions since September 1, 1970 and prior to the date of that order, and as so modified, affirmed.

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

Order modified, with costs to the State, and the matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.


author: Wachtler, J. Cooke, J. (dissenting).

text:
    Robert E. Howard et al., Appellants, v B. Douglas Lecher, Respondent.
    Argued April 27, 1977;
    decided June 16, 1977

      Alfred S. Julien and David Jaroslawicz for appellants.

      Arthur N Seiff and Anthony L. Schiavetti for respondent.
   Wachtler, J.

The issue presented is whether the parents can recover from the defendant doctor for the mental distress and emotional disturbances they suffered as a result of their infant daughter having been born with and eventually succumbing to Tay-Sachs disease, a progressive degenerative genetic disorder affecting the nervous system. In their complaint the parents allege that the doctor was negligent in that he failed to take a proper genealogical history or to properly evaluate it. They claim that he was aware that they both were Eastern European Jews and he, therefore, should have known of the high risk that the fetus would suffer from the disease. They contend further that had he made them aware of the risk involved and informed them of the availability of tests to determine the existence of the disease, they would have undergone the tests, and, had they been advised the fetus was afflicted with Tay-Sachs, they would have aborted the pregnancy.

The defendant moved to dismiss the plaintiffs’ claim for failure to state a cause of action (CPLR 3211, subd [a], par 7). Special Term denied the motion. A divided Appellate Division reversed. v

The case is a difficult one to decide. On the one hand the parents claim they have suffered more from watching their child die from natural causes than they would have had they been offered the opportunity to voluntarily terminate the pregnancy through abortion. On the other hand they concede that the doctor was not responsible for the child’s affliction with Tay-Sachs or the inevitable death. The question before us is whether the doctor should be held liable for the trauma suffered by the parents allegedly caused by the birth, degeneration and death of the child. Since we are of the opinion that to afford the parents relief as against the doctor would require the extension of traditional tort concepts beyond manageable bounds, we are in agreement with the determination below that the complaint fails to state a cause of action.

In order to provide a party who has been injured through the negligence of another with some measure of redress for the wrong inflicted upon him, a rule of law has evolved allowing that party to recover money damages as compensation for the injuries sustained (cf. Steitz v Gifford, 280 NY 15, 20). This, of course, is based on the legal fiction that money damages can compensate for a victim’s injury. Although this device is as close as the law can come in its effort to right the wrong, it is still, nevertheless, a fiction for money will not replace or repair the lost or broken limb or remove the disability caused (see Sanders v Rolnick, 188 Misc 627, affd 272 App Div 803).

By the same token, however, the law has long recognized that it need not provide relief for every injury suffered. Where a party’s negligence is directly responsible for physical injury to another, there is no question but that the injured party may recover both for the actual physical injury sustained and for the concomitant mental and emotional suffering which flow as a natural consequence of the wrongful act (see Steitz v Gifford, 208 NY 15, supra). Indeed, an individual can recover for the psychic injuries suffered as a result of another’s negligence where there has been no physical impact if the party seeking recovery was subjected to the fear of physical injury as a direct result of the tortious conduct (Battalla v State of New York, 10 NY2d 237). Further, we have held that there may be recovery for the emotional harm, even in the absence of fear of potential physical injury, to one subjected directly to the negligence of another as long as the psychic injury was genuine, substantial, and proximately caused by the defendant’s conduct (Johnson v State of New York, 37 NY2d 378, 383-384).

On the other hand, the law has repeatedly denied recovery for mental and emotional injuries suffered by a third party as a result of physical injuries sustained by another (Tobin v Grossman, 24 NY2d 609, and cases cited therein; Shaner v Greece Cent. School Dist. No. 1, 51 AD2d 662; Bessette v St. Peter’s Hosp., 51 AD2d 286; Roher v State of New York, 279 App Div 1116). No cause of action exists, irrespective of the relationship between the parties or whether one was a witness to the event giving rise to the direct injury of another, for the unintentional infliction of harm to a person solely by reason of that person’s mental and emotional reaction to a direct injury suffered by another. Thus, in Tobin v Grossman (supra), we denied recovery to a mother traumatized by the injuries suffered by her child as the result of the negligent operation of an automobile by another. Our court there recognized, as we now do, that the plaintiff parent suffered as genuinely as if she herself were the object of the injury which resulted from the impact suffered by the child. However, we also recognized then, as now, that the law must establish, circumscribe and limit the rules ascribing liability in a manner which accords with reason and practicality.

In the case now before us, we assume, as we must in connection with this motion to dismiss (Cohn v Lionel Corp., 21 NY2d 559, 562), that the doctor was negligent in failing to take the proper measures to determine whether the fetus suffered from Tay-Sachs and that as a result of that negligence the parents permitted the pregnancy to run its course and the child to be born instead of seeking an abortion. Whether or not a cause of action would lie on behalf of the injured child has not yet been addressed by our court (cf. Johnson v Yeshiva Univ., 42 NY2d 818), nor is it the question now before us.

We are here concerned with a suit brought by the parents for their mental and emotional pain and suffering resulting from witnessing their child suffer from this horrid disease. It cannot be denied that they themselves were made to bear no physical or mental injury, other than the anguish of observing their child suffer, as a result of the defendant’s presumed negligence, nor did that negligence directly cause the child to fall victim to the disease. Analogous, indeed stronger since the injuries would directly result from the tortious conduct of the doctor, would be a case in which the doctor, in delivering the infant from the mother’s womb, committed an act of negligence causing frightful injuries to the child, but in no manner physically injuring the parent. Were that parent to suffer psychic injury as a result of the doctor’s misfeasance, it is clear that there could be no recovery (Tobin v Grossman, supra). Nor can the parents recover in the present case.

Sound policy reasons and unlimited hypothesis present themselves. To now extend the perimeter of liability would inevitably lead to the drawing of artificial and arbitrary boundaries. Indeed, the dissenting opinion illustrates the arbitrary nature of such a holding, for it would allow the mother of the deformed child to recover while the father is entitled to no relief. Yet, both parents contend that the injury to them stemmed from the trauma occasioned by viewing the degeneration of their daughter. Can it be said that the mother’s injury was more direct or of a greater magnitude? The law of liability should not turn on hypertechnical and fortuitous considerations of this type.

There can be no doubt that the plaintiffs have suffered and the temptation is great to offer them some form of relief. Ideally, there should be a remedy for every wrong. This is not the function of the law, however, for "[e]very injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree” (Tobin v Grossman, 24 NY2d 609, 619, supra).

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

Cooke, J. (dissenting).

I am in substantial agreement with the analysis made in the scholarly and comprehensive dissent of Justice Margett at the Appellate Division which meets the issues presented by the majority opinion of that court. I disagree only with his view that it is the child who has been injured and that the husband may maintain a nonderivative cause of action identical to that of the wife. It is, however, to the more limited majority opinion of this court that the following remarks are directed.

Certain facts of life of the 1970’s must be recognized and accepted at the outset. One such fact is the legal right of a mother to abort a pregnancy (Roe v Wade, 410 US 113; Penal Law, § 125.05). Another is the development and application of tests to identify carriers of Tay-Sachs disease and the occurrence of that disease in their yet unborn offspring.

Tay-Sachs, as noted by the majority, is a fatal progressive degenerative disease of the nervous system which primarily affects the Eastern European Jewish population and their progeny. Only in the circumstance where both parents are carriers will there be a great likelihood of the presence of the disease in the offspring. In 1969, a relatively simple test to reveal carriers was developed, requiring only a blood sample. Parents-to-be, if individually tested and found both to be carriers, could then agree to a second test. Such second test involved the drawing and testing of amniotic fluid from the sac in which the unborn child rests within the mother. With the information that their child would be born suffering from this fatal disease, parents could make an informed, although difficult, decision as to whether to continue or to terminate the pregnancy.

Believing that she might be pregnant, Mrs. Howard sought and received the continuing medical counsel of B. Douglas Lecher, M. D., a physician specializing in the field of obstetrics and gynecology. The physician-patient relationship there existing, like all others, was based upon the theory that the physician is learned, skilled and experienced in subjects of vital importance to the patient but about which the patient knows little or nothing. Great reliance, faith and confidence then are necessarily placed in the professional word, advice and acts of the physician (see 61 Am Jur 2d, Physicians and Surgeons, § 95 et seq.).

From such relationship a duty arises and flows from physician to patient. Put simply, that duty is to care for and advise the patient in accordance with proper medical practice. A physician, such as Dr. Lecher, has a duty to employ that degree of skill and knowledge which physicians similarly situated ordinarily possess, regard being had to the state of scientific knowledge at the time (see Physicians and Surgeons: Standard of Skill and Care Required of Specialist, Ann., 21 ALR3d 953). A breach of this duty would result in liability, the extent of which has been held to include recovery for all damages proximately caused by such breach whether such damages could or could not have been foreseen (Steitz v Gifford, 280 NY 15).

In her complaint, Mrs. Howard alleged existence of the doctor-patient relationship and detailed the duty that flowed therefrom. She alleged a duty: to take a proper medical history; to know that she and her husband were of Eastern European background and potential carriers of Tay-Sachs disease; to know that there were tests available to determine whether she and her husband were carriers and to determine whether the fetus was a victim of such disease. Further, Mrs. Howard alleged a breach, asserting that defendant was careless and negligent in his treatment; that he failed to take a proper history or consider the history he had taken; that he failed to keep abreast of the times; that he failed to properly test; and that he failed to give proper advice and recommendations.

Had there been no breach of the duty and had the doctor advised Mrs. Howard that the fetus suffered from Tay-Sachs disease, it is alleged that the pregnancy would have been terminated through legal abortion procedures. Instead, on August 21, 1972, the defendant delivered of Mrs. Howard a female child, Melissa Howard, who suffered, and within two years died, from Tay-Sachs.

The complaint, as described, was structured so as to enumerate two causes of action. The second seeking "special damages”, sums expended by plaintiffs for medical care and funeral expenses for the infant, was originally unchallenged but has since, by stipulation, been discontinued. The first, seeking compensation for severe mental distress and emotional disturbance, was the target of a motion to dismiss.

The issue in this case is not, as the majority states (p 110), "whether the parents can recover * * * for the mental distress and emotional disturbances they suffered as a result of their infant daughter having been born with and eventually succumbing to Tay-Sachs disease”. Put simply, the question is whether a patient may recover for her physician’s negligence.

Since, today, there is no question that an injured party may recover both for the actual physical injury sustained and for the concomitant mental and emotional suffering which flow as a natural consequence of the wrongful act (Ferrara v Galluchio, 5 NY2d 16; Steitz v Gifford, 280 NY 15, supra) and, indeed, recover for psychic injuries even in the absence of physical impact (Battalla v State of New York, 10 NY2d 237), plaintiff, Laura Howard, should be permitted to pursue recovery on her cause of action.

While the majority recognizes the rule that (p 111) "there may be recovery for the emotional harm, even in the absence of fear of potential physical injury, to one subjected directly to the negligence of another as long as the psychic injury was genuine, substantial, and proximately caused by defendant’s conduct (Johnson v State of New York, 37 NY2d 378, 383-384)” it fails to recognize how perfectly this case may fit within that rule.

As did the Appellate Division majority before it, the majority here seeks to place Mrs. Howard in the shoes of a bystander and deny her recovery for want of a direct injury. But unlike Tobin v Grossman (24 NY2d 609) upon which the court relies, it was the mother here to whom the defendant’s duty was owed.

Rather than liken this case to Tobin v Grossman, which case has no relevance to the facts alleged here, comparison can more aptly be made with Johnson v State of New York (37 NY2d 378, supra). In Johnson, the daughter of a hospital patient was permitted recovery for emotional harm sustained by her as a result of negligent misinformation given by the hospital that her mother had died. The negligently sent false message was the breach of a duty owed and the events flowing from its receipt were the proximate cause of claimant’s emotional harm. There, as here, the injury was inflicted directly upon the individual claiming the harm and the same individual to whom the duty was owed was the one directly injured by its breach. Logic, as well as justice, compelled the conclusion in Johnson, as it does here, that all proven harmful consequences proximately caused by the tortious act should be compensable.

On this, the correct analysis, no legitimate fear of extension to remote family members can be expressed, for only the patient herself is owed the physician’s duty and has suffered directly by its breach (cf. Tobin v Grossman, 24 NY2d 609, 615, supra). While Mr. Howard may suffer from emotional disturbance and mental distress similar to that of his wife, such suffering is not actionable for, not being a patient of Dr. Lecher, Mr. Howard stands outside the sphere of duty circumscribed in a malpractice action such as this. Like any spouse, however, he may be entitled to maintain derivatively a cause of action for loss of consortium.

The analogy propounded by the majority lends no support to its analysis. To infer that a mother is a bystander at the birth of her infant manifests a basic misunderstanding of the duty owed a patient by a physician. In such a circumstance as hypothesized, there are two within the zone of danger, and the doctor owes a duty to each. That the infant may have suffered physical injury, while the mother solely psychic, is not to say that each, individually, could not seek redress against the physician for the particular type of damage he caused.

The day has not come when public policy has foreclosed the maintenance of malpractice actions. To be sure, as noted by two recent commentators "The Courts would be indulging in a dangerous precedent if they provide a blanket immunization for physicians in the case of their failure to advise parents of the prospects of giving birth to a deformed child. The burden on the medical profession in taking a genealogical history, administering simple effective tests to determine if there are defects in the fetus, and then informing the parents of such possible defects so that they can make an informed decision whether to conceive or continue with a pregnancy is not any more unreasonable than the burden placed upon physicians to use reasonable care in delivering a child or informing patients of the risks of surgical procedures.” (Birnbaum & Rheingold, Annual Survey—Torts, 28 Syracuse L Rev 525, 564.)

Accordingly, the order of the Appellate Division should be modified by reinstating the cause of action of plaintiff Laura V. Howard and, as so modified, affirmed.

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

Order affirmed, with costs.


text:
    The People of the State of New York, Respondent, v John H. Gower, Appellant. The People of the State of New York, Respondent, v Donald A. Randall, Appellant. The People of the State of New York, Respondent, v Michael Keihart, Appellant. The People of the State of New York, Respondent, v Thomas F. Sammon, Appellant. The People of the State of New York, Respondent, v Herman J. Tusar, Jr., Appellant.
    Argued June 2, 1977;
    decided June 30, 1977

      Remy R. Perot and Terrence R. Dugan for appellants.

      Patrick D. Monserrate, District Attorney (Frederick J. Meagher, Jr. of counsel), for respondent.
   Jones, J.

The issue tendered by the defendants and the People in these cases is the admissibility of certain certificates offered by the prosecution to show, by way of foundation for the introduction of the results of breathalyzer tests, that the particular breathalyzer equipment utilized was in proper working order and that the ampoules used contained properly compounded chemicals.

There were certificates, addressed "To whom it may concern”, signed by the director of the State Police scientific laboratory in Albany, certifying as to the results of analyses of ampoules made on specified dates;, certificates addressed to the Director, Division of Criminal Justice Section of the Bureau for Municipal Police at Albany, signed by the Director of Analytical Laboratories of the Stiefel Research Institute, certifying as to the results of analyses of simulator solutions, and a report addressed to the Broome County Sheriff’s Department signed by a toxicologist at Wilson Memorial Hospital of analysis of ampoules. These certificates did not come within the scope of CPLR 4518; their source was not represented or shown to have been records made in the regular course of business of the public agency and the private corporations from which they came. Nor did the documents otherwise fall within any recognized exception to the hearsay rule. Accordingly, their receipt into evidence was error, and no assertion is now made that the results of the breathalyzer tests were admissible without them.

It would seem that the requirements of CPLR 4518 could very easily be met and thus its benefits be realized by the prosecution. If the testing agency or corporation were to establish a standardized testing procedure which included a requirement that there be a contemporaneous record made (with appropriate entries as to date, individual making the test, material tested, tests conducted, and results) such records would then presumably be records made in the regular course of business that it was the regular course of such business to make within the contemplation of CPLR 4518. In such event the originals, or copies in instances to which the provisions of subdivision (c) would be applicable, would be admissible in evidence to lay the necessary foundation for receipt of the results of breathalyzer tests.

It is worth adding another observation. Perhaps of greater importance than the procedural issue concerning the admissibility of particular forms of documentary evidence, is the underlying question of substantive law—what foundation must now be laid for the admission of breathalyzer results. Breathalyzer equipment and procedures have become familiar and their use is now commonplace. Reliability has been demonstrated and the results of such testing where properly performed are universally accepted. This is not to say, however, that no foundation should be any longer required for introduction of breathalyzer evidence. It is to say that there may now appropriately be some relaxation of the rigorous prerequisites properly required to authenticate the reliability of the scientific equipment and procedures where they were first employed. Based on a wealth of practical experience greater dependence can now properly be placed on according full opportunity, through pretrial discovery and other means, to test and challenge the probative worth of the evidence. Thus, emphasis may be shifted from technical issues of admissibility of evidence to means for measuring its persuasive weight. No precise or even general guidelines can be laid down in advance; necessarily the requirements in each case will depend on the peculair circumstances of that case. We recognize that this may not assure litigants the degree of predictability each might understandably desire. We suggest, however, that while conformity to the more rigorous standards suggested here with respect to the provisions of CPLR 4518 will assure predictability, there will also be instances in which, based on the character rather than the form of the evidence, less exacting proof may be acceptable. To illustrate the perspective by extreme example, evidence of blood pressure readings and of electrocardiograms are generally received without detailed preliminary proof as to the scientific basis for reliability. Our experience with breathalyzers warrants at least some movement in the same direction.

Implicit in these cases are significant questions concerning the use of breathalyzer evidence, but the sparse and inadequate record before us does not afford a proper opportunity to address them. Thus, we do not determine whether or to what degree the People, in laying a foundation for admission of the results of individual tests, would have to establish that the breathalyzer device used was in proper working order, e.g., whether in every instance there must be proof of the alcoholic content of the simulator solution used to calibrate the device. Nor do we say that a properly dated and executed authentication of the certificate of analysis of ampoules by the Director of the New York State Police Scientific Laboratory similar to that introduced in the Randall case would not suffice to permit introduction of the certificate of analysis under CPLR 4518 (subd [c]). Resolution of these and similar issues must await another day and a more fully developed record.

In each of these cases for the reasons first stated the judgment of conviction for violation of subdivision 2 of section 1192 of the Vehicle and Traffic Law must be set aside. It is not possible, on the records and briefs submitted on this appeal, to determine that the erroneous admission of the breathalyzer results did not also infect the convictions for violation of subdivisions 1 and 3 of section 1192.

Accordingly, in each case the order of County Court, Broome County, should be reversed, and the same remitted for a new trial.

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

In each case: Order reversed, etc.