text:
    Morton Weissman et al., Individually and on Behalf of All Present and Future Judges of Suffolk County District Court, Respondents-Appellants, v Herbert Evans, as Administrative Judge and Chief Administrator of the Courts of the State of New York, and as Representative of the Administrative Board of the Judicial Conference of the State of New York, et al., Appellants-Respondents, et al., Defendant.
    Argued June 7, 1982;
    decided July 2, 1982

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Jeffrey I. Slonim and Shirley Adelson Siegel of counsel), for appellants-respondents.
    The minimal salary differential preserved by the Legislature, based upon the pattern consistently followed by the county legislatures, does not deny plaintiffs equal protection of the laws. (Lighthouse Shores v Town of lslip, 41 NY2d 7; United States v Will, 449 US 200; Northeastern Shares Corp. v International Ins. Co. ofN. Y., 240 App Div 80, 265 NY 574; Vance v Bradley, 440 US 93; Salsburg v Maryland, 346 US 545; McGowan v Maryland, 366 US 420; Manes v Goldin, 400 F Supp 23, 423 US 1068; Matter of Rosenthal v Hartnett, 36 NY2d 269; Matter of Hogan v Rosenberg, 24 NY2d 207, revd on other grounds sub nom. Baldwin v New York, 399 US 66.)

      Frederic Block for respondents-appellants.
    I. It is constitutionally impermissible by reason of the equal protection clauses of the State and Federal Constitutions for the State to allow for disparate salaries for the Judges of the State’s two District Courts. (Bennett v County of Nassau, 47 NY2d 535; Alesi v Procaccino, 47 AD2d 887; Matter of Benvenga v La Guardia, 182 Misc 507, 268 App Div 566, 294 NY 526;
      Cass v State of New York, 109 Misc 2d 107; Matter of Stick v Wagner, 36 Misc 2d 51,18 AD2d 454,14 NY2d 530; Brown v Board of Educ., 347 US 483; Reynolds v Sims, 377 US 533; Shaffer v Heitner, 433 US 186; Matter of Hogan v Rosenberg, 24 NY2d 207, revd on other grounds sub nom. Baldwin v New York, 399 US 66; Salsburg v Maryland, 346 US 545.) II. Salary parity should be established retroactive to October 1, 1978. (Alesi v Procaccino, 47 AD2d 887; Stanley v Illinois, 405 US 645; Long v Robinson, 316 F Supp 22, 436 F2d 1116; Levy v Parker, 346 F Supp 897, 411 US 978; Bianchi v Griffing, 256 F Supp 617, vacated on other grounds sub nom. Board of Supervisors of Suffolk County v Bianchi, 387 US 97; Lucas v Colorado Gen. Assembly, 377 US 713; Fisher v Board of Supervisors of County of Ontario, 59 Misc 2d 953; Matter of Abrams v Bronstein, 33 NY2d 488.) III. The case should be remanded to Special Term for the purpose of calculating the retroactive sum each Judge is entitled to receive. (Matter of Adams v New York State Civ. Serv. Comm., 51 AD2d 668; Matter of Dubner v Ambach, 74 AD2d 949, 50 NY2d 803; Matter of Pfingst v Levitt, 44 AD2d 157; Toscano v McGoldrick, 300 NY 156; Matter of Powers v La Guardia, 292 NY 695; People ex rel. O’Loughlin v Prendergast, 219 NY 377.)

      Murray A. Gordon and Richard Imbrogno for Willard W. Cass, Jr., and others, amici curiae.

    The disparity among the salaries of Judges of the same court is unconstitutional. (Matter of Blyn v Bartlett, 39 NY2d 349; Matter of McCoy v Mayor of City of N. Y., 73 Misc 2d 508, 41 AD2d 929; Matter of Abrams v Bronstein, 33 NY2d 488; People v Illardo, 48 NY2d 408; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326; Royster Guano Co. v Virginia, 253 US 412; United States Dept. of Agric. v Moreno, 413 US 528; Lindsley v Natural Carbonic Gas Co., 220 US 61; Califano v Goldfarb, 430 US 199; Eisenstadt v Baird, 405 US 438.)
   OPINION OF THE COURT

Fuchsberg, J.

The plaintiffs, District Court Judges of the Suffolk District Court, seek among other things, a judgment declaring the perpetuation of an unfavorable salary disparity between the plaintiffs and the Judges of the only other District Court in the State, that of adjoining Nassau County, violative of the equal protection provisions of our Federal and State Constitutions. As a supplementary item of relief plaintiffs also sought a judgment covering the resulting unconstitutional salary differential commencing with April 1, 1977, the date the Judges became employees of the State’s unified court system. Named as defendant were the State, its Comptroller, the Chief Administrator of the Courts (both in this capacity and as the representative of the Administrative Board of the Judicial Conference) and the County of Suffolk.

The parties having stipulated that the facts were not in dispute, on a motion for summary judgment Supreme Court, Westchester County, sitting at Special Term, found merit in the constitutional claim and, in a judgment dated July 29, 1980, though it dismissed the complaint against the county, declared that the plaintiffs’ right to equal protection will have been violated unless the other defendants (hereinafter “the State”) took “all appropriate steps to end the salary disparity” prior to October 1, 1980. On cross appeals to the Appellate Division, Second Department, the State directed its attention to the declaration on constitutionality of the salary differential, while the plaintiffs addressed only the correctness of so much of the judgment as allowed the disparity to continue until October 1, 1980. The Appellate Division, applying the rational basis test, as had the Supreme Court, and agreeing that the case presented a potential constitutional violation, modified the judgment by substituting April 1, 1982 for October 1, 1980 as the target date for elimination of the disparity and otherwise affirmed.

On cross appeals to this court, the State challenges the now modified declaration on constitutionality, while the plaintiff Judges confine themselves to “the issue of the appropriate starting date on which plaintiffs were entitled to receive parity with the Judges of the District Court of Nassau County”. For the reasons which follow, we find that the wage disparity represents an unconstitutional impairment of the plaintiffs’ right to equal protection of the laws and that, by way of ancillary relief, the plaintiffs are entitled to judgment for the differentials which were their due since October 1, 1978.

A pivotal point in the events which led to this litigation was the enactment of the unified court budget act, which, to implement the State’s takeover of the courts, provided that judicial personnel were henceforth State employees and that, concordantly, they would be placed on the State payroll on April 1, 1977 (Judiciary Law, § 39, subd 6 [L 1976, ch 966, § 2]).

This abolished the prior system, in which, in many instances, the salaries of Judges, including those in both the Suffolk and Nassau District Courts (L 1962, chs 35, 811), were determined and financed in part by localities. The implications of the change so effected were not left to imagination. As the preamble to the statute put it, “It is both uneconomical and inefficient to have the responsibility of funding this state-operated court system divided among various units of local government. This divided funding blurs responsibility and accountability for an effective court system an d makes the operation of each of the state courts dependent upon varying fiscal capabilities of individual local governments * * * Funding by a single fiscal authority will enable the allocation of moneys and manpower when needed unimpeded by artificial local boundaries and the diverse competing needs of local governmental agencies” (L 1976, ch 966, § 1 [emphasis added]).

Nonetheless, the act suffered existing disparities by a temporally open-ended, provision that “salaries [of District Court Judges] * * * shall continue in effect until altered by state law” (Judiciary Law, § 39, subd 6, par [a] [L 1976, ch 966, § 2]). Thus, no attempt was then made actually to eliminate discrepant financial treatment attributable solely to local government discretion and funding, precisely the kind of nonuniformity it was the avowed purpose of the act to remove.

Over two years later, when, by passing section 221-f of the Judiciary Law (L 1979, ch 55), the Legislature finally did get around to establishing its own salary scales for its newly absorbed District Court Judges, it still chose to maintain rather than to eliminate the disparity. This though on December 1, 1979, years after the State takeover, Judge Herbert Evans, Chief Administrator of the Courts, under legislative mandate that he “investigate whether unreasonable disparity exists in the compensation of judges of courts of the same rank in different parts of the state” (L 1979, ch 55, § 4), reported to the Legislature, to the Governor and to the Chief Judge that continuation of disparity in the courts was “neither necessary, desirable nor equitable” and, with specific regard to the District Courts in Nassau and Suffolk, recommended that their salaries be equalized. Now at the six-year stage, this advice is yet to be heeded.

This long tolerance of the discrepancy cannot be ascribed to any doubt about the accuracy of Judge Evans’ appraisal. For the facts plaintiffs proffered at nisi prius and the defendants did not there contest — and which neither court below found any reason in law to question — included expert appraisals that the two counties, which for many years have formed the State’s Tenth Judicial District, constitute a “true unity of * * * judicial interest * * * indistinguishable by separate geographic considerations”; that the jurisdiction, practice and procedures of each of the District Courts and the functions, duties and responsibilities of their Judges are identical (see Uniform District Court Act); and, that, for practical purposes, as Judicial Conference data certify, their caseloads are substantially the same.

Indeed, lacking adequate explanation for the long delay in eliminating the disparity, the State, as in the lower courts, is now reduced to reiteration of its position that the territorial distinction, coupled with the history of the inequality practiced by the respective counties in years gone by, interdicts an equal protection claim.

It seems to us that the historical differential, in this case at least, cannot serve as a foundation for such an argument. The history to which it alludes almost inevitably was occasioned by the discordant results which were bound to flow from the discredited funding practice which permitted each county to go its own way. But, however intrenched the local influence at one time may have been, it had begun to lose its raison d'etre at least as early as 1962, when the State Constitution first prescribed a unified State-wide court system (NY Const, art VI, § 1, subd a). Its demise obviously had become more imminent by 1972, when a legislative commission reported that “differential treatment within a given court level may be an obstacle to such unification” (Report on Compensation of New York State Legislators and Judges, April 30, 1972, State Commission on Legislative and Judicial Salaries, p 30) and, needless to say, when, in the year before its April 1, 1977 effective date, the preamble to the unified court budget act spoke to the importance of the unified system’s fiscal authority being “unimpeded by artificial local boundaries”, the State must be deemed to have dealt the coup de grace to any remaining vestiges of the policy defendants’ brief would now resurrect. In fine, if anything, unless ancient rather than recent history is resorted to, a study of the past proclaims the proposition that the State has for a considerable number of years come to view differential treatment within a given court level as an irrational rather than a rational way to further the public interest.

Little more can be said for the other prop on which the State posits its equal protection analysis, i.e., that, even absent rational bases, geographical distinctions must survive an equal protection attack so long as they “are not based on constitutionally prescribed categories, such as race”. Authoritatively stated, however, the rule is that, while equal protection does not necessarily require territorial uniformity (see Salsburg v Maryland, 346 US 545 [preMapp v Ohio (367 US 643) case, permitting State to use illegally obtained evidence in one highly urbanized part of Maryland where there was an unusually high incidence of gambling]; Matter of Rosenthal v Hartnett, 36 NY2d 269, 272-273 [“volume of traffic” and criminal court congestion in the larger cities of this State justify an “administrative rather than a judicial standard of proof” in the adjudication of traffic infractions in cities with populations of a million or more]), “[a] territorial distinction which has no rational basis will not support a state statute” (Manes v Goldin, 400 F Supp 23, 29 [three-Judge court], affd 423 US 1068 [charging of court fees]; Commissioner of Public Welfare of City of N. Y. [Martinez] v Torres, 263 App Div 19 [corroboration required for paternity proceedings in New York City, but not elsewhere]).

Under this rule, analysis of Matter of Hogan v Rosenberg (24 NY2d 207, revd sub nom. Baldwin v New York, 399 US 66), on which the defense places heavy reliance, undermines rather than supports its contrary position. For in Hogan, our court upheld the constitutionality of a law which limited jury trial in New York City to crimes punishable by more than one year in prison. In doing so, it took the pains to point out that “the overburdening caseload existing in the criminal courts of the highly populated City of New York has given rise to extraordinary and unique circumstances which manifests the reasonable basis for making such a distinction” {supra, at p 218).

What this all adds up to is that, “ ‘[w]hile distinctions based on geographical areas are not, in and of themselves, violative of the Fourteenth Amendment * * * a state must demonstrate * * * that the classification is neither capricious nor arbitrary but rests upon some reasonable consideration of difference or policy’ ” (Levy v Parker, 346 F Supp 897, 902 [three-Judge court], affd 411 US 978). Stated differently, to meet the test of rationality, which all courts and parties here have agreed is appropriate to this case, it must appear that there is “some ground of difference having a fair and substantial relation to the object of the legislation” (Manes v Goldin, 400 F Supp 23, 29, affd 423 US 1068, supra).

To measure the present case by these principles, we now turn to Matter of Abrams v Bronstein (33 NY2d 488, 492), an equal protection case arising out of a compensation dispute, where the following test was suggested: after ascertaining “the basis of the classification involved and the governmental objective purportedly advanced * * * [t]he classification must then be compared to the objective to determine whether the classification rests ‘upon some ground of difference having a fair and substantial relation’ to the object for which it is proposed (Reed v. Reed, 404 U. S. 71, 76 ***).”

So viewed, there is no rational basis for the geographic classification on which the State leans to support its defense of the disparate judicial salaries. That the two separate counties compensated their District Court Judges differently (not then subject to equal protection analysis), whatever the asserted justification for that difference, is immaterial to consideration of the claim that there is no warrant for differentiation by the now single employer, the State of New York. Far from advancing a legitimate State objective, a different approach would directly contravene the long-heralded and legislatively indorsed substitution of State for local control of the courts. On the undisputed record, since the disparate treatment of the District Courts of Nassau and Suffolk Counties has now long been without rational foundation, there is no choice but to declare it offensive to the plaintiffs’ constitutionally protected right to equal protection of the laws of this State.

Finally, having so decided, we turn to the matter of the date as of which it is appropriate that the obligation to pay the Suffolk County District Judges the differential between the salaries they have been receiving and those paid to their counterparts in Nassau County should be computed. The submission filed on behalf of the plaintiffs, realistically recognizing that a “brief and temporary disparity in salaries incidental to the unification of the courts” would not be unprecedented (Alesi v Procaccino, 47 AD2d 887 [nine-month delay]), suggested an outside date would be October 1, 1978.

In our own consideration, we start with fixed landmarks. One is the fact that approximately six years have now elapsed since the adoption of the uniform court budget act (L 1976, ch 966) and that over half a decade has gone by since April 1, 1977, the date on which, in accordance with the act, the State assumed responsibility for the plaintiffs’ salaries. A second is that a related obligation to classify and so eliminate disparities among the unified court system’s nonjudicial employees was honored without event as of April 1, 1978 (L 1979, chs 309, 311).

But puzzling is the legislative failure to have acted on this subject when, in 1979, it finally focused on the salaries of the District Court Judges. It appears to us that, since the Legislature then found the time to fix salaries, even retroactively to October 1, 1978, it surely was presented with the occasion to see to it that, in the process, the parity required by the Constitution was achieved. Had it so acted, the unconstitutional differential between the Nassau and Suffolk Judges would have been rectified as of the retroactive date set by the Legislature for the action it did take.

This leads quite logically to the conclusion that fixing October 1, 1978 as the date from which to measure the accrual of plaintiffs’ rights would accord with simple equity and fairness. This is particularly so since deferral to a later date would not merely lessen the relief for many plaintiffs, but, in whole or in part, would vitiate it for those who retired on or after the designated date, with corresponding exclusion of parity from their pension bases (see Judiciary Law, § 39, subd 9, par [a]; Retirement & Social Security Law, § 2, subds 2, 9; § 75, subd a, pars 3, 4). A later date would also be an unreasonable and undeserving departure from the long-recognized rule that a remedy should be coextensive with the wrong it is to redress (Wicker v Hoppock, 6 Wall [73 US] 94, 99, quoted with approval in Albemarle Paper Co. v Moody, 422 US 405, 418-419).

In sum, the order of the Appellate Division should be modified, with costs to the plaintiffs, insofar as it denied a remedy prior to April 1, 1982 and the matter remitted to Special Term for the purpose of calculating the amount of salary due the plaintiffs from October 1, 1978, all in accordance with the writing herein, and, as so modified, affirmed.

Judges Jasen, Jones, Wachtler and Meyer concur with Judge Fuchsberg; Judge Gabrielli concurs in result only; Chief Judge Cooke taking no part.

Order modified, with costs to plaintiffs, and case remitted to Supreme Court, Westchester County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . (US Const, 14th Amdt, § 1; NY Const, art I, § 11.)

      . The plaintiffs’ complaint further alleged that monetary allowances in lieu of reimbursement for intercourt traveling expenses, a term of their employment prior to the date of court unification, should have been continued thereafter. However, Special Term having decided this issue adversely to the plaintiffs, they did not press it on appeal. We, therefore, have no occasion to pursue it here.

      . Ironically, because of separate provisions for the President Judge of each court, the President Judge of the Suffolk District Court receives greater compensation than his counterpart in Nassau County. Accordingly, as plaintiffs’ brief advises, he was not joined as a party to this litigation.

      . The amici (Family Court, County Court and Surrogate Court Judges) claim they are similarly affected by this statute.

      . The State, without statistical or other support, suggests that Nassau had to pay its District Court Judges higher salaries than did Suffolk because the former’s candidates were somewhat closer to the lure of private practice in New York City. But it is common knowledge that there has never been a paucity of candidates for the Bench of either county.


source: Caselaw Access Project

author: Jasen, J. Jones, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v John Spann, Appellant.
    Argued June 11, 1982;
    decided July 2, 1982

      POINTS OF COUNSEL

      Philip L. Weinstein and William E. Hellerstein for appellant.
    The trial court constructively amended the indictment charging appellant with robbery, in violation of the State Constitution, when it instructed the jury that a robbery verdict could be based on a finding that appellant took cocaine from the complainant, although the sole theory presented by the prosecution to the Grand Jury, reflected in the allegations in the indictment, and presented at trial, was that the property taken was “jewelry and money” (NY Const, art I, § 6). (Ex parte Bain, 121 US 1; People v Iannone, 45 NY2d 589; Gaither v United States, 413 F2d 1061; Stirone v United States, 361 US 212; People v Cunningham, 48 NY2d 938; People v Van Every, 222 NY 74; Berger v United States, 295 US 78; United States v Salinas, 601 F2d 1279, 654 F2d 319; United States v Crocker, 568 F2d 1049.)

      Mario Merola, District Attorney (Peter D. Coddington and Steven R. Kartagener of counsel), for respondent.
    I. Appellant’s guilt was proved beyond a reasonable doubt by overwhelming evidence. II. The court’s charge to the jury did not impermissibly amend the indictment. (People v Iannone, 45 NY2d 589; People v White, 53 NY2d 721;
      People v Tucker, 55 NY2d 1; People v Sprague, 217 NY 373; People v Johnson, 39 NY2d 364; People v Henderson, 41 NY2d 233; People v Freeman, 22 NY2d 526; People ex rel. Prince v Brophy, 273 NY 90; People v Foster, 19 NY2d 150; People ex rel. Fonseca v La Vallee, 34 AD2d 851.)
   OPINION OF THE COURT

Jasen, J.

The sole issue presented for our consideration is whether the trial court, in its charge to the jury, constructively amended the indictment in violation of defendant’s rights under the State Constitution by modifying an essential element of the crime charged. We conclude that it did not.

The Bronx County Grand Jury handed down an indictment charging defendant with first degree robbery. (Penal Law, § 160.15.) Specifically, the indictment alleged that defendant “on or about October 18, 1979, did forcibly steal property to wit, jewe[lr]y and lawful money from Shaniqua Montgomery and in the course of the commission of the crime he displayed what appeared to be a pistol, revolver or other firearm.” (Emphasis supplied.)

The principle witness for the prosecution was the complainant, Shaniqua Montgomery. She testified that defendant, whom she had known for several months, came to her apartment on October 18, 1979, and took two watches and some gold chains. Montgomery also stated that she discovered $70 was missing from a jacket pocket after defendant fled from the premises.

At the close of the People’s case, the defendant took the stand and testified in his own behalf. While defendant’s story paralleled that of the complainant to a certain extent, there were marked discrepancies concerning the incident of October 18, 1979. Defendant testified that he was an addict suffering from withdrawal on the date in question. He stated that he had obtained drugs from the complainant in the past and that his purpose in visiting the complainant’s apartment was to obtain some heroin from her on credit because he did not have any money. When she refused to give him any heroin, defendant stated that he forcibly removed a quantity of cocaine from her purse and then left the premises. In addition to asserting that he had no gun while at the apartment, defendant specifically disclaimed the theft of any money or jewelry. According to defendant’s version of the incident, he only stole cocaine from the complainant.

The trial court submitted the count of robbery in the first degree to the jury, as well as the lesser counts of robbery in the third degree and petit larceny. The court, over objection by defense counsel, then charged the jury that they could find the defendant guilty of robbery in the first degree and the lesser counts even if they found that defendant had stolen drugs from the complainant rather than “money or jewelry” as specified in the indictment. The jury acquitted defendant of robbery in the first degree, but returned a verdict convicting him of robbery in the third degree.

The New York State Constitution guarantees that “[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury”. (NY Const, art I, § 6.) As we have only recently noted, an indictment, qua document, serves a number of important purposes. “First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense”. (People v lannone, 45 NY2d 589, 594.) Second, an indictment prevents the court or prosecutor from usurping the Grand Jury’s powers since it ensures “that the crime for which the defendant is brought to trial is in fact [the] one for which he was indicted by the Grand Jury”. (Id., at p 594; see, also, Russel v United States, 369 US 749, 770; Ex parte Bain, 121 US 1, 10, 13.) Finally, by specifying the particular crime for which a defendant has been tried, an indictment prevents subsequent retrials for the same offense in contravention of the constitutional prohibition against double jeopardy. (People v lannone, supra, at p 595.)

In furtherance of the constitutional right to indictment by Grand Jury, the Legislature has specified that every indictment must contain, among other things, “[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, (a) asserts facts supporting every element of the offense charged and the defendant’s or defendants’ commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation”. (CPL 200.50.) However, in contrast to common law (see, e.g., People v Van Every, 222 NY 74, 78), a court is now authorized by statute to “order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like” provided the amendment does not change the theory of the prosecution or otherwise serves to prejudice the defendant on the merits. (CPL 200.70, subd 1.)

The indictment in this case clearly fulfilled the statutory and constitutional requirements of due process and fair notice. (See, e.g., People v Cohen, 52 NY2d 584.) The indictment informed defendant that he was accused of forcibly stealing property by use of a weapon from a specified individual on a given date. In addition, defendant was informed before trial, pursuant to voluntary disclosure, of the exact location and time of the robbery. The proof that was presented by the People at trial supported the crime as alleged in the indictment. Defendant cannot now be heard to complain that he was unfairly informed about the nature of the property stolen since it was his own testimony that created the discrepancy between the proof at trial and the factual allegation set forth in the indictment.

Nor do we find any merit to defendant’s argument that there was an impermissible amendment of the indictment with regard to a material element of the crime charged by virtue of the trial court’s instructions to the jury on the nature of the property stolen. The particular nature of the property stolen is not, by statute, a material element of the crime of robbery. Robbery merely requires the forcible stealing of “property” (see Penal Law, art 160), and “property” is rather broadly defined as “any money, personal property, real property, thing in action, evidence of debt or contract, or any article, substance or thing of value including any gas, steam, water or electricity, which is provided for a charge or compensation.” (Penal Law, § 155.00, subd 1.) Furthermore, there is no doubt that the crime charged by the trial court was the same criminal transaction for which the Grand Jury intended to indict the defendant. (See, e.g., People v Ganett, 51 NY2d 991.) But for the type of property involved, the nature of the crime, as well as all of the underlying facts (i.e., victim, time, place and date), were the same.

Most importantly, it must be remembered that, unlike the cases relied upon by the defendant (e.g., Stirone v United States, 361 US 212; People v Geyer, 196 NY 364), any discrepancy between the indictment and the proof at trial was caused by the defendant voluntarily taking the stand in his own behalf and admitting that he committed a different version of the robbery than was alleged in the indictment.

The proof at trial, either as presented by the People or by defendant, is sufficient to sustain his conviction of robbery in the third degree. Indeed, defendant offers no argument to the contrary. Since the charge to the jury provides no basis for overturning this conviction, the order of the Appellate Division should be affirmed.

Jones, J.

(dissenting). I cannot agree that defendant’s conviction should be affirmed.

Although I might agree that, had a timely application been made by the People under CPL 200.70 (subd 1), with notice to defendant (as is expressly required by the statute), the trial court would have had authority to amend the indictment in this case to charge defendant with stealing cocaine or drugs as well as, or instead of, “jewelry and money”, the prescriptions of that statute were not followed in this instance.

Defendant, an addict suffering from heroin withdrawal, testified by way of defense (in the nature of confession and avoidance) that, although he had been in the victim’s apartment and had taken property from her, the purpose and consequence of his conduct was to obtain cocaine and not to obtain either jewelry or money, both of which he denied taking. It was only after this testimony had been placed before the jury, and without any application for amendment of the indictment by the People, that the Trial Judge, in response to the question from the jury — “What robbery charge is made for what items?” — over objection charged in supplemental instructions that the jury could convict defendant if they found that he stole cocaine rather than jewelry and money.

The Legislature has prescribed the procedure for accomplishing permissible amendment of indictments (CPL 200.70, subd 1). That procedure was not followed in this instance. Moreover, to permit such a critical change in the rationale of the prosecution and the proof required for conviction, after defendant had irretrievably committed himself and after the case had been submitted to the jury, in my view, constituted such a denial of defendant’s constitutional right to due process as to call for a reversal of his conviction and a remittal of the case for a new trial.

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

Order affirmed.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Keith Rivers, Appellant.
    Argued June 9, 1982;
    decided June 23, 1982

      POINTS OF COUNSEL

      Livingston L. Hatch for appellant.
    I. Defendant’s statement was not a spontaneous declaration and is suppressible. (People v Wander, 47 NY2d 724; People v Newson, 68 AD2d 377; People v Maerling, 46 NY2d 289; People v Dean, 47 NY2d 967; People v Johnson, 64 AD2d 907; New York, v Howard, 47 NY2d 988; People v Lucas, 53 NY2d 678.) II. The statement of defendant to Detective Pescia and Investigator Heckard is suppressible as a matter of law and is harmful error. (People v Crimmins, 36 NY2d 230.)

      Joseph W. Kelley, District Attorney (Steven J. Greenblatt and Michael A. Gross of counsel), for respondent.
    I. Defendant was convicted based on overwhelming proof of his guilt. II. Defendant’s initial admissions were spontaneously made. (People v Lynes, 49 NY2d 286; People v Albro, 52 NY2d 619; People v Lanahan, 55 NY2d 711; Rhode Island v Innis, 446 US 291; People v Maerling, 46 NY2d 289.) III. The admission of defendant’s later statements constituted harmless error. (People v Samuels, 49 NY2d 218; Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230; People v Almestica, 42 NY2d 222; People v Knapp, 82 AD2d 971; People v Garofolo, 46 NY2d 592.
   OPINION OF THE COURT

Wachtler, J.

The primary question on this appeal concerns the admissibility of a statement made by the defendant in the absence of counsel after his arrest on a warrant and after he had requested and obtained a brief response from the arresting officer as to why he was being charged with the same offense as his companions. The trial court and the Appellate Division held the defendant’s statement admissible on the ground that it was spontaneous or volunteered. The defendant appeals claiming that the statement was the “product of subtle maneuvering on the part of the police”.

In 1979 the defendant was employed as a taxicab driver in the Plattsburg area. In February and March of that year he passed a series of forged checks at local gas stations. The checks, approximately $100 each, were forged by two of the defendant’s friends, King and Reilly, who generally accompanied him but remained in the cab while he presented the checks for payment. The proceeds were then divided among the three of them.

On March 16 the defendant was arrested on a warrant. He was transported to the police station where, after being advised of his rights, he declined to make any statement. However, as the arresting officer was entering information concerning the defendant’s arrest in a police log, after entries relating to King and Reilly, the defendant asked why he was being charged with the same offense as his companions. According to the officer, at this time: “I told him that if he had any part in the crime that he was as guilty of the crime, just as everybody else who was involved in it.” The defendant replied, in effect, that this was ridiculous and, according to the officer, also stated “that he knew the checks were forged after a couple had been passed. He knew that Bobby Riley was making them out but they were not his checks. He didn’t fill them out and he didn’t sign them and therefore he wasn’t doing anything wrong.”

The defendant’s motion to suppress this statement was denied on the ground that it had been volunteered by the defendant. A jury subsequently found the defendant guilty of four counts of possession of a forged instrument and four counts of petit larceny.

The Appellate Division affirmed the conviction. The court found that this statement was properly admitted because the defendant had made it spontaneously.

Under the State Constitution the defendant’s right to counsel indelibly attached upon the filing of the accusatory instrument which provided the basis for the issuance of the arrest warrant (People v Samuels, 49 NY2d 218; CPL 120.10). Consequently, when the defendant was arrested on the warrant the police could not question him in the absence of counsel (People v Samuels, supra). That means, of course, that they could not engage in interrogation or its functional equivalent (People v Lanahan, 55 NY2d 711). The rule, however, does not require the police to take affirmative steps, by gag or otherwise, to prevent a talkative person in custody from making an incriminating statement. Volunteered statements are admissible provided the defendant spoke with genuine spontaneity “and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed” {People v Maerling, 46 NY2d 289, 302-303; People v Lanahan, supra).

The fact that the defendant may have initiated the exchange is not necessarily controlling. Statements made in response to police questioning or during a long informal discussion are not truly spontaneous, even though the defendant may have made the opening remarks (see, e.g., People v Townes, 41 NY2d 97; People v Roberson, 41 NY2d 106; People v Tompkins, 45 NY2d 748; People v Maerling, 46 NY2d 289, supra; People v Cunningham, 49 NY2d 203; People v Bell, 50 NY2d 869; People v Lucas, 53 NY2d 678; People v Lanahan, supra). On the other hand, not every comment made by a police officer in response to an inquiry by the defendant can be said to constitute interrogation, merely because it is followed by an incriminating statement from the defendant {People v Lynes, 49 NY2d 286, 294-295).

The question in such cases is whether the police conduct should reasonably have been anticipated to evoke a statement from the defendant (People v Lynes, supra, p 295) and whether it can be said under the circumstances that the inculpatory statement was “made without apparent external cause” (People v Stoesser, 53 NY2d 648, 650). This essentially requires a factual determination which, if affirmed by the Appellate Division, is beyond review in this court, unless no possible view of the evidence would support the conclusion reached by the lower courts (People v Lynes, supra, p 294; cf. People v Lanahan, supra).

In the case now before us it cannot be said, as a matter of law, that the defendant’s statement was the product of “subtle maneuvering” by the police as the defendant contends. There is no suggestion that the officer deliberately prompted the defendant to ask why he had been arrested and charged with the same offenses as his companions. At the time the defendant asked the question the officer was simply making a contemporaneous record of the defendant’s arrest in the station house log, an apparently routine and necessary police activity. The officer immediately responded to the defendant’s question; there was no hesitation or delay evidencing a desire to exploit the elements of time and place (cf. People v Lanahan, supra). The answer the officer gave was brief and impersonal; it did not go beyond the question asked. It did not provide a complete evidentiary recital of the circumstances known to the police so as to leave the defendant with the impression that “anything but an open admission would be futile” (People v Lanahan, 55 NY2d 711, 714, supra).

In short, the case is essentially indistinguishable from People v Lynes (supra) in which the defendant’s request concerning the basis for an arrest warrant was immediately met by a brief and relatively innocuous answer by the police officer. There we found no basis for setting aside the affirmed finding that the défendant’s reply to the officer’s statement had been spontaneously made. Neither can we find any basis for setting aside the determination in this case.

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

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur.

Order affirmed.

       The Appellate Division also held that a subsequent oral admission made by the defendant in response to questioning by another officer while being transported to his arraignment, should have been suppressed. However, the court concluded that this error was harmless, particularly in view of the fact that the defendant “has already made substantially the same admission in the spontaneous declaration”. This analysis comports with this court’s recent decision in People v Sanders (56 NY2d 51).


author: Wachtler, J. Meyer, J.

text:
    The People of the State of New York, Respondent, v John BB. and Stephen CC., Appellants.
    Argued June 10, 1982;
    decided July 2, 1982

      POINTS OF COUNSEL

      Steven S. Katz for appellants.
    I. Defendants were unlawfully seized when their moving vehicle was blocked front, rear and side by three police cars, on roving patrol, two of them unmarked, without the slightest suspicion that defendants had, were then, or were about to, commit any unlawful act whatsoever. (Carroll v United States, 267 US 132; People v Sobotker, 43 NY2d 559; People v Jennings, 45 NY2d 998; United States v Brignoni-Ponce, 422 US 873; Almeida-Sanchez v United States, 413 US 266; United States v Byrd, 520 F2d 1101; United States v Martinez-Fuerte, 428 US 543; United States v Ortiz, 422 US 891; Delaware v Prouse, 440 US 648; People v Ingle, 36 NY2d 413.) II. Every item seized and every statement taken following the initial unlawful seizure should have been suppressed from use as evidence. (People v Rogers, 52 NY2d 527; Dunaway v New York, 442 US 200; Brown v Illinois, 422 US 590; People v Sobotker, 43 NY2d 559; People v Cantor, 36 NY2d 106; People v Jennings, 45 NY2d 998; People v Allende, 39 NY2d 474; People v Smith, 42 NY2d 961; People v Ingle, 36 NY2d 413; United States v Brignoni-Ponce, 442 US 873.) III. Even if the initial seizure of defendants’ Vehicle was lawful, the search of the trunk of the vehicle was not. (People v Rodney P. [Anonymous], 21 NY2d 1; People v Cantor, 36 NY2d 106.) IV. Even if the initial seizure was lawful, and even if the statements made by defendants and their companions were admissible, and even if the search of the trunk were constitutional, there was still no probable cause to transport all four people to the State Police barracks for further interrogation. (Dunaway v New York, 442 US 200.) V. The confession taken from Stephen CC. following his exculpatory statement was the product of coercion resulting from the failure to repeat the Miranda warnings, and the length of the interrogation and the physical and mental abuse inflicted upon him by his interrogator. (Michigan v Mosley, 423 US 96; People v

      Gary, 31 NY2d 68; People v Grant, 45 NY2d 366; People v Pugh, 70 AD2d 664; People v Winship, 78 AD2d 514.)

      Stephen F. Lungen, District Attorney (Frank J. Labuda and Jeffrey L. Kirsch of counsel), for respondent.
    I. The stop of defendants vehicle was justifiable and proper. (Adams v Williams, 407 US 143; People v Ingle, 36 NY2d 413; People v Jennings, 45 NY2d 998; People v Allende, 39 NY2d 474; People v Sobotker, 43 NY2d 559; United States v Brignoni-Ponce, 422 US 873; Almeida-Sanchez v United States, 413 US 266; United States v Martinez-Fuerte, 428 US 543; People v De Bour, 40 NY2d 210; Delaware v Prouse, 440 US 648.) II. The subsequent acts of defendants gave rise to probable cause rendering the seizure lawful. (Harris v United States, 390 US 234; Coolidge v New Hampshire, 403 US 443; Sibron v New York, 392 US 40; People v La Pene, 40 NY2d 210; People v Cantor, 36 NY2d 106.) III. Probable cause existed to place appellants under arrest. (Brinegar v United States, 338 US 160; People v Oden, 36 NY2d 382; People v Fitzpatrick, 32 NY2d 499; People v McLaughlin, 48 AD2d 722.) IV. The inculpatory statements of appellant Stephen CC. were voluntary beyond a reasonable doubt and admissible against him. (People v Johnson, 40 NY2d 882; People v Rogers, 52 NY2d 527; Wong Sun v United States, 371 US 471.) V. Defendant John BB., as a passenger in Stephen CC.’s automobile, has no standing to assert a Fourth Amendment right with respect to the rifle and stereo speakers seized from Stephen CC.’s automobile. (Rakas v Illinois, 439 US 128; Jones v United States, 362 US 257.)
   OPINION OF THE COURT

Wachtler, J.

In response to a series of burglaries committed in a remote rural region, the local police stopped vehicles traveling in the area. The stops were conducted in a uniform, nonarbitrary and nondiscriminatory manner for the purpose of ascertaining the identity of the occupants and obtaining information regarding the criminal activity. The question on this appeal is whether these stops violate the constitutional proscription against unreasonable searches and seizures.

On December 19,1978 the New York State Police discovered that approximately 40 burglaries of vacant summer homes had occurred in the sparsely populated area of Sullivan County’s Anawanda-Tennanah Lake region. Investigator Connors began surveillance of the area on December 21 with the expressed intent of stopping all of the vehicles that he found and interviewing all people in the general vicinity of the lake.

At about 9:30 p.m. on the same day, defendant Stephen CC.’s automobile was stopped by Connors’ unmarked parked police cruiser and two other police vehicles.

In response to a demand for his driving license and automobile registration, defendant Stephen CC. exited from the car to produce the requested documents. Connors then looked inside the open car door with his flashlight and observed a rifle case protruding from under the front seat as well as several flashlights lying on the floor of the vehicle. Connors seized the rifle case, opened it and discovered that it contained a pellet gun. One of the officers recalled that a pellet gun had been reported stolen from one of the nearby cottages.

Defendant Stephen CC., when asked where he obtained the gun, responded that he bought it from a friend along with a pair of audio speakers which were in the trunk. He could not, however, remember the name of the friend who had sold him the items. Since speakers had also been reported stolen from one of the burglarized cottages, the trunk was opened without Stephen CC.’s consent and the speakers were seized. The other three passengers in the car, including defendant John BB., responded to interrogation regarding their activities in the area with conflicting statements.

Both defendants were taken to police headquarters, waived their rights, and confessed to the commission of several burglaries. After being indicted on multiple counts of burglary in the second degree (Penal Law, § 140.25, subd 1), defendants moved to suppress their confessions and the evidence seized from Stephen CC.’s vehicle on the ground that the initial stop of the vehicle was not grounded upon reasonable suspicion of current criminal activity and was therefore unconstitutional. Following denial of that motion defendants pleaded guilty to four counts of attempted burglary in the second degree (Penal Law, §§ 110.00, 140.25, subd 1) and were adjudicated youthful offenders. The Appellate Division upheld the validity of the roving roadblock and affirmed the judgment of the court below. We agree with the Appellate Division’s determination that the procedure employed by the police was constitutionally permissible and therefore affirm.

The defendants are correct in their contention that the Constitutions, both Federal and State, protect an individual from unreasonable searches or seizures conducted by law enforcement officials. And although not every encounter of an inquisitorial nature rises to the level of a seizure within the meaning of the constitutional language, it cannot be disputed that the stop of Stephen CC.’s automobile was at least a limited seizure subject to constitutional limitations (Delaware v Prouse, 440 US 648; People v Ingle, 36 NY2d 413).

The question then is whether the stop of the defendants was the type of unreasonable seizure prohibited by the Constitution. While this proscription generally forbids any unwarranted intrusion into the private affairs or conduct of any individual, we have noted that there is no absolute right to be free from all official inquisitorial interference however minimally intrusive (People v De Bour, 40 NY2d 210). The indefiniteness of the term “unreasonable” militates against the construction of a general rule of universal application for determining the validity of official intrusions of this nature. Rather, the facts of each case must be examined and the essential inquiry is whether the police conduct may be characterized as reasonable, which in turn requires a balancing of the State’s interest in the inquiry at issue against the individual’s interest in being free from governmental interference (Delaware v Prouse, 440 US 648, supra; People v De Bour, 40 NY2d 210, supra).

We recognize that the obvious impact of stopping the progress of an automobile is more intrusive than the minimal intrusion involved in stopping a pedestrian (People v De Bour, supra; cf. People v Cantor, 36 NY2d 106). But this does not mean that the broad range of factors relevant for the purpose of constitutional examination can never be analyzed in a manner which leads to the ultimate conclusion that the State may stop an automobile and question the occupants for legitimate reasons.

The evidence as developed at the suppression hearing establishes that the determination of the police to stop Stephen CC.’s vehicle was made pursuant to a nonarbitrary, nondiscriminatory and uniform procedure, involving the stop of all vehicles located in the heavily burglarized area, in order to facilitate the concededly legitimate function of acquiring information regarding the recent burglaries. The remote, sparsely populated area subject to surveillance was too large to permit any meaningful utilization of traditional investigative procedures, and the roving patrol was limited to stopping vehicles located in the region in which there had been a large number of burglaries. Under these circumstances the momentary inconvenience inevitable in this police confrontation cannot be said to be unreasonable.

The record before us demonstrates that the stop of Stephen CC.’s vehicle was not undertaken with an intent to harass and was based on much more than the mere whim, caprice, or idle curiosity of government officials. Although not controlling, the elimination of the element of arbitrariness has been identified time and again as a critical factor in determining the reasonableness of official investigative activity of an intrusive nature (e.g., United States v Martinez-Fuerte, 428 US 543, 554; People v De Bour, 40 NY2d 210, supra; People v Ingle, 36 NY2d 413, 419, supra). For this reason, too, the cases relied on by defendants, involving official intrusion of a random and discriminatory nature, are inapposite (United States v Brignoni-Ponce, 422 US 873; People v Sobotker, 43 NY2d 559). In fact, in United States v Martinez-Fuerie (428 US 543, supra), the Supreme Court held that nonrandom checkpoint border stops do not violate the Fourth Amendment because they present no potential for unlimited interference with the use of the highways subject only to the unbridled discretion of government officials. For similar reasons we hold that the Fourth Amendment does not prohibit the police from employing a roving roadblock in a uniform and nondiscriminatory manner in a sparsely populated area in which there has been a recent series of burglaries.

Defendants also contend that even if the initial stop and request for information were proper, the subsequent seizure of the pellet gun and speakers was prohibited. This claim is without merit. The rifle case was in plain view and Investigator Connors acted reasonably in seizing the case and examining its contents for the protection of himself and the other officers. The pellet gun was then identified as potential contraband and this fact, combined with the conflicting explanations offered by the occupants of the vehicle and Stephen CC.’s own statements about the speakers, also known to be reported stolen, supplied the necessary exigency and probable cause to believe that the vehicle contained additional contraband, thereby justifying the warrantless opening of the vehicle’s trunk compartment (United States v Ross, 456 US_, 50 USLW 4580 [June 1, 1982]; People v Kreichman, 37 NY2d 693).

We have reviewed the various other contentions raised by defendants on appeal and find that they, too, are without merit.

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

Meyer, J.

(dissenting). The concept that the need to obtain information concerning numerous recent burglaries in a rural area authorizes an individual police officer to stop every vehicle in the area, without information about or observation of the vehicle or its occupants which gives rise to reasonable suspicion of criminal activity involving it or them, is so inconsistent with prior precedent under both the Federal and the State Constitutions, that I cannot accept it. As is apparent from the failure of the majority to make any reference to the conduct of defendants or the vehicle prior to the conceded seizure of the vehicle (at p 487) and its repeated reference to a nonarbitrary, nondiscriminatory and uniform procedure for stopping all vehicles (at pp 485,488,489), the majority’s ruling leaves to the unconstrained discretion of the officer in the field (provided only that he takes the same action with respect to every vehicle) action which has heretofore been acceptable only after judicial issuance of an area warrant or the administrative adoption of standards, guidelines or procedures promulgated by higher governmental officials than the police officer in the field, or by an exigency, such as the immediate necessity to blockade an area against the escape of a kidnapper with his victim. I, therefore, respectfully dissent.

Clear from the testimony of Troopers Connors and Greaves is it that Connors’ “plan” was to stop every vehicle in the area in order to inquire of any occupant who he was and what he was doing in the area, to see if he might be the burglar or have been a witness to any of the burglaries. Brown v Texas (443 US 47, 52) flatly held that as to an individual whose activity was no different than that of others in the neighborhood, a stop the purpose of which was to ascertain identity and for which the officers lacked reasonable suspicion to believe the person stopped to be engaged or have been engaged in criminal conduct violated the Fourth Amendment (443 US, at p 53), notwithstanding that the neighborhood was one frequented by drug users {id., at p 52).

That the Supreme Court will not approve the procedure now sanctioned by the majority of this court is strongly suggested by its Per Curiam holding in Reid v Georgia (448 US 438, 440), that: “The Fourth and Fourteenth Amend-merits’ prohibition of searches and seizures that are not supported by some objective justification governs all seizures of the person, ‘including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (1968).’ United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975). While the Court has recognized that in some circumstances a person may be detained briefly, without probable cause to arrest him, any curtailment of a person’s liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity” (italics supplied). Even though the purpose for stopping an individual to obtain identification is the prevention of crime, if there is no overweening emergency and the stop is not based on objective criteria for believing that the person stopped is involved in criminal activity, the risk of arbitrary and abusive police practices exceeds tolerable Fourth Amendment limits (Brown v Texas, 443 US 47, 52, supra; but see United States v Martinez-Fuerte, 428 US 543, 560, n 14). Some quantum of individualized suspicion is a prerequisite in order “to assure that the individual’s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field’ ” (Delaware v Prouse, 440 US 648, 655).

Absent an emergency of the type above referred to, only two exceptions to these requirements have been recognized by the Supreme Court. Without finally deciding the question, the court has in United States v Martinez-Fuerte (428 US 543, 564-566, supra) and United States v Brignoni-Ponce (422 US 873, 882, n 7, supra) discussed the possible availability of a judicially issued “area” warrant. It has also held that when the decision to “seize” is made not by the officer in the field but through a plan devised administratively and “embodying explicit, neutral limitations on the conduct of individual officers” (Brown v Texas, 443 US 47, 51, supra) and the need for such stops in furtherance of the public interest has been demonstrated, checkpoint stops, as distinct from roving patrols of the type undertaken by Trooper Connors in the instant case, are permissible (Delaware v Prouse, 440 US 648, 663, supra; United States v Martinez-Fuerte, 428 US 543, 562, supra; United States v Brignoni-Ponce, 422 US 873, 882-884, supra). Here not only was the procedure which the majority holds constitutional devised by the field officer alone, but also there has been no showing of the efficacy of that roving patrol procedure as compared with other available procedures to achieve the end for which instituted (cf. Delaware v Prouse, supra, at pp 658-661).

New York decisions provide no greater support for. the majority’s conclusion. People v Schanbarger (24 NY2d 288, 291) held a trooper’s testimony that at 3 a.m. he observed defendant in an area in which there had been “frequent burglaries” was “clearly insufficient to establish any basis for a reasonable suspicion that the defendant might be engaged or was about to engage in crime” (italics in original). People v Cantor (36 NY2d 106,112-114) held a seizure essentially similar to that which occurred in the present case to be without justification, the record being barren of specific and articulable facts amounting to “reasonable suspicion that such person is committing, has committed, or is about to commit a crime.” People v Ingle (36 NY2d 413), as explained in People v Sobotker (43 NY2d 559, 563), stressed that a stop of a motor vehicle on a public highway “is justified only when conducted pursuant to ‘nonarbitrary, nondiscriminatory, uniform’ highway traffic procedures [italics added], or when there is specific cause or, at least, reasonable [italics in original] suspicion that a motorist is about to violate a law.” Sobotker’s holding was that the act of defendant and his companions in slowing down and glancing at first one bar and then another did not furnish reasonable suspicion for the stop of defendant’s vehicle even though a number of burglaries had recently been reported in the vicinity. And as recently as People v Howard (50 NY2d 583, 590) we reaffirmed the Schanbarger and Sobotker rulings, while holding that the carrying by the male defendant of a woman’s vanity case and his furtive actions when he became aware that he was being observed provided sufficient basis for an inquiry, but no more. Here, of course, no action of the defendants provides any basis for inquiry much less the seizure of defendants and their vehicle, which the majority concedes (at p 487) occurred.

The procedure followed in the present case was not a nonarbitrary, nondiscriminatory, uniform highway traffic procedure. It was, by the majority’s concession clearly a seizure, rather than a stop, and was justified neither by any emergency, nor reasonable suspicion concerning defendants, nor a judicially issued warrant nor an administratively approved checkpoint plan. It was, therefore, unconstitutional.

The order of the Appellate Division should be reversed, the convictions vacated, the evidence and statements suppressed and the indictment dismissed.

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

Order affirmed.

       None of the cases cited by the dissenter prohibit the execution of an investigative procedure which is characterized and circumscribed by its uniform and nondiscriminatory nature and which therefore eliminates any element of arbitrariness in the decision to apply the procedure to a particular vehicle or individual. Indeed without exception the cases decided by this court which are relied upon by the dissenter involve the seizure of one particular individual or automobile upon whom an investigation had already focused. In each case the seizure was held improper because it was based upon neither probable cause nor reasonable suspicion of criminal activity (People u Sobotker, 43 NY2d 559 [sole automobile stopped in vicinity where several burglaries were recently reported]; People v Cantor, 36 NY2d 106 [sole automobile stopped after occupant observed for one hour engaging in suspected criminal activity]; People v Schanbarger, 24 NY2d 288 [sole individual stopped after being observed walking on public highway in area subject to “frequent burglaries”]). Our decision today in no way affects the validity of these cases.

       The relevance of such testimony is established by the Supreme Court’s decisions in Brown v Texas (443 US 47, 52); Delaware v Prouse (440 US 648, 650), and United. States v Brignoni-Ponce (422 US 873, 875, 886, n 11).


text:
    Natural Resources Defense Council, Inc., et al., Appellants, v City of New York et al., Respondents.
    Submitted March 12, 1982;
    decided March 16, 1982
   Motion for leave to appeal denied and interim stay-vacated. Motion for a stay therefore denied.


text:
    In the Matter of Michael Mondello, Appellant, v Augustine Beekman, as Fire Commissioner of the City of New York and as Chairman of the Board of the Board of Trustees of 1B Pension Fund of the City of New York, et al., Respondents.
    Argued February 15, 1982;
    decided March 23, 1982

      APPEARANCES OF COUNSEL

      Linda Marker and Norman Eric Teitler for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Larry A. Sonnenshein and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (78 AD2d 824). We would only add that petitioner has failed to demonstrate that his refusal to accept corrective medical treatment, including surgery, found by the medical board to constitute proper treatment in this case, should be excused.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of MPG Capital Corp. et al., Respondents, v Norman W. Nick, Appellant.
    Argued February 18, 1982;
    decided March 23, 1982

      APPEARANCES OF COUNSEL

      Vito C. Casoni, Irwin R. Gilbert and Bonn A. Randall for appellant.

      Bavid N. Ellenhorn, Bruce S. Kaplan and Pamela R. Winnick for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, New York County, reinstated.

The parties on this appeal having entered into an arbitration agreement contained in the Code of the National Association of Securities Dealers, Inc. (NASD), which at all times provided, among other things, that “[t]he arbitrators shall be empowered to interpret and determine the applicability of all provisions under this Code which interpretation shall be final and binding upon the parties”, we hold that thg arbitrators are empowered to decide (1) whether the 1973 or the 1978 code applies; and (2) whether appellant’s employment compensation claims are within the ambit of the code (see Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Amer., 37 NY2d 91).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    D. Lambert Railing Company, Inc., Appellant, v County of Suffolk, Respondent. Royal Guard Fence Co., Inc., Appellant, v County of Suffolk, Respondent.

      Argued February 8, 1982;
    decided March 23, 1982

      APPEARANCES OF COUNSEL

      Joseph D. Stim and Paula J. Warmuth for D. Lambert Railing Company, Inc., appellant.

      Susan Goldenkranz Pernick for Royal Guard Fence Co., Inc., appellant.

      David J. Gilmartin, County Attorney (Anton J. Borovina of counsel), for respondent.
   opinion of the court

Order affirmed, with costs, for the reasons stated in the Per Curiam opinion at the Appellate Division (80 AD2d 42).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Organization to Assure Services for Exceptional Students, Inc., et al., Respondents, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Appellants.
    Argued February 8, 1982;
    decided March 23, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Wayne L. Benjamin and Shirley Adelson Siegel of counsel), for appellants.

      Michael A. Rebell and Helene M. Freeman for respondents.
   OPINION OF THE COURT

Memorandum.

The appeal taken as of right should be dismissed, without costs, on the ground that the order appealed from does not finally determine the matter within the meaning of the Constitution. On the court’s own motion, leave to appeal is granted to appellants.

The order of the Appellate Division should be modified, with costs to appellants as to all respondents except the Summit School, and the judgment of the Supreme Court, Albany County, dismissing the petition is reinstated as to all respondents except the Summit School. As modified, the order of the Appellate Division granting the petition of respondent Summit School and remitting the matter to the Commissioner of Education for computation of the Summit School’s tuition reimbursement rate for the 1979-1980 school year is affirmed, with costs to respondent Summit School against appellants.

The determination of the Commissioner of Education to impose a 4.5% ceiling on teacher salary increases for petitioners’ pedagogical staff was neither arbitrary nor capricious. In establishing this guideline, the commissioner relied upon statistics compiled by the PERB research office indicating an average 4.5% salary increase during the 1978-1979 school year for public school teachers in the New York City metropolitan area. It therefore cannot be said as a matter of law that the determination had no rational basis, and the limited scope of judicial review in this matter precludes further inquiry (Matter of De Vito v Nyquist, 43 NY2d 681).

Although section 4405 (subd 3, par e) of the Education Law provides that “The commissioner of education shall, annually, determine the allowable tuition rate for each private school for the purposes of this subdivision pursuant to his rules and regulations”, we do not read this provision as requiring that all reimbursable cost limitations be established by adopting an administrative regulation to that effect. Rather, we read the provision as merely requiring the commissioner to adhere and conform to any regulations he may promulgate in connection with the statutory cost reimbursement scheme.

We agree with the Appellate Division, however, that the Commissioner of Education rather than the Commissioner of Social Services is the proper authority to determine allowable tuition reimbursement rates for respondent Summit School for the 1979-1980 school year and thereafter. There being no dispute that the Summit School provides services under article 89 of the Education Law, the interpretation of section 4405 of the Education Law presents an issue of law which does not require the exhaustion of administrative remedies (Matter of De Vito v Nyquist, 56 AD2d 159, 161, affd 43 NY2d 681).

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

Appeal taken as of right dismissed, without costs. On the court’s own motion, leave granted to appellants to appeal from the nonfinal order of the Appellate Division pursuant to CPLR 5602 (subd [a], par 2). Order modified, with costs to appellants against all respondents except Summit School, in accordance with the memorandum herein and, as so modified, affirmed, with costs to respondent Summit School against appellants.


text:
    Ronald S. LeBovici et al., Appellants, v Jamaica Savings Bank, Respondent.
    Submitted February 9, 1982;
    decided March 23, 1982

      APPEARANCES OF COUNSEL

      Ronald, LeBovici, pro se, and Louis Schaeffer for Ronald LeBovici and another, appellants.

      Jerry J. Limoncelli for respondent.

      Leopold S. Rassnick, William P. Tucker, Steven E. Grill, John P. Cuddahy and Joseph E. Kaht for Savings Bank Association of New York State, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Petitioners agreed that their deposit would only “be payable at maturity”, and in exchange for petitioners’ commitment of their funds for a fixed period of time the bank agreed to pay a higher rate of interest than is applicable to savings accounts where withdrawal is permitted upon demand. This agreement was not illusory nor was it rendered illusory by the inclusion of the following provision: “If withdrawal is permitted prior to maturity on Time Savings Accounts, Federal. Deposit Insurance Corporation regulations require as a minimum penalty” a specified amount. Petitioners are mistaken-in their belief that this creates an illusory promise because the bank promised “to permit petitioners to withdraw their money at an earlier date, if the *** bank permitted early withdrawals”. Actually this provision simply specified the consequences of an early withdrawal should the parties subsequently agree to modify or terminate the agreement in this manner. As the agreement itself indicates these are consequences imposed by Federal law (12 CFR 329.4 [f]) and the provision does little more than inform the petitioners of them.

Nor may the petitioners seek to estop the bank from enforcing its contractual right to withhold payment until maturity. The statements made by the bank’s officer regarding past practices did not represent a promise or “implied consent” to permit early withdrawal in the future as petitioners contend.

We have considered petitioners’ other arguments and have found them to be without merit.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Leonard Giordano, Appellant.
    Argued February 12, 1982;
    decided March 23, 1982

      APPEARANCES OF COUNSEL

      Joseph B. Mistrett and Rose H. Scorners for appellant.

      Edward C. Cosgrove, District Attorney (John De Franks and Kurt T. Sajda of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that when the District Attorney had announced his readiness on the record he had satisfied his obligation under CPL 30.30. Whatever may in fact have been the reason why the case was not reached for trial thereafter, there is no basis for dismissal pursuant to that statute (cf. People v Brothers, 50 NY2d 413, 417).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg- and Meyer concur.

Order affirmed in a memorandum.


text:
    Ella Freidus, Appellant, v Todem Homes, Inc., Respondent, et al., Defendant.
    Argued February 15, 1982;
    decided March 23, 1982

      APPEARANCES OF COUNSEL

      John M. Armentano. Samuel S. Tripp and Edward I. Penson for appellant.

      Jesse Rothman and Robert Kruger for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division so far as appealed from should be affirmed, with costs, for the reasons stated in that court’s memorandum decision. We add only that the Appellate Division did not exceed its powers when its order stated that “it is determined that Todem Homes, Inc., has the right to specific performance of the option agreement dated June 10, 1969”. Although not an order granting specific performance in the earlier action, we take this “determination” as a necessary predicate to deciding the question of ownership of the property in dispute.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Meyer taking no part.

Order, insofar as appealed from, affirmed, with costs, in a memorandum.


text:
    Mona Crawford, Appellant, v Bernard Cantor, Respondent.
    Argued February 12, 1982;
    decided March 23, 1982

      APPEARANCES OF COUNSEL

      Filip L. Tiffenberg for appellant.

      Myrna Felder and Raoul Lionel Felder for respondent.
   opinion of the court

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (82 AD2d 791).

Concur: Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer. Judge Jasen concurring in the result only.


text:
    George Kouris, Plaintiff, v Robert W. Blanchette et al., Defendants and Third-Party Plaintiffs-Respondents. Hudson Maintenance Corporation, Third-Party Defendant-Appellant.
    Argued February 8, 1982;
    decided March 23, 1982

      APPEARANCES OF COUNSEL

      Joseph D. Ahearn, Irwin H. Haut, Patricia D'Alvia and Michael Majewski for third-party defendant-appellant.

      Robert M. Peet for third-party plaintiffs-respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (79 AD2d 514).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Richard B. Webster et al., Respondents, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Appellants. (And Three other Proceedings.)
    Argued February 11, 1982;
    decided March 23, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow and Shirley Adelson Siegel oí counsel), for appellant.

      Edward D. Kleinbard, Richard C. Pugh, James A. Duncan and Joanne Zack for respondents.
   OPINION OF THE COURT

Memorandum.

The judgments of the Appellate Division should be affirmed, with costs.

Section 632 (subd [a], par [1]) of the Tax Law defines the adjusted gross income of a nonresident individual. It requires the inclusion of “The net amount of * * * income * * * entering into his [the taxpayer’s] federal adjusted gross income, as defined in the laws of the United States for the taxable year, derived from or connected with New York sources”. (Italics supplied.) It is undisputed that under Federal law $25,000 is excluded from, and therefore does not enter into, Federal adjusted gross.

Section 632 (subd [a], par [1], cl [A]) includes within New York adjusted gross the taxpayer’s distributive share of partnership income determined under section 637. The latter section defines the portion of a nonresident partner’s income derived from New York sources as including “only the portion derived from or connected with New York sources of such partner’s distributive share of items of partnership income *** entering into his federal adjusted gross income, as such portion shall be determined under regulations of the tax commission consistent with the applicable rules of section six hundred thirty-two” (emphasis supplied). As already noted, the taxpayer’s gross as defined by section 632 excludes $25,000.

The necessity for add-backs to overcome the effect of Federal exclusions is recognized in subdivision (c) of section 637, which requires modification of a nonresident partner’s income pursuant to section 612. Yet subdivision (b) of section 612, which meticulously provides in some 22 separate paragraphs (a number of which speak to items “not properly includible in federal adjusted gross” [e.g., par 1], or “not included in federal adjusted gross income” [e.g., par 20] or the “amount allowed as an exclusion or deduction” [e.g., pars 13, 15]) for such add-backs, says nothing about the $25,000 Federal exclusion from a nonresident’s earned income.

The provisions of subdivision (b) of section 617 and section 637 (subd [b], par [2]), relied on by the dissent below, which ignore for State tax purposes a partnership agreement provision concerning treatment of income even though sanctioned by Federal law, are simply beside the point, for the $25,000 exclusion is a product of the Federal tax law, not any partnership agreement.

The result sought to be accomplished by the Tax Commission may well be the fairer or more reasonable way to tax nonresident partnership income but without an amendment to section 612 to require that the $25,000 exclusion be added back, or of sections 632 and 637 to use some phrase other than “entering into”, is beyond the authority of the commission to impose.

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

In each case: Judgment affirméd, with costs, in a memorandum.


text:
    In the Matter of B. Altman & Co., Respondent, v City of White Plains et al., Appellants.
    Submitted February 8, 1982;
    decided March 23, 1982
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of William Cahn, an Attorney, Appellant. Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted March 1, 1982;
    decided March 23, 1982
   Motion for leave to appeal denied.

Judge Wachtler taking no part.


text:
    In the Matter of Theodore R. Dusanenko et al., Appellants, v Sandra Le Fever et al., Respondents.
    Submitted February 22, 1982;
    decided March 23, 1982
   Motion for leave to appeal dismissed for mootness.


text:
    Kansas City Fire and Marine Insurance Company, Plaintiff, v Hartford Insurance Group et al., Respondents, and Jefferson Insurance Company of New York, Appellant.
    Submitted February 1, 1982;
    decided March 23, 1982
   Motion for leave to appeal, insofar as review is sought of the prior order of the Appellate Division of January 25, 1979, denied upon the ground that an appeal lies as of right pursuant to CPLR 5601 (subd [d]), bringing up for review only the said prior order (CPLR 5501, subd [b]). Motion for leave to appeal, insofar as review is sought of the Appellate Division order of December 11, 1981, denied.


text:
    New York City Transit Authority et al., Respondents, v William Lindner et al., Appellants.
    Submitted February 15, 1982;
    decided March 23, 1982
   Motions for leave to appeal dismissed upon the ground that the “judgment” sought’to be appealed from does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, §43, subd [d], p 176).


text:
    In the Matter of Manfred Ohrenstein et al., on Behalf of Themselves and All Other Members of the New York State Senate Similarly Situated, Appellants, v Roger C. Thompson, Individually and as Secretary of the New York State Senate, et al., Respondents.
    Submitted February 15, 1982;
    decided March 23, 1982
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved, and an appeal as of right does not otherwise lie from a unanimous order of affirmance.


text:
    Corbin, Ltd., et al., Respondents, v State Division of Human Rights, Appellant, et al., Respondents.
    Decided March 25, 1982

      APPEARANCES OF COUNSEL

      Ann Thacher Anderson and Robert N. Marx for appellant.

      Elizabeth M. Taylor for petitioners-respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (84 AD2d 524; see, also, American Bank Note Co. v State Div. of Human Rights, 71 AD2d 583, affd 49 NY2d 852).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Susanne M. Beutler et al., Respondents, v Roger Maynard et al., Appellants.
    Argued February 12, 1982;
    decided March 25, 1982

      APPEARANCES OF COUNSEL

      David C. Brautigam for appellants.

      Raymond W. Bulson for respondents.
   OPINION OF THE COURT

Memorandum.

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

The factual determinations made by the Appellate Division more nearly conform to the weight of the evidence, and we find no error in that court’s application of the pertinent rules of law. Respondents Susanne M. Beutler and Martha Randazzo demonstrated their entitlement by prescription to free access to and use of the right of way known as Linwood Drive Extension.

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

Order affirmed, with costs, in a memorandum.


text:
    Adler & Neilson Co., Inc., Respondent, v Insurance Company of North America, Appellant.
    Argued February 17, 1982;
    decided March 25, 1982

      APPEARANCES OF COUNSEL

      Michael Majewski and Joseph D. Ahearn for appellant.

      Jerrold Morgulas and Howard M. Rosen for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for entry of judgment in conformity with this memorandum.

The exclusion from insurance coverage under a contractual property damage policy of “property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof” has received judicial attention in several cases in our court. It operates to deny the insured coverage for damage to its own work product but not for damage caused by the insured to the work product of others. Thus, for example, in Zandri Constr. Co. v Stanley H. Calkins, Inc. (81 AD2d 106, affd 54 NY2d 999) where the insured contracted for the construction of a church, when a defect in construction required the expenditure of substantial sums to repair the building, the damage was to the work product of the insured (i.e., the church edifice) and thus excluded from insurance coverage. By contrast, in Sturges Mfg. Co. v Utica Mut. Ins. Co. (37 NY2d 69) where the defect was in stitching on the strap component of ski bindings the insurer was held obliged to defend the manufacturer of the straps against claims for damage to the bindings (i.e., the larger unit of which the insured’s product was but a component).

In the case now before us the insured subcontractor was responsible for the installation of steel shelf angles on the exterior walls of a 19-story reinforced concrete building which were used to transfer the weight of the masonry facing onto the structure of the building itself. When there was a failure of the masonry facing and it was determined that the shelf angles had been incorrectly installed, the insured was backcharged in the amount of $56,438.43 for repair and replacement costs. In this subsequent action against the insurer the insured computed its damages as follows:

“(a) Masonry work resulting from repair of defective relieving angles $9,328.00
“(b) Repair of damage to metal air conditioning enclosures caused by scaffold tie-back where defective shelf angles were repaired 1,296.00
“(c) Repair work performed by general contactor resulting from defective relieving angles 4,305.70
“(d) Repair work performed by painting contractor resulting from defective relieving angles 1,355.00.
“(e) Caulking of areas where remedial work performed necessitated by defective relieving angles 12,774.00
“(f) Work performed by Plaintiff necessitated by defective relieving angles 27.380.43
Total $56,438.43”

The insurer, appearing to recognize that items (a) through (e) were for damages the insured suffered for injury to the work product of others, now acknowledges that those five items fall within the coverage of the policy. Only the sixth item, (f), is at issue on this appeal. As the insurer properly contends, that item consists of damages to the work product of the insured itself and accordingly is excluded from coverage under the insurance policy in this case.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    In the Matter of East 56th Plaza, Inc., Respondent, v New York City Conciliation and Appeals Board, Appellant.
    Argued February 15, 1982;
    decided March 25, 1982

      APPEARANCES OF COUNSEL

      Cullen S. McVoy, Ellis S. Franke and William E. Rosen for appellant.

      David Abrams and Arthur Richenthal for respondent.
   opinion of the court

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, New York County, reinstated.

Section 60 of the Code of the Real Estate Industry Stabilization Association of New York City requires the landlord to offer the tenant renewal of the lease on the same terms except for authorized rent increases. Subdivision 7 of section 61 of the code creates an additional exception permitting the landlord to include a 90-day termination clause in the lease whenever the landlord has satisfied the Department of Housing Preservation and Development that a proposed co-operative or condominium plan has been submitted to the Attorney-General. The obvious statutory scheme and purpose is to require the landlord to provide the tenant, within the statutory period, with a binding offer containing all terms of the lease including the possibility of premature termination if a pending condominium or co-operative plan should become effective. Acceptance by the tenant then creates a binding lease agreement on the terms authorized by statute and included in the offer. Because in this case the offer did not, and could not then, include the cancellation clause prior to the tenant’s acceptance, that clause could not be part of the binding lease agreement.

The fact that the landlord may not have intended the proposed lease and transmittal letter to constitute a binding offer is immaterial because the statute requires that the offer be binding.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Fuchsberg concur in memorandum; Judges Gabrielli and Meyer dissent and vote to affirm for reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (80 AD2d 389).

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Alexander Hall, Appellant. The People of the State of New York, Respondent, v Harry Hall, Appellant.
    Argued February 16, 1982;
    decided March 25, 1982

      APPEARANCES OF COUNSEL

      Judith L. Turnock and William E. Hellerstein for Alexander Hall, appellant.

      Eugene M. Beilin and Benjamin Heinrich for Hariy Hall, appellant.

      Mario Merola, District Attorney (Everett N. Hughes and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

In each case the order of the Appellate Division should be reversed and a new trial ordered.

A request was made to charge the jury on the lesser included offense of assault in the third degree. This request was refused by the court for the stated reason that the defendants conceded that the victim suffered serious physical injury.

While the court was correct in noting the defendants’ concession with respect to the serious physical injury which the victim had in fact suffered, there was no concession that serious physical injury was the consequence which the defendants intended. Because the prosecution may have failed to prove the requisite intent to cause serious physical injury, and this lack of proof may have led the jury to convict defendants of assault in the lesser degree, the court erred in refusing the requested charge.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

In each case: order reversed, etc.


text:
    The People of the State of New York, Respondent, v Mary K. Angus, Appellant.
    Argued February 17, 1982;
    decided March 25, 1982

      APPEARANCES OF COUNSEL

      Frank V. Bifera and Douglas P. Rutnik for appellant.

      Sol Greenberg, District Attorney (Ilene R. Bergman of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (81 AD2d 971).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Roger L. Rainbow, Appellant, v Albert Elia Building Co., Inc., et al., Respondents.
    Argued February 15, 1982;
    decided March 25, 1982

      APPEARANCES OF COUNSEL

      Paul William Beltz for appellant.

      R. William Larson and Allen H. Beroza for Albert Elia Building Co., Inc., respondent.

      Sheldon Hurwitz for Harley Davidson, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the opinion by Justice Richard D. Simons at the Appellate Division (79 AD2d 287).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Eugene Rogers, Appellant.
    Argued February 17, 1982;
    decided March 25, 1982

      APPEARANCES OF COUNSEL

      Lee Cross for appellant.

      Mario Merola, District Attorney (Peter D. Coddington and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Under the circumstances of this case, not the least of which is that the experienced defendant was the only participant in the plea bargaining process in a position to have firsthand knowledge as to whether the previous conviction was for a felony, we cannot say that the Appellate Division erred in limiting its corrective action to a grant of permission to the defendant to withdraw his guilty plea and substitute one of not guilty (cf. People v McConnell, 49 NY2d 340).

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur; Judges Jones and Meyer dissent and vote to reverse for reasons stated in the dissenting memorandum by Justice Samuel J. Silverman at the Appellate Division (81 AD2d 564, 565-566).

Order affirmed in a memorandum.


text:
    In the Matter of Charlotte Bloomberg-Dubin et al., Appellants, v Board of Education of the City of New York et al., Respondents.
    Argued February 18, 1982;
    decided March 25, 1982

      Matter of Bloomberg-Dubin v Board of Educ., 82 AD2d 854, affirmed.
    APPEARANCES OF COUNSEL

      Benjamin M. Zelman and Neal Rosenberg for appellants.

      Frederick A.O. Schwarz, Jr., Corporation Counsel (Pamela Seider Dolgow and Ronald E. Sternberg of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (82 AD2d 854).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Johnny Rodriguez, Also Known as Gordo, Appellant.
    Argued February 17, 1982;
    decided March 25, 1982

      APPEARANCES OF COUNSEL

      Richard T. Farrell for appellant.

      Robert M. Morgenthau, District Attorney (Bruce Allen and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We cannot say on the facts of this case that the Trial Judge’s denial of defendant’s application for a second competency hearing was an abuse of discretion as a matter of law, either under CPL 730.30 or 730.60 (subd 2) as it read at the time of defendant’s trial.

The other error alleged, not having been preserved for review by appropriate objection or request for curative instruction, is beyond our power of review.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v John A. Battaglia, Appellant.
    Argued February 12,e 1982;
    decided March 25, 1982

      APPEARANCES OF COUNSEL

      Joseph A. Shifflett, Rose H. Sconiers and Joseph B. Mistrett for appellant.

      Edward C. Cosgrove, District Attorney (John J. De Franks and Dennis C. Vacco of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, defendant’s motion to suppress granted, and a new trial ordered for the reasons stated in the dissenting opinion of Justice Stewart F. Hancock, Jr., at the Appellate Division (82 AD2d 395-397).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


author: Fuchsberg, J.

text:
    Charles W. Ryan, Jr., Appellant, v State of New York, Respondent.
    (Claim No. 59804.)
    Argued February 18, 1982;
    decided March 25, 1982

      APPEARANCES OF COUNSEL

      Charles A. Schiano and Charles O. Baisch for appellant.

      Robert Abrams, Attorney-General (.Henderson G. Riggs and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

According to claimant’s theory of liability as stated in his verified bill of particulars, the acts of prosecutorial misconduct complained of were undertaken by the various employees of the State for the purpose of advancing their own personal interests. That being so, the doctrine of prosecutorial immunity and the legal principle that vicarious liability cannot be imposed upon the State as employer under the doctrine of respondeat superior in such circumstances preclude recovery against the State. (Imbler v Pachtman, 424 US 409; Sauter v New York Tribune, 305 NY 442, 444-445; accord Restatement, Agency 2d, § 235; see, also, Cornell v State of New York, 46 NY2d 1032; Johnson v Daily News, 34 NY2d 33; see, generally, Prosser, Law of Torts [4th ed], § 70, pp 464-466; 2 Harper and James, Law of Torts, § 26.9, pp 1391-1392.) Therefore, claimant’s action properly was dismissed.

Fuchsberg, J.

(concurring). Aside from the pleaded acts of prosecutorial misconduct to which the majority confines itself, claimant’s allegations of aggrievement, not without support in the record, may also be said to spell out a charge that the accusations which were made against him not only were baseless but hardly free from political motivation. But, assuming these conflicted with the Code of Professional Responsibility (DR7-103; EC7-14; see, also, EC7-13) or could be thought to justify action to vindicate the victim’s reputation (cf. United States v Modica, 663 F2d 1173, 1185), it seems settled that these too could not support an action against the sovereign in this State (see Rao v State of New York, 74 AD2d 964, mot for lv to app den 50 NY2d 803, cert den 449 US 982; Cunningham v State, 71 AD2d 181).

Judges Jasen, Gabrielli, Jones and Wachtler concur; Judge Fuchsberg concurs in a separate memorandum; Chief Judge Cooke and Judge Meyer taking no part. Order affirmed, with costs, in a memorandum.


text:
    In the Matter of James McBride et al., Respondents, v Karin E. Perez, as Deputy Commissioner of the Division of Adult Residential Care of the Department of Social Services, et al., Appellants.
    Argued February 18, 1982;
    decided March 25, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert S. Hammer, Shirley Adelson Siegel and Maryellen Weinberg of counsel), for appellants.

      John F. Castellano and Leonard S. Clark for respondents.
   OPINION OF THE COURT

Memorandum.

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

In the circumstances disclosed in this record it was not error as a matter of law for the Appellate Division to reinstate that portion of the petition which sought a determination that the letters sent to residents and operators of residential care facilities suggesting that approximately $100 of the special energy allowance paid in January, 1980 “were an abuse of discretion and were arbitrary and capricious”, and thereupon to convert the proceeding to an action for a declaratory judgment and in the converted action to grant the declaration sought. In so holding, we do not reach or address the contention of appellants that the special energy allowance granted by the Congress under Public Law No. 96-126 was not a “personal allowance” within the meaning of section 131-o of the Social Services Law.

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

Order affirmed, with costs, in a memorandum.


text:
    Bankers Trust Hudson Valley, N. A., Appellant, v Arthur Y. Bressman et al., Respondents.
    Decided March 25, 1982

      APPEARANCES OF COUNSEL

      David L. Posner for appellant.

      Mark Cask for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. It was error as a matter of law to have denied the motion to dismiss where plaintiff deliberately chose not to serve the complaint within the prescribed time (see Barasch v Micucci, 49 NY2d 594).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Lloyd Coleman, Appellant.
    Submitted March 22, 1982;
    decided March 25, 1982
   Motion for extension of time and continuation of stay granted and stay continued pending determination of the appeal (CPL 460.60, subd 3). [See 54 NY2d 683.]


text:
    In the Matter of Julius M. Gerzof, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent. In the Matter of Julius Gerzof, Appellant. Solomon A. Klein, Respondent.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Submitted March 15, 1982;
    decided March 25, 1982
   On the court’s own motion and on resubmission of appellant’s opposing papers, motions to dismiss appeals reconsidered and, upon reconsideration, the Court of Appeals adheres to its determination dismissing the appeals. [See 55 NY2d 1038.]


text:
    The People of the State of New York, Respondent, v Leonard Green, Appellant.
    Submitted March 22, 1982;
    decided March 25, 1982
   Motion to vacate an order dismissing an application to terminate a stay and revoke bail denied; motion for an order extending the stay and for other relief denied. [See 54 NY2d 757.]


text:
    Morris C. Gurnee, Appellant, v Aetna Life and Casualty Company, Respondent. Moshe Weinreich, Appellant, v State-Wide Insurance Company et al., Respondents, et al., Defendants.
    Submitted March 15, 1982;
    decided March 25, 1982
   Motion for reargument denied, with $20 costs and necessary reproduction disbursements. Motion for a stay pending application to the United States Supreme Court for a writ of certiorari dismissed. Motion for a stay referred to Chief Judge Cooke for determination pursuant to subdivision (f) of section 2101 of title 28 of the United States Code. [See 55 NY2d 184.]

Judge Fuchsberg taking no part.