author: Fuchsberg, J. Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Gabriel C. Hodge, Appellant.
    Argued March 23, 1981;
    decided June 18, 1981

      POINTS OF COUNSEL

      Richard D. Wickerham for appellant.
    I. The case of the People is predicated upon the inference that defendant Joseph Weiseman must have slipped out when Devine took out his nine prisoners. This inference might have been a fair one, if it were not for the fact that these same witnesses on behalf of the People contradict it. Devine said that he had his nine prisoners all by name. They were the nine that he signed in, and the nine who were signed out, and both Darcy and Creen say that defendant did not leave the cell. Under these circumstances and this proof, we do not see how the guilt of defendant has been proved beyond a reasonable doubt. A review of the record in the above-entitled matter clearly warrants the conclusion that the People have similarly failed to establish the guilt of defendant beyond a reasonable doubt. The judgment of conviction of defendant-appellant should accordingly be reversed. (People v Weiseman, 255 App Div 956, 280 NY 385; United States v Nix, 501,F2d 516; United States v Bailey, 585 F2d 1087.) II. The right of an accused to have compulsory process for obtaining witnesses in his favor has been a Sixth Amendment right made applicable to the States through the due process clause of the Fourteenth Amendment. That right, in this State, is guaranteed by section 12 of the New York Civil Rights Law. Moreover, that right is unqualified, unless arising in a joint trial and the prospective witness codefendant objects. Accordingly, the application of the defendant-appellant for an order, directing the production of individuals, as witnesses, then confined in New York State and County of Schenectady, New York, correctional facilities, should have been granted by the trial court. (People v Owens, 28 AD2d 914, 22 NY2d 93; People v Wells, 272 NY 215; People v O’Regan, 221 App Div 331; Washington v Texas, 388 US 14; People v Bai, 7 NY2d 152; Matter of Danaher v Harris, 236 App Div 481; 787 Cent. Park Ave. v State of New York, 5 AD2d 628; People v Sher, 69 Misc 2d 847.) III. The preliminary examination of the case of the People is a critical stage of the proceedings against defendant, so far as the right to counsel is concerned. It is the position of defendant-appellant that on February 7, 1979, he was taken from the Schenectady County Jail, Schenectady, New York, to the Town Court, Town of Princetown, New York, for arraignment upon the charge of escape in the first degree; that thereafter, the case of defendant-appellant was postponed until February 14, 1979, by reason of the fact that defendant-appellant had requested counsel. On February 14, 1979, defendant-appellant reappeared, without counsel, in the Town Court, Town of Princetown, New York. On this date, a preliminary hearing was held by the Town Court, Town of Princetown, New York, and defendant-appellant, then unrepresented by legal counsel, was held for the action of the Grand Jury of the County of Schenectady, New York. (People v Epps, 67 Misc 2d 907, 32 NY2d 706; Coleman v Alabama, 399 US 1; Blue v United States, 342 F2d 894; People v Burwell, 51 Misc 2d 269, 30 AD2d 842, 26 NY2d 331; People v Samuels, 49 NY2d 218; People v Cunningham, 49 NY2d 203; People ex rel. Taylor v Smalley, 121 Misc 331; People v Porter, 90 Misc 2d 791.) IV. Under a statute providing that service of an indeterminate sentence shall satisfy any definite sentence imposed upon a person for an offense committed prior to the time at which the indeterminate sentence was imposed, a defendant, whose offense forming the basis of a one-year sentence had occurred prior to the imposition of the indeterminate sentence, should not have received a sentence to be served consecutively thereto. (People v Lewis, 49 AD2d 952; People v Miller, 55 AD2d 596; People v Borrero, 64 AD2d 637; People v Levin, 50 AD2d 575; People v Williams, 49 AD2d 805; People v Quiles, 72 AD2d 610; People v McDougle, 67 AD2d 989; People v Corrado, 65 AD2d 760; People v Serrano, 15 NY2d 304.)

      John B. Poersch, District Attorney (Arkley L. Mastro, Jr., and Clifford T. Harrigan of counsel), for respondent.
    I. The People have proved appellant’s guilt beyond a reasonable doubt. (People v Weiseman, 280 NY 385.) II. The court did not err in denying appellant’s motion to produce witnesses in prison. (People v Salatte, 185 Misc 858; People v Gruberman, 183 Misc 535; People v Sher, 69 Misc 2d 847; People v Owens, 22 NY2d 93.) III. Any error at local criminal court level is superseded by a subsequent indictment. (People v Winch, 50 AD2d 948; People v Tornetto, 16 NY2d 902; People ex rel. Hirschberg v Close, 1 NY2d 258; People v Solomon, 91 Misc 2d 760; People v Abbatiello, 30 AD2d 11; Matter of Friess v Morgenthau, 86 Misc 2d 852; People v Ackrish, 92 Misc 2d 431; People v Laval, 33 AD2d 799.) IV. The court did not err in sentencing appellant to a consecutive indeterminate sentence.
   OPINION OF THE COURT

Fuchsberg, J.

Defendant Gabriel Hodge has been convicted of the felonies of burglary in the third degree and escape in the first degree, each arising from an incident unrelated to the other. On appeal from an Appellate Division order of affirmance, the main issue we confront is whether he is entitled to a reversal of the escape conviction because a preindictment preliminary hearing on that charge, held pursuant to GPL 180.10 (subd 2), was conducted in the absence of retained counsel. For the reasons which follow, we hold that he is and that the appropriate corrective action is a new trial.

Hodge, who was then being held at the Schenectady County Jail in connection with a multicount indictment, was arraigned on a charge of escape in the Princetown Town Court. The case was adjourned for a week in order to afford him an opportunity to retain an attorney.

On the appointed date, the defendant appeared alone, but informed the court that he had retained counsel, whose name he furnished to the court and for whose absence on this day he was unable to account. When defendant demurred at having the hearing go forward without the presence of his lawyer, the court insisted, “You have had a chance to obtain counsel Your counsel is not present. So we are going to proceed without your counsel for this matter.”

In this case the handicap this represented is not dependent on inference alone. The record reveals, for instance, that during the examination of one of the People’s witnesses, when the defendant was offered an opportunity to examine a document before it was received into evidence, he stated, “I am not an attorney. So I have never seen a preliminary hearing conducted without an attorney present. So it would be senseless to show this to me, you know.” At another point, offered an opportunity to cross-examine, he responded, “Like I have said before, I have never seen another preliminary hearing being conducted without a lawyer being present,” To this the court rejoined, “You were informed of your rights to an attorney. You have talked to your attorney in the meantime and your attorney is not present. In the criminal procedure law, if your attorney is not present after adequate time the court can proceed to examine the case.”

At the conclusion of the hearing, the court found that there was reasonable ground to believe that the crime charged had been committed. The defendant was then bound over for the Grand Jury, which was to indict him for escape in the first degree, and, after proceeding to trial with counsel, he was convicted. Later, he separately pleaded guilty to burglary in the third degree in satisfaction of all the charges on which he was being held at the time he had been arraigned for the escape.

We begin our analysis with the observation that, since most constitutional rights are not self-executing, the right to counsel may be the most basic of all. Conscious of its role, in criminal cases in particular we have called for “the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceedings against him” (People v Cunningham, 49 NY2d 203, 207). And, in so protecting the right to a lawyer’s assistance from the time the criminal process is initiated (see People v Settles, 46 NY2d 154, 161), an explicit and implicit goal is that a system which ideally seeks equal representation for the State and for the defendant should move in that direction in fact as well as in theory.

With these concerns in mind, it is hardly surprising that the Supreme Court has ruled that a preliminary hearing is “a ‘critical stage’ of the State’s criminal process”, thus triggering the United States Constitution’s guarantee that a defendant be afforded “the guiding hand of counsel” (Coleman v Alabama, 399 US 1, 9). After all, a preliminary hearing is no vestigial remnant of an earlier day. It has many functions besides the obvious formal ones, such as reduction of excessive charges, prompt arrangement for release where appropriate and, above all, early screening of unjustifiable and .unprovable charges against the innocent.

In a very real sense, as scholars and practitioners agree, since the prosecutor must present proof of every element of the crime claimed to have been committed, no matter how skeletally, the preliminary hearing conceptually and pragmatically may serve as a virtual minitrial of the prima facie case (see Amsterdam, Segal & Miller, Trial Manual for the Defense of Criminal Cases [3d ed, 1974], § 139 et seq.J. In its presentation, the identity of witnesses, to greater or lesser degree, testimonial details and exhibits, perforce will be disclosed. Especially because discovery and deposition, by and large, are not available in criminal cases, this may not only be an unexampled, but a vital opportunity to obtain the equivalent. It has even been suggested that “in practice [it] may provide the defense with the most valuable discovery technique available to him” (United States ex rel. Wheeler v Flood, 269 F Supp 194, 198 [Weinstein, J.]; see Hawkins v Superior Ct., 22 Cal 3d 584, 588-589 [Mosk, J.]).

Since the hearing provides an occasion for appraising witnesses and others who are likely to participate in the ultimate trial, at least as often as not attentive and sensitive counsel gain knowledge and insight that will be of invaluable assistance in the preparation and presentation of the client’s defense. Moreover, judicious exercise may be made of the power of subpoena, which, in the discretion of the court, is available at a preliminary hearing (see CPL 180.60, subd 7; Amsterdam, Segal & Miller Trial Manual for the Defense of Criminal Cases, op. cit., § 142). Its use to call to the stand witnesses whom the People have not elected to summon may present the only way in which a recalcitrant though material witness can be interrogated (Myers v Commonwealth, 363 Mass 843). This may turn out to be a fortunate perpetuation of critical testimony of witnesses who later may not be available for trial (cf. People v Simmons, 36 NY2d 126, 131). Most important, early resort to that time-tested tool for testing truth, cross-examination, in the end may make the difference between conviction and exoneration. (See, generally, Bailey & Rothblatt, Successful Techniques for Criminal Trials, § 25.)

In this perspective, we must reject, as did the Supreme Court in Coleman (399 US, at pp 8-9, supra), the People’s suggestion that, because the Grand Jury subsequently indicted the defendant, any infirmities that occurred at the flawed hearing may be excused. True, the State, by presenting the case to a Grand Jury in the first instance, may bypass the preliminary hearing stage entirely (see, e.g., People v Edwards, 19 Misc 2d 412). And, though a preliminary hearing results in dismissal, it may nevertheless succeed in obtaining an indictment at the hands of a Grand Jury (People ex rel. Hirschberg v Close, 1 NY2d 258; but see Graham & Letwin, The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations, 18 UCLA L Rev 635, 728-731, noting that prosecutors will “resubmit” only in “special” cases such as where additional evidence is subsequently obtained). But, though in the former case the People will have obviated the preliminary hearing process and, in the latter, rendered the favorable disposition ineffectual, once it pursues the path of the preliminary hearing, the defendant becomes entitled to have it conducted with full respect for his right to counsel (cf. Douglas v California, 372 US 353 [no constitutional right to appeal, but if appellate review permitted, counsel must be appointed for indigent criminal defendants] ).

Moreover, by no means did the Grand Jury proceeding compensate for the counselless hearing. It offered, for instance, no opportunity to exercise the privileges of subpoena or of cross-examination or even of having the examination of witnesses conducted in the presence of those whom they accused (see CPL 190.50). That a defendant, in some circumstances, may obtain a transcript of some of the testimony before the Grand Jury is no substitute. For, “Such a transcript will invariably reflect only what the prosecuting attorney permits it to reflect; it is certainly no substitute for the possibility of developing further evidence through a probing cross-examination of prosecution witnesses — a possibility foreclosed with the denial of an adversarial proceeding” (Hawkins v Superior Ct, 22 Cal 3d 584, 589, supra; cf. CPL 670.10; People v Johnson, 51 AD2d 884 [recognizing that preliminary hearing testimony, but not Grand Jury testimony, may on occasions be used at trial when a witness dies or disappears]).

We note too, that the distinction between denial of effective assistance of counsel at trial and, as here, its denial at a preliminary stage of a case is of no consequence. To be sure, in contrast to cases in which the infringement of the right to counsel occurs at trial — where it is “too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial” (Glasser v United States, 315 US 60, 76; see, e.g., People v Arroyave, 49 NY2d 264; People v Felder, 47 NY2d 287) — its denial at a preliminary hearing may very well be subject to harmless error analysis (Coleman v Alabama, 399 US 1, 10-11, supra; Moses v Helgemoe, 562 F2d 62; Schnepp v Hocher, 429 F2d 1096, 1101). In either case, however, it is of constitutional dimension.

But this is not such a case. On the present record, it is impossible to assert “beyond a reasonable doubt” that the deprivation of counsel produced no adverse consequences (Chapman v California, 386 US 18, cited in Coleman v Alabama, supra, at p 11; People v Knapp, 52 NY2d 689). This is particularly clear because the test must be not what the hearing did not produce, but what it might have produced if the defendant’s right to counsel had not been ignored (see Moses v Helgemoe, 562 F2d 62, supra; Schnepp v Hocher, 429 F2d, at p 1101, supra; cf. People v Jones, 47 NY2d 409, 417). So measured, the result of such inquiry would have to be pure speculation.

Since, therefore, there must be a reversal we now turn our attention to the corrective action. Ordinarily, a defect in preliminary proceedings should not vitiate a subsequent indictment (People ex rel. Hirschberg v Close, 1 NY2d 258, supra). In most instances, it could be adequate and appropriate to afford a defendant in such case an opportunity to reopen the preliminary hearing though subsequent to indictment (see Coleman v Burnett, 477 F2d 1187; Ross v Sirica, 380 F2d 557; cf. State v McCloud, 357 So 2d 1132 [La]; contra, United States v Milano, 443 F2d 1022). However, since, in the case before us now, there has been a full trial, on that occasion the People’s case was most certainly “discovered”. On a new trial, the defendant will then be in a position comparable to the one he would have occupied had his right to counsel not been compromised (cf. Schnepp v Hocher, 429 F2d, at p 1101, supra).

Finally, we add that we have considered the other contentions raised by the defendant and find them to be either without merit or rendered academic by our decision on the counsel issue.

Accordingly, the order of the Appellate Division should be modified by reversing the conviction of escape in the first degree, vacating the sentence imposed thereon, and remitting the case to the Schenectady County Court for a new trial in accordance with this opinion, and, as so modified, affirmed.

Gabrielli, J.

(dissenting). It has always been the law of this State that the Grand Jury has the power to indict regardless of whether a defendant’s preliminary hearing has resulted in a dismissal or whether a preliminary hearing has been held at all (People ex rel. Hirschberg v Close, 1 NY2d 258, 261). That body is not bound by what occurred before the Magistrate and it may indict a person when the appropriate evidence before it provides reasonable cause to believe that such person committed an indictable offense (see CPL 190.65, subd 1). Nevertheless, as the majority notes, in Coleman v Alabama (399 US 1) the Supreme Court held that when a preliminary hearing is held the defendant must be accorded the right to counsel. By its holding today, however, the majority goes beyond Coleman and, in effect, creates a per se rule requiring a reversal and a new trial whenever an otherwise valid conviction is preceded by a preindictment preliminary hearing held in the absence of counsel. This position misperceives the dictates of Coleman v Alabama (supra), which requires corrective action only where the denial of counsel at a preindictment hearing results in some prejudice to the defendant. Here, the defendant has failed to assert, let alone establish, the existence of any prejudice arising from the conduct of the preliminary hearing. Hence I would conclude that the failure of the hearing court to adjourn until defendant could appear with counsel was, in the circumstances of this case, mere harmless error and, accordingly, would affirm the order of the Appellate Division upholding defendant’s conviction.

In Coleman, the Supreme Court held that a preindictment preliminary hearing is a “critical stage” of the criminal process at which the accused has a constitutional right to the assistance of counsel. In reaching this result, the court observed that there are several things which may., be accomplished by counsel at the preliminary hearing. Specifically, the court stated that (at p 9): “First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnessses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail”. Several of these interests may be present in virtually every case. Nevertheless, despite the fact that some of these interests were no doubt abstractly present in the Coleman case, the Supreme Court remanded to the Alabama State courts to determine if the failure to provide counsel at the hearing was mere harmless error. Thus, it is evident that there is no per se rule requiring a new trial when a defendant has been deprived "of counsel at a preliminary hearing. In the present case, however, the majority effectively creates such a rule.

The majority rests its determination that a new trial is necessary primarily on the rationale that defendant was deprived of the opportunity for discovery at the preliminary hearing by the absence of counsel. The preliminary hearing is designed to determine whether there is sufficient evidence to warrant the court in holding him for the action of a Grand Jury (CPL 180.10) and, contrary to the suggestion of the majority, is not a virtual minitrial, since the People need only produce a modicum of evidence sufficient to demonstrate reasonable cause to believe that the defendant committed a felony (CPL 180.60, subd 8). Indeed, the notion that the preliminary hearing is designed to function as a discovery tool is obviated by the fact that the preliminary hearing may be dispensed with entirely if the defendant is first indicted (People ex rel. Hirschberg v Close, supra), and, indeed, even during the pendency of a hearing. As a practical matter, however, observant counsel may gain some discovery advantage from the conduct of the preliminary hearing and, in addition, the Supreme Court has identified the discovery interest as one of the reasons for the right to counsel at the preliminary hearing stage (Coleman v Alabama, 399 US 1, 9, supra). Therefore, if the defendant is in some way prejudiced at trial by the absence of counsel at the preliminary hearing in regard to some discovery interest, a new trial may in fact be warranted. In the present case, however, the defendant does not even mention that he was deprived of any meaningful opportunity for discovery at the preliminary hearing. In fact, defendant merely asserts that counsel is important at a preliminary hearing because it permits defense counsel to observe the demeanor of his client as a witness. Thus, the majority requires that a new trial be held in this case even though defendant has asserted no significant prejudice arising out of the preliminary hearing. Since only defense counsel is in a position to comment on how he may have altered his trial strategy had he been given a meaningful opportunity for discovery at a preliminary hearing, to hold that the failure to provide defendant with this opportunity for discovery resulted in some prejudice, absent some allegations by defendant to this effect, requires an exercise of judicial speculation and, in effect, creates a per se rule requiring a new trial whenever a criminal defendant has been derprived of counsel at a preliminary hearing. Because I believe that the absence of any prejudice on this record indicates that the conduct of the hearing in the absence of counsel was mere harmless error, I must respectfully dissent.

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

Order modified and case remitted to Schenectady County Court for a new trial in accordance with the opinion herein and, as so modified, affirmed.

       In point of fact, the Criminal Procedure Law provides to the contrary. CPL 180.10 (subd 3), expressly states that a defendant has an absolute right to counsel at the hearing and subdivision 4 enjoins the court to “accord the defendant opportunity to exercise such rights and must itself take such affirmative action as is necessary to effectuate them.”

      . The defendant, already incarcerated on an unrelated charge, could not have secured release at the preliminary .hearing. In addition, inasmuch as defendant was subsequently indicted, it is clear that there was reasonable cause to believe that defendant had committed a felony and a preliminary hearing would not have resulted in the early screening of unjustifiable charges (see People ex rel. Hirschberg v Close, 1 NY2d 258, supra).

      . We would also note that a defendant’s power to subpoena witnesses is not so broad as the majority would suggest. CPL 180.60 (subd 7) merely provides that “[u]pon request of the defendant, the court may, as a matter of discretion, permit him to call and examine other witnesses or to produce other evidence in his behalf”.


source: Caselaw Access Project

author: Jasen, J. Chief Judge Cooke

license: Public Domain

text:
    Robin Akins, Respondent, v Glens Falls City School District, Appellant.
    Argued May 7, 1981;
    decided June 18, 1981

      POINTS OF COUNSEL

      Peter D. FitzGerald for appellant.
    I. The court erred in charging that the owner of a baseball field owed a general duty of care to a spectator. II. The court erred in refusing to charge that the owner of a baseball field owed no duty to a spectator to provide screening along third base line if it provided screened seating behind home plate. (Zeitz v Cooperstown Baseball Centennial, 31 Misc 2d 142; Baker v Topping, 15 AD2d 193; Donohue v Copiague Union Free School Dist., 64 AD2d 29, 47 NY2d 440; O’Bryan v O’Connor, 59 AD2d 219; Kozera v Town of Hamburg, 40 AD2d 934.) III. The trial court erred in refusing to charge assumption of risk. (Ingersoll v Onondaga Hockey Club, 245 App Div 137; Murphy v Steeplechase Amusement Co., 250 NY 479; Baker v Topping, 15 AD2d 193.) IV. Assumption of risk in a spectator case even after the adoption of comparative negligence survives as an absolute defense. V. The trial court erred in allowing proof of the cost and feasibility of erecting a higher fence along third base line. VI. The court erred in submitting this case to the jury. (Basso v Miller, 40 NY2d 233.)

      Robert S. Stewart for respondent.
    I. Defendant-appellant owed and breached a duty of reasonable care to plaintiff-respondent. (Basso v Miller, 40 NY2d 233; Barker v Parnossa, Inc., 39 NY2d 926; Parish v Henneberry Rd. Farms, 39 NY2d 932; Scurti v City of New York, 40 NY2d 433; Londa v Dougay Estates, 40 NY2d 1001; Quinlan v Cecchini, 41 NY2d 686; Naughton v Sheehan, 56 AD2d 839; Zaepfel v City of Yonkers, 56 AD2d 867; Metcalf v City of Cortland, 56 AD2d 959; Darminio v Sposato, 57 AD2d 883.) II. Assumption of risk has never existed as a separate and distinct affirmative defense. (Tiller v Atlantic Coast Line R. R. Co., 318 US 54.) III. The doctrine of reasonable assumption of risk was abolished by CPLR article 14-A. IV. Defendant failed to prove culpable conduct of plaintiff.
   OPINION OF THE COURT

Jasen, J.

On this appeal, we are called upon to define the scope of the duty owed by a proprietor of a baseball field to the spectators attending its games. The specific question presented is whether such an owner, having provided protective screening for the area behind home plate, is liable in negligence for the injuries sustained by a spectator as a result of being struck by a foul ball while standing in an unscreened section of the field. This case does not involve the “culpable conduct” (CPLR 1411) — be it assumption of risk or contributory negligence — of a spectator injured in the course of a baseball game.

In the early afternoon of April 14, 1976, plaintiff attended a high school baseball game that was being played on a field owned and maintained by defendant Glens Falls City School District. The field was equipped with a backstop 24 feet high and 50 feet wide. This backstop was located 60 feet behind home plate and was positioned in front of bleachers that could seat approximately 120 adults. There was additional standing room behind the backstop as well. Two chain link fences, three feet in height, ran from each end of the backstop along the base lines to a distance approximately 60 feet behind first and third base.

Plaintiff arrived while the game was in progress and elected to view the contest from a position behind the three-foot fence along the third base line, approximately 10 to 15 feet from the end of the backstop and 60 feet from home plate. As there were no seating facilities for spectators along the base lines, plaintiff had to stand in order to watch the game. At the time, other spectators were also standing along the base lines behind the three-foot fence. There was, however, no proof that the screened bleachers behind home plate were filled or that plaintiff was prevented from watching the game from behind the backstop. Approximately 10 minutes after arriving at the baseball field, plaintiff was struck in the eye by a sharply hit foul ball, causing her serious and permanent injury.

The present action was then commenced by the plaintiff against the defendant school district. Alleging that the school district was negligent in failing to provide safe and proper screening devices along the base lines of its field, plaintiff sought judgment against the school district in the sum of $250,000. After trial, the jury returned a verdict in plaintiff’s favor, assessing damages in the amount of $100,000 and apportioning fault at 65% to the school district and 35% to plaintiff.

On appeal, a divided Appellate Division affirmed the judgment rendered in plaintiff’s favor, one Justice concurring in result and two Justices dissenting. The majority held that there was no error of law which warranted disturbing the jury’s verdict. The dissenters were of the view that, as a matter of law, there was no showing of any negligence on the school district’s part. According to the dissent, “ [h]aving adequately screened the area of its ball park behind home plate, the defendant fulfilled its duty to the plaintiff and cannot be held in negligence when she herself selected a position that was outside the area screened.” (75 AD2d, p 243.) We agree.

Cases involving the liability of an owner of a baseball field for the injuries sustained by those attending its games are not altogether foreign to the courts of this State. Indeed, the doctrine of assumption of risk has had extensive application in a number of cases involving spectators struck by misguided baseballs. (E.g., O’Bryan v O’Connor, 59 AD2d 219; Dillard v Little League Baseball, 55 AD2d 477; Kozera v Town of Hamburg, 40 AD2d 934; Barker v Topping, 15 AD2d 193; Zeitz v Cooperstown Baseball Centennial, 31 Misc 2d 142; cf. Cadieux v Board of Educ., 25 AD2d 579; Ingersoll v Onondaga Hockey Club, 245 App Div 137.) As was aptly summarized by Chief Judge Cardozo, the spectator at a sporting event, no less than the participant, “accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball * * * The timorous may stay at home.” (Murphy v Steeplechase Amusement Co., 250 NY 479, 482-483.) However, because these cases arose prior to the adoption of the comparative negligence rule in this State (CPLR 1411), application of the assumption of risk doctrine served as a complete bar to a plaintiff’s cause of action without regard to the degree of care exercised by the owner of the ball park. As a result, aside from two lower court decisions (Adonnino v Village of Mount Morris, 171 Misc 383; Blackball v Capital Dist. Baseball Assn., 154 Misc 640, affd 157 Misc 801), there is no case law in this State which defines the duty of care owed by a proprietor of a baseball field to its spectators. We now define that duty.

At the outset, it should be stated that an owner of a baseball field is not an insurer of the safety of its spectators. Rather, like any other owner or occupier of land, it is only under a duty to exercise “reasonable care under the circumstances” to prevent injury to those who come to watch the games played on its field. (Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433.) The perils of the game of baseball, however, are not so imminent that due care on the part of the owner requires that the entire playing field be screened. Indeed, many spectators prefer to sit where their view of the game is unobstructed by fences or protective netting and the proprietor of a ball park has a legitimate interest in catering to these desires. Thus, the critical question becomes what amount of screening must be provided by an owner of a baseball field before it will be found to have discharged its duty of care to its spectators.

Other jurisdictions addressing this question have adopted various standards in defining the duty of a ball park proprietor to protect its spectators from stray balls. Some courts have held that an owner merely has a duty to screen, such seats as are adequate to provide its spectators with an opportunity to sit in a protected area if they so desire. (E. g., Crane v Kansas City Baseball & Exhibition Co., 168 Mo App 301; McNiel v Fort Worth Baseball Club, 268 SW2d 244 [Tex].) Other courts have stated that a proprietor of a baseball field need only screen as many seats as may reasonably be expected to be applied for on an ordinary occasion by those desiring such protection. (Quinn v Recreation Park Assn., 3 Cal 2d 725; Leek v Tacoma Baseball Club, 38 Wn 2d 362.) Most courts, however, have adopted a two-prong standard in defining the scope of an owner’s duty to provide protective screening for its patrons. Under the majority rule, the owner must screen the most dangerous section of the field — the area behind home plate— and the screening that is provided must be sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion. (E.g., Maytnier v Rush, 80 Ill App 2d 336; Brisson v Minneapolis Baseball & Athletic Assn., 185 Minn 507; Erickson v Lexington Baseball Club, 233 NC 627; see, generally, Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured As Result of Other Hazards of Game, Ann., 91 ALR3d 24.) We believe this to be the better rule and adopt this definition of the duty owed by an owner of a baseball field to provide protective screening for its spectators.

We hold that, in the exercise of reasonable care, the proprietor of a ball park need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest. Moreover, such screening must be of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game. In so holding, we merely recognize the practical realities of this sporting event. As mentioned earlier, many spectators attending such exhibitions desire to watch the contest taking place on the playing field without having their view obstructed or obscured by a fence or a protective net. In ministering to these desires, while at the same time providing adequate protection in the most dangerous area of the field for those spectators who wish to avail themselves of it, a proprietor fulfills its duty of reasonable care under such circumstances.

This is not to say that, by adequately screening the area of the field where the incidence of foul balls is the greatest, the risks inherent in viewing the game are completely eliminated. Rather, even after the exercise of reasonable care, some risk of being struck by a ball will continue to exist. Moreover, contrary to the supposition of the dissent, we do not attempt to prescribe precisely what, as a matter of law, are the required dimensions of a baseball field backstop. Nor do we suggest that where the adequacy of the screening in terms of protecting the area behind home plate properly is put in issue, the case should not be submitted to the jury. We merely hold that where a proprietor of a ball park furnishes screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest and that screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, the proprietor fulfills the duty of care imposed by law and, therefore, cannot be liable in negligence. Indeed, to adopt the view urged by the dissent would mean that every spectator injured by a foul ball, no matter where he is seated or standing in the ball park, would have an absolute right to go to the jury on every claim of negligence, regardless of the owner’s efforts to

provide reasonable protection and despite the spectator’s failure to utilize the protection made available.

In this case, it is undisputed that the school district equipped its field with a backstop which was 24 feet high and 50 feet wide. Plaintiff presented no evidence that this backstop was inadequate in terms of providing protection for the area behind home plate where there was a substantial likelihood of spectators being struck by misguided balls or that there was an insufficient number of screened seats for those who might reasonably be expected to desire such protection. Under these circumstances, having provided adequate protection for those spectators seated, or standing, in the area behind home plate, liability may not be imposed on the school district for failing to provide additional screening along the baselines of its field where the risk of being struck by a stray ball was considerably less. (Accord Cates v Cincinnati Exhibition Co., 215 NC 64; Curtis v Portland Baseball Club, 130 Ore 93; see, also, Leek v Tacoma Baseball Club, 38 Wn 2d 262, supra.)

As the dissent correctly notes, what constitutes reasonable care under the circumstances ordinarily is a question for the jury. This is not to say, however, that in every case involving a landowner’s liability in negligence the question whether reasonable care was exercised must be determined by the jury. As we have only recently stated, “before it becomes appropriate for the jury to consider * * * such questions, the court, as it would in the usual negligence action, must make the threshold determination as to whether the plaintiff, by introducing adequate evidence on each element, has made out a case sufficient in law to support a favorable jury verdict. Only in those cases where there arises a real question as to the landowner’s negligence should the jury be permitted to proceed. In all others, where proof of any essential element falls short, the case should go no further.” (Basso v Miller, 40 NY2d 233,241-242, supra; see, also, Quinlan v Cecchini, 41 NY2d 686, 689.)

In short, a court always is required to undertake an initial evaluation of the evidence to determine whether the plaintiff has established the elements necessary to a cause of action in negligence, to wit: (1) the existence of a duty on defendant’s part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof. (See Prosser, Torts [4th ed], § 30, p 143.) In this regard, this court, on more than one occasion, has held that a defendant fulfilled its duty of care notwithstanding a jury verdict to the contrary. (E.g., Pulka v Edelman, 40 NY2d 781; Jenks v McGranaghan, 30 NY2d 475 ; Kimbar v Estis, 1 NY2d 399; Thompson v Board of Educ., 280 NY 92; Peterson v City of New York, 267 NY 204; Maher.v Madison Sq. Garden Corp., 242 NY 506; see, also, Curcio v City of New York, 275 NY 20.) Similarly, on the record before us and the undisputed facts of this case, the school district fulfilled its duty of reasonable care to plaintiff as a matter of law and, therefore, no question of negligence remained for the jury’s consideration.

Finally, in view of our holding, we need not reach and, therefore, do not consider the correctness of the trial court’s charge to the jury with respect to the applicability of the doctrine of assumption of risk under this State’s comparative negligence statute. (See CPLR 1411.)

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

Chief Judge Cooke

(dissenting). The majority today engages in an unfortunate exercise in judicial rule making in an area that should be left to the jury. This attempt to precisely prescribe what steps the proprietor of a baseball field must take to fulfill its duty of reasonable care is unwarranted and unwise. Furthermore, the provision of CPLR 1411, providing that contributory negligence or assumption of the risk “shall not bar recovery”, should not be disregarded. I therefore dissent and vote to affirm.

As the majority recognizes, the proprietor of a baseball field owes the same duty to spectators that any landowner owes to a person who comes onto the owner’s property— “reasonable care under the circumstances” (Basso v Miller, 40 NY2d 233, 241; see, also, Scurti v City of New York, 40 NY2d 433). This duty requires that the landowner “must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Basso v Miller, 40 NY2d 233, 241, supra, quoting Smith v Arbaugh’s Rest, 469 F2d 97, 100).

The majority errs, however, in deciding as a matter of law exactly what steps by a baseball field proprietor will constitute reasonable care under the circumstances. Such a determination, by its very dependence upon the “circumstances”, hinges upon the facts of the individual situation and should be left for the jury. Indeed, those exceptions to this rule that have been made by courts occur only in those narrow classes of cases where an identical set of facts is likely to recur with regularity, and “[s]uch holdings today are rare” (2 Harper and James, Torts, p 977).

This court has made clear that “[w]hat safety precautions may reasonably be required of a landowner is almost always a question of fact for the jury” (Nallan v Helmsley Spear, Inc., 50 NY2d 507, 520, n 8; see, also, Scurti v City of New York, 40 NY2d 433, 445, supra). Indeed, well before Basso extended the landowner’s duty of reasonable care to all categories of persons who come onto the property, it was well established that “the municipality which extends to its citizens an invitation to enter and use recreational areas owes to those accepting that invitation a duty of reasonable and ordinary care against foreseeable dangers. What degree of care is reasonable necessarily depends upon the attendant circumstances and is a jury question” (Caldwell v Village of Is. Park, 304 NY 268, 274; see, also, Sadowski v Long Is. R. R. Co., 292 NY 448, 455-456). This is not to say that every case of alleged negligence by the proprietor of a baseball field must go to the jury. But it is just as unreasonable to declare with such absolutism that, outside narrow and artificial limits, no such case can go to the jury.

The majority has in effect undertaken the task of prescribing the size, shape and location of backstops and other protective devices that will satisfy a baseball field owner’s duty of reasonable care under-the circumstances. This attempt to impose a straight jacket upon the relationship between a baseball field proprietor and spectators, regardless of the particular circumstances, is arbitrary and unrealistic. It is reminiscent of the Supreme Court’s attempt in the early years of the automobile, to impose upon the operator the duty of leaving the vehicle and examining each railroad grade crossing on foot, if necessary for a better view of the tracks (Baltimore & Ohio R. R. v Goodman, 275 US 86 [per Holmes, J.]). This standard enjoyed little favor among State courts, engendered confusion among lower Federal courts attempting to apply it and was quickly repudiated by the Supreme Court (Pokora v Wabash Ry. Co., 292 US 98).

In Pokora, Justice Cardozo noted that the problems springing from the grade-crossing rule emphasized “the need for caution in framing standards of behavior that amount to rules of law” (id., at p 105). Indeed, railroad crossing cases provide a good example of this court’s reluctance to impose blanket rules of conduct divorced from actual events. More than a century ago, this court stated that “[i]t is a general rule that care commensurate with the danger must be exercised, and it is also a general rule that it is the province of the jury, and not of the court, to determine whether such care has been exercised” (Dolan v Delaware & Hudson Canal Co., 71 NY 285, 288; see, also, Beisiegel v New York Cent. R. R. Co., 34 NY 622, 625-626). The court has expressed this reluctance to take negligence questions from the jury in a variety of other contexts, as well (see, e.g., Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; Loughran v City of New York, 298 NY 320, 322; Foltis, Inc. v City of New York, 287 NY 108,122; Salomone v Yellow Taxi Cab Corp., 242 NY 251, 259; Sheridan v Brooklyn & Newtown R. R. Co., 36 NY 39, 43).

The wisdom of eschewing such blanket rules where negligence is concerned is obvious. In the present context, the majority has held as a matter of law that the proprietor of the baseball field fulfilled his duty of reasonable care by erecting a backstop that was 24 feet high and 50 feet wide. The court issues this rule with no more expertise available to it than Justice Holmes had in 1927 when he recommended that motorists venture on foot onto railroad grade crossings for a better view. It has selected one of a variety of forms of protection currently in use at professional ballparks and school playgrounds — what in reality is nothing more than a straight, high fence behind home plate — and has designated it as sufficient protection as a matter of law.

Such a ruling robs the jury of its ability to pass on whether the circumstances here might have made this type of backstop inadequate. In the present case, the majority has taken from the jury its ability to consider the following evidence: that the cost of placing “wings” on the backstop extending to first and third base would have been only $209 when the backstop was built; that other baseball diamonds do have such wings; that the type of game being played at the field was not a softball game between young tykes but rather a varsity high school hardball game involving players such as the batter in this incident, who was six-foot two-inches tall, weighed 190 pounds and was advanced enough in ability to later play professional ball; that school authorities were aware that line drives “frequently” went over the low fence that ran along the base lines, and that there were no signs or other warnings of the dangers of standing behind this fence. Because of public familiarity with the “national pastime”, no expert testimony would generally be required to make out a showing of failure to exercise due care in such a case (see Meiselman v Crown Hgts. Hosp., 285 NY 389, 396). In this case, however, the jury even had before it the testimony of a civil engineer as to the feasibility and minimal cost of ensuring greater safety for spectators. This makes an even stronger argument for sending this case to the jury.

The court’s ruling will also foreclose juries in the future from considering the wide range of circumstances of individual cases, as well as new developments in safety devices or procedures. Unless the court plans to periodically take up such cases in the future to adjust its rule, it has frozen a position that is certain to become outdated, if it is not already. It would make as much sense for the court to decree, as a matter of law, what sort of batting helmet or catcher’s mask a school district should supply to its baseball team. Baseball may be a sport steeped in tradition, but it is hardly immune from technological change and shifts in public perception of what constitute reasonable safety measures. It has traditionally been the jury that reflects these shifts and changes.

Finally, a few words concerning the doctrines of assumption of the risk and contributory negligence are in order. As the majority notes, in the past these doctrines generally provided the basis for denying recovery when a spectator who willingly stood or sat in an unprotected area was injured by a baseball. When the Legislature enacted comparative negligence (L 1975, ch 69), it abolished those doctrines as total bars to a plaintiff’s recovery. Now (and at the time of this incident), assumption of the risk and contributory negligence are denominated “culpable conduct” and serve only to proportionately diminish a plaintiff’s recovery (CPLR 1411; see Memoranda of Judicial Conference, NY Legis Ann, 1975, pp 23, 24). Yet the majority, although it speaks in terms of the defendant’s duty of reasonable care, has effectively resurrected those doctrines as total bars to recovery. By holding as a matter of law that the defendant’s duty of reasonable care extends only to the construction of a backstop of specific proportions, the majority forecloses a jury from considering any other factors that might be present in an individual case. This rule of law denies recovery to injured spectators as effectively as the old doctrines of assumption of the risk and contributory negligence ever did, and uses a fundamentally similar rationale to do so.

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

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

Order reversed, etc.

       The dissent acknowledges that not “every ease of alleged negligence by the proprietor of a baseball field must go to the jury.” (At p 334 [Cooke, Ch. J., dissenting].) However, no guidance whatsoever is offered for determining which cases should be decided by the court as a matter of law and which should be submitted to the jury.


author: Meyer, J.

text:
    The People of the State of New York, Appellant, v James Thomas, Also Known as Willie Thomas, Respondent.
    Argued May 7, 1981;
    decided July 6, 1981

      POINTS OF COUNSEL

      Eugene Gold, District Attorney (Michael J. Halberstam of counsel), for appellant.
    I. The court below erred in finding that it did not have the authority to decide this case based upon the record made below. This court should promulgate a rule permitting the practice of conditional guilty pleas as the basis for an appeal where there are no facts in dispute. (United States v Zudick, 523 F2d 848; United States v D’Amato, 436 F2d 52; United States v Moskow, 588 F2d 882.) II. The factual recital, at plea, was legally sufficient to support a conviction for reckless endangerment in the first degree. (People v Montanez, 41 NY2d 53; People v France, 57 AD2d 432; People v Poplis, 30 NY2d 85; People v Kibbe, 35 NY2d 407, affd sub nom.

      Henderson v Kibbe, 431 US 145; People v Fountain, 44 AD2d 685.) III. Since the issue of the unconstitutionality of the statutory weapons presumption, as applied to this case, was not preserved for review by the conditional plea, such issue did not survive the plea. If the court chooses to reach the issue, however, the presumption is clearly contitutional as applied to the facts. (People v Bogatin, 48 AD2d 674; People v Giuliano, 52 AD2d 240; People v Lemmons, 40 NY2d 505.)

      Barry Gene Rhodes for respondent.
    I. The procedural device of the conditional plea, whereby, with the consent of the prosecution and the approval of the trial court, defendant pleads guilty but preserves specified issues for appellate review, should be given effect. (People v Whidden, 51 NY2d 457; People v Brothers, 50 NY2d 413; Jaben v United States, 381 US 214; Haynes v United States, 390 US 85; Lefkowitz v Newsome, 420 US 283; United States v Moskow, 588 F2d 882; United States v Zudick, 523 F2d 848; United States v Burke, 517 F2d 377; United States v Rothberg, 480 F2d 534, 414 US 856 ; United States v Selby, 476 F2d 965.) II. The evidence was insufficient, as a matter of law, to prove reckless endangerment in the first degree. (People v France, 57 AD2d 432; People v Fountain, 44 AD2d 685; People v Dwight S., 33 AD2d 1032, 29 NY2d 172.) III. The issue of the unconstitutionality of the statutory weapons presumtipon as applied to this case was preserved for review by the conditional plea. This court should reach the issue and strike down the statute as unconstitutional as applied to the facts. (Ulster County Ct. v Allen, 442 US 140; Leary v United States, 395 US 6.)
   OPINION OF THE COURT

Meyer, J.

The legal sufficiency of a conceded set of facts to support a judgment of conviction entered upon a guilty plea may not be saved for appellate review by conditioning the plea on defendant’s right to appeal that issue, even though the prosecutor consents to, and the Trial Judge approves, the entry of such a conditional plea. Because defendant’s pleas were conditioned upon the power of the prosecutor to consent and the court to approve such a plea and provided for vacatur of the pleas if it was held that there was no such power, we affirm the order of the Appellate Division vacating defendant’s pleas and remitting the matter for further proceedings on the indictment.

Defendant was indicted for reckless endangerment in the first degree, reckless driving and criminal possession of a weapon in the third and fourth degrees. The charges arose out of a high speed automobile chase through a residential neighborhood in Brooklyn at about 2:30 A.M. Defendant was the driver and owner of the vehicle. After the car was stopped it was found to contain two concealed handguns.

Pursuant to a court approved agreement with the prosecutor, defendant pleaded guilty to the reckless endangerment and weapons counts in the indictment. As part of that agreement, two issues were to survive the plea for appellate review. The first concerned whether the speed of the automobile and the circumstances surrounding the chase were sufficient to constitute the “depraved indifference to human life,” “recklessness,” and “grave risk of death to another person” that are required for conviction of first degree reckless endangerment (Penal Law, § 120.25). The second was the constitutionality of the so-called gun presumption statute (Penal Law, § 265.15,. subd 3) as applied to defendant’s situation.

The record upon which the appellate court was to rule upon these issues was provided by defendant’s allocution. In separate and detailed written statements which he read before the court, defendant admitted facts relative to both the reckless endangerment and the weapons charges. In the first statement, defendant declared that in the course of a 25-block pursuit by a police car his maximum speed was approximately 60 miles per hour and he drove through five red lights before his vehicle came to a halt on the sidewalk after jumping the curb. He stated also that there was some vehicular traffic on the street at the time, that he passed at least four moving cars and a number of parked cars, that there were both private houses and apartments on the streets over which he passed and in some the lights were on, and that he saw no pedestrians on the street. Concerning the weapons charges, defendant admitted that there were two weapons in the car: a loaded .38 caliber revolver and an unloaded .25 caliber automatic pistol, that both were hidden beneath the rear seat, that he owned both and knew of their location as he drove the vehicle. In the car during the chase were two other persons, one seated next to him on the front seat and the second seated behind him in the rear seat.

On appeal to the Appellate Division that court, despite the urging of both the defendant and the prosecutor, refused to consider the merits of the two issues thus sought to be presented to it. It characterized the hearing of appeals on the basis of such a negotiated conditional plea as “incompatible with principles of the sound administration of justice” (74 AD2d 317, 325). It reasoned that the review of a legal issue concerning factual guilt, which by their agreement the parties sought to save, was logicially inconsistent with the principle that a plea of guilty is an admission of factual guilt and that the limited record provided by the allocution on the weapons count was an inadequate basis from which to determine the constitutionality of the gun presumption statute as applied to defendant’s dominion and control over the weapons behind him under the rear seat. Pursuant to leave granted by a Judge of this court, the question whether a conditional plea such as here attempted is permissible is the issue for our decision.

The policy questions thus presented involve forfeiture of the right to appellate review, as distinct from preservation or express waiver. The arguments usually advanced for permitting conditional guilty pleas are that doing so conserves judicial resources by making unnecessary a full trial, precludes the use of guilty pleas as a denigration of defendant’s rights under the exclusionary rule, and facilitates plea bargaining (Bond, Plea Bargaining and Guilty Pleas, § 7.22 [3]; 1 Wright,- Federal Practice & Procedure, § 175, pp 381-382; Comment, Conditioned Guilty Pleas: Post-Guilty Plea Appeal of Non jurisdictional Issues, 26 UCLA L Rev 360; Notes, 93 Harv L Rev 564; 9 Houston L Rev 305). The arguments to the contrary are that allowing such pleas will result in a flood of appellate cases, compromise the finality of the plea of guilty, create in the public generally a disrespect for the law by permitting a defendant to avoid admitted factual guilt, and circumvent the rule that constitutional issues are not decided unless essential to conclusion of the particular case, as well as the harmless error rule (State v Crosby, 338 So 2d 584 [La]; Bond, op. cit, § 7.22 [4]; Comment, Conditioned Guilty Pleas, 26 UCLA L Rev 360; Notes, 93 Harv L Rev 564; 9 Houston L Rev 305).

While standard-setting agencies and commentators have approved the conditional plea device for general application, State and Federal courts are about evenly divided on the acceptability of such pleas. Where permitted, however, most such pleas involve the reservation of search and seizure issues (Comment, Conditioned Guilty Pleas: Post-Guilty Plea Appeal of Non jurisdictional Issues, 26 UCLA L Rev 360, 375), as to which our Legislature has expressly provided, in CPL 710.70 (subd 2), that denial of “a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.”

Because the major ameliorative purpose of the conditional plea device has, thus, already been achieved in this State, and because the issues sought to be saved for review by the plea in the instant case concern only the sufficiency of conceded facts to support a judgment of conviction entered upon a plea of guilty, we do not find it necessary to enter into an extended analysis of the competing policy considerations with respect to all of the possible issues that could be the subject of a conditional plea. Rather, we limit our discussion to the particular issues sought to be preserved for review in the instant case and leave for another day consideration of other permutations of the problem.

On the limited question before us, we agree with the Appellate Division that as a matter of policy the plea must be vacated and the matter remitted to the trial court for further proceedings. We do so because of the logical inconsistency involved in permitting a defendant to enter a plea of guilty and, at the same time, with the consent of the prosecutor and the approval of the court, obtain appellate review of the legal sufficiency of evidence that would hypothetically have been adduced at trial to support conviction of the crime thus admitted. As we noted in People v Lynn (28 NY2d 196, 201), “A plea of guilty ‘is more than a confession which admits that the accused did various acts; it is itself a conviction [and] nothing [else] remains but to give judgment and determine punishment’ (Boykin v Alabama, 395 U. S. 238, 242).” Indeed, to save by agreement for appellate review an insufficient evidence claim following a plea of guilty would turn the “solemn act” of pleading guilty (see Toilet v Henderson, 411 US 258, 267) into a mere device for maintaining innocence while avoiding trial.

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

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

Order affirmed.

      . Absent the People’s consent and the court’s approval, appellate review would be foreclosed by our holding in People v Mack (53 NY2d 803, 806) that “A defendant cannot by a unilateral recital of an intention or desire to preserve a legal contention evade what would otherwise be the consequences of his guilty plea.”

      . Preservation concerns whether an issue has been properly brought to the attention of the Trial Judge and opposing attorneys (cf. People v Michael, 48 NY2d 1, 5, n 1). Forfeiture occurs by operation of law as a consequence of a guilty plea, with respect to issues which as a matter of policy the law does not permit to survive such a plea. Express waiver results from “an intentional relinquishment or abandonment of a known right or privilege” (Johnson v Zerbst, 304 US 458, 464). As to a conditional plea, the consent of the court and the agreement of opposing counsel obviate any question of preservation, and express waiver is irrelevant since defendant has, by obtaining consent of the court and agreement of opposing counsel, expressly sought to reserve the issue.

      . Both the Commissioners on Uniform Laws (Uniform Rules of Criminal Procedure, rule 444, subd [d] [10 ULA (Master Ed) 204-205]) and the American Bar Association’s Standards Relating to Criminal Appeals (§ 1.3, subd [a], par [iii]) approve conditional pleas. (See, also, Note, Conditional Guilty Pleas, 93 Harv L Rev 564; Pitler, New York Criminal Practice, §9.11 [1979 Supp], p 243); Bond, Plea Bargaining and Guilty Pleas, § 7.22 [2]; 3 La Fave, Search & Seizure, § 11.1, subd [d].)

      . Decisions approving have been rendered in the following State courts: Nickels v State (545 P2d 163 [Alaska] [nolo contendere plea]) ; State v Ashby (245 So 2d 225 [Fla] [as to nolo contendere pleas only]); State v Hutchison (349 So 2d 1252 [La]). The following State courts have disapproved: State v Arnsberg (27 Ariz App 205); State v Dorr (184 NW2d 673 [Iowa]); Killebrew v State (464 SW2d 838 [Tex]). In the Federal courts conditional pleas have been approved in the Second and Third Circuits: United States v Doyle (348 F2d 715 [2d Cir], cert den 382 US 843); United States v Rothberg (480 F2d 534 [2d Cir], cert den 414 US 856) ; United States v Burke (517 F2d 377 [2d Cir]); United States v Zudick (523 F2d 848 [3d Cir]); United States v D’Amato (436 F2d 52 [3d Cir]); United States v Moskow (588 F2d 882 [3d Cir]). But the Fifth, Sixth, Seventh and Ninth Circuits have disapproved such pleas: United States v Sepe (486 F2d 1044 [5th Cir]); United States v Cox
        (464 F2d 937 [6th Cir]) ; United States v Brown (499 F2d 829 [7th Cir], cert den 419 US 1047) ; United States v Benson (579 F2d 508 [9th Cir] ; see also, Note, Conditional Guilty Pleas, 93 Harv L Rev 564, 565-566, ns 9, 10, 11).

      . Similar statutes exist in California (Cal Penal Code, §§ 1237.5, 1538.5), Florida (Fla Stat Ann, § 924.06, subd [3]) and Wisconsin (Wis Stat Ann, §971.31, subd [10]).


text:
    Juanita Werner, Individually and as Administratrix of the Estate of Ronald Werner, Deceased, Appellant, v State of New York et al., Respondents.
    (Claim No. 57226.)
    Argued June 1, 1981;
    decided July 6, 1981

      POINTS OF COUNSEL

      Eugene C. Tenney for appellant.
    I. There is no election of remedies in this case since there are two separate causes of action, one in negligence, one in intentional tort. (Jones v State of New York, 33 NY2d 275; Matter of Martin v C. A. Prods. Co., 8 NY2d 226; Metropolitan Life Ins. Co. v Childs Co., 230 NY 285.) II. There was no conscious intent by claimant to elect workers’ compensation and waive her cause of action for intentional tort. (Matter of Tate v Estate of Dickens, 276 App Div 94.) III. Summary judgment should not be granted during the trial of claimant’s case before claimant has rested.

      Robert Abrams, Attorney-General (Peter J. Dooley and Shirley Adelson Siegel of counsel), for respondent.
    I. The claim fails to state a cause of action for intentional assault against the employer, the State of New York. (O’Rourke v Long, 41 NY2d 219; Estupinan v Cleanerama Drive-In Cleaners, 38 AD2d 353; Artonio v Hirsch, 3 AD2d 939; Santiago v Brill Monfort Co., 11 AD2d 1041,10 NY2d 718; Finch v Swingly, 42 AD2d 1035; Ross v State of New York, 8 AD2d 902; Walstein v Blank, 35 Misc 2d 1015; Murray v City of New York, 43 NY2d 400; Velasquez v Pine Grove Resort Ranch, 61 AD2d 1102.) II. The assault exception from the exclusivity of compensation is lost once claimant has filed for and accepted compensation. (Matter of Martin v C. A. Prods. Co., 8 NY2d 226; Meaney v Keating, 200 Misc 308, 279 App Div 1030, 305 NY 660; Moakler v Blanco, 47 AD2d 614; Schmidt v Carrara, 11 AD2d 788; Durso v Modern Biscuit Corp., 11 AD2d 1036; Legault v Brown, 283 App Div 303.) III. Once the Workers’ Compensation Board has exercised its jurisdiction over a claim, the courts are precluded from entertaining any complaint asserting a civil cause of action for the same injury unless and until the determination of the compensation board has been vacated on direct judicial review. (Matter of Doca v Federal Stevedoring Co., 308 NY 44; Friedl v Hennard, 66 AD2d 1024.) IV. Whether the matter be considered election of remedies, duplication of recovery, res judicata, or exclusive jurisdiction, this action cannot be maintained. (Jones v State of New York, 33 NY2d 275.)
   OPINION OF THE COURT

Meyer, J.

A claimant who applies for, is awarded and accepts workers’ compensation death benefits is barred by the exclusive remedy and finality provisions of the Workers’ Compensation Law from maintaining a wrongful death action against the deceased worker’s former employer for intentional assault. The order of the Appellate Division granting the State’s motion for summary judgment dismissing the complaint should, therefore, be affirmed.

Ronald Werner was employed as a guard at the Attica Correctional Facility. Taken hostage at the beginning of the prisoner insurrection now generally referred to as the Attica uprising, Werner was killed by a gun shot wound to the chest during the September 13, 1971 retaking of the prison by State troopers and correction officers. On October 1, 1971 his widow, Juanita, filed a claim for compensation on behalf of herself and her three daughters with the Workers’ Compensation Board, and on February 8,1972 she was notified that at a hearing held January 26, 1972 an award had been made requiring payment of funeral expenses and a weekly stipend commencing September 13, 1971. It is not disputed that the compensation payments were received and accepted by Juanita Werner on behalf of herself and her children until she remarried, that upon her remarriage she received a remarriage award at the expiration of which the payments for the benefit of the children were increased, and that the latter payments continued thereafter. Claimant’s brief states that she was advised by State officials that benefits under the Workers’ Compensation Law were her exclusive remedy, but there is nothing in the record to support the statement.

Whatever be the fact with respect to the filing of the compensation claim, claimant concedes in her brief that in December, 1971, after conferring with an attorney, she filed a notice of intention to file claim against the State and on December 23, 1972 filed her notice of claim against the State and certain State employees with the Court of Claims. Two claims were stated: the first for the negligent failure to warn Ronald Werner of the impending riot and to protect him against imprisonment and physical injury by the rioting inmates during the period September 9, 1971 through September 13,1971; the second for his death which it was alleged occurred when “a State Police Officer * * * while acting in the course of his employment by the State and for the purpose of forwarding the State’s interest, without just cause or provocation and with great force and violence, wilfully and intentionally assaulted and battered the Claimant’s decedent by firing several shots of a gun at Claimant’s decedent, one or more of which shot and struck him in the head, chest and back, thereby causing his death.”

The State moved to dismiss as to the individual defendants for lack of Court of Claims jurisdiction and as to the claims against the State for failure to state a cause of action and because claimant having received compensation payments had elected her remedy. As to the individual defendants the motion was granted; as to the State it was granted as to the claim based on negligence but otherwise denied. The State appealed but that appeal has never been perfected. Thereafter, the State moved for summary judgment on the basis of claimant’s continued receipt of compensation benefits. The Court of Claims denied that motion on the basis of our decision in Jones v State of New York (33 NY2d 275), but on appeal the Appellate Division, Fourth Department, by a divided court, reversed and granted summary judgment dismissing the claim. The Appellate Division majority distinguished the Jones decision, which involved a claim on behalf of the dependents of another deceased Attica hostage identical in language to that quoted above, on the ground that in Jones claimant had neither applied for nor accepted compensation benefits. From the Appellate Division’s order claimant appeals. We affirm.

Claimant presents the threshold argument that trial of the action in the Court of Claims having begun, the court should not have entertained and the Appellate Division could not grant a motion for summary judgment. We perceive no abuse of discretion in the courts below having entertained the motion, which if granted would dispose of the action. The State urges us to dismiss the intentional assault claim on the ground that it fails to state a cause of action, because it does not plead the nonexclusivity of compensation (see O’Rourke v Long, 41 NY2d 219; Murray v

City of New York, 43 NY2d 400, 407) and does not allege a deliberate purpose on the part of the State to cause Werner’s death (as distinct from responsibility of the State on the basis of respondeat superior for the reckless acts of its employees; see Finch v Swingly, 42 AD2d 1035; Estupinan v Cleanerama Drive-In Cleaners, 38 AD2d 353; 2A Larson, Workmen’s Compensation, § 68.21, p 13-11). Neither contention is properly before us on this appeal, however. The sufficiency of the complaint was in issue on the .State’s first motion under CPLR 3211 to dismiss the complaint, but is not a ground of the motion which is the subject of the present appeal. The State appealed the denial of that first motion to the Appellate Division but never perfected the appeal. The subject of the present appeal is the State’s motion, made some time after denial of its first motion, which seeks summary judgment pursuant to CPLR 3212 and does not address the sufficiency of the complaint.

We come, then, to the primary issue on this appeal: whether acceptance of compensation benefits forecloses the action against the State for intentional assault held permissible in Jones v State of New York (33 NY2d 275, supra). Section 11 of the Workers’ Compensation Law provides that “The liability of an employer * * * shall be exclusive and in place of any other liability whatsoever, to such employee, his personal representatives, spouse, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death,” and section 8 of the Court of Claims Act “is careful to provide that, in waiving immunity, the exclusiveness of the compensation remedy against the State is not impaired” (Maloney v State of New York, 3 NY2d 356, 361). Furthermore, section 29 of the Workers’ Compensation Law, which makes clear that by accepting compensation benefits an injured employee or his dependents does not foreclose action against a tortfeasor not “in the same employ”, expressly provides in subdivision 6 that “The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of his death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ.” Finally, section 23 of the Workers’ Compensation Law provides that “An award or decision of the board shall be final and conclusive upon all questions within its jurisdiction, as against the state fund or between the parties, unless reversed or modified on appeal therefrom as hereinafter provided.”

The combination of those provisions requires affirmance of the Appellate Division’s order. Had claimant not chosen to accept benefits, she would under our decision in Jones v State of New York (supra), have been free to maintain her wrongful death action for intentional assault. In that action she would have faced a heavy burden of proof in attempting to establish the use of excessive force by the State (id., 33 NY2d, at p 280) and may perhaps have been defeated by findings that the excessive force resulted from reckless rather than deliberate acts (see Finch v Swingly, 42 AD2d 1035, supra; Estupinan v Cleanerama Drive-In Cleaners, 38 AD2d 353, supra; Santiago v Brill Monfort Co., 11 AD2d 1041, affd 10 NY2d 718; Artonio v Hirsch, 3 AD2d 939; Walstein v Blank, 35 Misc 2d 1015). To the contrary, however, claimant applied for compensation benefits and received them on the basis of a finding of the board reading “Accident notice and causal relationship established for causally related death. Case closed.”

Thus, the board has determined that Ronald Werner’s death was accidental and occurred in the course of his employment, both issues clearly within its jurisdiction. That finding of accidental death is binding between the parties, not only because of section 23 of the Workers’ Compensation Law, but also on settled principles of res judicata which apply to administrative hearings and 'determinations when the agency involved is acting, as does the compensation board, in a quasi-judicial capacity (Matter of Evans v Monaghan, 306 NY 312; see Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520; Restatement, Judgments 2d [Tent Draft No. 7], § 131, Comments g, h; Ann., 84 ALR2d 1036). And while the same acts involving an assault by a coemployee may be accidental as to the employer but intentional as to the coemployee (see, e.g., Maines v. Cronomer Val. Fire Dept., 50 NY2d 535, supra; Artonio v Hirsch, 3 AD2d 939, supra; Mazarredo v Levine, 274 App Div 122), it is difficult to comprehend how as to the employer such acts can be both accidental and intentional, the more particularly so when the compensation law says so clearly and specifically that the compensation remedy shall as to the employer be exclusive and that the board’s decision shall be conclusive, the obvious purpose of those provisions being to foreclose the possibility of duplicative recoveries. Claimant concedes that her first claim for negligence is barred, but argues that there has been no election of remedies as to the second claim because the intentional assault for which she now sues was a separate wrong which entitles her to a separate remedy. Only when the alternative remedies are theoretically inconsistent, she suggests, is a claimant held to have elected between remedies. Carried to its logical conclusion claimant’s argument would permit separate and complete recovery for each distinct tort theory for which claimant could find support in the complex of facts without regard to the fact that the ultimate injury for which recovery is had is the same, Ronald Werner’s death, whatever the theory. Thus, the remedies are, indeed, inconsistent and claimant’s acceptance of compensation benefits bars the intentional assault claim as well.

While there are a number of cases supporting that conclusion, the clearest exposition is that contained in Legault v Brown (283 App Div 303). In holding defendant entitled to summary judgment in a common-law action by an employee against his employer, the Appellate Division, Fourth Department, said (pp 305-306):

“It appears without contradiction that not only had the defendants-appellants effected workmen’s compensation insurance which was in full force but that the plaintiff-respondent had availed himself of the benefits of such insurance. He had the right to do so since it is unquestioned that the accident arose out of and during the course of his employment. There is a distinction between ‘being entitled to take compensation’ and ‘having taken compensation.’ (Grossman v. Consolidated Edison Co., 294 N. Y. 39.) Assuming that the plaintiff had a common-law action for willful assault, we think he lost such remedy by choosing instead to avail himself of the benefits of workmen’s compensation, given to him by the statute without requiring him to prove negligence, freedom from contributory negligence, willful assault or anything else except that he was injured during the course of his employment. The benefits which this employee has already received and which he will receive in the future are encompassed within the damages claimed in his complaint. He may not be doubly compensated; once under the statute and again in a common-law action. There is no provision by which the insurer could be subrogated in an action not within the purview of the Workmen’s Compensation Law. Here the employee was injured during the course of his employment. The statute gave him a remedy. That remedy was predicated upon the theory that his injury was ‘accidental’ within the statutory definition. His common-law action negates the theory of ‘accidental injury’. He based his cause of action upon a willful and wanton assault by his employers and on the theory that such assault is not an accidental injury under the statute. Assuming that he had two remedies, one by virtue of the statute and one under the common law, it must be held that the two are inconsistent one with the other. He may not pursue both to a conclusion. By demanding, receiving and retaining the benefits of his first remedy, he is estopped to simultaneously pursue the second. He made his election.

* * *

“The respondent elected to stand upon the employer and employee relationship and the theory of ‘accidental injury’ and take the statutory benefits. By this present action, he repudiates the relationship of employer and employee and the theory of ‘accidental injury’ and seeks to recover against the defendants, not as his employers, but because, as he claims he was willfully and wantonly assaulted by them. He must be held to his election.”

For the reasons set forth above, claimant, when she accepted compensation benefits for her husband’s death forfeited the right to maintain an action at law for his wrongful death, however unwittingly. That does not necessarily mean that she is without recourse if she was, in fact, mislead into filing the compensation claims by representations of a State employee (cf. Hotaling v General Elec. Co., 12 NY2d 310). It does mean that she cannot maintain an action for assault until she has established to the satisfaction of the board in a proceeding under section 123 that it is just that its prior decision awarding compensation be rescinded, until which time that award stands as a bar to the present action.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

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

Order affirmed.

      . While it is clear that subdivision 6 of section 29 of the Workers’ Compensation Law does not bar an employee who has accepted compensation benefits from suing a coemployee who has committed an intentional assault upon him (Moines v Cronomer Vol. Fire Dept., 50 NY2d 535; Vercruysse v Alati, 78 AD2d 1015), that question is not involved in the instant appeal, the individual defendants no longer being party to the action.

      . Though not expressly so provided in section 23, an award or decision is subject to modification not only on appeal but, under section 123, pursuant to the board’s continuing power and jurisdiction to “make such modification. or change with respect to former findings, awards, decisions, or orders relating thereto, as in its opinion may be just.” Claimant is not without an avenue of redress, therefore, if in fact she was misled by advice of State officials that compensation benefits were her exclusive remedy. Until the board exercises its powers under section 123, however, its decision and award to Juanita Werner is, under section 23, final and conclusive, provided only the question decided was within its jurisdiction (Friedl v Hennard, 66 AD2d 1024, 1025; Moakler v Blanco, 47 AD2d 614; Restatement, Judgments 2d [Tent Draft, No. 7], §131, Comment i).

      . The generally more substantial recovery in a common-law action is the price that statute requires of the employee or his dependents for the “swift and sure source of benefits to the injured employee or to the dependents of [a] deceased employee” (O’Rourke v Long, 41 NY2d 219, 222; Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 159).

      . (Matter of Martin v C. A. Prods. Co., 8 NY2d 226; Matter of Doca v Federal Stevedoring Co., 308 NY 44; Velasquez v Pine Grove Resort Ranch, 61 AD2d 1102, app dsmd 44 NY2d 949; Moakler v Blanco, 47 AD2d 614, supra; Schmidt v Carrara, 11 AD2d 788; Doca v Federal Stevedoring, 280 App Div 940, affd 305 NY 648; Meaney v Keating, 200 Misc 308, affd 279 App Div 1030, affd 305 NY 660; cf. Smith v State of New York, 72 AD2d 937.)