author:
Gabrielli, J.
      Chief Judge Cooke Meyer, J. Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Michael McCray, Appellant.
    Argued October 15, 1982
    decided December 14, 1982

      POINTS OF COUNSEL

      Courtenay L. Wiltshire for appellant.
    I. The trial court erred in the denial of defendant’s motions for a mistrial and for a hearing to inquire into the prosecutor’s intention and motive in exercising peremptory challenges to exclude seven blacks and one Hispanic in the selection of the jury. (People v Thompson, 79 AD2d 87; Hernandez v Texas, 347 US 475; Castaneda v Partida, 430 US 483; Swain v Alabama, 380 US 202.) II. The court committed error in permitting the complainant witness Philip Roberts to testify that he failed to identify another person as the perpetrator of the alleged robbery. (People v Trowbridge, 305 NY 471; United States v Rosenberg, 195 F2d 583; People v Sullivan, 5 AD2d 847; People v Moore, 48 AD2d 690; People v Angora, 13 AD2d 72.) Ill The verdict of the jury convicting defendant of robbery in the first degree and robbery in the second degree was against the weight of the evidence and in the interest of justice the verdict of the jury should be set aside and the indictment dismissed. (People v Kidd, 76 AD2d 665.) IV. The trial court inherently and together with the statutory authority of CPL 330.30 (subd 1) does have the power to set aside the verdict of the jury. (People v Ramos, 33 AD2d 344; People v Walker, 26 Misc 2d 940; People v Giamario, 20 AD2d 815; Roseman v United States, 364 F2d 18, 386 US 918.)

      Elizabeth Holtzman, District Attorney {Barbara D. Underwood and Katherine N. Rose of counsel), for respondent.
    I. Defendant did not make a showing sufficient to warrant a mistrial or a hearing on his claim that the prosecutor used peremptory challenges to exclude potential jurors solely on the basis of race. (Swain v Alabama, 380 US 202; People v Elwell, 50 NY2d 231; Cooper v Morin, 49 NY2d 69, cert den sub nom,. Lombard v Cooper, 446 US 984; Duncan v Louisiana, 391 US 145; Taylor v Louisiana, 419 US 522;
      Peters v Kiff, 407 US 493; People v Parks, 41 NY2d 36.) II. The court properly permitted the complainant to testify that he observed many people on the street and rejected one candidate pointed out by the police before identifying defendant as the perpetrator of the crime. (People v Trowbridge, 305 NY 471; People v Gonzalez, 55 NY2d 720; People v Caserta, 19 NY2d 18; People v Cioffi, 1 NY2d 70; People v Mobley, 56 NY2d 584; People v Johnson, 32 NY2d 814.) III. The Trial Judge correctly held that the evidence was legally sufficient to support the verdict, and that he therefore had no power to set aside the verdict in the interest of justice. (People v Dorta, 56 AD2d 607, 44 NY2d 930.)
   OPINION OF THE COURT

Gabrielli, J.

CPL 270.25 states that: “A peremptory challenge is an objection to a prospective juror for which no reason need be assigned. Upon any peremptory challenge, the court must exclude the person challenged from service.” This right to peremptory challenges has been exercised by prosecutors and defendants in this State pursuant to the same or similar statute for over 100 years (see Walter v People, 32 NY 147). In Swain v Alabama (380 US 202), the Supreme Court determined that a prosecutor is not required to disclose his reasons for excusing prospective jurors in a particular case on the mere allegation by the defense that peremptories are being used to exclude minority jurors. We find nothing in our State Constitution or statutes which compels a departure from this holding of the Supreme Court.

Defendant was convicted of robbery in the first and second degrees for his part in the November 15, 1978 gunpoint robbery of Philip Roberts, a student at Pratt Institute. After Roberts had withdrawn money from an automatic bank teller machine, the defendant and several companions pushed him into the vestibule of an apartment building and took his money. Defendant was identified by Roberts several weeks later when, while Roberts was being driven by police around the neighborhood where he was accosted, he spontaneously picked out the defendant from a group of four individuals standing on a street corner.

During jury selection, the defense movéd for a mistrial, claiming that the prosecutor had unlawfully used peremptory challenges to exclude jurors on the basis of race. In the alternative, the defense moved for a hearing to inquire into the prosecutor’s use of her peremptory challenges. In pursuing these motions, the defense pointed out that 8 of the 11 peremptory challenges exercised by the prosecutor had been used to exclude all of the blacks and the only Hispanic prospective juror drawn. Nevertheless, these defense motions were denied. The court relied upon Swain v Alabama (supra) in concluding that it is inappropriate to inquire into a party’s motives solely on the basis of the manner in which peremptory challenges have been exercised in a single case. On the appeal from defendant’s conviction, the Appellate Division affirmed, without opinion. Defendant now argues to this court, inter alia, that the trial court committed reversible error in denying his motion for a mistrial or for a hearing to inquire into the prosecutor’s intentions and motives in exercising peremptory challenges to exclude certain jurors.

The issue of minority representation on criminal juries has been the subject of several decisions by the Supreme Court. These decisions draw a critical distinction between the jury pool, which is the group of prospective jurors from which the litigants will select a jury to hear their particular case, and the jury that is ultimately chosen to serve. The Sixth Amendment requires that the jury pool be selected from a representative cross section of the community (Taylor v Louisiana, 419 US 522), and distinctive groups in the community may not be systematically excluded from the pool. Once the jury pool is selected, however, prospective jurors may then be excluded through the exercise of cause challenges and peremptory challenges. The challenge for cause removes those jurors who either admit to actual bias or those who admit to circumstances from which the law will infer an overwhelming potential for bias. The peremptory challenge, in contrast, is a challenge for which no reason need be assigned. This challenge enables either the prosecutor or the defense to exclude prospective jurors who may harbor subtle prejudices which may be sensed by counsel but which are not explicitly revealed by the prospective juror on voir dire. It is also designed to permit counsel to remove prospective jurors who counsel may have alienated during the course of questioning on voir dire.

In Swain v Alabama (supra), the Supreme Court clearly determined that the prosecutor’s motives for striking particular jurors may not be subjected to scrutiny simply upon the assertion by the defense that peremptories are being used to exclude minorities. The court noted that only if it can be established that the prosecutor’s office is using peremptory challenges systematically to exclude minorities from juries over a period of time will a prima facie case of discrimination be made out. The decision in Swain upheld the traditional model for jury selection, which “assumes that impartiality is best realized by first choosing a pool of jurors from the community at large, excusing those clearly biased, and then permitting the parties to excuse additional jurors who, in their view, are less likely than others to provide a fair trial” (Saltzburg & Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representation, 41 Md L Rev 337, 359).

In urging a reversal in this case, defendant argues that this court should reject the holding of the Supreme Court in Swain on the basis of the provisions of our State Constitution. Defendant would have this court overturn the present system of limited peremptory challenges by requiring the prosecutor to shoulder the burden of assigning and proving justifiable reasons for his exercise of these challenges whenever there is a statistically supportable allegation that the prosecutor is removing prospective jurors on the basis of their status as minority members of the community. The defendant, in effect, would require the prosecutor to prove that a prospective juror’s racial biases, whether based upon group affinity or otherwise, would interfere with the attainment of a fair and impartial verdict before that juror could be excused. We decline to adopt this position for it would convert the peremptory challenge system into a system based solely upon challenges for cause. Indeed, we find no persuasive reason for departing from our present method of jury selection.

A system which would require counsel to prove that a prospective juror harbors racial, sexual or religious prejudices that could interfere with the attainment of a fair and just verdict would succeed in eliminating only the most blatant biases from the jury. To begin with, we must recognize that it is the sad reality of our times that predisposition and bias may, in some individuals, be based upon racial, religious or sexual status. At the extreme end of the spectrum, those who admit to such prejudices or admit to membership in groups from which such prejudices may readily be inferred, obviously should be disqualified from sitting on juries where these prejudices could interfere with the attainment of a fair and just verdict. For example, fundamental fairness dictates that a member of the Ku Klux Klan be disqualified from sitting on a jury in a case in which a black man is accused of assaulting a white. These individuals can adequately be eliminated through the challenge for cause. Just as dangerous to the attainment of justice, however, is bias on the part of jurors which is not quite as overt in speech or behavior. While the questioning that takes place on voir dire is perfectly suited to ferret out and eradicate blatant and admitted bias from the jury, it is simply unlikely to disclose certain subtle and hidden biases which could prevent the jury from rendering a fair and impartial verdict. Several reasons for the inadequacy of voir dire for this purpose have been identified (see Saltzburg & Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representations, 41 Md L Rev 337, 355). First, jurors may be reluctant to admit their prejudices before spectators or others present in the courtroom during the voir dire. Second, certain prospective jurors may evade full disclosure of their prejudices in an effort to avoid being struck from the jury. Finally, other prospective jurors may simply be unaware of the existence of certain biases or prejudices they may harbor. A system of jury selection in which reasons must be assigned for the removal of individual jurors seriously hampers the elimination of these biases from the jury. The inadequacy of relying upon voir dire to filter out all potential biases based upon group affinity is exacerbated by the reluctance of some Trial Judges to permit extensive, time-consuming voir dire examination.

In this vein, it has long been recognized that one who discriminates “cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discrimination practices in ways that are devious, by methods subtle and elusive — for we deal with an area in which ‘subtleties of conduct * * * play no small part’ ” (Matter of Holland v Edwards, 307 NY 38, 45; see, also, Imperial Diner v State Div. of Human Rights, 52 NY2d 72, 77). In order to effectively meet this problem the usual and more demanding standards of proof have been reduced in cases where the object of the law is to eliminate discrimination or bias (Matter of Holland v Edwards, supra). In the jury selection process that rule is served by the peremptory challenge which permits an experienced attorney to eliminate a juror who he believes might be biased against his case in instances where the potential bias cannot be disclosed or articulated to the degree necessary to establish a challenge for cause.

We further note that inherent in relying upon the cause challenge to eradicate certain prejudices from the jury is that litigants may be reluctant to engage in the intensive questioning needed to reveal the biases of potential jurors. Pointed questions directed at an area as sensitive as a potential juror’s racial, religious or sexual biases may, even where such biases do not exist, alienate a juror against counsel and his position. To avoid the possibility of such juror alienation, counsel may be forced to accept the risk that biased jurors may be sworn to serve on the jury.

Furthermore, to the extent that restrictions on a party’s exercise of the peremptory challenge would require more extensive voir dire to disclose provable racial biases, as well as requiring extensive evidentiary hearings on motions to determine the motives of a party exercising a peremptory challenge, the rule proposed by the defendant would invite the additional delays at trial which our justice system can ill afford. In this era of over-crowded court calendars and scarce judicial resources, we should not alter the trial stage in such a way as to necessitate or encourage unwarranted additional lengthy delays.

Finally, under the system proposed by defendant there is a danger that the prejudices of prospective jurors may not be recognized by Trial Judges, despite the presence of answers given on voir dire which suggest the possibility of bias. Due to the sensitivity of the subject of racial, religious or sexual prejudice, Trial Judges may be hesitant to strike a juror on this basis, particularly when the juror denies the existence of such bias. As a result, the spectre of racial prejudices influencing jury verdicts may be heightened rather than hindered under the defendant’s proposed formulation. This danger does not exist under a system where counsel may excuse a limited number of prospective jurors without assigning specific reasons for doing so.

Although concern has been expressed over the possible abuse of a system containing unrestricted peremptory challenges, the potential for abuse is limited by certain practical considerations. If counsel excuses potential jurors on the basis of group status he or she will waste limited peremptory challenges which could be used to excuse other potential jurors who might be more predisposed to the opponent’s position. Furthermore, counsel must be aware that he may alienate those jurors ultimately selected if it becomes apparent that selection was made upon the basis of group status.

For all of the foregoing reasons, we find no compelling basis for rejecting the holding of the Supreme Court in Swain v Alabama (supra). The benefits of requiring the prosecutor to justify the exercise of certain peremptory challenges are simply outweighed by the damage to a system of jury selection which best serves to guarantee a fair and impartial jury. As the Supreme Court noted, the peremptory challenge “ ‘must be exercised with full freedom, or it fails of its full purpose’ ” (Swain v Alabama, supra, at p 219, citing Lewis v United States, 146 US 370, 378).

Additionally, some comment should be made regarding the defendant’s reliance (and, indeed, that of the District Attorney) upon certain provisions of our State Constitution. They first refer to section 2 of article I of the New York Constitution, which guarantees the right to trial by jury, and section 1 of that same article, which appears to specify that conviction of a defendant must be by “the judgment of his peers.” In Taylor v Louisiana (419 US 522, supra), the court held that the Sixth Amendment right to a jury trial, a right which obviously and necessarily implies the right to a judgment of one’s peers, requires only that distinctive groups in the community may not be systematically excluded from the jury pool. Nothing in the language of our State’s counterpart to the Sixth Amendment right to a jury trial suggests that the framers of our State Constitution intended a more expansive interpretation. Similarly, there is nothing in the language or history of our State equal protection provision (art I, § 11) which suggests that the scope of the rights guaranteed by this provision should extend beyond the rights guaranteed by the equal protection clause of our Federal Constitution in this instance. It must be recalled that in Swain, the Supreme Court specifically rejected the Federal equal protection challenge, and our court has held that our State constitutional equal protection clause is no more broad in coverage than its Federal prototype (Matter of Esler v Walters, 56 NY2d 306). Furthermore, defendant’s reliance on our State Constitution’s due process provision is also unavailing.

We have considered defendant’s remaining contentions and we find them to be without merit. Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke

(concurring). I concur in the majority’s holding that the prosecutor’s use of peremptory challenges did not violate defendant’s constitutional rights.

I also agree that this court need not decide the negative identification issue, but for a reason different than that implicitly adopted by the majority, which erroneously concludes that, defendant’s counsel opened the door to this testimony. Assuming, arguendo, that admission of the negative identification testimony was improper, in light of the entire record, including defense counsel’s own reference to this subject in his opening statement, the error, if any, cannot be said to have prejudiced defendant.

Meyer, J.

(dissenting). In my view the use by a prosecutor of peremptory challenges systematically and without apparent reason to exclude all blacks on the panel from the petit jury before which is to be tried a black defendant charged with robbing a white victim violates the Sixth Amendment guarantee of a fair trial by an impartial jury. I, therefore, dissent.

Defendant, a black man, was indicted for first degree robbery. The complainant was a white man. During selection of the trial jury, after the prosecution had exercised 11 of its 15 peremptory challenges, defendant moved for a mistrial on the ground that the prosecutor had by peremptory challenge excluded all seven blacks and the one Hispanic who had been drawn as prospective trial jurors up to the time the motion was made. In the course of argument of the motion, defendant’s attorney asked for a hearing at which the prosecutor would testify concerning the grounds for the challenges. The Trial Judge denied the motion and thereafter filed an opinion (104 Misc 2d 782) in which he reasoned that the “potential affinity” between a defendant and a juror who shares the defendant’s background justified the peremptory challenges exercised by the People and that under Swain v Alabama (380 US 202, 222): “In light of the presumption of regularity and the historic immunity from inquiry concerning the use of peremptory challenges, it is inappropriate to inquire into a party’s motives solely on the basis of the manner in which peremptory challenges have been exercised in a single case” (104 Misc 2d, at p 784). The Appellate Division affirmed, without opinion.

Swain, upon which the majority and the courts below so heavily rely, was decided solely on equal protection grounds. Acknowledging that jurors “ ‘should be selected as individuals, on the basis of individual qualifications, and not as members of a race’ ” (380 US, at p 204), and that nothing in the Constitution of the United States requires the grant of peremptory challenges {id., at p 219), the Supreme Court held that to subject the prosecutor’s judgment in any given case to scrutiny for reasonableness and sincerity would establish a rule wholly at odds with the peremptory challenge system. Excusal of blacks on the basis of their potential affinity for a black defendant, it reasoned, did not violate the equal protection clause of the Fourteenth Amendment; such a violation could be established only if purposeful discrimination by State officials was shown (id., at pp 219-224) as when “the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries” (id., at p 223).

Not addressed by Swain, which was decided prior to the holding in Duncan v Louisiana (391 US 145) that the Fourteenth Amendment made applicable to the State the Sixth Amendment’s guarantee of trial by an impartial jury, was the effect of the latter provision. The Supreme Court’s subsequent holding in Taylor v Louisiana (419 US 522) that the Sixth Amendment requires a jury pool made up of a representative cross section of the community has raised the question whether the court when confronted by the situation of the present case, involving not the pool but the petit jury itself, will adhere fully to its Swain ruling. At least one court (People v Payne, 106 Ill App 3d 1034, 1042) has concluded, as do I, that Duncan and Taylor compel a result different from Swain.

In Taylor v Louisiana (supra), the Supreme Court construed the Sixth Amendment to require a pool of jurors representing a fair cross section of the community. The purpose of the fair cross section requirement is to assure that the jury reflects the broad range of human experience. But a petit jury from which all members of defendant’s race have been purposely excluded is not a petit jury “ ‘representative of a cross section of the community who have the duty and the opportunity to deliberate’ ” (Taylor v Louisiana, 419 US 522, 528, supra, quoting Apodaca v Oregon, 406 US 404, 410-411 [plurality opn]; see Williams v Florida, 399 US 78, 100). Indeed, as the Supreme Court has noted in another context, such a procedure “destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process” (Rose v Mitchell, 443 US 545, 555-556). Nor is such a jury impartial, even though each of its members considered individually may be, for as stated by Justice Thurgood Marshall, concurring in Peters v Kif (407 US 493,503) and quoted with approval in the majority opinion in Taylor v Louisiana (419 US 522, 532, n 12, supra): “When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.”

It is no answer to suggest, as does the majority, that so to hold is inconsistent with the legislative definition of a peremptory challenge as “an objection to a prospective juror for which no reason need be assigned” (CPL 270.25, subd 1). Nor, contrary to the majority’s suggestion (at p 546), does so holding require a prosecutor to prove bias or even assign a reason for each peremptory challenge. What such a rule would do, rather, and all that it would do, would be to call upon a prosecutor who had so exercised his peremptories as to exclude from the petit jury all members of defendant’s race and thus evidenced his or her intention to have defendant tried before a racially imbalanced jury to offer reasonable explanations for the various challenges grounded in a reason other than race. To the extent that CPL 270.25 (subd 1) appears to be inconsistent with such a rule it must, on familiar principles, be construed so as to avoid inconsistency with the Sixth Amendment (cf. People v Thompson, 79 AD2d 87, 109, n 20, supra), for the fair cross section-impartiality requirement is meaningless if in any case involving a defendant of a given race the prosecutor can intentionally and systematically exclude all members of that race without cause.

This does not mean that a prosecutor may never exercise a peremptory challenge against a black in a case involving a black defendant. Peremptory challenges are intended to permit elimination from the jury of persons whose bias is suspect but cannot be proven, to assure that those who ultimately constitute the petit jury “will decide on the basis of the evidence placed before them, and not otherwise” (Swain v Alabama, 380 US, at pp 211-212, 219, supra). But that does not provide carte blanche to exclude all blacks solely because they are black. Even in a case in which the testimony is expected to reveal that a key witness has referred to defendant as “the nigger”, a prosecutor may not exclude all blacks through the exercise of peremptory challenges. Rather his obligation to maintain the fair cross section diversity of the petit jury requires voir dire inquiry by him of black prospective jurors concerning whether they will be able to weigh objectively the testimony of a witness who used such a racial epithet (People v Johnson, 22 Cal 3d 296).

To hold otherwise is to sanction under the guise of fairness or tradition, or both, deliberate discrimination by a State official. There can be only two explanations for a prosecutor’s challenge of all the members of the defendant’s race. First, the prosecutor might have legitimate reasons to doubt the impartiality of each individual. If that be the case, however, the State will not be harmed if he is asked to articulate those reasons and justify the challenges. The only other possible explanation for the prosecutor’s elimination of all blacks from the jury is his mistrust of the ability of blacks, as a group, to be impartial. But the corollary of this view, in a case like this where the complainant and defendant are of different races, is that whites cannot be trusted either. The result is that the defendant, unable to remove whites from the jury, is deprived of an impartial jury. As the Supreme Judicial Court of Massachusetts put it in Commonwealth v Soares (377 Mass 461, at pp 487-488): “Given an unencumbered right to exercise peremptory challenges, one might expect each party to attempt to eliminate members of those groups which are predisposed toward the opposition. However, when the defendant is a minority member, his attempt is doomed to failure. The party identified with the majority can altogether eliminate the minority from the jury, while the defendant is powerless to exclude majority members since their number exceeds that of the peremptory challenges available. The result is a jury in which the subtle group biases of the majority are permitted to operate, while those of the minority have been silenced.”

The practical difficulties of according a defendant such a right are exaggerated by the majority. First, as to the voir dire itself, the prosecutor who must look at jurors as individuals rather than members of a group would be in no different position than his adversary is now. Faced with more veniremen of the victim’s group than he can excuse, the defense attorney must find an individual basis for each challenge. I do not doubt that prosecutors are equal to the same task and can perform it without excessively delaying the trial. Second, expeditious procedures can easily be developed for hearing a motion for a mistrial on this ground. The Second Department’s proposed procedure, for example, depends to a large extent upon the trial court’s observation of the voir dire. In most cases, the argument of counsel, the prosecutor’s explanation and the court’s observation will be sufficient to decide the motion. “Only in the unusual case, if at all, would it appear that a hearing would be necessary” (People v Thompson, 79 AD2d, at p 109).

It is not necessary to spell out in meticulous detail the exact procedure to be followed in hearing such motions for one to recognize that the potential for delay of the judicial process can never be so harmful to the institution as is the violation of the Sixth Amendment’s impartial jury requirement sanctioned by allowing the exercise of peremptory challenges solely on the racial basis of “potential affinity”. A verdict which is acceptable to whites but not to blacks is not the verdict of an impartial jury. The defendant’s motion for a mistrial should not have been denied without a statement by the court of his observations or an explanation from the prosecutor of his reasons for challenging the eight minority jurors.

There should be a reversal and a new trial.

Fuchsberg, J.

(dissenting). Standing alone, the record here, featuring the People’s use of 8 of its 11 exercised peremptory challenges to excuse all of the 7 blacks and the lone Hispanic drawn from the venire, on its face presented a classical picture of intentional and systematic exclusion on account of race, creed, color or national origin. As such, without more and absent any countervailing explanation, I agree with my fellow dissenters that it ran counter to the defendant’s constitutional right to be tried by a jury drawn from a randomly selected, representative cross section of the community. True, attempts to pursue the cross section ideal are commonly, and most efficiently, managed in the formation of the jury pool from which the venire is drawn rather than at the picking of the petit jury. This does not mean, however, that its purposeful frustration at the latter stage is to be countenanced. Since, at the very least then, the trial court should have granted defendant’s motion for a hearing, I agree there indeed should be a reversal and a new trial.

I also firmly believe that guidelines to aid in the determination of the existence of purposeful and systematic discrimination, the finding of which will so heavily depend upon a trial court’s personal observations, would best be developed by “the step-by-step and case-by-case evolution characteristic of the common law” (People v Andre W., 44 NY2d 179, 185).

So I cannot accept my fellow dissenters’ assumption that whatever procedure might be adopted to investigate discrimination in this context should include an obligation that a prosecutor or other counsel so charged with exercising peremptories explain, whether by argument or testimony, the grounds for the challenges. This may be better understood against some comment on the nature and essentiality of the function of the peremptory challenge.

Having evolved over the centuries as a unique and effective key to securing an impartial jury while assuring litigants and the public of its fairness, the peremptory challenge is not to be underestimated. In large part this is because the challenge for cause (CPL 270.20), fashioned essentially to eradicate the smaller incidence of patent prejudice rather than the far greater one of latent prejudice, cannot hope, by itself, to provide full protection from partiality (cf. People v Provenzano, 50 NY2d 420). Surely, absent impartiality, the petit jury would lack a jurisprudential ingredient on a par with cross-sectionalism.

For impartiality cannot be taken for granted. It would be naive in the extreme to entertain the notion, shared perhaps by philosophers without experience, that jurors, unlike other persons, do not bring with them the biases produced by their respective environments, education, group affiliations, occupational experiences and the like. Moreover, many prospective jurors report for service with predispositions or misconceptions, often subconscious or not well thought out, concerning certain types of cases or litigants. Since self-appraisal may be too subjective for appreciation of one’s underlying prejudice, self-esteem too blinding for acknowledgement of an inability to overcome it and self-confession too embarrassing to be made in public, as often as not voir dire, even when not too circumscribed, will not disclose bias sufficiently to support a challenge for cause (Saltzburg & Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representation, 41 Md L Rev 337, 355; Suggs & Sales, Juror Self-Disclosure in the Voir Dire: A Social Science Analysis, 56 Ind LJ 245; Babcock, Voir Dire: Preserving “Its Wonderful Power”, 27 Stan L Rev 545, 554).

The peremptory challenge fills this gap. While, in the vernacular, we often say that a lawyer is to “select a jury”, this function, realistically regarded, more accurately may be seen as one to “unselect a jury”. After all, operating under our adversary system, with rare exceptions, the aim of each advocate is to eliminate those jurors least likely, in the circumstances of the case at hand, to favor the position of his or her client. In short, subject to errors of judgment, targeted are the extremes of partiality, in principle a most valuable purpose.

Historically and today, to give the peremptory challenge the full sway it needs to do its job, “no reason need be assigned” for its use (CPL 270.25). Taking the statute at its word, not only need no reason be articulated, but none need exist and, when it does, any reason, save when it bespeaks systematic and intentional exclusion of the unmistakable kind we encounter in this case, should do. This includes anything which motivates human conduct, ranging all the way from intuition, courtroom nuances, the set of a face and a willingness to gamble on a replacement to a calculated judgment of what effect a particular juror’s background and personality is likely to have in appraising the facts and personalities on which a verdict will turn. For instance, should one quarrel with the right of counsel to strike a juror whose youthful idealism may produce a touch of hardness, or the corresponding right of the adversary to eliminate an older person whose mellowness he senses will have brought a forgiving approach? Or with the right, while representing a female client, to excuse a taleswoman because of a belief that women can be each others’ severest critics? Or, too, depending on the case committed to counsel’s trust, in preferring the perceived openhandedness of a salesman or freewheeling executive over the precision of a toolmaker or the caution of a loan officer, as the case may be? Or, even because one is rich and the other poor? Or, sensitive to the realities of life in a pluralistic society, to legitimately consider any and all of a venireperson’s varied socioeconomic striations and the attitudinal effect these may have wrought? Or, knowing too little about the individual jurors, because the lawyer makes one of these sensitive decisions on a stereotypical basis? Centuries of experience say the answer is no.

All this is mind, in order to correct occasional lapses into purposeful discrimination as such, it would be most unfortunate to adopt a procedural norm which would require every trial advocate to not only search his or her soul and subconscious but, figuratively, to look over his or her shoulder before challenging a prospective juror who shares a “common characteristic” with the opposing party or with another juror whom the attorney has already excused. Though the rejection by counsel of an invitation lo explain a seemingly discriminatory challenge, of course, may make far less likely a finding that it in fact was not discriminatorily motivated, the letter and spirit of the legislative provision that “no reason need be assigned” should be respected.

This said, I would reverse and order a new trial.

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

Order affirmed.

      . I observe that on this underlying issue the People join defendant in contending that the provisions of our State Constitution prohibit the use of peremptory challenges to exclude potential jurors solely on the basis of race.

      . The number of peremptory challenges that may be exercised by each party is strictly limited by CPL 270.25 (subd 2).

      . In Matter of Esler we said: “In certain areas, of course, the State Constitution affords the individual greater rights than those provided by its Federal counterpart. We have noted, however, that the wording of the State constitutional equal protection clause (NY Const, art I, § 11) ‘is no more broad in coverage than its Federal prototype’ and that the history of this provision shows that it was adopted to make it clear that this State, like the Federal Government, is affirmatively committed to equal protection, and was not prompted by any perceived inadequacy in the Supreme Court’s delineation of the right (Dorsey v Stuyvesant Town Corp., 299 NY 512, 530-531)” (56 NY2d, at pp 313-314 [n omitted]).

      . We have no occasion to pass on the merits of defendant’s contention that improper negative identification testimony was admitted in this case. The testimony of which defendant complained (anticipated by both counsel in their openings) was as to the failure of the complainant to earlier identify defendant among those individuals he viewed in the neighborhood several weeks after the robbery took place.

      . The inconsistency between that affirmance and the earlier opinion of the same department in People v Thompson (79 AD2d 87, app withdrawn 55 NY2d 879) which after extensive and thoughtful analysis held such a use of peremptory challenges unconstitutional undoubtedly resulted from its- holding that Thompson would not be applied retroactively (79 AD2d, at p 112, n 22). Thompson was decided on February 2, 1981. The McCray jury was selected on April 24, 1980.

      . Although only four Justices concurred in the part of the opinion from which the quoted words are taken, the three dissenting Justices who argued that the proof presented was sufficient to demonstrate a constitutional violation implicitly agreed with it.

      . The contrary suggestions of the majority (at pp 548-549), more fully answered in the text of this dissent, below would be more convincing if supported by empirical evidence from California, Massachusetts or New Mexico, each of which, in reliance on respective State constitutional provisions, has held (People v Wheeler, 22 Cal 3d 258; Commonwealth v Soares, 377 Mass 461, cert den 444 US 881; State v Crespin, 94 NM 486) that the representative cross section requirement forbids the “potential affinity” peremptories which the majority now sanctions.

      . Of course, if one assumes that neither blacks nor whites are necessarily partial, there can be no justification for peremptorily challenging either group as a class.

      . Although in some circumstances remittal for a hearing may be proper (see People v Payton, 51 NY2d 169, 176-178; cf. People v Havelka, 45 NY2d 636), such a remittal would not be proper in the present case in view of the time elapsed and the fact that, apparently, the voir dire was not recorded (People v Thompson, 79 AD2d, at p 111, n 22, supra).

       (US Const, 6th, 14th Amdts [see Taylor v Louisiana, 419 US 522].)


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Leonard Lipsky, Respondent.
    Argued November 8, 1982
    decided December 14, 1982

      POINTS OF COUNSEL

      Donald O. Chesworth, Jr., District Attorney (Kenneth R. Fisher of counsel), for appellant.
    I. The evidence was legally sufficient to support the verdict; the confession established the corpus delicti of murder and the additional circumstantial evidence satisfied the confession-corroboration rule. (People v Lytton, 257 NY 310; People v Patrick, 182 NY 131; Ruloff v People, 18 NY 179; People v Murray, 40 NY2d 327; People v Bennett, 49 NY 137; People v Barnes, 50 NY2d 375; People v Benham, 160 NY 402; People v Bretagna, 298 NY 323; People v Licitra, 47 NY2d 554; People v Jaehne, 103 NY 182.) II. Defendant’s admissions are proper corroboration of his confession because they were made prior to investigation or news of the crime, and consisted of notes to himself and statements to friends in a neutral setting under circumstances providing a strong inference of reliability. (People v Creeden, 281 NY 413; People v Reilly, 224 NY 90; Opper v United States, 348 US 84; Smith v United States, 348 US 147; People v Aparo, 285 App Div 1171; People v Greenwood, 20 AD2d 272; United States v Johnson, 589 F2d 716; Warszower v United States, 312 US 342; United States v Marcey, 440 F2d 281; United States v Nichols, 421 F2d 570.) III. The rule of Ruloff v People, requiring direct proof of the corpus delicti, should now be overruled. (People v Licitra, 47 NY2d 554; People v Bretagna, 298 NY 323; People v Jaehne, 103 NY 182; People v De Martini, 218 NY 561; People v Palmer, 109 NY 110; People v Kennedy, 47 NY2d 196; People v Cleague, 22 NY2d 363; Holland v United States, 348 US 121; People v Wachowicz, 22 NY2d 369; People v Barnes, 50 NY2d 375.)

      Edward J. Nowak, Public Defender, for respondent.
    I. The corroborative evidence of defendant-respondent’s confession required by CPL 60.50 was insufficient, as a matter of law, to sustain the jury’s verdict. The order of the court below, affirming the trial court’s order setting aside the jury’s verdict pursuant to CPL 330.50 (subd 1), should be affirmed. (Ruloff v People, 18 NY 179; People v Bennett, 49 NY 137; People v Murray, 40 NY2d 327; People v Deacons, 109 NY 374; People v Benham, 160 NY 402; People v Brasch, 193 NY 46; People v Lytton, 257 NY 310; People v Cuozzo, 292 NY 85; People v Reade, 13 NY2d 42; People v Troche, 14 AD2d 361.) II. CPL 60.50 does not permit an individual’s confession to be corroborated by a separate admission made by the same individual after the alleged crime was committed. (Opper v United States, 348 US 84; Smith v United States, 348 US 147; People v Lo Turco, 256 App Div 1098; People v Creeden, 281 NY 413; People v Reilly, 224 NY 90; People v Cona, 49 NY2d 26; People v Masiano, 253 App Div 454.) III. A change in the confession corroboration statute is a matter for legislative action. (People v Brasch, 193 NY 46; People v Pettis, 62 AD2d 1110; Flood v Kuhn, 407 US 258; Lucenti v Cayuga Apts., 48 NY2d 530; Uniformed Firefighters Assn., Local 94, IAFF, AFL-CIO v Beekman, 52 NY2d 463.)
   OPINION OF THE COURT

Meyer, J.

The proscription of CPL 60.50 against conviction solely upon evidence of a confession or admission without proof that the offense charged has been committed does not require direct proof, other than the confession or admission, of death or criminal agency. Although the body of the victim is never found and there is no direct evidence, other than the confession, that the defendant caused the victim’s death, a jury question is presented by circumstantial evidence calculated to suggest that the victim is dead and implicating defendant as the criminal agency, the key to which is furnished by the confession or admission. The order of the Appellate Division should, therefore, be reversed and the verdict should be reinstated.

I

The question at issue being the sufficiency of the evidence to sustain the jury’s verdict finding defendant guilty of murder in the second degree, the evidence is to be viewed in the light most favorable to the People. What follows is a recital of the evidence as so viewed.

Mary Robinson, a lifelong resident of Rochester, was last heard from at 1:30 a.m. on June 10,1976. Married to Larry Robinson in October, 1971, she had worked as a telephone solicitor for about a year and then as a waitress until, following her father’s death in 1974, she inherited an interest in seven houses. Thereafter she collected the rents and took care of the maintenance of the houses. For about a year and a half before her- father’s death, Mary’s sister, Frances, lived with Mary and her husband. In 1973, Larry Robinson began living as husband and wife with Frances and told Mary he did not wish to continue such a relationship with her. Mary, nevertheless, remained in the same living quarters with Larry and Frances. In early June, 1976, Larry and Frances began working at a massage parlor and in order to be closer to where they worked moved from the apartment in which the three of them were then living to a hotel. Frances was working as a prostitute. Mary, who had again been working as a waitress, was told by Frances and Larry what they were doing and she also started in early June, 1976, working as a prostitute, mainly at several downtown Rochester hotels. Although she had remained in the apartment in order to close it up, she was going to move in with Frances and Larry when that was done. Larry testified that he was in daily contact with her and that her emotional and physical condition was good.

Between 6 and 7 p.m. on June 9, 1976, Larry received a call from Mary and at 8:30 p.m., he and Frances met and spoke with Mary in the park near the two hotels she frequented. She was wearing her glasses, a dress, a light jacket and white sandals and was carrying a white purse. Larry and Frances then returned to their hotel room. At 1:30 a.m. on June 10, Larry had a 5 to 10 minute telephone conversation with Mary. When he had not heard further from her by about 3 a.m., he and Frances went looking for Mary, checking with the security guards at the two hotels. When she had neither called nor come to their hotel by 7:30 a.m., Larry and Frances went to the apartment. They found no one there but found nothing missing from it other than the glasses and clothing she wore, the purse she carried when they met in the park the night before and the reddish plaid wallet she carried in her purse. Mary’s mother had died giving birth to her and the wedding picture of her mother and father which she always kept at her bedside was in its regular place on the nightstand in her bedroom. Larry and Frances remained at the apartment until 11 a.m. the next day, June 11, and then reported Mary to the police as a missing person. Neither Larry nor Frances, nor Mary’s sister-in-law and mother-in-law, all of whom saw her frequently before June 9, have had any contact with her since, nor was any money paid into her Social Security account after the quarter ending in June, 1976, nor any claim for benefits made against the account.

Defendant Lipsky was an accounting student at Monroe Community College in Rochester in 1976, and was living in an apartment at 77 Brooks Avenue. In April, 1976, he became engaged to Marsha Hanrahan and when the gas and electricity was turned off at 77 Brooks Avenue, he moved into her apartment. On June 1,1976, Ms. Hanrahan left Rochester for Cape Cod where she stayed until June 14 or 15. Her relationship with defendant was not going well when she left. When she returned to Rochester, defendant was at her apartment but seemed upset and emotionally overwrought, and at times cried. He told her he wanted to go to Arizona and work at his parents’ motel and asked her to come. Shortly thereafter he left. Ms. Hanrahan did not go with him, but she did go to the 77 Brooks Avenue apartment to help him clean it up, pack the things he wanted to take and discard the things he did not want. While doing so she found in a cupboard in the room across the hall from defendant’s room a purse, some white sandals and some girls’ socks. Inside the purse was a pair of wire frame glasses and a red plaid wallet in which was a police identification card bearing a photograph and the name of Mary C. Robinson and some family pictures. She asked defendant whose the articles were and he replied that they belonged to a former tenant and had been abandoned. He told her she could keep them, which she did, asking a number of friends whether they had ever seen the girl identified by the police card. Defendant left Rochester for Arizona a few days later.

In August, 1978, defendant, who had married in the interim, was working in Provo, Utah, for a distribution company. On October 16,1978, as the result of an incident that occurred on the campus of Brigham Young University, defendant was arrested for aggravated assault. He pleaded guilty and was ordered held pending presentence evaluation. During a conference with the psychiatric social worker in January, 1979, defendant told him that he had committed a previous crime which he wished to clear up. Warned that his statements could not be kept confidential and after discussing the matter with his wife, defendant met with the social worker and his probation officer on February 7, 1979, and informed them that he had murdered a woman, that she was a prostitute whom he had paid to have intercourse with him, but that he became angry when she wanted to leave and attacked her and then strangled her for fear that someone in her family might retaliate against him. Questioned as to the name, date and place, he wrote on a legal pad: “Mary Robinson, June 14, 1976, Rochester, N.Y.”, and gave the place in Rochester as his apartment at 77 Brooks Avenue. Asked what he had done with the body, defendant said he had placed it in the trunk of his car and driven three hours to a point south of Rochester, where he dumped the body down a gully.

After the Rochester police were notified by Utah authorities, the Rochester Democrat and Chronicle carried an article on the matter including a photograph of Mary C. Robinson. As a result Ms. Hanrahan turned over to the Rochester police the articles defendant had given her when his apartment was cleaned out, all of which were introduced at trial and identified by Larry Robinson as belonging to Mary Robinson. The People also presented testimony of two of defendant’s co-workers at the Provo distribution company that on separate occasions defendant.had stated that he could not join the Mormon church because he had killed someone. The first, who testified to a conversation at the warehouse, asked defendant what was the reason, to which defendant responded that he was afraid he would be caught and so, though he considered backing out, had gone through with it. The second, who testified to a conversation at his own apartment, asked why he was being told about such things, to which defendant responded: “well, go ahead and try to pin it on me, you can’t because there isn’t a body so there wouldn’t be any evidence.”

Also introduced was a poem written by defendant, found during a consensual search of defendant’s apartment by the Utah police after the October 16, 1978 arrest, which read (punctuation added):

“To crush out a life with a hand or a heel;
“To be carelessly senseless and not even feel;
“To treat one as nothing and not even real;
“To be as a jackal, a thief who did steal.
“I was such a man, and it’s a part of me now.
“I was such a fool and can’t even tell how I did such a thing;
“Now, it weighs on my brow and I think of the peace such an act won’t allow.
“But still I live on and remember it well.
“Yet still I must live to remember the hell.
“I can never let go of the body that fell, and it tears me to pieces where my thoughts on this dwell.
“I can never be free of this feeling inside.
“I will never be able to successfully hide.
“And there is no way to share the tears that I’ve cried.
“So I now live for two; by my hand one has died.”

In addition to the confession and admissions, the People’s case included testimony of defendant’s former roommates at 77 Brooks Avenue, that they had never met Mary Robinson or seen the articles found by Ms. Hanrahan; of defendant’s landlord at that address, who testified Mary Robinson had never been a tenant there, that he cleaned out the apartment before defendant moved in and did not see those articles and that though defendant was obligated to give him a month’s notice prior to moving he gave only a week to 10 days’ notice; of several witnesses that Mary Robinson wore the wire frame glasses all the time and could not see well without them; and of unsuccessful efforts of the New York and Pennsylvania police to locate Mary Robinson’s body.

Prior to trial, defendant’s attorney moved to suppress his February 7 confession to the Provo, Utah, authorities. The motion was denied, the Trial Judge finding the confession completely voluntary and made in a knowing and reflective manner. No issue as to that ruling is involved on this appeal. When defendant thereafter moved for a trial order of dismissal at the close of the evidence, the Trial Judge reserved decision and the jury returned a verdict of guilty. Defendant then moved for judgment notwithstanding the verdict on the ground that there was no evidence other than defendant’s confession and admissions to establish either Mary Robinson’s death or any criminal act of defendant in relation to her. The Trial Judge reluctantly agreed after reviewing the trial transcript that there was neither direct proof of death nor proof that death was caused by a criminal act. He therefore dismissed the indictment.

The Appellate Division affirmed by a divided court. Two Judges writing for affirmance agreed with the Trial Judge that the requirement of CPL 60.50 had not been met, that section requiring either “direct proof of one or the other of the element of the corpus delicti or, in the absence of such proof, that the circumstantial evidence of the corpus delicti be ‘strong and unequivocal’ ” (84 AD2d, at p 50). They held CPL 60.50 to incorporate the requirement of Ruloff v People (18 NY 179, 192) that there be direct evidence of death when no body has been found and did not find in the Legislature’s failure to re-enact as part of the Criminal Procedure Law former section 1041 of the Penal Law (codifying the Ruloff rule) any indication of intention to lessen the proof required to convict. The Presiding Justice concurring disagreed as to the effect of the failure to reenact former section 1041 of the Penal Law, but found the evidence nevertheless insufficient. The two dissenters would have held the Ruloff rule abandoned and the circumstantial evidence sufficient, when considered in connection with the confession, to meet the requirements of the CPL. We agree with that conclusion and, therefore, reverse.

II

This case involves two related but distinct rules which are often confused.

A.

The first is the common-law rule enunciated in Ruloff v People (18 NY 179, 184, supra) that a defendant cannot be convicted of murder “without direct proof of the death, or of the violence or other act of the defendant which is alleged to have produced death.” Although the rule has often been said to preclude conviction for murder unless the body has been found, that is an oversimplification. Exceptions were recognized “ ‘as where the murder has been on the high seas, at a great distance from the shore, and the body had been thrown overboard, or where the body had been entirely consumed by fire, or so far that it was impossible to identify it’ ” (Ruloff supra, at p 188), in which case direct evidence of death and accounting for the absence of the body would suffice (ibid., at p 193). Moreover, the rule required no more than direct proof (ibid., at pp 193-196), which would, of course, include eyewitness testimony.

The rule was said to be “‘warranted by melancholy experience of the conviction and execution of supposed offenders, charged with the murder of persons who survived their alleged murderers’ ” (Ruloff, at p 194). It was “regarded as part of the humane policy of the common law, which affirms that it is better that many guilty should escape than that one innocent should suffer; and * * * it may have its probable foundation in the idea that where direct proof is absent as to both the fact of death and of criminal violence capable of producing death, no evidence can rise to the degree of moral certainty that the individual is dead by criminal intervention, or even lead by direct inference to those results” (ibid., at p 184).

First declared in Ruloff in 1858, the rule was incorporated into the Penal Code (§ 181) by chapter 384 of the Laws of 1882, and ultimately became section 1041 of the Penal Law of 1909. The statute was, however, narrowly construed, lest it open “a door of escape to that brutal courage which can mangle and burn the lifeless body” (People v Palmer, 109 NY 110, 112; see, also, People v Jennings, 40 AD2d 357, 362 [“the defendant should not be shielded * * * through the concealment of the body and its decomposition”], affd on opn at App Div 33 NY2d 880). In this century the rule, whether in its common-law or statutory form, has been widely criticized as one which rewards the professional or meticulous killer. It was not carried forward into the Penal Law of 1965 and remains the law in but a small minority of jurisdictions. We do not pause to consider whether the common-law precedent survives the enactment of the 1965 Penal Law revision, for even if that hypothesis could be sustained, the Ruloff rule is so clearly out of harmony with the general rule that the corpus delicti may be established by circumstantial evidence that we have no hesitancy in overruling it.

B.

The second is the confession-corroboration rule, also first declared as common-law precedent (People v Hennessey, 15 Wend 147; People v Badgley, 16 Wend 53; see Millstein, Confession Corroboration in New York: A Replacement for the Corpus Delicti Rule, 46 Fordham L Rev 1205, 1220), then incorporated in the 1881 Code of Criminal Procedure as section 395 and in 1970 carried forward into the present Criminal Procedure Law as section 60.50. That section proscribes conviction “of any offense solely upon evidence of a confession or admission made by him [the defendant] without additional proof that the offense charged has been committed.” The purpose sought to be served by its provision is “to avert The danger that a crime may be confessed when [in fact] no such crime * * * has been committed by any one’ ” (People v Reade, 13 NY2d 42, 45, quoting from People v Lytton, 257 NY 310, 314). It is said to have stemmed from a general distrust of extrajudicial confessions, which might be erroneously reported or construed, involuntary, mistaken or the workings of a disturbed or insane mind, as well as from rare but widely reported cases in which after conviction of the defendant his “victim” returned alive (People v Murray, 40 NY2d 327, 331-332, cert den 430 US 948).

C.

Thus, though the two rules shared as common background the fear of convicting the innocent, the now-defunct Ruloff role required no more than direct proof of death, and would have been satisfied by a defendant’s confession or admission, either of which constitutes direct eyewitness testimony of the defendant himself (People v Licitra, 47 NY2d 554, 559; see People v Bretagna, 298 NY 323, 326, cert den 336 US 919; Millstein, op. cit., p 1208, n 25). What remains, then, when there is a confession or admission, is only CPL 60.50’s requirement of “additional proof that the offense charged has been committed,” that is to say, that there be some evidence apart from defendant’s confession or admission, to establish that fact.

It is not enough that the additional proof partially corroborates the truthfulness of the confession (People v Cuozzo, 292 NY 85, 93; see People v Jennings, 40 AD2d, at p 361, n 3). The confession may, however, “be used as a key or clue to the explanation of circumstances, which, when so explained, establish the criminal act” (People v Cuozzo, supra, at p 92).

Under CPL 60.50 no additional proof need connect the defendant with the crime (People v Murray, 40 NY2d 327, 332, supra; see People v Daniels, 37 NY2d 624, 629; Richardson, Evidence [Prince, 10 ed], § 553; Fisch, New York Evidence [2d ed], § 873). Evidence in addition to the confession is, moreover, sufficient “even though it fails to exclude every reasonable hypothesis save that of guilt” (People v Cuozzo, 292 NY 85, 92, supra). Indeed, the statute is satisfied “by the production of some proof, of whatever weight, that a crime was committed by someone” (see People v Daniels, 37 NY2d 624, 629, supra), and conduct of defendant indicating a consciousness of guilt, such as presence at the scene, proof of motive or flight, may “be held to constitute the essential additional proof” (People v Reade, 13 NY2d 42, 46, supra). In final analysis, of course', the additional evidence of the crime together with the confession must be sufficient to establish defendant’s guilt beyond a reasonable doubt (People v Conroy, 287 NY 201, 202), but “‘when, in addition to the confession, there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime,.and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for a non-compliance with the requirement of the statute’ ” (People v Reade, supra, at p 45, quoting from People v Jaehne, 103 NY 182, 199-200).

Ill

Measured against that template, the evidence was sufficient to present a question for the jury, notwithstanding that Mary Robinson’s body has not been found and that, apart from defendant’s confession and admissions, there was no direct proof of death or of criminal agency.

The circumstances of Mary Robinson’s disappearance not only meet Reade’s “calculated to suggest” standard, they are strongly suggestive of the commission of crime, for the evidence is wholly inconsistent with the possibility that she left Rochester of her own free will. Since the early morning hours of June 10, 1976, she has never been heard from. She was a lifelong resident of Rochester, the owner of property in that city, and had strong social ties in the community. That nothing but the articles she wore or carried on June 9 were missing from her apartment, that her glasses, which she regularly wore, purse, wallet and shoes were not with her but in defendant’s possession, and that the family picture she treasured was still on her night table provide sufficient evidence that she did not intentionally leave Rochester. Indeed, the fact that she had communicated three times during the evening of June 9 and early morning of June 10 with her husband, who expected to hear further from her, is inconsistent with an intent on her part to leave. Of some significance also in view of the fact that she had worked in several legitimate positions is the total absence of any activity in her Social Security account after her disappearance, although the fact that she had become a prostitute just before she disappeared reduces the weight that can be given to that factor.

Equally sufficient is the evidence that her disappearance was the result of criminal agency. Despite evidence ruling out any connection, other than through defendant, of Mary Robinson with 77 Brooks Avenue, her purse, sandals, wallet, glasses, identification card and other personal effects were found in his apartment there within a week after her disappearance and the explanation he offered Ms. Hanrahan for their presence was proven false. Although he had given no indication of an intention to leave Rochester and, indeed, had preregistered for the fall 1976 semester at Monroe Community College, he left for Arizona precipitously within a week to 10 days after Mary Robinson’s disappearance and gave evidence of being emotionally overwrought before doing so. Defendant argues that the breakup of his relationship with Ms. Hanrahan could account for that, but the jury could have found from her testimony that their relationship was not going well before she left on June 1 for Cape Cod, the more particularly so in view of the présence of Mary Robinson’s clothing and personal effects in defendant’s apartment.

To be sure, the evidence other than the confession does not establish Mary Robinson’s death or that defendant was the cause of it. But the question with respect to circumstantial evidence is “whether common human experience would lead a reasonable man, putting his mind to it, to reject or accept the inferences asserted for the established facts” (People v Wachowicz, 22 NY2d 369, 372; accord People v Kennedy, 47 NY2d 196, 203). The evidence reviewed above, when read with defendant’s confession, the poem he composed and his admissions to his two Provo coworkers, sufficiently establishes both Mary Robinson’s death and defendant’s strangulation of her as the cause of it to take the issues to the jury. More is not required for, as we said in People v Brasch (193 NY 46, 60-61), “It would shock common sense to say in the light of the confession that all of these circumstances do not in any degree tend to prove a crime, and that the requirements of the statute have not been satisfied, and that the defendant should be discharged because some other impossible evidence has not been produced.”

For the foregoing reasons, the order of the Appellate Division should be reversed and the verdict reinstated.

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

Order reversed, etc.

      . (See Perkins, The Corpus Delicti of Murder, 48 Va L Rev 173, 183: “Time and again courts have gone out of their way to emphasize that finding the dead body of the victim is not indispensible in a murder prosecution.”)

      . The section read: “No person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed and the fact of killing by the defendant, as alleged, are each established as independent.facts; the former by direct proof and the latter beyond a reasonable doubt.”

      . Because that is so, our overruling of Ruloff (if its rule could be said to have survived enactment of the 1965 Penal Law) creates no ex post facto infirmity. R uloff’s direct evidence requirement was fully satisfied by defendant’s confessions and admissions.

      . The absence of a requirement that proof connect the defendant was not a legislative oversight. Compare CPL 60.22, the accomplice corroboration rule, which requires “evidence tending to connect the defendant with the commission of such offense.”


author: Fuchsberg, J.

text:
    T. W. Oil, Inc., Formerly Known as Joc Oil USA, Inc., Respondent, v Consolidated Edison Company of New York, Inc., Appellant.
    Argued November 10, 1982
    decided December 15, 1982

      POINTS OF COUNSEL

      Barry S. Goldstein, Ernest J. Williams, Sheila Solomon Rosenrauch and Patricia M. Fruehling for appellant.
    I. The trial court’s disregard of the jury’s factual findings was error and deprived defendant of its right to trial by jury. (Brandt Corp. v Warren Automatic Controls Corp., 37 AD2d 563; Muth v J & T Metal Prods. Co., 74 AD2d 898, 51 NY2d 745; Jeffries v Long Is. R. R. Co., 15 AD2d 356; Diaz v Surface Transp., 18 AD2d 653; Deghieri v Brooklyn Daily Eagle, 136 Misc 600; Vaughn-Rees v Connolly, 30 AD2d 785, 27 NY2d 901; Brockhurst v Ryan, 2 Misc 2d 747; McGregor v Dimou, 101 Misc 2d 756; White Devon Farm v Stahl, 88 Misc 2d 961; Vathy v Rupp Rental Corp., 43 AD2d 892.) II. Subdivision (2) of section 2-508 of the Uniform Commercial Code does not provide plaintiff seller with the right to cure a nonconforming tender after the contract date. (Bartus v Riccardi, 55 Misc 2d 3.) III. Damages should be calculated as the difference between the contract price and the resale price of the rejected substitute shipment. The court erred when it calculated damages based on the resale price of the rejected nonconforming cargo. (Garfinkel v Lehman Floor Covering Co., 60 Misc 2d 72; Cole v Melvin, 441 F Supp 193.)

      David L. Maloof, Francis J. McCaffrey, James J. Ruddy and Daniel G. McDermott for respondent.
    I. Con Edison is liable for breach of contract. (Belden-Stark Brick Corp. v Rosen & Sons, 39 AD2d 534, 31 NY2d 884; Wilson Trading Corp. v David Ferguson, Ltd., 23 NY2d 398; Wigand v Bachmann-Bechtel Brewing. Co., 222 NY 272; Metro-Goldwyn-Mayer, Inc. v Scheider, 40 NY2d 1069; May Metropolitan Corp. v May Oil Burner Corp., 290 NY 260; Railway Supply & Mfg. v Safie Bros. Co., 204 F Supp 925; Bond Elec. Corp. v Gold Seal Elec. Co., 271 NY 461.) II. The trial court’s ruling on the relevancy of the jury’s answer to question No. 4 was proper and should be sustained. (Hunt v Bankers & Shippers Ins. Co. of N. Y., 50 NY2d 938.) III. Con Edison is bound by the damages as fixed by the trial court. (Anness v Seaboard Trading Co., 230 App Div 69; Di Bernardo v Gunneson, 65 AD2d 828; Doherty v Aaron Mach. Co., 18 AD2d 915; Martin v City of Cohoes, 37 NY2d 162; Brady v Nally, 151 NY 258; Sinsheimer v Underpinning & Foundation Co., 178 App Div 495, 226 NY 646; Watts v Phillips-Jones Corp., 211 App Div 523, 242 NY 557; Matter of Angel Fabrics (Cravat Pierre], 51 AD2d 951; Glow-Brite Elec. Serv. v Frocol Rest. Corp., 56 AD2d 909; Barile v Wright, 256 NY 1.)
   OPINION OF THE COURT

Fuchsberg, J.

In the first case to wend its way through our appellate courts on this question, we are asked, in the main, to decide whether a seller who, acting in good faith and without knowledge of any defect, tenders nonconforming goods to a buyer who properly rejects them, may avail itself of the cure provision of subdivision (2) of section 2-508 of the Uniform Commercial Code. We hold that, if seasonable notice be given, such a seller may offér to cure the defect within a reasonable period beyond the time when the contract was to be performed so long as it has acted in good faith and with a reasonable expectation that the original goods would be acceptable to the buyer.

The factual background against which we decide this appeal is based on either undisputed proof or express findings at Trial Term. In January, 1974, midst the fuel shortage produced by the oil embargo, the plaintiff (then known as Joe Oil USA, Inc.) purchased a cargo of fuel oil whose sulfur content was represented to it as no greater than 1%. While the oil was still at sea en route to the United States in the tanker M T Khamsin, plaintiff received a certificate from the foreign refinery at which it had been processed informing it that the sulfur content in fact was .52%. Thereafter, on January 24, the plaintiff entered into a written contract with the defendant (Con Ed) for the sale of this oil. The agreement was for delivery to take place between January 24 and January 30, payment being subject to a named independent testing agency’s confirmation of quality and quantity. The contract, following a trade custom to round off specifications of sulfur content at, for instance, 1%, .5% or .3%, described that of the Khamsin oil as .5%. In the course of the negotiations, the plaintiff learned that Con Ed was then authorized to buy and burn oil with a sulfur content of up to 1% and would even mix oils containing more and less to maintain that figure.

When the vessel arrived, on January 25, its cargo was discharged into Con Ed storage tanks in Bayonne, New Jersey. In due course, the independent testing people reported a sulfur content of .92%. On this basis, acting within a time frame whose reasonableness is not in question, on February 14 Con Ed rejected the shipment. Prompt negotiations to adjust the price failed; by February 20, plaintiff had offered a price reduction roughly responsive to the difference in sulfur reading, but Con Ed, though it could use the oil, rejected this proposition out of hand. It was insistent on paying no more than the latest prevailing price, which, in the volatile market that then existed, was some 25% below the level which prevailed when it agreed to buy the oil.

The very next day, February 21, plaintiff offered to cure the defect with a substitute shipment of conforming oil scheduled to arrive on the S. S. Appollonian Victory on February 28. Nevertheless, on February 22, the very day after the cure was proffered, Con Ed, adamant in its intention to avail itself of the intervening drop in prices, summarily rejected this proposal too. The two cargos were subsequently sold to third parties at the best price obtainable, first that of the Appollonian and, sometime later, after extraction from the tanks had been accomplished, that of the Khamsin.

There ensued this action for breach of contract, which, after a somewhat unconventional trial course, resulted in a nonjury decision for the plaintiff in the sum of $1,385,512.83, essentially the difference between the original contract price of $3,360,667.14 and the amount received by the plaintiff by way of resale of the Khamsin oil at what the court found as a matter of fact was a negotiated price which, under all the circumstances, was reasonably procured in the open market. To arrive at this result, the Trial Judge, while ruling against other liability theories advanced by the plaintiff, which, in particular, included one charging the defendant with having failed to act in good faith in the negotiations for a price adjustment on the Khamsin oil (Uniform Commercial Code, § 1-203), decided as a matter of law that subdivision (2) of section 2-508 of the Uniform Commercial Code was available to the plaintiff even if it had no prior knowledge of the nonconformity. Finding that in fact plaintiff had no such belief at the time of the delivery, that what turned out to be a .92% sulfur content was “within the range of contemplation of reasonable acceptability” to Con Ed, and that seasonable notice of an intention to cure was given, the court went on to hold that plaintiff’s “reasonable and timely offer to cure” was improperly rejected (sub nom. Joc Oil USA v Consolidated Edison Co. of N. Y., 107 Misc 2d 376, 390 [Shanley N. Egeth, J.]). The Appellate Division having unanimously affirmed the judgment entered on this decision, the case is now here by our leave (CPLR 5602, subd [a], par 1, cl [i]).

In support of its quest for reversal, the defendant now asserts that the trial court erred (a) in ruling that the verdict on a special question submitted for determination by a jury was irrelevant to the decision of this case, (b) in failing to interpret subdivision (2) of section 2-508 of the Uniform Commercial Code to limit the availability of the right to cure after date of performance to cases in which the seller knowingly made a nonconforming tender and (c) in calculating damages on the basis of the resale of the nonconforming cargo rather than of the substitute offered to replace it. For the reasons which follow, we find all three unacceptable.

I

Initially, we deal with the threshold contention over the special verdict, which, though not complex, if erroneously decided below, would require reversal. A product of an ad hoc pretrial arrangement peculiar to this case, on analysis, however, it presents but another example of a decision by opposing parties in a civil case to chart their own litigation course, to which, unless public policy is affronted, the law ordinarily raises no obstacle (Martin v City of Cohoes, 37 NY2d 162,165-166). Here, by stipulation, the parties, who, of course, were free to waive a jury entirely, in effect relegated the special verdict, which otherwise could not be set aside merely because the court disagreed with it (Vaughn-Rees v Connolly, 30 AD2d 785, affd 27 NY2d 901), to a position tantamount to that of an advisory verdict (e.g., McKenna v Meehan, 248 NY 206, 214).

This came about when the parties, finding themselves in accord on most of the facts, mutually agreed that the jury only be called upon to answer four stipulated questions, and then, by the close of the testimony, went on to further limit the jury’s scope by an understanding, as they read it into the record, “that in applying the law to the facts for an ultimate determination that the Court will consider the stipulated set of facts which have been presented in writing by counsel, the resolution of the specific questions by the jury as submitted to the jury, and counsel further stipulate that, if any other necessary fact is required to enable the proper application of the law to the facts of this case and such fact is not covered by either the stipulation of facts of the parties or the finding of the jury, and if further there is testimony in the record from which a finding could be made or in testimony or evidence of any kind from which a finding of such necessary fact can be made, the parties do hereby authorize the Court nonjury to make such determination as a prerequisite to the application of the law”.

That the court so understood its responsibility is clear from the language it employed in disregarding the verdict. For the only one of the four questions of which the appellant complains, reads as follows: “Q. Did Con Edison act reasonably in rejecting the substitute shipment which was offered by Joe Oil USA on February 21, 1974, for a scheduled February 28, 1974 arrival?” “Jury — ‘Yes’ ’’. And the court’s words, in ruling, were: “The parties formed this and the other submission to the jury pursuant to their understanding that the factual verdicts would be afforded any appropriate significance when thereafter the court applied the applicable law. It was clearly understood and agreed that their mutually framed narrow factual questions would be submitted to the jury without any reference to applicable provisions or requirements of the Uniform Commercial Code, and that the court would thereafter apply the law as mandated by the code to all of the facts of the case. In accordance with this agreed procedure no instruction or information was given to the jury as to the rights or duties of the parties under the statute * * * The jury finding of reasonable rejection can have no meaning without the necessary absent statutory frame of reference” (107 Misc 2d, at p 385 [emphasis added]). The code reference in this statement, as made clear in the extensive writing in which the Trial Judge handed down his decision, was to subdivision (2) of section 2-508. As explained in part II of this opinion, while a buyer’s rejection of a nonconforming tender provides the occasion for a seller’s invocation of the statute, the buyer’s rejection is not conditioned by any requirement that it have been a reasonable or unreasonable one. Rather, the word “reasonable” is employed only to qualify a seller’s conduct once the seller invokes the statute. A finding by the jury, therefore, that the buyer’s conduct was reasonable was irrelevant to the application of section 2-508. Consequently, it was not error to ignore the jury’s answer to the question.

As a final word on this issue, we also add that, to the extent that Con Ed now belabors the trial court for refusing to charge the provisions of subdivision (2) of section 2-508, suffice it to say that, since defense counsel did not join either in plaintiff’s request that the statute be read to the jury or in the consequent exception to the court’s refusal to do so, the matter was not preserved for our review (Hunt v Bankers & Shippers Ins. Co. of N. Y., 50 NY2d 938, 940; CPLR 4017, 5501, subd [a], par 3).

II

We turn then to the central issue on this appeal: Fairly interpreted, did subdivision (2) of section 2-508 of the Uniform Commercial Code require Con Ed to accept the substitute shipment plaintiff tendered? In approaching this question, we, of course, must remember that a seller’s right to cure a defective tender, as allowed by both subdivisions of section 2-508, was intended to act as a meaningful limitation on the absolutism of the old perfect tender rule, under which, no leeway being allowed for any imperfections, there was, as one court put it, just “no room * * * for the doctrine of substantial performance” of commercial obligations (Mitsubishi Goshi Kaisha v Aron & Co., 16 F2d 185, 186 [Learned Hand, J.]; see Note, Uniform Commercial Code, § 2-508; Seller’s Right to Cure Non-Conforming Goods, 6 Rutgers — Camden LJ 387-388).

In contrast, to meet the realities of the more impersonal business world of our day, the code, to avoid sharp dealing; expressly provides for the liberal construction of its remedial provisions (§ 1-102) so that “good faith” and the “observance of reasonable commercial standards of fair dealing” be the rule rather than the exception in trade (see § 2-103, subd [1], par [b]), “good faith” being defined as “honesty in fact in the conduct or transaction concerned” (Uniform Commercial Code, § 1-201, subd [19]). As to section 2-508 in particular, the code’s Official Comment advises that its mission is to safeguard the seller “against surprise as a result of sudden technicality on the buyer’s part”. (Uniform Commercial Code, §2-106, Comment 2; see, also, Peters, Remedies for Breach of Contracts Relating to the Sale of Goods under the Uniform Commercial Code: A Roadmap for Article Two, 73 Yale LJ 199, 210; 51 NY Jur, Sales, § 101, p 41).

Section 2-508 may be conveniently divided between provisions for cure offered when “the time for performance has not yet expired” (subd [1]), a precode concept in this State (Lowinson v Newman, 201 App Div 266), and ones which, by newly introducing the possibility of a seller obtaining “a further reasonable time to substitute a conforming tender” (subd [2]), also permit cure beyond the date set for performance. In its entirety the section reads as follows:

“(1) Where any tender or delivery by the seller is rejected because non-conforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.
“(2) Where the buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender.”

Since we here confront circumstances in which the conforming tender came after the time of performance, we focus on subdivision (2). On its face, taking its conditions in the order in which they appear, for the statute to apply (1) a buyer must have rejected a nonconforming tender, (2) the seller must have had reasonable grounds to believe this tender would be acceptable (with or without money allowance), and (3) the seller must have “seasonably” notified the buyer of the intention to substitute a conforming tender within a reasonable time.

In the present case, none of these presented a problem. The first one was easily met for it is unquestioned that, at .92%, the sulfur content of the Khamsin oil did not conform to the .5% specified in the contract and that it was rejected by Con Ed. The second, the reasonableness of the seller’s belief that the original tender would be acceptable, was supported not only by unimpeached proof that the contract’s .5% and the refinery certificate’s .52% were trade equivalents, but by testimony that, by the time the contract was made, the plaintiff knew Con Ed burned fuel with a content of up to 1%, so that, with appropriate price adjustment, the Khamsin oil would have suited its needs even if, at delivery, it was, to the plaintiff’s surprise, to test out at .92%. Further, the matter seems to have been put beyond dispute by the defendant’s readiness to take the oil at the reduced market price on February 20. Surely, on such a record, the trial court cannot be faulted for having found as a fact that the second condition too had been established.

As to the third, the conforming state of the Appollonian oil is undisputed, the offer to tender it took place on February 21, only a day after Con Ed finally had rejected the Khamsin delivery and the Appollonian substitute then already was en route to the United States, where it was expected in a week and did arrive on March 4, only four days later than expected. Especially since Con Ed pleaded no prejudice (unless the drop in prices could be so regarded), it is almost impossible, given the flexibility of the Uniform Commercial Code definitions of “seasonable” and “reasonable” (n 7, supra), to quarrel with the finding that the remaining requirements of the statute also had been met.

Thus lacking the support of the statute’s literal language, the defendant nonetheless would have us limit its application to cases in which a seller knowingly makes a nonconforming tender which it has reason to believe the buyer will accept. For this proposition, it relies almost entirely on a critique in Nordstrom, Law of Sales (§ 105), which rationalizes that, since a seller who believes its tender is conforming would have no reason to think in terms of a reduction in the price of the goods, to allow such a seller to cure after the time for performance had passed would make the statutory reference to a money allowance redundant. Nordstrom, interestingly enough, finds it useful to buttress this position by the somewhat dire prediction, though backed by no empirical or other confirmation, that, unless the right to cure is confined to those whose nonconforming tenders are knowing ones, the incentive of sellers to timely deliver will be undermined. To this it also adds the somewhat moralistic note that a seller who is mistaken as to the quality of its goods does not merit additional time (Nordstrom, loc. cit.). Curiously, recognizing that the few decisions extant on this subject have adopted a position opposed to the one for which it contends, Con Ed seeks to treat these as exceptions rather than exemplars of the rule (e.g., Wilson v Scampoli, 228 A2d 848 [DC App] [goods obtained by seller from their manufacturer in original carton resold unopened to purchaser; seller held within statute though it had no reason to believe the goods defective]; Appleton State Bank v Lee, 33 Wis 2d 690 [seller mistakenly delivered sewing machine of wrong brand but otherwise identical to. one sold; held that seller, though it did not know of its mistake, had a right to cure by substitution]).

That the principle for which these cases stand goes far beyond their particular facts cannot be gainsaid. These holdings demonstrate that, in dealing with the application of subdivision (2) of section 2-508, courts have been concerned with the reasonableness of the seller’s belief that the goods would be acceptable rather than with the seller’s pretender knowledge or lack of knowledge of the defect (Wilson v Scampoli, supra; compare Zabriskie Chevrolet v Smith, 99 NJ Super 441).

It also is no surprise then that the afore-mentioned decisional history is a reflection of the mainstream of scholarly commentary on the subject (e.g., 1955 Report of NY Law Rev Comm, p 484; White & Summers, Uniform Commercial Code [2d ed], § 8-4, p 322; 2 Anderson, Uniform Commercial Code [2d ed], § 2-508:7; Hogan, The Highways and Some of the Byways in the Sales and Bulk Sales Articles of the Uniform Commercial Code, 48 Cornell LQ 1, 12-13; Note, Uniform Commercial Code, § 2-508: Seller’s Right to Cure Non-Conforming Goods, 6 Rutgers — Camden LJ 387, 399; Note, Commercial Law — The Effect of the Seller’s Right to Cure on the Buyer’s Remedy of Rescission, 28 Ark L Rev 297, 302-303).

White and Summers, for instance, put it well, and bluntly. Stressing that the code intended cure to be “a remedy which should be carefully cultivated and developed by the courts” because it “offers the possibility of conforming the law to reasonable expectations and of thwarting the chiseler who seeks to escape from a bad bargain” (op. cit., at pp 322-324), the authors conclude, as do we, that a seller should have recourse to the relief afforded by subdivision (2) of section 2-508 of the Uniform Commercial Code as long as it can establish that it had reasonable grounds, tested objectively, for its belief that the goods would be accepted (ibid., at p 321). It goes without saying that the test of reasonableness, in this context, must encompass the concepts of “good faith” and “commercial standards of fair dealing” which permeate the code (Uniform Commercial Code, § 1-201, subd [19]; §§1-203, 2-103, subd [1], par [b]).

Ill

As to the damages issue raised by the defendant, we affirm without reaching the merits. At no stage of the proceedings before the trial court did the defendant object to the plaintiff’s proposed method for their calculation, and this though the plaintiff gave ample notice of that proposal by means of a preliminary statement and pretrial memorandum filed with the court. So complete was defendant’s acquiescence in the theory thus advanced that the plaintiff was permitted to introduce its proof of the Khamsin resale alone, and without opposition. Furthermore, in consensually submitting the four jointly framed advisory questions that went to the jury, the language of one of them, which was damages-related, indicates that both parties were acting on the assumption that the Khamsin oil was the one with which the court was to be concerned. And, even after the decision at nisi prius revealed that the Judge had acted on such an assumption, so far as the record shows, no motion was ever made to correct it.

It has long been the law that agreement on a theory of damages at trial, even if only implied, must control on appeal (see Martin v City of Cohoes, 37 NY2d 162,165-166, supra; Hartshorn v Chaddock, 135 NY 116, 123; 10 Carmody-Wait 2d, NY Prac, § 70:419, p 690).

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

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

Order affirmed.

      . Confirmatorily, Con Ed’s brief describes .92% oil as “nominally” 1% oil.

      . The tanks already contained some other oil, but Con Ed appears to have had no concern over the admixture of the differing sulfur contents. In any event, the efficacy of the independent testing required by the contract was not impaired by the commingling.

      . Most of the Khamsin oil was drained from the tanks and sold at $10.75 per barrel. The balance was retained by Con Ed in its mixed form at $10.45 per barrel. The original price in January had been $17,875 per barrel.

      . The plaintiff originally also sought an affirmative injunction to compel Con Ed to accept the Khamsin shipment or, alternatively, the Appollonian substitute. However, when a preliminary injunction was denied on the ground that the plaintiff had an adequate remedy at law, it amended its complaint to pursue the latter remedy alone.

      . These circumstances included the fact that the preliminary injunction was not denied until April so that, by the time the Khamsin oil was sold in May, almost three months had gone by since its rejection.

      . Of the four questions submitted to the jury, two bear no relationship to the theory on which the plaintiff succeeded, and the third, likewise disregarded by the trial court, supported the court’s damages disposition.

      . Essentially a factual matter, “seasonable” is defined in subdivision (3) of section 1-204 of the Uniform Commercial Code as “at or within the time agreed or if no time is agreed at or within a reasonable time”. At least equally factual in character, a “reasonable time” is left to depend on the “nature, purpose and circumstances” of any action which is to be taken (Uniform Commercial Code, § 1-204, subd [2]).

      . The premise for such an argument, which ignores the policy of the code to prevent buyers from using' insubstantial remediable or price adjustable defects to free themselves from unprofitable bargains (Hawkland, Sales and Bulk Sales Under the Uniform Commercial Code, pp 120-122), is that the words “with or without money allowance” apply only to sellers who believe their goods will be acceptable with such an allowance and not to sellers who believe their goods will be acceptable without such an allowance. But, since the words are part of a phrase which speaks of an otherwise unqualified belief that the goods will be acceptable, unless one strains for an opposite interpretation, we find insufficient reason to doubt that it intends to include both those who find a need to offer an allowance and those who do not.

      . The only New York case to deal with this section involved a seller who knowingly tendered a “newer and improved version of the model that was actually ordered” on the contract delivery date. The court held he had reasonable grounds to believe the buyer would accept the newer model (Bartus v Riccardi, 55 Misc 2d 3 [Utica City Ct, Hymes, J.]).

      . Except indirectly, on this appeal we do not deal with the equally important protections the code affords buyers. It is as to buyers as well as sellers that the code, to the extent that it displaces traditional principles of law and equity (§ 1-103), seeks to discourage unfair or hypertechnical business conduct bespeaking a dog-eat-dog rather than a live-and-let-live approach to the marketplace (e.g., §§ 2-314, 2-315, 2-513, 2-601, 2-608). Overall, the aim is to encourage parties to amicably resolve their own problems (Ramirez v Autosport, 88 NJ 277, 285; compare Restatement, Contracts 2d, Introductory Note to chapter 10, p 194 [“the wisest course is ordinarily for the parties to attempt to resolve their differences by negotiations, including clarification of expectations [and] cure of past defaults”]).