author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Thomas Riley, Appellant. The People of the State of New York, Respondent, v Oscar Rodriguez, Appellant.
    Argued October 5, 1987;
    decided November 25, 1987

      POINTS OF COUNSEL

      Betty L. Atlas and Philip L. Weinstein for appellant in the first above-entitled action.

      Robert M. Morgenthau, District Attorney (Vija Kemanis and Amyjane Rettew of counsel), for respondent in the first above-entitled action.

      Donald I. Marlin for appellant in the second above-entitled action.

      Robert M. Morgenthau, District Attorney (Barbara A. Sheehan and Mark Dwyer of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Bellacosa, J.

In two distinct cases, defendants appeal, challenging the admission of allegedly suggestive station house showup identifications and resultant in-court identifications made at trial. The showup identification evidence in each case was suggestive as a matter of law and was erroneously admitted at the respective trials. Independent source evidence was not presented at the suppression hearings in either case as a matter of prosecutorial preference, so the affected in-court identifications were necessarily tainted and erroneously admitted as well.

I. People v Riley

On March 9, 1984, Ethel Glover was approached by two men with a gun in the hallway of her apartment building. The men took her jewelry, her black pocketbook and a black .duffel bag. As the two men ran from the building, Darryl Marant, a friend of Glover, saw the two flee in a blue Lincoln Continental. He noted the license plate number. Glover and Marant immediately notified the police.

A description of the car was communicated over police radio and two officers in the vicinity of Glover’s apartment spotted a car matching the broadcast description. The officers approached and ordered defendant Riley and his codefendant Jones out of the car. A frisk revealed an imitation revolver and some jewelry. The police also recovered two black bags from the car.

In the meantime, Glover and Marant, standing outside the apartment house waiting for the police to arrive, saw a police officer approaching. They stopped him and, while he was writing down the report, a call came over the radio indicating that the police had just caught "the two guys”. The officer then drove Glover and Marant to the station house. As they pulled up, Glover saw two officers get out of a car holding two black bags. The officers held up the bags and asked Glover if they were hers. She said they were.

Inside the station house, Riley and Jones were being held in a room while their arrests were being processed. The recovered items were laid out on a table near the suspects. The police ushered Glover into the processing room, where she identified the stolen property and the gun. The police then asked her if there was anyone in the room she recognized. She pointed to Riley and Jones, the only nonuniformed persons in the room. Marant subsequently made the same identification under identical circumstances.

At the Wade hearing (388 US 218) neither the victim nor the eyewitness testified. Based on the sole testimony of the arresting officer, the trial court ruled that the showup identifications were reliable because they were made soon after the crime took place. At trial, evidence of the showup identification was introduced and the victim and eyewitness were also permitted to make in-court identifications of the defendant. Defendant was convicted and the Appellate Division affirmed, stating, "in view of the overwhelming evidence of guilt, reversal is not warranted”. (127 AD2d 458.)

II. People v Rodriguez

Shortly after midnight on May 18, 1983, defendant Rodriguez and two others, Garcia and Laffman, hailed a taxicab in New Jersey and directed it into New York City. When it came time for the trio to exit the cab, they overpowered the driver Malik, and forced him at knife point into the back seat. They subsequently drove the cab around Manhattan, alternately threatening, beating and stabbing Malik in the leg when he was unable to produce more than $35. They then locked Malik in the trunk of the cab and, over the next three hours, drove to various banks attempting to get money with Malik’s credit card before finally returning to New Jersey. Malik pried the trunk open enough to stick his fingers out and get the attention of a motorist who alerted the police. A high speed chase ensued, during which one of the pursuing officers had an extended opportunity to observe Laffman in the back seat of the cab. At 4:05 a.m., the participants abandoned the cab. Malik was freed from the trunk, taken to a hospital for treatment of the stab wounds and then to the Bloomfield, New Jersey, State Police Barracks.

Malik was present when the detective interviewing him was informed by another officer that two suspects were being brought to the barracks. One of the transport officers was the officer involved in the chase and he conclusively identified Laffman. When Laffman and Rodriguez arrived, the interviewing detective had Malik come to the door of his office where they could be seen in the nearby lobby. Malik simultaneously identified them as two of the participants in the crime. The two handcuffed suspects, in civilian clothes, were accompanied only by two uniformed officers. The showup identification occurred three to four hours after the criminal episode had ended.

A pretrial Wade (388 US 218, supra) hearing was held to determine the admissibility of the showup identification. Testimony was given by the officer who identified Laffman in the chase and by the detective who was present at the showup. The detective testified that he decided on his own not to arrange a lineup. Malik did not testify at the hearing. At the conclusion of the hearing, the court found that no impropriety tainted the showup; that there were no acts of suggestiveness by the police; that there was sufficient proximity in time and place between the crime and the showup to hold that the showup was justifiable; that the prompt showup ensured that individuals unrelated to the crime would not be improperly detained and minimized the possibility of irreparable misidentification.

Evidence of the showup and of an in-court identification by the victim taxi driver Malik were admitted at the jury trial. Rodriguez was convicted of robbery in the first degree, robbery in the second degree, kidnapping in the second degree, and assault in the second degree. The Appellate Division affirmed.

III. THE PRECINT SHOWUPS

Showup identifications, by their nature suggestive, are strongly disfavored but are permissible if exigent circumstances require immediate identification (People v Rivera, 22 NY2d 453), or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately (People v Love, 57 NY2d 1023). Generally, a showup identification will be inadmissible when "there was no effort to make the least provision for a reliable identification and the combined result of the procedures employed” establish that the showup was unduly suggestive (People v Adams, 53 NY2d 241, 249).

Unreliability of the most extreme kind infects showup identifications of arrested persons held at police stations, and the evidence will be inadmissible as a matter of law unless exigency warrants otherwise.

In Adams, this court referred to the indicia of the precinct showup as the "ideal of suggestibility” (id., at 249). The indicia were multiple witnesses, who had been informed that the robbers were in custody, simultaneously viewing at a station house multiple suspects who were physically restrained by uniformed police officers with no other persons dressed in plain clothes present, at a time and place which were not proximate to the crime, when there was no evidence that a lineup would have been unduly burdensome (id., at 248-249). While Adams had two additional exploitive factors not present in the instant cases — a showup before multiple witnesses who tend to reinforce one another psychologically and the fact that Adams, who was arrested at home, was subject to a showup with a codefendant arrested at the scene of the crime, increasing the likelihood of a misidentification by association — there was heightened suggestiveness in these two cases not present in Adams. In Riley, the stolen property and the gun were set on a table near the suspects; in Rodriguez, the defendants were handcuffed at the time of the showup.

Additionally, in both these cases the police explanation for arranging suggestive station house showups is not supportable and they failed to establish that lineups would have been unduly burdensome. In Riley, the only proffered reason for failing to conduct a lineup was that the station house was undergoing renovation. In Rodriguez, the justification for not conducting a lineup was to minimize the length of detention of suspects who may have been innocent. As a matter of law, neither excuse constitutes "exigency” and they are insufficient to establish that it would have been unduly burdensome to conduct a reasonably reliable lineup identification procedure instead of resorting to inherently suggestive station house showups. The patently exploitive and suggestive circumstances presented in each case demonstrate the vice of such procedures and reinforce the decision we reach.

The showup evidence in each case was inadmissible because "under no view of the evidence could it be said that the station house identification was not suggestive” (People v Adams, 53 NY2d 241, 248, supra). We hold that it was reversible error to admit the showup identification evidence in these cases because, under Adams, these precinct showup identifications are unreliable as a matter of law and law enforcement authorities may not resort to precious parsing and fact patterns differentiations.

The importance of identification evidence is, of course, self-evident. But then so, too, are the weaknesses and dangers of improper identification evidence. "The influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other factor — perhaps it is responsible for more such errors than all other factors combined” (Wall, Eye-Witness Identification in Criminal Cases, at 26, quoted in United States v Wade, 388 US 218, 229, supra). The complex psychological interplay and dependency of erroneously induced identification evidence via showups, lineups, various bolsterings and the like must be vigilantly guarded against because this kind of error drives right into the heart of the adjudicative guilt or innocence process affecting the person accused and identified. Thus, constitutional, statutory and decisional safeguards have been erected essentially to insure reliability of this most potent evidence (United States v Wade, id.; Stovall v Denno, 388 US 293; People v Adams, 53 NY2d 241, supra).

It is with this foundation that we build on the Adams rationale and strike down in each case police station showup identification evidence. We move to this conclusion because precinct showup procedures should have almost no place in acceptable identification procedures, unless exigency warrants them. The People must bear the heavy burden of overcoming the inevitable suggestibility of the combined setting and showup. Avoiding the threshold locational impediment does not end the prosecutor’s burden, however, because apart from showing the emergent need to conduct a showup in a precinct at all, the prosecution must also address the inextricably implicated companion problem — the inherent unreliability of a showup itself. They must therefore also demonstrate to a court what steps were taken to insure that the identifications in the particular case were free of both the basic unreliable suggestiveness and of exacerbating exploitation.

The inadmissibility of the showup identification evidence alone, however, does not preclude admission of identifications subsequent to the showup ones if they, in turn, are justified by independent source reliability standards and if they are otherwise authorized.

IV, IN-COURT IDENTIFICATIONS

In-court identifications of Rodriguez and of Riley by the respective victims were "also improperly admitted as there was no evidence at the suppression hearing [in either case] of an independent source” (People v James, 67 NY2d 662, 664). There can be no doubt about the necessity for this rule which the prosecution in each case failed to satisfy. Procedural preference or efficiency may not justify any less protection to the integrity of the process and to the particular defendant’s rights. When an eyewitness does not testify at a suppression hearing involving identification, the trial court lacks the basis to make a finding as to whether an independent source exists for an in-court identification untainted by a prior suggestive viewing (id.; see also, People v Rahming, 26 NY2d 411). Nor may the People rely upon the trial record for appellate courts to correct omissions or fill gaps in pretrial prerequisites (People v Dodt, 61 NY2d 408). Thus, it was also reversible error to admit this kind of identification evidence in each case.

While the appropriate corrective action to be applied in these circumstances might present an additional problem, we conclude that, as part of the new trial direction in each of these cases, the respective defendants may have a new independent source Wade (388 US 218, supra) hearing because that is the specific relief in that regard which they sought.

v. CONCLUSION

Inasmuch as we are reversing in each case and there should be further proceedings, we note that in Rodriguez the defendant’s argument that the kidnapping count merged with the robbery count fails. While the restraint and asportation which occurred while defendant and his cohorts were trying to force Malik to turn over money may have merged with the robbery (People v Lombardi, 20 NY2d 266; People v Levy, 15 NY2d 159), the defendant’s additional activity of placing Malik in the trunk and driving around for approximately three hours continued well beyond the robbery and constituted the independent crime of kidnapping (People v Cassidy, 40 NY2d 763; People v Miles, 23 NY2d 527).

In Riley, the trial court also erred in its supplemental instruction to the deadlocked jury that it, the court, "could have decided this case in ten minutes” or less and that the jurors should not "go in with a feeling that the person is guilty or not guilty” (People v Pagan, 45 NY2d 725).

Other issues raised by the respective defendants are either without merit or unpreserved. Accordingly, in each case the order of the Appellate Division should be reversed, the motion to suppress the identifications granted, and a new trial ordered.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

In each case: Order reversed, etc.


source: Caselaw Access Project

author: Hancock, Jr., J. Bellacosa, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Stanley Hedgeman, Appellant.
    Argued September 3,1987;
    decided November 24, 1987

      POINTS OF COUNSEL

      Burton C. Agata for appellant.

      John J. Santucci, District Attorney (Andrea Shapiro of counsel), for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

Where an accomplice to a robbery acts solely as the getaway driver and participates in neither the threat of force, its use, nor the taking of property, and is not in the immediate vicinity of the robbery or so positioned as to be capable of rendering immediate assistance to the robber, he is not "another person actually present” within the meaning of the aggravating accomplice factor of robbery, second degree (Penal Law § 160.10 [1]).

I

Defendant appeals from the affirmance of his conviction, after a jury trial, of robbery, second degree, arising from the holdup of a bank. His chief contention is that the trial court should have granted his dismissal motion, made at the close of the People’s case, upon the ground that there was insufficient proof, as a matter of law, to show that he committed the robbery while "aided by another person actually present”. A divided Appellate Division affirmed, holding, in pertinent part, that a getaway driver "shown to be parked approximately 15 feet from the bank at the time of the robbery” could be considered "actually present” at the robbery, inasmuch as the history of the Penal Law "suggests an elimination” of the distinction between actual and "constructive” presence (123 AD2d 446, 447). For reasons which follow, we agree with the view of the dissenter at the Appellate Division that both the legislative history and the plain meaning of the phrase "actually present” rule out the interpretation that it could include a person who was only constructively present at the crime scene.

The question before us is whether aid to a robber by a person who, unseen by and unknown to the victims, is waiting outside in an automobile is a circumstance which the Legislature intended should raise what would otherwise be robbery in the third degree to the crime of aggravated robbery in the second degree. The answer entails ascertaining what conduct or aggravating circumstances the Legislature envisioned as being within the term "aided by another person actually present” (Penal Law § 160.10 [1]). More precisely, we must determine whether the Legislature intended that the added presence of another person, under the circumstances in this case, constitutes a degree of seriousness commensurate with "causing] physical injury” to a nonparticipant (§ 160.10 [2] [a]) or "displaying] what appears to be a * * * firearm” (§ 160.10 [2] [b]) so as to warrant elevating the crime to a class C felony. From the plain meaning of the statutory language, the relevant legislative history, and, particularly, the term’s underlying purpose and sense as part of the robbery article of the Penal Law, we conclude that the Legislature did not so intend.

II

The People’s sole witness to defendant’s actions at the robbery was a bank teller. She testified that, on July 3, 1981 at about 1:30 in the afternoon, defendant came to her window at the branch of Manufacturers Hanover Bank at the intersection of Jamaica Avenue and Hollis Court Boulevard in Queens County. He handed her a note which read: "Important. Follow to the letter. Smile as you work. I am a soldier for the People’s Court, Black Liberation Party, trained to die for the cause. Do not panic and no tricks. Your life and others are in jeopardy. I have a bomb and demand the sum of $15,000. No one’s. I will look in bag. No tricks. We know where you live. Move now. Time is very little.” The teller informed defendant that she did not have that amount of money at her station and gave him the $200 in cash from her drawer. With the money in hand, defendant went out the front door facing Jamaica Avenue. There was only one other exit, at the rear of the bank.

As defendant left, the teller pressed the silent alarm and went looking for the assistant manager whom she found near the rear of the tellers’ area and informed of the robbery. After the assistant manager read defendant’s note, he and the teller went to the window on the side of the bank facing Hollis Court Boulevard and observed defendant. He was walking along the sidewalk on that side of the bank, around the corner from the front door, towards an automobile parked at curbside by a parking meter. The automobile was 15 feet from the bank window. Sitting in the driver’s seat was a person whose gender, age and race the teller could not determine. When defendant entered the automobile on the passenger side, it drove off.

There was also testimony by the officer who interviewed defendant at the station house upon his arrest several days after the robbery. According to the officer, defendant admitted the robbery, identified his driver, and said that they had discussed the robbery beforehand. No further evidence was presented as to the nature or extent of the driver’s participation. Under these facts, it cannot be said that the driver was sufficiently involved in the robbery or close enough to defendant at the time to have been "actually present”.

Ill

The Legislature has instructed us that in interpreting the Penal Law, the provisions must be read "according to the fair import of their terms to promote justice and effect the objects of the law” (Penal Law § 5.00; People v Ditta, 52 NY2d 657, 660). As with other statutory provisions, those contained in the Penal Law are generally to be construed so as to give effect to their most natural and obvious meaning (see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 94, 232; People v Sansanese, 17 NY2d 302, 306). This is particularly important where the clefinition of a crime is at issue, because courts must be scrupulous in insuring that penal responsibility is not "extended beyond the fair scope of the statutory mandate” (People v Wood, 8 NY2d 48, 51; see also, People v Gottlieb, 36 NY2d 629, 632; McKinney’s Statutes § 271 [c]). Applying these general rules, we examine the statute in question by analyzing its plain meaning, legislative history, and underlying sense and purpose.

As defined in the Penal Law, a simple taking of property by force, without any aggravating circumstances such as physical injury to a nonparticipant or use of a weapon, constitutes robbery in the third degree, a class D felony (Penal Law § 160.05). When the commission of the offense includes circumstances which cause, threaten to cause, or increase the risk of physical injury to another, the Legislature has deemed the crime to be more serious and deserving of greater punishment. Thus, when a participant in the robbery is armed with a deadly weapon, uses or threatens the immediate use of a dangerous instrument, displays what appears to be a firearm, or causes serious physical injury to a nonparticipant, the offense is upgraded to robbery in the first degree, a class B felony (Penal Law § 160.15). Where the robbery is accompanied by less serious circumstances, it is classified as robbery in the second degree — the crime involved here — a class C felony (Penal Law § 160.10). The Penal Law defines robbery in the second degree as follows:

"A person is guilty of robbery in the second degree when he forcibly steals property and when:
"1. He is aided by another person actually present (emphasis added); or
"2. In the course of the commission of the crime or of the immediate flight therefrom, he or another participant in the crime:
"(a) Causes physical injury to any person who is not a participant in the crime; or
"(b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm” (Penal Law § 160.10).

Turning first to the statute’s plain meaning, we conclude that the term "actually present” does not encompass the presence of the getaway driver here. Giving the term its natural and obvious meaning (see, McKinney’s Statutes § 94), "actual” refers to that which is "[ojpposed to potential, possible, virtual, theoretical, hypothetical, or nominal * * * in opposition to constructive or speculative * * * in contradistinction to virtual or constructive” (Black’s Law Dictionary 33 [5th ed 1979]; see also, 1 Oxford English Dictionary 96 [1933]). The notion of "actual presence” pertains, therefore, to something other than presence which is merely "theoretical” or "constructive”. To hold that the term "actual presence” means presence in the broader sense so as to include "constructive presence”, as the People urge, would read the word "actual” out of the statute. It would denude the phrase of its plain meaning and, moreover, violate the accepted canon of construction, especially critical when interpreting penal provisions, that words which define or delimit the reach of statutory provisions may not be disregarded as superfluous, but must be given meaning and effect (see, McKinney’s Statutes §§ 231, 271 [b]; cf., Matter of Bliss v Bliss, 66 NY2d 382, 388-389; New York State Bridge Auth. v Moore, 299 NY 410, 415-416).

The legislative history of the robbery statute confirms our reading of the provision in question. We agree with the dissenting Justice at the Appellate Division that, by the phrase "aided by another person actually present”, the Legislature intended to exclude, as an aggravating factor, aid by a person other than one actually present — i.e., aid by one whose presence is merely constructive. (See, 123 AD2d, at 450 [Brown, J., dissenting in part].)

The seriousness of aid given by "an accomplice actually present” as an aggravating element in the crime of robbery was recognized in 1881 when the Legislature singled-out that circumstance as a factor sufficiently egregious to elevate the crime to robbery in the first degree in the old Penal Code (see, L 1881, ch 676, § 228). The evident purpose in specifying that the accomplice be "actually present” was to incorporate, for purposes of the robbery statute, the distinction between actual and "constructive presence”, which was then well established in the common law, and to make clear that an accomplice who was only constructively present would not satisfy the statute (see, 21 Am Jur 2d, Criminal Law, §§ 169-170; Miller, Criminal Law, at 229-230 [3d ed]; Perkins and Boyce, Criminal Law, at 741 [3d ed]; LaFave and Scott, Substantive Criminal Law § 6.6 [b]). That this was the purpose becomes clear when section 228 of the 1881 Penal Code is read in the light of a decision of our court earlier in the same year and in the light also of section 29, enacted as part of the same 1881 code, pertaining to the definition of principal for purposes of criminal liability.

In January 1881 our court held that, for purposes of criminal liability as a principal (specifically, common-law principal in the second degree, see, n 3, supra), although a defendant "must be present at the commission” of the felony, "[h]is presence may be constructive” (McCarney v People, 83 NY 408, 412, 413). We explained that it was sufficient if he "was so situated as to be able to give aid to his associate, with a view to insure the success of the common enterprise,” and, we continued, "[a] waiting and a watching at a convenient distance is enough” (id.). This broadened scope of the concept of "presence” in the common-law definition of principal was carried over into the statutory definition of principal in section 29 of the Penal Code of 1881. In adopting this new definition of principal, it is significant that the Legislature used the unqualified word "present” which, under the expanded meaning given it at common law, would include a person actually or constructively present. By contrast, in section 228 of the Penal Code of 1881, the Legislature chose to require that the accomplice aiding the commission of the robbery be "actually present” in order to elevate the offense to aggravated robbery.

Concededly, for the purpose of assigning criminal responsibility to an aider or abettor as a principal, the Legislature used the unmodified word "present” in its broad sense in section 29 of the Penal Code of 1881. It is evident, however, that for the totally different purpose of defining a factor of sufficient seriousness to raise the level of ordinary robbery to an aggravated degree, the Legislature intentionally used the modified term "actually present” for a narrower and more restricted meaning (see, McKinney’s Statutes §§ 97, 98 [to the effect that all parts of a legislative act are to be construed together and harmonized with each other as well as with the general intent of the whole statute, so as to give effect, if possible, to every part and word]).

That the Legislature would not have intended to include a person who was only constructively present is convincingly demonstrated by an analysis of the underlying sense and purpose of the aggravating accomplice factor in its context as part of the robbery sections (see, McKinney’s Statutes § 96 [to the effect that a "construction is to be preferred which furthers the object, spirit and purpose of the statute”]; People v Ryan, 274 NY 149, 152). The sole purpose of the phrase "actually present” in Penal Law § 160.10 (1) is to describe a circumstance which, like "causing] physical injury” to another (subd [2] [a]) or "displaying] what appears to be a * * * firearm” (subd [2] [b]), has the effect of raising the seriousness of the crime committed by a robber from a class D to class C felony.

When the three aggravating factors in Penal Law § 160.10 are read together, they reflect a concern for the added element of physical harm, danger, and perceived threat of additional violence to the victims of the robbery. That concern is clearly present in situations involving physical injury or the apparent willingness to use a firearm. Likewise, it is present where the robber is joined by another in his use or threat of force or in his seizing or retaining another’s property. No such concern exists, however, where the robber has but one accomplice, unknown and unseen to the victim at the time of the robbery, and limited in his participation to waiting for the robber and driving him from the area once the taking has been accomplished.

There is additional evidence in the statute that it was accessorial aid at the crime scene and not elsewhere which the Legislature considered sufficiently serious to be an aggravating factor. Two of the three aggravating factors, causing physical injury and displaying a firearm, operate to raise ordinary robbery to robbery in the second degree not only when the aggravating conduct occurs at the crime scene, but also when it occurs during the "immediate flight therefrom” (subd [2]). By contrast, the aid rendered by an accomplice must, in order to operate as an aggravating factor, be rendered while that accomplice is actually present at the robbery (subd [1]). Assistance rendered solely in the course of "flight therefrom” does not raise the offense to second degree robbery (see, People v Timlin, 99 AD2d 296, 299-300 [Levine, J., dissenting], Iv denied 62 NY2d 992).

IV

Contrary to the position espoused in the dissenting opinion, our reading of the statute does not introduce an "entirely subjective” factor. Rather, it simply gives effect to the Legislature’s expressed recognition that the presence of an accomplice, lending aid actually at the crime scene, places the victims of a robbery in a genuinely higher risk of danger and, concomitantly, a greater level of fear for their own safety. These are the same objectively deducible, legislative concerns that underlie the other aggravating factors of Penal Law § 160.15.

Nor do the Commission Staff Notes on the revised Penal Law, relied upon by the dissent, support a different reading of the statute. Instead, they evince a legislative intent wholly consistent with the result we reach today. The use of a getaway car was included among the aggravating factors in the former robbery statute (former Penal Law § 2124, L 1909, ch 88, as amended). It was eliminated when the Penal Law was revised in 1965 because it was considered by the Legislature to be an insufficiently egregious factor to justify a more serious conviction and harsher sentence. The Commission Staff Notes explain that, where the robber acts alone, the use of an automobile simply does not seem "a highly significant item”. And where the robber acts with "a group of bandits”, regardless of whether an automobile is used, the robbery is "in any event” aggravated only "by virtue of the accomplice factor” (Commission Staff Notes on Proposed Penal Law art 165 [renum art 160], reprinted in 1982-1983 Gilbert Criminal Law and Procedure, at 2A-74). The mere use of a driver, whose participation in a bank robbery is limited to waiting outside and operating the getaway vehicle, plainly does not constitute a "group of bandits” who, "in any event”, must be accomplices who are "actually present” within the meaning of the statute. Thus, consistent with our decision, the Commission Staff Notes do show that the use of a getaway car, without more, is a factor having little or no import. They do not, however, shed any additional light on the requirement, explicitly provided in the statute, that the driver, or other accomplice to a robbery, be "actually present”.

Here the evidence was that another person aided defendant in the course of his flight from the crime scene by driving him away. It showed nothing else. There was no suggestion that the driver was armed, prepared to assist defendant, or even observing defendant’s actions, or that he was sufficiently close to defendant to be available to render him aid during the actual commission of the robbery. Under these facts, where there is no showing that the driver was ready, willing or able to aid defendant in the forcible stealing from the teller or the bank — let alone that he directly participated therein — it cannot be said that he was "actually present” within any fair construction of the statute.

We have considered defendant’s other contentions and find them to be without merit. Accordingly, the order of the Appellate Division should be modified, defendant’s conviction reduced to robbery in the third degree, and the case remitted for resentencing.

Bellacosa, J.

(dissenting). I disagree with the majority’s conclusion that the wheelman of a getaway car, parked 15 feet from the bank robbery crime scene awaiting his holdup partner’s return, is not a "person actually present” within the meaning of the robbery second degree definition. Based on the statutory language itself, its legislative history and long-existing criminal-law principles, I conclude that the majority’s holding distorts the commonsense meaning and the expressly intended legal import of the statute. Thus, I dissent and vote to affirm the conviction.

Testimony established that defendant entered a bank, walked up to the teller’s window, handed the teller a note demanding $15,000 and threatened to detonate a bomb. The teller gave defendant $200 claiming it was all the money in her drawer at the time. As defendant turned to leave the bank, the teller activated the silent alarm and alerted the assistant manager of the robbery. The teller and the manager went to a window and spotted defendant walking towards a car parked about 15 feet from the bank. They observed a person seated in the driver’s seat, and as defendant entered the car the accomplice effected the getaway. The majority says the accomplice was not "actually present”!

Defendant was charged with robbery in the second degree (Penal Law § 160.10 [1]), which requires (1) an accomplice (2) who is "actually present” and (3) who aids the defendant (People v Acevedo, 40 NY2d 701, 706). The majority concedes elements (1) and (3) are present, but then finds, by strained statutory construction, that defendant was wrongly convicted because his getaway driver was not sufficiently involved in the robbery or close enough to defendant and to the crime scene to have been "actually present”.

The statute does not require the accomplice driver to actually accompany the robber into the robbery premises or that the robbery victim be aware of the accomplice’s presence nearby (compare, People v Moser, 70 NY2d 476 [Per Curiam]). How then, as a matter of law, can this court declare the accomplice driver absent within the meaning of this statute? I confess I don’t know and I don’t understand the proffered explanation. The only sensible construction of the statute, deeply rooted in criminal-law principles, is that the objective presence and support lent by an accomplice at or near the central scene of a crime psychologically elevates the seriousness of the robbery and that warrants heightened classification and greater punishment.

Cogent support for this view is found in the legislative history and the Commission Staff Notes on the revised Penal Law which expressly includes this precise situation within robbery in the second degree (L 1965, ch 1030; Commission Staff Notes for proposed art 165 [renum art 160], reprinted in 1982-1983 Gilbert Criminal Law and Procedure, at 2A-74). Under section 2124 of the former Penal Code, there were four aggravating factors which elevated a robbery to a first degree offense: (1) being armed with a dangerous weapon; (2) being aided by an accomplice actually present; (3) use of an automobile; or (4) infliction of grievous bodily harm (see, Hechtman, Practice Commentaries,» McKinney’s Cons Laws of NY, Book 39, Penal Law art 160, at 194-216). When the Penal Law was revised in 1965, two of these criteria, being armed and causing physical injury, were retained as aggravating factors sufficient to support robbery in the first degree. Accomplice assistance was determined to be a notch less serious as an aggravating factor and was proposed for a reduced second degree classification. The fourth element, use of an automobile, was eliminated entirely as an aggravating factor in robbery. The Commission explained: "The use of a car in a solo robbery does not appear as a highly significant item; and if it be regarded as such in a setting involving a group of bandits, the robbery is in any event raised to the second degree by virtue of the accomplice factor” (Commission Staff Notes, op. cit., at 2A-74 [emphasis supplied]).

Thus when one, acting alone, uses a car in a robbery, no aggravating factors are present and the offense constitutes robbery in the third degree. When two or more persons use a car in a robbery, the aggravating accomplice factor is present, raising the offense to robbery in the second degree. That being the intent of the statute and its sensible import, it is inconsequential that the accomplice driver did not actually step over the threshold of the bank’s physical curtilage with his holdup partner, or that the teller was unaware of the accomplice’s presence just outside the bank. The dispositive element, within the statute, is that the driver was actually present at the crime scene, which cannot as a matter of law be artificially cordoned off by this court as containing only the interior bank premises. This has the ring of a common-law formalism antithetical to our modern criminal law statute and principles.

The majority adds a restriction to the statute and it is entirely subjective. The level of seriousness of an offense is the Legislature’s prerogative, and that level should not be measured by the varying perceptions of victims in proportion to their individualized sense of threat of enhanced harm supplied by an aider’s actual presence at or near a crime scene (cf., People v Greene and People v Bogan, 70 NY2d 860). This unworkable subjective standard is contrary to the traditional criminal-law principles that the mutually reinforcing psychological effect among the criminals is the dispositive elevating factor (see, LaFave and Scott, Criminal Law § 64; People v McLean, 107 AD2d 167, 169, affd 65 NY2d 758; People v La Bella, 18 NY2d 405, on remand 53 Misc 2d 111; People v Monaco, 14 NY2d 43).

In sum, the majority provides no rule. It creates nothing but its artificial, arbitrary locational barrier, and it clouds focused analysis by erecting a constructive presence strawman argument. This is not a constructive presence case. If there is more than one room at the crime scene or compartments of rooms, or if one perpetrator enters a bank while another pulls up to the drive-in window, are we really to conclude that the accomplices are not "actually present” together at the crime and reinforcing one another within this simple statutory phrase?

The test under the statute should be that actual presence with an automobile takes its meaning from direct participation, actually given or potentially available. That was what was intended and that makes good sense. The proof is irrefutable that the wheelman actually rendered assistance to this defendant because he drove the vehicle in which the bandits made their planned escape. As far as they were concerned, they were both actually present from the beginning to the end of their joint criminal enterprise.

This conviction is proper and should be upheld.

Judges Simons, Kaye, Alexander and Titone concur with Judge Hancock, Jr.; Judge Bellacosa dissents and votes to affirm in a separate opinion in which Chief Judge Wachtler concurs.

Order modified and case remitted to Supreme Court, Queens County, for resentencing in accordance with the opinion herein and, as so modified, affirmed.

      . The Appellate Division affirmed two separate judgments of Supreme Court: one convicting defendant of robbery, second degree, under indictment No. 1952/81, upon a jury verdict; the other convicting defendant of robbery, third degree, under indictment No. 2028/81, upon a plea of guilty. On this appeal defendant challenges only the first of the convictions and the sentences imposed on both.

      . The crimes of robbery in the first degree, second degree, and third degree are punishable by indeterminate terms of imprisonment having máximums of up to 25, 15, and 7 years, respectively (see, Penal Law § 70.00  [b], [c] and [d]).

      . The seriousness which the Legislature has historically attached to this aggravating factor is shown by the fact that it was placed in the same category as carrying a dangerous weapon and infliction of serious physical injury in raising the crime of robbery to the first degree (see, Penal Code of 1881 § 228, L 1881, ch 676; Penal Law of 1909 § 2124, L 1909, ch 88; see also, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law §§ 160.10, 160.15, at 202-203, 205-206). In 1965 the Penal Law was rewritten and the aggravating circumstance of aid by an accomplice "actually present” was dropped to robbery in the second degree while unaggravated robbery was dropped to robbery in the third degree (see, L 1965, ch 1030). A subsequent amendment added physical injury to another and display of a firearm as circumstances elevating the crime to robbery in the second degree (see, L 1969, ch 1012, § 3).

      . This section eliminated the common-law distinctions between principals in the first degree, principals in the second degree, and accessories before the fact. Under common law, a principal in the first degree was a person who knowingly engaged in illegal conduct, a principal in the second degree was a person who knowingly aided the principal in the first degree and was present (either actually or constructively), and an accessory before the fact was a person who knowingly commanded, induced, or procured another to commit the crime but was absent (see, Miller, Criminal Law, at 229-230 [3d ed]; McCarney v People, 83 NY 408). Despite these distinctions, under common law all three of these groups were criminally liable, albeit in varying degrees, for a robbery. The Legislature apparently recognized this fact, because when it enacted section 29 of the Penal Code of 1881, it provided that any "person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime [is criminally liable as] a principal” regardless of his prior status under common law.


text:
    The People of the State of New York, Appellant, v Dana Jones, Respondent.
    Argued October 12, 1987;
    decided November 25, 1987

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Mark Dwyer and Michael A. Schwartz of counsel), for appellant.

      Jennifer S. Brand and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant was convicted, after a jury trial, of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first and third degrees. After originally affirming his conviction (124 AD2d 1076), the Appellate Division unanimously granted defendant’s motion for reargument, vacated its prior order, reversed the judgment of conviction, and remanded the case for a new trial on the ground that the People violated the Rosario rule (see, People v Rosario, 9 NY2d 286; CPL 240.45 [1] [a]) and that the violation required reversal. A Justice of the Appellate Division granted the People leave to appeal. The sole issue is whether the prosecution’s total failure to deliver Rosario material to defense counsel as required by the rule is subject to harmless error analysis.

The undelivered items pertained to an important prosecution witness, one Takum Taza, an admitted former narcotics dealer who had become a paid confidential informant. The prosecution concededly violated Rosario in failing to turn over to defense counsel five pages of notes concerning Taza written by the trial assistant and a DEA-6 form containing an initial debriefing of Taza conducted by Detective Lawrence Gerhold. In its original affirmance the Appellate Division took the position, as does the concurring Judge, that, because defense counsel successfully impeached Taza with other damaging material in counsel’s possession, the "additional topics for impeaching [which the withheld items would have afforded] were, in context, simply cumulative, if not trivial” (128 AD2d 405, 406). The papers which the prosecutor held back would have revealed at least the following discrepancies in Taza’s trial testimony: that he had been arrested on a weapons charge; that, contrary to his testimony, he had been fired from his last job as a taxicab driver for embezzlement, and that he actually sold 2 Vi to 5 times more than the quantity of drugs which he claimed in his trial testimony to have sold.

The Rosario rule, we have repeatedly said, is founded on this court’s firm conviction that "a right sense of justice entitles the defense to examine a witness’ prior statement, whether or not it varies from his testimony on the stand” (People v Rosario, supra, at 289; see, People v Ranghelle, 69 NY2d 56, 62; People v Perez, 65 NY2d 154, 158). As we stated in People v Perez (supra, at 158), "such statements are valuable not only as a source of contradictions, and * * * no one is better equipped or motivated than defense counsel to determine how they may be useful to the defense [citation omitted]”. In People v Consolazio (40 NY2d 446, 454), we emphasized that "a failure to turn over Rosario material may not be excused on the ground that such material would have been of limited or of no use to the defense, or that a witness’ prior statements were totally consistent with his testimony at trial” and that "consideration of the significance of the content or substance of a witness’ prior statements [cannot] result in a finding of harmless error.” The rule is simple and unequivocal: if the People are in possession of a statement of their own prospective witness relating to the subject matter of that witness’ testimony, defense counsel must, in fairness, be given a copy because ordinarily counsel would have no knowledge of it and no other means of obtaining it.

Nothing about this case persuades us that our long-standing rulings, that defense counsel "is in a far better position [than the court or the prosecutor] to appraise the value of a witness’ pretrial statements for impeachment purposes” (People v Rosario, supra, at 290) and that the ultimate appraisal of the material’s usefulness must be made by defense counsel, are incorrect or not essential for achieving the fundamental objective underlying Rosario — " 'to afford the defendant a fair opportunity to cross-examine the People’s witnesses at trial’ ” (People v Perez, supra, at 158, quoting People v Poole, 48 NY2d 144, 149).

In People v Consolazio (supra), People v Perez (supra) and People v Ranghelle (supra), we concluded that given the nature of a Rosario violation, harmless error cannot be applied. We reject the contention of the concurring Judge and the People that the particular circumstances of this case demonstrate that we should overrule these decisions and hold that the error was harmless because, in their opinion, the nondisclosure would have been of limited impeachment value — an opinion necessarily based on speculation as to what use defense counsel might have put them. Nor are Consolazio, Perez, and Ranghelle, which the concurrer would have us overrule as "three errant footsteps”, in any respect like the precedents rejected in People v Hobson (39 NY2d 479). Here, the decisions which are criticized are separate, full opinions, written for the unanimous court by three different members. The three decisions overruled in People v Hobson (supra, at 486) — People v Wooden (31 NY2d 753), People v Lopez (28 NY2d 23, cert denied 404 US 840), and People v Robles (27 NY2d 155) — had themselves overturned previously established case law and had temporarily reversed the continuing evolution of our right to counsel rule (see, People v Hobson, supra, at 483-484). By contrast, the Consolazio, Perez, and Ranghelle decisions are consistent with prior case law (see, People v Consolazio, supra, at 454) and are part of this court’s efforts at careful development of a State standard which, while fair to the prosecution, accords to the defendant a degree of protection commensurate with the importance of Rosario rights.

Applying a harmless error analysis to a Rosario violation would, as with any error, require us to consider two discrete factors: "the quantum and nature of proof of the defendant’s guilt if the error in question were to be wholly excised”, and "the causal effect which it is judged that the particular error may nonetheless have had on the actual verdict” (see, People v Crimmins, 36 NY2d 230, 240). The nature and purpose of Rosario make such analysis impossible.

In Rosario, we emphasized that statements of prosecution witnesses are important not just as a source of contradictions, but that "[e]ven statements seemingly in harmony with [trial] testimony may contain matter which will prove helpful on cross-examination. They may reflect a witness’ bias, for instance, or otherwise supply the defendant with knowledge essential to the neutralization of the damaging testimony of the witness which might, perhaps, turn the scales in his favor. Shades of meaning, stress, additions or omissions may be found which will place the witness’ answers upon direct examination in an entirely different light” (9 NY2d 286, 289, supra). It is defense counsel alone who has the responsibility for making the strategic judgments and doing the careful preparation required for planning and executing an effective cross-examination of the People’s witnesses and deciding whether and how to use the statements. When, as a result of the prosecutor’s violation of the Rosario rule, defense counsel has been deprived of material of which he or she is unaware or cannot otherwise obtain, there is no way, short of speculation, of determining how it might have been used or how its denial to counsel might have damaged defendant’s case. Such speculation would, of course, undermine the very basis of our prior decisions — that even "a judge’s impartial determination as to what portions may be useful to the defense, is no substitute for the single-minded devotion of counsel for the accused” (People v Perez, supra, at 160; see, People v Novoa, 70 NY2d 490, 499; People v Rosario, supra, at 290).

It is this inability of a reviewing court, to ascertain how defense counsel might have employed the withheld material, that distinguishes cases involving Rosario violations from cases involving other errors where the application of harmless error analysis is appropriate. Where the case involves prosecutorial misconduct, erroneous evidentiary rulings, misbehavior of a juror, improper comments during summation, or other such errors, the appellate court can review the record to determine, first, the existence of error, and then, if error is found, to assess the strength and persuasiveness of the admissible evidence of guilt and the probable effect, if any, of the error on the fact finder’s decision. Evaluating damage caused by a Rosario violation, by contrast, necessarily depends on a factor which is not in the record and which cannot be known —the operation of defense counsel’s mind and what different course might have been pursued if he had possessed the material.

Likewise, we reject the People’s contention, and the implication in the Appellate Division memorandum, that People v Ranghelle (supra, at 63) was a departure from the existing rule and should be overruled. In Ranghelle, we held that when, as here, the prosecution’s violation of the rule is not delay in compliance, but a complete failure to deliver the items, the violation constitutes per se error requiring reversal, and good faith or inadvertence on the part of the prosecutor is of no moment. In this holding, Ranghelle is no more than a logical application of the rule established in People v Rosario (supra) and carried forward in People v Consolazio (supra), People v Poole (supra), and People v Perez (supra). To add a good-faith exception to this settled rule, as the People and the concurrer suggest, would frustrate the very purpose and underlying policy considerations of the rule. The focus of Rosario is on fairness to defendant — not on the conduct or motives of the prosecutor. If Rosario material is denied the defendant, he has been deprived of what he should have. It matters not that the denial may have been inadvertent or immaterial.

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

Bellacosa, J.

(concurring). I concur only out of respect for the doctrine of stare decisis (see, Simpson v Loehmann, 21 NY2d 305, 314 [Breitel, J., concurring]). The recently declared coup de grace that failure to turn over Rosario (9 NY2d 286) material "constitutes per se error requiring that the conviction be reversed” (People v Ranghelle, 69 NY2d 56, 63), growing out of People v Consolazio (40 NY2d 446) and People v Perez (65 NY2d 154), parallels, in my view, the three errant footsteps identified in People v Hobson (39 NY2d 479, 485). Yet, the court persists and I am bound.

The record in this case reveals that documents containing statements of a prosecution witness, which the prosecutor either did not know of or regarded as attorney work product, were not disclosed to the defense pursuant to Rosario. Following conviction, the defense learned of the existence of these materials and moved to set aside the verdict. The trial court denied the motion based upon a record establishing that the statements were relevant only to the credibility of one witness who was, in any event, significantly impeached on cross-examination; that the statements would have had little, if any, effect on the substance of the witness’ testimony which was cumulative in all major respects with the testimony of an undercover police officer; and that the records were duplicative or cumulative to substantial other material properly turned over. In stark contrast to the de minimis nature of the undisclosed material, the People did provide the defense with defendant’s arrest record; the subject arrest report; personal history forms on defendant, a codefendant and this witness; Grand Jury minutes from this case; Grand Jury minutes from a similar case where the witness testified; a tape recording of the sale in this case; the witness’ own report of the sale here; a special agent’s report regarding the sale; a recommendation for dismissal in an unrelated case based on this witness’ poor credibility; two documents from an unrelated prosecution that contained inconsistent statements by this witness; and, the laboratory analysis report from this sale. The Appellate Division originally affirmed the conviction, without opinion (People v Jones, 124 AD2d 1076).

Following the decision in People v Ranghelle (69 NY2d 56, supra), the Appellate Division granted reargument, stating that "there is substantial support for the proposition that the People’s nondisclosure here was truly harmless”, adding that its initial affirmance was based upon the view that the non-disclosed impeachment materials "were, in context, simply cumulative, if not trivial” (People v Jones, 128 AD2d 405, 406). However, compelled by Ranghelle’s per se error rule which requires reversal for any and all Rosario turnover lapses, the Appellate Division vacated its earlier order, reversed the conviction and ordered a new trial.

Ironically, in Rosario itself, this court held that the People are required to disclose all prior statements of its witnesses based on a "right sense of justice” (9 NY2d 286, 289, supra). Judge Fuld wisely concluded, however, in that capital case affirming a conviction for murder in the first degree: "This court is exceeding slow to disregard error as harmless under section 542 of the Code of Criminal Procedure, particularly in a capital case. However in the one before us, we are as convinced as judges may ever be, in view of the overwhelming proof of guilt and the absence of any real inconsistency between prior statement and trial testimony, that the jury would not have decided the case differently even if defense counsel had had the use of the statements in question. In other words, it may not be said that any substantial right of the appellant was prejudiced by the trial court’s erroneous ruling” (id., at 291). Decisions subsequent to Rosario continued to apply harmless error analysis to Rosario violations (see, People v Hawa, 13 NY2d 718; People v Fasano, 11 NY2d 436; People v Pereira, 11 NY2d 784; People v Hernandez, 10 NY2d 774; People v Turner, 10 NY2d 839; People v Hurst, 10 NY2d 939).

People v Consolazio (40 NY2d 446, supra), while noting that Rosario’s harmless error component would no longer be applied to trials after Rosario, nevertheless neutralized the error in that case on its own harmless error-like rationale without invoking the phrase. People v Perez (65 NY2d 154, supra) and People v Ranghelle (69 NY2d 56, supra) completed the detour from the harmless error portion of People v Rosario (9 NY2d 286, supra).

The new per se error rule has elevated the consequences of these nonconstitutional Rosario violations to a level higher than a host of constitutional errors to which harmless error analysis applies (see, Rose v Clark, 478 US 570, 106 S Ct 3101, 3107 [instruction that impermissibly shifted the burden of proof on malice], citing Rushen v Spain, 464 US 114, 119 [denial of right to be present at trial]; United States v Hasting, 461 US 499, 508-509 [improper comment on defendant’s failure to testify]; Moore v Illinois, 434 US 220, 232 [admission of witness identification obtained in violation of right to counsel]; Milton v Wainwright, 407 US 371 [admission of confession obtained in violation of right to counsel]; Chambers v Maroney, 399 US 42, 52-53 [admission of evidence obtained in violation of the 4th Amendment]). This court’s new rule prohibits attempts by the courts to "determine whether any prejudice accrued to the defense”, and declares "the People’s good-faith effort to locate, identify, and discover all Rosario material does not excuse their failure to produce” (People v Ranghelle, 69 NY2d 56, 63, supra).

As the People observe in their brief, no other jurisdiction has a Ranghelle-type rule. Indeed, the principle enunciated in Ranghelle is analogous to the notorious Exchequer rule from the courts of England in 1830, which was recognized at one time by a majority of jurisdictions in this country. This rule created a per se right to a new trial for the defendant upon an erroneous evidentiary ruling, regardless of how insignificant (1 Wigmore, Evidence § 21, at 884-888 [Tillers rev 1983]). The rule was criticized as having "done more than any other one rule of law to increase the delay and expense of litigation, to encourage defiant criminality and oppression, and to foster the spirit of litigious gambling * * * Just so long as an erroneous ruling on evidence, however trifling, is described by the highest judges (and in many courts it habitually is) as 'working a reversal’, just so long will the reproach of technicality and futility mark our litigation” (1 Wigmore, Evidence § 21, op. cit, at 891). Of course, that rule has since been abandoned almost everywhere. But, we now have our own modern version.

A concern, with a coincidental and ironical twist, is that People v Ranghelle (supra), People v Perez (65 NY2d 154, supra), and to a lesser extent People v Consolazio (40 NY2d 446 [per Jones, J.], supra), even skew away from People v Crimmins (36 NY2d 230 [per Jones, J.]) in which Rosario was cited as an example of a nonconstitutional issue to which harmless error analysis applied (id., at 240).

Thus, good faith, unintentional and trivial lapses by the People in failing to disclose even de minimis pretrial material, inevitably result in reversal by adherence to an important rule taken now to an extreme (see, People v Havelka, 45 NY2d 636, 642). Notably, the court charts this course with respect to an aspect of the trial collateral, albeit important, to guilt or innocence — credibility. It rules that no quantum of compliance, save absolute, will be tolerated.

This relatively new absolute rule even blinks the legislative direction contained in CPL 470.05 (1) (the successor to Code of Criminal Procedure § 542 expressly adhered to in Rosario) that "[a]n appellate court must determine an appeal without regard to technical errors or defects which do not affect the substantial rights of the parties”. It must be supposed that the court overrides the statutory prescription by the fiat that all Rosario errors affect "substantial rights” because the court says so. Since the court is the final word, that may be so, even if it is also tautological. The finding in both courts below that the particular nondisclosure was truly harmless, merely duplicative and trivial, accents the extravagance of a per se rule made by a fallible institution which tolerates no imperfection in the law enforcement authorities whose conduct they govern. While the mission of the courts is to render justice, the "right sense of justice” referred to in Rosario itself implies an evenhandedness, not the imbalance created by a per se rule of this kind.

There should be no mistake concerning my fundamental and strong support for the Rosario rule and its importance in fairness and in adversarial advocacy affecting criminal prosecutions. Thus, if in this case there were the slightest hint of prosecutorial manipulation, advantage-seeking, lack of good faith, or significant prejudice to defendant’s rights; if there were not a reasonable explanation and excuse; and if this prosecutorial lapse were, even on an instant replay, deemed to have contextually, potentially and prejudicially affected the outcome and the fairness of the procedures affecting this defendant’s trial rights, then I would unqualifiedly join in undoing the conviction. In any of those instances, the entire law enforcement chain must maintain a completely clean act and Rosario is a powerful prophylaxis to that end. But none of these supposed things are present in this case and won’t be in many cases yet to come. Indeed, the opposite is true. Yet, the court has uprooted the Rosario foundation — fairness—and has sown in its place a test of perfection. "[T]aking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee” (United States v Hasting, 461 US 499, 508-509, supra).

A last observation of practical consequences is necessary. The new per se error rule unavoidably plants an uncertainty into every tried criminal case. It is a law enforcer’s nightmare and a perpetrator’s delight. Insofar as the rule is not constitutionally rooted, I believe it would be useful for the Legislature to consider a specification in CPL 470.05 and article 240, especially CPL 240.20 and 240.45, overcoming the per se-ness of this exalted court-made rule.

I close as I opened. The court conclusively adheres here to its per se rule so I join in the result only, having stated these separate views (see, Simpson v Loehmann, 21 NY2d 305, supra).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Titone concur with Judge Hancock, Jr.; Judge Bellacosa concurs in result in a separate opinion.

Order affirmed.

      . The Rosario rule was codified in CPL 240.45 (1) (a). CPL 240.45 states:
      "1. After the jury has been sworn and before the prosecutor’s opening address, or in the case of a single judge trial after commencement and before submission of evidence, the prosecutor shall, subject to a protective order, make available to the defendant:
      "(a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this chapter, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness’s testimony.”

      . Two other items were not turned over which are arguably Rosario material. In light of our holding that reversal is required for failure to turn over the two items which the People concede are Rosario material, we need not decide whether the other items were also improperly withheld.

      . Despite the suggestion of the concurring Judge that the material in question is duplicative of other material previously turned over by the People (see, concurring opn, at 554, 556), the People do not contend that the material is duplicative. Duplications are, of course, an exception to the Rosario rule (People v Ranghelle, 69 NY2d 56, 63; People v Consolazio, 40 NY2d 446, 454).

      . The assumption on which the concurrer and the People would base harmless error here — that the withheld Rosario material was of only "de minimis” or "minimal” value — is illustrative. Whether this assumption is valid or whether, as defendant contends, the five pages of notes concerning, among other things, Taza’s drug dealing and the loss of his job for embezzlement would have constituted "valuable impeachment material” is beside the point. The significant fact is that the conclusion that the information was of no value must necessarily be founded on sheer speculation as to what might have occurred and matters not in the record: i.e., the questions counsel might have asked or avoided asking, how the witness might have answered, and how such differences in the testimony might have affected the decision of the jury.


author: Alexander, J. Titone, J.

text:
    Regina A. Kenavan, as Administratrix of the Estate of Joseph A. Kenavan, et al., Appellants, v City of New York, Respondent, et al., Defendant. (Action No. 1.) Robert Verdonik et al., Appellants, v City of New York, Respondent, et al., Defendant. (Action No. 2.) Angelo Volpicella et al., Appellants, v City of New York, Respondent, et al., Defendant. (Action No. 3.)
    Argued October 8, 1987;
    decided November 25, 1987

      POINTS OF COUNSEL

      Brian J. Shoot and Harvey Weitz for appellants in the first above-entitled action.

      Robert G. Sullivan, Stephen C. Glasser, Pamela Anagnos Liapakis and Michael N. Block for appellants in the second above-entitled action.

      Sally Weinraub and Kenneth Falk for appellants in the third above-entitled action.

      Peter L. Zimroth, Corporation Counsel (Karen Hutson and Fay Leoussis of counsel), for respondent in the first, second and third above-entitled actions.
   OPINION OF THE COURT

Alexander, J.

On January 24, 1976, at approximately 8:00 in the evening, plaintiffs, Ogno, Kenavan, Costello and Volpicella, under the supervision of Captain Verdonik — all members of the New York City Fire Department — were dispatched to extinguish a fire that had ignited in a vehicle abandoned on 37th Street between 7th and 9th Avenues in the Sunset Park section of Brooklyn. Upon reaching the scene, Ogno, the chauffeur, pulled the fire engine past the abandoned car and parked. While his team doused the fire, Captain Verdonik positioned himself in the middle of the road, parallel to the burning car, waving a lantern to warn oncoming traffic. Despite the light from Verdonik’s lantern and from the fire engine, heavy smoke from the burning car reduced visibility between the fire operation and the oncoming traffic. Within minutes, the firefighters had brought the fire under control; at that moment— or perhaps seconds later — Verdonik saw a pair of headlights bearing down on him and his fellow firefighters. When the headlights appeared to accelerate rather than slow down, Verdonik turned to warn his crew, but to no avail. The approaching vehicle, driven by defendant Gardell, continued headlong into the cloud of smoke striking Verdonik and each of the other firefighters, and crashed into the back of the fire engine. Four of the firefighters were seriously injured and one, Kenavan, was killed. Gardell, who was convicted by a jury of reckless manslaughter and assault prior to the instant civil suit, testified that he never saw a fire engine, lights or any firefighters.

Plaintiffs brought these actions, asserting liability against the City under General Municipal Law § 205-a, under common-law negligence for having failed to remove the abandoned car, and under common law for the negligence of Ogno in failing to properly park the fire truck, and of Verdonik in failing to establish "fire lines” to protect the fire crew from oncoming trafile. At the close of evidence, the City’s motion to dismiss the complaints was denied, and the case was submitted to the jury. The jury unanimously found the City liable, apportioning culpability 70% to the City, 20% to Gardell, 4% to Verdonik, and 6% to Ogno. Insofar as relevant on this appeal, the Appellate Division reversed the judgment on the law and the facts and dismissed the actions against the City. For the reasons that follow, we now affirm.

Plaintiffs argue that the Appellate Division erred in dismissing their cause of action against the City under General Municipal Law § 205-a which provides in part that: "In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury [or] death * * * directly or indirectly as a result of any * * * negligence of any person * * * in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person * * * guilty of said neglect * * * shall be liable to pay any * * * employee of any fire department injured * * * while in the discharge * * * of any duty imposed by the * * * superior officer”. According to plaintiffs, the City failed to remove the abandoned car in violation of Vehicle and Traffic Law § 1224, Administrative Code of the City of New York, chapter 31, § 755 (4)-3.0 (a), and General Order No. 5 of the New York City Department of Sanitation — all of which impose a duty on the City to promptly remove abandoned vehicles from the roadways — and these violations resulted "directly or indirectly” in their injuries, triggering liability under section 205-a. Relying on McGee v Adams Paper & Twine Co. (26 AD2d 186, affd 20 NY2d 921), the Appellate Division rejected this argument, holding that those "legal requirements are not fire preventive in nature” and that recovery under General Municipal Law § 205-a is limited to instances where a "fire preventive” provision was violated (120 AD2d, at 33).

At common law, firefighters were held to have assumed the risks of their profession and were denied recovery for injuries sustained while combatting fires even though the owner of the premises on which the fire occurred was negligent in creating the condition that caused the accident (see, McAvoy v Di Leo, 40 Misc 2d 46, 47-48 [County Ct], revd 43 Misc 2d 164 [App Term, 2d Dept]). In an attempt to ameliorate the harsh result of the common-law rule, the Legislature enacted General Municipal Law § 205-a (L 1935, ch 800, as amended by L 1936, ch 251), with the intention of creating a cause of action where otherwise there would be no right of recovery for the injury or death of a firefighter (see, McGee v Adams Paper & Twine Co., 26 AD2d 186, 195, supra; Healy v Rennert, 33 Misc 2d 897, affd 20 AD2d 682; Burigo v Di Leo, 38 Misc 2d 851). Plaintiffs argue that under the plain language of the statute, the violation of any statute, ordinance, rule or order — including a violation of the Vehicle and Traffic Law — is sufficient to sustain liability under section 205-a. Although General Municipal Law § 205-a, as a remedial statute, is to be construed liberally (see, McGee v Adams Paper & Twine Co., 26 AD2d 186, 194, supra), we conclude that the intended scope of the enactment is not so far-reaching. Section 205-a authorizes in broad language recovery for injury to a firefighter caused by the violation of any provision. The causation requirement is best understood by tracing section 205-a to its origin, section 761 of the Greater New York Charter (L 1901, ch 466), which provided in language similar to that of section 205-a: "All hoistways, well-holes, trap-doors, and iron shutters shall be closed at the completion of the business of each day by the occupant of the building having use or control of the same, and in case of a violation of this provision, such occupant having the use or control thereof shall forfeit and pay a penalty of fifty dollars for each and every neglect or omission so to do. And for any accident or injury * * * resulting directly or indirectly from any neglect or omission to properly comply with any of the requirements of this section, the person * * * negligent in respect thereto shall be liable to pay any * * * employee of said fire department injured” (originally enacted as L 1882, ch 410, § 453). This statutory antecedent compels the conclusion that the scope of section 205-a is limited to property owners and the maintenance of premises in a safe condition for firefighters (see, Citowitz v City of New York, 77 AD2d 642; Gerhart v City of New York, 56 AD2d 790, lv denied 42 NY2d 810; Carroll v City of New York, 37 Misc 2d 563, 569).

Although section 205-a is not to be construed as broadly as plaintiffs urge, the interpretation articulated by the Appellate Division unduly restricts recovery under the statute to violations of only fire preventive provisions. This narrow interpretation is not required by McGee, which held in this regard only that the alleged violations involved there either could not be said to have proximately caused the firefighters’ injuries, or did not constitute violations at all. Rather, in view of its history, it is clear that General Municipal Law § 205-a created a statutory cause of action — where none existed at common law — for firefighters who sustain injuries while engaged in extinguishing a fire on premises wherein the owner or other person in control negligently failed to comply with the requirements of some statute, ordinance, or rule respecting the maintenance and safety of such premises. Thus, the statute affords firefighters protection from those premises harboring violations of safety provisions that create hazards additional to those that firefighters already face in their profession. The scope of the statute therefore may include, but is not limited to, violations of fire preventive regulations (see, e.g., Carroll v Pellicio Bros., 44 Misc 2d 832, mod 26 AD2d 552, appeal dismissed 18 NY2d 708, affd 19 NY2d 658 [violation of ordinance prohibiting bonfires]; Nykanen v City of New York, 14 NY2d 697, affg no opn 19 AD2d 535 [missing guardrails in stairwells]; Mazelis v Wallerstein, 51 AD2d 579 [violation of code requiring removal of building in danger of collapse]; Lyden v Rasa, 39 AD2d 716 [violation of fire escape ordinance]).

Here, the provisions plaintiffs assert as a predicate for liability under section 205-a — Vehicle and Traffic Law § 1224, Administrative Code, chapter 31, § 755 (4)-3.0, and Department of Sanitation General Order No. 5 — are not related to the safety of premises and the failure to comply with their requirements would not increase the risks already inherent in fighting fires generally, or in fighting vehicle fires specifically. These provisions are designed to discourage the abandoning of cars by imposing a penalty upon owners who do so, to give municipalities the power to remove abandoned cars without thereby incurring liability, and to give owners notice of the public sale of such cars (see, Vehicle and Traffic Law § 1224; Administrative Code, ch 31, § 755 [4]-2.0; see generally, 1969 NY Legis Ann, at 465-466). Moreover, General Municipal Law § 205-a has been held not to encompass violations of Vehicle and Traffic Law provisions (see, e.g., Gerhart v City of New York, 56 AD2d 790, lv denied 42 NY2d 810, supra [allegation that defendant driver violated Vehicle and Traffic Law does not trigger section 205-a]; McAvoy v Di Leo, 43 Misc 2d 164, 165, supra [firefighter injured by defendant who disregarded Vehicle and Traffic Law in colliding with fire truck not entitled to recover under General Municipal Law § 205-a]).

Plaintiffs argue next that the Appellate Division erred in dismissing the cause of action alleging common-law negligence on the part of the City in failing to timely remove the abandoned car. While the City has a common-law duty to maintain its streets in a reasonably safe condition (Matter of Friedman v State of New York, 67 NY2d 271, 286; Bottalico v State of New York, 59 NY2d 302, 305; D'Ambrosio v City of New York, 55 NY2d 454) and a statutory duty to remove abandoned cars (Vehicle and Traffic Law § 1224), " '[a]bsent a special relationship creating a municipal duty to exercise care for the benefit of a particular class of individuals, no liability may be imposed upon a municipality for failure to enforce a statute or regulation’ ” (O’Connor v City of New York, 58 NY2d 184, 189, quoting Sanchez v Village of Liberty, 42 NY2d 876, 877-878; Miller v State of New York, 62 NY2d 506, 510; De Long v County of Erie, 60 NY2d 296, 304; Garrett v Holiday Inns, 58 NY2d 253, 261-262; Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 178; Florence v Goldberg, 44 NY2d 189, 195; Riss v City of New York, 22 NY2d 579, 583). Here, plaintiffs failed to show any such "special relationship” (cf., Wolf v City of New York, 39 NY2d 568). Plaintiffs argue, and we have held, that the "special relationship” rule has no application in cases where the government engages in a proprietary function (Schrempf v State of New York, 66 NY2d 289, 294), and indeed, in such cases the government must be "held to the same duty of care as private individuals and institutions engaging in the same activity” (Schrempf v State of New York, 66 NY2d 289, 294, supra; Miller v State of New York, 62 NY2d 506, supra). The contention fails here, however, because Vehicle and Traffic Law § 1224 expressly provides for the exercise of peculiarly governmental functions, including the inspection and determination by the local authority as to whether the abandoned vehicle is suitable for operation on the public highways (Vehicle and Traffic Law § 1224 [5] [a]) and the destruction or replacement of the VIN plate (Vehicle and Traffic Law § 1224 [5] [b], [c]). Indeed, the statute makes it a class A misdemeanor for anyone other than a person authorized by the municipality to "destroy, deface or remove any part of a vehicle which is left unattended on a highway or other public place without number plates affixed or which is abandoned” (Vehicle and Traffic Law § 1224 former [8] [former (8) was repealed by L 1984, ch 390, § 2, and subject matter of former (8) now covered by Penal Law § 165.09]).

Finally, plaintiffs maintain that the Appellate Division erred in dismissing the cause of action alleging negligent conduct on the part of Verdonik in failing to establish "fire lines” and on the part of Ogno in failing to properly park the fire engine. Consistent with the general rule that a municipality is not to be held liable for judgmental errors in the exercise of its governmental functions (see, e.g., Weiss v Fote, 7 NY2d 579, 584-587), ordinarily a "fire department is not chargeable with negligence for failing to exercise perfect judgment in discharging the governmental function of fighting fires” (Harland Enters. v Commander Oil Corp., 64 NY2d 708, 709; see also, McGee v Adams Paper & Twine Co., 26 AD2d 186, 197, supra; Laresca v City of New York, 108 AD2d 790; Kroger v City of Mount Vernon, 104 AD2d 855; Quinn v Nadler Bros., 92 AD2d 1013; see generally, McQuillin, 18 Municipal Corporations § 53.52, at 339 [3d rev ed]). Although a municipality may be held liable for injuries suffered by a firefighter caused by the negligence of a fellow firefighter (see, e.g., Buckley v City of New York, 56 NY2d 300, 305; see also, MacClave v City of New York, 19 NY2d 892, affg 24 AD2d 230; Citowitz v City of New York, 77 AD2d 642, supra; Brazinski v City of Cohoes, 17 AD2d 675, 676), liability will not be imposed where the firefighter’s conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions that, in retrospect show poor judgment, but judgment nonetheless.

While expert testimony established that proper fire fighting procedure called for parking the fire truck behind rather than ahead of the burning vehicle and for the erection of "fire lines”, there was no evidence that these were immutable procedures that must invariably be followed at the scene of a vehicle fire. Indeed, every witness and every regulation left room for judgment and discretion in these matters, depending on the particular circumstances presented. That Ogno might have positioned the engine differently, or that Verdonik might have established a more effective warning to traffic are, under the circumstances of this vehicle fire, matters of judgment within the ambit of ordinary negligence for which no cause of action against a municipality will lie (see, e.g., Kroger v City of Mount Vernon, 104 AD2d 855, 856, supra).

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question not answered as unnecessary.

Titone, J.

(dissenting). I agree with the majority’s conclusion that plaintiffs’ purported cause of action under section 205-a of the General Municipal Law cannot be sustained. I also agree that their common-law negligence claims based upon the City’s failure timely to tow the abandoned vehicle were properly rejected at the Appellate Division. I write separately, however, because I cannot agree that the "error in judgment” rule should be applied to preclude recovery here.

I do not dispute the existence of the broad legal proposition that recovery in negligence cannot be had for mere errors in judgment arising from the particular method that firefighters have chosen to combat a fire (see, e.g, Harland Enters. v Commander Oil Corp., 64 NY2d 708, 709; McGee v Adams Paper & Twine Co., 26 AD2d 186, affd on opn below 20 NY2d 921). Rather, my concern is with the manner in which that principle has been applied in this instance. We held in Harland Enters. v Commander Oil Corp. (supra, at 709), that "[a] fire department is not chargeable with negligence for failing to exercise perfect judgment in discharging the governmental function of fighting fires” (emphasis supplied). Our holding in Harland, however, should not be applied to preclude recovery as a matter of law in cases such as this one.

Unlike this case, Harland involved a property owner’s attempt to recoup damages caused by the manner in which a fire on its premises was fought. Although the court in Harland did not draw a clear distinction based on the plaintiff’s status as property owner, it is apparent that the holding was influenced by the general principle that, absent a special duty, a municipality is not to be held liable for judgmental errors in the exercise of its governmental functions (see, e.g., Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 179; Weiss v Fote, 7 NY2d 579, 584; Kroger v City of Mount Vernon, 104 AD2d 855; Rottkamp v Young, 21 AD2d 373, affd on opn below 15 NY2d 831, cited in Harland Enters. v Commander Oil Corp., supra, at 709). Significantly, the majority’s holding in this case is explicitly premised on the same "general rule” (see, majority opn, at 569), which is clearly derived from the absence of any relationship between a municipality and its citizens that might give rise to a tort duty. Inasmuch as this case involves an effort to recover by a municipal employee, to whom a duty of care is owed, Harland and the other municipal-liability cases cited by the majority are not persuasive precedent for the outcome the majority has reached.

That the municipality does owe a duty of care to the firefighters it employs is apparent from such cases as Buckley v City of New York (56 NY2d 300, affg Lawrence v City of New York, 82 AD2d 485; cf., Wolf v City of New York, 39 NY2d 568), in which the City was held liable for injuries suffered by a firefighter as a result of a co-worker’s negligence. Indeed, the holding in Buckley — that the former fellow-servant rule is no longer viable — would make little sense if the court’s intention was to preclude recovery where a firefighter’s injury resulted from the carelessness of a colleague.

This is not to suggest that I am unwilling to recognize any limits on the right of a firefighter to recover when he is injured in the line of duty as a result of the negligence of a colleague. In light of the special exigencies that firefighters face and the chilling effect that overly rigid application of negligence rules might have on the use of valid but risky fire fighting procedures, some modifications of the principles governing ordinary negligence cases are warranted when a firefighter seeks recovery for on-the-job injury. However, the profession of fire fighting is not so unique that it need be treated differently from every other profession when liability for negligent conduct is in issue. The present litigation fits comfortably within the well-settled rule which assigns to the jury the task of determining whether a claimed negligent act or omission was a pure error in judgment and immune from liability or was, instead, outside the realm of accepted practice and therefore actionable (see, PJI 2:150; see generally, Schrempf v State of New York, 66 NY2d 289, 295-296).

While the majority attempts to bring this litigation within that narrow class of cases in which a court may conclude, as a matter of law, that only an "error in judgment” was involved, it is difficult to imagine a set of facts more appropriate for resolution by a jury. Expert testimony established that the standard operating procedure is to park the fire truck in a location that would both avoid ignition of the truck and furnish a barrier against oncoming traffic. The evidence also showed that the fire department’s own regulations required the establishment, as soon as possible, of "fire lines” to warn nearby pedestrian and vehicular traffic of the fire fighting site. Yet, the fire truck in this case was parked on the far side of the burning vehicle, where it could provide no protection as a barrier. And, the only semblance of a "fire line” to warn oncoming traffic of the presence of firefighters in the middle of the street was a lone officer waving a lantern beside or somewhat behind the main fire fighting operation and behind the smoke that was billowing from the burning vehicle. Certainly, a rational jury could conclude on these facts that no meaningful precautions were taken and that the failure of plaintiffs’ co-workers to erect a barrier or some sort of warning device — on a dark, smoke-beclouded urban street — was not a "mere error in judgment” but rather was a gross departure from the minimal standard of care owed by firefighters to their fellow workers (see, Cohen v Hallmark Cards, 45 NY2d 493).

At some point, a fellow firefighter’s actions must be viewed not as an exercise of imperfect or even poor judgment, but rather as a failure to exercise any judgment at all. A contrary rule would not only deprive firefighters engaged in hazardous activities of the protections that our tort law was designed to afford, but it would also expose them to greater risks by minimizing their employers’ incentive to encourage the exercise of reasonable care. Since this is a case in which the jury, which was properly instructed on the "mere judgment” rule, could well find an absolute failure to exercise judgment or to act within the constraints of professional fire fighting standards, I would reverse the order of the Appellate Division and reinstate the jury’s liability verdict against the City.

Chief Judge Wachtler and Judges Simons, Kaye, Hancock, Jr., and Bellacosa concur with Judge Alexander; Judge Titone dissents and votes to reverse in a separate opinion.

Order affirmed, etc.

       Gardell has not appealed from the affirmance of the finding of liability against him, and thus is not before us.


text:
    In the Matter of the Arbitration between James Greenberg, Respondent, and Ryder Truck Rental, Inc., Appellant.
    Submitted November 19, 1987;
    decided December 17, 1987

      POINTS OF COUNSEL

      Hugh J. Helfenstein and Charles S. Hefter for appellant.

      Robert L. Monsour for respondent.
   OPINION OF THE COURT

Bellacosa, J.

In this no-fault controversy, we must delineate the scope and nature of the judicial function in an "action to adjudicate the dispute de novo” pursuant to Insurance Law § 5106 (c) after the benefits phase of a bifurcated arbitration procedure is completed (see, 11 NYCRR 65.16). The liability phase had been subject to prior narrow judicial review pursuant to CPLR article 75. We hold that the statutory de novo adjudicative role of the courts includes both liability and damages.

Greenberg was allegedly struck and injured by one of Ryder Truck Rental’s (Ryder) vehicles. He sought arbitration against Ryder only as to liability under the bifurcated procedure adopted by the Superintendent of Insurance and set forth in 11 NYCRR 65.16. The first phase of the procedure provides for an arbitration hearing to determine liability and, if liability is found, the second phase proceeds to fix the amount of the award. The arbitrator found Ryder liable and a master arbitrator confirmed the determination. Ryder moved to vacate the liability ruling and to obtain de novo adjudication of Greenberg’s claim (Insurance Law § 5106 [c] [former § 675 (2)]). Special Term confirmed the liability determination of the master arbitrator under the provisions of CPLR article 75 and denied the application for de novo adjudication, as the issue of benefits had not been resolved. Ryder’s appeal to the Appellate Division was not perfected and was subsequently withdrawn.

The second phase, addressing the benefits issue only, ensued under the bifurcated procedure. Ryder was directed to pay Greenberg $15,483.85. Ryder again sought de novo adjudication on the ground that the evidence was insufficient to establish that it was a Ryder truck which hit Greenberg. A procedural pleadings decision and appeal, not directly relevant here, intervened with the case being remanded for further proceedings (Matter of Greenberg [Ryder Truck Rental], 110 AD2d 585).

Greenberg’s answer eventually asserted affirmative defenses in the nature of estoppel, arguing in essence that the prior action confirming the arbitrator’s liability determination precluded a de novo adjudication of that aspect of the award. Special Term found for Ryder and concluded that the intervening proceedings did not preclude de novo adjudication of the liability issue.

On Greenberg’s appeal, the Appellate Division, in the third appeal to that court, reversed and held that there was no basis for rereview under CPLR article 75; that the liability issue had been conclusively adjudicated on the first judicial proceeding and appeal; and, since the only issue in the second phase of the arbitration and second appeal concerned benefits, the liability issue could not be revived and made subject to a de novo adjudication under Insurance Law § 5106 (c) (Matter of Greenberg [Ryder Truck Rental] 122 AD2d 752). On that direction, Supreme Court finally dismissed the complaint for de novo adjudication and awarded Greenberg $15,483.85 for no-fault medical payments.

Ryder now appeals to this court from the final judgment of Supreme Court, which brings up the interlocutory order of the Appellate Division in the third appeal rejecting the de novo adjudication after the damages-only phase of a bifurcated arbitration determination. Ryder argues that once the $5,000 statutory threshold is satisfied, an action de novo on both liability and benefits is statutorily and explicitly mandated (Insurance Law § 5106 [c]). We agree and reverse.

In pertinent part, Insurance Law § 5106 (c) provides: "[t]he award of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator’s award is five thousand dollars or greater * * * the insurer or the claimant may institute a court action to adjudicate the dispute de novo” (emphasis supplied). In establishing this preemptive judicial remedy, the Legislature allowed the Superintendent of Insurance to promulgate an underlying simplified arbitration procedure for resolution of no-fault disputes (see, Insurance Law § 5106 [b] [former § 675 (2)]). That procedure is the bifurcated process set forth in 11 NYCRR 65.16, employed in this case and responsible in part for the prolonged and proliferated judicial activity in this simple, single-issue case.

The natural and plain words of the statute, as enacted prior to the promulgation of the Superintendent’s procedures, require that if the monetary predicate is satisfied, the entire subject matter in controversy, including both the liability and benefits components, is subject to plenary judicial determination.

The governing rule of statutory construction is that courts should look first to the statutory language in question, which is to be "generally given its natural and most obvious meaning (McKinney’s Cons Laws of NY, Book 1, Statutes § 94; see, Association of Contr. Plumbers v Contracting Plumbers Assn., 302 NY 495, 500), and * * * if there is nothing to indicate a contrary intent, terms of general import will ordinarily be given their full significance without limitation (McKinney’s Cons Laws of NY, Book 1, Statutes § 114; Matter of Board of St. Opening, 133 NY 329, 333-334)” (Price v Price, 69 NY2d 8, 15; see also, Matter of Monarch Elec. Contr. Corp. v Roberts, 70 NY2d 91, 98-99). Equally settled is the principle that the statutory language must be construed as a whole (McKinney’s Cons Laws of NY, Book 1, Statutes § 97; People v Mobil Oil Corp., 48 NY2d 192, 199).

Applying the most obvious meaning to the statutory language and giving it full significance, "judicial review” of a master arbitrator’s award is limited to the grounds set forth in CPLR article 75 unless the award is $5,000 or more, in which case the entire dispute is subject to a "plenary judicial adjudication”, something very different from judicial review of some other entity’s determination (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 210). The $5,000 award provision is simply a threshold to acquiring the de novo court adjudication (see, Aetna Life & Cas. Co. v Duthie, 107 AD2d 1009, 1010). It may not be read to constrict the judicial role to the benefits issue only because the statute itself in this respect speaks of de novo judicial adjudication, not arbitral review.

De novo adjudication of the liability issue should not be barred, under an estoppel-like theory, by the prior confirmation of the arbitrator’s liability determination under CPLR article 75 or by the dismissal of Ryder’s application for de novo adjudication because the liability confirmation was based on the narrow standard of "judicial review” and the application for the de novo adjudication was procedurally premature. Ryder never received what it was statutorily entitled to and the fact that the bifurcated arbitration procedure created by Insurance Department regulation has, in part, generated a glut of judicial proceedings in this one no-fault case cannot be held against Ryder. The statute speaks plainly for itself.

The remaining issues raised by the parties are without merit.

Accordingly, the judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the order of Supreme Court granting Ryder’s motion to strike the affirmative^ defenses reinstated.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.