author: Wachtler, J. Meyer, J.

text:
    The People of the State of New York, Respondent, v Ruby Osgood, Appellant. The People of the State of New York, Respondent, v Jocelyn Haynes, Appellant.
    Argued October 14 1980;
    decided December 22, 1980

      POINTS OF COUNSEL

      Erica Horwitz and William E. Heller stein for appellant in the first above-entitled action.
    The criminal action against appellant commenced with the filing of the felony complaint, later dismissed for failure to prosecute, so that the original court properly dismissed the subsequently filed indictment pursuant to CPL 30.30 (subd 1, par [a]) because the People were not ready for trial within six months of the commencement of the action in criminal court. (People v Lomax, 50 NY2d 351; People v Sturgis, 38 NY2d 625; People v Hamilton, 46 NY2d 932; People v Dean, 45 NY2d 651; People v Johnson, 38 NY2d 271; People v Rodney, 94 Misc 2d 994.)

      Eugene Gold, District Attorney (Peter Weinstein of counsel), for respondent in the first above-entitled action.
    The court below properly concluded that the filing of the indictment marked the commencement of the action for speedy trial purposes as the previously filed felony complaint had been dismissed without holding defendant for the action of the Grand Jury. (People v Lomax, 50 NY2d 351; People v Sturgis, 38 NY2d 625; Kastingar v United States, 406 US 441; People v Imbesi, 38 NY2d 629; United States v Marion, 404 US 307; People v Singer, 44 NY2d 241; People v Staley, 41 NY2d 789.)

      Susan C. Thon and William E. Hellerstein for appellant in the second above-entitled action.
    The criminal action against appellant commenced with the filing of the felony complaint, later dismissed for failure to prosecute, so that the Supreme Court properly dismissed the subsequently filed indictment pursuant to GPL 30.30 (subd 1, par [a]) because the People were not ready for trial within six months of the commencement of the action in criminal court. (People v Lomax, 50 NY2d 351; People v Sturgis, 38 NY2d 625; People v Hamilton, 46 NY2d 932; People v Dean, 45 NY2d 651; People v Johnson, 38 NY2d 271; People v Rodney, 94 Misc 2d 994; People v Gruden, 42 NY2d 214; People v Washington, 43 NY2d 772; People v Havelka, 45 NY2d 636.)

      Eugene Gold, District Attorney (A. David Stern of counsel), for respondent in the second above-entitled action.
    The court below properly concluded that the instant criminal action commenced with the filing of the indictment, because appellant was not held for the action of the Grand Jury by the criminal court. (People v Laskowski, 72 Misc 2d 580; People v Rappaport, 173 Misc 113; People v Steiger, 154 Misc 538; People v Lomax, 50 NY2d 351; Kastigar v United States, 406 US 441; Klopfer v North Carolina, 386 US 213; People v Taranovich, 37 NY2d 442; People v Dean, 45 NY2d 651; Barker v Wingo, 407 US 514; People v Singer, 44 NY2d 241.)
   OPINION OF THE COURT

Wachtler, J.

The question on these appeals is whether the prosecutor’s statutory obligation to be ready for trial within six months after commencing a felony action against the accused (CPL 30.30, subd 1, par [a]) should be postponed when the felony complaint, the initial accusatory instrument, is dismissed because of the prosecutor’s inexcusable failure to prosecute.

In People v Haynes, the defendant was arrested on June 11,1977 and, the following day, was arraigned on a felony complaint. A felony hearing originally scheduled for June 27 was, at the People’s request, adjourned first to July 14 and then again to August 3. When the prosecutor was still unable to proceed with the hearing on that latter date, the court dismissed the felony complaint. However, on November 4, 1977 the defendant was indicted for the same offenses originally charged in the felony complaint. The defendant subsequently moved to dismiss the indictment pursuant to CPL 30.30 (subd 1, par [a]). At that point more than six months had elapsed since the filing of the original felony complaint.

In People v Osgood the defendant, arrested on June 1, 1977, was arraigned on a felony complaint the following day. At the People’s request the felony hearing scheduled for June 22 was successively adjourned to August 12, September 7, and September 26. On the latter date the court granted the People an additional adjournment of 30 days, noting that the case was being marked “final” against them. Nevertheless on October 26, the People were still unable to proceed with the hearing and the court dismissed the felony complaint. On December 23, 1977, the defendant was indicted for the same offenses. She was arraigned on February 21, 1978 and the case was adjourned to April 4 at which time she moved to dismiss relying on CPL 30.30 (subd 1, par [a]).

In each case the trial court granted the defendant’s motion to dismiss the indictment. Computing the statutory period from the filing of the felony complaint, the courts found that the People had not met their obligation of being ready for trial within six months of the commencement of the criminal action, and had not provided any satisfactory excuse for the delay. In each case, however, the Appellate Division reversed, holding that the six-month period within which the People must be ready for trial should be measured from the date the indictment was returned whenever the felony complaint has been dismissed and the defendant has not been held for Grand Jury action. Noting that the motions to dismiss were made less than six months after indictment, the Appellate Division determined that the motions should be denied. The defendants have now appealed to this court.

At the heart of our difference with the dissenters is their apparent unwillingness to accept two pertinent facts. The first is that, while speedy trial principles unquestionably prompted the enactment of GPL 30.30, the Legislature, in supplanting the speedy trial rule promulgated by the Administrative Board of the Judicial Conference with its proposed specified time schedules, elected to rely for assurance of basic speedy trial rights on the enforcement of constitutional standards (CPL 30.20) and in addition accorded defendants the new statutory right to a dismissal if the People are not ready for trial within specified time limits (People v Brothers, 50 NY2d 413, 416-418). Thus, cited considerations with respect to the impact of dismissals on speedy trial rights while relevant, surely are not determinative with respect to the application of the ready trial statute. The second fact is that the ready trial statute, which establishes an elaborate and detailed scheme for computing the statutory period, makes allowance for exceptional circumstances and expressly provides for exclusion of certain periods (subd 4) or recommencement of the statutory period (subd 5) when a delay has been caused by the defendant, or is due to circumstances beyond the prosecutor’s control. However, the statute does not provide any dispensation, by way of exclusion or recommencement of the statutory period, when, as in the cases now before us, the felony complaint initiating a criminal action against the defendant is dismissed because of the prosecutor’s inexcusable delay.

It would, of course, be inconsistent, if not perverse, for the Legislature to provide that a statute, designed to insure to the public diligent prosecution of criminal charges filed in court, should be suspended when the District Attorney has inexcusably delayed the prosecution of the case. Nor can it be said that dismissal of the felony complaint, which may only temporarily interrupt the prosecution, eliminates the adverse effects the delay may have on the defendant’s rights —which in this State has always been one of the prime objectives of the various statutes requiring prompt disposition of criminal charges (see, e.g., People v Prosser, 309 NY 353, 356; People v Johnson, 38 NY2d 271, 275-276). Despite the dismissal there is still the danger that the accused will lose witnesses or exculpatory evidence he may need if the prosecution is resumed. The fact that the defendant may not be “held” after the dismissal does not remove this type of risk. On the contrary, dismissal of the charge and release of the defendant may aggravate the problem by creating confusion or uncertainty as to whether the prosecution has dropped the case and, thus, whether there is any need to prepare or preserve a defense. Nor will this type of dismissal relieve the defendant of anxiety and public suspicion when, as here, the dismissal merely serves as an intermission in a prosecution to be resumed at some unannounced date. Indeed this additional uncertainty may well increase the defendant’s anxiety, and, once again, frustrate the legislative purpose.

Nevertheless the District Attorney urges that the statutory period recommenced when the indictment was returned, because it marked the commencement of a second criminal action. Although that result would be inconsistent with the purpose of the six-month ready rule prescribed in CPL 30.30, the prosecutor argues that it is compelled by other sections of the CPL where the Legislature has defined a “criminal action” (CPL 1.20, subd 16), and the “commencement of criminal action” (CPL 1.20, subd 17).

“A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court” (CPL 1.20, subd 17), which includes the filing of a felony complaint (CPL 1.20, subd 1). Thus in this case the filing of the felony complaint commenced a criminal action, and at that point the People incurred the obligation of being ready for trial within six months. The contention that the subsequent return of the indictment, after the felony complaint had been dismissed, commenced a separate criminal action is not compelled or supported by the terms of this statute which, on the contrary, expressly provides that “if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed.” We have only recently noted that the statute contemplates that “there can be only one criminal action for each set of criminal charges brought against a particular defendant, notwithstanding that the original accusatory instrument may be replaced or superseded during the course of the action. This is so even in cases such as this, where the original accusatory instrument was dismissed outright and the defendant was subsequently haled into court under an entirely new indictment” (People v Lomax, 50 NY2d 351, 356).

The District Attorney contends that this statement is overly broad. He notes that in Lomax the trial court had dismissed an indictment and had specifically granted the People permission to resubmit the charge to the Grand Jury, which by statute is “deemed to constitute an order holding the defendant for the action of a grand jury with respect to such charge” (CPL 210.45, subd 9). He claims, however, that when, as here, the defendant has not been held or deemed to be held for further proceedings after dismissal of the prior accusatory instrument, there can indeed be more than one criminal action for any set of criminal charges. This exception is said to be compelled by the fact that the Legislature in defining a criminal action (CPL 1.20, subd 16), stated that it includes “all further accusatory instruments directly derived from the initial one” (emphasis added) and also provided, according to the District Attorney, that it terminates with the final disposition of an accusatory instrument.

The People take the position that an indictment may only be said to be “directly derived” from an earlier accusatory instrument when the defendant has been held for Grand Jury action as a result of the prior accusatory instrument. The term “directly derived”, however, is not defined anywhere in the CPL and thus there is no indication that the Legislature intended it to have any special meaning, or the peculiar meaning ascribed to it by the People. The ordinary meaning of the word “derive” is simply to “trace” or “originate” (see, e.g., Webster’s New World Dictionary) and realistically, the cases now before us can be traced to the felony complaints which originated the prosecution against these defendants for the same felonies now charged in the indictments. Certainly we are not precluded from giving a word its ordinary meaning when the Legislature has not seen fit to define it as a term of art.

Furthermore the statute defining a criminal action is more inclusive than the prosecutor’s analysis would seem to suggest. It goes on to provide that the criminal action also includes “all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument, or which, regardless of the court in which they occurred or were made, could properly be considered as a part of the record of the case by an appellate court upon an appeal from a judgment of conviction” (CPL 1.20, subd 16, par [b]). Here, of course, the felony complaint and the order dismissing it are part of the-record on appeal from the order dismissing the indictment. Since it would also be a part of the record if the defendant had been convicted following a denial of the motion to dismiss the indictment, it cannot be said that the complaint and the indictment are not part of the same criminal action.

Finally and most importantly, there is no support for the contention that the criminal action initiated by the filing of the felony complaint was completely terminated when the complaint was dismissed. The statute does not provide that a criminal action terminates with the final disposition of any accusatory instrument. Actually the statute states that the criminal action “terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case” (CPL 1.20, subd 16, par [c] [emphasis added]). Here the dismissal of the felony complaint may have finally disposed of the first accusatory instrument in the case. But as long as the District Attorney is free to continue the prosecution by obtaining an indictment, dismissal of the felony complaint cannot be said to have disposed of, finally or otherwise, the last accusatory instrument “in the case”.

In sum, the six-month ready rule was meant to eliminate unjustified delays and was not intended to provide rewards or incentive for delay. The prosecutor’s argument that the return of the indictment, after dismissal of the felony complaint for inexcusable delay in prosecution, commenced a new criminal action and renewed the six-month period, is inconsistent with that purpose and is not commanded by anything the Legislature has said. There are, at best, what the dissenter terms “indicia” or ambiguities, all of which can and should be interpreted in such a way as to carry out the legislative intent.

Accordingly, the orders of the Appellate Division should be reversed and the cases remitted to the Appellate Division for review of the facts, if any.

Meyer, J.

(dissenting). This appeal illustrates the frailty of the English language and contrast in judicial philosophies. To bring the problem it presents more clearly into focus, it is important to note that we deal not with the constitutional due process right to a speedy trial, but with what the Legislature meant to require when it enacted CPL 30.30. The majority concludes that the section must be interpreted to require dismissal of a felony indictment and consequent bar to further prosecution of its charge or charges (CPL 210.20, subd 4), without trial, without any indication of prejudice to the defendant, and without any suggestion of unconscionable or improper conduct on the part of the People, in every situation in which a felony complaint is dismissed without defendant being held for the Grand Jury and the subsequently returned Grand Jury indictment is not brought to trial within six months from the date of filing of the felony complaint. In my view so to interpret the section constitutes not interpretation but judicial legislation. I, therefore, respectfully dissent.

Because we construe statutes “in a judicial role and do not function as legislators” (Allen v Cloutier Constr. Corp., 44 NY2d 290, 300-301), they are generally to be read as written even if the consequences seem unwise or undesirable to the courts (People v Kupprat, 6 NY2d 88, 90; McKinney’s Cons Laws of NY, Book 1, Statutes, § 73). Interpretation encompasses not only the words but also the spirit or purposes of an enactment, but when a court deals with an enactment which is “a fully integrated and comprehensive scheme of regulation,” such as the Criminal Procedure Law, it “cannot and should not weigh policy considerations or use creative interpretation in the application of the statutory command” (Tate, The Law-Making Function of the Judge, 28 La L Rev 211,218). Viewed against the background of its enactment and in the matrix of the definitions and procedural directions of the CPL of which it was made a part, CPL 30.30 cannot reasonably be interpreted as requiring dismissal in the circumstances of the present cases, for a number of reasons.

Of prime importance among those reasons is the background against which the section was enacted. As the United States Supreme Court had recognized in 1905 in Beavers v Haubert (198 US 77, 87), the constitutional right to a speedy trial secures rights to the defendant but does not preclude the rights of public justice and, furthermore, is necessarily relative. In an effort to quantify and simplify the respective rights a number of States had, by the time CPL 30.30 was proposed for adoption, enacted laws or adopted procedural rules which defined the respective rights more narrowly than does the Constitution, essentially by fixing an outside time limit and stating what delays were to be excused (for good cause) in computing that time (American Bar Association, Standards Relating to Speedy Trial [Approved Draft, 1968], pp 14-16).

New York’s CPL, enacted in 1970, did not do so. Rather it simply carried over the declaration of section 8 of the Code of Criminal Procedure (see, also, Civil Rights Law, § 12) that “the defendant is entitled to a speedy trial,” thus simply repeating the language of the Sixth Amendment to the United States Constitution. Prior to the effective date of the CPL, howéver, the Administrative Board of the Judicial Conference promulgated a series of rules intended to provide á time-period definition of the right to speedy trial, which specified the time within which a criminal action had to be brought to trial (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 30.30, 1980-1981 Supp, pp 63-65). With the obvious purpose of balancing the interests of the State in prosecuting criminal offenses with those of persons accused not to be subjected indefinitely to the obloquy and other detriments of public accusation, the Legislature enacted CPL 30.30 which requires only that the People be ready for trial within a specified time after a criminal action is begun, rather than that the case be brought to trial within that time. Furthermore, it made the section effective on the day the Administrative Board Rules were to go into effect and expressly stated (L 1972, ch 184, § 5) that the section “shall be deemed to supersede any rule of the Administrative Board of the Judicial Conference specifying periods of time within which a criminal action must be brought to trial, and any such rule heretofore or hereafter adopted shall be of no force or effect.”

Relevant also to an understanding of CPL 30.30 is the work of the American Bar Association’s Project on Minimum Standards for Criminal Justice, the Advisory Committee on Criminal Trial of which had recommended Standards Relating to Speedy Trial which were approved by the ABA House of Delegates in February, 1968. The significance of those standards is twofold. First, the prestigious committee of Federal and State Judges, prosecutors, defense attorneys and professors who drafted the standards saw fit to distinguish, with respect to dismissal followed by a later charge for the same offense, between dismissal at the instance of the prosecutor, which under subdivision (f) of section 2.3 simply tolls running of the time period, and dismissal on defendant’s motion, which under subdivision (b) of section 2.2 started the time running anew. The committee quoted from People v Hamby (27 Ill 2d 493, 496) the reason for the difference in treatment: “ ‘Were it otherwise the People would be obliged to either successfully defend all such motions or incur the risk of the accused being discharged under the statute. Such perfection cannot be demanded, even of the people, nor should such a weapon to permit potential abuse be placed in the hands of an accused’ ” and added in its comment: “Of course, if the defendant successfully moves for dismissal on the ground that the time for trial has already run, this is an absolute bar (see § 4.1). More difficult is the question of what the result should be when the time for trial has already run and the defendant fails to raise this issue but instead obtains a dismissal on some other ground which in itself does not bar a new charge. Although effective arguments can be made either way, on balance it seems preferable to start the time running again from the subsequent arrest or charge.” As to the situation of the present cases, where the time for trial has not yet run when there is a dismissal on other grounds followed by another charge for the same offense, the committee, referring to the annotation at 30 ALR2d 462, noted that “no clear-cut pattern is discernible” but that counting from the first charge “is more likely if the dismissal was not at the instance of the defendant” (Standards Relating to Speedy Trial [Approved Draft, 1968], p 24). The second aspect of the significance of the standards is that the bill which became CPL 30.30, though sponsored by the Governor, emanated from a bill prepared by the State District Attorneys’ Association (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 30.30, 1980-1981 Supp, p 63). Inasmuch as the drafters of the bill undoubtedly were aware of the earlier prepared standards, the fact that CPL 30.30 does not speak directly to the situation of a dismissal (whether at the instance of defendant or of the prosecution) of charges without holding defendant for the Grand Jury followed by an indictment for the same charge strongly suggests that the drafters believed (correctly, as is argued below) that in such a case the time started running again from the subsequent indictment. In such a situation the person accused is not held indefinitely in limbo, as was the defendant in Klopfer v North Carolina (386 US 213). There the effect of North Carolina’s nolle prosequi with leave to restore procedure was indefinitely to suspend the Statute of Limitations. Under our CPL, as Mr. Justice David Gibbons noted in People v Laskowski (72 Misc 2d 580, 586), after a felony complaint is dismissed and the defendant dischárged, “the matter resume [s] the status of a criminal cause which could lie dormant until the expiration of the applicable Statute of Limitations, or, if sooner presented to a Grand Jury, it could ripen into an indictment.” There are, moreover, circumstances even more cogent than those envisioned by the Illinois court in People v Hamby (supra), in which the People should not be deprived of obtaining additional time for further investigation by asking dismissal of the proceeding first begun. One such case would be that in which after a prosecutor initiates an action the strength of the evidence on which he was proceeding is seriously compromised, as, for example, when subsequent investigation casts serious doubt on the veracity of a key witness or such a witness dies or absconds (cf. People v Nizza, 95 Misc 2d 74; People v Laskowski, 72 Misc 2d 580, supra; see Matter of Forte v Supreme Ct. of State of N. Y., 48 NY2d 179, 182, n 1). The Legislature may reasonably have concluded that under such circumstances a District Attorney should not be limited to asking a continuance but rather should be allowed to seek dismissal of a pending felony complaint without thereby having forfeited the People’s right to prosecute for the crime involved should further investigation produce evidence pointing to defendant’s guilt sufficient to fill the unexpected gap. Based on analysis of the section in relation to the CPL as a whole, I believe the Legislature intended just that.

If we turn from the background of CPL 30.30 to analysis of its wording in relation to the CPL, resolution of the appeals before us turns on when within the meaning of CPL 30.30 (subd 1, par [a]) the criminal actions of which dismissal was sought commenced. When a criminal action is commenced is defined in both CPL 100.05 and CPL 1.20 (subd 17). CPL 100.05 provides that: “A criminal action is commenced by the filing of an accusatory instrument with a criminal court, and if more than one such instrument is filed in the course of the same criminal action, such action commences when the first of such instruments is filed. The only way in which a criminal action can be commenced in a superior court is by the filing therewith by a grand jury of an indictment against a defendant who has never been held by a local criminal court for the action of such grand jury with respect to any charge contained in such indictment. Otherwise, a criminal action can be commenced only in a local criminal court” (emphasis supplied). Since both a felony complaint and an indictment are within the definition of “accusatory instrument” (CPL 1.20, subd 1), the crucial question for the present cases is whether the subsequent accusatory instrument (the indictment) was filed “in the course of the same criminal action,” within the meaning of the first sentence of CPL 100.05, that is to say, whether the indictment obtained after dismissal of the felony complaint without the holding of defendant for Grand Jury action began a new criminal action or is but the continuation of the criminal action begun by the filing of the felony complaint. Clear from CPL 180.70, which describes proceedings upon a felony complaint, is it that until conclusion of the hearing on such a complaint a defendant has not been held for action of a Grand Jury and that when the complaint is dismissed and the defendant discharged defendant “has never been held by a local criminal court for the action of [the] grand jury” which later indicts him. No other conclusion is possible under the second sentence of CPL 100.05, therefore, than that filing of the Grand Jury indictment commences the criminal action on the charges made by the indictment and is not an accusatory instrument “filed in the course of the same criminal action” (emphasis supplied) as the dismissed felony complaint.

The same result follows if we look at CPL 1.20 (subds 16, 17). The latter defines “Commencement of criminal action” in words almost identical with the first sentence of CPL 100.05; the former defines “Criminal action” as follows: “A criminal action (a) commences with the filing of an accusatory instrument against a defendant in a criminal court, as specified in subdivision seventeen; (b) includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument, or which, regardless of the court in which they occurred or were made, could properly be considered as a part of the record of the case by an appellate court upon an appeal from a judgment of conviction; and (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case” (Emphasis added.)

Can it be said that the indictments in the two cases before us were “directly derived” within the meaning of paragraph (b) from the felony complaint? In each case, of course, the complaint and the indictment derived from the same facts, but in neither did the indictment derive “directly” from the complaint, as, for example, was the case in People v Lomax (50 NY2d 351), where on defendant’s motion under CPL 210.30 to dismiss an indictment for legal insufficiency of the evidence presented to the Grand Jury the People asked and were granted leave to resubmit, the authorization to resubmit being, by express provision of CPL 210.45 (subd 9) “deemed to constitute an order holding the defendant for the action of a grand jury with respect to such charge.” An indictment may be said to be “directly derived” from an earlier accusatory instrument whenever the defendant is as a result of the earlier instrument held for action by the Grand Jury that later indicts him; for examples, after a preliminary hearing (CPL 180.70, subd 1), or waiver of the right to preliminary hearing (CPL 180.30, subd 1). It cannot be said to be “directly derived”, as the majority would have it, simply because it can be “traced to” the felony complaint, whatever that may mean, in the face of the provisions of CPL 100.05 and 180.70 already discussed. Nor should the language of CPL 1.20 (subd 16, par [b]) with respect to proceedings which could be part of the record on appeal be construed, as the majority suggests, to make the felony complaint part of the same cause of action in view of the generality of that language and the more specific provision of CPL 100.05 to the contrary, and in view of the reference in paragraph (b) to “such accusatory instrument,” the antecedent for that phrase being “accusatory instruments directly derived from the initial one.”

The language of paragraph (c) of subdivision 16 bears out that view. According to it a criminal action terminates with “final disposition” of an accusatory instrument. While “final disposition” is not a term defined by the CPL, we have already seen that CPL 180.70 (subd 4) requires that absent reasonable cause to believe defendant committed any offense, the court “must dismiss the felony complaint and discharge the defendant from custody * * * 0r * * * exonerate the bail.” To those clear indicia of final disposition may be added CPL 160.50 which requires that upon termination of a criminal action in favor of the person accused all official records and papers be sealed and that photographs, fingerprints and the like be returned, and which provides in paragraph (b) of subdivision 2 that “a criminal action * * * shall be considered terminated in favor” of the person accused where an order to dismiss a felony complaint has been entered under CPL 180.70. Of interest in this connection also are CPL 180.10 (subd 6) which provides that at arraignment the court must make a bail determination “unless it intends immediately thereafter to dismiss the felony complaint and terminate the action,” CPL 160.60 which directs that upon termination of a criminal action, as defined in CPL 160.50 (subd 2), “the arrest and prosecution shall be deemed a nullity” (emphasis supplied) and the accused shall be restored to his previous status, and CPL 30.10 (subd 4, par [b]) which for purposes of timeliness recognizes as “a new charge” a second accusatory instrument filed after dismissal of the first such instrument “under directions or circumstances permitting the lodging of another charge for the same offense,” and excludes the period from the filing of the first accusatory instrument to its dismissal from the computation of the Statute of Limitations as to the second.

Against these multiple indicia of legislative intent that dismissal of a felony complaint without holding defendant for the Grand Jury terminates, and therefore is a final disposition of, the action begun by the filing of the felony complaint, the majority stresses the use in paragraph (c) of the words “last accusatory instrument filed in the case.” Simply stated, that is a bootstrap argument. There can be more than one accusatory instrument in a case, but for the reasons already stated at length there is a new case when a criminal action is begun by superior court indictment against a defendant who was not held for Grand Jury action when the felony complaint against him was dismissed by the local criminal court. By assuming that the two accusatory instruments are filed in the same case the majority begs the question.

Defendant argues further, and the majority appears to indorse the contention, that for purposes of the speedy trial policy enacted by CPL 30.30 the indictment cannot be regarded as beginning a separate action because a part of that policy, set forth in paragraphs (c) and (d) of subdivision 5 of the section, is to prevent the District Attorney from extending the statutory period by converting or replacing a pending accusatory instrument. No such inference can be drawn, for a number of reasons. First, those paragraphs do extend the time, except when the applicable period has run before the new accusatory instrument is filed. Secondly, they are carefully worded to deal only with a replacement accusatory instrument filed “in the same criminal action” (emphasis supplied). Thirdly, they do not deal with an indictment as the replacement instrument because there is no need to do so, the time periods under subdivisions 1 and 2 being the same for a felony complaint and for an indictment, since both involve felony charges. It cannot be deduced from those subdivisions that the Legislature sought to foreclose use of a period longer than six months from the filing of the felony complaint, under the circumstances of the present cases, in which the indictment is not in the same criminal action, for doing so would ignore the clear language of CPL 100.05.

No more reason for ignoring the distinction, clearly drawn throughout the CPL, between an indictment returned in the same criminal action against a defendant held on felony complaint for Grand Jury action and an indictment filed as a new charge after the felony complaint is dismissed without holding defendant for further action, can be found (as the majority’s footnote 1 suggests) in the provisions of CPL 30.30 (subd 4, par [g]), for a continuance when required by exceptional circumstances. The very word “continuance” speaks to the same, not a different, criminal action. There is no reason to conclude from that provision alone, in the face of the distinction noted above, that the Legislature intended to foreclose the possibility of the District Attorney gaining time by not asking, in response to defendant’s motion to dismiss, that defendant be held for Grand Jury action or by obtaining dismissal of the felony complaint himself. Not every dismissal without holding defendant for the Grand Jury followed by indictment results in the detriments to persons accused to which the majority refers, and none have been demonstrated in the present cases. The Legislature could, of course, have dealt directly with the problem, but could also have concluded that there was no need to do so in light of its constantly repeated use of the phrase “in the same criminal action.” Its failure to distinguish between dismissal on motion of defendant and dismissal at the behest of the prosecutor, despite the distinction elsewhere drawn in case law and proposed rules between those situations, bespeaks an intention to be more rather than less lenient in permitting prosecution. Its failure to speak explicitly to the situation of the instant cases may stem from a like attitude, especially since only felony charges can be involved.

With respect, I find the “anomalies” referred to in footnote 2 of the majority opinion nonexistent. The supposition that manipulation of defendant’s right to counsel will result from a holding that dismissal of a felony complaint terminates the action is answered by our decision in People v Skinner (52 NY2d 24 [decided herewith]), which holds that neither the absence of formal commencement of the criminal action nor the fact that defendant is not in custody at the time of interrogation will prevent invocation of the right to counsel by a defendant known by the State to have counsel in a pending criminal investigation. The suggestion that a suppression determination made before dismissal of a felony complaint would have no effect on the trial of the indictment ignores the possible collateral estoppel effect of the determination (see People v Plevy, 52 NY2d 58 [decided herewith]). The contentions based on the effect on nonfelony cases wholly overlook the unique nature of a felony complaint, which is never the accusatory instrument upon which a felony charge is ultimately prosecuted (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL art 180, p 58), and in any event would arise not from anything germane to the statutes involved in the present appeals but from the omission from CPL 170.30 of a provision against resubmission similar to that contained in CPL 210.20 (subd 4).

To hold the charges involved in the present appeals not dismissible does not leave the defendants without protection against undue delay, for there remains the due process protection which we have not infrequently enforced (e.g., People v Singer, 44 NY2d 241; People v Staley, 41 NY2d 789; People v Taranovich, 37 NY2d 442). The only issue before us is whether the Legislature by enacting CPL 30.30 intended to require dismissal without trial'and without any demonstration of prejudice in the unique situation of these cases. The majority bases the conclusion that it did on a legislative purpose more procrustean than I believe can be found in the statute, bearing in mind its background and the language it uses. No express provision of the statute requires the result reached, and the purpose behind its enactment has not been so clearly articulated in relation to the situation of the present cases as to warrant our predicating dismissal upon the spirit or purpose of the statute alone. At most there exists a gap which should be filled by the Legislature, not by this court.

In each case, the order of the Appellate Division should be affirmed.

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

In each case: Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

      . The dissenter’s suggestion that the Legislature may have intended a “gap” in the prosecution in order to allow the People additional time to investigate when they discover a weakness in their case after having commenced the action, ignores the fact that CPL 30.30 (subd 4, par [g]) expressly authorizes a continuance for “exceptional circumstances, including but not limited to” loss of material evidence or the need for “additional time to prepare the people’s case”.

      . Acceptance of the District Attorney’s position would undoubtedly produce confusion, mischief or anomalies in other areas.
      For instance, the defendant’s right to counsel which attaches upon the filing of a felony complaint, thus precluding the police from questioning the defendant by acquiring a waiver of counsel in the absence of counsel (People v Samuels, 49 NY2d 218) would now arguably disattach once the felony complaint is dismissed or withdrawn by the police, thus permitting the defendant to be manipulated into his waiver of counsel where he is once again vulnerable to uncounseled questioning.
      Any determination made in a suppression hearing prior to dismissal of a complaint (CPL 710.50, subd 1, par [b]) would apparently have no effect on the trial of the indictment which would be considered an entirely different criminal action.
      In nonfelony cases the District Attorney’s argument would seem to completely undermine the readiness rule. In those cases, a dismissal of the accusatory instrument for failure to be ready for trial within the statutory period would not preclude the People from filing another accusatory instrument (compare CPL 170.30, with CPL 210.20, subd 4, prohibiting the People from obtaining another indictment when the prior indictment was dismissed for failure to comply with the readiness rule; see, also, CPL 210.20, subd 1, par [g]; CPL 30.30, subd 1). Under the prosecutor’s theory, the filing of the new accusatory instrument would commence a new criminal action renewing the statutory period, and allowing additional “renewals”, apparently without limit unless, as the dissent vaguely suggests, there is a showing of “bad faith” in addition to neglect. Thus in these cases there would be no fixed time limit and the readiness rule would simply be converted into a bad faith rule. It is no answer to say that the speedy trial provisions in other statutes and the Constitution will ultimately fix an outside limit. If the Legislature had found those provisions to be an adequate response to the problem of pretrial delay in the criminal courts, it would not have enacted CPL 30.30.

      . CPL 1.20 (subd 17), which is essentially the same as the first sentence of CPL 100.05, uses the words “in the course of the action.” Omission of the words “same criminal” before “action” is not regarded as significant.

      . In pertinent part the subdivision reads: “5. For purposes of this section, * ** * (c) where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor’s information or misdemeanor complaint pursuant to article 180 or a prosecutor’s information is filed pursuant to section 190.70, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed; (d) where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor’s information or misdemeanor complaint pursuant to article 180 or a prosecutor’s information is filed pursuant to section 190.70, the period applicable for the purposes of subdivision two must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds ninety days, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.”


source: Caselaw Access Project

author: Wachtler, J. Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Jules E. Plevy, Appellant.
    Argued November 20, 1980;
    decided December 22, 1980

      POINTS OF COUNSEL

      Kent V. Moston, Matthew Muraskin, Michael J. Obus and Richard Greenberg for appellant.
    I. The court erred in holding that appellant was collaterally estopped from contesting the issue of consent in a suppression hearing. (People v Baldwin, 25 NY2d 66; People v Williams, 24 AD2d 274; People v Terrell, 53 Misc 2d 32, 30 AD2d 644; People v Reisman, 29 NY2d 278, 405 US 1041; People v Williams, 40 AD2d 586; United States v Carlisi, 32 F Supp 479; United States v Bruno, 333 F Supp 570; Sanders v United States, 373 US 1; Zurita v United States, 410 F2d 477; Clark v Nickeson, 321 F Supp 415.) II. Proof of guilt was not established beyond a reasonable doubt. (People v Beardon, 290 NY 478; People v Cleague, 22 NY2d 363; People v Suffern, 267 NY 115; People v Montanez, 41 NY2d 53; People v Tyler, 62 AD2d 146; People v Davila, 59 AD2d 536; People v Porter, 56 AD2d 583; People v Smith, 39 AD 2d 855; People v Volpe, 20 NY2d 9; People v Galbo, 218 NY 283.) III. The court’s definition of “inference”, in response to a jury request was prejudicial error. (People v Jackson, 20 NY2d 440, 391 US 928; People v Miller, 6 NY2d 152; People v Perez, 54 AD2d 1009; People v Weiss, 290 NY 160; People v Botteri, 50 AD2d 540; People v McNair, 48 AD2d 860.)

      Denis Dillon, District Attorney (Bruce E. Whitney and William C. Donnino of counsel), for respondent.
    I. Defendant’s guilt was established beyond a reasonable doubt. (People v Rumble, 45 NY2d 879; People v Licitra, 47 NY2d 554; People v Eisenman, 39 NY2d 810; People v Andrus, 38 NY2d 925; Knickerbocker v People, 43 NY 177; People v Galbo, 218 NY 283; People v Butler, 44 AD2d 423, 36 NY2d 990; People v Volpe, 20 NY2d 9; People v Richardson, 16 AD2d 914, 13 NY2d 763.) II. Defendant was collaterally estopped from contesting the validity of his consent to the officer’s entry into his home. (People v Baldwin, 25 NY2d 66; People v Brown, 56 AD2d 543; People v Williams, 24 AD2d 274; United States v Broward, 594 F2d 345, 442 US 941; Ashe v Swenson, 397 US 436; Matter of McGrath v Gold, 36 NY2d 406; United States v Oppenheimer, 242 US 85; Sealfon v United States, 332 US 575; People v Lo Cicero, 14 NY2d 374; People v Reisman, 29 NY2d 278.) III. The trial court’s charge on the definition of “inference” was proper. In any event, it was not objected to and is thus not reviewable by this court. (People v Duncan, 46 NY2d 74; People v Utley, 45 NY2d 908; People v Cicchetti, 44 NY2d 803; People v Gruttola, 43 NY2d 116; United States v Grow, 394 F2d 182.)
   OPINION OF THE COURT

Wachtler, J.

In two separate, and unrelated, prosecutions for murder and burglary the defendant moved to suppress evidence seized from his room pursuant to several search warrants which were based, in part, on observations made by a police officer while in the defendant’s room. The defendant urged in each case that he did not consent to the initial police entry of his room. In the murder prosecution the issue was decided against the defendant after a hearing at which he chose not to testify. At the suppression hearing in the burglary case, conducted after the defendant’s conviction for murder, the defendant offered to testify on the consent issue but was held to be collaterally estopped from relitigating the point.

The defendant now appeals from an Appellate Division order affirming his conviction, after trial, for burglary and petit larceny. He claims that collateral estoppel should not be employed against a defendant at any stage of a criminal case, including a pretrial suppression hearing; and, alternatively that even if the doctrine is generally applicable, the court should not have employed it under the circumstances of this case. The District Attorney disputes these contentions and, in the alternative, urges that if the court erred in holding the defendant collaterally estopped on the consent issue, a new hearing is not required because even if the observations in the defendant’s room were excluded, the information remaining in the warrant application would alone be sufficient to establish probable cause.

On September 26, 1975 one of the defendant’s neighbors informed the police that a man, fitting the defendant’s description, had placed a tan plastic bag containing a woman’s clothing, identifying papers and personal effects in a garbage can in front of the neighbor’s Lynbrook home. The bag also contained a surgical glove, blackened goggles and other items. The police in Nassau discovered that the personal items belonged to a young woman who had been reported missing by her father in Kings County, and who was later found to have been murdered. Another neighbor told the police that she had seen a man carrying the bag through her backyard toward the street, after which he returned without the bag and entered the house behind hers. The police placed that house under surveillance.

Later in the day, seeing the silhouettes of two men and a woman against one of the windows, a police officer went to the door to investigate. The door was answered by the defendant, who fit the description of the man who had been seen carrying the bag. The officer told the defendant that his name had come up during an investigation, and asked the defendant if he would come to headquarters to answer some questions. The defendant agreed and went to his room to get a jacket. According to the officer the defendant also agreed that the officer could accompany the defendant to his room where the officer observed a tan plastic garbage bag, a surgical glove, butcher knife and meat cleaver.

At the police station the defendant, assisted by an attorney, signed a statement in which he claimed that he had found the bag, brought it to his home, gone through it looking for valuable items, and finding none, placed it in a neighbor’s garbage can.

The following day, September 27, all of this information, including the signed statements of the defendant and his neighbors, was presented to a Justice in Nassau County in support of an application for a search warrant. That same day the police returned with the warrant and seized a tan plastic garbage bag, surgical glove, knife and cleaver from the defendant’s room. While executing that warrant, the officers came across evidence of two burglaries, including a money bag bearing a bank serial number which, they discovered, had been reported stolen from a beauty parlor in Oceanside.

The police then obtained a second warrant, which is the subject of this appeal. On September 29, Nassau police officers executed the warrant and recovered the evidence of the burglaries from the defendant’s room. On that occasion they were accompanied by New York City police officers who were executing another search warrant issued by a New York City Justice in connection with the murder.

In Kings County the defendant was indicted for murder. In Nassau County he was indicted for burglary and related offenses committed at the Oceanside beauty parlor.

Prior to trial on the murder charge the defendant moved in Kings County to suppress the evidence seized when the New York City warrant was executed. He contended that this warrant had been issued in violation of certain statutory requirements and that in executing the warrant the police had, in some instances, searched places and seized evidence not authorized in the warrant. He also sought to show, by cross-examination of the Nassau County police officer, that the initial entry of the defendant’s room on September 26 was a trespass and that all the evidence subsequently obtained was tainted. The officer, however, testified that the defendant had given him permission to accompany him while he obtained his jacket. The defendant, as indicated, chose not to testify at this hearing.

At the conclusion of the hearing the court delivered an oral opinion from the Bench in which he granted the defendant’s motion in part and suppressed certain items taken from places not specified in the warrant. When the defendant requested a ruling on the consent issue the court stated that he credited the police officer’s testimony, specifically noting that there was no testimony to the contrary.

A jury subsequently found the defendant guilty of murder. The conviction was affirmed by the Appellate Division (60 AD2d 896) and leave to appeal to this court was denied (44 NY2d 956).

After defendant’s conviction for murder in Kings County he was brought to trial on the burglary charge in Nassau County. Prior to that trial he moved to suppress the evidence taken from his room pursuant to the second Nassau County warrant executed on September 29. First he claimed that the warrant application contained material false statements of fact. Secondly, he urged, as he had in the earlier suppression hearing, that he did not consent to the police entry of his room on September 26. At this proceeding, however, he offered to testify on the point. He claimed that he had not been able to fully litigate the issue, by testifying on his own behalf, at the hearing in the murder case because he did not want his testimony to be used against him in any way, even for the limited purposes of impeachment, in view of the seriousness of the charge he faced at the trial in that case.

The court conducted a hearing on the defendant’s first point and found that, despite some inconsistencies or inaccurate statements with respect to the timing of certain events, there were no material false statements. On the second point, however, the court held the defendant was precluded from testifying or otherwise relitigating the consent issue which had been decided against him at the prior hearing where he had a full opportunity to testify, although he had chosen not to do so.

As indicated, the defendant was convicted at trial. The Appellate Division affirmed in an opinion in which it concluded that all the prerequisites for the application of collateral estoppel had been met in this case. The court recognized that in Matter of McGrath v Gold (36 NY2d 406) we had held that the District Attorney could not be collaterally estopped by a suppression determination made in another case because the order was not final. Here, however, the Appellate Division concluded that the order denying suppression in the murder case had become final and, thus binding upon the defendant in the burglary case, once he had been convicted on the murder charge.

The common-law doctrine of collateral estoppel is designed to conserve the time and resources of the court and parties by precluding a party from litigating an issue which was resolved against him in another action where he had a full and fair opportunity to contest the determination (Schwartz v Public Administrator of County of Bronx, 24 NY2d 65). The doctrine, however, is not to be rigidly or mechanically applied and must on occasion, yield to more fundamental concerns (People v Berkowitz, 50 NY2d 333, 344). It serves an important role in civil cases, where it originated and where society’s primary concern is to provide a means of peaceful, swift and impartial resolution of private disputes (People v Berkowitz, supra, at p 345.) It is less relevant in criminal cases where the pre-eminent concern is to reach a correct result and where other considerations peculiar to criminal prosecutions may outweigh the need to avoid repetitive litigation (People v Berkowitz, supra, at pp 344-345). Thus, although it is frequently said that collateral estoppel applies to criminal cases (see, e.g., Matter of McGrath v Gold, 36 NY2d 406, 411, supra; Matter of Levy, 37 NY2d 279, 281; People ex rel. Dowdy v Smith, 48 NY2d 477, 482-484; People v Berkowitz, supra, at p 344) it cannot be applied in quite the same way as in civil cases (People v Reisman, 29 NY2d 278, 285).

In this case the defendant offered evidence, his own testimony, which was not introduced to the court at the prior suppression hearing in the murder case. The defendant’s testimony must be considered important proof bearing directly on the correctness of any determination as to whether he consented to the entry of his room, and it could well alter the result. Indeed at the suppression hearing in the other case, the court noted that the finding that the defendant consented was virtually dictated by the fact that the police officer’s testimony was not contradicted.

The defendant, of course, could have testified at the first suppression hearing, and thus had the opportunity to fully litigate the issue at that time, in the sense that he had a legal right to do so. However, when the application of collateral estoppel is at issue, any question as to whether a party had “a full and fair opportunity” to litigate the prior determination is not concluded by a finding that there was no violation of due process. The court must also consider the “realities of the [prior] litigation”, including the context and other circumstances which, although not legal impediments, may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him (see Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, supra; Parklane Hosiery Co. v Shore, 439 US 322, 330-331). The Appellate Division felt that the seriousness of the murder charge provided sufficient incentive to the defendant to fully litigate at every stage, especially prior to trial where a favorable determination might eliminate the need to face the charge at trial. However, the seriousness of the charge may well have the opposite effect of discouraging the defendant from testifying or revealing the nature of his case at preliminary proceedings for fear that his testimony may somehow aid the prosecution in obtaining a conviction at trial. Thus, from a practical viewpoint, the defendant faced a risk at the first hearing, in the murder case, that he did not face at the hearing in this case, at which point he attempted for the first time to fully litigate the consent issue by offering to testify on his own. behalf.

The defendant’s decision not to testify at the first hearing but to do so in this case was a legitimate one. Constitutionally the accused has the right to testify or not to testify at any criminal action or proceeding. The doctrine of collateral estoppel cannot be said to be superior to those rights, particularly when it operates to preclude the court from considering evidence which was not available to the court at the prior proceeding, and which if considered here would have involved a minimal expenditure of time in a hearing already under way.

Our conclusion that the defendant should not have been held to be collaterally estopped from disputing the consent issue does not require reversal or a new hearing in this case. There is no need to conduct a hearing on the contested statements if the remaining information in the warrant application is itself sufficient to establish probable cause (see, e.g., Franks v Delaware, 438 US 154, 171-172; People v Seidita, 49 NY2d 755). In this case, if we ignore everything that occurred after the police entered the defendant’s room, the other information submitted in support of the warrant application — the statements of the victim’s father, and the various neighbors, as well as the testimony and reports of the police investigation up to that point — show that the defendant was in recent possession of a bag containing torn and disfigured clothing, undergarments, personal papers and effects of a young woman who had been reported missing for several days; that the bag also contained one surgical glove, darkened goggles, tape and other items indicating she had been abducted; and that the defendant was seen coming from his house with the bag and returning home without it after surreptitiously placing it in a neighbor’s garbage can in another street. Based on these circumstances alone the court issuing the warrant could reasonably conclude that there was a probability that additional evidence relating to the missing girl might be found in the defendant’s home.

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

Fuchsberg, J.

(concurring in result). The real issue on this appeal is whether collateral estoppel, sometimes referred to as “issue preclusion” (Matter of American Ins. Co. [Messinger — Aetna Cas. & Sur. Co.], 43 NY2d 184,189, n 2), was properly applied against the defendant when the trial court prevented him from contesting the legality of a police officer’s entry onto his premises upon the ground that the question had previously been determined adversely to this defendant in another prosecution. Because I believe that the trial court’s ruling was correct, I would affirm on that ground.

Although collateral estoppel has its genesis in civil litigation, where it serves the public interest in an orderly termination of controversy when the issues at stake have been fully tried and necessarily adjudicated between the parties, its applicability to criminal prosecutions has long been recognized (see, e.g., Ashe v Swenson, 397 US 436,443; United States v Oppenheimer, 242 US 85, 87 [Holmes, J.]). In particular, the availability of resort to the doctrine in the context of a suppression motion can no longer be seriously disputed (United States ex rel. Di Giangiemo v Regan, 528 F2d 1262 [Friendly, J.], cert den 426 US 950; United States v McKim, 509 F2d 769, 775-776 [Wisdom, J.]; People v Hopkins, 52 Ill 2d 1 [Schaeffer, J.]; People v Gray, 393 Mich 1 [Kavanagh, J.] ; People v Scott, 93 Misc 2d 1074 [Eggert, J.] ; see, generally, Res Judicata — Criminal Cases, Ann., 9 ALR 3d 203, 241).

True, in the greater number of reported cases, the principle has been invoked at the behest of a defendant rather than the People. For, as Judge Friendly took the pains to point out in the Di Giangiemo case, due process at times may bend over to favor the application of collateral estoppel on behalf of a defendant even in what otherwise might be regarded as uncertain circumstances. While the doctrine, therefore, is not to be applied against a defendant with the same rigor as against the State (cf. People v Berkowitz, 50 NY2d 333; People v Reisman, 29 NY2d 278, 285, cert den 405 US 1041), in appropriate circumstances most courts have found no difficulty in calling upon it when a defendant is to be estopped (Hernandez-Uribe v United States, 515 F2d 20, cert den 423 US 1057; United States v Colacurcio, 514 F2d 1 [Jameson, J.]; United States v Pena-Cabanillas, 394 F2d 785; United States v Rangel-Perez, 179 F Supp 619; see United States v Newman, 490 F2d 139; United States v Taylor, 437 F2d 371; cf. Allen v McCurry, 449 US 90).

Indeed, on suppression issues, collateral estoppel has come to be applied quite uniformly (United States v McNair, 439 F Supp 103, 106-109, affd 571 F2d 573, cert den 435 US 976; People v Hopkins, 52 Ill 2d 1, supra; People v Mann, 89 Mich App 511, 514; People v Scott, 93 Misc 2d 1074, supra). This is not surprising, since such motions generally present clean-cut questions of the admissibility of particular items of evidence. Surely, no matter how protective we must be of a defendant’s rights, “that the same item of evidence may be relevant in several trials * * * does not, without more, entitle him to repeated hearings as to [its] validity” (People v Hopkins, supra, at pp 3-4). Where there are different parties (People v Reisman, 29 NY2d 278, supra [prior ruling by out-of-State court]) or other valid reasons for denying an estoppel effect (see, e.g., Stone v Powell, 428 US 465; People v Payton, 51 NY2d 169), the result may be different. Here there is nothing to distinguish the suppression hearing from the run-of-the-mill.

Judicial suggestions that collateral estoppel not be applied against a defendant by and large have been in the form of dicta arising in the context of a determination of whether one charged with a crime has a constitutional right “to have the jury or the triers of the facts determine anew every element of guilt” (e.g., United States v Carlisi, 32 F Supp 479, 482). Whatever may be said for such statements or for others which bespeak concern with the ultimate fixing of guilt or innocence, especially by juries, who in “their projection of laymen’s sensitivities to facts” are sometimes thought to infuse an element of mercy dispensation in their verdicts (see People v Henderson, 41 NY2d 233, 236), the fact remains that Judges who preside at suppression hearings in the end do no more than pass upon the admissibility of evidence (see CPL 710.70, subd 3).

It, of course, is a requisite for preclusion that the issue decided be one finally resolved (cf. Matter of McGrath v Gold, 36 NY2d 406). Moreover, as in civil cases, “ [f] actors supporting a conclusion that a decision is final for this purpose are ‘that the parties were fully heard, that the court supported its decision with a reasoned opinion [and], that the decision was subject to appeal or was in fact reviewed on appeal’ ” (United States ex rel. Di Giangiemo v Regan, 528 F2d 1262, 1265, supra, quoting Restatement, Judgments 2d [Tent Draft No. 1], § 41, at p 7).

These tests were met in the present case. As the majority notes, the September 26 observations of Detective Waltman formed the predicate for both the Kings County and Nassau County warrants, the validity of each of which, in turn, depended upon whether the officer’s entry into the defendant’s room on that date was proper (see, e.g., People v Baldwin, 25 NY2d 66, 70). This issue was fully litigated at the earlier suppression hearing in the Kings County murder prosecution and there resolved against the defendant. The Appellate Division and a Judge of this court necessarily reviewed that determination on appeal from the judgment of conviction, at which point it became “procedurally final” (CPL 710.70, subd 2; 470.15).

Now, there is no good reason why the effect of this adjudication should be any less binding for purposes of collateral estoppel simply because the defendant chose not to testify at the hearing. The Supreme Court has recently reaffirmed the rule of Simmons v United States (390 US 377) “that testimony given * * * in support of a motion to suppress cannot be admitted as evidence of his guilt at trial” (United States v Salvucci, 448 US 83, 88). While that “Court has not decided whether Simmons precludes the use of a defendant’s testimony at a suppression hearing to impeach his testimony at trial” (id., at pp 93-94), the ultimate resolution of that issue is irrelevant since it is clear that no one has a vested interest in perjured testimony (see, e.g., United States v Havens, 446 US 620; United States v Kahan, 415 US 239; People v Wise, 46 NY2d 321).

Moreover, it is hard to believe that testimony on the issue of “consent” would have caused the defendant to reveal “the nature of his case at preliminary proceedings”, as the majority puts it (at p 66). While this can hold true of a confession, where the issue of voluntariness may be relitigated at trial, it does not follow that this reasoning would apply to physical evidence, the suppression of which will be binding on a defendant at trial (CPL 710.70, subd 3; see People v Matera, 45 Misc 2d 864; People v Estrada, 44 Misc 2d 452, revd 28 AD2d 681, affd 23 NY2d 719, cert den 394 US 953).

In any event, the trial strategy the defendant resorted to in maintaining his silence at the hearing, whether elevated to a point where it deserves to characterize “the nature of the case” or not, is subject to no constitutional protection (see Williams v Florida, 399 US 78; People v Copicotto, 50 NY2d 222; Matter of Lee v County Ct. of Erie County, 27 NY2d 432, cert den 404 US 823). Given the automatic life sentence that would follow a conviction for murder (Penal Law, §§ 125.25, 70.00, subds 2, 3) it would defy elementary human psychology to suggest that there is “no incentive” to testify at a pretrial suppression hearing (compare Ando v Woodberry, 8 NY2d 165, with Montalvo v Morales, 18 AD2d 20 [traffic infractions]; see Restatement, Judgments 2d [Tent Draft No. 4], § 68.1, subd [e], par [iii]).

Accordingly, I would affirm the order of the Appellate Division upon the ground that the invocation of collateral estoppel against the defendant did not deprive him of any constitutional or statutory rights.

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

Order affirmed.

      . Although the victim’s nude body was found that same day, September 26, in Kings County, it appears that the Nassau County police officer in charge of the case was not informed of this until September 28.

      , Although two indictments were returned in Nassau County for two separate burglaries, on this appeal we are only concerned with the Oceanside burglary. The record does not indicate the disposition of the other indictment.

      . In one respect, at least, the defendant’s testimony at the hearing could not be used against him. “ [W]hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection” (Simmons v United States, 390 US 377, 394; but, also, see United States v Kahan, 415 US 239).

      . Prior determinations made in criminal cases have been held by this court to have collateral estoppel effect in subsequent civil cases (see, e.g., S. T. Grand, Inc. v City of New York, 32 NY2d 300; Vavolizza v Krieger, 33 NY2d 351) and administrative proceedings (People ex rel. Dowdy v Smith, 48 NY2d 477, supra). But when it has been urged that such determinations should preclude the defendant or the People in a subsequent criminal action, we have found collateral estoppel inapplicable under the circumstances thus far presented (see, e.g., People v Lo Cicero, 14 NY2d 374, 380; People v Reisman, 29 NY2d 278, 285, supra; Matter of McGrath v Gold, 36 NY2d 406, supra; People v Berkowitz, 50 NY2d 333, supra; cf. Matter of Martinis v Supreme Ct. of State of N. Y., 15 NY2d 240), except, of course, in cases where relitigation of a fact previously resolved in the defendant’s favor would also be constitutionally precluded by the double jeopardy clause (see, e.g., People v Dreares, 11 NY2d 906; cf. People v Berkowitz, supra, at pp 343-344).


text:
    In the Matter of Imperial Diner, Inc., et al., Respondents, v State Human Rights Appeal Board, Respondent, and State Division of Human Rights on the Complaint of Eleanor F. Rose, Appellant.
    Argued November 14, 1980;
    decided December 22, 1980

      POINTS OF COUNSEL

      Alan J. Saks and Ann Thacher Anderson for appellant.
    I. The evidence is more than substantial that Gus Kayantas abused Ms. Rose with vile, antisemitic epithets and adamantly refused to withdraw his statements or apologize for them. II. Ms. Rose did not resign her job voluntarily. She was constructively discharged. (Young v Southwestern Sav. & Loan Assn., 509 F2d 140; Calcote v Texas Educational Foundation, 578 F2d 95; Hudson Tr. Lines v State Human Rights Appeal Bd., 65 AD2d 277, 47 NY2d 971; Matter of Brooklyn Coll. of City Univ. of N. Y. v State Div. of Human Rights, 39 AD2d 707.) III. The order of the State Division properly does not allow respondents a credit for the unemployment insurance benefits paid to Ms. Rose (Matter of Cohen [Levine], 44 AD2d 286; Matter of Mize v State Div. of Human Rights, 33 NY2d 53.) IV. The commissioner properly directed an apology to Ms. Rose. V. Respondents’ contention, that the $500 award for humiliation and mental anguish is excessive as a matter of law, is plainly erroneous. (Hudson Tr. Lines v State Human Rights Appeal Bd., 47 NY2d 971; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Palmer v New York State Human Rights Appeal Bd., 63 AD2d 1053, 47 NY2d 734.) VI. In addition to directing the court below to grant the cross petition for enforcement, this court should direct the court below to liquidate the back pay directive, so that the order of the court below may be capable of being enforced in the same manner as a judgment for a sum of money. (Butta v Anne Arundel County, 473 F Supp 83.)

      David I. Korngut for Imperial Diner, Inc., and another, respondents.
    I. There is no substantial evidence in the records to sustain a finding that petitioners used discrimintory language. (Matter of Mize v State Div. of Human Rights, 33 NY2d 53.) II. Even if complainant’s testimony is held sufficient, there is no violation of the Human Rights Law. (Matter of Sperry Rand Corp. v State Human Rights Appeal Bd., 46 AD2d 678; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201.) III. Complainant is not entitled to an award of back pay. (Matter of Mize v State Div. of Human Rights, 33 NY2d 53; State Div. of Human Rights v Board of Educ., 59 AD2d 1048; 121-129 Broadway Realty v New York State Div. of Human Rights, 48 AD2d 975.) IV. The award of $500 for shock, humiliation and outrage is excessive as a matter of law. (121-129 Broadway Realty v New York State Div. of Human Rights, 49 AD2d 422; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143.) V. A written apology is not authorized or appropriate under the circumstances. (New York Inst. of Technology v State Div. of Human Rights, 40 NY2d 316.)
   OPINION OF THE COURT

Wachtler, J.

The State Division of Human Rights has found the petitioners, Imperial Diner and its president, discriminated against an employee on the basis of her religion or creed and under the circumstances, compelled her to quit her job. The Appellate Division annulled the determination on the ground that it was not supported by substantial evidence of discrimination. The State Division appeals.

The complainant is a mother of three, who in the fall of 1976 was attending graduate school and working weekends as a waitress at the Imperial Diner. The diner is owned by three individuals one of whom operates it on a daily basis and also serves as its president. On Saturday, October 24, the complainant worked behind the counter, which is considered less desirable than a table station. When she was again assigned to the counter on Sunday, she complained and brought the matter to the attention of the president, who apparently did nothing. However, the head waitress decided to reassign her to a table station.

Later, while the complainant was delivering an order to the kitchen, she saw the president and, thinking he was responsible for the reassignment, thanked him. He responded with an obscene antisemitic remark to the effect that the complainant thought she was something special because she was Jewish, “Just like all the other f — ing Jewish broads around here.” When she expressed shock and disbelief her employer told her that she had heard correctly; that all the “f — ing Jewish women” at the diner “think they are something special and deserve more than the others.” When she requested an apology he ignored her. At that point she left the diner and went home.

A few hours later she told one of the other owners what had occurred. He said that she should return to work and not be upset because the president was probably just in a bad mood. She agreed to stay on if the president would apologize in front of those who had heard the remarks. Otherwise, she noted, she felt that she might be subject to similar abuse in the future.

Complainant saw the president again, several days later, when she returned to collect her pay. At first he accused her of telling lies about him, but when she protested, he asked her to return to work and forget the whole thing. However, when she requested an apology, he replied, “Never”.

After a hearing before the State Human Rights Division, the commissioner found that complainant “was compelled to leave her job because of the ethnic obscenities hurled at her by her employer.” The commissioner emphasized the fact that the employer had repeatedly refused to apologize for the remarks. He directed that the petitioners apologize in writing, offer to reinstate complainant with back pay, together with $500 in damages for the “shock, humiliation and outrage” she experienced. The determination was affirmed by the Human Rights Appeal Board, with one dissent concerning the award of back pay.

Petitioners then commenced this proceeding in the Appellate Division seeking to have the determination annulled (see Executive Law, § 298). The commissioner cross-moved for an enforcement order. The Appellate Division held that the determination was not supported by substantial evidence because “the record is devoid of evidence showing a systematic exclusion or restriction, or a generalized pattern of unlawful discrimination, or any evidence of persistent religious or other unlawful discrimination directed at the complainant.” Thus the petition was granted and the determination annulled.

By statute, it is an unlawful discriminatory practice for an employer to discriminate against an individual “in compensation or in terms, conditons or privileges of employment” or to discharge an individual on the basis, among others, of race or creed (Executive Law, § 296, subd 1, par [a]). In considering whether the commissioner’s determination, that an employer has engaged in an unlawful discriminatory practice, is supported by substantial evidence, we have noted that “three underlying principles should be borne in mind” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176,183). First, the statute, by its terms, should be “construed liberally for the accomplishment of the purposes thereof” (Executive Law, § 300). Secondly, the commissioner is primarily responsible for administering the law and to that end has been granted broad powers to eliminate discriminatory practices (Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143, 146-147). Thirdly, one intent on discriminating “cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive — for we deal with an area in which ‘subtleties of conduct * * * play no small part’ ” (Matter of Holland v Edwards, 307 NY 38, 45).

As far as subtlety is concerned the case now before us is startling because here the employer’s contempt for complainant, and his other female employees of her religion or creed was proclaimed crudely and openly, not only to her but to all within her hearing. This type of vilification is humiliating, not only when it is done wholesale, but also, and perhaps especially, when it is directed at a lone individual in an isolated incident. The statute prohibits discrimination, and not just repeated discriminatory acts (see, e.g., Hudson Tr. Lines v State Human Rights Appeal Bd., 47 NY2d 971; Matter of Pace Coll. v Commission on Human Rights of City of N.Y., 38 NY2d 28). Thus, on the basis of the complainant’s testimony alone, that her employer reviled her religion or creed in a matter related to her working conditions, the commissioner could find that petitioners engaged in an unlawful discriminatory employment practice which should be redressed. He did not have to also find that this was a regular practice, nor did he have to wait and see if it would become one.

The commissioner could also find that, under the circumstances of this case, complainant was compelled to quit her job as a result of the employer’s discriminatory conduct. As in other areas of discrimination it is unrealistic to hold that an employee can only be said to have been the victim of a discriminatory discharge when the employer has expressly fired him on the basis of race or creed or some other discriminatory ground. It is also possible, and perhaps more likely, that an employer who believes certain individuals are undesirable employees because of some discriminatory factor, will engage in conduct which encourages the employee to quit, in which case it may be said that there has been a constructive discriminatory discharge.

Thus, in this case, although the employer did not in so many words fire complainant, and in fact told her she could return to work, the commissioner could attach greater significance to the fact that the employer had never apologized for his remarks and, indeed, adamantly refused to do so even several days after the incident had occurred. He never withdrew the reprimand or stated any change in his attitude that her efforts to improve her working conditions were viewed, by him, as an undesirable trait associated with her religion. He simply let the remarks stand and offered her continued employment, on a take-it-or-leave-it basis, presumably in the same intolerable atmosphere. Thus there was support for the commissioner’s finding that when the employer expressed his prejudice against the complainant and repeatedly refused to retract the statement, she was compelled to quit her job to avoid the abuse she had experienced and could well encounter- in the future. That is not to say that this was the only conclusion that the commissioner could have drawn from the facts. However, it was a reasonable one and thus may not be set aside by the courts although a contrary decision may “have been reasonable and also sustainable” (Matter of Mize v State Div. of Human Rights, 38 NY2d 53, 56).

Finally, with respect to the remedy we note that the commissioner has broad powers to adopt measures which he reasonably deems necessary to redress the injury including, but not limited to, directing reinstatement with back pay, and awarding compensatory damages (Executive Law, § 297, subd 4, par c; see, also, Holland v Edwards, 307 NY 38, 45-46, supra; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143, supra). In this case it cannot be said that the remedy fashioned by the commissioner is not reasonably related to the discriminatory conduct which he found to exist (see Holland v Edwards, 307 NY 38, 46, supra).

Accordingly, the order of the Appellate Division should be reversed, the petition dismissed and the cross motion for enforcement of the commissioner’s order should be granted.

Meyer, J.

(dissenting in part). While I concur in the conclusions that a single abusive ethnic remark if sufficiently humiliating can constitute discrimination in “conditions * * * of employment” within the meaning of section 296 (subd 1, par [a]) of the Executive Law, and that the record supports the finding that this was such a case, I would not sustain so much of the commissioner’s order as required a written apology or as directed the payment of back pay for a period of more than two years.

As to the written apology, in my view the First Amendment protects both the right to speak and the right to remain silent. Just as the First Amendment permits recovery of money damages for libelous speech, it permits the State to protect an employee against the offensive and humiliating speech of his employer. It may not, however, require the employer to apologize any more than it could require that school children recite the pledge of allegiance (Board of Educ. v Barnette, 319 US 624; Ann., 85 ALR3d 402), unless it can be shown that such an enforcement device is essential to the constitutionally permissible purpose of the law. No such showing has been made here.

As to the direction for back pay, I would hold that it constitutes an abuse of discretion insofar as it requires payment during a period when complainant had other employment. Though her employment with petitioner was for weekends only there is no basis for concluding that she would have continued weekend work after she obtained employment during regular workweek hours, and the fact that she has three children suggests the contrary. Moreover, the suggestion in the division’s brief that she could not obtain other weekend employment as a waitress because the altercation with the president of the Imperial Diner was “a topic of public notoriety” is based on speculation. Complainant admitted that she had publicized the incident herself, and testified only that one restaurant to which she applied appeared to know of the incident and that she assumed that other local restaurants knew about it as well.

The matter should be remanded for the making of an order within the evidence and within the division’s authority.

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

Order reversed, with costs, petition dismissed and cross motion for enforcement granted.

       The dissenter’s contention that the apology ordered by the commissioner might violate the First Amendment has not been raised by the petitioners and thus is not before us. The petitioners’ only argument is that an apology is not authorized or appropriate under the circumstances. However in view of the commissioner’s broad powers to fashion relief as well as the significance the employer’s refusal to apologize had in this case, it cannot be said that ordering an apology was not essential to eliminate the particular discriminatory practice the commissioner had found.


author: Chief Judge Cooke.

text:
    William G. Smith, as Father and Natural Guardian of Christian M. Smith, an Infant, et al., Plaintiffs, v Joseph F. Sapienza et al., Defendants and Third-Party Plaintiffs-Appellants. Heather Smith, an Infant, by William G. Smith, et al., Third-Party Defendants-Respondents.
    Argued December 16, 1980;
    decided January 15, 1981

      POINTS OF COUNSEL

      Charles S. Hefter and Martin Rosen for appellants.
    I. On a motion to dismiss a complaint for legal insufficiency, the court accepts, as true, the material allegations of fact as alleged in the complaint. (Torrey Delivery v Chautauqua Truck Sales & Serv., 47 AD2d 279; Cohn v Lionel Corp., 21 NY2d 559.) II. The third-party defendant sister, Heather Smith, being 10 years of age, is sui juris, and can be held to account for her acts of negligence. (Camardo v New York State Rys., 247 NY 116; Koo v St. Bernard, 89 Misc 2d 775.) III. The immunity from suit for negligent supervision of an injured child is limited solely to that child’s parents, and does not extend to other members of the injured child’s family who have temporary custody of the child. (Gelbman v Gelbman, 23 NY2d 434; Holodook v Spencer, 36 NY2d 35; Barrera v General Elec. Co., 84 Misc 2d 90; Nolechek v Gesuale, 46 NY2d 332; Hoose v Drumm, 281 NY 54; Luis v Church of St. Angela Merici, 52 AD2d 352.)

      Ignatius John Melito, Allan P. White, P. C., and Steven Di Joseph for respondents.
    I. The policy considerations underlying this court’s holding in Holodook v Spencer (36 NY2d 35), that a tort-feasor may not sue the parents of an injured infant for their alleged negligent supervision of the infant apply equally to such claims against an injured infant’s minor unemancipated siblings. (Holodook v Spencer, 43 AD2d 129, 36 NY2d 129; Kelly v Long Is. Light. Co., 31 NY2d 25; Lastowski v Norge Coin-O-Matic, 44 AD2d 127; Gelbman v Gelbman, 23 NY2d 434; Broome v Horton, 83 Misc 2d 1002, 53 AD2d 1030; Berrera v General Elec.

      Co., 84 Misc 2d 90.) II. As a matter of law, a 10-year-old child may not be held liable in tort for the negligent supervision of another child. (Eagle v Janoff, 12 AD2d 638; Carrillo v Kreckel, 43 AD2d 499.)
   OPINION OF THE COURT

Chief Judge Cooke.

The question here, with far-reaching implications in this litigious and societally conscious era, is whether a four-year-old boy may recover against his 10-year-old sister for her negligent supervision of him. It is concluded, for a variety of reasons, that there exists no such cause of action —one for negligent supervision — between unemancipated minor siblings.

On May 4,1977,10-year-old Heather Smith, accompanied by her four-year-old brother Christian, went to deliver Girl Scout cookies to their neighbors, defendants Sapienza. While on defendants’ property, Christian was allegedly attacked by defendants’ collie. William Smith, the father of Christian and Heather, commenced this action to recover damages on behalf of Christian, as well as his own medical expenses. Defendants in turn brought a third-party action for contribution against William and Heather, alleging negligent failure to supervise Christian.

Special Term granted summary judgment dismissing the third-party complaint. A unanimous Appellate Division affirmed. This court granted leave to appeal from so much of the Appellate Division order as affirmed dismissal of the complaint against Heather (50 NY2d 913). The issue, then, is whether Holodook v Spencer (36 NY2d 35), which declined to recognize a cause of action by a child against a parent for negligent supervision, also precludes recognition of such a cause of action between siblings.

Analysis of the question must begin with the decision in Gelbman v Gelbman (23 NY2d 434), in which this court abolished intrafamilial immunity for nonwillful torts. Prior to Gelbman, of course, certain family members enjoyed immunity from liability for tortious injuries inflicted upon other family members (e.g., Badigian v Badigian, 9 NY2d 472; Sorrentino v Sorrentino, 248 NY 626). The effect of Gelbman has been to render family members liable “for acts which if done by one ordinary person to another would be torts” (McCurdy, Torts Between Persons in Domestic Relation, 43 Harv L Rev 1030; see Holodook v Spencer, 36 NY2d 35, 43-44, supra; Badigian v Badigian, supra, at p 481 [Fuld, J., dissenting]). In addition to normal tort liability, the abrogation of immunity also opened “for exploration the area of duties which exist because of the family relationship, and which, if breached, entail legal consequences” (Holodook v Spencer, supra, at p 44 [emphasis in original]).

Thus, if an action for negligent supervision between siblings had previously existed, it would not now be barred by the immunity doctrine. It is not surprising, however, that the parties have not cited and research has not disclosed any New York case holding one sibling liable to another for negligent supervision. Whatever might have been the rule as to ordinary torts between siblings, there simply is no historical precedent or sound predicate for such a negligent supervision action.

Nor should this court fashion a new theory to impose liability upon a sibling. In the Holodook case, we found compelling policy reasons, essentially the same as those underlying the immunity doctrine, for not creating a supervision action against a parent (id., at pp 45-46). Many of those same policy considerations militate against recognition of a cause of action for negligent supervision between unemancipated minor siblings.

Recognition of such an action would give rise to Dole claims for contribution against the allegedly errant sibling when the injured child brings an action against the third-party tort-feasor. And, the possibility of Dole claims may dilute or effectively preclude a suit for compensation by the injured child. This is so because the parents, when informed of the potential liability of another child, might well decide to forego legal action. But even if they do not, the damages awarded the injured child are likely to be reduced by the percentage of fault attributable to his or her sibling. Since there is generally in effect but one family treasury, any contribution obtained from the sibling will as a practical matter be deducted from the plaintiff’s recovery.

More fundamental is the possibility of intrafamily conflict engendered by such actions. Where one child is injured and the other child is potentially liable, the parents are placed in the rather awkward position of advancing, resisting or balancing conflicting interests. They would be responsible for prosecuting any legal action on behalf of the injured child while at the same time providing assistance to the child who is being sued in the third-party action. In short, where children of the same family unit are forced into essentially adversarial positions in litigation, the potential for disruption and perhaps even irreconcilable conflict is manifest.

It is also not insignificant that, while the law places upon the parent an obligation to supervise his or her child, the breach of which is not actionable by the child (Holodook v Spencer, 36 NY2d, at p 45), there is usually no such corresponding obligation imposed upon minor siblings. A rather incongruous result would obtain, therefore, were a negligent supervision action against a child to be recognized. Indeed, when a child is temporarily entrusted with the well-being of his or her sibling, it is often because the parent, after assessing the judgment, maturity and capabilities of each child, has explicitly or implicitly delegated that task. To allow an action to be maintained against the supervising child would thus be to allow an indirect suit against' the parent for delegating temporary supervision.

For these reasons, it would be inadvisable to create a new action for negligent supervision between unemancipated minor siblings. Contrary to appellant’s argument, the decision in Nolechek v Gesuale (46 NY2d 332) does not dictate otherwise. That case merely applied, in rather unique circumstances (see id., at pp 341-342), the established rule that an injured third party possesses a cause of action against a parent who has negligently entrusted a dangerous instrument to his child (id., at pp 340-342). Since Holodook itself articulated this same rule (36 NY2d, at p 45, supra), it is apparent that Nolechek does not detract from the holding or rationale of Holodook.

Inasmuch as a child has no cause of action against a sibling who is guilty of negligent supervision, it follows that a third party possesses no Dole claim for contribution against the allegedly negligent sibling. A claim for contribution exists only when two or more tort-feasors share in responsibility for an injury, in violation of duties they respectively owed to the injured person (e.g., Holodook v Spencer, 36 NY2d 35, 51 supra; Barry v Niagara Frontier Tr. System, 35 NY2d 629, 633; Rogers v Dorchester Assoc., 32 NY2d 553, 564).

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer concur.

Order affirmed.

      . (Dole v Dow Chem. Co., 30 NY2d 143.)

      . Such an entrustment might be part of the training of a child in an effort to inculcate responsibility or affection. It might be accomplished in an effort to economize, particularly where both parents are gainfully employed. These are some of the “stuff” that bind families together and enable their members to reap some of the richer rewards of life.