author: Alexander, J. Kaye, J. Simons, J.

text:
    Kathleen Campagnola et al., Respondents, v Mulholland, Minion & Roe et al., Appellants. (And a Third-Party Action.)
    Argued March 22,1990;
    decided May 8, 1990

      POINTS OF COUNSEL

      Peter L. Contini for appellants.

      Harry Organek for respondents.
   OPINION OF THE COURT

Alexander, J.

In this action for legal malpractice, defendant attorneys seek to offset against any damages recoverable by the plaintiff clients, the contingent fee provided for in the retainer agreement executed between them in respect to the underlying personal injury claim. We hold that in the circumstances of this case, such an offset is impermissible.

I

This case having reached us on appeal in the pleading stage, we accept the essential facts as alleged in the complaint. In September 1984, plaintiff Kathleen Campagnola was struck by a car while working as a school crossing guard for the Nassau County Police Department. She alleges that as a result of the accident she has been rendered permanently disabled and is unable to work.

Shortly after the accident, she retained defendant law firm to pursue a claim for personal injuries against the driver of the car and its owner. She entered into a contingency retainer agreement with the law firm giving the attorneys the exclusive right to take legal steps to enforce her claim for personal injuries and agreeing that the firm was to receive a contingency fee of one third of any money recovered on the claim whether by "suit, settlement or otherwise.” The fee was to be calculated on the net recovery, after deduction of the firm’s expenses and disbursements. The individual defendant, George Repetti, handled plaintiff’s case on behalf of the firm.

The owner of the car that struck plaintiff was insured under a policy issued by Metropolitan Property & Liability Insurance Company (Metropolitan) which provided liability insurance coverage of $10,000 for bodily injury per person injured in a single accident as a result of its insured’s negligence.

Plaintiff was herself insured under a policy issued by Government Employee’s Insurance Company (GEICO) which provided uninsured motorist coverage for "each person/each accident” of "$100,000/$300,000”. The policy also provided $100,000/$300,000 supplementary uninsured motorist coverage (underinsured coverage). The GEICO policy required, as a condition precedent to eligibility for underinsured benefits, that written notice of the accident be provided, that the insured cooperate with GEICO in regard to any claim arising out of the accident and that GEICO’s consent be obtained prior to the release or settlement of any claim against any tort-feasor deemed responsible for the insured’s injuries.

Defendants allegedly negligently misinterpreted the coverage of the GEICO policy, failing to recognize that it provided underinsurance as well as uninsured coverage. They proceeded to negotiate a settlement of the claim against the Metropolitan policy, and counseled plaintiff to accept the policy limit of $10,000. They failed to notify GEICO of the proposed settlement or to secure GEICO’s consent. The settlement was accomplished and plaintiff executed a general release in exchange for the $10,000 payment from which defendants deducted their expenses of $550 and their fee of $3,150. Plaintiff received the net $6,300.

Some time thereafter, through new counsel^ plaintiff filed a claim under her GEICO policy, only to have the claim rejected because the settlement with Metropolitan without GEICO’s consent destroyed GEICO’s right of subrogation. This lawsuit in which plaintiff seeks $100,000 in damages for malpractice and breach of contract ensued. Defendants interposed a general denial and several affirmative defenses, including a fourth affirmative defense to reduce any recovered damages by the amount defendants would have received as attorneys’ fees and expenses in the underlying personal injury action.

Supreme Court granted plaintiff’s motion to strike this fourth affirmative defense, concluding under the authority of Andrews v Cain (62 AD2d 612) that deducting a "hypothetical” contingency fee such as would be payable to the attorney pursuant to the retainer agreement in the underlying action would prevent plaintiff from being fully compensated and that such a "hypothetical” fee therefore is canceled out by the attorney’s fee the plaintiff incurred in retaining counsel in the action for legal malpractice.

The Appellate Division affirmed, but on a different basis. That court adopted the rationale of Strauss v Fost (213 NJ Super 239, 242-243, 517 A2d 143), holding that, as a general rule, the negligent attorney should be precluded from receiving credit for a fee and therefore that the full amount sought in the original lawsuit should be recoverable by the plaintiff. The Appellate Division granted defendants leave to appeal, certifying the question of whether its order was properly made. We now affirm and answer the certified question in the affirmative.

II

We note at the outset that on this motion to strike the fourth affirmative defense, the parties, as did the courts below, have proceeded under the assumption that the full $100,000 underinsured motorist benefit under the GEICO policy would have been recovered had there been compliance with the policy provisions. Consequently, we may conclude for purposes of this appeal that the plaintiffs underlying personal injury action has merit, that "but for” the defendant’s malpractice, plaintiffs claim to the underinsured motorist benefits under GEICO policy would not have been rejected and the $100,000 maximum benefit would have been paid. (See, Carmel v Lunney, 70 NY2d 169, 173; Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730, 732; see also, Servidone Constr. Corp. v Security Ins. Co., 64 NY2d 419, 425.)

While plaintiffs causes of action sound in both negligence and contract, the measure of damages in a legal malpractice action is generally the same (Vooth v McEachen, 181 NY 28, 31; Baker v Drake, 53 NY 211, 220). The object of compensatory damages is to make the injured client whole. Where the injury suffered is the loss of a cause of action, the measure of damages is generally the value of the claim lost (see, Reynolds v Picciano, 29 AD2d 1012; see generally, 1 Mallen and Smith, Legal Malpractice § 16.4 [3d ed]).

Defendants dispute the value of plaintiffs lost GEICO claim, arguing that under ordinary contract principles the $100,000 recovery from GEICO should be reduced by one third, the amount of their original retainer agreement, because that is the sum plaintiff would have recovered if defendants had performed the contract (see, Lieberman v Templar Motor Co., 236 NY 139, 149; Spitz v Lesser, 302 NY 490, 492). They contend, therefore, and the dissent apparently agrees, that to permit her to recover the full $100,000 in a legal malpractice action, without deducting the amount of the contingent fee agreed upon, unjustly gives the plaintiff a windfall, and concomitantly, unfairly requires the defendants to pay the full $100,000 and suffer the loss of that fee.

We recognize that there is authority for the proposition that damages awardable in a legal malpractice action should be reduced by the fee agreed to be paid to the negligent attorney (see, Childs v Comstock, 69 App Div 160; Moores v Greenberg, 834 F2d 1105; McGlone v Lacey, 288 F Supp 662; Sitton v Clements, 257 F Supp 63, 65, affd 385 F2d 869; In re Woods, 158 Tenn 383, 13 SW2d 800). Other courts have reached the opposite conclusion, however. Some, as did the Appellate Division in this case, hold that such a reduction in the plaintiffs recovery is impermissible because a negligent attorney is precluded from collecting a fee (e.g., Strauss v Fost, 213 NJ Super 239, 517 A2d 143, supra); others reason that since a plaintiff must pay an attorney in the subsequent malpractice action, disregarding the original lawyer’s fee when calculating damages "cancels out” the extra cost (e.g., Andrews v Cain, 62 AD2d 612, supra; Kane, Kane & Kritzer v Altagen, 107 Cal App 3d 36, 165 Cal Rptr 534; Togstad v Vesely, Otto, Miller & Keefe, 291 NW2d 686 [Minn]; Christy v Saliterman, 288 Minn 144, 179 NW2d 288; Winter v Brown, 365 A2d 381 [DC App]; Duncan v Lord, 409 F Supp 687); and at least two courts have held that an injured client may recover the additional attorney’s fees incurred in the malpractice action as consequential damages (e.g., Foster v Duggin, 695 SW2d 526 [Tenn]; Winter v Brown, 365 A2d 381 [DC App], supra).

We conclude that a reduction of the client’s recovery should not be allowed in this case and for reasons of public policy, we decline to apply the traditional rules of contract damages to permit a negligent attorney to obtain credit for an unearned fee.

As we not too long ago observed, "[t]he unique relationship between an attorney and client, founded in principle upon the elements of trust and confidence on the part of the client and of undivided loyalty and devotion on the part of the attorney, remains one of the most sensitive and confidential relationships in our society.” (Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553, 556.) Because of the role attorneys play in the vindication of individual rights in our society, they are held to the highest standard of ethical behavior (Code of Professional Responsibility, Preamble; EC 6-5). Yet without this relationship of trust and confidence an attorney is unable to fulfill this obligation to effectively represent clients by acting with competence and exercising proper care in the representation (Demov, Morris, Levin & Shein v Glantz, 53 NY2d, at 556, supra).

Because of the uniqueness of the attorney-client relationship, traditional contract principles are not always applied to govern disputes between attorneys and clients. Thus it is well established that notwithstanding the terms of the agreement between them, a client has an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney (Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 177; Teichner v W & J Holsteins, 64 NY2d 977, 979; Demov, Morris, Levin & Shein v Glantz, supra; Crowley v Wolf, 281 NY 59, 64-65; Martin v Camp, 219 NY 170, 176). Where that discharge is without cause, the attorney is limited to recovering in quantum meruit the reasonable value of the services rendered (Teichner v W & J Holsteins, supra; Demov, Morris, Levin & Shein v Glantz, 53 NY2d, at 557, supra). Where the discharge is for cause, the attorney has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement (Teichner v W & J Holsteins, 64 NY2d, at 979, supra; Crowley v Wolf, 281 NY, at 65, supra). "Th[is] rule * * * is well calculated to promote public confidence in the members of an honorable profession whose relation to their clients is personal and confidential” (Martin v Camp, 219 NY, at 176, supra).

We view the public policy considerations that underpin this rule as both relevant and sufficiently compelling to warrant denying unearned attorney’s fees, or credit for the monetary equivalent, to an attorney who is guilty of legal malpractice that results in the client’s loss of recovery upon a valid claim. The attorney’s malpractice constitutes a failure to honor faithfully the fidelity owed to the client and to discharge competently the responsibilities flowing from the engagement. It is especially appropriate to deny credit for a fee where, as here, the defendant attorneys performed absolutely no services in connection with the disputed claim, and thus, even if discharged by plaintiff without cause, would not have been entitled to any quantum meruit compensation (cf., Moores v Greenberg, 834 F2d 1105, 1112-1113, supra). Of course, if plaintiff had learned of defendants’ malpractice and discharged them for cause, they could not claim credit for their fee. We see no reason to allow the defendants to benefit by the fact that plaintiff belatedly learned of their misconduct and sued for recovery in legal malpractice. We conclude, therefore, that in these circumstances, the negligent attorney is precluded from claiming credit for an unearned fee. Thus, plaintiff’s recoverable damages are the value of her GEICO claim, without any deduction for the fee she would have paid defendants had they performed the contract.

We reject defendants’ contention that this rule of damages permits plaintiff a windfall by allowing her to recover her attorney’s fees in the legal malpractice action in contravention of the long-standing American rule that litigants pay their own attorney’s fees (see, Alyeska Pipeline Co. v Wilderness Socy., 421 US 240, 248). Contrary to the assertion of the dissent (dissenting opn, at 48), our decision is not premised on compensating plaintiffs for attorneys’ fees incurred in actions for legal malpractice. We neither authorize the recovery of legal fees in this case as consequential damages, nor "shift[ ]” the amount of defendants’ contingency fee to plaintiff as part of the value of her claim. We hold only that plaintiff’s recovery is not to be diminished by the amount of defendants’ unearned fee. Thus, under our analysis, the fact that, as a practical matter, plaintiff may expend some portion of her recovery on legal fees is of no moment; the legal fees are not an aspect of her damages and her recovery is the same whether she hires a lawyer to pursue her malpractice claim or proceeds pro se.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Kaye, J.

(concurring). I concur in the majority opinion, but

write separately to underscore the factors that compel me to that conclusion.

Four essential facts, to my mind, define and delimit the applicable legal principles in this case. First, this is a contingent fee case. Second, defendants rendered no legal services— indeed, they did absolutely nothing — with respect to plaintiff’s claim against GEICO.* Third, plaintiff retained a second lawyer who thus far has had to prosecute plaintiff’s claim through the trial court, the Appellate Division and now this court. Finally, this is a pleadings motion; the merits are yet to be adjudicated, and plaintiff’s damages are yet to be determined.

In such circumstances, the motion to strike the fourth affirmative defense, which would immediately reduce plaintiff’s maximum potential recovery, was correctly granted. In lawyer malpractice cases, as in all negligence cases, the focus in damages inquiries must be on the injured plaintiff — not on whether damages will unduly harm the wrongdoer defendant —the objective being to put the injured plaintiff in as good a position as she would have been in had there been no breach of duty. Had defendants discharged their professional responsibility, and furnished the contracted-for legal services, plaintiff would have pocketed roughly $67,000 (the balance representing compensation for defendants’ services).

In fact, defendants did not render those services, and plaintiff did not receive the $67,000. Plaintiff has had to retain a second attorney to pursue that same objective. There is therefore no basis for an affirmative defense that would at the outset reduce plaintiff’s maximum recovery to $67,000 — to be further reduced by the reality of a second counsel fee. If the affirmative defense were allowed, plaintiff could never be made whole; plaintiff could never be put in as good a position as she would have been in had defendants fulfilled their commitment to her. Should this plaintiff have the misfortune to suffer successive lawyer malpractice, on defendants’ theory she could in principle win her rightful recovery and in fact receive nothing by virtue of deductions for unearned counsel fees.

The dissent’s speculation that attorneys who commit malpractice might settle those claims, in order to retain goodwill, or avoid adverse publicity, or out of a sense of moral obligation, may be ideals of professional behavior, but that speculation is not borne out by the facts of this case — which is all we have before us. Plaintiff already has been before three courts and is still at the pleadings stage. In these circumstances, it is right as a matter of policy to permit plaintiff to seek the full maximum recovery against the allegedly negligent lawyers; that is the only way plaintiff can be made whole.

Should the application of this rule yield an absurd result in a future case presenting different facts (as the dissent suggests it might, when lawyers promptly settle such cases), lawyer defendants can be trusted to bring such additional facts to courts’ attention, and the law can be trusted to respond sensibly in calculating and awarding damages. For the present class of cases, this is the correct and reasonable result, which is all we are deciding.

Simons, J.

(dissenting). I would reverse and deny the motion to dismiss defendants’ affirmative defense. In my view, the rule adopted by the majority unjustly enriches plaintiffs and unfairly punishes defendants. It permits the clients to recover more from their attorneys in a malpractice action than they could recover if the attorneys had achieved complete success in the underlying action for which they were retained.

Under standard doctrine a successful plaintiff in a malpractice claim may recover from the negligent attorney " 'the loss actually sustained’ ” (Vooth v McEachen, 181 NY 28, 32; Titsworth v Mondo, 95 Misc 2d 233, 244; see generally, Annotation, Measure and Elements of Damages Recoverable for Attorney’s Negligence with Respect to Maintenance or Prosecution of Litigation or Appeal, 45 ALR2d 62). Under any view of the evidence in this case, "the loss actually sustained” by plaintiffs could not exceed $67,000 — the maximum recovery available, less the agreed upon one-third attorney’s fee ($100,000 minus $33,000). Accordingly, the recovery of $67,000 in damages in the malpractice action will make them whole; they should not be permitted to recover more.

Notwithstanding this, the majority holds plaintiffs are entitled to the gross amount of the underlying claim. It bases its decision on public policy, reasoning that clients have the right to discharge the attorney at any time for cause without paying a fee (see, Teichner v W & J Holsteins, 64 NY2d 977, 979) and that they are entitled, therefore, to have the attorney remit the whole amount of the claim as damages, including the agreed-upon fee. They would not only deny the discharged attorney his compensation, as our cases permit, but also augment the client’s recovery by the amount of it though not otherwise a part of plaintiffs’ recovery. They justify this because the attorney has performed no services and, therefore, should not have the benefit of his fee.

The short answer is that there is no $33,000 to be remitted. Defendants have received nothing for handling plaintiffs’ claim and they are not enriched if plaintiffs’ recovery from them is limited to the net recovery possible, $67,000. Defendants are exposed in liability for the full amount available to plaintiff for successful completion of the services but they should not be punished by adding to that sum the amount of an attorney’s fee that plaintiffs are not now and never have been entitled to receive. To do so adds an amount of punitive damages to the claim for simple negligence, contrary to our decisions providing that punitive damages are allowable only when the high threshold of moral culpability is satisfied, cases involving gross or wanton negligence or willful, malicious conduct (see, Giblin v Murphy, 73 NY2d 769, 772; Walker v Sheldon, 10 NY2d 401).

Finally, the majority decision implicitly rests upon the premise that, as a practical matter, if plaintiffs are required to retain attorneys in the malpractice litigation any recovery will be reduced by fees for those attorneys. That is not necessarily true. Plaintiffs do proceed pro se and attorneys do settle malpractice claims to retain goodwill, avoid adverse publicity or out of a sense of moral obligation. The amount that may be claimed in settlement should not exceed the amount available to plaintiffs after successful litigation. The concurring opinion would have a flexible rule to account for such situations but the rule stated is no rule at all because it permits the client to demand damages in excess of the actual loss at the risk of the time and cost of litigation to both parties.

But even if the claims are not settled, under the American rule, accepted in this State, prevailing litigants must pay their own attorney’s fees and disbursements. They cannot recover them from their adversary as consequential damages unless an award is authorized by agreement between the parties, by statute or by court rule (Alyeska Pipeline Co. v Wilderness Socy., 421 US 240, 248; Hooper Assocs. v AGS Computers, 74 NY2d 487, 491; Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5). There is little justification for overriding this established rule by shifting the amount of a contingent attorney’s fee to plaintiffs as if they were in fact part of the value of plaintiffs’ claim. That is precisely what the majority opinion implicitly does and the concurring opinion explicitly advocates. We would not authorize such damages in malpractice suits against other professionals and I am unable to see why they should be allowed in an action against attorneys.

Accordingly, I dissent.

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

Order affirmed, etc.

      . Joseph Campagnola has also asserted a derivative action. For purposes of this decision, however, references to the plaintiff shall refer only to Kathleen Campagnola.

      . It is not disputed that defendants were fully compensated for the services they did render on plaintiffs Metropolitan claim.

      . The dissent’s argument premised on the assumption that plaintiffs "damages” are $67,000 because the contingency retainer agreement to pay a one-third contingency fee was a necessary cost of her recovering from GEICO is misplaced. As previously noted, plaintiffs "damages” are the value of the lost claim: $100,000. That her "recovery” would have been only $67,000 had defendants performed their agreed-upon services is irrelevant to our analysis, since defendants in fact rendered no service; thus they would not be entitled to even "quantum meruit” compensation.

      . Given the posture of the case, the facts are presumed to favor plaintiff, the nonmovant.

      . This opinion advocates neither a change in the law regarding attorneys’ fees nor unreasonable damage demands by clients of their attorneys (dissenting opn, at 48). As with malpractice by any other professional, the objective of the law is to compensate clients for their losses; clients should not recover more because the professional is an attorney, nor should they recover less. In a situation where neither choice is absolutely perfect, the majority’s policy determination better approximates the law’s objective.


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    Gerard Flick, Respondent, v Stewart-Warner Corporation, Appellant.
    Argued March 28, 1990;
    decided May 8, 1990

      POINTS OF COUNSEL

      Michael J. Hutter for appellant.

      Mark J. McCarthy and Jo Anne W. Di Stefano for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant is a foreign corporation not authorized to do business in the State of New York. Plaintiff, mistakenly believing that defendant was authorized to do business in the State, commenced this action pursuant to Business Corporation Law § 306 instead of Business Corporation Law § 307 which governs service on unauthorized foreign corporations. Concededly, plaintiff effected personal service on the Secretary of State at her office in Albany and thereafter defendant received a copy of the process at its office in Chicago. The question is whether under these circumstances the court acquired personal jurisdiction over defendant although plaintiff did not send a copy of the process to defendant by registered mail as required by section 307 (b) (2) or file the affidavit of compliance required by section 307 (c) (2). The Appellate Division concurred with Supreme Court that jurisdiction had been acquired and affirmed its denial of defendant’s motion to dismiss (CPLR 3211 [a] [8]). For reasons which follow, we disagree. Accordingly, there should be a reversal.

I

Plaintiff sustained injuries when a hose, allegedly manufactured by defendant, malfunctioned. Defendant is a Virginia corporation having a principal office in Chicago, Illinois. It had not designated the Secretary of State as its agent for service of process since July 21, 1952 when it surrendered its certificate of authority to do business in the State of New York. Apparently assuming that defendant’s designation of the Secretary of State was still in effect, plaintiff served two copies of the summons with notice on the Secretary at her office in Albany pursuant to Business Corporation Law § 306. The Secretary of State’s office, after signing a receipt for the process, found from its records that defendant’s certificate of authority had been canceled in 1952. It nevertheless sent a copy of the process by certified mail, return receipt, to defendant at its designated address in Chicago in accordance with section 306 and thereafter got back the signed card signifying receipt of the process by defendant.

When defendant’s time to answer expired, plaintiff moved for a default judgment. Defendant opposed the motion for default and filed a cross motion seeking a dismissal of the action upon the ground that the service was ineffective. It argued that the court had not acquired jurisdiction over it because plaintiff had not met the requirements of Business Corporation Law § 307 for service on an unauthorized foreign corporation in that: (1) a copy of the process was not sent "by or on behalf of the plaintiff to such foreign corporation by registered mail with return, receipt requested” as prescribed by section 307 (b) (2) (instead a copy was sent by the Secretary of State by certified mail); and (2) plaintiff did not file with the clerk of the court proof of such service by registered mail in an affidavit of compliance as required by section 307 (c) (2).

Although Supreme Court denied defendant’s dismissal motion, it also denied plaintiff’s motion for a default and ordered plaintiff to accept defendant’s notice of appearance and to serve a complaint within 30 days. On defendant’s appeal, the Appellate Division unanimously affirmed. That court rejected the argument that the failure to comply with section 307 was jurisdictional.

The Appellate Division noted that there was no dispute that the Secretary of State had been duly served in Albany and reasoned that since "the Secretary of State is the statutory agent for unauthorized foreign corporations (Business Corporation Law § 307 [a]), this personal delivery of the summons constituted literal compliance with the jurisdictional requirements of CPLR 311 (1), which allows for personal service on a corporation by delivering the summons to an agent authorized by law to receive service” (Flick v Stewart-Warner Corp., 151 AD2d 823, 824). It concluded that plaintiff’s failures of compliance with the registered mail and proof of service requirements of the statute (§ 307 [b] [2]; [c] [2]) were " 'mere irregularities that * * * do not deprive the court of jurisdiction’ ” (id., at 825). The Appellate Division granted defendant leave to appeal and certified the following question: "Did this court err as a matter of law in affirming so much of the Supreme Court’s order as denied defendant’s motion to dismiss the summons with notice?” We now reverse and answer the certified question in the affirmative.

II

The question is whether the procedures established in Business Corporation Law § 307 are requirements of a jurisdictional nature which must be strictly satisfied. Plaintiff’s argument, adopted by the Appellate Division, is that the only jurisdictional requirement is personal service on the Secretary of State who by the terms of section 307 (a) is appointed defendant’s agent for service of process. Once service on the Secretary of State is complete, the argument goes, jurisdiction is acquired and subsequent deviations from required procedures (i.e., mailing by certified rather than by registered mail and not filing the affidavit of compliance) may, in the absence of prejudice, be excused as "mere irregularities”. We disagree. The argument overlooks both the critical differences in the legal bases for jurisdiction over a foreign corporation, which depend upon whether the corporation is or is not authorized to do business in the State, and the distinctions in the applicable statutes which reflect these differences.

The predicate for this State’s jurisdiction over an unauthorized foreign corporation is the fact that it is doing business in the State and has thus created a constructive presence over which New York courts can exert general jurisdiction (CPLR 301; see, Laufer v Ostrow, 55 NY2d 305, 309-310; see generally, 1 Weinstein-Korn-Miller, NY Civ Prac 301.14, 301.16). Assuming that the predicate for general jurisdiction over an unauthorized foreign corporation exists, section 307 prescribes the method for effecting service of process.

Service may be commenced on an unauthorized foreign corporation by serving the process "upon the secretary of state as its agent” (§ 307 [a]). Such process must be served personally at the office of the Secretary of State in Albany or on the deputy or an authorized agent for service (§ 307 [b]). Thereafter, notice of the service and a copy of the process must either be delivered "personally without this state to such foreign corporation” in accordance with section 307 (b) (1) or sent "by or on behalf of the plaintiff to such foreign corporation by registered mail with return receipt requested” in accordance with section 307 (b) (2). Regardless of whether such service is effected personally (§ 307 [b] [1]) or by registered mail (§ 307 [b] [2]) an affidavit of compliance must be filed in accordance with section 307 (c) (1) or section 307 (c) (2) with the clerk of the court in which the action is pending within 30 days after such service. In either case service of process is not complete until "ten days after [the affidavit of compliance containing proof of service is] filed with the clerk of the court” (§ 307 [c] [1], [2] [emphasis added]).

In the case of an unauthorized foreign corporation — as contrasted with a domestic corporation or a foreign corporation authorized to do business in the State — the designation of the Secretary of State as its agent for service is imputed, not actual. The designation is effected by statutory edict on the theory that by doing business in the State a foreign corporation has submitted itself to the jurisdiction of our courts (see, Revised Supp to Fifth Interim Report to Joint Legislative Committee to Study Revision of Corporation Laws, 1961 NY Legis Doc No. 12, at 23-24). Because the appointment of the Secretary of State as agent is a constructive rather than an actual designation, the statute contains procedures calculated to assure that the foreign corporation, in fact, receives a copy of the process. Section 307 (b) specifies that service "shall be sufficient if notice thereof and a copy of the process” (emphasis added) are either delivered personally to the foreign corporation without the State (see, § 307 [b] [1]) or sent to it by registered mail (§ 307 [b] [2]). The proof called for in the affidavit of compliance is that the required actual notice has been given either by personal service or by registered mail (see, § 307 [c] [1], [2]). These are not mere procedural technicalities but measures designed to satisfy due process requirements of actual notice.

It is significant that the Legislature, as a further assurance of actual notice to the unauthorized foreign corporation, has specified that the service of process shall not be complete until "ten days after [the required affidavit of compliance is] filed with the clerk of the court.” (§ 307 [c] [2] [emphasis added].) The Legislature in analogous statutes pertaining to service on nonresidents, it should be noted, has seen fit to impose a similar requirement of prior compliance with all statutory procedures and safeguards as a precondition for considering the service of process to be complete (see, e.g., Vehicle and Traffic Law § 253 [operating automobile within the State]; and General Business Law § 250 [operating aircraft within the State] under which nonresidents by their activities within the State are deemed to have submitted to New York jurisdiction and to have designated the Secretary of State their agent for service of process [see, Vehicle and Traffic Law § 253 (1)]; General Business Law § 250 [l]).

In contrast, service of process on a foreign corporation authorized to do business in the State is simple. There are no theoretical uncertainties concerning the basis for jurisdiction since the foreign corporation is concededly doing business in the State and, indeed, has applied for authority for the express purpose of doing so (see, Business Corporation Law § 1304 [a]). As part of its application for authority to do business, the foreign corporation must file a signed and verified designation of the Secretary of State as its agent for service of process and it must set forth the address to which the copy of any process is to be mailed (see, Business Corporation Law § 1304 [a] [6]). Because of this express designation of the Secretary of State, there can be no question that service on the Secretary of State as the foreign corporation’s designated agent is the equivalent of actual service on the foreign corporation. Thus, Business Corporation Law § 306 — unlike section 307 — provides that "[s]ervice of process on such corporation shall be complete when the secretary of state is so served” (§ 306 [b] [emphasis added]).

In sum, we hold that strict compliance with the procedures of Business Corporation Law § 307 is required to effect service on an unauthorized foreign corporation (accord, Lansdowne Fin. Serv. v Binladen Telecommunications Co., 95 AD2d 711, 712; Meyer v Volkswagen of Am., 92 AD2d 488; see, Macchia v Russo, 67 NY2d 592, 595; see also, Adirondack Tr. Lines v Lapaglia, 128 AD2d 228, 231; Elliot v James, 97 AD2d 428). The case of Marine Midland Realty Credit Corp. v Welbilt Corp. (145 AD2d 84), cited by the Appellate Division, presents the converse of the situation before us — a foreign corporation authorized to do business in the State being served with process under the more stringent procedures of section 307, rather than under section 306. The holding in Marine Midland — that personal delivery of process to the Secretary of State in Albany was sufficient for the completion of service and that the irregularities caused by proceeding under section 307 could be disregarded — highlights the crucial point. In Marine Midland, unlike the case at bar, the defendant was authorized to do business in the State and had filed an actual designation of the Secretary of State as agent for service of process (see, Business Corporation Law § 1304 [a] [6]).

The order of the Appellate Division should be reversed, with costs, defendant’s motion to dismiss plaintiff’s summons with notice granted and the certified question answered in the affirmative.

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

Order reversed, etc.

      . The operation of Business Corporation Law § 307 is specifically limited to circumstances where there is a basis for general jurisdiction over the foreign corporation under CPLR article 3 "(a) In any case in which a non-domiciliary would be subject to the personal or other jurisdiction of the courts of this state under article three of the civil practice law and rules, a foreign corporation not authorized to do business in this state is subject to a like jurisdiction. In any such case, process against such foreign corporation may be served upon the secretary of state as its agent. Such process may issue in any court in this state having jurisdiction of the subject matter” (§ 307 [a] [emphasis added]).

      . These analogous statutes contain requirements for out-of-State service on the nonresident by registered or certified mail, for filing an affidavit of compliance and specifying that proof of service must be filed in order for service of process to be deemed complete (see, Vehicle and Traffic Law § 253 [2]; General Business Law § 250 [2]).


author: Titone, J.

text:
    The People of the State of New York, Respondent, v William McKenna, Appellant.
    Argued March 22, 1990;
    decided May 8, 1990

      POINTS OF COUNSEL

      Barbara L. Hartung for appellant.

      Charles J. Hynes, District Attorney (Amy Appelbaum and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

This appeal requires us to revisit the problem of applying CPL 30.30’s strictures to "postreadiness” delays occasioned by the actions, or inaction, of the People. In the leading case, People v Anderson (66 NY2d 529), we held that once the People have declared their readiness on the record, their subsequent delays in producing Rosario material and complying with certain other discovery obligations do not ordinarily render the indictment subject to dismissal under CPL 30.30, since delays of this nature do not affect the People’s readiness to proceed to trial and, in any event, there exist other statutory sanctions for such delays. Applying the same analysis for "postreadiness” delays that we used in Anderson, we now conclude that a different result must ensue when, without justification or excuse, the People delay in producing Grand Jury minutes required for judicial resolution of the defendant’s pretrial CPL 210.30 motion.

Defendant was charged with several felony assault counts for having allegedly participated in a melee that left one man permanently brain damaged and three other individuals with serious injuries. The action against him was commenced with the filing of an accusatory instrument on March 17, 1985. Defendant was arraigned on an indictment some 74 days later on June 5, 1985, and the People declared their readiness for trial on June 26, 1985. By August 1, 1985, defendant had made an omnibus motion, which included a request for inspection and dismissal of the indictment for evidentiary insufficiency (see, CPL 210.30), and the People had filed a written response. The People did not, however, simultaneously make a complete set of the Grand Jury minutes available for the court’s inspection.

Between August 1 and December 17, 1985, the parties appeared at various calendar calls, and the People continued to answer "ready” subject to some minor difficulties, which were resolved by "charging” the People with a total of 16 days’ delay. On the latter date, the court, which had still not received the Grand Jury minutes, advised the prosecutor that it would "charge” every ensuing day to the People until those minutes were filed. On January 3, 1986, the People produced the minutes, enabling the court to decide defendant’s CPL 210.30 motion. Following the denial of that motion, defendant moved to dismiss the indictment, arguing that, when coupled with the earlier delays chargeable to the People, the People’s failure to produce the Grand Jury minutes during the 155-day period between August 1, 1985 and January 3, 1986 violated their obligation under CPL 30.30 to be ready for trial within the statutorily prescribed period.

Based upon the evidence adduced at a hearing on the motion, the trial court determined that the minutes in question had been transcribed and delivered to the District Attorney’s file room on June 25, 1985, but were not retrieved until December 2, 1985 and were not actually delivered to the court until a full month later. Finding this delay to have been occasioned solely by the negligence of the District Attorney’s office, the court nonetheless concluded that the entire delay period was not cognizable under CPL 30.30 because, in its view, the People’s ability to proceed to trial was "in no way affected.” In support of its ruling, the court relied heavily on our then-recent decision in People v Anderson (66 NY2d 529, supra).

Following the denial of defendant’s CPL 30.30 motion, defendant was tried and convicted of the charged counts. The Appellate Division affirmed the judgment of conviction. We now reverse.

CPL 30.30 (1) (a) requires the People to be ready for trial within six months of the commencement of a criminal action in which a felony is charged. CPL 30.30 (4) lists the periods which are to be excluded from the computation of the time within which the People are required to be ready, and CPL 30.30 (3) (b) relieves the People of the consequences of unreadiness where they "were ready for trial prior to the expiration of the specified period and their present unreadiness is due to some exceptional fact or circumstance”.

Despite the apparent straightforwardness of the statutory scheme, the statute has spawned a multitude of legal questions, which we have attempted to resolve on a case-by-case basis. In a series of cases beginning with People ex rel. Franklin v Warden (31 NY2d 498), this court has considered the requirements of CPL 30.30 and has consistently construed it in light of its language and its legislative history, both of which conclusively demonstrate that this so-called "speedy trial” statute was intended only to address delays occasioned by prosecutorial inaction (e.g., People v Sinistaj, 67 NY2d 236, 239; People v Anderson, supra, at 535; People v Worley, 66 NY2d 523, 527; People v Brothers, 50 NY2d 413, 416-417; see, e.g., People v Giordano, 56 NY2d 524; People v Hamilton, 46 NY2d 932).

Thus, in People ex rel. Franklin v Warden (supra), the court held that CPL 30.30 may not be invoked when the People are ready to proceed within the applicable time period and trial is delayed due to court congestion (see also, People v Giordano, supra). As a corollary to the holding in Franklin, the court held in People v Brothers (supra, at 417) that, absent exceptional circumstances, the People cannot rely on court congestion as a defense to an otherwise valid CPL 30.30 claim, since the key to compliance with the statute is prosecutorial readiness and court congestion "in no sense * * * operate[s] to prevent the District Attorney from being ready”. Turning to the problem of what constitutes "readiness” in People v Kendzia (64 NY2d 331, 337), this court held that two elements must be satisfied: "First, there must be a communication of readiness by the People which appears on the trial court’s record. * * * [Second,] the prosecutor must make his statement of readiness when the People are in fact ready to proceed.” (See also, People v Hamilton, supra.) Finally, in People v Anderson (supra), we took our first close look at the problem of prosecutorial delays occurring after the statement of readiness and set forth a series of rules to govern in the application of CPL 30.30 (3) (b).

The specific aspect of Anderson that concerns us here is its statement that an unexcused "postreadiness” delay by the prosecution should not result in dismissal "if the failure, although it affected defendant’s ability to proceed with trial, had no bearing on the People’s readiness, or if a lesser corrective action, such as preclusion or continuance, would have been available had the People’s postreadiness default occurred during trial.” (66 NY2d, at 534, supra.) Applying this principle to the facts in four of the five appeals before it, the Anderson court held that prosecutorial delays in producing Rosario material and other discovery items were not cognizable under CPL 30.30 (3) (b), because there were other specific statutory sanctions available under CPL article 240. Further, in People v Alicea (66 NY2d 529), which involved a prosecutorial delay in producing the drugs for analysis by the defendant’s expert, the court noted that "although [that delay] may have affected defendant’s ability to proceed with trial, [it] had no bearing on the People’s readiness.” (People v Alicea, 66 NY2d, at 543, supra.) In contrast, in People v Jones (66 NY2d 529), the court indicated that an unexcused, postreadiness delay in producing a defendant in the People’s custody could, if sufficiently protracted, result in dismissal under CPL 30.30 (3) (b) (66 NY2d, at 540, supra; see, id., at 537-538).

Applying the Anderson principles to the facts in this case, we conclude that the People’s concededly negligent failure to provide the Grand Jury minutes for five months after their statement of readiness was made mandates dismissal of the indictment under CPL 30.30. In contrast to the discovery delays considered in Anderson, the People’s omission did not merely impair defendant’s ability to proceed to trial. Rather, because the trial could simply not go forward until the CPL 210.30 motion was decided, the People’s dilatory conduct in failing to provide the minutes necessary to that decision was a direct, and virtually insurmountable, impediment to the trial’s very commencement (cf., People v Allen, 66 NY2d 529, 542 [dismissal not required under CPL 30.30, in part because undelivered Rosario material "was not due until after the jury had been sworn”]). As such, the prosecutorial failure here must be deemed to be one having a direct bearing on the People’s readiness, since the People can hardly claim to be "ready” when they have not done all that is required of them to bring the case to the point where it may be tried. Indeed, the failure at issue in this case is directly analogous to the People’s unexcused failure to produce a defendant in their custody for trial, since in both situations it is the People’s dereliction that is preventing the defendant’s trial from going forward. Just as the latter failure was deemed to be a suitable ground for CPL 30.30 dismissal in Jones (66 NY2d, at 538), so too is the negligent failure to produce Grand Jury minutes needed for the disposition of a defendant’s CPL 210.30 motion a ground for dismissal here.

Furthermore, unlike the alternative remedies such as the preclusion orders, short-term adjournments and continuances considered in Anderson, none of the purported "remedies” that the People cite here are suitable alternatives to a CPL 30.30 dismissal. The People’s suggestion that defendant could have moved to have his bail exonerated so that he would be freed pending disposition of his case is unpersuasive, since such a "remedy” is, at best, irrelevant to CPL 30.30’s primary goal of encouraging the movement of cases to trial. Similarly, the People’s suggestion that defendant should have requested to have his case removed from the calendar until the Grand Jury minutes were produced is unacceptable, because it would, in effect, reward the People for their own dilatory conduct by relieving them of even the minimal pressure of having to report on the case’s progress at periodic calendar calls.

For the same reasons, the People’s contention, repeated throughout their brief and during the oral argument, that the dilemma could have been resolved if defendant had simply been willing to withdraw his CPL 210.30 motion is untenable. It cannot seriously be maintained that a defendant’s statutory right to prosecutorial readiness may be conditioned upon a waiver of his statutory right to test the sufficiency of the evidence before the Grand Jury. Moreover, the People cannot be permitted to avoid the consequences of their own negligence by placing the onus on a defendant who is merely exercising the rights that the Legislature intended him to have. Finally, we reject the People’s contention that a motion to hold the prosecutor in contempt is a suitable alternative sanction. Indeed, if the People’s argument were upheld, CPL 30.30 would effectively be superseded, at least with respect to postreadiness delays, since the same argument could be applied in virtually every case involving protracted and unexcused prosecutorial delay.

Accordingly, the People’s five-month failure to provide the Grand Jury minutes in response to defendant’s CPL 210.30 dismissal motion is a delay that should be counted against them in determining whether their obligation under CPL 30.30 has been satisfied. When added to the prereadiness periods of delay that the People acknowledge may be attributed to them, this five-month period of postreadiness delay places the People well over the mandatory time limit for prosecutorial readiness (see, People v Anderson, supra, at 536-537 [holding that the People may "tack” any unexpired prereadiness days onto the postreadiness period]). Thus, the indictment against defendant should have been dismissed.

Accordingly, the order of the Appellate Division should be reversed and the indictment against defendant McKenna dismissed.

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

Order reversed, etc.

       To the extent that the People suggest that their CPL 30.30 "readiness” should be evaluated from the narrow perspective of their preparedness to present their own case, their argument must be rejected as a gross overreading of the Anderson decision. Indeed, the argument cannot be sustained in light of the court’s conclusion in Jones that a postreadiness delay in producing the defendant is cognizable under CPL 30.30 (3) (b), since the defendant’s presence is not an element of the People’s direct case but rather is a constitutionally and statutorily mandated condition precedent to the commencement of trial.


author: Kaye, J. Simons, J.

text:
    The People of the State of New York, Appellant, v Antonio Vilardi, Respondent.
    Argued March 29,1990;
    decided May 10, 1990

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney (Seth M. Lieberman and Jay M. Cohen of counsel), for appellant.

      Alan Scribner and Larry Bronson for respondent.
   OPINION OF THE COURT

Kaye, J.

This appeal calls upon us to determine the effect to be given to the People’s failure, in an arson prosecution, to disclose a report prepared by its explosives expert that had been specifically sought by defendant in his discovery request. More particularly, we must decide whether the standard of United States v Bagley (473 US 667) should be adopted as a matter of State law.

Defendant was convicted of arson in the first degree, attempted arson in the first degree and conspiracy, for having conspired with Ronnie and William Bernacet, Ephraim Flores and Gino Romano to plant and set off one pipe bomb below a pizzeria on Nostrand Avenue in Brooklyn, and a second below a nearby laundromat. The first bomb did not explode. It was the People’s theory, however, that the bomb planted in the laundromat basement had exploded as planned, and thus the defendants were charged with arson in the first degree, as well as attempt. Damage caused by an explosion is an element of arson in the first degree (Penal Law § 150.20 [1]).

The Bernacet brothers — who unlike defendant had made fairly extensive inculpatory statements — were tried first, on the same charges on which defendant was later tried. Among the prosecution witnesses was Officer Daniel Kiely, a member of the Bomb Squad, who had inspected the laundromat basement the day after the alleged explosion. At the Bernacets’ trial, Kiely was cross-examined at length about a report he wrote the day after the incident, in which he stated that a thorough inspection of the basement revealed no evidence that there had been an explosion, but asked that the case be kept open. Although Kiely testified that he ultimately concluded (in light of reinspection of the premises a year later) that there had been an explosion, defense counsel in summation argued that there was insufficient proof of the explosion element of first degree arson, based on Kiely’s first report. The Bernacet brothers were acquitted of the completed arson (see, People v Bernacet, 108 AD2d 921, lv denied 65 NY2d 813; People v Bernacet, 112 AD2d 942, lv denied 66 NY2d 1037).

Before defendant’s trial, counsel made a pretrial request for all reports "by ballistics, firearm and explosive experts” concerning the laundromat explosion. The prosecutor — not the same Assistant District Attorney who tried the Bernacets— sent him 12 reports, not including Officer Kiely’s first report. At trial, no questions about that first report were asked during the brief cross-examination of Kiely, and no effort was made to argue that the People had failed to establish the explosion element of the top count. The sole defense was that the police informant who provided much of the evidence against defendant was too unsavory to be credited. Police officers and the informant Francisco Martinez — who was hired by the defendant and the Bernacets to help carry out the bombings — testified that Martinez was reporting to the police from the outset, and a taped conversation between defendant and Martinez concerning the bombings was introduced into evidence. Defendant was convicted on all counts.

While preparing defendant’s appeal, appellate counsel reviewed the transcript of the Bernacets’ trial, and realized that there was an undisclosed explosives report. Defendant made a motion to vacate the judgment of conviction, pursuant to CPL 440.10, arguing both that the undisclosed report was Brady material (and failure to disclose violated his due process rights under the State and Federal Constitutions) and that his trial counsel had been ineffective. The People responded that nondisclosure did not require reversal, as there was overwhelming evidence of defendant’s guilt, including Officer Kiely’s ultimate conclusion that the laundromat bomb had indeed caused an explosion and testimony by residents of the building that there had been a "bang” and that the building had shaken. The District Attorney also noted that there was an issue as to whether the substance of the report, even if exculpatory, had been withheld.

The trial court summarily denied defendant’s motion, holding that the Brady claim should have been raised on direct appeal and that defendant had received the effective assistance of counsel. The Appellate Division modified. Although it too found no merit in the ineffective assistance claim, the court rejected the District Attorney’s remaining contentions, as do we.

The Appellate Division concluded that defendant’s Brady claim was properly raised pursuant to CPL 440.10, and granted defendant’s motion to the extent of vacating his conviction of arson in the first degree. Distinguishing this case —in which counsel had specifically sought the undisclosed report — from a case in which no specific request had been made, the Appellate Division held that the report was exculpatory, that the prosecution violated the defendant’s constitutional right to be informed of exculpatory information known to the State, and that reversal was required "if there is a reasonable possibility that [the undisclosed material] contributed to the defendant’s conviction.” (150 AD2d 819, 820.) Concluding that the People had not met that standard, the Appellate Division ordered a new trial on the completed arson charge to which the exculpatory material was relevant. We now affirm.

Analysis

On appeal, the People contend that the standard applied by the Appellate Division was erroneous. Noting that the Supreme Court has recently articulated a single standard for determination of when a prosecutor’s failure to disclose evidence favorable to the defendant requires reversal (see, United States v Bagley, 473 US 667, supra), the People argue that this court adopted that standard in People v Chin (67 NY2d 22). Thus, the People reason, the Appellate Division should have applied the Bagley standard: that failure to disclose favorable evidence is "constitutional error * * * only if the evidence [was] material in the sense that * * * there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different” (United States v Bagley, 473 US, at 678, 682, supra [emphasis added]). The Appellate Division’s assessment, according to the People, was improperly based on a "reasonable possibility” standard more favorable to defendant, as there is no longer any distinction between cases in which a specific request has been made for undisclosed Brady material and those in which it has not.

Contrary to the People’s claim, this court has not yet had occasion to consider, under State law, whether to adopt Bagley’s broad formulation of the materiality standard in the context of a case where the prosecutor has failed to turn over particular exculpatory evidence, despite the fact that defendant has requested disclosure of that very evidence. People v Chin was not such a case. As is made plain in the Chin opinion, the claimed Brady material was not exculpatory evidence; no demand had been made for it; and the People had no knowledge of it before trial (People v Chin, 67 NY2d, at 33, supra; see also, People v Brown, 67 NY2d 555, 559, cert denied 479 US 1093). In this case, by contrast, the withheld report is plainly exculpatory, as it suggests there was no evidence of a crucial element of the first degree arson charge; there is no dispute that the report was in the People’s possession; and defendant specifically sought discovery of the very material involved here — reports of explosives experts.

Thus, unlike Chin, this case does require us to decide whether Bagley should be adopted as a matter of State law.

I.

Federal constitutional law concerning the People’s failure to disclose exculpatory evidence originated in a series of cases involving the prosecution’s knowing use of perjured testimony (see, United States v Bagley, 473 US, at 679, n 8, supra [discussing cases]).

In Brady v Maryland (373 US 83), decided nearly 30 years ago, the Supreme Court established, as a matter of Federal constitutional law, that the prosecution’s failure to disclose to the defense evidence in its possession both favorable and material to the defense entitles the defendant to a new trial. Brady itself involved failure to disclose evidence that had been specifically requested by the defense, and the court noted that the nondisclosure was constitutional error if the evidence would "tend to exculpate” the defendant (373 US, at 88, supra).

Following the Brady decision, there was considerable doubt as to whether a specific request for the exculpatory evidence might not be an indispensable element of a Brady claim (see, Comment, Brady v Maryland and the Prosecutor’s Duty to Disclose, 40 U Chi L Rev 112, 115-117 [1972]). It was in response to this doubt that in United States v Agurs (427 US 97), the court created a two-tiered framework for determining whether favorable evidence was "material,” so that the failure to disclose it required a new trial. Evidence specifically requested by the defense was material if it "might have affected the outcome of the trial.” (Id., at 104.) By contrast, in cases where there had been no request, or only a general request for exculpatory material, the prosecution’s duty to disclose arose entirely from the notice provided by the very nature of the evidence, and the standard for a new trial was higher: undisclosed exculpatory evidence was material only if it "create[d] a reasonable doubt that did not otherwise exist.” (427 US, at 112.)

In Agurs, the court reasoned that it was appropriate to impose a lesser burden on the defendant in a "specific request” case because such a request puts the prosecutor on notice that there is particular evidence the defense does not have and believes to be important. By contrast, use of the "might have affected” standard where the prosecutor had been given no such notice might require something close to open file discovery (United States v Agurs, 427 US, at 106-109, supra). As the court noted, "[w]hen the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable” (id., at 106), and this has been read as "reflecting] the view that [in the specific request cases], the prosecutor’s responsibility for any resulting trial deception is clear.” (2 LaFave & Israel, Criminal Law § 19.5, at 538.) This court has likewise found the prosecution’s failure to turn over specifically requested evidence to be "seldom, if ever, excusable” and to verge on prosecutorial misconduct (see, People v Brown, 67 NY2d 555, 559, supra; People v Cwikla, 46 NY2d 434, 441-442).

In Bagley, a deeply divided Supreme Court reconsidered its two-tiered approach, and replaced it with a single standard applicable in all cases. Adopting the very same test it had just formulated in Strickland v Washington (466 US 668) for determining ineffective assistance of counsel claims, the court in Bagley held that undisclosed evidence is material only if there is a "reasonable probability” that it "would” have altered the outcome of the trial; a reasonable probability is "a probability sufficient to undermine confidence in the outcome.” (473 US, at 682.) The court opined that this standard was "sufficiently flexible” to cover both the "specific request” and "no request/general request” cases. Justice Blackmun observed that a prosecutor’s failure to respond to a specific request not only deprives the defense of the exculpatory evidence (as in all Brady cases) but also may have the effect of misleading the defense to conclude that the particular evidence does not exist, and therefore to abandon its investigative and trial efforts in that direction. But he concluded that under the Strickland formulation, any such additional adverse consequences could be taken into consideration by a reviewing court in the totality of the circumstances, and no separate standard was necessary (id., at 682-6S3).

Thus, while continuing to give at least a theoretical preference to specific request cases, the Supreme Court’s new rationale and approach are entirely different from Agurs. Indeed, Justice Stevens, the author of the majority opinion in Agurs, dissented in Bagley on the ground that "[b]ecause this constitutional duty to disclose [in the absence of a request] is different from the duty described in Brady, it is not surprising that we developed a different standard of materiality in the Agurs context.” (473 US, at 711 [Stevens, J., dissenting; emphasis in original].) Rather than giving more serious consideration to specific requests both because of the greater degree of notice they provide, and out of reasons of fairness and prosecutorial misconduct, in Bagley the court jettisoned such considerations in favor of a single standard, which in some undefined measure may — or may not — include adverse consequences in the specific request context. (See, Note, Specific Requests and the Prosecutorial Duty to Disclose Evidence: The Impact of United States v Bagley, 1986 Duke LJ 892.)

From a Federal standard of "seldom, if ever, excusable,” it appears that the prosecution’s failure to turn over specifically requested evidence, under Bagley, will now seldom, if ever, be unexcused.

II.

Over the course of the decades since Brady was decided, the courts of this State, obviously, have had to deal on a practical level with the consequences of a prosecutor’s failure to disclose evidence requested by the defense.

As is the Federal rule of Brady, this court’s analysis of the prosecutor’s duty to disclose exculpatory evidence is rooted in cases dealing with the similar question of knowing prosecutorial use of false and misleading testimony (see, People v Savvides, 1 NY2d 554, 556-557; People v Creasy, 236, NY 205, 221). Notably, these cases even predate the identified Federal progenitors of Brady, and were decided entirely without reference to Federal law, based on our own view of this State’s requirements for a fair trial.

Our own view of important State concerns in this matter has differed significantly from the Supreme Court’s newest interpretation of the dictates of the Federal due process standard.

We have long emphasized that our view of due process in this area is, in large measure, predicated both upon "elemental fairness” to the defendant, and upon concern that the prosecutor’s office discharge its ethical and professional obligations (see, People v Novoa, 70 NY2d 490, 496-499; People v Cwikla, 46 NY2d 434, 441-442, supra; People v Simmons, 36 NY2d 126, 131-132; People v Savvides, 1 NY2d 554, 556-557, supra; People v Creasy, 236 NY 205, 221, supra). Although we have refused, in this context, to adopt a rulé of automatic reversal, we have endorsed the proposition that " 'the strictness of the application of the harmless error standard seems somewhat to vary, and its reciprocal, the required showing of prejudice, to vary inversely, with the degree to which the conduct of the trial has violated basic concepts of fair play.’ ” (People v Fein, 18 NY2d 162, 174, cert denied 385 US 649, reh denied 386 US 978 [citing Kyle v United States, 297 F2d 507, 514].) Indeed, in a related area, we have found our State concerns for fairness and prosecutorial misconduct to be of such paramount importance that we have imposed a rule of automatic reversal for nondisclosure (People v Ranghelle, 69 NY2d 56; People v Perez, 65 NY2d 154).

In accordance with our long-standing State concerns, in cases involving failure to disclose material specifically requested by a defendant, we have described the standard as one premised on Agurs, and that has been understood and cited again and again as the governing standard throughout the State (see, e.g., People v Smith, 63 NY2d 41, 67; People v Porter, 128 AD2d 248, 253-254; People v Velez, 118 AD2d 116, 119-120; People v Pugh, 107 AD2d 521, 530; People v Kitt, 86 AD2d 465, 467; People v Ramos, 146 Misc 2d 168, 171-172 [predicting that this court will retain Agurs and reject Bagley, consistent with its "right sense of justice” sentiment evidenced in the Rosario cases]).

We decline to abandon these accepted principles in order to conform to the lesser protections of Bagley.

III.

We agree with the Appellate Division that a showing of a "reasonable possibility” that the failure to disclose the exculpatory report contributed to the verdict remains the appropriate standard to measure materiality, where the prosecutor was made aware by a specific discovery request that defendant considered the material important to the defense. As we have previously noted (People v Cwikla, 46 NY2d, at 441, supra), suppression, or even negligent failure to disclose, is more serious in the face of a specific request in its potential to undermine the fairness of the trial, and ought to be given more weight than as simply one of a number of discretionary factors to be considered by a reviewing court.

Further, a backward-looking, outcome-oriented standard of review that gives dispositive weight to the strength of the People’s case clearly provides diminished incentive for the prosecutor, in first responding to discovery requests, thoroughly to review files for exculpatory material, or to err on the side of disclosure where exculpatory value is debatable. Where the defense itself has provided specific notice of its interest in particular material, heightened rather than lessened prosecutorial care is appropriate.

The "reasonable possibility” standard applied by the Appellate Division — essentially a reformulation of the "seldom if ever excusable” rule — is a clear rule that properly encourages compliance with these obligations, and we therefore conclude that as a matter of State constitutional law it is preferable to Bagley (see, People v P. J. Video, 68 NY2d 296). Moreover, the Strickland "reasonable probability” standard — which we have chosen not to adopt as a matter of State law despite several invitations to do so — remits the impact of the exculpatory evidence to appellate hindsight, thus significantly diminishing the vital interest this court has long recognized in a decision rendered by a jury whose ability to render that decision is unimpaired by failure to disclose important evidence (see, People v Savvides, 1 NY2d, at 557, supra).

Finally, the new Bagley standard is hardly clear. The Supreme Court itself could not muster a plurality on how the new standard was to be applied to the case before it, and the case has engendered considerable confusion (see, n 4, supra).

For all of these reasons, and not because we "merely * * * disagree[ ] with [the Supreme Court] or dislike[ ] the result reached” (concurring opn, at 80), we choose to adhere to our existing standard as a matter of due process of law under the State Constitution.

IV.

Applying that standard in this case, we agree with the Appellate Division that defendant is entitled to a new trial on the first degree arson charge, as there was at least a reasonable possibility that defendant would not have been convicted on that count had the exculpatory report been available to him at trial. That a contemporaneous and avowedly "thorough” inspection of the bomb site by an expert had led him to conclude that no explosion occurred well might have caused the jury to discount his contrary assertion at trial, which was based on challenged circumstantial evidence and arrived at only after the passage of a year. It is the reasonable possibility that the undisclosed evidence might have led to a trial strategy that resulted in a different outcome (as appears to have happened in the Bernacets’ case) that requires reversal.

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

Simons, J.

(concurring). I, too, would affirm because the evidence should have been turned over to defendant. I write separately, however, because I do not agree with the majority’s standard for determining materiality based on the nature of the defendant’s request. I agree with the Supreme Court that exculpatory evidence is either material to guilt or not material; it does not become more so because of the form of the defendant’s request for it. Because I can find no reason to construe our State Constitution’s Due Process Clause in a way different from the Due Process Clauses in the Federal Constitution, I would apply the Federal standard and hold that Brady evidence is material only if there is a reasonable probability that the prosecution’s failure to deliver it affects the outcome of the trial.

I

In Brady v Maryland (373 US 83), the Supreme Court held that the prosecution must disclose to defendant evidence in its possession that is (1) favorable to the defense and (2) material either to guilt or punishment. The failure to do so violates the constitutional guarantee of due process. The question presented by this appeal is what evidence is material. The Brady court offered no guidance on the question but the subject was subsequently discussed in United States v Agurs (427 US 97) and resolved as a matter of Federal constitutional law in United States v Bagley (473 US 667).

In Agurs the defense did not request Brady material. Nevertheless, the court equated no request with a general request and held that under either circumstance evidence should not be considered material unless it was so obviously supportive of a claim of innocence that elementary fairness suggests it should have been disclosed (United States v Agurs, supra, at 104). The court had no such concern that the outcome of the Agurs trial was affected by the failure to turn over Brady material and affirmed defendant’s conviction. Having decided the case before it, the court went on to suggest that in cases in which the defendant has made a specific request for exculpatory material, the standard of materiality could be more favorable to defendant. As commentators have noted, the decision is not without its ambiguities (see generally, discussion of Agurs in 2 LaFave & Israel, Criminal Procedure § 19.5, at 537-541).

The Supreme Court resolved these ambiguities in United States v Bagley. Bagley involved a specific request for Brady material but the court formulated a standard of materiality applicable to all nondisclosure cases. It held that evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense the result of the proceeding would have been different. The Bagley majority rejected the suggestion in Agurs that a defendant who had made a specific request was entitled to greater consideration, and the prosecutor less, in assessing the materiality of the requested evidence. Bagley’s rule of reasonable probability is unquestionably the Federal rule for testing materiality in all Brady cases (see, Pennsylvania v Ritchie, 480 US 39, 57 [Powell, J.]; People v Chin, 67 NY2d 22, 33; 2 LaFave & Israel, Criminal Procedure § 19.5, at 153 [Supp 1989]).

II

The issue then is whether New York should apply a standard more favorable to defendants as a matter of State law. When presented with such a question, the court exercises its independent judgment to determine the scope and effect of the guarantees contained in the State Constitution; it is not bound by a decision of the Supreme Court limiting the scope of similar guarantees in the Federal Constitution (see, People v Barber, 289 NY 378, 384). Uniformity and consistency, though certainly not controlling, are nevertheless important factors, and the court should not disregard the Supreme Court’s decisions merely because it disagrees with them or dislikes the result reached. We explained the appropriate analysis fully in People v P. J. Video (68 NY2d 296, 301-303; see also, People v Kohl, 72 NY2d 191, 197; People v Alvarez, 70 NY2d 375, 378-379; see generally, Bonventre, Beyond the Reemergence — "Inverse Incorporation” and other Prospects for State Constitutional Law, 53 Albany L Rev 403, 407-412). Briefly, if the language of the Federal provision and its State counterpart differ, then the State court, after examining the State provision and its textual and historical differences, may conclude that it should be construed otherwise than the Federal provision. Even if the language of the two provisions is the same, however, the court may conclude that a different construction is in order because of noninterpretative considerations. Such considerations include whether the right has historically been accorded greater protection in New York than is presently required under the Federal Constitution, whether it is "of peculiar State or local concern” and whether the State citizens have distinctive attitudes toward the right.

In People v Alvarez (70 NY2d 375, supra), we noted that though the language of New York’s Due Process Clause differs from that found in the Federal Constitution, the differences are not material and do not suggest inconsistent analysis; if the clauses are to be read differently, the construction must rest on noninterpretative factors. Analysis of those factors establishes that the Supreme Court’s decision in Bagley is analytically sound, it is consonant with State law and interests and should be the rule in New York as a matter of State constitutional law.

A.

I turn first to the analytical basis for the Bagley rule.

Due process of law requires, at a minimum, that an accused be prosecuted in proceedings that are fair. The Brady rule rests on the premise that proceedings cannot be fair if evidence is withheld which casts doubt on the guilt of the defendant. The prosecutor serves a dual role as an advocate and public officer, charged not only with the responsibility to obtain convictions but also to see that justice is done (see, Brady v Maryland, supra, at 87-88; United States v Agurs, supra, at 110-111; see also, People v Pelchat, 62 NY2d 97, 105-106). It is the prosecutor’s duty, therefore, to deliver exculpatory evidence to the defendant before trial, whether requested or not. If he or she fails to do so, the judgment of conviction must be annulled, not to punish the prosecutor but to insure defendant’s conviction has resulted from a fair trial. The omission constitutes reversible error, however, only if the evidence withheld is material.

In defining materiality, the Supreme Court has recognized that in the case of a general request or no request an overly broad construction would unduly burden prosecutors, forcing them to predict the documents in their sometimes voluminous files which might be used favorably by defendants in support of an unknown theory of defense. Inasmuch as omission would result in reversible error, prosecutors could be required to open their entire file to the defense. Whether an open file procedure is desirable or not, it is not the method under which the criminal justice system presently works. We rely on adversarial proceedings to discover truth and determine guilt or innocence.

It was with these considerations in mind that an accused’s specific request for Brady material acquired significance. By identifying the material sought, the defendant provided notice to the prosecution and eliminated its need to review extensive files and speculate about the usefulness of the documents to defendant. It was this notice aspect of specific requests which prompted the statement in Agurs, recited in some of our decisions (see, People v Brown, 67 NY2d 555, 559; People v Cwikla, 46 NY2d 434, 441-442), that when the "prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable” (United States v Agurs, supra, at 106). The majority, emphasizing this statement, maintain that the standard of materiality should be more favorable to the accused because of the fault of the prosecutor in failing to turn over identified material and the prejudice from assumptions by the defense as a result of the omission that no such evidence exists. The quotation does no more than express the obvious, however. A prosecutor charged with the duty of delivering exculpatory evidence to an accused should not gamble on materiality when a specific item is requested, thereby risking subsequent reversal, but hand it over, or, if in doubt, ask the court to rule on materiality before refusing to do so (see, United States v Agurs, supra, at 106-107; Note, Specific Requests and the Prosecutorial Duty To Disclose Evidence: The Impact of United States v Bagley, 1986 Duke LG 892, 909). The good or bad faith of the prosecutor in failing to deliver exculpatory evidence is irrelevant: error results because of "the character of the evidence, not the character of the prosecutor” (United States v Agurs, supra, at 110).

Moreover, although the failure to respond to a specific request may disadvantage a defendant, it does not necessarily do so and if prejudice results from the prosecutor’s withholding the defendant should be able to identify it readily. The rule the majority urges rests on a presumption that the denial of due process is more likely to occur than not when a specific request is unanswered. I find no warrant for such a presumption and no harm in requiring the defendant to prove the fact if it is so. Defendant is entitled on review to a consideration that a specific request was made of the prosecutor and, if misled or prejudiced by a failure to comply with the request, then the court must consider the effect that failure had on the outcome of the trial. But the key is the effect the omission had on the trial — not the form the request took.

This case is an illustration of that obvious truth. The charge rested upon arson by explosion and defendant specifically requested the reports of the police experts in an attempt to prove that no explosion occurred. One, expressing doubt on the question, was not turned over to defendant. Manifestly, the missing report was exculpatory and material to the issue of guilt but it did not become more so because a specific request was made for it. Nor would it have become less so if defendant had made a general request. Whether the defendant has been prejudiced by the failure to respond to a specific request is an entirely separate issue to be explored by the court, but absent some showing that prejudice resulted which affected the outcome of the trial, the defendant is not entitled to an advantage on review because a specific request was made.

B.

In the past when we have departed from the Supreme Court’s decisions, we generally have done so because (1) we chose to adhere to our own established law or because the Supreme Court has retreated from previously announced rules (e.g., People v P. J. Video, 68 NY2d 296, supra; People v Johnson, 66 NY2d 398; People v Bigelow, 66 NY2d 417), (2) to establish a more protective State right by constitutionalizing a prior fully developed common-law right (e.g., Rivers v Katz, 67 NY2d 485) or (3) because we have found a separate State rule justified by concerns peculiar to New York State residents (see, Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57, 65).

Of our recent due process cases People v Alvarez (70 NY2d 375, supra) most warrants discussion because it concerned exculpatory evidence. In Alvarez defendant contended that the police were required to preserve potentially exculpatory evidence, breath samples, on behalf of a defendant accused of drunk driving offenses. We were asked to announce a due process standard under the State Constitution more protective of defendant than that applied by the Supreme Court when it considered the same Brady argument in California v Trombetta (467 US 479). After considering the language of our Due Process Clause and any noninterpretative factors which might warrant a result different from that approved by the Supreme Court in the Trombetta case, we found no reason for departing from the Federal standard to afford New York residents greater protection in Brady cases under the State Constitution. Similarly, I find no basis in the present case to define materiality in a way to extend greater due process protection to New York State defendants than that afforded by the Federal Constitution.

Although never explicitly stated, the thrust of the majority’s argument here is that the analytical tests of P. J. Video and Alvarez are satisfied and a different New York rule warranted notwithstanding the similarity of the New York and Federal Due Process Clauses, because New York has established a body of law on the subject by following the Agurs "two-tier” approach (see, majority opn, at 73) and that our law has now been undermined because the Supreme Court has "jettisoned” the fairness considerations outlined in Agurs (see, majority opn, at 75) and adopted the new standard of materiality in Bagley. Accordingly, it contends the Agurs reasonable possibility standard should remain the appropriate rule in New York (majority opn, at 76). Indeed, the majority, noting that Brady v Maryland rests on precedents similar to our decisions in People v Savvides (1 NY2d 554) and People v Creasy (236 NY 205) suggests that New York rules on exculpatory evidence developed along independent lines parallel to the development of Brady principles in Supreme Court.

The analysis is similar to that we found persuasive in People v Johnson (supra) and People v Bigelow (supra). In those cases we were called upon to elect between applying the Aguillar-Spinelli rules formulated by the Supreme Court, rules which we had followed for many years to test hearsay evidence for probable cause purposes, and the newly stated Gates "totality of the circumstances” rule (Illinois v Gates, 462 US 213). We concluded that we would adhere to our prior decisions as a matter of State constitutional law, rather than change our rules and destabilize the law merely because the Supreme Court had revised its position on the subject.

Similar reasoning is not persuasive in this case for several reasons.

First, until Bagley had been decided the Supreme Court had never ruled on whether the failure to deliver exculpatory matter specifically requested was material in the sense that there was a reasonable possibility that had the evidence been disclosed the result of the proceeding would have been different. A specific request was made in Brady but materiality was not an issue; in Agurs there was no request. Thus, the suggestion that the Supreme Court had adopted a "two-tiered approach” to resolving the question in Agurs in 1975 and then "jettisoned” it in Bagley in 1984 is simply not accurate.

Second, New York has no constitutional rules on Brady material independent of Federal precedents. Although People v Brown (67 NY2d 555, supra) and People v Cwikla (46 NY2d 434, supra) quoted language from Agurs (see, ante, at 82), neither case required us to decide the appropriate standard for assessing materiality based upon defendant’s request for specific exculpatory evidence. Nor do any of the other decisions cited by the majority adopt the Agurs rule. Specifically, in People v Smith (63 NY2d 41), defendant made no request, let alone a specific request, for Brady material and we held that the courts below properly denied the claim because the requested evidence was not material. Nor do the cited Appellate Division decisions support the majority’s claim. In People v Velez (118 AD2d 116), there was no request for exculpatory material and no standard for materiality was stated. In People v Pugh (107 AD2d 521), defendant made a general request and no standard of materiality was stated. In People v Kitt (86 AD2d 465), the dispositive question was whether the evidence was exculpatory or not. In People v Ramos (146 Misc 2d 168,170), the court, in refusing to follow Bagley, stated that when the prosecutor failed to disclose exculpatory evidence specifically requested reversal was required per se; "[m]ateriality of the nondisclosed evidence is not a factor.” That statement does not represent past or present law in New York State or, it would seem likely, anywhere else. No New York case, that I am aware of, has ruled that the failure to disclose specifically requested material is subject to a reasonable possibility standard other than the case before us. Certainly, not enough decisions do so to support the majority’s conclusion that New York has developed a body of law on the subject which has now been undermined by the Supreme Court decision in Bagley.

Finally, I cannot agree that People v Savvides (1 NY2d 554) and People v Creasy (236 NY 205) indicate that New York has developed its own independent body of law on exculpatory evidence consistent with the Agurs dicta. Those cases do not address the requirement that the People deliver exculpatory material to the defense pretrial, they do not deal with Brady evidence at all. Rather, they address the denial of due process because the prosecutor has improperly concealed the fact that trial evidence is false. That the Supreme Court relied on similar decisions in formulating the rule in Brady v Maryland is an interesting but irrelevant coincidence. Nor does the enforcement of Brady in New York rest to any degree on People v Ranghelle (69 NY2d 56) or People v Perez (65 NY2d 154). Those Rosario decisions are governed by their own rules and rest on separate precedential and statutory authority.

Thus, applying the analysis set forth in P. J. Video (supra), People v Alvarez (supra) and similar cases, there is no analytical basis upon which to interpret New York’s Due Process Clause differently from the Due Process Clauses of the Federal Constitution as interpreted by the United States Supreme Court. The majority merely finds arguments rejected by the court in United States v Bagley (supra) more persuasive than those adopted by the court. That is within its power but a disagreement with the highest court in the land based solely on a preference for another rule when the provisions of the two Constitutions read the same raises doubt about our processes and creates instability and uncertainty in our law.

Accordingly, I would adopt the Bagley rule of materiality finding it strikes a fair and proper balance between prosecution and defense and offers the advantages of uniformity and consistency with the Federal standards in criminal proceedings and that any other rule under the State Constitution is not warranted in view of the similarity of the State and Federal Due Process Clauses.

I, therefore, concur.

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

Order affirmed.

      . All members of this court agree that Bagley holds that a rule of "reasonable probability” is now to be applicable to all failures to disclose. We agree that this court has previously recognized the rule of reasonable probability to be the holding of Bagley (People v Chin, 67 NY2d 22). And we all agree that this court has not yet chosen to adopt or reject the Bagley rule in the context of specific request cases.

      . While the Supreme Court’s use of this phrase in Agurs was apparently not intended as a precise statement of the materiality standard in such cases, courts in specific request cases have generally looked to that language in assessing materiality (see, 2 LaFave & Israel, Criminal Procedure § 19.5, at 539).

      . This court has not adopted the Strickland test for determining ineffective assistance of counsel claims (see, e.g., People v Rivera, 71 NY2d 705; People v Benn, 68 NY2d 941).

      . While writing for the court, Justice Blackmun was joined in this observation only by Justice O’Connor. Justices White, Burger and Rehnquist saw no need to elaborate on relevance of the specificity of the defense’s request for disclosure. Justices Marshall (joined by Justice Brennan) and Stevens dissented separately; Justice Powell did not participate in the decision. Thus, at least five Justices appear to believe that specific requests should be viewed somewhat differently. As one commentator noted, "[t]he initial lower court response to Bagley has been marked by a good deal of confusion.” (Note, Specific Requests and the Prosecutorial Duty to Disclose Evidence: The Impact of United States v Bagley, 1986 Duke LG 892, 914.)

      . As the concurring opinion notes in detail (see, at 85), the cited cases are of course distinguishable, in the sense that the dispositive question was not application of an articulated standard to nondisclosure of specifically requested evidence. That is hardly the point, however. The cited cases manifestly demonstrate that the courts throughout this State have long understood and repeatedly stated that failure to disclose specifically requested material is subject to a different standard of review than failure to turn over evidence that was not requested. Moreover, contrary to the concurrence’s view, People v Savvides (1 NY2d 554) and People v Creasy (236 NY 205) most certainly do support the claim that New York’s body of law on exculpatory evidence and due process originated independently of Federal law on the subject, and in subsequent cases involving evidence that even the concurrence would concede to be Brady material, we have relied upon these State law cases and discussed their rationale (see, People v Cwikla, 46 NY2d 434, 442; People v Simmons, 36 NY2d 126, 131-132).

      . After an extensive discussion, the closest the court came to stating a rule for specific requests was: "The test of materiality in a case like Brady in which specific information has been requested by the defense is not necessarily the same as in a case in which no such request has been made.” (United States v Agurs, 427 US 97,106.)

      . In urging a higher standard in specific request cases, the majority points out that the Supreme Court decision in Bagley rests in part on the standard adopted for assessing ineffective assistance of counsel claims in Strickland v Washington (466 US 668) and that we have not adopted the Strickland standard (majority opn, at 74, n 3). We have not rejected the Strickland standard either, merely finding our own prior decisions established sufficient standards when questions of ineffective assistance of counsel were presented.