author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Pedro Luis Rodriguez y Paz, Appellant. The People of the State of New York, Respondent, v Arturo Martinez, Appellant. The People of the State of New York, Respondent, v Daniel Gonzalez, Appellant.
    Argued February 7, 1983;
    decided March 29, 1983

      POINTS OF COUNSEL

      Richard A. Greenberg and David S. Zapp for Pedro Luis Rodriguez y Paz, appellant.
    I. An eavesdropping order to be executed in a judicial district other than the one in which the issuing Justice sits violates CPL article 700. (People v Washington, 46 NY2d 116; People v Sher, 38 NY2d 600; United States v Giordano, 416 US 505; People v Taylor, 39 NY2d 649; People v Osgood, 52 NY2d 37.) II. Assuming that Special Narcotics Part Justices are deemed to sit city wide and, therefore, have broader wiretapping jurisdiction, a Criminal Court Judge cannot sit in such parts consistent with article VI (§ 26, subd g) of the. New York Constitution. (People v Nicometi, 12 NY2d 428; People v Epstein, 47 AD2d 661; People v Hickey, 40 NY2d 761; Matter of Mor

      genthau v Cooke, 56 NY2d 24.) III. According Criminal Court Judges broader jurisdiction in the area of electronic surveillance than any other Judge in this State possesses is not sound policy. (Matter of Taylor v Sise, 33 NY2d 357; Matter of Moritt v Nadjari, 51 AD2d 754.) IV. A wiretap order which violates either New York’s eavesdropping statute or the State’s Constitution requires the suppression of all its evidentiary fruits. (United States v Giordano, 416 US 505; People v Washington, 46 NY2d 116; People v Sher, 38 NY2d 600.)

      Norman Mordkofsky and David J. Goldstein for Arturo Martinez and another, appellants.
    I. The Honorable George F. Roberts was not empowered to issue the subject eavesdropping warrant. (People v Sher, 38 NY2d 600; People v Glasser, 58 AD2d 448; People v Brenes, 42 NY2d 41; People v Washington, 46 NY2d 116; Matter of Temporary State Study Comm. to Investigate City of N. Y. v Greenridge, 40 AD2d 601; People v Marrero, 71 AD2d 346.) II. Evidence obtained pursuant to the jurisdictionally defective eavesdropping warrant must be suppressed. (People v Washington, 46 NY2d 116; People v Brenes, 53 AD2d 78, 42 NY2d 41; People v Hickey, 40 NY2d 761; People v Fishman, 40 NY2d 858; People v Dunn, 59 AD2d 647; People v Epstein, 47 AD2d 661; Nurenberger v State of New York, 41 NY2d 111; People v Sher, 38 NY2d 600.)

      Robert M. Morgenthau, District Attorney (Amyjane Rettew and Robert M. Pitler of counsel), for respondent.
    As a Justice of the Special Narcotics Parts of New York City, Justice George Roberts had authority to issue an eavesdropping warrant to be executed in Queens County. In any event, since this warrant was based on an unchallenged showing of probable cause and was properly executed, any alleged technical defect does not require suppression. (People v Taylor, 39 NY2d 649; People v Gonzalez, 55 NY2d 887; People v Miguel, 53 NY2d 920; People v Martin, 50 NY2d 1029; People v Booker, 49 NY2d 989; People v Sanders, 56 NY2d 51; People v Pilgrim, 52 NY2d 730; People v Cullen, 50 NY2d 168; People v Moore, 46 NY2d 1; People v Michael, 48 NY2d 1.)
   opinion of the court

Jasen, J.

The principal issue raised on this appeal is whether an Acting Supreme Court Justice designated to sit in a Special Narcotics Part of Supreme Court located in one judicial district of the City of New York has the authority to issue an eavesdropping warrant which is to be executed in another judicial district in that city. We hold that he does.

In December of 1979, New York City police officials received information indicating that a large narcotics distribution ring was operating throughout New York City. The leader of this ring was reported to be one of the defendants herein, Pedro Luis Rodriguez y Paz. This information triggered an intensive investigation aimed at arresting and prosecuting Rodriguez y Paz and his agents, accomplices and suppliers. During the course of the investigation, a substantial amount of evidence was gathered which corroborated the information received earlier and established probable cause to believe that Rodriguez y Paz and his accomplices were using an apartment in Queens, New York, and the telephone listed to Estanislao Diaz located therein to conduct their drug distributing operations. Based on this information, the New York County District Attorney applied to Acting Supreme Court Justice George Roberts, then sitting by designation in a Special Narcotics Part of Supreme Court, New York County, for an order authorizing electronic surveillance and recording of drug-related conversations over that telephone between Rodriguez y Paz and his coconspirators. On May 12, 1980, Justice Roberts issued an eavesdropping warrant authorizing the recording of those conversations. The evidence gathered pursuant to the eavesdropping warrant revealed that Rodriguez y Paz was indeed the kingpin in a large-scale drug enterprise operating throughout the City of New York.

Following the expiration of the eavesdropping warrant on June 11, 1980, Justice Roberts issued six search warrants, based primarily on evidence obtained pursuant to the eavesdropping warrant, authorizing the search of Rodriguez y Paz’ apartment in Queens and those of his accomplices in Queens, Bronx and New York Counties.

On June 22, 1980, defendants Gonzalez and Martinez were indicted for conspiracy in the second degree for their participation in the illegal narcotics enterprise. On June 26, 1980, Rodriguez y Paz was charged, in two separate indictments, with a variety of drug-related and weapons offenses.

Following his arrest and arraignment on the indictments, Rodriguez y Paz moved to controvert the eavesdropping warrant and suppress evidence derived therefrom. Shortly thereafter, both Gonzalez and Martinez joined in that motion. The defendants did not contest the sufficiency of the facts to establish probable cause to issue the warrant; nor did they object to the way the electronic surveillance was conducted. Instead, they contended that the warrant was jurisdictionally invalid because Justice Roberts, sitting in a Special Narcotics Part of Supreme Court in the First Judicial District, issued an eavesdropping warrant to be executed in the Eleventh Judicial District, in violation of CPL 700.05 (subd 4) which permits an eavesdropping warrant to be issued by “any justice of the supreme court of the judicial district in which the eavesdropping warrant is to be executed”.

In a well-reasoned opinion, Justice Shirley Levitt an denied defendants’ motions, holding that Justice Roberts was authorized to issue the warrant and that “such authority was necessary for the ‘coordinated prosecution’ of narcotics offenses in the Special Narcotics Parts of the Supreme Court which were specifically established in response to the finding by our Legislature that an ‘emergency of grave dimensions exists in narcotics law enforcement’ in New York City.” (109 Misc 2d 832, 833.) Thereupon, all three defendants pleaded guilty. Rodriguez y Paz was convicted of attempted conspiracy in the second degree and criminal possession of a controlled substance in the second degree. He was sentenced to 2-4 years in prison on the possession count and to 7 years on the attempted conspiracy count. Martinez and Gonzalez were both convicted of conspiracy in the fourth degree and each received a sentence of one year in prison. On appeal, the Appellate Division affirmed, without opinion. (People v Martinez, 88 AD2d 834; People v Gonzalez, 88 AD2d 835; People v Rodriguez y Paz, 87 AD2d 1008.)

On this appeal, defendants maintain that Justice Roberts lacked authority to issue an eavesdropping warrant which was to be executed outside the “judicial district” in which he was sitting and that the evidence seized pursuant thereto should be suppressed. Additionally, defendants argue, for the first time, that Justice Roberts could not lawfully be assigned to sit as a Justice of the Special Narcotics Court.

Defendants’ contention that the eavesdropping warrant was jurisdictionally defective is based upon a strict interpretation of CPL 700.05 (subd 4). CPL 700.10 (subd 1) provides that a “justice” may issue an eavesdropping warrant while CPL 700.05 (subd 4) defines “justice” to mean, inter alia, “any justice of the supreme court of the judicial district in which the eavesdropping warrant is to be executed”. Thus, defendants contend that Justice Roberts was not authorized to issue the subject warrant because he was sitting in a Special Narcotics Court in New York County (the First Judicial District as defined in section 6 of article VI of the New York Constitution), while the warrant was to be executed in Queens County (the Eleventh Judicial District).

While it is true, as defendants assert, that eavesdropping statutes are usually given a strict construction (see People v Washington, 46 NY2d 116, 121-122; People v Sher, 38 NY2d 600, 604), we do not believe that such rigidity is required in this case. We reach this conclusion after careful review of the over-all legislative scheme set forth in article 5-B of the Judiciary Law which was designed to curb the distribution of illegal narcotics in New York City.

In 1971, the New York Legislature enacted article 5-B of the Judiciary Law for the purpose of curbing the illegal activities of large city narcotics distributors. The Legislature recognized that “an emergency of grave dimensions exists in narcotics law enforcement in the city of New York” (Judiciary Law, § 177-a, L 1971, ch 462). The inability of law enforcement agencies to stem the distribution of illegal narcotics was termed a “crisis, which transcends the traditional jurisdictional boundaries of the counties wholly contained within such cities.” (Judiciary Law, § 177-a, as amd by L 1972, ch 633, § 2 [emphasis supplied].) In an effort to alleviate this crisis, the Legislature specifically authorized “coordinated prosecution, centralized direction and the infusion of massive new resources.” (Judiciary Law, § 177-a.)

Implicit in this mandate is a recognition that the illegal narcotics trade in New York City is no longer a regional problem confined to individually delineated judicial districts, but, rather, one that extends into all parts of the city. In order to effectively deal with this city-wide problem, the Legislature removed the “traditional jurisdictional boundaries” and combined all five counties of New York City into a single unit for purposes of prosecuting narcotics indictments. (People v Taylor, 39 NY2d 649.) In our view, the Legislature also intended that the five counties of New York City be combined into a single unit for purposes of centralizing the investigation and prosecution of the individuals operating these enterprises throughout New York City. (Cf. Judiciary Law, § 177-d, subd [iii].)

In light of the Legislature’s findings that a crisis exists in New York City narcotics law enforcement and its intent that the problem be attacked through “coordinated prosecution” and “centralized direction”, we cannot agree with defendants’ position that issuance of a warrant to be executed in another district was not authorized. We hold, therefore, that a “judicial district”, as that term is used in CPL 700.05 (subd 4) and insofar as the investigation of drug-related offenses is concerned, is intended to be liberally construed to include all five counties of New York City so that the Special Narcotics Courts can more effectively carry out the Legislature’s plan to stem the flow of illegal narcotics throughout the city.

The direction we take today is not new. In People v Taylor (39 NY2d 649, supra), after reviewing the Legislature’s purpose in enacting article 5-B of the Judiciary Law, we declined to strictly construe the term “district” as it is used in the Sixth Amendment to the United States Constitution. In that case, a defendant was arrested for selling heroin in Kings County (Second Judicial District as defined in section 6 of article VI of the New York Constitution) but was tried in a Special Narcotics Court sitting in New York County by a jury drawn from New York County. This was argued to be a violation of his Sixth Amendment right to be tried by “an impartial jury of the State and district wherein the crime shall have been committed”. In rejecting this argument, we recognized that section 6 of article VI of the New York Constitution was not meant to be determinative of the place of trial or the place from which jurors should be drawn.

Similarly, we do not believe that section 6 of article VI has any bearing on determining the extent of a Special Narcotics Court Judge’s authority to issue drug-related eavesdropping warrants. Nor is there any authority indicating that the Legislature, in light of its enactment of article 5-B of the Judiciary Law, intends for us to construe the term “judicial district”, as it is used in CPL 700.05 (subd 4), in accordance with the delineation of districts contained in section 6 of article VI. While that may very well have been the Legislature’s intent when CPL 700.05 (subd 4) was first enacted, it should be clear that the subsequent enactment of article 5-B of the Judiciary Law manifests a different intent — i.e., that Special Narcotics Court Judges have city-wide jurisdiction in authorizing the interception of conversations related to the illegal sale and distribution of narcotics throughout New York City. Such intent is implicit in the Legislature’s pronouncement that the crisis in narcotics law enforcement in New York City “transcends the traditional jurisdictional boundaries of the counties wholly contained within” that city and the Legislature’s command that in order to properly address this crisis there must be “coordinated prosecution” and “centralized direction”. (Judiciary Law, § 177-a.)

A view of the over-all legislative scheme as set forth in article 5-B of the Judiciary Law indicates that the need for “centralized direction” was intended to apply to the investigative as well as prosecutive and postconviction stages of New York City narcotics law enforcement. Particularly noteworthy is subdivision (iii) of section 177-d, which authorizes the Assistant District Attorney in charge of the Special Narcotics Courts to impanel a Grand Jury to investigate alleged commissions of drug-related offenses “in any county wholly contained in a city having a population of one million or more”. Thus, although not specifically addressing the use of eavesdropping warrants as an investigatory tool, it seems clear that the Legislature has manifested a general intent that statutes regulating the investigatory phase of narcotics law enforcement, including CPL 700.05 (subd 4), be liberally construed to effectuate the purposes underlying article 5-B of the Judiciary Law. Accordingly, we hold that the “judicial district” in which eavesdropping warrants issued by Special Narcotics Court Judges must be executed encompasses the five counties of New York City.

Defendants argue, however, that the construction which we give CPL 700.05 (subd 4) today violates the purpose behind restricting who may issue eavesdropping warrants and where such warrants may be executed — i.e., to further more responsible judicial participation in the use of electronic surveillance. (See Senate Report No. 1097, US Code Cong & Admin News, 1968, 90th Cong, p 2179.) In our view, such responsible judicial participation is guaranteed by requiring the issuing Judge to be familiar with the conditions in the area where the warrant is to be issued and executed. It cannot be seriously disputed that Special Narcotics Court Judges are sufficiently familiar with conditions existing throughout New York City to satisfy this requirement. Indeed, the Legislature itself has made it abundantly clear that “crisis” conditions exist throughout New York City with respect to the enforcement of narcotics laws. Furthermore, the Judges sitting on the Special Narcotics Courts hear and determine only narcotics indictments from all of New York City’s five counties and are, therefore, particularly well qualified to decide when the issuance of a drug-related eavesdropping warrant to be executed in New York City is appropriate and when said issuance would constitute an impermissible invasion of an individual’s privacy rights. Thus, by implicitly authorizing Special Narcotics Court Judges to issue eavesdropping warrants to be executed in all five New York City counties, the Legislature has enhanced, rather than hindered, responsible judicial participation in the use of electronic surveillance.

Defendants, citing United States v Giordano (416 US 505) and United States v Chavez (416 US 562) insist that CPL 700.05 (subd 4) must be given a narrow construction. Both Giordano and part of Chavez involve motions to suppress evidence seized pursuant to an eavesdropping warrant issued upon an application which was not authorized by “[t]he Attorney General, or any Assistant Attorney General specifically designated by the Attorney General” as required by title III of the Omnibus Crime Control and Safe Streets Act of 1968 (US Code, tit 18, § 2516, subd [1]). The Supreme Court, in both cases, gave the Federal statute a narrow construction after finding that Congress clearly intended the statute to play a central role in limiting who was authorized to issue eavesdropping warrants.

In sharp contrast, our Legislature, in enacting article 5-B of the Judiciary Law, recognized that the drug problem in New York City is a city-wide problem knowing no traditional jurisdictional boundaries and, in our view, intended CPL 700.05 (subd 4) to be liberally construed to allow Justices sitting on New York City’s Special Narcotics Courts to have jurisdiction over all narcotics-related investigations and prosecutions throughout all five New York City counties and accordingly to have authority to issue eavesdropping warrants affecting any of those counties. Defendants’ reliance on Giordano and Chavez is, therefore, misplaced.

Defendants’ remaining contention, that Justice Roberts could not lawfully be assigned to sit on the Special Narcotics Court, although not raised at the suppression hearing, is a question of law which could not have been obviated by an evidentiary showing at that hearing and, contrary to the People’s assertions, may be raised for the first time on appeal. (See Telaro v Telaro, 25 NY2d 433, 439; cf. People v Martin, 50 NY2d 1029, 1031.) Nevertheless, the argument is unpersuasive. Article VI (§ 26, subd g) of the New York State Constitution authorizes the temporary assignment of a Judge of a New York City court, such as Justice Roberts, to the Supreme Court “in the judicial department of his residence”. Since Justice Roberts, who resided in New York County, was assigned to sit in the Special Narcotics Part of Supreme Court located in New York County, defendants cannot be heard to say that his assignment violated subdivision g of section 26.

Defendants, nevertheless, insist that authorizing Justice Roberts to issue eavesdropping warrants which are to be executed outside the First Judicial District violates article VI (§ 26, subd g) because, as a result of such authority, he must be deemed to be sitting outside the judicial department of his residence. The short answer to this argument is that our Constitution specifically provides that once a Justice is properly assigned in accordance with subdivision g of section 26, as Justice Roberts was, he acquires all of “the powers, duties and jurisdiction of a judge or justice of the court to which assigned.” (Art VI, § 26, subd k.) Since Special Narcotics Court Judges have, as we interpret CPL 700.05 (subd 4) in light of article 5-B of the Judiciary Law, been given city-wide jurisdiction to authorize the interception of drug-related conversations, Justice Roberts’ assignment fully complied with both subdivisions g and k of section 26 of article VI of the New York Constitution.

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

Chief Judge Cooke and Judges Jones, Wachtler, Fuchsberg, Meyer and Simons concur.

In each case: Order affirmed.

      . CPL 700.10 (subd 1) provides in full that: “Under circumstances prescribed in this article, a justice may issue an eavesdropping warrant upon ex parte application of an applicant who is authorized by law to investigate, prosecute or participate in the prosecution of the particular designated offense which is the subject of the application.”

      . CPL 700.05 (subd 4) provides in full that: “ ‘Justice,’ except as otherwise provided herein, means any justice of an appellate division of the judicial department in which the eavesdropping warrant is to be executed, or any justice of the supreme court of the judicial district in which the eavesdropping warrant is to be executed, or any county court judge of the county in which the eavesdropping warrant is to be executed.”


source: Caselaw Access Project

author: Simons, J. Jasen, J.

license: Public Domain

text:
    Brooke Shields, Respondent-Appellant, v Garry Gross, Appellant-Respondent.
    Argued February 16, 1983;
    decided March 29, 1983

      POINTS OF COUNSEL

      A. Richard Golub and Gary S. Graifman for respondent-appellant.
    I. Plaintiff has no right to disaffirm under sections 50 and 51 of the Civil Rights Law since defendant obtained the requisite written consent and the court below erred in holding otherwise. (Matter of Presler, 171 Misc 559; Hamm v Prudential Ins. Co. of Amer., 137 App Div 504; Torry v Black, 58 NY 185; Dwyer v Corrugated Paper Prods. Co., 80 Misc 412; Lamb v Lamb, 76 Hun 186; Armour v Broadman, 283 App Div 351; Savas v Stern, 29 Misc 2d 529; Frehe v Schildwachter, 263 App Div 79, 289 NY 250; Matter of Young, 160 Misc 344; Carr v Huff, 57 Hun 18.) II. Public policy and statutory construction require that sections 50 and 51 of the Civil Rights Law be narrowly construed favorably to defendant. (Arrington v New York Times Co., 55 NY2d 433; Matter of Fischer, 261 App Div 252, 956; Miller v Town of Irondequoit, 243 App Div 240, 268 NY 578; McGraw v Watkins, 49 AD2d 958; New York Times Co. v Sullivan, 376 US 254; Bantam Books v Sullivan, 372 US 58; FCC v Midwest Video Corp.,
      440 US 689; Metromedia, Inc. v San Diego, 453 US 490; Joseph Burstyn, Inc. v Wilson, 343 US 495; Time, Inc. v Hill, 385 US 374.) III. Justice Kupferman, in his concurring opinion, erred in stating that section 3-105 of the General Obligations Law is applicable to the use of a minor’s name, picture or portrait. (Matter of Lo Bello v McLaughlin, 39 AD2d 404, 31 NY2d 782, 33 NY2d 755; Matter of Prinze [Jonas], 38 NY2d 570.) IV. Justice Kupferman, in his concurring opinion, makes new findings of fact without any basis for such findings. (Russell v Marboro Books, 18 Misc 2d 166; Kirchner v New Home Sewing Mach. Co., 135 NY 182; Adrian v Unterman, 281 App Div 81, 306 NY 771; Matter of Level Export Corp. v Wolz, Aiken & Co., 305 NY 82.) V. Justice Asch, in his concurring opinion, erroneously relies on section 2-302 of the Uniform Commercial Code and makes new findings of fact without any basis for such findings. (Matter of Alro Liqs. v New York State Liq. Auth., 29 AD2d 271; 27 NY2d 984; Matter of Izzo v Kirby, 56 Misc 2d 131; Rhodes v Sperry & Hutchinson Co., 193 NY 223.)

      Sandor Frankel and Peter M. Thall for respondent-appellant.
    I. The court below was correct in holding that in view of Brooke’s disaffirmance of the written consents, she was entitled to a permanent injunction under section 51 of the Civil Rights Law. (Adrian v Unterman, 281 App Div 81, 306 NY 771; Brinkley v Casablancas, 80 AD2d 428; Casey v Kastel, 237 NY 305; Joseph v Schatzkin, 259 NY 241; Lee v Silver, 262 App Div 149, 287 NY 575; Cohen v Brunswick Record Corp., 31 Misc 2d 525; Aborn v Janis, 62 Misc 95, 122 App Div 893; Mangini v McClurg, 24 NY2d 556; Dury v Dunadee, 52 AD2d 206; Kaufman v American Youth Hostels, 6 AD2d 223.) II. As a matter of public policy, under the doctrine of parens patriae, and because of the unconscionability of permitting public distribution of the nude photographs, Brooke, as an infant and ward of the State, is entitled to an injunction against public dissemination of the photographs, irrespective of resolution of the issue of disaffirmance. (People v Ferber, 52 NY2d 674; Sidis v F-R Pub. Corp., 113 F2d 806, 311 US 711.) III. Brooke is entitled to a permanent' injunction because the evidence at trial established — overwhelmingly and as a matter of law — that the photographs were taken, and the releases signed, for the limited purpose of the one particular use there involved. (Lazarus v Bowery Sav. Bank, 16 NY2d 793; Matter of Seagram & Sons v Tax Comm. of City of N. Y., 14 NY2d 314; Gitelson v Du Pont, 17 NY2d 46; Kratzenstein v Western Assur. Co. of City of Toronto, 116 NY 54; Weagent v Bowers, 57 F2d 679; Dworsky v Herstein, 207 App Div 333; Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; Halloran v Virginia Chems., 41 NY2d 386; O’Neil v Van Tassel, 137 NY 297.) IV. Brooke’s common-law right of privacy entitles her to a permanent injunction against public distribution of the nude photographs. (Arrington v New York Times Co., 55 NY2d 433; Binns v Vitagraph Co., 210 NY 51; Galella v Onassis, 353 F Supp 196; Spock v United States, 464 F Supp 510; Wojtowicz v Delacorte Press, 43 NY2d 858; York v Story, 324 F2d 450.) V. Brooke is entitled to at least the injunctive relief embodied in the order of the court below or a new trial. (Blumenthal v Picture Classics, 235 App Div 570, 261 NY 504; People ex rel. Bennett v Laman, 277 NY 368; Almind v Sea Beach Ry. Co., 157 App Div 230; Durgom v Columbia Broadcasting System, 29 Misc 2d 394; Civil Aeronautics Bd. v Modern Air Transp., 81 F Supp 803, 179 F2d 622; Lomax v New Broadcasting Co., 18 AD2d 229; International Text Book Co. v Connelly, 206 NY 188.)
   OPINION OF THE COURT

Simons, J.

The issue on this appeal is whether an infant model may disaffirm a prior unrestricted consent executed on her behalf by her parent and maintain an action pursuant to section 51 of the Civil Rights Law against her photographer for republication of photographs of her. We hold that she may not.

Plaintiff is now a well-known actress. For many years prior to these events she had been a child model and in 1975, when she was 10 years of age, she obtained several modeling jobs with defendant through her agent, the Ford Model Agency. One of the jobs, a series of photographs to be financed by Playboy Press, required plaintiff to pose nude in a bathtub. It was intended that these photos would be used in a publication entitled “Portfolio 8” (later renamed “Sugar and Spice”). Before the photographic sessions, plaintiff’s mother and legal guardian, Teri Shields, executed two consents in favor of defendant. After the pictures were taken, they were used not only in “Sugar and Spice” but also, to the knowledge of plaintiff and her mother, in other publications and in a display of larger-than-life photo enlargements in the windows of a store on Fifth Avenue in New York City. Indeed, plaintiff subsequently used the photos in a book that she published about herself and to do so her mother obtained an authorization from defendant to use them. Over the years defendant has also photographed plaintiff for Penthouse Magazine, New York Magazine and for advertising by the Courtauldts and Avon companies.

In 1980 plaintiff learned that several of the 1975 photographs had appeared in a French magazine called “Photo” and, disturbed by that publication and by information that defendant intended others, she attempted to buy the negatives. In 1981, she commenced this action in tort and contract seeking compensatory and punitive damages and an injunction permanently enjoining defendant from any further use of the photographs. Special Term granted plaintiff a preliminary injunction. Although it determined that as a general proposition consents given by a parent pursuant to section 51 barred the infant’s action, it found that plaintiff’s claim that the consents were invalid or restricted the use of the photographs by Playboy Press presented questions of fact. After a nonjury trial the court ruled that the consents were unrestricted as to time and use and it therefore dismissed plaintiff’s complaint. In doing so, however, it granted plaintiff limited relief. On defendant’s stipulation it permanently enjoined defendant from using the photographs in “pornographic magazines or publications whose appeal is of a predominantly prurient nature” and it charged him with the duty of policing their use. The Appellate Division, by a divided court, modified the judgment on the law and granted plaintiff a permanent injunction enjoining defendant from using the pictures for purposes of advertising or trade. Two Justices voted for the result believing that plaintiff possessed a common-law right to disaffirm the consent given defendant by her parent. Justice Kupferman concurred, believing that in addition to the common-law right, the consents were governed by section 3-105 of the General Obligations Law and therefore could be interpreted to have expired after three years. Justice Asch also concurred in the result but on other grounds. He construed the transaction as a sale of pictures, not services, and applying the Uniform Commercial Code, he interpreted the consents and found them void because they were “unconscionable” (see Uniform Commercial Code, §§ 2-102,2-302). Plaintiff had not raised that issue before the trial court, however, nor did the parties present evidence on it and we have not considered it (see Uniform Commercial Code, § 2-302, subd [2]). Justice Carro dissented and voted to affirm the judgment of Trial Term. It was his view that the consents given in conformity with the statute constituted general releases and provided a complete defense to plaintiff’s subsequent action.

The parties have filed cross appeals. Defendant requests reinstatement of the trial court’s judgment. Plaintiff requests, in the alternative, that the order of the Appellate Division be modified by striking the limitation enjoining use only for purposes of advertising and trade, or that the order of the Appellate Division should be affirmed or, failing both of these, that a new trial be granted. Since the Appellate Division accepted the trial court’s findings that the consents were valid and unrestricted as to time and use, we are presented with only a narrow issue of law concerning the legal effect to be given to the parent’s consents.

Historically, New York common law did not recognize a cause of action for invasion of privacy (Arrington v New York Times Co., 55 NY2d 433; Roberson v Rochester Folding Box Co., 171 NY 538). In 1909, however, responding to the Roberson decision, the Legislature enacted sections 50 and 51 of the Civil Rights Law; Section 50 is penal and makes it a misdemeanor to use a living person’s name, portrait or picture for advertising purposes without prior “written consent”. Section 51 is remedial and creates a related civil cause of action on behalf of the injured party permitting relief by injunction or damages (see Arrington v New York Times Co., supra, at p 439; Flores v Mosler Safe Co., 7 NY2d 276, 280). Section 51 of the statute states that the prior “written consent” which will bar the civil action is to be as “above provided”, referring to section 50, and section 50, in turn, provides that: “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor” (emphasis added).

Thus, whereas in Roberson, the infant plaintiff had no cause of action against the advertiser under the common law for using her pictures, the new statute gives a cause of action to those similarly situated unless they have executed a consent or release in writing to the advertiser before use of the photographs. The statute acts to restrict an advertiser’s prior unrestrained common-law right to use another’s photograph until written consent is obtained. Once written consent is obtained, however, the photograph may be published as permitted by its terms (see Welch v Mr. Christmas, 57 NY2d 143).

Concededly, at common law an infant could disaffirm his written consent (see Joseph v Schatzkin, 259 NY 241; Casey v Rastel, 237 NY 305) or, for that matter, a consent executed by another on his or her behalf (see Lee v Silver, 262 App Div 149, affd 287 NY 575; Goldfinger v Doherty, 153 Misc 826, affd 244 App Div 779; Aborn v Janis, 62 Misc 95, affd 122 App Div 893). Notwithstanding these rules, it is clear that the Legislature may abrogate an infant’s common-law right to disaffirm (see, e.g., General Obligations Law, § 3-101, subd 3; § 3-102, subd 1; § 3-103; Education Law, § 281; Insurance Law, § 145) or, conversely, it may confer upon infants the right to make binding contracts (see Matter of T.W.C., 38 NY2d 128, 130 [Domestic Relations Law, § 115-b]; Hamm v Prudential Ins. Co. of Amer., 137 App Div 504 [Insurance Law, § 145, formerly §55]; Matter of Presler, 171 Misc 559). Where a statute expressly permits a certain class of agreements to be made by infants, that settles the question and makes the agreement valid and enforceable. That is precisely what happened here. The Legislature, by adopting section 51, created a new cause of action and it provided in the statute itself the method for obtaining an infant’s consent to avoid liability. Construing the statute strictly, as we must since it is in derogation of the common law (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 301, subd b), the parent’s consent is binding on the infant and no words prohibiting disaffirmance are necessary to effectuate the legislative intent. Inasmuch as the consents in this case complied with the statutory requirements, they were valid and may not be disaffirmed (see Matter of T.W.C., supra).

Nor do we believe that the consents may be considered void because the parties failed to comply with the provisions of section 3-105 of the General Obligations Law requiring prior court approval of infants’ contracts. By its terms, section 3-105 applies only to performing artists, such as actors, musicians, dancers and professional athletes moreover, it is apparent by comparing other statutes with it that the Legislature knowingly has differentiated between child performers and child models. Thus, section 3229 (formerly § 3216-c) of the Education Law, which applies to “Child performers”, is referred to in section 3-105 (subd 2, par a) of the General Obligations Law but section 3230 of the Education Law, which applies to child models, is not. Child models are also recognized as a separate work classification in section 172 (subd 2, par f) of the Labor Law. Furthermore, section 3-105 was not designed to expand the rights of infants to disaffirm their contracts, as the concurring Justice at the Appellate Division would apply it, but to provide assurance to those required to deal with infants that the infants would not later disaffirm executory contracts to the adult contracting party’s disadvantage (see Matter of Prinze [Jonas], 38 NY2d 570, 575). Sections 50 and 51 as we interpret them serve the same purpose, to bring certainty to an important industry which necessarily uses minors for its work. This same need for certainty was the impetus behind not only section 3-105 but the various other sections of the General Obligations Law which prohibit disaffirmance of an infant’s contract.

Realistically, the procedures of prior court approval set forth in section 3-105, while entirely appropriate and necessary for performing artists and professional athletes, are impractical for a child model who, whether employed regularly or sporadically, works from session to session, sometimes for many different photographers. Moreover, they work for fees which are relatively modest when compared to those received" by actors or professional athletes who may be employed by one employer at considerably greater remuneration for a statutorily permissible three-year term. Indeed, the fee in this case was $450, hardly sufficient to warrant the elaborate court proceedings required by section 3-105 or to necessitate a court’s determination of what part should be set aside and preserved for the infant’s future needs. Nor do we think court approval necessary under the circumstances existing in the normal child model’s career. Given the nature of the employment, it is entirely reasonable for the Legislature to substitute the parents’ judgment and approval of what is best for their child for that of a court.

It should be noted that plaintiff did not contend that the photographs were obscene or pornographic. Her only complaint was that she was embarrassed because “they [the photographs] are not me now.” The trial court specifically found that the photographs were not pornographic and it enjoined use of them in pornographic publications. Thus, there is no need to discuss the unenforceability of certain contracts which violate public policy (see, e.g., Penal Law, § 235.00 et seq.) or to equate an infant’s common-law right to disaffirm with that principle, as the dissent apparently does.

Finally, it is claimed that the application of the statute as we interpret it may result in unanticipated and untoward consequences. If that be so, there is an obvious remedy. A parent who wishes to limit the publicity and exposure of her child need only limit the use authorized in the consent, for a defendant’s immunity from a claim for invasion of privacy is no broader than the consent executed to him (see Welch v Mr. Christmas, 57 NY2d 143, supra; Adrian v Unterman, 281 App Div 81, affd 306 NY 771).

The order of the Appellate Division should be modified by striking the further injunction against use of the photographs for uses of advertising and trade, and as so modified, the order should be affirmed.

Jasen, J.

(dissenting). Since I believe that the interests of society and this State in protecting its children must be placed above any concern for trade or commercialism, I am compelled to dissent. The State has the right and indeed the obligation to afford extraordinary protection to minors.

At the outset, it should be made clear that this case does not involve the undoing of a written consent given by a mother to invade her infant daughter’s privacy so as to affect prior benefits derived by a person relying on the validity of the consent pursuant to sections 50 and 51 of the Civil Rights Law. Rather, what is involved is the right of an infant, now 17 years of age, to disaffirm her mother’s consent with respect to future use of a nude photograph taken of her at age 10.

The majority holds, as a matter of law, not only in this case but as to all present and future consents executed by parents on behalf of children pursuant to sections 50 and 51 of the Civil Rights Law, that once a parent consents to the invasion of privacy of a child, the child is forever bound by that consent and may never disaffirm the continued invasion of his or her privacy, even where the continued invasion of the child’s privacy may cause the child enormous embarrassment, distress and humiliation.

I find this difficult to accept as a rational rule of law, particularly so when one considers that it has long been the rule in this State that a minor enjoys an almost absolute right to disaffirm a contract entered into either by the minor or by the minor’s parent on behalf of the minor (Sternlieb v Normandie Nat. Securities Corp., 263 NY 245; Joseph v Schatzkin, 259 NY 241; International Text Book Co. v Connelly, 206 NY 188; Rice v Butler, 160 NY 578; Sparman v Keim, 83 NY 245; Green v Green, 69 NY 553) and the statute in question does not in any manner abrogate this salutary right.

This right has been upheld despite the fact that the minor held himself out to be an adult (Sternlieb v Normandie Nat. Securities Corp., supra) or that a parent also attempted to contractually bind the minor (Kaufman v American Youth Hostels, 13 Misc 2d 8, mod on other grounds 6 AD2d 223, mod and certified question answered in negative 5 NY2d 1016). Significantly, whether or not the minor can restore the other contracting party to the position he was in prior to entering the contract is pertinent only to the extent that the minor, by disaffirming the contract, cannot put himself into a better position than he was in before entering the contract. (Sternlieb v Normandie Nat. Securities Corp,, supra; Rice v Butler, supra,) In the past, this court has noted that those who contract with minors do so at their own peril. (Joseph v Schatzkin, supra, at p 243.)

Understandably, such a broad right has evolved as a result of the State’s policy to provide children with as much protection as possible against being taken advantage of or exploited by adults. “The right to rescind is a legal right established for the protection of the infant” (Green v Green, supra, at p 556). This right is founded in the legal concept that an infant is incapable of contracting because he does not understand the scope of his rights and he cannot appreciate the consequences and ramifications of his decisions. Furthermore, it is feared that as an infant he may well be under the complete influence of an adult or may be unable to act in any manner which would allow him to defend his rights and interests. (28 NY Jur, Infants, § 3, pp 221-222.) Allowing a minor the right to disaffirm a contract is merely one way the common law developed to resolve those inequities and afford children the protection they require to compensate for their immaturity.

Can there be any question that the State has a compelling interest in protecting children? Indeed, the most priceless possessions we have in the Nation are our children. Recognizing this compelling interest in children, the State has assumed the role of parens patriae, undertaking with that role the responsibility of protecting children from their own inexperience. Acting in that capacity, the State has put the interests of minors above that of adults, organizations or businesses. (Rice v Butler, supra; Kaufman v American Youth Hostels, supra; Sternlieb v Normandie Nat. Securities Corp., supra.) The broad right given a minor to disaffirm a contract is, of course, an obvious example of the State’s attempt to afford an infant protection against exploitation by adults. (28 NY Jur, Infants, op. cit.) Thus, I am persuaded that, in this case, 17-year-old Brooke Shields should be afforded the right to disaffirm her mother’s consent to use a photograph of her in the nude, taken when she was 10 years old, unless it can be said, as the majority holds, that the Legislature intended to abrogate that right when it enacted sections 50 and 51 of the Civil Rights Law.

The legislative history of this statute enacted in the early 1900’s is understandably scarce. The case law prior to its passage, however, indicates that a minor’s right to disaffirm a contract under the common law was well established at that time. Additionally, it is well accepted that this statute was enacted in response to this court’s decision in Roberson v Rochester Folding Box Co. (171 NY 538; see, also, Arrington v New York Times Co., 55 NY2d 433, 439) in which the court held that a minor had no recourse against an entrepreneur who made commercial use out of her picture without her consent. Apparently, in order to alleviate litigation over whether or not consent had been given, the Legislature required that such consent be in writing and, if the person was a minor, that the parent sign the consent form. There is no indication that by requiring consent from the minor’s parents, the Legislature intended in any way to abrogate that minor’s right to disaffirm a contract at some future date. Indeed, the requirement of parental consent, like the broad right to»disaffirm a contract, was granted in order to afford the minor as much protection against exploitation as possible. The assumption, of course, was that a parent would protect the child’s interests. But if that assumption proves invalid, as may well be the case if a minor upon reaching the age of maturity realizes that the parent, too, has been exploiting him or her or had failed to adequately guard his or her interest by giving consent for pictures which caused humiliation, embarrassment and distress, then the child should be able to cure the problem by disaffirming the parent’s consent. To say, as does the majority, that the mother could have limited her consent avoids the issue. If the parent has failed to put any restrictions on the consent, as occurred in this case, and has thus failed to protect the child’s future interests, I see no reason why the child must continue to bear the burden imposed by her mother’s bad judgment. This means the child is forever bound by its parent’s decisions, even if those decisions turn out to have been exploitative of the child and detrimental to the child’s best interests.

Furthermore, nothing compels the majority’s conclusion that the right to disaffirm a contract was eliminated when the Legislature created a new cause of action for invasion of privacy merely because that statute provided safeguards for the child’s privacy by giving the parent the right to grant or withhold consent. When both rights are viewed, as I believe they must be, as protection for the child, logic and policy compels the conclusion that the two rights should exist coextensively. The requirement that a parent consent before the child’s privacy can be invaded by commercial interests establishes the parent as the first guardian of the child’s interest. But the State retains its long-standing role of parens patriae so that if the parent fails to protect the child’s interests, the State will intervene and do so. One means of doing so is to allow the child to exercise its right to disaffirm if the child concludes that its parent improvidently consented to the invasion of the child’s privacy interests. Given the strong policy concern of the State in the child’s best interests, I can only conclude that the Legislature did not intend to abrogate the child’s common-law right to disaffirm a contract when it required, by statute, the additional protection of written, parental consent prior to any commercial use of the child’s image.

This conclusion is further supported by other statutes in which the Legislature has clearly abrogated the infant’s right to disaffirm a contract in those situations in which it has determined that the damage incurred by the minor will be minimal and the cost to the contracting party or society would be great. Invariably, these are contractual situations in which the minor has incurred a contractual obligation in order to receive a benefit which cannot be deemed anything other than a benefit. For example, section 281 of the Education Law negates a minor’s right to disaffirm a contract when that contract afforded him a student loan to pursue an advanced education. (See, also, General Obligations Law, § 3-103.) No one can argue that the contract was anything other than beneficial to the minor. Such legislation was endorsed by the Law Revision Commission on the basis of a legislative finding “that the type of contract involved is clearly for the benefit of the infant”. (1961 Report of NY Law Rev Comm, pp 269, 275, citing Touster, Contracts Relating to the Services of Talented Minors and the Treatment of Their Earnings Therefrom.)

Two factors distinguish sections 50 and 51 of the Civil Rights Law from those statutory provisions which do, in certain contexts, abolish the minor’s right to disaffirm a contract. The first is that in all cases when the Legislature has intended to do so, they have made their intention clear by specific language which directly refers to the infant’s common-law right. The absence of any reference in the Civil Rights Law to the minor’s right to disaffirm a contract, especially when it is clear that the right to disaffirm was well established, indicates that the Legislature did not intend to affect that right. Secondly, unlike the other kinds of contracts which the Legislature has designated as immune from the minor’s right to disaffirm, it cannot be said that a contract releasing all rights to photographs or even limited rights to those pictures is necessarily beneficial to the infant. This is even more true when the pictures, as in this case, are of the variety which can be exploited in the future or used in publications of questionable taste.

I do not believe that the Legislature’s intent in enacting sections 50 and 51 of the Civil Rights Law was to elevate the interests of business and commercialism above the State’s interest in protecting its children. Since this statute was enacted in response to this court’s decision in Roberson v Rochester Folding Box Co. (supra), which denied an infant plaintiff any recovery for the invasion of her privacy by a commercial enterprise in using her picture without her consent, it would seem to me that the legislative intent was to expand individual protections, rather than to afford protection to commercial enterprises.

The fact that when an infant disaffirms a contract there may be harsh results to the person or commercial enterprise attempting to exploit the child has never caused the courts to alter the scope of the protection that right affords the child. The overriding interest of society in protecting its children has long been held to outweigh the interests of merchants who attempt to contract with children. (Sternlieb v Normandie Nat. Securities Corp., supra, at p 250.)

In those situations in which the Legislature has decided that business ventures need additional protection, it has done so not merely by abolishing the infant’s right to disaffirm, but, rather, by providing alternative protection. Section 3-105 of the General Obligations Law provides for judicial approval of contracts for the services of child performers or professional athletes. It is clear that the statute protects not only the business interests which are investing in and profiting from the child’s talents, but also the child. For instance, paragraph d of subdivision 2 generally restricts such contracts to a three-year period and paragraph e of subdivision 2 provides that even after approving a contract of a child performer, the court may, if it finds that the child’s well-being is in any way being impaired by its performance under the contract, revoke or modify the contract so as to protect the child. Similarly, it provides for supervision by the court of the child’s earnings to assure that the child will benefit from his labors. The clear intent of such provisions is to protect the child against any exploitation. The failure of the Legislature to cover child models in this provision indicates to me that they intended child models to retain the protections afforded by the common-law right to disaffirm a contract. It is unfortunate that by virtue of the majority’s interpretation of the Civil Rights Law those children may not in the future be afforded protection against exploitation by their own parents.

It is even more unfortunate that by its interpretation of sections 50 and 51 the majority takes away a large part of the protection those children had at common law.

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

Order modified, with costs to defendant, in accordance with the opinion herein and, as so modified, affirmed.

       The consents provided in pertinent part:
      “I hereby give the photographer, his legal representatives, and assigns, those for whom the photographer is acting, and those acting with his permission, or his employees, the right and permission to copyright and/or use, reuse and/or publish, and republish photographic pictures or portraits of me, or in which I may be distorted in character, or form, in conjunction with my own or a fictitious name, on reproductions thereof in color, or black and white made through any media by the photographer at his studio or elsewhere, for any purpose whatsoever; including the use of any printed matter in conjunction therewith.
      “I hereby waive any right to inspect or approve the finished photograph or advertising copy or printed matter that may be used in conjunction therewith or to the eventual use that it might be applied.”

       The discussion in this opinion of the policy behind affording a child the extraordinary protection of the right to disaffirm a contract should not be read, as the majority does, to equate the right to disaffirm with the principle that a court will refuse to enforce contracts which violate public policy. Indeed, had the courts below found that her mother had contracted for her daughter to pose in an obscene manner or that the photographs were obscene or pornographic, then we would not need to decide the applicability of the infant’s right to disaffirm that contract as I assume the majority would find the contract and the consent incorporated in it to violate public policy. (Penal Law, § 235.00 et seq.; People v Ferber, 52 NY2d 674 [Jasen, J., dissenting], revd 458 US_, 102 S Ct 3348, on remand 57 NY2d 256.) A contract held to be unenforceable because it violates public policy is void ab initio and, thus, there is no need to consider whether or not it may be disaffirmed.


author: Jones, J.

text:
    In the Matter of Local 252, Transport Workers Union of America, AFL-CIO, Respondent, v New York State Public Employment Relations Board, Appellant, and Metropolitan Suburban Bus Authority, Intervenor-Appellant.
    Argued February 16, 1983;
    decided March 30, 1983

      POINTS OF COUNSEL

      Martin L. Barr and Anthony Cagliostro for appellant.
    I. The court below failed properly to apply the substantial evidence review test and improperly substituted its judgment of the evidence. (Matter of Humphrey v State Ins. Fund, 298 NY 327; Matter of Purdy v Kreisberg, 47 NY2d 354; Matter of Holland v Edwards, 307 NY 38; Matter of Pell v Board of Educ., 34 NY2d 222.) II. Concerted, overly meticulous adherence to the minor equipment requirements of the Vehicle and Traffic Law when done pursuant to an abrupt change in normal practice and as a pretext to extract collective bargaining concessions, resulting in interference with the performance of the public employer’s mission, can properly be found by PERB to constitute a strike in violation of subdivision 1 of section 210 of the Civil Service Law. (Matter of Dowling v Bowen, 53 AD2d 862; Van Vlack v Ternullo, 74 AD2d 827, 53 NY2d 1003; Matter of Acosta v Wollett, 77 AD2d 769, 55 NY2d 761; Matter of Incorporated Vil. of Lynbrook v New York State Public Employment Relations Bd., 48 NY2d 398.) III. The record evidence established a concerted stoppage of work or slowdown for which the union was responsible. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176.)

      Mary P. Bass and Lester G. Freundlich for intervenorappellant.
    I. The union violated the no-strike provisions of the Taylor Law, regardless of the nature of the concerted action. (Gateway Coal Co. v Mine Workers, 414 US 368; Boys Markets v Clerks Union, 398 US 235; Teamsters Local v Lucas Flour Co., 369 US 95; Kohls v N. L. R. B., 629 F2d 173; Matter of Acosta v Wollett, 55 NY2d 761; Van Vlack v Ternullo, 53 NY2d 1003.) II. PERB’s and the PERB hearing examiner’s finding of fact that Transport Workers Union of America and its members engaged in concerted activities to pressure Metropolitan Suburban Bus Authority in its collective negotiations with Transport Workers Union of America was supported by substantial evidence. (Noce v Kaufman, 2 NY2d 347; Long Is. R. R. Co. v System Federation No. 156, Amer. Federation of Labor, 289 F Supp 119; Matter of Incorporated Vil. of Lynbrook v New York State Public Employment Relations Bd., 48 NY2d 398; City of Rome v New York State Health Dept., 65 AD2d 220, 46 NY2d 713; Matter of Purdy v Kreisberg, 47 NY2d 354; Matter of Pell v Board of Educ., 34 NY2d 222.)

      Amy Gladstein and Walter M. Meginniss, Jr., for respondent.
    I. The decision by PERB is an erroneous interpretation of the Vehicle and Traffic Law and its relationship to the Taylor Law. (City of New York v Maltbie, 274 NY 90; Cimo v State of New York, 306 NY 143; People v Newman, 32 NY2d 379, 414 US 1163; Matter of Board of Educ. v Allen, 6 NY2d 127; Matter of Nassau Ins. Co. [Epps — Public Serv. Mut. Ins. Co.], 63 AD2d 473; East End Trust Co. of City of Harrisburg, Pa. v Otten, 255 NY 283; Brooklyn Union Gas Co. vNew York State Human Rights Appeal Bd., 41 NY2d 84; Banyard v N. L. R. B., 505 F2d 342; Gelbard v United States, 408 US 41; Oliver v Donovan, 293 F Supp 958.) II. Penalizing Local 252 for conduct it was not given fair warning was prohibited by law violates due process of law. (Mullane v Central Hanover Trust Co., 339 US 306; Connolly v General Constr. Co., 269 US 385; Papachristou v City of Jacksonville, 405 US 156; Coates v City of Cincinnati, 402 US 611; Palmer v City of Euclid, 402 US 544; People v Cruz, 48 NY2d 419; Trio Distr. Corp. v City of Albany, 2 NY2d 690; Giaccio v Pennsylvania, 382 US 399; Soglin v Kauffman, 418 F2d 163; Undergraduate Student Assn. v Peltason, 367 F Supp 1055.) III. The court below did not exceed its authority by annulling PERB’s decision and order. IV. PERB abused its discretion by imposing a one-year suspension of Local 252’s right to membership dues deductions. (Matter of CVL Enterprises v State Liq. Auth., 79 AD2d 870; Matter of Franchina v Codd, 57 AD2d 394; Matter of Nathanson v Adams, 207 Misc 572.)

      Marc Silverman, Ruth Raisfeld and Laura Jacobs for “Straphangers Campaign”, amicus curiæ.

    I. The public interest in safe mass transportation demands nothing less than rigorous compliance with the Vehicle and Traffic Law. (Whirlpool Corp. v Marshall, 445 US 1; People v Frudenberg, 209 NY 218; Matter of New York State Bd. of Pharmacy v Drug Purchase, 57 AD2d 569, 46 NY2d 741; Public Serv. Comm. of State of N. Y., 2d Dist. v Booth, 170 App Div 590; Martin v Herzog, 228 NY 164; Southern S. S. Co. v Labor Bd., 316 US 31.) II. Equipment defects will go unreported because PERB’s decision will chill the willingness of the bus drivers to comply with the Vehicle and Traffic Law. (Labor Bd. v Washington Aluminum Co., 370 US 9; Brown & Root v N. L. R. B., 634 F2d 816; N. L. R. B. v Modern Carpet Inds., 611 F2d 811; Gateway Coal Co. v Mine Workers, 414 US 368; Banyard v N. L. R. B., 505 F2d 342; Whirlpool Corp. v Marshall, 445 US 1.)
   OPINION OF THE COURT

Jones, J.

The Public Employment Relations Board is not precluded from determining that concerted refusal of bus drivers to perform duties in the normal manner for the purpose of securing job-related demands constitutes a strike in violation of the Taylor Law although the normal manner of performance would entail violations of the Vehicle and Traffic Law where citation to such violations is only a pretext. In this instance the record contains substantial evidence to sustain such determination made by the board.

Local 252 of the Transport Workers Union of America, AFL-CIO, is the certified bargaining representative for a negotiating unit of some 640 public employees of the Metropolitan Suburban Bus Authority. Approximately 460 of these employees, the group which is the subject of the instant illegal strike charge, are bus drivers in the authority’s surface transportation system which serves areas in Nassau County.

The authority and the union were unable to reach agreement on a contract for the calendar year 1979, the prior agreement having expired on December 31, 1978. As a result, the unit members were working under terms and conditions imposed by the authority pursuant to the impasse procedures of section 209 of the Civil Service Law. In November of 1979, the union and the authority began negotiations for a bargaining agreement to take effect in 1980.

Sometime in November, the president of the union instructed the bus drivers at “safety classes” that they did not have to operate buses which violated the requirements of the Vehicle and Traffic Law. He told them that the union would back them up if they refused to drive buses with violations but that any bus which was in compliance with provisions of law was to be driven.

At a negotiating meeting in December of 1979, the union president warned the authority that there would be “big trouble” if the parties did not agree on a contract by 12:01 a.m. on January 1, 1980, when the arrangements then in effect were to expire. The authority and the union were thereafter unsuccessful in their efforts to reach an agreement by the end of 1979.

During the period between January 2 and January 10, 1980, many drivers submitted “bad order forms” listing equipment defects discovered on inspection of their assigned buses. The drivers submitted these forms prior to the start of their runs instead of waiting until they had completed their runs as had previously been their normal practice. In consequence the number of bus runs not operated increased significantly.

On January 8, 1980, the authority obtained a preliminary injunction from Supreme Court restraining the union members and officers from engaging in or in any way aiding or abetting a strike or other concerted stoppage or slowdown of work by any employees of the authority. The court also ordered the drivers not to “bad order” any bus unless it had a defect which presented a clear and present danger to the bus operator, the public or the users of the highways. In its opinion, the court listed certain equipment defects which would pose such an imminent danger along with other defects which would not pose such a danger. The union president went to the bus depots on January 9,1980 and advised the drivers of the terms of the court order. Thereafter, the percentage of bus runs not operated declined substantially, although on both January 9 and 10 the percentage was still higher than normal.

On April 1, 1980, after a collective bargaining agreement had been reached and ratified, the union president stated in a union newsletter that:

“I’d like to take this opportunity to thank my Union officials and, especially, the Union membership, for their overwhelming support and ratification of the M.T.A. contract offer.

“I think we showed other Unions, as well as management, that in Unity there is Strength. We showed our unity from day one, with the bus safety check, in court before Judge Altimari and the continuing safety check of our buses, in spite of the Judge’s order. Again, it was this Unity of the membership that showed management the strength the Union has, and will continue to have from now on.”

On May 29, 1980, counsel to the New York State Public Employment Relations Board (PERB) filed a charge alleging that the union had “caused, instigated, encouraged, condoned and engaged in a strike against the State during the period of January 2, 1980 through January 10, 1980”. The thrust of the charge was that numerous employees represented by the union had failed to perform their duties fully either because of a failure to perform their duties in accordance with existing practices or because of unauthorized absence from work. It was alleged that these refusals to work and absences were concerted acts of the union and its members, officers, and representatives.

In its answer, the union denied the substantive allegations made in the charge. It also set up several defenses, among which was the defense that any reduction in service was due to the employer’s failure to abide by traffic law requirements and that a strike could not consist of a refusal to work in the usual manner where performance in that manner would require the employees to violate the law.

Following hearings on the charge, the hearing officer recommended that the charge be dismissed on the ground that the conduct of the union and its members did not constitute a strike prohibited by subdivision 1 of section 210 of the Civil Service Law (the Taylor Law). After excluding bus runs not made due to legitimate absences by drivers, the hearing officer found that the percentage of runs not-made was far higher than usual and that this increase was due primarily to a lack of equipment caused by “bad ordering” of buses prior to runs, contrary to the drivers’ normal practice. Consequently, the hearing officer found sufficient evidence that many drivers were not operating as they had previously. The hearing officer further found that if this conduct constituted a strike, the union was responsible.

After noting that the charge did not include “bad ordering” for defects which posed a clear and present danger under the Supreme Court order, the hearing officer accepted the union’s defense that it could not be charged with striking for refusing to perform work in the usual manner where requiring normal performance would compel employees to violate the law. The hearing officer summarized the equipment requirements of the Vehicle and Traffic Law and noted that operation of any motor vehicle lacking this equipment is a traffic infraction. He pointed out that under the law the chauffeur is responsible for such an infraction, that an infraction is punishable by fine or imprisonment, and that the chauffeur can be assigned two points pursuant to commissioner’s regulation except for some equipment violations incurred while operating the carrier’s vehicle at work. The hearing officer also noted that violations could harm employees’ job standing due to licensing requirements and because employers are required to review each driver’s record annually and to consider the driver’s traffic law violations along with any disregard for public safety. Further, he took note of the potential civil liability to which a driver could be exposed for violating the law.

The hearing officer concluded that employees should not be required to choose between the consequences of violating section 210 of the Civil Service Law by refusing to operate buses lacking the required equipment and those of violating other laws or regulations by operating the buses. He thus read section 210 as not making illegal employee conduct which is required by other laws. Accordingly, he recommended that the charge be dismissed in all respects.

PERB, in a 2-1 decision, concluded that the drivers had engaged in a strike from January 2 through January 8, 1980 by refusing to operate buses which were not dangerous within the court order although perhaps in violation of the Vehicle and Traffic Law. The board found that the refusal to work did not involve any imminent threat to person or property and that the provisions of law were used as a mere pretext for the drivers’ concerted refusal to work in their normal manner. It determined that plans for the refusal to drive defective buses had been formulated more than a month prior to their implementation and that the sole purpose of those plans was to secure collective bargaining demands. According to the board, public employees’ abnormal and overly meticulous adherence to law and rules which has the effect of interfering with the performance of the employer’s mission and which is designed to extract bargaining concessions from the employer can be a strike within the contemplation of the Taylor Law.

The board concluded, however, that there had been no strike on January 9 and 10, the days following the Supreme Court order, there being no evidence that the union was responsible on those days for any refusals to drive buses.

In assessing a penalty, the board noted that this was the second strike by the union in which employees disqualified buses for equipment defects. Due to the limited impact of the strike charged, however, the board imposed the lowest suspension of dues deduction privileges that it had imposed on any employee organization for a second violation of section 210 of the Civil Service Law; the union’s dues deduction privileges were suspended indefinitely with leave to apply for full restoration of the privileges after the suspension had been in effect for one year.

The dissenting board member disagreed with the majority that it can be a strike under the Taylor Law if employees, for the purpose of securing negotiating demands, concertedly refuse to perform job duties in their normal manner when that normal manner would violate State law. He reasoned that the requirements of the Taylor Law and the provisions of the Vehicle and Traffic Law have a common purpose related to the performance of tasks by these employees so that they are in pari materia and should be construed together. He concluded that the Taylor Law forbids bus drivers from abstaining from the full performance of their normal duties only to the extent such normal duties are not prohibited by the Vehicle and Traffic Law.

Following transfer from Supreme Court, the Appellate Division annulled the PERB determination. The court ruled that the finding of a strike was not in accord with the proof and that the board had arbitrarily and capriciously jumped to conclusions not bottomed on evidence in the record. The court believed that the board’s determination was based primarily on the remark made by the union president that there would be “big trouble” if no contract were reached by January 1 but that the president had later shown he was acting in good faith when he persuaded drivers to comply with the Supreme Court order. We reverse the determination of the Appellate Division and reinstate that of the board.

We first must consider the legal issue presented in this case whether, when public employees alter the normal manner in which they perform their duties in order to extract bargaining concessions, but that normal manner violates State law, their conduct can legally be held to constitute a strike prohibited by the Taylor Law. Subdivision 1 of section 210 of the Civil Service Law contains a blanket prohibition against strikes by public employees: “No public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike.” The term “strike” is defined by subdivision 9 of section 201 of the Civil Service Law in expansive terms as “any strike or other concerted stoppage of work or slowdown by public employees.” These provisions, literally read, contain no exception for what the union would assert to be a “justified” strike — whether justified by law or other legitimate motivating reason. We have no occasion in the context of the present case, however, to determine whether there is merit to the categorical position advanced on behalf of the authority — that the sweep of the literal definition in subdivision 9 of section 201 is so broad as to admit of no exception and accordingly that any concerted stoppage or slowdown is a strike, whatever its motivation or the circumstances in which it takes place. A very much narrower focus suffices for the disposition of the present appeal.

The conclusion of the board that the union’s invoking reference to the provisions of the Vehicle and Traffic Law was “merely a pretext for the concerted refusal of the drivers to operate the buses” finds ample support in the record. No proof was offered, for instance, that the sanctions and penalties now conjectured would likely have been imposed in the period January 2 to January 8 had the drivers continued to perform their duties in what had been the normal manner. Perhaps most significant, there was no proof that the bus drivers were in the least apprehensive that continuation of past practice would expose them to penalties for violation of the Vehicle and Traffic Law or that their action in refusing to continue the past practice was in any way motivated by a concern for strict observance of the law, in theory or in fact. The dire consequences of violation of the law now envisaged — penal convictions, revocation of operating licenses, civil liability arising out of accidents which might occur, exposure to personal risks or to “job consequences” — must be characterized in the circumstances disclosed in this record as no more than a pretextual construct.

In Matter of Acosta v Wollett (55 NY2d 761) we upheld a determination that there had been a strike where, following destruction by fire of the building in which they normally worked, employees of the State Unemployment Insurance Department refused to work in temporary locations, notwithstanding the circumstance that their refusal was based on assertions that the working conditions at the temporary location, for which no certificate of occupancy had been issued, were hazardous and uncomfortable — that the building was unheated because the boiler was not operating, that the wires from the space heaters lying along the floor made walking hazardous, that the electricity was deficient, that exits were limited, that one toilet was stopped up. There, although the concerted action was at least taken to remedy the working conditions complained of, the concerted action of the employees was found to be unreasonable and thus warranted the determination that there had been a strike. Here the refusal to drive buses was not even calculated to enforce strict compliance on the part of the authority with the provisions of the Vehicle and Traffic Law; it was undertaken to force acceptance by the authority of the terms of a new collective bargaining agreement and thus presents an even stronger case for support of the board’s determination that this union had violated the Taylor Law.

In Van Vlack v Ternullo (53 NY2d 1003) we similarly sustained a determination that there had been a strike within the contemplation of the Taylor Law when maintenance workers and teachers at the Fishkill Correctional Facility refused to accept out-of-title emergency assignments as replacements for striking correction officers where the hearing officer who heard the testimony concluded that the employees had not met their burden of proof that their refusal was due to a bona fide fear of personal injuries or future reprisals or both. In the case now before us, by like token, there was no evidence that the bus drivers’ action in January, 1980 was motivated by concern for compliance with the provisions of the Vehicle and Traffic Law.

We do not hold that concerted refusal to engage in conduct which would entail violation of law, if taken for the purpose of enforcing job-related demands, may always be determined to constitute a strike within the contemplation of the Taylor Law. We do hold that where, as here, the reliance on a sudden concern for overly meticulous and abnormal observance of statutory commands is purely a subterfuge, the incidental circumstance that continued performance of duties in the normal manner might entail violations of statute does not legally preclude a finding that there has been a strike.

Having concluded that there is no legal barrier to such a determination, we turn to a consideration whether there was substantial evidence to support PERB’s factual determination in this case that there was a strike under the Taylor Law. The finding of a substantial change in the drivers’ normal practice is supported by testimony that there was a significant increase in the percentage of buses not operated and that this was caused by “bad ordering” before the start of runs rather than after runs. That the strike was the responsibility of the union is evidenced by the union’s holding “safety classes” in which members were told they did not have to drive buses with traffic law violations, by statements made by the union president that there would be “big trouble” if an agreement were not reached by January 1, and by the newsletter later sent to members in which the union president thanked them for their support and said that they had shown their unity with the bus safety check. Although the hearing officer made no explicit finding that in “bad ordering” the buses the union had used traffic law violations as a pretext to secure its collective bargaining demands, PERB could properly draw such a conclusion by inference from the facts found by the hearing officer, particularly where the union was found responsible for the job action, the job action was timed to occur immediately following the expiration of the interim impasse arrangement, and only violations posing no imminent danger to the safety of the public or the drivers were involved in the charge. In these circumstances we have no difficulty in concluding that PERB’s finding of a strike is grounded on substantial evidence in the record.

For the reasons stated, the judgment of the Appellate Division should be reversed, with costs, and the determination of PERB reinstated.

Chief Judge Cooke and Judges Jasen, Wachtler, Fuchsberg, Meyer and Simons concur.

Judgment reversed, etc.

      . The hearing officer found no basis to sustain the authority’s charge of unauthorized absenteeism.

      . There is no merit to the contention advanced by the union that to sustain the determination of the board in this instance is tantamount to holding that the proscriptions of the Vehicle and Traffic Law have been repealed by the Taylor Law or a holding that the provisions of the Vehicle and Traffic Law are not binding on the authority’s bus drivers. There is no necessity here to fashion the reconciliation of any apparently conflicting or incongruous statutes which may be said, as urged by the union, to stand in pari materia. Our holding here is that there is substantial evidence to support the determination of PERB that the possible application of the Vehicle and Traffic Law was functionally immaterial to the operational dynamics of this case.


author: Simons, J.

text:
    The People of the State of New York, Respondent, v John C. Mitchell, Appellant.
    Argued February 11, 1983;
    decided March 30, 1983

      POINTS OF COUNSEL

      Alfred P. Kremer for appellant.
    I. Appellant’s statements to Sergeant Page, as well as to the employees of his attorney’s office, were admitted, at trial, in violation of his right to counsel and due process under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and sections 6 and 10 of article I of the New York State Constitution. (People v Gramaldi, 52 NY2d 611; People v Albro, 52 NY2d 619; People v Bell, 50 NY2d 869; People v Maerling, 46 NY2d 289; People v Carmine A., 53 NY2d 816; People v Lucas, 53 NY2d 678; Miranda v Arizona, 384 US 436; People v Kaye, 25 NY2d 139; People v Crimmins, 36 NY2d 230.) II. The prosecution failed to prove the element of intent depriving appellant of his due process right under the United States and New York State Constitutions to be convicted only on proof of each element of the crime of murder beyond a reasonable doubt. III. The trial court’s charge that Mr. Mitchell intended the natural and probable consequences of his acts not merely shifted the burden of proof to him but conclusively resolved the element of intent against him depriving him of a fair trial within the Fourteenth Amendment of the United States Constitution and section 6 of article I of the New York State Constitution. (Mullaney v Wilbur, 421 US 684; Morissette v United States, 342 US 246; United States v United States Gypsum Co., 438 US 422; Sandstrom v Montana, 422 US 510; Brotherhood of Carpenters v United States, 330 US 395; Bollenbach v United States, 326 US 607; Bihn v United States, 328 US 633; People v Getch, 50 NY2d 456; People v Thomas, 50 NY2d 467.)

      Donald O. Chesworth, Jr., District Attorney (Melvin Bressler of counsel), for respondent.
    I. A statement to an attorney’s agent is not privileged if made in the presence of third parties; a voluntary, spontaneous statement by defendant is admissible even if he was then represented by counsel. (People v Bartolomeo, 53 NY2d 225; Matter of Priest v Hennessy, 51 NY2d 62; People v Buchanan, 145 NY 1; People v Belge, 59 AD2d 307; Matter of Jacqueline F., 47 NY2d 215; People v Lynes, 49 NY2d 286; People v Maerling, 46 NY2d 289; People v Lanahan, 55 NY2d 711.) II. The combination of direct and circumstantial evidence clearly supports the jury’s findings that defendant intentionally caused the victim’s death; the jury instruction was complete and accurate and did not mislead the jury or shift the burden of proof. (People v Harris, 136 NY 423; People v Harris, 306 NY 345; People v La Bruna, 66 AD2d 300; People v Thomas, 50 NY2d 467; People v Marr, 50 NY2d 456.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted after a jury trial of murder, second degree, for the stabbing death of a prostitute named O’Hare McMillon. He contends that his conviction must be reversed because it rests on evidence of privileged statements he made in his lawyer’s office and statements improperly solicited by a police guard while he was in custody, and because the court’s charge to the jury violated the rule in Sandstrom v Montana (442 US 510). The Appellate Division affirmed the judgment by a divided court. The majority agreed with the trial court that defendant’s statements made in the lawyer’s office were not privileged and that his statements to the jail guard were spontaneous. It held that the court’s charge though erroneous was harmless (People v Mitchell, 86 AD2d 976). The dissenter at the Appellate Division voted to reverse on the Sandstrom issue and to conduct a hearing on the question of privilege. There should be an affirmance.

Defendant was a resident of Waterloo, New York, and, at the time these events occurred, he was under indictment for causing the stabbing death of his girlfriend, Audrey Miller, in February, 1976. He was represented on that charge by Rochester attorney Felix Lapine. In January, 1977 defendant went to Rochester to take care of some personal matters and registered at the Cadillac Hotel. On the evening of January 5 while sitting at the hotel bar, he met O’Hare McMillon. They had two or three highballs and then were seen to leave the bar about 11:00 p.m. and take the elevator to the floor on which Mitchell’s room was located. No one saw either of them leave defendant’s room that night or the next. morning, but in the afternoon of January 6, on a tip from attorney Lapine, the police went to defendant’s hotel room and found the partially clad dead body of O’Hare McMillon on the bed. She had been stabbed 11-12 times in the face, chest and back. At least four of the wounds were sufficient to cause her death by exsanguination.

After leaving the hotel room that morning, defendant went to attorney Lapine’s office. Lapine was not in but defendant met and spoke to a legal secretary, Molly Altman, in the reception area. She testified that he seemed nervous and as if he was looking for someone. Apparently he could not find whomever it was he was looking for so he left only to return a minute later and start telling her about what happened the night before. She testified that he said: “he wanted to go out and have a last fling * * * he had been out drinking and met a girl and then he woke up in the morning and she was dead. He had stayed there all night and then he walked out again”.

While he was talking to Ms. Altman, Judith Peacock, another legal secretary, entered the reception area. She testified that defendant was kind of rambling on but he said that: “he had laid next to someone all night and they didn’t move, and he [was] in a bar and * * * in a hotel * * * this person who he had laid next to was black and he was worried because when the black people found out about it, they protect their own and he would be in danger”. She also testified that he muttered something about a knife.

Ms. Pope-Johnson entered the room. She asked defendant what was wrong and he told her: “that there was a dead body and he felt that he had done it and that the person was dead, that she was dead because of being stabbed.”

Shortly thereafter, Lapine entered the office and talked privately with defendant. After defendant left Lapine called the police and had them check defendant’s hotel room. The body was discovered, defendant’s identification learned from the hotel registration and defendant found and arrested at a bar near the courthouse.

At the police station while defendant was waiting to be processed, he was placed in a room and guarded by a Sergeant Page. He had been given his Miranda rights, and attorney Lapine had visited him privately and advised the police not to interrogate his client. It was Page’s testimony, credited by the trial court and the Appellate Division, that defendant, while so guarded, spontaneously asked Page if the police had found the knife and then stated: “I must have killed her like I did Audrey and I don’t remember that either.” “I picked her up in a bar last night.” At trial the statements were redacted to eliminate the reference to Audrey and received by the court as spontaneous statements. That finding of fact was supported by the evidence (see People v Lynes, 49 NY2d 286, 294; cf. People v Lanahan, 55 NY2d 711). Molly Altman, Judy Peacock and Robin Pope-Johnson also testified at trial about defendant’s inculpatory statements made in the law office after the court determined that the statements were not privileged.

I

The attorney-client privilege, developed at common law, is now contained in our statute (CPLR 4503, subd [a]). Its purpose is to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidence will not later be revealed to the public to his detriment or his embarrassment. The court recently formulated the elements of the privilege as follows: “First, it is beyond dispute that no attorney-client privilege arises unless an attorney-client relationship has been established. Such a relationship arises only when one contacts an attorney in his capacity as such for the purpose of obtaining legal advice or services. (CPLR 4503, subd [a]; see, e.g., People v Belge, 59 AD2d 307, 309; United States v United Shoe Mach. Corp., 89 F Supp 357, 358-359, supra; 8 Wigmore, § 2292.) Second, not all communications to an attorney are privileged. In order to make a valid claim of privilege, it must be shown that the information sought to be protected from disclosure was a ‘confidential communication’ made to the attorney for the purpose of obtaining legal advice or services. (Matter of Jacqueline F., 47 NY2d 215, 219, supra; People ex rel. Vogelstein v Warden of County Jail of County of N. Y., 150 Misc 714, 717-718; 8 Wigmore, § 2292.) Third, the burden of proving each element of the privilege rests upon the party asserting it. (Matter of Gavin, 39 AD2d 626, 628; Matter of Grand Jury Empanelled Feb. 14,1978, 603 F2d 469, 474.) Finally, even where the technical requirements of the privilege are satisfied, it may, nonetheless, yield in a proper case, where strong public policy requires disclosure. (Matter of Jacqueline F., 47 NY2d 215, supra; People ex rel. Vogelstein v Warden of County Jail of County of N. Y., 150 Misc 714, supra.)” (Matter of Priest v Hennessy, 51 NY2d 62, 68-69.)

Defendant sought to foreclose the testimony of Pope-Johnson, Altman and Peacock, contending that because of Lapine’s prior retainer by defendant for the homicide of his girlfriend there was an ongoing attorney-client relationship which made any statements of defendant uttered in Lapine’s office or waiting room privileged. The court excused the jury and conducted a voir dire of Mr. Lapine and Robin Pope-Johnson, Lapine’s paralegal, correctly ruling that defendant bore the burden of establishing that his statements were privileged.

Attorney Lapine testified that he was first retained by defendant in February, 1976 and that he was retained by defendant on this indictment the afternoon of January 6, 1977; that he was not present when Mitchell entered his office at noon on January 6 and that he did not know who was. Lapine did not talk with defendant about this charge until after defendant’s conversations with Ms. Pope-Johnson, Ms. Mitchell and Ms. Peacock. He testified further that he had one employee working for him at the time, Ms. Pope-Johnson. On cross-examination he testified that he occupied the offices with attorneys named Napier and Bushorr and that he and Napier were partners “[i]n a vague sort of way.” The relationship between Lapine and Napier was never clarified but Lapine did testify that Bushorr was not associated with either Napier or himself but was given free office space near Ms. Pope-Johnson’s desk in exchange for the work he did for them.

After Lapine testified, defense counsel moved to exclude the testimony of Ms. Pope-Johnson on the grounds of privilege. The court refused to accept defense counsel’s contention that there was continuous representation originating with Lapine’s retainer to represent defendant on the unrelated indictment for the February, 1976 homicide and held also that the employee could not establish an attorney-client- relationship for her employer in his absence. The court ruled that Ms. Pope-Johnson could testify to any conversation with defendant before Lapine returned to the office.

Defense counsel then conducted a voir dire of Ms. Pope-Johnson. She testified that she knew of the representation on the 1976 homicide but that she had, at most, said hello to defendant prior to January 6 and that she did not speak to him on the telephone about this case that day before he came to the office. Defense counsel then considered checking Lapine’s telephone logs or offering defendant’s testimony that there .had been a morning telephone call to Ms. Pope-Johnson to establish the retainer. The court did not foreclose the evidence but indicated that in its judgment it would not be sufficient to establish that an attorney-client relationship hád been created before defendant came to the office. Counsel offered no further evidence. The District Attorney then stated that he had discovered that defendant had also made statements to Molly Altman and Judy Peacock. The court asked the attorney if they were employees of the office and the District Attorney answered, “[t]wo secretaries”. The court stated that its ruling would be the same as that made for the testimony of Ms. Pope-Johnson. Defense counsel did not confirm or correct the court’s statements about the other women’s relationship to the office. The District Attorney then stated that defendant’s statements were also made in the presence of a client who was in the office, but evidence of the presence of such a person was never offered.

On this state of the record, we conclude that defendant has not met his burden of establishing that when he spoke to these unknown women in a common reception area, his statements were intended to be confidential and made to an employee of his attorney for the purpose of obtaining legal advice. The only evidence identifying the women came from Lapine who responded to a question whether he had “any female employees” by saying “Yes, Robin Pope-Johnson”. She, it turns out, was the last woman in the office to hear defendant’s inculpatory statements and even if statements made to her at the time could have been privileged, the privilege was lost because of the prior publication to nonemployees and the utterance of the statements to Pope-Johnson in front of the nonemployees (see People v Buchanan, 145 NY 1, 26; People v Belge, 59 AD2d 307, 309). Taking this view we need not consider whether the statements could be privileged because of an ongoing retainer between defendant and Lapine or if they could be privileged if made to the attorney’s employee before a formal retainer was agreed upon.

II

Over defendant’s objection, the court charged the jury that a “person is presumed to intend the natural and probable consequences of his act and, accordingly, if the consequences are natural and probable, he will not be heard to say that he did not intend them.” We agree with defendant that the charge was erroneous (see Sandstrom v Montana, 442 US 510, supra; People v Smalls, 55 NY2d 407; People v Getch, 50 NY2d 456; People v Thomas, 50 NY2d 467). We find the error insufficient to require reversal of defendant’s conviction, moreover, because intent was not a contested issue in this trial (see Connecticut v Johnson, 460 US_, 103 S Ct 969; People v Smalls, supra, p 417; McGuinn v Crist, 657 F2d 1107, cert den 445 US 990; cf. People v Marr, 50 NY2d 456; People v Egan, 72 AD2d 239). The principal issue was the identity of the perpetrator. Counsel’s cross-examination of the People’s witness was devoted largely to that subject and defendant rested without presenting any evidence. In summation counsel argued almost exclusively that someone else could have stabbed the victim after defendant left his hotel room, and he reviewed the evidence in a light attempting to establish that theory. As evidence of intent, the People proved that the victim’s body was found in defendant’s hotel bed, that she had several broken teeth, one identified positively as a recent break because of the fresh blood, and that she had been stabbed 11 times in the face and chest and once in the back. The wounds were inflicted at the same time, four of the stab wounds to the chest were fatal and the victim expired within minutes after being stabbed. There was no evidence during the trial that defendant was intoxicated or unable to form the necessary intent. Indeed, it was the medical examiner’s testimony that death occurred after 4:45 a.m. on January 6 during a time period when the evidence established that defendant had been in the hotel room and long after the couple had left the bar. Thus the record contains overwhelming evidence that defendant was the perpetrator of the crime and that whoever stabbed O’Hare McMillon did so with the conscious objective of causing her death.

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

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

Order affirmed.