author: Per Curiam.

text:
    The People of the State of New York, Respondent, v Frederick Cunningham, Appellant.
    Argued December 13,1979;
    decided January 15, 1980

      POINTS OF COUNSEL

      Lewis R. Friedman, Herman Kaufman and Richard M. Asche for appellant.
    Mr. Cunningham’s two postarrest requests for counsel should have been honored; there was no valid waiver of Mr. Cunningham’s right to counsel under the State and Federal Constitutions. (Miranda v Arizona, 384 US 436; People v Masiello, 28 NY2d 287; People v Jackson, 41 NY2d 146; People v Rivers, 64 AD2d 834; People v Forte, 59 AD2d 724; Brewer v Williams, 430 US 387; People v Brown, 34 NY2d 658; People v Silberberg, 10 AD2d 688; People v Dropkin, 261 App Div 223.)

      John R. King, District Attorney (Bridget R. Rahilly of counsel), for respondent.
    Defendant waived his right to counsel and the County Court correctly denied defendant’s motion to suppress his statements. (People v Grant, 45 NY2d 366; People v Munlin, 45 NY2d 427; People v Byrne, 47 NY2d 117; People v Brown, 34 NY2d 658; People v Glass, 43 NY2d 283; People v Gruttola, 43 NY2d 116; People v Erwin, 42 NY2d 1064; People v Buxton, 44 NY2d 33; People v Clark, 45 NY2d 432; Cobbs v Robinson, 528 F2d 1331, 424 US 947.)
   OPINION OF THE COURT

Per Curiam.

We hold that once a suspect in custody requests the assistance of counsel, he may not be questioned further in the absence of an attorney. We intend by our holding to make it clear that an uncounseled waiver of a constitutional right will not be deemed voluntary if it is made after the right to counsel has been invoked.

Defendant Frederick Cunningham was tried and convicted of murder in the second degree as a result of his alleged participation in a gas station robbery in which a service attendant was shot to death. One of the most damaging pieces of evidence offered against him at trial was a statement he had given to the police on the night he was arrested. Defendant made a pretrial motion to suppress the statement as being involuntarily made, but the trial court denied the motion, finding that the statement was in all respects voluntary. Defendant’s conviction was subsequently affirmed, without opinion, by the Appellate Division. We reverse because we conclude that the trial court’s finding that the inculpatory statement was "voluntary” is not supported by the facts.

Defendant was apprehended at his home at about 7:00 p¡m. on the evening of March 7, 1975. He was taken to police headquarters and promptly given the Miranda warnings (Miranda v Arizona, 384 US 436). Although he initially agreed to speak with the police concerning his activities on the day of the robbery, he gave them no incriminating information at this point in the questioning.

Between the hours of 8:00 p.m. and 10:30 p.m., defendant spoke casually with the police officers, but there was no discussion of the robbery and shooting. Defendant was not handcuffed or placed under any unwarranted pressure during this period. At approximately 10:30 p.m., defendant was informed that he was formally being placed under arrest and was again given Miranda warnings. It was at this point that defendant told the police that he was unwilling to sign a waiver of his constitutional rights and that he wished to consult with an attorney. In response to this request, the police officers told defendant that he would be permitted to speak with an attorney after he had been "booked” and arraigned. The interview was then terminated, and defendant was formally "booked” and placed in a jail cell. The police made no effort to obtain an attorney for defendant while he was awaiting arraignment.

At about 1:30 a.m., defendant called police officers to his cell and told them that he wished to make a statement. When he was taken from his cell, given additional Miranda warnings and asked to sign a written waiver form, however, defendant once again balked, reiterating his desire to consult with a lawyer. As had occurred earlier in the evening, the police immediately cut off the questioning and started to return defendant to his jail cell. As they proceeded through the public waiting room on the way back to the cell, defendant spotted his wife, who had been sitting in the police station ever since her husband was arrested earlier that evening. Defendant asked for and received permission to confer with her in private for a few moments. When he emerged from the conversation, defendant indicated that he had changed his mind and was now willing to speak with the police without the aid of an attorney. Thereafter, defendant signed a preprinted form waiving his constitutional rights and made the inculpatory statements which he later sought to have suppressed.

In determining that these statements should have been suppressed, we recognize that the United States Supreme Court has not yet definitively described the conditions under which a defendant may subsequently waive his right to counsel after he has unequivocally asserted the right. Although the court has stated: "[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present” (Miranda v Arizona, 384 US 436, 474, supra), it has never firmly held that a suspect in custody may not change his mind and make an effective uncounseled waiver after he has invoked his right to counsel (see Michigan v Mosley, 423 US 96, 101, n 7; People v Grant, 45 NY2d 366, 373-375). As we recently noted in Grant (supra, at pp 375-376), the most that can be discerned from the Supreme Court’s decisions to date is that a waiver of a constitutional right will not be deemed "voluntary” unless the police have "scrupulously honored” the suspect’s prior assertion of his rights (see People v Dean, 47 NY2d 967; People v Clark, 45 NY2d 432; People v Munlin, 45 NY2d 427; People v Buxton, 44 NY2d 33).

Nonetheless, we find it unnecessary to anticipate how the Supreme Court would decide the present case under existing principles of Federal constitutional law, for we conclude that the issue presented here may be resolved by application of principles that are firmly rooted in our State’s constitutional and statutory guarantees of due process of law, the privilege against self incrimination and the right to the assistance of counsel (see People v Rogers, 48 NY2d 167; People v Settles, 46 NY2d 154; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Donovan, 13 NY2d 148). This court has consistently exercised the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceedings against him (e.g., People v Blake, 35 NY2d 331; People v Di Biasi, 7 NY2d 544). Our special solicitude for this fundamental right is based upon our belief that the presence of an attorney is the most effective means we have of minimizing the disadvantage at which an accused is placed when he is directly confronted with the awesome law enforcement machinery possessed by the State (People v Settles, supra, at p 161; People v Hobson, supra, at p 485). Recognizing that the preinterrogation warnings mandated by Miranda v Arizona (384 US 436, supra) cannot ensure that an accused will not "waive” an important constitutional right out of ignorance, confusion or fear, we have held that, in certain situations, the right to counsel in New York includes the right of an accused to have an attorney present while he is considering whether to waive his rights. Such a rule, we have stated, "breathes life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary” (People v Hobson, supra, at p 484).

The evolution of this aspect of the right to counsel has been traced in a number of opinions and scholarly articles (e.g., People v Rogers, 48 NY2d 167, supra; People v Settles, 46 NY2d 154, supra; People v Hobson, 39 NY2d 479, supra; 5 Fordham Urban LJ 401, 409; 52 St John’s L Rev 485, 505-511; 51 St John’s L Rev 201, 216-222). Basically, there have been two distinct lines of cases in which the right to counsel has been said to attach "indelibly” (see People v Settles, supra, at p 165) so that the right may not be waived outside the presence of the defendant’s attorney. In the first group of cases, we have said that an "indelible” right to counsel attaches upon the commencement of formal adversary proceedings (e.g., People v Settles, supra; People v Di Biasi, 7 NY2d 544, supra; cf. People v Coleman, 43 NY2d 222). Thus, after a suspect has been indicted (People v Waterman, 9 NY2d 561; see People v Settles, supra; People v Hobson, supra) or arraigned (People v Meyer, 11 NY2d 162; see, also, People v Bodie, 16 NY2d 275) or charged in a felony complaint (People v Samuels, 49 NY2d 218), he cannot make an effective waiver of his rights to remain silent and to have the assistance of counsel unless his attorney is present at the time of the waiver. This is so even in instances where the accused has neither retained nor requested an attorney (see People v Settles, supra).

In a second line of cases, we extended the "indelible” right to counsel to cases in which formal adversary proceedings have not yet been commenced, but we limited its application to suspects in custody who had already retained or been assigned counsel to represent them on the specific charge for which they were being held. This line of cases had its roots in our decision in People v Donovan (13 NY2d 148, supra), in which we held that principles of fundamental fairness are violated when a defendant in custody is interrogated "after he or the lawyer retained by him * * * has requested that they be allowed to confer together” (id., at p 153). We subsequently elaborated upon the Donovan principle, holding that an accused in custody need not demand or be denied access to his retained counsel in order for the rule to be applicable (People v Friedlander, 16 NY2d 248; People v Gunner, 15 NY2d 226). Finally, in People v Arthur (22 NY2d 325, supra), we dispelled any lingering doubts concerning the circumstances under which a represented defendant may make an effective waiver of the right to counsel when we held that the police may not obtain such a waiver in the absence of counsel once they know or have reason to know that an attorney has become involved in the case.

Although the rule articulated in the Donovan-Arthur line of cases at one time appeared to have fallen out of favor (see People v Robles, 27 NY2d 155, cert den 401 US 945), its continued vitality was unreservedly reaffirmed in People v Hobson (39 NY2d 479, supra). Indeed, we recently reiterated our commitment to the rule in People v Rogers (48 NY2d 167, supra), in which we rejected the distinction that had been developed in cases such as People v Taylor (27 NY2d 327) and People v Hetherington (27 NY2d 242) and held that the "indelible” right to counsel applies to a represented defendant in custody whether or not his attorney was retained or appointed to represent him on the specific charge for which he is being questioned (see, also, People v Ermo, 47 NY2d 863; People v Carl, 46 NY2d 806).

Our holding today represents but a logical extension of these principles. When an unrepresented individual who is being held in police custody invokes his right to the assistance of counsel as defendant did here, he is, in effect, "expressing] his own view that he is not competent to deal with the authorities without legal advice” (Michigan v Mosley, 423 US 96, 110, n 2, supra [White, J., concurring]). Such an individual has no less need for the protections afforded by counsel than does an individual who, by happenstance, has previously secured the services of an attorney. Indeed, it makes little sense to say that a represented defendant in custody cannot effectively waive his right to counsel in the absence of counsel, while at the same time holding that an individual who has not yet secured an attorney but who has nonetheless requested the services of one can subsequently make an informed and voluntary decision to waive his rights without the advice of a lawyer (see People v Settles, 46 NY2d 154, 164, supra). Such a rule would impose an undue disadvantage upon those defendants who either are not affluent enough to have had regular dealings with an attorney prior to being arrested or have not had previous occasion to enjoy the services of appointed counsel in an unrelated criminal matter.

We reject the notion that the right to have the assistance of counsel during custodial interrogation can be made to turn upon the fortuitous circumstance of the defendant having had an attorney prior to his arrest. Instead, we reaffirm our position that the right to counsel in this State includes the right of an accused to have the advice of counsel before making the decision to waive either his privilege against self incrimination or his right to the assistance of an attorney, so that once a defendant in custody invokes his right to counsel, all of the guarantees implicit in that right are brought into play, and a subsequent waiver of rights outside the presence of counsel cannot be given legal effect.

Accordingly, we find that the inculpatory statements made by defendant in the instant case should have been suppressed. On at least two occasions, defendant unequivocally stated his desire to consult with an attorney before speaking to the police about the crime for which he was being held in custody. Although he subsequently indicated his willingness to forego his right to counsel without prompting from the police, his decision cannot be deemed to represent an informed choice, since it was made in the absence of requested counsel. Having asserted his right to counsel, defendant was entitled to have the benefit of an attorney’s advice before deciding whether to waive that right, and any statement obtained in violation of that principle should have been suppressed.

For the foregoing reasons, the order of the Appellate Division should be reversed, the challenged statement suppressed and the case remitted for further proceedings on the indictment.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order reversed, etc.

      . Defendant contended at the suppression hearing that he began to suffer symptoms of drug withdrawal shortly after he arrived at the police station. The Trial Judge, however, made a factual determination that whatever discomfort defendant was experiencing had not affected his capacity to make an informed and voluntary decision to waive his rights to remain silent and to have the advice of counsel.

      . The inculpatory statements at issue in this case were made in the course of an extended discussion between defendant and the police and therefore cannot be considered to have been genuinely "spontaneous” (People v Maerling, 46 NY2d 289). We note that our holding today does not affect the principle established in People v Kaye (25 NY2d 139) that a genuinely "spontaneous”, blurted-out admission need not be suppressed, even where the admission is made in the absence of retained or appointed counsel (see People v Lynes 49 NY2d 286).


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    In the Matter of Dorothy D. (Anonymous), Respondent. New York City Probation Department, Appellant.
    Argued December 10, 1979;
    decided January 10, 1980

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Maureen F. Brennan and Francis F. Caputo of counsel), for appellant.
    I. The Family Court does not have power to direct eradication of its records. (Matter of Richard S. v City of New York, 32 NY2d 592; City of Rye v Metropolitan Transp. Auth., 24 NY2d 627; Matter of Donald J., 37 AD2d 717; Matter of Molineux v Collins, 177 NY 395; Matter of Peabody v Francke, 4. AD2d 962, mot for lv to app den sub nom. Matter of Peabody v Gulotta [Francke], 4 NY2d 673, 357 US 941, 358 US 859; Matter of Antonio P., 88 Misc 2d 437, 40 NY2d 960; Palmer v New York State Dept, of Mental Hygiene, 44 NY2d 958.) II. Assuming the Family Court had power to direct expunction of its own records, its refusal to grant respondent’s motion for such relief was proper.

      Barbara H. Dildine, William E. Hellerstein and Charles Schinitsky for respondent.
    I. The court below properly decided that the Family Court Judge abused his discretion by refusing to expunge court records concerning a baseless complaint which was filed against respondent and later withdrawn. (Matter of Hynes v Karassik, 47 NY2d 659; Matter of Henry v Looney, 65 Misc 2d 759; Matter of Richard S. v City of New York, 32 NY2d 592; Matter of Antonio P., 88 Misc 2d 437, 40 NY2d 960; Matter of Smith, 63 Misc 2d 198; Matter of Terrance J., 78 Misc 2d 437; Matter of Manigo v New York City Housing Auth., 51 Misc 2d 829, 27 AD2d 803, 389 US 1008; Matter of Anthony H, 77 Misc 2d 406; Bilick v Dudley, 356 F Supp 945.) II. Failure to expunge the court records of this innocent respondent, who was never arrested, violates her constitutional right to privacy and her State and Federal due process rights. (Griswold v Connecticut, 381 US 479; Matter of Henry v Looney, 65 Misc 2d 759; United States v Kalish, 271 F Supp 968; Boyd v United States, 116 US 616; Matter of Smith, 63 Misc 2d 198; Matter of Terrance J., 78 Misc 2d 437.)
   OPINION OF THE COURT

Wachtler, J.

The issue in this case is whether the Family Court should have expunged from its records a juvenile delinquency petition brought against a blameless child by a neighbor. We agree with the Appellate Division that, in the circumstances of this case, the court’s failure to do so was an abuse of discretion as a matter of law.

This matter arose when the child’s mother filed a criminal complaint against a neighbor. In response the neighbor charged that the child, then aged 12, was a juvenile delinquent. At the intake level of Family Court, before the juvenile delinquency petition was formally filed, the neighbor offered to withdraw the petition if the criminal complaint was withdrawn. The mother refused and the petition was filed; however, when the child’s mother later withdrew the complaint, the petition lodged by the neighbor was withdrawn. The child through her Law Guardian then moved in Family Court for an order expunging from the court records all mention of her identity or the incident and for the sealing and separate filing of the petition.

The Family Court denied the motion, but granted permission to renew when the child reached the age of 16. Grounds for denial of the motion were: (1) the fact that a brother of the child had been previously arrested; (2) the existence of certain information in the probation folder about the parent; and (3) the need for complete information about the family in the event of a future adjudication.

The Law Guardian argues that the harm generated by a court record may penalize the innocent by thwarting their career ambitions. It is contended that employers generally regard a record of complaint as a judgment of guilt with the result that applicants with court records are often automatically disqualified.

That the very existence of such records, despite provisions for confidentiality, may constitute a substantial impediment to entry into institutions of higher learning, government or private employment, the armed services, or the professions, cannot be seriously questioned. For this reason it would be antithetical to the purpose of the Family Court Act to maintain records which would not benefit society and would result in bringing unwarranted discrimination to a child’s future (Matter of Richard S. v City of New York, 32 NY2d 592, 595-596).

The inherent power of courts to control the records of their own proceedings has long been recognized in New York (Barker v Binninger, 14 NY 270, 278) and this power does not depend on statutory grant but exists independently and "inheres in the very constitution of the court” (Vanderbilt v Schreyer, 81 NY 646, 648). This power has been exercised to seal court records so as to preserve confidentiality in sensitive proceedings (Matter of Richard S. v City of New York, supra) as well as to expunge records relating to prosecutions where there was no conviction (Matter of Henry v Looney, 65 Misc 2d 759, 762-763).

Our court has made clear, and the Legislature has implicitly recognized, that this power is possessed by the Family Court. "The Family Court has, of course, inherent power over its own records” (Matter of Richard S. v City of New York, 32 NY2d 592, 595-596, supra). That decision noted, however, that the court’s inherent power over its own records does not extend to the records of executive agencies not normally subject to its direction, particularly those of the police (Matter of Weisberg v Police Dept, of Vil. of Lynbrook, 46 Misc 2d 846 [Meyer, J.]). Thus a request for expunction of both court and police records was denied by this court, in part for want of authority: "The subject matter of this proceeding is one of legislative concern” (Matter of Richard S. v City of New York, supra, p 595).

Section 753-b (subd 2) of the Family Court Act (L 1977, ch 447) enacted subsequent to our decision in Matter of Richard S. (supra), specified certain instances in which the Family Court would have power over police records. In extending to the court authority over police records, while saying nothing of the court’s power over its own records, the Legislature tacitly acknowledged the Family Court’s inherent power, including the power to expunge.

Of course the circumstances of cases may vary so greatly that the exercise of that power necessarily must be consigned to the sound discretion of the court of first instance, reviewable only where there is an abuse of that discretion as a matter of law. And the power to expunge should not be indiscriminately employed, particularly where, for example the adjudication which terminates the arrest is for reasons not consistent with complete innocence (see Matter of Henry v Looney, supra).

However, on the facts of this case, where it is apparent that the petition was brought solely for spite against the parent, and the record is barren of any facts on which it could be properly founded, maintenance of a record of it, even a nominally sealed record, can serve no legitimate societal purpose, and may have unfortunate and undeserved consequences for the future of the individual concerned. We find ourselves unpersuaded that such "information” could have any legitimate use to the Family Court or anyone else in the event of a future proceeding because it is entirely without probative value. We are, moreover, troubled by the suggestion that the record of this sorry incident in some way acquired potential value by reason of the prior arrest of a sibling of the accused. Guilt by association or consanguinity has no place in our jurisprudence.

In sum, there being no legitimate purpose for preserving these records we conclude that the Family Court abused its discretion as a matter of law in denying the motion to expunge. The order of the Appellate Division, therefore, should be affirmed.

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

Order affirmed, without costs.


text:
    The People of the State of New York, Respondent, v Willie M. Samuels, Appellant.
    Argued December 13, 1979;
    decided January 15, 1980

      POINTS OF COUNSEL

      Shirley Werner, Matthew Muraskin and Michael J. Obus for appellant.
    I. Appellant’s uncounseled statement elicited from him subsequent to the filing of a felony complaint and the issuance of a warrant denied him his right to be free from testimonial compulsion and his right to counsel. (Massiah v United States, 377 US 201; People v Colon, 27 AD2d 748; People v Santmyer, 20 AD2d 960; People v Fleischmann, 43 Misc 2d 200; Spano v New York, 360 US 315; Brewer v Williams, 430 US 387; Kirby v Blinois, 406 US 682; People v Di Biasi, 7 NY2d 544; People v Cole, 41 NY2d 944; People v Napolitano, 62 AD2d 955.) II. The trial court erred in failing to suppress appellant’s postarrest confession elicited from him after he indicated that he wished counsel. (Miranda v Arizona, 384 US 436; Michigan v Mosley, 423 US 96; People v Grant,
      45 NY2d 366; People v Buxton, 44 NY2d 33; People v Jackson, 41 NY2d 146; People v Valerius, 31 NY2d 51; People v Huntley, 15 NY2d 72; People v Edney, 47 AD2d 906, 39 NY2d 620; People v Leonti, 18 NY2d 384; People v Clark, 45 NY2d 432.)

      Denis Dillon, District Attorney (William C. Donnino, Anthony J. Girese and Scott N. Fein of counsel), for respondent.
    Defendant’s confession was not taken in derogation of his right to counsel. (People v Johnson, 40 NY2d 882; People v Leonti, 18 NY2d 384; People v Pinzon, 44 NY2d 458; People v Buston, 44 NY2d 33; People v Hobson, 39 NY2d 479; People v Settles, 46 NY2d 154; People v Ressler, 24 AD2d 7, 17 NY2d 174; People v Stockford, 24 NY2d 146; People v Coleman, 43 NY2d 222; People v Waterman, 9 NY2d 561.)
   OPINION OF THE COURT

Wachtler, J.

On this appeal the defendant seeks to suppress oral and written statements which he claims were obtained in violation of his right to counsel. The question is whether a defendant can waive his rights in the absence of counsel after a felony complaint has been filed in court.

On September 4, 1975 two men robbed a store in Nassau County. Several days later the investigating officer filed a felony complaint in the District Court charging the defendant with the crime. Based on the complaint an arrest warrant was issued. On October 5, 1975 the police arrested the defendant at his mother’s home. Prior to bringing the defendant before the court for arraignment, the police transported him to the local precinct "for processing”. At the police station he was advised of his rights and questioned about the robbery in the absence of counsel. He made oral and written statements admitting participation in the robbery but claiming that he had been coerced into assisting the robber.

The defendant made a pretrial motion to suppress the statements on the ground that he had not been advised of his rights and had been "forced” by the police into making the statements. After a hearing the trial court found that the facts did not support these contentions. The motion was denied. Subsequently the defendant went to trial and was found guilty of the robbery.

On appeal to the Appellate Division the defendant argued that the confession should have been suppressed because it was obtained in the absence of counsel after a felony complaint had been filed in court. He urged that his right to counsel attached when the felony complaint was filed and that he could not thereafter waive his rights without the assistance of counsel. The Appellate Division aflirmed, without opinion.

On appeal to this court, the defendant presents the same issue argued before the Appellate Division. The prosecutor notes that this point was not raised at the trial court and urges that it therefore was not preserved for appellate review. It is settled, however, that a claim that a defendant was deprived of his right to counsel during police questioning may be raised for the first time on appeal (see, e.g., People v Arthur, 22 NY2d 325, 329; People v Ermo, 47 NY2d 863; People v Dean, Al NY2d 967).

The defendant is entitled to counsel at all critical stages of the criminal prosecution (People v Settles, 46 NY2d 154, 165). The right to counsel attaches, of course, once the criminal action has been commenced (see, e.g., People v Blake, 35 NY2d 331, 339-340). But it may also attach at an earlier stage if there has been significant judicial activity. Thus, for instance, a court order permitting the police to bring the defendant to the scene of the crime (People v Sugden, 35 NY2d 453, 461) or directing that he appear in a lineup (People v Coleman, 43 NY2d 222) may be sufficient to trigger the right to counsel even though the criminal action may not have formally commenced.

By statute a criminal action now commences with the filing of an accusatory instrument (CPL 1.20, subd 17), which includes a felony complaint (CPL 1.20, subds 1, 8). Thus in this case the defendant’s right to counsel attached when the felony complaint was filed and the arrest warrant issued (cf. People v Blake, 35 NY2d 331, 339, supra; People v Sugden, 35 NY2d 453, 461, supra). This represents a departure from prior law which traditionally regarded arraignment on the warrant as the " 'first stage of the criminal proceeding’ ” (People v Stock-ford, 24 NY2d 146, 149). We have previously indicated that this rule became obsolete when the CPL was adopted (People v Blake, supra, p 339).

The question then is whether the right, which attached upon the filing of the felony complaint, could be waived in the absence of counsel. In People v Coleman (supra), where the right to counsel was triggered by a court order directing the defendant to appear in a lineup, we held that a waiver in the absence of counsel was possible. There, however, the crime was still under investigation and the defendant had not been formally charged. Later in People v Settles (supra), where the defendant had been indicted for the crime, we held that the right to counsel had "indelibly attached” and could only be waived in the presence of a lawyer.

The defendant claims that Settles is controlling here because the filing of a felony complaint, like the filing of an indictment, formally commences the criminal action. The District Attorney notes, however, that unlike an indictment, a felony complaint may not serve as a basis for a prosecution (CPL 1.20, subd 8). It must be superseded by an indictment or a superior court information before the defendant may be convicted of a felony charge by plea or verdict (CPL 10.20, subd 1, par [a]; 210.15). He claims that this often requires additional investigation and proof and that in this case, in fact, the police filed the felony complaint simply to obtain an arrest warrant in order to complete the investigation by questioning the defendant in custody. Thus, he argues, this case is more analogous to People v Coleman (43 NY2d 222, supra) because the felony complaint and the arrest warrant, like the order for the lineup in that case, merely served to further a pending investigation.

A felony complaint is not an application for an investigatory order. Indeed if the court issues an arrest warrant on the basis of the complaint, it must direct that the defendant be promptly brought before the court for arraignment (CPL 120.10, subd 1) and not to the police station for questioning. "The sole function of a warrant of arrest is to achieve a defendant’s court appearance in a criminal action for the purpose of arraignment upon the accusatory instrument by which such action was commenced” (CPL 120.10, subd 1).

Thus, like an indictment, a felony complaint is a formal accusation which the defendant must answer in court. The police of course may continue to investigate after the filing of the felony complaint as they may after an indictment has been returned. But once the accusation has been made in court the case is no longer merely a subject of investigation. It is a matter in litigation and, we have noted, this "is precisely the juncture at which legal advice is crucial and a well-recognized principle in civil litigation serves as an appropriate analogy. Once a matter is the subject of a legal controversy any discussions relating thereto should be conducted by counsel: at that point the parties are in no position to safeguard their rights” (People v Settles, 46 NY2d 154, 163-164, supra).

The fact that the defendant may not actually be tried on the felony complaint is of no consequence. A defendant who is called to answer a felony charge in court has a need and a right of counsel at all preliminary proceedings, including arraignment on a felony complaint (CPL 180.10, subd 3). The police, as noted, must see that he is promptly arraigned so that he may be informed of the pending charge and given an opportunity to consult counsel, assigned if necessary, without delay (People v Alex, 265 NY 192, 195; People v Mummiani, 258 NY 394, 399-400). And when "all that stands between the entry of counsel into the proceedings and nonrepresentation is the ministerial act of arraignment, there may be no waiver of the right to counsel unless an attorney is present” (People v Settles, 46 NY2d 154, 166, supra).

In sum, the statements obtained in the absence of . counsel after the filing of the felony complaint should be suppressed. The order of the Appellate Division affirming the conviction should, therefore, be reversed and a new trial ordered.

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

Order reversed, statements obtained in the absence of counsel after the filing of the felony complaint suppressed, and a new trial ordered.


author: Jones, J.

text:
    Anne Solnick et al., Doing Business as Dover Nursing Home, Respondents, v Robert P. Whalen, as Commissioner of Health of the State of New York, et al., Appellants.
    Argued December 12,1979;
    decided January 8, 1980

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (William J. Kogan, Shirley Adelson Siegel and W. Alexander Melbardis of counsel), for appellants.
    A six-year Statute of Limitations in Medicaid rate-making cases places an undue burden on the State regulatory agencies charged with setting Medicaid reimbursement rates. (Mundy v Nassau County Civ. Serv. Comm., 44 NY2d 352; Matter of Martin v Ronan, 57 AD2d 514, 44 NY2d 374; Kobbe v McNamara, 5 Misc 2d 741.)

      Cornelius D. Murray and Robert E. Ganz for respondents.
    I. The present action is not an article 78 proceeding and, therefore, is not governed by a four-month Statute of Limitations. (Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400; Matter of Broadacres Skilled Nursing Home v Ingraham, 51 AD2d 243; Matter of White Plains Nursing Home v Whalen, 53 AD2d 926, 42 NY2d 838; Matter of Park Crescent Nursing Home v Whalen, 55 AD2d 801; Matter of Bradley v Whalen, 58 AD2d 664; Mundy v Nassau County Civ. Serv. Comm., 44 NY2d 352; Matter of Martin v Ronan, 44 NY2d 374.) II. This is an action to prevent the taking of property without due process of law and is, therefore, not subject to a four-month Statute of Limitations. (Matter of White Plains Nursing Home v Whalen, 42 NY2d 838; Lutheran Church in Amer. v City of New York, 27 AD2d 237; Rock Hill Sewerage Disposal Corp. v Town of Thompson, 27 AD2d 626; Vernon Park Realty v City of Mount Vernon, 307 NY 493; Matter of First Nat. City Bank v City of New York Fin. Admin., 36 NY2d 87; Matter of Foy v Schecter, 1 NY2d 604; Schact v City of New York, 79 Misc 2d 457.) III. Even under the "next nearest context” standard, this action would not properly be subject to an article 78 four-month Statute of Limitations. (Briarcliff Haven v Department of Human Resources of State of Ga., 403 F Supp 1355; Matter of Kaye v Whalen, 44 NY2d 754; Luckenbach S. S. Co. v United States, 312 F2d 545; Johnson v Albany & Susquehanna R. R. Co., 54 NY 416.) IV. Equity and the adoption of subsequent regulations by the State dictate that plaintiffs’ action should not be dismissed.
   OPINION OF THE COURT

Jones, J.

A declaratory judgment action to challenge a determination adjusting Medicaid reimbursement rates for an individual nursing home facility for lack of procedural due process is time-barred when it is brought more than four months after notification of the rejection of its appeal from the audit on which the adjustments were based and more than four months after notification of its adjusted reimbursement rates.

Plaintiffs are owners and operators of the Dover Nursing Home, a facility which renders care and treatment to sick and elderly patients for which reimbursement is provided under the Federal Medicaid program (US Code, tit 42, § 1396 et seq.). In this State the program is administered by the New York State Department of Social Services, and the rate of reimbursement to eligible nursing homes is determined and certified by the Commissioner of Health and approved by the Director of the Budget pursuant to section 2807 of the Public Health Law predicated in part on costs reported by the facilities. Incident to rate determination, periodic audits of participating nursing homes are conducted by the Department of Health.

During 1975 the department conducted such an audit of the Dover Nursing Home for the year 1969, the reported costs for which year had served as the basis for rates of reimbursement which had been paid for services rendered in portions of 1970 and 1971. The audit report dated December 4, 1975, a copy of which was sent to the nursing home, disallowed $17,987 of expenses that had been reported by the home. On December 22, 1975 by letter addressed to the Department of Health, the facility appealed $9,006 of disallowed items and also sought an additional allowance for commercial rent tax paid. On May 20, 1976 the department’s rate review board considered the nursing home’s objections but left undisturbed the report of the audit with respect to the disputed items, allowing only the additional commercial rent tax item when verified. By letter dated June 1, 1976 plaintiffs were notified that the Commissioner of Health had determined, after recommendation by the review board, that the auditor’s judgment should be upheld with the additional allowance for the commercial rent tax. Thereafter, on June 25, 1976, a letter was sent to the nursing home setting forth downward adjustments of reimbursement rates for 1970-1971 based on the 1969 audit, accompanied by advice that the State and local Social Service Departments were being notified of the rate revisions.

On January 6, 1977 plaintiffs commenced the present action for a declaration that any attempted reimbursement rate reduction or recoupment of alleged overpayments as a result of the 1969 audit was illegal by reason of a lack of due process attending the procedure by which the rate reductions had been determined and for an order enjoining recoupment of alleged overpayments of reimbursement (by withholding from current reimbursement) without plaintiffs’ having "a full adversary due process hearing before an impartial trier of fact”. Defendants’ answer pleaded an affirmative defense of Statute of Limitations.

Special Term, holding untenable the Statute of Limitations defense, granted judgment favorable to plaintiffs declaring the challenged reimbursement rate adjustments void, enjoining collection of recoupment, and remanding the matter to the Commissioner of Health for a due process hearing on plaintiffs’ challenges to the rate reductions. The Appellate Division, concurring in Special Term’s holding that the action was not time-barred, modified the lower court’s order by deleting the declaration of invalidity and the injunction against recoupment and amending the remand provision to direct that a hearing be held by the Commissioner of Health within 90 days of the effective date of the prospective Medicaid rate adjusted to recoup overpayment resulting from the 1969 audit.

We reverse and dismiss the action on the ground that it was instituted beyond the time within which it could properly be brought.

In rejecting defendants’ claim of untimeliness the Appellate Division applied the six-year Statute of Limitations prescribed by CPLR 213 (subd 1) for "an action for which no limitation is specifically prescribed by law”, and concluded that plaintiffs’ action was timely, having been instituted less than seven months after notification on June 25, 1976 of the reimbursement rate adjustments made pursuant to the 1969 audit and only slightly more than six months after notification on June 1, 1976 that the Commissioner of Health had rejected their appeal of the audit report; it held inapplicable the four-month limitation period provided by CPLR 217 for proceedings against a body or officer, which defendants contended barred the action.

The critical question is which Statute of Limitations determines the time within which this declaratory judgment action must have been brought. An examination of CPLR article 2— the article devoted to "Limitations of Time” — discloses that no general period of limitation is specifically prescribed therein for a declaratory judgment action; nor is one to be found in any other statutory provision. That is not to say however that the six-year catch-all limitation of CPLR 213 (subd 1) therefore automatically or necessarily governs all such actions. The declaratory judgment action, a fairly new entrant on the civil procedure field of New York, is peculiarly different from the actions listed in article 2 and there assigned limitation periods, in that the latter actions seeking coercive relief are described (except in the catch-all provision of CPLR 213, subd 1) by reference to the gravamen of the claim or the status of the defendant party. No such description attaches genetically to actions for declaratory relief instituted pursuant to CPLR 3001; it is the nature of the relief sought — i.e., declaratory as distinguished from coercive — rather than its substance, which gives the action its identity.

In order to determine therefore whether there is in fact a limitation prescribed by law for a particular declaratory judgment action it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought — factors we have previously identified as pertinent to selection of the applicable Statute of Limitations (Sears, Roebuck & Co. v Eneo Assoc., 43 NY2d 389, 396). If that examination reveals that the rights of the parties sought to be stabilized in the action for declaratory relief are, or have been, open to resolution through a form of proceeding for which a specific limitation period is statutorily provided, then that period limits the time for commencement of the declaratory judgment action. In that event there is a limitation specifically prescribed by law and the catch-all provision of CPLR 213 (subd 1) is not applicable. If the period for invoking the other procedural vehicle for relief has expired before the institution of the action for declaratory relief, the latter action also is barred. If the alternative action or proceeding is not time-barred, however — as will often be the case in light of the fact that declaratory judgment actions are frequently brought before there has been conduct which might give rise to a right to remedial or coercive relief — then a challenge of untimeliness addressed to the declaratory judgment action must fail. A salutary result of the application of the limitation period appropriate to the other form of judicial proceeding will be to preclude resort by a dilatory litigant to the declaratory remedy for the purpose of escaping a bar of time which has outlawed the other procedure for redress (see Mundy v Nassau County Civ. Serv. Comm., 44 NY2d 352, 358). If no other form of proceeding exists for the resolution of the claims tendered in the declaratory judgment action, the six-year limitation of CPLR 213 (subd 1) will then be applicable.

The same consequence would follow from the application of what has been labeled the "next nearest context standard”— "Inquire into the kind of action that would have been most likely to raise the same substantive issues had there been no declaratory action available, and determine what the statute of limitations would have been on such next-nearest action. Then just apply that statute of limitations to the declaratory action, not only as to what the basic period is, but as to other relevant matters, such as moment of accrual (which starts the statute running) and the like.” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3001, C3001:18, pp 369-370; cf. 1 Weinstein-Korn-Miller, NY Civ Prac, par 213.02, p 2-229.)

The next necessary inquiry must therefore be whether there was some other form of judicial proceeding — barred by its limitation period at the time this action was commenced— which was available to plaintiffs for resolution of their challenge to the downward revision of their reimbursement ratés. Defendants correctly identify such a vehicle as a proceeding instituted pursuant to CPLR article 78 to review the determination made by the State agency. The fact that the challenge mounted to defendants’ determinations is stated in terms of a constitutional objection (denial of due process hearing rights) does not serve to make unavailable an article 78 proceeding— the customary procedural vehicle for review of administrative determinations. That procedure was used without objection for the assertion of due process challenges to regulations for computation of hospital reimbursement rates in Matter of Jewish Mem. Hosp. v Whalen (47 NY2d 331). In the case now before us the asserted lack of due process in the determination of the rate of reimbursement for plaintiffs was available as a question for review in such a proceeding under the third question authorized by CPLR 7803 — whether the "determination was made in violation of lawful procedure [or] was affected by an error of law”.

Plaintiffs’ reliance on Matter of Lakeland Water Dist. v Onondaga County Water Auth. (24 NY2d 400, 407) as authority for the proposition that "an order of an administrative agency fixing rates is deemed a legislative act” reviewable only in an action for a declaratory judgment, not in a proceeding under article 78, and that, consequently, an article 78 proceeding was not an alternative available to them in which to assert their challenges to the reimbursement rate adjustments fixed by defendants, is misplaced. Neither Lakeland Water Dist. nor the cases following and applying it in our court have involved situations such as the present in which the attack has been addressed to individualized rates established for a particular litigant. In Lakeland Water Dist. the challenge was to a resolution by the County Water Authority adopting an across-the-board schedule which increased rates and charges of the authority applicable to all its customers. Thereafter, the proscription against use of article 78 proceedings for challenges to the constitutionality of general legislative acts was restated when such attacks were launched on a zoning ordinance (Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449), on a section of the Real Property Law (Matter of Gold v Lomenzo, 29 NY2d 468), on a provision of the New York City Rent Stabilization Law (Matter of Kovarsky v Housing & Dev. Admin, of City of N. Y., 31 NY2d 184) and on a section of the Highway Law (Matter of Du Bois v Town Bd. of Town of New Paltz, 35 NY2d 617). In each of the cited instances the subject of the claim of unconstitutionality, for which an article 78 proceeding was held to be an inappropriate remedy, was a rate increase, ordinance, local law or statute of general applicability (truly to be regarded as "legislative” action); in none was the object of attack an ad hoc determination of an individual party’s right of reimbursement —a determination more accurately classified as administrative rather than legislative.

This result is consonant with sound public policy, particularly where the action sought to be reviewed is that of a regulatory governmental agency. "The reason for the short statute is the strong policy, vital to the conduct of certain kinds of governmental affairs, that the operation of government not be trammeled by stale litigation and stale determinations”. (Mundy v Nassau County Civ. Serv. Comm., 44 NY2d 352, 359, Breitel, Ch. J., dissenting, supra.) Of special significance in the present instance is the impact on State and local budgetary planning which application of a six-year Statute of Limitations would introduce. One can visualize the fiscal complexity which would ensue if financial planning for a program with the broad ramifications of Medicaid were subjected to individual challenges for a period of up to six years. Moreover, one would expect that the financial planning of the providers of services as well would be benefited by prompt resolution of controversies with respect to final reimbursement rate determinations.

Finally, there remains the question whether the article 78 proceeding that was available to plaintiffs to review the rate adjustments following the 1969 audit would have been time-barred when the present declaratory judgment action was commenced on January 6, 1977. It is clear that it would have been. Whether the right to institute such a proceeding be deemed to have accrued on June 1, 1976 when notice was given of the department’s rejection of the nursing home’s appeal from the 1969 audit or on June 25, 1976 when plaintiffs were notified of the actual reimbursement rate adjustments applicable as a result of the audit, more than the four months permitted by CPLR 217 for the institution of an article 78 proceeding had elapsed by January 6, 1977. It follows, from what has been said, that the declaratory judgment action then commenced was untimely.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the action dismissed.

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

Order reversed, etc.

      . The declaratory judgment first became available in this State with the enactment of section 473 of the Civil Practice Act in 1921.

      . The respondents in that case contended that the proceeding was barred by the four-month Statute of Limitations. We held, however, that the proceeding had been instituted within four months of its accrual.

      . We note that the Appellate Division, Third Department, in cases instituted as article 78 proceedings to review individual Medicaid reimbursement rates, relying on the Lakeland Water Dist. case, has stated that an article 78 proceeding was not the proper vehicle, and pursuant to CPLR 103 (subd [c]) has converted the litigation to declaratory judgment actions (e.g., Matter of Broadacres Skilled Nursing Facility v Ingraham, 51 AD2d 243; Matter of White Plains Nursing Home v Whalen, 53 AD2d 926, affd 42 NY2d 838, mot for rearg den 42 NY2d 1015, cert den 434 US 1066; Matter of Park Crescent Nursing Home v Whalen, 55 AD2d 801, app dsmd 42 NY2d 975). In Matter of Birchwood Nursing Home v Whalen (70 AD2d 1020) the statement was again made but the court awarded what it regarded as proper article 78 relief, different from that requested by the petitioner. In an earlier similar proceeding the court had declined to determine the proper character of litigation to challenge individual nursing home reimbursement rates, noting both the Lakeland Water Dist. case and the fact that the Court of Appeals had only recently reviewed a nursing home rate determination regulation in an article 78 proceeding in Matter of Sigety v Ingraham (29 NY2d 110), and entertained the suit "whether it be an article 78 proceeding or, in the alternative, an action for declaratory judgment” (Matter of Severino v Ingraham, 45 AD2d 564, 565). The article 78 — declaratory judgment issue has never heretofore been presented for review in our court in the context of a challenge to an individual reimbursement rate. We observe that in none of the cases in the Third Department does it appear that a limitations problem was presented, nor does it appear that any practical consequence turned on whether the action was treated as an article 78 proceeding or as a declaratory judgment action.


author: Jones, J. Fuchsberg, J. Wachtler, J.

text:
    In the Matter of Westinghouse Electric Corp. et al., Respondents, v State Division of Human Rights et al., Appellants.
    Argued December 13,1979;
    decided January 10, 1980

      POINTS OF COUNSEL

      Jerome P. Vanora, Ann Thacher Anderson, Harry Starr and Elaine Berger for appellants.
    I. The construction of the term "disability” in the Human Rights Law, as interpreted or understood by the division is reasonable and consistent with the statutory purpose and legislative intent, and therefore, is to be accepted by the court. (Matter of Morris v County Bd. of Assessors of Nassau County, 35 NY2d 624; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of Hirschfeld v Feuer, 35 NY2d 176; Matter of Howard v Wyman, 28 NY2d 434; Matter of Albano v Kirby, 36 NY2d 526.) II. The commissioner’s determination that Westinghouse discriminated against Mr. Tenbroeck because of his disability is supported by substantial evidence on the whole record and should not be disturbed. (Green v McDonnell Douglas Corp., 463 F2d 337; Witherspoon v Mercury Frgt. Lines, 457 F2d 496; New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, 29 NY2d 921; Matter of Guardian Capital Corp. v New York State Div. of Human Rights, 46 AD2d 832; New York Inst, of Technology

      v State Div. of Human Rights, 48 AD2d 132, 40 NY2d 316; Matter of Sowa v Looney, 23 NY2d 329; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Burke v Bromberger, 300 NY 248; State Div. of Human Rights v Columbia Univ. in City of N. Y., 39 NY2d 612.)

      James L. Burke for respondents.
    I. This appeal is a purposeful attempt that employers must employ an applicant, otherwise employable, who, at the time of application suffers from a physical disability that will not then prevent job performance, but whose physical disability will become worse because of job performance. II. The action of the employer was not discriminatory within the legislative intent. (Griggs v Duke Power Co., 401 US 424; Matter of Page Airways of Albany v New York State Div. of Human Rights, 39 NY2d 877; Matter of Eastern Greyhound Lines Div. of Greyhound Lines v New York State Div. of Human Rights, 27 NY2d 279.)
   OPINION OF THE COURT

Jones, J.

Under the former provisions of the Human Rights Law it was not an unlawful discriminatory practice to deny an applicant employment because of a physical disability which was related to the ability to engage in the activities of the job or occupation, even though it was not demonstrated that the degree or extent of the disability of the particular applicant was such as would interfere with his ability to engage in such activities.

The complainant, an 18-year-old high school student, is the son of parents both of whom were employed by Westinghouse Electric Corporation. As such he was entitled to and in May, 1975 did apply for summer employment as a general laborer in a special employment program offered to dependent children of Westinghouse employees. All applicants for the program were required to submit to a pre-employment physical examination. When complainant was examined it appeared that he then was, and at various times in the past had been, affected with dermatitis, a rash located primarily in the femoral or intertriginous region and secondarily on parts of his body and limbs. Complainant was rejected for employment because in the opinion of the examining physician exposure to the chemical elements present in the Westinghouse plant would so exacerbate the dermatitis as to disable complainant from performing the duties of his desired employment.

In consequence of his rejection, complainant filed a complaint with the State Division of Human Rights, charging that Westinghouse and its personnel director had unlawfully discriminated against him because of a physical disability. After a finding of probable cause and a subsequent hearing, the State division determined that Westinghouse and its personnel director had indeed refused to employ complainant because of a physical disability (dermatitis) in contravention of the statutory proscription. The State Human Rights Appeal Board affirmed the division’s decision, ordered respondents to pay complainant a sum of money equal to what he would have earned for the period May 22 to August 15, 1975 had he not been rejected for employment and imposed other sanctions.

The employer and personnel director thereupon instituted the present proceeding under section 298 of the Executive Law to annul the decision and order of the appeal board. The Appellate Division granted the petition and annulled the board’s determination. We now affirm that disposition.

This case is governed by the provisions of subdivision 21 of section 292 of the Executive Law as they existed prior to the amendment effected by chapter 594 of the Laws of 1979. Under those provisions the term "disability” was "limited to physical, mental or medical conditions which are unrelated to the ability to engage in the activities involved in the job or occupation which a person claiming protection of this article shall be seeking”. This definition excluded as a predicate for a finding of an unlawful discriminatory practice because of disability any impairment of a general character which was "related” to the ability to engage in the activities of the job or occupation. For such exclusion it was not then necessary for the employer to go further and to establish that the degree or extent of impairment suffered by the individual complainant was such as to prevent him from performing in a reasonable manner the activities involved in the job or occupation sought (Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 59 AD2d 449, affd 46 NY2d 950; State Div. of Human Rights [Ghee] v County of Monroe, 48 NY2d 727). Thus, in Averill Park, to remove the failure to employ because of physical disability from the statutory proscription against discrimination it was sufficient to show that the prospective school bus driver had a loss of hearing; it was not necessary to show that the extent of his loss of hearing was such as to impair his ability to operate school buses. Similarly, in Ghee, a finding of unlawful disability discrimination was precluded because the complainant suffered a physical impairment of a kind that would affect the performance of duties of a maintenance mechanic (shortened right femur and inability to flex his right knee); it was irrelevant that there was no evidence that this physical condition would in fact interfere with his ability to perform the duties to be assigned to him.

In consequence of the decision in Averill Park, the Legislature promptly amended the statute to narrow the statutory exclusion, substituting for the prior, general relatedness standard an individualized test — for exemption the disability must be shown to be such as would "prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought”. (L 1979, ch 594, eff July 10, 1979.) We held in Ghee that this amendment was not to be given retroactive effect.

Applying the former standard to the present case, as we must, the evidence in this record is uncontroverted that the dermatitis suffered by complainant was a physical impairment resulting from physiological or anatomical conditions, was demonstrable by medically accepted clinical diagnostic techniques, and in an exacerbated state would interfere with the performance of duties in the employment sought by complainant. Again, it is irrelevant that it was not shown that at the time complainant applied for employment the condition had progressed to the point where there was such interference. We need not and do not consider what would be the proper disposition in this case were the individualized standard of the present statute to be applied.

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

Fuchsberg, J.

(concurring). As the court today reiterates, and as it has heretofore decided, under subdivision 21 of section 292 of the Executive Law as it existed when this case arose, the question whether an individual complainant’s impairment to any degree or extent prevents performance of a job is not dispositive of his or her entitlement to the protection accorded a disabled person by that statute (Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 59 AD2d 449, affd 46 NY2d 950). Indeed, the employer in the present case perceived the Averill holding as placing the determination of “relatedness” in its hands rather than in those of the Division of Human Rights. Moreover, the court thereafter ruled that the amendatory language by which Assemblyman Oliver Koppell and his fellow sponsors of the statute sought, post-Averill, to clarify the original legislative intent was not to be applied retroactively (State Division of Human Rights [Ghee] v County of Monroe, 48 NY2d 727). Accordingly, there is now no point in pressing the views expressed in my dissenting opinions in the afore-mentioned cases. All the more is this so since Averill and Ghee will not control controversies arising after the effective date of the recent amendment (L 1979, ch 594).

Wachtler, J.

(dissenting). In affirming, the majority has effectively repealed section 296 of the Executive Law as originally enacted, insofar as it seeks to prevent a disability unrelated to job performance to be used as an excuse not to hire an individual.

In this case we have an 18 year old with dermatitis, a condition totally unrelated to the three-month summer job which he sought. He was not hired because the employer feared that this youngster’s condition would be exacerbated by the chemicals to which he would be exposed. It is conceded that this disability, a rash on his face and inner thighs, would not have interfered with his job performance.

Any number of conditions, from acne to arthritis could be aggravated by any number of employment modes but it seems perverse to permit a threat or even the likelihood of this kind of future disability to be used as an excuse not to hire. Indeed, it would be difficult to imagine any physical disability which, given the ingenuity of an employer bent on not hiring an individual, could not be projected as a potential cause of future difficulty severe enough to prevent the satisfactory performance of a job at some future date.

Given our determination in this case, and our recent decisions in Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 59 AD2d 449, affd 46 NY2d 950; State Div. of Human Rights [Ghee] v County of Monroe, 48 NY2d 727), the State Division of Human Rights will be hard put to find a case of disability discrimination which it can remedy under the statute as originally enacted. Hopefully in future cases the recent amendment to the statute will remove the obstacle created, by these decisions. It is unfortunate, however, that the court persists in applying and expanding, in pending cases, the rule announced in these decisions long after the Legislature has indicated by the recent amendment, that the statute should not be interpreted in such a technical and unworkable manner.

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

Order affirmed.