text:
    Frank J. DiSalvo, Individually and as Father and Natural Guardian of Christine DiSalvo, an Infant, Appellant, v Armae, Inc., Doing Business as Sunny Hill Farm, Inc., Respondent, et al., Defendants. (And a Third-Party Action.)
    Argued November 23, 1976;
    decided December 22, 1976

      Joseph P. Altier and E. Rochelle Kraus, New York City, for appellant.

      Nathan Cyperstein and Arthur N. Seiff, New York City, for respondent.
   Chief Judge Breitel.

Plaintiffs appeal in a negligence action to recover damages for personal injuries to the five-year-old infant plaintiff. They had been paying guests at a mountain resort, when the child ran into the side of a slowly moving pickup truck, as it traversed a private road dividing portions of the 130-acre resort. The trial court, after a jury trial limited to the issue of liability, found in favor of plaintiffs against the resort owner, but acquitted the owner and operator of the truck of any negligence. The Appellate Division, on the appeal of the resort owner, reversed, on the law and the facts. It dismissed the complaint, stating tersely that there was no liability because the child was, at the time of the accident, in the immediate supervision of her parents.

There should be a reversal and a new trial. The case was tried against the resort owner on the theory that it provided an unsafe arrangement for its paying guests in permitting the activities on that 1969 July Fourth day to separate or to encourage the separation of the adults and the children by a private road that was not closed to motor vehicles. This theory raised an issue of fact for a jury, and dismissal of the complaint on the law was not proper.

Infant plaintiff and her family, consisting of the father, mother, and the child’s two sisters, aged 13 and 7, arrived at the resort on July 3, 1969. The next day there were festivities associated with the holiday, a motion picture show at one of the motels at the resort complex and later, after dark, there were to be fireworks. Across the road from the planned festivities was an existing layout of recreational facilities for children. The infant Christine, and many of the children, had been attracted to the play area, while their elders waited to watch the motion picture. The private road, a covered gravel-based road, was free of traffic, and the children crossed and recrossed the dividing road. Just before the accident, the pickup truck, owned by the son of the principal in defendant corporation, and operated by his young sister, both of whom worked on the premises, was proceeding in low gear at about five miles per hour. Christine was runnning across the road either to return to or leave the play area. When the accident occurred, she, presumably, ran blindly into the side of the truck and was caught under the rear wheel.

Even if one were to apply the principles in tort law which prevailed before the recent cases enlarging on the duty owed by occupants of land to those upon their premises a case is made out sufficiently for submission to a jury. With the advent of the enlarged rule the result is even more obvious (Basso v Miller; 40 NY2d 233; Scurti v City of New York, 40 NY2d 433; Barker v Parnossa, Inc., 39 NY2d 926; Parish v Henneberry Road Farms, 39 NY2d 932). Since Christine and her family were paying guests, a very high level of duty owed by the occupants of land would, under even the prior law, be applicable (Haefeli v Woodrich Eng. Co., 255 NY 442, 448-449; Restatement, Torts 2d, §§ 341A, 343; Prosser, Torts [4th ed], pp 392-395; as to innkeepers, see Restatement, Torts 2d, § 314A; 27 NY Jur, Hotels, Restaurants and Motels, §§ 43-46, esp § 46).

It was foreseeable that entertainment and play facilities, designed to attract users in order to enhance the commercial profitability of the resort premises, might have the very effect created that July Fourth, namely, encouraging separation of the parents from their children. The benches for the motion picture were 40 or 50 feet from the road; the children’s play area was 10 feet from the road’s opposite edge. When the child was injured, the mother was seated on one of the benches. The father was seated in the family automobile about 150 feet from the play area. At the time of the accident, there were supposed to have been about 150 persons brought there by the attractions. These were innocent attractions, not nuisances (see Barker v Parnossa, Inc., 39 NY2d 926, supra). The road was the hazard that went disregarded.

Given the generally rural mountain setting, the extensive 130-acre tract with its variety of buildings and facilities, including a lake, a park, a golf course, and a virtually traffic free private road through the premises, a jury could find that under the circumstances the resort owner would have had the obligation to close off or prevent any motor traffic on the road. The very infrequency of a vehicle passing on the road increased the peril for children, too young to be expected to exercise care, and made their parents unalert to any traffic. The accident occurred while no more than 20 minutes had passed since Christine had left her mother.

Hence, the case does not turn on the argument that the child was in the immediate supervision of her parents. The fact is, to the extent that it is relevant, she was not in the "immediate” supervision of her parents. The relaxation in the immediacy of the parents’ supervision was, a jury could find, due to the resort owner’s arrangements, arrangements made deliberately.

This is not to say that the road was never to be used for the purposes for which it had been constructed, or that it had to have been made perfectly safe for little children at all times. Circumstances are relevant. The accident occurred early in the summer season, on a particularly festive national holiday; significant entertainment had been arranged to attract the adults and the children; and the danger of lulling the guests into a false security was an arguably foreseeable risk. It was a special event and a jury could find as this one did, just as a jury could also have found that the resort was not negligent and that the accident was caused only by a failure of parental care, or that no one was negligent. Of course, the negligence of the parent is not imputable to the child (General Obligations Law, § 3-111).

That is all, really, that there is to the case.

Accordingly, the order of the Appellate Division should be reversed, with costs to abide the event, and a new trial ordered.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed and a new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: Jones, J. Chief Judge Breitel (dissenting).

license: Public Domain

text:
    Brooklyn Union Gas Company, Respondent, v New York State Human Rights Appeal Board et al., Appellants. American Airlines, Inc., Respondent, v State Human Rights Appeal Board et al., Appellants. State Division of Human Rights, Respondent, v Crouse-Irving Memorial Hospital, Appellant.
    Argued October 18, 1976;
    decided December 20, 1976

      Ann Thacher Anderson and Beverly Gross, New York City, for New York State Division of Human Rights, appellant in the first above-entitled proceeding.

      John E. Murphy and Harry G. Hill, Brooklyn, for respondent in the first above-entitled proceeding.

      Rosalind S. Fink, Cecelia H. Goetz and Susan B. Lindenauer, New York City, for Special Committee on Women’s Rights of the New York County Lawyers’ Association, amicus curiae.

      Ann Thacher Anderson and Beverly Gross, New York City, for State Division of Human Rights, appellant in the second above-entitled proceeding.

      James B. McQuillan, New York City, respondent in the second above-entitled proceeding.

      John F. Lawton, Syracuse, for appellant in the third above-entitled proceeding.

      Ann Thacher Anderson and Beverly Gross, New York City, for respondent in the third above-entitled proceeding.

      David L. Benetar, Eugene D. Ulterino and Stanley Schair, New York City, for New York Chamber, Associated Industries of New York State, Inc., and another, amici curiae.

      Edward Silver, Morton M. Maneker, Sara S. Portnoy and Stephen E. Tisman, New York City, for American Telephone & Telegraph Company and others, amici curiae.

      Susan C. Ross, Kathleen Willert Peratis, Melvin L. Wulf and Eve Cary, New York City, for American Civil Liberties Union and another, amici curiae.

   Jones, J.

We hold that the provisions of subdivision 3 of section 205 of our State’s Disability Benefits Law do not operate to shelter employment practices in the private sector that would otherwise be impermissibly discriminatory under our Human Rights Law. The imperative of the latter overrides the permissiveness of the former.

We have held that an employment personnel policy which singles out pregnancy and childbirth for treatment different from that accorded other instances of physical or medical impairment or disability is prohibited by the Human Rights Law (Union Free School Dist. No. 6, Towns of Islip & Smith-town v New York State Human Rights Appeal Bd., 35 NY2d 371; Board of Educ. v New York State Div. of Human Rights, 35 NY2d 673; Matter of Board of Educ. v State Div. of Human Rights, 35 NY2d 675). In each of these cases the employment was in the public sector and we concluded that a practice of differentiated treatment of pregnancy-related disability came within the statutory ban.

In the present cases we confront conceptually indistinguishable personnel practices but now for the first time the employment is in the private sector. This is said to call for a different consequence because the assertedly discriminatory practice is with respect to benefits within the ambit of the Disability Benefits Law (DBL), which is applicable to private but not to public employment. Under the DBL, disability "caused by or arising in connection with a pregnancy” is excepted from the minimum benefits mandated by that law (§ 205, subd 3). We are urged to hold that the provisions of the DBL rather than those of the Human Rights Law (HRL) establish the minimum performance to be required of private employers—in effect that compliance with the minimum standards of the DBL will excuse failure to comply with the mandate of the HRL. We reject this conclusion.

There is an evident incongruity between the DBL and the HRL, and the determinative issue is which law shall be held to be operatively controlling. Initially we note that the DBL (Workmen’s Compensation Law, art 9), adopted in 1949, was enacted as socioeconomic legislation designed to assure economic support for working men and women temporarily unable to continue their employment because of sickness or injury unconnected with that employment, and thus to bridge the gap between workmen’s compensation and unemployment insurance (see Matter of Flo v General Elec. Co., 7 NY2d 96, 99; Report of Joint Legislative Committee on Industrial and Labor Conditions, NY Legis Doc, 1949, No. 67, p 44). The new statute fixed a floor, not a ceiling; it contained no prohibition against granting disability benefits in excess of those mandated by the DEL, thereby to supplement and to exceed the legislatively mandated minimum. Public employers were not required to conform to the requirements of the DEL (§ 201, subd 4) although they were authorized voluntarily to elect to be covered (§ 212, subd 2). Various factors, including considerations of the cost of providing benefits, went into the determination of benefit coverage and benefit levels (see Report of Joint Legislative Committee on Industrial and Labor Conditions, NY Legis Doc, 1949, No. 67, p 44).

In 1965 the Human Rights Law (Executive Law, art 15) was amended to prohibit discrimination in employment on account of sex. The new law laid down a blanket proscription applicable to all employers, public and private, with more than three employees (Executive Law, § 292, subd 5); its objective was quite different from, though not necessarily at odds with, the objective of the DEL. "It shall be an unlawful discriminatory practice * * * For an employer * * * because of the * * * sex * * * of any individual * * * to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” (Executive Law, § 296, subd 1, par [a].)

In the effort to reconcile the HRL and the DEL much attention has been devoted in the courts below to the principle and mechanics of the so-called doctrine of "implied repeal”. In our view it advances neither analysis nor comprehension to treat the statutory relationship of the 1965 HRL to the 1949 DEL in the category of implied repeal. Indeed argument in that formulation has been abandoned by the Human Rights Division in our court. However the issue may be verbalized, the question is whether the earlier and still existing sections of the DEL now relieve private employers from the necessity of compliance with the mandate of the HRL. It does not have to be concluded that the HRL articulates a superior command, or that it reflects a worthier public policy than does the DEL; it suffices if it be recognized that the HRL expresses a different command.

Analysis of the statutory predicament we confront may be aided by resort to another discipline and to the geometric concept of "skew lines”—two nonparallel lines which do not intersect however far extended and which accordingly do not lie in the same plane. So, too, here there is no collision between the HRL and the DEL; they pass each other without intersection. Each law is cast in terms of minimum requirements, but from different perspectives. As in other instances of concurrent independent minima, one set of minimum requirements will be operative in one circumstance, the other set in another circumstance. That this is so involves no contradiction or logical difficulty. Thus, at present for employers with three or fewer employees, the operative minimum is only that of the DEL; for all others it is that of the HRL. Or by way of another perspective, if the HRL were to be repealed —a contingency realistically unthinkable, but perhaps illustratively useful—the DEL would once again become operative for all covered employment without the necessity of re-enactment. We do not hold, then, that the HRL struck down the DEL; rather in areas within the reach of both statutes the HRL rendered the DEL dormant. In sum, the DEL and the HRL each lay down minimum demands on employers. Whichever statute imposes the greater obligation is the one which becomes operative. In the cases before us it is the HRL.

To determine whether the DEL survived the enactment of the 1965 amendment to the HRL, or whether the latter impliedly repealed the former, or whether, as we hold, the two statutes are to be read together as resulting in the imposition of two concurrent independent minimum standards is no arrogation of a legislative prerogative. It is rather, whatever may be the outcome, the ordinary discharge of a familiar judicial responsibility. There can be no escape from what the dissent characterizes as the "ranking of statutes” if it is thereby intended to refer to the fact that the provisions of either the HRL or the DEL must be held to be operative. The dissent would hold that the DBL sets the operative standard; we hold that in this instance it is the HRL.

The private employers argue that it is significant that the pre-existing differentiated treatment permitted with respect to pregnancy disabilities under the DBL was not prohibited by explicit provision in the 1965 amendment of the HRL. This contention misconceives the thrust and design of the HRL; it was intended as a blanket proscription. Surely it cannot be accepted that each discriminatory practice in use in 1965, whether existing by legislative grace or in consequence of employment custom or usage, should have been marked for explicit demise. Indeed, no discriminatory practice was identified—the very purpose of the HRL was by blanket description to eliminate all forms of discrimination, those then existing as well as any later devised. To contend that, absent explicit condemnation, any pre-existing discriminatory practice which might be said to have had legislative blessing prior to 1965 was assured continued acceptability would be largely to emasculate the new statute, intended as it was to eradicate all discrimination. What is significant is the fact that with the means so readily available to it the Legislature chose not to exempt the benefits commanded by the DBL from the prohibition of the HRL. That, as the dissent points out, there was specific tailoring with respect to certain exceptions underscores the point.

We agree with the dissent that there are differences, significant economic and policy differences, between public and private employment. We agree, too, that, absent issues of constitutional dimension (of which there are none with respect to the question now before us), the Legislature may take such differences into account in making different provision with respect to the two types of employment. Indeed that is what it did in the instance of disability benefit standards. Contrariwise, and this is critical in our view, this is precisely what the Legislature did not do when it enacted the Human Rights Law and particularly when in 1965 it added sex as an impermissible basis for discrimination. In the absence of a clearly expressed and explicitly manifested legislative intention we could not accept the conclusion that employees in the private sector are to be permitted to suffer discrimination from which employees in the public sector are protected.

It remains to make two other observations. In the first place, with an awareness of the realities of legislative activity and inactivity and particularly the variety of reasons which may be ascribed thereto, we attach no determinative significance to the failure of persisting attempts at explicit legislative integration of these two statutes. Questionable as may be any reliance on legislative inactivity, we would distinguish instances in which the legislative inactivity has continued in the face of a prevailing statutory construction. Thus, "[wjhere the practical construction of a statute is well known, the Legislature is charged with knowledge and its failure to interfere indicates acquiescence” (Engle v Talarico, 33 NY2d 237, 242). Such is not the circumstance here, however, for it is not until the announcement of our decision in the present cases that there may be said to be a final judicial determination as to the operative relation between the Disability Benefits Law and the Human Rights Law, with respect to which future inactivity may someday arguably be said to be significant.

Second, we set aside the spectres of assertedly prohibitive cost predicted to accompany any provision of equal benefits for pregnancy-related disability. A court cannot responsibly be wholly indifferent to the economic impact likely to attend its decisions, but neither can the prospect of financial impact dictate the judicial outcome. We do not doubt that the eradication of sexual discrimination, as well as of impermissible discrimination in other categories, will normally be expensive at least in the short run. We would violate our judicial responsibility, however, were we to accept the proposition pressed on us by some that while implementation of the HRL may proceed apace where cost can be said to be acceptable, some erosion of the blanket prohibition must be tolerated where compliance may be expected to work serious economic distress. The very proper relevance of cost consideration enters the picture when determinations are to be made as to the particulars of implementation of the statutory mandate. In its presentation to us on these appeals the Human Rights Division acknowledged its awareness of very great responsibility in this regard.

Finally, entirely aside from the core issue in these cases as to whether the provisions of the DBL operate to cut back what would otherwise be the responsibility of the employers under the HRL, in two of the cases there was impermissible discrimination in the denial of sick leave, a benefit area outside the scope of the DBL. In both Brooklyn Union Gas and CrouseIrving, the commissioner determined that denial of sick leave benefits constituted impermissible discrimination in the circumstances. Accordingly, quite apart from any question as to the impact of the DBL, the orders of the Human Rights Appeal Board should be sustained to the extent that payment of sick leave was directed. In cases in which the DBL was not involved we have previously held that a personnel policy which singles out pregnancy and childbirth for treatment different from that accorded other forms of disability is prohibited by the HRL (see authorities cited, p 86).

In Brooklyn Union Gas and in American Airlines, the respective orders of the Appellate Divisions should be reversed, and the orders of the Human Rights Appeal Board confirmed; in Crouse-Irving the order of the Appellate Division should be affirmed.

Chief Judge Breitel (dissenting).

I dissent and would affirm the orders of the Appellate Division in the Gas Company and the Airlines cases, and reverse the order in the Hospital case and annul the determination.

The General Elec. Co. case, decided recently by the United States Supreme Court (General Elec. Co. v Gilbert, 429 US 125), of course, is not determinative or even influential in consideration of the issues in these appeals. General Elec. involved a different statute and a disability insurance program not affected, in any way, by any Federal statute concerned with disability insurance for employees in either public or private employment. On the other hand, these appeals arise from the State statute governing discrimination, the Human Rights Law (Executive Law, § 296), and under the State statute providing for disability benefits for disabilities unconnected with employment (Workmen’s Compensation Law, art 9). The two sets of appeals share in common the absence of a constitutional limitation proscribing one result or mandating the other. The last is key to these appeals. The question is purely legislative and the standards to be applied are those appropriate to judicial review and not those appropriate to initiating social-economic policy or projecting, however right, the social-economic preferences of the court’s members.

I dissent not because I accept any license in public or private employment to discriminate invidiously against women. I do so because, as the majority would undoubtedly recognize, and it is but a truism, differences among human beings, either as individuals or as members of a class, may be acknowledged and acted upon without legal or moral vulnerability, provided the action is neither based on nor the effect of a concept of inferiority or the imposition of a disadvantage inappropriate to the difference. More important, I do so because the Legislature, the body responsible for making such policy decisions, has explicitly sanctioned the exclusion of pregnancy benefits from disability benefits coverage.

The Human Rights Law (Executive Law, § 296, esp subd 1, par [a]) makes illegal in private and public employment invidious discrimination based on race, national origin, creed, sex, marital status, disability, and age. But the statute’s proscriptions are not absolute, and it does not purport, as indeed it could not properly, to be a higher law outranking all other statute law.

Exceptions appear in the Human Rights Law itself. The young may be denied access to liquor (Executive Law, § 296, subd 1, par [f]). Neither the very young nor the aged are entirely protected against employment discrimination (see § 296, subd 3-a). Religious institutions may employ only those of their own faith (§ 296, subd 11).

Other statutory exceptions, not expressed in the Human Rights Law, are equally well established. For example, public employee retirement plans discriminate on the basis of age, even for those not yet 65, by imposing a minimum age requirement (Retirement and Social Security Law, § 2, subd 18; § 70, subd a; § 71, subd a). And this court has recognized that even race and ethnic origin may be given a preliminary preference in recruitment or selection in order to accommodate for discriminatory wrongs of the past or present (Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326, 336-337; see Matter of Broidrick v Lindsay, 39 NY2d 641, 647, 649).

Hence, even if section 296 of the Human Rights Law were the only statute to which the court was bound to look, the issue in these cases would be troublesome. Complicating the matter is the unique character of pregnancy and all its incidents. ,

There is no longer any question that pregnancy-based classifications of the type challenged in these cases pose no constitutional difficulties (Geduldig v Aiello, 417 US 484, 486-487, 496497). And as the Supreme Court has recently decided, pregnancy-related disability exclusions are permissible under title VII of the Federal Civil Rights Act, a similar antidiscrimination statute (General Elec. Co. v Gilbert, 429 US 125, 133-140, supra; US Code, tit 42, § 2000e-2).

To be sure, in cases involving public school employment, this court, interpreting section 296, has held that pregnant teachers may not be compelled either to take a disability leave before they are in fact disabled or to extend their leave beyond the period during which they were actually disabled (Board of Educ., East Williston v New York State Div. of Human Rights, 35 NY2d 673; Board of Educ., Oyster Bay & Babylon v New York State Div. of Human Rights, 35 NY2d 677). Of course, these cases involved archaic discriminations against women, mandating involuntary disemployment, which, on the one hand, regarded obvious pregnancy as indelicate for young children to behold, and on the other hand, paternalistically required mothers to tend their newborn personally. The effect was impermissible, even if unintended or based on outdated concepts of propriety.

Then, in another public school case, this court determined that so long as teachers generally were entitled to use sick and sabbatical leaves to cover periods of temporary physical disability, the same could not be denied if by chance the period of disability were caused by pregnancy (Matter of Board of Educ. v State Div. of Human Rights, 35 NY2d 675). In light of the City of New York (35 NY2d 675) case, it might be argued that denial of disability benefits in this case would work a discrimination between public school employment and other, private, employment. And, in fact, it would. But public and private employment are different in many respects, and the Legislature is entitled to recognize those differences. It has done so.

Because public employment and private employment are different, a discrimination in policy between them is not necessarily an invidious one, obviously the only kind prohibited by the Human Rights Law, although not so expressed. The costs of benefits in public employment are borne by the general taxpayer; they are not in private employment. Most important, private employers, except for regulated monopolies, are competitive with one another, not only within the State but within the Federal Union, and often, for a State like New York particularly, within the trading world. Then, too, there is a substantially greater risk in the case of private employment as compared with public employment that certain burdens may discourage, beyond effective detection, the employment of the members of the benefited class. This does not mean that the choice to provide coverage, onerous though it may be to private employment, should not be made, as was done with child labor and, within legislated limits, discrimination for age, sex, race, creed, or national origin. The point is that the choice is a legislative one to be made deliberately and should not be the product of judicial extrapolation based on social and economic preferences, whether in the majority or minority of this court.

The Legislature made that choice by providing that the Disability Benefits Law should apply only to private employment, and then only to certain private employments. Hence, the Human Rights Law is not the only statute involved in the cases now before the court. On the contrary, these cases must be resolved by reference to explicit provisions in the Disability Benefits Law (Workmen’s Compensation Law, § 205):

"No employee shall be entitled to benefits under this article: * * *

"3. for any period of disability caused by or arising in connection with a pregnancy”.

This provision, not involved in any of the previous pregnancy-related cases, should be dispositive of the issue now presented. It reflects the legislative choice, whether that choice was right or wrong on social-economic grounds.

In 1949 the State adopted an innovative and forward-looking program to provide disability benefits for disabled workmen not entitled to workmen’s compensation (Workmen’s Compensation Law, art 9). The counterpart to workmen’s compensation in the proper sense of the word, it was to cover illness or disease and the consequences of accidents not arising in or out of the course of private employment. It was not to take care of "disabilities” due to other conditions which prevented one from engaging in compensated employment. It did not cover public employment. (See, generally, Governor’s memorandum on approval of Workmen’s Compensation Law, art 9, NY Legis Ann, 1949, pp 263-264.) Thus pregnancy was deliberately and explicitly excepted from coverage, and that has been the law since 1949 (see 1949 Report of Joint Legislative Committee on Industrial and Labor Conditions, NY Legis Doc, 1949, No. 67, p 44). Even since 1965, when the Human Rights Law was amended to prohibit sex discrimination, repeated efforts in the Legislature to eliminate the pregnancy exclusion of section 296 have failed, undoubtedly because the change would not conform with the Legislature’s view of the pattern and philosophy of the Disability Benefits Law (see 1965 Assembly Intro No. 856; 1971 Assembly Intro No. 4000; 1972 Assembly Intro Nos. 4000, 11269; 1972 Senate Intro No. 9370; 1973 Assembly Intro Nos. 1286, 4871, 5286; 1973 Senate Intro No. 2041; 1974 Assembly Intro Nos. 1286, 5286; 1974 Senate Intro No. 2041). The bills and the efforts to amend were controversial, debated by legislative supporters and opponents to the liberalizing measures. These were not bills merely filed and printed to mollify noisy proponents (compare New York Civil Liberties Union, Legislative Memorandum No. 8, Jan. 28, 1972, with Commerce & Industry Association of New York, Inc., Newsletter 72:8, Feb. 24, 1972). The bills were never passed, or even brought out of committee, despite publicity and strenuous efforts.

It is of interest, and relevant analytically, that while the Disability Benefits Law was first being considered, and later as amendments were being proposed, it was noted in legislative studies that there were some States in which there were statutes providing for pregnancy disability benefits (see 1948 Report of Joint Legislative Committee on Industrial and Labor Conditions, NY Legis Doc, 1948, No. 53, pp 35, 69-71; NJ Stat Ann, §§ 43:21-29, 43:21-39, subd [e]; RI Gen Laws, § 28-41-8). There were even a few States that required that pregnant employees for periods before and after delivery not be employed (Summary of State Labor Laws for Women, United States Department of Labor, March, 1969). In this State unemployment insurance benefits were denied to pregnant women unless they could show that they were still available for employment (Matter of Steiner [Catherwood], 31 AD2d 669, affd 25 NY2d 819).

These differences in treatment show that there are many choices to be made in providing for pecuniary benefits for pregnant working women. These are legislative choices, influenced by all sorts of economic and social factors, not excluding that which determines whether fellow employees, employers, the consumers of particular goods and services, or the general taxpayers should bear the financial burden of whatever costs such benefits entail. Influencing the choice of factors, of course, is the competitive consequence on industries in a State which adopts one policy or another. It is not the function of the court to decide which legislative choices were wise or unwise, or right or wrong, by moral, economic, or social standards.

The majority’s attempt to circumvent the clear expression of the legislative will by appealing, implicitly if not expressly, to the "higher law” values of the Human Rights Law is analytically unsound. The approach engenders a dangerous trend toward judicial arrogation of the legislative function.

It matters not how the majority characterizes its approach. The fact is that the only way to reach its conclusion, other than by adopting the properly rejected implied repeal argument, is by engaging in a ranking of statutes. For the virtual nullity the majority makes of the pregnancy exclusion can be explained only by subordinating the specific provisions of the Disability Benefits Law to the general policies of the Human Rights Law.

By finding a basis for ranking statutes as higher or lower, the majority engages in a jurisprudentially and intellectually dangerous excursion. I had always supposed, and still believe, that it is the exclusive function of the Legislature, within constitutional limits, to rank statutes, establish priorities, repeal or modify (impliedly or expressly), and determine what is and should be the legislative policy of the State. Indeed, I had always supposed, and still believe, that, putting aside controversial concepts of "natural law” and, in the Anglo-American jurisprudence, the unique tradition of the common law, there were only three ranks of law, Constitutions, statutes, and local law or regulations authorized by statute or Constitution. I cannot accept judicial subranking within these categories, substituting, as it does, the subjective or transitory views of a particular majority of a court for the mandates of those entrusted with legislating State policy. The danger posed by the majority’s analysis is not to the purity of terminology, classification, or concept, but to the integrity of a judicial process which does not recognize its limits.

In section 205 of the Disability Benefits Law, the Legislature has spoken with clarity and precision. It has been informed repeatedly of the purportedly discriminatory effect of the pregnancy exclusion, yet it has ¿ever acted to change the provision. Under these circumstances, the result rendered by the majority is nothing less than a direct and unwarranted overruling of legislative directions. If there is no repeal, there must be implication, and if there is neither the "law-making” function of a court is abused.

Accordingly, I dissent.

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

In Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd: Order reversed, with costs, the order of the Human Rights Appeal Board confirmed and cross motion for enforcement granted.

In American Airlines v State Human Rights Appeal Bd.: Order reversed, with costs, and the order of the Human Rights Appeal Board confirmed.

In State Div. of Human Rights v Crouse-Irving Mem. Hosp.: Order affirmed, with costs.

      . We are aware, of course, that the United States Supreme Court has recently reached a contrary result in construing title VII (§ 703, subd [a], par [1]) of the Federal Civil Rights Act of 1964 (US Code, tit 42, § 2000e-2, subd [a], par [1]; General Elec. Co. v Gilbert, 429 US 125). The pertinent provisions of that statute are substantially identical to those of section 296 of the Executive Law of the State of New York. The determination of the Supreme Court, while instructive, is not binding on our court as we now confront the contention of private employers that the provisions of our State’s Disability Benefits Law excuse their failure to conform to the standard that we have held our Human Rights Law demands of public employers.

      . The situation would have been otherwise had the existing statute (the DBL), instead of setting a floor, contained provisions barring employers from treating pregnancy-related disabilities the same as nonj>regnancy-related disabilities. Then, indeed, the two statutes would have been repugnant. They could not have continued to exist side by side; one would have had to give way to the other.

      . We were informed on the application for leave to appeal in Crouse-Irving that the complainant’s right to sick leave benefits was no longer at issue and that she had been paid such benefits.


author: Wachtler, J. Jasen, J. (concurring).

text:
    The People of the State of New York, Respondent, v Leon Townes, Appellant.
    Argued October 13, 1976;
    decided December 20, 1976

      Jonathon D. Warner and William. E. Hellerstein, New York City, for appellant.

      Robert M. Morgenthau, District Attorney (Edward Agnew McDonald, Peter L. Zimroth and Robert M. Pitler of counsel), New York City, for respondent.
   Wachtler, J.

After pleading guilty the defendant was convicted of possession of a weapon as a felony (Penal Law, former § 265.05) and of resisting arrest. Thereafter, when he appeared for sentencing he sought to withdraw his guilty plea. The application was denied and he was sentenced to an indeterminate prison term of up to seven years on the weapons charge and to an unconditional discharge on the charge of resisting arrest. On this appeal the defendant contends, inter alia, that the trial court was in error in refusing to suppress, after a hearing, the weapon in question and certain incriminating statements made by the defendant out of the presence of his attorney after counsel had been assigned.

At the suppression hearing Officer Krosofsky, the arresting officer, gave the following account of the events leading up to the defendant’s arrest. On July 5, 1972, the defendant, Leon Townes, and his companion, Lionel Warfield, were observed by four plainclothes police officers connected with an anticrime unit. The defendant, and Warfield, were walking around, somewhat aimlessly, in the vicinity of East 80th Street and Third Avenue in Manhattan at approximately 10:30 p.m. For an unstated reason, the four officers, riding in an unmarked vehicle, decided to follow the defendant and his companion and keep them under surveillance. Shortly after first spotting Townes and Warfield, Officer Krosofsky and one other plainclothesman disembarked from the véhicle and began following the defendant and his companion on foot. The officers stayed approximately one-half block behind the two civilians; during this time the two other officers remained in the vehicle and maintained radio contact with the officers on foot. Townes and Warfield continued to walk in various directions and the officers continued to "tail” them, both on foot and in the unmarked car. Eventually the two officers on foot re-entered the unmarked car and continued to follow the defendant and his companion.

Finally, at about 11:30 p.m., after having followed the defendant and his companion for approximately one hour and having observed them doing nothing more than walking about and "[l]ooking at people and stores”, Officer Krosofsky emerged from the unmarked car and approached the two men. The officer testified that he approached them from the front, with his badge in his left hand and his gun drawn, but at his side, and that when he was approximately 15 feet from the men he shouted "Freeze, police.” Thereafter, according to Krosofsky’s testimony at the suppression hearing, the defendant turned his back to the officer, took two steps and then wheeled around and pointed a gun at the officer. Krosofsky testified that he heard a single "click” at which point he fired his own gun three times at the defendant. A second officer then ran over to the defendant and began to grapple with him. Officer Krosofsky joined the fracas and eventually the two officers wrestled the defendant to the ground and seized a .32 caliber revolver from his hand.

The following day the defendant was arraigned in criminal court and counsel was assigned by order of that court on July 10, 1972. On July 14, 1972, an indictment was filed against the defendant charging him with attempted murder, attempted assault in the first degree, two counts of attempted assault in the second degree, possession of a weapon as a felony, and resisting arrest.

After he was indicted, Townes sent a letter to the New York City Civilian Complaint Review Board (hereinafter "Review Board”) in which he claimed that he had been illegally beaten by police officers on the night of the incident leading to his arrest. Townes’ letter was received by the Review Board on July 18, 1972, and a police officer was dispatched to interview the defendant at the Riker’s Island Detention Facility where he was incarcerated.

Patrolman Howard interviewed the defendant, with the defendant’s consent, at Riker’s Island on July 21, 1972. The counsel assigned to the defendant with respect to the charges stemming from the events of July 5 was not present at this interview, nor is there any indication in the record that he had been contacted and informed that the defendant was going to be interviewed concerning this episode or that he had agreed to allow any such questioning in his absence.

Officer Howard testified at the suppression hearing that he went to Riker’s Island dressed in civilian clothes, advised the defendant of his constitutional rights, and then asked Townes to describe in his own words the events which occurred on the evening of July 5. The defendant proceeded to relate an account of the incident in which he described various acts of police misconduct. During the course of this account, however, Townes stated that after the officers had knocked him to the ground and punched and kicked him repeatedly, one of the officers reached into the defendant’s pocket and removed the gun in question. Thus, in essence, defendant incriminated himself by reason of his admission that he had been carrying a gun.

Before trial Townes moved to suppress the weapon as well as the statement made to Officer Howard. After a hearing defendant’s motions to suppress were denied with respect to both the gun and the incriminating statement and thereafter Townes entered his plea of guilty to possession of a weapon as a felony and resisting arrest, in satisfaction of all the counts of the indictment.

With regard to the suppression of the gun, the defendant argues that the encounter between himself and the plainclothes police officers constituted an unconstitutional seizure of his person and that the weapon should therefore be suppressed. While we agree that the police activity amounted to an unconstitutional seizure of Townes’ person, we do not agree that it was error for the trial court to refuse to suppress the gun.

This court has recently set forth the standards to be followed in evaluating the lawfulness of police activity respecting street encounters with civilians (People v De Bour and People v La Pene, 40 NY2d 210; People v Cantor, 36 NY2d 106), noting that "we must consider first whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible” (People v De Bour, supra, p 215). Applying this standard to the present case it is clear that the actions of the police officers cannot be sustained.

It cannot be argued, and indeed the prosecutor concedes the point in his brief, that even were we to hold that the police action in stopping the defendant was justified in its inception, doing so with gun drawn and shouting a command to "Freeze” was not reasonably related in scope to the circumstances which rendered the stop permissible, and hence the test laid down in De Bour has not been met. Here we have had a significant interruption with this defendant’s freedom of movement and such a seizure by the police cannot be said to pass constitutional muster without further justification for their action (People v Cantor, supra, p 111; Terry v Ohio, 392 US 1).

Having so held, we turn next to whether the defendant’s gun should be suppressed as the fruit of the unlawful seizure of his person. The defendant argues that the instant case cannot be distinguished from People v Cantor (supra), and that therefore we should reach a similar result; i.e., the suppression of the weapon. We cannot agree.

In Cantor the defendant was in front of his own home when he was surrounded by three men in street clothes approaching him from different directions while a fourth man in a private unmarked vehicle pulled to the curb in a manner so as to prevent any possible movement of defendant’s car. None of the plainclothes police officers had identified themselves as such when Cantor, confronted with this seemingly precarious situation, reached into his pocket and pulled out what appeared to be a pistol. Thereafter one of the officers identified himself and exhibited his badge and Cantor immediately returned the object he was holding to his back pocket and placed his hands above his head as directed. The officers subsequently removed the pistol from Cantor’s pocket and seized it. We held that the pistol should have been suppressed as the fruit of an unconstitutional seizure of the person since it had been "revealed as a direct consequence of the illegal nature of the stop” (People v Cantor, supra, p 114).

The instant case is distinguishable. Under the affirmed findings of fact it cannot be said that the weapon was revealed as a direct result of the unlawful nature of the police conduct. Here the gun was produced after the officers had clearly identified themselves, not before as in Cantor; and here the defendant did not immediately reholster the weapon and comply with the officer’s commands, as occurred in Cantor, but rather Townes disregarded those orders, pulled the weapon, aimed it at the officer and attempted to fire it. Thus, under these circumstances Townes’ act was unjustified and criminal in nature (see Penal Law, § 35.27) and unrelated to the initial albeit unlawful action on the part of the police (see People v Archiopoli, 39 AD2d 748; see, also, People v Munger, 37 AD2d 950, app dsmd 33 NY2d 576).

We find that Townes’ free and independent action in pulling and attempting to fire the gun, taken after and in spite of, or perhaps because of, the plainclothesman’s identification of himself as a police officer, serves to render any "connection between the lawless conduct of the police and the discovery of the challenged evidence * * * 'so attenuated as to dissipate the taint’ ” (Wong Sun v United States, 371 US 471, 487, quoting Nardone v United States, 308 US 338, 341; see Brown v Illinois, 422 US 590, 603-604; People v Martinez, 37 NY2d 662). The motion to suppress the weapon was, therefore, properly denied.

We turn now to the issue regarding the lower court’s refusal to suppress Townes’ statement to Officer Howard, the representative of the Review Board sent to interview the defendant with respect to his allegations of illegal and improper police action. As noted, the interview in question took place at the Riker’s Island Detention Facility, in the absence of Townes’ attorney, after he had been arraigned and indicted and counsel had been assigned. The defendant argues that the interview was prohibited in the absence of his attorney and that his purported waiver of his right to counsel was ineffective since it took place without the presence of his counsel. The People, on the other hand, contend that the defendant’s statement was voluntary and not the product of interrogation in that the defendant had initiated the Review Board’s involvement by writing to them and alleging police misconduct and because the interviewing police officer did nothing to induce the statement; and that the interview was not held in connection with the criminal charges pending against the defendant but rather the statement was made in connection with a completely separate proceeding concerned solely with the allegations of improper conduct by the arresting officers. We agree with the defendant.

It has long been the law in this State that any incriminating statement made in the absence'of counsel by a defendant in response to interrogation relating to the criminal charge under investigation after he has been arraigned or indicted is inadmissible in evidence against the defendant (People v Waterman, 9 NY2d 561, 565; People v Di Biasi, 7 NY2d 544, 550-551). This rule developed from our view that once an individual has been arraigned or indicted, formal criminal proceedings against him have commenced and any interrogation after that point would infringe upon a defendant’s right to counsel and his right to be free from testimonial compulsion (People v Stanley, 15 NY2d 30, 32, citing People v Waterman, supra, pp 564-565). Thus, the only question now before us is whether an interview between the defendant and a police officer representing the Review Board, concerning the events surrounding the defendant’s arrest on the very charge which is the subject of the criminal proceeding then pending against him, should fall within this rule.

The fact that it was the defendant’s letter of complaint which initiated the interview does not render his incriminating statement voluntary. The defendant contacted the Review Board to complain about police action toward him which he felt was unjust and unlawful. While this action indicated the defendant’s willingness to freely discuss the conduct of the police with respect to this incident, we do not believe that it should be construed as an indication that the defendant sought to expose himself to interrogation with respect to factual matters which could be deemed relevant with respect to the existence of the underlying crime with which he was charged. By his initiative the defendant sought to assert a right which he felt had been transgressed, not to open the door to yet another transgression of his rights.

Our view is not altered by the prosecution’s claim that the inculpatory statement was not the product of interrogation or induced by Officer Howard. The prosecution’s reliance on People v Kaye (25 NY2d 139) and People v McKie (25 NY2d 19) is misplaced since both cases are factually distinct from the present case. In Kaye the police officer questioned the defendant for the purpose of obtaining a clarification of the defendant’s version of the story only after the defendant had blurted out a damaging though somewhat ambiguous admission, while in McKie there was no interrogation of the defendant. In the case presently before us, at the suppression hearing Officer Howard himself testified that his intent, expressed to the defendant, in going to Riker’s Island was to interview Townes and that, after informing Townes of his constitutional rights, he asked Townes "to tell me in his own words, the events which occurred on the evening of July 5, 1972 at approximately 10:30 p.m. at 84th Street and Madison Avenue”. It was in responding to this inquiry that Townes made the incriminating statement. We are of the opinion that this single question directly seeking detailed information with respect to the factual details of the very incident which formed the basis of the criminal charges against the defendant was sufficient to constitute an interrogation.

Nor can we accept the prosecution’s argument that even though the damaging admission was made during the course of interrogation, it should not be suppressed since the interview before the Review Board was not in the course of the investigation concerning the particular criminal charges pending against Townes. This is not a case like those in which we have held admissible incriminating statements obtained in the absence of counsel where counsel had entered other criminal proceedings then pending against the defendant where the challenged interrogation involved a totally unrelated proceeding concerning a second and distinct criminal investigation arising out of an entirely discrete set of facts (see People v Taylor, 27 NY2d 327; People v Hetherington, 27 NY2d 242). Here the subject of the interrogation and the subject of the criminal charges are so inextricably interwoven in terms of both their temporal proximity and factual interrelationship as to render unavoidable the conclusion that any interrogation concerning the arrest would almost inevitably involve some potentially incriminating discussion of the facts of the crime itself. To separate the arrest from the crime itself, and more importantly, to ask the defendant to make that distinction, is to seek to draw far too fine a line. Indeed, it is apparent from the fact that at the very outset of the interview Officer Howard advised the defendant of his constitutional rights, that the Review Board itself was well aware of the probability that a discussion of the circumstances underlying the pending indictment would ensue. Under such circumstances we cannot accept the proposition that the interview in question was unrelated to the outstanding criminal charges against this defendant.

We hold that the defendant’s incriminating statement made in the absence of his attorney during the course of an interview before the Review Board was obtained in violation of his constitutionally mandated right to counsel and therefore it should have been suppressed. The Review Board, aware that this defendant had been arraigned, indicted and assigned counsel, was free to interview the defendant and to make use of the product of that interview in connection with its inquiry into the allegations of police misconduct, but the People should have been prohibited from using the inculpatory statement so elicited in the prosecution of the criminal charges against the defendant.

The prosecution nevertheless argues that the defendant’s conviction upon his guilty plea should be allowed to stand. We would but note that the incriminating statement was a "likely factor which might have induced the plea and might have affected substantially a verdict upon a trial” (People v Ramos, 40 NY2d 610, 619).

Accordingly, the order of the Appellate Division should be reversed, the plea vacated, the defendant’s statement suppressed, and the case restored to its prepleading status.

Jasen, J. (concurring).

While I am in accord with the majority’s analysis of the search and seizure issues, I cannot accept the overly broad statements made in furtherance of the holding that the voluntary Review Board interview was not admissible in evidence. I agree that the interview should have been suppressed, but my conclusion is based solely on the controlling authority of People v Hobson (39 NY2d 479), which the majority does not even cite. In Hobson, we held that "[o]nce a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer.” (39 NY2d, at p 481 [emphasis added].) Here, the defendant was in custody and had an assigned attorney when the police representative of the Review Board conducted the interview within the confines of a detention facility. It is true that the interview resulted from a complaint voluntarily initiated by the defendant and that the Review Board representative gave the defendant the standard preinterrogation warnings prior to the interview. (Miranda v Arizona, 384 US 436.) Even though defendant acknowledged understanding his rights, his waiver of the right to counsel was ineffective, since the waiver took place in a detention facility and outside the presence of his counsel. "The rule that once a lawyer has entered the proceedings in connection with the charges under investigation, a person in custody may validly waive the assistance of counsel only in the presence of a lawyer breathes life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary”. (39 NY2d, at p 484 [emphasis added].) It is on this basis only that I vote to reverse the order of the Appellate Division.

Chief Judge Breitel and Judges Gabrielli, Jones, Fuchs-berg and Cooke concur with Judge Wachtler; Judge Jasen concurs in a separate opinion.

Order reversed, plea vacated, defendant’s statement suppressed, the case restored to its prepleading status, and the case remitted to Supreme Court, New York County, for further proceedings on the indictment.


author: Wachtler, J. Jasen, J. (dissenting).

text:
    The People of the State of New York, Respondent, v John Roberson, Appellant.
    Argued October 13, 1976;
    decided December 20, 1976

      Carolyn Wheat, William E. Hellerstein and William J. Gallagher, New York City, for appellant.

      Robert M. Morgenthau, District Attorney (Richard H. Girgenti, Peter L. Zimroth and Robert M. Pitler of counsel), New York City, for respondent.
   Wachtler, J.

The defendant was charged with possession of a weapon as a felony, criminal possession of a dangerous drug in the sixth degree, resisting arrest and menacing. Before trial Roberson moved to suppress certain incriminating statements made by him as having been obtained in violation of his right to counsel. Following a hearing, his motion to suppress was denied and he subsequently pleaded guilty to possession of a weapon as a felony (Penal Law, former § 265.05) in satisfaction of all the counts of the indictment. He was later sentenced to a nine-month term of imprisonment. On this appeal he argues that the damaging statements, obtained out of the presence of his attorney after he had been arraigned, indicted and had been assigned counsel, should have been suppressed.

On May 6, 1971, pursuant to a search warrant, two police officers entered the apartment in which the defendant lived together with Tony Mangini, Kathleen Splaine and another woman. Mangini, Splaine and the defendant were home at the time. The police arrested all three individuals and seized a small quantity of cannabis and a .32 caliber revolver which they found in the apartment. Roberson was arraigned in the Criminal Court of the City of New York the following day, and counsel was assigned. He was incarcerated until his release on bail on June 3, 1971, and an indictment was filed against him on June 4, 1971.

Five days later, on June 9, 1971, Roberson went to the offices of the Internal Affairs Division of the New York Police Department (hereinafter "IAD”) to file a complaint against his arresting officers. Once there, he was taken to a second floor office where he was interviewed by Sergeant Ryan, an IAD investigator. Sergeant Ryan did not advise the defendant of his constitutional rights. Roberson complained to Sergeant Ryan that the arresting officers had falsely charged him with possession of heroin when all he had were small quantities of marijuana and hashish, and that he had been beaten about the head with a blackjack. In giving this detailed account of the events surrounding his arrest, Roberson revealed that the arresting officers had also seized the weapon which they had discovered on a shelf in the loft where the defendant was sleeping when the officers entered. Thereafter, in response to an inquiry from Sergeant Ryan, Roberson acknowledged that the gun in question belonged to him.

The next morning, Roberson telephoned the New York City Civilian. Complaint Review Board (hereinafter "Review Board”) and informed them that he wished to lodge a complaint about unjust and unlawful conduct on the part of his arresting officers. He was asked to go to the Review Board’s offices for an interview, and it was suggested that he bring along any witnesses to the event. Later that same day, Roberson, Mangini and Splaine arrived at the Review Board, and after an initial inquiry at the front desk, Roberson was taken to a private office where he was interviewed by Captain Kenny. The officer identified himself as a police officer but did not advise the defendant of his constitutional rights.

Roberson repeated essentially the same account of the incident which he had given to the IAD. As the details of the event began to unfold, but prior to any damaging admission by the defendant, Captain Kenny interjected: "I should warn you before we get into this thing too heavily that under the Miranda warnings we have to warn you that anything you say here can be used against you in court and you understand that? And you still want to make a statement?” When Roberson replied yes, Captain Kenny continued the interrogation without ever giving the defendant the complete warnings as required by Miranda v Arizona (384 US 436). Subsequently Roberson once again revealed that a weapon had been seized by the arresting officers. Captain Kenny then asked Roberson if it was his gun and whether it was duly licensed, and Roberson made inculpatory statements in response to each inquiry.

We are of the opinion that the lower courts were in error in refusing to suppress the statements before the IAD and the Review Board. In People v Townes (41 NY2d 97), decided today, we held that statements made in the course of an interview before the Review Board cannot be regarded as voluntarily made and not the product of interrogation merely by reason of the fact that the interview from which they were obtained had been initiated by a defendant’s complaint with respect to illegal police conduct. Our decision in that case is clearly dispositive of those issues in this case as well.

We also find no merit in the People’s argument that the damaging statements were admissible since the interviews by the IAD and the Review Board were not part and parcel of the normal investigation of the particular criminal charges then pending against this defendant. The officers’ queries with respect to the possession of the gun were in no way related to any legitimate inquiry into the propriety of the police conduct or the nature of Roberson’s complaint. They could serve no purpose other than to aid the prosecution in meeting its heavy burden of establishing the ownership of a weapon found in an area occupied by several people and where no one individual could be said to have dominion and control of the weapon (see People v Lemmons, 40 NY2d 505, 514 [concurring opn]). By these interrogatories, the interviewing police officers transcended the legitimate scope of inquiry allowable in connection with an interview designed to vindicate the defendant’s constitutional rights, and it cannot be said that this probe was divorced from the criminal prosecution of this defendant.

Finally we turn to the prosecution’s reliance on People v McKie, (25 NY2d 19) to sustain the lower courts’ decision that the statements were properly admissible. Were this case to involve a statement blurted out spontaneously and voluntarily, though perhaps inadvertently, without interrogation, by a suspect who had neither been arrested nor arraigned nor indicted, we would be able to reach the same result as in McKie. Here, however, the statement was provoked by and the product of a thorough and detailed interrogation of an arraigned and indicted defendant in the absence of his assigned counsel.

This court has just recently, in People v Hobson (39 NY2d 479, 485), clearly articulated the fundamental importance of the availability of the advice of an attorney in the safeguarding of an individual’s rights, and the singular role of the right to counsel in insuring that such advice be made available. If we were to allow conduct of the type practiced in this case, the right to counsel would be vitiated.

Accordingly, the order of the Appellate Division should be reversed, the plea vacated, the statements before the IAD and the Review Board suppressed, and the case restored to its prepleading status.

Jasen, J. (dissenting).

I would affirm the order of the Appellate Division. The defendant, at times accompanied by friends, voluntarily initiated contact with the Department of Internal Affairs of the New York City Police Department and the Civilian Complaint Review Board and, equally voluntarily, submitted to interviews at the offices of these nonprosecutorial agencies. In my view, there is absolutely no impediment to the admission of the interviews in evidence at any trial to be had in this case. The defendant was not in custody. He appeared at the offices, not at any station house, in an effort to prosecute his claim against the police. The police did not compel him to report to their station house in furtherance of their prosecution against him. The defendant was free to come and go as he pleased; in fact, after giving both interviews he was permitted to leave the premises without arrest. He was not deprived of his freedom in any way, significant or insignificant.

Since the defendant was not in custody, it was not incumbent upon the police to administer preinterrogation warnings. (Miranda v Arizona, 384 US 436.) By granting interviews outside of custody without counsel, defendant waived his right to counsel. The rule of People v Hobson (39 NY2d 479), to which the majority alludes, provides only that a defendant in custody may not waive his right to counsel outside of the presence of counsel. However, this defendant was not in custody. (Compare People v Townes, 41 NY2d 97, 105 [concurring opn].) Hence, defendant was free to waive his right to counsel voluntarily out of the presence of counsel. I submit that the defendant, by making charges against the arresting police officers, repeatedly contacting police disciplinary officials, voluntarily reporting at their offices and granting interviews to them, waived his right to have his assigned counsel present at the interviews. Moreover, there is no claim nor is there any proof in this case that defendant would have been precluded from having counsel present if he had so desired.

As a matter of public policy, I do not believe that a defendant not in custody should be permitted in a pending criminal case to file accusations of police misconduct and yet not be held accountable, in court, for what he voluntarily admits. In the case of the honest complainant, statements made to police disciplinary investigators could hardly be damaging to the defense of criminal charges and the complainant would, naturally, co-operate with legitimate self-policing by the police. More difficulty is presented with the guilty complainant whose claim of police misconduct either lacks merit or arose after a legitimate police transaction. In the latter situation, the guilty party may, of course, have his rights vindicated, notwithstanding his own guilt. However, co-operation with an investigation designed to vindicate those rights would be expected and its absence would be damning. As for the case of the meritless complaint, both common sense and public policy should be set against permitting defendants to make accusations, often wild, against police officers, thereby impugning the integrity of the individual officers involved and the reputation of the police force as a whole. One important safeguard against the making of these kinds of idle charges is the knowledge that the charges and statements made in their support would be matters of public record, admissible in court where the false accuser has become the accused. The majority strips away that important safeguard and exposes the police to false charges and perjurious accusations for which the truly guilty are not to be held accountable. Irresponsible accusations may be made with impunity, since supporting statements are inadmissible in court, and I cannot see how this furthers the public interest in an honest police force and in the diligent administration of justice.

Therefore, I dissent.

Chief Judge Breitel and Judges Gabrielli, Jones, Fuchs-berg and Cooke concur with Judge Wachtler; Judge Jasen dissents and votes to affirm in a separate opinion.

Order reversed, plea vacated, statements before the Internal Affairs Division and the Civilian Complaint Review Board suppressed, the case restored to its prepleading status, and the case remitted to Supreme Court, New York County, for further proceedings on the indictment.

      . Although the revolver was found in a dwelling, the proper charge was possession of a weapon as a felony rather than as a misdemeanor since the defendant had previously been convicted of a crime.

      . The charges against Mangini and Splaine were dismissed.

      . In truth the arresting officers had never charged Roberson with possession of heroin, and it is conceded by him on this appeal that he was mistaken in his belief that they had.


author: Chief Judge Breitel.

text:
    Robert Nuernberger, Respondent, v State of New York, Appellant.
    (Claim No. 51615.)
    Argued November 16, 1976;
    decided December 20, 1976

      Louis J. Lefkowitz, Attorney-General (Peter J. Dooley and Ruth Kessler Toch of counsel), Albany, for appellant.

      Irving Fudeman, Buffalo, for respondent.
   Chief Judge Breitel.

Claimant, once convicted and imprisoned for assault arising from alleged incest with his 11-year-old daughter, sues the State for damages for wrongful imprisonment. He claims not innocence, but that he is entitled to damages because the County Court, which tried him, lacked "jurisdiction” to prosecute the assault unless the Family Court had first considered and transferred the matter to the County Court. The Appellate Division has twice held that claimant is entitled to damages for the reason assigned by him. The State appeals.

One may assume that the County Court is so lacking in power of adjudication over the subject matter as to be without competence to try the assault for which claimant had been tried. The issue, nevertheless, is whether the State is protected against a claim for false imprisonment when its administrative officials acted upon commitment papers issued by that court, a court otherwise of general criminal jurisdiction.

The order of the Appellate Division should be reversed and the claim dismissed.

A court, otherwise competent to determine the kind of cause before it, which has "jurisdiction” at least to determine in the first instance whether it may or should retain "jurisdiction”, has, at least, some competence over the cause. Hence, its process and mandates may not be equated with process and mandates emanating from a court totally lacking in power, any power, over subject matter. Moreover, even if such process or mandate is void, it does not follow automatically that one affected by any kind of "void” process or mandate is entitled to damages because those obliged to enforce the "void” process or mandates performed the duty imposed on them by law.

Some "unlawful” commands addressed to the law’s ministers and minions must be obeyed (see, e.g., Cox, Void Order and Duty to Obey, 16 U Chi L Rev 86, esp pp 99-110). That County Court lacked power to do more than ascertain the basic facts giving the Family Court first instance jurisdiction and to transfer the action to the Family Court does not render the County Court’s process or mandate a nullity. But for article 8 of the Family Court Act, which authorizes alternative treatment of certain otherwise criminal acts between persons of specified family relationships, the competence of the County Court to have tried and convicted claimant would be unquestioned (compare Family Ct Act, § 811, with NY Const, art VI, § 11, subd a). The concept of subject matter jurisdiction uncritically applied to award claimant damages against the State would work a grave injustice and would illustrate a recurring confusion over a term of unfortunately elastic meaning.

In April of 1966, claimant Nuernberger was indicted for three crimes committed on his 11-year-old daughter: incest, assault with intent to commit incest, and impairing the morals of a minor. Following a jury trial in Erie County Court, Nuernberger was convicted of both the assault and the impairment charges. The sentence imposed for the assault conviction was from three to six years; on the impairment count a suspended maximum sentence of one year was imposed. Unanimous affirmance of the conviction by the Appellate Division followed (People v Nuernberger; 31 AD2d 718). Undisputed is that claimant was imprisoned pursuant to the County Court commitment from April 14, 1967 until July 17, 1969, when his conviction for assault was reversed by this court and the proceedings transferred to the Family Court (People v Nuernberger, 25 NY2d 179, 183).

In the prior direct appeal this court noted that the record sustained claimant’s conviction for assault (25 NY2d, at p 183). Reversal, however, was required by the Family Court Act which reposes initially in the Family Court "exclusive original jurisdiction” over "acts which would constitute * * * an assault * * * between parent and child.” (Family Ct Act, § 812; see NY Const, art VI, § 13, subd b.) Of course, the Family Court may elect to transfer jurisdiction to an appropriate criminal court (Family Ct Act, §§ 811, 816, subd [a]; People v Johnson, 20 NY2d 220, 223).

Not more than three months after his release by the Family Court, on one year’s probation on consent, claimant sued in the Court of Claims. His argument was simple. Since initial exclusive original jurisdiction over the assault charge was in Family Court, the County Court in which he had been convicted and sentenced lacked jurisdiction over both the person of the claimant and the subject matter of the proceeding. Hence, he argues, any mandates issued by the County Court were null and void, affording no protection to the custodial authorities who acted in reliance on their validity.

To be sure, it has long been said and to some extent established, without examination evidently since -the common-law reports in this State, that process or mandate is void and hence cannot be relied upon where on its face it is apparent that the issuing court was without jurisdiction over the subject matter, that is, without competence to adjudicate the kind of cause before it (Savacool v Boughton, 5 Wend 170, 172; cf. Harty v State of New York, 29 AD2d 243, 244, affd 27 NY2d 698; Douglas v State of New York, 269 App Div 521, 525, affd 296 NY 530; see, also, Troutman v State of New York, 273 App Div 619, 621-622, pertaining to jurisdiction over the person). In general, the statement is true, except that it does not account for the power of a court to determine that it has no kind of jurisdiction over the category of cause before it (Family Ct Act, § 813; see Restatement, Judgments, § 10, Comment a; see, also, Dobbs, Validation of Void Judgments: Bootstrap Principle, 53 Va L Rev 1003, 1005-1006, 1009-1014).

This case, however, does not yield to the facile classification suggested by the traditional statement of the rule. To begin with, not every crime between members of a family is cognizable as a Family Court offense (Family Ct Act, § 812; People v Lewis, 29 NY2d 923, 924 [incest not within Family Court’s exclusive original jurisdiction]). Illustrative is the impairment charge for which claimant was convicted (People v Nuernberger, 25 NY2d 179, 182, supra). Had the sentence imposed for impairing the morals of a minor not been suspended, there would be no question but that claimant could have been committed to prison by order of County Court. And even were the instant conviction so clearly one to be initially resolved only in Family Court, the custodial authorities criticized by claimant may have assumed, reasonably, that the County Court proceeding took place only after the Family Court determined, as it could under the statute, that the matter should be criminally tried (Family Ct Act, § 816). Not until this court reversed was it "clear” that the commitment issued pursuant to the judgment of conviction suffered from a "facial” invalidity, if that it was.

It is an encyclopedia commonplace that "[w]here a court is without jurisdiction in the particular case, its acts and proceedings can be of no force or validity, and are a mere nullity and void” (21 CJS, Courts, § 116). However deceptively attractive and convenient, this commonplace is both too simple and too broad. Definitions of "jurisdiction” are too varied and the consequences flowing from defective "jurisdiction” too diverse. See Lacks v Lacks, 41 NY2d 71, 74, decided herewith; Ehrenzweig, Conflict of Laws, § 25, pp 72-73; Leflar, American Conflicts Law, § 3, pp 4-6.) In fact, discerning analysis would reveal that the absence of power of adjudication in a particular cause does not, in and of itself, automatically deprive a court’s acts and proceedings of their validity.

Indeed, this court has recognized that a defect in a court’s "jurisdiction”, because a defendant had not been sentenced for a six-year period after verdict, may be the basis for habeas corpus relief, but no ground on which to recover damages for false imprisonment. Thus, in People ex rel. Harty v Fay (10 NY2d 374) defendant was successful in procuring his release from prison but his subsequent claim for false imprisonment was rejected (Harty v State of New York, 27 NY2d 698, affg 29 AD2d 243, supra).

In rejecting the damage claim, this court evidently accepted the Appellate Division interpretation of the prior Court of Appeals holding of lack of jurisdiction as really only illegality of sentence. Whether this reassessment was calculated to avoid the unfortunate consequences routinely associated with defective "jurisdiction” or to recast the prior holding in the light of the versatile use of the term "jurisdiction” is not important. What is important is that from a comparison of the results in the two litigations, one must conclude that notwithstanding the absence of "jurisdiction” for purposes of sustaining the sentence involved, power remained with the sentencing court sufficient to protect officials who carried out its mandates. In short, the Harty cases are an ideal example that "jurisdiction” is not a term of a single meaning and none of its uses has an invulnerable definition.

In line with the glib statement that absence of subject matter jurisdiction alone renders all process and mandates emanating from a court null, some courts have not made criminal the acts of a person resisting an arrest made pursuant to a warrant issued by a court said to be without "jurisdiction” (see People v Craig, 59 Cal 370; Criminal Liability for Obstructing Process as Affected by Invalidity or Irregularity of Process, Ann., 10 ALR3d 1146, esp § 8; see, also, Witherspoon v State, 42 Tex Cr Rep 532, 536). In this State, however, automatic recourse to the purported rule with all its unlimited generalities has been challenged (People v Warren, 5 Hill 440; cf. People v Briggs, 19 NY2d 37, 41-42). As noted in People v Warren (supra, p 440), involving a parallel problem and analysis, "[ajlthough the inspectors had no jurisdiction of the subject matter, yet as the warrant was regular on its face, it was a sufficient authority * * * to make the arrest, and the defendant had no right to resist the officer.”

Conclusive in demonstrating that the voidness rule is not absolute is the exception that, in some circumstances, a court’s erroneous determination that it has "subject matter jurisdiction” is subject to the doctrine of res judicata and, hence, is not vulnerable to collateral attack (O’Donoghue v Boies, 159 NY 87, 99, 103, 105-106 [opns per O’Brien, J., and Parker, Ch. J.]; Bolton v Schriever, 135 NY 65, 74; Restatement, Conflicts 2d, § 97, and Comments b, c; Restatement, Judgments, § 10, subd 1; Goodrich, Conflict of Laws [4th ed], § 23, p 38; Ehrenzweig, Conflict of Laws, § 57, subd a, pp 207-208; see Matter of Doey v Howland Co., 224 NY 30, 38-39; cf. Vander v Casperson, 12 NY2d 56, 59 [jurisdiction over defendants]). While the scope of this exception is no clearer than the rule to which it is an exception, key is that courts without so-called "subject matter jurisdiction” nonetheless issued binding orders. (See, generally, Dobbs, 53 Va L Rev 1003, 1009-1014.)

By now, it should be evident that the competence of a court to entertain matters in categories over which it has power to adjudicate may be quite different from its power to adjudicate particular causes which arise in the categories (see Bullymore v Cooper, 46 NY 236, 241-242; cf. O’Donoghue v Boies, 159 NY 87, 103, 107-108 [opn per Parker, Ch. J.], supra). As early as 1884, general "jurisdiction over the subject matter” was distinguished from jurisdiction in particular causes: "a ministerial officer is protected in the execution of process regular on its face, issued by a court, officer or body having general jurisdiction of the subject-matter, or jurisdiction to issue it under special circumstances, although in fact jurisdiction of the person or subject-matter did not exist in the particular case.” (Woolsey v Morris, 96 NY 311, 315.) But even this distinction does not solve all the problems.

The voidness rule is applied sketchily. The exceptions to the rule are applied equally sketchily. The rule and its exceptions were engendered by independent and different purposes. By encouraging self-help with impunity, the rule preserves an effective safeguard against judicial usurpation of power. The exceptions protect administrative officials from the consequences of doing what they are required to do by law (Woolsey v Morris, 96 NY 311, 315, supra).

And, of course, the troubles and the tensions between the rule and exceptions are both caused by and sheltered by the elastic and versatile definition and use of the term "jurisdiction”. Sometimes the word means power to adjudicate (e.g., Hunt v Hunt, 72 NY 217, 228; Cooper v Davis, 231 App Div 527, 529). Sometimes it means power to enforce orders against a person (e.g., People ex rel. Harty v Fay, 10 NY2d 374, 379, supra). Sometimes it means power to execute commitments against particular property (e.g., Woolsey v Morris, 96 NY 311, 315-316, supra). Sometimes it means power to adjudicate over a category of cases and another time it means power to adjudicate a particular case (compare O’Donoghue v Boies, 159 NY 87, 103, 107-108 [Parker, Ch. J.], with id., at pp 97-99 [O’Brien, J.], supra). Sometimes this lack is fatal to the validity of any act of the tribunal. And sometimes it results in valid process or mandate because the issuing court, as in this case, was not wholly without competence to adjudicate something in the action before it.

With respect to Nuernberger’s claim the result should be evident. It may be sustained only if the confusion in the term and concept of "jurisdiction” is allowed to generate still another anomaly in law and justice. The fact is that the County Court had general jurisdiction over criminal actions of the very categories for which claimant was tried and convicted. It also had at least the initial power to adjudicate whether the fact complex required transfer to the Family Court because of its initial exclusive original jurisdiction. Hence, the court was not without some power to adjudicate and its fault was no greater than that of error which remains uncorrected until the appeal was finally resolved in the State’s highest court. To say that in such circumstances the mandates of the County Court were void is to deny the reality of the legally constituted courts which issued those mandates and the recognition which would be accorded those mandates in other actions and proceedings until reversal on direct appeal.

Accordingly the order of the Appellate Division should be reversed, without costs, and the claim dismissed.

Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur; Judge Gabrielli taking no part.

Order reversed, etc.


author: Chief Judge Breitel. Jasen, J. (dissenting).

text:
    The People of the State of New York, Respondent, v Edward Wright, Appellant.
    Argued September 17, 1976;
    decided December 22, 1976

      Michael L. Hertzberg and William E. Hellerstein, New York City, for appellant.

      Eugene Gold, District Attorney (Jeffrey Speiser of counsel), Brooklyn, for respondent.
   Chief Judge Breitel.

Defendant, convicted of murder and sentenced from 20 years to life, appeals. He asserts that error was committed on the jury trial which resulted in his conviction. Only one of the errors asserted merits consideration by this court, namely, that a prior out-of-court statement by one of the People’s witnesses, used to bolster his testimony, badly battered on cross-examination, was admitted in violation of CPL 60.35.

It is concluded that the error was prejudicial and might well have influenced the jury in reaching its verdict. The questioned statements were those of the only eyewitness who could directly identify defendant as the aggressor in the street incident which resulted in death to the victim. Consequently, there should be a reversal and a new trial.

On December 7, 1971, defendant and the decedent had a street fight in which decedent was stabbed several times, fatally, perhaps with decedent’s own knife, if defendant’s version be accepted. So much is undisputed in the case. The issue of fact was and is whether defendant acted in self-defense: whether defendant defensively caused the knife while still in decedent’s hand to be thrust into decedent’s body, or whether defendant was the aggressor initially or continued to stab decedent when the need for defensive action had passed.

Two witnesses testified that a group stood around an "elderly” man, presumably the victim, a man of 45 years of age; that a member of the group garbed in a brown leather coat was observed to lunge at decedent. One of the witnesses described the lunger as the tallest man in the group. One described the coat as long, the other as a jacket. A third witness, Rivera, was the only witness who identified defendant facially as the man in the brown coat. He testified in support of his identification that he had seen defendant in the neighborhood on prior occasions. On cross-examination he repeated these observations, saying however that he had never spoken to defendant, but he was then induced to say that he had never seen defendant before the incident. On redirect examination Rivera testified that he did not remember his earlier testimony on the Friday before that he had seen defendant before the stabbing incident, and he did not recall giving the police a statement to that effect on the morning after the stabbing. In the course of redirect examination the prosecutor, over objection, read into the record excerpts from a transcript of conversation between Rivera and another in which the witness stated he had seen defendant a number of times prior to the stabbing. Rivera said that he did not recall his prior testimony or the prior statements—that he did not remember anything.

It is the use of Rivera’s prior statements which is at the root of the problem in this case. The witness, Rivera, was testifying after his own conviction and sentence for robbery. He had been a heroin addict and was so at the time he observed the stabbing incident. He, on redirect examination, was asked with questionable propriety by the prosecutor whether he had told the prosecutor the previous week that he was in fear for himself and his family in testifying, and he answered yes. Even if one assumes that his answer to the "fear” question was truthful, error in bolstering the testimony of the only witness who directly identified defendant as one who had assumed an aggressive posture in the stabbing was critical.

The issue in the case was never whether defendant was at the scene of the stabbing. That much was conceded. The other witnesses who placed defendant at the scene (Raffo and Alverado), or identified, more or less, the brown coat of defendant as that observed at the scene, did not touch on the crux of the case. On this view the erroneous use of Rivera’s prior statements was prejudicial.

Use of prior statements by witnesses in criminal actions is now codified in the Criminal Procedure Law. CPL 60.35 reads as follows:

"1. When, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath contradictory to such testimony.

"2. Evidence concerning a prior contradictory statement introduced pursuant to subdivision one may be received only for the purpose of impeaching the credibility of the witness with respect to his testimony upon the subject, and does not constitute evidence in chief. Upon receiving such evidence at a jury trial, the court must so instruct the jury.

"3. When a witness has made a prior signed or sworn statement contradictory to his testimony in a criminal proceeding upon a material issue of the case, but his testimony does not tend to disprove the position of the party who called him and elicited such testimony, evidence that the witness made such prior statement is not admissible, and such party may not use such prior statement for the purpose of refreshing the recollection of the witness in a manner that discloses its contents to the trier of the facts.”

The prior statements of Rivera did not qualify for use. They were not subscribed by the witness, nor had he given his answers under oath, the alternatives allowed by subdivision 1. Nor did the prosecutor in attempting to use the prior statements, even if they had been qualified under subdivision 1, conform to the requirements of subdivision 3. The contents of the statements were disclosed to the jury, the trier of the facts.

It might be said that Rivera’s testimony at the trial the previous Friday was available to impeach him. Of course, it was. But its impact might well be only that on Friday he was the carefully prepared but reluctant witness, whereas on Monday he now was truthful. The importance of the statements the morning following the stabbing would be crucial, because they were made close to the time of the incident and before motivations to prevaricate at behest of police or defendant would have been developed.

In summary, the use of the statements was gross error, preserved by proper objection. Without Rivera’s testimony, defendant might well have been acquitted. Neither of the other two witnesses, Raffo or Alverado, could directly identify or describe defendant as the aggressor, initially, or as the fight persisted.

Accordingly, the order of the Appellate Division should be reversed, the conviction vacated, and a new trial ordered.

Jasen, J. (dissenting).

I dissent and vote to affirm the conviction of murder. Based on the uncontroverted facts and circumstances present here, the improper manner of rehabilitating one of the witnesses should not require a reversal. The defendant, in a signed statement, admitted that he was present at the scene of the crime and that he had stabbed the decedent three times. He also admitted that at the time he was wearing a brown coat. This confession was confirmed by the testimony of no less than three eyewitnesses. Each stated that he saw a young, tall man in a brown coat strike an elderly man, the decedent, with a knife. Moreover, Monserrat Rivera, one of the three eyewitnesses, specifically identified the defendant in court as the young, tall man he saw chasing an elderly man and stabbing him five times. The defendant offered no evidence and called no witnesses to refute the prosecution’s proof.

The majority recognizes that the only "issue of fact was and is whether defendant acted in self-defense.” As to this issue, there was substantial proof that the defendant was the aggressor. The decedent received five stab wounds, three of which involved vital organs. Disproving any assertion that the defendant had acted defensively, all of the eyewitnesses described how the young, tall man wearing a brown coat had chased and attacked the elderly victim.

The defendant does not challenge the admissibility of Rivera’s repeated in-court identification of the defendant as the young, tall man wearing a brown coat who had stabbed the decedent. Rather, he argues that the defendant was denied a fair trial by the People’s improper use of a prior out-of-court statement in attempting to rehabilitate part of Rivera’s testimony pertaining to having seen the defendant in the neighborhood prior to the stabbing. While I would hold that the method used by the prosecutor to rehabilitate Rivera was improper, a reversal of the conviction is not called for. In view of the defendant’s incriminating admission of stabbing the decedent three times, the jury could not conceivably have found that the defendant did not stab the decedent. The identity of the person stabbing the decedent is conceded. Thus, the improper rehabilitation of Rivera as to whether he could have recognized the defendant’s face at the time of the stabbing based on having seen the defendant in the neighborhood prior to the stabbing was irrelevant to the accuracy of the descriptions of how the self-confessed young, tall killer, wearing a brown coat, actually stabbed the elderly decedent. The rehabilitation error does not even relate to the trial’s only real dispute—whether the young, tall man wearing a brown coat or the elderly decedent was the aggressor. Since there is no "significant possibility” that the jury’s conclusion would have been different if the rehabilitation had not occurred, the error was harmless and does not warrant a reversal of defendant’s conviction of murder. (People v Crimmins, 36 NY2d 230, 242.)

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

Order reversed, etc.