author:
Chief Judge Cooke.
      Wachtler, J.

text:
    In the Matter of Richard Beach, Appellant, v Donald J. Shanley, as Special District Attorney of Rensselaer County, Respondent.
    Argued March 19, 1984;
    decided May 10, 1984

      POINTS OF COUNSEL

      Peter L. Danziger and Salvatore D. Ferlazzo for appellant.
    I. Section 79-h of the Civil Rights Law permits reporter Beach, to withhold the identity of his news source from the Grand Jury under the facts of the instant case, (jHennigan v Buffalo Courier Express Co., 85 AD2d 924; Greenburg v CBS Inc., 69 AD2d 693; People [Fischer] Dan, 41 AD2d 687, 32 NY2d 613; People v Monroe, 82 Mise 2d 850; Hammelburger v Foursom Inn Corp., 54 NY2d 580; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; People v lannaccone, 112 Mise 2d 1057; People v Graham, 55 NY2d 144; Oak Beach Inn Corp. v Babylon Beacon, 92 AD2d 102; Wilkins v Kalla, 118 Mise 2d 34.) II. Newscaster Beach has the constitutional right not to appear and testify at the instant Grand Jury proceedings. (Branzburg v Hayes, 408 US 665; Gibson v Florida Legislative Committee, 372 US 539; Saxbe v Washington Post Co., 417 US 843; United States v Burke, 700 F2d 70; Baker v F & FInv., 470 F2d 778, 411 US 966; Zerilli v Smith, 656 F2d 705; United States v Orsini, 424 F Supp 229; People v Bova, 118 Mise 2d 14; Matter of New York State Dept, of Taxation & Fin. v New York State Dept, of Law, 44 NY2d 575.)

      Donald J. Shanley, Special District Attorney, respondent pro se.

    I. The issuance of the subpoena to appellant was justified. (Blair v United States, 250 US 273; Matter of Morse, 42 Mise 664; People v “John Doe”, 247 App Div 324, 272 NY 473; Matter ofMaison & Co. v Hynes, 50 AD2d 13; United States v Bisceglia, 420 US 141.) II. There is here no constitutional privilege. (Branzburg v Hayes, 408 US 665; People v Monroe, 82 Mise 2d 850; Matter of Andrews v Andreoli, 92 Mise 2d 410; People v Marahan, 81 Mise 2d 637; Matter of Grand Jury Proceedings [Doe], 86 AD2d 672; People v Dupree, 88 Mise 2d 791.) III. There is here no statutory privilege. (.Matter of Dan v Simonetti, 80 Mise 2d 399; People [Fisher] v Dan, 41 AD2d 687, 32 NY2d 613, 764, 967; Matter of Grand Jury Proceedings [Doe], 86 AD2d 672; Matter of Jerry v Board ofEduc., 35 NY2d 534.)

      Jack C. Landau and Judy D. Lynch for The Reporters Committee for Freedom of the Press, amicus curiae.

    I. The New York Shield Law is absolute and does not conflict with section 6 of article I of the New York State Constitution. CBaker vF &F Inv., 470 F2d 778, 411 US 966; Matter of Wood v Hughes, 9 NY2d 144; Branzburg v Hayes, 408 US 665; Matter of Petroleum Prods. Antitrust Litigation, 680 F2d 5; Zerilli v Smith, 656 F2d 705; Matter of New York State Dept, of Taxation & Fin. v New York State Dept, of Law, 44 NY2d 575; Matter of Priest v Hennessy, 51 NY2d 62; Matter of Vanderbilt [Rosner — Hickey], 57 NY2d 66; People v Percy, 74 Mise 2d 522, 45 AD2d 284, 38 NY2d 806; People v Frank, 101 Mise 2d 736.) II. The court below misread Branzburg v Hayes which established a qualified constitutional reporters’ privilege. (Branzburg v Hayes, 408 US 665; Zerilli v Smith, 656 F2d 705; Bruno & Still-man v Globe Newspapers Co., 633 F2d 583; United States v Cuthbertson, 630 F2d 139; Miller v Transamerican Press, 621 F2d 721; Silkwood v Kerr-McGee Corp., 563 F2d 433; United States v Steelhammer, 539 F2d 373; Farr v Pritch-ess, 522 F2d 464, 427 US 912; Baker v F &F Inv., 470 F2d 778; Bursey v United States, 466 F2d 1059.)

      Floyd Abrams, Edward P. Krugman, Katharine P. Darrow and Alice Neff Lucan for The New York Times Company and others, amici curiae.

    I. The New York Constitution requires that these subpoenas be quashed. (.Branzburg v Hayes, 408 US 665; Baker v F & F Inv., 470 F2d 778, 411 US 966; Matter of Petroleum Prods. Antitrust Litigation, 680 F2d 5; Zerilli v Smith, 656 F2d 705; Silkwood v Kerr-McGee Corp., 563 F2d 433; Wilkins v Kalla, 118 Mise 2d 34; United States v Burke, 700 F2d 70; United States v Cuth-bertson, 630 F2d 139, cert den sub nom. Cuthbertson v CBS, Inc., 449 US 1126; People v Ferber, 57 NY2d 256; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196. II. The New York Shield Law requires that these subpoenas be quashed. (Landmark Communications v Virginia, 435 US 829; Smith v Daily Mail Pub. Co., 443 US 97; Matter of

      Wood v Hughes, 9 NY2d 144; Matter of Grand J ury Investigation, 59 NY2d 130; People v McAlpin, 50 Mise 2d 579; Whalen v Roe, 429 US 589.)

      Dean Ringel, Victor A. Kovner, Steven Klugman, Eric M. Freedman, Ralph N. Gimbel, Robert P. Marshall, Jr., and Allen Y. Shaklan for Committee on Communications Law of the Association of the Bar of the City of New York, amicus curiae.

    I. The Shield Law clearly applies to these subpoenas and is constitutional as so applied. {Matter of Wood v Hughes, 9 NY2d 144; Matter of New York State Dept, of Taxation & Fin. v New York State Dept, of Law, 44 NY2d 575; Matter of Grand Jury Investigation, 59 NY2H 130; People v McAlpin, 50 Mise 2d 579.) II. The subpoenas should be quashed under the New York and United States Constitutions. {Branzburg v Hayes, 408 US 665; Baker v F & F Inv., 470 F2d 778, 411 US 966; United States v Burke, 700 F2d 70; Landmark Communications v Virginia, 435 US 829; New York Times Co. v United States, 403 US 713; Matter of Petroleum Prods. Antitrust Litigation, 680 F2d 5; Matter of Selcraig, 705 F2d 789; Zerilli v Smith, 656 F2d 705; Silkwood v Kerr-McGee Corp., 563 F2d 433; Wilkins v Kalla, 118 Mise 2d 34.)

      John W. Tabner and Edward M. Scher for New York State Broadcasters Association, Inc., amicus curiae.

    Given the facts of the instant case, section 79-h of the Civil Rights Law of the State of New York does not violate section 6 of article I of the New York State Constitution. {Branzburg v Hayes, 408 US 665; Matter of Seitz v Drogheo, 21 NY2d 181; People ex rel. McNeill v Marrow, 32 AD2d 375; People v Epton, 19 NY2d 496.)
   OPINION OF THE COURT

Chief Judge Cooke.

In enacting the so-called “Shield Law,” the Legislature expressed a policy according reporters strong protection against compulsory disclosure of their sources or information obtained in the news-gathering process. As the statute is framed, the protection is afforded notwithstanding that the information concerns criminal activity and, indeed, even when revealing the information to the reporter might itself be a criminal act. Consequently, in the circumstances here, a subpoena requiring a television reporter to appear before a grand jury investigating the unauthorized disclosure of another grand jury’s report should be quashed.

In April 1982, the Rensselaer County Sheriff suspended a lieutenant and a captain for their alleged involvement in retaining or selling guns that had been turned over to the Sheriff’s Office for destruction. A grand jury was convened to investigate the office. No indictments were issued, but, on October 26, 1982, three reports were handed up to a Supreme Court Justice.

One report was immediately released to the public. Among other things, the report criticized the adequacy of the Sheriff’s supervision and the lack of hiring standards. The other two reports were ordered sealed pursuant to CPL 190.85. The District Attorney revealed that these reports recommended the removal of two unidentified public officials.

Petitioner, a reporter for Station WRGB-TV in Schenectady, was contacted by a source whom he refuses to identify. In return for petitioner’s express agreement to guard the individual’s identity, the source gave information about at least one of the sealed reports. On October 27 and 28, Station WRGB broadcast reports that the Sheriff was one of the public officials whose removal had been recommended.

On November 9, petitioner was served with a subpoena ad testificandum to appear the next day before a Rensse-laer County Grand Jury that was investigating the “disclosure of a certain sealed Grand Jury report.” At that point, no one else had testified or had been subpoenaed before the Grand Jury. Petitioner moved to quash his subpoena on November 10. Before he could serve his papers, the District Attorney disqualified himself because of the possibility that someone in his office was responsible for disclosing the sealed report’s contents. The respondent in this proceeding was appointed as Special District Attorney, and he withdrew the November 9 subpoenas.

Respondent had a subpoena duces tecum issued on January 17,1983, directed to petitioner. The basic thrust of the Grand Jury’s investigation was to determine whether the contents of the sealed report were disclosed by a grand juror or a public official or public employee in violation of section 215.70 of the Penal Law. Petitioner again moved to quash the subpoena, arguing that New York’s Shield Law (Civil Rights Law, § 79-h) provided him with an absolute privilege to keep his source’s identity private. County Court granted petitioner’s motion.

The Appellate Division disagreed and reinstated the subpoena. That court reasoned that, in the present circumstances, the statute was invalid because it impaired a grand jury’s power to investigate public officials (see NY Const, art I, § 6). This court now reverses.

The parties ask us to decide if a reporter may invoke the Shield Law when the very disclosure of information by the confidential source may have been a criminal act. As a preliminary matter, though, it has been suggested that the present proceeding is premature as the Shield Law creates an evidentiary privilege and a protection against contempt orders, but it does not authorize the quashing of grand jury subpoenas. Under the circumstances of this matter, the motion to quash is not inappropriate.

Generally, a grand jury’s power to issue subpoenas is unfettered. An attempt to avoid a subpoena will be successful only if the movant can show that the evidence sought is immaterial or irrelevant, or that “the futility of the process to uncover anything legitimate is inevitable or obvious” (see Matter of Edge Ho Holding Corp., 256 NY 374, 382). As with many rules, application of this principle varies according to the factual context. To the extent that a subpoena seeks testimony, the assertion that the contemplated testimony is subject to a privilege will not usually justify quashing the subpoena (see id., at pp 381-382; Matter of Hirshfield v Craig, 239 NY 98, 118; Matter of Pennock v Lane, 18 AD2d 1043, 1044; 2A Weinstein-Korn-Miller, NY Civ Prac, par 2304.13, p 23-73). In that event, litigation must await such time as when the witness refuses to answer the question on the ground that privileged information is concerned and an attempt is made to compel a response. A different situation prevails when a subpoena seeks the production of documents that are assertedly subject to a privilege. The privilege’s purpose is thwarted if the documents must be revealed before it will be determined whether their contents are protected against disclosure (see Matter of Hirshfield v Craig, supra). Consequently, a subpoena duces tecum may be attacked by a motion to quash before production is made or the witness appears before the Grand Jury (see Matter of Grand Jury Investigation, 59 NY2d 130; 2A Weinstein-Korn-Miller, NY Civ Prac, par 2304.13).

Petitioner’s application to quash the subpoena duces tecum is not premature insofar as the subpoena demanded that petitioner produce his notes, records, and other physical materials that may be privileged under the Shield Law. More troubling is petitioner’s attempt to avoid any appearance before the Grand Jury. As noted, the assertion of a testimonial privilege normally must be withheld until a question is posed. Tile factual setting of the present appeal obviates this requirement. Respondent concedes that the entire focus of the Grand Jury’s inquiry would be on the identity of petitioner’s confidential source and other information that petitioner obtained in the course of his journalistic activities, which would be at least nominally within the scope of the Shield Law’s privilege. All that would be gained by requiring the parties to go through the formality of appearing before the Grand Jury is that a court would have a transcript of petitioner’s giving his name, address, and occupation before refusing to answer any questions. In view of respondent’s explicit concession in our court as to the sole objective of the service of the subpoena on petitioner, it is considered that the ultimate substantive issue presented for resolution is the equivalent of whether petitioner could be punished for contempt in the event of his failure to disclose his source to the Grand Jury.

It bears noting that this is not intended to undermine a grand jury’s power to issue subpoenas, either generally or as to the subpoenas under consideration here. Indeed, it would not have been an abuse of discretion for the courts below to have dismissed as premature the motion to quash insofar as it related to petitioner’s obligation to appear and testify before the Grand Jury.

Having disposed of this procedural point, attention now turns to the merits of petitioner’s assertion that the information sought is protected under section 79-h of the Civil Rights Law.

New York first adopted a Shield Law 14 years ago (L 1970, ch 615). In approving the legislation, Governor Rockefeller stated:
“The bill protects journalists and newscasters from charges of contempt in any proceeding brought under State law for refusing or failing to disclose information or sources of information obtained in the course of gathering news for publication.
* * *
“Freedom of the press is one of the foundations upon which our form of government is based. A representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news.
“The threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information.” (NY Legis Ann, 197Ü, p 508.)

Over the next few years, a number of courts held that the statute afforded less than an absolute shield (see, e.g., People [Fischer] v Dan, 41 AD2d 687, app dsmd 32 NY2d 764; Matter of Wolf v People, 69 Misc 2d 256, affd 39 AD2d 864; Matter of WBAI-FM, 68 Misc 2d 355, affd sub nom. Matter of WBAI-FM v Proskin, 42 AD2d 5). In 1975, the Legislature reacted by adding a provision prohibiting grand juries from pursuing contempt proceedings against reporters (see L 1975, ch 316). Further judicial circumscriptions of the statute resulted in its further amendment by the Legislature to strengthen its protection for reporters (see L 1981, ch 468). The sponsor of the 1981 bill expressly described its purpose to “correct loopholes and fill gaps in the existing statute” (Memorandum of Assemblyman Steven Sanders, Governor’s Bill Jacket, L 1981, ch 468, p 1). “The original intent of the Legislature in 1970 is to be reinforced, and strengthened. Case history makes it abundantly clear that the courts have been all too often disinclined to follow the letter or even the spirit of the existing law. This bill reinforces the original provisions and expands on them definitively” {id.).

The current statute embodies the Legislature’s intent to grant a broad protection. “News” is defined as “written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare” (Civil Rights Law, § 79-h, subd [a], par [8]). In effect, the statute precludes any body from having a reporter held in contempt, fined, or imprisoned for refusing to disclose news or the identity of a source, regardless of whether the information is highly relevant to a governmental inquiry and whether the information was solicited or volunteered (Civil Rights Law, § 79-h, subds [b], [d]). Moreover, “[a]ny information obtained in violation of the [statute] shall be inadmissible in any action or proceeding or hearing before any agency” (Civil Rights Law, § 79-h, subd [c]).

The inescapable conclusion is that the Shield Law provides a broad protection to journalists without any qualifying language. It does not distinguish between criminal and civil matters, nor does it except situations where the reporter observes a criminal act (see NY Legis Ann, 1970, pp 33-34). Although this may thwart a grand jury investigation, the statute permits a reporter to retain his or her information, even when the act of divulging the information was itself criminal conduct. “Even if one were to be in disagreement with the wisdom of the policy underlying section 79-h and no matter how heinous the crime under investigation, the courts are not free to ignore the mandate of the Legislature and substitute a policy of their own” (Matter of WBAI-FM v Proskin, 42 AD2d 5, 10, supra [Cooke, J., dissenting]; see Matter of City Council v Goldwater, 284 NY 296, 302).

It is conceded that the information sought from petitioner comes within the scope of the Shield Law and, if no exceptions exist, then the statutory protection applies. Respondent contends that, in the immediate situation, section 79-h is invalid because it runs afoul of the constitutional proscription against laws that suspend or impair a grand jury’s power to inquire into willful misconduct by a public officer (NY Const, art I, § 6). This is not persuasive.

At the outset, it must be remarked that the Grand Jury investigation here is not necessarily one into willful misconduct by a public officer. In its lengthy list of persons subject to criminal sanctions for unlawful Grand Jury disclosure, section 215.70 of the Penal Law includes public officers, public employees, and grand jurors, whose status is probably not that of “public officer.” Thus, the Grand Jury’s attempt to ascertain who divulged the contents of the sealed report may result in the discovery of willful misconduct by a public officer, but it may just as readily determine that someone other than a “public officer” was the transgressor.

The constitutional provision against impairing a grand jury’s power was not intended to prevent the Legislature from creating evidentiary privileges or their equivalent that have an incidental impact on investigations into willful misconduct by public officers. This court long ago noted that “the proposal was advanced solely for the purpose of making certain that the Legislature of this State would never be able to * * * take from the grand jury its authority to investigate and indict for alleged criminal acts by public officials” (Matter of Wood v Hughes, 9 NY2d 144, 150 [emphasis added]). The particular events that triggered the amendment were “[t]hat at a special session of the [Pennsylvania] Legislature a statute was adopted suspending the grand jury investigation into a public official, and depriving the grand jury of the power to act in the matter” (3 Rev Record of Constitutional Convention of 1938, p 2572). The sponsor’s concern was stated on the record (id., at pp 2570-2571):

“We have had, within the last few weeks, the experience in a sister state of the legislature, acting together with the Governor, halting a grand jury investigation into a public official’s misconduct on the theory that the legislature would investigate itself and its own officials, and that the grand jury would be deprived of the power to do so or at least its power would be suspended.
“The function of grand juries in the investigation of the misconduct of public officials is one of the most important functions served by the grand jury system today. The existence of an independent agency drawn from the citizenry at large for that purpose is one of the most estimable features of the American system of government. It has served well. Recent experience has demonstrated that * ⅜ ⅜ it is not beyond the reach of legislative interference. And the purpose of this amendment is to protect, at least, that function of the grand jury against legislative interference.
“ * ⅜ * If a state as highly civilized as the State of Pennsylvania, having substantially the same type of cosmopolitan population as the State of New York, can undertake to do what the legislative body and the Governor of that state undertook to do, we ought here and now in our State guarantee that nothing of that kind can ever happen in New York State.”

Nothing suggests that the drafters intended to abrogate evidentiary privileges, or protections such as are afforded by the Shield Law, at least not where the result would only indirectly hinder a grand jury’s power to investigate.

Indeed, under respondent’s argument, all statutory restrictions on a grand jury’s ability to investigate public officers would be invalid. Thus, the spousal, attorney-client, physician-patient, clergy, psychologist, and social worker privileges (CPLR 4502-4505, 4507, 4508) would all be ineffective. Similarly, a grand jury investigating corruption would be able to give complete immunity to private citizens who have engaged in bribery or extortion, regardless of a prosecutor’s desire to obtain waivers (cf. CPL 190.50, subds 3, 4). Finally, to the extent that the normal rules of evidence are applicable to grand juries (CPL 190.30, subd 1), a question might be raised as to their force when they operate to “impair” an investigation of a public officer.

There can be no question that the drafters of the 1938 amendment to section 6 of article I did not intend the consequences that would result from this hypertechnical interpretation of “impair or suspend.” That language was meant to prevent legislation that directly restricts a grand jury’s right to inquire or that, although facially neutral, would have its primary impact by limiting investigations of public officers. The Shield Law is not such a statute. Its impact on investigations of public officers is incidental. It is, therefore, constitutionally valid.

Petitioner and some of the amici curiae invite the court in this case to enunciate a reporter’s privilege under the State Constitution’s guarantee of freedom of the press (NY Const, art I, § 8), which would exist wholly apart from the statutory privilege. This the court declines to do. Courts should not decide constitutional questions when a case can be disposed of on a nonconstitutional ground (see People v Felix, 58 NY2d 156, 161; People v Carcel, 3 NY2d 327, 330; Matter of Peters v New York City Housing Auth., 307 NY 519, 527; Holroyd v Town of Indian Lake, 180 NY 318, 325).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion to quash the subpoena should be granted.

Wachtler, J.

(concurring). In my view the Grand Jury subpoena directed to the reporter in this case was properly quashed, not only because the Shield Law affords a privilege in this instance, but also because the reporter and the press generally should be entitled, as a matter of right, to claim this protection under the State Constitution. Since the Grand Jury has asserted a right to compel the reporter’s testimony as an incident to its general power to investigate under the State Constitution (NY Const, art I, § 6), we must recognize that the State Constitution also guarantees a free press (NY Const, art I, § 8) and should leave no doubt that it necessarily affords a reporter or newspaper the right not to be held in contempt for refusal to disclose news sources to State investigators or investigative bodies, irrespective of any privileges granted by the Legislature now or in the future.

The fact that the Supreme Court has held the First Amendment applicable to the States does not eliminate the right or the need of this State to provide a distinct guarantee of freedom of the press under the State Constitution (PruneYard Shopping Center v Robins, 447 US 74, 81). It is often forgotten that diversity is the essence of federalism and that the Federal Constitution only guarantees minimum protections, leaving to the States the task of affording additional or greater rights under their Constitutions, tailored to the special needs and traditions of the various States (People v Adams, 53 NY2d 241, 250). There is probably no area in which State attitudes are more diverse, and thus where independent State constitutional rights serve their intended purposes, than in the area dealing with freedom of expression (e.g., Miller v California, 413 US 15).

This State has long provided one of the most hospitable climates for the free exchange of ideas. The tradition existed in colonial times, as is exemplified by the acquittal in 1735 of John Peter Zenger who, interestingly, was prosecuted for publishing articles critical of the New York colonial Governor after he refused to disclose his source (23 Encyclopaedia Britannica [1956 ed], p 944; Hentoff, The First Freedom [1980], pp 63-68). In the 19th century a large portion of the publishing industry was established in New York and the State began to serve as a cultural center for the Nation. It still enjoys that status.

It is consistent with that tradition for New York to provide broad protections, often broader than those provided elsewhere, to those engaged in publishing and particularly to those performing the sensitive role of gathering and disseminating news of public events. The ability of the press to gather information is deterred if the press can be compelled to disclose their sources to the government. Similarly, publishers and reporters will be reluctant to publish what they have learned if they can be jailed, fined, or otherwise held in contempt for refusing to disclose the source of their information to State investigators.

In my view, therefore, protection from contempt for refusal to disclose a source is not merely a privilege granted to the press by the Legislature, but is essential to the type of freedom of expression traditionally expected in this State and should be recognized as a right guaranteed by the State Constitution.

In effect, the majority assumes that the answer to that question would be in the affirmative and concludes that even so, the statute would protect petitioner, notwithstanding the constitutional mandate of section 6 of article I that “The power of grand juries to inquire into the wilful misconduct in office of public officers * * * shall never be * * * impaired by law.” Clearly, section 79-h of the Civil Rights Law is a “law” and just as clearly by using it to block inquiry concerning whether a public officer violated the Penal Law, that law impairs the constitutional power of the Grand Jury to inquire into misconduct in public office.

Notwithstanding the clarity of the constitutional provision and the rule that when the language of the Constitution “is clear and leads to no absurd conclusion there is no occasion, and indeed it would be improper, to search beyond the instrument for an assumed intent” (People v Carroll, 3 NY2d 686, 689; accord Anderson v Regan, 53 NY2d 356, 362; Matter of Wendell v Lavin, 246 NY 115, 120), the majority concludes, on the basis of the statement of the sponsor to the 1938 Constitutional Convention, and an overly broad interpretation of that statement in Matter of Wood v Hughes (9 NY2d 144,150), which had nothing at all to do with the meaning of “impaired” as used in section 6 of article I, that it does not reach a law which “only indirectly hinder[s] a grand jury’s power to investigate.” (Majority opn, at p 253.) Respectfully, I cannot accept that conclusion.

As both the Supreme Court and this court have many times recognized, the free press provisions of the Federal and State Constitutions (US Const, 1st Arndt; NY Const, art I, § 8) are not absolute York Times Co. v Sullivan, 376 US 254; Beauharnais v Illinois, 343 US 250; Speiser v Randall, 357 US 513; People v Ferber, 57 NY2d 256; Lewis v American Federation of Tel. & Radio Artists, 34 NY2d 265; Brown v Kingsley Books, 1 NY2d 177). Moreover, in determining whether the First Amendment’s limitations have been infringed, a “declaration of the State’s policy * * * weights] heavily” (Cantwell v Connecticut, 310 US 296, 307-308; Bridges v California, 314 US 252, at p 260). Because the issue would reach the Supreme Court, as that court put it in Bridges (supra, at p 261), “encased in the armor wrought by” section 6 of article I of the State Constitution, there is little probability that a conclusion that section 79-h of the Civil Rights Law is limited by that State constitutional provision would be held to contravene the First Amendment.

The issue is thus reduced to consideration of the competing policies expressed in the mandate of section 6 of article I of the State Constitution against impairment of the Grand Jury’s power of inquiry as to misconduct of public officials and in the direction of section 8 of article I of the same document that “no law shall be passed to restrain or abridge the liberty * * * of the press.” As the majority’s footnote 7 recognizes, those provisions are to be so construed as to render them capable of operating harmoniously (Matter of Social Investigator Eligibles Assn. v Taylor, 268 NY 233, 237; Matter of Seeley v Stevens, 190 NY 158, 162; see McKinney’s Cons Laws of NY, Book 2, NY Const, art I, §§ 1-6, Rules of Constitutional Interpretation, § 6, p 8). To do so requires the conclusion, as the Appellate Division held, that the Shield Law be construed not to impair the power of the Grand Jury. This is so for a number of reasons. First, section 6 of article I is not a law; it is a constitutional mandate and, as such, is beyond the scope of section 8 of article I. Second, as noted above, section 8 of article I is not absolute; the press enjoys but a qualified privilege against defamation actions, and speech which presents a clear and present danger to the administration of justice may be punished as a contempt. Third, the Legislature has determined that such a danger exists when Grand Jury secrecy is violated, and the People, through section 6 of article I, have determined that the Legislature may do nothing which impairs the power of a Grand Jury to investigate such a violation by a public official.

Nor is the fact that other statutory and common-law privileges would likewise yield to section 6 of article I a reason for adopting the majority’s conclusion. The right to counsel provision of the same section would, as the majority concedes, protect petitioner when called before the Grand Jury and may conceivably carry with it much, if not all, of the attorney-client privilege, without which counsel’s effectiveness would in many situations be severely limited. As to the other privileges, however, and as to the attorney-client privilege, if the right to counsel provision of section 6 is held not to include it, those privileges will yield (cf. Matter of Keenan v Gigante, 47 NY2d 160, cert den sub nom. Gigante v Lankler, 444 US 887), as section 79-h of the Civil Rights Law must, because the Legislature “has sought to invade a field from which under the Bill of Rights [it] is excluded” (People v Barber, 289 NY 378, 385).

For the foregoing reasons and for the reasons stated in the opinion of Justice Paul J. Yesawich, Jr., at the Appellate Division, I would affirm the order of that court.

Judges Jones, Wachtler, Simons and Kaye concur with Chief Judge Cooke; Judge Wachtler concurs in a separate concurring opinion; Judge Meyer dissents and votes to affirm in another opinion in which Judge Jasen concurs.

Order reversed, etc.

      . Subpoenas duces tecum were also issued to petitioner’s employer in both November 1982 and January 1983. The parties have not directed their arguments to these subpoenas, and they do not appear to be at issue in this proceeding. In any event, the employer may claim any benefit of the Shield Law held by petitioner (see Civil Rights Law, § 79-h, subd [e]).

      . Section 215.70 of the Penal Law provides:
      “A person is guilty of unlawful grand jury disclosure when, being a grand juror, a public prosecutor, a grand jury stenographer, a grand jury interpreter, a police officer or a peace officer guarding a witness in a grand jury proceeding, or a clerk, attendant, warden, or other public servant having official duties in or about a grand jury room or proceeding, or a public officer or public employee he intentionally discloses to another the nature or substance of any grand jury testimony, or any decision, result or other matter attending a grand jury proceeding which is required by law to be kept secret, except in the proper discharge of his official duties or upon written order of the court. Nothing contained herein shall prohibit a witness from disclosing his own testimony.
      “Unlawful grand jury disclosure is a class E felony.”

      . The full text of section 79-h of the Civil Rights Law is set forth in footnote 5, infra.

      . The dissent’s assertion that petitioner could be asked whether his source was a public officer relies on the premise that the statute protects against the disclosure only of “sources of news”; it fails to recognize the protection against the disclosure of “news” itself, which is broadly defined (see pp 250-251, and n 5, infra). Certainly, the official status of the source is relevant information of public interest falling within the definition of “news.” For example, in another situation, it would be of great interest that an unaccredited revelation about foreign affairs came from the Secretary of State rather than a mail clerk.

      . In its entirety, section 79-h of the Civil Rights Law provides:
      “(a) Definitions. As used in this section, the following definitions shall apply:
      “(1) ‘Newspaper’ shall mean a paper that is printed and distributed ordinarily not less frequently than once a week, and has done so for at least one year, and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at United States post-office as second-class matter.
      “(2) ‘Magazine’ shall mean a publication containing news which is published and distributed periodically, and has done so for at least one year, has a paid circulation and has been entered at a United States post-office as second-class matter.
      “(3) ‘News agency’ «hall mean a commercial organization that collects and supplies news to subscribing newspapers, magazines, periodicals and news broadcasters.
      “(4) ‘Press association’ shall mean an association of newspapers and/or magazines formed to gather and distribute news to its members.
      “(5) ‘Wire service’ shall mean a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, periodicals or news broadcasters.
      “(6) ‘Professional journalist’ shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.
      “(7) ‘Newscaster’ shall mean a person who, for gain or livelihood, is engaged in analyzing, commenting on or broadcasting, news by radio or television transmission.
      “(8) ‘News’ shall mean written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare.
      “(b) Exemption of professional journalists and newscasters from contempt. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news or information to the public shall be adjudged in contempt by any court, the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose any news or the source of any such news coming into his possession in the course of gathering or obtaining news for publication or to be published in a newspaper, magazine, or for broadcast by a radio or television transmission station or network or for public dissemination by any other professional medium or agency which has as one of its main functions the dissemination of news to the public, by which he is professionally employed or otherwise associated in a news gathering capacity notwithstanding that the material or identity of a source of such material or related material gathered by a person described above performing a function described above is or is not highly relevant to a particular inquiry of government and notwithstanding that the information was not solicited by the journalist or newscaster prior to disclosure to him.
      “(c) Any information obtained in violation of the provisions of this section shall be inadmissible in any action or proceeding or hearing before any agency.
      “(d) No fine or imprisonment may be imposed against a person for any refusal to disclose information privileged by the provisions of this section.
      “(e) The privilege contained within this section shall apply to supervisory or employer third person or organization having authority over the person described in this section.”

      . Section 6 of article I provides in pertinent part: “The power of grand juries to inquire into the wilful misconduct in office of public officers, and to find indictments or to direct the filing of informations in connection with such inquiries, shall never be suspended or impaired by law.”

      . Of course, to the extent that a privilege is necessary to sustain Federal constitutional protections, such as the right to effective assistance of counsel, it would persist.

       (Compare Van Voorhis, Note on History in New York State of Powers of Grand Juries, 26 Albany L Rev 1.)


source: Caselaw Access Project

author: Chief Judge Cooke. Meyer, J.

license: Public Domain

text:
    In the Matter of Commco, Inc., Respondent, v Stanley P. Amelkin et al., Constituting the Zoning Board of Appeals of the Town of Huntington, Appellants.
    Argued March 26, 1984;
    decided May 15, 1984

      POINTS OF COUNSEL

      Michael F. Mullen for appellants.
    I. There is no legal precedent, in case law or statute, for what the Town Board did in this case. {Board of Supervisors v Bowen, 4 Lans 24; Matter of Town Bd. v Zoning Bd., 7 Mise 2d 210; Bowman v Squillace, 74 AD2d 887; Matter ofBachety v Volz, 65 Mise 2d 176, 39 AD2d 842; Town of Greece v Smith, 256 App Div 886; Matter ofAndgar Assoc, v Board of Zoning Appeals, 30 AD2d 672, 22 NY2d 648; Blumberg v Town of North Hempstead, 114 Mise 2d 8; Jaffe v Burns, 64 AD2d 692.) II. Under the circumstances of this case, the Zoning Board was authorized to employ its own counsel. (Cahn v Town of Huntington, 29 NY2d 451; Hanna v Rewkowski, 81 Mise 2d 498; Judson v City of Niagara Falls, 140 App Div 62, 204 NY 630.)

      Robert J. Flynn for respondent.
    I. The Town Board alone had the power to settle this proceeding. (Berean v Town of Lloyd, 3 AD2d 585; Cahn v Town of Huntington, 29 NY2d 451; Matter ofWeinstock v Long, 29 Mise 2d 795; Matter of Levy v Board of Stds. & Appeals, 267 NY 347; Matter of Clark v Board of Zoning-Appeals, 301 NY 86; Matter of Mirschel v Weissenberger, 277 App Div 1039.) II. The Town Board not only had the power but the duty to consider settlement of the proceeding. {Matter of Foster v Saylor, 85 AD2d 876.) III. The Zoning Board had no authority to retain counsel or to defend this proceeding contrary to the wishes of the Town Board. {Matter of Fleischmann v Graves, 235 NY 84; Matter ofHiscox v Holmes, 239 App Div 602; Judson v City of Niagara Falls, 140 App Div 62; Blumberg v Town of North Hempstead, 114 Mise 2d 8; Matter of Weinstock v Long, 29 Mise 2d 795.)

      Patrick A. Sweeney for Town Board of Town of Huntington.
    I. The Zoning Board and its counsel had notice of the Town Board’s actions. {Matter ofWeinstock v Long, 29 Mise 2d 795; Matter ofKovorsky v Housing & Dev. Admin., 31 NY2d 184; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Adee u Arnow, 91 Hun 329; Cahn v Town of Huntington, 29 NY2d 451.) II. The Town Board had authority to withdraw the appeal since it alone has the authority to control the progress of litigation. (Blumberg u Town of North Hempstead, 114 Mise 2d 8; Cahn u Town of Huntington, 29 NY2d 451; Matter ofWeinstock v Long, 29 Mise 2d 795.) III. The Zoning Board of Appeals was not authorized to engage counsel either expressly or impliedly. (Cahn v Town of Huntington, 29 NY2d 451.)
   OPINION OF THE COURT

Chief Judge Cooke.

Under the Town Law, a town zoning board of appeals has been exclusively empowered to grant or deny zoning variances. That power may not be circumvented or vitiated by permitting a town board to control the defense of zoning board determinations regarding a requested use variance. Therefore, when an article 78 proceeding has been brought against a zoning board of appeals to challenge the denial of a use variance, such a proceeding may not be settled by the town board, nor may the town board move to withdraw an appeal in that proceeding on behalf of the zoning board. The Town Board, in this proceeding, is a separate entity from the Zoning Board and may not eviscerate determinations of the Zoning Board or control the course of litigation against it.

In February 1982, the respondent Zoning Board of Appeals of the Town of Huntington denied an application by petitioner, Commco, Inc., for a use variance, which would have permitted it to convert an abandoned school building into a home for senior citizens. Petitioner then commenced this article 78 proceeding challenging the Zoning Board’s decision, naming only the Zoning Board as respondent.

Supreme Court annulled the determination of the respondent. The Town Attorney, who represented respondent in the Supreme Court, filed a notice of appeal in the Appellate Division on behalf of the zoning board in October 1982. Thereafter, in January 1983, the Town Board of the Town of Huntington replaced the Town Attorney with its own special counsel and authorized settlement discussions with petitioner by the special counsel. When respondent realized that the Town Attorney was no longer representing it on the appeal, it also engaged special counsel to prosecute the appeal.

In late March 1983, special counsel for the Town Board entered into a stipulation of settlement with the petitioner providing for withdrawal of the appeal and resettlement and re-entry of the original article 78 judgment granting the variance with the additional imposition of certain restrictions on petitioner’s project. The stipulation purports to be between the parties to the proceeding but, besides petitioner’s attorney, is signed only in the name of the Special Town Attorney retained by the Town Board. It states that the Town Board directed that the litigation be settled in the interests of the Town of Huntington and that it can only be amended by resolution of the Town Board. Based upon the filing of this stipulation, the Appellate Division ordered the appeal dismissed on April 21, 1983, noting that there was no opposition to “respondent’s” motion for leave to withdraw. However, neither the Zoning Board nor its attorney were parties to the settlement stipulation or the motion for leave to withdraw the appeal, nor did they have notice of the application. Respondent’s motion to vacate the order authorizing withdrawal of the appeal was denied by the Appellate Division in June 1983. Leave to appeal was granted to the Zoning Board by this court.

The Town Board asserts that the Town Law grants it the authority to continue or settle all litigation concerning it or its agencies, including the denial of a use variance by the Zoning Board. This court holds that, in the instant case, the Town Law provides no such authority.

A town board is empowered to compromise or settle an action or proceeding with the approval of the court in which the action is pending, but this power only refers to an action “against the town” (see Town Law, § 68, subd 1). The Town Law also provides that “[a]ny action or special proceeding for or against a town” must be “in the name of the town” and that a town board may direct any town officer to institute, defend or appear in any action “in the name of the town, as in its judgment may be necessary, for the benefit or protection of the town” (Town Law, § 65, subd 1). These provisions regarding a town board’s power in litigation matters do not provide the necessary authority for this Town Board to settle the instant article 78 proceeding because it was not brought against the town. The town was never served with process, nor was it named as a party to the proceeding; it never prepared any pleadings, intervened or was substituted as a party. Indeed, the litigation could not have been brought against the Town Board alone because the Zoning Board was the only necessary party for the court to have jurisdiction to grant a judgment concerning the use of the premises (see Phillips v Village of Oriskany, 57 AD2d 110, 115). A town board is only a necessary party if the constitutionality or validity of its zoning ordinance is questioned (see Matter of Ozols v Henley, 81 AD2d 670, app dsmd 54 NY2d 1023; Matter of Nassau Children’s House v Board of Zoning Appeals, 77 AD2d 898; Matter of Lerrick v Egan, 54 AD2d 934). The ability to institute, defend or appear in any action in the name of the town does not mean that the Town Board may appear in the name of the Zoning Board.

Notwithstanding its apparent lack of power to settle this proceeding, the Town Board argues that, given its position as the “legislative, appropriating, governing and policy determining body of the town” (Town Law, § 51), the Legislature intended to allow the Town Board to control this type of litigation. As the legislative body which created the Zoning Board, the Town Board claims to have the power to act for respondent and the duty to do so in order to effect the best interests of the town, which here assertedly require the settlement and discontinuance of the appeal. Otherwise, in the Town Board’s view, it could be forced to finance frivolous appeals at the will of respondent, to the possible fiscal ruination of the town. This argument is unpersuasive.

The respondent does not exist at the discretion or option of the Town Board but was created by it pursuant to a statutory mandate (see Town Law, § 267). While not a separate corporation, the respondent is a separate entity whose members serve with statutory powers and for statutorily specified periods of time and cannot be removed by the Town Board except “for cause and after public hearing” (Town Law, § 267, subd 1). It is undisputed that under this State’s statutory scheme, the Zoning Board has been vested with the exclusive power to grant or deny, in the first instance, a variance from the zoning ordinances (see Town Law, §§ 261, 267, subd 2; Jaffe v Burns, 64 AD2d 692; Blumberg v Town of North Hempstead, 114 Misc 2d 8) which are passed and enforced by the Town Board (see Town Law, § 261). When performing this function, as contrasted to its function of reviewing determinations by town administrative officials (see Town Law, § 267, subd 2), the Zoning Board acts in an administrative capacity independent from the Town Board. The respondent Zoning Board, while an agency of the municipality, nevertheless possesses an independent and direct interest in the litigation as a representative of the public interest in protecting the zoning system set up by the Town Board (see Town Law, §§ 261, 267, subds 2, 5; Matter of Corbett v Zoning Bd., 283 App Div 282, 285; cf. Rommell v Walsh, 127 Conn 16; Cefalo v Board of Appeal, 332 Mass 178). Acting in such a capacity, zoning boards have long been heard in this State’s appellate courts arguing as appellants to sustain their zoning determinations (see, e.g., Matter of Tandem Holding Corp. v Board of Zoning Appeals, 43 NY2d 801; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Matter of Village of Bronxville v Francis, 206 Misc 339, mod 1 AD2d 236, affd 1 NY2d 839; Matter of Nassau Children’s House v Board of Zoning Appeals, 77 AD2d 898, supra; Matter of Lerrick v Egan, 54 AD2d 934, supra; Matter of Trifaro v Zoning Bd., 45 AD2d 1015; Matter of Corbett v Zoning Bd., 283 App Div 282, 285, supra), as well as respondents (see, e.g., Matter of Rosbar Co. v Boards of Appeals, 53 NY2d 623; Matter of Sierra Constr. Co. v Board of Appeals, 12 NY2d 79; Matter of Village of Bronxville v Francis, 1 NY2d 839, supra; Matter of Roginski v Rose, 97 AD2d 417; Bowman v Squillace, 74 AD2d 887, app dsmd 50 NY2d 928). With the Town Board being concededly impotent to intrude on the respondent’s power over the granting of variances, it could only be the respondent that may decide to defend its determination initially and through the appellate stages of a proceeding brought under CPLR article 78. To accept the dissenter’s view of the “paramountcy” of the Town Board and permit it to control litigation arising from a zoning board’s determination would be to permit a town board to effectively take over the function of making variance determinations, either by ordering the zoning board to decline to defend its determination, thereby permitting a default to be taken against it, or by refusing to permit an appeal from any reversal of the zoning board’s determination. Indeed, carried to its logical extreme, the dissenter would permit the Town Board to settle any party’s dissatisfaction with a determination of the Appeal Board, whether before or after the bringing of a lawsuit, thereby reducing its concededly exclusive power over variances to a sham. No meaningful distinction can be made between permitting the Town Board to act in place of the Appeal Board immediately after a determination and at any point along the continuum of judicial review of that determination. The Town Board should not be allowed to achieve indirectly what it has no authority to control directly.

The Town Board’s extensive powers in governing the town (see Town Law, § 51) are not undermined by its inability to determine the course of this litigation because the power to grant variances had already been delegated to the Zoning Board (see Town Law, §§ 261, 267, subd 2; Huntington Code, § 198-109). The Town Board still had a means of protecting what it felt to be the best financial interest of the town by seeking a reversal of the Zoning Board’s decision through a direct appeal by an article 78 proceeding, as would any other “person * * * aggrieved” (see Town Law, §§ 65, 267, subd 7). In fact, aside from amending the zoning ordinance, that is the only means by which a town can seek to alter a zoning board’s determination regarding a requested use variance (see Matter of Village of Bronxville v Francis, 206 Misc 339, mod 1 AD2d 236, affd 1 NY2d 839, supra; Bowman v Squillace, 74 AD2d 887, app dsmd 50 NY2d 928, supra; Matter of Marshall v Quinones, 43 AD2d 436; Matter of Bachety v Volz, 65 Misc 2d 176, affd 39 AD2d 842; Matter of Town Bd. v Zoning Bd., 7 Misc 2d 210). Contrary to the inference that the dissent draws (dissenting opn, at p 273), the fact that the Town Board may eventually change the result of a Zoning Board determination through lawful means by appealing it or by amending the zoning ordinance does not militate in favor of granting the Town Board the power to ignore these procedures and control the determination at will. Permitting the Town Board to settle for the Zoning Board would eradicate the distinction between the two entities and undermine the legislative scheme established in the Town Law respecting the issuance of use variances (see Town Law, § 267, subd 7).

Finally, the Town Board argues that the respondent had no right to hire its own counsel because the necessary approval was not obtained from the Town Board. Although generally, such approval is necessary (see Town Law, § 65, subd 1), when the Town Attorney can no longer adequately represent the interests of a zoning board because of a conflict between itself and the town board, the zoning board is impliedly vested with the power to retain its own counsel (see Cahn v Town of Huntington, 29 NY2d 451, 455). Such conflict may exist although there is not a direct suit by the town board or one of its members against the zoning board. Here, the Town Attorney was no longer representing the interest of respondent after the appeal was filed in the Appellate Division, nor was the Town Board’s special counsel. Thus, respondent was justified in retaining its own counsel.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division, Second Department, for consideration of the appeal.

Meyer, J.

(dissenting). Because the majority overemphasizes the procedural at the expense of the substantive aspects of this matter, misreads the pertinent provisions of the Town Law and adopts a position which is both contrary to the majority rule and, in my view, wrong as a matter of policy, I respectfully dissent.

Governance of a town is by section 51 of the Town Law placed in the Town Board which, under that law, is “the legislative, appropriating, governing and policy determining body of the town and shall have and exercise all such powers and duties as are conferred or imposed upon it or are necessarily incidental thereto which are consistent with the provisions of this article”. Expressly dealt with in sections 65 and 68 of the law are the powers of the town to control litigation. Section 65 directs that “Any action or special proceeding for or against a town * * * shall be in the name of the town” and that “The town board of any town may authorize and direct any town officer or officers to* institute, defend or appear, in any action or legal proceeding, in the name of the town, as in its judgment may be necessary, for the benefit or protection of the town, in any of its rights or property.” Subdivision 1 of section 68 specifically provides that “The town board of any town may compromise or settle: a. An action or proceeding against the town, with the approval of the court in which such action or proceeding is pending.”

On the basis of those provisions there would seem to be little question that the Town Board is authorized to settle the instant special proceeding. The majority points, however, to the facts that the Town Board is not named as a party to the article 78 proceeding, that the Zoning Board represents the public interest in protecting the zoning system set up by the Town Board, and that the Town Board cannot take over the variance function of the Zoning Board. Viewed in proper perspective, however, these arguments are not persuasive.

That the Town Board is not a named party is a vestige of the in rem nature of certiorari, to which the only indispen-sible party defendant was the agency having custody of the record, provisions carried forward into the direction of CPLR 7802 (subd [a]) that the body or officer whose action may be affected be party to the proceeding, and of CPLR 7804 (subd [e]) that that body or officer file a certified transcript of the record of its proceedings (Second Reformed Church v Board of Adj., 30 NJ Super 338; Gilliam v Etheridge, 67 Ga App 731; 3 Rathkopf, Zoning & Planning, § 42.05, p 42-22). Though inconsistent to a degree with the provision of section 65 of the Town Law, that special proceedings involving the town be “in the name of the town,” the inconsistency is more apparent than real, for in all but exceptional cases it is the Town Attorney who represents the Board in such proceedings (cf. Town Law, § 20, subd 2; § 65, subd 1). Moreover, the Town Board, the legislative body whose zoning ordinance is involved, may properly be named as a party or be permitted to intervene (CPLR 7802, subd [d]). The solution of the present controversy should not turn on the happenstance that the Town Board is or is not named as a party, the more so in view of section 65’s direction that special proceedings “for or against a town, or for its benefit * * * be in the name of the town.”

The issue before us is whether the Town Board, in which is vested the power to zone (Town Law, § 261), or the Zoning Board of Appeals, appointed by the Town Board and given authority to vary or modify the zoning ordinance enacted by the Town Board, should control the disposition of the present appeal. In that context much of the case authority upon which the majority relies is at best of peripheral relevance. The fact that the town is a necessary party when the constitutionality of its zoning ordinance is put in issue (Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, and cases cited by the majority, at p 265) does not establish that the town’s control of zoning within its borders, including variances from its ordinance, is subordinate to that of the Zoning Board of Appeals when constitutionality is not in issue.

Nor, for several reasons, is it germane that under the wording of subdivision 7 of section 267 of the Town Law an alderman, town councilman or building inspector has standing to review a decision of the Zoning Board of Appeals (Bowman v Squillace, 74 AD2d 887; Matter of Marshall v Quinones, 43 AD2d 436; Matter of Bachety v Volz, 65 Misc 2d 176, affd 39 AD2d 842; cf. Blumberg v Town of North Hempstead, 114 Misc 2d 8). The implication the majority appears to draw from those cases is that if such persons come within the phrase “any officer, department, board of bureau” as used in subdivision 7 of section 267 of the Town Law, the Zoning Board of Appeals necessarily must. Because that wording deals only with who may seek first instance review of the Board’s determination, the construction of the word “board” to include the Zoning Board of Appeals, and thus to give that Board authority to seek article 78 review of its own determination, hardly seems logical. Moreover, doing so would not settle the question before us — who has paramount authority to control such litigation — for the case law is clear that the town and its counterparts, cities and villages, also have standing to institute such a review proceeding (Town of Greece v Smith, 256 App Div 886; Matter of City of Glen Cove v Buxenbaum, 17 AD2d 828; Matter of Village of Bronxville v Francis, 206 Misc 339, mod on other grounds 1 AD2d 236, affd 1 NY2d 839; Matter of Town Bd. v Zoning Bd., 7 Misc 2d 210) unless by express prohibition (Matter of Helgar Realty Corp. v Commissioner of Environmental Conservation, 98 Misc 2d 56, affd 75 AD2d 1025) or necessary implication (Matter of Community Bd. v Board of Estimate, 57 NY2d 846, affg 88 AD2d 832), the governing statute otherwise provides.

The majority discerns an implied proscription from the cases holding that a Zoning Board of Appeals may appeal a court decision annulling the Board’s determination, from the provisions of section 267 of the Town Law, providing for the establishment of the Board, and on the basis of the impotence of the Town Board to control the Zoning Board’s variance decisions.

The appeal cases are not determinative of the present issue. As already noted, they arise largely from the confusion generated by the overlapping provisions of CPLR 7804 and section 65 of the Town Law, and a right of appeal in the Zoning Board can be found in the provisions of section 267 of the Town Law only by stretching its lánguage unduly. Furthermore, in most of the cases relied on, the standing of the Zoning Board to appeal was not contested, and many are inconclusive because the Town Board was also a party (e.g., Matter of Calcagno v Town Bd., 291 NY 701) or the Zoning Board was represented by counsel for the municipality and the court in refusing to dismiss the appeal because it was not taken by the Town Board was, in effect, simply recognizing that the interests of the Town Board and of the Zoning Board were the same (Matter of Corbett v Zoning Bd., 283 App Div 282; see Matter of Ernst v Board of Appeals, 298 NY 831; Matter of Robitzek Investing Co. v Murdock, 296 NY 852).

The provisions of sections 261 and 267 of the Town Law, to which the majority refers as evidencing the Zoning Board’s role “as a representative of the public interest in protecting the zoning system set up by the Town Board” (majority opn, at p 266), provide no stronger support. Zoning Boards were established because of the difficulty of drafting a perfect zoning ordinance, in order to provide flexibility and keep zoning legislation out of the courts (Anderson, The Board of Zoning Appeals — Villain or Victim?, 13 Syracuse L Rev 353, 355-357). True, though appointed by the Town Board, the members of the Zoning Board have a fixed term, can be removed only for cause and after a hearing, and cannot also serve as a member of the Town Board (Town Law, § 267, subd 1). But it is also true that the Zoning Board’s powers are to be exercised “in accordance with general or specific rules” contained in the zoning regulations established by the Town Board (Town Law, § 261) and that its variance power as declared in subdivision 5 of section 267 is to be exercised “so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done” (emphasis supplied). Not only do the underscored words suggest that the Zoning Board’s function is quasi-judicial rather than legislative or administrative, but Professor Anderson’s study indicates that such boards have more often acted to protect property owners’ rights than to protect the zoning system (13 Syracuse L Rev, at pp 354, 360, 369, 371, 376, 384-385). At best equivocal, the statutory provisions do not sustain the concept that the Zoning Board has been accorded paramountcy over the Town Board in the protection of the public interest.

Nor can too much weight be given the argument that the Town Board cannot dictate the Zoning Board’s variances determination. As the majority concedes (at p 267), the Town Board has the ultimate control for it not only can appeal the Zoning Board’s decision, but also reverse it by amending the zoning ordinance. Its doing so is, of course, subject to public scrutiny, but the fact that it has the final word strongly suggests that, notwithstanding the independence of the Zoning Board, it is the Town Board rather than the Zoning Board which is the protector of the public interest.

This follows, as well, from the fact that the Zoning Board has no responsibility for enforcement of the zoning ordinance as such, that function being vested in the Town Board or such local officer as it may designate (Town Law, § 268), and from the generally accepted rule that a Zoning Board acts in a quasi-judicial capacity and, although the public interest plays an important part in its decision-making, “has no interest, personal or official, in the matters which come before it other than to decide them” (Zoning Appeals Bd. v McKinney, 174 Md 551, 561). Though there are decisions to the contrary, the generally accepted rule is that a Zoning Board does not have a partisan role when one of its decisions is questioned or annulled on review by a court (Board of Adj. v Kuehn, 132 Col 348; Gilliam v Etheridge, 67 Ga App 731, supra; Speck v Zoning Bd., 89 Ill 2d 482; State ex rel. Bringhurst v Zoning Bd., 198 La 758; Inhabitants of Town of Boothbay Harbor v Russell, 410 A2d 554 [Me]; Mayor of Baltimore v Borinsky, 239 Md 611; City of Keene v Zoning Bd., 114 NH 744; DiCillo & Sons v Chester Zoning Bd., 158 Ohio St 302; Lansdowne Borough Bd. of Adjs. Appeal, 313 Pa 523; National Dev. Corp. v Township of Harrison, 64 Pa Commw 54; Hassell v Zoning Bd., 108 RI 349; see 4 Anderson, American Law of Zoning [2d ed], § 25.20, pp 241-243; 8A McQuillin, Municipal Corporations [3d ed rev], § 25.342a, pp 500-501; Rathkopf, op. cit., § 42.05, pp 42-22 to 42-24; Ann., 13 ALR4th 1130), the municipality being held in such cases to be the proper party appellant. Important to note with respect to the cases contra, including those cited by the majority, are the facts that they hold no more than that a Zoning Board has sufficient interest to appeal, not that a municipality does not, and that in at least two (Rommell v Walsh, 127 Conn 16; and Cefalo v Board of Appeal, 332 Mass 178), the report shows that the Zoning Board appeared by the Corporation Counsel, suggesting that there was no difference of view between the Board and the municipality. They, thus, are not determinative of the question being decided on this appeal.

The fact that the Zoning Board is a party to a proceeding to review its determination results from the procedural history of article 78 rather than a legislative intent to assign it an enforcement role. It acts only after a hearing (Town Law, § 267, subds 2, 5), and in ruling upon variance applications is directed to act not only in the spirit of the ordinance but also so that substantial justice will be done. It is not, however, as were the Land Commissioners involved in People ex rel. Burnham v Jones (110 NY 509), the only authority upon which the public duty as to the matter in hand rests and should be accorded no right, apart from that of the municipality within whose jurisdiction it functions, to appeal from an order of a court annulling its determination, or to be heard on such an appeal (People ex rel. Steward v Board of R.R. Comrs., 160 NY 202, 212; People ex rel. Breslin v Lawrence, 107 NY 607, 609; Matter of Quinn, 2 App Div 103, affd 152 NY 89; see Matter of Rox v Doherty, 284 NY 550, 553). Clearly, therefore, it should not be permitted to interfere with the Town Board’s determination to withdraw the appeal.

The order of the Appellate Division permitting the appeal to be withdrawn should, therefore, be affirmed.

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

Order reversed, etc.

      . When a Zoning Board acts as a judicial or quasi-judicial body in hearing appeals the determinations of the town officers, it would not be able to appeal from a reversal of its own decision (see People ex rel. Steward v Board of R. R. Comrs., 160 NY 202, 212; cf. Rommell v Walsh, 127 Conn 16; Zoning Bd. v Dragon Run Terrace, 59 Del 175).

      . As the dissent points out, the Town Board also performs functions which are in the public interest, for example drafting the zoning ordinances. However, this fact does not detract from the protective function of the Zoning Board in seeing that variances are determined so that “public safety and welfare [are] secured” (Town Law, § 267, subd 5).

      . Other jurisdictions with similar statutory schemes have also upheld the right of the Zoning Board to appeal from a reversal of its decision (see Rommell v Walsh, 127 Conn 16; Zoning Bd. v Dragon Run Terrace, 59 Del 175; Cefalo v Board of Appeal, 332 Mass 178).

      . To the extent that the dissent attributes to this, opinion any reliance on a construction of any “ ‘officer, department [or] board’ ” in subdivision 7 of section 267 of the Town Law, as referring to the Zoning Board having the right to appeal from its own determination (see dissenting opn, at p 271),' it is in error.

       Thus in Cefalo v Board of Appeal (332 Mass 178), on which the majority relies, the Massachusetts Supreme Judicial Court reasoned “that if the members of the board could not be made defendants there would be in many instances no one who could be made a defendant, and no suit could be brought” (at p 180).


author: Per Curiam.

text:
    The People of the State of New York, Appellant, v Raymond Ford, Respondent. The People of the State of New York, Respondent, v Gordon Simpson, Appellant. The People of the State of New York, Respondent, v James Williams, Appellant.
    Argued March 26, 1984;
    decided May 15, 1984

      POINTS OF COUNSEL
    first above-entitled action.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v Butler, 86 AD2d 811, 57 NY2d 664.) II. Read realistically and in a commonsense manner, CPL 300.50 (subd 1) provides that the failure to object to the submission of a lesser offense waives any claim that the offense submitted was not necessarily included in the offense charged. (People v Henderson, 41 NY2d 233; Zappone v Home Ins. Co., 55 NY2d 131; People v

      Stevenson, 31 NY2d 108; People ex rel. Wachowicz v Martin, 293 NY 361; People ex rel. Tanner v Vincent, 44 AD2d 170, 36 NY2d 773; People v Foster, 19 NY2d 150; People v Legacy, 4 AD2d 453; People v Dekle, 56 NY2d 835; People ex rel. Prince v Brophy, 273 NY 90.) III. Since defendant conceded, and the evidence established, his guilt of petit larceny, the court below erred in not modifying the conviction by reducing it to petit larceny, a lesser included offense of both robbery and grand larceny. (.People v Holmes, 52 NY2d 976; People v Mayo, 48 NY2d 245; People v Dlugash, 41 NY2d 725.)

      Marla Tepper and William E. Hellerstein for respondent in the first above-entitled action.
    I. Respondent’s conviction for grand larceny in the third degree was secured in violation of due process where (a) it was not proven beyond a reasonable doubt that the complainant’s money was taken from his person, a necessary element of grand larceny in the third degree; and (b) the decision to acquit respondent of the robbery counts in the indictment and to convict him of grand larceny in the third degree was repugnant and without a rational basis. (<Jackson v Virginia, 443 US 307; Matter ofWinship, 397 US 358; People v Haymes, 34 NY2d 639; People v Garcia, 72 AD2d 356, 52 NY2d 716; People v Pugh, 36 AD2d 845, 29 NY2d 909, 406 US 921; People v Carhonell, 40 NY2d 948; United States v Maybury, 274 F2d 899; People v Tucker, 55 NY2d 1; United States v Wilson, 342 F2d 43.) II. The court below correctly concluded that the waiver provision of CPL 300.50 (subd 1) does not apply to the improper submission of a noninclu-sory offense since subject matter jurisdiction may not be waived by a defendant. (.People v Glover, 57 NY2d 61; People ex rel. Gray v Tekben, 68 AD2d 176, 57 NY2d 651; People v Fischer, 94 AD2d 706; People v Camilloni, 92 AD2d 745; People v Panuccio, 90 AD2d 507; People v Harper, 37 NY2d 96; People v Nicometi, 12 NY2d 428; Matter of Hogan v Supreme Ct. ofN. Y., 295 NY 92; Matter of Morhous v Supreme Ct. ofN. Y., 293 NY 131; People ex rel. Keitt v McMann, 18 NY2d 257.) III. The court below did not abuse the broad discretion afforded it under CPL 470.15 by reversing respondent’s conviction and ordering the dismissal of the indictment. {People v Holmes, 52 NY2d 976; People v Mayo, 48 NY2d 245.)

      Sarah M. Burr and William E. Hellerstein for appellant in the second above-entitled action.
    Appellant was deprived of his right to due process of law when the court erroneously convicted him of reckless assault with a dangerous instrument, since this crime is not a lesser included offense of reckless manslaughter. (Russell v United States, 369 US 749; People v Moyer, 27 NY2d 252; People v Acevedo, 40 NY2d 701; People v Graham, 44 NY2d 768; People v Green, 56 NY2d 427.)
    respondent in the second above-entitled action.
    I. Appellant’s guilt of assault in the second degree was established beyond a reasonable doubt. {People v Rumaner, 45 AD2d 290; People v Cwikla, 46 NY2d 434; People v Ozarowski, 38 NY2d 481; People v Carter, 53 NY2d 113.) II. The new interpretation of “lesser included offense,” as announced in People v Glover, should not be applied retroactively. {People v Green, 56 NY2d 427; People v Glover, 57 NY2d 61; People ex rel. Gray v Tekben, 68 AD2d 176, 57 NY2d 651; People v Cionek, 35 NY2d 924; People v Hayes, 35 NY2d 907\ People v Warren, 43 NY2d 852; People v Lett, 39 NY2d 966; People v Johnson, 39 NY2d 364; People v Lee, 39 NY2d 388; People v Grier, 37 NY2d 847; People v Stanfield, 36 NY2d 467; People v Rivers, 59 AD2d 847.) III. Appellant’s failure to object to the submission of assault in the second degree as a lesser included offense of manslaughter in the second degree precludes any claim that the submitted offense was not necessarily included in the charged offense.

      Marla Tepper, William E. Hellerstein and Gary Divis for appellant in the third above-entitled action.
    The trial court’s lack of subject matter jurisdiction to convict appellant of a crime for which he was not indicted and which was not a lesser included offense of the counts charged could not be waived by appellant’s request for submission of the noninclusory offense. {People ex rel. Gray v Tekben, 68 AD2d 176, 57 NY2d 651; People v Davis, 96 AD2d 748; People v Fischer, 94 AD2d 706; Cancemi v People, 18 NY 128; People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; Matter of Simonson v Cahn, 27 NY2d 1; People v Miles, 289 NY 360; People ex rel.

      Battista v Christian, 249 NY 314; People v Miguel, 53 NY2d 920; Cox v Katz, 22 NY2d 903.)
    in the third-above entitled action.
   OPINION OF THE COURT

Per Curiam.

Any error by the trial court in considering or submitting to the jury a lesser crime arising out of the same criminal transaction as an indicted crime, that is not in fact a lesser included offense, is waived unless defendant makes timely objection.

The relevant facts in each case are not in dispute. Defendant Raymond Ford was indicted for robbery in the first and second degrees (Penal Law, §§ 160.10, 160.15). After the close of evidence in his bench trial, the court announced that it would consider grand larceny in the third degree (Penal Law, § 155.30) as a lesser included offense, and neither defendant nor the People objected. The court found Ford guilty of grand larceny in the third degree. The Appellate Division reversed the conviction and dismissed the indictment, concluding that grand larceny in the third degree was not a lesser included offense of the indicted crimes and that, the defect being one of subject matter jurisdiction, defendant did not waive his right to complain of that error.

Defendant Gordon Simpson was indicted for manslaughter in the second degree (Penal Law, § 125.15). At his nonjury trial, the People requested that assault in the second degree (Penal Law, § 120.05) also be considered by the court as a lesser included offense, and defendant did not object. The court found Simpson guilty of assault in the second degree, and the Appellate Division affirmed his conviction.

Defendant James Williams was indicted for robbery in the second degree (Penal Law, § 160.10). At trial, Williams requested that the court also submit to the jury as lesser included offenses the crimes of assault in the third degree (Penal Law, § 120.00) and grand larceny in the third degree (Penal Law, § 155.30), and the court did so. The jury found Williams guilty of assault in the third degree, and his conviction was affirmed by the Appellate Division.

In each of these appeals, the People concede that the offense of which the defendant was convicted was neither one for which he was indicted nor a lesser included offense meeting the criteria set forth in People v Glover (57 NY2d 61), but argue that the defendant, by pursuing the strategic tactic of acquiescing in, or even affirmatively requesting, the lesser charge, waived his right to complain of the trial court’s error. Defendants each contend that the error was a violation of his rights under section 6 of article I of the New York Constitution, and constituted a nonwaivable jurisdictional defect.

Section 6 of article I of the New York Constitution provides in pertinent part that “[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury”. In addition to crimes for which a defendant has been indicted, a court has authority to consider or submit to the jury lesser included offenses. (People v Henderson, 41 NY2d 233, 235.) The court’s authority to do so is set forth in CPL 300.50 (subd 1) (made applicable to bench trials by CPL 320.20, subd 4): “In submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense. Any error respecting such submission, however, is waived by the defendant unless he objects thereto before the jury retires to deliberate.” “Lesser included offense” is in turn defined by CPL 1.20 (subd 37) as follows: “When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a ‘lesser included offense.’ In any case in which it is legally possible to attempt to commit a crime, an attempt to commit such crime constitutes a lesser included offense with respect thereto.”

Accordingly, for a crime to be submitted or considered as a lesser included offense of a crime for which a defendant has been indicted, it must be theoretically impossible to commit the greater crime without at the same time, by the same conduct, committing the lesser, and the evidence must be sufficient to support a finding that the defendant committed the lesser but not the greater crime. (People v Glover, supra.) If there is any error in the submission or consideration of lesser included offenses — including specifically the failure of the crime to meet the “theoretical impossibility” test of Glover — CPL 300.50 (subd 1) provides that it is waived by the defendant unless timely objection is made.

The Supreme Court, where each of the actions was tried, had both personal and subject matter jurisdiction. Section 7 of article VI of the New York Constitution grants that court general jurisdiction — indeed exclusive jurisdiction — of crimes prosecuted by indictment in the City of New York. The crimes of which the defendants were convicted fall within that category.

While it is true that, under section 6 of article I of the New York Constitution, a “valid and sufficient accusatory instrument is a non waivable jurisdictional prerequisite to a criminal prosecution” (People v Harper, 37 NY2d 96, 99), and “[u]ntil the grand jury shall act, no court can acquire jurisdiction to try” (People ex rel. Battista v Christian, 249 NY 314, 319), in each action before us the Grand Jury returned a valid indictment sufficient to require the defendant to proceed to trial with respect to an identified criminal transaction out of which his subsequent conviction arose. These are not cases where the trial court lacked subject matter jurisdiction because no indictment was returned (see Matter of Simonson v Cohn, 27 NY2d 1, 4; People ex rel. Battista v Christian, 249 NY 314, supra), or the indictment or information was inherently defective in that it failed to allege the elements of the crime charged (see People v Scott, 3 NY2d 148,152-153; People v McGuire, 5 NY2d 523, 526), or the trial court had no jurisdiction under article VI of the Constitution to try the offenses of which defendant was convicted (see People v Nicometi, 12 NY2d 428; People v Johnson, 20 NY2d 220).

The prohibition of section 6 of article I of the Constitution that “[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury” is not a limitation directed to the courts, but rather to the State, and its function is to prevent prosecuto-rial excess by ensuring that “before an individual may be publicly accused of crime and put to the onerous task of defending himself from such accusations, the State must convince a Grand Jury composed of the accused’s peers that there exists sufficient evidence and legal reason to believe the accused guilty.” (People v Iannone, 45 NY2d 589, 594.) That function was fulfilled here, as the People’s case against each defendant with respect to a particular transaction was presented to a Grand Jury and indictments were returned against all three.

Here, defendants were indicted and brought to trial in a court that had jurisdiction over offenses of which the defendants were accused. That court in turn had authority, pursuant to CPL 300.50, to consider or submit to the jury any lesser included offenses of the indicted crimes which could be supported by a reasonable view of the evidence. (People v Henderson, 41 NY2d 233, supra.) An error by the trial court in submitting or considering a lesser crime arising out of the same transaction that is not a lesser included offense does not affect that court’s competence to entertain the action or to convict of that crime, but only its authority to enter a judgment on the merits against defendant on that specific charge in particular facts of that case. Such an error is not jurisdictional (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166; Lacks v Lacks, 41 NY2d 71, 75; Nuernberger v State of New York, 41 NY2d 111, 115-116), and, pursuant to CPL 300.50, may be waived if timely objection is not made. We have in the past held that such a defect, where not objected to, did not require vacatur of conviction in a habeas corpus proceeding (People ex rel. Wachowicz v Martin, 293 NY 361; People ex rel. Tanner v Vincent, 44 AD2d 170, affd 36 NY2d 773), or — under a predecessor to CPL 300.50 — reversal on direct appeal (People v Stevenson, 31 NY2d 108, 109, n 1). Similarly, we have upheld a plea to a nonexistent crime in satisfaction of an indictment charging a crime carrying a heavier penalty, defendant having “induced the proceeding of which he now complains” by a failure to object. (People v Foster, 19 NY2d 150, 153; see, also, People v Adams, 57 NY2d 1035, 1038.)

While the Legislature has defined the scope of lesser included offenses (CPL 1.20, subd 37) and has provided that only such lesser included offenses may be considered or submitted to the jury along with indicted offenses (CPL 300.50, subd 1), it has also made provision for defendants to be convicted of lesser crimes that do not fall within the definition of lesser included offenses, either by plea (CPL 220.10, 220.20) or by a submission or consideration made without objection (CPL 300.50, subd 1). There is no jurisdictional or constitutional infirmity in that scheme.

In each instance, the defendant by acquiescing in or affirmatively requesting a lesser charge waived his right to complain of the trial court’s error. The additional objections raised by defendant Ford were not preserved. Accordingly, in People v Simpson and People v Williams the orders of the Appellate Division should be affirmed. In People v Ford, the order of the Appellate Division should be reversed, the indictment reinstated, and the case remitted to that court for determination of the facts. (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b].)

Chief Judge Cooke (concurring). I respectfully concur. While I agree with the majority’s interpretation of CPL 300.50 (subd 1), I cannot join in the discussion regarding People ex rel. Gray v Tekben (57 NY2d 651, affg 86 AD2d 176). That case squarely presented the question that is decided in these appeals (see 86 AD2d, at pp 179-180). Given the jurisdictional nature of the issue, it was incumbent upon this court in Gray to consider and decide whether the legal question had been preserved for review; this court’s decision on the merits effectively determined that the matter was properly before it. Consequently, today’s decision should be viewed as overruling Gray, which I believe is appropriate.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in Per Curiam opinion; Chief Judge Cooke concurs in a concurring memorandum.

In People v Ford: Order reversed, indictment reinstated and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

In People v Simpson: Order affirmed.

In People v Williams: Order affirmed.

       Though widely read to require a different result, our decision in People ex rel. Gray v Tekben (57 NY2d 651) did not reach the issue. In Gray, the Appellate Division sustained a writ of habeas corpus to the relator, who was indicted and acquitted of assault in the second degree but committed to a mental institution based on a conviction of assault in the third degree, which had been considered a lesser included offense (86 AD2d 176). In so doing, the court found that the crime could not be a lesser included offense under the “theoretical impossibility” test of CPL 1.20 (subd 37), and that relator, who did not object to the consideration at trial, had not waived his right to do so under CPL 300.50 (subd 1), because that waiver provision applied only to errors in considering offenses not supported by sufficient evidence at trial. On appeal the custodian argued that relator’s detention was lawful because the crime was in fact a lesser included offense under the CPL 1.20 test. We rejected that argument and affirmed. This court, in affirming that the lesser offense was not included in the greater, neither considered nor decided the waiver issue addressed by the Appellate Division, and our decision in Gray should not be so read. To the extent that the Appellate Division’s determination of the waiver issue in that case is inconsistent with our holding today, it should not be followed.


author: Chief Judge Cooke.

text:
    The People of the State of New York, Respondent, v Clark Williams, Appellant.
    Argued March 27, 1984;
    decided May 17, 1984

      POINTS OF COUNSEL

      Gerald Zuckerman for appellant.
    I. The record discloses that appellant did not knowingly and intelligently waive his Miranda rights. (.Miranda v Arizona, 384 US 436; Johnson v Zerbst, 304 US 458; People v Lux, 29 NY2d 848; People v Tigner, 48 AD2d 762; People v Chaffee, 42 AD2d 172; People v White, 85 AD2d 787.) II. Under the totality of the circumstances the confessions were involuntary. (.Rogers v Richmond, 365 US 534; People v Bay, 76 AD2d 592; Bram v United States, 168 US 532; United States v Goray-ska, 482 F Supp 576; Hutto v Ross, 429 US 28; People v Phillips, 42 NY 200; People v Valletutti, 297 NY 226;
      People v Helstrom, 50 AD2d 685; People v Boykins, 81 AD2d 922; Blackburn v Alabama, 361 US 199.)

      William L. Murphy, District Attorney {Karen F. McGee of counsel), for respondent.
    I. The court should not set aside as a matter of law, the factual finding, affirmed by the court below, that defendant knowingly and voluntarily waived his Miranda rights. {People v Harrell, 59 NY2d 620; People v Young, 48 NY2d 955; People v Love, 57 NY2d 998; People v Montanez, 90 AD2d 476; People v Morales, 62 AD2d 946; People v Brundige, 43 AD2d 1009; People v Bruce, 62 AD2d 1073; United States v Isom, 588 F2d 858; People v Kelly, 67 AD2d 1009; People v Wofford, 46 NY2d 962.) II. An examination of the totality of the circumstances establishes that defendant’s statements were voluntary; their admission did not offend, as a matter of law, due process. {People v Leonard, 59 AD2d 1; Rogers v Richmond, 365 US 534; Clewis v Texas, 386 US 707; People v Anderson, 42 NY2d 35; People v Bay, 76 AD2d 592, 54 NY2d 808; Bram v United States, 168 US 532; People v Taylor, 87 AD2d 771, 57 NY2d 729; People v Calhoun, 78 AD2d 658; United States ex rel. Graham v Mancusi, 457 F2d 463; People v Brown, 63 AD2d 584.) III. Defendant’s statements should not be deemed untrustworthy merely because the facts recounted therein do not precisely accord with all the evidence ultimately adduced at trial; moreover, this issue has not been preserved for the court’s review. {People v Schompert, 19 NY2d 300, 389 US 874.)
   OPINION OP THE COURT

Chief Judge Cooke.

An effective waiver of Miranda rights may be made by an accused of subnormal intelligence so long as it is established that he or she understood the immediate meaning of the warnings. An inability to comprehend the import of the Miranda warnings in the larger context of criminal law generally does not of itself vitiate the validity of the waiver.

When arrested, defendant was a 20-year-old, functionally illiterate, borderline mentally retarded man who also suffered from organic brain damage as a result of having been struck by a car during his childhood. He had previously been hospitalized for psychotic episodes.

Defendant was taken to the police station for questioning. Having been advised that defendant was a bit “slow,” the detective who administered the Miranda warnings did not restrict himself to a mere reading of the rights from a card, as is usually done by police officers. Instead, the officer described the rights in more detail and simpler language, verifying that defendant understood each right before proceeding to the next warning. Defendant agreed to speak to the detective and ultimately made inculpatory statements after speaking to his mother, who was in the next room.

After being found competent to stand trial, defendant moved to suppress his statements. Defendant called two expert witnesses who testified as to defendant’s mental and physical disabilities. They stated that defendant would have understood that he was confessing to a crime and that he had wrongfully taken another’s life. The experts also conceded that defendant would have understood a paraphrased, simplified version of the Miranda warnings. They opined, however, that defendant was not capable of understanding the abstract concepts underlying the Miranda warnings so that he would not have understood their rationale or the full legal implications of confessing.

The motion to suppress was denied, and defendant was convicted of second degree murder and first degree rape after a jury trial. The Appellate Division unanimously affirmed. This court now affirms.

Defendant contends that his incapacity to fully comprehend the legal implications of the Miranda warnings rendered his waiver invalid. In essence, defendant argues that an accused cannot make an effective waiver if he or she is not fully knowledgeable of the criminal process and therefore does not grasp the complete significance of the Miranda warnings. This goes too far.

To be valid, an accused’s waiver of his or her rights must be knowingly and intelligently made (see Johnson v Zerbst, 304 US 458). This is essentially a factual issue that must be determined according to the circumstances of each case. In assessing the impact of an individual’s mental capacity on the validity of a waiver, “[t]he very widely recognized principle governing the question of the effect of an accused’s subnormality of intelligence upon the volun-tariness and admissibility of his confession is that deficient intelligence is but one factor in the whole ‘totality of circumstances’ to be considered in determining voluntariness and admissibility, at least unless the degree of retardation is so great as to render the accused completely incapable of understanding the meaning and effect of his confession * * *. Completely similar principles have been applied in the determination of an accused’s understanding of Miranda warnings or voluntary waiver of Miranda rights * * *” (Ann., 8 ALR4th 16, 21 [n omitted]). A court must always ascertain whether the defendant understood how the Miranda rights affected the custodial interrogation. In dealing with a person of subnormal intelligence, close scrutiny must be made of the circumstances of the asserted waiver.

Although a suspect must be apprised of his or her rights, providing á general legal education is not the business of the police or the courts. It must be shown that the individual grasped that he or she did not have to speak to the interrogator; that any statement might be used to the subject’s disadvantage; and that an attorney’s assistance would be provided upon request, at any time, and before questioning is continued. What will suffice to meet this burden will vary from one case to the next. Thus, for example, administering Miranda warnings in a language not understood by the suspect would certainly be inadequate. Similarly, to an individual of subnormal intelligence, stating the Miranda warnings in sophisticated terms would be as incomprehensible as though they were spoken in a foreign language. As noted above, the detective here was careful to reduce the warnings to simple terms that defendant could understand.

An individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process (see, e.g., Harris v Riddle, 551 F2d 936, 938-939, cert den sub nom. Harris v Zahradnick, 434 US 849; Thomas v State, 373 So 2d 1167, 1168-1169 [Ala], vacated on other grounds 448 US 903; Albright v State, 378 So 2d 1234, 1236 [Fla]; Wantland v State, 45 Md App 527, 535-539, cert den 457 US 1121). There may be a theoretical distinction between a person of normal intelligence who is merely unfamiliar with the legal process and a person of sübnormal intelligence who is incapable of understanding the legal process. As a practical matter, however, both stand in the same shoes when confronted with making a knowledgeable decision to relinquish the right to remain silent: neither one makes a decision with the benefit of fully comprehending the policy behind the Miranda rights and the various implications of waiving them.

Recognizing this practical similarity, it becomes apparent that no distinction normally should be made on the basis of an individual’s intelligence as to what constitutes a valid waiver of those rights. The inquiry is focused initially upon the accused’s understanding of the immediate meaning of the warnings. If that comprehension is present, then the waiver will be given effect in the absence of other factors suggesting a lack of voluntariness (see, e.g., People v Joyce, 233 NY 61, 69-71 [suggestibility]).

On the record here, it cannot be said as a matter of law that the lower courts erred in finding that defendant was capable of understanding the immediate import of the Miranda warnings. Indeed, defendant’s expert witnesses testified to that effect.

Defendant’s other arguments have been considered and are found to be without merit.

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

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed.