author: Jasen, J.

text:
    The People of the State of New York, Respondent, v MacArthur Britt, Appellant.
    Argued October 12, 1977;
    decided November 21, 1977

      POINTS OF COUNSEL

      Susan A. Powers and William E. Hellerstein for appellant.
    Appellant’s conviction should be reversed because the trial court refused to instruct the jury—as mandated by CPL 300.10 (subd 2)—that it must draw no adverse inferences against appellant for his failure to take the stand. (People v Ricken, 29 AD2d 192; People v Gowasky, 244 NY 451; Matter of Delmar Box Co., 309 NY 60; People v Elliott, 10 AD2d 735; People v Torre, 33 AD2d 43; People v De Loatch, 19 AD2d 908; Bruno v United States, 308 US 287; People v Fitzgerald, 156 NY 253; People v Rios, 27 NY2d 202; People v Forte, 277 NY 440.)

      Mario Merola, District Attorney (Donald H. Levin of counsel), for respondent.
    I. Defendant’s guilt was established beyond a reasonable doubt. (People v Mussenden, 308 NY 558; People v White, 2 NY2d 220; People v Tait, 234 App Div 433; People v Becker, 215 NY 126; People v Seidenshner, 210 NY 341; People v Eisenberg, 22 NY2d 99; People v Pesky, 254 NY 373; People v McCarthy, 250 NY 358.) II. The court’s inadvertent failure to charge as defendant requested did not prejudice him. (People v Crimmins, 36 NY2d 230; Chapman v California, 386 US 18; Griffin v California, 380 US 609; People v McLucas, 15 NY2d 167; People v Leavitt, 301 NY 113; People v Cwikla, 45 AD2d 584; People v Rial, 25 AD2d 28; People v Garcia, 51 AD2d 329; People v Krische, 50 AD2d 872; People v Carlton, 48 AD2d 775.)
   OPINION OF THE COURT

Jasen, J.

In affirming the convictions of the defendant for robbery, the Appellate Division held that although the Trial Judge erred in failing to charge in accordance with CPL 300.10 (subd 2) that no inferences unfavorable to the defendant may be drawn from his failure to testify, the error was harmless "in view of the clear and convincing proof of defendant’s guilt.”

Charged with robbing the same individual on four different occasions, the defendant chose not to testify at his trial. Defense counsel, however, requested the Trial Judge to instruct the jury as follows: "The fact that the defendant did not testify may in no way be used against him because the prosecution always has had the burden of proof, and because the burden never shifts to the defendant, the defendant is under no obligation to prove anything by offering his testimony. I charge you that the solemn requirement of our federal constitution you may draw no inference against the defendant whatsoever whereas in this case the defendant has not testified.” The court failed to comply with counsel’s request.

The statute (CPL 300.10, subd 2) provides in pertinent part: "Upon request of a defendant who did not testify in his own behalf, but not otherwise, the court must state that the fact that he did not testify is not a factor from which any inference unfavorable to the defendant may be drawn.” (Emphasis added.) Although the People concede that the Trial Judge erred in refusing to charge as requested, it is urged, nevertheless, that the failure to comply with the statute is susceptible of harmless error analysis, enunicated in People v Crimmins (36 NY2d 230), and that the application of that analysis demonstrates that the error committed in this case is harmless. Defendant, on the other hand, contends that the mandatory language of the statute, coupled with the fundamental importance of the right it protects, renders noncompliance reversible error per se.

We believe that the statutory direction to charge this specific language, where a proper request is made, is mandatory and, except in circumstances not now contemplable, immune to harmless error analysis. It is no less obligatory than the preceding provisions in the same section of the statute which read "the court must state the fundamental legal principles applicable to criminal cases in general. Such principles include * * * the presumption of the defendant’s innocence, the requirement that guilt be proved beyond a reasonable doubt and that the jury may not, in determining the issue of guilt or innocence, consider or speculate concerning matters relating to sentence or punishment.” (Emphasis added.) Can there be any doubt that it would be reversible error for a Trial Judge to fail to inform a jury of the presumption of innocence, or that the guilt of a defendant be established by competent evidence beyond a reasonable doubt? So, too, we believe reversible error is committed where a Trial Judge fails to charge, as requested, that no inference unfavorable to the defendant may be drawn from his failure to testify during his trial. As Justice Birns in his dissent below stated (52 AD2d 813), "it is difficult to accept a judicial view that the word 'must’ in one sentence of the section of the Criminal Procedure Law under consideration, has a different meaning than the word 'must’ in another sentence in the same section.”

That the command in the statute is not a hollow one is further demonstrated by reference to legislative history. The Commission on Revision of the Penal Law and Criminal Code commented: "In its mandates concerning the principal matters which a trial judge conducting a jury trial must submit to the jury in its charge (§ 300.10) * * * the proposal is considerably more precise, clear and thorough than the existing Code of Criminal Procedure.” (McKinney’s Session Laws of NY, 1969, p 2353 [emphasis added].) The commission is clear in its characterization of CPL 300.10 as mandating that a Trial Judge submit the principal matters enumerated therein to the jury.

In Bruno v United States (308 US 287), the Supreme Court had occasion to pass on an analogous Federal statute. There, despite defendant’s request, the lower court had refused to instruct the jury that no adverse inferences could be drawn from his failure to testify. No Federal statute expressly mandated that such a charge be given, but defendant argued that section 632 of title 28 of the United States Code implicitly created this duty. In pertinent part, section 632 provides: "[T]he person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him.” The Supreme Court held that this statute implicitly required that a "no inference” charge be given when requested. Moreover, the court ruled that the refusal to so charge could not be characterized as a "technical error”, for "[o]f a very different order of importance is the right of an accused to insist on a privilege which Congress has given him.” (Bruno v United States, 308 US, at p 294, supra.)

The cogent reasoning of the Supreme Court is even more applicable to our statute which explicitly requires the Judge to give a "no inference” charge on defendant’s request. We would be remiss if we did not honor the mandate of our Legislature. So unequivocal a directive may not be swept aside by invoking harmless error analysis. This conclusion is strengthened when the nature of the right in question is scrutinized. Both the Federal and State Constitutions guarantee the right against self incrimination. By invoking this right a defendant is relieved of the duty to testify. How diluted the exercise of this right would become, if the jury were permitted to presume guilt on the basis of a defendant’s refusal to testify. To insure that the jury would not engage in such prohibited speculation, our Legislature enacted CPL 300.10 (subd 2), which requires the Judge to admonish the jury to engage in no such speculative process.

Ignoring the statutory command would likewise undermine the presumption of innocence which attaches to all those who stand accused of criminal violations, for by drawing adverse inferences from a defendant’s silence, a juror tears from him the presumption which the law has fashioned to serve as his shield. Similarly, the burden of proof, which should abide in the prosecution, would shift in large measure to the defendant.

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

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, etc.

      . Section 632 of title 28 of the United States Code provided: "In the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors, in the United States courts, Territorial courts, and courts martial, and courts of inquiry, in any State or Territory, including the District of Columbia, the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him.”

      . Section 632 of title 28 of the United States Code has been superseded by section 3481 of title 18, which provides: "In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him.”


source: Caselaw Access Project

author:
Gabrielli, J.
      Jones, J. (dissenting).

license: Public Domain

text:
    The People of the State of New York, Respondent, v Joseph Gruttola, Appellant.
    Argued October 5, 1977;
    decided November 21, 1977

      POINTS OF COUNSEL

      Lynn W. L. Fahey and William E. Hellerstein for appellant.
    I. The People failed to establish appellant’s guilt beyond a reasonable doubt. (People v Reed, 40 NY2d 204; People v Santos, 38 NY2d 173; People v Ledwon, 153 NY 10.) II. A new Wade hearing is required since the original hearing, at which the People refused to divulge the names of any of the witnesses who viewed the lineup, was inadequate and left unexplored substantial possibilities that the civilian identifications were based upon suggestive procedures. (Matter of James H.,
      34 NY2d 814; People v Harrington, 31 NY2d 785; People v Rahming, 26 NY2d 411; Sheppard v Maxwell, 384 US 333; Foster v California, 394 US 440; United States v Wade, 388 US 218.) III. Appellant’s cross-examination about an incident which bore surface similarities to the instant crime and had resulted only in charges which were later dismissed was prejudicial, and had the improper purpose of suggesting that appellant had a propensity to commit the crime for which he was on trial. (People v Sandoval, 34 NY2d 371; People v Caviness, 38 NY2d 227; People v Fiore, 34 NY2d 81; People v Schwartzman, 24 NY2d 241; People v Cook, 37 NY2d 591; People v Rahming, 26 NY2d 411; People v Van Gaasbeck, 189 NY 408; People v Arthur, 22 NY2d 325.) IV. The court’s supplementary instructions, which were directed to a single hold-out juror and stressed the duty under his oath to reach a unanimous verdict without ever mentioning his right to adhere to his honest convictions, were coercive and deprived appellant of his fundamental right to a fair trial. (People v Faber, 199 NY 256; People v Albanese, 19 NY2d 965; People v McLucas, 15 NY2d 167; People v Miles, 289 NY 360; People v Bradner, 107 NY 1.)

      Robert M. Morgenthau, District Attorney (Ann Elizabeth Lewis, Peter L. Zimroth and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v Williams, 6 NY2d 18; People v Plummer, 36 NY2d 161.) II. Defendant had a fair opportunity to challenge the identification evidence at the Wade hearing. He is not entitled to relitigate the issue. (United States v Wade, 388 US 218; People v Tutt, 38 NY2d 1011.) III. Gruttola’s denial of prior misconduct makes irrelevant the cross-examination of him as to an incident involving possession of a gun. Moreover, the issue of the prejudicial nature of such cross-examination was not preserved as a legal issue for appeal. In any event, the cross-examination was proper. (People v Caviness, 38 NY2d 227; Spencer v Texas, 385 US 554; People v Tutt, 38 NY2d 1011; People v Sandoval, 34 NY2d 371; People v Dick-man, 42 NY2d 294.) IV. The court properly instructed the jury as to their duty to discuss their opinions and áttempt to reach a verdict. (People v Fonseca, 36 NY2d 133; People v Reynolds, 25 NY2d 489; People v Simmons, 22 NY2d 533, 393 US 1107; People v Faber, 199 NY 256; People v Randall, 9 NY2d 413; People v Albanese, 19 NY2d 965.)
   OPINION OF THE COURT

Gabrielli, J.

The defendant stands convicted of robbery in the first degree, two counts of assault in the first degree, three counts of attempted assault in the first degree and possession of a weapon as a felony, all following a jury trial. These charges stem from the armed robbery of O’Lunney’s Steak House in New York City, during which a patron and a police officer were shot by the robber. The Appellate Division unanimously affirmed the convictions.

In the early morning hours of December 21, 1972 Officers Woodrow Dury and Dennis Dowd were on anticrime patrol in Manhattan when they spotted a suspicious looking person who was walking back and forth in an unusual manner. Officer Dury noted that the man was not well dressed, wearing a hat that was a "little small”. The man was later described as wearing a topcoat and a hat pulled down over his forehead. The officers followed the man to O’Lunney’s Steak House. During the course of this investigation they were joined by Officers James Ward and Richard Rossi who were also on anticrime patrol. Officer Rossi parked his patrol car and waited while Officer Ward joined the other policemen, following the suspect into the restaurant. Upon entering the premises the officers positioned themselves close to the suspect in a well-lighted spot near the front bar area which, the testimony shows, provided them, with a good opportunity to observe.

After ordering a drink the suspect walked over to the center of the bar, looked at the open drawer of the cash register, and started to walk away when suddenly he pulled a gun and ordered all present to the back of the bar. Looking directly at Officer Dury, he declared "This is it. This is a stick-up * * * get in back big timer”. Most of the patrons started to withdraw to the back of the bar and the officers moved to a side alcove.

Edward Blagden, one of the customers at the bar, refused to comply with the demand to back up and as he edged slightly closer, the gunman shot him through the right thigh. Blagden fell to the floor. Eammon Doran, the bartender, startled by the shot, looked up and recognized the gunman, who was then repeating his order to "get in back”. The shot also drew the attention of Shaun Flynn, another customer, who looked at the gunman and recognized him from earlier in the evening when Flynn had been sitting about five feet from him at the bar.

As people were moving back, Officer Dowd stepped out from the alcove and lunged at the robber and ordered him to drop the gun. But the gunman pulled away and shot Dowd in the stomach, saying "Take that, you —”. The gunman then ordered Dowd, wounded and suffering, to go to the cash register and empty the money drawer. Grabbing the money, approximately $280, the gunman exited the bar, warning everyone to remain still for five minutes. Officers Dury and Ward started out of the alcove to pursue the gunman who suddenly reappeared, repeated his warning, and then again left.

Officers Dury and Ward immediately pursued the gunman into the street where they saw him, still wearing a hat, running across 49th Street. Rossi, who was still waiting in the patrol car, joined his companions. The gunman crossed Second Avenue and turned east on 50th Street. As the officers reached the corner of Second Avenue and 50th Street, Dury used his walkie-talkie to call for assistance. Officers Ward and Dury then called to the fleeing gunman, "Police, drop the gun”. In response the gunman turned and fired a shot at the officers who each returned a shot. Within seconds, a patrol car operated by Officers Robinson and Moeser answered the call for assistance and Officer Ward pointed to the gunman who was continuing his flight down 50th Street. The patrol car took chase and finally stopped the gunman at the corner of First Avenue. The man resisted but the police subdued him, handcuffed him and placed him in the back of a police car.

During the chase, Officer Dury who was pursuing on foot, had seen the man drop his gun and fling the money away. Likewise, Officer Moeser from his position in the patrol car had observed the gunman throw certain items away. Moeser later returned to the spot where he had seen something tossed aside and recovered money which was unquestionably identified with the robbery. The gun was recovered on the north side of 50th Street by Officers Ward and Dury. Finally, the gunman’s hat, which had been knocked off during his struggle with the police, was thrown into the police car with the suspect.

Basically, the acts of the robbery and the shooting are undisputed. Defendant contends, however, that this is a case of mistaken identity. During trial defendant testified that he had come downtown for dinner and a show, his wife remaining at home to complete various chores in preparation for the upcoming holidays; that at 2:30 a.m. he returned to his car only to find that he had a flat tire. Additionally, he stated that after repairing the tire he started to drive home down 50th Street when he noticed an antique store at the corner of Second Avenue; that although it was after 3:00 a.m. he parked his car and walked to the store to window shop because his wife was interested in an antique lamp. He further testified that he then heard a shot and saw a man. waving a gun. Thinking this to be a mad gunman, he allegedly ran down 50th Street to avoid a dangerous situation when he spotted a police car and ran towards it to report the shooting, and that the officers grabbed and arrested him. In support of his version of the facts the defendant presented a number of respected witnesses who attested to his good character.

On this appeal defendant asserts that the People failed to prove his guilt beyond a reasonable doubt. Essentially, the issue is one of identification and the identification testimony was extensive. At trial, Police Officers Dury, Dowd and Ward identified the defendant as the man they followed into the bar, who had committed the robbery and who was later apprehended in the street. In addition three civilian witnesses identified defendant as the robber and assailant. Witness Blagden, who looked directly at his assailant when he was shot while in the bar, also identified defendant. Likewise, Flynn who had been sitting within five feet of the gunman in the bar, pointed to defendant as the man who committed the robbery. And the bartender, Eammon Doran, who had served defendant a drink, corroborated this identification testimony. Even one of the defense’s own witnesses, Feti Island, a customer in the bar on the evening in question, to the apparent surprise of everyone made an in-court identification.

Officer Moeser, who joined in the pursuit following the robbery, testified that he observed the defendant throw away the gun and money later identified with the robbery, which further linked the defendant to the robbery and the shooting.

The defense places great weight on the fact that the witnesses testified that during the robbery the gunman was wearing a hat pulled down over his forehead. A hat, identified as the one the robber wore, was produced at trial. The defendant claimed that he never wore a hat and that this particular hat could not be his because it was too small. This issue was placed squarely before the jury and in fact, the defendant demonstrated the fit of the hat by putting it on during the trial.

The defense contends that the gun recovered and identified as the one used in the robbery, was found with six live bullets in it. The gun was designed to hold eight shells and the testimony indicated that the gunman fired three times. The defense asserts that these facts raise doubts about the credibility of the police testimony. There was, however, expert testimony that the gun could be overloaded to hold nine bullets. Finally the defense raises a number of other minor inconsistencies in testimony in order to discredit the prosecution’s witnesses.

As noted, there were seven witnesses who identified the defendant as the man who robbed the restaurant, and shot the two people. These witnesses consisted of three police officers, three civilians introduced by the prosecution and one civilian introduced by the defense, all of whom agreed that the defendant committed the crime. These witnesses testified in detail, subject to extensive cross-examinations and the defense proof reflected solely upon their credibility. Issues of credibility are primarily for the jury (People v Erwin 42 NY2d 1064; People v Richardson, 41 NY2d 886, 887) and there was clearly sufficient evidence in quantity and quality to send this case to the jury for a verdict (People v Joyiens, 39 NY2d 197, 203). The allegations of the defendant merely challenge the credibility of the witnesses and place in dispute only findings of fact made by the jury and unanimously affirmed by the Appellate Division. But this court is without power to review determinations of fact unless it can be said, as a matter of law, that they are unsupported, or that they are incredible (NY Const, art VI, §3; People v Oden, 36 NY2d 382, 386; People v Leonti, 18 NY2d 384, 390-391; Cohen and Karger, Powers of the New York Court of Appeals, § 198, p 742). By no stretch of the imagination can it be said that the testimony of all of these witnesses was incredible as a matter of law and thus, since the Court of Appeals, by constitutional constraint, is only a court of law, we may not disturb the findings made below. Neither, of course, does this court have the discretionary power of the Appellate Division to review the facts (CPL 470.15). We are thus confined by the limits of our jurisdiction, which we may not enlarge in violation of the constitutional proscription placed upon this court. In view of the overwhelming identification testimony, we cannot say that the order of the Appellate Division was improperly made and the jury verdict improperly reached.

Before trial defendant moved to suppress identification evidence because of alleged improprieties in the pretrial identification procedures. A. pretrial hearing was held to determine whether the identification testimony of the civilian witnesses was based on an impermissibly suggestive lineup (United States v Wade, 388 US 218; People v Harrington, 31 NY2d 785, 786; People v Logan, 25 NY2d 184, 188). Defendant’s counsel requested at the lineup that an independent photographer be permitted to photograph the lineup, that a stenographer be present and that defense be given the names of all the witnesses present. These requests were denied by the prosecutor and the defense contends that this denial constitutes reversible error.

There is no evidence that the lineup procedure employed by the police was in any way prejudicial or suggestive. Defendant’s counsel was present during the lineup and had a full and complete opportunity to observe the procedure used. Photographs, which were made available to the defendant, were taken of the lineup and introduced into evidence at the hearing. Finally, at the pretrial hearing the court ordered that the names of all witnesses who participated in the lineup, including those who were unable to make an identification, be turned over to defendant’s counsel. These, too, were made available to defendant. None of defendant’s complaints speak directly to the issue whether the lineup was suggestive, and the hearing court found no such evidence. Under the circumstances the motion to suppress was properly denied (see People v Blake, 35 NY2d 331, 340; People v Logan, supra; People v Reeves, 49 AD2d 537, affd 39 NY2d 1047).

We do not reach the question of the impropriety of the supplemental charge since no objection or exception was taken and thus the issue was not preserved for our review (People v Fonseca, 36 NY2d 133, 137). We have examined the other contentions, not seriously pressed, and find them to be without merit.

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

Jones, J. (dissenting).

With full respect for my associates in the majority, I must observe that they misconceive and fail to address the only real contention which defendant has persistently pressed throughout the entire course of this criminal proceeding and which has troubled every Judge who has had any part in this case before it reached our court—is this a case of horrendous misidentification because, for reasons which may be inferred, the attribution of guilt to this defendant had been predetermined? If there were no more to the case than is recited in the majority opinion I would be an entirely satisfied member of that majority. But there is more, and it is disturbing and troubling to the degree that I must dissent. The question goes to the heart of our criminal justice jurisprudence, and is not insulated from our responsibility of review by the intervention of a jury verdict for which, in a narrow gauge, it may perhaps be said that there was sufficient evidence, when the record as a whole demonstrates that the verdict cannot stand.

In this most unusual case several factors converge to impel me to the conclusion that, as a matter of law, this defendant’s guilt has not been established beyond a reasonable doubt. Indeed, I am persuaded that it very early became impossible for this defendant to have a fair, objective trial.

It all started when, although at one turn in their chase they had lost sight of the fleeing gunman, the police had administered a brutal beating to defendant as they arrested him. (This may have been understandable in human terms because to their knowledge a fellow undercover officer had just been shot in the abdomen in cold blood and then, severely wounded, had been forced by the gunman to drag himself to open the cash register at O’Lunney’s Steak House.) There was immediate and widespread publicity as to the details both of the shooting and of defendant’s capture as well. Publicity and coercive attention escalated further when defendant was released on only $500 bail. To have thrashed even a guilty man mercilessly would have been hard enough to justify; to have it turn out that the man so cruelly beaten might be innocent would have been intolerable to police and community alike. These circumstances, not surprisingly, operated to expose the various law enforcement agencies and even the media to temptation to prejudgment which was thereafter beyond repair or recall. There was pressure, almost irresistible, quickly and surely to hang this crime on someone; and, after all, defendant had been on the scene and at the critical moment, and the police had set upon him as though there was no doubt as to his guilt.

The very extensive, detailed and persuasive testimony of impressive character witnesses as to defendant’s prior character, habits of general conduct, dress and speech and reputation as a business and family man of long standing was wholly inconsistent with any belief that this was the man who had committed the crimes of which he was charged. On the other side, the identification testimony, while it surely might have been sufficient in the normal case, was not strong, and this was not a normal case. All identifications, other than by the interested police, were based on brief observations in a very dark, crowded bar by men who had been drinking heavily. The witnesses could have been exposed to impermissible identification procedures, but defense counsel was prevented from exploring this possibility. The police refused to permit the attorney at the station house lineup to make a transcription or to photograph the lineup. The prosecution had refused to divulge the names of the identifying witnesses. It was only after the conclusion of the pretrial identification hearing and the denial of the motion to suppress that the court ordered their disclosure. By these means effective inquiry and assessment as to the opportunities for independent source identification and the possibility that there had been improperly suggestive prelineup procedures was frustrated. In this circumstance the untested identification testimony could never be said to be strong.

Throughout the trial there occurred a continuing series of individually minor but genuinely disconcerting events, each of which singly invited some doubt that defendant was in fact the assailant:—the ill-fitting hat dropped by the fleeing gunman against the overwhelming testimony that defendant never even wore a hat; the police testimony of the monotonous, four-letter obscenity repeatedly uttered from his stretcher by defendant whose acquaintances said he never swore or cursed; the necessity that there have been a ninth round in what was normally an eight-cartridge pistol to explain the remaining six live rounds and to jibe with the proof that the gunman had fired three shots; the absence in a case of this special significance of any proof or explanation as to possible fingerprints on the gun; the failure of the prosecutor to introduce or to make available the results of the paraffin test performed on defendant. That a savage crime had been committed there can be no doubt; that this defendant was its perpetrator is a wholly different matter.

Recurring misdoubt has been evoked at each stage of the judicial consideration of this case. First, bail was fixed at an absurdly low figure for one charged with the crimes for which defendant was arrested. The two-hour resistance of the holdout juror to what can only be characterized as coercive supplemental instructions was unusual. Then, on pronouncing sentence the Trial Judge articulated his own misgivings. "[V]ery frankly, I cannot in good conscience reconcile the actions of this defendant, resulting in this conviction, with his background. It’s almost impossible to see how he got himself involved in the situation for which he stands before this bar today. * * * If I did not have a psychiatric report from the clinic which reveals to this Court that there are no findings of emotional illness or psychiatric recommendations, I would be inclined to feel this defendant is a schizophrenic and he’s been living or attempted a Dr. Jekyll and Mr. Hyde life, because one cannot possibly reconcile his actions on one behalf with that of the other.” The Appellate Division in affirming defendant’s conviction, wrote (53 AD2d 821): "Any difficulty in reconciling the apparent inconsistency between the crimes charged against defendant and his prior character, habits and reputation was resolved by the jury after a trial that we find free of any prejudicial error. Nevertheless, we suggest that the inconsistent factors above mentioned should appropriately be given early scrutiny by the Parole Board toward ameliorating the consequences of any claimed miscarriage of justice arising out of the conviction(Emphasis added.)

The combination of all these factors, in impact greater than the sum of their individual meanings—in truth a synergism— impels me to the conclusion that the proof in this case was insufficient, as a matter of law, to convict defendant beyond a reasonable doubt. In this circumstance it becomes our judicial responsibility to set aside defendant’s convictions. "This court has for a long time and still does review a record in a criminal action as a whole and is empowered and obliged to conclude on a deficient record that guilt has not been established beyond a reasonable doubt as a matter of law [citations omitted].” (People v Santos, 38 NY2d 173, 175-176; People v Reed, 40 NY2d 204, 208.) One is also agonized by the recollection of the eventually conceded misidentification of the defendant in People v Whitmore (28 NY2d 826). If there be a miscarriage of justice here it cannot be ameliorated by Parole Board action as the Appellate Division suggested. The responsibility is judicial on this record.

Accordingly, for the reasons stated I dissent and would reverse the order of the Appellate Division, vacate the judgment of conviction and dismiss the indictment.

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

Order affirmed.

       A $50 bill recovered by the police had been marked, because of its uniqueness, by the bartender earlier that evening.


author: Wachtler, J.

text:
    In the Matter of Angelie C. Parker, Appellant, v Harold Stage, Respondent.
    Argued October 14, 1977;
    decided November 21, 1977

      POINTS OF COUNSEL

      John D. Bright for appellant.
    I. Emancipation of a child under 21 does not relieve a parent of the obligation to support set forth in section 101 of the Social Services Law. (Matter of Roe v Doe, 29 NY2d 188; Matter of Bickford v Bickford, 55 AD2d 719.) II. Section 101 of the Social Services Law should be liberally construed. (Landes v Landes, 1 NY2d 358, 352 US 948; Fuller v Galeota, 271 App Div 155; Rutecki v Lukaszewski, 273 App Div 638; Matter of Salm, 171 Misc 367, 258 App Div 875, 282 NY 765; Haimes v Schonwit, 268 App Div 652, 295 NY 577; Wayne County Dept, of Social Servs. v Schultz, 81 Misc 2d 603; Matter of Bates v Bates, 62 Misc 2d 498; Carole K v Arnold K, 85 Misc 2d 643; Matter of Rudnick v

      Rudnick, 55 Misc 2d 532; Diana L. v State of New York, 70 Misc 2d 660.)

      Luke M. Charde for respondent.
    I. When a person under the age of 21 years and over the age of 18 years abandons the parental home to avoid parental control, that person forfeits his/her right to support. (Matter of Roe v Doe, 29 NY2d 188; Matter of Bickford v Bickford, 55 AD2d 719; Matter of Trosk v Board of Elections, 262 NY 430; People ex rel. Outwater v Green, 56 NY 466; Caesar v Bernard, 79 Misc 224, 156 App Div 724, 209 NY 570; Betz v Horr, 250 App Div 457; Matter of Jones v Jones, 51 Misc 2d 610.) II. Acceptance of the Social Service Department’s interpretation of section 101 of the Social Services Law and section 415 of the Family Court Act would unconstitutionally deprive respondent of equal protection of the laws under the Fourteenth Amendment of the United States Constitution and section 11 of article I of the New York State Constitution. (Matter of Roe v Doe, 29 NY2d 188; Matter of Malpica-Orsini, 36 NY2d 568; Prince v Massachusetts, 321 US 158; Meyer v Nebraska, 262 US 390; Pierce v Society of Sisters, 268 US 510; Stanley v Illinois, 405 US 645; Griswold v Connecticut, 381 US 479; Wayne County Dept of Social Servs. v Schultz, 81 Misc 2d 603; Matter of Salm, 171 Misc 367.) III. To allow the department’s interpretation of section 101 of the Social Services Law and section 415 of the Family Court Act would unconstitutionally deprive respondent of due process of law under the Fifth and Fourteenth Amendments of the United States Constitution and section 6 of article I of the New York State Constitution. (Matter of McClancy, 182 Misc 866, 268 App Div 876, 294 NY 760; Betz v Horr, 276 NY 83; Department of Welfare of City of N Y. v Siebel, 6 NY2d 536; Matter of Jesmer v Dundon, 29 NY2d 5; Stanley v Illinois, 405 US 645; Townsend v Swank, 404 US 282.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether the Department of Social Services can compel a father to pay for the support of his 18-year-old daughter after she has left his house, voluntarily and against his wishes, to live with her paramour and have a child. Both the Family Court and the Appellate Division held that, under the circumstances, the father should not be obligated to support his daughter even though she is receiving public assistance. The Commissioner of Social Services has appealed to this court by leave of the Appellate Division.

The facts developed at the Family Court hearing were not disputed. Respondent’s daughter was born in September of 1956. Several years later the father and mother were divorced. After the divorce the girl remained in her father’s custody. In early 1974 she informed her cousin that she intended to leave home to live with her paramour and have a child. Although neither she nor her boyfriend were employed, she said that she intended to support herself and her child by seeking public assistance. She did not return to school in the fall of 1974. In October, shortly after her 18th birthday, she left home while her father was at work. Nearly two weeks later he was able to locate her with the assistance of the police.

She returned home and for several months resided with her father, but only intermittently. For long periods of time she would "disappear”. On each occasion her father accepted her back and continued to support her. He contacted her former guidance counselor and arranged for her to return to school. He informed her of this and continuously urged her to resume her schooling but she refused. She also refused to discuss her goals with him. At one point he helped her to obtain a job, but she quit after four weeks. For a time she was in a job training program but she quit that as well. Finally in the spring of 1975 she took up permanent residence with her paramour who was also unemployed.

In the fall of 1975 respondent’s daughter gave birth to a child out of wedlock. She then applied for aid to dependent children and obtained public assistance for her child and for herself, as the mother of an eligible child (Social Services Law, § 349). In February, 1976 the Commissioner of Social Services of Orange County commenced this proceeding in the Family Court to compel the respondent to contribute toward his daughter’s support. The proceeding was brought pursuant to subdivision 3 of section 101-a of the Social Services Law which authorizes a social services official to institute a support proceeding against a parent or other responsible relative if the applicant or recipient of public assistance "fails” to do so.

At the conclusion of the hearing the Family Court Judge dismissed the petition on the ground that respondent’s daughter, by leaving home to live with her paramour and have his child, had "emancipated herself from her father and his household * * * and * * * as a result of that emancipation, the respondent is relieved of any obligation to support” her.

The Appellate Division unanimously affirmed. They noted that in Matter of Roe v Doe (29 NY2d 188, 192, 194), we held that when a child of employable age "and in full possession of her faculties, voluntarily and without cause, abandons the parent’s home, against the will of the parent and for the purpose of avoiding parental control she forfeits her right to demand support * * * [S]he cannot enlist the aid of the court in frustrating that authority, reasonably exercised, by requiring that her father accede to her demands and underwrite her chosen life style.” "Similarly”, the Appellate Division held, "the child should not be able to enlist the aid of the Department of Social Services to frustrate reasonably exercised parental authority” (55 AD2d 662, 663).

On appeal to our court the commissioner admits that respondent’s daughter "willfully abandoned her home with her father” and thus would be unable to compel him to support her if she had brought the suit on her own behalf (Matter of Roe v Doe, supra). The commissioner argues however that when the suit is brought by a social welfare official pursuant to section 101 of the Social Services Law the duty to support "is absolute upon a showing of sufficient ability on the part of the parent. There is no other qualification or exception in the statute.”

Initially it should be noted that even in a case like Matter of Roe v Doe (supra), when the suit is brought directly on the child’s behalf pursuant to section 413 of the Family Court Act, the father’s obligation to support is stated in mandatory terms. Our determination in that case, that a child who voluntarily and without good cause abandons the parent’s home "forfeits her right to demand support” is not based on any express statutory exception. It rests on the State policy of fostering "the integrity of the family” by precluding the courts from interfering in the special relationship between parent and child, absent "a showing of misconduct, neglect or abuse” (Matter of Roe v Doe, supra, pp 191, 194). It recognizes that the father’s obligation to support includes the right to exercise parental control and guidance even though the child may be old enough "to elect not to comply” (Matter of Roe v Doe, supra, p 194).

The question then is whether a different policy applies when the suit is brought by a public welfare official to compel a father to support a child who would otherwise become a public charge.

It was once the policy of this State to place the financial burden of supporting needy individuals upon designated relatives, rather than the public, in order to reduce the amount of welfare expenditures (see, e.g., Foster, Freed & Midonick, Child Support: The Quick and the Dead, 26 Syracuse L Rev. 1157, 1162). Thus the common-law obligation to support wife and minor children was expanded by statute to include adult children, grandchildren and parents when they would otherwise become public charges (see, e.g., former Domestic Relations Ct Act, § 101, subds 1, 4, 5; former Children’s Ct Act, § 31, subds 4, 5; Family Ct Act, former § 415).

In recent years however the Legislature relented. The laws were amended to relieve individuals of the obligation to support grandchildren (L 1965, ch 674, § 1), adult children and parents (L 1966, ch 256) who were unemployed and destitute. Thereafter the burden passed to the public. In a message accompanying the 1966 bill the Governor noted that this was in part prompted by the need to comply with Federal law in order to qualify for Federal financial assistance. But he also noted that "Experience has shown that the financial responsibility of a broad class of relatives, imposed by statute, is more often a destructive, rather than cohesive, factor in family unity” (McKinney’s Session Laws of NY, 1966, pp 2989, 2990). Thus the legislative history shows that the current statutory scheme recognizes the need to preserve family unity even though the consequence is to place needy relatives on the public welfare rolls.

In addition the Legislature has expressly granted the courts discretionary powers in these cases. A father, of course, is still generally obligated to support his children until they are 21 years of age (Family Ct Act, §§ 413, 415; Social Services Law, § 101, subd 1; cf. Domestic Relations Law, § 32, subd 2). And public welfare officials may seek to enforce the obligation if the child is an applicant for or recipient of public assistance (Social Services Law, § 102, subd 1; § 101-a, subd 3; Family Ct Act, § 422, subd [a]). But in such cases the obligation is not absolute. Section 415 of the Family Court Act states: "The spouse or parent of a recipient of public assistance or care or of a person liable to become in need thereof or of a patient in an institution in the department of mental hygiene, if of sufficient ability, is responsible for the support of such person or patient, provided that a parent shall be responsible only for the support of his child or children who have not attained the age of twenty-one years. In its discretion, the court may require any such person to contribute a fair and reasonable sum for the support of such relative and may apportion the costs of such support among such persons as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case and their respective means”. (Emphasis added.) The committee which drafted the Family Court Act noted in its report that section 415 consolidated certain sections from prior laws "but substitutes for the current mandatory language a discretionary provision.” The change was designed to permit the courts to refuse to compel support when it might lead to an injustice in a particular case (see Committee Comment to Family Ct Act, § 415, McKinney’s Cons Laws of NY, Book 29A, p 259).

In sum we cannot agree with the commissioner that whenever an older child chooses to leave home, for any reason, the parents must pay for the child’s separate maintenance, or contribute support, if the child applies for public assistance. The courts must still consider the impact on the family relationship and the possibility of injustice in the particular case. Of course the fact that the child is eligible for public assistance may, as is evident here, permit her to avoid her father’s authority and demands however reasonable they may be. But it does not follow that the parent must then finish what has been begun by underwriting the lifestyle which his daughter chose against his reasonable wishes and repeated counsel.

It should be emphasized that this is not a case of an abandoned child, but of an abandoned parent. There is nothing to indicate that the respondent abused his daughter or placed unreasonable demands upon her. There is no showing that he actively drove her from her home or encouraged her to leave in order to have the public assume his obligation of support. Indeed the contrary appears to be true. The undisputed proof in this record establishes that the father continuously supported his daughter from birth; that he urged her to remain at home and continue her schooling; that he was a forgiving parent who always accepted her back after her absences and that he made efforts to obtain employment for her. We simply hold that under these circumstances the courts below could properly refuse to compel him to pay for her support when she chose to leave home to live with her paramour.

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

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

Order affirmed, with costs.

       It is conceded that respondent is not responsible for the support of his grandchild.


author: Fuchsberg, J.

text:
    In the Matter of South Colonie Central School District, Appellant, v Patrick Longo, as President, South Colonie Teachers Association, Respondent.
    Argued September 7, 1977;
    decided November 21, 1977

      POINTS OF COUNSEL

      C. Theodore Carlson for appellant.
    I. There is no contractual provision requiring arbitration of this grievance. (Chemical Workers v Pittsburgh Glass, 404 US 157; Mine Workers v Pennington, 381 US 657.) II. The no-reprisal clause does not apply to Carol Landau. (Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122.) III. This is an appropriate case to stay arbitration. (Steelworkers v American Mfg. Co., 363 US 564; Steelworkers v Warrior & Gulf Co., 363 US 574; Steelworkers v Enterprise Corp., 363 US 593; Atkinson v Sinclair Refining Co., 370 US 238; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 52 AD2d 400; Russell v Hodges, 470 F2d 212.) IV. There is a plain and clear prohibition requiring the stay of the arbitration sought herein. (Syracuse Teachers Assn, v Board of Educ., 35 NY2d 743; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137.)

      Richard E. Casagrande, Bernard F. Ashe and Richard C. Heffern for respondent.
    I. Judicial review of an application to stay public sector grievance arbitration is severly restricted by CPLR article 75 and by the decisional law of this State. (Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Belmont Cent. School Dist. v Belmont Teachers Assn., 51 AD2d 653; Matter of Long Is. Lbr. Co. v Martin, 15 NY2d 380; Matter of City School Dist. of City of Poughkeepsie [Poughkeepsie Public School Teachers Assn.], 35 NY2d 599;
      Matter of Board of Educ. [Auburn Teachers Assn.], 49 AD2d 35; Matter of Wappingers Cent. School Dist. v Wappingers Congress of Teachers, 51 AD2d 766.) II. The lower court correctly held that this grievance dispute was presumptively arbitrable. (Mine Workers v Pennington, 381 US 657; Chemical Workers v Pittsburgh Glass, 404 US 157; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Labor Bd. v Borg-Warner Corp., 356 US 342.) III. The employer has not demonstrated that it was prohibited from agreeing to submit this dispute to arbitration. (Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Sheets v Sheets, 22 AD2d 176; Schneider v Schneider, 17 NY2d 123.)
   OPINION OF THE COURT

Fuchsberg, J.

We are called upon to determine the arbitrability of a dispute involving a no-reprisal clause in a public sector collective bargaining agreement between the South Colonie Central School District and the South Colonie Teachers Association. Special Term denied the district’s petition to stay the arbitration demanded by the association. The Appellate Division affirmed by a vote of three to two. For the reasons which follow, we now uphold its determination.

The facts are undisputed. Between September 4 and September 19, 1975, the association, during the course of a strike which it was conducting against the district, set up a picket line around its buildings. Carol Landau, a clerical employee of the district and not a member of the teachers’ collective bargaining unit, would have had to cross the picket line in order to report to work. She did not do so. Thereafter, the district elected to terminate her employment and has affirmatively specified its reason for doing so as her absence "from her assigned duties without permission for a period of twelve days”; those were the days on which she had respected the picket line.

At the conclusion of the strike, the teachers’ association and the school district entered into a collective bargaining agreement. In doing so, the parties were acting consistently with the stated policy of the Taylor Law to encourage "public employers and such employee organizations to agree upon procedures for resolving disputes” (Civil Service Law, § 200). The agreement they reached contained mutual "no-reprisal” clauses in these words:

"The South Colonie Central School District * * * agrees it will not engage in any acts of reprisal against anyone because of their participation in the job action of September 4,5,8,9,10,-11,12,15,16,17,18,19, 1975” (emphasis added). (It is clear from a physical examination of the signed agreement that the word "anyone” was substituted for the words "any teachers” in the original typed text before it was executed.)

"The South Colonie Teachers Association * * * agrees it will not engage in any acts of reprisal against anyone who worked during the aforementioned time or against any other district employees or against any school official” (emphasis added).

These provisions were followed immediately by the following sentences:

"The [district] agrees not to institute any further court proceedings related to the above referred to job action except as may be required by law.

"Notwithstanding the above this agreement shall in no way limit the district in proceeding to enforce the specified penalty provisions of the Taylor Law.”

The association maintains that Ms. Landau’s discharge was in contravention of the first of the quoted clauses. The district having refused to participate in the contractual grievance procedures which the association attempted to pursue on her behalf, the association invoked the grievance procedure’s Step 3, which provides for final and binding arbitration under the rules of the American Arbitration Association. In essence, the position of the district is that, irrespective of whether the language of the agreement may be read to indicate an intent to cover nonunit employees as third-party beneficiaries, the grievance machinery is not applicable to an employee who is not a member of the collective bargaining unit represented by the association.

The contract defines an arbitrable grievance as one "based upon an event or condition which affects the terms and conditions of employment of a teacher or group of teachers and/or the interpretation or meaning of any of the provisions of this Agreement” (emphasis added).

The two pivotal questions raised for us by these facts are whether the arbitration claim with regard to the subject matter of the dispute here (a no-reprisal clause which, if read as the association contends it should be, could be found to apply to an employee other than a member of the teachers’ unit) falls within the permissible scope of article 14 of the Civil Service Law (the Taylor Law) (Matter of Acting Superintendent of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 513) and, if it does, whether the parties’ agreement to arbitrate is sufficiently "express, direct and unequivocal as to the issues or disputes to be submitted” (p 511).

Since the scope of the agreement to arbitrate appears to require only brief comment, we turn to it first. On its very face, it is not a narrow one. As already noted, when the school district and the teachers’ association voluntarily reached accord to arbitrate future grievances, they comprehensively included controversies "based upon an event or condition which affects the terms and conditions of employment” and "the interpretation or meaning of any of the provisions of th[e] Agreement”. The district thereby undertook to commit a very broad range of issues to ultimate arbitral determination.

Moving then to the validity of the agreement to arbitrate, preliminarily we observe that, even absent a no-reprisal clause, a union may invoke grievance and arbitration procedures on behalf of a nonmember whose treatment by a common employer may adversely affect the position of its own members (Matter of Board of Educ. [Auburn Teachers Assn.], 49 AD2d 35, 39, mot for lv to app den 38 NY2d 740). A fortiori, it may do so when a no-reprisal agreement exists. A primary objective of such a provision, though concerned also with nonsignatories, may be to protect or further the interests of the signatories themselves.

Minimization of the likelihood of disharmony in the parties’ future labor relations is a concern which, in the judgment of the parties, may well be served by letting "bygones be by-gones” (Republic Aviation Corp. v Republic Lodge No. 1987, IAM, 10 Misc 2d 783, 796 [Pette, J.]). The question as to whether the no-reprisal proviso now before us in fact had such a purpose and was intended to include employees other than those who were part of the teachers’ bargaining unit would, unless proscribed by limitations on the scope of arbitration permitted under the Taylor Law, be a matter embraced within the parties’ undertaking to arbitrate the agreement’s "interpretation or meaning”.

Turning now to the Taylor Law as it has been "variously limited” (Matter of Acting Superintendent [Liverpool], supra, p 513), we find in it no interdiction of the commitment of the district to the no-reprisal clause in the context of the agreement in which it is found here. Significantly, it is coupled with the district’s specific reservation of its right to seek enforcement of the sanctions provided by statute against its striking employees under the Taylor Law (Civil Service Law, § 210), and it is not contended here that the discharge of Ms. Landau came about by reason of, or was required by, any implementation of the statute.

Furthermore, Ms. Landau did not demand the arbitration and she is not a party to this proceeding. It is the association, acting under the agreement between itself and the district, which called for the arbitration. We cannot say "that, in doing so, it did not act in furtherance of the interests of its members. The clause by which the teachers agreed not to engage in any acts of reprisal was hardly one which it can be said was not in the legitimate interest of the district when it bargained for it. And it no more can be said that the no-reprisal clause by which the district agreed, for its part, to engage in no reprisals did not bear on such concerns of the association as membership morale, future bargaining effectiveness, and the potential impact of these on the terms and conditions of employment of its members. Under all the circumstances, we therefore also do not perceive any prohibition against the district’s agreement to the clause here in "[p]ublic policy, whether derived from, and whether explicit or implicit in statute or decisional law, or in neither” (Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’Assn.], 37 NY2d 614, 616-617).

Nor does the fact that Ms. Landau was a provisional public employee subject to removal at will alter the situation. If it can be demonstrated to the satisfaction of the arbitration tribunal that the reason for dismissal was one in violation of the limitation permissibly assumed by the district under the no-reprisal clause, this violation could form a basis for determination that the discharge was wrongful. The "power to dismiss without explanation should not be deemed a license to violate [this] bargained for” right (Board of Educ. v Chautauqua Cent. School Teachers Assn., 41 AD2d 47, 52, cited in Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167). Upon a finding of such violation, the remedy fashioned by the arbiters, however, would need to be one compatible with her provisional status.

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

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

Order affirmed, with costs.


author: Gabrielli, J.

text:
    Donald J. Riley, Individually and on Behalf of All Other People Similarly Situated, et al., Appellants, v County of Monroe et al., Respondents.
    Argued October 11, 1977;

    decided November 21, 1977

      POINTS OF COUNSEL

      J. William Ernstrom and Paul J. Yesawich, III, for appellants.
    I. Monroe County Resolution No. 380 of 1974 denies appellants the equal protection of the laws because even if the county can advance a rational basis for the discrimination, less objectionable alternatives were available and not employed. (Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326; Matter of Malpica-Orsini, 36 NY2d 568; Stanton v Stanton, 421 US 7; Jimenez v Weinberger, 417 US 628; Reed v Reed, 404 US 71; Matter of Stoltz v Water Power & Control Comm, of Conservation Dept, of State of N. Y., 258 App Div 440; Matter of Town Bd. of Town of Onondaga v County of Onondaga, 82 Misc 2d 163; Matter of Long Is. R. R. Co. v Hylan, 240 NY 199; Stuart v Palmer, 74 NY 183.) II. The decision of the court below should be reversed because there are, at the very least, issues of fact as to whether respondents have a county-wide plan for the collection and disposal of solid waste, and whether respondents have acted with reasonable speed in implementing such a plan. (Matter of Long Is. R. R. Co. v Hylan, 240 NY 199.) III. Appellant Town of Greece has standing to sue in this matter because it has a personal stake in this litigation and has alleged an injury in fact. (Andraka v Town of Pompey, 1 AD2d 427; Data Processing Serv. v Camp, 397 US 150; Baker v Carr, 369 US 186.)

      John D. Doyle and William J. Stevens for respondents.
    I. The court below correctly dismissed appellants’ complaint based upon respondents’ motion for summary judgment. (Talcott v City of Buffalo, 125 NY 280; Ziegler v Chapin, 126 NY 342; Dunning v County of Orange, 139 App Div 249; McBride v Ashley, 91 Misc 585, 174 App Div 650; Kaskel v Impellitteri, 306 NY 73, 347 US 934; Matter of Cruger, 84 NY 619; Kittinger v Buffalo Traction Co., 160 NY 377; Altschul v Ludwig, 216 NY 459; Stahl Soap Corp. v City of New York, 5 NY2d 200; Sengelaub v Town of Smithtown, 29 Misc 2d 655.) II. Resolutions No. 512 of 1970 and No. 380 of 1974 are not inconsistent with article 5-A of the County Law. (Public Serv. Comm, of State of N. Y, Second Dist. v New York Cent. R. R. Co., 193 App Div 615; Chamberlain v Chamberlain, 43 NY 424; Matter of Schulz v Cermak, 1 Misc 2d 1063; Village of Croton-on-Hudson v County of Westchester, 38 AD2d 979, 30 NY2d 959; People v Bouton, 71 Misc 2d 1095; Matter of West, 175 Misc 1044; Blaine Personnel v Lee Organization, 76 Misc 2d 110.) III. The Legislature’s action under Resolution No. 380 of 1974 is not an abuse of legislative discretion nor an abridgement of appellants’ constitutional rights. (People v McNair, 46 AD2d 476, 37 NY2d 100; McGowan v Maryland, 366 US 420; Garcia v Pan Amer. Airways, 183 Misc 258, 269 App Div 287, 295 NY 852, 329 US 741; People v Crane, 214 NY 154, 239 US 195; Zorach v Clauson, 303 NY 161, 343 US 306; Matter of

      Malpica-Orsini, 36 NY2d 568; Montgomery v Daniels, 38 NY2d 41; Alevy v Downstate Med. Center of State of N. Y, 39 NY2d 326; Matter of Taylor v Sise, 33 NY2d 357; Nebbia v New York, 291 US 502.) IV. Appellant, Town of Greece, lacks standing to sue because its property rights are not directly or specifically affected. (Wein v City of New York, 47 AD2d 367, 36 NY2d 610; Matter of Haber v Board of Estimate of City of N. Y, 33 AD2d 571; Brechner v Incorporated Vil. of Lake Success, 25 Misc 2d 920, 14 AD2d 567; Marcus v Village of Mamaroneck, 283 NY 325; Berkey v Downing, 68 Misc 2d 595, 39 AD2d 1008.)
   OPINION OF THE COURT

Gabrielli, J.

Plaintiffs appeal from an order of the Appellate Division which modified an order of Special Term whose order denied defendants’ motion to dismiss the complaint and also denied plaintiffs’ motion for summary judgment. The Appellate Division modified by granting respondents’ motion for summary judgment and dismissed appellants’ complaint. We affirm on the grounds that the challenged proceedings and steps taken by the county constitute a valid exercise of the governmental authority granted the county by section 226-b of the County Law and do not constitute a violation of the equal protection of the laws guaranteed by section 11 of article I of the New York State Constitution, as well as the Fourteenth Amendment to the United States Constitution.

Appellants commenced this action to challenge respondents’ use of county-wide real property tax revenues to build and operate a sanitary landfill for the exclusive use of the residents of the northeast quadrant of the County of Monroe. Appellants’ complaint alleges three causes of action: the first two, asserted on behalf of appellant Riley and other taxpayers similarly situated pursuant to section 51 of the General Municipal Law, allege that the use of county funds in such a manner and for such a purpose constitutes improper and illegal waste of public funds. The third cause of action, asserted solely on behalf of appellant Town of Greece, alleges that respondents’ use of county funds to support a limited access landfill, while refusing to use county funds to finánce the operations of its own town landfill, is a denial of the equal protection of the law.

Summary judgment was properly granted the respondents with respect to all three causes of action. We hold that the respondents’ actions were authorized by section 226-b of the County Law, and are thus not subject to attack via section 51 of the General Municipal Law (cf. Stahl Soap Corp. v City of New York, 5 NY2d 200). Prior to the enactment of section 226-b, the construction and financing of sanitary landfills by counties was permitted only if the project complied with the requirements of article 5-A of the County Law, authorizing the creation and establishment of special districts. A facility authorized under article 5-A could only be funded by the imposition of a special tax on the area which was in fact served by the facility. Under such a provision, the use of general county revenues to finance a limited access landfill would not have been authorized.

In .1970, however, the Legislature enacted section 226-b of the County Law, which authorizes a county to "appropriate and expend such sums as it may deem proper to provide for the collection and disposition of solid wastes in such county”. This section, which was a legislative response to the growing problem of solid waste disposal, does not contain, nor is it confined by, the strictures, restrictions, and limitations imposed upon a project authorized only by article 5-A. Absent these limitations, there is no requirement that the county establish the special districts envisioned by article 5-A, and, of course, there is nothing to prevent a county from exercising its police powers to attack the problem of waste disposal, a problem which certainly affects the health and welfare of its citizens, through county-wide financing of solid waste disposal facilities. Indeed, section 226-b was specifically intended to "provide for the collection and disposition of solid wastes as a county function” (Governor’s Memorandum, McKinney’s Session Laws of NY, 1970, p 3123).

Appellants would have us read into section 226-b a proviso that it only authorizes the financing and construction of county-wide facilities. No such limitation is to be found in the language of the statute, and we may not create such a restriction. Had the Legislature wished to impose such a limitation, or to subject section 226-b to article 5-A, it could easily have done so. It has instead chosen not to do so, and this court will not usurp that responsibility and obligation which reposes solely with the Legislature.

The third cause of action, founded on the town’s equal protection arguments, can be easily disposed of. It should first be noted that this challenge goes to the legislative activities of the Monroe County Legislature, and that legislative actions carry with them a strong presumption of validity (see, e.g., Matter of Malpica-Orsini, 36 NY2d 568, 570). Since neither a fundamental right nor a suspect classification is involved herein, a strict scrutiny test is not applicable. Thus, since appellants have not produced any cogent reason for applying such a test or, as advanced by appellants, the middle tier scrutiny we developed in Alevy v Downstate Med. Center of State of N. Y. (39 NY2d 326), the traditional rational basis test is appropriate. Applying that standard, it is evident that respondents’ activities do not violate the equal protection guarantee. The county has indicated in an unopposed affidavit that it is developing a county-wide plan for waste disposal. Since it faced a near crisis situation in the northeast sector of the county, it determined to take "emergency” action, and constructed a limited capacity, limited access landfill in that part of the county. It appears that it is now planning to construct similar facilities in the rest of the county. To require respondents not to construct any facilities until it can construct them all, would fly in the face of reason. Thus, summary judgment was properly granted with respect to the third cause of action.

In view of our holding, we do not reach the respondents’ challenge to the town’s standing to sue. The order appealed from should be affirmed.

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

Order affirmed, with costs.

      . Section 226-b of the County Law provides as follows:
      "1. The legislative body of any county may appropriate and expend such sums as it may deem proper to provide for the collection and disposition of solid wastes in such county and for that purpose may acquire, construct, operate and maintain solid waste disposal sites or plants, acquire the necessary lands therefor, and purchase, operate and maintain all necessary appliances appurtenant thereto, including such vehicles as may be required for such purposes. In selecting a location for any solid waste disposal site, plant or facility the county legislative body shall take into consideration the present and any proposed land use character of the area of any proposed location and the zoning requlations, if any, applicable to such area.
      "2. The legislative body of any county may, by resolution, establish schedules of rates or fees to be charged for any solid waste collection and disposal facilities or services provided pursuant to this section, which rates or fees may be collected and unpaid rates and fees enforced and collected in the same manner as provided in section two hundred sixty-six of this chapter.
      "3. The term 'solid waste’ shall mean all putrescible and nonputrescible solid wastes, including garbage, rubbish, ashes, incinerator residue, street cleanings, dead animals, demolition and construction debris, automotive bodies, offal and solid commercial and industrial wastes.
      "4. A county acting within its boundaries pursuant to this section shall be deemed to be acting in its governmental capacity. Nothing herein contained shall prevent a county from entering into a municipal cooperation agreement pursuant to article five-G of the general municipal law.”

      . It should be noted, of course, that the town does not challenge the constitutionality of any State statute or action, but merely the manner in which the county applies the statute to a claimed "preferred” segment of the county, using general county funds. In such circumstance the town is not confounded by the general rule that, absent certain exceptional situtations, a subdivision of the State may not challenge State activities upon constitutional grounds (cf. Town of Black Brook v State of New York, 41 NY2d 486, 488; Matter of Jeter v Ellenville Cent. School Disk, 41 NY2d 283, 287; Black Riv. Regulating Disk v Adirondack League Club, 307 NY 475, 487-489, app dsmd, 351 US 922).


author: Chief Judge Breitel.

text:
    In the Matter of the State Tax Commission, Respondent, v Bernard Shor, Judgment Debtor, and Chase Manhattan Bank (National Association), Respondent. Chase Manhattan Bank (National Association), Respondent, v Finance Administration of the City of New York et al., Respondents, and Fidelity National Bank of Pa., Appellant.
    Argued October 6, 1977;
    decided November 21, 1977

      POINTS OF COUNSEL

      William J. Allingham and Jerry J. Strochlic for inter-pleaded appellant.
    I. Fidelity obtained a perfected lien by docketing its judgment. (Matter of Lacaille [Feldman], 44 Misc 2d 370; Henderson v Tomb, 169 Misc 737; United Housing Foundation v Forman, 421 US 837; Grenader v Spitz, 537 F2d 612.) II. Fidelity’s lien is prior to the lien of any other claimant. (Matter of Lacaille [Feldman], 44 Misc 2d 370.) III. Respondents have taken inconsistent positions regarding the major issue in this proceeding. IV. The arguments presented by the amicus curiae are not relevant or persuasive.

      Louis J. Lefkowitz, Attorney-General (Gerard Hurwitz, Samuel A. Hirshowitz and Robert S. Hammer of counsel), for State Tax Commission, respondent; Kenneth A. Perko, Jr., Edward J. Reilly and Peter A. Copeland for Chase Manhattan Bank (National Association), respondent; and Frank E. Karelsen, III, and Ernest L. Bial for 480 Park Avenue Corp., respondent.
    I. A co-operative apartment interest is an interest in personalty for purposes of determining the perfection and priority of creditors’ liens thereon. (Susskind v 1136 Tenants Corp., 43 Misc 2d 588; Silverman v Alcoa Plaza Assoc., 37 AD2d 166; Matter of State Tax Comm, v Shor, 84 Misc 2d 161; Stockton v Lucas, 482 F2d 979; Matter of Miller, 205 Misc 770; Matter of Schlesinger, 22 Misc 2d 810; First Nat. Bank of St. Johnsville v Jones, 37 Misc 68; Seligman v Friedlander, 199 NY 373; Betz v Horr, 276 NY 83.) II. The confusing Lacaille decision, overruled by the court below, is unsound and, in any event, distinguishable. (Silverman v Alcoa Plaza Assoc., 37 AD2d 166; Stockton v Lucas, 482 F2d 979; Matter of Miller, 205 Misc 770; Matter of Schlesinger, 22 Misc 2d 810; Susskind v 1136 Tenants Corp., 43 Misc 2d 588; RKO-Keith-Orpheum Theatres v City of New York, 308 NY 493.) III. The court below was correct in holding that Fidelity’s claim must be subordinated to the possessory lien of Chase, the contractual lien of 480 Park Avenue Corp., and the levy and attachment of the State Tax Commission. (McCoy v American Express Co., 253 NY 477.) IV. Fidelity has no claim to the proceeds of the stock and the lease because it failed to enforce its judgment in the manner prescribed by CPLR 5232. (Knapp v McFarland, 462 F2d 935; United States v Pearson, 258 F Supp 686; Matter of Robbins, 74 Misc 2d 793.)
   OPINION OF THE COURT

Chief Judge Breitel.

This is a proceeding to enforce a money judgment, under CPLR article 52 on behalf of three creditors and lienors of the debtor Shor. They sought an order for the distribution of proceeds from the sale of Shor’s interest in his co-operative apartment. Fidelity National Bank, a judgment creditor of Shor interpleaded as a respondent, opposed the motion, asserting a prior lien on the proceeds. Special Term granted the motion, and a unanimous Appellate Division affirmed. Fidelity appeals.

The issue is whether the debtor’s interest in his co-operative apartment, that is, a stock certificate in the co-operative corporation and a "proprietary” leasehold granted by the corporation, is a "chattel real”, and hence, real property under CPLR 5203, thereby entitling a judgment creditor to a lien on the property merely upon docketing his judgment.

The order of the Appellate Division should be affirmed.

The ownership interest of a tenant-shareholder in a co-operative apartment is sui generis. It reflects only an ownership of a proprietary lease, and therefore arguably an interest in a chattel real, conditional however upon his shareholder interest in the co-operative corporation, an interest always treated as personal property. The leasehold and the shareholding are inseparable. For some special purposes, the real property aspect may predominate (see Grenader v Spitz, 537 F2d 612, 617-620, cert den 429 US 1009; cf. United Housing Foundation v Forman, 421 US 837, esp 854-860, reh den 423 US 884). But, where priorities of judgment creditors are involved, the stock certificate and lease involved in the typical co-operative apartment transaction fit better, legally and pragmatically, although with imperfect linguistic formulation, into the statutory framework governing personal property. Since a co-operative apartment leasehold, inseparable from co-operative shares, is not a chattel real for purposes of CPLR 5203, Fidelity did not obtain a lien merely upon docketing its judgment.

In 1951, Shor purchased 1,400 shares in 480 Park Avenue Corp., a co-operative apartment corporation. He received a stock certificate and a proprietary lease on a duplex apartment. The lease provided the lessor with a "first lien” on Shor’s shares of stock for all monetary obligations arising under the lease. Eventually, on February 23, 1973, Shor was evicted for nonpayment of maintenance charges, dating from 1971, and 480 Park Avenue Corp. claims a first lien of $63,908.22 for back maintenance, with interest, expenses, and attorneys’ fees.

Well before Shor’s eviction, in July, 1967, Shor, as guarantor of a loan made by Chase to a corporate borrower, had granted Chase "a security interest in [and] a general lien upon * * * all money, instruments, securities, documents, chattel paper * * * and any other property, rights and interests of the undersigned, which at any time shall come into the possession or custody or under the control of the Bank.” Chase had previously obtained possession of Shor’s stock certificate and proprietary lease as collateral. Following various defaults, Chase, on April 28, 1972, obtained a judgment against Shor for $44,222.67. Based on the judgment with added interest and expenses, Chase asserts a first lien of $67,800.17 plus attorneys’ fees in this proceeding.

On April 9, 1971, the State Tax Commission filed its first tax warrant against Shor. The commission levied execution on Chase on December 22, 1971, restraining Chase from making any transfer of the collateral. A similar levy was made on 480 Park Avenue Corp. on December 15, 1972. The Tax Commission’s lien is for an amount greater than the total of the proceeds from the eventual sale of the apartment.

On August 9, 1973, on motion of Chase, and upon stipulation among Chase, the Tax Commission, and 480 Park Avenue Corp., Special Term authorized the sale of the collateral. All other creditors of Shor consented to the sale reserving any liens and priorities they might have in the proceeds. Appellant Fidelity insisted on payment of $5,000 in return for its consent. On April 24, 1974, the sale realized $141,000. Chase now holds that sum in escrow at interest pending the outcome of this proceeding.

Not in dispute are the priorities among Chase, the Tax Commission, and 480 Park Avenue Corp. Those three subject to court approval, stipulated, on July 24, 1974, to divide the sale proceeds thus: $56,000 to 480 Park Avenue Corp., $64,000 to Chase, and the balance, plus accrued interest, to the Tax Commission. Then, on January 9, 1975, Chase interpleaded other creditors of Shor, seeking to distribute the fund according to the July 24 stipulation, and to be discharged from liability to the interpleaded respondents. All of the inter-pleaded respondents, save Fidelity, defaulted.

Fidelity had obtained and docketed a judgment against Shor, for $152,589, on February 6, 1970, before Chase obtained any judgment against Shor, before Shor fell behind in his payments to 480 Park Avenue Corp., and before the State Tax Commission filed its warrants. Fidelity, however, never executed on the property. Although $40,000 of Fidelity’s judgment was paid, the remainder, plus interest, exceeds the fund in escrow. Fidelity’s contention is simple: Shor’s interest in his co-operative is a chattel real, and hence treatable as real property (CPLR 105, subd [r]). Therefore, docketing of the 1970 judgment gave Fidelity a lien on the property (CPLR 5203, subd [a]), and hence priority over all other creditors, none of whom, Fidelity asserts, obtained liens until after 1970.

The growth of co-operative ownership of apartment buildings, throughout the Nation, but especially in New York City, has created legal problems not resolved by uncritical resort either to the rubrics governing real property or those governing personal property (see Silverman v Alcoa Plaza Assoc., 37 AD2d 166, 173 [Steuer, J., dissenting]). The co-operative corporation owns the land and the building. Shares in the corporation are sold to each apartment "owner”, who receives a stock certificate, not a deed to real property. The shares entitle the shareholder to a long-term apartment "proprietary” lease. (See 4B Powell, Real Property [Rohan-rev ed], par 633.4.) One has, therefore, a mixed concept and terminology, superficially resembling the traditional rental apartment lease, except, for example, that the lessee pays monthly maintenance charges and is subject to assessments instead of rent. For some purposes it is a lease; for others it is a compact between co-operative corporation and co-operative tenant. In any case the rights of the tenant are initiated by the capital investment made in the shares of the co-operative corporation. (On the paradoxes with respect to co-operative apartment buildings and the desirability of legislative clarification see 4B Powell, Real Property, pars 633.51-633.52.)

By viewing the shares of stock as the dominant aspect of the co-operative transaction, as respondents do, one could easily conclude linguistically that the co-operative "owners” hold only personal property, little different from the shareholders in a commercial real estate corporation. By focusing instead on the proprietary lease, as does appellant Fidelity, one could equally well conclude linguistically that the interest of the cooperative "owner” is real property, or at least a chattel real, which is treated as real property under the applicable CPLR provisions. Both approaches are overly facile. Neither the stock certificate nor the lease, inseparably joined, can appropriately be viewed or valued in isolation from the other. Nor may a dynamic jurisprudence ignore the manner in which economic affairs are conducted or the perception that the members of society have in conducting their affairs (see Cardozo, Nature of the Judicial Process, pp 60-64).

CPLR 5203, governing priorities and liens upon real property, provides, in part: "No transfer of an interest of the judgment debtor in real property, against which property a money judgment may be enforced,' is effective against the judgment creditor * * * from the time of the docketing of the judgment with the clerk of the county in which the property is located”. CPLR 105 (subd [r]) provides that, for purposes of the CPLR, real property includes chattels real. Thus, if Shor’s interest in his co-operative apartment were a chattel real, Fidelity would have priority over all creditors with liens created after February 6, 1970, the date its judgment was docketed in New York County.

By contrast, CPLR 5202 and 5234, governing rights and priorities of judgment creditors in personal property, require delivery of execution to the Sheriff before a creditor may obtain priority in the property. Since Fidelity has never delivered an execution, if the lease and stock certificate are treated as personal property, Fidelity’s interest must be subordinated to those of the other creditors.

Persuasive in this case are the 1971 amendments to the Banking Law which indicate strongly that priorities in the stock certificate and proprietary lease of a co-operative apartment corporation are to be treated under principles governing personal property (Banking Law, § 235, subd 8-a; § 380, subd 2-a). Both sections, dealing with permissible investments for various financial institutions, permit loans to finance purchase of ownership interests in co-operative apartments, provided the investment "is secured within ninety days from the making of the loan by an assignment or transfer of the stock or other evidence of an ownership interest of the borrower and a proprietary lease”. (See, also, Banking Law, § 103, subd 5.) No recording is required, as it would be in the case of a mortgage on real property (see, e.g., Banking Law, § 235, subd 8, par [1]; see, also, 4B Powell, Real Property [Rohan-rev ed], par 633.51 [3]).

These provisions indicate a legislative intention that lenders in possession of the relevant documents of title be secure from claims of subsequent creditors without any filing or recording of the security interest. Thus, a possessory security interest in co-operative apartment stock and lease would be much like a possessory security interest in ordinary chattel paper, which requires no filing for perfection (see Uniform Commercial Code, § 9-305). By contrast, if the "ownership” interest in a cooperative apartment were to be treated as real property, mere possession without recording would subordinate the lender’s security interest to claims of other classes of creditors (see Real Property Law, § 291; Lien Law, § 13). Such a result could not have been intended by the Legislature seeking to protect the interests of banking depositors.

The only case on point is Matter of Lacaille (Feldman) (44 Misc 2d 370), decided in 1964, seven years before the Banking Law provisions previously discussed were enacted. Other cases cited by the parties deal with the status of the stock certificate and lease in a co-operative apartment for purposes other than priority of liens (e.g., United Housing Foundation v Forman, 421 US 837, reh den 423 US 884, supra; and Grenader v Spitz, 537 F2d 612, 617-620, cert den 429 US 1009, supra, involving application of the Federal securities acts and treating co-operatives for that purpose as realty; Silverman v Alcoa Plaza Assoc., 37 AD2d 166, 172, supra, involving forfeiture of a deposit on purchase of a co-operative and treating co-operatives as personalty). Different policy reasons underlie those decisions, and those reasons do not necessarily support or controvert their applicability to the problems at hand.

In Lacaille, Mr. Justice Matthew M. Levy, in a thoughtful opinion, concluded that a debtor’s interest in his co-operative apartment was a chattel real, and hence governed by the statute on priorities in real property (44 Misc 2d, pp 384-385). In that case, however, the judgment creditor not only docketed her judgment, but also levied execution on the debtor and the co-operative corporation, all within three weeks of recovering judgment (id., p 373). On the reasoning applied by Mr. Justice Levy, the priority between judgment creditor and co-operative corporation would have been the same had the property been treated as personalty rather than a chattel real. And, but for a quirk in the Tax Law at the time of the transactions in the Lacaille case, a quirk caused by a drafting error and subsequently corrected, the court would not have had to make the categorization it did (see id., p 384).

Most important, in the years since the Lacaille decision, there has been an enormous expansion in co-operative ownership of apartment buildings. In addition, the condominium method of apartment ownership, new in New York at the time of the Lacaille decision, has become increasingly popular. Presented with the alternative of the condominium, which provides apartment dwellers with a kind of outright ownership of their apartments, many buildings have remained cooperatives, and kept the less direct form of apartment "ownership”. (See, generally, Symposium on the Law of Condominiums, 48 St John’s L Rev 677.) This conscious choice is not without jurisprudential significance in evaluating the nature of a co-operative "owner’s” interests.

Lastly, but cogent to the point of controlling, short of violation of public policy or positive law, co-operative tenants, co-operative corporations, and third parties dealing with them do not now, if they ever did, treat co-operative tenancies as chattels real. Indeed, the legislative response in the 1971 amendments to the Banking Law confirm this perception of the nature of the relationship in co-operative apartments and the quality of the property interest involved. The common-law process does not drag unwillingly the people it serves into a rigidly fenced corral, kicking, but reflects the fair conduct and expectations of fair, reasonable persons (see Gray, Nature and Sources of the Law, p 282).

Thus, changes both in the law, and in the banking and real estate fields, have caught up with and passed the Lacaille decision. No longer do most of the underpinnings for Mr. Justice Levy’s then persuasive opinion exist. Instead, intervening developments point towards a different result. Those developments should not and cannot be ignored.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

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

Order affirmed.