text:
    In the Matter of the Estate of Bernard P. Birnbaum, Deceased, Respondent, v Yankee Whaler, Inc., Appellant.
    Submitted June 5, 1980;
    decided June 12, 1980
   Motion for a stay granted on the conditions and to the extent set forth in the order to show cause dated June 2, 1980, signed by the Honorable Hugh R. Jones, and on the further condition that appellant post a $10,000 bond. Case set down for argument during the October, 1980 session of this court, appellant’s papers on appeal to be served and filed on or before July 14, 1980 and respondent’s on or before August 15, 1980.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Arbitration between Theodore Freedman et al., Appellants, and Stanley Padover, Respondent. Robert Menaker, Appellant, v Stanley Padover, Respondent, and Alsted Automotive Warehouse, Inc., Appellant. In the Matter of the Arbitration between Robert Menaker, Appellant, and Stanley Padover, Respondent.
    Submitted June 2, 1980;
    decided June 12, 1980
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the judgments denying applications to stay arbitration, denied. Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed orders granting a motion to stay an action and denying a motion to strike an answer, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    Norman Goodman, as County Clerk of New York County, Respondent, v Joan Liebovitz, Appellant.
    Decided June 12, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not an aggrieved party (see CPLR 5511).


text:
    In the Matter of Quotron Systems, Inc., Respondent, v Ivan E. Irizarry, as Finance Administrator of the City of New York, et al., Appellants.
    Submitted May 5, 1980;
    decided June 12, 1980
   Motion to amend remittitur denied. No question as to the right of plaintiff to postjudgment interest was considered by this court or affected by its remittitur (see CPLR 5003; Real Property Tax Law, § 726, subd 1, par [a]; subd 2; see, also, Matter of Brodsky v Murphy, 25 NY2d 518, 522, 523). [See 48 NY2d 795.]


text:
    Gilbert K. Gottlieb, Respondent, v Trumid Construction Co., Inc., et al., Appellants.
    Argued May 29, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Irving Anolik for appellants.

      Charles B. McGroddy III for plaintiff.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (72 AD2d 594; see, also, General Obligations Law, § 5-521, subd 1).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Myron Fass, Respondent, v Tax Commission of the State of New York, Appellant.
    Argued May 27, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow and Shirley Adelson Siegel of counsel), for appellant.

      Eli Uncyk and Marc L. Zoldessy for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (68 AD2d 977).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of the Claim of Betty Girard, Appellant, v St. Joseph Mineral Corp., Respondent. Workers’ Compensation Board, Respondent.
    Argued May 28, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Michael P. Oot for appellant.

      George R. Wolff for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (69 AD2d 968).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Barbara Allen et al., Respondents, v Canadian General Electric Company Limited, Appellant.
    Argued May 29, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Richard M. Gershon for appellant.

      Gary J. O’Connor for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs, for reasons stated in the opinion of Mr. Justice J. Clarence Herlihy at the Appellate Division, insofar as that opinion relates to the significance and effect of CPLR 302 (subd [a], par 3, cl [i]). We are not required to pass upon and thus do not address the significance and effect of CPLR 302 (subd [a], par 3, cl [ii]) (cf. World-Wide Volkswagen Corp. v Woodson, 444 US 286).

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

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.


text:
    The People of the State of New York, Respondent, v David Dickerson, Appellant.
    Argued May 28, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Judith Preble and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (David H. Fromm and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

That court affirmed defendant’s conviction agreeing with the suppression court that the complainant’s pretrial corporeal identification of defendant was not impermissibly suggestive and that there were independent bases for defendant’s in-court identification by both the complainant and the police officer. Each of these affirmed determinations is beyond the scope of our review unless it were to be concluded that it was erroneous as a matter of law. There was, however, no error of law in any of these determinations.

We have examined defendant’s associated contentions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    Myron M. Hunt et al., Doing Business as Mymar Associates-Georgia, Respondents, v Bankers and Shippers Insurance Company of New York, Appellant.
    Argued May 29, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      David M. Brown for appellant.

      David C. Lamb and Peter S. Gilfillan for respondents.
   OPINION OF THE COURT

Memorandum.

We are constrained to affirm the order of the Appellate Division, with costs.

It is appellant’s contention that no consequential damages should have been awarded. In returning substantial verdicts for plaintiff it may be that the jury considered legally impermissible elements of such damages when it determined the total amount of damages. In the procedural posture in which the case reaches us it is impossible to determine whether the jury did in fact consider any such elements, and in any event we may not look behind the verdicts of the triers of the facts. The jury returned lump sum general verdicts only on the four causes of action alleged in the complaint; no request was made for special verdicts or answers to written interrogatories (CPLR 4111). Accordingly, any analysis of the arithmetic computations on which the lump sum figures may have been based can be speculative only, however reasonably plausible such analysis may be made to appear. That, however, is a process in which we may not indulge.

Our appellate jurisdiction is ordinarily limited to consideration of issues of law; we have no authority in this instance to review questions of fact. Appellant has failed to preserve for our review the law issues which it asserts underlie the factual determinations of which it now complains. The instructions given the jury in this somewhat complicated commercial case are not a model of either clarity or completeness. However, other than restating requests to charge that had previously been submitted to the court (which requests themselves were erroneous in significant detail), defendant took no sufficient exception to the charge as given and did not otherwise assist the Trial Judge in clarifying or distilling the legal issues as to which it now seeks our review. In consequence of its failure to address the charge with particularity, appellant has failed to preserve legal issues which we may consider.

We have examined appellant’s other contentions with respect to evidentiary rulings by the trial court and find no reversible error. Nor was it error in the circumstances of this case to apply the New York rule of law which allows prejudgment interest.

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

Order affirmed, with costs, in a memorandum.


text:
    Ann M. Carratu, Respondent, v Rudolph M. Carratu, Appellant.
    Argued May 30, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Abraham Hecht for appellant.

      Roy J. Girasa for respondent.
   OPINION OF THE COURT

Memorandum.

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

We cannot conclude, as a matter of law, that the evidence in this record was insufficient to support the determination of the Appellate Division that respondent wife was entitled to a divorce on the ground of cruel and inhuman treatment (Domestic Relations Law, § 170, subd [1]). The husband’s assertion that the dismissal of the wife’s prior complaint for a divorce on the same ground was preclusive or operated to bar the consideration in this proceeding of evidence submitted on the prior trial must be rejected. The prior determination would have barred a claim based solely on the same evidence; it did not, however, render that evidence inadmissible in the present proceeding or preclude relief in this proceeding based on that evidence supplemented by the additional proof of postfirst trial conduct of the husband.

Respondent wife’s contention that the order of the Appellate Division should be modified to increase the allowance of alimony and counsel fees cannot be considered inasmuch as she took no appeal from the order of the Appellate Division..

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York ex rel. Leo Murray, Appellant, v New York State Board of Parole et al., Respondents.
    Argued June 2, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      John M. Lockwood for appellant.

      Robert Abrams, Attorney-General (Charles S. Kleinberg and Gerald J. Ryan of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

On oral argument, relator limited his submission to the contention that in adjudging him in violation of parole the State Board of Parole employed a constitutionally impermissible standard of proof, to wit, a preponderance of the evidence only (9 NYCRR 8005.19 [e]). Inasmuch as this issue was not raised in the Supreme Court or at the Appellate Division it may not be raised in our court (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 169, pp 641-643).

In his brief relator also contends, likewise for the first time, that the determination of the Board of Parole was not supported by substantial evidence, a lesser standard of proof than preponderance of the evidence. Even if it be assumed that relator’s failure to raise this issue below does not preclude its consideration in our court, we conclude that there was substantial evidence in this record to sustain the determination of the Board of Parole. (Relator has abandoned the ground on which Supreme Court granted his petition but which was rejected by the Appellate Division — that dismissal of the criminal charges pursuant to CPL 170.55 precluded revocation of his parole based on the same underlying transaction.)

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of June R. German, Appellant, v Richard J. Bartlett, as Administrative Judge of the State of New York, Respondent.
    Argued May 27, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Kathleen Peratis for appellant.

      Patricia P. Satterfield, Stephen G. Crane and Michael Colodner for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (70 AD2d 715).

Concur: Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer. Taking no part: Chief Judge Cooke.


text:
    Park of Edgewater, Inc., Respondent, v Daniel W. Joy, as Commissioner of the City of New York Housing Preservation and Development Administration, Office of Rent and Housing Maintenance, Rent Control Division, Appellant.
    Argued March 17, 1980; reargued April 29, 1980;
    decided June 5, 1980

      APPEARANCES OF COUNSEL

      Alan W. Ginsberg and Harry Michelson for appellant.

      Edward J. Freeman and Robert G. O’Donnell for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the Special Term judgment reinstated.

This article 78 proceeding arises out of the filing by Park of Edgewater, Inc., of a report of decontrol. In question was the lease to Sheldon T. Dodin and his wife of a parcel of land (77-D Edgewater Park) on which they built a house. On August 5, 1975 they gave title to the house to their son Robert for the sum of one dollar.

Following petitioner’s filing of a report of decontrol, the district director determined that the lease did not meet the requirement for vacancy decontrol under section 2 (subd f, par [17]) of the New York City Rent and Eviction Regulations. He, therefore, vacated the report and fixed the land rent at $34.64 per month. Petitioner’s protest to the Commissioner of Housing having resulted in a denial, petitioner began this article 78 proceeding. Special Term dismissed the proceeding, concluding that the Dodins’ ground lease was a housing accommodation subject to control.

The Appellate Division reversed holding that, the Legislature having included ground rentals in "housing accommodations” under the Rent Control Law and then used the same phrase in the vacancy decontrol law, such rentals were under the latter law decontrolled on transfer. While the commissioner’s appeal to our court was pending, chapter 69 of the Laws of 1980 became law. That statute in sections 2 and 3 amended the Rent Control Law and the related Administrative Code provision to make clear that transfer to a member of the leaseholder’s family on or after July 1, 1971 did not decontrol the lease. The act was made effective immediately but provided that sections 2 and 3 be deemed in full force and effect on and after July 1, 1971.

On reargument of the appeal after the enactment of chapter 69, the parties eschewed any contention that sections 2 and 3, if retroactively applied, are unconstitutional, and urged that the question whether land leases were subject to decontrol under prior law be decided, because chapter 69 leaves open the question whether transfer of a land lease to someone other than an immediate family member results in decontrol.

While that may well be true the instant proceeding arises out of and concerns only a transfer to an immediate family member within the meaning of chapter 69. The appeal is to be decided in accordance with the law at the time of decision (Matter of Boardwalk & Seashore Corp. v Murdock, 286 NY 494). Since sections 2 and 3 are expressly made retroactive to July 1, 1971 and the transfer in issue occurred August 5, 1975, the new law has made it clear that that transfer had no bearing upon whether the property involved in this proceeding is controlled.

Any question concerning constitutionality having been waived by the parties and there being but one parcel involved in this proceeding, we are not confronted by an issue of grave public policy that might otherwise require us to decide the constitutional question even though not briefed or argued by the parties (Massachusetts Nat. Bank v Shinn, 163 NY 360; see 11 Carmody-Wait 2d, NY Prac, § 71:117).

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

Order reversed, with costs, and the judgment of Supreme Court, New York County, reinstated in a memorandum.


text:
    The People of the State of New York, Respondent, v David Bryant, Appellant.
    Argued June 2, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Lewis R. Friedman, Richard M. Asche, Herman Kaufman, Jack T. Litman, Russell M. Gioiella and Sharon L. Norton for appellant.

      Mario Merola, District Attorney (David H. Fromm and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Both of the courts below found as a matter of fact that defendant voluntarily agreed to accompany the police to the station house and to submit to police interrogation. Inasmuch as this affirmed finding that defendant’s confession was not the product of illegal detention is supported by the record, it is beyond the power of this court to review. (See, e.g., People v Morales, 42 NY2d 129, 138.) Nor can we conclude on the record before us that defendant’s confession was involuntarily obtained as a matter of law. (See, e.g., People v Casassa, 49 NY2d 668, 681.)

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

Order affirmed in a memorandum.


text:
    Ernest J. Michel & Co., Inc., Appellant, v Anabasis Trade, Inc., Respondent.
    Argued June 2, 1980;
    decided June 24, 1980
    APPEARANCES OF COUNSEL

      Michael C. Wimpfheimer and Henry Wimpfheimer for appellant.

      Donald L. Kreindler and Michael D. Blutrich for. respondent.

      Kurt J. Wolff and Daniel Wallen for American Textile Manufacturers Institute, Inc., amicus curiae.

      Cecil A. Citron and Michael Wexelbaum for Lawyers Association of the Textile Industry, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that appellant buyer, by its affirmative actions, agreed to submit all disputes arising out of the contracts in issue to arbitration. An agreement to arbitrate was manifested by appellant by signing the first confirmation of order form with admitted knowledge that an arbitration clause was contained therein and, thereafter, by receiving and retaining six additional confirmations of orders on the same contract form without objection except for a request for one change as to credit terms, which change was made by the respondent seller. (See Uniform Commercial Code, § 2-204, subd [1]; Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1.)

Matter of Marlene Inds. Corp. (Carnac Textiles) (45 NY2d 327) is clearly distinguishable. There, contradictory contract forms were exchanged between the parties; neither party had signed the other’s form and no evidence existed that the recipient of the contract containing the arbitration clause was aware of its presence or had agreed to arbitrate.

Chief Judge Cooke and Judges Jasen, Jones,. Wachtler, Fuchsberg and Meyer concur in memorandum; Judge Gabrielli concurs on constraint of Schubtex, Inc. v Allen Snyder, Inc. (49 NY2d 1).

Order affirmed.


text:
    Elwood Barringer, Individually and as Administrator of the Estate of Cornelia Barringer, Deceased, Appellant, v State Farm Mutual Automobile Insurance Company, Respondent.
    Submitted June 2, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Arthur L. Kagan for appellant.

      Grenville T. Keogh and Spencer V. Hinckley for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 984).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Martin Malagon, Appellant.
    Argued May 28, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Lawrence Stern for appellant.

      Robert M. Morgenthau, District Attorney (Bruce Allen and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the defendant’s conviction vacated, and the indictment dismissed.

The defendant was convicted of conspiracy in the first degree for allegedly conspiring with one Mostovoy to sell cocaine on five specified dates in 1975. The People submitted proof that Mostovoy sold the drug to an undercover officer at or near an apartment in Manhattan. The defendant was never present during any of these sales and, during these transactions, Mostovoy never mentioned the defendant as being involved in the illegal drug traffic. Mostovoy did, however, make frequent references to his supplier and these remarks were used circumstantially to identify the defendant as the supplier. In view of the fact that Mostovoy did not testify at trial, the People relied almost exclusively on hearsay to establish the defendant’s guilt. The primary question is whether Mostovoy’s statements concerning his supplier, as related by the police officers, were properly admitted in evidence under the conspiracy exception to the hearsay rule.

It is settled that a statement made by a conspirator during the course of, and in the furtherance of, a conspiracy may be admitted against a coconspirator to establish guilt of a conspiracy or a substantive offense (People v Salko, 47 NY2d 230, 237). The evidence however is not admissible unless the People have submitted proof, other than the hearsay statements, showing that a conspiracy existed at the time the statements were made (People v Salko, supra; People v Berkowitz, 50 NY2d 333). This preliminary showing is sufficient if the independent evidence establishes the conspiracy prima facie (People v Salko, supra, p 237). Here, however, the court instructed the jury during the opening statements that this preliminary showing required proof beyond a reasonable doubt, and later during the charge to the jury stated: "All statements, activities, and conduct of Mostovoy must not be considered by you against the defendant until you have found by independent evidence beyond a reasonable doubt that there was a conspiracy and that the defendant was a member of it.” The prosecutor did not object to these instructions and thus was bound to satisfy the heavier burden in this case (People v Bell, 48 NY2d 913).

The independent evidence viewed most favorably to the People, establishes that the defendant, employed as a manager of a restaurant located near the apartment where the drug sales occurred, was acquainted, apparently well acquainted, with Mostovoy; had access to his apartment and in conversations with Mostovoy was heard to use terms which might refer to one or two of the drug sales. These circumstances, although suspicious, were insufficient as a matter of law to prove "beyond a reasonable doubt” that the defendant was a member of a conspiracy involving these five drug transactions. Thus in this case the People failed to meet the burden which they accepted as a necessary predicate to admission of Mostovoy’s out-of-court statements implicating the defendant as his supplier.

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

Order reversed, etc.


text:
    In the Matter of Timothy Williams, Respondent, v Police Department of the City of New York et al., Appellants.
    Argued May 30, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (June A. Witterschein and Francis F. Caputo of counsel), for appellants.

      Bennett M. Epstein and Jacob R. Evseroff for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs.

Initially it should be noted that the Appellate Division, although it modified the penalty imposed by the police commissioner, nevertheless sustained the charge against the petitioner: failure to make entries in his memo book accounting for his patrol activities as required by the department’s patrol guide. On its face the penalty imposed — dismissal—might seem disproportionate to the gravity of the offense. However, the petitioner’s record with the police department reveals a long history of serious misconduct. At the time of the infraction with which this proceeding is concerned the petitioner was on disciplinary probation, for the fourth time, and was expressly warned that any violation of the patrol guide during the period of probation would lead to dismissal.

In determining the appropriate penalty, the commissioner was justified in examining the petitioner’s prior disciplinary record and, under these circumstances, it may not be said that the penalty imposed was so disproportionate to the offense as to shock one’s sense of fairness (see Matter of Pell v Board of Educ., 34 NY2d 222, 233).

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

Order reversed, with costs, and the determination of the police commissioner reinstated in a memorandum.


text:
    Aetna Casualty and Surety Company, Respondent, v Glenna J. Brice, as Administratrix of the Estate of Charles Maybee, Deceased, et al., Defendants, and Joseph S. Lauria, as Administrator of the Estate of Mark Lauria, Deceased, et al., Appellants.
    Argued May 27, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Leo J. Fallon for Joseph S. Lauria, as administrator of the estate of Mark Lauria, deceased, appellant.

      J. Edmund de Castro, Jr., and J. Scott Marshall for Clayton Eldridge, individually and as administrator of the estate of Norma F. Eldridge, appellant.

      Maynard C. Schaus for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (72 AD2d 927).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Butternut Enterprises, Inc., Appellant, v Travelers Indemnity Company of Rhode Island et al., Respondents.
    Argued May 27, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      William C. Zifchak for appellant.

      Thomas M. Laquercia, John M. Speyer and Florence D. Horowitz for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (67 AD2d 672).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Dennis Dackowski, Appellant.
    Submitted May 28, 1980;
    decided June 24, 1980
    APPEARANCES OF COUNSEL

      Joseph Panzer for appellant.

      Eugene Gold, District Attorney (Laurie S. Hershey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Convicted of burglary and assault, defendant argues that he was improperly prevented from introducing a written statement purportedly signed by the complaining witness, who spoke only Arabic, and witnessed by one Lalo, who spoke Arabic and broken English. The statement indicated that the complaining witness could not identify her attacker and was prepared by defendant’s attorney and obtained by defendant’s parents who gave the complainant $150 for medical expenses. The statement was in English and defendant contended that Lalo had explained to the complaining witness what was in it. The complaining witness conceded her signature, but Lalo denied she had signed as a witness.

CPL 60.35 would have permitted introduction of the statement by the defense to impeach Lalo, called as a defense witness, had it been made by her. Since it was not there was no error in excluding it. Nor was it improper to refuse to require Lalo to give a handwriting exemplar, for whether she signed the statement as a witness was a collateral issue, not relevant to any question in the case except Lalo’s credibility, for as hereafter noted, the statement itself was admissible apart from her testimony.

The complaining witness, called by the People, having conceded the genuineness of her signature, the statement was admissible for impeachment purposes as a prior inconsistent written statement (Fisch, New York Evidence [2d ed], § 478). Any problem concerning her understanding or lack of understanding of the content of the statement by reason of the difference in language related not to admissibility but to weight. It was, therefore, error to exclude the statement, but the error clearly was harmless (People v Crimmins, 36 NY2d 230). Defendant was seen by the building superintendent leaving the apartment in which the assault occurred while the complaining witness was still screaming, was chased by the superintendent and caught some 300 feet outside the building. Within three to five minutes after the assault he was identified by the complaining witness. The story defendant gave to the superintendent when apprehended was inconsistent with his testimony at trial. The contents of the statement signed by the complaining witness were, moreover, put before the court through the testimony of defendant’s mother, brought out on cross-examination by defendant’s attorney.

Finally, finding Chambers v Mississippi (410 US 284) and Green v Georgia (442 US 95) to be factually distinguishable from the instant case in light of the substantial question concerning reliability of the statement, we conclude that there was no due process violation in its exclusion.

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

Order affirmed in a memorandum.


text:
    In the Matter of the Claim of John W. Dineen, Respondent. Eagan Real Estate, Inc., Respondent. Philip Ross, as Industrial Commissioner, Appellant.
    Argued May 30, 1980;
    decided June 24, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Grace A. Brannigan and Paul S. Shemin of counsel), for appellant.

      David W. Larrison and Robert A. Small for Eagan Real Estate, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the decision of the Unemployment Insurance Appeal Board should be reinstated.

There was substantial evidence to sustain the finding of the referee, affirmed by the Unemployment Insurance Appeal Board, that Dineen was an employee rather than an independent contractor. There was evidence that it was a matter of choice with the individual salesman (rather than the employer) whether he be treated as an "employee” or an "independent contractor”, and that the substantial differences in treatment after the choice was made were in tax and profit sharing consequences rather than in the amenability of the salesman to the employer’s direction.

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

Order reversed, etc.


text:
    In the Matter of Suzanne Rieser, Respondent, v Robert L. Rieser, Appellant.
    Argued June 3, 1980;
    decided June 26, 1980
    APPEARANCES OF COUNSEL

      George Haber and Kenneth R. Wolfe for appellant.

      Suzanne Rieser, respondent pro se.

   OPINION OF THE COURT

Order affirmed, with costs. We find no error of law in the disposition at the Appellate Division.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Robert W. Newton et al., Appellants, v Peter D. Booras et al., Respondents.
    Submitted May 30, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Peter E. Bloom and Daniel J. Bloom for appellants.

      Milton M. Schussheim and Melvyn J. LeiHer for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 593).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Eugenia Urbanek, Plaintiff, v Edward Citrynell, Defendant and Third-Party Plaintiff-Appellant. Frank X. Kilgannon, Third-Party Plaintiff-Respondent.
    Argued June 4, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      E. Richard Rimmels, Jr., for third-party plaintiff-appellant.

      John F. Mulholland for third-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (70 AD2d 912).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Jacob Weinberg, Appellant, v New York City Employees’ Retirement System, Respondent.
    Argued June 3, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Morris Weissberg and Robert J. Krengel for appellant.

      Allen G. Schwartz, Corporation Counsel (Stephen J. Mc-Grath and Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 672).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Barry F. Jones, an Infant, by His Father and Natural Guardian, Michael J. Jones, et al., Respondents-Appellants, v Phillip A. Maphey, Sr., et al., Appellants-Respondents.
    Argued June 3, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Robert B. Shaad for respondents-appellants.

      Kim H. Martusewicz and Michael D. Saunders for appellants-respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and plaintiffs’ cross appeal should be dismissed.

CPLR 3216 (subd [a]) authorizes a court to dismiss a complaint "on the merits” when it. finds that a party has unreasonably neglected to prosecute his claim. Contrary to the view expressed by the Appellate Division in this case, there is no requirement that the dismissing court in all cases consider the evidentiary support for the claim before determining whether the dismissal should be "on the merits”, nor that the motion papers explicitly so request. As we stated in Headley v Noto (22 NY2d 1, 4): "It certainly should be within the power of a trial court to dispose of a case 'on the merits and with prejudice’ where it has been adequately demonstrated that a plaintiff unreasonably neglected to prosecute an action. It is well recognized that the power to control its calendar is a vital consideration in the administration of the courts”.

Under the facts presented in this case, there was no abuse of discretion in Special Term’s decision to specify in its order that the dismissal was "on the merits”, particularly in view of plaintiffs’ prolonged neglect of their case. Since the Appellate Division’s determination was based upon its erroneous assumption that Special Term’s actions were improper as a matter of law, its order vacating the default judgment and substituting therefor a second default judgment with the term "on the merits” deleted must be reversed. We add only that, in light of our resolution of this issue, we do not find it necessary to consider the propriety of utilizing the mechanism of a motion to vacate pursuant to CPLR 5015 as a means of requesting a substantive revision of the terms of an otherwise valid default judgment (cf. Herpe v Herpe, 225 NY 323; Horan v Town of Brookhaven, 29 AD2d 563).

Plaintiffs’ cross appeal from so much of the order of the Appellate Division as imposed costs upon their attorney as a condition to the relief granted by that court is dismissed on the ground that no appeal as of right lies from a modification made in the exercise of the Appellate Division’s discretionary power, absent a claim that the modification was unauthorized or constituted an abuse of discretion as a matter of law (Patron v Patron, 40 NY2d 582; see Cohen and Karger, Powers of the New York Court of Appeals, pp 605-606).

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

On defendants’ appeal: Order, insofar as appealed from, reversed, with costs, and the order and the judgment of Supreme Court, Jefferson County, reinstated.

On plaintiffs’ cross appeal: Cross appeal dismissed, without costs.


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    In the Matter of the Estate of Mallie Carper, Also Known as Amelia Carper, Deceased. Rose Price et al., Appellants; Louis J. Lefkowitz, as Attorney-General of the State of New York, Respondent.
    Argued June 4, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Wayne I. Ohl for appellants.

      Robert Abrams, Attorney-General (Thomas Fernandes, Shirley Adelson Siegel and Irwin M. Strum of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

The disputed paragraph in the decedent’s will evidenced a clear and unambiguous intention to bequeath the residue of her estate for charitable purposes, and thus the gift does not fail for indefiniteness (EPTL 8-1.1). That the testatrix indicated in her will a collateral intention that the money be used to establish "memorials” in the memory of her departed relations does not compel a contrary conclusion, since the overriding charitable intent of the testatrix is apparent from the language of the paragraph in which the bequest was made (see Matter of Rupprecht, 271 App Div 376, affd 297 NY 462; see, also, Sherman v Richmond Hose Co., 230 NY 462, 469). Nor is it significant that the paragraph containing the charitable bequest contemplated further oral directions from the testatrix, for, as the Appellate Division correctly noted, the intention of the testatrix to give additional instructions concerning the details of the memorials does not conflict with the expressed intention that the residue of the estate be distributed by the named beneficiaries to charitable institutions selected by them "in their sole discretion”. And, under our decisional law, the latter intention should be carried out, even if the testatrix’ unexpressed wishes regarding the character of the memorials cannot be effected (see, generally, Matter of Nurse, 35 NY2d 381; see, also, Matter of Fabbri, 2 NY2d 236).

Because we find the language of the disputed will provision clear and free from any ambiguity, we have no need to resort to the extrinsic evidence offered by the contestants to elucidate the intentions of the testatrix. Accordingly, we neither reach nor comment upon the conclusions of the courts below concerning the proper use of extrinsic evidence in will contests.

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

Order affirmed, etc.


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    In the Matter of Ronald Kulikowsky, Appellant, v Arthur Levitt, as Comptroller of the State of New York and Administrative Head of the New York State Policemen’s and Firemen’s Retirement System, et al., Respondents.
    Argued June 5, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Jeffrey G. Plant and Richard R. Rowley for appellant.

      Robert Abrams, Attorney-General (Diane De Furio Foody and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (70 AD2d 735).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


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    Joanne Frost, on Behalf of Her Unborn Child, Respondent, v Barbara Blum, as Commissioner of the New York State Department of Social Services, Appellant, and Muriel O’Connor, as Commissioner of the Sullivan County Department of Social Services, Respondent.
    Argued June 4, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Clifford A. Royael and Shirley Adelson Siegel of counsel), for appellant.

      David L. Posner for Joanne Frost, respondent.
   OPINION OF THE COURT

Memorandum.

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

It is conceded that from the fourth month of her medically, verified pregnancy petitioner was entitled to a grant under the Aid to Dependent Children program with respect to her unborn child notwithstanding that she herself was not otherwise eligible for public assistance (cf. Matter of Bates v Toia, 45 NY2d 460). We agree with the courts below that there was no authority under the regulations of the Department of Social Services then in effect (18 NYCRR 352.30) to base the amount of that grant on the pro rata share of the monthly grant for a two-person household prescribed by subdivision 3 of section 131-a of the Social Services Law.

We do not consider and thus intimate no views as to what might be the result under subsequent amendment of the regulation, which has no application to this case.

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

Order affirmed, with costs, in a memorandum.


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    Riva D. Sherman, Appellant, v New York State Teachers’ Retirement System et al., Respondents.
    Argued June 5, 1980;
    decided June 26, 1980
    APPEARANCES OF COUNSEL

      Joel Field for appellant.

      Robert Abrams, Attorney-General (Carl E. Stephan and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Section 512 (subd b, par 2) of the Education Law provides that a death benefit is payable upon the death of a member of the New York State Teachers’ Retirement System who dies prior to the effective date of retirement if "in service” at the time of death. Respondents interpreted the "in service” prerequisite as not met by a teacher who, following leave of absence from the school system without pay, had not yet resumed actual teaching duties.

Based on that interpretation of the statute, respondents denied petitioner’s application for death benefits with respect to her daughter who, after nearly 20 months of parental leave terminating on June 30, 1977, was re-engaged for the school year 1977-1978 and included in the salary schedule adopted by the board of education for that year, but died on August 2, 1977 before the opening of school in September. We cannot conclude that this determination was affected by an error of law or was arbitrary or capricious. Nothing in the statute compels the interpretation that because the teacher had returned to the school system and been restored to the yearly payroll she must be deemed to be "in service”.

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

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v William Jenkins, Appellant.
    Argued June 3, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Michael A. daifa and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Harold Kenneth King, Jr., and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

It was permissible to join the two robberies in a single indictment because the offenses were "the same or similar in law” (CPL 200.20, subd 2, par [c]). The defendant’s motion to sever was addressed to the trial court’s discretion (CPL 200.20, subd 3). On this record it cannot be said that the court abused its discretion as a matter of law in denying the defendant’s motion for a severance.

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

Order affirmed in a memorandum.


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    Mohawk-Schoharie Production Credit Association of Fultonville, Respondent, v Malcolm Wilber et al., Appellants.
    Argued June 5, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      E. Guy Roemer for Malcolm Wilber, appellant.

      Michael Cuevas and Nicholas J. Grasso for Janice Wilber, appellant.

      Kurt J. Wolff, Daniel Wallen and Andrew J. Zuckerman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 720).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


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    In the Matter of Maria T. Galanthay, Appellant, v New York State Teachers’ Retirement System, Respondent.
    Argued June 5, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Lou Lewis for appellant.

      Robert Abrams, Attorney-General (William J. Kogan and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Mr. Justice Con. G. Cholakis at Special Term.

Under section 525 of the Education Law the retirement board is mandated to correct any errors in the computation of benefit entitlement on the part of the members of the system. Thus, while the preliminary evaluation of petitioner’s pension rights may have indicated sufficient service credit to entitle her to a retirement benefit, the board, on receipt of additional information indicating insufficient service credit for a pension, was obligated to correct the error and seek repayment of the funds already received (Matter of Newcomb v New York State Teachers’ Retirement System, 43 AD2d 353, affd 36 NY2d 953).

The retirement system’s statutory responsibility, supported by broad public policy considerations, requires that it take all necessary steps to insure the financial integrity of the pension fund. That duty could not have been properly discharged without requiring the petitioner to serve the minimum period of time necessary to entitle her to a pension. For this reason the courts below were correct in their holding that the original erroneous calculations could not be the basis for an estoppel. "The doctrine of estoppel will not reach so far as to hold an individual eligible for vested retirement where by statute, he clearly does not qualify for such eligibility” (Mat ter of Boudreau v Levitt, 67 AD2d 1053, 1054, mot for lv to app den 47 NY2d 706).

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

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v Gerald Francis, Appellant.
    Argued June 6, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Harold M. Brown for appellant.

      Eugene Gold, District Attorney (Michael J. Halberstam of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The evidence before the jury consisting of the statement of the eyewitness, the medical examiner, as well as the defendant’s own statements, even though inconsistent in some measure, were, nevertheless, sufficient to prove the guilt of the defendant beyond a reasonable doubt, if viewed most favorable to the People as we are bound to do on this appeal (People v Lagana, 36 NY2d 71, 73, cert den 424 US 942).

We have examined the defendant’s other contentions and find them to be without merit.

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

Order affirmed in a memorandum.


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    In the Matter of Milmar Super Drugs Corp., Appellant, v Department of Taxation and Finance of the State of New York, Respondent.
    Argued May 30, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Saul Roth for appellant.

      Robert Abrams, Attorney-General (Wayne L. Benjamin and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 778; see, also, Harcel Liqs. v Evsam Parking, 48 NY2d 503).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


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    In the Matter of Ann Jaffe, as Executrix of Louis Jaffe, Deceased, Appellant, v Board of Education of the City of New York et al., Respondents. In the Matter of Phyllis Rubin, as Administratrix of the Estate of Isadore Rubin, Deceased, Appellant, v Board of Education of the City of New York et al., Respondents.
    Argued June 3, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Benjamin M. Zelman for appellants.

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 993).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


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    The People of the State of New York, Respondent, v Carlos Burgos, Appellant.
    Argued June 4, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Bernard P. Levy for appellant.

      Mario Merola, District Attorney (Robert J. Carlucci and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

It was error for the Trial Judge to refuse to advise the jury that defendant’s alibi witnesses had no duty to volunteer exculpatory information to law enforcement authorities (see People v Dawson, 50 NY2d 311, 322). Moreover, as Mr. Justice Fein, in his dissenting opinion at the Appellate Division, correctly indicated, it was proper for defendant’s counsel to have advised the witness to that effect. Thus, when counsel, following recognized practice in making his offer of proof, asked for the opportunity to establish that fact in order to rebut the insinuation that the witness’ failure to report to the authorities indicated that her testimony was recently fabricated, the court’s refusal constituted a further infringement of defendant’s right to a fair trial. Indeed, upon the representation made in counsel’s offer, it would have been best had the court stricken the entire line of questioning (People v Dawson, supra, p 322).

Under the circumstances in this case these errors were not harmless. Since the testimony of the prosecution and defense witnesses was diametrically opposite on the issue of the whereabouts of defendant at the time of the crime, it cannot be said that their credibility was not a decisive factor in the outcome of the case.

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

Order reversed, etc.


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    Benson Realty Corp. et al., Appellants, v Abraham Beame, as Mayor of the City of New York, et al., Respondents.
    Argued June 4, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Wynne B. Stern, Jr., for appellants.

      Arthur Kass, Harry Michelson and Esther Niderberg for Abraham Beame, as Mayor of the City of New York, and others, respondents.

      Robert Abrams, Attorney-General (Daniel M. Cohen and Shirley Adelson Siegel of counsel), for John G. Heimann, as Commissioner of the New York State Division of Housing and Community Renewal, respondent, and in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by substituting for its declaration and dismissal the declaration that the New York City Rent Control Law is constitutional, and, as so modified, the order should be affirmed.

While we agree that plaintiffs have not rebutted the presumption of constitutionality, the consequence of that failure is that defendants are entitled to a declaration of constitutionality (Lanza v Wagner, 11 NY2d 317, 334).

Plaintiffs attack the New York City Rent Control Law on the grounds that there is no longer an emergency after 36 years, that as applied it is confiscatory, and that in any event there has been such a failure of administration of the law as to mandate its being declared unconstitutional. The need for rent control has been re-examined legislatively at intervals of three years, the most recent such review being the March 27, 1980 Report of the New York State Temporary Commission on Rental Housing, which concluded that "There is a need for continuing a form of rent regulation in those jurisdictions in which housing accommodations are presently subject to rent control or rent stabilization.” Whether there is need for controls is a matter for legislative determination in the first instance. The presumption of a factual basis for that determination is not overcome by mere passage of time, nor have plaintiffs, whose affidavits concentrate on the effect of controls on property owners, presented evidence to demonstrate beyond a reasonable doubt that there is no factual basis.

On the question of unconstitutional taking it need only be noted that plaintiffs’ papers contain only generalized conclusions which, however persuasive in the forum of public opinion, do not establish that the property of any individual property owner has been "taken” or demonstrate, sufficiently to overcome the presumption of constitutionality, that rent control is the cause of what plaintiffs claim is the present plight of New York City landlords.

With respect to the claimed collapse in administration, we reject it without pausing to inquire whether or to what extent appellants might be able to demonstrate delays or breakdowns. We know of no authority, and appellants cite none, recognizing any proposition that proof of maladministration or nonadministration of a statute may serve as the predicate for a judicial declaration that the statute is unconstitutional. The role of the judiciary is to enforce statutes and to rule on challenges to their constitutionality either on their face or as applied in accordance with their provisions. Any problems that result from pervasive nonenforcement are political questions for the solution of which recourse would have to be had to the legislative or executive branches; the judiciary has neither the authority nor the capabilities for their resolution.

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

Order modified, with costs to defendants, in accordance with the memorandum herein, and, as so modified, affirmed.


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    The People of the State of New York, Respondent, v Steven Williams, Appellant.
    Argued June 5, 1980;
    decided June 26, 1980

      APPEARANCES OF COUNSEL

      Robert S. Dean and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Meredith Anne Feinman and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Where, as here, the indictment charges a controlled substance sale to a particular individual but pursuant to the rule recognized in People v Jackson (39 NY2d 64) evidence of uncharged sales to others is admitted in order to show the method of operation, the trial court should, when such evidence comes in and again in its charge at the end of the case, caution the jury concerning the limited purpose for which it is being admitted (People v Marshall, 306 NY 223, 227), and in any event should focus the jury’s attention in the charge upon the fact that defendant can be found guilty on the sale count only if the jury finds that he made or participated in the making of a sale to the person named in the indictment.

While the conduct of the trial was deficient in these respects, defendant neither requested a limiting instruction nor excepted to the charge as given. A charge so deficient as to amount to no charge at all we have set aside even though no exception was taken (People v Wallens, 297 NY 57, 60, 63). But the charge as given did refer to testimony that the named individual, Moore, was seen with defendants in the same modus operand! and that when Moore was arrested a bag of heroin had been found in his left rear pocket, defendant Williams’ attorney’s summation informed the jury that "count one of the indictment deals with the sale of narcotics to one Ernest Moore on December 7, 1974,” and noted the failure of the prosecution to produce Moore as a witness, the prosecutor’s opening referred to "these two defendants acting together selling heroin to Ernest Moore” and his summation commented on pictures showing Ernest Moore and defendants together, on the glassine envelope recovered from Moore, on Ernest Moore "the buyer of the narcotics” and on defendant’s negotiations with "buyers such as Ernest Moore.” On the whole record, therefore, the trial was not unfair to defendant.

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

Order affirmed in a memorandum.


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    In the Matter of the Arbitration between Local Division 1179, Amalgamated Transit Union, AFL-CIO, Respondent, and Green Bus Lines, Inc., Appellant.
    Submitted May 28, 1980;
    decided July 1, 1980

      APPEARANCES OF COUNSEL

      J. Irwin Shapiro for appellant.

      Milton E. Jacobowitz for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the motion to vacate the arbitration award denied, and the cross motion to confirm the award granted. The certified question is not answered as unnecessary.

It was error for the Appellate Division to have vacated the award merely because it disagreed with the arbitrator’s interpretation of the parties’ agreement. When an arbitrator has been empowered to interpret a contract, the resulting award is not subject to vacatur unless it is totally irrational (e.g., Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582; Matter of National Cash Register Co. [Wilson], 8 NY2d 377, 383). Parties who agree to refer contract disputes to arbitration must recognize that " '[arbitrators may do justice’ and the award may well reflect the spirit rather than the letter of the agreement” (Rochester City School Dist. v Rochester Teachers Assn., supra, at p 582). Courts may not overturn an award because they believe the arbitrator has misconstrued the apparent, or even the obvious, meaning of the contract (id.). Here, the arbitrator, resolving the very dispute submitted to him, interpreted the agreement in light of what he found to be the intent of the parties. In doing so, we cannot conclude that he reached a completely irrational result.

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

Order reversed, etc.


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    Lena I. Nopper, Respondent, v Robert J. Nopper, Appellant.
    Submitted May 30, 1980;
    decided July 1, 1980

      APPEARANCES OF COUNSEL

      George A. Glassanos for appellant.

      Abram Miner for respondent.
   OPINION OF THE COURT

Memorandum.

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

In these circumstances, the Appellate Division correctly concluded that plaintiff may maintain an action on the parties’ separation agreement. Defendant, in his answer, did not dispute the validity of the agreement, and therefore is deemed to have admitted it (CPLR 3018, subd [a]). He may not now be heard to complain that the contract is no longer in existence. In so ruling, we intimate no view on the question whether defendant could collaterally attack the clause in the divorce decree which provided for survival of the separation agreement.

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

Order affirmed, with costs, in a memorandum.


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    In the Matter of Board of Education of the Deer Park Union Free School District, Respondent, v Deer Park Teachers Association, by its President, Marletta Stevenson, Appellant. (And Another Proceeding.)
    Argued June 2, 1980;
    decided July 1, 1980

      APPEARANCES OF COUNSEL

      Deborah A. Watarz and Paul E. Klein for appellants.

      Robert E. Sapir for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the applications for a stay of arbitration denied.

Inasmuch as the arbitration clause in the parties’ collective bargaining agreement is unambiguous, encompassing all disputes based upon the interpretation, meaning or application of any provision of the contract, and the grievances at issue require interpretation of substantive provisions of the contract, the matter should proceed to arbitration (Board of Educ. v Barni, 49 NY2d 311, 314; Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669, 671). Contrary to the school board’s contention, the fact that the substantive clauses of the contract might not support the grievances put forth by the union is irrelevant on the threshold question of arbitrability (Board of Educ. v Barni, supra; Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., supra). It is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of these parties (Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., supra).

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

Order reversed, etc.


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    The People of the State of New York, Respondent-Appellant, v Lawrence Rosano, Michael Newmark, Thomas Naples, Also Known as Tim Naples, and Village Mall Townhouses, Inc., Appellants-Respondents.
    Argued May 27, 1980;
    decided July 1, 1980

      APPEARANCES OF COUNSEL

      James M. La Rossa and Anthony Napolitano for Village Mall Townhouses, Inc., and others, appellants-respondents.

      Lawrence S. Goldman and Anthony Napolitano for Thomas Naples, appellant-respondent.

      Robert Abrams, Attorney-General (John M. Farrar, Shirley Adelson Siegel and George D. Zuckerman of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, essentially for the reasons stated in the opinion of Mr. Justice Leon D. Lazer at the Appellate Division (69 AD2d 643; see, also, People v Chesler, 50 NY2d 203).

We would note, however, that we express no opinion as to the necessity of demonstrating that a defendant harbored an intent that the statement be uttered or published as true in order to sustain a conviction for making an apparently sworn false statement in the second degree. (See Penal Law, § 210.35.) It suffices to say that, in our opinion, the People failed to demonstrate beyond a reasonable doubt that the affidavits submitted to the lending institution constituted a falsity.

Further, we concur with the Appellate Division that subdivision 3 of section 79-a of the Lien Law does not fall prey to any constitutional infirmity. (See People v Farina, 290 NY 272.) That section provides that "[f]ailure of the trustee to keep the books or records required by section seventy-five shall be presumptive evidence that the trustee has applied or consented to the application of trust funds received by him as money or an instrument for the payment of money for purposes other than a purpose of the trust as stated in section seventy-one.” (See, also, Lien Law, § 75, subd 4.) It is readily apparent that both courts below, and quite correctly, treated this statutory presumption as only a permissible inference that defendants, by failing to keep statutorily prescribed records, used trust funds for other than authorized trust purposes. Of course, the presumption does not relate to criminal intent. Thus, the prosecution was not relieved of its duty to prove defendants’ guilt beyond a reasonable doubt and subdivision 3 of section 79-a of the Lien Law did not work to shift the burden of proof to defendants. It is beyond dispute that there exists a rational basis between the fact proved (failure to keep records) and the fact presumed (applying trust funds for a nontrust purpose). (Cf. Ulster County Ct. v Allen, 442 US 140.)

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

Order affirmed in a memorandum.


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    In the Matter of Sadie Kivo, Appellant, v Arthur Levitt, as Administrator of the New York State Employees’ Retirement System and Comptroller of the State of New York, Respondent.
    Argued May 28, 1980;
    decided July 1, 1980

      APPEARANCES OF COUNSEL

      Beverly Gross and Steven C. Decosta for appellant.

      Robert Abrams, Attorney-General (William J. Kogan and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from should be affirmed, with costs, essentially for the reasons stated in the opinion by Mr. Justice Staley at the Appellate Division.

We agree with the court below that respondent’s interpretation of section 2 (subd 2, par a) of the Retirement and Social Security Law as excluding deferred pay increases not yet paid to the retiree from the wage base for computation of pension benefits is entirely proper and must be upheld. We note, however, that we express no opinion on the question whether section 431 of the Retirement and Social Security Law would require the same result had petitioner actually received the pay increases in issue as a lump sum, for this question is not presented by the facts of this case.

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

Judgment affirmed, with costs, in a memorandum.


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    In the Matter of Barchat Tavern, Inc., Doing Business as Aladdins Pub, La Las Place, Respondent, v Liquor Authority of the State of New York, Appellant.
    Argued May 30, 1980;
    decided July 1, 1980

      APPEARANCES OF COUNSEL

      Martin P. Mehler and Warren B. Pesetsky for appellant.

      Edward S. Raskin and Joseph A. Stabile for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs.

There is no record evidence to support the conclusion that the licensees had violated subdivision 6 of section 106 of the Alcoholic Beverage Control Law by "suffer[ing] or permitting the] premises to become disorderly” on either May 17 or May 18, 1978. To the contrary, as the Appellate Division correctly found, the evidence upon which the State Liquor Authority based its determination demonstrated that the licensees and their agents had not used any unnecessary force or otherwise acted improperly in removing the unruly patron from the premises or in resisting his return on the following day. Accordingly, the agency’s determination canceling the tavern’s liquor license was properly annulled.

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

Judgment affirmed, with costs, in a memorandum.


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    The People of the State of New York, Appellant, v Elena Alirex, Respondent, et al., Defendants.
    Submitted June 16, 1980;
    decided July 1, 1980
   Motion to dismiss the appeal denied.


text:
    Charles Borda, Respondent, v Leopold Borda et al., Respondents, and Susan R. Borda, Appellant.
    Submitted May 27, 1980;
    decided July 1, 1980
   Motion for leave to appeal dismissed upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Judge Fuchsberg taking no part.


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    Shao Fen Chin, Appellant, v St. Lukes Hospital Center et al., Defendants, and Charles W. Davidson et al., Respondents.
    Submitted June 23, 1980;
    decided July 1, 1980
   Motion to vacate the Court of Appeals order of dismissal dated June 5, 1980 denied. [See 50 NY2d 928.]


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    Walter Knieriemen, Appellant, v Bache Halsey Stuart Shields, Incorporated, Respondent.
    Decided July 1, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light Co., 36 NY2d 754).


text:
    Angelina Sinicropi, Appellant, v Louis J. Milone, as Director of Probation of the County of Nassau, et al., Respondents.
    Submitted June 2, 1980;
    decided July 1, 1980
   Motion, treated as one for leave to appeal from an order of the Appellate Division denying a motion to remand the proceeding to Supreme Court, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 39, pp 157-158).


text:
    Carlos Sinhogar et al., Appellants, v Carol Parry, Individually and as Assistant Administrator of Special Services for Children, et al., Respondents.
    Decided July 1, 1980
   Except insofar as the order of the Appellate Division modified the order of Supreme Court by granting defendant Philip H. Toia’s motion to dismiss the complaint against him in his individual capacity, appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the remaining portion of the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Irene A. Swanson, Appellant, v Robert E. Swanson, Respondent.
    Submitted June 9, 1980;
    decided July 1, 1980
   Motion to dismiss the appeal denied (CPLR 5601, subd [d]).


text:
    The People of the State of New York, Respondent, v Carlos Cuevas, Appellant.
    Argued May 29, 1980;
    decided July 3, 1980

      APPEARANCES OF COUNSEL

      Gary E. Divis and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Alan D. Rubinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The court may upon application by the prosecutor exclude the public from a portion of the trial during the testimony of an undercover agent in order to protect the integrity of pending investigations, as well as the witness’ future usefulness, or to insure his safety from possible reprisals. The principles and procedures applicable to such a motion have been discussed at length in our prior decisions (see, e.g., People v Hinton, 31 NY2d 71; People v Jones, 47 NY2d 409).

Here the District Attorney sought to have the courtroom closed solely on his representation that the witness was an undercover officer. Although the court questioned the prosecutor prior to granting the motion, it erred by failing to make an adequate inquiry of the witness, as well as the factual findings prescribed in People v Jones (supra).

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

Order reversed, etc.


text:
    Avi Zubli et al., Appellants, v Community Mainstreaming Associates, Inc., et al., Respondents, et al., Defendant.
    Argued June 5, 1980;
    decided July 3, 1980

      APPEARANCES OF COUNSEL

      Solomon H. Friend for appellants.

      Seymour H. Kligler, David R. Kay and Asher M. Miller for Community Mainstreaming Associates, Inc., respondent.

      Robert Abrams, Attorney-General (William J. Caplow, Shirley Adelson Siegel and Thomas P. Dorsey of counsel), for Thomas Coughlin, III, as Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities, respondent.

      Stephen M. Richardson for Eastern Federal Savings and Loan Association of Sayville, respondent.
   OPINION OF THE COURT

Order modified, with costs to defendants-respondents, by declaring section 41.34 of the Mental Hygiene Law constitutional as applied (see Lanza v Wagner, 11 NY2d 317, 334) and, as so modified, affirmed for reasons stated in the opinion by Mr. Justice Douglas F. Young at Supreme Court, Nassau County (102 Misc 2d 320).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer. Taking no part: Judge Wachtler.


author: Jones, J.

text:
    In the Matter of Danny R., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued April 25, 1980;
    decided July 3, 1980

      APPEARANCES OF COUNSEL

      Eve Cary, William E. Hellerstein and Charles Schinitsky for appellant.

      Eugene Gold, District Attorney (Roseann MacKecknie and Sonya Kornblum of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

While we agree with appellant’s contention that it was error for Family Court to receive, over objection, the arresting officer’s hearsay testimony as to the identity of the change purse, this error was, in our opinion, harmless.

Family Court, after a fact-finding hearing, determined that appellant had committed acts which, if done by a person 16 years of age or older, would have constituted the crime of robbery in the second degree. (Penal Law, § 160.10.) To sustain this finding, we must conclude that the People established as one element of the crime that appellant forcibly stole property from the victim.

The record discloses that the victim testified that two boys, after one grabbed her from the back and put his hands over her mouth, took a change purse from her shoulder bag while she prepared to walk up the stairway from the subway platform to the street. Further, it was elicited through the testimony of the arresting officer, that the victim screamed "That’s him” when the officer brought appellant back to the area where the robbery occurred. This statement was properly admitted as a spontaneous declaration, and we find no merit to appellant’s suggestion that CPL 60.25 was meant to alter the rule recognizing the admission of such evidence in criminal prosecutions or similar proceedings as an exception to the hearsay rule. (See People v Caviness, 38 NY2d 227.)

In light of this unrebutted testimony, we agree with the Appellate Division that the People established beyond a reasonable doubt that appellant, in concert with another, forcibly stole property from the victim. It simply was not necessary for the People to prove that the change purse discovered on appellant’s person was the same purse stolen from the victim, and the testimony to that effect, albeit hearsay, can be considered mere surplusage.

Jones, J.

(dissenting). After having sustained the objection of appellant’s counsel when the prosecutor sought to introduce such testimony, the trial court himself later elicited from Patrolman Ponall, and received in evidence, testimony that the victim, had made an out-of-court verification to him that the change purse found sticking out of defendant’s pocket was hers. I cannot agree that the admission of this concededly hearsay testimony was harmless error, i.e., that there was no significant probability that the trial court would have made a different finding had it not been for the erroneous admission of this testimony (People v Crimmins, 36 NY2d 230, 242). The trial court in his brief oral decision expressly referred to appellant’s possession of the victim’s change purse in his summary of the evidence on which he based his conclusion that appellant had committed acts which, if done by a person 16 years or older, would have constituted the crime of robbery in the second degree. The circumstance, relied on by the majority, that there was other evidence sufficient to support a finding of guilt, had the trial court chosen to ignore the hearsay testimony, does not satisfy the harmless error standard. I would therefore reverse the order of the Appellate Division, vacate the adjudication of juvenile delinquency and remit the case for a new hearing.

Judges Jasen, Gabeielli, Wachtler and Fuchsberg concur; Judge Jones dissents and votes to reverse in an opinion in which Chief Judge Cooke and Judge Meyer concur.

Order affirmed, without costs, in a memorandum.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Stephen D. Martin, Appellant.
    Argued April 24, 1980;
    decided July 3, 1980

      APPEARANCES OF COUNSEL

      James J. Harrington and Steven B. Prystowsky for appellant.

      Thomas R. Sullivan, District Attorney (George E. McVay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

It is defendant’s contention that, although the police may have had probable cause to arrest him, they acted improperly when they entered his home for that purpose without first obtaining an arrest warrant (Payton v New York, 445 US 573). Consequently, defendant argues, the evidence obtained as a result of the entry should have been suppressed. During his suppression hearing, however, defendant argued only that the physical evidence seized in conjunction with his arrest should be excluded because it was found by the arresting officers as a result of an unauthorized "general search” and not, as the People contended, through an inadvertent discovery of items lying "in plan view”. At no time did defendant request the court to rule upon the propriety of the police officers’ presence on the premises, and, in fact, the only issue that was placed before the suppression court was the fundamentally factual question whether the testimony of the police officers concerning their observations upon entering was credible under the circumstances.

Having thus failed to raise a constitutional challenge to the police officers’ entry into his home within the context of his initial suppression motion, defendant is now foreclosed by our rule of "preservation” from advancing any such ground for reversal on appeal to this court (People v Booker, 49 NY2d 989; People v Tutt, 38 NY2d 1011; cf. People v De Bour, 40 NY2d 210, 214). As we noted in People v Tutt (supra, at pp 1012-1013), when a defendant neglects to raise a particular legal argument before the court of first instance, he effectively deprives the People of a fair opportunity to present their proof on that issue, and, as a consequence, the resulting record is inadequate to permit the appellate court to make an intelligent determination on the merits. Moreover, our rule of "preservation” requires defendants to raise all of their arguments in a timely fashion so that errors of law which might otherwise necessitate a retrial can be avoided or promptly cured (see People v Michael, 48 NY2d 1, 6). In this case, defendant was required to raise his constitutional challenge to the arrest before the suppression court if he intended to base his appeal from its decision upon that ground. Since he failed to do so and thereby failed to give the suppression court an opportunity to consider the question before the proceeding against him progressed any further, defendant cannot now rely upon the constitutional issue as a ground for reversal in this court.

In view of our holding, we need not reach the question whether the rule articulated by the Supreme Court in Payton v New York (445 US 573, supra) should be applied retroactively to invalidate arrests made prior to the date of that ruling. Finally, we note that defendant’s contention that the police officers’ discovery of the evidence lying "in plain view” was not truly inadvertent cannot provide a basis for reversal, since the question of "inadvertence” is essentially one of fact which may be resolved only through an assessment of the credibility of the various witnesses (People v Payton, 45 NY2d 300, 312-313, revd on other grounds 445 US 573). Here, the trier of fact explicitly found on the basis of legally sufficient evidence that the items in question had been lying "in plain view” and had been found by the police purely by chance. This factual determination having been made and affirmed below, the question of "inadvertence” is now beyond our power of review (see NY Const, art VI, § 3, subd a; Cohen and Karger, Powers of the New York Court of Appeals, § 198, subd [a]).

Wachtler, J.

(dissenting). I disagree with the majority’s conclusion that the legality of the search and seizure, as an incident to the defendant’s arrest, is not reviewable in this court. I also believe that the People did not meet their burden of proving that their actions were justified by exigency or any exception to the warrant requirement. Consequently, the evidence seized is inadmissible and the judgment of conviction should be reversed.

The real evidence against the defendant was seized on two occasions in October, 1975, by members of an anticrime team of the New York Police Department assigned to the 123rd Precinct in Staten Island. Following denial of his motion to suppress the defendant pleaded guilty to felony possession of a weapon. The Appellate Division affirmed, without opinion.

The facts adduced at the pretrial hearing establish that the initial search and seizure of October 13, 1975 was unlawful in that it was warrantless and without any constitutionally cognizable justification. On that date, Theresa Long, a 16 year old, entered the police station shortly after noon and requested to be assisted in her return to a drug rehabilitation center in New Jersey. Miss Long who was not known to the police, had track marks on her arms and admitted using drugs. She claimed that she had been living with the defendant on a barge which was moored in the Arthur Kill, Staten Island. She disclosed that she had sexual relations with the defendant and that Martin had drugs and guns on the barge. The girl’s parents were summoned to the precinct and, after being apprised of their daughter’s statements, were asked whether they wanted to press charges. They responded affirmatively and five police officers were dispatched to the defendant’s residence. Approximately three hours elapsed from the time Miss Long entered the precinct and the police officers arrived at the barge.

Although there was no reason for concern about flight, destruction of evidence or public safety, the police ignored the warrant requirement and proceeded directly to Martin’s home. The leader of the "anti-crime team” knocked on the door and when Martin responded, the detective announced that they were police officers and ordered him to stick his hands out of the door. Martin obeyed and was immediately placed under arrest. The police then directed him back into the barge at gunpoint. Martin who was wearing only undershorts was permitted to put on his clothes which were on a nearby chair and was then handcuffed. These events took about seven minutes; nevertheless, the police officers remained inside the barge for almost an hour.

During this period various items were seized. The testimony established that one of the officers found a .22 caliber derringer in an open drawer in the night table next to defendant’s bed. Another member of the police team seized a revolver from a chair. Two hypodermic syringes and cotton balls were also taken. When the officers were finished they obtained the keys from Martin and locked the barge, placing it under guard until a search warrant could be obtained.

The next day a search warrant was issued authorizing the seizure of additional handguns, narcotics and pornographic material. The warrant was based on the observations made during the arrest and additional information from Miss Long after the officers had reported the results of the afternoon’s search. This second search yielded 12 handguns, a large quantity of drug paraphernalia, amphetamines and still and video tape pictures of the defendant and complainant committing various sexual acts. The validity of the second search based as it was on the information gleaned during the first search, hinges on the validity of the initial search and seizure of October 13, 1975.

Before analyzing that warrantless search and seizure I must digress briefly to resolve the issue of preservation for appellate review. I disagree with the majority that there is an impediment to our consideration of the legality of these searches and seizures. Although the defendant failed to challenge the warrantless arrest in his home, he did move to suppress the physical evidence prior to trial. The suggestion that we are jurisdictionally barred from reaching this issue because Martin’s counsel did not attack the arrest reflects a misapprehension of the principle of preservation.

For a matter to be considered by the court, it must be raised at a time when the People have an evidentiary opportunity to counter the assertion (People v Tutt, 38 NY2d 1011). I am unable to perceive the possibility of any. change in the People’s proof by virtue of a challenge to the arrest. Here, the motion to suppress physical evidence raised the only issue capable of providing the defendant with a remedy. The exclusionary rule does not apply to the custody of the defendant. A determination that an arrest was unlawful does not result in release of the defendant (cf. United States v Crews, 445 US 463), rather, the illegality of an arrest is significant only to the extent that it triggers the exclusionary rule with respect to statements or physical evidence obtained at the time of the arrest. The manner in which the parties and the courts below addressed the suppression motion is sufficient to warrant consideration by this court.

Since the instant record is devoid of exigent circumstances we consider whether or not the search and seizure was proper as incident to a lawful arrest or under the plain view doctrine.

The Supreme Court has recently declared that warrantless arrests on private premises are unconstitutional (Payton v New York, 445 US 573). Although this defendant’s arrest preceded Payton (supra) I am not prepared to legitimatize the seizures which flowed from Martin’s arrest on that basis. It has been 20 years since the exclusionary rule was held applicable to remedy unlawful State police action. There simply was no excuse for the officers to proceed without either an arrest or search warrant to Steve Martin’s home. Considering the clarity of the constitutional protection and the severity of the exclusion sanction on the government and society as a whole, refusal to adhere to the warrant requirement seems inexcusable. Surely, the burden of securing a warrant is greatly outweighed by the strain on all levels of our criminal justice system which comes from continuously reviewing warrantless police action.

The trial court adopted the position that the October 13 search was justified on the grounds that the evidence seized was in plain view. I do not agree.

The plain view doctrine requires: (1) lawful presence, (2) inadvertence, and (3) incriminatory nature must be apparent from its outward appearance (Coolidge v New Hampshire, 403 US 443; People v Spinelli, 35 NY2d 77). Not only was the police presence here not lawful, the record establishes conclusively that the discovery of the items seized was anything but inadvertent. The informant had specifically and repeatedly told the police before they left the precinct that guns and drugs were located on Martin’s barge. This was clearly a planned warrantless search which must be condemned.

Moreover, as we noted in People v De Bour (40 NY2d 210), the police perform many and varied tasks in our society, and the measure of reasonableness will be a function of the type of task they are performing. Consequently, a more exacting standard will be applied to the actions of those officers assigned expressly to anticrime duties. The officers in the present case were clearly engaged in the "competitive enterprise” of enforcing the criminal law and the manner in which they gather evidence must withstand the strictest scrutiny.

Where, as here, the discovery of evidence or contraband is anticipated the principle of plain view may not be asserted to enable the government to circumvent constitutional safeguards (People v Spinelli, supra, at p 81). Planned warrantless searches are the antithesis of constitutional action and should not be countenanced in our system of justice.

Thus, in my view, the judgment appealed from should be reversed and the case remitted for trial.

Chief Judge Cooke and Judges Jasen, Gabrielli and Jones concur in memorandum; Judge Meyer concurs in result on the basis of the last paragraph of the majority memorandum; Judge Wachtler dissents and votes to reverse in an opinion in which Judge Fuchsberg concurs.

Order affirmed.

      . Defendant also argued that certain weapons, narcotics and pornographic paraphernalia that were seized pursuant to a subsequently issued search warrant should be suppressed because the warrant itself was issued on the basis of evidence unlawfully seized during the course of his arrest. The resolution of this question, of course, depends upon whether the initial entry by the police and the resulting seizure of items "in plain view” were lawful.

      . It should be noted that the types of "exigent circumstances” which might justify a warrantless, in-home arrest are not necessarily the same as those which might justify a warrantless search of the premises (see, e.g., Dorman v United States, 435 F2d 385). The likelihood that an attempt at escape is imminent for example, might well provide sufficient justification for a warrantless arrest in the home, although such a circumstance would be irrelevant in assessing the propriety of a warrantless search. Given the fundamental differences in the criteria to be applied in evaluating "exigency” for purposes of an arrest and "exigency” for purposes of a search, it cannot seriously be argued that defendant’s suppression motion in this case, which challenged only the propriety of the search and not the lawfulness of the arrest, presented the People with adequate opportunity to submit whatever evidence they might have had regarding the need to act swiftly and without the delays which often attend warrant applications.