text:
    The People of the State of New York, Respondent, v Willie Outley, Appellant. The People of the State of New York, Respondent, v Michael Maietta, Also Known as Michael Maletta, Appellant. The People of the State of New York, Respondent, v Jose Ogtong, Appellant.
    Argued and submitted January 8,1993;
    decided February 16, 1993

      POINTS OF COUNSEL

      Lee D. Greenstein, Albany, for appellant in the first above-entitled action.
    I. Due process entitles appellant, who was arrested between the dates of his guilty plea and sentencing, allegedly in violation of a conditional plea, to an evidentiary hearing with respect to the underlying circumstances of the arrest, prior to receiving an enhanced sentence, because he pleaded his innocence to the new charges. (Townsend v Burke, 334 US 736; People v Perry, 36 NY2d 114; United States v Lee, 818 F2d 1052; People v Villanueva, 144 AD2d 285; People v Banks, 161 AD2d 957; Innes v Dalsheim, 680 F Supp 517; Matter of Holtzman v Beatty, 97 AD2d 79; Matter of Department of Envtl. Protection v Department of Envtl. Conservation, 70 NY2d 233.) II. The imposition of a one-year sentence was excessive when appellant had been promised probation but was sentenced to one year in jail solely because of a misdemeanor arrest prior to sentencing, where appellant has a limited criminal record and had a plausible explanation for the rearrest charging him with a violation of an order of protection. III. The court abused its discretion in refusing to afford appellant a hearing pursuant to CPL 440.10 to determine the validity of the allegations underlying the postplea arrest, when that arrest was the sole basis for an enhanced sentence. (People v Redman, 148 AD2d 966.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Robin A. Forshaw, Barbara D. Underwood and Daniel J. OReilly of counsel), for respondent in the first above-entitled action.
    I. When the sentencing court sought to rely on a postplea arrest as a basis, under the plea agreement, for voiding its promise of probation and instead imposing a sentence of imprisonment, the court afforded defendant due process by providing him with a meaningful opportunity to contest the charge underlying the arrest. (Gardner v Florida, 430 US 349; Townsend v Burke, 334 US 736; People v Murello, 39 NY2d 879; People v Cataldo, 39 NY2d 578; People v Selikof, 35 NY2d 227; Innes v Dalsheim, 864 F2d 974; Williams v New York, 337 US 241; People v Felix, 58 NY2d 156; United States v Lee, 818 F2d 1052.) II. Defendant has failed to preserve any claim of a right to a hearing pursuant to CPL 400.10. In any event, no such hearing was required. (United States v Lee, 818 F2d 1052; United States v Pugliese, 805 F2d 1117; People v Taylor, 65 NY2d 1.) III. The sentence imposed was not excessive. (People v Miles, 61 NY2d 635; People v Suitte, 90 AD2d 80; People v Kazepis, 101 AD2d 816.)

      Thomas M. O'Brien, New York City, for The Legal Aid Society, amicus curiae, in the first above-entitled action.
    The trial court denied appellant due process of law by imposing a one-year jail sentence instead of the promised probation solely because appellant was arrested on another charge, without requiring some proof of that charge or giving appellant an opportunity to rebut the charge. (Schware v Board of Bar Examiners, 353 US 232; United States v Lee, 818 F2d 1052; United States v Pugliese, 805 F2d 1117; Townsend v Burke, 334 US 736; United States v Thicker, 404 US 443; Specht v Patterson, 386 US 605; Collins v Buchkoe, 493 F2d 343; Elswick v Holland, 623 F Supp 498, appeal dismissed sub nom. Matter of Elswick, 782 F2d 1034; United States v Powell, 487 F2d 325.)

      Proskauer Rose Goetz & Mendelsohn, New York City (Steven C. Krone and Bruce G. Hart, Jr., of counsel), for appellant in the second above-entitled action. The court improperly enhanced Maietta’s sentence based solely upon the fact of a postplea arrest, the validity of which was challenged at sentencing.

      (People v Banks, 161 AD2d 957; People v Harrison, 161 AD2d 550; People v Caridi, 148 AD2d 625, 74 NY2d 662; People v Faulkner, 182 AD2d 1025; Townsend v Burke, 334 US 736; People v Perry, 36 NY2d 114; United States v Lee, 818 F2d 1052; People v Villanueva, 144 AD2d 285; Innes v Dalsheim,
      680 F Supp 517, 864 F2d 974; People v Curtis, 116 Misc 2d 637.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Daniel S. Ratner and Peter D. Coddington of counsel), for respondent in the second above-entitled action.
    The court sentenced appellant in accordance with its sentence promise. (People v Carcel, 3 NY2d 327; People v Schultz, 73 NY2d 757; People v Danny G., 61 NY2d 169; People v McConnell, 49 NY2d 340; Matter of Benjamin S. v Kuriansky, 55 NY2d 116, 56 NY2d 570, 807, sustained sub nom. Siegel v State of New York, 691 F2d 620, 459 US 1209, 460 US 1104; People v Frederick, 45 NY2d 520; People v Selikoff, 35 NY2d 227; People v Farrar, 52 NY2d 302.)

      Richard Sweren, New York City, for appellant in the third above-entitled action.
    I. Due process entitled appellant to an evidentiary hearing to refute the sole aggravating factor used by the trial court to enhance his sentence. (Townsend v Burke, 334 US 736; United States v Lee, 818 F2d 1052, 484 US 956; United States v Pugliese, 805 F2d 1117; Innes v Dalsheim, 680 F Supp 517, 864 F2d 974, 493 US 809; People v Kihm, 143 AD2d 199; People v Banks, 161 AD2d 957; People v Faulkner, 182 AD2d 1025; People v Maietta, 173 AD2d 17; People v Villanueva, 144 AD2d 285; People v Schultz, 73 NY2d 757.) II. It was an abuse of discretion for the court to arbitrarily reject appellant’s credible exculpatory explanation for his rearrest without adequate fact finding. (People v Villanueva, 144 AD2d 285; Innes v Dalsheim, 680 F Supp 517; People v Banks, 161 AD2d 957; People v Maietta, 173 AD2d 17; People v Farrar, 52 NY2d 302; People v Blagrove, 146 AD2d 490; People v Hernandez, 86 AD2d 618.) III. Appellant’s ambivalent plea of guilty was coerced by the court and therefore was not knowingly, intelligently, or voluntarily entered. (Matter of Randall v Rothwax, 161 AD2d 70, 78 NY2d 494; People v Jones, 63 AD2d 1008; People v Griffith, 80 AD2d 590; People v Hollis, 74 AD2d 585, 49 NY2d 1004; People v Hernandez-Flores, 172 AD2d 159; People v Fowler, 167 AD2d 154; People v Serrano, 15 NY2d 304; People v Moore, 71 NY2d 1002.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Robin A. Forshaw, Barbara D. Underwood and Daniel J. O’Reilly of counsel), for respondent in the third above-entitled action.
    I. The courts below correctly rejected defendant’s challenge to the sentence of imprisonment imposed after defendant was rearrested on a new charge, in violation of the condition imposed by the court for its promise of a sentence of probation under the plea agreement. (People v Seaberg, 74 NY2d 1; People v Moissett, 76 NY2d 909; Gardner v Florida, 430 US 349; Townsend v Burke, 334 US 736; People v Murello, 39 NY2d 879; People v Cataldo, 39 NY2d 578; People v Selikoff, 35 NY2d 227; Innes v Dalsheim, 864 F2d 974.) II. Defendant’s plea of guilty and his waiver of the right to appeal were entered knowingly, intelligently and voluntarily. (People v Harris, 61 NY2d 9; Matter of Randall v Roth-wax, 161 AD2d 70, 78 NY2d 494; People v Lopez, 71 NY2d 662; People v Seaberg, 74 NY2d 1.)
   OPINION OF THE COURT

Hancock, Jr., J.

In these cases, the courts, in accepting guilty pleas, expressly conditioned the agreed-upon sentences on defendants not being arrested while on release awaiting sentence. Defendants, although arrested on additional charges prior to their sentencing dates, specifically denied the commission of any criminal acts and claimed that there was no basis for their arrests. Despite their denials, defendants were given sentences substantially greater than stipulated in the conditional plea bargains.

Defendants’ appeals present this question: when a court has made a plea bargain containing a no-arrest condition and the defendant is arrested prior to sentencing for an act which is denied, what basis for the arrest must be shown in order for the court to be relieved of its obligation to impose the bargained-for sentence? For reasons to be explained in our discussion of this question, we conclude in each case that the basis for the arrest developed on the record by the court before it imposed sentence was sufficient to establish a failure of the no-arrest condition. Accordingly, there should be an affirmance of each order.

People v Outley

On January 22, 1990, defendant pleaded guilty to endangering the welfare of a child in satisfaction of charges that he had sexually abused his 13-year-old daughter. At the time of the plea, the court agreed to sentence defendant to a period of probation not to exceed three years provided that defendant "not be arrested on any other charges during [the] adjournment period.” The court stated to defendant: "If you violate any of these conditions, I will not be bound by my promise, and I will be free to sentence you to whatever the case allows, in this case, up to one year in prison. Do you understand that?” Defendant replied, "Yes”. The court scheduled sentencing for March 8, 1990 and released defendant on his own recognizance until that date.

When defendant appeared for sentencing on March 8, it was revealed that he had been arrested on February 26, on a charge of criminal contempt (Penal Law § 215.50 [3]) for violating two court orders — an order of Queens County Criminal Court and Queens County Family Court — both directing him to stay away from his wife and daughter and their residence. Defendant’s counsel advised the sentencing court that although her client had visited his former home while his wife and daughter were present he "didn’t have the requisite criminal intent to defy [the orders]” to constitute a criminal contempt.

Defendant explained that he had stopped at his former home to pick up some papers he needed for a forthcoming Federal court legal proceeding. Before going there, he said, he talked with his wife who told him he could "come back and get the papers”; his violation of the orders "was not done with malice”, he claimed, and "there was no bad intent whatsoever”. Defense counsel argued that a hearing was necessary to determine whether it could be shown "by a preponderance of evidence that the defendant” had, in fact, "committ[ed] the crimes that are the gravamen of the new arrest” and that without "an evidentiary hearing” the court lacked power to impose the enhanced sentence. The court replied that what defense counsel was doing "right [then]” was "giving [defendant’s] side at a hearing as to why he was there”. Moreover, the court noted, defendant’s wife or the person concerned had called the police and his wife had signed a sworn affidavit attesting to the allegations in the criminal contempt complaint, "indicating she want[ed] [the] Order of Protection enforced.” After reviewing the unfavorable probation report, the court sentenced defendant to one year in the New City Reception and Rehabilitation Center.

The Appellate Term affirmed, concluding that "[s]ince defendant was permitted to explain to the court the allegedly exculpatory details of his breach of the order of protection, the requirements of due process were satisfied” and that the enhanced sentence was a proper exercise of discretion considering the fact that defendant’s wife was the complainant. A Judge of this Court granted leave to appeal.

People v Maietta

On March 11, 1991, defendant pleaded guilty in satisfaction of several charges of burglary and related crimes in four separate indictments to criminal possession of stolen property in the third degree, two discrete charges of attempted burglary in the third degree, and burglary in the third degree. In accepting defendant’s guilty pleas, the court agreed that it would make the sentences concurrent so that the aggregate term of imprisonment for defendant would be a maximum of eight years and a minimum of four years. The plea arrangement was expressly conditioned, however, upon the defendant’s "not be[ing] rearrested between [the date of the plea] and the date of sentence”. The record contains the following colloquy:

"the court: You are a professional burglar, sir, so if you don’t get out of your profession and you get arrested again, instead of it being four to eight, I will give you a total time in jail which will come to 22 years in jail, do you understand that?
"defendant maietta: Yes.
"the court: You will not be permitted to withdraw your pleas of guilty, you will not be permitted to go to trial, you will just get an enhanced sentence of 22 years in State’s prison, do you understand?
"defendant maietta: Yes, sir.
"the court: Do you want to ask me any questions? "defendant maietta: No, sir.
"the court: Of course if you appear and don’t get arrested I will give you four to eight.
"defendant maietta: Yes.”

On May 2, 1991 when defendant appeared for sentencing, the prosecuting attorney advised that defendant had been arrested on an indictment charging him with the commission of a burglary and related crimes in Westchester County on March 28, 1991. Defense counsel, in an extended statement, explained that the Westchester indictment was for a burglary in Yonkers in which the perpetrators employed a jeep registered to his client but not driven by him. Defendant had nothing to do with it, he said, and he had three alibi witnesses who would testify that his client was working at the time of the crime.

Defense counsel produced an unsigned statement from one Anthony Salveggi to the effect that he had been driving defendant’s jeep, that defendant was not present, and that the person who had committed the burglary was Alfredo Occhino, his passenger in the jeep. It appears, however, that Anthony Salveggi was known as a professional burglar who had participated with defendant in past crimes and that Alfredo Occhino had been charged as a codefendant in one of the burglary indictments to which defendant had pleaded guilty.

At the end of the discussion, the court, adverting to the no-arrest condition, stated:

"it was a condition that may result in an increased sentence I wanted everyone to fully understand. I wasn’t going to ambush anyone on the date of sentence.”

and further:

"an arrest is still an arrest, and I look at it, at an arrest and sometimes I use it and sometimes I don’t, it depends on my review of the quality of the arrest and some of the circumstances surrounding it before I actually use it as an enhancing factor despite the strong language that I use at the time that I accept the plea and condition it on another arrest.
"However, in this case not only was the defendant arrested but he was subsequently indicted so that there is an additional filter for the quality of the arrest, and not only was he arrested and not only was he indicted, but he was arrested and indicted for things that he does professionally, burglary.”

The court denied defendant’s application to withdraw the four guilty pleas and then pronounced consecutive sentences for the crimes such that the minimum term was 10 years and the maximum 20.

On appeal, the Appellate Division, with two Justices dissenting in part, affirmed (see, People v Maietta, 173 AD2d 17). The Court expressly rejected the view of the dissenters that where a defendant denies committing the alleged postplea crime or participating in the acts which lead to the arrest, "it is incumbent upon the sentencing court to conduct a hearing to resolve the disputed factual contentions” (id., at 27). The case is before us by leave of a Justice of the Appellate Division.

People v Ogtong

By a plea of guilty on March 6, 1991, defendant was convicted of criminal possession of a weapon in the third degree. In accepting the plea, the court, as part of the plea agreement, stipulated that it would sentence defendant to five years’ probation. Before adjourning the matter until the sentencing date, the court admonished defendant as follows:

"you are getting probation here. I will allow you to remain at liberty pending your sentence under the following conditions, that * * * You do not get arrested between now and the time of sentence.
You will fully cooperate with the Department of Probation and you show up on the date of the sentence.
"If you violate any of the above conditions, the Court will not be bound by the promise to you and [may] sentence you to whatever sentence [it feels] is justified. Do you understand that?
"the defendant jóse ogtong: Yes * * *
"the court: You agree to the terms?
"the defendant jóse ogtong: Yes * * *
"the court: You know that you will not be allowed to take back your plea?
"the defendant jóse ogtong: Yes.”

On May 22, the date of sentence, the prosecuting attorney advised the court that defendant had been arrested for criminal possession of a controlled substance in the seventh degree. Defense counsel — while acknowledging that defendant had been arrested on March 6, the same day as the guilty plea— argued that his client had not violated the condition of the plea bargain. He explained that after pleading guilty defendant had gone directly to visit his probation officer. When he went through a metal detector a tin was discovered in his pocket which contained a small quantity of cocaine.

Counsel maintained that it was only .4 grains of cocaine, a residue amount which had simply been in defendant’s pocket from a previous occasion. It was a technical violation, he argued, which did not arise from any conduct of defendant following his guilty plea and evidenced no intention on his part to violate the court’s no-arrest condition. In reply, the Assistant District Attorney produced a copy of a lab report which showed that defendant had been in possession of two quantities of cocaine — .4 grains in a tinfoil packet and 11 grains contained in a paper packet.

The court denied defense counsel’s request for an evidentiary hearing on the circumstances of the March 6 arrest and sentenced defendant to prison for a minimum of 114 years and a maximum of plus a mandatory surcharge of $152. The Appellate Division affirmed unanimously in a memorandum stating, "before it imposed the enhanced sentence, the court afforded the defendant the opportunity to explain his arrest. After finding the explanation insufficient the court properly imposed the more severe sentence” (People v Ogtong, 185 AD2d 253). The appeal is here by leave of a Judge of this Court.

Discussion

Our discussion starts with a reiteration of the settled rules that sentencing is a critical stage of the criminal proceeding and that "the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause” (Gardner v Florida, 430 US 349, 358). To comply with due process, it has been held, the sentencing court must assure itself that the information upon which it bases the sentence is reliable and accurate (see, Mempa v Rhay, 389 US 128, 133; Townsend v Burke, 334 US 736, 741; United States v Lee, 818 F2d 1052, 1055 [2d Cir 1987]). The question before us concerns the minimum requirements of due process when, as in these appeals, the defendant has breached a no-arrest condition by being arrested before the sentence but denies any complicity in the underlying crime.

Defendants argue that when a defendant denies the post-plea criminal conduct, the court must conduct an evidentiary hearing to satisfy itself by a preponderance of the evidence that the defendant has, in fact, committed the crime for which he was arrested. Nothing in the decisions of our State courts or of the Federal courts calls for such an onerous rule and we decline to adopt it. Imposing such a requirement would have the effect of changing the condition of the plea bargain from not being arrested for a crime to not actually committing a crime. Defendants do not attack the legality of attaching a no-arrest condition to a plea bargain and, indeed, the procedure has been approved in this State and in courts of other jurisdictions (see, People v Murello, 39 NY2d 879; People v Faulkner, 182 AD2d 1025, lv dismissed 80 NY2d 830; People v Banks, 161 AD2d 957, 957-958; People v Harrison, 161 AD2d 550; People v Kihm, 143 AD2d 199; Innes v Dalsheim, 680 F Supp 517 [ED NY 1988], revd on other grounds 864 F2d 974). We agree with the Appellate Division in Maietta, that the proposed evidentiary hearing rule, if adopted, would have the undesirable consequence of requiring, in effect, “a minitrial” of the defendant’s guilt or innocence on the new charge (see, Maietta, supra, at 24).

If, as we hold, proof that defendant actually committed the postplea offense which led to the arrest is not necessary, what lesser showing does due process require in order for the court to impose the enhanced sentence? Obviously, the mere fact of the arrest, without more, is not enough. A no-arrest condition could certainly not be held to have been breached by arrests which are malicious or merely baseless (see, Innes, supra, at 519). When an issue is raised concerning the validity of the postplea charge or there is a denial of any involvement in the underlying crime, the court must conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation (see, Banks, supra, at 958 [sentencing court should not have summarily dismissed defendant’s plausible, exculpatory explanation of postplea arrest]). The nature and extent of the inquiry — whether through a summary hearing pursuant to GPL 400.10 or some other fair means — is within the court’s discretion (id.). The inquiry must be of sufficient depth, however, so that the court can be satisfied — not of defendant’s guilt of the new criminal charge but of the existence of a legitimate basis for the arrest on that charge.

In each case before us, the inquiry conducted was sufficient so that the sentencing court could be satisfied that there was a legitimate basis for the arrest. In Outley, defendant had concededly violated the orders of two different courts commanding that he stay away from his wife and child. Defendant and his counsel were permitted to explain the circumstances of the visit to his home in an effort to demonstrate that defendant had no intent to defy the courts’ authority. We cannot say, however, that the sentencing court and the Appellate Term erred in holding, from the fact that defendant’s wife had signed the complaining affidavit, that there was a legitimate foundation for the contempt charge.

Similarly, in Maietta, the record establishes a solid factual and legal basis for the postplea arrest for burglary. As noted by the sentencing court and the Appellate Division, the fact that a Westchester County Grand Jury had found a prima facie case for the charge by returning an indictment against defendant constituted an " 'additional filter for the quality of the arrest’ ” (Maietta, supra, at 21). The jeep involved in the burglary was concededly owned by the defendant and a policeman identified him as the driver of the vehicle when it left the scene. Given this evidence and the plainly suspect nature of the statement given by defendant’s witness, Salveggi, it can hardly be said that there was not enough in the record on which to predicate a breach of the condition.

We also find the record sufficient to establish a breach of the no-arrest condition in Ogtong. As in Outley, defendant’s argument was not that he had not committed the act for which he was arrested (possession of some amount of cocaine) but that his possession was unknowing and did not evince an intent to violate the court’s condition. The sentencing court afforded defendant an adequate opportunity to explain the circumstances of the arrest. We cannot conclude that the courts below erred in finding the explanation insufficient (see, Ogtong, supra, at 712).

In sum, in each of these cases, the defendant’s agreement to the no-arrest term as a condition of the plea bargain and the postplea release from custody was unequivocal and the sentencing court did not abuse its discretion in imposing the enhanced sentence. Accordingly, the order in each appeal should be affirmed.

Acting Chief Judge Simons and Judges Titone, Bellacosa and Weiss concur; Judges Kaye and Smith taking no part.

In each case: Order affirmed.

       Designated pursuant to NY Constitution, article VI, § 2.


source: Caselaw Access Project

author: Acting Chief Judge Simons.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Martin Galak, Appellant.
    Argued January 5,1993;
    decided February 16, 1993

      POINTS OF COUNSEL

      Mahler & Harris, P. C., Kew Gardens (Stephen R. Mahler of counsel), for appellant.
    The procedure followed by the police in conducting a warrantless search of defendant’s vehicle violated his Federal and State constitutional rights in that it did not qualify as an "inventory search” entitled to legal sanction. (People v Pettinato, 69 NY2d 653; People v Knapp, 52 NY2d 689; People v Calhoun, 49 NY2d 398; People v Hodge, 44 NY2d 553; People v Ballard, 174 AD2d 1025; People v Gonzalez, 62 NY2d 386; Florida v Wells, 495 US 1; South Dakota v Opperman, 428 US 364; Colorado v Bertine, 479 US 367.)

      Denis Dillon, District Attorney of Nassau County, Mineola (Lawrence J Schwarz and Peter A. Weinstein of counsel), for respondent.
    Defendant had no standing to contest the inventory search. In any event, the police conducted a valid inventory search. (Florida v Wells, 495 US 1; Colorado v Bertine, 479 US 367; People v Ponder, 54 NY2d 160; United States v Salvucci, 448 US 83; People v Wesley, 73 NY2d 351; People v Rodriguez, 69 NY2d 159; People v Cofresi, 60 NY2d 728; People v Gonzalez, 62 NY2d 386; People v D’Abate, 37 NY2d 922; People v Sullivan, 29 NY2d 69.)
   OPINION OF THE COURT

Acting Chief Judge Simons.

Defendant has been convicted of several criminal possession charges based upon incriminating evidence found during an inventory search of a car in which he was a passenger. He contends that the search was unlawful under both the Federal and State Constitutions (US Const 4th Amend; NY Const, art I, § 12). Defendant recognizes that law enforcement officers may conduct an inventory search of an impounded automobile without a warrant, provided the search is conducted according to a " 'single familiar standard’ ” or procedure established by the police agency (Colorado v Bertine, 479 US 367, 375; see also, Illinois v Lafayette, 462 US 640, 648; People v Gonzalez, 62 NY2d 386, 390), and that the courts below found the police department had an established procedure here. He contends, however, that the department’s policy is so unrelated to the governmental interests it is intended to promote and so lacking in appropriate safeguards against police abuse that it does not survive constitutional scrutiny. We agree. The police department policy governing the search failed to generate a meaningful inventory of the vehicle’s contents and allowed the officer conducting the search undue discretion. It, therefore, violated both the State and Federal Constitutions (see, People v Gonzalez, 62 NY2d 386, 389-390, supra [stating the general rule of consistency in applying the two constitutional clauses]).

I

On the night of August 5, 1990, Officer William Straub of the Lynbrook Police Department noticed a car with two occupants parked near a closed automobile dealership. A check of the license plate number indicated that the plates were from another vehicle and that the registration had expired more than a year earlier. Additional officers were called, and both the driver and her passenger, defendant Galak, were questioned by Officer Straub. Discovering that neither had a valid driver’s license, the officer placed the driver under arrest and impounded the vehicle.

Officer Straub then searched the car and found a dagger, a blackjack and an ignition device in the passenger compartment. Defendant admitted owning them and was subsequently charged with two counts of criminal possession of a weapon in the third degree, one count of the sale or possession of master or manipulative keys for motor vehicles and one count of possession of burglar tools. The car was driven back to police headquarters by one of the other officers and some five hours later, at the station, Officer Straub filled out the inventory report.

Following a suppression hearing, County Court ruled that the search was reasonable and the items found in the car admissible evidence. Defendant thereafter pleaded guilty and appealed to the Appellate Division, and it affirmed the judgment of conviction.

Both courts below determined that the inventory search by Officer Straub was conducted pursuant to a standard departmental procedure and, inasmuch as there is support in the record for that factual finding, this Court is bound by it (see, NY Const, art VI, § 3 [a]; see, e.g., People v Brooks, 65 NY2d 1021; People v Calhoun, 49 NY2d 398, 405). But a determination that a standard procedure existed and that Officer Straub followed it does not end our inquiry, for the standard procedure itself must conform to constitutional dictates (Florida v Wells, 495 US 1, 4). A departmental procedure, like the conduct of the searching officer, is judged by a standard of reasonableness, and it is self-evident that an unreasonable search is not somehow rendered reasonable, and therefore constitutionally permissible, by the mere fact that a departmental procedure was followed.

II

The analysis of what constitutes a reasonable inventory search begins with the language of the Fourth Amendment, which protects citizens not from all searches by governmental actors but only from those that are "unreasonable”. In its modern Fourth Amendment jurisprudence, the Supreme Court has held that the reasonableness of a search is calculated by weighing the governmental and societal interests advanced by the search against the individual’s right to be free from arbitrary interference by law enforcement officers (United States v Brignoni-Ponce, 422 US 873, 878; see also, South Dakota v Opperman, 428 US 364, 378 [Powell, J., concurring]; Colorado v Bertine, 479 US 367, 372, supra).

Three specific objectives are advanced by inventory searches: protecting an owner’s property while it is in the custody of the police; insuring police against claims of lost, stolen, or vandalized property; and guarding police and others from dangerous instrumentalities that would otherwise go undetected (Colorado v Bertine, supra, at 372; Illinois v Lafayette, 462 US 640, 646, supra). Against these governmental interests is weighed the individual’s expectation of privacy and, more particularly, the risk that the search will exceed the scope of its purposes and intrude without justification on the privacy interests of citizens (Florida v Wells, 495 US 1, 4, supra; South Dakota v Opperman, 428 US 364, 379-380, supra [Powell, J., concurring]).

Although a warrant based on probable cause is not required (Colorado v Bertine, supra, at 371), courts have insisted that an inventory search be conducted according to a familiar routine procedure (id., at 375) and that the procedure meet two standards of reasonableness. First, the procedure must be rationally designed to meet the objectives that justify the search in the first place (Florida v Wells, supra, at 4). Second, the procedure must limit the discretion of the officer in the field (id.). In the absence of a warrant from a neutral and detached Magistrate, it is an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably and do not become little more than an excuse for general rummaging to discover incriminating evidence. The Supreme Court has underscored both the risk posed and the safeguard required: "We reaffirm these principles here: ' "[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront” ’ ” (Colorado v Bertine, 479 US 367, 375, supra, quoting Illinois v Lafayette, 462 US 640, 648, supra; New York v Belton, 453 US 454, 458). While a certain latitude may be extended to the officers in the field for the "exercise of judgment based on concerns related to the purpose” of the search, the power to grant and define such latitude remains the province of departmental policy makers (Florida v Wells, 495 US 1, 4, supra).

Thus, two elements must be examined: first, the relationship between the search procedure adopted and the governmental objectives that justify the intrusion and, second, the adequacy of the controls on the officer’s discretion. The procedure followed by the police in this case fails to meet constitutional standards in both respects.

III

Officer Straub testified at the suppression hearing that he did not know of any written regulations for inventory searches by the Lynbrook police. Asked how he was instructed on conducting an inventory search, he responded, "Training officers, on-the-job training, supervisor.” Later the following exchange occurred between him and defense counsel:

"Q. What is your — do you have particular standard instructions?
"A. Instructions? No, we don’t have instructions.
"Q. Nothing written anywhere?
"A. Not that I recall.
"Q. They leave it to your judgment on the scene?
"A. That’s correct.”

The officer’s testimony further established the departmental procedure he followed when searching the car the night defendant was arrested. No inventory report of any sort was made at the time of the search. Although the department had a standard inventory form to be filled out, it was not used during the search and was not filled out by the officer until some five hours later after he returned to headquarters. The officer testified that the department’s procedure required that he take into police custody certain items and return others to the owners. Asked to describe the standards for determining what items were returned, he said: "It depends. Like I said, if —some kinds of contraband or weapons, we voucher that. If there is money or valuables, the defendant will usually take them. If there is a radio to be removed, they can take it” (emphasis added). The police procedure did not require a complete inventory of personal property in the vehicle. Although the official form contained a checklist to catalog the car’s equipment and a section for reporting any damage found on the vehicle, it directed the officers to list only those items retained by the police. When completed, a copy of the form was provided to defendant but it does not indicate whether items were left in the car or returned to him or the driver. Neither the driver nor the passenger was asked to sign a receipt for any items delivered to them.

Simply put, this procedure does not do what it must do: Create a usable inventory. An inventory search is justified by the fact that a detailed and carefully recorded inventory protects the seized property while it is in police hands and insures against claims of loss, theft or vandalism. Five hours elapsed between the search and the listing of the property vouchered here and no record was kept of what property, if any,: was left in the car or returned to defendant and his companion. It is obvious that a list made so long after the search which does not indicate the disposition of each item removed is of little use either to the police or to citizens who find themselves disputing the whereabouts of an item or the accuracy of the record. Manifestly, the procedure was so unrelated to the underlying justification for inventory searches that we have no difficulty finding it to be arbitrary and irrational, and the search it generated unreasonable.

The procedure is also flawed by the impermissible level of discretion given to the searching officer, as evidenced by Straub’s testimony. The People acknowledge that the discretion is broad, but they read Colorado v Bertine and Florida v Wells as limiting only the discretion exercised in determining the scope of a search. They view the discretion vested in the Lynbrook police officers as involving decisions only after completing the search, decisions about whether to retain property in the car, leave it there or deliver it to the owner. They contend no legitimate privacy interest is impaired by that conduct.

The People’s attempt to distinguish between kinds of discretion misapprehends what it is that makes discretion in the field objectionable under our Constitutions. By imposing limits on both search and seizure, the Fourth Amendment, like its State counterpart, is intended to keep citizens "free from arbitrary interference” by government officials (United States v Brignoni-Ponce, 422 US 873, 878, supra [emphasis added]; South Dakota v Opperman, 428 US 364, 377, supra [Powell, J., concurring]). When the warrant requirement is interposed, it is the Magistrate’s judgment that controls. A properly drawn inventory procedure may accomplish much the same purpose. But when "uncanalized discretion” is ceded to those in the field, there is created not just the possibility but the probability that the search and seizure of a citizen’s personal effects will be conducted inconsistently, subject to caprice and the personal preferences of the individual officers — in short, it will be conducted arbitrarily (see, LaFave, Controlling Discretion by Administrative Regulations: The Use, Misuse, and Nonuse of Police Rules and Policies in Fourth Amendment Adjudication, 89 Mich L Rev 442, 459). Arbitrary decision-making about what to seize, no less than arbitrary decision-making about what to search, creates unacceptable risks of unreasonableness in an inventory search policy.

We do not attempt today to set forth rules precisely demarcating what would qualify as timely completion of an inventory search (see, Illinois v Lafayette, 462 US 640, 646, supra) or when unwritten inventory policies will be constitutionally permissible (see, e.g., United States v Skillern, 947 F2d 1268; United States v Frank, 864 F2d 992). But whatever flexibility the police may have in setting an inventory policy, it was certainly exceeded here, and the search was invalid under both the State and Federal Constitutions.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress granted, and the indictment dismissed.

Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order reversed, etc.

       The People argue on appeal that defendant, as a passenger in the car, had no expectation of privacy in the vehicle and therefore lacked standing to challenge the search (People v Ponder, 54 NY2d 160). The suppression court ruled that defendant had standing under People v Millan (69 NY2d 514) and People v Wesley (73 NY2d 351, 360), which held that an automobile passenger who was otherwise a stranger to the vehicle had automatic standing when the statutory presumption of Penal Law § 265.15 (presence of weapon in vehicle creates presumption of ownership by all occupants) applied. The People now make a factual argument, not made below, that defendant was charged with actual possession, not constructive possession, and that they did not intend to rely on Penal Law § 265.15. Inasmuch as the People accepted the court’s ruling on standing and defendant’s plea of guilty thereafter without making that election, we do not address their standing argument on appeal.


author: Smith, J.

text:
    The People of the State of New York, Respondent, v William Griffin, Appellant.
    Argued January 7,1993;
    decided February 16, 1993
    POINTS OF COUNSEL

      Ivan S. Fisher, New York City, Alan Scribner and Kenneth M. Tuccillo for appellant.
    I. Defendant was denied a fair trial on the issue of causation because the court excluded defense medical opinion on the cause of death while admitting contrary prosecution medical opinion on the same issue. (People v Eulo, 63 NY2d 341; People v Kohlmeyer, 284 NY 366; People v Brengard, 265 NY 100; People v Kane, 213 NY 260; People v Stewart, 40 NY2d 692; People v Dickerson, 171 AD2d 422; People v Cable, 63 NY2d 270.) II. The court’s charge on the issues of causation and gross negligence was erroneous. (People v Brengard, 265 NY 100; People v Stewart, 40 NY2d 692; People v Eulo, 63 NY2d 341; People v Le Mieux, 51 NY2d 981; People v Hoke, 62 NY2d 1022; People v Ahmed, 66 NY2d 307; People v Patterson, 39 NY2d 288.)

      Howard R. Relin, District Attorney of Monroe County, Rochester (Robert Mastrocola of counsel), for respondent.
    I. Under the circumstances, the trial court did not commit reversible error in precluding testimony of one of defendant’s expert witnesses. (Matter of Anthony M., 63 NY2d 270; People v Stewart, 40 NY2d 692; People v Kane, 213 NY 260; People v McCart, 157 AD2d 194, 76 NY2d 861; People v Paris, 159 AD2d 733; People v Verdile, 119 AD2d 891; People v Kehn, 109 AD2d 912, 65 NY2d 696; People v Eulo, 63 NY2d 341; People v Griffin, 173 AD2d 120.) II. The trial court did not err in denying defendant’s requests to charge on the issue of causation. (People v Hoke, 62 NY2d 1022; People v Leisner, 73 NY2d 140; People v Chin, 67 NY2d 22; People v Thomas, 50 NY2d 467; People v Dory, 59 NY2d 121; People v Kern, 75 NY2d 638; People v Warner-Lambert Co., 51 NY2d 295, 450 US 1031; People v Kibbe, 35 NY2d 407; People v Galle, 77 NY2d 953.)
   OPINION OF THE COURT

Smith, J.

The primary issue on this appeal is whether the court erred in precluding expert testimony that medical malpractice was the supervening cause of the victim’s death. We conclude that no prejudicial error was committed and that the conviction should not be overturned.

On Sunday, January 18, 1987, the defendant, then a freshman in engineering at the University of Rochester, returned to the campus after a vacation as did other students. During the course of the evening, he drank heavily and, at the time of the criminal incidents, he was under the influence of alcohol. At some point during the evening, the defendant, who was over six-feet tall and weighed more than 200 pounds, drew a knife and stabbed three people before he was subdued by the campus security personnel. Two of the persons survived although they received cuts which required stitching. One, Gary Kramer, received wounds to his stomach, buttocks and hand. The other, Rana Mattreja, received wounds to his stomach. The third person, Darrell Tornay, died about a month after he was stabbed.

It was the defendant’s contention that Tornay’s death was caused not by the stab wound but by medical malpractice in the treatment of the wound. Much of the evidence at the trial consisted of medical testimony. Tornay had received a single stab wound to his abdomen, located in the upper right quadrant below the rib cage but above the belly button. An exploratory operation (laparotomy) was performed by Dr. Jerry Svoboda. He testified that he found, among other things, that the front and back of the intestine and a blood vessel had been cut. He did not, however, perform a Kocher maneuver, a procedure by which organs behind the abdominal cavity are brought out of that area so they can be examined. Because this was not done, a two-millimeter hole in the duodenum was not found. In the weeks following the January 19 operation, Tornay improved slowly. At times, however, there were signs of an infection including a fever. Nevertheless, on the morning of January 31, he was released. That evening Tornay became ill and vomited. He vomited several more times in the next few days and was returned to the hospital on February 2. Over the course of the next two weeks, he was treated for an infection. On February 19, a second operation was performed during which the wound to the duodenum was discovered. During and immediately following the second operation, Tor-nay experienced increasing difficulty and he died around 11:45 p.m. on February 19.

The medical examiner, Dr. Lorraine Roth-Mayo, stated that the cause of death was heart failure caused by pulmonary edema. Dr. Roth-Mayo also testified that the death was related to the stab wound and related to infections resulting from the stab wound.

Dr. Cyril Wecht, a defense expert, gave some testimony in the presence of the jury and was also questioned outside of the jury’s presence. Subsequently, all of his testimony was stricken and the jury instructed to disregard it. In the presence of the jury the doctor testified that the cause of death was Adult Respiratory Distress Syndrome (ARDS), a condition in which the lungs fill with fluid and do not function properly so that oxygen does not get to the brain and heart. The ARDS was produced by an infection in the blood stream or sepsis and a reaction to a drug given to combat the infection, Cefizox. Outside of the jury’s presence, Dr. Wecht stated that the wound to the duodenum should have been discovered and that the failure to give Tornay adequate care was a supervening cause of death.

A second expert witness for the defense was Dr. William Stahl. He testified at length about the failure to adequately treat Tornay. According to his testimony the acts of negligence included failure to undertake the Kocher procedure, the release of Tornay from the hospital on January 31, failure to give appropriate tests, failure to replace a drainage tube which had fallen out and failure to perform the second operation prior to February 19. In responding to a question as to what had happened during the second operation, Dr. Stahl testified that at the close of the operation and after being moved to the recovery room, Tornay was "in severe pulmonary edema.” In partial response as to the meaning of pulmonary edema, the doctor stated the following:

"And, in fact, he died because of the inability to ventilate him. He died of asphyxia of oxygen lack because the pulmonary edema could not be overcome even with all the treatments that were done.”

Objections were then made and sustained to several questions dealing with the cause of death.

It is the defendant’s claim that the preclusion of the testimony of Dr. Wecht and the limitation of the testimony of Dr. Stahl were prejudicial and require a new trial. The People contend that no reversible error was committed.

The legal standard of causation applicable here was set forth in People v Kane (213 NY 260). There, this Court held that even though improper medical assistance may have contributed to a death, a defendant whose assault had also been a cause of the death could be held criminally liable. In that case, a pregnant woman was shot twice by the defendant. As the result, she suffered a miscarriage following which septic peritonitis set in. On appeal from defendant’s murder conviction, this Court stated that where the improper medical treatment was the sole cause of death, a defendant would not be liable for murder:

"If a felonious assault is operative as a cause of death, the causal co-operation of erroneous surgical or medical treatment does not relieve the assailant from liability for the homicide. It is only where the death is solely attributable to the secondary agency, and not at all induced by the primary one, that its intervention constitutes a defense” (213 NY, at 270).

The standard announced in People v Kane was applied more recently in People v Stewart (40 NY2d 692). In Stewart, this Court reduced a manslaughter conviction to assault in the first degree when the evidence did not clearly establish a knife wound as the cause of death. In fact, the knife wound to the abdomen had been surgically repaired when the doctors noticed "an incarcerated hernia.” During the attempt to correct the hernia, the patient went into cardiac arrest and he died a month later. There was expert testimony that the patient would have survived the knife wound if the hernia operation had not been attempted.

Defendant’s reliance on People v Eulo (63 NY2d 341) is misplaced. In Eulo, this Court affirmed the separate convictions of two men for manslaughter in the first degree. In both cases, vital organs had been removed from the patients after a cessation of brain function but before the heart had stopped beating. The legal issue was not the cause of death but "what constitutes a person’s death, the time at which criminal liability for a homicide would attach” (People v Eulo, supra, at 348). The defendants contended that death had not occurred when the organs were removed and that death was due to the negligence of the doctors. This Court rejected the argument and held that "brain-based criteria” could be used to define death (People v Eulo, supra, at 355).

Contrary to the contentions of the defendant herein, Eulo did not change the standard enunciated in Kane (supra). As the Appellate Division in this case correctly perceived, dictum in Eulo which defendant urges should be construed as establishing a negligence/gross negligence dichotomy on the issue of causation (see, People v Eulo, supra, at 359) was not intended to alter the Kane rule. Indeed, the passage defendant relies upon cites Kane with approval, and our decision in Matter of Anthony M. (63 NY2d 270, 280), decided the same day as Eulo, makes evident the continuing vitality of Kane. The test for relief from criminal responsibility for a death applicable to the facts of this case remains whether the death can be attributed solely to the negligent medical treatment.

Consequently, while it may have been error to exclude all of the testimony of Dr. Wecht, under the applicable legal standards no showing of prejudice was made.

We have considered the defendant’s other points and find them to be without merit.

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

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Michael Brown, Also Known as Michael Lewis, Also Known as William Brown, Appellant.
    Argued January 13, 1993;
    decided February 18, 1993

      POINTS OF COUNSEL

      Proskauer Rose Goetz & Mendelsohn, New York City (Michael A. Freeman of counsel), and Philip L. Weinstein, New York City, William E. Hellerstein and Andrew C. Fine for appellant.
    The lower courts erred in finding that a tape recording of an anonymous telephone call to the 911 emergency number purporting to describe the crime scene and the perpetrators was admissible under a present sense impression exception to the hearsay rule. (People v Marks, 6 NY2d 67, 362 US 912; In re Japanese Elec. Prods., 723 F2d 238; United States v Blakey, 607 F2d 779; People v Watson, 100 AD2d 452; Robinson v Shapiro, 484 F Supp 91; MCA, Inc. v Wilson, 425 F Supp 443, 677 F2d 180; Ohio v Roberts, 448 US 56; People v Sanders, 56 NY2d 51; People v Crimmins, 36 NY2d 230; Fahy v Connecticut, 375 US 85.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Robert L. Moore and Peter D. Coddington of counsel), for respondent.
    I. Appellant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. II. The trial court correctly admitted into evidence an anonymously made tape-recorded 911 telephone call which contemporaneously described events that were verified immediately thereafter by the responding police officers. (People v Caviness, 38 NY2d 227; People v Del Vermo, 192 NY 470; Loschiavo v Port Auth., 86 AD2d 624, 58 NY2d 1040; People v Watson, 109 Misc 2d 71, 100 AD2d 452; People v Crampton, 107 AD2d 998; People v Luke, 136 Misc 2d 733, 147 AD2d 990; People v Nalty, 141 Misc 2d 90; People v Selassie, 140 Misc 2d 616; People v Nieves, 67 NY2d 125.)
   OPINION OF THE COURT

Hancock, Jr., J.

In defendant’s trial on burglary and other charges, recordings of two 911 transmissions describing the events in progress were received in evidence against him. His appeal presents a question of first impression in our Court: whether such evidence may properly be admitted under the present sense impression exception to the hearsay rule. For reasons to be explained, we hold that the present sense impression exception is the law in this State and that it was properly applied by the courts below in holding the evidence admissible. Accordingly, the order should be affirmed.

I

Defendant was indicted, tried and convicted after a jury trial for third degree burglary and other crimes in connection with a break-in at a restaurant in the Bronx. The trial evidence, as summarized by Supreme Court in denying defendant’s motion to set aside the jury verdict (People v Brown, 148 Misc 2d 70), was that at about 6:00 a.m. on July 12, 1987, the police received a 911 call reporting a burglary in progress. The caller, who identified himself as "Henry”, said that he was observing the break-in from his apartment across the street. He described the perpetrators as "one male black and one male white, wearing a blue t-shirt” (id., at 71). The police, responding to the reported burglary approximately three minutes after the initial 911 transmission, observed two persons run out of the restaurant through a broken glass door and climb up on the roof. One of the officers apprehended a "male black, later identified as defendant, Michael Brown, hiding underneath an air-conditioning duct located on the roof’ (id., at 71-72).

Police communications received another 911 call from "Henry” reporting "that one man had been caught but 'the white guy [was still] on the roof ” and "that police backup was needed to catch him” (id., at 72). The other suspect, a white male, was found on the roof and arrested. He was wearing a blue t-shirt.

Over defendant’s objection, the tape recordings of the 911 transmissions were received in evidence and played for the jury. It was stipulated that the name and telephone number given by the 911 caller in the transmissions were not correct. After the jury verdict convicting defendant of burglary in third degree, criminal mischief in the third degree and resisting arrest, Supreme Court denied defendant’s motion to set aside the verdict.

In its written decision (People v Brown, 148 Misc 2d 70, supra), Supreme Court concluded that the present sense impression exception was applicable in New York and that the 911 recordings were admissible inasmuch as they were contemporaneous reports of events then being observed by the caller. It also held that corroboration was not a prerequisite for admission but that the testimony of the police officers who arrived on the scene shortly after the first transmission furnished corroboration, in any event. The court did not find it a bar to admission that the declarant was not identified by name or a participant in events observed.

The Appellate Division affirmed unanimously, citing People v Luke (136 Misc 2d 733, affd 147 AD2d 990) and holding that the recordings were properly admitted since "the reliability of the present sense impression, evidenced by the '911’ tape recording, was confirmed by the eyewitness observations of police officers, who arrived at the crime scene within moments of the first '911’ call” (People v Brown, 179 AD2d 485, 486). A Judge of this Court granted leave to appeal.

II

As generally stated, the present sense impression exception permits a court to admit hearsay testimony of a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter (see, e.g., Fed Rules Evid, rule 803 [1]; Proposed NY Code of Evidence § 804 [b] [1] [1982]). The theory of the exception is that a statement describing an event when or immediately after it occurs is reliable because the contemporaneity of the event observed and the hearsay statement describing it leaves no time for reflection. Thus, the likelihood of deliberate misrepresentation or faulty recollection is eliminated (see, Comment of NY Law Rev Commn, reprinted in Proposed NY Code of Evidence § 804, at 211-212 [1982]; 4 Weinstein and Berger, Weinstein’s Evidence, ¶ 803 [1] [01]). Moreover, such statements are often made under circumstances where some witness has an opportunity to observe and verify all or part of the event described (see, Comment of NY Law Rev Commn, op. cit., at 211-212 [1982]; 4 Weinstein and Berger, op. cit, ¶ 803 [1] [01]).

"[T]here is no intent to preclude judicial development of the present sense impression exception under this section if the judiciary deems it desirable to do so. See People v. Watson, 100 A.D.2d 452, 474 N.Y.S.2d 978 (2d Dept 1984); People v. Luke, 136 Misc. 2d 733, 519 N.Y.S.2d 316 (Sup. Ct., Bx. Co. 1987). A statement of present sense impression is not admissible under the excited utterance exception because that statement is not a spontaneous and unreflective response to a startling event. See People v Brown, 70 N.Y.2d 513, 519, 522 N.Y.S.2d 837, 840 (1987). However, there may be other reasons why present sense impression, as a category, would be as trustworthy as an excited utterance. Thus, the failure to satisfy the requirements for excited utterance does not mean that a present sense impression has been determined unreliable.”

Our Court has not adopted the exception and, until the opinions of the courts below in this case, only three New York courts have discussed the issue in reported decisions (see, People v Watson, 100 AD2d 452; People v Luke, supra; People v Jardin, 154 Misc 2d 172). The rule, however, has been accepted in some form by the majority of States and has now been widely approved by legal commentators (see, e.g., 4 Weinstein and Berger, op. cit, ¶ 803 [1] [01]; Waltz, The Present Sense Impression Exception to the Rule Against Hearsay: Origins and Attributes, 66 Iowa L Rev 869 [1981]; Wohlsen, The Present Sense Impression Exception to the Hearsay Rule: Federal Rule of Evidence 803 (1), 81 Dick L Rev 347 [1977]; Richardson, Evidence § 285-A, at 125-126 [Prince 10th ed, 1972-1985 Cum Supp]; McCormick, Evidence § 298, at 860 [3d ed]). A notable exception to this general acceptance by legal scholars is the contrary view of Dean Wigmore (see, 6 Wigmore, Evidence § 1757, at 236-240 [Chadbourn rev ed 1976]). Dean Wigmore, a proponent of the excited utterance doctrine, opposed the present sense impression rule because, in his view, only a startling event would guarantee trustworthiness; spontaneity and contemporaneity of the declaration, without the shock or excitement from the event, are not sufficient (id., § 1757, at 238; see also, Wohlsen, op. cit., at 351). Defendant notes that this Court, in developing its excited utterance exception to the hearsay rule, has accepted Dean Wigmore’s analysis (see, e.g., People v Brown, 70 NY2d 513, 518; People v Marks, 6 NY2d 67, 71-72). He argues, therefore, that to be consistent we should follow Wigmore in rejecting the present sense impression exception upon the ground that spontaneity and contemporaneity, without stress of nervous excitement, do not produce the requisite reliability (see, People v Marks, supra, at 71-72).

The argument is not persuasive. Simply because we have adhered to Dean Wigmore’s analysis of the excited utterance exception does not mean that we must endorse his views on other matters. We agree with Professor McCormick and other commentators that shock and excitement from a sudden occurrence should not be the only criteria of admissibility and that a present sense impression exception rule may be devised with sufficient safeguards to assure reliability (see, McCormick, op. cit., § 298, at 860; Wohlsen, op. cit., at 351; Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale LJ 229, 236 [1922]). Accordingly, we hold that spontaneous descriptions of events made substantially contemporaneously with the observations are admissible if the descriptions are sufficiently corroborated by other evidence. Further, such statements may be admitted even though the declarant is not a participant in the events and is an unidentified bystander (see, 4 Weinstein and Berger, op. cit., ¶ 803 [1] [01], at 803-77).

The remaining questions concern the nature and extent of the corroboration required to assure reliability. To be sure, some textual versions of the present sense impression exception rule require no corroboration at all (see, e.g., Fed Rules Evid, rule 803 [1]; Proposed NY Code of Evidence § 804 [b] [1] [1982] ; Model Code of Evidence, rule 512 [a] [1942]; State v Flesher, 286 NW2d 215, 218 [Iowa 1979] [holding that corroboration, or the lack of it, will affect the weight given to the declaration but not its admissibility]). The proponents of this view maintain that the exception itself "offers sufficient assurances of reliability without the superaddition of a further requirement of corroboration” (McCormick, op. cit, § 298, at 862).

Defendant argues that if we are to adopt the present sense impression exception in any form it must be with the strictest corroboration rule — i.e., requiring corroboration at trial by an "equally percipient witness”, a witness at the scene who had an equal opportunity to perceive the event and who will be subject to cross-examination as to the accuracy of the declarant’s statement. This was the view, defendant notes, of Professor Thayer who was the original advocate of the exception and is currently embraced by some courts (see, e.g., State v Case, 100 NM 714, 676 P2d 241, 245 [1984]; Hewitt v Grand Trunk W. R. R., 123 Mich App 309, 333 NW2d 264, 267 [1983] ; see also, Waltz, op. cit., at 891-893). If corroboration by an "equally percipient witness” were required in this case, defendant properly points out, the 911 tape should not have been admitted. The police who testified to the conditions and events at the scene were not present when the calls were made and could not have observed the events at the precise moment that they were being described by the 911 caller.

Some courts have adopted a middle ground, rejecting the stringent "equally percipient witness” rule but requiring some corroboration (see, e.g., Commonwealth v Blackwell, 343 Pa Super 201, 494 A2d 426, 434-435 [1985] [victim’s statements to police over phone not within present sense exception because police unable to hear any corroborating noise in background]; Booth v State, 306 Md 313, 508 A2d 976, supra [1986] [noises heard by witness in background over telephone provided sufficient corroboration of contemporaneity of declarant’s statement]; cf., People v Watson, 100 AD2d 452, 464-466).

We decline to adopt the “equally percipient witness” limitation on the present sense impression exception rule as urged by defendant. Insisting that the declarant’s descriptions of the events must be corroborated in court by a witness who was present with the declarant and who observed the very same events would deprive the exception of most, if not all, of its usefulness. If such an eyewitness is available to testify to the events, there is certainly no pressing need for the hearsay testimony. And excluding the statement of the declarant in all cases when such eyewitness is not available may bar the fact finder from hearing relevant testimony that is perfectly reliable. Nor do we agree with defendant that, at a minimum, there must be a corroborating witness who — although not necessarily percipient of all that declarant observed — did at least simultaneously see or hear some aspect of it (see, e.g., Commonwealth v Coleman, 458 Pa 112, 326 A2d 387 [1974]). We see no reason why the contemporaneity of the declaration with the events as well as the accuracy of the declarant’s description cannot be corroborated by other means.

We do, however, decline to adopt the People’s argument that no corroboration should be required. The admission of a hearsay statement under any exception deprives the defendant of the right to test the accuracy and trustworthiness of the statement by cross-examination. The defendant’s only protection against the admission of fabricated testimony or unfounded rumor is that there be sufficient safeguards to assure the statement’s reliability (see, 5 Wigmore, op. cit., § 1422; Richardson, op. cit., § 206 [Prince 10th ed]). With the excited utterance exception, this assurance is found in the fact that the statement is made under the stress of nervous excitement from the event and before there has been time to contrive and misrepresent (see, People v Brown, 70 NY2d 513, 518, supra). We think that when statements are admitted under the present sense exception without the assurance of reliability that excitement affords, it is reasonable and prudent to require some additional indicia of reliability.

In this case, the testimony of the police officers who arrived at the restaurant shortly after the first call and who apprehended two suspects fitting the description of “one male black and one male white, wearing a blue t-shirt” given by the caller "Henry” was sufficient corroboration. The police observed what the 911 caller had described only moments before. The suspects were seen running out of the restaurant through the broken glass door and seeking refuge on the roof, lending credence to the report that there was a burglary in progress. That the circumstances and events at the scene were still very much as described by "Henry” corroborates what seems evident from the calls themselves — that "Henry’s” reports were spontaneous and made contemporaneously with the events described.

What corroboration is sufficient will depend on the particular circumstances of each case and must be left largely to the sound discretion of the trial court. But before present sense impression testimony is received there must be some evidence in addition to the statements themselves to assure the court that the statements sought to be admitted were made spontaneously and contemporaneously with the events described.

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

Acting Chief Judge Simons and Judges Titone, Bellacosa and Weiss concur; Judges Kaye and Smith taking no part.

Order affirmed.

      . The 1982 proposed New York rule is identical to the Federal rule except that under the New York rule the declarant must be unavailable as a witness. Although the 1991 draft of the Proposed NY Code omits the present sense exception, the comment under section 806 of the 1991 draft states:

      . Luke (supra) is the only case in which the court both discussed the present sense impression exception and admitted hearsay testimony under the rule. The Court in Watson (supra) also discussed the exception but did not admit the contested hearsay testimony. Other courts have cursorily mentioned the present sense exception, but have declined to admit evidence under the rule (see, People v Smith, 162 AD2d 736; Loschiavo v Port Auth., 86 AD2d 624, 625, affd on other grounds 58 NY2d 1040; People v Jardin, 154 Misc 2d 172; People v Nalty, 141 Misc 2d 90; People v Selassie, 140 Misc 2d 616; but see, People v Kern, 149 AD2d 187, 237-238 [error, if any, of trial court in admitting 911 tape under present sense exception was harmless]).

      . In 1986, at least 28 States had passed legislation codifying the present sense impression exception (see, Booth v State, 306 Md 313, 321, 508 A2d 976, 979 [1986]).

      . Thayer, Bedingfield’s Case — Declarations as a Part of the Res Gesta, 15 Am L Rev 71, 83-107 (1881).

      Designated pursuant to NY Constitution, article VI, § 2.


text:
    The People of the State of New York, Respondent, v Milton Bialostok, Appellant. The People of the State of New York, Respondent, v Lawrence Scocco, Appellant.
    Argued January 7, 1993;
    decided February 25, 1993

      POINTS OF COUNSEL

      Kartagener & Stavis, New York City (Steven R. Kartagener and Roger L. Stavis of counsel), for appellant in the first above-entitled action.
    I. All eavesdropping evidence should be suppressed because (a) the police, under the guise of hooking up two "pen registers”, actually installed and maintained for 18 days what were also fully operational eavesdropping devices on the target telephone lines without a court order; and (b) the later wiretap order was issued on the basis of information obtained through the use of unlawful "pen register” machines. (Smith v Maryland, 442 US 735; People v Guerra, 65 NY2d 60; People v Gallina, 66 NY2d 52; Berger v New York, 388 US 41; Katz v United States, 389 US 347; People v Liberatore, 79 NY2d 208; People v Schulz, 67 NY2d 144; People v Washington, 46 NY2d 116; People v Winograd, 68 NY2d 383; People v Basilicato, 64 NY2d 103.) II. Appellant was denied a fundamentally fair trial when over defense objection, the prosecution’s expert witness on bookmaking offenses was permitted to offer his opinion that appellant was the "boss” of the illegal gambling operation, and thus guilty of the crimes with which he was charged. (People v Ciaccio, 47 NY2d 431; People v Creasy, 236 NY 205; People v Taylor, 75 NY2d 277; People v Cronin, 60 NY2d 430; People v Montesano, 84 AD2d 369, 58 NY2d 736; People v Graydon, 43 AD2d 842; People v Grutz, 212 NY 72; People v Bajraktari, 154 AD2d 542; People v Abreu, 114 AD2d 853; People v Vincek, 75 AD2d 412.)

      Denis Dillon, District Attorney of Nassau County, Mineola (Douglas Noll and Bruce E. Whitney of counsel), for respondent in the first above-entitled action.
    I. The eavesdropping evidence was properly admitted; defendant has not preserved his claim that two pen register devices were actually "fully operational eavesdropping devices”. (People v Victor, 74 NY2d 874; People v Dawson, 50 NY2d 311; People v Jackson, 149 AD2d 532; People v Mayo, 136 AD2d 748; People v Ford, 69 NY2d 775; People v Dekle, 56 NY2d 835; People v Liccione, 50 NY2d 850; People v Gallina, 66 NY2d 52.) II. The testimony of expert witness Bradberry that defendant "was the boss of the operation” was proper. (People v Osuna, 65 NY2d 822; People v Rivera, 73 NY2d 941; People v Gomez, 67 NY2d 843; People v Liccione, 50 NY2d 850; People v Mayo, 136 AD2d 748; People v Creasy, 236 NY 205; People v Grutz, 212 NY 72; People v McCart, 157 AD2d 194; People v Fordone, 156 AD2d 952.)

      Cahn Wishod Wishod & Lamb, Melville (Scott M. Karson and Howard M. Miller of counsel), for appellant in the second above-entitled action.
    I. The prosecution failed to comply with the statutory requirement of CPL 700.50 (former [3]) regarding posttermination notice of eavesdropping, and all evidence derived from the eavesdropping warrant must be suppressed. (People v Liberatore, 79 NY2d 208; People v Winograd, 68 NY2d 383; People v Schulz, 67 NY2d 144; People v Basilicato, 64 NY2d 103; People v Penasso, 142 AD2d 691, 72 NY2d 1048; United States v Principie, 531 F2d 1132, 430 US 905; United States v Variano, 550 F2d 1330, 434 US 892; People v Hueston, 34 NY2d 116, 421 US 947; People v Madori, 153 AD2d 287.) II. The District Attorney’s office installed a fully operational wiretap 17 days before the eavesdropping warrant issued, and all evidence derived from the eavesdropping warrant must be suppressed. (People v Gallina, 66 NY2d 52; People v Basilicato, 64 NY2d 103; People v Washington, 46 NY2d 116; People v Nicoletti, 34 NY2d 249.) III. Defendant was deprived of a fair trial by admission of the opinion testimony of Officer Brad-berry, which went beyond his role as a gambling expert and invaded the jury’s exclusive province. (People v Bajraktari, 154 AD2d 542, 75 NY2d 963; People v Abreu, 114 AD2d 853; People v Ciaccio, 47 NY2d 431; People v Montesano, 84 AD2d 369; People v Graydon, 43 AD2d 842.)

      Denis Dillon, District Attorney of Nassau County, Mineola (Douglas Noll and Bruce E. Whitney of counsel), for respondent in the second above-entitled action.
    I. Defendant received full, timely written posttermination notice of eavesdropping; in any event, defendant’s actual notice of the eavesdropping warrant adequately satisfied the notice provision of CPL 700.50 (former [3]). (People v Hueston, 34 NY2d 116, 421 US 947; People v Scocco, 178 AD2d 570; People v Bialostok, 178 AD2d 537; United States v Fury, 554 F2d 522; United States v Donovan, 429 US 413; United States v Principie, 531 F2d 1132, 430 US 905; People v Madori, 153 AD2d 287; People v Mc-Grath, 46 NY2d 12, 440 US 972.) II. There was no potential for eavesdropping once the installer of the pen register "disabled any capability of listening”. (People v Gallina, 66 NY2d 52; People v Victor, 74 NY2d 874; People v Buckley, 75 NY2d 843; People v Russell, 71 NY2d 1016; People v Lopez, 71 NY2d 662; People v Michael, 48 NY2d 1; People v Jackson, 149 AD2d 532; People v Mayo, 136 AD2d 748; People v Dekle, 56 NY2d 835.) III. The testimony of Detective Bradberry did not invade the jury’s province. (People v Osuna, 65 NY2d 822; People v Mayo, 136 AD2d 748; People v Buckley, 75 NY2d 843; People v Ford, 66 NY2d 428; People v Teeter, 47 NY2d 1002; People v Velasco, 77 NY2d 469; People v Rivera, 73 NY2d 941; People v Balls, 69 NY2d 641; People v Forcione, 156 AD2d 952; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Acting Chief Judge Simons.

Defendants have been convicted on gambling and conspiracy charges based, in part, on evidence derived from electronic monitoring of two telephone lines used to transmit bets. On these appeals they question whether a pen register having the additional capacity to monitor conversations should be treated as an eavesdropping device under the Criminal Procedure Law and therefore permitted only when a Magistrate has issued a warrant based on probable cause. We hold that unless a warrant is obtained for instruments such as these, which were capable of monitoring conversations, the evidence must be suppressed. In these cases, however, the error was harmless.

Defendant Scocco also contends that suppression is required in his case because law enforcement officials failed to meet the requirement of CPL 700.50 (3) that written notice of a wiretap be given within 90 days of a warrant’s termination. Because he received adequate informal notice through his attorney within the applicable time period, suppression is not required. Accordingly, the order of the Appellate Division should be affirmed in each case.

I

Defendants and three others were indicted following an investigation of three "wire rooms” where bets were being taken over the telephone. They challenge the lawfulness of the electronic monitoring of the telephone lines at. one of them. In late November of 1986, an investigator installed electronic devices and monitoring telephones on two lines servicing the room. Each device was to serve as a pen register recording the telephone numbers dialed. Under the law at that time, a warrant based on probable cause was required for an eavesdropping device (CPL 700.15) but none was needed to install a pen register. Numbers recorded by the devices over the next several days were then used to support an application for an eavesdropping warrant to monitor conversations on the two lines. The warrant was issued and the investigator returned to the monitoring equipment, where, by simply attaching an audio cable, a tape recorder and a wire to activate the recorder’s remote start, he converted the previously installed units into listening devices. Calls were monitored from December 12 until December 22 and the evidence obtained was used by the People to prosecute defendants and their associates.

The nature of the equipment used on the two lines was first discovered at trial during the testimony of the investigator who installed it. Unlike the traditional pen register, the equipment employed here had audio capacity and thus defendants contended that the monitors were really eavesdropping devices. Though no evidence was introduced to suggest any conversations were heard or recorded prior to the December 12 warrant, defendants argued that the technological capacity of the devices brought them within the eavesdropping statute and required that an eavesdropping warrant be obtained prior to installation. The Trial Judge ruled that no warrant was needed because the devices were used solely as pen registers. The Appellate Division agreed, relying on the testimony of the installer that he had "disabled” the audio function at installation and that it had remained disabled throughout the period prior to the warrant.

II

Analysis begins with an understanding of why pen registers were exempted from the warrant requirement in the first place and why they continue to be treated differently from eavesdropping devices in the statutory scheme (compare, CPL 700.15, which requires evidence of probable cause for an eavesdropping warrant, and CPL 705.10, which permits a judicial order authorizing a pen register upon a showing of reasonable suspicion). Both the United States Supreme Court and this Court have found that use of the traditional pen register does not raise constitutional concerns (see, Smith v Maryland, 442 US 735 [applying the 4th Amendment]; People v Guerra, 65 NY2d 60 [applying NY Const, art I, § 12]). Underlying those holdings was a determination that a pen register was incapable of intruding on a legitimate expectation of privacy because it recorded only phone numbers dialed and disclosed nothing more than what phone users voluntarily conveyed to the telephone company in the ordinary course of business (Smith v Maryland, supra, at 744). Citizens have a legitimate expectation of privacy in the content of their phone conversations (Katz v United States, 389 US 347; Berger v New York, 388 US 41), but in the view of the Smith Court, no such expectation could attach to information so knowingly and routinely turned over to a third party. Central to the Court’s analysis was the pen register’s limited capabilities and the fact that unlike a listening device it does not "acquire the contents of communications” (at 741 [emphasis in original]). The Court, in making the distinction, quoted from its earlier decision in United States v New York Tel. Co. (434 US 159, 167): " 'These devices do not hear sound. They disclose only the telephone numbers that have been dialed * * * Neither the purport of any communication * * * nor whether the call was even completed is disclosed by pen registers’ ” (Smith v Maryland, supra, at 741).

The device used here undermines the logic of the court’s distinction between a pen register and a listening device. This device did not have capabilities limited to traditional pen registers only. In fact, it acquired the "contents of communications” from the moment it was installed. The addition of the audio cord and the tape recorder after the warrant was issued merely made accessible what was already being acquired.

The People’s case is no stronger because the audio function was "disabled” and no conversations were actually overheard. The issue is not the reasonableness of the search but statutory compliance. If a warrant is required by law, the fact that the officers behaved reasonably without one is unavailing. The purpose of the warrant requirement is to interpose a neutral and detached Magistrate between citizens and the police to protect individuals from having to rely on the good conduct of the officer in the field for the protection of their right to be free of unreasonable searches. As Justice Jackson put it: "When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent” (Johnson v United States, 333 US 10,14).

This Court has consistently recognized the " 'insidiousness of electronic surveillance’ ” (People v Liberatore, 79 NY2d 208, 213; People v Schulz, 67 NY2d 144, 148), and we have made plain that "[o]ur interpretation of article 700 must be sensitive to the constitutional guarantees against search and seizure that the statute seeks to protect” (People v Washington, 46 NY2d 116, 121). In People v Gallina (66 NY2d 52), for instance, we declined to condone the decision by law enforcement officials to turn off a listening device rather than permanently inactivate it during a period when a warrant was not in effect. As we said there, "[t]hat no unauthorized eavesdropping may have occurred is beside the point, because it is the potential for abuse that is the focus of analysis” (id., at 58 [emphasis added]). In light of the broad legislative intent of article 700 to safeguard individual privacy and the potential for abuse embodied in the technology used here, we distinguish this more sophisticated technology from that at issue in earlier pen register cases. The traditional pen register considered in Smith v Maryland was, to large extent, self-regulating. Neither through police misconduct nor through inadvertence could it reveal to anyone any information in which the telephone user had a legitimate expectation of privacy. The same is not true of the device used here. This is a technology that has the capacity, through willful use or otherwise, to intrude on legitimately held privacy, and it is the warrant requirement, interposing the Magistrate’s oversight, that provides to citizens appropriate protection against unlawful intrusion. Thus, we hold the devices employed here were subject to the warrant requirement and installation of them without one was unlawful.

Nonetheless the failure to obtain a warrant during the initial period the devices were connected was harmless. Investigators obtained information about numbers called during that period and used it in support of their application for the eavesdropping warrant. But had that information been suppressed, as it should have been, other evidence supporting the application, including evidence acquired by surveillance and actually placing bets through the wire room, provided more than sufficient grounds for the Magistrate’s finding of probable cause to support the eavesdropping warrant.

III

Defendant Scocco raises one other issue meriting discussion: the adequacy and timeliness of the notice he received after the lawful wiretap was removed.

In 1986 CPL 700.50 (3) required that within 90 days "after termination of an eavesdropping warrant, or expiration of an extension order” written notice must be given to those named in the eavesdropping warrant and certain other parties, unless exigent circumstances exist. The statute specifies that the notice is to contain "the fact and date of the issuance of the eavesdropping warrant, and of the period of authorized eavesdropping, and of the fact that during such period communications were or were not intercepted”.

The eavesdropping done on the two telephone lines here ceased on December 22, 1986. The warrant, however, set a final expiration date of December 26. Depending on which date is used in the calculation, the 90 days expired on March 22 or March 26, 1987. Evidence introduced before the suppression court showed that prior to March 22 defendant Scocco received oral notice of the wiretap through his attorney, but the formal Notice of Intercept was not served until March 26. The suppression court held that the 90-day period began running on December 22 but found that the oral notice was timely and sufficient. The Appellate Division concurred in result, but reasoned that the 90-day period did not start running until December 26, bringing the written notice within the allowable time frame. Accordingly, it did not reach the issue of whether informal notice was adequate under the statute.

The 90-day period began on December 22. Although the language of the statute states that the relevant initiating event is termination of the warrant and not termination of the eavesdropping (see, United States v Principie, 531 F2d 1132, 1142, cert denied 430 US 905), those two events occurred simultaneously under the terms of this warrant. Tracking the language of the statute, it provided that "this eavesdropping warrant * * * shall terminate upon attainment of the authorized objective or in any event in the fifteen (15) days herein-above specified”. By its terms, then, the warrant terminated when the investigators attained their objective on December 22 and appropriately discontinued their surveillance at that time. The fact that they could have continued eavesdropping legally until December 26 if their objective had not been attained is irrelevant. Plainly, their objective was attained. Therefore, resolution of the issue before us turns on the adequacy of the oral notice to defendant’s attorney, the only notice provided within 90 days of December 22.

While CPL 700.50 (3) requires written notice, the failure to comply should not result in an order of suppression here when defendant had oral notice of the eavesdropping within the statutory period (see, People v Hueston, 34 NY2d 116, cert denied 421 US 947). In Hueston, defendant did not receive information directly from law enforcement sources. Instead, his knowledge had come through communication with a third person who had received a Notice of Intercept concerning a phone tap in another jurisdiction. We determined that suppression was not required under those circumstances because of defendant’s actual knowledge of the wiretap. Where actual knowledge of the existence of the warrant is demonstrated within the time period allowed for notification by the prosecution, formal written notification becomes a ministerial act, and the failure to notify does not require suppression of evidence (People v Hueston, supra, at 122).

Here, defendant Scocco knew through his attorney that there was a warrant, that his conversations had been intercepted and that the investigation pertained to gambling. Significantly, unlike in Hueston, the information was provided directly by law enforcement officials and formal notice was given, albeit four days late. Under these circumstances, suppression would serve no useful purpose.

While we have called for "meticulous compliance” with the eavesdropping statute (People v Liberatore, 79 NY2d 208, 213, supra) and held that failure to comply will generally result in suppression (see, People v Winograd, 68 NY2d 383, 391), we have made limited exceptions when notice issues are involved and the facts and circumstances suggest that suppression runs counter to the "commonsense balance between the rights of the defendants] and the needs of law enforcement” (People v Liberatore, supra, at 216; see, People v Hueston, supra). The purposes of the warrant notification requirement are to publicize wiretaps to the community at large and to those subjected to them and to assure defendants are able to challenge the legality of eavesdropping warrants in a timely manner (People v Hueston, supra, at 122). Those purposes were served here by the direct notification to defendant’s attorney. We do not condone the delay in formal notice but suppression is not appropriate under these circumstances (compare, United States v Fury, 554 F2d 522, 528-529, cert denied sub nom. Quinn v United States, 433 US 910; see also, United States v Variano, 550 F2d 1330, cert denied 434 US 892; United States v Principie, 531 F2d 1132, supra).

We have reviewed defendants’ remaining contentions and find them without merit. Accordingly, the order of the Appellate Division in each case should be affirmed.

Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

In each case: Order affirmed.

[Next page is 751.]

      . "[A] device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line” (CPL 705.00 [1]).

      . In 1986, CPL 700.05 (1) defined "eavesdropping” as " 'wiretapping’ or 'mechanical overhearing of conversation,’ as those terms are defined in section 250.00 of the penal law”. "Wiretapping” is defined, in relevant part, as "intentional overhearing or recording of a telephonic or telegraphic communication” (Penal Law § 250.00 [1]).

      . CPL 705.10 now requires a judicial order based upon a showing of reasonable suspicion to install a pen register (see, L 1988, ch 744, § 21).


text:
    In the Matter of Angel Cordero, Jr., Appellant, v Richard Corbisiero, Jr., as Chairman of the New York State Racing and Wagering Board, et al., Respondents.
    Argued March 25,1992;
    decided June 4, 1992

      APPEARANCES OF COUNSEL

      Alan D. Levine and Joseph A. Faraldo for appellant.

      Robert Abrams, Attorney-General (Arnold D. Fleischer and Jerry Boone of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be modified, without costs, by annulling so much of respondent’s determination as directed that the penalty be served during Saratoga racing days, and the matter should be remitted to respondent Board for further proceedings in accordance with this memorandum.

As framed by the parties, the controlling question in this case is whether respondent’s so-called "Saratoga policy”— which requires that, following an administrative appeal, a suspension imposed for an infraction committed at the Sara-toga racetrack be served at the Saratoga meet the following year — has the attributes of a "rule” as that term is defined by State Administrative Procedure Act § 102 (2) (a) (i). The parties agree that, if it has such attributes, the Saratoga policy could not be applied in this case because it was not formally promulgated by respondent pursuant to the rule-making procedures set forth in State Administrative Procedure Act § 202. Significantly, no argument has been made that the procedural requirements of State Administrative Procedure Act § 202 are inapplicable to a policy, like this one, which was formulated by the Board in its adjudicatory capacity (cf., National Labor Relations Bd. v Bell Aerospace Co., 416 US 267, 290-295; Securities Comma, v Chenery Corp., 332 US 194, 202).

The Saratoga policy, according to the Board’s brief on appeal, applies "to every jockey * * * who elect[s] to race at Saratoga, commit[s] an infraction there, and unsuccessfully appeal[s] to the Board.” Such a policy seems clearly to fit the definition of what constitutes a rule, i.e., a fixed, general principle applied without regard to the facts and circumstances of the individual case (see, Matter of Roman Catholic Diocese v New York State Dept, of Health, 66 NY2d 948, 951). The Board argues, nonetheless, that the Saratoga policy does not fit the definition of a rule because it only affects the implementation of a penalty, not the jockey’s conduct.

We reject this argument. The Saratoga policy does not relate to the penalty as such; it does not purport to control the Board’s discretion as to what the suspension should be for a particular infraction. Rather, according to the Board’s own description of the policy in this case, it establishes a mandatory procedure that pertains only to when and where a Sara-toga suspension must be served in the event of an appeal (see, e.g., 7 NYCRR 252.5, 253.7, 254.7 [specifying the penalties that can be imposed after prison disciplinary hearings]).

We conclude, therefore, that the Saratoga policy fits State Administrative Procedure Act § 102 (2) (a) (i)’s definition of a rule — an agency’s stated policy of general applicability which prescribes a procedure or practice requirement of the agency. We do not address petitioner’s alternative argument that the Board arbitrarily and capriciously applied its Saratoga policy in this case. Petitioner’s claim that he was denied his right to present his case at the Board hearing is without merit, and he does not dispute that the Board’s determination to suspend him is supported by substantial evidence.

Chief Judge Wachtler and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Yesawich, Jr., concur; Judge Simons taking no part.

Judgment modified, without costs, and matter remitted to Supreme Court, New York County, with directions to remand to the New York State Racing and Wagering Board for further proceedings in accordance with the memorandum herein.

      . We note that, although petitioner recently announced his retirement, for purposes of our jurisdiction the case is not moot because, in theory at least, petitioner could renounce that decision at any time.

      . Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of Aetna Casualty and Surety Company, Appellant, v Andrew Gutstein, Respondent.
    Argued April 28, 1992;
    decided June 4, 1992

      APPEARANCES OF COUNSEL

      Evan H. Krinick for appellant.

      Edward K. Moran for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition to stay arbitration granted.

Under the facts of this case as found by Supreme Court, respondent, who maintained an apartment in Manhattan where he resided more than 80% of the time, is not a covered person entitled to uninsured motorist benefits under his father’s insurance policy. The policy provides such coverage only for a "family member”, defined in the policy as "a person related to [the insured] by blood, marriage or adoption who is a resident of [the insured’s] household”.

Although respondent stored some belongings in his parent’s New Jersey house and spent the night there occasionally, we conclude that Supreme Court’s finding that respondent was not a resident of his father’s household more nearly comports with the weight of the evidence than does the Appellate Division’s contrary finding.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Francis J. Doersam, Claimant, v Oswego County Department of Social Services, Respondent. Workers’ Compensation Board, Appellant.
    Argued April 28,1992;
    decided June 4, 1992

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Howard B. Friedland, Theresa E. Wolinski, Jane Lauer Barker, Peter H. Schiff and Jerry Boone of counsel), for appellant.

      David M. Garber for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (171 AD2d 934).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa.