text:
    First Presbyterian Church of Schenectady et al., Appellants, v United Presbyterian Church in the United States of America et al., Respondents.
    Argued March 22, 1984;
    decided May 15, 1984

      POINTS OF COUNSEL

      W. Jack Williamson, of the Alabama Bar, admitted pro hac vice, and Robert S. Trieble for appellants.
    Application of the “neutral principles of law” approach requires affir-mance of the trial court judgment. (Pres.byterian Church v Hull Church, 393 US 440; Maryland & Va. Churches v Sharpsburg Church, 393 US 367; Avitzur v Avitzur, 58 NY2d 108; Matter of First Presbyt. Soc., 106 NY 251; Westminister Presbyt. Church v Trustees of Presbytery, 211 NY 214; Matter of Presbytery of Albany [Second United Presbyt. Church], 35 AD2d 252, 28 NY2d 722, 404 US 803; Trustees of Dartmouth Coll, v Woodward, 4 Wheat [17 US] 518; People ex rel. Sturges v Keese, 27 Hun 483; Jones v Wolf, 443 US 595.)

      Duncan S. MacAffer for respondents.
    I. This is an ecclesiastical controversy and not a property dispute. (Presbyterian Church v Hull Church, 393 US 440; Jones v Wolf, 443 US 595.) II. Plaintiffs are under control of defendants and do not enjoy any independent corporate existence. III. The majority opinion of the court below properly applied the principles of settling church disputes in the government of the United Presbyterian Church in the United States of America. ('Watson v Jones, 13 Wall [80 US] 679; Serbian Orthodox Diocese v Milivojevich, 426 US 696; Trustees of Presbytery v Westminister Presbyt. Church, 222 NY 305; Matter of Presbytery of Albany, 63 Mise 2d 791, 35 AD2d 252, 28 NY2d 772, 404 US 803; Knight v Presbytery of Western N. Y., 26 AD2d 19,18 NY2d 868.) IV. The reliance by plaintiffs on section 24 of the Religious Corporations Law to create an exception to the general rule of deference to the authority of the church is erroneous. (Conklin v State of New York, 284 App Div 193; Westminister Presbyt. Church v Trustees of Presbytery, 211 NY 214.) V. Under the principles enunciated by the Supreme Court of the United States in Jones v Wolf (443 US 595), the property of the First Presbyterian Church should presently be under the control of defendants. (Watson v Jones, 13 Wall [80 US] 679; Kedroffv St. Nicholas Cathedral, 344 US 94; Kreshik v St. Nicholas Church, 363 US 190; Presbyterian Church v Hull Church, 393 US 440; Serbian Orthodox Diocese v Milivojevich, 426 US 696; Maryland & Va. Churches v Sharpsburg Church, 393 US 367.)
   OPINION OF THE COURT

Simons, J.

This action involves a dispute between plaintiff First Presbyterian Church of Schenectady (First Church), and its denominational church organization, defendant The United Presbyterian Church in the United States of America (UPCUSA). It arose when First Church withdrew from the denominational church because of a disagreement over UPCUSA’s financial support of radical political groups and individuals. Plaintiffs seek a declaration of their independent status and a permanent injunction preventing defendants from interfering with plaintiffs’ use and enjoyment of the local church property. The issue is whether the court may resolve the dispute between the parties as it would any other or must, consistent with the prohibition against church/State entanglement contained in the First Amendment to the United States Constitution, defer to the determination of the denominational church. We hold that it may resolve the dispute and that plaintiffs are entitled to injunctive relief. We therefore reverse the order of the Appellate Division dismissing the complaint.

Prior to January 24,1977, First Church was a member of defendant Presbytery of Albany and defendant UPCUSA. UPCUSA exhibits a hierarchical or connectional form of church government, as differentiated from a congregational form. Under the hierarchical system, authority is vested in the first instance in the governing body of the local church — the Session — but its actions are subject to review and control by higher church bodies, in ascending order of authority, the Presbytery, the Synod and the General Assembly. To contrast, a congregational type church is independent of higher church authority and is self-governing.

First Church was organized in 1760, during the colonial period, and first incorporated on January 14, 1803, pursuant to chapter 79 of the Laws of 1801. It became a member of the Presbytery of Albany in 1770 and UPCUSA’s predecessor denomination in 1789. It retained that status until January, 1977. During the 1970’s members of the church’s 440 person congregation expressed discontent with UPCUSA and petitioned defendant Presbytery of Albany to be dismissed to another denomination. The request was denied. Instead, defendant Presbytery appointed an administrative commission to investigate the activities of the Session of First Church and to file a report containing its findings and recommendations. On January 24,1977, at its annual meeting, First Church passed a resolution by a final vote of334 to 4, severing its relations with defendants and retaining title to all real or personal property held by the church. Shortly thereafter, the commission submitted its report to the Presbytery advising removal of the Session of the First Church and appointment of another administrative commission with authority to function as a Session. The Presbytery attempted to exercise continued control over First Church by removing its ministers’ names from the church rolls but plaintiffs disregarded the orders of the commission and functioned as an autonomous body.

On April 16, 1977, plaintiffs, the church, its ministers and its governing Session, commenced this action seeking a declaration that it was free to withdraw from defendants UPCUSA and Presbytery of Albany and a permanent injunction enjoining defendants from interfering with plaintiffs’ use and enjoyment of church property. In their answer, defendants opposed the action and asserted a counterclaim seeking to permanently enjoin plaintiffs from refusing to obey its directives, orders and mandates in the management and control of the church. Following a non-jury trial, plaintiffs were granted an order permanently enjoining defendants from interfering with the property but denying declaratory relief on the withdrawal issue. Defendants’ counterclaim was dismissed.

A divided Appellate Division modified the judgment of Trial Term by reversing the grant of injunctive relief, dismissing the complaint and granting defendants’ counterclaim. The three-Judge majority of the court, in an opinion by Justice Kane, relied upon the principle of deference by civil authorities in ecclesiastical matters and held that the court should not adjudicate the claims (see Watson v Jones, 13 Wall [80 US] 679). Presiding Justice Mahoney, concurred in part. He applied the “neutral principles of law” rationale of Jones v Wolf (443 US 595) to the facts and after doing so he held for defendants on their counterclaim for injunctive relief. Dissenting Justice Casey also applied the “neutral principles of law” analysis but after analyzing the evidence he found that plaintiffs were entitled to injunctive relief and he therefore voted to affirm Trial Term’s judgment. Plaintiffs appeal only from that part of the Appellate Division order relating to injunctive relief.

Before this court, defendants characterize the present dispute as involving nothing more than a controversy over church policy and authority. To support their position they cite the allegations of plaintiffs’ complaint objecting to UPCUSA’s funding of various political and social groups and the refusal of plaintiffs to recognize the authority of the investigative commission. They contend that because this is a policy dispute the court must defer to the authority of the hierarchical church and avoid resolving the underlying question of property ownership; any other course would necessarily entangle it in church dogma and doctrine and thereby violate the First Amendment.

Plaintiffs, on the other hand, view this as an action concerning only the question of property ownership, a matter which can be resolved without violating the prohibitions of the First Amendment by application of the neutral principles of law analysis. Applying neutral principles, plaintiffs conclude that they are entitled to ownership and control of the property because the deeds to the property are in the name of the local church or its trustees, the members of the local church provided all the funds for the purchase and maintenance of the church property, and the church constitution contained no express language granting a trust or proprietary right in favor of the UPCUSA.

Addressing these contentions, our analysis starts with a brief discussion of the general principles recognized by the courts in church-related disputes, then proceeds, in order, to a consideration of the deference rule, the neutral principles of law rule and the application of that rule to the facts of this case, and finally, to a consideration of implied trust principles.

I

The legal rules governing this dispute are derived from the Federal Constitution and have developed through a number of court decisions interpreting it.

The First Amendment, binding on the States through the Fourteenth, prohibits the making of “laws respecting an establishment of religion, or prohibiting the free exercise thereof” (US Const, 1st Arndt, 14th Arndt; Cantwell v Connecticut, 310 US 296 [free exercise]; Everson v Board of Educ., 330 US 1 [establishment]). Consistent with these amendments civil courts are forbidden from interfering in or determining religious disputes. Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct for the organization while interfering with the free exercise of the opposing faction’s beliefs (Maryland & Va. Churches v Sharpsburg Church, 396 US 367, 369 [Brennan, J., concurring]; see Nowak, Rotunda & Young, Constitutional Law [2d ed], ch 19, § IV, pp 1071-1072; Tribe, American Constitutional Law, § 14-12, pp 870-872). The Constitution directs that religious bodies are to be left free to decide church matters for themselves, uninhibited by State interference (Serbian Orthodox Diocese v Milivojevich, 426 US 696; Kedroff v St. Nicholas Cathedral, 344 US 94, 116).

In Serbian Orthodox Diocese (supra), the issues concerned the identity of the lawful bishop of the Serbian Eastern Orthodox Diocese for the United States and the validity of the division of the American-Canadian Diocese into three dioceses. A similar issue was presented in Kedroff v St. Nicholas Cathedral (supra) when the court was asked to determine which of two competing church organizations, the Russian Orthodox Church in America or its Russian counterpart, had the power to appoint the prelate of the New York Diocese. The Supreme Court refused to resolve these questions notwithstanding that the control of church properties was incidentally affected by the determinations. The court deferred to the ecclesiastical bodies because to do otherwise in an attempt to settle the property disputes would require the court to interpret church doctrine and involve it in matters which were predominantly religious disagreements.

These rulings controlled the trial court’s disposition of plaintiffs’ first demand for relief. To the extent that their complaint sought a declaration of their right to withdraw from the Presbytery, it was beyond the power of the court to grant that relief because the determination required an examination and interpretation of the authority of the Presbytery to permit or prevent withdrawal of a local church. And this was so even though the court might have found support for First Church’s claim from the facts that the church constitution is silent on the issue and there is apparent precedent for unilateral withdrawal by a local church and dismissal to another denomination.

To the extent that plaintiffs’ complaint seeks to enjoin defendants from interfering with its use of the property, however, the matter was properly entertained. At the time this action was before the court, the abstract issue of whether the local church had the right to withdraw from the Presbytery was not in the case (see Presbytery of Riverside v Community Church, 89 Cal App 3d 910, cert den 444 US 974; and Presbytery of Elijah Parish Lovejoy v Jaeggi, _ SW2d _ [Mo]). The Presbytery had not yet appointed a commission to replace the church Session and plaintiffs had terminated their relations with the Presbytery and refused to recognize its authority. Thus judicial resolution of this property dispute will not cause the court to intrude into the religious area because it is not required to decide which of two competing bodies is the lawful Session with authority to control the property (cf. Serbian Orthodox Diocese v Milivojevich, 426 US 696, supra). Inasmuch as “the State has a legitimate interest in resolving property disputes, and * * * a civil court is a proper forum for that resolution” a determination of the issue submitted to us is appropriate (see Presbyterian Church v Hull Church, 393 US 440, 445; Note, Judicial Intervention in Church Property Disputes — Some Constitutional Considerations, 74 Yale LJ 1113, 1130). Indeed, the Supreme Court has specifically permitted State court resolution of church property disputes in these circumstances, i.e., when the denominational church has contested the right of the local church to withdraw, by holding that no Federal question is presented by the State court’s ruling with respect to a property dispute in favor of the withdrawing faction (see Maryland & Va. Churches v Sharpsburg Church, 396 US 367, dsmg app 254 Md 162, supra).

II

Nevertheless, defendants contend, and the Appellate Division majority held, that even if the case is viewed as a contest over the right to control use of the property, the courts are bound to defer to the highest authority in the hierarchical church pursuant to the long-standing rule of Watson v Jones (13 Wall [80 US] 679, supra). Watson, decided before the First Amendment was held applicable to the States, dealt with a dispute between two rival factions of the Walnut Street Presbyterian Church over control of the church premises. The deed to the property as well as the charter of the local church, “subjected both property and trustees alike to the operation of the general church’s fundamental laws.” The minority faction seized control of the church and in the resulting litigation, the Kentucky courts ruled in its favor. The majority faction then brought an action in Federal court which sustained their claim and on appeal the United States Supreme Court affirmed. It noted that the local congregation was a member of a larger Presbyterian Church and subject to its authority and because the General Assembly had decided in favor of the majority faction, the courts were bound by that decision. Justice Miller speaking for the court stated that: “where the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete [and] * * * whenever the questions of discipline, or of faith, or ecclesiastical rule, custom or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them" (13 Wall [80 US], at pp 722, 727 [emphasis added]). This language forms the basis for the “complete deference” standard of review. It provides that all members of hierarchical organizations submit themselves to the decision-making authority of the church in ecclesiastical matters, excluding civil court involvement “[i]n the absence of fraud, collusion or arbitrariness” (Gonzalez v Archbishop, 280 US 1, 16).

Although apparently absolute in scope, the Watson decision did not pass on whether the courts could decide exclusively property issues in litigation involving a hierarchical church (see Note, Judicial Intervention in Church Property Disputes — Some Constitutional Considerations, 74 Yale 1113, 1120-1121). That question was answered in Presbyterian Church v Hull Church (393 US 440, supra). On facts analogous to Watson, the court recognized that church property disputes implicate the establishment and free exercise clauses of the First Amendment but held that the courts are free to decide such disputes if they can do so without resolving underlying controversies over religious doctrine. It indorsed the “neutral principles of law” analysis which has been developed for use in all property disputes and which can be applied without “establishing” churches to which the property is awarded (Presbyterian Church v Hull Church, supra, at p 449). This rule was later restated and approved in Jones v Wolf (443 US 595, supra).

The neutral principles of law analysis has not been explicitly adopted by this State, although we applied the rule in Avitzur v Avitzur (58 NY2d 108, 114-115, cert den _US_, 104 Ct 76 [civil court may enforce the secular terms of a religious marriage contract (Ketubah) through application of ordinary principles of contract law]). We do so in this action. Applying that analysis, we determine that the property shall remain in the control of plaintiff First Church.

In Jones v Wolf (supra), 164 members of the Vineville Presbyterian Church voted to separate from the Presbyterian Church in the United States (PCUS), while 94 members opposed such action. The majority then united with another denomination and retained possession of local church property. The Presbytery of Augusta-Macon appointed a commission to investigate the dispute and that commission ultimately ruled that the minority faction was the “true congregation” of the local church. Members of the minority faction then sued in State court seeking declaratory and injunctive orders establishing their right to exclusive possession and use of the local church property. Applying “neutral principles of law,” the trial court granted judgment for the majority and the Georgia Supreme Court affirmed. Although the Supreme Court approved the rationale of the State courts it vacated the judgment and remanded the case for further proceedings because they had failed to address the additional complicating factor that the congregation was itself divided. That problem is absent in this case because the four members who did not wish to withdraw from the Presbytery have not contested the action of the overwhelming majority of the church membership, and without the dissenters’ involvement, the case may properly be viewed as no more than a dispute between the general church and the local congregation.

In Jones the Supreme Court held that a State court is entitled to adopt a “neutral principles of law” analysis as a means of resolving church property disputes, but it is not required to do so. Judicial deference to a hierarchical organization’s internal authority remains an acceptable alternative mode of decision. We choose to recognize the neutral principles of law analysis and we apply it here. We do so in the belief that when properly applied it avoids drawing civil courts into religious controversies by focusing on evidence from which the court may discern the objective intention of the parties and it also permits the State to protect its legitimate interests in securing titles to property. The rule is explicitly designed to achieve that end (see Jones v Wolf, 443 US 595, 603-604, supra). It is completely secular in operation, it is flexible enough to accommodate all forms of religious organizations and it relies upon well-established principles of law familiar to Judges and lawyers. It also provides predictability so that religious organizations may order their affairs to account for its application. Moreover, we agree with those who have observed that the doctrine is preferable to deference because it does not prefer one group of disputants to another. The deference approach assumes that the local church has relinquished control to the hierarchical body in all cases, thereby frustrating the actual intent of the local church in some cases. Such a practice, it is said, discourages local churches from associating with a hierarchical church for purposes of religious worship out of fear of losing their property and the indirect result of discouraging such an association may constitute a violation of the free exercise clause. Additionally, by supporting the hierarchical polity over other forms and permitting local churches to lose control over their property, the deference rule may indeed constitute a judicial establishment of religion (see Adams & Hanlon, Jones v. Wolf: Church Autonomy and the Religion Clauses of the First Amendment, 128 U of Pa L Rev 1291, 1337).

In applying neutral principles, the focus is on the language of the deeds, the terms of the local church charter, the State statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of church property (Jones v Wolf, 443 US 595, 603, supra, citing Maryland & Va. Churches v Sharpsburg Church, 396 US 367, 368, dsmg app 254 Md 162, supra). The court must determine from them whether there is any basis for a trust or similar restriction in favor of the general church, taking special care to scrutinize the documents in purely secular terms and not to rely on religious precepts in determining whether they indicate that the parties have intended to create a trust or restriction. The trial court correctly applied these principles in ruling in plaintiffs’ favor.

First, under familiar property law principles, plaintiff church held record title to the property free from any competing interests. The deeds by which plaintiff church acquired the several parcels of realty all named First Church or- its trustees as grantees, their operative provisions contained no forfeiture or reversion clauses in favor of the various grantors or UPCUSA and the record does not indicate that any of the property was acquired by restrictive gift. None of the deeds include language of trust or restriction vesting a present or future interest in the Albany Presbytery or the UPCUSA.

Turning to the local charter, plaintiff church apparently filed two certificates of incorporation, the first in 1803 and the second in 1809 and these certificates are silent on the question of how the property is to be owned.

Next, State law provides that property disputes involving the Presbyterian Church are controlled by subdivision 3 of section 69 of the Religious Corporations Law. It requires that trustees of the local church govern the property in accordance with the constitution of the UPCUSA (see, e.g., Trustees of Presbytery v Westminister Presbyt. Church, 222 NY 305). However, these provisions of the Religious Corporations Law are not applicable to churches incorporated prior to 1828 if the statute is inconsistent with the law as it existed at the time of incorporation, unless the church reincorporates after 1828 or the trustees determine by resolution that the provisions of the Religious Corporations Law shall apply (Religious Corporations Law, § 24). The exception governs this case inasmuch as the law in 1803, the date of incorporation, is inconsistent with section 69 (see Matter of First Presbyt. Soc., 106 NY 251, 254), there was no reincorporation by plaintiff church subsequent to 1828 and the trustees never resolved to make the statute applicable. Indeed the fact that plaintiff church, acting through its trustees, chose not to bring itself within the scope of section 69, relying instead upon prior law giving it undisputed ownership, is evidence that ownership rests with plaintiffs.

The last item to be considered is the constitution of the denominational church, known as the Book of Order. In examining it, the court may look only to provisions relating to property and it must interpret them in a secular light. The Book contains no provision which creates an express trust in favor of the UPCUSA. But defendants rely upon the wording in two chapters to support their view that the denominational church is intended to retain control of local church property in the event of a schism. In chapter XXXII of part II, entitled “Of Incorporation and of Trustees”, section 62.11 provides that whenever a local church is dissolved, “such property as it may have * * * shall be held * * * as the presbytery may direct * * * in conformity with the Constitution of The United Presbyterian Church in the United States of America.” That provision is inapplicable because plaintiff church is not undergoing a dissolution or extinction. Defendants also refer the court to the provisions in chapter XI of part II, entitled “Of the Session”. Section 41.07 of chapter XI provides that the “session”, which is the governing body of the local church, has “exclusive authority over the uses to which the church buildings and properties may be put.” (See, also, Book of Order, ch XI, § 41.08; ch XXXII, § 62.08.) Section 41.15 authorizes the regional governing body within UPCUSA, the “presbytery”, to appoint a “commission” to take the place of the local church’s “session”, with the full powers of the “session”, in the event “the session of a particular church is unable or unwilling to manage wisely the affairs of its church”. These provisions, relied upon by the concurring Justice at the Appellate Division as establishing an intent to create a beneficial interest in the denominational church, are located outside the property section of the Book of Order. They deal with church government and relate only indirectly to the control of property. They set forth the mechanism of church government in the event of a church dispute and any inquiry into their meaning by a court is constitutionally foreclosed because it would require the court to choose between the insurgent Session and the commission or “replacement Session.” Moreover, the authority of the Session to direct control of property in such a dispute is belied by the constitution itself in view of the fact that other sections of the Book ascribe to the Session power which is purely spiritual (part II, ch V, § 35.03). In view of this ambiguity, these provisions should be discounted, leaving nothing in the Book of Order to support defendants’ position.

IV

Finally, we address the argument that in the absence of a specific understanding or agreement preserving a separate entity and expressing an intention to withhold property, it is presumed that the local church intended to dedicate the property to the purposes of the larger body by voluntarily merging itself with it (see Mills v Baldwin, 362 So 2d 2 [Fla], vacated and remanded 443 US 914). This represents an application of the implied trust doctrine which we have recognized in other contexts (see St. Joseph’s Hosp. v Bennett, 281 NY 115). It is not applicable here.

There are three types of implied trusts in church property disputes: (1) an implied trust for the benefit of those members of a divided congregation who adhere to the principles of the founders of the religion (see Attorney Gen. ex rel. Mander v Pearson, 3 Mer 353, 36 Eng Rep 135); (2) an implied trust for the denominational church; and (3) an implied trust for the members of the congregation (see Note, Judicial Intervention in Disputes Over the Use of Church Property, 75 Harv L Rev 1142). Only the first two types concern us. An implied trust for the members of the congregation, by definition, would not benefit this denominational church.

The first type of trust must be rejected where it leaves the courts in the position of determining what the original principles of the church were — the inquiry into doctrine precluded by Presbyterian Church v Hull Church (393 US 440, supra) and earlier State decisions (see Gram v Prussia Emigrated Evangelical Lutheran German Soc., 36 NY 161; Petty v Tooker, 21 NY 267; Robertson v Bullions, 11 NY 243; see Tribe, American Constitutional Law, § 14-12, pp 872-875). Nor can there be an implied trust of the second type, for to establish such a trust there must be a sufficient manifestation of the intention to do so. (Restatement, Trusts 2d, § 23.) First Church acquired the property on its own without any funding assistance from the denominational church and there is no evidence that it intended to hold the property in trust. The evidence is just the other way. First Church took no action from which an intent to create a trust may be implied and it had no notice or knowledge that the Presbytery or UPCUSA claimed that an implied trust existed prior to this dispute. The trustees of First Church failed to pass a resolution bringing the church within the statutory trust provision of section 69 of the New York Religious Corporations Law and no other commitment in writing was undertaken to create one (see Presbytery of Riverside v Community Church, 89 Cal App 3d 910, supra). Additionally, not only does the Book of Order contain no provision of trust, but in 1929 UPCUSA proposed an amendment to the church rules establishing a trust of all church properties for the denominational church and the amendment failed to receive the necessary votes of the Presbyteries for passage. The mere fact of First Church’s association with the denominational body, even an association lasting 200 years, does not by itself support a finding that an implied trust was created.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, without costs, and the judgment of Trial Term reinstated.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer and Kaye concur.

Order, insofar as appealed from, reversed, without costs, and judgment of Supreme Court, Saratoga County, reinstated.

       Plaintiffs had previously sued in the United States District Court for the Northern District of New York (Foley, J.), seeking identical relief. The requested relief was denied on the ground that the First Amendment precluded the court from ruling on the issues (First Presbyt. Church v United Presbyt. Church, 430 F Supp 450). No claim is made that res judicata principles apply because of that determination.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Juan Almodovar, Appellant.
    Argued March 27, 1984;
    decided May 15, 1984

      POINTS OF COUNSEL

      Theodore S. Green and William E. Hellerstein for appellant.
    I. Appellant was denied due process by the trial court’s refusal to instruct the jury that the complainant’s screwdriver, which defense witnesses saw him use as a weapon, was a dangerous instrument under those circumstances. {People v Almond, 37 AD2d 571.) II. Appellant was denied due process by the trial court’s jury instructions which expressly disassociated the justification defense from the count charging criminal possession of a weapon in the second degree and by the court’s refusal to relate justification to that crime. {People v Hunter, 61 AD2d 990.) III. Appellant was denied due process by the trial court’s supplemental jury instructions, which strongly suggested that the People did not have the burden of proving the absence of justification beyond a reasonable doubt. {Sandstrom v Montana, 442 US 510; Mullaney v Wilbur, 421 US 684; People v Newman, 46 NY2d 126; People v Steele, 26 NY2d 526; People v Malloy, 55 NY2d 296; Arroyo v Jones, 685 F2d 35; Bollenbach u United States, 326 US 607; People v McNair, 48 AD2d 860.) IV. Appellant was denied due process by the trial court’s refusal to give a “missing witness” charge with respect to the prosecution’s failure to call a key witness. {Noce v Kaufman, 2 NY2d 347; People v Brown, 34 NY2d 658; People u Rodriguez, 38 NY2d 95.)

      Mario Merola, District Attorney {Alan D. Kaplan and Steven R. Kartagener of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt. {People v Gruttola, 43 NY2d 116; Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620.) II. The court’s charge to the jury was proper in all respects. {People v Pena, 50 NY2d 400; People v Almond, 37 AD2d 571; United States v Wallace Co., 336 US 793; People v Pendergraft, 50 AD2d 531; People v Qualls, 55 NY2d 733; People v Moore, 59 AD2d 602; People v Malloy, 55 NY2d 296; People v Arcar-ola, 96 AD2d 1081.) III. The trial court properly refused to give a missing witness charge regarding Carmen Rivera. {People v Stridiron, 33 NY2d 287; People v Buckler, 39 NY2d 895; People v Josan, 92 AD2d 902.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted after trial of assault, first degree (intentional assault), and criminal possession of a weapon, second degree, on an indictment which also charged him with attempted murder, second degree, and a second count of assault in the first degree (reckless assault). The reckless assault count was dismissed by the court during trial and the jury acquitted defendant of attempted murder. The charges arose out of a street altercation between defendant and William Roche which ended when defendant fired several pistol shots at Roche striking him four times. Defendant claimed that he acted in self-defense, that Roche had attacked him first with the gun and then with a screwdriver and that he took control of the gun from Roche and used it to protect himself.

On this appeal he challenges the court’s charge to the jury in four respects.

Defendant’s principal claims are that the court erred in refusing to charge justification as a defense to criminal possession and that it erred in giving the jury supplemental instructions. He also complains of the court’s refusal to grant two other requests, that it charge the jury that the screwdriver allegedly possessed by the victim was a dangerous instrument and that it give a missing witness charge because the People failed to call to testify Carmen Rivera, the victim’s common-law wife, who had observed the fight.

The trial court instructed the jury that they should consider the defense of justification as to the first two counts of the indictment charging defendant with attempted murder in the second degree and assault in the first degree but that justification did not apply to count four, criminal possession of a weapon in the second degree. Instead, the court charged that temporary and lawful possession could result when a person obtains a weapon by wresting it from another who is about to attack him and that such temporary and lawful possession is a defense to a charge of criminal possession of a weapon in the second degree. Defendant requested that the court charge lawful possession in the language of People v Pendergraft (50 AD2d 531), i.e., that lawful possession includes possession for the purpose of self-defense. Since the Penal Law requires an “intent to use the [gun] unlawfully against another” he claimed the instruction was necessary to negate the element of unlawful intent (see Penal Law, § 265.03).

The essence of the illegal conduct defined in sections 265.01-265.05 of the Penal Law is the act of possessing a weapon unlawfully. The crime may be more serious because of the intent with which the defendant acts but unless the possession is other than innocent there is no crime. Once the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime (see, e.g., Penal Law, § 120.00, subd 3; § 120.05, subds 2, 4; § 120.10, subd 1; § 160.15, subd 2; § 265.35).

In some circumstances, however, a person may possess an unlicensed or proscribed weapon and still not be guilty of a crime because of the innocent nature of the possession. This defense of “temporary and lawful” possession applies because as a matter of policy the conduct is not deemed criminal (see People v La Pella, 272 NY 81; see, also, Penal Law, § 265.20; cf. People v Williams, 50 NY2d 1043). For example, a defendant may not be guilty of unlawful possession if the jury finds that he found the weapon shortly before his possession of it was discovered and he intended to turn it over to the authorities (People v La Pella, supra; People v Furey, 13 AD2d 412), or that he took it from an assailant in the course of a fight (People v Harmon, 7 AD2d 159). The innocent nature of the possession negates both the criminal act of possession and the intent with which the act is undertaken when intent is an element of the crime.

But a person either possesses a weapon lawfully or he does not and he may not avoid the criminal charge by claiming that he possessed the weapon for his protection. Justification may excuse otherwise unlawful use of the weapon but it is difficult to imagine circumstances where it could excuse unlawful possession of it (cf. People v Padgett, 60 NY2d 142). Accordingly, the only charge defendant was entitled to on the fourth count of the indictment was temporary innocent possession; any benefit he was entitled to because of the claim of self-defense pertained to the use of a weapon and he received that when the court charged justification in connection with the counts of attempted murder and assault.

Nor was there error in the court’s supplemental instructions. After the jurors had deliberated for less than an hour, they sent a note to the court asking for the “legal definition of counts one, two and four.” When the Judge requested that they clarify their question, they sent back a list of the charges. The court summoned counsel and solicited requests or comments from them. Defense counsel replied that he had “no particular comment” on the inquiry and the prosecutor stated that she would interpret the jury’s note as a request for the elements of the charges. The court then returned the jury to the courtroom and gave supplemental instructions detailing the elements of the crimes contained in the three counts under consideration. The court did not repeat its instructions on justification but it did state that, to establish his guilt of criminal possession of a weapon, the People were required to prove beyond a reasonable doubt that defendant’s possession of the gun was not for lawful and temporary purposes. After the court had concluded and the jury had returned to the jury room to deliberate, defense counsel requested the court to repeat its charge on justification. The court refused to do so and counsel now claims this was reversible error. He contends that because the prosecution bears the burden of proving the absence of justification beyond a reasonable doubt once the defense is raised (see Penal Law, § 25.00; People v Steele, 26 NY2d 526, 528), the court’s failure to give supplemental instructions on that defense effectively reduced the prosecutor’s burden of proof.

CPL 310.30 provides that the jury may request further instructions at any time during its deliberations and if it does so the court must “give such requested information or instruction as [it] deems proper.” The court possesses some discretion in framing its supplemental instructions but it must respond meaningfully to the jury’s inquiries (People v Malloy, 55 NY2d 296, 301; People v Gonzalez, 293 NY 259, 262). The sufficiency of a trial court’s response is gauged by “the form of the jury’s question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the supplemental instruction actually given and the presence or absence of prejudice to the defendant” (People v Malloy, 55 NY2d 296, 302, supra).

In this case the court received the jury’s written inquiry, clarified it with the foreman and asked both counsel to comment. Defense counsel made no request for a charge on justification at that time. The court then gave the supplemental instructions. The record does not indicate that it had misinterpreted the request or that the jurors were dissatisfied with the instructions given. They did not ask for further instructions on justification and defense counsel did not request it until after the jury retired. Under the circumstances, the court did not err when it refused to go beyond the jury’s request (see People v Malloy, 55 NY2d 296, 303, Indeed while it might not have been inappropriate for the court to remind the jurors in its supplemental instructions of defendant’s claim that his acts were justified, a return of the jurors to the courtroom for that purpose after they had resumed deliberations might well have placed undue emphasis on the issue.

We find no error in the other points raised by defendant. The court properly denied counsel’s request to charge that Roche’s use of a screwdriver as alleged by defense witnesses rendered the screwdriver a dangerous instrument as a matter of law and its use a use of deadly physical force (Penal Law, § 10.00, subds 10, 13). The charge as requested contained several unresolved factual issues and the trial court had already given defendant a charge more favorable to his case when it instructed the jury that it could find that defendant was justified in defending himself against a reasonably apprehended danger even if they found that Roche did not have a weapon capable of inflicting deadly physical force. To be distinguished are those situations where the use of a dangerous instrument is an element of a charged crime (see People v Pena, 50 NY2d 400, 407), or where the uncontradicted nature and use of an instrument renders it capable of causing serious physical injury or death as a matter of law (see People v Almond, 37 AD2d 571). In such cases the court may be required to clarify the issue for the jury. Nor did the failure of the People to call Carmen Rivera to testify entitle defendant to a missing witness charge. There was nothing to indicate that Ms. Rivera’s testimony would have contradicted or added to that of the other witnesses and defendant knew her identity yet chose not to call her (see People v Buckler, 39 NY2d 895).

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

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer and Kaye concur.

Order affirmed.


author: Per Curiam.

text:
    Helen Huntley, Respondent, v State of New York, Appellant.
    Argued March 29, 1984;
    decided May 15, 1984

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General CMichael S. Buskus

    called finding of fact of a suicidal ideation on April 5 is erroneous as a matter of law. (Somersall v New York Tel. Co., 52 NY2d 157; Blum v Fresh Grown Preserve Corp., 292 NY 241; Noce u Kaufman, 2 NY2d 347; Fiederlein v New York City Health & Hosps. Corp., 80 AD2d 821, 56 NY2d 573.) II. The medical judgment rule governs negligence and medical malpractice claims relating to the level of supervision of psychiatric patients. (Topel v Long Is. Jewish Med. Center, 55 NY2d 682; Mossman v Albany Med. Center, 34 AD2d 263; Fiederlein v New York City Health & Hosps. Corp., 56 NY2d 573; Koenigsmark v State of New York, 80 AD2d 707, 55 NY2d 928; Hirsh v State of New York, 8 NY2d 125; Holtfoth v Rochester Gen. Hosp., 304 NY 27; Sheehan v North Country Community Hosp., 273 NY 163; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Hendrickson v Hodkin, 276 NY 252; Dillon v Rocka-way Beach Hosp., 284 NY 176.) III. Subtraction of collateral source payments is required, both in medical malpractice actions and in negligence actions claiming improper delivery of medical services. (Coyne v Campbell, 11 NY2d 372; Healy v Rennert, 9 NY2d 202; Drinkwater v Dinsmore, 80 NY 390; Rutzen v Monroe County Long Term Care Program, 104 Mise 2d 1000.)

      Richard K. Hughes and Frederick F. Shantz for respondent.
    I. This court should not review questions of fact decided by the Court of Claims and affirmed by the court below. (Mangold v Neuman, 57 NY2d 627; Howard v Murray, 38 NY2d 695; 67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245; Pfohl v Wipperman, 34 NY2d 597; Láveme v Incorporated Vil. of Laurel Hollow, 18 NY2d 635, 386 US 682; Matter of Farrell v Drew, 19 NY2d 486; Gutin v Mascali & Sons, 11 NY2d 97; Goehle v Town ofSmithtown, 55 NY2d 995; Felt v Olson, 51 NY2d 977; Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556.) II. The lower courts’ determination of negligence is amply supported by the record and should be affirmed. (Topel u Long Is. Jewish Med. Center, 55 NY2d 682; Hirsh v State of New York, 8 NY2d 125; Comiskey v State of New York, 71 AD2d 699; Liddie v State of New York, 190 Mise 347; Zophy v State of New York, 27 AD2d 414; Collins v State of New York, 23 AD2d 898,17 NY2d 542; Callahan v State of New York, 179 Mise 781, 266 App Div 1054; Brown v State of New York, 84 AD2d 644; Cohen v State of New York, 51 AD2d 494, 41 NY2d 1086; Wright v State of New York, 31 AD2d 421.) III. The decision of the Court of Claims, as affirmed by the court below, is not in conflict with decisions of this court. {Topel v Long Is. Jewish Med. Center, 55 NY2d 682; Fieder-lein v New York City Health & Hosps. Corp., 80 AD2d 821, 56 NY2d 573; Koenigsmark v State of New York, 80 AD2d 707, 55 NY2d 928; Cohen v State of New York, 51 AD2d 494; Bell v New York City Health & Hosps. Corp., 90 AD2d 270; Centeno u City of New York, 48 AD2d 812, 40 NY2d 932.) IV. The collateral source rule should not be overturned or modified. {Healy v Rennert, 9 NY2d 202; Silinsky v State-Wide Ins. Co., 30 AD2d 1; Cady v City of New York, 19 AD2d 822, 14 NY2d 660; Castleberry v Hudson Val. Asphalt Corp., 60 AD2d 878; Luddy v State of New York, 50 Mise 2d 992; Eichel v New York Cent. R.R. Co., 375 US 253; New York State Thruway Auth. v Civetta Constr. Corp., 62 AD2d 530; Hale v State of New York, 53 AD2d 1025; Twitchell v MacKay, 78 AD2d 125; Gioia v State of New York, 22 AD2d 181.)
   OPINION OF THE COURT

Per Curiam.

Where a psychiatric hospital patient with a history of instability communicated her specific suicide plan involving an off-premises location to a hospital staff member, failure to transmit such information to the staff psychiatrist (who controlled the patient’s privileges to leave hospital premises) constituted a breach of duty and rendered the hospital liable for negligence. CPLR 4010, which limits the application of the collateral source rule in medical malpractice actions, has no application to the hospital’s liability for negligence.

At issue on this appeal is the liability of appellant, the State of New York, for injuries sustained by respondent, Helen C. Huntley, a patient at the State’s Hutchings Psychiatric Center, when she left the hospital premises, unsupervised, and jumped from the roof of a nearby parking garage. The Court of Claims determination in respondent’s favor, finding the evidence sufficient to establish appellant’s negligence, was unanimously affirmed by the Appellate Division.

Given the correct application of legal standards and affirmed findings of fact, our scope of review is limited. Where such findings are supported by evidence in the record, they are conclusive in this court. (Humphrey v State of New York, 60 NY2d 742.) Here, there was ample evidence to support the finding that appellant on the day of the accident failed in its duty to supervise its patient adequately, leading to her injury (see Martindale v State of New York, 269 NY 554; Horton v Niagara Falls Mem. Med. Center, 51 AD2d 152 [Simons, J.]). Apart from respondent’s history of mental instability and her depression, deterioration and unusual behavior shortly before the accident, there was evidence that, one day prior to her jump from the garage roof, respondent had communicated this specific suicide plan to a hospital staff member, and that this information was not transmitted to the staff psychiatrist so that he could consider what impact — if any — it should have on respondent’s privileges to leave hospital premises unsupervised. While a medical judgment might have been reached to continue respondent’s privileges, and an error in such judgment would not have given rise to liability for malpractice (Fiederlein v New York City Health & Hosps. Corp., 56 NY2d 573; Topel v Long Is. Jewish Med. Center, 55 NY2d 682), here, any opportunity to form a medical judgment was foreclosed by a failure to transmit the information, and no measures were taken to secure respondent’s physical safety.

Nor did the Appellate Division err in refusing to reduce the judgment, in accordance with CPLR 4010, by amounts respondent received from collateral sources. CPLR 4010 is limited to actions for medical malpractice, and is thus inapplicable to reduce this common-law negligence award.

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

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

Order affirmed, with costs.


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v Alex Levan, Appellant.
    Argued March 26, 1984;
    decided May 15, 1984

      POINTS OF COUNSEL

      William E. Hellerstein and Gary Divis for appellant.
    I. Und.er the Fourth Amendment and section 12 of article I of the New York State Constitution, the police, without a warrant and in the absence of exigent circumstances, may not enter a private dwelling to arrest its occupant solely because the occupant has opened his door in response to a neighbor’s knock. (.Payton v New York, 445 US 573; Steag-ald v United States, 451 US 204; Katz v United States, 389 US 347; United States v Watson, 423 US 411; Silverman v United States, 365 US 505; McDonald v United States, 335 US 451; United States v Johnson, 626 F2d 753; United States v Reed, 572 F2d 412, cert den sub nom. Goldsmith v

      United States, 439 US 913; United States v Santana, 427 US 38; Warden v Hayden, 387 US 294.) II. The search of appellant’s living room closet, the purpose of which was to find the murder weapon, and which was conducted after appellant had been arrested, at the threshold of his apartment, taken back into the apartment, handcuffed and made to face the living room wall, was not a search incidental to a lawful arrest and, therefore, violated the prohibitions against unreasonable searches and seizures of the Federal and New York State Constitutions. (Chimel v California, 395 US 752; New York v Belton, 453 US 454; United States v Mapp, 476 F2d 67; People v Fitzpatrick, 32 NY2d 499; Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230; Harrison u United States, 392 US 219; People v Sugden, 35 NY2d 453.) III. Appellant’s Federal and State constitutional rights to due process of law were violated by the trial court’s submission to the jury of criminal possession of a weapon in the third degree when it was neither charged in the indictment nor did it constitute a lesser included crime of criminal possession of a weapon in the second degree, the crime charged in the indictment. (<Jackson v Virginia, 443 US 307; Ex parte Bain, 121 US 1; People u Hentschal, 80 AD2d 943, 54 NY2d 740; People v Duncan, 46 NY2d 74; People v Iannone, 45 NY2d 589; People v Glover, 57 NY2d 61; People ex rel. Gray v Tekben, 57 NY2d 651; People v Green, 56 NY2d 427; People v Cintron, 67 AD2d 1007; People v Powell, 54 NY2d 524.)

      Robert M. Morgenthau, District Attorney {Emily Berger, Robert M. Pitler and Amyjane Rettew of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt. II. The seizure of a gun hidden in defendant’s shoe, found in a closet only feet from where he was standing, was proper. (Payton v New York, 445 US 573; United States v Santana, 427 US 38; People v Knapp, 52 NY2d 689; People v Martin, 50 NY2d 1029; United States v Johnson, 626 F2d 753, 457 US 537; United States v Reed, 572 F2d 412, cert den sub nom. Goldsmith v United States, 439 US 913; United States v Mason, 661 F2d 45; United States v Martinez-Gonzalez, 686 F2d 93; California v Ramey, 429 US 929; United States v Houle, 603 F2d 1297.) III. Defendant’s conviction for criminal possession of a weapon in the third degree was proper. CPeople v Nuccie, 57 NY2d 818; People v Ali, 36 NY2d 880; People v Stevenson, 31 NY2d 108; People v Ford, 91 AD2d 589; People v Graham, 89 AD2d 671; People v Logalbo, 76 AD2d 990; People ex rel. Tanner v Vincent, 44 AD2d 170, 36 NY2d 773; People ex rel. Wachowicz v Martin, 293 NY 361; People v Iannone, 45 NY2d 589; People v Spann, 56 NY2d 469.)
   OPINION OF THE COURT

Kaye, J.

Police may not, absent exigent circumstances or consent, enter a suspect’s home to make a warrantless arrest. In view of the findings of no exigent circumstances and no consent, the order of the Appellate Division affirming defendant’s conviction should be reversed, as his warrant-less arrest in his apartment was unlawful and the failure to suppress evidence seized in a search incident to. that arrest was error.

Defendant was indicted for murder in the second degree and for criminal possession of a weapon in the second degree. Those charges stemmed from the shooting of Phillip Keeler on a Manhattan street on April 28,1979. Defendant’s motion to suppress a weapon seized in a search of his apartment incident to his arrest was denied, and after a jury trial defendant was convicted of criminal possession of a weapon in the third degree and later sentenced to an indeterminate term of one to three years’ imprisonment.

The circumstances of defendant’s arrest are not in dispute. On May 2, 1979, an eyewitness identified Levan as the person who shot Keeler. The police went to defendant’s home, located on the second floor of an apartment building, on several occasions during the following week but did not find him there. Instructions were left with someone in the building to contact the police when defendant returned. On May 9, 1979 the police received a telephone call informing them that the defendant was at home, and two cars containing six policemen proceeded to defendant’s apartment. At no time during the week since defendant was identified did the police attempt to obtain either an arrest warrant or a search warrant, although it is undisputed that they had probable cause to do so.

When the police arrived at the defendant’s apartment building, two officers proceeded to the second floor and secreted themselves at points in the hallway near the entrance to defendant’s apartment. They then observed a woman (one of defendant’s neighbors) approach defendant’s apartment carrying a pot of food, ring the doorbell, and knock on defendant’s door. When defendant opened his door, the officers saw him and, with guns drawn, bypassed the woman, entered the apartment and arrested defendant inside.

A frisk of defendant turned up nothing. Defendant was then handcuffed and one officer, who had observed defendant glancing at several pairs of shoes in an open closet about six feet away, turned his attention to those shoes. In one of defendant’s shoes, he found a gun, later stipulated to be the gun involved in the homicide. By that time several officers had entered defendant’s apartment and were conducting a general search throughout, which led to the discovery of ammunition in a kitchen drawer.

The trial court denied defendant’s motion to suppress the gun seized in his apartment on the ground that the war-rantless entry into the apartment and arrest of defendant by the police was proper under People v Payton (45 NY2d 300), and that the seizure of the gun occurred in an incidental search valid under Chimel v California (395 US 752) and People v Fitzpatrick (32 NY2d 499). The gun was admitted into evidence, and the jury thereafter found defendant not guilty of murder or manslaughter but guilty of criminal possession of a weapon in the third degree.

After the verdict but before sentencing, the United States Supreme Court, in Payton v New York (445 US 573), reversed People v Payton (supra), and declared that section 177 of the New York Code of Criminal Procedure (predecessor to CPL 140.15, subd 4) was unconstitutional to the extent that it provided that the police could, absent consent or exigent circumstances, enter a person’s home to arrest the person without a warrant. At sentencing, defendant moved for reconsideration of the denial of his suppression motion, and to set aside the verdict on the ground that the police had no right to arrest him and search his apartment without a warrant. The trial court, observing that there was nothing in the record to show exigent circumstances, nonetheless denied defendant’s motion on the ground that the admission of the gun was harmless error because defendant had decided to take the stand and testify, as part of the defense, that he had possessed the gun. Judgment was entered convicting defendant of criminal possession of a weapon in the third degree and sentencing him to a term of one to three years.

The Appellate Division affirmed by a divided court. The majority concluded that Payton v New York (supra) was not applicable to this case, and that defendant’s arrest in his apartment was proper under United States v Santana (427 US 38) because, once defendant opened his door in response to his neighbor’s knock, he was “clearly visible to the police and to anyone else who might be in the public hallway” and therefore “ ‘not in an area where [he] had any expectation of privacy’ ”. (91 AD2d, p 385.) We now reverse.

Under Payton v New York (445 US 573, supra) it is clear that, absent consent or exigent circumstances, no private dwelling may be entered by the police to arrest its occupant if an arrest warrant has not been obtained. The proscription against entry of a home is the key to Payton. Because “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” (United States v United States Dist. Ct., 407 US 297, 313), defendant has no burden to show he had an “expectation of privacy” in his apartment. Both the Fourth Amendment and section 12 of article I of the New York Constitution expressly provide that “the right of the people to be secure in their * * * houses * * * shall not be violated”.

It is clear that in this case defendant was arrested in his apartment and that the police forcibly entered without a warrant and without consent. The fact that the police may have been able to see defendant when he opened his door in response to his neighbor’s knock does not affect the constitutional prohibition against such entry. In Riddick v New York (445 US 573, supra), the companion case to Payton, the police prior to entering Riddick’s apartment observed Riddick through a door opened by another occupant to the apartment. The Supreme Court did not find that fact to be significant, and found that the police had no more authority to enter Riddick’s apartment to arrest him than they did Payton’s.

United States v Santana (427 US 38, supra), relied upon by the majority below and by the People, concerned a different situation. There, the defendant was seen by the police while outside her home, holding what they believed to be destructible evidence. As the police approached, she retreated into the vestibule of her home and the police, in hot pursuit, followed her in and arrested her there. The court noted that “a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson [United States v Watson, 423 US 411], by the expedient of escaping to a private place.” (427 US, p 43.) Santana furnishes no support for the actions of the police in this case, given the Supreme Court’s pronouncement in Payton that “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” (445 US, p 590.)

The error in failing to suppress the gun seized in the search incident to defendant’s unlawful arrest was not harmless. As the error here is of constitutional dimension, the People must show “that there is no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt”. (People v Crimmins, 36 NY2d 230, 237.) It cannot be shown beyond a reasonable doubt that the introduction of the weapon and of testimony that it was found in defendant’s home did not contribute to defendant’s conviction on the weapons possession charge. While it is true, as the trial court pointed out, that defendant did take the stand and did, as part of a justification defense to the murder charge, admit possessing a weapon, it is reasonable to conclude that defendant did so in order to overcome the impact of the illegally seized evidence, and therefore that testimony is tainted by the same illegality that rendered the evidence itself inadmissible. (Harrison v United States, 392 US 219, 223.)

The arrest of defendant was improper. The police had neither a warrant nor consent to enter defendant’s apartment. There was an affirmed finding that no exigent circumstances existed; the police themselves cannot by their own conduct create an appearance of exigency. The gun seized in defendant’s apartment and testimony as to its discovery there, as fruits of that unlawful arrest, should have been suppressed, and their admission was not harmless error. Accordingly, the order of the Appellate Division should be reversed, and the indictment dismissed.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer and Simons concur.

Order reversed, motion to suppress granted and indictment dismissed.

      . The court, without request, charged the jury on the offense of criminal possession of a weapon in the third degree (Penal Law, § 265.02, subd [4]) as a lesser included offense of the indicted offense of criminal possession of a weapon in the second degree (Penal Law, § 265.03). In view of the result reached today, we need not consider whether the former is a lesser included offense of the latter, or whether defendant preserved his right to contest the charge by proper objection.

      . The People did not introduce the ammunition the police found in the kitchen. Since the arrest was unlawful, we do not reach the issue of whether the search would have been proper as a search incident to a lawful arrest.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Derek John Milaski, Appellant.
    Argued March 23, 1984;
    decided May 17, 1984

      POINTS OF COUNSEL

      John L. Perticone, Acting Public Defender (Thomas A. Saitta of counsel), for appellant.
    I. Appellant’s admissions and the shotgun seized from his car should have been suppressed as the products of an illegal seizure. (People v Cantor, 36 NY2d 106; Brown v Illinois, 422 US 590; People v De Bour, 40 NY2d 210; People v Sobotker, 43 NY2d 559; People v Ingle, 36 NY2d 413; People v Rodney P. [Anonymous], 21 NY2d 1; People v Carrasquillo, 54 NY2d 248; People v Duncan, 75 AD2d 823; People v Engle, 74 AD2d 583; People v Taylor, 76 AD2d 892.) II. The shotgun and appellant’s subsequent admissions should have been suppressed as the products of an illegal search. (Coolidge v New Hampshire, 403 US 443; People v Spinelli, 35 NY2d 77; People v Smith, 42 NY2d 961; People v Price, 54 NY2d 557; People v Cruz, 34 NY2d 362; People v Sciacca, 78 AD2d 545; People v Martin, 50 NY2d 1029.)

      Patrick H. Mathews, District Attorney {Joann Rose Parry of counsel), for respondent.
    I. The issues raised by appellant are beyond the scope of review of this court. {People v Harrison, 57 NY2d 470; People v McRay, 51 NY2d 594; People v Alexander, 37 NY2d 202; People v Wharton, 46 NY2d 924; People v Rizzo, 40 NY2d 425.) II. The trial court properly denied appellant’s motion to suppress the property seized and the statement obtained from him by the State Police. (People v De Bour, 40 NY2d 210; Harris v United States, 390 US 234; Coolidge v New Hampshire, 403 US 443; United States v Lee, 274 US 559; Brown v Illinois, 422 US 590.)
   OPINION OF THE COURT

Jones, J.

We hold as a matter of law that in the circumstances disclosed in this record defendant was illegally detained and accordingly that the shotgun seized in consequence of that detention should have been suppressed as well as statements subsequently obtained from him in direct exploitation of the seizure of the shotgun.

About 4:00 a.m. on October 29, 1981, State Troopers Joseph Micilcavage and William Phillips were on a routine patrol during which they stopped to check a vehicle which was parked with its lights out in a parking area at the end of a dead-end road. The troopers regularly checked this area because it had been the scene of a number of criminal offenses, including drug use, assault, disorderly conduct and vandalism. After checking the parked vehicle Trooper Micilcavage had returned to their then unlighted troop car and Trooper Phillips was talking to the person behind the wheel of the parked car when defendant drove an automobile into the parking area at a fairly high rate of speed; As he approached the troopers’ car, defendant turned his lights off and then back on when he was within 50 or 60 feet of the troopers. He then stopped abruptly and began to back up. Trooper Micilcavage yelled to Trooper Phillips who had apparently already seen the car and who was running toward it. Trooper Phillips yelled toward the car, and defendant either put the car in park or put on the emergency brake, jumped out of the car leaving the door open and approached the troopers.

Trooper Phillips asked defendant what he was doing and requested that he produce his license and registration. Defendant said that he was looking for a friend. When Phillips advised defendant that the parking lot was closed and nobody was there, defendant said he had driven there to urinate. In the interim, Trooper Micilcavage had checked the vehicle to see if there was anyone else in it. Defendant produced his driver’s license but could not provide a registration for the car, explaining that the car belonged to a friend, Ricky Spencer, and that he, defendant, was in the area to return it to him. At Trooper Phillips’ direction, defendant went over to the car to look in the glove compartment for the registration. Defendant tried to shut the door but Phillips prevented him from doing so, shining his flashlight inside to watch as defendant searched through the glove compartment for the registration. Trooper Micilcavage then went back to run a registration check on the vehicle inasmuch as defendant could not produce a registration.

Trooper Phillips continued to question defendant as to where he lived and what he was doing in the parking area. According to Phillips, defendant appeared nervous during the questioning and gave inconsistent or suspicious answers, but the trooper admitted that he had pursued questions in an effort to fluster him. Phillips had observed personal household items in the car and defendant explained that he was moving to his girlfriend’s house.

Trooper Phillips let defendant go to an area to urinate and kept an eye on him in case he tried to drop anything. The trooper then had defendant stand by the car and not move while he went over and looked to see if defendant had dropped anything, but nothing was found. Phillips had defendant empty out his pockets on the front of the car because he thought defendant was acting suspicious. Trooper Phillips also conducted a pat-down frisk of defendant. No contraband or incriminating evidence was found in these searches. Trooper Micilcavage admitted that defendant did not exhibit any signs that he was dangerous but Trooper Phillips thought defendant might be dangerous because he was acting nervous even though Phillips acknowledged that defendant never made any threatening moves or statements. At some point, defendant asked Trooper Phillips what right he had to search him and the trooper replied, “something to the effect of the right of self-preservation.”

Meanwhile, Trooper Micilcavage had completed the registration check on the vehicle which confirmed defendant’s statement that it was registered to Ricky Spencer. Micilca-vage also received a radio transmission that Spencer was known to be a burglar and had been arrested on burglary charges in the past. There was no indication, however, that the car had been stolen or improperly registered or that defendant was in any way involved in criminal activity. Micilcavage exited the troop car, went over to Phillips and conveyed to him the information he had received. Phillips continued to question defendant while Micilcavage walked around the vehicle to the driver’s side. Micilcavage then shined his flashlight through the open door looking for drugs or other contraband. On that sweep of his flashlight Micilcavage noticed a shotgun which was partially wrapped in a towel or shirt and was lying on the floor under the dashboard where a driver’s legs would be positioned. The trooper then reached in, removed the shotgun and checked to determine whether it was loaded, which it was not. Micilcavage took the gun over to Phillips who radioed in the serial number for a “special file check”. The check came back negative, meaning that there was no record that the weapon had been stolen or was otherwise wanted by the police.

Micilcavage asked defendant if the weapon was his and where he had obtained it. Defendant replied that it had been given to him as a gift by his father and questioned the troopers’ authority, saying that he felt he was being detained too long and that he wanted to go. Defendant was asked if he could produce papers to show that the gun was his and he said that he believed his father had papers showing his ownership. An additional radio transmission then came in indicating that defendant was a friend of Spencer, that defendant and Spencer “hung together”, and that defendant had previously been arrested for a burglary. In order to test whether defendant was familiar with the criminal justice system, Trooper Micilcavage asked defendant if he had a “PO”, an abbreviation for parole or probation officer. Defendant identified his probation officer and divulged some of the terms of his probation. Micilca-vage then said, “Well, if you’re a felon and are in possession of that shotgun, you’ve committed a crime.” Defendant responded that he had been arrested for a felony but that it had been taken care of. He further explained that he had talked to his probation officer regarding whether he could possess the gun and that the officer was unsure about it but was going to check on it for him. Trooper Micilcavage then gave defendant his constitutionally required preinterrogation warnings. The gun was confiscated and defendant was advised that he would be contacted and would be asked to bring in papers establishing its ownership. The troopers issued an equipment violation ticket to defendant and let him go. They then followed defendant for some distance to his girlfriend’s house.

Several days later, on November 2, 1981, Investigator John Daniel Johnson went to the home of defendant’s girlfriend to interview defendant. It had by then been determined that the shotgun had been stolen in a burglary which was one of a series of burglaries, and a Bobby Hammond had disclosed that defendant “was traveling with Mr. Spencer”. Defendant’s girlfriend at first informed Investigator Johnson that defendant was not there; however, after Johnson told her that he thought defendant was in the home she let him in and defendant agreed to speak with Johnson about the burglary “unofficially” in a “man-to-man” conversation. Defendant voluntarily went outside to the investigator’s car where, during a conversation with Johnson, he admitted his involvement in the burglary. Defendant was then permitted to go back into the house to talk with his girlfriend, after which he agreed to accompany Johnson to the police station. At the station, Johnson spoke over the phone with the Broome County District Attorney who promised that no further charges would be brought against defendant if he provided a written statement about the burglary. Thereafter, defendant signed such a statement, also admitting the disposal of numerous guns stolen in other burglaries.

By indictment dated December 18, 1981, defendant was charged with burglary in the second degree. Defendant moved to suppress the shotgun which had been seized and the admission which he had made, arguing, inter alia, that they were products of an illegal seizure of his person and an illegal search of the car. A suppression hearing was conducted on March 4, 1982.

County Court denied the motion in an oral opinion on March 8, 1982. The court found that the inquiry made by Troopers Phillips and Micilcavage on October 29, 1981 “was on reasonable grounds and reasonably conducted, inasmuch as they were appropriately at the parking lot at 3:00 or 4:00 in the morning, that the defendant approached and stopped his car, got out of it, approached the troopers and the extent and nature of their inquiry at that time was reasonable and appropriate to all the circumstances.” The court ruled that, “As the discussion between the troopers and the defendant proceeded, in light of statements made by him which were contradictory and apparently evasive, as well as his physical condition as observed by the troopers, the nature of the inquiry made by them increased and was done so on a reasonable basis and for reasonable cause.” The court further held that Trooper Micilcavage’s use of a flashlight in discovering the shotgun did not require suppression and ruled that the gun had been properly observed in plain view because the trooper had a right to stand outside the car and make a “general look” inside. The court also found that during the course of the inquiry defendant was not in custody or under arrest. Accordingly, the motion to suppress was denied. Defendant then pleaded guilty to attempted burglary in the second degree.

On defendant’s appeal, the Appellate Division affirmed, with two Justices dissenting. That court ruled that there was reasonable suspicion to inquire of defendant as to his identity and his reason for being in the parking area based on his presence in a known crime area at 4:00 a.m., his flashing the car lights off as if signaling and his backing the car up when he saw the troopers, notwithstanding the facts that he truthfully disclosed the car’s ownership, that he had no contraband on his person and that he was not participating in criminal activity when first observed by the troopers. The court thought it significant that defendant never asked to leave and that there was no indication of forcible detention. According to the court, the nervous attitude of defendant, the evasiveness of some of his answers and the household goods observed in the car permitted the troopers to check out the vehicle, and thus the degree of interference by the troopers from its inception was reasonably related in scope to the circumstances which justified its initiation. Although the body search of defendant may have been unreasonable in the circumstances, the Appellate Division found that it could be disregarded because it revealed nothing and it did not intimidate defendant in any way. The court further ruled that the shotgun was properly seized because it had been observed in plain view from outside the open car door and there was no showing that the troopers had stopped defendant in order to search the car. Consequently, the court also upheld the admissibility of defendant’s statements.

Defendant has appealed to our court by leave of a Justice of the Appellate Division.

If it be taken that the troopers initiated the original confrontation, we agree with the courts below that they had reasonable suspicion in the circumstances sufficient to warrant their stopping defendant and asking for his license and registration and an explanation of his conduct.

The suppression testimony, however, compels the conclusion as a matter of law that during the course of the inquiry defendant was detained and was not free to leave. The testimony disclosed that, when defendant got back in the car to look in the glove compartment for the registration, he tried to close the door but Trooper Phillips prevented him from doing so. Phillips testified that he had “let” defendant walk to an area to urinate, that he kept an eye on defendant in case defendant tried to drop anything and that he had defendant go back and stand by the car and not move while he went over to look in the area where defendant urinated to see if defendant had dropped anything. Phillips then had defendant empty his pockets out on the front of the car and the trooper frisked him. During the course of the confrontation, defendant was questioned extensively by Phillips, sometimes in a conceded effort to fluster him. During the course of the questioning defendant asked “What have I done?” and later asked what right the troopers had to search him. By their own testimony, the troopers at the termination of all their questioning of defendant “decided to let him go”. All of this evidence compels the conclusion that defendant was detained and was not free to leave (cf. Florida v Royer, 460 US 491, 493 [plurality opn]; People v De Bour, 40 NY2d 210, 216).

Nothing disclosed in the course of the troopers’ initial inquiry of defendant gave them any reason to hold defendant for more than the limited detention permitted on the basis of reasonable suspicion. The two different reasons given by defendant for his presence in the parking area, although at variance, along with defendant’s nervousness and other inconsistencies in his statements, provided no indication of criminality on his part which would .have justified further detention. The presence of personal household items in the vehicle, nonindicative in itself, was explained by defendant who stated that he was in the process of moving to his girlfriend’s home. That the officers received a radio transmission indicating that Spencer, who owned the car, was known to be a burglar was no evidence of criminal activity on defendant’s part and gave the officers no reason to detain him further (cf. Sibron v New York, 392 US 40, 64).

Once defendant had explained his conduct, produced his license, and identified the owner of the car, and such ownership had been confirmed by the radio check, the troopers had no justification to detain defendant longer. At this point the inquiry justified by the initiating circumstances had been exhausted, and no evidence of criminal conduct on defendant’s part had been discovered.

Inasmuch as the gun was discovered in consequence of defendant’s illegal continued detention, it should have been suppressed (cf. People v Allende, 39 NY2d 474, 477); inasmuch as the statements of defendant were obtained from him four days later in direct exploitation of the illegal seizure of the shotgun and the discovery of its history, these statements, too, should have been suppressed as the product of defendant’s unconstitutional detention. (Cf. Brown v Illinois, 422 US 590.)

For the reasons stated, the order of the Appellate Division should be reversed, defendant’s plea and conviction vacated, the shotgun and defendant’s statements suppressed, and the action remitted to Broome County Court for further proceedings on the indictment.

Chief Judge Cooke and Judges Jasen, Wachtler, Meyer, Simons and Kaye concur.

Order reversed, plea and conviction vacated, the shotgun and defendant’s statements suppressed, and case remitted to Broome County Court for further proceedings on the indictment.

      . The determination in this case does not properly call for consideration of the so-called “plain view” legal doctrine — that suppression is not required where the police officer “had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused” (Coolidge v New Hampshire, 403 US 443, 466). The fact that an object is discovered because it is openly visible does not automatically trigger the requirements of the “plain view” doctrine and indeed may often involve no search at all.

      . (See n 1, p 154, supra.)

      . Although the trooper’s actions turned up no contraband or incriminating evidence, they show that defendant was detained at ⅛⅛ point and not free to leave.