author: Per Curiam

text:
    In the Matter of Colt Industries, Inc., Appellant, v Finance Administrator of the City of New York et al., Respondents. Robert Abrams, as Attorney-General of the State of New York, Intervenor-Respondent. In the Matter of Equitable Life Assurance Society of the United States, Appellant, v Finance Administrator of the City of New York et al., Respondents. Robert Abrams, as Attorney-General of the State of New York, Intervenor-Respondent.
    Argued November 18, 1981;
    decided January 7, 1982

      POINTS OF COUNSEL

      Donald N. David and Benjamin Newman for Colt Industries, Inc., appellant.
    I. Public interest demands that the city be compelled to adhere to the statutory standard of assessment, i.e., full or actual market value. (Fernandez v Wiener, 326 US 340; Carmichael v Southern Coal Co., 301 US 495; Maxwell v Bugbee, 250 US 525; Hagar v Reclamation Dist. No. 108, 111 US 701; Allen v Board of Assessors of Town of Mendon, 57 AD2d 1036; Matter of Batavia Enterprises v Assessor of Town of Batavia, 72 AD2d 912; Grant Co. v Srogi, 71 AD2d 457, 52 NY2d 496; Matter of Rokowsky v Finance Administrator of City of N. Y., 41 NY2d 574; Mercantile Nat. Bank of City of N. Y. v Mayor of City of N. Y., 172 NY 35; People ex rel. Trust Co. v Feitner, 51 App Div 178.) II. The real property tax system in the City of New York is universally recognized as haphazard, inequitable and unfair. (Matter of Rokowsky v Finance

      Administrator of City of N.Y., 41 NY2d 574.) III. Section 166-1.0 of the Administrative Code does not authorize a fractional, classified, section-wide assessment system. (Mercantile Nat. Bank of City of N. Y. v Mayor of City of N. Y., 172 NY 35; People ex rel. Stewart v Feitner, 95 App Div 481; Matter of Rokowsky v Finance Administrator of City of N.Y., 41 NY2d 574.) IV. Section 166-1.0 of the Administrative Code is not constitutional if read as creating a classified property tax system. (Matter of Mollenhauer, 257 App Div 286; People ex rel. Hatch v Reardon, 184 NY 431; Genet v City of Brooklyn, 99 NY 296; Matter of Mooney v Cohen, 272 NY 33; Matter of Levine v Whalen, 39 NY2d 510; Matter of Small v Moss, 279 NY 288; Gautier v Ditmar, 204 NY 20; Matter of United States Steel Corp. v Gerosa, 7 NY2d 454; Weissinger v Boswell, 330 F Supp 615; Matter of Rego Props. Corp. v Finance Administrator of City of N. Y., 102 Misc 2d 641.) V. If section 307 of the Real Property Tax Law is applicable to the City of New York, it cannot be read as retroactively establishing a classified tax system applicable to the instant proceedings. (Matter of Rego Props. Corp. v Finance Administrator of City of N. Y., 102 Misc 2d 641.) VI. Subdivision 3 of section 720 of the Real Property Tax Law is invalid as applied to New York City because it effectively deprives a taxpayer of any remedy for inequality of assessment. (Gibbes v Zimmerman, 290 US 326; Board of Comrs. of Excise of City of Auburn v Merchant, 103 NY 143; Matter of Johnson v Town of Haverstraw, 102 Misc 2d 923; Matter of Pepsi-Cola Co. v Tax Comm. of City of N.Y., 19 AD2d 56; Matter of Property Portfolio 182 Corp. v Tax Comm. of City of N. Y., 58 AD2d 650; Matter of Washington Apts. v Board of Assessors of County of Nassau, 43 AD2d 942; Mobil Oil Corp. v Tax Comm. of City of N. Y., 60 AD2d 910; Dutton Lbr. Corp. v Van Ness Lbr. Corp., 54 AD2d 723; Johnson v Equitable Life Assur. Soc. of U.S., 16 NY2d 1067.) VII. The 1979 amendment to subdivision 3 of section 720 of the Real Property Tax Law represents an impermissible intrusion of the court’s fact-finding function. (Sackler v Sackler, 15 NY2d 40; Board of Comrs. of Excise of City of Auburn v Merchant, 103 NY 143; Howard v Moot, 64 NY 262; Baldwin v Standard Acc. Ins. Co., 237 App Div 334; People

      ex rel. Dixon v Lewis, 249 App Div 464; Guth Realty v Gingold, 34 NY2d 440; 860 Executive Towers v Board of Assessors of County of Nassau, 53 AD2d 463, affd sub nom. Matter of Pierre Pellaton Apts, v Board of Assessors of County of Nassau, 43 NY2d 769; Matter of O’Brien v Assessor of Town of Mamaroneck, 20 NY2d 587; Matter of Lawrence Investing Co. v Board of Review of Dept. of Assessment of Town of Eastchester, 86 Misc 2d 642.) VIII. Appellant’s motion for discovery of the special sales data listings should have been granted. (Matter of Tartaglia v McLaughlin, 190 Misc 266, 273 App Div 821, 297 NY 419; Fields v Taylor, 274 App Div 810; People v Krull, 18 Misc 2d 1027; Matter of 749 Broadway Realty Corp. v Boyland, 1 Misc 2d 575, 1 AD2d 819, 3 NY2d 737; Cooke v Doge, 168 Misc 561.)

      Daniel S. Greenfeld, Gale G. Moscow and Robert J.

      Kipnees for The Equitable Life Assurance Society of the United States, appellant. I. The State Board of Equalization and Assessment rate which measures the aggregate ratio of assessed values to full market values of real property on a whole-roll, city-wide basis is an appropriate evidentiary basis for determining inequality of assessment in a New York City real estate tax review proceeding. (Matter of Rego Props. Corp. v Finance Administrator of City of N. Y., 102 Misc 2d 641; Matter of Rokowsky v Finance Administrator of City of N. Y., 41 NY2d 574; People ex rel. Stewart v Feitner, 95 App Div 481; Greyhound Corp. v Mt. Hood Stages, 437 US 322; Blue Chip Stamps v Manor Drug Stores, 421 US 723; People ex rel. American Sugar Refining Co. v Sexton, 274 NY 304; People ex rel. O’Neill v Purdy, 188 App Div 485; People ex rel. Savory, Inc. v Plunkett, 295 NY 180; Mercantile Nat. Bank of City of N. Y. v Mayor of City of N. Y., 172 NY 35.) II. The State Board of Equalization and Assessment rate is admissible and probative evidence of inequality of assessment in a real estate tax review proceeding. (Matter of O’Brien v Assessor of Town of Mamaroneck, 20 NY2d 587; Guth Realty v Gingold, 34 NY2d 440; 860 Executive Towers v Board of Assessors of County of Nassau, 53 AD2d 463.) III. The 1979 amendment to subdivision 3 of section 720 of the Real Property Tax Law insofar as it purports to preclude utilization of the State Board of Equalization and Assessment rate as evidence of inequality is unconstitutional as a denial of due process and equal protection of the law. (Guth Realty v Gingold, 34 NY2d 440; 860 Executive Towers v Board of Assessors of County of Nassau, 53 AD2d 463, affd sub nom. Matter of Pierre Pellaton Apts, v Board of Assessors of County of Nassau, 43 NY2d 767; C.H.O.B. Assoc. v Board of Assessors of County of Nassau, 45 Misc 2d 184, 22 AD2d 1015,16 NY2d 779; Board ofComrs. of Excise of City of Auburn v Merchant, 103 NY 143; Landay v United States, 108 F2d 698, 309 US 681; Hass v United States, 93 F2d 427; People ex rel. Clark v Gilchrist, 243 NY 173; People ex rel. Warren v Carter, 109 NY 576; Matter of Furey v Graves, 148 Misc 785.)

      Allen G. Schwartz, Corporation Counsel (Leonard Olarsch, Morris Einhorn, Reed G. Schneider and Gary Schuller of counsel), for respondents.
    I. Cognizant that to preserve the diverse economy of the Nation’s largest city its tax system must reflect the capacity of income-producing and non-income-producing property to defray the cost of government. The Legislature has provided that proof of discrimination in distributing that cost be essentially confined to property of like character. (Matter of Hellerstein v Assessor of Town of lslip, 37 NY2d 1; Sonmax, Inc. v City of New York, 89 Misc 2d 945, 43 NY2d 253; Matter of Board of Water Supply of City of N.Y., 277 NY 452; People ex rel. Marlborough Hotel Co. v Feitner, 33 Misc 293; Mercantile Nat. Bank of City of N. Y. v Mayor of City of N. Y., 172 Misc 35; People ex rel. Bronx Gas & Elec. Co. v Feitner, 43 App Div 198; People ex rel. Sutphen v Feitner, 45 App Div 542; People ex rel. Broadway Realty Co. v Feitner, 61 App Div 156; People ex rel. Zollikoffer v Feitner, 74 App Div 130, 172 NY 618; People ex rel. Bishop v Feitner, 116 App Div 452.) II. Even if section 166-1.0 were held to require proof of discrimination in relation to all properties in the city, requiring that it be proved in relation to “property of the same major type” (Real Property Tax Law, § 307) and eliminating the State Board of Equalization and Assessment’s rate as evidence (§ 720, subd 3) represent a rational legislative response to threatened fiscal bankruptcy of localities pending transition to full value assessments. Petitioner has acquired no vested right to continued availability of the State Board of Equalization and Assessment’s rate in proof of discrimination. It is fatuous to believe, given the unsettled history of the equalization rate, that any property owner would have ordered his affairs or placed any reliance on the possibility of obtaining a refund on that basis. (Defiance Milk Prods. Co. v Du Mond, 309 NY 537; Usery v Turner Elkhorn Min. Co., 428 US 1; Matter of Chrysler Props, v Morris, 23 NY2d 515; Matter of Neuner v Weyant, 63 AD2d 290, 48 NY2d 975; Matter of Slewett & Farber v Board of Assessors of County of Nassau, 80 AD2d 186; Press v County of Monroe, 50 NY2d 695; New York Public Interest Research Group v Board of Assessment Review of City of Albany, 104 Misc 2d 128; United States v Heinszen & Co., 206 US 370; Rafferty v Smith, Bell & Co., 257 US 226; Tiaco v Forbes, 228 US 549.) III. Special Term properly rejected petitioner’s attack on section 1146-15.0 of the Administrative Code and correctly denied petitioner’s motion to discover confidential sales information from tax returns. (Matter of New York State Dept, of Taxation & Fin. v New York State Dept, of Law, 44 NY2d 575; Matter of Manufacturers Trust Co. v Browne, 269 App Div 108, 296 NY 549; Matter of Bakers Mut. Ins. Co. of N. Y. [Department of Health of City of N. Y.] 301 NY 21; Caravaggio v Retirement Bd. of Teachers’ Retirement System of City of N. Y., 36 NY2d 348.)

      Robert Abrams, Attorney-General (John M. Farrar and Shirley Adelson Siegel of counsel), for intervenor-respondent.
    I. The provisions of the Administrative Code (§ 166-1.0, subd b, par 3) and subdivisions 3, 4 and 5 of section 307 of the Real Property Tax Law, as procedural statutes, create no constitutional infirmity. Moreover, the inequality petitioner in the City of New York has ratified fractional assessment practices whether “generic” or by “class”. (Matter of Finnegan v Cohen, 275 NY 432; Schielcrawt v Moffett, 294 NY 180; Matter of Slewett & Farber v Board of Assessors of County of Nassau, 80 AD2d 186; Matter of Hellerstein v Assessor of Town of lslip, 37 NY2d 1; Pollitz v Wabash R.R. Co., 207 NY 113; Hechter v New York Life Ins. Co., 46 NY2d 34; Matter of United Paper Mach. Corp. v Di Carlo, 14 NY2d 814; Matter of Zimmer

      man v Cohen, 236 NY 15; Matter of Dudley v Kerwick, 52 NY2d 542.) II. Even if considered taxing statutes neither section 166-1.0 (subd b, par 3) of the Administrative Code nor subdivisions 3, 4 and 5 of section 307 of the Real Property Tax Law violates constitutional principles. (Matter of Slewett & Farber v Board of Assessors of County of Nassau, 80 AD2d 186; New York Steam Corp. v City of New York, 268 NY 137; People ex rel. Hatch v Reardon, 184 NY 431, 204 US 152; Sonmax, Inc. v City of New York, 89 Misc 2d 954, 43 NY2d 253; People v Cook, 34 NY2d 100; San Antonio School Dist. v Rodriguez, 411 US 1; Salsburg v Maryland, 346 US 545; Matter of Long Is. Light. Co. v State Tax Comm., 45 NY2d 529; Usery v Turner Elkhorn Min. Co., 428 US 1; Teeval Co. v Stern, 301 NY 346.) III. The 1979 amendment to subdivision 3 of section 720 of the Real Property Tax Law, if applicable in the instant proceeding, should be applied in accordance with the legislative intent to bar use of the State rate as evidence of ratio. (Matter of Slewett & Farber v Board of Assessors of County of Nassau, 80 AD2d 186; Sheilcrawt v Moffett, 294 NY 180; Board of Comrs. of Excise of City of Auburn v Merchant, 103 NY 143; Louisville & Nashville R.R. v Melton, 218 US 36; Mobile, J. & K.C.R.R. v Turnipseed, 219 US 34; Farrington v Pinckney, 1 NY2d 74; Matter of Boardwalk & Seashore Corp. v Murdock, 286 NY 494; Bradford v County of Suffolk, 257 App Div 777; United States v Heinszen & Co., 206 US 370; Germania Sav. Bank, Kings County v Village of Suspension Bridge, 159 NY 362.)
   OPINION OF THE COURT

Per Curiam

In Matter of Colt Inds. v Finance Administrator of City of N. Y., the order of the Appellate Division should be modified by deleting therefrom all declarations as to the constitutionality or applicability of former section 307 and subdivision 3 of section 720 of the Real Property Tax Law and by reversing so much of the order as denied petitioner’s motion for discovery of “special sales data listings” and remitting that motion to Supreme Court for further consideration and disposition in light of our decision in this case. As so modified, the order of the Appellate Division should be affirmed and the consolidated proceedings remitted to Supreme Court. The question certified is answered in the negative.

In Matter of Equitable Life Assur. Soc. of U. S. v Finance Administrator of City of N. Y., the order of the Appellate Division should be modified to the extent of granting petitioner’s motion to dismiss those defenses which rely on the New York City Administrative Code’s purported authorization of a classified system of assessment. As so modified, the order of the Appellate Division should be affirmed. The question certified should be answered in the negative.

Section 166-1.0 of the Administrative Code of the City of New York governs the procedure for review of tax assessments in the City of New York. By its terms, taxpayers may challenge the assessed valuation of their property on the grounds that it is illegal, that it overvalues the property, or that “the assessment is erroneous by reason of inequality.” That section further provides that inequality may be proven by showing that the assessment was “made at a higher proportionate valuation than the assessment of other real property of like character in the same ward or section, or other real property on the assessment rolls of the city for the same year”. To hold, as the courts below have, that this procedural provision is legislative authorization for a classified system of assessments in the City of New York improperly expands the scope of the section. In these proceedings to challenge tax assessments on the ground of inequality, we have no occasion to reach and, therefore, do not address the contentions of the parties with respect to the methods or systems of assessments in New York City. Our attention is focused on assertions of inequality of actual assessments whatever the means or basis on which they were made. Thus, we hold that this section authorizes taxpayers who challenge the assessments of their real property to present proof of inequality based on either or both of two theories — that the particular assessment “has been made at a higher proportionate valuation than the assessment of other real property of like character in the same ward or section”, or that the assessment “has been made at a higher proportionate valuation than the assessment of *** other real property on the assessment rolls of the city for the same year.” Thus, proof may be introduced to establish inequality with respect to property of similar character in the same ward or section or with respect to the city-wide assessment rolls. In continuing this proceeding, petitioner should be allowed to introduce either or both types of proof.

There remains the question whether, if it is sought to establish inequality with respect to city-wide assessment rolls, State equalization rates may be introduced. (Cf. Matter of Rokowsky v Finance Administrator of City of N. Y., 41 NY2d 574; Guth Realty v Gingold, 34 NY2d 440.) Legislative action taken over the past few years to restrict the use of such proof and considered by the courts below expired on October 30, 1981 and accordingly now has no application to this proceeding.

On December 3, 1981, however, the Legislature passed S-7000A over the Governor’s veto (L1981, ch 1057). Section 7 of that bill contains a new subdivision 3 of section 720. This new legislation contains no express provision for retroactive application as did the former law (L 1979, ch 126, § 4; L 1979, ch 127; § 3); it provides only, in section 17, that “this act shall take effect immediately”. Accordingly to the extent that it is otherwise appropriate, it applies to proceedings pending on December 3, 1981.

We hold that this new subdivision 3 now applies to these proceedings. Although the proceedings were commenced prior to the enactment of S-7000A, no evidentiary hearings have yet been held or interlocutory determinations made as was the case in Matter of Slewett & Farber v Board of Assessors of County of Nassau (54 NY2d 547 [decided herewith]). Accordingly, when such evidentiary hearings are held in these cases on remittal following this appeal, among other considerations to be taken into account in rulings with respect to the admissibility of evidence will be the provisions of new subdivision 3 of section 720.

We further consider, on the basis of postargument briefs submitted to this court after the enactment by the Legislature of S-7000A, the constitutionality of the new subdivision 3 of section 720 insofar as it is applicable to the litigation now before us. As did former subdivision 3, this section governs what evidence is admissible on the issue of whether an assessment is unequal. Data on selected parcels and actual sales are admissible as evidence to show an unequal assessment in all assessing units. Use of the State equalization rate, however, is limited to “all assessing units other than special assessing units.” The effect of this provision is to foreclose the use of State equalization rates in-this type of proceeding in the City of New York and in Nassau County.

Petitioners claim that this is a restriction based on population and geographic area which violates their right to equal protection of the laws. They further claim that the excessive cost of proving a claim of unequal assessment associated with the remaining two methods of proof essentially bars them from seeking any redress and, therefore, constitutes a violation of their due process rights. Recognizing that subdivision 3 of section 720 is procedural in nature, we hold this section of the Real Property Tax Law, as enacted on December 3, 1981, to be constitutional.

The core of petitioners’ equal protection claim is that the Legislature, by allowing the use of State equalization rates as proof of the ratio between assessed and full value in all parts of the State but the City of New York and Nassau County, makes an impermissible distinction between geographic areas of the State. “Equal protection does not require territorial uniformity of law within a State (Salsburg v. Maryland, 346 U. S. 545 [rules of evidence in prosecutions for gambling offenses]; Missouri v. Lewis, 101 U. S. 22 [access to appellate courts]).” (Matter of Rosenthal v Hartnett, 36 NY2d 269, 274.) It has long been the rule that the State Legislatures may make such geographic distinctions without denying any person equal protection of the laws. The Supreme Court in Missouri u Lewis (101 US 22, 31) stated: “If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law and its method of procedure for the rest of the State, there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the Fourteenth Amendment, be a denial to any person of the equal protection of the laws.”

The distinction made by this legislation, although not based on geographic factors, is neither impermissible nor unreasonable; rather, the distinction is based on size of population within municipal units. To strike down this provision, it must be shown that the Legislature acted unreasonably — that is, that the Legislature did not have a rational basis for creating such a distinction.

The Legislature had a rational basis for designating the City of New York and Nassau County special assessing units and restricting the admissibility of State equalization rates in such units. This legislation which was designed to overrule this court’s decision in Matter of Heller-stein v Assessor of Town of Islip (37 NY2d 1), which required full value assessment for all property, recognized the unique nature of those communities with their high density of population and diversity of property.

Petitioners further contend that by restricting the use of State equalization rates as proof of the ratio between assessed and full value in special assessing units, their right to due process of the law has been violated. This argument is premised on claims that the other authorized methods of proof, selected parcels and sales, are prohibitively expensive so that petitioners, and similarly situated parties, are effectively foreclosed from challenging the rate of assessment of their property. While a “law which would practically shut out the evidence of a party and thus deny him the opportunity for a trial would substantially deprive him of due process of law” (Board of Comrs. of Excise of City of Auburn v Merchant, 103 NY 143, 148), it cannot be said that this legislation has been shown, on its face, to constitute such a deprivation. The fact that these procedures are admittedly more cumbersome and expensive does not require a holding that there is a deprivation of due process. (Gibbes v Zimmerman, 290 US 326.) The Legislature, in its wisdom, has seen fit to restrict the admissible proof to selected parcels and sales data and there are no grounds for this court, by judicial fiat, to authorize additional proof. The Legislature did no more than restore, in special assessing units, the status quo ante chapter 942 of the Laws of 1961 which first authorized the admission of State equalization rates.

Once the ratio between assessed value and full market value has been determined, petitioners will be required to establish the fair market value for the property against which the ratio will be applied to determine whether the assessment is proper. Because sales data of comparable property is one method of establishing a fair market value, petitioner Colt Industries’ motion for discovery of that data is remitted to Supreme Court for further consideration and disposition in light of our decision in this case. Assuming petitioner can show a correlation between those listings and the question of fair market value, discovery should be granted.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

In Matter of Colt Inds. v Finance Administrator: Order modified, without costs, and matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.

In Matter of Equitable Life Assur. Soc.v Finance Administrator: Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.

      . Amendment of subdivision 3 of section 720 of the Real Property Tax Law (L 1979, ch 126, 82; L 1981, ch 3, 8 1; L 1981, ch 107, 8 1; L 1981, ch 259, § 1) and enactment of new section 721 of the Real Property Tax Law (L 1979, ch 127, 82; L 1981, ch 3, §2).

      . The revised subdivision 3 of section 720 now reads:
      “3. Evidence on the issue of whether an assessment is unequal shall be limited as hereinafter provided. The parties shall mutually agree on the parcels to be appraised and the number of witnesses to be heard with respect to such issue. In the event the parties fail to agree on such parcels or on the number of witnesses, upon application of either party the court or referee shall select the parcels to be appraised without reference to their assessed values, or shall determine the number of witnesses, or both, as the case may be. Before any testimony is given by either party as to the value of such parcels, each party shall simultaneously file with the court or referee, on a date fixed by the court or referee, a written statement or tabulation of the appraised values placed upon such parcels by the witnesses of the respective parties, and each party shall serve on the other at the same time a copy of such statement or tabulation of values stated by his witnesses. The parties shall be limited in their proof on the trial of such issue to such parcels and witnesses, except that in any event, whether or not parcels are selected as hereinabove provided, evidence may be given by either party as to the following:
      “(a) in all assessing units, actual sales of real property within the assessing units that occurred during the year in which the assessment under review was made;
      “(b) in all assessing units other than special assessing units as defined in section eighteen hundred one of this chapter, the state equalization rate established for the roll containing the assessment under review; or “(c) in all special assessing units as defined in section eighteen hundred one of this chapter, only for proceedings commenced with respect to assessment rolls completed after December thirty-first, nineteen hundred eighty-three, the latest applicable class ratio established for the roll containing the assessment under review; provided, however, that such class ratios shall not be admissible pursuant to this paragraph unless the petitioner alleges and proves an inequality greater than twelve and one half percent of such class ratio.”

      . A special assessing unit is defined by section 1801 as an assessing unit with a population of one million or more.

        . The application of this distinction, as well as every differentiation among municipal units, whatever its basis, will have a geographic consequence.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Slewett & Farber, Respondent, v Board of Assessors of the County of Nassau et al., Appellants. Attorney-General of the State of New York, Intervenor-Appellant.
    Argued November 18, 1981;
    decided January 7, 1982

      POINTS OF COUNSEL

      Edward G. McCabe, County Attorney (Joshua A. Elkin of counsel), for appellants.
    I. Subdivision 3 of section 720 of the Real Property Tax Law (as amd by L 1979, ch 126; L 1981, chs 3, 107, 259), which prescribes the type of evidence to be used on the issue of whether an assessment is unequal, applies in all respects in this proceeding and to all other pending proceedings not finally determined as of May 22, 1979. (Matter of Slewett & Farber v Board of Assessors of County of Nassau, 80 AD2d 186; Matter of Lunden v Petito, 30 AD2d 820; Matter of C & S Golf & Country Club Corp. v Stevens, 60 AD2d 841; Congregation Gates of Prayer v Board of Appeals of Vil. of Lawrence, 48 AD2d 679; Matter of Demisay, Inc. v Petito, 31 NY2d 896; Matter of Suddell v Zoning Bd. of Appeals of Vil. of Larchmont, 36 NY2d 312; Matter of Ray A.M., 37 NY2d 619; Strauss v University of State of N.Y., 2 NY2d 464; Guth Realty v Gingold, 34 NY2d 440; 860 Executive Towers v Board of Assessors of County of Nassau, 53 AD2d 463, affd sub nom. Matter of Pierre Pellaton Apts, v Board of Assessors of County of Nassau, 43 NY2d 769; People ex rel. Yaras v Kinnaw, 303 NY 224.) II. Subdivision 3 of section 720 of the Real Property Tax Law (as amd by L 1979, ch 126; L 1981, chs 3, 107, 259) gives rise to no constitutional question and the expense of proving inequality by the methods prescribed therein is not a proper test of the constitutionality of said statute. (Matter of Wolf v Assessors of Town of Hanover, 308 NY 416; Matter of O’Brien v Assessor of Town of Mamaroneck, 20 NY2d 587; Guth Realty v Gingold, 34 NY2d 440; 860 Executive Towers v Board of Assessors of County of Nassau, 53 AD2d 463; Matter of Kolb v Holling, 285 NY 104; Matter of Chrysler Props. v Morris, 23 NY2d 515; San Antonio School Dist. v Rodriguez, 411 US 1; Boddie v Connecticut, 401 US 371; Darweger v Staats, 267 NY 290; Oriental Blvd. Co. v Heller, 27 NY2d 212.) III. Chapter 476 of the Laws of 1978 is a constitutional legislative enactment. (Bennett v County of Nassau, 47 NY2d 535; Gautier v Ditmar, 204 NY 20; Matter of Furey v Graves, 148 Misc 785, 241 App Div 897, 266 NY 415; Guth Realty v Gingold, 34 NY2d 440; 860 Executive Towers v Board of Assessors of County of Nassau, 53 AD2d 463; Matter of

      Hellerstein v Assessor of Town of lslip, 37 NY2d 1; Terrel v Wheeler, 123 NY 76; Weissinger v Boswell, 330 F Supp 615; Matter of Drelich v Kahn, 60 Misc 2d 227; People v Cook, 34 NY2d 100.)

      Adolph Koeppel, Bernard Sommer and William D. Siegel for respondent.
    I. The 1979 amendment to subdivision 3 of section 720 of the Real Property Tax Law unconstitutionally violates the doctrine of separation of powers by barring petitioner from submitting evidence which the appellate courts of this State have held to be “competent and material” and by interfering with a court’s inherent power to consider any relevant and material evidence, absent a sound public policy consideration justifying such exclusion. (Guth Realty v Gingold, 34 NY2d 440; Bethlehem Steel Corp. v Board of Educ., 44 NY2d 831; City of Buffalo v Clement Co., 28 NY2d 241; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293; City of New York v Village of Lawrence, 250 NY 429; Sackler v Sackler, 15 NY2d 40; Matter of Dorn “HH” v Lawrence “II, 31 NY2d 154; Davis v Supreme Lodge, Knights of Honor, 165 NY 159; McGowan v Metropolitan Life Ins. Co., 234 App Div 366, 259 NY 454; People ex rel. Yaras v Kinnaw, 303 NY 224.) II. A taxpayer in an inequality proceeding is entitled to an “effective” remedy; judicial notice may be taken of the prohibitive cost of the actual sales method of proving ratio. (Gibbes v Zimmerman, 290 US 326; Insurance Co. v Glidden Co., 284 US 151; Iowa Cent. Ry. Co. v Iowa, 160 US 389; Worthen Co. v Kavanaugh, 295 US 56; Gilman v Tucker, 128 NY 190; Howard v Moot, 64 NY 262; Sioux City Bridge v Dakota County, 260 US 441; Hillsborough v Cromwell, 326 US 620; Brinkerhoff-Faris Co. v Hill, 281 US 673; Hunter v New York, Ontario & Western R.R. Co., 116 NY 615.) III. The 1978 amendment is an unconstitutional attempt to create a classified taxation system. (People ex rel. Hatch v Reardon, 184 NY 431; Matter of Small v Moss, 279 NY 288; Packer Coll. Inst, v University of State of N. Y., 298 NY 184; Matter of Rego Props. v Finance Administrator of City of N. Y., 102 Misc 2d 641; Weissinger v Boswell, 330 F Supp 615; Gautier v Ditmar, 204 NY 20; L.L.F. Realty Co. v Fuchs, 273 App Div 111; Matter of United States Steel Corp. v Gerosa, 7 NY2d 454; McCarthy v Jones, 449 F Supp 480.) IV. The constitutionally protected right to a refund of the excessive tax payments may not be retroactively eliminated by the Legislature. (People ex rel. Warren v Carter, 109 NY 576; Hillsborough v Cromwell, 326 US 620; Sioux City Bridge v Dakota County, 260 US 441; Louisville & Nashville R.R. v Public Serv. Comm, of Tenn., 389 F2d 247; Clarendon Trust v State Tax Comm., 43 NY2d 933; Matter of Neuner v Weyant, 63 AD2d 290, 48 NY2d 975; Matter of Lacidem Realty Corp. v Graves, 288 NY 354; Matter of Chrysler Props, v Morris, 23 NY2d 515; People ex rel. Beck v Graves, 280 NY 405.) V. Legislative moratoria on full value assessment and the delays on the implementation of “speedy” tax certiorari trials have opened the door in New York State for Federal intervention under the Tax Injunction Act of 1937. (Hurd v City of Buffalo, 34 NY2d 628; Bethlehem Steel Corp. v Board of Educ., 44 NY2d 831; Franchise Realty Interstate Corp. v Srogi, 52 NY2d 496.)

      Robert Abrams, Attorney-General (John M. Farrar and Shirley Adelson Siegel of counsel), for intervenor-appellant.
    I. No further constitutional attack on subdivision 3 of section 720 of the Real Property Tax Law, as amended, should be permitted. The cost of proof of ratio under the remaining available methods of proof is not a basis for further challenge to the statute on due process grounds; even if it is, due process demands a plenary form of action for such challenge. (Guth Realty v Gingold, 34 NY2d 440; Worthen Co. v Kavanaugh, 295 US 56; Home Bldg. & Loan Assn. v Blaisdell, 290 US 398; Matter of Dudley v Kerwick, 52 NY2d 542; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Harriss v Tams, 258 NY 229; Valladares v Valladares, 80 AD2d 244; Matter of Andresen v Rice, 277 NY 271.) II. Subdivision 3 of section 720 of the Real Property Tax Law, as amended, should be retroactively applicable to all pending inequality proceedings. (Sheilcrawt v Moffett, 294 NY 180; Board of Comrs. of Excise of City of Auburn v Merchant, 103 NY 143; Louisville & Nashville R.R. v Melton, 218 US 36; Mobile, J. & K.C.R.R. v Turnipseed, 219 US 34; Farrington v Pinckney, 1 NY2d 74; Matter of Boardwalk & Seashore Corp. v Murdock, 286 NY 494; Bradford v County of Suffolk, 257 App Div 777; 860 Executive Towers v Board of Assessors of

      County of Nassau, 53 AD2d 463, affd sub nom. Matter of Pierre Pellaton Apts. v Board of Assessors of County of Nassau, 43 NY2d 769; Matter of Lome v Tax Comm. of City of N.Y., 19 Misc 2d 803, 11 AD2d 773; McCrory Corp. v Gingold, 52 AD2d 23.) III. Subdivisions 3,4 and 5 of section 307 of the Real Property Tax Law are procedural in nature and are a constitutional exercise of legislative power. (Matter of Hellerstein v Assessor of Town of lslip, 37 NY2d 1; New York Steam Corp. v City of New York, 268 NY 137; Sonmax, Inc. v City of New York, 89 Misc 2d 945, 43 NY2d 253; People v Cook, 34 NY2d 100; San Antonio School Dist. v Rodriguez, 411 US 1; Salsburg v Maryland, 346 US 545; Albie State Bank v Bryan, 282 US 765; Farrington v Pinckney, 1 NY2d 74; Ravensdale Holding Co. v Village of Hastings on Hudson, 156 Misc 777; Preston Co. v Funkhauser, 261 NY 140, affd sub nom. Funkhauser v Preston Co., 290 US 163.) IV. Even if considered a substantive “taxing” statute, the Legislature may ratify formerly illegal assessment practices of local taxing units. (East N. Y. Sav. Bank v Hahn, 293 NY 622, 326 US 230; Teeval Co. v Stern, 301 NY 346; I.L.F.Y. Co. v Temporary State Housing Rent Comm., 10 NY2d 263; United States v Heinszen & Co., 206 US 370; 8200 Realty Corp. v Lindsay, 27 NY2d 124; Martin v State Liq. Auth., 43 Misc 2d 682, 15 NY2d 707; People ex rel. Durham Realty Corp. v La Fetra, 230 NY 429; Montgomery v Daniels, 38 NY2d 41; Paterson v University of State of N. Y., 14 NY2d 432; Matter of Gae Farms v Diamond, 40 AD2d 909.)

      Frederick J. Martin, Bleakley Schmidt and Hugh D. Fyfe for Rego Properties Corp., intervenor.
    I. Subdivisions 3, 4 and 5 of section 307 of the Real Property Tax Law are unconstitutional. (People ex rel. Yaras v Kinnaw, 303 NY 224; Matter of Wolf v Assessors of Town of Hanover, 308 NY 416; C.H.O.B. Assoc. v Board of Assessors of County of Nassau, 45 Misc 2d 184, 22 AD2d 1015, 16 NY2d 779; Woodhouse, Drake & Carey v Anderson, 61 Misc 2d 951; Matter of Levine v Whalen, 39 NY2d 510; Matter of Small v Moss, 279 NY 288; Weissinger v Boswell, 330 F Supp 615; People v Cook, 34 NY2d 100; Gautier v Ditmar, 204 NY 20; Matter of Mollenhauer, 257 App Div 286.) II. Subdivision 3 of section 720 of the Real Property Tax Law (as amd by L 1979, ch 216) is unconstitutional. (People ex rel. Yaras v Kinnaw, 303 NY 224; Matter of Wolf v Assessors of Town of Hanover, 308 NY 416; C.H.O.B. Assoc. v Board of Assessors of County of Nassau, 45 Misc 2d 184, 22 AD2d 1015, 16 NY2d 779; 860 Executive Towers v Board of Assessors of County of Nassau, 84 Misc 2d 525, 53 AD2d 463, affd sub nom. Matter of Pierre Pellaton Apts. v Board of Assessors of County of Nassau, 43 NY2d 769; Sackler v Sachler, 15 NY2d 40; People ex rel. Woronoff v Mallon, 222 NY 456; Tot v United States, 319 US 463; Leary v United States, 395 US 6; Guth Realty v Gingold, 34 NY2d 440; Matter of O’Brien v Assessor of Town of Mamaroneck, 20 NY2d 587.)
   OPINION OF THE COURT

Per Curiam.

The order of the Appellate Division should be modified by deleting therefrom declarations as to the constitutionality of former sections 307 and 721 and former subdivision 3 of section 720 of the Real Property Tax Law. Since those statutes have expired during the pendency of this appeal, we do not address the question of their constitutionality. As so modified, the order of the Appellate Division should be affirmed, and the question certified answered in the negative.

As to the status of this action, we agree with the Appellate Division that petitioners have secured an interlocutory judgment. That judgment, having determined that the State equalization rates are appropriate proof of the rate of fractional assessment in Nassau County for the years in question, allows petitioners to proceed to prove that their property has been assessed in excess of that rate by establishing the property’s fair market value, against which the predetermined fractional assessment rate will be applied.

Prior to this court’s decision in Matter of Heller stein v Assessor of Town of lslip (37 NY2d 1), fractional assessment was a common practice. In that case, we held that section 306 of the Real Property Tax Law required all property be assessed at full value. In the wake of that decision, the Legislature passed several provisions allowing local taxing authorities to continue fractionalized assessments while they conducted the physical revaluation of real property that would be necessary to implement full value assessment. Since our decision in Hellerstein was specifically prospective in its application and because the Legislature subsequently suspended the requirements of full valuation for those taxing districts undergoing revaluation, assessments for the years in question could continue to be challenged, as in the past, on the ground that the assessments were unequal. Special Term, pursuant to the provisions of section 307 of the Real Property Tax Law, then in effect, found that Nassau County was not required to comply with the requirements of full valuation for the years in question, 1965-1966 through 1977-1978. It further determined that the applicable ratio between assessed and full value, for the purposes of this proceeding, was the State equalization rate. Since section 307 has expired during the pendency of this appeal, we only pass on whether the State equalization rates could be used in this proceeding as proof of the ratio between assessed value and full value.

In addition to the legislative provisions deferring application of our decision in Hellerstein, the Legislature, in related action, also enacted an amendment of subdivision 3 of section 720 and a new section 721 of the Real Property Tax Law which substantially limited the use of State equalization rates to establish assessment ratios in inequality review proceedings which had been approved in Guth Realty u Gingold (34 NY2d 440). The hearing and decision at Special Term in this case preceded these legislative enactments. The enactments had become effective, however, and were considered on the cross appeals to the Appellate Division. Now, again, in consequence of their expiration these enactments have no application to the case as it stands before us on the present appeal. Accordingly, we review the determination at the Appellate Division on the basis of the statutory and case law now in effect, and hold that under the applicable common law, the determination that the State equalization rate was the appropriate ratio between assessed value and full value was correct. (Guth Realty v Gingold, 34 NY2d 440, supra.)

Such a tax review proceeding is necessarily bifurcated, the first part establishing the applicable ratio of assessment and the second determining the fair market value of the property in question against which the ratio is applied to determine whether the assessment is unequal. In this proceeding, the grant of partial summary judgment fixing the appropriate percentage of full value at the level set by the State Board of Equalization and Assessment has adjudicated the issue of ratio. It is, therefore, in the nature of an interlocutory judgment. (860 Executive Towers v Board of Assessors of County of Nassau, 53 AD2d 463, 475, affd sub nom. Matter of Pierre Pallaton Apts. v Board of Assessors of County of Nassau, 43 NY2d 769.) When the remaining question of the fair market value of the property is determined, a simple mathematical application of the ratio to that fair market value will indicate whether or not the assessment is equal.

Furthermore, our affirmance of the Appellate Division in 860 Executive Towers (43 NY2d 769, supra) means that once the validity of the State equalization rate has been adjudicated, the county is collaterally estopped in other proceedings from further challenges of that rate.

It remains to address the contention advanced by the County of Nassau that, notwithstanding the expiration on October 30,1981 of former subdivision 3 of section 720, the new subdivision 3 of that section, which became effective on December 3, 1981 when the Legislature enacted S-7000A over the Governor’s veto (L1981, ch 1057) and which again limits the use of State equalization rates in inequality review proceedings, should be held applicable to the present proceeding. We note that while the former amendment of subdivision 3 was expressly made applicable to proceedings commenced on or after January 1, 1970 and not finally determined (L 1979, ch 126, § 4; L 1979, ch 127, §3) no such provision for retroactivity is contained in S-7000A, section 17 of which provides only that: “This act shall take effect immediately.” In this circumstance we perceive no indication of legislative intent that the new enactment is to have retrospective application. Whatever may be the current and prospective applicability of new subdivision 3 to other pending proceedings, we hold that in the present proceeding in which the hearing with respect to assessment ratios has been concluded and an interlocutory judgment has been entered determining the rate of fractional assessment in Nassau County for the years in question, new subdivision 3 has no application. The procedural stage to which the new subdivision might otherwise have applied has long since been concluded.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.

      . Section 2 of chapter 126 of the Laws of 1979 to expire December 31, 1980 extended to May 15, 1981 by section 1 of chapter 3 of the Laws of 1981, and further extended to June 15, 1981 by section 1 of chapter 107 of the Laws of 1981, and finally extended to October 30, 1981 by section 1 of chapter 259 of the Laws of 1981.

      . Section 2 of chapter 127 of the Laws of 1979 to expire December 31,1980 extended to May 15, 1981 by section 2 of chapter 3 of the Laws of 1981.


author: Jasen, J. Meyer, J.

text:
    The People of the State of New York, Respondent, v Leonard Price, Appellant.
    Argued October 23, 1981;
    decided December 22, 1981

      POINTS OF COUNSEL

      Herbert L. Greenman and Murray J. Grashow for appellant.
    I. Appellant’s Fourth Amendment rights were violated by the conduct of the California detective. (Katz v United States, 389 US 347; Smith v Maryland, 442 US 735; United States v Chadwick, 433 US 1; United States u Solis,

      536 F2d 880; United States v Venema, 563 F2d 1003; United States v Race, 529 F2d 12; United States v Bronstein, 521 F2d 459; People v Smith, 42 NY2d 961; Coolidge v New Hampshire, 403 US 443; Terry v Ohio, 392 US 1.) II. The court erred in not granting defendant’s right to examine the dog which allegedly “sniffed” the drugs. (People v White, 40 NY2d 797; People v Moore, 60 AD2d 477.)

      Edward C. Cosgrove, District Attorney (John J. De Franks, Timothy R. Harvey of counsel), for respondent.
    T. The activities of the dog at the Los Angeles airport did not constitute a search within the ambit of the Fourth Amendment, and, therefore, did not violate defendant’s constitutional rights. (United States v Solis, 536 F2d 880; United States v Fulero, 498 F2d 748; United States v Bronstein, 521 F2d 459, 424 US 918; United States v Johnston, 497 F2d 397; United States v Martinez-Miramontes, 494 F2d 808, 419 US 897; United States v Halliday, 487 F2d 1215; United States v Goldstein, 635 F2d 356; United States v Chadwick, 433 US 1; People v Smith, 42 NY2d 961.) II. It was not error for the court to deny defendant’s request to examine the dog which detected the drugs in the suitcase. (People v White, 40 NY2d 797; People v De Rosa, 42 NY2d 872.)
   OPINION OF THE COURT

Jasen, J.

The issue raised by this appeal, one of first impression in New York, is whether the use of a trained dog to indicate the presence of a controlled substance in a passenger’s luggage constitutes a search within the purview of the Fourth Amendment. We hold that it does not.

Defendant Leonard Price and his codefendant, Carl Parsons, arrived at the Los Angeles airport shortly after midnight, Los Angeles time, on January 12, 1979. Detective Kaiser of the Los Angeles Police Department, who was assigned to patrol the airport that evening, observed that both men were sweating profusely and appeared very nervous while purchasing their tickets and waiting for their flight to Buffalo. Although they had no previous reservations, they arrived within 10 minutes of the scheduled departure. Defendants paid cash for the tickets and Detective Kaiser observed that they were carrying large sums of money.

Detective Kaiser, his suspicions having been raised by the defendants’ conduct, notified other officers who brought a specially trained dog, Frog, to the airline’s baggage area. Frog was trained to detect the presence of cocaine, heroin or marihuana; he was rated 100% effective by the Los Angeles police, having indicated the presence of drugs 705 times in 705 opportunities to do so.

Based on Detective Kaiser’s observations and Frog’s positive reaction indicating the presence of controlled substances in the defendants’ luggage, the Los Angeles police contacted a special agent of the Drug Enforcement Administration (DEA), who relayed the information, including information concerning Frog’s training and reliability, to the New York State Police. The State Police secured a search warrant which authorized the search of defendants and their luggage.

After allowing defendants to claim their baggage at the Buffalo airport, drug enforcement agents stopped the defendants. Pursuant to the search warrant, both defendants and their luggage were searched. A large amount of heroin was found in one of the suitcases, and the defendants were placed under arrest.

The defendant on this appeal, Leonard Price, was indicted and charged with criminal possession of a controlled substance in the first degree (Penal Law, § 220.21, subd 1; § 20.00) and criminally using drug paraphernalia in the second degree (Penal Law, § 220.50, subd 1; § 20.00). Subsequently, defendant brought an omnibus motion, pursuant to CPL 710.20, to vacate the search warrant and suppress the evidence. In pertinent part, that motion argued that the use of the dog by the Los Angeles police constituted a search that was unlawful because it was not authorized by a warrant. Therefore, the reaction of the dog, being the result of an illegal search, could not constitute probable cause justifying the issuance of a search warrant in New York.

Trial court denied the motion to suppress stating that: “A person’s right to expectations of privacy does not extend to the atmosphere generally * * * His introduction of emanations into the same which may inculpate him in crime is at his own risk.” Defendants then entered a plea of guilty to a reduced charge of criminal possession of a controlled substance in the second degree. (Penal Law, §220.41.) On appeal, the Appellate Division affirmed the judgment against defendant, holding that the California police had not violated his Fourth Amendment rights by using the trained dog to establish probable cause. Hence, probable cause having been lawfully established, there was an appropriate basis upon which a search warrant could be obtained by the New York State Police. The order of the Appellate Division should be affirmed.

The right to be free from unreasonable searches and seizures protects people “from unreasonable governmental intrusion” “wherever an individual may harbor a reasonable ‘expectation of privacy’”. (Terry v Ohio, 392 US 1, 9, quoting Katz v United States, 389 US 347, 351, Justice Harlan concurring.) The Supreme Court has ruled subsequently that people who ship goods by rail in a closed and locked footlocker have such a “reasonable expectation of privacy”. (United States v Chadwick, 433 US 1.) Therefore, "it would be necessary to obtain a warrant, based on probable cause, before the footlocker could be searched.

The principle of Chadwick clearly establishes that the defendant in this case had a reasonable expectation of privacy in the closed suitcases. The issue is not, as in Chadwick, whether a warrant was necessary for the police to open the suitcases, but, rather, whether a warrant was required to allow the dog to sniff the air surrounding the luggage in order to determine whether contraband was being carried in the luggage. Since the dog does nothing more than smell the air surrounding the luggage in order to detect odors emanating from that luggage, there was no intrusion or search of the luggage. Defendant must assert a reasonable expectation that the air surrounding his luggage and the odor apparent in that surrounding air will remain private. In such circumstances, the Fourth Amendment affords no protection.

Such an expectation of privacy is not supported by simple logic, analogous precedent or by the conduct of others similarly situated to the defendants. It is logically simplistic that once one releases something into the open air, there can be little reasonable expectation of asserting one’s claims of privacy in either the item itself or in the surrounding air. (United States v Goldstein, 635 F2d 356, cert den 452 US 962; United States v Solis, 536 F2d 880.) Just as there is no reasonable expectation of privacy in items left in the plain view of an officer lawfully in the position from which he observes the item (see, e.g., Harris v United States, 390 US 234), there can be no reasonable expectation that plainly noticeable odors will remain private. Those Federal cases that have already considered whether the use of a dog trained to sniff out controlled substances interferes with defendant’s reasonable expectations of privacy have similarly concluded that there is no reasonable expectation of privacy in the air surrounding one’s possessions. (See, e.g., United States v Fulero, 498 F2d 748; United States v Venema, 563 F2d 1003; United States v Bronstein, 521 F2d 459, cert den 424 US 918; United States v Solis, 536 F2d 880, supra.) Furthermore, the common use of mothballs and talcum powder by drug traffickers to cover such odors (see, e.g., United States v Fulero, 498 F2d 748, supra; United States v Solis, 536 F2d 880, supra; United States v Goldstein, 635 F2d 356, supra) indicates that there is no such expectation of either confining the odors or of privacy in the odors emanating from one’s luggage.

The only potentially distinguishing factor, in this type of case, is the necessity for the police to depend on the aid of the dog, Frog, the “canine cannabis connoisseur”. (United States v Bronstein, 521 F2d 459, supra.) As the Appellate Division noted, a dog’s superior senses have long been used to aid mankind in a variety of contexts. Not the least of these has been the use of dogs to track by scent escaped criminals or lost persons and articles. (1 Wigmore, Evidence [3d ed], § 177, subd [2].) There is little conceptual difference between the use of the dog to track the criminal himself and a similar use of the dog to detect contraband which the criminal unlawfully possesses. (United States v Johnson, 660 F2d 21.) Under the circumstances of this case, the use of the dog, Frog, was justified.

In a somewhat similar situation, this court has held that use of a flashlight is not unreasonable even though it makes it possible for a police officer to make observations that would normally be foreclosed by the darkness. (People v Cruz, 34 NY2d 362, 370; People v Sullivan, 29 NY2d 69.) Similarly, the use of searchlights and binoculars to enhance an officer’s normal vision has been sanctioned. (United States v Lee, 274 US 559; United States v Minton, 488 F2d 37.)

What expectations of privacy defendants might otherwise have asserted were reduced by the fact that they surrendered their luggage to a common carrier which also has a responsibility for assuring the safety of its passengers by monitoring what is shipped on the airplanes. (United States v Bronstein, 521 F2d 459, supra.) It is common knowledge that all airline passengers and their luggage are subject to being searched and that these searches, although devised to protect against hijackings, are reasonable even when contraband is discovered in areas where a person would normally have a reasonable expectation of privacy. (People v Kuhn, 33 NY2d 203; United States v Bronstein, 521 F2d 459, supra; United States v Goldstein, 635 F2d 356, supra.) Although this is not the usual case challenging the use of a magnetometer or X ray at the airport, there is no contention raised that either the Los Angeles police, who were charged with patrolling the airport, or their dog, were not authorized to enter the baggage area.

Thus, since the use of the dog to indicate the presence of a controlled substance did not violate the defendant’s Fourth Amendment rights, the police conducted themselves in an exemplary manner by then seeking a warrant authorizing a search of the defendants’ luggage. (United States v Chadwick, 433 US 1, supra.) On the facts of this case, there was probable cause to issue the search warrant. The officers had observed the defendants’ furtive behavior and saw that they were carrying large amounts of cash. These observations, attested to in the supporting affidavit, combined with their report of the dog’s reaction and training, supported a finding of probable cause.

It is also the contention of the defendant that the use of a dog to indicate the presence of a controlled substance in the defendants’ luggage violated California law and that the law of the situs is controlling in this case. The use of a trained dog by the Los Angeles police to establish, in part, the probable cause upon which a search warrant is issued in New York does not involve a conflicts-of-law question. Instead, it is a question of whether or not the use of the dog is proscribed by either Federal or New York law, constitutional or statutory. Since we hold that there is no violation of defendant’s rights under either Federal or State law, there is no reason to suppress the evidence found in the search conducted pursuant to the warrant validly issued in New York.

Finally, we address defendant’s contention that Frog must be produced for examination and testing pursuant to CPL 240.20. There is no validity to defendant’s argument where he has failed to present any evidence to rebut the People’s documentary proof of the dog’s ability to detect in every instance the presence of controlled substances. Had he come forward with any indication of questionable reli-. ability, it would have been within the trial court’s discretion to grant the requested discovery. As in the case of an informer, where the denial of direct discovery of the informer does not deprive the defendant of a fair trial as long as there was verification or corroboration (People v Cerrato, 24 NY2d 1, cert den 397 US 940), in this case, the corroboration of the Los Angeles police that Frog was trained in detecting the presence of controlled substances and was rated 100% effective is adequate to satisfy the requirement of reliability in protecting defendant’s rights.

For all these reasons, the order of the Appellate Division should be affirmed.

Meyer, J.

(concurring). Though I concur in the result, I am unable to accept the majority’s reasoning. I would hold that defendant’s reasonable expectation of privacy in the closed interior space of his suitcase was invaded by the use of a trained dog to detect the presence there of a controlled substance. Use of such a dog does not enhance any of the handler’s five senses in the same way that a searchlight or binoculars directly enhances the vision of the human user. I, therefore, cannot accept the analogy drawn by the majority, and in any event regard the cases relied upon as open to question in view of People v Smith (42 NY2d 961, 962 [use of flashlight may be an “unwarranted intrusion” into protected Fourth Amendment interests]) and United States v Taborda (635 F2d 131, 139); United States v Lace (502 F Supp 1021, 1041); United States v Kim (415 F Supp 1252 [telescope may not be relied upon as bringing into “plain view” items in the interior of an apartment]). In my view, the appropriate analogy is the use of a magnetometer, the metal detection device commonly employed to scan airline passengers and their luggage for weapons, which we have held to intrude on protected Fourth Amendment interests (People v Kuhn, 33 NY2d 203, 209), or, arguably, to the “spike mike” and other mechanical listening devices fixed to outside walls, held in Katz v United States (389 US 347); Clinton v Virginia (377 US 158) and Silverman v United States (365 US 505), to violate the Fourth Amendment (see 1 La Fave, Search & Seizure, §2.2, subd [f], p 284). In practical effect there is no difference between the emanations of odor sniffed by the dog and the sound vibrations sensed by such devices. Both originate from inside a private area and travel beyond its perimeters. But, like La Fave (id., p 288), I would hold that the lesser intrusion of the canine nose into the atmosphere surrounding the suitcases is permissible on the lesser basis of “reasonable suspicion.” In sum, there was a “search” within the purview of the Fourth Amendment but it was justified by reasonable suspicion which the Los Angeles officer clearly had in this case.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Fuchsberg concur with Judge Jasen; Judge Meyer concurs in result in a separate opinion.

Order affirmed.

      . In Chadwick, the police had been alerted that the defendants were possibly shipping drugs. The facts indicate that the police used a trained dog to confirm their suspicions that drugs were in the footlocker. In deciding that the police were required to obtain a search warrant before opening the footlocker, the Supreme Court did not address the implications of the dog’s sniff as a basis for establishing probable cause.

      . The police in Buffalo had secured a warrant before opening and searching the suitcases.

      . We are not unmindful of our holding in People v Smith (42 NY2d 961) that the use of a flashlight constituted an unwarranted intrusion. The holding in that case, however, was based on the fact that the initial stop by the police of the defendant’s car was unreasonable. There was no analogous stop in this case.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Pedro Arroyo, Appellant.
    Argued November 20, 1981;
    decided January 19, 1982

      POINTS OF COUNSEL

      Sheri Lynn Johnson and William E. Hellerstein for appellant.
    Appellant’s right to confront the witnesses against him was violated by the introduction at his trial of the complainant’s preliminary hearing testimony where (1) the People were aware of the complainant’s desire to avoid testifying yet made virtually no efforts to secure her attendance until after she failed to appear for trial and (2) owing to various factors including the scope of the proceeding itself, the opportunity for cross-examination at the preliminary hearing was constitutionally inadequate (US Const, 6th, 14th Arndts; NY Const, art I, § 6). (Barber v Page, 390 US 719; Berger v California, 393 US 314; California v Green, 399 US 149; Dutton v Evans, 400 US 74; People v Simmons, 36 NY2d 126; People v Reed, 98 Misc 2d 488; United States v Wingate, 520 F2d 309; People v Berzups, 49 NY2d 417; People v Mayo, 36 AD2d 798, 31 NY2d 707.)

      Mario Merola, District Attorney (Robin R. Dolsky, Alan D. Marrus and Timothy J. McGinn of counsel), for respondent.
    I. Appellant’s guilt was proved by overwhelming evidence. II. The trial court was warranted in finding that complainant was unavailable to testify and that her preliminary hearing testimony would be admissible at appellant’s trial. (Ohio v Roberts, 448 US 56; Barber v Page, 390 US 719; People v Simmons, 36 NY2d 126; People v Allah, 47 AD2d 738; People v Burke, 53 NY2d 672; People v Roucchio, 52 NY2d 759; People v McRay, 51 NY2d 594; People v Wharton, 46 NY2d 924.)
   OPINION OF THE COURT

Fuchsberg, J.

In the main, we are asked to say whether the admission at trial of an unavailable witness’ preliminary hearing testimony constituted an unconstitutional application of CPL 670.10 in violation of the right of confrontation. We find it did not.

Defendant was convicted, after a jury trial, of assault in the second degree and the Appellate Division has since affirmed. The charge stemmed from an incident in which he was alleged to have inflicted multiple stab wounds on his estranged “common-law wife”. When the case came on for trial, the People asserted that the victim, who was the sole identifying witness, had disappeared and that diligent attempts to discover her whereabouts had failed. After hearings to determine the question, Trial Term ruled that, with the exception of specified redactions, testimony she had given at a preliminary hearing could be read into evidence at trial. The remainder of the People’s case consisted essentially of the calling of a police officer, a hospital physician and the introduction of records, all of which bore on circumstances surrounding the assault rather than who committed it.

Largely a codification of common law, CPL 670.10, as pertinent, reads: “Under circumstances prescribed in this article, testimony given by a witness at (a) a trial of an accusatory instrument, or (b) a hearing upon a felony complaint conducted pursuant to section 180.60, or (c) an examination of such witness conditionally, conducted pursuant to article six hundred sixty, may, where otherwise admissible, be received into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness is unable to attend the same by reason of death, illness or incapacity, or cannot with due diligence be found, or is outside the state or in federal custody and cannot with due diligence be brought before the court” (emphasis added). (See Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 670.10, pp 190-191.)

It is defendant’s contention that the People’s efforts to obtain the missing witness’ personal presence at trial were too brief, too belated, too cursory and too halfhearted to meet the statute’s “due diligence” requirement. He further claims that the functional scope of the preliminary hearing and the limited nature of the cross-examination of the witness were too inadequate, when measured by confrontation values, to allow for the introduction of her testimony at trial. Elaborating on the latter point, he argues that, because of the early stage at which the preliminary hearing was held, his counsel’s investigation of the case at best was too incomplete to lay a foundation for effective cross-examination and that this deficiency was exacerbated by undue restriction by the court. Moreover, defendant also complains that, even if the court’s ruling to receive the witness’ preliminary hearing testimony had been proper, it was error to deny a protective application to delete his counsel’s cross-examination from the transcript to be read to the jury. And, finally, defendant insists that, because of the catalogue of deficiencies he alleges, the witness’ hearing testimony, concededly a sine qua non for making out a prima facie case, could not suffice, as a matter of law, to establish defendant’s guilt beyond a reasonable doubt.

Fundamental to the issues thus raised is the right of a defendant in a criminal case to confront an adverse witness, as guaranteed by both Federal and State Constitutions (US Const, 6th Arndt; NY Const, art I, § 6). This fair trial requirement not only exposes the witness to a face-to-face encounter, but opens the door to that most effective trial tool for testing truth, cross-examination. So vital is the latter that, with narrow and cautious exceptions, such as, for instance, those which permit the use of certain types of hearsay (with the inherent limitations on effective cross-examination that these bring in their wake), the general rule is that testimonial statements which cannot be subjected to this test must be excluded (5 Wigmore, Evidence [Chadbourn rev], §§ 1367, 1369, 1420).

The corollary is that, for an exception to fall outside the constitutional constriction, it must carry an alternative, though different and perhaps somewhat lesser, assurance of reliability (Ohio v Roberts, 448 US 56, 66). Even then, it must first have met a threshold criterion of necessity (Barber v Page, 390 US 719, 722), for, without it, it is difficult to constitutionally justify resort to evidence whose reliability is not necessarily assured by confrontation tests.

In the case here now, that the missing witness was both the individual upon whom the crime was perpetrated, as well as the only one to admit firsthand knowledge of its commission, went far to establish necessity. But this, standing alone, was not enough. Her unavailability also had to be established to satisfy the court that the prosecutor’s failure to produce her was not due to indifference or a strategic preference for presenting her testimony in the more sheltered form of hearing minutes rather than in the confrontational setting of a personal appearance on the stand. So, the statute, reflecting the spirit of the underlying constitutional prescriptions, demands a showing that the witness “cannot with due diligence be found” (see Ohio v Roberts, 448 US 56, 74, supra; Barber v Page, 390 US 719, 724-725, supra).

Putting these rules to the test, the trial court, after reviewing the circumstances and motives for her disappearance and the People’s efforts to locate her, found as a matter of fact that due diligence indeed had been employed. Based on the events covered by its inquiry on this subject, these may be said to have transpired between September 1, when the assault took place, and the following February 13, the date on which the trial court, acting pursuant to CPL 670.20, was to grant the motion to introduce the witness’ testimony at trial. It was during this period, on September 11, that the preliminary hearing at which the witness testified, apparently without any reluctance, was held. Nothing untoward occurred thereafter until November 24, when the witness, accompanied by defendant’s counsel, called at the District Attorney’s office. She there informed the assistant in charge that she would prefer “to drop the charges”. He thereupon explained both that this was not a decision, for her to make and that the People intended to pursue the prosecution. Even after he so advised her, she at no time, then or thereafter, directly or indirectly, indicated that she would either refuse to testify or would absent herself from the trial.

It is nevertheless now the position of the defendant, aided by hindsight, that the People should have taken undescribed extraordinary steps to assure her availability at trial. Instead, the Assistant District Attorney did no more than keep her on a standby basis until Friday, February 2, when he telephoned her to arrange for her attendance in his office at 9:00 a.m. on Monday, February 5, the case having been transferred into a trial part for that day. She did not demur. He followed up by arranging to have a detective call on the witness personally on the intervening Sunday, February 4, to make certain she understood where and when she was to report; on this visit, the detective too encountered no lack of co-operation.

The next day, when she had not appeared, the prosecutor telephoned her apartment twice, reaching only her grown daughter, who related that her mother had left without saying where she was going. Also on that day, the detective, armed with a subpoena, made two fruitless trips to the apartment. In the ensuing week, commencement of the trial proper having been held up meanwhile, daily phone calls by the prosecutor, who had procured a material witness order, and investigation now by two police officers, who, among other things, repeatedly visited the apartment, questioned neighbors, scoured the scene of the crime and checked at the neighboring public hospital, at the Missing Persons Bureau, at the Bureau of Criminal Investigation and at the local office at which the witness received her welfare checks, in the process gaining access to its records in their search for further leads, all brought them to but one dead end after another. On one of the visits to the apartment, they had, however, come across an unsigned handwritten note addressed to the daughter in which the writer announced her departure for an unstated New Jersey destination, whose whereabouts the investigators never were able to locate.

After learning the status of the search during the initial session of the 670.20 hearing on February 8, the Judge, concluding from a comparison of the note with the witness’ signature on the criminal complaint that the two were written by the same person, allowed the People to continue their efforts to find the witness while a jury was being selected. In the ensuing days, continuing their investigation under the prosecutor’s direction, the officers returned to the apartment, interviewed the superintendent of the building in which it was located, spoke to a local restaurateur reputed to be a close friend of the witness and to a miscellany of “street people”, all to no avail. By then, the court had also learned from counsel for the defendant that her client and the witness had been contemplating resumption of their life together. A final prosecutorial visit to the apartment on the morning of February 13, the day the hearing resumed, again was futile. This picture before it, the court found that “the conclusion is inescapable that she’s hiding” and that, under the circumstances, the People had “exercised due diligence”. We cannot say that these findings, since affirmed by the Appellate Division, were unsupported by evidence as a matter of law (see People v Wharton, 46 NY2d 924, 925).

The witness’ unavailability established, we now turn to the question of the reliability of her former testimony. In this regard, we first note that the solemnity of the occasion on which the preliminary hearing testimony was adduced in the case before us now was emphasized by the defendant’s presence as a matter of right, his representation by counsel, the witness’ testifying under oath, the furnishing of an opportunity for her cross-examination and, subject to exceptions not material to this case, adherence, to the rule against hearsay (CPL 180.60). Furthermore, the hearing, “a virtual minitrial of the prima facie case” (People v Hodge, 53 NY2d 313, 318), delved into substantially the same subject matter as did the trial on which it later was to be used. This identity was calculated to induce, as it did, cross-examination relevant to the purposes to which the examination ultimately was put (see People v Simmons, 36 NY2d 126, 130).

But, withal, since parties, at times — for tactical or other reasons — may, as with a live witness at trial, choose not to cross-examine, it was only a fair opportunity to do so which had to have been provided when the former testimony was given (McCormick, Evidence [2d ed], § 255). Overall, in the quest for reliability and fairness, the foregoing factors, the deference due each of them varying from case to case, are to be weighed with practicality rather than pedantry (5 Wigmore, Evidence [Chadbourn rev], § 1387). For, in the end, the “constitutional provision was not intended to secure to the accused person the right to be confronted with the witnesses against him upon his final trial; but to protect him against ex parte affidavits and depositions taken in his absence, as was frequently the practice in England at an early day” (People v Fish, 125 NY 136,152). Here, the preliminary hearing at which the witness testified, though guilt or innocence did not hang in the balance, was to determine whether there was enough evidence to hold the defendant on the very crime for which he was convicted. Accordingly, the subject and the scope of the inquiry, even if it never could be foursquare with what might have been developed if essayed anew at trial, was sufficiently close to satisfy the identity factor (Ohio v Roberts, 448 US 56, supra; California v Green, 399 US 149).

The record also discloses that the right to cross-examine at the preliminary hearing was not frustrated in any meaningful way. The criminal episode was a relatively simple one. A justification defense was never raised. To the extent that the relationship between defendant and the witness or the facts concerning the crime or personal information on the witness could bear on her credibility, these had to be well-known to the defendant, the couple having recently lived together in their “common law” relationship for an entire year. Surely, counsel had access to him as a source of this information even as the preliminary hearing testimony was unfolding. In fact, defense counsel’s cross-examination of the witness on the sequence of events leading up to and encompassing the assault and on her prior knowledge of the defendant was far from perfunctory.

In particular, examination of the transcript indicates that defendant’s claim that the hearing Judge had been too restrictive in his rulings on questions relating to defendant’s sobriety at the time of the assault does not withstand scrutiny. Only a single objection to a question in this line of inquiry, presumably on the issue of intent, was sustained and, further questioning on this subject having thereafter been pursued by counsel, replies were elicited that, though the defendant appeared to have been drinking, he was not drunk. In short, the court never cut off the inquiry. Accordingly, counsel’s argument that the single adverse ruling inhibited her from exploring the matter is simply without foundation.

Indeed, the defendant’s detailing of his other plaints of prejudice is equally insubstantial. For instance, pointing to the witness’ hearing testimony that the closing of her stab wounds had required about 70 sutures, inclusive of 35 to 40 in her chest, defendant contrasts her statement with that made four months later at the time of trial by a hospital intern who, though protesting that his recollection was no longer clear, ventured to estimate that her eight wounds needed some 30 or 40 sutures. Obviously, nothing of consequence turned on this difference. In any event, counsel might have subpoenaed the hospital record and intern to the hearing (CPL 180.60, subd 7; People v Hodge, 53 NY2d 313, 319, supra) and, at trial, for what it might prove, it was put in evidence and was available to controvert the missing witness’ testimony on this subject.

Along the same line, defendant would attach significance to the missing witness’ testimony that the stabbing took place in a “numbers” club, while a police officer, who arrived at the scene after she had fled for her life to the sidewalk in front of the premises where he found her hysterical and bleeding profusely, recorded that area as the location of the crime; here, too, officer and records, like doctor and records, were fully available, for whatever they were worth, for juxtaposing against the reading of the transcript at trial. Even taken together, these can hardly have sufficed to legally undermine the qualifying effect of the criteria for trustworthiness which otherwise surrounded the taking of the witness’ testimony as it was given at the preliminary hearing.

And alleged aggrievement over the fact that the Grand Jury minutes were not available for defense use at the preliminary hearing brooks reality; since preliminary hearings, generally characterized by their promptness, almost always precede Grand Jury hearings, such a standard would almost always interdict the necessitous trial use of preliminary hearing testimony.

Consequently, though reliability is ordinarily to be judged on the circumstances which present themselves at the timé nisi prius passes on admissibility, even in retrospect it could not be said, as a matter of law, that in this case the determination of reliability implicit in the findings by both courts below was not warranted. This said, comment is in order on defendant’s insistence that the trial court, which, pursuant to the limited authorization of CPL 670.20, had not hesitated to pass upon and redact specific questions, answers and colloquy from the text to be read to the jury, also should have permitted defense counsel to withdraw her preliminary hearing cross-examination of the witness in its entirety. The argument is that, since a defendant in a criminal case is under no compulsion to take the stand, present evidence or even ask questions at his trial, a challenge to a witness by cross-examination at a probable cause hearing is not a waiver of the right not to do so for other purposes and, particularly, of the right not to do so at trial. The short answer, however, is that the preliminary hearing testimony of the witness was not the testimony of the defendant and, when given, the portions elicited from the witness on cross were no less an integral part of the testimony than that adduced on direct. Once uttered, the testimony was not the exclusive property of either party. If one decided to. introduce only part of it in evidence, fairness would have permitted the adversary to qualify it by introducing all or part of the rest (McCormick, Evidence [2d ed], §260). Avoidance of distortion and half-truth demands no less. (See People v Rein-gold, 44 AD2d 191, 197-198 [Wither, J.P.].)

Finally, we also reject defendant’s point that “since no other evidence establishing appellant’s commission of the assault [other than the prosecuting witness’ hearing testimony] was presented, appellant’s conviction is not based upon legally sufficient evidence”. In this connection, it, of course, must be acknowledged that it would have been far preferable for this testimony, on direct and on cross, to have been delivered live within eyesight and earshot of the jurors and at a time when nothing less than guilt or innocence was at stake. But necessity having compelled the use of testimony developed under less ideal circumstances, a precautionary inquiry to determine whether there were sufficient “indicia of reliability” for the fact finder to have “a satisfactory basis for evaluating the truth of the prior statement” was in order (Dutton v Evans, 400 US 74, 89; see Mancusi v Stubbs, 408 US 204, 214; California v Green, 399 US 149,161, supra). Having survived this search — one beyond that to which proof offered under conventional circumstances is subjected — the evidence whose reliability here was so certified became part of the record of the trial on a footing, subject only to its ultimate persuasiveness with the triers of fact, equal to that accorded testimony given directly at trial for the first time.

In particular, the testimony so admitted required no corroboration. For unlike the contrary principles which prevailed under Romanesque and ecclesiastical systems of law, the common law of England, as followed in the United States, always emphasizing quality rather than quantity of witnesses, has generally refused to adopt numerical witness requirements (see 7 Wigmore, Evidence [Chadbourn rev], §§2032-2044). As a consequence, while a single, though unimpeached, witness need not be believed, so too is the testimony of a single witness sufficient to support a conviction. For “[o]rdinarily the trier of fact is solely responsible for determining the credibility of witnesses” (People v Daniels, 37 NY2d 624, 628). The exceptions, limited originally to treason and perjury, in New York are few and statutorily engrafted (e.g., CPL 60.50 [corroboration of a defendant’s confession]; CPL 60.22 [accomplice testimony]; Penal Law, § 130.16 [victim of sex crime]; Penal Law, § 210.50 [perjury]; CPL 60.20 [unsworn testimony of a child under 12, or witness unable to understand the nature of an oath]). There is no such requirement for prior testimony either in constitutional or statutory law.

All this does not mean, however, that every time a prima facie case is dependent on the introduction of a prior statement the fact that it has overcome the confrontation hurdle automatically will insulate the case against dismissal. There may be instances in which, though the circumstances surrounding prior testimony have rendered it admissible, in the context of the entire case as it develops, the prior testimony, by itself, will be found insufficient to support a guilty verdict beyond a reasonable doubt. But here, the People not only met the test of trustworthiness posed by the confrontation issue, but, on the record already detailed, the prior testimony could serve as a basis on which to uphold the conviction.

For all these reasons, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones and Meyer concur; Judges Gabrielli and Wachtler concur in result only.

Order affirmed.

      . While the admission of such a testimonial statement is at times said to be justified as an exception to the rule against hearsay, strictly speaking it may be more accurate, conceptually, to recognize that, the right to cross-examine having been respected, it goes in because it is not violative of the rule against hearsay rather than because it is an exception to it (5 Wigmore, Evidence [Chadbourn rev], § 1370). In so observing, we do not gainsay the recognized fact that the “hearsay rules and the Confrontation Clause are generally designed to protect similar values” (California v Green, 399 US 149, 155).

      . In the present case, there was a confrontation between the parties at the time of the preliminary hearing. We, therefore, do not find it necessary to address circumstances in which no confrontation ever takes place.

      . CPL 670.20 provides that a party “who desires to offer in evidence testimony of a witness given in a previous action or proceeding as provided in section 670.10, must so move, either in writing or orally in open court, and must submit to the court, and serve a copy thereof upon the adverse party, an authenticated transcript of the testimony *** sought to be introduced. Such moving party must further state facts showing that personal attendance of the witness in question is precluded by some factor specified in subdivision one of section 670.10. In determining the motion, the court, with opportunity for both parties to be heard, must make inquiry and conduct a hearing to determine whether personal attendance of the witness is so precluded. If the court determines that such is the case and grants the motion, the moving party may introduce the transcript in evidence and read into evidence the testimony contained therein. In such case, the adverse party may register any objection or protest thereto that he would be entitled to register were the witness testifying in person, and the court must rule thereon”.

      . Though one of the Justices of the Appellate Division dissented on an unrelated issue, the five members of that court who heard the case were unanimous in supporting the trial use of the witness’ preliminary hearing testimony.

      . The Sixth Amendment to the United States Constitution, binding on the States by reason of the Fourteenth Amendment (Pointer v Texas, 380 US 400, 404-405), reads: ‘“in all criminal cases the accused shall enjoy the right “to be confronted with the witnesses against him” ’ ”.

      . As to the defendant’s points regarding prosecutorial misconduct on summation, as to which no motion for mistrial was ever made, we find these to have been unpreserved or harmless for the reasons stated in the memorandum of the majority at the Appellate Division.