text:
    Public Loan Company, Inc., Appellant-Respondent, v Herbert K. Hyde et al., Respondents-Appellants.
    Argued April 26, 1979;
    decided May 31, 1979

      POINTS OF COUNSEL

      John H. Hartman for appellant-respondent.
    I. In light of section 358 of the Banking Law, in New York, the Truth in Lending Law and regulations must be construed narrowly against those seeking their enforcement. (Mourning v Family Pub. Serv., 411 US 356; Di Nome v Personal Fin. Co. of N. Y., 291 NY 250; Reich v Railroad Employees’ Personal Loan Co., 291 NY 714; Family Fin. Corp. v Miick, 176 Misc 753; Family Fin. Corp. v McNeilage, 178 Misc 263; Rosenblum v Family Fin. Corp., 179 Misc 1050.) II. Public Loan’s disclosure of its security interest should not be grounds for voiding the loan. (Willis v Town Fin. Corp. of Atlanta, 416 F Supp 10.) III. The court below should have affirmed Special Term in its finding of a lack of jurisdiction over the Hydes’ second counterclaim. (Fenton v Citizens Sav. Assn., 400 F Supp 874; Romano v Romano, 19 NY2d 444.) IV. Respondents-appellants’ public policy arguments are without merit. (Household Fin. Corp. v Goldring, 263 App Div 524, 289 NY 574; Domestic Fin. Corp. v Williams, 174 Misc 227.)

      Rene H. Reixach and David E. Ralph for respondents-appellants.
    Where a loan company discloses to a borrower a security interest which is broader than the law allows that abuse renders the loan void and uncollectible. (Di Nome v Personal Fin. Co. of N. Y., 291 NY 250; McGoldrick v Family Fin. Corp., 287 NY 535.)
   OPINION OF THE COURT

Gabrielli, J.

In a case of first impression we are called upon to determine the effect of an alleged violation of the Truth in Lending Act (US Code, tit 15, § 1601 et seq.) upon a loan made by Public Loan Company, Inc., to defendants. Plaintiff is a loan company licensed under article 9 of the Banking Law (§ 340 et seq.). On November 6, 1972 defendants executed a promissory note wherein they promised to pay to Public Loan the sum of $1,629.60 in 36 monthly installments of $54.60, in consideration of the sum of $1,196.58 actually borrowed plus $433.02 of finance charges and an additional sum for credit life and disability insurance, all at 20.82% annual rate of interest. At the time the loan was made, plaintiff provided defendants with a copy of a loan disclosure statement as mandated by the Federal Truth in Lending Act and section 353 of the Banking Law. The disclosure statement described the security interest as covering defendants’ automobile and "All of the household consumer goods of every kind now owned or hereafter acquired by Debtors in replacement of said consumer goods (and proceeds) now or hereafter located in or about Debtors residence above set forth” (emphasis added).

In early 1976, plaintiff brought this action based on default in payment, seeking payment of the sum of $1,163.70 by means of a motion for summary judgment in lieu of complaint (CPLR 3213); and defendants opposed the motion, interposing three affirmative defenses and two counterclaims based on allegations that the disclosure statement violated the Truth in Lending Act in several respects and, also that Public Loan’s security interest was improperly made in light of subdivision (2) of section 9-204 of the Uniform Commercial Code.

The Appellate Division in modifying the order of Special Term granting plaintiff summary judgment (89 Misc 2d 226), on the law, granted summary judgment to defendants on their second counterclaim based on the violation of the Truth in Lending Act, in the amount of twice the finance charge, amounting to $866.04 and denied summary judgment to plaintiff. The first counterclaim based upon the violation of section 353 of the Banking Law was not allowed.

We hold as a matter of law that the Truth in Lending Act was violated and thus affirm the order of the Appellate Division.

In doing so, we first address plaintiff’s claim that the second counterclaim was time barred. The Truth in Lending Act (US Code, tit 15, § 1640, subd [e]) provides that such an action against a lender is to be commenced "within one year from the date of the date of the occurrence of the violation”. We hold that the interposition of this counterclaim was not time barred. Here, this particular counterclaim arose out of the transaction sued upon and thus is not untimely (CPLR 203, subd [c]).

We now address the merits of defendants’ counterclaim based on the Truth in Lending Act. The loan, as is described in the disclosure statement, provided that plaintiff had a security interest in all "household consumer goods of every kind now owned or hereafter acquired”. This security interest is in direct conflict with the provisions of subdivision (2) of section 9-204 of the Uniform Commercial Code which, in no uncertain terms, limits the security interest a creditor may take in consumer goods to those acquired within 10 days after the creditor gives value. While we have not had occasion to pass upon this question, we have no doubt as to the invalidity of this disclosure statement. The language of both the statement and the statute, together with Regulation Z adopted pursuant thereto, leave no room for disagreement. Regulation Z (12 CFR 226.8 [b] [5]) adopted pursuant to the provisions of the Truth in Lending Act (Tinsman v Moline Beneficial Fin. Co., 531 F2d 815) also requires "a clear identification of the property to which the security interest relates”; and a violation of the regulation or act has been interpreted by the Federal Reserve Board to mean that a creditor may not represent that it has an interest in all after-acquired property of the debtor without violating Regulation Z. This official interpretation given to the act and the regulation by the agency responsible for its interpretation and enforcement should be upheld unless it is completely irrational (Matter of Howard v Wyman, 28 NY2d 434); and such an interpretation is certainly rational in every respect. We note also that in interpreting this Federal statute, the Federal courts have consistently held that security interests in after-acquired property without limitation of time violate the requirements of the act and the regulation (Pollock v General Fin. Corp., 535 F2d 295, 299, mot for reh den 552 F2d 1142, cert den 434 US 891; Tinsman v Moline Beneficial Fin. Co., 531 F2d 815, 818, supra; see, also, Ives v Grant Co., 522 F2d 749, 761; Jones v Allied Loans, 447 F Supp 1121, 1125-1127; Bartlett v Commercial Fed. Sav. & Loan Assoc., 433 F Supp 284, 286-297). Furthermore, a number of State courts have also held there to be a violation when the security interest has been overstated when the after-acquired property interest is without time limitation (see, e.g., Conrad v Beneficial Fin. Co. of N. Y., 91 Misc 2d 643, 647-648; Garza v Allied Fin. Co., 566 SW2d 57, 63-65 [Tex]; Aronson Furniture Co. v Johnson, 47 Ill App 3d 648; Lowery v Finance Amer. Corp., 32 NC App 174, 183-184). The act is designed to prevent "unscrupulous and predatory creditor practices” is remedial in nature, and must be liberally construed to effectuate the legislative intent (Freed Co. v Board of Governors of Fed. Reserve System, 473 F2d 1210, 1214, cert den 414 US 827); and it reflects a transition in policy from a philosophy of let-the-buyer-beware to one of let-the-seller-disclose (see Mourning v Family Pub. Serv., 411 US 356, 377).

The effect of these determinations and our holding today is that, because Public Loan did not properly and clearly set forth the security interest and, indeed, because it was unlawfully overstated and overbroad, such an act constitutes an affirmative misstatement of the lender’s security interest, Public Loan is liable to the defendants in an amount of twice the finance charge imposed, pursuant to the US Code (tit 15, § 1640, subd [a]).

As to the first counterclaim interposed by defendants, we agree with the Appellate Division reasoning that, upon the facts in this case, affirmative relief under section 353 of the Banking Law may not be granted.

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

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

Order affirmed.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    In the Matter of Joseph Jaffe, as District Attorney of Sullivan County, Respondent, v Louis B. Scheinman, as County Court Judge of Sullivan County, et al., Appellants.
    Argued April 26, 1979;
    decided May 31, 1979

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (John J. Warner, Jr., and Shirley Adelson Siegel of counsel), for Louis B. Scheinman, appellant.
    I. Prohibition will not lie to review a court’s discretionary act in a criminal proceeding. (Matter of State of New York v King, 36 NY2d 59; Matter of Roberts v County Ct. of Wyoming County, 34 NY2d 246; Matter of Proskin v County

      Ct. of Albany County, 30 NY2d 15; Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 404 US 823; People ex rel. Lemon v Supreme Ct. of State of N. Y., 245 NY 24.) II. The trial court properly exercised its discretion in compelling the District Attorney to turn over Grand Jury minutes to defendant, or his counsel, for the limited purpose of preparing a memorandum to dismiss the underlying indictment for legal insufficiency. (People v Howell, 3 NY2d 672; People ex rel. Chadbourne v Voorhis, 236 NY 437; Matter of City of Buffalo [Cosgrove], 57 AD2d 47, 42 NY2d 802; Matter of Scotti, 53 AD2d 282; People v Di Napoli, 27 NY2d 229; Matter of Proskin v County Ct. of Albany County, 30 NY2d 15.)

      Carl J. Silverstein for The Legal Aid Society of Sullivan County, Inc., appellant.
    The trial court had the power to allow defendant’s counsel examination of the Grand Jury minutes. (Matter of Proskin v County Ct. of Albany County, 30 NY2d 15; People ex rel. Hirschberg v Supreme Ct. of State of N. Y., 269 NY 392.)

      Joseph Jaffe, District Attorney of Sullivan County (John Michael Hayes and Karen McGee of counsel), respondent pro se.

    I. The trial court plainly exceeded its authority in directing disclosure of Grand Jury minutes to defense counsel by the District Attorney. (People v Howell, 3 NY2d 672; Matter of Proskin v County Ct. of Albany County, 37 AD2d 279, 30 NY2d 15; People v Butor, 75 Misc 2d 558; People v Di Napoli, 27 NY2d 229; Matter of City of Buffalo [Cosgrove], 57 AD2d 47, 42 NY2d 802; Matter of Scotti, 53 AD2d 282; People v Glenn, 173 NY 395.) II. Prohibition lies where the trial court violates specific provisions of the controlling statute and unlawfully orders disclosure of a Grand Jury proceeding. (People ex rel. Hirschberg v Supreme Ct. of State of N. Y., 269 NY 392; Matter of Roberts v County Ct. of Wyoming County, 34 NY2d 246; Matter of Big Black v Ball, 51 AD2d 684; La Rocca v Lane, 37 NY2d 575; Matter of Steingut v Gold, 42 NY2d 311.)

      Robert M. Morgenthau, District Attorney of New York County (Robert M. Pitler and Brian Rosner of counsel), for the New York State District Attorney’s Association, amicus curiae.

    The trial court’s order permitting the defense to inspect the Grand Jury minutes prior to trial was an exercise of judicial authority explicitly forbidden by a statute. By prohibiting the pretrial disclosure of minutes, the Legislature recognized that the dangers of disclosure, and unreviewable judicial abuses in granting such disclosure, outweigh the benefits of disclosure. Since the court, in an otherwise unreviewable abuse of authority, ignored the Legislature’s explicit limitations of its power, the extraordinary writ of prohibition was properly granted. (People v Molineux, 27 Misc 60; Eighmy v People, 79 NY 546; People v Percy, 36 NY2d 756; People v Longo, 39 AD2d 633; People ex rel. Davidson v Gilon, 126 NY 147; Hoey v Gilroy, 129 NY 132; Matter of Taylor, 567 F2d 1183; People v Clarkson, 50 AD2d 903; People v King, 48 AD2d 457; People v Nitzberg, 289 NY 523.)

      Charles J. Hynes, Deputy Attorney-General (Arthur G. Weinstein of counsel), amicus curiae.

      A Trial Judge is not authorized to disclose Grand Jury minutes to defendant to facilitate a motion to dismiss the resulting indictment on grounds of legal insufficiency. (Matter of Proskin v County Ct. of Albany County, 30 NY2d 15; People v Howell, 3 NY2d 672; People v Di Napoli, 27 NY2d 229; Matter of Hynes v Moskowitz, 44 NY2d 383; Matter of State of New York v King, 36 NY2d 59.)

      John F. Keenan, Deputy Attorney-General and Special State Prosecutor (Mark M. Baker and Carl M. Bornstein of counsel), amicus curiae.

    The common-law power of a motion court to authorize, in its discretion, the disclosure to defendant of the minutes of Grand Jury proceedings in support of a motion to dismiss an indictment for insufficiency of the evidence, did not survive the advent of the Criminal Procedure Law. (Matter of Proskin v County Ct. of Albany County, 30 NY2d 15; People v Sweeney, 213 NY 37; People ex rel. Lemon v Supreme Ct. of State of N. Y., 245 NY 24; People ex rel. Martin v Brady, 168 App Div 108; Matter of Montgomery, 126 App Div 72; People ex rel. Cohn v County Ct. of Schenectady County, 11 AD2d 438; People v Howell, 3 NY2d 672; People v Glenn, 173 NY 395; People v Sexton, 187 NY 495; People v Butor, 75 Misc 2d 558.)
   OPINION OF THE COURT

Chief Judge Cooke.

On April 9, 1978, a tragic fire claimed the lives of five persons in Monticello. Within a few weeks, Michael Kazmarick was indicted by a Sullivan County Grand Jury for five counts of murder in the second degree, accused of causing the deaths "Under circumstances evincing a depraved indifference to human life” (Penal Law, § 125.25, subd 2). Counsel for Kazmarick quickly moved to dismiss the indictment, and for other alternative relief, citing an alleged insufficiency of evidence before the Grand Jury. Serious questions were raised by the defense as to whether the indictment was grounded upon "legally sufficient evidence” (CPL 190.65, subd 1; 70.10, subd 1). To assist the defense in the preparation of a memorandum of law on the relevant issues, respondent Sullivan County Judge ordered petitioner, the Sullivan County District Attorney, to furnish defense counsel a transcript of the Grand Jury proceedings. Strenuously objecting, petitioner unsuccessfully urged the County Court, upon reargument, to set aside its prior decision. Petitioner then initiated this article 78 proceeding to prohibit release of the Grand Jury minutes. The Appellate Division, by a divided vote, granted the petition and directed respondents to desist from further proceedings to enforce the County Court order.

The judgment of the Appellate Division should be affirmed. CPL 210.30, which establishes the procedural steps to be followed with respect to a motion to dismiss an indictment and to inspect Grand Jury minutes, confers no authority upon a Trial Judge to permit inspection of the minutes by a defendant or his attorney. Absent an alternative source of authority or circumstances not present on this record, a Trial Judge is without power to order disclosure of the Grand Jury proceedings on a motion seeking inspection and dismissal of the indictment. When a court threatens to act in violation of this principle, a writ of prohibition may issue as an appropriate remedy.

At the threshold, it is held that prohibition is a proper vehicle for review of the County Court order (see, generally, Matter of Dondi v Jones, 40 NY2d 8, 12-15; Matter of Proskin v County Ct. of Albany County, 30 NY2d 15, 18). An extraordinary remedy available in only certain narrowly defined situations, prohibition may issue, in the discretion of the court, " 'to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction’ ” (Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 437; see La Rocca v Lane, 37 NY2d 575, 578-579; Matter of Nigrone v Murtagh, 36 NY2d 421, 423-424; Matter of State of New York v King, 36 NY2d 59, 62). While a mere error of law in a pending criminal action, even if otherwise unreviewable, may not be redressed in a prohibition proceeding, the writ may be invoked to prevent an unwarranted abuse of the secrecy of the Grand Jury (compare Matter of State of New York v King, 36 NY2d 59, 62, supra, with Matter of Proskin v County Ct. of Albany County, 30 NY2d 15, 18, 21, supra; see, also, Note, The Writ of Prohibition in New York — Attempt to Circumscribe An Elusive Concept, 50 St John’s L Rev 76, 91-94). Inasmuch as the threatened harm in the present case consists of an allegedly unauthorized disclosure of Grand Jury proceedings, prohibition will lie in the discretion of the court (see Matter of Dondi v Jones, 40 NY2d 8, 13, supra).

Prior to the enactment of the Criminal Procedure Law, existing decisional law left little doubt as to the trial court’s power to grant a motion for inspection of the Grand Jury minutes underlying an indictment (see, e.g., People ex rel. Hirschberg v Supreme Ct. of State of N. Y., 269 NY 392, 394-396 [dismissing petition for writ of prohibition]; People v Sweeney, 213 NY 37, 42; see, also, People ex rel. Lemon v Supreme Ct. of State of N. Y., 245 NY 24, 31; Shapiro, A New York Criminal Law Refresher, 37 Brooklyn L Rev 35, 37). A trial court faced with a motion seeking inspection of the minutes possessed all but unfettered discretion to grant or withhold the requested relief, and its ruling was effectively insulated from appellate review by this court (compare People v Sweeney, supra, at p 42, with Matter of Schneider v Aulisi, 307 NY 376, 382). As a result, a patchwork of procedural and substantive rules developed in the area, often varying from trial court to trial court (see Matter of Proskin v County Ct. of Albany County, 30 NY2d 15, 23, supra [dissenting opn]). Indeed, confusion was so pervasive that no uniform definition of a motion to inspect ever evolved. In certain cases the motion was characterized as a request to the court for an in camera inspection of the transcript of the Grand Jury proceedings (see, e.g., People v Howell, 3 NY2d 672, 675), while in others it was viewed as an application for disclosure of the minutes to defendant (see, e.g., People ex rel. Hirschberg v Supreme Ct., 269 NY 392, 395, supra; People v Molineux, 27 Misc 60, 64; see, also, People v Schifter, 34 AD2d 561). In short, there was no certainty as to whether a grant of the motion would lead to an inspection of the minutes by the court, or physical release of a transcript of the Grand Jury proceeding to the defendant.

Against this historic backdrop, CPL 210,30 was enacted. That section carefully delineates the procedural path to be followed on a motion to inspect the Grand Jury minutes and to dismiss the indictment for insufficient evidence. Subdivision 1 requires that a motion to dismiss for insufficient Grand Jury evidence be accompanied by a motion to inspect the minutes. As defined in subdivision 2, "A motion to inspect grand jury minutes is a motion by a defendant requesting the court to examine the stenographic minutes of a grand jury proceeding resulting in an indictment for the purpose of determining whether the evidence before the grand jury was legally sufficient to support the charges”. (Emphasis added.) Disposition of the motion is governed in part by subdivision 3: "If the court determines that there is reasonable cause to believe that the grand jury evidence may not have been legally sufficient, it must grant the motion to inspect the grand jury minutes. It must then proceed to examine the minutes(Emphasis added.)

By adopting section 210.30, the Legislature has unraveled the morass which had plagued these critical pretrial proceedings. More important, that body has indicated, in unmuted strains, that the court and not the defendant is to inspect the transcript of the Grand Jury proceedings when the legal sufficency of the evidence is brought into question. Read as an integrated whole, the language of CPL 210.30 admits of no other interpretation. Indeed, a draftsman of the legislation, Judge Richard Denzer, bears witness to the Legislature’s conscious choice of the in camera inspection method: "It may be noted that some judges, in granting the motion to inspect, have occasionally ordered the minutes given to the defendant and allowed adversarial argument on the sufficiency issue for purposes of determining the dismissal motion. No such authorization is provided in the CPL section” (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 210.30, p 357). The inescapable conclusion is that defendant Kazmarick and his counsel are not entitled to view a transcript of the Grand Jury proceedings.

Of course, the procedure ordained by CPL 210.30 highlights the role of the court in evaluating the legal sufficiency of the Grand Jury evidence. A defendant’s procedural right to move for dismissal of an indictment founded upon inadequate or improper evidence is of constitutional dimension (People ex rel. Hirschberg v Supreme Ct., 269 NY 392, 395, supra; People v Glenn, 173 NY 395, 400). Were this not so, the door would be opened to grave abuses and the safeguards against arbitrary and unwarranted exercise of the State prosecutorial power would be seriously jeopardized. "It is a serious matter for any individual to be charged with crime whether the charge be true or false” and it is as important " 'that he be fairly and justly accused * * * as that he be fairly and impartially tried’ ” (People v Minet, 296 NY 315, 322, 323, quoting Matter of Gardiner, 31 Misc 364, 375). On the trial court rests the weighty burden of protecting against these abuses by ensuring the sufficiency of the evidence before the Grand Jury. To that end, CPL 210.30 (subd 4) authorizes the court to conduct an in camera inspection of the Grand Jury minutes even where the defendant fails to demonstrate reasonable cause to believe the evidence was insufficient. If there is any doubt as to the adequacy of the evidence in a given case, the court should not hesitate to conduct an examination of the minutes under this provision (cf. Matter of Miranda v Isseks, 41 AD2d 176, 178-179).

In sum, respondents were properly restrained from taking any further steps to disclose the secret Grand Jury minutes to defendant. A Trial Judge is without power, in these circumstances, to make an order allowing defendant or his counsel to inspect the minutes of the Grand Jury proceeding.

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

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

Judgment affirmed.


author: Gabrielli, J.

text:
    The People of the State of New York, Appellant, v Lucia Kennedy, Respondent.
    Argued April 23, 1979;
    decided June 5, 1979

      POINTS OF COUNSEL

      John J. Santucci, District Attorney (Eileen M. Sullivan of counsel), for appellant.
    I. The court below erred in its determination that the evidence adduced at trial was legally insufficient. The circumstantial evidence introduced at trial excluded to a moral certainty all reasonable hypothesis but that of guilt. (People v Benzinger, 36 NY2d 29; People v Borrero, 26 NY2d 430; People v Taddio, 292 NY 488; People v Bonifacio, 190 NY 150; People v Von Werne, 41 NY2d 584; People v Wachowicz, 22 NY2d 369; People v Montanez, 41 NY2d 53; People v Suffern, 267 NY 115; People v Lagana, 36 NY2d 71.) II. Defendant failed to sustain his burden of demonstrating prejudicial impact in use of his prior conflicts with the law at trial for impeachment purposes. In any event, the trial court’s ruling on defendant’s Sandoval motion was proper. (People v Sandoval, 34 NY2d 371; People v Duffy, 36 NY2d 258; People v Mayrant, 43 NY2d 236; People v Sorge, 301 NY 198; People v Kass, 25 NY2d 123; People v Schwartzman, 24 NY2d 241; Michelson v United States, 335 US 469; People v Alamo, 23 NY2d 630.) III. Appellant was afforded a fair trial. The prosecutor’s summation was proper. (People v Broady, 5 NY2d 500; People v Pindar, 210 NY 191; People v Crimmins, 36 NY2d 230; People v McLaughlin, 291 NY 480; People v Alicea, 37 NY2d 601; People v Wood, 12 NY2d 69; Williams v Brooklyn El. R. R. Co., 126 NY 96; People v Ashwal, 39 NY2d 105; People v Priori, 164 NY 459; People v Tassiello, 300 NY 425.)

      James B. Jordan and William E. Hellerstein for respondent.
    I. The court below correctly held that respondent’s guilt was not proven beyond a reasonable doubt by the People’s circumstantial case, which failed to rebut the reasonable hypothesis that Wilfredo O., who twice confessed to the murder, fired the single bullet that killed Bernard Jackson. (People v Cleague, 22 NY2d 363; People v Woltering, 275 NY 51; People v Montanez, 41 NY2d 53; People v Lagana, 36 NY2d 71; People v Benzinger, 36 NY2d 29; People v Wachowicz, 22 NY2d 369.) II. Respondent was denied a fair trial by the prosecutor’s extensive cross-examination of the sole defense witness, Mrs. Rosa Kennedy, regarding respondent’s prior bad acts, to invite a jury verdict based upon an assessment of criminal propensity and character. (People v Vails, 43 NY2d 364; People v Duffy, 36 NY2d 258; People v Van Gaasbeck, 189 NY 408; People v Kuss, 32 NY2d 436; People v De Jesus, 42 NY2d 519; People v Mirenda, 23 NY2d 439; People v Ashwal, 39 NY2d 105; People v Crimmins, 36 NY2d 230; People v Alicea, 37 NY2d 601; People v Sandoval, 34 NY2d 371.)
   OPINION OF THE COURT

Gabrielli, J.

In the early evening hours of April 3, 1974, the police were summoned to an alleyway located behind a Key Foods Supermarket near the intersection of Sutphin Boulevard and 119th Avenue in the Borough of Queens. There they found the lifeless body of Bernard Jackson, who had been fatally shot in the right temple with a .25 caliber pistol belonging to Lucia Kennedy, the defendant in this prosecution for Jackson’s murder. The testimony at Kennedy’s trial showed that Kennedy was a member of the Savage Skulls, a neighborhood youth gang, while Jackson had belonged to the Seven Crowns, a rival gang with which Kennedy had previously been associated. A week or two before the murder, Kennedy had told Mark Robinson, another member of the Savage Skulls, to "[p]ut the word out that I’m going to kill [Jackson]”, because of Kennedy’s belief that Jackson had assaulted Kennedy’s girl friend. Sandra Simon, a young woman who knew both Kennedy and Jackson, testified that she saw them together about 30 minutes prior to the murder on a street which was only a few blocks away from what was soon to become the scene of Jackson’s death. According to her testimony, Kennedy was hitting Jackson on the face and chest while holding him by his collar. Jackson was not resisting Kennedy physically, and Simon heard him say "[l]et me go. It wasn’t me. Stop hitting me. You and that damn gun.” Additional testimony was provided by Sheldon Dobie, another member of the Savage Skulls, who was standing in front of a liquor store on Sutphin Boulevard near the supermarket at the time of the murder. He testified that Kennedy, Jackson, and several other youths walked by him while he was standing there, and that Kennedy had one hand on Jackson’s shoulder and carried the murder weapon in his other hand. They walked to the intersection of Sutphin Boulevard and 119th Avenue and then turned the corner in the direction of the alleyway and disappeared from Dobie’s sight. A minute or two later, several other youths, some of whom he recognized as fellow members of the Savage Skulls, also passed Dobie and followed the same route. About a minute later he heard a shot, and then saw all but one of the youths who had passed him come running back around the corner and up the block. The one who did not return was, of course, Jackson, whom they had left bleeding to death on the pavement behind them.

Following an investigation of the murder, Kennedy was arrested and charged with the crime of murder in that he intentionally caused the death of Bernard Jackson "by shooting him with a pistol”. Meanwhile, another member of the Savage Skulls, Wilfredo O., a juvenile, had been questioned by police in the course of an unrelated investigation. During that interrogation, he told investigating officers that he had killed Jackson, and made arrangements with other members of the gang to have the murder weapon turned over to the police. On May 16, 1974, Wilfredo O. was adjudicated a juvenile delinquent following his admission in Family Court that he had committed an unspecified act which would have constituted the crime of manslaughter in the second degree had it been committed by an adult, and was transferred to the custody of the State Division for Youth for a period of 18 months. It appears from the testimony of police officers at Kennedy’s trial that the act constituting manslaughter to which Wilfredo O. confessed was the murder of Bernard Jackson. Wilfredo O. was released from custody prior to Kennedy’s trial, and was not available to testify at that trial. Instead, testimony concerning his confession was elicited by defense counsel during cross-examination of the police officers to whom Wilfredo O. had made his statements.

.Kennedy was not indicted for accessorial conduct, and the trial court refused to give an acting in concert charge to the jury. Instead, the court charged the jury that in order to convict Kennedy they must find that he had actually shot Bernard Jackson. The jury convicted Kennedy of murder, and he appealed to the Appellate Division. That court (59 AD2d 539) at first reversed his conviction and ordered a new trial because of certain perceived trial errors. Upon defendant’s motion for reargument of the appeal, however, the Appellate Division granted the motion to reargue, concluded that the People had failed to prove defendant’s guilt beyond a reasonable doubt, and ordered the indictment dismissed. The People now appeal to this court. We conclude that the People did meet their burden of proof and that the indictment should not be dismissed, but that a new trial is needed because of certain errors discussed below.

Turning first to defendant’s claim that the People failed to prove him guilty beyond a reasonable doubt, we disagree with defendant’s contention that he may not be convicted, despite the overwhelming circumstantial evidence of his guilt, simply because another person, Wilfredo O., has confessed to the crime. In essence, defendant argues that the mere existence of evidence which would preclude his conviction if believed by the jury suffices to prevent his conviction even if that evidence is disbelieved by the jury, when the case against him is based on circumstantial evidence. So viewed, defendant’s argument contains the seeds of its own destruction, for a jury faced with conflicting evidence may accept some and reject other items of evidence, absence any logical inconsistency in the jury’s choice, regardless of whether that evidence is circumstantial or direct.

It has long been the law in this State that a criminal conviction based upon circumstantial evidence is subject to strict judicial scrutiny (see People v Bennett, 49 NY 137, 144-145). This is so not because circumstantial evidence is any less reliable than direct evidence, for each of the two types of evidence is subject to certain inherent weaknesses (see 1 Wigmore [3d ed], Evidence, § 26). Indeed, there is much to be said for the argument that direct testimony may often be of more dubious value, as is indicated by the extensive literature on the lack of reliability of eyewitness testimony (see, e.g., O’Connor, "That’s the Man”: A Sobering Study of Eyewitness Identification and the Polygraph, 49 St John’s LR 1; Borchard, Convicting the Innocent) as well as the often expressed judicial concern with the problem of impermissibly suggestive identification procedures (see, e.g., United States v Wade, 388 US 218, 228-239). Rather, cases involving circumstantial evidence must be closely reviewed because they often require the jury to undertake a more complex and problematical reasoning process than do cases based on direct evidence. In the latter situation, the jury is normally concerned primarily with assessing the credibility of witnesses, a role for which the jury is superbly suited. Where, however, the defendant’s guilt is to be proven, if at all, by circumstantial evidence only, the jury must attempt a careful and close analysis of the evidence and determine what inferences can and should be drawn not merely from each separate piece of evidence, but from the whole complex of interrelated information which is presented in evidence. This is not to suggest, of course, that a jury need not carefully analyze the evidence in a case based on direct evidence. However, in such a case, the jury has less need to depend on inference, and is more likely to be faced with the relatively less complex, although no less difficult task of determining which witnesses are telling the truth. In a circumstantial evidence case, in contradistinction, the reasoning process tends to be more complex, and is thus more subject to error. Hence, close judicial supervision is necessary to ensure that the jury does not make inferences which are based not on the evidence presented, but rather on unsupported assumptions drawn from evidence equivocal at best (see People v Cleague, 22 NY2d 363, 367). Careful review of such cases is needed to decrease "a danger legitimately associated with circumstantial evidence — that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusions based on probabilities of low degree” (People v Benzinger, 36 NY2d 29, 32).

We have often had occasion to discuss the proper standard for testing the sufficiency of a conviction based solely on circumstantial evidence, and have clearly stated that the conclusion of guilt must be consistent with and flow naturally from the proven facts, and that those facts viewed as a whole must exclude "to a moral certainty” every conclusion other than guilt (e.g., People v Cleague, supra, at pp 365-366; People v Benzinger, supra, at p 32). Although it is easily stated, this standard often appears difficult of application, and sometimes "tends to be a confusing form of words” (People v Borrero, 26 NY2d 430, 435). Such difficulties often occur in the attempt to apply general principles of law to particular cases. This is so both because of the ambiguity necessarily inherent in the flawed device of language, which only approximates and never quite encompasses the exact idea sought to be expressed, and because of humanity’s ability to create distinctions even where there exist no real differences. Although this problem can never be completely avoided, it may to some extent be limited by continued reference to and reconsideration of the appropriate underlying principles, and by the conscious avoidance of undue reliance upon all too deceptive catchwords and set phrases rather than logic and reason.

Since the rationale underlying the requirement of careful scrutiny of decisions based on circumstantial evidence is the comparative ease with which logical flaws can creep into the reasoning process in such cases, our basic inquiry must always be whether the inferences which the jury must have drawn from the evidence in order to convict the defendant, are in fact to be found in that evidence. As we have previously stated in determining whether the People had met their burden of proof through the use of circumstantial evidence, "[i]n the end, it is a question whether common human experience would lead a reasonable man, putting his mind to it, to reject or accept the inferences asserted for the established facts” (People v Wachowicz, 22 NY2d 369, 372).

In this case, the circumstantial evidence of Kennedy’s guilt is indeed strong, and must be viewed in the light most favorable to the People since they have prevailed at trial and thus we are required to assume that the jury credited the People’s witnesses (People v Montanez, 41 NY2d 53, 57). So viewed, the People proved that Kennedy believed he had a motive to kill Jackson, and had previously expressed his intent to do so; that Jackson had been taken by Kennedy to the scene of the murder at gun point; and that the fatal wound was inflicted by Kennedy’s gun, which was seen in Kennedy’s hands only moments before the murder. If this evidence does not suffice to sustain Kennedy’s conviction, it would be difficult to conceive of any evidence which could so serve. Thus, it is evident that the weight of evidence of Kennedy’s guilt, taken by itself, is clearly sufficient to sustain his conviction. The question before us is whether a different resolution is mandated by the fact that someone else has confessed to the crime. We conclude that it is not.

Initially, we note that the evidence concerning Wilfredo O.’s alleged involvement in the crime was essentially presented to the jury during the cross-examination of police officers concerning admissions he had made to them and others. As such, this evidence itself was both hearsay and circumstantial. Moreover, other than those admissions and Wilfredo O.’s subsequent confession in Family Court to unspecified acts which would constitute manslaughter if committed by an adult, there was no proof that Wilfredo O. was the murderer, and indeed no proof that he was even connected with the crime. No witness placed Wilfredo O. at the scene of the crime, and his assistance in recovering the pistol appears to have been limited to asking other gang members to arrange for its surrender to the police. In short, this evidence was hardly conclusive. Even were it more persuasive, however, the result would be the same. Clearly, if the jury had believed Wilfredo O.’s statements, if they had believed that Wildredo O. rather than Lucia Kennedy slew Bernard Jackson, then the jury would have been required to acquit Kennedy under the clear and explicit charge given by the trial court. The jury did not acquit Kennedy, however, and hence we must assume that the jury did not credit the statements Wilfredo O. had made to the police. This determination was within the province of the jury, and should not be overturned by a reviewing court (see People v Bennett, 49 NY 137, 144, supra). Any other conclusion would lead to the establishment of a rule of law mandating that any item of evidence tending to exculpate a defendant, no matter how dubious its validity, would serve to preclude a conviction based on circumstantial evidence. Such a rule would accord with neither law nor logic, and we refuse to adopt it.

A jury does not lose its ability and power to assess the credibility of statements and witnesses and to accept or reject the truth of evidentiary material simply because the evidence submitted is in large part circumstantial. To so hold would be to misconstrue the criteria for reviewing decisions based on circumstantial evidence discussed above. Careful scrutiny of such cases is required because of the danger that the fact finder will simply assume too much on the basis of too little evidence. Where, however, there exists evidence, circumstantial or otherwise, which is sufficient to prove the defendant guilty beyond a reasonable doubt if that evidence is accepted by the jury, a verdict of guilty may not be overturned simply because the jury was also presented with other evidence, be it circumstantial or direct, which, if believed by the jury, would mandate an acquittal. This is so because it is for the jury to determine what evidence is to be believed and what evidence is to be discredited, as long as that decision does not involve any logical inconsistencies.

We have repeatedly stated that in a circumstantial evidence case "the facts proved must all be consistent with guilt and inconsistent with innocence” (People v Borrero, 26 NY2d 430, 434-435, supra). This does not mean, however, that every bit of evidence submitted to the jury must be inculpatory rather than exculpatory, nor that the introduction of a single item of exculpatory evidence mandates acquittal. Were this the law, a defendant willing to perjure himself could always avoid conviction where the People’s case is based upon circumstantial evidence, no matter how persuasive, by the simple stratagem of taking the stand and asserting his innocence, no matter how suspect his testimony. This is not the law. Rather, it is the function of the jury to sift through the conflicting evidence, direct or circumstantial, and to determine whether the defendant’s guilt has been proven beyond a reasonable doubt. Accordingly, the task of a court faced with a challenge to a verdict based on circumstantial evidence is to determine, by application of the standards discussed above, whether there exists sufficient inculpatory evidence to prove defendant’s guilt beyond a reasonable doubt if credited by the jury.

In this case, the evidence of Kennedy’s guilt was overwhelming, and the jury was free to disbelieve the admissions made by Wilfredo O. Hence, we must conclude that the verdict of guilty was based on proof of guilt beyond a reasonable doubt. Accordingly, the order of the Appellate Division dismissing the indictment cannot be sustained.

This conclusion, however, does not fully resolve the appeal, for the defendant contends that a new trial is necessary because of certain errors in his first trial. Our examination of the record convinces us that a new trial is indeed necessary, both because of the trial court’s failure to apply the appropriate standards in deciding defendant’s motion to limit cross-examination into his prior behavior should he take the stand on his own behalf, and because of the prosecutor’s improper conduct in presenting that same information to the jury via cross-examination of defendant’s mother even though defendant himself did not testify.

Prior to trial, defendant moved to limit the extent of permissible cross-examination by the People into prior immoral, vicious, or criminal acts committed by him should he testify on his own behalf. Upon learning that those prior acts had not eventuated in convictions, the court stated that the law was well settled that the considerations we reiterated in People v Sandoval (34 NY2d 371) for determining when such cross-examination should be allowed, were applicable only to convictions, and could not serve to preclude questioning about incidents which did not result in convictions. This ruling was erroneous, since those standards are to be applied to cross-examination into alleged immoral, vicious, or criminal acts, regardless of whether those acts resulted in convictions (see People v Sandoval at p 373, supra). Since the court applied the wrong criteria in deciding defendant’s motion and thus did not properly exercise its discretion to determine the extent of permissible cross-examination, there must be a new trial (see People v Davis, 44 NY2d 269, 275-276).

The court also erred in permitting the prosecutor to extensively cross-examine defendant’s mother concerning her personal knowledge of prior immoral, vicious, or illegal acts by defendant. Mrs. Kennedy testified on behalf of the defense and without objection that she had never seen the murder weapon, that defendant worked and contributed money to the family, and that he had never been convicted of a crime. On cross-examination, the People were permitted, over defense objection, to question her about her knowledge of her son’s prior possession of a gun at a specified time and place. The People contend that this questioning was permissible as an attempt to impeach Mrs. Kennedy, whom they characterize as a character witness. Assuming, arguendo, that Mrs. Kennedy did indeed serve as a character witness, any impeachment cross-examination should have been limited to her knowledge of defendant’s reputation, and should not have extended to her personal knowledge of the underlying acts (see Richardson, Evidence, § 153).

Accordingly, the order appealed from should be modified to the extent of reinstating the indictment and remitting the case to Supreme Court, Queens County, for a new trial, and, as so modified, affirmed.

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

Order modified and case remitted to Supreme Court, Queens County, for a new trial in accordance with the opinion herein and, as so modified, affirmed.


author: Jones, J.

text:
    In the Matter of Abraham & Straus, a Division of Federated Department Stores, Inc., Respondent, v James H. Tully et al., Constituting the State Tax Commission, Appellants.
    Argued March 22, 1979;
    decided May 1, 1979

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow and Ruth Kessler Toch of counsel), for appellants.
    The court below committed reversible error in concluding, that for the tax periods involved, the State Tax Commission cannot require that the first payments received by a vendor in a credit sale be applied first to sales taxes owed by the purchaser before the vendor applies any part of the payments to the purchase price. (Matter of Yonkers Plumbing & Heating Supply Corp. v Tully, 62 AD2d 18, 44 NY2d 949.)

      Steven J. Stein, Robert J. Levinsohn and Lois D. Thompson for respondent.
    I. The decision of the court below should be affirmed because the Tax Commission’s construction of regulation 525.5 was contrary to the clear language of the regulation and to the interpretation which must be given it in light of its history. (Matter of Lawson v Cornelius, 35 Misc 2d 816.) II. The decision of the court below should be affirmed since the Tax Commission’s interpretation of regulation 525.5 was at variance with the intent of the authorizing statute, subdivision (e) of section 1132 of the Tax Law. (Matter of Lockport Union-Sun & Journal v Preisch, 7 AD2d 502, 8 NY2d 54; Matter of Foscarinis [Corsi], 284 App Div 476; Matter of Dobess Realty Corp. v Magid, 186 Misc 225; Helvering v Tobacco Co., 306 US 110; Bathrick Enterprises v Murphy, 27 AD2d 215, 23 NY2d 664; Matter of American Locker Co. v Gallman, 38 AD2d 105, 32 NY2d 175; Matter of Nehi Bottling Co. v Gallman, 39 AD2d 256, 34 NY2d 808; Matter of Airlift Int. v State Tax Comm., 52 AD2d 688; Matter of American Cyanamid & Chem. Corp. v Joseph, 308 NY 259.) III. The Tax Commission’s interpretation of regulation 525.5 also violated A & S’ rights to due process and equal protection. (Morey v Doud, 354 US 457; Hamilton Nat. Bank v District of Columbia, 156 F2d 843, 176 F2d 624, 338 US 891.)
   OPINION OF THE COURT

Jones, J.

Under a regulation which provides that where the proceeds of a sale have been ascertained to be uncollectible the vendor may exclude such receipts from his sales tax return, it is unreasonable for the State Tax Commission to require allocation of a partial payment on such a sale first to payment of the sales tax computed on the full purchase price.

In this proceeding brought under CPLR article 78 to annul a determination by the State Tax Commission assessing a deficiency in sales and use taxes due from petitioner for the period from August 1, 1965 through August 31, 1968 we draw the facts from a statement of agreed facts submitted to the commission by petitioner and the Sales Tax Bureau of the Department of Taxation and Finance.

During the period in question petitioner owned and operated six retail department stores in the State, one of which was in New York City. On December 18, 1970 after the Sales Tax Bureau had audited petitioner’s sales tax returns for the 13 tax periods ending August 31, 1968, it issued a notice of determination and demand for payment of additional taxes alleged to be due, together with interest and penalties. Petitioner sought revision of the determination and on October 23, 1975 a settlement agreement was entered into resolving all but one substantive issue relating to the audit. That issue concerned petitioner’s deduction from sales on which tax liability was computed of bad debts, consisting of credit sales previously reported but which had subsequently proved to be uncollectible. The bureau auditors had added certain of these bad debts to taxable sales reported on petitioner’s returns.

In the years 1965 through 1968 petitioner made an average of approximately 12 million credit sales a year, offering three kinds of credit accounts to its customers. On one — the "regular charge account” — no down payment on purchases was required, no finance charges were assessed and the entire balance was due in 30 days after the billing date. The "permanent budget account” was a revolving credit account with payments spread over a number of months; no down payment was required but a minimum monthly payment and finance charges were assessed unless the full balance shown on the monthly bill was paid. The "convenient payment account” was an installment sale account for more substantial purchases with a down payment sometimes necessary, minimum monthly payments required, and finance charges imposed unless the balance on the monthly statement was paid in full. On none of the accounts did the monthly statement rendered to the credit customer set forth the price of goods purchased and the sales tax separately in stating the balance of the account.

In each form of account if payment was not received after a specified period of time or with a defined frequency, varying with the kind of account, the balance due on the account was written off as an uncollectible bad debt and was sent to an attorney for collection. Petitioner calculated its bad debt losses every three months from totals of uncollectible balances on individual accounts less any sums collected during the period from accounts previously written off. The figure thus arrived at was the bad debt deduction that it took in arriving at the total taxable sales reported on its sales tax returns. As a result of these computations petitioner effectively paid sales tax on a pro rata basis related to the amount actually received on sales made on credit — the amount of tax it paid bore the same relation to the amount of tax due on the total purchase price that the amount of money collected bore to the total purchase price. Thus, if the purchase price of an item subject to a 5% tax was $100 but the store collected only $20 on the sale, it paid $1 in tax rather than the $5 that it would have paid had the full purchase price been collected.

The Sales Tax Bureau’s auditors did not employ this method of determining petitioner’s sales tax liability. Instead, they allocated any payments made by the customer first to the entire amount of the sales tax on the item purchased and any balance to the purchase price. In the illustration just cited, of the $20 payment received they allocated the first $5 to the sales tax and the remaining $15 to the purchase price of the item, so that no bad debt deduction was allowed for that sale and petitioner was subjected to liability for the full $5 sales tax. If the amount received by petitioner on a particular sale was less than the amount of the tax computed on the sales price his tax liability was limited to the amount of the payment received. A full bad debt deduction was allowed only in those instances in which no payment whatsoever had been received.

By applying the rules described to a random sample of petitioner’s accounts, the auditors disallowed varying percentages of the bad debt deductions taken by it (depending on the kind of accounts being considered) and computed a sales tax deficiency, which was confirmed by the State Tax Commission. The commission however waived interest payments in excess of the minimum and also penalties, concluding that petitioner’s delay in making the payments demanded was excusable. In this connection it noted that, prior to institution of the State sales tax on August 1, 1965, petitioner had paid New York City sales tax on sales at its New York City store on a pro rata basis, that such payment had been allowed by the city under a regulation substantially similar to the State regulation in effect during the period in question, and that petitioner had had no written notification that the State would calculate State sales tax liability by applying payments received first to the sales tax applicable to the total purchase price until January 6, 1969.

In this proceeding to review the Tax Commission’s rejection of petitioner’s challenge to the Sales Tax Bureau’s disallowance of bad debt deductions, the Appellate Division, to which the matter was transferred by order of Supreme Court, annulled the commission’s determination as irrational and unreasonable on the authority of Matter of Yonkers Plumbing & Heating Supply Corp. v Tully (62 AD2d 18, app dsmd 44 NY2d 949). We concur in that disposition.

At the time in question relevant provisions of the Tax Law imposed the sales tax on receipts from retail sales of tangible personal property (§ 1105, subd [a]) and defined "receipt” as "The amount of the sale price of any property * * * taxable under this article, valued in money, whether received in money or otherwise, including any amount for which credit is allowed by the vendor to the purchaser” (§ 1101, subd [b], par [3]). A subdivision of section 1132 provided however: "The tax commission may provide, by regulation, for the exclusion from taxable receipts * * * of amounts representing sales where the contract of sale has been cancelled, the property returned or the receipt * * * has been ascertained to be uncollectible or, in case the tax has been paid upon such receipt * * * for refund of or credit for the tax so paid.” Pursuant to the authority thus vested in it, in November, 1965 the Tax Commission promulgated regulation 525.5 (a), which provided in part: "Where a contract of sale has been canceled, the property returned or the receipt * * * has been ascertained to be uncollectible, a vendor of tangible personal property * * * may exclude such receipts * * * from his return. Where the tax has been paid and reported in a return, a credit for the tax paid may be taken on any subsequent return filed by the vendor * * * or a claim for refund of the tax paid upon such receipt * * * may be filed”. (20 NYCRR 525.5 [a].)

The interpretation placed on subdivisions (d) or (e) of section 1132 of the Tax Law and on regulation 525.5 (a) by the Sales Tax Bureau and by the State Tax Commission in this proceeding would all but emasculate the statute and regulation. The statute and the regulation obviously intend that a vendor shall be relieved of sales tax liability to the extent that the receipt from a sale proves uncollectible, so that the taxes which the vendor is required to remit will most closely reflect the. tax due on moneys actually received on sales of personal property. The method employed by the bureau and approved by the commission, by which it is assumed that the first cash received by a vendor on a credit sale is for the entire sales tax due on the sale, would have quite the contrary result and, by reason of the fact that the receipts under consideration are by their nature not fully collectible, would inevitably produce a liability for sales taxes which would deviate from the statutory sales tax rate. Thus, in the hypothetical instance previously referred to, if $5 of the single payment of $20 on the $100 sale be attributed first to the 5% tax applicable to the $100, the effective tax rate on the portion of the purchase price actually received will be 3310%. If instead of $20 the buyer is able to pay only $5, then a sales tax will be collected although no part of the purchase price of the sale is ever received by the vendor. If nothing is paid by the buyer, however, no sales tax is due on the transaction at all. In either of the latter two instances the vendor receives nothing in payment for the item sold, yet in the first instance the sales tax on the full amount of the sale is deemed to be due and owing from the vendor whereas in the second no sales tax is owed at all.

The pro rata method of sales tax liability computation employed by petitioner (and more recently by the Tax Commission itself) — by which through deduction from taxable sales of uncollectible account balances the taxes remitted by the vendor reflect the sales tax imposed on payments actually received — conforms more nearly to the apparent intent of regulation 525.5 (a) as it implemented subdivisions (d) or (e) of section 1132 of the Tax Law. Indeed, even before the enactment of the statute and the promulgation of the regulation it had been the uniform practice of the City of New York, in administering its sales tax under a regulation virtually identical to regulation 525.5 (a) (Reg Art 41, CCH New York Tax Reports, pars 163-214 [Transfer Binder]), to permit petitioner to pay tax on its receipts on a pro rata basis, deducting as bad debts a proportionate share of accounts on which full payment was not received. Enactment of the statutory provision and adoption of the Tax Commission’s regulation in face of that current practical application of the language there employed lends support to their interpretation in similar fashion (see Matter of Lockport Union-Sun & Journal v Preisch, 7 AD2d 502, 507-508, revd 8 NY2d 54). Further support may be found in the fact that not until more than three years after the promulgation of regulation 525.5 (a), during which time petitioner filed quarterly returns, did the Sales Tax Bureau inform it of the bureau’s method of calculating sales tax due on accounts written off as bad debts.

For all these reasons, we agree with the conclusion of the Appellate Division that the interpretation of regulation 525.5 (a) as applied to petitioner for the period in question is irrational and unreasonable. In reaching this determination we do not reject the view expressed by the dissenting Justice that it was within the discretion of the Tax Commission whether to provide for any credit or refund resulting from uncollectible credit transactions. Having elected to do so by the adoption of the regulation in question, however, it was not free to give that regulation an unreasonable interpretation.

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

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

Judgment affirmed.

      . References to "sales tax” include both sales and use taxes.

      . The Sales Tax Bureau agreed that the volume of petitioner’s charge accounts— which increased from approximately 750,000 to approximately 1,150,000 during the audit period — "would make it impracticably costly to make a separate bad debt calculation on each account based on a determination of the relation to the sales tax of the proportion of the sales price that was collected on each individual sale”.

      . When section 1132 of the Tax Law was enacted by the adoption of section 1 of chapter 93 of the Laws of 1965 this provision appeared in subdivision (d) of section 1132. In 1966 it became a part of subdivision (e). (L 1966, ch 962.)

      . Although the regulation, read literally, appears to contemplate a claim for refund or credit of the tax paid on a sale that proves to be uncollectible, no challenge has been made by the State Tax Bureau to petitioner’s procedure of deducting uncollectible receipts from taxable receipts on a subsequent return rather than claiming a credit for the tax previously paid on such receipts.

      . Subsequent to the period here in question, on November 11, 1974 the State Tax Commission adopted the pro rata method of computation by promulgation of regulation 525.5 (c) (3), effective December 1, 1974 (20 NYCRR 525.5 [c] [3]).


author: Jasen, J. Jones, J. Fuchsberg, J.

text:
    In the Matter of the Appointment of a Guardian for Jacqueline F. (Anonymous), an Infant. Maria F. (Anonymous) et al., Respondents; Philip C. Segal, Appellant.
    Argued March 20, 1979;
    decided May 8, 1979

      POINTS OF COUNSEL

      Elizabeth L. Koob and Lloyd B. Silverman for appellant.
    The information sought by petitioners-respondents is privileged and cannot be disclosed. (People ex rel. Vogelstein v Warden of County Jail of County of N. Y., 150 Misc 714, 242 App Div 611; Matter of Kaplan [Blumenfeld], 8 NY2d 214; Hyman v Corgil Realty Co., 164 App Div 140; Matter of Trainor, 146 App Div 117; Brooklyn Sav. Bank v Park Slope Realty Corp., 146 Misc 4; Levy v Coy, Hunt & Co., 64 Misc 39; Neugass v Terminal Cab Corp., 139 Misc 699; Matter of Stolar, 397 F Supp 520; People v Belge, 83 Misc 2d 186, 50 AD2d 1088, 41 NY2d 60; Banco Frances e Brasileiro S. A. v Doe, 36 NY2d 592, 423 US 867.)

      M. Madeline Welch for respondents.
    The Surrogate’s Court correctly determined that the interest of the child and of the courts in the proper custody of children outweighs the interest of confidentiality in the communication of the former guardian’s whereabouts, and the court correctly directed the attorney to disclose all information concerning the whereabouts of his client and the child. (Bloodgood v Lynch, 293 NY 308; Baumann v Steingester, 213 NY 328; People ex rel. Vogelstein v Warden of County Jail of County of N. Y., 150 Misc 714; Falkenhainer v Falkenhainer, 198 Misc 29; People v Lynch, 23 NY2d 262; People v Belge, 83 Misc 2d 186, 50 AD2d 1088, 41 NY2d 60; Markevich v Royal Ins. Co., 162 App Div 640; Richards v Richards, 64 Misc 285; O’Connor v O’Connor, 62 Misc 53; Neugass v Terminal Cab Corp., 139 Misc 699.)
   OPINION OF THE COURT

Jasen, J.

On this appeal we direct our attention to the circumstances under which an attorney may be compelled on pain of contempt to disclose the address of his client notwithstanding a claim that such information was the subject of a privileged communication.

The tangled factual web which clothes this issue removing it from the abstract is drawn from a lengthy and heated proceeding in which respondents, the natural parents of Jacqueline F., have since 1974 unsuccessfully sought to obtain physical custody of their child. At the root of respondents’ struggle lies their voluntary placement of Jacqueline with her paternal aunt shortly after her birth in 1971 because of an illness suffered by the child’s mother. Upon the latter’s recovery, respondents sought the return of their child, but were denied this request by Jacqueline’s aunt. Thwarted in their efforts to obtain a voluntary return of Jacqueline, respondents commenced a proceeding in Family Court in 1975 for a writ of habeas corpus. Unbeknownst to respondents, however, the child’s aunt had obtained letters of guardianship over the child from the Surrogate’s Court. On the basis of these letters, appellant, an attorney representing the aunt, successfully moved to dismiss the petition on the ground that the Surrogate’s Court had exclusive jurisdiction over the matter.

Thereafter, respondents commenced a proceeding in the Surrogate’s Court to revoke the letters of guardianship. Although respondents’ first application was denied, the letters of guardianship were revoked on July 1, 1977, and Jacqueline’s aunt directed to deliver custody of the child to respondents. However, the order of the Surrogate’s Court was stayed by the Appellate Division pending an appeal to that court. On July 19, while the stay remained in effect, Jacqueline’s aunt disconnected her telephone, vacated her home and departed with the child to Puerto Rico, leaving no forwarding address. Upon respondents’ discovery of this development in the course of attempting to exercise court-ordered visitation rights, they moved to vacate the stay. This motion was denied when appellant, appearing for the child’s aunt, maintained that the latter had gone to Puerto Rico only for a vacation.

On November 25, 1977, the Appellate Division (59 AD2d 1064) unanimously affirmed the order of the Surrogate, resulting in the expiration of the stay granted pending appeal. A motion for leave to appeal to this court was denied on December 19. On the same day respondents commenced the instant proceeding in the Surrogate’s Court by order to show cause to hold Jacqueline’s aunt in contempt and to compel appellant to disclose her whereabouts. Although the court declined to hold the child’s aunt in contempt finding service of process improper, it did order appellant to disclose his client’s whereabouts. On appeal taken by appellant, the Appellate Division unanimously affirmed. We granted leave to appeal and a stay pending our determination. There should be an affirmance.

Since the reign of Elizabeth I, the law has as a matter of policy encouraged full disclosure between attorney and client. (See, generally, 8 Wigmore, Evidence [McNaughton rev, 1961], § 2290 [hereinafter Wigmore]; Richardson, Evidence [10th ed], § 410.) It has long been thought that persons in need of professional advice should not approach an attorney and disclose their problems in a manner tailored by a "fear that such facts will be made public to their disgrace or detriment by their attorney.” (Hurlburt v Hurlburt, 128 NY 420, 424.) Although fostered with an eye toward effectuation of a more orderly administration of justice through frank revelation of pertinent information (see People ex rel. Vogelstein v Warden of County Jail of County of N. Y., 150 Misc 714, 717, affd 242 App Div 611), the attorney-client privilege (CPLR 4503), like all privileges, operates as an exception to the general requirement that all persons give testimony upon facts within their personal knowledge inquired of in a court of law. (See Matter of Horowitz, 482 F2d 72, 81, cert den 414 US 867, reh den 414 US 1052; 8 Wigmore, § 2285.) As such an exception, and notwithstanding its desirable purpose, the attorney-client privilege constitutes an "obstacle” to the truth-finding process, the invocation of which should be cautiously observed to ensure that its application is consistent with its purpose. (See Matter of Field, 408 F Supp 1169, 1173; Matter of Stolar, 397 F Supp 520, 524; 5 Weinstein-Korn-Miller, NY Civ Prac, par 4503.19, p 45-148; 8 Wigmore, § 2291, at p 554.)

Looked at in this light, the question posed for resolution on this appeal is whether under the present circumstances the address of appellant’s client should be viewed as falling within the protective cloak of the attorney-client privilege. Only those communications made in confidence to an attorney for the purpose of seeking professional advice are afforded the stature of privileged communications. For this reason, it has been generally stated that inasmuch as a client’s identity is not relevant to advice proffered by an attorney, such communication is not privileged. (See Matter of Kaplan [Blumenfeld], 8 NY2d 214, 218; People ex rel. Vogelstein v Warden, 150 Misc, at p 719, supra; Fisch, New York Evidence, § 521; Disclosure of Name, Identity, Address, Occupation or Business of Client as Violation of Attorney-Client Privilege, Ann., 16 ALR3d 1047, 1051.) Justification for the same result has also been predicated upon the theory that the identity of a client must be disclosed to ensure that there exists an attorney-client relationship during the course of which privileged communications may be made. (See People ex rel. Vogelstein v Warden, 150 Misc, at p 718, supra.)

In discussing whether the attorney-client privilege insulates a client’s identity from disclosure, we have stated on a previous occasion that notwithstanding opinion to the contrary the rule in New York is not so broad as to state categorically that the privilege never attaches to a client’s identity. (Matter of Kaplan [Blumenfeld], 8 NY2d, at p 218, supra.) We recognized as the basic principle only that inasmuch as every litigant has a right to know his opponent, a client’s identity must be disclosed where the question of identity arises during the course of litigation. (Id., at p 219; see, e.g., 99 Plaintiffs v Vanderbilt, 1 Abb Prac 193.) Thus, absent other circumstances, an attorney cannot be compelled to reveal a client’s identity where the latter is not a party to a pending litigation. (See, e.g., Matter of Shawmut Min. Co., 94 App Div 156; Neugass v Terminal Cab Corp., 139 Misc 699.) Of course, notwithstanding the absence of a pending litigation to which an attorney’s client is a party, disclosure may also be compelled where an "attorney’s assertion of the privilege is a cover for co-operation in wrongdoing.” (Matter of Kaplan [Blumenfeld], 8 NY2d, at p 219, supra; compare id. with People ex rel. Vogelstein v Warden, 150 Misc 714, supra; see, also, Banco Frances e Brasileiro S. A. v Doe, 36 NY2d 592, cert den 423 US 867.)

In a similar vein, any party may during the course of pending litigation serve a demand upon another party to set forth that party’s address. (CPLR 3118.) Prior to the advent of the statutory authority for this relief, the common law similarly provided that an attorney could be ordered to disclose his or her client’s address during the pendency of an action to which the client was a party. (Markevich v Royal Ins. Co., 162 App Div 640; Richards v Richards, 64 Misc 285, affd 143 App Div 906; O’Connor v O’Connor, 62 Misc 53.) However, once the litigation had been terminated, a judgment rendered and the appellate process exhausted, an attorney’s lips were considered forever sealed. As was stated in Matter of Trainor (146 App Div 117, 120), "wherever the court has directed an attorney to disclose the address of his client it has been in the very action brought by his client during its pendency, while the relation of attorney and client still existed, and because of facts relating to that action which rendered the disclosure necessary, in the interest of justice, to protect the rights of the adverse party to the action. Furthermore, when the relation of attorney and client has ceased, the seal of confidence imposed by the original relation continues, and the attorney cannot then be compelled to disclose his late client’s address, even it be to enable the defendant to pursue him aggressively by new proceedings founded on the judgment.” (See Hyman v Corgil Realty Co., 164 App Div 140; Levy v Coy, Hunt & Co., 64 Misc 39; Walton v Fairchild, 4 NYS 552.)

In the present case, the underlying proceeding during which appellant represented Jacqueline’s aunt terminated on December 19, 1977, when this court denied appellant’s client leave to appeal from the order of the Appellate Division affirming the Surrogate’s revocation of letters of guardianship. Although respondents were aware of the departure of appellant’s client to Puerto Rico prior to the decision of the Appellate Division, at no time did they move during the pendency of the appeal to compel disclosure of her new address. Inasmuch as respondents did not take advantage of this statutory avenue for disclosure of the desired information, we must decide whether an attorney may be compelled to disclose his client’s address in a subsequent, collateral proceeding by determining whether, under the instant facts, disclosure of this information would be inconsistent with the purpose of appellant’s representation. (Banco Brasileiro v Doe, 36 NY2d 592, 599, supra.)

In our view, the fact that respondents could have obtained the address of appellant’s client during the pendency of the underlying proceeding does not ipso facto mean that appellant may at this juncture be compelled to disclose this information. As indicated previously, the case law upon which CPLR 3118 would appear to be based did not hold that a client’s address is never privileged inasmuch as it is not evidentiary matter but, to the contrary, that although such information is privileged it must be disclosed in the course of a pending action where disclosure is necessary for the proper administration of justice. Similarly, we have only recently cautioned that a client’s identity, also nonevidentiary information, may be privileged where disclosure might be inappropriate because inconsistent with the trust and duty assumed by an attorney. (Id.) Thus, where there exists a lawful purpose for confidential communication between attorney and client (see, e.g., Matter of Kaplan [Blumenfeld], 8 NY2d 214, supra), even the client’s identity may be privileged. For this reason, we do not find CPLR 3118, authorizing a party’s demand of another party’s address during the pendency of an action, dispositive of the question before us.

In the determination whether a communication by a client to an attorney should be afforded the cloak of. privilege, " 'much ought to depend on the circumstances of each case’ (Matter of Kaplan [Blumenfeld], 8 NY2d 214, 219, supra, quoting 8 Wigmore, Evidence [5th ed], § 2313, p 609.) Nowhere is this principle better demonstrated than in the present case, involving the welfare of a young child caught in an intrafamilial legal battle in which the victor stands to gain an uncommon reward — custody of a child. The ordeal suffered by a child during a custody proceeding is unfortunate but often necessary. It is, however, quite another matter to put a child through such an ordeal only to permit an unsuccessful litigant to frustrate the court’s judgment rendered in the best interests of the child. (Cf. Martin v Martin, 45 NY2d 739; Matter of Nehra v Uhlar, 43 NY2d 242; Entwistle v Entwistle, 61 AD2d 380.) Given the vital interest of the State as parens patriae, deliberate attempts to avoid a court mandate concerning custody of a child cannot be permitted where, as in this case, a potential vehicle for the enforcement of the court’s judgment lies at hand. (See Falkenhainer v Falkenhainer, 198 Misc 29; cf. Tierney v Flower, 32 AD2d 392; Burton v Darnley, 21 LTR [ns] 292, 8 Equity Cases [LR 1869], 577; Ramsbotham v Senior, 21 LTR [ns] 293, 8 Equity Cases [LR 1869], 575.) Where a calculated intent to frustrate a court mandate exists on the part of a client under the circumstances of this case, it matters little whether his or her attorney acted for a legitimate purpose, inasmuch as a finding of a "conspiracy” is not necessary to defeat the privilege. (See Clark v United States, 289 US 1, 15; Richardson, Evidence [10th ed], § 417.)

Of course to be distinguished from the present case are those situations in which a communication by a client to an attorney is made with the expectation that this information will be kept confidential for a legitimate purpose. For example, occasions in domestic relations matters certainly exist in which a client may legitimately fear reprisals by his or her spouse and, therefore, request of an attorney that an address remain confidential. (See Taylor v Taylor, 45 Ill App 3d 352; Waldmann v Waldmann, 48 Ohio St 2d 176; cf. Matter of Kaplan [Blumenfeld], 8 NY2d 214, supra.) Unlike justification provided by a fear of reprisals, appellant’s client would appear to have kept secret her address for one purpose only: to thwart the mandate of the court’s judgment awarding respondents custody of Jacqueline. (Cf. Richards v Richards, 64 Misc 285, affd 143 App Div 906, supra; Dike v Dike, 75 Wn 2d 1; Jafarian-Kerman v Jafarian-Kerman, 424 SW2d 333 [Mo].) Appellant’s client cannot have her cake and eat it too by taking advantage of the appellate process in the hope of a reversal while at the same time remaining in hiding with the expectation that should she lose her appeal she can preclude enforcement of the mandate of the court. Under these circumstances the attorney-client privilege, which exists to foster "lawful and honest purposes” (Coveney v Tannahill, 1 Hill 33, 36) must yield to the best interests of the child. (Cf. People ex rel. Chitty v Fitzgerald, 40 Misc 2d 966.)

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

Jones, J.

(concurring). I agree that there should be an affirmance. Although I concur in the result, I would rely on an analysis different from that of the courts below. In sum, in my view neither the evidentiary privilege against disclosure of confidential communications between client and attorney nor the ethical injunction against such revelations has any application in this case. The issue here falls into a different category of legal reference.

A uniform line of cases has recognized the right of the courts in pending litigation to direct an attorney representing one of the parties to that litigation to reveal his client’s address. (E.g., Markevich v Royal Ins. Co., 162 App Div 640, 641 ["The professional privilege of the attorney cannot avail against giving the address of his client”]; Matter of Trainor, 146 App Div 117, 119 ["the court has the right during the pendency of the action to direct the plaintiff’s attorney to disclose the client’s address, while the relation of attorney and client actually exists”]; Richards v Richards, 64 Misc 285; Post v Scheider, 13 NYS 396; Corbett v De Comeau, 13 Jones & Sp 637; 99 Plaintiffs v Vanderbilt, 4 Duer 632.)

The principle behind the holdings in these cases is now reflected in the provisions of the Civil Practice Law and Rules. CPLR 3118 provides in pertinent part: "A party may serve on any party a written notice demanding a verified statement setting forth the post office address and residence of the party * * * The demand shall be complied with within ten days of its service.” In the event of failure to respond to such a demand, application may be made to the court to compel disclosure (CPLR 3124). Thereafter sanctions for refusal to obey the court’s order are directed against the party (CPLR 3126). In this case, as noted at the Appellate Division, there is also an explicit provision of the Surrogate’s Court Procedure Act which requires a fiduciary, here the guardian, to keep the court informed of changes of address (SCPA 708, subd 1).

The determinative consideration is the obligation of any party to a litigation, for the benefit of the court in which that litigation is pending, as well as for the benefit of the other parties thereto, to keep the court and the parties informed as to his address. This obligation is unrelated to the substantive issues raised in the litigation. As a matter of evident practicality, if the objective of the litigation is to be achieved, the dispute between the parties resolved, and the adjudication of the court enforced, it is necessary to know how the parties may be located.

In my analysis, therefore, inasmuch as a party may be compelled to disclose his address to facilitate the conduct of the litigation in which he is involved, there would appear to be no reason why the representative and agent of that party in the same litigation, with no independent personal interest in the matter, should not likewise be directed to disclose the address if it is known to him. And this is what the cases cited above have recognized.

The obligation to disclose the address exists entirely without regard to the existence of any evidentiary privilege under CPLR 4503 (subd [a]). The data sought — the address of one of the parties to the pending judicial proceeding — does not properly come within the classification of evidence, nor does it have any of the characteristics of evidentiary proof. Thus, it has no relevance to the fact-finding aspect of the litigation; it will not in any way affect the determination on the merits of the controversy between the litigants. In this instance the legal contest with respect to the right to the custody of Jacqueline F. was resolved by the Surrogate’s decree of July 1, 1977, thereafter affirmed at the Appellate Division. The present proceedings are not directed to and have no bearing on the making of that determination. Indeed, it would be the most unusual case in which the address of a party would ever be relevant to the substantive issues in an action. The address is sought here only to facilitate enforcement of the court’s order, a matter related only to the conduct of the final, remedial stage of the pending litigation.

Enforcement of a judgment against the losing party is however an integral, ancillary part of the litigation in chief and steps looking toward enforcement are regarded as a part of the litigation itself. Until enforcement has been effected the litigation has not concluded. Thus, the various procedures and tools provided by CPLR article 52 for collection of money judgments from unsuccessful litigants are not independent actions but are only adjuncts to, and bear the title of, the civil actions whose judgments they seek to effectuate (Siegel, General Commentary on Article 52 and Practice Commentaries to CPLR 5222, 5225, 5226, McKinney’s Cons Laws of NY, Book 7B, pp 45-46, 184, 242, 259). The remedy of punishment for civil contempt arising out of nonperformance of a judgment (CPLR 5104) or of noncompliance with a device in aid of enforcement of a money judgment (CPLR 5251) is obtained by the procedure applicable to a motion in the civil action from which the judgment emerged (Judiciary Law, § 756).

In this circumstance, I must reject the majority’s premise that the underlying custody proceeding in which appellant attorney represented Jacqueline’s aunt "terminated on December 19, 1977, when this court denied appellant’s client leave to appeal from the order of the Appellate Division affirming the Surrogate’s revocation of letters of guardianship” (p 221). The present application, in aid of enforcement of the final determination in the custody proceeding, was initiated by order to show cause in that proceeding. Relief of two sorts was sought: — first by way of punishment for contempt of the party (dismissed for failure to effect sufficient service on her), and second a direction to her attorney to disclose the client’s address. The particular relief can only be regarded as incidental to the custody proceeding. Even if it be taken, as urged by the majority, that the attorney-client privilege does not shelter the client’s communication, while that position would deny the attorney the right to refuse disclosure if he were directed to furnish the information, it provides no authority for the demand that he furnish the address in the first place. This is not an instance where an attorney on the witness stand refused to divulge the address under a claim of privilege and the authority for asking the question was associated with the right to interrogate the witness. In this instance, the direction was made by the court addressed to the attorney, entirely properly, not as some new or independent proceeding but only as an aspect of the court’s responsibility to see to the enforcement of its determination in the custody proceeding. I characterize this as incident to the custody proceeding, which continues as pending litigation until enforcement is accomplished or efforts to that end are abandoned. Indeed, if it not be so characterized, the attempt to punish the client for contempt having been judicially terminated, wherein lies the procedural framework within which the attorney may be directed to disclose?

If, as I think, an attorney may be compelled on this analysis to disclose his client’s address to further the conduct of the judicial proceedings in ordinary litigation, how much more important and necessary it is when the issue in controversy is custody of a child. In such a case, in view of the special role and responsibility of the court to protect and advance the interests of the child, the court probably has a greater interest in enforcing prompt and full obedience to its directives than in any other class of case. (Cf. Tierney v Flower, 32 AD2d 392; Falkenhainer v Falkenhainer, 198 Misc 29.)

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

Fuchsberg, J.

(dissenting). In my view, this is an instance in which what the court conceives to be a hard case is leading it into making bad law. That is especially regrettable because, doing so, its determination necessarily impinges on the very valuable, and what should be unassailable, attorney-client privilege on which in large measure the effectiveness of the right to counsel, and, in turn, a panoply of other deeply rooted political and social rights so heavily depend (People v Garofolo, 46 NY2d 592, 599).

The policy on which rests the guarantee of confidentiality of communication between lawyer and client is very demanding in the protections it affords the client. That its enforcement at times may frustrate the administration of justice will not suffice alone to allow for its breach; indeed, its very purpose may be to keep secure the imparting of information which the State would, if known to it, use to its advantage (People v Belge, 83 Misc 2d 186, affd 50 AD2d 1088, affd 41 NY2d 60).

In serving the rights of the parties to particular proceedings. the privilege also supports the proper functioning of our adversary system as a whole. To that end, a lawyer is enjoined, by mandate of law and of ethics, to hold inviolate the confidences of his client not merely to facilitate the full disclosure of information that may aid in a representation already undertaken, but, by removing any need for a client’s concern that his revelations will be turned against him, to encourage the client to seek legal assistance in the first place (Ethical Consideration, Code of Professional Responsibility, EC 4-1, Judiciary Law, Appendix). Without either condoning resort to self-help or deprecating the importance of securing obedience to court decrees, these overriding concerns forbid sacrificing the privilege to the expediency of the case at hand.

True, as with most rules, there are exceptions. Matters a client does not intend to be confidential, of course, by very definition, are not protected. And, where the confidence is received by the attorney in order to advance a criminal or fraudulent purpose, as when he aids and advises in the perpetration of an unlawful act, it is dehors the privilege (People ex rel. Vogelstein v Warden, 150 Misc 714, affd 242 App Div 611; Flower v Tierney, 32 AD2d 392; Uniform Rules of Evidence, rule 26, subd [2], par [a]). But, since unjustified intrusions into communications with lawyers are to be avoided, there must be proof positive of an unlawful purpose before the confidence can be so invaded (see Clark v United States, 289 US 1, 15; Conveney v Tannahill, 1 Hill 33).

In the present case, it is undisputed that the client’s address was imparted in the course of the professional relationship; indeed, the client expressly enjoined her counsel to secrecy. Also unchallenged is that its sole, proper and even desirable purpose was to keep the lawyer posted as to where he could reach his client. Under these conditions, courts have held the address of a client to be privileged information (Hyman v Corgil Realty Co., 164 App Div 140; Matter of Trainor, 146 App Div 117; Brooklyn Sav. Bank v Park Slope Realty Corp., 146 Misc 4; Matter of Stolar, 397 F Supp 520). Far from giving even the slightest hint that the attorney either assisted in planning the aunt’s departure to a new location or, for that matter, had any advance notice of it at all, the Surrogate went out of his way to commend counsel, who served in the case at the behest of a publicly funded legal services agency, for reflecting credit on himself and the legal profession in the way in which he carried out his professional responsibilities. Further, the record affirmatively shows that the attorney first learned that his client had vacated her Bronx apartment when the biological parents became aware of it and that, until then, he believed she had merely taken the child on a vacation.

Obviously, the ability of an attorney and a client to communicate with one another is an essential adjunct to the exercise of the right to counsel. Without a means by which a client may solicit and receive advice, and an attorney transmit it, the right may be an empty one. It follows that arrangements between the two, if proper in other respects, are not subject to invasion merely because that might, as here, make easier the execution of a judgment of a court, or, by way of further example, even the apprehension of a fugitive from justice,

Not only policy, but practical considerations interdict such an exclusion from the embrace of the privilege. For a different rule would be counterproductive. Bad enough that it would thwart rather than encourage resort to counsel, once it becomes known that the address of a client is not protected by the privilege, it may be expected that, thereafter, when a client wishes an address withheld, it rarely would be found within the ken of the lawyer. The result of such a narrowing of the privilege, therefore, would in all likelihood not be to open up a source of information but to close down the channel of communication by which, for instance, a lawyer may now be able to negotiate the surrender of a client to the authorities.

Cases requiring lawyers to disclose the names of their clients are not analogous. Such decisions in the main are premised on either the principle that every litigant is entitled to know his opponent or the fact that the information is essential to the preliminary determination of the very existence of an attorney-client relationship (see, e.g., 8 Wigmore, Evidence [McNaughton rev, 1961], § 2313; Harriman v Jones, 58 NH 328). Clearly, these arguments have no force here; neither the client’s identity nor the existence of the relationship has ever been in doubt.

Nor does CPLR 3118 permit a breach of the privilege. That section, in existence in its present form only some 15 years, is, purely and simply, a discovery device. In establishing a procedure for obtaining an opposing party’s address, it provides for the making of a demand which, though it would customarily be addressed to the lawyer as the litigation agent for his client, is substantively one made on the client precisely as is a demand for a bill of particulars, a notice to take a deposition, a notice to admit, or the like. The sanction for failure to comply in all these cases is not to force the disclosure of the facts from the attorney but, instead, the usual penalties affecting the client’s position in the litigation itself, such as preclusion or dismissal or stay of proceedings (see, e.g., 99 Plaintiffs v Vanderbilt, 1 Abb Prac 193 [plaintiffs’ action stayed pending compliance with order to produce addresses]; CPLR 3126; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3118.02). So it is not uncommon for some litigants to drop a suit or a defense rather than provide deposition testimony or pleading particulars unexpectedly ordered to be furnished; indeed, the Government itself does so from time to time under similar circumstances to maintain the confidentiality of evidence it would rather not reveal. That does not mean that the attorney for the private party in the one case, or the attorney for the Government in the other, is free, absent waiver by each one’s client, to disclose the information which the client was ready to suffer prejudice to protect.

Nothing in the wording of the statute, in standard New York practice treatises or in the placement of the statute amongst the discovery sections of the Civil Practice Rules casts even the slightest doubt on these observations (see Siegel, New York Practice, § 365; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3118.02; McKinney’s Cons Laws of NY, CPLR, Book 7B, 3118). Language seemingly to the contrary in some of the cases is often found on analysis not to have been the result of a probing of the range of the privilege and is therefore not authoritative (see, e.g., Corbett v De Comeau, 13 Jones & Sp 637; Post v Scheider, 13 NYS 396).

All of which leads me to believe that there was no reason to place the appellant attorney in the draconian dilemma of either violating his trust or being held in contempt. Above all, his client and all clients must know that in seeking the protection of their rights under law, they may freely confide in members of the Bar. Accordingly, I would reverse the order of the Appellate Division and dismiss the petition.

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

Order affirmed.

      . The prior application was denied without prejudice to renewal of the application at a future date when the stability of respondents’ family life could be more clearly demonstrated.

      . "(a) Confidential communication privileged; non-judicial proceedings. Unless the client waives the privilege, an attorney or his employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local governmental agency or by the legislature or any committee or body thereof. Evidence of any such communication obtained by any such person, and evidence resulting therefrom, shall not be disclosed by any state, municipal or local governmental agency or by the legislature or any committee or body thereof. The relationship of an attorney and client shall exist between a professional service corporation organized under article fifteen of the business corporation law to practice as an attorney and counselor-at-law and the clients to whom it renders legal services.”

       As to the availability of this disclosure provision after trial see CPLR 3102 (subd [d]).