text:
    Deitsch Textiles, Inc., Appellant, v New York Property Insurance Underwriting Association et al., Respondents. (Action No. 1.) Monezel Holding Corp., Appellant, v New York Property Insurance Underwriting Association, Respondent. (Action No. 2.)
    Decided July 2, 1984

      APPEARANCES OF COUNSEL

      Robert J. Miller for appellants.

      Arthur N. Brook for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court appealed from and the prior order of the Appellate Division brought up for review should be reversed, the judgments of Supreme Court dated September 14, 1981 and June 10, 1982 should be reinstated, and the matter remitted to the Appellate Division, Second Department, for consideration of the facts. (See CPLR 5613.)

We agree with plaintiffs that the Appellate Division erred in reinstating the defense of fraudulent proof in both actions.

Two actions were brought against defendant insurance companies after a fire destroyed a Brooklyn commercial building: action No. 1 by tenant Deitsch Textiles, Inc. (Deitsch), for the building’s contents; and action No. 2 by owner Monezel Holding Corp. (Monezel) for the structure itself. Both actions were consolidated for trial, at which the affirmative defense of fraudulent exaggeration was dismissed against Deitsch and withdrawn against Monezel. After trial, the jury rendered verdicts of $68,016.18 in favor of Deitsch and $200,000, the stipulated value of the property, in favor of Monezel. In the Deitsch action, the court ordered a new trial as to damages unless defendant stipulated to increase the verdict to $250,000. Defendant refused, and after a second trial, judgment was rendered for Deitsch in the principal sum of $170,000.

The Appellate Division reversed both judgments on the law, reinstated the defense against both plaintiffs, and ordered a new trial. The court determined that factual issues existed with respect to the defense of fraudulent exaggeration in the Deitsch action. Moreover, noting that the principal of both plaintiff corporations was the same individual and deeming the two policies at issue to cover but a single loss, the court held that if the defense were proved as to Deitsch, it would also preclude Monezel from recovering.

The policies at issue contained the standard fraud provision mandated by statute (Insurance Law, § 168, subd 5), which is breached if an insured tenders a fraudulent proof of loss as the basis for a recovery under the policy. (Saks & Co. v Continental Ins. Co., 23 NY2d 161, 165.) Specifically, “ ‘[i]f it appears that a plaintiff has willfully and fraudulently placed in the proofs of loss a statement of property lost which he did not possess, or has placed a false and fraudulent value upon the articles which he did own, he is not entitled to recover anything.’ ” (Id., quoting Domagalski v Springfield Fire & Mar. Ins. Co., 218 App Div 187, 190.)

Turning first to Deitsch, we find that the record is devoid of proof of this defense. At trial, the insurance companies primarily attempted to discredit, as speculative, two inventories taken by plaintiff of the goods damaged after the fire. However, they tendered no proof of intent to defraud — a necessary element to the defense. (See Jonari Mgt. Corp. v St. Paul Fire & Mar. Ins. Co., 58 NY2d 408, 417; Sunbright Fashions v Greater N. Y. Mut. Ins. Co., 34 AD2d 235, affd without opn 28 NY2d 563.) They also contended that Deitsch never offered invoices substantiating loss of certain equipment into evidence at trial. While this alleged failure may be relevant to whether Deitsch offered sufficient proof of damages, it fails to amount to fraudulent conduct such as would vitiate the policies at issue.

We also assign as error the reinstatement of the fraudulent exaggeration defense as to plaintiff Monezel. CPLR 2104 provides that an oral agreement between parties relating to any matter in an action, if made in open court, is binding. (Cf. Klein v Mount Sinai Hosp., 61 NY2d 865.) By stipulation, the parties may shape the facts to be determined at trial and thus circumscribe the relevant issues for the court to the exclusion of disputed matters that otherwise would be available to the parties. (Nishman v De Marco, 62 NY2d 926; T. W. Oil v Consolidated Edison Co., 57 NY2d 574, 579-580.) In the present case, the parties stipulated in open court at the start of the trial that the amount due in the Monezel action would be $200,000 in the event plaintiff recovered on the building. The next day, in direct response to a statement by the court that it would “like to understand the full import of the stipulation”, the insurance company’s attorney conceded that the fourth affirmative defense of fraudulent exaggeration it had alleged in its answer as against Monezel was withdrawn. Thus; it was an abuse of discretion for the Appellate Division to reinstate the defense that, by stipulation, had been withdrawn.

Moreover, we see no logic in defendants’ argument, which the Appellate Division found persuasive, that the defense of fraud, if proved as to tenant Deitsch, should vitiate the entirely separate policy of owner Monezel under the standard fraud provision. Defendants cite no relevant authority to support their argument; principally, they rely on Happy Hank Auction Co. v American Eagle Fire Ins. Co. (286 App Div 505, mod 1 NY2d 534), which held that “ ‘[t]he contract of insurance being entire and indivisible, a cause of avoidance or forfeiture in respect to a part of the property insured affects the whole contract’ ” (286 App Div, at p 508, quoting Fitzgerald v Atlanta Home Ins. Co., 61 App Div 350, 356). This decision, of course, is distinguishable because separate contracts are at issue here, each covering entirely different insurable interests. (See Scarola v Insurance Co. of North Amer., 31 NY2d 411, 413.)

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, the September 14, 1981 and June 10, 1982 judgments of Supreme Court, Kings County, reinstated, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


source: Caselaw Access Project

license: Public Domain

text:
    Melvin R. Cannon, Appellant, v First National Bank of East Islip, Now Known as Bank of Long Island, N. A., Respondent.
    Decided July 2, 1984

      APPEARANCES OF COUNSEL

      Melvin R. Cannon, appellant pro se.

      Leslie Kirsch and John J. Halleron, III, for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. The findings of the Appellate Division more nearly comport with the weight of the evidence than do those of the trial court.

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


text:
    Hotel Prince George Affiliates, Respondent, v Norah Maroulis, Individually and as Executrix of Rose Rabey, Deceased, Appellant, et al., Defendant.
    Argued June 4, 1984;
    decided July 2, 1984

      APPEARANCES OF COUNSEL

      Richard E. Hahn for appellant.

      Samuel Gottlieb for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the case remitted to Supreme Court for entry of an order directing a partnership accounting and, incidental thereto, a determination of the liability, if any, of the estate of Rose Rabey to the partners, and the judgment against Nor ah Maroulis individually vacated and the complaint against her dismissed.

As to recovery if any, with respect to the liability of the estate of Rose Rabey, we agree with the dissenters at the Appellate Division, and for the reasons stated in the dissenting opinion of Justice Samuel J. Silverman, that there must be a partnership accounting prior to the determination of the amount of any such liability.

On oral argument it was conceded that the estate of Rose Rabey was liable to the partnership with reference to the call notice dated May 22,1975. By express provision of the partnership agreement, however, the partnership was dissolved by the death of Rose on July 22, 1975, and the parties have stipulated that the reformation agreement, although dated as of August 18, 1975, was not executed until after November 19, 1975. Accordingly, no partnership was in existence at the time of the call notices issued on August 7 and September 18, 1975, and there was no legal authority for their issuance.

Without regard to whether the appointment of the remaining partners as attorneys-in-fact for a deceased partner survived the death of the deceased partner as a power coupled with an interest, it is unquestioned that each partner, including Rose, bound his or her estate to reform a partnership after the dissolution of the prior partnership in consequence of the death of a partner. While Rose’s estate could not be forced to reform the partnership, if a proper basis were established the estate might be held liable in damages for breach, in November, 1975, of Rose’s agreement to do so (Napoli v Domnitch, 18 AD2d 707, affd 14 NY2d 508).

With respect to the liability of Norah Maroulis individually, we find no predicate in the record for the judgment entered against her. The only provision in the stipulation between the parties in reference to commingling of funds by her is that set forth in paragraph 27 thereof. Contrary to the recital in the majority opinion at the Appellate Division, the stipulation in that paragraph is that Norah commingled moneys to which her mother, Rose, was entitled with moneys of her own “for a period of approximately five years prior to Mrs. Rabey’s death on July 22, 1975”. There is no proof in the stipulation or otherwise of any commingling by Norah, qua executrix, of moneys belonging to her mother’s estate, or of any depletion by her of the assets of her mother’s estate to defeat the claims of the partnership against the estate. Accordingly, there is no legal basis for assertion against Norah individually of liability for the obligations of her mother’s estate.

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

Order reversed, with costs, judgment against Norah Maroulis individually vacated and the complaint against her individually dismissed, and case remitted to Supreme Court, New York County, for entry of an order and further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Timothy Dupree, Appellant, v Lynn Dupree, Respondent.
    Decided July 2, 1984

      APPEARANCES OF COUNSEL

      David R. Garner and Nathan R. Fenno for appellant.

      Katherine Hannan Wears for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for the exercise of its discretion.

The parties were divorced on July 28, 1981, and the husband was required to pay $100 per week in child support pursuant to the terms of a stipulation which was incorporated and merged into the divorce judgment. At the time of the parties’ divorce, the husband was earning approximately $20,000 per year doing road excavation and backfill work. The job took him away from his family in Ogdensburg, New York, but he returned home on weekends to visit them. He voluntarily left that position in September of 1981, a short time after a wage deduction order of $100 per week had been entered against him by the wife for collection of the support obligation. He thereafter took a job closer to the family with a starting salary of around $9,145 per year. After payroll deductions for child support, State and Federal income taxes, Social Security, union dues, State retirement contributions and health insurance, the husband’s net weekly take-home pay was $35.79. As of September, 1982, his annual salary had increased to approximately $10,596.

After dismissing two petitions for a downward modification of the support obligation, Family Court granted a third such petition and reduced the husband’s child support payments to $65 per week. The court found that the husband had left the more lucrative position primarily because of the entry of the wage deduction order. The court also noted that the husband’s motive may have been to be closer to his family and to get a more secure position, though finding that had he worked diligently he could have continued in the road work job. According to the court, the case was complicated by the facts that the husband could not return to his prior position, that he has limited job skills and that he could not continue to pay $100 per week in support out of his current income. The court thus granted the petition for a downward modification and reduced the support obligation to $65 per week.

The Appellate Division reversed, on the law, and dismissed the petition. The court held that a court should not grant a downward modification where a spouse’s own actions or inactions bring about a reversal in that party’s financial condition. The appropriate amount of support payable, according to the Appellate Division, is determined by the spouse’s ability to provide, not the spouse’s current economic situation. The court ruled that the record indicated that the husband had left the higher paying position for other than valid vocational reasons and thus ruled that it was error for Family Court to have granted the petition.

It is true that the cases relied on by the Appellate Division (Matter of Doscher v Doscher, 54 NY2d 655; Hickland v Hickland, 39 NY2d 1, cert den 429 US 941; Kay v Kay, 37 NY2d 632) do support the conclusion that the husband’s leaving the road work job, to the extent it was found primarily to have been motivated by the wage deduction order, would not warrant a reduction of the support obligation. This was not, however, the ground on which Family Court granted the petition. Instead, Family Court relied on the husband’s inability to return to his prior position, his limited vocational skills and his inability to continue to make weekly $100 support payments on his present income. It cannot be said as a matter of law that Family Court erred in exercising its discretion to modify the support obligation on this ground inasmuch as it could be found that the husband was unable to provide support at the original level. All of the cases relied on by the Appellate Division are distinguishable in that they involved spouses whose true incomes were higher than reported, who had the present ability to obtain higher paying employment or to fix their salaries at higher levels, who had other assets available or who had conveyed assets to evade obligations to their families.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of the Claim of Virginia Denzel, Appellant. Merchants Mutual Insurance Company et al., Respondents.
    Decided July 2, 1984

      APPEARANCES OF COUNSEL

      William F. Reynolds for appellant.

      Thomas E. Brydges for Merchants Mutual Insurance Company, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and the decision of the Unemployment Insurance Appeal Board reinstated for the reasons stated in the dissenting memorandum by Justice John T. Casey at the Appellate Division (98 AD2d 931, 932).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Robert La Buda, Appellant, v Brookhaven Memorial Hospital Medical Center et al., Respondents.
    Decided July 2, 1984

      APPEARANCES OF COUNSEL

      Henry M. Grubel for appellant.

      Robert N. Schütz and James C. Brady for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as it pertains to Abraham Cohen, Eric Kane, and Leon Finkelstein, and Cohen, Kane & Finkelstein, should be affirmed, with costs. It was not an abuse of discretion as a matter of law to dismiss the complaint. Plaintiff failed to submit an affidavit of merit in opposition to defendants’ motion for summary judgment {Erwin Pearl, Inc. v Burroughs Corp., 62 NY2d 1031; Smith vLefrak Organization, 60 NY2d 828). It is therefore unnecessary to consider the question of the application of CPLR 2005 (L 1983, ch 318) {Smith v Lefrak Organization, supra).

Finally, we note that no final order has been entered against Brookhaven Memorial Hospital, and the appeal, insofar as it has been taken against this party, must be dismissed (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 20, pp 82-83).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as it pertains to defendants Cohen, Kane and Finkelstein, and the defendant partnership, affirmed, with costs, and appeal as against defendant Brookhaven Memorial Hospital Medical Center dismissed, without costs, in a memorandum.


text:
    In the Matter of the Arbitration between Hector M. Aleman, Respondent, and Empire Mutual Insurance Co., Appellant.
    Decided July 2, 1984

      APPEARANCES OF COUNSEL

      Raymond, J. MacDonnell and Thomas Torto for appellant.

      Jerry V. Weinberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the award of the master arbitrator vacated and the award of the arbitration panel reinstated.

A review of the master arbitrator’s determination indicates that, in modifying the arbitration panel’s award, he engaged in extensive factual review and reached his conclusion based upon an impermissible weighing of the evidence (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207; Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224). There was evidence before the arbitration panel to support its finding that the injured party’s condition was congenital and was not aggravated by the accident. Moreover, there is no indication that the panel disregarded any of the evidence before it. Accordingly, its award cannot be viewed as irrational or unsupported by the evidence in the record.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, award of the master arbitrator vacated and award of the arbitration panel reinstated in a memorandum.


text:
    Janet A. Sammons, Individually and as Administratrix of the Estate of Edwin H. Sammons, Deceased, Appellant, v Robert Freer, Doing Business as Hideaway Camp, Respondent.
    Decided July 2, 1984

      APPEARANCES OF COUNSEL

      James R. McCarl for appellant.

      Eli B. Basch for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (99 AD2d 896; see, also, Stolowitz v Mount Sinai Hosp., 60 NY2d 685).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    The People of the State of New York, Respondent, v Sandy Little, Appellant.
    Decided July 2, 1984

      APPEARANCES OF COUNSEL

      William E. Hellerstein and Robert A. Womack for appellant.

      Elizabeth Holtzman, District Attorney (Sonya S. Korn-blum of counsel), for respondent, precluded.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for reasons stated in the memorandum of the Appellate Division (98 AD2d 752). Issues not preserved for review are not passed on by, this court.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


author: Chief Judge Cooke

text:
    The People of the State of New York, Appellant, v Douglas Hoke, Respondent.
    Argued May 10, 1984;
    decided July 2, 1984

      APPEARANCES OF COUNSEL

      Sol Greenberg, District Attorney (George H. Barber of counsel), for appellant.

      Douglas P. Rutnik, Public Defender (Shawn D. Flaherty of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

Although the Appellate Division order states that reversal of defendant’s conviction was on the law, the opinion reveals that it was in fact based upon an exercise of discretion. After the trial court had denied defendant’s requested alibi charge and, in its place, given a different alibi charge, defendant did not specify why the charge as given was inadequate. Thus, while there was preservation as to the court’s refusal to charge in accordance with defendant’s request, there was no preservation with respect to error in the alibi charge as given. The Appellate Division reversal was not grounded in the failure to charge as requested, but in its conclusion that the trial court’s alibi instructions as given were burden-shifting. Accordingly, its determination rested on an exercise of its interest of justice jurisdiction, and does not satisfy the jurisdictional predicate for review by this court (CPL 450.90, subd 2). (See People v Dercole, 52 NY2d 956.)

Chief Judge Cooke

(dissenting). The majority’s conclusion, that the Appellate Division acted in its discretion, is based upon the invalid assumption that defendant did not preserve his objection to the court’s failure to charge that the People had the burden of disproving the alibi beyond a reasonable doubt. The majority carries the concept of preservation much too far. Therefore, respectfully, I must dissent.

Defendant was prosecuted for attempted robbery and asserted an alibi defense. Prior to the jury charge, defendant requested an instruction on alibi that provided in part: “I further charge you that alibi is not an affirmative defense under the law of New York, but is a defense other than an affirmative defense and, hence, is a defense as to which the People have the burden of disproving beyond a reasonable doubt. In layman’s terms, this means that the defendant has no burden of proving the alibi defense. It is the burden on the prosecution to disprove the alibi defense beyond a reasonable doubt.”

The trial judge expressly denied defendant’s request, stating, “I have examined it. I refuse to so charge.” The judge did not state that he was planning to give a different alibi charge or that he would give a charge which substantially comported with defendant’s request. The judge did, however, charge on alibi: “The defendant claims he was not present at the scene of the crime and has offered evidence to show that he was elsewhere. In the law, this is known as an alibi defense. As I have previously charged you, the People have the burden of establishing the guilt of the defendant beyond a reasonable doubt. The defendant is not required to prove his innocence. If the evidence as to alibi, if believed by you, the jury, when taken into consideration with all of the other evidence, raises reasonable doubt as to the defendant’s guilt, he is entitled to an acquittal.”

After the charge, when asked by the trial judge if there were any requests, defense counsel replied, “Yes, Your Honor. I have already mentioned them previously.” Counsel did not offer to explain why the judge’s charge was erroneous or how it differed from the requested charge.

The Appellate Division reversed defendant’s conviction on the ground that the alibi charge improperly shifted the burden of proof to defendant. It reached its decision “on the law,” without any discussion of the preservation issue.

The Legislature has already prescribed what is necessary for a party to preserve an error for appellate review. CPL 470.05 (subd 2) provides in part: “a question of law with respect to a ruling or instruction * * * is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction * * * Such protest need not be in the form of an ‘exception’ but is sufficient if the party made his position with respect to the ruling or instruction known to the court. In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.”

Here, defendant requested an alibi charge which properly stated the lav/ (see People v Victor, 62 NY2d 374) in writing, prior to the jury charge. This request was expressly denied. Under these circumstances, the purported error is fully preserved for review by the terms of CPL 470.05 (subd 2). The statute does not require the party “without success” to proffer any further explanation why the refusal to charge as requested is incorrect or how the charge, as given, fails to comport with the law as espoused in a defendant’s request.

Indeed, this court has not, until today, required such an explanation in order to preserve an objection to a jury charge in situations where the request to charge is denied (compare People v Le Mieux, 51 NY2d 981, 982-983, with People v Whalen, 59 NY2d 273, 279-280). In Le Mieux, defendant made a timely written request that the trial court charge the jury on an aspect of corroboration. The judge did not grant the request or give any other similar charge. This court stated, “[b]y this submission, the written form of which in this case lessened the possibility of judicial oversight, defendant must be ‘deemed to have thereby protested the court’s ultimate * * * failure to * * * instruct’ sufficiently ‘to raise a question of law * * * regardless of whether any actual protest thereto was registered’ (CPL 470.05). Therefore, no additional or literal ‘exception’ was required to preserve the point” (People v Le Mieux, 51 NY2d 981, 982, supra; see People v Victor, 62 NY2d 374, supra [defendant, whose request to charge was denied, made no further objection after the jury charge and issue was preserved]). Nor did this court view defendant’s failure to make a further specific objection after the charge, other than the blanket renewal of all his prior requests, as a waiver of his “position already preserved with respect to a request on which the verdict could very well have turned” (People v Le Mieux, 51 NY2d 981, 983, supra). Indeed, even the dissent agreed that “the request was by itself sufficient to raise an issue that is cognizable in our courts under the limited review powers conferred upon us by CPL 470.35 (subd 1), and no further exception or renewal of the request was necessary” {id., at p 983 [Gabrielli, J., dissenting]).

This preservation rule yields a different result when the trial judge informs a defendant that a request will be granted, but then delivers an altered charge that is not to defendant’s satisfaction. For example, in People v Whalen (59 NY2d 273, supra), the trial court granted the defendant’s request but then failed to charge in the precise terms desired. After the charge, defendant asked for the original language without, however, explaining how the judge had deviated from it. This court first reviewed the rule under the CPL and cited the holding in Le Mieux with approval {id., at p 280). It held that, in the “different circumstances” present, a specific objection as to why the given charge was inadequate was required to provide an opportunity for the trial judge to correct the obvious discrepancy between the actual charge and the defendant’s granted request. Thus, in that situation, the failure to point out the error was fairly considered a waiver of any objection to the instruction (see People v Whalen, 59 NY2d 273, 280, supra).

The rule that can be culled from Le Mieux and Whalen, is that if the individual circumstances indicate that defendant’s request has been denied, there is no need to make any further objection or explanation to avoid waiving the error but if the judge has effectively granted the request, any failure to adhere to that ruling must be brought to the judge’s attention either before or after the charge.

The situation here is closer to that in Le Mieux, where the judge refused the request to charge, than in Whalen, where the judge inadvertently deviated from the language of the granted request. Once the request is denied, no purpose will be served by any further objection to the actual charge, which is expected to differ. The battle over the correct jury charge has been fought and lost.

This holds true whether a judge rejects a defendant’s request and then delivers no charge on the subject, as in Le Mieux, or proceeds to instruct on the topic in terms different from those requested, as here. In either event, the understanding between a judge and a defendant has been made clear by the judge’s denial of the defendant’s request. Where, as here, the charge given related to the exact same legal point covered in defendant’s request for an alibi charge, there is no reason to distinguish between an objection to the judge’s refusal to charge as requested and an objection to the charge as given. It must be remembered that a jury charge is an instruction on the relevant legal principles. A request to charge is inherently a party’s statement of the proper controlling law. Thus, a judge is on notice that denial of a requested instruction or any substantial deviation from the language of that request is a rejection of defendant’s view of the law and will be viewed by defendant as error. Accordingly, the defendant is under no further burden to bring the matter to the court’s attention for corrective action (CPL 470.05, subd 2) and defendant here has preserved his objection to both the failure to charge as requested and the erroneous charge that was given on the subject of his request. This result would change, of course, if the charge as given included statements beyond the scope of a defendant’s request. In that situation, the judge would0never have been put on notice that defendant viewed the statement as error and, therefore, an objection would be required.

The approach set forth herein is consistent with that taken in Whalen. A judge who grants a request has acceded to the sponsoring party’s statement of the pertinent legal principles. Thus, a deviation from this language in the actual charge cannot be assumed to be a decision that the party’s request is erroneous. Indeed, the lapse will be deemed inadvertent and the party is compelled to point out the discrepancy. This will allow the court either to make the correction itself or to reject the party’s request on the record.

Under this view, defendant successfully preserved his objection to the jury charge and a question of law is properly presented before this court. The charge given failed to state, as defendant properly requested, that the People had the burden of disproving the alibi beyond a reasonable doubt. Also, the language “if believed by you, the jury,” implied that defendant bore some burden of proving the alibi. These improperly shifted of the burden of proof requiring a reversal of the conviction and a new trial (see People v Victor, 62 NY2d 374, supra).

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

Judges Jasen, Jones, Wachtler and Kaye concur; Chief Judge Cooke dissents and votes to affirm in an opinion in which Judges Meyer and Simons concur.

Appeal dismissed in a memorandum.

       Far from carrying “the concept of preservation much too far” (dissent, at p 1024), the requirement of specific objection in these circumstances serves a salutary purpose. Defense counsel, having heard the charge as given and knowing best how it fails to satisfy his request, by objection at that point gives the court the opportunity to correct any error.


text:
    Leota M. Abbott, Appellant, v Meryl A. Herring, Respondent.
    Decided July 2, 1984

      APPEARANCES OF COUNSEL

      Ellen Leary Coccoma for appellant.

      Frank W. Getman and Clifton M. Tamsett, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

The factual determinations made by the Appellate Division more nearly comport with the weight of the evidence, and we find no error in that court’s application of the pertinent rules of law. Plaintiff has failed to show by clear and convincing evidence her entitlement to an easement by implication or prescription.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    Erwin Pearl, Inc., Appellant, v Burroughs Corporation, Respondent, et al., Defendant.
    Decided July 2, 1984

      APPEARANCES OF COUNSEL

      Milton Garwitz and Daniel Markewich for appellant.

      Joseph P. Zammit for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (98 AD2d 619). We would add only that plaintiff’s affidavit on its motion to reargue failed to establish the merit of its case (see Canter v Mulnick, 60 NY2d 689).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Harriet Chamberlain et al., Respondents, v Modular Publications, Inc., Appellant.
    Submitted June 4, 1984;
    decided July 2, 1984
   Motion for reargument of motion for leave to appeal granted and, upon reargument, motion for leave to appeal denied. Motion for a stay dismissed as academic. [See 62 NY2d 801.]


author: Jasen, J.

text:
    The People of the State of New York, Appellant, v James Tunstall, Respondent.
    Argued June 7, 1984;
    decided July 5, 1984

      POINTS OF COUNSEL

      William L. Murphy, District Attorney {Karen F. McGee of counsel), for appellant.
    The conclusion of the court below that Ms. Aponte’s testimony included hypnotically induced statements, thereby necessitating a new trial, is unsupported by the record and constitutes plain error. (People v Hughes, 59 NY2d 523.)

      Julia Pamela Heit for respondent.
    I. Respondent was deprived of his due process right to a fair trial when the court, over objection, permitted the testimony of Yvette Aponte who had been previously hypnotized at the suggestion of the prosecutor for the sole purpose of preparing her for the ensuing trial. (People v Hughes, 59 NY2d 523.) II. Respondent was deprived of his due process right to a fair trial when the court refused to allow respondent or his codefendant to wear the ski masks before the jury, especially when the prosecutor had himself worn the mask for the jury’s benefit during the People’s direct case. (People v Crimmins, 36 NY2d 230; People v Fein, 18 NY2d 162; People v Mirenda, 23 NY2d 439; People v Mantesta, 27 AD2d 748.) III. The introduction into evidence of the videotapes of the lineup, in the prosecutor’s direct case, constituted unfair bolstering in contravention of CPL 60.20 and case law. (People v Cioffi, 1 NY2d 70; People v Trowbridge, 305 NY 471; People v Caserta, 19 NY2d 18; People v Griffin, 29 NY2d 91; People v Johnson, 32 NY2d 814; People v Burton, 46 AD2d 774; People v Willis, 49 AD2d 558; People v Reeves, 50 AD2d 746; People v Osgood, 89 AD2d 76.)
   OPINION OF THE COURT

Jasen, J.

The critical issue presented is whether a pretrial hearing must be held to determine whether a defendant’s ability to cross-examine a prosecution witness has been unduly impaired as a result of that witness’s having been hypnotized in an effort to learn additional details of the crime even though the hypnotic process did not lead to the discovery of any significant new facts and the witness’s testimony at trial mirrored statements which she had made prior to being hypnotized.

In the early morning hours of May 4,1979, a rape victim and her boyfriend were talking in his car while parked in front of her home. The couple noticed two men walk by the car once and then again from the opposite direction. Shortly thereafter, the two men returned, wearing ski masks and brandishing a pistol and a shotgun or a rifle. The man with the pistol, later identified by the victim and her boyfriend as defendant James Tunstall, crouched by the curb and aimed the weapon at the victim’s head, while the other man, later identified as Robert Chamberlin, trained his gun on the boyfriend. The men then forced their way into the car, ordered the boyfriend into the back seat and drove away. After the boyfriend was robbed of $40, he was ordered out of the car. The two men then drove the victim to a nearby park where they raped and sodomized her. Afterwards, she was allowed to leave the car and the men drove away.

At approximately 10:30 a.m. on the same day, the victim reported the crime to the police and described the perpetrators and the details of the attack. The victim and her boyfriend returned to the police station on May 26,1979 to view photographs of previous offenders. The boyfriend examined the arrays alone and positively identified both defendant and Chamberlin as the men who accosted him. The victim then independently identified the same two individuals as her attackers. Both men were subsequently arrested and charged with rape, sodomy, robbery and grand larceny. The victim and the boyfriend independently identified Chamberlin and defendant once again after viewing them in a series of lineups conducted on June 4, 1979.

On December 7, 1979, the victim again related the events of May 4 in detail to an Assistant District Attorney. This statement was videotaped. Immediately thereafter, she was hypnotized in an effort to refresh her recollection as to any details of the crimes which she might have forgotten. The only further details elicited, however, were that defendant was wearing an army jacket and Chamberlin was wearing a plaid flannel shirt. The victim never testified to those details at trial and the People made no attempt to introduce them by other means.

The trial began on May 28, 1980, at which time the prosecutor turned over certain prior statements of the victim (People v Rosario, 9 NY2d 286) to the defense, including the June 7, 1979 videotape interview of the victim and the subsequent hypnosis session. The following morning, defense counsel moved to suppress “any in-court identification of my client, Mr. Tunstall by [the victim]” on the ground that “the only purpose the District Attorney had in subjecting [the victim] to the procedure of hypnosis was to bolster her testimony.” Defendant also requested that a hearing be held to examine “the methods used in the conduction of this initial interview and the interview by the psychiatrist under hypnosis.” Defense counsel further requested that the videotape be transcribed so that he could use it at trial to cross-examine the victim. The prosecutor opposed all of defendant’s motions, basically because he did not intend to use at trial any statements which the victim made while under hypnosis. He did, however, agree to make the videotape available to defense counsel in the event he wished to use it at trial. The court denied defendant’s request for a pretrial hearing and also denied the motion to suppress any in-court identification made by the victim of defendant. The court, however, granted defendant’s request that the videotape of the hypnotic session not be introduced during the trial. In doing so, the court ruled that statements made under hypnosis are inherently unreliable and, therefore, inadmissible. At a later point in the trial, the court offered defendant the opportunity to use the videotape to impeach the victim’s direct testimony.

Defendant was convicted of five of the six counts of the indictment, the first degree robbery charge having been dismissed by the court at the end of the trial. The Appellate Division reversed and ordered a new trial to be preceded by a pretrial hearing “to determine ‘the extent of the witness’s prehypnotic recollection * * * and whether the hypnosis was so impermissibly suggestive as to require exclusion of in-court testimony with respect to such prehypnotic recollections’ ”.

While we agree with the Appellate Division that a pretrial hearing should have been held to determine what effect, if any, hypnosis had on defendant’s ability to cross-examine the victim, we do not believe at this time that a new trial must be ordered. The order of the Appellate Division should, therefore, be modified accordingly.

The problems associated with allowing a witness who has previously been hypnotized to testify against a defendant at trial were recently given thorough consideration by this court. (See People v Hughes, 59 NY2d 523.) In that case, we recognized that a witness may be affected in three primary respects as a result of having been hypnotized: (1) he may become susceptible to suggestions given intentionally or unintentionally by the hypnotist or others present during the session; (2) the subject may confabulate or intentionally fabricate incidents in order to fill memory gaps or to please those conducting the hypnotic session; (3) a witness who recalls an event under hypnosis which he had previously recollected may experience an artificially enhanced confidence in his subsequent recollection of that incident, thereby unfairly impairing defendant’s ability to cross-examine that witness. (People v Hughes, supra, at pp 534-535, 546.)

All three of these problems were at the forefront of our decision in Hughes. In that case, we stated that generally the extent of the witness’s prehypnotic recollections establishes the boundaries of admissible testimony (People v Hughes, supra, at p 546) and affirmed the order of the Appellate Division which granted defendant a new trial because the court denied the defendant’s motion to suppress the evidence obtained during the hypnotic session, and such evidence was introduced at trial.

By sharp contrast, the defendant in the appeal before us does not vigorously argue that the victim’s testimony at trial contained additional inaccurate facts recalled during or after hypnosis as a result of her allegedly increased susceptibility to external suggestions while under hypnosis or that she fabricated imaginary incidents to fill memory gaps. Indeed, such an argument would clearly fail, for the victim’s testimony at trial virtually mirrored the prehypnotic statements which she gave to the police and the prosecutor. Even defendant does not point to any facts which the victim testified to at trial that she had not mentioned to the police prior to being hypnotized. Consequently, the two areas of concern identified in Hughes with respect to suggestibility, confabulation and fabrication are not at issue here.

What lies at the heart of this appeal, therefore, is defendant’s assertion that the victim’s confidence in her prehypnotic recollections, such as her identification of defendant, may have been artificially enhanced by the hypnotic process, thereby impairing defense counsel’s ability to conduct a meaningful cross-examination of her. It is precisely this concern which we termed the “major difficulty” underlying the use of hypnosis on persons who subsequently testify at trial. (People v Hughes, 59 NY2d 523, at p 546, supra; see, also, Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal L Rev 313, 339-340.) We also noted that the problem may become more serious where, as here, the hypnotist suggests to the subject that a particular event occurred or that the subject will remember everything when she returns to a normal state of consciousness. (People v Hughes, supra, at p 546.) Under these circumstances, defendant should have been afforded an opportunity to demonstrate that his ability to meaningfully cross-examine the victim was substantially impaired as a result of these alleged irregularities in the hypnotic process.

When the victim was hypnotized, she was told to review the events of May 4,1979 as if they were taking place on a television screen. At one point, after she was instructed to picture her attackers walking up the hill where she and her boyfriend were first accosted, Dr. Arann, the hypnotist, asked the victim: “Are they clearly in the light as they approach, where you first really got a good glimpse of them?” Because there was a serious dispute as to whether the victim ever had a good view of the two men, the hypnotist’s suggestion that she did get a “good glimpse” of them as they were “clearly in the light” may have strengthened the victim’s confidence in her prehypnotic identification of defendant as one of the men who attacked her. Furthermore, at the conclusion of the hypnotic session, the victim was told by the hypnotist that she would be able to remember everything that transpired during the session — thus possibly bolstering her confidence in the certainty of her prehypnotic recollections. To assess the effect, if any, that these and other statements made to the victim while she was under hypnosis may have had on defendant’s ability to meaningfully cross-examine her, a hearing is required. (People v Hughes, supra, at p 546.)

At that hearing, the court should take into consideration the amount of confidence the witness had in her initial recollections prior to being hypnotized, the extent of her belief in the ability of hypnosis to yield the truth, the degree to which she was hypnotized, the length of the session, the type and nature of questioning employed, the effectiveness of the hypnosis in yielding additional details, and any other factors which the court may deem important based upon the specific facts and circumstances of this case. (Id.) On the legal issue raised, the prosecutor will have the burden of demonstrating by clear and convincing proof that there has been no substantial impairment of the defendant’s ability to meaningfully cross-examine the victim. (Id., at p 547.)

Inasmuch as it cannot be said on the record before us that reversible error was committed at trial, there is no need at this time to order a new trial. Instead, the case should be remitted to Supreme Court for purposes of conducting the aforesaid hearing. If it is decided after the hearing that defendant’s ability to meaningfully cross-examine the victim was not substantially impaired by the hypnosis, the judgment of Supreme Court convicting defendant, upon a jury verdict, should be reinstated and amended to reflect the determination made at the hearing. On the other hand, should a contrary determination be made, a new trial must be held (see People v Brown, 62 NY2d 743) at which the testimony of the victim may be limited or excluded entirely depending on the findings.

As to defendant’s remaining legal contentions, we find no basis for ordering a new trial. Although a defendant is entitled to introduce evidence concerning hypnotic procedures used on a witness, to offer expert testimony regarding the effect of hypnosis on a witness’s recollection and to have the court give an appropriate charge to the jury (People v Hughes, 59 NY2d 523, at p 548, supra), the defendant here made no such demands. As a result, he cannot now assert as a ground for affirmance that he was barred from offering evidence to attack the hypnotic process itself. Defendant likewise failed to object to the prosecutor donning a ski mask in front of the jury and, therefore, has not preserved that issue for our review. (People v Cona, 49 NY2d 26, 33.) The court’s refusal to allow defendant to don the mask was not an abuse of discretion. Finally, we agree with the Appellate Division for the reasons stated thereat that it was not reversible error to admit into evidence videotapes of the lineups in which defendant was identified.

Accordingly, the order of the Appellate Division should be modified to provide for a hearing on the effect, if any, of hypnosis on defendant’s ability to meaningfully cross-examine the victim and if it is determined that said ability to meaningfully cross-examine was substantially impaired by virtue of the hypnosis, a new trial must be ordered. If the determination is in favor of the People, an amended judgment should be entered to reflect that determination which would be subject to appellate review if desired.

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

Order modified and case remitted to Supreme Court, Richmond County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

       We note that the only new details which the victim recalled under hypnosis were that defendant was wearing a type of army jacket, while Chamberlin wore a plaid shirt. Inasmuch as the victim could not subsequently recall having mentioned these details and did not refer to them at trial, the fact that she recalled them under hypnosis does not provide defendant with any basis for complaint.


author: Jones, J. Chief Judge Cooke

text:
    The People of the State of New York, Respondent, v Jerry Connor, Appellant.
    Argued May 4, 1984;
    decided July 5, 1984

      POINTS OF COUNSEL

      Mary R. Falk and William E. Hellerstein for appellant.
    Appellant was deprived of his right to be tried on a misdemeanor information where he was tried on a hearsay-based misdemeanor complaint and where the record reflects neither explicit consent on his part to be tried on the complaint nor any effective admonition of the “substantial” right to be tried on an information. (People v Colon, 59 NY2d 921; People v Weinberg, 34 NY2d 429; Carnley v Cochran, 369 US 506; People v Rodriguez, 50 NY2d 553.)

      Elizabeth Holtzman, District Attorney {Karen M. Wigle and Barbara D. Underwood of counsel), for respondent.
    I. By proceeding to trial on the misdemeanor complaint without objection defendant has failed to preserve for appellate review his claim that he was denied his right to trial by information. (People v Iannone, 45 NY2d 589; Matter of Camperlengo v Blum, 56 NY2d 251; People v Coleman, 56 NY2d 269; People v Weinberg, 34 NY2d 429; People v Michael, 48 NY2d 1; People v McLucas, 15 NY2d 167; People v Nicometi, 12 NY2d 428; People v Delancy, 48 NY2d 972; People v Pascale, 48 NY2d 997.) II. The misdemeanor complaint was effectively converted to an information by the sworn testimony of the undercover officer at a pretrial hearing. (People v Brown, 40 NY2d 183.)
   OPINION OF THE COURT

Jones, J.

Where a defendant represented by counsel has expressly waived the reading of his rights required by CPL 170.10 (subd 4, par [d]), including the reading of his right under CPL 170.65 (subds 1, 3) to be prosecuted upon an information, and thereafter proceeds through preparation for trial and trial on a misdemeanor complaint without raising objection thereto, he may be deemed to have waived prosecution by information and consented to prosecution on the misdemeanor complaint.

Defendant was arrested on August 4, 1981 and charged with criminal sale of marihuana in the fourth degree in a misdemeanor complaint sworn to that day by the arresting officer who had been informed by an undercover officer that defendant had sold marihuana to him. Defendant was thereafter issued a desk appearance ticket directing him to appear on August 26, 1981 and was released on his own recognizance. At his arraignment on August 26 where he appeared with his attorney, the attorney was asked if he would “waive the public reading of the defendant’s rights and charges”, to which the attorney replied, “So waived.” The case was subsequently adjourned several times at least on one occasion at defendant’s request, discovery motions were made, a suppression hearing was conducted, and ultimately a jury trial was held at which defendant was convicted. At no time did defendant or his attorney indicate any hesitancy that prosecution proceed on the misdemeanor complaint or any desire that the accusatory instrument be converted to an information.

Defendant nevertheless now contends that his conviction should be vacated because the misdemeanor complaint was never replaced by an information, as required by CPL 170.65 (subds 1, 3) in the absence of waiver of prosecution by information and consent to prosecution upon a misdemeanor complaint, and he argues that he never gave such waiver or consent. On arraignment the court is required to inform a defendant “[w]here the accusatory instrument is a misdemeanor complaint, that the defendant may not be prosecuted thereon or required to enter a plea thereto unless he consents to the same, and that in the absence of such consent such misdemeanor complaint will for prosecution purposes have to be replaced and superseded by an information” (CPL 170.10, subd 4, par [d]). On his arraignment in the present case, by his attorney’s waiving the “reading of the defendant’s rights and charges” defendant waived the mandated reading of this right. The waiver of the reading of the right followed by defendant’s subsequent actions in moving for discovery and for suppression of the physical evidence and of his postarrest oral statement and thereafter proceeding to trial on the misdemeanor complaint must be deemed in the circumstances of this case to have constituted a waiver of prosecution by information and a consent to prosecution on the misdemeanor complaint.

Contrary to defendant’s argument, there is nothing in the statute which mandates that the required waiver and consent be manifested in writing or by express oral statement. The requisite waiver and consent may be implied if the circumstances, as here, compel the conclusion that the defendant, competently represented by counsel, acquiesced in the prosecution of the charge against him on the misdemeanor complaint.

Our decision in People v Weinberg (34 NY2d 429) does not require a different result. We there held that any waiver and consent to prosecution on a misdemeanor complaint must be knowingly and intelligently given, that by implication the statute requires as a basis therefor that the defendant be informed of his right to insist on prosecution by information, and that in the absence of such an admonition such waiver and consent cannot be presumed. In that case, however, there had been no waiver, express or implied, of the statutory admonition. In the present case by waiving the reading of his rights defendant gave up his entitlement to the formality of such a prerequisite admonition. Counseled by his attorney, by his own conduct he foreclosed the giving of the very admonition on which he would now insist. The initial waiver of a reading of defendant’s rights determines the frame of reference in this case, and defendant’s subsequent participation, without voicing objection, in pretrial proceedings and thereafter throughout the trial must be interpreted in the perspective of that initial waiver and establishes the fact of the waiver and consent contemplated by CPL 170.65 (subd 3).

It is appropriate to place the substance of our holding today in its contextual setting. At his arraignment, defendant appeared with counsel and waived the reading of the procedural rights to which he was entitled by statute. He then proceeded to and through his trial with the advice of counsel. The evidence introduced against him, the rights accorded him on trial, and the procedures there followed would have been not one whit different had the trial been based on an information rather than a misdemeanor complaint. Defendant advances no claim that he was not accorded full notice of the charge made against him or that he was denied a full and fair opportunity to defend himself. He makes no claim that he is innocent of the charge of which he was convicted. Rather, he reaches out to assert a claim which can now only be described as immaterial — that at the outset of the criminal action the accusatory instrument was based on a hearsay accusation rather than supported by a nonhearsay affidavit (i.e., that it was made by the arresting officer who, although he had been promptly informed by radio of the sale by the undercover officer to whom the marihuana had been sold, had not himself witnessed the sale), a circumstance which thereafter in this instance was of no practical significance whatsoever. Now to sustain the defendant’s assertion on the record before us that he never waived his statutory right to be prosecuted on an information and did not consent to be prosecuted on the misdemeanor complaint would be to recognize the right of a defendant, after having put the People to their proof in the course of a jury trial to which no challenge is raised, to vitiate his conviction because of the neglect of the prosecutor to observe a procedural right to which defendant was unquestionably entitled, but of which neglect defendant’s counsel must be presumed to have been fully aware and to have chosen for reasons best known to him not to bring to the attention of the trial court at a time when the oversight could readily and promptly have been remedied. Such a tactic is not to be rewarded or such a result to be tolerated.

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

Chief Judge Cooke

(dissenting). No view of the record in

this case or of the law governing waiver of the right to be tried by information supports the majority’s conclusion that defendant waived this explicit statutory right, imbued with jurisdictional implications. Therefore, respectfully, I must dissent.

“The Criminal Court clearly has no jurisdiction to take to trial a defendant who is charged only by a complaint and who has not waived the filing of a sufficient information” (People v Colon, 110 Misc 2d 917, 920, revd 112 Misc 2d 790, revd on opn at Criminal Ct 59 NY2d 921). Moreover, it is well settled that a waiver of the right to proceed by information is valid only when knowingly and intelligently made, which requires that it be preceded by “an effective admonition of the right to be prosecuted by information” (People v Weinberg, 34 NY2d 429,431; see People v Redding, 109 Misc 2d 487, 489, n 1; People v Conoscenti, 83 Misc 2d 842, 843).

The majority does not directly dispute these propositions. Instead, it reasons that when a defendant agrees to “waive the public reading of defendant’s rights and charges” he or she has somehow “knowingly and intelligently” abandoned the right to be prosecuted by information. This utter dilution of the standard of waiver is without precedent, as the absence of citation in the majority’s opinion indicates. The well-recognized concept of waiver as “the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it” is thus jeopardized (see City of New York v State of New York, 40 NY2d 659, 669, citing Werking v Amity Estates, 2 NY2d 43, 52, citing Whitney, Contracts [4th ed, 1946], p 273; see, also, Johnson v Zerbst, 304 US 458, 464; Matter of Holtzman v Beatty, 97 AD2d 79, 83). Waiver embraces the element that the intention must be clearly established and cannot be inferred from doubtful or equivocal acts or language (see Cicero Ind. Dev. Corp. v Roberts, 63 Misc 2d 565, 571 [Simons, J.]; see, also, Matter of East 56th Plaza v Abrams, 91 AD2d 1129).

A determination whether a defendant has knowingly and intelligently waived a right will turn on the facts and circumstances of each case (cf. People v Epps, 37 NY2d 343, 350). At a minimum, however, such a determination may only be based on a finding that the defendant was aware “of the relevant circumstances and probable consequences” of the waiver (Matter of Lawrence S., 29 NY2d 206,208; see People v Gina M. M., 40 NY2d 595, 597; People v Hobson, 39 NY2d 479, 484; People v White, 32 NY2d 393, 399). There is no evidence in the record that would support an inference that defendant knew of his right to proceed by information or knew of the consequences of the waiver. That defendant may have waived an undefined “public reading” of his “rights and charges” sheds no light on whether defendant had knowledge of this particular right and intelligently waived it. Nor has the mere presence of counsel ever been deemed dispositive of the question whether waiver of a substantial right (here jurisdictional) was voluntary (see People v Sawyer, 57 NY2d 12; People v Epps, 37 NY2d 343, supra; People v White, 32 NY2d 393, supra; People v Nixon, 21 NY2d 338). Finally, unlike cases where waiver of a right may be inferred from counsel’s conduct in proceeding to trial (see, e.g., People v Rodriguez, 50 NY2d 553; People ex rel. LeMon v Mancusi, 31 NY2d 679; People v White, 2 NY2d 220), in the instant case the court was powerless to proceed with the prosecution or to render a judgment of conviction without there first being a waiver of the right to prosecution by information.

It was just 10 years ago that this court held, in a case where defendant was represented by counsel and proceeded to trial without being advised of his right to prosecution by information, that knowledge or waiver of the right to be prosecuted by information cannot be presumed and, therefore, waiver must be preceded by an “effective admonition” (People v Weinberg, 34 NY2d 429, 431, supra). Nothing has changed to justify abandoning that rule. Nor is advising defendant of this right a trifling procedural nicety. When the State has not converted a misdemeanor complaint into an information, the prosecution of the defendant may go no further in absence of an effective waiver. “[A] right too easily waived is no right at all” (People v Hobson, 39 NY2d 479, 484, supra).

Because there is no basis for concluding that defendant in this case waived his right to proceed by information, the order of the Appellate Term should be reversed and the complaint dismissed.

Judges Jasen, Meyer and Kaye concur with Judge Jones; Chief Judge Cooke dissents and votes to reverse in a separate opinion in which Judges Wachtler and Simons concur.

Order affirmed.

       This waiver of the mandated reading of the right did not, of course, by itself constitute a waiver of the procedural right to be tried on information.