author: Fuchsberg, J.

text:
    In the Matter of Robert S. (Anonymous), a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued January 15, 1981;
    decided February 26, 1981

      APPEARANCES OF COUNSEL

      Wendy Sue Lauring, William E. Hellerstein and Charles Schnitsky for appellant.

      Allen G. Schwartz, Corporation Counsel (Alexander J. Wulwick and Carolyn E. Demarest of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

At the fact-finding hearing in Family Court, appellant’s defense to the charge that he had committed an act which if committed by an adult would constitute the crime of murder in the second degree was justification by way of self-defense (Penal Law, § 35.15, subd 2, par [a]). It was undisputed that the victim, William Kirwan, had initiated an attack on appellant and that appellant had inflicted the stab wounds causing Kirwan’s death.

Appellant offered evidence as to Kirwan’s propensity for violent and aggressive behavior, especially when intoxicated, including proof of specific criminal acts, as to his history of psychiatric problems of drug abuse and intoxication, and as to his history of threats and attacks on other people. Defense counsel contended that the tendered proof would lend credence to defense testimony as to Kirwan’s behavior on the occasion in question. The court ruled that it would allow general reputation evidence to show that Kirwan was quarrelsome or vindictive, testimony as to Kirwan’s behavior toward defendant, and evidence that he was intoxicated or under the influence of drugs at the time of the assault, but would exclude any testimony relative to Kirwan’s general propensities for violence except to the extent that the latter might bear on appellant’s state of mind. Appellant claims that this was erroneously restrictive.

Only five years ago we were importuned, as we are again in the . present case, at least in part on the basis of less restrictive holdings in other jurisdictions, to discard the rule recognized in People v Rodawald (177 NY 408) and in self-defense cases to admit proof of specific acts of violence committed by the deceased victim for the purpose of showing that he was the aggressor. We then unanimously determined to modify the prior rule of total exclusion only to the extent, however, of holding that a trial court in the exercise of its sound discretion might “permit a defendant in a criminal case, where justification is an issue, to introduce evidence of the victim’s prior specific acts of violence of which the defendant had knowledge, provided that the acts sought to be established are reasonably related to the crime of which the defendant stands charged”, if accompanied by appropriate precautionary instructions (People v Miller, 39 NY 2d 543, 551). We rejected the invitation to abandon the Rodawald rule which the dissenter would now accept. Nothing is now newly advanced by the parties or the dissenter which would warrant enlargement of the modification so recently formulated. Here, in essence, the emphasis on the particular acts of the victim as tending to show a general propensity for violence is a familiar attempt to expand inferences drawn from previous instances of behavior into proof of the actual conduct of the defendant in the circumstances of the particular crime.

On the other issue tendered by appellant it suffices to observe that we find no abuse of discretion as a matter of law in the limitations imposed by the trial court on defense counsel’s cross-examination of Robert Sweeney, the People’s final witness, particularly in view of the failure of defense counsel, when the trial court sustained the general objections of the prosecutor, to specify or clarify the purpose for which the desired cross-examination was sought or the basis on which it was justified.

Fuchsberg, J.

(dissenting). I would yield to what the majority would characterize as the appellant’s “importuning” and roll back important aspects of this court’s now much criticized decision in People v Rodawald (177 NY 408 [1904]; see, e.g., Proposed Code of Evidence for State of New York, § 404, subd [a], par [2], commentary, at p 39, recommending repudiation of Rodawald; see, also, 1 Wharton’s Criminal Evidence [13th ed], § 236; 1 Wigmore, Evidence [3d ed], § 63, n 1 [contrary rule prevailing in Federal and majority of State jurisdictions] ).

Precedentially compelled adherence to flawed portions of Rodawald caused the trial court, sitting without a jury, to disregard the fundamental and pragmatic policy which recognizes that, in striking a balance between competing evidentiary rules, one must never lose sight of the fact that effective fact finding requires “utilizing all rational means for the ascertainment of truth” (4 The Works of Jeremy Bentham [Bowring ed, 1843]). Because a failure to be true to that principle deprived the appellant of proof which went to the heart of his guilt or innocence, there should be a new trial.

The proffered proof, in juxtaposition to the factual issues in this case, tells its own tale. The 15-year-old appellant’s primary position, essentially that he acted in self-defense, was supported by proof that the 19-year-old Kirwan not only initiated the brawl to which his life became forfeit, but that he had viciously and unceasingly carried the attack throughout. To the point, the trial record tells us that, among other things, Kirwan had been intoxicated all of the evening in question; that, while in that condition, before he took after the appellant, he had, in independent acts, assaulted the manager of a fast-food restaurant and harassed a barmaid; that, in the melee he had started, he violently threw the appellant to the ground; that, over forcible restraint which bystanders repeatedly tried to exert, he successfully fought free to resume his merciless pursuit of the appellant; and that it was he who drew the knife. However, most important to the question at hand is that this proof did not go uncontroverted. There was also conflicting testimony, for instance, to the effect that it was appellant who was first seen in possession of the knife and that Kirwan had come to a standstill at the instant he received the fatal wounds.

It was in this evidentiary context that unimpeachable documentation of decedent’s past behavior was offered for the purpose, as the majority acknowledges, of lending credence to appellant’s version of Kirwan’s conduct. The proffered proof was in the form of official records of psycho-pathological conduct and criminal acts on Kirwan’s part paralleling those to which the appellant claimed he had been subjected. These included recent repeated hospitalizations, whose charts recorded that Kirwan “drinks about half a quart of rum a day”; that within a year he had been arrested five times, “mainly for assault and robbery and once or twice for violent behavior”; that “his episodes of violence are more related to his short temper”; that Kirwan himself admitted that he “got into trouble when he drinks” and that, only some four months before his death, he had presented himself with a complaint of depression to which he attributed the fact that he had stabbed someone without reason. A still later entry certified to an objective medical diagnosis of “alcohol deterioration” and “explosive personality”. These entries, all within the year that came to an end in the encounter with the appellant, were capped by a still more recent one in the records of the New York City Division of Criminal Justice Services memorializing that Kirwan had been taken into custody for related behavior for the criminal aspects of which he admitted his guilt.

Obviously, the conduct the appellant’s defense attributed to Kirwan on the occasion out of which this prosecution arose and Kirwan’s comportment in the many episodes to which the excluded proof would have certified are about as identical as such things can ever be expected to be. It was impossible to claim that the latter was remote for it had continued virtually to the end and was both chronic and constitutional in nature. The reliability of the sources from which it was established is unquestionable. And, its competence and materiality is underlined by its pattern-like repetitiveness (People v Allweiss, 48 NY2d 40, 49 [evidence “admissible not because it showed the defendant’s propensity * * * but because it demonstrated a distinctive repetitive pattern”]; see People v Jackson, 39 NY2d 64; People v Molineux, 168 NY 264). Above all, it is notable that appellant’s rejected offer was not of Kirwan’s general character or reputation, but of specific acts which for all practical purposes mirrored those which he exhibited in his encounter with the appellant.

Concededly, appellant did not attempt to introduce the evidence to prove that he had prior knowledge of Kirwan’s uncontrollably violent and assaultive predisposition, for he did not rely on any theory of apprehension of danger justifying preventive action (cf. People v Miller, 39 NY2d 543). That was the central issue in Miller, in deciding which some five years ago this court found it necessary to reverse the trial court and the Appellate Division, each of which, expressly relying on Rodawald, had refused to permit the defendant there to introduce evidence to show that in shooting his sister he reacted to his knowledge of prior specific instances of intoxication, violence and psychotic behavior by the person whom he tried to ward off by an anticipatory attack. In so doing, as the majority acknowledges, the court, at that time and in so many words, stated that “ [w] e reverse not because the courts below failed to properly administer the law, but because we believe the law itself should be changed and that the defendant is entitled to the benefit of that change” (People v Miller, supra, at p 554). To the extent that it then went on to perpetuate the other undesirable aspects of Rodawald, it was largely uttering obiter dicta, hardly a basis for the survival of these troublesome vestiges.

To make the distinction clear, appellant’s counsel here made no mystery of his offer of proof. It was “to show that [Kirwan’s] behavior in the past was such that [it] would lend credence to testimony about his behavior on the night of [his death] ”. It was to this offer that the Trial Judge, citing to Rodawald, rejoined that he would accept and, concordantly, consider it only “subject to [its] connection” with a showing of prior, apprehension-causing knowledge, a condition which appellant had never claimed he would be in a position to meet and which, in any event, was unrelated to the ground on which its admissibility was being urged. The result is that the proof never went in.

To uphold this ruling, the court today finds it necessary to give renewed vitality to Rodawald. In my view, the reasons behind what was left of the rules it laid down, as this case illustrates, are too unpersuasive to leave any doubt that the remains should receive a respectful legal interment.

The rule bases its exclusions on a fear that evidence of propensity will be misapplied by a jury to license criminal conduct against an unworthy victim (People v Rodawald, 177 NY 408, 422-423, supra). In the present instance, of course, this rationale would overlook the fact that, in the Family Court in which this case was tried, the evidence was weighed, as already noted, by a Judge and not a jury. More generally, the rule also proceeds from the mistaken and, indeed, entirely unempirical assumption that modern juries, over three quarters of a century after Rodawald first spoke, are “bereft of educated and intelligent persons who can be expected to apply their ordinary judgment and practical experience” (cf. Havas v Victory Paper Stock Co., 49 NY2d 381, 386). Perhaps above all, where a foundation for introducing the evidence has been laid, as here, by relevant testimony depicting the incident in question, the possibility of such misunderstanding of the purpose to which this evidence may be applied is so outweighed by truth-finding considerations that concern for it is obviated (1 Wharton’s Criminal Evidence [13th ed], § 236; 1 Wigmore, Evidence [3d ed], § 63; see State v Miranda, 176 Conn 107, 110 [probative value of evidence of decedent’s predisposition outweighing any risk it “would tempt the jury ‘to measure the guilty of the accused by the deserts of the victim’ ”]).

Specifically, where “the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do”, no showing that the defendant knew of the decedent’s characteristic conduct should have been necessary (1 Wigmore, Evidence [3d ed], § 63, at p 470). As a matter of fundamental fairness, its .irresistible relevance permitted no other result. Admission of the proffered evidence would also have accorded the deference due our basic philosophic belief that, everything considered, in criminal cases there is to be greater latitude in admitting exculpatory evidence than in determining whether prejudicial potentialities in proof offered to show guilt should result in its exclusion (see, e.g., 1 Wigmore, Evidence, § 194).

Finally, I observe that it is largely upon these considerations that modern codes such as the Federal Rules of Evidence, the ALI Model Code of Evidence and our own New York State Proposed Code of Evidence, not to mention the pre-eminent text writers to whom I have already referred, urge abandonment of the rule the majority would today reassert.

For all the reasons stated, the order of the Appellate Division should be reversed, the Family Court determination should be vacated, and the appellant should receive a new trial.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg dissents and votes to reverse in an opinion.

Order affirmed, without costs, in a memorandum.

       States that, through judicial decision or adoption of evidentiary statutes patterned on the Federal Rules of Evidence, have abandoned the outmoded parts of Rodawald include Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia, Iowa, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Montana, Oregon, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, South Dakota, Texas, Virginia, Washington and Wisconsin. (But see Commonwealth v Connolly, 356 Mass 617; Commonwealth v Horne, 479 Pa 496.) Most of the remaining States have not had occasion to reach the question.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of John E. Gibson, Respondent-Appellant, v Watkins Glen Central School District et al., Appellants-Respondents.
    Argued February 18, 1981;
    decided February 26, 1981

      APPEARANCES OF COUNSEL

      Thomas E. Reilly for respondent-appellant.

      Henry Valent for appellants-respondents.

      Frederick Goldfeder and Darrell W. Harp for Commissioner of Transportation of the State°of New York, amicus curae.

   OPINION OF THE COURT

On respondents’ appeal: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (68 AD2d 967).

On petitioner’s appeal: Appeal dismissed, without costs, on the ground that petitioner has no right to appeal under CPLR 5601 (subd [d]), inasmuch as he was not aggrieved by the prior order of the Appellate Division brought up for review (CPLR 5511).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Lisa Ann U. and Another, Alleged to be Permanently Neglected Children. Thirza V., Appellant; St. Lawrence County Department of Social Services, Respondent.
    Argued February 19, 1981;
    decided February 26, 1981

      APPEARANCES OF COUNSEL

      Robert J. Sassone for appellant.

      Terrence J. Whelan and Ethan K. Phillips for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the permanent neglect petitions dismissed.

Appellant mother voluntarily placed her two children with the St. Lawrence County Department of Social Services on January 9, 1976. On May 23, 1977 the department filed permanent neglect petitions with Family Court alleging that, notwithstanding the efforts of the county department, appellant had failed for a period of more than one year following that placement substantially and continuously or repeatedly to maintain contact with and plan for the future of her daughters (Social Services Law, § 384-b, subd 4, par [d]).

Family Court determined that the daughters were permanently neglected children on the ground that appellant had failed for the prescribed period to plan for the future of her children, and this determination was affirmed by a majority at the Appellate Division. We now vacate that determination as a matter of law.

The record discloses the following undisputed facts. Appellant participated in conferences with her caseworker related at least in part to future plans for her daughters on March 9, July 13, September 30 and December 1, 1976, and on January 6 and January 13, 1977. On May 5, 1976 appellant’s caseworker prepared a detailed “service plan” designed to reunite appellant and her daughters. This plan was sent to appellant and discussed with her by a caseworker from the Orange County Social Services Department in early July, 1976. On July 13, 1976 when appellant was back in St. Lawrence County she discussed the plan with her St. Lawrence County caseworker, and an amended treatment plan was designed which she then accepted. In view of these uncontested facts, the record is insufficient as a matter of law to sustain the statutory determination made by Family Court and accepted at the Appellate Division.

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

Order reversed, without costs, and petitions dismissed in a memorandum.


text:
    The People of the State of New York ex rel. Eugene Delrow, Appellant, v New York State Division of Parole et al., Respondents.
    Decided February 26, 1981

      APPEARANCES OF COUNSEL

      William E. Hellerstein and Richard Greenberg for appellant.

      Robert Abrams, Attorney-General (Frederick R. Walsh of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, without costs, and matter remitted to the Appellate Division, First Department, for reconsideration in the light of People ex rel. Gonzales v Dalsheim (52 NY2d 9), noting, however, that this disposition is without prejudice to either party, if so advised, proceeding in timely fashion, pursuant to either CPLR 5601 or 5602, with respect to the order of the Appellate Division entered after reconsideration.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Abraham Podolsky et al., Appellants, v Mario M. Cuomo, as Secretary of State of the State of New York, et al., Respondents.
    Argued February 19, 1981;
    decided February 26, 1981

      APPEARANCES OF COUNSEL

      Scott E. Molten for appellant.

      Robert Abrams, Attorney-General (Arlene R. Silverman and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The record reveals that there was substantial evidence presented before the hearing officer to support the conclusion that petitioner Podolsky, a real estate broker, initiated demonstrably baseless lawsuits to recover commissions from alleged clients. There also was substantial evidence indicating that petitioner Peldman wrongfully demanded commissions through a baseless lawsuit in violation of section 442-a of the Real Property Law. Accordingly, there was adequate support for respondent’s conclusion that petitioners demonstrated untrustworthiness to act as a real estate broker or salesperson (Real Property Law, § 441-c, subd 1).

We find baseless petitioners’ assertion that they were denied due process by various alleged infirmities in the hearing process.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v Louis Salters, Appellant.
    Decided February 26, 1981

      APPEARANCES OF COUNSEL

      Joseph F. De Felice for appellant.

      John J. Santucci, District Attorney (Michael J. Connolly of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed for reasons stated in the memorandum at the Appellate Division (75 AD2d 901).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Ben Schwartz, Appellant.
    Argued February 17, 1981;
    decided February 26, 1981

      APPEARANCES OF COUNSEL

      Joseph Panzer for appellant.

      Robert M. Morgenthau, District Attorney (Daniel J. Castleman and Vivian Berger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum

On the record here, it was error to refuse to grant the application for a hearing on defendant’s motion to controvert the search warrant. Therefore the order of the Appellate Division should be modified and the matter remitted to Supreme Court, New York County, to hold a hearing and determine the motion anew. In the event defendant prevails, the plea should be vacated and appropriate further proceedings ensue. However, if it is the People who prevail, the judgment should be amended to reflect the additional proceedings that have taken place.

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

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


text:
    Conduit and Foundation Corporation, Respondent, v State of New York, Appellant.
    (Claim No. 54809.)
    Argued January 12, 1981;
    decided February 26, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (George M. Thorpe, Shirley Adelson Siegel and Richard J. Dorsey of counsel), for appellant.

      David R. Paley and Tony Berman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reinstating the judgment of the Court of Claims, except as to the award on the ninth cause of action, which should be reduced to $10,299.34. As so modified, the order should be affirmed, with costs to claimant.

The Court of Claims correctly concluded that as to the subsoil conditions the State made no misrepresentation and claimant assumed the risk of the “high incidence of boulders” of which the specification warned. Recovery of the consequential damages sought in the second through fifth causes of action was properly denied (see Foundation Co. v State of New York, 233 NY 177, 184-185; Public Constructors v State of New York, 55 AD2d 368). That direct costs were allowed is not inconsistent, for by agreeing to the redesign requested by claimant the State in effect agreed to the additional direct costs. It did not agree to pay damages for the delay and since it made no misrepresentation incurred no liability for such damages.

The courts below have, however, improperly permitted recovery on the ninth cause of action of damages for increased costs associated with the installation of a sewer on Rust Street. They found that the State misrepresented the subsoil conditions in that area and failed to supply adequate plans indicating the presence of various utility lines. With respect to the claimed misrepresentation, the State had made no test borings on Rust Street and did not possess any detailed special knowledge of the subsoil conditions there. The contract documents instructed bidders to make their own inspection of the site and expressly precluded reliance upon any representations as to the physical condition of the worksite. Accordingly, there is as a matter of law no basis in this record for the finding of misrepresentation as to the subsoil conditions on Rust Street, and any additional costs stemming from the nested boulders must be borne by the claimant (see Foundation Co. v State of New York, supra, at pp 184-185). To the extent that damages under the ninth cause of action were premised on faulty plans which failed to disclose utility lines on Rust Street, the contract expressly provided that “the contractor is cautioned that these locations (gas, electrical lines, etc.) are not guaranteed nor is there any guarantee that all such lines in existence, within the contract limits, have been shown on the plans.” Claimant assumed the risk that the sewer to be built might run afoul of existing utility lines, or be inconveniently proximate to them. Thus, recovery on the ninth cause of action should be barred except to the extent that the State concedes liability for $10,299.34 for the specific delay in approval of a redesign plan caused by its consultants.

The challenges by the State to awards by the Court of Claims on the other causes of action must be rejected because the affirmed findings of fact with respect to them have support in the record.

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

Order modified, with costs to claimant, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of the Estate of John Jemzura, Deceased. George Jemzura, as Administrator of the Estate of John Jemzura, Deceased, Appellant; Katherine Griffin et al., Respondents.
    Submitted February 19, 1981;
    decided February 26, 1981

      APPEARANCES OF COUNSEL

      George Jemzura, appellant pro se.

      Joe Schapiro for Katherine Griffin, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (65 AD2d 656).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Thermasol, Ltd., Respondent, v Donald R. Dreiske, Appellant.
    Decided February 26, 1981

      APPEARANCES OF COUNSEL

      Carmeron K. Wehringer for appellant.

      Preston S. Scher for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, without costs. There i$ no basis in the record for vacatur of the award under CPLR 7511.

Concur: Chief Judge Cooke and Judges Jasen, Gabriellt, Jones, Wachtler, Fuchsberg and Meyer.


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Clarence Adams, Appellant.
    Argued March 30, 1981;
    decided May 7, 1981

      POINTS OF COUNSEL

      Henry Winestine and William E. Hellerstein for appellant.
    I. Evidence seized in an illegal search of appellant’s apartment should have been suppressed. (US Const, 4th, 14th Amdts; NY Const, art I, § 12.) (Schneckloth v Bustamonte, 412 US 218; Katz v United States, 389 US 347; Agnello v United States, 269 US 20; Vale v Louisiana, 399 US 30; Coolidge v New Hampshire, 403 US 443; People v Belton, 50 NY2d 447; People v Robertson, 61 AD2d 600, 48 NY2d 993; People v Vaccaro, 39 NY2d 468; People v Cadby, 62 AD2d 52.) II. The trial court erred when prior to trial it dismissed the count charging reckless endangerment over defense objection and then refused to submit both degrees of reckless endangerment as well as manslaughter in the first degree as lesser included offenses of murder in the first degree, and also refused to submit the affirmative defense of extreme emotional disturbance. (People v Mussenden, 308 NY 558; People v Johnson, 45 NY2d 546; People v Teasley, 73 AD 2d 548; People v Williams, 40 AD2d 1023; People v Ross, 70 AD2d 541; People v Rodriguez, 63 AD2d 919; People v Asan, 22 NY2d 526; People v Ortiz, 52 AD2d 518; People v Steele, 26 NY2d 526.) III. The trial court’s erroneous exclusion of evidence which would have impeached a principal prosecution witness violated appellant’s right to confrontation (US Const, 6th, 14th Amdts; NY Const, art I, § 6). (Sabatino v Cur-

      tiss Nat. Bank of Miami Springs, 415 F2d 632, 396 US 1057; United States v Smith, 521 F2d 957.)

      Mario Merola, District Attorney (Timothy J. McGinn and Steven R. Kartagener of counsel), for respondent.
    I. Defendant’s guilt was established by overwhelming evidence. II. The trial court properly denied defendant’s motion to suppress the physical evidence found in his apartment within minutes of the shooting. (People v Horman, 22 NY2d 378; People v De Santis, 59 AD2d 257, 46 NY2d 82; People v Goodman, 51 AD2d 1008; Coolidge v New Hampshire, 403 US 443; People v Robertson, 61 AD2d 600, 48 NY2d 993; Barnes v United States, 378 F2d 646; United States v Durkin, 335 F Supp 922; People v Cosme, 48 NY2d 286; People v Oden, 36 NY2d 382; United States v Matlock, 415 US 164.) III. The court’s charge was in all respects proper. (People v Williams, 40 AD2d 1023; People v Bracey, 41 NY2d 296; People v Rodriguez, 63 AD2d 919; People v Scarborough, 49 NY2d 364; People v Mussenden, 308 NY 558; People v Discala, 45 NY2d 38; People v Teasley, 73 AD2d 548; People v Vidal, 26 NY2d 249; People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197.) IV. The trial court properly excluded the firearm discharge report. (Johnson v Lutz, 253 NY 124; United States v Smith, 521 F2d 957; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Jasen, J.

On this appeal, we are once again called upon to delineate the bounds of the exclusionary rule. The specific question presented is whether evidence obtained as a result of the warrantless search of a closet in the defendant’s apartment should have been suppressed. To answer this question, we must determine whether, under the circumstances of this case, the reasonable, although mistaken, reliance by police officers on the authority of an individual to consent to a search should result in the suppression of evidence obtained as a result of that search.

At 9:00 p.m. on September 13,1976, Housing Patrolman Rudolfo Quinones was on'duty at Tinton Avenue and 163rd Street in Bronx County. Alerted by a commotion across the street from where he was standing, Quinones observed a man, later identified as defendant, holding a gun to a woman’s head. As Quinones approached the couple, the defendant released the woman and began to move in Quinones’ direction. Drawing his gun, Quinones ordered the defendant to halt and drop his weapon. The defendant, who was then approximately 25 feet away, fired two shots at Quinones. Patrolman Quinones fired two shots in return and defendant fell to the ground. Believing defendant to be wounded, Quinones began to walk toward him. The defendant suddenly wheeled and fired two more shots at Quinones which fortunately also missed their mark. Quinones was then not able to return any shots because some bystanders had come into the line of fire. Thereupon, defendant got to his feet and fled through the crowd that had gathered at the scene, disappearing into a nearby wooded area. Quinones radioed for assistance and several police cars soon arrived. Quinones gave the arriving officers a brief description of the perpetrator and the gun he was carrying which, according to Quinones, was “like a .32.” A search of the immediate vicinity by the officers proved to be unsuccessful.

At this point, a woman, Arab Blue, approached the police and identified herself as the girlfriend of the gunman. She provided the police with the defendant’s name and address and urged the police to go to his apartment because he had threatened to kill her. The police were also told by Blue that defendant kept weapons and ammunition at the apartment and that she was in fear that he might have returned there to carry out his threat against her. Blue then escorted Quinones and the other officers to the defendant’s nearby apartment and gave them access by opening the door with a key she was carrying. Upon entering, a cursory inspection of the premises revealed that neither the defendant nor anyone else was present. Blue then pointed out the closet in which she claimed defendant stored his weapons. One of the officers opened the closet door and inside the police found a .308 calibre rifle, 25 rounds of ammunition for the rifle and 44 rounds of .32 calibre ammunition. The police seized these items and exited the apartment without otherwise searching the premises. Upon leaving the building, Blue informed the officers that she did not live in the apartment, but resided elsewhere. Five days later, defendant was arrested and charged, inter alia, with the attempted murder of Patrolman Quinones.

Defendant made a pretrial motion to suppress the evidence obtained from his closet. After a hearing, at which only Quinones was called to testify as to the events of September 13, defendant’s motion was denied. Noting that it was incumbent upon the police to pursue their investigation by going to the apartment to see if the defendant was there and that entry to the premises “was granted by somebody who ostensibly had permission” to admit them, the suppression court ruled that no warrant was necessary under the circumstances in order to conduct the limited search of the closet.

On appeal, the Appellate Division affirmed defendant’s conviction, two Justices concurring in result and one Justice dissenting. According to the court (p 159), the “limited search was, in effect, conducted by [Arab] Blue, a private individual, not the police” and, therefore, provided no basis for suppression. Alternatively, the Appellate Division adopted the reasoning of the suppression court in denying defendant’s motion to suppress, to wit: that the police needed no warrant under the circumstances because they were given permission to open the closet by one appearing to have authortiy to consent to the search.

The defendant contends that his motion to suppress was erroneously denied. He argues that the entry by the police into his closet was a “search” within the meaning of the Fourth Amendment and, therefore, is subject to the exclusionary rule. The defendant, while conceding that the information provided by Arab. Blue gave the police probable cause to search for weapons in the closet, nevertheless asserts that the failure to obtain a warrant requires that the evidence seized be suppressed. We disagree.

At the outset, we reject the proposition, apparently adopted by the court below, that the search of defendant’s closet is not subject to Fourth Amendment scrutiny because it was, in effect, conducted by Arab Blue, a private individual. Of course, it is well settled that evidence obtained as a result of an unauthorized search by a private party is not subject to the exclusionary rule. (Burdeau v McDowell, 256 US 465; People v Gleeson, 36 NY2d 462, 465; People v Horman, 22 NY2d 378, 382.) There is, however, no authority for the proposition that a search actually conducted by police officers, although at the direction of a private individual, is not subject to the requirements of the Fourth Amendment. Indeed, the law is quite to the contrary. Where, as here, there has been affirmative participation by government officials in obtaining evidence, the police cannot avoid the constitutional limitations imposed upon them by claiming that the acts of a private party are also involved. (Lustig v United States, 338 US 74; People v Jones, 47 NY2d 528; People v Esposito, 37 NY2d 156; cf. People v Adler, 50 NY2d 730.) Evidence obtained by the police from the defendant’s closet clearly was the fruit of a “search” within the meaning of the Constitution and, therefore, calls into play the full panoply of Fourth Amendment considerations.

Although by its express terms the Fourth Amendment prohibits only “unreasonable” searches and seizures, the Supreme Court has made it clear that “a search conducted without a warrant issued upon probable cause is ‘per se unreasonable * * * subject only to a few specifically established and well-delineated exceptions.’” (Schneckloth v Bustamonte, 412 US 218,219, quoting Katz v United States, 389 US 347, 357; see, also, Stoner v California, 376 US 483, 486.) Two such exceptions to the warrant requirement which have developed over the years are searches conducted pursuant to consent (Davis v United, States, 328 US 582, 593-594; Zap v United States, 328 US 624, 630) and searches undertaken in what have come to be called “exigent circumstances” (see Mincey v Arizona, 437 US 385, 392-394; Michigan v Tyler, 436 US 499; People v Mitchell, 39 NY2d 173). Elements of both exceptions to the warrant requirement are present in this case.

It is well established that the police need not procure a warrant in order to conduct a lawful search when they have obtained the voluntary consent of a party possessing the requisite authority or control over the premises or property to be inspected. (Schneckloth v Bustamonte, 412 US 218, supra; Davis v United States, 328 US 582, supra; People v Lane, 10 NY2d 347.) Furthermore, it is equally clear that these permissive searches are not limited to those instances where consent was given by the defendant. Rather, a lawful search may be conducted without a warrant where “permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” (United States v Matlock, 415 US 164,171; Coolidge v New Hampshire, 403 US 443; Frazier v Cupp, 394 US 731; People v Cosme, 48 NY2d 286.) However, the question whether a warrantless search may be sustained merely upon a showing that the searching officers reasonably, albeit erroneously, believed that the consenting party had sufficient authority over the premises or property to permit the search has been expressly left open by the Supreme Court (United States v Matlock, supra, at p 177, n 14) and heretofore has not been addressed by this court.

Other courts addressing this issue in analogous situations have, for the most part, refused to suppress evidence obtained as the result of a reasonable, good faith belief by law enforcement officials that permission was given by one with actual authority to consent to a search. (E.g., United States v Peterson, 524 F2d 167, cert den 423 US 1088; United States v Sells, 496 F2d 912; United States v Miles, 480 F2d 1217; Nix v State, 621 P2d 1347 [Alaska]; People v Gorg, 45 Cal 2d 776; State v Christian, 26 Wash App 542; State v Drake, 343 So 2d 1336 [Fla] ; but see, e.g., United States v Selberg, 630 F2d 1292; United States ex rel. Cabey v Mazurkiewicz, 431 F2d 839.) The rationale underlying this approach derives from the fact that the Fourth Amendment protects only “against unreasonable searches and seizures”. Hence, if the police are acting in a reasonable fashion in response to the circumstances with which they are confronted, then an error in judgment in failing to ascertain the actual authority of the person to consent should not give rise to an unreasonable search. (Cf. Hill v California, 401 US 797.)

A further, although somewhat related, consideration behind this line of reasoning involves the very purpose of the exclusionary rule. The exclusionary rule is designed “to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures”, not redress “a personal constitutional right of the party aggrieved.” (United States v Calandra, 414 US 338, 347-348.) Because the exclusionary rule is primarily aimed at deterring police misconduct, these courts have recognized that its purpose would not be furthered by applying it in instances where the police, believing that they are acting lawfully, engage in a search which later turns out to be “unlawful” because, in hindsight, their reasonable reliance on the consenting person’s authority proves to be erroneous. (See, e.g., Nix v State, supra; People v Gorg, supra; see, generally, La Fave, Search and Seizure, § 8.3, subd [g].)

We would agree that where the searching officers rely in good faith on the apparent capability of an individual to consent to a search and the circumstances reasonably indicate that that individual does, in fact, have the authority to consent, evidence obtained as the result of such a search should not be suppressed. Application of the exclusionary rule in such instances of reasonable, good faith reliance by the police would do little in terms of deterring misconduct by the authorities in furtherance of the protections afforded by the Fourth Amendment. We emphasize that the police belief must be reasonable, based upon an objective view of the circumstances present and not upon the subjective good faith of the searching officers. Moreover, a warrantless search will not be justified merely upon a bald assertion by the consenting party that they possess the requisite authority. Nor may the police proceed without making some inquiry into the actual state of authority when they are faced with a situation which would cause a reasonable person to question the consenting party’s power or control over the premises or property to be inspected. In such instances, bare reliance on the third party’s authority to consent would not be reasonable and would, therefore, subject any such search to the strictures of the exclusionary rule.

Applying these principles to the present case, the police were approached minutes after the shooting took place by a woman who claimed to be defendant’s girlfriend. She gave the police the defendant’s name and address, which was in the immediate vicinity, and said that he threatened to kill her. She provided precise information as to the nature and location in defendant’s apartment of certain contraband, weapons and ammunition, and she possessed a key to the premises. While these facts may have created the inference that Arah Blue resided with defendant in the apartment, it was equally possible that she did not possess the requisite authority and control over the premises to consent to a search. Under ordinary circumstances, faced with such an ambiguous situation, the police should have made inquiry so as to ascertain whether Arah Blue possessed the authority to consent to a search. Indeed, the simple expedient of asking her where she lived prior to conducting the search could have quickly clarified the situation as evidenced by the fact that she informed the police of her actual residence immediately after leaving the apartment. Nevertheless, we conclude that, under the exigent circumstances which confronted the police, it was clearly reasonable for the officers, based on Arah Blue’s conduct, to rely on her apparent capability to consent to a search of the closet without making an inquiry to ascertain her actual authority over the premises.

Here, within minutes of a shooting directed at a fellow officer, the police were confronted by a woman who stated that the gunman was her boyfriend, that she feared he would try to kill her and that he may have returned to his nearby apartment where he stored weapons and ammunition. This man posed an immediate threat to both Arah Blue and the police; he had just senselessly fired four shots at Officer Quinones; he had escaped into a nearby area and was still at large; and he had an arsenal of weapons stored in his apartment. Faced with these exigent circumstances, the police were under a duty to go to the apartment in order to apprehend the gunman before he could harm anyone else. Having been admitted to the apartment by one who appeared to have control over the premises, the police were justified in not only determining whether the gunman was present, but also in immediately securing any weapons which could be used against them or Arah Blue. (Cf. Warden v Hayden, 387 US 294, 298-299.) Time was of the essence and the police conduct was limited in scope to searching for the defendant and seizing the cache of weapons and ammunition stored in the closet. The police should not now be faulted for failing to undertake a more thorough inquiry into Arah Blue’s authority to consent to the search of the closet. The officers’ reliance on her authority over the premises was reasonable and warranted by the exigencies of the situation, which called for immediate action.

Detached from the tension and drama of the moment, it is sometimes easy for an appellate court to lose sight of the fact that it is the reasonableness of police action which is the linchpin to analysis of any case arising under the Fourth Amendment. When judged in accordance with “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (Brinegar v United States, 338 US 160, 175), the police conduct of securing the rifle and ammunition in the defendant’s closet was a reasonable response to the situation in which they found themselves and, therefore, was not proscribed by the exclusionary rule. We have examined the defendant’s remaining contentions and have found them to be without merit.

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

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

Order affirmed.

      . The fact that the box of .32 calibre ammunition contained only 44 rounds became particularly relevant at trial in that such ammunition is normally sold in boxes of 50, indicating that 6 rounds had been removed. Defendant testified at trial that he had found the box of ammunition on a subway and that he never owned a .32 calibre handgun.

      . Defendant never raised the contention in support of his motion to suppress that the initial entry into his apartment was unauthorized. Moreover, he conceded at the Appellate Division that the police could properly enter the apartment for purposes of making an arrest based on the information provided by Arab Blue. On this appeal, therefore, we are concerned solely with the warrantless search of defendant’s closet and do not consider the legality of the initial entry by the police into his apartment.


author:
Jones, J.
      Fuchsberg, J.

text:
    In the Matter of The Legal Aid Society of Sullivan County, Inc., Appellant, v Louis B. Scheinman, as County Court Judge, County of Sullivan, State of New York, et al., Respondents.
    Argued February 11, 1981;
    decided May 12, 1981

      POINTS OF COUNSEL

      Carl J. Silverstein and Gary Waldman for appellant.
    A criminal defendant charged with an offense subjecting him to possible confinement has an absolute right to divestiture under CPL 170.25 to assure him of his constitutional right to a trial by a court presided over by a lawyer-judge. (North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218; Matter of Simpson v Swartwood, 69 AD2d 954; People v Dean, 96 Misc 2d 781.)

      Joseph Jaffe, District Attorney (Philip E. Conaty of counsel), for respondents.
    I. The court below properly dismissed the petition for a writ in the nature of mandamus. (Matter of State of New York v King, 36 NY2d 59; Matter of Saunders v Lupiano, 30 AD2d 803; Matter of State of New York v Harvey, 55 AD2d 716; Matter of Burton v Marshall, 20 NY2d 797; Matter of Hewitt, 81 Misc 2d 202; People v Prisco, 68 Misc 2d 493; North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218.) II. CPL 170.25 permitting discretionary removal to a superior court does not violate a defendant’s due process rights. (North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218; Matter of Hewitt, 81 Misc 2d 202; People v Lovejoy, 66 Misc 2d 1003; People v Prisco, 68 Misc 2d 493; People v McAnarney, 28 Misc 2d 778; People v Rosenberg, 59 Misc 342; Simpson v Swartwood, 69 AD2d 954; Matter of Murchison, 349 US 133; Bartlett v Bedient, 47 AD2d 389.)

      Eugene W. Salisbury, Duncan S. Mac Affer and Frank S. Kedzielawa for New York State Association of Magistrates, amicus curiae.

    I. New York’s use of nonlawyer Town and Village Justices, authorized by the State Constitution, represents an acceptable balance of the competing interests. It comports with basic concepts of fairness and justice. Consequently, it is compatible with the due process clause of the Fourteenth Amendment to the United States Constitution. (North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218; Colten v Kentucky, 407 US 104; Cafeteria Workers v McElroy, 367 US 886; Hurtado v California, 110 US 516; Stein v New York, 346 US 156; Lyons v Oklahoma, 322 US 596; Lisenba v California, 314 US 219; Weeks v United States, 232 US 383.) II. Similar claims of due process denial have been judicially rejected by our sister States. (Matter of Storace, 30 AD2d 220; California v Gordon, 420 US 938; Landes v Town of North Hempstead, 20 NY2d 417; Argersinger v Hamlin, 407 US 25; Jackman v Rosenbaum Co., 260 US 22; New State Ice Co. v Liebman, 285 US 262.) III. Education in a New York law school and admission to the New York Bar offer less assurance of judicial competence in local criminal proceedings than participation in New York’s Magistrates training program.

      Rene H. Reixach for Greater Upstate Law Project, amicus curiae.

    An absolute right to choose trial before a lawyer-judge is required by due process where a defendant is subject to incarceration upon conviction. (North v Russell, 427 US 328; Argersinger v Hamlin, 407 US 25.)

      Edward C. Cosgrove and Ernest G. Anstey for District Attorney’s Association of the State of New York, amicus curiae.

    CPL 170.25 does not require the absolute right to divestiture by a superior court of charges pending before a local criminal court solely because the Justices of such local criminal court are not lawyers. (North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218.)
   OPINION OF THE COURT

Jones, J.

Relief under CPLR article 78 in the nature of mandamus does not lie to compel the removal by a superior court of charges pending in a local criminal court in order to assure a defendant trial before a lawyer-trained Judge.

By informations lodged against him in the Town of Mamakating Justice Court in Sullivan County, one John Housman stands charged with disorderly conduct and resisting arrest. Neither charge has yet been prosecuted. Shortly after being arraigned on those charges, however, Housman’s assigned counsel, petitioner Legal Aid Society of Sullivan County, on his behalf moved before Louis B. Scheinman, a Judge of the County of Sullivan County, to have the charges against him prosecuted by indictment and to have the matter presented to the Grand Jury. That motion was based on CPL 170.25 (subd 1) which provides in part that “a superior court having jurisdiction to prosecute such misdemeanor charge by indictment may, upon [a] * * * showing good cause to believe that the interests of justice so require, order that such charge be prosecuted by indictment”. Housman contended that, because none of the Justices of the local criminal court in the Town of Mamakating were admitted to practice law, he had a constitutional right to have his case removed to a court which would afford him a trial presided over by a Judge who was a lawyer. When that application was denied, the Legal Aid Society in its own name instituted the present article 78 proceeding in the Appellate Division for a writ in the nature of mandamus to compel Judge Scheinman to grant the relief Housman had sought under CPL 170.25 (subd 1). The Appellate Division dismissed the petition. We now affirm.

At the threshold we note the questionable standing of the Legal Aid Society to institute the present proceeding. The only party directly affected is the client, whose interests may be said to be placed in jeopardy under the statutory provisions. The Legal Aid Society in effect seeks an advisory declaratory opinion on the basis of which it may formulate the advice to be given to its client. No authority is cited to warrant judicial entertainment of any such application. Inasmuch, however, as this issue is not raised by respondent we are hesitant to predicate a disposition of the present appeal on this ground. It is assumed, therefore, without deciding, that the present proceeding is not to be dismissed for lack of standing on the part of the Legal Aid Society.

We turn then to the question of the availability of article 78 relief in the present circumstances. Mandamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief" sought. That is not the case in this instance. Additionally, to hold, as would the dissenter, that mandamus would lie in the present case would be to project the court into the very practice all courts seeks assiduously to avoid — the making of pronouncements with respect to constitutional issues whose resolution is not necessary to the disposition of the case before the court. The circumstance that we honor this jurisprudential principle warrants no inference, of course, as to how we would resolve the constitutional issue if it were to be addressed.

More significant and controlling is the fact that mandamus like prohibition is an extraordinary remedy, and we have consistently held that such remedies do not lie for interlocutory relief which operates to disrupt the normal progress of a pending criminal action. It is well settled that mandamus is not available to remedy or prevent trial errors. Sound principles of judicial administration require that their correction be left to the normal avenues of appellate review.

The denial of article 78 relief here is mandated by our decision in Matter of State of New York v King (36 NY2d 59, 62-65) in which then Chief Judge Breitel wrote for a unanimous court:

“The courts may not entertain a collateral proceeding to review an error of law in a pending criminal action, however egregious and however unreviewable, by way of immediate appeal or by appeal after the final judgment of conviction or acquittal, whichever may eventuate.

* * *

“Were allowance of this kind of proceeding to become a precedent, one would have to anticipate innumerable proceedings in all sorts of criminal matters to review allegedly prejudicial errors of law for which there would be no eventual appellate review or only appellate review after final judgments, and then only of conviction. No trial can be conducted while appellate courts by their own protracted proceedings review the alleged errors which may arise preliminary to the trial, during the trial, and before verdict and judgment. Such a system is neither civilized nor even rational. And most certainly it would make speedy trial a legal impossibility.

* * *

“Were the court to conclude otherwise than to reject this unsound and novel extension of the extraordinary ancient remedies of prohibition and mandamus, it might be a credit to man’s ingenuity but a disabling discredit to the jurisprudence.”

In King, of course, we confronted an issue as to which it was recognized that the People could never seek judicial review by way of appeal; nonetheless relief under article 78 was denied. By contrast, in the present case, Housman can obtain full judicial review of his claim (that he was deprived of his constitutional rights when the County Judge rejected his application for removal) on direct appeal from any judgment of conviction against him. Where that alternative is present, to encumber criminal proceedings with collateral, interlocutory actions, disruptive of the normal progress of pending charges, is impermissible.

Accordingly, for the reasons stated, the judgment of the Appellate Division dismissing the petition should be affirmed, without costs.

Fuchsberg, J.

(dissenting). Is it unconstitutional for a defendant charged with a crime, conviction for which could bring imprisonment, to be compelled to have his case tried before a Judge who is not a lawyer? That is the real issue in this case.

As I see it, the majority’s decision, purportedly based on procedural grounds, despite its protestations to the contrary necessarily assumes its own resolution of the substantive constitutional question. The assumption is that a decision, whether to remove a case, pursuant to CPL 170.25, from a local criminal court presided over by a lay Justice to a “superior court” at which only lawyer-judges may preside, rests within the discretion of a “superior court” Judge.

Because the holding to which this premise leads the court today implicitly deprives the defendant of due process of law, such interpretation of the statute would render it unconstitutional. However, since it is possible to interpret CPL 170.25 to require removal to a “superior court” under these circumstances, that is how I believe the statute should be read.

My holding, of course, would make any denial of a CPL 170.25 motion subject to mandamus. For, while collateral proceedings in a criminal matter are disfavored (e.g., Matter of State of New York v King, 36 NY2d 59), it is elementary that, where a duty is merely ministerial, mandamus lies (see Artis v Keegan, 77 Misc 2d 638; Matter of Bernoff v Amoroso, 188 Misc 845, affd 271 App Div 925; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 7801, C7801:9, p 38).

The constitutional question arises in the context of in-formations lodged against the defendant in the Town Court of Mamakating, Sullivan County, for disorderly conduct, a violation (Penal Law, § 240.20), and resisting arrest, a misdemeanor (Penal Law, § 205.30). Conviction of either could bring imprisonment (see New York Sentence Charts, Chart III). Promptly after his arraignment before one of that court’s two Justices, neither of whom is a lawyer, the defendant brought on a CPL 170.25 (subd 1) motion before the Sullivan County Court, which, as a “superior court having jurisdiction to prosecute [a] misdemeanor charge by indictment * * * may, upon motion of the defendant * * * showing good cause to believe that the interests of justice so require, order that such charge be prosecuted by indictment and that the district attorney present it to the grand jury for that purpose”. A case so prosecuted, would, of course, effect a transfer before a lawyer-judge, since indictments in this State are not prosecutable before Town or Village Courts.

Except to express his dissatisfaction with the prospect of a trial presided over by a jurist who is not admitted to the practice of law, defendant, in support of his motion, as in all the ensuing proceedings in this matter, made no attempt to come within the “good cause”' requirement of the statute. Raising no specific issue as to, for instance, the complexity or simplicity of his case, his insistent position was, and continues to be, that the due process clause of the Fourteenth Amendment of the Federal Constitution automatically entitles him to a “lawyer-judge” on demand.

In turn, the People, vigorously opposing the view that New York’s provisions with regard to qualifications for the office of Town Court Justice suffer from any Federal constitutional deficiency, stressed defendant’s failure to demonstrate good cause. In particular, citing, among other cases, People v Rosenberg (59 Misc 342), it asserted that the case was not intricate, that it involved no difficult questions of law, that no property rights were at stake, that the decision in the case would be of no particular precedential consequence and that the case was not of an exceptional character. Essentially on this rationale, the County Court Judge rejected the application, but without prejudice to the defendant moving under CPL 170.15 (subd 3, par [a]) for a transfer to one of the other Sullivan County local criminal courts whose judicial personnel included Judges who were members of the Bar.

The defendant did not make the CPL 170.15 (subd 3, par [a]) motion. Instead, as indicated, the Legal Aid Society, on behalf of its client, initiated the present article 78 proceeding. It thereby petitioned for a writ in the nature of mandamus from ;the Appellate Division to compel the County Court Judge to grant the relief the defendant had demanded under CPL 170.25 (subd 1). The Appellate Division dismissed the petition by a sharply divided court on the procedural ground that mandamus does not lie. The dissenters, relying on intermediate court commentary on People v Skrynski (42 NY2d 218), would have held that non-lawyer-Judges are constitutionally acceptable “only on condition that a defendant charged with an offense subjecting him to confinement has a constitutional right to resort to the divestiture procedure of CPL 170.25”. (Matter of Legal Aid Soc. of Sullivan County, 73 AD2d 411, 416 [Casey, J., dissenting].)

A good way to start my analysis is with the two relatively recent cases in which, first the Supreme Court of the United States, and then this court, dealt with challenges to the utilization of lay Judges (North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218, supra).

In North v Russell, the Supreme Court, while it discussed the issue in rather broad perspective, confined its ruling to the narrower question on which the case turned. There it was whether a defendant, who is “subject to possible imprisonment, is denied due process when tried before a nonlawyer police court judge with a later trial de novo available under [Kentucky’s] two-tier court system” (North v Russell, supra, at p 329). At the second tier, the Judge would have been a lawyer, but the defendant did not avail himself of the de novo privilege. Instead, he resolutely maintained that his rights were compromised irrevocably when he was forced to proceed to trial before a non-lawyer-Judge in the first instance.

In overruling this contention and validating the statutory scheme, it is significant that the court emphasized that a defendant’s right to trial de novo was “absolute”, “unconditional” and available “[i]n all instances” (North v Russell, supra, at pp 335, 334; emphasis added). The court did not hold, however, that the constitutional viability of trials conducted by lay Judges depended on the existence of a de novo backstop. Bather, that States are free to devise their own safeguards against inroads on due process is apparent from the fact that the court, recalling the “flexibility and leeway” left to the States under our Federal form of government, expressly cautioned against “converting desirable practice into constitutional commandment” (North v Russell, supra, at p 338, n 6, quoting Shadwick v City of Tampa, 407 US 345, 353-354). It did suggest, though, that, when the penalty of confinement looms, whatever the process is, it “commands scrutiny” (North v Russell, supra, at p 334).

It was in People v Skrynski that our court, not too long afterwards, indeed did scrutinize New York’s statutory scheme. Measuring it by what we took to be the Supreme Court’s determination that “so long as defendant has the effective alternative of a criminal trial before a court with a traditionally law-trained Judge”, we found “no evident Federal infirmity” (People v Skrynski, 42 NY2d 218, 221, supra). Specifically, and without elaboration, in our Per Curiam opinion, we held that CPU 170.25 prescribed such an “effective alternative”.

The present case now calls on us to enlarge on Skrynski. In fine, in deciding whether mandamus lies, we are asked whether the statute is an “effective alternative” because it is peremptory in its call for a judicial order of divestiture, or whether it fulfills that function despite the fact that the “superior court”, before which it may be invoked, is to pass judgmentally on whether the character of the case is such that a failure to effect a transfer to a lawyer-Judge could unduly risk a miscarriage of justice. As indicated earlier, I would hold it has to be the former.

Though cognizant of the general rule of statutory construction that “may” should be interpreted permissively, application of such a rule to this statute would render our lay judicial system unconstitutional. Therefore, in this case, we are guided by the principle favoring statutory construction concordant with constitutionality (see, e.g., People v Nieves, 36 NY2d 396, 400).

Specifically, were CPL 170.25 not to be read as mandating removal upon the request of a defendant subject to a term of imprisonment, inevitably some New York defendants would be tried, convicted and sentenced by Justices who were not lawyers. Such a result simply cannot be reconciled with the Supreme Court’s persistent recitation in North that in all cases the Kentucky de novo system provided a defendant, who so desired, with a trial before a lawyer-judge. In North v Russell, it was the defendant’s choice whether to forego a trial presided over by a lawyer-judge. Here, however, only if CPL 170.25 is read as peremptory— a motion which must be granted upon the request of the defendant — does the choice, as to whether a lay- or lawyer-justice shall preside, remain with the defendant.

That every defendant has recourse to the appellate process provides no succor to those who would contend that the statute may constitutionally be read as one permitting a “superior court” Judge discretion in deciding a CPL 170.25 motion. First, I note that section 2021 of the Uniform Justice Court Act does not require the use of a stenographer to record the proceedings, even if a defendant so requests (see Opn St Comp, 78-316, April 21, 1978). Obviously the effectiveness of appellate review decreases precipitously where there is no transcript which can be reviewed and analyzed to evaluate claims of error at nisi prius.

Further, appellate review by lawyer-judges is similarly not a substitute for an initial trial before a lawyer-judge. Even though CPL 470.15 grants an intermediate appellate court broad powers of review, the posture of a case at the appellate level sharply delimits the court’s power. “The rule is well settled that on the review of a conviction in a criminal case where there is any evidence of guilt, the question of reasonable doubt must be left to the jury or trial court, and the verdict or decision on the facts ordinarily must be deemed conclusive and will not be disturbed unless it is perfectly clear that it is against the weight of the evidence” (People v Atlas, 183 App Div 595, 600, affd 230 NY 629). It necessarily follows that the vaunted presumption of innocence simply cannot play a role at the appellate level (see People v Benzinger, 36 NY2d 29, 32).

Moreover, while the appeal is pending, a defendant may well be incarcerated as there is no constitutional right to bail after conviction (Matter of Gold v Shapiro, 45 NY2d 849, affg 62 AD2d 62,65). Again, the situation is in marked, and unfavorable, contrast to that of the one in Kentucky, where a defendant is entitled to bail while awaiting the de novo trial (North v Russell, supra, at p 335).

And, overall, without exhausting our toll of deleterious fair trial consequences at this point, aside from prejudice in fact, one cannot avoid consciousness of the appearance of unfairness that is almost sure to be sensed by a defendant who is jailed after being forced to trial before a Judge who is not a lawyer. For it “is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (Lord Hewart in Rex v Sussex Justices [1924], 1 KB 256, 259).

It is for all these reasons that I would reverse the judgment of the Appellate Division and grant the petition for mandamus.

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

Judgment affirmed, without costs.

      . The relief in the nature of mandamus here sought, a derivative of the common-law writ, is discrete from the more recently developed remedy of mandamus, also available under CPLR article 78, to review official administrative determinations involving the exercise of discretion for which no hearing conforming to due process requirements need be had (8 Weinstein-Korn-Miller, NY Civ Prac, par 7801.04).

      . The inappropriateness of an article 78 proceeding is further illustrated by the facts of this case. Housman was arrested and charged with the relatively minor offenses of resisting arrest (a class A misdemeanor) and disorderly conduct (a violation) on October 2, 1979. His removal motion pursuant to GPL 170.25 (subd 1) was denied on November 19, 1979. In December, 1979 this proceeding was commenced at the Appellate Division, which rendered its decision April 15, 1980. During all this time the trial proceedings have remained in abeyance; many months have been needlessly exhausted in pursuance of article 78 relief.

      . In pertinent part, CPL 170.15 (subd 3, par [a] ) reads: “where a defendant is arraigned upon an information, a simplified information, a prosecutor’s information or a misdemeanor complaint pending in a city court, town court or a village court having trial jurisdiction thereof, a judge of the county court of the county in which such * * * court * * * is located may, upon motion of the defendant or the people, order that the action be transferred for disposition from the court in which the matter is pending to another designated local criminal court of the county, upon the ground that disposition thereof within a reasonable time in the court from which removal is sought is unlikely owing to: (a) Death, disability or other incapacity or disqualification of all the judges of such court”.

      . (See, e.g., Matter of Simpson v Swartwood, 69 AD2d 954 [concurring opn of Greenblott, J.] ; People v Dean, 96 Misc 2d 781.)


author: Gabrielli, J. Jasen, J.

text:
    Federal Insurance Company, Respondent, v Alexander D. Walker, Jr., Individually and as Administrator of the Estate of Helen E. Walker, Deceased, Defendant-Appellant and Third-Party Plaintiff-Respondent. Union Camp Corporation et al., Third-Party Defendants-Appellants.
    Argued March 31, 1981;
    decided May 14, 1981

      POINTS OF COUNSEL

      Charles M. Newman, Barry Singer and William A. Zutt for defendant-appellant and third-party plaintiff-respondent.
    I. The court below was correct in reinstating the third-party complaint, as to do so properly puts the monetary consequences of Morgan’s errors on Morgan. (William v Williams, 23 NY2d 592.) II. As matters of fact and law, the documents signed by the Walkers did not shift to them the monetary consequences of Morgan’s and Union Camp’s errors. (Gross v Sweet, 49 NY2d 102; Hertzog v Harrison Is. Shares, 21 AD2d 859; Rappaport v Phil Gottlieb-Sattler, Inc., 280 App Div 424, 305 NY 594; Van Dyke Prods, v Eastman Kodak Co., 12 NY2d 301; Colton v New York Hosp., 53 AD2d 588, 98 Misc 2d 957; Levine v Shell Oil Co., 28 NY2d 205; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Liff v Consolidated Edison Co. of N. Y., 29 AD2d 665, 23 NY2d 854; Kurek v Port Chester Housing Auth., 18 NY2d 450; Margolin v New York Life Ins. Co., 32 NY2d 149; Ciofalo v Vic Tanney Gyms, 10 NY2d 294.) III. The “circularity” theory urged by Morgan and rejected by the court below does not create any liability on Walker. (Boll v Sharp & Dohme, 281 App Div 568, 307 NY 646; Saladino v Stuyvesant Ins. Co., 39 AD2d 765.) IV. Morgan and Union Camp were negligent. V. Since the documents do not shift liability to Walker, it was improper for Federal to have paid Morgan as demanded. Federal’s recourse is against Morgan. VI. The existence of the surety cannot strip Walker of his claims against Morgan. (Fidelity & Cas. Co. of N. Y. v Finch, 3 AD2d 141; Continental Cas. Co. v National Slovak Sokol, 269 NY 283; American Sur. Co. of N. Y. v Town of Islip, 268 App Div 92.) VII. Federal paid Morgan as a volunteer, and is not entitled to recovery against Walker. (Continental Cas. Co. v National Slovak Sokol, 269 NY 283; Fidelity & Cas. Co. of N. Y. v Finch, 3 AD2d 141; Kinnan v Forty-second St. Ry. Co., 1 Misc 457, 140 NY 183.)

      Richard J. Cunningham, Henry L. King and Ahuva Genack for third-party defendants-appellants.
    The indemnity agreements and bond involved in this case require decedent and Walker to indemnify Morgan Guaranty and Union Camp for any and all liabilities arising out of the issuance of the replacement stock certificate even if such losses occurred by reason of their negligence. Accordingly, the third-party complaint should have been dismissed. (Kurek v Port Chester Housing Auth., 18 NY2d 450; Liff v Consolidated Edison Co. of N. Y., 23 NY2d 854; Levine v Shell Oil Co., 28 NY2d 205; Margolin v New York Life Ins. Co., 32 NY2d 149.)

      Arthur N. Lambert, William R. Mait and Michael Mail-let for respondent.
    I. The court below properly found as a matter of law that plaintiff, is entitled to indemnification from defendant under the terms of the indemnity agreements for the full amount of its loss. (Maryland Cas. Co. v Grace, 292 NY 194; United States Fid. & Guar. Co. v Green, 64 Misc 2d 1, 34 AD2d 935; MacArthur Bros. Co. v Kerr, 213 NY 360; Maryland Cas. Co. v Spector, 28 AD2d 990; Janos v Peck, 21 AD2d 529; Overmyer v Fidelity & Deposit Co. of Md., 554 F2d 539, 48 AD2d 768; Gray Mfg. Co. v Pathe Inds., 33 AD2d 739; Continental Cas. Co. v National Slovak Sokol, 269 NY 283.) II. The agreements of indemnity executed by decedent and defendant in favor of Federal unmistakably encompass the alleged negligent acts of Morgan and Union Camp. (Levine v Shell Oil Co., 28 NY2d 205; Liff v Consolidated Edison Co. of N. Y., 23 NY2d 854; Kurek v Port Chester Housing Auth., 18 NY2d 450; Hogeland v Sibley, Landsay & Curr Co., 42 NY2d 153; Lopez v Consolidated Edison Co. of N. Y., 40 NY2d 605; Nicolosi v Aberthaw-Cowper & Forbes Buffalo, 49 AD2d 670; Dillion v Riverso Constr. Co., 39 AD2d 744, 33 NY2d 530; Hershkowitz v Menorah Caterers, 72 Misc 2d 199; Margolin v New York Life Ins. Co., 32 NY2d 149; Gross v Sweet, 49 NY2d 102.) III. The lost instrument bond and the agreements of indemnity are not exculpatory agreements, nor is there any overriding public policy which requires and warrants their not being strictly enforced. (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Ciofalo v Vic Tanney Gyms, 10 NY2d 29; Phibbs v Ray’s Chevrolet Corp., 45 AD2d 897; Van Dyke Prods, v Eastman Kodak Co., 12 NY2d 301; Johnston v Fargo, 184 NY 379; Gold v Air Transp. Co., 33 AD2d 777; Straus & Co. v Canadian Pacific Ry. Co., 254 NY 407; Krivitsky & Cohen v Western Union Tel. Co., 129 Misc 431; Danna v Con Edison Co., 71 Misc 2d 1029; Goodman v Imperion Manor, 62 Misc 2d 561, 64 Misc 2d 813.)
   OPINION OF THE COURT

Gabrielli, J.

In this case, we are asked to consider whether the terms of an indemnity agreement preclude the indemnitor from maintaining a third-party action in negligence against the indemnitee. Also presented for our consideration is the question whether an indemnitor is obligated to reimburse an indemnitee for losses occasioned by the indemnitee’s own failure to act within a reasonable time in order to mitigate damages. We conclude that both questions should be answered in the negative.

In 1970, Ms. Helen Walker acquired 1,140 shares in Union Camp Corporation. Although she transferred the certificates representing these shares approximately one month after she acquired them, the transfer, for some reason, was never recorded by the corporation or its transfer agent, Morgan Guaranty Trust Company (Morgan). As a consequence, Ms. Walker continued to receive dividends from Union Camp. Her son, Alexander Walker, Jr., who knew she was receiving these dividends but was apparently unaware of the transfer, attempted to locate the corresponding stock certificates among his mother’s personal effects. When he was unable to do so, he suggested to his mother that she ask the corporation to issue duplicate certificates evidencing her ownership of the shares. The record does not make clear whether Ms. Walker remembered at this point that she had earlier transferred the shares, but, in any event, she acquiesced in her son’s suggestion.

The corporation’s transfer agent agreed to the issuance of duplicate stock certificates, but insisted that Ms. Walker execute an instrument attesting to the fact that she had not sold or transferred the original certificates and, further, that she had conducted a diligent search for the originals before applying for duplicates. The instrument also provided that Ms. Walker would indemnify Union Camp Corporation and Morgan against “any and all liabilities, loss, damage or expense in connection with, or arising out of their compliance with [her request for duplicate certificates]”. Finally, the instrument stated that Ms. Walker’s obligation to indemnify Union Camp and Morgan would be secured by a “blanket bond” issued by Federal Insurance Company (Federal), under which Federal was to “defend, indemnify and save harmless Assured [Morgan Guaranty and Union Camp] from and against any and all * * * liabilities, damages, costs * * * and other expenses of every nature * * * by reason of the Original Instrument and/or the issuance of * * * duplicates * * * whether or not caused by, based upon, or arising out of inadvertence, accident, oversight or neglect on the part of Assured”. In exchange for its agreement to assume this obligation, Federal demanded that both Ms. Walker and her son execute another agreement indemnifying it “against any and all loss, damage [and] expense * * * which it shall at any time incur by reason of its [undertaking] ”. The net result of these interlocking indemnity agreements was that Union Camp and Morgan were indemnified against loss by Federal and Ms. Walker, and Federal, in turn, was indemnified against loss by Ms. Walker and her son.

Following the execution of the various indemnity agreements, Morgan issued duplicate stock certificates to Ms. Walker. Shortly thereafter, she sold the shares represented by the duplicate certificates for the sum of $52,800. Approximately two years later, in September of 1975, an audit was conducted and it was discovered that Ms. Walker’s original stock certificates had been transferred by her in 1970. This revelation led Union Camp and Morgan to become concerned about an “overissuance” of Union Camp stock resulting from the issuance of the duplicate certificates. Morgan promptly notified Federal of the problem, and Federal then made a demand upon its indemnitors, the Walkers, to replace the overissued shares.

Ms. Walker’s son, who was at this point administering his deceased mother’s estate, asked Federal to refrain from taking any action while his attorney evaluated the situation. Settlement negotiations ensued, but by February of 1976 it became apparent that Walker was not prepared to make an offer that would be acceptable to the other parties. It was not until August of 1976, however, that Union Camp and Morgan moved to remedy the “overissuance” problem by purchasing replacement shares on the open market. By this time, the common stock of Union Camp had “split” three for two, and, as a consequence, the cost of replacement had risen to $108,515.25.

Pursuant to its blanket indemnity bond, Federal paid Union Camp’s and Morgan’s claim for the cost of replacement. It then commenced an action against Alexander Walker, Jr., and Ms. Walker’s estate for reimbursement. Walker, acting on his own behalf and on behalf of the estate, impleaded Union Camp and Morgan on the theory that their negligence in failing to record the original 1970 transfer was, at least in part, the proximate cause of the loss.

Prior to trial, Federal moved for summary judgment against Walker and the estate. Third-party defendants Union Camp and Morgan then moved for summary judgment dismissing the third-party negligence complaint on the ground that the various indemnity agreements insulated them from liability to the Walkers. Special Term agreed with the contentions of the third-party defendants and dismissed the third-party complaint as requested. The court, however, declined to grant summary judgment to plaintiff Federal for the full amount demanded in its complaint. Instead, the court awarded Federal $52,800, the amount realized by Ms. Walker when she sold the duplicate shares in 1973, and held that the remainder of Federal’s claim should be resolved in a plenary trial. The Appellate Division, however, modified the order of Special Term. The Appellate Division first concluded that the indemnity agreements did not present a bar to a third-party negligence action against Union Camp and Morgan. Additionally, the court held that Federal was entitled to summary judgment in the full amount demanded in its complaint. Following the entry of the order by the Appellate Division, defendant Walker appealed as of right from the modification by which he and the estate of his deceased mother were aggrieved (CPLR 5601, subd [a], par [iii]). Third-party defendant Union Camp and Morgan also appealed pursuant to leave granted by the Appellate Division, and that court also certified the following question of law: “Was the order of this Court, insofar as it denied the third-party defendants-respondents’ motion for summary judgment dismissing the third-party complaint, properly made?”

Turning first to the contentions of the third-party defendants, we conclude that there was no error in the Appellate Division’s decision to reinstate the third-party negligence complaint. The third-party defendants’ motion to dismiss this complaint was based upon the existence of the interlocking indemnity agreements, which, it was claimed, rendered the third-party defendants immune from liability in negligence to Walker and the decedent whose estate Walker represents. A careful analysis of the relationships created by the various indemnity agreements, however, belies this contention.

The decedent, Ms. Walker, agreed “to indemnify and protect [the third-party defendants] from any and all liabilities, loss, damage or expense in connection with, or arising out of [their issuance of duplicate stock certificates] ”. These words of indemnification merely established the decedent’s obligation to hold harmless the third-party defendants in the event that they were held liable to some stranger to the transaction as a result of their decision to issue duplicate stock certificates. As such, the agreement simply represented an allocation of the risk of liability among the several contracting parties (see Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153,158). Nothing in the language of the agreement, however, indicates an intention on the part of the decedent to waive her own rights against the third-party defendants or to exonerate them from direct liability to her for pecuniary injuries resulting from their negligence (compare Gross v Sweet, 49 NY2d 102, with Hogeland v Sibley, Lindsay & Curr Co., supra, and Levine v Shell Oil Co., 28 NY2d 205). Thus, the indemnity agreement executed by Ms. Walker cannot legitimately be invoked by the third-party defendants as a defense to the negligence claim brought on behalf of her estate.

Similarly, the third-party defendants cannot rely upon any of the various indemnity agreements as a defense to the negligence claim asserted by defendant Alexander Walker, Jr., in his individual capacity. Walker was not a party to the indemnity agreement between the decedent and the third-party defendants. Instead, he agreed only to indemnify plaintiff Federal, the surety, from loss in the event that Federal was obliged to reimburse the third-party defendants for claims made against them. Inasmuch as Walker’s obligations under the lone indemnity agreement he signed ran solely to Federal, the agreement cannot be used by the third-party defendants to defeat Walker’s individual claim against them. Thus, the Appellate Division acted correctly in refusing to dismiss the third-party complaint.

We cannot approve, however, that portion of the Appellate Division decision which granted summary judgment to plaintiff surety, Federal, in the full amount demanded in its complaint ($114,842.25). The parties discovered in September of 1975 that the original stock certificates, which were previously thought to have been lost, had actually been transferred in 1970 by the decedent. Yet, no efforts were made to correct the apparent over-issuance of shares until August of 1976, when Union Camp and Morgan purchased an equivalent number of shares on the open market and then obtained reimbursement from the surety. By that time, the price of the shares had risen dramatically above the price that the corporation would have had to pay had it entered the market promptly in September of 1975.

Defendant Walker does not dispute that both he and the decedent’s estate are obligated to reimburse Federal by virtue of the separate indemnity agreements that were executed in the surety’s favor. He does, however, contend that he should not be held liable for the entire amount which was ultimately paid for the shares ($108,515.25), since the third-party defendants waited nearly a year after the over-issuance was discovered before entering the market in an effort to “cover”. Asserting that this delay was unreasonable under the circumstances, defendant Walker argues that the increase in price which was attributable to the delay should be absorbed either by the third-party defendants or by the surety, which failed to challenge the amount of reimbursement demanded by Union Camp and Morgan.

We agree with defendant Walker’s contention that, under the circumstances of this case, neither he nor the decedent’s estate should be required to reimburse Federal for those expenses that are attributable to any “unreasonable” delay by the parties in correcting the overissuance problem. The surety agreed to reimburse the third-party defendants for any loss they might reasonably sustain by virtue of the issuance of the duplicate stock certificates. The surety was not, however, obliged to remunerate the third-party defendants for losses occasioned strictly by their own failure to take remedial measures within a reasonable period of time. Similarly, although defendant Walker and decedent had agreed to indemnify Federal in the event it was obliged to pay the third-party defendants, neither Walker nor the decedent’s estate should be required to reimburse the surety for any portion of its payment which represented the loss arising from the third-party defendants’ lack of diligence. Indeed, a contrary result would be particularly inequitable in this case, since Federal was fully aware of and, in fact, acquiesced in the third-party defendants’ decision to postpone corrective action. Under such circumstances, Federal should not be permitted to pass on any unnecessary loss resulting from delay to defendant Walker.

Whether any portion of the third-party defendants’ 11-month delay in “covering” was unreasonable, however, remains an open question. As the Appellate Division noted, the third-party defendants’ failure to act promptly may have been attributable, at least in part, to the settlement negotiations which had been initiated by defendant Walker. On the other hand, there may be some question as to whether it was reasonable for the third-party defendants to postpone the purchase of substitute shares on the strength of these negotiations. Moreover, the third-party defendants have not offered any explanation as to why they failed to act between February of 1976, when the settlement negotiations apparently broke down, and August of that year, when they finally entered the market to purchase substitute shares. Under these circumstances, the question of the “reasonableness” of the delay is one that can only be resolved by the trier of fact after a plenary trial on the issue. Inasmuch as defendant Walker does not dispute that he is liable to plaintiff surety for at least $52,800, the amount for which the duplicate certificates were sold in 1973, the case should be remitted for a trial on the question of the remaining damages, if any, due to Federal on its first and second causes of action as well as on the question of the third-party defendants’ liability to Walker on the negligence causes of action asserted in the third-party complaint.

Accordingly, on the appeal by the third-party defendants, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs, and the question certified answered in the affirmative. On the appeal by defendant third-party plaintiff Walker, the oder of the Appellate Division, insofar as appealed from, should be modified, with costs, and the case remitted for further proceedings in accordance with the opinion herein and, as modified, affirmed.

Jasen, J.

(dissenting in part). I agree with the majority that the third-party defendants’ motion to dismiss defendant Walker’s third-party negligence complaint was properly denied. The provisions of the decedent’s agreement do not evince an unmistakable intent to allow indemnification for the third-party defendants’ own negligence which can be “clearly implied from the language and purposes of the entire agreement, and the surrounding facts and circumstances.” (Margolin v New York Life Ins. Co., 32 NY2d 149,153; see Levine v Shell Oil Co., 28 NY2d 205.) I cannot join, however, in the majority’s disposition of defendant Walker’s appeal. In my view, based on the clear and unambiguous language of the agreements involved herein, the plaintiff surety properly was awarded summary judgment against defendant Walker and the decedent’s estate for the full amount demanded in the complaint.

In order to induce the plaintiff surety to assume liability for the replacement shares under its blanket bond, both defendant Walker and the decedent executed indemnification agreements for the benefit of the surety. The decedent’s agreement provided that she would “indemnify and protect [the plaintiff surety] * * * from any and all liabilities, loss, damage or expense in connection with, or arising out of” the surety’s assumption of liability for the replacement shares under its blanket bond with the third-party defendants. Similarly, defendant Walker executed a personal agreement which provided that he would “indemnify and save harmless [the plaintiff surety] from and against any and all loss, damage, expense and attorneys’ fees which it shall at any time incur by reason of * * * assuming liability for the issuance of [the replacement shares] under the said Blanket Lost Original Instrument Bond, or its payment of any claim or liability thereunder.” In short, the Walkers clearly agreed to indemnify the plaintiff surety for any loss it might sustain as a result of assuming liability under its blanket bond for the replacement shares.

The blanket bond specifically obligated the plaintiff surety to: “defend, indemnify and save harmless [the third-party defendants] from and against any all liabilities, losses, damages, costs, charges, counsel fees and other expenses of every nature and character by reason of the Original Instrument and/or the issuance of a duplicate or duplicates in lieu thereof * * * whether or not caused by, based upon, or arising out of inadvertence, accident, oversight or neglect on the part of [the third-party defendants] or any of them, or their respective officers, agents, clerks, or employees”. The blanket bond further provided that the plaintiff surety’s obligation to the third-party defendants would accrue “on demand” and that this liability was “absolute and unconditional.”

Notwithstanding the clear and all-embrasive language of these agreements, the majority concludes that the plaintiff surety is not entitled to recover from the Walkers the full amount it has paid to the third-party defendants as a result of the loss occasioned by the issuance of the replacement shares. In the face of a provision which imposes liability on the plaintiff surety for “any and all” losses, the majority concludes that the surety only was obligated to reimburse the third-party defendants for losses they might “reasonably sustain” due to the issuance of the duplicate stock. Moreover, according to the majority, the plaintiff surety was not “obliged to remunerate the third-party defendants for losses occasioned strictly by their own failure to take remedial measures within a reasonable period of time.” Yet, the blanket bond expressly required the surety to indemnify the third-party defendants even for losses occasioned by their own “inadvertence, accident, oversight or neglect” in issuing the duplicate certificates. I simply cannot join in such creative judicial interpretation which engrafts language onto the clear provisions of the agreements and imposes conditions where the contracting parties have seen fit not to do so.

The indemnification agreements executed by the Walkers require that they reimburse the plaintiff surety for any and all loss which it might suffer in connection with assuming liability for the replacement shares under its bond of indemnity issued.in favor of the third-party defendants. This assumption of liability by the plaintiff surety under its blanket bond, which was specifically requested by the Walkers, obligated the surety to reimburse the third-party defendants “on demand”. Furthermore, this obligation on the surety’s part was without qualification and, contrary to the majority’s view, without regard to any “lack of diligence” by the third-party defendants.

By virtue of its undertaking, the plaintiff surety was required and did make payment to the third-party defendants for the loss arising out of the issuance of the duplicate stock certificates. In paying this claim, the surety performed its contractual obligation in accordance with the express terms of its bond. That being the case, the plaintiff surety is entitled to reimbursement from defendant Walker and the decedent’s estate for the full amount demanded in the complaint.

For these reasons, I would affirm the order of the Appellate Division, insofar as appealed from, in all respects.

Chief Judge Cooke and Judges Jones, Wachtler and Fuchsberg concur with Judge Gabrielli; Judge Jasen dissents in part and votes to affirm in all respects in a separate opinion; Judge Meyer taking no part.

On appeal by third-party defendants: Order, insofar as appealed from, affirmed, with costs. Question certified answered in the affirmative.

On appeal by defendant and third-party plaintiff Walker : Order, insofar as appealed from, modified, with costs, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . Federal also paid $6,327 to Morgan as reimbursement for overpaid dividends resulting from the issuance of the duplicate stock certificates.

      . We recognize that our decision permitting the third-party complaint to stand will create a theoretical “daisy chain” of sorts, since if defendant Walker is permitted to recover in negligence from the third-party defendants, the latter would presumably have a second claim for indemnification against plaintiff surety, Federal. And, if such a claim were asserted, Federal, in turn, could theoretically assert a claim for indemnification against defendant Walker on the basis of his agreement to hold it harmless against loss. That the potential for this type of circular litigation exists, however, does not provide a basis for dismissing the third-party complaint.
      The only issue before this court on the third-party defendants’ appeal is whether any of the various indemnity agreements signed by the parties constitute a complete defense to the third-party negligence claim. Thus, the possibility that the parties may assert rights in the future which would have the effect of depriving defendant Walker of the fruits of his victory (assuming he is ultimately successful) need not concern us. While the parties may find some unwanted irony in their present situation, it must be recognized that it was they and not the courts who created the danger of “round-robin” recoveries through their interlocking indemnity agreements.

      . The dissenter’s suggestion to the contrary would lead to an implausible and unacceptable result. Under the dissenter’s view, the indemnitee would be in a position to unilaterally increase the indemnitor’s liability by simply sitting back and refusing to take reasonable steps to cover its loss. As time passed, the cost of “covering” could escalate and, as a consequence, the indemnitor’s obligation would spiral. Indeed, unless some durational limit is placed upon the indemnitee’s freedom to act, there is nothing to prevent the indemnitee from willfully multiplying the indemnitor’s loss, since there would be no incentive for the indemnitee to act in an economically reasonable manner. The economic waste which would result in situations such as this is alone sufficient reason to reject the approach urged by the dissent.